?:l«^«i>>;*^fe«Sf»^^ •>■ SV.W.vMiVinfVVAW V!lAVf CMIM Olorn^ll ICam B>rl|nolIItbrarg iiataljaU Equttg CHoIlMtton (gift of l. 31. il(ar0l}aU. 5I-ffi-?5. 1094 CORNELL UNIVERSHY LIBRARY 1924 084 264 294 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084264294 THE STATUTES, RULES OF COURT, AND GENERAL ORDERS EELATINO TO THE PRACTICE AND JUEISDICTION OF THE Chancery Division of the High Court of Justice and the Court of Appeal. ^V^ITJH COPIOUS NOTES. BEING THE SIXTH EDITION OP MORGAN'S CHANCERY ACTS AND ORDERS, THOROUeHLY REVISED AND CONSIDERABLY ENLARGED. BY THE EIGHT HONOURABLE GEORGE OSBOENE MOEGAN, ft.C, M.P., Mer Majesty's Judge Advocate General, ADD EDWAED ALBEET WUETZBUEG, Of Lincoln's Inn, Barrister-at-laiv. LONDON: STEVENS AND SONS, 119, CHANCERY LANE, 1885. LONDON: C. r. SCWOBTH, PBINTBB, OBEAT NEW STSEEI, FBTTBB LANS — ^E.O. TO TKB EIGHT HONOUEABLE ROUNDELL, EARL OF SELBORNE, LORD BIGH CSANGELLOR OF GREAT BRITAIN, ETC., ETC., MDEE TUTIOSE AUSPICES THE GEEAT WORK OF CONSOLIDATING INTO AN HARMONIOUS WHOLE THE VAEIOUS AND DISCORDANT SYSTEMS OF ENGLISH JUDICATURE WAS SUCCESSFULLY INAUGURATED, IS BY PERMISSION Respectfully Inscribed. PREFACE TO THE SIXTH EDITION. In preparing the present Edition for the Press, the Editors, while omitting nothing which they considered to be of practical utility, haye eHniinated everything calculated unnecessarily to swell the bulk and cost of the Volume. The last Edition, which was brought out under circumstances of exceptional pressure, has been thoroughly revised, and the greater part of it has been entirely re- written; every case, within the scope of the wort, has been carefully noted up down to the date of publication ; and in a word, no effort has been spared to retain for the present Volume the popularity which its predecessors have now for more than a quarter of a century enjoyed. G. O. M. E. A. W. February, 1885. TABLE OF CONTENTS. SoLioiTOEs Act, 1843 . . . . . . . . 1 SoLiciTOES Act, 1860 . . . . . . .15 Attorneys and Solicitoe8 Act, 1870 . . . . . 19 Lands Clauses Consolidation Act, 1845 . ' . . .24 Parliamentary Deposits Act, 1846 . . , . . 49 Trustee Eelief Act, 1847 . . . . . .50 Trustee Belief Act, 1849 . . . . . . . 60 Trustee Act, 1850 . . . . . . ». 61 Trustee Extension Act, 1852 . . . . . . 90 Charitable Trusts Act, 1853 . . . . . .94 Infants' Settlement Act . . . . . . . 96 Custody of Ihtants Act, 1873 . . . . . .97 Lord St. Leonards' (Property and Trustees) Act, 1859 . . 99 La-wofPropertyFurther Amendment Act, 3860 . . .104 Vendor and Purchaser Act, 1874 . . . . . . 106 conveyancina and law of property act, 1881 . . .109 coitteyancing act, 1882 . . . . . . . 127 EuLEs UNDER Conveyancing Acts, 1881, 1882 . . . .131 Settled Land Act, 1882 . . . . . . . 139 Settled Land Act Eules, 1882 . . . . . .157 Settled Land Act, 1884 . . . . . . . 165 Eailwat Companies Act, 1867 . . . . • .167 Judgment Act, 1864 . . . . • • . . 177 Partition Act, 1868 . . . • • • -179 Partition Act, 1876 . . . . • • . . 184 Debtors Act, 1869 . . . . • • .187 Married Women's Property Act, 1882 . . . . . 192 Petition of Eight Act, 1860 . . • • • .201 Chancery Funds Act, 1872 . . . . ■ . . 203 Chancery Funds Amended Orders, 1874 . . . .211 JxnJicATUBE (Funds, &c.) Act, 1883 . . . . . . 213 viii TABLE OF CO^fTENTS. PAGEl Supreme Court Fitwds Rules, 1884 . . . • • 215 I. Operation of Rules and Interpretation of Terms . ■ • 21o 1. Oommencement of Rules and short title . • .215 2. Repeal of existing Rules . . . • • • 215 3. Interpretation of terms . . ■ • .215 II. Preparation of Orders in the Chancery Division and in Lunacy to he acted on by the Paymaster, and particulars relating thereto .217 4. Application of Rules 5 to 27 inclusive . . .217 6. Order for funds to be brought into Court to have a Lodg- ment Schefule . . . • • • 217 6. Order for funds to be paid out, &c. to have a Payment Schedule 217 7. When a separate account is opened . . . • 218 8. When both a Lodgment and Payment Schedule to be annexed ....... 218 9. Separate Schedule for each ledger credit . . ■ 218 10. Instructions to Paymaster to be solely contained in Schedules . . . . . • .218 11. Schedule to state when sums are to be ascertained by cer- tificate, &c . . . . 219 ] 2. Certificate for payment of taxed costs . . . 219 13. Interest how ascertained . . . . . 219 14. When the day to which interest is payable cannot be ascer- tained 219 15. When interest certified by a Chief Clerk, &c. . . . 219 16. When interest to be ascertained by affidavit . . 220 17. Deduction of income tax from interest . . . . 220 18. Documents on which any dealings by the Paymaster are made contingent to be described .... 220 19. Periodical payments . . . . . . 220 20. Legacy and succession duty ..... 220 21. Payment, transfer, or delivery to trustees, &c. . . . 221 22. Draft Schedule to be prepared by party having conduct of proceedings ...... 221 23. Orders how drawn up and entered . . . . 221 24. Authentication and record of Orders, and copy of Schedules for Paymaster ...... 221 25. Paymaster to act on copy of Schedules . . . . 222 26. Additional copies of printed Orders .... 222 27. Amendment of accidental errors in printed Orders . . 222 IV. Lodgment of Funds in Court ..... 222 29. AU funds lodged in Court to be placed to the account of the Paymaster . . . . . . . 222 30. Manner of lodgment of funds in Chancery Division, and particulars to be stated in request. Lodgment in Court in actions for debt or damages .... 223 31. Conditional lodgment of money at the Bank in urgent cases 223 33. Lodgments under Orders XXII. and XXXI. of the Rules of the Supreme Court, 1883, to be distinguished in Pay Office books '..... 224 35. Requests and directions may be sent by post . . , 224 f ABLE OF CONTENTS. k Stjpeeme Cotiet Funds Rules, ISS-i— continued. IV, Lodgment of Funds in Court — continued. ' page 36. Persons may bring funds into Court in the Ohancery Division, thougli time limited by Order has expired , 224 37. Upon receipt or transfer of funds, direction to be returned to Paymaster . . . . . . . 224 38. Certificate of lodgment to be filed .... 225 39. When money is lodged Tinder Act 8 Vict. c. 18, s. 69, dis- ability to be stated . . . . . . 225 40. Money lodged under the Copyhold Acts _to be specially described ....... 225 41. Lodgments imder the Trustee Eelief Act (1 & 11 Vict. c. 96) 225 42. Credit to which proceeds of securities and dividends are to be placed . . . .» . . .226 VI. Payment, Delivery, and Transfer of Funds out of Court, and other dealings with Funds . . . . . . 226 44. Payment out of Court of money lodged in actions for debts and dai^ages ...... 226 45. In other cases funds to be dealt with only in pursuance of an Order . . . . . . . 227 46. A copy of every Payment Schedule or Order dealing with funds in Court to be left at Pay Office . . . 227 47. Paymaster to prepare directions giving effect to Orders upon receipt of the necessary authority and information . . 228 48. Payments may be made by post .... 228 49. Paymaster's directions to be sufficient authority to the Bank or other Company . . . . . . 228 50. Discharge to Paymaster ..... 228 52. Payments to oflloial persons to be made by transfer . . 229 53. Payments for securities purchased ; and transfers of securi- ties sold . . . . . . .229 54. Accounts to which investments, sales, &o., are to be credited 229 55. Application of dividends accruing on securities transferred 229 56. When such dividends have been invested . . . 230 57. When dividends otherwise applicable have been invested . 230 58. Dividends on residue . . . . . . 230 59. Application of money or dividends placed on deposit after date of Order dealmg therewith .... 230 60. Application of interest on money placed on deposit after date of Order directing its investment . . . 230 61. Funds ordered to be paid or transferred to women who afterwards marry ...... 230 62. Payments, &c. to representatives of deceased persons . . 231 63. Payments, &c. to partners ..... 231 64. Payments, &c. to surviving representatives . . . 231 65. Within what time probate or letters of administration must have been granted ..... 232 66. Payment of legacy or succession duty . . . . 232 67. Carrying over fees on proceedings and taxation . . 232 68. Deduction of income tax on payments of or out of dividends 232 VII. Investments ........ 233 69. Investment of accruing dividends under an Order . . 233 70. Purchase of Exchequer bills or bonds . . . 233 X TABLE OF CONTENTS. Supreme Cotjet Funds Eules, 1884 — continued. VII. Investments — continued. PAGE 71. Bank to renew Exchequer biUs, and to receive principal and interest of securities when paid off . . • • 233 72. Limit of amount to be invested . . • • 234 73. Investment of money lodged under 36 Geo. III. c. 52. (Infant legatees.) . . .. • . . 234 74. Investment of money lodged under the Trustee Belief Act . 234 75. Investing stayed or discontinued on request . . ■ 235 VIII. Money on Deposit, and Interest thereon .... 235 76. Money to be placed on deposit ,* . • • • 235 77. Money not to be placed on deposit in certain cases . . 235 78. When money shall be withdrawn from deposit . . . 236 79. Time for placing money on deposit .... 236 80. As to placing on deposit cash arising from conversion of Government securities . . • • • 236 81. No interest computed on a fraction of 12. . • • 236 82. For what periods interest is to be computed . . . 236 83. "When interest is to be credited .... 237 84. Mode of calculating interest in certain cases on parts of money withdrawn ....•• 237 85. Placing of interest on deposit . . • • • 237 IX. Exchange or Conversion of Qovernment' Securities, and Transactions with the National Debt Commissioners . . . 237 86. Exchanges of securities in lieu of actual purchases and sales 237 X. Calculation of Residues, Evidence of Life, &c. . . . 238 94. Calculations of residues to be made in Pay Office . . 238 95. Evidence of Ufe, &c. . . . . . • 238 96. Affidavits in other cases . . . . . . 238 XI. Copies of Orders and other Documents for Audit Office . . 238 97. Office copy of schedules, &c. to be sent to Audit Office . . 238 98. Office copies of certificates and other documents to be sent . 238 XII. Miscellaneous . . . . . . . . 239 99. Paymaster to give certificates of funds in Court . . 239 100. Paymaster, may issue transcripts of accounts and furnish , other information . . . . . . 239 101. List of dormant funds, &c. to be made trienniaUy and published . . . . . . .239 102. Transfer of small balances to a special account . . 240 103. Titles of accounts not to exceed 36 words . . . 240 104. Outstanding cheques of late Accountant-General . . 240 105. Index of documents filed ..... 240- 106. Names and addresses of suitors . . . . . 241 107. Paymaster's directions to be issued and signed as Treasury may prescribe . . . . . .241 108. Identification of persons to be paid . . . . 241 109. When stocks or shares of companies or other securities are converted . . . . . .241 110. When allotments of new stock are made by companies . 241 111. Eules not to apply to District Eegistries . . . 241 Table of contents. xl SxTPEEMB OOTJET Ftwds Eules, 188i— continued. Appendix No. 1. has-e Form of Lodgment Schedule referred to in Rule 3, and specimen Lodgment Schedules . . . . " . . 242 Appendix No. 2. Form of Payment Schedule referred to in Rule 6, and specimen Payment Schedules ..... 243 Appendix No. 3. Form of combined Lodgment and Payment Schedule referred to in Bule 8 . , . . . . . 244 Appendix No. 5. Form of Request for Lodgment of Money in Chancery Division referred to in Rule 30 . . . . .245 Appendix No. 6. Form of Request for Lodgment or Transfer of Securities in Chancery Division referred to in Rule 30 . . . 245 Appendix No. 7. Form of Requdfet for Lodgment in Chancery Division, in an action for debt or damages, referred to in Rule 30 . 246 Appendix No. 11 (A). Form of Request for Payment of Money lodged "in satis- faction," referred to in Rule 44 (A) . . . . 247 Appendix No. 11 (J5). Form of Request for Payment of Money lodged " against claim" referred to in Rule 44 (B) . . . . . 247 Appendix No. 12. Form of Request for a remittance by Post of Money payable under an Order of the Court referred to in Rule 48 . . 248 JuDicATUBE Act, 1873 . JiroioATUBE Act, 1875 Appellate Jtjeisdiction Act, 1876 Jtjdioatube Act, 1877 Jtjdicattibe (Oeficees) Act, 1879 Jtjdicatuke Act, 1881 judicattjbe act, 1884 . 248 277 286 290 291 296 301 RULES OF THE SUPREME COURT, 1883 and 1884 . Oedeb I. — ^Form and Commencement of Action. Rules 1 to 2 n. — Writ of Summons. Rules 1 to 8 . TTT. — Indorsement of Claim. Rules 1 to 8 . IV. — Indorsement of Address. Rules 1 to 4 V. — Issue of Writs of Summons. 1. Place of Issue, Rules 1 to 4 . 2. Assignment of causes. Rules 5 to 9 3. Generally. Rules 10 to 14 . ■ VI.— Concurrent Writs. Rules 1 to 2 Vn. — 1. Disclosure by Solicitors, &o. Rules 1 to 2 . 2. Change of Solicitors. Rule 3 . . . 305 305—306 306—307 307—309 309—311 311 311—313 313—314 314 314—315 315 TABLE 01' CON'TENTS. EULES OF THE SUPREME COURT, 1883 AMD 1884- Ord. VIII.— Renewal of Writ. Rules 1 to 3 . IX.--Service of Writ. 1. Mode. Rules 1 to 2 2. Particular Defendants. Rules 3 to 5 3. Partners, &o. Rules 6 to 8. 4. Particular Actions. Rule 9 5. Generally. Rule 15 X. — Substituted Service. Rule 1 XI. — Service out of Jurisdiction. Rules 1 to 7 Xn. — Appearance. Rules 1 to 30 XIII. — Default of Appearance. Rules 1 to 14 XIV. — Summary Judgment. Rules 1 to 6 . XV. — Application for Account. Rules 1 to 2 . XVI.— Parties. 1. Generally. Rules 1 to 13 2. Partners. Rules 14 to 15 . 3. Persons under Disability. Rules 16 to 21 4. Paupers. Rules 22 to 31 . 5. Administrations, &c. Rules 32 to 47 . 6. Third Parties. Rules 48 to 55 XVII.— Cbange of Parties by Death. Rules 1 to 10 XVIII. — Joinder of Causes of Action. Rules 1 to 9 XIX.— Pleading Generally. Rules 1 to 27 XX. — Statement of Claim. Rules 1 to 8 XXI. — Defence and Counterclaim. Rules 1 to 21 . XXII. — Payment into Court. Rules 1 to 18 XXni.— Reply. Rules 1 to 6 XXrV. — Matters arising pending the Action. Rules 1 to 3 XXV. — Proceedings in lieu of Demurrer. Rules 1 to 5 XXVI. — Discontinuance. Rules 1 to 4 . XXVII.— Default of Pleading. Rules 1 to 15 XXVIII.— Amendment. Rules 1 to 13 XXX. — Summons for Directions. Rules 1 to 3 XXXI.— Discovery. Rules 1 to 28 XXXII. — ^Admissions. Rules 1 to 9 . XXXIII. — Issues, Inquiries, and Accounts. Rules 1 to 9 XXXIV.— 1. Special Case. Rules 1 to 8 2. Issues of Pact. Rules 9 to 12 XXXV.— District Registries. Rules 1 to 24 . XXXVI.— Trial. 1. Place. Rules 1 to la. 2. Mode of Trial. Rules 3 to 10 , 3. Notice and Entry. Rules 11 to 21 . 4. Entry in District Registries. Rules 22a to 5. London and Middlesex. Rule 29 . 6. Papers. Rule 30 . . . 7. Proceedings. Rules 31 to 42 8. Assessors, &c. Rules 43 to 55 . 9. Writ of Inquiry. Rules 56 to 68 . XXXVn.— Evidence. 1. Generally. Rules 1 to 4 2. Examination of Witnesses. Rules 5 to 25 3. Subpoena. Rules 26 to 34 4. Perpetuating Testimony. Rules 35 to 38 5. Examiners of the Court. Rules 39 to 50 continued. PAGE 315—316 316 317—318 318—319 319 319 320 320—322 322—326 326—330 330—332 332 333—337 337—338 338—340 340—341 342—347 347—350 350—353 353—354 354—360 361—362 362—365 365—368 369—370 370—371 371—372 373—374 374—377 377—381 381 381—394 394—396 397—400 400—403 405—406 406—410 410—411 411—413 413—415 415-416 417 417 417—419 419—421 421—422 422—423 423—428 428—429 429—430 430—432. 28. TABLE OF CONTENTS. RULES OF THE SUPREME OOURT, 1883 and 188i— continued. Okd. page XXXVIII.— Affidavits. 1. Affidavits. Rules 1 to 19 . . 433--438 2. Chambers. Rules 20 to 2-t . . . 438—439 3. Trial. Rules 25 to 30 . . . . 439—441 XXXIX.— Motion for New Trial. Rules 1 to S . . 441—442 XL.— Motion for Judgment. Rules 1 to 10 . . . 442—444 XLL— Entry of Judgment. Rules 1 to 10. . . 444—446 XLTI.— Execution. Rules 1 to 31 . . . . 446—452 2. Discovery in aid. Rules 32 to 34 . . 452 — 453 XLin.— "Writs of Fi. Fa., &c. Rules 1 to 7 . . . 453—454 XLIV. — Attachments. Rules 1 to 2 . . . . 455 XLV.— Attachment of Debts. Rules 1 to 9 . . . 455—458 XLYI.— Charging Stock. Rules 1 to 13 . . . 458—462 XLVIL— Writ of Possession. Rules 1 to 3 . . . 462—463 XLVm.— Writ of Delivery. Rules 1 to 2 . . . 463 XLIX.— Transfers, &c. Rules 1 to 8 . . . . 463—465 L. — Interlocutory Orders. 1. Interlocutory Orders. Rules 1 to 15a 466—471 2. Receivers. Rules 16 to 22 . . . . 471—473 3. Liquidators. Rules 23 to 24 ... 474 LI. — Sales by Court in Chancery Division. Rules 1 to 6 474—476 2. Conveyancing Counsel. Rules 7 to 13 . . 476 — 477 Ln.— Motions. Rules 1 to 22 .... 477—482 Lm.— Mandamus. Rules 1 to 4 . . . . 482—483 LTV.— Chambers. 1. General. Rules 1 to 10 . . 483—485 LV. — Chambers in Chancery Division. 1. General. Rules 1 to 2 . . . . . 485 2. Administrations and Trusts. Rules 3 to 14 . 488 — 491 3. Powers and Duties of Chief Clerks. Rules 15 to 18 . . . . . . 492—493 4. Assistance of Experts. Rule 19 . . . 493 5. Summonses ia Chambers. Rules 20 to 24 . 494 — 495 6. Proceedings relating to Infants. Rules 25 to 27 495—496 7. Documents to be left at Chambers. Rules 28 to 31 496 8. Summonses to proceed. Rules 32 to 37 . 496 — 497 9. Summons Book. Rules 38 to 39 . . . 498 10. Attendances. Rules 40 to 43 . . . 498—499 11. Advertisements for Creditors and Claimants. Rules 44 to 61 499—503 12. Interest. Rules 62 to 64 . ' . . 503—504 13. Certificates of the Chief Clerk. Rules 65 to 71 504—506 14. Further consideration. Rule 72 . . . 506 15. Remstering and drawing up of Orders in . Chambers. Rules 73 to 75 . . . 507 LVn.— Interpleader. Rules 1 to 15 . . . . 507—509 LVTH.— Appeals. Rules 1 to 19 . . . • • 509—518 LX.— Officers. Rules 1 to 4 .... 519 LXI.— Central Office. Rules 1 to 33 . . . . 519—524 LXn.— Chancery Registrars. Rules 1 to 18 . . 531—534 LXm.— Vacations. Rules 1 to 16 . . . . 534—537 LXIV.— Time. Rules 1 to 14 . . . . 337—539 xvi TABLE OP CONTENTS. „ TtT PAGE Section rv. Actions included in Ord. III. r. 6, classes A., B., 0., D., E. and F. 592-593 Section V. Actions for damages for breach of contract or duty arising out of con- ^^^ tract ..••■•■■■ Section VI. Actions claiming injunctions, damages, or declarations of right founded on wrongs ....•■• 593—595 Section Vii. Actions for recovery of land, &c. . . ■ • • • 596 Appendix D. Forms of Defence to he used pursuant to Ord XIX. r. 5. Section I. General form 596—597 Section II. To actions specially assigned to the Chancery Division by sect. 34 of the Principal Act. Appendix 0., Sect. n. . . . 597 — 598 Section IV. To actions included in Ord. III. r. 6, Classes A., B., C, D., E. andF. . . . . . . . . 699—600 Section V. To actions for damages for breach of contract or duty. Appendix C, Sect. V. . . . . . . . . . 600 Section VI. To actions claiming injunctions, damages, or declarations of right, founded upon -wrongs. Appendix C, Sect. VI. . . 600—601 Section VII. To actions for recovery of land. Appendix C, Sect. Vll. . . . 601 Section VHI. Counter-claims ........ 601 Appendix E. Forma of Reply, &c, to he used pursuant to Ord. XIX, r. 5. Section I. General form ...... 602 Section II. Example of a statement of claim, defence, and reply . . gno ono Section in. Defence, including an objection in point of law , , TABLE 01' CONTENTS. APPENDICES TO EULES OF SUPREME COTTRT:— continued. Appendix F. Forms of Judgment. PAGE 1. Default of appearance and defence in case of liquidated demand . 604 2. Interlocutory judgment in default of appearance or defence where demand unliquidated , . . . . . . 604 3. Judgment in default of appearance in action for recovery of land . 604 4. Judgment in default of appearance and defence after assessment of damages . . . . . . . . . 604 0. Judgment after appearance and order under Ord. XIV., r. 1 . 605 6. Judgment at trial -without a jury . . . . . . 605 7. Judgment after trial with a jury ..... 605 8. Judgment after trial before referee . . . . . 605 9. Judgment after trial of questions of account by referee . . 606 10. Judgment upon motion for judgment . . . . . 606 11. Judgment after trial by Court without jury .... 606 12. Judgment in pursuance of order . . . . . . 606 13. Judgment on certificate of registrar of County Court . . 607 14. Judgment for defendant's costs on discontinuance . . . 607 15. Judgment for plaintiff's costs after confession of defence . . 607 16. Judgment for costs after acceptance of money paid into Court . . 607 17. Judgment where no judgment entered at trial by jury . . 608 18. Judgment on motion after trial of issue . . . • . 608 Appendix Q. 1. 2. 3. 4. 5. 6. 7. 8. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. Part I. Forms of Prwcip Fieri facias .... Elegit ..... Venditioni exponas Fieri facias de bonis ecclesiasticis Sequestrai-i facias de bonis ecclesiasticis Writ of sequestration . "Writ of possession . "Writ of delivery Writ of attachment Distringas against ex-sheriff . Inquiry . . . • Certiorari .... Prohibition . . . • Mandamus .... Habeas corpus ad testificandum . Commission to examine witnesses Commission of partition Amended summons Eenewed summons . Subpoena .... Entry of action for trial . Entry of appeal Entry for argument generally M. 608 609 609 609 609 609 610 610 610 610 610 611 611 611 611 612 612 612 612 612 613 613 613 XT! TABLE OF CONTENTS. Section IV. fAGE Actions included in Ord. in. r. 6, classes A., B., 0., D., E. and F. 592—593 Section V. Actions for damages for breach, of contract or duty arising out of con- tract ......... 593 Section VI. Actions claiming iujunctions, damages, or declarations of right founded on wrongs . . . . . ■ . . 593 — 595 Section VII. Actions for recovery of land, &o. . . . . . . 596 Appendix D. Forma of Defence to le used pursuant to Ord XIX, r. 5. Section I. General form ....... 596 — 697 Section II. To actions specially assigned to the Chancery Division by sect. 34 of the Principal Act. Appendix C, Sect. II. , . . 597 — 598 Section IV. To actions included in Ord. m. r. 6, Classes A., B., C, D., E. andF. . . . . . . . 699—600 Section V. To actions for damages for breach of contract or duty. Appendix C, Sect. V. . . . . . . . . ! 600 Section VI. To actions claiming injunctions, damages, or declarations of right, foTinded upon wrongs. Appendix C, Sect. VI. . . 600—601 Section VII. To actions for recovery of land. Appendix C, Sect. VII. . . . 601 Section VIII. Counter-claims •••.... gOl Appendix E. Forma of Reply, &c. to le used pursuant to Ord, XIX, r. 5. Section I. General form ..... „„„ Section II. Example of a statement of claim, defence, and reply . . 602—603 Section in. Defence, including an objection in point of law , , o^o TABLE 01' CONTENTS. APPENDICES TO EULES OF SUPREME OOUni— continued. Appendix P. Forms of Judgment. PAGE 1. Default of appearance and defence in case of liquidated demand . 604 2. Interlocutory jud^ent in default of appearance or defence where demand unliquidated . . . . . . . 604 Judgment in default of appearance in action for recovery of land . 604 Judgment in default of appearance and defence after assessm.ent of damages . . . . . . , . . 604 Judgment after appearance and order under Ord. XIV., r. 1 . 605 Judgment at trial witliout a jury . . . . . . 605 Judgment after trial witli a jury ..... 605 Judgment after trial before referee . . . . . 605 9. Judgment after trial of questions of account by referee . . 606 10. Judgment upon motion for judgment . . . . . 606 Judgment after trial by Court witbout jury .... 606 Judgment in pursuance of order . . . . . . 606 Judgment on certificate of registrar of Ootmty Court . . 607 Judgment for defendant's costs on discontinuance . . . 607 Judgment for plaintifi's costs after confession of defence . . 607 16. Judgment for costs after acceptance of money paid into Court . . 607 17. Judgment wbere no judgment entered at trial by jury . . 608 18. Judgment on motion after trial of issue . . . . . 608 3. 4. o. 6. 7. 8. 11 12 13, 14 15, Appendix G. Paet I. Forms of Prasci/pe. 1. Fieri facias .... 2. Elegit ..... 3. Venditioni exponas 4. Fieri facias de bonis ecclesiasticis 5. Sequestrari. facias de bonis ecclesiasticis 6. Writ of sequestration . 7. Writ of possession . 8. Writ of delivery 10. Writ of attachment 11. Distringas against ex-sheriff . 12. Inquiry .... 13. Certiorari .... 14. Prohibition .... 15. Mandamus .... 16. Habeas corpus ad testificandum . 17. Commission to examine -witnesses 18. Commission of partition 19. Amended summons 20. Eenewed summons . 21. Subpoena .... 22. Entry of action for trial . 23. Entry of appeal 24. Entry for argument generally M. 608 609 609 609 609 609 610 610 610 610 610 611 611 611 611 612 612 612 612 612 613 613 613 TABLE OP CONTENTS. APPENDICES TO EULES OF SUPEEMB COVB.T— continued.' Appendix Gr.— continued. page 25. Entry of special case ..... . 613 26. Memorandum of service of notice of judgment . . . 613 27. Search ....... . 614 28. Memorandum on notice of judgment . . 614 Appendix H. Forma of Writs. 1. Pieri facias ...... . 614 2. Fieri facias on order for costs . . 615 3. Elegit ....... . 615 4. Venditioni exponas .... . . 616 5. Fieri facias de bonis ecclesiasticis . 616 6. Fieri facias to the archbishop de bonis ecclesiasticis during the vacancy of a bishop's see . . . . . 617 7. Sequestrari facias de bonis ecclesiasticis . 617 8. Possession ...... . . 617 10. Delivery ...... . 618 11. Delivery ...... . . 618 12. Attachment ...... . 618 13. Sequestration ..... . . 619 14. Distringas against ex-sheriff .... . 619 Appendix J. Forms of Subpoena, &c. 1. Subpoena ad testificandum (general form) . 620 2. Habeas corpus ad testificandum .... . . 620 3. Subpoena duces tecum (general form) . 620 4. Subpoena ad testificandum at assizes . . 620 5. Subpoena duces tecum at assizes . 621 6. Subpoena ad testificandum, at sittings of High Court . . 621 7. Subpoena duces tecum at sittings of High Court . 621 8. Writ of inquiry for assessment of damages . . 621 9. Certiorari to County Court .... . 622 10. Certiorari (general) . . . . . . . 622 11. Prohibition ...... . 622 12. Mandamus ...... . . 622 13. Commission to examine witnesses 623—624 Appendix K. 1. Summons (general form) . . . . . . . 625 2. Order (general form) ..... . 625 3. Summons for directions pursuant to Ord. XXX. . . 625 4. Order for directions pursuant to Ord. XXX. . 625 5. Order for time ...... . . 626 6. Order under Ord. XIV., No. 1 . 626 7. Order imder Ord. XI v., No. 2 . . . . . . 626 8. Order under Ord. XIV., No. 3 . 626 9. Order under Ord. XTV„ No. 4 . . . 627 10. Order to amend ...... . 627 11. Order for particulars (partnership) . . 627 TABLE OF CONTENTS. APPENDICES TO RULES OP SUPREME COVKE— continued. Appendix K — continued. 12. Order for particulars (general) ..... 14. Order to discharge or vary on application by tHrd parfy 15. Order to dismiss for want of prosecution .... 16. Order for delivery of interrogatories . . . . . 17. Order for affidavit as to documents . . . . . 18. Order to produce documents for inspection' 20. Order for service out of jurisdiction . . . . 21. Order for substituted service ... . . 22. Order for renewal of writ ...... 23. Order for issue of notice claiming contribution . . . . 24. Order of reference ....... 25. Order for examination of witnesses before arbitrator 26. Order for examination of witnesses and production of documents . 27. Order charging stock — nisi . . . 28. Order charging stock — absolute . . . . . . 29. Charging order. Solicitor's costs ..... 30. Order to remove judgment from County Court . . . . 31. Order for arrest (capias) under Debtors Act .... 32. Order of reference under sect. 56 of the Supreme Court of Judica- ture Act, 1873 . . . . . . . . 33. Order of reference under sect. 57 of the Supreme Court of Judica- ture Act, 1873 ....... 34. Order of reference to master . . . . . . 35. Order for examination of witnesses before trial 36. Short order for issue of commission to examine witnesses 37. Long order for issue of commission to examine witnesses 633- 37a. Order for issue of letter of request . S7b. Request to examine witnesses .... 38. Order for examination of judgment debtor . 39. Garnishee order (attaching debt) .... 40. Garnishee order (absolute) .... 41. Order on client's application to tax solicitor's bill of costs 42. Order on solicitor's application to tax bUl of costs 43. Order to tax after action brought 44. Order to try action in County Court . 45. Order to give security or try action in County Court 46. Order for examination touching means 47. Order for payment of judgment debt by instalments 48. Order for committal of judgment debtor 49. Order for committal of judgment debtor on non-payment of in- stalment ...... 50. Literpleader Order No. 1 . 51. Interpleader Order No. 2 . . . • 52. Interpleader Order No. 3 . 53. Interpleader Order No. 4 . . • ■ 54. Interpleader Order No. 5 . 55. Interpleader Order No. 6 . . • • 66. Interpleader Order No. 7 . 57. Order dismissing summons (generally) 58 Summons for entry of satisfaction on a registered bill of sale b2 ■ PAGE 627 628 628 628 628 628 629 629 629 629 630 630 630 631 631 631 631 632 632 632 633 633 633 -635 . 635 . 635 . 635 . 636 . 636 . 636 . 637 . 637 . 638 . 638 . 638 . 639 . 639 639 640 640 640 641 641 641 642 642 642 XX TABLE OF CONTENTS. APPENDICES TO EULBS OF SUPBEME COITRT— continued. Appendix L. Chancery Division. PAGE 1. Summons by chief clerk • . . . • ■ • ^^^ 2. Porm of advertisement for claimants not being creditors . . 643 3. Form of advertisement for creditors . . . . • 643 4. Notice to creditor to produce documents . . • • • 644 5. Affidavit of executor or administrator as to claims of creditors . 644 e. Exhibit referred to in Affidavit No. 5 . . . . . 644 7. Notice to creditor of allowance of claim . . . ■ 645 8. Notice to creditor to prove his claim . . . ■ ■ 646 9. Notice that cheques may be received . . . . • 646 10. Certificate of chief clerk . . . . . . . 646 11. Affidavit verifying accounts and answering usual inquiries as to real and personal estate . .... . . 647 — 648 12. Account of personal estate, being Account A. referred to in Form No. 11 . . . : 649 13. Account of rents and profits, being the Account B. referred to in No. 11 650 14. Receiver's account ..... 651 — 652 15. Ordinary conditions of sale ...... 653 16. Affidavit of result of sale . . . . . . . 654 17. List of debts allowed ....... 655 18. List of legacies remaining unpaid . . . . . 655 19. List of annuities and arrears due ..... 656 20. List of apportionments among creditors or legatees . . . 656 21. Receiver's recognizance ...... 656 22. Affidavit verifying^ receiver's report . . . . . 657 23. Affidavit verifying abstract ...... 658 24. Affidavit verifying engrossment of deeds . . . . . 658 25. Originating summons ....... 658 26. Request to set down cause for further consideration . . . 659 27. Notice that cause has been set down for further consideration . 659 28. Form of ordering accounts and inquiries . . . . . 659 Appendix M. Payment in and out of Court. Rules 1 to 18 . . . . . . . 660—661 Appendix N. Costs ........ 662-668 Appendix 0. Repeals . . . . . . . . .668 Obdee as to Fees and PEEOENTAaES to be taken by Stamps . 669—677 Oedee as to Stjpeeme OoiniT Fees, 1884 . . . 678—685 OeDEE as TO SUPEBME CoTTET FeES (OCTOBEtl), 1884 . . 686 GENERAL INDEX 687—723 TABLE OF CASES. A. PAOE A. I'. B 324 A. ScB., £e 189 Abadom ». Abadom 428 Abbot, Jie 65 Abbott, Se (18 Beav. 393) 13 (4L. T. 576) 4,10 Aberaman Iron "Works v. Wickens 336, 618 Aberystwith EaUway^ Se 50 Abrey v. Newman 346 Abud V. Eiohes 455 Accidental Co. v. Meroati 542 Ackers r. Ackers 540 Adair v. Toting 617, 518 Adam, JJe 196 Adams, Jie 80, 88 Adamson, Se 6 ■- r. Gill 494 Adcock V. Peters 308 Adderly v. Smith 642 Addies' Chaiity (Feofiees o:^, i:x parte 45 AdMns V. Bliss 445, 450 Agar-Ellis, Se 98 Agnew V. tJsher 320 Agricvdtnrist Cattle Insurance Co., Se 485, 493 Albert (Prince) v. Strange 341 Albezette, Se 650 Albion Steel Co., Se 280 Alcock, £x parte 9 Se 12 ». Gill 387, 505 Alderson v. Elgey 114, 130 Aldred, Se 29 Aldridge v. Westbrook 548 Alexander v. Nurse 435 Allaway v. Oakley 166 Allen, Se (W. N. (1867) 11) .... 31 (Kay, App. 51) 57, 58 (40 L. T. 456 ; 27 W. R. 529) 63, 462 Davies r. Chat wood 7 V. Aldridge 8 V. Allen 180 V. Jarris 8, 11, 12 V. Eennett , 354 ». M'Pherson 341 V. Norria 343 ». Taylor 436 AUhusen v. Labouchere 385 AlliiTn V. Dickinson 401, 610 Alsager (Incumbent of), Hx parte 46 Alsop t: Oxford (Lord) 558 Alston, Se 37 PAOI! Ambroise v. Evelyn 413 Amos ». Chadwick 417, 465 Andenshaw School, Se 43 Anderson v. Bank of British Co- lumbia. .260, 382, 383, 388 V. Stather(9 Jur. 1085).. 436 ■ V. (10 Jur. 383).. 327 Auderton v. Yates 440 Andrew v. Aitken 362, 356 V. Eaebum 412 Andrews, Mx parte 13 — - — —Se 6, 8 V. Bohannon 380 V. Salt 98, 372 V. Walton 188 Angell V. Haddon 503 Angelo, Se 64, 77 Anglo-Egyptian Navigation Co., Se : 548 Anglo-Italian Bank ». Davies . . 177, 178, 331, 452, 468 Angove, Se 12 Anon. (2 H. &M. 124) S72 (8"W. E. 333) 103 W. N. (1876) 219) 481 (W. N. (1876 23) 615 • (W. N. (1876) 12) 276 CW. N. (1876) 39 388 (9 Hare, App. 27) 326 (18 Jur. 770) 326 (1 Jur. N. S. 974) 52 (3 Jur. N. S. 839) 231 (3 Ves. 516) 469 V. Christopher 436, 437 V. JoUand 469 Anstey v. North Woolwich Co. . . 386 Appleton «. Chapel Town Paper Co 333, 336 Apthorpe, Se 66 Archer v. Hudson 518 Arden, JSi- parte 516 (Lord), Se 39, 43 Armitage v. Askham 45 V. Coates 402 ». FitzwUliam 317 Armour v. Walker 423 Armston, Se 54, 66 Armstrong, lEx parte 74 V. Armstrong 400 Arnold ». Dixon 182 Arrowsmith, £x parte 4 ■ Se 66, 68 Artistic Colour Co., Se 257 Ashby V. Taylor 386 Ashford v. L. C. & D. Bly. Co 47 Ashley v. Ashley 499 TABLE OP CASES. PAOB Ashley v. Taylor 337 Ashmall v. Wood 346, 347 Aslitoii V. Shorrook 478 Ashworth©. Outram 266, 510, 649 Asiatic Banking Co. v. Anderson... 317 Askew V. Peddle 380 V. Woodhead 34, 43, 44 Aslatt V. Southampton (Corpora- tion of ) 468 AspinaU v. Bro-wn 506 Asser v. Goetze 421 Associated Home Co. v. Whioh- cord 348 Association of Land Pinamoiers, Se 280 Aste V. Stnmore 393 Aston's Case 426 Aston, JJ« 80, 81 V. Hurwitz 309 V. Meredith 182 Atherton v. British Nation Assui- ance Society 518 Atkins, Se 352 Atkinson, He 6, 7 and Pilgrim, Be 563 V. Mackreth 334 A-ttomey-General v. AJford 55, 56 «. Arkcoll .... 411 B. Bermdndsey (Vestry of) 334 V. Birmingham (Corporation of 337, 378 V. Carrington (Lord). .551, 558 V. Castleford LocalBoard 387 'V. Chambers . . 494 v.ColneyHatch Asylum . . 494 V. Cooper 51, 79 V. Drapers' Co. (9Eq. 69).. 557, 558 V. East Retford 306 542 188 of), 385 • V. Emerson 384, 387 ■V. aaskiU..S82, 385 ■ V. Gee 469 - V. Hackney Lo oal Board . ■ ». Knight .... - V. Leathersel lers' Co. . - V. Lewis 438 - V. Marsh 378 - 1!. MerthyxTydfil LocalBoard of Health.. 494 - V. Murdoch . . 88 - V. Murray.. 305, 339 - V. PaghamHar- bour Co. . . 422 - V. Rochester (Mayor of) 43, 542 - V. Shrewsbury Bridge Co. 305 - V. Skinners' Co. 642 PASE Attorney-General v. Swansea Im- provements Co 517 V. Tomline .... 265 . V. Vigor 469 V. Ward 79 11. Whitwood Local Boaxd 391 V. Wiltshire 305, 339 «. Wyvilie 548 Attorneys Act, 1870, He 20, 22 Attwood V. Small 334 Atty V. Etough 402 Atwood V. CMohester 329, 377 V. MUler 365 Aubrey, Se 33 Audley^HaU Co., -Be 17 Austen v. Bird 337 Austin V. Amhurst 29 V. Austin 98 Australian Co., Se 52 Avory v. Andrews , 468 Ayles V. Cox 76, 83, 88 Baohe, Se 79 Back, Ex parte 31 «j. Hay 411 Bacon v. Bacon 383 ». Turner 306 Badcock, Se 78, 82 Baddeley v. Harding 541 Bagot, Ee (10 W. R. 607) .... 28, 44 (14 W. R. 471) 40 V. Easton 334, 363 Bagshawe, Se 7 Baile v. Baile 16, 18 Bailey, Se (34 Beav. 392) 4, 14 (3 W. B. 31) 56 (.W. N. (1869) 43) .... 177 V. Birchall 18 V. Gundry 541 BaiUie, Se 51, 60, 514, 516 ■». Jackson 435 Bainbrigge v. Blair 472 Baines v. Wormsley 553 Baker, Se (32 Beav. 626) 10 (IIW. R. 1127) 427 v. Baker. 188 V. Holmes ,! 327 V. Cakes 265 V. Wisbeach (Corporation of) 306 Ball V. Kemp- Welch 183 Ballard v. Catling i 341 V. Tomlinsou 607 Baltic Co. H). Simpson 494 Bamford v. Watts 478 Band v. Randle 346 Banda and Kirwee Booty, JSe, Kinlooh v. Reg 201 Banister, Se 476 Banks ». Banks 469 V. Cartwright 398 Banner v. Berridge 258 TABLE OP OASES. PA6B Bauque IVanco - Egyptisrme v. Lutsoher 423 Barber, He (14 M. & W. 720) , . . . 10 (1 Sm. &G. 118) .... 59 (18 Oh. D. 624) 34 (2N. R. 571) 55 V. Blaiberg 355 r. Mackr^ 397 BardweU v. Sheffield Waterworks Co 404 Bareham, Se 44 Barfield and Rush, He 189, 465 Barham v, liongman 430 Barker, iS« (1 Oh. D. 43) 80 (17Ch. D. 241) ,...182 (W. N. (1884) 237) . . 52 V. Heniming 553 V. Peile 56 i;. Hele 317 Bamaby v. Tassell 402 Barnard, Ex parte 57, 58 ■ Re 7, 8 V. Weiland 396 Bamed's Banking Co. 'i 386 Barnes, iSe (Seton, 542) 80 (5 1,. T. 587) ...... 433 V. Addy 334 Barrett, Ex parte 9, 32 Me 491 V. Buck 397 V. Hammond 189 Barrington, Me 103 Barrow, Me 10, 13 Barrs-Haden, Me 152 Barrs e. Fewkes ■. 517 Barry Rail. Oo., Re 50 Barter v. Dubenx 351 Bartholomew, Re 56 Bartholomew's Hospital (Gro- Temors of), -B^iJarie. . 39 V. Freeman . . 467 Bartlett, Re 475 V. Bartlett 86 V. Wood 540 BarUey v. Bartley 391 Bartaa, Ex parte 13 V. Barton 185 Bartmm, Re 7, 9 BarweU v. Brooks 14 Basnett v. Moxon 78 Batemau ». Cook 435 Bateman's Estate, Me 32 Bates V. BnreheU 350 V. Christ's CoUege, Cam- bridge (Master of) 383 V. Eley 399 Bath River Co. v. Willis 35 Batley v. Kynook 548, 555 Battel (Dean of). Ex parte 34 Battell, Me 56, 59 Batten v. Wedgwood Coal Co ... . 553 Battersby, Me (10 Ch. D. 228) . . 69 (16 Jiir. 900) 81 Batthyany v. Walford 371 Batty, Re 30 Baugham, Ex parte 59 Baxter, Re 74 Bayley, Re 13, 14 V. Cass 388, 440 FAOIi Bayley v. Miles , 404 Baylies v. Baylies 469 Bayly v. Bayly 341 V. Went 115 Baynton v. OoUins 193 Beale v. Ruston 342 BeaU V. Smith 339 Beardsall v. Cheetham 9 Beattie v. Ebury (Lord) 548 Beaty v. Ourson 55 Beauolerk, Re 54, 59 Beaufort (Duke of) v. Lord Ash- burnham 548, 549 V. Crawshay 427 Beaufoy, Me 34 Beavau v. Carpenter 430 Beck, Me 150 Beoke, Me 7, 10 Beckett v. Attwood 510 V. Buckley 177 V. Sutton 90, 182 BeoHngham v. Owen 331 Beokitt V. Bilbrough 271 Bedborough v. Army Co 268 Beddall v. Maitland . , 366, 370 Beddgelert Ry., Re 168 Beddoes, Ex parte 40 Beddow v. Beddow 468 Bedson, Me 8 Beetlestone, Me 550 BefBord, Me 59 Begg V. Cooper 330 Belaney v. Ffrenoh 17, 388 Belcher v. Whitemore 397 Belfast Water Commissioners, Me 29 Bell V. Cade 372, 404, 405 V. Dadelszen 349 V. Kilmorey (Earl of) 305 ©.Turner 435,474 V. Vincent 316 Bellamy, 2Je 123 V. Brickenden 399 BeUohamber v. Giani 479 Bellew 1!. BeUew 499 Belton, Ex parte 9 Benand, Me 56 Benbow v. Low 359, 385, 392 Bendyshe, Me 55, 59, 427 Bennett, Expa/rte 52 JS« (8 Beav. 467) 13 (18Jur.33) 476 V. Baxter 400 ». Hill 7 V. Lytton 101 V. Moore 396 Bentley v. Craven , 470 Berdanji. Birmingham Small Arms Co. 516 V. Greenwood 423 Berkeley «. Standard Discount Co 385, 386 Berkeley's WUl (Earl of), iSe . . . . 33 Berkley, Re 81 Benie v. Howitt 16, 18 Berry, Me 67 V. Exchange Trading Co. . 478 v. Gibbons 476 Besant, Re 98, 99 V. Wood 98, 99, 257, 355 TABLE OP CASES. FAQB Besemeres v. Besemeres 428 Bessant v. Noble 346 Bethell v. Abraham 491 V. CasBon 388, 389, 390 Bethlem Hospital, Ee 40 Betts V. Cleaver 388, 549 V. Clifford 478 V. De Vitre 566 V. Doughty 378 V. Menzies 383 V. Thompson 336 Betty v. L. C. and D. Ry 47 Bevan, Me ... ^ 7 and Whitting, Ee 9 Bewioke v. Grrajiam 388 Bianca, The 350 Bicester (Churchwardens of), Hx pa/rte 31 Bicknell v. Bicknell 337 Bidder v. Bridges 423, 434 Biddle, Ee 88 Biddulph, Ee 54 V. Lord Camoys 326 ■ V. DayreU 326 Bierton, Ee 79 Biggs, Ee 53 • V. Peacock 180, 181 Bignold, Ee 6, 10, 12, 79, 80, 83 Bigsby V. Dickinson. . . .353, 511, 515, 549 Billing V. Coppock 5, 8 Bingham v. Hallam 6 Bingley v. Marshall 428 Binns v. Hey . , 7, 14 Birch, Be 56, 59 V. Birch 454 v. Williams 418,541 Birchall v. Pugin 18, 457 Bird, Ee 68 «. Bird 341 - — ». Heath 17, 380 Birkett, Be 62, 66 Birkenhead Docks (Trustees of) v. Laird 372 Birminghaqi and Lichfield By., Ee 169 Estates Co. ». Smith, 356, 363 (Mayor of) v. AUeu 421 School, Be 369 Waste Co. i). Lane. 406 ■ Wolverhampton and Dudley Ey. 48 "Bj^ap, Mx parte 612 — • V. Bishop 369 Bishop's Waltham Ely. Co., Ee . 178 Bissicks ». Bath CoUiery Co 449 Blackburn Union v. Brooks .... 422 Blackford v. Davis 398, 399 Blackie v. Osmaston 357 Blaokmore, Be n, 12 V. Howett' 327 Blagrave v. Kouth 8, 14 Blain, Ex parte 338, 448 Blair, Bx parte 7 V. Massey 391 Blake v. Albion Assurance Society '360 V. Blake 666 Blakeney v. Dufaur 541 FAOI! Blakesly, Be 8 Blaksley, Be 461 Blanchard, Be 79, 80, 83, 84 Bland V. Lamb 341 Blandy ». De Burgh 4 Blaxland v. Blaxland 476 'Blease, Ex parte 512 Blenkinsopp v. Blenkiusopp .... 322 BHgh, JJe 339 V. Tredgett 338 felinston v. Warburton 402 Bliss V. Putman 346 Blomefield, Be 29 Bloomar, Be 68, 78 Blount, Be 308 Bloxam v. Whipham 506 Bloye,iJe 55, 57 Blunt, ii!« 58,59,461 V. Clitherow 469 V. Heslop 4, 13 Blyth, iJe 40, 550 and Toung, Ee . . 108, 510, 612, 514, 516 V. Green 327 Boden, Ee 71 Boddington ». Woodley 341 Boddy V. WaU 379 Boehm v. Wood 469 Bogg V. Midland Ely 37, 372 Bolckow V. Fisher 382, 385 Bolivia (Eepublic of) v. National Bolivian Navigation Co. ..401,444 Bolton, Ky., Ex parte 49 Ee 69 i>. Bolton 449 V. Corporation 6f Liverpool 383 ».LondonSohoolBoardl06,468 V. Stannard 335 Bond V. Barnes 464 ». Freke 113 Bonelli, Ee 60, 321 Bonfield v. Grant 326 Bonnardet v. Taylor , 391 Bonnewell D. Jenkins 418 Bonser v. Bradshaw 16 Booth V. Booth 549 V. Briscoe 333 V. Smith 99 V. Trail 456 Bordier v. BuireU 411 Bomelnan v. Wilson 351 Borough V. James 349 Borthwiok v. Eansford, 332, 491 Boswell V. Coaks 475 Bothomley v. Sqxdre 537 Bouch ff. Sevenoaks Ely 456 Boughton, Be, Boughtouu. Bough- ton 17 Boulton, Be 102, 277 Bourke, Be 73, 83 Bourne v. Buokton 518 V. Coulter 379 Bouverie, Ex parte 41 BovUl V. Cowan 388, 389 Bowden v. Eussell 188 Bowen, Ee 271, 309, 332, 406 V. Pearson 389 V. Price 382 Bower, Be g TABLE QI" CASES. PAOB Bo-wer v. Cooper 379, 656 Bowes Se 42, 227 V. Bute (Marquis of) .... 183 V. Femie 387 Bo-wmer, Me 80 Bowra v. Wright 78 Bowyer v. MaisliaU 347 Box, Se 103 Boyce, Me (12 W. E. 359 ; 4 De a. J. & S. 205) . . . . 65, 66, 80 . (15W. E. 827) 369 Boycott, Me ^ 80 Boyd, Me 463 11. Allen 180,181 V. Petrie 391 Boyle, Me 13 Boynton v. Boyuton 351 Boyse, Me, Crofton v. Crofton .... 423 V. Colclougli 440 Bozon V. Bolland 17 Brace v. Taylor 271 Bracey, Me 6, 10 BrackeDbmy, Me 80, 81, 88 Bradberry v. Brooke , .' 341 Bradford, Me 266 ». Toung . . . .252, 264, 517 Bradley v. Muntou 88 Bradshaw, ^x parte (16.Sim. 174) 39 (2 De a. M. & G. 900) 64, 73 Me 74 V. JFane 41 Brady, Me 12, 13 Braginton v. Tates 268 BraUey, Me 42 Braithwaite, Me 40 V. Kearos 428 Bramble, Exparte, Me Toleman and England 17 Brampton Ky. Co., Me 50 Brancker, Me 78 Brandon, Me 41, 339 V. Brandon (1 Dr. & Sm. 16) .... 472 (2Dr.&Sm. 305; 9Jur. N.S.ll).. 34, 37,41 (llJnr.N.S. 30) 41 Bran£am, Me 485 Branford v. Branford 383 Branmer, Me 43 Branson, Ex parte 6 BranwMte, Exparte 280 Brasnett's Case, Me 492 Brass, Me 73 Brassington v. Cussons 396 Braund v. Earl of Devon 61 Braye (Baroness), Exparte .... 30, 42 Me 43 Bredioot (Vicar of). Ex parte 32 Breeze v. English 397 Brent, Me 58 Brentnall, Me 81 Brewer, Ex parte 28 Me 26 V. Torke 517 'Brewster v. Thorpe 327 FAOE Brioe v. Bannister 259 Bridges, Me 280 Bridgewater v. De Wintou 384 Bridgman, Me 79 Bridson». Smith 396 Brier, Me 103, 397, 415, 506 Bright V. TyndaU 372, 405 Brigstooke v. Eooh 430 Briscoe, Me 41 Bristed v. Wilkins 459 Bristol Eree Grammar School, Me.. 30 (Mayor of) v. Cox 382 and North Somerset Ry. Co., Me 171, 173 Bristow 1). Booth 61, 76 V. Whitmore 372 Bristowe ». Needham 469 British Farmers' Co., Me 511 Imperial Corporation, Me. . 321, 322 Dynamite Co. v. Krebs . . 380 Waggon Co. v. Lea 259 Brittlebank v. Smith 435 Broadhurst v. WUley 367 Broadwood, Me (1 Ch. D. 438) 30 (8L. T. 632) .... 61 Brooas v. Lloyd 424 Brooklesby, Me 54 Broder v. Saillard 268 Broke (Lprd), Exparte 39 Bromley, Me 7 V. Williams 335 Brompton Waterworks, Ex pa/rte .. 50 Brook, Me 17, 107 Brooke v. Bockett 4 V. Brooke 435 V. Todd 353 V. Wigg 411 Brookfield v. Bradley 380 Brooking, Me ; 43 Brown, Me (4 Eq. 464) 11, 558 (29 Beav. 401) 404 (Ethel) 98,260 Ward V. Morse 540 andSibly 108 V. Dawson ....1.., 342 V. De Tastet 399 V. Eenwick , 38 V. Gellatly 548 V. Lee 386 V. Oakshot 475 ». Pearson . . . . , 396 V. Eye 271 V. Sewell 390, 651 V. Tibbits 4 V. Trotmaa 17, 265 , Weatherhead 338 Brown's Will, Me 143, 149 Browne, Me 13, 14 Browning v. Sabia 455 Bruce v. WiUis 35 Bruiton v. Birch 345 Brunt, Me go Bryan, Me 455 Bryant, Me 61 V. Bull 464 Bryson v. Warwick and Birming- ham Canal Co 426 Buck, Ex parte 45 TABLE OP CASES. PAGE Buck V. Eobson 269 Buckia^ham, £e 28 «. SdHck 183 Buokmghamshire Rly., Se 29 Buckley, Se (17 Beav. 110; 17 iTir.478) S2 , (Johns. 700) 67 V. Cooke -iZS Bucks Kly., Se 41 Buokton V. Higgs 367 Budding v. Murdoch 377 Budge t>. Budge 374 Buenos Ayres Gas Co. ». Wilde . . 188 Bugden v. South 383 Buist V. Bridge 455 Bulkeley v. Earl of Eglinton . . 80, 88 V. Hope 405 Bulley V. BiiUey 18 Bullock V. Corry 383 Bunn, Hx parte 493 V. Biinn 383 Burbridge v. Robinson 388 BurcheU v. Giles 379, 553, 556 Burdick ». Garriok 618 Burgess, Jte 81, 338 Burgoine J!. Moordaffi 411 V. Taylor 377, 418 Burke, He 57 V. Hutchinson 642 V. Eooney 374 Burkinshaw v. WUson 566 Burlinson v. Hall 259 BumeU, iJe 42 V. Bumell 183, 396 Bums V. Irving 460 V. WaUord 309, 330 Burr V. Hubbard 393 Burrard v. Calisher 421 BurreU v. Maxwell 87 Burroughs, JJ« 108 Burry Port Co. v. Bowser 341 Buisill V. Tanner 193, 200, 330 Burstall v. Beyfus .... 334, 363, 371 V. Bryant 509 V. Eearon 362 Burt, lie 77, 89 V. Sturt 405 Burton v. Roberts 466 Bush, Se 4, 5 V. Martin 7 Bustros V. Bustros 322, 327 V. White 382, 388, 610 Butcher ». Pooler 266 Bute (Marquis oi), Se 69 Butler's WiU, Se 30 Butler, He 267 ■ V. Butler 336, 350 V. Gardener 341, 478 Butlin V. Arnold 400 Butterfield, Se 39, 43, 44 V. Mott 491 Byam v. Byam 372 «. Sutton 346 Bye V. Ejrby 330, 544 Byng.i). Clark 386 Byrch, Se 6, 9 Byrd v. Nmm 359, 378 Byrne, Jie 79 Byrom, He 41, 42, 43 Byron, Ite (1 De G. J. & S. 358) . . 39 Byron i2« 23 Ch. D. 171) . . . . 28, 148 — — 31W. R. 617) 144 (W. N. (1883), 67) ... . 30 Byron's Settled Estates, Se .... 39 C. Cabbum, Se, Gage v. Rutlajid . . 540 Cadman r. Cadman 402 Caillard v. CaiUaxd 469 Caister v. Chapman 349 Caldwell v. Pagham Harbour Co. 305, 378 Cable Valley Co., .E« 179 Calton, Se 31, 486 Calvert v. Davidson 544 V. Godfrey 497 Cambrian Rly., Se .... 170, 171, 176 Cambridge (Corporation of), JSx parte 28 Cameron, Se 56 Cameron's Coalbrook Co., -Se. 383, 388 CamiUe ». Donati 549 Campana v. Webb 438 Campbell, Se (3 De G. M. & G. 685) 4,15 (19 W. R. 427) .... 16 (31 Beav. 176; 8 Jur. N.,S. 1199) 81 V. Andrews 541 ». Dalhousie (Lord) .... 430 V. Holyland . . 361, 478, 552 V. Poulett (Lord) 393 Camps V. Marshall 327 Canaan Oilworks v. Hay 638 Candy v. Maughan 608 Cane v. Martin 9, 17 Cann, Se 28 Cannon v. Johnson 183 Cannot v. Morgan 464 Ca.nt, JEx parte 88 Se 43, 44 Canterbury (Archbishop of), Ex parte 31 Capes i". Brewer 317 Capital Eire Insurance Co., Se .. 17 Capper, Re 407 Cardell v. Hawke 601 Garden, JEx parte 84 CardinaU v. Cardinall 263 Gardross, Se 103 Carew, Se 10 CargiU v. Bower 362, 378 Carmarthen Rly., Hx parte 48 Carney, Se 41 Carpenter, Se 77, 89. 1). Churchill (Lord) 89 Carpmael v. Proffitt 40, 44 Carr v. Morioe 438 Carta Para Mining Co., Se 542 Carter v. Carter 15 — «. Sebright 88 «. Stubbs 374, 538 Cartwright, Se 7 Carven, Se 7, 8 Carver ». Pinto Leite 392 Case V. Midland Rly. Co 494 TABLE OF OASES. PAQE Casey v. Amott 320 Cash ». Parker 351 Cashin v. Craddook 387 V. Cradook 360 Cass V. Fitzgerald 389, Cassiopeia, The 316, 378 Cast «. Poyser 4,27, 500 Cater, Se 55 Oatholio Publishing Co. v. Wy- man 427 Catlia, Se (18 Beav. 512) .... 8, 484, 549, 558 (23 Beav. 412) 13 Catlo-w V. Oatlow 16, 18 Gator V. Croydon Canal Co 33 Cattlin, Se 6 Catton V. Bennett 348, 350 Cavander, ijs , 512 Cave, Ex parte 45 V. Cave 464 Cawdross (Lord), JSx parte 4 Cawley and "Whatley, Be 12 Cawthome, JJe 54, 55 Cazneau, Me 58 Cecil V. Langdon 118 Central African Co. v. Grove .... 356 Central News Co. v. Eastern Tele- gfraph Co 424 Cercle Co. v. Lavery 267 Chaffers v. Baker 327 ■ V. Headlam 346,, 347 Chalmers v. Laurie 344 Chamberlain, £x parte 30, 37 He 58, 227 V. Chamberlain .... 476 Chambers, Se 8 — = V. Kingham 258 V. White 28 Champ v. Stokes 4, 5 Champemowne v. Brooke ,..,.. 380 Champion v. Formby 371 Champneys v. Burland .".177, 178 Chaplin, Me 56 Chapman, Se 551 v. Mason 465 V. Keal Property Trust 267, 464 Chappell V. Davidson 468 Chard ». Jervis 512 Charlton v. Allen 513 17. Charlton 18, 557 v. Coombes 383 V. West 326 Charras «. Pickering 642 Chatfield v. Sedgwick 271 Chatterton v. Watney 456 Ohauncey, Me 65, 67 Chauntler v. Eobinson 36 Chaytor, Me 141, 144, 543 Cheltenham Wagon Co., Me 188 OhenneU, Me .... 266, 415, 511, 512, ■ 640 Cherry's Estate, Me 39 Oheshunt College, Me 29, 51 Chesterfield v. Black 378, 386 Chichester v. Donegal! 384 Child, :Ex parte 441 V. Douglas 378 ji. Stenning 334, 353 Chilton v. Carrington 463 ». London (Oorporatiou of) 396 China (Imperial Bank of) v. Bank of Hindustan 542 China Steamship Co. v. Marine Insurance Co 463, 465 Cholmondeley v. Clinton 17 Chorlton V. DioMe 358, 417 Christ (CoU. of) v. Martin 261 Christ's Hospital, JEx parte Go- vernors of (20 Eq. 605) 41 Christ's Hospital, JSx parte Go- vernors of (27 W. E. 458) .... 39' Christ's Hospital, JSx parte Go- vernors of (2 H. & M. 166) .... 39 Christ's Hospital (Governors of), Me 40 Christchnrch (Dean of), Hx parte (23 L. J., Ch. 149) 34 Clmstohurch (Dean of), Hx parte (W.N. (1872) 201) 39 Christohuroh (Dean of) v. East and West Junction Ely 172 Christ Church, J2x parte 39 Christie v. Cameron 318, 327 V. Christie 360 V. Ovington 107 Christy, Hx parte 9 Chubb V. Carter 470 V. Pettipher 182 Chuck V. Cremer 566 Church V. Perry 386 Churchill v. Bank of England . . 459 Ohurton v. Frewen (15 W. R. 559 ; W.N. (1867) 101).. 548 V. Frewin (2 Dr. & Sm. 390) 383, 391 Clack V. Wood -611 Clagett, Me 258, 516 Clapham v. Andrews 115 Clarbrough v. ToothiU 252 Claik, Jix parte 179 Me 9 V. Callow 359 — 1). Clark 641 V. CuHen 448 V. Fergusson 641 V. GiU 424, 426 V. Malpas 549 V. School Board for Lou- don 47 V. Ward 77, 84 V. Waters 327 1). Woodward 231 Clarke, Me 43, 98, 212 «. Bradlaugh 311, 313 V. Clarke 378 V. Cookson 411, 412 V. Jacques 478 ■ V. Law 427 V. Lord Elvers 274 ». Eoohe 516 V. Skipper 411 Olarkson v. Parker 5 Claxton, Exports 338 Clay, Me 82, 100, 638 and Tetley, Me 516 Claydon v. Finch 454 Claypole (Eeotor of), Ex parte ,. 29 TABLE OF CASES. PAGE Clayton v. Clarke 338 Clegg ID. Edmondson 382, 383 V. Rowland 102, 343, 499 Clement v. Griffith 439 Clements, Se 188, 266 V. Beresford 472 ». Norris 411 ClenneU v. Clennell 443 Clergy Corporation, £e 105 Cleyeland's (Duke of) Harte Es- tates, Se 42, 462 Cliffe V. WiUdnson 542 CUfford V. Budds 330 V. Turrill 17 Clinch V. Financial Corporation. . 389 Chnton, Be 32 Jackson v. Slaney . . 85 ■ — V. Clinton 454 aissold, iile 81 CHtheroe's Trusts, Se 29 Clough, Se 220, 380 CloTer ». Adams 17, 18, 265 V. Wilts Building Society 3S2 Clowes V. HilUard '. 333 Clntton, Hx parte 81 Cobbett V. Lewin 328 Cobbold V. Pryke 257 Cobham v. Dalton 188 Cockayne v. Harrison 18 Cockbiirn v. Edwards 540 . v.Teel 369 V. Raphael - 472 Cookerell it. Cholmeley 99 Cockle V. Joyce 417 Cookshott V. London Cab Co 417 Cocq V. Hunasgeria Coffee Co. . . 464 Coddington v. Jackson-ville Ry. . . 467 Codrington, Se 31 Coe, Se 66 Co&elA., JBx parte 31 Cohen v. Hale 456 V. Walej 369 Cole, Hx parte 188 Se 9 Coleboumev. Coleboume, 306, 468,469 Colebroke v. Jones 541 Colegrave v. Manley 17 Coleman v. MeUersh 398 V. West Hartlepool Co . . 188, 391 Coles V. Benbow 73, 91 ■ V. Civil Service Association. . 348, 350 CoUander v. Hawkins 371 Collard v. Roe 64 Collette V. Goode 358, 378 CoUiugwood, Se 76, 78 Collins' Charity, Se 31, 32 Collins, Ilx parte 44 ■ V. Paddington Vestry 515, 516 CoUinson, Se 77 V. Ballard 397 V. CoUinson 85, 89 ColUs's Estate, Se 33 Collyer v. Isaacs 660 Cohnan v. SaieU 380 Colquhoun, Se 6,9, 548, 558 Colson, Se 59 Colyer, Se 81 PAOE Colyer v. Colyer (9 W. R. 452) . . 388 (10W.R.748)..503, 618 (11W.R.355).. 344 ». Finch 518 Commerell v. Poynton 17 Commissioners of Sewers v. Gel- latly..272, 336 V. Glasse . . 383 Compagnie Finanoifere v. Peruvian Guano Co 387 Compagnie du Pacifique v. Guano Co 393 Compton V. Preston 353 Conaoher v. Conacher 480 Congreve, Se 558 Conn ». Garland 464 Conolan v. Leyland 193 -Constantine, The 516 Contract Corporation, Se, Goooh's Case.. 38S B. Tottenham Ry 168 Conybeare, Se 81 V. Lewis 373 Oonyer's School, Se 79 Cook, Se 369 V. Broomhead 541 V. Collingridge 399 «. Dey 316, 317 V. Enchmarch •. , 354 - — - V. GiUard 5 V. Heynes 396 V. Rosslyn (Earl of) 13 Cooke V. Turner 559 V. Wilby 435 Cooke's Contract, Se 108 Cookes V. Cookes 398 Cookson V. Bingham 402 Coombes v. Brookes 80 Cooper, Hx parte 44, 612 and AUen, Se 108 — ■ «i. Cooper , 518 V. Ince Hall Co 467 V. Jones 76 V. L. C. & D. Ry. Co ... . 38 — , V. Macdonald 80 V. Moore 435 V. Pitcher 653 V. Vesey 335, 612 V. Whittdngham 640 Coore, Se 52, 486 Coorg(Rajali of) «. East India Co. 382 Cope V. Russell 316 Copley, JEx parte 41 V. Jackson 362, 644 Copp, Se 274 Coppard v. AUen 334 Corbett v. Corbett 342 V. Lewin 463 Corcoran ». Witt 478 Cork (Earl of) v. Russell 177 Cormaok v. Beisley 17 Corpus Christi CoUege, Ex parte 39 CorseUis, Se 338, 387, 400 Corser v. Jones 463 Costa Rica (Republic of) v. Er- langer..385, 641, 542 V. Strousberg . , 387, 452 TABLE OF CASES. PAOE Cotter V. Metropolitan Ely 47 Cotterell v. Strattou 266, 640 Cotterill, i{« 81 Coiilson, Ite (17 L. T. 27) '. 32 (4 Jut. N. S. 6) . . 63, 54 Course v. Humphrey 648 Courtney v. Stock 641 Courtois, Se 68 Courts of Justice Commissioners, Se 44 Coventry (Justices of), Se 59 Coveny v. Athill 430 Covington, Se 55 Cowan, Jie 456 Coward, JJe 108 Cowbridge Railway, Be 177 Cowdell, iJe 10 V. Neale 4 Cowley (Earl) v. "WeUesley 402 Cox V. Barker 334 «. Cox 52 V. Eoley 271 V. Stephens 345, 346 V. Taylor .' 346 Coyle V. Gumming 360 Crabtree, He 88 Cracknall v. Janson 437, 511, 512, 563 Cradock v. Owen 606 . Cragg V. Taylor 459 Craig V. Phillips 516 Cramer, £x parte 346 V. Cramer 91 Crane, Se 42 — . V. JulUon 317 V. Kilpin 504 v. Loftns 351 Crause v. Cooper 64 Craven, Ex parte 29 Crawcour v. Salter 610 Crawford v. Chorley 396 V. Hornsea Brick Co. . . 649 Steam Co. .. 614 Crayoraft, Jle 449 Credits Gerundeuse v. Van Weede 508 Creech, St. Michael (Vicar of), Hx parte 42 Cremetti v. Crom 451 Cresswell, Be 52 V. Byron 17 V. Parker 320 Crichton, Be 59 Crick ». Hewlett 413,414 Cripps V. Wood 116 Crispin v. Cumano 454 Croft V. CoUingwood 396 Orofton V. Crofton, Be Boyse 423 Crofts V. Middleton 423 Croggam v. Allen 640 Croker, Be 29 Orompton v. Huber 505 Crookes v. Whitworth 186 Cropper v. Smith 617 Croslknd v. Koutledge 367 Cross, Re 510 V. Maltbjr 606 Crossley v. Stewart 386, 392 Crouch V. Waller 341 Crowder r. Shee 5 Crowe, Be (13 Bq. 26) . . 64, 74, 78, 91 (14 Ch. D. 304) 75 (14 Ch. D. 610) ..66, 70, 81 V. Bamicot 363, 378 Crowle ». Eussell 257 CrumUn Co., iJe 280 Crump V. Baker 399 V. Cavendish 331 Culbertson v. Wood 103 CuH, Be 54 Cuming, Be 77, 78 Camming, Be 19 Cummins v. Fletcher 115 V. Herron 615 Cunard, Be 81 Curd V. Curd , 397 Curlewis v. Whidbome 463 Curling v. Austin 397 Currie, Be 12, 13, 67, 73, 81 Curtis V. ShefBeld 352, 372, 616 Curtius V. Caledonian Insurance Co 346 Curwen, Be 30 Oust, Be 77 Cuthbert v. Wharmby 600 Cutler, Be 57 D. D' Adiemar (Viscountess) v. Ber- trand 80, 85 Daiutree v. Haynes 342 Dakins v. Grarratt 546 Dalby, Be 6 Dale V. Hamilton 476 Dalgleish, Be 66, 70, 82 Dallas V. Glyn 455 Dallow -v. Garrold 18 DaUy V. Worhan , 386 Dalton, Be (1 De G. M. & G. 265 ; 16 Jut. 253) 57 (6 De G. M. & G. 201 ; 2 Jur. N. S. 1077) 96 Danford v. McAnulty 365 Danger v. Nelson 408 Damn v. Simmins 514 Darby v. Darby. 404 Darcy ». Whittaker 351 Dartmouth Railway, Be 60 Darwin v. Darwin 369 Dashwood, Ex parte , 39 Daubney v. Leake 499 V. Shuttleworth 566 Daubuz ». Lavington 309, 330 Davenant's Charity, Be , 31 Davenport 41. King 180 V. Stafford 380, 631 Davenport's Charity, Be 86 Davey, Re 413 V. Durrant 424 V. MiUer 66 David, Be 6 V. Prowd 499 V. Howe 271 Davidson, Re 05 Davie, Be 13 TABLE OF CASES. FAQE Davies, M parte (16 Jur. 882) . . 88, 544 JJe (3 M. & a. 278) 89 <9 "W. E. 134) 103 «). Ballenden 377 V. Boulcott 346, 347 v. Chatwood, Me AHen . .7, 548 . V. MarshaU (No. 2) . . 549, 551 V. Nixon 341 V. Otty 428 — V. Stevens 330 V. Williams 275, 387 Davis, JJfi (8 Eq. 98) 435 (12 Eq. 214) 64, 81 (3 De G. & J. 144 ; 4 Jur. N. S. 1029) .... 29 ». Andrews 451 V. Barrett 469 V. Chanter 79 1). Davis 265 V. Duke of Marlborough. . 469 V. Dysart (Earl of) (20 Beav. 413) 372 (21 Beav. 124) 8 V. Flagstaff Co 275 V. James 356 V. Morris 324, 338, 448 v. Spence 331 Davis's Estate, Re 28 Davyf). Garrett 355, 356, 360, 610 V. Price 472 . Daw ». Eley 188, 383 DawMns v. Morton 506 Dawson, JB,e (28 Beav. 605) 11, 13 (6 N. E. 346) 65 (3 N. R. 397) . . 78, 80, 81, 85 I-. Beeson 480,566 — • V. Jay 478 V. Eaynes 472 Day, He 462 . V. Batty ._ 347, 499 I). Brownrigg 468 V. Croft 472 V. Radcliffe 337 V. Whittaker 217, 407 Dean «. Thwaite 398 V. Wilson 475 Deanes v. Kitchin 317 Dear v. Sworder 364 Dearden, Re 13, 558 De Bay v. GrifBn 7 De Beauvoir, Re 40 De Brito V. Hillel 441 D'Epineuil, Re 280 Deere, Re 188 Defries ». Creed 469 De Hart ». Stevenson 336 D'Hormusgee v. Grey 333, 541 De la Rue v. Dickinson 392 De la Touohe, Re 58 Delves v. Delves 475 De Montbrun v. Hirsoh 318 Dempsey v. Dempsey " 475 Dence ®. Mason 516 Dendy, Re 9 Denison v. Hardings 318 Denning v. Henderson 475 Dennis, JJ« (12 W.E. 575; 3N.E. - 636) 79, 81 (5 Jur. N. S. 1388).. 102 V. Orompton 354 - V. Morris 464 - V. Seymour 331 Densem v. Elworthy 335 Dent v. Basham 9 V. Dent 454 v. Sovereign Life Assurance Co 411 Derbishire v. Home 397 Derby Municipal Estates, Re .... 28 Derriman, Re , 39 Desborough v. Harris 55 Devaynes v. Eobinson ..334, 335, 345 De Visme, Re 77 Devon & Somerset Ely., Re. . 171, 172, 175 De Voy v. De Voy 91 Dewdney, Ex parte 4 De Windt f . De Windt 372 De Winton ». Mayor of Brecon . . 469 Diamond Fuel Co., Re 517 Dick V. Munden 541 Dicken v. Hamer 4 84 Dicker v. Clarke 317 DicMn V. DicMn Ill Dickinson, Re 81, 491 Dicks V. Brooks 511 V. Yates 266, 539, 540 Dickson, JJ« (8 DeG.M.G. 655).. 10, 11, 13 (W. N. (1884) 235 . . 121 (W. N^(1872) 223; 27 L. T. 671).. 72, 73, 75, 81 (1 Sim. N. S. 34) . .55, 56 «. Harrison 267 Dier v. Martin, Re Martin 506 Digby 11. Turner 189 Dimes ». Wright 5 Dinning v. Henderson 41, 504 Disney, Re 57 Ditton, jEx parte, Re Woods 4 Divers, Re 28, 39, 45 Dii V. Groom 375 Dixie t). Wright 28 Dixon, Re 66, 72, 73, 75, 81 — V. Jackson 29 v. Morley 58 V. Wilkinson 472 V. Wrench 459 ». Wyatt 400 Docker, Ex parte, iJc Heritage ..5, 10, 13 Docwra, Re, Doowra v. Faith .... 498 Dodd, Re (W. N. (1871), 83) ... . 40 (6 W. E. 174) 434 Dodds ». Gronow 183 V. Shepherd 609 v. Tuke 395 Dodkin 4-. Brunt 81 Dodson V. Sammell (1 Dr. & Sm. 675; 9W.E. 887) 101 (8W.E. 252).. 380 Dodsworth, Re 57 Doe d. Hutchinson ». Manchester, Bury & Eoseudale Ely. Co 36 TABLE OP CASES. XXXI FAOE Boggett V. Eastern Counties Ely. 24 Dolman, Me. 5 Bolphin V. tayton 456 Domville v. Lamb 404, 406 Doodson ». Turner 189 Doody V. Higgins 344 Douglas V. Aj^hbutt 440 V. L. & North Western Rly. Co 36 Douthwaite v. Spensley 606 Dove, Jte 606 Do-wdes-vrell»..Dowdeswell..267, 343, 418 DowEag, Se 32, 42 V. DowKng 372 V. Hudson 469 Downea, Se 10, 12, 14 Downing College Case 559 Doyle V. Kaufman 316, 538 Drake, Se (22 Beav. 438) 11,12 (8Beav. 123) 13 ». Drake 518 V. Symes ,..., 337 V. Tiefusis 29 Draper, Se (2 W. R. 440) 81 (9 W. E. 805) 77, 78 V. Manchester, &c., Biy. Co 391 Drapers' Co. v. McOann 108 Drennan v. Andrew 341 Dresser v. Morton 341 Drever v. Maudsley 472 Drevon v. Drevon 435 Drew, Se 13 V. Clifford 5 Drewe, Se 81 Drewery, Se 57 Drinkwater v. Eat<;liffe 180, 181 Driver, Se 66, 79 Dryden v. Foster 466 V. Erost 436 Duce, Se 65, 80 Duekett v. Grover 333 Dudley, Se 189 Dufaur V. Sigel 540 Duffield V. Elwes 445 Dummer, Se 29 Dunkirk Colliery Co. v. Lever . . 421 Dunn ». Dmm 391 V. Hales 4 Dunraven Co., Se 263 Duntv. Dunt 13 Dupuy V. Welsford 338 Durrant v. Eicketts 330 Dyke v. Cannell 268 Dylar, Se 40 Dymond v. Croft 317, 367 Dynevor Co., Se 352 Dyson v. Piokies 407 E. E. v-V 305 Eade v. Jacobs ' 385 V. Winser 457 ■ V. Johnstone 321 PAGE Earl, Se , 435 Earle v. Sidebottom 400 and Webster, Se 167 Earp ». Lloyd 386 East, ii«(2W. R. HI) 42 (8 Ch. 735) 80,- 83, 84 East Lancashire Ely. Co. v. Hat- tersley 439 and West Junction Ely. Co., Se 171, 173 Eastern Counties Ely. Co., Ex parte 48 V. Tufnell 45 Eastwood V. Clark 491 Eaton V. Storer 369, 374, 538 Eberaley's Co., Se 409 Ebrard v. Gassier 541 Eocles V. Liverpool Borough Bank 479 Ecclesiastical Commissioners, JSx parte (13 W. E. 675) 43 (39 L. J., Ch. 623) 40 (W. N. (1873), 173) 39 Eokersley v. Eckersley 380 Eden v. Naish 257 ■ V. Thompson 41, 42, 44 V. Weardale 348, 356 Edgington v. Eitzmaurice 543 Edmonds v. Foley 388 Edmunds, Se 15, 40, 43 Edward Sixth's Almshouse, Se ., 30 Edwardes v. Burke 541 Edwards, Jix parte 37 Se 64, 189, 339 ■ V. Edwards 469 V. Grove 462 V. Harvey 232 V. Lawless 4 V. Lowther 336 V. Spaight ■. . 423 Egerton v. Anderson 363 Eggington v. Cumberlege 4 EgUngton (Lord) v. Lamb 388 Egremont (Lord), Se 32 Elderton, Se 98 Eldridge, Se 6 V. Burgess 351, 417 Electric Telegraph Co. v. Nott . . 439 Elgar, Se 55 Ellerthorpe, Se 66, 68 Ellioe ». EoupeU 430 Elliot, Se 66 EUis, Se 64, 66, 75, 82 V. Eobins 433 'EQiaon, JEx parte 30 Se (8 De G. M. & G. 62). 39 (2 Jur. N. S. 62) . . 81, 82 V. Thomas 510 Elliston V. Sheldrake 327 Elmer v. Creasy 392 Elmore, Se 103 EhnsUe, Se (12 Beav. 638) .... 6, 12 and Co., Se (9 Eq. 72) . . 5, 10 (16 Eq. 326) . . 7 Elsom, Se 267 Elwes, Se 103 V. Elwes 402 Ely (Dean of) v. Gayford . . 345, 347 Emden v. Carte 17, 18 Emeny v. Sandes 541 TABLE OF CASES. PAOB Emma Mining Company v. Grant 413 Silver Mining Co., Re.... 429 Emmet, Re 615 England v. Lord Tredegar 101 Engleheart v. Moore 4 EngUsh, JS« 44 V. Tottie 382, 383 EnthoTen v. Cobb 389 Equitable Eeversionary Interest Society v. EuUer 369 Ernest v. Partridge 549 Esgair Mining Co., Re 493 Etherington v: Wilson 266 Eton College, Ex parte (3 Ely. Ca. 271; 15 Jnr. 46) 40, 41 Enropean Banking Co., Re 548 Evans, Ex parte 8, 469 JJeWatkins .... 177 Re (30 Beav. 232) 103 (UCh. D. 511) 30 ("W. N-. (1873) 46) ... . 37 (7 Ch. 609; 41 L. J., Ch. 512 ; 20 W. E. 695; 26L. T. 815).. 66, 69 Jane 30 V. Bear 189 V. Buck 334 V. Edwards 541 1). Evans 180 V. Louis 387 V. 'WiUiams 104 Evelyn v. Chippendale 541 S.Evelyn 374,413 Everett, jBe 53 V. Prythergcb 188 Everson v. Matthews 341 Ewart V. WiUiams 398 Exchange Bank ». Billinghurst . . 511 Eyre, Be (49 L. T. 259 ; W. N. (1883), 153) 122 (10 Beav. 569) 7 (4 Kay & J. 268) 476 V. Barrow 188 V. Cox 306 , Re Jones 315, 538 V. Hughes 255 V. Morering 337 V. Shaftesbury (Countess of) 98 E. F ,Re 7 Eagg, Re 65, 56 Eairolough v. Marshall 258 EaithfuB, ife 17 V. Ewen 18 Fane v. Fane 640 Farington, Re 6 Parquiarson v. Pitcher 479 Farr v. SherifEe 548 Farrant, Re > 84 Farrell v. Wale 417 Farrer v. Sykes 438 Farrow v. Austin 540 V. Eees 549 FAQE Faulkner v. Daniel 469 Faversham Charities, Re 30, 32 Fawthrop v. Stocks 183 Feame v. Wilson 8 Feams v. Young 39= Feaver v. Williams 383 TTa llrin v. Lord Herbert 383 FeUowes v. Deere 337 FeUows, Re 83, 84, 88, 484 V. Barratt 338 V. Thornton 456 Feltham, Re 55 Felthouse v. Bailey 426 Fennel v. Brown , 439 Fennings v. Humphrey 566 Fenton v. Crickett 558 V. Cumberlege . .428, 439, 490 Ferguson v. Benyon 436 V. Ferguson 189 V. WUson 539 Femandes, Re 20 Fernandez, Re 426 Femyhough v. Naylor 437 Ferrand v. Mayor of Bradford . .. 566 Ferrers (Earl) v. Stafford & Ut- toxeter Ry 38 Ferrler v. Atwool 383 Ferrior, Re 65 Fiddey, Re, Heinrich v. Sutton . . 16 Field, Re (16 Beav. 593) 7 (W.N. (1877), 244).... 7 V. Carnarvon Ely. Co 47 V. Field 465 V. Seward 504 Fielden ». Hornby 227 Finch, Re 42 V. Jukes 108 Finlay v. Davis 410 V. Scott 348 Finnegan v. James ,...,■ 392 Finney, Re 68 V. Hinde 460 Fiott V. MuUins 429 Firmin v. Pullen 55 Fislier, Re (18 Beav. 183) 7, 14 (W. N. (1881), 137 ; 30 W. E. 57) 60 V. Bunbury .' 541 V. Coffey 433 V. Fisher 38 V. Hughes 85 V. Owen 360, 385 V. Val leavers Asphalte Co 279 Fishmongers' Co., &;^. Davies 341 «;. Knoop 348 V. Eoberts 466 J). Scott 182 Fox V. Amhurst 29 V. Bearblock 506 «.Blew S42 «!. Charlton 15 Foxen v. Foxen 499 Foxon V. Gascoigne 18 Poxlowe V. Amcoats 397 FoxweU V. Webster 466 Fozaid, Ee 68, 60 Frampton v. Webb 327, 544 Francome v. Francome 439 Franklin v. Featherstonhaugh . . 8 'Ersea^jia., Ex parte 31 Eraser v. Cooper 336 ,;.HaU&Co 364 V. Thompson 644 Freason v. Loe 374, 413 Freehold Land Co. v. Spargo 542 PAQE Freeman r. Butler 384 V. Fairlie ■... 388 Freemen and Stallingers of Sun- derland, Ex parte 36, 37 French, Be 102 Freston, Ee 189 Friend v. SoHy 558, 659 Fi-itz V. Hobson 380, 478 Frodsham v. Frodsham .... 86, 92, 487 Frost V. Hamilton . , 397 Frowd w. StiUard 5 Fry, Ex parte 341 V. Ernest 188 Fryer v. Wiseman 340, 422 FuIliam,JSc 88 FuHca,The 465 Fuller V. Alexander , 331 Fuller's Settlement, Ee 96 Furber v. King 317,386 Fnmess v. Booth 355 FusseU V. Dowdiag 352 Futvoye v. Kennard 188 Fyfe v. Arbuthnot 372 Fyfe'sCase 345 lyier i>- Fyler 380 Eyson, Ee 10 G. Qc.v.^B. 361 Gage V. Kutlamd, Ee Oabbum . . 540 GaitskeU, Be 6, 7 GaUiers v. Metropolitan Ey 36 Galloway v. Corporation of Lon- don 7 V. Mayor of London . . 618 Gamston (Rector of), ia;i)«rfe .. 29 Gandee v. Stansfield 384 Gandy v. Reddaway 549 Garbutt v. Fawcus 257 Garcias v. Ricardo 518 Gardner, Ee 65, 68, 470 V. Cowles 64, 91 • V. Irvin 388 V. London C. & D. Rly. Co 178, 469 Gare, Ee 252 Garey v. Whittingham 548 Garland v. Garland 469 Garhck ». Lawson 372, 405 Garling v. Royds 411 Gamett, Be 489 V. Bradley 38, 271, 539 Gamett Orme, Be 141, 149 Gamier, Be 57, 59 Garrard, Ex parte 614 Garrod v. Holden , 341 Gartside, Ee 79 Garty, Be 79 GaskeU, Ex parte 39 V. Chambers 319 Gaskin J). BaUs 468 Gates V. Buckland 436 Gath V. Webster 332 Gathercole v. Smith 355, 516 Gaunt V. Taylor 648 C TABLE OF CASES. PAOB Gaudet, Re.. 257 Qairthorpe v. Gairthorpe 468 Gay V. Labouchere 385 Gedye, Re 5, 7 Gee V. Gee 338 General Estates Co., Se 605 Exchange Bank v. Homer 188 Share Co. v. Wetley Co. . . 380 Gething v. Keighley 398 Gibbm,-ffie 81, 117 Gibbings v. Strong 376 Gibbon, Re 80, 88 Gibbs V. Daniel 617 V. Haydon 116 V. Phillipson 188 Gibraltar Banking Co., Me 439 Gibson v. Wills 345 V. "WooUard 474 Giddings v. Giddings 542 Gilbert v. Comedy Opera Co 440 V. Endean 434, 445 V. Guignon 658 V. Russell 444 ». Smith.... 180, 181, 183, 396 Giles V. Hamer 17, 18 Gill V. GJlbard 437 jj.Woodfin., 376 GiU'sCase 280 GiUatt, Re 81 Gillespie v. Alexander 600 Gillow V. Rider 7 Giraud, Re 79 Girvin v. Grepe 331 GlanviUe, Re 92, 380 Glazbrook v. Gillatt 462 Glebe Lands of Great Teldham, Re 38 GledhiU «, Hunter 325, 353 Gledstanes, Re 54, 61 Glendeiming, Re 55 Glenny and Hartley, Re 80 Glossop V. Heston Local Board . . 422 Gloucester Charities, Re 79 (Dean of), Ex parte .... 34 Gloucestershire Banking Co. v. Phillipps 193, 285, 348, 349 Glover v. Ellison 399 Goddard v. Jeffreys 612 V. Haslara 345 V. Parr 437 Godden ». Corsten 309 Godfrey, Re 53, 70, 73, 76 Goe, Re 43 Gold, Re 10 Grolding V. Wharton Saltworks Co 331, 360, 610 Goldsmith v. Goldsmith 342 Gombault, Re 68, 439 Gooch, Re 30 Goooh's Case, Re Contract Cor- poration 385 Good Intent Benefit Society, Re.. 65 V. Blewitt 499 Goodale i-. Gawthom 426 Goode V. West 66, 67 Goodrich v. Marsh 183, 335 Goodsman, Re 63 Goodwin ». Archer 542 Goold, JJ« 351 PASB Gordon, Re 66 V. Dalzell 10 V. Jennings 456 GoreLangton, Jfc 39, 42, 43 Gosling V. Gosling 372, 406 Goss, Re 436 Gosset V. Campbell 376 Gough V. Bage 77, 88 V. Heatley 396 Gould, Ex parte 113 Gover v. Stilwell 66 Gowran v. Bamett 641 Grace v. Baynton 64, 78 Graham v. Campbell .... 265, 468, 512. . V. Graham, 399 v. Wickham 558 Grainge, Ex parte 30 Grange, Re 81 v. White 186 Grant, Re (2 J. & H. 764) 88 V. Banque Eranco-Egyp- tienne 616, 517, 618 ■ V. Easton 309, 330 V. Grant (34 L. J., Ch. 641 ; e N. R. 347) 81 V. Grant (5 Russ. 189) . . 378 Gray v. Lewis 334 V. Webb , 365 Grayson,. Re . .^ .,,.., , . 91 Great Australian Co. v. Martin . . 322 ^ Eastern Ely. Co. v. Nor- wich and Spalding Ely. Co 662 Northran Ely. Ex parte . . 48, 49 Re Ill Co. V. Ta- hourdin .. 168 Southern and WestemEly. Ex parte 44 Western Colliery®. Tucker 392 ^ Rly. Co., Ex parte 46 Greaves, Re 308 V. Fleming 367 V. Keene 189 Green, Re (26 Ch. D. 16) 17 (lOCh.272) 83 (2 De G. E. & J. 121) 101 (8 W. R. 403, 6 Jur. N. S. 530) .... 102, 103 v. Angell 106 V. Bennett 411 ». Chamock 541 V. Measures 344 ». Sevin 368, 359, 378 ». Smith 280, 281 Greening D. Beokford 461 GreenaiU, Re 466 Greenwood, Re , 69 V. Churchill 658 V. Sutherland ...... 405 Greer v. Toung 16, 18 Gregg, Re 8, 12 V. Taylor 6 Gregson, Re 888 Greig v. Somerville 499 Gredey v. Mousley 383, 389 Gretton v. Mees. 367 Greycoat Hospital v. Westminster Commissioners 317 TABLE 01" OASES. PAGE Gridley v. Austen 4, 5 Griersou v. Astle 88 Griffin v. Allen 513 Griffith, JJe 10 V. Blake 468 Griffiths 4'. Cambrian Rly 172 V. Cowper 317 V. GrifEths 17, 475 Grills ». Dillon 517 Grimoldby (Rector of), ie^arte.. 28 Grimsby v. Webster 462 Grimwood v. Bartels 182 V. Shave 341 Groom, Se 89 Groome v. Eathbone 331 Grove, Me 57 V. Samson 6 Groves v. Carbert 180 V. Groves 391 V. Levi , 345 Grundy v. Buokeridge 81 , Kershaw, and Co., Se .. 10 Gu^ret V. Young ...'. 653 Guest V. Cowbridge Ely 177, 179 «.. Neames 231 ■^. Smith 476 Guibert, He 80, 81 Guilden Sutton (Lioumbent of), Sx parte 39, 40, 41 GunneU v. WHtear 54, 55 Gnnson v. Simpson 70, 81 Gumey v. Gnmey 372 Gwyer v. Peterson 466 H. H., Me 468 Habershon v. GiU 467 Hacking ». Whalley 185 Haddan, Se 384 Hadgett v. Conmiissioners of In- land Revenue 94 Hadley, Se 79 V. MacdougaU 389 Haggitt V. TTiifP 435 Haigh V. Ousey 5 Hair, Se (10 Beav. 187) 5, 6 (11 Beav. 96J 7, 9 (8 Scott N. R. 231) .... 15 Haire v. Lovitt 42, 43, 44 Hakewell, Hx parte 341 V. "Webber 417 Haldane v. Eckford 387 Hall, Sx parte ...,259, 468, 514, 552 Se 30, 62 V. Austin 334 & Barker.iJe 7, 17 Dare, Se 108, 125 V. Eve 355, 359 i;. Hale 64, 77, 78 1-. Hall 462 PAOE Hall V. Liardet 384, 393 V. Pritchett 456 Hallett, JJ« 11 HalsaU, Se 5 Halsey, Se 30 Halstead United Charities, Se .. 42 Haly V. Barry 459 Hamburger v. Poetting 541 Hamer v. Giles 17, 18, 456, 457 Hamilton v. Davies 317 V. Hector 99 V. Nott 383 Hamlyn v. Bettely 420 Hamond v. Walker 335 Hampden v. Wallis 445, 455, 479 Hampaon v. Hampson 383 Ham's Trust, Se 66 Hampton v. Hohnan 372 Hanbury, Se 39, 40, 148 Hancock v. Guerin 387 Hancox v. Spittle 66,72, 82 Handley v. Davies 64 V. MetcaUe 68 Haney, Se 60 Hankey v. Morley 52, 68 Hanmer v. FKght 331 Hannaford v. Hannaford 17 Hanover (King of) v. Bank of England 79 Hansen v. Maddox 509 Hansford, Se 53, 59 Hanslip v. Kitton (8 Jur. N. S. 835) 563 (1 De G. J. & S. 440) .... 387 Harbord v. Monk 382 Harborough (Earl of) v. Shardlow. 35 Hx parte .... 40 Hardiman, Se 180, 185 Harding, Se 13 V. Tingey 378 Hardley, Se 52, 53 Hardman, Hx parte 84 Hardwick v. Wright 398 Hardwicke (Earl of), Ux parte.. 28, 40 Hardwidge, Se 267 MaxAj, Sx parte 28 Se 41 Hare v. Hare 401, 404 Harford, iJ« 81 Hargreaves v. Scott 551 V. Wright 68, 70, 78 Harker, Se 513 Harle, Se 7, 13 Harlook v. Ashberry ........ 363, 616 Harper, Se 12, 14 Harpham v. Shaoklook 265, 612 Harries, Se 12 Harrington v. Harrington 518 Harris, Ux parte 84, 88 Se (2 W. E. 442) 57 Se (7 Jur. N. S. 166) .... 433 ». Aaron 266, 512 V. Fleming 320, 517 V. Gamble 355, 358, 359 V. Hamlyn 544 V. Owners of the Eranconia 321 V. Jenkins 356 V. Jewell 460 c2 TABLE OF CASES. FAOE Harris v. Petheriok , , 539 V. Start 6 Harrison, Me (Seton, 616) 64 JJc (13 Ch. D. 603) .... 512 Re (22 L. J., Cli. 69) 79, 80 lie ("W. N. (1883), 31) . . 119 V. Botteuheim 331 V. BoydeU 472 V. Com-waURly. Co. 18, 401, 402, 612 r— V. Leutner373, 374, 655, 560 r. Smith 65,77,90 — 11. Stewardson 316 Harrop, Se (3 Drew. 726) 28 Se (24 Ch. D. 717) . . 148, 149 £x parte 37 Harry v. Davey 336 Hart V. Hart 257 V. Herwig 317 V. Tulk 469 Harter v. Colman 115 Hartington, Rector of, Ilx parte , , 29 Hartley, Be (2 Jui. N. S. 448) . . 9 (30 Beav. 620) 10 ("W. N. (1879), 197).. 181 V. Dilke 317 V. Owen 392 Hartmont v. Foster 266 Hartnall, iJe 66, 73, 74 Hartwell v. Colvin 499 Harvey, Se 64 V. Bradley 398 V. Brooke 476 V. Croydon Sanitary Au- thority 266 V. Hall 188, 189, 455 V. Harvey 456 V. Mayhew 8 Harwood, Se 91 Hautie v. Hastie 511 Hastings v. Hurley 320, 538 Hatch V. Searlea 603 Hattatt, Se 81 Hatton V. Haywood 177 Ha-w V. Viokers 346 Hawes ». Bamford 433 Hawkes, Se 58, 59 Hawkesley v. Gowan 461 Hawkins, Sx parte 37 r. HaU 188 V. Morgan 464 Hawks V. Hawks 24 Hawthorn v. Harris 316 Hayoook, Se 52 Hayes, Se 30 Hayne, Se 37 V. Cavell 562 Haynes v. Barton 41 e. Cooper 18 Hays V. Trotter 8 Hayter, Se 491 Hayton v. Beall 452 Hayward, Se •. 44 V. Hayward 492, 493 V. Pyle 346 V. Smith 182 V. Stephens 436 Hazle, Se 153 Headden v. Emmott 345 PAOE Headingtou, Se 64 Healdi'. Hay 317 • Heapby, Se 80 Heard v. Borgwardt 337 V. Cuthbert 88 Heath I'. Fisher 474 V. Pugh 260, 353 r. Wallingford 440 Heather, Se 8 Heatley v. Newton 267, 334 Hedges «•. Clarke 231 Hedley i>. Bates 257, 468 Heinrich, The 18 v^ Sutton 16, 548 Hele r. Lord Bexley 347 i;. Ogle 316 Hellier v. Ellis 384 Heming, Se 55 V. Leifohild 568 Hemming, Sx parte ,.12, 13, 14, 191 ii. Wilton, 8 Henderson v. Atkins 538 V. Bipley 393 V. Aikin 478 '. Bohmann 467 Henniker v. Chafy 41, 42 Henshaw, Se 52 V. Angell 606 Hereford, &c.. Railway Co., Se. . 41 Heritage, Se, Ux parteDcxikei 5, 10, 13 Herring v. Clark 65 V. Clobery 517 Hertford (Marquis of), JSe 460 Heslop V. Metcalfe 9, 17 Hetherington v. Longrigg 396 Heugh V. Chamberlain 360 ». Garrett 391, 392 Hewetson v. Todhunter 346, 347 Hewitt, Se 71, 89 Hextall V. Cheadle 493 Hey, Se 76 Heymann, Se , 436 Hick V. Lookwood 469 Hicks V. Hicks 472 Higginbottom v. Aynsley 374 Higgins, Se 108 V. Woolcott 8 Higginson v. Hall 387 Higgs V. Dorkis 182 V. Sohrader 16 Highton V. Treheme , 516 Hildick, Se 281 Hill, Se 81, 108 v. Bonner 347 r. Campbell 383 V. Hart-Davis 437, 468, 553 V. King , 494 V. Metropolitan Asylums Board 549 Hillary, Se 52 HiUman v. Mayhew 264, 265, 363, 463 464 Hilton V. Hilton 604 Hincks, Se 189 Hind V. WMtmore 542 Hindle v. Taylor 402 Hinton, Se 6 Hirst V. Procter < 434 Hitch V. WeUs 327 TABLE OF CASES. PAOE Hitehia v. Hughes 537 Hitduns v. Tate 4 Hoar V. Loe 3S3 Hoare, He (i GifB. 254) 68 • (IIW. E. 181) 96 ti. Wilson 390, 391 Hobbs V. Eeid 346 Hobhouse v. Courtney 317 Hobson, Me 30 V. Jones 398 V. Monk 309, 330 V. Monks 363 Hoby ». Hitchcock 641 Hooh V. Boor 265, 268 'Kod^e, Hx parte 43 Hodges, lie (4 De G. M. & G. 491) 58 ■ (6 W. E. 487) 69 (3 K. & J. 213; 3 Jur. N. S. 860 66 V. Hodges 120, 478 Hodgson, iJe(18 Jut. 786; 2 Eq. E. 1083) ..56, 58, 59 (W. N. 1884, 117).. 640 (11 Ch. D. 888) 67, 89 Hodgson's Will, He (22 L. J., Ch. 1055) 60 Hodson, Se 79 V. Moohi 355, 364 Hoffman v. Duncan 469 Hoffmann v. PostiU 392 Holbrook, Se 85, 91 Holbrooke v. Cracraft 374 Holden, Se 39 c. Silkstone Co 466 Holland, Se 7, 67, 73 i-. Prior 334 V, Gwynne 6 V. Worley 543 Hollick, Ux parte 30 Hollier v. Burne 34 Holloway v. Cheston 266, 485 V. York 363, 463, 464 Holmes, Se 201 i>. Harvey 464, 465 V. Magrath 5 V. Eeg 201 Holroyde, Se 8 «>. Gamett 189 Holt, Se 98, 455 Holywell (Eector of), ^2;^«rfe 40, 41 Holywell - cum - Needmgworth (Eector of), Hx parte 29 Home Assurance Association, Se 642 Counties Life Assurance Co., Se 493 Honduras Ely. Co. *. Tucker 334, 336 Honywood v. Hopywood 148 Hood V. Cooper 380 Hook, JJ« 13 Hoole V. Eamshaw 309 ■„. Eoberts 462 Hooper, ^x parte 43, 44 Se (14 Ch. D. 1) 253 iJc (29 Bear. 657) 103 Se (9 Jur. N. S. 670) . . 506 V. Campbell 427 f. Gumm 383,390 V. Smith 516 PAGE Hooper v. Strutton 64 Hooson, Ex parte 189 Hope, Se 189, 455 V. Carnegie (1 Eq. 126) .... 317 V. (4 Ch. 264).... 266 «!. Hope 317,372 «'. LiddeU 388 V. ThreUall 440 Hopewell r. Barnes 469 Hopkins, Se 280, 361 Hopkinson !>. Lord Burghley .... 389 Hopton V. Eobertson 330 Hordem, Ex parte 43 Here V. Smith 41 Here's Estate, Se 41 HorEeld Trust (Trustees of), Ex parte 31 Horlook V. Smith 13 Hornby i>. Holmes 317 Homer, Se 28 Horton v. Bott 385 Horwood, Se 30 Hoskin, Se 65, 266 Hoskins, Se 84 V. Campbell 466 Hotham (Lord), J?e 103 Hough V. Ed-wards 457 V. "Windus 453 Hounston v. Sligo (Marquis of) . . 384 Ho-w, Se 31, 68 Ho-ward, Se (6 De G. & Sm. 435) 65 (3 W. E. 605) 76 ■ V. Eobinson 384 Ho-well V. Dawson 609 V. Keightley 506 V. Metropolitan Ely. Co. . 456 458 V. West 334 Howes V. MoKeman 383 Howkias, Se 101 v. Bennett 317 Hubbard JBe (15 Beav. 251) 13 . (23Beav.481) 668 V. Hubbard 78 ». Latham 499 Huddersfield (Corporation of) v. Jacomb 180 Hudson V. Carmichael 505 i). Osgerby 543 Hue, Se 65 Huggons V. Tweed 355, 386 Hughes, iJ« 82,117 V. Jones 380, 417 -0. Murray 13 Hulkes V. Day 461 Hull and County Bank, Se 513 and Hornsea Ely Co., Se . . 179 Himiber Ironworks Go., Se 548 Hume 11. Eichardson 105 Humphreys v. Edwards .... 463, 464 Humphry, Se 80 Hungerford's Trusts, Se 31 Hungerford, JJe 31,42,44 Himnings v. Williamson 382 Hunt V. Austin 17, 317 41. Chambers, iile Martin ..411, 412, 610 V* Elmes 383 TABLE OP OASES. PAGE Hunter v. Hunter 510 V. Myatt 376 V. Wortley 24 V. Young 102, 343, 499 Huntley v. Clutterbuok 85 Hurry v. Hurry 183 Hurst, Re 76 V. Hurst 317 Husband, Ee 436 Hussey v. Home-Payne 512 HutcMas & Eomer, Ex parte .... 517 Hutchinson, Se (1 Dr. & Sm. 27) . 58 (32 "W. E. 392; W.N. (1884), 35). 494 (W. N. (1867) 49) 566 V. East Lancashire Ely. Co , 36 ». Glover 382, 389 V. Hartmont . . 189, 466 V. Manchester Bury and Bosendale Ely. Co 36 J). Massarene 469 V. S-wift 541 V. Ward, Se Smith.. 406 Hutchison v. Colorado Oo 348 Hutley, Ee 463 Hutton V. Mansell 475 Hyatt, Ee 74 Hyde, Ex parte 39 V. Benbow 83 ©.Large 317 V. Warden 258, 468, 472 Hyett V. Mekin 182 Hyman v. Helm 257 Ilderton, Ee 5, 6 lUman, Ee 30 Imperial Land Co. of Marseilles, Re , 423 Imperial Land Co. of Marseilles i\ Masterman 423 Inderwick, Ee 7 Indian Mining Co., Re 516, 517 IngUby 1). Shafto 383, 384 Ingle, Re 7 V. McCutohan 4 Inglis 1!. Mansfield 266 Ingram, Re 3'69 V. Little 382 Inman v. Whitley 388 Insole, Re 56 Irby, Re 54, 65 Ireland (Land Credit Co. of). Re . 102 V. Lord Eermoy . . 450 Irlam v. Irlam 406, 407 Isaacs, Ex parte 617 «'. Diamond 319 Isis, The 356 Isle of Wight Ferry Co., Ee .... 178 PAQE Issauchaud, Ex parte 37 Ivory, Ee 252, 517 — V. Cmikshank 328,463 J ». J 371 Jabloohkoff Oo. v. MoMurdo, 349, 350 Jackson v. Litchfield 324, 448 V. Lomas 183 V. Mawby 188 V. N. E. Eailway Oo. . . 351 V. Shanks 317 V. Slaney, Ee Clinton . . 85 V. Smith 17, 18 V. Tumley 372 v.Tjas 369 Jacob, Re (9 W. E. 474) 103 (29 Beav. 402) 103 Jacobs V. Brett 477 V. Brown 348 V. G. W. EaUway Co 387 Jacques, Re 514, 516 =- V. Harrison 113, 377 Jaoquot V. Boura 309 James, Re (4 De G. & S. 183) .... 8 ^ (W. N. (1884) 172) . . 154 D. Aston 345 V. Barraiid 192 V. Crow 417 V, Dore 341 V. G-wynne 400 Jaquet v. Jaquet 485, 506 Jarmain v. Ohatterton 266, 510 Jarman, Ex parte 6, 9 Jarvis's Charity, Ee 51, 79 Jefferson ». Warrington 5 Jefferys r. Smith 380 Jeffreys v. Evans 4 Jeffryes v. Drysdale 65, 85 Jenkins, Ee (3 N. E. 408) .... 54, 55 (10 Jur. N. S. 332) . . 56 ■ — V. Bryant 315, 504 V. Davies 396 r. Eereday 189 Jenkyns v. Bushby 383 Jenner v. Morris 15, 438 Jennings v. Johnson 20, 22 V. Jordan 115 V. Eigby 104 Jephson, Re 56, 58 Jervis v. Berridge 362 Jesse V. Beimett 3-35 Jessop, Ee 10 Jesus OoUege, Ex parte 486 Jewitt, Ee (34 Beav/ 22) ... , 9 --_ — (33 Beav. 559) 188 Jiminez v. Owen 564 Joad V. Eipley 486 Job V. Job 260, 397 Johns V. James 385 Johnson, Ex parte 434 Ee (8 Eq. 348) 29 & Tustiu, Ec 109 (W.N. (1884) 200 110 TABLE OF OASES. PAGE Johnson, He (3 N. E. 655) 341 ■ V. Burgess 178 V. Diamond 456 V. Mofiatt 464 Johnson's Patent, Re 252 Johnston V. Brown 402 Johnstone v. Cox 266, 512 ■ V. Royal Courts Co. ^ . . , 267 Joint Stock Discount Co., J?« 391 f. Brown 346 3o0iSf>, Ex parte 43,44 Bo 40, 41 V. Hector 399 Jones, Ex parte 42 -Be (2 Ch. D. 70) 88 (9 Eq. 63) 5 (13Eq. 336) q (39 L. J. Ch. 190 ; 18 W. E. 312; W. N. (1870), 7) 29,40, 42 (24 Ch. D. 583 ; 26 Ch. D. 736) 141, 153 (8 Beav. 479^ 8, 10 (3 Drew. 679) 54, 55 (6 W. R. 276) 345 (2 De a. E. & J. 554) . . 88 (4 Jut. N. S. 581, 887 ; 6 W. E. 614, 672), 38, 39 (8 W. E. 66) 506 , Eyre v. Cox 315, 538 V. Anon 439 V. Batten „ 478 P.Brandon 317 V. Cargill 317 v. Elderton 348 V. FouLkes 345 V. Frost 16, 18 V. Jones (W. N. (1884) 17) 394 (14 Ch. D. 593) . . 413 (Kay, App. 6) . . 384 V. Lewis 41 V. London Eoad Car Co. . . 384 V. Monte Video Gajs Co. . . 387 V. Eoberta 8 . V. Thompson 456 V. Wedgewood 413 r. Williams 460 Jopp's Case 618 Joselyne, Ex parte 280 Joseph V. Goode 400, 499 Joseph's Will, He 63 Joy V. Hadley 393, 456 Joyce, Ee 64, 80 Jubb V. Bibbs 394 Judd V. Green 617 JndHn, Ee 121 Judkins, Ee. 406 Justice V. Mersey Steel Co 611 Kanitz v. Scarborough , 617 Kathleen Mavoumeen, .Be 516 PAGE Kay V. Hargreaves 392 Kaje, Ee 98 Keane, Ee, Lumley v. Desborough 16, 18 Kearsley v. Philips 388 Keate v. PhilHps 306 Keeler, Ee 64, 70 Keene v. "Ward 5 Keith i\ Butcher 337, 378 KeUand v. Fulford 28 Kellock's Case' 280 Kelly w.Byles 514,649 t'. Hutton 517 Kemp, Ee 149 z\ Waddingham 104 Kemptner, Ee 52 Kenah, Ee 435 Kendall v. Hamilton 260 Kendrick v. Eoberts 364 Kennaway v. Tripp 541 Kennedy v. Edwards 642 V. Lewis 378 Kenny v. HoUings 310 Kenrick v. Wood 558 Kensington (Lord) v. Bouverie . . 397 Kensington Station Act, Ee .... 60 Kent, Ex parte 461 Ker, Ee 9 Kernick v. Kemiok 437 Kerr v. Gillespie 541 Kettlewell v. Barstow 391, 566 Key V. Key 405 Kidd V. Cheyne 610 Kidderminster (Vicar of), Ex parte 43 Kidstone v. Empire Insurance Co 551 Kilkenny Ey. v. Feilden 641 Kincaid, Ee , 67 King, Ee (16 Eq. 521) 34 (16 Jur. 1153 ; 5 De G. & S. 644) 64 V. Bryant 188 V. Corke 377 V. Davenport 374 V. Hawkesworth 275 V. King 54, 55, 88 V. Sandeman 418 V, Savery 554, 658 W.Smith ■. 88 King's College, Ex parte 43 Kington Ry., JJe 173 Kinlooh v. Reg., Ee Banda & Kir- wee Booty 20 Kinnaird v. Kinnaird 322 Kinneir, Ee 12 Kino V. Rudkin 337, 418 Kinsey, Ee 41 Kinshela v. Lee 397 Kirk ». The Queen 201 V. Todd 350 Kirksmeaton (Rector of), Ex parte -28, 31 Kirkwood v. Webster 549, 559 Kitching o. Kitching 354 Kitton, Ee '. 6 Knapping v. Tomlinson 30 Knatohbull, Ee 144, 147 V. Fowle 340, 422 Knieiim v. Schmauss 500 TABLE 01* CASES. FAQS Eniglit, Ee, Knight v. Gardiner. . 265, 45.5 Knight V. Grardner . . 441 (27 Beav. 45) 55 (37 li. J. Ch. 409) . . 56 (Sarah), He .... 88, 117, 266, 639, 540 V. Cory 541 V. Knight (16 Beav. 358) . 470 (14 L. T. 161 ; W. N. (1866), 114) 91 V. Lord Plymouth 472 Knott, Re 280 V. Cottee 475 Knowles, Ze 103, 141 Krehl v. Burrell 266, 515 Ladd V. Fuleston 465 Laffitte Charles, & Co., Be 648 Lafone v. Falkland Islands Co. . . 383 La Grange v. MoAndrew . . 260, 374, 542 Lainson v. Lalnson 504 Laird v. Briggs 378 Lake v. Eastern Counties E.ly. . 46, 46 Megentio, The 542 Lamh, iJ« 81 V. Munster 385 V. Orton 605 Lambert v. Turner 327 Lambeth (Keotor of), .Bs^fWte .. 34 Lambie v. Lambie 227 Laming v. Gee 398, 514 Lamotte, Se 65, 89 Lancashire v. Lancashire 478 and Yorkshire Kly ., Se 28 Lancaster, Ee 59 • Charities, Ee 79 ». Lancaster 430 Lauoefield v. Iggulden 600 Land Credit Society, Ee 383 Landfield, Ee, Landfield v. Land- field 120 Landon, Ee 56 Landore Co., Ee 465 Lane, Ee (24 L. T., 0. S. 181) . . 54 ; (12W. R. 710) 76 '■ — V. Debenham 406 V. Glenny , 4 V. Gray 387 V. Hardwioke 327 V. Sterne 469 Langdale ii!e 103 (Lady) v. Briggs 372 Langen v. Tate 423 Langford, Be 369 Langham v. G. N. Ely 47 Langhom v. Langhom 66 Langley, Ex parte 468 « V, Sugden 544 FAQB Langmead v. Cookerton 181 Langridge v. Campbell 367 Langton v. Waite 386 Lankester v. Wood 466 Lapworth, Be 29 L^rgau V. Bowen 469 Larken, Be 102 Lashley v. Hogg 499 Latch V. Latch 343 Latham v. Hyde 8 Lathropp's Charity, Be 40, 41 Latta, Ee 542 Laughame Ely., Ee 50 Lauretta, The 512 Lautour v. Holcombe 543 La-w, Ee (4 Beav. 509) 85 (21 Beav. 481) 6 (30 L. J., Ch. 512 ; 7 Jur., N. S. 410) 57 Lawrance v. Galsworthy 64 Lawrence, Be 59, 616 V. Campbell 382 Lawrenson v. Dublin Kly. Co. . . 319 Lawson, Ex parte 39 V. Stoddart 484 V. Vacuum Brake Co. . . 423 Lazarus, Be 55, 59 V. Mozley 387, 389 Lazenby f. White 613 Lea, Be 71 Conservancy Board ». Button 649 Leadbitter, Be 5, 11 Leader, The 18, 467 Leake, Be 55 Leathley v. McAndrew 310, 336 Leohmere and Lloyd, Be 108 • • V. Clamp 68, 77 Leconfield (Lord), Ex parte 28 Lee and Hemingway, Ee 39 Be 539 V. Angas 429 1!. NuttaU 253,280 V. Eyder 326 V. Shaw 397 V. Sturrook 344 Leeds Banking Company, Be 449 W.Lewis 484,485,492 Leeming, Be 468 V. Murray 340 Lees, Be 8, 10, 13- D. Coulton 78,183 V. Lees 436, 474 V. Patterson 356 Leese v: Knight 326 Legg V. MackreU 79, 88 Leggott i>. Western 268, 460 Leicester, Ex parte 439 Leigh, Be (6 Ch. 887) 29, 39, 43 (9 Ch. 684) 42 EowoUffe V. Leigh .... 392 V. Brooks 268 V. Turner ,,..., 506 Lemann, Be 80 Lenders v. Anderson 320 Leslie, Be 29, 103 V. Clifford 332 Lester v. Alexander 183 V. Lazarus 4 Lett, Be 6, 12, 558 TABLE OP CASES. PAGE Lett V. Parry 392 Levett, Se 58 Levinger v. Crombie ■. . , . 462 Levitt V. Levitt 435 Lewes, Jle 88 (Earl of) V. Bamett 188 Lewin, £e 5, 98, 341 Lewis, He, Ex parte Munro 20 V. Armstrong 479 V. HUlman 57, 58 V. Kobbs 338 V. Primrose 5 V. South Wales Ely. Co. . 28 Ley ». Ley 468 Liberia (Republic of) i\ Roye . . 385, 392 Liddell, Me 120 ». Norton 389 Liddiard, Re 81 Lietch and Kewney, Se 45 Lightbody's Trusts, Re 84, 117 Lightowler v. Lightowler 32 1 Lilley, Re , 43 Lillwall, Re 120 Lincola Chapel, Re 86 (Kajar ai), Ex parte ..29,43 Lind V. Isle of "Wight Ferry Co. . 383 Lindsay V. Gladstone 391 ■!>. Tyrrell 341 Lingren v. Lingren 327 Lister v. Tidd 461 Lister's Hospital, Re 30, 31 Litchfield v. Jones 386, 392, 479 Lithgow, Ex parte 449 Little, Re , 84 Little's case 510 Liverpool (Rector of), Ex parte .. 31 Bocks, Re 28 Improvement Act, Re, 45, 88 Rly. Co., Re 40 Llanover v. Homfray, Phillips v. Llanover 265, 430, 559 Llewellyn, Re 491 Lloyd, Re 54, 58, 469 V. Attwood 347 V. Cocker 402 V. Dimmack 334, 351 V. Jones 18, 464 i\ Lloyd 332 V. WHtty 427 Lloyd's Banking Co. v. Ogle .... 331 Lockett V. Carey 388 V. Lockett 392 Lockey, Re 472 LocklMrt V. Hardy 5 Lockwood, Ex parte 28, 33 Lodge V. Pritchard 398 Logan V. Baines 397 Lomax, Re 40 London (Bishop of). Ex parte (2 Do G-., P. & J. 14) 39, 40, 42 London, Birmingham, and Bucks Rly. Co., Re 494 London, Birmingham, and Bucks Rly. Act, Re 558 London and Birmingham Rly. Co., JJe 649, 560 London and Blaokwall Rly. v. Limehouse Board of Works, 479, 546 FAOE London, Brighton, and S. C. Rly., Re 28 London and Brighton Rly. Co. i>. Shropshu-e Rly. Co 39 London and Brighton Rly. Co., Re 40, 41, 43 London and County Banking Co. V. Dover 474 London (Corporation of). Ex parte 28, 39 London, Chatham, and Dover Rly., Ex parte (W. N.(1868), 75) 48 London, Chatham, and Dover Rly, Ex parte (8 W. R. 636) . .48, 50 London, Chatham, and Dover Rly. J). Imperial Credit Asso- ciation 513 London and County Assurance Co., Re 492, 493 London Financial Association v. Wrexham Rly. Co 171 London Flour Co., Re 188 London Land Co. v. Harris 464 London (Mayor of). Ex parte .... 31, 272, 303, 305, 486 London and North Western Rly. Act, Re 29 London and North Western Rly., Re 47 London and North Western Rly. V. Corporation of Lancaster . . 28 London Scottish Society©. Chorley 540 L. & S. W. Rly. Act, ii« 40 Go., Ex parte .. 42 ■ ■ V. (jomm 550 li.T.&^.niy. Co., Ex parte.... 47 Long, He (10 Jur., N. S. 417) . . 38 (IW. R. 226) 40,43 (17W. R. 218) 81 V. Croasley 333, 337, 377 V. Storie 345, 346 V. Tottenham 541 Longdendale Spinning Co., Re . , 253 Longman ti. East 268 Longstaflf, Re 437 Longuet v. Hockley 56 Longworth, Re 44 Lonsdale (Earl of) v. Church .... 472 Loog V. Bean 468 Lord, Re 427 ». Colviu 518 V. Lord 399 V. Wormleighton 17 Lorenz, Re 103 Lorimer, Re 55 Loughborough, Re 6, 13 Loughton (Rector of). Ex parte., 41 Loveband, Re 43 LoveU V. WaUis 422 Lowe V. Lowe 515 Lowry, Re 40, 45, 78 Lows, Ex parte 417 Lucas V. Peacock 461 V. Rudd 369 V. Siggers 464 Lucy V.Wood 456 Ludgator i>. Channel! 472 Luke V. Tonkin, Re Symons .... 397 Lumb V. Beaumont 467 xlii TABLE OF CASES. FAQE Lumb V. Osbum 433 — V. WHteley 406 Lumleyv.Desborougli, if«Keane 16,18 Lush, JJe ..65, 68 Lyall V. Weldben 464 Lydall v. Martinson 418 Lyddon v. Moss -4 Lydney Co. v. Bird 642 Lye, Re ....40, 41 Lyell». Kennedy.. 382, 384, 385, 386 Lyie V. Ell-wood 435 Lymington Cbapel, Se 28 Lyon V. TweddeU 385 Lys V. Lys 180 Lysaght v. Edwards 68, 78 Lytton, Me 28 M. MaoAllister v. Rochester (Bishop of) 350, 382, 387 M 'Alpine v. Moore, Re Moore . .64, 81 M'Andre-w v. Barker 515, 616 Macann v. Borrodaile , , . . 338 Maoaulay, Re 29 M'Arthur v. Dudgeon 399 M'Carthy v. Gould 454 Macclesfield Canal Act, Re 31 M'Corquodale v. BeU .". . . 382 Macdonald, Me 41 ■ V. Ajatelme 328, 422 V. Carington .... 354, 355 V. Eoster 406 V. Taoquah Co 466 Macfarlan v. Holt 382 Macfarlane, Re 57 M'Gachen v. Dew 334 M'Gowan v. Middleton 356 M'Gregor v. Keily 4 M'Henry v. Lewis 257 M'llroy V. Duncan 385 M'Intosh V. G. W. Ry. Co. (4 De G., M. &G. 644).. 388, 429 (13 W. E. 1029).. 518 (3 Sm. & G. 146) 494 Mack V. Ward 456 M'Kay, JJe 7 Mackenzie, Me 144 V. Mackenzie (5 De G. & Sm. 338) .... 74, 433 (Seton, 525) 85 Mackintosh, Re 103, 188 Maokerethv. Glasgow Ey. Co. .. 319 Mackley v. CMUiagworth 549 Mackreth ti. Nicholson 316 M'Lachlan v. Lord 440 Maclean's Trusts, Me 65 Maclean v. Dawson 346 M'Leod V. Buchanan 462 M'Murray v. Spioer , 68 M'Phail, Ex parte 321 M'Eae, Re 343 PAGE Macrae v. Smith *66 M'Veagh, Me 103, 387 Maddeford v. Austwiok 4 Maddy v. Hale 3* Madgwiok, Re 486 Madras Irrigation Co., Re. . . .465, 514 Magdalen College, Re 30 Magnay v. Davidson 346 Maidstone Ry., Ex parte 31, 486 Mainwaring, Re 66, 82 Mais, Me 80 Maggi, Me, Winehouse v. Wine- house 280,281 Maioohn v. O'OaUaghan 472 Malet, Me 58 Malins v. Price 549 Manby v. Bewicke (1) (8 De G. M. & G. 468) 541 (2) (8 De G. M. &G. 470).. 387 (3) (8 De G. M. &G. 476).. 388 (27 L. T. 0. S. 55).. 387 Manchester Building Society, Me 610, 576 Burial Board, Ex parte 4 1 (Dean & Canons of), Ex parte 43 & Milford Ey., Me . . 50, 169, 173 &o. Ry. V. Brooks .... 355 & Southport Ry. Co., Me 28, 45 Ry., Me 468 Mandeno v. Mandeno 474 Mander, Me 5 Manisty v. Kenealy 354 Mann v. Perry 455 Manners v. Eurze 472 Manning, Me 66 V. Glyn 4 Mansel, Me 152, 513, 616 ManseU, Ex parte 472 V. Feeney 388, 391, 392 Mansergh :;. Rimell 309, 330 Mansfield v. Childerhouse 385 Mant V. Smith 4 Mapleson v. Masini 542 March, Me 193 Marfell v. Rudge 475 Markham, Me 510 Marks' Trust, Me 40 Marlborough (Duke of), Me .... 33 Marman, Re 339 Mamer, Re 42, 66, 69 Marriage, Me 36 Marriott, Me 81, 361 V. Ajichor, &o. Co 382 Marris v. Ingram .... 188, 189, 272 Marrow, Me 88 Marsh ». Att. -Gen 103 V. Keith 372, 383 Marshall, Ex parte (1 Ph. 560). .38, 39 (3 De G. & Sm. 679) 84 ■ Re 499 V. Berridge , 512 Martano v. Mann 542 Martin, Me, Dier v. Martin 506 TABLE OB" OASES. xliii PAGE Mai-tin, He, Hunt v. Chambers . . 411, 412, 510 (22 L. J. Ch. 248) . . 477 V. JBaimister 275 V. Earl Beauohamp .... 374 V. Frost 378 V. Gale 396 V. Hadlow , 474 V. L. C. & D. Ry. Co. 48 V. Whitmore 341 Martinez, Se 79 Martyn, Se 81 Matylebone Improvement Act, Se 28, 38, 39 Maryport & Carlisle Ey. Co., Se 39 Mash, Se 12, 13, 15 Mason, Se 29, 41, 56, 65, 66, 337, 383 V. FranHin 336 V. Bogg 280 V. Brentrni 540 Maaselin, Se 58 Massey, Se , 10 V. AJlen 542 and Carey, Se 8 Massie ». Drake 13 Masters v. Barnes 334 Mather v. Skehnerdine 342 Mathias v. Tetts 334 Matthew v. Northern Assnr. Co. 32 Matthews v. Antrobus 373 Se (26 Beav. 463 ; 5 Jur. N. S. 184) 79 (2 "W. E. 85) 64, 84 — : V. Pa.lmer 466 Mavor v. Dry 379, 556 Maj, JEx parte 281 Se 15 V. Biggenden 9 V. Dowse 486 V. Frinsep 433 V. Thompson 266 Maybery v. Brooking 344 Mayer v. Murray 397 Mayes v. Mayes 440 V. Spence 428 Maynard, Se 84 Mayne v. Butter 435 Meacham v. Cooper 399, 427 Mead v. Lord Orrery 472 Meaden v. Sealey 469 Meek v. Michaelsen 317 V. Ward 436 Meinertzhagen v. Davis 397 Melhuish t: Milton 467 Melling v. Bird 30, 42, 43 MeUor, Sc 196 21. Porter , 78 V: Sidebottom 396 V. Swire 343 Mel ward, ^:i;^arfe 29 Mem 6, 380, 440, 463, 478, 512, 615, 559 Mendelssohn v. Hoppe 544 Mendes v. Giiedalla 336, 347 Mennard v. Welford 80 . Mercer v. Lawrence 451 Mercers' Co., Ex parte ....38, 39, 539 : V. Great Northern Ey 438 ]?AaE Merchant Tailors' Co., Se 41 Merry v. Niokalls 518 Merryweather, Se 53 Mersey Steamship Co. !). Shuttle - worth 396 Steel Co. v. Naylor 280 Mertens v. Haigh 388, 390 -Merton College, Re 39 MetcaUe, Se (2 De G. J. & S. 122) 55 {3 N. E. 657) 55 (13 0h. D. 236) .... 499 (30 Beav. 406) .... 8 MetcaHe's Case 189 Metropolitan Asylum District v. •Hill 266 Board of Works v. New River Co. .. 401 Inner Circle Ey. v. Metropolitan Ey. . 463 Ey., Ex parte .... 42 and Cosh, Se .. 108 Co. and Maire, Se 43 Mette, Se 34 Metzler v. Wood 418 Mexico (Bank of) v. Hart 423 Meymott v. Meymott 557 Meyrick, Se 71 V. James 441 V. Lang 481 Michel, Se 103 Michell, Se 516 Mickelthwaite v. Fletcher 188 Middle Level Draiaage and Navi- gation Commissioners, Se .... 42 Middleton v. Chichester .... 188, 189 Midland Counties Ry. v. Caldecott 45 V. Westoomb 45 Ry. JJe 42 Co. w. Oswin 28 Waggon Co. v. The Pot- teries, &c. Co -. 168 Milan Co., Se 280 Mildmay v. Methuen (Lord) .... 494 V. Quicke 182, 183, 462, 548 Mildred v. Austin 178 MUes V. Jarvis 180, 347, 474 Millard v. Baddeley 331 V. Burroughes 552 MiUar, Se 68 Miller, Se 653 V. Hales 541, 543 V. Huddlestone 352, 454 V. Marriott 183 V. Miller 402, 454 V. Mynn 456 MiUington v. Fox 639 Mills, i2e 491 V. Griffiths 337 V. Jennings 335 MiUtown (Lord) v. Stuart 440 Mihie, Se 30 Milnes, Se 28, 41 Milton, Se 266 Minchin, Se 71, 86 Minet v. Morgan 382, 387 Mirehouse v. Bamett 411 Mitchell, -Be 485 V. Bailey 336 xliv TABLE OF CASES. PAGE Mitchell t>. Cobb 56 1). Condy 511 ». Barley Co 266 V. Lee 456 Moate, Me 68, 487 Mobbs, Ex parte 5 Mockett, So 103 MoUoy r. Kilby 382 Molynenx, Be 78 Money, Se (13 Beav. 109) .... 59, 341 (2 Dr. & Sm. 94) ... . 34 Moneypenny v. ■ 378 Monoban, Se S3 Montefiore v. Guedalla 369 Montefiori v. Browne 600 MonteUano, (Duke de) v. Cbristin 642 V. MuUigan 193 Monypenny r. Monypenny 518 Moone ff. Rose 189 Moor V. Anglo-Italian Bank .... 280 Moore, He, M 'Alpine v. Moore. . 64, 81 V. Cantley 326 V. Morris 345 V. Platel 326 V. Smith 563 V. Walter 380 Morant, He 60 Moravian Society, He 80 Mordannt v. Benwell 182 Morecroft v. Evans 516, 517 Morey v. Vandenburg 440 Morgan, He (24 Ch. D. 114) .... 163 (2'W. K. 439) ....57,59 . (Seton, 516) 91 . V. EMord 518 V. G-reatrex 470 V. Higgins 4, 398 V. Morgan 545 V. Kuddook 4 V. Swansea Sanitary Authority l07 Morgan Jones, Me 40 Morley v. Clavering 445 V. Morley 428 Momington v. Momingtou 383 Morres v. Hodges 34 Morrice v. Aylmer 64 Morris, iie (27 L. T. 554) 10 (20Eq. 470) 32,42 V. Erancis 18 V. LlaneUy Ey. Co 494 V. Morris 430 Morrison v. Arnold 430 V. Morrison 188 Morse, Be 58 Mortimer, Be 558 v. Mortimer 346 V. Picton 369 Mortimore v. Cragg 449 V. Mortimore 403 Morton v. Miller 357 Moscow (City of) Gas Co. v. Inter- national Knanoe Co 542 Mosely, Be 9 Mosley, Bi 54 Moss, Be 4, 7, 10 V. Bradburn 411 Mostyn v. West Mostyn Co 255, 264, 355 PAOB Mounsey v. Burnham 379, 556 1 1,. Lonsdale (Earl of) .. 478 Mount, Be ^1 Mountain v. Toung 64 Moxham, M., The 42o Mozley v. Cowie 418 Muggeridge, Be 102, 103 Muloaster, Be. 393 Mullows V. Bannister 317 Mundel, Be 64, 66, 70 Munns, Be *85 Munro, Sx parte. Be Lewis .... 20 Munroe v. Wivenhoe, &o. Ky. Co. 439 Munster v. Kailton 324, 448 Munton, Be f ^ Murphy v. Nolan 548, 552 V. Vincent 08 Murray, Be 103, 281 . '■ V. Barlee 5 V. Simpson 456 V. Walter 388 MurreU v. Clapham 338 Murrow v. Wilson 5 MuBgrave, Be 31 V. Sandeman 120 11. Stevens 353 Mutlow, iS« 47, 48 V. Mutlow 55 Mutual Society, Be 387 V. Langley 462 N. Nadin, Bx parte 34 ». Bassett 423 Naersnoss Shipping v. Royal Mail Co 516 Nagle-Giilman v. Christopher . . 412 Nalder «. Hawkins 338 Nalty v. Aylett 189 Napton (Overseers oi), Be 5 Nash, JJe 42,67, 81, 88 V. Coombs 29 V. Dickenson 449 V. Nash 31 Nason v. Clamp 428 National Provincial Bank v. Evans 358 376 V. Harle 269 National, &o.. Association (Official Manager) v. Carstairs 427 Fimds Assurance Co., Be 388 465, 513, 614 Navan Railway, Be 47 Naylor, Be 59 V. Farrer 364 Neate, Be (10 Beav. 181) .... 10, 13 (10 Beav. 57) 13 V. Pink 469 Neath & Brecon Rly., Be 38, 48 Hx parte ,, 48 (Vale of) Ely., Be 30 Needham v. Needham 445 V. Smith 326, 338 Neil, Be 188 Nelson, Exparte 280, 454 f. Booth 397, 398 TABLE OF CASES. xlv PAQE New Britisli Co. v. Peed 387 New Callao, Me 434, 510, 516 New "Westminster Brewery Co. v. Hannah 337, 422 Newall c. Telegraph Co 382, 387 Newbery, Se 98 Newbiggin Gas Co. r. Armstrong 260 306, 311 Newbury v. Marten 78, 544 Newby v. Harrison 373 V. Sharpe 378 «■. VonOppen 319 Newcastle (Duke of), Se 142, 152, 154, 177, 179 Newoomen v. Coulson , . . . . 373 Newellj'.NationalProvinoialBank 355 Newen v. Wetten 398 Newland v. Steer 387 V. Steere 429 Newman, JJ« (30 Beav. 196) 7 (2 Ch. 707;.. 10, 12, 13 r. SeMe 327 TfewtOTi, £x parte '. 29, 43 V. Boodle 13, 558 V. Bimes 386 r. Metropolitan Ely 28 r. Hicketta 5, 188 V. Sherry 102 Nicholas r. Draoachis 467 NichoU, JJe 41,42,74 Nicholls, Se 43 Nichols V. Evens 365, 367 Nicholson, £e 6, 7, 8 w. Squire 188 NicoU V. Jones 382, 387 Niooll's Estate, iJe 33 Niemann v. Harris 438 Nightingale v. Lawson 399 Nixon V. Sheldon 516 Nobel's Co. V. Jones 378 Noble «>. Edwardes 259 Nock ». Nock 38 Noel V. Noel 387 Nokes V. Gibbon 424 r. Warton 13 Norcop, Se 30 Nordou V. Defries 382 Norfolk Clergy, Governors of, iic parte 30 Norfolk's Estates (Duke of), Se. . 44 Norman, Se 542 V. Johnson 372, 639 Normanton Iron Co., lie 516 Normanville v. Stanning 428 Norris, He 80, 103 V. Beazley 337 North V. Huber 388, 389 London Ely. Co., iJ« 37 Northampton Coal Co. v. Midland Waggon Co 267,542 Northern Insurance Co., Me .... 280 North London Co. t". Jacques .... 113 Ely. V. GreatNorth- emEly 468 Northrop.iife 81 Northumberland (Duke of) i;. Todd 438 Northwiok, Hx parte 28 Norton v. Compton 512, 515 v. Gould 469 PAOE Norton v. Gover 306 V. L. & N. W. Ely. Co. . . 513 Norway v. Norway 88 Notice 437, 614 Nott v. Sands 461, 456 Nowell, Me 445, 462 ■». Whittaker 341 Nugent, Me 115 V. Vetzera 98 Nurse v. Dumf ord 260, 306, 3 U Oakden, JJ« 88 Oakham School, Me 43 OakweU Collieries, Me , . 513 O'Brien v. Lewis 4 V. Maitland 327 «>. Tyseen 371 O'Donnell,' iSe 91 Ogden V. Battams 398 Ogle V. Brandling 412 Ohlsen v. Terrero 426 Oldfield V. Cobbett 341, 479 Oldham, Me 33 V. Stringer 116 Olivant v. Wright 612 OUve, Me 96, 604 Oliver, Me 8 O'Meara v. Stone 384 Ommauey, JEx parte 88 O'Nen V. Clason 318 Ongley v. Hill 423 Onslow, Me 469 Ord, Me 65 Orde, Me 81, 93, 436 Orger v. Sparke 78 Oriental Bank, Me 280 Original Hartlepool Co. v. Gibb . 370 Ormerod, Me 66, 72 V. Todmordeu Co 268 Ormsby, Me 472 Orr, Ewing & Co. {>. Johnston & Co 549 Orrell Colliery Co., Me 374 Ortner v. Eitzgibbon 330 Osbaldiston, Bx parte 43 Osbom, Me 64, 69 V. Osbom 183 Osborne, Me 6, 8 to Eowlett 108 Otto V. Lindford 617, 318 Outwin, Me 83, 192 Overington v. Ward 469 Oweu, Me 65 V. Henshaw 16 V. Homan 469 V. Pritchard 455 V. Wynn 383 Oxford, &o. Ely., JJe 41 xlvi TABLE OF CASES. P. PAQE Packman and Mobs, Se 108 Paddon, iie 41 V. Winch 382, 658 Padgett V. Binna 396 Padley v. Camphausen 272 Padstow Association, He 516 Padwick v. Scott 354, 355, 364 Page, Se 8 V. Ward 383 Painter, Ex parte 88 Palairet v. Carew 88 Palermo, The 382 Palmer, Ex parte 44 Re (W. N. (1873), 101) . . 63 V. Hoyer 404 V. Gould's Co 319, 321 V. Jones 338 i>. Locke 461 i\ Waleshy 339 Palmerston (Lord), Ex parte 43 Panton v. Lahertouche 542 Papayanni v. Contpas 331 Paradice v. Sheppard 341 Parby, Re 78 Pare v. Clegg 335 Pares, Re 182, 186 Farke Me 81 Parker, Re (13 Eq.' 495) ".'.".'.28] '29, 40 (2W. 11.139) 57 (32 Beav. 580) 80, 84 ». Trigg 181 *■. Wells 382, 385, 392 Parkinson v. Chambers 341 . V. Hanbury . . 341, 342, 551 V. Lucas 400 Parpaite v. Dickenson 309 Parr v. Lovegrove 505 Parrot v. Pawlet 271 Parrott, Re 81 Parry, Re (6 Hare, 306 ; 12 Jnr. 721) 64 (12Jur.615) 56 (W. N. (1884), 43) 149, 153 Parsons v. Burton 371 ■„. Harris ' 329, 396 V. Grroome 462 Partington, Re 29 ■ V. Reynolds 397 Pascoe V. Bichards 396 Pashler «. Vincent 188 Pasmore, Re 5 Patch V. Ward 384 Patching ». Bull Ill Paterson v. Paterson (10 L. T. 183) 41 (2 Eq. 31) 76, 81 Patey v. Flint 329 Patman v. Harland 106 Patterson v. Wooler 422 Pattison, Re 42, 43 Paull, JBe 9 Paxton i>. Bell 542 Payne, Ex parte 512 V. Parker 335 Peace, Re 177 and Waller, Be 6 Peach, Re 7 Peacock, Re 75 PAOE Peacock v. Harper 440 Pearce, Re 31 V. Lindsay 559 Peareth v. Marriott 97 Pearse v. Pearse 382 Pearson, Re 65 V. Wilcox 433 Peatfield ». Barlow 17 Pedley's Estate, Re 31 Peek V. Trinsmaran Iron Co 469 Peers, Re 9 Pegg V. Wisden 476 Peile, Re 9 «. Stoddart 384 Peillow V. Brookings 369 PeUas V. Neptune Insurance Co. . 355 Pelling V. Groddard 58 PeUy V. Wathen 17 Pemberton, Ex parte 14 W.Barnes 180, 181 Pender, JJe (2 Ph. 69) 7 (8 Beav. 299) 3,9 (10 Beav. 390) '5 Penley v. Anstruther 5 Penn v. Bibbey 518 Pennell v. Earl of Dysart 372 V. Millar 380, 506 Penney v. Goode 389 Pennington v. Dalbiac 181 Penny v. Penny 34 Penrice v. WUliama 380 Pepper, Re 318, 327, 490 Peppitt, Re 342 Perkins, Re 5, 6 V. Beresford 266 Perks, Re 37 V. GiUott 560 V. Mylrea 193 Perry, Re 37, 53, 54, 57, 61 V. Knott 334 J). Walker 341,342 Peru (Eepublio of) ». Weguelin. . 385, 391, 517 Peruvian Co. i;. Bockwoldt 257 Petat V. Lailey 411 Peter t). Thomas-Peter 352 Peters v. Bacon 183 Pett's Will, Re 103 Peyton, Re (25 Beav. 317 ; 2 De G. & J. 290 ; 4 Jur. N.S. 370, 469), 66, 73, 74 (7 Eq. 463) 103 V. Harting 386 Peyton's Settlement, Re (10 W. R. 515) 103 Phelps, Re 57 V. OUve 388 Pheysey v. Pheysey 515, 516 Philby V. Hazle (7 Jur. N. S. 125) 7 (8 C. B. N. S. 647) 5 Philipps ». Philipps 356, 556 PhiUps t!. Beale 263,- 411, 413 PhUlipine, The -IB Phillpotts, JJe 12 Phillips, Ex parte 42, 45 Re (6Eq. 250) 34 (W. N. (1882), 134) . 55 (4 Ch. 629) 88 (Cr. & Ph. 147) 65 TABLE OF CASES. xlvii PAGE Phillips V. Gibbons 380 V. Holmer 383 V. Homfray 330, 350 V. Llanover, Llanover r. Homfray 265, 430 V. PhUIips 341, 387 V. Prentice 436 V. Warde 440 Philp, Jf« 7 Phipps V. Daubuey 4, 5 Phoenix Steel Co., Re 280 Phosphate Sewage Co. v. Hart- mont 188, 189 Phospho Guano Co. v. Guild .... 322 Photographic Artists' Association, Se 517 Pioard v. Mitchell 41 Picasso V. Maryport Harbour (Trustees of) 549 Pick, Re 40, 43 Pickance, Re 84 Pickard v. G. N. Rly. Co. ■ 467 Pickering, Re ." 391 Pickett V. Logon 374 Picton, Re 41 Piercy v. Young 413 Piersou v. Knutsford Estates Co. 18 Piffard v. Vanrenen 466 Kgott and S. W. Rly., Re 108 Pike V. Keene 338, 392 V. Robinson 427 Pilcher, Re 538 V. Arden 17, 18 V.Hinds 353 Pilgrim v. Hirsehfeld 5 Pilley V. Baylis 411 Pilling, iJ« 117 Pinee v. Seattle 7 Pincke, Ex parte , . 469 Pinkerton v. Easton 18 Pinney v. Hunt 252, 264 Pinnook v. Bailey 462 Piper V. Piper 455 Pitt, Re 78 V. Brewster , 334 V. Jones 180 Pitts, Re 121 Plant V. Kendrick 389 Piatt V. Mendel 376 V. Walter 464 Pledge V. Boss 379, 656 Plestow V. Johnson 642 Plimpton V. Malcolmson 614 Plomer v. Macdonough 188 Plomley, Re 98 Plumer v. Gregory 334 Plumley v. Horrell 382 Plyer, Re 69 Pole V. Pole 33 Polini V. Gray, Sturla v. Erecoia . 517 Pollack V. Birmingham Ely 30 Pollock V. Rabbits 497 Pommerania, The 373 Ponsford v. Swayne 382 Ponsonby v. Hartley 387 Pontif ex v. Foord 348 Poole V. Gould 316 Pooley V. Bosanquet 413 V. Driver 401 PAOE Pooley's Trustee v. Whetham . . 542 Poplar School, Re 51, 58 Popple and Barratt, Re 108 Portadown, Ex parte 29 . Portarlington v. Damer 518 Porter, Re (3 W. R. 583) 66 (2 Jur. N. S. 349) ... .79, 81 V. Lopes 181, 183 V. West 16, 18, 464 Potter, Re 97 V. Cotton 515, 517 Potteries, Shrewsbury and North Wales Rly. Co., Re 171, 172 Potts, Re 489 V. Leighton 472 PoweU, Re (4 K. & J. 338) 65 V. Jewesbury 257, 379 V. Matthews 68 V. Oakley 96 V. PoweU 183, 492 V. Williams 411 Power, Re 39 Powlett (Earl) v. Hood 103 Powys V. Blagrove 469 Practice (W. N. (1884), 91) 265 Pratt V. Walker 478 Presoott B. Wood 38 Press and Inskip, Re 10 Prestuey v. Colchester (Corpora- tion of) 391 Preston v. Dania 330, 366 V. Dickinson 322 V. Lamont 321 Price, Re 72, 75, 79, 164, 369 V. Berrington 336 V. Hutchison 188 V. Salisbury 518 Prideaux, Ex parte 4 Priestman v. Thomas 252, 264 Primrose, Re 88 Prince v. Cooper 474 V. Hiue 548 V. Howard 380 Pi-ince of Wales, &o., Co. ». Palmer 347 Pring, Re 88 Pringle v. Gloag 557 Printing Co., JJ« 280 Prioleau v. United States 385 Pritohard v. Roberts 16, 18 Prole V. Soady 427 Protector Co. ». Whitlam 452 Prothero v. Thomas 8 Prowse V. Spurgin 500, 506 Pryor, Re 41, 43 V. Pryor 180 Pryse, Re 84 V. Pryse 406 Pugh, Re (17 Beav. 336) 5 (32 Beav. 173 ; 1 De G. J. &S. 673) ....7, 12, 14 Pullen, Ex parte 9 Pumfrey, Ex pmte 41 PuTcell V. Manning 606 Puttrell, Re 68 Pyman v. Burt , . . , , , , 449 xlviii TABLE OF CASES. Q. FAGB Quartz Hill Co., Re 427 V. Eyre 540 Queade, Re 193 Queen Camel (Vioar of), Be 29, 40 Queen's College, Ex parte 28, 59 Quilter, Ex parte 8 ». Heatly 389,391 1). Mapleaon 113 Quin 4). Ratolifl 383, 387 E. Babbits v. Woodward 453 Eadcliffe, Re 260 Rafael «. Ongley 317 Raggett, Re 115 Railston, Ex parte 39 Ralli V, XTniversal Assurance Co. 617 Ralph V, Carrick 512 Ramabotham ». Senior 383 Ranoe, Re 12 Randall, Re 73 Randfield ». Randfield 469 Ranelagh, Re 34 Ranking, Re 347 Ransom, Re 7 Ranson v. Patton 352 Raphael, Re 79 Rasbotham v. Shropshire Union Co 385 Rathbone, Re 66, 70, 79, 82 Raven, Re 20 Rawley v. Rawley 365 Rawlins v. McMahon 345 V. Wiokham 423 RawUnson t. MiUer 183 . 1>. Moss 17, 549 Ray, ij« 150,155 ». Barker 330, 331, 332 Raymond v. Lakeman 10 V. Tapson 427 Reading v. Hamilton 40 Real and Personal Advance Co. v. McCarthy 373, 374 Reaston, Re 30 Record and Writ Clerks, Re .... 434 Reddish, Ex parte 612 Redgrave v. Hurd 260 Eedondo v. Chaytor 641 Reece v. Taylor .• 469 Reed v. Don Pedro Mining Co. . . 397 V. Prest 335 Eees, Re 10, 344 ». Brailley 317 i>. Metpn. Bd. of Works 399 v. Williams 7, 21 Reeve v. Reeve 606 Reg. V. Boyes 426 i>.' Cheshunt Local Board . . 372 V. Eastwood 9 V. Keyn 321 ». L. C. & D. Ry. Co 558 V, Nash 98 PAQB Reg. V. Pratt i 188 Rehden v. Wesley r 427 Eehoboth Chapel, Re 29 Reid V. Langlois 889 ReiEy v. ReiUy 101 Reinell v. Simpson 52 Remnant, Re 8 V. Hood 548 Eenshaw, Re '. 80 V. Renshaw 367 Eeynault, Re 81 Reynolds, Re 30 V. Caswell 5 V. Godlee 383, 389 Rhodes, Re 46 V. Rhodes 505 Rhys V. Dare Valley Ry r 47 Richards, Ex parte (1 J. & W. 264) 88 Ji!«(8Ect 119) 64 (5 De G. & Sm. 636) 83, 84 (11 Ch. D. 676) .... 280 V. Culleme 275 V. Curlewis 440 V, Kitchen 465 V. Scarborough Market Co ,.... 315 Richardson v. Elmit 466 V. Grubb 88 V. Hastings 389 V. Leake 308 Ridgway v. Edwards 341 Ridley v. Ridley 428 V. Sutton 549 • V. Tiplady 400 Ridsdale, AUanlee v. Great W. Ry.Co 317 Rigg, J2« 492 Rimington v. Hartley 186 Rio Grande Do Siil Steamship Co., Re 266 Rives V. Rives 91 Robarts v. Ba^e 553 Roberts, Re (9 W. R. 758) 81 (17 W. R. 639) ... .54, 55 (7 Jur. N. S. 818) . . 30 ». Albert Bridge Co. . . 188 V. Ball 52, 69 V. Death 457 V. Lucas 4, 5 ■ V. Oppenheim .... 384, 390 Robertson, Re 55 V. Wrexham Ry. Co. 171, 173 Robey v. Whitewood 544 Robins, Re 30 V. Goldingham 9, 17 V. Mills 6 Robinson, Re (L. R. 3 Ex. 4) . . . . 7 ■- (11 W. R. 1035) . . 64 (W.N. (1873), 28 380 's Trust, Re 54 = V. Aston 544 : V. Barton (Local Board for) 380 V. Budgett 387 V. Chadwiuk 373, 417 ■■^- «. Drakes 512 1\ Nesbitt 459^ TABLE OF CASES. xlix FAQB Bobiuson v. Eobinson 420 V. Trevor 107 ■ V. "Webster 388 Bobson V. Dodda 188 V. night 383 Roe V. Davies 377 V. Hammond 449 Boebuok v. Chadebet 180 Eoffey V. Miller 351 Rogers v. Hooper 341 V. Jones 263, 346 V. Mort 493 Eolfe V. Maolareu 365, 396 Rolle's Charities, Be 79 Eomilly v. Grint 342 Romney, Jte 42 Rooney v. Whiteley 420 Roskell, iS« 81 Ross, Me 54, 55, 61 V. Ashwin 545 V. Gibbs 383 V. Laughton ....^ 17 Rotherham v. Priest 331 (Mayor of) v. Peace. . 408 Roughton V. Gibson 181 Rourke ». White Moss CoUieiy Co. 616 Routh V. Tomlinson 493 Rowcliffe V. Leigh 268, 385, 392 Eowe V. Gray 181 Rowlands v. Evans 345, 347 Eowley, Se 88 V. Burgess 470 Eowsell V. Morris 343, 345 Royal Society and Thompson .... 108 Royle, £e 308 Rubery v. Grant 360 Eucker v. Soholefield 346 Eudge V. "Weedon 59 Eudyerd, Se 29 Eumbold v. Forteath (3 Kay & J. 44) ... . 383, 387 (4Jm-.N.S. 608 478 Enmsey v. Erausey 476, 551 V. Eeade 396 Eannacles v. Mesquita 331 Eush, Se (9 Eq. 147 ; 18 "W. R. 331) 189, 455 (lOEq.442) 178 EusseU, Se (12 Jur. N. S. 224) . . 78 (1 Sim. N. S. 404) . . 74 V. NichoUs 548 V. Shenton 36 V. Tapping 446 Eustomjee ». Eeg 201 Euston V. Tobin 333, 411 Rutter V. Marriott 475 V. Tregent 369, 396 Ruttledge f . Whelan 113 Ryalls V. Eeg 4 Eyan, JJe 73,465 Eymer v. De Eosaz 549 S. St. Aubyn v. Smart 334 St. Bartholomew' 8 Hospital {Ttus- tees oi), Mx parte 41 PAQB St. Giles' Volunteer Corps, Se ,. 51 St. James' (Rector of), Ex parte.. 43 St. John's Coll., Ex parte. .Zl, 49, 369 St. Katharine (Hospital of), Ex parte 39, 40, 41, 639 St. Katharine's Dock Co., Se . .39, 41 St. Luke's (Vestry of), Se 30 St. Margaret (Prebend of), Se .. 42 St. Martin (De) v. Davis 541 St. Martin's, Birmingham (Rector of). Ex parte 31 St. Mary's (Vicar of), Ex parte . . 31 St. Nazaire Co., Se 253, 510 St. Olaf , The 373 St. Pauoras Burial Ground, Se .31, 37 St. Paul's (Dean of). Ex parte (U "W. R. 482) . 34 (18 "W. R. 724 ; W. N. (1870) 93) 445 St. Paul's Schools, Se 43 (Precentor of), Ex parte. 34 St. Sepulchre's (Vicar of), Ex parte 38 St. Thomas' Church, Bristol (Trua- - tees of), Ex parte . 34 Hospital, Be 29 (Governors of). Ex parte 39 St. Victor V. Devereux 341, 342 Sabin v. Heape 403 SafBery, Ex parte 514, 516, 537 Salisbury (Marquis of). Be 108 Sahu Kyrburg v. Posnanski, , 265, 455 Salomon v. Stalman 433 Salt V. Cooper 177, 252, 257 Saltaah (Corporation o^ v. Good- man 517 Salvidge v. Tutton 433 Salway v. Salway 472 Sampson, Se 96 V. Seaton Rly. Co 457 Sams V. Cronin 97 Sanders v. Homer 91 V. Sanders 511 Sandford v. Sandford 326 Saner v. BUton 540 Sansom v. Sansom 454 Sargant v. Read 469 Sargent v. Gannon , 6 Saull V. Browne 387, 392 Saumarez, Se 84 Saunders v. Jones 385, 392 D. Richardson 518 V. Walter 492 Savage, Se , 85 V. Snell 402 J),. Tyers 405 Sawyer, Ex parte 549 V. Sawyer 350 Sawston (Vicar of), .Es^jaj-Ze .... 40 Saxby v. Gloucester Wagon Co. . . 268 Saxton V. Bartley 180 Sayer v. Wagstaff 7, 12, 13, 14 Sayers v. Corrie 463 Saywood v. Cross 544 Schneider v. Batt 350 Schofield, Be 89 Soholefield©. Lockwood ..16, 18, 399 Sohrceder v. Central Bank 259 Scorfield v. Jones 553 TABLE OF CASES. PASE Scott ,i>. Fleming ,, 17 Sootti). Hereoh 79 ». Lord Hastings 459 V. Matthew Brown & Co. . . 113 V. Mayor of Liverpool 440 V. Eoyal Wax Caudle Co. . . 321 Soriyen, Se 435 Scrirener v. Smith 56 Scully V. Dundonald 257 Seagram i>. Tuck 472 Searle v. Cheat 469 V. Matthews 509 Seaton v. Grant 271 Sedgwick J). Thomas 120 Seear v. Lawson 337, 351, 352 V. Webb 440 Seilaz v. Hanson 641 Seligmann v. Young 357 Senior ». Hereford 183 Severance i>. Civil Service Associa- tion 192 Sewart, Jie 40 Sewell, Be 34 Shaokell, Me 12 Shakespeare Walk School, He.. ., 43 Shapoott V. Chappell 442 Shapland, Be 454 Sharp V. Lush 344, 347, 499 V. Wright 648, 652 Sharpe, Se 55, 58, 59, 465 Shaiyley, Me 83, 84 Sharshaw ». Gibbs 57 Shaw, Ex parte 29 J?« (20L. J., Q. B. 280).. 9 (12 Eq. 124 103 ' V. Brown < . 464 1!. Hardingham 336 V. Jersey (Earl of) 468 ■ V. Johnson 548 V. Rhodes 472 Shearman v. Eindlay 322 Sheffield (Corporation of), Mx parte 28, 40 (Town Trustees of), Ex parte 40 •D.Sheffield 510 Shelford v. Louth Ely 330 Shelmerdine, Me 80 Shepard v. Jones 399 Shepherd v. ChurohUl 72, 78 ■ V. Stone 317 Sheppard, Me , S3 Sherard, Me 66, 67 Sherratt v. Bentley 88 Sherwin v. Selkirk 280 Sheward ». Lonsdale (Lord) .... 385 ShUlito V. Child & Co 317, 318 Shipperdson, Me 81 Shippey v. Grey 18, 467 Shipton-under-Wyohwood (Rec- tor of). Ex parte 29 Shoetensaok v. Price 813 Shrewsbury (Earl of) v . North Staf- fordshire Ely. Co. . . 33 : V. Trappes . . 518 Shubrook v. Tufnell 515 Shurmer v. Hodge 321 Shuttleworth, Ho 39 Sickles V. Morris 514 PAGE Sidebotham v. Watson 402 Sidebottom v. Sidebottom 463 Sidney v. Wilmer 41 Silver »., Stein 345 1). Udall 183 VaUey Mines, Me 266 Simmonds «;. G. E. E. Co 17 Simtnons v. Storer 557 Simqns v. Bagnell 400 Simpson, J?c. 5, 6 V. Brown 382 V. Denny 183, 335 V. Eitchie 183 Simson, Me 103 Singer v. Audsley 427 ■ Co. V. Lopg 411, 550, 552 Singleton, Me 44 ,^. Hopkins 68 Skegg, Me , 28 Skiuper v. Great Northern Eail- way 382 Skitter, JSe 64, 68 Skynner v. PeUohet 85, 91 Sladden, J2e 13 Slade, Me 317 V. Hulme 454 Sleight V. Lawson 398 Sloman v. Governor of New Zea- land 317, 319 Sloper, Me 83, 84 Smirthwaite, Ee 81,83 Smith, Ex parte (6 Ely. Cas. 150) 42 (22 W. E. 294) . . 96 iJ^ (9 Eq. 178) 31,40 (9 Eq. 374) 66 (4 Beav. 309) 6, 6 (9 Beav. 342) 8 (3 Jur. N. S. 659) .... 59 (W. N. (1872) 134 ; 20 W. E. 695) ....81, 103 (9 W. E. 396) 17 (IP. D. 300) 321 Hutchinson ». Ward.. 406 & Stott, Me 123 Oompton, Me 479 V. Andrews 335 41. Armitage 397 V. Armstrong 606 ■ B. Baker 666 V. Barnes 384 V. Bell 409 V. Boucher 68 ■ V. British, &o. Association 360 V. BuUer 548, 555, 668 V. Chadwick 549 ■ V. Comfoot 641 V. CoweU 177, 468 V. Daniell 382, 651 V. Davies 435 V. Day 468, 546 V. Dimes 8 V. Dixon 378, 479 V. Dobbin 311 ». Grindley 513 v. Guy 400 4). Marshall 318 V. Morgan 280 V. Nelson 475 TABLE OF CASES. U PAOE Smith V. Nth. StafBorduhire Ely. Oo 411 V. Pawson 341 II. Pilgrim , 440 V. Reed 393 V. Richardson . . 333, 353, 354 V. Robinson 100 i: Smith (3 Drew. 72 ; 18 Jut. 1047) . . 69 (1 Dr. & Sm. 384) 101 (7 P. D. 227) . . 542 r. Swansea Dock Co 439 V. Watts 347 V. WegueUn 317 V. "Went 393 V. Whiohcord 465 ». White 516 V. Wilson 309 V. Winter 18 Smith's Leaseholds, Se ...,,... 30 Smyth, i:x parte 30 iJe(ll W. R. 850) 51 (4 De G. & ^ 499 ; 15 Jur. 644) 82, 92 (2 De G. & Sm. 781).. 83, 84 Sneary v. Ahdy 449 Snell, Se 566 Snow V. Bolton 454 Solicitor, £e A (26 Sol. J. 8) .... 513 (W. N. (1884) 217) 446 (14 Ch. D. 152 ; 28L.T. 310).. 455 (1 Ch. D. 446; 24W.R.103).. 455 Somerset & Dorset Rly., Se .... 173 Somerville, £x parte 46 Somes V. Martin 552 Soutar, JJ« 196, 200 South, Be 177 Essex Co., JJe 17 Wales R^., Sx parte 48 He 45,88 Western Bank v. Turner ... 116 Loan Co. ■!). Robert- son 459 Southwark Water Co. v. Quick. .382, 385 Southwell V. Scotter 259 Southwold Bill, Be 49 Sowry, Me 30 Sparks, iJc 87,88 Sparrow, Be 80 Spartali v. Van Hoorn 356 Spawforth, Be 74 Speckhart v. Campbell 321 Speer, Be 29 Speight, iJ« 512 Speller v. Bristol Navigation Co... 321, 348 Spencer (Earl) v. Peek 430 Be, Spencer v. Hart .... 40 V. Bryant 341 Spettigue, Be 543 Spioer,i2e 189 Spier V. Bernard 4 Spiller, JJe 103 . V. Paris Skating Rink Co.. 423 PAaB Spittle V. Walton 437 Spooner, Be 44, 46 Spradbery, j8e 107 Spratt's Patent v. Ward 411 Sproat V. Peckett 320, 538 Springall, Be 108, 423 Sprunt V. Pugh 451, 454 Spurstowe's Charity, Be 30 Staoe V. Gage 183, 335 Staoey v. Southey 470 Stafford E^., Be 173 V. Coxon 268 & Uttoxeter Rly., Be .... 168 StajSordshire Bank v. Weaver . . 539 Stahlschmidt v. WaKord 373 Stainbank «. Beckett 514 Staines Rly., Be 50 Stainton v. Carron Co 398 Standard Co. v. La Grange . . 330, 515 Discount Co. ■!>. Barton 464 Standering v. Hall 30, 182 Stanes v. Parker 13, 14 StangerLeathes«'.StangerLeathes447, 549 Stanhope Co., Be 456 Collieries Co., Be 280 Stanlake, iJ« 191 Stanley v. Stanley 460 Stannard v. Vestry of St. Giles . . 468 Stansfield v. Hobson 335 Stanton v. Baring 551 Staples, Ex parte 32, 42 Stebbing v. Atlee 493 Steed, Be 36 V. Preece 182 Steel V. Cobb 327 Steele, Ex parte 4, 17 Be 12 V. Scott 17 V. Stewart 382 Stening, Be 53, 212, 226 Stent V. Wiokens 386 Stephen, Be 5, 10, 1 3 Stephens, Be 206 V. Lord Newborough . . 549 jj. Wanklin 426 Sterry, Be 37 Steuart v. Gladstone 422, 423 Stevens, Ex parte (15 Jur. 243) , . 41 (2 Ph. 772) .... 48 i>. Mid-Hants Rly. Co. .. 173 v^ Newborough (Lord) , , 559 V. PheHps 456 Stevenson v. Abington 499 Steward, Be 34 Stewart, Be (1 Sm. & Gifl. 32) . . 28 ■ ■ (8 W. R. 297).. 65, 67, 80 (8 W. R. 425) 66 (2 De G., P. & J. 1) . . 73 V. England (Bank of) . . 307 V. Stewart 504, 541 Stigand v. Stigand 307 Stimpson v. Jepson 549 Stock, Ex parte 58 — ' Be 29 V. Hooper's Telegraph Works 516 Stookbridge Rly. BUI, Ex parte . . 50 Stockton Iron Co., Be 511, 515 cl2 Ui TABLE OF CASES. PAQE Stoer, Ee 430 Stokes, Re . ; 81 V. City Offices Co 494 ; — V. Trumper 6, 7 Stone V. Stone 91 V. Wishart 469 Stonor, Be 193, 200 Stooke V. Taylor 271, 356 Storey v. Waddle 463, 464 Straford, He 10, 11 Straight, Ex parte 380 Strathmore Estates, Ee 83 Street, Ee 7, 12 V. Crump 377 V. Grover 336 Strelley v. Pearson 467 Strickland v. Strickland 379, 556 Strong, Be 96, 97 V. Moore 344 V. Strong 59 Strother, iJe 6, 7, 8, 13 Stroud, Ee 76 V. Norman 68 Strousberg v. Costa Rica (Re- public of ) 319 Strugnell v. Balkis Co 426 V. StrugneU 182 Stuart, Be 88 V. Cookerell 461 V. Greenall 549 Stubbs, Ee 465 Studdert, Ex parte 28 Sturoh V. Young 478 Sturge, Ee 67 V. Dimsdale 558, 559 Sturla V. Erecoia, Polinii). Gray. .517, 542 Stutely, Etn parte 60 Styan, Ex parte 44 Suohe & Co., Ee 280 Sudlow, Bi 6 Suflolk V. Lawrence 488 Sullivan v. Eivington 268 Summerfield v. Pritehard 391 Summers, Be 280, 504 Sumner, Be 487 Sunderland (Ereemen and Stal- lingers of), Ex parte 36, 37 Surr V. Walinsley 425 Sutolifie V. James 365 Sutberland (Duke of) v. TunstaU Board.. 337 V. De Virenne .... 346, 347 Sutton, Ee 12, 62, 56, 269, 562 V. Jones 469 r V. Dickon 469 Swaine v. Denby 181 Swale V. Swale 463 Swallow V. Binns 346, 347, 404 Swan, Ee 64 V. Webb 474 Swanu ii. Barber 514 Swansea Building Society v. Davies 441 (Mayor of) v. Quirk 385 — Vale Ely. Co. v. Budd. . 391 Swanzy v. Swanzy 541 Swayne ». Swayne 461 FAQE Sweeper, Be 65 Swift -ii. Swift 98 Swindell v. Birmingham Syndi- cate 373,411,616 Swire, Be 466 Sykes^JJe 427 V. Brook 640 V. Dyson 190 V. Eirth 411 V. Hastings 469 V. Schofield . . . .180, 183, 406 Symons, Ee, Luke v. Tonkin .... 397 T., JJ« 103, 339 Taitt,iJ« 89 Talbot V. Eeay 566 V. Marshfield 383, 391 ». Talbot 338 Tamplin v. Miller 120 Tanfield v. Irvine 469 Tanner, Be 66 Tanqucray-Willaume, Be 108 Tanswell v. Scurrah 428 Tapp V. Jones 466, 457 Taprell v. Taylor 341 Tarbuck v. Tarbuck 8 V. Woodcock 648 TardiS v. Robinson 84 Tardrew v. HoweU 16 Tarn ». Commercial Banking Co.. 371 Tarrett v. Lloyd 346 Tasmanian Co. v. Clark 413 Tate, Ji!« '. 57 V. Hitehens 5 Tatham, Be 81 Tattersall -o. National Steamship Co 401 TaweU v. Slate Co 353 Tayleur, Be 430 Taylor, Be (4 Ch. D. 167 ; 25 W. R. 69) 98 (40 L. J. Ch. 454) .... 29 (1 Eq. 495) 400 (15 Beav. 145) 6 ■ (18 Beav. 165) 10 (1 M. & G-. 210) 41 (9 Hare, 596) 28 (W. N. (1866), 61 78 (31 W. R. 696 ; W. N. (1883), 95) 155 Tomlin v. Underhay . . 401 V. Ansley 327 V. Batten. 388 V. Collier 338 V. Directors of the Chi- chester Rly 33 V. Dowlen 266 4). Eckersley . . . ,468, 469, 472 ». Grange 181,611 V, Hodgson 4, 6 V. Keily -, 437 D, Midland Rly. Co 618 r. Milner 380 tablS of cases. liii PAGE Taylor v. Mostyn 497 V. Oliver 388 V. Pede 326 4'. Phillips 316 V. Poneia 167 V. Rmidell 387, 388, 389 Taylor's Case 516 Teague, Se 9 Teale v. Teale 465 Teall V. Watts 183 Teed v. Beere 505 Tees Bottle Co., ite 516 Teevau «. Smith 130 Tegg,JJe 56 Teign VaUey Ely. Co., Se .. 170, 171 Tempest, Jfe 80 V. Camoys (Lord) 491 «.Ord 469 Temple Church Lands, Bristol, Se , 41 Templer, Se 69 Temiant v. Trenchard 380 Tetley, Hx parte t 43 Thakeham Monies, Se 53 Than v. Smith 318 Tharp, In the goods of 257 Thatcher, Se 103, 122 Theys, ^x parte 259 Thistlethwaite v. Gamier 404 Thomas, Se 52 (12 W. K. 546) 42 (11 W. R. 276) 59 (22 L. J., Ch. 858) . . 88 ("W. N. (1882), 7 ; 30 W. R. 244) 30 V. Cross 4 V. Ellis 340 v. Griffith 499,505 V. Nokes 445 V. Palin 373, 555, 560 V. Parry 424 V. Patent lionite Co. . . 280 B. RawHngs (27 Beav. 140) 383 (27 Beav. 375) .... .386 V. The Queen .... 201, 387 V. Thomaa 326 V. Walker 87 V. Williams .... 141, 411, 468 Thompson, Ex parte (3 L. T. 317) 18 (W.N. (1884), 28) 120 iJe(14L. T.) 7 (8 Beav. 237) .... 13 V. Dunn 392 V. Jones 318, 327 V. Marshall 331 V. Partridge 440 ». Ringer 108 : 1;. Tomkins 66 V. Woodflne 413 Thomson, Se 79 J,, S. E. Ely 2S7, 465 Thorley's Cattle Food Co. v. Massam 549 Thorn V. Smith 318 Thome v. Seel 331 PAOE Thomhill v. Millbank 30 V. ThornhiU 469 Thomiley, Se 371 Thornton, Se 58, 78 . V. Finch 177 Thorold, Se 369 Thorp V. Holdsworth . . 358, 359, 396 V. Owen 484 B. Thorp 58 ThreUall v. Wilson 193 Thurgood, Se 7 Tibbs, Re 103 Tichbome v. Mostyn 188 Tid St. GUes' Charity (Trustees oi,Exparte 30 Tiel, Se 380 TifBu B. Parker 464 Tildesley v. Harper 333, 337, 358, 359, 377, 396 TiUeard, Se 5, 8 Tillett V. Nixon 115, 468 TiUstone's Trusts, Se 53, 69 Tilney v. Stansfeld 189, 455 Timins, Se 465 Tipper v. SoUleux 30 Tipton Green Co. v. Tipton Moat Co 399 Tobin V. The Queen 201, 202 Todd V. Wilson 13, 14 Toghill V. Grant 6, 9 Toke V. Andrews 356, 370 Toleman and England, Se, Exparte Bramble 17 Tolson 11. Jervis 532 Tomlin ». Underhay, iJ« Taylor.. 401 Tomline v. The Queen . . 201, 387 Tookey, Se 44 Topping V. Searsou 315 Torkington, Exparte 436 Tottenham Railway, Se 48 V. Barry 322 Toumay, Ex parte 54 Towle, Se 13 Townsend (2 Ph. 348) 88 (1 M. & G. 686) 88 V. Townsend 253, 343 Townshend's Estates, Marquis, iJ« 28 Towse V. lioveridge 360 Tracey, Se 68 TcaSoTdi, Ex parte 40 Trail v. Jackson 516 Travis v. lUingworth 80 Treheme v. Dale 445 Treleven v. Bray , 355 Trevelyan v. Charter 380 Trick, iJs 56 Tiimiuger v. Keene 449 Trinity College, Cambridge, Ex parte , 29 House (Corporation of), Ex parte 40 Trowell v. Shenton 515 Trower, iJe 68 Truman v. Redgrave 468 Tubb, iJe 68 Tuck, Se 102 Tucker, Exparte 514, 516 TufneU, Se 201 TugweU, Se 37 liy TABLE OF OASES. PAQE Tullooh V. TuUooh 474 TunstaU, He (4 De Q. & Sm. 421 ; 15 Jur. 645) 80, 81 Turnbull v. 'Janson 548, 549 Turner, Jix parte 12 ,ii!e Gumming .. 19 ^ (2 De a. E. & J. 354) 456 , He (33 L. J., Ch. 232 ; 12 W. R. 337) 104 'sEstate,iJe(10W. K. 128) 39 V. Bridgett 509 V. Burkensliaw 384 • V. CKfford 454 V. Hancock 266, 540 V. Hand , , , , 14 11. Hednesford Gas Co. . . 356 S.Hodgson 380 V. L. & S. W. Ely 445 V. MuUineux 88 ». Snowdon 327 V. Speakman 66 1!. Tumer(7W.E,.573).424,658 ■ — (15 Jur. 1165).. 479 Tumey v. Bayley 392 Tumley, Re 56 Turquand v. Pearon 333 «>. WUson 396 Turton ». Barber 382 Tweedale, Se ,. 56 Tweedy, He 84, 481, 487 Twinberrow v. Braid 649 Twycroas v. Grant 351, 392 Twyford Abbey, Se 149 Twynam v. Porter 15, 18, 346 Tylee v. Tylee 472 Tyler,. JJe 56 Tyrone (Earl of) v. Marquis of Waterford 405 U. Umfeeviile v. Johnson 336 TJnderdown v. Stannard 433 Undertaking of West Riding, &c., lie 49 Underwood, He 64, 68, 70 1!. Secretary of State in Council 552 Unglees v. TufE 369 Union Bank 41. Ingram 116 v. Manby 387 United Kingdom Assurance Co., Se.: 52 Telegraph Co., Se 465 States of America v. M'Eae 383 «. Wagner 385 ■ Telephone Co. v. Dale . . 468 Upfull, Se 64, 67 Upmann v. Eorester 540 Upperton, Se 8 Upton V. Brown 492, 605 Usil V. Brearley 516 Usill V. Whelptou 411 Ustioke V. Peters 402 V. PAGE y.,Se ...... „ 189, 465 Vaoy V. Vacy 347 Val de Travels Co. v. London Tram.ways Co 333 Vale V. Oppert 388, 517 ValentinjB v. HaU 423 Vallapce, Se 15 ; — V. Birmingham Invest- ment Corporation 336 Vancouver v. Bliss 539 Van 4er Kan v. Ashworth 564 Vanderwell v. Vanderwell 400 Vane v. Vane 339, 430 Van Gheluive v. Neiiuckx 104 Vansittart v. Vansittart 99 Vardy, JJe 10 Varley, Se 439 Varteg Chapel, Se 433 Vaudrey, Se 43 Vaughan v. Eitzgerald 430 -. :;. Mariiuis of Headfort 227 Vavasseur v. Krupp . .' 356 Vawdrey, Se 41 Veal J.. Veal 231 Veitch V. Irving 543 Velati V. Braham 467 Venables v. Schweitzer 493 Venour's Settled Estates, Se 29 Ventnor Harbour Co., Se 179 Verminck v. Edwards 392 Vernon v. St. James's, Westmin- ster (Vestry of) 549 VerraU «. Cathoart 181 Viall, Se 88 Vickers, Se 65, 80 Vidler v. Parrott 369 ViUeboisnet v. Tobin 383 Vincent, Se 308 V. Vernier 10 Vines, Se 8 Viney, Ex parte 514, 537 Se 18 ®. Chaplin 380, 478 Vivar, The 321 Vivian v. Little .' 389 Vorley v. Richardson 404 Vyse V. Brown 466 V. Poster 18 W. Waoher, Se 67, 74 WaddeU, Ex parte 266 Se - . 79, 108 V. Blookley 616 WaddUove v. Taylor 462 Wade V. Wilsou 116 Wagner v. Mears 342 WagstafE v. Jacobowitz 330 Waite V. Bingley 180 V. Littlewood 105 Wake V. Wake 70, 78, 90 Walburu v. Ingilby 517 Walford v. Walford 617, 618 Walhampton Estate, Se 52 Walker's Estate, Se (22 L. J., Ch. 888) 37 TABLE OF CASES. Iv PAGE Walker, JJs (24 Oh. D. 698) .... 117 ■ r- .(7 Ely. Cas. 129) ... . 41 r- (16 Jut. 1154) 57 (3 Oh. D. 209) .... 64, 69 ^ f . Balfour 348 ■■ — v.. Blackmore 351 », Bvmkell 268, 421 ^ — V. Cratbree 409 V. Hioka 309 41. Poole 388 V. Eooke , . 456 r. Seligmann 344 4'. Ware, &c., Ely. Co. . . 47 Wallace ». Greenwood ..30,182,186 Waller v. Holmes 17 Walley, Be 490 WaUingford v. Mutual Society , . 331, 360 WaUis V. Bastard 484 V. Hepburn 374 V. Jackson 376 V. Lichfield 420 V. Sarel .•. 397 Walsh, Me 13 V. Lonsdale 260 V. Wason 462 Walsham v. Stainton 382 Walter r. Smith 337 Walters, He 53 V. Earl of Shaftesbury . 383 V. Woodbridge 548 Walton, ie« 4,15 War (Secretary for) v. Chubb 468 Warburg, Hx parte 511 Warburton v. Hill 459, 461 Ward, :Ex parte 34, 516 — - Se (2 W. E. 406) 57 (14 W. E. 96) ....;... 102 (W.N. (1884), 211).... 30 : — V. Booth 454 V. Eyre 20 V. HaU 268 V. Hepple 17 V. Lawson 7 .V. Morse 365, 540 V. Pilley 268 V. Swift 472 V. Ward 338, 456 V. Wyld 275 Warde, Se 105 Warden v. Peddington 382 Warder v. Saunders 351 Ware v. Watson 506, 537 Waring, Se 55, 56 ». Laoey 441 V. Manchester, ShefEeld, and Lincolnshire Eail- way 478 V. Williams 8 Warner v. Armstrong 479 V. Dell 263 V. Mosses . . 422, 423, 552, 555 11. Murdoch 412 V. Twining 355 Warr, De la, iJ« 103, 149 (Earl De la) v. Miles . . 514, 549 Warren, Se • • ■ ■ 120, 490 Wairiek v. Queen's College, .383, 391 Warwick Charities, Se 79 FAOE Warwick Pearson, Se 55 Ely., iJe 80 Waterlow v. Burt 502 Waters v. Shaftesbury 399 u. Taylor 13 V. Waters 317 Waterton o. Burt 503 Watkin, Se 69 Watkins, Se, Ex parte Evans . . 177 V. Atchison 430 V. Parker , 341 Watlington, Bo 62 Watson, Be 67, 81 ». Cave 336,610,511 V. Cleaver 440 V. Gr. W. Eailway Com- pany 550 ■ V. HoUiday 351 V. Eodwell 14, 360, 510, 553 Watt V. Barnett 317, 329, 377 V. Leach 186 Watts, Sx parte 9 Se (24 W. E. 701) 52 (22 Ch. D. 5) . . . . 485, 492, 605, 640 ■ (9 Hare, 106) 69, 80 V. Jeiferys 459 V. Kelly 541 V. Manning 379, 556 V. Porter 459 Waugh, Se (15 Beav. 508) 5 ■ (29 Beav. 666) 6 (2 De G. M. & G. 279) 65, 93 V. Waddell 4, 5 Wavell, Se 6, 7 Way, Se 58 Webb V. Bomford 386 V. Byng 372, 405 «!. East 385, 388 V. Grace 6 V. Salmon 317 V. Stfenton 456 Webster, Ex parte 37, 510 V. British Association Co 346 V. Le Hunt 17 V. Myer 639 V. WhewaU 389 Wedderburn, Se 103, 105 V. Pickering 411 Wedderburne v. Llewellyn 479 Weeding, Be 77, 89 Weeks v. Stourton 384 Weightman v. Powell 378 Weise v. Wardle 334 Welchman, Se 13 Weldon v. Neal 192- V. Eiviere 192 V. Winslow 192 Weller v. Fitzhugh 64 Wellesley v. Beaufort (Duke of) . . 98 V. Momington 462 V. Wellesley 341 WeUs, Se (8 Beav. 416) ... 8, 10, 13 (31 W. E. 764 ; W. N. (1883), 111) 163 V. Chelmsford Local Board 36 Ivi TABLE OF CASES. PAOE WeUs V. aibbs 459 ». Kilpin 177 V. Malbon 54 V. Mitoham Gas Co 549 Welsh V. SilweU 4 Wentwortli v. Lloyd 549, 559 Wesson v. Stalker 307 West ». WMte 411 West of England Bank, Se 280 Westbourne GroTe Co., Se 280 Westerman v. Eees 509 Western Benefit Building Society 439 of Canada Oil Company, Se 425 Westhead v. Eiley 177, 468 V. Sale 87 Westman v. Aktiebolaget, &o. . . 321 Westminster Co. {Duoneas of), Se, 514, 549 Co. V. Clayton 387 (Dean and Chapter of), iJe 34 Weston V. Cohen 386 ». Davidson 116 V. Filer 77, 90 Westwood, -ffi« 91,92 Weymann v. Corcoran 550 Weymouth v. Lambert 317 Whalley, iJe 6,8,658 V. Williamson 9 Wheeler, Se 88 n. Gill 504 1!. Le Marchant 383 1). United Telephone Company 366 Wheelwright ». Walker 141, 149 Whetstone v. Dewis 353, 354 Whioher, Se 13, 14 Whistler v. Hancock 374 Whitaker, Se 63 v. Robinson 465 V. Thurston 357 White, Se (5 Ch. 698) .... 66, 67, 74 (W. N. (1881), 115; 29 W. E. 820) ..71, 107 (19 W. R. 39 ; 23 L. T. 387) 189,465 V. Baugh 472 1). Chitty 335 V. Stewart 344 i). Witt 515 Whiteaves v. Melville 346 Whitehaven (Bank of) D.Thompson 317 Whitehouse, Se 280 Whitfield (Incumbent of), Se . . 29, 43 V. Roberts 16 Whiting, Se 69 V. Bassett 433, 435 to Loomes 108 V. East London Water- works Co 358 Whitley v. Honeywell 317 ' Hx parte 84 . Se 57 WhitUng, Se 42, 69 Whitney v. Smith 344 Whittington v. Gooding 347 Whitton, Se 56 Whitworth (Curate of), ^ar^arte . 33 FAQE Whitworth v. Whyddon 506 Whopham v. Wingfield 52 Whyoherley v. Barnard 483 Whyte V. Ahrens 357, 392 Widgery v. Tepper 460 Wigan Railways Act, Se 60 Wight, Se 29 Wightman v. Wheelton 428 Wilder v. Pigott 339 Wilding 4). Bolder 81 Wiles V. Cooper 548 Wilkes, iJe 34 V. Saunnion 399 WUkins V. Stevens 566 V. Sibley 460 Wilkrnson, £x parte (3 De G. & Sm. 633) 31, 34 Se (9 Eq. 343) 369 i (16 W. R. 537) .... 40 (12 W. R. 522 ; 10 Jnr. N. S. 716) . . 70, 78 V. Belcher 341 V. Castle 183 !). Jobems.. 180, 181, 183 V. Schneider 231 V. Smart 5 Wilks V. Groom 64, 68, 72 WiUan, Se 84 Willcook V. Terrell 454 Willey V. South Eastern Railway Co 47 WiUiam of Kyngeston's Charity, -S« 30, 31 WiUiams, Se (15 Eq. 270) 104 (15 Beav. 417) .... 7 (28 Beav. 466) . . 9, 17 (4 Kay & J. 87) . . 55, 56 (5 De G. & Sm. 515) 77 (7 Jur. N. S. 323) . . 389 (8 W. R. 678) .... 96 V. AUen 345, 346 II. Aylesbury and Buck- iagham Rly. Com- pany 29 V. Brisco , , 377 V. Games 181 ». Griffiths 4 V. Page 347 V. Preston 6H V. Prince of Wales Assu- rance Co 389, 390 V. Rowlands 345 V. Snowden 266 Williamson v. Jeffreys 492 V. L. & N. W. Ely.'. 369, Willis V. Childe 386 Willmott V. Barber .".'.'.',!! 540 WillyamB v. Hodge " " ' 326 Wills, JJe '\ 88 — - V. Parkinson !!".!!!!! 380 Wumott V. Young 375 WSbovl, JEx parte !!."."!!.'.' 510 Se (9 Jut. N. S. 1043 ;"32 li. J., Ch. 191) 33 (W. N. (1867), 110) .. 44 {14"W. R. 161)...,..55, 56 V. Alltree ..217, 219, 241, 407, 559 TABLE OP OASES. Ivii PAOE Wilson V. Applegarth 397 V. Bates 188 V. Chviroli..336, 337, 385, 516, 517 V. De Coulon 42t V. Dundas 456 V. Emmett 9,17 V. Poster 41, 42 V. Gray 464 V. Hood 17, 18 V. Metcalfe 454 V. Northampton Ey 382 V. RastaU 383 V. Rhodes 334 V. Round 18 V. Smltii .-. 516 V. Thombnry 389 V. Watson 537 ■■ — • V. West Hartlepool Ry. Co 518 V. Wilson 472 Wilton, He 13 V. Hill 338 Wiltshire v. Marshall 424 Winchester (Bishop of), Sx parte 34 V. Bowker 383, 388 College (Warden of), Ex parte 30 Winder, Hx parte 36, 43 Me 30, 37 Windsor Ry. Se 39 Winehouse v. Winehouse, Se Maggi 280, 281 Wing V. Harvey 429 V. Tottenham Ry 47 Wingroye v. Thompson 347 WinHey v. Winkley ...» 445 Winterbotham, He 7 Winterfield v. Bradnum 542 Winteringham, Jie 66, 84 Wise, JRe 55, 84 Wiseman, JRe 88 Witham v. Vane 348, 350 Withemsea Brick Works, He.... 280 Withey v. Haigh 479 Withington v. Withington 80 Witt V. Corcoran 266, 540 V. Parker 509 Wolff, JJe 47 V. Vanderzee 398 Wolley, Se 41 «. Ajnley 540 V. Groodwin 370 r. Kay 411 V. Swan 311 Wolverhampton Co. v. Bond .... 317 Wombwell v. Corporation of Bamsley 6, 10 Wood, Se (10 Eq. 572) 34 (11 Eq. 155) 56 — — (15 Sim. 469) 69 (3 De G. P. &. J. 125) . . 64, ^ 67, 84 , . V. Anglo-Italian Bank . . 392 V. Beetlestone 77, 85 D. Parthing 518 . V. Weightman 102, 500 V. Wheater 363, 447, 462 M. PAOE Wood V. Wood 102 Woodall, ^x parte 451 Woodard, Se 12 Woodbridge, Se 267 Woodbum, Se (13 L. T. 237) . .39, 45 — (1 De G. & J. 351) . . 54, 65, 88 Woodcock V. Oxford, Worcester So Wolverhampton Ry. Co 479 Woodgate, Se 80 Woodhatoh v. Ereeland 388 Woodhouse v. Woodhouse 345 Woods, Se, Ex parte Ditton .... 4 V. M'Innes 322 ■ ■ V. Oliver 399 '— V. Woods 553 Woodward v. Pratt 231 WooUard, Se 57, 58 WooUett, Se 8 Woolley V. Colman 116 Wootton, Se 34 V. Wootton 539 Working Men's Mutual Society, Se 424 Wormsley v. Sturt 399 Worraker v. Pryer 308 Worrall v. White 542 Worth, Se 6 V. Mackenzie 327 Wortham v. Pemberton 97 Wortley, Se 337, 466 Wragg, Se 83 D. Morley 499 V. Wragg 440 Wren v. Kirton 472 Wrench v. Wynne 462 Wrey, Se 31 Wright, Se (3 Kay & J. 419) . .53, 56 (1 Sm. & G. App. V.) 58 (24 Oh. D. 662) . . 148, 149 's Trusts, Se 54 D. Clifford 417 V. King 372 J). Larmuth 503 V. Pitt 387 V. Redgrave 257 V. Swindon Ry 374 V. Tatham 430 V. WilHn 425 Wyohe, Se 13 Wycherleyii. Barnard 606 Wye Valley Ry. v. Hawes 348 Wylde, Se 59, 84 Wylly, Se 55 Wyman v. Bockett 552 Wymer v. Dodds 337 Wynne v. Humberston 383 Yaemo-dth Ry., Se 50 Ya,teB, Ex parte (W.N. (1869), 150; 17 W. R. 872; 20L. T. 940).. 44 e Jviii TABLE OF CASES. PAQE Yates, Re 96 V. Plumbe • 476 Tearley, Re.. 436 Tearsleyj). Tearsley 546, 659 Teates, Re 40, 42 Teatman v. Snow 309 V. Teatman 533 Teomans v. Haynes 503 Tetts, Re 5, 6 York V. Sto-wers 332 Yorkshire Banking Co. v. Beatson 332 ' Ey. Waggon Co. v. Madure 168 Tramway Co. ii. Egling- ton Co 321 FAOB Yorkshire 'Wflggon Co." v. New- port Coal Co 348 Young, Ex parte 338, 448 Re 69 V. Brassey . . 307, 322, 433, 439 V. King 464 V. Kitohin 259, 355, 364 — — - V. Ward 335 Z. Zambaoo v. Cassavetti 466 Zulueta ». Vincent 316 ADDENDA. j Adda reference to Cottrellv. Cottrell, W. N. (1885), 23. Page 18, line 30. Add a reference to Re United Shepherd's Wheal Co., W. N. (1885), 15. ,, 34, line 45. ,, 148, line 35. ,, 153, line 43. Add a reference to Re Diike of Bucchuch's Estate, "W. N. (1885), 14. „ 183, line 30. Add— " As to an annuitant, see Foole v. Foole, W. N. (1885), 15." ,, 193, line 10. Add — " Person, J., has held, that in the case of a -woman married before the Act, sect. 1 applies only as to property acquired by her after the Act {Re Harris, 28 Ch. D. 171)." ,, 266, line S. Add — " An order dismissing an action for want of prosecution with- out costs is not subject to appeal [Snelling v. Fulling, N. W. (1885), 13)." I ,, ,, line 50. Add — " On an appeal for costs the decision of the judge below will rarely be interfered with {Re Gilbert, W. N. (1885), 21)." ,, 305, line 41. Add — "The Attorney-General of the Duchy of Lancaster cannot exhibit an information in the High Court of Justice {Attorney- General of the Duchy of Lancaster Y. Duke of Devonshire, 14 Q. B. D. 195)." „ 320, line 22. Agnew v. Vsher is now reported in 14 Q. B. D. 78. ,, 324, line 31. Add — "Where a writ is issued against a firm and served on one member, who appears in his own name, but there is no service on or appear- ance by the other members, judgment cannot be signed against the firm for default of appearance {Adam v. Totvnend, 14 Q. B. D. 103)." „ 337, line 11. ^dff— " And see Drage v. Sartopp, W. N. (1885), 17." ,, 357, line 22. ^ill> and to make such order for the delivery {u) by any attorney or solicitor, or the ^elTSo. executor, administrator, or assignee of any attorney or solicitor, of such bin as aforesaid, and for the delivery (m) up of deeds, documents, or papers in his possession, custody, or power, or otherwise touching the same, in the same manner as has heretofore been done as regards such attorney or solicitor, by such Courts or judges respectively, where any such business had been transacted in the Court in which such order was made : Pbovtded Also, that it shall not in any case be necessary in the first Evidence of instance for such attorney or solicitor, or the executor, administrator, {jju_ ^ or assignee of such attorney or solicitor, in proving a compliance with this Act, to prove the contents of the biU he may have delivered, sent, or left, but it shall be sufficient to prove that a biU of fees, charges, or disbursements, subscribed in the manner aforesaid, or enclosed in or accompanied by such letter as aforesaid, was delivered, sent, or left in manner aforesaid ; but nevertheless it shaU be competent for the other party to show that the bill so delivered, sent, or left, was not such a biU as constituted a bond, fide compliance with this Act. It shall be lawful for any judge of the superior Courts of law and Power to eqtiity to authorise an attorney or solicitor to commence an action or aotion"before ' suit for the recovery of his fees, charges, or disbursements against the expiration of party chargeable therewith, and also to refer his bill of fees, charges, ™ega?prao. and disbursements, and the demand of such attorney and solicitor titioners Act, thereupon, to be taxed and settled by the proper officer of the Court in ^*^^' ^- 2- which such reference shall be made, although one month shaU not have expired from the delivery of the bill of fees, charges, or disburse- ments, on proof to the satisfaction of the said judge that there is pro- b2 SOLICITORS ACT, 1843. 6 & 7 Vict. baWe cause for believing that the party chargeable therewith is about c. 73, Ba. 37-43 ^^ ^^j^ England or to become a bankrupt or a liquidating or com- pounding debtor, or to take any other steps or do any other act which, in the opinion of the judge, would tend to defeat or delay such attorney or solicitor in obtaining payment (»). Short title. " Attorney or solicitor." General juriS' diction over solicitors. Action for account and taxation. Non-deliverjr. Remedies of solicitor. " Business.' "Month." What is " de- livery." The Act is now called " The Solicitors Act, 1843 ; " see The Solicitors Act, 1877, 40 & 41 Vict. c. 25, s. 1. (a) Attorneys and solicitors are now styled " Solicitors of the Supreme Court" (Judicature Act, 1873, s. 87) ; and see Judicature Act, 1875, s. 14, and Judicature Act, 1881, B. 24, infra, as to power of adapting enactments to solicitors of the Supreme Court. As to the general jurisdiction over solicitors, see Cowdell v. Neale, 1 C. B. N. S. 332 ; Hx parte Lord Camdross, 5 M. & W. 645 ; Ex parte Arrowsmith, 13 Ves. 126 ; iS« Forsyth, 34 Beav. 140 ; on appeal, 2 De G-. J. & S. 609 ; 13 W. R. 932 ; 12 L. T. 687 ; Judicature Act, 1873, s. 87. The Act should be construed liberally for the client {MngUheart v. Moore, 15 M. & W. 548 ; Maddeford v. Austwiek, 3 M. & Cr. 423 ; Williams v. Griffiths, 10 M. ftW. 125). The summary jurisdiction given by the Act does not exclude the right of a client to bring an action against his solicitor for an account [Morgan v. Siggins, 5 Jur. N. S. 236 ; lyddon v. Moss, 4 De G. & J. 104 ; O'Brien v. Lewis, 9 Jur. N. S. 321) ; or to enforce an agreement for delivery by petition [Re Bailey, 34 Beav. 392). But a cestui que trust, out of whose property the bills have been paid, cannot sue the solicitors of the trustees for an account and taxation of the bills {In re Spencer, Spencer v. Mart, 30 "W. R. 296; W. N. (1881), 170). (i) An assignee in bankruptcy was held to be within the Act (He Walton, 4 K. & J. 78) ; and see Ingle v. M'Outchan, 12 Q. B. D. 518, and note (A), infra, p. 5. [c) As to pleading non-delivery, see Lane v. Glenny, 7 Ad. & Ell. 83 ; Morgan v. Btiddock, 10 Dowl. Pr. Ca. 311 ; Hitchins v. Tate, 7 C. B. 875 ; Flower v. Newton, 11 Jur. 875. A solicitor may set ofi a bill before delivery [Lester v. Lazarus, 2 C. M. & R. 665 ; Broum v. Tibbits, 31 L. J. C. P. 406 ; 10 W. R. 465) ; or prove in bankruptcy [Ex parte Prideaux, 1 Gl. & Jam. 28 ; and see Ex parte Dewdney, 2 Rose, 69 ; Ex pa/rte Steele, 16 Ves. 166) ; or sue on a promissory note or other collateral agreement [Jeffreys v. Evans, 14 M. & W. 210 ; 14 L. J. Ex. 363 ; Re Moss, 17 Beav. 346 ; Thomas v. Cross, 10 Jur. N. S. 1163 ; 13 W. R. 166). But he cannot recover on an account stated in respect of a bill of costs, unless the bill has been duly delivered [Brooks V. Bockett, 9 Q. B. 847). In Waugh v. Waddell, 16 Beav. 621, it was held that pending a reference for taxation a solicitor could not by suit enforce a charge for costs given him by a married woman on her separate estate ; see this case com- mented on in Thomas v. Gross. After taxation, an action by the solicitor on his bill is a contempt [Re Campbell, 3 De G. M. & G. 686). A solicitor has no statutory right to have the amount of his charges ascertained by taxation Only [Ex parte Ditton, Re Woods, 13 Ch. D. 318 ; 28 W. R. 408 ; 42 L. T. 161 ; where a solicitor who tendered a proof in the bankruptcy of his client in respect of costs due to him, was held not entitled to have his bUl referred for taxation, as the registrar had jurisdiction to determine the amount due, availing himself, if necessary, of the advice of the taxing master). [d) These words only include business done in the character of solicitor, see note [t), infra, p. 8. [e) A calendar month is meant (s. 48 of the Act ; Ryalls y. Reg., 12 Jur. 468). It is to be calculated exclusively of the days on which the biU is delivered and the action brought [Bltmt v. Meslop, 8 Ad. & EU. 577). (/) As to what constitutes delivery, see Eggington v. Oumberlege, 11 Jur. 932 ; Welsh V. Sihvell, 11 Jur. 471 ; Blaiidy v. De Burgh, 6 C. B. 623 ; Bunn v. Sales, 1 E. & F. 174 ; Phipps v. Baubney, 16 Q. B. 614 ;' Gfridley v. Austen, 16 Q. B. 604, 611 ; Spier v. Bernard, 8 L. T. 396 ; Flower v. Newton, 11 Jur. 875 ; and in the case of a public officer, see Champ v. Stokes, 6 H. & N. 683 ; 7 Jur. N. S. 607 ; and in that of the committee of a public company, Edwards v. Lawless, 6 Rly. Ca. 357 ; Mant V. Smith, 4 H. & N. 324 ; Blandy v. Be Burgh ; Phipps v. Baubney. Delivery to a duly authorised agent of the client is sufficient [Re Bush, 8 Beav. 66), or, semble, to his servant [M'Gregor r. Keily, 3 Exoh. 794) ; but a delivery to his solicitor, or to a friend or relation [Gridley v. Austen, 16 Q. B. 504, 611 ; Re Abbott, 4 L T 676), is not. The bill may be sent by post [Roberts v. Lucas, 11 Exch. 41), and in such a case it is enough if the envelope and a signed letter accompanying it be addressed to the party chargeable [ibid.; Taylor y. Hodgson, 3 D. & L. 115; and SOLICITORS ACT, 1843. 5 see Manning v. Glyn, \ Jones, Ir. Ex. Eep. 513). Where the action -was brought 6 & 7 Viot. against the executors of the client, a delivery to the client himself in his lifetime o. 73 sa. 37-43 was held enough [Reynolds v. Caswell, i Taunt. 193, under the 2 Geo. 2, o. 23 ; see, 1 ! '. too, Tate v. Kitchens, 7 G. B. 875). Where clients were liable on a joint contract, delivery of the bill to one of them was held sufficient [Mant v. Smith). As to the mode of enforcing the order, see note («), infra. ig) The bill must be left, not merely shown {Fhipps v. Bauhney, 16 Q. B. 514; " Sent or Crowded- v. Shee, 1 Camp. 437). left." (A) The bfll, or some accompanying document [Taylor \. Bodgson, 3 B. & L. 115 ; poim of ^jjn Moberts v. Lucas, 11 Exch. 41), must specify the persons to be charged [Gridley v. -f pastn Austen, 16 Q. B. 504 ; Champ v. Stokes, 6 H. & N. 683), the Court in which the business was done [Lewis v. Primrose, 6 Q. B. 265 ; Dimes v. Wright, 8 C. B. 831), the name of the cause [Keene v. Ward, 13 Q. B. 515), and the particular items charged for [Drew v. Clifford, 2 C. & B. 69 ; Se Smith, 4 Beav. 309 ; Fhilbyv. Scale, 8 C. B. N. S. 647 ; Se Fender, 10 Beav. 390 ; Re Tilleard, 32 Beav. 476 ; Pilgrim v. Sirschfeld, 12 W. E. 51 ; Wilkinson v. Smart, 24 W. R. 42) ; and as to specifying the number of foKos in deeds, see Re Foster, 2 De Gt. P. & J. 105. As a general rule, it is sufficient if the biU gives such information as will enable the client to obtain advice as to the taxation [Saigh v. Ousey, 7 Ell. & Bl. 578 ; Cook V. Gillard, 1 Ell. & Bl. 26 ; Frowd v. Stillard, 4 C. & P. 51 ; Sargent y. Gannon, 7 C. B. 742) ; and it need not be drawn in the technical form of a debtor and cre- ditor account [Holmes v. Magrath, 5 Ir. Law Rep. 376). (t) An unsigned bill accompanied by a signed letter referring to the bills is suf&- Unsigned bill, dent [Re Bush, 8 Beav. 66 ; Bmley v. Anstruther, 52 L. J. Ch. 367 ; 48 L. T. 665 ; W. N. (1883), 48). An unsigned bill of costs may be referred to taxation by the Client may party chargeable if he chooses to waive the irregularity [Re Fender, 8 Beav. 299 ; on -vraive irregu- appeal, 2 Phil. 69 ; Re Gedye, 14 Beav. 56 ; Re Foster, 2 De G. P. & J. 105) ; but he larity. is not bound to do so [Billing v. Coppock, 1 Exch. 14). (A) The words of the Act are satisfied by an unsigned bill being sent enclosed "j^Baignge » with a letter referring to the bill, and signed by a new firm of solicitors who have ° taken over the business and debts of an old firm, some of the business charged for having been done by the old firm and some by the new [Fenley v. Anstruther, 52 L. J. Ch. 367 ; 48 L. T. 665 ; W. N. (1883), 48). (?) A married woman having separate estate, which she has by agreement made Who, as party liable [Waugh v. Waddell, 16 Beav. 521 ; and see Re Pugh, 17 Beav. 336 ; Mwrrayv. chargeable, Barlee, 3 M. & K. 209 ; Fenley v. Anstruther ; and the Married Women's Property may apply for Act, 1882, infra) ; the next friend of an infant [Re Fluker, 20 Beav. 143 ; Re Flower, taxation. 19 W. R. 578) ; the executors [Jefferson v. Warrington, 7 M. & W. 137); or trustee in bankruptcy [Clarkson v. Parker, 7 Dowl. 87 ; but see Re Elmslie % Co., 9 Eq. 72), of the party originally liable, are parties chargeable within the Act ; but an insolvent is not (JJe Salsall, II Beav. 163; and see Re Leadbitter, 10 Ch. D. 388) ; nor an outlaw [Re Mander, 6 Q. B. 867) ; but see ReSeritage, Hx parte Docker, 3 Q. B. D. 726 ; 47 L. J. Q. B. 509 ; 26 W. R. 633 ; 38 L. T. 509 ; Re Simpson, W. N. (1878), 214 ; and the cases cited in note [w), infra, p. 10). A party in contempt is not incapacitated from applying [Newton v. Ricketts, 11 Beav. 67). As to enforcing payment by a married woman of a biU of costs which she has taxed, see Re Peace and Waller, 24 Ch. D. 405. Where several persons are jointly chargeable, they should concur in Persons the application [Re Lewin, 16 Beav. 608 ; Ex parte Mobbs, 8 Beav. 499 ; Re Perkins, jointly 8 Beav. 241) ; and an order obtained by one of them alone on an allegation that he chargeable, alone employed the solicitor, wiU be discharged as irregular [Re Perkins ; Re Ilder- ton, 33 Beav. 201) ; and see Re Tetta, 33 Beav. 412. But it seems that if one of the parties so liable refuses to concur, the order may be obtained by the other [Lockhart V. Sardy, 4 Beav. 224 : Ee Hair, 10 Beav. 187). In Re Colquhoun, 5 De G. M. & G-. 35 ; 23 L. J. Ch. 515, taxation was ordered on the application of one party, the retainer having been separate. See, too, Re Stephen, 2 Ph. 562 ; 17 L. J. Ch. 219 As to the cases in which security for costs will be required from the person apply- Securi^ f or ing, see Re Pasmere, 1 Beav. 94 ; ReDolman, 11 Jur. 1095 ; Fx parte Foley, 11 Beav. costs of taxa- 456 ; Murrow v. Wilson, 12 Beav. 497 ; Re Waugh, 15 Beav. 508. _ tion. Overseers of the poor are bound to have a solicitor's bill taxed before they pay it ; y^o must and in case of neglect the payment may be disallowed [Re Overseers of Napton, 27 apply. T T ^O S \ 124^ The client obtaining the order for taxation has to undertake to pay what shall be Undertaking found due, and may have to pay charges which could not have been actively re- to pay. covered by the solicitor; see ife/owes, 9 Eq. 63; JJ«.B?»i»««# «).,i*«^_ 72. "TTiVh Court [m) The Court of Chancery is now the Chancery Division of the High Court of . pu°,t,„^™ ,. Justice ; and the Courts of Queen's Bench, Common Pleas and Exchequer, have oi "^^laiii-eiy, become the Queen's Bench Division of the High Court ; see Judicature Act, 1873, B. 31, as modified by Order in Council of December 16, 1880. „„•«»• j. ax. By the Judicature Act, 1881 (44 & 45 Vict. o. 68), s. 2, the Master of the RoUs Master of the SOLICITORS ACT, 1843. 6 & 7 Viot. B. 73, ss. 37-43 Wliere orders for taxation may be ob- tained. Busiaess done in no Couit. Solicitor's agent's bill. Order before twelvemonths ex parte and of course. Order to continue. Special appli- cation is necessary, (1) If part only of a bill is to be taxed. (2) Wliere ceased to be a judge of the High Court, but continues to be a judge of the Court of ^s to the Court of Common Pleas at Lancaster and the Court of Pleas at Durham, see Judicature Act, 1873, a. 16. , ■, •. ■ j j iv. An order for taxation of costs in any Court may now be made by any judge ot tne High Court of Justice, the jurisdiction conferred by this section bemg transferred by sect. 16 of the Judicature Act, 1873, to the judges of the High Court {per J essel.M.B,. in Be Worth, 18 Ch. D. 521 ; 50 L. J. Ch. 262 ; 29 W. R. 371 ; 44 L. T. 462, where it was held that costs as between solicitor and client m a County Court action where the claim exceeded 20?. might be taxed in the Chancery Division). Perhaps, too, an order for taxation of costs for business done in no Court, or in any matter of bankruptcy or lunacy, might now be obtained elsewhere than in the Chancery Divi- sion : see Judicature Act, 1873, s. 87 ; Se Simpson, W. N. (1878), 214 ; see, however, Judicature Act, 1873, s. 34 (2) ; DanieU, 2017. As to the scale of charges to be aUowed, see R. S. C. 1883, Ord. LXV. rr. 8, 9, 10, infra. The following descriptions of charges were held to be for busiaess done m no Court and therefore taxable in Chancery : — . Charges for Parliamentary business (the equitable jurisdiction not bemg taken away by the House of Commons Costs Taxation Act, 1847, 10 & 11 Vict. c. 69, or the House of Lords Costs Taxation Act, 1849, 12 & 13 Vict. c. 78 ; Se SlrotAer, 3 K. & J. S18 ; JRe Sudhw, 11 Beav. 400 ; Se Osborne, 25 Beav. 353) ; for obtammg an order at chambers for leave to enter up satisfaction on a bond given to the Crown (Re Gaitskell, 1 Ph. 576) ; for obtaining a married woman's acknowledgment {Bx parte Branson, i Scott, 539) ; for business done in the Court of a revising barrister {Se Andrews, 17 Beav. 610). Where a solicitor was appointed returning ofBoer for the election of a school board and sent in his bill of expenses in the usual form of a bill of costs, it was held the biU could be taxed {Se Jones, 13 Eq. 336) ; and see Wombwell v. Corporation of Barnsley, 36 L. T. 708. Where the solicitor retained his bill and refused to produce it, it was assumed that the Court had jurisdiction {Se Zoughtorough, 23 Beav. 439). The rule in the Court of Chancery was, that though, in general, the application need not be made to that branch of the Court which heard Qie suit {Robins v. Mills, 1 Beav. 227 ; Se JElmslie, 12 Beav. 538 ; Bingham v. Hallam, 9 L. J. Ch. 104), it was otherwise when the merits of the case entered into the question ( Webb v. Qraee, 12 Beav. 489). A solicitor may have his agent's bill taxed under the statute {Toghill v. Grant, 2 Beav. 261 ; Se Smith, 4 Beav. 309, and see note {t), p. 8, as to the items to be included). («) Orders of course, for delivery and taxation, may now be issued by any of the chief clerks in the Chancery Division {Mem. W. N. (1880), 7) ; and for forms of orders to refer bills for taxation, see Seton, 604 seq. In the absence of special circumstances the order maybe obtained ex parte and as of course before twelve months have elapsed from delivery {Solland v. Gwyrwie, 8 Beav. 124 ; Seton, 607) ; and on an application for taxation within the month the Court has no discretion to refuse to make the order, it is bound to make it {JSx parte Jarman, 4 Ch. D. 835). The costs of a special appUoation may be refused where an ex parte application would have been sufficient {Se Bignoli, 9 Beav. 269) ; and see Re Taylor, 15 Beav. 145 ; Re Atkinson, 26 Beav. 151 ; Re Adamson, 18 Beav. 460. ; Re Lett, 31 Beav. 488 ; Be Cattlin, 8 Beav. 121 ; Re Braeey, ibid. 338. If either party dies an order to continue the proceedings may be obtained on an ex parte application (R. S. C. 1883, Ord. XVII. r. 4; Se Waugh, 29 Beav. 666 ; Re Nicholson, 29 Beav. 665 ; Se Whalley, 20 Beav. 876). An order of course, though right on the merits, will be discharged if obtained in a case where a special application was necessary {Sarris v. Start, 4 M. & C. 261 ; Grove v. Samsom, 1 Beav. 297 ; Gregg v. Taylor, 1 Beav. 123). An order of course was held not irregular merely because the solicitor had com- menced an action for his costs (Be Farington, 33 Beav. 346), though after final judgment given in an action, the Court has no jurisdiction ; see note (j), infra. So where the solicitor had set up his bill in defence to an action, but the bUl had not been gone into, this was held to be no reason for requiring a special application in Chancery for taxation {Re David, 30 Beav. 278). A special application is necessary imder the following circumstances : — (1) If the application is to tax only part of the bUl claimed by the solicitor {Re Law, 21 Beav. 481 ; Se Byrch, 8 Beav. 124, followed in Mx parte Jarman, 4 Ch. D. 835-; Se J3alby, 8 Beav. 469 ; Re Wavell, 22 Beav. 634 ; Stolces v. Trumper, 2 K. & J. 232 ; but see Re Fkiker, 20 Beav. 143 ; Se Binton, 16 Beav. 192 ; Re Yetts, 33 Beav. 412) ; or the application is made by some only of several parties jointly liable {Re Serkins, 8 Beav. 241 ; Se Ilderton, 33 Beav. 201 ; Se Kitton, 35 Beav. 369) ; secus, where they are severally liable {Se Sair, 10 Beav. 187). (2) Where the professional employment or retainer is disputed {Se Mldridge, 12- SOLICITORS ACT, 1843. 7 Beav. 387 ; Se Thurgood, 19 Beav. 51 ; and see Gillow v. Rider, 15 C. B. 729 ; JSe g & 7 Viot. Inderwick, 25 Oh. D. 279) ; but a special appUoation need not be made because the o. 73, bs. 37-43 client considers some of the proceedings to have been unnecessary — the taxing master will go into these questions [Se Atkinson, 26 Beav. 153); and see as to retainer is retainer being joint or several, Re Allen, Davies v. Chatwood, 11 Ch. D. 244. disputed. (3) Where there is a special agreement {Re W%nterhotham, 15 Beav. 80), e.g., to ,„> ^-1, give the soUoitor a Uen {Re Moss, 17 Beav. 59 ; and see Re Ransom, 18 Beav. 220 ; H' "'."^re Re Fisher, 18 Beav. 183 ; Ward v. £awson, 8 Ch. 65). A special agreement, re- ^" . f ^ spectmg some part of the costs, unless it goes to the whole bill, is not held now ^I?: '^siee- to be necessarily a bar to a common order for taxation, though it was formerly oou- "'™'- Bidered to be so {Re Eyre, 10 Beav. 569 ; 2 Ph. 367 ; and see Re Philp, 2 Giff. 35 ; Se Forsyth, 34 Beav. 140 ; Re Thompson, 14 L. T. 6) ; but there must be no sup- pression of the fact of such an agreement, or the order wiU be discharged {Re Ingle, 21 Beav. 275 ; Re Carven, 8 Beav. 436 ; Re Holland, 19 Beav. 314). Under the old law an agreement to charge a fixed siuu in lieu of costs hereafter to be incurred was void; see Re Netmum, 30 Beav. 196; Fince v. Beattie, 11 W. B.. 979 ; Fhilby v. Sazle, 7 Jur. N". S. 125 ; but see as to an agreement to pay a soUoitor a fixed salary. Rush V. Martin, 33 L. J. Ex. 17 ; Galloway v. Corporation of London, 4 Eq. 90. Por the present law as to agreements between solicitors and their clients, see the Solicitors Act, 1870, 33 & 34 Vict. c. 28, ss. 4—15, infra, p. 20. Any irregularity in obtaining the order may be waived by the solicitor {Re Field, Irregulaiity 16 Beav. 593 ; Re Wavell, 22 Beav. 634 ; Re Mair, 11 Beav. 96 ; Re Bevan, 12 W. E. in order 196 ; Re Bartrum, ibid. 660). waived. Eor cases where a bUl might have been filed, see Re Forsyth, 34 Beav. 140 ; Ward V. Lawson, 8 Ch. 65 ; Rees v. Williams, L. E. 10 Ex. 200. (o) This application may be made ex parte. See note(»), and see also Re Gaitskell, Application 1 Ph. 576 ; Re Fender, 2 Ph. 69. For forms of order under this clause, see Re after one Bromley, 7 Beav. 488 ; Re Becke, 5 Beav. 406 ; Re Field, 16 Beav. 593. month. (p) See note (c), supra. Under the present practice the order only restrains the commencement of proceedings {Re Field, W. N. (1877), 244). (?) See Re Barnard, 2 De G. M. & G. 359. But where judgment at law had gone Verdict a bar against the client iy default, but no writ of inquiry to assess the damages had been to taxation, executed, such judgment was held not to be a final judgment so as to prevent taxation in equity {S. C 16 Beav. 5). (r) Special applications are made by summons in chambers (R. S. C. 1883, Ord. After twelve LV. Pt. I. r. 2 (15) ). months. Twelve mouths after delivery, even an unsigned bill can only be taxed under Special cir- special oircumstanoes {Re Gedye, 14 Beav. 56), which may be matters appearing on cumstanoes. the face of the bUl {Re Robinson, L. E. 3 Ex. 4), so that to entitle a oUent to taxa- tion after twelve months he must show either "pressure accompanied by some overcharge," or, "gross overcharge amounting to fraud" {Re Strother, 3 K. & J. 528 ; Re M'Kay, 15 h. T. 101) ; mere overcharge, not amounting to fraud, is not enough {Re Harle, 17 W. E. 21 ; 19 L. T. 306). But as to taxation after twelve months in cases where there is an order to tax outside the Act, see Fx parte Blair, 5 Ch. 482 ; De Bay v. Gr^n, 10 Ch. 291. As to what circumstances constitute such pressure or fraudulent overcharge, see Pressure and note {g) to sect. 41, infra, on " application to tax after payment " on which appU- overcharge, cations the question more frequently arises {Re Williams, 15 Beav. 417). The Court will require the delay to be accounted for. Thus, a dispute and cor- Othergrounds respondence as to alleged omissions in the biU were held to be a sufficient apology accounting for for the lateness of the application in Re Bagshawe, 2 De G. & Sm. 205 ; and see Binns the delay. V. Sey, ID.&li. 661 ; 13 L. J. Q. B. 28 ; but the circumstance that the solicitor was suing at law for his fees {Bennett v. Sill, 21 L. T. (0. S.) 101), or that he had possession of the papers in the suit {Re Gedye, 14 Beav. 66 ; Sayer v. Wagstaff, 5 Beav. 415 ; Re Fugh, 32 Beav. 173 ; 1 De G. J. & S. 673), was not. "Where a solicitor has been retained for a particular business, his bUl of costs for Where there carrying it through generally constitutes one bUl [Stokes v. Trumper, 2 K. & J. 232 ; are successive and see Re Feaeh, 2 D. & L. 33). But successive bills of costs in such matters as bills, the last bankruptcy, administration, and winding-up, are not necessarily to be treated as only delivered one bill brought down to the daU of the latest delivery {Re Sail and Barker (Jessel, M.E.) within the 9 Ch. D. 538 ; 47 L. J. Oh. 625 ; 26 W. E. 601) ; and see Re Cartwright (Selbome, year. L.C.) 16 Eq. 469, where, however, under the circumstances, taxation of a series of biUs, most of them delivered more than twelve months, was directed {Re Street, 10 Oo^ynTjance Eq. 165). The continuance of the relation of solicitor and client after delivery has ^^ relation of been considered a material circumstance {Re Nicholson, 3 De G. F. & J. 93 ; Mx _.i,--:i.._ ._ j parte Flower, 18 L. T. 467 ; 8. C. nom. Re F-, 16 W. E. 749) ; but in Re Elmslie S; '^g°t '^ *'''' Co., 16 Eq. 326; 42 L. J. Ch. 570 ; 28 L. T. 731, this alone was held not sufficient ; and see Re Cartwright. , , .„ ^ i- -nn, v x So where a client has not had proper opportunity to examine the biU, taxation wnere cUent after twelve months has been aUowed {Re Williams, 15 Beav. 417, where the bill has not had SOLICITORS ACT, 1843. 6 & 7 Vict. 0.73,88.37-43 opportunity to esamiue. Laches and acquiescence. Limits of taxation. Winding-up order. Where party chargeable does not attend. Costs of taxation. Items to he included. Disburse- ments. Taxation of agency bills. Ho alteration after refer- ence to master, ex- cept by leave of Court. Nor any time after delivery, unless under special cir- cumstances. Bule as to one-sixth. was delivered just as the client was going abroad) ; but the chent must show that there has been no undie laches or acquiescence on his part, that the special circumstances are such as he could not with reason have availed himself of sooner {Se MarnarU, 2 De G. M. & G. 359 ; but see He Strother, 3 K. & J. 518). Tor cases where If pse of time and laches have been a bar to taxation, see Ee Vtnes, 2 De G. m. & tr. mi-, Slagrave v. Mouth, 8 De G. M. & G. 620 (where the application was by bill). And see note (A), p. 13, «osi. _ i-j.it. In ordering taxation after twelve months the Court wiU. if necessary, restrict the taxation within certain limits (JJe NiohoUon, 3 De G. F. & J. 93). Compare AlUn v. Jarvis, 4 Ch. 616. . ,. a j t.-ii A bin taxable in point of time at the date of a wmdmg-up order, and a bm subsequently deUvered to the official Uquidator, must both be taxed before payment, although twelve months may have elapsed since delivery of the second bill, the effect of the winding-up order being to suspend the operation of the twelve months rule (Ex parte Evans, 11 Eq. 151 ; and see Se James, 4 De G. & Sm. 183). («) Solicitors proceeding under the common order for taxation (which follows tbe words of the statute) must, in any event, pay the costs of the reference themselves if the party chargeable does not attend the taxation {fie Vppertm, 30 W. R. 840). (*) It is important with reference to the costs of taxation to consider what items included by the solicitor in his bill wiU be allowed him on a reference for taxation. Only those payments are allowed on taxation which are made by the sohcitor m his professional capacity ; see the certificate of the taxing-masters in Re Remnant, 11 Beav. 603 ; and for the taxing-master's discretion as to the amount, see Ee Page, 32 Beav. 487. Other disbursements should be included in a separate account ; but see Waring v. Williams, 2 Beav. 1. Payments made to counsel for business have been held professional disbursements {FranUm v. Eeatherstonhaugh, 1 Ad. & Ell. 478) ; even when the oKent appropriated a special sum for such payment, leaving the solicitor no discretion [Re Bedson, 9 Beav. 6 ; but see Re Metcalfe, 30 Beav. 406 ; Daniell, 2032). Cash pajrments made by the solicitor in proceedings where he was not professionally concerned are not allowed to be included {Bemming v. Wilton, 4 C. & P. 318 ; Prothero v. Thomas, 6 Taunt. 196 ; Re Zees, 5 Beav. 410) ; and see latham v. Mi)de, 1 Cromp. & Mees. 128 ; Feame v. Wilson, 6 B. & Cr. 86. Thus the fees of a.solicitor acting as steward to a manor, are not professional disburse- ments {Allen V. AMridge, 6 Beav. 401) ; but business done by a solicitor " retained to act as electioneering agent, and to advise and assist the committee," may be included (iJe Osborne, 25 Beav. 353 ; 4 Jur. N. S. 296). Compare iJe Oliver, 16 W. R. 331 ; 36 L. J. Ch. 261. As to the power of the taxing-master to disallow items caused by the soUoitor's negligence, see Re Massey and Carey, 26 Ch. D. 459. A solicitor may apply for taxation of his agent's bill of costs (see p. 6, arete,) and though agency- business includes many transactions it maybe taxed in one bill, generally on the terms of the applicant paying a sum of money into Court (Billing V. Coppoc/c, 1 Exch. 14 ; Smith v. Dimes, 4 Ex. 32 ; Re Smith, 9 Beav. 342 ; Jones v. Roberts, 8 Sim. 397 ; Marvey v. Mayhew, 2 W. R. 128) ; and see Re Bowen, 41 L. J. Ch. 327 ; 20 W. R. 396. After the bill has been referred for taxation under this statute (see Davis v. Earl of Dysart, 21 Beav. 124 ; 8DeG. M. &G. 33), no alteration can be made in it (a«ys v Trotter, 5 B. & Ad. 1106 ; Re Wells, 8 Beav. 416 ; Re Oatlvn, 18 Beav. 519), except by consent, or on a special application for leave to amend {Re Andrews, 1 7 Beav. 510,614). Thus leave was given to amend by inserting omitted items, and increasing under- charges (see, however. Re Tilleard, 32 Beav. 476) ; but not to decrease overcharges {Re Whalley, 20 Beav. 576), nor to withdraw items improperly inserted {Re Carven, 8 Beav. 436 ; Re Jones, ibid. 479 ; Re Blakesly, 32 Beav. 379). So a solicitor, whose biU was referred for taxation, was not allowed to have a previous bill against the same client, which he had retained, included in the taxa- tion, for the purpose of saving costs of taxation {Re Gregg, 30 Beav. 259) ; but it has been doubted whether under an order for a general taxation, a solicitor can have items included which have been taxed and paid under a previous particular taxation [Tarbuck v. Tarbuek, 4 Beav. 149 ; and see Ex parti QuiUer, 4 De G. & Sm. 183). As soon as a solicitor has delivered his bill he is bound by it, and cannot substitute a second biU for it, even before notice of an order to tax is served on him ; and unless there are very special reasons he must abide by the bill as delivered {Re Heather, 5 Ch. 694 ; 39 L. J. Ch. 781 ; 18 W. R. 1079 ; In re Holroyde, 29 W. B. 599 ; 43 L. T. 722 ; W. N. (1881), 6; Re Chambers, 34Beav.l77; 13 W. B. 375), The rule as to one-sixth is imperative in an ori^nary reference to taxation (Re Woollett, 12 M. & W. 504; and see Higgins v. WoolcoU, 5 B. & C. 760). Where the reference is special, or the master has certified specially, the statute makes an exception, and the costs of the reference are in the discretion of the judge. Where in a suit against a solicitor for a general account, more than one-sixth was SOLICITORS ACT, 1843. 9 taken off in the suit outside the taxation, but less than one-sixth on the taxation, 6 & 7 Viot. the Court allowed the solicitor the costs of the taxation {May v. Mggmdm, 24 Beav. o. 73, sa. 37-43 207). Where taxation -was directed pending an action for the costs, and more than ' one-sixth was taken off, the Court ordered the costs of the reference to be paid by the solicitor, and the costs of the action by the client {fie Eair, 11 Beav. 96). See contra, before the Act, Toghill v. Grant, 6 Beav. 348. As to the costs of taxation of several bills, see Meardsall y. Cheetham, 31 L. T. (0. S.) 118 ; JSx parte Barrett, 3 D. & Ch. 731 ; Hx parte Fullen, W. N. (1883), 20. _ When more than one-sixth is taken off the bill of an insolvent or bankrupt soli- Where oitor, see as to the costs of the taxation lie Feers, 21 Beav. 620 ; Be Telle, 25 Beav. solicitor is 861 ; He Cole, 2 Sim. & St. 463 ; Whalley v. WiUiamson, 6 Man. & Gr. 269 ; Se Bar- bankrupt. trum, 12 W. R. 699. Where the master disallows some items and adds others, the bill is to be con- Calculation sidered as increased by the items allowed and then reduced by the sums disallowed of one-sixth. (Se Hartley, 2 Jur. N. S. 448 ; and see Reg. v. ^asiwoorf, 6 Ell. &B1. 288 ; Re Clark, 13 Beav. 173 ; 1 De G. M. & G. 43 ; and in bankruptcy, Ex parte Watts, 2 M. & A. 621 ; Ex parte Christy, 3 M. & A. 88) ;'and as to taking into account items struck out as chargeable against another person, see Re Clark, and the taxing-master's certificate in that case, 13 Beav. 181—3 ; Re Colquhoun, 1 Sm. & G. app. 1 ; S. C. on appeal, 8 De G. M. & G. 38, from which it seems that such items must be reckoned in as against the solicitor. Where a bill was ordered to be taxed (questions as to liability being reserved) and Where client less than a sixth was struck off, it was held that, whatever might be the result of pays costs, the question reserved, the client must pay the costs of taxation (Re Shaw, 20 L. J. Q.B. 280). ■ >f J K > As to the costs where the solicitor delivers a bill but offers to take less, see Re Carthew, 27 Ch. D. 488 ; Re Fault, ibid. ; 32 W. E. 876, 901. («) Orders under this section for delivery of a solicitor's bill or papers may be en- Delivery of forced by writ of attachment or by committal ; see E. S. C. (1883), Ord. XF.I. r. bill, how 5, Ord. XLII. rr. 7, 24, infra; Ex parte Aleock, \ C. P. D. 68 ; 24 W. E. 320 ; 33 enforced. 1j. T. 523 ; Ex parte Belton, 25 Beav. 368. When the order was disobeyed, and the solicitor swore that he had no papers from which he could make out his bill, the Court refused to commit him for non-delivery (Re Ker, 12 Beav. 390). No action lay at law for disobedience to the order {Dent V. Basham, 9 Exch. 469). A solicitor had further time given him to make out his bUlou payment of the costs of his motion (Re Bendy, 21 Beav. 565). The Court will, before the completion of a taxation, order the delivery up of Delivery of papers by a solicitor to his client, either upon payment into Court of the amount papers to claimed, or on security being given for payment (Se Jewitt, 34 Beav. 22) ; or in case client, it appears from the solicitor's own account that a balance is due from him to his client (Re Bevan and Whitting, 33 Beav. 439, where the solicitor had been dis- charged ; see 6 Eq. 328). It is discretionary with the Court whether or not to insert a direction for delivery up of papers in the common order for taxation ; see Ex parte Jarnum, 4 Ch. D. 835 ; 46 L. J. Ch. 485, where the rule is laid down by Jessel, M. R., following Re Byrch, 8 Beav. 124, in preference to Re league, 11 Beav. 318. See also Re Fender, 8 Beav. 299. As to the solicitor's right to enforce his lien for costs by retaining papers, see Re Mosely, 18 W. R. 975, aoApost, p. 17. If the solicitor discharges himself, pendente Ute, an order may be obtained for delivery up of papers to the new solicitor, without prejudice to the lien, the new solicitor undertaking to return them within a limited time after the conclusion of the action (Robins v. Goldingham, 13 Eq. 440 ; Meslop v. Metcalfe, 3 M. & C. 183 ; Wihon v. Emmet, 19 Beav. 233 ; Re Williams, 28 Beav. 465) ; and see Cane v. Martin, 2 Beav. 884. («) The Legal Practitioners' Act, 1878, 38 & 39 Vict. c. 79, repealed the proviso at the end of s. 37 of the Solicitors Act, 1843, and substituted for it the more com- prehensive provision given in the text. XXXVni. And be it enacted, that where any person (w) not the Bills may be party chargeable with any such bill within the meaning of the pro- ^^^ ^\i^. visions hereinbefore contained, shall be liable to pay or shaU have tion of third paid such bill, either to the attorney or solicitor, his executor, adminis- V^^«« Uahle trator, or assignee, or to the party chargeable with such bill as afore- said ; it shall be lawful for such person, his executor, administrator, or assignee, to make such application {x) for a reference for the taxation and settlement of such bill as the party chargeable therewith might 10 SOLICITORS AOT, 1843. 6 & 7 Vict, himself make, and the same reference and order shall he made thero- c. 73, Es. 37-43 upon^ and the same course pursued in aU respects, as if such applica- tion was made hy the party so chargeahle with such hill as aforesaid: Provided always, that in case such application is made when, under the provisions herein contained, a reference is not authorized to he made except under special circumstances ( y), it shall be lawful for the Court or judge to whom such application shall be made to take into consideration any additional special circumstances applicable to the person making such application, although such circumstances might not be applicable to the party so chargeable with the said bill as afore- said if he was the party making the application (z). (w) Under this section, the bill of a mortgagee's solicitor for business done in regard to the mortgaged estate, may be taxed by the mortgagor {Re Garew, 8 Beav. 150 ; Re Lees, 5 Beav. 410 ; Re Wells, 8 Beav. 416), or by subsequent incumbrancers [Re Taylor, 18 Beav. 165 ; Re Jessop, 32 Beav. 406). The official manager of a ■wound-up company obtained an order under this section {Re Vardy, 20 L. J. Ch. 325) ; as to a trustee in bankruptcy, see Re Elmslie, 9 Eq. 72. A person who has undertaken to pay the costs of another as between party and party is not entitled to an order for taxation under this section {Re Grtmdy, Kershaw ^ Co. (Jessel, M. R.), 17 Gh. D. 108 ; 50 L. J. Ch. 467 ; 29 W. E. 581 ; Re Cowdell, 62 L. J. Ch. 246 ; 31 W. E. 335 ; W. N. (1883), 18) ; seem, -where the undertaking is to pay the costs as between solicitor and client { Vincent v. Venner, 1 My. & Ke. 212 ; Re Hartley, 30 Beav. 620, as explained in Re Grwndy, Kershaw ^ Co. ; Wombwell v. Corporation of BarnsUy, 36 L. T. 708). As to an agreement to pay a lump sum for cosi,s, see Re Heritage, 3Q.B.D.726; 47L. J.Q.B. 509 ; 26W.E. 633; 38L.T.509; ReMorris, 27 L. T. 554 ; ij« Griffith, 32 W. E. 350. A mere volunteer, tmder no previous liability, who undertakes to pay a solicitor's bill, cannot have it taxed {Re Becke, 5 Beav. 406) ; nor can a person who is only remotely interested in the payment of the bill {Re Barber, 14 M. & "W. 720). Taxation can only be applied for under this and the next section in oases where the immediate client might have applied, e. g., after payment, special circumstances must be shown {Re Stephen, 2 Phil. 562; Re Dickson, 8 De G. M. & G..655). The taxation at the instance of the third party must be as between the solicitor and the immediate client, not as between the solicitor and the third party ; see Re Wells, 8 Beav. 416 ; Re Jones, ibid. 479 ; Re Fyson, 9 Beav. 117 ; Re Barrow, 17 Beav. 547 ; Re Taylor, 18 Beav. 165, where the third party (a mortgagor) was held entitled to- the benefit of a private arrangement between the mortgagee and his solicitor, but see Gordon v. Dalzell, 15 Beav. 351 ; Raymond y. Zakeman, 34 Beav. 584 ; Re Newman, 2 Ch. 707, where it was held that an agreement between the immediate client and the third party paying was not to affect the mode of taxation. If the bill has been paid without fraud or pressure by the immediate client {Re Neate, 10 Beav. 181 ; Re Rees, 12 Beav. 256 ; Re Dickson, 8 De G. M. & G. 655), or has been paid twelve months {post, p. 14), or if there is an agreement excluding taxation, the third party cannot tax it, under this section ; but if an excessive amount has been paid, he must bring an action against the client who paid the bill, to reduce his liability ; see Re Downes, 5 Beav. 425 ; Re Massey, 34 Beav. 463 ; 11 Jur. N. S. 594 ; 13 W. E. 797 (where Re Jessop, 32 Beav. 406 ; Se Baker, 32 Beav. 526 ; and Re Abbott, 4 L. T. 576, were not followed) ; Re Press andlnskip, 36 Beav. 34 ; Re Forsyth, 34 Beav. 140; 2 De G. J. & S. 509 ; 13 W. E. 307, 932 ; 11 Jur. N. S. 213 ; Re Gold, 19 "W. E. 343 ; 24 L. T. 9. {x) The proceedings under this section may be by order of course {Re Straford, 16 Beav. 27; comp. Re Moss, 17 Beav. 340 ; Re Bracey, 8 Beav. 338 ; Re BignoU, 9 Beav. 269) in cases where a Kke proceeding might have been adopted by the immediate oUent, see note («), p. 6 ; Re Hartley, 30 Beav. 620. {y) See ante, note {«), axApost, note {g), p. 12. (z) See Re Vardy, 20 L. J. Ch. 325, as to the force of these words. Court may XXXIX. And be it enacted, that it shall" be lawful in any case in tion^o/bms """liioh a trustee, executor, or administrator has become chargeable chargeable on with any such bill as aforesaid, for the Lord High Chancellor or the executors, &c. ]^aster of the Eolls, if in his discretion he shall think fit (o) upon the appUoation of a party interested (6) in the property out of which such Who entitled to apply under this section. Persons who undertake to pay- Volunteer. Not unless the client could have taxed. Taxation on what prin- ciple. Order, when of course. SOLICITOES ACT, 1843. U trustee (4), executor, or administrator may have paid or be entitled to 6 & 7 Viot. pay such bOl, to refer the same, and such attorney's or solicitor's, or °- ^^' ^^- ^^'^^ executor's, administrator's, or assignee's demand thereupon, to be taxed and settled by the proper oflacer of the High Court of Chancery, •with such directions and subject to such conditions as such judge shall think fit, and to make such order as such judge shall think fit for the payment of what may be found due, and of the costs of such reference to or by such attorney, or solicitor, or the executor, administrator, or assignee of such attorney or solicitor, by or to the party making such application, having regard to the provisions herein contained relative to applications for the like purpose by the party chargeable with such bin, so far as the same shall be applicable to such cases, and in exer- cising such discretion as aforesaid, the said judge may take into con- sideration the extent and nature of the interest of the party making the application : Provided always, that where any money shall be so directed to be paid by such attorney or solicitor, or the executor, administrator, or assignee of such attorney or solicitor, it shall be lawful for such judge, if he should think fit, to order the same, or any part thereof, to be paid to such trustee, executor, or administrator so chargeable with such bill, instead of being paid to the party making such application ; and when the party making such application shall pay any money to such attorney or solicitor, or executor, adminis- trator, or assignee of such attorney or solicitor, in respect of such bill, he shall have the same right to be paid by such trustee, executor, or administrator so chargeable with such bill as such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, had. (a) For form of order, see lie Dawson, 28 Beav. 605. The proceedings under this Application section must be by special application {£e Straford, 16 Beav. 27) ; i. «., by summons by cestui que in chambers (R. S. C. 1883, Ord. LV. Pt. I. r. 2 (15) ). trust. The taxation under this section is as between the solicitor and the immediate rp . ■ client ; but a solicitor cannot charge against a trust estate anything not necessary >, + ' for the administration thereof, although expressly directed by the trustee ; for pay- ^,-fj,„;_i ment of such charges he must look to the trustee personally (fie Brown, 4 Eq. 464 ; ^ " ' 15 W. E. 1030 ; 16 L. T. 729). Taxation of a bill may be ordered under this and the last section after payment After pay- or security given for the amount by the trustee or executor (fie Dickson, 8 De Gr. ment. M. & Gr. 66S), but in such case the cestui que trust seeking to tax must show over- Overcharcpa charges amounting to fraud (fbid.). Lord Eomilly, M. E., seems to have held a ° ' different opinion, see Jie Drake, 22 Beav. 438 ; Ee Blackmore, 13 Beav. 154 ; Re Dawson, 28 Beav. 605 ; and see note [w), p. 10, on taxation by third party. For form of order where the trustee was dead, see Re Sallett, 21 Beav. 250, and Where trustee Allen V. Jarvis, 4 Ch. 616, where the trustee was also solicitor, and had retained dead, his biU. (4) A bankrupt who has obtained his discharge and become entitled to the surplus " Party in- of his estate cannot obtain taxation of a bill of costs paid by the trustee in the terested.' ' bankruptcy ; he is not a " party interested," and the trustee in bankruptcy is not a "trustee" within the meaning of the Act [Re LeadUtter, 10 Ch. D. 388; 26 W. E. 863 ; 39 L. T. 12). XL. And be it enacted, that for the purpose of any such reference Copy of bill to upon the application (c) of the person not being the party chargeable ^ p^^^''^'^ within the meaning of the provisions of this Act as aforesaid, or of a makiag appli- party interested as aforesaid, it shall be lawful for such Court or jgfg°gno°% taxation. 12 SOLICITORS ACT, 1843. 6 & 7 Viot. judge to order any such attorney or solicitor, or the executor, adminis- 0. 73, SB. 37-4 3 trator, or assignee of any such attorney or solicitor, to deliver to the party making such application a copy of such bill, upon payment of the costs of such copy: Provided always, that no bill which shall have been previously taxed and settled shall be again referred unless, under special circumstances, the Court or judge to whom such applica- tion is made shall think fit to direct a re-taxation thereof. No re- taxation. Delivery of bill to cestui que' trust. Taxation of bill after payment. Security is equivalent to payment. Retainer by solicitor is not. Form of order. Mode of application. ' ' Special cir- cumstances.' ' (1) Pressure accoi by some Refusal to deliver up papers. Threats to enforce securities. (e) For form of order under this section, see Seton, 622 ; and see Me Blackmore, 13 Beav. 164, 161. XLI. And be it enacted, that the payment (c?) of any such bill as aforesaid (e) shall in no case preclude the Court or judge to whom application shall be made from referring such biU for taxation (_/) if the special circumstances of the case (5') shall in the opinion of such Court or judge appear to require the same, upon such terms and conditions and subject to such directions as to such Court or judge shall seem right, provided the application for such reference be made within twelve calendar months after payment (A). [d) The giving of security is for the purpose of this section equivalent to payment (ExpaHe Turner, 5 De Gr. M. & G. 540 : Sayer v. Wagataff, 5 Beav. 416 ; 13 L. J. Ch. 161 ; 14 L. J. Oh. 116 ; He Sarper, 10 Beav. 284 ; Re Currie, 9 Beav. 602 ; but see Re Brake, 22 Beav. 438; Re Harries, 13 M. AW. 3); but retainer by the solicitor without deKvery of a biU or settlement of accounts is not {Re Bignold, 9 Beav. 270 ; Re Steele, 20 L. J. Ch. 662 ; Re Street, 10 Eq. 166 ; ije Angove, 46 L. T. 280 ; Re Oawley and Whatley, 18 W. E. 1125'; Re Brady, 15 "W. R. 632). See, how- ever, Ex parte Bemming, 28 L. T. (0. S.) 144 ; Re Gregg, 30 Beav. 259 ; Ex parte Shachell, 2 De G. M. & G. 842 ; Allen v. Jarvis, 4 Ch. 616. Payment on account is not such payment as to require a special application where the application is made within twelve months from the delivery of the bill (Re Woodard, 18 W. R. 37). («) These words apply to all biUs mentioned in the previous part of the Act, in- cluding an unsigned bUl {Re Sutton, 11 Q. B. D. 377), and bills sought ta be taxed by third parties {Re Dotimes, 5 Beav. 425). (/) For form of order for taxation after payment, see Seton, 618. The application was formerly by petition served on the solicitor, and it was held that the petition should state when payment was made {Re Mash, 15 Beav. 83). It is now made by summons in chambers (R. S. C. 1883, Ord. LV. Pt. I. r. 2 (16) ). As to the effect of delay in making the application, see "laches and acquiescence," infra, note (A). {g) A great variety of cases have been decided as to the meaning of the words " special circumstances." They have generally been held to signify either " pres- sure, accompanied by some overcharge," or "overcharges or errors so gross as to amount to fraud." It will be convenient to consider each ground under a separate head. (1) Cases of " pressure accompanied by some overcharge " generally occur where a client has been practically obliged to pay a biU of costs without having an oppor- tunity of inspecting and examining it, either because — (a) The solicitor having deeds in his possession which he knew it was of import- ance to the client to obtain without delay, refused to deliver them up unless his bill was first paid {Re Pugh, 32 Beav. 173; 1 De G. J. & S. 673; 11 W. R. 762 and cases there cited; Re Elmslie, 12 Beav. 538 ; Re Alcock, 2 CoU. 92; Re Lett 31 Beav 488 ; 32 L. .T. Ch. 100 ; 11 W. R. 15 ; 7 L. T. 303, where the solicitor' deUvered two bills, one on a higher the other on a lower scale, and the client having paid the higher biU under pressure, the delivery of the lower one was held no defence to the order for taxation ; Re Phillpotts, 18 Beav. 84 ; Re Newman, 2 Ch. 707, where the defence was set up that the client had himself created the difficulty which made the deeds necessary to him) ; (P) Or because the solicitor having securities of the client in his possession threatened to enforce them unless the bill was paid at once (Re Ranee 22 Beav 177 ; Re Kinneir, 7 W. R. 175 ; Re Foster, 2 De G. F. & J. 106) • ' SOLICITORS ACT, 1843. 13 (7) Or, generally, -where the solicitor has taken undue advantage of the exigencies 6 & 7 Vict. of the client's position (Se Stephen, 2 Ph. 562 ; Mkes v. Warton, 6 Beav. 448 ; see q 73 gg 37.43 Se Wyehe, 11 Beav. 209). ' If the client has had an opportunity of examining and taxing the bill, these oases Generally do not apply, and even a we^ was held sufficient opportunity in Ee Wehhman, 11 taking an Beav. 319 (comp. Re Mash, 15 Beav. 83) ; a fortnight in Se Neate, 10 Beav. 181 ; advantage, three weeks in Re Neate, ibid. 57 ; and see Re Drew, ibid. 368 ; Re Currie, 9 Beav. 602 ; Mkes v. Warton, 5 Beav. 448 ; Re Soyle, 5 Be G. M. & G. 540 ; Re Browne, Exception 1 De G. M. & G. 322, where it was said that the pressure must have been of such ^'^^^ ™^'^* a kind as to have rendered it impossible or difficult to have had the costs taxed "^^ "^"- before payment and in the ordinary course; Re Barrow, 17 Beav. 547, where the opportunity M. E. said that the doctrine of pressure in oases of taxation after payment is not to to exanune be extended; and Re Heritage, Rx parte Docker, 3 Q. B. D. 726 ; 47 L. J. Q. B. 509 ; °"^- 26 W. R. 633; 38 L. T. 509. In all such oases the Court will only direct taxation if there is at least a reason- ggme over- able belief that if the bill be taxed, some of the charges will be disallowed [Re cJiarffe should Sladden, 10 Beav. 488) ; therefore some items of overcharge ought to be pointed ^jg proved, out (-Re Brady, 15 W. R. 632) ; though not necessarily such as to amount to fraud {Re Wells, 8 Beav. 416; Re Subbard, 15 Beav. 251 ; Re Abbott, 18 Beav. 393 ; Re Toale, 30 Beav. 170 ; Re Newman, 2 Ch. 707) ; and the absence of any affidavit or other proof as to items of overcharge wUl be a reason for dismissing the application (Ex parte Barton, 4 Be G. M. & G. 108 ; 16 Beav. 585). So the fact that the bill was paid under protest is only material if connected with Payment circumstances of pressure or overcharge (Re Neate, 10 Beav. 181-183); and where under protest a bill is paid under protest, the particular items objected to should, if possible, be pointed out (Re Davie, 8 W. R. 15) ; and see Re Dearden, 9 Ex. 210 ; Re Bayley, 18 Beav. 415. Payment for the purpose of staying proceedings in an action is no bar to taxation, Payment in R. S. C. 1883, Ord. III. x. 7, infra. stay of pro- (2) Where there is no pressure the Court will only order taxation after payment oeedings. on proof of " overcharges amounting to fraud " (Re Strother, 3 K & J. 518 ; Sorloch /,■, -n.^ j v. Smith, 2 M. & Or. 495 ; Re Dickson, 8 De G. M. & G. 655). lent ovct- Some of the particular charges relied on must be pointed out (Re Browne, 1 De G. „i,„__.„ / J,,>7, M. & G. 322, 333 ; Re Foster, 2 De G. F. & J. 105 ; Dzmt v. Dunt, 9 Beav. 146 ; Re „„f !,?Si,!»li TowU, 30 Beav. 170) ; but not all (Re Dawson, 28 Beav. 60S). ompresstire). Trifling items will be insufficient (Re Drake, 8 Beav. 123 ; Re Thompson, ibid. 237 ; Se Bayley, 18 Beav. 415). And generally the onus is on the appKcant to show that the charges under the Onus is on special circumstances were fraudulent ; see Re Walsh, 12 Beav. 490 ; Re Towle, 30 the client. Beav. 170, where charges for eight attendances in one day were held not sufficient to open a paid bill ; Se Boyle, 5 De G. M. & G. 540 ; 24 L. J. Ch. 71, where 240 letters were written in one year ; and Re Harle, 17 W. R. 21. But where the solicitor had before action oSered to take iOl. in lieu of a biU of Ciroum- 68Z., it was held a case for reference to taxation after twelve months (Hughes v. stances evi- Murray, 9 L. T. 93) ; and in Re Loughborough, 23 Beav. 439, the solicitor kept back dencing his bfll, and fraud was presumed against him. fraud. And when a considerable portion of the bill is for business which in the exercise Fraudulent of a fair and honest discretion ought never to have been done, the Court directs jtemg. taxation (Massie v. Drake, 4 Beav. 433 : Re Lees, 5 Beav. 410 ; Re Barrow, 17 Beav. 547 ; Re Dickson, 8 De G. M. & G. 655 ; Horloch v. Smith, 2 M. & Cr. 495 ; Waters ■v.tTaylor, ibid. 526 ; Re Brady, 15 W. R. 632) ; and see Cook v. JSarl of Rosslyn, 8 Jut. N. S. 875 ; Re Hook, 3 GifE. 372. a i 1 * j Where the overcharges evidence actual fraud, very slight circumstances will Actual iraud. induce the Court to re-open the taxation (Re Harding, 10 Beav. 250 ; Nohes v. Warton, 5 Beav. 448). So where the solicitor has also acted as a trustee (Todd v. Wilson, 15 L. J. Ch. 450 ; but see Stanes v. Barker, 10 Jur. 603). See further, with reference to great overcharges, in addition to the oases cited Gross over- above. Ex parte Andrews, 13 L. J. Ch. 222 ; Ex parte Hemming, 28 L. T. (0. S.) 144 ; charges. Sayer v. Wagstaff, 5 Beav. 415 ; Re Bennett, 8 Beav. 467 ; Re Sladden, 10 Beav. 488 ; Newton v. BoodU, 4 C. B. 359 ; Re Dearden, 9 Ex. 210. Where on a petition being presented for taxation of a paid bill, the solicitor offered to repay items objected to, and the petitioner nevertheless brought on his petition for hearing, the Court ordered taxation, treating those items as omitted (Re CatUn, 23 Beav. 412 ; but see Ex parte Hemming). See further, as to special circumstances. Re Whicher, 13 M. & W. 549 ; Re Wilton, 13 L. J. Q. B. 17, and note (r), ante, p. 7. (h) As to the mode of calculating the time, see Blunt v. Heslop, 8 Ad. & EU. 577, Twelve cited in note (e), p. 4 ; and in cases where security has been given, see cases cited months after in note (d), p. 12. When (under the former practice) the application was by petition, payment, 14 SOLICITORS ACT, 1843. 6 & 7 Viet. 0. 73, sa. 37-43 strictly calculated, an absolute bar to taxa- tion. Laches and acquiescence. Wliere time does not run against client. He-opening biUs of costs, by action. Power for taxing officer to request officers of other Courts to tax por- tions of the bill. Applications for taxing bill of costs, how to be made. Certificate of taxation to be final. the petition was considered as presented on the day of answering it {Sayer v. Wagataff, 5 Beav. 41S). Where a petition was presented within twelve months, but no order was made, the Court refused to allow it to stand over for amendment, twelve months having in the meantime expired [Barwell v. Brooks, 7 Beav. 345). The twelve months are an absolute bar to the appHoation if made under the Act {Me Barper, 10 Beav. 284 ; Ee Soumes, 5 Beav. 425 ; Binns v. Sey, 1 D. & L. 661 ; 13 L. J. Q. B. 28 ; Hx parte Hemming, 28 L. T. (0. S.) 144 ; Mx parU Pemberton, 2 De G. M. & G. 960) ; unless, perhaps, actual fraud be shown [ibid, per Lord Cran- worth) ; and the rule is the same in the case of an application by a third party or a cestui que trust, see ante, pp. 9, 10. The lapse of less than the twelve months may be an objection to granting the application. {Re Bayley, 18Beav.415; iJ« Pjj^A, 32 Beav. 173; onappeal, llW.E. 762 ; Re JBroume, 1 De G-. M. & G. 322 ; Ee Whielwr, 13 M. & W. 549.) Where a client having fresh advice kept the bill two months in his possession and then paid it, such delay was held by Vice -Chancellor Wood to be fatal to an appli- cation for taxation on the ground of overcharge ; but the Lords Justices, being of opinion that the biU was originally paid under circumstances amounting to pressure, reversed this decision, and ordered taxation of the bill {Re Foster, 2 De G. I*. & J. 105 ; 8 W. B. 620 ; and see note (;■), p. 7, ante). But the Court may order delivery of the bill, though more than twelve months have elapsed from its payment, the solicitor having on payment undertaken to deliver the bills, but neglected to do so {Ee Mljamhe, 9 Beav. 402 ; Ee Bailey, 34 Beav. 392 ; Re Fisher, 18 Beav. 183). As to re-opening bills of costs by action, see Barwell v. Brooks, 8 Beav. 121 ; Blagram v. Routh, 2 K. & J. 509 ; 8 De G. M. & G. 620 ; FoUy v. Smith, 12 Beav. .154. In Turner v. Sand, 27 Beav. 561, a solicitor delivered a general estimate of costs due to him, without specifying the particulars, and the client signed a memo- randum agreeing to the statement, and requesting a third person, to whom he bad given his _aoceptances, to pay it ; and a bill filed by tbe client three years after- wards for delivery and taxation was dismissed with costs. See, also, Todd v. Wilson, 15 L. J. Ch. 450 ; Stanes v. Parker, 10 Jur. 603 ; Watson v. Eodwell, 7 Ch. D. 625 j on appeal, 11 Ch. D. 150 ; 48 L. J. Ch. 209 ; 27 W. E. 265 ; 39 L. T. 614, where paid bills were set aside after a lapse of two years. XLII. And be it enacted, that in all cases in wliich. such. hiU shall have been referred to be taxed and settled, the officer to ■whom such reference is made shall be at liberty to request the proper officer of any other Court having such an officer to assist him in taxing and settling any part of such bill, and such officer so requested shall thereupon proceed to tax and settle the same, and shall have the same powers and may receive the same fees in respect thereof as upon a reference to him by the Court of which he is such officer, and shall return the same, with his opinion thereon, to the officer who shall have so requested him to tax and settle the same ; and the officer to whom such reference is made shall not be paid any fee for that portion of the bill which shall have been so taxed and settled by the officer of such other Court at his request {i). (i) See R. S. C. 1883, Ord. LXV. infra, and notes, as to the taxing masters. XLIII. And be it enacted, that all applications (A) made under this Act to refer any such bill as aforesaid to be taxed and settled, and for the delivery of such bill, and for the delivering up of deeds, docu- ments, and papers shall be made in the matter of such attorney or solicitor {I) and that upon the taxation and settlement of any such bill the certificate of the officer by whom such biU shall be taxed shall (unless set aside or altered by order, decree, or rule of Court) be final and conclusive as to the amount thereof, and payment of the amount SOLICITORS ACT, 1843. 15 certified to be due and directed to be paid may be enforced (m) 6 & 7 Vict, according to the course of the Court in which such reference shall be °- 73, as. 37-43 made ; and in case such reference shall be made in any Court of common law, it shaU. be lawful for such Court or any judge thereof to Judgment order judgment to be entered up for such amount, with costs, unless ^^^ the retainer shall be disputed, or to make such other order thereon as such Court or judge shall deem proper. (i) By R. S. C. 1883, Ord. LV. Pt. I. i-. 2 (15), all special appUoations for Special appU- taxation and delivery of bills and delivery of papers under the Act must be made cation for by summons, and this applies, though the client also asks that a sum of money taxation, improperly retained by the solicitor may be refunded {He May, 34 Beav. 132 ; 34 L. J. Ch. 236 ; 13 W. E. 377 ; Re Edmunds, 19 "W. E. 104). (I) As to the title of the application, seeiJe Vallanoe, 8 Seott, N. R. 232 ; Re Hair, Title and form ibid. 231 ; Re Walton, 4 K. & J. 78. It need not be headed in the matter of the of application. Act ifbid.). It must state the time of payment, if presented after payment (Re Mash, 15 Beav. 83). (m) An action brought after taxation has been ordered is a contempt [Re Campbell, Action after 3 De &. M. & G. 585). As to enforcing the order, see R. S, 0. 1883, Ord. XLII. taxation is a infra; DanieU, p. 1262. contempt. SOLICITOES ACT, 1860. 23 & 24 Vict. c.l27,SB.27-29 23 & 24 VICT., Cap. 127, ss. 27—29. An Act to amend the Laws relating to Attorneys, Solicitors, Proctors, and Certificated Conveyancers. [28th August, I860.] XXVII. Whenever a decree or order is made by the Court of Interest on Chancery in which the payment of any costs previously taxed, either ""^ °' in the suit or proceeding in which such decree or order is made, or in any other suit or proceeding is ordered, and whether the certificate of such previous taxation have been made before the passing of this Act, or be made thereafter, it shall be lawful for the Court or judge making such decree or order to order and direct the amount of such costs, as taxed, including the costs of taxation as ascertained by the said certificate, to be paid with interest (o) thereon at the rate of 4?. per cent, per annum, from the date of the certificate, the amount of such interest to be verified by affidavit, and to be payable and re- coverable out of the same fund or in the same manner as the amount of such costs. The Act is now called "The Solicitors Act, 1860 ; " see the Solicitors Act, 1877, Short title. 40 &41 Vict. 0. 25, s. 1. (fl) It seems that this section only enables the solicitor, and not a party to the Only solicitor suit, to claim interest (Jenner v. Morris, 11 W. R. 943). Orders were made under can apply, the Act in cases where payment of costs had been unavoidably delayed ; see Carter V. Carter, 2 N. R. 512; 8 L. T. 692; Vox v. Charlton, 6 N. R. 352; Re Campbell, 19 "W. R. 427. "Where there were mortgages on the estate charged with the costs the Court declined to make any order until there had been an inquiry as to incum- brances [Twynam v. Porter, W. N. (1872), III). In directing payment of a mort- Interest on 16 SOLICITORS ACT, 1860. 23 & 24 Vict, gagee's principal, intereBt and ooBts out of the purchase-money of the mortgaged c.l27,es.27-29 property, the Court directed interest to be paid on the costs £com the date of the '- certificate [Whitfield v. Roberts, 9 "W. E. 844). By the Attorneys and Solicitors disburse- Act, 1870, 33 & 34 Vict. c. 28, s. 17, infra, interest may be allowed on taxation in ments. respect of disbursements and advances ; and see the Solicitors' Remuneration Act, 1881, 44 & 48 Vict. c. 44, s. 5. Power for Court or judge to charge pro- perty reco- vered or pre- served with payment of costs. Act to be construed liberally. Town agent. Personal representative of solicitor. Bmployment by infant ; by married woman. Order, where to be obtained. XXVIII. In every case in which an attorney or solicitor (6) shall he employed (c) to prosecute or defend any suit, matter, or proceeding in any Court of justice, it shall he lawful for the Court or judge {d) hefore whom any such suit, matter, or proceeding has heen heard, or shall be depending, to declare such attorney or solicitor entitled to a charge (e) upon the property recovered or preserved {f) and upon such declaration being made, such attorney or solicitor shall have a charge upon and against and a right to payment out of the property, of what- soever nature, tenure, or kind the same may be, which shall have been recovered or preserved through the instrumentaKty of any such at- torney or solicitor, for the taxed costs, charges, and expenses of or in reference to such suit, matter, or proceeding ; and it shall be lawful for such Court or judge to make such order or orders for taxation of and for raising and payment of such costs, charges, and expenses out of the said property as to such Court or judge shall appear just and proper ; and all conveyances and acts done to defeat, or which shall operate to defeat, such charge or right, shall, unless made to a bond fide purchaser for value without notice, be absolutely void and of no effect as against such charge or right {g) : Provided always, that no such order shall be made by any such Court or judge in any case in which the right to recover payment of such costs, charges, and ex- penses is barred by any Statute of Limitations (Ji). The Act is to be construed liberally {SchoUfield v. Zookwood, 7 Eq. 83 ; Serrie v. Sowitt, 9 Eq. 1 ; 39 L. J. Ch. 119 ; BaUe v. Baile, 13 Eq. 497). (i) The town agent of a country solicitor may be declared entitled to a charge for an unascertained balance due to Mm from the country solicitor (Tardrew v. Howell, 3 aiff. 381 ; 7 Jut. N. S. 1120 ; 10 W. R. 32). Attorneys and solicitors are now styled "solicitors of the Supreme Court" (Judicature Act, 1873, s. 87). The charge may be declared in favour of the legal personal representative of a solicitor [Baile v. Baile) . [e) An infant's property can be charged under the Act ; but where the property recovered or preserved consists of a fund, no part of it will be actually paid to the solicitor till the infant attains twenty-one, and has an opportunity of disputing the charge [Greer v. Young (C. A.), 24 Ch. D. 545). See further as to charging the property of infants, Baile v. Baile; Bonser v. Bradshaw, 30 L. J. Ch. 159 ; 9 W. R. 229 ; 8. G. on appeal, 10 W. R. 481 ; 8. C. on further hearing after the infant had attained twenty-one, 4 Gifi. 260 ; 9 Jur. N. S. 1048. An infant's costs can be made a charge in an action [Pritchard v. Roberts, 17 Eq. 222). A married woman's pro- perty, though subject to a restraint on anticipation, may be charged [Se Keane, Burnley v. Desborough, 12 Eq. 115). [d) The order lleolaring the charge must be made in that branch of the Court to which the suit is attadied, and may be made though the suit has come to an end [Seinrich v. Sutton, 6 Ch. 865 ; Jones v. Frost, 7 Ch. 773). It must be made by the judge who tried the case [Siggs v. 8chrader, 3 C. P. D. 252 ; 47 L. J. C. P. 426 ; 26 W. R. 831 ; Porter v. West, 60 L. J. Ch. 231 ; W. N. (1880), 195 ; 29 W. R. 236 ; 43 L. T. 569) ; and where the action, though intituled in the Chancery Division, is tried before a judge and jury, the application must be made to the judge who tried the action and not to the Chancery judge [Oweny. Henshaw, 7 Ch. D. 385 ; 47 L. J. Ch. 267 ; 26 W. R. 188). "Where the cause was tried in the Court of Common Pleas at Xiancaster, the application for a charging order was rightly made to the Common Pleas Division [Catloic- v. Catlou; 2 C. P. D. 362, SOLICITORS ACT, 1860. 17 followmg mison v. Mood, 3 H. & C. 148 ; 33 L. J. Ex. 204). The Court in which 23 & 24 Vict, the action -was brought may make the order notwithstanding a decree for adminis- o.l27, S8.27-29 tration (Wikon v. Mood; Catlow v. Catlow). '■ The order may be made either on petition {Brown v. Trotman, 12 Ch. D. 880 ; 48 Order may be li. J. Ch. 862 ; 41 L. T. 179 ; 28 W. E. 164) or on summons (Clover v. Adams, 6 made on Q. B. D. 622 ; Bamer v. GiUs, Giles y. ffmner (M. R.), 11 Ch. D. 942 ; 48 L. J. Ch. petition • 508 ; 41 L. T. 270 ; 27 W. R. 834) ; and the other parties to the action should not be served {Brown v. Trotman). The petition or summons must be intituled in the °' summons, action, but not necessarily in the matter of the Act or of the solicitor {Samer v. Giles, intituled in Giles V. Mamer). A solicitor who has properly discharged himself may obtain an the action, order {Clover v. Adams). As to the form of the order see Seton, p. 643 ; Pilclier v. jiqjjjj gf Arden, 7 Ch. D. 318 ; 27 W. R. 273 ; and as to the time when an application may be gjijgj made for raising the amount charged by a sale, see JRe Green, 26 Ch. D. 16 ; Jackson v. Smith, W. N. (1884), 151. Where an order had been made charging a fund that had been paid into Court, and the solicitor took out a summons calling on the party to show cause why the fund should not be paid out to him, and the party evaded service of the summons, substituted service was allowed {Sunt v. Austin, 9 Q. B. D. 598). In making the order it is the duty of the Court to limit it to costs properly incurred {Emdm v. Carte, 19 Ch. D. 311 ; 30 W. R. 17 ; 45 L. T. 328). («) As to solicitor's lien generally, see Fisher, 1 94, seq. ; Daniell, 1975; Morgan and As to soKci- Wurtzburg on Costs, 551. The lien is of two kinds; (1) A general lien on all tor's hen papers and documents of the client which may happen to be in the solicitor's hands generally ; in the way of business ; this Ken extends to all professional costs, but cannot be Sen of two actively enforced. (2) A lien on a fund recovered in an action ; this lieu extends kinds : only to the costs of the particular suit under which the fund arises, but to this j Qn papers, extent the solicitor may actively enforce it. „ On fund A solicitor who conducts a cause to its conclusion in the place of one who by -loovered arrangement with his client retires from conducting it, has priority for his costs in case of a deficiency of assets {Cormaek v. Beisley, 3 De Q. & J. 157 ; but see Ee Priorities of Aiidley Sail Co., 6 Eq. 245, as to priorities of successive solicitors). solicitors. A solicitor who begins a cause, engages to continue to act till the end of it ; and Solicitor re- if he refuses to go through with it he has no hen and cannot even bring an action fusing to for his bin {Cresswell v. Byron, 14 Ves. 272 ; Commerell v. Foyntm, I Swanst. 1). proceed. But see Ee Hall and Barker, 9 Ch. D. 538, ante, p. 7. If a solicitor discharges himself pendente lite, he must deliver up all necessary -Wliere papers to the new solicitor without prejudice to the Hen, the latter undertaking to solicitor return them on the conclusion of the action {Bobins v. Goldingham, 13 Eq. 440 ; discharges Seslopy. Metcalfe, 3 My. & Cr. 183 ; 7 L. J. Ch. 49) ; and see Colegrave v. Mcmley, himself. T. & R. 400 ; Wilson v. Emmett, 19 Beav. 233 ; Webster v. Ze Sunt, 9 W. R. 804 ; Be S., 15 W. R. 168 ; Cane v. Martin, 2 Beav. 584. For the practice where no suit is pending see Bawlinson v. Moss, 7 Jur. N. S. 1053 ; 9 W. R. 733. A solicitor who refuses or neglects to proceed is considered as having discharged -^ytat is a himself {Bobins v. Goldingham ; Hannaford v. Sannaford, 19 W. R. 429 ; 24 L. T. 86) ; discharge by and see Be Williams, 28 Beav. 465 ; Steele v. Seott, 2 Hog. 141 ; and a dissolution of jj^g solicitor, partnership is a discharge by the solicitors ; see Cholmondeley v. Clinton, 19 Ves. 273 ; T-n-.-i.-i,-™ Griffiths y: Griffiths, 2 Ha. 587 ; 12 L. J. Ch. 397 ; Seott v. Fleming, 9 Jur. 1085 ; ^ !,™^e°. Bawlinson v. Moss. As to the effect of alterations in a firm of solicitors, see Felly v. , ,^ Waihen, 7 Ha. 361 ; 18 L. J. Ch. 285 ; 14 Jur. 9 ; Ee Forshaw, 16 Sim. 121. ^• When a solicitor is discharged by his client pendente lite, he is not bound to give -^yhere the latter any facilities for prosecuting the suit, and may to some extent embarrass goUcitor is him by retaining papers; see Bozonv. Bolland, 4My. &Cr. 354; Lordy .Wormleighton, discharged Jac. 680 ; Griffiths v. Griffiths, 2 Ha. 687 ; Be Smith, 9 W. R. 396 ; Be Faithfull, ^„ client. 6 Eq. 325 ; Piloher v. Arden, Be Brook, 7 Ch. D. 318. But he cannot stop the progress of an administration suit or otherwise obstruct the course of the Court ; see Belaney v. Ffreneh, 8 Ch. 918 ; 43 L. J. Ch. 312 ; Be Boughton, Boughton v. Boughton, 23 Ch. D. 169 ; 31 W. R. 617 ; Clifford v. Turrill, 2 De G. & S. 1 ; Bird v. Heath, 6 Ha. 236 ; Simmonds v. Great Eastern Bail. Co., 3 Ch. 797 ; 16 W. R. 1100. If he is discharged by a person who comes in under but adversely to_ the client, e.g.B, trustee in bankruptcy, it is clear that he cannot refuse to deliver up aU necessary documents {Simmonds v. Great Eastern Bail. Co.) ; and see Ee South Essex Co., i Ch. 215 ; Boss v. Laughton, 1 V. & B. 349 ; Ee Toleman and England, Ex parte Bramble, 13 Ch. D. 885. , . , , , ^ As to the lien of the solicitor of a company which is ordered to be wound up, see Winding-up. Ee South Essex Co. ; Be Capital Fire Insurance Co., 24 Ch. D. 408, where Belaney v. Ffreneh and Boughton y. Boughton are diBtsoBBed. ,.. . The town agent has a lien on the client's papers for the amount due to him from Lign of town . the country solicitor, but only to the extent of the amount due to the latter from agent, the cEent ; and if the cUent pays the country soUcitor without notice of the town agent's claim the lien is gone {Ward v. Hepple, 15 Ves. 297 ; Ex parte Steele, 16 Ves. 164 • Waller v. Holmes, 1 J. & H. 239 ; Featfield v. Barlow, 8 Eq. 61 ; 38 L. J. Ch. 18 SOLICITORS ACT, 1860. 23 & 2i Viot 310 ; 20 L. T. 217 ; Cockayne v. Harrison, 15 Eq. 298 ; 42 L. J. Ch. 660 ; Vyse v. o 127 S9 27-29 Foster, 32 L. T. 219 ; afSrmed, 23 W. E. 413). , „ ^i, i j: • ^' ' (/) As to tte meaning of "property recovered or preserved," see the remarks of " Property Jessel, M. E., and MeUish, L. J., in Foxon v Gascoigne, 9 Ch 654 ; 43 L. J. Ch. recovCTed or 729 ; the section extends to a chose in action {Birchall v. Tugin, Li.K. 10 U. ^■J^')- preserved " Property has been held to be recovered or preserved in the followmg cases : Wnere ■ a cestui que trust obtained the appointment of a receiver in a suit against a trustee though the suit was subsequently compromised (Twynam v. Porter, 11 -tq. 181 j 40 L J Ch. 617; and see -B«ife v. Baile, 13 Eq. 497); where a mortgagee obtained a foreclosure decree {Wilson v. Bound, 4 Gifi. 416 ; 10 Jur. N. S. 34) ; where land was recovered in ejectment [Wihon v. Hood, 33 L. J. Ex. 204 ; 3 H. & C. 148 ; 10 Jur. N. S. 592) ; where the client was defendant in a foreclosure suit, the result ot which was that the chance of foreclosure was lessened [Scholefield v. lockwood, 7 Eq. 83) ; where a suit was successfully conducted against an incumbrancer whose incumbrance, though valueless, was a cloud upon the title [Jones v. Frost, 7 Ch. TIS) \ where judgment was recovered in an action of detinue, and the proceeds of the goods were subsequently paid into Court in an administration suit {Catlow v. Cathw, 2 C. P. D. 362 ; 25 W. E. 866) ; where the defendant paid money into Court in the action (CUver v. Adams, 6 Q. B. D. 622; Emden v. Carte, 19 Ch. U. 311 ; .45 L. T. 328 ; 30 "W. E. 17 ; and see Jackson v. Smith, "W. N. (1884), 151) ; where an order was made under the Declaration of Titles Act, 1862 (JPritehard v. Soberts, 17 Eq. 222) ; and see also Smith v. Winter, W. N. (1870), 34 ; 18 W. E. 447 ; Be Kerne, Lumley v. Desborough, 12 Eq. 115 ; 40 L. J. Ch. 617 ; Morris v. Francis, cited 12 Sol. J. 718 ; The Phillipine, L. E. 1 A. & E. 309 ; 15 "W. E. 462. Where, however, a decree was made for administration and the appointment of a new trustee, and the decree was carried into chambers and the accounts brought in, but all further proceedings were then stopped. Lord Selbome, L. C, held that no property had been recovered or preserved (Pinkerton v. Boston, 16 Eq. 490 ; 42 L. J. Ch. 878 ; and see Pierson v. Knutsford Estates Co., 13 Q. B. D. 666 ; 32 W. E. 451). An eaeement though preserved is not "property" within the section [Foxon V. Gascoigne, 9 Ch. 654 ; 43 L. J. Ch. 729). Where new trustees had been appointed on petition, and the costs, charges and expenses of all parties had been ordered to be paid, the Court refused to charge the property under the Act with the costs of the petition (iJ« Viney, W. N. (1868), 243; 18 L. T. 851). See also Harrison v. Cornwall Bail. Co., 32 W. E. 748. Charge ex- The solicitor is entitled under the Act to a charge upon the whole of the property tends to the he has recovered or preserved, and his right is not necessarily limited by the extent whole of the of his client's interest ; his right, in fact, is that of a salvor [Bulley v. Bulky [G. A.), property 8 Ch. D. 479 ; 26 W. E. 310, 638 ; Bailey v. Birchall, 2 H. & M. 371 ; 11 Jur. N. S. recovered. 57 ; Porter v. West, 60 L. J. Ch. 231 ; 29 W. E. 236 ; 43 L. T. 569 ; W. N. (1880), 195 ; Greer v. Toimg, (0. A.), 24 Ch. D. 546 ; Fmden v. Carte (C. A.), 19 Ch. B. 311 ; 30 W. E. 17 ; 45 L. T. 328 ; Charlton v. Charlton, W. N. (1883), 141) ; Berrie v. Howitt, 9 Eq. 1, is overruled. Where no order had been made for the payment of the costs out of the estate, Ery, J., held that the solicitors were only entitled to an order for a charge on the share of their client [Lloyd v. Jones, 27 W. E. 655 ; 40 L. T. 514). The section only applies to the costs of the suit in which the property has been recovered or preserved [Ex parte Thompson, 3 L. T. 317). Priority of (^) The solicitor's lien under this section has priority over all charges created hy lien rmder the the client [Haynes v. Cooper, 33 Beav. 431 ; and see Baile v. Baile, 13 Eq. 497, 509 ; statute. Twynam v. Porter, 11 Eq. 181 ; The Heinrich, L. E. 3 A. & E. 605) ; even though the client has assigned his interest with the knowledge of the solicitor (Pitcher v. Arden, 7 Ch. D. 318; 47 L. J. Ch. 479 ; 26 W. E. 273; 38 L. T. Ill) ; and see also Faithfull v. Ewen, 7 Ch. D. 495 ; 47 L. J. Ch. 457 ; 26 W. E. 270 ; 37 L. T. 805. As to priority as between the solicitor and an execution creditor, see Birchall V. Pugin, L. E. 10 C. P. 397 ; Shippey v. Grey, 49 L. J. 624 ; 28 W. E. 877 ; 42 L. T. 673 ; The Leader, L. E. 2 A. & E. 314 ; Hamer v. GiUs, Giles v. Hamer, 11 Ch. D. 942; 48 L. J. Oh. 508; 27 W. E. 834; 41 L. T. 270; Hallow v. Garrold, 13 Q. B. D. 643 ; afBrmed W. N. (1884), 231. Statute of (A) The Statute of Limitations will not begin to run against a solicitor in respect Limitations. of his claim for a charge under the Act while the suit is pending, and he remains the solicitor on the record [Baile v. Baile, 13 Eq. 497, 609). Taxation and XXIX. In every case in •wHch an attorney or solicitor has been or deceased luna- shall be employed to prosecute or oppose any inquiry whether a person tic's costs. is a lunatic, idiot, or of unsound mind, and incapable of managing himself or his affairs, or in or about any proceedings consequent upon such inquiry, and the costs of such attorney or solicitor have not been SOLICITOES ACT, 1860. 19 paid in the lifetime of sueli person, it shall he lawful for the Lord 23 & 24 Vict. High Chancellor or the Lords Justices, or other the person or persons °-127,a8.27-29 intrusted by Her Majesty with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind {hh), -to make such and the like orders and to exercise the like power and authority for taxation of and for raising and payment of such costs after the death of such person as could or might have been exercised or made in his lifetime (i) ; and such orders and proceedings shall he as valid and effective to aU intents and purposes as if made in the lifetime of the lunatic : Provided always, that it shaU. not he lawful for the Court or judge to make any such order bat within six years next after the right to recover such costs, charges, and expenses shall have accrued {k). {hh) See now Jud. Act, 1875, s. 7, infra. _(») See 16 & 17 Vict. o. 70 (Lunacy Ilegalation Act, 1853), s. 145, wliioh pro- Costs in Tides that costs incurred under the Act may be charged on the lunatic's property, lunacy. (k) When ^ lunatic died in June, 1853, and the solicitor in the lunacy — having -Trrit- • obtained an order for taxation of his costs in the lunacy matter in February, 1854, Witlun six and completed such taxation in February, 1855 — in October, 1860, presented a peti- y^^"^^- tion for an order to charge the lunatic's estate under this section, it was held by L. J. Knight Bruce that the right to recover accrued on the death of the lunatic ; and by Jj. J. Turner that it accrued on the order for taxation being obtained. More than six years having elapsed since either of those periods, the petitioner was held to be barred of all remedy under the concluding proviso of the section {Ex parte Turner, Me Cmnming, 2 De G-. F. & J. 376 ; 9 W. E. 213). ATTOENEYS AND SOLICITOES ACT, 1870. 33 & 34 Vict. ' c. 28. 33 & 34 VICT. Cap. 28. An Act to amend the law relating to tlie remuneration of Attorneys and Solicitors. [14tli July, 1870.] Wheeeas it is expedient to amend the law relating to the remune- ration of attorneys and^ solicitors : Be it enacted, &c., as foUows : Preliminary. I. This Act may be cited as "The Attorneys and Sohcitors Act, Short title. 1870." n. This Act shall not extend to Scotland. Extent of m. In the construction of this Act, unless where the context other- ^ " ' . .r. . -I . n Interpretation wise requires, the words following have the significations hereinafter of terms. respectively assigned to them ; that is to say, The words " attorney or solicitor" {a) mean an attorney, solicitor, or proctor (a), qualified according to the provisions of the Acts for the time being in force, relating to the admission and qualification of attorneys, solicitors, or proctors : " Person " includes a corporation : o2 20 ATTORNEYS AND SOLICITORS ACT, 1870. 33 & 34 Vict, c. 28. " Client" includes any person who, as a principal or on behali of another person, retaias or employs, or is about to retain or employ, an attorney or solicitor, and any person who is or may he liable to pay the bill of an attorney or solicitor for any services, fees, costs, charges, or disbursements (6). (a) Attorneys and solicitors are now styled " Solicitors of the Supreme Court." (Judicature Act, 1873, s. 87.) Section 20 of the Act empowered solicitors to per- form acts appertaining to the office of proctor. This section is now repealed, and a more comprehensive provision to the same effect suhstituted. (Solicitors Act, 1877, ss. 17, 23.) (4) NotwiljhstandiDg this definition of the word " client," the Act does not apply to accounts between country solicitors and their town agents (Ward v. Myre, 15 Oh. D. 130 ; 49 L. J. Ch. 657 ; 28 "W. R. 712 j 43 L. T. 526). The remune- ration of attorneys and solicitors may be fixed by agreement. Amount pay- able under agreement not to be paid until allowed by taxing officer. Agreement must be signed by both, parties. Part I. — Agreements between Attorneys or Solicitors and their Clients. IV. An attorney or solicitor may make an agreement in writing (c) ■with his client respecting the amount and manner of payment for the whole or any part of any past or future services, fees, charges, or dis- bursements in respect of business done or to be done by such attorney or solicitor, whether as an attorney or solicitor or as an advocate or conveyancer, either by a gross sum, or by commission or per-centage, or by salary or otherwise, and either at the same or at a greater or at a less rate as or than the rate at which he would otherwise be entitled to be remunerated, subject to the provisions and conditions in this part of this Act contained : Provided always, that when any such agree- ment shall be made in respect of business done or to be done in any action at law or suit in equity, the amount payable under the agree- ment shall not be received by the attorney or solicitor untU the agreement has been examined and allowed by a taxing ofBlcer of a Court having power to enforce the agreement, and if it shall appear to such taxing officer that the agreement is not fair and reasonable he may require the opinion of a Court or a judge to be taken thereon by motion or petition {d), and such Court or judge shall have power either to reduce the amount payable under the agreement or to order the agreement to be cancelled and the costs, fees, charges, and dis- bursements in respect of the business done to be taxed in the same manner as if no such agreement had been made. (c) An agreement under the Act to take a fixed sum for costs must be in writing amd signed by both solicitor and client (Re Lewis, Hx parte Munro, 1 Q. B. D. 724; 46 L. J. Q. B. 816 ; 24 "W. R. 1017 ; Se Raven, 30 "W. R. 134 ; 45 L. T. 742 ; and see ReFemandes, W. N. (1878) 57). An agreement to charge the client nothing if the action is lost, and to take nothing for costs out of any money that may be awarded to the client in the action, need not be in writing (Jennings v. Johnson, L. R. 8 C. P. 426). ( d) The opinion of the Court cannot be required to be taken before some money is payable under the agreement [Re Attottteys Act, 1870, 1 Ch. D. 573 ; 44 L. J. Ch. 47; 24 "W. R. 38). Saying of V. Such an agreement shall not affect the amount of, or any rights third parties. °^ remedies for the recovery of, any costs recoverable from the client by any other person, or payable to the client by any other person, and ATTORNEYS AND SOLICITORS ACT, 1870. 21 any such other person may require any costs payable or recoverable by 33 & 34 Viot. him to or from the client to be taxed according to the rules for the time °- ^^- being in force for the taxation of such costs, unless such person has otherwise agreed ; Provided always, that the client who has entered into such agreement shall not be entitled to recover from any other person under any order for the payment of any costs which are the subject of such agreement more than the amount payable by the client to his own attorney or solicitor under the same. VI. Such an agreement shall be deemed to exclude any further Agreements claim of the attorney or solicitor beyond the terms of the agreement in f^fft^^"^^'^® respect of any services, fees, charges, or disbursements in relation to claims, the conduct and completion of the business in reference to which the agreement is made, except such services, fees, charges, or disburse- ments, if any, as are expressly excepted by the agreement. Vn. A provision in any such agreement that the attorney or Reservation solicitor shall not be liable for negligence, or that he shall be relieved biiity^or^^" from any responsibility to which he would otherwise be subject as negUgenee. such attorney or solicitor, shall be wholly void. V 1 IT. No action or suit shall be brought or instituted upon any such Examination agreement ; but every question respecting the validity or effect of any ^gnt of°'^*'^' such agreement may be examined and determined, and the agreement agreements, may be enforced or set aside, without suit or action, on motion or peti- tion of any person, or the representative of any person, a party to such agreement, or being or alleged to be liable to pay, or being or claiming to be entitled to be paid, the costs, fees, charges, or disbursements in respect of which the agreement is made, by the Court in which the business, or any part thereof, was done, or a judge thereof, or if the business was not done in any Court, then where the amount payable under the agreement exceeds fifty pounds, by any superior Court of law or equity, or a judge thereof, and where such amount does not exceed fifty pounds, by the judge of a County Court which would have jurisdiction in an action upon the agreement (e). {«) This section is intended to prevent actions to recover the remuneration agreed upon in lieu of costs when the work has been done, and does not apply to the case of an action for refusing to allow the solicitor to do the work and earn the remune- ration [Reea v. Williams, L. R. 10 Ex. 200 ; 44 L. J. Ex. 116 ; 23 W. R. 5, 50 ; 32 L. T. 462). IX. Upon any such motion or petition as aforesaid, if it shall appear Improper to the Court or judge that such agreement is in aU respects fair and ^^^"^^ reasonable between the parties, the same may be enforced by such aside. Court or judge by rule or order in such manner and subject to such conditions, if any, as to the costs of such motion or petition as such Court or judge may think fit ; but if the terms of such agreement shall not be deemed by the Court or judge to be fair and reasonable, the same may be declared void, and the Court or judge shall thereupon have power to order such agreement to be given up to be cancelled, and may direct the costs, fees, charges, and disbursements incurred or 22 ATTORNEYS AND SOLICITORS ACT, 1870. 33 & 34 Viot. c. 28. Agreements may be re- opened after payment in Bpeoial cases. Prohibition of certain stipulations. Not to give validity to chargeable in respect of the matters included therein to be taxed in the same manner and according to the same rules as if such agreement had not been made ; and the Court or judge may also make such order as to the costs of and relating to such motion or petition, and the pro- ceedings thereon, as to the said Court or judge may seem fit. X. When the amoimt agreed for under any such agreement has been paid by or on behalf of the client, or by any person chargeable ■with or entitled to pay the same, any Court or judge having jurisdic- tion to examine and enforce such an agreement may, upon application by the person who has paid such amount, within twelve months after the payment thereof, if it appears to such Court or judge that the special circumstances of the case require the agreement to be re-opened, re- open the same, and order the costs, fees, charges, and disbursements to be taxed, and the whole or any portion of the amount received by the attorney or solicitor to be repaid by him, on such terms and condi- tions as to the Court or judge may seem just. "Where any such agreement is made by the client in the capacity of guardian, or of trustee under a deed or will, or of committee of any person or persons whose estate or property will be chargeable with the amount payable under such agreement, or with any part of such amount, the agreement shall before payment be laid before the taxing officer of a Court having jurisdiction to enforce the agreement, and such officer shall examine the same, and may disallow any part thereof, or may require the direction of the Court or a judge to be taken thereon by motion or petition ; and i£ in any such case the client pay the whole or any part of the amount payable under the agree- ment, without the previous aUowauce of such officer or Court or judge as aforesaid, he shall be liable at any time to account to the person whose estate or property is charged with the amount paid, or with any part thereof for the amount so charged ; and if in any such case the attorney or solicitor accept payment without such allowance, any Court which would have had jurisdiction to enforce the agreement may, if it think fit, order him to refund the amount so received by him under the agreement. XI. Nothing in this Act contained shall be construed to give validity to any purchase by an attorney or solicitor of the interest, or any part of the interest, of his client in any suit, action, or other contentious proceeding to be brought or maintained, or to give" validity to any agreement by which an attorney or solicitor retained or employed to prosecute any suit or action, stipulates for payment only in the event of success in such suit, action, or proceeding (/"). (/) It seems that an agreement giving the solicitor in case of success what is equivalent to one-tenth of the property recovered, is void for champerty (per Jessel, M. R. ; lie Attorneys Act, 1870, 1 Ch. D. 573 ; 44 L. J. Ch. 47 ; 24 W R 38). But an agreement to charge the client nothing if he lost the action, and to take nothing for costs out of any money recovered in the action, is good (Jenninga v Johmon, Ii. R. 8 C. P. 425). XII. Nothing in this Act contained shall give validity to any ATTORNEYS AKD SOLICITORS A.CT, 1870. 23 disposition, contract, settlement, conveyance, delivery, dealing, or 33 & 34 Viot. transfer, which, may be void or invalid against a trustee or creditor °- ^^- in bankruptcy, arrangement, or composition, under the provisions of contracts, &c. the laws relatina: to bankruptcv. '"^l''^ may be YT-ry -vTTi void m bank- -X-lii. Wnere an attorney or solicitor has made an agreement with ruptoy. his client is pursuance of the provisions of this Act, and anything Provision in has been done by such attorney or solicitor under the agreement, and or^noapacW before the agreement has been completely performed by him, such of the attorney or solicitor dies or becomes incapable to act, an application ***°'^"^y- may be made to any Court which would have jurisdiction to examine and enforce the agreement by any party thereto, or by the repre- sentatives of any such party, and such Court shall thereupon have the same power to enforce or set aside such agreement, so far as the same may have been acted upon, as if such death or incapacity had not happened ; and such Court, if it shall deem the agreement to be in all - respects fair and reasonable, may order the amount due in respect of the past performance of the agreement to be ascertained by taxation, and the taxing officer in ascertaining such amount shall have regard so far as may be to the terms of the agreement, and payment of the amount found to be due may be enforced in the same manner as if the agreement had been completely performed by the attorney or solicitor. XIV. If, after any such agreement as aforesaid shall have been As to change made, the client shall change his attorney or solicitor before the con- after aaxee- clusion of the business to which such agreement shall relate (which ment. he shall be at liberty to do notwithstanding such agreement), the attorney or solicitor, party to such agreement, shall be deemed to have become incapable to act under the same within the meaning of section thirteen of this Act; and upon any order being made for taxation of the amount due to such attorney or solicitor in respect of the past performance of such agreement, the Court shall direct the taxing master to have regard to the circumstance under which such change of attorney or solicitor has taken place ; and, upon such taxa- tion, the attorney or solicitor shall not be deemed entitled to the full amount of the remuneration agreed to be paid to him unless it shall appear that there has been no default, negligence, improper delay, or 6ther conduct on his part affording reasonable ground to the client for such change of attorney or solicitor. XV. Except as in this part of this Act provided, the bill of an Agreements attorney or solicitor for the amount due under an agreement made m g^g^pt from pursuance of the provisions of this Act shall not be subject to any taxation. taxation, nor to the provisions of the Act of the sixth and seventh Victoria, chapter seventy-three (g). and the Acts amending the same respecting the signing and delivery of the bill of an attorney or solicitor. (y) As to this Act, see ante, p. 1, et seq. 24 ATTORNEYS AND SOLICITOUS ACT, 1870. 33 & 34 Vict. 0. 28. Security may be taken for f atiire costs. Interest may be allowed on taxations in respect of dis- bursements and advances. Taxing officer to have regard to character of services. Revival of order for payment of costs. Section not retrospective. "Person interested." Pabt II. — General Provisions. XVI. An attorney or solicitor may take security from his client for his future fees, charges, and disbursements, to be ascertained by taxation or otherwise. XVTI. Subject to any general rules or orders hereafter to be made upon every taxation of costs, fees, charges, or disbursements, the taxing officer may allow interest at such rate and from such time as he thinks just on moneys disbursed by the attorney or solicitor for his client, and on moneys of the client in the hands of the attorney or solicitor, and improperly retainied by him. XVIII. Upon any taxation of costs, the taxing officer may, in determining the remuneration, if any, to be allowed to the attorney or solicitor for his services, have regard, subject to any general rules or orders hereafter to be made, to the skill, labour, and responsibility involved. XIX. Whenever any decree or order shall have been made for pay- ment of costs in any suit, and such suit shall afterwards become abated, it shall be lawful for any person interested under such decree or order to revive such suit, and thereupon to prosecute and enforce such decree or order, and so on from time to time as often as any such abatement shall happen (A). (A) The section is not retrospective (Doggettr. Eastern Cottnties My., 6 Oh. 474 ■ 19 W. R. 497). Solicitors to -whom costs have been ordered to be paid are not "persons interested" ■within this section {Swnter v. Wortley, W. N. (1873), 4). The legal personal repre- sentative of a deceased person is entitled to an order ; see ffawks v. JSawks, 1 P D 137 ; 45 L. J. P. D. & A. 41 ; 24 W. R. 489 ; 34 L. T. 659. 7&8Vict. LANDS CLAUSES CONSOLIDATION ACT, 1845. 7 & 8 VICT. Cap. 18. An Act for consolidating in one Act certain Provisions usually ii^ serted in Acts authorizing the taking of Lands for Undertakings of a Public Nature. [8th May, 1845.] SS. I.— rV. ; LXIX.— LXXXVII. Whereas it is expedient to comprise in one general Act sundry provisions usually introduced into Acts of Parliament relative to the acquisition of lands required for undertakings or works of a public totl pM^sfd?"^ nature, and to the compensation to be made for the same, and that as well for the purpose of avoiding the necessity of repeating such pro- visions in each of the several Acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves ; be it enacted, &c., that this Act shall apply to every undertaking authorized by any Act to apply to all under- takings au- thorized by LANDS CLAUSES CONSOLIDATION ACT, 1845. 25 Act which, shall hereafter be passed, and which shall authorize the 7 & 8 Vict. purchase or taking of lands for such undertaking, and this Act shall °-18. ss. 1—4. be incorporated with such Act ; and all the clauses and provisions of this Act, save so far as they shall be expressly varied or excepted by any such Act, shall apply to the undertaking authorized thereby, so far as the same shall be appHoable to such undertaking, and shall, as well as the clauses and provisions of every other Act which shall be incor- porated with such Act, form part of such Act, and be construed together therewith as forming one Act. With respect to the construction of this Act and of Acts to be incor-i Interpreta- porated therewith, be it enacted as foUows : J[°^! "^ *'^'^ H. The expression "the special Act," used in this Act, shall be nspgciai construed to mean any Act which shall be hereafter passed which shall Act : " authorize the taking of lands for the undertaking to which the same relates, and with which this Act shall be so incorporated as aforesaid ; and the word "prescribed," used in this Act in reference to any matter "prescribed:" herein stated, shall be construed to refer to such matter as the same shall be prescribed or provided for in the special Act, and the sentence in which such word shall occur shall be construed as if, instead of the word " prescribed," the expression " prescribed for that purpose in the special Act " had been used ; and the expression " the works " or "the "the works:" undertaking " shall mean the works or undertaking, of whatever nature, which shall by the special Act be authorized to be executed ; and the expression "the promoters of the undertaking" shall mean "promoters the parties, whether company, undertakers, commissioners, trustees, °atin^^° ^^' corporations, or private persons, by the special Act empowered to execute such works or undertaking. TTT . The following words and expressions, both in this and the Interpreta- special Act, shall have the several meanings hereby assigned to them, ^^J^he unless there be somethiug either in the subject or context repugnant special Act : to such construction ; (that is to say), "Words importrug the singular number only shall include the plural Number : number, and words importing the plural number only shall in- clude the singular number : Words importing the masculine gender only shall include females : Grender: The word "lands" shall extend to messuages, lands, tenements, "Lands:" and hereditaments (a) of any tenure : The word " lease " shall include an agreement for a lease : " Lease : " The word " month " shall mean calendar month : " Month : " The expression " superior Courts" shall mean her Majesty's superior " Superior Courts of Eecord at Westminster or Dublin, as the case may Courts:" require : The word " oath "■ shall include affirmation in the case of Quakers, " Oath : " or other declaration lawfully substituted for an oath in the ease of any other persons exempted by law from the necessity of taking an oath : The word "county" shall include any riding or other like division "County: " 26. LANDS CLAUSES CONSOLIDATION ACT, 1845. 7 & 8 Vict, u. 18, as. 1—4. "the sheriff:" "the clerk of the peace :" " Justices : ' " Two jus- tices :" "Owner: 'The Bank: " Owner." Short title of the Act. of a county, and shall also include county of a city or county of a town: The word "sheriff" shall include under-sheriff, or other legally competent deputy ; and where any matter in relation to any lands is required to be done by any sheriff or by any clerk of the peace, the expression "the sheriff," or the expression "the clerk of the peace," shall in such case be construed to mean the sheriff or the clerk of the peace of the county, city, borough, liberty, cinque port, or place where such lands shall be situate ; and if the lands in question, being the property of one and the same party, be situate not wholly in one county, city, borough, liberty, cinque port, or place, the same expression shaD. be construed to mean the sheriff or clerk of the peace of any county, city, borough, liberty, cinque port, or place, where any part of such lands shall be situate : The word " justices " shall mean justices of the peace acting for the county, city, liberty, cinque port, or place where the matter re- quiring the cognizance of .any such justice shall arise, and who shall not be interested in the matter; and where such matter shall arise in respect of lands being the property of one and the same party, situate not only In any one county, city, borough, liberty, cinque port, or place, the same shall mean a justice acting for the county, city, borough, liberty, cinque port, or place where any part of such lands shall be situate, and who shall not be interested in such matter ; and where any matter shall be autho- rised or required to be done by two justices, the expression "two justices " shall be understood to mean two justices assembled and" acting together : "Where under the provisions of this or the special Act, or any Act incorporated therewith, any notice shall be required to be given to the owner of any lands, or where any act shall be authorised or required to be done with the consent of any such owner, the word " owner " (J) shall be understood to m.ean any person or corpora- tion who, under the provisions of this or the special Act, would be enabled to sell and convey lands to the promoters of the under- taking : The expression "the Bank" shall mean the Bank of England where the same shall relate to monies to be paid or deposited in respect of lands situate in England, and shall mean the Bank of Ireland where the same shall relate to monies to be paid or deposited in respect of lands situate in Ireland. (a) The power to purchase lands was held to include power to purchase a rent chaige (-Re Brewer, 1 Ch. D. 409). (J) As to the meaning of the word ' ' owner ' ' in the Act, see post, note (a:) to s. 76, p. 36. IV. And be it enacted, that in citing this Act in other Acts of Par- liament, and in legal instruments, it shall be sufficient to use the expression "The Lands Clauses Consolidation Act, 1845." LANDS CLAUSES CONSOLIDATION ACT, 1845. 27 . ' « 7 & 8 Viot. Application of Compensation. o. 18 s. 69-87. And with, respect to tlie purdiase-money or eompensation coming to ^ T parties having limited interests, or prevented from treating, or not money pay- making title, be it enacted as foUo-ws : ^^^? to parties T -vT-v Tj! ^ under dia- liXlX. l± the purchase-money or compensation which shall be pay- ability able in respect of any lands or any interest therein, purchased or taken f "JJj'^^'i^t, by the promoters of the undertaking from amy corporation, tenant for deposited in ILEe or in tail, married woman seised in her own right or entitled to *^^ Bank. dower, guardian, committee of lunatic or idiot, trustee, executor or administrator, or person having a partial or qualified interest only in such lands, and not entitled to sell or convey the same except under the provisions of this or the special Act, or the compensation to be paid for any permanent damage to any such lands, amount to or exceed the sum of two hundred pounds, the same shall be paid into the bank (c), in the name and with the privity of the Accountant-General of the Court of Chancery in England, if the same relate to lands in England or Wales, or the Aceountant-G-eneral of the Court of Exchequer in Ireland if the same relate to lands in Ireland, to be placed to the account there of such Accountant-General ex parte the promoters of the undertaking (describing them by their proper name), in the matter of the special Act (citing it), pursuant to the method prescribed by any Act for the time being in force for regulating monies paid jnto the said Courts ; and such monies shall remain so deposited until the same be applied to some one or more of the following purposes (that is to say). In the purchase or redemption of the land tax {d ), or the discharge Application of any debt or incumbrance affecting the land in respect of ^ "'"^^^ which such money shall have been paid, or affecting other lands settled therewith to the same or the like uses, trusts, or pur- poses (e) ; or In the purchase of other lands, to be conveyed, limited, and settled upon the like uses, trusts, and purposes, and in the same manner, as the lands in respect of which such money shall have been paid stood settled (/) ; or If such money shall be paid in respect of any buildings taken under the authority of this or the special Act, or injured by the proximity of the works, in removing or replacing such buildings, or sub- stituting others in their stead, in such manner as the Court of Chancery shall direct {jr) ; or In payment to any person becoming absolutely entitled to such money (A). By the Settled Land Act, 1882, s. 32, it is provided that where, under any Act incorporating or applyingf, wholly or in part, the Lands Clauses Consolidation Acts, 1845 1860, and 1869, money is at the commencement of that Act in Court, oris afterwards paid into Court, and is liable to be laid out in the purchase of land to be made subject to a settlement, then, in addition to any mode of dealing therewith authorized by the Act under which the money is in Court, that money may be in- vested or applied as capital money arising under the Settled Land Act, on the like terms, if any, respecting costs and other things, as nearly as oiromustauces admit, and (notwithstanding anything in the Settled Laud Act) according to the same 28 LANDS CLAUSES CONSOLIDATION ACT, 1846. 7 & 8 Viot. procedure, as if the modes of investment or application authorized by the Settled 0. 18 s. 69-87. Land Act •were authorized by the Act under which the monoy is in Court. This ' section and sect. 69 of the Lands Clauses Act are to be read together {Re Byron, 23 Ch. D. 171 ; and see lie Lytton, W. N. (1884), 193). As to investment under this provision, see the Settled Land Act, 1882, s. 21, infra. Payment into (c) It is provided by the Supreme Court Funds Rules, 1884, r. 39, infra, that Court. money paid into Court pursuant to sect. 69, "in respect of lands in England or Supreme "Wales, shall be placed in the books at the Pay OflBce to the credit of Ex parte the Court Funds Promoters of the undertaking, in the matter of the Special Act (citing it), and some Rules 1884 words shall be added in each case briefly expressive of the nature of the disability J. gg ' 'to sell and convey, by reason of which the money shall be so paid in, which par- ticulars shall be stated in the request for the direction to receive the money." Accountant- The duties of the Accountant-General of the Court of Chancery are now per- Greueral. formed by the Paymaster-General ; see the Chancery Funds Act, 1872, 35 & 36 Viet. 0. 44, infra. When dis- Payment into Court under this section may be dispensed with by the Court where pensed with, the money is immediately required to be paid to another account, e. g. to a lunatic's account (Re Milnes, 1 Ch. D. 28) ; and see Jie BucMngham, 2 Ch. D. 690. Where the company, instead of paying the purchase -money into Court, paid it to the vendors, the latter were, on motion, ordered to pay it into Court for the purpose of interim protection [London andN. W. Railway v. Corporation of Lancaster, 15 Beav. 22 ; and see Re London, Brighton, and South Coast Railway, 4 W. R. 315). Executors. The company is not entitled to pay the money into Court when there are execu- tors to whom it is payable {Newton v. Metropolitan Railway, 8 Jur. N. S. 738). Infant. Payment into Court under this section of the purchase-money of land belonging to an infant does not make the infant a ward of Court {Ex parte Brewer, 2 Dr. & S. 552). Purchase- Money paid into Court under section 69 remains impressed with the character of money not realty {Eelland v. Fulford, 6 Ch. D. 491 ; Re Barrop, 3 Drew. 726 ; Re Bagot, 10 converted into W. R. 607 ; Re Taylor, 9 Hare, 596) ; secus where the land is taken from vendors personalty. competent to convey under section 76 ; see note {a) to section 78, post, p. 36 ; and Re Stewart, 1 Sm. & G. 32 ; Re Sorner, 5 De G. & Sm. 483 ; Midland Railway Company y. Oswin, 1 CoU. 74 ; Dixie v. Wright, 32 Beav. 662, where accumulations of dividends on a fund paid in under this section were held to pass under a will as personalty ; Re Skegg, 13 W. E. 567 ; Ex parte Hardy, 30 Beav. 206. But see Re Manchester and Southport Railway Company, 19 Beav. 365. Interest not As soon as the money is paid into the Bank, interest ceases to be payable by the payable by company {Lewis v. South Wales Railway Company, 1 Hare, 113), unless there is a special company. agreement. In Ex parte Earl of Sardwicke, 1 De G. M. & G. 297, where the com- pany were ordered to pay interest under a special agreement, it was by consent agreed that no objection should be taken for want of jurisdiction, but that the question should be decided as if a biU had been filed. See Re Divers, 1 Jur. N. S. 995 ; Chambers y. White, 14 Jur. 1129 ; Re Marylehone Improvement Act, 19 W. R. 1058. Redeeming (<^) A tenant for life, who has redeemed the land-tax, will be allowed to reimburse land tax. himself out of the purchase -monies paid into Court {Ex parte Northwick, 1 Y. & Coll. Ex. 166) ; and see Re London, Brighton^ South Coast Railway, 18 Beav. 608. " Discharge (*) The following applications of purchase-money have been held to be within of any debt tliis provision : — (But see now Settled Land Act, 1882, s. 32.) Paying off bonds or or incum- mortgages given by a corporation for repayment of money borrowed for sanitary brance." purposes {Re Deriy Municipal Estates, 3 Ch. D. 289 ; and see Ex parte Corporation of Cambridge, 6 Ha. 29 ; 5 Ely. Ca. 204) ; buying up leases {Ex parte Corporation of Sheffield, 21 Beav. 162 ; 25 L. J. Ch. 687 ; Ex parte Corporation of London, 5 Eq. 418; 37 L. J. Ch. 371 ; Re Marquis Townshendh Estates, W. N. (1882), 7) ; redeeming a quit rent {Ex parte Studdert, 6 Ir. Ch. Rep. 53 ; Ex parte Lord Leconjield, Ir. R. 8 Eq. 669) ; discharging expenses incurred under statutory powers and expressly charged on the land {Ex parte ^Queen's College, 14 Beav. 169, n. ; Ex parte Lockwood, 14 Beav. 168 ; Re Davis's Estate, 3 De G. & J. 144 ; 27 L. J. Ch. 712). But a loan from the Governors of Queen Anne's Bounty {Ex parte Rector ofGrimoldby, 2 Ch. D. 226), or a rent-charge charged on glebe lands in favour of a Land Improvement Company {Ex parte Rector of Kirksmeaton, 20 Ch. D. 203), or advances obtained by a tenant for life under a Drainage Act {Ex parte Studdert, 6 Ir. Ch. 53), wiU not be discharged out of the fund. " Settled The word " settled " in this clause simply means " standinij limited " {Kelland v. therewith." Fulford, 6 Ch. D. 491). ^ Investment, (/) '^^^^ t^s provision money paid in respect of freeholds {Re Cann, 15 Jur. 3) in land, what °^ leaseholds {Re Liverpool Docks, 1 Sim. N. S. 202) may be laid out in the purchase ia • of copyholds ; and money paid in respect of leaseholds may be laid out in the ' purchase of freeholds {Re Parker, 13 Eq. 495). But purchase-money of freeholds and copyholds will not be laid out in the purchase of leaseholds {Re Lancashire and LANDS CLAUSES CONSOLIDATION ACT, 1845. 29 Yorkshire Sy., 2 W. R. 667 ; S. C. mm. Re Macaulay, 23 L. J. Ch. 815) ; see how- 7 & 8 Viot. ever Se Sehoboth Chapel, 19 Eq. 180 ; Ex parte Trinity Coll. Cambridge, 18 L. T. 849. ^. 18, ». 69-87. Enfranohisement of copyholds is a purchase of land within the Act {Dixon v. Jackson, 25 L. J. Ch. 588 ; JJc Cheshunt College, 1 Jur. N. S. 995) ; and so ia an investment in ground rents (Ee Mason, W. N. (1872), 77) ; nor need the land pur- chased be within the jurisdiction of the Court {He Taylor, 40 L. J. Ch. 454, where it was in the Isle of Man). But the money cannot be invested in the purchase of an equity of redemption what is not. {Ex parte Craven, 17 L. J. Ch. 215 ; Ex parte Fortadown, Ir. R. 10 Eq. 368). The money in Court may be invested in the purchase of land, although the Where applicants are absolutely entitled {Re Jones, 39 L. J. Ch. 190 ; 18 W. R. 312 ; "W. N. applicants (1870), 7 ; Re Parker, 13 Eq. 495). absolutely The money in Court may be expended in erecting new buildings on other parts of entitled, the settled land, whether in addition to those existing before or in substitution for Money may such as have become ruinous, provided that (1) it is beneficial to the estate, and (2) be expended the remaindermen do not object ; but it cannot be applied in ordinary repairs and in building, improvements {Re Leigh, 6 Ch. 887 ; Drake v. Trefusis, 10 Ch. 364 ; Re Speer, 3 Ch. D. 262 ; Ex parte Rector of Rolywell-eum- Needingworth, 27 W. R. 707 ; ReAldred, 21 Ch. D. 228 : Ex parte Shaw, 4 Y. & 0. 506 ; JJ« Dimmer, 2 De C. J. & S. 515 ; Re Wight, 6 W. R. 718) ; and see also Re London and North- Western Ry. Act, 1 Ch. 596 ; Re Incumbent of Whitfield, 1 J. & H. 610 ; Ex parte Melward, 27 Beav. 571 ; Re Johnson, 8 Eq. 348 ; Re Clitheroe's Trusts, 17 W. R. 345 ; Re Rudyerd, 2 GifE. 394. So money representing glebe land may be expended in building or improving a Purchase- - rectory-house, or in erecting farm buildings {Re Incumbent of Whitfield; Ex parte money of Rector of Claypole, 16 Eq. 574; Ex parte Rector of Shipton-under- Wychwood, 19W.R. glebe land. 549). In Re Lymington Chapel, W. N. (1877), 226, part of the fund in Court was laid out in the purchase of land and buildings, and the remainder applied in converting the bmldings into a dwelling-house for the minister or chapel keeper. As to build- ings generally, see now the Settled Land Act, ss. 21, 25 and 32, infra. The money may be applied in making improvements which are a permanent Improve- addition to the estate {Re Leslie, 2 Ch. D. 185 (drainage) ; Re Croker, W. N. (1877) ments. 38 (water supply) ; and see Re Vicar of Queen Camel, 1 1 W. R. 503 ; Re Buckingham- shire Ry., 14 Jur. 1065) ; but not it would seem in making roads {Re Belfast Water Commissioners, Ir. R. 5 Eq. 63 ; Re Venour's Settled Estates, 2 Ch. D. 522) ; see now, however, the Settled Land Act, ss. 21, 25, and 32, infra. Where the money is to be laid out in bvulding, it wUl not in general be paid out of Court till the buildings are finished {Re Dummer, 2 De G-. J. & S. 515 ; 11 Jur. N. S. 615 ; Ex parte Rector of Shipton-under- Wychwood, 19 W. R. 549). It seems doubtful whether the Court wUl apply the fund in recouping a limited Recouping owner money which he has expended without its previous sanction on other parts of limited the estate ; see Williams v. Aylesbury and Buckingham Ry., 9 Ch. 684 ; Re Leigh, 6 owner. , Ch. 887; Ex parte Rector of Sartington, W. N. (1875) 40 ; 23 W. R. 484 ; Re Stock, 42 L. T. 46 ; W.N. (1880), 11 (where, however, the money was spent before the land had been taken). But, nevertheless, this has been done in some cases ; see Ex parte Rector of Gamston, 1 Ch. D. 477 ; Ex parte Rector of Solywell-cum-Needingworth, 27 W. R. 707 ; Re Partington, 11 W. R. 160 ; 1 N. R. 177 ; Re Aldred, 21 Ch. D. 228 ; Re Davis, 3 De G. & J. 144 ; 4 Jur. N. S. 1029. Eor the appKoation of compensation money in the case of common lands, see Common Nash V. Coombs, 6 Eq. 51 ; Fox v. Amhurst, 20 Eq. 403 ; Austin v. Amhurst, 7 Ch. lands. D. 689 ; and as to lands in which freemen have an interest, see Ex parte Mayor of Lincoln, 21 L. J. Ch. 621. -d . j. In a proper case the Court will sanction the investment of the money paid in, Re-mvest- together with other trust-monies, in the purchase of estates of greater value {Ex ment m parte Newton, 4 T. & C. Ex. 518). la'ids of On application for re-investment in land, the Court approves of the investment greater value. either immediately or after inquiry, and then directs an inquiry whether a good title Reference to can be made ; see Daniell, p. 1039 et seq. But the Court may dispense with the conveyancing investigation of the title {Re Blomefield, 25 W. R. 37 ; W. N. (1876) 242), or with counsel, the reference to the conveyancing counsel {Re Lapworth, W. N. (1879) 37). {a) Providing temporary buildings until a new hospital should be built is a proper Buildings re-investment of part of the purchase-money of a hospital {Re St. Thomas's Sospital, taken or 11 W. R. 1018). . X. J J injured. Buildings may be " iajured " by bemg severed irom a farm so as to be rendered useless, although they sustain no structural damage {Ex parte MeVward, 27 Beav. The Court of Chancery is now the Chancery Division of the High Court (Jud. Court of Act, 1873, ss. 33, 34). .... v. • ^ i, ^Ihancery. (A) The application for payment out or re-mvestment must be accompanied by an Payment to afedavit of no incumbrances, see R. S. C. 1883, Ord. LII. r. 18, which provides that person abso- iu the case of applications under Acts of Parliament directing the purchase-money lately enti- tled. 30 7 & 8 Vict. 0. 18,8.69-87. Applicants to make affidavit as to inoum- brances. Affidavit of no settlement. Payment out to charity trustees. Payment out to trustees. Dowress. Tenant in tail must execute disentailing assurance. Land be- longing to a married Statute of Limitations. Transfer to anotbei LANDS CLAUSES CONSOLIDATION ACT, 1845. of any property sold to be paid into Court, any persons claiming to be entitled to the money so paid in must make an affidavit, not only verifying their title, but also stating that they are not aware of any right in any other person, or of any olaun made by any other person, to the sum claimed, or to any part thererf, or it the petitioners are aware of any such right or claim, they must m such affidavit state or re^r to and except the same. „xro_/ii7i «n w See as to the necessity of the affidavit. Ex parte Gramge, 3 T. & C. Jix. bi ; ±.x parte Bollick, 4 Ely. Ca. 498. a x v .i li. -.i. , r. The affidavit must be made though income only is proposed to be dealt with (ia; parte Warden of Winchester College, 14 "W. R. 788 ; W. N. (1866) 208 ; Re Milne, 8 L. T. 199, overruling Ex parte Baroness of Braye, 9 Hare, App. vii). An affidavit by one of several petitioners is sufficient [Re Vale of Neath Railway, W. N. (1866) 78). The tenant for life being infirm, and the remaindermen being infants the order for payment of dividends to the tenant for life was made on the affidavit of the executors [Re Smith's Leaseholds, W. N. (1866), 290 ; 14 W. B. 949 ; and see Re Batty, W. N. (1877) 212) ; and in another case on the affidavit of the petitioner's solicitor {Re Balsey, W. N. (1870) 68), and on a petition by trustees of a charity the affidavit of their clerk was sufficient {Re Edward VI. Almshouses, 16 W. E. 841). The affidavit is necessary, although the application is by a large public body for interim investment and paymentof dividends {ReByron, W. N. (1883) 67) ; but see Re Magdalen Coll., "W. N. (18801 150. Where a fund in Court arises from a settled estate, and a tenant in tail who has barred the entail applies for payment, an affidavit of no incumbrances must be made (Seton, 1504 ; Thornhill v. Millbank, 12 W. E. 523). Where a married woman would be entitled there must be an affidavit of no settle- ment ; Supreme Court Funds Eules, 1884, r. 61, infra, and see ibid. rr. 44 — 68, as to payment out of Court generally. Payment to trustees has been allowed in the case of trustees for a charity {Ex parte Trustees of Tid St. Giles' Charity, 17 W. E. 758 ; W. N. (1809) 116 ; Re Faversham Charities, 10 W. E. 291, where the trustees had a power of sale ; Re Spurstowe's Charity, 18 Eq. 279). But in Exparte the Governors, fc. of Norfolk Clergy, W. N. (1882), 53, where there was no power of sale, Fry, J. declined to follow Re Spurstowe's Charity. As to dispensing with the consent of the Charity Commiss- ioners, see Re Lister's Sospital, 6 De G-. M. & Gr. 184 ; Re William of Xyngeston's Charity, 30 W. E. 70 ; W. N. (1881) 143 ; and nute to s. 1 of Trustee Belief Aot, post, p. 51. The money may be paid out to trustees with a power of sale {Re Gooch, 3 Ch. D. 742 ; Re Sotson, 7 Ch. D. 708 ; Re Thomas, W. N. (1882) 7 ; 30 W. E. 244 ; Re Ward, 28 Ch. D. 100 ; but see Re Sowry, 8 Ch. 736) ; whether the power is presently ex- eroiseable or not {Re Evans, 14Ch.D. 511; Re Vestry of St. Zuke's,W.'S. nSSO) 58). See further as to payment out to trustees. Re Illman, 39 L. J. Ch. 760 ; 19 W. E. 962 ; W. N. (1870) 189; Re Reaston, 13 Eq. 564; Re Sorwood, 3 Gr\S. 218; Re Roberts, 7 Jut. N. S. 818 ; 9 W. E. 758 (sole trustee). Under sect. 21 of the Settled Land Act the money may be paid to any person empowered to give an absolute discharge ; see this Act, infra. The fund may also be paid out to trustees to be applied by them under a power of advancement {Re Curwen, W. N. (1880) 83). Payment out of small sums to solicitors on their undertaking to distribute them is often allowed; and for order to pay out to trustees "or either of them," see note to sect. 71, post. A dowress is entitled to have the value of her right of dower paid to her out of the fund in Court {Re Sail, 9 Eq. 179). Where the landtaken was entailed, the purchase-money wiU not be paid out to the tenant in tail unless he has executed a disentailing deed; see Re Reynolds (C. A.), 3 Ch. D. 61 ; Re Butler's Will, 16 Eq. 479 (Selbome, L. C.) ; Re Broadwood, 1 Ch. D. 438 (Jessel, M. B.) ; Re Noreop, 31 L. T. 85 (V.-C. B.) ; Ex parte Smyth, Ir. E. 10 Eq. 66 ; the cases to the contrary are all overruled. Where the land belonged to a married woman it may be paid out on her consent in Court without an acknowledged deed {Re Robins, 27 W. B. 705 ; Re Sayes, 9 W. E. 769 ; Ex parte Ellispn, 2 T. & C. Ex. 528 ; Pollack v. Birmingham Ry., 11 Jur. N. S. 7 ; 13 W. B. 401 ; Knapping v. Tomlinson, 18 W. E. 604 ; W. N. (1870) 107) ; and see Stamdering v. Sail, H Ch. D. 652 ; Wallace v. Greenwood, 16 Ch. D. 362 ; and the Married Women's Property Act, 1882, infra. Payment in under the Act does not prevent the Statute of Limitations run- ning in favour of a person who has merely a possessory title when the land is taken {Re Winder, 6 Ch. D. 696 ; Re Jane Evans, 42 L. J. Ch. 357 ; and see Exparte Chamberlain, 14 Ch. D. 323). Transfer from the account to which the money was paid in to another account is a payment out within the Act {Melling v. Bird, 22 L. J. Ch. 699: 17 Jur. 155; Tipper V. Soilleux, W. N. (1875) 158 ; Re Bristol Free Grammar School, 47 L. J. Ch. liAI^DS CLAUSES CONSOLIDATION ACT, 1845. 31 ?/Is'nTfi\''^" T^^^^^^ ^^ ' ^^ ■^'"■''' ■'^'™'««s of SorfieU Trust, 29 "W. R. 462 ; "W. N. 7 & g Viot ussy lb), in oases not within the Act, and where the special Act contained no „ 18 s 69-87 provision tor payment to persons absolutely entitled, such payment has nevertheless ' ' ' been ma.Ae (Me Musgrave, 6 Jur. N. S. 797 ; Ee MaccUsJUld Canal Act, 9 Jur. N. S. aorount io a 224; iJ.^ife„, W.N. (1867)11). "^ p^a^Znt out. LXX. Such money may be so applied as aforesaid upon an order of Interim the Court of Chancery in England or the Court of Exchequer in Ire- "i^estment. land, made on the petition (i) of the party who would have been entitled to the rents and profits of the lands ia respect of which such money shall have been deposited ; and until the money can be so applied it may, upon the like order, be invested by the said Ac- countant-Greneral in the purchase of three per centum consolidated or three per centum reduced bank annuities, or in government or real securities {k), and the interest, dividends, and annual proceeds there- of (l) paid to the party who would for the time being_ have been entitled to the rents and profits of the land (w). (i) All applications for interim and permanent investment and payment of divi- dends under the Act, and applications for payment out .where the fund does nut exceed 1,000^ , are now made by summons at chambers ; see E. S. C. 1883, Ord. LV. r. 2 (2, 7), infra; Ex parte Maidstone JJy., 25 Ch. B. 168 ; Me'Oalton, ibid. 240 ; Ex parte Mayor of London, ibid. 384. By the rules under the Settled Land Act, 1882, r. 2, all applications to the Court Court of under that Act are to be made by summons in chambers ; and see infra as to these Chancery, rules generally. The Court of Chancery is now the Chancery Division of the High Court (Jud. Act, 1873, ss. 33, 34, infra). The duties of the Accoimtant-General are now discharged by the Paymaster Accountant- (Chancery Funds Act, 1872, infra). General. (A) The fund is cash under the control of the Court, and may be invested in any of -rrry^ . . . the securities authorized for the investment of funds in Court (Ex parte St. John's wnat invest- Colkge, Oxford, 22 Ch. D. 93, overruling Ex parte Viear of St. Mary's, 18 Ch. D. "^j ^^ 646, and (on this point) Ex parte Sector of Kirksmeaton, 20 Ch. D. 203). auowett. The Court will sanction an interim investment in mortgage security [Re Smith, 9 Eq. 178), but not if the chief clerk has reported against it [Ex parte Franklun, 1 De G. & Sm. 528). {t) Where the company are in possession, payment of the dividends to the tenant Dividends for life will be ordered before the conveyance [Re Symget ford's Trusts, 1 K. & J. paid before 413). It is not the duty of the Court to go into the title of the person claiming. conveyance. As to the form of an order under this section in the case of a corporation sole, see p. - .±- Ex parte the Archbishop of Canterbury, 2 De G. & Sm. 365 ; and see Re Davenant's ^°^B°^^^°^- Charity, 2 W. K. 344 ; Re Pearce, 24 Beav. 491 ; Ex parte Churchwardens and Over- seers of Bicester, 5 Ely. Ca. 702, where the dividends were ordered to be paid " to the viear for the time being, and churchwardens and overseers, or either of them." See also Re Collins' Charity, 20 L. J. Ch. 168, cited in note to s. 71 ; Re Sow, 15 Jur. 266, and Re Codrington, 18 Eq. 658, where payment to the secretary of a charity was ordered, there being no treasurer. Where the fund belongs to a charity the sanction of the Charity Commissioners Consent of to the appUcatiou is not required [Re William of Kyngeston's Charity, 30 W. E. 70; Charity Com- W. N. (1881) 143 ; Re Lister's Sospital, 6 De G. M. & G. 184). As to the form of missionera. the order for payment, &c. to private trustees, see note to s. 71, post. {rn) The Court cannot proceed under this section at the instance of an incum- Who may branoer, or annuitant, but only at the instance of the person who would have been apply for entitled to the rents and profits if the property bad been unsold [Ex parte Back, 2 interim iu- T. & J. 386) ; and see Re Hungerford, 3 K. & J. 455 ; Ex parte Cofleld, 11 Jur. N. S. vestment as 1 ; Re Wrey, 11 Jur. N. S. 206; Ex parte Wilkinson, 3 De G. & S. 633. In Re "party en- Fedley's Estate, 1 Jur. N. S. 654, an order was made on the petition of the tenant titled to for life, and annuitants (not bound by the contract) for payment of the dividends to rents and the former, prefaced by an undertaking not to distrain on the lands. A remainder- profits." man, though plaintiff in an administration suit, was held to have no right to petition [Nash V. Nash, 37 L. J. Ch. 927 ; 16 W. E. 1105). Where the money was deposited in respect of a closed burial groxmd, the income was ordered to be paid to the person who would have been entitled to the burial fees [Re St. Tancras Burial Ground, 3 Eq. 173.; Ex parte Rector of Liverpool, 11 Eq. 15 ; Ex parte Rector of St. Martin's Bir- 'am, 11 Eq. 23). 32 LANDS CLAUSES CONSOLIDATION ACT, 1845. 7 & 8 Viot. C.18, 8.69-87. Service. Sums from 20?. to 200?. to be de- l or paid to truBtees. Payment to trustees for time being, one of two trustees, &c. Charity trustees. As to the parties to be sei-ved, see Re Morris, 20 Eq. 470 ; Ex parte Staples, 1 De Gr. M. & G. 294 ; Re Dowling, 24 "W. R. 729 ; Seton, p. 1424. LXXI. If the purchase-money or compensation shall not amount to the sum of two hundred pounds and shall exceed the sum of twenty- pounds, the same shall either be paid into the Bank, and applied in the manner hereinbefore directed with respect to sums amounting to or exceeding two hundred pounds, or the same may lawfully be paid to two trustees (n), to be nominated by the parties entitled to the rents or profits of the lands in respect whereof the same shall be payable, such nomination to be signified by writing under the hands of the party so entitled ; and in case of the coverture, infancy, lunacy, or other incapacity of the parties entitled to such monies, such nomi- nation may lawfully be made by their respective husbands, guardians, committees or trustees ; but such last-mentioned appKcation of the monies shall not be made unless the promoters of the undertaking approve thereof and of the trustees named for the purpose ; and the money so paid to such trustees, and the produce arising therefrom, shall be by such trustees applied in the manner hereinbefore directed with respect to money paid into the Bank, but it shall not be necessary to obtain any order of the Court for that purpose. (») Where the land taken had been vested in trustees under the Municipal Corporations Act, the Court, under this section, ordered payment of the dividends of the investment to any two of the trustees for the time being [Be Collins' Charity, 20 L. J. Ch. 168). In Re Clinton, 8 "W. E. 492, followed in Re Coulson, 17 L. T. 27 ; W. N. (1867) 233, V.-C. Wood made the order for payment to the two trustees " or either of them ;" and this is the proper form (Seton, p. 88). The proceeds of the sale of charity lands taken by a railway company were paid to the trustees of the charity, with the consent of the Charity Commissioners [Re Fa/versham Charities, 10 W. R. 291), but see note at p. 30, ante. Sums not exceeding 20?. to be paid to parties. Purchase- money under 20?. All sums payable under con- tract with persons not absolutdy LXXII. If such money shall not exceed the sum of twenty pounds (o), the same shall be paid to the parties entitled to the rents and profits of the lands in respect whereof the same shall be payable, for their own use and benefit, or in case of the coverture, infancy, idiotcy, lunacy, or other incapacity of any such parties, then such money shall be paid for their use to the respective husbands, guardians, committees, or trustees of such persons. (o) WTiere it is probable that after re-investment of part of the sum paid in, the balance left will be under 20?., the Court will order that the balance, if less than 20?., be paid to the tenant for life {Re Lord Bgremont, 12 Jur. 618 : Re Sateman's Estate, 21 L. J. Ch. 691). But see Ex parte Vicar of Bredicot, 5 Rly. Ca. 209, where the Court refused to order payment of 20?. 10s. (the balance of 200?. paid into Court for the purchase of land belonging to a rectory) to the rector in liquidation of extra costs beyond those allowed by the Act ; and in Re Eateman, 21 L. J. Oh. 691, and Ex parte Barrett, 19 L. J. Ch. 416, applications to allow sums over 20?. to be paid to the tenant for life, he undertaking to lay them out in lasting improvements, were refused. LXXIII. All sums of money exceeding twenty pounds which may be payable by the promoters of the undertaking in respect of the taking, using, or interfering with any lands, under a contract or agreement with any person {p) who shall not be entitled to dispose LANDS CLAUSES CONSOLIDATION ACT, 1845. 33 of such lands or of the interest therein contracted to be sold by him 7 & 8 Viet. absolutely for his own benefit, shall be paid into the Bank or to trustees "• 18. «■ 69-87. in manner aforesaid; and it shall not be lawful for any contracting entitled to party not entitled as aforesaid to retain to his own use any portion of 3 ^'"^ ^°*° the sums so agreed or contracted to be paid for or in respect of the taking, using, or interfering with any such lands, or in lieu of bridges, tunnels, or other accommodation works, or for assenting to or not opposing the passing of the bill authorising the taking of such lands, but aU such monies shall be deemed to have been contracted to be paid for and on account of the several parties interested in such lands, as well in possession as in remainder, reversion, or expectancy : Pro- vided always, that it shall be in the discretion of the Court of Chancery in England, or the Court of Exchequer in Ireland, or the said trustees, as the case may be, to allot to any tenant for life or for any other partial or qualified estate, for his own use, a portion of the sum so paid into the Bank or to^ such trustees as aforesaid, as compensation for any injury, inconvenience, or annoyance which he may be con- sidered to sustaiu, independently of the actual value of the lands to be taken, and of the damage occasioned to the lands held therewith, by reason of the taking of such lands and the making of the works (q). ( p) See as to this section generally, Taylor v. Directors of the Chichester Railway, Section 4 H. L. 628. applies These words were held to apply to the case of a landowner withdrawing his oppo- though no sition to the bill authorising a railway, though he never entered into any contract contract, as to the land eventually taken under the Act, and though the section in terms only speaks of a " contracting party " [Pole v. Fole, 2 Dr. & Sm. 420 ; II Jur. N. S. 477) ; and see Ee Wilson, 9 Jur. N. S. 1043 ; 32 L. J. Ch. 191. (?) Costs and expenses incurred by a tenant for life which the company are not What monies bound to pay may be, under this section, ordered to be paid to the tenant for life, are within out of the purchase-money paid in [Se Aubrey, I W. E. 464 ; 1 7 Jur. 874) ; and see the section. Earl of Shrewsbury^. N. Staffordshire Sy . Co., 1 Eq. 693; Re Oldham, W. N. (1871), 190 ; Me Slrathmore Estates, 18 Eq. 338 ; Bx parte Curate of Whitworth, 24 L. T. 126 ; "W. N. (1871), 66; Re Earl of Seikeley' s TFill, 10 Ch. 66; Re McolVs Estate, "W. N. (1878), 154. Under this section small sums will he ordered to be paid to the tenant for life, for Small sums his own use, as compensation for ' ' injury, inconvenience, and annoyance, ' ' sustained ordered to be by him ; see Ex parte Loekwood, 14 Beav. 158 ; Re Collis's Estate, 14 L. T. 352. But paid to in Re Duke of Marlborough, 13 Jur. 738, a company having agreed with a tenant for tenant for life, to pay him a sum for the benefit of himself, "or other the owner for the time life, being, for indemnifying him from the expenses of making a new road, &o., and as a compensation for the annoyance which he, or such owners as aforesaid, might sustain, in consequence of the construction of such railway, " the Court ordered the purchase-monies, after payment of the costs for making the road, to be invested, and refused to pay them to the tenant for life. It was held that upon a reference to the master, under the old practice, to inquire Damage, as to the title to money paid in for compensation for damage done to lands, the master ought to report whether the damage done be temporary or permanent {Cator T. Croydon Canal Company, 4 T. & C. Ex. 405). LXXrV. Where any purchase-money or compensation paid into the Court may Bank under the provisions of this or the special Act shall have been paid ^?°* ^PP^'' in respect of any lease for a life or lives or years, or for a life or lives and of money in years, or any estate in lands less than the whole fee simple thereof, or of [g^^gg° p°* any reversion dependent on any such lease or estate, it shall be lawful for reversions as the Court of Chancery in England or the Court of Exchequer in Ireland, ^^t'^„^t on the petition of any party interested in such money, to order that the 34 LANDS CLAUSES CONSOLIDATION ACT, 1845. 7 & 8 Vict. 0. 18, s. 69-87. Apportion- ment — (1) As be- tween lessor and lessee. (2) As be- tween Buooes- sive owners, (a) Where the property taken was held on lease, and therefore of perishable nature. Property held on renewable Bef usal to renew. (3) Where property was let on leases, renewable on fines. When whole dividends allowed. Upon deposit being made the owners of the lands to convey, or in default the lands to vest in the pro- moters of the undertaking', upon deed poU being executed. same shall be laid out, invested, aecumulated, and paid in sueh manner as tlie said Court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may be (r). (r) " Lease " includes an agreement for a lease (sect. 3). _ As to apportionment between lessor and lessee, where there is a doubt on the title of either, see Brandon v. Srandon, 2 Dr. & S. 305, and Se Wood, 10 Eq. 572. A yearly tenant holding over after notice to quit can claim no compensation {Sx parte JSTadin, 17 L. J. Oh. 421). Lessors and lessees should deal sepaiately with the company in respect of their interests, for the Court has no jurisdiction to apportion the purchase-money between them (^a; parte Ward, 2 De G-. & S. 4 ; see M parte Dean of Sattel, 21 L. T. (0. S.) 55). See also Ee King, 16 Eq. 521. When property held under a lease ia taien it often becomes a question between a tenant for life and remainderman how the purchase-money is to be divided. _ It seems to be now settled that in such a case the tenant for life is entitled to receive an annuity of such an amount that the payment of it will exhaust the fund in the number of years which the lease had to run ; see Askew v. Woodhead (C. A.), 14 Ch. D. 27 ; 41 L. T. 670 ; 42 L. T. 567 ; Se Fhillips, 6 Eq. 250 ; Ee SeweU, 23 L. T. 835 ; Be Money, 2 Dr. & Sm. 94 ; the cases to tiie contrary cannot now be relied on. As to the case gf an annuitant, see Ex parte WilMnson, 3 De G. & S. 633. Eor the principle on which the Court will estimate the value of a lease held on a contingency, see Fenny v. Fenny, 5 Eq. 227. Where settled renewable leaseholds have been taken the rule seems to be that if there is an unqualified trust for renewal the tenant for life only takes the income of the purchase-money {Ee Wood, 10 Eq. 572 ; Maddy v. SaU, 3 Ch. D. 327 ; SoUier v. Burne, 16 Eq. 163 ; Ee Barber, 18 Ch. D. 624 ; Ee Eanelagh, 26 Ch. D. 590) ; and see Morres v. Sodges, 27 Beav. 625, and Tardiff v. EoUnson, Hid. 629, n. Where trustees had neglected to renew_ a renewable lease which therefore determined in the lifetime of the tenant for life thereof under a settlement, such tenant for life was allowed the whole of the purchase-money, Stuart, V.-C, declining to consider, on petition, the question of breach of trust in not renewing [Ee Beaufoy, 1 Sm. & GifB. 20 ; 16 Jur. 1084). On the other hand, where property is let on renewable leases at a low rent the present income of the purchase-money will exceed the rent reserved, and, in such cases, the Court generaEy allows the persons entitled in possession so much of the dividends of the purdhase-money as corresponds with the amount they would have received if the land were unconverted, and directs the surplus to be accumulated and invested, with liberty to apply at the periods when the leases would be renew- able and the fines payable (Ex parte Dean of Gloucester, 19 L. J. Ch. 400 ; Ex parte Deem of Christchm-eh, 23 L. J. Ch. 149 ; Ex parte Eector of Lambeth, 4 Ely. Ca. 231 ; Ex parte Bishop of Winchester, 10 Hare, 137 ; Ex parte Precentor of St. Paul's, 1 K. & J. 538; Ex parte Dean of St. Paul's, 11 W. R. 482, which were all eases of ecclesiastical or college leases). The same principle applies where the company take land of private persons, which, is subject to a beneficial lease ; see Ee Wootton, 1 Eq. 589 ; Ee Mette, 7 Eq. 72 ; Ee Wilkes, 16 Ch. D. 697, where the form of order is given. But the whole dividends have, under special oicoumstances, been allowed to the persons entitled in possession [Ee Dean and Chapter of Westminster, 26 Beav. 214, where the present value of the property taken was largely increased since the leases were granted ; Ex pwrte Trustees of St. Thomas's Church, Bristol, W. N. (1870), 192 ; Ee Steward, 1 Drew. 636). See note to section 80, p. 42, post, as to the costs of remain d'^rmen appearing upon petitions under this section. LXXV. Upon deposit in the Bank in manner hereinbefore provided of the purchase-money or compensation agreed or awarded to be paid in respect of any lands purchased or taken by the promoters of the undertaking under the provisions of this or the special Act, or any Act incorporated therewith, the owner (s) of such lands, including in such term aU parties by this Act enabled to sell or convey lands, shall, when required so to do by the promoters of the Tindertaking, duly convey such lands to the promoters of the tindertakiag, of as they shall direct ; and in default thereof (i), or if he fail to adduce a liANDS CLAUSES CONSOLIDATION ACT, 1846. 35 good title to such lands to their satisfaction, it shall be lawful for 7&8Viot. the promoters of the undertaking, if they think fit, to execute a deed °- ^^.s- 69-87. poll under their common seal if they he a corporation, or if they he not a corporation under the hands and seals of the promoters or any two of them, containing a description of the lands in respect of which such default shaU be made, and reciting the purchase or taking thereof by the promoters of the undertaking, and the names of the parties from whom the same were purchased or taken, and the deposit made in respect thereof, and declaring the fact of such default having been made; and such deed poU shall be stamped with the stamp duty which would have been payable upon a conveyance to the promoters of the undertaking of the lands described therein; and thereupon all the estate and interest in such lands of or capable of being sold and conveyed by the party between whom and the pro- moters of the undertaking such agreement shall have been come to, or as between whom and the promoters of the undertaking such purchase- money or compensation shall have been determined by a jury or by arbitrators or by a surveyor appointed by two justices as herein provided, and shall have been deposited as aforesaid, shall vest abso- lutely in the promoters of the undertaking, and as against such parties, and all parties on behalf of whom they are hereinbefore enabled to sell and convey, the promoters of the undertaking shall be entitled to immediate possession of such lands (u). («) As to the meaning of '• owner," see next section and note. (t) See, before the passing of the Act, Sruce v. TFUUs, 11 Ad. & Ell. 463 ; S. 0. mm. Bath Ziver Company y. Willis, 2 Ely. Ca. 7 ; The Earl of Harborough v. Shardlow, 2 Ely. Ca. 253 ; 7 M. & W. 87. («) The lands vest without a conveyance {Bruce v. Willis). Vesting. LXXVI. If the owner {x) of any such lands purchased or taken by Where parties the promoters of the imdertaking, or of any interest therein, on tender '^^^^^V^J'^ot of the purchase-money or compensation either agreed or awarded to show title, or be paid in respect thereof, refuse to accept the same, or neglect or fail 0^'™°* ^^ to make out a title to such lands, or to the interest therein claimed by pnrohase- him, to the satisfaction of the promoters of the undertaking, or if he ^°''^?1*5 ^® refuse to convey or release such lands as directed by the promoters of the imdertaking, or if any such owner be absent from the kingdom, or cannot, after diligent inquiry, be found, or fail to appear on the inquiry before a jury, as herein provided for, it shall be lawful for the promoters of the undertaking to deposit the purchase-money or compensation pay- able in respect of such lands, or any interest therein, in the Bank, in the name, and with the privity of the Accountant- General* of the * ?^® ^* .^ ^^ Court of Chancery in England or the Court of Exchequer in Ireland, ^ i,' infra', to be placed, except in the cases herein otherwise provided for, to his p. 203. account there, to the credit of the parties interested in such lands (de- Bcmbing them, so far as the promoters of the undertaking can do), subject to the control and disposition of the said Court. {x) A person in possession, but showing a bad title, ia not an. "owner" within Who- is ^^ this section ; and therefore, where a vendor under a contract for a sixty years' ' owner title, faila to show more than a title for thirty-sis years, he cannot compel the (see s. 79;. d2 86 LANDS CLAUSES CONSOLIDATION ACT, 1845, 7 & 8 Viot. company to deposit the puroliase-niouey in the Bank under this section {Douglas v. c. 18,8. 69-87. London and North- Western Railway Co., 3 K & J. 173; and see ^^ Pf^±f^^^f^ Upon deposit being made a receipt to be given, and the lands to vest upon a deed poU being exe- cuted. Application of monies so deposited. Suit by owners. Payment to incum- brancers. Conversion into per- sonalty. and Stallingers of Sunderland, 1 Drew. 184 ; Doe d. Butehinson v. Manchester, Bury, and Sosendale Railway Co., 14 M & W. 687 ; sub mm. Sutchinson v. East Lancashire Railway Co., 3 Ely. Ca. 748). But a surviving partner selling the property by virtue of his duty to wind up the partnership, is an owner within the section {Douglas v. London and Mrth- Western Railway Co.). Comp. as to the meaning of the word owner, Russell v. Shenton, 3 Q. B. 449, and Chauntler-v. Robinson, 4 Exch. 163 ; and see also as to this section generally, JEr parte Winder, 6 Ch. D. 696 ; Wells v. Chelmsford Local Roard, 15 Ch. D. 108. LXXVn. Upon any sucli deposit of money as last aforesaid being made, the casHer of the Bank shall give to the promoters of the undertaking, or to the party paying in such money by their direction, a receipt for such money, specifying therein for what and for whose use (described as aforesaid) the same shall have been received, and in respect of what purchase the same shall have been paid in; and it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poU, under their common seal, if they be a corpora- tion, or if they be not a corporation under the hands and seals of the said promoters or any two of them, containing a description of the lands in respect whereof such deposit shall have been made, and declaring the circumstances under which and the names of the parties to whose credit such deposit shall have been made, and such deed poll shall be stamped with the stamp duty which would have been payable upon a conveyance to the promoters of the undertaking of the lands described therein ; and thereupon all the estate and interest in such lands of the parties for whose use and in respect whereof such purchase-money or compensation shall have been deposited shall vest absolutely in the promoters of the undertaking, and as against such parties they shall be entitled to immediate possession of such lands. LXXVIII. Upon the application by petition (y) of any party making claim to the money so deposited as last aforesaid, or any part thereof, or to the lands in respect whereof the same shall have been so deposited, or any part of such lands, or any interest in the same, the said Court of Chancery in England or the Court of Exchequer in Ireland may, in a summary way, as to such Court shall seem fit, order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment of the dividends thereof according to the respective estates, titles, or interests of the parties making claim to such money or lands, or any part thereof (z), and may make such other order in the premises as to such Court shall seem fit (a). {y) The application for investment is now by summons, see S. S. C. 1883, Ord. LV. r. 2 (7), infra. Where the company alleged that the owners failed to make a title, and paid the purchase-money into Court under sect. 76, and the owners obtained a decree for completion of the purchase in a suit, the order for payment out under this section was made on a petition entitled in the suit and in the matter of the Act {Galliers v. Metropolitan Railway, H Eq. 410). («) Under this section incumbrancers may petition for the money to be paid to them out of court (Re Marriage, 9 W. E. 84 Sf; but they cannot recover more than six years' arrears of interest {Re Stead, 2 Ch. D. 713). (a) Purchase-money in Court, under this section, is converted into personalty, the vendors from whom the land is taken being competent to convey (Ex parte LANDS CLAUSES CONSOLIDATION ACT, 1845. 37 2%rm«»i, 1 Sim. N. S. 260 ; ^Ex parte Han-op, 3 Drew. 726, 733 ; Ex parte SawUm, 7 & 8 Vict. ■Pii'nni' S^°i^^^ °o*e to sect. 69, ante, p. 28). See, however, lie Wallcer'a c. 18, ». 69-87. J!,state, II U. i. Ch. 888 ; and if the company have taken the land from a person moompeteut to deal with them the money in Court helongs to the heir (iJe Tugwell, A '' '^"^'■s Pearson, J. declined to follow Ex parte Flamank. A person claiming in respect of an interest created after the notice to treat cannot apply for compensation {Ex parte Edwards, 12 Eq. 389). LXXIX. If any question arise respecting the title to the lands in Party in ' respect whereof such monies shaU have been so paid or deposited as Kemedthe aforesaid, the parties respectively in possession of such lands, as being owner, the owners thereof, or in receipt of the rents of such lands, as being entitled thereto at the time of such lands being purchased or taken, BhaJl be deemed to have been lawfully entitled to such lands until the contrary be shown to the satisfaction of the Court (4), and unless the contrary be shown as aforesaid, the parties so in possession, and aU parties claiming under them, or consistently with their possession, shall be deemed entitled to the money so deposited, and to the dividends or interest of the annuities or securities purchased therewith, and the same shall be paid and applied accordingly (e). (a) See Ex parte Webster, "W. N. (1866), 246. Party in (c) " The legislature has anxiously provided that the Court shaE not upon the possession. occasion of applications for payment of purchase-money, deal with the property in wi,g„ j.},- any way which can aflfect the title, unless it can be shown so clearly as to be beyond rjoQ^j. .,yjii all question, that there must be litigation upon the question of title," per V.-C. -.fuse to in Wood in He St. I'ancras Eurial Ground, 3 Eq. 173, 183; and see Ex parte Chamberlain, JIm^JZ, +;Ii- 14 Ch. D. 323 ; Ee Winder, 6 Ch. D. 696 ; Re Evans, W. N. (1873), 46 ; Ee Ferry, I| "?f!. : ™ 1 Jur. N. S. 917 ; Se Sterry, 3 W. R. 561 ; Re Alston, 5 W. R. 189. Bos^esaoi But where the title is proved to be doubtful, the Judge is bound to try the ^ question, as formerly the Court would have directed an issue at law {Ex parte What rights Issauehaud, 3 T. & Coll. Exch. 721 ; Ex parte The Freemen, ^e. of Sunderland, 1 wiU be deter- Drew. 184). "Where successive interests were claimed, and there was a dispute mined, whether one of the claimants was really entitled, the Court would apply its ordinary Where title machinery to ascertain the respective values of the particular interests, and after to part is paying the amount of the value of the interests as to which there was no doubt to disputed, the parties entitled, would return the remainder of the money to the company {Brandon v. Brandon, 2 Dr. & Sm. 305; 34 L. J. Ch. 333; 13 W. E. 251 ; Re N. London Railway Co., 2 Dr. & S. 312 ; 34 L. J. Ch. 373 ;' 13 "W. E. 364) ; and see Ite Ferhs, 1 Sm. & GiS. 545; Ffi Hayne, 13 W. E. 492; Bog§ v. Midland Railway, i Eq. 810. LXXX. In all cases of monies deposited in the Bank under the pro- Costs in cases visions of this or the special Act or an Act incorporated therewith (d), ^gMstted. except where such monies shaU have been so deposited by reason of the wilful refusal (e) of any party entitled thereto to receive the same, or to convey or release the lands in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required, it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland to order the costs of the following matters, including therein aU reasonable charges and expenses incident thereto, to be paid by the promoters of the undertaking (/) (that is to say), the costs of the purchase or taking of the lands or which shall have been incurred in consequence thereof (g) other than such costs as are herein otherwise provided for, and the costs of the investment of such monies in government or real sec^ri- 88 LANDS CLAUSES CONSOLIDATION ACT, 1845. 7&8Vict. ties (A), and of the reinvestment («) thereof in the purchase of other "■ ^^' °- ^^"^'^- lands, and also the costs of obtaining the proper orders (A) for any of the purposes aforesaid, and of the orders for the payment of the divi- dends and interest of the securities upon which such monies shall he invested, and for the payment out {I) of Court of the principal of such monies or of the securities whereon the same shall be invested, and of all proceedings relating thereto, except such as are occasioned by liti- gation between adverse claimants {m) : Provided always, that the costs of one application only for reinvestment in land shall be allowed, unless it shall appear to the Court of Chancery in England or the Court of Exchequer in Ireland, that it is for the benefit of the parties interested in the said monies that the same should be invested in the purchase of lands in different sums and at different times, in which case it shall be lawful for the Court, if it think fit, to order the costs of any such investments to be paid by the promoters of the under- taking (n). Costs payabl( by company. No vendor's lien for costs. Discretion of Court. Arranged costs. Where no jurisdiction. "Special Act." " Incorpo- rated there- with." I As the section applies to cases where the company uses its compulsory powers cither under the preceding sections, or under sect. 85 (see ^x parte Flower, 1 Ch. 599), the Court inclines in doubtful cases to make the company pay the costs {Ex parte Marshall, 1 Phill. 660 ; Se long, 10 Jur. N. S. 417 ; Re Jones, 4 Jur. N. S. 581, 887 ; 6 "W. R. 614, 762). The costs payable by the company (or companies, see note (/) ) may be divided into — (1) Costs of the purchase and consequential thereon, see note_(j). (2) Costs of interim investment in government or real securities, see note (A). (3) Costs of reinvestment and payment out, including successive partial invest- ments or abortive attempts to invest, see note (i). (4) Costs of orders, see note (/c). (5) Costs of " proceedings relating thereto," including costs arising from the land taken being subject to suits, or to incumbrances, or belonging to persons under disability, see notes (A) and (m). The section does not authorise the Court to order the company to pay the costs out of any particular fund (-B« Neath % Brecon Railway, 9 Ch. 263). The costs of all proceedings in Court are now in the discretion of the Court or Judge (Garnett v. Bradley, 3 App. Cas. 944 ; Ex parte Mercer^ Co., 10 Ch. D. 481 ; E. S. C. (1883), Ord. LXV. r. 1, and notes to that rule, infra) ; but in pro- ceedings under the Lands Clauses Act the Court follows the rules as to costs laid down by that Act as explained and illustrated by the decided cases. As to the costs under special Acts, see note [d), infra. The Court refused to declare that the landowner had a vendor's Hen in respect of the costs (Earl Ferrers v. Stafford and TTttoxeter Railway, 20 W. E,. 478). If the landowner has put the company to unreasonable expense the Court may disallow him his costs, even of an application for payment out {Re Marylebone Im- provement Act, 19 W. E. 1068). Where, hy arrangement, a landowner was to be paid principal, interest, and costs, the taxing master was directed to allow all reasonable costs incurred by the vendor before the Parliamentary Committee {Cooper v. L. C. ^ D. Railway Co., 17 L. T. 283). When a company was insolvent, and the vendor was entitled for life only as rector, his costs were ordered to be paid out of the purchase-money {Re Glebe Zands of Great Teldham, 9 Eq. 68). When purchase-money paid into Court has been carried to the credit of a cause, but the account is not entitled in the ' matter of the Act, the company cannot be made to pay costs {Brown v. Fenwici, 14 W. E. 257 ; W. N. (1866), 6 ; Frescott v. Wood, 37 L. J. Ch. 691 ; W. N. (1868), 123 ; Fisher v. Fisher, 17 Eq. 340 ; Nock v. Noclc, W. N. (1879), 125). On an appUoation for payment out they ought not to be served, and if the applicant has served them he may be ordered to pay their costs, see Frescott v. Wood, and the other cases cited. {d) Por the meaning of "the special Act," see sect. 2, supra. The Lands Clauses Act is held to be " incorcorated " with all subsequent Acts, authorising the taking of lands {Ex parte Vicar of St. Sepulchre's, 4 De Gt. J. & S. 232 ; 12 W. R. 499), unless such subsequent Act contains provisions inconsistent with such Incorporation LANDS CLAUSES CONSOLIDATION ACT, 1845. 39 {Se Cherry's Estates, i De G. F. & J. 332 ; 10 "W. E. 305 ; He St. Katharine's Dock 7 & 8 Vict. Co., 14 W. R. 978). Wliere a speoial Act -was repealed and re-enaoted by a o. 18, s. 69-87. new Act, -with. wUoh was incorporated, the Lands Clauses Act, the special Act was held to be incorporated with the Lands Clauses Act (Ee Ellison, 8 De G. M. & G. 62), see Se Solden, 1 Jur. N. S. 995 ; Re Shuttleworth, 4 GifC. 87 ; He Derriman, W. N. (1866), 269. In oases -where a special Act was dated before, and had not been incorporated Practice with the Lands Clauses Act, it was the practice of the Court of Exchequer to make under speoial the company pay costs, whether they were given by the special Act or not ; but the Acts. Court of Chancery was more strict, and held that the company need only pay such costs as were provided for by their special Act. (See the cases collected in Morgan and ■Wurtzhurg on Costs, p. 303.) The matter is of no great importance now as the costs are in the discretion of the Court in all cases, and the Court generally adopts the rules laid down by the L. C. C. Act (Ex parte Mercer^ Co., 10 Ch. D. 481 ; JJe Sanbury, W. N. (1883), 116 ; Ex parte Sospital of St. Katharine, 17 Ch. D. 378 ; Re Lee and Hemingway, 24 Ch. D. 669). (e) For cases of doubt, whether the refusal is wUful, see Re Jones, 4 Jur. N. S. What is not 581 ; Ex parte Marshall, 1 PhU. 560. A wilful refltsal means a capricious refusal ; a wilful and a reasonable objection, though ultimately overruled, is not a wilful refusal refusal, within the section; Bee Ex parte Sradshaw, 16 Sun. 174; Re Windsor Railway, 12 Beav. 522 ; Ex parte Railston, 15 Jur. 1028 ; and Ex parte Dashwood, 3 Jur. N. S. 103; and see also .Ec parte Lawson, 17 W. E. 186; audife Divers, 1 Jui. N. S. 995. But where a vendor insisted upon payment, not only of the purchase-money, but What is a of his costs also, before he gave up possession, and the company consequently paid wilful refusal, the purchase-money into the bank under the 76th section of the Act, V.-C. Wood, on a petition to obtain payment out of the money, held that the vendor had been guilty of " wilful refusal," and had thus disentitled himself to receive costs [Re Turner's Estate, 10 W. E. 128; and see also Ex parte Syde, cited in Seton, p. 1443). As to wilful neglect, see Re Woodbum, 13 L. T. 237 ; Re Marylebone Improvement Wilful Act, 19 W. E. 1058. neglect. (/) Where lands are taken by several companies, the costs of an application for Where several payment out of the purchase-monies must be borne by the companies, or, if any of companies them have been amalgamated, by such of them as are subsisting at the time of the paid in pur- application, in equal shares (Ex parte Gashell, 2 Ch. D. 360 ; 45 L. J. Ch. 368 ; 24 chase-money. W.'E. 752; Ex 'parte Ecclesiastical Commissioners, W. N. (1873), 173). And the same rule applies in general to the costs of an application for re-investment in land, except that llie costs of the ad valorem stamp on the conveyance must be borne by the companies rateably, according to the amount contributed by each to the pur- chase-monies (Ex parte Bishop of London, 2 De G. E. & J. 14 ; Ex parte Corporation of London, 5 Eq. 418 ; Re Maryport and Carlisle Ry. Co., 1 N. E. 506; 11 W. E. 410 (S. G. 32 Beav. 397 ; 1 N. E. 645 ; 11 W. E. 507, contra, is overruled) ; Ex parte fiorpus Christi College, Oxford, 13 Eq. 334 ; Re Leigh, 6 Ch. 887 ; Ex parte Governors of Christ's Sospital, 27 W. E. 458 ; Re Byron, 1 De G. J. & S. 358 ; 2 N. E. 294 ; 8 L. T. 562 ; Re Merton College, 1 De G. J. & S. 361 ; 3 N. E. 598 ; 10 Jur. N. S. 223 ; 12 W. E. 503 ; 10 L. T. 8 ; Ex parte Governors of Christ's Sospital, 2H. &M. 166; London and Brighton Ry. Co. v. The Shropshire Ry. Co., 23 Beav. 605) ; and a surveyor's fee will be apportioned in the same way as the costs of the ad valorem stamp [Ex parte Corporation of London, 5 Eq. 418 ; Re Power, W. N. (1876), 205). ^ ,, , Where, however, there is great inequality in the amounts, such as would produce extreme hardship and injustice, the costs maybe apportioned (Ex parte Governors of Bartholomew's Sospital, 20 Eq. 369 ; Ex parte Christ Church, 9 W. E. 474 ; Ex parte Governors of St. Thomas's Sospital, 7 W. E. 425 ; Re Byron's Settled Estates, \ Tie Or. J. & S. 358 ; 2 N. E. 294 ; Ex parte Dean of Christ Church, W. N. (1872), 201) ; but see Ex parte Governors of Christ's Sospital, 2 H. & M. 166). _ The landowner ougit to make one apphcation only for payment out, or reinve^- ment of the money paid in by the several companies (Ex parte Lord Broke, 11 W. E. ^^ Where two funds paid into Court had been dealt with by different branches of When funds the Court, and it was desired to deal with both funds at the same time, leave was are m ddEer- given to present one petition in both matters in one branch of the Court without ^nt branches toansferrhig either of the matters {Re Lord Arden, 10 Ch. 445). See, too. Re of the Court. ButterJUld, 9 W. E. 805 ; Re Gore Langton, 10 Ch. 328. ,.,-,„, ,„„„ r„of. -f (g) The costs of the purchase or taking of the lands, or which shall have been Costs of rn^ei in consequent thereof, include the costs of ascertaimng the value of the purc^e land conveyed, e.g.,-bj apportionment of ground-rents (Ex parte Flowc-l Ch. or takmg. 599); »««<* in cases where the purchase is not compulsory, see note (p), p. 45 . (, , ■ They also include costs of a power of attorney from parties abroad (& Godley 10 Costs ot con- Ir Eq Eep 222 ; Ex parte Incumbent ofGuilden Sutton, 8 De G. M. & G. 380 ; 2 veyance. 40 LANDS CLAUSES CONSOLIDATION ACT, 1845. 7&8Viot. u. 18, H. 69-87. Costs of interim in- vestment. Costs of and ' incident to paymeiit of dividends. Costs of rein- vestment in land; in redeeming incumbrances or land tax. What are costs of rein- vesting in laud. Petitions under Trustee Act, &c. Costs where . reinvestment in land is asked for by person abso- lutely entitled. Special costs of purchase. Jur. N. S. 793), and costs of conveyance generally. As to costs of taking lands which are the subject of a suit, see note (4), infra. (A) The costs of interim investment include the broker's commission (Ea; parte Corporation of Trinity Souse, 3 Hare, 95 ; iJe Sraithwaite, 1 Sm. & Giff. App. xv. ; Hx parte Sari of Sarhorough, 22 L. T. (0. S.) 115). The company must pay the costs of an interim investment either in stock (JJe Liverpool Railway Co., 17 Beav. 392), or on real security {Re Flemon, 10 Eq. 612; Be Sewart, 18 Eq. 278 ; Re Smith, 9 Eq. 178 ; Re Blyth (Lord Chancellor Selbome), 16 Eq. 468 ; 21 W. E,. 819 ; Reading v. Samilton, 5 L. T. 628) ; and without any condition as to the costs of any future permanent investment {Re Blyth; Re Sewart; the oases of Re Lomax, 34 Beav. 294 ; Re Wilkinson, 16 W. R. 537 ; and Re Flemon (on this point) must be considered overruled). See also Ex parte Eton College, 15 Jur. 45 ; 3 Ely. Ca. 271. On an application for interim investment partly in securities authorised by the special Act, .and partly in debenture stock under the provisions of the Settled Land Act, 1882, the public body must pay the costs of investment [Re Hanbury, W. N. (1883), 116; 31 W. R. 784). The costs of, and incident to, the payment of the dividends must be paid by the company {Ex parte Ineumbent of Guilden Sutton, 8 De Gr. M. & Gr. 380 ; 2 Jur. N. S. 793; Ex parte Eccles. Commissioners, 39 L. J. Ch. 623). So where the purchase-money of leaseholds was invested in consols, and the dividends thereon did not amount to the rents previously payable, so that yearly sales were necessary in order to satisfy the tenant for life, the costs of such sales were held to be payable by the company {Re" Zong, ' 1 W. E. 226 ; and see Re Edmunds, 35 L. J. Ch. 538 ; "W. N. (1866), 111 ; 14 W. R. 507). As to the costs of an application for payment of dividends to persons successively entitled, see Re Jolliffe, 9 Eq. 668, and other cases in note {k), infra. (i) The section provides that the company shall pay the costs of the reinvestment, in oases where the reinvestment is in lands or hereditaments {Re Lathropp's Charity, I Eq. 467) ; for if a company, acting under its compulsory powers, deprives a man of his land, it is bound, at its own cost, to place him in possession of land of equal ysihxB {Ex parte Rector of Solywell, 2 Dr. & Sm. 465). But the section does not provide that when the purchase-money is applied in any of the other modes autho- rised by the 69th section, the company shall pay any costs other than those of the application, and, accordingly, the costs of applying the purchase-money in dis- charge of incumbrances have been held not to be payable by the company {Ex parte Corporation of Sheffield, 21 Beav. 162 ; Ex parte Town Trustees of Sheffield, 8 W. R. 602 ; Ex parte Earl of Sardwicke, 1 De G. M. & a. 297 ; 17 L. J. Ch. 422 ; Re Teates, 12 Jur. 279 ; Re Mark's Trust, W. N. (1877), 63) ; but the contrary was held in Ex parte Trafford, 2 T. & C. Ex. 522 ; Ex parte Bishop of London, 2 De G. E. & J. 14 ; and see Re London ^ South Western Railway Act, 2 J. & H. 390 ; and the costs of proceedings to redeem the land tax can certainly be ordered to be paid by the company {Re London ^ Brighton Railway Co., 18 Beav. 608 ; Ex parte Beddoes, 2 Sm. & Giff. 466 ; Re Bethlom Hospital, 19 Eq. 457 ; 44 L. J. Ch. 4(J6 ; 23 W. R. 644, where the cases are discussed by Jessel, M. E. ; Re Vicar of Queen Camel, II W. E. 503 ; Ex parte Eospital of St. Katharine, 17 Ch. D. 378). The company have had to pay the following costs under the head of costs of rein- vesting the purchase-money in other lands : Costs of enrolling a purchase deed {Re Governors of Christ's Hospital, 12 W. R. 669). Of referring the title to the conveyancing counsel of the Court {Re Morgan Jones, 6 W. R. 762). Of a second petition rendered necessary by the lands selected for reinvestment being the subject of a chancery suit {Carpmael v. Froffit, 17 Jur. 875 ; 23 L. J. Ch. 165) ; and see infra, note (A). Of a petition under the Trustee Act rendered necessary by the death of the vendor leaving an infant heir {Re Lowry, 15 Eq. 78). See cases cited, p. 45, post. But not the costs of the vendor's appearance on the petition {Re Dylar, 1 Jur. N. S. 975) ; nor the fine payable on a reinvestment in purchase of copyholds, the fine being part of the purchase-money {Ex parte Vicar of Sawston, 6 W. E. 492 ; 4 Jur. N. S. 473). _ The company is liable to pay the costs of reinvestment in land, even where a person who has become absolutely entitled to the money asks for such reinvestment {Re Jones, 39 L. J. Ch. 190 ; 18 W. R. 312 ; Re Eodd, W. N. (1871), 83 ; and see Re Barker, 13 Eq. 495 ; 26 L. T. 12 ; 20 W. R. 289 ; Re Bagot, 14 W. R. 471 ; Re Fick, 10 W. R. 365 ; Re Lye, W. N. (1866), 20) ; and where a person absolutely en- titled to the money died, having resettled it, the company had to pay the costs of reinvestment in land, to be settled to the uses of the will {Re De Beauvoir, 2 De G. E. & J. 5 ; 8 "W. R. 425 ; and see Re Lye, W. N. (1866), 20). When the money is sought to be reinvested in land upon a contract which throws LANDS CLAUSES CONSOLIDATION ACT, 1845. 41 upon the purchaser costs of the purchase, which in an open contract would be home 7 & 8 Vict, by the vendor, the costs directed to be paid by the company will be Umited to those c. 18, s. 69-87. which in an open contract would be purchaser's costs {JSx parte Governors of Christ's ^^ '• Sospital, 20 Eq. 605 ; Se Temple Church Lands, Bristol, 26 W. R. 259 ; W. N. (1877), 262 ; and see Re Mason, W. N. (1872), 77). The costs of reinvestment in the purchase of other lauds may include the costs of Costs of successive reinvestments, and of bond fide but abortive attemps to reinvest. successive The costs of three successive reinvestments in land were ordered to be paid by the reinvestments company in JJe St. Catharine's Bock Co., 3 Rly. Ca. 514; and see Jones v. Zewis, 2 M. & Gr. 163 ; Re Merchant Tailors' Co., 10 Beav. 485 ; Ex parte Trustees of St. Bartholomew's Hospital, 4 Drew. 425 ; Ex parte Eton College, 3 Rly. Oa. 271 ; Ex parte Bouverie, 4 Rly. Ca. 229; Re Hereford, ^e. Ry. Co., 13 W. R. 134; Ex parte Rector of Loughton, 6 Rly. Ca. 591 (where the company had to pay the costs, though 61. only was invested in the second purchase) ; Re Brandon, 2 Dr. & Sm. 162 ; Ex parte Fishmongers' Co., U "W. R. 81; Re Paddon, W. N. (1878), 65. Where the purchase-money amounted to 125,000^. the Court did not consider six applications tor' reinvestment leaving 38,440/. still uninvested to be unreasonable (Ex parte Hospital of St. Katharine, 17 Ch. D. 378). In Re Kinsey, 1 N. R. 303, the balance remaining uninvested was paid out to trustees under the 71st section. Land having been purchased out of money in Court, an application was made for In redemption reinvestment of a further sum in redemption of the laud-tax, and the company paid of land tax. the costs [Re London and Brighton Ry., 18 Beav. 608). Where attempts not authorised by the Court to reinvest in land fail by reason of Of attempts the Court's disapproval or otherwise, the company does if&t pay the costs, but where to reinvest, the Court has approved, and the purchase goes off for other reasons, the company pays the costs of the bond fide attempt [Ex parte Rector of Holyioell, 2 Dr. & Sm. 463; 13 W. R. 960 ; Re Carney, 20 W. R. 407 ; W. N. (1872), 53 ; 26 L. T. 308 ; Ex parte Copley, 4 Jur. N. S. 297 ; Ex parte Eton College, 7 W. R. 710 ; Re Macdonald, 6 Jur. N. S. 865 ; 2 L. T. 168 ; Ex parte Stevens, 15 Jur. 243 ; Re Hardy, 18 Jur. 370 ; Re WoUey, 1 W. R. 407, 465 ; Re Vaiodrey, 3 Giff. 224 ; Ex pUrte Pumfrey, 4 Rly. Oa. 490 ; Ex parte The Manchester Burial Board, W. N. (1866), 117). (Jc) The costs of the application maybe directed to be paid by the company in the Costs of ob- f olio wing cases : — taining the If the application is for reinvestment, and that not merely strict reinvestment in orders. land, but also in any of the modes allowed by the Court under section 69 ; see Re -^ov reinvest - Lathropp's Charity, 35 Beav. 297 ; 1 Eq. 467, where Re Bucks Railway, 14 Jur. 1065, ment. and Re Oxford, ^c. Railway, 27 Beav. 571, were reviewed. If the application is for payment of the dividends of an interim investment, it is Ij'or payment decided that though there has been an application for interim investment and pay- of dividends ment of dividends to one tenant for life, the company must bear the costs of a to persons further application on the death of such tenant for life for payment of future entitled. dividends to the person subsequently entitled [Re Jolliffe, 9 Eq. 668, where Ex parte Incumbent ofGuilden Sutton, 8 De G. M. & G. 380, was referred to) ; and see JJe Lye, W. N. (1866), 20 ; Re Byrom, 5 Jur. N. S. 261 ; but the company had not to pay the costs of a petition for payment of dividends to new trustees of a settlement, where the origfaial petition was defective [Re Pryor, W. N. (1876), 141 ; 35 L. T. 202 ; see, however, as to the costs of defective and unnecessary petitions, infra, p. 45. If the application is for payment out to the person absolutely entitled, then it the For payment land belongs to several persons, though their interest is derived under the same out. will, they may each apply ; but if two or more appear by one solicitor, they wiU only have one set of costs [Re Nicholl, W. N. (1866), 93). The- company must pay the costs not only of obtaining the orders, but of pro- Costs of ceedings relating thereto except those caused by litigation between adverse orders a,nd claimants (as to which see note (m) ). proceedings Thus where the lands taken are the subject of an administration suit pending in relating the Chancery Division, the company wiU have to pay the costs of proceedings therein thereto, necessitated by the purchase ; seeiinningv. Henderson, 2 De G. & Sm. 485 ; Paterson V. Paterson, 10 L. T. 183 ; Bradshaw v. Fane, I N. R. 159 ; 9 Jur. N. S. 166 ; Re Brandon, 2 Dr. & Sm. 162 ; S. C. mm. Brandon v. Brandon, 9 Jur. N. S. 11 ; Eden v. Thompson, 2 H. & M. 6 ; Brandon v. Brandon, 11 Jur. N. S. 30 ; Henniker v. Chafy, 35 Beav. 124 ; Picardv. Mitchell, 12 Beav. 486 ; Haynes v. Barton, 1 Dr. & Sm. 483 ; and see S. G. 1 Eq. 422 ; Henniker v. Chafy, 28 Beav. 621, 625 ; Re Walker, 7 Rly. Cases, 129 ; Re Taylor, 1 Mao. & G. 210 ; Re Here's Estate, 5 Rly. Cases, 592 ; Re Merchant Tailors' Co., 10 Beav. 485 ; but see Here v. Smith, 14 Jur. 55 ; Re Pieton, 3 W. R. 327 ; Wilson v. Foster, 26 Beav. 398 ; 6 Jur. N. S. 113 ; Sidney v. Wilmer, 31 Beav. 338. Where lands belonging to a lunatic were taken, and the next of kin attended References in inquiries into the propriety of investment, &o., their costs were held payable by the lunacy, company (iJe Briscoe, 2 De G. J. & S. 249 ; and see Re Taylor ; Re Walker ; Re Milrns, 1 Ch. D. 28). 42 LAOT)S CLAUSES CONSOLIDATION ACT, 1845. 7&8Viot. u. 18, s. 69-87. Costs of parties im- properly served. Vexatious appearances. Costs of ser- vice upon and appearance of incuia- branoers. Mortgage created since payment in. Costs of ser- vice upon and appearance of trustees. Costs of appearance of remainder- men. Service on persons entitled to other shares. When re- maindermen, should be served. Ordinary. Ecclesiastical Commis- sioners. But the company is not liable to pay costs of the appearance of parties to the suit who have been improperly served {Sden v. TAompion, 2 H. & M. 6 ; and see Melling v. Mrd, 22 L. J. Ch. S99; Sairey. Zovitt, 12 L. T. (O. S.) 306);. and if parties who might and ought to appear together, vexatiously appear separately, and thereby increase the costs, the company will not have to pay these increased costs {:Ex parte Baroness Braye, 11 W. E. 333 ; and see Ee Nichott, 14 W. E. 475 ; Me Prebend of St. Margaret, 10 L. T. 221). The following rule seems to be now established as to service upon mortgagees and incumbrancers, and the costs consequent thereon : Where there are incum- brancers who, as a matter of form, are necessary parties, but who have no interest in opposing the petition, the proper course is to serve them with a copy of the petition, and tender them thirty shillings for costs, with an intimation that if they appear they will be liable to pay their own costs ; the rule applies equally to peti- tions for reinvestment in land and to petitions for payment out, either to or with the consent of incumbrancers ; but the petitioners will be entitled to add to their costs of the petition (in addition to the thirty shillings), a sum sufficient to cover the costs of an affidavit of service ; see Re Gore Langton's Estates, 10 Ch. 328 ; 44 L. J. Ch. 405 ; 23 W. K. 842 ; 32 L. T. 785 ; Be HaUtead United Charities, 20 Eq. 48 ; Ex parte Jones, 14 Ch. D. 624 ; Be Battison, 4 Ch. D. 207 ; E. S. C. (1883), Ord. LXV. r. 27 (19). The earlier cases were conflicting. The company are not bound to pay the costs of incumbrancers on the interest of a tenant for Ufe {Bx parte Smith, 6 Ely. Ca. 160), unless they are served at the instance of the company {Be Bhmgerford, 1 K. & J. 413), or their interests are affected (Be Nash, 1 Jnr. N. S. 1082 ; and see Be Thomas, 12 W. E._646). Nor is it necessary on a petition for interim investment and payment of dividends to Serve persons having charges on the inheritance prior to the fife estate, and the costs of such parties, 3 served, will not be allowed against the company (Be Morris, 20 Eq. 470 ; 23 W. E. 851 ; and see Be Bowling, 46 L. J. Ch. 668 ; 24 W. E. 729). So, when a mortgage affects part only of the land, but hot the part taken by the com- pany, the company will not be ordered to pay the costs of the mortgagee if served (Be Teates, 12 Jur. 279) ; and where a small portion of the estate only was in mort- gage, and it became necessary to apply to the Court in a pending suit to obtain a release from the mortgagee, it was held that the company were not liable to pay the costs of the application (Bx parte PhiUips, 11 W. E. 54, reversing 8. <7. 2 J. & H. 390). The costs of a mortgagee, whose incumbrance has been created after the lands were taken and the money paid into Court are not payable by the company (Be Middle Level Drainage and Navigation Commissioners, June 23, 1864, V.-C. K. ; Be Jones, 39 L. J. Ch. 190 ; 18 W. E. 312). Where the mortgagee of a tenant for life of lands taken by a railway company die^, and the mortgagor and the executors of the mortgagee petition for payment of the dividends to a transferee of the mortgage, the company are not liable to pay the costs of the petition (Be Syrom, 5 Jur. N. S. 261 ; 7 W. E. 367). The general rule above laid down as to mortgagees applies aJso in the case of trustees, but of course the company must pay the costs of trustees who have been properly served and appear (Be Finoh, 14 W. E. 472 ; Be Diike of Cleveland's Barte Estates, 1 Dr. & Sm. 46 ; Hennilcer v. Chafy, 35 Beav. 124 ; overruling on this point Wilson V. Foster, 26 Beav. 398) ; and see Be Bwmell, 12 W. E. 568 ; Be Bowes, 12 W. E. 929 ; Be East, 2 W. E. Ill ; Ex parte Metropolitan By., W. N. (1868), 204 ; 16 W. E. 997 ; Ex parte Z. ^ S. W. By. Co., 38 L. J. Ch. 527 ; Be Pattison, 4 Ch. D. 207. Generally speaking, if a tenant for life petitions for interim investment or for payment out, or for reinvestment in land, and there is no suit pending or other special circumstances, the petition should not be served on remaindermen or trustees (Ex parte Staples, 1 De G. M. & Gr. 294; Be Whitling, 9 W. E. 830; Be Marner, 3 Eq. 432 ; Be Pawling, 45 L. J. Ch. 568 ; 24 W. E. 729). And where a petitioner is only entitled as one of a class to an aliquot part of the fund service on the other parties interested may be dispensed with (Be Midland By., 11 Jur. 1095). But where the petition is under section 74 for the application of purchase- money paid in respect of leases or reversions which are in settl^nent, and the apportion- ment thereof between tenant for life and remaindermen, the remaindermen are "parties interested" within the section, and are entitled to appear (Be Brailey, W. N. (1866), 109 ; Be Crane, 7 Eq. 322 ; and see Be Bomney, 3 N. E. 287). And when the petition is for reinvestment not in land or hereditaments but in improvements, the remaindermen should be served (Be Leigh, 9 Ch. 684). As to the costs of serving the ordinary, and of his appearance on the petition where his consent is required, see Ex parte Vicar of Creech St. Michael, 21 L. J. Ch. 677, where such costs were allowed ;'bnt compare Ex parte Bishop of London, 2 De G. F. & J. 14, where the costs of the Ecclesiastical CommisBioners, whose LANDS CLAUSES CONSOLIDATION ACT, 1845. 43 consent was necessary to the inyeBtment, and JB« Incumbent of U^hitfield, 1 J. & H. 7 & 8 Vict. 610 ; 9 W. B. 764, where the costs of the governors of Queen Amie's Bounty, 0. 18, b. 69-87. were disallowed against the company. In Ex parte Dean and Canons of Manchester, 28_L. T. 184, the costs of the Churdi Estates Commissioners were ordered to be Governors of paid out of the funds in Court. Queen Anne's Tenants in common interested in money paid into Court by a company are Bounty, entitled to their costs of appearance separately on an application by one of them Church for payment of the money to an incumbrancer of the whole {Jie Braye, 9 Jur. Estates' Com- Vm^" *^*)" missioners. The costs of the Attorney-General on a petition entitled under Sir S. Eomilly's Tenants in Act, 52 Geo. III. c. 101, are payable by the company iRe Zondon, Brighton and „„„_,„_ South Coast Bailway Co., 18 Beav. 608). common. The company are not liable to pay the costs of the official solicitor whom it has -Attorney- become necessary to serve through the fund not having been dealt with for gsiisi^s,!. upwards of fifteen years (iJ« Clarke, 21 Ch. D. 776). Official The company were held liable to pay the costs of freemen of a city where the solicitor, land belonged to a corporation [Ex parte Mayor of Lineoht, 6 Ely. Ca. 738). Ereemen. The Court will take care that the company are not put to unnecessary costs ; e.g., TTimeoeasarv of troneoessary matter in a petition {Ex parte Oshaldiston, 8 Hare, 31 ; Haire v. „„-+- ^^ Lovitt, 12 L. T. (O. S.) 306) ; but the introduction into the petition of clauses in special ^rt« is not necessarily impertinent (JSe Lilley, 17 Sim. 110) ; and see as to Lengthy costs of unnecessary matter generally, R. S. C. (1883), Ord. LXV. r. 27 (20), petitions. infra. Unnecessary So, if a second petition is necessary by reason of a defect in the first, the com- and defective pany will not have to pay the costs; see lie London and Brighton Bailway Co., 18 petitions. Beav. 608, 612; Ex parte JoUiffe, 3 Jur. N. S. 633 ; Be Byrom, 5 Jur. N. S. 261 ; Be Leigh, 6 Ch. 887 ; Ex parte JVinder, 6 Ch. D. 696 ; secus where the defect was in the order [Be Goe, 3 W. E. 119, where the costs of two necessary petitions were allowed against the company ; and see Be Metropolitan Bailuay Co. and Maire, W. N. (1876), 245) ; but see Be Oakham School, 23 L. T. (0. S.) 261 ; and Be Pryor, W. N. (1876), 141 ; 35 L. T. 202. See also JJe Pattison, 4 Ch. D. 207 ; Be Nicholls, W. N. (1866), 93. Where two portions of a settled estate had been taken by different corporations, and the purchase-money had been paid into two dififerent branches of the Court, and two petitions were presented for reinvestment of the two funds together in one purchase, the Court only allowed the costs of one as costs under the Act (Be Gore Langton's Estates, 10 Ch. 328); and see Be Butterjield, 9 W. E. 805; Be Lord Arden, 10 Ch. 445. When the purchase-money has been once paid out, or transferred to a new Subsequent account {Melting v. Bird, 22 L. J. Ch. 599 ; 17 Jur. 155), the company ought not dealings with to pay tile costs of any further applications rendered necessary by subsequent the money dealings with, or settlements of the property by, the landowner, or by the appoint- after transfer, meut of new trustees of the property {Be Andenshaw School, 1 N. E. 255) ; and see Ex parte Hordem, 2 De G. & Sm. 263 ; Be Byrom, 5 Jur. N. S. 261 ; 7 W. E. 367. Where an order directed payment of dividends to a tenant for hfe, the company were held not liable to pay the costs of a subsequent order for payment of them to an assignee of the tenant for life {Ex parte Vicar of Kidderminster, 7 W. E. 482 ; Be Pick, 10 W. E. 365). As to the costs where the land belonged to a charity which it has subsequently become necessary to reconstitute, see Be Shake- speare Walk School, 12 Ch. D. 178 ; Be St. Paul's Schools, 52 L. J. Ch. 454 ; 31 W. E. 424. Where other money is invested besides the sum paid in by the company, the Where other Court will take care that the costs are not thereby increased {Be Branmer, 14 Jur. money is in- 236 ; Be Loveband, 9 W. E. 12 ; Ex parte Sodge, 16 Sim. 159 ; Ex parte Tetley, 4 vested besides Ely! Ca. 55 (but see Ex parte Lord Palmerston, ibid. 57) ; Ex parte King's College, that paid in. 5 De G. & Sm. 621 ; Ex parte Newton, 4 Y. & CoU. 518 ; Attorney-Gen. v. Mayor of Bochester, 15 W. E. 765 ; W. N. (1867), 142 ; Ex parte Ecclesiastical Commissioners, 13 W. e'. 575). (l) The costs of payment-out include those of a disentailing deed {Be Brooking, Costs of pay- 2 Giff. 31 ; Ex party Vaudrey, 3 Gi£E. 224) ; and of haU-yearly sales where necessary ment out, for apportionment as between tenant for life and remaindermen of leaseholds ; see Be Long and Be Edmimds, cited note (A), ante. As to costs of reinvestment when asked for by a person absolutely entitled, see note at foot of p. 40, ante. _ . ^ ., ^ „ ■, ^ „ (m) The words "except such as are occasioned," &c., refer to "costs" and not Exception of to "proceedings " {Be Cant, 1 De G. E. & J. 153 ; Ex parte Beotor of St. James, costs of ad- 9 Jur N S 1222). " Adverse litigation arises where different parties set up adverse verse litiga- titles'to the estate" {Askew v. Woodhead, 14 Ch. D. 27, per Jessel, M. E.). The tion. usual form of order (on which see Seton, p. 1441, and Ex parte Hooper, 1 Dr. 269), directs the company " to pay the coats of obtaining this order, &c., and of all the 44 LANDS CLAUSES CONSOLIDATION ACT, 1845. 7 & 8 Vict. c. 18, s. 69-87, Adverse claimants. Successive reinvest- ments. Form of con- veyances. proceedings relating thereto." ' ' Notwithstanding what is stated in Re Cant, 1 De Gr. F. & J. 159, andiJe Courts of Justice Commissioners, W. N. (1868)-, 124, it is not and has not been, the practice to insert the exception as to the costs of litigation between adverse claimantB, unless it appears or is suggested that some litigation has taken place " (Seton, p. 1441). In a simple case the order should specify what costs fall within the exception {Re Tookey, 16 Jur. 708 ; Re Longuorth, 1 K. & J. 1 ; Ex parte Collins, 15 L. T. (0. S ) 362 ; Ex parte Palmer, 13 Jur. 781). And see further as to the form of the order. Re Sayward, 9 L. T. 320 ; Ex parte Great Southern and Western %., Ir. E. llEq. 497. ■ This exception 'only applies where there is an actual litis contestatio [Re Longworth, I K. & J. 1 ; Re Spooner, ibid. 220 ; Re Hvngerford, ibid. 413 ; JSx parte Sooper, 1 Drew. 264). Costs incident to the ordinary administration of a fund by the Court, e. g. the costs of an inquiry, how much of a fund belongs to a mortgagor and how much to a mortgagee must be borne by the Co. {Re Bareham, 17 Ch. D. 329 ; Eden v. Thompson, 2 H. & M. 6). Where the land belonged to a devisee for life with remainder to the testator's heirs, it was held that the company must pay the costs of two petitions by two co-heirs, and also the costs of investigating the title of other parties who claimed to be heirs, in answer to advertisements ordered to be issued by the Court, except such costs as were occasioned by affidavits of the petitioners in answer to such claims {Re Spoonei-, 1 K. & J. 220 ; and see Haire v. Lovitt, 12 L. T. (0. S.) 306). A contest between tenant for life and remainderman as to how much of a fund belonged to one of them, and how much to the other, was held by V.-C. Bacon to be within the exception ; but this decision was disapproved of by Jessel, M. E. {Askew V. Woodhead, 14 Ch. D. 27; 41 L. T. 670; 42 L. T. 567). It was said by V.-C. Kindersley, in Re Tookey, 16 Jur. 708, that the excep- tion was not intended to apply to a question of construction decided by the Court upon petition, but to a case where an action at law was necessary to decide the rights of the parties. See, too. Ex parte Palmer, 13 Jur. 781 ; Re Singleton, II "W. R. 871 ; Re Wilson, W. N. (1867), 110. But where the petitioner, although there was no actual hostile litigation, was obliged to bring parties before the Court to contest questions with him he paid their costs, though the general costs were borne by the company {Ex parte Cooper, 2 Dr. & Sm. 312 ; 34 L. J. Ch. 373 ; 11 Jur. N. S. 103 ; 13 "W. R. 364 ; 11 L. T. 661). Where a question arising on the construction of a wiU relating to the property taken was argued by the petitioner and the respondents, the company was only ordered to pay one set of costs {Ex parte Styan, Johns. 387 ; Ex parte Tales, 17 W. E. 872 ; 20 L. T. 940 ; W. N. (1869), 150). In another case, an additional application having been rendered necessary by litigation, no order as to costs was made thereon, {Ex parte Joliffe, 3 Jur. N. S. 633). But in Carpmael v. Proffitt, 23 L. J. Ch. 165 ; 17 Jur. 875, it was held that the fact of a second petition being rendered necessary by the investment of the purchase-monies in other lands sold in a pending suit did not bring the case within the exception in the Act. When a company has, by virtue of two different Acts, taken two pieces of land held under the same title, with knowledge that such title is disputed, and taken a conveyance from both claimants, it must pay the costs of two applications for investment, including the costs in each case of the appearance of the adverse respondents {Re Butterjield, 9 W. E. 805). But where two parties claimed the money and the company paid it into Court, and one of them abandoned his claim, the company were held not liable for the costs of payment in or of the petition by the other for payment out, the Court doubting indeed whether the company were not in strictness entitled to have their costs paid by the claimant {Re English, 13 W. E. 932 ; 12 L. T. 561 ; see, however, Re Duke ofSorfoWs Estates, W. N. (1874) 158 ; 22 W. E. 817). In Re Bagot, 10 W. E. 607, V.-C. Kindersley, upon a special Act containing clauses as to costs substantially the same as those in the Lands Clauses ConsoSdation Act, decided that the company must pay aU the costs of a petition to obtain payment of money out of Court, involving a question of disputed conversion, except the costs of the petitioner and of a respondent, both of whom had failed in their contentions. («) See note (i), ante. And with respect to the conTeyances of lands, he it enacted as follows : LXXXI. Conveyances of lands to be purchased under the provisions of this or the special Act, or any Act incorporated therewith, may be according to the forms in the schedules (A) and (B) respectively to this Act annexed, or as near thereto as the circumstances of the case will LANDS CLAUSES CONSOLIDATION ACT, 1845. 45 admit, or fey deed in any other form wMoli the promoters of the tinder- 7 & 8 Viet, taking may think fit ; and all conveyances made according to the forms "' '^' ~ " in the said schedules, or as near thereto as the circumstances of the case will admit, shall be effectual to vest the lands thereby conveyed in the promoters of the undertaking, and shall operate to merge all terms of years attendant by express declaration or by construction of law on the estate or interest so thereby conveyed, and to bar and to destroy all such estates tail, and all other estates, rights, titles, remainders, reversions, limitations, trusts, and interests whatsoever of and in the lands comprised in such conveyances which shall have been purchased or compensated for by the consideration therein mentioned ; but although terms of years be thereby merged they shall in equity afford the same protection as if they had been kept on foot and assigned to a trustee for the promoters of the undertaking, to attend the rever- sion and inheritance. LXXXn. The costs of all such conveyances (o) shall be borne by Costs of the promoters of the undertaking, and such costs shall include all conveyances, charges and expenses incurred {p) on the part as well of the seller as of the purchaser, of all conveyances and assurances of any such lands, and of any outstanding terms or interests therein, and of deducing, evidencing, and verifying the title to such lands, terms, or interests, and of making out and furnishing such abstracts and attested copies as the promoters of the undertaking may require, and all other reasonable expenses incident to the investigation, deduction, and verification of such title. (o) The costs of a conveyance prepared but not used by reason of inoumbranoers Costs of refusing to join, were held to be payable by the company in Be Divers, 1 Jur. N. S. couveyanoe. 995. The costs of conveyance under this section do not include costs of a collateral agreement with the vendor, which, though part of the oonsiderationf or the purchase, forms no part of the conveyance [Se Zietch and Kewney, 15 W. E. 1055). {ji) There is a distinction between the costs payable by the company under this Costs undei* section and under section 80, mpra, the reason being that the former section refers this section to cases where the company uses its compulsory powers and therefore has to pay all different from the costs arising out of the transaction ; but this section relates to purchases by costs under agreement wheie the vendor can make his own terms, or, if he goes before a jury, can sect. 80. urge any incidental expenses before the jury as a ground for increase of compensa- tion ; therefore this section deals only with the legal expenses of making a title and conveying the property, taking those expenses in their largest sense {e. g., including the taking out administration for purposes of conveyance, Ee Liverpool Improvement Act, 5 Eq. 282 ; overruling JJe S. WalesMy., HBeav. 418), but not with any costs of ascertaining what that is which is to be put into the document {Bx parte Suck, 1 H. & M. 519 ; 33 L. J. Ch. 79, where the costs of apportioning ground-rents between Costs of houses taken and houses not taken were disallowed against the company on taxation) : apportion- and see JEr parte Incumbent of Alsager, 2 W. E. 324 ; £x parte Feoffees of Addies' ment ; Charity, 3 Hare, 22 ; Se Woodburn, 13 L. T. 237. As to the costs occasioned by a vendor dying and leaving an infant heir or devisee, of petition so that a suit or petition under the Trustee Act is necessary, see Lake v. Eastern under Trustee Counties Ry., 19 L. T. (O. S.) 323 ; Me Loviry, 15 Eq. 78 ; Me Manchester % Southport Act. My., 19 Beav. 365 ; Eastern Coimiies By. v. Tufnell, 3 Ely. Ca. 133 ; Midland Counties By V Wetteomb, 11 Sim. 57; Midland Cotmties My. v. Caldecott, 2 Ely. Ca. 394; Armitage v. Askham, 1 Jur. N. S. 227 ; Ex parte Cave, 26 L. T. (O. S.) 176. ' Where the agreement was to sell in fee simple, the company had not to bear the expense of discharging a mortgage (Ex parte Fhillips, 3 De G. J. & S. 341 ; 1 1 W. E. 64 ; overruling S. C. 2 J. &H. 390). LXXXin. If the promoters of the undertaking and the party Taxation of entitled to any such costs shall not agree as to the amount thereof (q). costs of con- "' veyanoes. 46 LAOTJS CLAUSES CONSOLIDATION ACT, 1845. 7 & 8 Viet, such costs shall be taxed by one of the taxing-masters of the Court of c. 18, 8. 69-87. Qhancery, or by a Master in Chancery in Ireland, upon an order of the same Court, to be obtained upon petition in a summary -way by either of the parties ; and the promoters of the undertaking shall pay what the said master shall certify to be due in respect of such costs to the party entitled thereto, or, in default thereof, the same may be recovered in the same way as any other costs payable under an order of the said Court, or the same may be recovered by distress in the manner hereinbefore provided in other cases of costs ; and the expense of taxing such costs shall be borne by the promoters of the under- taking, unless upon such taxation one-sixth part of the amount of such costs shall be disallowed, in which case the costs of such taxation shall be borne by the party whose costs shall be so taxed, and the amount thereof shall be ascertained by the said master, and deducted by him accordingly in his certificate of such taxation (r). (?) See Se Shades, 8 Beav. 224 ; lake T. Eastern Counties My. Co., 19 L. T. (0. S.) 323. (r) See JEx parte The Great Western Sy. Co., 3 Bly. Oa. 516 ; and Ee Spooner, 1 K. & .T. 220. An order for taxation cannot be obtained after the costs have been paid {Ex parte Somerville, 23 Ch. D. 167 ; 31 W. B. 518). [By sect. 84, the company may enter on the lands before purchase, in order to survey, but not for any other purpose except after deposit of the price imder the following sections.] Promoters to LXXXV. Provided also, tHat if the promoters of the undertaking entOT on knds ^^^^^ ^® desirous of entering upon and using any such lands before an before pur- agreement shall have been come to, or an award made, or verdict ^kf ' ° de- given for the purchase-money, or compensation to be paid by them in posit by -way respect of such lands, it shall be lawful for the promoters of the of security, undertaking to deposit (s) in the Bank by way of security, as herein- bond, after mentioned, either the amount of purchase-money or compensation claimed by any party interested in or entitled to sell and convey such lands, and who shall not consent to such entry, or such a sum as shaU, * By 30 & 31 by a surveyor appointed by two justices* in the manner hereinbefore 36 th^^'^' provided in the case of parties who cannot be found, be determined to Board of be the value of such lands, or of the interest therein which such party Trade ap- jg entitled to or enabled to sell" and convey, and also to give to such surveyor. party a bond (<), under the common seal of the promoters, if they be a corporation, or, if they be .not a corporation, under the hands and seals of the promoters, or any two of them with two sufficient sureties, to be approved of by two justices* in case the parties differ, in a penal sum equal to the sum so to be deposited conditioned for payment to such party, or for deposit in the Bank («) for the benefit of the parties interested in such lands, as the case may require under the provisions herein contained of all such purchase-money or compensation, as may in manner hereinbefore provided be determined to be payable by the promoters of the undertaking in respect of the lands so entered upon, together with interest thereon, at the rate of five pounds per centum per annum, from the time of entering on such lands, untU such pur- LANDS CLAUSES CONSOLIDATION ACT, 1845, 47 chase-money or compensation shall be paid to any sueh party or 7 & 8 Vict, deposited in the Bank for the benefit of the pajrties interested in such °- 1^' «■ 69-87. lands, under the provisions herein contained («) ; and upon such deposit by way of security being made as aforesaid, and such bond being delivered or tendered to such non-consenting party as aforesaid, it shall be lawful for the promoters of the undertaking to enter upon and use such lands without having first paid or deposited the pur- chase-money or compensation in other cases required to be paid or deposited by them before entering upon any lands to be taken by them under the provisions of this or the special Act. («) See Kerr on Injunctions, p. 134, as to this section. The section does not Landowner's apply to interference with an easement {Clark v. School Board for Zondon, 9 Ch. rights, inde- 120). The company are not to proceed under this section unless there is an urgent pendently of need for imme i-f > _ As to who may apply, see rule 6 of Chancery Funds Amended Orders, p. 53, ante. The trustees are not the proper persons to present the petition, though the Court (see Re Trower, 1 L. T. 64) wiU make the, order on their petition {Re Hutchin- son, 1 Dr. & Sm. 27, where V.-C. Endersley, following the decision in Re Cameau, 2 K. & J. 249, allowed the trustees only respondents' costs, and gave the carriage of the order to the cestuis que trust) ; and see also Re Poplar School, 8 Ch. D. 543 ; and the request of one of the cestuis que trust that they should present the petition is not sufficient to justify them in doing so. A person not mentioned in the trustee's affidavit may apply {Re Pattrelk 7 Ch D 647, not foUowing Re Jephson, 1 L. T. 5). ' ' TEUSTEE RELIEF ACT, 1847. 59 On the application of an infant domiciled in Scotland (who was above the age of 10 & 11 Vict. puberty), and her curator properly appointed, a fund which had been brought into c. 96, s. 2. Court under this Act was ordered to be transferred into the ioint names of the infant and her curator (JJe Crichion, 24 L. T. (O. S.) 267). Infant and In £e Gamier, 13 Eq. 532, the Court declined to pay out the fund to a mmtor curator. bonis appointed by a foreign Court, but directed the income only to be paid to him. The petition must be supported by proper evidence of the title of the applicant. Evidence and and, if necessary, inquiries will be directed [He Wood, 15 Sim. 469 ; Be Sharpe, ibid, inquiries. 470; Se JBarber, 1 Sm. & G. 118; Se Morgan, 2 W. E. 439). And a person making an affidavit may be cross-examined {Se Bendyshe, 5 W. B. 816). As to trustees taking copies of the affidavits, see Se Lazarus, 3 K. & J. 555. («) A petitioner may apply in formA pauperis {Se Money, 13 Beav. 109 ; and see Se Lancaster, 18 Jur. 229). (0) The following rule as to service is laid down by rules 7 and 8 of the Chancery Service and Eunds Amended Orders, p. 53, ante : — (1), the trustees are to be served with notice costs of ap- of applications by persons interested in the fund ; (2), the persons interested are to pearanco— be served with notice of applications by the trustees. (1) Trustees, &o., paying money into Court, have their costs of appearing as of trustees; respondents to a petition for a stop order {Se Blunt, 10 W. R. 379) or (except in cases of vexatious conduct or needless appearance) to a petition for payment out ; see note (A), ante ; but where the title of a tenant for life petitioning for income is clear, the trustees ought not to appear {Se Evans, 7 Ch. 609 ; Se Battell, 21 W. E. 138 ; and see E. S. G. 1883, Ord. LXV. r. 27 (19), infra). A petition for payment to a lunatic's executors of money paid in by the committee was ordered to be served on the committee though he had passed his accounts (Se Wylde, 5 De G. M. & G. 25). Where a trustee avoided serviee, the order was made upon service at the place mentioned in his affidavit {Ex parte Baugham, 16 Jur. 325 ; but see Se Lawrence, 14 "W. E. 93) . Service on a trustee may be dispensed with in a clear case {Be Young, 5 W. E. 400 ; Se Beauelerk, 11 W. E. 203 ; Se Thomas, ibid. 276) ; and where the house named by trustees for service was pulled down, and the trustees had not been heard of for ten years, service of the petition on them was dispensed with, and an inquiry was directed to ascertain who were entitled to the fund {Be Bolton, 18 W. E. 56 ; "W. N. (1869), 226). (2) As to dispensing with service on the ground that the party to be served is of cestuis que abroad and cannot be heard of, see Be Sansfard, 7 W. E. 199, cited p. 63, ante; trust; Se Jfaylor, 28 L. T. 18. Where inqiiiries had been directed at the original hearing, and it appeared that persons not parties to the proceedings were interested, the Court ordered that the petition, the order made thereon, the chief clerk's certificate and the order for service, should be served on the persons named in the certificate, and that the petition should stand over till sudi service had been effected {Se Battersby, 10 Ch. D. 228). Parties served, who claim no interest, should not appear, and if they do, will get no costs {Be Smith, 3 Jur. N. S. 659 ; Se Birch, 2 K. & J. 369 ; Se Justices of Coventry, 19 Beav. 158 ; but see Ex parte Queen's College, 6 W. E. 9 ; Sudge v. Weedon, 11 W. E. 819). A fortiori, incumbrancers appearing on a petition by a prior incumbrancer, whose debt exhausted the fund in Court, in spite of a notice by the petitioner's solicitor that if they appeared the payment of their costs would be resisted, were held disentitled to costs {Boberts v. Ball, 24 L. J. Ch. 471). Where a tenant for life petitions for payment of income, remaiildeimen need not on petition be served {Be Whitling, 9 W. E. 830 ; S. C. nmn. Be Whiting, 7 Jur. N. S. 754 ; Be by tenant Marner, 3 Eq. 432) ; and the trustees need not appear {Be Evans, 7 Ch. 609 ; Be Battell, for hfe ; 21 W. E. 138 ; and see E. S. C. 1883, Ord. LXV. r. 27 (19), infra). So on a petition that the dividends might be paid to several tenants for life, and the several shares of the corpus carried over to the accounts of numerous remaindermen {Be Hodges, 6 W. E. 487 ; and see Ex parte Fletcher, 12 Jur. 619 ; Strong v. Strong, 6 W. E. 455) ; and in such cases leave may be given to serve some of the parties interested on behalf of the class {Be Oolson, 2 W. E. 111). Where a fund has been carried over to a separate account, the parties interested of persons in the other shares need not be served {Be Sodgson, 2 Eq. E. 1083 ; Se Savikes, interested in 18 Jur. 33) ; so a mortgaged share of funds paid into Court under the Act, may be other shares ; paid to parties clearly entitled, in the absence of the parties interested in the other shares {Se Beford, 21 L. T. (0. S.) 164). A married woman, having a power of appointment over a reversionary trust fund, of persons appointed it by way of mortgage, with a power of sale, under which it was after- who may warda sold. Her husband became bankrupt, and, after the determination of the claim ad- life estate, the trustees paid the fund into Court under this Act. The purchasers versely. thereupon presented a petition for a transfer of the fund to them, which was served upon the trustees only. The Court made the order, subject to a direction that it should not be drawn up for a fortnight, and that the husband's assignees should be 60 TRUSTEE KELiEE ACT, 184?. 10 & llViot. c. 96, s. 2. Parties residing abroad. Substituted service. Lord Chan- cellor, -with Master of the KoUs, &c., may make G-eneral Orders. Construction of expression. "Lord Chan- cellor." served with notice that the fund would be paid out if no objections were taken (-Ec parte Stutely, 1 De G. & Sm. 703). On a reasonable application, in writing, by parties residing abroad, and served with notice of a petition under the Act, lie Court may postpone the order for pay- ment out of Court {Re Hodgson's Will, 22 L. J. Ch. 1055). Substituted service of the petition (Be Sonelli, 18 Eq. 655), or service out of the jurisdiction (Re Haney, 10 Ch. 275; Re Sonelli; Re Fisher, W. N. (1881), 137; 30 W. E. 57 ; Re Morant, W. N. (1879), 144), may be ordered. (p) As to the time for appealing from an order made under the Act, see Re BailUe, 4 Ch. D. 785, ante, p. 51. (q) See Re Fosard, and other cases, p. 58, supra, as to directing an action. The direction is now given by a judge of the Chancery Division. [Sect. III., regulating salary of Acoountant-General, is repealed by the Chancery Funds Act, 35 & 36 Vict. o. 44, post."] rV. And be it enacted, that the Lord Chancellor, with the assistance of the Master of the Eolls, or of one of the Vice-Chancellors, shall have power, and is hereby authorised, to make such orders as from time to time shall seem necessary for better carrying the provisions of this Act into effect. V. And be it enacted, that in the construction of this Act, the ex- pression "the Lord Chancellor" shall mean and include the Lord Chancellor, Lord Keeper, and Lords Commissioners for the custody of the Great Seal of Great Britain for the time being. 12 & 13 Vict. o. 74. TEUSTEB BELIEF ACT, 1849. 12 & 13 VICT. Cap. 74. An Act for the further Belief of Trustees. [28th July, 1849.] Whereas difficulties have arisen in the transfer of securities vested in trustees in certain cases under the provisions of an Act passed in the session of Parliament holden in the 10th and 11th years of the reign of her present Majesty, intituled "An Act for better securing trust funds, and for the relief of trustees," and it is expedient to make a further provision for carrying into effect the objects of the said recited Act : be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that if upon any petition presented to the Lord Chancellor or Master of the HoUs (o) in the matter of the said Act it shall appear to the judge of the Court of Chancery before whom such petition shall be heard that any monies, annuities, stocks, or securities (&), are vested in any persons as trustees, executors, or administrators, or otherwise upon trusts within the meaning of the said recited Act, and that the major part of such persons (c) are TRUSTEE EELIEF ACT, 1849. 61 desirous of transferring, paying, or delivering the same to the Accountant- 12 & 13 Viot. General of the High Court of Chancery under the provisions of the "" ' said recited Act, but that for any reason the concurrence of the other or Court may, others of them cannot he had (d), it shall he lawful for such judge as cation by- aforesaid to order and direct such transfer, payment or delivery to be majority of made by the major part of such persons without the concurrence of the order pay- ' other or others of them; and where any such monies or Government mentor or Parliamentary securities shall be deposited with any banter, broker, t^ugt monies, or other depositary, it shall be lawful for such judge as aforesaid to stocks, or make such order for the payment or delivery of such monies. Govern- j^^q Court, ment or Parliamentary securities, to the major part of such trustees, executors, administrators, or other persons as aforesaid, for the purpose of being paid or delivered to the said Accountant-General as to the said judge shall seem meet ; and every transfer of any annuities, stocks, or securities, and every payment of money, or delivery of securities, in pursuance of any such order, shall be as valid and effectual as if the same had been made on the authority or by the act of aU the persons entitled to the annuities, stocks, or securities so -transferred, or the monies or securities so paid or delivered respectively, and shall fuUy protect and indemnify the Governor and Company of the Bank of England, the East India Company, and the South Sea Company, and all pther persons acting under or in pursuance of such order. (a) The application is now made to a judge of the Chancery Division. (4) Ordinary, debenture and preference stock of a railway company, and India 4 per Cent. Stock, may be directed to be transferred into Court under the Act ; see Re Ferry, W. N. (1874), 61 ; 22 W. R. 432 ; Se GUdstanes, W. N. (1878), 26 ; Ee Moss, 28 W. R. 418. ... («) Where one of three trustees was ill the order was made on the petition of the other two {Me Broadwood, 8 1.. T. 632 ; and see Re Perry ; Re GUdstanes). (d) A trustee who does not concur should be served with the petition (Re Bryant, W. N. (1868), 123). TEUSTEE ACT, 1850. is & 14 Vict. c. 60. 13 & 14 VICT. Cap. 60. An Act to consolidate and amend the Laws relating to the Conveyance and Transfer of Real and Personal Fropertij vested in Mort- gagees and Trustees (a). [5th August, 1850.J {a\ For the scope of the Act, see Bristow v. Bmtli,, L. R. 5 C. P. 80, 91. It Tirovides for eetting in the legal estate of Und where trustees or mortgagees Provisions i are linatic (ISoofss. Z, i, pp. 64, 66), or infant (ss. 7, 8, pp. 67, 68), or trustees to Und. or heirs of mortgagees are out of jurisdiction, or survivor uncertain, or they or their heiTlare no^knS,,^ (sa. 9-15, 19, pp. 68-70), or refuse to convey (1852, ss. 2, 3, "where there is a contingent right in an unborn trustee (1850, s. 16, p. 70) ; 62 TRUSTEE ACT, 1860. 13 & U Vict 0. 60. Copyhold or Duchy lands. Stoclc. Bank of Eng- land. Glioses in action. Charity. Appointment of new trustees. Of persons to convey. Money pay- able to infants or lunatics. Conveyancing Act, 1881. Interpreta- tion of terms. "Lands." §' ahaw; contra. Re Brass, 4 W. E. 764) ; and see Re Bomhe ; Re Dickson, W. N. ?^ 1™ . (1872), 223, S. 0. nom. Re Dixon, 21 W. E. 220. But orders which would be in "enehoianes ; effect administei-ing trusts wiU not be made ; and it seems that instead of vesting a trust fund in the beneficiaries the Court will appoint new trustees, and leave the persons beneficially entitled to take the necessary steps for putting an end to the trusts {Re Currie, 10 Ch. D. 93 ; Re Solland, 16 Ch. D. 672 ; Re Dickson, W. N. (1872), 223, S. C. nom. Re Dixon, 21 W. K. 220 ; but see Re Godfrey, 23 Ch. D. 205 ; 31 W. R. 426). Where one of four trustees of stock was out of the jurisdiction and in three the Court vested in the other three the right to receive the dividends to accrue of four during their joint lives {Re Peyton, 2 De Gr. & J. 290 ; 25 Beav. 317 ; 4 Jur. N. S. trustees. 370, 469). As to the order where a person of unsound mind was trustee of part of a sum of stock, and beneficially entitled to the rest, see Re Stewart,, 2 De Gr. F. & J. 1. The Court has power under this section to vest the right to receive the future dividends, as well as those already accrued {Re Feyton ; see, however, Re Sartnall, 5 De G. & S. Ill ; 16 Jur. 33). XXni. And be it enacted, that where any sole trustee of any stock When trustee or chose in action* shall neglect or refuse to transfer such stock, or to °l * . °^^. , . . ° chose m action receive the dividends or income thereof, or to sue for or recover such refuses to chose in action, or any interest in respect thereof, according to the ^''"^f^''- direction of the person absolutely entitled thereto for the space of provisfonshi twenty-eight days next after a request in writing for that purpose case of lands, shall have been made to him by the person absolutely entitled thereto, 1862 s 2 it shall be lawfid for the Court of Chancery to make an ofder vesting the sole right to transfer such stock, or to receive the dividends or 74 TRUSTEE ACT, 1850. 13 & U Viet, li. 60, [i. 23. " Sole trustee." Service oa reousant trustee. When 9ne of several trustees of stock refuses to transfer or receive and pay over dividends. "Person absolutely entitled." When stock is standing in the name of a deceased per- son, and the personal representative is out of Juris- diction, &B. " Sole name of a deceased person." income thereof, or to sue for and recover such, chose in action, or any interest in respect thereof, in such person or persons as the said Court may appoint (m). (m) This section applies to the case of all the trustees refusing, where there are more than one, as well as to the case of a sole trustee refusing to transfer the stock or receive the dividends (Se Eartnall, 5 De G. & S. Ul ; Re Syatt, 21 Ch. D. 846 ; see, however, Se Spawforth, 12 W. B. 978). The Court has no power under this section to vest the right to receive future dividends {Be Sartnall ; but see Re Peyton, 2 De G. & J. 290 ; 25 Beav. 317 ; 4 Jur. N. S. 370, 469). The 4 th section of the Extension Act extends the provisions of this section to the case of a trustee neglecting to obey an order of the Court ; see Mackenzie v. Mackenzie, 5 De a. & Sm. 338. The words " person absolutely entitled " include new trustees of the stock sought to be transferred (Re Russell, 1 Sim. N. S. 404). But not one of two trustees; nor a tenant for life [Mackenzie v. Mackenzie), unless the application is for payment of dividends (Re Hartnall). The refusing trustee need not be served (Re Baxter, 2 Sm. & G. App. v. ; Ex parte Armstrong, 16 Sim. 296; Re Crowe, 13 Eq. 26). XXIV. And be it enacted, that where any one of the trustees of any stock or chose in action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, according to the directions of the person absolutely entitled thereto {w), for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him or her by such person, it shall be lawful for the Court of Chancery (a;) to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, in the other trustee or trustees (y) of the said stock or chose in action, or in any person or persons whom the said Court may appoint jointly with such other trustee or trustees. (w) As to these words see note (u) to s. 23. (x) Now the Chancery Division of the High Court (Judicature Act, 1873, s. 34). (y) Where one of the executors of a surviving trustee was a lunatic and the other executors refused to transfer shares, part of the trust property, to the person absolutely entitled, it was held that a vesting order could not be made on a petition presented in Chancery only (Re Nicholl, 18 W. E. 443) ; but a vesting order was made on a petition presented in Lunacy and Chancery (Re White, 5 Ch. 698 ; and see Re Wacher, 22 Ch. D. 535). XXV. And be it enacted, that when any stock shall be standing in the sole name of a deceased person (z), and his or her personal repre- sentative {a) shall be out of the jurisdiction of the Court of Chan,cery, or cannot be found, or it shall be uncertain whether such personal representative be living or dead, or such personal representative shall neglect or refuse to transfer such stock, or receive the dividends or income thereof, according to the direction of the person absolutely entitled thereunto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person entitled as aforesaid, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said Court may appoint (i). (z) This includes stock in the name of two deceased persons as being in the name of the survivor (Re Bradshaw, Seton, 523). TRUSTEE ACT, 1850. 75 (a) An executor of a surviving trustee who has not proved is a personal repre- 13 & 14 Viot. sentative within this section {Se Ellis, 24 Beav. 426) ; and so is the next of kin, who o. 60, s. 25. is entitled to take out admiuistration [Re Stroud, "W. N. (1874), 180). (4) An order was madfe under this section where the survivor of the two original " Personal trustees had died without a legal personal representative, and new trustees had been representa- appointed under the will [Se Crowe, 14 Ch. D. 304). tive." Where the survivor of two trustees of stock died leaving no personal representa- tive, Wickens, V.-C, appointed the person beneficially entitled a trustee under this section [Re Dickson, W. N. (1872), 223 ; 27 L. T. 671 ; S. C. mm. Be Dickson, 21 W. R. 220 ; and see lie Price, W. N. (1883), 202). XXVI. And be it enacted, that where any order shall have been Effect of an made under any of the provisions oi this Act, vesting the right (bb) to t;te^leeal "^^ any stock in any person or persons appointed by the Lord Chancellor, right to intrusted as aforesaid, or the Court of Chancery, such legal right shall transfer stoo . vest accordingly, and thereupon the person or persons so appointed are hereby authorised and empowered to execute all deeds and powers of attorney, and to perform all acts relating to-the transfer of such stock into his or their own name or names or otherwise (c), or relating to the receipt of the dividends thereof, to the extent and in conformity with the terms of such order : and the Bank of England, and all companies and associations whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terms of such order as the said Bank of England, or such companies, associations, or persons, would have been bound and compellable to comply with the requisitions of the person in whose place such appoint- ment shall have been made, and shaU. be equally indemnified in com- plying with the requisition of such person or persons so appointed as they would have been indemnified in complying with the requisition of the person in whose place such appointment shall have been made ; and after notice in writing of any such order of the Lord Chancellor, intrusted as aforesaid, or of the Court of Chancery, concerning any stock, shall have been given, it shall not be lawful for the Bank of England, or any company or association whatever, or any person having received such notice, to act upon the requisition of the person in whose place an appointment shaR have been made in any matter whatever relating to the transfer of such stock, or the payment of the dividends or produce thereof. (bb) See s. 6 of the Extension Act, infra. (o) Where it is sought to avoid an immediate transfer to the trustees the order may direct that the trustees are to have the right to call for a transfer of the funds to themselves or to any purchaser or purchasers, the trustees undertaking to hold the proceeds on the trusts of the settlement [Re Peacock, 14 Ch. D. 212 ; 43 L. T. 99 ; 28 W. R. 801). XXVII. And be it enacted, that where any order shall have been Effect of an made under the provisions of this Act, either by the Lord Chancellor, °egal ri^trm intrusted as aforesaid, or by the Court of Chancery, vesting the legal a chose in right to gue for or recover any chose in action, or any interest in ^'*^°'°- respect thereof, in any person or persons, such legal right shall vest accordingly, and thereupon it shall be lawful for the person or persons 76 TRUSTEE ACT, 1850. 13 & 14 Vict. 0. 60, B. 27. Effect of an order vesting copyhold lands, or appointing' any person to convey copyhold lands. Copyholds vested with or without consent of lord. Fine payable. Form of order. When a decree is made for sale of real estate for payment of debts. SO appointed to carry on, commence, and prosecute, in his or their own name or names, any action, suit, or other proceeding at law or in equity for the recovery of such chose in action, in the same manner in all respects as the person in whose place an appointment shall have been made could have sued for or recovered such chose in action. XXVIH. And be it enacted, that whensoever, under any of the pro- visions of this Act, an order shall be made either by the Lord Chan- cellor, intrusted as aforesaid, or the Court of Chancery, vesting any copyhold or customary lands in any person or persons, and such order shall be made with the consent of the lord or lady of the ma^jor whereof such lands are holden, then the lands shall, without any surrender or admittance in respect thereof, vest accordingly; and whenever, under any of the provisions of this Act, an order shall be made either by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, appointing any person or persons to convey or assign any copyhold or customary lands, it shall be lawful for such person or persons to do all acts and execute all instruments for the purpose of completing the assurance of such lands ; and all such acts and instruments so done and executed shall have the same efEect, and every lord and lady of a manor, and every other person, shall, subject to the customs of the manor, and the usual payments, be equally bound and compellable to make admittance to such lands, and to do all other acts for the purpose of completing the assurance thereof, as if the persons in whose place an appointment shall have been made, being free from any disability, had duly done and executed such acts and instruments {d). (d) This section dispenses with the necessity of surrender and admittance, where a vesting order is made with the lord's consent, but it does not require such con- sent, and where such consent is not given, the lord of the manor ought not to be served with the petition, for the order is without prejudice as to his rights {Se Flitchcroft, 1 Jur. N. S. 418 ; Re Howard, 3 W. K. 606 ; Paterson v. Fatersm, 2 Eq. 31 ; Re Surst, Seton, 607, 1665 ; Ayles v. Cox, 17 Beav. 584). As to the fine payable to the lord on substitution of a trustee under this Act, see Bnstow V. Booth, L. R. 5 C. P. 80. It is settled that the lord need not appear in Court to consent [Ayles v. Cox; Cooper V. Jones, 25 L, J. Ch. 240, where a verified certificate of his consent was treated as sufficient). For a form of an order appointing a person to convey under this section, see Re Sey, 9 Hare, 221 ; and as to the application of the Act to copyholds, Re Colling- wood, 6 W. E. 536. The Queen's Bench issued a mandamus to enforce an order made under the section {Re Lane, 12 W. E. 710). Where a sole trustee of copyholds died intestate, and without an heir, the Court vested the premises in the sole beneficiary {Re Godfrey, 23 Ch. D. 205 ; 31 W. B. 426). XXIX. And be it enacted, that when a decree shall have been made by any Court of Equity, directing the sale of any lands for the pay- ment of the debts of a deceased person (■«), every person seised or possessed of such lands, or entitled to a contingent right therein, as heir, or under the wiU of such deceased debtor, shall be deemed to be so seised or possessed or entitled, as the case may be, upon a trust within the meaning of this Act ; and the Court of Chancery is hereby TRUSTEE ACT, 1850. 77 empowered to make an order wholly discharging the contingent right, 13 & 14 Viat. under the wiU of such deceased debtor, of any unhorn person (/). "• ^°' °- ^^- (e) For form of order under this section, see Seton, 527. The provisions of this Trustee under section are also extended to decrees for sales for payment of costs, &c. (as to which decree for see Westmi v. Filer, 5 De a. & Sm. 608), by sect. 1 of the Extension Act, where the sale. words are " for any purpose whatever ;" see 15 & 16 Vict. u. 55, s. 1, infra. (/) See Y'o^ T. Beettestone, 1 K. & J. 213 ; Oough v. Bage, "W. N. (1871), 237. The application under this section must be made in chambers (Ord. LV. r. 2 (8), Application infra; Clark v. Ward, 14 W. R> 241). in chambers. XXX. And be it enacted, that where any decree {g) shall be made Court to by any Court of Equity for "the specific performance of a contract declare what ,j j!,i ,.,. , „ •■, parties are concerning any lands, or tor the partition or exchange of any lands, trustees of or generally when any decree shall be made for the conveyance or la^^s opm- assignment of any lands, either in cases arising out of the doctrine of guit and as'^ election or otherwise, it shall be lawful for the said Court to declare *° *^6 in- that any of the parties to the said suit wherein such decree is made are persons trustees of such lands or any part- thereof, within the meaning of this '"'bom. Act, or to declare concerning the interests of unborn persons {h) who might claim under any party to the said suit, or under the will or voluntary settlement of any person deceased, who was during his life- time a party to the contract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who upon coming into existence would be trustees within the meaning of this Act ; and thereupon it shall be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as the case may be, to make such order or orders as to the estates, rights and interests of such persons, born or unborn, as the said Court or the said Lord Chancellor might under the provisions of this Act make concerning the estates, rights, and interests of trustees born or unborn. (y) Orders under this section may be made in an action without any separate Order in the proceeding under the Act {Harrison v. Smith, 17 W. R. 646 ; Sail v. Sale, W. N. suit. (1884), 185). It has been held that no vesting order is necessary to bind equitable interests Decree bind- which are afEected by a decree {Se Williams, 5 De G. & S. 515), unless the con- ing equitable structive trustee is out of the jurisdiction ; see Leehmere v. Clamp, 31 Beav. 578. interests. The Court has a discretion to declare a constructive trust by order on petition Tin,p„ „ under the Act without decree in a suit [Ee Angela, 5 De G. & Sm. 278, where a oonHtniotive mortgagor of shares resident out of the jurisdiction was declared a constructive i_,,j. can be trustee for the person to whom the shares were sold by the mortgagee upon the jgoi-red petition of such purchaser without suit). If it is desired to have a vendor or ™thout qiortgagor declared a trustee for a purchaser within the section, such declarations decree cannot be obtained without action, unless the contract is executed by payment of purchase-money, &o. [Se Cuming, 5 Ch. 72). Thus the infant heir of an alleged vendor could not be declared a constructive trustee for the purchaser, where the contract concerned realty, untU the rights had been ascertained by a suit {Re Carpenter, Kay, 418) ; see Me Weeding, 4 Jur. N. S. 707 ; Cust V. MiddUton, 9 W. R. 242 ; Ee Draper, 9 W, R. 805 ; Ee Burt, 9 Hare, 289, where the Court refused, on application under the Act without suit, to declare the infant heir of a deceased partner, whose surviving partner had exer- cised a rigfht of purchasing the partnership property given to him by the articles of partnership, a constructive trustee for the surviving partner. In Ee CoUinson, 3 De Gr. M. & Gr. 409, the Court would not make an order on petition, declaring a son trustee for the father of property purchased in the son's name, though shortly after it made a decree to that effect in the suit ; but compare Be Be Visme, 2 De G. J. & S. 17. 78 TRUSTEE ACT, 1850. 13 & 14 Vict. 0. 60, s. 30. Vendor a conBtructive trustee. Infant defendant. Decree of foreclosure against imants. Partition suits. Unborn persons. But ■where a contract for purchase is executed, as, for example, Tctere the- purohase-money has been paid, the vendor or his heir will be declared a trustee under the Act without suit {He Cuming, 5 Ch. 72, following He CoUmgwood, 6 W. R. 536, there cited; Ee Crowe, 13 Eq. 26; Re Taylor, W. N. (1866), 5). So, where the equitable estate was clearly in the petitioner {Re Wilkinson, 12 W. R. 522 ; 10 Jur. N. S. 716). So, where a testator directed his executors to sell lauds and apply the money, and before his death contracted to sell the lands, the Court made an order i^psting the estate outstanding in his heir in the executors [Re Badeook, 2 W. R. 386) . So, where a vendor died before completion of a compulsory sale to a railway company, his heir was held a constructive trustee without bill filed [Re Russell, 12 Jur. N. S. 224 ; Re Lowry, 15 Eq. 78) ; and again, where lands purchased with the money of a railway company had been, conveyed to two persons as tenants in common without any express declaration of trust, it being clearly proved that the lands were only held in trust, the Court treated the infant heir of one of the tenants in common who died, as a trustee for the company within the Act {Re Brmcker, V.-C. W., Jan. 14, 1859). Where a decree was made for specific performance of an agreement to grant a lease, and the defendant refused to obey the order, he was declared a trustee of the premises and a person was appointed to execute the lease in his place {Sail v. Sale, W. N. (1884), 185 ; but see Graoe v. Baynton, "W. N. (1S77), 79 ; 25 "W. R. 506). As to what applications under the Acts must be made in Chambers, see Ord. LV. r. 2 (8), infra. Compare LysagHt v. Edwards, 2 Ch. D. 499 ; where the question how far a vendor, who dies before completion, is a trustee for the purchaser, is fully considered. One object of the section is said to have been to obviate the necessity of insert- ing, in decrees of foreclosure made against infants, a day for the infant to show cause against the decree ; see as to this, Newbury v. Marten, 15 Jur. 166 ; Foster v. Parker, 8 Ch. D. 147 ; Mellor v. Porter, 25 Ch. D. 158. In Bowra v. Wright, 4 De Gr. & Sm. 265, which was a partition suit, the Court declared the inlant a trustee of such of the shares as were allotted to other parties. See now s. 7 of the Partition Act, 1%S%, post ; Re Bloomar, 2 De Gr. & J. 88; Re Molyneux, i De Gr. E. & J. 365 ; 10 W. R. 512, where, on a decree for partition being made against a lunatic tenant in tail, declaring her a trustee of certain hereditaments, the com- mittee declining to take any steps to complete the partition, a vesting order was made under this section and the Lunacy Regulation Act, 16 & 17 Vict. c. 70; Shepherd v. Churchill, 25 Beav. 21, where the shares of the parties to a partition suit were very minute and complicated, and the Court declared each of the parties trustees as to the shares allotted to the other of them, and vested the whole in a single trustee, with directions to convey to ^ach of the parties their allotted shares ; Orger v. Sparke, 9 W. R. 180 ; Suhbard v. Subbard, 2 H. & M. 38. (A) As to the power of the Court to bind unborn persons, see Sargreaves v. Wright, 1 W. R. 408, where on a bill filed by purchasers from a father and son having a joint power of appointment under a settlement, against the infant heir in tail of the son, who had died before the completion of the purchase, the Court made an order discharging the estate from the contingent rights of the unborn claimants under the settlement, and appointing a person to convey in the place of the infant; cf. Wake v. Wake, 1 W. R. 283; 17 Jur. 745. The word "unborn" is used in a large sense, and includes the right heirs of living persons who cannot be ascertained, and therefore cannot be made parties to a suit {Basnett v. Moxon, 20 Eq. 182 ; Zees v. Coulton, 20 Eq. 20). Power to give direc- tions how the right to transfer stock is to be exercised. Stock ordered to be trans- ferred into Court. XXXI. And be it enacted, that it shall be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, to make declarations and give directions concerning the manner in which the right to any stock or chose in action vested under the provisions of this Act shall he exercised ; and thereupon the person or persons in whom such right shall he vested shall be compellable to obey such directions and declarations by the same process as that by which other orders under this Act are enforced (i). (i) The Court may order the person to whom a fund is paid, to pay it into Court under the Trustee Relief Act {Re Thornton, 9 W. R. 475 ; Re Draper, 9 W. R. 805) ; hut an order for payment direct into Court will not be made {Re Party, 29 L. T. (O. S.) 72) ; see, however. Re Pitt, 1 Jur. N. S. 1 156, and Re Dawson, 3 N. R. 397, cited in note {m),post, p. 81. TRUSTEE ACT, 1850. 79 XXXn. And be it enacted, that whenever it shall he expedient to 13 & 14 Vict. appoint a new trustee or new trustees {k) and it shall he found inex- °" ' "' ^' pedient, difficult, or impracticable so to do without the assistance of the Power to Court of Chancery {I), it shaU be lawful for the said Court of Chancery orX'appTn^ to make an order appointing a new trustee or new trustees either in ing new- substitution for or in addition to any existing trustee or trustees (m). "^ ®®^' {k) New trustees of a composition deed for the benefit of creditors were appointed New trustees in Me Price's Trust, 6 Eq. 460 ; Re Saehe, W. N. (1868), 223 ; Be Raphael, 9 Eq. of oomposi- 233 ; Se Thomson, 10 Ch. 55; and see Re Waddell, 2 Ch. D. 172; and new trustees tion deed, in place of those appointed under the Settled Estates Act (Scott v. Sersch, 24 W. R. 108). Appointments of new trustees of charities maj be obtained under the Act ; but Charities. such appointments are generally made on summons in chambers under the Charitable Trusts Acts, 1853, infra, p. 94; see Re Conyer's School, 10 Hare, App. t. ; or in simple oases, and where the income is under 50^., by application to the Charity Commissioners under the Act of 1860, and the property maybe vested under sect. 45 of this Act, p. 86, post. For the County Coiit jurisdiction where the property is imder 500?., see 28 & 29 Vict. c. 99, s. 1. Applications for the appointment of new trustees of a charity should be intituled under Sir S. EomUly's Act, 52 Geo. III. c. 101, as well as the Trustee Acts, and such'other Act as may be applicable (Lewin, 723 ; Re Rolle's Charities, 3 De C M. & Gr. 153 ; Re Bierton, 10 Ha. App. xxxviii. ; Re Gloucester CKarities, 10 Ha. App. iii.). The fiat of the Attorney-General and the saiiotion of the Charity Com- missioners should be obtained {Re Rolle's Charities ; Re Warwick Charities, 1 Phil. 559 ; Re Lancaster Charitiex, 9 W. E. 192) ; unless the application is in a pending matter or action {Att.-Gen. v. Cooper, 8 Jur. N. S. 50 ; 10 W. E. 31 ; Re Jarvis, 1 Dr. & Sm. 97). New trustees of an alien's will were appointed, the Crown not opposing [Re Mar- New tinez, W. N. (1870), 70) ; see Se Giraud, 32 Beav. 385 ; and see now 33 & 34 Vict. Teustees. 0. 14, s. 2, enabling aliens to hold property. mi, ri i -n [I) This section only provides machinery in oases where, on the face of the instru- The Court wm ment, it appears difficult, impracticable, or inexpedient to act without the Court's °°'' °^ peti- aid ; and does not give the Court jurisdiction on petition to consider the validity of ./°- si^tor the instrument or the conduct of trustees. ^^^ (1) The Court will not consider the question of validity {Re Matthews, 26 Beav. (1) Validity 463 ; 5 Jur. N. S. 184 ; Re Sarrison, 22 L. J. Ch. 69) ; and see Att.-Gen. v. Ward, of instru- 6 Hare, 477, where the deed declaring the trusts had not been enrolled (as it should ments ; have been), but the Court appointed new trustees, the old trustees adiuitting the trusts. (2) The Court will not, on petition, appoint a new trustee on any ground not (2) Misoon- appearing on the face of the instrument ; e. g., on the ground of the trustee's mis- duct of conduct {Re Bridgman, 1 Dr. & Sm. 164 ; Legg v. Mackrell, 1 Gifl. 165) ; or because trustees. of disagreements between the trustee and cestui que trust [Forster v. Bavies, 4 De G. F. & J. 133) ; or because the donee of the power is about to exercise it corruptly {Re Sodson, 9 Hare, 118 ; Re SadUy, 5 De G. & Sm. 67). Nor will the Court, on petition under the section, remove a trustee without or against his consent {Re Blanchard, 3 De G. E. & J. 131 ; 9 W. E. 647 ; Re Garty, 10 L. T. 331 ; Re Bennis, 12 W. K. 575). In such cases an action must be brought (Lewin, 882); butsee -Ke^3/r««, 18L. T. 631, where a trustee showed by his conduct that he declined to act ; Be Bignold, 7 Ch. 223, where he had gone to reside abroad. The Court has considered it expedient to exercise its statutory powers of appointing Cases : (A) new trustees in the following cases : — • where expe- "Where a vesting order could not otherwise have been obtained ; thus, at the instance dietii to ap- of the Bank of England, a fund which belonged to the Lords of the Eegenoy of point new Hanover, who ceased to exist as a corporation on the annexation by Prussia, was trustees, tranrferred by the intervention of trustees appointed by the Comt [King of Sanover -ci. j. . f v. Bank of England, 8 Eq. 350) ; but see note {p), p. 66, for vesting orders made v V k f"^ when there was no one who had an existing estate or interest, and Re Briver and Re J^ -^^ Rathione there cited. =■ Where there was great difficulty in obtaining administration to a deceased Difficulty in trustee {Re Matthews, 26 Beav. 463 ; Bavia v. Chanter, 6 W. E. 416). administering Where one of two trustees for sale was an infant (iJe Barter, 2 Jur. N. S. 349). to deceased And the Court wiU generally appoint a new trustee in the place of an infant, even trustee ; though appointed by the testator himself {Re Gartside, 1 W. E. 196) ; but the order . . should be without prejudice to any application by the infant to be restored to the ™**'"'y i 80 TRUSTEE ACT, 1850. 13 & U Viot. u. 60, n. 32. residence abroad ; age and infirmity; bankruptcy. Felony. (B) Where impracticable to appoint without Court's aid : (1) Where donee of power lunatic. 16 & 17 Viot. c. 70. (2) Where power in instrument insufficient. Where trustees disclaim. Conveyancing Act, 1881. Discretion of the Court. Number of trustees appointed. trusteeship on coming of age (Ee Shelmerdine, 33 L. J. Ch. 474 ; He Sruat, W. N. (1883), 220). For the practice where a trustee becomes lunatic, see note (o), p. 65 ; and see Ee East, 8 Ch. 735. It has been held, that the mere fact of a trustee residing out of the jurisdiction of the Court is not always a ground for holding it expedient to appoint another in his place (Be Mais, 16 Jur. 608 ; Ee Moravian Society, 26 Beav. 101 ; Ee Watts, 9 Hare, 106 ; Withington t. Withington, 16 Sim. 104, where a trustee who had gone to reside in China was held not to be incapable of acting) ; and see Be Blanchard, and other cases, supra. But see Mennard v. Welford, 1 Sm. & Gr. 426 ; Be Guibert, 16 Jur. 852; Be Stewart, 8 W. R. 297; Be Joyce, 2 Eq. 576 ; Be Bignold, 7 Ch. 223, which decide the contrary. So, where a trustee is incapable of acting by reason of age and infirmity, the Court considers it expedient to appoint [Be Lemann, 11 Ch. D. 633). The mere fact of a trustee becoming bankrupt was not a sufficient ground for the Court under the Trustee Act to appoint a new trustee in his stead {Be Benshaw, 4 Ch. 783) ; but by the Bankruptcy Act, 1883, s. 147 (re-enacting with only verbal alterations s. 117 of the Bankruptcy Act, 1869), "where a bankrupt is a trustee within the Trustee Act, 1850, s. 32 of that Act shall have effect so as to authorise the appointment of a new trustee in substitution for the bankrupt (whether voluntarily resigning or not) if it appears expedient to do so, and all provisions of that Act, and of any other Act. relative thereto shall have effect accordingly ; " and the Court will now remove a bankrupt trustee or a trustee who has liquidated by arrangement whenever he has trust money to receive, or deal with, which he can misappropriate [Be Barker, 1 Ch. D. 43 ; Be Adams, 12 Ch. D. 634 ; and see Goombes V. Brookes, 12 Eq. 61). Where of three trustees one was dead, another had become bankrupt and absconded, and the third had become lunatic, new trustees were appointed, and a right to call for a transfer of the trust estate vested in them (Be Duee, 30 W. R. 759) . As to appointing a new trustee in place of a person convicted of felony, see " Trustee Extension Act, 1852," post, a. 8. Cases where it is impracticable to appoint new trustees without the aid of the Court arise where there is a power given by an instrumeiriHtor appointment of new trustees, but either (1) the donee of the power is incapacitated by lunacy or other causes, or (2) the words of the power do not apply to the case which has arisen. (1) Where the incapacity of the donee arises from lunacy, the application may be made under the Lunacy Regulation Act, 16 & 17 Viot. c. 70, for the committee to appoint, and therefore the Court will not appoint in the absence of the committee {Be Parker, 32 Beav. 580 ; Be Bowmer, 3 De Gr. & J. 658) ; but a new trustee in place of a lunatic trustee, whether so foimd or not, may be appointed under the Chancery jurisdiction {Ee Sparrow, 5 Ch. 662) ; see Be Boyce, 3 N. R. 396 ; 12 W. R. 359 ; Ee Viekers, 3 Ch. D. 112 ; Ee Seaphy, 18 W. R. 1070. So, where the donee of a power to appoint new trustees was in India, new trustees were appointed under the Act {Be Sumphry, 1 Jur. N. S. 921). (2) Eor oases where the power given by the instrument did not meet the case which happened, see Lewin, 559 ef seq.; Be Woodgate, 5 W. R. 448 ; Be Sarrison, 11 L. J. Ch. 69 (where the power provided for the case of a trustee being incapable, unwilling, or unable, and the event was that a trustee went abroad) ; Cooper v. Maedonald, 14 W. R. 755 ; TraA>is v. Illingworth, 2 Dr. & Sm. 345 ; Be Dawson, 3 N. R. 397, where a trustee was unable to sign from ill health. See also Ee Glenny and Hartley, 26 Ch. D. 611, and Be Norris, 27 Ch. D. 333, where Travis v. Blingworth is discussed. Where the application is in consequence of a trustee refusing to act, the disclaimer may be made at the bar of the Court {Foster v. Dawber, 1 Dr. & Sm. 172; Ee Barnes, Seton, 542). Many cases where formerly it would have been impracticable to act without the aid of the Court are now provided for by the Conveyancing Act, 1881, s. 31, which contains extensive powers for the appointment of new trustees; see post, p. 117; and where the appointment can be thus effected it is improper to apply under the Trustee Acts {Be Gibbon, W. N. (1882), 12 ; 30 W. R. 287). The section was not intended, however, to vary the practice of the Court under the Trustee Act {Ee Aston, 23 Ch. D. 217). {m) The Court exercises a discretion in appointing new trustees ; and as to its general rules and principles in the selection, see He Tempest, 1 Ch. 485: The Court generally appoints such number of trustees as is necessary to make up the original number : it will increase the number if it thinks fit {Be Tunstall, 4 De Gr. & S. 421 ; 15 Jur. 645 ; Ee Boycott, 5 W. R. 15 ; Ee Braekenbury, 10 Eq. 45 ; and see Viscountess D' A dhemar y. Bertrmd, 35 Beav. 19), but will not diminish it except under special circumstances {Bulkeley v. Earl of Eglinton, 1 Jur. N. S. 994 ; Ee TRUSTEE ACT, 1850. gj Colyw, 43 L. T. 454 ; W. N. (1880), 131). Where, however, all that remained to 13 & U Viet De done was to distribute the trust fund, and there was a difficulty in finding o 60 s 32 ' persons willing to act as trustees, the Court appointed two trustees in the place of — — L tbiee(Re Marriott, "W. N. (1868), 215; and see Re Watson, 19 Ch. D. 384). The Court has appointed the continuing trustees to be sole trustees in the place of the oontinuing and retiring trustees {Re Stakes, IS Eq. 333 ; Re Sarford, 13 Ch. D. /, oo'a, ^''*«'»> W. N. (1877), 259 ; Re Crowe, 14 Ch. D. 610 ; Re Gibbin, "W. N. 9QW -R ' -'^^ ^^W**"*"". "W. N. (1880), 155; Re Northrop, W. N. (1880), 184; i.^'i '^^*' ' ^^^ ^^ practice has been disapproved of, and in a recent case was not followed {Re Aston, 23 Ch. D. 217 ; and see Re Lamb, 28 Ch. D. 77 ; Re Nash, 16 Ch. D. 503 ; Re Golyer, W. N. (1880), 131 ; 43 L. T. 454). Where, how- ever, the fund is immediately divisible, there is no objection to this course being taken (iJe Martyn, 26 Ch. D. 745, where the right to deal with the trust funds was vested m two out of three trustees, the third having become a lunatic). The Court ■mil not generally appoint a single ti-ustee {Re Dickinson, 1 Jur. N. S. 724 ; Re Ellison, 2 Jur. N. S. 62 ; Re Rwter, 2 Jur. N. S. 349 ; Re Roberts, 9 W. E. 758 ; Grant v. Grant, 34 L. J. Ch. 641 ; 6 N. R. 347), even where there was only one originally {Re Tunstall, 4 De G. & S. 421 ; 15 Jur. 645). It was done so, however, on an allegation that the trust was almost wound up {Re Reynault, 16 Jur. 233 ; Me Dickson, W. N. (1872), 223 ; S. 0. mm. Re Dixon, 21 W. E. 220). And where, by the will, only one trustee was appointed, the Court appointed an additional trustee at the cost of the reversioners who presented the petition {Re Srackenbury, 10 Eq. 45). The Court has appointed n%w trustees of one or more specific trusts created by Trustees an instrument, and not of the entire instrument {Re Catterill, W. N. (1869), 183 ; appointed of Re Dennis, 3 N. E. 636 ; 12 W. E. 575 ; Re Cunard, 27 W. E. 52 ; Re Grange, part of the W. N. (1881), 60). _ trust pro- The Court will not appoint one of the cestuis que trust to be a trustee, except perty. under very special circumstances ; as where no disinterested person can be found to who an accept the office {Ex parte Clutton, 17 Jur. 988 ; Re Conybeare, 1 W. E. 458 ; Re pointed " Roskell, Seton, 547 ; Re Clissold, 10 L. T. 642) ; or where the cestuis que trust are ^ entitled to receive the fund {Re Ourrie, 10 Ch. D. 93 ; Re Dickson, W. 'N. (1872), 223 ; S. C. nom. Re Dixon, 21 W. E. 220). The Court is also unwilling to appoint a near relation of the cestuis que trust {Wilding v. Bolder, 21 Beav. 222 ; Re Battatt, W. N". (1870), 14 ; 18 W. E. 416 ; Re Burgess, W. N. (1877), 87). . The Court refused to appoint a foreigner resident abroad {Re Ouibert, 16 Jur. 852 ; Re Long, 17 W. E. 218) ; but where the beneficiaries are residing abroad, or there are other special circumstances, the Court will appoint persons resident out of the jurisdiction {Re Smith, W. N. (1872), 134 ; 20 W. E. 695 ; Re Sill, W. N. (1874), 228 ; Re Drewe, W. N. (1876), 168 ; Re Cunard, 27 W. E. 52 ; Re Liddiard, 14 Ch. D. 310). A feme sole may be appointed {Re Campbell, 31 Beav. 176 ; Re Berkley, 9 Ch. 720). Where no one else conld be found, the husband of one of the beneficiaries was appointed, on his undertaldng to appoint a new trustee to act with himif ever he became sole trustee {Re Farrott, W. N. (1881), 158 ; Me Lightbody, W. N. (1885), 3 ; and the petitioner's soUoitor has been appointed where there was a difficulty in getting anybody else {Me Brentnall, W. N. (1872), 77) ; though as a rule such an appointment will not be made {Re Orde, 24 Ch. D. p. 272). The Court requires a written consent by the new trustees to act, unless counsel Consent of consent on their behalf {Me Parke, 21 L. T. (0. S.) 218) ; but they need not appear new trustees, to consent {Re Draper, 2 W. E. 440). An affidavit of their fitness must be pro- Affidavit dnced {Re Battersby, 16 Jur. 900; Me Tunstall, 4 De G. & S. 421 ; 15 Jur. 645, of fitness. 981). As a general rule, an affidavit of fitness by the solicitor is not enough {GruMdy v. Biickeridge, 22 L. J. Ch. 1007 ; 17 Jur. 731 ; Re Sartley, W. N. (1879), 197). Where parties interested objected to the trustees proposed to be appointed, and New trustee desired the property to be paid in under the Trustee Belief Act, the Court made to pay into an order vesting the property in the proposed trustees, on an undertaking by them Court, to transfer it into Court within a month {Me Dawson, 3 N. E. 397, and see note (i), p. 78, supra). Since the passing of the Trustee Extension Act, sect. 9, post, p. 93, the Court Where there can act under this section, when there are no existing trustees, even though the are no exist - trustees all died in the testator's lifetime {Re Smirthwaite, 11 Eq. 251), but in such jng trustees. a case the heir must be served {Gunson v. Simpson, 5 Eq. 332). Trustees were appointed where the testator had appointed executors, but no trustees {Re Davis, 12 Eq. 214 ; Dodkin v. Brunt, 6 Eq. 580 ; and see Re Gillatt, 25 W. E. 23 ; Me Moore, McAlpiney. Moore, 21 Ch. D. 778). See also PatersonY. Paterson, 2 Eq. 31 ; 35 Beav. 506, where the trustees had disclaimed. XXXm. And be it enacted, that the person or persons who, upon The new trustees to M. G 32 TRUSTEE ACT, 1850. 13 & U Viot. u. 60, a. 33. baye the powers of brustees ap- pointed by decree in suit. Power of Court to vest lands in new trustees. Vesting lands under decree. ■Whether a declining trustee must execute deed of disclaimer. Porm of order. Vesting in new and old trustees as joint tenants the making of such order as last aforesaid, shall be trustee or trustees, shall have all the same rights and powers as he or they would have had if appointed hy a decree in a suit duly instituted («). («) As to the powers of trustees appointed by the Court, see Conveyancing Act, 1881, s. 33, infra. XXXrV. And be it enacted, that it shall be lawful for the said Court of Chancery (o), upon making any order for appointing a new trustee or new trustees {p), either by the same or by any subsequent order to direct that any lands {q) subject to the trust shall vest in the person or persons who upon the appointment shall be the trustee or trustees, for such estate as the Court shall direct (r) ; and such order shall have the same effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estates. (o) Kow the Chancery Division of the High Court (Judicature Act, 1873, s. 34). [p] A Testing order was made under this section, where trustees previously appointed by the parties were reappointed by the Court (fle Clay, W. N. (1873), 129). Where a mortgagee's executors had, by decree, been ordered to transfer the mortgage debt to the trustees of a settlement, it was held that this was an appoint- ment of new tnistees by the Court, and that a vesting order of the mortgaged property might be made under this section [Se Hughes, 2 H. & M. 695). (?) Under this section "lands" include leaseholds; see note (5) to s. 2, ante, p. 64. Where there was no legal personal representative of the surviving trustee, the Court made a vesting order as to leaseholds [Se Eathbone, 2 Ch. D. 483 ; Re Dalgleish, 4 Ch. D. 143). (r) Before the Court will under this section make an order devesting the estate out of a trustee declining to act, it seems to have been thought by V.-C. Wood that the trustee so declining must execute a deed of disclaimer ; as an executor, even though he may not have proved the will, must finally renounce before an order will be made tavest an estate in his co-executor [Re Badcock, 2 W. R. 386) ; a parol disclaimer, on the hearing of the petition, not being sufficient {fie Mlison, 2 Jur. N. S. 62). But this dictum has been doubted by other judges {Foster v. Dau-ber, 1 Dr. & Sm. 172). For a form of vesting order under this section, see Seton, 639 ; Sancox v. Spittle, 3 Sm. & G-. 478; Re Mllis,2i Beav. 426, where the Court directed the circum- stances bringing the case within the Act to be inserted in the order. See, too. Re Mainwarinff, 26 Beav. 172, from which it seems that where the Bank is required to transfer stock, this should always be done. The Court may make an order vesting the estate which is outstanding in the old and continuing trustees in the new and continuing trustees as joint tenants (see note (17) to sect. 10), and for the oases on the farm, &o., of vesting orders under the Act, see note {p), p. 65, ante. XXXV. And be it enacted, that it shall be lawful for the said Court of Chancery upon making any order for appointing a new trustee or new trustees, either by the same or any subsequent order to vest the right to call for a transfer (s) of any stock subject to the trust, or to receive the dividends or income thereof, or to sue for or recover any chose in action, subject to the trust, or any interest in respect thereof, in the person or persons who upon the appointment shall be the trustee or trustees. («) This section only empowers the Court to vest the right ' ' to call for a transfer " of stock {Re Smyth, 4 De G. & S. 499 ; 15 Jur. 644) ; under o. 6 of the Extension Act the right to the stock itself is vested. TRUSTEE ACT, 1850. 83 XXXVI. And be it enacted, that any such appointment by the 13 & 14 Vict. Court of new trustees, and any such conveyance, ■ assignment, or °' ^°' °" ^^' transfer as aforesaid, shall operate no further or otherwise as a dis- Old trustees charge to any former or continuing trustee than an appointment of ohLged^from new trustees under any power for that purpose contained in any liability, instrument would have done. XXXVn. And be it enacted, that an order under any of the here- Who may inbefore contained provisions, for the appointment of a new trustee or ^PP^^' trustees, or concerning any lands, stock, or chose in action subject to a trust, may be made upon the application of any person beneficially interested {t) in such lands, stock, or chose in action, whether under disability or not, or upon the application of any person duly appointed as a trustee thereof ; and that an order under any of the provisions hereinbefore contained concerning any lands, stock, or chose in action subject to a mortgage may be made on the application of any person beneficially interested ia the equity of redemption, whether under disability or not, or of any person interested in the monies secured by Such mortgage (m). (<) A person having a contingent interest in real estate {He Sheppard, i De Q-. Who are F. & J. 423 ; 9 Jnr. N. S. 59, overruling S. C. 8 Jur. N. S. 711 ; 10 "W. E. 704), a persons creditor who has obtained a decree for administration and sale of real estate (He beneficially Wragg, 1 De G-. J. & S. 356), and a purchaser who has paid his purchase-money interested into Court (^yfes V. Cox, 17Beav. 584), are " persons beneficially interested " within the meaning of the section ; but the dommittee of a, lunatic cestui que trust is not such a person [Se Bourke, 2 De Gr. J. & S. 426). (m) As a general rule, all persons beneficially interested in the property, or parties "Who must to the suit, where the application is made in a suit, must join in the application concur. or be served (Re Richards, 5 De G. & S. 636 ; Re Fellows, 2 Jur. N. S. 62 ; Re Sloper, 18 Beav. 596). Where, however, the cestuis que trust are very numerous, or some other snfScient reason why they should not all be served is shown by affidavit, ser- vice on some of them may be dispensed with {ReSmyth, 2 De Gr. & S. 781 ; Re Sharpley, 1 W. R. 271 ; Re Blanchard, 3 De Q. F. & J. 131 ; Re Lightbody, W. N. (1885), 3. If the application is for the appointment of new trustees and there are old trustees who are desirous of retiring they must be served or join as co-petitioners [Re Sloper, 18 Beav. 596), unless they are of unsound mind [Re East, 8 Ch. 735 ; Re Green, 10 Ch. 272), or permanently residing abroad {Re Bignold, 7 Ch. 223) ; or have absconded j^Sydev. Benbow, W. N. (1884), 117). Where all the trustees of a will have died in the testator's lifetime, a petition for the appointment of new trustees of the real estate and a vesting order should be served on the heir {Re Smirthwaite, 11 Eq. 251). The husband of a married woman petitioner need not now be a co-petibioner or respondent {Re Outwin, 31 W. E. 374; and see Married Women's Property Act, 1882, infra). [Sects. 38 and 39 were repealed by the Statute Law Eevision Act, 1875.] XL. And be it enacted, that any person or persons entitled in Power to pre- manner aforesaid to apply for an order from the said Court of Chan- sent petition cery(«;), or from the Lord Chancellor, intrusted as aforesaid, may, instance. should he so think fit, present a petition (w) in the first instance to the Court of Chancery, or the Lord Chancellor, intrusted as aforesaid, for such order as he may deem himself entitled to, and may give evi- dence {x) by affidavit or otherwise in support of such petition before the said Court, or the Lord Chancellor, intrusted as aforesaid, and may serve {y) such person or persons with notice of such petition as he may deem entitled to service thereof. {v) Now the Chancery Division (Judicature Act, 1873, s. 34 (2)). 02 H TRUSTEE ACT, 1850. 13 & 14 Viet. 0. 60, B. 40. Bvidence. Service on •■eatuis que 'rust and trustees. Service of letition by lenant for ife; )y lunatic, )y bankrupt, in inoum- )rancera. (tel Where there has been a judgment or order for the sale, conveyance or transfer of stock, or of any hereditaments, the application is made in chambers (Ord. LV. r. 2 (8), infra). If the appUoation is unnecessarily -made by petition the extra costs will be ordered to be paid by the petitioner {Olark v. IFard, 14 W. R. 241). {x) In £e Fickance, 10 Hare, App. xxxv., the Court allowed affidavits filed in a cause to be used as evidence on a petition in the matter of the Acts ; and as to evidence in support of a petition under this Act, see He Hoskins, i De G-. & J. 436, where on a petition for appointing new trustees of a will containing gifts to classes, an affidavit of the solicitor was received as sufficient evidence of the persons con- stituting the classes without the production of baptismal and other certificates. [y) The general rule is, that all the cestuis que trust should be served, including infants (iJe Fellows, 2 Jur. N. S. 62). In cases of retiring trustees, the old trustees also (Re Sloper, 18 Beav. 596) should be served ; and see Mx parte Hardman, 3 M. D. & De G. 559, where the cestuis que trust were abroad ; Be Sickards, 5 De Gr. & Sm. 636 ; EeLightbody, W. N. (1885), 3. But service on all the cestuis que trust, where they are very numerous, may be dispensed with [Re Sharpley, 1 W. R. 271 ; Re Smyth, 2 De Gr. & Sm. 781), and trustees with a power of sale sufficiently represent their cestuis que trust {Re Jilanchard, 3 De a. E. & J. 131). . Service upon infant respondents was dispensed with in Se Tweedy, 9 W. R. 398 ; Fe milan, ibid. 689 ; Re Wise, 5 De G. & Sm. 415 ; Re Little, 7 Eq. 323. A trustee refusing to transfer need not be served with a petition under the 23rd and 24th sections; see note («), p. 74, ante. The Court will not make a vesting order on petition of a lessee or tenant for Ufa without service on the remaindermen (Re Farrant, 20 L. J. Ch. 632 ; Re Maynard, 16 Jur. 1084) ; but see Re Fryse, 10 Eq. 631. Where the lease contained no clause prohibiting assignment, an order vesting leaseholds was made in the absence of the lessor (Re Matthews, 2 W. R. 85). A petition as to lands vested in a lunatic trustee must be served upon the committee (Re Saumarez, 8 De Gr. M. & G. 390 ; Re Wylde, 6 De G. M. & G. 25) ; and see Re Wood, 3 De G. E. & J. 125 ; Re Farker, 32 Beav. 580 ; Re East, 8 Ch. 736 ; as to service of a petition to appoint new trustees in the place of a bankrupt upon the trustee, see Ex parte Garden, 12 Jur. 391, and on the bankrupt himself, see Ex parte Whitley, 1 Dea. 478 ; Ex parte Sarris, 11 L. J. Bkcy. 16. An order to vest lands subject to an annuity may be made in the absence of the annuitant (Re Winteringham, 3 W. R. 578) ; see Ex parte Marshall, 3 De G. & Sm. 679. See further as to services, the note on costs, note (k) to sect. 51, infra, p. 87. • ^at may be lone upon letition. XLI. And be it enacted, that upon the heEiiing of any such, motion or petition it shall be lawful for the said Court or for the said Lord Chancellor, should it be deemed necessary to direct a reference to one of the Masters in Ordinary of the Court of Chancery to inquire into any facts which require such an investigation, or it shall be lawful for the said Court or for the said Lord Chancellor to direct such motion or petition to stand over to enable the petitioner or petitioners to adduce evidence or further evidence before the said Court or before the said Lord Chancellor, or to enable notice or any further notice of such motion or petition to be served upon any person or persons (z). (z) The words in italics were repealed by Statute Law Revision Act, 1875. 'ourt may ismiss peti- ion with or rithout costs. XLII. And be it enacted, that upon the hearing of any such motion or petition, whether any certificate or report from a Master shall have been obtained or not, it shaU be lawful for the Court, or the Lord Chancellor, intrusted as aforesaid, to dismiss such motion or petition, with or without costs, or to make an order thereupon in conformity with the provisions of this Act (a). (a) The words in italics were repealed by the Statute Law Revision Act, 1875. TRUSTEE ACT, 1850. 85 XLIII. And be it enacted, that whensoever, in any cause or matter, 13 & 14 Vict, either by the evidence adduced therein, or by the admission of the "- ^°' ^- ^^" parties, or by a report of one of the Masters of the Court of Chancery, Power to the facts necessary for an order under this Act shall appear to such ™^g^ f^^ Court to be sufficiently proved, it shall be lawful for the said Court, cause, either upon the hearing of the said cause or of any petition or motion in the said cause or matter, to make such order under this Act (i). (4) See as to this section, Frodsham v. Frodsham, 15 Ch. D. 317. G-enerally, an Orders under order may be made in a cause -without a petition {Wood v. Beetlestone, 1 Ei. & J. Act made in 213 ; Viscountess IfAdhemar v. JBertrand, 35 Beav. 19) ; but where the trustee is a cause, lunatic, a petition in lunacy is requisite ; see notes (m) and (o) to sect. 3, p. 65 ; Jeffryes v. Bryadale, 9 W. R. 428 ; Se Dawson, 6 N. R. 346. Vesting orders in a suit were made on motion in Maekmnie v. Mackenzie, Seton, 525, where a previous order appointing new trustees had been made in a cause ; and see Se Solbrook's Will, 8 W. R. 3, where such order had been made on petition in a matter, and a subsequent vesting order was made on motion ; see, too, Skynner T. Felichet, 9 W. R. 191 ; and Fisher v. Eughes, 25 W. R. 528, where an order was made on motion for judgment in default of pleading. The petition, though presented in a suit, should be intituled in the Act [Gough Petition how V. Bage, W. N. (1871), 237 ; 25 L. T. 738 ; Be Law, 4 Beav. 509 ; EuntUy v. Glut- intituled. terbuck, W. N. (1872), 81) ; but see Seton, p. 544. As to amending an order, see Re Clinton, Jackson v. Slaney, W. N. (1882), 176 ; Amendment and Be Savage, 15 Ch. D. 557, where the names of some of the co-petitioners had of order, been used without their authority. XLIV. And be it enacted, that whenever any order shall be made Orders made under this Act, either by the Lord Chancellor, intrusted as aforesaid, oJchancery* or by the Court of Chancery, for the purpose of conveying or assign- founded on ing any lands, or for the purpose of releasing or disposing of any ™^j^^g*to'be contingent right, and such order shall be founded on an allegation of conclusive the personal incapacity of a trustee or mortgagee, or on an allegation ?Z ''"tt that a trustee or the heir or devisee of a mortgagee is out of the juris- contained in diction of the Court of Chancerv, or cannot be found, or that it is ^"^°^ *^®' . 1.1. gations. uncertain which of several trustees, or which of several devisees of a mortgagee, was the survivor, or whether the last trustee, or the heir or last surviving devisee of a mortgagee, be living or dead, or on an allegation that any trustee or mortgagee has died intestate without an heir, or has died and it is not known who is his heir or devisee, then in any of such cases the fact that the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, has made an order upon such an Order to be allegation, shall be conclusive evidence (c) of the matter so alleged in ""^g^gg^gf any court of law or equity upon any question as to the legal validity facts on of the order : Provided always, that nothing herein contained shall J^^°^ ^ "was prevent the Court of Chancery directing a re-conveyance or re-assign- ment of any lands conveyed or assigned by any order under this Act, or a re-disposition of any contingent right conveyed or disposed of by such order ; and it shall be lawful for the said Court to direct any of the parties to any suit concerning such lands or contingent right to pay any costs occasioned by the order under this Act, when the same shall appear to have been improperly obtained. (c) See ColUnson v. Collinson, 3 De G. M. & G. 409, 414. 86 TRUSTEE ACT, 1850. 13 & HViot. 0. 60, s. 45. Trustees of charities. Vesting order on appoint- ment of new charity trustees. No escheat of property held upon trust or mortgage. Eights of Crown to escheat. Trustee Act not to prevent escheat or forfeiture of beneficial interest. XLV. And be it enacted, that it shaU be lawful for tbe Lord Chan- cellor, intrusted as aforesaid, or tke Court of Chancery, to exercise the powers herein conferred, for the purpose of vesting any lands, stock, or chose in action in the trustee or trustees of any charity {d) or society, over which charity or society the said Court of Chancery* would have jurisdiction npon suit duly instituted, whether such trustee or trustees shall have been duly appointed by any power contained in any deed or instrument, or by the decree of the said Court of Chan- cery, or by order made upon a petition to the said Court under any statute authorising the said Court to make an order to that effect in a summary way upon petition. {d) New trustees of a charity having been appointed under the 16 & 17 Vict, c. 137, s. 28, a vesting order under this section was made in chambers (Se Daven- port's Charity, i De G. M. & 6r. 839) ; and see Re Lincoln Chapel, 1 Jur. N. S. 1011 ; 3 W. R. 608. XLVI. And be it enacted, that no lands, stock, or chose in action vested in any person upon any trust or by way of mortgage, or any profits thereof, shall escheat or be forfeited to her Majesty, her heirs or successors, or to any corporation, lord or lady of a manor, or other person, by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his or her co-trustee, or descend or vest in his or her repre- sentative, as if no such attainder or conviction had taken place (e). («) This section is taken from 4 & 5 Will. 4, c. 23, s. 3. See now 33 & 34 Vict. 0. 23 ; and as to the present law of escheat, see the Intestates Estates Act, 1884. Where an illegitimate mortgagee in fee devised her real and personal estate to ar trustee upon certain trusts and died without issue, the Court, tiie Crown offering no opposition, vested the legal estate in a purchaser, the mortgage-money having been paid off (Be Minchin, 2 W. R. 179). From a case of Bartletty. Bartlett, how- ever (cited in Inoe's Trustee Acts, 2nd ed. p. 91), it would seem that where an illegitimate testator devises estates to which he is beneficially entitled to a trustee who predeceases him and dies without issue, a vesting order cannot be made so as to defeat the rights of the Crown. By sect. 8 of the Extension Act, p. 92, post, the Court has power to appoint new trustees in lieu of persons convicted of felony. XL VII. And be it enacted, that nothing contained in this Act shall prevent the escheat or forfeiture of any lands or personal estate vested in any such trustee or mortgagee, so far as relates to any beneficial interest therein of any such trustee or mortgagee, but such lands or personal estate, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if this Act had not passed (_/). (/) This section is taken from 4 & 5 Will. 4, e. 23, s. 5. See now 33 & 34 Vict, u. 23 ; and as to escheat, the Intestates Estates Act, 1884. Money of infants and XLYIII. And be it enacted, that where any infant or person of . unsound mind shall be entitled to any money payable in discharge of unsound mind any lands, stock, or chose in action conveyed, assigned, or transferred *° ^® P^'^ under this Act, it shall be lawful for the person by whom such money is payable to pay the same into the Bank of England, in the name and with the privity of the Accountant-General {g), in trust in any TEUSTEE ACT, 1850. 87 cause then depending concerning such, money, or, i£ there shall he no 13 & 14 Viot. such cause, to the credit of such infant or person of unsound mind, °' ' ^' subject to the order or disposition of the said Court ; and it shall be lawful for the said Court, upon petition in a summary way, to order any money so paid to be invested in the public funds, and to order pay- ment or distribution thereof, or payment of the dividends thereof, as to the said Court shall seem reasonable ; and every cashier of the Bank of England who shall receive any such money is hereby required to give to the person paying the same a receipt for such money, and such receipt shall be an effectual discharge for the money therein respectively expressed to have been received (A). (ff) The payment is now made to the account of the Paymaster-G-eneral. (A) See Se Sparks, 6 Ch. D. 361. XLIX. And be it enacted, that where in any suit commenced or to Court may be conunenced in the Court of Chancery, it shall be made to appear to in the absence the Coujt by affidavit that diligent search and inquiry has been made o^ a trustee, after any person made a defendant, who is only a trustee, to serve him with the process of the Court, and that he cannot be found, it shall be lawful for the said Court to hear and determine such cause, and to make such absolute decree therein against every person who shall appear to them to be only a trustee, and not otherwise concerned in interest in the matter in question, in such and the same manner as if such trustee had been duly served with the process of the Court, and had appeared and filed his answer thereto, and had also appeared by his counsel and solicitor at the hearing of such cause (i) : Provided always, that no such decree shall bind, affect, or in any wise prejudice any person against whom the same shall be made, without service of process upon him as aforesaid, his heirs, executors, or administrators, for or in respect of any estate, right, or interest which such person shall have at the time of making such decree for his own use or benefit, or otherwise than as a trustee as aforesaid. (t) The Court under this section ordered a cause to be certified as fit for hearing though a defendant trustee could not be found, and had not appeared ( Weathead v. Sale, 6 W. E. 52; Surrelly. Maxwell, 26 L. T. 655]. [Sect. 50 was repealed by Statute Law Eeyision Act, 1875.] LI. And be it enacted, that the Lord Chancellor, intrusted as afore- Costs may be said, and the Court of Chancery, may order the costs and expenses of ^he estate. and relating to the petitions, orders, directions, conveyances, assign- ments, and transfers to be made in pursuance of this Act, or any of them, to be paid and raised out of or from the lands or personal estate, or the rents or produce thereof, in respect of which the same respectively shall be made, or in such manner as the said Lord Chan- cellor or Court shall think proper (k). Ik) When a bill was filed for the appointment of a new trustee in a case where a 9°f^ of cause petition might have been presented, the plaintiff was held to be liable for the addi- instituted tional costs {Thomas v. Walker, 18 Beav. 521). unnecessarily. • The costs of applications in the matter of a trust, whether occasioned by the Costs of applications. TRUSTEE ACT, 1850. 13 & 14 Vict, c. 60, s. 51. Charged on trust property if for benefit of trust property. Costs of appearance of bankrupt trustee. Costs of vesting order — (1) Aste- tween ven- dor's estate and pur- chaser ; (2) as between mortgagee's estate and mortgagor redeeming. Wbere mortgagee lunatic. Costs of respondent trustees in case of miacondmst. Commission concerning person of unsound mind. lunacy {Se Fulham, IS Jur. 69), infancy {Ex parte Cant, lOVes. 554), or bankruptcy [Ex parte Painter, 2 Deac. & Ch. 584), of a trustee, must be borne by the cestui qtie trust or the trust estate, according as the application is for the benefit of the applicant solely, or generally for the benefit of the estate ; see Carter v. Sebright, 26 Beav. 374 ; Re Brackenhury, 10 Eq. 45 ; Re Fellows, 2 Jur. N. S. 62. ' In Ex pa/rte Dalies, 16 Jur. 882, V.-C. Parker, upon appointing a new trustee and making a vesting order under the Act, by consent ordered the new trustee to pay the costs of the proceedings, and directed that such costs, with interest thereon at il. per cent, should form a charge on the inheritance ; and see Re Crahtree, 14 W. E. 497, where costs were directed to be raised by mortgage to be settled by the Court. Where new trustees of two funds were appointed, the costs were borne rateably (Re Grant, 2 J. & H. 764). As to costs where two petitions are presented, see Re Rring, 42 L. J. Ch. 473 ; 28 L. T. 467. When a trustee is served and appears on an application for appointment of a new .trustee, he will, except incase of misconduct [see Ex parte Harris, 11 L. J. Bkcy. 16), be allowed his costs ; see Turner \. Mullineux, 9 W. E. 252 ; 3 Ii. T. 687, where costs as between solicitor and client were given to a bankrupt trustee. Eor cases where it was held that infant respondents need not be ferved, see p. 84. The costs of an application for a vesting order as between vendor and purchaser, occasioned by the vendor leaving an infant heir or devisee, must be borne by the vendor's estate [Heard v. Cuthbert, 1 Ir. Ch. Rep. 369 ; Bradley v. Munton, 16 Beav. 294 ; Ayles v. Cox, 17 Beav. 584 (where the sale was under a decree) ; Re South Wales Ry. Co., 14 Beav. 418) ; see, however. Re Nash, 4 W. R. Ill ; Re Liverpool Improvement Act, 5 Eq. 282. "The costs of an application for a vesting order as between a mortgagor paying off the mortgage debt and the mortgagee, occasioned by the mortgagee leaving an heir who cannot be found, or is lunatic, or a bare trustee who is lunatic [Re Lewes, 1 M. cS: G. 435), are payable by the mortgagor [Re Marrow, Cr. & Ph. 142 ; Ex parte Ommaney, 10 Sim. 298 ; King v. Smith, 6 Hare, 473 ; Re Jones, 2 De G. F. & J. 554 ; Re Stuart, 4 De G-. & J. 317) ; but if the application was occasioned by the mortgagee himself becoming lunatic, it should be made by the committee of the lunatic's estate, and the committee will pay the costs out of the lunatic's estate [Re Rowley, 1 N. R. 251 ; 1 De G. J. & S. 417 ; Re Viall, 8 De G. M. & G. 439 ; Re Wheeler, 1 De G. M. & G. 435 ; Ex parte Richards, 1 J. & W. 264 ; Re Townscnd, 2 Ph. 348 ; Re Thomas, 22 L. J. Ch. 858 ; Re Jones, 2 Ch. D. 70). The mortgagor, if he appears, vrill not get his costs [Re Fhillips, 4 Ch. 629). If, however, the lunatic mortgagee appears on the face of the mortgage-deed to be only a trustee, the trust estate pays the costs [Re Jones ; and see Re Lewes, 1 M. & G. 23 ; Re Townsend, ibid. 686). And if the mortgagor makes the application in a case where the committee of the lunatic has not declined to act, he must bear the costs [Re Wheeler, 1 De G. M. & G. 435). In Re Sparks, 6 Ch. D. 361 ; 25 W. R. 869, it was held that the Court has no jurisdiction to order the costs of a vesting order occasioned by the lunacy of the mortgagee to be paid out of the mortgage debt, and that each party must bear his own costs ; this case overrules Re Riddle, 23 L. J. Ch. 23. It was held in Re Primrose, 23 Beav. 590, that the Court has no jurisdiction under the Act to order a respondent to pay the costs of an appUeation occasioned by his own misconduct ; and it seems very doubtful whether the Court has any such jurisdiction even now, notwithstanding the Jud. Acts and Ord. LXV. r. 1, R. S. C. 1883 [Re Sarah Knight, 26 Ch. D. 82) ; but see the remarks on Re Primrose in Re Woodburn, 1 De G. & J. 346 ; and see also Re Adams, 12 Ch. D. 634 ; Re Wiseman, 18 W. R. 674 ; Re Wills, 12 W. R. 97 ; 9 Jur. N. S. 1225. The costs of appointing new trustees were ordered in a suit to be paid by trustees who improperly refused to retire ; see Legg v. Mackrell, 2 De G. F. & J. 551 ; Attorney-General v. Murdoch, 2 K. & J. 571 ; Grierson v. Aatle, 3 L. T. 288 ; King v. King, 1 De G. & J. 663 ; Palairet v. Carew, 32 Beav. 564 ; Re Wiseman, 18 W. E. 574. But the Court can dismiss a, petition with costs (sect. 42), and wiU do so where the petition is needlessly presented [Re Gibbon, 30 W. R. 287 ; W. N. (1882), 12 ; Re Oakden, 26 Sol. J. 563). In Richardson v. Grubb, 16 W. E. 176 (Ireland), it was decided that failing health, where the trusts were of a formal character only, was not a sufficient reason for a petition asking that they might be discharged, and the petitioner was disallowed his costs. Where a trustee on a petition to appoint new trustees dis- claims at the bar he will only be allowed costs as between party and party [Bulkeley V. Earl of Eglinton, 1 Jur. N. S. 994 ; and see Norway v. Norway, 2 M. & K. 278, overruling Sherratt v. Bentley, 1 R. & M. 655 ; and Legg v. Mackrell, ante). LII. And be it enacted, tliat upon any petition being presented undei this Act to the Lord Chancellor, intrusted as aforesaid, con- cerning a person of unsound mind, it shall be lawful for the said Lord TRUSTEE ACT, 1850. 89 Chancellor, should he so think fit, to direct that a commission in the 13 & 14 Vict, nature of a writ de lunatico inquirendo shall issue concerning such "" ^°' °" ^^" person, and to postpone making any order upon such petition until a return shall have been made to such commission. Lni. And be it enacted, that upon any petition under this Act Suit may be being presented to the Lord Chancellor, intrusted as aforesaid, or to "^i^ected. the Court of Chancery, it shall be lawful for the said Lord Chancellor or the said Court of Chancery to postpone making any order upon such petition until the right of the petitioner or petitioners shall have been declared in a suit duly instituted for that purpose (1). (i) This section was acted on in ColUnson v. Collinson, 3 De G. M. & Gr. 409 ; JJc Cases where Burt, 9 Hare, 289 ; Se Carpenter, Kay, 418 ; Carpenter v. lord GhurohiU, 2 "W. E. suit directed. 364 ; Me Weeding, 4 Jur. N. S. 707. LIV. And be it enacted, that the powers and authorities given by Powers of this Act to the Court of Chancery in England shall extend to aU lands '^""^ °* .and personal estate within the dominions, plantations, and colonies extenTto belonging to her Majesty (except Scotland) (m). property in the colonies. [m] Under this section a Testing' order was made as to lands in Canada (Re Lands in SchofleU, 24 L. T. (O. S.) 322 ; Re Groom, 11 L. T. 336). As to lands in Ireland, Canada see Re Davies, 3 Mac. & Gr. 278, where the Lord Chancellor held that an order could j , ,' not be made to vest such estates in a trustee appointed in the place of a lunatic ■"^^^*"'- trustee {see post, ss. 65, 56, 57). But when the cestui que trust was in England, and the surviving trustee in Ireland, V.-O. Kindersley made an order vesting lands situate in Ireland in a new trustee appointed by the Court [Re Hewitt, 6 W. R. 537) ; and in Re Lamotte, i Ch. D. 326, an order was made vesting land in Ireland. See also Re Taitt, W. N. (1870), 257. LY. And be it enacted, that the powers and authorities given by Powers riven this Act to the Court of Chancery in England shall and may be *° ^°"^' °* • 1 • Ti ■■ 11? , ■,-.-. Chancery exercised m like manner and are hereby given and extended to the may be Court of Chancery in Ireland with respect to all lands and personal exercised by ,,.--11 that Court m estgite in Ireland. Ireland. LVI. And be it enacted, that the powers and authorities given by Powers this Act to the Lord Chancellor of Great Britain, intrusted as afore- °1 Lord Uhancellor said, shall extend to all lands and personal estate within any of the in Lunacy dominions, plantations, and colonies belong^g to her Majesty (except *° extend to Scotland and Ireland) (ra). the colonies. («) Where one of two trustees of Irish railway stock became of unsound mind, an order was made appointing a person new trustee of the stock in his place, and directing such person to concur with the other trustee in transferring the stock {Re Modgson, H Ch. D. 888). LVII. And be it enacted, that the powers and authorities given by Powers this Act to the Lord Chancellor of Great Britain, intrusted as afore- ?t"'^°'^'^ii said, shall and may be exercised in like manner by and are hereby in Lunacy eiven to the Lord Chancellor of Ireland, intrusted as aforesaid, with ™^y \^ , respect to all lands and personal estate in Ireland. by Lord LYIII. And be it enacted, that in citing this Act in other Acts of ^lanoellor Parliament, and in legal instruments and in legal proceedings, it shall „, . . " be sufficient to use the expression " The Trustee Act, 1850." Sections 59 and 60 are repealed by the Statute Law Revision Act, 1875. 90 TRUSTEE EXTENSION ACT, 1852. 15 & 16 viot. TEUSTBE EXTENSION ACT, 1852. c. 55. 15 & 16 VICT. Cap. 66. An Act to extend the provisions of the " Trmtee Act, 1850." [30tli June, 1852.] Wheeeas it is expedient to extend tlie provisions of the Trustee Act, 1850 : Be it therefore enacted, &c. : Court of I. That when any decree or order (o) shall have been made by any SiS^a^'oXr Ciourt of Equity directing the sale of any lands for any purpose what- forvesting the ever (J), every person seised or possessed of such land, or entitled to of oonveyante ^ contingent right therein, being a party to the suit or proceeding in by a party to which such decree or order shall have been made, and bound thereby a'deoree or^"^ Or being otherwise bound by such decree or order, shall be deemed to order for sale, be so seised or possessed or entitled (as the case may be) upon a trust within the meaning of the Trustee Act, 1850 ; and in every such case it shall be lawful for the Court of Chancery (c), if the said Court shall think it expedient for the purpose of carrying such sale iuto effect, to make an order vesting such lands or any part thereof, for such estate as the Court shall think fit, either in any purchaser or in such other person as the Court shall direct ; and every such order shall have the same effect as if such person so seised or possessed or entitled had been free from all disability, and had duly executed aU proper con- veyances and assignments of such lands for such estate {d). Section retro- (a) This section applies retrospectively to a decree made before the passing of speotive. the Act [Wake v. Wake, 17 Jur. 645). (b) This removes the difficulty which arose in Weston v. Filer, 5 De Gr. & S. 608 ; the 29th section of the Trustee Act, 1860, only applied to a sale for payment of debts. (c) Now the Chancery Division of the High Court (Jud. Act, 1873, s. 34). (d) The order was made in the suit without a petition where one of the vendors was a lunatic (Earrison v. Smith, 17 W. B. 646). The section applies to sales under the Partition Acts, 1868 and 1876, and is not limited to cases of persons under disability (Beckett v. Sutton, 19 Ch. D. 646). The application under this section is by summons (Ord. LV. r. 2 (8),. infra). Power to II. That sections numbered 17 and 18 in the Queen's Printer's copy Sr vesting ^^ *^® Trustee Act, 1850, be repealed; and in every case where any the estate, on person is or shall be jointly or solely seised or possessed of any lands retusai or ^^ entitled to a contingent right therein upon any trust, and a demand trustee to shall have been made upon such trustee by a person entitled to convey or require a conveyance or assignment of such lands, or a duly autho- rised agent of such last-mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right, it shall be lawful for the Court of Chancery, if the said Court shall be satisfied that such trustee has wUfuUy refused or neglected to convey or assign the said lands for the space of twenty-eight days after such demand, to make an order vesting such lands in such person in such manner and for such estate as the Court shall direct ; or releasing such TRUSTEE EXTENSION ACT, 1852. gj contingent right in suoh manner as the Court shall direct ; and the 15 & 16 Viot, said order shall have the same effect as if the trustee had duly exe- "■ ^^' °- ^- Cttted a conveyance or assignment of the lands, or a release of such right, in the same manner and for the same estate (e). (e) See sect. 23 of the Act of 1850, p. 73, ante, and notes. The refusing trustee Trustee need ne^ not be served [Me Crowe, 13 Eq. 26). not be served. A vesting order was made under this section to defeat an attempt at extortion on VfiaHnD- T rl^.,°* S^i?"?**^ ^^' O'lX^nell, 19 W.E. 522) ; and see KnigU v. Knight, 14 oXs L.T.,161;W.N. (1866), 114;iJse™2,™«,W.N. (1879), 52;27W.E. 534 T^^' The section was acted on -where a mortgagor of copyholds who had covenanted ■''Mortgagor ot to surrender neglected to do so VRe Crowe, 13 Eq. 26) cop j holds I, > 1 / refusing to m. That -when any infant shall be solely entitled to any stock upon p any trust, it shall be lawful for the Court of Chancery to make an make an order order vesting in any person or persons the right to transfer such stock, 1°"^ *^® i-cwis- or to receive the dividends or income thereof ; and when any infant of dividends shall be entitled jointly with any other person or persons to any stock °* «*°'''^i'i upon^. any trust, it shall fee lawful for the said Court to make an order infant vesting the right to transfer such stock, or to receive the dividends or t''"stee. income thereof, either in the person or persons jointly entitled with the infant, or in him or them together with any other person or persons the said Court may appoint (/). (/) This section was passed to meet the case of Cramer v. Cramer, 5 De Gr. & S. 312 ; 16 Jur. 831. Eor cases under the section, see Sanders v. Earner, 25 Beav. 467 ; 6 W. E. 476 ; Sevoy v. Devoy, 3 8m. & G. 403 ; 3 Jur. N. S. 79 ; Stone v. Stone, 3 Jur. N. S. 708 ; Rives v. Sives, W. N. (1866), J44 ; Re Westwood, 6 N. E. 61, 316 ; and see Gardner v. Cowles, 3 Ch. D. 304 ; 24 W. E. 920, where the infant was the sole beneficial owner of the stock. In Re Morgan, Seton, 516, the right was vested in the infant's guardian. Where stock to which an infant was beneficially entitled had been invested in the joint names of himself and another person, the Couii; made an order imder this section vesting the right to transfer the stock in the other person (Re Sarwood, 20^:!h. D. 636). IV. That where any person shall neglect or refuse to transfer any On neglect to stock (jr), or to receive the dividends or income thereof, or to sue for or transfer stock recover any chose in action, or any interest in respect thereof, for the order may be space of twenty-eight days next after an order of the Court of ^^^ vesting Chancery for that purpose shall have been served upon him (h) it shall transfer in be lawful for the Court of Chancery to make an order vesting all the such person right of such person to transfer such stock, or to receive the dividends gjiaU appoint, or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said Court may appoint (»'). (g) See sect. 23 of the former Act, p. 73, amte. Vesting order The order under this section may, it seems, be made on motion [Re Solbrook, of stock. 8 W. E. 3 ; 5 Jur. N. S. 1333 ; Skynner v. Feliehet, 9 W. E. 191). Order may {/() The service should be personal, unless the order can be made under section 23 ^^ made on of the principal Act [CoUs v. Benhow, W. N. (1873), 60). motion (i) An order may be made although the petition for the order which has not been complied with has not been served on the recalcitrant person [Re Moimt, 24 L. T. 290). v. When any stock shall be standing in the sole name of a deceased On like person, and his personal representative shall refuse or neglect to executor^ 92 TRUSTEE EXTENSION ACT, 1852. 15 & 16 Vict, u. 55, s. 5. similar order may be made. Bank of Eng- land and com- panies to comply with orders. (See SB. 20 and 26 of Trustee Act, 1850.) Indemnity to Bank and companies so obeying. transfer such stock or receive the dividendB or income thereof for the space of twenty-eight days next after an order of the Coiirt of Chancery for that purpose shall have been served upon him, it shall be lawful for the Court of Chancery to make an order vesting the right to trans- fer such stock, or to receive the dividends or income thereof, in any person or persons whom the said Court may appoint. VI. "When any order being or purporting to be under this Act or under the Trustee Act, 1850, shall be made by the Lord Chancellor, intrusted as aforesaid, or by the Court of Chancery, vesting the right to any stock, or vesting the right to transfer any stock, or vesting the right to call for the transfer of any stock, in any person or persons, in every such case the legal right to transfer such stock shall vest accord- ingly (k) ; and the person or persons so appointed shall be authorised and empowered to execute aU deeds and powers of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names, or otherwise, to the extent and in conformity with the terms of the order ; and the Bank of England and aU com- panies and associations whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terms of such order, as the said Bank of England, or such companies, associations, or persons would have been bound and com- pellable to comply with the reqtiisitions of the person in whose place such appointment shall have been made. (A) This enactment was rendered necessary by Se Smyth, 4 De Gr. & Sra. 499, which decided that the former Act only gave the right to call for a transfer of the stock. VII. That every order made or to be made, being or purporting to be made under this or the Trustee Act, 1850, by the Lord Chancellor, intrusted as aforesaid, or by the Court of Chancery, and duly passed and entered, shall be a complete indemnity to the Bank of England, and aU companies and associations whatsoever, and all persons, for any act done pursuant thereto ; and it shall not be necessary for the Bank of England, or such company or association, or person to inquire concerning the propriety of such order, or whether the Lord Chan- cellor, intrusted as aforesaid, or the Court of Chancery had jurisdiction to make the same {kk). [kk) Notwithstanding this section the Bank is justified, where it considers an erroneous or defective order has been made, in requiring die point to be brought before the Court for reconsideration {Re Westwood, 6 N. R. 316 ; Frodaham v. Frod- sham, 15 Ch. D. 317). Where, before the fund could be transferred into the names of new trustees appointed by the Court, one of them died, the order was amended by inserting the words " or the survivor of Ihem " (Ee Glemville, W. N. (1877), 248). Power to VIII. That when any person is or shall be jointly or solely seised tnwtees ^^ °^ possessed of any lands or entitled to any stock upon any trust, and Ueu of persons such person has been or shall be convicted of felony, it shall be lawful convicted of ^^^ ^-^^^ Court of Chancery, upon proof of such conviction, to appoint TRUSTEE EXTENSION ACT, 1852. 93 any person to be a trustee in tlie place of sncli convict, and to make 15 & 16 Vict, an order for vesting such lands, or the right to transfer such stock, ' " " and to receive the dividends or income thereof, in such person to he so appointed trustee ; and such order shall have -the same effect as to lands as if the convict trustee had been free from any disability, and had duly executed a conveyance or assignment of his estate and interest in the same (1). {I) See note (e), ante, p. 86, as to escheat of trust property. IX. That in aU cases where it shall be expedient to appoint a new Power to the trustee, and it shall be found inexpedient, difficult or impracticable so *-'°™^? *° . . r ' r appoint new to do without the assistance of the Court of Chancery, it shall be trustees lawful for the said Court to make an order appointinar a new trustee yliere there '■•■ ° IS no existing or new trustees, whether there be any existmg trustee or not at the trustee. time of making such order (m). {>») See notes to s. 32 of the Aot of 1850, ante, p. 79. The Court sitting in lunacy has power under this section to appoint new trustees of the win cf a deceased lunatic, where the trustees appointed by him have died in his lifetime, for the purpose of gettiiag rid of the funds standing to the credit of the lunacy (Se Orde, 24 Ch. D. 271). X. In every case in. which the Lord Chancellor, intrusted as afore- Chancellor said, has jurisdiction under this Act, or the Trustee Act, 1850, to ™ayinake order a conveyance or transfer of land or stock, or to make a vesting appointment order, it shall be lawful for him also to make an order appointing a °^-^^f^' new trustee or new trustees in like manner as the Court of Chancery being neees- may do in like cases, without its being necessary that the order should ^f''^,*??* ** be made in Chancery as well as in lunacy, or be passed and entered made in by the Eegistrar of the Court of Chancery (n). Chancery, &e. (») See Re WaugJi, 2 De Gr. M. & G. 279 ; and note (o) to the 3rd section of the Jurisdiction former Aot, ante, p. 65. "i lunacy. XI. That all the jurisdiction conferred by this Act, on the Lord As to powers Chancellor, intrusted by virtue of the Queen's sign manual with the int^usted^ care of the persons and estates of lunatics, shaU and may be had, with the care exercised, and performed by the person or persons for the time being intrusted as aforesaid (o). (o) See the Judicature Act, 1875, sect. 7, poit. Xn. That this Act shall be read and construed according to the Act to he definitions and interpretations contained in the second section of the oonstraed as Trustee Act, 1850, and the provisions of the said last-mentioned Act Trustee Aot, (except so far as the same are altered by or inconsistent with this Act) 1850. shall extend and apply to the cases provided for by this Act, in the same way as if this Act had been incorporated with and had formed part of the said Trustee Act, 1850. 94 TRUSTEE EXTENSION ACT, 1852. 15 & 16 Vict. Xin. That every order«to be made under the Trustee Act, 1850, or "• ' "• ^^' this Act, which shall have the effect of a conveyance or assignment of All orders any lands, or a transfer of any such stock as can only he transferred Tnwtee'iot ^^ stamped deed, shall be chargeable with the like amount of stamp 1850, or this duty as it would have been chargeable with if it had been a deed ohareeable executed by the person or persons seised or possessed of such lands or ■with the same entitled to such stock ; and every such order shall be duly stamped for deedi'of"*^ ^ denoting the payment of the said duty {p). uvey oe. ^^^ ^^ ^ ^-^ stamp duties, see the Stamp Act, 1870 ; Madgett v. Commissioners of Inland Revenue, 3 Ex. D. 46. No order will be passed by the registrar until it has been duly stamped as required by this section (DanieU, 2129). 16 & 17 Vict. CHAEITABLE TRUSTS ACT, 1853 c. 137. 16 & 17 VICT. Cap. 137, s. 28. An Act for the letter Administration of Charitable Trusts. [20th Aug. 1853.] Jurisdiction XXVIII. Where the appointment or removal of any trustee (a) or where'inoome ^^^ other relief, order, or direction relating to any charity of which of charities the gross annual income for the time being exceeds thirty pounds ceed ^0* ^to ^^ ^^ considered desirable, and such appointment, removal, or other appoint or re- relief, order, or direction might now be made' or given by the Court of moTO trustees Qjj^ancery, in respect either of its ordinary or its special or statutory other relief, jurisdiction, or by the Lord Chancellor intrusted with the care and commitment of the custody of lunatics, it shall be lawful for any per- son authorised in this behalf by the order or certificate of the said Board (5) or for the Attorney-General to make application (without any information, bUl, or petition) to the Master of the EoUs, or one of the Vice-Chancellors (c) sitting at chambers, for such order, direc- tion, or relief as the nature of the case may require ; and the Master of the Eolls or the Vice-Chancellor (o) to whom any such appKcation shall be made, shall and may proceed upon and dispose of such appli- cation ia chambers, save where he may think fit otherwise to direct, and shall and may have and exercise thereupon all such jurisdiction, power, and authority, and make such orders, and give such directions in relation to the matter of such application as might now be exer- cised, made, or given by the Court of Chancery, or by the Lord Chan- cellor, intrusted as aforesaid, in a suit regularly instituted, or upon petition as the case may require ; and the Master of the Eolls and Vice- Ohancellors (c) respectively shall, in relation to such applications as CHARITABLE TRUSTS ACT, 1853. 95 aforesaid, and the proceedings thereon (subject to any rules which 16 & 17 Vict. may be made by the Lord ChanceUor, with the advice and consent of °- •^^^' °" ^^' them or any two of them) have all such powers of directing matters to be heard in open Court, and of ordering what matters shall be heard and investigated by themselves and their chief clerks respectively, and such other powers and authorities as by the Act of the last session of Parliament, chapter eighty (rf), are vested in or authorised to be exer- cised by them at chambers, and the provisions of the said Act appli- cable to orders made by the Master of the EoUs or any of the Vice- Chancellors (c) at chambers, shall extend to aU orders so made under this Act : Provided always, that save as may be otherwise provided by any new rules to be made by the Lord Chancellor, with such advice and consent as aforesaid, the determinations of the Master of the Eolls and Vice-Chancellors (c) respectively, upon and in relation to such applications as aforesaid, shall not be subject to appeal in any case where the gross annual income of the charity does not exceed one hundred pounds : Provided also, that it shall be lawful for the Master of the EoUs or any Yice-Chancellor (c), where, under the circum- stances of any application as aforesaid, he may so see fit, to direct that for obtaining the relief, order, or direction sought for by such appli- cation, an information, biE or petition, as the case may require, shall be filed or presented and prosecuted as now by law req[uired, and to abstain from further proceeding on such application (e). {a) The jurisdiction to appoint new tmstees, on petition, under the Trustee Act, Trustee Act. is not taken away, though it is seldom exercised ; see note {7c), p. 79, ante. The district Courts of Bankruptcy and County Courts were given similar juris- Jurisdiction diction over charities with an income not exceeding SOL (s. 32) ; and now, by the of Bankruptcy Charitable Trusts Act, 1860 (23 & 24 Vict. c. 136, s. 11), over charities With an and County income up to 501. Courts ; By the Act of 1860, sect. 2, a concurrent jurisdiction over charities is given to of Charitv the Charity Commissioners, as to charities with an income exceeding 501., on the Commis- appUcation of the majority of the trustees ; and as to charities with a less income, signers on the application of the Attorney- General, the trustees, or any person interested in the charity, or inhabiting the place where it is situate, unless they think the ease from some difficulty of law or fact, fitter for the adjudication of a Court. (b) I. e. the Charity Commissioners for England and Wales sitting as a Board (16 " The said & 17 Vict. c. 137, 8. 66). Board." if) The application is now made to a judge of the Chancery Division of the High Application Court (Judicature Act, 1873, ss. 34, 74). to whom ' (rf) The Act here referred to is the Master in Chancery Abolition Act, 1852, made, most of which is now repealed. 15 & 16 V t («) The application under the section is by summons in chambers (Ord. LV. „ » r. 13, R. S. C. 1883, infra). As to appealing from an order, see Ord. LV. r. 14, "' infra; and as to fees and costs, see Ord. LXV. rr. 24, 25, infra. Proceedings. 96 INFANTS' SETTLEMENT ACT. 18 & 19 Viot. c. 43. Settlements by infants with the approbation of the Court. Duty of Court under this Act. Draft how settled. Keference to chambers. What clauses inserted in settlement. Settlement made out of Court. Post-nuptial settlement. INFANTS' SETTLEMENT ACT. 18 & 19 VIGT. Cap. 43. An Act to enable Infants, with the Approbation of the Court of Chancery, to make binding Settlements of their Real and Per- sonal Estate on Marriage. [2nd July, 1855.] Whereas great inconveniences and disadvantages arise in conse- quence of persons wlio marry during minority being incapable of making binding settlements of their property: Por remedy whereof be it enacted, &c., as follows : I. Prom and after the passing of this Act it shall be lawful for every infant upon or in contemplation of his or her marriage, with the sanction of the Court of Chancery (a), to make a valid and binding settlement (J) or contract for a settlement of aU or any part of his or her property, or property over which he or she has any power of ap- pointment, whether real or personal, and whether in possession, rever- sion, remainder, or expectancy ; and every conveyance, appointment, and assignment of such real or personal estate, or contract to make a conveyance, appointment, or assignment thereof, executed by such infant, with the approbation of the said Court, for the purpose of giving effect to such settlement, shall be as valid and ejffectual as if the person executing the same were of the full age of twenty-one years : Provided always, that this enactment shall not extend to powers of which it is expressly declared that they shall not be exercised by an infant. (a) Now the Chancery Division of the High Court (Jud. Act, 1873, s. 34 (2), infra). (J) The Act did not impose on the Court any other duty than that of looking to the propriety of the settlement ; and consequently, the propriety of the marriage itself is not a question for its consideration, though of course ' ' what in each case may be a proper settlement must sometimes lead to an inquiry as to all the circum- stances connected with the" marriage " [Ee Dalton, 6 De Gr. M. & Gr. 201 ; 2 Jur. N. S. 1077, overruling S. C. 3 Sm. & Gr. 331). See, however, Se Strong, 2 Jur. N. S. 1241 ; 26 L. J. Ch. 64. See as to the employment of the conveyancing counsel, Re Williams, 8 W. R. 678 ; 6 Jur. N. S. 1064. Where the infant was a ward of Court in a suit, two petitions, were presented, the first to obtain an order for a strict settlement, and the second to sanction the settlement when prepared [Fowell v. Oakley, 34 Beav. 576) ; and see Se Yates, 7 W. R. 711. Where a female infant's fortune was very considerable, the Court referred the whole matter to chambers {He Olive, 11 W. E. 819) ; but under special circumstances the reference to chambers was dispensed with {Ex parte Smith, 22 W. E. 294). See now note [d] to sect. 3. The Master of the Rolls refused to allow a clause providing that, in the event of any person professing the Roman Catholic religion becoming entitled, he should forfeit his interest under the settlement (Re Williame). But the insertion of the usual name and arms clause was permitted {Hid.). For the form of settlement adopted when a man married an infant ward of Court in defiance of am order of the Court, see Se Sampson,^ 25 Ch. D. 482 ; 63 L. J. Ch. 457. The Court has no jurisdiction under this Act to approve a settlement of an infant's property originally made without its concurrence {per V.-C. Stuart in Se Fuller's Settlement, Feb. 10, 1860). The Act extends to post-nuptial settlements {Se Sampson; Fowellv. Oakley, 34 Beav. 676 ; and see Se Hoare, 11 W. R. 181). But the Court has no i\irisdiction INFANTS' SETTLEMENT ACT. 97 over the property of an infant, not a ward of Court, wlio marries after she is of an 18 & 19 Viot. age to contract marriage (ije Potter, 1 Eq. 484). o. 43. Proceedings commenced with respect to an infant under the Act in no way pre- vent the payment out to the infant when of age, if no settlement has been made (Sams V. Cronin, 22 W. E. 204). n. Provided always, tliat in case any appointment under a power In case infant of appointment, or any disentailing assurance, shall have'been executed ^^l ^point- by any infant tenant in tail under the provisions of tMs Act, and such ment, &o., to infant shaU afterwards die under age, such appointment or disentail- ® ^°* ' ing assurance shall thereupon become absolutely void. m. The sanction of the Court of Chancery (c) to any such settle- The sanction ment or contract for a settlement may be given, upon petition {d) pre- of chancery sented by the infant or his or her guardian (e), in a summary way, to be given without the institution of a suit; and if there be no guardian, the ^^P"^ P6*i*^°°-^ Coxirt may require a guardian to be appointed or not, as it shall think fit ; and the Court also may, if it shall think fit, require that any person interested or appearing to be interested in the property should be served with notice of such petition (/). (e) Now the Chancery Division of the High Court (Jud. Act, 1873, s. 34 (2), infra). {d) The application is now made by simmions (Ord. LV. r. 2 (10), infra). A Application petition was necessary (under the former practice), although a suit had been insti- is now by tnted (PearefA v. Marriott, W. N. (1866), 48). summons. (e) In Se Strong, 26 L. J. Ch. 64 ; 2 Jur. N. S. 1241, L. J. Knight Bruce thought Guardian that an affidavit of the respectability of the person who acted as guardian ought to petitioning, be produced. The application must not be by a next friend, and a petition pre- sented by a next friend without the infant's concurrence was dismissed with costs. (Se Potter, 7 Eq. 484 ; but see Wortham v. Pemberton, 1 De Gr. & Sm. 644). (/ ) As to the evidence required on an application xmder the Act, see Ord. LV. Evidence, r. 26, infra. IV. Provided always, that nothing in this Act contained shall apply Not to apply to any male infant under the age of twenty years, or to any female to™ales under infant under the age of seventeen years {g). females under 17 years of (a) Evidence must be produced to show the age of the infant (Ord. LV. r. 26, aee R. S. C, infra). ^ CUSTODY OP INFANTS ACT. 36 & 37 vict. c. 12. 36 & 37 VICT. Cap. 12. An Act to amend the Law as to the Custody of Infants, [24th April, 1873.] Wheeeas it is expedient further to amend the law relating to the custody of iofants {a). {a) See 3 & 4 Vict. c. 90, which gives the Court of Chancery jurisdiction to assign Infant felon, the care of any infant convicted of felony to a voluntary guardian. M. H CUSTODY OF INFANTS ACT. 36 & 37 Vict. 0. 12, s. 1. Order that mother may have access to and custody of infant imder 16 years. The Court. Married woman may petition alone. Principles on ■which JTiris- diction exer- cised. Father' Bright to custody. Education of infants. Illegitimate child. Variation of order giving custody to mother. Be it therefore enacted, &o., as follows : — I. Prom and after the passing of this Act it shall he lawful for the High Court of Chancery (S) in England or in Ireland respectively, upon healing the petition by her next friend (c) of the mother of any infant or infants under sixteen years of age, to order that the peti- tioner shall have access to such infant or infants at such times and subject to such regulations as the Court shall deem proper, or to order that such infant or infants shall be delivered to the mother, and remain in or under her custody or control, or shall, if already in her custody or under her control, remain therein until such infant or infants shall attain such age, not exceeding sixteen, as the Court shall direct; and further, to order that such custody or control shall be subject to such regulations as regards access by the father or guardian of such infant or infants, and otherwise, as the said Court shall deem proper {d), (J) Now the Chancery Division of the High Court of Justice (Jud. Act, 1873, ES. 33, 31). (c) Having regard to the provisions of the Married "Women's Property Act, 1882, it would appear that a next friend is no longer required; see the Act, infra. The mother may by leave petition in formd pauperis {Me Zewin, W. N. (1884), 224). . [d] The effect of this section is to give the Court an absolute discretionary power as to the custody of the infant on the application of the mother ; but in exercising this jurisdiction the Court takes into consideration three matters — the paternal right, the marital duty, and the interests of the infant {Se Tat/lor, 4 Ch. D. 157; 25 W. E. 69 ; Se Eldertm, 25 Ch. D. 220 ; 32 W. R. 227). Where by a covenant in a separation deed executed after the passing of the Act (see sect. 2, infra), the father had agreed that his infant daughter should remain in his wife's custody during eleven months in each year, but she held atheistical opinions, and had pub- lished and circulated an obscene book, and refused to allow the child to receive any religious instruction, the child was removed from the custody of the mother {Se Besant, 11 Ch. D. 608 ; and see Besant v. Wood, 12 Ch. D. 605). As to a breach of the marital duty by the father, see Se Elderton. The Court wiU look at all the surrounding circumstances before it will remove a female infant of tender years from thejsjistody of the mother, and other relations, whose conduct with regard to the child is imimpeached, and place her xmder the control of the father {fie Ethel Brown, 13 Q. B. D. 614). As to the general right of a father to the custody of hia children, and his corre- sponding obligations, and the jurisdiction of the Court to remove the children from his care if he neglects his duties, or in consequence of his profligacy and immoraUty, see note to Eyre v. Countess of Shaftesbury, 2 "W. & T. Leading Cases ; Swift v. Swift, 34 Beav. 266 ; Me Kaye, 1 Ch. 387 ; Andrews v. Suit, 8 Ch. 622 ; WelUsky v. Buke of Beaufort, 2 Euss. 1 ; Me Flomley, 47 L. T. 283 ; Be Agar-Ellis, 24 Ch. D. 317. See generally for the principles of the Court as to guardianship and religious education of infants, Awstm v. Austin, 34 Beav. 257 ; on app. 13 W. E. 761 ; Me Newbery, 1 Eq. 431 ; 1 Ch. 263 ; Nugmt^. Yetzera, 2 Eq. 704 ; Me Kaye, 1 Ch. 387 ; Me Agar-Ellis, 10 Ch. D. 49 ; Me Clarice, 21 Ch. D. 817. As to the right of the mother to the custody of an illegitimate child, see M. t. Nash, 10 Q. B. D. 454. Where an order is made giving the custody to the mother " until further order," an application to vary the order by reason of something subsequent to its date should be made, not by way of appeal, but by motion before ttie judge of first instance ; and such a motion can be made by the respondent to the originS petition. The provision in the section, that the application shaUibe made by tiie mother, applies only to the original petition [Me Molt, 16 Ch. D. 115). In case of II. No agreement contained in any separation deed made between de^aTbetween *^® *^*^®^ ^'^^ mother of an infant or infants shall be held to be father and invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother ; mother. CUSTODY OF INFANTS ACT. 99 Provided always, that no Court shall enforce any such, agreement if 36 & 37 Vict, the Court shall he of opinion that it -will not he for the benefit of the "' '' ^' ' infant or infants to give effect thereto (e). (e) This enactment was rendered necessary by such cases as Vansiitart r. Van- sittart, 2 De Gr. & J. 249, and the other cases referred to in SamiUon v. Sector, 6 Ch. 701. See JRe Sesant, 11 Ch. D. 608 ; Besant v. Wood, 12 Oh. D. 605, cited in note (<2) to 8. 1. in. The Act of the second and third Victoria, chapter fifty-four, Repeal of iatituled " An Act to amend the law relating to the custody of in- ^ g^^ ^° ' fonts," shall he and is hereby repealed (/). (/) For the practice under this Act, see 2 Dan. Ch. Pr., 5th ed., pp. 1926, 1927. LAW OF PEOPEETY AND TRUSTEES EELIEE 22&23Vict. c. 35. AMENDMENT ACT. 22 & 23 VICT. Cap. 35. An Act to further amend the Law of Property, and to reUeve Trustees. [13th August, 1859.] [Sections 1 and 2 relate to provisoes for re-entry on breach of covenants in a lease. Leases. and enact that a lessor giving license for, or ■waiving one Ireacli of covenant (23 & 24 Vict. 0. 38, s. 6, post), or in the case of one of several lessees, is not to lose the benefit of the covenanta.] [By section 3 the apportionment of rent among lessors is not to destroy the right of re-entry. See Conv. Act, 1881, s. 12, infra."] [Sections 4 to 9 are repealed by the Conv. Act, 1881.] [The 10th section relates to apportionment of rentcharge, which is not to extin- Apportion- guish the rentcharge ; see Booth v. Smith, W. N. (1884), 230.] ment of rent- charge. [Section 11 provides that the release of part of land charged is not to affect a judgment ; but see now 27 & 28 Vict. o. 112, post.] [Section 12 relates to appointments under powers ; and as, by common law, if Defective the formalities required by the instrument creating the power were not stricth/ com- appointments. pUed with, the appointment was void, while Courts of Equity went to the other extreme, and aided defective execution of powers, in favour of purchasers, &c., even where the defect was in matter of substance, e.g., the want of a consent required by an instrument, this section provides that " a deed hereafter executed in " the presence of and attested by two or more witnesses in the manner in which "deeds are ordinarily executed and attested shall, so fa/r as respects the execution " and attestation thereof, be a valid execution of a power of appointment by deed, or by "any instrument in writing not testamentary : Provided always, that this provision " shall not operate to defeat amy direction in the instrument creating the power that "the consent of any particular person shall be necessary to a valid execution, or " that any act shall he performed in order to give validity to any appointment."] [By section 13 a bond fide sale under a power is not to be avoided by reason of Sale under miitien payment to tenant for life. This section was to meet the case of power. Cocherellr. ChohneUy, 1 K. & M. 418.] [Sections 14 to 18 provide that (subject to the savings contained in section 18, Sale by seeLewin 420, seq.) where by any will which shall come into operation after the trustees and of thia Act the testator shall have charged his real estate with the payment executors. h2 100 LAW OF PEOPERTT AND TRTTSTEES EEEIEP AMENDMENT ACT. 22 & 23 Vict, of his debts, or with the payment of any legacy or other speoifio sum of money, 0. 35. and ehall hare devised the estate so charged to any trustee or trustees, the devisee in trust may raise money by sale, notwithstanding want of express power in the will ; but if he shall not have devised the hereditaments charged as aforesaid in such terms as that his whole estate and interest therein shall become vested in any trustee or trustees, the executor or executors (see He Clay, 16 Ch. D. 3) are to have the power of raising money.] [Sections 19 and 20 supply a deficiency in the law of inheritance, 3 & 4 Will, i, 0. 106, and will be found in Sugden's R. P. Statutes, 259.] Assignment [Section 21 relates to the assignment of personalty, and provides that "any to self and " person shall have power to assign personal property, now by law assignable, in- others. " eluding chattels real, directly to himself and another person or other persons or " corporation, by the like means as he might assign the same to another." See Conv. Act, 1881, s. 50, infra.'] Registration [Section 22 enacts that after December 31, 1859, the provisions as to registration of judgments, of judgments shall apply to Crown debts.] [Section 23 relates to trustees' receipts ; see now Conv. Act, 1881, s. 36, infra.'] Concealment [Section 24 provides that any vendor or mortgagor ooucealiag any settlement, of inoum- deed, will, or other instrument material to the title, or any incumbrance, from the brances a purchaser [or mortgagee], shall be guilty of a misdemeanor, and punishable misdemeanor, accordingly.] The insertion of the words "or mortgagee," which were accideutaEy omitted, was provided for by 23 & 24 Vict. c. 38, s. 8, post, p. 104. Semble, a. 24 does not apply to the concealment of an incumbrance prior to the date before which the conditions of sale stipulate that no title shall be fhown (Smith v. Sobinson, 13 Ch. D. 148). liiterpreta- [Section 26 interprets " land," "mortgage," "mortgagor," "mortgagee," and tion of terms, "judgment," as used in the previous provisions of the Act.] Trustees and [By section 26 trustees, executors, or administrators making payment under a executors. power of attorney are not to be liable by reason of death of party giving such power. See now Conv. Act, 1881, o. 47, and Conv. Act, 1882, ss. 8, 9, infra.] As to liability XXVII. Where an executor or administrator, liable as such to the of executor or , , j. x • j • i administrator rents, covenants, or agreements contained m any lease or agreement in respect of for a lease granted or assigned to the testator or intestate whose estate is heing administered, shall have satisfied all such liabilities under the said lease or agreement for a lease as may have accrued due and been claimed up to the time of the assignment hereafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed or ascertained sum covenanted or agreed by the lessee to be laid out on the property demised or agreed to be demised, although the period for laying out the same may not have arrived, and shall have assigned the lease or agreement for a lease to a purchaser thereof (a), he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto . respectively, without appropriating any part, or any further part (as the case may be), of the personal estate of the deceased to meet any future liability under the said lease or agreement for a lease; and the executor or administrator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said lease or agreement for a lease ; but nothing herein con- rents, cove Hants, or agreements, 1 LAW OF PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. V^ , -101 tained shall prejudice the right of the lessor or those claiming under 22 & 23; Viot. him to foUow the assets of the deceased into the hands of the person °'^''^-— "" or persons to or amongst whom the said assets may have been dis- tributed. (a) This section is retrospective {Smith v. Smith, 1 Dr. & Sm. 384 ; Se Green, 2 Section retro- De Gr. F. & J. 121 ; and see Seilly v. Meilly, 34 Beav. 406 ; Bennett v. lytton, 2 J; speotive. & H. 1S5, 158). The c^se of a leasehold assigned to a residuary legatee is not within this section, Legatee not a such legatee not being a purchaser {Dodson v. Sammeli, 1 Dr. & Sm. 575 ; 9 W. R. purchaser. See as to the effect of the section, Dodson v. Sammeli; Re HowMns, 10 Hare, App. xxxiii. ; Se Forest, W. N. (1868), 194 ; and see England v. Lord Tredegar, 1 Bq. 314 ; Seton, 891. XXV ill. In like manner, where an executor or administrator Hahle As to liability as such to the rents, coTenants, or agreements, contained in any con- lo^^ifresDeot veyance on chief rent or rentcharge (whether any such rent be bylimi- of rents, &c., tation of use, grant or reservation), or agreement for such conveyance, ^oeTon^ent- granted or assigned to or made and entered into with the testator or charge, intestate whose estate is being administered, shall have satisfied all such liabilities under the said conveyance, or agreement for a convey- ance, as may have accrued due and been claimed up to the time of the conveyance hereafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the grantee to be laid out on the property conveyed, or agreed to be conveyed, although the period for laying out the same may not have arrived, and shaU. have conveyed such property, or assigned the said agreement for such conveyance as aforesaid, to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part, (as the case may be) of the personal estate of the deceased to meet any future liability under the said con- veyance or agreement for a conveyance ; and the executor or adminis- trator so distributing the residuary estate shall not, after having made or executed such conveyance or assignment, and having, where neces- sary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsec[uent claim under the said conveyance, or agree- ment for conveyance; but nothing herein contained shall prejudice the right of the grantor, or those claiming under him, to follow the assets of the deceased into the hands of the person or persons to or among whom the said assets may have been distributed. •yy I X . Where an executor or administrator shall have given such As to dis- or the like notices as in the opinion of the Court in which such executor ^he a^sets°of or administrator is sought to be charged would have been given by the testator or Court of Chancery in an administration suit, for creditors and others to ^oyf/'^yfn®'^ send in to the executor or administrator their claims against the estate by executor, or of the testator or intestate, such executor or administrator shall, at the administrator, expiration of the time named in the said notices or the last of the said notices for sending in such claims (J), be at liberty to distribute the 102 LAW OP PEOPEETT AKD TEUSTEES EELIEF AMENDMENT ACT. 22 & 23 Vict, assets of the testator or intestate, or any part thereof, amongst the "• ^^' "' ^^' parties entitled thereto, having regard to the claims of which such executor or administrator has then notice, and shall not he liable for the assets or any part thereof so distributed to any person of whose claim such executor or administrator shall not have had notice at the time of distribution of the said assets or a part thereof, as the case may be ; but nothing in the present Act contained shall prejudice the right of any creditor or claimant to follow the assets or any part thereof into the hands of the person or persons who may have received the same respectively. Indemnity of W As to tte advertisements, see Ord. LV. r. ii et seg. post ; Wood v. Weightman, executors 13 Ec[. 434. Executors acting under the provisions of this section, whether they issuingnotioes tave actually paid legacies over, or only appropriated them, have complete protec- to creditors tion against future claims {Glegg v. Sowland, 3 Eq. 368 ; and see Hunter v. Toung, i Ex. D. 256). This section does not protect executors against claims -of which they have in fact notice {Be Zand Credit Company of Ireland, "W. N. (1872), 210) ; and see Wood v. Wood, 21 W. E. 135. Claims hy The section protects an administrator who has given the required notices from next of Hn. claims by the next of kin (Ifewton v. Sherrg, 1 C. P. D. 246 ; 24 W. E. 371). Trustee, XXX. Any trustee, executor, or administrator shall be at liberty, ^vlppiv by 'w^itbout the institution of a suit, to apply by petition to any judge of petition to the High Court of Chancery, or by summons upon a written statement tuto's'^ °' *° ^-"^y ^'^"^ JTidge at chambers, for the opinion, advice, or direction of opinion, ad- such judge on any question respecting the management or administra- maSaffem^t ^^°^ °^ ^^^ ^^'^^^ property or the assets of any testator or intestate, such &c., of trust application to be served upon or the hearing thereof to be attended by property. g^jj persons interested in such application, or such of thSm as the said judge shall think expedient; and the trustee, executor, or adminis- trator acting upon the opinion, advice, or direction given by the said judge shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator in the subject matter of the said application : Provided nevertheless, that this Act shall not extend to indemnify any trustee, executor, or administrator in respect of any act done in accordance with such opinion, advice, or direction as aforesaid, if such trustee, executor, or administrator shall have been guilty'of any fraud or wilful conceal- ment or misrepresentation in obtaining such opinion, advice, or direc- tion; and the costs of such application as aforesaid shall be in the discretion of the judge to whom the said application shall be made (c). Ord. LII. (c) The practice xrnder this section is now regulated by Ord. LII. rr. 19 — 22, rr. 19 — 22. infra. Application - "^^ application is generally made by petition (JJe Dennis, 5 Jur. N. S. 1388) ; hovv made ' though it maybe made by summons (Seton, 492). The petition or statement should •D J.-J.- j.\ ^^ signed by counsel (23 & 24 Vict. c. 38, s. 9 ; Se JBoulton, 30 W. E. 596 ; "W. N. Petition to be (1882), 62) ; and the " judge by whom it is to be answered, may require the peti- signed by tioner or applicant to attend him by counsel, either in chambers or in Court, where counsel. te deems it necessary to have the assistance of counsel " (sect. 9). The Court made an order under the section on the petition of a cestui que trust [Re Ward, 14 W. E. 96) ; and of one trustee without his oo-trustee's concurrence (Re Muggeridge, Johns. 625). Service. The applicant should serve the petition or summons on the persons beneficially interested [Re Green, 6 Jur. N. S. 530 ; 8 W. E. 403) ; but see Re Tuck, W. N. (1869), 15 ; Re Larkert, W. K. (1872), 85 ; Re French, 15 Eq. 68. LAW OF PEOPEETY AND TRUSTEES RELIEF AMENDMENT ACT. 103 _ " As the Act does not give any rigHt of appeal, it was not intended to decide 22 & 23 Viot. luce questions of law, its object being to procure for trustees at a small expense o. 35, s. 30. tne assistance of the Court upon points of minor importance arising in the manage^ meut of the trust" (Lewin, 535; Re Muggeridge, Johns. 625 ; Ee Mochett, Johns. What ques- 628 ; He Spiller, 2 L. T. 71 ; 8 W. E. 333 ; Se Leslie, W. N. (1876), 93 ; Ee Jacob, tions enter- 9 "W. R. 474). So the Court wiU give advice as to investments [Be Lorenz, 1 Dr. & tained on Sm. 401 ; Me Kmwles, 18 L. T. 809) ; or payment of debts [Re Box, 1 H. & M. 652) ; petition, or the propriety of trustees consenting to a sale [Earl Fowlett v. Rood, 5 Eq. 115) ; Questions of or advancing money for maintenance, or repairs [Re Lord Sotham, 12 Eq. 76 ; Cul- management. bertsoyi v. Wood, 19 W. E. 260) ; but as to leasing, see Re Shaw, 12 Eq. 124. So the Court has determined whether a power to invest iu the purchase of lands and hereditaments authorized a purchase of ground rents [Re Peyton, 7 Eq. 463 ; and see further as to investments. Re Lmgdale, 10 Eq. 39 ; Re Wedderhurn, 9 Ch. D. 112 ; Re Gardross, 7 Ch. D. 728 ; Re T. 15 Ch. D. 78, -where the consent of a person of unsound mind not so found, was required) ; -whether an appropriation of a legacy ought to have been made {Re Mwrray, W. N. (1868), 195) ; and whether part of the capital of infants' shares might be applied to their maintenance (JJe Tills, 17 W. R. 304). See also Re De la Warr, 16 Ch. D. 587 ; Re Mackintosh, 42 L. J. Ch. 208 ; Re T. 15 Ch. D. 78; Re Smith, W. N. (1872), 134; 20 W. E. 695; Re Leslie, 2 Ch. D. 185 ; Re Thatcher, 26 Ch. D. 426 ; Daniell, 2229. But where trustees were authorized by the settlement to lay out trust funds in Not (1) ques- purchasing real estate, which -was accordingly purchased, and a petition was pre- tions of detail sented to obtain a direction oi the Court as to the employment of a further portion where affida- of the trust funds in the permanent improvement of the purchased estates, the -vits are Court having no means of ascertaining the amount required or directing its applica- required ; tion, refused to make an order on petition [Re Barrington, 1 J. & H. 142 ; comp. Re Mockett, Johns. 628). In another case {Re Simson, 1 J. & H. 89), where the nor (2) question was whether a trustee would be justified in investing in East India stock or in railway debentures, or on mortgage of freeholds, copyholds, or leaseholds, V;-C. Wood answered the inquiry by simply stating that the trustees would be justified in investing in freehold securities in En^and or Wales, and gave no answer to the rest of the question ; and see Marsh v. Att.-Gen., 2 J. & H. 61, where questions of the Court thought the question too difficult to decide on petition, and Erected a bill ^jfB^oujty . So, where questions of construction arise, an action must be instituted, or the nor (3) advice of the Court taken under the Trustee Relief Act or Ord. LV. r. 3 ; see Re questions of Evans, 30 Beav. 232 ; Re Muggeridge, Johns. 625 ; Re Lorenz, 1 Dr. & Sm. 401, construction ; ■where V.-C. Kindersley refused, on a petition under this Act, to advise a sole trustee of a marriage settlement as to his discretionary power to make advances to the husband at the written request of the wife ; and Re Hooper, 29 Beav. 657, where the Master of the Eolls stated that the object of the Act was to enable trustees to obtain the opinion of the Court on matters of discretion vested in them, and not to determine questions of construction. These cases seem to over- rule cases where questions as to the validity {Re Michel, 28 Beav. 39) or con- struction {Re Green, 8 W. E. 403 ; 'Re Bamies, 9 W. R. 134 ; Re Elmore, 6 Jur. N. S. 1325; EjC Jacob, 29 Beav. 402) of a bequest have been determined upon petition under the section, and Ee Rett's WiU, 27 Beav. 576, where an opinion -was given turning to a certain extent upon exirinsic evidence admitted with a -view to the construction of a -wiU. See, however, Re Feyton's Settlement, 10 W. E. 515, where the Master of the Eolls on a petition under this Act decided that an absolute power of sale given to trustees, authorized them on a sale to fix a reserved bidding. The Court will not pronounce an opinion on a hypothetical case ; and, therefore, nor (4) refused to give any advice as to the incidence of future calls which might be made hypothetical on account of shares bequeathed {Re Box, 1 H. & M. 652 ; 11 W. E. 945). oases. The opinion of the Court was held not to be subject to appeal {Re Mockett, Johns, jq-g appeal 628) ; but see Jud. Act, 1873, B. 19 ; Re Norris, W. N. (1«83), 35, 65. No evidence is admissible on the application {Re Mockett) ; the facts must be taien to be as represented, ttie responsibility of such representations resting -with the trustees {Re Muggeridge, Johns. 625), and no inquiries -will be directed {Re Mockett). As a general rule the costs of an application under this section will be ordered to Costs. come out of the corpus of the trust property {ReM' Veagh, Seton, 491 ; ReEkoes, ibid.). But where the question arose as to the application of income, the costs came out of the income {Anon. 8 W. E. 333), [By sect. 31, trust instruments are to be deemed to contain clauses for the indem- nity of trustees. See Re Brier, 26 Ch. D. 238.] [Sect. 32 relates to investments by trustees, and this section is made retrospective by Lord St. Leonards' Act, 1860, sect. 12, post, p. 105, where this and the other seotionB relating to investments will be found.] [Sect. 33 provides that the Act shall not extend to Ireland.] 104 LAW OF PEOPEKTY FURTHER AMENDMENT ACT. 23 & 24 Vict. LA^ OF PEOPEETY FUETHEE AMENDMENT ACT. u. 38. ■ 23 & 24 VICT. Cap. 38. An Act to further amend the Law of Property. [23rd July, I860.] Judgments. [Section 1 provided that no judgment entered up after the passing of this Act (23 Writs of J"lyi I860) shall affect any land as to a bond fde purchaser for valuable considera- execution of tio^^i o'f ^ mortgagee (whether such purchaser or mortgagee have notice or not of judgments ^'^1 such judgment), unless a writ or other Am process o/ execution is issued and regis- should be re- t^ed before the execution of the conveyance or mortgage, and the payment of the gistered (see purchase or mortgage money by him : And no judgment entered up after the pass- now 27 & 28 ^S of tJi6 Act, nor any writ of execution or otiier process thereon, shall affect any Vict. c. 112 ^TO-A of whatever tenure as to a bond fide purchaser or mortgagee, although execu- tes*), tion or other process shall have issued thereon, and have been duly registered, unless such execution or other process shall be executed and put in force within three calendar months from the time when it was registered. See now the Act of 1864, post ; judgments registered before the date of this Act (23 July, 1860) affect purchasers, &c., according to the old law, though no writ of execution has been issued, see Evans v. Williams, 2 Dr. & Sm. 324 ; and as regards the debtor himself, and volun- teers under him, the old law was in force until 27 & 28 Vict. o. 112, which is general in its provisions.] Mode of [By section 2 the registry of any writ of execution, or other due process on any registering. judgment, in order to bind » purchaser or mortgagee, was to be made by a me- morandum or minute referring to the judgment already registered, so as to connect the registry of the writ, of execution or other process therewith ; and the senior master of the Court of Common Pleas at Westminster was to enter the particulars in a book in alphabetical order by the name of the person in whose behalf the judg- Double search ment was registered. The registry of the writ of execution is now to be made in necessary. the name of the debtor by 27 & 28 Vict. c. 112, s. 3, post^ Protection of [Section 3, reciting 4 & 5 W. & M. o. 20 (since repealed), and other Acts as to executors the registration of judgments, provided that no judgment which had not already against been, or which should not thereafter be entered or docketed so as to bind lands, unregistered tenements, or hereditaments as against purchasers, mortgagees, or creditors, should judgments. have any preference against heirs, executors, or administrators in their administra- tion of their ancestors', testators', or intestates' estates. See as to this section, VoM Gheluive v. Nerinckx, 21 Ch. D. 189 ; Me Williams, 15 Eq. 270 ; Jennings v. Jtigb}/, 33 Beav. 198. The section applies to judgments signed before the Act (Kemp v. Waddmgham, L. R. 1 Q. B. 355) ; and to County Court judgments XMc Turner, 12 W. R. 337 ; 33 L. J. Ch. 232).] [Section 4 provided that judgments, in order to have preference in administra- tion, must be re-registered every five years according to the Acts of 1 & 2 Vict., 2 & 3 Vict., and 18 & 19 Vict.] [Section 6 defined judgments as they are now defined by the latest judgment Act, 27 & 28 Vict. u. 112, s. 2, post.-] [Section 6 amended the law of waiver as between lessor and lessee, see p. 99, ante.'] [Section 7 relates to the law of uses, and the doctrine of scintilla juris, as to which see Sandars on Uses, pp. 112, 152.] [Section 8 corrected a clerical error iu sect. 24 of 22 & 23 Vict. o. 35, p. 100, ante.] [Section 9 provides that when trustees apply for the opinion, advice, or direction of a judge, under section 30 of 22 & 23 Vict. c. 35, the petition or statement should be signed by counsel, see p. 102, ante.] Power to Lord X. It stall te lawful for the Lord Chancellor, Lord Keeper, or Lords &o™rEn™^ Commissioners for the custody of the Great Seal of England, with the LAW OP PEOPERTY FURTHER AMENDMENT ACT. 105 advice and assistance of the Master of the Eolls, the Lords Justices of 23 & 24 Viot. the Court of Appeal in Chancery, and the Vice-Chancellors of the said °- ^^' °- ^°- Court, or any three of them, and for the Lord Chancellor of Lreland, land and with the advice and assistance of the Lords Justices of Appeal and the makTgeneral Master of the Eolls in Ireland, to make such general orders from time orders as to to time as to the investment of cash under the control of the Court, STash under either in the Three per Cent. Consolidated or Eeduced or New Bank tlie control of Annuities, or in such other stocks, funds, or securities as he or they * ® °^^' shall, with such advice or assistance, see iit ; and it shall he lawful for the Lord Chancellor, Lord Keeper, or Lords Commissioners in England, and for the Lord Chancellor in L-eland, to make such orders as he or they shall deem proper for the conversion of any Three per Cent. Bank Annuities now standing or which may hereafter stand in the name of the Accountant-General of the said Court of Chancery, in trust in any cause or matter, into any such other stocks, funds, or se- curities upon which, by any such general order as aforesaid, cash under the control of the Court may be invested ; all orders for such conversion of Bank Annuities into other funds or securities to be made upon petition to be presented by any of the parties interested in a summary way, and such parties shall be served with notice thereof as the Court shall direct (s). (a) See Ord. XXII. r. 18, and note thereto, infra. XI. "When any such general order as aforesaid shall have been made Powers of it shaU be lawful for trustees, executors, or administrators having i^gt^intlie power to invest their trust funds upon Government securities, or upon stocks in Parliamentary stocks, funds, or securities, or any of them, to invest ^^erthe such trust funds, or any part thereof, in any of the stocks, funds, or control of the securities in or upon which by such general order cash under the jn'^te™^^ * control of the Court may from time to time be invested (b). (b) This section applies notwithstanding a prohibition clause in the instrument {Re Wedderburn, 9 Ch. D. 112). See also the following enactments as to investments by trustees : Investments 22 & 23 Viot. 0. 35, s. 32, made retrospective by sect. 12 of the Act in the text, ■. trustees infra (but not so as to interfere with rights already accrued, Hume v. Richardson, 10 fM fc 03 Vict "W. B. 528 ; 4 DeG-.E. & J. 29), provides that when a trustee, executor, or admlnis- ^ ggv trator "shall not, by some instruments creating his trust, be expressly forbidden ' '' " to invest any trust fund on real securities in any part of the United Kingdom, or " on the stock of the Bank of England or Ireland, or on East India Stock, it shall " be lawful for such trustee, executor, or administrator to invest such trust fund on ' ' such securities or stock ; and he shall not be liable on that account as for a breach " of trust, provided that such investment shaU in other respects be reasonable and "proper." It has been held that this section does not apply where a particular fund is settled and there is no power to vary investments {Se Warde, 2 J. & H. 191) ; but see Waite v. Zittlewood, 41 L. J. Ch. 636 ; Ee Clergy Corporation, 18 Eq. 280. 30 & 31 Vict. c. 132, s. 1, provides that " the words ' East India Stock' in the 30 & 31 Viot. " said Act (22 & 23 Viot. c. 35) shall include and express as well the East India 0. 132, s. 1. " Stock which existed previously to the 13th August, 1859, when the said Act re- > " India, and created under and by virtue of any Act or Acts of Parliament which " received her Majesty's assent on or after the 13th Augpist, 1859 ; and it shall be " lawful for every trustee, executor, or administrator to invest any trust fund in his " possession or under his control in the stock created by the last-mentioned Act or " Acts to the same extent, and for the game purposes and objects, as he can now 106 LAW OP PROPERTY FURTHER AMENDMENT ACT. 23 & 24 Viot. 0. 38, s. 11. Sect. 2. Right to property of - intestate barred after twenty years.^ Act not to extend to Scotland, &c. " invest such trust fund in the East- India Stock, which existed previously to the " 13th August, 1859." Railway Stock, with a charge on the revenues of India, is not within this Act (Green v. Angell, W. N. (1867), 305). 30 & 31 Vict. 0. 13U, B. 2, provides that "it shall he lawful for every trustee, " executor, or administrator to invest any trust fund in his possession, or under his " control, in any securities the interest of which is or shall be guaranteed by par- "liament to the same extent and in the same manner as he may invest such trust " fund in such securities as aforesaid." See also 33 & 34 Vict. c. 34, as to investment of charity funds on real security ; 34 Viet. c. 27, authorizing trustees having power to invest in mortgages or bonds of a company, to invest in the debenture stock of such company ; 34 & 36 Vict. c. 47, as to investment in Metropolitan Consolidated Stock ; and the Local Loans Act, 1875, as to investment by trustees in debentures or debenture stock issued under that Act. [Section 12 made 22 & 23 Vict. o. 35, s. 32, retrospective. See note [b), supra."] [Section 13 recites 3 & 4 WiU.. 4, e. 27, s. 40, which provides that money charged on land and legacies are to be deemed satisfied at the end of twenty years, if there shall be no interest paid or acknowledgment in writing in the meanwhile, and extends that enactment to the case of claims to the estates of persons dying in- testate. See now 37 & 38 Vict. c. S7.] [Section 14 is repealed by Statute Law Revision and Civil Procedure Act, 1883.] XV. This Act is not to extend to Scotland, nor are any of the clauses, except clause six and the subsequent clauses, to extend to Ireland. 37 & 38 Vict, c. 78. Sales by jtrustees. VENDOE AND PUECHASER ACT, 1874. 37 & 38 VICT. Cap. 78. An Act to amend the Law of Vendor and Purchaser, and further to simplify Title to Land. '[7th August, 1874.] "Whereas it is expedient to facilitate the transfer of land by means of certain amendments in the law of vendor and purchaser : Be it enacted, &c., as follows : [By sect. 1, in the completion of any contract of sale of land made after Deo. 31, 1874, forty years is substituted for sixty years as the root of title.] [By sect. 2— Eirst. Under a contract to grant or assign a term of years, the lessee or assign shall not be entitled to call for the title to the freehold. See Fatman V. Sarlmd, 17 Ch. D. 353. Second. Recitals, &c., contained in instruments, twenty years old at the date of the contract, shatU, unless and except so far as they shall be proved to be inaccurate, be sufficient evidence. See Bolton v. tondon School Board. 7 Ch. D. 766. _ ' Third. The inabiKty of .the vendor to furnish a legal covenant to produce and furnish copies of documents of title shall not be an objection to title in case the purchaser wOl have an equitable right to the production. Eourth. Covenants for production shall be furnished at the purchaser's expense, and the vendor shaU bear the expense of perusal and execution on behalf of and by himself. Eifth. "Where the vendor retains any part of an estate to which any docu- ments of title relate he shaU be entitled to retain such documents.] m. Trustees who are either vendors or purchasers may sell or buy without excluding the application of the second section of this Act. VENDOR AND PURCHASER ACT, 1874. 107 IV. The legal personal representative of a mortgagee of a freehold 37 & 38 Viot. estate, or of a copyhold estate to which the mortgagee shall have been "■ '^i «■ ^•.. admitted, may, on payment of all sums secured hy the mortgage, convey or Legal per- surrender the mortgaged estate, whether the mortgage he in form an sentative'^may assurance subject to redemption, or an assurance upon trust {a). convey legal 6StS>t>6 01 (a) This section has heen repealed in oases of death after Deo. 31st, 1881, by the mortgaged Conveyancing Act, 1881, s. 30 (2), post, p. 117. It did not apply to a transfer of property, a mortgage [Me Spradbei-y, 14 Ch. D. 514 ; Re Brook, 26 W. R. 841), or to a sale under a povrer in the mortgage (ije White, W. N. (1881), ] 15 ; 29 W. R. 820). V. Upon the death of a hare trustee of any corporeal or incorporeal Bare legal hereditament of which such trustee was seised in fee simple, such heredita- gimple to vest ment shall vest like a chattel real in the legal personal representative from in executor or time to time of such trustee (b). aomimstrator. (8) Sect. 48 of the Land Transfer Act, 1875, provided as follows : — " Section five 33 & 39 Vict, of the Vendor and Purchaser Act, 1874, shall be repealed on and after the commence- „. §7 g. 4,8. ment [1st January, 1876]-of tius Act, except as to anything duly done thereunder ' ' " ' before the commencement of this Act ; and, instead thereof, be it enacted that upon the death of a bare trustee intestate as to any corporeal or incorporeal hereditament of which such trustee was seised in fee simple, such hereditament shall vest like a chattel real in the legal personal representative from time to time of such trustee ; but the enactment by this section substituted for the aforesaid section of ' The Vendor and Purchaser Act, 1874,' shall not apply to lands registered under this Act." This section of the Land Transfer Act has been itself repealed, in cases of death after 3lBt Dec. 1881, by the Conveyancing Act, 1881, s. 30 (2), post, p. 117. As to Ireland, see sect. 73 of the Conveyancing Act, 1881. For tie meaningof "bare trustee," see Christies. Ovington, 1 Ch. D. 279^ Morgan " Bare Y. Swansea Sanitary Authority/, 9 Ch.D. 682. ' trustee." YI. "When any freehold or copyhold hereditament shall be vested in Married a married ■woman as a bare trustee (c) she may convey or surrender yoman '^T^o the same as if she were a feme sole. trustee may (c) As to the meaning of "bare trustee," see note (J) to sect. 5. See now as to ^' married women, the Married Women's Property Act, 1882, infra. [The 7th section, by which protection and priority by legal estates and tacking Tacking, was not to be allowed after the commencement of the Act, was repealed by sect. 129 of the Land Transfer Act, 1875, except as to anything duly done thereunder before 1st January, 1876 ; see Eobinson v. Trevor, 12 Q. B. D. 432. But see now as to lands in Yorkshire, the Torkshire Registries Act, 1884, s. 16.] [By sect. 8'the non-registration of a wiU in Middlesex or Yorkshire is cured if an Non-regis- assurance to a purchaser by the devisee or by some one deriving title under him, is tration in registered before an assurance from the testator's heir-at-law. See now as to York- Middlesex or shire, the Yorkshire Registries Act, 1884.] Yorkshire. IX. A vendor or purchaser of real or leasehold estate in England, or Vendor or their representatives respectively, may at any time or times and from ^f'jjt^ta^ time to time apply in a summary way to a judge of the Court of decision of Chancery in England in chambers, in respect of any requisitions or j^^mbras as objections, or any claim for compensation, or any other question to requisitions arisine out of or connected with the contract (not being a question °^ objections, ^ - , . _ _ ,, or compensa- afEecting the existence or validity of the contract), and the judge shall tion, &c. make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid (d). Id) The Act was not intended to enable the Court to decide disputed questions of 108 VENDOE AND PUEOHASER ACT, 1874. 37 & 38 Vict. c. 78, s. 9. Applications under s. 9. Order a bar to action for specific per- formance. Appeal. Costs. Extent of Act. fact {Se FoppU and Barratt, 25 W. E. 248 ; Re Burroughs, 5 Ch. D. 601) ; but evidence is admissible as on a reference as to title under a judgment where the - contract had been established (JBe Burroughs) ; and it is convenient and not unusual for a concise written statement of the circumstances of the case to be agreed upon, which is signed by the solicitors, and a copy left at the Chambers, either before or upon the return of the summons (DanieU, 1382). Where a witness refused to make an afBdavit, his evidence was directed to be taken before a special examiner {fie Springall, W. N. (1875), 225). Applications have been made to the Court under the Act in a great variety of cases which will be found coUeeted in Daniell, p. 1382 et seq. Eor instances of applications see Re Coward, 20 Eq. 179 ; Re Ford and Hill, 10 Ch. D. 365 ; Oshome to Rowlett, 13 Ch. D. 774 ; Re Tanqueray- Willaume, 20 Ch. D. 465 ; Royal Society and Thompson, 17 Ch. D. 407 ; Whiting to Loomes, 14 Ch. D. 822 ; 17 Ch. D. 10 ; Re Leohmere and Lloyd, 18 Ch. D. 524 ; Re Brown and Sibly, 3 Ch. D. 156 ; Re Cooper and Allen, 4 Ch. D. 802 ; Re Sail Bare, 21 Ch. D. 41 ; Re Foster and Lister, 6 Ch. D. 87 ; Re Figott and G. W. Ry., 18 Ch. D. 146. The Act does not apply in cases of voluntary grants, but a nominal consideration is sufficient as a foundation for proceedings under it {Re Marquis of Salisbury, 23 W. E. 824). The summons may by leave be served out of the jurisdiction {Drapers' Co. v. McCann, 1 Ij. E. Ir. 13). An action for specific performance cannot be brought after an order has been made under the Act disposing of the matters in dispute {Thompson v. Ringer, W. N. (1881), 48 ; 29 W. E. 620). The time within which an appeal can be brought from an order under the section is twenty-one days {Re Blyth and Young, 13 Ch. D. 416). The general rule is, that the purchaser must pay the costs if he fails on a vendor's summons caused by an objection to the title {Osborne to Rowlett, 13 Ch. D. 774 ; 28 W. E. 365 ; Re WaddeWs Contract, 2 Ch. D. 172 ; Re Cooke's Contract, 4 Ch. D. 454). Where, however, thei purchaser failed on an objection as to incumbrances, but the case was a proper one to be brought before the Court, each party had to pay his own costs of a vendor's summons {Finch-^. Jukes, W. N. (1877), 211 ; and see Re Coward, 20 Eq. 179; 23 W. K. 605). So, where' the difficulty had arisen entirely from conflicting decisions no costs were given {Osborne to Rowlett) ; and so, where there was a fair point for discussion {Re Metrop. Ry. Co. and Cosh, 13 Ch. D. 613). If the vendor is in the wrong his gummons will be dismissed with costs {Re Pack- man and Moss, 1 Ch. D. 214 ; 24 W. E. 170 ; and see Re Siggins, 21 Ch. D. 99 ; Re mil, W. N. (1884), 15). Where the purchaser makes an improper requisition and takes out a summons for an order on the vendors to answer it, the summons should be dismissed with costs {Re Ford and Hill, 10 Ch. D. 365, where on appeal the order below was reversed, and the vendors got the costs of the appeal, but apparently paid the costs below). A vendor or purchaser of real or leaseliold estate in Ireland, or their representatives respectively, may in like manner and for the same pur- pose apply to a judge of the Court of Chancery in Ireland, and the judge shaU make such order upon the application as to him shall appear just, and shall order how and hy whom all or any of the costs of and incident to the application shall be borne and paid. X. This Act shall not apply to Scotland, and may be cited as the Vendor and Purchaser Act, 1874. CONVEYANCtNG AKD LAW OF PROPEUTT? ACT, 1881. 109 CONYEYANCINa AND LAW OP PROPEETY ACT, 1881. 44&45Viot. 0.41. 44&45VICT. Cap. 41. An Act for simplifying and improving the practice of Conveyancing ; and for vesting in Trustees, Mortgagees, and others various powers commonly conferred by provisions inserted in Settlements, Mortgages, Wills, and other Instruments ; and for amending in various particulars the Law of Property ; and for other pur- poses. [22nd August, 1881.J Be it enacted, &c. as follows : I. — PnELIMIlfAEY. 1. — (1) This Act maybe cited as tlie Conveyancing and Law of Short title; Property Act, 1881. ■ ^ (2) This Act shall commence and take effect from and immediately oonunenoe- af ter the thirty-first day of December, one thousand eight hundred and ™™* ' eighty-one. (3) This Act does not extend to Scotland. extent. 2. In this Act— (i.) Property, unless a contrary intention appears, includes real and Interpretation personal property, and any estate or interest ia any property real or ?* F^operty, personal, and any debt, and any thiag in action, and any other right or interest : (ii.) Land, unless a contrary intention appears, includes land of any tenure, and tenements and hereditaments, corporeal or incorporeal, and houses and other bxuldings, also an undivided share in land : (iii.) In relation to land, income includes rents and profits, and pos- session includes receipt of income : (iv.) Manor includes lordship, and reputed manor or lordship : (v.) Conveyance, unless a contrary intention appears, includes assignment, appointment, lease, settlement, and other assurance, and covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property; and convey, ujiless a contrary intention appears, has a meaning corresponding with that of conveyance : (vi.) Mortgage includes any charge on any property for securing money or money's worth ; and mortgage money means money, or money's worth, secured by a mortgage ; and mortgagor includes any person from time to time deriving title under the original mortgagor, or entitled to redeem a mortgage, according to his estate, interest, or right, in the mortgaged property ; and mortgagee includes any person from time to time deriving title under the original mortgagee ; and mortgagee in possession is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property : 110 CONVEYANCINa AND LAW OF PROPERTY ACT, 1881. 44 & 45 Vict. (vii.) Incumbrance includes a mortgage in fee, or for a less estate, c 41 s 2 ^j *j — '■ — ' and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum ; and incumbrancer has' a meaning corresponding with that of incumbrance, and includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof : (viii.) Purchaser, unless a contrary intention appears, includes a lessee or mortgagee, and an intending purchaser, lessee, or mortgagee, or other person, -who, for valuable consideration, takes or deals for any property ; and purchase, unless a contrary intention appears, has a meaning corresponding with that of purchaser ; but sale means only a sale properly so called : (ix.) Rent includes yearly or other rent, toU, duty, royalty, or other reservation, by the acre, the ton, or otherwise ; and fine includes pre- mium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift : (x.) Building purposes include the erecting and the improving of, and the adding to, and the repairing of buildings ; and a building lease is a lease for building purposes or purposes connected therewith : (xi.) A mining lease is a lease for mining purposes, that is, the searching for, winning, working, getting, making merchantable, carry- ing away, or disposing of mines and minerals, or purposes connected therewith, and includes a grant or licence for mining purposes : (xii.) WUl iaeludes codicil : (xiii.) Instrument includes deed, will, inclosure award, and Act of Parliament : (xiv.) Securities include stocks, funds, and shares : (xv.) Bankruptcy includes liquidation by arrangement, and any other act or proceeding in law having, under any Act for the time being in force, effects or results similar to those of bankruptcy ; and bankrupt has a meaning corresponding with that of bankruptcy : (xvi.) "Writing includes print ; and words referring to any instru- ment, copy, extract, abstract, or other document include any such in- strument, copy, extract, abstract, or other document being in writing or in print, or partly in writing and partly in print : (xvii.) Person includes a corporation : (xviii.) Her Majesty's High Court of Justice is referred to as the Court. n. — Sales and otkee Transactions. Contracts for Sale. [Sect. 3 provides that on sales made after the commeuoement of the Act certain stipulations commonly inserted in conditions of sale shall be implied, unless a con- trary intention is expressed in the contract. See sect. 2 of the Vendor and Pur- chaser Act, 1874, ante, p. 106 ; and see also Se Johnson, 28 Ch. D. 84.] of°TOntr*^rt *'~(^) Where at the death of any person there is subsisting a after death, contract enforceable against his heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs general, in any land, his personal representatives shall, by virtue of this Act, CONVEYANCING AND LAW OP PROPEETY ACT, 1881. HI L.ave power to convey tlie land for all the estate and interest vested in 44 & 45 Viot. lum at his death, in any manner proper for giving effect to the con- "• ^^> ^- ^' tract. (2) A conveyance made under this section shall not affect the beneficial rights of any person claiming under any testamentary dis- position or as heir or next of kin of a testator or intestate. (3) This section applies only in cases of death after the commence- ment of this Act. Discharge of Incumbrances on Sale. 5. — (1) "Where land subject to any incumbrance, whether imme- ProTisionby diately payable or not, is sold by the Court, or out of Court, the Court ci^branoes'" may, if it thinks fit, on the application of any party to the sale, direct and sale freed or allow payment into Court, in case of an annual sum charged on the ®^® '^*'™' land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in Government securities, the Court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to m.eet the incumbrance and any interest due thereon ; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reason thinks fit to require a larger additional amount. (2) Thereupon, the Court may, if it thinks fit, and either after or ■without any notice to the incumbrancer, as the Court thinks fit, declare the land to be freed from the inciunbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court. (3) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or __ distribution of the capital or income thereof. (4) This section applies to sales not completed at the commencement of this Act, and to sales thereafter made (a). (a) An order tinder this section for the sale of land free from an inonmbranoe, Form of the iuoxmibranoer not being a party to the action, should follow the Trords of the order. Act, and after directing payment into Court of the purchase-money, and setting aside of an amount sufficient to meet the incumbrance, proceed to declare that thereupon any person should be at liberty to apply in chambers for a declaration that the laud is free from the incumbrance {Dic/cin v. Dickin, W. N. (1882), 113 ; 30 W. B. 887). See also Patching v. Bull, 30 W. E. 244. The Court -vrill not compel a vendor to pay money into Court for the purpose of discharging an incum- brance when the result would be to inflict a great hardship on him [Be Great Northern My., 2S Ch. D. 788 ; 32 W. E. 519). [Sect. 6 provides that general words shall be implied in conveyances of land, Greneral buildings and manors.] words. 112 CONVETANCINa AND LAW. OP PBOPERTT ACT, 1881. 44 & 46 Viot. [Sect. 7 provides that covenants for title shall be implied in assurances where c. 41, s. 7. the conveyance is expressed to be made in one or other of the characters mentioned in the section.] Covenants *°^ *'*^^- Execution of Purchase Deed. Eights of 8. — (1) On a sale, the purchaser shall not be entitled to require to execution. ^^^^ t^^ conveyance to him be executed in his presence, or in that of his solicitor, as such ; but shall be entitled to have, at his own cost, the execution of the conveyance attested by some person appointed by him, who may, if he thinks fit, be his solicitor (5). (2) This section applies only to sales made after the commencement of this Act. (J) See note (s) to sect. 56, infra, p. 123. Production and Safe Custody of Title Deeds. Acknowledg- [By sect. 9 (1 — 6), an acknowledgment of the right to production and to delivery ment of right of copies of documents has the effect of and is substituted for the old covenant for to production, produotiou.] and under- ou8todv°of^^ ^ ( '^■) ^^y person claiming to be entitled to the benefit of an acknow- doouments. lodgment may apply to the Court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of or extracts from those documents or any of them to him, or some person on his behalf ; and the Court may, if it thinks fit, order production, or production and delivery, accordingly, and may give directions respecting the time, place, terms, and mode of pro- duction or delivery, and may make such order as it thinks fit respect- ing the costs of the application, or any other matter connected with the application. (8.) An acknowledgment shall by virtue of this Act satisfy any liability to give a covenant for production and delivery of copies of or extracts from documents. [By sub-sects. 9 and 11, an undertaking for safe custody of documents satisfies any liability for safe custody of documents.] (10.) Any person claiming to be entitled to the benefit of such an undertaking may apply to the Court to assess damages for any loss, destruction of, or injury to the documents or any of them, and the Court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application. (12.) The rights conferred by an acknowledgment or an under- taking under this section shall be in addition to aU such other rights relative to the production, or inspection, or the obtaining of copies of documents as are not, by virtue of this Act, satisfied by the giving of the acknowledgment or undertaking, and shall have effect subject to the terms of the acknowledgment or undertaking, and to any pro- visions therein contained. CONVETANCnSTG AND LAW OF PROPERTY ACT, 1881. 113 (13.) This section applies only if and as far as a contrary intention n & 45 Viot. is not expressed in the acknowledgment or undertaking. "• ^^' °- ^ (14.) This section applies only to an acknowledgment or undertaking given, .or a liability respecting documents incurred,, after the com- mencement of this Act. III. — Leases. [Sect. 10 provides that rent and the benefit of the lessee's covenants shall run Leases. with the reversion.] [Sect. 11 provides that the obligation of the lessor's covenants shall run with the reversion.] [Sect. 12 provides for the apportionment of conditions on severance, &c.] [Sect. 13 provides, that on a snb-demise the title to the leasehold reversion shall not be required.] Forfeiture. 14. — (1.) A right of re-entry or forfeiture under any proviso or Restrictions stipulation in a lease, for a breach of any covenant or condition in the °'^ and relief ■*■ . „ . aprainst f or- lease, shall not be enforceable, by action or otherwise, unless and feiture of until the lessor serves on the lessee a notice specifying the particular leases. breach complained of and, if the breach is capable of remedy, re- quiring the lessee to remedy the breach, and, in any ease, requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach (c). (c) See Ex parte Gould, "W. N. (1884), 154 ; Scott v. Matthew Brown f Co., W. N. (1884), 209. (2.) Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, apply to the Court for relief ; and the Court may grant or refuse relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to aU. the other circumstances, thinks fit ; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit (d). (d) This sub-section is not confined to breaches taking place after the Act, but extends to breaches committed before the Act, and to proceedings pending when it came into operation (Quilter v. Mapleaon, 9 Q. B. D. 672 ;.52 L. 3. Q.B. 44; 31 W. R. 75 ; 47 L. T. 561). For a case in which, under special circumstances, and ■where no proper notice had been given, equitable mortgagees of a lessee were relieved from a forfeiture, see North London Co. v. Jacques, W. N. (1883), 187 ; Jaoqitea v. Barrison, 12 Q. B. D. 136. Where the forfeiture had been incurred through breach of a covenant to repair, relief was granted on the terms of the defendant executing proper repairs and paying arrears of rent and costs {Bond v. Freke W. N. (1884), 47). Where the right of renewing a lease for Uves had been lost by non-payment of renewal fees, though demanded by the reversioners, the Court refused to relieve (Ruttledge v. Whelm, 10 L. R. Ir. 263) ; and see Scott v. Matthew Broun ^ Co., W. N. (1884), 209. nr I 114 CONTEYANCINa AND LAW OP PROPERTY ACT, 1881. 44 & 45 Viotj (3.) Por the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition ; and a lessee includes an original or derivative under-lessee, and the heirs, executors, administrators, and assigns of a lessee, also a grantee under such, a grant as aforesaid, his heirs and assigns ; and a lessor includes an original or derivative under-lessor, and the heirs, executors, administrators, and assigns of a lessor, also a grantor as aforesaid, and his heirs and assigns. (4.) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act of Parliament. (5.) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach. (6.) This section does not extend — (i.) To a covenant or condition against the assigning, under-letting, parting with the possession, or disposing of the land leased ; or to a condition for forfeiture on the bantruptcy of the lessee, or on the taking in execution of the lessee's interest ; or (ii.) In case of a mining lease, to a covenant or condition for allow- ing the lessor to have access to or inspect books, accounts, records, weighing, machines or other things, or to enter or inspect the mine or the workings thereof. (7.) The enactments described in Part I. of the Second Schedule to this Act are hereby repealed. (8.) This section shall not affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent. (9.) This section applies to leases made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary. IV. — ^MoETaAGES. Obligation on 16, — (1.) Where a mortgagor is entitled to redeem, he shall, by toansfe^S- ° virtue of this Act, have power to require the mortgagee, instead of stead of re- re-conveying, and on the terms on which he would be bound to conveying. re-convey, to assign the mortgage debt and convey the mortgaged property to any third • person, as the mortgagor directs ; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly (e). («) See now Conveyancing Act, 1882, s. 12, infra, and note thereto. A tenant for life of mortgaged premises, who has failed to keep down the interest, and who has obtained the usual order permitting him to redeem, is not entitled as of right to require the mortgagee to transfer to a third person {Alderaon v. Elgey, 26 Ch. D. 567). (2.) This section does not apply in the case of a mortgagee being or having been in possession. CONVEYANCING AND LAW OP PROPERTY ACT, 1881.' 115 (3.) This section applies to mortgages made either before or after 44 & 45 Viot. the commencement of this Act, and shall have effect notwithstanding °- '^^' ^- ^°- any stipulation to the contrary. [Sect. 16 empowers the mortgagor to inspect tie title deeds.] l'- — (!•) A mortgagor seeking to redeem any one mortgage, shall, Restriction by virtue of this Act, be entitled to do so, without paying any money tSn oTmort- due under any separate mortgage made by him, or by any person gages, through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem (/). _ (2.) This section applies only if and as far as a contrary intention is not expressed in the mortgage deeds or one of them. (3.) This section applies only where the mortgages or one of them are or is made after the commencement of this Act. {/) In an action to foreclose two mortgages the mortgagor cannot redeem either estate without paying the whaie costs of the action (Clapham v. Andrews, 27 Ch. D. 679). The recent tendency of the Courts (a^art from this Act) has been to restrict the doctrine of consoUdatiou ; see Jennings v. Jordan, 6 App. Cas. 698 ; Barter v. Colman, 19 Ch. D. 630 ; Ee Raggett, 16 Ch. D. 117 ; Cummins v. Fletcher, U Ch. D. 699. [Sect. 18 gives power to the person in possession, whether mortgagor or mort- gagee, to make leases ; see £e Nugent, W. N. (1883), 147.] [Sect. 19 provides that a mortgagee, where the mortgage is made by deed, shall have power (i) to seU ; (ii) to insure ; (iii) to appoint a receiver (see Tillett v. Nixon, 25 Ch. D. 238; Bayly v. Went, W. N. (1884), 197); (iv) if in possession, to cut and sell timber.] [Sect. 20 provides that the power of sale shall not be exercised unless (i) Notice has been given to pay off the principal, and default has been made for three months ; or (ii) interest is two months in arrear ; or (iii) there has been a breach of some provision in the mortgage other than the covenants for payment of principal and interest.] [Sect. 21 relates to conveyance, &c. on an exercise of the power of sale, and prescribes the application of the purchase-money.] [Sect. 22 empowers the mortgagee to give receipts.] [Sect. 23 relates to the amount and application of the insurance money.] [Sect. 24 deals vrith the appointment, powers, remuneration, and duties of the receiver, who is to be deemed the agent of the mortgagor. Where an action is pending the receiver should be appointed by the Court rather than by the mortgagee imder the Act (IMlett v. Nixon, 25 Ch. D. 238). If the mortgagee has appointed a receiver the mortgagor will not be allowed to distrain for rent due from the tenants {Bayly v. Went, W. N. (1884), 197).] Action respecting Mortgage. 25. — (1.) Any person entitled to redeem mortgaged property may Saleofmort- have a judgment or order for sale instead of for redemption in an |g^y^i^aotion action brought by him either for redemption alone, or for sale alone, for fore- or for sale or redemption in the alternative. closure, &o. (2.) In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, not- withstanding the dissent of any other person, and notwithstanding i2 116 CONVETANCING AND LAW OP PROPERTY ACT, 1881. 44 & 45 Vict, c. 41, 8. 25. 15 & 16 Viot. c. 86, s. 48. Order for Devolution of trust and mortgage that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for pa3mient of any mortgage money, may, if it thinks fit, direct a sale of the mort- gaged property, on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonahle sum fixed by the Court, to meet the expenses of sale and to secure performance of the terms. (3.) But, in an action brought by a person interested in the right of redemption and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them. (4.) In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of incum- brancers. (5.) This section applies to actions brought either before or after the commencement of this Act (g). (6.) The enactment described in Part U. of the second schedule to this Act is hereby repealed. (7.) This section does not extend to Ireland. (ff) The Court has power at any time before foreclosure absolute to order a sale {Union £mk v. Ingram, 20 Oh. D. 463 ; 51 L. J. Ch. 508 ; 30 W. R. 375 ; 46 L. T. 507 ; Weston v. Davidson, W. N. (1882), 28 ; South Western Sank y. Turner, 31 W. R. 113). As to the form of order where the mortgagor has not appeared, see Wade v. WiUm, 22 Ch. D. 236 ; 52 L. J. Ch. 399 ; 31 W. R. 237 ; 47 L. T. 696 ; 8outh\ .Western Bank v. Tv/rner. Although a sale may be directed in a foreclosure action •without the plaintifi's consent, even where the mortgaged property is only an equity of redemption, and there are prior mortgagees not parties, a sale will not be directed at the request of a defendant who will not give security {Cripps v. Wood, 51 L. J. Ch. 684). Where the application for a sale was made by the defendant, the mortgagor, after the time appointed for the payment of the mortgage money, the Court directed that on the defendant paying within one month into Court the sum of 1501. as a deposit to meet the expenses of sale, and also paying the plaintiff's costs of the application, there should be a sale of the property, but otherwise a foreclosure ( Weston v. David- son, W. N. (1882), 28). Where there were several mortgages a sale was directed, in a redemption action, upon the application, soon after the issue of the writ of summons, of the plaintiff who was the owner of the equity of redemption ; but it was held that a reserved price large enough to cover what was due to mortgagees who opposed the sale must be fixed, and that the plaintiff must give security for the costs of the sale, the conduct of which was given to him, and which was directed to take place out of Court, the proceeds of sale being directed to be brought into Court {Woolky V. Colman, 21 Ch. D. 169). A tenant in common who has mortgaged his share to another tenant in common cannot enforce a partition or sale of the whole property against the will of the mortgagee without paying off the mortgage (Gibis V. Sai/don, 30 W. R. 726). An equitable mortgagee by deposit may have a sale though tiiere is no me- morandum of deposit and no agreement to execute a legal mortgage (Oldham v. Stringer, W. N. (1884), 235). V. — •STATrrORT MOBTGAGB. [Sects. 26 — 29 provide for forms of statutory mortgages, transfers and recon- veyances.] "VI. — Trust aitd Mortgage Estates on Death. 30.— (1.) Where an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 117 or incorporeal, is vested on any trust, or hj way of mortgage, in any 44 & 45 Viot. person solely, tke same stall, on his death, notwithstanding any testa- °- *^' ^- ^^- mentary disposition, devolve to and hecome vested in his personal estates on representatives or representative from time to time, in like manner as '^^^™- if the same were a chattel real vesting in them or him ; and accord- ingly all the like powers, for one only of several joint personal repre- sentatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities, and obligations, as if the same were a chattel real vesting in them or him ; and, for the purposes of this section, the personal representatives, for the time being, of the deceased, shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers (A). (2.) Section four of thg Vendor and Purchaser Act, 1874, and section 37 & 38 Viot. forty-eight of the Land Transfer Act, 1875, are hereby repealed («'). ' , ' „. , (3.) This section, including the repeals therein, applies only in cases c. 87. of- death after the commencement of this Act. (A) The section applies to copyholds {Be Sughes, W. N. (1884), 53). Qu. What becomes of the legal estate when there is no personal representative P See £e Tilling, 26 Oh. D. 432. (i) See these sections, ante, p. 107. VII. — TaUSTEES AND ExECUTOES. 31. — (1.) Where a trustee, either original or substituted, and Appointment whether appointed by a Court or otherwise, is dead, or remains out trustees, of the United Kingdom for more than twelve months, or desires to be vesting of discharged from the trusts or powers reposed in or conferred on him, perty, &c. or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for this purpose by the instru- ment, if any, creating the trust {k), or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee {I), may, by writing, appoiiit another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing or being unfit, or being incapable, as afore- said (m). (A) See Se Vallcer, 24 Ch. D. 698. (l) The representative of a deceased trustee is not bound, at the request of the cestui que trust, to exercise the power {Re Sarah Knight, 26 Ch. D. 82). (m) Where the power given by this section can be exercised, application ought not to be made to the Court (iJe Gibbon, W. N. (1882), 12; 30 W. R. 287). (2.) On an appointment of a new trustee, the number of trustees may be increased. (3.) On an appointment of a new trustee, it shall not be obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original number of trustees. L18 COKVETANOING- AND LAW OP PROPERTY ACT, 1881. 'A & 45 Viot. where more than two trustees were originally appointed ; but, except c. 41, B. 31. -ppiiere only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there wiU be at least two trustees to perform the trust. (4.) On an appointment of a new trustee any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done. (5.) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in aU respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust. (6.) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator (U) ; and those relative to a continuing trustee in- clude a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (7.) This section applies only if and as far as a contrary inten- tion (mm) is not expressed in the instrument, if any, creating the trust, and shaU have effect subject to the terms of that instrument and to any provisions therein contained. (8.) This section applies to trusts created either before or after the commencement of this Act. {U) If all the trustees predecease the testator, then (in the absence of an express power) recourse must be had to the Court (Se Orde, 24 Ch. D. 271 ; Ee Lightbody, W. N. (1885), 3). [mm) See Gecil v. Lcmgdon, 28 Ch. D. 1. Retirement 32. — (1.) Where there are more than two trustees, if one of them by )f trustee. deed declares that he is desirous of being discharged from the trust, and if his co-trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, then the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place. (2.) Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done. (3.) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provi- sions therein contained. (4.) This section applies to trusts created either before or after the commencement of this Act. Powers of new 33- — (1-) Every trustee appointed by the Court of Chancery, or by "^^t^d^' *^® Chancery Division of the Court, or by any other Court of competent 3ourt. jurisdiction, shall, as well before as after the trust property becomes by law, or by assurance, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all respects act as if CONVEYANCINa AND LAW OF PBOPERTY ACT, 1881. 119 lie had been originally appointed a trustee by the instrument, if any, 44 & 46 Vict, creating the trust. °- ^^> °- ^^- (2.) This section applies to appointments made either before or after the commencement of this Act. 34. — (1.) Where a deed by which a new trustee is appointed to Vesting of perform any trust contains a declaration by the appointor to the effect i^^^ew^r ^"^ ^ that any estate or interest in any land subject to the trust, or in any continmng chattel so subject, or the right to recover and receive any debt or other *™^*^^^' thing in action so subject, shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest, or right. (2.) "Where a deed by which a retiring trustee is discharged under this Act contains such a declaration as is in this section mentioned by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants, and for the purposes of the trust, the estate, interest, or right to which the declaration relates. (3.) This section does not extend to any legal estate or interest in copyhold or customary land, or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share, stock, annuity or property as is only transferable in books kept by a com- pany or other body, or in manner prescribed by or under Act of Par- liament (ra). (4.) For purposes of registration of the deed in any registry, the person or persons making the declaration shall be deemed the con- veying party or parties, and the conveyance shall be deemed to be made by Th'tti or them under a power conferred by this Act. (5.) This section applies only to deeds executed after the commence- ment of this Act. («) See Me Sarrison, W. N. (1883), 31. [Sect. 35 provides that trustees with a trust for or power of sale under an instru- ment coming into operation since the Act, may sell in lots, by auction or private contract, subject to special conditions, &c.] [Sect. 36 enables trustees to give receipts for money or personal property payable or transferable to them.] [Sect. 37 empowers executors and trustees to compound, and compromise debts and claims.] [Sect. 38 provides that powers or trusts given since the Act totwo or more executors or trustees jointly may be exercised by the survivors or survivor of them.] VI 1 1. — Maebied WoMBiir. 39_ n.) Notwithstanding that a married woman is restrained from Power for anticipation, the Court may, if it thinks fit, where it appears to the ^°^gt°of™^ 120 CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 44 & 45 Viot. Court to be for her benefit, by judgment or order, ■witb. bar consent, "• ^^' "• ^^- bind ber interest in any property (o). married (2.) Tbis section applies only to judgments or orders made after tbe woman. commencement of tbis Act. Where order binding mar- ried woman's interest made. (o) An order binding the interest of a married woman will only be made where it is clear that the remoyal of the restraint will be for her benefit, and not merely for the benefit of her husband (Tamplm v. Miller, W. N. (1882), 44 ; 30 W. R. 422). The order has been made where land in which a married woman had an interest settled to her separate use without power of anticipation, having been sold, part of the proceeds of the sale was to be paid to a mortgagee {Ee Landfield, Landfield v. Zandfield, 30 W. R. 377) ; where the sanction of the Court was required to a com- promise of the claims of a married woman to trust property, to which she was entitled for her separate use without power of anticipation [Tamplin v. Miller) ; and where a married woman was entitled for her separate use for life without power of anticipation to the income of a fund in Court, to the corpus of which, in the event which had happened, she, in default of the exercise of a testamentary power of appointment vested in herself, was entitled absolutely, the Court (she having contracted a number of debts, for payment of which her creditors were pressing her and causing her great annoyance) considered that the restraint on anticipation ought to be removed, and ordered part of the fund to be paid out to her in order to enable her to pay her debts [Hodges v. Sodges, 30 W. R. 483 ; 20 Ch. D. 749). See also Ex parte Thompson, W. N. (1884), 28 ; Mvsgraiiey. Sandetnan, 48 L. T. 215 ; Sedgwiclc v. Thomas, 48 L. T. 100. An order has been made under special circumstances authorizing the sale of a married woman's life interest in order to provide funds for the purpose of emigration ; see Be Flood, 1 1 L. R. Ir. 355, where the form of the order is given. But it must be clearly shown that the removal of the restraint will benefit the married woman (Re Warren, W. N. (1883), 125 ; 52 L. J., Ch. 928, where the object was to put an end to a marriage settle- ment on the ground that the wife was past child-bearing, and the Court of Appeal refused to allow it) . As to married woman tenant for life, see the Settled Land Act, 1882, s. 61, imfra. The order is made under the general power of the Court, conferred by the statute, and where made in any pending action or proceeding it need not be intituled in the Act (Ee Landfield, Landfield v. Zandfleld, 30 W. R. 377). The application for the order is, where the subject of an independent proceeding, made by summona (s. 69 (3) ; Ee Ulhvall, W. N. (1882), 6 ; 30 W. R. 243). [Sect. 40 empowers a married woman, whether an infant or not, to appoint an attorney.] IX. — ^Intants. Sales and 41. Wbere a person in bis own right seised of or entitled to land for half^of°Sif ^"t ^^ ©state in fee simple, or for any leasehold interest at a rent, is an infant, tbe land shall be deemed to be a settled estate within tbe Settled Estates Act, 1877 {p). (p) See Ee Liddell, W. N. (1882), 183 ; 31 W. R. 238. 42. — (1.) If and as long as any person who would but for this section be beneficially entitled to the possession of any land is an infant, and being a woman is. also unmarried, tbe trustees appointed for this purpose by the settlement, if any, or if there are none so appointed, then the persons, if any, who are for tbe time being under tbe settlement trustees with power of sale of tbe settled land, or of part thereof, or with power of consent to or approval of tbe exercise of such a power of sale, or if there are none, then any persons appointed as trustees for this purpose by the Oourt, on tbe application of a guardian or next friend of the infant, may enter into and continue in possession of the land ; and in every such case tbe subsequent provi- sions of tbis section shall apply. [Sub-sections 2 and 3 confer extensive powers of management on the trustees.] Form of order. Applicatioa for order ; how made. owner, 40 & 41 Vict, 0.18. of land and receipt and application of income during minority. CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 121 (4.) The trustees may apply at discretion any income which, in the exercise of such 4i & 45 Vict, discretion, they deem proper, according to the infant's age, for his or her mainte- c. 41, b. 42. njince, education, or benefit, or pay thereout any money to the infant's parent or guardian, to he applied for the same purposes. (5.) The trustees shall lay out the residue of the income of the land in investment on securities on which they are by the settlement, if any, or by law, authorized to invest trust money, with power to vary investments ; and shall accumulate the in- come of the investments so made in the way of compound interest, by from time to time similarly investing such income and the resulting income of investments ; and shall stand possessed of the accumulated fund arising from income of the land and from investments of income on the trusts following (namely) : (i.) If the infant attains the age of twenty-one years, then in trust for the infant ; (ii.) If the infant is a woman and marries while an infant, then in trust for her separate use, independently of her husband, and so that her receipt after she marries, and lliough stUI an infant, shall be a good discharge ; but (iii.) If the infant dies while an infant, and being a woman without having been married, then, where the infant was, under a settlement, tenant for life, or by purchase tenant in tail or tail male or tail female, on the trusts, if any, declared of the accumulated fund by that settlement ; but where no such, trusts are declared, or the infant has taken the land from which the accu- mulated fund is derived by descent, and not by purchase, or the infant is tenant for an estate in fee simple, absolute or determinable, then in trust for the infant's personal representatives, as part of the infant's personal estate ; but the accumulations, or afiy part thereof, may at any time be applied as if the same were income arising in the then current year. (6.) Where the infant's estate or interest is in an undivided share of land, the powers of this section relative to the land may be exercised jointly with persons entitled to possession of, or having power to act in relation to, the other undivided share or shares. (7.) This section applies only if and as far as a contrary intention is not expressed in tile instrument under which the interest of the infant arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (8.) This section applies only where that instrument comes into operation after the commencement of this Act. 43. — (1.) Where any property is held by trustees in trust for an Application infant, either for life, or for any greater interest, and whether ahso- ^o™*^!^ °* lutely, or contingently on his attaining the age of twenty-one years, or property of on the occurrence of any event before his attaining that age, the ^°f?^* ^°^ trustees may, at their sole discretion, pay to the infant's parent or &o. guardian, if any, or otherwise apply for or towards the infant's main- tenance, education, or benefit, the income of that property, or any part thereof, whether there is any other fund applicable to the same pur- pose, or any person bound by law to provide for the infant's mainte- nance or education, or not {q). Ig) Trustees cannot under this section apply the income of an infant's contingent legacy for the benefit of the infant, unless the income will go along with the capital of the legacy if and when such capital vests (Me Judkin, 25 Oh. D. 743) ; and seeiJe Diekaon W. N. (1884), 235. Under this and the next sub-section trustees may apply past accumulations of income in payment of past maintenance {Se Fitts, W. N. (1884), 225). (2.) The trustees shall accumulate all the residue of that income in the way of compound interest, by investing the same and the resulting income thereof from time to time on securities on which they are by the settlement, if any, or by law, authorized to invest trust money, and shall hold those accumulations for the benefit of the person who ulti- mately becomes entitled to the property from which the same arise {qq) ; but so that the trustees may at any time, if they think fit, apply those accumulations, or any part thereof, as if the same were income arising in the then current year. (jy) See Re BuchUy, 22 Oh. D. 583. 122 CONVEYANCING AND LAW OP PROPERTY ACT, 1881. 44 & 45 Viot. 0. 41, s. 43. Deposit of OTiginal instruments creating powers of attorney. (3.) This section applies only i£ and as far as a contrary intention (r) is not expressed in the instrument tinder which the interest of the infant arises, and shall have effect subject to the terms of that instru- ment and to the provisions therein contained. (4.) This section applies whether that instrument comes into opera- tion before or after the commencement of this Act. (r) A direction for accumulation of income until the happening of the contdngeney on which infants are to become entitled does not show a " contrary intention " (J2e Thatcher, 26 Ch. D. 426). X. — EiEnt-Chabges and other Ajstnttal Sums. [Sect. 44 provides remedies for recovery of annual siuns charged on land ; it is limited to the case of instruments coming into operation since the Act.] [Sect. 45 provides for the redemption of quit rents and other perpetual charges.] XI. — ^Powers of Attob.net. [Sect. 46 provides that an attorney may execute his power in his own name.] [Sect. 47 provides that acts done iu pursuance of a power of attorney without "notice of revocation shall be good.] 48, — (1.) An instrument creating a power of attorney, its execution being verified by affidavit, statutory declaration, or other sufficient evidence, may, with the affidavit or declaration, if any, be deposited in the Central Office of the Supreme Court of Judicature. (2.) A separate file of instruments so deposited shall be kept, and any person may search that file, and inspect every instrument so deposited, and an office copy thereof shall be delivered out to him on request. (3.) A copy of an instrument so deposited may be presented at the office, and may be stamped or marked as an office copy, and when so stamped or marked shall become and be an office copy. (4.) An office copy of an instrument so deposited shall without further proof be sufficient evidence of the contents of the instrument and of the deposit thereof in the Central Office. (5.) General Eules may be made for purposes of this section, regu- lating the practice of the Central Office, and prescribing, with the concurrence of the Commissioners of her Majesty's Treasury, the fees to be taken therein [rr). (6.) This section applies to instruments creating powers of attorney executed either before or after the commencement of this Act. {j-r) SeeiJos*, p. 133. XII. — CoNSTRTJOTION AND MfPEOT OF DeEDS AND OTHER InSTRTJMENTS. [Sect. 49 renders the use of the word " grant" unnecessary.] [Sect. 50 provides that freeholds or a thing in action may be conveyed by a person to himself and another jointly, and by a husband to his wife, and by a wife to her husband, alone or jointly with another person.] [Sect. 51 provides that the words "in fee simple," and " in tail," may be used instead of the old words of limitation.] [Sect. 52 authorises the release of powers whether coupled with an interest or not. See Re Eyre, 49 L. T. 289 ; W. N. (1883), 153 ; Conv. Act, 1882, s. 6, poit, p. 129.] CONVEYANCINa AND LAW OF PROPERTY ACT, 1881. 123 [Sect. 53 relates to the construction of supplemental or annexed deeds.] 44 & 46 Viot. [Sect. 54 enacts that a receipt in the body of a deed shall be sufficient.] _! — L [Sect. 55 provides that a receipt in a deed or endorsed upon, it, shall in favour of a subsequent purchaser, be sufficient evidence of payment.] S6. — (1.) Where a solicitor produces a deed, having in the body Receipt in thereof or iadorsed thereon a receipt for consideration money or other ^lojaed consideration, the deed being executed, or the indorsed receipt beiag authority for signed, by the person entitled to give a receipt for that consideration, ^^^®^* *° the deed shall be sufficient authority to the person liable to pay or give the same for his paying or giving the same to the solicitor, with- out the solicitor producing any separate or other direction or authority m that behalf from the person who executed or signed the deed or receipt. (2.) This section appUes only in cases where consideration is to be paid or given after the commencement of this Act (s). (s) This section does not authorize fiduciary vendors to require the purchaser to Sales by pay the purchase-money to their solicitor on production of a duly-executed con- trustees, veyance in cases -where before the Act they could not have required the purchaser to pay the purchase-money to their solicitor under a special authority (Se Bellamy, 24 Ch. D. 387 ; Me Flower and Metropolitan Board of Works, 27 Ch. D. 592). [Sect. 57 provides for statutory forms of deeds.] [Sects. 58 — 60 relate to the construction of covenants.] [Sect. 61 dispenses vrith the necessity for the joint account clause in mortgages.] [Sect. 62 relates to the grant of easements, &o., by -way of use.] [Sect. 63 dispenses with the necessity for the " all the estate" clause.] [Sect. 64 relates to the construction of the covenants, &c., implied by the Act.] Xin. — ^LoNG Terms. [Sect. 65 authorises the enlargement in certain cases of long terms of years into fee simple estates. See Se Smith and Stott, 31 W. R. 411. The section is amended by sect. 11 of the Conv. Act, 1882.] XIV. — Adoption of Act. 66. — (1.) It is hereby declared that the powers given by this Act to any person, Protection of and the covenants, provisions, stipulations, and words which under this Act are to solicitor and be deemed included or implied in any instrument, or are by this Act made appli- trustees cable to any contract for sale or other transaction, are and shall be deemed in law adopting proper powers, covenants, provisions, stipulations, and words, to be given by or to Act. be contained in any such instrument, or to be adopted in connexion with, or applied to, any such contract or transaction ; and a solicitor shall not be deemed guUty of neglect or breach of duty, or become in any way liable, hy reason of his omitting, in good faith, in any such instrument, or in connexion with any such contract or transaction, to negative the giving, inclusion, implication, or application of any of those powers, covenants, provisions, stipulations, or words, or to insert or apply any others in place thereof, in any case where the provisions of this Act would allow of his doing so. (2.) But nothing in this Act shall be taken to imply that the insertion in any such instrument, or the adoption in coimexion with, or the application to, any con- tract or transaction, of any further or other powers, covenants, provisions, stipula- tions, or words is improper. (3.) Where the soUoitor is acting for trustees, executors, or other persons in a fiduciary position, those persons shall also be protected in like manner. (4.) Where such persons are acting without a solicitor, they shall also be pro- tected in Uke manner. 124 CONVEYANCING AND LAW OF PEOPEBTT ACT, 1881. a & 45 Vict. XV. MiSCBLLANEOTJS. "• ' "• 67.— (1.) Any notice required or authorized by this Act to be served shall be in Eegulations ■writing. respecting (2-) Any notice required or authorized by this Act to be served on a lessee or notice. mortgagor shall be sufEoient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, with- out any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained. (3.) Any notice required or authorized by this Act to he served shall be suffi- ciently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorized to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine. (4.) Any notice required or authorized by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the afore- said place of abode or business, office, or coiuiting-house, and if that letter is not returned through the post-office undelivered ; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. (5.) This section does not apply to notices served in proceedings in the Court. Short title of 68. The Act described in Part II. of the First Schedule to this Act shall, by 5 & 6 WUl. 4, virtue of this Act, have the short title of the Statutory Declarations Act, 1835, and u. 62. may be cited by that short title in any declaration made for any purpose under or by virtue of that Act, or in any other document, or in any Act of Parliament. XVI. — CoTJBT ; Proceditrb ; Oedees. Eegulations 69. — (1.) AH matters within the jurisdiction of the Court under this respecting ^^^ shall, subject to the Acts regulating the Court, be assigned to the Court and Chancery Division of the Court. applications. ^2.) Payment of money into Court shall effectually exonerate there- from the person making the payment. (3.) Every application to the Court shall, except where it is other- wise expressed, be by summons at chambers. (4.) On an application by a purchaser notice shall be served in the first instance on the vendor. (5.) On an application by a vendor notice shall be served in the first instance on the purchaser. (6.) On any application notice shall be served on such persons, if any, as the Court thinks fit. (7.) The Court shall have fuU power and discretion to make such order as it thinks fit respecting the costs, charges, or expenses of all or any of the parties to any application. 39 & 40 "Vict. (8.) General Rules for purposes of this Act shall be deemed Bules c. 69, B. 17. of Court within section seventeen of the Appellate Jurisdiction Act, 1876, and may be made accordingly. (9.) The powers of the Court may, as regards land in the County Palatine of Lancaster, be exercised also by the Court of Chancery of the County Palatine ; and Eules for regulating proceedings in that Court shall be from time to time made by the Chancellor of the Duchy of Lancaster, with the advice and consent of a Judge of the High Court acting in the Chancery Division, and of the Vice-Chancellor of the County Palatine. CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 125 (10.) General Eules, and Eules of tlie Court of Chancery of the 44 & 45 Viot. County Palatine, under thia Act maybe made at anytime after the °- ^^' ^- ^^- passing of this Act, to take effect on or after the commencement of this Act. 70. — (1.) An order of the Court under any statutory or other juris- Orders of diction shall not as against a purchaser, be invalidated on the ground *^o^y' 5'°''' of want of jurisdiction, or of want of any concurrence, consent, notice, or service, whether the purchaser has notice of any such want or not. (2.) Thia section shall have effect with respect to any lease, sale, or other act under the authority of the Court, and purporting to be in pursuance of the Settled Estates Act, 1877, notwithstanding the ex- 40 & 41 Viot. ception in section forty of that Act, or to be in pursuance of any °- ^^> ^- *"• former Act repealed by that Act, notwithstanding any exception in such former Act. (3.) This section applies to all orders made before or after the com- mencement of this Act, except any order which has before the com- mencement of this Act been set aside or determined to be invalid on any ground, and except any order as regards which an action or pro- ceeding is at the commencement of this Act pending for having it set aside or determined to be invalid {t). {t) See Me Sail Dare, 21 Ch. D. 41. XVii. — Eepeais . 71. — (1.) The enactments described in Part III. of the Second Schedule to this Repeal of Act are hereby repealed. enactments in (2.) The repeal by this Act of any enactment shall not affect the validity or in- Part III. of validity, or any operation, effect, or consequence, of any instrument executed or Second made, or of anything done or suffered, before the commencement of this Act, or Schedule • any action, proceeding, or thing then pending or uncompleted ; and every such restriction on action, proceeding, and thing may be carried on and completed as if there had been all repeals. no such repeal in this Aci ; but this prorision shall not be construed as qualifying the provision of this Act relating to section forty of the Settled Estates Act, 1877, or any former Act repealed by that Act. XVm. — ^Irelaud. [Sects. 72 and 73 relate only to Ireland.] SCHEDULES. THE FIRST SCHEDULE. AOTS AFFECTED. PaetI. 1 & 2 Viot. c. 110. — ^An Act for abolishing arrest on mesne process in civil actions, except in certain oases ; for extending the remedies of creditors against the property of debtors ; and for amending the laws for the relief of ihsolvent debtors in England. 2 & 3 Viot. c. 11. — ^An Act for the better protection of purchasers against judg- ments, crown debts. Us pendens, and fiats in bankruptcy. 18 & 19 Viot. c. 15. — An Act for the better protection of purchasers against judg- ments, crown debts, cases of lis pendens, and life annuities or rentcharges. 22 & 23 Viot. c. 35. — An Act to further amend the law of property and to relieve trustees. 23 & 24 Viot. t. 38. — An Act to further amend the law of property. 23 & 24 Vict. V. 115. — An Act to simplify and amend the practice as to the entry of satisfaction on Crown debts and on judgments. 126 OONVETANCINa AND LAW OF PEOPEE.TT ACT, 1881. 44 & 45 Viot. 27 & 28 Viot. c. 112.— An Act to amend the la-w relating to future judgments, 0. 41. statutes, and recognizances. 28 & 29 Viot. 0. 104.— The Crown Suits, &o. Act, 1865. 31 & 32 Vict. 0. 54.— The Judgments Extension Act, 1868. Pabt II. 5. & 6 Will. 4. c. 62.— An Act to repeal an Act of the present session of Parliament, intituled "An Act for the more effectual abolition of oaths and affirmations taken and made in various Departments of the State, and to substitute declara- tions in lieu thereof ; and for the more entire suppression of voluntary and extra-judicial oaths and affidavits;" and to make other provisions for the abolition of unnecessary oaths. THE SECOND SCHEDULE. IIefeai.8. A description or citation of a portion of an Act is inclusive of the ■words, section, or other part, first or last mentioned, or otherwise referred to as forming the beginning, or as forming the end, of the portion comprised in the description or citation. Paet I. 22 & 23 Vict. e. 35. . in part. 23 & 24 Viot. u. 126. . in part. 15 & 16 Vict. 0. 86. . in part. 8 & 9 Viot. 0. 119, 23 & 24 Viot. c. 145 . in part. An Act to further amend the law of \ j_ _„jj. . namelv property and to relieve trustees . . J -^ ' ^' Sections four to nine. The Common Law Procedure Act, ] ■ . . „„„„,„ jggQ ' I mpart; namely, — Section two. Pabt II. An Act to amend the practice and ) course of proceeding in the High > in part ; namely, — Court of Chanceiy ) Section forty-eight. Paet III. An Act to facilitate the conveyance of real property. An Act to give to trustees, mort- \ gageea, and others certain powers f . , , Sow commonly inserted in settle- pP^^rt; namely,- ments, mortgages, and mUs . , . , / Parts II. and III. (sections eleven to thirty). THE THIRD SCHEDULE. [This schedule contains the statutory mortgages referred to in Part V. of the Act.] THE FOURTH SCHEDULE. [This schedule contains the forms of deeds referred to in sect. 57.] CONVEYANCING ACT, 1882. ^27 OONTETANCING ACT, 1882. 45 & 46 viot. 0. 39. 45 & 46 VICT. Cap. 39. An Act for further improving the Practice of Conveyancing; and for other imrposes. [10th August, 1882.] Be it enacted, &c. as foUows : — Preliminary. 1. — (1.) This Act maybe cited as the Conveyancing Act, 1882; and Short titles; the Conveyancing and Law of Property Act, 1881 (in this Act referred °,^f^°^' to as the Conveyancing Act of 1881) and this Act maybe cited together extent; as the Conveyancing Acts, 1881, 1882. interpreta- (2.) This Act, except where it is otherwise expressed, shall commence 44 ^ 45 yjgt. and take effect from "knd immediately after the thirty-first day of c. 41. December, one thousand eight hundred and eighty-two, which time is in this Act referred to as the commencement of this Act. (3.) This Act does not extend to Scotland. (4.) In this Act and in the schedule thereto — (i.) Property includes real and personal property, and any debt, and any thing in action, and any other right or interest in the nature of property, whether in possession or not ; (ii.) Purchaser includes a lessee or mortgagee, or an intending pur- chaser, lessee, or mortgagee, or other person, who, for valuable consideration, takes or deals for property, and purchase has a meaning corresponding with that of purchaser ; (iii.) The Act of the session of the third and fourth years of King 3 & 4 Will. 4, William the Fourth (chapter seventy-four) " for the abolition of "" ^*' Pines and Eecoveries, and for the substitution of more simple modes of Assurance " is referred to as the Fines and Recoveries Act ; and the Act of the session of the fourth and fifth years of 4 & 5 Will. 4, King William the Fourth (chapter ninety-two) "for the abolition °" ®^" of Fines and Recoveries, and for the substitution of more simple modes of Assurance in Ireland" is referred to as the Fines and Recoveries (Ireland) Act. Searches. 2. — (1.) Where any person requires, for purposes of this section. Official, nega- search to be made in the Central Office of the Supreme Court of oirtifioates of Judicature for entries of judgments, deeds, or other matters or docu- searolies for ments, whereof entries are required or allowed to be made in that office ]'^^&™™*8, "*■ crown aeots, by any Act described in Part I. of the First Schedule to the Con- &o. veyancing Act of 1881 (a), or by any other Act, he may deliver in the office a requisition in that behalf, referring to this section (5). (2.) Thereupon the proper officer shall diligently make the search required, and shall make and file in the office a certificate setting forth 128 CONVEYANOINa ACT, 1882. 45 & 46 Vict, the result thereof ; and office copies of that certificate shall be issued c. 39 o 2 — '. — LJ !_ on requisition, and an office copy shall be evidence of the certificate. (3.) In favour of a purchaser, as against persons interested under or in respect of judgments, deeds, or other matters or documents, whereof entries are required or allowed as aforesaid, the certificate, according to the tenour thereof, shall be conclusive, affirmatively or negatively, as the case may be. (4.) Every requisition under this section shall be in writing, signed by the person making the same, specifying the name against which he desires search to be made, or in relation to which he requires an office copy certificate of result of search, and other sufficient particulars ; and the person making any such requisition shall not be entitled to a search, or an office copy certificate, untU he has satisfied the proper officer that the same is required for the purposes of this section. (5.) General rules shall be made for purposes of this section, pre- scribing forms and contents of requisitions and certificates, and regu- lating the practice of the office, and prescribing, with the concurrence of the Commissioners of her Majesty's Treasury, the fees to be taken therein ; which rules shall be deemed rules of Court within section 39 & 40 Vict, seventeen of the Appellate Jurisdiction Act, 1876, as altered by section 44&'45Viet iil'ieteen of the Supreme Court of Judicature Act, 1881, and may be u. 68. made, at any time after the passing of this Act, to take effect on or after the commencement of this Act (bb). (6.) If any officer, clerk, or person employed in the office commits, or is party or privy to, any act of fraud or coUusion, or is wilfully negligent, in the making of or otherwise in relation to any certificate or office copy under this section, he shall be guilty of a misdemeanor. (7.) Nothing in this section or in any rule made thereunder shall take away, abridge, or prejudicially affect any right which any person may have independently of this section to make any search in the office ; and every such search may be made as if this section or any such rule had not been enacted or made. (8.) Where a solicitor obtains an office copy certificate of result of search under this section, he shall not be answerable in respect of any loss that may arise from error in the certificate. (9.) "Where the solicitor is acting for trustees, executors, agents, or other persons in a fiduciary position, those persons also shall not be so answerable. (10.) Where such persons obtain such an office copy without a solicitor, they shall also be protected in like manner. (11.) Nothing in this section applies to deeds inroUed under the 3 & 4 Will. 4, Knes and Recoveries Act, or under any other Act, or under any "■ '*• statutory rule. (12.) This section does not extend to Ireland. (a) See this Schedule, ante, p. 126. (J) See E. S. C. 1883, Ord. LXI. r. 23, infra. {ib) Seeposl, p. 132. CONVETANCINa ACT, 1882. 129 Notice. 45 & 46 Viot. 8- — (!•) -A- purchaser shall not he prejudioiaUy afieoted by notice of any instru- "• ^^> ■*■ ^• ment, fact, or thing unless — .z — , (i.) It is within his o-vra. knowledge, or would have come to his knowledge if such Restriction on inquiries and inspections had been made as ought reasonably to have been constructive made by him; or s j notice, (ii.) In the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of hia soUoitor, or other agent, as such, or would have come to the knowledge of his solicitor, or other agent, as such, if such inquiries and inspections had been luade as ought reasonably to have been made by the solicitor or other agent, (p.) This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, condition, provision, or restriction contained in any iostrument under which his title is derived, mediately or imme- diately ; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted. (3.) A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so afEected if this section had not been enacted. (4. ) This section applies to purchases made either before or after the commence- ment of this Act ; save that, where an action is pending at the commencement of this Act, the rights of the parties shall not be affected by this section. Leases. [Sect. 4 provides that a contract for a lease shall not form part of the title to the ise.] Separate Trustees. 5. — (1.) On an appointment of new trustees, a separate set of trustees Appointment may be appointed for any part of the trust property held on trusts "gj-g^J"!^**® distinct from those relating to any other part or parts of the trust trustees. property ; or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the first-mentioned part. (2.) This section applies to trusts created either before or after the commencement of this Act. Powers. [Sect. 6 authorizes any person to whom any power, whether with or without an interest, is given, to disclaim it by deed, and thereupon the power may be exercised by the other donees.] Married Women. 7. — (1.) In section seventy-nine of the Knes and Recoveries Act, and section Acknowledg- seventy of the Fines and Recoveries (Ireland) Act, there shall, by virtue of this ment of deeds Act, be substituted for the words "two of the perpetual commissioners, or two by married special commissioners," the words "one of the perpetual commissioners, or one women, special commissioner;" and in section eighty-three of the Fines and Recoveries Act, and section seventy-four of the Fines and Recoveries (Ireland) Act, there shall, by virtue of this Act, be substituted for the word " persons " the word " person," and for the word "commissioners" the words " a commissioner ; " and all other provisions of those Acts, and all other enactments having reference in any manner to the sections aforesaid, shall be read and have effect accordingly. (2.) Where the memorandum of acknowledgment by a married woman of a deed purports to be sigrned by a person authorized to take the acknowledgment, the deed shall, as regards the execution thereof by the married woman, take effect at the time of acknowledgment, and shall be conclusively taken to have been duly acknowledged. (3.) A deed acknowledged before or after the commencement of this Act by a married woman, before a judge of the High Court of Justice in England or Ireland, or before a judge of a county court in England, or before a chairman in Ireland, or before a perpetual commissioner or a special commissioner, shall not be impeached or impeachable by reason only that such judge, chairman, or commissioner was interested or eonoemed either as a party, or as solicitor, or clerk to the solicitor for one of the parties, or otherwise, in the transaction giving occasion for the acknow- ledgment ; and general rules shall be made for preventing any person interested or M. If 130 CONVETANCING ACT, 1882. 45 & 46 Vict, concerned as aforesaid from taking an acknowledgment ; but no such rule shall c. 39, s. 7. make invalid any acknowledgment ; and those rules shall, as regards England, be — — — — deemed Rules of Court within section seventeen of the Appellate Jurisdiction Act, 39 & 40 Vict. 1876^ as altered by section nineteen of the Supreme Court of Judicature Act, 1881, "• 59- _ and shaU, as regards Ireland, be deemed Rules of Court within the Supreme Court 44 & 45 Vict, of Judicature Act (Ireland), 3877, and may be made accordingly, for England and "■ ^^. Ireland respectively, at any time after the passing of this Act, to take effect on or 40 & 41 Vict, after the commencement of this Act (c). "• °i- (4.) The enactments described in the schedule to this Act are hereby repealed. (5.) The foregoing provisions of this section, including the repeal therein, apply only to the execution of deeds by married women after the commencement of this Act. (6.) Notwithstanding the repeal or any other thing in this section, the certificate, if not lodged before the commencement of this Act, of the taking of an acknow- ledgment by a married woman of a deed executed before the commencement of this Act, with any afiidavit relating thereto, shall be lodged, examined, and filed in the Hke manner and with the lifce effects and consequences as if this section had not been enacted. (7.) There shall continue to be kept in the proper ofSce of the Supreme Court of Judicature an index to all certificates of acknowledgments of deeds by ma.rried women lodged therein, before or after the commencement of this Act, containing the names of the married women and their husbands, alphabetically arranged, and the dates of the certificates and of the deeds to which they respectively relate, and other particulars found convenient ; and every such certificate lodged after the com- mencement of this Act shall be entered in the index as soon as may be after the certificate is filed. (8.) An office copy of any such certificate filed before or after the commencement of this Act shall be delivered to any person applying for the same ; and every such office copy shall be received as evidence of the acknowledgment of the deed to which the certificate refers. (c) See p. 131, infra. Powers of Attorney. [Sect. 8 provides in favour of purchasers that powers of attorney, given for value and expressed to be irrevocable, shall not be revoked.] [Sect. 9 makes powers of attorney expressed to be irrevocable (whether given for value or not) absolutely valid in favour of purchasers for a fixed time not exceeding one year.] Executory Limitations. [Sect. 10 contains a restriction on executory limitations contained in instruments coming into operation after the Act.] Long Terms. [Sect. 11 amends sect. 65 of the Conveyancing Act, 1881 ; see ante, p. 123.] Mortgages. Reconveyance 12. The right of the mortgagor, under section fifteen of the Con- on mortgage, . « o o > . i » veyancmg Act of 1881, to require a mortgagee, instead of re-conveying, to assign the mortgage deht and convey the mortgaged property to a third person, shall belong to and he capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance ; but a requisition of an incumbrancer shaU prevail over a requisition of the mortgagor, and, as between incumbrancers, a re- quisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer {cc). {co) This section was passed for the purpose of getting over the decision in Teevan V. Smith, 20 Ch. D. 724 ; see Alderam v. Elgey, 26 Ch. D. p. 570, cited in note (e) to sect. IS of the Conveyancing Act, 1881, ante, p. 114. Saving-. Restriction on 13' '^^ repeal by this Act of any enactment shall not affect aay right accrued or repeals in this obligation incurred thereunder before the commencement of this Act ; nor shall the Act. same affect the validity or invalidity, or any operation, effect, or consequence, of any CONVETANCINa ACT, 1882. 131 instrument executed or made, or of anything done orsufiered, before the commence- 46 & 46 Vict, ment of this Act ; nor shall the same affect any action, proceeding', or thing then o. 39, s. 13. pending or uncompleted ; and every such action, proceeding, and thing may be earned t)n and completed as if there had been no such repeal in this Act. 3 & 4 WiU. rV. 0. 74 ia part. 4 & 5 Will. rV. c. 92 in part. 17 & 18 Vict. c. 75 .. 41 & 42 "Vict. c. 23 . . SCHEDULE. KePEAIiS. The Pines and Recoveries Act ....in part; namely, — Section eighty-four, from and including the words " and the same judge," to the end of that section. Sections eighty-five to eighty-eight, inclusive. The Fines and Recoveries (Ireland) ■) . , , ^gt _ '' ' I m part ; namely,— Section seventy-five, from and including the words " and the same judge," to the end of that section. Sections seventy- six to seventy-nine, inclusive. An Act to remove doubts concerning the due aoknow- , ledgments of deeds by married women in certain cases. The Acknowledgment of Deeds by Married Women (Ireland) Act, 1878. Section 7 (4). Rtiles ukdke the Act foe the Aboution op Fines and Reooveeies, and Sect. 7 OP THE CoNTETANdNO AOT, 1882. 1. No person authorized or appointed under the Act 3 & 4 Will. IV. c. 74 (in these rules referred to as the Pines and Recoveries Act) to take the acknowledg- ments of deeds by married women shall take any such acknowledgment if he is interested "or concerned either as a party or as solicitor or clerk to the solicitor for one of the parties or otherwise in the transaction giving occasion for the acknow- ledgment. 2. Before a Commissioner shall receive an acknowledgment, he shall inquire of the married woman separately and apart from her husband and from the solicitor concerned in the transaction whether she intends to give up her interest in the estate to be passed by the deed without having any provision made for her ; and where the married woman answers in the affirmative and the Commissioner shall have no reason to doubt the truth of her answer, he shall proceed to receive the acknowledgment ; but if it shall appear to him that it is intended that provision is to be made for the married woman, then the Commissioner shall not take her acknowledgment until he is satisfied that such provision has been actually made by some deed or writing produced to him ; or it such provision shall not have been actually made before, then the Commissioner shall require the terms of the intended provision to be shortly reduced into writing, and shall verify the same by his signature in the margin, at the foot, or at the back thereof. 3. The memorandum to be indorsed on or written at the foot or in the margin of a deed acknowledged by a married woman shall be in the following form in lieu of the form set forth in sect. 84 of the Pines and Recoveries Act : " This deed was this day produced before me and acknowledged by therein named to be her act and deed [or their several acts and deeds] previous to which acknowledgment [or acknowledgments] the said was [or were] examined by me separately and apart from her husband [or their respective hus- bands] touching her [or their] knowledge of the contents of the said deed and her [or their] consent thereto and [each of them] declared the same to be freely and voluntarily executed by her." 4. When an acknowledgment is taken by any person other than a judge, the following declaration shall be added to the memorandum of acknowledgment : — " And I declare that I am not interested or concerned either as a party or as a " solioitor or clerk to the solicitor for one of the parties or otherwise in the trans - " action giving occasion for the said acknowledgment." 5. A memorandum of acknowledgment purporting to be signed according to any k2 132 CONVEYANCING ACT RULES, 1882. . of the following forms shall be deemed to be a memorandum purporting to be gigned- by a person authorised to take the acknowledgment : — (Signed) A.B. A judge of the High Court of Justice in England, or a judge of the County Court of , or a perpetual commissioner for taking acknowledgments of deeds by married women, or the special commissioner appointed to take the aforesaid acknow- ledgment. But this rule is not to derogate from the effect of any memorandum purporting to be signed by a person authorized to take the acknowledgment, thongh.not signed in aooordanoe with any of the above forms. 6. Nothing in the five preceding rules contained shall make invalid any acknow- ledgment which would have been valid if these rules had not been enacted. 7. Every commission appointing a special commissioner to take an acknowledg- ment by a married woman shall be returned to the office of the registrar of certifi- cates of acknowledgments of deeds by married women, and shall be there filed. An index shall be prepared and kept in the said office, giving the names and addresses of the married women named in all such commissions filed in the said office after the 31st December, 1882. The same rules shall apply to searches in the index so to be prepared as to searches in the other indexes and registers kept in the Central Office. . 8. The costs to be allowed to solicitors in respect of the matters hereinafter men- tioned, when not otherwise regulated by the general orders in force for the time being under the Solicitors' Remuneration Act, 1881, or by special agreement, shall be as follows : anything in the Rules of the Supreme Court as to costs, dated the 12th August, 1875, to the contrary notwithstanding : — Charges wider the Act 3^4 Will. lY. e. 74 {the Fines and Secoveries Act). For the endorsements on deeds required by the Fines and Recoveries £ a. d. Act, to be entered on the Court rolls of manors of the memorandum of production and memorandum of entry on Court rolls, to be signed by the lord steward or deputy steward, each indorsement of memorandum 6s., together 10 For the entries on the Court rolls of deeds and the indorsements thereon, at per folio of 72 words 6 IFor taking the consent of each protector of settlement of lands 13 4 For taking the surrender by each tenant in tail of lands 13 4 For entries of such surrenders or the memorandums thereof in liie Court rolls, at per folio of 72 words 6 9. The following Rules and Orders are hereby repealed, except as to certificates not lodged before the 1st January, 1883, of acknowledgments by married women of deeds executed before the 1st January, 1883, and the affidavits relating thereto : — The General Rules of the Court of Common Pleas, HUary Term, 1834. The General Rules of the Court of Common Pleas, Trinity Term, 1834. The General Order of the Court of Common Pleas, dated the 24th November. 1862. ' The General Order of the Court of Common Pleas, dated the 13th January, 1863. 10. These Rules shall take effect from and after the 31st December, 1882. RuiiES TJITDEE SECTION 2 OF THE CoNVETAUCTNG AoT, 1882. 1. Every requisition for an official search shall state the name and address of the person requiring the search to be made. Every requisition and certificate shall be filed in the office where the search was made. 2. Every person requiring an official search to be made pursuant to section 2 of the Conveyancing Act, 1882, shaU deHver to the officer a declaration according to the Forms I. and II. in the Appendix, purporting to be signed by the person requiring the search to be made, or by a solicitor, which declaration may be accepted by the officer as sufficient evidence that the search is required for the purposes of the said section. The declaration may be made in the requisition or in a separate document. ' 3. Requisitions for searches under section 2 of the Conveyancing Act, 1882 shall be in the Forms III. to VI. in the Appendix, and the certificates of the results of such searches shall be in the Forms VII. to X., with such modifications as the circumstances may require. CONVEYANCING ACT RULES, 1882. 133 i. Where a certificate setting forth the result of a search in any name has been issued, and it is desired that the search be continued in that name, to a date not more than one calendar month subsequent to the date of the certificate, a requisi- tion in -writing in the Form XI. in the Appendix may be left -with the- proper officer, who shall cause the search to be continued, and the result of the continued search shall be endorsed on the original certificate and upon any office copy thereof ■which may have been issued, if produced to the officer for that purpose. The endorsement shall be in the Porm XII. in the Appendix with such modifications as circumstances require. 5. Every person shall upon payment of the prescribed fee he entitled to have a copy of the whole or any part of any deed or document enrolled in the Enrolment Department of the Central Office. Rule under the CoNVETAiroiNa and Lav of Peopeeiy Act, 1881. 6. An alphabetical index of the names of the grantors of all powers of attorney filed under section 48 of the Conveyancing and Law of Property Act, 1881, shall be prepared and kqpt by the proper officer, and any person may search the index upon payment of the prescribed fee. No person diaU take copies of or extracts from any power of attorney or other document filed under that section and pro- duced for his inspection. All copies or extracts which may be required shall be made by the Office. (Signed) SELBORNE, C. COLERIDGE, L. C. J. G. JESSEL, M. R. NATH. LINDLET, L. J. H. MANISTT, J. EDW. FRY, J. APPENDIX. FORM I. DbciiAbation by Sbpabatb Ihsteotibnt as to Puepobbs of Seaech. Supreme Court of Judicature, Central Office. To the Clerk of Enrolments or The Registrar of Royal Courts of Justice, London. In the matter of A.B. and CD. I declare that the search (or searches) in the name {or names) of required to be made by the requisition for search, dated the is (or are) required for the purposes of a sale {or mortgage, or lease, or as the case may be), by A.B. to CD. Signature, address, and description. Dated FORM 11. Dboiaeation as to Pueposes dp Sbaboh containbd xs the Hequisition. I declare that the above-mentioned search is required for the purposes of a sale {or mortgage, or lease, or as the ease may be), by A.B. to CD. 134 CONVEYANCING ACT BULES, 1882. POKM III. Requisition foe Seaeoh in the Eneolment Opmcib, tjndbb the CoNVETAuoiNa Act, 1882, s. 2. Supreme Court of Judicature, Central Office. ' Requisition for Search. To the Clerk of Enrohnenls, Royal Courts of Justice, London. In the matter of A.B. and CD. Pursuant to section 2 of the Conveyancing Act, 1882, search for deeds and other documents enrolled during the period from 18 to 18 both inclusive, in the following name (fir names). Surname. Christian Name or Names. Usual or last knOTm Place of Almde. Title, Trade, or Pro- fession. [Add deeJaration, Form XI.) {State if an office copy of the certificate is desired, and whether it is to he sent hj post or called for.) Signature, address, and \ description of person 5 requiring the search. ) Dated FORM IV. Reouisition foe Seaeoh in the Bills or Sale Depaeiment irarDEE the Contet- ANCiNQ Act, 1882, s. 2. Supreme Court of Judicature, Central Office. Requisition for Search. To the Registrar of Bills of Sale, Royal Courts of Justice, London. In the matter of A.B. and CD. Pursuant to section 2 of the Conveyancing Act, 1882, search for instruments registered or re -registered as bills of sale during the period from 18 to 18 both inclusive in the following name (or names). Surname. Christian Name or Names. Usoal or last known Place of Abode. Title, Trade, or Pro- fession. ( [Add declaration. Form II.) (Slate if an office copy of the certificate is desired, and whether it is to be sent by post or called for.) Dated Signature, address, and | description of person > requiring the search. ) CONVErANCINa ACT EULES, 1882. 135 POEM V. RBQUismoir FOE Seaeoh in the Eeoistey of Ceetifioates of Aoknowledqhents OF Deeds by TVfAEErpm "Women tjnbbb the Conthtahoinq Aot, 1882, s. 2. Supreme Court of Judicature, Central Office. Eequisition for Search. To the Eegistrar of Certificatea of Acknowledgments of Deeds by Married "Women. Royal Courts of Justice, London. In the matter of A.B. and CD. Pursuant to section 2 of the Conveyancing Aot, 1882, search for Certificates of Acknowledgments of Deeds by Married "Women during the period from 18 to 18 both inolusive, according to the particulars men- tioned in the schedule hereto. The SOHEDTTIiE. Surname. Christian Name or Names of "Wife and Husband. Date of Certificate if the Search relates to a parti- cular Certificate. Date of Deed, if the Search relates to a nar- ticnlor DeeS. County, Parish, or Place in which the Property is situate, or other description of the Koperty. {Add declaration, Form II.) {State if an office copy of the certificate ia desired, and whether it is to be sent by post or ailed for.) Signature, address, and \ description of person > requiring the search. ) Dated FORM VI. Requisition foe Seaeoh in the Reqistet of Judoments tjndee the Convetanoino Act, 1882, s. 2. Supreme Court of Judicature, Central Office. Requisition for Search. To the Registrar of Judgments, Royal Courts of Justice, London. In the matter of A.B. and CD. Pursuant to section 2 of the Conveyancing Aot, 1882, search for judgments, revivals, decrees, orders, rules, and lis pendens, and for judgments at the suit of the Oown, statutes, recognizances. Crown bonds, inqiusitions, and acceptances of office for the period from 18 to 18 , both inclusive and for executions for the period from the 29th July, 1864, {or as the ease may require) to the 18 , both inclusive, and for annuities for 136 CONVETANCING ACT RULES, 1882. the period from the 26th April, 1855 (or as the case may require) to the 18 , both inoluaive in the following name [or names). Sumajus. Christiaii Name or Names. Usual or last kno'vm Place of Abode. Title, Trade, or Pro- fession. (Add declaration. Form II.) (State if an office copy of the certificate is desired, and whether it is to be sent by post or, called for.) Bated Signature, address, and \ description of person > requiring the search. ; FORM VII, CBETrFIOATB OF SeAEOH BY EneOLMBNT DbPABTMENT UNDBB THB CONVETANaiKa Act, 1882, s. 2. Supreme Court of Judicature, Central Office, Enrolment Department. Certificate of Search pursuant to Section 2 of the Conveyancing Act, 1882. In the matter of A.B. and CD. This is to certify that a search has been diligently made in the Enrolment OfBce for deeds and other documents in the name (or names) of for the period from to , both inoluaiTe, and that no deed or other document has been enrolled in the said office in that name (or in any one or more of those names) during the period aforesaid. or and that except the described in the schedule hereto no deed or document has been enrolled in that name (or in any one or more of those names) during the period aforesaid. The Schedule. Dated FORM VIII. CbETIPIOATE of SbAEOH by the RbOISTBAE of BiLLa OF SAIiB TTHDEB THB CoMVBTAirOIKO AoT, 1882. Supreme Court of Judicature, Central Office, Bills of Sale Department. Certificate of Search pursuant to Section. 2 of the Conveyancing Act, 1882. In the matter of A.B. and CD. This is to certify that a search has been diligently made in the Register of Bills of Sale in the name (or names) of for the period from 18 to 18 both inclusive, and that no instrument has bsen registered or re-registered as a bill of sale in that name (or in any one or more of those names) during that period. .CONVEYANCIN& ACT RULES, 1882. or, and that except the described in the schedule hereto, no instrument has been registered or re-registered as a bill of sale in that name {or in any one or more of those names) during the period aforesaid. The SoHEDTJiiB. Dated 137 FORM IX. CbETIPICATE op SbAEOH by ReQISTBAB op CbETIPIOATES op AcKNO'WIiEDGJIENTS OP Deeds by lyfATtBrRn 'Woiien thibee the Conveyanoinq Act, 1882, s. 2. Supreme Court of Judicature, Central OfSce. Registry of Certificates of Acknowledgments of Deeds by Married Women. Certificate of Search pursuant to Section 2 of the Conveyancing Act, 1882. In the matter of A.B. and CD. This is to certify that a search has been diligently made in. the OfEce of the Registrar of Certificates of Acknowledgments of Deeds by Married Women in the name {or names) of for the period from to 18 , both inclusive, for a certificate dated the ■ or for certificates of acknowledgment of a deed dated the or for certificates of acknowledgments of deeds relating to {fill in the description of the property from the Requisition) and that no such certificate has been filed In that name {or in any one or more of those names) during the period aforesaid, or and that except the certificate (or certificates) described in the Schedule hereto, no such certificate has been filed in that name {or in any one or more of those names) during the period aforesaid. Snmame. Obiistiaix Karnes of Wife and Husband. Date of Certificate. Date of Deed. County, Farisli, or Place ia which Property situated, or otber description of the Properly. Dated day of 188 FORM X. Cbetipioatb op Seaeoh by Reoisteae op Jutgments unbeb CoNVEYAuonia Act, 1882, s. 2. Supreme Court of Judicature, Central Office. The Registry of Judgments. Certificate of Search pursuant to Section 2 of the Conveyancing Act, 1882. In the matter of A.B. and CD. This is to certify that a search has been diligently made in the Office of the Registrar of Judgments for judgments, revivals, decrees, orders, rules, lis pendens, 138 coNVEYANcrisra act rules, 1882. judgmentfl at the suit of the Crown, statutes, recognizanoes, Crown bonds, inqui- sitions, and acceptances of office, for the period from 18 to 18 , both inclusive, and for executions for the period from 18 to 18 , both inclusive, and for annuities for the period from to 18 , both inclusive, in the name [or names) of and that no judgment, revival, decree, order, rule, lis pendens, judgment at the suit of the Crown, statute, recognizance. Crown bond, inquisition, acceptance of office, execution, or annuity has been registered or re-registered in that name [or in any one or more of those names) during the respective periods covered by the aforesaid searches, or and that except the mentioned in the Schedule hereto, no judgment, revival, decree, order, rule, lis pendens, judgment at the suit of the Crown, statute, recogni- zance. Crown bond, inquisition, acceptance of office, execution, or annuity has been registered or re-registered in that name (or in any one or more of those names) during the respective periods covered by the aforesaid search. The Scheduli}. Dated the day of 188 . FOEM XI. EEauisiTiON roE CoNTunjATiON OP Seaboh tjotjee the CoNTETANOnsra Act, 1882. Supreme Court of Judicature, Central Office. Hequisition for continuation of Search. To the Clerk of Enrolments or The Registrar of Royal Courts of Justice, London, W-C. In the matter of A. B. and C. D. Pursuant to section 2 of the Conveyancing Act, 1882, continue the search for [ ], made pursuant to the requisition dated the day of 18 , in the name [oT names) of , from the day of to the day of 18 , both inclusive. Signature, address, and \ description of person > requiring the search. ) Dated FORM XII. CeETIFICATE OE EESUI.T OE CONTHnTED SeABOH tTNIIEE THE CoiTVEYAHOnia AoT, 1882, B. 2, TO BE ENBOESED ON OsiailfAI, CeETIFIOATE. This is to certify that the search {or searches) mentioned in the within written certificate has {or have) been diligently continued to the day of , 18 , and that up to and including that date [except the mentioned in the schedule hereto {these words to be omitted where nothing isfotmd) ], no deed or other document has been enrolled, or no instrument has been registered, or re -registered, as a bill of sale, or no certificate has been filed, or no judgment, revival, decree, order, rule, lis pendens, judgment at the suit of the Crown, statute, recognizance, Crown bond, inquisition, acceptance of office, execution or annuity, has been registered or re-registered in the within-mentioned name {or in any one or more of the within- mentioned names). Dated SETTLED LAND ACT, 1882. 139 SETTLED LAND ACT, 1882. 45 & 46 Vict. 0. 38. 45 & 46 VICT. Cap. 38. An Aci for facilitating Saks, Leases, and other dispositions of Settled Land, and for promoting the execution of Improvements thereon. [10th August, 1882.] Be it enacted, &c. as follows : I. — Peeliminaey. 1. — (1.) This Act may be cited as the Settled Land Act, 1882. Short title; (2.) This Act, except where it is otherwise expressed, shall commence commenoe- and take efEect from and immediately after the thirty-first day of ™^''*; December, one thousand eight hundred and eighty-two, which time is in this Act referred to as the commencement of this Act. (3.) This Act does nof extend to Scotland. extent. n. — ^DEETNITIOlfS. 2. — (1.) Any deed, will, agreement for a settlement, or other agree- Definition of ment, covenant to surrender, copy of court roU, Act of Parliament, or tenant^for' other instrument, or any number of instruments, whether made or life, &o. passed before or after, or partly before and partly after, the commence- ment of this Act, under or by virtue of which instrument or instruments any land, or any estate or interest in land, stands for the time being limited to or in trust for any persons by way of succession, creates or is for purposes of this Act a settlement, and is in this Act referred to as a settlement, or as the settlement, as the case requires (o). (2.) An estate or interest in remainder or reversion not disposed of by a settlement, and reverting to the settlor or descending to the testator's heir, is for purposes of this Act an estate or interest coming to the settlor or heir under or by virtue of the settlement, and comprised in the subject of the settlement. (3.) Land, and any estate or interest therein, which is the subject of a settlement, is for purposes of this Act settled land, and is, in relation to the settlement, referred to in this Act as the settled land. (4.) The determination of the question whether land is settled land, for purposes of this Act, or not, is governed by the state of facts, and the limitations of the settlement, at the time of the settlement taking effect. (5.) The person who is for the time being, under a settlement, beneficially entitled to possession of settled land, for his life, is for purposes of this Act the tenant for Hfe of that land, and the tenant for life under that settlement {aa). (6.) If, in any case, there are two or more persons so entitled as tenants in common, or as joint tenants, or for other concurrent estates or interests, they together constitute the tenant for hfe for purposes of this Act. 140 SETTLED LAND ACT, 1882. 45 & 46 Vict. (7.) A person being tenant for life within the foregoing definitions "• ' ^" • shall he deemed to be such notwithstanding that, under the settlement or otherwise, the settled land, or his estate or interest therein, is incumbered or charged in any manner or to any extent. (8.) The persons, if any, who are for the time being, under a settle- ment, trustees with power of sale of settled land, or with power of consent to or approval of the exercise of such a power of sale, or if under a settlement there are no such trustees, then the persons, if any, for the time being, who are by the settlement declared to be trustees thereof for purposes of this Act, are for purposes of this Act trustees of the settlement (J). (9.) Capital money arising under this Act, and receivable for the trusts and purposes of the settlement, is in this Act referred to as capital money arising under this Act. (10.) In this Act— (i.) Land includes incorporeal hereditaments, also an undivided share in land ; income includes rents and profits ; and possession includes receipt of income : (ii.) Eent includes yearly or other rent, and toU, duty, royalty, or other reservation, by the acre, or the ton, or otherwise ; and, in rela- tion to rent, payment includes delivery ; and fine includes premium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift : (iii.) Building purposes include the erecting and the improving of, and the adding to, and the repairing of buildings; and a building lease is a lease for any building purposes or purposes connected there- with : (iv.) Mines and minerals mean mines and minerals whether already opened or in work or not, and include all minerals and substances in, on, or under the land, obtainable by underground or by surface working ; and mining purposes include the sinking and searching for, winning, working, getting, making merchantable, smelting or other- wise converting or working for the purposes of any manufacture, car- rying away, and disposing of mines and minerals, in or under the settled land, or any other land, and the erection of buildings, and the execution of engineering and other works, suitable for those purposes ; and a mining lease is a lease for any mining purposes or purposes connected therewith, and includes a grant or licence for any mining purposes : (v.) Manor includes lordship, and reputed manor or lordship : (vi.) Steward includes deputy steward, or other proper oflGlcer of a manor : (vii.) WiU includes codicil, and other testamentary instrument, and a writing in the nature of a wiU : (viii.) Securities include stocks, funds, and shares : (ix.) Her Majesty's High Court of Justice is referred to as the Court : SETTLED LAND ACT, 1882. 141 (x.) The Land Commissioners for England as constituted by this Act 45 & 46 Viot. axe referred to as tlie Land Commissioners : °- ^^' ^- ^- (xi.) Person includes corporation. (a) Wliere a share under a settlement has been settled, the original settlement " Settle- nevertheless remains the ' ' settlement ' ' under the Act, and a summons for the appoint- meut. ' ' ment of new trustees need not be entitled in the matter of the derivative settlement nor be served on the trustees of it {Me Enowles, 27 Ch. D. 707, -where Pearson, J. deoUned to appoint two members of the same family trustees). {aa) See Be Jones, 24 Ch. D. 583 ; affd. 26 Ch. D. 736. (i) Where property had been devised to trustees upon trust, subject to an an- nuity (which had ceased) and a mortgage, to pay the rents to a person for his life, or to permit him to receive the same, and after his death to sell the property and stand possessed of the proceeds for the benefit of his children, and the tenant for life was of advanced age, and had only one child, who had sold her reversionary interest in the property, it was held that the property was settled land within the meaning of the Act, and that the tenant for life had a power of sale over it ; but that there were not, under the settlement, any trustees who, as required by the Act, had power to sell, or consent to a sale, and to whom notice had to be given, and accordingly the tenant for life was, at the instance of the purchaser of the reversion, restrained from selling the property until judgment or further order, or until trustees for the purposas of the Act were appointed, and due notice given to them of an intention to sell : and the Court, under the circumstances of the case, directed that notice should be given to the plaintifl of any application to appoint such trustees (Wheelwright v. Walker, 23 Ch. D. 752 ; 31 W. E. 363). See also as to the construction of this sub-section, Re Garnett Orme, 25 Ch. D. 595. JUU. — Sale ; Eicfranchisement ; Exchange ; Partition. General Powers and Regulations. 3. A tenant for Hf e— p^^^^^g ^„ (i.) May sell the settled land, or any part thereof, or any easement, tenant for life right, or privilege of any kind, over or in relation to the ' same (c) ; and (ii.) "Where the settlement comprises a manor, — may sell the seignory of any freehold land within the manor, or the free- hold and inheritance of any copyhold or customary land, parcel of the manor, with or without any exception or re- servation of all or any mines or minerals, or of any rights or powers relative to mining purposes, so as in every such case to effect an enfranchisement ; and (iii.) May make an exchange of the settled land, or any part there- of, for other land, including an exchange in consideration of money paid for equality of exchange ; and (iv.) Where the settlement comprises an undivided share in land, or, under the settlement, the settled land has come to be held in undivided shares, — may concur in making partition of the entirety, including a partition in consideration of money paid for equality of partition. (c) As to the very extensive nature of the power of sale conferred on tenants for life by the Act, see Re Chaytor, 25 Ch. D. 651, where there was a previous private Act authorizing the trustees to sell subject to a certain restriction, and it was held that the tenant for life could sell free from the restriction ; Thomas v. Williams, 24 Ch. D. 558. See, however, sect. 53, infra. [Sect. 4 lays down certain rules to be observed in the exercise of the powers con- ferred by sect. 3. See sect. 53, infrn.'\ of district. 142 SETTLED LAND ACT, 1882. 45 & 46 Vict. Special Powers. "• 38» <>■ °- [Sect. 5 provides for the transfer of incumbrances on land sold, exchanged, or partitioned.] rV. — Leases. General Powers and Regulations. Power for g. A tenant for life may lease the settled land, or any part thereof, tri^se^for'^^ or any easement, right, or privilege of any kind, over or in relation ordinary or to the same, for any purpose whatever, whether involving waste or Ttifaing^r"^- ^°*' *°^ ^^'^ *®™^ '^°* exceeding- poses, (i.) In case of a building lease, ninety-nine years : (ii.) In case of a mining lease, sixty years : (iii.) In ease of any other lease, twenty-one years. [Sect. 7 lays down certain rules to be observed in the granting' of leases generally; they are to be by deed, at the best rent, &o.] Building and Mining Leases. [Sect. 8 lays down regulations to be observed respecting building leases.] [Sect. 9 lays down regulations to be observed in granting mining leases.] Variation of lO- — (!•) "Where it is shown to the Court with respect to the district binlding or in which any settled land is situate, either — acTO^^g^to (i-) '^^^^ i* is *^® custom for land therein to be leased or granted circumstances for building or mining purposes for a longer term or on other conditions than the term or conditions specified in that behalf in this Act, or in perpetuity ; or (ii.) That it is difficult to make leases or grants for building or mining purposes of land therein, except for a longer term or on other conditions than the term and conditions specified in that behalf in this Act, or except in perpetuity ; the Court may, if it thinks fit, authorize generally the tenant for life to make from time to time leases or grants of or affecting the settled land in that district, or parts thereof, for any term or in perpetuity, at fee-farm or other rents, secured by condition of re-entry, or other- wise, as in the order of the Court expressed, or may, if it thinks fit, authorize the tenant for life to make any such lease or grant in any particular case. (2.) Thereupon the tenant for life, and subject to any direction in the order of the Court to the contrary, each of his successors in title being a tenant for life, or having the powers of a tenant for life under this Act, may make in any case, or in the particular case, a lease or grant of or affecting the settled land, or part thereof, in conformity vfdth the order (d). [ft) As to the procedure on an application to the Court, see generally the Settled Land Act Kules, 1882, post, p. 157, and as to orders under this section see ibid. r. 9, [By sect. 11, part of the rent under a mining lease (in the absence of a contrary intention in the settlement) is to be set aside as capital money. See Ee Duke of Newcastle, 24 Ch. D. 129.] Special Powers. [Sect. 12 confers leasing powers for special objects.] SETTLED LAND ACT, 1882. I43 Surrenders. 45 & 46 viot. [Sect. 13 authorises the tenant for life to accept surrenders and grant new 0. 38, s. 13. leases. J ■ Copyholds. [Sect. 14 empowers the tenant for life to grant licences to copyholders.] V. — Saij;s, Leases, amj other Dispositions. Mansion and Parh. 15. Notwithstanding anything in this Act, the principal mansion Restriction as house on any settled land, and the demesnes thereof, and other lands *° mansion usually occupied therewith, shall not be sold or leased by the tenant &^^' ^^^ ' for life, without the consent of the trustees of the settlement, or an order of the Court [dd). {dd) Where the tenant for life, who was in iU-health and resided permanently elsewhere, was about to sell the whole estate, which was in proximity to a large town, so that the bulk of it could not be sold advantageously without the mansion house and grounds, it was h^d a proper case for selling the house [Se Srown's Will, 27 C!h. D. 179). As to service, see S. L. A. Rules, r. 4, infra. Streets and Open Spaces. [Sect. 16 authorises the tenant for life on a sale or grant for building purposes or a building lease to lay out any part of the settled estate for streets, open spaces, &c., for the benefit of the residents on the settled land.] Surface and Minerals apart. [Sect. 17 authorises separate dealing with the surface and the minerals, with or without a grant or reservatiou of wayleaves. See Re Duke of Newcastle, 24 Ch. D. 129.] Mortgage. [Sect. 18 authorises tte raising of money for equality of exchange, &e., by way of mortgage ; the money to be capital money arising under the Act.] Undivided Share. [Sect. 19 empowers the tenant for life of an undivided share to concur in the exercise of any power.] Conveyance. [Sect. 20 relates to the completion of any sale, lease, exchange, &c., by conveyance, &c.] VI. — Ihtestment oe other Application oe Capital Trust Money. 21. Capital money arising under this Act, subject to payment of Capital money claims properly payable thereout, and to application thereof for any ^egtment special authorized object for which the same was raised, shall, when &o. by trustees receiyed, be invested or otherwise applied wholly in one, or partly °^ ° • in one and partly in another or others, of the following modes (namely) : (i.) In investment on Government securities, or on other securities on which the trustees of the settlement are by the settlement or by law authorized to invest trust money of the settlement, or on the security of the bonds, mortgages, or debentures, or in the purchase of the debenture stock, of any railway company in Great Britain or Ireland incorporated by special Act of Parliament, and having for ten years next before the 144 SETTLED LAND ACT, 1882. 45 & 46 Vict, o. 38, B. 21. Investment on debenture stock. Ilegulations respecting investment, date of investment paid a dividend on its ordinary stock or shares, witli power to vary the investment into or for any other such securities (e) : (ii.) In discharge, purchase, or redemption of incumhrances aflecting the inheritance of the settled land, or other the whole estate the subject of the settlement, or of land-tax, rentcharge in lieu of tithe. Crown rent, chief rent, or quit rent, charged on or payable out of the settled land (/) : (iii.) In payment for any improvement authorized by this Act : (iv.) In payment for equality of exchange or partition of settled land : (v.) In purchase of the ffeignory of any part of the settled land, being freehold land, or in purchase of the fee simple of any part of the settled land, being copyhold or customary land: (vi.) In purchase of the reversion or freehold in fee of any part of the settled land, being leasehold land held for years, or life, or years determinable on life : (vii.) In purchase of land in fee simple, or of copyhold or cus- tomary land, or of leasehold land held for sixty years or more unexpired at the time of purchase, subject or not to any exception or reservation of or in respect of mines or minerals therein, or of or in respect of rights or powers relative to the working of mines or minerals therein, or in other land : (viii.) In purchase, either in fee simple, or for a term of sixty years or more, of mines and minerals convenient to be held or worked with the settled land, or of any easement, right, or privilege convenient to be held with the settled land for mining or other purposes : (ix.) In payment to any person becoming absolutely entitled or empowered to give an absolute discharge : (x.) In payment of costs, charges, and expenses of or incidental to the exercise of any of the powers, or the execution of any of the provisions, of this Act : (xi.) In any other mode in which money produced by the exercise of a power of sale in the settlement is applicable thereunder. («) Money bequeathed to trustees to be laid out in the purchase of land to be settled in strict settlement may be invested in debenture stock (JJe Mackenzie, 23 Ch. D. 750). The Court will not dispense with evidence that the company has paid the dividend on its ordinary stock {Se Syron, 31 W. E. 817). See S. L. A. Rules, r. 12, infra. (/) Sub-section 2 must be read thus : "In discharge of incumbrances afiecting the inheritance of the settled land which is sold, or any other land which is the subject of the settlement." [Re Chaytor, 25 Ch. D. 661). The word " incum- brances" in sect. 21 does not include terminable charges, such as those created under the Improvement of Land Act, 1864, and sinular statutes {Me KnateMntll, 27 Ch. D. 349). 22. — (1.) Capital money arising under this Act shall, in order to its being invested or applied as aforesaid, be paid either to the trustees SETTLED LAND ACT, 1882. 14o of the settlement or into Court, at tlie option of the tenant for life, 45 &; 45 viot. and shall be invested or applied hy the trustees, or under the direction °- 38, s. 22. of the Court, as the ease may he, accordingly. devolution, (2.) The investment or other apphcation by the trustees shall be and income of made according to the direction of the tenant for life, and in default ' thereof, according to the discretion of the trustees, but in the last- mentioned case subject to any consent required or direction given by the settlement with respect to the investment or other application by the trustees of trust money of the settlepaent ; and any investment shall be in the names or under the control of the trustees. (3.) The investment or other application under the direction of the Court shall be made on the application of the tenant for life, or of the trustees. (4.) Any investment or other application shall not during the life of the tenant for life be altered without his consent. (5.) Capital money arising under this Act whUe remaining uninvested or unapplied, and securities on which an investment of any such capital money is made, shall, for all purposes of disposition, transmission, and devolution, be considered as land, and the same shall be held for and go to the same persons successively, in the same manner and for and on the same estates, interests, and trusts, as the land wherefrom the money arises would, if not disposed of, have been held and have gone under the settlement. (6.) The income of those securities shall be paid or appHed as the income of that land, if not disposed of, would have been payable or applicable under the settlement. (7.) Those securities may be converted into money, which shaU. be capital money arising under this Act. 23. Capital money arising under this Act from settled land in Investment England shall not be applied in the purchase of land out of England, England, unless the settlement expressly authorizes the same. [Sect. 24 directs how the land acquired by purchase, or in exchange, or on partition, ia to be made subject to the settlement.] VII. — ^Impeotements. Improvements with Capital Trust Monet/. 25. Improvements authorized by this Act are the making or exeou- Description of tion on, or in connection with, and for the benefit of settled land, of ^f^oW by any of the following works, or of any works for any of the following Act. purposes, and any operation incident to or necessary or proper in the execution of any of those works, or necessary or proper for carrying into effect any of those purposes, or for securing the fuU benefit of any of those works or purposes (namely) : (i.) Drainage, including the straightening, widening, or deepening of drains, streams, and watercourses : (ii.) Irrigation ; warping : M. ^ 146 SETTLED LAND ACT, 1882. 45 & 46 Vict, u. 38, 8. 25. Approval ty Laud Com- missioners of scheme far improTement and payment theieon. ^(iii.) Drains, pipeB, and machinery for supply and distribution of sewage as manure : (iv.) Embanking or weiring from a river or lake, or from the sea, or a tidal water : (v.) Groynes ; sea walls ; defences against water : (vi.) Inclosing ; straightening of fences ; re-division of fields : (vii.) Eeolamation ; dry warping : (viii.) Parm roads; private roads; roads or streets in villages or towns : (ix.) Clearing ; trenching ; planting : (x.) Cottages for labourers, farm-servants, and artisans, employed on the settled land or not : (xi.) Farmhouses, offices, and outbuildings, and other buildings for farm purposes : (xii.) Saw-mills, scutch-mills, and other mills, water-wheels, engine-houses, and kUns, which will increase the value of the settled land for agricultural purposes or as woodland or otherwise : (xiii.) Eeservoirs, tanks, conduits, watercourses, pipes, weUs, ponds, shafts, dams, weirs, sluices, and other works and machinery for supply and distribution of water for agricultural, manu- facttiring, or other purposes, or for domestic or other consumption : (xiv.) Tramways ; railways ; canals ; docks : (xv.) Jetties, piers, and landing places on rivers, lakes, the sea, or tidal waters, for facilitating transport of persons and of agricultural stock and produce, and of manure and other things required for agricultural purposes, and of minerals, and of things required for mining purposes : (xvi.) Markets and market-places : (xvii.) Streets, roads, paths, squares, gardens, or other open spaces for the use, gratuitously or on payment, of the public or of individuals, or for dedication to the public, the same being necessary or proper in connexion with the conversion of land into bmlding land : (xviii.) Sewers, drains, watercourses, pipe-making, fencing, paving, brick-making, tile-making, and other works necessary or proper in connexion with any of the objects aforesaid : (xix.) Trial pits for mines, and other preliminary works necessary or proper in connexion with development of mines : (xx.) Reconstruction, enlargement, or improvement of any of those works. 26. — (1.) Whore the tenant for Hfe is desirous that capital money arising under this Act shall be applied in or towards payment for an improvement authorized by this Act, he may submit for approval to the trustees of the settlement, or to the Court, as the case may require, a scheme for the execution of the improvement, showing the proposed expenditure thereon. SETTLED LAND ACT, 1882. 147 (2.) "Where the capital money to he expended is in the hands of 45 & 46 viot. trustees, then, after a scheme is approved hy them, the trustees may >'• 38, o. 26. ^Pply that money in or to-wards payment for the whole or part of any work or operation comprised in the improvement, on — (i.) A certificate of the Land Commissioners certifying that the ■work or operation, or some specified part thereof, has been properly executed, and what amount is properly payable hy the trustees in respect thereof, which certificate shall be con- clusive in favour of the trustees as an authority and discharge for any payment made by them in pursuance thereof ; or on (ii.) A like certificate of a competent engineer or able practical surveyor nominated by the trustees and approved by the Commissioners, or by the Court, which certificate shall be conclusive as aforesaid ; or on (iii.) An order of the Court directing or authorizing the trustees to so apply a "specified portion of the capital money. (3.) Where the capital money to be expended is in Court, then, after a scheme is approved by the Court, the Court may, if it thinks fit, on a report or certificate of the Commissioners, or of a competent engineer or able practical surveyor, approved by the Court, or on such other evidence as the Court thinks sufiicient, make such order and give such directions as it thinks fit for the application of that money, or any part thereof, in or towards payment for the whole or part of any work or operation comprised in the improvement {ff). (ff) This section is not retrospective ; see Ee KnatchhuU, 27 Ch. D. 349, cited in note (/) to sect. 21, ante, p. 144. [By sects. 27, 28, and 29, the tenant for life may join or concur with any other person in executing any improvement authorized by the Act, or contributing to the cost thereof, and is bound to maintain and repair and keep insured every such improvement, and is not to be liable for waste in executing or repairing any such improvement.] [Sect. 30 extends sect. 9 of the Improvement of Land Act, 1864.] Viil. — Contracts. 31. [Sub-sects. 1 and 2 empower the tenant for life to contract for sale, partition. Power for . lease, &o., such contracts to bind and enure for the benefit of the settled land.] tenant for life to enter into (3.) The Court may, on the application of the tenant for life, or of contracts, any such successor, or of any person interested in any contract, give directions respecting the enforcing, carrying into effect, varying, or rescinding thereof. [By sub-sect. 4 any preliminary contract under the Act for a lease is not to form part of the title to the lease.] IX. — MiSCIXLAlfEOrS Peovisions. 32. Where, under an Act incorporating or applying, wholly or in Application part, the Lands Clauses ConsoMation Acts, 1845, 1860, and 1869, or co^ufadir under the Settled Estates Act, 1877, or under any other Act, public, LandsClauses local, personal, or private, money is at the commencement of this Act ^^5°*^*' l2 148 SETTLED LAND ACT, 1882. 45 & 46 Vict, in Court, or is afterwards paid into Court, and is liable to he laid oi; 0. 38, 8. 32 . . ., . in ike purchase of land to be made subject to a settlement, then, i 8 & 9 Vict. addition to any mode of dealing therewith authorized by the Act undc 23 &'24 Vict, which the money is in Court, that money may be invested or applied a 0. 106. capital money arising under this Act, on the like terms, if any, resped 32 &^33 Viot. .^^ ^^^^^ ^^^ ^^j^g^ things, as nearly as circumstances admit, and (nol 40 & 41 Viot. -withstanding anything in this Act) according to the same procedure "■ ^*" as if the modes of investment or application authorized by this Ac were authorized by the Act under which the money is in Court (^r). (ff) See as to costs, Se Smlury, W. N. (1883) 116 ; 31 W. E. 784. The fun has been ordered to be paid to trustees appointed for the purposes of the Act (ii Wright, 24 Ch. D. 662 ; Ee Sarrop, 24 Ch. D. 717). Money paid into Court under the Lands Clauses Act, in respect of land belongin, tp the trustees of a charity without power of sale is money " liable to be laid ob in the purchase of laud to be made subject to a settlement," and may be investe as capital money arising under this Act (fie Byron, 23 Ch. D. 171). Application 33. Where, under a settlement, money is in the hands of trustees of nioney in g^j^^ jg liable to be laid out in the purchase of land to be made subiec hands of . , ,. . , j. j t at. trustees under to the settlement, then, in addition to such powers of dealing there powers of yn&i. as the trustees have independently of this Act, they may, at th option of the tenant for life, invest or apply the same as capital mone; arising under this Act. Application of 34. Where capital money arising under this Act is purchase mone; money paid -^^JA in respect of a lease for years, or Hf e, or years determinable oi reversion. life, or in respect of any other estate or interest in land less than th fee simple, or in respect of a reversion dependent on any such lease estate, or interest, the trustees' of the settlement or the Court, as th case may be, and in the case of the Court on the application of an; party interested in that money, may, notwithstanding anything in thi Act, require and cause the same to be laid out, invested, accumulated and paid in such manner as, in the judgment of the trustees or of th Court, as the case may be, will give to the parties interested, in tha money the like benefit therefrom as they might lawfully have ha( from the lease, estate, interest, or reversion in respect whereof thi money was paid, or as near thereto as may be (A). {h) Cf. sect. 74 of the Lands Clauses Act and notes thereto, ante, p. 33, auc sect. 37 of the Settled Estates Act, 1877. As to service on an application unde this section, see S. L. A. Kules, 1882, r. 4, infra. Cutting and 35, — (1.) Where a tenant for life is impeachable for waste in re and part of ' spect of timber (AA), and there is on the settled land timber ripe and fi proceeds to be for cutting, the tenant for life, on obtaining the consent of the trustee of the settlement or an order of the Court, may cut and sell tha timber, or any part thereof. (2.) Three fourth parts of the net proceeds of the sale shall be se aside as and be capital money arising under this Act, and the othe fourth part shall go as rents and profits. [hh] As to what trees are timber, see Sonywood v. Sonywood, 18 Eq. 306. Proceedings 36. The Court may, if it thinks fit, approve of any action, defence for protection > n ^ i SETTLED LAND ACT, 1882. - I49 petition to Parliament, parliamentary opposition, or other proceeding 45 & 46 Viet, taien or proposed to be taken for protection of settled land, or of any "• ^^' ^- ^^- action or proceeding taken or proposed to be taken for recovery of land or recovery of being or aUeged to be subject to a settlement, and may direct that or'd^med'^ any costs, charges, or expenses incurred or to be incurred in relation as settled. thereto, or any part thereof,, be paid out of property subject to the settlement (i ). (j) This section takes the place of sect. 17 of the Settled Estates Act, 1877, which is repealed by sect. 64 of this Act, infra. See Me De La Warr, 16 Ch. D. 587 ; He Twyford Abbey, 30 W. E. 268. 37. — (I.) "Where personal chattels are settled on trust so as to devolve Heirlooms, with land until a tenant in tail by purchase is born or attains the age of twenty-one years, or so as otherwise to vest in some person becoming entitled to an estate of freehold of inheritance in the land, a tenant for life of the land may sell the chattels or any of them. (2.) The money arisijig by the sale shall be capital money arising under this Act, and shall be paid, invested, or applied and otherwise dealt with in like manner in all respects as by this Act directed with respect to other capital money arising under this Act, or may be invested in the purchase of other chattels, of the same or any other nature, which, when purchased, shall be settled and held on the same trusts, and shall devolve in the same manner as the chattels sold. (3.) A sale or purchase of chattels under this section shall not be made without an order of the Court {j). (J) See -Be Brownie Will, 27 Ch. D. 179, where an order was made for sale with liberty for the tenant for lUe to bid. X. — Teustees. 38, — (1.) If at any time there are no trustees of a settlement within Appointment the definition in this Act {K), or where in any other case it is expedient, °f trustees by for purposes of this Act, that new trustees of a settlement be appointed, the Court may, if it thinks fit, on the application of the tenant for life or of any other person having, under the settlement, an estate or interest in the settled land, in possession, remainder, or otherwise, or, in the case of an infant, of his testamentary or other guardian, or next friend, appoint fit persons to be trustees under the settlement for purposes of this Act {V). Uc) Seeife Garneit Orme, 25 Ch. D. 595. \l) See Wheelwright v. Walker, 23 Ch. D. 752 ; 31 W. E. 363, cited in note {b) to 8. 2, ante, p. 141 ; Re Taylor, 31 W. E. 696 ; W. N. (1883) 95, cited in note to sect. 62, infra. The solicitor of the tenant for life ( Wheelwright v. Walker ; Ee Kemp, 24 Ch. D. 485), or the tenant for life himself {Ee Earrop, 24 Ch. D. 717), should not be appointed trustee. As to payment of the fund to trustees appointed for the purposes of the Act, see Me Wright, 24 Ch. D. 662 ; Me Sarrop, 24 Ch. D. 717. As to the title of the summons, see Me Parry, W. N. (1884) 43. The application to appoint new trustees is made by summons ; see Settled Land Act Eules, r. 2, infra ; and as to service, see ibid., r. 4. (2.) The persons so appointed, and the survivors and survivor of them, while continuing to be trustees or trustee, and, until the appoint- ment of new trustees, the personal representatives or representative 150 45 & 46 Viot. Number of trustees to act. Reference of differences - to Court. SETTLED LAND ACT, 1882. for the time being of the last surviving or continuing trustee, shall for purposes of this Act become and be the trustees or trustee of the settlement. 39. — (1.) Notwithstanding anything in this Act, capital money arising under this Act shall not be paid to fewer than two persons as trustees of a settlement, unless the settlement authorizes the receipt of capital trust money of the settlement by one trustee. (2.) Subject thereto, the provisions of this Act referring to the trustees of a settlement apply to the surviving or continuing trustees or trustee of the settlement for the time being. [By sect. 40 trustees' receipts are to be good discharges, and sects. 41, 42 and 43 contain usual provisions for the protection and reimbursement of trustees.] 44. If at any time a difference arises between a tenant for life and the trustees o:^ the settlement, respecting the exercise of any of the powers of this Act, or respecting any matter relating thereto, the Court may, on the application of either party, give such directions respecting the matter in difference, and respecting the costs of the application, as the Court thinks fit (w). (m) See for directions as to costs of sales, £e BecTc, 24 Ch. D. 608. As to service, see Settled Land Act Rules, r. 4, infra. [By sect. 45 a tenant for life intending to make a sale, exchange, partition, lease, mortgage or charge, is required to give notice to the trustees. It was held that a merely general notice of intention to sell, &o. was not sufficient (JJ« j^ay, 25 Ch. D. 464). See now sect. 5 of the Settled Land Act, 1884, i»/ra.] Regulations respecting payments into Court, appli- cations, &c. 39 & 40 Viot. c. 59. 44 & 45 Vict. 0. 68. XI. — CoTJBT ; Land Commissioiters ; Proceduke. 46. — (1.) All matters within the jurisdiction of the Court under this Act shall, subject to the Acts regulating the Court, be assigned to the Chancery Division of the Court. (2.) Payment of money into Court effectually exonerates therefrom the person making the payment. (3.) Every application to the Court shall be by petition, or by sum- mons at Chambers. (4.) On an application by the trustees of a settlement notice shall be served in the first instance on the tenant for life. (5.) On any application notice shall be served on such persons, if any, as the Court thinks fit. (6.) The Court shall have full power and discretion to make such order as it thinks fit respecting the costs, charges, or expenses of all or any of the parties to any application, and may, if it thinks fit, order that all or any of those costs, charges, or expenses be paid out of pro- perty subject to the settlement. (7.) General Eules for purposes of this Act shall be deemed Rules of Court within section seventeen of. the Appellate Jurisdiction Act, 1876, as altered by section nineteen of the Supreme Court of Judicature Act, 1881, and may be made accordingly (n). (8.) The powers of the Court may, as regards land in the County SETTLED LAND ACT, 1882. 151 Palatine of Lancaster, be exercised also by the Court of Chancery of 45 & 46 Viot. the County Palatine ; and Eules for regulating proceedings in that "• ^^' °- ^^' Court shall be from time to time made by the Chancellor of the Duchy of Lancaster, with the advice and consent of a Judge of the High ' Court acting in the Chancery Division, and of the Yice-ChanceUor of the County Palatine. (9.) General Eules, and Eules for the Court of Chancery of the County Palatine, may be made at any time after the passing of this Act, to take effect on or after the commencement of this Act (n). (10.) The powers of the Court may, as regards land not exceeding in capital value five hundred pounds, or in annual rateable value thirty pounds, and, as regards capital money arising xinder this Act, and securities in which the same is invested, not exceeding in amount or value five hundred pounds, and as regards personal chattels settled or to be settled, as in this Act mentioned, not exceediag in value five hundred pounds, be exorcised by any County Court within the district whereof is situate any part of the land which is to be dealt with in the Court, or from which the capital money to be dealt with m the Court arises under this Act, or in connexion with which the personal chattels to be dealt with in the Court are settled. (») For the rules made under this provision, see the Settled Land Act Rules, 1882, infra. 47. Where the Court directs that any costs, charges, or expenses be Payment of paid out of property subject to a settlement, the same shaU, subject gettled'pro- and according to the directions of the Court, be raised and paid out of perty. capital money arising under this Act, or other money liable to be laid out in the purchase of land to be made subject to the settlement, or out of investments representing such money, or out of income of any such money or investments, or out of any accumulations of income of land, money, or investments, or by means of a sale of part of the settled land iu respect whereof the costs, charges, or expenses are incurred, or of other settled land comprised in the same settlement and subject to the same limitations, or by means of a mortgage of the settled land or any part thereof, to be made by such person as the Court directs, and either by conveyance of the fee simple or other estate or interest the subject of the settlement, or by creation of a term, or otherwise, or by means of a charge on the settled land or any- part thereof, or partly in one of those modes and partly in another or others, or in any such other mode as the Court thinks fit. [Sects. 48 and 49 provide that the Enclosure Commissioners, the Copyhold Commissioners and the Tithe Commissioners shall constitute one body, to be styled the Land Commissioners for England ; and define their powers, &c.] SBy sect. 50 the powers under the Act of a tenant for life are not assignable, remain exerciseable by him notwithstanding any assignment, by law or other- wise, of his interest under the settlement ; and a contract not to exercise any of his powers under the Act is void.] [By sects. 51 and 52 any prohibition or limitation against the exercise of the powers is void, and no exercise of any power under the Act is to create a forfeiture. 152 SETTLED LAND ACT, 1882. 46 & 46 Vict. A tenant for life, in exercising any of the powers, is to be deemed a trustee for all 0.38,88.51-55. the persons entitled under the settlement (s. 53); a general protection is given to purchasers, &o. dealing in good faith (s. 54) ; and the powers and authorities conferred by the Act are to be exerciseable from time to time (s. 55).] Saving for 56. — (1.) Nothing in this Act shall take away, abridge, or prejur other powers, ^^pjg^jjy affect any power for the time being subsisting under a settle- ment, or by statute or otherwise, exerciseable by a tenant for life, or by trustees with his consent, or on his request, or by his direction, or otherwise ; and the powers given by this Act are cumulative. (2.) But, in case of conflict between the provisions of a settlement and the provisions of this Act, relative to any matter in respect whereof the tenant for life exercises or contracts or intends to exercise any power under this Act, the provisions of this Act shall prevail ; and, accordingly, notwithstanding anything in the settlement, the consent of the tenant for life shall, by virtue of this Act, be necessary to the exercise-by the trustees of the settlement or other person of any power conferred by the settlement exerciseable for any purpose provided for in this Act. (3.) If a question arises, or a doubt is entertained, respecting any matter within this section, the Court may, on the applicatidn of the trustees of the settlement, or of the tenant for life, or of any other person interested, give its decision, opinion, advice, or direction thereon (o). (o) See as to this section, Se Sm-rsSaden, W. N. (1883) 188 ; 32 W. E. 194, where an order had been made imder the Settied Estates Act, 1877, enabling the trustees to sell, but it had not been acted on ; Se Duke of Newcastle, 24 Oh. D. 129. See also sect. 6 of the Settled Land Act, 1884, infra. A tenant for life with leasing powers under a will became bankrupt. The trustee in bankruptcy presented a petition asking that the powers of leasing might be exercised by the trustees of the will ; it was suggested, but denied, that the tenant for life declined to do anything. Kay, J., held tiiat it would be improper to grant general leasiug powers to the trustees, and that the proper coiwse would be for the parties interested to come to the Court with a scheme, and show that it was for the benefit of the estate that some particular lease should be granted ; and then, if the tenant for life contumaciously refused to exercise his powers, the Court would know how to deal with the case ; and his lordship, with the consent of all parties, ordered the petition to stand over, with liberty to amend {Re Manael, W. N. (1884) 209). [By sect. 67, additional powers may be conferred by the settlement, and will be exerciseable as if conferred by the Act.] XIII. — ^Limited Ownebs Gkneraixt. Enumeration 58. — (1.) Each person as follows shall, when the estate or interest of UnSted"^ each of them is in possession {p) have the powers of a tenant for life owners, to under this Act, as if each of them were a tenant for life as defined in rfl^'a^Ifor tMs Act (namely): life. (i.) A tenant in tail, including a tenant in tail who is by Act of Par- liament restrained from barring or defeating his estate tail, and although the reversion is in the Crown, and so that the exercise by him of his powers under this Act shall bind the Crown, but not including such a tenant in tail where the land in respect whereof he is so restrained was purchased with SETTLED LAND ACT, 1882. 153 money provided by Parliament in consideration of public 45 & 46 Viot. services : "■ ^®' ^- ^^• (ii.) A tenant in fee simple, -with an executory limitation, gift, or disposition over, on failure of his issue, or in any other event (y) : (iii.) A person entitled to a base fee, although, the reversion is in the Crown, and so that the exercise by him of his powers under this Act shall bind the Crown : (iv.) A tenant for years determinable on life, not holding merely under a lease at a rent (r) : (v.) A tenant for the life of another, not holding merely under a lease at a rent : (vi.) A tenant for his own or any other life, or for years deter- minable on life, whose estate is liable to cease in any event during that life, whether by expiration of the estate, or by conditional limitation, or otherwise, or to be defeated by an executory limitation, gift, or disposition over, or is subject to a trust for accumulation of income for payment of debts or other purpose (r) : (vii.) A tenant iu tail after possibility of issue extinct : (viii.) A tenant by the curtesy : (ix.) A person entitled to the income of land under a trust or direction for payment thereof to him during his own or any other life, whether subject to expenses of management or not(«), or untU sale of the land, or until forfeiture of his interest therein on bankruptcy or other event. (2.) In every such case the provisions of this Act referring to a tenant for life, either as conferring powers on him or otherwise, and to a settlement, and to settled land, shall extend to each of the persons aforesaid, and to the instrument under which his estate or interest arises, and to the land therein comprised. (3.) In any such case any reference in this Act to death as regards a tenant for Ufe shall, where necessary, be deemed to refer to the determination by death or otherwise of sucb estate or interest as last aforesaid. {p) See JJ« Tarry, "W. N. (1884) 43. !q) See as to this sub-section, Se Morgan, 24 Ch. D. 114. r) See Se Sazle, 26 Ch. D. 428. (») A person may be " entitled to the income of land under a trust or direction for payment thereof to him during Ms life, subject to expenses of management," within this sub-section, although the estates are so heavily encumbered that he has never received anything, and is not likely to do so (Se Jones, 24 Ch. D. 683 ; affirmed, 26 Ch. D. 736). XTV. — ^Ikpants ; Mabbibd Women ; Lunatics. 59, Where a person, who is in his own right seised of or entitled Lifant abso- in possession to land, is an infant, then for purposes of this Act the ^o w^t*'*^^t land is settled land, and the infant shall be deemed tenant for life for life. thereof ((). (t) See Se Welti, 31 W. B. 764 ; "W. N. (1883) 111. 154 SETTLED LAND ACT, 1882. 45 & 46 Viot. c. 38, B. 60. Tenant for life, infant. Married woman, how to be affected. Tenant for life, lunatic. 60. "Where a tenant for life, or a person having the powers of a tenant for life under this Act, is an infant, or an infant would, if he were of full age, be a tenant for life, or have the powers of a tenant for life under this Act, the powers of a tenant for life under this Act may be exercised on his behalf by the trustees of the settlement, and if there are none, then by such person and in such manner as the Court, on the application of a testamentary or otiher guardian or next friend of the infant,- either generally or in a particular instance, orders (u). {«) See Se Duke of Newcastle, 24 Ch. D. 129 ; 31 W. E. 782 ; Se James, W. N. (1884) 172. In appointing trustees to sell an infant's estate the Court may autho- rize the sale to be made out of Court {Se Frice, 27 Ch. D. 552). 61. — (1.) The foregoing provisions of this Act do not apply in the case of a married woman. (2.) "Where a married woman who, if she had not been a married woman, would have been a tenant for life or would have had the powers of a tenant for life under the foregoing provisions of this Act, is entitled for her separate use, or is entitled under any statute, passed or to be passed, for her separate property, or as a feme sole, then she, without her husband, shall have the powers of "a tenant for life under this Act. (3.) "Where she is entitled otherwise than as aforesaid, then she and her husband together shall have the powers of a tenant for life under this Act. (4.) The provisions of this Act referring to a tenant for life and a settlement and settled land shall extend to the married woman without her husband, or to her and her husband together, as the case may require, and to the instrument imder which her estate or interest arises, and to the land therein comprised. (5.) The married woman may execute, make^ and do all deeds, in- struments, and things necessary or proper fop giving effect to the provisions of this section. ^ (6.) A restraint on anticipation in the settlement shall not prevent the exercise by her of any power under this Act. 62. "Where a tenant for life, or a person having the powers of a tenant for Ufe under this Act, is a lunatic, so found by inquisition, the committee of his estate may, in his name and on his behalf, under an order of the Lord Chancellor, or other person intrusted by virtue of the Queen's Sign Manual with the care and commitment of the custody of the persons and estates of lunatics, exercise the powers of a tenant for life under this Act ; and the order may be made on the petition of any person interested in the settled land, or of the committee of the estate («). (») Where there were no trustees of the settlement in existence it was considered that new trustees should be appointed before the powers of the Act could be exer- cised, and a petition by the committee of the tenant for life, who was a lunatic for power to grant a building lease of part of the settled property was directed to stand over for the purpose of appointing new trustees, with liberty to amend by stating the appointment of trustees,, and that they had been served with notice of the SETTLED LAND ACT, 1882, 155 petition (JRe Taylor, 31 W. R. 596 ; W. N. (1883) 95). The committee of a lunatic 45 & 46 Vict. tenant for life cannot give a valid notice under sect. 45 unless lie has obtained o. 38, u. 62. authority from the L.JJ. so to do {ReRatj, 25 Oh. D. 464). XV. — Settlement by -way of Trusts pob Sale. 63. — (1.) Any land, or any estate or interest in land, vhicli under Provision for or by virtue of any deed, will, or agreement, covenant to surrender, ^oTeU and^ copy of court roll, Act of Parliament, or other instrument or any num- re-invest in ber of instruments, whetlier made or passed before or after, or partly ^^'^°- before and partly after, tbe commencement of this Act, is subject to a trust or direction for sale of that land, estate, or interest, and for the application or disposal of the money to arise from the sale, or the income of that money, or the income of the land until sale, or any part of that money or income, for the benefit of any person for his life, or any other limited period, or for the benefit of tvro or more persons con- currently for any limited period (ic), and whether absolutely, or subject to a trust for accumulation of income for payment of debts or other purpose, or to any other restriction, shall be deemed to be settled land, and the instrument or instruments under which the trust arises shall be deemed to be a settlement ; and the person for the time being bene- ficially entitled to the income of the land, estate, or interest aforesaid until sale, whether absolutely or subject as aforesaid, shall be deemed to be tenant for life thereof ; or if two or more persons are so entitled concurrently, then those persons shall be deemed to constitute together the tenant for life thereof ; and the persons, if any, who are for the time being under the settlement trustees for sale of the settled land, or having power of consent to, or approval of, or control over the sale, or if under the settlement there are no such trustees, then the persons, if any, for the time being, who are by the settlement declared to be trustees thereof for purposes of this Act are for purposes of this Act trustees of the settlement. (2.) In every such case the provisions of this Act referring to a tenant for life, and to a settlement, and to settled land, shall extend to the person or persons aforesaid, and to the instrument or instruments under which his or their estate or interest arises, and to the land therein comprised, subject and except as in this section provided (that is to say) : (i.) Any reference in this Act to the predecessors or successors in title of the tenant for life, or to the remaindermen, or rever- sioners or other persons interested in the settled land, shall be deemed to refer to the persons interested in succession or other- wise in the money to arise from sale of the land, or the income of that money, or the income of the land, until sale (as the case may require), (ii.) Capital money arising under this Act from the settled land shall not be appHed in the purchase of land unless such applica- tion is authorized by the settlement in the case of capital money arising thereunder from sales or other dispositions of the settled 156 45 & 46 Viot. u. 38, B. 63. SETTLEB LAND ACT, 1882. land, but may, in addition to any otter mode of application authorized by this Act, be applied in any mode in wbicb capital money arising nnder the settlement from any such sale or other disposition is applicable thereunder, subject to any consent required or direction given by the settlement with respect to the application of trust money of the settlement. (iii.) Capital money arising under this Act from the settled land and the securities in which the same is invested, shall not for any purpose of disposition, transmission or devolution, be con- sidered as land unless the same would, if arising under the settle- ment from a sale or disposition of the settled land, have been so considered, and the same shall be held in trust for and shall go to the same persons successively in the same manner, and for and on the same estates, interests, and trusts as the same would have gone and been held if arising under the settlement from a sale or disposition of the settled land, and the income of such capital money and securities shall be paid or applied accordingly. (iv.) Land of whatever tenure acquired under this Act by purchase, or in exchange, or on partition, shaU. be conveyed to and vested in the trustees of the settlement, on the trusts, and subject to the powers and provisions which, under the settlement or by reason of the exercise of any power of appointment or charging therein contained, are subsisting with respect to the settled land, or would be so subsisting if the same had not been sold, or as near thereto as circumstances permit, but so as not to increase or multiply charges or powers of charging (a;). (w) See Allaway v. Oakley, W. N. (1884)67. (x) See the SetUed Land Act, 1884, ss. 6 & 7, and notes thereto, infra, p. 166. XVI. — BeptiatiS. Bepeal of 64.— (1.) The enactments described in the schedule to this Act are hereby enactments repealed. in schedule. (2.) The repeal by this Act of any enactment shall not afiect any right accrued or obligation incurred thereunder before the commencement of this Act ; nor shall the same affect the validity or invalidity, or any operation, effect, or consequence, of any instrument executed or made, or of anythmg done or suffered, or of any order made, before the commencement of this Act ; nor shaJl the same affect any action, proceeding, or thing then pending or uncompleted ; and every such action, pro- ceeding, and thing may be carried on and completed as if there had been no such repeal in this Act. XVn. — Ieelakd. [Sect. 65 relates only to Ireland.] SETTLED LAND ACT, 1882. 157 23 & 24 Viot. 0. 145. in paxt. 27 & 28 Viot. 0. 114. in part. 40 & 41 Vict. 0. 18. . . in part. THE SCHEDULE. Kepeaxs. An Act to give to trustees, mort- \ gagees, and others, certain I powers now commonly inserted > in part ; namely, — in settlements, mortgages, and I wills , J Parts I. and IV. (being so mucli of the Act as is not repealed by the Conveyancing and Law of Property Act, 1881). The Improvement of Land Act, 1864. .in part; namely, — Sections seventeen and eighteen : Section twenty-one, from "either by a party" to "benefice) or" (inclusive) ; and from "or if the land owner" to "minor or minors" (inclusive) ; and " or circumstance " (twice) : Except as regards Scotland. The Settled Estates Act, 1877 in part ; namely, — Section seventeen. 46 & 46 Viot. c. 38. I Section 64. EtTLES UNDEK THE SETTLED LaMB AcT, 1882. [The Kules as issued have no marginal notes.] 1. The expression " the Act " used in these rules means the Settled Definitions. Land Act, 1882. Words defined by the Act when used in these rules have the same meanings as in the Act. The expression " the tenant for life " includes the tenant for life as defined by the Act, and any person having the powers of a tenant for life under the Act. 2. All applications to the Court under the Act may be made by AppUoations summons in chambers : and if in any case a petition shall be presented *° ^ .* X X summons. without the direction of the judge, no further costs shall be allowed than would be allowed upon a simunons. 3. The forms in the appendix to these rules are to be followed as far Forms, as possible, with such modification as the circumstances require. All summonses, petitions, affidavits, and other proceedings under the Act are to be entitled according to Form 1 in the Appendix. 4. The persons to be served with notice of applications to the Cotirt Persons to be shall, in the first instance, be as foUows : — served. In the case of applications by the tenant for life under sects. 15 and 34, the trustees. In the ease of applications under sect. 38, the trustees (if any), and the tenant for life if not the applicant. In the case of applications under sect. 44, the tenant for life, or the trustees, as the case may be. No other person shall in the first instance be served. Except as hereinbefore provided where an application under the Act is made by 158 SETTLED LAND ACT RULES, 1882. Wliere no service lequired. Judge may direct service or dispense with service. Title of tenant for life to be verified by affidavit. Sales to be carried into effect out of Court. Orders, when to direct leases, &c. to be settled by the judge. Payment of capital money into Court. Evidence. any person otlier than tlie tenant for life, the tenant for life alone shall be served in the first instance. 5. Except in the cases mentioned in the last rule, applications by a tenant for life shall not in the first instance, .be served on any person. 6. The judge may require notice of any application under the Act to be served upon such persons as he thinks fit, and may give all necessary directions as to the persons (if any) to be served, and such directions may be added to or varied from time to time as the case may require. Where a petition is presented, the petitioner may, after the petition has been filed, apply by summons in chambers (Appendix, Form XXI 1 1.) for directions with regard to the persons on whom the petition ought to be served. If any person not already served is directed to be served with notice of an a;pplication, the application shall stand over generally, or until such time as the judge directs. The judge may in any particular case, upon such terms (if any) as he thinks fit, dispense with service upon any person upon whom, under these rules, or under any direction of the judge, any application is to be served. 7. It shall be sufficient upon any application under the Act to verify by affidavit the title of the tenant for life and trustees or other persons interested in the application unless the judge in any particular case requires further evidence. Such affidavit may be in the form or to the effect of Form No. VIII. ia the Appendix. 8. Any sale authorised or directed by the Court' under the Act, shall be carried into effect out of Court, unless the judge shall otherwise order, and generally in such manner as the judge may direct. 9. Where the Court authorises generally the tenant for Hfe .to make from time to time leases or grants for building or mining piirposes under section 10 of the Act, the order shall not direct any particular lease or grant to be settled or approved by the judge unless the judge shall consider that there is some special reason why such lease or grant should be settled or approved by him. Where the Court authorises any such lease or grant ia any particular case, or where the Court authorises a lease under section 15 of the Act, the order may either approve a lease or grant already prepared or may direct that the lease or grant shall contain conditions specified in the order or such condi- tions as may be approved by the judge at chambers without directing the lease or grant to be settled by the judge. 10. Any person directed by the tenant for life to pay into court any capital money arising under the Act may apply by summons at chambers for leave to pay the money into court. (Appendix, Forms IX., X., XI.) 11. The summons shall be supported by an affidavit setting forth — 1. The name and address of the person desiring to make the payment. 2. The place where he is to be served with.notice of any proceeding relating to the money. SETTLED LAND ACT RULES, 1882. 159 3. The amount of money to be paid into court and the account to the credit of which it is to he placed. 4. The name and address of the tenant for life under the settlement hy whose direction the money is to he paid into court. 5. The short particulars of the transaction in respect of which the money is payable. 12. The order made upon the summons for payment into court, Order may may contain directions for investment of the money on any securities ^^^8*^^!°" authorised by section 21, sub-section 1 of the Act, and for payment Testment. of the dividends to the tenant for life, either forthwith or upon pro- duction of the consent in writing of the applicant ; the signature to such consent, to be verified by the affidavit of a solicitor. But i£ the transaction in respect of which the money arises, is not completed at the date of payment into court, the money shall not, without the con- sent of the applicant, be ordered to be invested in any securities other than those upon which.cash under the control of the court may be invested. 13. Money paid into court under the Act shall be paid to an account, Title of to be entitled in the matter of the settlement, with a short description of the mode in which the money arises if it is necessary or desirable to identify it, and in the matter of the Act. (Appendix Forms IX., X., and XI.). 14. Any person paying into court any capital money arising under Costs of pay- the Act shall be entitled first to deduct the costs of paying the money ™ "*• into court. 15. In aU cases not provided for by the Act or these rules, the exist- Saymg of ing practice of the court as to costs and otherwise, so far as the same p^ct^f may be applicable, shall apply to proceedings under the Act. 16. The fees and allowances to solicitors of the court in respect to Solicitors' proceedings under the Act shall be those provided by the Rules of the ^llo^^'^oes. Supreme Court as to costs for the time being in force, so far as they are applicable to such proceedings. 17. The fees to be taken by the officers of the court in respect to Court fees, proceedings under the Act shall be those provided by the Rules of the Supreme Court as to court fees for the time being in force, so far as they are applicable to such proceedings. 18. These rules shall come into operation from and after the 31st Dateof eom- December, 1882. STulT''* 19. These rules may be cited as the Settled Land Act Eules, 1882. gj^^^^ j.j(.jg_ (Signed) SELBOENE, C. COLEEIDGE, L. 0. J. G. JESSEL, M. R. NATH. LINDLET, L. J. H. MANISTY, J. E. FEY, J. 160 SETTLED LAND ACT RULES, 1882. APPENDIX. EOEM I. TrruB OP PEOOEEDiuas. In the High Court of Justice, Chancery Division, Vice- Chancellor Bacon, or Mr. Justice Chitty, [or other Judge before whom the application is to be heardS] In the matter of the ' estate [or, of the timber upon the estate], situate at in the county of , [or, of the chattels], settled by a settlement made by an indenture dated the day of , and made between [or, by the WiU of dated or, as the case may be]. And in the matter of the Settled Land Act, 1882. FOBU II. EoBUAIi FJlHI 01' SUMUONS. Title as in Eorm I. Let all parties concerned attend at my chambers at the Boyal Courts of Justice on day, the day of 18 , at o'clock in the forenoon, on the hearing of an application — («.) On the part of A.B., the tenant for life [or, tenant in tail, or as the case may be, describing the nature of the applicant's estate"] under the aboTe-mentioned' settlement. Or, (b.) On the part of A.B., the tenant for life (pr, as the case may be) under the above-mentioned settlement an infant, by X.Y., his testamentary guardian [or, guardian appointed by order dated the , or next friend]. Or, (o.) On the part of CD. and E.F., the trustees of the above-mentioned settlement for the purposes of the above-mentioned Act. Or, {d.) On the part of G.S., the tenant for life in remainder [or, tenant in tail in remainder, or as the case may be, describing the applicant's interest] under the above- mentioned settlement subject to the life interest of A.B. [or as the case may be]. Or, («.) On the part of I.J., the purchaser of the lands [or, the timber upon the lands, or chattels, or as the case may be] settled by the above-mentioned settlement. Or, (/.) On the part of I. J., the lessee under a mining lease dated the 18 , granted under the powers of the above-mentioned Act of the mines and minerals under the lands settled by the above-mentioned settlement. Or, [g.) On the part of I. J., the mortgagee under a mortgage intended to be created under sect. 18 of the above-mentioned Act of the lands settled by the above-mentioned settlement. Or, (h.) On the part of K.Z., interested under the contract herein-after mentioned. Dated the day of 18 This summons was taken out by of , solicitor for the applicant. To (Add the names of the persons {if any) on whom the summons is to be served.) POBM III. StJMMONS UNBEB SeOT. 10 FOB G-BNEEAl LeASIKO PoWEBB. Title and formal parts as in Forms I. and II. a. or b. 1. That the applicant [or in the case of an infant that the said X.T. during the infancy of the said A.S.], and each of his successors in title [or in the ease of an infant, each of the successors in title of the said A.B.], being a tenant for life or having the powers of a tenant for life uiider the above-mentioned Act, may pursuant to sect. 10 of the said Act be authorised from time to time to make building [or mining] leases of the lands comprised in the said settlement for the term of years [or in perpetuity]- on the conditions specified in the said Act [or on other conditions than those specified in sects. 7 to 9 of the said Act]. 2. That the costs of this application may be directed to be taxed as between SETTLED LAND ACT RULES, 1882. 161 snwf /"'l''"®''*^ and that the same when taxed may be paid out of the property may be ivS^ ' settlement, and that for that purpose aU necessary cUreotions ,-r, ^i"'~'^^^ proposed conditions ought not, except in simple oases, to be set forth in tne summons. EOEM IV. Summons otdeb Sections 10 oe IS foe AuiHOEm to oeant a paetiottlae Lease ■WHEEK THE TbNANT FOE LiFE HAS ENTEEED INTO A CoNTEAOT. Title as in Porm I. J Formal parts as in Form II. a. or b. 1. That the condition^ contract, dated the 18 , and made between the applicant [<»• tiie said X.T.] of the one part and of the other part, for a I bmldmg or muung] lease to the said of the hereditaments therein mentioned isT^^.r™; ^^ ^^°^ ^^ conditions therein stated, may, pursuant to sect. 10 [or ISJ ot the above-mentioned Act be approved, and that the said A.B. [or X.T.I mav be authorised to execute a lease in pursuance of the said contract. 2. {Add application for costs as in Form III. 2.) FOEM V. SuMltONS TTNDEE SECTtONS 10 OE 15 FOE AuTHOEITY TO OEANT A PAETIOtTLAE LeASE WHEN NO CONTEAOT Tr*a BEEN ENTEBED INTO. Title as in Form I. Formal parts as in Form II. u. or b. 1. That the [building or mining] lease intended to be granted to of the lands [or of the mansion house, &c.], settled by the said settlement may, pursuant to sect. 10 [or 15] of the above-mentioned Act be approved, and that the applicant [or the said X.T.] may be authorised to execute the same. 2. {Add application for costs as i« Form III. 2.) FoEM VI. SuMMONa UNDEE Sechonb 15, 35, OE 37 FOE A Sale out op Oouet of the peingipai Mansion House, aud Dehesnes, oe of Timbee ob Chattels. Title as in Form I. Formal parts as in Form II. a. or i. 1. That the applicant [or in the case of an infant the said X.T.] maybe authorised to sell the principal mansion hoxise [or the timber ripe and fit for cutting] on the land [or the fomitnre and chattels] settled by the above-mentioned settlement in such manner and subject to such particulars, conditions, and provisions as he may think fit. 2. That the coats of this application may be taxed as between solicitor and client, and that CD. and E.F., the trustees of the said settlement, may be at liberty to pay the costs when taxed out of the proceeds of the said sale [or, in the case of timber, out of the three-fourths of the proceeds of the said sale to be set aside as capital money arising under the said Act], or if this Form is not applicable as in Form III. 2. FOEM VII. Summons unbee Sections 16, 35, oe 37 foe Sai i. -^ be bound by a majority) before it confirmed a scheme, in Re Bristol and North '-'"™18 Somerset Ry., 6 Eq. 448; but in Re Sotnerset and Dorset Ry., 18 W. E. 333, ^realtors. Stuart, V.-C., said that if a creditor came to oppose the confirmation, who could not show that his dissent was reasonable or based upon a due regard for his own interests, he would not regard the dissent of a creditor of that kind, but would confirm the scheme. In Re East and West Junction Ry. {ubi sup.) it was held that the assent of outside creditors was not wanted. In any case they ought not to be put in a better position by the scheme (Stevens v. Mid-Sants Rail. Co., 8 Ch. Z064). See also Re Manchester md Milford Ry., W. N. (1881), 121 ; Re Stafford Ry. W. N, (1872), 165, 174 ; 20 W. R. 921. As to unpaid vendors appearing on the petition and their costs, see Re Kington Ry., W. N. (1877), 33. Ord. 24 Jan. (l) The Order of Jan. 24, 1868, provides with reference to the petition for con- 1868. firmation of scheme, as follows : — Petition 15. Every petition for confirmation of a scheme shall be presented by the directors or the to be by major part of them. Such petition shall not set forth the scheme, but only refer thereto ; directors. 174 RAILWAY COMPANIES ACT, 1867. 30 & 31 Viot, and may he in the form M. 2, in the Zrd schedule hereto, with sueh mriations as the 0. 127, B. 17. cirmmstancea of the ease may require. Company not to appear. 24 Jan. 1868. Order under Eailway Act, 1867. The following is the form referred to : — No. 2. Petition to confirm Scheme. In the Matter of the Railway Company ; and in the Matter of the Railway Companies Act, 1867. Directors of the ahove-named company Company not to appear. Hearing of petition for confirmation after notice. Advertise- ment of peti- tion to con- firm scheme. Purther notice directed in chambers. Parties to he heard in opposition. The humble petition of Showeth That on the day of , the directors of -the above-named company filed in this Honourable Court a Scheme of Arrangement between the above-named company and their creditors. Tour petitioners therefore humbly pray that the scheme so filed as aforesaid may be confirmed by the Order of this Honour- able Court. And your petitioners will ever pray, &o. 16. The petitioners presenting such petition as aforesaid shall, for the purposes of such petition, be treated as representing the company, and the company shall not otherwise appear on the hearing of such petition. 17. Wlien any petition to confirm a scheme is presented, the directors shall apply to the judge in chambers to appoint the day on which the same is to come into the paper for hearing, such day not to be before the expiration of three weeks from tJie time of ttteh ' application, and shall cause a notice of the presentation thereof to be inserted as follows (that is to say) : (1) In the case of a company whose principal office is within ten miles from the General Fast Office in the "London Gaaette,^^ jmd in such two London daily morning newspapers as the judge m chambers shall direct. (2) In the case of any other company, in the ^^ London Gaisette,''' and in sueh two local newspapers circulating in the district where the principal office of such company is situate, as the judge in chambers shall direct. Sueh notice shall state the day on which the scheme was filed, and the day.on which the petition was presented, and the day on which the same is directed to come into the paper for hearing, and the name and address of the solicitor and London agent {if any) of the company, and may be in the form No. 3 in the 3rd schedule hereto, with such varia- tions as the circumstances of the case may require. The foUowiag is the form referred to : — In the Matter of the Railway Company, and In the Matter of the Railway Companies Act, 1867. Notice is hereby given that a petition was, on the day of 18 , pre- sented to the Lord Chancellor [or the Master of the Rolls] by the Directors of the above-named company, praying the confirmation of a Scheme of Arrangement between the said company and their creditors, filed in the Court of Chancery on the day of . And that the said petition is directed to be heard before the Vioe-Ohancellor Sir \or before the Master of the Rolls] on the day of , 18 , and any person whose interests are afEected by such scheme, and who may be desirous to oppose the making of an order for the confirmation thereof under the above Act, should enter an appearance at the Office of the Clerks of Records and Writs on or before the day of , 18 , and appear by him- self or counsel at the hearing of the said petition. And a copy of the scheme and petition will be furnished to any person requiring the same by the undersigned, or at the office of the company, at , on payment of the regulated charge for the same. A. and B., of [Agents for C. and D., of ], Solicitors for the Petitioners. 18. The, petition shall not come on to he heard until at least fourteen clear days after the insertion of such notice as aforesaid. Such notice shall, at least once in every entire weeh, reckoned from Sunday morning to Satv/rday evening, which shall have elapsed between the time of the first insertion tliereof, and the day on which such petition is directed to come into the paper for hearing, he again inserted in such two London or local newspapers as aforesaid on such day or days as the judge in chambers shall direct. 19. Any creditor, shareholder, or other party whose rights or interests are affected by such scheme, and who shall be desirous to be heard in opposition to the confirmation thereof, shall, at least two clear days before the day on which the petition for confirmation is directed to come into the paper for hearing, enter an appearance at the Office of the Clerks RAILWAY COMPANIES ACT, 1867. 175 of Secords and Writs ; and, in default of so doing, shall not he entitled to he heard, 30 & 31 Vict. unless hy the special leave of the Court. o. 127, s. 17. 20. Any person so entering an appearance shall he deemed to have suhmitted himself to the Jurisdiction of the Court as to the payment of costs and otherwise. Jurisdiction as to costs. Rules 21 — 28 of the Order of 24th. Jan. 1868, which related to the enrolment of Enrolment. the Scheme, -were annulled by R. S. C, April, 1880. See now as to enrolment, Ord. LXI. rr. 10, 11, infra. XVULI. Tlie scheine -vrlien confirmed shall be enrolled in tlie Enrolment of Court (m), and thencefortli the same shall he binding and effectual to ^° ®™®" all intends, and the proyisions thereof shall, against and in favour of the company and all parties assenting thereto or bound thereby, have the like effect as if they had been enacted by parliament. (m) An application by a judgment creditor to restrain a company from enrolling an order confirming a scheme was granted under the powers given by the 35th rule, post, p. 176 {Se Devon and Somerset Ey., 6 Eq. 615). XIX. Notice of the confirmation and enrolment of the scheme shaU Notice of m TT.i t ' ,1 r^ , t confirmation be published m the Ctazette. of scheme. XX. The company shall at aU times keep at their principal oflB.ce Company to printed copies of the scheme, when confirmed and enrolled, and shall ^^^? prmted r r ' > copies or seU. such copies to all persons desiring to buy the same at a reasonable scheme for price, not exceeding sixpence for each copy. ^^^®' If the company fail to comply with this provision they shall be liable Penalty for to a penalty not exceeding twenty pounds, and to a further penalty not exceeding five pounds for every day during which such failure con- tinues after the first penalty is incurred, which penalties shall be recovered and applied as penalties under " The Eailways Clauses Con- solidation Act, 1845," are recoverable and applicable. XXI. "Where a company whose principal oflfice is situate in England Provision for have a railway or part of a railway in Scotland the following provi- raUways or sions shall have effect : part in Soot- (1.) Any scheme under this Act shall be filed in the Court of Chancery* in England ; oaKcl; (2.) Where, after the filing of the scheme, any person who is not 1873,8.34(2). amenable to the jurisdiction of the Court of Chancery* in England brings any action against the company in Scotland, the Court of Session may, on the application of the company by petition in a summary way, sist, stay, or interdict the same on such terms as the Court thinks fit ; (3.) Notice of the filing of the scheme shall be published in the " Edinburgh Gazette," and after such publication no diligence against the property of the company in Scotland shall be available for any person who is not amenable to the jurisdiction of the Court of Chancery in England without the leave of the Court of Session, to be obtained on petition in a summary way. In this section the term " Court of Session " means either division of the Ooiirt of Session, or in time of vacation the Lord Ordinary oflBciating on the Bills. 176 HAIL WAY COMPANIES ACT, 1867. 30 & 31 Vict. XXII. The Lord Phancellor of Great Britain, with, the advice and "' ' ^' • assistance of the Lords Justices of the Court of Appeal in Chancery, General orders the Master of the EoUs, and the Vice-ChanceUors, or any two of those for regulation judges, and the Lord Chancellor of Ireland, with the advice and assist- Court of ance of the Lord Justice of Appeal in Chancery and the Master of the Chancery. Eolls, or one of them, may from time to time make general orders for the regulation of the practice of the Courts of Chancery in England and Ireland jespectively under this Act (?i). {«) The ofder of 24th January, 1868, provided as to the general practice under this Act as follows : — Orders in 33. All orders made m chamiers under " The Sailway Companies Act, 1867," shall lie chambers drawn up in chambers tmless specially directed to be drawn up by the registrar, and shall under the be entered in the same manner and in the same office as other orders drawn wp in chambers. Act. 34. In cases not expressly provided for by the said Act or by the rules of this order, the Greneral General Orders and practice of the Court {including the course of proceeding and practice practice '" '^^ judges' chambers, and the course of proceeding and practice as to rehearings before ap-plicable ^^^ """* j^9^, or before the Lord Chancellor or Lords Justices) shall, so far as such ' General Orders and practice are applicable and not inconsistent with the said Act or this order, apply to all proceedings in the Court of Chancery under the said Act. Powers of 35. The power of the Cowrt a/nd of the judge in chambers to enlarge or abridge the time judge in for doing any act or taking any proceeding, to adjourn or review any proceeding, and to ohamhers. give amy direction^ as to the course of proceeding , shall be the same in proceedings in Chancery under the said Act, as in proceedings under the ordinary jurisdiction of the Court. Order to be 38. The general interpretation clauses contained in the Consolidated Orders of the Court a Greneral of Chancery shall extend and apply to this order, and this order shall be deemed one of the Order. General Orders of the Court. Date of order. ^^- ^^^^ order shall come into operation on Monday the 3rd day of February, 1868, and shall apply to all schemes filed under the said Act, and to all proceedings in Chancery to be had vmder the same Act, provided always, that all proceedings taken under the said Act before this order shall have come into operation shall have the same validity as they would have had if this order had not been made. Loan Capital. Priority of XXIII. AH money borrowed or to he borrowed hy a company on mortgage or hond or debenture stock under the provisions of any Act ' authorizing the borrowing thereof shall have priority against the company and the property from time to time of the company over all other claims on account of any debts incurred or engagements entered into by them after the passing of this Act : Provided always, that this priority shall not afEect any claim against the company in respect of any rentcharge granted cr to be granted by them in pursuance of "The Lands Clauses Consolidation Act, 1845," or " The Lands Clauses Consolidation Acts Amendment Act, 1860," or in respect of any rent or sum reserved by or payable under any lease granted or made to the company by any person in pursuance of any Act relating to the com- pany which is entitled to rank in priority to, or pari passu with, the interest or dividends on the mortgages, bonds, and debenture stock ; nor shall anything hereinbefore contained affect (o) any claim for land- taken, used, or occupied by the company for the purposes of the rail- way, or injuriously affected by the construction thereof, or by the exercise of any powers conferred on the company. (o) These words only relate to the contents of this section, and landowners are not exempted from the operation of the previous clauses of the Act [Re Cambrian Ey. Co., 3 Ch. 278). EAILWAY COMPANIES ACT, 1867. 177 _ [Sects. 2t — 26 relate to the issue of railway debenture stoot, subject to the pro- 30 & 31 Vict visions of the Companies Clauses Act, 1863. By sects. 27—29, raUwaycompanies o 127 may issue shares or stock at a discount. Sect. 30 relates to the audit of railway ss. 24—37. accounts. By sects. 31 — 35 the provisions as to abandonment of raUwavs under stat. 13 & H Vict. c. 83, are amended, and it is provided that on the abandonment Sections of a railway being authorized, the parliamentary deposit shaU be paid out to the XXIV.— persons who would have been entitled to it if the railway had been opened ; see XXXVII 9 & 10 Vict. 0. 20, p. 49, ante. Sect. 36 amended sect. 85 of 8 & 9 Vict. c. 18 ; see marginal note, p. 46, ante. Sect. 37 relates to the costs of arbitrations as to lands taken under the Lands Clauses Act.] JUDGMENT ACT, 1864. 27 & 28 vict. 0. 112. 27 & 28 VICT. Cap. 112. An Act to amend the Law relating to future Judgments, Statttte-i, and Recognizances. [29th July, 1864.] Whereas it is desirable to assimilate the la-w affecting freehold, copyhold, and leasehold estates to that affecting purely personal estates in respect of future judgments, statutes, and recognizances (o) : Therefore be it enacted, &c. as foUows : — (a) This must mean common law recognizances, and not those which are entered into by persona who give security to the Court of Chancery (now the Chancery Division), for the latter are never registered but enrolled. See Ksher on Mortgages, 111, note (0). I. No judgment, statute, or recognizance to he entered up after the Future judg- passing of this Act shall affect any land (of whatever tenure) until ^^^^' ^-y such land shall have been actually delivered in execution {h) by virtue land until of a writ of elegit or other lawful authority (c) in pursuance of such ^^^^ delivered . ° . ./ \ / JT jn execution, judgment, statute, or recognizance. (b) These words mean that in the case of lands as in the case of chattels no Hen Priority of is obtained by a delivery of the writ, unless followed by a return to the writ and judgments actual execution, but the question of priority of judgments inter se, depends on the inter se. date at which the active step of delivery of the writ to the sherifi was taken {Champneya v. Bin-land, 19 W. R. 148 ; JRe Cowhridge Ry., 6 Eq. 413 ; Gtiest v. Coio- bridge Ry., 6 Eq. 619; Se Bailey, W. N. (1869), 43 ; Se Duke of Newcastle, 8 Eq. 700 ; Earl of Cork v. Susaell, 13 Eq. 210). («) The Act does not apply to an interest which cannot be taken in execution, e. g., Interest a remainder (Se South, 9 Gh. 369). If there is any obstacle, e.g., if the debtor's which cannot interest is an equity of redemption, the creditor's remedy was to institute an action be taken in to remove the obstacle {Se Cowhridge Sy., 5 Eq. 413 ; Thornton y. Finch, 4 Giflf. 515 ; execution. Guest V. Cowhridge Sy., 6 Eq. 619 ; 17 W. R. 7 ; Beckett v. Buckley, 17 Eq. 435 ; j-auitable Satton V. Maywooi, 9 Ch. 229 ; WelU v. Xilpin, 18 Eq. 298). interests Under the present practice it is not necessary to institute a fresh action for the purpose; and "equitable execution," as it is called, may be obtained by the appointment of a receiver in the original action {Anglo-Italian Bank v. Bavies, 9 Ch. D. 275 ; Smith v. Cowell, 6 Q. B. D. 75 ; Salt v. Cooper, 16 Ch. D. 644) ; who may be appointed even after final judgment {Salt v. Cooper). Nor is it necessary now for the creditor previously to sue out an elegit where the interest is not extendible {Ex parte Evans, Se Watkins, 11 Ch. D. 691 ; 13 Ch. D. 252) ; and a receiver may be appointed of debts and sums of money to which garnishee proceed- ings are not applicable {Westhead v. Siley, 25 Ch. D. 413). A receiver may also be appointed of the separate estate of a married woman at the instance of a solicitor whose bill she had taxed under the Solicitors Act, 1843 {Se Peace, 24 Ch. D. 405). JUDGMENT ACT, 1864. 27 & 28 Vict. 0. 112, s. 1. Sequestration. Right of judgment creditor to redeem. Interpreta- tion of terms. Creditor to whom land delivered in execution entitled to obtain sum- mary order. "Actually delivered in execution." Sale at in- stance of judgment creditor. Railway Com- panies Act, 1867. As to the power' of the Court to direct inquiries hefore appointing a receiver, see Ord. L. r. 15a, infra. Where persona holding the debtor's land under a voluntary conveyance^ yielded their claims and gave up possession to sequestrators, this was held delivery in execution by lawful authority (Re Rush, 10 Eq. 442). As to the judgment creditor's right to redeem prior incumbrances, see Mildred v. Austin, 8 Eq. 220. n. In the construction of this Act the term " judgment " shall be taken to include registered decrees, orders of Courts of Equity and Bankruptcy, and other orders having the operation of a judgment ; and the term " land " shall he taken to include all hereditaments, corporeal or incorporeal, or any interest therein ; and the term "debtor" shall be taken to include husbands of married women, assignees of bankrupts, committees of lunatics, and the heirs or devisees of deceased persons. [By sect. 3 every writ or other process of execution of any such judgment, statute or recognizance, by virtue whereof any land shall have been actually delivered in execution, shall be registered in the name of the debtor. See 23 & 24 Vict. o. 38, s. 2, p. 104, ante. The registration may be made before the return to the writ, Ghampmys v. Bw/rland, 19 W. E.. 148.] IV. Every creditor to whom (d) aisyj land of his debtor shall have been actually delivered in execution ((^c?) by virtue of any such judg- ment, statute, or recognizance, and whose writ or other process of execution shall be duly registered, shall be entitled forthwith, or at any time afterwards while the registry of such writ or process shall continue in force, to obtain from the Court of Chancery, upon petition in a summary way, an order for the sale (e) of his debtor's interest in such land, and every such petition may be served upon the debtor only ; and thereupon the Court shall direct aU such inquiries to be made as to the nature and particulars of the debtor's interest in such land, and his title thereto, as shall appear to be necessary or proper ; and in making such inquiries, and generally in carrying into effect such order for sale, the practice of the said Court with respect to sales of real estates of deceased persons for the payment of debts shall be adopted and followed, so far as the same may be found conveniently applicable (/). Id) A creditor who had obtained an order in an administration suit against a defendant for payment of money into Cowrt, which order had been enforced by the sequestration of tiie Court, was held not to be within the section, the land having been delivered in execution not to him but to the Court [Johnson v. Burgess, 15 Eq. 398). (dd) That is, "delivered in execution"; see Angh-Itaiian Bank y. Davies, 9 Ch. D. p. 283. [e) The section applies only to judgments entered up after the passing of the Act, 29th July, 1864 ; see sect. 1, and Re Isle of Wight Ferry Co., 34 L. J. Ch. 194 ; 11 Jur. N. S. 279. A railway company's lands may be ordered to be sold under the section ; but the Court will not order a sale if the debtor's interest is not of a saleable nature, but will direct inquiries [Re Bishop's Waltham Ry. Co., 2 Ch. 382 ; Gardner v. Zondon, Chatham and hover Ry. Co., ibid. 386) ; and see now 30 & 31 Vict. o. 127, ante, p. 167, protecting the rolling stock and plant of railways from execution, and autiio- rising railway companies, who are unable to meet their engagements, to file schemes of arrangement, and after filing such scheme to apply for stay of actions, suits, and executions. JUDGMENT ACT, 1864. jtq f/]. J°' ^o™ of inquiries in the case of lands belonging to a tailway company, 27 & 28 Vict rn W W'^f«?lN-^"",?i-^r"*"-^2/- Co., 2 Eq. 262; and lie Fcntnor Hariolr L 112, c 4 Co., W.N. (1866 , 9; 13 L. T. 793; and for form of inquiries in ordinary oases, ' Bee^ parte Clark G N. E. 335, and compare Seton, U40. Where surplus lands Form of Co 9^ 668^ ^ '^ ^^ *^'' ^ ^'^^ '^^ ordered -without inquiries {Se Colne Valley inquiry. V . If it ahaU appear on making such inquiries that any other debt Where there due on any judgment, statute, or recognizance is a charge on such oreditora land, the creditor entitled to the benefit of such charge (whether prior notice of' sale or subsequent to the charge of the petitioner) shall be served with ^^l ^^^ notice of the said order for sale, and shall after such service be bound thereby, and shall be at liberty to attend the proceedings under the same, and to have the benefit thereof ; and the proceeds of such sale shall be distributed among the persons who may be found entitled thereto, according to their respective priorities {g). (g) See Guest v. Cowiridge Ry., 5 Eq. 413 ; Ee Duke of Neioeastle, 8 Eq. 700. yi. Every person claiming any interest in such land through or Parties claim- under the debtor, by any means subsequent to the delivery of such j°^ interest land in execution as aforesaid, shall be bound by every such order for debtor bound sale, and by all the proceedings consequent thereon. ^7 °^^^^ for VII. This Act shall not extend to Ireland. -g ,' , , Act. PAETITION ACT, 1868. 3i & 32 vict. 0. 40. 31 & 32 VICT. Cap. 40. An Act to amend the Law relating to Partition. [25th June, 1868.] Be it enacted, &c. as foUows : I. This Act may be cited as the Partition Act, 1868. Short title. n. In this Act the term " the Court " means the Court of Chancery As to the in England (a), the Court of Chancery in Ireland, the Landed Estates q^j^ ^ Court in Ireland, and the Court of Chancery of the County Palatine of Lancaster, within their respective jurisdictions. (a) Now the Chancery Division of the High Court (Jud. Act, 1873, sect. 34 The Court. (2), infra. m. In a suit for partition where, if this Act had not been passed, a Power to decree for partition might have been made (oa), then if it appears to ^ °^gj. ^ °jq the Court that, by reason of the nature of the property to which the instead of suit relates, or of the number of the parties mterested or presumptively ^'^'on. interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a n2 180 PARTITION ACT, 1868. 31 & 32 Vict. c. 40, o. 3. " Parties intereisted." jJ^Act retro- Bpeotive. Sale of interest subject to executory devise over. Sale of part. Sale, where ordered. Form of order. distribution of tte proceeds would be more beneficial for the partif interested than a division of the property between or among them, ti Court may, if it thinks fit, on the request of any of the partie interested (J), and notwithstanding the dissent or disability of an others of them, direct a sale of the property accordingly, and ma give all necessary or proper consequential directions {bb). (oa) See Siffga v. Peacoch, 20 Ch. D. 200 ; 22 Ch. D. 284, and Boyd v. Allen, 5 Ch. D. 622 ; 31 W. E. 644, cited in note (c) to sect. 4; Miles v. Jarvis, W. !■ (1883),. 203. (i) Incumbrancers upon the shares of persons entitled in conmion to real estai are parties interested within the section {Davenport v. King, W. N. (1883), 133 31 W. E. 911). (bb) As to the Act being retrospective, see Lys v. Lys, 7 Eq. 126 ; Fryory. Fry or. 19 Eq. 595. Where property had been left to three persons, subject to an executory devis over, if all died without issue, 'the Court directed a sale, subject to the executor gift over {Groves v. Carb^t, 29 L. T. 129; W. N. (1873), 29). A decree was made for sale of part of a property and partition of the rest {RoebiM V. Ohadebet, 8 Eq. 127). This section gives the Court power to sell where for any reason it thinks a saJ would be more beneficial than a partition ; and the sale may be directed on tb application of any person interested {Drinkwater v. Eatcliffe, 20 Eq. 528). Th power is discretionary and is not controlled by the provisions of sect. 5 {Gilbert i Smith, 11 Ch. I>. 78, afBrmed, nam. Fitt v. Jones, 5 App. Gas. 651). The ten "beneficial" means beneficial in a pecuniary sense {Drinkwater v. FatcUffe) ; se also Allen v. Allen, 21 TV. R. 842. A sale was directed where the propert consisted of a farnihouse and buildings and thirty acres of land divisible int thirty-six shares {Drinkwater v. Eateliffe) ; and so, where houses were divisible int 336 parts, and the owners of 63 parts requested a sale {Gilbert v. Smith, afBrmet nam. Fitt v. Jones). But a sale must be more beneficial for all parties intereste {Corporation of Stiddersjield-v. Jaoomb, W. N. (1874), 80; Fleming v. Crouch, W. 1> (1884), 111). If the plaintiff claims a sale, he should allege in his pleadings that it will be moi beneficial than a partition {Fvaiis v Fvans, W. N. (1883), 48 ; 31 W. R. 495). For form of order see Seton, 1005, No. 3 ; as varied in Sykes v. Sehojield, 1 Ch. D. 629 ; Fe Sardinum, 16 Ch. D. 360 ; Waits v. Bingley, 21 Ch. D. 674 ; 3 W. R. 698. Sale on application of certain proportion of parties interested. What discre- tion the Court has under this section. IV. In a suit for partition, where, if this Act had not been passed a decree for partition might have been made, then if the party o parties interested, individually or collectively, to the extent of on moiety or upwards in the property to which the suit relates, reques the Court to direct a sale of the property and a distribution of th proceeds instead of a division of the property between or among th parties interested, the Court shall, unless it sees good reason to th contrary, direct a sale of the property accordingly, and give all neces sary or proper consequential directions (c). (c) ' ' The 4th section seems to me to be perfectly distinct from the 3rd, for wherea " the 3rd section in terms applies only where the Court is satisfied that a partitio " is inconvenient and not beneficial for the parties, there is no such condition in " serted in the 4th section; and whereas under the 3rd section a discretionar " power was given to the Court to order a sale, if it thought a sale more beneficis ' ' than a partition, the 4th section makes it imperative on the Court, in a certai " state of circumstances, to order a sale, and if less than half desire a partition, the ' ' the half requiring the sale shall have the preponderating voice, and the Com " shall be bound to give them a sale wholly irrespective of the 3rd section. Bu " stUl there is a certain discretion left to the Court, so that the Court can refuse " sale where it is manifestly asked through vindictive feeUng, or is on any otht " ground unreasonable." — Fer Lord Batherley, in Femberton v. Barnes, 6 Ch. 68{ See also Ia/s v. Ijys, 7 Eq. 126 ; Saxlon v. liartUy, W. N. (1879), 94 ; 27 W. R. 6i; where a sale was refused ; Wilkinson v. Jobems, 16 Eq. 14, where it was held ths PARTITION ACT, 1868. Ig]^ though the owner of one moiety of property was yearly tenant of the whole, and 31 & 32 Vict, occupied it for commercial purposes, and also resided thereon, this was no sufficient u. 40, u. 4. reason against a sale under the section ; Houghton v. Gibson, "W. N. -(1877), 32 ; 46 L. J. Ch. 366 ; 25 W. R. 269 ; Rowe v. Gray, 5 Ch. D. 263, where it was held that • the fact that the income of an infant defendant was likely to he materially dimi- nished was not a good reason against a sale (but see Langmead v. Cockerton, W. N. (1877), 43 ; 2b W. R. 316) ; Forter v. lopes, 7 Ch. D. 358 ; Flemingy. Crouch, "W". N. (1884), 111. A married woman, tenant for life of a moiety for her separate use with remainder as she shall appoint, is an owner of that moiety within the section {^Parker v. Trigg, W. N. (1874), 27). Where there is a subsiiting trust for sale the Court has no jurisdiction under the Trust for Act at all, the property being money and not land {Biggs v. Peacock, 22 Ch. D. 284 ; sale. 20 Ch. D. 200) ; secus, where there is a mere power {Boyd v. Allen, 24 Ch. D. 622 ; 31 W. R. 544). See also Taylor v. Grange, 15 Ch. D. 165 ; 13 Ch. D. 223 ; Swaine V. Denby, 14 Ch. D. 326, where the testator had himseK fixed the time at which a sale was to take place, audit was held that the Court 'could not anticipate it. i^- V. In a suit for partition where, if this Act had not been passed, a Any party decree for partition might have been made, then if any party interested "fy '^^ ^°^ '■ ° . ' J r J gale unless in the property to Tyhich the suit relates requests the Court to direct a other parties sale of the property* and a distribution of the proceeds instead of a Purchase ,....,, share of party division of the property between or among the parties interested, the desiring sale. Court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions, and in case of such under- taking being given the Court may order a valuation of the share of the party requesting a sale in such manner as the Court thinks fit, and may give all necessary or proper consequential directions (c?). {d) The 3rd and 4th sections haying provided that a decree for sale shall be made Sale on when a sale is beneficial, or when persons entitled to more than a moiety of the pro- application perty ask for it, the 5th section is an extension, not a limitation, of those sections, of any party and provides that any party, plaintiff or defendant, may ask for and have a sale entitled, whether the Court considers it beneficial or not, unless the other parties interested undertake to purchase the applicant's share {Drinkwater v. Batcliffe, 20 Eq. 528 ; Gilbert v. Smith, 11 Ch. D. 78). If the other parties undertake to purchase the applicant's share, and so prevent the sale of the property as a whole, the applicant for the sale of the property as a whole may decline to sell his share, and may with- draw his application and ask for a partition {Williams v. Games, 10 Ch. 204). See, however. Lord Satherley's remarks as to the connection of ss. 3, 4, 5, 6, in Pember- ton v. Barnes, 6 Ch. 685. VI. On any sale under this Act the Court may, if it thinks fit, allow Authority for any of the parties interested in the property to bid at the sale, on such ^^^ ^^ ° ^ " terms as to non-payment of deposit, or as to setting ofE or accounting for the purchase-m6ney or any part thereof instead of paying the same, or as to any other matters, as to the Court seem reasonable (e). (e) The party having the conduct of the sale vriU not usually be aUowed to bid Leave to bid. ( Verrall v. Cathcart, W. N. (1879), 100 ; 27 W. R. 646) ; but under special circum- stances this may be permitted {Pennington v. Dalbiac, 18 W. R. 684) ; see also Wil- kinson T. Joberns, 16 Eq. 14 ; Houghton v. Gibson, W. N. (1877), 32 ; 25 W. R. 269 ; 46 L. J. Ch. 366. VII. Section thirty of the Trustee Act, 1850, shall extend and apply Application of to cases where, in suits for partition, the Court directs a sale instead of trustee Act. a division of the property (/). (/) See sect. 30 of the Tnistee Act, 1850, ante, p. 77, and note thereto. Sect. 1 182 PAETITION ACT, 1868. 31 & 32 Viot. 0. 40, s. 8. Application of proceeds of sale. Leases and Sales of Settled Estates Act, 1856. Sale out of Court. Judgment for sale, how far a conversion. Parties to partition suits. of the Trustee Extension Act, 1852, applies to sales under the Partition Acts, and is not limited to oases of persons under disability {Beckett v. Sutton, 19 Ch. D. 646). VIII. Sections twenty-tkree to twenty-five (both inclusive) of the Act of the session of the nineteenth and twentieth years of her Majesty's reign (chapter one hundred and twenty), " to facilitate leases and sales of settled estates " (g), shall extend and apply to money to be received on any sale effected under the authority of this Act (A). (g) The Leases and Sales of Settled Estates Act, 1856, the 'Act here referred to, was repealed by the Settled Estates Act, 1877, s. 58, but this does not affect the application of these sections to proceedings under the Partition Act, 1868 ; see Mordaunt v. Benwell, 19 Ch. D. 302 ; ReBarlcer, 17 Ch. D. 241. The sections are as follows : " All money to be received on any sale effected under the authority of this Act, or to be set aside out of the rent or payments reserved on any lease of earth, coal, stone, or minerals as aforesaid, may, 3 the Court shall think fit, be paid to any trustees of whom it shall approve, or otherwise the same shall be paid into the Bank of England or Ireland, as the case may be, to the account of the Accountant- General of the Court of Chancery, ex pm-te the applicant in the matter of this Act, and in either case such money shall be applied as the Court shall from time to time direct to some one or more of the following purposes (namely) : " The purchase or redemption of the land tax, or the discharge or redemption of any incumbrance affecting the hereditaments in respect of which such money was paid ; or, affecting any other hereditaments subject to the same uses or trusts ; or, " The purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid ; or ' ' The p^ment to any person becoming absolutely entitled ' ' (sect. 23). " The application of the money in manner aforesaid may, if the Court shall so direct, be made by the trustees (if any) without any application to the Court, or otherwise upon an order of the Court upon the petition of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested iu the purchase of land" (sect. 24). " TJntil the money can be applied as aforesaid, the same shall be from time to time invested in Exchequer BUls, or in Three per Centum Consolidated Bank Annui- ties, as the Court shall think fit : and the interest and dividends of such Exchequer Bills or Bank Annuities shall be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land" (sect. 25). The corresponding sections of the Settled Estates Act, 1877, are ss. 34 — 36. (A) A sale may be directed to take place out of Court, and without bringing the proceeds of sale into Court {Hayward v. Smith, W. N. (1869), 37 ; 20 L. T. 70 ; Chuhl V. Pettipher, W. N. (1872), HO). But the Court refused to direct payment of the proceeds of sale to trustees where the only persons interested were a married woman and an infant [Eigga v. Dorkis, 13 Eq. 280), and where some of the persons interested were married women resident in Australia (Aston v. Meredith, 13 Eq. 492) ; and see Strugnell v. Strugnell, 27 Ch. D. 258. A judgment for sale in a partition action converts the shares of parties not under disability who die before the sale (Arnold v. Dixon, 19 Eq. 113 ; Steed v. Freeee, 18 Eq. 192) ; and this is also the case with respect to the shares of infants (Myett v. Mekin, 25 Ch. D. 735), or married women who may have re- converted, or consented to the sale (Wallace v. Greenwood, 16 Ch. D. 362) ; and where a married woman has elected to treat the property as converted (Fowler v. Scott, 19 W. E. 972). In the case of persons under disability, however, an equity for re-conversion arises by force of the above sections of the Settled Estates Act, 1856 ; and consequently the share of an infant (Foster v. Foster, 1 Ch. D. 588), of a married woman who has done nothing to affect her equity to re-conversion (Mildmay v. Quicke, 6 Ch. D. 553), and of a lunatic (Grimviood v. Bartels, W. N. (1877), 177 ; 25 "W. R. 843 ; Se Barker, 17 Ch. D. 241 ; Jte Fares, 12 Ch. D. 333), so dying, wiU be treated as realty ; but the heir takes it as personal estate (Mordav/nt v. Benwell, 19 Ch. D. 302). Tte share of a married woman who elects by examination in Court to take it as personal estate may with her consent be paid to her husband (Stamdering v. Ball, 11 Oh. D. 652). "Where the fund was under 200Z. it was paid to her on her separate receipt, without separate examina- tion, on an affidavit of no settlement ( Wallace v. Greenwood) . See further as to married women, the Married Women's Property Act, 1882, infra. IX. Any person who, if this Act had not been passed, might have maintained a suit for partition, may maintain such suit against any one PARTITION ACT, 18G8. Ig3 or more of the parties interested, -without serving the other or others 31 & 32 Viot. (if any) of those parties ; and it shall not be competent to any de- °' *^' °- ^ fendant in the suit to object for want of parties ; and at the hearing of the cause the Court may direct such inquiries as to the nature of the property, and the persons interested therein and other matters, as it thinks necessary or proper with a view to an order for partition or sale being made on further consideration ; but all persons, who, if this Farther Act had not been passed, would have been necessary parties to the consideration. suit, shall be served with notice of the decree or order on the hearing, and after such notice shall be bound by the proceedings as if they had been originally parties to the suit, and shall be deemed parties to the suit ; and all such persons may have liberty to attend the proceedings ; and any such person 'may, within a time limited by general orders, apply to the Court to add to the decree or order («). (i) A sale cannot be ordered until aU persons interested are before the Court Where an UllildmayY. Quiche, 20E« f°"n of a Petitiok of Eight see sects. 1 and 2 of the Act. The suppUant cannot obtain discovery of documfnts ^y f \^™™ {rhoma.Y.aeg., L E. 10 Q. B. 31, but see Tomline y.Reg., 4 Ex D t\'eVpuUHrS«.r4^]'"'=°^^'^''"' production of documents as against The following is the General Order in Chancery under the Act :— OEDEE, 1st Febetuey, 1862. Ord., i Feb. 1862. PETITIONS OF EIGHT. Petitions of 1. Upon Her Majesty's fiat being obtained to any petition of right "^^" presented in pursuance of tbe said Act and intituled in the Court of Pet^on of Chancery, such petition, with the fiat thereon, together with a printed ^^^^ *° ^^ copy of such petition and fiat (if the petition is in writing), shall be ^^' filed at the office of the Clerks of Eecords and Writs (o). (a) The petition is now filed at the Central OfSce, the Eecord and "Writ Clerks being abolished ; see Jud. (Officers) Act, 1879 ; E. S. C, Ord. LXI. See as to printing, R. S. C, Ord. LXVI. r. 7, infra. 2. Every such petition, or the prjnted copy thereof, so filed shall be Kule 2. marked with the words " Lord Chancellor " or " Master of the EoUs," '^^^'^^^ with and if with the words " Lord Chancellor," then also with the title of j"u^e.° the Vice-ChanceUor before whom it is intended to be prosecuted. 3. Every copy of a petition of right left at the office of the Solicitor Rule 3. of the Treasury in pursuance of the said Act, and every copy of a -^^^d and petition of right served upon or left at the last, or usual, or last known copies for place of abode of any person under the provisions of that Act shaU be ^^"i"®- a printed copy, sealed with the seal of the office of the Clerks of Eecords and Writs, in the same maimer as copies of biUs are now sealed. And the leaving or serving of any copy not printed or not sealed with the office seal shall be of no effect for any of the purposes of the said Act. 4. A suppliant in any petition under the said Act desiring to file Eule 4. interrogatories for the examination of any person or persons who mav Jn^^rroga- 1 . T . 11 ,1 J / ,1 ,1 1 ,, . "^ tones for be required to plead or answer thereto (other than her Majesty's examination Attorney-General) shall file such interrogatories at the same time as o* "respond- 202 PETITION OF EIGHT ACT, 1860. 23 & 24 Viot. 0. 34. Rule 5. Eight to petition in formd Rule 6. Rules as to petitioning in formd pmtperis. Rule 7. Practice in reference to suits shaU apply to pro- igeedings by- petition oi right. Rule 8. Defence to petition of right. Duties and fees of officers of the Court. such petition. And a copy, examined and marked by the Clerks of Eecords and Writs, ol the interrogatories which any respondent is required to answer shall be served upon such respondent, together with the copy of the petition. 5. Any person who might be admitted to prosecute a suit in this Court in formd pauperis (J) may be admitted to prosecute in formd pauperis a petition of right intituled in this Court. And any person who might, if a defendant to an ordinary suit in this Court, have been admitted to defend in formd pauperis may be admitted to make his defence in formd pauperis to any petition of right instituted in this Court which he may be required to plead or answer to. But no person shall be admitted to prosecute any petition in formd pauperis without a certificate of counsel that he conceives the ease to be proper for relief in this Court, (i) As to suing in formd pauperis, see Ord. XVI. rr. 22—31, infra, pp. 340, 341. 6. The same orders and rules shall apply with regard to any person admitted to sue or defend in formd pauperis under those orders as are applicable with regard to paupers in suits between subject and subject. 7. So far as the same may be applicable, and except in so far as may be inconsistent with the said Act and with the preceding orders, the general orders from time to time in force as to proceedings in suits in this Court, and the practice and course of proceeding ia this Court in reference to such suits, shall be applicable, and apply and extend to proceedings in this Court in petitions under the said Act, which are, for the purposes of this order, to be considered as bills (c). (c) The petition being left at the office of the solicitor to the Treasury (r. 3), may be pleaded or demurred to, or answered, for ■which purpose further time may be allowed. In default it may be taken pro confesso, 23 & 24 Vict. c. 34, b. 8 ; a decree may be made and costs given as in an ordinary suit. Hid. ss. 9 — 14. See Tobin t. T/ie Queen, 11 W. R. 915. Notwithstanding the Act and these rules, any suppliant may proceed according to the practice before the Act (b. 18) ; under which the Court did not at the hearing of the petition enter into the merits, but directed a commission to inquire whether a suit should be instituted. 8. The duties which under the said Act and the said orders may be required to be performed by officers of this Court, shall be performed by the officers respectively, who perform duties of a similar nature in suits in this Court between subject and subject. And the fees and allowances payable to all officers and solicitors of this Court in respect of matters under the said Act shall be such fees and allowances as, by the practice of the Court and the general orders from time to time in force, they are entitled to take and charge for similar proceedings in cases between subject and subject. CHANCERY FUNDS ACT, 1872. iiOS 35 & 36 Vict. CHANCBEY FUNDS ACT, 1872. ''•^^- 35 & 36 VICT. Cap. 44. All Act to abolish the Office of Aceoimtant-Geneml of the Sigh Court of Chancery in England, and to amend the Law respecting the Investment of Morny paid into that Court, and the Becurity and Management of the Moneys and Effects of the Suitors thereof [6th August, 1872.] Whereas it is expedient to abolish the office of the Accountant- General of the High Court of Chancery in England, and to mate pro- vision respecting the transaction of the husiaess of the office of the said Accountant-General, and the securing on the Consolidated Fund and managing the moneys, efEects, and securities of the suitors of the said Court : • Ajid whereas the Commissioners acting under a commission issued hy her Majesty to inquire amongst other matters into the provisions for the custody and management of the stocks and funds of the Court of Chancery of England, and to suggest improvements therein, by their report, dated the seventeenth of Eebruary, one thousand eight hundred and sixty-four, reported that it vras .expedient to establish a deposit account for suitors' moneys in the Court of Chancery, and to allow to the suitors interest at the rate of two per cent, per annum upon the moneys belonging to them whilst in the custody of the Court, but without depriving them of the right to require the investment thereof at any time on their own behalf and at their own risk : And whereas it is expedient to provide for the establishment of such deposit account : Be it enacted, &c., as follows (that is to say) : Preliminary. I. This Act may be cited as " The Court of Chancery (Funds) Act, Slioit title. 1872." n. This Act shall, save as regards the making of rules and general Commenoe- orders as hereinafter mentioned, come into operation upon a day to be fixed by a rule to be made under this Act in that behalf, which day is hereinafter referred to as the commencement of this Act, and as to the making of any rules and general orders thereunder this Act shall come into operation on the day of the passing thereof (a). (a) See the Supreme Court Funds Rules, 1884, infra. TTT. InthieAct— The term " the Treasury " means the Commissionersof her Majesty's Definitions. Treasury for the time being, or any two or more of them. The term " Court of Chancery " means the High Court of Chancery of England, and includes the Lord Chancellor and any other 204 CHANCERY FUNDS ACT, 1872. 35 & 36 Vict, c. 4i, 8. 3. "Securities." "Securities in Coui-t." " Money in Couri;." Judge intrusted with, the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind. The term "order of the Court of Chancery" means such order, decree, report, certificate, or direction of the Court of Chancery as defined by this Act, or any judge or officer thereof, as may be prescribed by a rule made under this Act. The term " General Order of the Court of Chancery " means a general order made by the Lord Chancellor, either alone or with the assistance of other judges, and either in Chancery or in Lunacy. The term " person" includes a body corporate and company. The term " dividends " includes interest or other periodical produce. The term " Government securities" means any annuities, exchequer bonds, exchequer bills, and other parliamentary securities of the Government of the United Kingdom. The term "securities" includes Government securities and any security of any foreign state, any part of her Majesty's dominions out of the United Kingdom, or any body corporate or company, or standing in books kept by any body corporate, company, or person in the United Kingdom, and all stock, funds and effects. The term " securities in Court " means any securities as defined by this Act standing or deposited in the name or to the credit or account of the Accountant-General of the Court of Chancery or of the Paymaster-General on behalf of the Court of Chancery, or placed to the credit of a cause, matter, or account in that Court. The term " money in Court " means any sum of money paid into the Bank of England with the privity of the Accountant-General of the Court of Chancery or of the Paymaster-General on behalf of the Court of Chancery, or placed to the credit of any cause, matter, or account in the Court of Chancery, and includes dividends on securities in Court and interest on money on deposit. Abolition of office of Accountant- General of the Court of Chancery, and performance of duties by Paymaster- Greneral. Accountant- General's Office. IV. On the commencement of thjs Act the office of the Accountant- General of the Court of Chancery shall be aboUshed, and her Majesty's Paymaster-General (in this Act referred to as the Paymaster-General) for the time being shall perform aU the duties and exercise all the powers and authorities which before the commencement of this Act were performed by or vested in or capable of being exer- cised by the Accountant-General of the Court of Chancery : Provided that nothing in this Act shall render the Paymaster-General incapable of being elected to or sitting or voting in the House of Commons, or cause a member of the House of Commons upon becoming Paymaster- General to vacate his seat. The Paymaster-General may do any act, sign or execute any instru- ment, and exercise any authority required or authorised to be done, signed, executed, or exercised by him for the purposes of this Act, or CHANCERY FUNDS ACT, 1872. 205 any rule made thereunder, by a deputy or deputies appointed Iby Hm 35 & 36 Viot. in -writing under his hand. "' *^' °' ^- V. The Consolidated Fund of the United Kingdom shall be liable to Liability of make good to the suitors of the Court of Chancery all money in Court -p^^ioi^ and all securities in Court, whether the same have been paid, trans- default of ferred, or deposited into or in Court before or after the commencement (jgn^^l ^^' of this Act, and all money and securities vested in the Paymaster- Greneral for the time being by or in pursuance of this Act ; and if the Lord Chancellor, either with or without a representation made to him by any suitor of the Court of Chancery, certifies to the Treasury in writing that the Paymaster-General has failed to pay any money in Court, or transfer or deliver any securities in Court, required by any order of the Court of Chancery to be paid, transferred, or delivered from his account, or has been guilty of any default with respect to such money or securities, the Treasury shall cause to be paid out of the growing produce of the 'Consolidated Fund into the Bank of England, to the credit of the Paymaster-General for the time being on behalf of the Court of Chancery, such sum of money as may be certified by the Lord Chancellor in writing to be required to pay the money so required to be paid, or to replace the securities so required to be transferred or delivered or make good such default. VI. "Where under any Act (whether passed before or after the com- Construotion mencement of this Act), or otherwise, any money or securities would, referring to' if this Act had not passed, be capable of being paid, transferred, or Accountant- deposited to or into or in the name of or to the account or credit of or "®°®™ • with the privity of the Accountant-General of the Court of Chancery, or the Accountant-General of the Court of Exchequer, or to or into or in the Court of Chancery, the same shall after the commencement of this Act be paid, transferred, or deposited to the credit or account of or with the privity of the Paymaster-General for the time being {b) on behalf of the Court of Chancery, and shall be subject to the like trusts, orders, directions, powers, and provisions as if he were the Accountant- General of the Court of Chancery or Court of Exchequer, as the case may be, and the orders of the Court of Chancery relating thereto shall have the same effect as the like orders of the Court of Chancery or Court of Exchequer would have had if this Act had not passed. All Acts of Parliament, all rules and orders made in pursuance of any Act of Parliament, all general orders of the Court of Chancery, all orders of the Court of Chancery, and all instruments and proceedings of every description referring to the Accountant-General of the Court of Chancery or Court of Exchequer, shall, subject to the provisions of this Act and of any rule made thereunder, be construed and put into execution as if the Paymaster-General for the time being were therein named or referred to in place of such Accountant-General, so however that all money and securities shall be paid, transferred, or deposited to the credit or account of the Paymaster-General for the time being on behalf of the Court of Chancery, and not into the name of the person who is such Paymaster-General. 206 CHANCEKT FUNDS ACT, 1872. 35 & 36 Vict, c. a, B. 6. 'Fra miTi g of orders. • Office of Paymaster- General for Chancery business. Vesting of property in Paymaster- G-eneral for time being. 12 Geo. 1, 0. 32, B. 7 ; 54 Geo. 3, 0. 14. Transfer of securities and receipts of dividends. Certificate of itrar. Provided that notHng in tMs section shall affect the Queen's Re- membrancer, or the performance by him of any duties formerly per- formed by the Accountant-General of the Court of Exchequer, or apply to any act, rule, order, instrument, or proceeding relating to such duties. (i) No securities will be transferred to the account of the Paymaster-General on which there can be any liability {Se Stephens, 8 Ch. 465). Vii. All general orders of the Court of Chancery, and all orders of the Court of Chancery, and all instruments and proceedings relative to business of the Court of Chancery to be transacted by the Paymaster- General ia pursuance of this Act (in this Act referred to as chancery business) shall, after the commencement of this Act, be framed and expressed in such manner as may be necessary for carrying the provi- sions of this Act with respect to the Accountant-General and Paymaster- General into effect. VIII. The Treasury shall cause the Pajrmaster-General to keep, in the neighbourhood of the place where the Court of Chancery ordinarily holds its sittings, an office for the purpose of carrying on chancery business, and for mating for the purpose of chancery business pay- ments of small amount in cash, and shall from time to time provide such clerks and officers as are necessary for conducting such business and making such payments. IX. All securities and money vested in the Paymaster-General in pursuance of this Act shall vest in the Paymaster-General for the time being on behalf of the- Court of Chancery without any convey- ance, assignment, or transfer, notwithstanding the death or removal from office of the person who is Paymaster-General, and shall be held by him in trust to attend the orders of the Court of Chancery, and aU acts done by the Paymaster-General with reference to such securities and money in pursuance of an order of the Court of Chancery shall be valid and effectual. X. AU securities from time to time transferred, standing, or depo- sited into, in, or to the account of the Paymaster-General in pursuance of this Act, shall be held by the Paymaster-Gener&l in trust in the several causes and matters in which such securities are transferred, standing, or deposited respectively, and shaU not be transferred, sold, or delivered out except in pursuance of an order of the Court of Chancery, but the certificate of a registrar of the Court of Chancery or of a master or registrar in lunacy countersigned by the Paymaster- General shall be sufficient evidence of the order referred to in the certificate, and of the directions contained in such order, and shall be a necessary and sufficient authority to the Governor and Company of the Bank of England and every person for transferring on sale or otherwise or delivering out any securities standing in the books of or deposited with such bank or person to the credit or account of the Paymaster- General for the time being on behalf of the Court of Chancery, and the securities directed by any such certificate to be CHANCEEY FUNDS ACT, 1872. 207 transferred or delivered out shall he transferred or delivered out 35 & 36 Vict. aocordingly on behalf of the Paymaster-General by some ofilcer of °' '^*' ^" '"'• such bank or person. The Governor and Company of the Bank of England shall, by one of their cashiers or some other proper officer, from time to time receive all dividends accruing due on all securities -which are standing to the account of the Paymaster-General for the time being on behalf of the Court of Chancery, of which a certificate has been sent to them by the Paymaster-General, and shall also receive any principal money pay- able in respect of any of such securities, and the said certificate shall be a sufficient authority to them to receive such dividends and prin- cipal money ; and any receipt given by the said Governor and Com- pany, or one of their cashiers or other proper officer, for any dividends on any securities standing to the said account, or any principal money payable in respect of any such securities, shall be a good discharge for the same ; and the said Governor and Company shall place all money received by them in pursuance of this section to the credit of the Paymaster-General for the time being, on behalf of the Court of Chancery (c). (c) See the Supreme Court Funds Act, 1883, s. 7, infra. XI. Section 19 of the Act of the session of the 16th and 17th years Indorsement of the reign of her present Majesty, c. 59, intituled, "An Act to ^^ "'^^^f'^^®^' repeal certain stamp duties, and to grant others in lieu thereof, to Paymaster- amend the laws relatiug to stamp duties, and to make perpetual certain "^^'^^ral. stamp duties iu Ireland" (which section relates to the endorsement of drafts or orders drawn upon bankers for the payment of money), shall extend to any dociiment issued by the Paymaster-General in pursu- ance of this Act, which authorises the payment of money. Xn. The provisions of the Act of the 24th and 25th years of the Forgery of reign of her present Majesty, c. 98, intituled, " An Act to consolidate pfymaTto-^ and amend the statute law of England and Ireland relating to indict- General or able offences by forgery," which have reference to the forging or 2r&^^"^ot. altering of any instrument made or purporting to be made by the o. 98, s. 33. Accountant-General of the Court of Chancery, shall apply to every instrument made, signed, or countersigned, or purporting to be made, signed, or countersigned, by the Paymaster-General, or any deputy, clerk, or officer of the Paymaster-General, and to the forgery and alteration of any signature or counter-signature of such Paymaster- General, deputy, clerk, or officer. Xm. Nothing in this Act shall be deemed to recLuire the Governor Indemnity and Company of the Bank of England to keep the account of the g„?f°„^°* Paymaster-General on behalf of the Court of Chancery causewise, and the Governor and Company of the Bank gf England are hereby indem- nified for all acts and things done or permitted to be done in pursuance of this Act, or of any rule purporting to be made thereunder, or of any order of the Court of Chancery made or purporting to be made in pur- 208 CHANOEET PUNDS ACT, 1872. 35 & 36 Vict. 0. 44, s. 13. Establish- ment of suitors' de- posit account. Saving for inyestments made under order of Court. suance of this Act or of any such rule, or done or permitted to be done in pursuance of any certificate signed and countersigned as directed by this Act, and such acts and things respectively shall not be questioned or impeached in any Court of law or equity to the detriment of such Governor and Company. XrV. Save as otherwise provided by any rule made under this Act, all money in Court paid in either before or after the commencement of this Act shall, subject to the provisions of this Act and of any rule made thereunder, be placed on deposit, and in the case of money in Court paid in after the commencement of this Act without any appli- cation or request for that purpose, and when so placed on deposit shall bear interest at the rate of 2 per cent, per annum, together with any income tax chargeable thereon. Any money which may at any time be standing to the credit of the Paymaster-G-eneral on behalf of the Court of Chancery b'eyond the amount which the Paymaster-General considers to be required for meeting current demands shall be placed in the hands of the Commis- sioners for the Reduction of the National Debt, who shall from time to time pay to the credit of the Paymaster- General on behalf of the Court of Chancery such sum as, with the money to the like credit, may be certified by him to be required to meet current demands, and the Consolidated Fund of the United Bjngdom shall be liable to make good all money so placed in the hands of the Commissioners for the Reduction of the National Debt, and the interest payable on sums placed on deposit, in like manner as it is liable to make good money in Court. XV. Any money in Court paid in either before or after the com- mencement of this Act which under any general order of the Court of Chancery or rule under this Act, or under an order of the Court of Chancery, is required to be laid out in any particular investment, shaU, subject to any rule made under this Act, be so laid out notwith- standing anything in this Act. [Section 16 (empowering tlie Court to make orders for the conversion of stock in Court and the transfer of the proceeds to the suitors' deposit account) was repealed by the Judicature Act, 1875, 8. 16, post, which directs that rules may be made as to investment of money in. Court in securities and conversion of Government securities into money.] [Section 17 provides for the application of money placed in the hands of the Commissioners for the Reduction of the National Debt.] Hules and Accounts. Treasuryrules XVIII. The Lord Chancellor, with the concurrence of the Treasury, for regulatmg ^^^j fj-gj^ ^jme jq -jjime make rules for carrying this Act into effect, (See 12 Geo. 1, and regulating the deposit, payment, delivery, and transfer in, into, 33 v'T'^^g^^ and out of the Court of Chancery of money and securities which belong to the suitors of that Court, or are otherwise capable of being deposited in or paid or transferred into that Court, or in or into the Bank of England with the privity of the Paymaster- General, or are under th§ CHANCERY FUNDS ACT, 1872. _ 209 custody of tie Court of Chancery, and the evidence of such deposit, 35 & 36 Viot. payment, delivery, or transfer, and the investmen'; of and other dealing "" **' "■ ^^- with money and securities in Court in pursuance of the orders of the Court of Chancery, and the execution of the orders of the Court of Chancery and the powers and duties of the Paymaster-General with reference to such money and securities, and in particular for doing aU or any of the following things : — (1.) Carrying into effect the transfer of the oifice of the Accountant- General to the Paymaster- General : (2.) Regulating the mode in which the Paymaster-General is to Dealings witli deal with money and securities in pursuance of the orders of the ™°"®y ^""^ Court of Chancery, and the mode in which effect is to be given to pursuance of an order of the Court of Chancery which is to be executed by or q^^^^ °^ through the office of the Paymaster-General for Chancery busi- Certificates of ness, and generally the arrangements between that office and the Paymaster- Court of Chancery and the officers thereof, and the certificates and information to be given by the Paymaster-General with reference to Chancery business : (3.) Regulating the deposit, payment, sale, transfer, and delivery Payment to with, to, and by the Paymaster-General of the said money and g.g^^**'^" securities, and the proceedings, evidence, and duties of persons in (See 12 Geo. 1, relation thereto : "■ ^^' ^^- ^-^O (4.) Determining the mode of ascertaining the value of Government securities transferred to the Commissioners for the Reduction of the National Debt, or otherwise .ordered to be dealt with by the Paymaster-General : (5.) Regulating the placing on and withdrawal from deposit of Placing money in Court, whether paid in before or after the commence- "lo^^y o"! •' , deposit, ment of this Act, and the payment or crediting of interest on money placed on deposit : (6.) Determining the smallest amount which is to be invested in securities, unless directed to be invested notwithstanding the smallness of the amount, and determining the smallest amount which is to be placed or remain on deposit, and the smallest amount of money on deposit on which interest in pursuance of this Act is to be credited to an account to which money placed on deposit belongs : (7.) Determining the time at which money in Court is to be placed Computing on deposit, and at which interest on money so placed on deposit is ^^''^^^^ • to begia and cease, and the mode of computing such interest : (8.) Determining the cases in which interest on money placed on deposit, and the dividends on any securities standing to the account of the Paymaster-General on behalf of the Court of Chancery, is or are to be placed on deposit : (9.) Dealing with accounts on which the balance of money and securities together is less than five pounds, and providing for the M, P 210 CHANCERY FUNDS ACT, 1872. 35 & 36 Vict. periodical publication of a list of the accounts not dealt mth for a 0. 44, s. 18. period of at least fifteen years : (10.) Eegulating the mode of framing and expressing orders of the Court of Chancery, instruments and proceedings relative to the Chancery business of the Paymaster-General : (11.) Abrogating any general orders of the Court of Chancery relative to the matters aforesaid : (12.) Eevoking and altering any rules previously made. Every rule purporting to be made in pursuance of this section shall come into operation at the date of such rule or any later date therein in that behalf mentioned, and have effect as if it were enacted in this Act. [Sect. 19 authorises the making of general orders for regulating the practice of the Court of Chancery for the purpose of carrying into effect the Act and any rules made thereunder.] [By sect. 20 the Treasury are to keep accounts and have them audited.] [Sect. 21 relates to the transfer'of buUdings.] [Sects. 22 — 25 provide for a pension to the then Accountant-General ; the status of the then esdsting officers of the Accountant- General ; the transfer of securities to the Paymaster-General and alteration of accounts at Bank of England, &c. ; and for dealing with certain slave compensation funds standing in the name of the Accountant- General. ] Repealing [Sect. 26 repealed wholly the Acts specified in schedule 2, part 1, and partly clause. those specified in schedule 2, with the usual savings as to anything done or title to land or right to pension, &c., gained under those Acts.] SCHEDULES. SCHEDULE ONE. [Schedule I. enumerated certain Acts relating to Slave Compensation, referred to in sect. 25.] SCHEDULE TWO. Past I. — Acts whoelt Repeat.ed. 12 Geo. 1, c. 32 ; 12 Geo. 1, c. 33 ; 32 Geo. 3, c. 42 ; 37 Geo. 3, o. 135 ; 52 Geo. 3, c. liv. (local) ; 64 Geo. 3, c. 14 ; 55 Geo. 3, o. Mv. (local) ; 58 Geo. 3, c. Ixix. (local) ; 59 Geo. 3, c. xxvii. (local) ; 6 & 6 WiU. 4, o. 45 ; 6 & 7 Will. 4, o. 5 ; 6 & 7 Will. 4, 0. 82 ; 4 & 5 Viet. c. 18 ; 9 & 10 Vict. c. 81. Paet II. — Acts paetly IIepbaiiii. 36 Geo. 3, o. 52, Legacy Duty Act (see pp. 51, 52, ante). So much of sect. 32 as requires the Accountant-General to invest the money therein mentioned in the purchase of Three per Cent. Consolidated Bank Annuities or to give any certificate. Part of 3 Geo. 4, c. 69, an Act relating to Fees. Part of 3 & 4 Will. 4, o. 73, Abolition of Slavery. Part of 5 Vict. c. 5, Administration of Justice. 10 & 11 Vict. c. 96, an Act for better securing Trust Funds and for the relief of Trustees, section 3, p. 60, ante, 15 & 16 Vict. c. 80, sect. 59. Parts of 15 & 16 Vict. c. 87, Relief of Suitors. 16 & 17 Vict. 0. 98, Relief of Suitors. The whole Act, except sect. 11. 30 & 31 Vict. o. 87, The Court of Chancery (Officers) Act, 1867, sects. 11 and 12. 32 & 33 Vict. c. 91, The Courts of Justice (Salaries and Funds) Act, 1869, sects. 4 to 7. CHANCERY FUNDS AMENDED ORDERS, 1874. 211 CHANCERY FUNDS AMENDED OEDERS, 1874. OEDEES OF COUET. Undek the CotTET OP Chanoeet (Funds) Act, 1872, 35 & 36 Vior. Cap. 44 ; and THE Trttstee Relief Act, 1847, 10 & 11 Vict. Cap. 96. The 22nd day of December, 1874. [Rule 1 revoked the Chancery Funds Orders, 1872, and provided that these Commence- Amended Orders should come into operation on January 11th, 1875.] ment of orders. 2. In these orders, and in orders as herein defined, terms shall Interpretation have the same meaning as the same terms are defined to have in the *®''"'^' Court of Chancery (Funds) Act, 1872, and as prescribed by the Chancery Funds Consolidated Eules, 1874 (a) ; and the term " Court " shall mean the Court of Chancery, and iuclude a judge thereof, whether sittiag in coiirt or at chambers ; and the term " order " shall include a decree; and the term "cause or matter" shall, in these orders, include a separate account in a cause or matter, and a matter intituled merely as an account ; the words importing the singular number shall include the plural number, and words importing the plural number shall include the singular number ; the words importing males shall include females. (a) The Chancery Funds Consolidated Rules, 1874, are expressly revoEed by the Supreme Court Funds Rules, 1884, r. 1, infra, but the Amended Orders of 1874 appear to be revoked only so far as they are inconsistent with the Supreme Court Rules, and it is therefore considered necessary to retain them in the present edition. The Chancery Funds Rules, 1874, will be found in 9 Ch. xxix. [Rule 3 abrogated certain orders in Chancery.] 4. A person who shall make a transfer or payment of money or Notice of securities into Court or a deposit of securities in Court, as provided P*y™;™*'> ^ ' ^ transfer, or by rule 27 of the Chancery Funds Consolidated Eules, 1874(6), shall deposit on forthwith give notice thereof to the solicitors of the persons upon ^^^^^st. whose application the order directing such transfer, payment, or deposit was made, or to such persons if they have no solicitor ; or if the order was made on the application of the person making such transfer or payment, to the solicitors of the other parties appearing on the application. A person making a transfer, payment, or deposit upon request to the credit of a cause or matter, as provided by rule 25 (c) of the said rules, shall forthwith give notice thereof to the solicitors on the record for the parties to the cause, or in case of a matter, to the persons interested, if known, or to their solicitors, if any, stating in such notice what the money or securities comprised in such transfer, payment, or deposit represent, and for what purpose such transfer, payment, or deposit has been made ; and such notices may be sent by post {ce). (4) The rule here referred to is substantially reproduced by r. 36 of the Supreme Court Funds Rules, 1884, infra. p3 212 CHANCEKT FCJNDS AMENDED OKDERS, 1874. Chancery (c) The rule here referred to (which related to the bringing of funds into Court Eunds otnerwise than in pursuance of an order) is substantially reproduced by r. 30 of the Amended Supreme Court Funds Rules, 1884, infra. Orders, 1874. (ce) On the question of giving notice under the present practice in pursuance of this rule, see He Stening, W. N.. (1884), 142, a case under tiie Trustee Belief Act, cited ante, p. 53. Practice [Rules 5 — 10 relating to notice of payment or transfer into Court under the under Trustee Trustee Relief Act (10 & 11 Vict. c. 96), and to the application by petition or sum- Relief Act. mons for payment out, wiU be found set out, p. 53, ante."] Petitions to state whether duty is paid or not. Petitions respecting money or securities on list of undealt-with funds. Certain articles and securities not to be received by Clerks of Records and Writs. Proceedings and docu- ments in a cause to be marked v^ith reference to record. 11. Eveiy petition for dealing witli money or securities in Court, chargeable with duty payable to the revenue under the Acts relating to legacy or succession .duty, or the dividends on such securities, shall contain a statement whether such duty or any part thereof has or has not been paid. [Rule 12 relating to registrars' certificates appears to be obsolete.] [Rule 13, providing that certain applications may be made at Chambers, appears to be obsolete.] 14. "When a cause or matter has been inserted in the list mentioned in rule 91 {d) of the Chancery Funds Consolidated Eules, 1874, the fact shall be stated in every petition or summons affecting any money or securities to the credit ,of such cause or matter. In cases in which the money or securities affected by such petition shall together amount to or exceed in value 500^., a copy of such petition, and notice of all proceedings in Court or at chambers shall (unless the Court otherwise directs), be served on the official solicitor of the Court, who shall be at liberty to appear and attend thereon (e). (d) The rule here referred to is substantially reproduced by r. 101 of the Supreme Court Funds Rules, 1884, infra. (e) As to the costs of the official solicitor, see Be Claris, 21 Ch. D. 776. [Rule 15 is reproduced by Ord. LV. r. 2 (11), infra.'] 16. The Clerks of Eecords and Writs (/) shall not receive into their custody effects of the suitors consisting of jewels or plate, or other articles of a like nature, or negociable securities. (/) See now Ord. LX. r. 3 ; Ord. LXI. r. 1, infra. 17. No order in a cause shall be passed or entered, and no certificate in a cause of a chief clerk, or of a taxing master of the Court, shall be signed or filed, and no petition in a cause shall be answered, and no summons in a cause shall be issued, and no affidavit made in a cause shall be filed, until the same respectively be either marked with the reference to the record, as prescribed by the 1st of the Consoli- dated Orders, rule 48, or be inscribed with a note indicating that the cause was commenced prior to 2nd November, 1852, and the correct- ness of such reference may be required to be authenticated by the official seal of the Clerks of Eecords and Writs being impressed on every such document (^). (0) See Ord. LXI. r. 19, infra. CHANCERY FUNDS AMENDED ORDERS, 1874. 218 18. The duplicate orders or records to Tbe deposited with the clerks Chancery of entries pursuant to rule 18 (A) of the Chancery Funds ConsoHdated j^^f^ Eules, 1874, shall annually (or oftener if the senior registrar shall Orders, 1874. direct), be bound up in volumes of convenient size, and indexed, and transmitted to the Eeport Office, in the same manner as written orders OTdera to^be are now bound up, indexed, and transmitted, and written office copies deposited or extracts may be made therefrom, subject to the existing regulations ^'eutoS^^ relating thereto. (A) The rule here referred to is reproduced mutatis mutandis by r. 24 of the bupreme Court Funds Rules, 1884, infra. 19. Solicitors shall be entitled to charge and shall be allowed the Solicitors' same fees on proceedings under these orders [and under the Chancery ^^^' Funds Consolidated Eules 1874] as they are, by the general orders and practice of the Court, entitled to charge and to be allowed in respect to proceedings of a similar or analogous description ; and shall be entitled to charge and shall be allowed the same fees for printed copies of orders as they are now entitled to charge and to be allowed for written copies thereof (i). (s) An order of Court of the same date as these Amended Orders gave a schedule of fees to be paid in the Report Office for printed copies of orders to be acted upon by the Chancery Paymaster, and for printed office or certified copies thereof. The Report Office is now merged in the Central Office (Judicature (Officers) Act, 1879, as. 5, 6) ; and the fees for copies are those proTided by the Order as to Court Fees, 1884, infra. JUDIOATUEE (FUNDS, &c.) ACT, 1883. 46 & 47 Vict. u. 29. 46 & 47 VICT. Cap. 29. An Act to consolidate the Accounting Departments of the Supreme Court of Jvdicature, and for other purposes. [20th August, 1883.] Whereas it is expedient that there should be but one accounting department for the Supreme Court of Judicature and all the Courts and divisions thereof, and it is further expedient to amend certain provisions of the Chancery Funds Act, 1872, and to provide for faciH- 35 & 36 Vict. tating the business of the said department : "■ **' ^- ^*'- Be it enacted, &c., as follows : 1. From and after the commencement of this Act there shall be Pay office of one accounting department for the Supreme Court of Judicature. S^^ Supreme 2. All securities and money at the time of the commencement of ptm^g i^ this Act vested in the Paymaster-General in pursuance of the Chancery Chancery Funds Act, 1872 (o), and all securities and money at anytime after the ^'"^^°'^' commencement of this Act transferred or paid into or deposited in 214 JUDICATUBE fFUNDS, &c.) ACT, 1883. 46 & 47 Viot. u. 29, B. 2. 35 & 36 Viot. 44, B. 10. Validity of payments, &o. pursuant to Rules of Court. 38 & 39 Viot, 0. 77. Hemittanoes by post. Amendment of 35 & 36 Viet. V. 44, s; 10. Short title. Court, to tlie credit of any cause, matter, or account, in the Chancery Division of the High Court of Justice, shall he vested in her Majesty's PaymasterrGeneral for and on behalf of the Supreme Court of Judi- cature, and shall continue to be and be subject to all the provisions of the Chancery Punds Act, 1872, and to the rules heretofore made and now in force under that Act, subject to such alterations therein and to such other and further rules as shall from time to time be made as thereby provided. (a) See this Act, ante, p. 203. [Seotions 3 and 4 relate to funds in other divisions.] 5. AU acts done by the Paymaster-General with reference to money and securities in Court (whether such money and securities be paid, transferred, or delivered into Court under this Act or under the pro- visions of the Chancery Funds Act, 1872), pursuant to and in accord- ance with the provisions of any general rules of the Supreme Court of Judicature made under the provisions of the Supreme Court of Judicature Act, 1875, and Acts amending the same, shall be as valid and effectual as if they had been done in pursuance of an order of the High Court of Justice or of the Court of Appeal. 6. If under any rules made by the Lord Chancellor with the con- currence of the Treasury, or any regulations of the Treasury, the Paymaster-General be authorized to make payments of money to persons entitled thereto upon their request by transmitting by post to such persons crossed cheques or other documents intended to enable such persons to obtain payment of the sums expressed therein, the posting of a letter containing such cheque or document, and addressed to any such person entitled thereto at the address given by him in his request, shall, as respects the liability of the Paymaster-General and of the Consolidated Pund respectively, be equivalent to the delivery of such cheque or document to such person himself. 7. Any rules made by the Lord Chancellor with the concurrence of the Treasury under the provisions of the Chancery Punds Act, 1872, or this Act, may determine what evidence of an order of the High Court of Justice or Court of Appeal, and of the directions contained in such order, shall be necessary or sufficient, or necessary and sufficient to authorise the Governor and Company of the Bank of England or any other person to transfer on sale or otherwise, or to deliver out, any securities or other things standing in the books of or deposited with such bank or person to the credit or account of the said Paymaster- General for the time being under this or the aforesaid Act ; and such securities or things shall be transferred or delivered out accordingly, on behalf of the Paymaster-General, by some officer of such bank or person, anything in sect. 10 of the Chancery Punds Act, 1872, to the contrary thereof notwithstanding. 8. This Act maybe cited as the Supreme Court of Judicature (Punds, &c.) Act, 1883. SUPREME COURT FUNDS RULES, 1884. 215 SUPEEMB COTJET FUNDS EXILES, 1884. I, the Eight Honourable Eoundell, Earl of Selborne, Lord High GhanceUor of Great Britain, with the concurrence of the Lords Com- missioners of her Majesty's Treasury, do hereby, in pursuance of the powers contained in " The Court of Chancery Funds Act, 1872," " The Supreme Court of Judicature Act, 1875," "The Supreme Court of Judicature (Funds, &c.) Act, 1883," and of every other power enabling me in that behalf, make the following rules : — L Operation of Eitles aijd Inteepsetation op Teems. 1. These rules shall come into operation on the 1st day of March, Commenoe- 1884, and may be cited as "The Supreme Court Funds Eules, i884." "^jesand 2. The Chancery Funds Consolidated Eules, 1874,* are hereby re- short title. voked as from the day on which these rules come into operation ; and Repeal of all other rules or general orders prescribing the mode of dealing with ^^igg - funds in Court, and containing any provisions relating to funds in * por these Court inconsistent with these rules, are hereby revoked, and these "^les, see 9 Oh xxix rules substituted therefor, as from the same day : — Provided, that the rules hereby revoked shall continue to apply to orders made but not -fuUy acted upon before these rules come into operation, so far as is iudispensable for the purpose of duly giviag effect to such orders : but a certificate of a registrar as an authority for a sale or transfer of securities shall not in such cases be req^uired. 3. In these rules and in orders as herein prescribed and defined, Interpretation terms shall have the same meaning as the same terms are defined to have in the Eules of the Supreme Court, 1883, and the following words shall have the several meanings hereby assigned to them, viz. : — " Paymaster " means her Majesty's Paymaster-General for the time being for and on behalf of the Supreme Court of Judicature, or the Assistant Paymaster-General for Supreme Court business for the time being deputed by the Paymaster-General to act on his behalf for such business : "Pay Office " means the Paymaster-General's Office for business of the Supreme Court of Judicature : "Pay Office Account" means the account of the Paymaster-General for the time being for and on behalf of the Supreme Court of Judicature : "Audit Office" means the branch of the Department of the Comp- troller and Auditor General, in which the audit of the accounts of the Pay Office is conducted : " Bank " means the Bank of England, or the Governor and Company of the Bank of England : " Company " includes oorpotation or body corporate : " Government securities " means Consolidated SI. per centum An- nuities, or Eeduced 31. per centum Annuities, or New SI. per centum Annuities, or 2^1. per centum Annuities ; of terma. 216 SUPREME COURT FUNDS RULES, 1884. Supreme Court Funds Rules, 1884. "Funds," or "funds in Court," means any money, Government stock or annuities, or otter securities, or any part thereof standing or to be placed to the Pay Office Account in the hooks of the Bank, of England or of any other company : "Lodge in Court" means pay or transfer into Court, or deposit in Court. " Lodgment in Court " means payment or transfer into Court, or deposit in Court : 'Title of the cause or matter " means the short title of the cause or matter, with the reference to the record : 'Ledger credit" means the title of the cause or matter and the separate account (if any) opened, or to be opened, under an order or otherwise, in the books of the paymaster, to which any funds are credited or to be credited : " Order " means an Order of ibhe Supreme Court of Judicature or of the High Court of Justice or Court of Appeal, whether made in Court or in chambers, and an Order in Lunacy, and iacludes a judgment or decree, and a report of a master ia lunacy, confirmed by fiat, and thereby receiving the operation of an order under the Lunacy Regulation Acts for the time being in force ; and a cer- tificate of a master in lunacy to be acted on without further order ; and includes the schedule or schedules to an order : "Direction" means any cheque, draft, or authority issued to the Bank of England, or to any other company, which relates to money or securities standing or to be placed to the Pay Office Account : "Court" means the Supreme Court of Judicature or the High Court of Justice, or any division thereof, or the Court of Appeal : " Registrar" means a registrar of the Chancery or of the Probate, Divorce, and Admiralty Divisions of the High Court of Justice ; and includes the officer whose duty it may be under the General Orders ia Lunacy for the time'ljeing in force to draw up and issue Orders in Lunacy : "Chief clerk's certificate" or "certificate of a chief clerk" means a certificate made by a chief clerk of the Chancery Division of the Court : " Taxing officer " (a) means a taxing master in the Chancery Division of the Court, and the master or person whose duty it is to tax the costs in the other divisions or in lunacy : "National Debt Commissioners" means the Commissioners for the Eeduction of the National Debt : In causes and matters proceeding in a district registry, master, chief clerk, and taxing officer means district registrar : Words importing the singular number only include the plural ntmiber, and words importing the plural number only include the singular number : SUPREME COTJET FUNDS RULES, 1884. 217 "Words importing males include females. Supreme Court Funds (a) The term "taxing officer" includes "district registrar," -where the Court has Rules, 1884. directed, .taxation to be made by that officer, and the paymaster must act on Ms certificate of taxation accordingly. The costs of an action in a district registry however -wiU almost invariably be taxed in London ( Wilson r. AlUree, 27 Ch. D. 242 ; Day v. Whittaker, 6 Oh. D. 734). II. Pbepasation of Oedebs in the Chanceet Division and in Lunacy TO BE ACTED ON BY THE PAYMASTER, AND PaeTICTTLABS EELATING THEEETO. 4. The rules next following, numbered severally 5 to 27 iuclusive, Application shall apply only to causes and matters in the Chancery Division, and 27 inclusive, (so far as the same are applicable) to matters in lunacy. 6. Every order which directs funds to be lodged in Court, shall have P'^?"^/"^ annexed thereto as part thereof a schedule, to be styled the Lodgment brought into Schedule, which shall be headed with the title of the cause or matter, '^°^ *° ''f'"'^ the date of the order, and the title of the ledger credit to which the gche^de. funds are to be placed ; and shall set out in a tabular form : — (a) The name, or a sufB.ciently identifying description of the person by whom the funds are to be lodged : (b) The amount of money and the description and amount of securities, if ascertained. The lodgment schedule shall be prepared upon a printed form accord- ing to the Form No. 1 in the Appendix to these rules, and as nearly as may be in the manner shown by the specimen entries appended to such form ; and may direct the investment and accumulation of the funds or the dividends or interest on the funds to be lodged. 6. Every order which directs funds in Court to be paid, sold, trans- 9'^^?'^*°^ f erred, or delivered to any person, or carried over to any other ledger p^i^ o^t^ &o.. credit than that to which the same are standing, or to be otherwise to tave a dealt with by the paymaster, shall have annexed thereto as part schedule, thereof a schedule, to be styled the payment schedule, which shall be headed with the title of the cause or matter, the date of the order, and the ledger credit to which the funds dealt with are standing. The payment schedule shall contain as part of the heading a state- ment of the funds -with which, or with part of which, or with the interest or dividends on which the paymaster is to deal, describing them if already in Court as they appear in the paymaster's certificate, or if not already in Court stating the source from which they are to be derived. The payment schedule shall set out in a tabular form :— (a) The name of each person to whom a payment, transfer, or delivery of any funds is to be made (the name to be in full and the christian name to precede the surname) : unless the name is to be stated in a certificate of a chief clerk or a master in lunacy or a taxing oflElcer, or unless such payment, transfer, or delivery is to be made to trustees or other persons in suceession, or to 218 SUPREME COURT FUNDS RULES, 1884. Supreme Court Funds Rules, 1884. When a separate account is opened. When both a lodgment and payment schedule to be annexed. Separate schedule for each ledger credit. Instructions to paymaster to be solely contained in schedules., representatives when no probate or letters of administration sliall have been taken out at the date of the order : (b) The title of the ledger credit or separate account to which any funds are to be carried over : (o) The amount of money and the description and amount of the securities in each case to be paid, sold, transferred, or delivered, so far as the same can be then stated; and where the actual amounts to be dealt with cannot be ascertained at the date of the order, and are not to be subsequently ascertained by any means provided for by the order or by these rules, the aliquot parts to be dealt with : (d) The nature and necessary particulars of any other dealings with such funds by the paymaster. In the body of the schedule short descriptions may be used, and it shall not be necessary to add that the specific amounts dealt with form part of the larger amount of any like funds mentioned in the heading. The word " interest " in the schedule shall, unless otherwise specified, mean the dividends and interest on all the funds mentioned in the heading. The payment schedule shall be prepared upon a printed form according to the Form No. 2 in the Appendix to these rules, and as nearly as may be in the manner shown by the specimen entries appended to such form. 7. When .funds in Court are by an order directed to be carried over to a separate account, the title of the ledger credit to be opened for the purpose shall, unless the order otherwise directs, commence with the title of the cause or matter to which such funds are standing. 8. Every order which both directs or authorises the lodgment of funds in Court and also deals with such funds or any part thereof, or with any funds already in Court to the same ledger credit, shall have annexed thereto as part thereof a combined lodgment and payment schedule, in the Form No. 3 in the Appendix to these rules. 9. When funds to be lodged in Court imder an order are by the same order directed to be placed to two or more ledger credits, separate lodgment schedules shall be made out for such respective ledger credits ; and when funds standing to two or more ledger credits are dealt with by the same order, separate payment schedules shall be made out for such ledger credits respectively. 10. The lodgment and payment schedules, respectively, shaU. contain the whole of the instructions intended by the orders of which they severally form part to be acted upon by the paymaster, and all par- ticulars necessary to be known by him, so far as such instructions and particulars are capable of being expressed at the date of the order, and the paymaster shall only be responsible for giving effect to such in* structions so intended to be given by the order as are expressed in the lodgment or payment schedule thereto. The instructions and par* ticulars contained in a lodgment or payment Schedule shall not be set SUPREME COURT FUNDS RULES, 1884. 219 forth, in the body of the order, hut shall only be therein referred to as Supreme appearing by the schedule, unless for any special cause it shall, in the ^^ ^^^ opinion of the judge by whom the order is made, or the registrar by ' ~ ■whom the same is drawn up, be necessary to set forth some part of such instructions or particulars, both in the body of the order and in the schedule. 11. "When an order directs any sums to be ascertained by the certi- Schedule to ficate of a chief clerk or taxing officer (h), or in any other manner, and s^g are^to to be afterwards dealt with by the paymaster, it shall be so expressed be aBoertained in the payment schedule ; and the paymaster shall deal with the ^y certificate, amount when ascertained on receipt of the necessary certificate, or other authority, which shall be retained by him. (J) See TFilson v. AUtree, 27 Ch. D. 242, cited in note (a) to r. 3. 12. "When an order directs payment out of a fund in Court of any Certificate costs directed to be tax^ by a taxing officer (c), the taxing officer shall o^taxedoo^ts state in his certificate the name of the solicitor to whom such costs are payable, and the paymaster shall, upon production of such certificate, issue a direction for payment of the same to such solicitor. (c) See Wilson v. AUtree, 27 Ct. D. 242, cited in note (a) to r. 3. 13. "When interest not directed to be certified is payable in respect Interest Low of any money in Court directed by an order to be dealt with by the ascertained, paymaster, there shall be stated in the payment schedule the rate per centum at which, and (if the day to which interest is payable can be fixed by the order) the day (inclusive) to which such interest is to be computed, and the amount of such interest (d). (d) This and the four following rules are taken with only slight alteration from r. 10 of the Chancery Funds Rules, 1874. 14. If the day to which interest is payable cannot be fixed by the When the order, the day from which (exclusive) such interest is to be computed .^ to which sh.aU (except in the case of a computation of subsequent interest in the payable certificate of a chief clerk, or a master in lunacy) be stated in the pay- oannot be ment schedule, and such interest may be directed to be computed and certified by a chief clerk, or a master in lunacy, or (where the computation is dependent upon the taxation of costs) by a taxing officer (e). (e) See note (d) to r. 13. 15. Interest certified by a chief clerk, or a master in lunacy, or a When interest taxing officer, may, unless the order otherwise directs, be computed oSe^olerk'^^ to a day subsequent to the date of the certificate and to be named &c., therein as the day for payment, so as to allow a reasonable time for doing all necessary acts to enable the payment to be made; and the chief clerk, or master in lunacy, or taxing officer, may, if he thinks fit, require a statement in writing of such computation, authenticated by the signature of the solicitor of the person having 220 SUPREME COUET FUNDS RULES, ia84. When interest to be ascer- tained by a£B.davit. Deduction of income tax from interest. Supreme the carriage of the order, to be produced before preparing the Rides "^4^ certificate, hut no affidavit verifying such computation shall be re- '■ qliired (/). (/) See note {d) to r. 13. 16. When the day for payment is not fixed by the order, and the interest is not directed to be certified as in the last preceding rule mentioned, such interest shall, without any provision in the order for that purpose, be ascertained by an affidavit, or by a statutory declaration imder the Act 5 & 6 Will. 4, c. 62, in which case such interest shall be computed to a day (inclusive) to be named in such affidavit or declaration, as the day for payment ; which day shall not be more than fourteen days after the day of swearing such affidavit, or making such declaration ; and such affidavit or declaration shall be a sufficient authority to the paymaster to pay or apply the amount of interest so ascertained in the manner directed by such order {g). {g) See note (d) to r. 13. 17. In every case in which interest is to be computed, income tax (if any) shall, in making such computation, be deducted therefrom at the rate payable during the time such interest accrues, unless the order otherwise directs ; and if income tax has been deducted, it shall be so stated in every such affidavit or declaration as is mentioned in the last preceding rule (h). (A) See note (d) to r. 13. 18. Whenever the dealing by the paymaster with funds in Court is, by an order, made contingent upon the execution of some document, the document shall be described (»), and the parties thereto by whom it is to be executed shall be named in the payment schedule, or in a certificate of a master in lunacy or of a chief clerk. The execution of such document shall be certified by a master in lunacy, or by a chief clerk, or may be verified by affidavit, if the order by which such execu- tion is required shaU so direct (A). («) See Se Clmgh, 32 L. T. 195. {ic) This rule is taken from r. 11 of the Chancery Funds Rules, 1874. 19. When an order directs the payment of dividends, annuities, or other periodical payments, to be made by the paymaster, there shall be stated in the payment schedule (except in the case of dividends directed to be paid as they accrue due), the time when the first of such payments and all subsequent periodical payments, whether quarterly, half-yearly, yearly, or otherwise, are to be made (Z). {I) This rule is taken from r. 13 of the Chancery Funds Rules, 1874. 20. When an order directs the payment, transfer, or delivery of funds in Court, in respect of which duty shall be payable to the revenue under the Acts relating to legacy or succession duty, and does Documents on which any dealings by the paymaster are made contingent to be described. Periodical payments. Legacy and succession duty. SUPEEME COURT FUNDS RULES, 1884. 221 not direct tlie payment of such duty, it shall be stated in the payment Supreme schedule that such payment, transfer, or delivery is subject to duty, ^"^'^ ^^f' and in such case the paymaster is to have regard to the circum '■ '— stance that such duty is payable; and when by an order funds in respect of which such duty may be chargeable are directed to be invested, carried over, or placed to a separate account, the words "subject to duty" shall be added in the schedule to the separate account directed to be opened (m). (m) This rule is taken from r. 14 of the Chancery runds Rules, 1874. 21. When a person to whom payment, transfer, or delivery of funds Payment, in Court is directed is entitled thereto as real estate, or as trustee, *™nsfer, or executor, or administrator, or otherwise than in his own right or for trustees &c. his own use, the fact that he is entitled to the same as real estate, or the character in which he is so entitled, shall be stated in the payment schedule to the order, or in the certificate of a chief clerk, or of a taxing officer, or of a master in lunacy (n). («) This rule is taken from the first part of r. 53 of the Chancery Funds Rules, 1874. 22. When an order is made dealing in any way with funds in Court Draft sohe- or to be brought into Court in accordance with minutes agreed upon f™a°ed b by the parties, the solicitor of the party whose duty it is to procure party having the order to be drawn up and entered shall prepare and lodge with f'0'i°^""^f the registrar or other proper officer, for his consideration, draft lodg- ment and payment schedules, as the case may be, in the same form as the lodgment and payment schedules to an order, and containing the particulars so far as the same have been ascertained, which are required by these rules to be contained in the lodgment and payment schedules of the order. 23. Every order which is to be acted upon by the paymaster shaU. Orders ho-w be drawn up and entered by the registrar, and shall either be wholly ^^^"^"^ ^^^ printed, or, in cases in which printed forms can be used, may be partly in print and partly in writing (o). (o) This rule is taken from the first part of r. 15 of the Chancery Eunds Rules, 1874. 24. The registrar shall cause a duplicate of every printed or partly Authentica- printed order and a further copy of the schedules thereto to be made rg^orTof at the same time with the original ; and the original order shall be orders, and passed by the registrar in the usual way, and togethei- with the ^^Jgfor"^^' further copy of the schedules thereto be stamped with his official seal paymaster. on every leaf thereof, and transmitted by him to the clerks of entries with the duplicate. The duplicate order shall be retained and filed by the clerks of entries as the record, and the origiual order and further copy of the schedules, when examined and stamped by them and marked with a reference thereon to the duplicate or record so filed, shall be returned to the registrar to be delivered out to the solicitor 222 eUPEEME COURT FUNDS EULES, 1884. Supreme Court Funds Bnles, 1884. Paymaster to act on copy of schedules. Additional copies of printed orders. Amendment of accidental errors in printed orders. having the carriage of the order, whose duty it Bhall be forthwith to leave such further copy of the schedules at the pay office. 25. The copy of the schedules to an order left with the paymaster pursuant to the last precediag rule shall he the paymaster's authority for giving effect to the several operations directed therein. No part of the order other than the schedules thereto shall be left with the paymaster. 26. The registrar may cause to be made or 'printed additional copies of orders or schedules according to the requirements of the parties or their soKcitors, and when such orders have been passed and entered, such additional copies shall be transmitted to the Central Office, and upon being duly completed and signed or certified by the proper officer, may be issued as office or certified copies. 27. Clerical mistakes or errors, or accidental omissions in printed orders may be amended in writing; and every such amendment shaU. be stamped by the clerks of entries or other proper officer, with the official seal, as evidence that the duplicate or record has been also amended : Provided that no amendment shall be made in any order to provide for a new state of circumstances arising after the date of the order ; nor shaU any order be amended for the purpose of extending the time thereby limited for making any lodgment of funds in Court. When any such amendment is made in a schedule to an order, the copy of such schedule to be left at the pay office under rule 24 (if not already so left) shall be amended and stamped in the manner above provided. If such copy has prior to the amendment been left at the pay office, a notification of the amendment, signed by a registrar, shaU be delivered to the solicitor having the carriage of the order, who shall leave such notification at the pay office, and produce therewith the amended original order ; and the paymaster shall note such amend- ment on his copy of the schedule and act in accordance therewith (p). (p) The first part of this rule is taken from rule 16 of the Chancery Funds Eules, 1874. [Eule 28 relates only to the Queen's Bench and Prohate Divisions.] All funds lodged in Conit to be placed to the account of the paymaster. Manner of lodgment of funds in Chancery IV. Lodgment of Fttods in Coitet. 29. All money and securities to be paid into or deposited in Court shaU be paid or deposited at the Bank of England (Law Courts Branch) and placed in the books of the bank to the account of the Paymaster- General for the time being, for and on behalf of the Supreme Court of Judicature; and the bank shall cause a receipt to be given to the person making the payment or deposit. All securities to be transferred into Court shall be transferred to the said account in the books of the bank, or other company in whose books such securities are registered. 30. In the Chancery Division a lodgment of funds ia Court not directed by an order may be made upon a direction to the bank or other company, to be issued by the paymaster on a request signed by SUPREME COURT FUNDS RULES, 1884. 223 or on behalf of tte person desiring to make such lodgment : Provided Supreme that no such lodgment shall he placed in the pay office boots to a ^°^ "^f separate account in a cause or matter (except to a security for costs ^ aooount) unless an order has directed such separate account to be partSularsTo^ opened. ' te stated in A direction for a lodgment directed by an order shall be issued by "^^1"®^*- the paymaster upon receipt of a copy of the lodgment schedule ; and a direction for a lodgment under the Trustee Belief Act shall be issued by him, as provided by rule 41, upon receipt of an office copy of the schedule mentioned in that rule. The request for a direction under this rule shaU. state the name of the person by or on whose behalf the funds are to be lodged, the ledger credit in the pay office books to which the funds are to be placed, and the date of the authority or certificate (if any) in pursuance of which the funds are to be lodged. In cases of funds to *be lodged in pursuance of the Lands Clauses Consolidation Act, 1845, or of the Copyhold Acts, the further par- ticulars required under rules 39 and 40 shall be stated in the request. And when (otherwise than as hereinbefore provided) funds are lodged in Court in pursuance of an Act of Parliament, under which some specific authority is necessary for such lodgment, the request for a direction for lodgment shaU contain a reference to such Act and authority, and the requisite authority shall be left at the pay office. Except in the cases next mentioned, the requests under this rule shall be in the Forms No. 5 (for money) and No. 6 (for securities), in the Appendix to these Rules. When money is to be lodged (in any action brought to recover a Lodgment in debt or damages) under the provisions of Order XXII. or of Eule 26 aotiona^or of Order XXXI. of the Rules of the Supreme Court, 1883, the request debt or shaU. be iu the Form No. 7 in the Appendix to these Rules, and shall *"'*8'®^- contain a statement of the circumstances under which the money is to be lodged, in such of the following terms as may be applicable to the case, viz. : — (A.) When the money is to be lodged under the provisions of Rule 5 of the said Order XXII., a statement in the foUowing terms : — " Paid in in satisfaction of claim of above-named [name of party]." (B.) When the money is to be lodged under the provisions of Rule 6 of Order XXII., a statement in the foUowing terms: — "Paid in against claim of above-named [name o/^or^y], with defence denying liabUity." (C.) When the money is to be lodged under the provisions of Rule 26 of Order XXXI., a statement in the following terms : — " Paid in to Security for Costs Account." 31. When it is desired to bring money into Court in the Chancery Conditional Division without waiting the time necessary to obtain a direction for J^of^^atthe the bank to receive such money, it may be lodged at the bank to the bank in urgent oases. 224 SUPREME COURT FUNDS RULES, 1884. Supreme Court Funds Rules, 1884. credit of a Supreme Court Suspense Account (subject to being dealt with as hereinafter mentioned, and not otherwise), upon an applica- tion signed by the person desiring to lodge the same, or his solicitor, and addressed to the bank, specifying the amount, and the title of the ledger credit to which it is desired to be lodged, and upon such lodg- ment being made one of the cashiers of the bank shall give a certifi- cate that the amount has been lodged to the credit of the said Sus- pense Account ; and in every case the person making such lodgment, or his solicitor, shall forthwith req^uest the direction of the paymaster for the bank to receive the money in the manner provided by the last preceding rule, and shall leave such direction at the bank for the purpose of having the money so previously lodged transferred to the Pay Of&ce Account, and placed in the books of the Pay Office to the ledger credit mentioned in such direction (y). (j) This rule is taken from rule 31 of the Chancery Funds Rules, 1874. [Rule 32 relates to the Queen's Bench Division.] 33. In every case of a lodgment in the Chancery and Queen's Bench Divisions under the provisions of the said Orders XXII. and XXXI., as provided in the preceding Rules 30 and 32, the paymaster shall cause an entry to be made in his books indicating the circumstances under which the money is stated to be lodged. [Rule 34 relates to the Prohate, &c. Division.] 35. A request or authority for the issue by the paymaster of a direction for the lodgment of funds in Court may be sent to the pay- master by post, and, if so desired by the person sending the same, the paymaster shall send such direction by post to the address specified by such person. 36. A person directed by an order in the Chancery Division to make a lodgment in Court shall be at liberty to make the same without further order, notwithstanding the order may not have been served, or the time thereby limited for making such lodgment may have expired; and a any further sum of money has by reason of such default become payable by such person for interest, or in respect of dividends, he shall be at liberty to lodge in Court such further sum upon a request as hereinbefore provided : Provided, that any such subsequent lodgment shall not affect or prejudice any liability, process, or other consequences which such person may have become subject to by reason of his default in making the same within the time so limited (r). (r) This rule is substantiaUy identical with rule 27 of the Chancery Funds Rules, 1874. See rule 4 of the Chancery Funds Amended Orders, 1874, ante, p. 211. Upon receipt 37. When funds have been received by the bank, and when securities funds^direo" ^^'^® 'been transferred in the books of the bank or any other company tion to be to the Pay Office Account in accordance with a direction, the bank or retume to other company shall forthwith send such direction to the paymaster, Lodgments under Ords. XXII. and XXXI. to he distinguished in pay office hooks. Request and directions may be sent by post. Persons may bring funds into Court ia Chancery Division, though time limited by order has expired. SUPREME COURT FUNDS RUXES, 1884. 225 ■with a certificate thereon that the funds specified have been received Supreme or transferred as therein authorized. S°^ ^^^ oo T J.1- /Ti Rules, 1884. 38. In the Chancery and Queen's Bench Divisions, when any direc- ;: tion or other authority for the lodgment of funds in Court is returned ^dgmeuuf to the Pay Office, with a certificate thereon that the funds therein l>e filed. mentioned have been lodged, the paymaster shall file at the Central Office a certificate of such" lodgment, and shall therein state the ledger credit to which such funds have been placed in the boots at the Pay Office ; and an office copy of such certificate of the paymaster shall be received as evidence of the lodgment («). (s) This is taken from rule 30 of the Ohauoery Funds Rules, 1874. 39. Money lodged in Court in the Chancery Division pursuant to Wien money the 69th section of the Lands Clauses Consolidation Act, 1845, in respect ^^ ^P^^f^i of lands in England or Wales, shall be placed in the books at the 8 Vict. c. 18, Pay Office to the credit of ex parte the promoters of the undertaking, \^y' ^^" in the matter of the special Act (citing it), and some words shall be te stated. added in each case briefiy expressive of the nature of the disability to seU and convey, by reason of which the money shall be so paid in, which particulars shall be stated in the request for the direction to receive the money (t). {t) This rule is almost identical with rule 32 of the Chancery Funds Rules, 1874. 40. Money lodged in Court in the Chancery Division pursuant to Money lodged the Copyhold Acts shall be placed in the books at the Pay Office to copvhold the credit of "Ex parte the Land Commissioners for England," and Acts to be of the particular manor in respect of which the money shall be so paid ^gggjiit^^ in ; and in the request for a direction to receive such money the name and locality of such particular manor shall be stated (m). . (m) This is taken from rule 33 of the Chancery Funds Rules, 1874. 41. When a trustee or other person desires to lodge funds in Court Lodgments in the Chancery Division under the Act 10 & 11 Vict. c. 96, he shall 5?uatee ^ annex to the affidavit to be filed by him pursuant to the said Act a Relief Act. schedule in the same printed form as the lodgment schedule to an order, setting forth : — (a.) His own name and address : (b.) The amount of money and description and amount of securities proposed to be lodged in Court : (c.) The ledger credit to be opened iu the Pay Office books, in the matter of the particular trust, to which the funds are to be placed : (d.) A statement whether legacy or succession duty (if chargeable) or any part thereof has or has not been paid : (e.) A statement whether the money oi? the dividends on the securi- ties so to be lodged in Court, and all accumulations of dividends thereon, are desired to be invested in any and what description 226 SUPEEME COURTITINDS EULES, 1884. Supreme of Grovermnent securities, or wlietlier it is deemed unnecessary Eules 1884^ ^° *° invest the same. The paymaster, on receipt of an office copy of such schedule (which is to he retained by him), shall issue the necessary direction for giving effect to such lodgment (d). {v) This rule is taken from rule 34 of the Chancery Funds Eules, 1874, 9 Ch. yIiji ; but whereas that rule required the trustee to _file cm affldmit, setting forth certain things, this one requires him to annex to his affiiamit a schedule, setting forth certain things ; and the things to be set forth are not quite the same. As to the notice to be given of payment in (as required by rule S of the Chancery Funds Amended Orders, 1874), see Re Stening, W. N. (1884), 142, cited- ««<«, p. 53. The affidavit under the present practice should contain in the body of it a short description of the instrument creating the trust (Trustee Eelief Act, s. 1), and the names and addresses of the persons entitled {Re Stening) ; and the schedule to he appended should contain the particulars mentioned in this rule. Credit to 42. Any principal money or dividends received by the bank ia oeeds of "^secu- ^^^spect of securities standing to the Pay Office account shall be placed ritiesanddivi- in the books at the Pay Office, in the case of principal money to the he'plaoed ledger credit to which .the securities whereon such money arose were standing at the time of the receipt thereof, and in the case of divi- dends to the ledger credit to which the securities whereon such dividends accrued were standing at the time of the closing of the transfer books of such securities previously to the dividends becoming due (w). (w) This is taken from rule 35 of the Chancery Funds Eules, 1874. [Eule 43 relates to the appropriation in the Queen's Bench Division of money lodged under Ord. XIV.] Payment out of Court of money lodged in actions for debts and VI. Payment, Dblitert, and Tilansfee oe Puiroa out of Ootjbt, and OTHEB. dealings WITH PtTNDS. 44. In the Chancery and Queen's Bench Divisions, when money has been lodged in actions for debts and damages under Orders XXH. and XXXI. of the Eules of the Supreme Court", 1883 (as described ia rules 30 and 32 of these Eules), and when and so far as money lodged under Order XIV. of the said Eules of the Supreme Court has been appropriated in the manner provided ia the last preceding rule, pay- ment of the money shall be made to the person in satisfaction of whose claim it has been lodged, or to the person otherwise entitled thereto, or, on the written authority of either such person respectively, to his solicitor, as under: — unless an order restraining such payment has been lodged at the Pay Office prior to the issue of the paymaster's direction for payment. (A.) When the money has been lodged or appropriated in satisfac- tion of a claim, under rules 30 (A.) and 32 (A.) of these Eules, or the last preceding rule, a direction for payment shall be issued by the paymaster upon a request in the Form No. 11 (A.) in the Appendix to these Eules. (B.) When the money has been lodged or appropriated against a claim, with a defence denying liability, under rules 30 (B.) and SUPEEME COURT PUNDS RULES, 1884. 227 32 (B.) of these Eules, or the last preceding rule, a dii'ection for Supreme payment shaU. be issued by the paymaster upon receipt of a noti- ^^^ ^j^ fication that the plaintiff accepts the sum lodged in satisfaction, '■ and that due notice has been given of such acceptance, and upon a request for payment of the same ; such notification and request to be in the form No. 11 (B.) in the Appendix to these Eules. (C.) When the money has been lodged to a Security for Costs Account under rules 30 (C.) and 32 (0.) of these Eules, a direction for payment shall be issued by the paymaster upon receipt of a certificate of a taxing officer, master or chief clerk (as the case may be), as to the person who is entitled to have paid out to him the money so lodged (x). When a request is made for payment of money lodged on a notice or pleading, the original receipted notice or pleading must be pro- duced at the Pay Office. Except as in this rule is provided, the money so lodged or appro- priated as mentioned herein, shall only be paid out in pursuance of an order. (x) This paragraph (C.) was suhstituted for that originally contained in the rule by the Supreme Court Funds Eules (October), 1884, to take effect from and after October 24th, 1884 ("W. N. (1884), Pt. II. p. 495). 45. Except as provided in the last preceding rule, and subject to the In otter cases provisions contained in rules 55, 56, 57, 70, 73, and 74, funds in Court dm^ -^th^ shall not be paid, delivered, or transferred out of Court, nor invested, only in pur- sold, or carried over unless in pursuance of an order, or in the case of ^^^^ ° *"* an investment of money or appKcation of dividends unless in pursu- ance of an authority contained in a certificate of a Master in Lunacy (y). (y) This rule is taken from rule 36 of the Chancery Funds Eules, 1874. A pro- spective order for payment out of sums hereafter to be paid in was made in He Chamberlain, 22 Beav. 286 ; Xambie v. Lamhie, 9 Ha. App. 84 ; but see Re Bowes, 12 W. E. 569. For examples of prospeotire orders for sale of funds in Court, and payment to persons who would become entitled in the vacation, see Melden v. Sornby, W. N. (1870), 213. As to transfer from the English to the Irish Chancery, see Taughan t. Ma/rquia of Headfort, 5 Eq. 173. 46. A duly-authenticated copy of every payment schedule in the A copy of Chancery Division and in Lunacy, and of every order in the Queen's ^S schedule Bench and Probate, Divorce and Admiralty Divisions which directs or order deal- funds to be dealt with, shall be left at the Pay Office, and shaU be f^^T'^ the paymaster's authority for the issue of directions giving effect to Court to be such orders. 1^^* ^^^^^ pay omce. In the Chancery Division it shall be the duty of the solicitor having the carriage of the order forthwith to leave such copy (as provided in rule 24). In the Queen's Bench and Probate, Divorce and Admiralty Divisions such copy shall be left by or on behalf of the person entitled to payment or interested in any other dealings with such funds directed or authorized by the order. q2 228 SUPEEME COURT ElINDS RULES, 1884. Supreme Court Funds Rules, 1884. Paymaster to prepare direc- tions giving effect to orders upon receipt of the neces- sary authority and informa- tion. Payments may be made by post. Paymaster's directions to be sufScient authority to the Bank or other com- pany. Discharge to paymaster. 47. The directions of the paymaster for the payment of money under these rules, and for the delivery of securities out of Court in pursuance of an order shall he prepared by the paymaster forthwith, or from time to time, upon receipt of a copy of the order and any further necessary authority or information ; and except as provided in the next following rule such directions shall be delivered upon the personal application of the persons entitled thereto. Investments of money, transfers of securities out of Court, and carrying over of funds, in pursuance of an order, shall be made by the paymaster upon receipt of the necessary authority and iaformation. Sales of securities in pursuance of an order, of which a copy has been left at the pay oflS.ce, shall be made by the paymaster upon appli- cation by or on behalf of the persons interested therein, and such application may be sent by post. 48. Any person residing within the United Kingdom entitled under an order to any dividend, annuity, or other periodical payment, and any person so resident entitled to any other payment not exceeding ,6001., may obtain a remittance of the same by post, by sending to the paymaster a request in the Porm No. 12 in the Appendix to these Eules, attested by two witnesses, of whom one shall be a justice of the peace, a commissioner to administer oaths, or a clerk in holy orders, or notary pubKc. Upon receipt of such request (and, when necessary, of evidence of the fulfilment of any conditions of payment, as referred to in Eule 95), the pa3rmaster shall send by post to the address specified in the request a direction or other document by which payment may be obtained ; and such direction or other document shall be crossed; so as to be payable only through a bank : Provided that the paymaster may refuse to comply with any such request if he see reason for so doing, and provided also that the said transmission of such crossed direction or other document shall be at the sole risk of the person sending the said request. The proper attestation of the said request pursuant to this rule shall be sufficient evidence to the paymaster that the person making the request is the person named iu the order re- ferred to in such request. 49. The directions of the paymaster issued under these rules (signed and countersigned by such officers as may be prescribed or approved by the Treasury, under Eule 107) shall be sufficient authority to the bank for the payment of the money specified in any such directions, and shall be the necessary and sufficient evidence of an order of the Court to authorize the bank or other company to transfer, on sale or otherwise, or to deliver, any securities standing to the pay office ac- count which may be specified in any such directions. 50. A direction or other document by which payment of money is effected, when indorsed or signed by the payee or his lawful attorney, shall be a good discharge to the paymaster for the amount therein expressed (z). («) A similar proyision was contained in rule 38 of the Chancery Funds Rules, 1874, SUPREME COURT FUNDS RULES, 1884. 229 [Rule 51 applies to the Queen's Benoh Diyision.] Supreme -rrn. • /^ • i Court Funds 02. Wiien money m Gouxt or any sum payable thereout is by an Rules, 1884. order directed to be paid to any public officer or department or to the official liquidator of any company, or any other official persons for p^mgntg jq whom an account is kept at the bank, payment thereof shall, on a official per- requisition to that effect, be made by a direction to the bank to transfer ^"de^^y^ the amount of such payment to the account at the bank of such public transfer, officer or official person accordingly. When any duty is directed to be paid out of funds in Court, such duty shall, without any words in the order to that effect, be assessed, and on a requisition made by or on behalf of the Commissioners of Inland Eevenue be transferred to the proper account at the bank (a), (a) The first part of this rule is taken from rule 41 of the Chancery Funds Rules, 1874. 63. When money in'Court is invested by purchase, the payment for Payments for such investment, which, unless otherwise ordered, shall include broker- purchased ; age, shall be made conditionally upon the transfer or deposit to the pay and transfers office account of the securities purchased. And when securities in g(ji^_ Court are sold, the transfer or deUvery of such securities shall not be made until the money proceeds of such sale, after deduction, unless otherwise ordered, of brokerage, shall have been paid to the pay office account. 54. Upon an investment of money in Court or the sale of securities Accounts to in Court, the securities purchased by such investment or the money ^°^ ™ales'' realised by such sale, respectively, shaU in every case be placed to the &c. are to be ledger credit to which the money invested or the securities sold pre- credited. viously stood, unless, in the case of an investment, otherwise specially ordered. 55. When securities in Court are directed to be transferred, dehvered Application out, or carried over, dividends accruing thereon subsequently to the aooruiag on date of the order directing the transfer, delivery, or carrying over (when securities the amount of the securities to be transferred, dehvered, or carried over '^^"^ ®"® * is specified in such order, or if not so specified then subsequently to the time when the amount of such securities shall be ascertained) shall be paid to the persons to whom or carried over to the ledger credit to which the securities are to be transferred, delivered, or carried over imless such order otherwise directs. When securities in Court are directed to be realised, and the whole of the proceeds paid out or carried over in one sum, or in aliquot parts (except when the realisation is to raise a specific sum of money), any dividends accruing on such securi- ties subsequent to the date of the order directing the reaUsation (i£ the amount of such securities is specified in the order, or if not so specified, then subsequently to the time when such amount shall be ascertained) shall be added to such proceeds, and appUed in Hke manner therewith. Unless such order otherwise directs (J). (i) This rule is substantially identical with rule 46 of the Chancery Funds Rules, 1874. 230 SUPREME COUKT FUNDS EULES, 1884. Supreme Court Fuuda Rules, 1884. When such dividends have been inyested. When divi- dends other- wise appli- cable have been invested. Dividends on residue. Application of money or dividends placed on deposit after date of order dealing there- with. Application of interest on money placed on deposit after date of order direct- ing its invest- ment. 56. When suet dividends as in the last preceding rule mentioned have pursuant to a general or other previous order been invested, the securities purchased with such dividends shall, unless otherwise directed, be transferred or delivered, and any dividends accrued in respect thereof be paid, to the persons to whom or carried over to the ledger credit to which such first-mentioned dividends would if unin- vested have been paid or carried over (c). (c) This is taken from rule 47 of the Chancery Funds Rules, 1874. 57. In every case (other than that provided for by the last preceding rule), when by an order money or dividends are directed to be dealt with so that the same ought not to be invested, and subsequently to the date of such order such money or dividends or any part thereof shall have been invested, the securities purchased with such dividends shall, unless otherwise directed, be sold, and the proceeds of such sale and any dividends accrued in respect of such securities shall be applied in the same manner as the money or dividends so invested would have been applied under such order, if they had not been so invested () to rule 76. 81. Interest upon money on deposit shall not be computed on a fraction of 11. {b). (i) See note tw) to rule 76. For what 82. Except as in this rule otherwise provided, interest upon money terest is to he On deposit shall accrue by halt calendar months, and shall not be computed. computed for any less period. The periods from the 1st to the 15th of a month, both days inclusive, and from the 16th to the last day of a month, both days inclusive, shall, for the purpose of computing .such interest, be reckoned as half calendar months ; and such interest shall begin on the first day of the half calendar month next succeeding that in which the money is placed on deposit, and shall cease from the last day of the half calendar month next preceding the withdrawal of the money from deposit i Provided that when a sum of money in Court SUPREME COUKT FUNDS RULES, 1884. 237 amounting to not less than 5001. shall be placed on deposit, pursuant Supreme to a req[U6st signed by or on behalf of a person daiming to be interested jj^^ ^gg^^ therein, and. shall remain on deposit undealt with until the 1st of April or the 1st of October next succeeding the day on -which it is placed on deposit, interest shall begin on the day inclusive next succeeding such day of placing on deposit (c). (c) See note {to) to rule 76. 83. Interest which has accrued for or during the half years ending When interest respectively the 31st of March and the 30th of September in every credited. ySar on money then on deposit shall, on or before the 20th days of the months respectively foHomng, be placed by the paymaster to the ledger credit to which such money shall be standing on every such half-yearly day. And when money on deposit is withdrawn from deposit, except as to money withdrawn during the first 15 days of the months of April and October respectively, the interest thereon which has accrued and has not been credited shall, at the time of with- drawal, be placed to the ledger credit to which the money is then standing (rf). {d) See note {w) to rule 76. 84. When money on deposit to a- ledger credit consists of sums Mode of which have been placed on deposit at different times, and an order is ^terest in made dealing with the money, and part of such money has to be with- certain oases drawn from deposit for the purpose of executing such order, the part of ^onev or parts of the money dealt with by such order last placed and remain- withdrawn, ing on deposit at the time of such withdrawal shall, for the purpose of computing interest, be treated as so withdrawn, unless the order other- wise directs (e). (e) See note (w) to rule 76. 85. Unless otherwise directed by an order, interest credited pur- Placing of Buant to rule 83 on money on deposit shall, when or so soon as it deposit'"'' amounts to or exceeds 10/., be placed on deposit, and for the purpose of computing interest upon it shall be treated as having been placed on deposit on the last half-yearly day on which any such interest became due (/). (/) See note («>) to rule 76. rX. ExCHAIfGE OE COHVEESION OF G-OTEENMENT SeCUEITIES AND Teansactions with the National Debt Oommissionees. 86. Wben Government securities in Court are directed to be sold. Exchanges such securities may be realised by exchange in the pay office books in ^ ue^f '*^ the manner hereinafter provided. And when money in Court is re- actual pur- quired to be invested in Government securities, such investment may gales^^ be made by exchange in like manner. 238 SUPKEME COURT FUNDS RULES, 1884. Supreme [Rules 87 — 93 provide for the manner of recording exchanges ; the commisBion to Court Funds be charged on exchanges and paid to the Exchequer ; the periodical adjustment of Rules, 1884. the exchange account ; the adjustment of dividends on Government securities in Court ; and the settling of accounts between the pay of&oe and the National Debt Commissioners.] Calculations of residues to be made in. pay ofSce. Evidence of life, &c. Affidavits in other cases. X. Calctjiation op EssiDtrES, Evidence op Lite, &o. 94. Tor the purpose of ascertaining the amounts of any residue or aliquot part of money or securities dealt with by an order, when such amounts cannot he stated in the payment schedule and are not directed to be certified, the necessary calculations shall be made in the pay office : Provided that the paymaster may require such calcu- lations to be first stated in a certificate signed by the solicitor of the party interested. 95. When any person is entitled, under an order, to receive divi- dends or other periodical payments from the pay office, and the paymaster requires evidence of life or of the fulfilment of any condi- tions affecting such payments, such evidence may be furnished by a declaration signed by a solicitor acting on behalf of such person, or by a declaration signed by the person entitled to the payment, and attested by a justice of the peace, commissioner to administer oaths, clerk in holy orders, or notary public ; and the paymaster shall act on such evidence unless in any case he thinks fit to require such evidence to be by affidavit. The paymaster may prescribe, with the approval of the Treasury, the terms in which such declaration or affidavit shall be made, and the forms to be used for that purpose. The provisions of this rule shall apply to orders made before these rules come into operation, notwithstanding anything as to evidence in such orders contained. 96. When in carrying into effect the directions of an order evidence is required by the paymaster for any purposes other than those included in the immediately preceding rules, he may receive and act upon an affidavit, or upon a statutory declaration under the Act of 5 & 6 Wm. 4, c. 62, instead of an affidavit, and every such affidavit or statutory declaration shall be filed in the Central Office when the paymaster shall consider it necessary (y). {ff) Cf. rule 26 of the Chancery Funds Rules, 1874. Office copy of schedules, &c. to be sent to audit office. Office copies of certificates and other XI. Copies of Orders and other Documents por Audit Office. 97. An office copy of the schedules to every order in the Chancery Division and in Lunacy, and of every order in the Queen's Bench and Probate, Divorce and Admiralty Divisions, to be left with and acted upon by the paymaster, shall be transmitted by the proper officer to the audit office ; and in case of any amendments being made in any such schedule or order, such office copy shall be likewise amended. 98. An office copy of every certificate or other authority of a master of the Supreme Court, chief clerk, or taxing officer, or of a master in STJPEEME COURT FUNDS RULES, 1884. 239 lunacy, ■which is to be acted upon by the paymaster, or so much thereof Supreme as may be necessary, and an office copy of any certificate, affidavit, or ^^* '^884^ statutory declaration which may be received in evidence by the pay- master, shall, when requested, be transmitted by the proper officer to te sent. the audit office. Xn. MlSOELEAHEOTTS. 99. The paymaster, upon a request signed by or on behalf of a Paymaster person claimiag to be iaterested in any funds in Court standing to *° gj® , a ledger credit specified ia such request, may, in his discretion, issue of funds in a certificate of the amount and description of such funds, and such Court, certificate shall have reference to the morning of the day of the date thereof, and shall not include the transactions of that day, and the paymaster shall notify on such certificate the dates of any orders restraining the transfer, sale, delivery out, or payment, or other deal- ing with the funds in "Court to the ledger credit mentioned in such certificate, and whether such orders affect principal or interest, and any charging orders, affecting such funds, of which respectively he has received notice, and the names of the persons to whom notice is to be given, or in whose favour such restraining or charging orders have been made. The paymaster may re-date any such certificate, provided that no alteration in the amount or description of the funds has been made since the certificate was issued. And when a cause or matter has been inserted in the list referred to in Eule 101, the fact shall be notified on the certificate relating thereto (A). (A) This rule is taken with certain alterations from rule 87 of the Chancery Funds Rules, 1874. 100. Upon a request signed by or on behalf of a person claiming Paymaster to be interested in funds in Court, the paymaster may, in his discre- ™^y "^."^ . tion, issue a transcript of the account in his books of the ledger credit accounts and specified in such request ; and if so required by the person to whom it ^"J^ish other is issued, such transcript shall be authenticated at the audit office. He may also upon a like request supply such other information or issue such certificates with respect to any transactions or dealings with funds ia Court as may from time to time be required in any particular case (ji). (») This is taken from rule 88 of the Chancery Funds Rules, 1874. 101. On or before the 1st day of March in every third year the List of dor- paymaster shall prepare, in such form and with such particulars as &^°obem^de the Treasury may from time to time direct, a list or statement of the triennially ledger credits of causes and matters in the books of the pay office ^^g^"^" (other than those referred to in the next following rule) to which tiiere stood on the Ist day of September then next preceding any securities or any money not less than 501., which money or the divi- dends on which securities have not been dealt with, otherwise than by the continuous investment or placing on deposit of dividends, during the fifteen years immediately preceding the last-mentioned date. 240 SUPBBMB COUKT FUNDS ETJXES, 1884. Supreme Court Funds Rules, 1884. Transfer of small balances to a special account. Titles of accounts not to exceed 36 words. Outstanding cheques of late Aooountant- General, Index of documents filed. The said list or statement shall be filed in the Central Oflace, and a copy thereof shall be inserted in the " London Gazette " and exhibited in the several offices of the Court. The paymaster shall not give any information respecting any funds in Court mentioned in such list or statement except upon a request signed by the person applying for such information. If such request be made by a solicitor, such information shall not be given unless the request states the name of the person on whose behalf it is made, and that such person is ia the opinion of the applicant beneficially interested in such funds. If such request be made by any person other than a solicitor, such information shall not be given unless the applicant is able to satisfy the paymaster that the request is such as may in the particular case be properly complied with {k). (i) This is taken from rule 91 of the Chancery Funds Rules, 1874, 102. The paymaster may from time to time carry over to a special ledger account for small balances such ledger credit balances of money and securities as do not together amount to 51., and on which the money or securities shall not have been dealt with during the preceding five years. When an order dealing with funds carried over under this rule is to be acted upon, the paymaster shall carry back such funds and any dividends accrued thereon to the ledger credit' from which they were so carried over, and shall deal therewith as directed by such order (Z). {1} This is taken from rule 92 of the Chancery Funds Rules, 1874. 103. The length of the title of any ledger credit shall not exceed thirty-six words, exclusive, in the case of a separate account in a cause or matter, of the title of the cause or matter in which such separate account is opened : Provided that if a sufficient reason be assigned to the satisfaction of the registrar or master of the Supreme Court for extending beyond thirty-six words the title of a ledger credit, such title may be so extended ; and the registrar or master shall in such case add to the instruction to open such credit the words " notwithstanding rule 103 ;" and provided that the paymaster may extend the title of a ledger credit if in his opinion a sufficient reason be assigned for so doing. In such title four figures shall be reckoned as one word (w). (ot) This is taken from rule 94 of the Chancery Funds Rules, 1874. 104. Unpaid cheques signed, by the late Accountant-General, or any of his predecessors, shall be a sufficient authority to the paymaster for making the payments therein purporting to be intended to be. made (n). («) This is taken from rule 40 of the Chancery Funds Rules, 1874. 105. An index shall be made and kept in the Central Office of all documents by these rules directed to be filed there (o). (o) This la taken frpm rule 95 pf thp Chancery Funds Rules, 1874, SUPEEME COURT FUNDS RULES, 1884. 241 106. Upon the request of any person, or of a solicitor acting on Supremo behalf of any person, named in an order and entitled to or interested jj°^g jg^^^ in funds in Court, the paymaster shall record in such manner as he -^ shall consider convenient for reference, the name and address of such addres^ses person, or of the solicitor for the time being acting on his behalf, and of suitors. also any change of such address which may be notified to him. 107. The directions of the paymaster for giving effect to these rules Paymaster's J^ •' o -o , m directions to shall be prepared and issued in such form and manner as the Treasury te issued and may from time to time direct, and shall be signed by such officers as ^goed as •' ' o J Treasury may the Treasury may prescribe or approve. prescribe. 108. It shall be the duty of the paymaster to comply with any in- Identification structions which may be given to him by the Treasury as to the means °^ ^^'^T'in" of identifying any person to whom a direction for payment of money or for delivery of securities out of Court is issued, when such identifi- cation may be deemed necessary. 109. "Whenever any amount or number of stock, shares, or other When stocks security in Court (in this rule referred to as the original security) is companies or converted into any other stock, shares, or other security (in this rule other securi- referred to as the substituted security), so that the description thereof ^grtg^, wiU differ from the description given of the original security in the order or other authority under which the paymaster acts respecting the same, the paymaster shall write off from the ledger credit to which the same may be standing the original security so converted, and shall" place to the same ledger credit a proportionate part of the substituted security ; and except in so far as any original security may be affected by any order brought to the Pay Office in due time for that purpose, the paymaster shall, as far as may be practicable, give effect to every part of any order or other authority under which he has been acting which shall refer to any such original security so converted as afore- said, or the dividends thereon, as if it referred to the substituted security or the dividends thereon, but no payments of income shall be made in pursuance hereof without an order in any case where the substituted security is in the nature of a terminable annuity. 110 "Whenever any allotment letters, scrip allotments, or other Whenallot- •' ... , jj 4! t 1 mentsoinew securities are allotted or assigned m respect ot any sums o± stocJr, or gtook are made of any shares or other security in Court, such allotment letters, scrip by companies. allotments, or other securities (excepting such of them, if any, as may be affected by any order of which the paymaster has notice) shall be sold. The money to arise by the said sale shall be paid (without deduction for brokerage) by the broker to the Pay Office Account at the bank and placed in the books of the Pay Office to the respective ledger credits to which the said stock or shares or other security are standing, in respect of which such allotment letters, scrip allotments, or other securities have been allotted or assigned. 111. These rules shall not apply in district registries to funds in Rules not^to Court or hereafter lodged in Court (p). triot regis- ( p) See mison v. AUlree, 27 Ch. D. 242, cited in note (a) to rule 3, ante, p. 217. 242 SUPREME COURT FUNDS RULES, 1884. Supreme Appendix No. 1. Court Funds [Form of Lodgment Schedule, referred to in Rule 5.] Rules, 1884. App. 1. LODGMBNT SOHEDUIiB. I In the High Court of Justice, Chancery Division. Date of Order, Title of Cause or Matter 1883. A. No. Ledger credit. [If same as title of cause, state " As above."] 18 FerBon to make the Lodgment. AmountB. ' lodged. Money. Seourities. [Specimen Lodgment Schedules.'] la the High Court of Justice, Chancery Division. 21st July, 1883. Re Morton, deceased, Morton v. Matthews. 1881. M. 391. Ledger credit. As above. Particulars of Funds to bo Person to make the Lodgment. Amounts. lodged. Money. Securities. Balance to be certified to be due on passing final ac- count as receiver. Balance of the 87?. 5s. 9d. certified to be due from him as executor after re- taining thereout his costs. Edmund James White (the receiver). James Matthews (de- fendant). £ s. d. £ s. d. In the High Court of Justice, Chancery Division. 15th June, 1883. A. V. B. 1883. A. 16. Ledger credit. As above. Jerson to make the Lodgment. Amoxmts. lodged. Money. Securities. rjonsola J. A. and J. B Do & 1 s. d. £ 15,000 1,500 «. d. Great Western Railway 4 per cent. Debenture Stock. Balance of cash to be certified by chief clerk, and to be invested and accumulated in con- sols. J. B. SITPREME COURT FUNDS RULES, 1884. 243 Appendix No. 2. \_Fonn of Payment Schedule, referred to in Huh 6.] Patmeni Schedule. la the High Court of Justioe, Chancery BiTision. Date of Order, Title of Cause or Matter 1883. A. No. Ledger credit. [If same as title of cause, state " As above."] Funds in Court. Court Funds Rules, 1884. App. 2. 18 Partioulars of payments, transfers, or other operations ordered. Payees and transferees, or separate accoonte. AmountSi Money. Beonrities. l^Speoimen Fayment Schedules.'] In the High Court of Justioe, Chancery Division. 2nd August, 1883. B. r. D. 1883. B. 165. Ledger credit. As above. Funds in Court | ^J"^; l'^,'f,^Zl ^" '''"*• '''^"^'"" Particulars of payments, transfers, or other operations ordered. Payees and transferees, or separate accounts. Pay Sell New 3 per Cent. An- nuities. Out of proceeds and balance of funds pay : — Costs of petitioners to be taxed. Legacy duty in respect of fund in Court. Divide residue in fourths, and pay as under : — One-fourth One-fourth Out of one-fourth .... Residue of last-named one-fourth Invest one-fourth in New 3 per Cent. Annuities, and carry over same, and ac- cumulate the dividends in like annuities. John Park John Smith (peti- tioner). Emma Joy (petitioner), wife of Wm. Joy, on her separate receipt. Eliza Joy (widow) .... Edward Sparkes. Separate account of WiUiamPeters (plain- tiff). Il2 Amounts. Money. 79 10 Seonrities. 730 244 Supreme Court Funds Rules, 1884. App. 2. SUPREME COURT FUNDS RULES, 1881. In the High Court of Justice, Chancery Divisiont 4th September, 1883. Smith V. Williams. 1871. S. 103. Ledger credit. In.ahove cause. Trust legacy of 800^. for Charles Pearce and Susan his wife, and their ohUdien and inoumbrancers. / 308?. 4«. Id. Consolidated 3 per Cent. Annuities, „ , . „ ,1 512?. lis. New 3 per Cent. Annuities, Funds m Court ( g^j^ ^^^^^ ^^ deposit. V 48?. is. 3d. Cash. Far^culars of payments, transfers, or other operations ordered. Sell consols Sell New 3 per Cent. An- nuities. Pay Pay taxed costs of George Turner. Pay residue of fjmds as under : — One-fifth Oat of one-fifth Residue of last-named one-fifth. Out of one-fifth Residue of last-named one-fifth. One-fifth One-fifth Payees and transferees, or separate accounts. ( David Shore . . ) \ Charles Weaver . . / George Turner. James Watson Birmingham Banking Company, mortga- gees. Henry Earle (as mort- Robert Wild and Jo- seph Hunter, trustees of Arthur Turner. Matthew Field William Long. Amounts. ]V{oney. £ » 45 100 140 Securities. £ 308 512 AppBsrpix No. 3. {Form of combined lodgment and Payment Schedule, referred to in Rule 8.] Lodgment anb Payment Schedule. In the High Court of Justice, Chancery Division. Date of Order, Title of Cause or Matter 1883. A. No. Ledger credit. [If same aa title of cause, state " As above."] I. LODOMENT. 18 Person to make the Lodgment. Amounts. lodged. .Money. ^ Securities. •■ ♦ SUPREME COURT FUNDS RULES, 1884. 245 II. Pathbnt. Funds (if any) already in Court and no-w dealt with. Particulars of payments, transfers, or other operations ordered. Payees and transferees, or separate accounts. Amounts. Money. Securities, Supreme Court Funds Rules, 1884. App. 3. Appendix No. 5. \_Form of Request foi- Lodgment of Money in Chancery Division, referred to in Rule 30.] HioH CoTiET OF Justice. — Chanoeey Division. I. — Request for Direction for Lodgment. Title of Cause or Matter v. 1883. A. No. to w^Sh M'^d I t^ ^™® ^^ ***^^ °* °^'^' ®'**^ " ^ a^°"^^-"] Date of order or certificate (if any) under which lodged 18 . Further particulars (i£ any) required to be stated The Paymaster is hereby requested to issue a direction to the bank to receive from the sum of £ for the ledger credit in the books of the Pay Office above specified. [Signature^ II. — Paymaster^ Direction for Lodgment. To the Cashier of the Bank of England (Law Courts Branch). Please receive the above-stated sum, and place it to the account of the Paymaster- General for the time being for and on behalf of the Supreme Court of Judicature. {Signature) III. — Bank Certificate of Receipt. To the Assistant Paymaster-General. , . „ , , Bank of England 18 . The above-stated sum has been this day received. [Entd.No. .] [Signature) Appendix No. 6. [Form of Request for Lodgment or Transfer of Securities in Chancery Division, referred ■■ ■ to in Rule 30.] HiaH Cqttet of Justice.— Chaitoeet Division. 1.— Request for Direction for Lodgment or Transfer of Securities. Title of Cause or Matter v. 1883. A. No. Ledger credit \ ry ^^^^ ^s title of cause, state " As above."] to which lodged. ) '- Authority is hereby requested for the lodgment or transfer to the account of the Paymaster-General for and on behalf of the Supreme Court of Judicature of the fecurities mentioned below, for the ledger credit m the books of the Pay OfiBce above specified. To be lodged or transferred by _ . Description and amount of securities . ,o- . \ Date of order (if any) 18 . [Signature) 246 SUPREME COURT FUNDS RULES, 1884. Supreme II. — Paymaster's Direction f of Lodgment or Transfer. Court Funds , , , i. j Rules 1884. Authority is hereby given for the lodgment or transfer of the ahove-mentionea App. 6. securities to the aooount of the Paymaster-General for the time being for and on behalf of the Supreme Court of Judicature. (Signature) III. — Certificate of Lodgment or Transfer: Address . Date 18 . It is hereby certified that in accordance with the above authority the securities herein mentioned have this day been lodged or transferred to the account of the Paymaster-G-eneral. [Signature) N.B. — Under rules made in pursuance of Acts of Parliament, the bank or other company in whose books the transfer herein authorized is made, must certify such transfer hereon, and return this document to Assistant Paymaster-General, Royal Courts of Justice, London. [Entd. No. .] Appendix No. 7. [Form of Request for Lodgment in Chancery Division in an Action for Debt or Damages, referred to in BuU 30.] HlOH COTJEI OF JUSTIOK. — ChANOEEY DIVISION. I. — Sequestfor Lodgment of Money in an Action for Debt or Damages (imder Order XXII. or Rule 26 of Order XXXI. Title of Cause or Matter v. 1883. A. No. which lodeed I ^^^ ^^™® ^ *^*^® °^ cause, state "As above."] The Paymaster is requested to issue a direction to the Bank to receive £ for the ledger credit in the books of the Pay Office above specified ; which amount is paid in* (Signature) * Insert one of the following statements, in accordance with the circum- stances: — (A.) " in satisfaction of claim of above-named" [ state name of party']. (B.) " against claim of above-named" [state name of party] "with defence deny- ing liability." (C.) " to security for costs account." n. — Paymaster^ Direction for Lodgment. To the Cashier of the Bank of England (Law Coui-ts Branch). Please receive the above-stated siun and place it to the account of the Paymaster- General for the time being for and on behalf of the Supreme Court of Judicature. (Signature) III. — Sonic Certificate of Receipt. To the Assistant Paymaster-General. Bank of England 18 The above-stated sum has been this day received. [Entd. No. .] <*'^"'*''"'''' SUPKEME COURT FUNDS RULES, 1884. 247 Appendix No. 11 (A.). Supreme . Court Funds IForm of Request for Payment of Money lodged "in satisfaction, referred to in Rules 1884. Rule 44 {A).} App. 11 (A). HiQH CouBT OF Justice, Division. Request for Payment of Money lodged, or appropriated, in satisfaction of Claim [under Rule 5 or Rule 11 of Order XXII}. Title of Cause or Matter v. 1883. A. No. Ledger credit to ) wMch. the money | [If same as title of cause, state " As aboTe."] is standing. J To the Assistant Paymaster-General. I hereby request that payment of the sum of £ , paid in in the above action may be made to* (Signature) {Address) (Sate) 18 . * N.B. — ^If this request ia signed by the plaintiff's solicitor (or other person on his behalf) the words " the said plaintiff" [naming him) must be inserted here. But if signed by the plaintiff, he may insert either " me, the said plaintiff," or "t/ie solicitor to me, the said plaintiff" {naming the person to be paid), and payment vrill be made accordingly. Such payment will be made by a crossed cheque or crossed form of receipt, which must be passed through a bank. [Direction No. .] AppEurrs No. 11 (B). [^Form of Request for Payment of Money lodged "against Claim," referred to in Rule 44 (B).] HiaH COTTBT OF JtTSTIOE, DIVISION. Request for Payment of Money lodged or appropriated against Claim, with Defence denying Liability [under Rule 6 or Rule 11 of Order XXII.'] Title of Cause or Matter v. 1883. A. No. Ledger credit to ) which the money } [If same as title of cause, state " As above."] is standing. ) To the Assistant Paymaster-General. I hereby notify that the sum of £ paid in in the above action has been accepted by the plaintiff in satisfaction, and I declare that due notice has been given of such acceptance thereof. And I request that payment of the said sum may be made to* {Signature) {Address) (Sate) 18 . • N.B. — If this request is signed by the plaintifl's solicitor (or other person on his behalf) the words " the said plaintiff" {naming him) must be inserted here. But if signed by the plaintiff, he may insert either "me, the said plaintiff," or, "the solicitor to me, the said plaintiff," {naming the person to be paid), and payment will be made accordingly. Such payment will be made by a crossed cheque or crossed form of receipt, which must be passed through a bank. [Direction No. .] 248 SUPREME COURT FUNDS RULES, 1884. Supreme Court Funds Rules, 1884. App. 12. Appendix No. 12. [Form of Hequest for a Remittance by Post of Money payable under an Order of the Court, referred to in Itule 48. Postal Address ■c c i ^ In the High Court of Justice, Reference to ^j^^ ^f ^l^ ^^ •HiB.tter, Order of Court. \ j,^^ ^f q^^^^' Date 18 . Division. 1883. A. No. 18 . Precise title of ledger credit of cause \ or matter in pay office books. | I, the undersigned, declare that I am the person to whom the sum of £ [or, a sum of £ half-yearly, or as the case may be"] is directed to be paid by the aboTe-cited order of the High Court of Justice, and I request the Paymaster- General to transmit to me by post, to the above address, the necessary direction or other authority to enable me to obtain payment of the said sum. (Signature) : We certify that the person who has signed this request is known to us, and is the person to whom the sum therein mentioned is directed to be paid by the above-mentioned Order. Signatures * | To the Assistant Paymaster- General, Royal Courts of Justice, London. * To be signed by two persons, one of whom must be a justice of the peace, a, commissioner to administer oaths, or a clerk in holy orders, or a notary public. Ith February, 1884. SELBORNE, C. We certify that these rules are made with the concurrence of the Commissioners of her Majesty's Treasury. HUGH C. E. CHILDERS. HERBERT J. GLADSTONE. 36 & 37 Vict. 0. 66. JUDIOATUEE ACT, 1873. 36 & 37 VICT. Cap. 66. An Act for the constitution of a Supreme Court, and for other purposes relating to, the better Administration of Justice in England ; and to authorise the transfer to the Appellate Division of such Supreme Court of the Jurisdiction of the Judicial Committee of Her Majesty's Privy Council. [5tli August, 1873.] Wheeeas it is expedient to constitute a Supreme Court, aud to make provision for the better administration of justice in England : And whereas it is also expedient to alter and amend the law relating to the Judicial Committee of her Majesty's Privy Council : Court. JUDICATUEE ACT, 1873. 249 Be it enacted, &c. as follows : — 36 & 37 Vict. 0. 66, B. 1. Preliminary. 1. This Act may be cited for all purposes as tlie " Supreme Court of Short title. Judicature Act, 1873 " (a). [a) Sect. 2 named Nov. 2iid, 1874, for tlie oommenoement of the Act. This section Commenoe- was repealed by s. 1 of the Judicature (Commencement) Act, 1874, o. 2 of which ment of the substituted Nov. 1st, 1875, as the date of the commencement, except as to any pro- Act visions directed to taie effect on the passing of the Act. Sect. 1 of the Judicature (Commencement) Act was itself repealed by the Statute Law Revision Act, 18S3, 46 & 47 Vict. c. 39, s. 1. PAET I. Constitution and Judges of Siqireme Court. 3. From and after tlie time appointed for the commencement of this Union of Act, the several Courts hereinafter mentioned, (that is to say,) the c^urtsfuto High Court of Chanceiy of England, the Court of Queen's Bench, the one Supreme Court of Common Pleas at "Westminster, the Court of ExchecLuer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, shall be united and consolidated together, and shall constitute, under and subject to the provisions of this Act, one Supreme Court of Judicature in England (i). (4) By ss. 9 and 33 of the Judicature Act, 1875, so much of this section as related to the Bankruptcy Court was repealed. But by s. 93 of the Bankruptcy Act, 1883, the London Banfauptoy Court is united with the Supreme Court, and its jurisdiction transferred to the High Court. 4. The said Supreme Court shall consist of two permanent divisions. Division of one of which, under the name of " Her Majesty's High Court of courtTnto a Justice," shall have and exercise original jurisdiction, with such Court of appellate jurisdiction from inferior Courts as is hereinafter mentioned, ^^J^^rt 0? and the other of which, under the name of "Her Majesty's Court of appellate Appeal," shall have and exercise appellate jurisdiction, with such ■'""^ otion. original jurisdiction as hereinafter mentioned as may be incident to the determination of any appeal (c). Ic) As to the jurisdiction of the Court of Appeal, see ss. 18, 19, post, pp. 252, 253. And see E. S. C. 1883, Ord. LVIII., infra. 5. Her Majesty's High Court of Justice shall be constituted as Constitution follows : — The first judges thereof shall be the Lord Chancellor, the Court^of Lord Chief Justice of England, the Master of the Polls, the Lord Chief Justice. Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, the several Vice-Chancellors of the High Court of Chancery, the Judge of the Court of Probate and of the Court for Divorce and Matri- monial Causes, the several puisne justices of the Courts of Queen's Bench, and Common Pleas respectively, the several junior barons of the Court of Exchequer, and the judge of the High Coui-t of Admiralty, except such, if any, of the aforesaid judges as shall be appointed ordinary judges of the Court of Appeal. 250 JUDICATURE ACT, 1873. 36 & 37 Vict. u. 66, s. 6. Subject to the provisions hereinafter contained, whenever the oflB.ce of a judge of the said High Court shall become vacant, a new judge may be appointed thereto by her Majesty, by letters patent. AU persons to be hereafter appointed to fill the places of the Lord Chief Justice of England, the Master of the Rolls {d), the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron (e), and their successors respectively, shall continue to be appointed to the same respective offices, with the same precedence, and by the same respective titles, and in the same manner, respectively as heretofore. Every judge who shall be appointed to fill the place of any other judge of the said High Court of Justice shall he styled in his appointment "Judge of her Majesty's High Court of Justice,^'' and (_/) shall be appointed in the same manner in which the puisne justices and junior barons of the Superior Courts of Common Law have been heretofore appointed (^). AH the judges of the said Court shall have in all respects, save as in this Act is otherwise expressly provided, equal power, authority, and jurisdiction ; and shall be addressed in the manner which is now cus- tomary in addressing the j udges of the Superior Courts of Common Law. The Lord Chief Justice of England for the time being shall be President of the said High Court of Justice in the absence of the Lord Chancellor. ((?) By the Judicature Act, 1881, s. 2, the Master of the RoUs was made a judge of the Court of Appeal only ; and by s. 5 of tlie same Act an additional judge of the High Court may be appoiuted in his place ; see the Act, post, p. 296. (e) These words in italics were repealed by the Statute Law Revision Act, 1883, 46 & 47 Vict. c. 39, s. 1. By Order in CouncU dated December 16, 1880, the ofBoes Chief Baron. Court of Appeal. Qualifications of judges. Kot required to be ser- jeants-at- law. (/) These words in italics were repealed by the Statute Law Revision Act, 1883, s. 1; the judges are now styled " Justices of the High Court " (Judicature Act, 1877, s. 4). (y) A proviso followed here as to the number of judges, which was repealed by Judicature Act, 1875, s. 3. [Sect. 6, as to the constitution of the Court of Appeal, was repealed'by the Judica- ture Act, 1876 ; the constitution of the Court of Appeal is now governed by sect. 4 of the latter Act, as modified by sect. 15 of the Appellate Jurisdiction Act, 1876.] [Sect. 7 relates to vacancies by resignation of generally.] judges, and effect of vacancies 8. Any barrister of not less than ten years' standing shall be qualified to be appointed a judge of the said High Court of Justice ; and any person who if this Act had not passed would have been qualified by law (A) to be appointed a lord justice of the Court of Appeal in Chancery, or has been a judge of the High Court of Justice of not less than one year's standing shall be qualified to be appointed an ordinary judge of the said Court of Appeal : Provided, that no person appointed a judge of either of the said Courts shall henceforth be required to take, or to have taken, the degree of serjeant-at-law. (A) Under 14 & 15 Viot. u. 83, s. 1, any barrister of fifteen years' standing might be appelated a Lord Justice. [Sects. 9 and 10, as to the office and precedence of judges, were repealed by judicature Act, 1876, and the substanoe of them re-enacted by sects. 6 and 6 of that Act.] JUDICATURE ACT, 1873. 251 [Sect. 11 (extended by sect. 8 of the Act of 1875 to the judge of the Admiralty 36 & 37 Vict. Court) saved the rights of patronage, &c., and obligations of existing judges.] u. 66, s. 12. 12. If, in any case not expressly provided for by this Act, a liability Provisions for to any duty, or any authority or power, not incident to the administra- duties rf""^'^ tion of justice in any Court, whose jurisdiction is transferred by this judges of the Act to the High Court of Justice, shaU have been imposed or conferred cl^ts. T^y any statute, law, or custom upon the judges or any judge of any of such Courts, save as hereinafter mentioned, every judge of the said High Court shall be capable of performing and exercising, and shall be liable to perform and empowered to exercise every such duty, authority, and power, in the same manner as if this Act had not passed, and as if he had been duly appointed the successor of a judge liable to such duty, or possessing such authority or power, before the passing of this Act. Any such duty, authority, or power imposed or conferred by any statute, law or custom, in any such case as aforesaid, upon the Lord Chancellor, the Lord Chief Justice of England, the Master of the EoUs, the Lord Chief Justice of the Common Pleas, or the Lord Chief Baron, shall continue to be performed and exercised by them respectively, and by their respective successors, in the same manner as if this Act had not passed. [Sects. 13 — 15 relate to salaries and pensions of judges. One clause of sect. 13 was repealed by the Act of 1875.] PAET II. Jurisdiction and Law. 16. The High Court of Justice shall be a Superior Court of Eecord, Jurisdiction and, subject as in this Act mentioned, there shaU be transferred to 9f ^^3\ and vested in the said High Court of Justice the jurisdiction which, at justice, the commencement of this Act, was vested in, or capable of being exercised by, all or any of the Courts following; (that is to say,) (1.) The High Court of Chancery, as a Common Law Court as well as a Court of Equity, including the jurisdiction of the Master of the EoUs, as a Judge or Master of the Court of Chancery, and any jurisdiction exercised by him in relation to the Court of Chancery as a Common Law Court ; (2.) The Court of Queen's Bench ; (3.) The Court of Common Pleas at Westminster ; (4.) The Court of Exchequer, as a Court of Eevenue, as well as a Common Law Court ; (5.) The High Court of Admiralty ; (6.) The Court of Probate ; (7.) The Court for Divorce and Matrimonial Causes; (8.) The London Court of Bankruptcy (?) ; (9.) The Court of Common Pleas at Lancaster ; (10.) The Court of Pleas at Durham ; (11.) The Courts created by Commissions of Assiae, of Oyer and Terminer, and of Gaol Delivery,' or any of such Commissions. 252 JUDIOATUEE ACT, 1873. 36 & 37 Vict. c. 66, B. 16. Jurisdiction not trans- ferred to High Court. Juriediction transferred to Court of Appeal. The jurisdiction by this Act transferred to the High Court of Justice shall include (suhject to the exceptions hereinafter contained) the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court or Chambers, or else- where, when acting as Judges or a Judge, in pursuance of any statute, law, or custom, and all powers given to any such Court, or to any such Judges or Judge, by any statute; and also all ministerial powers, duties, and authorities, incident to any and every part of the jurisdictions so transferred {k). (i) As to the London Court of Bankruptcy, see note {i) to sect. 3, ante, p. 249. (A) As to the jurisdiction of the High Court, see Salt v. Cooper^ 16 Ch. D. p. 549. A Chancery judge has jurisdiction (but see Fricstman v. Thomas, 9 P. D. 210) to grant or recall probate of a WiU, but as a matter of discretion wiU not exercise it (Finney V. Bunt, 6 Ch. D. 98 ; Re Ivory, 10 Ch. D. p. 375 ; Bradford v. Toimg, 26 Ch. D. 656). So, too, he may make an order on summons under 3 & 4 Will. 4, o. 42, s. 40, requiring the attendance of a witness before an arbitrator (Olarbrough v. Tooihill, 17 Ch. D. 787). 17. There shall not be transferred to or vested in the said High- Court of Justice, by virtue of this Act, — (1.) Any appellate jurisdiction of the Court of Appeal in Chancery, or of the same Court sitting as a Court of Appeal in Bankruptcy : (2.) Any jurisdiction of the Court of Appeal in Chancery of the County Palatine of Lancaster : (3.) Any jurisdiction usually vested in the Lord Chancellor or in the Lords Justices of Appeal in Chancery, or either of them, in relation to the custody of the persons and estates of idiots, lunatics, and persons of unsound mind (J) : (4.) Any jurisdiction vested in the Lord Chancellor in relation to grants of Letters Patent, or the issue of commissions or other writings, to be passed under the Great Seal of the United Kingdom : (5.) Any jurisdiction exercised by the Lord Chancellor in right of or on behalf of her Majesty as visitor of any College, or of any charitable or other foundation : (6.) Any jurisdiction of the Master of the Rolls in relation to records in London or elsewhere in England (m). [1) See Judicature Act, 1875, s. 1,'posf, p. 279. (m) The Master of the EoUs, it was held, could direct the amendment of a clerical error in a specification filed in the Patent Office {BeJo/mson's Fatent, 5 Ch. D. 503 ; Se Gare, 26 Ch. D. 105). 18. The Court of Appeal established by this Act shall be a Superior Court of Record, and there shall be transferred to and vested in such Court all jurisdiction and powers of the Courts following ; (that is to say,) (1.) All jurisdiction and powers of the Lord Chancellor and of the Court of Appeal in Chancery, in the exercise of his and its appellate jurisdiction, and of the same Court as a Court of Appeal in Bankruptcy («) : JUDICATURE ACT, 1873. 253 (2.) All jurisdiction and powers of the Court of Appeal in CHancery 36 & 37 Viot. of the county palatine of Lancaster, and all jurisdiction and °' ^^' ^' ^^- powers of the Chancellor of the duchy and county palatine of Lancaster when sitting alone or apart from the Lords Justices of Appeal in Chancery as a Judge of re-hearing or appeal from decrees or orders of the Court of Chancery of the county palatine of Lancaster (o) : (3.) All jurisdiction and powers of the Court of the Lord "Warden of the Stannaries assisted by his assessors, including all juris- diction and powers of the said Lord Warden when sitting in his capacity of Judge : (4.) All jurisdiction and powers of the Court of Exchequer Chamber : (5.) All jurisdiction vested in or capable of being exercised by her Majesty in Council, or the Judicial Committee of her Ma- jesty's Privy Council, upon appeal from any judgment or order of the High Court of Admiralty, or from any order in lunacy made by the Lord Chancellor, or any other person having jurisdiction in lunacy. («) No judge of the High Court can now re-hear a case, whether decided by Re-hearing, himself or any other judge, the power to re-hear being part of the appellate juris- diction {Me St. Nazaire Co., 12 Ch. D. 88) ; and see Re Hooper, 14 Oh. D. 1 ; Flower V. Lloyd, 6 Ch. D. 297, as to the power of the Appeal Court to re-hear an appeal. The Court of Appesil cannot hear an original petition, its jurisdiction being purely appellate {Re Hunrmen Co., 24 W. R. 37 ; 33 L. T. 371). (o) As to the Palatine Court, see Re Longdendale Spinning Co., 8 Ch. D. 160; Zee Palatine V. Nutiall, 12 Ch. D. 61 ; Tounsend v. Toivnsend, 23 Ch. D. 100. Court. 19. The said Court of Appeal shall have jurisdiction and power to Appeals from hear and determine appeals from any judgment or order, save aa ■°-'&" i^ourt. hereinafter mentioned {p), of her Majesty's High Court of Justice, or of any Judges or Judge thereof, subject to the provisions of this Act, and to such Rules and Orders of Court for regulating the terms and conditions on which such appeals shall be allowed, as may be made pursuant to this Act. For all the purposes of and incidental to the hearing and deter- mination of any appeal within its jurisdiction, and the amendment, execution, and enforcement of any judgment or order made on any such appeal, and for the purpose of every other authority expressly given to the Court of Appeal by this Act, the said Court of Appeal shall have all the power, authority, and jurisdiction by this Act vested in the High Court of Justice {q). (p) There is no appeal except by leave from an order made by consent, or only What orders as to costs in the discretion of the Court ; see sect. 49, post, p. 265 ; and there is no not appeal- appeal direct to the Court of Appeal from an order made at Chambers, except by able, leave ; see sect. 50, post, p. 266. By sect. 20 of the Appellate Jurisdiction Act, 1876, no appeal lies where it is provided that the decision of a Court or judge shall be final. {q) An appeal lies from a decieiou upon a question of fact ; but where the evi- Appeal on dence hag been taken vivd voce and the judge below has consequently had an oppor- question of tunity of observing the demeanour of the witnesses, the Court of Appeal will be fact, very slow to di£Eer from him {Bigsby v. Dickinson, 4 Ch. D. 21). [Sects. 20 and 21 are repealed by sect, 24 of the Appellate Jurisdiction Act, 1876.] 254 JUDICATURE ACT, 1873. 36 & 37 Viot. u. 66, s. 22. Transfer of pending business. Bules as to 22. From and after the commencement of this Act the several juris- dictions which by this Act are transferred to and vested in the said High Court of Justice and the said Court of Appeal respectively shall cease to he exercised, except by the said High Court of Justice and the said Court of Appeal respectively, as provided by this Act ; and no further or other appointment of any judge to any Court whose jurisdiction is so transferred shall be made except as provided by this Act : Provided, that in all causes, matters, and proceedings whatsoever which shall have been fully heard, and in which judgment shall not have been given, or having been given shaU not have been signed, drawn up, passed, entered, or otherwise perfected at the time appointed for the commencement of this Act, such judgment, decree, rule, or order may be given or made, signed, drawn up, passed, entered, or perfected respectively, after the commencement of this Act, in the name of the same Court, and by the same judges and officers, and generally in the same manner, in aU respects as if this Act had not passed ; and the same shall take effect, to all intents and purposes, as if the same had been duly perfected before the commencement of this Act ; and every judgment, decree, rule, or order of any Court whose jurisdiction is hereby transferred to the said High Court of Justice or the said Court of Appeal, which shall have been duly perfected at any time before the commencement of this Act, may be executed and enforced, and, if necessary, amended or discharged by the said High Court of Justice and the said Court of Appeal respectively, in the same manner as if it had been a judgment, decree, rule, or order of the said High Court or of the said Court of Appeal ; and all causes, matters and proceedings whatsoever, whether civil or criminal, which shall be pending in any of the Courts whose jurisdiction is so transferred as aforesaid at the commencement of this Act, shall be continued and concluded, as follows (that is to say), in the case of proceedings in error or on appeal, or of proceedings before the Court of Appeal in Chancery, in and before her Majesty's Court of Appeal; and, as to all other proceedings, in and" before her Majesty's High Court of Justice. The said Courts respec- tively shaU have the same jurisdiction in relation to aU such causes, matters and proceedings as if the same had been commenced in the said High Court of Justice, and continued therein (or in the said Court of Appeal, as the case may be) down to the point at which the transfer takes place ; and, so far as relates to the form and manner of pro- cedure, such causes, matters and proceedings, or any of them, may be continued and concluded, in and before the said Courts respectively, either in the same or the like manner as they would have been con- tinued and concluded in the respective Courts from which they shall have been transferred as aforesaid, or according to the ordinary course of the said High Court of Justice and the said Court of Appeal respec- tively (so far as the same may be applicable thereto), as the said Courts respectively may think fit to direct. 23. The jurisdiction by this Act transferred to the said High Court JXJDICATXTEE ACT, 1873. 255 of Justice and the said Court of Appeal respectively shall be exercised 36 & 37 Vict. (so far as regards procedure and practice) in the manner provided by °- ^^> ^- ^^- this Act, or by such rules and orders of Court as may be made pur- exercise of suant to this Act (?•) ; and where no special provision is contained in this Act or in any such rules or orders of Court with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised by the respective Courts from which such jurisdiction shall have been transferred, or by any of such Courts. {r) For the rules of Court now in force, see infra. 24. In every civil cause or matter commenced in the High Court Law and of Justice law and equity shall be administered by the High Court of oonoOTrraitlv Justice and the Court of Appeal respectively according to the rules administered, following : (1.) If any plaintiff or petitioner claims to be entitled to any equit- able estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a Court of equity, the said Courts respectively, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose properly instituted before the passing of this Act. (2.) If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the said Courts respectively, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence in any STiit or proceeding instituted in that Court for the same or the like purpose before the passing of this Act («). (s) See as to this sub-section, Eyre v. Sughes, 2 Ch. D. 148 ; Moatyn v. West Mostyn Co., 1 C. P. D. 145. (3.) The said Courts respectively, and every judge thereof, shall also have power to grant to any defendant in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him, all such relief against any plaintiff or petitioner as such defendant shall have properly claimed by his pleading. 256 JUDICATUEE ACT, 1873. 36 & 37 Viet. and as tlie said Courts respectively, or any judge thereoi, c. 66, s. 24. might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner ; and also aU such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other j)erson, whether already a party to the same cause or matter or not, who shall have been duly served with notice in ^riting of such claim pursuant to any rule of Court or any order of the Court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose ; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim, as if he had been duly sued in the ordinary way -by such defendant {(). .(<) See Ord. XIX. r. 3, and note (A) thereto, post, p. 355. (4.) The said Courts respectively, and every judge thereof, shall recognize and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing inci- dentally (u) in the course of any cause or matter, in the same manner in which the Court of Chancery would have recognized and taken notice of the same in any suit or proceeding duly instituted therein before the passing of this Act.. (k) See Williams v. Snowden, W. N. (1880), 124. (5.) No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction ; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto : Provided always, that nothing in this Act contained shaU. disable either of the said Courts from directing a stay of proceedings in any cause or matter pending before it if it shall think fit; and any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment,, decree, rule, or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said Courts respectively, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice ; and JUDICATURE ACT, 1873. 257 tte Court stall thereupon make such, order as shall be 36 & 37 Viot. iust(«). °- «g' °- ^*- (b) An action pending in one division cannot now be stayed by another division [Gariutt v. Fawcus, 1 Ch. D. 155) ; but a person can be restrained from instUuting proceedings {Sesant v. TFood, 12 Ch. D. 605; Cercle Co. v. Lavery, 18 Ch. D. 555, ■where a person claiming to be a creditor of a company was restrained from pre- senting a winding-up petition; Sart v. Sart, 18 Ch. D. 670). So where an action is brought against a company pending a winding-up petition, any application to stay proceedings in the action must be made to the Court in which the action is proceeding [Re Artistic Colour Co., 14 Ch. D. 502) ; and see Buckley, 4th ed. p. 206. As to the practice when a winding-up order has been made, see Ord. XLIX. r. 5, and note tiiereto, post, p. 465. , A judge of the Chancery Division cannot restrain a sheriff from dealing with goods taken in execution under a judgment of the Queen's Bench Division {Wright V. Redgrave, 11 Ch. D. 24 ; and see Powell v. Jewesbury, 9 Ch. D. p. 39 ; Crowle v. Russell, 4 C. P. D. 186). A County Court before which an administration suit is pending cannot stay pro- ceedings in the High Court in respect of claims proveable in the administoation suit {CobboldY. Pryke, 4 Ex. D. 315). As to staying proceedings to enforce a compromise, see Eden v. Naish, 7 Ch. D. 781 ; and as to staying proceedings on the ground that there is another action pending for the same matfer, see McSenry v. Lewis, 22 Ch. D. 397 ; Peruviar^ Co. v. BockwoUt, 23 Ch. D. 225; Myman v. Selm, 24 Ch. D. 531. (6.) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the said Courts respectively, and every judge thereof, shall recognise and give effect to aU legal claims and demands, and aU estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom, or created by any- statute, in the same manner as the same would have been recognised and given effect to if this Act had not passed by any of the Courts whose jurisdiction is hereby transferred to the said High Court of Justice. (7.) The High Court of Justice and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act in every cause or matter pending -before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, aU such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter ; so that, as far as possible, aU matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided (w). iw) As to this sub-section, see In the goods of Thwrp, 3 P. D. 76 ; Sedkyv. Bates, 13 Ch D. 498 ; Dowdeswell y . Dowdeswell, 9 Ch. D. 294 ; and (as to cross actions) Thomson y. South Eastern Sy., 9 Q. B. D. 320. Under it the Court may enforce a compromise entered into pending an action on a summons in the action {Eden v. Kaish 7 Ch D 781) ; and see further as to enforcing a compromise, Scully v. Lord MnaU,% Ch. D.' 668 ; Be Gaudet, 12 Ch. D. 882 ; Hart v. mrt,U Ch D. 670. «in 1nT,o- L the final iudgment in an action remains unsatisfied, the action is a "cJ^e^r inZrTendtol'' within this sub-section [Salt v. Cooper, 16 Ch. D. 544) ; M. 358 JUDICATUEE ACT, 1873. 36 & 37 Vict, see, however, Zeggott r. WesUm, 12 Q. B. D. 287. " A cause is said to be pending 0. 66, s 24 ^^ Court of justice when any proceeding can be taken in it " (Re Clagett, 20 Ch. D. p. 653). Rules of law upon certain points. Statutes of lamitation inapplicable to express trusts. Equitable waste. Suits for possession of land by mortgagors. Assignment of debts and choses in action. 25. And whereas it is expedient to take occasion of the union of the several Courts -whose jurisdiotion is hereby transferred to the said High Court of Justice to amend and declare the law to he hereafter administered in England as to the matters next hereinafter mentioned : Be it enacted as follows : — [Sub-sect. 1, as to the administration of assets of insolvent estates, was repealed, and sect. 10 of the Judicature Act, 1875, substituted for it ; see this section, post, p. 279.] (2.) No claim of a cestui que trust against his trustee for any pro- perty held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations {x). (x) See 3 & 4 Will. 4, c. 27, s. 25 ; 37 & 38 Vioti c. 57, s. 10 ; Lewin, p. 733 et aeq., 7th ed. ; this section of the Statute of Limitations is now, it seems, ex- tended to personal estate {Banner v. Berridge, 18 Ch. D. p. 262). (3.) An estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate. (4.) There shall not, after the commencement of this Act, be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity (y). (y) See Chambers v. Kingham, 10 Ch. D. 743 ; Hyde v. Warden, 3 Ex. D. 72. (5.) A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person («). («) _A mortgagor in receipt of the rents and profits may maintain an action for an injunction to restrain an injury to the mortgaged property without joining the mortgagee ; see Fairelough v. Marshall, 4 Ex. D. 37. (6.) Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, JUDICATURE ACT, 1873. 259 or other person from whom the assignor -would have been 36 & 37 Vict. entitled to receive or claim sneh debt or chose in action, shall c- 66. «■ 25. be, and be deemed to have been efEectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor: Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to caU upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees (a). (a) This sub-section relates only to procedure, and does not make that an assign- Assignment ment which was not so before the Judicature Acts, ^.g.a, cheque {Schrixder v. Central of choses in Bank, 24 W. E. 710). action. As to the ejBEeot of the words " subject to all equities, &c.," see Young t. Kitchin, 3 Ex. D. 127 ; ExpaHe Theys, 22 Ch. D. 122 ; afBrmed, (C. A.) 25 Oh. D. 587. The proviso at the end of the sub-section only applies to a case where there has been an absolute assignment in writing [Me Sutton, 12 Ch. D. 175). As to what is such an assignment, see Southwell y. Scotter, 49 L. J., Q. B. 356 ; Brice v. Bannister, 3 Q. B. D. 569 ; Buck v. Bobson, ibid. 686 ; B3:.parte Sail, 10 Ch. D. 615 ; British Waggon Co. v. Lea, 5 Q. B. D. 149. An assignment of a mortgage debt on a sub-mortgage is not, it seems, an "absolute assignment" within the rule [National Provincial Bank v. Harle, 6 Q. B. D. 626) ; seem, as to a deed by which debts are assigned to the plaintiff upon trust to receive the same, and thereout pay himself a sum due to him and hand the surplus to the assignor [Burlinson v. Sail, 12 Q. B. D. 347); and see Walker v. Bradford Bank, 12 Q. B. D. 511. As to payment into Trustee Court under the Trustee Relief Act, see ante, p. 50 et seq. Relief Act. (7.) Stipulations in contracts, as to time or otherwise, which would Stipulations not before the passing of this Act (J) have been deemed to be gfgg^* ^f or to have become of the essence of such contracts in a Court contracts, of equity, shall receive in all Courts the same construction and efEect as they would have heretofore received in equity. [b) By Judicature Act, 1875, s. 10, the reference to the date of the passing of the Act of 1873 is to be deemed to refer to the date of the commencement of the Act ; and by Judicature (Commencement) Act, 1874, s. 2, the date fixed for the com- mencement of the Act of 1873 was November Ist, 1875. As to time being of the essence of the contract, see Noble v. JEdwardes, 5 Ch. D. 378. (8.) A mandamus or an injunction may be granted, or a receiver Injunctions appointed by an interlocutory order of the Court in all cases ^ ^^°^ ^^^ ' in which it shall appear to the Court to be just or convenient that such order should be made ; and any such order may be made either unconditionally or upon such terms and conditions as the Coxtrt shall think just ; and if an injunction is asked, either before, or at, or after the hearing of any cause or s2 260 JUDICATURE ACT, 1873. 36 & 37 Vict, c. 66, s. 25. Damages by collisions at Infants. Cases of conflict not enumerated. Abolition of terms. matter, to prevent any threatened or apprehended waste or trespass, such injunction may he granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to he restrained under any colour of title ; and whether the estates claimed hy hoth or hy either of the parties are legal or equitahle (c). (c) See Ord. L. r. 6, and notes thereto, post, p. 467. (9.) In any cause or proceeding for damages arising out of a collision between two ships, if hoth ships shall he found to have been in fault, the rules hitherto in force in the Court of Admiralty, so far as they have been at variance with the rules in force in the Courts of Common Law, shall prevail. (10.) In questions relating to the custody and education of infants the rules of equity shall prevail {d). (d) As to the custody and education of infants, see the Custody of Infants Act, 1873, and notes thereto, ante, p. 97 ; iSe MM Broum, 13 Q. B. D. 614. (11.) Generally in all matters not hereinbefore particularly men- tioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with refer- ence to the same matter, the rules of equity shall prevail (e). (e) An executor or administrator is now in the position of a gratuitous bailee, both at law and in equity, and cannot be charged with loss of the assets without wilful default [Job T. Job, 6 Ch. D. 664). So where an executor or administrator voluntarily pays one creditor in full before judgment, in an administration action, the equity rule prevails, and the executor will be allowed the payment in his accounts {Be Zadcliffe, 7 Ch. D. 733). Agaia, a person occupying imder an executory agreement for a lease no longer becomes a mere tenant from year to year by the payment of rent, but must be treated as holding on the terms of the agree- ment {Walsh v. Lonsdale, 21 Ch. D. 9 ; 31 W. R. 110). See also Anderson v. Bank of British Columbia, 2 Ch. D. pp. 654, 658 (discovery) ; Kendall v. Samilton, 4 App. Cas. 504 (joint and several Uability of partners on contracts) ; Heath v. Fugh, 6 Q. B. D. p. 362 (mortgagor) ; Redgrave v. Hurd, 20 Ch. D. p. 12 (rescission of contracts). The sub-section applies only to matters of substantive law {La Grange v. McAndrew, 4 Q. B. D. 210) ; in matters of practice, where no rule is laid down by the orders, and the old practice in equity and at law differed, the more convenient rule will be followed {Newbiggin Gas Co. v. Armstrong, 13 Ch. D. 310 ; Nurse v. Bwnford, ibid. 764). PAET ni. Sittings and Distribution of Business. 26. The division of the Ifegal year into terms shall be aboHshed so far as relates to the administration of justice; and there shall no longer be terms applicable to any sitting or business of the High Court of Justice, or of the Court of Appeal, or of any commissioners to whom any jurisdiction may be assigned under this Act ; but in all other cases in which, under the law now existing, the terms into which the legal year is divided are used as a measure for determining the time at or within which any act is required to be done, the same may JUDICATUEE AC3T, 1873. 261 continue to be referred to for the same or tlie like purpose, unless and 36 & 37 Vict, until provision is otherwise made by any la-wful authority. Subject to "• ^^> "■ ^^- rules of Court, the High Court of Justice and the Court of Appeal, and the judges thereof respectively, or any such commissioners as afore- said, shall have power to sit and act, at any time, and at any place, for the transaction of any part of the business of such Courts respec- tively, or of such judges or commissioners, or for the discharge of any duty which by any Act of Parliament, or otherwise, is required to be discharged during or after term (/). (/) As to sittings and vacations, see Ord. LXIII. and notes thereto, post, p. 534. Notwithstanding this section " terms " may still be referred to for some purposes {College of Christ v. Martin, 3 Q. B. D. 16). ' [Sect. 27 gives power by Order in OounoU to regulate vacations ; see Ord. LXIII. post, p. 534.] 28. Provision' shall be made by rules of Court for the hearing, in Sittings in London or Middlesex, during vacation by judges of the High Court ^^'^^^°^- of Justice and the Court of Appeal respectively, of all such applications as may require to be immediately or promptly heard. 29. Her Majesty, by commission of assize or by any other commis- Jurisdiction sion, either general or special, may assign to any judge or judges of jTi''^n^^ °f the High Court of Justice or other persons usually named in commis- on circuit, sions of assize, the duty of trying and determining within any place or district specially fixed for that purpose by such commission, any causes or matters, or any questions or issues of fact or of law, or partly of fact and partly of law, in any cause or matter depending in the said High Court, or the exercise of any civil or criminal jurisdiction capable of being exercised by the said High Court ; and any commission so granted by her Majesty shall be of the same validity as if it were enacted in the body of this Act ; and any commissioner or commis- sioners appointed in pursuance of this section shall, when engaged in the exercise of any jurisdiction assigned to him or them in pursuance of this Act, be deemed to constitute a Court of the said High Court of Justice ; and, subject to any restrictions or conditions imposed by Rules of Court and to the power of transfer, any party to any cause or matter involving the trial of a question or issue of fact, or partly of fact and partly of law, may, with the leave of the judge or judges to whom or to whose division the cause or matter is assigned, require the question or issue to be tried and determined by a commissioner or com- missioners as aforesaid, or at sittings to be held in Middlesex or London as hereinafter in this Act mentioned, and such question or issue shall be tried and determined accordingly. A cause or matter not involving any question or issue of fact may be tried and determined in. Hke manner with the consent of aU the parties thereto. 30. Subject to Eules of Court, sittings for the trial by jury of causes Sittings for and questions or issues of fact shall be held in Middlesex and London, *" Londo^^^ and such sittings shall, so far as is reasonably practicable, and subject and Middle- 262 JUDICATUEE ACT, 1873. 36 & 37 Viet. 0. 66, 0. 30. Diviaions of the High Court of Justice. Rules of Court to provide for distribution of business. to vacations, be held coutinuously tluougliout the year by as many . judges as the business to be disposed of may render necessary. Any judge of the High Court of Justice sitting for the trial of causes and issues in Middlesex or London, at any place heretofore accustomed, or to be hereafter determined by Eules of Court, shall be deemed to con- stitute a Court of the said High Court of Justice. 31. Por the more convenient despatch of business in the said High Court of Justice (but not so as to prevent any judge from sitting vrhen- ever required in any Divisional Court, or for any judge of a different division from his own,) there shall be in the said High Court five divisions consisting of such number of judges respectively as herein- after mentioned. Such five divisions shall respectively include, imme- diately on the commencement of this Act, the several judges following ; (that is to say,) (1.) One division shall consist of the following judges ; (that is to say). The Lord Chancellor, who shall be president thereof, the Master of the EoUs, and the Vice-Chancellors of the Court of Chancery, or such of them as shall not be appointed ordinary judges of the Court of Appeal. [The section provides similarly for the judges of the Queen's Bench, Common Pleas, Exchequer, and Probate, Divorce and Admiralty Divisions.] Any judge of any of the said divisions maybe transferred by her Majesty, under her royal sign manual, from one to anothet of the said divisions. Upon any vacancy happening among the judges of the said High Court, the judge appointed to fiU such vacancy shall, subject to the provisions of this Act, and to any Eiiles of Court which may be made pursuant thereto, become a member of the same division to which the judge whose place has become vacant belonged (£). (ff) By an Order in Council dated December 16th, 1880, the Queen's Bench, Common Pleas and Exchequer Divisions were consolidated into one division, called the Queen's Bench Division, under the presidency of the Lord Chief Justice of England, and the o£H.ces of Chief Justice of the Common Pleas and Chief Baron were abolished. The section originally contained a provision as to supplying any deficiency in the munber of judges, but this vras repealed by the Statute Law Kevision Act, 1883, sect. 1. [Sect. 32 gives povrer to alter the divisions by Order in Council ; see note to sect. 31.] 33. All causes and matters which may be commenced in, or which shall be transferred by this Act to, the High Court of Justice, shall be distributed among the several divisions and judges of the said High Court, ia such manner as may from time to time be determined by any Eules of Court, or Orders of Transfer, to be made under the authority of this Act J and in the meantime, and subject thereto, all such causes and matters shall be assigned to the said divisions respectively, in the manner hereinafter provided. Every document by which any cause or matter may be commenced in the said High Court shall be marked JUDICATURE ACT, 1873. 263 with, the name of the division, or -with the name of the judge, to which 36 & 37 Viot. or to -whom the same is assigned. o. 66, s. 33. 34. There shall be assigned (subject as aforesaid) to the Chancery Assigument Division of the said Court : of certain (1.) All causes and matters pending in the Court of Chancery at the p^IIj^m" commencement of this Act : divisions of (2.) All causes and matters to be commenced after the commence- guWeot to ' ment of this Act, under any Act of Parliament by which rules, exclusive jurisdiction, in respect to such causes or matters, has been given to the Court of Chancery, or to any judges or judge thereof respectively, except appeals from County Courts : * (3.) All causes and matters for any of the following purposes : The administration of the estates of deceased persons ; The dissolution of partnerships or the taking of partner- ship or 'other accounts ; The redemption or foreclosure of mortgages ; The raising of portions, or other charges on land ; The sale and distribution of the proceeds of property subject to any lien or charge ; The execution of trusts, charitable or private ; The rectification, or setting aside, or cancellation of deeds or other written instruments ; The specific performance of contracts between vendors and purchasers of real estates, including contracts for leases ; The partition or sale of real estates ; The wardship of infants and the care of infants' estates (A). There shall be assigned (subject as aforesaid) to the Queen's Bench Division of the said Court : (1.) All causes and matters, civU and criminal, pending in the Court of Queen's Bench at the commencement of this Act : (2.) All causes and matters, civil and criminal, which would have been within the exclusive cognizance of the Court of Queen's Bench in the exercise of its original jurisdiction, if this Act had not passed. [The remainder of the section similarly assigns to the Common Pleas, Exchequer, and Probate, Divorce and Admiralty Divisions (1), AU matters pending in the Court of Common Pleas, &c., respectively ; and (2), causes and matters which would have been within the exclusive cognisance of the Court of Common Pleas, &c., respectively, if the Act had not passed. By the Order in Council of Deo. 16th, 1880, all causes, matters, and other proceedings assigned or belonging to the Queen's Bench, Common Pleas, and Exchequer Divisions respectively were assigned to the Queen's Bench Division.] (A) This enumeration does not exhaust all the actions which were subject to Jurisdiction the old equity jurisdiction {Sobers v. Jones, 7 Ch. D. 349). An action falling of the within one of the classes enumerated will not be sent for trial with a jury unless it Chancery involves a simple issue of fact, the determination of which will decide the action Division. (Gardinall v. Oardinall, 25 Ch. D. 772). But see JPhilips v. BeaU, 26 Ch. D. 621, cited in note (z) to Ord. XXXVI. r. 1. Where a partnership action, instituted in the Common Pleas Division, was con- sidered by the Court better adapted for a reference than for a transfer to the Chancery Division, such transfer was refused ( Warner v. Dell, "W. N. (1876), 269) ; 264 JUDICATURE ACT, 1873. 36 & 37 Vict, but see Sillmm v. Mayhew, 1 Ex. D. 132, where a eounterolaim involving the right 0. 66, 8. 34. to specific performance was transferred to the Chancery Division by a judge of the Common Pleas Division, though the action was in the Exchequer Division. Where the defendant in an action in the Common Pleas Division relied on an equity to have a deed set aside or reformed as part of his defence, that Division held that it could give effect to the equity so far as was incidental to the purposes of the defence {Mostyn-Y. The West Mostyn Coal and Iron Co., 1 C. P. D. 146). A judge of the Chancery Division has now, it is said, jurisdiction (but see Priest- man V. Thomas, 9 P. D. 210) to grant or recall probate of a will, but he would not be using a sound discretion if he were to exercise that jurisdiction {Finnet/ v. Stmt, 6 Ch. D. 98; Bradford Y. Yomg, 26 Ch. D. 656). Option to choose division. Power of transfer. Xiondon and Middlesex and on circuits. Powers of one or more judges not constituting a divisional Court, [Sect. 35, giving a plaintiff option to choose in what division he will sue, is repealed by Judicature Act, 1875, and substantially re-enacted by sect. 11 of that Act.] 36. Any cause or matter may at any time, and at any stage thereof, and either with or without application from any of the parties thereto, be transferred by such authority and in such manner as rules of Court may direct, from one division or judge of the High Court of Justice to any other division or judge thereof, or may by the like authority be retained in the division in which the same was commenced, although such may not be the proper division to which the same cause or matter ought, in the first instance, to have been assigned («). («) As to transfers, see Ord. XLIX. rr. I — 4, and notes thereto, post, pp. 463 — 465. 37. Subject to any arrangements which may be from time to time made by mutual agreement between the judges of the said High Court, the sittings for trials by jury in London and Middlesex {k), and the sittings of judges of the said High Court under commissions of assize, oyer and terminer, and gaol delivery, shall be held by or before judges of the Queen's Bench, Common Pleas, or Exchequer Division of the said High Court ; provided that it shall be lawful for her Majesty, if she shall think fit, to include in any such commission any ordinary judge of the Court of Appeal or any judge of the Chancery Division to be appelated after the commencement of this Act, or any serjeant- at-law, or any of her Majesty's counsel learned in the law, who, for the .purposes of such commission, shall have all the power, authority, and jurisdiction of a judge of the said High Court (J). {k) The judges of the Probate, Divorce and Admiralty Division are included (Judicature Act, 1875, a. 8). {I) The words in itaUos are repealed (Statute Law Revision Act, 1883, b. 1). [Sect. 38, relating to the rota of judges for election petitions, is repealed by Statute Law Revision Act, 1883, o. 1. See now Judicature Act, 1881, s. 16.] 39. Any judge of the said High Court of Justice may, subject to any rules of Court, exercise in Court or in chambers all or any part of the jurisdiction by this Act vested in the said High Court, in all such causes and matters, and in all such proceedings in any causes or matters, as before the passing of this Act might have been heard in Court or in chambers respectively, by a single judge of any of the Courts whose jurisdiction is hereby transferred to the said High Court, or as may be directed or authorized to be so heard by any rules of Court to be here- JUDICATUEE ACT, 1873. 266 after made. In all such oases, any judge sitting in Court shall be 36 & Zl Vict, deemed to constitute a Court (m). °- ^^' "• ^^- (m) In the Chancery Division an application for a charging order under sect. 28 of the Solicitors Act, 1860, is properly made by petition in the action {Broivn v. Troiman, 12 Ch. D. 880) ; though in the Queen's Bench Division the order may be made at chambers {Clover v. Adams, 6 Q. B. D. 622)'. As to the jurisdiction at chambers generally, see ffiW«sa« V. JKayAew, lEx.D. 132; Bakew. Oate,2Q.B. D. 171 ; Soch V. Boar, 43 L. T. 425. An order for attachment will not in the Chancery Division be made on summons [Re Knight, Knight v. Gardiner, W. N. (1883), 162) ; secus, in the Queen's Bench Division {Salm Kyrburg-v. Posnanski, 13 Q. B. D. 218). [By sect. 40 such causes and matters as are not proper to be heard by a single judge were to be heard by Divisional Courts. Sect. 41 made provision for Divi- sional Courts, for the business of the Queen's Bench, Common Pleas, and Exche- quer Divisions. By sect. 42, business arising out of any cause or matter assigned to the Chancery Division is to be transacted and disposed of in the first instance by one judge only, as heretofore accustomed, and every cause or matter commenced in the Chancery Division of the said High Court is to be assigned to one of the judges thereof, by marking the same with the name of such of the said judges as the plaintiff or petitioner (subject to the power of transfer) may in his option think fit. See now Ord. V. r. 9, post, p. 312. By sect. 43, Divisional Courts might be held for the transaction of business assigned to the said Chancery Division; and sect. 44 contains a provision similar to that in sect. 43, as to the Probate Division. All these five sections, so far as inconsistent with sect. 17 of the Appellate Juris- diction Act, 1876, were repealed by that section ; and the whole of sect. 43, and parts of sects. 40, 42 and 44, were repealed by the Statute Law Eevisiou Act, 1883.] [Sect. 45 provides that appeals from inferior Courts shall be determined by Divisional Courts. It is amended by Judicature Act, 1884, s. 8.] 46. Subject to any Rules of Court, any judge of tlie said High Cases and Court, sitting in the exercise of its jurisdiction elsewhere than in a ^g reserved Divisional Court, may reserve any case, or any point in a case, for the for or directed consideration of a Divisional Court, or may direct any case, or point in t°fore ^^t a case, to be argued before a Divisional Court ; and any Divisional sional Courts. Court of the said High Court shall have power to hear and determine any such case or poiut so reserved or so directed to be argued (n). (») See Judicature Act, 1875, s. 22, and Appellate Jurisdiction Act, 1876, s. 17. [Sect. 47 relates to Crown cafies reserved ; part of it was repealed by the Statute Law Revision Act, 1883.] [Sect. 48, relating to motions for new trials, was repealed by Judicature Act, 1875.] 49. No order made by the High Court of Justice or any judge What orders thereof, by the consent of parties (o) or as to costs only, which by law gatjedTto ^ are left to the discretion of the Court (p), shall be subject to any ap- appeal, peal, excej)t by leave (q) of the Court or judge mating such order. (o) As to orders by consent, see Dan. 687; Att.-Gen. v. Tomline, 7 Ch. D. 388 ; Orders by Davis V. Davis, 13 Ch. D. 861. A consent given by the authority of the client can- consent, not be arbitrarily withdrawn ; if it is given under a mistake it can be withdrawn, but only on application to the Court {Harvey v. Croydon Sanitary Authority, 26 Where a case has been settled without the interference of the Court, and the parties subsequently differ as to the terms, the Court will treat the matter as if no order had been made (Practice, W. N. (1884), 91). ^ xv r, _l • • ( v) The rule against appealing for costs in the discretion of the LouTt is impera- Appeals for tire- Bee SarrisY. Aaron, i Ch. D. 749; 46 L. J. Ch. 488; 25 W. 11.353; 36 costs. T, T 43 • Sarvham v. Shacklock, 19 Ch. D. 215 ; Llmover v. Somfray, Fhtllips v. Zlani>ver,'ibid.p. 231; Graham v. Campbell, 7 Ch. D. 490 ; 47 L. J. Ch. 593 ; 26 W. B. 336 • 38 L. T. 195. No appeal lies from a judge's order as to the plamtifi's 266 JUDICATURE ACT, 1873. Order merely directing a party guilty of contempt to pay the costs may be appealed from. , where the applica- tion to commit is refused. Costs of trustees and mortgagees. 36 & 37 Vict, costs in an interpleader issue {Eartmont v. Toster, 8 Q. B. D. 82), nor from an c. 66, 8. 49. order giving costs out of an estate Trhich in effect belongs to the defendant, the successful party {Butcher v. Fooler, 24 Ch. D. 273) ; nor from an order as to the costs of an inspection (ifi«cAeK v. Dfflj-fej/ Co., lOQ. B.D. 457) ; andBee Ferkinsv. Seresford, 47 L. T. 515. An order declaring that a defendant has committed a breach of an injunction, but giving no directions, except that he pay the costs of the application to commit, is not within the section, and may be appealed from {Witt v. Corcoran, 2 Ch. D. 69 ; 45 L. J. Ch. 603 ; 24 W. E. 501 ; 34 L. T. 550 ; J?e Clements, 46 L. J. Ch. 375). Where the application is refused, however, there can be no appeal {Ashworth v. Outram (No. 2), 5 Ch. D. 953 ; Sope v. Carnegie, 4 Ch. 264 ; and see also Krehl t. Burrell, "W. N. (1883), 177) ; but see cmitra, Jarmain v. Chatterton, 20 Ch. D. 493. In the same way, where at the trial the Court simply orders the defendant to pay the costs of the action, an appeal will lie ; for no such order could have been made without admitting that the plaintiff was entitled to bring the action, and this is therefore the real question at issue in the appeal {Dicks v. Tatea, 18 Ch. D. 76). The right of a trustee or mortgagee to costs out of the estate is a matter of contract ; such costs are not in the discretion of the Court, in the ordinary sense of the term, and if a trustee or mortgagee is deprived of costs or ordered to pay them he may appeal ; for the real question involved in the appeal is whether he haa been guilty of misconduct {Se Sarah Knight, 26 Ch. D. p. 90 ; Cotterell v. Straiten, 8 Ch. 295 ; Turner v. Bancock, 20 Ch. D. 303 ; Re Chennell, 8 Ch. D. 492 ; 47 L. J. Ch. 583 ; 26 W. R. S95 ; 38 L. T. 494) ; jRe Soskin, 6 Ch. D. 281, and Taylor v. Dowlen, 4 Ch. 697, are overruled. So an official liquidator may appeal when refused costs out of the estate {F.e Silver Valley Mines, 21 Ch. D. 381) ; and a solicitor ordered to pay costs personally may appeal {Be Bradford, W. N. (1883), 230 ; reversing S. C. below, 11 Q. B. D. 373 ; Fe Milton, 32 W. R. 238). Where in a suit between incumbrancers to ascertain priorities in a fund, the Court decided in favour of one of the defendants, and ordered the costs of the action to be paid out of the fund, an appeal by the successful defendant as to the costs was allowed {Johnstone v. Cox, 19 Ch. D. 17). If a decision, although relating to costs, also involves a question of law and principle, it is clearly the subject of appeal {Fe Fio Grande Do Sul Steamship Co., 5 Ch. D. 282; 46 L. J. Ch. 277 ; 25 W. R. 328 ; 36 L. T. 603 ; see also Mx parte Waddell, 6 Ch. D. 331). And where aninnooent vicar and churchwardens had been ordered to pay the costs of a suit to which they were parties merely in their repre- sentative character, it was 'said that an appeal by them for costs only would have been entertained {Etherington v. Wilson, 1 Ch. D. 160 ; 45 L. J. Ch. 153 ; 24 W. R. 303 ; 33 L. T. 652). The section does not apply to a master or a district registrar, and therefore a judge can vary as to costs the order of a district registrar, dismissing an action without costs {Foster v. Fdwards, 48 L. J. C. P. 767). No appeal lies to the House of Lords for costs alone {Inglis v. Mansfield, 3 CI. & F. 362 ; Metropolitan Asylum District v. ffiB, 5 App. Cas. 582). But an appeal against an order which imposes as a condition of having a new trial the payment within a certain time of the costs of the first trial is not within the rule {ibid.). {q) If a defendant to an action which is dismissed without costs wishes to appeal, he should apply when the action is dismissed ; leave to appeal wiU. not be given on an application by him after the plaintiff has given notice of, and set down, an appeal {May V. Thompson (2), W. N. (1882), 63). 50. Every order made by a judge of the said Higli Court in Cham'bers, except orders made in tlie exercise of such, discretion as aforesaid, may te set aside or discharged upon notice by any Divi- sional Court, or by the judge sitting in Court, according to the course and practice of the division of the High Court to which the particular cause or matter in which such order is made may be assigned (r) ; and no appeal shall lie from any such order, to set aside or discharge which no such motion has been made, unless by special leave of the judge by whom su6h order was made, or of the Court of Appeal is). {t) If the case has been heard in Chambers only and not adjourned into Court, the intending appellant should move to discharge the order, so as to give the judge an opportunity of stating his reasons (Solloway v. Chesion, 19 Ch. D. 616 ; but see Where a question of principle is involved an appeal Ues. Leave to appeal. As to dis- charging orders made in chambers. JUDICATURE ACT, 1873. 267 eonira, Se Sutler, 21 Ch. D. 131. The motion should be made -within twenty-one 36 & 37Viot. days from the time the order was pronounced or the appellant first had notice of it, o. 66, s. 60. or from the refusal, if the order is refused (i?e Woodbridge, W. N. (1884), 187 ; Ite Sardwidge, ibid. 204 ; Seatky v. Newton, 19 Ch. D. 326). (s) The Court of Appeal only requires to be satisfied that the judge has so fully heard the ease that he does not desire to hear further argument. The judge's o-wn certificate is the best means of proving this ; but if no certificate has been obtained, application should be made to the Court of Appeal for leave to set down the appeal ■without any certificate, which will be granted as a matter of course (iJe Mmm, 6 Ch. D. 346 ; Dickson v. Sarrison, 9 Ch. D. 243 : Northampton Co. v. Midland Waggon Co., 7 Ch. D. 500). 61. Upon the request of the Lord Chancellor, it shall be lawful Provision for for any judge of the Court of Appeal, who may consent so to do, vacancy in to sit and act as a judge of the said High Court or to perform any ^^ office of other official or ministerial acts for or on behalf of any judge absent ■*" " from illness or any other cause, or in the place of any judge whose office has become vacant, or as an additional judge of any division ; and while so sitting and acting any such judge of the Court of Appeal shall have all the power and authority of a judge of the said High Court {t). {t) See GJiopman t. SealProperty Trust, 7 Ch. D. 732 ; Johnstonev. Soval Courts Co., W. N. (1883), 5. 52. In any cause or matter pending before the Court of Appeal, any Power of a direction incidental thereto, not involving the decision of the appeal, ?">glo judge may be given by a single judge of the Court of Appeal ; and a single Appeal. judge of the Court of Appeal may at any time during vacation make any interim order to prevent prejudice to the claims of any parties pending an appeal as he may think fit ; but every such order made by a single judge may be discharged or varied by the Court of Appeal or a Divisional Court thereof. [Sect. 53, relating to Divisional Courts of the Court of Appeal, is repealed ; see Judicature Act, 1875, ss. 12, 33.] [Sect. 54, as to judges sitting on appeal from their own judgments, is repealed. See sect. 4 of the Act of 1875.] [Sect. 55, relating to arrangements for the business of the Court of Appeal, and for hearing appeals transferred from the Judicial Committee of the Privy Council, is repealed by Appellate Jurisdiction Act, 1876, s. 24.] PAET rv. Trial and Procedure. 56. Subject to any rules of Court and to such right as may now References exist to have particular cases submitted to the verdict of a jury, any ^^^ assessors question arising in any cause or matter (other than a criminal pro- ceeding by the Crown) before the High Court of Justice or before the Court of Appeal, may be referred by the Court or by any Divisional Court or judge before whom such cause or matter may be pending, for inquiry and report to any official or special referee, and the report of any such referee may be adopted wholly or partially by the Court, and may (if so adopted) be enforced as a judgment by the Court. The High Court or the Court of Appeal may also, in any such cause or matter as aforesaid in which it may think it expedient so to do. 268 JUDICATURE ACT, 1873. Po-wer to direct trials before referees. 36 & 37 Vict, call in the aid of one or more assessors specially quaHfied, and try and °' ' "• • hear suoli cause or matter -wliolly or partially with, the assistance of such assessors. The remuneration, if any, to be paid to such special referees or assessors shall he determined by the Court. 57. In any cause or matter (other than a criminal proceediag by the Crown) before the said High Court in which all parties interested who are under no disability consent thereto, and also without such consent in any such cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot, in the opinion of the Court or a judge, conveniently be made before a jury, or conducted by the Court through its other ordinary officers, the Court or a judge may at any time, on such terms as may be thought proper, order any question or issue of fact or any question of account arising therein to be tried 'either before an official referee, to be appointed as hereinafter provided, or before a special referee to be agreed on between the parties ; and any such special referee so agreed on shall have the same powers and duties and proceed in the same manner as an official referee. All such trials before referees shall be conducted in such manner as may be prescribed by rules of Court, and subject thereto in such manner as the Court or judge ordering the same shall direct (m). (») Under this section the Court had no power to order an action to be referred to an official rgjeree {Zongtnan v. Sast, 3 C. P. I). 142 ; Braginton v. Yates, W. N. (1880), 150) ; though all the issues in an action might be referred {Ward v. Filley, 5 Q. B. D. 427) ; see now Judicature Act, 1884, s. 9, infra. A large construction is given to the word "account," so as to include questions requiring scientifio investigation (Bowcliffex. Leigh, 3 Ch. D. 292; 24 W. E. 782). But questions involving charges of fraud ought not to be referred (Leigh v. Brooks, 5 Ch. D. 592) ; nor mixed questions of fact and account {Ward\. Hall, W. N. (1880), 69). For instances where a reference was directed, see Saxhy v. Gloucester Wagon Co., W. N. (1880), 28 (issues of fact in a patent action) ; Broder v. Saillard, 2 Ch. D. 694 (nuis- ance) ; Stafford v. Coxon, "W. N. (1877), 138 (damages in an action for specific performance) ; Soch v. Boor, "W. N. (1880), 93 (issues in an action to recover balance of salary). As to the meaning of "prolonged examination of documents," see Ormerod v. Todmorden Co., 8 Q. B. D. 664. An appeal Ues from an order under this section [ihid.) . An application to set aside the findings of a referee is made by motion on notice {Byhe v. Cannell, 11 Q. B. D. 180 ; Bedborough v. Army Co., 53 Ii. J. Ch. 658 ; 50 L. T. 173). As to proceedings befcre areferee, see Ord. XXXVI. Part VIII., infra. See also Judicature Act, 1884, sect. 11, infra. Beference to official referee. Power of referees and effect of their findings. Powers of Court with respect to proceedings before referees. 58. In aU cases of any reference to or trial by referees under this Act the referees shall be deemed to be officers of the Court, and shall have such authority for the purpose of such reference or trial as shall be prescribed by rules of Court or (subject to such rules) by the Court or judge ordering such reference or trial ; and the report of any referee upon any question of fact on any such trial shall (unless set aside by the Court) be equivalent to the verdict of a jury (v). (v) See note to s. 57 ; and see also Sullivan v. Sivington, 28 W. R. 372 ; Walker V. Bunkell, 22 Ch. D. 722. _. 69. "With respect to all such proceedings before referees and their reports, the Court or such judge as aforesaid shall have, in addition to any other powers, the same or the lite powers as are given to any Court whose jurisdiction is hereby transferred to the said High Court with respect to references to arbitration and proceedings before arbi- JUDICATUEE ACT, 1873. 269 trators and their awards respectively, by the Common Law Procedure Act, 1854 (m>). (tc) See Ord. XXXVI. j.. 10, and note thereto, infra. 60. Ajid whereas it is expedient to facilitate the prosecution in country districts of such proceedings as may he more speedily, cheaply, and conveniently carried on therein, it shall he lawful for her Majesty, by Order in Council, from time to time to direct that there shall be district registrars in such places as shall be in such order mentioned for districts to be thereby defined, from which writs of summons for the commencement of actions in the High Court of Justice may be issued, and in which such proceedings may be taken and re- corded as are hereinafter mentioned; and her Majesty may thereby appoint that any registrar of any County Court, or any regis- trar or prothonotary or district prothonotary of any local Court whose jurisdiction is hereby transferred to the said High Court of Justice, or from which an appeal ig hereby given to the said Court of Appeal, or any person who, having been a district registrar of the Court of Pro- bate, or of the Admiralty Court, shall under this Act become and be a district registrar of the said High Court of Justice, or who shall here- after be appointed such district registrar, shall and may be a district registrar of the said High Court for the purpose of issuing such writs as aforesaid, and having such proceedings taken before him as are hereinafter mentioned. This section shall come into operation imme- diately upon the passing of this Act (x). (x) This section is amended by sect. 13 of the Judicature Act, 1876, •which pro- vides that there may be joint registrars, and also that "every district registrar " shaE be deemed to be an ofiBoer of the Supreme Court, and be subject accordingly " to the jurisdiction of such Court, and of the divisions thereof." • An Order of her Majesty in CounoU, dated 12th August, 1875, after reciting this section appointed certain ofEcers to be district registrars in Liverpool, Man- chester, Preston, and Durham, and provided that the registrar of the County Court should be the district registrar in the following places : — 36 & 37 Vict. c. 66, B. 59. Her Majesty may establish district regis- tries in the country for the Supreme Court. Bangor. Barnsley. Barnstaple. Bedford. Birkenhead. Birmingham. , Boston. Bradford. Bridgewater. Brighton. Bristol. Bury St. Edmunds. Cambridge. Cardiff. Carlisle. Carmarthen. Cheltenham. Chester. Colchester. Derby. Dewsbury. Dover. Dorchester. East Stonehouse. Exeter. Gloucester. Great Grimsby. Great Yarmouth. Halifax. Hanley. Hartlepool. Hereford. Huddersfield. Ipswich. Kingston-on-Hull. Kings Lynn. Leeds. Leicester, Lincoln. Lowestoft. Maidstone. Newcastle-upon-Tyne. Newport, Monmouth. Newport, Isle of Wight. Newtown. Northampton. Norwich. Nottingham, Oxford. Pembroke Docks. Peterborough. Poole. Portsmouth. Kamsgate. Rochester. Sheffield. Shrewsbury. Southampton. Stockton-on-Tees. Sunderland. Swansea. Truro. Totnes. Wakefield. Walsall. Whitehaven. Wolverhampton. Worcester. York. Dudley. By an Order in Council, dated Aug. 11th, 1884, Abeiystwith, Carnarvon, and Winchester, were added to this list (W. N. (1884), Part II., p. 425). See also Judicature Act, 1881, s. 22. 270, JUDIOATUBE ACT, 1873. 36 & 37 Viot. 0. 66, s. 61. Seals of district registries. Powers of district registrars. 61. In every sucL. district registry suei. seal Bhall be used as the Lord Chancellor shall from time to time, either before or after the time fixed for tjie commencement of this Act, direct, -which seal shall be impressed on every writ and other document issued out of or filed in such district registry, and all such writs and documents, and aU exemplifications and copies thereof, purporting to be sealed with the seal of any such district registry, shall in all parts of the United Kingdom be received in evidence without further proof thereof. 62. All such district registrars shall have power to administer oaths and perform such other duties in respect of any proceedings pending in the said High Court of Justice or in the said Court of Appeal as may be assigned to them from time to time by rules of Court, or by any special order of the Court. [Sect. 63, as to fees in district registries, is repealed by the Act of 1875 ; and see sect. 26 of ttat Act.] Proceedings to be taken in district registries. Power for Court to remove pro- ceedings from district registries. 64. Subject to the Eules of Court in force for the time being, writs of summons for the commencement of actions in the High Court of Justice shall be issued by the district registrars when thereunto required ; and unless any order to the contrary shall be made by the High Court of Justice, or by any judge thereof, all such further pro- ceedings, including proceedings for the arrest or detention of a ship, her tacHe, apparel, furiyture, cargo, or freight, as may and ought to be taken by the respective parties to such action in the said High Court down to and including entry for trial, or (if the plaintiff is entitled to sign final judgment or to obtain an order for an account by reason of the non-appearance of the defendant) down to and including final judgment, or an order for an account, may be taken before the district registrar, and recorded in the district registry, in such manner as may be prescribed by Eules of Court ; and all such other pro- ceedings in any such action as may be prescribed by Eules of Court shall be taken and if necessary may be recorded in the same 'district registry. 65. Any party to an action in which a writ of summons shall have been issued from any such district registry shall be at liberty at any time to apply, in such manner as shall be prescribed by Eules of Court, to the said High Court, or to a judge in chambers of the "division of the said High Court to which the action may be assigned, to remove the proceedings from such district registry into the proper oflB.ce of the said High Court ; and the Court or judge may, if it be thought fit, grant such application, and in such case the proceedings and such original documents, if any, as may be filed therein shall upon receipt of such order be transmitted by the district registrar to the proper officer of the said High Court, and the said action shall thenceforth proceed in the said High Court in the same manner as if it had been originally commenced by a writ of summons issued out of the proper office in London ; or the Court or judge, if it be thought Jfight, may JUDICATURE ACT, 1873, 271 thereupon direct that the proceedings may continue to he taken in such 36 & 37 Viot. district registry. ' °- ^^' ^' ^^- 66. It shall be lawful for the Court, or any judge of the division to Accounts and which any cause or matter pending in the said High Court is assigned, t^'^^J^^e™*^ if it shall he thought fit, to order that any hooks or documents may be to district produced, or any accounts taken or inquiries made, in the office of or "^^S^^™^™- by any such district registrar, as aforesaid ; and in any such case the district registrar shall proceed to carry all such directions into effect in the manner prescribed ; and in any case in which any such accounts or inquiries shall have been directed to be taken or made by any district registrar, the report in writing of such district registrar as to the result of such accounts or inquiries may be acted upon by the Court, as to the Court shall seem fit (y). (y) The report of the registrar ought to he in the form of a chief clerk's certificate {Be Bomn, 20 Ch. D. 638). 67. The provisions contained in the fifth, seventh, eighth, and tenth L'^jf'o, tt- + sections of the County Courts Acts,* 1867, shall apply to all actions o. 142 ss. 5 ' commenced or pending in the said High Court of Justice in which any 7, 8 and 10, relief is sought which can be given in a County Court (z). actions in (2) These sections provide that in certain cases where small sums are in dispute ° the judge of a Superior Court may order a cause to be tried in a County Court, and Where small proceedings in equity which might have been commenced in a County Court may sums are in be transferred to sudi Court. dispute. Also, that if in any action commenced in a Superior Court the plaintiff shall recover a sum not exceeding 20/. if the action is founded in contract, or 10/. if founded in tort, he shall not be entitled to costs, unless the judge certifies that there was sufficient reason for proceeding in the Superior Court, or certifies for costs ; Srown v. Bye, 17 Eq. 343, where it was held that these sections did not prevent a mortgagee recovering his usual costs in equity, will probably no longer apply. For these sections and the cases decided on them, see Wilson, p. 68 et seq. And as to the effect of sect. 67, see Garnett v. Bradley, 3 App. Cas. 944 ; Chatfield v. Sedgwick, 4 C. P. D. 459 ; Stoolce v. Taylor, 5 Q. B. D. 569. Where an order has been made for a transfer the High Court retains jurisdiction till the transfer has been finally completed (David v. Sowe, 27 Ch. D. 533). Cons. Ord. IX. r. 1, provided that every suit, the subject-matter of which was Cons. Ord. under the value of 10/., should be dismissed, unless it were instituted to establish a IX. r. 1. general right, or unless there were some other special circumstance, which, in the Value of opinion of the Court, made it reasonable that such suit should be retained. See subject- Cox V. Foley, 1 Veru. 359, where a bill for establishing a right to ancient quit rents matter must of very small value was allowed to be filed ; and the small interest of a plaintiff be 10/. suing on behalf of himself and other shareholders was held no objection (Seaton v. -gjjj ^^ esta- Grant, 2 Ch. 469). Where the suit is for the benefit of a, charity it will be enter- ^^jj^j^ jj^„y^^g tained though for a smaller amount than 10/. {Parrot y. Pawlet, Cary's Eep. 103). ^ ." Where the sum recovered was only 9/., it was held that the suit was sustainable, utner special and the plaintiff was entitled to his costs, because the defendants had withheld circum- information, and the plaintiff was justified in supposing that he might have stances. recovered more {Beckitt v. Bilbrough, 8 Hare, 188). The objection might be taken advantage of by demurrer, or at the hearing {Brace v. Taylor, 2 Atk. 253). J Sects. 68 — 74, providing for rules as to procedure under the Act, saving the 3S as to evidence, were repealed by the Act of 1875, and sects. 16 — 21 of that Act are substituted.] [By sect. 76, councila of the judges are to be held to consider procedure and admi- nistration of justice.] 76. All Acts of Parliament relating to the several Courts and Acts of judges, whose jurisdiction is hereby transferred to the said High relattog to 272 JUDICATURE ACT, 1873, 36 & 37 Vict. Court of Justice and the said Court of Appeal respectively, or wherein ^' ' " ' any of such Courts or judges are mentioned or referred to, shall be f oimer Courts construed and take effect, so far as relates to anjrthing done or to be applying to done after the commencement of this Act, as if the said High Court of Courts under Justice or the said Court of Appeal, and the judges thereof, respec- tively, as the case may be, had been named therein instead of such Courts or judges whose jurisdiction is so transferred respectively; and in all cases not hereby expressly provided for in which, under any such Act, the concurrence or the advice or consent of the judge or any judges, or of any number of the judges, of any one or more of the Courts whose jurisdiction is hereby transferred to the High Court of Justice is made necessary to the exercise of any power or authority capable of being exercised after the commencement of this Act, such power or authority may be exercised by and with the concurrence, advice, or consent of the same or a like number of judges of the said High Court of Justice ; and all general and other commissions, issued under the Acts relating to the Central Criminal Court or otherwise, by virtue whereof any judges of any of the Courts whose jurisdiction is so transferreS. may, at the commencement of this Act, be empowered to try, hear, or determine any causes or matters, criminal or civil, shall remain and be in full force and effect, unless and until they shall respectively be in due course of law revoked or altered (o). (a) See Commissioners of Sewers v. Gellatly, 24 W. R. 1059 ; Fadleyy. Camphausen, 10 Ch. D. 550 ; Marris v. Ingram, 13 Ch. D. 338 ; Mx parte Mayor of Zondon, 25 Ch. D. 384. [Sect. 77 provides for the transfer of the existing staff of officers to the Supreme Court.] [Sect. 78, relating to officers of the Courts of Pleas at Lancaster and Durham, and sect. 79, relating to the personal officers of the judges, -were partly repealed by the Statute Law Kevision Act, 1883.] [Sect. 80, containing provisions as to officers paid out of fees, was repealed by the Statute Law Bevision Act, 1883.] [By sect. 81, doubts as to the status of officers shall be determined by rules of Court.] Powers of 82. Every person who at the commencement of this Act shall be r^adn^T™ authorized to administer oaths in any of the Courts whose jurisdiction oaths. is hereby transferred to the High Court of Justice shall be a commis- sioner to administer oaths in all causes and matters whatsoever which may from time to time be depending in the said High Court or in the Court of Appeal (i). (*) See Ord. XXXVIII. and note thereto, infra. Official 83. There shall be attached to the Supreme Court permanent appoSted°. ^ officers to be called official referees, for the trial of such questions as shall under the provisions of this Act be directed to be tried by such referees. The number and the qualifications of the persons to be so appointed from time to time, and the tenure of their offices, shall be determined by the Lord Chancellor, with the concurrence of JUDICATURE ACT, 1873. 273 the Presidents of the Divisions of the High Court of Justice, or a 36 & 37 Vict, majority of them (of which majority the Lord Chief Justice of °' ' ^' ' \ England shall be one), and with the sanction of the Treasury. Such official referees shall perform the duties entrusted to them in such places, whether in London or in the country, as may from time to time be directed or authorized by any order of the said High Court, or of the Court of Appeal ; and all proper and reasonable travelling expenses incurred by them in the discharge of their duties shall be paid by the Treasury out of moneys to be provided by Parliament. 84. Subject to the provisions in this Act contained with respect to Duties, ap- exieting officers of the Courts whose jurisdiction is hereby transferred and'remoTal to the Supreme Court, there shall be attached to the Supreme Court of officers of such officers as the Lord Chancellor with the concurrence of the Presi- Co^rt"^^ dents of the Divisions of the High Court of Justice, or the major part of them, of which majority the Lord Chief Justice of England shall be one, and with the sancfion of the Treasury, may from time to time determine. Such of the said several officers respectively as may be thought necessary or proper for the performance of any special duties, with respect either to the Supreme Court generally, or with respect to the High Court of Justice or the Court of Appeal, or with respect to any one of the divisions of the said High Court, or with respect to any particular judge or judges of either of the said Courts, may by the same authority, and with the like sanction as aforesaid, be attached to the said respective Courts, divisions, and judges accordingly. All officers assigned to perform duties with respect to the Supreme Court generally, or attached to the High Court of Justice or the Court of Appeal, and all commissioners to take oaths or affidavits in the Supreme Court, shall be appointed by the Lord Chancellor. AH officers attached to the Chancery Division of the said High Court, who have been heretofore appointed by the Master of the Polls, shaU continue, while so attached, to be appointed by the Master of the Polls. All other officers attached to any division of the said High Court shaU be appointed by the President of that division. All officers attached to any judge shall be appointed by the judge to whom they are attached. Any officer of the Supreme Court (other than such officers attached to the person of a judge as are hereinbefore declared to be remov- able by him at his pleasure), may be removed by the person having the right of appointment to the office held by him, with the approval of the Lord Chancellor, for reasons to be assigned in the order of removal. The authority of the Supreme Court over all or any of its officers may be exercised in and by the said High Court and the said Court of Appeal respectively, and also in the case of officers attached to any St. T 274 JUDIOATTJBE ACT, 1873. & 37 Vict, division of the High Court by the President of such division, with 6, B. 84. Solicitors and attorneys. respect to any duties to be discharged by them respectively. [Sect. 85, relating to salaries and pensions of officers, is repealed by Judicature (Officers) Act, 1879, s. 29.] [Sect. 86 relates to rights of patronage and other powers of Courts or judges not otherwise provided for.] 87. From and after the commencement of this Act all persons admitted as solicitors, attorneys, or proctors of or by law empowered to practise in any Court, the jurisdiction of which is hereby trans- ferred to the High Court of Justice or the Court of Appeal, shall be called solicitors of the Supreme Court, and shall be entitled to the same privileges and be subject to the same obligations, so far as circumstances will permit, as if this Act had not passed ; and all persons who from time to time, if this Act had not passed, would have been entitled to be admitted as solicitors, attorneys, or proctors of or been by law empowered to practise in any such Courts, shall be entitled to be admitted and to be called solicitors of the Supreme Coiirt, and shall be admitted by the Master of the EoUs, and shall, as far as circumstances will permit, be entitled as such solicitors to the same privileges and be subject to the same obligations as if this Act had not passed. Any solicitors, attorneys, or proctors to whom this section applies shall be deemed to be officers of the Supreme Court ; and that Court, and the High Court of Justice, and the Court of Appeal respectively, or any division or judge thereof, may exercise the same jurisdiction in respect of such soKcitors or attorneys as any one of her Majesty's superior Courts of law or equity might previously to the passing of this Act have exercised in respect of any solicitor or attorney admitted to practise therein (c). (c) See sect. 14 of the Act of 1875, and Judicature Act, 1881, s. 24. See also Se Copp, 32 "W. R. 25. As to the duties of solicitors of the Court of Chancery, see Cons. Ord. III. r. 1 ; and see also rule 11 of the same Order, providing ijhat an agreement by a solicitor as to his client's cause shall not be binding unless in writing, and signed by the party to be bound or his solicitor (Clarke v. Lord Rivers, 5Eq.91). PART VI. Jurisdiction of Inferior Courts. 88. It shall be lawful for her Majesty from time to time by Order in Council to confer on any inferior Court of civil jurisdiction, the same jurisdiction in equity and in admiralty, respectively, as any County Court now has, or may hereafter have, and such jurisdiction, if and when conferred, shall be exercised in the manner by this Act directed (d). (iQ See Statute Law Revision and Civil Procedure Act, 1883, s. 8. Powers of 89. Every inferior Court which now has or which may after the Courts having passing of this Act have jurisdiction in equity, or at law and in equity, equity and and in admiralty respectively, shall as regards all causes of action Power by Order in CouncU to confer juris- diction on inferior Courts. JUDICATURE ACT, 1873. 275 within its jurisdiction for the time being, have power to grant, and 36 & 37 Viol. shall grant in any proceeding before such Court, such relief, distress,* °- ^^' °- ^^- or remedy, or combination of remedies, either absolute or conditional, ?dmiralty and shaU in every such proceeding give such and the like effect to l'^'^'^'°*^°"" every ground of defence or counterclaim, equitable or legal (subject to dress!" ^'^' the provision next hereinafter contained), in as full and ample a manner as might and ought to be done in the like ease by the High Court of Justice (e). (e) A County Court can under this section grant an injunction against a nuisance, o? w"^™^ obedience to it by committal {Jfartin v. Bannister, 4 Q. B. D. 212, 491 ; 28 W. E. 143 ; and see Richards y. Cullerne, 7 Q. B. D. 623). 90. Where in any proceeding before any such inferior Court any Counter- defence or counterclaim of the defendant involves matter beyond the inferior" jurisdiction of the Court, such defence or counterclaim shall not affect Courts and the competence or the duty of the Court to dispose of the whole matter therefroL. in controversy so far as relates to the demand of the plaintiff and the defence thereto, but no relief exceeding that which the Court has jurisdiction to administer shall be given to the defendant upon any such counterclaim : Provided always, that in such case it shall be lawful for the High Court or any division or judge thereof, if it shall be thought fit, on the application of any party to the proceeding, to order that the whole proceeding be transferred from such inferior Court to the High Court, or to any division thereof ; and in such case the record ia such proceediag shall be transmitted by the registrar, or other proper officer, of the inferior Court to the said High Court ; and the same shall thenceforth be continued and prosecuted in the said High Coxirt as if it had been originally commenced therein (_/). (/) See as to this section, Davis v. Flagstaff Co., 3 C. P. D. 228 ; Anon., W. N. (1876), 12 ; Da/Dies v. Williams, 13 Ch. D. 550. Where a plaintifl commenced a suit in the County Court, which at the hearing was transferred to the High Court because the subject-matter was over 500Z., the plaintiff, though successful, paid the coats of the hearing before the County Court {Ward v. Wyld, 5 Ch. D. 779). See now as to the jurisdiction of inferior Courts in cases of counterclaim. Judicature Act, 1884, s. 18, infra. 91. The several rules of law enacted and declared by this Act shall Rules of law be in force and receive effect in all Courts whatsoever in England, so j^^^J far as the matters to which such rules relate shall be respectively Courts, cognizable by such Courts {ff). (ff) See King v. Sawheaworth, 4 Q. B. D. 371. PAET vn. Miscellaneous Provisions. [Sect. 92 provides for the transfer of books and papers to the Supreme Court.] [Sect. 93 relates to savings as to circuits.] 94. This Act, except so far as herein is expressly directed, shall not Saving as to affect the office or position of Lord Chancellor ; and the officers of the ^°{i^J'^^'^' T 2 276 JUDICATUBE ACT, 1873. 36 & 37 Vict. Lord Chancellor shall continue attached to him in the same manner as '^' ' if this Act had not passed ; and aU duties, which any officer of the Court of Chancery may now he required to perform in aid of any duty whatsoever of the Lord Chancellor, may in like manner be required to be performed by such officer when transferred to the Supreme Coiu't, and by his successors. Saving as to 95. This Act, except so far as is herein expressly directed, shall not Lancaster. affect the offices, position, or functions of the Chancellor of the County Palatine of Lancaster. [Sect. 96, saving as to th6 Chancellor of the Exchequer and sheriffs, is partly repealed by the Statute Law Kevision Act, 1883 ; see Judicature Act, 1881, s. 16.] [Sects. 97 — 99 contain saving as to Lord Treasurer and office of Keeeipt of Exchequer, and provisions as to the Grreat Seal being in commission, and as to conunissions in Counties Palatine.] Interpretation 100. In the construction of this Act, unless there is anything in the erms. subject or context repugnant thereto, the several words hereinafter mentioned shall have, or include, the meanings following ; (that is to say,) " Lord Chancellor " shall include Lord Keeper of the Great Seal. " The High Court of Chancery" shall include the Lord Chancellor. " The Court of Appeal in Chancery " shall include the Lord Chan- cellor as a judge on rehearing or appeal. "London Court of Bankruptcy" shall include the Chief Judge in hankruptcy (A). "The Treasury" shall mean the commissioners of her Majesty's Treasury for the time being, or any two of them. " Exdes of Court" shall include forms. " Cause " shall include any action, suit, or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the Crown. " Suit " shall include action. " Action " shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of Court ; and shall not include a criminal proceeding by the Crown. " Plaintiff " shall include every person asking any relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether the same be taken by action, suit, petition, motion, summons, or otherwise. " Petitioner" shall include every person making any appUeation to the Court, either by petition, motion, or summons, otherwise than as against any defendant. "Defendant" shall include every person served with any writ of summons or process, or served with notice of, or entitled to attend any proceedings. " Party " shall include every person served with notice of, or attend- ing any proceeding, although not named on the record. JUDICATURE ACT, 1873. 277 " Matter " shall include everv TOOoeedina: in the Court not in a 36 & 37 Viot. cause. ' " Pleading " shall include any petition or summons, and also shall include the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant (i). " Judgment " shaU include decree. " Order " shall include rule. " Oath " shall include solemn affirmation and statutory declaration. " Crown cases reserved " shall mean such questions of law reserved in criminal trials as are mentioned in the Act of the eleventh and twelfth years of her Majesty's reign, chapter seventy-eight. " Pension " shall include retirement and superannuation allowance. " Existing " shall mean existing at the time appointed for the com- mencement of this Act. (A) This paragraph is repealed by Statute Law Revision Act, 1883. Court of (i) See Se BouUon, 30 W. R. 596. Bankruptcy. JUDIOATUEB ACT, 1875. 38 & 39 Viot. ' u. 77. 38 & 39 VICT. Cap. 77. An Act to amend and extend the Supreme Court of Judicature Act, 1873. [llth August, 1875.] Whebeas it is expedient to amend and extend the Supreme Court of Judicature Act, 1873 : Be it therefore enacted, &c., as follows : — 1. This Act shall, so far as is consistent with the tenor thereof, be Short title, construed as one with the Supreme Court of Judicature Act, 1873 (in 6^,10^0^^411 this Act referred to as the principal Act), and together with the prin- 36 & 37 Viot. cipal Act may he cited as the Supreme Court of Judicature Acts, 1873 "• ^^• and 1875, and this Act may be cited separately as the Supreme Court of Judicature Act, 1875. 2. This Act, except any provision thereof which is declared to take Oommenoe- effect.before the commencement of this Act, shall commence and come ^^^^ °^ ^°^- into operation on the first day of November, 1875 (o). (a) The remainder of this section was repealed by the Appellate Jurisdiction Act, 1876, s. 24. 3. Sect. 3 repeals part of sect. 5 of the Act of 1878, as to the number of judges, and continues : The Lord Chancellor shall not be deemed to be a permaneht judge of that Court, and the provisions of the said section relating to 278 JUDICATX7EE ACT, 1875. & 39 Viot. tie appointment and style of the judges of the said High Court shall ' " ' not apply to the Lord Chancellor (J). {b) The Statate Law Revision Act, 1883, repeals the whole eeotion, except the paragraph in the text, and repeals also the words "and style" in that paragraph. Constitution of Court of Appeal. 4. Her Majesty's Court of Appeal, in this Act and in the principal Act referred to as the Court of Appeal, shaU be constituted as follows : There shall be five ex-offlcio judges thereof, and also so many ordinary judges, not exceeding three at anyone time (c) as her Majesty shaU from time to time appoint. The ex-officio judges shall be the Lord Chancellor, the Lord Chief Justice of England, the Master of the EoUs, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer {d). The first ordinary judges of the said Court shall be the present Lords Justices of Appeal in Chancery, and such one other person as her Majesty may be pleased to appoint by letters patent. Such appointment may be made either before or after the commencement of this Act, but if made before shall take effect at the commencement of the Act. The ordinary Judges of the Court of Appeal shall be styled Justices of Appeal (d). The Lord Chancellor may by writing addressed to the President of any one or more of the following divisions of the High Court of Justice, that is to say, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division (d), and the Probate, Divorce, and Admiralty Division, request the attendance at any time, except during the times of the spring or summer circuits, of an additional judge from such division or divisions (not being ex-o£B.cio judge or judges of the Court of Appeal) at the sittings of the Court of Appeal, and a judge, to be selected by the division from which his attendance is requested, shall attend accordingly. Every additional judge, during the time that he attends the sittings of her Majesty's Court of Appeal, shall have all the jurisdiction and powers of a judge of the said Court of Appeal, but he shall not other- wise be deemed to be a judge of the said Court, or to have ceased to be a judge of the division of the High Court of Justice to which he belongs. Section fifty four of the principal Act is hereby repealed, and instead thereof the following enactment shall take effect {d) : No judge of the said Court of Appeal shall sit as a judge on the hearing of an appeal from any judgment or order made by himself, or made by any Divisional Court of the High Court of which he was and is a mem- ber (e). "Whenever the office of an ordinary judge of the Court of Appeal becomes vacant a new judge may be appointed thereto by her Majesty by letters patent. (c) These words in italics are repealed by sect. 15 of the Appellate Jurisdiotiou Act, 1876. JUDICATURE ACT, 1875. 279 (d) These words in italics are repealed by the Statute Law Eevision Act, 1883. 38 & 39 Viot. The style of the ordinary judges of the Court of Appeal is "Lords Justices of c. 77, s. 4. Appeal " (Judicature Act, 1877, s. 4). See also as to the Court of Appeal, Judioa- : tnre Act, 1881, «. 11, and the Appellate Jurisdiction Act, 1876. Style of (e) See Fisher v. Val Travers Asphalte Co., 1 0. P. D. 259. judges. [Sect. 5 provides for the tenure of office of judges, and oaths of office, and that the judges are not to sit in the House of Commons ; and sect. 6 provides for the precedence of the judges.] 7. Any jurisdiction usually vested in the Lords Justices of Appeal Jurisdiction in Chancery, or either of them, in relation to the persons and estates j^^^Ji^^^in of idiots, lunatics, and persons of unsound mitid, shall he exercised respect of by such judge or judges of the High Court of Justice or Court of l^™a*ics. Appeal as may he intrusted by the sign manual of her Majesty or her successors with the care and commitment of the custody of such per- sons and estates ; and all enactments referring to the Lords Justices as so intrusted shall be construed as if such judge or judges so intrusted had been named therein, instead of such Lords Justices : Provided that each of the persons who may at the conunencement of the principal Act be Lords Justices of Appeal in Chancery shall, during such time as he continues to be a judge of the Court of Appeal, and is intrusted as aforesaid, retain the jurisdiction vested in him in relation to such persons and estates as aforesaid (/). (/) See Judicature Act, 1873, s. 17, ante, p. 252. [Sect. 8 relates to the judge and registrar of the Court of Admiralty ; it is partly repealed by the Statute Law. Eevision Act, 1883.] [Sect. 9, relating to the London Bankruptcy Court, is repealed by sect. 169 of the Bankruptcy Act, 1883.] 10. Whereas, by section twenty-five of the principal Act, after reciting Amendment that it is expedient to amend and declare the law to be thereafter yj^,). ^ gg administered in England as to the matters next thereinafter mentioned, s. 25, as to certain enactments are made with respect to the law, and it is expedient ^^^^^ certain to amend the said section : Be it therefore enacted as follows : — points. Sub-section one of clause twenty-five of the principal Act is hereby repealed, and instead thereof the following enactment shall take effect; (that is to say,) in the administration by the Court of the assets of any person who may die after the commencement of this Act, and whose estate may prove to be insufficient for the payment in full of his debts and liabUities, and in the winding-up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the cost of winding-up, the same rules shall prevail and be observed as to the respective rights of secured and unse- cured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt ; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such 280 JUDICATURE ACT, 1875. 38 & 39 Viot. ..■. 77, s. 10. Bights of secured creditor in administra- tion and winding-up. • " Secured creditor." BanbtTiptey Act 1869. Administra- tion. deceased person, or out of the assets of any such company, may come in under the decree or order for the administration of such estate, or under the winding-up of such company, and make such claims against the same as they may respectively he entitled to hy virtue of this Act. In sTih-section seven of the said section the reference to the date of the passing of the principal Act shall he deemed to refer to the date of the commencement of the principal Act (jr). (y) Before this Act a creditor who had not realized his security could prove against the assets of his deceased debtor for the whole . deht, and receive a dividend. He could then realize his security, and if he received in the whole more than 20a. in the pound, he paid over the excess {Mason v. Bogg, 2 My. & Cr. 443). The same rule prevailed in the winding-upof acompany (Kelloek's Case, 3 Ch. 769). In bankruptcy the rule was different. The creditor could only prove for the balance of his debt after deducting the value of his security. The principal object of this section is to make this rule in bankruptcy applicable to administration of the assets of deceased persons, and to winding-up [Re Withernsea Srich Works, 16 Ch. D. 337) ; it is not intended to enlarge the assets of an insolvent estate, but only to vary the lights of the persons entitled to them [Me JD'Epineuil, 20 -Ch. D. 217).; and see also Zee v. Nuttall, 12 Oh. D. 61. And it affects only the rights of the class of secured creditors as against those of the class of unsecured creditors ; it does not afitect the rights inter se of the members of those classes [Se Maggi, Wineliouse v. WineJwuse, 20 Ch. D. 545 ; Smith v. Morgan, 5 C. P. D. 337). See also as to the object of the section, Mersey Steel Co. v.i%for, 9 Q. B. D. 648 ; Se Sopkins, 18 Ch. D. 370 ; Se Albion Steel Co., 7 Ch. D. 547. As to the meaning of " secured creditor," see Se Stanhope Collieries Co., H Ch. D. 160 ; Hx parte Joselyne, 8 Ch. D. 327 ; Ex parte Nelson, 14 Ch. D. 41. An executor's right of retainer does not make him a secured creditor, nor is such right affected by the section [Zee v. Nuttall). The section is not retrospective (Se Suehe ^ Co., I Ch. D. 48 ; Se Fhcenix Steel Co., 24 W. E. 19 ; "W. N. (1875), 187; Sherwin v. Selkirk, 12 Ch. D. 68). The provisions of sect. 6 of the Bankruptcy Act, 1869, were held not -to be imported into winding-up proceedings by this section {Moor v. Anglo-Italian Bank, 10 Ch. D. 681) ; nor those of sect. 87 as to the sheriff holding for fourteen days the proceeds of goods taken in execution {Se Withernsea Brick Works, 16 Ch. D. 337, approving Se Sichards, 11 Ch. D. 676, and overruling iJ« Frintimg Co., 8 Ch. D. S35) ; nor those of sect. 34 as to the landlord's right of distress for one year's rent {Thomas v. Patent Zionite Co., 17 Ch. D. 250) ; nor the rules as to reputed ownership {Se Crumlin Co., 11 Ch. D. 765) ; and see also Se Westbourne Grove Co., 5 Ch. D. 248. As to sect. 32 (priority of wages) see Se Association of Zand Financiers, 16 Ch. D. 373, and cases there cited, (see now Companies Act, 1883) ; Se Albion Steel Cn., 7 Ch. D. 547. But the section enables a claim to be made in respect of a contingent liability which ripens into an actual debt during the winding-up {Se Northern Insurance Co., 17 Ch. D. 337; Se Bridges, ibid. 342). The mutual credit rules do not apply to the case of calls on shareholders {Gill's Case, 12 Ch. D. 755 ; Se Whitehouse, 9 Ch. D. 595; Ex parte BranwMte, 48 L. J. Ch. 463) ; and see Green v. Smith, 22 Oh. D. 586. The section has not altered the rule entitling a creditor, who is also a shareholder, to receive a dividend on his debt if he has paid all calls made on him {Se West of England Bank, 1 2 Ch. D. 823). A company in liquidation must be deemed to be insolvent until the contrary is shown {Se Milan Co., 25 Ch. D. p. 591). The provisions of the Bankruptcy Act, 1883, which take away the priority of the Crown in the distribution of assets in bankruptcy, have not been incorporated into the Companies Act, 1862, so as to bar the prerogative right of the Crown to issue process and obtain payment in fuU against a company in liquidation (Se Oriental Bank (2), W. N. (;i884), 204). In administration, the riiles as to valuation when a secured creditor seeks to prove for a balance now apply {Se Sopkins, 18 Ch. D. 370) ; but it was held that the section did not apply the rules in bankruptcy so as to make an unregistered bill of sale void as against the unsecured creditors of an insolvent estate {Se S'Epineuil, 20 Ch. D. 217 ; Se Knott, 7 Ch. D. 549, ,n. ; seenow45 &46 Viot. o. 43). A creditor of an insolvent estate whose debt bears interest is not entitled to interest up to the day of payment, but only to the date of the judgment for adminis- tration, which by this section is equivalent to an adjudication in bankruptcy {Se Simmers, 13 Ch. D. 136). The section does not make all debts payable pari passu ; and if a creditor recovers JtrDIOATUEE ACT, 1875. 281 judgment against the executor before a judgment for administration he is still 38 & 39 Viot. entitled to priority over other creditors of equal degree (He Maggi, Winehouse v. u. 77, s. 10. Winehouse, 20 Ch. D. 645). In Grem v. Smith, 22 Ch. D. 586, it was held that the mutual credit clause (s. 39) of the Bankruptcy Act, 1869, would not be applied in administration until it was shown that the estate was insolvent, but the Court might direct that a debt claimed on behalf of the estate from a creditor should be paid into Court to a separate account, with liberty to the creditor to apply in case the estate should prove to he insolvent. As to the form of the judgment in a creditor's administration action when it is anticipated that the estate may prove insolvent, see Re Sildich, 29 W. E. 733 ; contra. Me Murray, 30 W. R. 283. By section 125 of the Bankruptcy Act, 1883, any creditor of a deceased debtor, Admiuis- whose debt would have been sufficient to support a bankruptcy petition against the tration in debtor if he had been alive, may present a petition praying for an order for the bankruptcy administration of the estate of the deceased debtor according to the law of bank- under Bank- ruptcy. The order may be made unless the Court is satisfied that there is a rea- ruptoy Act, sonable probability that the estate wUl be sufficient for the payment of debts. But 1883. no order can be made for one month after the grant of probate or administration, except with the concurrence of the personal representative, or unless the petitioner proves that the debtor committed an act of bankruptcy within three months before his death ; and no petition can be presented after proceedings have been com- menced for administration of the estate in any Court of justice. The latter Court, however, may on proof that the estate is insufficient for payment of debts, transfer the proceedings to the Bankruptcy Court, which may thereupon make an order for administration in bankruptcy. The estate will then vest in the official receiver, and he will deal with it in accordance with the provisions of the Bankruptcy Act ; but the funeral and testamentary expenses will be paid in priority to other claims. See Ex parte May, 13 Q. B. D. 552. 11. Subject to any rules of Court and to the provisions of the prin- Proviaon as cipal Act and this Act and to the power of transfer, every person by anv^l^tS whom any cause or matter may be commenced in the said High Court (subject to of Justice shall assign (A) such cause or matter to one of the divisions ^gogg ^ of the said High Court as he may think fit, by marking the document what division by which the same is commenced with the name of such division, and ■ ^ J^hatu^'."" giving notice thereof to the proper officer of the Court : Provided tion for 36 & that— 37 Vict. c. 66, s. 35. (1.) All interlocutory and other steps and proceedings in or before the said High Court in any cause or matter subsequent to the' commencement thereof, shall be taken (subject to any rules of Court and to the power of transfer) in the division of the said High Court to which such cause or matter is for the time being attached ; and, (2.) If any plaintiff or petitioner shall at any time assign his cause or matter to any division of the said High Court to which, according to the rules of Court or the provisions of the prin- cipal Act or this Act, the same ought not to be assigned, the Court, or any judge of such division, upon being informed thereof, may, on a summary application at any stage of the cause or matter, direct the same to be transferred to the division of the said Court to which, according to such rules or provisions, the same ought to have been assigned, or he may, if he think it expedient so to do, retain the same in the division in which the same was commenced ; and all steps and proceedings whatsoever taken by the plaintiff or peti- tioner or by any other party in any such cause or matter, and 282 JUDICATUKE ACT, 1875. 38 & 39 Vict. 0. 77, B. 11. Sittings of Court of Appeal. all orders made therein by the Court or any judge thereof before any such transfer shall be valid and effectual to aU intents and purposes in the same manner as if the same respectively had been taken and made in the proper division of the said Court to ■which such cause or matter ought to have been assigned ; and, [Sub-sect. 3 relates to the Probate Division only.] (/i) As to choice of division, see Ord. V., rr. 5 — 9, infra. 12. Every appeal to the Court of Appeal shaU, where the subject- matter of the appeal is a final order, decree, or judgment, be heard before not less than three judges of the said Court sitting together, and shall when the subject-matter of the appeal is an interlocutory order, decree, or judgment, be heard before not less than two judges of the said Court sitting together. Any doubt which may arise as to what decrees, orders, or judgments are final, and what are interlocutory, shall be determined by the Court of Appeal (j). Subject to the provisions contained in this section the Court of Appeal may sit in two divisions at the same time. [i] As to final and interlocutory decrees, &o., see Ord. LVIII. rr. 3, 15, infra. [Sect. 13 amends sect. 60 of the Act of 1873, as to the appointment of district registrars; see note («), ante, p. 269.] 14. Whereas under section eighty-seven of the principal Act, solici- tors and attorneys will after the commencement of that Act be called solicitors of the Supreme Court : Be it therefore enacted that — The registrar of attorneys and solicitors in England shall be called the registrar of solicitors, and the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Court of Common Pleas, and the Lord Chief Baron, or any two of them, may, from time to time, hy regulation adapt any enactments relating to attorneys, and any declaration, certificate, or form required under those enactments, to the solicitors of the Supreme Court under section eighty-seven of the principal Act (k). [k) The words in italics are repealed hy the Statute Law Revision Act, 1883. 15. It shall be lawful for her Majesty from time to time, by Order in Council, to direct that the enactments relating to appeals from County Courts shall apply to any other inferior Court of Eecord ; and those enactments, subject to any exceptions, conditions and limitations con- tained in the order, shall apply accordingly, as from the date mentioned in the order. [Sect. 16, as to rules of Court, is repealed hy the Statute Law Eevision Act, 1883.] Provision as 17. Her Majesty may at any time after the passing and before the &c™f ruks of commencement of this Act, by Order in Council, made upon the recom- Amendment of 36 & 37 Vict. c. 66, B. 87, as to enactments relating to attorneys. Appeal from inferior Court of Eecord. JtTDICATURE ACT, 1875. 283 mendatlon of the Lord Chancellor, and the Lord Chief Justice of Eng- 38 & 39 Viot. land, the Master of the Eolls, the Lord Chief Justice of the Common . °' ' °" ^ ' Pleas, the Lord Chief Baron of the Exchequer, and the Lords Justices Court before of Appeal in Chancery, or any five of them, and the other judges of commenoe- the several Courts intended to be united and consolidated by the prin- ment of the cipal Act as amended by this Act, or of a majority of such other judges, gtitiition for " make any further or additional rules of Court for carrying the principal 36 & 37 Viot. Act and this Act into effect, and in particular for all or any of the fol- gg^H^and' lowing matters, so far as they are not provided for by the rules in the Soh. first schedule to this Act ; that is to say, (1.) Eor regulating the sittings of the High Court of Justice and the Court of Appeal, and of any divisional or other Courts thereof respectively, and of the judges of the said High Court sitting in chambers ; and, (2.) For regulating the pleading, practice andprocedm-e in the High Court of Justice and Court of Appeal ; and, (3.) Generally, for regulating any matters relating to the practice and procedure of the said Courts respectively, or to the duties of the officers thereof, or of the Supreme Court, or to the costs of proceedings therein. From and after the commencement of this Act, the Supreme Court la substitu- may at any time, with the concurrence of a majority of the judges ^?ym, c 66 thereof present at any meeting for that purpose held (of which s. 74. majority the Lord Chancellor shall be one), alter and annul any rules of Court for the time being in force, and have and exercise the same power of making rules of Court as is by this section vested in her Majesty in Council on the recommendation of the said judges before the commencement of this Act. All rules of Court made in pursuance of this section shall be laid before each House of Parliament within such time and shall be subject to be annulled in such manner as is in this Act provided. All rules of Court made in piu-suance of this section, if made before the commencement of this Act, shall from and after the com- mencement of this Act, and if made after the commencement of this Act shall from and after they come into operation, regulate all matters to which they extend, until annulled or altered in pursuance of this section. The reference to certain judges in section twenty-seven of the principal Act shall be deemed to refer to the judges mentioned in this section as the judges on whose recommendation an Order in Council may be made (J). U) The words in italics are repealed by the Statute Law Eevision Act, 1883. As to the power to make rules, see Appellate Jurisdiotion Act, 1876, s. 17; Judicature (Officers) Act, 1879, s. 22 ; Judicature Act, 1881, s. 19 ; Judicature Act, 1884, s. 23. 18. All rules and orders of Court in force at the time of the Provision as commencement of this Act in the Court of Probate, the Court for Pr^te°^ 284 JUDICATURE ACT, 1875. 38 & 39 Vict, c. 77, o. 18. DiToroe and Admiralty Court, being rules of the High Court, — in substi- tution for 36 & 37 Vict, c. 66, s. 70. Provision as to Act not affecting rules of evidence or juries, — ^in substitution for 36 & 37 Vict. 0. 66, s. 72. Provision for saving of existing pro- cedure of Courts when not incon- sistent with this Act or rules of Court, — in substitution for 36 & 37 Vict. c. 66, B. 73. Nothing in principal Act to prejudice right to have issues sub- mitted, &c. Divorce and Matrimonial Causes, and the Admiralty Court, or in relation to appeals from the Chief Judge in Bankruptcy, or from the Court of Appeal in Chancery in bankruptcy matters, except so far as they are expressly varied by the first schedule hereto or hy rules of Court made hy Order in Council before the commencement of this Act, shall remain and be in force in the High Court of Justice and in the Court of Appeal respectively untU. they shall respectively be altered or annulled by any rules of Court made after the commencement of this Act (m). [The rest of the section relates only to the Probate and Divorce Court.] {m) The words in italics are repealed by Statute Law Revision Act, 1883. [Sect. 19, relating to criminal procedure, was repealed in part by Statute Law Revision Act, 1883.] 20. Nothing in this Act or in the first schedule hereto, or in any rules of Court to be made under this Act, save as far as relates to the power of the Court for special reasons to allow depositions or affidavits to be read, shall affect the mode' of giving evidence by the oral examination of witnesses in trials by jury, or the rules of evidence, or the law relating to jurymen or juries («). («) The words in italics are repealed by Statute Law Revision Act, 1883. 21. Save as by the principal Act or this Act, or by any rules of Court, may be otherwise provided, all forms and methods of procedure which at the commencement of this Act were in force in any of the Courts whose jurisdiction is by the principal Act or this Act transferred to the said High Court and to the said Court of Appeal respectively, under or by virtue of any law, custom, general order, or rules what- soever, and which are not inconsistent with the principal Act or this Act or with any rules of Court, may continue to be used and practised, in the said High Court of Justice and the said Court of Appeal respec- tively, in such and the like cases, and for such and the like purposes, as those to which they would have been applicable in the respective Courts of which the jurisdiction is so transferred, if the principal Act and this Act had not passed. 22. "Wiereas by section forty-six of the principal Act it is enacted that " any judge of the said High Court sitting in the exercise of its jurisdiction elsewhere than in a Divisional Court may reserve any case, or any point in a case, for the consideration of a Divisional Court, or may direct any case or point in a case to be argued before a Divisional Court :" Be it hereby enacted, that nothing in the said Act, nor in any rule or order made under the powers thereof or of this Act, shaE take away or prejudice the right of any party to any action to have the issues for trial by jury submitted and left by the judge to the jury before whom the same shall come for trial, with a proper and complete direction to the jury upon the law, and as to the evidence applicable to such issues : JUDICATUEE ACT, 1875; 285 Provided also, that the said right may he enforced either by motion 38 & 39 Vict, in the High Court of Justice or hy motion in the Court of Appeal, "• ^^' "• ^^' founded upon an exception entered upon or annexed to the record. [Sect. 23 relates to alterations in the regulation of the oirouits.] 24. Where any provisions in respect of the practice or procedure of Additional any Courts the jurisdiction of which is transferred by the principal re°^Itl!ou°of Act or this Act to the High Court of Justice or the Court of Appeal, practice and are contained in any Act of Parliament, rules of Court may be made ruleTof'court for modifying such provisions to any extent that may be deemed necessary for adapting the same to the High Court of Justice and the Court of Appeal, without prejudice nevertheless to any power of the Lord Chancellor, with the concurrence of the Treasury, to make any rules with respect to the Paymaster-General, or otherwise. Any provisions relating to the payment, transfer, or deposit into, or in, or out of any Court of any money or property, or to the dealing therewith, shall, for the purposes of this section, be deemed to be provisions relating to practice and procedure. The Lord Chancellor, with the concurrence of the Treasury, may from time to time, by order, determine to what accounts and how intituled any such money or property as last aforesaid, whether paid, transferred, or deposited before or after the commencement of this Act, is to be carried, and modify all or any forms relating to such accoimts ; and the Governor and Company of the Bank of England, and all other companies, bodies corporate, and persons, shall make such entries and alterations in their books as may be directed by the Lord Chancellor, with the concurrence of the Treasury, for the purpose of carrying into effect any such order (o). (o) See Gloucestershire SanMng Co. v. FMllipps, 12 Q. B. D. 533. 25. Every Order in Council and rule of Court required by this Act to Orders and be laid before each House of Parliament shall be so laid within forty j^|\efore days next after it is made, if Parliament is then sitting, or if not, Parliament, within forty days after the commencement of the then next ensuing ^^°- ^?'X ^® session; and if an address is presented to her Majesty by either House address from of Parliament, within the next subsequent forty days on which the either House, said House shaU have sat, praying that any such rule or order may be annulled, her Majesty may thereupon by Order in Council annul the same ; and the rule or order so annulled shall thenceforth become void and of no effect, but without prejudice to the validity of any proceedings which may in the meantime have been taken under the same. This section shaU come into operation immediately on the passing of this Act. [Sect. 26 relates to the fixing and oolleotiou of fees in the High Court and Court of Appeal ; it was partly repealed by the Statute Law Revision Act, 1883. As to Court fees, see infra.'\ [Sect. 27, relating to the Courts at Lancaster and Durham, was repealed hy the Statute Law Revision Act, 1883.] 286 JUMCATUKE ACT, 1875. 38 & 39 Viot. [By sects. 28 and 29 the Treasury is to account for fees and expenditure, and the c.77,ss.28,29. law as to payments to the senior puisne judge of the Queen's Bench and Queen's coroner is amended; sect. 29 is partly repealed by Statute Law Revision Act, 1883.] [Sect. 30 repeals sect. 16 of the Chancery Funds Act; 1872 (p. 203, ante), and provides that rules may be made under sect. 18 of the same Act (p.. 208, ante), with respect-to the investment of monies in Court in securities, and the conversion of securities in Court into money.] [Sect. 31 abolished the office of Secretary to the Visitors of Lunatics ; it was repealed by Statute Law Revision Act, 1883.] [Sect. 32, amending the Banlmiptoy and Insolvency Acts of 1869 as to payment of unclaimed bankruptcy dividends, was repealed, as from Jan. 1, 1884, by the Bankruptcy Act, 1883, s. 169.] 33. Prom and after the commencement of tMs Act there Bhall be repealed — (1.) The Acts specified in the Second Schedule to this Act, to the extent in the third column of that schedule mentioned, tvilhout prejudice to anything done or suffered before the said commence- ment under the enactments hereby repealed ; also, (2.) Any other enactment inconsistent with this Act or the principal Act(p). (p) The words in italics were repealed by Statute Law Revision Act, 1883. [Sect. 34, amending part of sect. 77 of the Act of 1873, is repealed by Statute Law Revision Act, 1883.] [Sect. 35 amends sect. 79 of the Act of 1873 as to chamber clerks.] Mrst Schedule. [This schedule, containing the Rules of the Supreme Court, 1875, is repealed by Statute Law Revision Act, 1883.] Second SclieduU. [This schedule, repealing certain sections of the Bankruptcy and other Acts, and of the Judicature Act, 1873, is repealed by Statute Law Revision Act, 1883.] 39 & 40 Viot. c. 59. Short title. Commence- ment of Act. APPELLATE JURISDICTION ACT, 1876. 39 & 40 VICT. Cap. 59. An Act for amending the Law in respect of the Appellate Jurisdiction of the House of Lords ; and for other purposes, [llth August, 1876.] Be it bkacted, &c. as follows : — Preliminary. 1. This Act may be cited for all purposes as " The Appellate Juris- diction Act, 1876." 2. This Act shall, except where it is otherwise expressly provided, come into operation on the first day of November, one thousand eight APPELLATE JURISDICTION ACT, 1876. 287 hundred and seventy-six, which, day is hereinafter referred to as the 39 & 40 Vict. c 69 a 2 commencement of this Act. ' Appeal. [Sects. 3—13 relate to the House of Lords.] Amendment of Acts. [Sect. 14 amends the constitution of the Judicial Committee under 34 & 35 Vict. o. 91, and provides that on the death or resignation of the paid judges of the Judicial Committee of the Privy CounoU, her Majesty may appoint a third and fourth Lord of Appeal in Ordinary ; and also provides for the appointment of assessors in the hearing of ecclesiastical cases.] [Sect. 15 has heen in part repealed by the Statute Law Revision Act, 1883, and now stands as follows : — " Whereas it is expedient to amend the constitution of her Majesty's Court of Appeal in manner hereinafter mentioned. In addition to the numher of ordinary judges of the Court of Appeal authorised to be appointed by "The Supreme Court of Judicature Act, 1875," her Majesty may appoint three additional ordinary judges of that Court. The first three appointments of addi- tional judges under this Act shall be made by such transfer to the Court of Appeal, as is in this section mentioned of three judges of the High Court of Justice, and the vacancies so created in the High Court of Justice shall not be filled up, except in the event and to the extent hereinafter mentioned. Every additional ordinary judge of the said Court of Appeal appointed in pursuance of this Act shall be sub- ject to the provisions of sections twenty-nine and thirty-seven of "The Supreme Court of Judicature Act, 1873," and shall be under an obligation to go circuits and to act as commissioner under eommissions of assize or other commissions authorised to be 'issued in pursuance of the said Act, in the same manner in all respects as if he were a judge of the High Court of Justice. There shall be paid to every additional ordinary judge appointed in pursuance of this Act, in addition to the salary which he would otherwise receive as an ordinary judge of the Court of Appeal, such sum on account of his expenses on circuit or under such commission as aforesaid as may be approved by the Treasury upon the recommendation of the Lord Chancellor. Subject as aforesaid, the provisions of the Supreme Court of Judicature Acts, 1873 and 1875, for the time being in force in relation to the appointment of ordinary judges of her Majesty's Court of' Appeal, and to their tenure of office, and to their precedence, and to their salaries and pensions, and to the officers to be attached to such judges, and aU other provisions relating to such ordinary judges, shall apply to the additional ordinary judges appointed in pur- suance of this section in the same manner as they apply to the other ordinary judges of the said Court ; and for the purpose of the pension of any person ap- pointed under this Act, an additional ordinary judge of appeal, service in the High Court of Justice, or in any Court whose jurisdiction is transferred to the High Court of Justice or to the Court of Appeal, shall be deemed to have been service in the Court of Appeal."] 16. Orders for constituting and holding Divisional Courts of the Orders in Court of Appeal, and for regulating the sittings of the Court of Appeal jo^duct of and of the Divisional Courts of Appeal, may he made, and when made, business in in like manner rescinded or altered, by the President of the Court of q®^ ^^^"^^ ^ Appeal, with the concurrence of the ordinary judges of the Court of Appeal. Appeal, or any three of them ; and so much of section seventeen of " The Supreme Court of Judicature Act, 1875," as relates to the regula- tion of any matters subject to be regulated by orders under this section, and so much of any rules of Court as may be inconsistent with any order made under this section, shall be repealed, without prejudice nevertheless to any rules of Court made in pursuance of the section so repealed, so long as such rules of Court remain unaffected by orders made in pursuance of this section {a), (a) The words in italics are repealed by Statute Law Revision Act, 1883. 288 APPELLATE JURISDICTION ACT, 1876. 39 & 40 Vict. 17. On and after the first day of December, one thousand eight "■ ' ^' hundred and seventy-six, every action and proceeding in the High Regulations Court of Justice, and all husiness arising out of the same, except as is of Hiffh^SiS; hereinafter provided, shall, so far as is practicable and convenient, he of Justice and heard, determined and disposed of before a single judge, and aU Court8°of proceedings in an action subsequent to the hearing or trial, and down High Court, to and including the final Judgment or order, except as aforesaid, and always excepting any proceedings on appeal in the Court of Appeal, shall, so far as is practicable and convenient, be had and taken before the judge before whom the trial or hearing of the cause took place : Provided nevertheless, that Divisional Courts of the High Court of Justice may be held for the transaction of any business which may for the time being be ordered by rules of Court to be heard by a Divisional Court ; and any such Divisional Court when held shall be constituted of two judges of the Court and no more, unless the President of the Division to which such Divisional Court belongs, with the concurrence of the other judges of such division, or a majority thereof, is of opinion that such Divisional Court should be constituted of a greater number of judges than two, in which case such Court may be constituted of such number of judges as the President, with such concurrence as aforesaid, may think expedient ; nevertheless the decisions of a Divisional Court shall not be invalidated by reason of such Court being constituted of a greater number than two judges ; and Eules of Court for carrying into effect the enactments contained in this section shall be made on or before the first day of December, one thousand eight hundred and seventy-six, and may be afterwards altered ; and all rules of Court to be made after the passing of this Act, whether made under "The Supreme Court of Judicature Act, 1875," or this Act, shall be made by any three or more q/the following persons, of whom, the Lord Chancellor shall be one, namely, the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron nf the Exchequer, and four other judges of the Supreme Court of Judicature, to he from time to time appointed for the purpose hy the Lord Chancellor in writing under his hand, such appointment to continue for such time as shall he specif ed therein, and all such rules of Court shall be laid before each House of Parliament within such time and subject to be annulled in such manner as is provided by ' ' The Supreme Court of Judicature Act, 1876." There shall be repealed on and after the first day of December, one thousand eight hundred and seventy-six, so much of sections forty, forty- one, forty-two, forty-three, forty-four, and forty-six of ^' The Supreme Court of Judicature Act, 1873," as is inconsistent with the provisions, of this section (J>). (i) The words in italics are repealed by Statute Law Revision Act, 1883 ; there appears to be some mistake with regard to the second paragraph. The first part of the section is amended as to the Queen's Bench Piyision by Judicature Apt, APPELLATE JURISDICTION ACT, 1876. 289 1884, sect. 4, in the maiginal note to which " o. 39 " appears to have been inserted 39 & 40 Viet, instead of " c. ,69." o. 69, s. 17. [Sect. 18 gives power in certain events to fill vacancies occasioned in the High Court by removal of judges to the Court of Appeal.] 19. Where a judge of the High Court of Justice has been Attendance requested to attend as an additional judge at the sittings of the Court H^t'^^^jo^^ of Appeal under section four of " The Supreme Court of Judicature of Justice on Act, 1875," such judge shall, although the period has expired during ^^^*^ °* which his attendance was requested, attend the sittings of the Court of Appeal for the purpose of giving judgment or otherwise in relation to any case which may have been heard by the Court of Appeal during his attendance on the Court of Appeal. 20. "Where by Act of Parliament it is provided that the decision of Amendment any Court or judge the jurisdiction of which Court or judge is trans- ^ Judicature f erred to the High Court of Justice is to be final, an appeal shall not appeals from lie in any such case from the decision of the High Court of Justice, or ^'f'^ p°™*^ „.,,.,-_. °. . of Justice in of any judge thereof, to her Majesty's Court of Appeal. certain cases. [Sect. 21, as to vacancies in legal ofSoes, is repealed by Statute Law Revision Act, 1883.] 22. A district registrar of the Supreme Court of Judicature may Appointment from time 'to time, but in each case with the approval of the Lord of deputy by Chancellor and subject to such regulations as the Lord Chancellor may registrar. from time to time make, appoint a deputy, and all acts authorized or required to be done by, to, or before a district registrar may be done by, to, or before any deputy so appointed : Provided always, that in no case such appointment shall be made for a period exceeding three months. This section shall come into force at the time of the passing of this Act. [Sect. 23 appoints a vice-admiral, judge, and o£Scers of the Vice-Admiralty Court.] Repeal and Definitions, [Sect. 24, repealing certain sections of the Church Discipline Act, the Judicature Act, 1873, and the Judicature Act, 1875, is repealed by the Statute Law Revision Act, 1883.] 25. In this Act, if not inconsistent with the context, the following Definitions: expressions have the meaning hereinafter respectively assigned to them ; that is to say, " High judicial ofSce " means any of the following offices; that is to 1' High say, ~ office;" The office of Lord Chancellor of Great Britain or Ireland, or of paid judge of the Judicial Committee of the Privy Council, or of judge of one of her Majesty's superior Courts of Great Britain and Ireland : "Superior Courts of Great Britain and Ireland" means and includes, — As to England, her Majesty's High Coui-t of Justice and her "superior ° o ./ o Courts; M. U 290 APPELLATE JURISDICTION ACT, 1876. 39 & 40 Vict. Majesty's Court of Appeal, and the superior Courts of law and °- ^^' ^- ^^- equity in England as tiey existed before the constitution of lier Majesty's High Court of Justice ; and As to Ireland, the superior Courts of law and equity at Dublin ; and As to Scotland, the Court of Session. " error." "Error" includes a writ of error or any proceedings in or by way of error. o J ' his hand. [By sect. 7, judges of County Courts are to have eyery qualification conferred on Queen's counsel by 13 & 14 Vict. c. 25.] [Sect. 8 relates to appeals from referees, Queen's Bench SlTision.] Judge may order trial by an official referee in certain oases. Causes wHoh may be re- ferred to arbitrator maybe referred to official referee. Parties under agreement of reference may refer to official referee. Saving as to district registrars. Summary applications under statutes. IS & 19 Vict. 0. 134, s. 16. Business ■vphich Court is not em- powered to dispose of in 9. In any cause or matter (other than a criminal proceeding by the Crown) now pending or hereafter commenced before the High Court of Justice or Court of Appeal, in which all parties who are under no disability consent thereto, the Court or a judge may at any time, on such terms as may be thought proper, order the whole cause or matter to be tried before an official referee, who shall have power to direct in what manner the judgment of the Court shall be entered, and to exercise the same discretion as to costs as the Court or judge could have exercised. 10. In all cases in which the Court or a judge may, under sections three, six, or twelve of the Common Law Procedure Act, 1854, direct any matter to be ascertained by a master or referred to an arbitrator, or to an officer of the Court, or appoint an arbitrator, such Court or judge may direct such matter to be ascertained by or referred to an official referee, who shall in that case perform all such duties and exercise all such powers as would have been performed or could have been exercised by such master, arbitrator, or officer. 11. Whenever the parties to any deed or instrument in writing, made or executed after the commencement of this Act, or any of them, shall agree that any existing or future difference between them, or any of them, shaU. be referred to an official referee, it shall be the duty of any one of the official referees to whom application shall be made for the purpose, subject to any order which may be made by the Court or a judge for the transfer of the matter to any other official referee, or otherwise, to hear and determine any difference so agreed to be referred, and every such agreement shall be deemed to be an agreement to refer to arbitration within the meaning of sections eleven and seventeen of the Common Law Procedure Act, 1854. 12. Nothing in this Act shall interfere with any existing provisions as to any proceedings before district registrars. 13. The provisions of section sixteen of the Act eighteen and, nine- teen Victoria, chapter one hundred and thirty -four, shall extend to all applications under any Act of Parliament heretofore passed, or hereafter to be passed, under or by virtue of which the High Court of Justice, or any judge thereof, is empowered to make orders in respect of trust funds,, or any other matters, upon petition presented, or motion made, in a summary way (o). (b) Sect. 16 of tbe Act here referred to (Despatch of Business (Court of Chancery) Act, 1865) is as follows:—" And whereas by divers Acts of Parliament the Court of Chancery is empowered to make orders in respect of the disposition of trust funds, and other matters under its jurisdiction, upon petition presented or motion made in a summary way, without bUl, but such orders cannot be made in respect JUDICATURE ACT, 1884. ' 303 of liiie same matters upon application at chambers : Be it therefore enacted, that 47 & 48 Yiot. the business to be disposed of by the IVIaster of the Kolls and the Vice-Chancellors, c. 61, s. 13. respectively, while sitting at Chambers, shall comprise such of the matters in respect of which the Court of Chancery is so as aforesaid empowered to make orders in a * summary summary way, as the Lord Chancellor, with the advice and assistance of the Master ''^ay, may bo of the Rolls and the Vice-Chancellors, or any two of them, may by any general disposed of at order direct. ' ' The section has not been repealed either expressly or by implication ; chambers, see Ex parte Mayor of London, 25 Ch. D. 384. 14. Where any person neglects or refuses to comply -witli a judg- Execution of ment or order directing Idm to execute any conveyance, contract, or ty order of other document, or to indorse any negotiable instrument, the Court *^^ Court. may, on such terms and conditions (if any) as may be just, order that such conveyance, contract, or other document shall be executed, or that such negotiable instrument shall be indorsed by such person as the Court may nominate for that purpose ; and in such case the conveyance, contract, document, or instrument so executed or indorsed shall operate and be* for aU purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it. [Sect. 15. Proceedings in quo warranto to be deemed civil proceedings.] 16. Section one of the Act seventeen and eighteen Victoria, chapter ■^t"?'^!'^* thirty-four, entitled, " An Act to enable Courts of law in England, viot. o. 34, Ireland, and Scotland to issue process to compel the attendance of s. 1. -witnesses out of their jurisdiction, and to give effect to the service of such process in any part of the United Kingdom," is hereby amended so as to authorise and empower a judge of the High Court to make orders as therein mentioned as well when the Court is sitting as at any other time. 17. If it shall appear to the Court or a judge that any proceeding Power to now pending or hereafter commenced in the High Court of Justice by terpleato' way of interpleader, in which the amount or value of the matter in proceedings dispute does not exceed the sum of five hundred pounds (being the court™*'' limit of the equitable jurisdiction given to County Courts by the Coimty Courts Act, 1865) may be more conveniently tried and deter- 28 & 29 Yict. mined in a County Court, the Court or judge may at any time order the transfer thereof to any County Court, in which an action or pro- ceeding might have been brought by any one or more of the parties to such interpleader against the others or other of them, if there had been a trust to be executed concerning the matter in question ; and every such order shall have the same effect as if it had been for the transfer of a suit or proceeding under section eight of the County 30 & 31 Vict. Courts Act, 1867 ; and the County Court shaU have jurisdiction and "• ^^'^• authority to proceed therein, as may be prescribed by any County Court rules for the time being in force. 18. The jurisdiction of an inferior Court in cases of counterclaim Jurisdiction under sections eighty-nine and ninety of the Supreme Court of Judica- ooStHn' ture Act, 1873, shall not be excluded ,by reason (1) that any such couuter- olaims. 304 JIJDICATURfi ACT, 1884, 47 & 48 Vict, counterclaim involves matter not witHn the local jurisdiction of such. — — ' inferior Court, but within the jurisdiction of any other inferior Court ^^fifi ^^ ^^''*' ™ England ; or (2) that, where the counterclaim involves more than one cause of action, as to each of which the defendant might have maintaiaed a separate action, each such cause of action being within the jurisdiction of the Court, the aggregate amount of the counter- claim exceeds the jurisdiction of the Court ; or (3) that the counter- claim is for an amount of money exceeding the jurisdiction of the Court, provided that the plaintiff does not object in writing, within such time as may be prescribed by any rules, to the Court giving relief exceeding that which the Court would have had jurisdiction ,to administer prior to the commencement of this Act. In any case where the counterclaim involves matter beyond the jurisdiction of the Court, notwithstanding the provisions of this section, the Court may, on such terms (if any) as the Court may think just, either adjourn the hearing of the case, or stay execution on the judgment, for such time as may be necessary to enable any party to apply to remove the proceedings into the High Court of Justice, or to enable the defendant to prosecute in a Court of competent jurisdiction an action for the purpose of establishing his counterclaim ; and in default of any such application being made, or action brought, the Court shall, after the expiration of the time limited, have jurisdiction to hear and determine the whole matter in controversy, to the same extent as if all parties had consented thereto. [Sect. 19 relates to patronage under 42 & 43 Vict. c. 78.] [Sect. 20 relates to salaries and pensions.] [Sect. 21 relates to the dippolntment of circuit officers.] [Sect. 22 aholishes the offices ol the sWom clerks formerly attached to the office of the Chancery examiners.] [By sect. 23, the power to make rules conferred by sect. 17 of the Judicature Act, 187S, and enactments amending the same is to include the power to make rules for regulating the procedure on appeals from inferior Courts to the High Court.] [Sect. 24 relates to rules for inferior Courts.] RULES 0^ THE SUPEEME OOUHT, 1883. 305 EULES OF THE SUPEEME COUET, 1883. The following orders and rules may be cited as " The Eules of the Supreme Court, 1883," they shall come into operation on the twenty- fourth day of October, 1883, and shall also apply, so far as may be practicable (unless otherwise expressly provided), to all proceedings taken on or after that day in all causes and matters then pending. The orders and rules mentioned in Appendix 0. hereto are hereby annulled, and the following orders and rules shall stand in lieu thereof. For AppendLx: O., see infra. See also the Statute Law Revision and Civil Pro- cedure Act, 1883, and the schedule thereto, which repeals several important statutes. As to the authority under which these rules are made, see Judicature Act, 1876, H. 17 ; AppeUate Jurisdiction Act, 1876, s. 17 ; Judicature (Officers) Act, 1879, B. 22 ; Judicature Act, 1881, s. 19 ; Hx parte Mayor of Imdon, 25 Ch. U. 384. For interpretation of terms, see Ord. LXXL, post. As to the application of the orders and rules to proceedings pending on October 24th, 1883, see Sell v. Earl of mimoret/, W. N. (1883), 207 ; JE. v. J. ib. 207. The Bules as issued have no marginal notes. OEDEE I. FoEM AST) Commencement of Action. 1 . All actions which, previously to the commencement of the prin- Institution of cipal Act (o), were commenced by writ in the superior Courts of ^° "'"' common law at Westminster, or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, and all suite (J) which, previously to the commencement of the principal Act (a), were com- menced by bill or information (c) in the High Court of Chancery, or by a cause in rem or m personam in the High Court of Admiralty, or by citation or otherwise in the Court of Probate, shall be instituted in the High Court of Justice by a proceeding to be called an action (rf). (a) The " principal Act " means the Judicature Act, 1873 ; see Ord. LXXL r. 1, " Principal post. Act." (i) As to suits involving less than 201., see Judicature Act, 1873, s. 67, and note guUg for thereto, ante. p. 271. If the plaintiff in an action founded on contract does not triflina' recover more than oOl. he will (in the absence of special order) only get County amounts Court costs (Ord. LXV. r. 12, and cases there cited, post). (c) The title " information " ought not now to be used, and was struck out of a Information, statement of claim by Jessel, M. E,. [Attorney-General v. Shrewsbury Bridge Co., W. N. (1880), 23 ; 42 L. T. 79). Where there is no relator the Attorney-Greneral's signature on the writ is not required ; but where there is a relator (whether a person or a body corporate) the original writ (not the copy filed) must be signed by the Attorney- General ; and if any amendment be made it must be authorized ^ his signature on the original writ or draft (Central Office Practice Eules, Ord. LXI. r. 33, infra). See also Caldwell v. Pagham Barbour Co., 2 Cb. D. 221, where an action was turned into an information and action. Before the name of any person can be used as relator his written authority for Written that purpose must be filed in the central office or district registry (Ord. XVI. r. 20). authority to In a pressing case the authority may be allowed to be .filed after the institution of be filed, the suit [A.-G. v. Murray, 13 W. E. 65 ; A.-G. v. Wiltshire, 48 L. J. Ch. 53). (d) "Action" means a civil proceeding commenced by writ, or in such other "Action " manner as may be prescribed by rules of Court (Judicature Act, 1873, b. 100, ante, p. 276). As to cases in which notice of action is required, see Addison on Torts, Notice of p. 712. Where the action is for an injunction to restrain a nuisance, notice is not action, necessary ; see Ilower v. Local Board of Low Leyton, 5 Ch. D. 347 ; 25 W. E. 423 ; M. X 306 Ord. I. Sayiiig of former practice. RULES OP THE SUPREME COURT, 1883. A.-G. V. Maokmy Local Soard, 20 Eq. 626 ; Baleer v. Corporation of Wisleach, "W. N. (1877), 56 ; and see also Foat v. Mayor of Margate, 11 Q. B. D. 299. 2. All other proceedings in and applications to the High Court may, subject to these rules, be taken and made in the same manner as they would have been taken and made in any Court in which any proceed- ing or application of the like kind could have been taken or made if the Acts (e) had not been passed (/). («) "The Acta " mean the Judicature Acts, 1873—1879, the Appellate Jurisdic- tion Act, 1876, and the Judicature Act, 1881 (Ord. LXXI. r. 1). (/) See Judicature Act, 1875, s. 21, ante, p. 284, and Ord. LXXII. r. 2, infra, vnioh continue the existing practice where not inconsistent with the Act or rules. Where there is a difference between the old chancery and common law practice, and the new rules contain no provision on the point, that practice is to prevail which the Court considers the more convenient ; see Fowler v. Bantow, 20 Ch. D. 240 ; NewUggin Gas Co. v. Armstrong (C. A.), 13 Ch. D. 310; Nurses. Sarnford, ibid., 764. OEDEE II. Wbit of Sxtmmons and Pboceditre, &c. 1. Every action in the High Court shall be commenced by a writ of summons, which shall be indorsed {g) with a statement of the nature of the claim made, or of the relief or remedy required La the action {h), and which shall specify the division of the High Court to which it is intended that the action should be assigned (i). {^) As to the indorsement, see Ord. III., infra. [h] If the plaintiff seeks for an injunction, a receiver, or any special order or relief, it is lisual and proper to indorse the writ with a specific claim for this purpose ; but it is not absolutely necessary (Judicature Act, 1873, s. 25 (8), ante, p. 259 ; Ord. Ii. r. 6, infra ; Colelourne v. Colebourne, 1 Ch. D. 690 ; Norton v. Gover, W. N.' (1877), 206 ; Ord. III. r. 2, post, p. 307) ; and a defective indorsement may be amended (Ord. XXVIII. r. 1, infra). (i) The writ of summons in an action in the Chancery Division must also be marked by the officer issuing it with the name of one of the judges of the Chancery Division to whom for the time being chambers are attached (Ord. V. r. 9, post, p. 312). As to the requisite statements on the face of the writ where it is issued out of a district registry, see Ord. V. rr. 3, 4, post, p. 312. 2. Any costs occasioned by the use of any forms (_/) of writs, and of indorsements thereon, other or more prolix than the forms here- inafter prescribed, shall be borne by the party using the same, unless the Court or a judge shall otherwise direct (A). {/) For forms of writs and indorsements, see Appendix A., infra. {!c) See also Ord. LXV. r. 27 (20), post, as to costs of unnecessary matter. Form of writ. 3_ The writ of summons for the commencement of an action shall, except in the cases in which any different form is hereinafter provided, be iu one of the Eorms Nos. 1, 2, 3 and 4, in Appendix A., Part I., with such variations as circumstances may require {I). Title of writ (0 l^or these forms, see post. Variations may be allowed in a proper case {Bacon in adminis- v. Turner, 3 Ch. D. 276 ; Keate v. Fhillips, W. N. (1878), 186). In the case of an tration action, administration action the writ must be intituled "In the matter of the estate of A. B. deceased. Between &c." ; see Fyre v. Cox, 24 "W. R. 317. The objectof this is to enable the action to be indexed under the name of the estate to be administered. Commence- ment by writ of summons. Indorsement. Marking writ with name of a judge. District registry. Costs of prolixity. RULES 01' THE SUPREME COURT, 1883. 307 4. No writ of summons for service out of the iurlsdiction, or of Ord. II. wMcli notice is to be given out of tlie jurisdiction, shall he issued -^^it for without the leave of the Court or a iudge (m). service out of •" o \ / junsdiotion. (ot) As to service out of the jurisdiction generally, see Ord. XI., post. Applications for leave to issue a -writ for service out of the j urisdiotion, and for Applications leave to serve out of the jurisdiction the writ when issued, are made at Chambers, for leave to and either simultaneously or separately. When they are made separately, a copy issue and of the writ is brought to the chief clerk, and a verbal statement made to him of leave to serve the nature of the action, whereupon, unless the case is one which requires to be in the brought under the personal consideration of the judge, a, course which is adopted Chancery in all but very plain cases, the chief clerk indorses on the copy of the writ the leave Division, to issue it, and the subsequent order for leave to serve is made upon affidavit intituled in the action. If the appUcations are made simultaneously, the applica- tion for leave to serve must be supported by an affidavit intituled in the matter of the intended action [Stigand v. Stigand, 19 Ch. D. 460, not following Tmmg v. Brassey, 1 Ch. D. 277). When the defendant is neither a British subject nor in British dominions, .notice Notice in lieu of the writ, and not the writ itself, is served upon him (Ord. XI. r. 6, post). of writ. An order for leave to issue need not be drawn up {Ord.' LII. r. 14, post). The Court will not allow service on an ambassador of a writ against a foreign sovereign (StewartY. Bank'of England, W. N. (1876), 263). 5. A writ of summons to be served out of the jurisdiction, or of Form of writ which notice is to be given out of the jurisdiction, shall be in one of Q^^^of ij^- the Forms Nos. 5, 6, 7 and 8 in Appendix A., Part I., with such varia- diction, tions as circumstances may require. Such notice shall be in one of the Forms Nos. 9 and 10 in the same part, with such variations as circumstances may require («). (») For the forms here referred to, see post. 6. No writ shall hereafter be issued under the Summary Procedure BUls of Ex- on Bills of Exchange Act, 1855 (18 & 19 Yict. c. 67) (o). o^^nge Act, (o) This Act is repealed by the Statute Law Revision and Civil Procedure Act, 1883, 46 & 47 Vict. c. 49, o. 4. [Rule 7 relates to the writ in Admiralty actions.] 8. Every writ of summons, and also (unless by any statute or by Date and these rules it is otherwise provided) every other writ, shall bear date ofgu^Jo"*^ on the day on which the same shall be issued, and shall be tested in the name of the Lord Chancellor, or, if the office of Lord Chancellor shall be vacant, in the name of the Lord Chief Justice of England {p). (p) As to vacancies in these offices, see Ord. LXXII., post. A mistake in the teste is unimportant {Wesson v. StalJeer, 47 L. T. 444). A writ is issued by being sealed by the proper officer, see Ord. V. i. 11. OEDEE III. LfDOESEMENXS OF ClAIM. 1. The indorsement of claim shall be made on every writ of summons indorsement before it is issued. "^ claim. 2. In the indorsement requii-ed by Order II., Eule 1, it shall not be Precise essential to set forth the precise ground of complaint, or the precise ground of remedy or relief to which the plaintiff considers himself entitled {q). need not be stated, (j) See note [h), ante, p. 306. Whenever a statement of claim is delivered, the plaintiff may alter his claim without amending the indorsement on the writ (Ord. X2 30^ RULES 05* fHE StTPREMlE COXJRT, 18g3. Ord. III. Account. Form of indorsement. Where plaintiff or defendant sues or is sued in a representative capacity. Special indorsement in case of liquidated demand. Advantage of special in- dorsement. XX. r. 4, post, p. 362). As to amendments generally, see Ord. XXVIII. r.l, past, p. 362 ; and the Central Office Practice Eules, given in note to Ord. LXI. r. 33, infra. a ..i Where the plaintiff seeks for an account, the writ must be indorsed with a claim for this purpose, see rule 8, post, p. 309. 3. The indorsement of claim shall te to the effect of such of the Forms in Appendix A., Part III., as shall he applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require (/■). (r) For these forms, see infra. 4. If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the indorsement shall show, in manner appearing by such of the Forms in Appendix A., Part III., sect. 7, as shall be applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued (s). (s) For these forms, see infra. Where a creditor seeks to have the real and personal estate of a deceased debtor administered by the Court, he must sue on be- half of himself and other the creditors, and the -svrit must be indorsed accordingly (Worraker v. Fryer, 2 Ch. D. 109 ; Re Royle, 5 Ch. D. 540 ; Re Vincent, 26 W. E. 94 ; W. N. (1877), 249 ; Adeoclc v. Peters, W. N. (1876), 139 ; Richardson v. Leake, W. N. (1879), 181) ; secus, where administration of the personal estate only is sought {Ue Blount, 27 W. E. 865 ; Re Greaves, 18 Ch. D. p. 554) ; see also Ord. XVI. r. 9, post, p. 335. If either party wish to deny the representative character of the other, he must do so specifically ; see Ord. XXI. r. 5, post, p. 363. [Rule 5 relates to Probate actions.] 6. In all actions where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or with- out interest, arising (A.) upon a contract, express or implied, (as, for instance, on a biU of exchange, promissory note, or cheque, or other simple contract debt) ; or (B.) on a bond or contract under seal for pay- ment of a liquidated amount of money ; or (0.) on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty ; or (D.) on a guaranty, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only^ or (E.) on a trust; or (F.) in actions for the recovery of land, with or withT)ut a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or against persons claiming under such tenant ; the writ of summons may, at the option of the plaintiff, be specially indorsed with a statement of his claim, or of the remedy or relief to which he claims to be entitled (<). Such special indorsement shall be to the effect of such of the Forms in Appendix C, sect. 4, as shall be applicable to the case (m). (i) Supposing the plaintiff to have specially indorsed his writ, then — (1) If the defendant does not appear, the plaintiff may enter final judgment (Ord. XIII. rr. 3, 4, post, p. 327) ; though, indeed, this applies in every case in which the writ is indorsed for a liquidated demand, whether specially or otherwise (ibid.). (2) Notwithstanding appearance, the plaintiff may sign final judgment unless the defendant can satisfy the judge that he ought to be allowed to defend (Ord. XIV. 1. l,post, p. 330J. RULES OF THE SUPEEME COURT, 1883. g09 (3) No statement of claim is necessary, or indeed allowable (Ord. XX. i. 1, Ord. III. post, p. 361). : Under the old rule the indorsement had to give particulars of the amount claimed after giving credit for any payment or set-ofE. As to what was a sufficient indorsement under this rule, see Smith v. Wilson, 5 C. P. B. 25 ; Walker v. Hicks, 3 Q. B. D. 8 ; Parpaile v. Dickenson, 26 "W. R. 479 ; W. N! (1878), 51 ; Aston v. Sarwitz, "W. N. (1879), 194; 41 L. T. 521; Teatman v. Snow, 28 "W. R. 574; Godden v. Coraten, 5 0. P. D. 17. An action on a foreign judgment is within this rule {Grant v. Saston, W. N. (1883), 218). This rule applies in the case of an action by mortgagee against mortgagor who Recorery of has attorned tenant to him {Daubuz v. Lavington, 13 Q. B. D. 347) ; but see Sohson land. V. Monk, ~W. N. (1884), 17. It does not apply to an action by landlord against tenant under a forfeiture clause (Sums v. Walford, TV. N. (1884), 31 ; Manserah v. Simell, W. N. (1884\ 34). («) As to these forms, see infra. The use of them -when applicable is obli- gatory (Ord. XIX. r. 5, post, p. 356). 7. Wherever the plaintiff's claim is for a debt or liquidated, demand Amount of only, the indorsement, besides stating the nature of the claim, shall '^®^' ^"4 state the amount claimed for debt, or in respect of such demand, and indorsed, for costs respectively, and shall further state, that upon payment thereof mthin four days after service, or in case of a writ not for service within the jurisdiction within the time allowed for appearance, further proceedings will be stayed (?«). Such statement shall be in the Form in Appendix A., Pt. III., sect. 3 (a;). The defendant may, notwith- standing such payment, have the costs taxed, and if more than one- sixth shall be disallowed, the plaintiff's solicitor shall pay the costs of taxation (y). (iv) The use of this indorsement is obligatory. As to the effect of such an indorsement, see J^cpcquot v. Boura, 5 Mee. & W. p. 156. [x) For form, see infra. \jl) Cf. the Solicitors' Act, 1843, s. 37, ante, p. 2. If the plaintiff accept pay- ment after the four days the defendant is entitled to have the costs taxed under this rule {MooU v. Mamshaw, 39 L. T. 410 ; W. N. (1878), 227). 8. In all cases in which the plaintiff, in the first instance, desires to Claim for an have an account taken, the writ of summons shall be indorsed with a ^''*'°™*- claim that such account be taken (z). (z) When the -writ is thus indorsed an order for the account can be made at chambers ; see Ord. XV. r. 1, post, p. 332, and cases there cited. In the old rules the words were " ordinary account," and it was held that this did not include an account on the footing of wilful neglect (-Re Sowen, 20 Ch. D. 638). OEDEE IV. Indobsement of Address. 1 . In all cases where a writ of summons is issued out of the Central Indorsement Office, the solicitor of a plaintiff suing by a solicitor shall indorse upon °^ address. the writ and notice in lieu of service of a writ the address of the plaintiff, and also his own name or firm and place of business, and also, if his place of business shall be more than three miles from the prin- cipal entrance of the central hall at the Eoyal Courts of Justice, another proper place, to be called his address for service, which shall not be more than three miles from the principal entrance of the central hall 310 RULES OF THE STJPEEME COURT, 1883. . Ord. IV. Indorsement of address ■where plaintiff sues in person. Where writ issued out of district registry. at tie Eoyal Courts of Justice, where writs, notices, pleadings, peti- tions, orders, summonses, warrants, and other documents, proceedings, and written communications may be left for Mm. And where any such solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor (a). (a) As to service of orders, &o., generally, see Ord. LXVII., infra. This rule does not enable a defendant vhere one plaintiff sues on behalf of others to call for the a,ddreBs of their solicitors [Leathleyx. McAndrew, W. N. (1875), 259 ; but as to partners, see Ord. VII. r. 2, post, p. 314. 2. In aU cases where a writ of summons is issued out of the central office, a plaintiff suing in person shall indorse upon the writ and notice in lieu of service of a writ his place of residence and occupation, and also, if his place of residence shall be more than three miles from the principal entrance of the central hall at the Eoyal Courts of Justice, another proper place, to be called his address for service, which shall not be more than three miles from the principal entrance of the central hall at the Eoyal Courts of Justice, where writs, notices, pleadings, petitions, orders, summonses, warrants, and other documents, pro- ceedings, and written communications may be left for him (6). ' (i) If the plaintiff's address is not stated, or not correctly stated, he may be ordered to amend the writ by inserting his correct address, and in default of his so doing the action may be stayed ; if he resides abroad, security for costs may be leqvtirei (Kenm/ \. Soilings, Seton, 1644). As to security for costs generally, see Ord. LXv. r. 6, and notes thereto, infra. 3. In all cases where a writ of summons is issued out of a district registry the solicitor of a plaintiff suing by a solicitor shall indorse upon the writ, and notice in lieu of service of a writ, the address of the plaintiff, and his own name or firm and place of business, which shall, if his place of business be within the district of the registry, be an address for service, and if such place be not within the district, he shaU add an address for service within the district, and, where the defendant does not reside within the district, he shall add a further address for service, which shaU not be more than three miles from the principal entrance of the central hall at the Eoyal Courts of Justice ; and where the solicitor issuing the writ is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor. "Where the plaintiff sues in person, he shall indorse upon the writ, and notice in lieu of service of a writ, his place of residence and occupation, which shall, if his place of residence be within the district, be an address for service, and if such place be not within the district, he shall add an address for service within the district, and, where the defendant does not reside within the district, he shall add a further address for service, which shall not be more than three miles from the principal entrance of the central hall at the Eoyal Courts of Justice (c). \e) Where a -writ is issued out of a district registry and served outside the RULES OF THE SUPREME COURT, 1883. qh district, notice of appearance must be sent to the address for service within the Ord. IV. distmst ; notice of appearance given at the address for service in London is insufficient {Smith v. Dobbin, 3 Ex. D. 338). v 4. In all cases where prooeediiigs are commenced otherwise than by Where ■writ of summons, the preceding rules of this order shall apply to the ^ommeMed^ document by which such proceedings shall he originated as if it were otherwise a writ of summons. *'^^ ^7 ■'"^*- OEDER T. ISSTTE OF "WeITS OF SxjMMONS. I. Place of Issue. 1. In any action other than a prohate action, the plaintiff (d) Issue of writ wherever resident may issue (e) a writ of summons out of any district °^*.°^^^i8triot registry. ((?) No one can issue a writ but a solicitor or the plaintiff in person ; if anyone Who may- else issues a writ, the wrif and aU subsequent proceedings will be set aside ( Wood issue writ. V. Swan, 25 Sol. J. 134). An action cpnunenoed by a solicitor without authority will be dismissed with costs to be paid by him. (Newiiggin-by-the-Sea Gas Co. v. Armstrong, 13 Ch. D. 310 ; Nurse v. Durnford, ibid., 764). («) The Court may inquire at what period of the day a writ was issued {Clarke v. Issuins a Bradlaugh, 8 Q. B. D. 63). ^t is not a 2. Every writ of summons not issued out of a district registry shall ^^ "la ac . be issued out of the central office (_/). o^it of central (/) AU writs issued in London are issued out of the Writ Appearance and Judgment Department of the Central Office ; see Ord. LXI. r. 1, post, 3. In all cases where a defendant neither resides nor carries on Place of business ( a) within the district out of the rearistry whereof a writ of defendant's summons is issued, there shall be a statement on the face of the writ of summons that such defendant may cause an appearance to be entered at his option either at the district registry or at the central office, or a statement to the lite effect. (g) As to the meaning of "resides or carries on business," see Darnell, p. 319, and cases there cited. See forms. Appendix A., Part I., Nos. 3, 4, infra. 4. In all cases where a defendant resides or carries on business Appearance within the district, and a writ of summons is issued out of the district ^* district registry, there shall be a statement on the face of the writ of summons that the defendant do cause an appearance to be entered at the district registry, or a statement to the like effect (Ji). (A) See forms. Appendix A., Part I., Nos. 3, 4, infra. II. Assignment of Causes, Sfc. 5. Subject to the power of transfer, every person by whom any Assignment cause or matter may be commenced in the High Court of Justice, °! "r*."^^ *° ^ which would have been within the non-exclusive cognizance of the High Court. High Court of Admiralty if the principal Act had not passed, shall assign such cause or matter to any one of the divisions of the said High Court, including the Probate, Divorce and Admiralty Division, 312 RULES OF THE SUPREME COURT, 1883. Ord. V. as he may think fit, by marking the document by which the same is ~ commenced with the name of the division, and giving notice thereof to the proper officer of the Court (i). (j) As to the causes and matters specially assigned (subject to rules of Court) to the Chancery Division, see Judicature Act, 1873, s. 34, ante, p. 263 ; and as to the power of the plaintiff to choose in what division he wiU bring his action, see Judicature Act, 1875, s. 11, ante, p. 281. As to transfers, see Ord. XLIX., post, and notes thereto. [Rules 6, 7 and 8 apply only to actions in the Queen's Bench Division.] Causes and 9. Subject to the power of transfer, and to the special provision menoed in the contained in sub-section (e.) of this rule, and subject also to the power Chancery of the Lord Chancellor by order from time to time otherwise to direct, be^ssigTied every cause or matter which shall hereafter be commenced in the to and marked Chancery Division shall be assigned to and marked with the name of name of a ^^^ °-^ '^'^ judges thereof jn manner hereinafter mentioned, and shall judge, no longer be marked with the name of such judge as the plaintiff or petitioner may in his option think fit: — (a.) "Where the commencement is by writ, it shall be the, duty of the officer issuing such writ to mark the same with the name of one of the judges of the Chancery Division to whom for the time being chambers are attached (to be ascertained in the manner now used in the distribution of business amongst the conveyancing counsel of the Court) (y) ; (y) As to the conveyancing counsel and the mode in ■which business is distributed among them, see Ord. LI., Pari II. (b.) "Where the commencement is by originating summons, such summons shall be taken out in the writ department of the central office, and it shall be the duty of the officer issuing such summons to mark the same with the name of one of the said judges, to be ascertained in manner aforesaid; (c.) Where the commencement is by notice of motion, such notice of motion shall be brought to the writ department of the central office, and it shaU be the duty of the officer by whom origi- nating summonses are issued to mark the same with the name of one of the said judges, to be ascertained in manner aforesaid ; (d.) "Where the commencement is by petition, such petition shall be brought to the office of the registrars of the Chancery Division, and shall be marked by an officer to be charged by the registrars with that duty with the name of one of the said judges, to be ascertained in manner aforesaid ; (e.) "Where a cause or matter has been assigned to one of the said j udges as above mentioned, every subsequent writ, summons, or petition, relating to the administration of the same trust, or the winding-up of the same company, or so connected therewith as to be conveniently dealt with by the same judge, shaU whenever practicable be marked by the proper officer of writ. .RULES OP THE STJPEEME COURT, 1883. 313 with the name of such judge ; and the party or solicitor pre- Ord. V. sentiag such writ, summons, or petition shall, if there he to his knowledge such relation or connexion, so certify; such certificate shall he in the Form No. 19, iuAppendix A., Parti., with such variations as circumstances may require {k). (k) For this form see infra. III. Generally. 10. Writs of summons shall he prepared by the plaintiff or his soli- Preparation citor, and shall be written or printed, or partly written and partly printed, on paper of the same description as by these rules directed in the case of proceedings directed to be printed (l). (l) The Central Office Practice Rules (Ord. LXI. r. 33, and note thereto, infra) Central office contain the following general provisions as to writs of summons : — practice rules. Writs of summons issued before the Judicature Acts came into force may be renewed without an order. A female plaintiEE must be described aa "spinster," "married woman," or " widow," and if an infant, as an infant. Where an infant is plaintiff, the authority of the next friend (duly attested) must ,be filed before the writ of summons can be issued. 11. Every writ of summons shall he sealed by the proper o£B.cer, and Writ to be shall thereupon be deemed to be issued (m). {m) The Court may inquire at what time of the day a writ was issued {Clarke v. Sradlaugh, 8 Q. B. D..63.) As to the issue of writs, see Ord. LXI., post, providing for the distribution of business in the central office. 12. The plaintiff or his solicitor shall, on presenting any writ of Writ to be summons for sealing, leave with the officer a copy, written or printed, ^^^ central or partly written and partly printed, on paper of the description afore- said, of such writ and all the indorsements thereon, and such copy shall be signed {n) by or for the solicitor leaving the same, or by the plaintiff himself if he sues in person. («) Copies of writs of summons should be signed with the name of the solicitor, or solicitor's clerk suing them out, thus, " C. D. & Co. ;" or, "A. B. for C. D. & Co." The stamp is to be on the copy writ filed (Central Office Practice Rules ; Ord. LXI. r. 33, and note thereto, infra). 13. The officer receiving such copy shall file the same, and an entry Copy of writ of the filing thereof shall be made in a book to be called the Cause *° ^^ ^®^- Book (o), which is to be kept in the manner in which cause books are now kept, and the action shall be distinguished by the date of the year, a letter, and a number, in the manner in which causes aro now distinguished in such cause books; and when such action shall be commenced in a district registry it shall be further distinguished by the name of such registry. (o) As to the cause book, see Central Office Practice Rules, Ord. LXI. r. 33. 14. Notice to the proper officer (jo) of the assignment of an action Notice of 314 Ord. V. assignment of action. "Proper officer." RULES OF THE SUPREME COURT, 1883. to any division of the Court shall be sufficiently given by leaving with him the copy of the writ of summons. (p) As to the meaning of "proper officer," see Ord. LXXI. r. 1, infra. [Rule 15 relates to Probate actions.] [Rules 16 and 17 relate to Admiralty actions.] Issue of concurrent writs. Writs for . service witldn knd without jurisdiction may he con- current. OEDEE VI. CONCUERENT WeITS. 1 . The plaintiff in any action may, at the time of or at any time during twelve months after the issuing of the original writ of summons, issue one or more concurrent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a seal bearing the word " concurrent," and the date of issuing the concurrent writ; and such seal shall be impressed upon the writ by the proper officer : Provided always, that such concurrent writ or writs shall only be in force for the period during which the original writ in such action shall be in force (y). (j) As to the oases in which concurrent writs are required, see Daniell, p. 325. 2. A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service, or whereof notice in lieu of service is to be given, out of the jurisdiction ; and a writ for service, or whereof notice in lieu of service is to be given, out of the jurisdiction may be issued and marked as a concurrent writ with one for service within the jurisdiction. Solicitor on demand to declare whether writ issued by his authority. Partners suing in name of their firm to give, on demand, names, &o. of partners. OEDEE VII. I. DisoiosuBE BY Solicitors and PLAijurrPFS. 1. Every solicitor whose name shall be indorsed on any writ of summons shall, on demand in writing made by or on behalf of any defendant who has been served therewith or has appeared thereto, declare forthwith in writing whether such writ has been issued by him or with his authority or privity ; and if such solicitor shall declare that the writ was not issued by him or with his authority or privity, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a judge. 2. "When a writ is sued out by partners in the name of their firm, the plaintiffs or their solicitors shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the action is brought. And if the plaintiffs or their solicitors shall fail to comply with such demand, all pro- ceedings in the action may, upon an application for that purpose, be stayed upon such terms as the Court or a judge may direct. And RULES OP THE SUPREME COURT, 1883. 315 when the names of the partners are so declared, the action shall Ord. VII. proceed in the same manner and the same consequences in all respects shall foUow as if they had been named as the plaintiffs in the writ. Bnt all proceedings shall, nevertheless, continue in the name of the firm (»•). (r) By Ord. XVI. r. 14, any party to an action by or against partners in the name of their firm, may apply by summons to a judge for the names of the partners, to be furnished and verified in such manner as the judge may direct. As to proceedings by and against partners in the name of their firm generally, see Ord. IX., Pt. III., rr. 6, 7, post, p. 318. n. Change of Solicitors. 3. A party suing or defending by a sohcitor shall he at liberty to Change of change his solicitor (s) in any cause or matter, without an order for that purpose, upon notice of such change being filed in the central office, or in the district registry, if the cause or matter is proceeding therein ; but until such notice is filed and a copy thereof served, and (in causes or matters pending in the Chancery Division) left in the chambers of the judge to whom the cause or matter is assigned, the former solicitor shall be considered the solicitor of the party. (i)- Where there was a special contract respecting the employment of a solicitor, Special and an order of course to change solieitors was obtained, the special contract being contract as suppressed, such order was discharged with costs [Richards v. Scarborough Market t" employ- Co., 17 Beav. 83 ; Jenkins y. Bryant, 3 Drew. 70 ; and see Topping v. Searson, 2 ™ent of a H. & M. 205). sohcitor. ORDEE YIII. Eehewal op Writ. 1. No original writ of summons shall be in force for more than Renewal of twelve months (t) from the day of the date thereof, including the day ^,"*^„^^ of such date ; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to the Court or a judge for leave to renew the writ ; and the Court or judge, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed writ. And the writ shall in such case be renewed by being marked with a seal bearing the date of the day, month, and year of such renewal ; such seal to be provided and kept for that purpose at the proper office, and to be impressed upon the writ by the proper officer, upon dehvery to him by the plaintiff or his sohcitor of a memorandum in Form No. 18 in Appendix A., Part I., with such variations as circumstances may require ; and a writ of summons so renewed shall remain in force, and be available to prevent the operation of any statute whereby the time for the com- mencement of the action may be limited, and for aU other purposes, from the date of the issuing of the original writ of summons. (<) The twelve months run from the date of issue {Se Jones, Myre v. Cox, 25 316 RULES OF THE SUPREME COURT, 1883. Ord. VIII. Production of renewed writ. Lost writ. Eiled copy of lost writ. Undertaking to accept service. Ord. XII. r. 18. Service of writ personal or substi- tuted. Personal service. When service maybe effected. Service of amended writ. "Prompt personal service." W. R. 303 ; 46 L. J. Ch. 316 ; W. N. (1877), 38, where there had been an amend- - ment). In that case the Court allowed the writ to be renewed under R. S. 0. 1875, Ord. LVII. r. 6, (now Ord. LXPV. r. 7, post) ; but where the Statute of Limitations had run in the meantime, renewal was refused {Doyle v. Katifman, 3 Q. B. D. 7, 340). a. The production of a writ of summons purporting to be marked ■with the seal of the Court, showing the same to have heen renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the first date of such renewed writ for all purposes. 3. Where a writ, of which the production is necessary, has been lost (m), the Court or a judge, upon being satisfied of the loss, and of the correctness of a copy thereof, may order that such copy shall be sealed and served in lieu of the original writ. (m) The filed copy of a writ that has been lost may be treated as a duplicate, but only by leave of a practice master, and on the party giving an undertaking to pro- duce the original at the central ofiice when found (C. 0. Pr. Rules; Ord. LXI. r, 33, infra). OEDEE IX. Sebvice or Writ of Stimmohs, I. Mode of Service. 1 . No service of writ shall be required when the defendant, by his solicitor, im.dertates in writing {w) to accept service and enters an appearance. (w) A soKcitornot entering an appearance in pursuance of his written undertaking so to do is liable to an attachment (Ord. XII. r. 18, post, p. 324). 2. When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service is now made (x), but ii it be made to appear to the Court or a judge that the plaintiff is from any cause unable to effect prompt personal service (y), the Court or judge may make such order for substituted or other service (z), or for the substitution for service of notice (a), by advertisement or other- wise, as may be just. See Ord. LXVII. r. 6, post. (x) Personal service is generally eflfeoted by delivering a copy of the writ to the defendant personally, and at the same time diowing him the original if demanded j see Toole v. Gould, 1 H. & N. 99 ; Hamthorn v. Sarris, 23 W. R. 214 ; see also Ord. LXVII. rr. 1, 6, post. If the defendant refuses to receive the copy of the writ, and he be then informed of the nature of the process, and the copy be thrown down in his presence, it is sufficient personal service {Bell v. Vinoent, 7 D. & R. 233). Service on Sunday is wholly void {Mackreth v. Nicholson, 19 Ves. 367 ; Taylor v. Fhillips, 3 East, 155). On other days, except Saturday, service must be effected before six ; on Saturday it must be before two (Ord. LXIV. r. 11). An amended writ must be served in the same way as an original writ {The Cas- siopeia, 4P. D. 188). {y) Under this rule if the plaintiff cannot effect "prompt personal service," he may obtain leave either (i) to serve a substitute in lieu of the defendant himself, or (ii), instead of serving the defendant, to give notice, by advertisement or otherwise as the Court may direct. Such leave may be obtained when the defendant absconds or keeps out of the way {Goole v. Sey, 2 Ch. D. 218 ; Sarrison v. Siewardson, 2 Ha. 530 ; Sele v. Ogle, ibid. 623 ; Zulueta v. Vincent, 15 Beav. 272 ; Oope v. Sussell, 2 Ph. 404) ; and substituted service has been allowed where the defendant was not KULES OF THE SUPREME COtTUT, 1883. 3l7 absconding, but residing permanently abroad [Griffiths v. Cowper, 2 De G. E. & J. Ord. IX. 208 ; and see Deanes v. Kitehin, 13 Eq. 461). (z) As to the general principle on wbioh substituted service is allowed, see Sope Substituted V. Sope, 19 Beav. 237 ; 4 De G-. M. & Gr. 328 ; Wolverhampton, ^c. Go. v. Bond, 29 or other "W. E.. 599 ; W. N. (1881), 6. The principle seems to be that the substitute must service, be either («) an authorized agent to receive service, or (3) a person who will be morally certain to communicate the fact of service to the party sought to be served (iJe Slade, 30 W. R. 28 ; Furber v. King (No. 1), 29 W. R. 535). See also Eeald v. Hay, 9 W. R. 369 ; Dicker v. Clarke, 11 W. R. 635. Thus substituted service has been ordered on the agents [Jones v. Cargill, 11 L. T. 566 ; Jackson v. Shanks, 13 W. R. 287 ; Sobhouse v. Courtney, 12 Sim. 140) ; solicitors [Hornby v. Holmes, 4 Ha. 306 ; Hope v. Carnegie, 1 Eq. 126 ; Jiees v. Brailley, 22 L. T. 470 ; Bicker v. Clarke, 11 W. R. 635 ; 9 Jur. N. S. 636 ; Howkina v. Bennett, 1 Gi£E. 213 ; Sidsdale Allanlee V. G. W. Sy. Co., W. N. (1869), 269) ; or attorney [Weymouth v. Lambert, 3 Beav. 333) of the party ; but the Court has refused to order it where the agent or solicitor was not acting in the matter of the suit, and refused to accept the agency [Hurst v. Hurst, 1 De G. & S. 694 ; Webb v. Salmon, 2 Ha. 251 ; and see Furier v. King (No. 1), 29 "W. R. 535 ; Asiatic Banking Co. v. Anderson, 13 L. T. 272) ; and see further as to service on solicitors, Dymond v. Croft, 3 Oh. D. 512 ; Armitage v. Fitz- william, W. N. (1875), 238 ; Waters v. Waters, 24 W. R. 190. Substituted service has been allowed on a general agent [Jones v. Cargill) ; on a solicitor with general power of attorney [Forster v. Menzies, 16 Beav. 568, and see Barker v. Fiele, 11 W. R. 658) ; on the master of a vessel for the owners [Hart v. Herwig, 8 Oh. 860 ; 21 W. R. 663) ; and on a solicitor in spite of his obieotiug to accept it [Governors of Grey Coat Hospital v. Westminster Commissioners, 1 De G. & J. 254). Substituted service may be ordered when the defendant is sued in the name of a Where £rm, and no person having control or management can be found at the place of defendant business [Shillito v. Child f Co., W. N. (1883), 208). sued in name Substituted service has all the effect of personal service ( Watt v. Barnett, 3 of firm. Q. B. D. p. 186). But it can only be had where personal service (if there were not Substituted difficulties in the way) would be possible [Sloman v. Governor of New Zealand, 1 gervice effect C. P. D. 567, where the defendant was a colonial government, and could not, ^f ' therefore, in any case be effectually served with a writ). Service may be ordered to be effected by leaving a copy of the writ at the plaintiff's Service at house, or with his wife, and by advertising ; see Cook v. Sey, 2 Ch. D. 218 ; Bank of defendant's _ Whitehaven r. Thompson, W. N. (1877), 45 ; Capes v. Brewer, W. N. (1875), 193 ; house. 24 W. R. 40 ; and see also Mullows v. Bannister, W. N. (1882), 183. [a) Service may be effected by sending notice through the post, either with or Substitution without an advertisement in addition ; see Ord. IiXVII, r. 6, post ; Rafael v. Ongley, of notice for 34 L. T. 124; Capes v. Brewer; Hamilton v. Davies, W. N. (1880), 82; or notice service, may be ordered to be given by advertisement alone, without any service ( Whitley v. Honeywell, 24 W. R. 851 ; Hartley v. Bilke, 35 L. T. 706 ; Hyde v. Large, 19 Eq. 48) ; "and as to errors in the advertisements, see Jones v. Brandon, Z Jur. N. S. 1146 ; Shepherds. Stone, W. N. (1868), 170. See further, as to substituted service, Grane v. Jullion, 2 Ch. D. 220 ; Meek v. Michaelsen, W. N. (1876), 111 ; Hunt v. Austin, 9 Q. B. D. 598. In a suit against a foreign state substituted service on its minister in England Where may be ordered [Smith v. Weguelin, W. N. (1867), 273). defendant is Where an order has been made and judgment obtained the defendant may stiU be a foreign allowed to come in and defend if a proper case can be shown ( Watt v. Barnett, state. 3 Q. B. D. 183, 366). Leave to An order for substituted service is obtained ex parte either on motion or summons ; defend, and the application must be supported by a proper affidavit. See Ord. X., post, q j.j, f-_ p. 320. The order must be served with the writ ; and it must be stated in the „„i,qtitv,ted order that it is to be served ; and the service must be effected in accordance with the „„__;„„ jj„„ termsof theorder (Daniell, p. 339). obtained Where the order limits no time for appearance, an appearance must be entered within ' eiffht days from service or from the appearance of the advertisements, if any, which- Time for everisthelater(CooAv.2'«y, 2Ch.D. 218; CraneY. Jullion,2Gh..'D.i20). Where appearance, the defendant is out of the jurisdiction the order names the time (Ord. XI. i'. 5, past, p. 322). II. On particular Defendants. 3. When husband and wife are both defendants to the action, they Service on shall both be served unless the Court or a judge shall otherwise ^^^^^^ ^'^^ order (5). (i) As to actions by ar against married women, see Ord. XVI. r. 16, post, p. 338, and notes thereto. 318; Ord. IX. Service on infant. Service on lunatic or person of unsound mind. Service on partners. Service on person carrying on business in name of a firm. Service on corporation aggregate, RULES OP THE SUPREME COURT, 1883. 4. When an infant is a defendant to the action, service on his father or guardian, or if none, then upon the person with whom the infant resides or under whose care he is (c), shall, unless the Court or a judge otherwise orders, be deemed good service on the infant ; provided that the Court or judge may order that service made or to be made on the infant shall be deemed good service. (c) In Christie v. Cameron, i W. R. S89, service on the rector of a college of which the infant was an undergraduate was held suf&cient, the plaintiff being unable to discover where the defendant's father lived. See also /Smith v. Marshall, 2 Atk. 70 ; Thompson v. Jones, 8 Vea. 141 ; Ord. XIII. i'. 1, and note thereto, post, p. 326. As to proceedings by or against infants generally, see Ord. XVI. r. 16, and notes thereto, post, p. 338. 5. When a lunatic or person of unsound mind not so found by inquisition is a defendant to the action, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides or under whose care he is (d), shall, unless the Court or a judge otherwise orders, be deemed good service on such de- fendant. (d) In Than v. Smith, 27 W. R. 617 ; S. C. mm. Thorn v. Smith, W. N. (1879), 81, service was ordered on the keeper of an asylum, in which a person of unsound mind so found but who had no committee, was residing. The keeper of an asylum is bound to allow a writ to be served, and if he hinders the service he wUl be liable to attachment {Denison v. Sardings, W. N. (1867), 17). Service upon the manager of the lunatic's business is bad {Fore Street Co. v. Durrant, 10 Q. B. D. 471 ; 31 W. R. 768). See also Ee Pepper, 50 L. T. 580 ; 32 W. R. 765 ; "W. N. (1884), 141 ; De Montbrun v. Mrseh, 27 Sol. J. 199 ; Ord. XVI. r. 17, post, p. 338. III. On Partners and other Bodies. 6. Where persons are sued as partners in the name of their firm, the writ shall be served either upon any one or more of the partners, or at the principal place within the jurisdiction of the business of the partnership upon any person having at the time of service the control or management of the partnership business there ; and, subject to these rules, such service shall be deemed good service upon the firm. 7. Where one person carrying on business in the name of a firm apparently consisting of more than one person shall be sued in the firm name, the writ may be served at the principal place within the jurisdiction of the business so carried on upon any person having at the time of service the control or management of the business there (e) ; and such service, if sufficient in other respects, shall be deemed good service on the person so sued. (e) See Shillito v. CJnld % Co., W. N. (1883), 208, cited ante, p. 317. where a person residing abroad carries on business in this country, the writ may be served at his place of business under this rule (fi'Neil v. Clason, 46 L. J. Q. B. 191). As to the case of a lunatic, see Fore Street Co. v. Dwrant, 10 Q. B. D. 471 ; 31 W. R. 768, cited in note {d) above. 8. In the absence of any statutory provision regulating service of process, every writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation (/) ; and every RULES OF THE SUPREME COURT, 1883. 319 ■writ of summons issued against the inhabitants of a hundred or other Ord. IX. like district may he served on the high constahles thereof, or any one of them, or, where there is no high constahle, on any other acting chief officer of police of the county in which such hundred or district is situate ; and every writ of summons issued against the inhabitants of any county of any city or town, or the inhabitants of any franchise, liberty, city, town, or place, not being a part of a hundred or other like district, on some peace officer thereof : and where by any statute (y) provision is made for service of any writ of summons, bill, petition, summons, or other process upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or unincorporate, every writ of summons may be served in the manner so provided. (/) A foreign corporation carrying on business in England may be served by Corporations, serving the head officer of the English branch (Newby v. Van Oppen, L. E. 7 Q. B". how served. 293 ; and see Falmer v. Got^d's Co., W. N. (1884), 63). Bat service on a. booking clerk of a Scotch railway company at a station on an English line, over which the company had running powers, was held insufficient {Mac/cereth v. Glasffow Ry. Co., L. R. 8 Ex. 149). Neither a colonial [Sloman v. Governor of New Zealand, 1 C. P. D. 563), nor a foreign {Strousberg v. Republic of Costa Rica, 29 W. R. 12.5) government is a corporation capable of being served with a writ under the above rule. {g) As to statutory provisions, see the Companies Act, 1862, 25 & 26 Vict. u. 89, Statutory s. 62, which provides that any summons, notice, order or other document may be provisions, served upon the company by leaving the same, or sending it by post in a prepaid letter addressed to the company at their registered office. A siniilar provision is contained in the Companies Clauses Act (8 & 9 Vict. c. 16, s. 136), the Lands Clauses Act (8 & 9 Vict. c. 18, s. 134), and the Railways Clauses Act (8 & 9 Vict. 0. 20, s. 138). , Where the business of a company had virtually ceased, but the company had never been dissolved, service was ordered on the late chairman and secretary (GaskeU-•). Cases under (r) This rule is an extension of 15 & 16 Vict. o. 86, s. 49 (now repealed), by 15 & 16 Vict, -which suits were not to be dismissed for misjoinder of plaintiffs, but the Court -was c. 86, s. 49, as to modify its decree according to special circumstances. See Mendes v. Guedalla, to misjoinder. 10 W. R. 485 ; Betta v. Thompson, 6 Ch. 735 ; Umfreville v. Johnson, 10 Ch. 580, ■where two owners of distinct properties joined in a suit to restrain a nuisance ; and see for a similar case, Appleton v. Chapel Town Faper Co., 45 L. J. Ch. 278. Costs where The defendant is entitled to the costs occasioned where a plaintiff's action is plaintiff's defective as to parties, and so is struck out of the paper. See Price v. Berrington, action is 2 Beav. 285 ; Mitchell\. Bailey, 3 Madd. 61 ; Mason v. Franklin, 1 T. & C. Ch. 242, defective as decided under Cons. Ord. XL. r. 21. to parties. Defendants were struck out on their own application, though they had put in a Striking out statement of defence {Vallance y. Birmingham Investment Corporation, 2 Ch. D. 369). and adding See Aberaman Iron Works v. Wickens, 4 Ch. 101. parties! '^'^® Court refused to add parties, on behalf of whom an action was instituted under r. 9, as plaintiffs, in order to make them liable for costs {Be Hart v. Stevenson, 1 Q. B. D. 313). Any one who might have been fairly joined as a defendant under r. 4 may be added [Mdwards v. Lowther, 24 "W. R. 434, where a proprietor of a newspaper was added as a co-defendant with the publisher after issue joined ; and see Honduras By. Co. v. Tucker, 2 Ex. D. 301). In an action for specific perform- ance by a mortgagee selling xmder his power of sale, residuary legatees for whom the mortgagee had been a trustee claimed an interest in the property- ; but a motion to add them as defendants was refused with costs, as their presence was not neces- sary to enable the Court effectually and completely to adjudicate on and settle the questions of title involved in the action [Harry v. Bavey, 2 Ch. D. 721 ; 24 W. R. 676). When a company having a right of action against a former director for breach of trust, assigned its property, &c. (but not the right of action), to a new .EtJLES Of THE SUPBEME COURT, 1883. 337 company, it was held that the new company could not join the diretitors of the old Ord. XVI. company as plaintiffs, and so sue for the breach of trust (Ifeto Westminster Sreioery . ^ r.Bannah, W. N. (1876), 215; W. N. (1877), 35). The Attorney- General was added as informant by amendment {Duke of Sutherland Adding T. Tunsiall Board, 21 "W. E. 244). Attorney- Plaintiffs were added or substituted under the repealed rule (which was sub- General, stantially the same as the present one), in the following- cases -.—Long v. CrossUy, 13 Cases Ch. D. 388 ; Walter v. Smith, 46 L. T. 473. Defendants were added in Bay t. Bad- cliffe, 24 W. R. 844 ; Kino v. Biidkin, 6 Ch. D. 160 ; AshUy v. Tatjlor, 10 Ch. D. 768. Apphoations to add parties were refused in Norris y. Beazley, 2 C. P. D. 80 ; Mills V. Gnffiths, 45 L. J. Q. B. 771 ; Syre v. Morering, W. N. (1884), 58. Fresh parties cannot be added after final judgment {A.-G. v. Corporation of Bir- mingham, 15 Ch. D. 423 ; JTeard v. Borgwardt, W. N. (1883), 173). But subsequent incumbrancers were added in a foreclosure suit after judgment had been pronounced, but before it was passed and entered [Keith v. Butcher, 25 Ch. D. 750). And if the proposed new party consents he maybe added after judgment and issue of the chief clerk's certificate [Re Mason, W. N. (1883), 134, 147). In Seear y. Lawson, 16 Ch. D. 121, a trustee in bankruptcy commenced an action, and then assigned his interest pendente lite. The assignee was ordered to amend the title of the action, and to introduce such averments iato the statement of claim as would disclose his title. Under an order to strike out the name of one defendant, and giving general liberty to amend, the plaintiff may not strike out the name of another defendant [Wymery. Bodds, 11 Ch. D. 436). Where, in an action against a corporation, one of its ofEoers was made a party merely for purposes of discovery, his name was struck out ( Wilson y. Chwch, 9 Ch. D. 552). . The practice has been that if plaintiffs are strueh out after any of the defendants have appeared, the oontiuning plaintiff must give security for costs [Fellowesy. Deere, 3 Beav. 353 ; Drake v. Symes, 3 De G. E. & J. 491). An infant plaintiff, on coming of age, being desirous of retiring from the suit, was made a defendant instead [Bieknelly. Bieknell, 32 Beav. 381). 12. Any application to add or strike out or substitute a plaintiff or Application defendant may be made to the Court or a judge at any time before ^^riSs trial by motion or summons, or at tlie trial of the action in a summary manner («). («) The application is usually made by summons at chambers ( Wilson v. Church, 9 Ch. D. 552) ; it should not be made ex parte (Tildesley y. Sarper, 3 Ch. D. 277 ; but see Ord. 'XVII. r. 4, post, p. 351, and cases there cited). 13. Where a defendant is added or substituted, the plaintiff shall, Service of unless otherwise ordered by the Court or a judge, file an amended copy ^f^g^^ of and sue out a writ of summons, and serve such new defendant with such writ or notice in lieu of service thereof in the same manner as original defendants are served (<). [t) As to consolidated actions, see Be Wortley, 4 Ch. B. 180, which, however, is Consolidated not quite correctly reported. See also Austen v. Bird, W. N. (1881), 129. actions. II. Partners, 14. Any two or more persons claiming or being liable as co-partners Suits by or may sue or be sued in the name of the respective firms, if any, of which nf^ ™n ^ame" such persons were co-partners at the time of the accruing of the cause of firm. of a,ction ; and any party to an action may in such case apply by sum- mons to a judge for a statement of the names of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge may direct. Provided that, in the case of a M. z 338 RULES OP THE SUPREME COURT, 1883, Ord. XVI. Disclosure of names of partners. Suit against individual in name of firm. co-partnersliip wliieli has been dissolved, to the knowledge of the plaintiff, before the commencement of the action, the writ of summons shall be served upon every person sought to be made liable (m). {«) This is a modification of the repealed rule 10 (1875), as to which see Ex parte Toung, 19 Oh. D. 124 ; Ex parte Slain, 12 Oh. D. 522 ; Davisv. Morris, 10 Q. B. D. 436. As to disclosure of the names of the partners, see Fike v. Keene, 24 W. R. 322 ; W. N. (1876), 36. 15. Any person carrying on business in the name of a firm appa- rently consisting of more than one person may be sued in the name of such firm {v). {v) See Ord. IX. r. 7, ante, p. 318, and note thereto. A firm cannot enter an appearance ; see Taylor v. Collier, W. N. (1882), 83. Suits by and against i^ants ; and married women. Next friend of infant. Removal of next friend. Death of next friend. Security for costs from next friend of infant. Next friend bankrupt. Guardian ad litem. Married women. m. Persons under Disability. 16. Infants may sue as plaintiffs by their next friends {to), in the manner heretofore practised in the Chancery Division, and may, in like manner, defend by their guardians appointed for that purpose (a;). Married women may sue and be sued as provided by the Married Women's Property Act, 1882 (y). [w) Any person may commence an action as next friend of an infant, but he thereby renders himself liable for the costs of the suit. As between himself and the infant, however, the next friend will be entitled to his costs of a suit reasonably and properly instituted, even though it fail ; and.in general, as between solicitor and cUeut. See Bligh v. Tredgett, 5'De G. & Sm. 74 ; Cla/yton v. Glarhe, 9 W. R. 718, reversing S. 0. 2 Giff. 575 ; Brown v. Weatherhead, 4 Ha. 122 ; Falmer v. Jones, 22 W.iR. 909 ; Morgan & Wurtzburg on Costs, p. 351, seq. A defendant or other person having any adveise interest to the infant should not be next friend {Lewis v. Nobhs, 8 Ch. D. 591 ; Gee v. Gee, 12 "W. R. 187) ; and may be removed on this ground alone {Re Burgess, 25 Ch. D. 243). In general, the next friend should be some relative or friend, and not a mere volunteer . {Foster v. Cantley, 10 Ha. App. xxiv.) ; a guardian may sue as next friend. If the next friend fail to do his duty, u. g. will not proceed with the suit ( Ward v. Ward, 3 Mer. 706), or appeal when desired to do so {Dupuy v. Welsford, 28 W. R. 762 ; W. N. (1880), 121), he may be removed (Dan. p. Ill) ; but he will first be heard in his own defence {Re Gorsellis, W. N. (1884), 126). On the death of the next friend the nearest paternal relations of the infant are entitled to nominate the new next friend, and the order appointing him need not be supported by any affidavit as to his fitness {Talbot v. Talbot, 17 Eq. 347). Security for costs cannot be required from the next friends of infants (either original or substituted) on the ground of poverty, as the Court is always anxious that questions in which infants are concerned should be brought under its notice, and it has a jurisdiction over suits by infants to stay them if improper {Fellows v. Barratt, 1 Keen, 119 ; Murrell v. Clapham, 8 Sim. 74; Nalder v. Sawhins, 2 My, & K. 243). It was otherwise in the case of married women. As to the effect of a next friend becoming bankrupt, see Wilton v. Kill, 2 De G. M. & G. 807 ; Macann v. Borrodaile, 16 W. R. 175 ; Ex parte Glaxton, 7 Ch. 632. {x) Guardians ad litem for an infant defendant are appointed on the plaintiff's application, if the infant has not appeared, under Ord. XIII. r. 1, ante, p. 326. As to the person who will be appointed, see note (>»), p. 326, ante; when the guardian dies a special application for a new one must be made {Needham v. Smith, 6 Beav. 130). Consents as to procedure may be given by guardians ad litem, see rule 21, post. As to costs of a solicitor appointed guardian ad litem, see Ord. LXV. r. 13, post. {y) As to actions by and against married women, see the Married Women's Pro- perty Act, 1882, ante, p. 192, and notes thereto. Suits by and 17. Where lunatics and persons of unsound mind not so found by fiL^tiM and i^^l^i^itio^ might respectively before the passing of the principal Act RULES OF THE SUPREME COUET, 1883. 339 have sued as plaintiffs or would have teen liable to be sued as defen- Ord. XVI. dants in any action or suit, -they may respectively sue as plaintiffs in persons of any action by their committee or next Mend according to the practice unsound of the Chancery Division, and may in like manner defend any action ™™ by their committees or guardians appointed for that purpose (a). («) In the Chancery Division a lunatic sues hy the committee of his estate, if Lunatic any ; or if none, or none who can sue, by his next friend ; but the committee must plaintiff, obtain the sanction of the Lord Chancellor or Lords Justices before suing (Dan. pp. 117, 118). A lunatic made defendant defends by the committee of his estate, Defendant, ■who, as well as the lunatic, is a necessary party. If he has no committee, or the committee is a plaintiff or other person having an adverse interest, he defends by a guardian ad litem. The committee must obtain the sanction of the Lord Chan- cellor or the Lords Justices before defending (Dan. pp. 181, 182). Persons of unsound mind not so found, and persons incapacitated by age or infir- Persons of mity, sue by a next friend and defend by a guardian ad litem (Dan. pp. 118, 182). unsound mind For recent cases on proceedings by and on behalf of lunatics and persons of unsound or otherwise mind, see Beall v. Smith, 9 Ch. 93 (a very important case) ; Palmer v. Walesby, 3 incapable. Ch. 732 (where the supposed lunatic turned out to be ss,ue) ; Be Edwards, 10 Ch. D. c, 605 (infant ward of Court of unsound mind) ; Wilder v. Figott, 31 W. B. 377 (election) ; Re Marman, 8 Ch. D. 256. The Chancery Division has power, in the adnunistration of the trusts of the property of a person of unsound mind not so found, to give directions for his maintenance, but has no iurisdiction to appoint a guardian of his person {Se Bligh, 12 Ch. D. 364 ; Re Brandon, 13 Ch. D. 773, cor- recting Vane v. Vane, 2 Ch. D. 124). See also Re T., 15 Ch. D. 78. 18. An infant shall not enter an appearance except by his guardian Infant to ad litem. No order for the appointment of such guardian shall be -^ardiaa necessary, but the solicitor applying to enter such appearance, shall ad litem. make and file an affidavit in the Form No. 8 in Appendix A., Part II.-(o), with such variations as circumstances may require. (ff) See this form, post, 576. 19. Every infant served with a petition or notice of motion, or Appearance summons in a matter, shall appear on the hearing thereof by a petition &o. gfuardian ad litem, in all cases in which the appointment of a special guardian is not provided for. No order for the appointnient of such guardian shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last rule men- tioned. 20. Before the name of any person shall be used in any action as Written next friend of any infant, or other party, or as relator, such person next°feiMid or shall sign a written authority to the solicitor for that purpose, and the relator, authority shall be filed in the central office, or in the district registry, if the cause or matter is proceeding therein (5). (i) In a pressing case the authority may be allowed to be filed after the institu- tion of the suit (^.-(7. v. Murray, 13 W. R. 66 ; A.-G. v. Wiltshire, 45 L. J. Ch. 53). 21. In all causes or matters to which any infant or person of Consents as to unsound mind, whether so found by inquisition or not, or person procedure in under any other disability, is a party, any consent as to the mode of sons under taking evidence or as to any other procedure shall, if given with the disability, consent of the Court or a judge by the next friend, guardian, com- mittee, or other person acting on behaU of the person under disability, have the same force and effect as if such party were under no dis- z2 340 ETJLES Ot THE StJPREME COURT, 1883. Ord. XVI. ability and had given sucli consent. Provided that no such consent hy any committee of a lunatic shall be valid as between him and the lunatic unless given with the sanction of the Lord Chancellor or Lords Justices sitting in Lunacy (c). (c) This rule is taken from the General Order, 6th February, 1861, r. 24. See KnatcMmll v. Fowle, 1 Oh. D. 604 ; Fryer v. Wiseman, W. N. (1876), 3 ; 33 L. T. 779; Leeming v. Murray, 28 W. R. 339. Suits by or against paupers. Case to be laid before counsel. Case to be produced to the Court. Court fees. IV. Proceedings hy or against Paupers. 22. Any person may be admitted in the manner heretofore accus- tomed to sue or defend as a pauper on proof that he is not worth 2bl., his wearing apparel and the subject-matter of the cause or matter only excepted {d). (rf) See note (/) to rule 31. 23. A person desirous of suing as a pauper shall lay a case before counsel for his opinion whether or not he has reasonable grounds for proceeding. 24. No person shall be permitted to sue as a pauper unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party, or his solicitor, that the case contains a full and true statement of all the material facts to the best of his knowledge and belief, shall be produced before the Ooxirt or judge or proper officer to whom the application is made, and no fee shaU be payable by a pauper to his counsel or solicitor. 25. A person admitted to sue or defend as a pauper shall not be liable to any Court fee (e). (e) See Thomas v. Ellis, 8 Ch. D. 518. Assignment of counsel or solicitor. Pauper not to give any remuneration. 26. Where a person is admitted to sue or defend as a pauper, the Court or a judge may, if necessary, assign a counsel or solicitor, or both, to assist him, and a counsel or solicitor so assigned shall not be at liberty to refuse his assistance unless he satisfies the Court or judge that he has some good reason for refusing. 27, Whilst a person sues or defends as a pauper no person shall take, or agree to take, or seek to obtain from him any fee, profit, or reward, for the conduct of his business in the Court, and any person who takes, or agrees to take, or seeks to obtain any such fee, profit, or reward shall be guilty of a contempt of Court. Dispaupering. 28.. If any person admitted to sue or defend as a pauper gives, or agrees to give, any such fee, profit or reward, he shall be forthwith dispaupered, and shall not be afterwards admitted again in the same cause to sue or defend as a pauper. 29. No notice of motion shall be served or summons issued, and no petition shall be presented, on behalf of any person admitted to sue or defend as a pauper, except for the discharge of his solicitor, unless it is signed by his solicitor. Notices, &o. to be signed by solicitor. RULES OP THE SUPREME COURT, 1883. 34I 30. It shall be the duty of the solicitor assigned to a person Ord. XVI. admitted to sue or defend as a pauper to take care that no notice No step to be is served, or summons issued, or petition presented, without good taken without cause. ^o""^ "*"««• 31. Costs ordered to be paid to a person admitted to sue or defend Costs. as a pauper shall, unless the Court or a judge shall otherwise direct, be taxed as in other cases (/). _{/) These rules as to pauper suits are taken from Cons. Ord. VII. rr. 8—11, but 25;. is substituted for bl. As to pauper suits generally, see Allen v. McFherson, 5 Beav. 469 ; Davies v. Nixon, 11 W. R. 62; JBird^. Bird, 17 W. R. 155. It was held that the 51. meant 51. available for the suit {Dresser v. Morton, 2 Ph. Suing in 286). Where a person's property was not worth 51. independently of the property form& the subject of the suit, but he was in present possession of that property, he was pauperis. dispaupered (Spencer v. Bryant, 11 Ves. 49 ; Sidgwayy. Edwards, 9 Ch. 143 ; Taprell AfflilavJf V. Taylor, 9 Beav. 493 ; Butler v. Gardener, 12 Bear. 525 ; and see Burry Port Com- ^""'^''"''■ pany v. Bowser, 26 L. J. Ch. 319) ; so was an officer, though his haU-pay was Hable Officer on to be taken through his having passed through the Insolvent Court (Boddington v. half -pay. Woodley, Beav. 555) ; and a person who offered to redeem a mortgage {Fowler v. Mavies, 16 Sim. 182) ; and it was held not enough that he should,swear that he had only 5?. " after payment of his Just debts" {Perry v. Walker, 1 Coll. 229). An executor, though without assets, cannot sue or defend in formd pauperis TrTo/.iitnr Sm {OldJUldy. Cohbett, 1 Ph. 613); secus, where he is also interested as legatee {Bayly '^^^'^^^' "^"i V. Bayly, 11 Beav. 2-56 ; JSuerson v. Matthews, 3 W. R. 159 ; Plattery v. Anderson, 11 Ir. Eq. Rep. 586; Parkinson v. Chambers, 3 W. R. 343; Martin \. Whitmore, 17 W. R. 809 ; Sogers v. Hooper, 1 W. R. 474) ; and in general the same rule applies to all persons filling representative characters {St. Victor v. Bevereux, 6 Beav. 684 ; Paradiee v. Sheppard, 1 Diek. 136). Infants may under special circumstances, it seems, sue by their next friends in Infants formd pauperis {Lindsay v. Tyrrell, 24 Beav. 124 ; 2 De G. & J. 7). 'A peeress was ppp,.po„' a.Amiitedt. to SMe in formd pauperis {WellesleyY. Wellesley, 16 Sim. 1). x-eeiess. The application to sue in formd pauperis should, it seems, be made by ex parte Application motion {Be Lewin, W. N. (1884), 224 ; and see Lindsay v. Tyrrell). ex parte. Counsel and solicitor wiU not be assigned to a defendant under r. 26, upon the Assiffniuw application of the plaintiff {Garrod v. SoUen, 4 Beav. 245 ; see Watkins v. Parker, solicitor and 3 M. & C. 370) ; after they have been assigned the pauper cannot be heard in person pniinnpl {Parkinson v. Hanbury, 4 De G. M. & G. 508). oounaei. A person may appeal in formd pauperis {Bland v. Lamb, 2 J. & W. 402 ; Crouch Appeals and V. Waller, 4 De G. & J. 43 ; Fitton v. Macclesfield, 1 Vern. 263 ; Bradberry v. Brooke, other pro- 4 W. R. 699 ; Grimwood v. Shave, 5 W. R. 482 ; Phillips v. Phillips, 8 Jur. N. S. ceedings in 145; but see Re Johnson, 3 N. R. 655). When an order to sue in formd pauperis formd had been made in the Court below, it was held unnecessary to obtain a fresh order pauperis. to appeal in formd pauperis {Brennan v. Andrew, 1 Ch. 300). So a person may be examined pro inieresse suo in formd pauperis {James v. L)m-e, 2 Dick. 728), or present a petition {Se Money, 13 Beav. 109; Fx parte Sakewell, 3 De G. M. & G. 116) ; or sue as a creditor of a joint-stock company which is being wound up {Fx parte Fry, 1 Dr. & Sm. 318). A party suing in formd pauperis, though unsuccessful, cannot be ordered to pay 'Wlien pauper costs, unless he has been unsuccessful by his own default in proceeding. See Wil- pays costs kinson v. Belcher, 2 Bro. C. C. 272 ; and see also Parkinson v. Hanbury, 4 De G. M. & G. 508. A person who during the pendency of a suit obtains an order to sue or defend in formd pauperis maj be ordered to pay costs up to the date of the order {Prince Albert Y. Strange, 1 3 Jur. 507 ; Smith v. Pawson, 2 De G. & Sm. 490). A party who has obtained the order to sue in formd pauperis must serve notice Costs where thereof on the other side, and if he omits such service, maid fide, i. e., with the in- order not tention of getting dives costs if he succeeds, but paying pauper costs if he faCs, served. he will have to ■pay dives costs in respect of a, step taken in the. suit before such service {Ballard y. Catling, 2 Keen, 606 ; Smith v. Pawson, 2 De G. & Sm. 490). If the order was obtained irregularly, and on suppression of a material ciroum- A party may stance {Nbwelly. Whittaker, 6 Beav. 407) ; or if at any time pending the suit the be dis- party suing or defending in formd pauperis becomes of ability to sue, or to defend paupered on himself, the Court will dispauper him {Perry y. Walker, 1 Coll. 229 ; and see cases becoming in the reporter's note) ; but under certain circumstances he may be re-admitted to sue of ability to or defend in formd pauperis. The mere poBBession, of property, however, is not suf - sue or defend ficient if it is wrongful {Perry v. Walker, 1 T, & Coll, C, C. 676) ; nor will the cif- himself, 342 EULES OF THE STJPEEME COURT, 1883. Ord". XVI. oumstanoe of the pauper having Bued another person at la-w not in formd pauperis {ibid.), or the pauper heing in regular employment {ibid.), be sufficient. If it is made to appear to the Court that the party was not ia fact " a pauper" when he made his affidavit, the order will be discharged vrith costs {Bomilly v. GHnt, 2 Beav. 186 ; and see Goldsmith v. Goldsmith, 6 Hare, 123 ; Mather v. Shelmerdiiie, 7 Beav. 267) ; and a person may be dispaupered, though indebted and embarrassed {Perry v: Walker, 1 Coll. 229 ; Eomiliy v. Grint). The circumstance of a subscription having been made to help the plaintiff in the suit, however objectionable on the ground of maintenance, is no ground for dis- paupering {Corbett v. Corbett, 16 Ves. 409). . • It was held to be too late three years after the order, and after the defendants had answered, and the plaintiff had filed replication, to move to discharge for irregularity an order for the plaintifiE to sue in formd pauperis {Parkinson v. Eanbury, i De Gr. M. & dr. 508 ;■ St. < Victor v. Devereux, 6-Beav«..586). or if he So, if .a, pauper behaves vexatiously in the conduct of. the suit, he may be dis- behaves ■pa.HgeieS^ {Wagner v. Mears, SSim". lilf Daintree v. Hayries, 12 jiir. 594 ; Perry v. Texatiouslj. Walker, 1 CoU. 229) ; but vexatious conduct in a former suit, is no ground for dis- paupering (Gorbett v. Corbett). '-^^ The application to dispauper is made by special motion on notice,^Dan. p. 91. A pauper solicitor may be ordered to pay personally the costs of 'irregular pro- ceedings {Brown v. Dawson, 2 Hog. 76) . " :. Appointment of person to represent heir, next of kin or class. Service dispensed with: — Kesiduary legatees or next of Mn : Legatee interested in. real estate : Residuary devisee or heir: Cestui que trust. V. Administration and Execution of Trusts. 32. In any case in wliich tlie rigM of an heir-at-law or the next of kin or a class shall depend upon the construction which the Court or a judge may put upon an iastrument, and it shall not be known or shall ■he difficult to ascertain who is or are such heir-at-law or next of kin or class, and the Court or judge shall consider that in order to save expense or for some other reason it will he convenient to have the questions of construction determined before such heir-at-law, next of kin or class shall have been ascertained by means of inquiry or other- wise, the Court or judge may appoint some one or more persons to represent such heir-at-law, next of kin or class, and the judgment of the Court or judge in the presence of such persons shall be binding upon the heir-at-law, next of kin or class so represented {g). {g) See Me Peppitt, 4 Ch. D. 230 ; Seton, 1532, for form of order. See also Beale V. Ruston, W. N. (1878), 179. 33. Any residuary legatee or next of kin entitled to a judgment or order for the administration of the personal estate of a deceased person, may have the same without serving the remaining residuary legatees or next of kin. 34. Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, and who may be entitled to a judgment or order for the administration of the estate of a deceased person, may have the same without serving any other legatee or person interested in the proceeds of the estate. 35. Any residuary devisee or heir entitled to the like judgment or order, may have the same without serving any co-residuary devisee or co-heir. 36. Any one of several cestuis que trust under any deed or instru- ment entitled to a judgment or order for the execution of the trusts of the deed or instrument, may have the same without serving any other cestui que trust. EULES OF THE SUPREME COURT, 1883. 343 37. In all oases of actions for the prevention of waste or otherwise Ord. XVI. for the protection of property, one person may sue on behalf of himseU Action by and all persons having the same interest. o°e person 38. Any executor, administrator, or trustee entitled thereto may of'^property°° have a judgment or order against any one legatee, next of kin, or Administra- oestui que trust for the administration of the estate or the execution of *^°^** ^™* the trusts (A). executor, /7\ mu 13... .. . administrator (/t) ihe general administration of an estate cannot be carried on without all the or trustee executors or accounting' trustees being parties {Latch v. Latch, 10 Ch. 464) ; and if *,, '. the legal personal representative of a testator is not made a party to a suit for the executors nj — ^.,^»i. i.,' _r !-_•* 1 __ji II. ■. ,^ ■' ■. ,., , .-, must be an intestate, a general administrator, and not a mere administrator ad litem, is f'5^™i™s™a- a necessary party (Iiowdeswell v . Dowdeswell, 9 Ch. D. 294). See also Seton, p. 812. °^' As to a suit by a creditor against a residuary legatee (who had received assets) without making the surviving executor a party, see Hunter v. Young, 4 Ex. D. 256 ; 27 W. R. 637 ; and see also Ckgg v. Roioland, 3 Eq. 368. 39. The Court or a judge may require any person to he made a Conduct of party to any action or proceeding, and may give the conduct of the motion, action or proceeding to such person as he may think fit, and may make such order in any particular case as he may think just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question (i). (i) This rule is taken from the Chancery Procedure Act, 1852, sect. 42, r. 7. Where two actions are brought for the administration of the same estate, the general rule is that the plaintiff in the first action has the conduct of the proceedings, although the judgnfent is first obtained in the second action (Mellor v. Swire (C. A.), 21 Ch. D. 647; Townsend v. Townsend, 23 Ch. D. 100) ; and see Seton, p. 325; Daniell, p. 1953, where the cases are collected. . If, however, the first suit is not properly constituted the rule will not apply ; see Re McEae, 25 Ch. D. 16, where the creditor of a partnership firm brought an action for administration against the executor of a deceased partner, and then a separate creditor brought a similar action against the executor. Where there is only one action the plaintiff has the conduct of it unless the Court in its discretion gives the conduct to some other party ; see e. g., Allen v. Norris, W. N. (1884), 118, where the conduct of the action was taken away from the plaintiffs, on the ground that they were the acoouiiting parties. 40. "Wherever, in any action for the administration of the estate of Service of a deceased person or the execution of the trusts of any deed or instru- ]"^g™*it or ment, or for the partition or sale of any hereditaments, a judgment or persons in- an order has been pronounced or made — terested. (a.) Under Order XV. ; (b.) Under Order XXXIH. ; (c.) Affecting the rights or interests of persons not parties to the action ; the Court or a judge may direct that any persons interested in the estate or under the trust or in the hereditaments, shall be served with notice of the judgment or order ; and after such notice such persons shall be bound by the proceedings, in the same manner as if they had originally been made parties, and shall be at liberty to attend the pro- ceedings imder the judgment or order. Any person so served may, 344 RULES OP THE SUPREME COURT, 1883. Ord. XVI. within one montli after sucli service, apply to the Court or judge to discharge, vary, or add to the judgment or order {k)> (k) TMs rule is taken from 15 & 16 Viot. c. 86, s. 42, r. 8, and Cons. Ord. XXIII. r. 18, both now repealed. The effect of service of the judgment or order is to hind the interest of the persons served in the subject-matter of the suit, see Doody v. Higgins, 9 Ha., App. xxxii. ; but they cannot be made to account without some independent proceeding to enforce the liability [Walker v. Seligmarm, 12 Eq. 152 ; but see Re Sees, 15 Ch. D. 490) ; nor, on the other hand, can direct relief, e.g., based on wilful default of trustees, be given on their behalf as if they were plaintiffs ( Whitney r. Smith, i Ch. 513). Notice of the judgment or order may, by leave, be served out of the jurisdiction [Strong v. Moore, 22 Ii. J. Ch. 917; Chalmers v. Laurie, 10 Hare, App. xxvii. ; Maybery v. Brooking, 7 De Gr. M. & Gr. 673) ; and see Lee v. Sturroek, W. N", (1876), 226. Where a person served with the decree afterwards married, the proper way to bring the trustees of the marriage settlement before the Court was held to be by service of the decree ( White v. Stewart, 35 Beav. 304) ; but when trustees appointed after decree obtained an order of course to attend the proceedings, it was discharged as irregular [Gc(lye>- v. Colyer, 11 W. R. 356). When persons served with notice of a judgment or order do not attend proceed- ings at chambers, it is not necessary before signing the certificate to serve them with a summons to proceed [Green v. Measures, W. N. (1866), 122). Effect of serving notice of judgment. Service out of jurisdiction. Parties who acquire interest in suit. Persons served may attend without an order on entering an appearance. 41. It shall not he necessary for any person served with notice of any judgment or order, to ohtain an order for liberty to attend the proceedings under such judgment or order, but such person shall be at liberty to attend the proceedings upon entering an appearance in the central ofELce in the same manner, and subject to the same provisions, as a defendant entering an appearance {I). (/) Notwithstanding this rule anyone attending unnecessarily would probably be made to pay all the costs occasioned by such attendance ; see Sharp v. Lush, 10 Ch. D. 468. Entry of memorandum of service. Eorm of notice of judgment. Service on infant or person of unsound mind. Action to execute trusts of will. Court may proceed without representative of deceased person or may appoint one. 42. A memorandum of the service upon any person of notice of the judgment or order in any action under rule 40 shall be entered in the central office upon due proof by affidavit of such service. 43. Notice of a judgment or order served pursuant to rule 40 shall be entitled in the action and there shall be endorsed thereon a memo- randum in the Porni No. 28 in Appendix G. (m). («) Eor this form, see post. 44. Notice of a judgment or order on an infant or person of unsound mind not so found by inquisition shall be served in the same manner as a writ of summons in an action. 45. In any cause or matter to execute the trusts of a will it shall not be necessary to make the heir-at-law a party, but the plaintiff shall be at liberty to make the heir-at-law a party where hfe desires to have the will established against him. 46.- If in any cause, matter, or other proceeding it shall appear to the Court or a judge that any deceased person who was interested in the matter in question has no legal personal representative, the Court or judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent RULES OF THE SUPREME COURT, 1883. 345 Hs estate for all the purposes of tlie cause, matter, or other proceeding Ord. XVI. on such notice to such persons, if any, as the Court or judge shall think fit, either specially or generally by public advertisement, and the order so made, and any order consequent thereon, shall bind the estate of the deceased person in the same manner in every respect as if a duly- constituted legal personal representative of the deceased had been a party to the cause, matter, or proceeding (w). («) This rule is substantially identical with 15 & 16 Vict. 0. 86, a. ii, now 15 & 16 Vict, repealed. It may he presumed, therefore, that the decisions on that section wUl still 0. 86, b. 44 be foUowed by the Courts. and decisions An action for administration is defective when there is no legal personal repre- thereon, sentative before the Court (Rou'sell v. Morris, 17 Eq. 20) except by consent (Jones v. Foul/ces, 10 W. R. 56). See as to administrators ad litem appointed by the Probate Division, Groves v. Levi, 9 Ha. App. xlvii. n. ; Williams v. Allen, 10 W. R. 512, reversing S. C, 32 Beav. 656 ; and 20 & 21 Vict. c. 77 (the Probate Act). The Court will not appoint a person to represent an estate where there is personal responsibility {Fyfe's Case, J7 "W. R. 870) ; and see Devatjnes v. Sobinson, 24 Beav. 86 ; and Williams v. Allen ; nor would the Court order money to be paid out to an administrator ad litem (ibid.) : and it is enacted by the Probate Act, 20 & 21 Vict. 0. 77, a. 70, " that the administrator so appointed shall have all the rights and powers of a general administrator other than the right of distributing the residue of such personal estate.'" The administrator may also be appointed receiver of the rents of real estate (s. 71). By the 73rd section of the same Act, the Court of Probarte may, "whenever it shall appear necessary or convenient by reason of the insolvency of the deceased or other special circumstances," appoint a nominee of its own to be administrator of the personal estate of a deceased person, and " every such adminis- tration may be limited as the Court shall see fit." See He John Jones, 6 W. R. 276. A person may be appointed to represent an heir, or next of kin, or a class, for Appointing the purpose of construing an instrument on which their right may depend ; persons to see Ord. XVI. r. 32, ante, p. 342. represent It was held that the section was not intended to apply to cases (1) Where there estate, is no difficulty in obtaining representation : see long v. Storie, Kay, App. xii. (in jj-jj. j.._ which case V.-C. Wood refused to act behind the back of a person who was on . , __ the point of administering to the estate); Woodhouse v. Woodhome, 8 Eq. 514. ,-,s wfg™ (2) Where the interest of the party sought to be bound is not otherwise represented vL ij. -^ in the suit (Cox v. Stephens, 11 W. R. 929) ; see Gibson v. WilU, 21 Beav. 620 ; ^^inin"- re- Seadden v. Emmott, 22 L. T. O. S. 166, the dicta in which case, however, must be -nresentation' taken with some qualification (see the observations of the Master of the Rolls in -^ ' Dean of Ely v. Gayfoi-d, 16 Beav. 661). So a general representative is required (2) Where when a decree is sought against the very party to be represented, as where a sub- interest of mortgagee sought a decree for foreclosure, without making the personal representa- party to be tives of the first mortgagee parties [Rowlands v. Evans, 33 Beav. 202 ; Sruiton v. bound is not Birch, 22 L. J. Ch. 911) ; the objection wUl not apply, however, when the heir-at- represented ; law and executors named in the will of a deceased person, whose estate may be (3) Where charged by the suit, are parties, though the executors have not proved [Goddard v. general ad- Maslam, 3 W. R. 357) ; comp. Ex parte Cramer, 9 Ha. App. xlvii. ; Williams v. ministration Rowlands, 3 N. R. 233. Nor does the section apply (3) where the object of the jg sought • suit is not only to bind but to administer the estate of the intestate {Silver v. Stein, 1 Drew. 296 ; but see Jones v. Foulkes, 10 W. R. 65) ; see also 20 & 21 Vict. u. 77, (*) ""^.™^ a. 70, supra. In James v. Aston, 2 Jur. N. S. 224 ; Maclean v. Dawson, 27 Beav. 21, administrator the biU was filed to set aside transactions on the ground of fraud of the intestate, 1 j"J, but as the result of such setting aside would have been an administration decree, it ^"i^" have was held that the section did not apply. (4) Nor where a personal representative ^ "^ active, of the intestate would have active duties to perform in the execution of a decree (Fowler v. Bayldon, 9 Ha. App. Ixxviii.) . So the Court will not, under this section, appoint a person to receive a sum of money in Court, payable to a deceased person, though the amount be small [Rawlins v. MoMahon, 1 Drew. 226) ; and even where a representative has been appointed in the suit, it will not direct the money to be paid to him, but will order it to be carried over to a separate account [Byam v. Sutton, 19 Beav. 646). Where one of two trustees died after the chief clerk's certi- ficate, the cause was allowed to proceed in the absence of his representative [Moore V. Morris, 13 Eq. 139). In the last case Lord Romilly, M. R., said the section did not apply (1) Where the estate of the deceased person is that which is being admi- nistered in the suit ; (2) Where the interest of the deceased person is adverse to -346 RULES OF THE SUPEEME COURT, 1883. Ord. XVI. Where the Court wiU act under rule. Where in- testate was insolvent. Refusal of next of kin to administer. Will proved abroad. Claim remote. or identical with that of parties repre- sented. that of the plaintiff ; (3) Where the representative of the deceased person has active duties to perform. Where a necessary party to a suit bad disappeared many years before in Australia, and it was not certain that he was dead, so that his legal personal representative could not be made a party, a representative ad litem to protect his interest was appointed {Mortimer y. Mortimer, 11 W. R. 740). Where there is any difficulty in obtaining representation to the- intestate's estate, and it is not important that his interest should be represented, the Court wiU act under the rule. Thus, where an action was brought by an equitable mortgagee of a policy of insurance against the insurance company, the insured having lEed intes- tate and insolvent, and the mortgage debt exceeding the amount due on the policy, the Court dispensed with a personal representative {Curtius v. Caledonian Insurance Co., 19 Ch. D^ 534 ;-but see Webster v. British Assurance Co., 15 Ch. D. 169). See also Chaffers v. Seadlam, 9 Ha. App. xlvi. ; Cox v. Stephens, 11 W. R. 929. So where there were two executors, co-defendants, and one of them who was also a residuary legatee, but who had not proved the will, or acted in the trusts thereof, died insolvent and without a representative, after the usual order for taking the accounts had been made, it was held that the suit might proceed, as if his legal personal representative had been served and had appeared ; see Sogers v. Jones, 1 Sm. & Gr. 17 ; Da/oies v. Boulcott, 1 Dr. & Sm. 23 ; Ashmall v. Wood, 4 W. R. 60, 110 ; of. Bessant v. Noble, 26 L. J. Oh. 236 ; Band v. Eandle, 2 W. R. 331, where a representative was dispensed with ; Twynam v. Forter, W. N. (1869), 228 ; Hay- ward V. Fyle, 7 Ch. 634. And, as a general rule, the Court, it seems, wiU incline to act under the rule, when the next of kin expressly refuses to administer {Haw v. Viokers, 1 W. R. 242 ; Tarrett v. Lloyd, 2 Jur. N. S. 371) ; or pays no attention to a notice calling upon him to administer {Whiteaves v. Melville, 5 W. R. 676 ; Davies V. Boulcott; see Joint Stock Discount Company v. Brown, 8 Eq. 376) ; or dies without doing so {Swallow v. Binns, 9 Ha. App. xlviii. ; but see 20 & 21 Vict. c. 77, m. 73, ante, under which the Court of Probate may grant limited administration to its own nominee). In a suit for an account of a trading association in India, and contribution, the Court appointed the Indian executor of a deceased associate his representative under the section {Sutherland y. Be Virenne, 2 Jur. N. S. 301). And where a defendant, interested in an estate which was being administered by the Court, died abroad, and Ms executors proved the will abroadbut refused to prove it in this country, the Master of the Rolls (following Hewetson v. Todhimter, 22 L. J. Ch. 76) appointed a representative of the deceased defendant in order that the suit might be revived against him {Bliss y. Futnam, 29 Beav. 20). The section, too, was held to apply where the claiin of the deceased defendant was consequent upon a remote possibility; see Hobbs v. Seid, ~W. N. (1876), 95. So a claim for the appointment of new trustees was allowed to proceed in the absence of a personal representative of a deceased person, when such deceased person had an interest in the trust funds, in the event of the death of his child (the infant plaintiff), but had died indebted, and without any other property {Magnay v. Davidson, 9 Ha. App. Ixxxii.) ; and. a fortiori, when the interests of the deceased defendant are identical with those of the plaintiff, or with those of other parties represented ; see Hewetson v. Todhimter ; Cox v. Taylor, 22 L. J. Oh. 910 ; and Long v. Storie, Kay, App. xii., where a subsequent mort- gagee (one of eight persons standing in a precisely similar situation, and in respect of whose mortgages only one right of redemption was given), having died after a decree for foreclosure, the Court, there being difficulty in obtaining representation to his estate, held that the suit might proceed without any person representing it, see the marginal note ; and comp. Abrey v. Newman, 10 Ha. App. Iviiii., n., where a declaration that children took per capita, and not per stirpes, was made in the absence of the personal representatives of the deceased children ; and see also Tarrett v. Lloyd, 2 Jur. N. S. 371, where on a bill filed for the specific performance of an agreement for a lease entfered into by four defendants in joint tenancy, one of whom died after the suit was instituted, intestate and insolvent, the Court, on the next of kin a"ppearing in Court, and declining to take out administration (see Davies V. Boulcott, 1 Dr. & Sm. 23), ordered a person to be appointed to represent the estate of the deceased person, and Williams v. Allen, 10 W. R. 512, reversing S. C. 29 Beav. 292, where the suit was instituted against a, trustee to make him per- sonally liable for trust funds come into the hands of tenants for life, and the Lords Justices held that the estates of such tenants for life were sufficiently represented by an administrator ad litem. See also Williams on Executors. Where a decree had been made in ignorance of the death of a defendant before decree, a statement was inserted that the Court proceeded in the absence of his per- sonal representative {Sucker v. Schohfleld, 1 N. R. 180). Where a cause was ordered to stand over for want of parties, with liberty to the plaintiff to amend, by adding them or their representatives, a motion that the suit might proceed in the absence of a representative of one of such parties who had died RULES OF THE SUPREME COURT, 1888. 347 without leaving one, -was refused with costs (Williams v. Fage, 27 Beav. 373). In Ord. XVI. Wingrove v. Thompson, H Oh. D. 419, a sole plaintiEE died intestate and insolvent : the Court appointed a person to represent his estate so that the defendant might be able to move to dismiss for want of prosecution. The proper person to be appointed under this rule is the person who would be Who wul and appointed administrator ad litem [Bean of Ely v. Gmjford, 16 Beav. 361). Where a will not be defendant in a suit died and his will was not proved in consequence of a contest as appointed, to one of his testamentary papers, the Court appointed the executor named in his will to represent him (Hele v. Lord Bexley, 16 Beav. 340. Cf . Ashmall v. Wood, 4 W. R. 60). So the executor of a testator who had proved the will in India, but Executor had refused to take out letters of administration in England, was appointed to who proved represent his estate (Sutherland v. De Virenne, 2 Jur. N. S. 301 ; see, too, Sewetson abroad, v. Todhuntet, 22 L. J. Ch. 76). But where a will appointing a person executrix, and giving the testator's estate to her, was being contested in the Probate Court, the Court refused to appoint such person to represent the testator's estate in a suit to take the partnership accounts of a firm of which the testator was a member {Eowlands v. Evans, 33 Beav. 202). In Swallow v. Binns, 9 Ha. App. xlvii., the executors of a father (who had sur- Exeeutors of vived and become the next sole of kin of his deceased children) were appointed to next of kin. represent the estates of his deceased children. In The Lean of Ely v. Gay ford, 16 -^j^g-jy^^ Beav. 561, a widow was appointed to represent the estate of her husband, who was a tenant for life of tithes, and had died without a personal representative. No order can be made wilihout the consent of the person sought to be appointed Consent must (Sill V. Bonner, 26 Beav. 372 ; The Frinee of Wales, ^c. Company v. Falmer, 25 Beav. be given. 605). In a suit instituted to establish a settlement, the Court refused to appoint a person disputing the settlement, and already appointed receiver of the deceased settlor's estate, to represent the settlor [Vacy v. Vacy, 1 L. T. 267). As to the form of the order, see Sele v. Lord Bexley, 15 Beav. 340 ; Whittington Form, &c. of V. Gooding, 10 Ha. App. xxix. ; Setou on Decrees, p. 1531. Before the order is order, drawn up notice should be given to the persons entitled to administer {Davies v. Boulcott, 1 Drew. & Sm. 23) ; but it seems that the order may be made at the hearing (Sewetson v. Todhunter, 22 L. J. Ch. 76 ; Mendes v. Guedalla, 10 W. R. 485). This course was pursued in Lloyd v. Attwood, L. J. Nov. 3, 1858. In Chaffersy. Seadlam, 9 Ha. App. xlvi., it was made on motion on notice to all parties. Where duties were payable and a representative ad litem had been appointed Duties under the section, the Court dispensed with production of letters of administration payable, on evidence that the Commissioners of Inland Revenue would be wiUirg to accept a sum equal to administration duty without the production of an actual grant of letters of administration (Ee Banking, 6 Eq. 601). , The Court cannot appoint a person to represent the possible estate of unborn children under legal limitations (Miles y. Jarvis, W. N. (1883), 203). 47. In any cause or matter for the administration of the estate of a Appearance deceased person, no party other than the executor or administrator against estate shall, unless hy leave of the Court or a judge, he entitled to appear in adm.i- either in Court or in chamhers on the claim of any person not a party aotionsr'"^ to the cause or matter against the estate of the deceased person in respect of any deht or HahiHty (o). The Court or a judge may direct or give Hherty to any other party to the cause or matter to appear, either in addition to or in the place of the executor or administrator, upon such terms as to costs or otherwise as they or he shall think fit. (o) Persons who appear unnecessarily may have to pay all the costs occasioned by their appearance (Sharp v. Lush, 10 Ch. D. 473 ; 27 W. R. 528 ; and see Bowyer v. Marshall, W. N. (1879), 12 ; Ba/g v. Batty, 21 Ch. D. 830). Grenerally speaking, when a claim is brought against the estate m an administra- tion suit the executor or administrator alone should attend (Smith v. Watts, 22 Ch. D. 12). VI. Third Party Procedure. 48. Where a defendant claims to be entitled to contribution, or Where indemnity over against any person not a party to the action, he may, oiaima con- by leave of the Court or a judge, issue a notice (hereinafter called the tribution or 348 RULES OF THE SUPREME COURT, 1883. Ord. XVI. indemnity from third party. Contribution or indemnity. Indemnity. Married woman. Leave. Fourth parties. Where third party disputes plaintiff's claim. third-party notice) to that effect, stamped with the seal with which writs of summons are sealed. A copy of such notice shall he filed with the proper officer, and served on such person according to the rules relating to the service of writs of summons. The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Court or a judge, be served within the time limited for delivering his defence. Such notice may be in the form or to the effect of the Form No. 1 in Appendix B., with such variations as circumstances may require, and therewith shall be served a copy of the statement of claim, or if there be no statement of claim, then a copy of the writ of summons in the action {p). (p) Under the present rules, a third party can he brought in only where the defendant claims contriiution or indemnity ; and this rule prescribes the defendant's course when his claim is against a third person not a party to the action. As to his course when his claim is against a co-defendant, see rule 55, post, p. 350, and the oases there cited. Where a lessor sues his lessee for breach of covenant to repair, the latter cannot bring in a sub-lessee as third party, although the covenant to repair in the under- lease is identical in its terms with that in the lease [Pontifex v. Foord, 12 Q. B. D. 152). See also Catton v. Bennett, 26 Ch. D. 161. Where an action was brought to compel the defendants to register the plaintiff as the owner of certain shares, and the defendants had received notice from a person abroad not to register the plaintiff, as the shares in question had been transferred to him, the Court refused to give leave to serve a third-party notice, doubting if it were a claim for indemnity within the rule {Sutchison v. Colorado Co., W. N. (1884), 40). In Coles v. Civil Service Association, 26 Ch. D. 529, it was held by Kay, J., that the proper order when an indemnity is claimed is this : — If the third party admits his liability to indemnify the defendant, the Court should give him liberty to defend the action. If he does not admit his liability, then the Court should give him liberty to appear at the trial and take such part therf in as the judge shall think proper to allow, and should direct the question as to his liability to indemnify the defendant to be determined immediately after the trial of the action. The third party cannot counter-claim against the original plaintiff [JSden v. Weardale Co., W. N. (1884), 232). See, for a case of indemnity, Finlay v. Scott, W. N. (1884), 8, where the contracts undei: which the plaintiffs claimed against the defendants, and the defendants against the third parties, were identical ; and see also Jacobs v. Srown, W. N. (1884), 23. To entitle a defendant to indemnity under the rule there must be a contract to indemnify [Speller \. Bristol Navigation Co., 13 Q. B. D. 96). A married woman without separate estate cannot be brought in as third party by her husband [Jones v. Elderton, W. N. (1884), 39). But a married woman may be brought in as third party by a stranger, and an order made against her separate estate. See Gloucestershire Banking Co. v. Phillipps, 12 Q. B. I). 533. Leave will be refused if the plaintiff would be prejudiced in his action by its being granted [Associated Some Co. v. Whiehcord, 8 Ch. D. 457 ; Wye Valley Ey. v. JJawes, 16 Ch.D. 489). Notice of the application should be given to the plaintiff (iJirf.). As to the power of a third party to bring in subsequent parties, see YorTtshire Waggon Co. v. Newport Coal Co., 5 Q. B. D. 269 ; Fowler v. Knoop, 36 L. T. 219 ; W. N. (1877), 68 ; Walker v. Balfour, 25 W. R. 511 ; Witham. v. Vane, 28 W. R. 276. 49. If a person not a party to the action, who is served as mentioned in rule 48 (hereinafter called the third party), desires to dispute the plaintiff's claim in the action as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the action within eight days from the service of the notice. In default of his so doing, he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or othervrise, and his own liability to contribute or indemnify, as the case may be, to the extent RULES Of THE SlTpfiEME COUrT, 1883. 849 claimed in the third-party notice. Proyided always, that a person so Ord. XVI. served and failing to appear within the said period of eight days, may S'Pply to the Court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the Court or judge shall think fit. 50. Where a third party mates default in entering an appearance Where third in the action, in case the defendant giving the notice suffer judgment to enter '^^ by default, he shall be entitled at any time, after satisfaction of the appearance judgment against himself, or before such satisfaction by leave of the g^fferfjudg^* Court or a judge, to enter judgment against the third party to the ment by extent of the contribution or indemnity claimed in the third-party ^^^^*- notice : provided that it shall be lawful for the Court or a judge to set aside or vary such judgment upon such terms as may seem just (j). (?) See Jablochkof Co. v. McMurdo, W. N. (1884), 94. 51. "Where a third party makes default in entering an appearance in Where third the action, in case the action is tried and results in favour of the appear and " plaintiff, the judge who tries the action may, at or after the trial, enter plaintiff such judgment as the nature of the case may require, for the defendant giving the notice against the third party : provided that execution thereof be not issued -without leave of the judge until after satisfaction by such defendant of the verdict or judgment against him. And if the action is finally decided in the plaintiff's favour, otherwise than by trial, the Court or a judge may, on application by motion or summons, as the case may be, order such judgment, as the nature of the case may require to be entered for the defendant, giving the notice against the third party at any time after satisfaction by the defendant of the amount recovered by the plaintiff against him. 52. If a third party appears pursuant to the third-party notice, the Application defendant giving the notice may apply to the Court or a judge for f Jj. dkeotion' directions, and the Court or judge, upon the hearing of such application, may, if satisfied that there is a question proper to be tried as to the liability of the third party to make the contribution or indemnity claimed, in whole or in part, order the question of such liability, as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the action, as the Court or judge may direct ; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party (r). (r) Under this rule, judgment against a third party who has appeared pursuant to a third-party notice, but on an application by the defendant for directions declines to state any defence, may be ordered, if the judge is not satisfied that there is any question proper to be tried as to the liability of the third party {Gloucestershire Banking Co. v. FhiUipps, 12 Q. B. D. 533). See also Bell\. DadeUzen, W. N. (1883), 208; Caister v. Chapman, W. N. (1884), 31 ; Borough v. Jmtes, W. N. (1884), 32; and the oases cited in notes to r. 48, ante, p. 348. 53. The Court or a judge upon the hearing of the application men- ^^y ha^*^ tioned in rule 52, may, if it shall appear desirable to do so, give the leave to defend. 350 Ord. XVI. Costs. RULES OP THE SUPREME COURT, 1883. third party liberty to defend the action, upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, documents to be delivered, or amendments to be made, and give such directions as to the Court or judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to vrhich the third party shall be boimd or made liable by the judgment in the action («). («) See MaiiAllisier v. Bishop of Eochester, 5 C. P. D. 194 ; Witham v. Vane,'49 L. J. Ch. 242 ; Schneider v. Batt, 8 Q. B. D. 701 ; The Bianca, 8 P. D. 91 ; CoUs v. Civil Service Association, 26 Ch. D. 529, cited in note [p) to r. 48, ante, p. 348. 54. The Court or a judge may decide all questions of costs, as be- tween a third party and the other parties to the action, and may order any one or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case may require (J). [t] See Jabhchhoff Co. (1884), 108. V. McMurdo, W. N. (1884), 94 ; Bates v. Burchell, W. N. Where defendant claims con- tribution or indemnity against co- defendant. Claim against co-defendant. 55. Where a defendant claims to be entitled to contribution or indemnity against any other defendant to the action (m), a notice may be issued and the same procedure shall be adopted, for the deter- mination of such questions between the defendants as would be issued and taken against such other defendant, if such last-mentioned defendant were a third party; but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the action. {«) Where the claim is against a co-defendant no leave is required hefore issuing the notice ; but of course the defendant may move to discharge the service {Towse\. Loveridge, 25 Ch. D. 76). See also Butler v. Butler, 14 Ch. D. 329 ; Sawyer v. Sawyer, W. N. (1883), 181, 212 ; Floicer v. Todd, W. N. (1884), 47. In Cation v. Bennett, 26 Ch. D. 161, a vendor sued for specific performanCej making the auctioneer who held the deposit a co-defendant. The defence was, that the purchaser had been misled by the auctioneer's advertisement, to which the plaintiff replied, denying the auctioneer's authority to issue the advertisement. Held, that the purchaser could not claim indemnity against his co-defendant, the auctioneer. Proceedings not to abate by marriage, death or bankruptcy, or become defective by devolution of estate. OEDEE XYII. Change of Paeties by Death, &c. 1. A cause or matter shall not become abated by reason of the marriage, death or bankruptcy of any of the parties, if the cause of action survive or continue [v) ; and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite ; and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but judgment may in such case be entered, notwithstanding the death. This order does not alter the law as to what actions do and what do not survive, see Kirh y. Todd, 21 Ch. D. 484. As to the survival of actions, see Phillips v. Bomfray, 24 Ch. D. 439; Kirk v. Todd. BULES OP THE SUPEEME COURT, 1883. 351 (») The rule applies only where the cause of action " survives or continues " in Ord. XVII. some person who is before the Court ; accordingly, where a sole plaintifi becomes bankrupt, the. action is at an end {Sldridgey. Burgess, 7 Ch. D. 411 ; Jackson v. JV. Abatement ^. JJy. Co., 5 Ch. D. 844; see also Zloyd v. Simmac/e, 7 Ch. D. 398; Warder y. of cause or Saunders, 10 Q. B. D. 114 ; Twycross v. Grant, 4 C. P. D. 40). matter. 2. In. case of the marriage, death, or bankruptcy, or devolution ol Husband, &o. estate by operation of law, of any party to a cause or matter, the "party ot^ " Court or a judge m.ay, if it he deemed necessary for the complete served with settlement of all the questions involved, order that the husband, per- ^°*^"^- sonal representative, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice in such manner and form as hereinafter prescribed, and on such terms as the Court or judge shall think just, and shall make such order for the disposal of the cause or matter as may be just {w). («i) On the bankruptcy of a sole plaintiff he cannot continue the action ; if his Bankruptcy, trustee declines to proceed with it, the action may be stayed by a judge at Chambers ; if there are two trustees, and one refuses to go on, the other may have an order to continue, making his co-trustee a defendant : see Jackson v. If. E. Ry. Co., 5 Ch. D. 844 ; Warder v. Saunders, 10 Q. B. D. 114 ; Ec Hopkins, 30 "W. R. 601 . Where the defendant in an action on a biU of exchange became bankrupt, the Court refused to allow the action to proceed against the trustee (Barter v. Buieux, 7 Q. B. D. 413). As to the plaintiff's course when the sole defendant ia a creditor's administration suit dies, pending an application for the appointment of a receiver, see Cash v. Farker, 12 Ch. D. 293. 3. In case of an assignment (;r), creation, or devolution of any Continuation estate or title pendente lite, the cause or matter may be continued by or ? prooeed- against the person to or upon whom such estate or title has come or devolved. [x) See Seear v. Lawson, 16 Ch. D. 121. If a party to a ' foreclosure suit has Assignment assigned his interest after decree, the assignee may be made a party even after the pendente Ute^ order for foreclosure absolute [Campbell v. Holyland, 7 Ch. D. 166). 4. Where by reason of marriage, death, or bankruptcy, or any Order to other event occurring after the commencement of a cause or matter, <'°°i'"'"^- and causing a change or transmission of interest or liability (y), or by reason of any person interested coming into existence after the com- mencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be" carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court or a judge, upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence (z). (y) See Re Goold, W. N. (1884), 185. (2) The order is obtained in Chambers, or by petition of course, or by motion of Order to course (Roffey v. Miller, 24 W. E. 109 ; W. N. (1876), 225 ; Darcy v. Whittaker, continue, how 33 L. T. 178; W. N. (1876), 17; Walker v. Blackmore, W. N. (1876), 112; of. obtained. Crane v. I^ftus, 24 W. E. 93 ; Seton, 1530). An executor who obtains an order to continue, renders himself personally liable Costs. for the costs of the action (Boynton v. Boynton, i App. Oas. 733) ; and see Borne- man V. Wilson, 28 Ch. D. 53 ; Watson v. Solliday, 20 Ch. D. 780 ; 31 W. E. 536, where trustees in bankruptcy of a defendant had to pay the costs. As to the course on the appointment of a new trustee in a bankruptcy, see Fooley's Trustee in Trustee v. Whetham, 28 Ch. D. 38. bankruptcy. 3S2 RtTLES OP THE SUtEEME COtTRT, 1883. Ord. XVII. Death of appellant. Counter- claim. Birth of an infant <.te lite. " Cause or matter." Title of action. Person at- tending pro- ceedings. Service of order to continue. Application to discharge order. Person under disability. Order to proceed. On the death of an appellant his executor may carry on the appeal under the • common order of feviyor {Sanson v. Patton, 17 Ch. D. 767). An order of revivor of the original action obtained by the plainti£E against the representatives of a deceased defendant who had delivered a counterclaim does not authorize them to continue the counterclaim against the plaintiff ; a separate order is necessary {Andrew v. Aitken, 21 Ch. D. 175). After a great lapse of time the right to revive is not absolute, and the Court wUl exercise a discretion as to allowing it; see Curtis v. Sheffield, 20 Ch. D. 398 ; Fussell V. Dowding, 27 Ch. D. 237. Where proceedings have been taken in an action after it has become defective by the birth of an infant who is a necessary party, the infant should be made a party by the common order to carry on proceedings between the continuing parties and the infant ; and the order should go on to direct an inquiry whether any proceedings affecting the interest of the infant have been taken in the action since its birth, and, if so, whether it wUl be fit and proper and for the benefit of the infant that he should be bound thereby ; and if so certified the infant to be bound ac- cordingly. If the inquiry be answered in the negative, the plaintiff or person having the conduct can still proceed by supplemental action {Peter v. Thomas-Peter, 26 Ch. D. 181 ; and see Seton, 1527, Form 3). A petition may of course be ordered to be carried on by an executor ; see, e. g., Pe Atkins, 1 Ch. T). 82 ; Ee Bynevor Co., "W. N. (1878), 199, decided under the rules of 1875. As to altering the title of the action where an order of revivor is obtained, see Miller v. Suddlestone, W. K. (1881), 171 ; 8eear v. Zawson, 16 Ch. D. 121. A person attending the proceedings under an administration judgment may obtain an order to revive {Bursiall v. Fearon, 24 Ch. D. 126). 5. An order obtained as in the last preceding rule mentioned shall, unless the Court or judge shall otherwise direct, he served upon the continuing party or parties, or their solicitors, and also upon each such new party, unless the person mating the application be himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two following rules, be binding on the persons served therewith, and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons. 6. "Where any person who is under no disability or under no disabi- lity other than coverture, or being under any disability other than coverture, but having a guardian ad litem in the cause or matter shall be served with such order as in rule 4 mentioned, such person may apply to the Court or a judge to discharge or vary such order at any time within twelve days from the service thereof. 7. Where any person being under any disability other than cover- ture, and not having a guardian ad litem in the cause or matter, is served with any order as in rule 4 mentioned, such person may apply to the Court or a judge to discharge or vary such order at any time within twelve days from the appointment of a guardian ad litem for such party, and until such period of twelve days shall have expired such order shall have no force or effect as against such last-mentioned person. 8. When the plaintiff or defendant in a cause or matter dies, and the cause of action survives, but the person entitled to proceed fails to proceed, the defendant (or the person against whom the cause or matter may be continued) may apply by summons to compel the plaintiff (or the person entitled to proceed) to proceed within such time as may be ordered ; and in default of such proceeding, judgment may be entered foi' the defendant, or, as the case may be, for the person RULES OF THE SUPREME COURT, 1883. 353 against -whom the cause or matter might have been continued ; and in Ord. XVII. such case, if the plaintiff has died, execution may issue as in the case provided for hy Ord. XLII. r. 23. 9. Where any cause or matter becomes abated or in the case of any Entry of such change of interest as is by this order provided for, the solicitor abatement in tor me plamtitt or person having the conduct of the cause or matter, as the case maybe, shaU certify the fact to the proper officer, who shall cause an entry thereof to be made in the cause-book opposite to the name of such cause or matter (o). (a) This rule is taken from Cons. Ord. XSI. u. 7. 10. Where any cause or matter shall have been standing for one Abated causes year in the cause-book marked as "abated," or standiug over generally, out oi cause- such cause or matter at the expiration of the year shall be struck out ^°°^- of the cause-book (5). (J) This rule is almost identical with Cons. Ord. !KXI. r. 8. Under special cir- cumstances a cause has (by consent) been retained {Brooke v. Todd, 6 Jur. N. S. 664). OEDEE XVni. JoiNDEB OF Causes of Action. 1. Subject to the following rules of this order, the plaintiff may Joinder of imite in the same action several causes of action, but if it appear to the ^^^^ Court or a Judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof (c). (c) Cf. the provisions of Ord. XVI., ante, p. 333. As to alternative claims, see Alternative JBagot V. JEaston, 7 Ch. D. 1 ; Child v. Stenning, 7 Oh. D. 413 ; 11 Ch. D. 82 ; Smith claims. V. Siehardson, 4 C. P. D. 112. Where the cause of action against one defendant is totally disconnected with that against the other defendants except so far as it arises out of au incident in the same transaction there is a misjoinder (Buratall v. Bey f us, 26 Ch. D. 35). 2. No cause of action shall unless by leave of the Court or a judge "What causes be joined with an action for the recovery of land except claims in tefoinedwith respect of mesne profits or arrears of rent or double value in respect action to of the premises claimed, or any part thereof, and damages for breach ^^°°"'^^ ^^ ■ of any contract under which the same or any part thereof are held or for any wrong or injury to the premises claimed {d). {d!) Iieave to join causes of action under this rule must be obtained before the Leave to be writ is issued {Piloher v. Minds, 1 1 Ch. D. 905 ; see, however, Musgrase v. Stevens, obtained W. N. (1881), 163) ; and the rule applies to a counter-claim {Campion v. Preston, before writ 21 Ch. D. 138). issued. A foreclosure action is an action for the recovery of land within the meaning -^hat is an of this rule (Soar v. Loe, W. N. (1884), 241, not following Tauiell v. Slate Co., 3 action for the Ch. D. 629 ; and see Barlock v. Ashberry, 19 Ch. D. 539 ; Seath v. Pugh, 7 App. recovery of Cas. 235 ; 6 Q. B. D. 345; Woodv. Wheater, 22 Ch. D. 281) ; but an action "to jami. establish title to land," not claiming possession, is not {GledhiU v. Hunter, 14 Ch. D. 492, not following Whetstone v. Dewis, 1 Ch. D. 99). M. -4. A 354 RULES OF THE SUPREME COURT, 1883. Ord. XVIII. Leave has been given to join with an action for recovery of land a claim for a receiver {Allen v. Kennett, 2i W. R. 845) ; for administration of personal estate Causes of (Kitehint/ v. Kitching, 24 W. R. 901 ; W. N. (1876), 225 ; Whetstone v. Bewia, 1 action joined Ch. D. 99) ; for delivery up and cancellation of a deed and further relief (Cogh v. with action to Enehmareh, 2 Ch. D. Ill) ; for the conveyance of property vested in the defendant recover land, as trustee (Manisty v. Kenealy, 24 W. R. 918) ; for damages for trespass and assault {Dennis v. Crompton, W. N. (1882), 121). Claims for declaration of title, declaration that a lease was granted under a mistake, recovery of rents and profits, a receiver, and possession may be combined without leave ; see CrledhiU v. Sunter. See also Kendrick v. Soherts, 30 W. R. 366. Claims by trustee in bankruptcy. By or against husband and wife. By or against executor or adminis- trator. Joint and several claims. Proviso as to rr. 4, 5, 6. Order to con- fine the action. Exclusion of causes of action. 3. Claims by a trustee in bankruptcy as sucb. sball not, unless by leave of tbe Court or a judge, be joined witb any claim by him in any otber capacity. 4. Claims by or against husband and wife may be joined with claims by or against either of them separately. 5. Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last- mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator (e). («) See Fadwiole v. Scott, 2 Ch. D. 736. The rule does not apply to counter- claims [Macdonald v. Carington, 4 C. P. D. 28). 6. Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant. 7. The last three preceding rules shall be subject to Eules 1, 8 and 9 of this order. 8. Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of together, may at any time apply to the Court or a judge for an order confining the action to such of the causes of action as may be conveniently disposed of together. 9. If, on the hearing of such application as in the last preceding rule mentioned, it shall appear to the Court or a judge that the causes of action are such as cannot all be conveniently disposed of together, the Court or judge may order any of such causes of action to be excluded, and consequential amendments to be made, and may make such order as to costs as may be just (/). (/) See Smith v. Mchardson, 4 C. P. D. 112. Rules of pleading. Pleading. OEDEE XIX. Pleading Q-enebally. 1. The following rules of pleading shall be used in the High Court of Justice (g). iff) As to the definition of a " pleading,'' see Judicature Act, 1873, s. 100, ante, p. 277. Statement of 2. The plaintiff shall, subject to the provisions of Ord. XX., and at meut of ' su^^ t™6 and in such manner as therein prescribed, deliver to the RULES OF THE SUPREME COURT, 1883. 355 defendant a statement of his claim, and of the relief or remedy to Ord. XIX. whidi he claims to be entitled. The defendant shall, subject to the defence and provisions of Ord. XXI., and at such time and in such manner as reply. therein prescribed, deliver to the plaintiff his defence, set-off, or coimterclaim (if any), and the plaintiJEE shall, subject to the provisions of Ord. XXiii., and at such time and in such manner as therein pre- scribed, deliver his reply (if any) to such defence, set-off, or counter- claim (A). Such statements shall be as brief as the nature of the case will admit, and the taxing officer in adjusting the costs of the action shall at the instance of any party, or may without any request, inquire into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same (i). (A) A plaintiff may reply by traverse or by confession and avoidance, or by both RbdIv oomUnei {Sail v.£ve,iCh.D.3il). ^'' (t) See Davy v. Garrett, 7 Ch. D. 473 ; and see Ord. LXV. r. 27 (20), post. Prolixity. 3. A defendant in an action may set off or set up by way of counter- Set-off and claim against the claims of the plaintiff, any right or claim, whether by'd'e'fend^S. such set-off or counterclaim sound in damages or not, and such set-off or coimterclaim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court or a judge may, on the application of the plaintiff before trial, if in the opinion of the Court or judge such set-off or counterclaim cannot be con- veniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avaU. himself thereof (k). (A) This rule is sufficiently wide to allow a counterclaim to include any case Set-off and raised by way of defence, whether it is or is not connected with, or of the same counterclaim, character as, the plaintiff's claim, and whether it sound in damages or not ; see Gray v. Wei6, 21 Ch. D. 802 ; Beddall v. Maitland, 17 Ch. D. 174 ; see, however. Fella* V. Neptune Insurance Company, 8 C. P. D. 34 ; 28 W. R. 406 ; Macdonald v. Carington, 4 C. P. D. 28. Thus the defendant to an action for an account may counterclaim for damages for arrest under a writ of ne exeat (Lees v. Patterson, 7 Ch. D. 866) ; a claim to enforce a separation deed may be met by a counterclaim for a judicial separation (Besant v. Wood, 12 Ch. D. 606) ; an action for rent by a set-off for the price of goods supplied to the plaintiff, and a, counterclaim for damages and specific performance of an agreement for a lease {Atwood v. Miller, W. N. (1876), 11) ; and see Hodson v. Moehi, 8 Ch. D. 569 ; Suggons v. Tweed, 10 Ch. D. 359). Nor is it essential to a counterclaim that it should show a claim to an amount equalling the plaintiff's claim [Mostyn v. West Mostyn Co., 1 C. P. D. 145) ; and where a defendant is sued by two plaintiffs jointly, he may counterclaim against them separately [Manchester, Sheffield and Lincolnshire Ey. v. BrooJcs, 2 Ex. D. 243). As to a set-off and counterclaim for damages against the assignee of a chose in action for breach of contract by the assignor, see Toting v. Kitchin, 3 Ex. D. 127; Fellas V. Neptune Insurance Co., 5 C. P. D. 34. But a set-off or counterclaim can only be for matters for which an action would Must be for lie : see Faivley v. Eawley, 1 Q. B. D. 460 ; Newell v. National Frovincial Bank, 1 matters for C. P. D. 496 ; Birmingham Estates Co. v. Smith, 13 Ch. D. 506 ; Gathercole v. Smith, which an 17 Ch. D. 4. And though by Judicature Act, 1873, s. 24 (3), the defendant may action would have relief not only against the plaintiff but also against any other person whether a lie. party to the action or not, still in this case the relief sought must (by the words of the section) "relate to or be connected with the original subject of the cause or matter" [Barber v. Blaiberg, 19 Ch. D. 475 ; Fadwick v. Scott, 2 Ch. D. 736) ; and further, no counterclaim can be set up which does not seek relief against the plain- tiff, either separately or jointly with some other person [Furness v. Booth, 4 Ch. D. 686; Harris y. Gamble, 6 Ch. D. 748; Warners. Twining, 24 W. R. 536; Treleven V. Bray, 45 L. J. Ch. 113 ; 1 Ch. D. 176). AA2 356 RULES OP THE SUPREME COURT, 1883. Ord. XIX. Counter- claim is in effect a cross- action. Disallowance of set-off or counter- claim. Revivor. Pacts, not evidence, to be pleaded. Pleadings to be signed. Forms of pleadings. Accordingly, if the defendant claims indemnity or contribution against a third party in which the plaintiff is not interested, and wishes to bring such third party into the action, he must adopt the course pointed out by Ord. XVI. rr. 48 et seg., ante, p. 347 ; but he cannot proceed by way of counterclaim. It is no objection, however, that the third party added by the counterclaim could not have been a party to the plaintiff's original claim ; see Turner v. Sednesford Gas Co., 3 Ex. D. 145. A defendant cannot counterclaim either against the plaintiff or a third party in the alternative {Central African Co. v. Grove, 48 L. J. Ex. 510) ; nor can a third party, brought in hy a counterclaim, counterclaim against the de- fendant who brought him in {Street v. Gover, 2 Q. B. D. 498). Nor can a third party brought in under Ord. XVI. r. 48, counterclaim against the plaintiff {^den V. Weardale Co., W. N. (1884), 232). But a plaintiff, in reply to a defendant's counterclaim, may counterclaim in respect of a cause of action arising at the same time and out of the same transaction as the defendant's counterclaim {Tolee v. Andrews, 8 Q. B. D. 428). A counterclaim is, in effect, a cross action, and therefore a plaintiff by discon- tinuing his action after a counterclaim has been delivered, cannot put an end to it so as to prevent the defendant from enforcing against him the causes of action con- tained ia the counterclaim. See Ord. XXI. r. \&, post, p. 364 ; and see McGovian V. Middleton, 11 Q. B. D. 464 ; overruling Vavasseur V. Krupp, 15 Ch. D. 474, both decided under the Rules of 1875. The Court in its discretion may disallow a set-off or counterclaira ; see, for in- stances, Ord. XXI. r. 15, post, p. 364, and note thereto. In such case, the Court of Appeal will not interfere except under very special circumstances {Suggons v. Tweed, 10 Ch. D. 359). An order to revive the original action against the representatives of a deceased defendant does not authorize them to prosecute a counterclaim {Andrew v. Aitken, 21 Ch. D. 175). As to the difference between set-off and counterclaim, see Gathercole v. Smith, 7 Q. B. D. 626 ; Stooke v. Taylor, 6 Q. B. D. 569. _ • Where there is an agreement to refer the subject-matter of a counterclaim, the counterclaim will be stayed on the application of the plaintiff {Spartali v. Van Soom, W. N. (1884), 32). 4. Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary ; but where pleadings have been settled by counsel or a special pleader they shall be signed by him ; and if not so settled they shall be signed by the solicitor, or by the party if he sues or defends in person (1). {t) In an action to recover land, the statement of claim must show how the plaintiff's title is made out {Philipps v. Philipps, 4 Q. B. D. 127) ; and so in an action on the covenants ia a lease, the plaintiff claiming as assign of the reversion must show how the reversion became vested in him {Bavis v. James, 26 Ch. D. 778). In an action to restrain the obstruction of a right of way, the plaintiff must show whether he claims by prescription or grant, and with reasonable certainty the ter- mini of the way, and its course {Karris v. Jenkins, 22 Ch. D. 481). The rule that evidence is not to be pleaded applies to admissions as well as to other evidence {Davy v. Garrett, 7 Ch. D. 473). 5. The forms in Appendices C, D. and E., when applicable, and where they are not applicable forms of the like character, as near as may be, shall be used for all pleadings, and where such forms are applicable and sufficient any longer forms shall be deemed prolix, and the costs occasioned by such prolixity shall be disallowed to or borne by the party so using the same, as the case may be (m). (m) Por these forms, see infra ; and see as to their use, The Isis, 8 P. D. 227 ; 32 W. R. 171. RULES OF THE SUPREME COURT, 1883. 357 6. In all cases in which the party pleading relies on any mis- Ord. XIX. representation, fraud, breach of trust, wilful default, or undue influ- Particulars of ence, and in all other cases in which particidars may he necessary misrepresen- beyond such as are exemplified in. the forms aforesaid, particulars Restated. ' (with dates and items if necessary) shall be stated in the pleading (ra) ; provided that, if the particulars be of debt, expenses, or damages, and exceed three folios, the fact must be so stated, with a reference to full particulars already delivered or to be delivered with the pleading. («) See Seligmann v. Tomig, W. N. (1884), 93. The plaintifEs sued their agents for an account, alleging fraud in general terms. The defendants denied the charges, and pleaded a settled account. The plaintiffs applied for production of documents. Cotton, L. J., held, affirming Sacon, V.-C, that the plaintifEs were not bound to gire particulars of fraud under this rule before obtaining discovery. Fry, L. J., held, that the allegations of fraud not being sufficient to open a settled account, the allegations ought to be made sufficient before discovery was allowed {Whyte V. Ahrens) 26 Ch. D. 717). 7. A further and better statement of the nature of the claim or Further and defence, or further and better particulars of any matter stated in any Ijetter state- pleading, notice, or written proceeding requiring particidars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just (o). (o) See Seligmann v. Toung, W. N. (1884), 93 ; Blaekie v. Osmaston, ibid. 222. 8. The party at whose instance particulars have been delivered Tiijiefor under a judge's order shall, unless the order otherwise provides, have ^artioullra'^'^ the same length of time for pleading after the delivery of the parti- culars that he had at the return of the summons. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time. 9. Every pleading which shall contain less than ten folios (p) (every Pleadings figure being counted as one word) may be either printed or written, pointed, or partly printed and partly written, and every other pleading, not being a petition or summons, shall be printed. {p) A folio is seventy-two words (Ord. LXV. r. 27 (14), infra). 10. Every pleading or other document required to be delivered to a Pleadings and party, or between parties, shall be delivered in the manner now in use j,ow to™e^ to the solicitor of every party who appears by a solicitor, or to the delivered, party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer (y). (g) See as to this rule generaUy, DymondY. Croft, 3 Ch. D. 512; a, notice of DeUvery by motion may be filed (Dymmd v. Croft; Morton v. Miller, 3 Ch. D. 516). filmg. Filing is unnecessary when personal service has been effected {Whitalcer v. Thurston, W. N. (1876), 232 ; JRenshaw v. Renshaw, W. N. (1880), 7). In the Chancery Division judgments, orders, notices of motion for attachment, and other documents requiring personal service, cannot be filed in default ot appear- ance without an order or leave of a master, and no pleadings or documents can be filed under this rule imless an affidavit of service or an office copy thereof be tirst produced to the officer {C. O. Pr. Rules, post, p. 527). 358 RULES OF THE SUPREME COURT, 1883. "Proper officer.' ' Pleadings to be delivered and marked. Plea of not guilty. Allegations of fact must be specifically denied. Ord. XIX. Where a defendant becomes bankrupt after notice of trial, and an order of revivor is made and served on the trustee, it is not necessary to file the pleadings if the trustee does not appear [Ohorlton v. Dickie, 13 Ch. D. 160). As to the meaning of "proper officer," see Ord. LXXI. r. 1, infra. 11. Every pleading shall be deliyered between parties, and shall be marked on the face with the date of the day on which it is delivered, the reference to the letter and number of the action, the division to which the judge (if any) to whom the action is assigned belongs, the title of the action, and the description of the pleading, and shall be indorsed with the name and place of business of the solicitor and agent, if any, delivering the same, or the name and address of the party delivering the same if he does -not act by a solicitor. 12. Nothing in these rules contained shall ailect the right of any defendant to plead not guilty by statute. And every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had. But if the defendant so plead, he shall not plead any other defence to the same cause of action without the leave of the Court or a judge. 13. Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall - be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition (r). {r) A defendant who by his statement of defence simply "puts the plaintiBEs to proof of the several allegations in their statement of claim," thereby admits the facta alleged in the statement of claim {Harris v. Gamble, 7 Oh. D. 877). See generally as to allegations, admissions, and denials in pleadings, Green y. Seviri, 13 Ch. D. 589 ; CoUette v. Goode, 7 Ch. D. 842 ; Tildesley v. Barper, 10 Oh. D. 393 ; Thorp V. BoUsworth, 3 Oh. D. 637. As to the course when one of several defendants is an infant, see National and Provincial Sank v. Evans, 30 W. R. 177, and Ord. XVI. r. 21, anU, p. 339. 14. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be) ; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading («). {») See Whiting Y. East London Waterworks Co., W. N. (1884), 10. 15. The defendant or plaintiff (as the case may be) must raise by his pleading aU matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and aU such grounds of defence or reply, as the ease may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the pre- ceding pleadings, as for instance, fraud. Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds. Conditions precedent. Matters to be pleaded. RULES OP THE SUPREME COURT, 1883. 359 16. No pleading, not being a petition or summons, shall, except by Ord. XIX. way of amendment, raise any new ground of claim or contain any pi j: „. allegation of fact inconsistent with the previous pleadings of the party and inoou- pleading the same. sistentolaima. 17. It shall not be sufficient for a defendant in his statement of Denials to be defence to deny generally the grounds alleged by the statement of speoifio. claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages (<). («) See Thorp v. Moldsu'orth, 3 Ch. D. 637 ; Syrd v. Nzmn, 5 Ch. D. 781 ; 7 Ch. Denial of D. 284 ; Sarris v. Gamble, 7 Ch. D. 877 ; TildesUy v. Harper, 10 Ch. D. 39.^. allegations. Unless the allegations in the statement of claim are specifically denied the plaintiff may move for judgment as upon an admission of fact in the pleadings (Sutter v. Tregent, 12 Ch. D. 758). This rule does not, it seems, apply to a reply to an ordinary defence unaooom- panied by a counterclaim {Williamson v. Z. ^ N. W. Ey., 12 Ch. D. 787); but where there is a defence and coimterclaim the plaintifi in his reply must deny specifically all the allegations he does not wish to admit [Green v. Sevin, 13 Oh. D. 589 ; Benhow v. Loio, 13 Ch. D. 553). 18. Subject to the last preceding rule, the plaintiff by his reply may Joinder of join issue upon the defence, and each party in his pleading (if any) subsequent to reply may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of facts in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted (m). («) See note to r. 17. See also as to reply, Hall v. Eve, i Ch. D. 341. 19. "When a party in any pleading denies an allegation of fact in Evasive the previous pleading of the opposite party, he must not do so P ^ ^^' evasively, "but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances {v). (») This rule is founded on Cons. Ord. X'V. r. 2. For cases see Thorp v. Holdaworth, 3 Ch. D. 637; Byrd v. Nimn, 5 Ch. D. 711 ; 7 Ch. D. 284 ; Tildeshy V. Harper, 10 Ch. D. 393. 20. When a contract, promise, or agreement is alleged in any Pleading pleading, a bare denial of the same by the opposite party shaU be |^gfffijj^j,°y construed only as a denial in fact of the express contract, promise, or of contract. agreement alleged, or of the matters of fact from which the same may be impHed by law, and not as a denial of the legality or sufficiency in law of such contract, promise, or agreement, whether with reference to the statute of Frauds or otherwise (w). (w) For form of defence setting up the Statute of Frauds, see App. D., sect. 4, infra. See Clark y. Callow, W. N. (1876), 262 ; 46 L. J. Q. B. 53 ; Syrd v. Nmn, 7 Ch. D. 284. 360 RULES OF THE SUPREME COURT, 1883. Ord. XIX. Pleading effect of documents. Pleading malice, &c. Fraud. Pleading notice. Pleading letters, con- versations, &c. Presumptions of law. "Want of form. Striking out unnecessary or scandalous matter. Striking out unnecessary or improper matter. Nothing relevant is scandalous. Affidavits. 21. Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, -without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material. 22. "Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circum- stances from which the same is to be inferred (a;). {x) As to alleging fraud see Davt/ v. Garrett, 7 Ch. D. p. 489 ; WalUngford v. Mutual Society, 5 App. Cas. 685. 23. "Wherever it is material to allege notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, be material. 24. Whenever any contract or any relation between any persons is to be impHed from a series of letters or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative. 25. Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied : (e. g., consideration for a biU of exchange, where the plaintiflE sues only on the bill, and not for the consideration as a substantive ground of claim.) 26. No technical objection shall be raised to any pleading on the ground of any alleged want of form. 27. The Court or a judge may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass, or delay the fair trial of the action {y) ; and may in any such case, if they or he shall think fit, order the costs of the application to be paid as between solicitor and client (z). (y) This rule is substantially the same as Ord. XXVII. r. 1, R. S. 0. 1875. The power thus given to the Court has heen freely exercised ; see for instances Cashin V. Cradock, 3 Ch. D. 376 ; Jilake v. Albion Assurance Society, 45 L. J. C. P. 663 ; Coyle V. Ctimming, 27 W. R. 529 (scandal and irrelevancy) ; Williamson v. Z. % N. W. Ey. Co., 12 Ch. D. 787 ; Seugh v. Chamberlain, 25 "W. R. 742 ; Davy v. Garrett, 7 Ch. D. 473; Smith v. British. Marine Insurance Association, "W. N. (1883), 232 (embarrassing pleadings). The striking out of pleadings is in the discretion of the judge, and the Court of Appeal will only interfere in extreme cases {Davy v. Garrett ; Golding v. Wharton Salt Works, 1 Q. B. D. 374 ; Watson^ v. Soduell, 3 Ch. D. 380). Nothing relevant to the issue (however objectionable in itself) can be scandalous (Christie v. Christie, 8 Ch. 499 ; 21 "W. R. 493 ; Subery v. Grant, 13 Eq. 443 ; 26 li. T. 538 ; Fisher v. Owen, 8 Ch. D. 645). Improper pleadings should be struck out, rather than be left to be dealt with as a question of costs {Watson v. Bodicelt). As to scandalous matter in affidavits, see Ord. XXXVIII. r. ll,;os^ RULES OP THE SUPEEME COURT, 1883. 361 Applications to strike out should be made by summons (Marriott v. Marriott, 26 Ord. XIX. W. R. 416 ; W. N. (1878), 57). («) A party who introduces scandalous matter -will generally he ordered to pay Application the whole costs thereby occasioned as between solicitor and client, including the to strike out. costs of an appeal {Christie v. Christie ; Forester v. Read, 6 Ch. 40 ; 19 W. R. 114 ; p , Rubery v. Grant) ; and see Morgan & Wurtzburg on Costs, p. 36, seq. v^osis. [Rule 28 applies only to actions for damage by collision between vessels, and provides for the filing of a document to be called a Preliminary Act.] OEDER XX. Statement or Claim. 1 . The delivery of statements of claim shall be regulated as Statement of follows :— <=!«■""• (a.) Where the writ is specially indorsed under Ord. III. r. 6, no further statement of claim shall he delivered, but the indorse- ment on the writ shall be deemed to be the statement of claim (a) : {a) As to a further and better statement, see Ord. XIX. r. 7, ante, p. 367. (b.) Subject to the provisions of Ord. XIII. r. 12, as to filing a statement of claim when there is no appearance, no statement of claim need be delivered unless the defendant at the time of entering appearance, or within eight days thereafter, gives notice in writing to the plaintiff or his solicitor that he requires a statement of claim to be delivered (i). {b) In no case where the writ is specially indorsed can the defendant require a statement of claim (ff. v. S., W. N. (1883), 233). (c.) If no statement of claim has been delivered and the defendant gives notice requiring the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the Court or a judge, deliver it within fi.ve weeks from the time of the plaintiff receiving such notice : (d.) The plaiatiff may (except as in (a.) mentioned) deliver a state- ment of claim, either with the writ of summons or notice in lieu of writ of summons, or at any time afterwards either before or after appearance, notwithstanding that the defen- dant may have appeared and not required the delivery of a statement of claim : Provided that in no case where a defen- dant has appeared shall a statement be delivered more than six weeks after the appearance has been entered unless other- wise ordered by the Court or a judge : (e.) "Where the plaintifiE delivers a statement of claim without being required to do so, or the defendant unnecessarily requires such statement, the Court or a judge may make such order as to the costs occasioned thereby as shall be just, if it appears that the delivery of a statement of claim was unnecessary or im- proper. 362 EULES OB" THE SUPREME COUBT, 1883. Ord. XX. Alteration of indoTSement on writ. Place of trial. Eelief to be specifically claimed. Prayer for general relief. Distinct causes of complaint. Stated or settled account. [Rule 2 applies only to Probate actions.] [Rule 3 applies only to Admiralty actions in rem.'] 4. Whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement of the writ. 6. The statement of claim must in aU cases in which it is proposed that the trial should he elsewhere than in Middlesex, show the pro- posed- place of trial. 6. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for general or other relief, which may always he given, as the Court or a judge may think just, to the same extent as if it had been asked for (c). And the same rule shall apply to any counterclaim made, or relief claimed by the defendant, in his defence. («) As to -nrhat may be asked for under a prayer for general relief, see Cargill v. Bower, 10 Ch. D. 608 ; Jervia v. Berridge, 8 Cb. 357. 7. "Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and dis- tinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off, or counterclaim founded upon separate and distinct facts. 8. In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars, but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings. [Rule 9 applies only to Probate actions.] Actions for debt or liquidated demand. Bills of ex- change, &c. Denial of matters of fact. OEDEE XXI. Defence akd Cotjnteeclaim. 1. In actions for a debt or liquidated demand in money comprised in Ord. HI. r. 6, a mere denial of the debt shall be inadmissible {d). " (d) See GopUy v. Jaehsm, W. N. (1884), 39. 2. In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact : e. g., the drawing, making, endorsing, accepting, presenting, or notice of dishonour of the bill or note. 3. In actions comprised in Ord. III. r. 6, classes (A.) and (B.), a defence in denial must deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold or sold and delivered, the defence RULES OP THE SUPREME COURT, 1883. 363 must deny the order or contract, the delivery, or the amount claimed ; Ord. XXI. m an action for money had and received, it must deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff. 4. No denial or defence shall be necessary as to damages claimed or Damages, their amount ; but they shall be deemed to be put in issue in all cases, unless expressly admitted. 5. If either party wishes to deny the right of any other party to Denial of claim as executor, or as trustee whether in bankruptcy or otherwise, charaoterf &o^ or in any representative or other alleged capacity, or the alleged con- stitution of any partnership firm, he shall deny the same specifically. 6. Where a statement of claim is delivered to a defendant he shall Delivery of deliver his defence within ten days from the delivery of the statement where state- of claim, or from the time limited for appearance, whichever shall be ™«?* °f last, unless such time is extended by the Court or a judge. " ^"^ ' 7. A defendant who has appeared in an action, and who has neither Where no received nor required the delivery of a statement of claim, must deliver -oi^T"* ° his defence (if any) at any time within ten days after his appearance, unless such time is extended by the Court or a judge (e). («) See note (j) to next rule. 8. "Where leave has been given to a defendant to defend under Under Ord. Ord. XTV., he shall deliver his defence (if any) within such time as ■^■'■^• shall be limited by the order giving him leave to defend, or if no time is thereby limited then within eight days (/) after the order (g). (/) See Egerton v. Anderson, W. N. (1884), 95. {ff) The time for delivering a statement of defence does not run between the time of the taking out and the hearing of a summons under Ord. XIV. [Hobson v. Monks, W. N. (1884), 8). 9. Where the Court or a judge shall be of opinion that any aUega- Costs ocoa- tions of fact denied or not admitted by the defence ouffht to have been ?'°°™ ^7 •' ° improper admitted, the Court or judge may make such order as shall be just denial of with respect to any extra costs occasioned by their having been denied **<='S' or not admitted (A). (A) As to notice to admit facts, see Ord. XXXII. x. 4, post, p. 395. See also Ord. XIX. 1. 13, ante, p. 358. 10. Where any defendant seeks to rely upon any grounds as sup- Counter- porting a right of counterclaim, he shall, in his statement of defence, '''^'™- state specifically that he does so by way of counterclaim (i"). (i) The defendant must state specifically in his counterclaim the facts upon vehich Counter- he relies for relief {Crowe v. Barnicot, 6 Oh. D. 756 ; HoUoway v. Torh, 25 W. R. claim must 627 ; and see Silhnan v. Mayhew, 24 W. R. 485). But a counterclaim may refer to state facts, statements of fact in the pleadings on which the defendant relies without setting them out in extenso {Birmingham Estates Co. v. Smith, 13 Ch. D. 506). 11., Where a defendant by his defence sets up any coimterolaim Further title which raises questions between himself and the plaintiff along with and coimter- any other persons, he shall add to the title of his defence a further claim. 364 BULES OF THE SUPREME OOUET, 1883. Ord. XXI. Service on third party. Appearance. Keply to counter- claim. Exclusion of counter- claim. Counter- claim not stayed by dis- missal, &c., of action. Defendant may have title similar to the title in a statement of claim setting forth, the names of all the persons who, if such counterclaim were to he enforced hy cross action, would be defendants to such cross action, and shall deliver his statement of defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff (A). {/e} See Ord. XIX. r. 3, and note thereto, ante, p. 355. 12. Where any such person as in the last preceding rule mentioned is not a party to the action, he shaU. be summoned to appear by being served with a copy of the defence, and such service shall be regu- lated by the same rules as are hereinbefore contained with respect to the service of a writ of summons, and every defence so served shall be indorsed in the Porm No. 2 in Appendix B. or to the like effect {I). {!) Until Buoh service no person has a right to be treated as a defendant or to enter an appearance {Fraser v. Cooper Sail % Co., 23 Ch. D. 685). As to service of writs of summons, see Ord. IX., ante, p. 316. For this form, see infra. 13. Any person not a defendant {m) to the action, who is served with a defence and counterclaim as aforesaid, must appeax thereto as if he had been served with a writ of summons to appear in an action. (»») Query, should this be "party ? " 14. Any person named in a defence as a party to a counterclaim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim (n). («) The time is ten days ; see rule B, ante, p. 363. 15. "Where a defendant sets up a counterclaim, if the plaintiff or any other person named in manner aforesaid as party to such counter- claim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, he may at any time before reply apply to the Court or a judge for an order that such counterclaim may be excluded, and the Court or a judge may, on the hearing of such application, make such order as shall be just(o). (o) For instances of counterclaims being excluded, see Naylor v. Farrer, "W. N. (1878), 187 ; 26 W. E. 809 ; Padwiek v. Scott, 2 Ch. D. 736 ; Toumg v. Kitchin, 3 Ex. D. 127 ; Harris v. Gamble, 6 Ch. D. 748. In Suggons v. noeed, 10 Ch. D. 359 ; Sodson V. Mochi, 8 Ch. D. 569 ; and Sear v. Sworder, 4 Ch. D. 476, the application to exclude failed. The application is usually made by motion, but may be made by summons : see Naylor ■V. Farrer; Snggonsy. Tweed. 16. If , in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with. 17. Where in any action a set-off or counterclaim is established as a defence against the plaintiff's claim, the Court or a judge may, if the RULES OF THE SUPREME COURT, 1883. 365 balance is in favour of the defendant, give judgment for the defendant Ord. XXI. for such balance, or may otherwise adjudge to the defendant such judgment for relief as he may be entitled to upon the merits of the case {p). balance found due to him. ip) The " balance " referred to in this rule is the balance which results upon the hearing of the action {Solfe v. Maelaren, 3 Ch. D. 106). As to the costs, where claim and counterclaim are both successful, see Ward v. Morse, 23 Ch. D. 377. [Rule 18 applies only to Probate actions.] 19. In every case in which a party shall plead the general issue, Pleading the intending to give the special matter in evidence by virtue of an Act of Parliament, he shall insert in the margin of his pleading the words " by statute," together with the year of the reign in which the Act of Par- liament on which he relies was passed, and also the chapter and section of such Act, and shall specify whether such Act is public or otherwise ; otherwise such defence shall be taken not to have been pleaded by virtue of any Act of Parliament. 20. No plea or defence shall be pleaded in abatement. Pleas in 21. No defendant in an action for the recovery of land (y) who is in possession by himself or his tenant need plead his title, unless his recover land. defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession, and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff's statement of claim. He may nevertheless rely upon any ground of defence which he can prove except as hereinbefore mentioned. (j) As to what is an action for the recovery of land, see Ord. XVIII. r. 2, and Action for notes thereto, ante, p. 353. This rule adopts the decision in Sanford v. McAnwUy, recovery of 8 App. Cas. 456, decided under R. S. C. 1875. land. Where the defendant relies on an equitable title, he must set out the material facts on which he relies {Suteliffe v. James, 27 W. R. 750). OEDER XXn. Payment into and out or Ootirt and Tender. 1 . Where any action is brought to recover a debt or damages (r), Payment into any defendant may, before or at the time of delivering his defence, or ^jti^ for at any later time by leave of the Court or a judge, pay into Court a debt or sum of money byway of satisfaction, which shall betaken to admit the damages. claim or cause of action in respect of which the payment is made ; or he may, with a defence denying liability (except in actions or counter- claims for Hbel or slander) pay money into Court which shall be subject to the provisions of rule 6 : provided that in an action on a bond under the statute 8 & 9 Will. III. c. 11 («), payment into Court shall be admissible to particular breaches only, and not to the whole action (««). Ir) The rule only appKes to actions for debt or damages strictly so called ; it does " Debt or not apply to an action for an account {Niehoh v. Evens, 22 Ch. D. 611). damages." 366 RULES OF THE SUPBEME COITET, 1883. Ord. XSIl. (a) As to this statute, see Freafon v. Dania, L. R. 8 Ex. 19 ; and see also Ord. XIII. r. 14, ante, p. 330. 8 & 9 'Will. 3, («») As to payment into Conrt without admitting liability, see WTieeler v. United c. 11. Tei^/ione Co., IZQ-B-H. 597. Payment in 2. Payment into Court shall be signified in the defence, and the in defemje. claim or cause of action in satisfaction of which such payment is made shall be specified therein. Tender. 3. With a defence setting up a tender before action, the sum of money alleged to have been tendered must be brought into Court. Payment 4. If the defendant pays money into Court before delivering his before defence, he shall serve upon the plaintiff a notice specifying both the defence. fact that he has paid in such money, and also the claim or cause of action in respect of which such payment has been made. Such notice shall be in the Form No. 3 in Appendix B., with such variations as circum- stances may require (<). {t) For this form, see infra. Payment out 6. In the following cases of payment into Court under this order, of money paid in. ^12.:— (a.) When payment into Court is made before delivery of defence : (b.) When the liability of the defendant, in respect of the claim or cause of action in satisfaction of which the payment into Court is made, is not denied in the defence : (c.) When payment into Court is made with a defence setting up a tender of the sum paid : the money paid into Court shall be paid out to the plaintiff on his request, or to his solicitor on the plaintiff's written authority, unless the Court or a judge shall otherwise order. Payment into g. When the liability of the defendant, in respect of the claim or denial of cause of action in satisfaction of which the payment into Court has liability. been made, is denied in the defence («), the following rules shall apply:— (a.) The plaintiff may accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in, in which case he shall be entitled to have the money paid out to him as hereinafter provided, notwithstanding the defendant's denial of liability, whereupon all further proceedings, in respect of such daim or cause of action, except as to costs shall be stayed ; or the plaintiff may refuse to accept the money in satisfaction and reply accordingly, in which case the money shall remain in Court subject to the provisions hereinafter mentioned : (b.) If the plaintiff accepts the money so paid in, he shall, after service of such notice in the Form No. 4 in Appendix B. as is in rule 7 mentioned, or after delivery of a reply accepting the money, be entitled to have the money paid out to himself on request, or to his solicitor on the plaintiff's written autho- rity, unless the Court or a judge shall otherwise order : RULES OP THE SUPREME COURT, 1883. 367 (e.) n the plaintiff does not accept, in satisfaction of tte claim or Ord. XXII. cause of action in respect of whicli tlie payment into Court has been made, the sum so paid in, but proceeds with the action in respect of such claim or cause of action, or any part thereof, the money shall remain in Court and be subject to the order of the Court or a judge, and shall not be paid out of Court except in pursuance of an order. If the plaintiff proceeds with the action in respect of such claim or cause of action, or any part thereof, and recovers less than the amount paid into Court, the amount paid in shall be applied, so far as is necessary, in satisfaction of the plaintiff's claim, and the balance (if any) shall, under such order, be repaid to the defendant. If the defendant succeeds in respect of such claim or cause of action, the whole amount shall, under such order, be repaid to him. (») See Crosland t. Houlledge, "W. N. (1883), 228, cited in note to next rule. 7. The plaintiff, when payment into Court is made before delivery Acceptance of defence, may within four days after the receipt of notice of such ^satirfa'*^ payment, or when such payment is first signified in a defence, may tion. before reply, accept in satisfaction of the claim or cause of action in respect of which such payment has been made the sum so paid in, in which case he shaU. give notice to the defendant in the Form No. 4 in Appendix B., and shall be at liberty, in case the entire claim or cause of action is thereby satisfied, to tax his costs after the expiration of Costs. four days from the service of such notice, unless the Court or a judge shall otherwise order, and in case of non-payment of the costs within forty-eight hours after such taxation, to sign judgment for his costs so taxed (t»). («) This rule is substantially identical with Ord. XXX. r. 4, R. S. 0. 1876, under Costs, which it was decided that if the plaintiff did not accept the sum paid in, but went on with his action and failed to recover more than that amount, he was entitled to the costs up to the time of payment in, and the defendant was entitled to the sub- sequent costs ; see Suckton v. Higgs, 4 Ex. D. 174 ; 27 W. R. 803 ; Greiton v. Mees, 7 Ch. D. 839 ; 26 W. R. 607 ; see, however, Langridge v. Campbell, 2 Ex. D. 281 ; 25 W. R. 351. See also, as to costs under this rule, Greaves v. Fleming, 4 Q. B. D. 226 ; 27 W. R. 458 ; Broadhunt v. Willey, W. N. (1876), 21. In Mchols v. livens, 22 Ch. D. 611, it was held that the rule did not apply to an action for an account, and that even if the plaintiff accepted, in satisfaction of his whole cause of action, the sum paid in, the Court still had a discretion as to the costs. Where money is paid into Court with a denial of liability, and the plaintiff accepts the sum paid in in satisfaction of his claim, he cannot proceed after four days to tax his costs under rule 7 {Crosland v. Bontledge, W. N. (1883), 228). But see M'll- wraith v. Green, 13 Q. B. D. 897. For this form, see infra. 8. Where money is paid iato Court in two or more actions which Consolidated are consolidated, and the plaintiff proceeds to trial in one, and fails, ^^^^^s- the money paid in and the costs in aU the actions shaU be dealt with under this order in the same manner as in the action tried (w). {w) As to consolidation of actions, see Ord. XLIX. r. 8. 9. A plaintiff may, in answer to a counterclaim, pay money into Payment into Court in 368 EULES OF THE SUPREME COURT, 1883. Ord. XXII. Court, in satisfaction thereof, subject to the like conditions as to costs and otherwise as upon payment into Court by a defendant. [Rule 10 applies only to the Queen's Bench Division.] ans-wer to counter- claim. Payment into Court under an order. Chancery DiTision. Rules relating to f imds in Court. Investment of funds in Court. 11. Money paid into Court under an order of the Court or a judge or certificate of a master or associate shall not be paid out of Court except in pursuance of an order of the Court or a judge : Provided that, -where before the delivery of defence money has been paid into Court by the defendant pursuant to an order under the provisions of Ord. XIV., he may (unless the Court or a judge shall otherwise order) by his pleading appropriate the whole or any part of such money, and any additional payment if necessary, to the whole or any specified portion of the plaintifiE's claim ; and the money so appropriated shall thereupon be deemed to be money paid into Court pursuant to the preceding rules of this order relating to money paid into Court, and shall be subject in all respects thereto. 12. In the Chancery Division, the manner of payment into and out of Court, and the manner in which money in Court shall be dealt with, shall be subject to the rules for the time being in force under the Court of Chancery Funds Act, 1872 (x). (a;) For the present mode of dealing with funds in Court, which differs in many important respects from that formerly in use, see the Supreme Court Funds Rules, 1884, ante, p. 215 et seq. 13. [The first part of this rule relates only to the Queen's Bench Division.] Provided that if any Act shall be passed relating to funds in Court in any division of the Supreme Court, all money so paid into Court shall be subject to such rules as may be made xmder that Act, so far as applicable thereto. [Rnles 14, 16 and 16 apply only to the Queen's Bench Division!] 17. Cash under the control of or subject to the order of the Court may be invested in Bank Stock, East India Stock, Exchequer Bills, and il. 10s. per cent, annuities, and upon mortgage of freehold and copyhold estates respectively in England and "Wales, as well as in Consolidated, Beduced, and New 3Z. per cent, annuities (y). (y) See note to next rule. Application to vary in- vestment. Cash under the control or subject to the 18. Every application for the purpose of the conversion of any stocks, funds, or securities into any other stocks, funds, or securities authorized by the last preceding rule, shall be served upon the trustees thereof, if any, and upon such other persons, if any, as the Court or judge shall think fit (2). (2) This and the preceding rule are adapted with certain alterations from rules 1 and 2 of the General Order of February Ist, 1861, issued under the provisions of 23 & 24 yict. c. 38, s. 10 ; see this section ante, p. 104. In the old rule the wordswere, " Cash under the control of the Court" (omitting the words " or subject to the order ") ; it was held that this meant cash standing in Court in any cause or matter, and included money paid in under the Xiands RULES OF THE SUPREME COURT, 1883. 369 Clauses ConsoUdatlon Act {Ex parte Si. Jo/m's College, 22 Ch. D. 93), or under a Ord. XXII. , order of the r.. •. , . , « money was paid in specified the Oouit. securities in which it was to be invested. "East India Stock " includes New £3J per cent. East India Stock (Hx parte "East India St. John's College). ^ Stock." Gash under the control of the Court is usually invested in consols {Darwin v. nhanD'B nf Darwtn, 17 Jur. 781). The Court will refuse an appUcation for conversion from ^vestment bank amimties into some other of the securities mentioned in the rule if either the whenallowpd tenant for life or remaindermen would suffer unduly by the change (Cockhurn v Feel, 3 De G. E. & ,T. 170 ; 7 Jur. N. S. 810). And it seems that when there are no special ou'cumstances in the case, such as exigencies in the family which make it desirable for the children entitled in remainder that their parents' income should be increased, the appHoation will be refused ; see Be Langford, 2 J. & H 458 ; Se Boyce, 15 W. R. 827. Where there are such special circumstances the Court exercises a liberal discretion {Peillow v. Brookings, 4 L. T. 731, where the tenant for life had a wife and fi.ve children and an income not exceeding 101.) ; and see Equitable Reversionary Interest Soeiety v. Fuller, 1 J. & H. 379 ; Be Price, "W. N. (1872), 159 ; Bishop v. Bishop, 9 "W. E. 549 ; and compare Coheny. Waley,. 9 W. E.. 137. In Mortimer Y. Fieton, 10 Jur. N. S. 83; 12 W. E. 292, it was held that where the primary object of the trusts on which funds are held (in that case the payment of 500^., in lieu of jointure, to the plaintiff) would otherwise be defeated, the Court wUl authorize a change of investments ; and see Fluid v. Fluid, 7 L. T. 590. Where a married woman had a life interest in the fund, and was also entitled absolutely in the event of her having no children, there being little probability of her having children, V.-C. Kindersley allowed an investment in East India Stock {Vidhr V. Farrott, 12 W. E. 976 ; Montefiore v. Guedalla, W. N". (1868), 87). And where an applicant was very poor, the usual provision against receiving three dividends in the year by reason of the change was omitted {Be Ingram, 11 W. E. 980). In Vngless v. TuJ', 9 W. E. 729, the Court made no special declaration in the Liberty to decree, but sanctioned generally investment in real securities, and gave liberty to apply in apply in chambers. A direction as to investments may be inserted in the decree chambers, itself {Zucas v. Budd, 16 W. E. 325 ; W. N. (1868), 24). The costs of an application to vary an investment are generally payable out of Costs of income {Equitable Beversionary Interest Society v. Fuller, 1 J. & H. 379) ; secus, where application, a petition would in any case have been necessary {Be Langford, 2 J. & H. 458). An application for investment of cash under the control of the Court may be made Application by the tenant for life without service on the trustees {Be Adams, W. N. (1868), 58 ; for iuvest- 17 L. T. 641). ment. [Eules 19, 20 and 21 apply only to Admiralty actions.] OEDEE XXni. EePLT AlfD SrBSEQUENT PLEADINGS. 1 . A plaintiff shall deliver his reply, if any, in Admiralty actions Time for within six days, and ia other actions within twenty-one days, after the replv^'^ ° defence or the last of the defences shall have been delivered, unless the time shall be extended by the Court or a judge (a). (a) Where the plaintiff is out of time the Court wHL generally give him time to take the next step on payment of costs {Eaton v. Storer, 22 Ch. D. 91, where the time to reply had already been extended twice). 2. No pleading subsequent to reply other than a Joinder of issue Pleadings shall be pleaded without leave of the Court or a judge, and then shall ^^^"^^^ *° be pleaded only upon such terms as the Court or judge shall think fit(i). (i) The pleadings subsequent to reply would appear to be rejoinder, Burrejoinder, rebutter, and surrebutter (Dan. 374, n. (i) ). M. B B 370 RULES OF THE SUPREME COURT, 1883. Ord. XXIII. Time for delivery of sntseqnent pleadings. Reply to counter- claim. Close of New assign- ment. Grround of defence arising after action brought. Grroimd of defence arising after delivery of defence. Confession of defence arisen after action brought. 3. Subject to the last preceding rule, every pleading subsequent to reply shall be delivered within four days after the delivery of the previous pleading, unless the time shall be extended by the Court or a judge. 4. Where a counterclaim is pleaded, a reply thereto shall be subject to the rules applicable to statements of defence (c). (i!) For the rules relating to statements of defence, see Ord. XXI., ante, p. 362. And see Ord. XXVII. r. 13, and note thereto, post, p. 376. 5. As soon as any party has joined issue upon the preceding pleading of the opposite party simply -without adding any further or other pleading thereto, or has made default as mentioned in Ord. XXYII. r. 13, the pleadings as between such parties shall be deemed to be closed. 6. No new assignment shall be necessary or used. But everything which was formerly alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim, or by way of reply. GEDEE XXIV. Matters abising pending the Action. 1 . Any ground of defence which has arisen after action brought, but before the defendant has delivered his statement of defence, and before the time limited for his doing so has expired, may be raised by the defendant in his statement of defence, either alone or together with other grounds of defence {d). And if, after a statement of defence has been delivered, any ground of defence arises to any set-off or counterclaim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply (e). (i) A plainti£ in his reply to a counterclaim may himself counterclaim in respect of a cause of action accrued after the issue of the writ, but arising at the same tiitte and out of the same transaction as the defendant's counterclaim (ToTce v. Andrews, 8 Q. B. D. 428). (e) Relief can be given on a counterclaim in respect of a cause of action accrued to the defendant subsequently to the issue of the writ in the original action [Beddall V. Maitland, 17 Ch. D. 174 ; but see Original Hartlepool Collieries Go. v. Gibi, 5 Ch. D. 713). See alse JFood v. Goodwin, W. N. (1884), 17. 2. Where any ground of defence arises after the defendant has delivered a statement of defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counterclaim arises after reply, or after the time limited for delivering a reply has expired, the plaintiff may, within eight days after such ground of defence has arisen, or at any subse- quent time by leave of the Court or a judge, deliver a further defence or further reply as the case may be, setting forth the same. 3. Whenever any defendant, in his statement of defence, or iji any further statement of defence as in the last rule mentioned, alleges any ground of defence which has arisen after the commencement of the RULES OF THE SUPREME COURT, 1883. 371 action, the plaintiff may deliver a confession of Buct defence (which Ord. XXIV. confession may be in the Form No. 5 in Appendix B., with such varia- tions as circumstances may require), and may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the Costs. Court or a judge shall, either before or after the delivery of such con- fession, otherwise order (/). (/)_ The plea of an adjudication in bankruptcy four months after service of the ■writ is a " ground of defence which hB,a arisen after the commencement of the action " {Champion v. Foi-mby, 7 Oh. D. 373). See further as to this rule, Fostm- v. Gamgee, 1 Q. B. D. 666 ; Callander v. Hawkins, 2 0. P. D. 592. For this form, see infra. OEDEE XXV. Proceedln-qs nf lieu oe Demueeer. 1. No demurrer shall be allowed (5-). Demurrers ,,.,,,. , abolished. { 1 A corporation sole may be interrogated as if he were a private individual, see Corporation Uaniell, vol. u. p. 1812. ^^^^ A foreign state or power suing as plaintiflE is bound to name a person to give -p '. , , discovery at the instance of an opposite party ; see S^Uic of Costa Eka v. BrlaSger, ^°''^^S^ state, TIT- 7- ■ }l\i ^"^^ ^'"'^^ "f -^»»«'"««ff V-. Wagner, 2 Ch. 582 ; Republic of Feru v. Weguehn 20 Eq. 140 ; Frioleau v. Vnited States, 2 Eq. 659 ; Eepublic of Uheria v. Moye, 1 App. Cas. 139. -x , j- j As to getting discovery from the official liquidator in a winding-up, see Re Con- Official tract Corporation, GoochU Case, 7 Ch. 207 ; Barned^s Banking Co., 2 Ch. 350. Uquidator. As to inquiries from agentg, see Bokkow v. Fisher, 10 Q. B. D. 161 ; Rashothmi t. Ap-niitB Shropshire TTmm Co., 24 Ch. J>. 110. Agents. 6. Any objection to answering any one or more of several inter- Objection to rogatories on the ground that it or tbey is or are scandalous or be teken L*° irrelevant, or not lon&fide for the purpose of the cause or matter, or affidavit in that the matters inquired into are not sufficiently material at that *"^"^'^'^- stage, or on any other ground, may be taken in the affidavit in answer (r). (»•) As to scandal, see Ord. XIX. r. 27, and note thereto, ante, p. 360. Scandal. _ The following cases may be consulted as to the propriety or impropriety of par- j ticular interrogatories : Bade v. Jacobs, 3 Ex. D. 335 (conversations with deceased f-™P''°Pf'^ P" person) ; Johns v. James, 13 Ch. D. 370 (inquiry ae to the truth of allegations in *e™g3,tones. statement of claim) ; Saunders v. Jones, 7 Ch. D. 435 (inquiry as to specific acts of misconduct in action for wrongful dismissal) ; Benbow v. Low, 16 Ch. B. 93 (an attempt to learn the details of the evidence of the other side) ; Lyon v. Tweddell, 13 Ch. B. 375 ; RowcUffe v. Leigh, 6 Ch. D. 256 ; Mansfield v. ChiUerhousc, 4 Ch. D. 82 (inquiry as to irrelevant breach of trust) ; Parker v. Wells, 18 Ch. D. 477 ; Att.-Gen. v. Gaskill, 20 Ch. D. 619 ; Sheward v. Lord Lonsdale, 5 C. P. D. 47. A party may object to answer questions tending to criminate him (Fisher \. Owen, Questions 8 Ch. D. 645; Webb v. Fast, 5 "Ek. D. 108; Lamb t. Munster, 10 Q. B. D. 110; tending to Atthusen v. Labouchere, 3 Q. B. D. 654). criminate. Where a party by his answer claims privilege, the Court will not go behind his answer unless it appears clearly either from the answer itself or some incorporated document that the claim is bad [Lyell v. Kennedy, 27 Ch. D. 1). In an action to recover land the plaintiff is entitled to discovery as to all matters Action to relevant to his own and not to the defendant's case {Lyell v. Kennedy, 8 App. Cas. 217 ; recover land Sorton T. Bott, 2 H. & N. 249 ; 26 L. J. Ex. 267). 7. Any interrogatories may be set aside on the ground that they Setting aside have been exhibited unreasonably or vexatiously (*), or struck out on ™t j^Jt ^ the ground that they are proHx, oppressive, unnecessary, or scandalous ; gatories. and any application for this purpose may be made within seven days after service of the interrogatories {t). {«) As to these words, see Oay v. Labouchere, 4 Q. B. D. p. 207. "Unreason- \f) This rule only applies to cases where inteirogatories should not have been ably or vexa- exhibited at all, and then only where no leave has been obtained to exhibit them ; tiously." the objection that any particular interrogatory is improper must be taken in the affidavit in answer, under r. 6 ; see Melhroy v. Dtmcan, W. N. (1884), 48. C 386 EXILES OP THE SIIPEEME COTJET, 1883. Ord. XXXI. Time for answering. dosta of Extension of time. Form of answer. FoUo. SnfSoiency of answer to be determined on motion or summons. Order for fur- ther answer. AppUoation for further answer. Costs where answer insufficient. 8. Interrogatories shall he answered by affidavit to be filed within ten days, or within such other time as a judge may allow (m). (») A member of a company who has been, interrogated cannot refuse to file his answer until he has been paid his costs, nor wiU the Court make an order for pay- ment of his costs separately from those of the company {Bm'Tieley v. Standard Sis- count Co. 13 Oh. D. 97). For form of order to extend the time, see Weston v. Cofim, W. N. (1869), 74. The application must be supported by afSdavit {Brown v. Zee, 11 Beav. 162). In £i/nff V. Clark, 13 Beav. 92, the time for answering was extended on five successive occasions. 9. An affidavit in answer to interrogatories shall, unless otherwise ordered hy a judge, if exceeding ten folios {v), be printed and shall be in the Form No. 7 in Appendix B. with such variations as circumstances may require. [v) A folio is seventy-two words (Ord. LXV. r. 27 (14) ). As to the discretion of the Court to dispense with the printing of a schedule to the affidavit, see Webb v. Bornford, 46 L.' J. Oh. 288 ; W. N. (1877), 5. For the form here referred to, see post. 10. No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court or a judge on motion or summons {vv)i {m) The duty of the Court under rules 10 and 11 is limited to considering the sufficiency or insufficiency of the answer, i. e., whether the party interrogated has answered that which he has no excuse for not answering ; and only in case of in- sufficiency can it require a further answer [Zyell v. Kennedy,. 27 Ch. D. 1). 11. If any person interrogated omits to answer, or answers insuffi- ciently, the party interrogatiug may apply to the Court or a judge for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by vivd voce examination, as the judge may direct (w). [w) The application should be by summons at chambers {Chesterfield v. Blach, 24 W. E. 783 ; 13 Ch. D. 138, n.), which, in the case of a summons for a further answer, should specify the interrogatories or parts of interrogatories to which a further answer is required {Anstey v. North Wookoieh Co., 11 Ch. D. 439). See also Chwreh v. Perry, 36 L. T. 513; Ashby v. Taylor, 38 L. T. 44. An answer may be ' ' insufficient ' ' by reason of its containing, in addition to the information required, impertinent or otherwise objectionable matter {Peyton v. Marting, L. E. 9 C. P. 9 ; Lyell v. Kennedy, 27 Ch. D. 28 ; and see Furher v. King, 29 W. E. 436). As to the costs occasioned by an insufficient answer, see Litchfield v. Jones, W. N, (1884), 218. Under the old practice whether exceptions were allowed {Newton v. Dimes, 3 Jur. N. S. 583), or overruled {Stent v. Wickens, 5 De G. & Sm. 384), the costs followed the result (comp. Willis v. Childe, 13 Beav. 464) ; and such costs were payable immediately {Tliomas v. JRmolings, 27 Beav. 376). But it was said that they should be asked for by the successful party {Sarp v. Lloyd, 4 K. & J. £8 ; Crossley V. Stewart, 2 N. E. 57). But where an interrogatory included several questions which ought to have been distinct, and exceptions as to such interrogatory were only partly allowed, the defendant had not to pay costs {Jiimgton v. Waite, 15 W. E, 53). Where some exceptions were allowed and others overruled, the costs of those allowed were set off against those overruled {Willis v. Childe; Dally -v. Worhan, 32 Beav. 69). - ' - 1?. Any party may, without filing any affidavit, apply to the Court Order for documents. °^ ^ judge for an order directing any other party to any cause or matter EULES OP THE SUPREME COURT, 1883. 387 to make discovery on oath, of the documents which, are or have been in Ord. XXXI. his possession or power, relating to any matter in question therein. On the hearing of such application the Court or judge may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order, either generally or limited to certain classes of docu- ments, as may, in their or his discretion, be thought fit (a;). (x) An order for discovery of documents may be made against a next friend Against [Miagimonv. Sail, 10 Ch. D. 235 ; but see Se Corsellis, "W. N. (1883), 60 ; 31 W. R. '^liom order 414) ; in a petition of right against the suppliant [Tomline v. The Qicem, i Ex. D. "^^^ ^^ made. 252), but not against the Crown [Thomas v. The Queen, L. R. 10 Q. B. 44) ; and against a third party who has appeared (MaeAllisterv. Bishop of Rochester, 5 0. P. B. 194). See also Re M'Veagh, 1 De G. J. & S. 399 ; Newland v. Steer, 11 Jur. N. S. 596. ' An ofBcial liquidator will not be ordered to make an affidavit as to documents Official except under special circumstances [Re Mutual Society, 22 Ch. D. 714). liquidator. A party who has not obtained an order for discovery of documents cannot get such discovery by means of interrogatories which he has obtained leave to admi- nister [Jacobs V. Great Westehi Ry. Co., W. N. (1884), 33). A plaintiff will in general be entitled to discovery of documents after, but not Time, before, delivery of a statement of claim ; see Cashin v. Craddoclc, 2 Ch. D. 140 ; Davies v. William, 13 Ch. D. 550 ; Union Bank v. Xa/nby, Hid. 239 ; SancocTc v. Guerin, 4 Ex. D. 3 ; Republic of Costa Rica v. Strousberg, 11 Ch. D. 323 ; Phillips v. Fhillips, 40 L. T. 815. Where administration to an intestate's estate had been granted to the solicitor to the Treasury, and subsequently an alleged next of kin instituted a suit and asked discovery as to documents, it was held that the affidavit as to documents need not be made until a, primd faeie case had been made by the plaintiff [Zane v. Gray, 16 Eq. 552). The defendant must make the affidavit, though he insists that he cannot be com- pelled to produce any documents, for the question of liability to production is dis- tinct from the question of sufficiency of affidavit [Ifew British Co. v. Feed, 3 C. P. D. 196 ; Rumbold v. Forteath, 3 K. & J. 44 ; Lazarus v. Monley, 6 Jur. N. S. 1119 ; Nicoll V. Jones, 13 W. R. 451 ; and comp. Taylor v. Rmdell, Cr. & Ph. 104, 111 ; Fortescue v. Fortcscue, 24 W. R. 945) ; see, too, as to the necessity of making the affidavit, Manby v. Bewicke, 27 L. T., 0. S. 55 ; Quin v. Ratclif, 9 W. R. 65 ; San- slip V. Kitton, 1 De Gr. J. & S. 440 ; Evans v. Zouis, L. R. 1 C. P. 656. An affidavit of documents is conclusive against the party seeking discovery unless Affidavit, it can be shown from the affidavit itself, or from the documents referred to in it, how far or from admissions in the pleadings, that it is insufficient, in which case an order conclusive, will be made for a further affidavit, or leave may be obtained to administer in- terrogatories ; but it cannot be shown by a contentious affidavit that the affidavit of documents is insufficient ; see Robinson v. Biulqett, W. N. (1884), 94 ; Jones v. Monte Video Gas Co. (C. A.), 5 Q. B. D. 556; A.-G. v. Fmerson, 10 Q.. B. D. 191 ; Fonsonby v. Sartley, W. N. (1883), 13, 44 ; Compagnie Financihre v. Peruvian Guano Co., 11 Q. B. D. 55. Nor can there be any cross-examination on the affidavit as to documents [Manby v. Bewicke (No. 2), 8 De Gr. M. & Gr. 470 ; Newall v. Telegraph Co., 2 Eq. 756 ; Alcock v. Gill, W. N. (1869), 270). See also, as to insufficiency of the affidavit, Wright v. Pitt, 3 Ch. 809; A.-G. v. Castleford Zoeal Board, 21 W. R. 117 ; Saull v. Broicne, 17 Eq. 402 ; Mel v. Mel, 1 De G. J. & S. 468 ; Westminster Co. V. Clayton, 12 "W. R. 123 ; Bowes v. Fernie, 3 My. & C. 632 ; Minet v. Morgan, 8 Ch. 361. Documents are material to the matters in question in the action if it is not un- What doeu- reasonable to suppose that they may contain information enabling the party seeking ments mate- discovery either to advance his own case or to damage that of his opponent [Com- rial. pagnie Fmanciere v. Pertivian Guano Co., 11 Q,. B. D. 55, where a further affidavit was ordered). Even though a defendant is in contempt for non-complianoe with orders of the Where Court, he is entitled to take any steps required for the purposes of his defence ; and defendant where a defendant being in contempt for not having made an affidavit as to doou- in contempt, ments, applied for an order that the plaintiff should make an affidavit of documents, James, V.-C, held he was entitled to the order, but the affidavit and production by the plaintiff were to be after an affidavit and production by the defendant [Saldane v. Mekford, 7 Eq. 425). C02 388 llULES OP THE SUPREME OOtTBT, 1883. Ord. XXXI. 13. The affidavit, to be made hj a party against whom such order aS Affidavit to " ^^ mentioned in the last preceding rule has been made, shall specify specify doou- which, if any, of the documents therein mentioned he objects to pro- Sriectedtobe '^'^*'®' ^^^ ^* ^^^^ ^® ^^ ^^^ Form No. 8 in Appendix B., with such produced. variations as circumstances may require M, Objections to (y) For the form of the affidavit, see post ; it should be adhered to as far as pos- production. sible {Anon. W. N. (1876), 39) ; and see Woodhatch v. FreelaM, 11 W. E. 398 ; Mansell v. Feeney, 2 J. & H. 320. The grounds of objection to production must be clearly stated in the affidavit [Garchier v. Irvin, 4 Ex. D. 49 ; Webb v. East, 5 Ex. D. 108). As to what is a sufficient description of documents in the affidavit, see Taylor v. fatten, i Q. B. D. 85 ; Inman v. Whitlei/, i Beav. 548 ; Phelps v. Olive, 4 Beav. 599, n. ; Forteacue v. Fortescue, 24 W. K. 945 ; 34 L. T. 847 ; Taylor v. Oliver, W. N. (1876), 241 ; 34 L. T. 902; BewickeT. Graham, 7 Q. B. D. 400. An affidavit of improper length will be ordered to be taken off the file, with costs ( Walker v. Poole, 21»Ch. D. 835, and cases there cited). As to costs of perusing the affidavit, see Betts v. Clemer, 7 Ch. 513. Insufficiency If the affidavit is considered to be informal or insufficient, a summons should be of affidavit. taken out to consider its sufficiency (Daniell, vol. ii. p. 1838 ; Robinson v. Webster, W. N. (1869), 81). Court may order produc- tion of docu- ments. Production of documents. Production for purpose of appeal. Possession of agent. Solicitor's lien. Documents abroad. Where stranger td the suit has possession. or joint interest. 14. It shall be lawful for the Court or a judge, at any time during the pendency of any cause or matter, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the Court or judge shall think right ; and the Court may deal with such documents, when produced, in such manner as shall appear just(z). (z) Production is a matter of right and not a matter in the discretion of the judge, provided, of course, that the documents are not privileged ; see Bustros v. White, 1 Q. B. D. 423 ; Anderson v. Bank of British Columbia, 2 Ch. D. 644. For the principal grounds of objection to discovery or production, see note [n) to rule 1, ante, p. 382 ; and DanieU, vol. ii. p. 1862. An order may be made to produce documents for the purpose of an appeal [Me National Funds Asstirance Co., W. N. (1876), 192). A party must produce relevant documents in the possession of his solicitor or agent, and cannot refuse because the solicitor says they are irrelevant, unless he himseK has inspected them [M'lntosh v. Great Western My. Co., 4 De Gr. M. & G. 544 ; Manby v. BewicJce (3), 8 Tie G-. M. & Gr. 476) ; nor can the solicitor refuse, because he claims his ordinary lien [Loekett v. Carey,. 10 Jur. N. S. 144 ; ESpe v. Ziddell, 7 De Gr. M. & Gr. 331 ; Me Cameron's Coalbrook Company, lb Beav. 1) ; see Me Gregson, 26 Beav. 87; North \. Suber, 29 Beav. 437; Vale\. Oppert, 10 Ch. 340; Belaneyy. Ffrench, 8 Ch. 918 ; and cases, infra, on documents in pavra. If they are the agent's private property, they need not be produced [Cok/er v. Ooh/er, 9 W. B. 452 ; but see Bishop of Winchester v. Bowker, ibid. 404). "Where the documents ordered to be produced are in a foreign country, the party required to produce them must show not only that it would be difficult to obtain them, but that he has tried and failed [Mertens v. Saigh, 11 "W. E. 792) ; and as to documents abroad, see Freeman v. FavrlAe, 3 Mer. 44. Documents in the possession of a stranger to the suit previously to its institution cannot be ordered to be produced in his absence (Burbridge v. Mobinson, 2 M. & Gr* 244 ; see Bovill v. Cowan, 18 W. B. 533) ; and if such person has covenanted to produce the documents for the maintenance and justification of the title of a party to the smt, he cannot be ordered to produce them in a suit hostile to such party [Bethell v. Casson, 1 H. & M. 806) ; but full information must be given as to the nature of such documents. Similarly, where a person, not a party to the suit, has a joint interest in the documents [Fdmonds v. Foley, 30 Beav. 282 ; Ba/yley v. Cass, 10 W. B. 370 ; Ford v. Dolphin, 1 Dr. 222; Zord Fglintony. Lamb, 14 W. B. 170), the documents will be protected {Murray v. Walter, Or. & Ph. 114 ; Kearsley y. Philips, 10 Q. B. D. 465) ; but f uU information must be given in the affidavit {Bovill v. Cou-an, 39 L. J. Ch. 768, and see observations of Lord Cottenham in Taylor v. Mimdell, Cr. & Ph. 104, RULES OP THE SUPREME COURT, 1883. 389 ■^ V'"t, '^^''^> directors of a company could not be ordered to produce documents in Ord. XXSI, ■which other directors had a joint interest {reiiiiei/ v. Goode, 1 Dr. 474 ; Seid v. '■ Zanghis, 1 M. & G. 627; lazarus v. MozUy, 5 Jur. N. S. H20 ; Budley t. Mao- dongall, 7 Ch. 312 ; but of. Flant v. Kendrick, L. E. 10 0. P. 692). And see, for other cases of joint interest, Liddell v. Norton, Kay, App. xi, where the documents Documents had been pawned before the institution of the suit, and the defendant was too poor in pawn. to redeem them ; iJ« Williams, 7 Jur. N. S. 323 ; North v. Suher, 29 Beav. 437. So no order can be made for inspection of documents in the custody of the Court Documents in having jurisdiction in lunacy ( Vivian v. Little, H Q. B. D. 370). custody of a But where a defendanthad in his possession letters written to him by a person Court, not party to the suit, which were admitted to be material, he was compelled to Third party's produce them, though they were marked "private and confidential," and though interest, ttie sender objected to the production {Sopkinson v. lord Burghley, 2 Ch. 447 ; 15 W. R. 543, where Lord Cairns, L. J., said, "the sender of the letter must be supposed to have given an authority to the receiver to use it for every lawful purpose, and it has been held that publication is not such a lawful purpose. But if there can be one purpose more lawful than another, it would be to produce the letter in a court of justice for the furtherance of the ends of justice ") ; . and see Fmkethman v. WTiite, 2 "W. R. 380 ; Zee v. Hammerton, 12 "W. R. 975, where the report of a medical officer of an insurance company being material, had to be produced, though confidential. An undertaking not to use the letters for any Private collateral purpose must be given in such a case {Sopkinson v. Lord Burghley ; letters. Richardson v. Hastings, 7 Beav. 354) ; and generally when the plaintiff obtains an order for production and inspection of documents, he does so u.pon an implied under-, taking not to make public any information so obtained, or to communicate such information to persons not parties to the suit ( Williams v. The Prinee of Wales Asstir- aiiee Co., 23 Beav. 338) ; and, it seems, the Court would grant an injunction to restrain him from so doing {ibid.). See, too, Reynolds v. Godlee, 4 K. & J. 88 ; and Enthoven v. Cobb, 5 De G. & Sm. 595 ; on appeal, 2 De G. M. & G. 632 ; Bowen v. Pearson, 11 W. R. 819 ; Sutchinson v. Glover, I Q. B. D. 138. Where a co-defendant has an interest in the documents scheduled, he should be What inf or- served with the summons to produce {Gresley v. Mousley, 2 K. & J. 288). Even if mation must the Court should hold that there are grounds for not ordering production of the be given as documents on account of a third person's interest therein, still the party must give to protected all the information in his power as to such documents as he has partial possession documents, of, and make discovery of tiieir contents so far as they are material {Tayhry. Rundell, Cr. & Ph. 104 ; Bovill v. Cowan, 15 W. R. 608 ; Clinch v. Financial Corporation, 2 Eq. 271). And as to the expense of getting such information, see Bethell v. Casson, 1 H. & M. 806. As to relevancy, see note {x), supra. It has been doubted whether a document Relating to required only for comparison of handwriting is a relevant document ( Wilson v. matters in Thombury, 17 Eq. 517). question. 15. Every party to a cause or matter sliall be entitled, at any time, Notice to by notice in writing, to give notice to any other party, in wliose ^° ^^0^"^ pleadings or affidavits (a) reference is made to any document, to documents produce sucli document for the inspection of the party giving such '^ig®^^*"^,^ notice, or of his solicitor, and to permit him or them to take copies afadavits. thereof ; and any party not complying with such notice shall not after- wards be at liberty to put any such document in evidence on his behalf in such cause or matter, unless he shall satisfy the Court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court or judge shall deem sufficient for not complying with such notice : in which case the Court or jud^e may allow the same to be put in evidence on such terms as to costs and otherwise as the Court or judge shall think fit {V). {a) These words include particulars of claim (Cass V. Ji^sraZf?, W. N. (1884), 18). "Pleadingsor (*) Under this rule production wiU be ordered at once of documents referred to in affidavits." the pleadings, unless some good reason against it can be shown ; see Quilter v, SeatVy, 23 Ch. D. 42 ; Webster v. Whewall, 15 Ch. D. 120. The privilege claimed for documents is not lost by their being referred to in the pleadings ; the penalty 390 RULES OP THE SUPREME COURT, 1883. Ord. XXXI. Costs. Form of notice. Time and place for inspection. Books. Eorm. Order for inspection. Inspection iy agent. for non-production is that ttey cannot afterwards be used in evidence {Roberts v. . Oppenheim, 26 Oh. D. 724). No costs of a notice or inspection under this rule mil be aUowed unless there was good reason for it (Ord. LXV. r. 27 (17) ). 16. Notice to any party to produce any documents referred to in Ms pleading or affidavits shall be in tlie Form No. 9 in Appendix B., witli sucli variations as circumstances may require (c). (c) For this form, see post. 17. The party to -whom such notice is given shall, -within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in rule 13, or if any of the documents referred to in such notice have not been set forth by him. in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of bankers' books, or other books of account, or books in constant use for the pTirposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground {d). Such notice shall be in the Form No. 10 in Appendix B., with such variations as circumstances may require (e). {d) This provision as to books in use in business merely adopts the old practice in Chancery ; see Mertms v. HaigJi, Johns. 735 ; Hooper v. Crumm, 2 J. & H. 602. As to costs where documents are produced at the solicitor's office, see Brown v. Sewell, 16 Ch. T>. 517. («) For this form, see post. 18. If the party served with notice under rule 17 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, the judge may, on the application of the party desiring it, make an order for inspection in such place and in such manner as he may think fit ; and, except in the case of documents referred to in the pleadings or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, such appHeation shall be founded upon an affidavit showing of what documents inspection is sought, that the party apply- ing is entitled to inspect them, and that they are in- the possession or power of the other party (/). (/) If the defendant is required to produce or obtain information as to deeds, &c., not in his possession, he is entitled to have the costs of so doing first tendered to him {Bethell v. Casson, 1 H. & M. 806) ; see note to r. 14, mte. A plaintiff who obtains the common order for production may inspect documents which are ordinarily produced only on payment of customary fees (e. g., court rolls), without payment of such fees [Soa/re v. Wilson, 4 Eq. 1). The order gives liberty to inspect to "the applicant, his solicitor and agent:" Seton, p. 136. So an undertaking to produce ' ' to the plaintiff, " means " to the plaintiff, his soli- citors and agents," unless that be guarded against by the terms of the undertaking {Williams v. Frince of Wales Asswrance Compamy, 23 Beav. 338) ; but neither it nor the common order authorises inspection by a non-professional rdative of the plaintiff, though alleged to be the only person acquainted with the accounts to be inspected RULES OF THE SUPREME COURT, 1883. 39I i^SummerJieU v. Pritchard, 17 Beav. 9). The plaintiff's agent, for the purposes of Ord. XXXI. inspection, ought, it seems, to be a Ugal agent, or at least a general agent, and not one '- appointed for the special purpose {Draper t. Manchester, ^c. Raikoay Company, 3 De But on a special appHoation, and on a special case being made out for it, an accountant may be allowed to inspect documents {Bonnardet v. Taylor, IJ. & H. 383) ; but not an accountant who has any personal interest in the case {Draper v. Manchester, #c. Itaihvay);'aee, however, Lindsay y. Gladstone, 3 Eq. 132; Att.- Gen.y. Whitioood Local Board, 19 W. R. 1107. Thus, in Be Joint Stock Discount Company, 15 W. R. 99, an accountant was allowed to inspect the books of a company in course of being wound up on behalf of the shareholders on certain conditions ; and where the issue in a cause depended in a great measure upon the state of the originals of certain engineer- ing plans and documents, and the defendant deposed that he was not-possessed of any engineering knowledge, and that the inspection of the documents would be useless to him without the aid and assistance of an engineer, the order for production and inspection was directed to extend to the defendant's surveyor {Swansea Vale Bailway Company y. Budd, 2 Eq. 274). In Bepublic of Feruv. Weguelin, 41 L. J. Ch. 165, where the documents were very numerous, a room was hired and special directions given as to inspection. Where a creditor supported his claim in chambers by the production of certain documents which the plaintifi believed to be forged, liberty was given to have them examined by scientific persons to test their genuine- ness, the creditor's solicitor being allowed to be present at such ex^amination {Groves V. Groves, Kay, App. xix. ; ^ W. R. 86) ; but it is only under special eireiimstances that an order will be made for inspection by intended witnesses {Boyd v. Betrie, 3 Ch. 818). The common order for production does not authorise inspection by a co-defen- dant {Bartley v. Bartley, 1 Dr. 233). Inspection by plaintiff's counsel was allowed in Blair v. Massey, I. R. 5 Eq. 623. The fact that an order has been made for production of documents at a particular place, does not prevent the Court making a fresh order appointing a different place if circumstances render it desirable {Brestney v. Corporation of Colchester, 24 Ch. D. 376). No lien for costs attaches, even in favour of the next friend of an infant No lien for plaintiff, who has repudiated the suit, upon any deed brought in merely to enable costs on deeds the plaintiOf to obtain inspection for the purposes of discovery {Dunn v. Dunn, produced. 3 Drew. 17 ; 7 De Gr. M. & Gr. 635) . As soon, therefore, as the purposes of discovery are answered, the deed wUl be ordered to be re-delivered to the producing party {Hid.). The order for production will give leave to seal up immaterial parts {Mansell v. Sealing up Feeney (2), 2 J. & H. 320 ; Seugh v. Garrett, 32 L. T. 45 ; Quilter v, Seatly, 23 Ch. irrelevant D. 42) ; and where defendants ordered to produce had omitted to state their desire parts, to seal up part of a book in their original affidavit, they were allowed to make a » special application for leave to do so by summons without paying the costs thereof {Talbot T. Marshfleld, I 'E(i.&). A party under such order is justified in makiag copies, &c., of all parts of the document produced not sealed up under the terms of the order {Coleman v. West Sartlepool Sarhow Company, 5 L. T. 266). As to the course where the parts of a document for which privilege is claimed are so interspersed with the rest of the document that sealing up would be impossible, see Ghnrton v. Frewin, 2 Dr. & S. 394 ; Ketilewell v. Barstoiv, 7 Ch. 686. As to production of partnership books, see Re Pickering, 25 Ch. D. 247, where it Partnership was held that as the plaintiff and defendant were both interested in the partnership books. property the defendant was not entitled to the ordinary power to seal up such entries as he might swear to be irrelevant, but only entries relating to certain specified private matters mentioned in the order. 19. An order upon the lord of a manor to allow limited inspection Inspection of of the Court roUs may be made on the application of a copyhold tenant Court rolls supported hy an affidavit that he has applied for inspection, and that the same has been refused {g). {g) Where an order for production has been obtained the tenant is entitled to Fees. inspection without payment of the customary fees {Soare v. Wilson, 4 Eq. 1). As to production of Coijit rolls of a manor, see Warrielc v. Quern's College, 3 Eq. 683). 20. If the party from whom discovery of any kind or inspection is Determina- - sought objects to the same, or any part thereof, the Court or a judge ^°^ °* 1"*^" 392 . RULES OF THE SUPREME COURT, 1883. Ord. XXXI. may, if satisfied that tlie right to the discovery or inspection sought tions before depends on the determination of any issue or question in dispute in discovery. the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should he determined before deciding upon the right to the discovery or inspec- tion, order that such issue or question be determined first, and reserve the question as to the discovery or inspection {h). Right to {h) Thus, where the issue raised was whether the defendant had agreed to pay discovery the plaiutifi a sixth of his profits, the plaintiff was not entitled to the production. depending of the books and accounts of the defendant before the hearing [TurneyT. Bayley, on decision 12 W. R. 633 ; see Mcmsdl v. Femey, 2 J. & H. 323) ; so where in a patent suit an of action. interrogatory assumed infringement {Be la Sue v. Diekinson, 3 K. & J. 388 ; Crossley , V. Stewart, 1 N. R. 426 ; Forbes v. Tanner, ibid. 464 ; Eay v. Hargreaves, 14 L. T. 281 ; Mnnegan v. James, 19 Eq. 72: Soffman v. Postitt, i Oh. 673) ; see as to the discretion of the Court in these cases, where the plaintiff asks for discovery to which he is not entitled if he is wrong, and which, if he wins, will be his as a matter of course, Fliner v. Creasy, 9 Ch. 69 ; Zett v. Parry, 1 H. & M. 517 ; Loekett V. Loekett, 4 Ch. 336: Saull v. Browne, 17 Bq. 402; 9 Ch. 364; G. W. Colliery Company v. Tucker, 9 Ch. 376 ; Thompson v. Dunn, 6 Ch. 573 ; Carver v. Pinto Zeite, 5 Oh. 90 ; Smgh v. Garrett, 32 L. T. 45. Where the materiality of the discovery depends upon the determination of the question in dispute, and the discovery sought is likely to cause considerable trouble and to prove offensive to the person from whom it is sought, the Court will, under this rule, postpone the discovery untU the question has been determined (Wood v. Angh-Italian Bank, 34 L. T. 255). See also Me Zdgh, MowcUffe v. Leigh, 6 Ch. D. 256 ; Scmnders v. Jones, 7 Oh. D. 435 ; Benbow v. Zow, 16 Ch. D. 93 ; Verminck v. JSdwa/rds, 29 W. R. 189 ; Parker -7. Wells, 18 Ch. D. 477; WhyU v. Ahrens, 26 Oh. D. 717. Penalties for refusing to answer or make dis- covery. 21. If any party fails to comply with any order to answer interroga- tories, or for discovery or inspection of documents, he shaR be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court or a judge for an order to that effect, and an order may be made accordingly («). («) Where a husband and wife were ordered to maie discovery and the husband absconded and the wife alone made the discovery, it was held a substantial oompli- anoe with the order {Em-tUyy. Owen, W. N. (1876), 193; 34 L. T. 752). This rule takes the place of Cons. Ord. XJI., lay which a defendant might be attached for not answering. It does not authorize attachment for not giving names of partners under Ord. XVI. r. 14, or for not giving in accounts under Ord. XV. {Pike V. Keene, 24 W. R. 322). It is not imperatwe on the Court to dismiss the action under the rule {Hartley v. Owen ; and sec also Twycross v. Grant, W. N. (1875), 201, 225) ; but it will gene- rally be dismissed for default on the part of the plaintiff {EepubUo of Liberia v. Boye^ 9 Ch. 569 : 1 App. Cas, 139). Ord. LII. r. 4, applies to a notice of motion to commit under this rule {Zitchjield v. Jones, 25 Oh. D. 64). See, generally, as to attachment, Ord. XLIV., post. Order for in- 22. Service of an order for interrogatories or discovery or inspection terrogatories, made against any party on his solicitor shall be sufficient service to served on found an application for an attachment for disobedience to the order (A), solicitor, p^^^j; ^-j^^ party against whom the application for an attachment is made RULES OP THE SUPREME COURT, 1883. 393 may show in answer to the application that he has had no notice or Ord. XXXI. knowledge of the order. (A) See Joy v. SadUy, 22 Oh. D. 571 ; J?e Muloaater, W. N. (1878), 81 ; 26 "W. R. Service. 23. A solicitor, upon whom an order against any party for interro- Solicitor to gatories or discovery or inspection is served under the last preceding OTderTo'"^ °^ rule, who neglects without reasonable excuse to give notice thereof to oHent. his client, shall he liable to attachment. 24. Any party may, at the trial of a cause, matter, or issue, use in Part only of evidence any one or more of the answers or any part of an answer of f^^ii^er may J.T, -J. i i ■ , ... "6 used in tne opposite party to mterrogatones without putting in the others or evidence at the whole of such answer : Provided always, that in such case the *"*^" judge may look at the whole of the answers, and if he shall be of opinion that any others of them are so connected with those put in that the last-mentione. 100. Unless the agreement provides that the evidence shall be given by affidavit alone, a witness who has made an affidavit may supplement it by vivd voce evidence (Glossop V. Eeston local Board, W. N. (1878), 72). («?) The evidence of witnesses residing in New South Wales was ordered to be given by affidavit under this rule [Macdonald v. Antelmc, "W. N. (1884), 72). (c) Where one party desires the production of a witness for cross-examination the Court cannot drder an affidavit used on a previous interlocutoiy appKoation to be read at the trial [Blackburn Union v. Brooks, 7 Ch. D. 68 ; but see Patterson v. Wooler, 2 0h. D. 686). When an action has been in the paper for trial and has been adjourned for a month at the plaintifE's request, it is too late for the plaintiff to move for a commis- sion to take the evidence of himself and another witness who is in India, and to postpone the trial tUl the return of the depositions ISteuart v. Gladstone, 7 Ch. D. 394). [Eule 2 applies only to Admiralty actions.] 8. An order to read evidence taken in another cause or matter shall Evidence another cause T^ot^e necessary, but such evidence may, saving all just exceptions, be may be read ifead on ex parte applications by leave of the Court or a judge, to be without leave. '' ° EXILES OF THE SUPREME COURT, 1883. 423 obtained at the time of making any such appKcation, and in any 0. XXXVII. other case upon the party desiring to use such evidence giving two " days' previous notice to the other parties of his intention to read such evidence (/). _(/) TMs rule is new; under the old practice an order was necessary before eviaenoe token m one cause could be read in another : see Oons. Ord. XIX. rr. 4, 6 ; JUaniell, 596. ' 4. Office copies of all writs, records, pleadings, and documents filed Office copies in the High Court of Justice shall be admissible in evidence in aH ^^e ^!" causes and matters and between all persons or parties, to the same denoe to the extent as the original would be admissible. same extent as ongjnals. II. Examination of Witnesses. 5. The Court or a judge may, in any cause or matter (y) where it Court may shall appear necessary for the purposes of justice, make any order for ^j^^e exa-^* the examination upon oath before the Court or judge or any officer of miuationof the Court, or any other person and at any place, of any witness or ■^*^«sses. person (A), and may empower any party to any such cause or matter to give such deposition in evidence thereia on such terms, if any, as the Court or a judge may direct («'). (y) ^. g. a summons under the Vendor and Purchaser Act, 1874 ; see Se Springall, " Cause or W. N. (1875), 225. matter." (A) These words include a party to the cause {JSTadin v. Bassett, 25 Ch. D. 21). « w'+t, (i) An order wiU be made under this rule whenever a necessary witness is going Witness or abroad, or is likely from iUness, age, or other infirmity, to be unable to attend the P^^°'^- trial, or, in short, whenever the interests of justice really require it : see Warner v. Order, when Mosses, 16 Ch. D. 100 ; Nadin v. Bassett. made. In a proper case the Court will make an order for the examination of witnesses Evidence de bene esse upon an ex parte application, but the order may be discharged on de-tene esse sufScient grounds ; see Bidder v. Bridges, 26 Ch. D. 1, where it was held that though the fact of a witness being seventy years of age is generally a good ground for such an order, the practice will not necessarily be applied to an extraordinary case, n.g. where an order has been made to examine thirty witnesses. Where the witnesses are abroad the usual practice is to issue a commission or Commission appoint a special examiner {Re Imperial Land Co. of Marseilles, W. S. (1877), 244 ; to examine Spiller V. Paris Skating Binh Co., W. N. (1878), 228 ; London Bank of Mexico v. Sart, witnesses. 6 Eq. 467 ; Crofts v. Middleton, 9 Ha. App. xviii. ; Bawlins v. Wickham, 4 Jur. N. S. 990 ; JEdwards v. Spaight, 2 J. & H. 617). In Ongley v. Hill, W. N. (1874), 157, the British Minister at Teheran was appointed though his own attendant was one of the witnesses. In The M. Moxham, 1 P. D. 107, and Steuart v. Gladstone, 7 Ch. D. 394, applications for a commission were refused. A commission will not be granted unless the evidence is material to the issue raised {Lamgen v. Tate, 24 Ch. D. 522). Nor will a plaintiff who is abroad be allowed to have his own evidence taken by commission when it is clear that he is making the application merely because he wishes to keep out of the way and avoid cross-examination in. Court {Berdan v. Greenwood, 20 Ch. D. 764, n. ; Be Boyse, Crofton v. Orofton, 20 Ch. D. 760 ; and see Langen v. Tate). But, in the absence of special ciromnstances, there is no objection to the evidence of a plaintiff who resides abroad being taken by commission [Armour V. Walker, 25 Ch. D. 673 ; 32 W. E. 214 ; BoMque Franco- Egyptienne v. Lutacher, 28 W. E. 133). If a plaintiff desires to haye the evidence of one of his own witnesses taken abroad, the onus is on him to show that it is for the interests of justice that this should be done (Lawson v. Vacutan Brake Co., 27 Ch. D. 137, where the applica- tion was refused). The witnesses need not necessarily be named in the commission {Sadin v. Bassett, 25 Oh. D. 21 ; Armaur v. Walker). A commission may be issued to a foreign Court ; but where it appeared that under the ordinary procedure of the foreign Court the witness would not be cross- examined the application was refused [Re Boyse, Crofton v. Crofton, 20 Ch. D. 760) ; see Valentine v. Sail, W. N. (1866), 50 ; Imperial Land Co. of Marseilles v. Master- man, W. N. (1S73), 223. 424 illTLES OF THE SUPREME COURT, 1883. O. XXXVII. 6. An order for a commission to examine witnesses stall be in the Form No. 36 in Appendix K., and the writ of commission shall he in the Form No. 13 in Appendix J., with such variations as circumstances may require {k). (A) A single commissioner may be authorized to administer the oath to himself {Wilson V. De Goulon, 22 Ch. D. 841 ; 31 W. R. 839). For these forms, see infra. Eormof order. Single com- missioner. Hequest to examine witnesses. Court may order pro- duction of documents at any stage of the proceed- ings. 6a. If in any case the Coujt or a judge shall so order, there shall be issued a request to examine witnesses in lieu of a commission. The Forms 1 and 2 in the Appendix hereto shall be used for such order and request respectively, with such variation as circumstances may require, and may be cited as Forms 37a and 37b in Appendix K. (M). (Ai) This rule was added hy K. S. C, October, 1884. See these forms, infra. 7. The Court or a judge may in any cause or matter at any stage of the proceedings order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court or judge may think fit to be produced: Provided that no person shaU be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial (Z). (Z) An order will not be made for production before the trial by a person not a party to the action, except for the purpose of some particular application {Central News Co. T. Eastern Telegraph Co., W. N. (1884), 23 ; 63 L. J. Q. B. 236). 8. Any person wilfully disobeying any order requiring his attendance Person dis- to be gmlty for the purpose of being examined or producing any document shall of contempt. i,e deemed guilty of contempt of Court, and may be dealt with accordingly (ot). (m) See rule 13 and note thereto, post, p. 425. Costs of per- 9. Any person required to attend for the purpose of being examined dooiments.™^ or of producing any document, shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court (ra). Costs and (») As to costs and expenses of witnesses generally, see Morgan & Wurtzturg expenses of on Costs, p. 41. witnesses. It seems that professional witnesses, even though residing within the bills of mortality, may require compensation before giving evidence ( Clari v. Gill, 1 K. & J. 19). The scale of. allowance in such a case does not depend on a witness's valuation of his own time, but consists of a fixed payment corresponding with that allowed in the old Courts of common law {Nokes v. Gibbon, 3 Our. N. S. 282 ; Turner v. Turner, 7 W. R. 573 ; Thomas v. Parry, "W. N. (1880), 184; Re Working Men's Mutual Society, 21 Ch. D. 831). A witness may require to have his travelling expenses paid before attending to be examined {Brocas v. Lkyd, 23 Beav. 129) ; and when brought up to be examined he may insist, before giving evidence, on being paid for his loss of time also ( Wiltshire v. Marshall, W. N". (1866), 80 ; He Working Men's Mutual Society, where a ooxmtry auctioneer was held entitled to a guinea a day compensation and his expenses) ; and the rule applies to parties to suits as well as to other witnesses {DoAiey v. Durrant, 24 Beav. 493 ; 2 De &. & J. 506). 10. Where any witness or person is ordered to be examined before Examiner to with copy of ^^^ officer of the Court, or before any person appointed for the pur- EXILES OF THE SUPREME COtTRT, 1883. 425 pose, the person taking the examination shall be furnished by the 0. XXXVII. party on whose application the order was made with a copy of the necessary writ and pleadings, if any, or with a copy of the documents necessary documents, to inform the person taking the examination of the questions at issue between the parties (o). (o) See note to next rule. 1 1 . The examination shall take place in the presence of the parties. Conduct of their counsel, soUcitors or agents, and the witnesses shall be subject to examination, cross-examination and re-examination {p). (p) This and the preceding role are taken from the Chancery Procedure Act, 1852, 15 & 16 Viot. c. 86, 8. 31. The examiner's room is not a public Court (Me Westei'n of Canada Oil Co., 6 Ch. D. 109). 12. The depositions taken before an officer of the Court, or before Depositions any other person appdnted to take the examination, shall be taken ^°^ ^ ^^ down in writing by or in the presence of the examiner, not ordinarily -writing and by question and answer, but so as to represent as nearly as may be ^'S^^^"- the statement of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or such of them as may think fit to attend. If the witness shall refuse to sign the depositions, the examiner shall sign the same. The examiner may put down any particular question or answer if there should appear any special reason for doing so, and may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination. Any questions which Where ques- may be objected to shall be taken down by the examiner in the depo- ^°^^ ° jeoted sitions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question (j). {q) This rule is taken from the Chancery Procedure Act, 1852, s. 32. The examiner ought not, where the examination is taken ex parte, to refuse to Powers of allow questions to be put unless upon matters which would clearly not be evidence, examiner. [Sun- V. Walmsley, 2 Eq. 439). He has power, it seems, to determine question as to the adverse nature of a witness's evidence (Ohben v. Terrero, 10 Ch. 127 ; but see BuckUy v. Cooke, 1 K. & J. 29 ; Wright v. Wilkin, 6 "W. R. 643 ; 4 Jur. N. S. 804). 1 3. If any person duly summoned by subpoena to attend for exami- Witness nation shall refuse to attend, or if, having attended, he shall refuse atten™or*° - to be sworn or to answer any lawful question, a certificate of such be sworn, refusal, signed by the examiner, shall be filed at the central office, and thereupon the party requiring the attendance of the witness may apply to the Court or a judge ex parte or on notice for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be (r). (;•) This rule is taken from Chancery Procedure Act, 1852, s. 33, now repealed. The principal grounds upon which a witness may refuse to answer a question are G-rounds of (1) that the answer may criminate him ; (2), that he cannot answer without a refusal by * " witness. 426 RULES or THE SUPBEME COURT, 1883. O. XXXVII. breach of professional confidence.: see Dan. p. 659 ; and see Ord. XXXI., and notes thereto, ante, p. 381. A -witness may object to answering a question on the ground that the answer would criminate him, without giving his reasons ; but if he gives his reasons the Court will consider them, and if they are luifounded will compel him to answer {Asian's Case, 27 Beav. 474 ; 4 De a. & J. 320 ; S. v. Soi/es, 7 Jur. N. S. 1168 ; Se Fernandez, 10 C. B. N. S. 3, 39, 40). Where an order has been made for taking the examination of a witness before one of the examiners of the Court, and the witness fails to attend or refuses to be sworn, the proper course is to serve tiiTn with a subpoena, and if he still fails to attend or refuses to be sworn, then to move for an order that he attend at his own expense (Stuart v. BalUs Company, W. N. (1884), 122). Validity of objection, how decided. Motion that witness attend and be examined. 14. If any witness shall object to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the central office to be there filed, and the validity of the objection shall be decided by the Court or a judge (s). (s) The validity of the objection is considered on a motion by the examining party that the witness attend the examiner at his own expense and be examined, notice of the motion being served on the witness (Daniell, 661) ; and the costs follow the event. Where, prior to the Chancery Procedure Act,-1852, a commissioner, notwith- standing the demurrer of a witness, took upon himself to examine him, the depositions were suppressed, though the demurrer was held untenable [Goodale v. Gazothom, i De G. & Sm. 97). 15. In any case under the two last, preceding rules, the Court or a judge shaJl have power to order the witness to pay any costs occasioned by his refusal or objection {i). (<) See notes to the last two rules. 16. When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the central office, and there filed (m). (m) This rule is taken from Chancery Procedure Act, 1852, s. 34. Where an examiner omitted to sign the depositions, they were allowed to be filed without delay upon payment of costs, and upon a proper explanation being given {Stephens v. Wanlelin, 19 Beav. 685). And when an examiner dies without signing, they may be signed by his successor {Bryson v. Warwick and Birmingham, Canal Company, 1 W. B. 124) ; or filed without any signature {Felthoase v. Bailey, 14 W. E. 827). An examiner appointed to take evidence for the hearing of the cause, must return aU the depositions at once {Clark v. Gill, 1 K. & J. 13). 17. The person taking the examination of a witness under these rules may, and if need be shall, make a special report to the Court touching such examination and the conduct or absence of any witness or other person thereon, and the Court or a judge may direct such proceedings and make such order as upon the report they or he may think just (f ). («) This rule is taken from 1 Will. IV. c. 22, s. 8, and the 0. L. P. Act, 1854, BS. 56 and 66. Depositions^ 18. Except where by this order otherwise provided, or directed by given in evi- *^® Court Or a judge, no deposition shall be given in evidence at the Depositions to be signed by the examiner and filed. Omission to sign deposi- tion. Filing of depositions. Examiner may make a special report. EXILES OP THE SUPREME COURT, 1883. 427 tearing or trial of the cause or matter without the consent of the party 0. XXXVII. against whom the same may be offered, unless the Court or judge is deuce at the satisfied that the deponent is dead, or beyond the jurisdiction of *"°'l- the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person tating the examination shall be admissible in evidence saving aU just exceptions without proof of the signature to such certificate {w). (w) This rule is taken from 1 Will. IV. o. 22, s. 10. See Su/ce of Beaufort v. Crawshatj, L. E. 1 C. P. 699. 19. Any officer of the Court, or other person directed to take the ex- Examiner amination of any witness or person, may administer oaths {x). Sr^oaths. ^" (x) This rule reproduces the latter part of sect. 35 of the Chancery Procedure Act, 1852. 20. Any party in any cause or matter may by suhpmna ad testifican- Power to dum or duces tecum require the attendance of any witness before an require officer of the Court, or other person appointed to take the examination, of witnesses. for the purpose of using his evidence upon any proceeding in the cause or matter in Kke manner as such witness would be bound to attend and be examined at the hearing or trial ; and any party or Cross-exami- witness having made an affidavit to be used or which shall be used on nation on any proceeding in the cause or matter shall be bound on being served with such subpoena to attend before such officer or person for cross- examination (y). [y) This rule is taken, with only slight alterations, from the Chancery Procedure Act, 1852, 15 & 16 Vict. c. 86, s. 40. The efiect of this and the next rule is that any party may, without leave of the Court, issue a siibpcena for the examination of a witness at any stage of an action ; but the Court wiU exercise a control over this privilege to prevent its being used oppressively {Raymond v. Tapson, 22 Ch. D. 430). The following afEdavits have been decided to be open to cross-examination : — What affi- An afEdavit made in support of a petition under the Trustee Relief Act [Re Bon- davits are dyshe, 5 W. E. 816). open to oross- A creditor's affidavit as to his claim, even though he had obtained a judgment at examination law {Cast V. Toyser, 3 Sm. & Oif. 369 ; Re Baker, 11 W. R. 1127). . . ' An accounting defendant's affidavit verifying his claim {Re lord, 2 Eq. 605 ; -ft-lM^avit ot_ Meacham v. Cooper, 16 Eq. 102) ; and see note to Ord. XXXIII. r. 4, ante, p. 398. creditor yeri- An affidavit filed in support of an application for leave to amend {Catholic Publish- '■J^S olaun ; ing Co. v. Wyman, 11 W. E. 399) ; but when the Court, exercising its discretion, of plaintiff had given leave to amend, it was held that no purpose could be answered by allow- applying for ing the cross-examination, which was therefore refused {ibid.). leave to Affidavits in support of, or against interlocutory motions {Lhydy. Whitty, 19 amend. Beav. 57). But when an affidavit had been filed in support of a motion for injunc- q^ motions tion but the motion went off, it was held that the affidavit was not open to cross- examination {Hooper v. Campbell, 13 W. E. 1003 ; Singer v. Audsley, 13 'Eq. 401). An affidavit as to dooiunents is not within the rule ; see note to Ord. XXXI. r. 12, Affidavit as to ante, p. 337. documents. But the cross-examination cannot be read against co-defendants {Rehden v. Wesley, A person (whether a party or not) who has made an affidavit cannot withdraw it Affidavit in order to escape cross-examination [Re Quartz Sill Co., 21 Ch. D. 642 ; Catholic Pub- cannot be lishina Co. v. Wyman ; Clarke v. law, 2 K. & J. 28 ; Prole v. Soady, 3 Ch. 220 ; Pike withdrawn. V. Robinson, W. N. (1873), 178 ; but see Re Sykes, 2 J. & H. 415). Where the affidavit was a formal one, merely provmg service abroad, and had no relation to the merits of the case, a motion for cross-examination was disallowed {OJlcial Manager of National, §c. Association v. Carstairs, 11 W. R. 866) ; and so 428 EULES OF THE SUPREME COTTET, 1883. O. XXXVII. If no oppor- tunity to cross-examine affidavit has less weight, but may be admitted. Mode of taking evi- dence subse- quently to toial. Evidence at any stage to be taken as at the trial Special directions. Evidence taken before issue joined. Evidence taken at the trial may be used subse- quently. where the proposed cross-examination was vexatious {Fenton v. Cumberlcge, "W. N. (1883), 116). As to a cause standing over when a witness was too ill to appear for cross-exami- nation, see Nason v. Clamp, 12 W. R. 973. Affidavits which the opposite party has had no opportunity of testing by cross- examination may, in pressing cases (but see Bingley v. Marshall, 6 L. T. 682), be admitted, but will have less weight attached to them : e. g. where a plaintifi at law moved to dissolve an injunction, and the motion was not allowed to stand over that the other side might cross-examine his witnesses [Normanville v. Stanning, 10 Hare, App. XX. ; Ma]/es v. Spenee, 1 J. & H. 87 ; Wightmam, v. Wheelton, 23 Beav. 397 ; but see Besemeres v. Sesemerea, Kay, App. xviU., where the motion stood over that the witnesses might be cross-examined) . Eor other cases where affidavits have been admitted for what they were worth, though on account of death or from other causes, no cross-examination had taken place on them, see Abadom v. Abadom, 24 Beav. 243 ; Morley v. Morley, 5 De G. M. & Q. 610 ; Davies v. Otty, 13 W. R. 484 ; Braithwaite v. Keams, 34 Beav. 202 ; Sidley v. Ridley, ibid. 329 ; Tanawell v. Seur- rah, 11 L. T. 761. 21. Evidence taken subsequently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial (z). [z) This rule is taken from the Chancery Procedure Act, 1852, s. 41. 22. The practice with reference to the examination, cross-examina- tion, and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage {a). (a) Of. Cons. Ord. XIX. r. 10, and Chancery Procedure Act, 1852, s. 31. 23. The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the Court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which may be given in any case (S). (b) This rule is taken from Cons. Ord. XIX. r. 11. 24. No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the Court or a judge be received at the hearing or trial thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the Court or a judge, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf (c). [e] This rule is taken from Cons. Ord. XIX. r. 12. 25. All evidence taken at the hearing or trial of any cause or matter may be used in any subsec[uent proceedings in the same cause or matter (d). [d) This rule is taken from Gr. O., 5th February, 1861, rule 15. Delivery and filing of prsecipe. III. SUBPCENA. 26. Where it is intended to sue out a subpoena, a prsecipe for that purpose, in the Form No. 21 in Appendix G., and containing the name or firm and the place of business or residence of the solicitor intending to sue out the same, and, where such solicitor is agent only, RULES OP THE SUPREME COURT, 1883. 429 then also tL.e name or firm and place of business or residence of tlie O. XXXVII. principal solicitor, shall in all cases he delivered and filed at the central ~~~ o£B.ce (e). («) The rules in this part of the order are taken from Cons. Ord. XXVIII. For the form here referred to, see infra. 27. A writ of suhpoena shall he in one of the Forms 1 to 7 in Ap- Form of pendix J., with such variations as circumstances may require (/). subpoena. (/) For these forms, see post. 28. Where a subpoena is required for the attendance of a witness Issue of for the purpose of proceedings in chambers, such subpoena shall issue subpoena. from the central office upon a note from the judge. 29. Every subpoena other than a subpoena duces tecum shall contain Subpoena to three names where necessary or required, but may contain any larger "oi^*^™ ^^^^ number of names. 30. No more than three persons shall be included in one subpoena Subpoena duces tecum, and the party suing out the same shall be at liberty to duces tecum sue out a subpoena for each person if it shall be deemed necessary or more than desirable (^). three names. {g) A subpoena for documents must specify the documents required, and must be Subpoena for founded on the ordinary affidavit as to documents {Fiott v. MuUins, 1 Sm. & Griff. 1 ; documents Wing v. Marven, ibid. App. x. ; Mcintosh v. Great Western Sy. Co., 4 De Gr. M. & Gr. must not be 544) ; or the appKcation for documents under it wUl be dismissed with costs {Lee v. vague. ' Angas, 2 Eq. 59 ; Xewland v. Steere, 13 W. R. 1014) ; but see Be Emma Silver Mining Co., 10 Ch. 194. 31. In the interval between the suing out and service of any sub- Correction of poena the party suing out the same may correct any error in the names ^^°^ ™ of parties or witnesses, and may have the writ re-sealed upon leaving a corrected praecipe of such subpoena marked with the words ' ' altered and re-sealed," and signed with the name and address of the solicitor suing out the same. , 32. The service of a subpoena shall be effected by deKvering a copy Service of of the writ, and of the indorsement thereon, and at the same time pro- subpoena, ducing the original writ. 33. Affidavits filed for the purpose of proving the service of a sub- Afadavit of poena upon any defendant miist state when, where, and how, and by ^^^^^ whom, such service was effected. 34. The service of any subpoena shall be of no validity if not made Time of within twelve weeks after the teste of the writ. service. IV. Peepetuating Testimony. 35. Any person who would under the circumstances alleged by him Action to to exist become entitled, upon the happening of any future event, to pe^etuate any honour, title, dignity, or office, or to any estate or mterest m any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim (A). (A) See note to next rule. 430 UTILES OF THE SUPREME COURT, 1883. O. XXXVII. 36. In all actions to perpetuate testimony touching any honour, title, Where Oro-wn "ii&i^^yi °^ office, or any other matter or thing in which the Crown interested, may have any estate or interest, the Attorney-General may be made a defendant, and in all proceedings in which the depositions taken in any such action, in which the Attorney-General was so made a defendant, may be offered in evidence, such depositions shaU. be admissible notwithstanding any objection to such depositions upon the ground that the Crown was not a party to the action in which such depositions were taken (i). (») This and the preceding rule are taken from 5 & 6 Vict. c. 69, ss. 1 and 2, now repealed ; as to proceedings under this Act generally, see Campiell v. Lord Dal/iousie, Ij. E. 1 So. & Div. 462; DanieU, 1512—1515. If an action is actually pending concerning certain rights another action to perpetuate testimony in favour of such rights is improper ; the witnesses must be examined de bene esse in the pending suit [Em-l Spencer v. Feeh, 3 Eq. il.")). As to whether persons interested in a will made by a lunatic stiU alive before his lunacy can institute such an action to support the will against future litigation, see Se Tayleur, 6 Oh. 416. Eor a recent instance of an action to perpetuate testimony at the instance of the committee of a lunatic, see Ee Stoer, 9 P. D. 120. The Court has jurisdiction to perpetuate testimony with a view to proceedings in a foreign Court [Morris v. Morris, 2 Ph. 205). attorney' general may be made a defendant. 5 & 6 Vict. 0. 69. ■Witnesses not to be examined till action oom- mencedi - Action not to be set down for trial. 37. Witnesses shall not be examined to perpetuate testimony unless an action has been commenced for the purpose (A). (A) See note to next rule. 38. No action to perpetuate the testimony of witnesses shall be set down for trial {l). [Vj This and the preceding role are taken from Cons. Ord. IX. rr. 6 and 7. In a suit for the perpetuation of testimony a defendant need make no discovery beyond an admission of the plaintiff's title to examine the witnesses {Bllice v. Jtoupell, 32 Beav. 299 ; see Lancaster v. Ltmeaster, 6 Sim. 439 ; Coveny v. Athill, 1 Dick. 355). See also Brigstoeke v. Eoch, 7 Jur. N. S. 63. If a suit to perpetuate testimony is not diligently prosecuted ( Wright v. Tatham, 2 Sim. 459 ; Seaman v. Carpenter, 11 Sim. 22), the proper order is that the plaintiff do proceed within a certain time, or pay tile defendant his costs {ilii. ; and see Sarham v. Longman, 2 Sim. 460). Setting down. As to setting down, see BUioe v. Soupell, 32 Beav. 308, and oases there cited ; and Vaughan v. Fitzgerald, 1 Soh. & Lefroy, 316. When the wifaiesses have been examined there is an end of the cause [Morrison v. Arnold, 19 Ves. 670) ; and the defendant upon an allegation that he did not examine any witnesses is entitled to his costs [Foulds v. Midgeley, 1 V. & B. 138) ; but if he examines witnesses himself he is not entitled to any costs {Shrine v. Fowell, 15 Sim. 81). Where the defendant obtains the usual order for Ms costs, and such order recites that the testimony of witnesses has been taken, the examination must be regarded as completely taJten, and cannot be excluded because there was no sufBcient cross-examination [Watleins v. Atchison, 10 Ha. App. xlvi.). Unless the witnesses are incapacitated from travelling their depositions taken in a suit to perpetuate testimony cannot be read {Morrison v. Arnold, 19 Ves. 670 ; and see Watkins v. Atchison). For an order directing pubUcatiou of testimony taken in an old suit, see Vane v. Vane, 24 W. R. 453, 665 ; W. N. (1876), 109, 132 ; and see also Llmover v. Eomfrmj, 13 Ch. D. 380. Admitting right to examine. Want of prosecution. Costs of defendant, Examination to be taken before an examiner of the Court. V. Examinees as the Cotjet. 39. The examination of any witness or person ordered to be taken under Eules 1 and 5 of this Order shall, in any cause or matter in the Chancery Division, unless the Court or a judge shall otherwise direct, be taken before one of the examiners of the Court, and may, in any EULES OF THE SUPREME COURT, 1883. 431 cause or matter in the Queen's Bench and Probate, Divorce and Admi- 0. XXXVII. ralty Divisions, if the Court or a judge shall so direct, he taken before one of such examiners (m). (m) The rules in this part of the order -were added in Fehruary, 1884, upon the retirement of the examiners in Chancery ; they provide for the appointment of examiners of the Court to take the examination of witnesses in rotation, but do not interfere with the appointment, where necessary, of a special examiner. 40. A sufficient number of bamsters-at-law, of not less" than three- Examiners to years' standing, shall be from time to time appointed by the Lord yl the Lord - Chancellor to act as examiners of the Court for a period not exceeding Chancellor, five years, and shall be at any time removable by the same authority. 41. The examinations to be taken before the examiners of the Court Examinations shall be distributed among them in rotation by the first clerk to the t^^i'^^nff registrars of the Chancery Division, and in his absence by the second examiners, clerk, and in the absence of the first and second clerks by such of the other clerks to the registrars as the senior registrar may determine. 42. The derk in the last preceding rule mentioned shaU be respon- Rota of sible for making the distribution according to regular and just rotation shammers, and in such manner as to keep secret from all persons the rota or suc- cession of examiners of the Court : and it shall be his duty to keep a record thereof with proper indexes and dates. 43. The party prosecuting the order or his solicitor shall produce Reference to such order or a duplicate thereof to the clerk in rule 41 mentioned, ^^^™^^- who shall, except in the case provided for in rule 49, add at the foot thereof a memorandum specifying the name of the examiner of the Court in rotation before whom the examination is appointed to be taken ; and the order or duplicate shall be left by the party prosecuting the same, or his solicitor, with the examiner so appointed, and shall be a sufficient authority for him to proceed with the examination. 44. Upon production of the order indorsed with his name the Examiner to examiner of the Court shall give an appointment in writing specifying ment!'^^°™ " the place and time (within not more than seven days) at which, subject to any application from the parties, the examination shall be taken ; and the party prosecuting the order or his solicitor shall within twenty-four hours, or such shorter time (if any) as may be mentioned in the order, g^ve notice of the appointment to aU parties. 45. In determining the place and time at which an examination place and shall be taken, the examiner shall have regard to the convenience of *™^ ?* , . ' , . 1 1 11 ii. • J. J} exammation. the witnesses or persons to be exammed and all the circumstances oi the case ; and he shall proceed with such examination at the place and time appointed, and subject to such adjournment as he shall think necessary or just continue the same de die in diem («). («) This rule was substituted for the original r. 45 by Rules of the Supreme Court, October, 1884. 46. The examiner may, with the consent in writing of all parties, Examination take the examination of any witnesses or persons in addition to those -v^tnesses. 432 EULES OF THE SUPREME COURT, 1883. O. XXXVII. named or provided for in the order, and shall annex such consent to the original depositions. Completion of 47_ XJpon the completion of an examination taken before an examiner of the Court, he shall indorse the original depositions with a note, authenticated hy his signature, certifying the number of hours or days (as the case may be) exclusively employed thereupon, and the fees received in respect thereof (o). (o) The present rules 47, 48 and 50, were substituted for those originally issued by Rules of the Supreme Court, October, 1884. Where 48. In case any examiner of the Court, before whom according to ■M.aUe'to act ^^^ rotation any examination is to be taten, shall be engaged as examination counsel in the cause or matter to which such examination relates, or to next ^^^ shall from illness or from any other cause be unable or decline to examiner. take such examination, the same shall be assigned by the clerk in rule 41 mentioned to another examiner of the Court according to the rotation aforesaid : Provided that it shall be the duty of any examiner before whom any examination is pending to decline any other examination in any case where the acceptance thereof is likely to create delay or inconvenience in the taking of any examination before h.ira.{p). {p) See note (o) to rule 47. Reference to 49. The Court or a judge may, if they or he think fit, direct or particular transfer an examination to any one in particular of the examiners of exanuner. , « i i. the Court. Fees and 50. The Court or a judge may, on the application of an examiner, expenses. order the payment to him by the party prosecuting the order of the fees and expenses payable to him on account of any examination, but without prejudice to any question on the taxation of costs as to the party by whom the costs of such examination should eventually be borne (j). (?) See note (o) to rule 47. FEES. £ s. d. Fees on 1. For every examination before an examiner of the examination. Court in London or Middlesex (r) 1 1 2. Por the examiner's clerk 2 6 3. For each hour, or part of an hour, occupied in such examination beyond two hours 10 6 4. Por the examiner's clerk, where such examination occupies more than three hours, (in addition to fee No. 2) per day 2 6 5. For every examination before an examiner of the Court elsewhere than in London or Middlesex (r) 5 5 6. For every day of six hours, or part of a day, occupied in such examination beyond the first day 5 5 •TITLES 01* THE SUPREME OOtJRT, 188S. 433 I'he party prosecuting the order, or his solicitor, shall also pay all 0. XXXVII. reasonable travelling and other expenses, including charges for the room (other than the examiner's chamhers) where the examination is taken. N.B. The fees, Nos. 1, 2, and 5 (as the case may he) shall he paid by the party prosecuting the order, or his solicitor, on obtaining the examiner's note of time and place for the examination. The fees, Nos. 3, 4, and 6 (as the case may be), shall be paid so soon as the examination has been concluded, together with any travel- ling or other expenses as above mentioned. (r) The foUowing rule was added by E. S. C, Oototer, 1884 :— Examiners' Fees. Instead of the words " in London or Middlesex" in fees 1 and 5, read "within three miles from the principal entrance of the Eoyal Courts of Justice." OEDEE XXXYin. I. Affidavits and Depositions. 1. Upon any motion {oo), petition, or summons evidence may be Evidence on given by affidavit; but the Court or a judge may, on the application ^otioii. peti- of either party, order the attendance for cross-examination of the mons. person making any such affidavit (pp). (oo) As to motions for judgment, see Mlis v. SoHns, 50 L. J. Ch. 512. (pp) As to what affidavits are open to cross-examination, see note to Ord. XXXVII. r. 20, ante, p. 427. Where the parties resided in the country, the registrar of the County Court was directed to take the cross-examination {Ikimb v. Osium, W. N. (1884), 218). 2. Every affidavit shall be intituled in the cause or matter in which Affidavits, it is sworn (yy) ; but in every case in which there are more than one ^^ mtituled. plaintiff or defendant, it shall be sufficient to state the f uU name of the first plaintiff or defendant respectively, and that there are other plain- tiffs or defendants, as the case may be ; and the costs occasioned by Costs. any unnecessary proUxity in any such title shall be disallowed by the taxing officer. (qq) Affidavits must be correctly intituled, see Mai/ v. frimep, 11 Jur. 1032; Title must be Mackenzie v. Mackenzie, 5 De Gr. & Sm. 338 ; Salomon v. Stahnan, 4 Beav. 243, where correct. a misnomer of the defendant in an affidavit' of service was held a ground for dis- Oorrectiou of charging with costs the order obtained on the motion ; but see Sawes v. Bamford, ^^^^^ j^ y^jg ■9 Sim. 653; Ee Varteg Chapel, 10 Hare, App. xxxvii. ; Fearsen v. Wilcox, 10 Hare, App. XXXV. , where affidavits erroneously intituled were aEowed to be taken ofl the file and re-sworn without a fresh stamp ; Fisher v. Coffey, 1 Jur. N. S. 956. See also Vnderdown v. Stamnard, W. N. (1871), 170 ; Ee Morris, 7 Jur. N. S. 166 ; Ee Sa/rnes, 5 L. T. 587. Under special circumstances an affida.vit may be ordered to be filed though not intituled in any cause or matter {Sakidge v. Tuttm, 20 L. T. 300) ; and a statutory declaration of no settlement, made in New South Wales, but not intituled in the cause, was allowed to be filed with an affidavit verifying the signatures ( Whiting v. Brnsett, 14 Eq. 70). n i i j. i An affidavit in a contemplated action should be intituled in the contemplated Oontemplatecl action and in the matter of the Judicature A.o\s(Tomg v. Brassey, 1 Ch. D. 277). action. M. F F 434 EULES OF THE SUPREME COUBT, 1883. 0. XXXVIII. Facts deposed to must be ■within, know- ledge of ■wit- ness, except on iaterloou- tory applica- tions. Costs. "Inter- locutory motions." Grounds of belief must be sho'wn. Costs. Affidavits in England, ■where sworn. Commis- sioners for oaths. Officer. Commis- sioners to express time and place of taking affi- da-yits. 3. Affidavits Bhall he confined to sucIl facts as the witness is able of his o-wn knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted (_rr). The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same («). {rr) The words " iaterlocuto*y motions" iaclude all interlocutory applications (Se New Callao, 26 Sol. J. 403). Where the proceeding, though interlocutory in form, finally decides the rights of the parties, evidence on information and belief is not admissible, and the opposite party is not bound to contradict it ; but if -in the Court below he deals ■wiiSx- the evidence as admissible, he may be precluded from objecting to it in the Court of Appeal {Gilbert v. Andean, 9 Ch. D. 26fl). The affidavit must show the grounds of the ■witness's belief {Bidder v. Bridges, 26 Ch. D. 1). («) Affidavits by persons having no personal knowledge of the matters deposed to cannot be used at the hearing, and the costs of them ■will be disallowed : per Jessel, M. E,., W. N. (1876), 59 ; and see also Birat v. Procter, W. N. (1882), 12; and Ord. LXV. i. 27 (20), infra. As to scandalous matter in affidavits see r. 11. 4. Affidavits sworn in England shall be sworn before a judge, district registrar, commissioner to administer oaths (<), or officer em- powered under these rules to administer oaths (m). [t) As to ooramissioners to administer oaths in England, see the Oaths in Chancery i.ct, 16 & 17 Vict. c. 78. By s. 1 of this Act, the "masters extraordinary" ■were to be so styled, and they and aH persons thereafter appointed to &charge .ties were to be designated ' ' commissioners ■fco administer oaths in Chancery Act, to cease their duties ^ ,_, in England," and by Cons. Ord. IV. the commissioners were not to do any act incident to their office within ten miles of Lincoln's Inn Hall. Sect. 2 empowers the Lord Chancellor to appoint any persons practising as solicitors ■within ten miles of Lincoln's Inn Hall, at their place of business {see Be Record and Writ Clerks, 3 De G-. M. & G. 723), to administer oaths and take declarations in Chancery, who are to be styled " London commissioners to administer oaths in Chancery," and to be entitled to a fee of one shilling and sixpence for every oath administered by them, and every declaration, affirmation, or attestation of honour taken by them. Sect. 3 provides for the appointment of commissioners for the Channel, Islands (see Ee Dodd, 6 W. R. 174), and the Isle of Man ; sect. 4 relates to stamps on appointments ; sect. 5 contains a sa'ving^ of the power of the Lord Chancellor to appoint persons to administer oaths, and provides that any reference in Acts of Parliament to the masters extraordinary shall apply ■to commissioners ; and sect. 7 provides that persons authorised to administer oatiis in Chancery may administer oaths in the CSianoety of the county palatine of Lancaster. By the 77th section of the Judicature Act, 1873, the commissioners are attached to the Supreme Court ; and by sect. 82 of the same Act, they are made commis- sioners to administer oaths in all causes and matters which may from time to time be depending in the High Court or the Court of Appeal. See further as to the appointment and removal of the commissioners, sect. 84 of the same Act. {u) Any officer of the Court may administer oaths (Ord. XXXVII. r. 19, ante, p. 427). 5. Every commissioner to administer oaths shall express the time when and the place where he shall take any affidavit, or the acknow- ledgment of any deed, or recognizance ; otherwise the same shall not be held authentic, nor be admitted to be filed or enrolled without the leav£ of the Court or a judge ; and every such commissioner shall express the time when, and the place where, he shall do any other act incident to his office {v). («)) This rule is taken from Cons. Ord. IV. An affidavit filed on the registration of a bill of sale was held sufficient where the commissioner signed his name in the jurat but did not add his title as commissioner {Mx parte Johmson, 26 Ch. D, 338). EULKS OF THE SUPREME COURT, 1883. 435 6. An examinations, aflS.davits, declarations, affirmations, and attes- 0. XXXVIII. tations of honour in causes or matters depending in the High Court, Examina- and also acknowledgments required for the purpose of enrolling any tions, &c., deed in the central office, may be sworn and taken in Scotland or Sootlam/'lre- Ireland or the Channel Islands, or in any colony, island, plantation, laud, Channel or place under the dominion of her Majesty in foreign parts, before coloides and any judge. Court, notary public, or person lawfully authorised to abroad, administer oaths in such country, colony, island, plantation, or place respectively, or before any of her Majesty's consuls or vice-consuls in any foreign parts out of her Majesty's dominions ; and the judges and other officers of the High Court shall take judicial notice of the seal or signature, as the case may be, of any such Court, judge, notary public, person, consul, or vice-consul, attached, appended, or sub- scribed to any such examinations, affidavits, affirmations, attestations of honour, declarations, acknowledgments, or to any other deed or document (w). {w) This rule is taken from the Chancery Procedure Act, 1852, 15 & 16 Vict. 0. 86, s. 22; but the concluding words of that section, "to be used in the said Court," are omitted ; see as to these words, Brooke v. Brooke, 17 Ch. D. 833. As to the Isle of Man, see 16 & 17 Vict. 0. 78, s. 6. Isle of Man. (A.) Under this rule, when afSdavits in the colonies and within her Majesty's j^^avits dominions are sworn before the judges, Courts, and persons mentioned ia the text, g^g^n in the no veiification of their signature is necessary {KaywarA v. Stephens, W. N. (1866), (.glonies • 318 ; 36 li. J. Ch. 135), because the Court is directed to take judicial notice of such ' signature ; and see Re Goss, 12 Jur. N. S. 595 _; "W. N. (1866), 256. (B.) Affidavits in foreign countries not forming part of her Majesty's dominions in foreign may be sworn in two ways — countries ; (1.) Under the rule, before the resident consul or vice-consul, and judicial notice ][,efore consul- vpill be taken of his authority and ofBoial seal without formal verification : compare ' the oases in which such official seal is taken in proof of the qualification of a notary pubKo, &G., — e. g., Saggitt v. Iniff, 5 De Gr. M. & G-. 910 ; and see Ferguson v. Bemjon, 16 W. R. 71 ; Bateman v. Cooh, 3 De G. M. & G. 39. (2.) Though the most regular course is now to have the affidavit sworn before before notary the consul, it is settled that there is nothing to prevent its being sworn, if more public, &o. convenient, according to the former practice, irrespectively of the rule — viz., before notaries public, or before persons duly authorised hy the law of the foreign country to administer oaths there ; [Ooolce v. WilMj, 25 Ch. D. 769 ; Cooper v. Moore, W. N. (1884), 78 ; Brittlebanh v. Smith, ibid. 120 ; Levitt v. Levitt,, 2 H. & M. 626 ; Saggitt Y. Imff; Se Kenah, 15 W. R. 781) ; but when affidavits are thus sworn the Court is not authorised to take judicial notice of such person's .authority arid signature, but will require proper proof of both {Baillie v. Jachson, 3 De Gr. M. & Gr. 38 ; Ee Earl, 4 K. & J. 300 ; Se Davis, 8 Eq. 98). A certificate of the clerk of a superior Cotirt of New York was held sufficient verification in Levitt v. Levitt; see Alex- ander V. Mtrse, W. N. (1871), 249 ; and where the fund was small such verification of signature was dispensed with {Mayne v. Butter, 13 W. R. 128) ; and so where the suit was uncontested {Lees v. Lees, W. N. (1868), 268). See also Smith v. Savies, 17 W. R. 69 ; Lyle v. Elhoood, 15 Eq. 67, where a written consent was given ; Whiting v. Birnett, 14 Eq. 70, where a declaration having been made before a notary- public abroad, the declarants' signatures were allowed to be verified by an affidavit in the cause ; Bell v. Turner, 17 Eq. 439. In Drevon v. Brevon, 12 W. R. 66, where the person desiring to make an affidavit lived a hundred miles from any resident consiJ, and there was great difficulty in swearing it before any notary pubKo, the Court appointed a resident solicitor special examiner to take the evidence; and in Se Scriven, 17 L. T. 641, affidavits made in the state of Missouri, U. S., attested by the governor as beiagsealed with the great seal of the state, were admitted, there being no resident consul ; and see Cooper v. Moore, W. N. (1884), 78. ,,,„., , „. , . It must be remembered, that the fact of a consul or other duly authorised person's Signature of signature being attached to a document does not make the docimient itself receivable person autho- in evidence, the Court being only bound to take judicial notice of the seal or signa- rized to ad- ture {Se Forbes, 1 W. K. 32 ; and see Se Goss, 12 Jur. N. S. 695 ; W. N. (1866), minister oath. 256). 436 ETJLES 01' THE SUPREME COURT, 1883.- O. XXXVIII. As to the general words at the end of the rule, Bee Armstrong v. Stockham, H Jut. 97. False swear- Sections 23 and 24 of the Chancery Procedure Act, 1852, are stillin force, and pro- ing or forging vide penalties for false swearing before any person authorized to administer oaths, official seal. or for forging the signature or seal of any such person, or of any judge or notary public. Affidavits to be in first person, and divided into paragraphs. Costs. Form of affidavit. Irregtdar affi- davits, when admitted. Description of deponent. 7. Every aiHdavit shall be drawn up in th.e first person, and sliall be divided into paragraphs, and every paragraph, shall be numbered • consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every aflldavit shall be written or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule {x). [x) The first paragraph of this rule is taken from Cons. Ord. XVIII. r. 1, and sect. 37 of the Chancery Procedure Act, 1862. The form must be "I make oath and say," [Allen t. Taylor, 10 Eq. 52), but affidavits sworn in America in the third person were received as evidence in Me Smicmd, 12 L. T. 303; Itrydm v. Frost, 8 Sim. 380 ; and trifling irregularities have been av'erlooked; see r. 14; Gates-v. Bmhland, 13 W. R. 67 ; Meelc v. Ward, 10 Hare, App. i. ; but the signature of the party cannot be dispensed with [Anderson v. Stather, 9 Jur. 1085 ; as to marksmen, see rule 13, seaAAnon. v. Christopher, 11 Sim. 409) ; nor the words "make oath" [Phillips v. Prentice, 2 Hare, 542 ; JRe Newton, 2 De G. E. & J. 3). But after the affidavit had been filed it was held too late to take the objection that the words " make oath and say " were omitted [Ex parte Torkington, 9 Ch. 298). 8. Every affidavit shall state the description and true place of abode of the deponent (y). [y) This rule does not apply to affidavits by the parties to the action, who may he described as "the above-named plaintifi," or "the above-named defendant," simply ; see DanieU, 625. It is not sufficient to describe a deponent as " gentleman " [Se Orde, 24 Ch. D. 271 ; 31 W. R. 801, where the costs of the affidavit were dis- allowed on this ground). Several deponents. Signature of deponent. 9. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the " above-named " deponents (z). (z) An affidavit should be signed by the deponent at the side of the jurat [Anderson v. Stather, 9 Jur. 1085 ; and see Re Tearley, W. N. (1874), 158) ; and the person before whom it is sworn must sign his name at the foot of the jurat [Ex parte Sev- 7Ch. 488). Affidavits, where to be filed. 10. Every affidavit or other proof used in admiralty actions shall be filed in the admiralty registry : every affidavit used in probate actions shall be filed in the probate registry : every affidavit used on the Crown side of the Queen's Bench Division shall be filed in the crown office department : every affidavit used in a cause or matter proceeding in a district registry shall be filed there : and every other affidavit used shall be filed in the central office (a). There shall be appended to every affidavit a note showing on whose behalf it is filed, and no affidavit shall be filed or used without such note, unless the Court or a judge shall otherwise direct (5). (a) As to the time for filing affidavits to be used on interlocutory applications, see EULES OF THE SUPREME COURT, 1883. 437 rule 25 of this order and note thereto, post, p. 439. Affidavits are filed in the filirig O. XXXVIII. and record department of the office (Ord. LXI. r. 1, infra). (*) The latter part of this rule is taken from a. 0., 5th February, 1861, rule 18. 11. The Court or a judge may order to be struck out from any Scandalous affidavit any matter wliich is scandalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client (c). (c) This rule is new, but it only adopts the practice of the old Court of Chancery ; see Cracknall v. Janson, 11 Ch. D. 1 ; Goddard v. fan; 3 W. R. 633 ; 24 L. J. Ch. 783 ; Kemici v. Kemick, 12 W. R. 335 ; Taylor y. Eeily, W. N. (1876), 139 ; and as to scandalous matter generally, see Ord. XIX. r. 27, ante, p. 360 ; Ord. XXXI. rr. 6, 7, ante, p. 385. The Court has jurisdiction, apart from any rule, to order oppressive and improper Taking doou- doouments to be taken off the file {Sill v. Hart Davis, 26 Ch. D. 470). ments off the file. 12. No affidavit having in the jurat or body thereof any interlinea- Altersitions in tion, alteration, or erasure, shall without leave of the Court or a judge ^ *^ ^" be read or made use of in any matter depending in Court unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or if taken at the central office, either by his initials or by the stamp of that office, nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are rewritten and signed or initialed in the margin of the affidavit by the officer taking it (d). (d) See ffiKv. ffjiiar(?, 9Ha.App. xvi. No alteration can properly be made in any affidavit after it has been sworn, and any commissioner initialing such an alteration commits an irregularity, and renders himself liable to the revocation of his commis- sion. {Mtice, per L. C. ; "W. N. (1882), Part II., 81). 13. Where an affidavit is sworn by any person who appears to the Affidavit of officer taking the affidavit to be illiterate or blind, the officer shall tlind person. Certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent (c). («) Where a marksman signed an affidavit with his name, his hand being gfuided, Marksman, the affidavit was ordered to be taken off the file [Anon. v. Christopher, 11 Sim. 409) ; and so, where it did not appear that the affidavit of an illiterate deponent had been read over to Tn'Tn in the presence of the commissioner [Be Longstaff, W. N. (1884), 216). See further, as to affidavits by blfaid or illiterate persons, Daniell, 629 ; Fernyhiugh V. Naylor, W. N. (1875), 22 ; 23 W. R. 228. Where a deponent is of unsound mind on any point the fact should be noticed in the jurat (Spittle v. Walton, 11 Eq. 420). 14. The Court or a judge may receive any affidavit sworn for the Court may , . , . , i 2. •i-L J. ^ J ■ receive de- purpose of being used m any cause or matter, notwithstanding any feotive or defect by misdescription of parties or otherwise in the title or jurat, '^S^ or any other irregularity in the form thereof, and may direct a 438 EXILES OP THE SUPREME COURT, 1883. Original affidavit. O. XXXVIII. memorandttm to be made on the document that it has heen so received (ee). {ee) See note to r. 7. 15. la cases in -which by the present practice an original affidavit is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used be delivered to and left with the proper officer in Court or in Chambers, who shall send it to be filed. An office copy of an affidavit may in all cases be used, the original affidavit having been previously filed, and the copy duly authenticated with the seal of the office (/). (/) Unfiled affidavits may be need on an ex parte application wliere the matter is pressing and wlien the offices are olosed(^.-ff. v. Lewis, 8 Beav. 179; Garr v, Moriee, 16 Eq. 125 ; Campana v. Wehb, 22 W. R. 622 ; Niemann v. Karris, W. N. (1870), 6 ; Mereers' Co. t. Great Northern Sailway, 14 Beav. 20) ; but not where the respondent has been served and does not appear and the application is made on an affidavit of service {Farrer v. Sykes, 43 L. J. Ch. 392). Unfiled affidavit. Affidavit not to be sworn before soli- citor of party. Clerk or partner of solicitor. Affidavit filed after time. Affidavit in support of ex parte appli- cation to be made before appUoation. Notice to be given of in- tention to use affidavit in chambers. 16. No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such solicitor, or before the party himself {g). (^) This and the next rule are new but adopt tiie settied practice of the Court ; see Dulee of Northumberlimd v. Todd, 7 Ch. D. 777, and oases there cited. It has been held, however, that a plaintiff, beiug a solioitor but not the solicitor in the cause, may put in an affidavit sworn before his clerk {Foster v. Survey, 4 De G-. J. & Sm. 59 ; 9 L. T. 405). See next rule. 17. Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficient if sworn before his clerk, or partner (A). {h) See note to rule 16. 18. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court or a judge (j). (i) This and the next rule are taken from R. Gr. H. T. 1853, rr. 145, 146. 19. Except by leave of the Court or a judge no order made ex parte in Court founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was appHed for, and produced or filed at the time of making the motion (k). (A) See note to rule 18. n. Affidavits anb Evidence m Chambers. 20. The party intending to use any affidavit in support of any application made by him. in Chambers in the Chancery Division shall give notice to the other parties concerned of his intention in that behalf {I). {Ij This rule is taken from Cons. Ord. XXXV. r. 27. An undertaking not to use an affidavit at the hearing does not preclude its being used upon an inquiry ia Chambers {Jenner v. Morris, 10 W. R. 640). RULES OF THE STIPEEME COURT, 1883. 439 21. All affidavits wMcli have been previously made and read in O.XXSVIII. Coiirt upon any proceeding in a cause or matter may be used before j^ffi^a-rftg tbe judge in Chambers (m). used ia Court may be used ()«) This rule ia taken from Cons. Ord. XXXV. r. 28 ; of. Gr. 0., Eebruary 5, in Chambers. 1861, r. 15. Affidavits used in Chambers are open to cross-examination ; but an application to compel attendance for cross-examination mil be refused if made vexatiously {Fenton v. CitmherUge, "W. N. (1883), 116). 22. Every alteration in an account verified by affidavit to be left at Alterations in chambers shall be marked with the initials of the commissioner or initialed, officer before whom the affidavit is sworn, and such alterations shall not be made by erasure (ra). («) This and the two following rules are taken from rules 10, 11 and 12 of the Regiilations as to Business in Chambers of 8th August, 1857. 23. Accounts, extracts from parish registers, particulars of creditors' Accounts, &c. debts, and other documents referred to by affidavit, shall not be ^ ^^ exl^its annexed to the affidavit, or referred to in the affidavit as annexed, but shall be referred to as exhibits (o). (o) See note to rule 22. 24. Every certificate on an exhibit referred to in an affidavit signed Certificates on by the commissioner or officer before whom the affidavit is sworn shall ^tifaJed in ^ be marked with the short title of the cause or matter {p). the cause, (^) See note to rule 22. III. Teial on Aitidavit. 25. Within fourteen days after a consent for taking evidence by Timeforfiling affidavit as between the parties has been given, or within such time ^^ piSntiff as the parties may agree upon, or the Court or a judge may allow, the plaintiff shall file his affidavits and deliver to the defendant or his solicitor a list thereof (j). (j) The rules in this part of the order apply only to evidence at the trial of the Evidence at action. As to the consent here mentioned, see Ord. XXXVII. r. 1, and note there- trial, to, ante, p. 422. Under the old practice no affidavit to be used at the hearing, even of a suit for Affidavit in an injunction, could be sworn lefore bUl filed (Francome v. Franeome, 13 W: E. 355 ; action not Fennel v. Srown, 18 Jur. 1061) ; but see now Young v. Brassey, 1 Ch. D. 277, where yet begun, an affidavit was allowed to be entitled in an action not yet begun and in the matter of the Judicature Acts. So in general affidavits to be used in support of a petition should be sworn after it is presented [Me Western Benefit Building Society, 33 Beav. 368) ; but where the petition was for payment of money out of Coiit, an affidavit sworn before the petition was presented, but after payment of the money in, was received [Be Varley, 14 W. R. 98 ; Re Gombault, W. N. (1868), 243). Affidavits to be used on motions or petitions may be filed up to the last moment Tmie forfilmg before the hearing {Mmroe v. Wivenhoe, SfO. Bail. Co., 13 W. R. 880 ; Fx parte affidavits on Leicester, 6 Ves. 429 ; Jones r. , 8 Ves. 46 ; Electric Telegraph Co. v. Nott, 2 interlocutory Coop. 67, where the hearing was postponed to give time to file them ; see, how- aippUcations. ever Clements. Griffith, Coop. ilO). In a very special case affidavits filed after the motion was opened were admitted [East Lancashire Bail. Co. v. Sattersley, 8 Hare, 87 ; and see Smith v. Swansea Docle Co., 9 Hare, App. xx.) ; and where an affidavit was filed too late for the hearing of a petition, it has been admitted on appeal [Be Gibraltar Banking Co., 13 L. T. 263). 440 RULES OF THE SUPREME COURT, 1883. O. XXXVIII. Affidavits of service ought properly to be filed before tbe rising of the Court on the day on vrhioh the application is made {Lord Milltown v. Stuart, 8 Sim. 34) ; but this rale has often been departed, from since the Judicature Acts, and the Court of Appeal recently declined to discharge an order simply because the rule had not been oompUed with {Seear v. Webb, 25 Ch. D. 84) ; and the registrars are now authorized to accept an affidavit of service sworn and filed at any time before the order is drawn up {Memorandum, 28 Sol. J. 591). The time for filing affidavits and taking evidence may be enlarged in proper oases; see Anderton v. Yates, 15 Jur, 833; Mayes v. Mayes, 11 Jur. N. S. 1033; Wragg v. Wragg, 11 Jur. 701. Thus, where affidavits were filed just before the close of the time, containing charges as to which no issue had been raised in the pleadings, counter affidavits were allowed {Scott v. Mayor of Liverpool, 1 De C & J. 369) ; and similar leave was given, the period for cross-examination being also enlarged, va. Phillips v. Warde, 2 Jur. N. S. 33 ; and see Hope v. Threlfall, 1 Sm. & Q-. App. xxi. ; Bouglas v. Arch- butt, 23 Beav. 293. So the Court has a discretion to allow such affidavits to be read at the hearing {Boyse v. Cololough, 1 K. & J. 124 ; Thompson v. Partridge, i De G. M. & G. 794 ; Bayley v. Cass, 10 W. R. 370 ; but see Smith v. Pilgrim, 2 Ch. D. 133) ; and the cause may be ordered to stand over, to give the other side time to answer them {Seath v. Vallingford, 12 L. T. 631). Where the Court gave a plaintiif leave, seven months after he had given notice of motion for decree, to use as evidence an examination of the defendant taken in another cause, the defendant was allowed to file affidavits in explanation, though the cause was in the paper {Watson v. Cleaver, 20 Beav. 137). The Court has a discretion to allow one party to cross-examine the other's wit- nesses before filing his own affidavits ; see Morey v. Vandenburg, 14 L. T. S42. The application for extended time should not be made ex parte {Richards v. Curlewis, 2 W. R. 481). Leave was granted, after the time for closing evidence had passed, to file affi- davits verifying extracts from a register of a Scotch Court of law {McLaehlan v. Lord, 14L. T. 98). This and the two next rules are founded on Cons. Ord. XXXIII. Pt. II. rr. 5, 6 and 7. 26. Tte defendant, within fourteen days after delivery of such. Hst, or -within such time as the parties may agree upon, or the Court or a judge may aUow, shall file his affidavits and deliver to the plain- tiff or his solicitor a list thereof. 27. Within seven days after the expiration of the last-mentioned fourteen days, or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which, affidavits shall be confined to matters strictly in reply (y), and shall deliver to the defendant or his solicitor a list thereof. {r) The plaintiff's affidavits in reply may be oonflnnatory of his evidence in chief {PeaeoeJc v. Harper, 7 Ch. D. 648). Affidavits in reply wiU not be ordered to be taken off the file on the defendant's allegation that they are not confined to matters strietiy in resply ; but, if at the hearing they turn out to be so, the Court will disregard them, or give the defendant leave to answer them {Gilbert v. Comedy Opera Co., 16 Ch. D. 594). 28. When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, req^uiring the production of the de-. ponent for cross-examination at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court or a judge may specially appoint ; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the Court or a judge. The Affidavits of service. Time, when enlarged. Cases of surprise. For purpose of answering late affidavits or to explain them. Not applied for ex parte. By the defendant. Affidavits in reply. Affidavits strictly ia reply. Cross- eKamination of deponent. RULES OF THE SUPREME COURT, 1883. 44^ party producing such, deponent for cross-examination shall not be 0. XXXVIII. entitled to demand the expenses thereof in the first instance from the party requiring such production («). {«) This and the next rule are taken from Greneral Order, 5th February, 1861, Gr. 0.5th Feb, r. 19. 1861, 1. 19. The deponent may be cross-examined, even though his affidavit has not been Cross- used by the party who filed it {Ex parte Child, 20 Ch. D. 126). examination If the deponent is not produced for cross-examination when required, his affidavit of deponent, cannot be used without special leave, and it is therefore irregular to move to take it off the ffle [Mexjrick v. James, W. N. (1877), 120 ; 46 L. J. Ch. 579 ; and see De £rito V. Millel, 15 Eq. 213). The party producing the deponent bears the cost thereof in the first instance. Expense of whether the cross-examination takes place at the trial, or, it would seem, on an affi- producing davit filed after decree for the purpose of proceedings in Chambers ; see Ord. deponent for XXXVII. rr. 21, 22, ante, p. 428 ; Se Knight, Knight v. Gardner, 25 Ch. D. 297, cross-exami- where the contrary was decided under Ord. XXXVIII. r. 4, R. S. C. 1875. nation. 29. The party to whom such notice as is mentioned in the last pre- Attendance ceding rule is given shall be entitled to compel the attendance of the exai^^ation deponent for cross-examination in the same way as he might compel how enforced, the attendance of a witness to be examined (<). {t) See Ord. XXXVII., Ft. II., ante, p. 423. 30. "When the evidence under this order is taken by affidavit, such Evidence to evidence shaU. be printed, and the notice of trial shall be given at the ^® P™ited. same time after the close of the evidence as in other eases is by these rules provided after the dose of the pleadings (u) : provided that other affidavits may be printed if all the parties interested consent thereto, or the Court or a judge so order : provided also, that this rule shall not apply in the Probate, Divorce and Admiralty Division to default actions in rem, or references in actions, or actions for limitation of liabUity, unless the Court or a judge shall otherwise order. [u] As to notice of trial, see Ord. XXXVI., Ft. III., ante, p. 413. Evidence may be taken by affidavit, under a judge's order, after notice of trial has been given, notwithstanding this rule [Waring v. Laeey, 24 W. R. 318), As to printing, see Ord. LXVI., infra. OEDEE XXXIX. Motion por New Tkial. 1. Every motion for a new trial or to set aside a verdict, finding, or Motion for judgment, shall be made (1) in every cause or matter by the principal "^'^t™^- Act assigned to the Probate, Divorce and Admiralty Division, where there has been a trial thereof or of any issue therein with a jury, to a Divisional Court of that Division, one of the judges of which shall (when practicable) sit on the hearing of such motion ; (2) in every other cause or matter, where there has been a trial thereof or of any issue therein with a jury, to a Divisional Court of the Queen's Bench Division ; and (3) where there has been a trial without a jury, by appeal to the Court of Appeal («). (v) Wlere an action has been tried by a County Court judge without a jury, the application must be made to the Divisional Court, and not to the Court of Appeal (Swansea Building Society v. Davies, 12 Q. B. D. 21). 442 RULES OP THE SUPREME COURT, 1883. 0. XXXIX. 2. No judge shall sit on the hearing of any motion for a new trial 7T in any cause or matter tried with a jury hefore himself. ABplioation ^" ^^^ry application for a new trial shaR be by notice of motion, for new trial and no rule nisi, order to show cause, or formal proceeding other than of motf ^°*^'^^ such notice of motion, shall be made or taken. The notice shall state the grounds of the application, and whether all or part only of the verdict or findings is complained of. Notice of 4. The notice of motion shall be an eight days' notice, and shall be served within the times following : viz., if the trial has taken place in London or Middlesex, within eight days after the trial ; if the trial has taken place elsewhere than in London or Middlesex, within seven days after the last day of sitting on the circuits for England and "Wales during which the trial shall have taken place. The time of the vaca- tions shall not be reckoned in the computation of the time for serving the notice of motion. Amendment. 5. The notice may be amended at any time by leave of the Court or a judge on such terms as the Court or judge may think just. Grounds for 6. A new trial shall not be granted on the ground of misdirection toJ ^ ^^^ "^ °-^ ^^ improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a questioii which the judge at the trial was not asked to leave to them, unless in the opinion of the Oburt to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial ; and if it appear to such Court that such wrong or miscarriage affects part only of the matter in controversy, or some or one only of the parties, the Court may give final judgment as to part thereof, or some or one only of the parties, and direct a new trial as to the other part only or as to the other party or parties (w). (w) As to the practice of the Court of Chancery in granting new trials of issues, see Daniell, p. 757 et aeq. This rule applies to a motion in the High Court for a new trial in a County Court action [Shapcott v. Chappell, 12 Q. B. D. 58). New trial on 7. A new trial may be ordered on any question, whatever be the sraie question gj-Qunds for the new trial, without interfering with the finding or decision upon any other question. Stamping not 8. A new trial shall not be granted by reason of the ruling of any ^ o^d ^''^ jii^gs that the stamp upon any document it sufficient, or that the document does not require a stamp. OEDER XL. Motion i'or Judgment. Motion for 1. Except where by the Acts or by these rules it is provided that ]u gmeu . judgment may be obtained in any other manner, the judgment of the Court shall be obtained by motion for judgment {x). Motion for [x] The following notice was issued in 1876 as to the hearing of motions for judg- judgment to ment and of short causes — te set down in "The Master of the Rolls and the Vice-Chancellors have given directions that RULES OP THE SUPEEME OOUET, 1883. 443 " motions for judgment in actions shall not be brought on as ordinary motions but Ord. XL. " shall be set down in the cause book. ^ " They can be marked short on. production of the usual certificate of ooimsel, and cause book, ' ' will then be placed in the paper on the first short cause day after the day for which but can be " notice is given. If not marked short, they will come into the general paper in heard as " their regular turn. short cause. "It will be advisable that the notices of motion for judgment should, if it is in- " tended to mark them short, contain a statement to that effect, and also a state- " ment that no further notice will be given of their having been so marked. Such " statement will dispense with the necessity for giving defendants further notice " that motions for judgment have been marked short. ' ' Where a defendant makes his defence and the plaintifE moves under Ord. XL. " r. 11 [now Ord. XXXII. r. 6, ««*«, p. 395], for such order as he is entitled to on " the admissions of the defendant, the action need not be set down, but if, on the ' ' motion being made it appears that there must be a discussion or argument, it may "be ordered to go into the general paper subj eot to any order for its being advanced. ' ' See W.N. (1877), p. 88 (Pt. IL) ; Seton, p. 38. An action for the rectification of a settlement will not be heard as a short cause {CUnnell v. Clennell, W. N. (1884), 14). . ' _ " In order to set the motion down a copy of the notice of motion must, if the " action is proceeding in London, be produced to the ofScer of the registrar's office " of the Royal Courts of Justice, and two printed copies of the pleaifings must, at " the same time, be deUvere* to him, one for the use of the judge at the trial and " the other for the use of the registrar. The copy of the notice of motion produced " to the officer is retained by him, and should be indorsed with a memorandum " signed by the solicitor of the party setting down the motion that a guardian ad ' ' litem has been appointed for any infant defendant, or that there is not any infant "defendant" (Daniell, 666). 2. Where at tlie trial the judge or referee abstains from directing Setting down any judgment to be entered, the plaintiff may set down a motion for ™° '"'■ judgment. If he does not set down such a motion and give notice thereof to the other parties within ten days after the trial, any defen- dant may set down a motion for judgment, and give notice thereof to the other parties. 3. "Where, at or after a trial with a jury, the judge has directed that Setting aside any judgment he entered, any party may apply to set aside such judg- j^p^™* *°'' ment and enter any other judgment, on the ground that the judgment entry of find- directed to he entered is wrong by reason that the finding of the jury ™^ °* J"^- upon the questions submitted to them has not been properly entered. 4. "Where, at or after a trial by a judge, either with or without a For eniry of jury, the judge has directed that any judgment be entered, any party ^°^^ J^*^^' may apply to set aside such judgment and to enter any other judgment, upon the ground that, upon the finding as entered, the judgment so directed is wrong. 5. An application under rules 3 and 4 of this order shall be to the AppUoation, Court of Appeal, unless, where there has been a trial with a jury, q^^** there is also a motion for a new trial, in which case it shall be to the Divisional Court by which such motion shall be heard. 6. "Where at a trial by a referee he has directed that any judgment Trial by be entered, any party may move to set aside such judgment, and to ^^ ^^' enter any other judgment, on the ground that upon the finding as entered the judgment so directed is wrong : Provided that in the Queen's Bench Division such motion shall be made to a Divisional Court. 1' Where issues have been ordered to be tried, or issues or questions Setting down , . ,1 1 ■ i-/3! J. 3 motion after of fact to be determined in any manner, the plamtitt may set down a ^j^^ ^f -^^^^ 444. RULES OF THE SUPEBME COURT, 1883. Ord. XL. Setting do'vsrn motion before trial of issues. Motion to be set doivn within one year. Powers of Court on a motion for judgment. motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion, and give notice thereof to the other parties within ten days after his right so to do has arisen, then after the expiration of such ten days any defendant may set down a motion for judgment, and give notice thereof to the other parties. 8. Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or determination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the Court or a judge for leave to set down a motion for judgment, without waiting for such trial or determination (y). And the Court or judge may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of ihe other issues of fact. {y) Such leave is not given unless it is certain what issues are necessary to the decision of the action {Mepublie of Bolivia y. National Bolivian Navigation Co., 24 W. R. 361). 9. No motion for judgment shall, except by leave of the Court or a judge, be set down after the expiration of one year from the time when the party seeking to set down the same first became entitled so to do. 10. Upon a motion for judgment, or upon an application for a new trial, the Court may draw aU. inferences of fact, not inconsistent with the finding of the jury, and if satisfied that it has before it aU the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accord- ingly, or may, if it shall be of opinion that it has not su£B.cient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it may think fit (z). (2) Where there is no further question of law to be tried, further consideration will not generally be reserved a second time in Court, but liberty will be given to apply in chambers {Gilbert v. Bmaell, W. N. (1875), 225). OEDEE XIJ. Entry of Judgment. Entry of 1- Every judgment shall be entered by the proper officer in the book judgment. tg be kept for the purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings in the cause, other than any petition or summons; such copy shall be in print, RULES OP THE SUPREME COURT, 1883. 445 except such parts (if any) thereof as are by these rules permitted to he Ord. XLI. "written : Provided that no copy need be delivered of any document a copy of which has been dehvered on entering any previous judgment in such cause. The Forms in Appendix F. shall be used, with such variations as circumstances may require (a). (a) An order of which there was no entry and the original of which was lost was directed to be redrawn {Hx parte Dean of St. Paul's, W. N. (1870), 93 ; 18 W. K. 724 ; and see Smsell v. Tapping, 3 W. R. 379). For these forms, see infra. [Ride 2 applies only to the Queen's Bench Division.] 3. "Where any judgment is pronounced by the Court or a judge in Date of entry Court, the entry of the judgment shall be dated as of the day on which menrpro-^' such judgment is pronounced, unless the Court-or judge shall other- nounoed in wise order, and the judgment shall take effect from that date (J) : ^°"^- Provided that by special leave of the Court or a judge a judgment may be ante-dated or post-dated (c). (i) See Re Sisca Coal Co., 10 W. R. 701. (c) As to ante-dating or post-dating orders, see Turner v. Zondon $ South Western Sy., 17 Eq. 661 ; Winkley v. Winkley, 29 W. R. 629 ; 44 L. T. 672 ; Daniell, 810 ; Seton, 1546. In the former case the plaintiflE died after hearing but hef ore judgment, and the Court dated the judgment as of the date of the hearing, 4. In all cases not within the last preceding rule, the entry of judg- In other ment shall be dated as of the day on which the requisite documents are ''*^^^- left with the proper oflcer for the purpose of such entry, and the judgment shall take effect from that date. 5. Every judgment or order made in any cause or matter requiring Order to do any person to do an act {d) thereby ordered shall state the time, or the ^P ^* *° ■''™'* time after service of the judgment or order, within which the act is to formanoe. be done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same there shall be indorsed a memorandum in the words or to the effect id) following, viz. : — " If you, the within-named A. B., neglect to obey this judgment [or indorsement, order] by the time therein limited, you wOl be Hable to process of execution for the purpose of compelling you to obey the same judgment lor order] " {dd). {d) See Trekerne v. Bale, 27 Ch. D. 66. [dd) This rule is taken from Cons. Ord. XXIII. r. 10, as varied by Ord. 7 Jan. 1870, rule 1 (L. R. 5 Ch. xxxiii.) ; it applies to an order which may be served on the solicitor of the party (Sampden v. Wallis, 26 Ch. D. 746). If the order omits to fix a time the Court on motion will make a supplemental order for that purpose (Needham v. Needham, 1 Ha. 633 ; Morley v. Clavering, 30 Beav. 108 ; Gilbert v. Endean, 9 Oh. D. p. 266) ; "forthwith " is a sufficient expression of time [Thomas T. Nokes, 6 Eq. 521 ; Re Nowell, 11 W. R. 896). Where the order names a day for doing the act and does not merely limit a time after service for that purpose, it must be served before the . day named [Adkins v. Sliss, 2 De G-. & J. 286) ; if the service cannot be effected before that day an order must be obtained enlarging the time, or fixing a new period where the day ap- pointed has passed {DuffieUr. JEluies, 2 Beav. 268) ; and such further order must be endorsed and served like the original order (Adkins v. Bliss). Substituted service of the judgment or order may be permitted if a proper case can Service, be shown, the order for which is obtained on ex parte motion ; see Daniell, p. 878 ; and see Ord. IX. and notes thereto, ante, p. 316, and Ord. LXVII. infra, as to service generally. 446 RULES OP THE STJPEEME COTIRT, 1883. Ord. XLI. Entry of judgment on filing of affi- davit or pro- duction of document. Entry of judgment pursuant to order or cer- tificate. Certificate of amount of judgment to be filed. Entry of judgment by consent "where defendant has appeared by sofioitor. Where de- fendant has not appeared, or appeared in person. 6. "Wiere under the Acts or these rules, or otherwise, it is provided that any judgment may be entered upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced, and if the same be regular and contain all that is by law required, he shall enter judgment accordingly. 7. Where by the Acts or these rules, or otherwise, any judgment may be entered piirsuant to any order or certificate, or return to any •writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be a sufficient authority to the officer to enter judgment accordingly. 8. Where reference is made to a master to ascertain the amount for ■which final judgment is to be entered, the master's certificate shall be filed in the central office when judgment is entered. 9. In any cause or matter where the defendant has appeared by solicitor, no order for entering judgment shall be made by consent unless the consent of the defendant is given by his solicitor or agent. 10. Where the defendant has not appeared, or has appeared in person, no such order shall be made unless the defendant attends before a judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister, conveyancer, special pleader, or solicitor. OEDEE XLH. Execution. 1. Where any person is by any judgment or order directed to pay any money, or to deliver up or transfer any property real or personal to another, it shall not to be necessary to make any demand thereof, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand (e). (e) This rule is taken from Cons. Ord. XXLX. r. I. As to whether the service should be personal or not, see Me a Solicitor, TV. N. (188i), 217. See, however, note (s) to r. 17, post, p. 449. 2. Where any person who has obtained any judgment or order upon condition does not perform or comply with such condition, he shall be considered to have waived or abandoned such judgment or order so far as the same is beneficial to himself, and any other person interested in the matter may on breach or non-performance of the condition take either such proceedings as the judgment or order may in such case warrant, or such proceedings as might have been taken if no such judgment or order had been made, unless the Court or a judge shall otherwise direct (/). (/) This rule is taken from Cons. Ord. XXIII. r. 22. Judgment for 3. A judgment {g) for the recovery by or payment to any person of recovery of money may be enforced by any of the modes by which a judgment or decree for the payment of money of any Court whose jurisdiction is No demand necessary when money ordered to be paid, or pro- perty to be delivered up or transferred. Non-perform- ance of con- dition on which judg- ment, &c. has been obtained. EULE3 OP THE SUPREME COURT, 1883. 447 traasferred by the principal Act (A) might have been enforced at the Ord. XLII. time of the passing thereof (j). (?) "Judgment" includes "decree" (Judicature Act, 1873, s. 100); and orders "Judgment." may be eidoroed in the same way as judgments to the same effect (rule 24, i>ost, p. 451, and note thereto). (A) "The. principal Act" means the Judicature Act, 1873 (Ord. LXXI. r. 1, "Principal infra). Act." (i) There were five different modes of enforcing a judgment for money, viz.: — Former modes (1^ By -writ oiji.fa. or ekgit ; (2) by sequestration ; (3) by attachment of debts; of enforcing (4) by attachment or committal for six weeks ia cases allowed by the Debtors Act, judgment. 1869; (5) by proceeding under the Judgment Acts. As to the Debtors Act, see ante, p. 187 et seq.; and as to execution generally, see Daniell, 823 ; Seton, 1555. 4. A judgment for the payment of money into Court may be en- For payment forced by writ of sequestration, or in cases in which attachment is Qq^'^^''^ ° authorised by law, by attachment (/c). (Je) As to sequestration, see Ord. XLIII. r. 6, post, p. 454 ; and as to attachment, see Ord. XLIV., post, p. 455. A judgment for payment df money into Court may also be enforced by the ap- poinhuent of a receiTer [Stanger Leathes v. Stanger Leathes, W. N. (1882), 71). 5. A judgment for the recovery or for the delivery of the possession For recovery of land may be enforced by writ of possession [1). o an . [l) As to the writ of possession, see Ord. XL VII., post, p. 462. An order "for foreclosure absolute is not a judgment for the recovery of land within the meaning of this rule {Wood v. WTieater, 22 Ch. D. 281). 6. A judgment for the recovery of any property other than land or por recovery money may be enforced : f^^^^ (a.) By writ for dehvery of the property : money or (b.) By writ of attachment : l«^d- (c.) By writ of sequestration (m). (»») As to these writs, see Ord. XLVIII., post, p. 463 ; Ord. XLIV., post, p. 455 ; and Ord. XLIII. r. 6, post, p. 454. 7. A judgment requiring any person to do any act other than the to do,aot payment of money, or to abstain from doing anything, may be en- "^'^^^g^^f forced by writ of attachment, or by committal. money, or to 8 In these rules the term "writ of execution" shall include writs abstain from , J n doing any- of fieri facias, capias, elegit, sequestration, and attachment, and all thing. subsequent writs that may issue for giving effect thereto. And the Definition of term " issuing execution against any party" shall mean the issuing of g'^'^^j"^ „ any such process against his person or property as under the preced- and "issuing ing rules of this order shall be applicable to the case. raSst°an 9. Where a judgment or order is to the effect that any party is party." entitled to any relief subject to or upon the fulfilment of any condition Where judg- or contingency, the party so entitled may, upon the fulfihnent of the ^^^^^^P""" condition or contingency, and demand made upon the party against whom he is entitled to reUef, apply to the Court or a judge for leave to issue execution against such party. And the Court or judge may, Leave to issue if satisfied that the right to relief has arisen according to the terms of execution. the judgment or order, order that execution issue accordingly, or may 448 Hf LES OP THE Sf PRBME COURT, 1888. Bzecution against part- nership £xm. Ord. XLII. direct that any issue or question necessary for the determination of " the rights of the parties be tried in any of the ways in which questions arising in an action may be tried. 10. Where a judgment or order is against a firm, execution may issue : (a.) Against any property of the partnership ; (b.) Against any person who has appeared in his own name under Ord. XII. r. 15, or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner ; (c.) Against any person who has been served, as a partner, with the writ of summons, and has failed to appear. If the party who has obtained judgment or an order claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court or a judge for leave so to do ; and the Court or judge may give such leave if the liability be not disputed, or if such liability be disputed, may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined (ra). (») Where a firni is sued in the firm's name the judgment must be against the firm, and cannot be separately entered against one partner who has failed to appear {Jackson v. ZitehfieU, 8 Q. B. D. 474). But where judgment has been recovered against the firm the plaintiff may bring an action on the judgment against any individual member [Clarlc v. Gullm, 9 Q. B. D. 355). See further, as to execution against partners, Davis v. Morris, 10 Q. B. D. 436 ; Munster v. Eailton, 10 Q. B. D. 475 ; 11 Q. B. D. 435, reversing the decision below ; Sx parte JBlain, 12 Ch. D. 522 ; ^x parte Tormg, 19 C!h. D. 124. 11. No writ of execution shall be issued without the production to the officer by whom the same should be issued of the judgment or order upon which the writ of execution is to issue, or an office copy thereof, showing the date of entry. And the officer shall be satisfied that the proper time has elapsed to entitle the creditor to execution. 12. No writ of execution shall be issued without the party issuing it, or his solicitor, filing a praecipe for that purpose. The prcecipe shall contain the title of the action, the reference to the record, the date of the judgment, and of the order, if any, directing the execution to be issued, the names of the parties against whom, or of the firm against whose goods, the execution is to be issued ; and shall be signed by or on behalf of the solicitor of the party issuing it, or by the party issuing it, if he do so in person. The Forms in Appendix C shall be used, with such variations as circumstances may require (o). (o) For these forms, see ir^fra. - Name of] 13. Every writ of execution shall be indorsed with the name and part7*sn^ff place of abode or office of business of the solicitor actually suing out out writ to be the same, and when the solicitor actually suing out the writ shall sue writ™^^ °^ °^* *^® ^^'^^ *® agent for another solicitor, the name and place of abode of such other solicitor shall also be indorsed upon the writ ; and in case no solicitor shall be employed to issue the writ, then it shall be indorsed with a memorandum expressing that the same has been sued Issue of writ of execution. Freeeipe for writ. RULES OP THE SUPREME COURT, 1883. 449 out by the plaintiff or defendant in person, as the case may be, Ord. XLII. mentioning the city, town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff's or defendant's residence, if any such there be. 14. Every writ of execution shall bear date' of the day on which it Date of issue. is issued. The Forms in Appendix H. shall be used, with such variations as circumstances may require {p). (p) For these forms, see infra. For a variation in the form see Solton v. Bolton, Form of writs. 3 Oh. D. 276 ; and see also Ft/man v. JBurt, W. N. (1884), 100. 15. In every case of execution the party entitled to execution may Expenses of levy the poundage, fees, and expenses of execution, over and above ^^^^^^o'^- the sum recovered (y). (g) A sheriff who recovers a judgment debt by compulsion of a Ji. fa. is entitled Poundage, to poundage, though he is paid out without a sale of any of the goods seized {Mortimore v. Cra^ff, 3 C. P. D. 216, overruling Moe v. Hammond, 2 C. P. D. 300) ; but there must have been an actual seizure (Bissicks v. Bath Colliery Company, 3 Ex. D. 174). See also Re Craycraft, 8 Oh. D. 696 ; Ex pa/rte Lithgow, 10 Ch. D. 169 ; Sneary v. Abdy, 1 Ex. D. 299 ; Nash v. Dickenson, L. R. 2 C. P. 252. 16. Every writ of execution for the recoverj' of money shall be Writ for indorsed with a direction to the sheriff, or other officer or person to recovery of -1 1 . . T T money to whom the writ is directed, to levy the money really due and payable state amount and sought to be recovered under the judgment or order, stating the *^* mterest. amount, and also to levy interest thereon, if sought to be recovered, at the rate of 41. per cent, per annum from the time when the judgment or order was entered or made, provided that in cases where there is an agreement between the parties that more than 4:1. per cent, interest shall be secured by the judgment or order, then the indorsement may be accordingly to levy the amount of interest so agreed (r). (>•) The writ should be delivered to the sheriff and not to the sheriff's officer {Triminyer v. Keme, W. N. (1882), 106). The costs of an action in the absence of any special order bear interest from the date of the judgment and not from the date of the aUooatur only (Fyman v. Stirt, W. N. (1884), 100). 17. Every person to whom any sum of money or any costs shall be When execu- payable under a judgment or order shall, so soon as the money or qj. ^^^^ may costs shall be payable, be entitled to sue out one or more writ or writs 'be issued. . 319 ; 30 W. R. 76. And see next rule. 6. After hearing the allegations of any third person under such Determina- order, as in rule 5 mentioned, and of any other person whom by the tions°where" same or any subsequent order the Court or a judge may order to third party appear, or in case of such third person not appearing when ordered, "^t^'^^sted. the Court or judge may order execution to issue to levy the amount due from such garnishee, or any issue or question to be tried or determined according to the preceding rules of this order, and may bar the claim of such third person, or make such other order as such Court or judge shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the Court or judge shall think just and reasonable (m). (m) An order made by consent uiider this rule is final {Eade v. Winser, 47 L. J. Q. B. 584). 7. Payment made by or execution levied upon the garnishee under Garnishee any such proceeding as aforesaid shall be a valid discharge to him as pa-^^^or^"'' against the debtor, liable under a judgment or order, to the amount execution. 458 Ord. XLV. Debt attach- ment book. JIULES OF THE SUPKEME COUET, 1883. paid or levied, although such proceeding may be set aside, or the judgment or order reversed (n). (»») The provisions of this rule do not apply to a conditional debt [Sowell r. Metropolitan Ey., 19 Ch. D. 508). 8. There shall be kept by the proper officer a debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise ; and copies of any entries made therein may be taken by any person upon application to the proper officer. 9. The costs of any application for an attachment of debts, and of any proceedings arising from or incidental to such application, shall be in the discretion of the Court or a judge. Charging order. 1 & 2 Vict. c. 110, s. 14. Charging order. 3 & 4 Vict, c. 82, s. 1. Provisions extended to contingent interest and to stock in Court. OEDEE XLVI. Chaeging Orders, Distringas, aud Stop Oedees. 1. An order charging stock or shares may be made by any Divisional Court or by any judge, and the proceedings for obtaining such order shall be such as are directed, and the effect shall be such as is pro- vided, by the Acts 1 & 2 Vict. c. 110, ss. 14 and 15, and 3 & 4 Yict. c. 82, s. 1 (o). (o) The following are the sections referred to : — XIV. " And be it enacted, that if any person against whom any judgment shall " have been entered up in any of her Majesty's superior Courts at 'Westminster ' ' shall have any government stock, funds, or annuities, or any stock or shares of " or in any public company in England (-whether incorporated or not), standing in ' ' his name in his OTvn right, or in the name of any person in trust for him, it shall " be lawful for a judge of one of the superior ComH;s, on the application of any " judgment creditor, to order that such stock, funds, annuities, or shares, or " such of them or such part thereof respectively as he ^all think fit, shall stand " charged with the payment of the amount for which judgment shall have been so " recovered, and interest thereon, and such order shall entitle the judgment creditor " to all such remedies as he would have been entitled to if such charge had been ' ' made in his favour by the judgment debtor ; provided that no proceedings shall " be taken to have the benefit of such charge untU after the expiration of six " calendar months from the date of such order." I. " The aforesaid provisions of the said Act [i. c , 1 & 2 Vict. c. 110, s. 14) shall ' ' he deemed and taken to extend to the interest of any judgment debtor, whether " in possession, remainder, or reversionj and whether vested or contingent, as well " in any such stocks, funds, annuities, or shares as aforesaid as also in the divi- ' ' dends, interest, or annual produce of any such stock, funds, annuities or shares ; " and whenever any such judgment debtor shall have any estate, right, title or " interest, vested or contingent, in possession, remainder, or reversion, in, to, or " out of any such stocks, funds, annuities or shares as aforesaid, which now are, or " shall hereafter, be standing in the name of the Accountant- General of the Court " of Chancery, or the Aooountant-General of the Court of Exchequer, or in, to, " or out of the dividends, interest, or annual produce thereof, it shall be lawful ' ' for such judge to make any order as to such stock, funds, annuities, or shares, " or the interest, dividends, or annual produce thereof, in the same way as if " the same had been standing in the name of a trustee of such judgment debtor : " Provided always, that no order of any judge as to any stock, funds, annuities, or " shares standing in the name of the Aooountant-General of the Court of Chancery ' ' or the Accountant-General of the Court of Exchequer, or as to the interest, divi- " dends, or annual produce thereof, shall prevent the Governor and Company of the ' ' Bank of England, or any pubUo company, from permitting any transfer of such " stocks, funds, annuities, or shares, or payment of tiie interest, dividends, or annual " produce thereof, in such manner as the Court of Chancery or the Court of Ex- " chequer respectively may direct, or shall have any greater effect than if such RULES OP THE SUPREME COURT, 1883. 459 " debtor had charged such stock, funds, annuities or shares, or the interest, divi- Ord. XLVT. '' dends, or annual produce thereof, in favour of the judgment creditor, -with the " amount of the sum to be mentioned in any such order." XV. " And in order to prevent any person against whom judgment shall have 1 & 2 Vict. " been obtained from transferring, receiving or disposing of any stock, funds, 0. 110, s. 15. " annuities, or shares hereby authorised to be charged for the benefit of the judg- Orderof judge " ment creditor under an order of a judge, be it further enacted, that every order to be made in " of a judge charging any government stock, funds, or annuities, or any stock or the first in- I' shares in any public company, under this Act, shall be made in the first instance stance ex " ex parte, and without any notice to the judgment debtor, and shall be an order to parte, and show cause only ; and such order, if any government stock, funds, or annuities standing in the name of the judgment debtor in his own right, or in the name of " any person in trust for him, is to be affected by such order, shall restrain the interim ' ' Governor and Company of the Bank of England from permitting a transfer of such restraint of ' ' stock in the meantime and until such order shaU be made absolute or discharged ; transfer by and if any stock or shares of or in any public company, standing in the name of company, &c. " the judgment debtor in his own right, or in the name of any person in trust for " him.is or are to be affected by any such order, shall in like manner restraia such " public company from permitting a transfer thereof ; and that if, after notice of " sudi order to the person or persons to be restrained thereby, or in case of oorpo- ' ' rations to any authorised agent of such corporation, and before the same order " shall be discharged or made absolute, such corporation or person or persons shall " permit any such transfer to be made, then and in such case the corporation or ' ' person or persons so permitting such transfer shall be liable to the judgment " creditor for the value or amount of the property so charged and so transferred, or ' ' such part thereof as may be sufficient to satisfy his judgment ; and that no dis- " position of the judgment debtor in the meantime shall be valid or effectual as " against the judgment creditor; and further, that, unless the judgment debtor ' ' shall within a time to be mentioned in such order show to a judge of one of the ' ' said superior Courts sufficient cause to the contrary, the said order shall, after " proof of notice thereof to the judgment debtor, his attorney or agent, be made ' ' absolute : provided that any such judge shall, upon the application of the judg- ' ' ment debtor, or any person interested, have f uU power to discharge or vary such " order, and to award such costs upon such application as he may think fit." The duties of the accountant-general are now performed by the paymaster- Accountant- general ; see Chancery Funds Act, 1872, ss. 4, 6, ante, p. 204. general. An application for a charging order is made by summons (Daniell, 939) ; and 4,„,ij(,„j.;„j, must be supported by evidence- of the title of the applicant to the debt and of the j^^ made ' debtor's title to the property sought to be charged (iiirf.). The order may be made by any judge of the High Court ; see Supewell v. Barnes, 1 Ch. D. 630. As to the charging of contingent interests, see Cragg v. Taylor, L. R. 2 Ex. 131 ; Contingent Dixon V. Wrench, L. R. 4 Ex. 154 ; South Western Loan Co. v. Bobertson, 8 Q. B. D. interests. 17 ; 30 W. R. 102, where it was held that stock is none the less chargeable because it is standing in the name of a trustee for other persons besides the judgment debtor. It does not follow from sect. 14 of the Act that collateral proceedings may not Six months' be instituted before the six months expire [Bristei v. Wilkins, 3 Hare, 235, 239) ; rule. e.g., a, stop order may be obtained [Watts v. Jefferys, 3 M. & Gr. 372; and see Welh V. Gibbs, 22 Beav. 204). When the order is made absolute, the bank or public company, which is bound Effect of by the statute to hold its hand during the pendency of the order nisi, will no longer interim and be bound to take notice of the charge, unless the judgment creditor has instituted absolute order an action or taken some other steps (see Seeee v. Taylor, 13 Sim. 480), but must on the 00m- pay the dividends to the persons legally entitled thereto as before the charging pany or the order was made, and his receipt will discharge the company [Churchill v. BanJe of bank. England, 11 M. & W. 323 ; Bristed v. Wilkins, 3 Hare, 235). Such person will be bound, the order having been made absolute, to give effect to the charge on the stock or shares, and the bank or company is no longer concerned with the questions arising between the judgment creditor and other persons interested. Nothing which has taken place subsequent to the original charging order is a Order, when sufficient cause to prevent its being made absolute ; therefore, where a decree had to be made been made for administration of the debtor's estate subsequently to the order nisi, absolute, an injunction to restrain the creditor from applying to have the order made abso- lute was refused [Ealy v. Barry, 3 Oh. 452 ; Scott v. Lord Saatings, 1 K. & J. 633) ; but if the debtor had assigned the property before the original charging order was made, the creditor does not by such order obtain even an inchoate right ( Warburton V. Mil, Kay, 470, as explained in Saly v. Barry) ; and see Mobinson v. JtSTeaUtt, L. R. 3 0. P. 264, overruling Watts v. Porter, 3 E. & B. 743. A charo-ino- order has no greater effect than an instrument of charge executed by the jiSgment debtor would have had [Re Onslow, 20 Eq. 677) ; and separate 460 RULES OF THE SUPEEME COURT, 1883. Ord. XLVI. Charging order for costs. Jjistringas abolished. Definition of "company" and "stock." Service of affidavit and filed notice on company. Name and address of claimant to he given. Service of notices on claimant. Alteration of address. Service of affidavit and filed notice to have the effect of distringas. Eflfeot of distringas. proceedings are still necessary to enforce it as before the Judicature Acts [Leggott V. Wcstern,_ 12 Q. B. D. 287). A charging order cannot be made absolute when it appears that the judgment debtor was dead when the order nisi was obtained (Finney v. Hinde, 4 Q. B. D. 102 ; 27 "W. R. 413 ; 40 L. T. 193). A charging order for costs cannot be obtained till the costs have been taxed ( IVidgery v. Tepper (C. A.), 6 Ch. D. 364 ; 25 W. R. 872 ; 37 L. T. 297 ; Jones v. Wtlliams, 8 M. & W. 349) ; Sums v. Irving, 3 Ch. D. 291, has not been followed. A charging order cannot afiect the income of a fund to which a married woman is entitled for her separate use without power of anticipation {Stanley v. Stanley,, 7 Ch. D. 589). 2. No writ of distringas shall hereafter be isBued imder the Act 5 Vict. c. 5, s. 5. 3. In the following rules of this order the expression " company" includes the Governor and Company of the Bank of England and any other public company, whether incorporated or not, and the expression " stock" includes shares, securities, and money. 4. Any person claiming to be interested in any stock standing in. the books of a company may, on an affidavit by himself or his solicitor in the Form No. 27 in Appendix B., with such variations as circum- stances may require, and on filing the same in the central office with a notice in the Form No. 22 in the same Appendix, with such varia- tions as circumstances may require, and on procuring an office copy of the affidavit and a duplicate of the filed notice authenticated by the seal of the central office, serve the office copy and duplicate notice on the company {p). (p) Eor these forms, see infra. 6. There shall be appended to the affidavit a note stating the person on whose behalf it is filed, and to what address notices (if any) for that person are to be sent. 6. All such notices shall be deemed to have been duly sent if sent through the post by a prepaid letter directed to that person at the address so stated or at any such substituted address as hereinafter mentioned, whether the person to whom the notice is sent is living or not. 7. The address so stated may, from time to time, be altered by the person by or on whose behalf the affidavit is filed, but no notice sent by post before the alteration to the address originally given or for the time being substituted therefor shaU be affected by any subsequent alteration. Any such alteration of address may be made by service of a memorandum thereof on the company in the manner required for service of a notice under this order. 8. The service of the office copy of the affidavit and of the duplicate of the filed notice shall have the same force and effect against the company as a writ of distringas duly issued under the Act 5 Yiet. c. 5, s. 5, would have had against the Bank of England if these' rules had not been made {q). [q) As to the effect of a distringas, see Re Marquis of Sertfoi-d, 1 Ha. 584 ; WilMns \. Sibley, 4 Giffi. 442; 9 Jur. N. S. 388. The effect of it is to prevent the stock being dealt with without notice to the person putting on the distringas. RULES OF THE SITPEEME COURT, 1883. 461 9. A notice filed under rule 4 of this order may at any time be Ord. XLVI. ■withdrawn by the person by whom or on whose behalf it was given on -wittdrawal a written request signed by him, or its operation may be made to cease °* potioe by Dy an oraer to be obtained by motion on notice or by petition or by summons at chambers duly served by any other person claiming to be interested in the stock sought to be afEected by the notice. 10. If, whilst a notice filed under rule 4 of this order continues in Companyoan- force, the company on whom it is served receive from the person in ^e^l with the whose name the stock specified in the notice is standing, or from some stock for more person acting on his behalf or representing him, a request to permit ^gt^ after the stock to be transferred or to pay the dividends thereon, the com- request, pany shall not, by force or in consequence of the service of the notice, be authorized, without the order of the Court or a judge, to refuse to permit the transfer to be made or to withhold the payment of the dividends for more than eight days after the date of the request (r). (r) This rule is taken from Cons. Ord. XXVII. r. 4. Where the bank gave notice that an application had been made to them to allow a trajisfer of the stock and to pay the dividends thereon, the Court, on ex parte motion to restrain the bank from, dealing with the stock, granted an interim injunction over the next motioil day, and directed notice of the order to be served on the legal owners of the stock {Re Blakaley, 23 Ch. D. 549). 11. If the person who files a notice under rule 4 of this order Description of desires to correct the description of the stock referred to in the filed r^ stock may ^ _ be corrected, notice, he may file an amended notice and serve on the company a duplicate thereof sealed with the seal of the central office, and in that case the service of the notice shall be deemed to have been made on the day on which the amended duplicate is so served. 12. Where any monies or securities are in Court to the general Costs occa- credit of anv cause or matter, or to the account of any class of persons, sioned by stop ■' ' J r 1 order on funds and an order is made 'to prevent the transfer or payment of such in Court. monies or securities, or any part thereof, without notice to the assignee of any person entitled in expectancy or otherwise to any share or portion of such monies or securities, the person by whom any such order shall be obtained on the shares of such monies or securities affected by such order shall be liable, at the discretion of the Court or a judge, to pay any costs, charges, and expenses which, by reason of any such order having been obtained, shall be occasioned to any party to the cause or matter, or any persons interested in any such monies or securities (s). (») This and the next rule are taken from Cons. Ord. XXVI. rr. 1, 2. As to stop orders generally, see Daniell, 1633 et seq., and cases there cited. A Stop orders, stop order gives no priority among charges eijual in degree {Warburton -v . Hill, Kay, 470 ; Greening v. Beekford, 5 Sim. 195 ; Swayne v. Swayne, 11 Beav. 463 ; Hulkes V. Bay, 10 Sim. 41 ; Lister v. Tidd, 4 Eq. 462 ; Ex parte Kent, 19 "W. R. 596) ; for by granting a stop order the Court decides nothing as to the rights and priorities of contending parties (Lwaa v. Peacock, 9 Beav. 118 ; Smvkesley v. Gowan, 12 W. R. 1100 ; and see Se Blunt, 10 W. R. 379). Trustees in bankruptcy who obtained no stop order were postponed to a mortgagee who obtained one after the bankruptcy (Stuart V. Gockerell, 8 Eq. 607) ; and see Palmer v. Locke, 18 Ch. D. 381. But a person who puts a stop order on a fund m Court obtams priority over a person who merely gives notice to the trustees, although the notice is given before 462 EULES OF THE SUPREME COURT, 1883. Costs of obtaining stop order. Application should be by summons. Prospective order. Ord. XLVI. the stop order is obtained {Pinmclc v. Sailey, 23 Ch. D. 497 ; 31 "W. R. 912) ; and see Mtitual Society v. LangUy, 26 Ch. D. 686 ; 32 "W. R. 792. Persons having claims on funds in Court are not entitled under all circumstances to the costs of obtaining a stop order {Grimsby v. Webster, 8 W. R. 725, but such costs were allowed in that case) ; and see Edwards v. Grove, 29 L. J. Ch. 839. But the mortgagee of a fund in Court empowered by his mortgage deed to apply for a stop order, is entitled to the costs of his so doing ( Waddilme v. Tm/lor, 6 Ha. 307) ; he must, however, ask specially for them, or they will not be allowed by the taxing- master under the common order to tax the mortgagee's costs {ibid.). A trustee who, before paying into Court, became aware that a distringas had been placed on the fund, and omitted to mention the claim, was made personally liable for the assignee's costs of obtaining a stop order {Ee Allen, 40 L. T. 456). la Boole y. Roberts, 12 Jur. 108, an incumbrancer petitioning for a stop order, after notice that a petition bad been presented for payment out of the fund, was not allowed his costs. See also Milchnay v. Quie/ce, 6 Ch. D. 553. The application for a stop order should be made by summons ( Wrench v. Wynne, 17 "W. R. 198 ; 38 L. J. Ch. 235 ; Wellesley v. Mornington, 41 L. J. Ch. 776 ; Walsh V. Wason, 22 W. R. 676 ; 30 L. T. 743), whether the assignor concurs or opposes ; the costs of a petition will be refused ( Walsh v. Wason) ; and in Wellesley v. Mornington the petitioner was ordered to pay the difference between the costs of obtaining the order on a summons at Chambers and the costs of the petition. But see Re Say, 49 L. T. 499 ; and see next rule. In Re Buke of Cleveland's Harte Estates, January 17, 1862, V.-C. Kindersley granted a prospective stop order, restraining the payment of funds hereafter to be paid in to a particular account ; but refused to make such a prospective order where there was no certainty that any fund would be brought into Court ( Wellesley v. Mornington, 11 W. R. 17). The operation of the order, though general in terms, is confined to the amount on which the order was founded {Maeleod v. Buchanan, 33 Beav. 234). Service on the assignor is necessary, though a party to the cause {Parsons v. Groome, 4 Beav. 621 ; Zevingerv, Crombie, 21 "W. R. 37 ; Re Nowell, 11 W. R. 896) ; but not on other parties to the cause {GlazbrooJc v. Gillatt, 9 Beav. 611) ; and see r. 13. Service of application for stop order. 13. Any person presenting a petition or taiing out a summons for any such order as aforesaid shall not -be required to serve such petition or summons upon the parties to the cause or matter, or upon the persons interested in such parts of the monies or securities as are not sought to be affected by any such order {t). {t) See note to rule 12. OEDEE XIjVII. Weit op Possession. Writ of 1 . A judgment or order that a party do recover possession of any possession. ;ia,nd may be enforced by writ of possession in manner before the com- mencement of the principal Act used in actions of ejectment in the superior Courts of common law(M). («) An order for forclosure absolute cannot be enforced by writ of possession {Wood V. Wheater, 22 Ch. D. 281). As to the writ of possession generally, see DanieU, 948. The old writ of assistance is superseded by this writ {Sail v. Sail, 47 L. J. Oh. 680). Suingoutwrit 2. Where by any judgment or order any person therein named is of possession, ^.irected to deliver up possession of any lands to some other person, the person prosecuting such judgment or order shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment or order and that the same has not been obeyed. EXILES OF THE SUPREME COUET, 1883. 463 3. Upon any judgment or order for the recovery of any land and Ord. XL VII. costs, there may he either one writ or separate writs of execution for Separate ivxits the recovery of possession and for the costs at the election of the for recovery successful party. airfOTooX. OEDEE XLVni. Writ of Delivery. 1. Where it is sought to enforce a judgment or order for the re- Enforcing covery of any property other than land or money by writ of delivery, forf^o^eir"' the Court or a judge may, upon the application of the plaintiff, order of property that execution shall issue for the delivery of the property, without ?^^f-' *^*^ , '' . "^ ^ "^ , land or money giving the defendant the option of retaining the property, upon paying by writ of the value assessed, if any, and that if the property cannot be found, 'lel'^ery. and unless the Court or a judge shall otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the sherifPs bailiwick, tiU the defendant deliver the property ; or, at the option of the plaintiff, that the sheriff cause to be made of the defendant's goods the assessed value, if any, of the property (v). (f) This rule is taken from sect. 78 of the C. L. P. Act, 1854. As to the writ of delivery generally, see Daniell, 952 ; Ivory v. CruicTcshank, W. N. (1875), 249 ; Chilton v. Carrington, 15 C. B. 730 ; Corhett v. Lewin, W. N. (1884), 62. 2. A writ of delivery shall be in the Form No. 10 in Appendix H.; Form of writ and when a writ of delivery is issued, the plaintiff shall, either by the ° ^ '^^^• same or a separate writ of execution, be entitled to have made of the defendant's goods the damages and costs awarded, and interest {w). (««•) For this form, see infra. OEDEE XLIX. Transfers astd Consolidation. 1. Causes or matters may be transferred from one division to Transfer of another of the High Court or from one judge to another of the Chancery Division by an order of the Lord Chancellor, provided that no transfer shall be made from or to any division without the consent of the President of the Division (a;). (x) When all parties consent the transfer will be made on a written application Transfers. to the Lord Chancellor's secretary, otherwise the application must be to the Lord Chancellor in Court {Mem. I Ch. D. 41). The Court of Appeal has no power to order a transfer from one judge to another of the same division (Re Eutley, 1 Ch. D. 11 ■ Ite Soyd, ib. 12). See also Hillman v. Mayhew, 1 Ex. D. 132 ; Smnphreys v. Mwards, W. N. (1875), 208; 45 L. J. Ch. 112; Solloway v. York, 2 Ex. D. 333; Storey v. Waddle, 4 Q. B. D. 289 ; Daniell, pp. 29, 1892. As to transfers from one division to another, see Metropolitan Inner Girele By. v. Metropolitam Ry., W. N. (1879), 193 ; China Steamship Co. v. Marine Inmrmce Co., W. N. (1881), 89. An action will be transferred from one judge of the Chancery Division to another whenever it appears to be convenient so to do ; see Cm-lewis v. Whidborne, 10 W. E. 261 ; Sideboitom v. Sidebottom, U W. E. 507 ; Corser v. Jones, 14 W. E. 704 ; Sayers v. Carrie, 9 Ch. 52. ... If the parties neglect to apply the judge wiU, on his attention being called to the propriety of a transfer, apply to the Lord Chancellor himself (Swale v. Swale, 22 Beav. 401). causes or matters. 464 RULES OP THE SUPREME COURT, 1883. Notice of application. Retrausfer of actions. Ord. XLIX. One clear day's notice should be given to the other parties to the suit by the party desiring to transfer [Sidebottom v. Sidebottom ; Bond v. Barnes, 2 De G-. E. & J. 387 ; Sumphreys v. Edwards, 45 L. J. Ch. U2 ; W. N. (1875), 208). Refusal on insufficient grounds to consent may be visited with costs {Cocq v. Sunasgeria Coffee Company, 4 Ch. 415) ; and see further, as to costs, Lyall v. Weldhen, 9 Ch. 287 ; Sayers v. Corrie ; Lucas v. Siggers, 7 Ch. 517. Where an action has been transferred by general order from one Court to another, a retransfer vrill not, without consent, be ordered where it will delay the hearing. Where it will not cause delay, the Court will give weight to the fact that the judge from whom it has been transferred has by means of interlocutory applications gained an acquaintance with the facts {Piatt v. Walter, 1 Oh. 471) ; but it wiU not take into consideration that such judge has decided a similar point in another case {Wilson \. Gray, UW.'R.m). Before an application for retransfer is made, notice must be given to the other side {Dennis v. Morris, 21 W. R. 43). A retransfer of a cause was asked for on the ground that Queen's counsel had advised in the cause before transfer and briefs had been delivered two months, but it was held that the reasons were not sufficient {Tiffin v. Farleer, 12 W. R. 698). Transfer for hearing or trial only. Transfer from one division to another. 2. In tte Chancery Division a transfer of a cause or matter from one judge to another may by the same or a separate order be ordered to be made or to be deemed to have been made for the purpose only of hearing or of trial, and in such case the original and any further hearing shall take place .before the judge to whom the cause or matter shall be so transferred; but aU other proceedings therein, whether before or after the hearing or trial of the cause or matter, shall be taken and prosecuted in the same manner as if such cause or matter had not been transferred from the judge to whom it was assigned at the time of transfer, and as if such judge had given or made the judgment or order, if any, therein, unless the judge to whom the cause or matter is transferred shall direct that any further proceedings therein, before or after the hearing or trial thereof, shall be taken and prosecuted before himself or before an official referee or special referee (y). {y) See, as to this rule. Cave v. Cave, W. N. (1880), 108 ; 28 W. R. 764 ; Forter v. West, W. N. (1880), 195 ; 29 W. R. 236 ; Lloyd v. Jones, 7 Ch. D. 390 ; ShoM) v. Brown, W. N-. (1881), 27. » 3. Any cause or matter may, at any stage, be transferred from one division to another by an order made by the Court or any judge of the division to which the cause or matter is assigned : Provided that no such transfer shall be made without the consent of the President of the Division to which the cause or matter is proposed to be transferred (z). (a) This rule refers only to a transfer from one division to another ( Chapman v. Real Property Trust, 7 Ch. D. 732). The order to transfer may be made without the consent of the President, but not the transfer itself {Sionphreys v. Edwards, W. N. (1876), 208 ; 45 L. J. Ch. 112). An action will be transferred to or from the Chancery Division whenever it is convenient to do so. Actions of the kind usually commenced in the Queen's Bench Division were transferred to the Chancery Division in the following oases : — Holloway v. York, 2 Ex. D. 333 ; SUhnan v. Mayhew, 1 Ex. D. 132 ; London Land Company v. Sarris, 13 Q. B. D. 540 (in eadi of which there was a counterclaim for specific performance) ; Young v. King, W. N. (1876), 11 ; Johnson v. Moffatt, ibid. 21 ; Holmes v. Sarvey, 25 W. R. 80. But in Storey v. Waddle, 4 Q. B. D. 289 ; Standard Discount Company v. Barton, 37 L. T. 581, the application to transfer was refused. See further, as to transfers from one division to another. Cannot \. Morgan, 1 Ch. D. 1 ; Humphreys \. Edwards 45 L. J. Ch. 112; W. N. (1875), 112; Bawkins v. Morgan, 49 L. J. Q. B. 618; EULES 01" THE SUPREME COURT, 188S. 465 The FuUca, W. N. (1880), 172 ; China Steamship Compaiw v. Marine Insurance Ord. XLIX. Company, W. N. (1881), 89 ; Ladd v. Pulesfon, W. N. (1883), 72. 4. A particTilax application in any cause or matter may by tlie direc- Order for tion of the Lord Chancellor be heard and disposed of by any judge of ^^^1^°^^ the High Court who shall consent so to do, to whatever division or a particular judge such cause or matter may have been assigned. judge. 5. "When an order has been made by any judge of the Chancery Transfer after Bivision for the winding-up of any company, or for the administration order for of the assets of any testator or intestate, the judge in whose Court or adnmiis- such winding-up or administration shall be pending shall have power, tration. without any further consent, to order the transfer to such judge of any cause or matter pending in any other Court or division brought or continued by or against such company, or by or against the executors or administrators of the testator or intestate whose assets are being so administered, as the case may be (o). (a) The words of this rule are wider than those of the corresponding; repealed rule, Ord. LI. r. 2a, and remove the difficulties experienced in Me National Fvmda Assurance Co., 25 W. E. 23; and Re Madras Irrigation Co., 16 Oh. D. 702, Over- ruling Ee Landore Co., 10 Ch. D. 489. See Ee Sharpe, "W. N. (1884), 28. An action against an executor personally may he transfeired (Ee Timins, W. N. (1878), 141 ; 26 W. E.. 692 ; Ee Stuhhs, 8 Ch. D. 154 ; but see Chapman v. Mason, W. N. (1879), 93). The application to transfer is made ex parte [Ee landore Co. ; Field -7. Field, W. N. Application, (1877), 98 ; Whitaker v. Robinson, W. N. (1877), 201 ; Ee Vhited Kingdom Telegraph how made. Co., 29 W. E. 332). 6. When any summons under Ord. LV. rr. 3, 4, shall have been Transfer of marked with the name of a judge other than the judge by rule 11 of ^.^^""^^ the same order prescribed, such last-mentioned judge shall, unless Ord. LV. cause shall appear to him to the contrary, without any further con- sent, order the transfer to such judge of the summons so improperly marked. 7. Any cause or matter transferred from any other division to the Causes, &c. Chancery Division, shaU, by the order directing the transfer, be ^g'oh^^iJ^ assigned to one of the judges of that division to be named in the Division to be J, assigned to a order. _ _ _ particular ■ 8. Causes or matters pending in the same division may be consoli- judge. dated by order of the Court or a judge in the manner in use before Consolidation the commencement of the principal Act in the superior Courts of ^^ttos!^ °^ common law (J). (b) This rule adopts the old oommon law practice with regard to the consolidation Consolidation of actions. An order to consolidate may be obtained where two or more actions of actions, are pending between the same plaintifE and the same defendant, or between the same plaintiff and different defendants, or between different plaintiffs and the same defendant, or between different plaintiffs and different defendants ; and whatever the nature of the actions. See Daniell, 1888 ; Chitty's Archbold, 1085 et seq. ; Amos v. Chadwiek, 4 Ch. D. 869 ; 9 Ch. D. 459 ; Eolden v. Silkstone Co., 30 W. R. 98 ; Teale v. Teale, W. N. (1882), 83 ; ffolmes v. Sarvei/, W. N. (1876), 276 (where the actions were in different divisions, and were transferred before being con- soUdated) ; Smith v. Whiehcord, 24 W. R. 900 ; Thomson v. South Eastern Ey., 9 Q. B. D. 320. , „ ^ ^ ,., , A defendant only, and not a plaintiff, can apply for an order to consolidate (Amos V. ChaOwick). After consolidation the several plamtiffs are m the same condition aa if they had originaUy been co-plaintiffs (Solden v. Silkstone Co.). M. ^^ 466 RULES OF THE STJPEEME COTJET, 1883- .Ord. ZLIX. , The application is made by motion or summons ; the other parties shouU he "--- served, and the notice of motion or. summons should he intituled in aU the actions (Daniell, 1889). Staying Where two suits were instituted for administration the Court stayed proceedings proceedings, in the second suit, although it prayed additional relief, on the defendant in the first suit undertaking not to offer opposition to any matters not covered by the original decree "which the judge in chambers might think fit to add thereto (Gwyer v. Feterson, 26 Beav. 83 ; Matthews v. Fahner, 11 W. R. 610) ; and in another case, instead of staying proceedings in the second suit, the Court ordered the two suits to be con- solidated, and the inquiries directed by the first decree to be extended [SosTcins v. Camphdl, 2 H. & M, 43 ; He WoHlay, i Ch. D. 180, which, however, is not accurately reported). See siiao Zambaeo y . Cassaveiti, 11 Eq. 439; Se Swire, 21 Ch. D. 647; Townsendv. Towmend,.2Z Ch. D. 100 ; Macrae v. Smith, 2 K. & J. 411 ; Lankester v. Wood, 14 li. *l. 512. In another case the Court stayed proceedings in the second suit only so far as the first suit gave identical relirf (Dry den v. Foster, 6 Beav. 146). Compare Fiffard-v, Vanrenen, 13 "W. R. 425 ; and for a case of consolidation of a large number of suits, see Foxwell v. Webster, 2 Dr. & Sm. 257 ; 12 W. E. 186 ; 4 De G. J. & Sm. 77. • OEDEE L. I. Intbelocutoet Obdebs as to Mandamtts Injunctions oe Inteeim Pbeseetation of Peopeett, &c. Order for pre servation or interim cus- tody of sub 1 . Wlieii by any contract a primA facie case of liability is estabHsbed, and there is alleged as matter of defence a rigbt to be relieved wholly or partially from such liability, the Court or a judge may make an litig'^on.^"^ ° order for the preservation or interim custody of the subject-matter of the litigation, or may order that the amount in dispute be brought into Court or otherwise secured (e). (c) An order under this rule for payment into Court of money received by a person acting in a fiduoiaiy character may be enforced by attachment [Suichmson v. Sa/rt- mont, W. N. (1877), 29). As to the time when the plaintifiE may apply under this rule, see rule 7, post, p. 469. Order for early trial. Order for sale of perishable goods. 1a. "Whenever an application shall be made before trial for an injunc- tion or other order, and on the opening of such application, or at any time during the hearing thereof, it shall appear to the judge that the matter in Qontroversy in the cause or matter is one which can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence for the purposes of the appHeation, it shall be lawful for the judge to make an order for sueh trial accordingly, and to direct such trial to be held at the next or any other assizes for any place, if from local or other circumstances it shall appear to him to be convenient so to do, and in the meantime to make such order as the justice of the case may require {ce). {ce) This rule was added by E. S. C, October, 1884. 2. It shall be lawful for the Court or a judge, on the application of any party, to make any order for the sale, by any person or persons named in such order, and in such manner, and on such terms as the Court or judge may think desirable, of any goods, wares, or merchandise which may be of a perishable nature or likely to injure from keeping, RULES OP THE SUPREME COURT, 1883. 467 or wHoh for any other just and sufficient reason it may be desirable to Ord. L. have sold at once (d). . 1 n^-D^^^ ^^"^ ™^^ ^^ ^® "^ * horse has been ordered [Bartholomew v. Freeman, 3 0. P. D. 316). Astoasaleof bondsBeeCo<«ai»i7-quharson v. Pitcher, 4 Euss. 510, where it was held that after a cause has been dismissed for want of prosecution, the plaintifE cannot obtain the costs of an abandoned motion ; Wedderburne v. Llewellyn, 13 W. E. 939, and the other cases cited in Morgan & Wurtzburg on Costs, p. 65. 2. No motion or application for a rule nisi or order to show cause No appUoa- sliall hereafter be made in any action, or (a) to set aside, remit, or ^adefo^^ enforce an award, or (b) for attachment, or (c) to answer the matters rule nisi or in an affidavit, or (d) to strike off the roUs, or (e) against a sheriff to "'^^^'^ *° ^^""^ . , ' > ^ / 6 cause. pay money levied under an execution. 3. Except where according to the practice existing at the time of the Notice of passing of the principal Act (y) any order or rule might be made ^iy^e^^el absolute ex parte in the first instance, and except where notwithstanding in certaia rule 2 a motion or application maybe made for an order to show cause '^^^^ only, no motion shall be made without previous notice to the parties affected thereby. But the Court or a judge, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irre- parable or serious mischief, may make any order ex parte {h) upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court or judge may think just ; and any party affected by such order may move to set it aside. (^). The " principal Act " is the Judicature Act, 1873; see Ord. LXXT. r. T, "Principal infra. Act." (h) As to moving ex parte for an injunction or a receiver, see Ord. L. r. 6, and not4 ante, p. 467. 4. Every notice of motion to set aside, remit, or enforce an award, Where or for attachment, or to strike off the roUs, shall state in general terms ^p^ation the groujids of the application ; and, where any such motion is founded to be stated. on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion {%). (») See Litchfield v. Jones, 25 Ch. D. 64 ; Sampden v. Wallis, 26 Ch. D. 746. 5. Unless the Court or a judge give special leave to the contrary Two days' there must be at least two clear days between the service of a notice of ^yg^_ ® 480 HtJLES OP THE StJPREME COtJRT, 1«S3. Ord. LII. Cons. Ord. XXXIII. r. 2. Short notice of motion. Where per- sons omitted to be served. Adjournment. Service on defendant who has not ap Service of notice of motion -with the writ. motion and the day named in the notice for hearing the motion (k) '. provided that in applications to answer the matters in an aifidavit or to strike off the rolls, the notice of motion shall be served on the parties not less than ten clear days before the time fixed by the notice for making the motion. (k) This first part of the rule is taken from Cons. Ord. XXXIII. r. 2. Leave to serve short notice of motion will be given whenever the circumstances of the case require it, but the applicant must state to the Court that the notice applied for is short, and the same fact must appear on the notice of motion {Samson v. Beeson, 22 Ch. D. 504, and cases there cited). During vacation, leave to serve short notice of motion can only be granted by a judge (Gonacher v. Cmacher, W. N. (1881), 2 ; 29 "W. E. 230). 6. If on the hearing of a motion or other application the Court or a judge shall be of opinion that any person to whom notice has not been given ought to have or to have had such notice, the Court or judge may either dismiss the motion or application, or adjourn the heariag thereof, in order that such notice may be given, upon such terms, if any, as the Court or judge may think fit to impose. 7. The hearing of any motion or application may from time to time be adjourned upon such terms, if any, as the Court or judge shall think fit. 8. The plaintiff shall, without any special leave, be at liberty to serve any notice of motion or other notice or any petition or summons upon any defendant, who, having been duly served with a writ of simimons to appear, has not appeared within the time limited for that purpose. 9. The plaintiff may, by leave of the Court pr a judge to be obtained ex parte, serve any notice of motion upon any defendant along with the writ of summons, or at any time after service of the writ of summons and before the time limited for the appearance of such defendant. [Rule 10 applies only to Admiralty actions.] No order for 11. No order shall issue for the return of any writ, or to bring in re of wnt. ^.j^g body of a person ordered to be attached or committed ; but a notice from the person issuing the writ or obtaining the order for attachment or conmiittal (if not represented by a solicitor), or by his solicitor, calling upon the sheriff to return such writ or to bring in the body within a given time, if not complied with, shall entitle such person to apply for an order for the committal of such sheriff. 12. When any sheriff shall, before going out of of6.ee, arrest any defendant, and render return of cepi corpus, he may be called upon by a notice, as provided by the last preceding rule, to bring in the body within the time allowed by law, although he may be out of office before such notice is given. Date of order. 13. Every order, if and when drawn up, shall be dated the day of the week, month and year, on which the same was made, unless the Court or a judge shall otherwise direct, and shall take effect ac- cordingly. Sheriff going out of office. RULES OF THE SUPREME COURT, 1883. 481 14. Where an order has been made not embodying any special terms, Ord. LII. nor including any special directions, but simply enlarging time for wtat orders taking any proceeding or doing any act or giving leave (a) for the issue need not be of any writ other than a writ of attachment ; (b) for the amendment '^^^^ ^^' of any writ or pleadings ; (c)for th« filing of any document ; or (d)for any act to be done by any officer of the Court other than a solicitor, it shall not be necessary to draw up such order unless the Court or a judge shall otherwise direct ; but the production of a note or memo- randum of such order, signed by a judge, registrar, master, chief clerk, or district registrar, shall be sufficient authority for such en- largement of time, issue, amendment, filing, or other act. A direction that the costs of such order shall be costs in any cause or matter shall not be deemed- a special direction within the meaning of this rule. The solicitor of the person on whose application such order is made, shall forthwith give nqjiiee in writing thereof to such person (if any) as would, if this rule had not been made, have been required to be served with such order. 15. It shall not be necessary to obtain an order to enter a judgment Order not 3 J T.j.-n ■T--1- T. J. • neoeasary to or order nunc pro tunc, but m aU cases m which such entries were gjj(.gj. juag. formerly made under orders of course, the solicitor applying to have a ment nunc pro judgment or order so entered, shall leave with the clerk of entries a memorandum in writing countersigned by the Chancery registrar, and bearing a stamp according to the scale of Court fees for the time being in force. 16. At the foot of every petition (not being a petition of course) Statement of presented to the Court, and of every copy thereof , a statement shall ge™edwith^ be made of the persons (if any) intended to be served therewith, and petitions. if no person is intended to be served, a statement to that effect shall be made at the foot of the petition and of every copy thereof (/). (?) This rule is taken from Cons. Ord. SXXIV. r. 1. Cons. Ord. The foot note should describe the persons to be served by name, and not simply as XXXIV j. 1 plaintiffs or defendants (Anon. "W. N. (1876), 219 ; Meyrick v. £aws, "W. N. (1877), -p,^ , ' ' 223). See as to amendment of the foot note, J?c rw«(?y, 9 W. R. 398. j;ooTnore. As to petitions generally, see DanieU, 1561. 17. Unless the Court or a judge gives leave to the contrary, there Time for must be at least two clear days between the service and the day ap- service, pointed for hearing a petition. 18. In the case of applications under Acts of Parliament directing Afadavit on the purchase-money of any property sold to be paid into Court, any ^'^^°^f°^^ persons claiming to be entitled to the money so paid in must make an Court under affidavit not only verifying their title, but also stating that they are ^°^°* Parlia- not aware of any right in any other person, or of any claim made by any other person, to the sum claimed, or to any part thereof, or, if the petitioners* are aware of any such right or claim, they must in such » gio. affidavit state or refer to and except the same (»»). (m) This rule is taken from Cons. Ord. XXXIV. r. 3. See note {h), ante, p. 29. M, I I 482 RULES OF THE SUPEEME COUBT, 1883. Ord. LII. Title and form of peti- tiona, &o. under 22 & 23 Vict. 0. 33, B. 30. Statement on ■which sum- mons is grounded to be left at chambers and transmitted to registrar. 19. All petitions, summonses, statements, affidavits, and other written proceedings for the opinion, advice, or direction of a judge under the 30th section of the Act 22 & 23 Yict. c. 35, shall be intituled in the matter of that Act, and in the matter of the particular trust, will, or administration, and every such petition or statement shall state the facts concisely, and shall be divided into paragraphs num- bered consecutively («). («) This and the three succeeding rules are taken from the Order of March 20th, 1860, which prescribed the manner of proceeding under 22 & 23 Vict. o. 3& (Lord St. Leonards' Act), s. 30. Eor this section, see ante, p. 102. 20. At the time when any such summons, as in the last preceding rule mentioned, is sealed, the statement upon which the same is grounded shall be left at the chambers of the judge to whom the same is assigned, and shall on the conclusion of the proceeding be trans- mitted to the Chancery registrar by the chief clerk, with the minutes of the opinion, advice, or direction given by the judge, and the regis- trar shall cause such statement to be transmitted to the central office, to be there filed (o). (o) See note to rule 19. 21. Every such petition or summons as in rule 19 mentioned, shall be served seven clear days before the hearing thereof, unless the per- son served shall consent to a shorter time {p). {p) See note to rule 19. Opimon, &o. 22. The opinion, advice, or direction of the judge, as in rule 19 Dassed^and ^ mentioned, shall be passed and entered and remain as of record in the entered. same manner as any order made by the Court or a judge, and the same shall be termed "a judicial opinion," or "judicial advice," or "judi- cial direction," as the case may be (§■). (q) See note to rule 19. [Biile 23 applies only to Admiralty actions.] Service of petition or summons. Claim for) mandamus to be indorsed on writ. Eorm of indorsement. OEDEE LIII. I. Action oir Mandamus. 1. The plaintiff, in any action in which he shall claim a mandamus to command the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested, shaU indorse such claim upon the writ of summons. 2. The indorsement shall be in the form given in section IV. of Appendix A., Part III. (»•). ()•) See this form, infra. RULES OF THE STTPBEME COURT, 1883. 483 3. If judgment he given for the plaintifE the Court or judge may by Ord. LIII. the judgment command the defendant either forthwith, or on the ex- judgment, piration of such time and upon such terms as may appear to the Court or a judge to be just, to perform the duty in question., The Court or a judge may also extend the time for the performance of the duty. 4. No writ of mandamus shall hereafter be issued in an action, but Mandamus to a mandamus shall be by judgment or order, which shall have the same ^enfor'o^'er effect as a writ of mandamus formerly had. [Rules 5 — 15 of this order refer only to prerogative mandamus, which must he applied for in the Queen's Bench Division.] OEDEE LIV. Applications and PEOCEEDrtfas at Chambers. I. — General. 1. Every application at chambers not made ex parte shall be made Application , , . on notice to be by summons (s). ty summons. (s) Cf. 15 & 16 Vict. c. 80, s. 28. 2. Every application for payment or transfer out of Court made M parte ex parte, and every other appHoation made ex parte in which "the judge ^en^tohT' or proper officer shall think fit so to require, shall be made by by summons, summons. 3. Summonses shall not be altered after they are sealed except upon Alteration of .... I -I -u /£\ summons. application at chambers (r). (i) This rule is taken from Regulations as to Business, Aug. 8, 1857, r. 1. 4. An originating summons, where service is necessary, shall be Service of served seven clear days before the return thereof. Every other summons. summons shall be served two clear days before the return thereof, unless in any case it shall be otherwise ordered («). (m) This rule is taken from Cons. Ord. XXXV. r. 7. The summons may be return- able after the seven days {WycherUy v. Barnard, Johns. 41). 5. Where any of the parties to a summons fail to attend, whether Proceeding upon the return of the summons, or at any time appointed for the '^^*l^^'^^ consideration or further consideration of the matter, the judge may moned makes proceed ex parte, if, considering the nature of the case, he think it Mault. expedient so to do ^ no affidavit of non-attendance shall be required or allowed, but the judge may require such evidence of service as he may think just (t;). (ff) This rule is taken from Cons. Ord. XXXV. r. 10. 6. Where the judge has proceeded ex parte, such proceeding shall EecoMidera- not in any manner be reconsidered in the judge's chambers, unless p^eeings'!*' the judge shall be satisfied that the party failing to attend was not Ii2 484 RULES OF THE SUPREME COURT, 1883. Ord. Lrv. guilty of •wilful delay or negligence ; and in sucli case the costs occa- Cogta_ sioned by his non-attendance shall be in the discretion of the judge, who may fix the same at the time, and direct them to be paid by. the party or his soKcitor before he shall be permitted to have such pro- ceeding reconsidered, or make such other order as to such costs as he may think just (to). («)) This rule is taken from Cons. Ord. XXXV. r. 11. Costa where 7. Where a proceeding in chambers fails by reason of the non- faSsTy reason attendance of any party, and the judge does not think it expedient to of non- proceed ex parte, the judge may order such an amount of costs (if any) ^y paX! °* ^^ ^s ^^^^ ^^^^ reasonable to be paid to the party attending by the absent party or by his solicitor personally (x). {x) This rule is taken from Cons. Ord. XL. r. 31. Further con- sideration in ohamhers. Adjourn- ments in chambers. New appoint- ment not necessary. Further con- sideration dis- pensed ■with. Including several mat- ters in one application. Costs reserved ■without spe- cial direction. Practice on adjournment into chambers. 8. Where matters in respect of ■which summonses have been issued are not disposed of upon the return of the summons, the parties shall attend from time to time ■without further summons, at such time or times as may be appointed for the consideration or further considera- tion of the matter (y). (y) This rule is taken from Cons. Ord. XXXV. r. 14. The costs of obtaining a new appointment, such being unnecessary, ■will be dis- allo-wed {He Catlin, 18 Beav. 512),but this applies only ■where a regular adjournment has been made ; and -where a ■witness had been summoned for examination, but, having received notice that the examination ■would not be proceeded ■with, did not attend, and no adjournment ■was thereon made, it ■was held that he could not be forced to attend again -without a fresh summons being taken out {lawson v. Stoddart, 12 W. R. 286). Where small leaseholds had been ordered to be sold, the proceeds ■were distributed among numerous parties, upon the certificate of the chief clerk, without adjourn- ment, to save expense, the purchasers being served with a summons to show cause in chambers why the proceeds should not be distributed by the chief clerk [Thorp v. Owen, 2 Sm. & G. App. i.). 9. In every cause or matter ■where any party thereto makes any application at chambers, either by -way of summons or other-wise, he shall be at liberty to include in one and the same application all matters upon which he then desires the order or directions of the Court or judge; and upon the hearing of such application it shall be lawful for the Court or judge to make any order and give any directions relative to or consequential on the matter of such applica- tion as may be just ; any such application may, if the judge thinks fit, be adjourned from chambers into Court, or from Court into chambers (z). (j) Cf. IS & 16 Vict. c. 80, s. 27. When a cause is adjourned to chambers, the reservation of costs is implied ■without an express direction to that efEect [Wallia v. Bastard, 2 W. R. 47 ; and see Leeds v. Lewis, 3 Jur. N. S. 1290) ; so, too, when vice versd, the cause is adjourned into Court {Bieken v. Homer, 2 L. T. 276) ; see also Be Fellows, 2 Jur. N. S. 62, from which it seems that a petition ought not to ask for the costs "incidental to an inquiry " va. chambers generally. When any matter is adjourned to chambers, or any directions are given in Court to be acted on in chambers •without any order being dra-wn up, a registrar's note must be obtained. See Ord. LV. r. 29, post. RULES 01" THE SUPREME COURT, 1883. 485 The hearing of iihe case by the judge, when adjourned, is only a continuation of Ord. LIV. the hearing before the chief derk [Leeds v. Zewis, 3 Jur. N. S. 1290 ; Re Mitchell, 9 Jut. N. S. 1272) ; and is not in the nature of an appeal [Be Watts, 22 Ch. D. 6). See also Bolloway v. Cheston, 19 Ch. D. 516. In Jaquet v. Jaquet, 7 W. R. 543, the Master of the Rolls refused to hear in support of the summons a party who did not join therein. It is in the discretion of the judge to make a rule that he will hear matters Discretion of requiring his personal attention in Court and not in chambers (Ee Agricuttttrist judge. Cattle Insurance Company, 3 De G. F. & J. 194 ; 11 W. R. 330, 386). An application to discharge an order made by a judge at chambers is made by motion in Court, but no further eyidence is admissible (He Mtmns, W. N. (1884), 117). 10. A summons other than an originating summons shall be in the Form of Form No. 1 in Appendix K., -with such variations as circumstances 8™™°"^- may require, and shall he addressed to all the persons on whom it is to be served (a). (ff) For this form, see infra. [Rules 11 — 29 apply only to the Queen's Bench and the Probate, Divorce aaid Admiralty Divisions.] ' OEDEE LV. Chambees in the Chahceet DrvisioN. I. — General. 1. The business in chambers of the judges of the Chancery Division, Business in chambers to be carried on to whom chambers are attached, shall be carried on in conjunction with their Court business (J). in con junction with Court (J) This rule is taken from 15 & 16 Vict. o. 80, s. 12. business. 2. The business to be disposed of ia chambers by judges of the Business to be Chancery Division, shall consist of the following matters, in addition obMnbers? ™ to the matters which under any other rule or by statute may be dis- posed of in chambers (c) : (c) This rule is taken from Cons. Ord. XXXV. r. 1, but the jurisdiction at chambers is considerably extended. (1.) Applications for payment or transfer to any person of any cash Payment out or securities standing to the credit of any cause or matter °„^°"I*f where there has been a judgment or order declaring the declaring rights {d), or where the title depends only upon proof of the ^S^''^, &<>• identity or the birth, marriage or death of any person (e) : ((?) As to what win amount to an " order declaring the rights " of a person under this sub-section, see Be Brandram, 25 Ch. D. 366. (e) The generality of this sub-section is not cut down or quaUfled by sub-sect. 7, or any of the sub-sections of rule 2, following sub-sect. 1 [Be Brandriim). (2.) Applications for payment or transfer to any person of any cash Where fund or securities standing to the credit of any cause or matter ^°^^ ^° * ..q, where the cash does not exceed 1,000J. or the securities do not exceed 1,000^. nominal value (/) : (/) The general expressions of this sub-seotion are not qualified or cut down by 486 RULES or THE SUPREME COURT, 1883. Ord. LV. For payment of diyidends. Applications under Legacy Duty Act. Applications ■under Trustee Relief Acts. Applications under Parlia- mentary IDeposits Act. Applications under Lands Clauses Act. Applications under Trustee Acts. tlie subsequent sut-sections. Consequently an applioation f or payment out of a sum not exceeding 1,000?. paid in under the Lands Clauses Consolidation Act, 1845, must be by summons, and tiie costs of a petition -will not be allo-wed ; any sucb summons asking for payment out to a person on behalf of the company must be sealed with the company's seal {Mm parte MaidaUMe Ry. Co., 25 Ch. D. 168 ; Be Gallon, 25 Ch. D. 240 ; Ee Madgwick, 23 Ch. D. 371). But an application for payment out of a shaire? amounting to less than 1,000?. of a fund in Court exceeding 1,000?. can only be made by petition [May v. Dowse, W. N. (1884), 122). (3.) Applications for payment to any person of the dividend or interest on any securities standing to the credit of any cause or matter, whether to a separate account or otherwise {ff) : (//) See Joad v. Bipley, 3 Jur. N. S. 432, decided under Cons. Ord. XXXV. (4.) Applications under 36 Geo. III. c. 52, s. 32 (the Legacy Duty Act), in all cases where the money or securities in Court do not exceed 1,000Z. or 1,000^. nominal value (^) : {g) As to this Act, see ante, p. 51. Applications for advancement to an infant out of funds ia Court exceeding 1,000?. paid in under the Act must be made by petition [Re Coore, "W. N. (1883), 169). (5.) Applications under 10 & 11 Vict. c. 96, and 12 & 13 Vict. c. 74 (the Trustee Belief Acts) in aU cases where the money or securities in Court do not exceed 1,000Z. or 1,000^. nominal value (A) : \ (A) As to payment out under the Trustee ReKef Act, see ante, p. 57. (6.) Applications under 9 & 10 Vict. c. 20 (the Parliamentary Deposits Act) for investment, payment of dividends, and payment out of Court («) : (i) As to this Act, see ante, p. 49. ■ (7.) Applications for interim aid permanent investment and for payment of dividends under the Lands Clauses Consolidation Act, 1845, and any other Act passed before the 14th of August, 1855, whereby the purchase-money of any property sold is directed to be paid into Court {j) : [j] See as to this sub-section, Ex parte Mayor of London, 26 Ch. D. 384, -where it was held by Kay, J., that the rule is not ultra vires, and consequently that all these applications must be made by summons, and the costs of a petition will not be allowed. An applioation, however, for payment out of a sum of 7,000?. to be laid out in building, though analogous to an application for a permanent investment ia not within the sub-section, and is properly made by petition (Ex parte Jesus College, W. N. (1884), 37). . -^ •' (8.) Applications under the Trustee Acts, 1850 and 1852, in aU cases where a judgment or order has been given or made for the sale, conveyance, or transfer of any stock or of any hereditaments, corporeal or incorporeal, of any tenure or description, whatever may be the estate or interest therein {k) : [k] This is taken from Cons. Ord. XXX. r. 1 (4), but is more extensive ; the old EULES OF THE SUPEEME COURT, 1883. 487 rule did not extend to the case of stock. See Frodshdmy. Frodsham, 15 Oh. D. 317 ; Ord. LV. He Moate, 22 Ch. D. 635. Where an order has been made in Court directing that r- new trustees be appointed and that application be made in chambers for vestiag- the trust property iu them when appointed, and directing an inquiry as to what the trust funds consisted of, an order may be subsequently made in chambers appointing new trustees and vesting in them the right to call for a transfer of the trust property {Se Tv-eedy, "W. N. (1884), 233). (9.) Applications on behalf of infants under 1 Will. IV. c. 65, ss. Applications 12, 16 and 17, -where the infant is a ward of Court, or the ^^^j jy administration of the estate of the infant, or the maintenance u. 65. of the infant is under the direction of the Court {I) : [1) Comp. Cons. Ord. XXXV. r. 1 (5). (10.) Applications under 18 & 19 Vict. c. 43, for the settlement of Applications any property of any infant on marriage {m) : S^ttkm^t"*^ ()») See as to this Act, ante, p. 96. . ■*-°*" (11.) Applications under the Copyhold Acts respecting any securities AppUcationa or money in Court. Notice of any such application is not to jJ^^^V^S'^' be given to the copyhold commissioners unless the judge shall so direct {mm) : ((«»») This is taken from rule 15 of the Chancery Funds Amended Orders, 1874. (12.) Applications as to the guardianship and maintenance or Guardianship advancement of infants (n) : ° mtante. (») Of . 15 & 16 Viot. 0. 80, s. 26. See Be Coore, cited in note (y) to sub-sect. 4. (13.) Applications connected with the management of property (o) : Management of property, (o) Cf. 15 & 16 Viot. 0. 80, s. 26. (14.) Applications for or relating to the sale by auction or private Sales. contract of property, and as to the manner in which the sale is to be conducted, and for payment into Court and invest- ment of the purchase-money : (15.) All applications under 6 & 7 Viot. c. 73 (not being applications Taxation for orders of course) for the taxation and delivery of bills of J^OTs^Act" °^' costs and for the delivery by any solicitor of deeds, documents, 1843. and papers {p) : (p) This rule is taken from Gen. Ord. Apr. 17, 1867 ; as to the Solicitors Act, 1843, the statute here referred to, see ante, p. 1. (16.) Applications for orders on the further consideration of any Orders on cause or matter where the order to be made is for the dis- . J^^^f. °°'}" . .,,..,. , siderationiu tnbution of an insolvent estate or for the distribution of the certain cases. estate of an intestate, or for the distribution of a fund among creditors or debenture holders {pp) : (p/>) See Se Sumner, W. N. (1884), 121. (17.) Applications for time to plead, for leave to amend pleadings, TimetopleaJ, for discovery and production of documents, and generally all 488 Ord. LV. Other mat- ters. HULES OF THE SITPEEME COURT, 1883. applications relating to tlie conduct of any cause or matter {q) : (?) Of. 15 & 16 Viot. 0. 80, s. 26. (18.) Suoli other matters as the judge may think fit to dispose of at chambers {r). (r) Of. 15 & 16 Viot. c. 80, s. 26. Originating Bununons for speoifio relief ■without ad- . ministratiou. II. — Administrations and Trusts. 3. The executors or administrators of a deceased person or any of themj and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next of kin, or heir-at-law or customary heir of a deceased person, or as cestuique trust under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable in the chambers of a judge of the Chancery Division for such relief of the natiire or kind following, as may by the summons be specified and as the circumstances of the case may require, (that is to say), the determination, without an administration of the estate or trust, of any of the following questions or matters : — (a) any qiiestion affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin, or heir- at-law, or cestuique trust : (b) the ascertainment of any class of creditors, legatees, devisees, next of kin, or others : (c) the furnishing of any particular accounts by the executors or administrators or trustees, and the vouching (when necessary) of such accounts : (d) the payment into Court of any money in the hands of the executors or administrators or trustees : (e) directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees («) : (f) the approval of any sale, purchase, compromise, or other transaction : (g) the determination of any question arising in the administration of the estate or trust {t). (s) This suh-r\ile applies only to an order to trustees to do or abstain from doing something ■vpithin their trust {Suffolk v. Lawrence, 32 W. E. 899 ; W. N. (1884), 158). See Re Walky, W. N. (1884), 144. RULES OF THE SUPREME COURT, 1883. 489 (0 The following notice was issued in January 1884 ; see W. N. (1884), Pt. II. Ord. LV. NOTICE. Chauoeet Division. Titles, §c. of Stimmonses issued out of the Central Office. Solicitors issuing originating summonses are recommended to use the following forms as far as practicable for general use in chambers. But the officers of this department cannot be responsible for any alterations which may be required by the chief clerk in any partioidar case. Administeation Summonses. Are to be entitled " In the Matter of the Estate of A. B., deceased." •D Flaintiff. E F Defendant. N.B. — Tliis regulation is to apply to summonses under Ord. L V. r. 3, for determining particular questions with regard to an estate. OsiaiNATINO SUMMONSBS. In all cases where an originating summons is taken out under the authority of an Act of Parliament, or the Rules of the Supreme Court, the summons must be entitled in a substantial matter (as the first title), and also in the matter of the par- ticular Act, as well as any general Act applicable (such as the Lands Clauses Con- solidation Act, 1845, or the Copyhold Acts). (1 .) If it be a railway or other local Act, and under its powers a portion of the estate of any testator or intestate has been taken, the summons must be entitled in the matter of the estate of such testator or intestate. And iu the matter of the Act or Acts. (2.) If property settled by any deed of settlement then iu the matter of such set- tlement. And in the matter of the Act or Acts. (3.) If land belonging to a rector, vicar, or corporate body then it must be en- titled " Ex parte the rector, vicar, or corporate body," as the case may be. And in the matter of the Act or Acts. (4.) Summonses for payment of money out of Court should bear the same title as that of the proceeding under which the fund was paid in. (5.) Summonses under the Settled Land Act, 1882, should be entitled as directed by the rules under the said Act, and in other respects should be in the form given in Appendix L., No. 25, of the Rules of the Supreme Court, 1883. The address and description of the applicant and of the next friend (if any), should in all cases be stated in the summons, and if the applicant or the parties summoned apply or are summoned as trustees or in a representative capacity the fact should appear in the summons, and the rule (if any) under which the application is made should be stated therein. See also rr. 20 — 24, post, p. 494. An executor who intends to take out a summons to determine a question arising in respect of one share only of a fund should reserve a sum for costs out of the whole fimd before making any distribution, as the costs of the summons cannot be thrown on the one share {Ze Fotts, W. N. (1884), 106). It is a common and convenient practice on taking out a summons under this rule for a statement of facts to be prepared and agreed to by the parties in order to save expense. The validity of a release in respect of a share in the estate of a deceased testator can be determined on a summons under this rule' when administration of his estate is asked for, even if it is admitted that administration is not wanted [Me Garnett, 32 W. R. 474). 4. Any of the persons named in the last preceding rule may in Administra- like manner apply for and obtain an order for — *^°''" (a) The administration of the personal estate of the deceased : (b) The administration of the real estate of the deceased (m) : (c) The administration of the trust («). (u) Under this ride the sanction of the Court can be obtained to the raising of 490 RULES OF THE SUPREME COURT, 1883. Persons to be served. Ord. LV. money by mortgage for the purpose of paying a testator's debts [Ee IFdley, W. N. (v) Where the estate had been abeady distributed in ignorance of the fact that the plaintifE -was one of the class of persons entitled, Kay, J., held that an origi- nating summons was not the proper proceeding for obtaining administration {Me Warren,W.-N. {mi), 112). ,., , ^-j ^ x ;,w^ Of. Chancery Procedure Act, 1852, ss. 45—47, which, however, did not extend to (c) . The Court of Chancery would decline to make an order for administration under these sections where there was reason to apprehend that difficult questions might arise ; see 2 Dan. 5th ed. 1071, 1072 ; Seton, 855. A chief clerk cannot make an order for general administration ; see rule 15, post, p. 492. 5. The persons to te served -with the summons under tlie last two preceding rules in the first instance, shall he the foIlo-wing (that is to say,)— A. Where the summons is taken out by an executor or adminis- trator or trustee, — (a) For the determination of any question under sub-sec- tions (a), (e), (f ), or (g) of rule 3, the persons or one of the persons, whose rights or interests are sought to be affected : (b) For the determination of any question, under sub-sec- tion (b) of rule 3, any member or alleged member of the class : (c) For the determination of any question, under sub-sec- tion (c) of rule 3, any person interested in taking such accounts : (d) For the determination of any question, under sub-sec- tion (d) of rule 3, any person interested in such money : (e) For relief under sub-section (a) of rule 4, the residuary legatees, or next of kin, or some of them : (f ) For relief under sub-section (b) of rule 4, the residuary devisees, or heirs, or some of them : (g) For relief under sub-section (c) of rule 4, the cestuis que trust, or some of them : (h) If there are more than one executor or administrator or trustee, and they do not all concur in taking out the summons, those who do not concur : B. Where the summons is taken out by any person other than the executors, administrators or trustees, the said executors, ad- ministrators or trustees (w). (tti) Where the defendant, an administratrix, was a person of unsound mind, not so found, and no appearance had been entered for her, the Court appointed the official solicitor guardian ad litem under Ord. XIII. r. 1 {He Fepper, W. N. (1884), 141 ; 50 L. T. 680 ; 32 W. R. 765). Otherpersons. 6. The Court or a judge may direct such other persons to be served with the summons as they or he may think fit. Evidence. 7. The application shaU be supported by such evidence {x) as the Court or a judge may require, and directions may be given as they or he may think just for the trial of any questions arising thereout. {x) As to cross-examination on the affidavit in support of the summons, see Fenton v. Cmtberlege, W. N. (1883), 116. RULES OF THE SUPREME COURT, 1883. 491 8. It shall be lawfiil for tlie Court or a judge upon such summons Ord. LV. to pronounce such, judgment as the nature of the case may require. judgment. 9. The Court or a judge may give any special directions touching Special direo- the carriage or execution of the judgment, or the service thereof upon ^o^s. persons not parties, as they or he may think just. 10. It shall not be obligatory on the Court or a judge to pronounce General ad- or make a judgment or order, whether on summons or otherwise, for "^^ be^dis^ the administration of any trust or of the estate of any deceased person, pensed with. if the questions between the parties can be properly determined with- out such judgment or order (y). (y) This rule applies to administration actions commenced before, but tried after the Rules of 1883 came into operation {Se Lleioellyn, 25 Ch. D. 66, where the action was referred to chambers to determine whether a general administration of the estate shoidd be directed). In Ee Mills, W. N. (1884), 21, Pearson, J., said he endeavoured to avoid making a general administration decree where he could, but it was not always possible to do so, and made the usual decree, except that instead of the real estate being sold, an inquiry was directed. See also £e Hayter, 32 W. R. 26 ; Butterfield-v. Mmt W. N. (1884), 164, where the action was dismissed with costs ; Ee Barrett, W. N. (1884), 224 ; and compare the cases cited in note (A) to Ord. TiXV. r. 1, post, p. 540. If a proper case can be shown, the Court wiU of course make a decree for general administoation [Ee Dickinson, W. N. (1884), 199). The plaintiff in an action cannot take out a summons to determine questions which are at issue in the action [Borthwick v. Eansford, 28 Ch. D. 79). 11. When any summons under rules 3 or 4 of this order has been Subsequent summonses, how marked. taken out, every subsequent summons relating to the same estate or summonses, trust shall be marked with the name of the judge, to whom, for the time being, the matter is assigned, and in case any such subsequent summons shall be marked with the name of another judge it shall be the duty of the executors, administrators, or trustees, to apply for the transfer to such first-mentioned judge of such subsequent summons {yy). l^y) See Ord. XLIX. i'. 6, ante, p. 465. 12. The issue of a summons under rule 3 of this order shall not Powers of interfere with or control any power or discretion vested in any executor, trustees, &o., administrator, or trustee, except so far as such interference or control affected. may necessarily be involved in the particular relief sought (z). (2) As to the effect of a decree for execution of the trusts on the powers of trustees, see Bethell v. Abraham, 17 Eq. 24; Eastwood v. Clark, 23 Ch. D. 134 ; 31 W. R. 417 ; Tempest v. lord Camoys, 21 Ch. D. 671. 13. Any application to a judge in chambers under " The Charitable 'Applications Trusts Act, 1853," sect. 28, shall be made by summons (a). "i»der Chari- table Trusts [a) See note to next rule. Act, 1853. 14. No order made under the Act in the last preceding rule men- Appeals ia tioned by the judge in chambers shall be subject to appeal where the charity cases, gross annual income of the charity has not been declared by the Charity Commissioners for England and Wales to exceed 100/., unless the judge by whom such order may have been made shall certify that such appeal ought to be permitted either absolutely or on such terms as the judge may think fit to impose (5). (b) This and the preceding rule are taken from Cons. Ord. XL. rr. 10 and 13. See as to the Charitable Trusts Act, 1853, amte, p.- 94. 492 RULES OF -THE SUPREME COURT, 1883. Ord. LV. III. — Poioers and Duties of Chief Clerks. Power to 15. The judges of tlie Chancery Division to whom chambers are j^^r *h t attached shall have power, suhject to these rules, to order what matters matters, &c. shall he heard and investigated hy their chief clerks, either with or shaUbe heard -without their direction, during their progress ; and what matters shall by themselves ■-,■,■, T ^ ■ , i ■„ ■, ■ i ajid what by be heard and mvestigated by themselves, and particularly if the judge their chief shall SO direct, his chief clerks shall take such accounts and make such inquiries as have usually been taken and made by the chief clerks, and the judge shall give such aid and directions in every such account or inquiry as he may think fit, but subject to the right hereinafter pro- vided for the parties to bring any particular point before the judge ; Chief clerk not provided that no judgment or order for general administration shall be ordOT^for^" made under rule 4 of this order or otherwise by a chief clerk (c). general ad- („n tMs rule is taken from 15 & 16 Vict. o. 80, s. 29. mmistration. J^jj orders made in chambers are considered to be made by the judge himself, and, Right of consequently, the judge in chambers is always accessible to any of the parties party to see engaged in proceedings there, who wish to see him, and it is the invariable practice judge himself . to give any party, suggesting that he wishes to see the judge personally, the oppor- tunity of doing so directly {Mm/ward v. Sat/ward, Kay, App. xxxi. ; Jie Sigg, 10 W. R. 366). See also Saunders v. Walter, 9 Hare, App. v. ; Me London and Comity Assurance Co., 5 W. R. 794, where upon a motion to commit a party, who refused to answer a question, and requested that the case might be adjourned for hearing before the judge, it was held, that either party has a right on the minutest point to require an adjournment of the case before the judge himself in chambers, and the motion to commit was refused with costs, Williamson v. Jeffreys, 9 Hare, App. Ivi. ; Leeds v. Lewis, 3 Jur. N. S. 1290 ; Upton v. Brown, 20 Ch. D. 731 ; Be Watts, 22 Ch. D. 5 ; and see also rule 69, and note thereto, post, p. 505. An adjournment from the chief clerk to the judge is not an appeal so as to subject the party who asked for the adjournment to costs if he fail (Be Watts). Adjournment Pearson, J., has recently laid down the following rule as to adjournments from to judge. tli6 chief clerk to the judge : — Adjournment to the judge will not be granted unless an application is made to the chief clerk, at the time when the summons is heard by hrai, either for an ad- journment or for time to consider whether an adjournment shall be asked for. If no application is made t» the chief clerk at the time, the order can only be altered by means of a motion in Court to discharge it. If an order is made against a party properly served in his absence, the result is the same as if, being present, he does not ask for an adjournment. Time to consider whether an adjournment shall be asked for will be granted, if an application for it is made at the hearing in a proper case, as if only a clerk who is not fuUy instructed is present, or in a country case when reference to the country solicitor is necessary (W. N. (1884), 218). As to time of appealing from a decision of the chief clerk, see Mrasnett's Case, W. N. (1884), 223. Power to chief 16. Each chief clerk shall, for the purpose of any proceedings advertisp- directed to be taken before him, have full power to issue advertise- ments and ments, to summon parties and witnesses, to administer oaths, to require g^j^ijjjg^^j. ' the production of documents, to take affidavits and acknowledgments, oaths, &c., as other than acknowledgements by married women, and when so J^g^t.^ directed by the judge to examine parties and witnesses either upon interrogatories or vivd voce, as the judge shall direct {d). {d) This rule is taken from 15 & 16 Vict. o. 80, s. 30. See aa to the position and functions of the chief clerk, Powell v. Powell, 10 Oh, p. 135. As to affidavits and evidence in chambers, see Ord. XXXVlII., Pt. II. ante, p. 438. Practice If a party examined in oTiambers refuse to give a sufficient answer, the judge RULES or THE SUPREME COURT, 1883. 493 abould be asked to examine him personally, and if he then refuse to answer he may Ord. LV. be oom.mitted at once {Sayward v. Rayiuard, Kay, App. ixxi.). A TmTmQCici linn n _: T_l. "J? 1_ _ . • 1 1 ' ,, ^ . t t ' A witness has a right, if he wishes, to require that his examination should he when party oontooted before the judge in person (& Lmdon and County Assurance Co., 5 examined in in'w ro^ 'cS^ °*' ■^"'y^""'^^- SO'y'-'xi'i^A ; Me Some Counties Life Assurance Co., chambers 10 ^-^^ 457 ; He Agriculturist Cattle Insurance Sooiety, 3 De G. F. & J. 194 ; Sx refuses to parte Munn, 2i Beav. 137, where on a witness refusing to be sworn before the chief answer. clerk, on the ground that he required the assistance of counsel, it was held, on a !?„„„;„„«„„ motion to commit the witness, that the proper course was, after he was sworn, to S^TTiXp apply that his examination might be taken before the judge, or an examiner, or, if f^ZvJT necessary, that the case might be adjourned into Coui-t. See, too. He Esgair P™'^"'i- Mining Co., 8 W. E. 669, where it was held, that, although the chief clerk had power in a winding-up case to summon a witness before him until the list of con- tributories was definitely settled, yet a motion to commit such witness for refusing to attend could not be entertained until such refusal had been certified by the judge in chambers under the 11 & 12 Vict. c. 45. In one case, witnesses, who had been examined before the hearing, upon inter- Examination rogatories, were examiaed again vivd voce, before the chief clerk, as to the same first iu Court matters {Sogers v. Mort, 10 Hare, App. liii. ; of. Sextall v. Cheadle, 1 Sm. & Gr. 78 ; and again in Jiouth V. Tomlinson, 16 Beav. 261). chambers. No special order was required for the transfer of a witness's examination from Trflnsfpr of chambers to the examiner's office {Stebbing v. Atlee, 26 L. J. Ch. 265). examiuatiou 17. Parties and witnesses summoned to attend before a chief clerk Process of shall be bound to attend in pursuance of the summons, and shall be ''°'^*^™P*- liable to process of contempt in like manner as parties or witnesses are liable thereto in case of disobedience to any order of the Court, or in case of default in attendance, in pursuance of any order of the Court or of any writ of subpoena ad testificandum, and all persons swearing or affirmiag before any chief clerk shall be liable to all such penalties, punishments, and consequences for any wOf ul and corrupt false swearing or affirming contained therein, as if the matters sworn or affirmed had been sworn and affirmed before any other person by law authorised to administer oaths, to take affidavits, and to receive affirmations (e). («) This rule is taken from 15 & 16 Vict. c. 80, s. 31. Ill the prosecution before the chief clerk of an inquiry directed by an administra- tion decree any person able to give information about the assets may be summoned by subpoena, and is bound to attend before an examiner and answer aU proper questions put to him by the person having the conduct of the decree ( Venables v. Schweitzer, 16 Eq. 76). See as to subpoenas, Ord. XXXVII., Pt. III., ante, p. 428. 18. The Court or judge may direct any, computation of interest, or Computation the apportionment of any fund, to be certified by the chief clerk, and interest or to be acted upon by the paymaster-general or other person without ment of fund, further order (/). (/) Cf. Cons. Ord. XXXV. r. 45. See as to interest the Supreme Court Euuds Rules, 1884, ante, p. 235. IV.- — Assistance of Experts. 19. The judge in chambers may, in such way as he thinks fit, obtain Court may the assistance of accountants, merchants, engineers, actuaries, and °^ta™ assist- other scientific persons the better to enable any matter at once to be oountauts, determined, and he may act upon the certificate of any such person (^r). merchants, (a) This rule is taken from 15 & 16 Vict. 0. 80, s. 42, now repealed. 494 RULES OF THE SUPREME COURT, 1883. Ord. LV. AssesBOTS under Judica- ture Act. Accountants. Expert cannot call witnesses. References to experts. Judge cannot delegate to chief clerk. When refer- ence is refused. See Judicature Act, 1873, 56th and following sections, as to trial with assessors, and Ord. XXXVI., Pt. VIII., ante, p. 419. See, as to the employment of accountants. Be Sutchinson, 32 W. R. 392 ; "W. N. (1884), 35 ; Re London, Sirmingham and Bucks Ey. Co., 6 yT. R. 141. It seems they need not always he employed in the presence of the parties [ibid.). The expert has no jurisdiction to caU witnesses {Moiris v. Llanelly Ey. Go., "W. N. (l868), 46). The object of the rule is to facilitate inquiries necessary to found a decree ; thus, complicated claims of creditors, which would have had to go to arbitration if tried at common law, were referred to chambers to be disposed of by the judge with the aid of an accountant [Mildmay r. Lord Methuen, 1 Drew. 216, where it was held that the judge cannot delegate this power to the chief clerk ; Mcintosh v. Great Western By. Co., 3 Sm. & Griff. 146) ; and the amount of encroachment of alluvium on a sea-shore was referred to an expert in Att.-Gm. v. Chambers, 4 De G. Sc J. 65, 58. The rule does not give a judge power to adjourn the decision of a cause for further inquiries from engineers or others in a case where the plaintiff has a clear light to an injunction, although the injunction may be a very dificult one for the defendant to obey [Att.-Gen. v. Col/ney Hatch Asylum, 4 Ch. 146, where an injunctiou^'was granted to restrain a nuisance, and the Court of Appeal reversed an order by which it was referred to an engineer to inquire how the nuisance might be abated) ; so a general inquiry as to what ought to be done to preserve the plaintiflE's light and air was refused in Stokes v. City Offices Co., 13 W. R. 537. See also Case v. Midland By. Co., 27 Beav. 247, where an inquiry as to the effect of using steam- boats on, a canal was directed ; and after the decree the opinion may be taken as to time which ought to be allowed for carrying it into effect [Att.-Gen. v. Merthyr Tydfil Local Board of Health, W. N. (1870), 148). The Court will not obtain the assistance of a scientific person until an issue has been raised between the parties [Stokes v. City Offices Co. ; Baltic Co. v. Simpson, 24 W. R. 390). The report of an expert is not to decide the question referred to him, like an arbitrator's award, though it may give material information and guidance to the judge [Ford v. Tynte, 2 De G. J. & S. 127, where it was said affidavits might be received in opposition ; Adamson v. Gill, 16 W. R. 306). The chief clerk must not file such report as part of his certificate ; see Hill v. King, 9 Jur. N. S. 527 ; 3 De G. J. & S. 418. Form and pre- paration of originating summonses. Time for attendance under origi- nating sum- mons to be added. New sum- mons. V. — Summonses in Chambers. 20. An originating summons shall be in the Form No 25 in Appendix L., with, such variations as circumstances may require. It shall he prepared hy the applicant or his solicitor, and shall he sealed in the central office, and when so sealed shall he deemed to be issued. The person obtaining the summons shall leave at the central office a copy thereof, which shall be filed and stamped in the manner required by law [h). [h) Cf. Cons. Ord. XXXV. r. 6. For the form here referred to, see infra. 21. The day and hour for attendance under an originating sum- mons shall be left to be added, after the sealing thereof, in the margin or at the foot of the same, and shall be there inserted when such day and hour shall have been fixed at the chambers of the judge to whom the matter is assigned by the chief clerk, who shall mark the summons with the seal used in such chambers. 22. Where from any cause an originating summons may not have been served upon any party seven clear days before the return thereof, an indorsement may be made upon the summons, and upon a copy thereof stamped for service appointing a new time for the parties not before served to attend at the chambers of the judge, and such indorse- ments shall be sealed at the judge's chambers, and the service of the RULES OF THE SUPREME COURT, 1883. 495 copy so indorsed and sealed shall liave tlie same force and effect as the Ord. LV. service of an originating summons, and where any party has been served before such indorsement, the hearing thereof may, upon the return of the summons, he adjoiu-ned to the new time so appointed («). (i) This rvde is taken from Cons. Ord. XXXV. i-. 8. 23. The parties served with an originating summons shall, before Entry of they are heard in chambers, enter appearances in the central office and ^PP^^™""^- give notice thereof (^). (i) This rule is taken from Cons. Ord. XXXV. i. 9. 24. The summons by the chief clerk requiring the attendance of I'orm of parties, witnesses or others, shall be in the form No. 1 in Appendix L., with such variations as the circumstances of the case may require (Z). {l) Eor this form, see infra. YI. — Proceedings relating to Infants. 25. Upon applications for the appointment of guardians of infants Evidence on and allowance for maintenance the evidence shall show — applications (a.) The ages of the infants ; and mainte- (b.) The nature and amount of the infants' fortunes and incomes ; nance, (c.) What relations the infants have (m). (»») This rule is taken from Regulations as to Business, August 8, 1857, r. 19. 26. Upon applications to obtain the sanction of the Court to infants Evidence on makLag settlements on marriage under 18 & 19 Vict. c. 43, evidence ^der\rrfMits shall be produced to show — Settlement (a.) The age of the infant ; •*•"*• (b.) Whether the infant has any parents or guardians ; (c.) 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 ; (d.) The rank and position in life of the infant and parents ; (e.) What the infant's property and fortune consist of ; (f .) The age, rank and position in life of the person to whom the infant is about to be married ; (g.) What property, fortune and income, such person has ; (h.) 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, shall be submitted to the judge (n). («) This rule is taken from Regulations as to Business, Aug. 8, 1857, i'. 20. For this Act, see ante, p. 96. 27. At any time during the proceedings at any judge's chambers Appointment under any judgment or order,-the judge may, if he shall think fit, of guardian require a guardian ad litem to be appointed for any infant or person ad litem. 496 BULKS OF THE SUPEEME COUET, 1883. Ord. LV. of unsound mind not so found by inquisition, wlio has been served with notice of such judgment or order (o). (o) This rule is taken from Cons. Ord. VII. r. 7. Proceedings under judg- meutjor order. Registrar' s note on ad- journment to chambers. VII. — Documents to he left at Chambers. 28. In all cases of proceedings in chambers under any judgment or order, the party prosecuting the same shall leave a copy of such judg- ment or order at the judge's chambers, and shall certify the same to be a true copy of the judgment or order as passed and entered (jo). (p) This rule is taken from Cons. Ord. XXXV. r. 15. As to passing and entering judgments and orders, see Ord. LXII., infra. 29. 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, shall be procured from the registrar and left at chambers (j). (?) This and the two foUowmg rules are taken from Regulations as to Business, Aug. 8, 1857, rules 3, 6 and 8. Note of names 30. A note stating the names of the solicitors for all the parties, and °* |°^ii!?™ showing for which of the parties such solicitors are concerned, shall be left at chambers with every judgment or order (r). (r) See note to rule 29. Copy of cer- tificate of 'entry, &c. to be left at chambers. 31. A copy of every certificate of the central office of entry of a memorandum of service of notice of a judgment or order, and of every appearance entered by a person served with such notice to attend the proceedings, certified by the solicitor, shall be left at chambers (s). (s) See note to rule 29. Vm. — Summonses to proceed. 32. Every judgment or order directing accounts or inquiries to be taken or made shall be brought into the judge's chambers by the party entitled to prosecute the same within ten days after the same shall have been passed and entered, and in default thereof any other party to the cause or matter shall be at liberty to bring in the same, and such party shall have the prosecution of such judgment or order unless the judge shall otherwise direct (<). [t) This rule is taken from Cons. Ord. XXXV. r. 22. Summons to 33. Upon a copy of the judgment or order being left, a summons proceed with gJiaU be issued to proceed with the accounts or inquiries directed, and inquiries. upon the return of such summons the judge, if satisfied by proper evidence that all necessary parties have been served with notice of the Time for bringing in judgment or order direct- ing aoooxmts or inquiries. Consequences of default. RULES OF THE SUPEEME COURT, 1383. 497 judgment or order, Bhall thereupon give directions as to the manner in Ord. LV. ■which each of the accounts and inquiries is to he prosecuted, the Direotiona. evidence to be adduced in support thereof, the parties who are to Evidence, attend on the several accounts and inquiries, and the time within which each proceeding is to be taken, and a day or days may be appointed for the further attendance of the parties, and all such direc- tions may afterwards be varied, by addition thereto or otherwise, as may be found necessary (m). {u) This rule is taken from Cons. Ord. XXXV. r. 16. Although an aoooimt has heen properly directed by a decree, semble, the Court would stay the taking of it if it eoijd be shown that it would be useless {Taylor v. Mostyn, 25 Oh. D. 48). 34. Where by a judgment or order a deed is directed to be settled by Settling deed the judge in chambers in case the parties differ, a summons to proceed ment &e. in shall be issued, and upon the return of the summons the party entitled case parties to prepare the draft dged shall be directed to deliver a copy thereof, within such time as the judge shall think fit, to the party entitled to object thereto, and the party so entitled to object shall be directed to deliver to the other party a statement in writing of his objections (if any) within eight days after the delivery of such copy, and the pro- ceeding shall be adjourned until after the expiration of the said period of eight days (w). (») This rule is taken from Cons. Ord. XXXV. r. 17. Where an infant is a necessary party, the words "in case the parties differ" are omitted {Calvert v. Ood- frey, 2 Beav. 267). The order of a judge settUng the form of a conveyance is subject to appeal {Polloclc V. Rabbits, 21 Ch. D. 466). 35. "Where, upon the hearing of the'summons to proceed, it appears Service of to the judge that by reason of absence, or for any other sufficient ^^d^entor cause, the service of notice of the judgment or order upon any party order, where cannot be made or ought to be dispensed with, the judge may, if he ^^^"^^^ shall think fit, wholly dispense with such service, or may, at his dis- cretion, order any substituted service or notice by advertisement or otherwise in lieu of such service {w). {w) This rule is taken from Cons. Ord. XXXV. 1. 18. 36. If on the hearing of the summons to proceed it shall appear that Proceedings all necessary parties are not parties to the action or have not been ^^"^p^tils" served with notice of the judgment or order, directions may be given are not parties for advertisement for creditors, and for leaving the accounts in ^^6°]^?^ chambers but the adjudication on creditors' claims and the accounts been served. are not to be proceeded with, and no other proceeding is to be taken, except for the purpose of ascertaining the parties to be served, until all necessary pai-ties shall have been served, and are bound, or service shall have been dispensed with, and until directions shall have been given as to the parties who are to attend on the proceedings. 37 The course of proceeding in chambers shall ordinarily be the Course of pro- same as the course of proceeding in Court upon motions. Copies, ehSr™ M. ^^ K 498 RULES OF THE SUPEEME COUBT, 1883. Ord. LV. Copies. abstracts, or extracts of or from accounts, deeds, or otlier documents and pedigrees and concise statements shall, if directed, be supplied for the use of the judge and his chief clerks, and where so directed, copies shall be handed orer to the other parties. But no copies shall be made of deeds or documents where the originals can be brought in unless the judge shall otherwise direct (x). (a;) This rxile is taken from Cons. Ord. XXXV. r. 26.- Summous ■faook. Lists of matters to he made out. IX. — Summons Book. 38. At the time any summons is obtained, an entry thereof shall be made in "the Summons Book," stating the date on which the summons is issued, the name of the cause or matter, and by what party, and shortly for what purpose such summons is obtained, and at what time such summons is returnable (y). (2^) TUs rule is taken from Cons. Ord. XXXV. r. 24. 39. Lists of matters appointed for each day shall be made out and affixed outside the doors of tKe chambers of the respective judges; and, subject to any special direction, such matters shall be heard in the order in which they appear in such lists (z). {z) This rule is taken from Cons. Ord. XXXV. r. 25. Judge may- nominate one solicitor for a X. — Attendances. 40. "Where, upon the hearing of the summons to proceed, or at any time during the prosecution of the judgment or order, it appears to the judge, with respect to the whole or any portion of the proceedings, that the interests of the parties can be classified, he may require the parties constituting each or any class to be represented by the same solicitor, and may direct what parties inay attend all or any part of the proceedings, and where the parties constituting any class cannot agree upon the solicitor to represent them, the judge may nominate such solicitor for' the purpose of the proceedings before him, and where any one of the parties constituting such class declines to authorise the solicitor so nominated to act for him, and insists upon being represented by a diflcerent solicitor, such pajty shall personally pay the costs of his own solicitor of and relating to the proceedings before the judge, with repeet to which such nomination shall have been made, and all such further costs as shall be occasioned to any of the parties by his being represented by a different solicitor from the solicitor so to be nominated (o). («) This rule is taken from Cons. Ord. XXXV r. 20. where, in an administration action, the parties beneficially entitled appeared by several solicitors but were unable to agree as to which solicitor should represent the whole class in the proceedings under the judgment, the Court appointed the official solicitor to represent the class [Re Socwra, Docwra v. Faith, W. N. (1884), 174, 232). "Where a number of persons in the same interest having liberty to attend the proceedings in an administration suit appeared separately on an adjourned summons. EULES OP THE SUPEEME COURT, 1883. 499 only one set of costs was allowed [Stevenson v. AUngton, 11 W. E. 936; Bellew v. Ord. LV. Sellew, "W". N. (1868), 253 ; Foxm v. Jbaiew, 13 "W. E. 33). Where the plaintiff and detendant in an administration suit employ the same solicitor, other residuary legatees having liberty to attend the proceedings will be allowed one set of costs between ^em [Da-ubney v. Leake, 1 Eq. 495; 35 Beav. 311; SubbardY. Latham, 35 L. J. Ch. 402 ; 14 W. E. 553 ; 14 L. T. 616 ; Wragg v. MorUy, 14 "W. E. 649 ; Joseph v. Goode, W. N. (1875), 4 ; 23 W. E. 225). See also as to costs of attendances in ^ambers, r. 42 ; Ord. LXV. r. 27 (23), post; Sharp v. Lmh, 10 Ch. D. 468 ; 27 W. E. 628 ; JRe Marshall, W. N. (1879), 12 ; Daij v. Mttij, 21 Ch. D. 830 ; Morgaa & Wurtzburg on Costs, p. 137. 41. Whenever in any proceeding before a judge in cliamTDers the Judge may same solicitor is employed for two or more parties, such, judge may ^f\g repre- at his discretion require that any of the said parties shall be represented sented by dis- before him by a distinct solicitor, and adjourn such proceedings until such party is so represented (i). (*) This rule is taken from Cons. Ord. XXXV. r. 21. 42. Any of the parties other than those who shall have been directed Costs of to attend may attend at their own expense, and upon paying the costs, 5^'^/^+ if any, occasioned by such attendance, or, if they think fit, they may attend. apply by summons for liberty to attend at the expense of the estate, or to have the conduct of the action either in addition to or in substitution for any of the parties who shall have been directed to attend. 43. An order is to be drawn up on a summons to be taken out by Order, the plaintiff or the party having the conduct of the action, stating the parties who shall have been directed to attend and such of them (if any) as shall have elected to attend at their own expense, and such order is to be recited in the chief clerk's certificate. XI. — Advertisements for Creditors and Claimants. 44. Where a judgment or order is given or made, whether in Court Claimants not or in chambers, directing an account of debts, claims, or liabilities, or pr^fo'be" an inq[uiry for heirs, next of kin, or other unascertained persons, excluded, unless otherwise ordered, all persons who do not come in and prove their claims within the time, which may be fixed for that purpose by advertisement, shaU be excluded from the benefit of the judgment or order (c). {c) This rule is taken from Cons. Ord. XXXV. r. 12. After the time fixed by the advertisement no claim can be received (except in caee of an adjournment) without special leave ; see r. 57, post. After distribution under a decree, persons making further claims may proceed by action against those persons who have received the assets, but not against the executors who are indemnified by the decree {Clegg v. Sowland, 3 Eq. 368 ; David v. Frowd, 1 My. & E. 209 ; GoodY. Blewitt, 19 Ves. 339 ; GreigY. Somerville, IE. &M. 338 ; Thomas v. Griffith, 2 Giffl. 604 ; 2 De Gr. F. & J. 555) ; and even where the assets have been distributed without a suit the executors ought not to be made parties {Hunter v. Tmmg, 4 Ex. D. 256). For the -practice where a fund becomes distributable after a great lapse of time and some only of the creditors come in to claim, see Ashley v. Ashley, 1 Ch. D. 243 ; affirmed 4 Ch. D. 757. A creditor may come in as long as there are assets [Lashley v. Sogg, ] 1 Ves. 602 ; Sartwelly. Colvin, 16 Beav. 140 ; Se Metcalfe, 13 Ch. D. 236) ; and although the Kk2 500 RULES OP THE SUPEEME COURf, 1883: Ord. LV. fund has been apportioned {Cfillespu v. Alexander, 3 Ruas. 130 ; Montefioriv. Browne, 7 H. Jj. C. 241 ; 4 Jur. N. S. 1201 ; Knierim v. Schmauss, 10 W. R. 860). In Frowse v. Spurgin, 6 Eq. 99, the plaintiff, a residuary legatee was held [liable to pay legacies more than twenty years after the testator's death, owing to the form, of the certificate to which he had assented. Advertise- ments. By whom prepared. Signature of chief clerk. Time to be fixed for send- ing in ciaiflis. Form of ad- vertisement. Office copies of affidavits. 45. Where an advertisement is required for the purpose of any pro- ceeding in chambers, a peremptory advertisement, and only one, shall be issued, unless for any special reason it may be thought necessary to issue a second advertisement or further advertisements, and any advertisement may be repeated as many times and in such papers aa may be directed (d). {d) This rule is taken from Cons. Ord. XXXV. r. 35. As to the advertisements required, see Wood v. Weightman, 13 Eq. 434. 46. The advertisement shall be prepared by the party prosecuting the judgment or order, and submitted to the chief clerk for approval, and when approved shall be signed by him, and such signature shall be sufficient authority to the printer of the Gazette to insert the same(e). (e) This rule is taken from Cons. Ord. XXXV. r. 36. See note to r. 45. 47. Advertisements for creditors and other claimants shall fix a time, within which each claimant, not being a creditor, is to come in and prove his claim, and within which each creditor is to send to the executor or administrator of the deceased, or to such other party as the judge shall direct, or to his solicitor, to be named and described in the advertisement, the name and address of such creditor and the full particulars of his claim, and a statement of his account and the nature of the security (if any) held by him. Such advertisements shall be in one of the Forms No. 2 and 3, in Appendix L., with such variations as the circumstances of the' case may require. At the time of directing such advertisement a time shall be fixed for adjudicating on the claims (/). (/) This rule is taken from Cons. Ord. XXXV. i-. 37, and General Order, 27th May, 1865, r. 1. For these forms, see infra. As to using in chambers advertisements previously issued by the executor, see Cuthbert v. Wharmhy, "W. N. (1869), 12. 48. Claimants filing affidavits shall not be required to take office copies, but the person who examines the claims shall take office copies and produce the same at the hearing, unless the judge shall otherwise direct (^). (y) This rule is from Cons. Ord. XXXV. r. 39. A claimant may be cross-examined upon his affidavit in support of his claim [Cast V. Poyser, 3 Sm. & Gifi. 369 ; affirmed, 26 L. J. Ch. 353) ; and aiter his cross- examination the other side may file fresh evidence [Lancefield v. lyguldm, W. N. (1872), 111; 20 W. R. 621). Creditor not to make affi- 49. No creditor need make any affidavit nor attend in support of RULES OP THE SUPREME COURT, 1883. 5qj his claim (except to produce his security) unless lie is served with a Ord. LV. notice requiring him to do so as hereinafter provided (A). davit nor (/i) This Rule is taken from General Order, 27tli May, 1865, r. 2. req^ed^^^^ 50. Every creditor shall produce the security (if any) held by him Creditor to before the judge at such time as shall be specified in the advertise- produce seou- .-t" ,. . f,. ,.,.. rity or other ment tor tnat purpose, bemg the time appointed for adjudicating on evidence. the claims, and every creditor shall, if required by notice in writing (Form No. 4 in Appendix L.) to be given by the executor or adminis- trator of the deceased, or by such other party as the judge shall direct, produce all other deeds and documents necessary to substantiate his claim before the judge at his chambers at such time as shall be specified in such notice (i). (j) This rule is from General Order, 27th May, 1865, r. 3. As to disputing debts in chambers, and in particular the debt of the plaintiff creditor, see Gardell v. Mflwke, 6 Eq. 464. 51. In case any creditor shall neglect or refuse to comply with the Creditor fail- last preceding rule, he shall not be allowed any costs of proving his ™gto comply claim unless the judge shall otherwise direct (A). allowed costs. (A) This rule is from General Order, 27th May, 1865, j.. 4. As to costs of proving, see rule 58, post. 52. The executor or administrator of the deceased, or such other claims to be party as the judge shall direct, shall examine the claims of creditors e^a™i°^ed and . •' ° , , . , , ■,, . o , result verified sent m pursuant to the advertisement, and shaU ascertain, so far as he by affidavit of is able, to which of such claims the estate of the deceased is justly executor or liable, and he shall, at least seven clear days prior to the time appointed by appointed for adjudication, file an afiidavit (Form No. 5 in Appen- judge- dix L.), to be made by such executor or administrator, or one of the executors or administrators, or such other party, either alone or jointly with his solicitor or other competent person, or otherwise, as the judge shaU direct, verifying a list of the claims (Form No. 6 in Appen- dix L.), the particulars of which have been sent in pursuant to the advertisement, and stating to which of such claims, or parts thereof respectively, the estate of the deceased is in the opinion of the deponent justly liable, and his beKef that such claims, or parts thereof respec- tively, are justly due and proper to be allowed, and the reasons for such belief {T). (0 This rule is taken from General Order, 27th May, 1865, r. 5. For these forms, see infra. 53. In case the judge shall think fit so to direct, the making of the Affidavit may affidavit referred to in the last preceding rule shall be postponed tiU ^^ postponed, after the day appointed for adjudication, and shall then be subject to such directions as the judge may give {m). (m) This rule is from General Order, 27th May, 1866, r. 6. 54. Where on the day appointed for hearing the claims any of them Adjournment, remain undisposed of, an adjournment day for hearing such claims 502 EXILES OF THE STJPEEME OOTJRT, 1883. Ord. LV. Close of evidence. Adjudication on claims. Notice to creditor of aHowanoe or disallo-wance of claims. Special leave to make claims after time fixed by advertise- ment. Bhall be fixed, and where furtlier evidence is to be adduced, a time may be named within which the evidence on both sides is to be closed, and directions may be giien as to the mode in which such evidence is to be adduced (ra). (k) This rule is from Cons. Ord. XXXV. r. 40. 55. At the time appointed for adjudicating upon the claims of creditors, or at any adjournment thereof, the judge may in his discre- tion allow any of the claims, or any part thereof respectively, without proof by the creditors, and direct such investigation of all or any of the claims not allowed, and require such further particulars, informa- tion, or evidence relating thereto as he may think fit, and may, if he so think fit, require any creditor to attend and prove his claim, or any part thereof, and the adjudication on such claims as are not then allowed shall be adjourned to a time to be then fixed (o). (o) This rule is from General Order, 27th May, 1865, r. 7. 56. Notice (Form No. 7 in Appendix L.) shall be given by the executor or administrator, or such other party as the judge shall direct, to every creditor whose claim, or any part thereof, has been allowed without proof by the creditor, of such allowance, and to every such creditor as the judge shall direct to attend and prove his claim or such part thereof as is not allowed by a time to be named in such notice (Form No. 8 in Appendix L.), not being less than seven days after such notice, and to attend at a time to be therein named, being the time to which the adjudication thereon shall have been adjourned, and in case any creditor shall not comply with such notice, his claim, or such part thereof as aforesaid, shall be disallowed (p). {p) This rule is from General Order, 27th May, 1865, i. 8. Tor these forms, see mfra> 57. After the time fixed by the advertisement no claims shall be received (except as hereinbefore provided in case of an adjournment), unless the judge at chambers shall think fit to give special leave, upon application made by summons, and then upon such terms and con- ditions as to costs and otherwise as the judge shall think fit (§'). (j) This rule is from General Order, 27th May, 1865, r. 10. See notes to rule 44, ante, p. 499. Costs of creditor esta- blishing his debt. 58. A creditor who has come in and established his debt in the judge's chambers under any judgment or order shall be entitled to the costs of so establishing his debt, and the sum to be allowed for such costs shall be fixed by the judge, unless he shall think fit to direct the taxation thereof ; and the amount of such costs, or the sum allowed in respect thereof, shall be added to the debt so established (»•). (r) This rule is taken from Cons. Ord. XL. r. 24. It does not affect the costs to ■which the plaintiflE in a creditor's suit is entitled {Flintoffy. Baynes, 4 Ha. 309). In general, all creditors required to prove their debts, are allowed a fixed sum of II. 13*. id, if the debt is under 51. and 21. 2s. if above (Seton, 832). In Waterlow v. RULES OP THE SUPREME COURT, 1883. 503 ns7m ■'^ ^' ^" ^®^' *■ ^" **** '"""• ^»'«'"^''« I"- -S"*-', 39 L. J. Oh. 425 ; W. N. Ord. LV. (1S70), 106, three guineas was held a proper sum to aUoiv. A creditor failing to '■ ^duoe his security or other eTidenoe of his claim, -wiU get no costs (rule 51). Ureditora attending under rule 50, to produce securities or other evidence, -will he allowed a proper fee for such attendance. Where an estate, which was insufficient, had been apportioned amongst the creditors, but not actually distributed, a creditor was allowed to come in on payment of the costs of the application and of the reap- portionment {AngieU v. Saddon, 1 Mad. 529). If a person claiming to be a creditor Costs of a fails in his claim, he must pay the costs [Batch v. Searlcs, 2 Sm. & G. 157 ; leomans person failing •^Itmjnes, 24 Beav. 127 ; Colyer v. Colyer, 10 W. R. 748 ; and see Wright t. Larmuth, ™ ^s claim W. N. (1869), 36). The proper course is to ask for the costs when the claim is to be a adjudicated on, but an order for payment of them may be made on a distinct sum- creditor, mons [Teomans v. Haynes) ; and notwithstanding the pendency of an appeal against the order disallowing the claim [Colyer v. Colyer). 69. A list of all claims allowed shall, when required hy the judge, Claims be made out and left in the judge's chambers by the person who ex- allowed, amines the claims (*). (s) This rule is taken from Cons. Ord. XZXV. i. 44. 60. Where any judgment or order is made for payments by the Pay- Notice to master-general to creditors, the party whose duty it is to prosecute "t^^^fi,"^ such judgment or order, shall send to each such creditor or his soU- ready, citor (if any) a notice (Form No. 9 in Appendix L.), that the cheques may be received from the Paymaster-general, and such party shall, when required, produce such judgment or order and any other papers necessary to enable such creditors to receive their cheques and get them passed (t). [t) This rule is from G-enefal Order, 27th May, 1865, i. 12. See this form, infra. 61. Every notice by this order required to be given to creditors or Notice by post other claimants shall, unless the judge shall otherwise direct, be *? ^^ ^'°^- deemed sufficiently given and served if transmitted bythe post prepaid to the creditor or other claimant to be served according to the address - given in the claim sent in by him pursuant to the advertisement, or in case such creditor or other claimant shall have employed a solicitor, to such solicitor according to the address given by him («). («) This rule is from General Order, 27th May, 1865, r. 13. XH. — Interest. 62. Where a judgment or order is made directing an account of the Interest debts of a deceased person, unless otherwise ordered, interest shall be °"- ^^^^s- computed on such debts as to such of them as carry interest after the rate they respectively carry, and as to all others after the rate of four per cent, per annum from the date of the judgment or order (v). [v) This and the two following rules are from Cons. Ord. XLII. rr. 9, 10 and 11. 63. A creditor whose debt does not carry interest, who comes in and Debts not establishes the same before the judge in chambers under a judgment P^rrymg or order of the court or of the judge in chambers, shall be entitled to interest upon his debt at the rate of four per cent, per annum from the date of the judgment or order out of any assets which may remain 504 Ord. LV. Interest on legacies. Result of proceedings before chief clerk to te embodied in concise cer- tificate. Reference to judgment or order, docu- ments or evidence. Poim of certificate. Transcript. RULES OF THE SUPREME COURT, 1883. after satisfying the costs of the cause or matter, the debts established, and the interest of such dehts as hy law carry interest (w). (w) See note to rule 62. These rules do not apply to decrees made before 1841 I Wheeler \. Gill, 19 Eq. 316). A creditor is entitled to interest on a debt ■which accrues subsequently to the judg- ment only from the time of proof {Zainson T. Laimon, 18 Beav. 7 ; 17 Jur. 1044). As to allowing interest on the arrears of an annuity which the testator had cotc- nanted to pay, see Jmkms v. Brya/nt, 16 Sim. 272, and oases there cited. As to deducting income tax, see Bvnning v. Sendermn, 3 De G-. & S. 702 ; Orane v. Kilpin, 6 Eq. 334. _ The direction to compute interest may be given on further considera- tion {Flintqfv. Saynes, 4 Ha. 309). See further as to interest, DanieU, 1027 et aeq. If the estate is insolvent a creditor (under sect. 10 of the Judicature Act, 1875) is entitled to interest only up to the date of the judgment for administration {Re Summers, 13 Ch. D. 136). 64. "Where a judgment or order is made directing an account of legacies, interest shall be computed on such legacies after the rate of four per cent, per anniim from the end of one year after the testator's death, unless otherwise ordered, or uidess any other time of payment or rate of interest is directed by the will, and in that case according to the will (a;). [x) See note to rule 62 ; and as to interest on legacies generally, see Re Olive, W. N. (1884), 81 ; Seton, 874 ; DanieU, 1037. Interest computed on an advance- ment is computed from the death of the testator {Hilton v. Hilton, 14 Eq. 468' ; Field V. Seward, 6 Ch. D. 638. See also Stewart v. Stewart, 15 Ch. T>. 539). XIII. — Certificates of the Chief Clerk. 65. The directions to be given for or touching any proceedings be- fore the chief clerk shall require no particular form, but the result of such proceedings shall be stated in the shape of a concise certificate to the judge. It shall not be necessary for the judge to sign such certi- ficate, and unless an order to discharge or vary the same is made, the certificate shall be deemed to be approved and adopted by the judge (y). {if) This rule is taken from 15 & 16 Vict. c. 80, s. 32. 66. The certificate of the chief clerk shall not, unless the circum- stances of the case render it necessary, set out the judgment or order or any documents or evidence or reasons, but shall refer to the judg- ment, or order, documents, and evidence or particular paragraphs thereof, so that it may appear upon what the result stated in the certificate is founded (z). (z) This rule is taken fi'om Cons. Ord. XXXV. r. 47. 67. The certificate of the chief clerk shall be in the Porm No. 10 in Appendix L., with such variations as the circumstances may require, and when prepared and settled shall be transcribed in such form, and within such time as the chief clerk shall require, and shall be signed by the chief clerk either then or (if necessary) at an adjournment to be made for the purpose (o). (a) This rule is taken from Cons. Ord. XXXV. r. 47. Tor this form, see infra. RULES OF THE SUPREME COURT, 1883. 505 68. Where an account is directed, the certificate shall state the Ord. LV. result of such account, and not set the same out hy way of schedule, contents of but shall refer to the account verified by the affidavit filed, and shall certificate in specify by the numbers attached to the items in the account which, account. if any, of such items have been disallowed or varied, and shall state what additions, if any, have been made by way of surcharge or otherwise, and where the account verified by the affidavit has been so altered that it is necessary to have a fair transcript of the account Transcript, as altered, such transcript may be required to be made by the party prosecuting the judgment or order, and shall then be referred to by the certificate. The accounts and the transcripts (if any) referred to Accounts to by certificates shall be filed therewith, or retained in chambers ^^°^^'^- and subsequently filed, as the judge in chambers may direct. No copy of any such account shall be required to be taken by any party (5). (A) This rule is taken from Cons. Ord. XXXV. r. 46. 69. Any party may, before the proceedings before the chief clerk Reference to are concluded, take the opinion of the judge upon any matter arising wq'' 6*^0. in the course of the proceedings without any fresh summons for the ceedings are purpose (c). concluded. (c) Of. 15 & 16 Vict. c. 80, ss. 29, 33. As to the right of a suitor to adjourn any matter before the judge, see XXpton v. Brovm, 20 Oh. D. 731 ; 30 W. R. 817 ; Re Watts, 22 Oh. D. 5 ; and as to an appeal in such a case, see Rhodes v. Rhodes, 1 Oh. 483. See also r. 15 and note thereto, ante, p. 492. The objections to the chief clerk's finding should, if possible, be taken before the certificate is made and at once referred to the judge in chambers, so as to save expense {Parr v. Xovegrove, 6 W. R. 201). If a solicitor should unreasonably insist upon his right to take a matter before the judge, e. g., insist on referring every disputed item in an account, he may be ordered to pay the costs personally ( Upton v. Srowri). 70. Every certificate, with the accounts (if any) to be filed there- Certificate to with, shall be transmitted by the chief clerk to the central office to oentol office.^ be there filed, and shall thenceforth be binding on all the parties to Application the proceedings unless discharged or varied upon application by to discharge summons to be made before the expiration of eight clear days after °^ ^^^' the filing of the certificate; provided that the time for applying to discharge or vary certificates, to be acted upon by the Paymaster- general without further order, or certificates on passing receivers' accounts, shall be two clear days after the filing thereof (d). {d) Cf . 15 & 16 Vict. 0. 80, s. 34 ; Cons. Ord. XXXV. rr. 62—66. The fact of a claim being disaUowed by the chief clerk in one suit, was held no Certificate, bar to its being prosecuted in another (Teed v. Beere, 7 W. R. 394 ; but see contra, how far an Thomas v. Griffith, 2 Gifi. 504 ; 2 De Gr. E. & J. 562). See, howeyer, as to new estoppel, claimants coming in after the certificate is adopted, r. 44, ante, p. 499. The certificate cannot be objected to unless the application to vary or discharge Application it is properly made [Lamb v. Orton, 8 W. R. 111). The application to vary will to vary must be adjourned into Court, if necessary ; and as to what costs are to be paid by the be properly unsuccessful party, see Re General Msiates Co., 8 Eq. 123 ; Alcook v. GUI, W. N. made. /iQyA\ 270. If the cause is coming on to be heard on further consideration, such hearing and Coming on the application to vary will come on together {Crompton v. Ruber, 3 "W. R. 347 ; with further Mudson V. Carmichael, 18 Jur. 862). And where such hearing and application to consideration. 506 RULES OF THE SUPREME COURT,. 1883. Ord. LV. Where error is apparent. Evidence on application to vary. vary come on together, it may be necessary to appeal from the order as a whole ; see BUxam v. Whipham, 8 W. R. 2. "When there was error apparent in the chief clerk's certificate, and the decree founded thereon, the Court altered and corrected both the decree and the certificate, ■without a rehearing (Gradock v. Owen, 2 Sm. & C 241) ; and of. FureellY. Manning, 3 Jur. N. S. 1070, where, in a somewhat similar case, the Court gave leave to move to vary the chief clerk's certificate, and to present a petition of rehearing. As to rectifying a direction to take accounts on rehearing, see Pennell v. Millar, 23 Beav. 172. Affidavits not used before the chief clerk cannot be used on applications to vary his certificate [Be Hooper, 9 Jur. N. S. 570 ; and see Whitworth v. Whyddon, 2 M. & G. 56; Fleming v. Bast, Kay, App. Ui.). Nor was cross-examination ia Court allowed on those afSdavits which were used before bim [Dawkins v. Morton, 10 W. R. 339). Whether affidavits referred to in tbe certificate can be read on further consideration when there is no summons to vary is doubtful : see Re Brier, 26 Ch. D. p. 242. Where the summons had been obtained within the eight days, even though not returnable imtil after that time, it was held sufficient ( Wycherley v. Barnard, John. 41 ; but see Semhaw v. Angell, 9 Eq. 451) ; and where it was impossible to move on a seal day within the eight days the Court allowed the motion to be made on a day not a seal day, and to be saved tiU next seal [Cross v. Maltty, 8 W. R. 646). The eight days ran during vacations ( Ware v. Watson, 7 De Gr. M. & G. 739 ; and see Ee Jones, 8 W. R. 66). When a motion was made for payment of money found due on a certificate before the eight days had elapsed, the Court ordered the motion to stand over till the expiration of that period {Douthwaite v. Spensley, 18 Beav. 74). Certificate miy, under special cir- cumstances, be discharged after it has become binding. 71. The judge may, if the special circumstances of the case require it, upon an application by motion or summons for the purpose, direct a certificate to he discharged or varied at any time after the same has become binding on the parties (e). (e) The certificate will only be opened imder special circumstances {Se Martin, Dier v. Martin, W. N. (1884), 112; Sowell v. Eeightley, 8 De Q. M. & G. 325 ; 2 Jur. N. S. 455 ; Reeve v. Beeve, W. N. (1871), 52) ; for the certificate, whatever effect it may have on the hearing on further consideration, is conclusive against parties who have neither taken out a summons nor moved to have it varied [Smith v. Armstrong, 6 De G. M. & G. 160) ; and see Jaquet v. Jaquet, 7 W. R. 543 ; Leigh v. Turner, 14 W. R. 361 ; Aspinall v. Brown, 29 Beav. 402 ; Ware v. Watson, 7 De G. M. & G. 739 ; and it may operate to revive a statute-barred claim [Browse V. Spiirgin, 6 Eq. 99). In Be Dove, 27 Ch. D. 687, the time for applying to vary the certificate was extended at the hearing on further consideration, but the judge directed a summons to be taken ov!!, pro form&. Where an order is made varying a certificate, the certificate itself, i.e. the actual document, is not altered [Fox v. BearUoclc, 30 W. R. 342 ; W. N. (1882), 9). Adjournment of matter in chambers. XIV. — Further Consideration. 72. Where any matter originating in chambers shall, at the original or any subsequent hearing, have been adjourned for further considera- tion in chambers, such matter may, after the expiration of eight days and within fourteen days from the filing of the chief clerk's certificate, be brought on for further consideration by a summons, to be taken out by the party having the conduct of the matter, and after the ex- piration of such fourteen days by a summons, to be taken out by any other party. Such summons shall be in the form following : — " That this matter, the further consideration whereof was adjourned by the order of the day of 18 , may be further con- sidered," and shall be served six clear days before the return. Pro- vided that this rule shall not apply to any matter, the further con- RULES 0¥ THE SUPREME COURT, 1883. 507 sideration wliereof shall, at tlie original or any subsequent hearing, Ord. LV. have been adjourned into Court (/). (/) This rule is taken from Regulations as to Business, Aug. 8, 1857, r. 18. XV. — Megistering and Drawing up of Orders in Chambers. 73. Notes shall be kept of all proceedings in the judges' chambers Notes to te with proper dates, so that all such proceedings in each cause or matter og^^;^™^^' may appear consecutively, and in chronological order, with a short chambers, statement of the questions or points decided or ruled at every hearing (^r). {g) This rule is taken from Cons. Ord. XXXV. r. 57. 74. The judge may direct any order made in chambers to be drawn Order made in up by the registrars, and any such order shall be entered in the same S'^^^^t^d'to' manner as orders madg in open Court {h). he drawn up by registrar. . (A) Cf. Cons. Ord. XXXV. r. 32 ; 15 & 16 Viet. c. 80, s. 14. An order made va. ' ° chambers must, it would seem, be drawn up and entered before it can be enforced {Ballard v. Tomlinson, W. N. (1883), 90 ; 31' W. R. 663) ; unless it comes within the provisions of Ord. LII. r. 14, ante, p. 481. As to appeals from orders made in chambers, see Judicature Act, 1873, o. 50, ante, p. 266. 75. The Forms Nos. 11 to 24 in Appendix L. shall be used for the Forms, respective purposes therein mentioned, with such variations as circum- stances may require («'). (i) For these forms, see infra. [Ord. LVI. refers only to Admiralty actions.] OEDEE LVII. Inteepieadee. 1. Eelief by way of interpleader may be granted, — Interpleader : (a.) Where the person seeking relief (in this order called the appli- by private cant) is under liability for any debt, money, goods, or person; chattels, for or in respect of which he is, or expects to be, sued by two or more parties (in this order called the claimants) making adverse claims thereto : (b.) Where the applicant is a sheriff or other officer charged with by sherifE or the execution of process by or under the authority of the °^^^^ °^°^^- High Court, and claim is made to any money, goods, or chattels taken or intended to be taken in execution under any process, or to the proceeds or value of any such goods or chattels by any person other than the person against whom the process issued {k). (h) The Interpleader Act, 1 & 2 Will. IV. c. 58, and the sections of the Common 1 &2WiU. IV. Law Procedure Act, 1860, relating to interpleader (except sect. 17), on which this o. 58. 508 EULES OP THE SUPREME COUET, 1883. Ord. LVn. What appli- cant must prove. Titles of claimants may- be adverse. Time of application. Summons. Stay of pro- ceedings. Proceedings when claim- ants appear. Po-wer to decide sum- marily. Question of law. Claimant not appearing or refusing to comply -with order may be barred. order is fouaded, are repealed by the Statute La-w Revision and CivU Procedure Act, 1883. A foreigner without the jurisdiction may be made to interplead {Credits Genmdeuse . V. Van Weede, 12 Q. JB. D. 171), but not the Crown {Candtj v. Maughan, 1 D. & L. 745). 2. The applicant must satisfy the Court or a judge by affidavit or other-wise — (a.) That the applicant claims no interest in the subject-matter in dispute, other than for charges or costs ; and (b.) That the applicant does not collude with any of the claimants ; and (c.) That the applicant is -willing to pay or transfer the subject- matter into Court or to dispose of it as the Court or a judge may direct. 3. The applicant shall not be disentitled to relief by reason only that the titles of the claimants have not a common origin but are adverse to and independent of one another. 4. Where the applicant is a defendant, application for relief may be made at any time after service of the writ of summons. "*5. The applicant may take out a summons calling on the claimants to appear and state the nature and particulars of their claims, and either to maintain or relinquish them. 6. If the application is made by a defendant in an action the Court or a judge may stay all further proceedings in the action. 7. If the claimants appear in pursuance of the summons, the Court or a judge may order either that any claimant be made a defendant in any action already commenced in respect of the subject-matter in dis- pute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may direct which of the claimants is to be plaintiff, and which defendant. 8. The Court or a judge may, with the consent of both claimants or on the request of any claimant, if, having regard to the value of the subject-matter in dispute, it seems desirable so to do, dispose of the merits of their claims, and decide the same in a summary manner and on such terms as may be just. 9. "Where the.question is a question of law, and the facts are not in dispute, the Court or a judge may either decide the question without directing the trial of an issue, or order that a special case be stated for the opinion of the Court. If a special case is stated, Ord. XXXTV. shall, as far as applicable, apply thereto. 10. If a claimant, having been duly served with a summons calling on him to appear and maintain, or relinquish, his claim, does not appear in pursuance of the summons, or, having appeared, neglects or refuses to comply' with any order made after his appearance, the Court or a judge may make an order declaring him, and all persons claiming under him, for ever barred against the applicant, and persons claiming under him, but the order shall not affect the rights of the claimants as between themselves. RULES OF THE SUPREME COURT, 1883. 509 11. Except where otherwise provided by statute, the judgment in Ord. LVII. any action or on any issue ordered to be tried or stated in an inter- Decision to be pleader proceeding, and the decision of the Court or a judge in a sum- final, mary way, under rule 8 of this order, shall be final and conclusive against the claimants, and aU persons claiming under them, unless by special leave of the Court or judge, as the case may be, or of the Court of Appeal {I). (1) By sect. 17 of the C. L. P. Act, 1860, "the judgment in any such action or C. L. P. Act, issue as may be directed by the Court or judge in any interpleader proceedings, and 1860, o. 17. the decision of the Court or judge in a summary manner, shall be final and conclu- sive against the parties and all persons claiming by, from, or under them;" and see sect. 20 of tiie Appellate Jurisdiction Act, 1876, ante, p. 289. See, as to the construction of these sections, Dodds v. Shepherd, 1 Ex. D. 75 ; Turners. Bridgett, 9 Q. B. D. 55; WittY. Parker, 46 L. J. Q. B. 450. As to the construction of rule 11, see Burstall v. Bryant, 12 Q. B. D. 103 ; Westerman v. Bees, W. N. (1883), 228. 12. When goods or chattels have been seized in execution by a Sale of goods sherifE or other officer charged with the execution of process of the ^^y^u™ ^^''' High Court, and any claimant alleges that he is entitled, under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the Court or a judge may order the sale of the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may be just. 13. Ords. XXXI. and XXXVI. shall, with the necessary modifica- Ords.XXXI. tions, apply to an interpleader issue ; and the Court or judge who tries ^^ ^ppiy ^ the issue may finally dispose of the whole matter of the interpleader interpleader proceedings, including all costs not otherwise provided for. issue. 14. Where in any interpleader proceeding it is necessary or expe- One order dient to make one order in several causes or matters pending in several j^^matterTin divisions, or before different judges of the same division, such order several divi- may be made by the Court or judge before whom the interpleader for^aiSerent proceeding may be taken, and shall be entitled in all such causes or judges of matters ; and any such order (subject to the right of appeal) shall be ^^""^ diviBion. binding on the parties in all such causes or matters. 15. The Court or a judge may, in or for the purposes of any inter- Costs. pleader proceedings, make all such orders as to costs (to) and aU other matters (w) as may be just and reasonable. (m) See, as to costs, Hansen T. Maddox, 12 Q. B. D. 100 ; SearU v. Matthews, "W. N. (1883), 176 ; C v. D., W. N. (1883), 207. (») See Sowell v. Damon, 13 Q. B. D. 67. OEDEE LVni. Appeals to the Court op Appeai. 1. AU appeals to the Court of Appeal (o) shall be by way of rehear- Rehearing by ing, and shall be brought by notice of motion in a summary way, and ™° °°' no petition, case, or other formal proceeding other than such notice of motion shall be necessary. The appellant may by the notice of motion appeal from the whole or any part of any judgment or order, and the 510 EULES OP THE SUPREME COURT, 1883. Ord. LVIII. notice of motion shall state wlietlier the whole or part only of such judgment or order is complained of, and in the latter case shall specify such part (jb), (o) As to the oonstitution of the Court of Appeal, see Judicature Act, 1875, s. 4, ante, p. 278, and Appellate Jurisdiction Act, 1876, s. 15, ante, p. 287 ; as to itsjuris- diotion, see Judicature Act, 1873, ss. 18, 19, ante, pp. 262, 253, and r. 4, post, p. 611 ; and as to the style of the judges, see Judicature Act, 1877, s. 4, ante, p. 290. No judge can now rehear a case {Re St. Namire Co., 12 Ch. D. 88 ; Ee Manchester Building Society, 24 Ch. D. 488) ; nor can the Court of Appeal rehear an appeal, even ■vrhere the judgment had heen obtained by fraud [Flower v. Lhyd, 6 C3i. D. 297). Semble, in such a case the proper course is to bring a fresh action to set aside the judgment on the ground of fraud {ibid.) ; but see Flower v. Lloyd, 10 Ch. D. 327. (p) Appeals are not allowed where the amount at state is ioisignificant {Se Cross, 7 Ch.. 221) ; nor ia the following cases : — (1.) From an ordfer made by consent, or as to costs only iu the discretion of the Court, except by leave ; see Judicature Act, 1873, s. 49, and eases there cited, ante, p. 265. (2.) Where the submission was to the judge personally {Ex parte Wilson, 7 Ch. 45 ; Bustros v. White, 1 Q. B. D. 423 ; 45 L. J. Q. B. 642). (3.) Where it is provided by Act of Parliament that the decision of the Court below shall be final (Appellate Jurisdiction Act, 1876, s. 20, ante, p. 289). (4.) Where the order was made in a matter within the discretion of the judge {Oolding v. Wharton Saltworks Co., 1 Q. B. D. 374 ; Sheffield v. Sheffield, 10 Ch. 206 ; Watson v. Bodwell, 3 Ch. D. 380 ; 24 W. E. 1009) ; when the Court of Appeal will only interfere in a very strong case {Be Martin, Hunt V. Chambers, 20 Ch. D. 365 ; Davy v. Garrett, 7 Ch. D. 473 ; Jarmain v. Chatterion, 20 Ch. D. p. 499). As to appealing from the refusal oi a judge to commit for contempt, see Jarmain V. Chafterton, 20 Ch. D. 493 ; Ashworth v. Outram, 5 Ch. D. 943. As to undertaHngs not to appeal, see Be Hull and County Bank, 13 Ch. D. 261. As to appeals from orders in chambers, see Judicature Act, 1873, s. 60. Any person interested may appeal {Be Markham, 16 Ch. D. 1 ; Crawcoury. Salter, 30 W. R. 329 ; Daniell, 1269) ; but if not a party to the record he must obtain permission from the Court of Appeal, the application for which is made ex parte {Be Markham). Persons served with notice of a decree {Ellison v. Thomas, 1 De G-. J. & S. 18 ; B^idd V. Cheyne, 18 Jur. 348), and one of several co-plaintifEs {Beckett v. Attwood, 18 Ch. D. 64 ; 29 W. E.'796) can appeal. As to an appeal by a party to a special case who did not appear at the hearing, see Alhim v. Dickinson, 9 Q. B. D. 632. Where the plaintiff in a representative suit obtains an order with which one of the class represented is dissatisfied, the latter cannot appeal ; his proper course is to apply to the Court below to be made a defendant {Watson v. Cave (No. 1), 17 Ch. D. 19). Rehearings and appeals. No appeal for trifling amount, from consent orders ; for costs alone ; from point submitted to judge ; where deci- sion is final ; from orders in judge's discretion. Who may appeal. Notice of appeal to par- ties afEeoted. Service. 2. The notice of appeal shall he served upon all parties directly affected by the appeal, and it shall not be necessary to serve parties not so affected (q) ; but the Court of Appeal may direct notice of the appeal to be served on all or any parties to the action or other pro- ceeding, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties. Any notice of appeal may be amended at any time as the Court of Appeal may think fit (r). {q) All parties who will be affected ought to be served {Stmter v. Stmter, 24 W. R. 604), and if such a party is not served he may nevertheless appear and obtain his costs {Be New Callao, 22 Ch. D. 484). On the other hand, a party served but appearing unnecessarily will be allowed no costs {Ex parte Webster, 22 Ch. D. 136). An informal notice of appeal is sufficient {Little's Case, 8 Ch. D. 806) ; notice of an intention to give notice of appeal is not {Be New Callao ; Be Bh/th and EULES OF THE SUPREME COUHT, 1883. 511 Tomff, 13 C!h. D. 416). As to substituted service, see JEx parte Wariura, 24 Ord. LVIII. Oil. D. 364 ; 25 Oh. D. 336. Wiere the appeEant has -withdrawn his appeal with the consent of the other side he cannot afterwards revoke his withdrawal {Watson v. Cave (No. 2), 17 Oh. D. 23). (r) The Oourt will allow an amendment without any special circumstances being Amendment, shown {Se Stockton Iron Co., 10 Oh. D. 335). 3. Notice of appeal from any judgment, whetlier final or interlocu- Length of tory, or from a final order, shall te a fourteen days' notice, and notice ^°^<=8- of appeal from any interlocutory order shall be a four days' notice (s). («) See Se Stockton Iron Co., 10 Ch. D. 335. As to final and interlocutory judg- ments and orders, see Judicature Act, 1875, s. 12, ante, p. 282. 4. The Court of Appeal shall have all the powers and duties as to Court of amendment and otherwise of the High Oourt (0, together with fuU -^Ppeal may . \ /' o receive further discretionary power to receive further evidence upon questions of fact, evidence on such evidence to be either by oral examination in Court, bv afiidavit, special ' •> ' grounds ; or by deposition taken before an examiner or commissioner. Such ■, ., J, . " 3-ud evidence further evidence may be given without special leave upon interlocutory of facts occtir- applications, or in any case as to matters which have occurred after the ^^ ^^*^^ . , , . decree, date of the decision from which the appeal is brought. Upon appeals' from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without Special leave. special leave of the Court (m). The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exercised by the said Court, notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, and Varying such powers may also be exercised in favour of all or any of the decree for respondents or parties, although such respondents or parties may not appealing. have appealed from or complained of the decision. The Oourt of Appeal shall have power to make such order, as to the whole or any part of the costs of the appeal as may be just (v). (t) As to amendments, see Clack v. Wood, 9 Q. B. D. 276 ; Williams v. Freston, Amendment 20 Ch. D. 672. • " The Court of Appeal in discharging an order may direct money paid under the order discharged to be refunded [Re British Farmers Co., 7 Oh. D. 533). («) As to the admission of fresh evidence on appeals, see Sanders v. Sanders, 19 Admission of Ch. D. 373'; 30 W. R. 281. An appellant who wishes to produce further evidence fresh evi- on the appeal should, if the evidence is documentary or by affidavit, merely give dence. notice to the other side of his intention to apply at the hearing of the appeal for leave to produce such evidence {Sastie v. Hastie, 1 Ch. D. 562 ; Justice v. Mersey Steel Co., 24 W. R. 199 ; Re Chennell, 8 Ch. D. 492) ; but if he wishes to examine fresh wifaiesses he must make a previous application by motion for leave so to do {Dicks v. Brooks, 1 3 Ch. D. 652) ; and see BxehoMge Bank v. Billinghurst, W. N. (1880), 2. As to the mode of objeotingto new evidence on an appeal, see Mitchell v. Condy, W. N. (1881), 83. Where witnesses have been examined vivd voce at the trial further evidence by affidavit of the same witnesses will not generally be admitted on an appeal {Taylor v. Grange, 15 Ch. D. 166). .Although the Court of Appeal, when called on to review the conclusion of the Court below after heaoring evidence vivA voce, will give great weight to the considera- tion that the demeanour and maimer of the witnesses are not before it, yet it will in a proper case act upon its own view of conflicting evidence {Bigsby v. Dickinson, 4 Ch. D. 24). See also Crachnally. Janson, 11 Ch. D. 1. 512 RULES OF THE SUPREME OOUET, 1883. Ord. LVIII. "Further evidenoe." Claim in ad- ministration suit. Costs. Dismissal of appeal is usually ■with Security for An appellant is not at liberty to raise a new case inconsistent with that raised before the Court below, even, though the evidence supports such a case {JEx parte Reddish, 5 Ch. D. 882). The -words "further evidence" mean evidence not used at the trial or hearing in the Court below [Re Chennell, 8 Oh. D. p. 505). Further evidence on an appeal from an order rejecting a creditor's claim in an administration suit cannot be admitted without leave [Norton v. Compton, 27 Ch. D. 392). («;) As a general rule a successful appellant gets his costs {Mem. 1 Ch. D. 41 ; Olivamt v. Wright, 45 L. J. Ch. 1) ; but he may be deprived of them for any sufficient reason. Thus, where an appellant succeeded on a point not raised in the Court below [Sussey v. Home Payne, 8 Ch. D. 670 ; affirmed, 4 App. Cas. 311 ; Goddard v. Jeffreys, 46 L. T- 90* ; and see Chard v. Jervis, 9 Q. B. D. 178), or failed in proving allegations of fraud, and succeeded on a mere point of law (Ex parte Cooper, 10 Ch. D. 313 ; Re Sarrison, 13 Ch. D. 603), he got no costs ; and so where he has been guilty of misconduct. Where the Court of Appeal reverses the decision below and dismisses the action with costs, this will not include costs incurred in chambers under the decree which is reversed [Marshall v. Berridge, 19 Ch. D. 245). If the appeal is dismissed it is usually with costs ; but, for misconduct of the respondent or other sufficient reason, the dismissal may be without costs. See Re Blyth and Tomg, 13 Ch. D. 416 ; Re Speight, 13 Q. B. D. 42, ioUowedL in Hx parte Blease, W. N. (1884), 238 ; Cooper v. Vesey, 20 Ch. D. p. 636, where the appellants were innocent persons who had been defrauded. When the appeal is dismissed the Court of Appeal will not vary the order as to costs of the Court below [Sarpham v. Shaehhek, 19 Ch. D. 215 ; and see Graham v. 'Campbell, 7 Ch.'D. 490 ; 26 W. E. 336 ; 38 L. T. 195 ; Harris v. Aaron, 4 Oh. D. 749 ; 25 W. E. 353 ; 36 L. T. 43). See further, as to costs of appeals, Morgan & Wurtzburg on Costs, p. 141 et seq. As to security for costs of appeal, see rule 15, and notes thereto, poet, p. 515. Power to order new trial. Notice of cross appeal by respondent. 5. H, upon hearing of an appeal, it eliall appear to the Court of Appeal that a new trial ought to he had, it shall he lawful for the said Court of Appeal, if it shall think fit, to order that the verdict and judg- ment shall he set aside, and that a new trial shall be had. 6. It shall not, under any circumstances, he necessary for a respon- dent to give notice of motion by way of cross appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the Court below should be varied, he shaU within the time specified in the next rule, or such time as may be prescribed by special order, give notice of such intention to any parties who may be affected by such contention. The omission to give such notice shall not diminish the powers conferred by the Act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal, or for a special order as to costs {w). Costs. [id) The notice given by the respondent under this rule need not be given within the time prescribed for appealing [Ex parte Bishop, 15 Ch. D. 400). A respondent who seeks to have an order varied on a point in which the appellant has no interest, cannot proceed by notice under this rule, but must give a notice of appeal [Re Cavander, 16 Ch. D. 270) ; see, however, Ralph v. Carrick, 11 Ch. D. 873. A respondent may give notice to a co-respondent in whose favour .an order has been made that on the appeal he will ask for a variation of the order in his own favour [Ex parte Payne, 11 Ch. D. 539 ; and see Harrison v. Cornwall Minerals Ry. Co., 18 Ch. D. 334 ; Johnstone v. Cox, 19 Ch. D. 17). ** A respondent who has given cross notice of appeal under this rule is in the same position as to costs as 3 he had presented a cross appeal [Harrison v. Cornwall Minerals Ry. Co.) ; and see further, as to costs, Robinson v. irakes, 23 Ch. D. 98 ; Johnstone v. Cox ; Cracknall v. Janson, 11 Ch. D. 1 ; The Lauretta, 4 P. D. 25 ; 27 W. E. 902 ; 40 L. T. 444. RrLES OF THE SITPREME COUKT, 1883. 513 7. Subject to any special order which may be made, notice by a Ord. LVIII. respondent under the last preceding rule shall in the case of any appeal Time for from a final judgment be an eight days' notice, and in the case of an notice, appeal from an interlocutory order a two days' notice (a;). {x) See note to rule 6. 8. The party appealing from a judgment or order shall produce to Entering the proper officer (y) of the Court of Appeal the judgment or order or *^^^ an office copy thereof, and shall leave with him a copy of the notice of appeal to be filed, and such officer shall thereupon set down the appeal by entering the same in the proper list of appeals, and it shall come on to be heard according to its order in such Ust, unless the Court of Appeal or a judge thereof shaU. otherwise direct, but so as not to come into the paper for hearing before the day named in the notice of appeal (z). M See Ord. LXXI. r. l' infra. (z) An appeal from tlie refusal of an application may be set doTra witliout pro- "Proper duction of the order appealed from, or a copy of it {Smith t. QrinAley, 3 Ch. D. 80 ; ofSoer." An appeal must be entered before tbe day mentioned in the notice of appeal for Appeal from tbe hearing, or if that day happens to be in a vacation, then before the next day of refusal of an the sitting of the Court, otherwise the respondent will be entitled to have the appeal application, motion dismissed as an abandoned motion, although the notice of appeal was given Entry of in time [Re National Fwnds Assurance Co., 4 Ch. D. 305 ; Re Mansel, 7 Ch. D. 711 ; appeal. Shoetensack v. Friee, W. N. (1880), 69). But where the respondents' own delay was the cause of the appeal not having been set down, they were not allowed to raise the objection {Se Marker, 10 Ch. D. 613). A party applying to discharge an abandoned notice of appeal with costs must Costs of abam- apply on notice {Se Oakwell Collieries, 7 Ch. D. 706 ; 26 W. R. 577) ; and an appUca- doned appeal tion for the costs of such abandoned notice will not be allowed unless a previous motion, demand for them has been made {Griffin v. Allen, 11 Ch. D. 913). See also Oharlton v. Charlton, 10 Ch. D. 273. As to serving a second notice of appeal when the first had not been set down in time and the costs in such a case, see Norton v. London and North Western Sy. Co., 11 Ch. D. 118 ; 27 W. R. 773 ; 40 L. T. 697. A statement made by counsel on the hearing below that he does not intend to appeal, in consequence of which the counsel on the other side does not ask for costs, will not prevent an appeal if the undertaking not to appeal is not embodied in the order {Re Hull and Cmmty Bank, 13 Ch. D. 261). But if the appeal is dismissed the appellant wiU, if the respondent asks for them, be ordered to pay the costs in the Court below {ibid.). See Lazenby v. White, 6 Ch. 89 ; London, Chatham, and Dover Ry. v. Imperial Credit Advancing Association, 3 Ch. 231 (where the right to an injunction was involved), for cases in appeals, which appeals will be advanced. An applioation to advance should be made on notice {Re a Solicitor, 26 Sol. J. 8). The following notice was issued from the Chancery Registrars' Office, on January 29th, 1877 ; see "W. N. (1877), 88, Pt. II. " The senior registrar has been directed to give notice that, in future, appeals from interlocutory orders in any of the following oases, will be set down for hearing in a separate list : — "1. On applicationB for injunctions, prohibitions, writs of ne exeat regno, or cer- tiorari, and for stop orders on securities or documents in court. " 2. On applications for and relating to the appointment of receivers, managers, or official liquidators. " 3. On applications for enlarging the time for redemption, for payment into Court, or for doing any other act, or for taking any proceedings. "4. On applications relating to wards or infants and the management of their property. "5. On applications relating to all matters of contempt and to the execution of decrees, judgments and orders. "6. On applications relating to the discovery and inspection of docimients. "7. And, generally, on all applications relating merely to matters of practice or procedure. 514 EULES OP THE SUPREME COURT, 1883. Ord. LVIII. Papers to be left for the use of the Court. " The BoUoitor applying to set do-wn any appeal in such list wiH be required to produce his notice of motion and certify at the foot thereof the class to which it belongs." The papers required for the use of the Court should be left at least one -week before the appeal is likely to be in the paper. The papers required are, three copies- of the notice of appeal, three copies of the judgment or order appealed from, and three copies of the pleadings or any documents showing the nature of the appeal ; they should be put together in three sets so as to form a complete set for each judge (Notice, 21 Not. 1881 ; "W. N. (1881), Pt. II. 581). Time for 9. The time for appealing from any order or decision made or given ^din^up ia tlie matter of the winding-Tip of a company under the provisions of or bankruptcy the Companies Act, 1862, or any Act amending the same, or any order cases , ^^ decision made in the matter of any baniruptcy, or in any other matter not being an action, shall be the same as the time limited for appeal from an interlocutory order under rule 15 (a). («) The time of appealing from an interlocutory order under rule 15 is twenty-one days ; see rule 15, post, p. 515. An appeal from a winding-up order must be brought within twenty-one days (Be National Funds Assurance Co., i Ch. D. 305). See Be Madras Co., 23 Oh. D. 248. As to bankruptcy appeals, see Fx parte Viney, 4 Ch. D. 794 ; Ex parte Garrard, 5 Ch. D. 61 ; JEx parte Saffery, 5 Ch. D. 365 ; Ex parte Tuclcer, 12 Ch. D. 308 ; Ex i)«?-<«aa??, 16 Ch. D. 501. An appeal from an order made under the Trustee Relief Act [Be Baillie, 4 Ch. D. 785), or under the Vendor and Purchaser Act [Be Blyth and Young, 13 Ch. D. 416), must be brought within twenty-one days. As to extending the time, see Be Jacques, 18 Ch. D. 392 ; 30 W. E. 394 ; JRe Baillie. from inter- locutory order ; winding-up order ; bankruptcy appeals. ' ' Any other matter." !From refusal of ex parte applications. Evidence of questions of fact on appeal. 10. Where an ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Court of Appeal ex parte within four days from the date of such refusal, or within such enlarged time as a judge of the Court below or of the Court of Appeal may allow. 11. "When any question of fact is involved in an appeal, the evidence taken in the Court below bearing on such question shall, subject to any special order, be brought before the Court of Appeal, as follows : (a.) As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed : (b.) As to any evidence given, orally, by the production of a copy of the judge's notes (6), or such other materials as the Court may deem expedient. (J) Where the affidavits were long and had not been printed, the officer of the Court below who had charge of them was ordered to attend with them for the use of the Court of Appeal to save expense [Siclcles v. Morris, 24 W. E. 102 ; and see Crawford v. Sornsea Steam Co., 24 W. E. 422 ; 34 L. T. 923). Judge'snotes. The judge's notes are not entered as evidence [Plimpton v. Malcolmson, W. N. (1876), 89). If they are required an application for them should be made to the Court of Appeal, it is irregular merely to bespeak them from the judge's clerk {Swam V. Barbel; W. N. (1879), 171 ; Dann y. Simmins, W. N. (1879), 178). The application is made to the registrar {StainbanJc v. Beckett, W. N. (1879), 203). The notes of the judge below, supplemented by those of counsel, will generally be sufficient for the purposes of the Court of Appeal, and the costs of shorthand notes of the evidence will not be allowed unless a direction to that effect has been inserted in the -order, for which a special application must be made at the hearing {Earl de la Warr v. Miles, 19 Ch. D. 80 ; Kelly v. ByUa, 13 Ch. D. 682 ; Be Duchess of Westminster Silver Lead Co., 10 Ch. D. 307; Laming v. Gee, 28 "W. E. 217). See, further, as to the costs of shorthand notes, Ord. LXV. r. 27 (9), post, p. 549. RULES OP THE SUPREME COURT, 1883. 515 12. Where evidence has not heen printed in the Court helow, the Ord. LVIII. Court below or a judge thereof, or the Court of Appeal or a judge pj.jj^j. thereof, may order the whole or any part thereof to be printed for the evidence. purpose of the appeal (c). Any party printing evidence for the pur- pose of an appeal without such order shall bear the costs thereof, unless the Court of Appeal or a judge thereof shall otherwise order(£^). (c) C^ies of the judge's notes -were ordered to be printed for use on an appeal {Anon. W. N. (1876), 23). {dj where the vivd voce evidence was very voluminous, and the appeal could not have been properly argued -without referring to all paiia of it, the costs of printing it were allowed [JBigsby v. Dickinson, 4 Ch. D. 24). 13. If, upon the hearing of an appeal, a question arise as to the Notes of ruling or direction of the judge to a jury or assessors, the Court shall Jidge'sruKng •. ji.n-i ■■ °^ direction. iiave regard to vented notes or other evidence, and to such other materials as the Court may deem expedient. 14. No interlocutory order or rule from which there has been no Interlocutory appeal shall operate so as to bar or prejudice the Court of Appeal from o'^'^F not to T_ n • • ,■■ ■; ■■ . , V prejudice giving such, decision upon the appeal as may be just (e). appeal. (e) See as to this rule. White v. Witt, 5 Oh. D. 689. 15. No appeal to the Court of Appeal from any interlocutory order (/), Appeals from or from any order, whether final or interlocutory, in any matter not ™terlocutory being an action, shall, except by special leave of the Court of Appeal, from orders in be brought after the expiration of twenty-one days, and no other Platters not appeal shall, except by such leave, be brought after the expiration of to be brought one year. The said respective periods shall be calcidated, in the case "«"*1^ of an appeal from an order in chambers, from the time when such days ; other order was pronounced, or when the appellant first had notice thereof, appealswithin and in aU other cases, from the time at which the judgment or order is signed, entered, or otherwise perfected, or, in the case of the refusal' of an application, from the date of such refusal (^). Such deposit or other security for the costs to be occasioned by any appeal shaU. be made or given as may be directed under special circumstances by the Court of Appeal (A). (/) As to what orders are final and what interlocutory, see, generally, Seton, Orders : pp. 1607—1610; Mem. 1 Ch. D. 41 ; Standard Co. v. La Grange, 3 C. P. D. 67. The following have been held to be interlocutory ; — Orders on applications to vary what inter- the chief clerk's certificate, though combined with an order on further consideration looutory ; {Cummins v. Serron, 4 Ch. D. 787 ; White v. Witt, 5 Ch. D. 689) ; order against an execution creditor on summons in an administration suit (Pheysey v. Pheysey, 12 Ch. D. 306), though such an order is final in this sense, that fresh evidence cannot be used on the appeal without leave [Norton v. Compton, 27 Ch. D. 392) ; finding in an interpleader issue (M' Andrew v. Barker, 7 Ch. D. 701) ; a decision upon a special case stated by an arbitrator [Collins v. TadAington Vestry, 6 Q. B. D. 368 ; but see, eontra, Shuhrook v. Tufnell, 9 Q. B. D. 621) ; findings of a chancery judge on agreed issues of fact, judgment being then reserved [Krehl v. Bwrrell, 10 Ch. D. 420 ; explained, Lowe v. Lowe, ibid. 432 ; commented on, Totter v. Cotton, 6 Ex. D. 137). The following have been held to be final : —An order overruUng a demurrer what final. [Trowell v. Shenton, 8 Ch. D. 318)~; order on further consideration [Cummins v. Serron, 4 Ch. D. 787) ; and see Be Lhnmet, 13 Ch. D. 484 ; Se Stockton Iron Co., 10 Ch. D. 335. As to the time for appealing from an order not made in an action, see r. 9, and Order not notes thereto, ante, p. 514. made in an L L 2 action. 516- RULES OP THE SITPEEME COURT, 1883. Ord. LVIII. Service of notice of ' ' Eef uaal of an applica- tion." ExtenBion of time for Appeals from chambers. Security for costs, when to te given. Appellant foreigner domiciled abroad. Insolvent appellant. Poverty of appellant. Appeal from ■winding-up order. The notice of appeal must be served within the twenty-one days {Ex parte Saffery, 5 Oh. D. 365). , {g) The dismissal of an action at the trial [International Society v. Moscow Gas Co., 7 Ch. D. 241), and the disallowance of a creditor's claim in an administration suit [Se Glagctt, 20 Ch. D. 134), are "refusals" within this rule. The addition, to the refusal, of an order as to costs does not extend the time for appealing {Swindell v. Birmingham Syndicate, 3 Ch. D. 127 ; 24 W. E. 911 ; Mo'oper V. Smith, 26 Ch. D. 614) ; but where the order contains a declaration so as to bind the rights of the parties, it is not a simple "refusal" which must be appealed from within twenty-one days {Se Clay and Tetley, 16 Ch. D. 3 ; and see Be Michell, 9 Ch. D. 5). Where, of several claims joined in one appKcation, some are allowed and some refused, an appeal from the refusal must be brought within twenty-one days from the date of the refusal {Trail v. Jackson, i Ch. D. 7 ; Serdan v. Birmingham Small Arms Co., 7 Ch. D. 24). The Court may give special leave to extend the time for appealing, and, exercising its judicial discretion, is bound to give that leave whenever ihe interests of justice really require it {Se Manchester Building Society, 24 Ch. D. 488) . For instances of the application of this rule, see International Society v. Moscow Gas Co., 7 Ch. D. 241 ; McAndreio v. Barker, 7 Ch. D. 701 ; Eighton v. Treherne, 48 L. J. Ex. 167 ; Se Blyth and Young, 13 Ch. D. 416 ; Se New Callao, 22 Ch. D. 484 ; Ex parte Ward, 16 Ch. D. 292 ; Se Mansel, 7 Ch. D. 711 ; Craig v. Phillips, 7 Ch. D. 249 ; Collins V. Paddington Vestry, 5 Q. B. D. 368 ; Pheysey^. Pheysey, 12 Ch. D. 305, in which an extension of time was refused ; and Ss Baillie, 4 Ch. D. 785 ; JEx parte Tucker, 12 Ch. D. 308 ; Se Jacques, 18 Ch. D. 392 ; Se Normanton Iron Co., 29 "W. R. 300 ; Taylor's Case, 8 Ch. D. 643 ; Se Padsiow Association, 20 Ch. D. 137 (where the appellant was not a party to the order, and appealed as soon as he knew of it) ; Ex parte Arden, W. N. (1884), 237, in which it was granted. Leave will not be given on an ex'parte application {Se Lawrence, 4 Ch. D. 139). As to applying for leave to appeal after a great lapse of years, see Curtis v. Sheffield, 21 Ch. D. 1. As to appeals from chambers, see Judicature Act, 1873, s. 50, and note thereto, ante, p. 266. (A) Security for costs, was required in the following oases: — Wilson v. Smith, 2 Ch. D. 67; 45 L. J. Ch. 692; 24 "W. R. 421 ; 34 L. T. 471, where the special circumstances were the appellant's poverty, and the great length of the evidence ; Clarke v. Roche, 46 L. J. Ch. 372 ; 25 "W. R. 309 ; 36 L. T. 78, where the appellants had failed to pay costs already incurred; Waddell v. Blockey, 10 Ch. D. 416 ; 27 W. R. 233 ; 40 L. T. 286, yhere the appellant was insolvent, and three appeals had been brought when one woiild have sufficed ; fTilson v. Church, 11 Ch. D. 576 ; 27 W. R. 843, where in a heavy case the appellants were ordered to pay 200/. into Court ; Smith v. White, W. N. (1879), 203, where there had been great delay in prosecuting the action ; Stock v. Blooper' s Telegraph Works, W. N. ,(1876), 230 ; Se Tees Bottle Co., 20 Sol. J. 584. It makes no difference that both parties are appealing {Bence v. Mason, W. N. (1879), 31). ' The fact that the appellants are foreigners not domiciled in England is a " special circumstance," entitling the respondents to security {Grant v. Banque Franco- Egyptienne, 2 C. P. D. 430; 47 L. J. Ch. 41; 26 W. R. 68; 38 L. T. 622; Naersnoss Shipping v. Soyal Mail Co.,'W. N. (1880), 133). So where the appellant ■ is resident out of the jurisdiction {Se Kathleen Mavourneen, W. N. (1878), 215). If an appellant is insolvent and the Court is of opinion that he is vexatiously and unreasonably prosecuting the appeal, he will be ordered to give security ( Zfsil V. Brearley, 3 C. P. D. 206 ; 26 W. R. 371). Where the question at issue had not been previously considered in a Court of Error, the Court of Appeal refused to order an insolvent appellant to give security {Sourke v. White Moss Colliery Co., 1 C. P. D. 656). The fact that the appellant has not complied with a bankruptcy summons wiH entitle the other side to security [Niron v. Sheldon, W. N. (1884), 81 ; 53 L. J. Ch. 624; SOL. T. 425). The mere poverty of the appellant, moreover, is sufficient ground for requiring security {Harlock v. AsKberry, 19 Ch. I). 84 ; 30 W. R. 112) ; and see Gathercole v. Smith, W. N. (1880), 102 ; Morecroft v. Evans, W. N. (1882), 189 ; Se Indian Miming Co., 22 Ch. D. 83. An appellant who is clearly liable to give security ought to offer it without waiting for an application to be made to the Court, and such offer, if reasonable, ought to be accepted. If afterwards an application is made to the Court, the Court in dealing vsdth the costs will consider whose conduct made the application necessary {The Constantine, 4 P. D. 156 ; 27 W. R. 747). Wherever an order absolute for winding-up a company has been made, and that order is appealed from by the company itseK, without anyone else being made responsible for costs, the Court will be ready to entertain an application for security EULES OF THE SUPREME COURT, 1883. 517 {Se JDiamond Fuel Co., 13 Oh. D. 400 ; 28 "W. R. 309 ; 41 L. T. 373 ; Re Photographic Ord LVIII Artists' Association, 23 Oh. D. 370 ; 31,"W. R. 509). 1 An application for security must be made promptly, otherwise it -will be refused Application {Corporation of Saltash v. Goodman, W. N. (IS80), 167 ; 43 L. T. 464). must be made In Grant v. Sanque Franeo-JEgyptimne, 1 C. P. D. 143 ; 24 W. R. 339 ; 34 L. T. promptly. 470, it was held that after the costs incident to an appeal had been actually incurred by the respondent, and after the time had been fixed for hearing the appeal, it was too late to apply for security ; and see Ex parte Sutchins andRomer, W. N. (1879), 99. But special circumstances may justify an application at a very late moment {Me In- dian Mining Co., 22 Oh. D. 83). The applicant must of course make good the grounds on which his application is based, otherwise it will be dismissed (Potter v. Cotton, W. N. (1879), 204). It is not the practice of the Court of Appeal when ordering an appellant to give Order to give security for costs to fix a time within which this must be done {Folini v. Gray, security must Sturla V. Freceia, 11 Ch. D. 741 ; 28 W. R. 81 ; 40 L. T. 861, explaining on this he complied point, iJeJCTj-i/, lOCh.D.372); if the order is not complied with within a " reason- with in a able time" the respondent may move to dismiss the appeal for want of prosecution ; reasonable but what is a " reasonable time" depends on the circumstances of the case {Polini v. time. Gray ; Sturla v. Freceia; Vale v. Oppert, 5 Ch. D. 633 ; 25 W. R. 610). Where an appellant had neglected to comply with the order for nine months, the appeal was dismissed with costs for want of prosecution {Juddr. Green, 4 Ch. D. 784 ; 46 L. J. Ch. 257; 25 "W. R. 293; 35 L. T. 873); and see Fx parU Isaacs, 10 Ch. D. 1 ; 47 L. J. Bkcy. Ill ; 27 W. R. 297 ; 39 L. T. 520 ; Kanitz x- Scarborough, W. N. (1878), 216. If a time is limited and security is not given within that time, the right to appeal is gone {Harris v. Fleming, 30 W. R. 555). Application for security is made by motion on notice, but leave to serve the notice is not necessary {Crrills v. Dillon, 2 Ch. D. 325 ; 45 L. J. Ch. 432: 24 W. R. 481 ; 34 1;. T. 781). The security is to be of such amount and given at such times and in such manner Amount and and form as the Court or judge shall direct (Ord. LXV. r. 6, post, p. 541) ; the form of amount depends on the probable costs of the appeal {Morecroft v. Evans, W. N. security. (1882), 189), 16. An appeal shall not operate as a stay of execution or of pro- Stay of pro- ceedings under the decision appealed from, except so far as the Court oss^™^^- appealed from, or any judge thereof, or the Court of Appeal, may order ; and no intermediate act or proceeding shall be invalidated, except so far as the Court appealed from may direct (i). (i) This rule gives concurrent jurisdiction to the Court below and the Court of Jurisdiction Appeal as to staying proceedings pending an appeal ; and rule 17 does not take of Court of away the jurisdiction of the Court of Appeal, but only requires that it shall not be Appeal and exercised tiU an application has first been made to the Court below ; if the Court Court below, below has refused the application, a renewal of it before the Court of Appeal is not strictly an appeal, and need not be brought within twenty-one days {Cropper v. Smith, 24 Ch. D. 305), and see Att.-Gen. v. Swansea Improvements Co., 9 Ch. D. 46, and Otto -v. Lindford, 18 Ch. D. 394. If the action has been dismissed the Court below would seem to have no further jurisdiction in the matter, and if for any reason it is desired to keep matters in statu quo pending an appeal, application must be made to the Court of Appeal {Wilson v. Church, 11 Ch. D. 576) ; but any pro- ceeding under the order of dismissal, e. g., recovery of costs, may be stayed by the Court below {Otto v. Lindford). The application is by motiofi on notice {Herring v. Clobery, 12 Sim. 410 ; EepubUo Ar.nliV!i+inT,-i= cfPeruyWeguelin,dw.-B..m). b/motion Where an appellant obtains an order to stay payment out of Coiu:t pending an appeal he must undertalce to pay the difference between the income actually pro- duced by the fund and interest at four per cent., and (if the fund has been sold) the expenses of the sale and re-investment {Brewer v. Torke, 20 Ch. D. 669 ; Bradford v. Yowng, 28 Ch. D. 18). The Court will stay proceedings pending an appeal where it is necessary to Stay of pro- prevent the appeal, if successful, from being nugatory ( Wilson v. Church, (No. 2), ceedinga, 12 Ch. D. 454 ; Polini v. Gray, 12 Ch. D. 438 ; Walburn v. Ingilby, 1 My. & K. 79 ; whengranted. Bradford \. Yotmg); or if irreparable mischief might otherwise result {Walfordy. Walford, 3 Ch. 812 ; Barrs v. Fewhes, 1 Eq. 392) ; and see Gibbs v. Daniel, 4 GifE. 41, n. ; Falli v. Universal Assurance, 10 W. R. 327 ; Adair v. Yowng, 11 Ch. D. 136. A plaintiff having obtained an order for production of documents, was restrained from inspecting them, pending an appeal from the order {Kelly v. Mutton, 15 W. R. 916). A shareholder pronoimoed a contributory was allowed to 518 EULES OF THE SUPREME COURT, 1883. Ord. LVIII. When de- fendant need not answer pending appeal as to demurrer. Whenrefused. In case of injunction. Terms im- posed on party appeal- ing. Costs of motion to stay prooeedinge. No stay of execution for costs pending an appeal. pay calls into Court, pending an appeal {Jopp's Case, W. N. (1867), 192) ; and see Colj/er T. Finch, 20Beav. 555 ; Bourne v. Buckton, 35 L. J. Cli. 851 ; Lord v. Colvin, 1 Dr. & Sm. 475 ; Wood v. Farthing, 8 W. R. 426 ; Fortarlington v. Damer, 11 W. R. 869 ; Price v. Salisbury, ibid. 1014 ; Garcias v. Sicardo, 1 Ph. 498 ; Aheraman Iron Works v. Wiekens, 5 Eq. 485, 519. So ■where a demurrer to discovery has been overruled, and the defendant appeals, the Court will stay proceedings to enforce an answer if there has heen no delay, or if the defendant would he prejudiced by answering (Brake t. Drake, 3 Hare, 628 ; Garcias v. Sicardo, 1 Ph. 498 ; Saunders v. Sichardson, 2 W. R. 358). But the application has been refused where the appeal has been considered hope- less (lord V. Colvin, 1 Dr. & Sm. 476), or if the eflfect of staying proceedings would be a reversal of the order ; thus, where an injunction had been granted and a motion for a new trial of issues was being carried by appeal to the House of Lords, the Court refused to dissolve the injunction pending the appeal (Fenn v. Bihhey, 3 Eg. 308). So, where an injunction was .refused the defendant could not be restrained, pending an appeal, [Galloway v. Mayor of London, 4 De Gr. J. & S. 59 ; see Atherton v. British Nation Assurance Society, 5 Ch. 720). And where the defendant had been ordered to execute a conveyance, and applied to suspend such execution, pending an appeal, the application was refused, on the plaintiff consenting tiiat notice of the appeal should be endorsed on the conveyance { Wilson V. West Sartlepool Failway Company, 34 Beav. 414). A defendant ordered to transfer articles of f mfniture to the plaintiff was not allowed to retain them pending an appeal [Harrington v. Harrington, 3 Ch. 664) . And costs have been ordered to be paid into Court notwithstanding an appeal [CoVyer v. CoVyer, 10 W. R. 748 ; Archer v. Hudson, 8 Beav. 321 ; see Burdick v. Garriek, 5 Ch. 453 ; but see Merry V. Nickalls, 8 Ch. 205 ; Cooper v. Cooper, 2 Ch. D. 492) ; and terms have been imposed on the party appealing and desiring to stay proceedings [Taylor v. Midland Failvoay Company, 9 W. R. 154 ; Mcintosh v. Great Western Railway Company, 13 W. R. 1029 ; Monypenny v. Monypenny, 8 W. R. 430). The costs of the motion to stay must, as a general rule, be paid by the applicant, whether successful or not [Merry v. Nickalls, 8 Ch. 205 ; 21 W. R. 305 ; Cooper v. Cooper, 2 Ch. D. 492 ; Morgan v. Elford, 4 Ch. D. 352 ; 25 W. R. 136 ; Atherton v. British Nation Assurance Company, 6 Ch. 720 ; Grant v. Banque Franco-Egyptienne, 3 C. P. D. 202 ; 26 "W. E. 669). But the Court has a discretion [Barl of Shrewsbury V. Trappes, 2De Q. P. & J. 172 ; Burdick v. Garriek, 5 Ch. 453 ; Walford^. Walfoid, 3 Ch. 812 ; 5 Ch. 455, n. (4) ; Adair v. Young, 11 Ch. D. 136). The Court will not stay execution for costs pending an appeal ; the costs must be paid at once on the undertaking of the solicitor who receives them to refund in case the decision is reversed. If the solicitor declines to give the undertaking the costs must he paid into Court [Grant v. Banque Franco-Mgyptienm, 3 C. P. D. 202 ; 26 "W. R. 669 ; Morgan v. Elford, 4 Ch. D. 388 ; 25 W. R. 136 ; Cooper v. Cooper, 2 Ch. D. 492 ; 24 "W. R. 628) ; and see Otto v. Lindford, 18 Ch. D. 394. Applications to be made first to the Court or judge below. Application to be by motion. Allowance of interest on stay of execu- tion. 17. Wherever under these rules an application may be made either to the Court helow or to the Court of Appeal, or to a judge of the Court below or of the Court of Appeal, it shall be made in the first instance to the Court or judge below [j). [j) See note to r. 16. 18. Every application to a judge of the Court of Appeal shall be by motion, and the provisions of Order LII. shall apply thereto. 19. On an appeal from the High Court, interest for such time as execution has been delayed by the appeal shall be allowed unless the Court or a judge otherwise orders, and the taxing officer may compute such interest without any order for that purpose {k). [k) This rule is new. [Ord. LIX. relates to Divisional Courts. Two further rules were added by E. S. C, October, 1884.] KULES OF THE SUPREME COURT, 1883. 519 OEDEE LX. Offiobes. 1. AJl officers who at the time when these rules come into operation Existing are attached to the Chancery Division of the High Court shall remain j-emaL with attached to the said division ; and aU officers who at the time afore- their divi- said are attached to the Queen's Bench Division shall remain attached ^^°^- to the said division ; and all officers who at the time aforesaid are attached to the Probate, Divorce and Admiralty Division shall remain attached to the said division. 2. Officers attached to any division shall foUow the appeals from OfSoers to the same division, and shall perform in the Court of Appeal analogous appeals, duties in reference to such appeals as the registrars and officers of the Court of Chancery usually performed as to rehearings in the Court of Appeal in Chancery, and as the masters and officers of the Courts of Queen's Bench, Common Pleas, and Exchequer respectively performed as to appeals heard by the Court of Exchequer Chamber. 3. The office of Master of the Supreme Court of Judicature shall be Masters of deemed to be substituted for the several offices specified in the first court to be part of the first schedule to the Supreme Court of Judicature (Officers) suhstitnted for 6T)GC1&6q. Act, 1879, and all enactments and documents referring to any of those offioCTs. offices, or to any of the persons holding them, shall, unless the context otherwise requires, be construed and have effect accordingly {I ). (l) See this Act, ante, p. 291. 4. Where, by the practice of the Chancery Division, recognizances Reoogni- are required to be given, such recognizances shall be given to the two gi-yen to two senior chief clerks for the time being of the judge to whom the cause senior chief or matter is assigned ; and when the same are, by any judgment or order, directed to be vacated, the proper officer shall, on due notice thereof, attend one of the said chief clerks, who shall thereupon vacate such recognizances in the usual manner. OEDEE LXI. Centbal Office. 1. The central office shall, for the convenient despatch of business, be ^^f. °.?'? divided into the departments specified in the first column of the foUow- jnto depart- ing scheme, and the business of the office shall be distributed among ments, and the departments in accordance with that scheme, and shall be per- distributed formed by the several officers and clerks in the said office who are now accordingly, charged with the same or similar duties, and by such others as may from time to time be appointed by lawful authority for that purpose. 520 Ord. LXI. RULES OF THE SUPREME COURT, 1883. Scheme. Name of Department. 1. Writ, appearance, and judgment. 2. Summons and order. 3. Filing and record. i. Taxing , , 5. Enrolment 6. Judgments and married 'wo- men's aoknow- ments. 7. Bills of sale 8. Queen's Remem- brancer. 9. Crown Office 10. Associates The sealing and issue of writs of summons for the commence- ment of actions. The entry in the cause book of writs of summons, appear- ances, and judgments. The sealing and issue of notices for seryioe under Ord. XVI. r. 48. The receipt and filing of pleadings and notices delivered on entry of judgment. The transaction of all business heretofore conducted in the Record and Writ Office, except such part thereof as is transacted in the Record Department. The issue of summonses in the Queen's Bench Division, and the drawing up of all orders made either in Court or in chambers in that division. The filing of all affidavits to be filed in the Central Office, and aU depositions to be used in the Chancery Division, and such other documents as may from time to time be directed by the masters to be filed, and the making and examination of office copies of documents filed in the department. The custody of all deeds and documents ordered to be left with the masters. The business heretofore performed in the Report Office under the direction and control of the derks of records and "writs. The taxation of costs in the Queen's Bench Division, except such costs as have heretofore been taxed in the Queen's Remembrancer's Office or the Crown Office. The business heretofore performed in the Enrolment Office. The registry of judgments, execution, &o., and the registry of acknowledgments of deeds by married women. The registry of bills of sale and other duties connected there- with. The business heretofore performed in the Queen's Remem- brancer's Office. The business heretofore performed in the Crown Office. The business heretofore performed in the Associates' Offices. Despatch of business at the central office. 2. It shall be the special duty of one of the masters to he present at, and control the husiness of, the central office, and to give the necessary directions with respect to questions of practice and proce- dure relating to the husiness thereof. The masters shall select five of their number to discharge this duty in turn, according to a rota to be fixed by themselves, and each of such masters according to his turn shall discharge such duty daily for a period of not less than one month at a time. RULES OF THE SUPREME COURT, 1883. 521 [Rule 3 apj)lies only to taxation of costs in the Queen's Bench Division. In the Ord. LXI. Chancery Division costs are taxed hy taxing masters appointed under 6 & 6 Vict. c. 103, B. 4. The taxing masters attend daily at their offices in the Royal Courts, except in vacation, when one master only attends and taxes casts in urgent cases.] 4. The arrangements made under the two last preceding rules shall Arrange- be publicly announced in such manner as the Lord Chief Justice of ^^ounoed? England shall from time to time direct. 5. Every master, and every first and second-class clerk in the filing Authority to and record department, shall, by virtue of his office, have authority to and^affidavits. take oaths and affidavits in the Supreme Court. 6. The official seals to be used in the central office shall be such as Official seals, the Lord Chancellor from time to time directs. 7. All copies, certificates, and other documents appearing to be Sealed copies, sealed with a seal of the central office shall be presumed to be office *°- P^^y be ^ received m copies or certificates or other documents issued from the central office, evidence. and if duly stamped may be received in evidence, and no signature or other formality, except the sealing with a seal of the central office, shall be required for the authentication of any such copy, certificate, or other document. 8. It shall not be necessary to enrol any judgment or order, Enrolment whether dated before or siace the commencement of the Principal Act. ^o'' to^^"^*^' 9. All deeds which by any statute or statutory rule are directed or unnecessary, permitted to be enrolled in any of the Courts whose jurisdiction has Deeds to be been transferred to the High Court of Justice may be enrolled in the ^^olmeS ^ enrolment department of the central office. Department. 10. A scheme under the Eailway Companies Act, 1867, shall be Scheme under enrolled in the enrolment department of the central office. Compames 11. A scheme under the Act in rule 10 mentioned shall not be Act, 1867. enrolled unless notice of the order confirming it has at least once in Order of con- every entire week, reckoned from Sunday morning to Saturday ^ advertised. evening, which elapses between the pronouncing of the order and the expiration of thirty days from the pronouncing thereof, been inserted in such two newspapers as shall have been appointed by the judge for the insertion of advertisements under the order made pursuant to that Act, nor unless the newspapers containing those notices are produced to the proper officer when the scheme is presented for enrolment. 12. All acknowledgments required for the purpose of enrolling any Aoknowledg- deed or other document may be made before the clerk of enrolments ™?^*^ ^'^ ^- ■' . , . rolling deeds, or before a master, as occasion may require (m). &o. (m) This rule is from Cons. Ord. I. r. 40. 13. The records of aU deeds and recognizances enrolled shall be Enrolments- sent by the clerk of enrolments, so long as that office shaU continue, ^^gl'^^iC or by the proper officer of the enrolment department, to the Public PubUc Record Eecord Office, EoUs Yard, within two years from the time of the 0^°^- enrolment thereof (ra). (») This rule is from Cons. Ord. I. r. 41. 522 EULES OF THE SUPKEME COUKT, 1883. Ord. LXI. Time for enrolmeiit. No order on petition, &c., passed until original peti- tion, &o., filed. Date of filing proceedings. 14. No recognizance shall be enrolled after six months from the acknowledgment thereof, except under special circumstances, and by an order made by the Court or a judge upon motion for the enrolment thereof aiter that time (o). (o) This rule is from Cons. Ord. XLII. r. 12. 15. No order made on a petition, and no order to make a submis- sion to arbitration, or an award, an order of the Court, and no judgment or order wherein any written admissions of evidence are entered as read, shall be passed, until the original petition, submission to arbitration, or award, or written admissions of evidence, shall have been filed in the central office, or, where the proceedings are taken in a district registry, in the district registry, and a note thereof made on the judgment or order by the proper officer (jo). (p) This rule is from Cons. Ord. XXIII. x. 23. 16. Upon every pleading or other proceeding which is filed in the central office, the date of filing the same shall be printed or written (y). (?) This rule is from Cons. Ord. I. r. 45. Indexes to 17. Proper indexes or calendars to the files or bundles of aU docu- to^be kept and ^^^^i^-s filed at the central office shall be kept, so that the same may be conveniently referred to when required ; and such indexes or calendars and documents shall, at all times during office hours, be accessible to the public on payment of the usual fee (r). (r) This rule is from Cons. Ord. I. r. 46. to be acces- sible. Entry of time of delivering certificate, with name of cause and date of cer- tificate : of time of delivery of other docu- ments ; such entry to be accessible. Reference to record to be "written or stamped on documents. Dates of judgments, &c. to be entered in cause books. 18. There shall also be entered in proper books kept for the purpose the time when any certificate is delivered at the central office to be filed, with the name of the cause and the date of the certificate; and the like entry shall be made of the time of delivery of every other document filed at the central office ; and such books shall, at aU times during office hours, be accessible to the public on payment of the usual fee (s). («) This rule is from Cons. Ord. I. ±. 47. 19. Every judgment, order, certificate, petition, or document made, presented, or used in any cause or matter, shall be distinguished by having plainly written or stamped on the first page thereof the year; the letter, and the num.ber by which the cause or matter is distinguished in the books kept at the central office (<). (t) This rule is from Cons. Ord. I. r. 48. 20. There shall also be entered in the cause books, the date of every judgment, order, and certificate made in every cause or matter (u). («) This rule is from Cons. Ord. I. r. 49. EULES OP THE SUPREME COUET, 1883. 523 21. The entry of every judgment and order in such, cause books in Ord. LXI. tte Chancery Division, shall contain a reference to the date and folio :^, T' o ,-1 ■ j_ 1 ■!_ T . 1 . , Keierenoes to oi xne registrar s book m which the judgment or order has been dates and entered (v). folios of re- gistrar'sljook. (») This rule is from Cons. Ord. I. r. 60. 22. The registrar of judgments shall not- receive any memorandum Time for of a judgment, execution, lis pendens, order, rule, annuity. Crown delivering debt, or other incumbrance, or any memorandum of satisfaction of judgment, relating to the same, for registration, after the hour of two in the &0- for regis- „p, tratiou. aiternoon. 23. The clerk of enrolments and each of the following registrars, Official namely — searches. (a) The registrar of bills of sale ; (b) The registrar of certificates of acknowledgments of deeds by married women ; (c) The registrar of judgments ; shall, on a request in writing giving sufficient particulars, and on pay- ment of the prescribed fee, cause a search to be made in the registers or indexes under his custody, and issue a certificate of the result of the search. 24. For the purpose of enabling all persons to obtain precise Certificate of information as to the state of any cause or matter, and to take the proceedings .. T 1 ■ -, f „ "^^ cause or means oi preventing improper delay m the progress thereof, the matter to he proper officer shall at the request of any person, whether a party or S^'^^eu. not to the cause or matter inquired after, but on payment of the usual fee, give a certificate specifying therein the dates and general descrip- tion of the several proceedings which have been taken in such cause or matter in the central office (w). (w) This rule is from Cons. Ord. I. r. 53. 25. The masters shaU execute the office of the registrar for the Masters to act purposes of the BiUs of Sale Act, 1878, and the Bills of Sale Act, 1878, ^^ l^^,?" , •'^ ^ T n 1 under Bills of Amendment Act, 1882, and any one of the masters may perform aU or Sale Acts. any of the duties of the registrar. 26. A memorandum of satisfaction may be ordered to be written Entry of satis- upon a registered copy of a bill of sale, on a consent to the satisfaction, f^tion on hill signed by the person entitled to the benefit of the bill of sale, and verified by affidavit, being produced to the registrar, and filed in the central office. 27. Where the consent in the last preceding rule mentioned cannot How effected be obtained, the registrar may, on application by summons, and on '"'^ere no con- hearing the person entitled to the benefit of the bill of sale, or on affidavit of service of the summons on that person, and in either case on proof to the satisfaction of the registrar that the debt (if any) for which the bill of sale was made has been satisfied or discharged, order 524 RULES OF THE SUPREME COURT, 1883. Ord. LXI. Records not to be removed. Deposit to answer fees. Documents, where depo- sited. Filing and transmitting of certificates, petitions, ad- missions of evidence, submissions to arbitration, and awards made orders of Court. a memorandum of satisfaction to be written upon a registered copy thereof. 28. No affidavit or record of the Court shall be taken out of the central office without the order of a judge or master, and no subpoena for the production of any such document shall be issued (a;). {x) Cf . Cons. Ord. I. r. 42. 29. Any officer of the central office, being required to attend with any record or document at any assizes or at any Court or place out of the Eoyal Courts of Justice, shall be entitled to require that the solicitor or party desiring his attendance shall deposit with him a sufficient sum of money to answer his just fees, charges, and expenses in respect of such attendance, and undertake to pay any further just fees, charges, and expenses which may not be fully answered by such deposit (jf). (y) This rule is from Cons. Ord. I. x. 43. 30. "Wiere any deeds or other documents are ordered to be left or deposited, whether for safe custody or for the purpose of any inquiry in chambers, or otherwise, the same shall be left or deposited in the central office, and shall be subject to such directions as may be given for the production thereof (z). (z) This rule is from Cons. Ord. XLII. r. 3. 31. All certificates of the chief clerk of a judge and all petitions and written admissions of evidence whereon any order is founded, and all submissions to arbitration made orders of the Court, shall be trans- mitted to and left at the central office, to be there filed or preserved. And all office copies thereof, or of any part thereof that may be required, shall be ready to be delivered to the party requiring the same within forty-eight hours after the same shall have been be- spoken (a). (a) This rule is from Cons. Ord. I. i-. 44. Forms. 32. The forms contained in the Appendices shall be used in or for the purposes of the central office, with such variations as circumstances may require (i). (J) For these forms, see infra. Power to pre- 33. The masters may from time to time prescribe the use in or for scnbe orms. ^-^^^ purpose of the central office of such modified or additional forms as may be deemed expedient (c). (c) The Practice Rules drawn up by the masters, so far as they relate to the Chancery Division, are as follows : — EITLES OF THE SXJPEEME COURT, 1883. 525 Centeai Oitice. OEFICE RULES SETTLED BY THE PRACTICE MASTERS, 1880, 1881, 1882. DOOTJMENIS TO BE FILKD IN THE WbIT AND APPBAKANOE AND SUMMONS AOT) OrEEE Depabtments. Origmatmg summonses issued from chancery chambers. Petitions of right. Affidavits of service. Lower scale certificates (chancery) . Schemes of arrangement under Railway Abandonment Act. Pleadings left on entering judgment (Ord. XLI. r. 1). Pleadings and other documents filed under Ord. XIX. r. 6, in default of appearance. Writs and returns to writs, orders, &c. All documents required by rules or orders of Court to he filed, such as warrants of attorney, and cognovits on signing judgments (rule 25, of Hilary, 1853), orders for assessment of damages and masters findings thereon (rule 171, of Hilary, 1853), also satisfaction pieces and orders to satisfy, strike out, or amend any judgment or proceeding, or directing any act to be done in the office (except Chancery Orders and Orders of Court in Qugfen's Bench Division). [A copy of the order marked that the original was produced may be taken at the discretion of the officer in cases in which the original is required to be retained by the parties.] All pleadings to be entered in the cause books are to be opened and stamped on the day of fiUng, with the date seal at the top of the front page, and returned to the general filing department on Monday morning in each week. Copies writs filed. Prseoipes for writs of execution. Praecipes for subpoenas and miscellaneous writs. Appearances. Lower scale certificates. Certificate of costs. All these should be sent to the general filing department when more than a year old. Orders of commitment and returns thereto may be filed and indexed in the writ, &c. department in the same way as (and with) writs of execution. Cattse Book, Distinctive Mabks, and Indexes. Actions and matters in the title of which a limited company is first must be indexed under the first letter of the first word or initial. Courtesy titles of eldest sons of peers are not to govern the distinctive mark which is to follow the surname, viz., "Campbell" and not "Marquis of Lome." In cases, such as mayor and corporation of, &c., the initial letter of the city or borough should govern the distinctive mark. Owners of ships by name of ship. Overseers of parishes by name of parish. Names in which "de" occurs as part oi the surname, or is preceded only by christian names, should be indexed under " D." Foreign companies should be indexed under the initial letter of the first word in their name, «.?., Banco de Lima tmder "B," Society d' Acclimatisation, "S." Foreign titles should be indexed under the initial letter of the proper or local name in the title, e.y., Comte de Paris under "P," Due de Montebello under "M." The christian and surnames of all parties to an action should be entered in full in the cause book. Parties are not to be allowed to see the cause book unless by express leave obtained from a master or an order by a judge. AH searches in the cause book for write of summons or otherwise are to be made by the clerks in the central office, and the result communicated to the party applying. "When a certificate is given, and no inspection of a praecipe is required, only one fee of Is. is to be taken (or is. if higher scale). A separate index is to be kept of writs in administration actions and of admi- nistration summonses, which index the pubUo may search without fee. Separate books are to be kept for entering returns to writs of execution, index to lower scale certificates in chancery matters not actions, and return books, and debt attachment book. Ord. LXI. 626 RULES OF THE SUPREME COURT, 1883. Ord. LXI. No other books to be kept for entries except the cause books (and desk book for ~^- facilitating reference) . The judgment books may be kept in the cause book room ■with the cause books, or in a separate room. "Weits of Sttmhons, Appbaeanoeb, aud Ambndments. Copies of writs of summons should be signed with the name of the solicitor or solicitor's clerk suing them out as under : — 0. D. and Co. or A. B. for C. D. and Co. The stamp is to be on the copy writ filed. In the Chancery Division an order of course to amend a writ of summons as the plaintifl may be advised will not justify an alteration that strikes out the name of any plaintiff or defendant, or makes a person out of the jurisdiction a party. In all the divisions an amendment of a writ of summons may be made by leave of a master (on payment of fee) before service. A plaintiff can be struck out only by special leave given in the order to amend ; a defendant, by special leave, or on the written statement (to be filed) of the plaintiff's solicitors that a notice of discon- tinuance under Ord. XXIII. has been duly given. In Chancery actions an amendment to a writ of summons pursuant to an order of Court or judge, may be made either on an undertaking to get the order drawn up, or on a separate memorandimi or certificate being left for filing, signed or initialed by the judge or registrar, showing the order to have been made. In an information where there is no relator, the Attorney- General's signature on the writ is not required ; but where there is a relator (whether a person or body corporate) the original writ (not the copy filed) must be signed by the Attorney- General, and if any amendment be made it must be authorized by his signature on the original writ or draft. In entering appearances a note should be made in the cause books " statement of claim required " or " statement of claim not required, ' ' and in cases where the action is for recovery of land, and the defence is limited, a further note to that effect should be added. If no time is specified in an order to amend, the amendment must be made within 14 days. If a solicitor has caused an appearance to be entered by mistake, the mistake may be rectified with the consent in writing of the solicitor for the plaintiffs, and on the fiat (on the production of such consent) of a practice master to be given on a prseoipe with a 2s. 6d. (search) stamp. A defendant in person may change his address for service (without order to change address) by leave of master, but must forthwith give notice to the other side. In the case of infants the appearance is accepted without any authority or order ; an order being obtained by the defendant's solicitor after the appearance has been entered. In the case of a married woman, an order to defend separately must be obtained before appearance is entered. If a writ of summons has been lost the filed copy may, for the purpose of amend- ment, or for any other purpose, be treated as a duplicate, but only by leave of a practice master, and on the party giving an undertaking to produce the original at the central office when found. Writs of summons issued before the Judicature Acts came into force may be renewed without an order. A female plaintiff must be described as "spinster," "married woman," or " widow," and if an infant, as an infant. Where an infant or married woman is plaintiff the authority of the next friend (duly attested) must be filed before the writ of summons can be issued. Substituted Seevioe. Appidavit op Seevice. Unless the order shall otherwise direct, a copy of the order and of the writ shall be deemed to have been served on the day following the day on which a prepaid letter containing such copy shall have been posted. Subpoenas. Subpoenas remain in force only till the end of the sitting or assize for which they were issued. A new writ must afterwards be issued or t£e former writ may be (at the option of the parties) altered as to date and sitting, or assize, and re-issued as a new writ. The date of return in the writ and preecipe may, before service, be amended without the direction of a master, and without fee, provided the amended date be within the sitting or assize for which the subpoena issued. RULES OF THE SUPREME COURT, 1883. 527 A subpoena in an interpleader issue should be headed in tiie title of the original Ord. LXl. action, and in the title of the interpleader issue, and should be applied for in, and issued out of, the room in which the writ of sionunons in the original action was issued. Removal bt Appeahaitoe to London of Aotions ooiqienoed m Dibteioi Reqibteies. A fresh London distinctive mark to be given. No separate district registry cause book to be kept. No letter need be sent to the district registrar. "Writs of summons issued out of a district registry cannot be amended by order or fiat of master unless the action has been removed to London by appearance or otherwise. No writ issued out of a district registry can be amended in the central office unless the duplicate filed in the district registry has been previously received in the central ofBce. If it becomes necessary to send to London (for amendment or otherwise) the copy writ filed in the district registry, authority may be given to send the copy writ to the central office by sealing a duplicate of the praecipe for appearance, which shall be transmitted to the district registrar by the solicitors concerned. DlSTKCTQAS. When the settlement comprises more than one sum, and the sums are in the shares or securities of different companies, a separate affidavit and notice should be made for each company, and the affidavit should be that the funds comprise ' ' amongst other's " the sum of, &c. [specifying the sum in the books of the one company], and a stamp of 10s. will be required for each separate notice. If there are more sums than one, but aU in.the books of the Bank of England, or in the books of any one company, one affidavit and notice will be sufficient for all the sums. In actions not specifically assigned to the Chancery Division by the Judicature Act, 1873, s. 31 (i. e., so called common law actions brought in the Chancery Division), no certificate of lower scale shall be given out tiU. after appearance. In the cause books such aotions shaU be distinguished by the letters L.S. When deposited documents, or documents on the file, are ordered to be delivered to a solicitor, on his undertaking to return them, he must sign a receipt and under- taking to return (which may be endorsed on the order), and leave the order and endorsement at the central office to be returned to him on his bringing back the documents. The signature of the solicitor must be witnessed by his clerk, or by someone known to the officer delivering out the documents. Pleadings ahd Documents filed in Default. None of these documents wOl be placed in the bundles containing the writs of summons and pleadings filed on entering judgment, but will be made up into two sets of separate bundles. Ihe first containing all statements of claim filed in default. The second containing summonses, warrants to tax, notices, and miscellaneous documents. AU these documents must have the date of filing and the name of the defendant against whom they were filed written on them, and be entered in the cause books under the head of pleadings, such entry to show the date of filing, nature of docu- ment, and name of defendant against whom they are filed. None of these documents will (for the present) be delivered out without an order, but any defendant against whom documents have been filed may, after appearance, inspect the same wittiout fee. As to FTLINa OENEBALLY. In the Chancery Division, judgments, orders, notices of motion for attachment, ai;id other documents requiring personal service, cannot be filed in def axdt of appear- ance without an order or leave of a master, and no pleadings or other documents can be filed under Ord. XIX. r. 6, unless an affidavit of service under Ord. XIII. rr. 2 ajid 9, or an office copy thereof, be first produced to the officer. Obdees and Judgments. When parties have not drawn up their orders on the day of the hearing of the summons, the solicitor shall, before having his order issued, take it to the filing office, and having endorsed on the back the words " the affidavits referred to within are on the file," the seal will be affixed to certify that the affidavits are filed. Such certificate will have the same effect as producing the affidavits on drawing the order. 628 RULES OF THE SUPREME COURT, 1883. Ord. LXI. As to Cdnaty Court certificate of result of trial, no fee to be ftharge'd for searcll, !! Judgment may be signed on a certificate of "no affidavit filed in answer to inter- rogatories," or on a certificate of non-payment of money iuto Court without afSdayit. On entering judgments under Ord. XLI. r. 1, in actions in the Chancery Division, when drawn up by the chancery registrars, the engrossment of the judgment together with the pleadings to be filed shall be brought to the writ appearance and judgment department, and the officer receiving the same shall make a note in the margin of the engrossment that the pleadings have been filed, and shall authenticate such note with the small seal of the office, and return the engrossment to the solicitor. The date of the judgment as shown by the engrossment of the order and the date of leaving the pleadings shall be entered in the cause book. The solicitor on leaving the pleadings must endorse thereon and sign a certificate in the words or to the effect following : — "I certify that these are all the pleadings required to be left for filing." When judgment is signed under Ord. XLI. rr. 4 and 5, on any order, certificate, or other document, such document shall be filed. Original stamped judgment to be filed and office copy to be delivered out at 6d. a. folio. The judgment need not be signed by the solicitor entering it. If judgment removed from Lord Mayor's Court the fixed cost of removal to be one guinea in all cases. An allocatur for costs is to be placed on a certificate in the form settled. Judgments are to be numbered consecutively in eaoh alphabetical division in the right-hand comer, and the number entered in the cause book. In cases where the plaintiff is entitled to a final judgment as to part oi his claim, and to an interlocutory judgment as to the remainder, one judgment only is neces- sary, final as to part and interlocutory as to the rest, and one fee paid. In the case of cross judgments in the same action where aftCT a trial there is a direction for judgment for plaintiff against some of the defendants, and for some of the defendants against the plaintiff, and also for some of the defendants against the others, the whole direction may be embodied in one judgment, and tha different parties may take office copies for use. Date of filing of pleadings filed on entering judgment and of certificates of costs are to be entered in cause books and on the documents. As TO Costs on Juixjments toe Depatilt of Appeaeanoe. £ s. d. In town cases 3 14 In country and agency cases and cases in which service effected beyond five miles from General Post Office, St. Martin's-le-Grand 4 6 And 6s. in addition for each service beyond one defendant. The above allowances include all mileage. As to the Costs os eemovino JiroaMENTs peom Ihfbeioe Cottets eoe Pubposeb of Execution. The order should direct that the party removing the judgment have his costs of and relatiifg to the removal (to be taxed) . Note. — ^AU questions of practice, sufficiency of affidavits, &o., are to be referred to a practice master, and not to any other master. ADDITIONAL OFFICE RULES SETTLED BY THE PRACTICE MASTERS, Maeoh, 1884. As TO BioNiNo Copt Weit. (Ord. V. r. 12.) The signature to the statement of claim indorsed on the writ is not to be taken as a sufficient compliance with the rule requiring the writ to be signed. Lost Weit. (Ord. VIII. r. 3, Fee, &c.) When a copy writ is sealed in lieu of the original, under the above rule, no fee is to be taken. A note should be made on the face of the copy near the seal, showing that it is so sealed under the above rule pursuant to order, setting out the name of the judge and date of the order, and an entry made in the cause book of the sealing and name of the judge, date of order, and date and time of filing. BULES OF THE SUPREME COURT, 1883. 529 OEiaiNAinfa STrantONSES. Ord. LXI. Originatiag summonses iu the Chauoery Division are to be issued in the same manner as Traits of summons. The stamp denoting the fee is to be put on the copy iiled, and the original sealed and delivered to the party issuing, but no other dupU- oates or copies for service are to be sealed. All other originating summonses are to be issued in the summons and order department in the same manner as ordinary summonses for chambers. ASSIONING JVDHB. The assignment to a particular judge of every cause or matter commenced in the Chancery Division (otherwise than by petition) shall be made in room No. 65, before the issue of the -writ or summons or service of the notice of motion. APPEAEAU-OE APIEE JUDOMENT. ■Wben a memorandum of appearance by a defendant is handed in without a previous search for judgment (for which search the proper fee should be taken) and judgment has been signed, the appearance must not be entered in the usual way, but the stamp on the memorandum of appearance must be retained as a used stamp, and not treated as fit for aUowauce. The duplicate is not to be sealed, but the party who has handed in the memorandum may be informed without further pay- ment, that judgment has been signed. A note should, in such cases, be made in the cause book that a memorandum of appearance was brought in after judgment signed, and the fee should be accounted for amongst the appearance fees. Office Copies op Judouents. An ofGce copy of a judgment may be obtained in the same manner as an office copy of any other document on a fiat of a judge or master. On an application on behalf of a judgment creditor for an office copy of a judg- ment for bankruptcy proceedings, no fee for the search to be taken or required. When application is made to produce a judgment for the purpose of setting it aside or otherwise a search fee of 2«. Gd. is payable. Jt3D(hients, Coubt Fees, 1884. On entering judgments on certificates of registrars of County Courts and on returns to -writs of inquiry the fee of 10». is to be taken. (Court Fees, Nos. 57 and 58.) Depositions, &c. Fimnq Fee. No copy of any deposition or other document requiring a filing fee shall be issued or examined until such filing fee shall have been paid. Ftt.tnq DooiraiEifTS. Date and Timb op FtUNO. Every document left for filing must be marked with the year, day, hour, and minute when so left, and if filed in writ and appearance department, an entry made thereof in the cause book, or if there is no cause or matter there, then in an index book. FiLma Mastees Ceetifioates. Ord. XLI. r. 8 (No. 576.) This rule is to apply to certificates or awards made on references under the Common Law Procedure Act, 1854, -which must be filed. (A 2«. &d. fee is payable on filing these as awards.) Oedbes bt Consent. An order is not to be drawn up upon a consent, signed by a party or his solicitor, ■written upon a summons, unless it has beea initialed by a judge or master. As TO Satisfaction of Bills of Sale. If the attesting witness and deponent is a solicitor, and described as such, the entry of the satisfaction will be directed by the regfistrar (the papers being other- ■wise correct) as of course ; but under special circumstances the registrar may accept any other deponent if satisfied that he is a proper person to attest and verify the signature and consent. As TO COONOVITS AND WaEEANTS OF AtTOENET. The filing for the purpose of signing judgment shall be either by registering the original or by filing the original (before signing judgment) in the bills of sale department. A certificate of the filing shall in either case be given by that depart- ment, which certificate shall show the parties to the cognovit or warrant of attorney and the amount for which judgment is to be signed. Judgment may be signed M. MM 530 KULES OF THE SUPREME COURT, 1883. Ord. LXI. Order not subpoena (see 3&4"WiIl.rV. 0. 42). Subpoena ad test, or duces tecum to be issued as of course. Subpoena on a note from a judge. Subpcena ad test, or duces tecum as of course. Ord. XXXVI. rr. 49, 57. Ord. LXXII. r. 2. on this certificate being produced and filed in the writ, appearance, and judgment department. As TO "Weits of Eleoit. From 1st January, 1884, the new form (which under the Bankruptcy Act, 1883, s. 146, does not extend to goods) is only to be used. And the amount indorsed to be levied for costs of the execution, including warrant, but exclusive of inquisition and expenses of execution, is not to exceed 21., without the express leave of a master. As TO SUEP(ENAS AND ObDEES FOB THE ATTENDANCE OP "WITNESSES. For attendance before an arbitrator under an agreement or order by consent referring action or matter in difflerence to arbitration. Or before a master upon a reference under the Common Law Procedure Act, 1854. Or for attendance of any person in any cause or matter for producing documents at any stage of the proceedings imder Ord. XXXVII. r. 7, of Rules of Supreme Court, 1883. For attendance before an officer of the Court or other person appointed to take an examination for the purpose of using witness' evidence upon any proceeding" in a cause or matter, or for cross-examination on affidavit already made, Ord. XXXVII. r. 20. On proceedings in chambers, Ord. XXXVII. r. 28. For attendance upon trial before a judge or before an official or special referee when trial ordered to take place before a referee. Or for attendance before an officer of the Court to whom it has been referred to ascertain the amount for which final judgment is to be entered under Ord. XXXVT. X. 57. Or on execution of a writ of inquiry. For witnesses residing out of the jurisdiction of the Court hut within the United Kingdom an order of Court, if sitting, or of a judge, if Court not sitting, for a subpoena to issue. The subpoena to have a note at the foot showing that it is issued by the special leave of Court or judge. (17 & 18 Vict. o. 34, ss. 1, 2.) In all other cases not specially provided for by Acts of Parliament or Rules of Court the old practice to continue. The subpoena is to be marked legibly in the margin near the seal, with the number of witnesses for which it is issued, c. g., "for ijree witnesses only." The fee of 5s. is payable for not exceeding three witnesses, and the like fee for every additional three and for any less number beyond. As TO Costs of JuDajtENis et DBFAinyr. If for a sum exceeding 50/. on specially indorsed Writs issued on or after 25th January, 1884 ; — Country and agency cases, and in cases where service effected more £ «. d. than five miles from General Post Office, St. Martin's-le-Grand.. 6 6 Town oases 4 14 And in addition for each extra service 6 The above allowances to include all mileage. If writ indorsed for a liquidated claim exceeding 60/., hut not specially, and in all cases in which sum recovered amounts to 20?. and upwards, but does not exceed 50/., on writs issued on or after 25th January, 1884 : — Country and agency cases, or where service effected more than five miles from General Post Office, St. Martin's-le-Grand 4 12 Town cases 4 And in addition for each extra service 6 The above allowances to include all mileage. In cases under 20/. no costs unless a judge's order for costs. In oases where the writ was issued prior to 25th January, 1884, the old scale of allowances to be made, viz. : — On 'Weits issued peioe to 24ih Ootobbe, 1883. Country, &o 4 6 Town 3 14 And in addition for each extra service 6 On "Weits issited on ob aftee 24th Ootobee, 1883, down to and inclusive of 24th Jantjabt, 1884, above 60/. Country, &c. special indorsement (Statement of Claim) ,. 5 Town ,, ,, 4 8 And in addition for each extra service ,, 6 EULES OF THE SUPREME COURT, 1883. 531 And nf Cases not bxceedino 50^., ob whebb the Weit is iniioesed Ord. LXI. POB A LiQTIIDATED CliAIH BOT NOT SPECIALLY. £ «. ^^'^ ^* ^ improper that his solicitor should be his surety [Fanton v. sureties. Zabertouche, 1 Ph. 265 ; 7 Jm\ 589) ; but in Flestow v. Johnson, 1 Sm. & G. App. xx., RULES OF THE SUPREME COURT, 1883. 543 2 W. R. 3, the bond of tte British Guarantee Association, incorporated by Act of Ord. LXV. Parliament, was held sufficient security. And the bond of an officer in the army ■whose regiment is at the time quartered in Scotland is sufficient {Miller v. Sales, 17 Eq. 430; 43 L. J. Ch. 436; 30 L. T. 10; 22 W. R. 625). If the surety dies or becomes bankrupt, the plaintiff must find fresh security {Lautour v. Solcombe, 1 Ph. 263 ; Veitch v. Irving, 11 Sim. 122) ; but the defendant must not delay his applica- tion for that purpose, otherwise proceedings will not be stayed in the mean time {Zautoiir v. Solcombe). 8. In causes and matters commenced after these rules come into Scale of costs : operation, solicitors shaU be entitled to charge and be allowed the fees set forth in the column headed " lower scale " in Appendix N. in aU lower scale, causes and matters, and no higher fees shall be allowed in any case, except such as are by this order otherwise provided for ; and in causes and matters pending at the tim.e when these rules come into operation, to which the higher scale of costs previously in force was applicable, the same scale shaU continue to be applied (r). (r) See Appendix N., infra. 9. The fees set forth in the column headed "higher scale" in Higher scale. Appendix N. may be allowed, either generally in any cause or matter, or as to the costs of any particular application made, or business done, in any cause or matter, if, on special grounds arising out of the nature and importance, or the difficulty or urgency of the case, the Court or a judge shall, at the trial or hearing, or further consideration of the cause or matter, or at the hearing of any application therein, whether the cause or matter shall or shall not be brought to trial or hearing or to further consideration (as the case may be), so order («) ; or if the taxing officer, under directions given to him for that purpose by the Court or a judge, shaU think that such allowance ought to be so made upon such special grounds as aforesaid. («) Eor Appendix N., see infra. See Be Chaytor, 25 Ch. D. 655 ; and Solland t. Worley, W. N. (1884), 90, in which the costs were ordered to be taxed on the higher scale. In Hudson v. Osgerby, W. N. (1884), 83 ; 32 W. R. 566 ; and Re Spettigue, W. N. (1884), 6 ; 32 W. R. 385, applications for this purpose were refused. The rule does not apply to actions pending at the time the present rules came into opera- tion {Edgington v. Fitzmawice, 32 "W. R. 848). 10. Upon any reference to a taxing officer to tax a bill of costs of a Higher scale solicitor for the purpose of ascertaining the amount due to such solicitor ^5^ % in respect thereof from the person to be charged therewith, if such bill special shall include charges for business done in any cause or matter, the S^o^^'^s- taxing officer may allow the fees set forth in the column headed " higher scale " in Appendix N. in respect of such cause or matter, or in respect of any particular application made or business done therein, if on such special grounds, as are in the last preceding rule mentioned, he shall think that such allowance ought to be so made. 11. If in any case it shall appear to the Court or a judge that costs Costs occa- have been improperly or without any reasonable cause incurred, or misconduct that by reason of any undue delay in proceeding under any judgment of solicitor. or order, or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person 5i4 EULES OF THE SUPREME COTTRT, 1883. Ord. LXV. Plaintiff re- covering only 501. in con- tract, to be allowed County Court costs. incurring the same, the Court or judge may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client, and also (if the circumstances of the case shall require) why the solicitor should not repay to his client any costs which the client may hare been ordered to pay to any other person, and thereupon may make such order as the justice of the case may require. The Court or judge may, if they or he think fit, refer the matter to a taxing oflB.cer for inquiry and report ; and direct the solicitor in the first place to show cause before such taxing officer, and may also, if they or he think fit, direct or authorise the official solicitor of the Supreme Court to attend and take part in such inquiry. Such notice (if any) of the proceedings or order shall be given to the client in such manner as the Court or judge may direct. Any costs of the official solicitor shall be paid by such parties, or out of such funds as the Court or a judge may direct ; or, if not otherwise paid, may be paid out of such moneys (if any) as may be provided by Parliament. 12. In actions founded on contract, in which the plaintiff recovers, by judgment or otherwise, a sum (exclusive of costs) not exceeding 50Z., he shall be entitled to no more costs than he would have been entitled to, had he brought his action in a County Court, unless the Court or a judge otherwise orders {t). {t) See as to this rule, Bye v. Kirty, W. N. (1883), 195 ; ZangUy^. Sugden, ibid. 198 ; CaVvert v. Davidson, W. N. (1884), 18 ; Mmdehsohn v. Soppe, ibid. 31 ; Copley V. Jackson, ibid. 94; Sayieoodv. Cross, 14 Q. B. D. 53. Cost of guar- 13. Where the Court or a judge appoints one of the solicitors of dian ad litem ^jjg Court to be guardian ad litem of an infant or person of unsound is guardian, mind, the Court or judge may direct that the costs to be incurred in the performance of the duties of such office shall be borne and paid either by the parties or some one or more of the parties to the cause or matter in which such appointment is made, or out of any fund in Court in which such infant or person of unsound mind may be interested, and may give directions for the repayment or allowance of such costs as the justice and circumstances of the case may require (m). (m) This rule is taken from Cons. Ord. XL. r. 4. Costa of soli- where the official solicitor is appointed guardian to a defendant, who is an infant citor euardian °^ °^ unsound mind, at the instance of the plaintiEE, it is the settled rule that the ad litem plaintiff shall pay his costs in the first instance, and add them to his own {Fraser v. Thompson, 4 De Gr. & J. 659 ; Newbury v. Marten, 16 Jur. 166), even in a foreclosure suit, where the security is insufficient {Harris v. Samlyn, 3 De Gr. & S. 470 ; see Mx parte Davies, 16 Jur. 882). But in a partition suit, the guardian's costs were ulti- mately charged on the infant's share [Robinson v. Aston, 9 Jur. 224 ; and see Sobey V. Whitewood, there cited) . The Court had no jurisdiotion to order the costs of a defendant, to whom the solicitor to the Suitors' Fee Fund was appointed guardian, to be paid out of the suitors' fund [Fraser v. Thompson, 4 De Q-. & J. 652). Costs where Where a person of unsound mind, to whom a guardian ad litem has been appointed, lunatic recovers before the hearing, he must pay the costs of the guardian before obtaining recovers. an order to substitute his own solicitor, but may add such costs to his own costs of suit [Frampton v. Webb, 11 W. R. 1018). RULES OP THE SUPREME COURT, 1883. 545 The guardian ad litem is not liable for costs except in case of gross misconduct Ord. LXV. {Morgan v. Morgan, 11 Jur. N. S. 233). 14. A set-off for damages or costs between parties may be allowed SoUoitor'slien notwithstanding the solicitor's lien for costs in the particular cause or fere -vnth matter in which the set-off is sought. set-off. 15. Costs may be taxed on an award, notwithstanding the time for Taction of setting aside the award has not elapsed. award. 16. One day's notice of taxing costs, together with a copy of the Notice of bm of costs and affidavit of increase (if any) («), shaU be given by the **^S '=°^*^- solicitor of the party whose costs are to be taxed to the other party or his solicitor, in all cases where a notice to tax is necessary. (»J An affidavit of increase is not generally required on taxations in the Chancery Division {Smith v. Day, 16 Ch. D. 726). 17. Notice of taxing costs shall not be necessary in any case where Where de- the defendant has not appeared in person, or by his solicitor or ^ot appeared. guardian. 18. Every reference for the taxation of costs in the Chancery Order of Division shall be made to the taxing master in rotation ; provided ^^ ^'^^'^''s- that in any case where there shall have been any former taxation in the same cause or matter, or in any summons under Order LV., rules 3 or 4, relating to the same , estate or trust, the reference shall be to the taxing master before whom such former taxation took place {w). (w) This rule is taken from Cons. Ord. XL. r. 2. 19. The taxing masters shall be respectively assistant to each other, Taxing and in the discharge of their duties ; and, for the better despatch of ^^t each the business of their respective offices, any taxing master may tax or other, assist in the taxation of a bill of costs which has been referred to any other taxing master for taxation, and for ascertaining what is due in respect of such costs, and in such case shall certify accordingly {x). {x) This Tvle is from Cons. Ord. XL. r. 3. As to the mode of carrying in objections when part of the biU has been taxed by a Chancery taxing master and part by a common law master, see Ross v. Aahwin, W. N. (1884), 86. 20. Where, upon the taxation of any bill of costs in the Chancery Books, &c. to Division, it appears to the taxing master that for the purpose of duly t^^]^,^™.^ taxing the same it is necessary to inspect any books, papers, or docu- chief clerk to ments, relating to the cause or matter in the chambers of any judge, the taxing master shall be at liberty to request the chief clerk of such judge to cause the same to be transmitted to the office of the taxing master, and also to request such chief clerk to certify any proceedings in the said chambers which may be comprised in the biU of costs under taxation, and in such cases the chief clerk, when and so soon, and at and for such times, as the due transaction of the business at the said chambers will permit, shall direct such books, papers, and documents, to be transmitted to the office of the taxing master for his M. NBT ■e s the taxing master. 646 EULES OP THE SUPREME COTXRT, 1883. Ord. LXV. use during the taxation, and shall certify the proceedings -vrhieh have taken place in the said chambers according to the request of the taxing master ; and after the costs in respect of which such request of the taxing master was made shall have been certified, the taxing master shall cause the same books, papers, and documents, which have been so transmitted to his office, if then remaining there, to be returned to the chambers of the judge (y). {]/) This is taken from Cons. Ord. XL. r. 26. sion, &c. Memorandum 21. "When any book, paper, or document, shall be transmitted from sion^^"™' *^® chambers of a judge to the office of a taxing master, a memo- randum of such transmission shall be made and signed by the taxing master or the clerk of the taxing master, at whose request, such book, paper, or document, may be transmitted, and shall be delivered to the chief clerk of such judge ; and when any such book, paper, or document, shall be returned from the office of the taxing master to the judge's chambers, a memorandum of such return shall be made and signed by such chief clerk, or by one of his clerks, and shall be delivered to the taxing master (a). (a) This is from Cons. Ord. XL. r. 27. Costs of drafts 22. Where in pursuance of any direction by the Court or a judge in Bii te '^ chambers drafts are settled by any of the conveyancing counsel of sel before or the Court, the expense of procuring such drafts to be previously or ^m d^^ ^^^ subsequently settled by other counsel, on behalf of the same parties conveyancing on whose behalf such drafts are settled by the conveyancing counsel coimsel of of tj^e Court, shall not be allowed on taxation as between party and party, or as between solicitor and client, unless the Court or a judge shall otherwise direct (a). (a) This rule is from Cons. Ord. XL. r. 30. Gross sum in 23. Upon interlocutory applications where the Court or a judge costs" ^^ shall think fit to award costs to any party, the Court or judge may by the order direct payment of a sum in gross in lieu of taxed costs, and direct by and to whom such sum in gross shall be paid (i). (*) This rule is from Cons. Ord. XL. r. 37. In London # BUckwall Ry. v. Lime- house Board of Works, 26 L. J. Ch. p. 170, V.-C. Wood is reported to have said that the Court would not act on this rule unless the parties were poor and anxious to put an end to the matter ; but see Yearsley v. TearsUy, 19 Beav. 1 ; Dakins v. Garratt, i. Jur. N. S. 579. The rule is frequently acted on in chambers (Seton, 126). Pees on pro- 24. The fees payable on proceedings before a judge in chambers oeedings under the Charitable Trusts Act, 1853, s. 28, shall be the same as the under Cha- „ -i ritable Trusts lees payable according to the rules relating to costs in respect of ^M^ers • °*^®^ proceedings commencing by summons, and shall also in all other respects be regtdated by these rules (c). (c) This rule is from Cons. Ord. 2LI. r. 11. As to this Act, see mU, p. 94. RULES OP THE SUPREME COURT, 1883. 547 25. Where the judge directs tliat any matter commenced by summons Ord. LXV. under the Act in the last preceding rule mentioned shall he heard in in Court. ' open Court, the same fees shall he payable and the same costs shall be allowed as would have been payable in respect of any other matter so heard {d). (d) This is from Cons. Ord. XLI. r. 12. 26. The fees and allowances to solicitors on proceedings under the Proceedings Act 22 & 23 Viet. c. 35, s. 30,-shaU be the same as are payable under ^'^Lera^ds' these rides, and by the practice of the Court for business of a similar Act. nature (e). (e) This rule is from Gen. Ord. March 20th, 1860, r. 5 ; for the Act here referred to, see ante, p. 102. Special Allowaijces and Geneeal Eegulations. 27. The following" special allowances and general regulations shall Special apply to all proceedings and all taxations in the Supreme Court of Judicature. 1 . As to writs of summons requiring special indorsement, and as to Writs reqijir- special cases, pleadings, and affidavits in answer to interrogatories, ^^ specialm- and other special affidavits, and admissions under Ord. XXXII. r. 4, the taxing officer may, in lieu of the allowances for instructions and preparing or drawing, and attendances, make such allowance for work, labour, and expenses in or about the preparation of such documents as in his discretion he may think proper. 2. As to drawing any pleading or other document, the fees allowed Brawing fee shall include any copy made for the use of the solicitor, agent, or jopy, client, or for counsel to settle. 3. As to instructions to sue or defend, or the preparation of briefs, Instructions it the taxing officer shaU. on special grounds consider the fee in either defend, scale provided inadequate, he may make such further allowance as he shall in his discretion consider reasonable. 4. As to affidavits, when there are several deponents to be sworn, or Affidavits, it is necessary for the purpose of an affidavit being sworn to go to a distance, or to employ an agent, such reasonable allowance may be made as the taxing officer in his discretion may think fit. 5. The allowances for instructions and drawing an affidavit in answer Attendances. to interrogatories and other special affidavits, and attending the depo- nent to be sworn, include aU attendances on the deponent to settle and read over. 6. As to delivery of pleadings, services, and notices, the fees are Delivery of not to be allowed when the same soHoitor is for both parties, unless it Pi®''''™S^> *"• be necessary for the purpose of making an affidavit of service. 7. As to perusals the fees are not to apply where the same solicitor Perusals, is for both parties. 8. Where the same solicitor is employed for two or more defendants, Separate pro- and separate pleadings are delivered or other proceedings had by or oo-defendalts. N N 2 548 ETJLES OF THE SUPREME COURT, 1883. Ord. LXV. for two or more sucli defendants separately, tlie taxing officer stall consider in the taxation of such solicitor's hill of costs, either hetween party and party or between solicitor and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby has been unnecessarily or improperly incurred,' the same shall be disal- lowed (/). (/) This rule is takea from Cons. Ord. XL. r. 12. Wlether the costs should be allowed or not is a matter entirely in the discretion of the taxing master and the Court -will not interfere (Beattie v. Lord Ebwry, 22 W. E. 68 ; 43 L. J. Ch. 80 ; 29 L. T, 419). Where the same solicitor appeared for the receiver and a party to the suit, he was only allowed to charge for one copy of the receiver's account {Sharp v. Wright, 1 Eq. 634) ; and -where one solicitor attended in chambers for two parties in different interests, the costs of one attendance only were allowed (Brown v. Oellatly, 15 W. E. 887) ; see also Tarhuch v. Woodcock, 3 Beav. 239. The liability for costs as between themsehes, of several plaintiffs or defendants employing the same solicitor, is discussed and the rules stated in Se Colquhoun, 5 De G-. M. & Gr. 35 ; and see D((vies v. Chatwood, 11 Ch. D. 244. Defendants in the same interest should appear by one solicitor, but it is difficult to lay down any precise rule as to the circumstances under which parties are held to be in the same interest, so as to be allowed only one set of coste, if they sever in defence. See Morgan & Wurtzburg on Costs, p. 124, where the cases are coUeoted. Where one of a cla«s of defendants is separatdy charged, and relief is prayed against him, he may appear separately and have his costs [Shafo v. Johnson, 9 W. E. 629) ; and see Re Byimher Ironworks Co., 2 Eq. 15, where the costs payable on winding-up petitions are considered ; and JJe European Banking Co., ibid. 521 ; -Be Anglo-llgyptian Navigation Co., 8 Eq. 660. Trustees ought not generally to sever [Gaunt v. Taylor, 2 Beav. 346) ; and see Course v. Humphrey, 26 Beav. 402 ; Att.-Cfen. v. Wyville, 28 Beav. 464, where only one set of costs was allowed, the division being left to the taxing-master. In Prince v. Hine (No. 2), 27 Beav. 345, ■where only one set of costs was allowed, one of the trustees, who had alone obeyed an order for payment of money into Court, by paying in the whole sum ordered to be paid in, was held entitled to the whole of the costs. Charges of fraud against one of them will justify trustees in sever- ing {Walters v. Woodbridge, 7 Ch. D. 504). In general, trustees and their cestuis que trust are not justified in severing [Farr V. Sheriffe, 4 Hare, 528) ; and so with mortgagor and mortgagee {Semnant v. Hood, 27 Beav. 613) ; and see Heinrich v. Sutton, 6 Ch. 220. Husband and A husband and wife living apart were held entitled only to one set of costs {Garey wife. V. Whittimgham, 5 Beav. 268) ; and see Mildmay v. Quicke, 46 L. J. Ch. 667. Parties living AVhere defendants live at a distance, this may be a sufScient ground for putting at a distance. ™ several defences {Aldridge v. Westbrook, 4 Beav. 212 ; Wiles v. Cooper, 9 Beav. 299 ; Sussell v. NichoUs, 9 Jur. 613 ; but see Fm-r v. Sheriffe). Attending for two parties. Defendants appearing by one or more solicitors. Winding-up petitions. TVustees severing. Procuring evidence. Attendance of scientific wit- nesses at the rial. Expenses of witaesses qualifying. 9. As to evidence, such just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence, and the attendance of witnesses, are to be allowed {g). (ig) This rule gives the taxing master power to allow so much for the attendance of scientific witnesses at the trial as shall appear to him to be " just and reasonable ' ' {Twmbull V. Jmson, 3 C. P. D. 264 ; 26 W. E. 815). A reasonable sum wiU ordinarily be allowed for a scientific witness to get up a case for the purpose of giving evidence ; see Smith v. Butter, 19 Eq. 473 ; 23 W. E. 332 ; 31 L. T. 473, where seven guineas a day were allowed to a scientific witness for reading up a case ; Churton v. Frewen, 15 W. E. 559 ; W. N. (1867), 101 ; Duke of Beaufort v. Lord Ashburnham, 13 C. B. N. S. 598 ; 11 W. E. 267 ; 32 L. J. C. P. 97 ; 7 L. T. 710, where charges of an expert for searching for and translating ancient records and documents were allowed ; Se Charles Laffitte $ Co., 20 Eq. 650 ; 44 L. J. Oh. 633 ; 24 W. E. 7 ; 33 L. T. 91, where an accountant was employed as a skilled witness to give evidence in support of a claim ; Bailey v. Kynock, 20 Eq. 632 ; but great care is necessary in dealing with such charges in party and party costs {Batky v. Kynock). See also Murphy v. Nolan, I. R. 7 Eq. 598. The same BULES OF THE SUPREME OOUET, 1883. 549 practice in tUs respect now prevails in the Queen's Bench Division {Machley v. Ord LXV ChMingworth, 2 C. P. D. 273 ; 46 L. J. C. P. 484 ; 26 W. E. 660 ; 36 L. T. 614 ; '■ Tumbull V. Jansoii, 3 C. P. D. 264 ; 26 W. E. 816). In Statiffer Zeathes v. Slander Zeathes, W. N. (1879), 86, the Court -would not allo-w the costs of more than three experts to prove a county custom. The costs of keeping a witness abroad, in addition to the costs of briaging him over here to give evidence, may be allowed (Picasso v. Trustees of Mart/port Sarbour, W. N. (1884), 86 ; and see as to costs and expenses of witnesses, Ord. XXXVII. 1. 9, and note thereto, ante, p. 424. The costs of all necessary evidence will of course be allowed ; see Stimpson v. Jepson, 18 w. E. 962. As to the costs of unnecessary evidence, see Booth v. Booth, 1 Beav. 130 ; Fat-row v. Sees, 4 BeaV. 24. The costs of affidavits filed, but not entered in the order, will not be allowed even Costs of on a taxation as between sohoitor and client [Stephens v. Zord Newborough, 1 1 Beav. affidavits. 403 ; Stuart v. Greenall, 13 Price, 756) ; and see further as to costs of affidavits, CamiUe v. Bonati, 13 W. E. 368. A solicitor is entitled to the costs of an affidavit made on delivering up papers under an order {JS,e Catlin, 18 Beav. 614 ; see Raw- linson v. Moss, 9 W. E. 733). Where notice was given to cross-examine witnesses at the hearing, and they were Witnesses brought up accordingly, but were not, in fact, cross-examined, it was held that the brought up costs of bringing them up ought to be allowed in taxation as between party and for cross- party [Clark V. Malpas, 31 Beav. 654 ; 1 N. E. 221). Where interrogatories, though examination prepared, were not filed*iu order to save expense, the costs of preparing them were at hearing, allowed on taxation as between party and party [Bavies v. Marshall (No. 2), 1 Dr. & Sm. 664 ; 9 W. E. 766). But where a demurrer was allowed the costs of perusing interrogatories, served before the demurrer was filed, were disallowed [Ernest v. Fartridffe, 2 N. E. 232). The costs of taking depositions which became useless were disallowed [Ridley v. Sutton, 1 H. & C. 741 ; but see Buhe of Beaufort v. Zord Ash- hurnham, 13 C. B. N. S. 598). A solicitor wUl be allowed a reasonable sum for reading depositions taken abroad ( Wentworth v. Zloyd, 2 Eq. 607) ; and may be allowed costs of perusing exhibits to affidavits [Rymer v. BeRosaz, 24 Ch. D. 684). Where a similar affidavit has been filed in each faf several suits, a solicitor is not entitied to ohaxge for perusing, when he has simply taken an office copy of the affidavit in one suit and examined the affidavits in the other suits I Belts v. Cleaner, 7 Ch. 513). The costs of shorthand notes of the evidence and proceedings, including both the Costs of short- sum paid to the shorthand writer and the costs of copies, wiU not be allowed on hand notes, taxation without a special direction from the judge at tiie lime of giving judgment (Ashworth v. Outram, 9 Ch. D. 483; 27 W. E. 98 ; 39 L. T. 441 ; Mrkwoody. Webster, 9 Ch. D. 239 ; 26 W. E. 812 ; 47 L. J. Ch. 880 ; Wells v. Mitcham Gas Co., 4 Ex. D. 1 ; 48 L. J. Ex. 75 ; 27 W. E. 112 ; 39 L. T. 667). Where, however, shorthand notes of evidence are essential to the proper hearing of the case, the costs of such notes will be allowed [Zee Conservancy Board v. Button, 12 Ch. D. 383; 41 L. T. 500; Clark v. Malpas, 31 Beav. 664; 1 N. E. 221; 11 W. E. 261 ; and see Re London and Birmingham Railway Co., 6 W. E. 141 ; Malins V. Frice, 1 Ph. 590 ; Tioinberrow v. Braid, W. N. (1878), 169). Pearson, J., allows the costs in aU but very trivial cases [Gamdy v. Reddaway, W. N. (1883), 89). In Thorley^s Cattle Food Co. v. Massam, 41 L. T. 543, the Court declined to give the successful plaintiff the costs of the shorthand writer's notes of the proceedings, which had been taken by each side, as the Court had not required them for its own use. The Court of Appeal, of course, has power to allow the costs of all shorthand notes properly used in the appeal, whether taken for the purposes of the appeal or not ; but an application to be allowed such costs should be made when judgment is delivered [Hill v. Metropolitan Asylums Board, 49 L. J. Q. B. 668 ; 28 W. E. 664 ; W. N. (1880), 98). In Crawford^. Mornsea Brick Co., W. N. (1876), 216, an order allovdng the costs of shorthand notes was made at chambers by V.-C. Malins. As a general rule, however, the costs of shorthand notes of evidence in the Court below will not be allowed ; the judge's notes of the evidence, supplemented by those of counsel, ought in all ordinary cases to be sufficient for the purposes of the appeal [Kelly v. Byles, 13 Ch. D. 682 ; 28 W. E. 685 ; 42 L. T. 338 ; 49 L. J. Ch. 181 ; Re Buchess of Westminster Co., 10 Ch. D. 307 ; 27 W. E. 639 ; 40 li. T. 300 ; Vernon v. Vestry of St. James, Westminster, 16 Ch. D. 449, 473 ; 50 L. J. Ch. 81 ; 44 L. T. 229 ; Earl de la Warr v. Miles, 19 Ch. D. 80 ; 30 W. E. 36 ; W. N. (1881), 140). Where the vivd voce evidence was voluminous and the appeal could not have been properly argued vrithout referring to aU parts of it, the costs of printing and transcribing, but not the costs of taking, the notes, were allowed [Bigsby V. BicUnson, 4 Ch. D. 24 ; 46 L. J. Ch. 280 ; 26 W. E. 89, 122 ; 36 L. T. 679) ; and see Orr, Swing § Co. v. Johnston ^ Co., 13 Ch. D. 465 ; Smith v. Chadwick, 20 Ch. D. p. 81. In Fx parte Sawyer, 1 Ch. D. 698, the charge for a copy of a shorthand writer's notes of the proceedings in a County Court was allowed as part of the costs of an 550 EULES OF THE StJPEJEME COURT, 1883. Ord. LXV. Sliortliajid notes of judgmeiit. Costs as be- tween solicitor and client. Agency corre- spondence. Attendance of soUoitor to settle judg- ment. Proceedings in chambers. Non-attend- ance at diambers. appeal to the chief judge ; see also Watson v. Great Western Rf. Co., 6 Q. B. D. 163 ; 60 L. J. C. P. 302 ; Me Aliezette, 8 Ch. X). 599. In Se BeetUstone, W. N. (1876), 1, which -was heard in private, the costs of shorthand notes of vivA voce evi- dence were ordered to he paid out of the estate. Where the Court of Appeal makes use of shorthand notes of the judgment below, it aHows the costs of the notes [OoUyer v. Isaaes, 45 L. T. 567) ; and see London ^ South Western Ry. v. Gomm, 20 Ch. D. 689. The costs of a shorthand writer's notes of the argument wiU never, it seems, be allowed {Se London ^ BirmmgJum Ry. Co., 6 W. E. 141). In Weymann v. Corcoran, 41 L. T. 692, the costs of copies of the transcript of the notes of the judgment below, furnished to the defendant's counsel, were allowed. And see Singer Co. v. Loogf, 31 W. E. 392 ; W. N. (1883), 16. The costs of' shorthand notes of the evidence will not he allowed as between a solicitor and his own client, unless the solicitor has expressly told the client that he may have to pay them eiien if he gets the general costs of the action {Re Bh/th, 10 Q. B. D. 207). 10. As to agency correspondence, in country agency causes, and matters, if it be shown to the satisfaction of the taxing officer that such correspondence has been special and extensive, he is to be at liberty to make such special allowance in respect thereof as in his discretion he may think proper. 11. As to the attendance of solicitors upon the registrars in the Chancery Division for the purpose of settling the terms of and passing judgments or orders, the taxing officer may, in such cases as are pro- vided for by Order LXII., rule 15, make such special aUowances in respect thereof as he shall consider reasonable. 12. As to attendances at the judges' chambers, where, from the length of the attendance, or from the difficulty of the case, the judge or master shall think the highest of the fees an insufficient remunera- tion for the services performed, or where the preparation of the case or matter to lay it before the judge or master in chambers, or on a summons, shall have required skill and labour for which no fee has been allowed, the judge or master may allow such fee, in lieu of the fee of II. Is. provided, not exceeding 21. 2s., or where the higher scale is applicable 3Z. 3«., or in proceedings to wind up a company bl. 5s., as in his discretion he may think fit ; and where the preparation of the case or matter to lay it before a judge at chambers on a summons shall have required and received from the solicitor such extraordinary skOl and laboxir as materially to conduce to the satisfactory and speedy disposal of the business, and therefore shall appear to the judge to deserve higher remuneration than the ordinary fees, the judge may allow to the solicitor, by a memorandum in writing expressly made for that purpose and signed by the judge, specifying distinctly the grounds of such allowance, such fee, not exceeding ten guineas, as in his dis- cretion he may think fit, instead of the fees of 21. 2s., 31. Ss., and 51. 5s. 13. As to attendances at the judges' chambers, where by reason of the non-attendance of any party (unless it be considered expedient to proceed ex parte), or where by reason of the neglect of any party in not being prepared with any proper evidence, account, or other pro- ceeding, the attendance is adjourned without any useful progress being made, the judge may order such an amount of costs (if any), as he RULES OF THE SUPREME COURT, 1883. 551 shall think reasonable to be paid to the party attending by the party Ord. LXV. BO absent or neglectful, or by his solicitor personally ; and the party so absent or neglectful is not to be allowed any fee as against any other party, or any estate or fund in which any other party is interested. 14. A folio is to comprise seventy-two words, every figure comprised Polio to be in a column, or authorized to be used, being counted as one word. words. 15. Such costs of procuring the advice of counsel on the pleadings, Counael. evidence, and proceedings in any cause or matter as the taxing ofRcer shall in his discretion think just and reasonable, and of pro- curing counsel to settle such pleadings and special afSdavits as the taxing officer shall in his discretion think proper to be settled by counsel, are to be allowed ; but as to affidavits a separate fee is not to be allowed for each affidavit, but one fee for aU. the affidavits proper to be so settled, which are or ought to be filed at the same time (A). (A) This rule supersedes Cons. Ord. XL. r. 17 ; the fees for counsel settling afE- 'Eeea to davits are generally allowed ; see Davies^v. Marshall (No. 2), 1 Dr. & Sm. 56i. Pees counsel axe in to counsel are almost invariably left to the discretion of the taxing master (Att.-Gen. the discretion V. Iiord Carrington, 6 Beav. 454 ; Parkinson v. Sanbury, 13 W. R. 1056 ; 11 Jur. of the taxing N. S. 475 ; 12 L. T. 624 ; Smith v. Daniell, 34 L. T. 899 ; Stanton v. Saring, W. N. master. (1875), 188) ; including the conveyancing counsel of the Court {JRumsey v. Sumsey, 21 Beav. 40) ; see also r. 38, post, p. 657. The Court, in fact, -will not interfere unless a gross mistake has been made {Brovm v. Sewell, 16 Ch. D. 517 ; 29 "W. R. 295 ; Sargremes v. Scott, 4 C. P. D. 21 ; 27 W. R. 323 ; 40 L. T. 35 ; Kidstone v. Empire Insurance Co., 16 L. T. 286)'. 16. As to counsel attending at judges' chambers, no costs thereof Counsel at shaU in any case be allowed, unless the judge certifies it to be a proper ol'aml'era- case for counsel to attend (»'). (t) This rule applies on a taxation as between a solicitor and his own client (iJe Chapman, 9 Q. B. D. 254 ; affirmed, 10 Q. B. D. 54). 17. As to inspection of documents under Ord. XXXI. r. 15, no Inspection of allowance is to be made for any notice or inspection, unless it is shown o^^^^^ ■ to the satisfaction of the taxing officer that there were good and suffi- cient reasons for giving such notice and making such inspection {k). (A) 'Where an order is made for production of documents at the office of the producing party's soUoitor, that party, if ultimately successful, is not entitled as between party and party to his solicitor's costs of the production, nor to his own costs of inspecting the documents of the other party (Brown v. Sewell, 16 Ch. D. 517). 18. As to taking copies of documents in possession of another party, Copies. or extracts therefrom, under rules of Court or any special order, the party entitled to take the copy or extract is to pay the solicitor of the party producing the document for such copy or extract as he may, by writing, require, at the rate of Ad. per folio ; and if the solicitor of the party producing the document refuses or neglects to supply the same, the soHcitor requiring the copy or extract is to be at liberty to make it, and the solicitor for the party producing is not to be entitled to any fee in respect thereof {I). (/) As to the costs of copies of pleadings on an interlocutory application, see Warner Solicitor con- oemed for several parties. TJimeoesBaiy appeaxances on petitioB. 552 EULES OF THE SUPREME COUET, 1883. Ord. LXV. V. Mosses, 19 Ch. D. 72 ; if the copies are necessary or proper for the attainment of justice they must be allowed. Documents previously existing in print cannot be charged for as copies ( Under- wood \. Secretary of State in Council, 16 W. E. 762, 926 ; 18 L. T. 351). A solicitor concerned for two or more parties is not allowed to charge for supply- ing to himself copies of documents which he has himself prepared [Sharp v. Wright, 1 Eq. 634). Where there is a voluminous correspondence which the Court must read, the expense of having copies made by a law stationer will be allowed ; see Hayne v. Cavell, W. N. (1875), 141. See further, as to the costs of copies, Millard v. Burroughes, W. N. (1880), 4 ; Murphy v. Nolan, I. E. 7 Eq. 498 ; Wyman v. JBockett, W. N. (1866), 318 ; Singer Co. V. Zoog, 31 W. E. 392 ; W. N. (1883), 15. As to the costs of a copy of a docu- ment already on the file, see Hx parte Hall, 19 Ch. D. 580 ; and as to defendant's costs of takmg copies of and perusing answer of co-defendants, see Great Eastern Sy. Co. Y. Norwich and Spalding Ey. Co., W. N. (1881), 92. 19. Where any petition in a cause or matter assigned to the Chancery Division is served, and notice is given to the party served that in case of his appearance in Court his costs will be objected to, and accom- panied by a tender of costs for perusing the same, the amount to be tendered shall be 11. 10s. The party making such payment shall be allowed the same in his costs, provided such service was proper, but not otherwise ; but this order is without prejudice to the rights of either party to costs, or to object to costs where no such tender is made, or where the Court or judge shaU consider the party entitled, notwithstanding such notice or tender, to appear in Court. In any other case in which a solicitor of a party served necessarily or properly peruses any such petition, without appearing thereon, he is to be allowed a fee not exceeding the amount aforesaid (m). (m) Trustees respondents to a petition under the Trustee EeUef Act who have accepted the sum tendered will not be allowed their costs of appearance unless they come for some good reason {He Sutton, 21 Ch. D. 855 ; 30 W. E. 657). Where parties whose appearance is unnecessary are served without any tender, they will be allowed a small fixed sum, probably 30s. {Campbell v. Holyland, 7 Ch. D. 166 ; Somes V. Martin, W. N. (1882), 113) ; and see ante, p. 478 ; r. 23, post, p. 553 ;, Morgan & Wurtzburg on Costs, p. 67, seq. Improper and 20. The Court or judge may, at the hearing of any cause or matter, or upon any application or proceeding in any cause or matter in Court or at chambers, and whether the same is objected to or not, direct the costs of any indorsement on a writ of summons, pleading, summons, aflS-davit, evidence, notice requiring a statement of claim, notice to produce, admit, or cross-examine witnesses, account, statement, pro- curing discovery by interrogatories or order, applications foretime, bills of costs, service of notice of motion or summons, or other pro- ceeding, or any part thereof, which is improper, vexatious, unneces- sary, or contains vexatious or unnecessary matter, or is of unnecessary length, or caused by misconduct or negligence, to be disallowed, or may direct the taxing ofl^eer to look into the same and to disallow the costs thereof, or of such part thereof as he shall find to be improper, unnecessary, vexatious, or to contain unnecessary matter, or to be of unnecessary length, or caused by misconduct or negligence ; and in such case the party whose costs are so disallowed shall pay the costs occasioned thereby to the other parties ; and in any case where such unnecessaiy matter. RULES OF THE SUPREME COURT, 1883. 653 question shall not have been raised before and dealt witli by tbe Ord. LXV. Court or judge, it sball be the duty of the taxing officer to look into the same (and, as to evidence, although the same may be entered as read in any decree or order) for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so : and in the Queen's Bench Division the master shall make such order as maybe required to effect the object of this regulation (»). (») THs rule takes the place of Cons. Ord. XL. rr. 9, 10. The taxing master Unnecessary must exercise the discretion thus given him without special directions from the matter, judge (Saines v. TTormsley, 47 L. J. Ch. 844 ; 27 "W. R. 36 ; 39 L. T. 85 ; W. N. (1878), 193). The Court can act under this rule mero motu and without any application hy the aggrieved party {Cracknally. Janson, 11 Ch. D. 1). And apart from any rule, it has power to order oppressive documents to he taken off the file {Sill v. Mart-Davis, 26 Ch. D. 470). The Court wiU. in general leave to the taxing master the province of distinguish- ing w^hat parts are unnecessary. See Jte Atkinson and Pilgrim, 26 Beav. 151, (decided under the similar rule, Cons. Ord. XL. r. 9) ; Watson v. Rodtvell, "W. N. (1876), 214. For form of direction, see Cracknall v. Janson ; Burehell v. Giles, 1 1 Beav. 34 , Woodi V. Woods, 5 Hare, 229 ; SansUpv. Kitton, 8 Jur. N. S. 836 ; and observations of Lord Romilly in Moore v. Smith, 14 Beav. 396. As to disallowing the costs occasioned by the issue of a great number of writs of summons where one might have sufficed, see Omret v. Yowng, W. N. (1883), 216. And as to scandalous matter in a bill of costs, see Re Miller, W. N. (1884), 234. 21. In any case in which, under the last preceding regulation, or Set-off. any other rule of Court, or by the order or direction of a Court or judge, or otherwise, a party entitled to receive costs is liable to pay costs to any other party, the taxing officer may tax the costs such party is so liable to pay, and may adjust the same by way of deduction or set-off, or may, if he shall think fit, delay the allowance of the costs such party is entitled to receive until he has paid or tendered the costs he is liable to pay ; or such officer may allow or certify the costs to be paid, and direct payment thereof, and the same may be recovered by the party entitled thereto in the same manner as costs ordered to be paid may be recovered (o). (o) See Batten v. Wedgwood Coal Co., W. N. (1884), 218. A set-off for costs may be allowed notwithstanding the solicitor's lien ; see r. 14, ante, p. 645. See as to set-off generally, Eobarts v. Bide, 8 Ch. D. 198 ; Coopers. Pitcher, 4 Ha. 485 ; Barker v. Semming, 5 Q,. B. D. 609 ; Morgan feWurtzburg on Costs, p. 133. 22. Where in the Chancery Division any question as to any costs is Note of under regulation 20 dealt with at chambers, the chief clerk is to make ^dCT^Ee^20. a note thereof, and state the same on his allowance of the fees for attendances at chambers, or otherwise as may be convenient for the information of the taxing officer. 23. Where any party appears upon any application or proceeding Unnecessajy in Court or at chambers, in which he is not interested, or upon which, appearance, according to the practice of the Court, he ought not to attend, he is not to be allowed any costs of such appearance unless the Court or judge shall expressly direct such costs to be allowed {p). (p) See note {a) to Ord. LV. r. 40, ante, p. 498 ; and r. 19, ante, p. 5S2. 554 BULBS OF THE SUPREME COURT, 1883. Ord. LXV. Applications to extend time. Duties, &c. of taxing masters. "Wtere costs form part of an account. Attendance 24. The costs of applications to extend the time for taking any pro- ceedings shall he in the discretion of the taxing officer, unless the Court or judge shall have specially directed how the costs are to be paid or borne. The taxing officer shall not aUo-w the costs of more than one extension of time, unless he is satisfied that such extension was necessary, and could not, with due diligence, have been avoided. The costs of a summons to extend time shall not be allowed in cases to which rule 8 of Ord. LXIV. applies, unless the party takrag out such summons has previously applied to the opposite party to consent, and he has not given a consent, to a sufficient extension of time, or the taxing officer shall consider there was a good reason for not making such application ; and in case the taxing officer shall not allow the costs of such summons, and shall consider that the party applying ought to pay the costs of any other party occasioned thereby, he may direct such payment, or deal with such costs, in the manner provided by regulation 21. 25. The taxing officers of the Supreme Court, or of any division thereof, shall, for the purpose of any proceeding before them, have power and authority to administer oaths, and shall, in relation to the taxation of costs, perform all such duties as have heretofore been or are by general orders directed to be performed by any of the masters, taxing masters, registrars, or other officers of any of the Courts whose jurisdiction is by the principal Act transferred to the High Court of Justice or Court of Appeal, and shall, in respect thereof, have such powers and authorities as previous to the commencement of the prin- cipal Act were, or by general orders are, vested in any of such officers, including examining witnesses, directing production of books, papers, and documents, making separate certificates or aJlocaturs, requiring any party to be represented by a separate solicitor, and to direct and adopt all such other proceedings as could be directed and adopted by any such officer on references for the taxation of costs, and taking accounts of what is due in respect of such costs, and such other accounts connected therewith, as may be directed by the Court or a judge {q). (?) TMs rule is substantially identical -with Cons. Ord. XL. r. 1 . Matters un- connected witli bills of costs cannot be referred to the taxing master (King v. Savery, SDea. M. &GI-. 311). 26. Where an account consists in part of any bill of costs, the Court or judge may direct the taxing officer to assist in settling such costs,- not being the ordinary costs of passing the account of a receiver, and the taxing officer, on receiving such direction, shall proceed to tax such costs, and shall have the same powers, and the same fees shall be payable in respect thereof, as if the same had been referred to the taxing officer by an order ; and he shall return the same, with his opinion thereon, to the Court or judge by whose direction the same were taxed. 27. The taxing officer shall have authority to arrange and direct RULES OF THE SUPBEME COURT, 1883. 555 ■what parties are to attend before him on the taxation ol costs to be Ord. LXV. borne by a fund or estate, and to disallow the costs of any party before taxing whose attendance such officer shall in his discretion consider un- master, necesfsary in consequence of the interest of such party in such fund or estate being small or remote, or sufficiently protected by other parties interested. 28. When any party entitled to costs refuses or neglects to bring in Refusal to his costs for taxation, or to procure the same to be taxed, and thereby f^j, taxation. prejudices any other party, the taxing officer shall be at liberty to certify the costs of the other parties, and certify such refusal or neglect, or m.ay allow such party refusing or neglecting a nominal or other sum for such costs, so as to prevent any other party being prejudiced by such refusal or neglect. 29. As to costs to. be paid or borne by another party, no costs are AUowanoes to be allowed which do not appear to the taxing officer to have been o» t^^^tioJi necessary or proper for the attainment of justice or defending the party and rights of the party, or which appear to the taxing officer to have been P^^- incurred through over-caution, negligence, or mistake, or merely at the desire of the party (r). (r) Of. Cons. Ord. XL. r. 32. ' As to what costs -will be aUowed by the taxing master, see generally Morgan & Wurtzburg on Costs, p. 482 et seq. The general principle is, that, as between party and party, only such costs are ohaxgeable as were reasonably necessary for the conduct of the litigation ; other charges are considered "luxuries," and must be paid by the party incurring them ; see Smith v. Buller, 19 Eq. 473 ; 45 L. J. Ch. 69 ; 23 "W. R. 322 ; . 31 L. T. 473 ; BatUy v. Kynock, 20 Eq. 632 ; Warner v. Mosses, 19 Ch. D. 72. 30. As to any work and labour properly performed (s) and not Work, &c. not herein provided for, and in respect of which fees have heretofore been ^^°^ ^ °^' allowed, the same or similar fees are to be allowed for such work and labour as have heretofore been allowed. (s) As to taxation of costs where the work is really thrown away, e. g. by a motion being abandoned or an action discontinued, see -Hamsow v. Zeutner, 16 Ch. D. 559 ; and see also Thomas v. Falin, 21 Ch. D. 360. 31. Where the plaintiff is directed to pay to the defendant the costs Costs of of the cause, the costs occasioned to a defendant by any amendment of ^f pleadings. the plaintiff's pleadings shall be deemed to be part of such defendant's costs in the cause (except as to any amendment which shall appear to have been rendered necessary by the defatdt of such defendant) ; but there shall be deducted from such costs any sum which may have been paid by the plaintiff according to the course of the Court at the time of any amendment {(). {t) This rule is taken from Cons. Ord. XL. r. 7. 32. Where upon taxation a plaintiff who has obtained a judgment Whereamend- with costs is not allowed the costs of any amendment of his pleadings ™^* iimieces- on the ground of the same having been unnecessary, the defendant's costs occasioned by such amendment shall be taxed, and the amount 556 EULES OF THE SUPREME COURT, 1883. Unnecessary amendments. Order for taxation, when un- necessary. Taxation of costs where parties differ. Ord. LXV. thereof deducted from the costs to be paid lay the defendant to the plaintiff (m). (t() This is taken from Cons. Ord. XL. r. 8. See as to directions to the taxing master to tax the costs occasioned by unneces- sary amendments, Burchell v. Giles, 11 Beav. 34 ; Watts v. Manning, 1 S. & S. 421 ; IPledge \. Suss, Johns. 663 ; and where important allegations contained in the original bill were struck out by amendment, the plaintifi had to pay the additional costs occasioned [Strickland v. Strickland, 3 Beav. 242) ; and see Bower v. Cooper, 2 Hare, 408 ; Mavor v. Dry, 2 S. & S. 113 ; Mounsey v. Btirnham, 1 Hare, 22. 33. Where an action or petition is dismissed with costs, or a motion is refused with costs, or any costs are by any general or special order directed to be paid, the taxing officer may tax such costs without any order referring the same for taxation, unless the Court or a judge upon the application of the party alleging himself to be aggrieved prohibits the taxation of such costs [v). {v) This rule is taken from Cons. Ord. XT;, i-. 38 ; it is not generally acted upon, and it is still the practice to insert the direction for taxation. If nothing is said to the contrary, an order directing costs to he paid, means that they shall be taxed and paid forthwith [Fhilippa \. Fhilipps, 5 Q. B. D. 60 ; 28 W. E. 376). 34. Where it is directed that costs shall be taxed in case the parties differ about the same, the party claiming the costs shall bring the biU. of costs into the office of the proper taxing officer, and give notice of his having so done to the other party, and at any time within eight days after such notice such other party shall have liberty to inspect the same without fee, if he thinks fit. And at or before the expiration of the eight days, or such further time as the taxing officer shall in his discretion allow, such other party shall either agree to pay the costs or signify his dissent therefrom, and shaU thereupon be at liberty to tender a sum of money for the costs ; but where he makes no such tender, or where the party claiming the costs refuses to accept the sum so tendered, the taxing officer shaU proceed to tax the costs ; and where the taxed costs shall not exceed the sum tendered, the costs of the taxation shall be borne by the party claiming the costs (zo). [w) This rule is from Cons. Ord. XL. r. 39. 35. Where any costs are by any judgment or order directed to be taxed and to be paid out of any money or fund in Court, the taxing officer in his certificate of taxation shall state the total amount of all such costs as taxed without any direction for that purpose in such judgment or order (x). [x) This is from Cons. Ord. XL. r. 40. Conveyancing 36. The allowances in respect of fees to the conveyancing counsel of cminsel, scien- ^^ Court, and to any accountants, merchants, engineers, actuaries, and &o. ' other scientific persons to whom any question is referred, shall be regulated by the taxing officers, subject to appeal to the Court or judge, whose decision shall be final (y). [y) This rule is taken from 16 & 16 Vict. c. 80, s. 43. As to accountants' charges, Total amount of costs taxed to be stated. RULES OF THE SUPREME COURT, 1883. 557 se6 Meymolt v. Meymott (No. 2), 33 Beav. 590 ; as to surveyors, sseA.-O. v. Drapers' Ord. LXV. Co., 9 Eq. 69. 37. The rules, orders, and practice of any Court whose jurisdiction Existing is transferred to the High Court of Justice or Court of Appeal, relating oontinue to costs, and the allowance of the fees of solicitors and attorneys, and vhere not in- the taxation of costs, existing prior to the commencement of the prin- .^j^j^ ^^^ ^^g^ cipal Act, shall, in so far as they are not inconsistent with the principal rules. Act and these rules, remain in force and he applicable to costs of the same or analogous proceedings, and to the allowance of the fees of solicitors of the Supreme Court and the taxation of costs in the High Court of Justice and Court of Appeal (z). (z) See as to this rule, PringU v. Gloag, 10 Ch. D. 678. 38. As to all fees or allowances which are discretionary, the same Discretionary- are, unless otherwise provided, to be allowed at the discretion of the *^f ^ ^"^ taxing officer, who, in the exercise of such discretion, is to take into consideration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involvedj the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceediags, and all other circum- stances : and where a party is entitled to sign judgment for his costs, the taxing officer, in taxing the costs, may allow a fixed sum for the costs of the judgment. 39. Any party who may be dissatisfied with the allowance or dis- Objection to allowance by the taxing officer, in any bill of costs taxed by him, of ^j, .jiaaUow- the whole or any part of any items, may, at any time before the certi- ance by the ficate or allocatur is signed, deliver to the other party interested j^ast™ therein, and carry in before the taxing officer, an objection in writing how made, to such allowance or disallowance, specifying therein by a list, in a short and concise form, the items, or parts thereof, objected to, and the grounds and reasons for such objections, and may thereupon apply to the taxing officer to review the taxation in respect of the same (a). (a) This rule is taken from Cons. Ord. XL. r. 33 ; the corresponding repealed rule did not oblige the objecting party to state his reasons [Simmons v. Storer, 14 Oh. D. 15"4; 49 L. J. Ch. 121 ; 28 "W. R. 408; 42 L. T. 291). A person not a party to an order for taxation who wishes the taxation reviewed should apply to have the order to tax set aside, and not move to review the taxation [Charlton v. Charlton, W. N. (1882), 183 ; 31 "W. R. 237). 40. Upon such application the taxing officer shall reconsider and Eeviewof review his taxation upon such objections, and he may, if he shall taxation upon think fit, receive further evidence in respect thereof, and, if so re- quired, by either party, he shall state either in his certificate of taxa- tion or allocatur, or by reference to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances relating thereto (b). (J) This rule is from Cons. Ord. XL. r. 34. 558 RULES OP THE SUPREME COURT, 1883. Ord. LXV. Review of taxation on summons. What ques- tions enter- tained on. application to review taxation. Where refer- ence is from common law master. What matters within pro- vince of tax- ing master. Costs of application to review. 41. Any party who may be dissatisfied witli the certificate or alloca- tur of the taxing officer, as to any item or part of an item which may have been objected to as aforesaid, may within fourteen days from the date of the certificate or allocatur, or such other time as the Court or judge, or taxing officer, at the time he signs his certificate or allocatur, may allow, apply to a judge at chambers for an order to review the taxation as to the same item or part of an item, and the judge may thereupon make such order as the judge may think just ; but the cer- tificate or allocatur of the taxing officer shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid (c). (c) This rule is from Cons. Ord. XL. r. 35. A re-taxation will in no case be directed if the items alleged to be overcharged do not amount to forty shillings {Newton v. Boodle, 4 C. B. 359) ; and on an appli- cation to review, the amount must be stated (Re Searden, 9 Exch. 210) ; and the items alleged to have been improperly allowed or disallowed must be specified (ij« Congreve, 4 Beav. 87) . A taxation of costs cannot be reviewed on a point not raised before the taxing master {Scorfield v. Jones, 18 Sol. J. 86). Unless there has been some very gross overcharge (Smith v. Buller, 19 Eq. 473), the Court, on an appUoa- tion to review, will only determine questions whiob involve some principle, and not those relating to quantum only, which will be left to the discretion of the taxing master (Ee Catlin, 18 Beav. 508 ; Friend v. Solly, 10 Beav. 329 ; Se Congreve, 4 Beav. 87 ; Turner v. Turner, 7 W. R. 573 ; Re Subbard, 23 Beav. 481 ; Att.-Gen. v. Lord Carrington, 6 Beav. 454 ; Ahop v. Lord Oxford, 1 M. & K. 564 ; Att.-Gen. v. Drapers' Co., 9 Eq. 69 ; Re Mortimer, Ir. R. 4 Eq. _96 ; 18 W. R. 367). And the discretion of the taxing master applies not only to iSie quantum but to the quoties, e.g., in the case of interviews, to the number of interviews as well as to the amount to be allowed for each (Re JBrown, 4 Eq. 464) . Where, however, there had been some irregularity in the proceedings before the taxing master [Fenton v. Criclcett, 3 Mad. 496), or where coats had been wrongly omitted from taxation (Greenwood v. Chwrehill, 14 Beav. 160), or taxed on the higher instead of on the lower scale (Paddon v. Winch, 20 Eq. 449), or where the master refused to allow any costs in respect of a particular proceeding (Heming v. Zeifchildi 8 W. R. 352, affirmed on appeal, 9 W. R. 174), •flie taxation was ordered to be reviewed ; see also R. v. L. C. ^ D. Ry. Co., 12 Jur. N. S. 230 ; Gilbert v. Guignon, 21 W. R. 746. Where the objections were carried in before the certificate was filed, but were not pro- ceeded with, it was held that the Court in exercise of its general jurisdiction over its officers could order the taxation to be reviewed (Kmrick v. Wood, W. N. (1870), 216). Where, in taxing costs at law, the common law master referred equity matters to a Chancery taxing master, an application to review such taxation was refused (Re Lett, low. R. 6). It is not the province of the taxing master to deal with any but ordinary costs : any other question which arises must be dealt with by the judge in chambers (Turner v. Turner, 7 W. R. 573 ; King y. Savery, 8 De a. M. & G. 311). Thus the master has no jurisdiction to inquire into the propriety of a compromise entered into between the solicitor and the' client which the client has not sought to impeach (Re Catlin, 18 Beav. 511), and his doing so wiU be a ground for reviewing the taxation (ibid.). In Graham v. Wickham, 34 L. J. Ch. 220 ; 11 Jur. N. S. 168 ; 13 W. R. 396 ; 12 Lr. T. 39, it was held that the taxing master might allow executors- their costs of litigation, though no direction was given in the suits in which such costs were incurred that they should be so allowed. Where the applicant had not taken proper steps to satisfy the master when the matter was in his ofSce, he waa, though successful on his application to review, ordered to pay the costs of the application (Sturge v. Bimsdale, 9 Beav. 170). Wiere the taxation was upheld in some respects, and ordered to be reviewed in others, no costs were given (Re Catlin, 18 Beav. 608). See, too. Re Whalley, 20 Beav. 678 ; Re Colquhomi, 5 De Gr. M. & G-. 35 ; 1 Sm. & Griff. App. 1 ; Re London, Birmingham and Bucks Ry. Act, 6 W. R. 141, Evidence oa application. 42. Such application shall be heard and determined by the judge upon the evidence which shall have been brought in before the taxing RULES OF THE SUPREME COURT, 1883. 559 officer, and no further evidence shall be received upon the hearing Ord. LXV. thereof, unless the judge shall otherwise direct {d). {d) This rule is from Cons. Ord. XL. r. 36. See note to last rule. 4'3. When a writ of summons for the commencement of an action Fees, &o. in shall be issued from a district registry, and when an action proceeds a^^^ragis- in a district registry, all fees and allowances, and rules and directions tries. relating to costs, which would be applicable to such proceeding if the writ of summons were issued at the central office, and if the action proceeded in London, shall apply to such writ of summons issued from and other proceedings in the district registry (dd). [dd) See Wilson v. Alltree, 27 Ch. D. 242. 44. No retaining fee to counsel shall be allowed on taxation as Retaining between party and party. *^^- 45. Eees for conferences are not to be allowed in any cause or matter Conferences. in addition to the solicitor's and counsel's fees for drawing and settling, or perusing any pleadings, affidavits, deeds, or other proceedings or abstracts of title, or for advising thereon, unless it shall appear to the taxing officer for some special reason that a conference was necessary or proper. 46. In any case in which under rule 12 of this order the scale of Costs' of one costs in County Courts is applicable, the costs of briefing more than <50"°sel. one counsel shall not be allowed, unless the taxing officer shall, for special reasons, be of opinion that briefing more than one counsel was proper. 47. Where the costs of retaining two counsel may properly be Costs of two allowed, such allowance may be made although both such counsel may """^^l- have been selected from the outer bar (e). («) TUs is taken from Cons. Ord. XL. r. 20. The costs of two counsel should Number of be allowed in all ordinary cases [Llanover v. Somfray, W. N. (1884), 134 ; Cooke v. counsel Turner, 12 Sim. 649 ; Stevens v. Zord Newhorough, 11 BeaT. 403 ; Sturge v. Dimsdale, allowed. 9 Beav. 170 ; but see Friend v. Solly, 10 Beav. 329 ; Yearsley v. Tearsley, 19 Beav. 1). The costs of a third counsel will not be allowed, as between party and party, except under very special eircumstanees ; see Fearce v. Lindsay, 1 De Gr. P. & J. 577 ; Kirkwood v. Webster, 9 Ch. D. 239 ; Wentworth v. Lloyd, 2 Eq. 607 ; Morgan & Wurtzburg on Costs, p. 491 et seg., where the oases are collected. -Ajxd even ia a solicitor and client taxation the general rule is to allow only the costs of two {Friend y. Solly, 10 Beav. 329 ; Dovming College Case, 3 My. & Cr. 474). The mere fact of a junior having been appointed a Queen's counsel is not a sufficient reason for aUowing the costs of three counsel [Mem. 10 Ch. 540) ; and see, further, as to fees to counsel, rr. 15, 16, and notes thereto, ante, p. 551 ; Morgan & 'Wurtzburg, 489 — 497. 48. As to refresher fees, when any cause or matter is to be tried or Refreshers. heard upon vivd voce evidence in open Court, if the trial shall extend over more than one day, and shall occupy either on the first day only, or partly on the first and partly on a subsequent day or days, more than five hours, without being concluded, the taxing officer may allow, 560 RULES OF THE SUPKEME COURT, 1883. Ord. LXV. for every clear day subsequent to that on which the five hours shall have expired, the following fees : — To the leading counsel from 5 to 10 guineas. To the second, if three counsel „ 3 to 7 ,, To the third, if three counsel, or the second, if only two ,, 3 to 5 ,, The like allowances may he made where the evidence in chief is not * Sic. taken vivd voce, if the trial on * hearing shall he suhstantially prolonged beyond such period of five hours, to be so computed as aforesaid, by the cross-examination of witnesses whose affidavits or depositions have been used (ee). {eej Term refreslierS may also be aUo-wed (Levetus v. Newton, 28 Sol. J. 166). Costs pre- 49. Where a cause or matter shall not be brought on for trial or inoiureZ hearing, the costs of and consequent on the preparation and delivery of briefs shall not be allowed if the taxing officer shall be of opinion that such costs were prematurely incurred (/). (/) See Harrison v. Leutner, 16 Ch. D. 559 ; Thomas v. Falin, 21 Oh. D. 360. Costs of cause 50. Where a cause or matter which stands for trial is called on to defect on part ^^ tried, but cannot be decided by reason of a want of parties or other of plaintiff, defect on part of the plaiutiff, and is therefore struck out of the paper, down. *^'l t^6 same cause is again set down, the defendant shall be allowed the taxed costs occasioned by the first setting down, although he does not obtain the costs of the cause or matter {g). iff) This rule is from Cons. Ord. XL. i'. 21. Ooimsers 51 _ rjij^g following fees are to be allowed to counsel's clerks : — "*" ■ £ s. d. Upon a fee under 5 guineas 2 6 5 guineas and under 10 guineas 5 10 guineas and under 20 guineas 10 20 guineas and under 30 guineas 15 30 guineas and under 50 guineas 1 50 guineas and upwards, per cent 2 10 On consultations, senior's clerk 5 On consultations, junior's clerk , 2 6 On conferences 5 On retainers (where allowed) : — General retainer 10 6 Common retainer 2 6 Pees to te 52. No fee to counsel shall be allowed on taxation unless vouched vouched. -u i • • i ,rs by his signature (A). (A) This rule is not retrospective {Ferks v. Gillott, W. N. (1883), 189). Office copy of 53. In cases in which an original affidavit can be used, and to da^""^^*" ^^'''^ Order XXXVIII. r. 15. applies, it shall not be necessary to take an office copy. RULES OF THE SUPEEME COURT, 188S. 561 64. It shall not be necessary to take an office copy of an affidavit of Ord. ixy. discovery of documents, and the copy delivered by the party filing it of affidavit of may be used as against such party. discovery of 55. Where, in proceedings before the taxing officer, any party is J'""™^'^ ^• ^ -u 1 ii.ji X xt. 5i ' J i^ J Neglect, &o. guilty ot neglect or delay, or puts any other pai-ty to any unnecessary m proceedings or improper expense relative to such proceedings, the taxing officer before taxing may direct such party or his soUoitor to pay such costs as he may think proper, or deal with them under Eegulation 21. 56. Where in any cause or matter any bill of costs is directed to be On taxation taxed for the purpose of being paid or raised out of any fund or pro- out ^^a'fmd perty, the taxing officer may, if he shaU consider there is a reasonable taxiag master ground for so doing, require the solicitor to deliver or send to his f^^^-If^T^^ clients, or any of them, free of charge, a copy of such biU, or any deliver copy part thereof, previously to such officer completing the' taxation thereof, °?. ^^ *° *^® accompanied by any statement such officer may direct, and by a letter informing such client that the bUl of costs has been referred to the taxing officer, giving his name and address for taxation, and wUl be proceeded with at the time the officer shall have appointed for this purpose, and such officer may suspend the taxation for such time as he may consider reasonable. 57. The taxing officer shall have power to Hmit or extend the time Taxingmaster for any proceeding before him, and where, by any general order, or ^^g^^J^™ any order of the Court or a judge, a time is appointed for any proceed- for proceed- ing before or by a taxing officer, unless the Court or judge shall ^gs before otherwise direct, such officer shall have power from time to time to extend the time appointed upon such terms (if any) as the justice of the case may require, and although the application for the same is not made until after the expiration of the time appointed, it shall not be necessary to make a certificate or order for this purpose, unless re- quired for any special purpose. 58. Every bill of costs which shall be left for taxation shall be Endorsement endorsed with the name and address of the solicitor by whom it is so °^J^^ °* 'left, and also the name and address of the solicitor, if any, for whom he is agent, including any solicitor who is entitled or intended to par- ticipate in the costs to be so taxed. OEDEE LXVI. Notices, Peinting, Papee, Copies, Opfice Copies, MmrTEs, &c. 1. AU notices required by these rules shall be in writing, unless Notices to be expressly authorised by the Court or" a judge to be given orally. ^ writing, 2. All accounts, copies, and papers left at chambers, shall be written Accounts, upon foolscap paper, bookwise, unless the nature of the document ^am^e^*t renders it impracticable («'). be written on foolscap, (i) This is taken from Regulations as to Business, August 8, 1857, r. 17. bookwise. M. 562 EULES OF THE SUPREME COTJET, 1883. Ord. LXVI. Paper and printing. Affidavits ia print or manuscript. Piled deposi- tion to he printed. Depositions and affidavits previously used. Eules ■where pleadings, &c. are to be printed and office copies to be taken : Printing. Delivery of copy for printing. Fumisliing printed copies to other party. Payment for copies. Charge for written copy. Office copy. Production of office copy. Furnishing written copies. 3. Proceedings required to be printed shall be printed on cream wove machine drawing foolscap folio paper, 19 lbs. per mill ream, or thereabouts, in pica type leaded, with an ianer margin about three quarters of an inch wide, and an outer margin about two inches and a half wide. 4. Any affidavit may be sworn to either in print or in manuscript, or partly in print and partly in manuscript. 5. Where any written deposition of a witness has been filed, such deposition shall be printed, unless otherwise ordered. 6. The rules of Court as to printing depositions and affidavits to be used on a trial shall not apply to depositions and affidavits which have previously been used upon any proceeding without having been printed. 7. "Where, pursuant to these rules, any pleading, notice, special case, petition of right, deposition, or affidavit is to be printed, and where any printed or other office copy of any such document is to be taken, the following regulations shall be observed : (a) The party on whose behalf the deposition or affidavit is taken and filed is to print the same in the manner provided by rule 3 of this order : (b) To enable the party printing, to print any deposition or affidavit, the officer with whom it is filed shall on demand deliver to such party a copy written on draft paper on one side only : (c) The party printing shall, on demand in writing, furnish to any other party any number of printed copies, not exceeding ten, upon payment therefor, at the rate of Id. per" folio for one copy, and ^d. per folio for every other copy : (d) As between a solicitor delivering any printed copies and his client, credit shall be given by the solicitor for the whole amount payable by any other party for such printed copies : (e) The party entitled to be furnished with a print shall not be allowed any charge in respect of a written copy, unless the Court or a judge shall otherwise direct : • "(f ) Except as provided by Ord. LV. r. 48, the party by or on whose behalf any deposition, affidavit, or certificate is filed shall leave a copy with the officer with whom the same is filed, who shall examine it with the original and mark it as an office copy ; such copy shall be a copy printed as above provided where such deposition or affidavit is to be printed : (g) The party or soHoitor who has taken any printed or written ' office copy of any deposition or affidavit is to produce the same upon every proceeding to which the same relates : (h) Where any party is entitled to a copy of any deposition, affi- davit, proceeding, or document filed or prepared by or on behalf of another party, which is not required to be printed, such copy shall be furnished by the party by or on whose behalf the same has been filed or prepared : RULES OP THE SUPEEME COURT, 1883. 563 (i) The party requiring any such, copy, or his solicitor, is to make Ord. LXVI. a written application to the party by whom the copy is to be j^npiioation furnished, or his solicitor, with an undertaking to pay the for copy, how proper charges, and thereupon such copy is to be made and °^*'*^- ready to be delivered at the expiration of twenty-four hours after the receipt of such request and undertaking, or within such other time as the Court or a judge may in any case direct, and is to be furnished accordingly upon demand and payment of the proper charges : ( j) In the case of an ex parte application for an injunction or writ Ex parte ap- of ne exeat regno, the party making such application is to P™^*'9P furnish copies of the affidavits upon which it is granted upon ne exeat. payment of the proper charges immediately upon the receipt of such written request and undertaking as aforesaid, or within such time as may be specified in such request, or may have been directed by the Court or a judge : (k) It shall be stated in a note at the foot of every affidavit filed on Foot note to whose behalf it is so filed, and such note shall be printed on afada-rit. every printed copy of an affidavit or set of affidavits, and copied on every office copy and copy furnished to a party : (1) The name and address of the party or solicitor by whom aay Party fur- copy is furnished is to be indorsed thereon in like manner as "^ i^g° 1-°°^'^ upon proceedings in Court, and such party or solicitor is to sponsible for be answerable for the same being a true copy of the original, ^^ aoouraoy. or of an office copy of the original, of which it purports to be a copy, as the case may be : (m) The folios of all printed and written office copies, and copies Tolios to be delivered or furnished to a party, shall be numbered con- iiumbered, secutively ia the margin thereof, and such written copies shall be written in a neat and legible manner on the same paper as in the case of printed copies : (n) In case any party or solicitor who shall be required to furnish Refusal to any such written copy as aforesaid shall either refuse or, for *'"™^^ '^V7- twenty-four hours from the time when the application for such copy has been made, neglect to furnish the same, the person by whom such application shall be made shall be at liberty to procure an office copy from the office in which the original shall have been filed, and in such case no costs shall be payable to the solicitor so making default in respect of the copy so applied for : (o) Where, by any order of the Court (whether of appeal or other- Costs of print- wise) or a judge, any pleading, evidence or other docimient is ^| ^ '^^'^^ '^ '^^ ordered to be printed, the Court or judge may order the expense of printing to be borne and allowed, and printed copies to be furnished by and to such parties and upon such terms as shall be thought fit. [Rules 8 and 9 apply only to Admiralty actions.] 00 2 564 KULES OF THE SUPEEME COURT, 1883. Original order, when to be shown. Service other than personal, how effected. Notices from any office of Court may be Where no appearance. Personal ser- vice, how effected. Substituted service. Service on authorised solicitor. OEDEE LXVII. I. Sebvice of Oedees, &c. 1. Except in the case of an order for attaclunent, it sliaU not be necessary to the regular service of an order that the original order be shown if an office copy of it be exhibited. 2. All writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications in respect of which personal service is not requisite shall be sufficiently served if left within the prescribed hours, at the address for service of the person to be served as defined by Ords. IV. and XII., with any person resident at or belonging to such place (A). (k) Where there was no one at the address for service but a housekeeper, who refused to receive documents, and a summons was left in the letter-box, it was held that the service was bad {Jiminea v. Owen, W. N. (1883), 232). 3. Notices sent from any office of the Supreme- Court may be sent by post ; and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof, and the posting thereof shall be a sufficient service. 4.- "Where no appearance has been entered for a party, or where a party or his solicitor, as the case may be, has omitted to give an address for service as required by Ords. IV. and XII., all writs, notices, pleadings, orders, summonses, warrants, and other documents, proceedings, and written communications in respect of which personal service is not requisite may be served by filing them with the proper officer, 5. Where personal service of any writ, notice, pleading, order, summons, warrant, or other document, proceeding, or written com- munication is required by these rules or otherwise, the service shall be efEected as nearly as may be in the manner prescribed for the personal service of a writ of summons. 6. Where personal service of any writ, notice, pleading, summons, order, warrant, or other document, proceeding, or written communica- tion is required by these rules or otherwise, and it is made to appear to the Court or a judge that prompt personal service cannot be efEected, the Court or judge may make such order for substituted or other service, or for the substitution of notice for service by letter, public advertisement, or otherwise, as may be just (Z). (I) As to service abroad, see Van der Kan v. AshwoHh, W. N. (1884), 58. See also Ord. IX. i. 2, and note thereto, ante, p. 316. 7. Where a party after having sued or appeared in person has given notice in writing to the opposite party or his solicitor, through a solicitor, tha,t such solicitor is authorised to act in the cause or matter on his behalf, all writs, notices, pleadings, summonses, orders, warrants, and other documents, proceedings, and written communica- tions which ought to be delivered to or served upon the party on whose RULES OF THE SUPREME COURT, 1883. 565 • behalf the notice is given shall thereafter he delivered to or served Ord. LXVII. upon such solicitor. 8. Where a person who is not a party appears in any proceeding Service on either before the Court or in chambers, service upon the soUcitor in ^^^ °°* ^ London by whom such person appears, whether such solicitor act as principal or agent, shall be deemed good service except in matters re- quiring personal service. 9. Affidavits of service shall state when, where, and how and by Affidavit of whom, such service was effected. service. [Rules 10 — 14 apply only to Admiralty actions.] [Ord. LXVIII. appUea only to Crown, Revenue, and Matrimonial Cases.] OEDEE LXIX. Akeest of Defendant tjndeb Sect. 6 of the Debtors Act, 1869. 1. An order to arrest under the 6th section of the Debtors Act, 1869 Eorm of order, (which shall be in the Form No. 31 in Appendix K., with such varia- tions as circumstances may require), shall be made upon affidavit and ex parte ; but the defendant may at any time after arrest apply to the Court or a judge to rescind or vary the order or to be discharged from custody, or for such other relief as may be just (m). {m) As to the Debtors Act, 1869, see mte, p. 187. For this form, see infra. 2. An order to arrest shall before delivery to the sheriff be indorsed Indorsement with the plaintiff's address for service as required by Ord. IV. rr. 1 and 2. Concurrent orders may be issued for arrest in different counties. The sheriff or other officer executing the order shall be entitled to the same fees as heretofore. 3. The security to be given by the defendant may be a deposit in Mode of Court of the amount mentioned in the order, or a bond to the plaintiff ^7"^ ^^°^" by the defendant and two sufficient sureties (or with the leave of the Court or a judge either one surety or more than two), or, with the plaintiff's consent, any other form of security. The plaintiff may, within four days after receiving particulars of the names and addresses of the proposed sureties, give notice that he objects thereto, stating in the notice the particulars of his objections. In such case the sufficiency of the security shall be determined by a master who shall have power to award costs to either party. It shall be the duty of the plaintiff to obtain an appointment for that purpose, and unless he do so within four days after giving notice of objection, the security shall be deemed sufficient. 4. The money deposited, and the security, and aU proceedings Security to be thereon, shaU be subject to the order and control of the Court or a orJer°of*° judge. ' Court. 5. Unless otherwise ordered, the costs of and incidental to an order Costs. of arrest, shall be costs in the cause. 566 EULES OF THE SUPREME COURT, 1883. Ord. LXIX. Payment into Court. 6. Upon payment into Court of the amount mentioned in tlie order, a receipt Bhall be given; and upon receiving tlie tond or other security, -a certificate to that effect shall he given, signed or attested by the plaintiff's solicitor if he have one, or by the j)laintiff, if he sue in person. The delivery of such receipt, or a certificate to the sheriff or other officer executing the order, shall entitle the defendant to be discharged out of custody. Date of arrest 7. The sheriff or other officer named in an order to arrest shall, on the^OTdef'^ within two days after the arrest, indorse on the order the true date of such arrest. Non-compli- anoe with rules. Power to dis- pense with strictness of rules. Waiver of irregularfby. Application to set aside for irregularity. Objeotions must be stated. Costs. OEDEE LXX. ErPECT OF NON-COMPLLAWCE. 1. Non-compHance with any of these rules, or with any rule of prac- tice for the time being in force, shall not render any proceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or other- wise dealt with in such manner and upon such terms as the Court or judge shall think fit («). («) This rule enables the Court to do justice without regard to technicalities {Dnwson V. Beeson, 22 Ch. D. 504). It was held under the old practice that an order irregularly obtained must be pro- perly discharged, and could not be treated as a nullity. See Wilhina v. Stevens, 10 Sim. 617 ; Blake v. Blalce, 7 Beav. 514 ; Fennings v. Kumphrey, i Beav. 1 ; Chuck ^r. Cremer,2'Bh.\l3. But where a notice of motion was irregularly given it was held that the parties to whom it was given need not have appeared upon the motion, and they were not allowed their costs of doing so [Vaulmey v. Shuttleworth, 1 Ex. D. 53 ; 34 L. T. 357). As to the power to dispense with the strict requirements of the general orders, where juBtioe requires, see Smith v. Baker, 2 H. & M. 498 ; Ferrand v. Mayor of Bradford, 8 De &. M. & G. 93 ; Betts v. De Vitre, 15 W. E. 701 ; Fe Butchinson, W. N. (1867), 49 ; Ee Snell, 19 W. K. 1000 ; and the rules must not be construed too strictly in bad faith {Taliot v. Keay, 8 Eq. 610). An irregularity may be waived by tihe otlier side ; see KettUwell v. Barstow, 10 Eq. 210 ; but an application to restore a suit which was dismissed after an order to speed, was refused {Burkinshaw v. Wilson, 12 Eq. 103). 2. No application to set aside any proceeding for irregularity shall be allowed unless made within reasonable time, nor i£ the party applying has taken any fresh step after knowledge of the irregularity. 3. Where an application is made to set aside proceedings for irre- gularity, the several objections intended to be insisted upon shall be stated in the summons or notice of motion. 4. When a summons is taken out to set aside any process or pro- ceeding for irregularity with costs, and the summons is dismissed generally without any special direction as to costs, it is to be under- stood as dismissed with costs. EULES OF THE SUPREME COURT, 1883. 567 OEDEE LXXI. Inteepeetation of Teems. 1. The provisions of the lOOth seotiou of the principal Act shall Jud. Act, apply to these rules. ^^'^^' ^- ^'"'• In the construction of these rules, unless there is anything in the Definitions. subject or context repugnant thereto, the several words hereinafter mentioned or referred to shall have or include the meanings fol- lowing : — "Originating summons" means a summons hy which proceedings "Originating are commenced without writ : summons:" " Person " includes a body corporate or politic : " Person:" '.' Probate actions " include actions and other matters relating to the <■ Probata grant or recall of probate or of letters of administration other actions:" than common form business : " Proper officer " means an officer to be ascertained as follows : — "Proper (a) Where any duty to be discharged under the Acts or these °^°^'-' rules is a duty which has heretofore been discharged by any officer, such officer shall continue to be the proper officer to discharge the same : (b) Where any new duty is under the Acts or these rules to be discharged, the proper officer to discharge the same shall be such officer as may from time to time be directed to discharge the same, in the case of an officer of the Supreme Court, or the High Court of Justice, or the Court of Appeal, not attached to any Division, by the Lord Chancellor, and in the case of an officer attached to any Division, by the President of the Division, and in the case of an officer attached to any judge, by such judge : " Master " means a Master of the Supreme Court of Judicature : " Master:" "Eeceiver" includes consignee or manager appointed by or under "Receiver:" an order of the Court : "Taxing Officer" means taxing master in the Chancery Division, "Taxing and the master or person whose duty it is to tax the costs to be officer:" taxed in the other divisions respectively : "The Principal Act" means the Supreme Court of Judicature "Principal Act, 1873 : ^0*=" " The Acts " means the Supreme Court of Judicature Acts, 1873 to "Tlie Acts:" 1879, the Appellate Jurisdiction Act, 1876, and the Supreme Court of Judicature Act, 1881 : "Central Office" means the Central Office of the Supreme Court "Central of Judicature. °®°'-" 2. In. these rules, unless repugnant to the context, the singular Singular to number shall include the plural, and the plural number shall include inoludeplural, . and vice versd. the smgular. 568 RULES or THE SUPREME COUET, 1883. ORDEE LXXn. Annulled orders not revived by rules. Former practice. Vacancy in office at Lord Chancellor or Lord Chief Justice. General Etji-es. 1. No order or rule annulled by any former order shall be revived by any of tbese rules, unless expressly so declared. 2. Where no other provision is made by the Acts or these rules, the present procedure and practice remain in force. 3. During the period of any vacancy in the office of Lord Chancellor, and when the great seal is not in commission, these rules shall operate as i£ wherever the words '"Lord Chancellor" are used, the words "Lord Chief Justice of England" were used ; and during the period of any vacancy in the office of Lord Chief Justice of England, as if wherever the words "Lord Chief Justice of England" are used, the words "Lord Chancellor" were used. FOEMS OP THE SUPREME COURT, 1883. 569 APPENDIX A. ^Rt PAET I. FORMS OF WRITS OF SUMMOKS, &o. No. 1. General Form of Writ of Summons. 18 . '[^Here put the letter and number.'] In the High Coui-t of Justice. Between A. B. Plaintiff, Division. and 0. D. and E. F. Defendants. Victoria, by the Grraoe of God, &o. To 0. D. of in the county of We command you, that within eight days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suft of A. B. ; and take notice, ttiat in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, RoundeU, Earl of Selbome, Lord High Chancellor of Great Britain, the day of in the year of our Lord one thousand eight hundred and Memorandum to be subscribed on the writ. N.B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards. The defendant [or defendants'] may appear hereto by entering an appearance {or appearances] either personally or by solicitor at the Central OfSoe, Royal Courts of Justice, London. Indorsements to he made on the writ before issue thereof. The plaintiff's claim is for, &c. This writ was issued by the said plaintiff, who resides at , or, this writ was issued by E. F., of , whose address for service is , soUoitor for the said plaintiff, who resides at , or, this writ was issued by G. H., of , whose address for service is , agent for , of , solicitor for the said plaintiff, who resides at [mention the city, town, or parish, and also the name of the street and number of the house of the plaintiff' s residence, if any]. Indorsement to be made on the writ after service thereof. This writ was served by me at on the defendant on the day of 18 . Indorsed the day of 18 . (Signed) No. 2. Specially Indorsed Writ, Order III., Rule 6. 18 . [Sere put the letter and number.] In the High Court of Justice. Between Plaintiff, Division. and Defendant. Victoria, by the Grace of God, &c., to of in the county of We command you, that within eight days after the service of this writ on you, inclusive of the day of such service, you cause an appearance to be entered for you in an action at the suit of . And take notiae, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, RoundeU, Earl of Selbome, Lord High Chancellor of Great Britain, the day of in the year of our Lord one thousand eight hundred and . 570 FOKMS OP THE SUPREME COURT, 1883. App. A. N.B. — This ■writ is to be served within twelve calendar months from the date Pt. I. thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards. Appearance is to be entered at the Central OfEce, Royal Courts of Justice, London. Statement of Claim : — The plaintiff's claim is Place of trial Particulars : — (Signed) And the sum of £ , [or such sum as may be allowed on taxation,] for costs. If the amount claimed is paid to the plaintm or h solicitor or agent within four days from the service hereof, further proceedings wiU be stayed. This writ was issued by the said plaintiff, who resides at , [or] this writ was issued by E. E., of , whose address for service is , solicitor for the said plaintifl, who resides at , [or] this writ was issued by Gr. H., of , whose address for service is , agent for , of , solicitor for the said plaintiff, who resides at This writ was served by me at on the defendant on the day of 18 . Indorsed the _ day of 18 . (Signed) (Address) No. 3. Writ for Issue from District Registry. 18 . [Sere put the Utter and numher.] In the High Court of Justice. Between Plaintiff, Division. and Defendant. [MANCBESTBB) DiSTEIOT ReoMIEY. Victoria, by the Grrace of God, &c., to of in the of ■We_ command you, that within eight days after the service of this writ on you, inclusive of the day of such service, you cause an appearance to be entered for you in an action at the suit of . And take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, RoundeU, Earl of Selbome, Lord High Chancellor of Great Britain, the day of in the year of our Lord one thous_and eight hundred and N.B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, vrithin six calendar months from the date of the last renewal, and not afterwards. A defendant who resides or carries on business within the above-named district * Insert ad- must enter appearance at the ofSce of the registrar of that district.* dress of ofSoe. -^ defendant who neither resides nor carries on business within the said district may enter appearance either at the office of the said registrar or at the Central Office, Royal Courts of Justice, London. The plaintdfi's claim is This writ, &o. N.B. — The aMreesfor service must he within the district. This writ was served, &o. POEMS OF THE SUPBEME COUHT, 1883. 571 No. 4. App. A. Pt. I. Specially Indorsed Writ for Issue from District Registry. 18 . [^Sere put the letter and number.'] la the High Court of Justice. Between Plaintiff, Division. and Defendant. {MANOnESTER) DiSTEIOT EbGISTEY. Victoria, by the Grace of God, &o., to of in the of We command you, that within eight days after the service of this writ on you, inclusive of the day of such service, you cause an appearance to he entered for you in an action at the suit of . And take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, &c. N.B. — This writ is to he served within twelve calendar months from the date thereof, or, if renewed, -within six calendar months from the date of the last renewal, including the day of such date and not afterwards. A defendant who resides or carries on business within the above-named district must enter appearance at ^e office of the registrar of that district.* * Insert ad- A defendant who neither resides nor carries on business ■within the said district dress of office, may enter appearance either at the office of the said registrar or at the Central Office, Boyal Courts of Justice, London. Statement of Claim : — The plaintiff's claim is Particulars : — Place of trial (Signed) And the sum of & , [or such sum as may be allowed on taxation,] for costs. If the amount claimed is paid to the plaintiff or h solicitor or agent within four days from the service hereof, further proceedings will be stayed. This writ, &o. N.B. — The address for service must be within the district. This -writ was served, &o. No. 5. Writ for Service out of the Jurisdiction, or where Notice in Lieu of Service is to he given out of the Jurisdiction. 18 . [Sere put the Utter and number.'] In the High Court of Justice. Between A. B. Plaintiff, Division. and C. D. and E. F. Defendants. Victoria, by the Grace of God, &c. To C. D. of We command you, CD., that within r^r« insert the number of days directed by the Court or judge ordering the service or notice'] edixn the service of this writ [or notice of this writ as the case may be] on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the Division of our High Court of Justice in an action at the suit of A. B. ; and take notice, that in default of yom- so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, &c. Memoranda and Indorsement as in Form No. 1. Indorsement to be made on the writ before the issue thereof. N.B. — This -writ is to be used where the defendant or all the defendants or one or more defendant or defendants is or are out of the jurisdiction. When the defendant to be served is not a British subject, and is not in British dominion, notice of the ■writ, and not the writ itself, is to be served upon him. 572 FORMS OF THE SUPREME COURT, 1883. App. A. Pt. I. * Insert No. of days directed by Court or judge. t H notice of the writ is to be served, in- sert here "of notice." * Insert No. of days limited for appear- ance. t If notice to be served, in- sert here ' ' of notice." No. 6. Specially Indorsed Writ for Service out of the Jurisdiction. [Beading as in Form 1.] Victoria, by the Grace of God, &o., to of in the of . We command you, that -within* days after service t of this -writ on you, iu- clusive of the day of such service, you cause an appearance to be entered for you in an action at the suit of And take notice, that in default of your so doing the plaintiff may proceed there- in, and judgment may be given in your absence. Witness, &o. N.B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the lastjenewal, including the day of such date, and not afterwards. Appearance is to be entered at the Central OfEce, Royal Courts of Justice, London. Statement of Claim : — The plaintiff's claim is : — Paorticulars : — Place of trial (Signed) And £ [or such sum as may be allowed on taxation] for costs. If the amount claimed is paid to the plaintiff or h solicitor or agent within * days from service t hereof, further proceedings will be stayed. This writ was issued, &o. This writ [or notice of this writ] was served, &o. N.B. — This writ is to be used where the defendant, or all the defendants, or one or more defendant or defendants, is or are out of the jurisdiction. When the defendant to be served is not a British subject, and is not in British dominions, notice of the writ and not the writ itself is to be served upon him. * Insert No. of days directed by Court or judge. t If notice of writ is to be served, insert here, "notice of." X Insert ad- dress of office. N'o. 7. Writ from District Registry for Service out of the Jurisdiction. [Seading as in Form 3.] Victoria, by the Grace of God, &o., to of We command you, that within* days after service oft this writ on you, inclusive of the day of such service, you cause an appearance to be entered for you in an action at the suit of And take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in yo^ir absence. Witness, &c. N.B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards. A defendant who resides or carries on business within the above-named district, must enter appearance at the office of the registrar of that district.! A defendant who neither resides nor carries on business within the said district may enter appearance either at the office of the said registrar or at the central office, Royal Courts of Justice, London. The plaintiff's claim is This writ was issued by, &o. N.B. — The address for service must he within the district. This writ [or notice of this writ] was served, &o. N.B. — This writ is to be used where the defendant, or all the defendants, or one or more defendant or defendants, is or are out of the jurisdiction. Where the defendant to be served is not a British subject, and is not in British dominions, notice of the writ and not the writ itself is to be served upon him. FORMS OP THE SUPEEME COURT, 1883. 573 No. 8. Specially Indorsed Writ from District Registry for Service out of the Jurisdiction. [Seading as in Form 3.] Victoria, by the Grace of Grod, &c. to of in the of "We command you, that -within* days after service oft this writ on you, inclusive of the day of such service, you cause an appearance to he entered for you in an action at the suit of And take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, &o. N.B. — This ■writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the 'day of such date, and not afterwards. A defendant who resides or carries on business within the above-named district must enter appearance at the office of the registrar of that district.^ A defendant who neither resides nor carries on business within the said district may enter appearance either at the office of the said registrar or at the central office, Royal Courts of Justice, London. App. A. Pt. I. * Insert No. of days directed by Court or judge. t If notice of writ is to be served, insert here, "notice of." X Insert ad- dress of office. The plaintifl's claim is Place of Trial Statement of Claim : Particulars : — (Signed) and £ , [or such sum as may be allowed on taxation] for costs. If the amount claimed be paid to the plaintijffi or h solicitor or agent within* days from servioet hereof, further proceedings will be stayed. This writ was issued by, &c. N.B. — The address for service must be within the district. This writ [or notice of this writ] was served, &c. N.B. — This writ is to be used where the defendant or aU the defendants, or one or more defendant or defendants, is or are out of the jurisdiction. Where the person to be served is not a British subject, and is not in British dominions, notice of the writ and not the writ itself is to be served upon him. * Insert No. of days limited for appearance. , t If notice of writ is to be served, insert here, "of notice." No. 9. Notice of Writ in lieu of Service to he given out of the Jurisdiction. [Heading as in Form 1.] To G. H. of Take notice, that A, B., of has commenced an action against you, G. H., in the Division of Her Majesty's High Court of Justice in England, by writ of that Court, dated the day of , a.d. 18 ; which writ is indorsed as follows [copy in full the indorsements'], and you are required within days after the receipt of this notice, inclusive of the day of such receipt, to defend the said action, by causing an appearance to be entered for you in the said Court to the said action ; and in default of your so doing, the said A. B. may proceed therein, and judgment may be given in your absence. Tou may appear to the said writ by entering an appearance personally or by your solicitor at the Central Office, Royal Courts of Justice, London. (Signed) A. B. of &o. or X. Y. of &c. In the High Court of Justice. Solicitor for A. B. Division. 574 FORMS OF THE SUPREME COURT, 1883. -^PP- A. No. 10. Pt. I. ' Notice of Writ in lieu of Service to bergiven out of the Jurisdiction. {Seadmg as in No. 3.] To , of Take notice, that , of , has commenced an action against you in the Division of Her Majesty's High Court of Justice in England, hy -writ of that Court, dated the day of , 18 , which writ is indorsed as follows : — And you are hereby required withia days after the receipt of this notice, in- clusive of the day of such receipt, to defend this action by causing an appearance to be entered for you thereto, and in default of your so doing the said may proceed therein, and judgment may be given in your absence. If you reside or carry on busiaess within the above-named district, appearance is * Insert ad- to be entered at the office of the registrar for that district.* dress of office. If you do not either reside or carry on business within that district, appearance is to be entered either at the office of the said registrar or at the Centoal Office, Royal Courts of Justice, Loudon. (Signed) This notice was served by, &o. N.B. — This notice is to be used where the person to be served is not a British subject, and is not in British dominions. No. 18. Form of Memorandum for Renewed Writ. [Seadittg as in Form 1.] Seal renewed writ of summons in this action indorsed as follows :- \_Copy original writ and the indorsements.'] No. 19. Certificate of Solicitor as to Assignment of Cause or Matter. \Seading as in Form 1.] I, A. B., solicitor for the above-named hereby certify that the writ fsum- mons or petition] annexed hereto relates to the administration of the same trust, \or, the winding-up of the same company,] as or is so connected with, the cause or matter entitled [insert title] and assigned to the Hon. Mr. Justice , as to be conveniently dealt with by the same judge. rORMS OF THE SUPREME COURT, 1883. 575 PART II. FORMS OF ENTRY OF APPEARANCE. No. 1. Memorandum of Appearance in General. App. A. Pt. II. 18 . No. Between Plaintiff, and Defendant. In the High Court of Justice. Diyision. Enter an appearance for in this action. Dated the day of 18 . (Signed) of* Agent for of No. 2. Ntitice of Entry of Appearance. [Heading as in Form 1.] Take notice, that have this day entered an appearance at the central office, Royal Courts of Justice \ar at the office of the registrar of the district registry] for the defendant to the writ of summons in this action. \If statement of claim is required, add'\ ''The said defendant require delivery of a statement of claim. 18 . * If this address he beyond three mfles from the Royal Courts of Justice, an address for service within three miles thereof must he given. Dated the day of (Signed) of Agent for To Solicitor for the defendant . No. 3. Notice limiting Defence. [Seading as in Form 1.] Take notice, that the [above-named] defendant [A. B.] limits his defence to part only of the property mentioned in the writ of summons, namely, to the close, called " The Big Keld." Dated the day of 18 . (Signed) of Agent for of To 'W pssth The Plaintifl's Solicitors. Solicitors for the ahove-named defendant. No. 4. Entry of Appearance limiting Defence. [Seading as in Form 1.] Enter an appearance for the defendant in this action. The said defendant limits his defence to part only of the property mentioned in the writ of summons, namely, to the close called " The Big Field." The address of is Dated the day of (Signed) of* Agent for of 18 * If this address be beyond three mUes from the Royal Courts of Justice, an address for service within three miles thereof must be given. 676 PORMS OF THE SUPREME COURT, 1883. App. A. Pt. II. * If this address be beyond three miles from the Royal Courts of Justice, an address for service ■within three miles thereof must be given. *If this address be beyond three miles from the Royal Courts of Justice, an address for service within three miles thereof must be given. * If this address be beyond three mues from the Royal Courts of Justice, an address for service within three miles thereof must be given. No. 6. Entry of Appearance, Order XVI., Rule 49. [Seadinff as in Form 1.] Enter an appearance for to the notice issued in this action on the day of 18 by the defendant under the Rules of the Supreme Court, 1883, Ord. XVI. r. 49. ' Dated the day of 18 . (Signed) of* Agent for of No. 6. Entry of Appearance, Order XVII., Rule 5. \JSeading as in Form 1.] Enter an appearance for , who has been served with an order dated the day of to carry on and prosecute the proceedings in this action. Dated the day of (Signed) of* Agent for of 18 No. 7. Entry of Appearance to Counter Claim. Enter an appearance for in this action. Dated the day of (Signed) of* Agent for of [^Heading as in Form 1.] to the counter-claim of the above-named defendant IS . ,of No. 8. Affidavit for Entry of Appearance as Guardian. [Seading as in Form 1.] , make oath and say as^ follows : — I. A. B., of , is a fit and proper person to act as guardian ad litem of the above-named infant defendant, and has no interest in the matters in question in this action [maWer] adverse to that of the said infant, and the consent of the said A. B., to act as such guardian is hereto annexed. Sworn, &o. [lb this affidavit shall he annexed the document signed by such gttardian in testimony of his consent to act.'] FOBMS OF THE SUPREME COURT, 1883. 577 App. A. PAET in. Ft- ni. Sect. 1. GENERAL INDORSEMENTS ON WiaiTS OF SUMMONS. ..Section I. ' In Matters assigned by the 34 {To he filled up in the manner exemplified in the following form^.\ (Signed) Delivered FOEMS OF THE STJPEEME COUET, 1883. 597 Counter-claim. . App. D. The defendant says that: — Sect. I. _ I {To be filled up in the maimer exemplifiedin the following forms.) 2 The defendant counter-claims (Signed) Del" Jelivered Defence and Counter-claim. The defendant says : — 2; } [To be filled up.) Counter-claim. The defendant repeats paragraph 2 of his defence, and says that: — I" I (To be filled up.) The defendant counter-claims. (Signed) Delivered Section II. To Actions specially assigned to the Chancery Division by Section 34 of the Principal Act. Appendix C, Sect. II. 1. The defendants do not admit the plaintifi's claim. m -„+;(,_. t^v The defendant A. B. admits the pWifE's claim, hut not assets. administra- [or] The defendant C. D. admits assets, but not the plaintiff's claim. 2. The claim is barred by the Statute of Limitations. [State which.'] 3. Payment was made by deceased. 4. The claim is fraudulent in the following particulars : [Set out particulars."] 5. The defendant is entitled to a set-ofl, of which the following are the par- ticulars : — [Set out particulars.] 6. The claim was released by deed dated the of 7. Notice was given and assets distributed \mder Statute 22 & 23 Vict. c. 35, s. 29. Particulars of the Notice. Advertisements in the Times of January 1, 1880. ,, New York Herald, February, 1881. ,, Bombay Gazette of January 25, 1881. [givinif the titles of the newspapers and the dates of those in which the advertise^ ment appeared.] 8. The personal estate of the testator is sufficient to pay the plaintiff his debt if established. 9. The defendant is not heir-at-law or devisee of the deceased. (Signed) Delivered No. 1. 1. The defendant did not execute the mortgage. 2. The mortgage was not assigned to the plaintiff {if more than one assignment is To actions for alleged rntj which is denied). . t ■ : .■ foreclosure by 3. The debt is barred by the Statute of Limitations. mortgaffeei 4. Payments have been made, viz. : — 10 July, 1874, 1,000?. 18 October, 1875, 500;. 598 FORMS OF THE SUPREME COURT, 1883. App. D. 6. The plaintiff took possession on the of and has received the rents Sect. n. ever since. 6. The plaintiff released the debt by deed, dated 1 June, 1882. 7. The defendant conveyed all his interest to A. B. by deed, dated 25 November, 1880. The defendant claims : — 1. Account. 2. Re-conveyanoe. (Signed) Delivered To same by alleged second incumbrancer who claims priority. No. 2. To actions for redemption. 1. 2. 3. 4. 5. > {As in precedinff Form.) To actions for specific per- formance. 7. By a deed dated 1st June, 1880, the mortgagor A. B. mortgaged the property in question to the defendant to secure 5,000?. and interest at 5 per cent, per annum. The defendant claims — 1. A declaration of priority and foreclosure (and a receiver). (Signed) Delivered [If the plaintiff claims payment of the mortgage debt, the defendant must, if he disputes his liability, show the grounds on which he does so as in other cases of debt ; or he can claim indemnity against the owner of the equity of redemption under Ordm-Xri., iJe* 48.] 1 . The plaintiff's right to redeem is barred by the Statute of Limitations. — [State whieh.'l 2. The plaintiff assigned all interest in the property to A. B. 3. The defendant by deed, dated the day of assigned all his interest in the mortgage debt and property comprised in the mortgage to A. B. 4. The defendant never took possession of the mortgaged property, or received the rents thereof. [If the defendant admits possession for a time only, he should state the time, and deny possession beyond what he admits.'] (Signed) Delivered 1. The defendant did not enter into the agreement. 2. A. B. was not the agent of the defendant (if alleged by plaintiff). 3. The plaintifB has not performed the following conditions. — [Conditions.) 4. The defendants did not. — [Alleged acts of part performance.'] 5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matters : — [State why.] 6. The Statute of Frauds has not been complied with. 7. The agreement is uncertain in the following respects. — [State them.] 8. [of] The defendant has been guilty of delay ; 9. o/ The defendant has been guilty of fraud [or misrepresentation] ; 10. V] The agreement is unfair ; 1 1 . 'or] The agreement was entered into by mistake. The following are particulars of (8), (9), (10), (11), [or as the case may be]. 12. The agreement was rescinded under Conditions of Sale, No. 11, {or, by mutvial agreement) . (Signed) Delivered [In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the agreement or the alleged breaches, or show whatever other ground of defence he intends to rely on, e. g.. Statute of Limitations, accord and satisfaction, release, fraud, ^c] FORMS OF THE SUPEEME COURT, 1883. 599 App. D. Sectioit IV. S^°*'- 1^- To Actions included in Order III., Rule 6, Classes A., £., C, D., E., and F. 1. The defendant did not accept the bill. To actions on 2. The defendant did not make the note. ^^^ q£ gj^. 3. The defendant did not di-a-w the check. pT,nT, FORMS OF THE SUPREME COURT, 188a. 617 from the day of and have that money, together with such interest as App. H. aforesaid, hefore us in oiir said Court immediately after the execution hereof, to be rendered to the said A. B., for that our sheriff of returned to us in our said Court on [or "at a day now past"] that the said C. D. had not any goods or chattels or any lay fee in his baUiwiok whereof he could cause to be made the said I. and interest aforesaid or any part thereof, and that the said C. D. was a beneficed cleric (to wit) rector of rectory [or vicar of the vicarage] and parish church of , in the said sheriff's county, and within your diocese [as in the return]. And in what manner, &c. ; And have you there then this writ. Witness, &o.. No. 6. Wril of Fieri Facias to the Archbishop de bonis Ecclesiasticis during the vacancy of a Bishop's See, Victoria, by the grace of God, &c. To the Right Reverend Father in God [/o/iM] by Divine Providence Lord Archbishop of Canterbury, Primate of all England and Metropolitan, greeting : We command you, that of the ecclesiastical goods of C. D., clerk in the diocese of which is within the province of Canterbury, as ordinary of that church, the episoe^al see of now being vacant, you cause to be made [&c., conclude as in the preceding forinj. No. 7. Writ of Sequestrari Facias de bonis Ecclesiasticis. [Seading as in Form 1.] Victoria, by the grace of God, &o. To the Right Reverend Father in God [John'] by Divine permission Lord Bishop of greeting : Whereas we lately commanded our sheriff of that he should omit not by reason of any liberty of his coimty, but that he should enter the same, and cause [to be made, ifaftei- the return to a fieri facias, or delivered, if after the return to an elegit, §c., and in either case recite the former writ]. And whereupon our said sheriff of on [o»' " at a day past "] returned to us in the Division of our said Court of Justice, that the said C. D.. was a beneficed clerk ; that is to say, rector of the rectory [or vicar of the vicarage] and parish church of in the county of , and within your diocese, and that he had not any goods or chattels, or any lay fee in his baUiwiok [here folhio the words of the sheriff's return]. Therefore, we command you, that you enter into the said rectory [or vicarage] and parish church of , and take and sequester the same into your possession, and that you hold the same in your possession untU you shall have levied the said I. and interest aforesaid, of the rents, tithes, rent- charges in lieu of tithes, oblations, obventions, fruits, issues, and profits thereof, and other ecclesiastical goods in your diocese of and belonging to the said rectory [or vicarage] and parish church of and to the said C. D. as rector [or vicar] thereof to be rendered to the said A. B., and in what manner, &c. And have you there then this writ. Witness, &c. No. 8. Writ of Possession. [Seading as in Farm 1.] Victoria, by the grace of God, &c. To the sheriff of , greeting : Whereas lately in our High Court of Justice, by a judgment of the Division of the same Court [A. B. recovered] or [E. F. was ordered to deliver to A. B.] possession of all that with the appurtenances in your bailiwick : Therefore, we command you that you omit not by reason of any liberty of your county, but that yau enter the same, and without delay you cause the said A. B. to have possession of the said land and premises with the appurtenances. And in what manner, &o. And have you there then this writ. Witness, &c. 618 FOEMS OF THE SUPREME COUET, 1883. App. H. No. 10. Writ of Delivery. [Heading as in Form 1.] ■Victoria, by the grace of God, &c. To the sheriff of greeting: We com- mand you, that ■wiflxout delay you cause the following chattels, that is to say [here enumerate the chattels recovered by the judgment or order for the return of which execution has been ordered to issue'], to be returned to A. B., which the said A. B. lately in our High Court of Justice recovered against C. D. [or C. D. was ordered to deliver to the said A. B.] in an action in tiie Division of our said Court.* And we further comanand you, that if the said chattels cannot be found in your bailiwick, you distrain the said C. D. by all his lands and chattels in your bailiwick, so that neither the said C. D. nor any one for him do lay hands on the same until the said C. D. render to the said A. B. the said chattels.f And in what manner, &c. And have you there then this writ. Witness, &o. No. 11. The like, hut instead of a distress vntil the chattel is returned, command- ing the Sheriff to levy on defendant's goods the assessed value of it. [Proceed as in the preceding form until the*, and then thus:"} And we further com- mand you that if the said chattels cannot be found in your bailiwick, of the goods and chattels of the said C. D. in your bailiwick you cause to £ [the assessed valtie of the chattels^.f And in what manner, &c. And have you there then this writ. Witness, &o. [If in either of the preceding fonns it is wished to include dmnages, costs, and interest, proceed to the t amd continue thus.'] And we further command you that of the goods and chattels of the said C. D. in your bailiwick, you cause to be made the sum of £ [damages]. And also interest thereon at the rate of £4 per centum per annum, from iJie day of which said sum of money and interest were in the said action by the judgment therein [or by order dated the day of ] adjudged [or ordered] to be paid by the said C. D. to A. B. together with certain costs in the said judgment [or order] men- tioned, and which costs have been taxed and allowed by one of the taxing officers of our said Court at the sum of £ as appears by the certificate of the said taxing officer dated the day of . And that of the goods and chattels of the said C. D. in yoxu: bailividok you further cause to be made the said sum of £ [costs], together with interest thereon at the rate of £4 per centum per annum from the day of and that you have that money and interest before us in our said Court immediately after the execution hereof to be paid to the said A. B. in pursuance of the said judgment [or order]. And in what manner, &o. And have you there this writ. Witness, &c. No. 12. Writ of Attachment. [Seading as in Form 1.] Victoria, by the grace of God, &c. To the sheriff of greeting. We command you to attach C. D. so as to have him before us in the Divi- sion of our High Court of Justice wheresoever the said Court shall then be, there to answer to us, as well touching a contempt which he it is alleged hath committed agaiast us, as also such other matters as shaJl be then and there laid to his charge, and further to perform and abide such order as our said Court shall make iu this behalf, and hereof fail not, and bring this writ with vou. Witness, &c. ' POEMS 01" THE SUPREME COURT, 1883. 619 No. 13. App. H. Writ of Sequestration. {Sending as in Form 1 .] Victoria, by the grace of God, &c. To [names of not less than four Commissioners'] greeting. Whereas lately in the Division of our High Court of Justice in a certain action there depending, wherein A. B. is plaintifE and CD. and others are defendants [or, in a certain matter then depending, intituled " In Hie matter of E. E.," as the case may 4e] by a judgment [or order, as the case may ie] of our said Court made in the said action [or matter], and bearing date the day of , 187 , it was ordered that the said 0. D. should [pay into Court to the credit of the said action the sum of I., or, as the case may 4e]. Know ye, therefore, that we, in con- fidence of your prudence and fidelity, have given, and by these presents do give to you, or any three or two of you, full power and authority to enter upon all the messuages, lands, tenements, and real estate whatsoever of the said C. D., and to collect, receive, and sequester into your hands not only all the rents and profits of his said messuages, lands, tenements, and real estate, but also all his goods, chattels, and personal estates whatsoever ; and therefore we command you, any three or two of you, that you do at certain proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements, and real estates of the said C. D., and that you do collect, tak^ and get into your hands not only the rents and profits of his said real estate, but also all his goods, chattels, and personal estate, and de- tain and keep the same under sequestration in your hands until the said CD. shall [pay into Court to the credit of the said action the sum of I., or, as the case may 4e,Tclear his contempt, and our said Court make other order to the contrary. Witness, &c. No. 14. Distringas against Ex-Sheriff. [Seading as in Form 1.] Victoria, by the grace of God, &o., to the sheriff of greeting. We command you that you distrain late sheriff of your county aforesaid by all his land and chattels in your bailiwick, so that neither he nor any one by him do lay lumds on the same until you shall have another command from us in that be- half, and that you answer to us for the issues of the same, so that the said expose for sale and sell or cause to be sold for the best price that can be gotten for the same, those goods and chattels which were of in your bailiwick, to the value of I.,* the sum of i!. which lately before us in our High Court "the of Justice in a certain action wherein plaintiff and defendant , by amount o*) at of our said Court bearing date the day of , was J to be or part of. paid by the said to the said and of the sum of I., the amount at \ " judg- which the costs in the saidt mentioned have been taxed and allowed, and of ment" or interest on the said sam. of I. at the rate of il. per centum per annum from the " order." day of , and on the said simi of ?. at the same rate from the fadiudsed" day of , which goods and chattels he lately took by virtue of our writ, and + u2.&e?eS. " which remain in his hands for want of buyers, as the said late sheriff hath lately "^ oruerea. returned to us in our said Court. And have the money arising from such sale before us in our said Court immediately after the execution hereof, to be paid to the said , and have there then this writ. Witness, &o. This writ was issued by, &c. The defendant is a and resides at in your bailiwick. 620 FORMS OF THE SUPREME COURT, 1883. App. J. ' APPENDIX J. FORMS OF SUBPCEKA, &o. No. 1. Subpoena Ad Testificandum, {General Form). 18 . ISere put the letter and number.'] In the High Court of Justice. Between Plaintiff, Division. and Defendant. Victoria, by the grace of God, &o. to [the names of three witnesses way he inserted'] greeting : We command you to attend hefore at on day the day of 18 , at the hour of in the noon, and so from day to day imtil the ahove cause is tried, to give evidence on behalf of the plaintiff \pr defendant] . Witness, &c. No. 2. Habeas Corpus ad Testificandum. \Heading as in Form 1.] Victoria, by the grace of God, &c. to the [Sscpej- of our prison at'] We command you that you bring , vrho it is said is detained in our prison under your custody , before at on day the day of at the hour of in the noon, and so from day to day until the above action is tried, to give evidence on behalf of the . And that immediately after the said shall have so gifven his evidence you safely conduct him to the prison from vrhioh he shall have been brought. Witness, &o. This -writ was issued, &c. No. 3. Subpoena Duces Tecum ( General Form). [Heading as in Form 1.] Victoria, by the grace of God, &o. to [the names of three witnesses may be inserted] greeting s We command yon to attend braore at on day the day of 18 , at the hour of in the noon, and so from day to day until the above cause is tried, to give evidence on behalf of the and also to bring with you and produce at the time and place aforesaid [specify documents to be prodteced]. Witness, &o. No. 4. Subpoena Ad Testificandum at Assizes. [Heading as in Form 1.] Victoria, hy the grace of God, &o. to [the names of three witnesses may be inserted] greeting : We command you to attend bef ote our justices assigned to take the assizes in and for the county of to be holden at on day the day of 18 , at the hour of in the noon, and so from day to day during the said assizes until the above cause is tried, to give evidence on bdialf of the < Witness, &c. FORMS OP THE SUPREME COURT, 1883. 621 No. 5. -A^PP- J- Suhpoena Duces Tecum at Assizes. [Heading as in Fonn 1.] Victoria, by the grace of Grod, &o. to [the names of three witnesses may le inserted] greeting: We command you to attend before our justices assigned to take the assizes in and for the county of to be holden at on day the day of 18 , at the hour of in the noon, and so from day to day during the said assizes, untU the above cause is tried, to give evidence on behalf of the , and also to bring with you and produce at the time and place aforesaid [specify documents to be produced^. Witness, &c. No. 6. Suhpcena Ad Testificandum at Sittings of High Court, » [Heading as in Fotfn 1 .] Victoria, by the grace of God, &c., to [the names of three witnesses may he inserted] greeting : We command you to attend at the sittings of the Division of our High Court of Justice, for to be holden at on day the day of 18 , at the hour of ia the noon, and so from day to day during the said sittings, until the above cause is tried, to give evidence on behalf of the Witness, &o. No. 7. Suhpcena Duces Tecum at Sittings of High Court. [Heading as in Form 1 .] Victoria, by the grace of God, &o.i.to [the names of three witnesses may he inserted]. We command you to attend at the sittings of the Division of our High Court of Justice for , to be holden at on day the day of 18 , at the hour of o'clock in the noon, and so from day to day until the above cause is tried, to give evidence on behalf of the and also to bring with you and produce at the time and place aforesaid [specify documents to be produced]. Witness, &c. No. 8. Writ of Inquiry for Assessment of Damages. [Heading as in Form 1 .] Victoria, by the grace of God, &c., to the sheriflp of gfreeting. Whereas it has been adjudged that the pla;intiff recover against the defendant damages to be assessed. Therefore we command you, that by the oaths of twelve good and lawful men of your bailiwick you inquire what damages the plaintiff is entitled to recover under the said judgment, and that forthwith thereafter you send the inquisition which you shall take thereupon to our said Court, under your seal, and the seals of those by whose oaths you take the inquisition, together with this writ. Witness, &o. This writ was issued by, &o. The defendant is a and reside at in your bailiwick. 622 FORMS OF THE SUPBEME COURT, 1883. App. J. No. 9. Certiorari to County Court. [Seading as in Form 1.] Victoria, ty the grace of God, &o., to the judge of the County Court holden at greeting. We, ■wming for certain causes to be certified of a plaint levied in our Court before you against at the suit of command you that you send to us forthwith in the Division of ovx High Court of Justice the said plaint with aH things touching the same, as fully and entirely as the same remain in our said Court before you, by whatsoever names the parties may be called therein, together with this writ, that we may further cause to be done thereupon what of right we shall see fit to be done. "Witness, &c. This writ was issued by, &c. No. 10. Certiorari {General). {Seadimg as in Form 1.] Victoria, by the grace of God, &o., to the greeting. We, willing for certain causes to be certified of command you that you send to us in our High Court of Justice on the day of the aforesaid, with all things touching the same, as fully and entirely as they remain in , together with this writ, that we may further cause to be done thereupon what of right we shall see fit to be done. Witness, &o. This writ was issued by, &c. No. 11. Prohibition. {Seeding as in Form 1.] Victoria, by the grace of God, &c., to the [judge of the County Court holden at] and to [name of plaintiff'] of greeting. Whereas we have been given to understand that you the said have [entered a plaint against] 0. D. in the said Court, and that tbe said Court has no jurisdiction in the said [cause] or to hear and determine the said [plaint] by reason that [state facts showing want of jurisdiction"]. We therefore hereby prohibit you from further proceeding in the said [action] in the said Court. Witness, &c. This writ was issued by, &o. No. 12. Mandamus. Victoria, by the grace of God, &c. to of greeting. Whereas by [here recite Aet of Parliament or Charter if the act required to be done is founded on either one or the otherX. And whereas we have been given to under- stand and be informed in the Queen's Bench Division of our High Court of Justice before us that [insert necessary inducement and averments]. And you the said were then and there required by [insert detnand] but that you the said FOEMS OP THE SUPEEME OOUET, 1883. 623 •well knowing the premises, but not regarding your duty in that behalf then and App. J. there -wholly neglected and refused to [insert refusal} nor have you or any of you at any time since in contempt of us and to the great damage and grievance of as we have been informed from their complaint made to us . Whereupon we being -willing that due and speedy justice shoxdd be done in the premises as it is reasonable, do command you the said and every of you firmly enjoining you that you [insert cmnmand] or that you show us cause to the contrary thereof, lest by your default the same complaint should be repeated to us and how you shall have executed this our writ make known to us in our said Comt forthwith then return- ing to us this our said writ, and this you are not to omit. Witness, John Duke, Baeon OoLEBiDaB, the day of in the year of our reign. By the Court, (Signed) CoozBtJEN. No. 13. Conjfmission to examine Witnesses. [Beading as in Form 1.] Victoria, by the grace of God, &o., to of and of Commis- sioners named by and on behalf of the and to of and of Commissioners named by and on behalf of the greeting : Know ye that -we in confidence of your prudence and fidelity have appointed you and by tiiese presents give you power and authority to examine on interrogatories and vivA voce as herein- after mentioned -witnesses on behaK of the said and respectively at before you or any two of you, so that one Commissioner only on each side Jbe present and act at the examination. — ^And we command you as foUows : 1 . Both the said and the said shall be at liberty to examine on inter- rogatories and vivd voce on the subject matter thereof or arising out of the answers thereto such -witnesses as shall be produced on their behalf -with liberty to the other party to cross-examine the said -witnesses on cross-interrogatories and vivd mce, the party producing any -witness for examination being at liberty to re-examine him vivd voce; and all such additional vivd voce questions, -whemer on examination, cross-examination, or re-examination, shall be reduced into -writing, and -with the answers thereto shall be returned -with the said Commission. 2. Kot less than days before the examination of any -witness on behalf of either of the said parties, notice in -writing, signed by any one of you, the Com- missioners of the party on -whose behalf the -witness is to be examined, and stating the time and place of the intended examination and the names of the -witnesses to be examined, shall be given to the Commissioners of the other party by delivering the notice to them, or by leaving it at their usual place of abode or business, and if the Commissioners or Commissioner of that party neglect to attend pursuant to the notice, then one of you, the Commissioners of the paity on -whose behalf the notice is given, shall be at liberty to proceed with and take the examination of the -witness or -witnesses ex parte, and adjourn any meeting or meetings, or continue the same from day to day until aU the witnesses intended to be examined by -yirtue of the notice have been examined, -without giving any further or other notice of the subsequent meeting or meetmgs. 3. ta the event of any -witness on his examination, cross-examination, or re- exajnination producing any book, document, letter, paper, or -writing, and refusing for good cause to be stated in his deposition to part -with the original thereof, then a copy thereof, or extract therefrom, certified by the Commissioners or Commissioner present and acting to be a true and correct copy or extract shall be annexed to the witnesses' deposition. 4. Each -witness to be examined under this Commission shall be exammed on oath, affirmation, or otherwise in accordance -with his _ religion by or before the Commissioners or Commissioner present at the examination. 5. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and vwd voce questions, if any, being previously translated into the language -with which he or they is or are conversant), then the examination shall be taien in English through the medium of an interpreter or interpreters to be nominated by the Commissioners or Commissioner present at the examination, and to be pre-dously sworn according to his or their several reUgions by or before the said Commissioners or Commissioner truly to interpret the questions to be put to the -witness and his answers thereto. 624 FORMS or the SUPEEME court, 1883. App. J. 6. The depositions to be taken imder this Commission shall be subscribed by the witness or ■witnesses, and by the Commissioners or Conunissioner who shall have taken the depositions. 7. The interrogatories, cross-interrogatories, and depositions, together with any documents referred to therein, or certified copies thereof or extracts therefrom, shall be sent to the senior master of the Supreme Court of Judicature on or before the day of enclosed in a coTer under the seals or seal of the Commissioners or Commissioner. 8. Before you or any of you, in any manner act in the execution hereof you shall BeveraUy take the oath hereon indorsed on the Holy Evangelists or otherwise in such other manner as is sanctioned by the form of your several religions and is considered by you respectively to be binding on your respective consciences. In the absence of any other Commissioner, a Commissioner may himself take the oath. And we give you or any one of you authority to administer such oath to the other or others of you. Witness, &o. This writ was issued by, &o. ■Witnesses' Oath. You are true answer to make to all such questions as shall be asked you, without favour or affection to either party, and therein you shall speak the truth, the whole truth, and nothing but the touth. So help you God. COMIQSSIONEES' OatH. Tou [()»• I] shall, according to the best of your [_or my] skill and knowledge, truly and faithfully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every vritness and witnesses produced and examined by virtue of the Commission witmn written. So help you [or me], Grod. Intebfeeieb's Oath. Tou shall truly and faithfully, and without partiality to any or either of the parties in this cause, and to the best of your ability, interpret and translate the oath or oaths, affirmation or affirmations which he shall administer to, and all and every the questions which shall be exhibited or put to, all and every witness and witnesses produced before and examined by the Conuuissioners named in the Commission within written, as far forth as you are directed and employed by the said Commissioners, to interpret and translate the same out of the English into the language of such witness or witnesses, and also in like manner to interpret and translate the respective depositions taken and made to such questions out of the language of such witness or witnesses into the English language. So help you God. Cleek's Oath. Tou shall truly, faithfully, and without partiality to any or either of the parties in this cause, take, write down, transcribe, and engross all and every the questions which shall be exhibited or put to aU and every witness and vritnesses, and also the depositions of all and every such witness and witnesses produced before and examined by the said Commissioners named in the Commission within written, as far forth as you are directed and employed by the Commissioners to take, write down, transcribe or engross the said questions and depositions. So help you God. Direction of Interrogatories, &c., when returned by the Commissioners. The SEinoR Mastbb of the Supbeme Coubt of J-ddioatube, Royal Cotibts of Justice, London. FORMS OF THE SUPBEME COURT, 1883. gyg App. K. APPENDIX K. ' No. 1. Summons {General Form). T„ J.1, TT- 1, /-I i. J. T ,. ^^ • [Sereput the letter and nwmier.'] In the High Court of Justice. Between Plaintiff, Division. and T i n ,. , , Defendant. iiet aU parties oonoemed attend the Judge [oi- Master] in chambers on day the day of 18 at o'clock in the noon, on the hearing of an application on the part of ' s "■ Dated the day of 18 . This summons was taken out by of solicitor for No. 2. Order {General Form). [Meading as in Form l.J *Judge[o>- Master] in Chambers. * Insert name Between _ of judge or Upon hearmg , and upon reading the affidavit of filed the day master of _ 18 and ' It ia ordered and that the costs of this application be Dated the day of 18 . No. 3. Summons for Directions pursuant to Order XXX. [Seading as in Form 1 .] Let all the parties concerned attend Master [ ] ru Chambers on day KU in a date the day of 18 , at o'clock in the noon, on the hearing of not less than an application on the part of for directions for. four days rSiwe state all matters or proceedings previom to trial on which directions are required."] from service Dated the day of 18 . of summons. This summons was taken out by solicitor for To No. 4. Order for Directions pursuant to Order XXX. [Seading as in Form 1.] Upon hearing and upon reading it is ordered as follows : — 1. That the plaintiff deliver to the defendant further and better particulars with dates and items of his claim, and that unless such particulars be delivered within days from the date of this order, all further proceedings be stayed untU the delivery thereof. 2. That the plaintiff and defendant be at liberty to deliver to each other interroga- tories in writing, and that the said parties do respectively answer the said interro- gatories as prescribed by Ord. XXXI. rr. 8 and 26. 3. That the be at liberty to issue a commission for the examination of witnesses on his behalf at and that the trial of the action be stayed until the 626 FOEMS OF THE SUPREME COURT, 1883. App K return of the eaid conmiisBion, the usual long order for the said commission to be drawn up, and unless agreed upon hy the parties -within one week, to he settled by the master. i. That the action be tried in the county of by a judge. 5. That either party be at liberty without further summons, to apply to the master herein for further directions, such application to be made upon two clear days' notice to be served upon the other party. 6. That the costs of this application be costs in the action. Dated day of 18 . No. 5. Order for Time. [Seading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the shaU have time, and that the costs of this appli- cation be Dated the day of 18 . No. 6. Order under Order XIV., No. 1. ]Seading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the plaintiff may sign final judgment in this action for the amount indorsed on the writ, with interest, if any, [or possession of the land in the indorsement of the writ described as ] and costs to be taxed, and that the costs of this application be Dated the day of 18 . No. 7. Order under Order XIV., No. 2. {Seadimg as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the defendant be at liberty to defend this action by delivering a defence within days after service of tiiis order, and that the costs of this application be Dated the day of 18 . No. 8. Order under Order XIV., No. 3. [Seading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that if the defendant pay into Court within a week from the date of this order the sum of £ , he be at liberty to defend this action by delivering a defence within days after service of this order, but that if that sum be not so paid the plaintiff be at liberty to sign final judgment for the amount indorsed on the writ of summons, with interest, if any, and costs, and that in either event the costs of this appUoation be Dated the day of 18 , FORMS 0¥ THE SUPEEME COURT, 1883. C27 ■ No. 9. ^PP- ^- Order under Order XIV., No. 4. \IIeading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that if the defendant pay into Court ■within a week from the date of this order the sum of £ , he be at liberty to defend this action as to the whole of the plaintiff's claim. And it is ordered that if that sum be not so paid the plaintiEB be at liberty to sign judgment for that sum and the defendant be at liberty to defend this action as to the residue of the plaintiff's claim. And it is ordered that in either event the defence be delivered within days after service of this order, and that the costs of this appUoatiou be Dated the day of 18 . No. 10. Order to Amend. [^Seading as in Farm 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the plaintiff be at liberty to amend the writ of summons in this action by and that the costs oi, this application be Dated the day of 18 . No. 11. Order for Particulars {Partnership). \Seading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the furnish the with a statement in writing, verified by affidavit, setting forth the names of the persons constituting the members or co- ■ partners of their firm, pursuant to the Rules of the Supreme Court, 1883, Ord. XVI. r. 14, and that the costs of this application be Dated the day of 18 . No. 12. Order for Partimlars {General). [Eeadimg as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the plaintiff deliver to the defendant an account in writing of the particulars of the plaintiff's claim in this action, and that unless such particulars be delivered within days from the date of this order all further proceedings be stayed unta the delivery thereof, and that the costs of this applica- tion be Dated the day of 18 . SS2 628 rOEMS OF THE STJPEEME COURT, 1883. App.g. No. 14. Order to discharge or vary on Application ly Third Party. [Seading as in Form I.] Upon hearing and upon reading the affidayit of filed the day of 18 , and It is ordered that the order of in this action dated the day of 18 , be discharged [or varied by ], and that the costs of this application be Dated the day of 18 . No. 15. Order to dismiss for want of Prosecution. {Seading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that this action be, for want of prosecution, dismissed -with costs to be tax:ed and paid to the defendant by the plaintiff, and that the costs of this appli- cation be Dated the day of 18 . No. 16. Order for Delivery of Interrogatories. [SeaeUng as in Form 1.] Upon hearing and upon reading the affidavit of , filed the day of 18 , and It is ordered that the be at liberty to deliver to the interrogatories in ■writing, and that the said do answer the interrogatories as prescribed by Order XXXI. Rules 8 and 26 of the Rules of the Supreme Court, and that the costs of this appUoation be Dated the day of 18 . No. 17. Order for Affidavit as to Documents. \_Heading as in Form 1.] Upon hearing It is ordered that the do, within days from the date of this order answer on affidavit stating what documents are or have been in possession or power relating to the matters in question in this action, and that the costs of this application be Dated the day of 18 . No. 18. Order to produce Documents for Inspection. [Heading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the do, at all seasonable times, on reasonable notice, pro- duce at [insert place of inspection], situate at the following documents, namely , and that the be at liberty to inspect and peruse the documents so produced, and to take copies and abstracts thereof and extracts therefrom, at expense, and that in the meantime all further- proceedings be stayed, and that the costs of this application be Dated the day of 18 , rORMS OP THE SUPREME COURT, 1883. 629 App. K. No. 20. — Order for Service out of Jurisdiction. [Seading as in Form 1.] Upon hearing and upon reading the afBdavit of filed the day of 18 , and It is ordered that the plaintiff be at liberty to issue a writ for service out of the jurisdiotion against Aid it is further ordered that the time for appearance to the said writ be within days after the service thereof, and that tiie costs of this application be Dated the day of 18 . No. 21. Order for Substituted Service. [Heading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that service of a copy of tbin order, and of a copy of the writ of summons in this action, by sending the same by a prepaid post letter, addressed to the defendant at shall be good and sufficient service of the writ. Dated the day of 18 . No. 22, Order for Renewal of Writ. [Seading as in Form 1.] Upon hearing and'upon reading the affidavit of filed the day of IS , and It is ordered that the writ in this action be renewed for six months from the date of its renewal, pursuant to the Rules of the Supreme Court Order VIII., Rule 1. Dated the day of 18 . No. 23. Order for Issue of Notice claiming Contribution. [Heading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the defendant be at liberty to issue a notice olainmig over against , pursuant to the Rules of the Supreme Court Order XVI., Rule 48. Dated the day of 18 . 630 FORMS OP THE SUPREME COITRT, 1883, App. K. No. 24. Order of Reference. [Heading as in Form 1.] Upon hearing and by consent It is ordered as follows : 1 . [State matters to he referrecC] shall be referred to the award of 2. The arbitrator shall have all the powers as to certifying and amending of a, judge of the High Court of Justice. 3. The arbitrator shall make and publish his award in writing of and concerning the matters referred, ready to be delivered to the parties in difiEerence, or such of them as reqmre the same (or their respective personal representatives, if either of the said parties die before the making of the award) on or before tiie next, or on or before such further day as the arbitrator may from time to time appoint and signify in writing signed by him and indorsed on this order. 4. The said parties shall in aJl things abide by and obey the award so to be made. ' 5. The costs of the said cause and the costs of the reference and award shall be 6_. The arbitrator may (if he think fit) examine the said parties to this cause, and their respective witnesses, upon oath or afSrmation. 7. The said parties shall produce before the arbitrator all books, deeds, papers, and writings in their or either of their custody or power relating to the matters in difference. 8. Neither the plaintiff nor the defendant shall bring or prosecute any action against the arbitrator of or concerning the matters so to be referred. 9. If either party by affected delay or otherwise wilfuUy prevent the said arbitrator from making an award, he or they ahaH pay such costs to the other as may think reasonable and just. 10. In the event of either of the said parties disputing the validity of the said award, or moving the to set it aside, the said shall have power to remit the matters hereby referred or any or either of them to the reconsideration of the arbitrator. 11. In the event of the arbitrator declining to act or dying before he has made his award, the said parties may, J or if they cannot agree, the master may, on application by either side, appoint a new arbitrator. 12. Unless restrained by any order of the Court or a judge, the party or parties in whose favour the award shall be made shall be at liberty within days after service of a copy of the award on the solicitor or agent of the other party to sign final judgment in accordance with the award, and for all costs that he or they may be entitled to under this order,- and under the award, together with the costs of the said judgment. Dated the day of 18 . No. 25. Order for Examination of Witnesses hefore Arbitrator. [Beading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that attend before the arbitrator herein on the days of 18 , at and then and there submit to be examined on oath or affirmation on behalf of the touching the matters referred to the said arbitrator. Dated the day of 18 . No. 26. Order for Examination of Witnesses and Production of Documents. [Heading as in Form 1.] Upon hearing and upon reading the affidavit of filed day of 18 , and It is ordered that attend before the arbitrator herein on the days of 18 , at , and then and there submit to be examined FORMS OP THE SUPREME COURT, 1883. g31 sSd'lSbite ''J^^*^°'^ °^ ^^^^ °* *^e touoliiag the matters referred to the App. K. Aiid. it is further ordered that the said do at the time and place aforesaid ' proauoe aiid ddiver to the said arbitrator the papers, documents, and -n-ritings here- Mter mentioned, that is to say [specif 1/ doctmenis to be prodnted}. Dated the day of 18 ' No. 27. Order Charging Stock — Nisi. \Headiiig as in Farm 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , where Dy it appears . It is ordered that unless sufficient cause be shown to the contrary before on , . , "^jy r? , . i^y of 18 , at o'clock in the forenoon, the defendant s mterest m the so standing as aforesaid shaJl, and that it ik the meantime do, stand charged with the payment of the above-mentioned amount due on the said judgment. Dated the day of" 18 . No. 28. Order Charging Stock — Absolute. [^Heading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day °* 18 , and an order nisi made hereia on the day of 18 reoiting the affidavit of whereby it appeared . ' It is ordered that the defendant's interest in the so standing as aforesaid stand charged with the payment of the above-mentioned amount due on the said judgment. Dated the day of 18 . No. 29. Charging Order. Solicitor's Costs. \_Reading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and . ■' It is ordered that the said the solicitor for the in this action shall have a charge upon for his costs, charges, and expenses of and in reference to this action. Dated the day of 18 . No. 30. Order to remove Judgment from, County Court. 18 . [Sere put the letter and number. '\ In the High Court of Justice. Division. Y. Master in Chambers. In the matter of a plaint in the County Court of holden at wherein plaintiff, and defendant. Upon reading the affidavit of filed the ' day of 18 , and and the certified copy of the judgment in the plaint above mentioned. It is ordered that a writ of certiorari issue to remove the said judgment from the above-named County Court into the Division of the High Court of Justice, Dated the day of 18 . 632 FORMS OP THE STJPBEME COURT, 1883. App.K. No. 31. Order for Arrest {Capias) under Debtors Act. \Seadmg as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the defendant he arrested and imprisoned for the term of from the date of his arrest, including the day of such date, unless and until he shall sooner deposit in Court the sum of £ , or give to the plaintiff a hond executed by him and two sufficient sureties ia the penalty of £ , or some other security satisfactory to the plaintiff, that And it is further ordered that the sherijffi of do within one calendar month from the date hereof, including the day of such date, and not afterwards, take the defendant for the purpose aforesaid, if he shall he found in the said sheriff's bailiwiok. Dated the day of- 18 . No. 32. Order of Reference under Sect. 56 of the Supreme Court of Judicature Act, 1873. [Seading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the following question arising in this action, namely, he referred for inquiry and report to under section 56 of the Supreme Court of Judicature Act, 1873, and that the costs of this application be Dated the day of 18 . No. 33. Order of Reference under Sect. 57 of the Supreme Court of Judicature Act, 1873. [^Seading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of is , and It is ordered that the [state whether all or some, and if so which, of the questions are to be tried] in this action be tried by who shall have aU the powers as to certifying and amending of a judge of the High Court of Justice, and shall make his report of and concerning the matters ordered to be tried as aforesaid pursuant to the statute [or direct judgment to be entered and otherwise deal with the whole action pursuant to Order XXXVI., Rule 60]. And it is further ordered that the said referee may, if he think fit, examine the parties to this action, and their respective witnesses, upon oath or affirmation, and that the said parties shall produce before the said referee aU books, deeds, papers, and writings in their or either of their cxistody or power relatiag to the matters so ordered to be tried. And it is further ordered that neither the plaintiff nor the defendant shall bring or prosecute any action against the said referee, or against each other, of or concerning the matters so ordered to be tried, and that if either party by affected delay or otherwise wilfully prevent the said referee from maiing his report, he or they shall pay such costs to the other as the Court, or a judge, may think reason- able and just. And it is further ordered that in the event of the said referee declining to act, or dying before he has made his report, the said parties may, or if they cannot agree, one of the judges of the High Court may, upon applioation by either party, appoint a new referee. And it is ordered that the costs of this application be Dated the day of 18 . FORMS OF THE SUPREME COURT, 1883. 633 No. 34. App. K. Order of Reference to Master. [Sealing as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that this action \or the matters of account in this action, or the following questions in this action heing matters of account, namely, stating than] be referred to the certificate of the master, with all the powers as to certifying and amending of a judge of the High Court of Justice, and that the costs of the and of the reference be in the discretion of the master, and that the costs of this application be Dated the day of 18 . No. 35. Order for Examination of Witnesses before Trial. [Seading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that a witness on behalf of the be examined vivd voce (on oath or affirmation) before the master [or before esquire, special examinerj, the solicitor or agent giving to the solicitor or agent notice in vraiting of the time and place where the examination is to take place. ' And it is further ordered that the examination so taken be filed in the Central Office of the Supreme Court of Judicature, and that an office copy or copies thereof may be read and given in evidence on the trial of this cause, saving all just excep- tions, vrithout any further proof of the absence of the said witness than tiie affidavit of the solicitor or agent of the as to his belief, and that the costs of this application be Dated the day of 18 . No. 36. Short Order for Issue of Commission to examine Witnesses. [Heading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the be at liberty to issue a commission for the examina- tion of witnesses on behalf at - And it is further ordered that the trial of this action be stayed until the return of the said commission, the usual long order to be drawn up, and unless agreed upon by the parties withm one week, to be settled by the master \or as the case may J«], and that the costs of this application be Dated the day of 18 . No. 37. Long Order for Commission to examine Witnesses. [Heading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered as follows : — „ j j! 1. A commission may issue directed to of and of commis- sioners named by and on behaU of the and to of and 634 FOEMS OP THE SUPREME COURT, 1883. App. E. donmiissioners named by and on behalf of the for the examination upon r- :r interrogatories and vivd voce oi witnesses on behalf of the said and respectively at aforesaid before the said commissioners, or any two of them, so that one commissioner only on each side be present and act at the examination. 2. Both the said and shall be at liberty to examine upon interroga- tories and vivd voce upon the subject matter thereof or arising out of the answers thereto such witnesses as may be produced on their behalf, with liberty to the other party to cross-examine the said witnesses upon cross-interrogatories and viv& voce the party produciQg the witness for exanunation being atliberfy to re-examine him vivd voce ; and all such additional viv& voce questions, whether on examination, cross- examination, or re-examinatdon, shall be reduced into writing, and, with the answers thereto, returned with the said commission. 3. Within ■ days from the date of this order the solicitors or agents of the said and shall exchange the interrogatories they propose to administer to their respective witnesses, and ahall also withm days from the exchange of such interrogatories, exchange copies of the cross-interrogatories intended to be administered to the said witnesses. 4. days previously to the sending out of the said oommission, the solicitor of the said shall give to the solicitor of the said notice in writing of the mail or other conveyance by which the commission is to be sent out. 5. days previously to the examination of any witness on behalf of the said or respectively, notice in writing signed by any one of the commis- sioners of the party on whose behalf the witness is to be examined and stating the time and place of the intended examination, and the names of the witnesses in- tended to be examined, shall be given to the commissioners of the other party by delivering the notice to them personally, or by leaving it at their usual place of abode or business, and if the commissioners of that party neglect to attend pursuant to the notice, then one of the commissioners of the party on whose behalf the notice is given shall be at liberty to proceed with and take the examination of the witness or witnesses ex pm-te, and adjourn any meeting or meetings, or continue the same, from day to day until all tiie witnesses intended to be examined by virtue of the notice have been examined, without giving any further or other notice of the sub- sequent meeting or meetings. 6. In the event of any witness on his examination, cross-examination, or re-exa- mination producing any book, document, letter, paper, or writing, and refusing for good cause to be stated in his deposition, to part with the original thereof, then a copy thereof, or extract therefrom, certified by the commissioners or commissioner present to be a true and correct copy or extracts shall be annexed to the witnesses' deposition. 7. Each witness to be examined under the oommission shall be examined on oath, affirmation, or otherwise in accordance with his religion by or before the said com- missioners or commissioner. 8. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and viva voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shall be taken in English through the medium of an inter- preter or interpreters, to be nominated by the commissioners or commissioner, and to be previously sworn according to his or their several religions by or before the said commissioners or commissioner truly to interpret the questions to be put to the witness or witnesses, and his and their answers thereto. 9. The depositions to be taken under and by virtue of the said commission shall be subscribed by the witness or witnesses, and by the commissioners or commis- sioner who shall have taken such depositions. 10. The interrogatories, cross-interrogatories, and depositions, together with any documents referred to therein, or certified copies thereof or extracts tiierefrom, shall be sent to the senior master of the Supreme Court of Judicature on or before the day of , or such further or other day as may be ordered, enclosed in a cover under the seal or seals of the said oommissioners or commissioner, and office copies thereof may be given in evidence on the trial of this action by and on behalf of the said and respectively, saving all just exceptions, without any other proof of the absence from tUs opuntry of the witness or witnesses therein named, than an affidavit of the solicitor or agent of the said or respectively, as to his belief of the 1 1 . The trial of this cause is to be stayed until the return of the said commission. 12. The costs of this order, and of the oommission to be issued in pursuance hereof, and of the interrogatories, cross-interrogatories, and depositions to be taken thereunder, together with any such document, copy, or extract as aforesaid, and official copies liereof, and all other costs incidental thereto, shall be Dated the day of 18 . FOEMS OF THE SUPREME COURT, 1883. 635 No. 37a.* App. K. Order for Issue of Letter of Request. * This and the ■^ ./ 2 next rule were It is ordered that a letter of request do issue directed to the proper tribunal for added by the examination of the following witnesses, that is to say : E. E. of , G. H. E. S. C. of ' , and I. J. of . Oct. 1884. And it is ordered that the depositions taken pursuant thereto when received be filed at the central office, and be given in evidence on the trial of this action, saving aU just exceptions. No. 37b. Request to Examine Witnesses. Whereas an action is now pending in the Division of the High Court of Justice in England, in which A. B. is plaiutiff and C. D. is defendant. And in the said action the plaintiff claims [endorsement upon writ]. And whereas it has been represented to the said Court that it is necessary for the purposes of justice and for the due determination of the matters in dispute between the parties, that the following; persons should be examined as witnesses upon oath touching such matters, that is to say : E. E. .of Gr. H. of and I. J. of And it appearing- that such witnesses are resident within the jurisdiction of your honourable Court. Now I as the President of -the said Division of the High Court of Justice have the honour to reqiiest, and do hereby request, that for the reasons aforesaid and for the assistance of the High Court of Justice, you as the President and judges of the said or some one or more of you, will be pleased to summon the said witnesses (and such other witnesses as the agents of the said plaintiff and defendant shall humbly request you in writing so to summon) to attend at such time and place as you shall appoint before some one or more of you, or such other person as according to the procedure of your Court is competent to take the examination of witnesses, and that you will cause such witnesses to be examined upon the interrogatories which accompany this letter of request (or vivA voce) touch- ing the said matters in question in the presence of the agents of the plaintiff^ and defendant, or such of them as shall, on due notice given, attend such examination. And I further have the honour to request that you will be pleased to cause the answers of the said witnesses to be reduced into writing, and aU books, letters, papers, and documents produced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of your tribunal, or in such other way as is in accordance with your procedure, and to return the same, together with such request in writing, if any, for the examination of other witnesses, through her Majesty's Secretary of State for Foreign AfEairs, for transmission to the said High Coiit of Justice in England. No. 38. Order for Examination of Judgment Debtor. 18 . [Sere put the letter and number .1 In the High Court of Justice. Division. Between Judgment Creditor, and Judgment Debtor. Upon hearing and upon reading the afadavit of filed the day ° It is ordered that the above-named judgment debtor attend and be orally examined as to whether any and what debts are owin| to him, before in chambers, at such time and place as he may appomt, and that the said judgment debtor produce Hs books [or as may be ordered'] before the said at the time ot the examination, and that the costs of this application be Dated the day of 18 . 636 E'ORMS OP THE SUPREME COURT, 1883. App. K. No. 39. Garnishee Order {Attaching Debt). 18 . \B.ei-e put the letter and number. "^ In the High Court of Justice. Between Judgment Creditor, Division. and in Chambers. Judgment Debtor, Granushee. Upon hearing and upon reading the afSdavit of filed the day of 18 , and It is ordered that all debts owing or accruing due from the above-named garnishee to the above-named judgment debtor be attached to answer a judgment recovered against tbe said judgment debtor by the above-named judgment creditor in the High Court of Justice on the day of 18 , for the siun of on which judgment the said sum of £ remains due and impaid. And it is further ordered that the said garnishee attend the in chambers on day the day of 18 , at o'clock in the noon, on an appUcation by the said judgment creditor, that the said garnishee pay the debt due from him to the said judgment debtor, or so much thereof as may be sufficient to satisfy the judgment. And that the costs of this application be Dated the day of 18 . No. 40. Garnishee Order {Absolute'). 18 . [Sere put the letter and nvmber.'\ In the High Court of Justice. Between Judgment Creditor, Division. and in Chambers. Judgment Debtor, Granushee. Upon hearing and upon reading the affidavit of filed the day of 18 , and whereby it was ordered that all debts owing or accruing due from the above-named garnishee to the above-named judgment debtor should be attached to answer a judgment recovered against the said judgment debtor by the above-named judgment creditor in the High Court of Justice on the day of 18 , for the sum of £ on which judgment the said sum of £ remained due and unpaid. It is ordered that ttie said garnishee do forthwith pay the said judgment creditor the debt due from him to the said judgment debtor (or so much thereof as may be sufficient to satisfy the judgment debt), and that in default thereof execution may issue for the same, and that the costs of this application be Dated the day of 18 . No. 41. Order on Clients Application to tax Solicitor's Bill of Costs. 18 . [Sere put tlie letter and number. 1 In the High Court of Justice. Division. in Chambers. In the matter of the taxation of costs, and in the matter of gentleman, one of the soHoitors of the Supreme Court. It is ordered that the bill of fees, charges, and disbursements delivered to the ap- plicant by the above-named soUoitor be referred to the taxing officer to be taxed, and that the said soUoitor give credit for all sums of inoney by bim received of or on account of the applicant, and that he refund what, if any thing, he may on such taxation appear to have been overpaid. POEMS OF THE SUPREME COURT, 1883. 637 And it is further ordered that if the said soUcitor attends on the taxation, the App K. tasng oftioer tax the costs of the reference, and certify what shall be found due to — 1- or from either party in respect of the bUl and demand and of the costs of the refer- ence, to be charged (if payable) according to the event of the taxation, pursuant to the statute. And it is further ordered that the said solicitor do not coramence or prosecute any cause or matter touching the demand pending the reference. And it is further ordered that upon payment by the applicant of what (if any- thing) may appear to be due to the said solicitor the said solicitor do (if required) dehyer. up to the applicant, or as he may direct, all deeds, books, papers, and writings in the said solicitor's possession, custody, or power, belonging to the applicant. And it is ordered that the costs of this application be Dated the day of 18 . No. 42. Order on Solicitor's Application to tax Bill of Costs. 18 . {Sere put the Utter and mtmber.'] In the High Court of Justice. Division. in Chambers; In the matter of the taxation of costs, and in the matter of gentleman, one of the solicitors of the Supreme Court. , Upon hearing and upon reading the affidavit of filed the day of 18 , and . It is ordered that the above-named solicitor' sbUl of fees, charges and disbursements, delivered to (hereinafter called the said client) be referred to the taxing officer to be taxed, and that the said solicitor give credit for all sums of money by him received from or on account of the said oUent, and that he refund what (if anything) he may on such taxation appear to have been over- paid. And it is further ordered that the taxing officer tax the costs of the reference and certify what shall be found due to or from either party in respect of the bill and demand and of the costs of the reference, to be paid according to the event of the taxation pursuant to the statute. And it is further ordered that the said solicitor do not commence or prosecute any cause or matter touching the demand pending the reference. And it is further ordered that upon payment by the said client of what (if any- thing) may appear to be due to the said solicitor the said solicitor do (if required) deliver to the said client, or as he may direct, all deeds, books, papers and writings in the said solicitor's possession, custody, or power, belonging to the said client. And it is ordered that the costs of this application be Dated the day of 18 . No. 43. Order to tax after Action brought. [Heading as in Form 1.] Upon hearing and upon reading the affidavit of filed the day of 18 , and . It is ordered that the plaintiff's bill of costs, charges and disbursements delivered to the defendant, for the recovery of which this action is brought, be referred to the taxing officer to be taxed, and that the plaintiff give credit of tiie time of taxation for aU sums of money by him received from or on account of the defendant. And it is further ordered that the taxing officer tax the costs of the reference, and certify what upon such reference shall be found due to or from either party in respect of the bill and demand, and of the costs of the reference, pursuant to the statute. And it is further ordered that the plaintiff do not prosecute this action touching the demand pending the reference. 638 FOEMS OP THE SUPREME COURT, 1883. App. K. And it is further ordered that upon payment of what (if anything) may appear to .- be due to the plaintiff, together with the costs of this action (which are to be also taxed and paid), aU further proceedings therein be stayed, and that the costs of this application be Dated the day of 18 . No. 44. Order to try Action in County Court. \SemLmg as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that this action be tried before the County Court of holden at , and that the costs of this appUoation be ' . Dated the day of 18 . No. 45. Order to give Security or try Action in County Court. \_Seading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that unless the plaintiff within give full security for the defen- dant's costs to the satisfaction of the Master \or as the case may be], this action be remitted for trial before the County Court of holden at and that the costs of this application be Dated the day of 18 . No. 46. Order /or Examination touching Means, 18 . lEereput the letter and nvmher.] In the High Court of Justice. Division. Between Judgment Creditor, Master in Chambers. and Judgment Debtor. Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the above-named do attend before the master on the day of next, at in the noon, to be examined upon oath touching his means of paying the judgment debt, and that the costs of this application be . - . Dated the day of 18 . FORMS OF THE SUPREME COURT, 1883. 639 No. 47. App. K. Order for Payment of Judgment Debt by Instalments. 18 . {Sere pnt the lettei' and mim'bm:'] In the High Court of Justice. Division. Between Judgment Creditor, Master in Chambers. and Judgment Debtor. Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the above-named judgment debtor do pay to the above-named judgment creditor the sum of , together with interest thereon at the rate of £4 per centum per annum from the day of 18 , the date of the judgment, and also £ the costs of this application in manner following ; namely, \here describe the mode in which the payment is to be model. Dated the day of 18 . No. 48. Order for Committal of Judgment Debtor. 18 . ISere put the letter and mmier.'] In the High Court of Justice. Division. Between Judgment Creditor, Judge in Chambers. and Judgment Debtor. Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the above-named judgment debtor be, for default in payment of the debt hereinafter mentioned, committed to prison for the term of from the date of his arrest, including the day of such date, or untU he shall pay £ being the amount due from him in pursuance of a judgment [or order] of the High Court of Justice, bearing date the day of 18 , together with interest thereon at il. per cent, per annum from the aforesaid date, and 11. 6s. Sd. for costs of this order, and sheriff's fees for the execution thereof. And it is further ordered that the sheriEB take the said debtor for the purpose aforesaid if he is found within his baiKwiok. And it is ordered that the costs of this application be Dated the day of 18 . No. 49. ■Order for Committal of Judgment Debtor on Non-payment of Instalment. 18 . [Sere put the letter and number.'] In the High Court of Justice. Division. Between Judgment Creditor, Judge in Chambers. and Judgment Debtor. Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the above-named judgment debtor be for default in payment of £ , being the amount of the [^rsi] instalment of the judgment debt of £ in this action directed to be paid pursuant to the order of bearing date the day of 18 , committed to prison for the term of from the date of his arrest, including the day of such date, or until he shall pay the said instalment together with 13s. id. the costs of this order, and sheriff's fees for the execution thereof. And it is further ordered that the sherifE of take the said debtor for the purpose aforesaid if he is found in his baUiwick. And it is ordered that the costs of. this application be Dated the day of 18 . 640 I'OKMS OF THE SUPREME COURT, 1883. App. K. ' No. 60. Interpleader Order, No. 1. 18 . [Sere put the letter amd number, "l In the High Court of Justice. Between Plaintifi, Diyision. . and in Chamhers. Defendant, and between Claimant, and Respondent. Upon hearing and upon reading the affidavit of filed the day of 18' , and It is ordered that the claimant he haxred, that no action be brought against the above-named [sheriff] , and that the costs of this application be Dated the day of 18 . No. 51. Interpleader Order, No. 2. 1 8 . [Sere put the letter and numier.J Inihe High Court of Justice. Between Plaintifl, Division. and in Chambers. . Defendant, and Claimant. Upon hearing and upon reading the affidavit of filed the day of , 18 , and It is ordered that the above-named claimant be substituted as defendant in this action in Heu of the present defendant and that the costs of this application be Dated the day of 18 . No. 62. Interpleader Order, No. 3. 18 . [Sere piit the letter and mimier. 2 In the High Court of Justice. Between Plaintiff, Division, and in Chambers. Defendajat, and between Claimant, and the said execution creditor, and the sheriff of Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the said sheriff proceed to sell the goods seized by him under the writ of fieri facias issued herein, and pay the net proceeds of the sale, after deducting the expenses thereof, into Court in this cause, to abide further order herein. And it is further ordered that the parties proceed to the trial of an issue in the Hio'h Court of Justice, in which the said claimant shall be the plaintiff and the said execution creditor shall be the defendant, and that the question to be tried shall be whether at the time of the seizure by the sheriff the goods seized were the property of the claimant as against the execution creditor. And it is further ordered that this issue be prepared and delivered by the plaintiff therein within from this date, and be returned by the defendant therein within days, and be tried at And it is further ordered that the question of costs and all further questions be reserved until the trial of the said issue, and that no action shall be brought against the said shmiff for the seizure of the said goods. Dated the day of 18 . . - FORMS OF THE SUPREME COURT, 1883 . 641 No. 53. -^PP-g- Interpleader Order, No. 4. {Heading as in Form 52,] Upon hearing, &o. It is ordered that upon payment of the sum of £ into Covirt by the said claimant within from this date, or upon his giving within the same time security to the satisfaction of the master [or as the case'may Je] for the payment of the same ajuouut by the said claimant according to the directions of any order to be made herein, and upon payment to the above-named sheriff of the possession money from this date, the said sheriff do withdraw from the possession of the goods seized by him under the writ of fieri facias herein. And it is further ordered that unless such payment be made or security given within the time aforesaid the said sheriff proceed to sell the said goods, and pay the proceeds of the sale, after deducting the expenses thereof and the possession money from this date, into Court in the cause, to abide fm-ther order herein. And it is further ordered that the parties proceed, &c. And it is further ordered that this issue, &c. And it is further ordered that the question of costs, &c. Dated the day of 18 . No. 54. Interpleader Order, No. 5. [Seading as in Form 52.] Upon hearing, &c. It is ordered that upon payment of the sum of £ into Court by the said claimant, or upon his giving security to the satisfaction of the master [or as the ease may fo] for the payment of the same amount by the claimant according to the directions of any order to be made herein, the above-named sheriff withdraw from the possession of the goods seized by him under the writ of fieri facias issued herein. And it is further ordered that in the meantime, and until such payment made or security given, the sheriff continue in possession of the goods, and the claimant pay possession money for the time he so continues, unless the claimant desire the goods to be sold by tiie sheriff, in which ease the sheriff is to sell them and pay the proceeds of the sale, after deducting the expenses thereof and the possession money from this date, into Court in the cause, to abide further order herein. And it is further ordered that the parties proceed, &o. And it is further ordered that this issue, &c. And it is further ordered that the question of costs, &c. Dated the day of 18 . No. 55. Interpleader I Order, No. 6. [Heading as in Form 52.] The claimant and the execution creditor having requested and consented that the merits of the claim made by the claimant be disposed of and determined in a summary manner, now upon hearing , and upon reading the af&davit of filed the day of 18 , and It is ordered that And that the costs of this application be Dated day of 18 . U, TX 642 FORMS OP THE SUPREME COURT, 1883. App. K. — No. 56. Interpleader Order, No. 7. [Seading as in Form 52.] Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that the above-named sheriff proceed to sell enough of the goods seized under the ■writ of fieri facias issued in this action to satisfy the expenses of the said sale, the rent (if any) due, the claim of the claimant, and this execution. And it is further' ordered that out of the proceeds of the said sale, (after deducting the expenses thereof, and rent, if any, ) the said sheriff pay to the claimant the amount of his said claim, and to the execution creditor the amount of his execution, and the residue, if any, to the defendant. And it is further ordered that no action he brought against the said sheriff, and that the costs of this application be Dated the day of 18 . No. 57. Order dismissing Summons {generally). \Seading as in Form 1 .] Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the application of be dismissed* with costs to be taxed and paid by the to the" ' [or, and that the costs of and occasioned by this application be the 's in any event). Dated the day of 18 . No. 58. Summons for Entry of Satisfaction on a Registered Bill of Sale. In the High Court of Justice. In the matter of a bill of sale by to dated the day of 18 , and registered on the day of 18 . Let aU parties concerned attend the registrar of bills of sale at the central office. Royal Courts of Justice, London, on the day of 18 , at o'clock in the noon, on the hearing of an application on the part of that satis- faction be entered on the above-mentioned biU of sale. Dated the day of 18 . This summons was taken out by of to . POEMS OB" THE SUPREME COURT, 1883. 643 App. L. APPENDIX L. CHANCERY DIVISION. No. 1. Summons ly Chief Clerh. In the High Court of Justice. Chancery Division. Mr. Justice In the matter of the estate of A. B., late of in the county of deceased. Or, Between C. D., petitioner, and E. E., defendant. The defendant E. E. \or G. H., of, &c.], is hereby summoned to attend at ihe Chambers of Mr. Justice , at the Royal Courts of Justice, on the day of , at o'clock in the noon, to be examined {or to be examined as a witness] on the part of the , for the purpose of the proceedings directed by Mr. Justice to be taken before me, Dated this day of 18 . X. X. " Chief Clerk. This summons was taken out by of , in the county of , soUoitors for No. 2. Form, of Advertisement for Claimants not being Creditors. Pursuant to a judgment [or order] of the Chancery Division of the High Court of Justice made in [the matter of the estate of , and in] an action by against , the persons claiming to be next of kin to [or the heir of, as the case may he], , late of , in the county of , who died in or about the month of , are by their solicitors, on or before the day of . , to come in and prove their claims at the Chambers of Mr. Justice , at the Royal Courts of Justice, or in default thereof they will be peremptorily excluded from the benefit of the said judgment [or order]. The day of , at o'clock in the noon, at the said Chambers, is appointed for hearing and adjudicating upon the claims. Dated the day of 18 . A. B., Chief Clerk. No. 3. Form of Advertisement for Creditors. Pursuant to a judgment [or an order] of the Chancery Division of the High Court of Justice made in [the matter of the estate of A. B., and in] an action S. against P., the creditors of A. B., late of , in the county of , who died in or about the month of 18 , are on or before the day of 18 , to send by post, prepaid, to E. P., of , the solicitor of the defendant C. D., the executor [or administrator] of the deceased [or as may he directed, their christian and sur- name, addresses and descriptions, the full particulars of their claims, a statement of their accounts, and the nature of the securities (if any) held by them, or in default thereof, they will be peremptorily excluded from the benefit of the said judgment [(W order]. Every creditor holding any security is to produce the same before Mr. Justice , at his chambers, the Royal Courts of Justice, London, on the day of 18 , at o'clock in the noon, being the time appointed for adjudication on the claims. Dated this day of 18 . G. H., Chief Clerk. T T 2 644 FORMS OF THE SUPREME COURT, 1883. ^PP- ^- No. 4.- Notice to Creditor to produce Documents. t^ShoH Title.) Tou are hereby required to produce in support of the claim sent in by you against the estate of A. B. deceased [deseribe the doeuinent required to be produced'], before Mr. Justice , at his chambers at the Royal Courts of Justice, London, on the day of 18 , at o'clock in the noon. Dated this day of 18 . G. R., of, &.O., solicitor for plaintiff [or defendant, or as the case may be]. To Mr. S. T. No. 5.' Affidavit of Executor or Administrator as to Claims of Creditors. In the High Court of Justice. Chancery Division. Mr. Justice (Title.) We, C. D., of, &c., the above-named plaintiff [or defendant, or as may be], the executor [or administrator] of A. B., late of , in the county of , deceased, and E. F., of, &o., solicitor, severally make oath and say as follows : I, the said E. F., for myself, say as follows : 1. I have in the paper writing now produced, and shown to me, and marked A., set forth a list of all the claims the particulars of which have been sent in to me by persons claiming to be creditors of the said A. B., deceased, pursuant to the adver- tisement issued in that behalf, dated the day of 18 . And I, the said CD., for myseU, say as follows : 2. I have examined the particulars of the several claims mentioned in the paper writing now produced, and shown to me, and marked A., and I have compared the same with the books, accounts, and documents of the said A. B. [or as may be, and state any other inquiries or investigations made], in order to ascertain, so far as I am able, to which of such claims the estate of the said A. B. is justly liable. 3. From such examination [and state any other reasons] I am of opinion and verily believe, that the estate of the said A. B. is justly liable to the amounts set forth in the sixth column of the first part of the said paper writing, marked A., and to the best of my knowledge and belief, such several amounts are justly due from the estate of the said A. B., and proper to be allowed to the respective claimants named in the said schedule. 4. I am of opinion that the estate of the said A. B. is not justly liable to the claims set forth in the second part of the said paper writing, marked A., and that the same ought not to be allowed without proof by the respective claimants [or, I am not able to state whether the estate of the said A. B. is justly liable to ike claims set forth in the second part of the said papei' writing, marked A., or whether such claiijis, or any parts thereof, are proper to be allowed without further evidence]. 5. Except as hereiabefore mentioned, there are not, to the best of my knowledge, information, and belief, any other claims against the estate of the said A. B. Sworn, &c. No. 6. Exhibit referred to in Affidavit, No. 5. A. [Short Title.) List of claims, the particulars of which have been sent in to E. F., the solicitor of the plaintiff [or defendant, or as may is], by persons claiming to be creditors of FORMS OP THE SUPREME COURT, 1883. A. B., deceased, pursuant to the advertisement issued in that behaK, dated the day of 18 . , This paper -writing marked A. was produced aoad shown to and is the same as IS referftd to in his affidavit sworn before me this day of 18 . W. B. &o. EtBST Paet. — Claims proper to be allowed without further evidence. 645 App. L. Serial No. Names of .Claimants. Addresses and Descriptions. Particulars of Claim. Amount claimed. Amount proper to be allowed. £ s. d. £ «. d. Second Pabt. — Claims wMch ought to be proved by tbe claimants. Serial No. Names of CIsiniaiits. Addreaaea and BeBcriptions. Particulars of Claim. Amount claimed. & *. d. No. 7. Notice to Creditor of Allowance of Claim. (Short Title.) The claim sent in by you against the estate of A. B. deceased, has been allowed at the sum of £ with interest thereon at £ per cent, per annum, from the day of 18 , and £ for costs. [_If part only allowed, add, If you claim to have a larger sum allowed, you are hereby required to prove such further claim, and you are to file such affidavit as you may be advised in support of your claim and give notice thereof to me on or before the day of 18 next, and to attend hj your solicitor at the chambers of Mr. Justice , at the Royal Courts of Justice on day of 18 , at o'clock in the noon, being the time appointed for adjudicating on the claim'] Dated this day of 18 . G-. R., of, &o., solicitor for the plaintiff [<»• defendaht, or as may he]. To Mr. P. R. 6-16 POEMS OF THE SUPREME COURT, 1883. App. L. No. 8. Notice to Creditor to prove Ms Claim. [Short Title.) You are hereby required to prove the olaim sent in by you against the estate of A. B., deceased. You are to file such affidavit as you may be advised in support of your claim, and give notice thereof to me on or before the day of next, and to attend by your solicitor at the chambers of Mr. Justice at the Royal Ck)urts of Justice on the day of 18 at o'clock iu the noon, being the time appointed for adjudicating on the claim. Dated this day of . 18 . G-. R., of, &c., solicitor for the plaintifiB [or defendant, or as may be]. To Mr. S. T. No. 9. Notice that Cheques may he received. {Short Titk.) The cheques for the amounts directed to be paid to the creditors of A.B ., deceased, by an order made in this [matter and] action dated the day of 18 may be received at the Paymaster-General's ofEoe on and after the day of 18 . G-. R., of, &o., solicitor for the plaintiff \pr defendant, m- as may lei. To Mr. W. S. No. 10. Certificate of Chief Clerk. [Title.) In pursuance of the directions given to m^ by Mr. Justice , I hereby certify that the result of the accounts and inquiries which have been taken and made in pursuance of the judgment \or order] in this cause dated the , day of is as follows : 1 . The defendants the executors of the testator, have received personal estate to the amount of £ and they have paid or are entitled to be allowed on account thereof, sums to the amount of £ having a balance due from \or to] them of £ on that account. The particulars of the above receipts and payments appear in the account marked verified by the affidavit of filed on the day of and which account is to be filed with this certificate, except that in addition to the sums appearing on such account to have been received, the said defendants are charged vidth the following sums [state the same here or in a schedule"] and except that I have disallowed the items of disbursement in the said account numbered , and, [Or in cases where a transcript has been made.] The defendants have brought in an account verified by the affidavit of , filed on the day of and which account is marked and is to be filed with this certificate. The account has been altered, and the account marked and which is also to be filed with this certificate, is a transcript of the account as altered and passed. 2. The debts of the testator which have been allowed, are set forth in the Schedule hereto, and with the interest, thereon and costs mentioned in the Scliedule are due to the persons therein named, and amount altogether to £ 3. The funeral expenses of the testator amount to the sum of £ which I have allowed the said executors in the said account of personal estate. i. The legacies given by the testator are set forth in the Schedule hereto, and with the interest therein mentioned remain due to the persons therein named, and amount altogether to £ 5. The outstanding personal estate of the testator consists of the particulars set forth in the Schedule hereto. POEMS OF THE SUPREME COURT, 1883. 6i7 6. The real estate to which the testator was entitled consists of the particulars set A-pp. L. forth in the Schedule hereto. — 7. The defendants have received rents and profits of the testator's real estate, «:c. [in a form similar to that provided with respec^o the personal estate]. 8. The incumbrances affecting the said testator's real estate are specified in the Schedule hereto. 9. The real estates of the testator' directed to he sold, have been sold, and the purchase monies amoimting altogether to £ have been paid into Court. N.B. — The above numbers are to correspond with the numbers in the order after each statement, the evidence produced is to be stated as follows : — The evidence produced on this account [or inquiry] consists of the probate of the testator's will, the affidavit of A. B. filed and paragraph numbered of the affidavit of C. B., filed. No. 11. Affidavit verifying Accounts and answering usual Inquiries as to Real and Personal Estate.. « In the High Court of Justice. Chancery Division. Mr. Justice {Title.) We A. B., of &o., 0. D., of, &c., and E. F., of, &o., the above- named defendants, severally make oath and say as follows : 1 . We have according to the best of our knowledge, information, and belief, set forth in Schedule I. hereto a full account and inventory of the personal estate of or to which Gr. H. , the testator in the judgment [or order] dated made in this action [or matter] named, who died on the day of , was possessed or entitled at the time of his death, and not by him specijically bequeathed. 2. Save what is set forth in the said Schedule I., and what is by the said testator The words in specijically bequeathed, the said testator was not to the best of our knowledge, italies to be information, or belief, at the time of his death possessed of or entitled to any debt inserted only or sum of money due to him from us or any of us on any account whatsoever, nor where the to any leasehold or other personal estate whatsoever. direction is to 3. The said testator's funeral expenses have been paid. The same consist of the take an items of disbursement numbered and in the account hereinafter account of referred to [or if not paid, it should be so stated with the amount due and to whom due'], personal 4. We have in the account marked A., now produced and shown to us, according estate not to the best of our knowledge, information, and belief, set forth a full account of specifically the personal estate of the said testator, not by him specifically bequeathed, which has bequeathed. come to our hands or to the hands of any of us, or to the hands of any person or rrn^ should persons by our order or the order of any of us, or for our use or the use of any of g^„gQj.^ with us, with the times when, the names of the persons from whom, and on what ,, order account the same has been received, and also a Hke account of the disbursements, |jjj,ggj^ijj~ ij^g allowances, and payments made by us or any of us on account of the said testator's g^|,„gjjjj^ funeral expenses, debts, and personal estate, together with the times when the names of the persons to whom, and the purposes for which the same were disbursed, allowed, or paid. 5. And we, each speaking positively for himself and to the best of his knowledge and belief as to other persons, further say that except as appears in the said account marked A., we have not, nor has any of us, nor have nor has any other person or persons by our order or the order of any of us, or for our use or the use of any of us, possessed, received, or got in any part of the said testator's personal estate, nor any money in respect thereof, and that the said account marked A. does not contain any item of disbursement, aUowanoe, or payment, other than such as has actually been disbursed, paid, or allowed on the account aforesaid. 6. To the best of our knowledge, information, and belief, the personal estate of the said testator, now outstanding or undisposed of, consists of the particulars set forth in Schedule II. hereto. 7. Save what is set forth in the Schedule II., there is not to our knowledge, information, or belief, any part of the said testator's personal estate now outstand- ing or undisposed of. 8. We have, according to the best of our knowledge, information, and behef, set forth in Schedule III. hereto the particulars of all the real estate which the said Gr. H. was seised of or entitled to at the date of his death. 648 FORMS OP THE SUPREME COTTRT, im. App. L. This should accord yrWi the order direotiBg the account. 9. Save -what is set forth in the said schedule, the said testator was not to the best of our kno-wledge, information, or helief, at the time of his death seised of or entitled to any real estate whatsoever. 10. We have, according to the hest of our knowledge, information, and belief, set forth in Schedule IV. hereto the particulars of all the incumbrances affecting the said testator's real estate, and what part thereof such incumbrances respectively affect. 11. We have in the account marked B., now produced and shown to us, according to the best of our knowledge, information, and belief, set forth a f uU account of all the rents and profits of the said testator's, real estate which has come to our hands or to the hands of any of us, or to the hands of any person or persons by our order, or the order of any of us, or for our use, or the use of any of us, and the times _ when, the names of the persons from whom, on what account, in respect of what part of such estate the same have been received, and the times when the same became due, and also a like account of the disbursements, aHowanoes, and payments made by us, or any or either of us, in respect of the said testator's real estate, or the rents and profits thereof, and the times when, the names of the persons to whom, and the purposes for which, the same were made. 12. And we, each speaking positively for himself, and to the best of hia knowledge and belief as to other persons, further say that, except as appears in the said account marked B., we have not, nor has any of us, nor has any other person by our order, or the order of any of us, or for our use, or the use of any of us, possessed, received, or got in any rents or profits of the said testator's real estate, nor any money in respect thereof, and that the said account marked B. does not contain any item of disbursement, payment, or allowance, other than such as has actually been disbursed, paid, or allowed, as above stated. The FiEST Schedule above referred to. 1 . £50 cash in the house. 2. £100 cash at the testator's bankers, Messrs. A. and B. 3. £1,000 Consolidated £3 per cent, annuities, standing in the testator's name. 4. £10 due from John James, for half year's rent of house at , to Michaelmas, 1882. 5. £32: 6s. Sd., balanceremainingduefrom John Thomas on account of half year's rent of farm at , to Michaelmas, 1882. 6. £300, a debt due from Samuel Jones on a, bond, with interest from , at per cent. 7. A leasehold house situate at , held under a lease for a term of , which will expire on , at a rent of £ a year, underlet to James Evans for a term which will expire on , at a rent of £50 a year. 8. £25, half a year's rent due from the said James Evans to The Second Sohedtjlb above referred to. [The particulars to be set forth in the same manner as above.] The Thibd Sohbdulb above referred to. [To contain a short particular of the real estate.] The PoTJETH SoHBDULB above referred to. [To contain a short particular of the incumbrances, and showing what part of the above real estate is subject to each.] Forms of The supreme cotJRT, isss. 649 ■App. L. No. 12. Account of Personal Estate, being Account A. referred to in Form No. 11. A. In the High Court of Justice. Chancery Division. Mr. Justice [Title.) This account marked A. was produced and shown to A. B., C. D., and E. F., and is the account referred to in tiieir affidavit sworn this day of Before me [to be signed here by Commissioner or officer before lohom the affidavit is sworn]. Receipts. No. of Item. Date when Names of Persons from whom received. # On what Account received. Amount received. 1 2 3 i 18 . Evans and Co. . . John James . . . . Found in house. Balance at bankers. Half year's dividend on 2,000Z._ Zl. per cent. annuities due. Bond debt of 300?. and interest from to Bond debt of 300?. and interest from to £ s.d. 5 Samuel Jones . . 6 James Evans . . Half year's rent of lease- hold house due 7 WiUiam Williams . . Produce of sale of the above leasehold house. BiBBimSEllENIS. No. of Item. Date when paid or allowed. Names of Persons to whom paid or allowed. Tor what Purpose paid or allowed. Amount paid or allowed. 1 2 3 4 18 . James Price Messrs. A. & B. John George . . James Price Undertaker's biU for fu- neral. Expenses of probate. A debt due to him for medical attendance. Bond debt of 1,000?. and 25?. for interest there- on from to £ ». d. 650 App. L. FORMS OP THE SXIPREME COURT, 1883. No. 13. Account of Rents and Profits, being the Account B. referred to in No. J 1. B. In the High Court of Justice. Chancery Division. Mr. Justice {Title.) This account marked B. was produced and shown to A. B., C. J)., and E. E., and is the account referred to in their affidavit sworn this day of Before me {to be signed here hy Commissioner or officer hefm'e whom affidmit swont"]. Reoeipts. No. of Item. Bate TFlien received. Names of Persons from whom received. On wliat Account and in respect of wliat Part of the Estate received, and -when due. Amount received. 1 18 John James Half year's rent for farm in parish of , due One quarter year's rent of house at , due Same as No. 1, due £ s. d. 2 3 Thomas James John James No. of Item. Date when paid or allowed. Names of Persons to whom paid or allowed. For what Purpose paid or allowed. Amount paid or allowed. 1 2 3 18 ' Sun Insurance Office . . Thomas Carpenter .... James Eranois One year ' s insurance against fire, due Repairs at John James' farm. Income tax, half year due 10th October. £ ^. d. FORMS OP THE SUPREME COURT, 1883. 651 2 ^ fi^ §1 !g Si, .9.1- Is r—i 'to •SI «>: S1-S 1.1 ^ 8.9 =« Js JS O c (S • o E-i 1 OS m as . ''^ ^e paid to the said and , or one of them, or the execu- tors or admiiiistrators of them, or one of them, and unless they do pay the same, they, the said do grant, and each of them doth grant for himself, his heirs, executors, and administrators, that the said sum of shall he levied, recovered, and received, of and from them and each of them, and of and from all and singular the manors, messuages, lands, tenements, and hereditaments, goods and chattels, of them and each of them wheresoever the same shall or may be found. Witness our said Sovereign Lady Victoria, by tie Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Paith, and so forth, at the Royal Courts of Justice, the day of 18 . Whereas, by an order of the High Court of Justice made in a cause wherein are plaintiffs and defendants, and dated the day of It was ordered that a proper person should be appointed to receive [or that upon the above bounden first giving security he diould be appointed receiver of] the rents and profits of the real estate, and to collect and get in the outstanding personal estate of in the said order named. And whereas the judge to whom this cause is assigned hath [approved of the said ' as a proper person to he such receiver, and hath^ approved of the above bounden and as sureties for the said and hath also approved of the above written recognizance with the under- written condition as a proper security to be entered into by the said and pursuant to the said order and the general orders of the said Court in that behalf, and in testimony ol such approbation the chief clerk of the said judge hath signed an allowance in the margin hereof Now the condition of the above written recognizajioe is such that if the said do and shall duly account for all and every the sum and sums of money which he shall so receive on account of the rents and profits of the real estate, and in respect of the personal estate of the said , at such periods as the said judge shall appoint, and do and shall duly pay the balances which shall from time to time be certified to be due from bitn as tiie said Court or judge hath directed or shall here- after direct, then the above recognizance shall be void and of none effect, otherwise the same is to be and remain in fuU force and virtue. Takeu and acknowledged by the above-named, &o. App. L. No. 22.* Affidavit verifying Heceiver^s Report. In the High Court of Justice. Chancery Division. , Mr. Justice (Title.) I, , of , the receiver appointed in this cause, make oath and say as follows : 1. The account marked with the letter A. produced and shown to me at the time of swearing this my affidavit, and purporting to be my account of the rents and profits of the real estate and of the outstanding personal estate of , the testator [or intestate] in this cause, from the day of 18 , to the day of 18 , both inclusive, contains a true account of all and every sura of money received by me or by any other person or persons by my order or, to my knowledge or belief, for my use on account, or in respect of the said rents amd profits accrued due on or before the said day of on am aecoimt or in respect of the said personal estate, except what is included as received in my former accotmt [or accounts] sworn by me. 2. The several sums of money mentioned in the said account, hereby verified to have been paid and allowed, have been actually and truly so paid and allowed for the several purposes in the said account mentioned. 3. The said account is just and true in all and every the items and particulars therein contained, according to the best of my knowledge and belief. 4. W. X. and T. Z. , the sureties named in the recognizance, dated the of 18 , are both alive, and neither of them has become bankrupt or insolvent. M. UU * This form was substi- tuted by E. S. C, Oct. 1884, for that con- tained in the Rules of 1883. This is to accord with the order appointing the receiver. The day to which the account is made up. 658 ]rOEMS OP THE SUPREME COURT, 1883. App. L. , No. 23. Affidavit verifying Abstract. In the Higli Court of Justice. Ohanoery Division. Mr. Justice (nth.) I, A. B., of, &o., soKoitor for in this cause [or matter], make oath and say as follows : I have carefully examined and compared fhe abstract written on sheets of paper, now produced and shown to me at the time of swearing this affidavit, and marked with the letter A, with the several deeds and documents thereby purported to be abstracted. Such abstract is a true and correct abstract of the said deeds and documents, so far as such deeds and documents relate to the hereditaments referred to in an order made in this action [or matter] dated the day of No. 24. Affidavit verifying Engrossments of Deeds. In the High Court of Justice. Chancery Division. Mr. Justice (TitU.) I, A. B., of, &c. , make oath and say as follows : 1. I have carefully examined and compared the parchment writing now produced and shown to me at the time of swearing this affidavit, and marked with the letter A, with the draft or paper writing now produced and shown to me at the time of swearing this affidavit, and marked vnth the letter B, being the draft of the conveyance [or settlement, &o.] settled at the chambers of the judge to whom this cause [or matter] is assigned pursuant to the order made in this cause [or matter] dated 2. The said parchment writing is a true and correct transcript and engrossment of the said draft. No. 25. Originating Summons. In the High Court of Justice. Chancery Division. Mr. Justice In the matter of the estate of A. B., deceased. Between C. D. HaintiflE, and E. F. Defendant. Let E. F., the executor of the said A. B., attend at the chambers of Mr. Jxistioe ,- at the Royal Courts of Justice, at the time specified in the margin [or, at the foot] hereof, upon the application of 0. D., of , Esq., who claims to be a creditor [or, as the case may be'\ upon the estate of the above-named A. B., for an order for the ad m i ni stration of the personal [or real and personal] estate of the said A. B. Dated the day of 18 . (Seal.) This summons was taken out by , of , solicitors for the above-named C. D. The folhwmg note to be added to the original smnmons and when the time is altered by indorsement the indorsement to be referred to as below : — Note. — If you do not attend either in person or by your solicitor at the time and place above mentioned [or at the place above mentioned at the time men- tioned in the indorsement hereon], such order will be made and proceedings taken as the judge may think just and expedient. FORMS OP THE SUPREME COURT, 1883. 659 No. 26. App. L. Request to set down Cause for further Consideration. In the High Court of Justice. Chancery DiTision, Mr. Justice A. V. B. I request that this cause, the further consideration 'whereof was adjourned by order of the day of , may be set down for further consideration before Mr. Justice CD., plaiutifE's [or defendant's] solicitor. No. 27. Notice that Cause has been set down for further Consideration. In the High Court of Ji^tice. Chancery Diviaion. Mr. Justice A. V. B. Take notice that this cause, the further consideration whereof was adjourned by the order of the day of , was on the day of set down for further consideration before Mr. Justice for the day of Dated, &o. CD., Solicitor for To Mr. Solicitor for No. 28. Form of ordering Accounts and Inquiries. This Court doth order that the following accounts and inquiry be taken and made ; that is to say, 1 . An account of the personal estate not specifically bequeathed of A. B., deceased, the testator in the pleadings named, come to the hands of, &c. 2. An accoimt of the testator's debts. 3. An account of the testator's funeral expenses. 4. Aa account of the testator's legacies and annuities (if any), given by the testator's will. 5. An inquiry what parts (if any) of the testator's said personal estate are out- standing or undisposed of. And it is ordered that the testator's personal estate not specifically bequeathed be applied in payment of his debts and funeral expenses in a due course of adminis- tration, and then in payment of the legacies and annuities (if any) given by his wiU. (If ordered.) And it is ordered that the following further inquiries and aoooxmts be made and taken ; that is to say, 6. An inquiry what real estate the testator was seised of or entitled to at the time of his death. 7. An account of the rents and profits of the testator's real estate received by, &c. 8. An inquiry what incumbrances (if any) afieot the testator's real estate, or any and what parts thereof. (H Sale ordered.) 9. An account of what is due to such of the incumbrancers as shall consent to the sale hereinafter directed in respect of their incumbrances. 10. An inquiry, what are the priorities of such last-mentione'd incumbrances ? And it is ordered that the testator's real estate be sold with the approbation of the judge, &c., &c. And it is ordered that the further consideration of this cause be adjourned, and any of the parties are to be at liberty to apply as they may be advised. UTJ2 660 FORMS OF THE SUPREME COURT, 1883. App. M. * These rulea are repealed so fax as they are iaoon- sisteut with the Supreme Court Funds Rules, 1884, ante, p. 215. APPENDIX M.* Paimekt into and out of Couet. 1. Any party who intends to pay money into Court -will on request at the Bank of Engla,nd (Law Courts Branch), hereinafter called the Bank, be furnished with a form of request which must he filled up as hereinafter provided, and signed by such party or his solicitor. The money will then he received by the iBank, and an official receipt for the money will be given. Where the money is paid in upon a notice or pleading', such notice or pleading must be produced at the Bank at the time the money is paid in, and the receipt will be given on the margin thereof. 2. in filling up the request mentioned in the last preceding regulation, the party paying the money into Court shall enter thereon the letter, nimiber and short title of the action, and the name of the party by whom the payment is made, and also such one of the following statements as may be applicable to the circumstances under which the money is paid in, viz. : — (a) Where the money is paid in, under the provisions of Rule 5 of Order XXII., an entry in the following form : — A. Paid in in satisfaction of claim of above-named (name of party). (b) Where the money is paid in under the provisions of Rule 6 of Order XXII., an entry in the following form : — B. Paid in against claim of above-named (name of party), with defence, denying liability, (o) Where the money is paid in under the provisions of Rule 26 of Order XXXI., an entry in the follbwing form : — C. Paid in to " Security for Costs Account." (d) Where the money is paid in under an order or certificate, an entry in the fol- lowing form : — D. Paid in under order (or certificate) dated the day of Upon the money being paid in, an entry corresponding with the entry in the re- quest shall he made in the books of the Bank, and in the receipt given by the Bank for the money, whether such receipt be endorsed on a notice or pleading, or be a separate document. 3. Where a defendant has paid money into Court under an order, and desires to appropriate the whole or any part of such money to the whole or any specified por- tion of the plaintiff's claim, pursuant to Rule 11 of Order XXII., he or his solicitor shall lodge at the Bank the original receipted order, and a notice, entitled vrith the letter, number, and short title of the action, and in such one of the following forms as may be applicable to the case, viz. : — A. Take notice that £ of the money in Court herein, is appropriated by the above-named (name of party) to the satisfaction of claim of the above-named (name of party) . B. Take notice that £ of the money in Court herein, is placed by the above-named (name of party) against the claim of the above-named (name of party) with a defence, denying liability. Upon such notice being lodged at the Bank, an entry corresponding thereto shall be made in the books of the Bank, and the money mentioned in the notice shall thereupon, for the purposes of payment out, be subject, in all respects, to regula- tions i and 6. A record of such appropriation shall be made by the Bank on the original receipted order, and the Badk wiU give a receipt in the usual form for the money so appropriated. i. Where, upon the payment of the money into Court, the request contains a statement in the Form A. of regulations 2 and 3, unless an order restraining the payment out of Court has, prior to the issue of the cheque hereinafter mentioned, been lodged at the Bank, the money will be paid out on request to the plaintiff, or on his vmtten authority to his solicitor. 6. Where, upon the payment of the money into Court, the request contains a statement in tiie Form B. of regulations 2 and 3, the following regulations shall apply :— (a.) If the plaintiff accepts the sum paid in in satisfaction, he or his solicitor shall lodge at the Bauc a notice, entitled with the letter, number, and short title of tiie action, and in the following form : — "Take notice that the sum paid in herein has been accepted by the above- named [name of party] in satisfaction, and that I have given due notice of my acceptance thereof." Such notice shall be sufficient evidence to the Bank, of compliance by the plaintiff ' with all the conditions entitling him under Order XXII. to have the sum in question paid out to him, and such notice being lodged, the money will, on request, be paid out to the party mentioned in such notice, or on his written authority to his solicitor . (b.) Unless such a notice as is above mentioned is lodged at the Bank, the money FOE,MS OP THE SUPREME COURT, 1883. 661 will not be paid out except on production at the Bank of an order of the Add M Court, or a judge. 6. Where, upon the payment of the money into Court, the request contains a statement in the Form C. of regulations 2 and 3, if, after the cause or matter has heen finally disposed of, the party who paid the money in is entitled, under Order XXXI., Rule 27, to have the money paid out to him the taxing officer shall, on the taxation of tiie costs, give to such p&rty a certificate that he is so entitled ; and upon production of such certificate at the Bank, unless an order restraining the pay- ment out of Cpurt has previously been lodged at the Bank, the money mentioned in the certificate, will on request, be paid out to the party mentioned in the certificate as entitled thereto, or on his written authority to his solicitor. Except as above provided, where, upon the payment of the money into Court, the request contains a statement in either of the Eorms C. or D., the money will not be paid out except on production at the Bank of an order of the Court or a judge. 7. On bespeaking payment out of Court of money paid io..Qu a notice or pleading, the original receipted notice or pleading must be lodged at the Bank. 8. Where money is to be paid out under an order or authority, on bespeaking the payment out the order or authority must be lodged at the Bank, and after having been examined by the Bank must be filed in the Eiling Department of the Central Office; and a certificate of its having been so filed must be lodged at the Bank on receiving the cheque. 9. Every authority for the payment of money out of Court must be attested by a witness, whose residenog and description must be added to his attestation. 10. Each sum paid into Court shall, as regards its payment out of Court, be deemed (when the time for payment out arrives) to be money standing to the credit of the Masters. 11. All payments out shall be authorized by cheques upon the Bank, filled in by the Bank, and drawn in favour of the party claiming to receive the money. One clear day shall be allowed for the preparation pf the cheque and it shall be signed by one of the Masters, and made payable to order, crossed specially or generally, and marked "not negotiable." 12. Whenever the cheque is required to be drawn in favour of any person, not a solicitor of the Supreme Court, tiie Bank may require him to be identified by a soUoitor. If such person shall be represented in the cause or matter by a solicitor, the identifying solicitor must be such solicitor ; and in case a solicitor on requiring the cheque to be made payable to himself, or on identifying any person receiving such cheque, shall not be known at the Bank, the Bank may, at their discretion, require, on delivery of the cheque, the production by such solicitor of his annual certificate. 13. Where an order directs that money paid into Court is to be invested, the Master to whom the cause or matter is assigned, shall, in the case of an investment, direct the Bank to invest such money in the securities mentioned in the order, and to pay the money necessary for such investment to the Government broker, conditionally, upon his causing the securities to be transferred to the credit of the Masters or persons named in the order or direction ; and the said direction shall specify the title of the cause or matter to the credit of which the securities purchased, is to be placed in the books of the Bank. 14. The Bank, on receipt of a direction to invest, shall cause the securities mentioned therein to be purchased in the name of the Masters, or other persons mentioned in the direction, and shall receive and retain the certificate issued by the body corporate, or company, in whose books the securities purchased are registered, and the said certificate shall be sufficient evidence for all purposes that the purchase of such securities has been actually made ; and the securities so purchased shall be placed in the books of the Bank to the same credit as that to which the money was paid in, unless the order of the Court or a judge otherwise directs. 15. The dividends on the securities purchased, shall, as and when the same respectively are received, or become due, be placed in the books to the same credit as that to which the money was originally paid in. 16. When securities are to be sold, the Master to whom the cause or matter is assigned shall direct the Bank to receive the proceeds of the sale, and place the same to the credit of such cause or matter, and the Bank shall, upon receipt of the neces- sary direction, cause the necessary sale to be carried out and the proceeds of such sale to be placed to the credit of the cause or matter mentioned in the direction. 17. The books kept by the Bank relating to payments of money into and out of Court shall be open at aU times for inspection by the Masters ; but no other person, not belonging to the Bank, shaJl be entitled to inspect such books without the written authority of a master. 18. In any case in which an affidavit is required, an office copy must be pro- duced at the Bank. AU forms to be used under these regulations shall be framed by the Masters, with the approval of the Grovemor and Company of the Bank of England. Lower Scale. i. £ ». d. 4 6 8 5 8 6 8 8 6 8 4 1 1 10 i 14 8 6 8 4 1 4 8 6 8 4 13 4 7 4 1 4 8 6 8 4 7 662 POEMS OP THE SUPREME COURT, 1883. App. N. "^ APPENDIX N. COSTS. Higher Scale. Weitb, StnoiONSEB, AND 'Waeeaiits. £ t. Writ of summons for the oommenoemeiit of any action 13 And for indorsement of claim, if special , 6 Concurrent writ of summons , 6 Renewal of a ■writ of summons 6 Notice of a writ for service in lieu of writ out of jurisdiction. . 5 Writ of inquiry , 1 1 Writ of mandamus 1 1 Or per folio 1 Writ of subpoena ad testificandum or duces tecum 6 And if more than four folios, for each folio beyond four , . . , 1 Writ or writs of subpoena ad testificandum for any number of persons not exceeding three, and the same for every ad- ditional number not exceeding three 6 Writ of distringas, pursuant to stat.' 5 Vict. c. 5 13 Writ of execution, or other writ to enforce any judgment or order 10 And if more than four foUos, for each folio beyond four 1 Procuring a writ of execution or notice to the sheriff, marked with a seal of renewal 6 Notice thereof to serve on sheriff 5 Any writ not included in the above 10 These fees include all indorsements and copies, or prse- oipes, for the officer sealing them, and attendances to issue or seal, except where otherwise provided, but not the Court fees. Summonses to attend at judges' chambers , , 6 Or if special, at taxing officer's discretion, not exceeding. ... 1 1 Copy for the judge, when required 2 Or per folio Originating summons for proceedings in chambers in the Chancery Division at taxing officer's discretion, not ex- ceeding 1 1 1 1 And attending to get same and duplicate sealed, and at the proper office to file duplicate and get copies for service stamped , 13 Copy for the judge 2 Or per folio Indorsing same and copies under Ord. LV. r. 22 6 Seetioes and Notices. Service, or filing in lieu of service, of any writ, summons, warrant, interrogatories, petition, order, or notice on a party who has not entered an appearance, and if not authorized to be served by post ,. 5 6 If served at a distance of more than two miles from the nearest place of business, or office of the soUoitor serving the same, for each niile beyond such two miles therefrom 10 10 Where, in consequence of the distance of the party to be served, it is proper to effect such service through an agent (other than the London agent}, for correspondence in addition ., 7 7 Where more than one attendance is necessary to effect service, or to ground an application for substituted service, such further allowance may be made as the taxing officer shall think fit. Por service out of the jurisdiction such allowance is to be made as the {axing officer shall think fit. Service wh^e an appearance has been entered on the soH- oitor or party Q 2 6 2 6 Or if authorized to be served by post 16 16 8 3 13 4 2 4 4 4 13 4 2 4 4 8 6 8 FOEMS OF THE SUPREME COURT, 1883. 663 Higher Scale. Lower Scale. Add K £ s. d. £ «. d. ^^' Where any writ, order,^ and notice, or any two of them, have to be served together, one fee only for service is to be allowed. In addition to the above fees, the following allowances are to be made : — As to writs, if exceeding two folios, for copy for service, per folio beyond such two i i As to summons to attend at the judges' chambers, for each copy to serve 2 1 Or per folio ,., i 4 As to notices in proceedings to wind up companies, for pre- paring or filling up each notice to creditors to attend and receive debts, and to contributories to settle list of con- tributories 1 1 And for preparing or filling up each notice to contributories to be served with a general order for a call, or an order for payment of a call 1 1 And for drawing notice to be served on contributories or creditors of a meeting, per foUo 1 1 For each copy of the last- mentioned notice to serve, per folio . 4 4 For preparing or filling up for service in any other cause or matter, each notice to Creditors to prove claims, and each notice that cheques may be received, specifying the amount to be received for principal xmd interest, and costs, if any .010 010 For preparing notice to produce on the trial or hearing of an action, or notice to admit 7 6 5 If special or necessarily long, such allowance as the taxing officer shall tTiinlr proper, not exceeding per foUo , 1 8 And for each copy, such allowance as the taxing officer shall think proper, not exceeding per folio 4 4 For preparing notice of motion ■ 6 3 Or per folio 1 1 Copy for service 1 1 Or per foHo 4 4 For preparing any necessary or proper notice, not otherwise provided for, or any demand, pursuant to Ord. VII. rr. 1 and 2 1 6 1 6 Or if special, and necessarily exceeding three folios, for pre- paring same, for each folio beyond three 1 1 And for each copy for service, per foKo, beyond such three . ■ 4 4 Copies for service of interrogatories and petitions, and of orders with necessary notices (if any) to accompany, per foUo 004 004 Except as otherwise provided, the allowances for services include copies for service. Where notice of filing affidavits is required, only one notice is to be allowed for a set of affidavits filed, or which ought to be filed together. In proceedings to wind up a company, the usual charges relating to printing shall be allowed in lieu of copies for service, where the fee for copies would exceed the charges for printing, and amount to more than 31. Where any appointment is or ought to be adjourned, service of a notice of the adjournment, or next appointment, is not to be allowed. Appbaeahoes. Entering any appearance 6 8 6 8 If entered at one time, for more than one person, for every defendant beyond the first 2 1 If a person appearing to a writ of summons to recover land limits his defence by his memorandum of appearance, in addition to the above 6 8 6 8 Instettotions. To sue or defend 13 4 6 8 For statement of claim or special case 2 2 13 4 664 FORMS OF THE SUPREME COURT, 1883. Apt) N " Higher Scale. Lower Scale. ""' £ 8. d, £ 8. d. For indorsement of writ of summons when no further statement of claim 1 1 13 4 For originating summons 6s. 8^., or not to exceed 1 1 1 1 For defence or further defence 13 4 6 8 For counter-claim 13 4 6 8 For reply when defendant sets up a counter-claim 110 13 4 For reply or further reply in any other case with or without joinder of issue .- 13 4 6 8 For confession of defence 13 4 6 8 For joinder of issue without other matter 013 4 6 8 For special petition, any other pleading (not being a sum- mons), and interrogatories for examination of a party or witness 13 4 6 8 To amend any pleading 13 4 6 8 For affidavit in answer to interrogatories, and other special affidavits 6 8 6 8 To appeal against order of Court or judge, and to appear thereon 1 1 13 4 To add parties by Older of Court or judge 13 4 6 8 For counsel to advise on evidence when the evidence in chief is to be taken oraUy 6 8 6 8 Or not to exceed 1 1 1 1 For counsel to make any application to a Court or judge where no other brief 10 6 8 For brief on motion for special injunction 1 1 0' 13 4 For brief on hearing or trial of action upon notice of trial or notice for judgment given, whether such trial be be- fore a judge, with or vnthout a jury, or before an official or special referee, or on trial of an issue of fact before a judge, commissioner, or referee, or on assessment of da- mages . . ; , 2 2 1 1 For such brief, and for brief on the hearing of an appeal when witnesses are to be examined or cross-examined, such fee may be allowed as the taxing officer shall think fit, having regard to aU the circtunstances of the case, and to other allowances, if any, for attendances on witnesses and procuring evidence. The fees for instructions for brief are to apply to a hearing on further consideration in Court only where an order for accounts and inquiries was made without such hearing or trial, as above mentioned. Deawino PiiBabinqs and othee Dooumbnts. Statement of claim 1 1 Or per folio 1 Defence 10 Or per f oUo , 1 Ootmter-claim , . , 1 1 Or per folio 1 Reply, with or without joinder of issue, confession of defence, joinder of issue without other matter, and any other plead- ing (not being a petition or summons) and amendments of any pleading 10 Or per folio ,- 1 Particulars, breaches and objections, when required, and one copy to deliver 6 8 5 Or such amount as the taxing officer shall think fit, not ex- ceeding per folio 1 8 If more than one copy to be delivered, for each other copy, per folio 4 4 Special case, whether original or in an action, affidavits in answer to interrogatories and other special affidavits, special petitions and interrogatories, per folio 1 1 Brief, on trial or hearing of cause, issue of faqt, assessment of damages, examination of witnesses, special case and petition before a Court or judge, sheriff, commissioner, referee, examiner, or officer of the Court, when necessary 10 1 5 1 3 1 6 1 POEMS OF THE SUPREME COURT, 1883. Higher Scale. Lower Scale. a_„ -m- £ 3. d. £ s. d. ^PP--"- and proper in addition to pleadings, including necessary and proper observations, per folio , 1 1 Brief on application to add' parties 10 6 8 Or per folio 1 1 Brief on further consideration, per dieet of 10 folios 6 8 6 8 Accounts, statements, and other documents for the judges' chambers, when required, not exceeding per folio 1 8 Advertisements to be signed by judge's clerk, including attendance therefor , .,, 13 4 6 8 Bills of costs for taxation, including copy for the taxing ofl5cer 8 8 Copies. Of pleadings, briefs, and other documents where no other provision is made, at per folio i 4 Where, pursuant to rules of Court any pleading, special case or petition of right, or efvidence is printed, the soUeitor of the party printing shftU be allowed for a copy for the printer (except when made by the officer of the Court), at per folio 4 4 And for examining the proof print, at per foUo 2 2 And for printing the amount actually and properly paid to the printer, not exceeding per folio 1 1 And in addition for every 20 beyond the first 20 copies, at per folio 1 1 And where any part shall properly be printed in a foreign language, or as a fao-simile, or in any unusual or special manner, or where any alteration in the document being printed becomes necessary after the first proof, such further allowance shall be made as the taxing officer shall think reasonable. These allowances are to include all attendances on the printer. The solicitor for a party entitled to take printed copies shall be allowed, for such number of copies as he shall neces- sarily or properly take, the amount he shall pay therefor. In addition to the allowances for printing and taking printed copies, there shall be allowed for such printed copies as may be necessary or proper for the following, but for no other purposes (videlicet) : Of any pleading for delivery to the opposite party, or filing in default of appearance Of any special case for filing Of any petition of right for presentation, if presented in print, and for the solicitor of the Treasury, and service on any party . , , Of any pleading, special case, or petition of right, for the use of the Court or judge Of any affidavit to be sworn to in print And of any pleading, special case, petition of right, or evidence for the use of counsel in Court, and in country agency causes when proper to be sent as a close copy for the use of the country solicitor, at per folio , 3 2 Such additional allowances for printed copies for the Court or judge, and for counsel, are not to be made where written copies have been made previously to printing, and are not in any case to be made more than once in the progress of the cause. Close copies, whether printed or written, are not to be allowed as of course, but the allowance is to depend on the pro- priety of making or sending the copies, which ia each case is to be shown and considered by the taxing officer. Inserting amendments in a printed copy of any pleading, special case, or petition of right, when not reprinted 5 I OrperfoUo 4 4 666 POEMS OP THE SUPREME COURT, 1883. App. N. Higher Scale. Lower Scale. — . £ I. d. £ t. d. Febusaxb. Of statement of claim, defence, reply, joinder of issue, and other pleading (not being a petition in a pending cause or matter, or summons other than an originating summons), by the solicitor of the party to whom the same are delivered 13 4 6 8 Or per folio 4 4 Of amendment of any such pleading in writing 6 8 6 8 Or per folio 4 4 If same reprinted 13 4 6 8 Or per folio of amendment 4 4 Of interrogatories to be answered by a party by his solicitor. 13 4 6 8 Or per folio 4 4 Of special case by the solicitor of any party except the one by whom it is prepared ,, 13 4 6 8 Or per folio 4 4 Of copy order to add parties, notice of defendant's claim against any person not a party to the action under Ord. XVI. r. 49, and of defendant's defence and counter- claim served on a person not a party under Ord. XXI. r. 13, by the solicitor of the party served therewith, and in these several cases the perusal of the plaintifi's statement of claim is also to be allowed unless the solicitor has been previously allowed such perusal , ,. , , 13 4 6 8 Or per folio 4 4 Of notice to produce on trial or hearing of action, and notice to admit by the solicitor of the party served 13 4 6 8 Or (if to admit facts) under Ord. XXXII. r. 4, per folio .... 1 010 Of affidavit in answer to interrogatories by the solicitor of tho party interrqgating, and of other special affidavits by the solioitor of the party against whom the same can be read, per folio -. 4 4 Attendakoes. To obtain consent of next friend to sue in his name or of a. guardian sf^ 2i^«OT ' 13 4 6 8 To deliver, or file in lieu of delivery, any pleading (not being a petition or summons) and a special case 6 8 3 4 To inspect, or produce for inspection, documents pursuant to a notice to admit ■ 13 Or per hour 6 To examine and sign admissions 13 To inspect, or produce for inspection, documents referred to in any pleading, notice in lieu of pleading, or affidavit, pursuant to notice under Ord. XXXI. r. 14 6 Or per hour 6 To obtain or give any necessary or proper consent 6 To obtain an appointment to examine witnesses 6 On examination of witnesses before any examiner, commis- sioner, officer, or other person ... . ■ D 13 Or according to circumstances, not to exceed 2 2 Or if without counsel, not to exceed '. 3 3 On deponents being sworn, or by a solicitor or his clerk to be sworn, to an affidavit in answer to interrogatories or other special affidavit 6 On a summons at judges' chambers 6 Or according to circumstances, not to exceed 1 1 In the Chancery Division, all allowances for attending at the judges' chambers are to be by the judge or chief derk as heretofore. To file chief clerks' and taxing masters' certificates, and get copy marked as an office copy i 6 8 6 8 On counsel vrith brief or other papers — If counsel's fee one guinea , 6 If more and under five guineas 6 If five guineas and under twenty guineas 13 If twenty guineas 1 1 If forty guineas or more 2 2 4 6 8 8 6 8 4 6 8 8 6 8 8 6 8 8 6 8 8 6 8 4 13 4 2 2 3 3 8 6 8 8 6 8 1 1 8 3 4 8 6 8 4 6 8 13 4 FORMS OF THE SUPREME COURT, 1883. 667 Higher Scale. Lower Scale, Arm N £ s. d. £ s. d. -"^PP-^"- On consultation or conference -with counsel 13 4 13 4 To enter or set down action, special case, or appeal, for hearing or trial 6 8 6 8 In Court on motion of course and on counsel and for order ., 013 4 010 To present petition for order of course and for order 013 4 010 In Court on every special motion, each day ,,,,., 13 4 068 On same -when heard each day 13 4 13 4 Or according to circumstances, not to exceed 2 2 2 2 On special case, or special petition, or application adjourned from the judges' chambers, when in the special paper for the day, or likely to be heard 10 6 8 On same when heEtrd 1 1 13 4 Or according to circumstances, not to exceed 2 2 2 2 On hearing or trial of any cause, or matter, or issue of fact, in London or Middlesex, or the town where the solicitor resides or carries on business, whether before a judge with or without a jury, or commissioner, or referee, or on assessment of damages, when in the paper 010 010 When heard or tried 110 13 4 Or according to circumstances,. not to exceed 3 3 3 3 When not in London or Middlesex, nor in the town where the solicitor resides or oSrries on business, for each day (except Sundays) he is necessarily absent 3 3 3 3 And expenses (besides actual reasonable travelling expenses) each day, including Sundays 1 1 1 1 Or it the solicitor has to attend on more than one trial or assessment at the same time and place, in each case Ill 6 1 1 The expenses in such case to be rateably divided. To hear judgment when same adjourned 13 4 6 8 Or according to circumstances 1 1 13 4 To deliver papers (when required) for the use of a judge prior to a hearing , 6 8 6 8 If more than one judge. . .._. 13 4 13 4 On taxation of a bill of costs 6 8 6 8 Or according to circiimstances, not to exceed 2 2 2 2 Unless the same shall necessarily occupy so much time that the taxing officer shall consider such amount inadequate, in which case he may allow such further fee as he shall think proper. In actions and matters for purposes within the cognizance of the Court of Chancery before the Principal Act came into operation, such further fee as the taxing officer may think fit, not exceeding the allowances heretofore made. To obtain or give an undertaking to appear 6 8 6 8 To present a special petition, and for same answered 6 8 6 8 On printer to insert advertisement in Gazette 6 8 6 8 On printer to insert same in other papers, each printer 6 8 — Or every two — 6 8 On registrar to certify that a cause set down is settled, or for any reason not to come into the paper for hearing 6 8 6 8 For an order drawn up by chief clerk, and to get same entered 6 8 6 8 On counsel to procure certificate that cause proper to be heard as a short cause, and on registrar to mark same 6 8 6 8 To mark conveyancing counsel or taxing master 6 8 6 8 For preparing and di-awing up an order made at chambers in proceedings to wind up a company and attending for same, and to get same entered 13 4 13 4 And for engrossing every such order, per folio 4 4 Note. — An order of course means an order made on an ex parte application, and to which a party is entitled as of right on Ms own statement and at his own risk. To examine an abstract of title with deeds, per hoar, in a cause or matter 10 10 To produce deeds for such purpose, per hour 6 8 6 8 Oaths and Exhibits. Commissioners to take oaths or affidavits. For every oath, declaration, affirmation, or attestation upon honour in Lon- don or the country 1 6 1 6 668 FORMS OF THE SUPREME COURT, 1883. App. 27, Higlier Scale. Lower Scale. 11 £ t. d. £ s. d. The solicitor for preparing each exhibit in town or oouutry. . 10 10 The commissioner for mariring each exhibit 10 10 Tbeii Fees. For every term commencing on the day the sittings in London and Middlesex of the High Court of Justice commence, and terminating on the day preceding the next such sittings, in which a proceeding in the cause or matter by or affecting the party, after appearance entered, shall take place 15 15 And further, in country agency causes or matters, for letters .,060 060 Where no proceeding in the cause or matter ia taken which carries a term fee, a charge for letters may be allowed, if the circumstauceg require it. In addition to the above an allowance is to be made for the necessary expense of postages, carriage and transmission of documents. APPENDIX 0. (1.) The several Rules, Orders, and Forms contained in the Schedule and Appendix to the Supreme Court of Judicature Act (1873), Amendment Act. (2.) The additional Rules to the Judicature Act, 1875. (S.) The Rules of the Supreme Court, December, 1875. (4.1 The Rules of the Supreme Court, February, 1876. (5.) The Rules of the Supreme Court, June, 1876. (6.) The Rules of the Supreme Court, December, 1876. (7.) The Rules of the Supreme Court, May, 1877. (8.) The Rules of the Supreme Court (Costs). (9.) The Rules of the Supreme Court, June, 1877. (10.) The Rules of the Supreme Court, November, 1878. (II.) The Rules of the Supreme Court, March, 1879. (12.) The Rules of the Supreme Court, December, 1879. (13.) The Rules of the Supreme Court, April, 1880. fl4.) The Rules of the Supreme Court, May, 1880. (15.) Rules of the Supreme Court, May, 1883. (16.) The RegulsB Generales of Hilary Term, 1853, dated Uth January, 1863, (except the Rules as to juries). (17.) Regiilse G-enerales, as to pleading made by the judges in pursuance of the Common Law Procedure Act, 1852, dated the 10th of May, 1853. (18.) The Rules under the 6th section of the Debtors Act, 1869. (19.) The Chancery Consolidated General Orders of 1860. (20.) The Chancery Orders dated — March 6th, 1860. March 20th, 1860. February 1st, 1861. February 6th, 1861. July 13th, 1861. January 1st, 1862. May 16th, 1862. May 27th, 1865. May 7th, 1866. November 22nd, 1866. April 17th, 1867, (21.) The Ctancery Regulations, dated August 8th, 1857, and March 15th, 1860. (22.) The Rules, Orders, and Regulations for the High Court of Admiralty of Enir.. land, 1859 and 1871. (Signed) Selbobne, C. COLEBIDaE, C. J, W. B. Bbett, M. R. James Hannen, Nath. LmBi^T, L. J. Edw. Fey, L. J. C. E. Pollock, B. Henet Cotton, L. J., H. MANisiy, J. (Signed in respect of Rules as to sittings of Court of Appeal.) FEES AND PEEOENTAaES. 669 ORDER AS TO THE FEES AND PERCENTAGES which are required to be taken in thb supkeme oourt of Judicature by Means of Stamps. [4th July, 1884. Whereas by sect. 26 of the Supreme Court of Judicature Act, 1875, it is proyided that the fees and percentages appointed to he taken in the High Court of Justice and in the Court of Appeal, and in any Court to he created by any Commission, and in amy office which is connected with any of those Courts, or in which any business connected with any of those Courts is conducted, shall, except so far as may be otherwise directed, be taken by means of stamps ; and further, that such staonps shall be impressed or adhesive, as the Treasury may from time to time direct ; and that the Treasury, with the concurrence of the Lord Chancellor, may from time to time make such rules as may seem fit for publishing the amount of the fees and regulating the use of such stamps, and particularly for prescribing the application thereof to documents from time to time in use or required to be used for the purposes of such stamps, and for ensuring the proper cancellation of such stamps, and for keeping accounts of such stamps. Now, we, the undersigned, being two of the Lords Conunissioners of Her Ma- jesty's Treasiuy, do, witk the concurrence of the Lord Chancellor, hereby give notice, and order and direct : — 1. That from and after the date at which this Order shall come into operation the stamps used for denoting the said fees and percentages shall be of the character, and be applied and otherwise dealt with in the manner, prescribed in the schedule hereto. 2. That the adhesive stamps at present in use in the Supreme Court of Judicature shall continue to be used so long as they are supplied by the Commissioners of Tuland Eevenue. 3. That in any case in which a deposit of stamps is required, pursuant to the Order as to Supreme Court Eees, 1884, such deposit shall be made in the manner provided by such Order. THE SCHEDULE above referred to. The ofBoial forms, with impressed or adhesive stamps (as the case may be), required in any Court or Office of the Supreme Court, in respect of any proceedings herein referred to, may be obtained at the Inland Revenue Offices, Royal Courts of Justice. Forms and stamps for use in the Principal Probate Registry (which except for searches are all adhesive), can be purchased from the licensed vendors at Somerset House. Writs, Commissions and Warrants. On sealing a writ of sum- mons for commencement of an action On sealing a, concurrent, renewed, or amended writ of summons for commencement of an ac- tion On sealing a notice for ser- vice under Ord. XVI. r. 48 On sealing a writ of man- damus On sealing a writ of sub- poena not exceeding three persons On sealing a writ of execu- tion, a subpoena pursuant to the Court of Probate Act, 1858, B. 23, and every other writ Document to be Stamped. Writof sum- Sfotioe Praecipe left > at time of issuing writ Cliaracter of Stamp to be used. Impressed. Impressed or adhesive. Impressed, adhesive in ProbateRe- gistry. Bee^ations and Observationa. 670 PEES AND PERCENTAGES. Document to be Stamped. Character of Stamp to be used. Be&roIationB and Observationfl. On sealiag or issuing any Sunmions .... Impressed. originating summons. On amending same Prsecipe Adhesive. On sealing or issuing a sum- Summons .... Impressed or mons for directions under adhesive. Ord. XXX. On sealing or issuing any Summons or Impressed or other summons or taxing warrant. adiesive. master's -warrant. On filing a notice to have a '^ reference to an Admiralty registrar placed in the list for hearing . . ; ^Notice .... Impressed. On a notice in Admiralty actions pursuant to Ord. LXVII. r. 10 Commission , . Impressed. On sealing or issuing a commission to take oaths or affidavits in the Su- preme Court. 'The commission or the copy of petition to he written on im- On every other commission Commission . . Impressed, ad- pressed paper, or hesive iaPro- , the document to he hate Registry ^ produced at the On marting a copy of a Copy of petition Impressed. Inland Revenue, petition of right for ser- Royal Courts of vice. Justice, to be _ stamped. Appearances, The fee payable on entering or amending an appearance shall be denoted by an impressed stamp on the form of memorandum as prescribed by the Appendix to the Rmes of the Supreme Court, 1883, and where the appearance of more than one person is entered by the same memorandum, the fees for all persons beyond the first shall be denoted by means of impressed stamps. Forms of memorandum of appearance with the impressed stamp for one or more defendants wiU be sold at the Inland Revenue Office, Royal Courts of Justice. Copies. Document to be Stamped. Character of Stamp to be uBed. On a copy of a written deposition of a witness to enable a party to print the same. On examining a written or printed copy, and marking or sealing same as an office copy. On mating a copy, and marking same as an office copy. On a copy in a foreign language .... On a copy of a plan, map, section, drawing, photograph, or diagram. On a printed copy of an order, not being an office or certified copy. Copy Copy Copy Copy Prsecipe or copy. Copy Impressed or adhesive. Impressed or adhesive. Impressed or adhesive. Impressed or adhesive, linpressed or adhesive. Impressed or adhesive. FEES AND PERCENTAGES. 671 Attendances. The fees payable under this heading shall he denoted either by an impressed or adhesive stamp on the subpoena, notice or other document requiriag the attendance of the ofSoer. Oaths, §0. On taking an affidavit or an afBxmation or attestation upon honour in lieu of an affidavit or a declaration, except for the purpose of receipt of dividends from the Paymaster-G-eneral. Document to be Stamped. Affidavit or other docu- ment an- s w e r i n g thereto. Character of Stamptobeuaed. Impressed adhesive. -Eegulations and Observatjons. DoeumeiLts to be Stamped and Character of Stamp to be used. Iterations and Observations. And in addition thereto, for each exhibit therein re- ferred to and required to be marked. Staoups to be impressed or adhesive on affidavit. The amount of should be marked on the office copy. Filing. Document to be Stamped. Character of Stamp to be used. E«gulations and Observations. On filing a special case or petition of right. On filing, except in Admi- ralty actions, an affidavit, deposition, or set of de- positions (including any exhibits annexed to any such affidavit or deposi- tion), statement of claim in default of appearance, official and special re- ferees' certificates, peti- tion, preliminary act, submission to arbitration, awaid, warrant of attor- ney, cognovit, bail satis- faction piece, bond, vmt of execution with return, and power of attorney, and every other proceed- ing in a probate action or in a, divorce or other matrimonial cause or matter required by Act of Parlianient, general order, or order in the action, cause, or matter to be filed in the Princi- pal Probate Kegistry. Special case, petition of right, orprsB- cipe. Document filed Impressed , . , , Impressed adhesive. Where practicable stamp to be on spe- cial case or petition of right, and in other cases on prse- eipe filed. 672 PEES AND PEECENTAGES. On filing a solieme pvirsuant to the statute 30 & 31 Vict. 0. 127, or the Liqiii- dationAct, 1868. On filing scripts in a pro- bate action or on deposit- ing, pursuant to an order in any cause or matter, any documents for safe custody or production. On a receipt for any docu- ment or documents to ■whicli the two last fees apply, when delivered out, or for any other document or documents when deHvered out of the Principal Probate Regis- try. On filing an affidavit and notice under Ord. XLVI. r. 4. On every minute in Ad- miralty actions pursuant to Ord. LXVI. r. 8, for everyinstrument or docu- ment to which the minute relates (other than an exhibit, or any instru- ment or document pre- viously issued from the registry or the marshal!' s On filing a bill of sale and affidavit therewith. On filing under the Bills of Sale Acts, 1878 and 1882, any other document. On filing an affidavit of re- registeation of a bill of sale. On filing a fiat of satisf ac- tion. Document to be Stamped. Scheme Affidavit order. Receipt Impressed. Adhesive. Adhesive. Affidavit Minute , Bill of sale Document , Affidavit . Fiat Character of Stamp to be used. Beeiilations and Observatioiis. Impressed. Impressed or adhesive. Impressed. Impressed. Certifieatea. Docmuent to be Character of Eegulations'and Obserrations. Stamped. Stamp tt) be used. On a certificate of appear- Certificate , . . . Impressed or ance or of a pleading, adhesive. affidavit, or proceeding having been entered, filed, or taken, or of the negative thereof, includ- ing certificate for use ia a foreign country, and certificate of proceedings pursuant to Ord. LXI. r. 24. PEES AND PERCENTAGES. 673 Searches aiid Inspections. The fees on searclies and mspeotions shall be taken by means of impressed stamps on a form of application -whicli -will be issued and sold at the Inland Revenue Office, Royal Courts of Justice; or, for the Principal Probate Registry, at Somerset House. Examination of Witnesses. The fees under this heading may still be denoted by means of adhesive stamps, which may be affixed either to the deposition or to the order or memorandum of appointment for an examination. Searing. Document to be Stamped. Character 'of Stamp to be used. Begnilatious and ObBervations. On entering or setting down, or re-entering or resetting down, an ap- peal to the Court of Ap- peal, or a cause or matter for trial or hearing in any Court in London or Middlesex, or at any Assizes, including hear- ing or further considera- tion when no fee was paid on the original hear- ing, whether on summons adjourned from chambers or otherwise, and in- cluding special case, a petition in a divorce or matrimonial cause or matter by which a pro- ceeding is commenced, and petition of right, but not any other peti- tion, nor any other sum- mons adjourned from chambers On entering directions of the judge at a trial and certi^Tng same if re- quired. On writing for the attend- ance of Trinity Masters or other assessors on the hearing of an Admiralty action. On answering and setting down for hearing in Court a petition by which any proceeding is commenced on any other petition. In the Chan- cery Regis- trar's Office, on forms providedfor the purpose At offices of Associates on copy of pleadings . . At all other offices of the High Court or Court of Appeal on praecipe . . Certificate , Prsecipe , Petition , > Impressed. Impressed or aidhesive. or adhesive in ProbateRe- gistry. Impressed or adhesive. Impressed. 674 FEES AND PERCENTAGES. Judgments, Decrees, and Orders. Document to be Character of Begulations and Observations. Stomped. Stamp to be used. On drawing up and enter- Judgment, de- Stamp to be ing a judgment, decree. cree, or impressed on or order, whether on the order. the judg- original hearing of a ment or order cause or on further con- except at the sideration, including a CrownOfaoe, cause conunenced by where adhe- summons at chambers, sive stamps and an order on the hear- may for the ing of a special case or present be petition, and any order also ad- by the Court of Appeal mitted, but. or any other order or as far as judgment. practicable, a praecipe, with an impressed stamp, should in all cases be used. Ad- hesive stamps to be used in the Princi- pal Probate Registry. On signing a note or memo- Note or memo- Impressed or randum of an order, pur- randum. adhesive. suant to Ord. LII. r. 14, when required for pro- duction, where no order is drawn up. On a memorandum to enter Memorandum . Impressed. an order nunc pro tunc. For copy of a plan, map. Copy Impressed or Where an adhesive section, drawing, photo- adhesive. stamp would damage graph, or diagram re- the copy, a praecipe quired to accompany any with the impressed order. stamp should be used. Proceedmgs at Judge's Chambers or before a Master, Segistrar, District Registrar or Official Referee. The fees payable on these proceedings shall be paid in the manner provided by the order as to Supreme Court Eees, 1884, either by impressed or adhesive stamps, and where any such fees become due and payable upon making a certificate or order they shall be impressed or attached on the certificate or order. When any such fee is impressed or attached on an order, the officer who enters the order shall note on the entry the amount of the fee appearing on the order ; and where any such fee is impressed or attached on a certificate the amount thereof shall ,be noted on every office copy thereof. Taxation of Costs. Document to be Stamped. Character of Stamp to be used. Eegulations and Observations. For taxing a bill of costs . . BUI Impressed or In any ease in which adhesive. the fees have not been paid by stamps on the bin of costs, and a certificate is used, the fee to be denoted byimpressed stamp on the certi- ficate. For a certificate of the result Certificate .... Impressed. FEES AND PERCENTAGES. 675 On Proceedings in the Fay Office of the Supreme Court. Document to be Stamped. Character of Stamp to be used. Begulationa and Observations. On a certificate of the amount and description of any money, funds, or secnrities, including' the request therefor. On a transcript of an ac- count for each opening, including the request therefor. On a request to the Pay- master, Bank of Eng- land, or a Kegistrar* of the Probate, Divorce, and Admiralty Division (un- less otherwise provided), for any of the f oUowiag purposes : paying, lodg- ing, transferring, or de- positing money, funds, or securities in Court ■without an order, or money in addition to the amount directed by an order to be paid in ; paying out of Court any money without an order or a certificate of a tax- ing officer. On a request for informa- tion in writing in respect of any money, funds, or securities, or any tran- saction in the Pay Office. On a request for informa- tion respecting any money, fimds, or securi- ties to the credit of any cause or matter contained in any list prepared by the Paymaster of causes and matters to the credit of which any money, funds, or securities have not been dealt with dur- ing 15 years. On an affidavit for the pur- pose of paying, transfer- ring, or depositing any money, funds, or securi- ties in Court pursuant to the Statute 10 & 11 Vict. c. 96. On preparing a power of attorney. Request . Transcript .... Request Impressed. Impressed. Impressed. Request . Impressed or adhesive. Request . adhesive. Office copy of schedule. Power of at- torney. Impressed. Impressed. XX2 G7G FEES AND PERCENTAGES. Segisier of Judgments and Lis Fendens. On registering a judgment or lis pendens On re-registering same .... On a search On a certificate of entry of satisfaction. On a rtquest for search and certificate pursuant to Ord. LXI. r. 23. On a duplicate certificate. . On a continuation search , . On a certificate of a judg- ment for registration in Ireland or Scotland under the Judgments Extension Act, 1868, including afB- davit On filing for registration a certificate issued out of Courts of Dublin or Court of Session in Scotland under the same Act ; . . . On every certificate of the entry of a satisfaction under the same Act .... On a search made in one or both of the Begisters of Irish or Scotch Judg- ments. Document to be Stamped. Memoran- dum of re- gistry . . Greneral form of search praecipe . . Certmcate .... Certificate .... Certificate . . . . Original certi- ficate. ► Certificate . Praecipe . Character of Stamp to be used. BegTilations and Observations. adhesive. or adhesive. Impressed or adhesive. Impressed or Eidhesive. Miscellaneous. Document to be Stamped. Character of Stamp to be used. Begiilatioiis and On a report of a private BUI in Parliament. Report Impressed. On an allowance of bye- Allowanbe .... Impressed. laws or table of fees. On a fiat of a judge Eiat Impressed. On signing, settling or ap- Advertisement. Impressed, or proving an advertisement. adhesive in Probate Re- gistry. Impressed. On taMng acknowledgment Acknowledg- of a deed by a married ment. ■woman. On taking a recognizance Eecogniaance . Impressed. or bond. On assignnjent of a bond . . Assigimient . . Adhesive. On taking bail, and taking Bail piece . ; . . Impressed. same oS the file and deU- vermg. On a commitment Commitment . . ) On an application to pro- Application . . } Impressed. duce judge's notes. ) FEES AND PERCENTAGES. 677 On appointment of commis- sioners under glebe ex- change. On vacating a recognizance On a citation On admission or re- admis- sion of a solicitor. On filiag a claim in the Admiralty Eegistiy for repayment of the excess of wages paid to a substi- tute hired in the place of a volunteer into the Royal Navy, including copy sent to the Admiralty. On the opinion of the Ad- miralty Registrar object- ing to the claim. On a certificate of the Ad- miralty Registrar order- ing payment of amount due, including the copy to be sent to the Account- ant- G-eneral of the Navy. On registering in the Ad- miralty Registry a power of attorney for a Queen's ship generally, and a copy thereof for the Ac- countant- General of the Navy. On registering same spe- cially. On taking accounts by the Admiralty Registrar in naval prize matters. On Admiralty Registrar writing letters in regard to naval prize matters. On every 501., or fraction of 601., paid out of the Admiralty Registry in any action, or to the Naval Prize Account. Any other proceeding, pleading, or document not hereinbefore speci- fied. DooumeDt to be Stamped. Appointment . . Recognizance. . Prseoipe Admission . , , . Claim , Document .... Certificate .... Power of at- torney. Power of at- torney. Account Document . . . . Account Charaoter of Stamp to be used. Document or Praecipe. Impressed. Adhesive. Impressed. Impressed or adhesive. Impressed. Regulations aud Observations. Impressed. Impressed. Impressed or adhesive. Impressed or adhesive. Impressed or adhesive. Impressed adhesive. These are to be im- pressed, if practic- able, where not filed in the oflBce. General Birectiona. In any case in which the use of impressed stamps is prescribed, paper or parch- ment on which the document requiring a stamp is to be written may be stamped at the Inland Revenue Office, Royal Coiuis of Justice, notwithstanding that stamped forms are also provided by the Commissioners of Inland Revenue. The cancellation shall be effected in such manner as the Commissioners of Inland Revenue shall from time to time direct. It shall be obligatory on all officers of the Supreme Court charged with the duty of cancelling adhesive stamps to see that all such stamps, although obliterated by a written or printed cancellation, be afterwards cancelled by means of perforation. This order shall come into operation on the 18th day of July, 1884. Dated the 4th day of July, 1884. CHARLES C. COTES, R. W. DUFF, Two of the Lords of Her Majesty's Treasury. I concur in this order, SELBORNE, C. 678 ORDER AS TO SUPREME COURT FEES, 1884. OEDEE AS TO SUPEBME COUET FEES, 1884. The Eight Honom-able Rottndell, Eael ov Sbleoene, Lord High Chancellor of Great Britain, by and with the advice and consent of the undersigned Judges ef the Supreme Court, and with the concurrence of the Lords Commissioners of Her Majesty's Treasury, doth hereby in pursuance and execution of the powers given by the Supreme Court of Judicatiire Act, 1875, and all other powers and authorities enabhug him in this behalf, order and direct in manner following : — The fees and percentages contained in the schedule hereto are fixed and appointed to be, and shall be taken in the High Court of Justice, and in the Court of Appeal, and in any Court to be created by any commission, and in any office which is con- nected with any of those Courts, or in which any business connected with any of those Courts is conducted, and by any officer paid wholly or partly out of public moneys who is attached to any of those Courts, or the Supreme Court or any judge of those Courts, or any of them. And the said fees and percentages shaU^ .until otherwise determined by the Treasury, be taken by stamps in the same manner as heretofore, except those taken in the District Registries, which shall, until otherwise determined by the Treasury, be taken as the fees and percentages are now taken. II. The provisions in this Order shall not apply to or afEect any of the matters fol- lowing (that is to say) : — The existing fees and percentages in respect of any of the jurisdictions which are not, by the Supreme Court of Judicature Acts, 1873 and 1875, transferred to the High Court of Justice or the Court of Appeal ; The existing fees and percentages in respect of any matters within the jurisdic- tion of the Court of Probate at the time of the passing of the Supreme Court of Judicature Act, 1875, other than probate actions, or in respect of any appeal in Bankruptcy ; The existing fees and percentages in respect of any criminal proceedings, other than such proceedings on the Crown side of the Queen's Bench Division as the scale contained in the schedule hereto may be applicable to ; The existing fees and percentages in respect of matters on the revenue side of the Queen's Bench Division, and proceedings and business in the office of the Queen's Remembrancer, other than such matters, proceedings, and business as the scale contained in the schedule hereto may be applicable to ; The existing fees and percentages authorised to be taken by any sheriff, under sheriff, deputy sheriff, bailiff, or other officer or minister of a sheriff ; The existing fees and percentages directed to be taken or paid by any Act of Parliament, and in respect of which no fee or percentage is hereby provided ; The existing fees and percentages which shall have become due or payable before this Order comes into operation. III. Save as otherwise provided by this Order all existing fees and percentages which may be taken in any of the Courts whose jurisdiction is, by the Judicature Acts, 1873 and 1873, transferred to. the High Court of Justice or Court of Appeal, or in any office which is connected with any of those Courts, or in which any business connected with any of those Courts is conducted, or by any officer paid whoUy or partly out of public moneys who is attached to any of those Courts, or the Supreme Court, or any judge of those Courts or any of them, shall be and are hereby abolished. IV. A folio is to comprise 72 words, every figure comprised in a column, or authorised to be used, being counted as one word. V. The provisions of Order LXXI. of the Rules of the Supreme Court, 1883, shall apply to this Order. VI. This order shall come into operation on the 25th day of January, 1884, and may be cited as " The Order as to Supreme Court Fees, 1884," OEBER AS TO SUPREME COURT FEES, 1881. 579 The SCHEDULE above referred to. An Order or Rule herein referred to by number shall mean the Order or Rule so numbered in the Rules of the Supreme Court, 1883. Stooionseb, Weits, Notioes, Commissions, jlnd Wabrotts. . . £ s. d. 1. On sealing a writ of summons for commencement of an action .... 10 2. On seaUng a concurrent, renewed or amended writ of summons for commencement of an action 2 6 3. On sealing a notice for service under Ord. XVI. r. 48 2 6 4. On sealing a writ of mandamus 1 5. On sealing a writ of subpoena for witnesses, not exceeding three persons 5 6. On sealing a writ of execution, a subpoena pursuant to the Court of Probate Act, 1858, sect. 23, and every other writ 5 7. On sealing or issuing an originating summons under the Act 6 & 7 Vict. c. 73, for the taxation of a solicitor's bill of costs within twelve months after delivery, or delivery of a bill of costs by a solicitor, including the order to be made thereon 10 8. On sealing any other originating summons DIG 9. On amending same .". 5 10. On sealing or issuing a summons for directions under Ord. XXX . . 10 11. On sealing or issuing any other summons, or Taxing Master's warrant 3 12.- On fiHug a notice to have a reference to an Admiralty Registrar placed in the list for hearing 10 13. On a notice in admiralty actions pursuant to Ord. LXVII. r. 10 . . 15 14. On seaUng or issuing a commission to take oaths or affidavits in the Supreme Court 5 15. On every other commission 1 16. On marking a copy of a petition of right for service 5 Appeaeauces. 1 7. On entering an appearance, for each person 2 18. On amending same 2 Copies. 19. On a copy of a vrritten deposition of a witness to enable a party to print the same, for each folio 4 20. On examining a written or printed copy, and marking or sealing same as an office copy, for each folio 2 21 . On making a copy and marking same as an office copy, for each folio 6 22. On a copy in a foreign language — the actual cost. 23. On a copy of a plan, map, section, drawing, photograph, or dia- gram — the actual cost. ■ 24. On a printed copy of an order, not being an office or certified copy, for each folio 1 Attend anoes. 25. On an application, with or without a subpoena, for any ofScer to attend as a witness, or to produce records or documents to be given in evidence (in addition to the reasonable expenses of the officer) for each day or part of a day he shall neoessaiily be absent from his office 1 The officer may require a deposit of stamps on account of. any further fees, and a deposit of money on account of any further expenses which may probably become payable beyond the amount paid for fees and expenses on the application, and the officer or his clerk taking such deposit shall thereupon make a memoran- dum thereof on the application. The officer may also require an undertaking in writing to pay any further fees and expenses which may become payable beyond the amounts so paid and deposited. 680 ORDER AS TO SUPREME COURT FEES, 1884. Oaths, &a. 26. On f airin g an affidavit or an affirmation or attestation upon honour £ a. d. in lieu of an affidavit or a declaration, except for the purpose of receipt of dividends from the Paymaster-General, for each person making' the same 1 6 27. And in addition thereto for each exhibit therein referred to and required to be marked 1 FiLINO. 28. On filing a special case or petition of right 1 29 . On filing, except in admiralty actions, and unless otherwise pro- vided, an affidavit, deposition, or set of depositions (including any exhibits annexed to any such affidavit or deposition), state- ment of claim in default of appearance, official and special referees' certificates, petition, preliminaiy act, submission to arbitration, award, warrant of attorney, cognovit, bail, satisfaction piece, bond, writ of execution with return, and power of attorney, and every other proceeding in a probate action or in a divorce or other matrimonial cause or matter required by Act of Parliament, general order, or order in the action, cause, or matter to be filed in the Principal Probate Registry 2 6 30. On filing a scheme pursuant to th'e Railway Companies Act, 1867, or the Liquidation Act, 1868 1 31. On filing scripts in a probate action or on depositing pursuant to an order in any cause or matter, any documents for safe custody or production, if the number does not exceed five 5 32. If exceeding five 10 33. On a receipt for any document or documents to which the two last fees apply, when delivered out, or for any other document or documents when delivered out of the Principal Probate Registry .026 34. On filing an affidavit and notice under Ord. XTiVI. r. 4 10 36. On every minute in admiralty actions pursuant to Ord. LXVI. r. 8, for every instrument or document to which the minute relates (other than an exhibit, or any instrument or document previously issued from the Registry or the Marshal's office), unless otherwise provided S 36. On filing a bUl of sale and affidavit therewith where the considera- tion (including further advances) does not exceed 1001 5 37. Above lOOL and not exceeding 200? 10 38. Above 200? 1 39. On filing under the BiUs of Sale Acts, 1878 and 1882, any other document to which the fees Nos. 36, 37, and 38 do not apply . . 10 40. On filing an affidavit of re-registration of a bill of sale or any such other document as in No. 39 mentioned 10 41 . On filing a fiat of satisfaction 5 Geetificates. 42. On a certificate of appearance, or of a pleading, affidavit or pro- ceeding having been entered, filed, or taken, or of the negative thereof, unless otherwise provided 2 6 43. Or it required for use in a foreign country 5 44. Or if a certificate of proceedings pursuant to Ord. LXI. r. 24 .... 5 Seaeohes and Inspections. 46. On an application to search for an appearance or an affidavit, and inspecting the same 1 46. On an applioation to search an index, and inspect a pleading, judg- ment, decree, order, or other record, unless otherwise expressly provided for by any Act of Parliament or this order, and to in- spect scripts filed or documents deposited pursuant to an order for safe custody or production, for each hour or part of an hour occupied 2 6 47. Not exceeding on one day 10 EXAHTTKATION OF WITNESSES. 48. On every memorandum of appointment for an examination to be taken before an Examiner of the Court 5 49. On every witness sworn and examined by an officer of the Court in his office, unless otherwise provided, including oath, for each hour or part of an hour 10 ORDER AS TO SUPREME COURT PEES, 1884. 681 50. On an examination of witnesses by any such officer a-way from the £ s. d. office (in addition to reasonable travelling and other expenses), per day 3 5 1 . The officer may require a deposit of stamps on acootint of fees and a deposit of money on account of expenses, which may probably become payable beyond any amount paid for fees and expenses upon the examination, and the officer, or his clerk, taking such deposit shall thereupon make a memorandum thereof and deliver the same to the party making the deposit. The officer may also require an undertaking, in writing, to pay any further fees and expenses which may become payable beyond the amount so paid and deposited. Heasinq. 52. On entering or setting down, or re-entering or re-setting down an appeal to the Court of Appeal, or a cause or matter for trial or hearing in any Court in London or Middlesex or at any assises, including hearing on further consideration where no such fee was paid on the original hearing, whether on summons adjourned from chambers or otherwise, and including special case, a petition in a divorce or matrimonial cause or matter by which a proceeding is commenced, and petition of right, but not any other petition, nor any other summons adjourned from chambers 2 53. On entering directions of the judge at a, trial pursuant to Ord. XXXVI. rr. 41 and 42, and certifying same when required 10 54. On writing for the attendance of Tnnity masters or other assessors on the hearing of an admiralty action 10 55. On answering and setting down for hearing in Court a petition by which any proceeding is commenced, unless otherwise provided. . 10 56. Any other petition 10 Judgments, Decebes and Oedees, On drawing up and entering judgments, decrees, and orders — 67. If nmde in Court on the original hearing or hearing on further con- sideration of a cause, or on the hearing of a special case or peti- tion, or on any application to the Court of Appeal unless other- wise provided 1 Where in a divorce or matrimonial cause or matter a decree nisi is made, and afterwards a decree absolute, no fee shall be pay- able on the decree absolute. 68. If a judgment without hearing in Court or a final order in a probate action made by a registrar, or if an order made in a probate action or in a ^voroe or matrimonial cause or matter on a motion, including filing the case or application on which the order is made 10 59. If made on the hearing of an originating summons, unless other- wise provided 10 60. If made at chambers in the Chancery Division on the hearing of a cause or matter on further consideration 61. If made under Ord. XV., Ord. XXXII. r. 6, or Ord. XXXIII. r. 2 62. If made on any application by Ord. LV. r. 2, directed to be disposed of in chambers comprised iu sections (1), (2), (3), (5), (6), (7), or (10) of the said rule, exclusive of those comprised in section (12) of the same rule 63. If an order of course on a petition of right 64. If an order for a commission on a petition of right 1 65. If an order of course under the Act 6 & 7 vict. c. 73, to tax a solicitor's bill of costs vrithin 12 months after delivery, or for delivery of a bill of costs by a solicitor where fee No. 7 is not applicable 10 66. On any other order, including an agreement filed pursuant to Ord. lill. r. 23, in admiralty actions, and filing same 6 67. On signing a note or memorandum of an order pursuant to Ord. LII. r. 14, when required for production, where no order is drawn up ■ ^ 3 68. On a memorandum to enter an order nunc pro tunc 5 10 10 10 10 682 OBDER AS TO SUPREME COURT FEES, 1884. On PEOOEEDHfas in the Chanoeey Division, at the JinJOEs' Chambees, oe befobe A Taxing Mastee oe Disteict Reqisteae. 69. On the sale or mortgage of any land or hereditaments pursuant ia £ s. d. any order directing a sa^e or mortgage with the approbation of the judge made in any cause or matter for the purpose of raising money to be dealt ■with by the Court in such cause or matter, for every lOOZ. or fraction of lOOZ. of the amount raised 2 70. On the approval of the purchase of any laud or hereditaments, or of the title to any land or hereditaments, to be purchased pursuant to any order in any cause or matter with money under the control of the Court in such cause or matter, for every 100/. or fraction of 100?. of the amount of the purchase money 2 71. On proceedings pursuant to an order in any cause or matter where the amount of the outstanding or undisposed of estate of a de- ceased person or of the estate subject to any trust or partnership shall be ascertained for the purpose of being dealt with in such cause or matter without deducting any payment to creditors or parties interested after the commencement of the cause or matter, for every lOOZ., or portion of 100?., of the amount or value thereof 10 72. On taMng an account of moneys' received by an executor, adminis- trator, trustee, agent, solicitor, mortgagee, co-tenant, partner, receiver, guardian, consignee, bailee, manager, provisional ofBcial or other liquidator, sequestrator, or execution creditor, or other person liable to account, for every 100?. or fraction of 100?. of the amount found to have been received without deducting any pay- ment 1 73. On taking an account of the debts or ascertaining the amount of any debt due from a deceased person or from any company in any cause or matter when any creditor shall be required to prove his debt otherwise than by production of his security, for every 100?. or fraction of 100?. of the amount found to be due to such creditor, or (if more than one) of the aggregate amount found to be due to all such creditors 1 74. And in any such case, if after evidence adduced by the creditor his claim shall be disallowed, on each such claim 10 75. On taking an account of or ascertaining the amount due in respect of the debentures or bonds of a joint stock or other company, for every 100?. or fraction of 100?. of the aggregate amount found to be due 2 76. On an inquiry to ascertain the heir and next-of-kin, or the heir or next-of-kin of any one or more than one deceased person whose estate is being administered in any cause or matter or in respect of whose estate an application is made under Ord. LV. r. 3, and on any such inquiry at chambers upon an application under the Act 10 & 11 Vict. 0. 96 (the Trustee Relief Act), or the Lands Clauses Consolidation Act, 1845, or any other Act whereby the purchase money of any property sold is directed to be paid into Court 1 77. On settling a list of shareholders entitled to a return, where there is any money to be returned, or a list of oontributories, for every person settled on either such list not exceeding 2,000 2 78. On settling under the 13th section of the Companies Act, 1867, the list of the creditors of a limited company which proposes to re- duce its capital 5 79. On settling a scheme pursuant to the Railway Companies Act, 1867, or the Liquidation Act, 1868 , 5 80. On settUng a scheme for the management of a charity 2 81. On a certificate of a chief clerk, taxing master, or district registrar of the result of any proceeding or taxation of costs before him, including one or any number of matters 10 The amount on which the fee No. 69 is payable shall not include the amount which may be payable out of the money raised to any mortgagee or other person entitled to any charge, estate, or interest, on or in the property sold when such mortgagee or other person is not in respect of his mortgage, charge, estate, or interest a party to the cause or matter in which the order is made or bound by the proceedings although he may consent to or concur in the sale. The amount on which the fee No. 71 is payable shaJI not include any outstanding debts believed to be bad or irrecoverable, nor any property the value of which is undefined or uncertain, nor any property to which the fee No. 69 is applicable, nor any money on which the fee No. 72 shall be payable in the same cause or matter. ORDER AS TO SUPREME COURT FEES, 1884. (3S3 The amount on which either of the fees Nos. 70 and 72 is payahle shall not in- clude any sum of money or any money arising from the sale of any property upon which either of the fees Nos. 69 and 71 shall have been previously paid. The value of any stocks, funds, debentures, securities, shares, or other property, the price of which is quoted in the Loudon Daily Stock and Share List, published by llie authority of the Committee of the Stock Exchange, to which the fee No. 71 is applicable, shall be the dosing price quoted in such published list on the day previous to the fixing the amount of such fee. "When the fee No. 72 shall be applicable to any money received which shall be invested or deposited in a bank, and again be received from such investment or deposit, or shall be paid by one person accounting to any other person accounting iu the same cause or matter, or in any other similar case, the fee shall not be pay- able twice on the same money in the same cause or matter. When a fee shall be payable on the money raised by the sale of property, and the same property shall be resold, in the same cause or matter, the fee payable on the first sale shaE be deducted from the fee payable on the second sale. The amounts for or in respect of which the following fees are payable shall be limited to 200,000/. in the following cases — (o) the amount raised at any time or times in the same cause or mattei' in the cases to which the fee No. 69 is applioable ; (4) the amount of purchase-money to be invested pursuant to any one order in the cases to which the fee No. 70 is applicable ; {c) the amount in the same cause or matter of the value of the outstanding or undisposed of estate whenever ascertained in the cases to which the fee No. 71 is applicable ; {i) the amount at any time or times in the same cause or matter found to have been received by any executor, ad- ministrator, er trustee in the ca.ses to which the fee No. 72 is applioable, except in the case of a trustee directed to account periodically, and in that case, and in aU other cases to which the fee No. 72 is appUoable, the amount found to be due by any one certificate or on any one account ; (e) the amount at any time or times in the same cause or matter found to be due to a creditor or creditors in the cases to which the fee No. 73 is applioable ; (/) the amount found to be due in respect of deben- tures or bo:^ids in tiie oases to which the fee No. 75 is applioable. The fees Nos. 69 to 80 inclusive shall become due and payable by the party conducting the proceedings to which they apply as part of his costs of such proceed- ings, and be allowed as follows or otherwise as the Court or a judge shall direct ; that is to say, the fee No. 71 shall become due and payable upon making the certifi- cate or order by which the outstanding or undisposed of estate is ascertained or as to any part thereof the value of which is at that time undefined or uncertain, and which during the further proceedings in the cause or matter shall be realised or the value of which shall be ascertained upon any order or certificate made when or after the same shall be so realised or the value thereof ascertained. The fee No 72 on taking the account of a receiver, guardian, consignee, bailee, manager, liquidator, sequestrator, or execution creditor, or a trustee directed to pass his accounts periodi- cally shaU, upon payment, be allowed in the account, unless otherwise ordered by the Court or a judge. The fee No. 72 in the other cases to which it applies, and the fees Nos. 69, 70 and 73 to 80 inclusive, shall become due and payable by the party conducting the proceeding, on making the certificate or order on the result of the sale, purchase, account, inquiry or other proceeding to which the fee is applicable ; but if the Court or a judge shall be of opinion that the costs of the parly liable to the payment of any such fees will become payable out of any funds or moneys in Court or to be brought into Court, the Court or judge may suspend the payment of any such fees until such funds or moneys are dealt with, or for such other time as may be thought fit, in which case the amount payable shall be stated in the certi- ficate or order upon which the same are payable, or in some subsequent certificate or order, and where such fees have not been paid, and the costs are directed to be paid out of money in Court or out of the proceeds of securities in Court, the taxing master shall certify the amount of fees payable in respect of such proceedings, and the paymaster shall, if so provided by the Rules imder the Supreme Court of Judi- cature (Funds, &c.) Act, 1883, carry over the amount so certified to be payable from the account to which such moneys or proceeds are placed to a separate account in the books of the Pay Office for fees on proceedings or otherwise as shall be provided by such rules, and the amount shall from time to time, as the Treasury may direct, be paid to the account of her Majesty's Exchequer. Nos. 82 — 87 apply only to the Queen's Bench and Probate Divisions. PEOCEEnnjos befoee an OpficiaIj Refbeee. £ a. d. 88. On every reference 5 89. And for every hour or part of an hour he is occupied beyond two fuUdays 10 684 ORDER AS TO SUPREME COURT FEES, 1884. 90. On every sitting elsewtere than in London or Middlesex a further £ s. d. fee for every night the official referee shall be absent from London 111 6 91. And for his clerk 15 The fees Nos. 82 to 91 inclusive shall become due and payable by the party con- ducting the proceedings on the report of the result of the reference or otherwise, as hereinafter provided, where no such report is nxade. The above-mentioned fees, Nos. 69 to 80 and 82 to 91 inclusive, shall be due and payable, when no certificate, report or order is made, by the party conducting the proceedings on the completion of such proceedings, or, if not completed, a due pro- portion shall be payable on so much of the proceedings as shall have taken place, the amount to be fixed by the officer. i In these cases the fees shaU be paid by stamps impressed upon or affixed to a memorandum stating on what account such fees are paid. A deposit of stamps on account of the fees applicable to any proceeding may be required before such proceeding is commenced, or at any time during the course thereof, and in admiralty actions, when Ord. LVI. i. 4, applies, such stamps shall be affixed as therein provided, and in all other cases a memorandum of the amount deposited shall be delivered to the party making the deposit. Nos. 92 — 101 apply only to admiralty proceedings. Taxation ov Costs. 102. On taxing a bill of costs where the amount allowed does not ex- £ s. d. ceed 4kl 2 103. Where the amount exceeds il., for every 21. allowed or a fraction thereof 1 These fees, unless otherwise provided, shall be taken on signing the cer- tificate or on the allowance of the bill of costs as taxed ; but the fees shall be due and payable, if no certificate or aUooatur is required, on the amount of the bill as taxed, or on the amount of such part thereof as may be taxed, and the solicitor or party suing in person shall in such case cause the proper stamps (the amount thereof to be fixed by the officer) to be impressed on or affixed to the bill of costs. The taxing officer may require a deposit of stamps on account of fees before taxation not exceeding the fees on the full amount of the costs as submitted for taxation, and the officer or his clerk on taking such de- posit shall make a memorandum thereof on the bill of costs. Ord. V. i'. 58 of the Chancery Funds Consolidated Rules, 1874, shall continue to be acted upon in cases to which it is applicable. On Peooeedinqs in the Pat Office op the Supeeme Couet. 104. On a certificate of the amount and description of any money, funds, or securities, including the request therefor l 105. Qn a transcript of an account for each opening, including the request therefor 2 106. On a request to the Paymaster, Bank of England, or a registrar of the Probate, Divorce and Admiralty Division (unless otherwise provided), for any of the following purposes : paying, lodging, transferring, or depositing money, funds, or securities in Court without an order, or money in aiddition to the amount directed by an order to be paid, in; paying out of Court any money without an order or a certificate of a taxing officer ; information in writing in respect of any money, fimds, or securities, or any transaction in the Pay Office 1 107. On a request for information respecting any money, funds, or securities to the credit of any cause or matter contained in any Ust prepared by the paymaster of causes and matters to the credit of which any money, funds, or securities have not been dealt with during fifteen years 2 6 108. On an affidavit for the purpose of paying, transferring, or deposit- ing any money, funds, or securities in Court pursuant to the statute 10 & 11 Vict. c. 96 10 109. On preparing a power of attorney 3 ReQISTBE of JtJDaMENTS ANI) LiS PENDENS. 110. On registering a judgment or lis pendens, although more than one name may have to be registered ^ 6 111. On re-registering same 1 ORDER AS TO SUPREME COURT FEES, 1884.. 685 £ s. d. 112. On a search for each name 1 113. On a certificate of entry of satisfaction 1 114. On a request for a search and certificate pursuant to Order LXI. r. 23 6 115. If more than one name included ia the same request, for each additional name 2 116. On a duplicate certificate, if not more than three folios 1 117. For every additional folio 6 118. On every continuation search, if requested within fourteen days of anyfonner search (the result to he endorsed on such certificate). . 10 119. On a certificate of a judgment for registration in Ireland or Scotland Tmder the Judgments Extension Act, 1868, including affidavit ..020 120. On filing for registration a certificate issued out of the Courts of Dublin or Court of Session in Scotland under the last-mentioned Act, although more than one name may have to be registered under the said Act 7 121. On every certificate of the entry of a satisfaction under the last- mentioned Act 1 122. On a search made in one or both of the registers of Irish and Scotch judgments for each name 1 MlSCELLANEOTIS. 123. On a report of a private bill in Parliament 5 124. On an allowance of byelaws or table of fees , 1 125. On a fiat of a judge 5 126. On signing, settling, or approving an advertisement 10 127. On taking the acknowledgment of a deed by a married woman .... 1 128. On an appointment of a receiver in a probate action 1 129. On taking a recognizance or bond, whether one or more than one recognisor or obligor, and whether entered into by all at one time or not 10 130. On assignment of a bond 6 131. On taking bail, and taking same off the file and delivering .2 132. On a commitment 5 133. On an application to produce judges' notes 5 134. On appointment of commissioners under glebe exchange 1 135. On vacating a recognizance 10 136. On a citation 5 137. On the admission or re-admission of a solicitor 5 138. On filing a claim in the Admiralty Registry for repayment of the excess of wages paid to a substitute hired in the place of a volunteer into the Royal Navy, including copy sent to the Admiralty 10 139. On the opinion of the Admiralty Registrar objecting to the claim. . 10 140. On a certiiicate of the Admiralty Registrar ordering payment of amount due, including the copy to be sent to the Accoimtant- General of the Navy 10 141 . On registering in the Admiralty Registry a power of attorney for a Queen's ship generally, and a copy thereof for the Accountant- General of the Navy 1 10 142. On registering same specially 10 143. On taking accounts by the Admiralty Registrar in Naval Prize matters 5 144. On Admiralty Registrar writing letters in regard to Naval Prize matters 10 145. On every 50/., or fraction of 50/., paid out of the Admiralty Re- gistry in any action, or to the Naval Prize Account 5 No fee is payable on the transfer of money from the Admiralty Registry to the Naval Prize Account. (Signed) SELBORNE, C. COLERIDGE, 0. J. W. B. BRETT, M. R. JAMES HANNEN, Prest. P.D.A. Divn. We concur in the above order. (Signed) C. 0. COTES, H. J. GLADSTONE, Lords Commissioners of Her Majesty's Treasury. 686 ORDER AS TO SUPREME COURT FEES, 1884. OEDEE AS TO SUPEEME OOUET FEES (OOTOBEE), 1884. I, the Right Honotirable Eoimdell, Earl of Selbome, Lord High Chancellor of Great Britain, by and with the advice and consent of the undersigned judges of the Supreme Court, and with the concurrence of the Lords Conunissioners of her Majesty's Treasury, do hereby, in pursuance and execution of the powers given by the Supreme Court of Judicature Act, 1875, and all other powers and authorities enabling me in this behalf, order and direct in manner following : — The fees hereunder written are fixed and appointed to be, and shall he, taken on appeals brought on or after the Twenty-fourth day of October, 1884, from inferior Courts, notwithstanding anything in the Order as to Supreme Court Fees, 1884, contained. £ s. d. On filing 10 On hearing 1 On drawing up judgment 10 The 21st day of August, 1884. SELBORNE, C. COLERIDGE, C.J. W. B. BRETT, M. R. C. E. POLLOCK, B. We concur, . CHARLES C. COTES, HERBERT J. GLADSTONE, Lords Commissioners of Her Majesty's "Treasury. ( 687 ) ADDITIONAL RULES OF THE SUPREME COURT. RULE OF JULY 27, 1885. Note. — The following Rule may he cited, with reference to the Rules of the Supreme Court, 1883, as Order XLVI. Rule 14. Any person who, under Order XLVI. of the Eules of the Supreme Court, 1880, may have served in the manner thereby prescribed a notice, operating in liQu of a writ of distringas, which at the time of making this present Rule may be still in force, may at any time during the currency thereof file in the Central Office, without any affidavit in support thereof, a further notice under his hand, stating that the same shall thenceforth have effect without any further renewal, in the same manner as if it had been a notice filed in the Central Office on affidavit under Order XLVI. rr. 4 and 5 of the Eules of the Supreme Court, 1883, and serve a duplicate of such notice under the seal of the Central Office upon the company upon which such first-mentioned notice was served ; and the service of the duplicate of such notice so filed shall have the same effect as a writ of distringas duly issued under the Act 5 Vict. c. 5, s. 5, would have had against the Bank of England. Under the Eulea of 1880 (r. 27) the notice required to be renewed every five years if it were desired to keep it on foot. RULES OF THE SUPREME COURT, DECEMBER, 1885. Note. — The following Eules may be cited as the " Eitles of ihe Stjpeeme Cotjet," December, 1885, and each Eule may be cited separately according to the heading thereof with reference to the Eules of the Supreme Court, 1883. They shall come into operation on the 1st of January, 1886. OEDEE V. EULE 9 (e), 1. Order V. r. 9 («), shall be read as if the following words were added thereto : — And such certificate shall be countersigned by the chief clerk, to whom, according to the distribution of business, such cause or matter belongs. M. xx8 688 ADDITIONAL RULES OF THE SUPREME COURT. Ord- V. OEDEE Y. EULE 9 (/). 2. For the purposes of subsections (a), (J), and (c) of tMs Eule separate rotations shall he kept. For Ord. V. r. 9, see ante, p. 312. The rule is that which provides for causes and matters commenced in the Chancery Division heing assigned to and marked with the name of some particular judge. OEDEE VII. EULE 3. 3. Ord. VII. r. 3, shall be read as if the following words were added thereto : — " Until the final conclusion of the cause or matter, whether in the High Court or the Court of Appeal." Ord. VII. r. 3, ante, p. 315, provides that a party. may change his solicitor by simply filing a notice ; but until the notice is filed, and a copy of it served and (in Chancery matters) left at the judge's chambers, the former solicitor will be con- sidered ttie solicitor of the party. To this rule the above addition is now made. OEDEE XIII. EULE 9. 4. Ord. XIII. r. 9, shall be read as if after the words " arrears of rent" the words "double value" were inserted, and after the words "breach of contract" the words " or wrong or injury to the premises claimed " were inserted. Ord. XIII., ante, p. 326, relates to proceedings in default of appearance; and r. 9, ante, p. 329, prescribes the plaintiff's course where he has indorsed a claim for mesne profits, arrears of rent or damages for breach of contract upon a writ for the recovery of land. OEDEE XIV. EULE 7. 5. The Court or a judge may, with the consent of all parties, dis- pose of the action finally and without appeal in a summary manner, and on such terms as to costs or otherwise as the Court or judge shall think just. Ord. XIV., ante, p. 330, provides for the prompt dealing with actions where the writ is specially indorsed. This rule extends the power of the judge to deal sum- jnaiily vrith this class of oases. OEDEE XVni. EULE 2. 6. Ord. XVm. r. 2, shall be read as if the following words were added thereto : — Provided that nothing in this order contained shall prevent any plaintiff in an action for foreclosure or redemption from asking for or obtaining an order against the defendant for delivery of the possession of the mortgaged property to the plaintiff on or after the order abso- lute for foreclosure or redemption, as the case may be, and such an action for foreclosure or redemption and for such delivery of possession shall not be deemed an action for the recovery of land within the meaning of these rules. ADDITIONAL RULES OF THE SUPREME COURT. . 689 Provided also, that in case any mortgage security shall be fore- Qrd. XVIII. closed by reason of the default to redeem by any plaintiff in a redemp- '■ '- tion action, the defendant in whose favour such foreclosure has taken place may by motion or summons apply to the Court or a judge for an order for delivery to him of possession of the mortgaged property, and such order may be made thereupon as the justice of the case shall require. Ord. XVIII. r. 2, ante, p. 353, provides that, with certain specified exceptions, no cause of action shall be joined with an action for the recovery of land without the leave of the Court or a judge. There was some doubt whether an action for foreclosure was an " action for the recovery of land" within the meaning' of the rule. This doubt is removed by the additional words now added to the rule. Actions relating to mortgages are now commenced by originating summons ; see Ord. LV. 1. 5a, post, p. 692. OEDEE XXVn. EUEE 8. 7, Ord. XXVn. r. 8, shall be read as if after the words " breach of contract " the words " or wrong or injury to the premises claimed " were inserted. Ord.,XXVII. , ante, p. 374, regulates proceedings where default is made in pleading. OEDEE XXXIII. EULE 4a. 8. Upon the taking of any account the Court or a judge may direct that the vouchers shall be produced at the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as may be contested or surcharged shall be brought before the judge in chambers. This is a new and very convenient provision. For Ord. XXXIII, see ante, p. 397. OEDEE XXXIV. EULE 3. 9. Ord. XXXIV. r. 3, -shall be read as if the words " printed copies for the use of the judges shall be delivered by the plaintiff " were omitted, and the words " three printed copies for the use of the judges shall be left therewith " were substituted therefor. Ord. XXXIV., which regulates proceedings by way of special case, will be found at p. 400, ante. OEDEE XXXV. EULE 6. 10. Ord. XXXV. r. 6, shall be read as if after the word "master " the words " or chief clerk " were inserted. Ord. XXXV. ante, p. 406, relates to prooeo'luigs in district registries ; and r. 6, ante, p. 407, gives the district registrar the same powers as a judge at chambers, except such as by the rules "a master" is precluded from exercising. xx9 690 ADDITIONAL RULES OF THE SUPREME COURT. Ord. XXXVI. OEDEE XXXVI. EULE 6. 11. Order XXXVI. r. 6, shall be read as if the words "within ten days after notice of trial has been given" were therein inserted after the words "upon application." Ord. XXXVI. r. 6, ante, p. 412, is the rule giving the Court a general power to order an action to he tried with a jury ; it gives no ahsolute right to a jury in actions which, before the Judicature Act, 1873, would have been tried without a jury {The Temple Bar, 11 P. D. 6). As to the new rule, see Moore y. Deakin, W. N. (1886), 5. OEDEE XXXVII. EULE 51. 12. The examiners of the Court shall be entitled to charge the fees mentioned in the Appendix hereto, in substitution for the fees hereto- fore allowed. The scale of fees hitherto in force will be found at p. 432, ante. For this Ap- pendix, Bee post, p. 698. OEDEE XXXVin. EULE 10. 13. Order XXXVIII. r. 10, shall be read as if the words " indorsed on" were substituted for the words " appended to." The result of this alteration is that the note showing on whose behalf an affidavit is filed must for the future be indorsed on the affidavit instead of being appended to it. OEDEE XXXVIII. EULE 19a. 14. The consent of a new trustee to act shall be sufficiently evidenced by a written consent signed by him and verified by the signature of his soHeitor. Form I. in the Appendix hereto shall be used with such variations as circumstances may require, and may be cited as Eorm 29 in Appendix L. The practice hitherto has been to require the signature of the trustee to be veri- fied by affidavit ; for the future the certificate of his solicitor in the prescribed form will suffice. For the form see post, p. 697. OEDEE XLIX. EULE 4a. 15. Any judge of the Chancery Division may, at the request or with the consent of any other judge of that division before whom a cause or matter is pending, hear such cause or matter or any appli- cation therein, and for that purpose it shall not be necessary that any order for transfer shall be made or consent of the parties obtained. Ord. XLIX., ante, p. 463, deals with the subjects of transfer and consolidation. The new provision appears to be a very convenient one. ADDITIONAL RULES OF THE SUPREME COURT. QQl OEDEE LI. EULE U. 16. In aU cases where a sale, mortgage, partition, or exchange is ordered, the Court or a judge shall have power, in addition to the powers already existing, with a view to avoiding expense or delay, or for other good reason, to authorise the same to be carried out, either as at present — (a) by laying proposals before the judge in chambers for his sanc- tion ; or (b) by proceedings altogether out of Court, any moneys produced thereby being paid into Court or to trustees, or otherwise dealt with as the judge in chambers may order. OEDEE LI. EULE 3a. 17. No order for the payment of purchase-money into Court shall be necessary, but a direction for that purpose signed by the chief clerk shall be sufficient authority for the paymaster-general to receive the money. OEDEE LI. EULE 6a. 18. In the case of sales under the direction of the Court, the par- ticulars of sale shall be signed by and the result of the sale shall be certified under the hands of the auctioneer and the solicitor of the party having the conduct of the sale. It shall not be necessary to file any affidavit verifying the particulars or the result of the sale. Form 2 in the Appendix hereto shall be substituted for Form 16 in Appendix L., which is hereby annulled. Ord. LI., ante, p. 474, deals with the subject of sales by the Court ; the new rules vary the practice hitherto followed in several important particulars. For the form of the certificate of the result of a sale, see pott, p. 697. OEDEE LV. EULE U. 19. In any proceeding before the judge in chambers any party may, if he so desire, be represented by counsel. Only Mr. Justice Kay and Mr. Justice Chitty are in the habit of hearing counsel in chambers. OEDEE LV. EULE 2. 20. Sub-sect. (6) shall be read as if the words "any other Act relating to Parliamentary deposits " were inserted before " for invest- ment " ; and sub-sect. (7) shall be read as if the words "passed before the 14th of August, 1855," were omitted. The effect of these alterations is to further extend the jurisdiction in chambers. It would seem that the word " or " should have been added before the words " any other," &o. Although a proceeding falls, strictly speaking, within Ord. LV. r. 2 (7), the Court has a discretion under Ord. LXX. r. 1, and will not disallow the costs of a petition where that is a cheaper and more expeditious mode of proceeding than a summons {Se Sethlehem and Bridewell Eospitala, 30 Ch. D. 541). XX 10 Ord. LI. 692 ADDITIONAL RULES OP THE SUPREME COURT. Ord. LV. OEDEE LV. ETJLE 5a. 21. Any mortgagee or mortgagor, whetlier legal or equitable, or any person entitled to or haying property subject to a legal or equit- able charge, or any person having the right to loreolose or redeem any mortgage, whether legal or equitable, may take out as of course an origuiating summons, returnable in the chambers of a judge of the Chancery Division, for such relief of the nature or kind following as may by the summons be specified, and as the circumstances of the case may require ; that is to say, — Sale, foreclosure, delivery of possession by the mortgagor, redemp- tion, reconveyance, delivery of possession by the mortgagee. Note. — Add to the heading of Ord. LV. Part II. the loords ^^ Fore- closure and Redemption" This rule effects a very important alteration in the practice of the Covirt. The result will he, that in all simple cases the whole proceedings in suits relating to mortgages will he conducted in chambers, and only those cases will come into Court where questions of real difficulty have arisen, e.^. disputes as to the right to redeem, questions of priority, the right to costs, &c. Compare Ord. XVIII. r. 2, ante, p. 688. In a suit for foreclosure under the present law the mortgagee is entitled (1) If the amount of the debt and interest is proved,. admitted or agreed at the trial, to judg- ment for immediate payment of the whole amount : (2) If the amount is not so proved, admitted or agreed, to an account of what is due to him for principal and interest in respect thereof, and to judgment for payment of the whole amount immediately the same is certified. But in either case the judge has a discretion to allow time for payment. In the order for personal payment the costs will be limited to such as would have been incurred if the action had been brought for payment only of the debt {JParrcr v. Lciey Hartland S; Co., 31 Ch. D. 42). OEDEE LV. EULE 5b. 22. The persons to be served with the summons under the last pre- ceding rule shaU. be such persons as, under the existing practice of the Chancery Division, would be the proper defendants to an action for the like relief as that specified by the summons. As to parties, see Fisher on Mortgages, p. 811 el seq. ; Seton, p. 1050 ; Daniell, • pp. 1387, 1413 ; the general rule is that all persons who have an interest either in the right of redemption or in the security must be joined. OEDEE LV. EULE 10a. 23. Upon an application for administration or execution of trusts by a creditor or beneficiary under a will, intestacy, or deed of trust, where no accounts or insufiicient accounts have been renderedj the Court or a judge may, in addition to the powers already existing, — (a.) Order that the application shall stand over for a certain time, and that the executors, administrators, or trustees in the meantime shall render to the applicant a proper statement of their accounts, with an intimation that if this is not done they may be made to pay the costs of the proceedings : (b.) When necessary, to prevent proceedings by other creditors, make the usual judgment or order for administration, with a ADDITIONAL RULES OP THE SUPREME COURT. 693 proviso that no proceedings are to he taken under such judg- ord. LV, ment or order without leave of the judge in person. '— Ord LV. r. 10, ante, p. 491, autliorized the Court to dispense with an order for general administration; but in the absence of such an order it was difficult to see now creditors oould be hound. This sub-rule (b) removes any objection on this As to the principles which should guide the Court in deciding whether to make an order for general administration or not, see Sc Wilson, 28 Ch. D. 457 ; Re Blake, 29 Oh. D. 913, both decided previously to the new rule. OEDEE LV. EULE 15. 24. The proviso at the end of Order LV. r. 15, is hereby annulled, and the following proviso is substituted therefor : — Provided, that no order for general administration or for the execu- tion of a trust, or for accounts or inquiries concerning the property of a deceased person, or other property held upon any trust, or the parties entitled thereto, shall be made except by the judge in person : Provided also that summonses under Eule 3 of this Order, the object of which is to obtain the opinion of the Court or a judge upon the construction of a document or any question of law, and any application for the appointment of a provisional liquidator, and applications for substituted service and for service out of the jurisdiction shall be brought before the judge in person. OEDEE LV. EULE 17a. 25. Any chief clerk shall have power without any transfer of the cause or matter to take any business of any other chief clerk, unless the judge to whose chambers any such chief clerk may be for the time being attached shall otherwise direct. OEDEE LV. EULE 39a. 26. Matters coming before the chief clerk shall, unless the judge otherwise directs, when ready for hearing, be entered in daily lists and taken in their order on such lists ; and every matter commenced shall be continued until completion, subject to such adjournments as the chief clerk shall for good cause, and upon such terms as to costs or otherwise as he shall think fit, consider necessary. OEDEE LV. EULE 46. 27. Order LV. r. 46, shall be read as if the words "for claimants" were inserted after the word " advertisement." OEDEE LV. EULE 46a. 28. The advertisement for creditors shall be prepared and signed by the solicitor of the party prosecuting the judgment or order ; and such signature shall be sufficient authority to the printer of the Gazette to insert the same. 694 ADDITIONAL EULES OF THE SUPREME COURT. Ord. LV. OEDEE LV. EULE 66a. 29. The certificate shall, ■when the judge shall so direct, be prepared hy the solicitor of one of the parties, who shall obtain an appointment to settle the certificate, and shall give notice of such appointment to the other parties. No summons to settle the certificate of the chief clerk shall hereafter be issued. OEDEE LV. EULE 74. 30. Order LV. r. 74, is hereby annulled, and the following rule shall stand in Heu thereof : — Orders made in chambers to be acted on by the paymaster-general shall, unless the judge otherwise directs, be drawn up by the registrar; but every other order made in chambers shall, unless the judge other- wise directs, be drawn up by the chief clerk, to whom, according to the distribution of business, the cause or matter in which such order is made belongs ; and all orders drawn up by the registrars shall be entered in the same manner as orders made in open Court. OEDEE LV. EULE 74a. 31. In the case of orders to be drawn up by the chief clerks, as in the last preceding rule mentioned, an order signed by a chief clerk, or a note or memorandum indorsed on the summons upon which any such order is made and signed or initialled by a chief clerk, shall be suffi- cient evidence of the order having been made. OEDEE LVm. EULE 15a. 32. The time for appealing against an order made on the further consideration of a cause, and on the hearing of a summons to vary the certificate on which such order is made, shall be the same as the time for appealing against the order on further consideration. It had been decided that though an order on further consideration vaa a final order, and therefore appealable any time •within a year, yet an order on further consideration, combined with an order on a summons to vary the chief clerk's certificate, wast interlocutory, and therefore only appealable -within twenty-one days {Cummins v. Jfferron, 4 C!h. D. 787 ; White v. Witt, 5 Ch. D. 589). The new rule abolishes this distinction, and a year wiU now be allowed in each case. [The nine following rules, numbered Ord. LIX. rr. 9 — 17, apply only to appeals to the Queen's Bench Division, and other inferior Courts of record of civil jurisdic- tion, in all proceedings other than proceedings in bankruptcy.] OEDEE LXV. EULE 6a. 42. A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs, though he may be temporarily resi- dent within the jurisdiction. This rule very properly reverses the practice laid down in Sedondo v. Chaytor, i Q. B. D. 453, and Ebrard v. Gassier, 28 Ch. D. 432. The old rule frequently worked gross injustice. ADDITIONAL RULES OF THE SUPREME COURT. 695 OEDEE LXV. EULE 19a. Ord. LXV. 43. The following waxrants in the office of the taxing masters of the Chancery Division shall be abolished : Warrant on leaving, warrant to bring in, and warrant to tax. This and the remaining seven rules relate to the taxation of costs, and make alterations in various important particulars. OEDEE LXV. EULE 19b. 44. Within seven days from the date of the passing of an order directing a taxation of costs, the solicitor having the conduct of the order shall leave at the office of the proper taxing master a copy of the order, and (annexed thereto) a statement containing the names and addresses of the parties appearing in person, and of the solicitors representing the several parties to the cause or matter who do not appear in person, and the names and the nature of the interest of the parties represented by each solicitor. OEDEE LXV. EULE 19o. 45. On the copy order beiog left a notice of an appointment to pro- ceed with the taxation shall forthwith be issued by the taxing master to the solicitor having the conduct of the order, and a copy of such order shall be sent by post by the solicitor having the conduct of the order to the solicitors of such of the parties as the taxing master shall direct. OEDEE LXV. EULE 19i). 46. At the time mentioned in the notice the taxing master shall appoint a time within which the bills of costs (with aU necessary papers and vouchers) shall be left at his office, and he shall give aU requisite directions for the conduct of the taxation pursuant to Eegulation (27) of this Order. OEDEE LXV. EULE 19e. 47. The taxation shall if possible be continued.without interruption till completed, but if adjourned for any reason notice of the adjourn- ment shall be sent by the taxing master by post to any solicitor not present at the time of the adjournment whose attendance he may desire at the next appointment. OEDEE LXV. EULE 19f. 48. In cases in which the solicitors leave their biQs with the proper papers and vouchers and with the copy order as above mentioned, the taxing master may, if he shall think fit, forthwith issue a notice as in these rules provided, fixing a time at which the taxation shall be proceeded with. 696 ADDITIONAL RULES OF THE SUPREME COURT. Ora. LXV. OEDEE LXV. EULE 19a. 49. Any solicitor wlio shall fail to leave Ms bills of costs (-with the necessary papers and voueliers) within the time or extended time fixed by the taxing master for that purpose, or who shall in any way delay or impede the taxation shall, unless the taxing master otherwise directs, forfeit the fees to which he would otherwise be entitled for drawing his bill of costs and for attending the taxation, and the taxing master may also,- if he shall think fit, exercise all or any of the powers vested in him by Eegulations (28) and (5S) of this Order. OEDEE LXV. EULE 19h. 50. In every bill of costs the professional charges shall be entered in a separate column from the disbursements, and every column shall be cast before the bill is left for taxation. (Signed) HAXSBUET, C. OOLEEIDGE, C.J. ESHEE, M.E. JAMES HANNEN. NATH. LINDLEY, L.J. EDW. EEY, L.J. C. E. POLLOCK, B. H. MANISTY, J. Becemher 18, 1885. ADDITIONAL RULES OF THE SUPEBME COURT. 697 APPENDIX. FOEM 1. APPENDIX L. No. 29. Consent to act. I, A. B., of , hereby consent to act as a trustee of the [describe the instrument]' (Signed) A. B. 1, C D., of , solicitor, hereby certify that the above- written signature is the signature of A. B., the person mentioned in the above-written consent. (Signed) C. D. FORM 2. APPENDIX K. No. 16. Certificate of Remit of Sale. In the High Court of Justice, Chancery Division. 1, A. B., , of , auctioneer, the person appointed to sell the estate comprised in the particulars hereinafter referred to, hereby certify as follows : 1. I did at the time and place, in the lots and subject to the condi- tions specified in the said particulars and conditions of sale hereto annexed and marked A., put up for sale by auction the estates described in the said particulars. The result of the sale is truly set forth in the bidding paper hereto annexed and marked B. 2. I have received the sums set forth in the fourth column of the schedule hereto as deposits from the respective purchasers whose names are set forth in the second column of the said schedule opposite the said sums in respect of their purchase-money, leaving the sums set forth in the fifth column of the said schedule due in respect thereof. 698 Appendix. ADDITIONAL RULES OF THE SUPREME COURT. The Schedule above referred to. No. of Lot. Name of Purchaser. Amount of Purchase-Money. Amount of Deposit received. Amount remaining due. (Signed) A.B., Auctioneer. To the best of my belief the above certificate is correct. ' (Signed) C. D. The solicitor for the party having the conduct of the above-mentioned sale. EXAMINEES' EEES. £ s. d. 1. Upon giving an appointment to take an exami- nation 1 1 2. For the examiner's clerk 2 6 3. Eor each hour or part of an hour occupied in an examination within three miles from the principal entrance of the Eoyal Coirrts of Justice 10 6 4. For each day of six hours or part of a day occupied in an examination beyond three miles from the principal entrance of the Eoyal Courts of Justice 5 5 5. For the examiner's clerk, where an examination occupies more than three hours (in addition to Fee No. 2) per day 2 6 The party prosecuting the order, or his solicitor, shall also pay all reasonable travelling and other expenses, including charges for the room (other than the examiner's chambers) where the examination is taken. Note. — ^The fees, Nos. 1 and 2, shall be paid by the party pro- secuting the order, or his solicitor, at the time of obtaining the appointment, and may be retained by the examiner and his clerk, respectively, whether the examination is taken or not. The other fees shall be paid so soon as the examination has been concluded, together with any travelling or other expenses as above mentioned. INDEX. ABATEMENT, Abated cause to be struck out, 353. No plea or defeuQg to be pleaded in, 365. Proceedings not to abate if cause of action survive, 350. Entry of, in cause book, 353. ABSCONDING DEFENDANT, Power to arrest defendant intending to go abroad, 190, 665. ACCEPTING SERVICE, 316. ACCOIINTAIIT, Assistance of, may be obtained, 493. Costs of employing, 548. ACCOUNTANT-GENERAL, Office abolished, 204, 205. ACCOUNTING PARTY, Charging, 399. ACCOtTNTS, 397-^00. May be directed at any time, 397. Special directions as to mode of taking, 398. Bill of costs included in, 554. Verification of, 398. Cross-examination on, 399. Just allowances, 399. Delay in taking, 397, 400. Jurisoiction as to, assigned to Chancery division, 263 ; where writ indorsed for, or indorsement involves taking, 305, 332. Reference of, to referees, 268 ; to district registrar, 271. ACKNOWLEDGMENTS, For the purpose of enrolling deeds taken before Clerk of Enrolments, 508 ; searches, 510. Of right to production of deeds, 112. ACT OF PARLIAMENT. [See Statute.] ACTION, Interpretation of word, 305. Costs of, 539 ; where for insignificant amount, 271. Form and commencement of, 305; assignment of, to judge, 281, 312. Transfer and consolidation of, 463 et aeq. ; where two are instituted for same matter, 466. Withdrawal or discontinuance of, 373. Railway company, against, stay of, 171. ACTUARY, Assistance of, may be obtained, 493 ; fees of, 556. ADDITION, Of plaintiffl by Court or judge, 333. ADDITIONAL JUDGE, Of Court of Appeal, 278. ADDRESS FOR SERVICE, ..„„„„,. , • ..^ • To be indorsed on writ by solicitor for plamtifE, 309 ; by plamtiff m person, 310 ; by soKcitor for defendant, 323 ; by defendant in person, 324. Where writ issues out of district registry, 310. ADJOURNMENT, Of action, 418. In chambers, 484, 501. INDEX. ADMINISTRATION, Action for, assigned to Chancery division, 263 ; parties to, 342 — 347. Execution of trusts, 342. Priorities of secured and unsecured creditors, 280, 281. Summons for, 488 — 491. Under Bankruptcy Act, 1883 .. 281. ADMINISTEATOE. [See Exeootoe.] ADMISSIONS, 394—397. Of facts on notice, 395. Of documents, 395 ; filing of, 524. Judgment on, 395, 396. Of case of other party, 394. Costs occasioned by refusal to make, 395. Signature of, 396. " ADVERSE LITiaATION," Meaning of, in Lands Clauses Act, 43. ADVERTISEMENTS, For creditors and claimants, 499 ; persons not claiming in time fixed, how far excluded, 499, 502. By executors, 101. Petition to confirm scheme under Railway Companies Act, 1867 . . 174. Notice in lieu of service by, 316. ADVICE OE COURT, May be applied for by trustees, &c., 102 ; practice on petition for, 482 ; allowanoes to solicitors, 647. AFFIDAVITS, 433—441. Chambers, in, 438, 439. Counsel's fees for settling, 551. Cross-examination upon, 427, 433, 440. Documents, as to, 386. Evidence by, 422 ; on motion, petition, or summons, 433 ; printing, 441, 562. Funds in Court, interest on, 220. Of no incumbrances, 30. Of no settlement, 30, 230, 231. Of service, 440, 565. Swearing of, in England and abroad, 434, 435 ; before solicitor of party, iusufEoient, 438. Reserved biddings, 475. Result of sale, 476. Several deponents, 647. Scandalous matter in, 437. Trustee Relief Act, imder, 50, 52, 53. Increase, of, 545. Withdrawal of, not allowed, 427. Trial on, 439—441. How intituled, 433. Must be confined to facts within witness's own knowledge, except on inter- locutory applications, 434. Reply, in, 440. How drawn up, 436. Filing, 436, 438 ; on interlocutory applications, 439. Description of deponents, 436. Alteration in, 437. ' Defective or irregular, may be received, 437. Blind, &c., person, of, 437. Ex parte application, on, 438 ; motion or petition, 433. Office copies, and generally as to, 560, 661. AFFIRMATIONS, 435. AGENCY, . • Business, costs of, may be taxed, 6, 8 ; allowanos for correspondence, 550. A&REEMENT, Cancellation of, 263. Costs, as to, 20—23. Solicitor, by, as to cause to be in writing, 274, INDEX. 689 ALLOWANCE, Of property or income of property, when Toa-die pendente lite, 470. Just, to be made in taking aoooimts, ■without special directions, 399 . ALTERATION, "When allowed in biU of costs after delivery, 8. AMENDMENT, 377—381. Costs, 379, 381. Of judgment or order, 380. Of indorsement or pleadings, 377 ; by adding parties, 336, 337 ; by pleading matters arising pendmg the action, 370 ; in lieu of new assignment, 370 ; on appeal, 610, 511. Of proceedings not in compliance with rules, 666. ' Time for, 378, 379 ; written or printed, 379. DisaUowanoe of, 378, 379. ANSWER, By affidavit, to interrogatories, 386 ; exceptions, not to be taken to, 386 ; order for further answer, 386. Sufficiency of, determined on motion or summons, 386. Part of, may be used as evidence at trial of action or issue, 393. ANSWERING PETITION, In name of Seniov Registrar, 634. ANTICIPATION, Release of restraint on, 119, 120. APPEAL, 509—518. Amendments, 511. Banlruptcy, in, 514. Chambers, from, 266, 267. Consent order, from, 265. Costs, as to, 265. Costs of, 511. Court of, 252, 253, 509 ; constitution and jurisdiction of, 252, 278, 287. Cross appeal, 512. District registry, from, 408. Entering, 513. Evidence allowed on, 511. Judgment on, in favour of non- appealing party, 511. Inferior courts, from, 282. Interlocutory orders from, 282, 515. Lunacy, in, 263. None, in what cases, 265, 510. Notice of, 510, 511, 513. Order made ex parte, from, 514 ; from part of order, 509. Printing evidence, 515. Regulation of practice of, 286. Security for costs of, 515, 516. Stay of proceedings pending, 617, 518. Time for, 514, 515. Who may, 510. APPELLATE JURISDICTION ACT, 1876.. 286. APPEARANCE, Order as to, 322—326. Defavdt of, 326—330 ; at trial,_417. Of third party served with notice, 348. Of mortgagees, trustees, &o., under Lands Clauses Act, 42. SoUoitor undertaking to enter, and failing, 324. Time for, 325 ; where defendant out of jurisdiction, 322. Unnecessary, in Court or in chambers, costs occasioned by, 347 ; rule as to offer of thirty shillings costs, 552; costs of separate proceedings, 547,548. APPOINTMENT, Of persons to represent estate, generally, 345—347. Power of, how to be executed, 99. APPORTIONMENT, » ^ v oo Conditions of re-entry, of, provision for, 99, 113 ; of rent-charge, 99. Of fund, 493. ARBITRATION, Powers of Court as to, 268. M. ^Y , 690 INDEX. ARRANGEMENT, Under Railway Companies Act, 1867 . . 169. ARREARS OP RENT, Claima in respect of, 353. ARREST. [See Impbisonhent.] Privilege from, of officers, attendants, suitors, and witnesses, 188. Of defendant intending to go abroad, 190, 565. ASSESSOR, Trial with, 419. ASSETS, Distribution of, by; executor, 100, 101. ASSIZES, 261. Trial of cbancery actions at, 415. " ASSIGNEE," Meaning of, in Solioitors Act, 1843. .4, 5. ASSIGNMENT. [&e Teauseee.] Of action to division, 311 ; to judge, of chancery action, 312. Of debts and ohoses in action, 258, 259. By one to himseU and another, 100, 122. ATTACHMENT, 188, 189, 455. Writ of, 455. Of solicitor imdertaking to appear and not appearing, 324. Eor not answering interrogatories or making discovery, 392 ; after service on solicitor, 392. Referee not to have power of, 420. Non-payment of money, for, 188, 189. ATTACHMENT OE DEBTS, 455—458. What debts attachable, 456.' Issue of execution against garnishee, 457. Third party interested, 457. Costs, 458. ATTENDANCE At chambers, 498, 499 ; unnecessary, 553 ; default in, 650. Of witnesses out of jurisdiction, compelled, 303. ATTORNEY, Powers of, 122, 130. ATTORNEY-GENERAL, Must sign writ when, 305. Represents Crovm in actions to perpetuate testimony, 430. ATTORNEYS AND SOLICITORS ACT, 1870.. 19. AUDIT OEEICE, Documents to be sent to, 238. audit! querelI, Proceedings by, abolished, 451. AUTHORITY TO SUE, Next friends and relators to give, 305, 339. Solicitor to declare whether writ was issued by his authority, 314. Stay of action for want of, 314. BANK OF ENGLAND, To receive dividends on securities, &c., to account of Paymaster- General, 206, 207. Bound by vestiog orders made under Trustee Acts, 66, 75, 92. Duty of, on service of affidavit and filed notice, 460. Indemnity to, under Chancery Eunds Act, 207. BANKRUPTCY, Administration in, 281. Trustee in, not to join actions in other capacity without leave, 354 . Effect of, on action, 350, seq. BANKRUPTCY ACT, 1883, Administration under, 281. "BARE TRUSTEE," 107. Married woman, 107. INDEX. 691 BENEFICIARIES, Improperly joined, costs, 335. BIDDINGS, Not to te opened on sales by the Ooxirt, 475 BILL,- Of o^tS'^^— 15- ISee Costs, Taxation] ; alteration of, 8 ; form of, 5 ; im- BILLS OF SALE ACTS, Masters to act as registrar under, 523. BLIND PERSONS, Affidavits by, 437. BOOKS OF ACCOUNT, When primd facie evidence, 398. BUILDrN-GS, Expenditure on, under Lands Clauses Act, 29. CALENDARS, Of documents to be kept, 522 ; of entries, 632. CANCELLATION- Of deeds, assigned to Chancery Division, 263. "CAPITAL MONET," Under Settled Laud Act, investment of, 143, 144, 145. CASH, Under control of Court, 105, 368, 369. "CAUSE," Interpretation of word, 276. CAUSES OF ACTION, Joinder of, 353 ; survival of, 350. CENTRAL OFFICE, 291, 519—531. Control of, 292. Business of, 292, 519. Practice Rules, 526 — 531. CERTIFICATE, Of chief clerk, 604—606. [See Chief Clkek.] Of acknowledgments, 292. CESTUI QUE TRUST. [&«Tet7Stee.] Parties in suits by and against, rules as to, 335. CHAMBERS, Gejtekaxlt, 482—485. In Chanceet Division, 485 — 507. Accounts and inquiries, summons to proceed with, 496. Adjournments into Court and vice verad, 484, 492. Administration, by summons in, of personal estate, real estate, or trust, 489, 490. Advertisements for purposes of proceedings in, 499, seq. Affidavits in, 438, 439. Appeal from order, made by judge in, 266, 267. Attendances in, 498, 499. Business to be done in, 485 — 488. Chief clerk in, 492. [See Ohiei' Oieek.] Claimants not coming in to prove claims in, when excluded, 499. Costs of proceedings in, 499, 501, 502, 643 ; special allowances, 547 ; of un- necessary proceedings in, 652, 663 ; where one party makes default, 484, 650. Evidence in, 490, 492 ; by affidavit, 438, 439. Counsel, costs of, 561. Further consideration of cause in, 484, 487, 606. Judge sitting in, jurisdiction and powers of, 485, seq. ; may be seen per- sonally, 492, 605. Orders made in, how registered and drawn up, 507. Originating summons, in, for specific relief without administration, 488—491 ; form, &c., of, 494, 495. Charitable Trusts Act, imder, 491. Y y2 692 INDEX. ' CHAMBERS— oontimied. Experts, assistance of, in, 493, 494. Infants, proceedings relating to, 495. Documents to be left at, 496. Summons book, 498. Creditors, claims by, in, 499, seq. Course of proceeding in, 497. Classification order in, 498. Proceeding in, exports, 483 ; under judgment or order, 496 ; during vaca- tion, 636. Process of contempt, 493. Register of proceedings in, to be kept, 607. Solicitor may be uomiaated to appear for a class in, 498 ; or a distinct solicitor may be nominated, 499. - Summons iu, 483—486 ; originating, 488 — 491, 494, 495. Witnesses, examination of, in proceedings in, 492, 493. CHAlSrCELLOE. [See Lobd Chaitoelioe.] CHANCERY DIVISION, Business assigned to, 263. Constitution of, 262. Jurisdiction of, 263. CHANCERY EUNDS ACT, 1872.. 203; rules under, 208. CHANCERY EUNDS AMENDED ORDERS, 1874, rr. 5— 11.. 53, 211. CHANGE OF PARTIES BY DEATH, &o., 360—353. CHARGE, Jurisdiction for raising, assigned to Chancery Division, 263. CHARGING ORDER, On stock or shares, 468 ; stop order, -vrhere in hands of Paymaster-General, 461 ; effect of, when made absolute, 459 ; for costs under the statute, 16—18. CHARITABLE TRUSTS ACT, 1863 (16 & 17 Viot. o. 137), 94. CHARITIES, Charity Commissioners' sanction necessary to all applications not in a matter or suit actually pending, 51 ; when dispensed with on payment out xmder Lands Clauses Act, 30. Moneys of, payment into Court under Trustee Relief Acts, 61. New trustees of, how appointed, 79 ; under Charitable Trusts Acts, 79, 94, 491. CHEQUES, Outstanding, 240 ; payment out of Court by, 603. CHIEF CLERKS, 492, 493. Certificate of, 604 ; form of, 604 ; when binding, 505 ; summons to vary, 506, 606 ; filing, 524. Examination of witnesses before, 493. CHILDREN. [See Infants.] CHOSES IN ACTION, Orders made under Trustee Acts respecting, 62. Assignment of, 268, 259. CHRISTMAS DAY, a dies non, 637. CIRCUITS, 261. CITY, Service on inhabitants of, 318. CLAIM, Chambers, in, 499, seq. Who may appear on, against estate, 347. CLASS, Appointment of person to represent, 336, 342 ; in chambers, 498. CLERICAL ERRORS, 223, 380. CLERKS, Fees to barristers', 560. INDEX. 693 CLOSE OF PLEADINGS, 370. Last pleading to be deemed to be denied, 376. COLONIES, AfBdavits, &o., how sworn in, 435. COMMISSIONER, For acknowledgments by married women, 300. Foe examination op witnesses, 423. Op oaths, 272 ; appointment of, 273. COMMITTEE OF LUNATIC, Consents by, as to procedure, 339. [&« Lunatic] Powers vested in lunatic may be exercised by, under the direction of the Lord Chancellor, 80. COMMON LAW, Legal right to be recognized in all cases, 257. Equity to prevail where conflict, 260. COMPANY, Enforcing judgment against, 452. Discovery in aid of execution against, 452. Shareholders in, execution against, 450. Indemnified fot acting on orders made under Trustee Acts,. 75. Officer or member of, may be interrogated, 384, 385. Service on, 318, 319. Winding-up of, rule as to secured and unsecured creditors, 279 ; transfer, after order for, 465. COMPENSATION, Under Lands Clauses Act, 33. COMPOUNDING PENAL ACTION, Leave for, 471. COMPROMISE, Solicitor, by, not to be binding unless reduced into writing, 274. CONCURRENT WRITS, 314. CONDITION PRECEDENT, To be pleaded when, 358. CONDUCT OF PROCEEDINGS, Applications as to, to be made in chambers, 488. May be taken from plaintiff and given to any person, 343 ; for delay in prosecuting decree, 399, 400. Of sale, 470, 475. Where two or more suits for same matter, 343. CONDUCT MONEY, 424. CONFESSION, Of defence arising pending the action, 370, 371. CONFIRMATION, Of scheme under Railway Companies Act, 1867. . 173. CONFLICT OF LAW AND EQUITY, Matters of substantive law, 260. Matters of practice, 260. CONSENT, Of next friend, &o., to action, 339. Procedure, as to, may be given on behalf of persons under disability, 339. CONSEISTT ORDER, No appeal from, 265. CONSOLIDATION, Of causes or matters, 367, 465, 466. Of mortgages, 115. CONTEMPT, Imprisonment for, 188. 694 INDEX. CONTINUATION OF PEOCEEDINGS, 351, 352. CONTEACT, Cancellation of, 263. What stipulations are of the essence of, rules of equity to prevail, 259. Specific performance of, assigned to Chancery Division, 263. Meaning of, in Married Women's Property Act, 1882. .200. Completion of, after death of vendor, 110. How pleaded, 359, 360. CONTKIBUTION, Claim for, by defendant against stranger, 347 ; against co-defendant, 350. CONVERSION, Equitable, of purchase-money under Lands Clauses Act, 28, 36 ; under Partition Act, 1868 . . 182. CONVEYANCES, Costs of, under Lands Clauses Act, 45 ; taxation, 46 ; form of, 45. CONVETANCINa ACTS, 1881.. 109; 1882.. 127. Applications under, hoTV made, 124; C. A. 1882. .127. CONVEYANCING COUNSEL OE THE COURT, 476, 477. Costs of private counsel settling drafts in addition to, 546. Fees of, 476, 651. COPIES, Order as to, 561, seq. For use of paymaster, 221. Pleadings, of, for use of judge, 417. Costs of, 551, 662. COPYHOLD ACTS, Applications under, 487. Lodgment in Court xmder, 225. COPYHOLDS, Vesting orders of, under Trustee Act, 76. CORPORATION, Issue of execution against, 452 ; service of writ upon, 318 ; discovery from, 384, 386. COSTS. ISee Solioitoe, Taxation.] Order as to, 639—561 ; application of former practice, 557. Action for, not to be commenced till a month after delivery of bill, except by leave, 1, 3 ; pleading non-delivSry of bill to, 4 ; restrained pending taxation, 2. Action, of the, 639, 640. Where sums under 20Z. are recovered, 271. For not making admissions, 395. Misjoinder, 333. Prolixity, scandal, &o., 361. Improper attendances, 498, 499, 552, 663. Discontinuance, 373, 374. Agreement as to, 7, 19 — 24. Amendments, 379, 381, 655. Appeal as to, 265, 266. Appearances, unnecessary, 478, 552, 553. Bill of, 1 — 15. [See Bill oe Costs.] Bond given as security for, 542. Chambers, in, 650. Charging, on property preserved or recovered, 16 — 18. Counsel, of, in chambers, 651 ; of conferences, 559 ; settUug affidavits, 561 ; two or more, 559 ; refreshers, 559, 560 ; clerks, 660. Creditors proving, of, 501, 602, 503. Day, of the, payable on adjournment, 417, 418. Discontinuance, on, 373, 374. Evidence, of, what allowed, 648, seq. Guardian ad litem, of, 544. Improper and unnecessary matter, of, 552, 553. INDEX. 695 COSTS— :EF^NJiANT— continued. Contribution or indemnity against third party, claim for, 347 — 350. Costs against, 540. Security for costs not required from, 542. DEFINITIONS, Of terms in R. S. 0. 1883.. 567, 568. DELAY [&e Depatot] effect of, in applications for taxation, 14 : in chambers, 473, 496. DELIVERY, Defence, 363. Pleadings, 357. Reply, 369. Statement of claim, 361. Of bill of costs, 1—15. Of papers to cUeut, 9. Of property on payment into Court of amount claimed, 470. DELIVERY, WRIT OF, 463. DEMURRER, Proceedings in lieu of, 371, 372. DENIALS, In pleadings to be specific, 359. DEPOSIT, AoOOtJNT, Funds in Court, when to be placed on, 235 ; and ■withdrawn from, 236 ; interest, how computed, 236, 237. Paeuamentaet, Required by Standing Order of Parliament, 49. Repayment of, 49 ; on abandonment of railway, 60 ; under Lands Clauses Act, 46—48. DEPOSITIONS, Court may allow, to be given in evidence, 423. Examiner, taken by, 425. Filing of, 426. Made before issue joined, 428. DETENTION OF GOODS, 328. Order for, pendente lite, 467. DIRECTIONS, Summons for, 381. DISCHARGE, Of incumbrances on sale. 111. Of order of revivor, 352. DISCLOSURE, by solicitor as to authority, 314. DISCONTINUANCE, 373; 374. Costs, 374. DISCOVERY, 381—394. By interrogatories, 381, seq. ; costs of, 384 ; settmg aside, 386. Fraud or breach of trust, in action for, 381. Privileged communications, 382, eeq. In aid of execution, 452. Costs, 384, 386. Of documents, 386, seq. Security for costs of, 393, 394. From corporation, &c., 384, 385. DISENTAILING DEED, . „ . j t j m a t on Required on payment out of monies in Court under Lands Clauses Act, 30. By infant, under Infants Settlement Act, 97. DISMISSAL, „ „-„ 1, 4. 070 DisooNTnrTTANCE OF ACTION BY Plaintip]?, 373 ; by consent, 373. Fob waht op Peoseoution ; default in pleading, 374; m gmng discovery, 392 ; in giving notice of trial, 413 ; non-appearance at tnal, 417. 698 INDEX. DISTRICT REGISTRAR, Appomtment of, 299. Appeal from, 408. Deputy, 289. Jurisdiction of, 407. Saving as to, 302. DISTRICT REGISTRY, 269, 406—410. Accounts and inquiries referred to, 271 . Action when to proceed in, 270 ; removal of action, 270 ; proceedings in, 406, seq. Appeal, 408. FiliTig of pleadings in, 410. Prooeediiigs in, 406 ; entry of judgment, 407. Writ issued out of, 269, 310. Fun^ in, 241. Removal from, 408, 409. Entry for trial in, 415, 416. OfEces, wlxen open, 635. DISTRINGAS, Service of affidavit and notice to have effect of, 460. DIVIDENDS, On funds in Court, 229, 230. DIVISIONS OF HIGH COURT OP JUSTICE, Constitution of, 262. Option to choose, 281, 311. DOCUMENTS, Discovery of, 386, 387 ; affidavit, how far conclusive, 387 ; what documents material, 387. Production of, 388 ; what, protected, 388, 389 ; may be ordered at any stage, 424. Referred to in pleadings, &o., notice to produce, 389. Inspection of, time and place for, 390. Order for inspection of , 390, 391; Court rolls, 391. ' Determination of questions hefore discovery of, 391, 392. Penalty for refusing discovery, 392. Security for costs of discovery of, 393. To be left at chambers, 496. DORMANT FUNDS, List of, to be published trieimially, 239. DRAWING UP, Of orders and judgments, procedure upon, 607, 634. EARLY TRIAL, Order for, 466. "EAST INDIA STOCK," What is, 105, 369. ECCLESIASTICAL LEASEHOLDS, Purchase-money paid under Lands Clauses Act in respect of, how ap- plied, 34. EJECTMENT. [&e Laito.] ELEGIT, Writ of, 453. EMBARRASSING PLEADINGS. [See Paeties, Pleadings.] ENGINEERS, Assistance of, may be obtained by the Court, 493. ENROLMENT, Clerk of enrolments, 621, 523. Department of Central Office, 521. Of deeds, 621. Scheme under Railway Companies Act, 1867. .621. Of judgments, unnecessary, 621. INDEX. 699 ENTERING, Actions for trial, 413 — 416.. Evidence of, as read, 532. Judgments, 444 ; by entering clerks of registrars, 632. EQUITABLE EXECUTION, 177, 471. EQUITABLE WASTE, 258. EQUITY, Rules of, to prevail, 260. To be conourreutly administered with law, 256—257. ESCHEAT, Property held upon trust or mortgage, of, 86. ESSENCE OF CONTRACT, Stipulation, when of, 259. EVIDENCE, 422—433. Agreement to take by affidavit, 422. Other cause, taken in, 422. Office copies admissible in, 423. Commission to take, 423. Vivd voce, to be given, 422. Perpetuating, 429, 430. Books of account, 398. Costs of, what allowed on taxation, 548. Chambers in, 438, 439, 492. De bene esse, 423. Entering, as read, in decree, 532. Inspection, &o., of property for purposes of, 467. Petitions, &c., on, taken by affidavit, 433. Rules of practice as to, not afieoted, 284. Time for, 439, 440. EXAMINATION, [&e CEOSs-ExAimjATioir.] Witnesses, of, by order, 423. EXAMINER, 423, seg. Examination of witnesses by or before, 424 — 426. Power of, 425 ; to administer oaths, 427. Special, 423. EXAMINERS OF THE COURT, 430—433. Fees of, 432. EXCHANGE, By tenant for life, 141. EXECUTION, 446—463. Delivery in, 177. Equitable, 177, 471. Of instruments, by order of Court, 303. Railway company, against, 168, 169, 172. Partnership firm, against, 448. .... Writ of, issue of, 447, 448, 449 ; to remam m force for a year, 450 ; re- newal, 450. Upon conditional judgment, 447. Poundage, 449. Where leave to issue, necessary, 450. Orders, on, 451. Persons not parties, against, 451. Corporation, against, 452. Discovery in aid of, 452. Money and costs, for, 449. Stay of, 451. Garnishee, against, 457. EXECUTION OF PURCHASE DEED, 112. 700 INDEX. EXECUTOR, Contiiming action, is liable for costs, 351 ; claims by or against, joinder of, 354 ; judicial opinion bow obtained by, 102 ; protection for acting under power of attorney, 100 ; or assigning leaseholds, 101 ; distributuig assets after setting apart fund or giTing notices to creditors, 100, 101 ; repre- sentative character to be ^own on writ, 308 ; powers of, under Con- veyancing Act, 1881 . . 119 ; represents estate, 335. EXHIBITS, To affidavits, 439. EXPERT, Assistance of, may be obtained, 493, 494. EXTENSION OF TIME, 538. EXTENT, Writ of, still existing, 451. FACT, Trial of questions of, without pleadings, 405, 406. FEES, Counsel to, what allowed on taxation, 651, 557, 559, 560, 632 ; counsel attending chambers, 551. Court, 669—686. Solicitors, of, 662—668. FIERI FACIAS, WRIT OF, 453, 454. He bonis ecelesiasticis, 453. FILING, Of petitions, &c., 522, 524. Affidavit, 436. Chief clerk's certificate, 505. In default of appearance, 357. Grenerally, 527. In District Registry, 410. Order for, not to be drawn up, 481. Authority of next friend or relator, 339. Special case, 401. FOLIO, To be 72 words, 551. FORECLOSURE, Action for, not action for recovery of land, 363. Decree for, form of, 376. Sale in lieu of, 115. FOREIGN, COTTBT, Declaration of English law made for information of, 372. Gk)VEEOTIBNT, Suing as plaintiff, how discovery to be obtained from, 385. Paets, Affidavits, how sworn in, 435. FORFEITURE, Of leases, restrictions on and relief against, 113, 114. formI pauperis. Suing or defending in, 340, 341 ; petition of right, 202. FORMS, Rules of the Supreme Court, under. [&e TabiiB oe Contents.] Conveyancing Act, 1882, under, 133 — 138. Supreme Court Funds Rules, 1884, under, 242 — 248. Settled Land Act, under, 160—165. FRAUD, Overcharges in bill of costs amounting to, 12 — 14. How pleaded, 357. FRIVOLOUS ACTION OR DEFENCE, 371. INJ)EX. 701 FUNDS IN COURT, Chancery Funds Act, 1872, relating to, 203, seq.; Chancery Funds Amended Orders, 1874. .211, seq. ; Judicature Funds Act, 1883. .213. Deposit aoooimt for suitors' moneys, 208. In-f estment of, 233—235. Payment out of Court, 226 ; conversion of government securities, 237. Undealt -with, list of, 239. Petition deaUng with, 212. liodgment of, 222, seq. Money on deposit and interest thereon,' 235 — 237. Allotments of new stock in respect of, 241. FURTHER CONSIDERATION, Setting down on, 414. Of matter originating at chambers, 506. Evidence on, 415. Adjounmient for, 418. GARNISHEE, 455. [&e Attachment op Debts.] GENERAL ORDERS, 1st February, 1862, Petition of Right, 201, 202. 24th January, 1868. Railway Act, 1867., 170, 173, 174, 176. 7th January, 1870, Debtors Act, 1869.. 189, 190. 22nd December, 1874, Chancery Funds Amended Orders, 1874.. 211. GENERAL RELIEF, Need not be prayed, 362. GENERAL WORDS, Implication of. 111. GOOD FRIDAT, a dies non, 537- GOODS, Action for detention of, 328. Order for sale of, pendente lite, 466. GROUNDS OF MOTION, When to be stated in motion, 479. GUARDIAN, .... J. J, Ad litem, appointment of, where defendant in a suit is mfant, or of unsound mind, 326, 338, 339. Costs of, 338. Consent by, as to procedure, 339. Passing accounts, 474. HEARING. \_See Tbiai,.] HEARSAY EVIDENCE, 434. HEIR-AT-LAW, „ .„ . ^-u ^,a Party to suit to execute trusts of a wiU, need not be, Aii. Trustee Acts, trustee within, 64. HEIRLOOMS, Sale of, 149. HIGH COURT OF JUSTICE, . a oao. oe.^ oKi Constitution and jurisdiction of, as a superior court of record, 249, 251, 254. Powers of, with respect to proceedings before referees, ib». Regulation of practice of by rules, 285. HUSBAND AND WIFE. \_See Maebibb Womait.] Joinder of claims by or against, 354. Service on, 315, 351. IDENTIFICATION, Of person to be paid, 241. ILLITERATE PERSON, Affidavit of, 437. ™X^?on™of Court, 188; for non-payment of money, when aUowed, 187 — 189. \_See Attachment.] 702 INDEX. IMPROVEMENTS, Lands dauees Act, under, 29. Settled Land Act, under, 27, 145—147. ESTOOME, Allowance of, pendente lite, 470. INCOME TAX, Deduction of, from dividends on funds in Court, 232. INCUMBRANCES, Discharge of, on sale. 111 ; discharge of, under Settled Land Act, 144. INDEMNITY, Claim for, by defendant against third party, 347, 348. INDEXES, To be kept, 522. INDORSEMENT, Address, 309, 310. Date of service, 319. On judgment or order to do an act, 445. Of claim, 307—309. Special, 308 ; advantages of, 309. INFANT, Absolutely entitled, to be as tenant for life, 153. Appearance of, 339. Birth of, pendente lite, 352. Jurisdiction as to, assigned to Chancery Division, 263. Chambers, ■what matters relating to, are determined in, 487. Charging order for costs on property of, 16. Consent to procedure, 339. Custody of, under sixteen years, given to mother under Custody of Infants Act, 98 ; under separation deed, 98 ; rules of equity to prevail, 260. Day to show cause, whether given to, 78. Default of appearance by, 326. Defends by guardian, 338. Guardian of, 326, 338, 339. Legacy of, paid ia under Legacy Duty Act, 51, 52. Maintenance and advancement of, trustees may apply income of property in, 121 ; applications for, made in chambers, 487 ; evidence required, 495. Management of property of, 120. Mortgagee, order made under Trustee Acts, in case of, as to lands, 67 ; con- tingent rights, 68. Next friend of, 338 ; to sign a written authority, 339. Plaintiff to sue by next friend, 338. Service on, 318. Settlement on marriage of, may be made by, with the approbation of the Court, 96 ; when void on death of infant under age, 97. Suits by and against, 338. Trustee Act, vesting order made under, in case of, as to lands, 67 ; contin- gent rights, 68 ; stock, 91 ; where infant trustee is a lunatic, 65 ; where infant is beneficially entitled, 91. INFANTS' SETTLEMENT ACT (18 & 19 Vict. o. 43), 96. Evidence on applications under, 496 ; appUoation made by summons, 97, 487. INFERENCES OF FACT, Court may draw, when, 400, 444. INFERIOR COURTS, Jurisdiction of, 274, 275 ; on counterclaims, 303 ; appeal from, to Divisional Court, 282. Transfers from, 275. INFORMALITY, Effect of non-compliance with R. S. C, 666. INFORMATION, 305. INJUNCTION, 259, 468, 470. Actions in other Court not to be stayed by, but Court to stay proceedings, 256, 267. \_See Stay of Pkooeedinqs.] Affidavits used on motion for, 439. INDEX. 703 Indorsemeiitof writ in action for, 468. Interlocutoiy appUcation f or, 468; ex parte, 468. Junsdiotion as to granting, 259, 468, 470. INQUIRIES,. May be directed at any time, 397. District Registry, in, 406. INSPECTION^ Of documents, 388. [See BooraiBNTS ] Of property, 467 ; by judge, 467 ; by jury, 467. INSURE, Power for mortgagee to, 115. INTEREST, Costs, on, 15, 16. Debts and legacies, 503, 604. During stay of proceedings pending appeal, 517. Fund in Court, on, 219, 220. Money of client in hands of solicitor, 24. INTERIM, Investment, 40. Custody or preservation of property, 466. Order, for an injunction, 468. INTERLOCUTORY PROCEEDINGS, To be taken before judge to whom action is attached, 281 ; costs of, 478, 479 Interim preservation, mandamm, injunction, &o., 259, 466 ; for sale, deten- tion of property, or inspection for purposes of evidence, 466. Motion for judgment on admissions, 395, 396. Not to prejudice appeal, 515. Appeal from, time for, 515 ; to be heard by t-wo judges, 282. Written evidence used on, need not be printed, 562. Transfer of, 281. INTERPLEADER, Procedure in, 507 — 509. By holder of chose in action, 259. Power to transfer proceedings to County Court, 303. INTERROGATORIES, For examination of opposite party, 381 ; body corporate, &c., 384 ; scandalous or irrelevant,' 384, 385 ; affidavit in answer to, 386. For examination of witnesses in chambers, 492. Setting aside or striking out, 385. Further answer, 386. Sufficiency of answer to, 386. Penalties for refusing to answer, 392. Security for costs of, 393, 394. Where fraud or breach of trust charged, 381. INVESTMENT, by Paymaster- General, 233—235. Of funds in Court or interest or dividends under order, 233. Amount to be invested, 234. Staying of, 235. Cash under the control of the Court, of, 105, 368. Change of, on application of tenant for life, &c., 368. Lands Clauses Act, under, interim, 31 ; final, in discharge of incumbrances, purchase of other lands, &c., 28, 29 ; application for, how made, 31. Legacy Duty Act, under, 234. Married women, by, 195. Settled Land Act, under, 143. Trustee Relief Act, under, 234. Trustees, by, generally, 105. IRELAND, Transfer of funds to Chancery of, 227. Service of writ in, 321. 704 INDEX. IRREGULARITY, Efieot of non-oomplianoe with E. S. C, 566. IRRELEVANCY, Of interrogatories, 385. ISSUE, 261, 397. Joinder of, 359. Jiiry, trial of, with, 285, 412. Motion for judgment after trial of, 443 ; hefore, 444. Power to postpone or dispense with, 444 ; settlement of, by judge, 397. Order to prepare, 397. Of fact, without pleadings, 405, 406. Costs of, 540. JOINDER, Of parties, 333, 334 ; of causes of action, 353, 354 ; in cases of husband and wife, 354 ; executor, 354 ; trustee in bankruptcy, 354 ; joint and seve- ral UabilHy, 354 ; of action for recovery of land, 353 ; order to confine the action, 354 ; embarrassing, struck out, 333. JOINT AND SEVERAL LIABILITY, rule as to parties in case of, 334, JUDGE, Attachment of action to Court of, 312 ; one may sit for another, 298, 301. Absence of, 301. Appointment of, 297. Insufficiency in number of, 301. Qualifications of, 250, 298. Vacancy in office of, 267, 301. Inspection by, 467. Vacation, 536. Extraordinary duties of, 251. Single, powers of, 264 ; in Court of Appeal, 267. May issue process to compel attendance of witnesses, 303. JUDGMENT OR ORDER, Default, upon, 327—329, 375—377 ; setting aside, 417. Entry of, 444—446. Execution upon, 446, seq. Executors protected from unregistered, 104. Land not to be affected by, until delivered in execution, 177; land to be sold upon summary order, 178. Motion for, 376, 442—444. Upon conditions, &c., 446, 447. Admissions, upon, 395, 396. Absent trustee, against, 87, Notice of, 343, 344. Service of, dispensing with, in partition suit, 184, 185. Declaratory, 372. Antedating, 445. To do an act, to limit time for performance, 445 ; indorsement, 445. Alteration of, by registrar, 380. Drawing up, passing and entering, 532 ; orders in chambers, 507. Setting aside, 329, 417. JUDGMENT ACT, 1864 . . 177. JUDGMENT DEBTOR, examination of, 452. JUDICATURE ACT, 1873.. 248; 1875. .277; 1877. .290; 1881. .296; 1884.. 301. JUDICATURE (FUNDS) ACT, 1883.. 213. JUDICATURE (OEEICERS) ACT, 1879.. 291. JUDICIAL OPINION, &c., of the Court, trustees, executors, &o., may apply for, 102 ; proceedings and fees, 482, 547. JURAT, 436, 437. JURISDICTION, Service out of, 320—322. Attendance of witnesses out of, 303. INDEX. • 705 JURY, Trial by, 411—413 ; of Chancery actions, 411. "JUST ALLOWANCES," 399. KNOWLEDGE, Alleging in pleading, 360. LANCASTER, COTJNTT PALATINE OF, Chancellor of, how far affected by Judicature Act, 276. LAND, Action for recovery of, service of writ in, 319 ; may be joined with other cause of action by leave, 353 ; what is, 353. Meaning of, in Lands Clauses Act, 64, 70, 82 ; in Conveyancing Act, 1881, LAND COMMISSIONERS FOR ENGLAND, 151. LANDLORD, Special indorsement of writ in action by, against tenant, 308. LAND TAX, costs of redemption of , under Lands Clauses Act, 40, 41. LAND TRANSFER ACT, 1875. . 107. LANDS CLAUSES CO^STSOLIDATION ACT, 1845.. 24. Compensation money under, appUoation of, 27, 147 ; may be allowed to tenant for life, 33 ; or apportioned, 34. Costs under, 37, seq. Agreement, in case of, 45. Compulsory purchase, in case of, what are payable by the company, 38 — 44. Deposit may be paid by promotCTS under, and they may then enter on lands before purchase, 46 ; deposit to be repaid on fulfilment of bond, 47, 48. Interpretation clause, 25, 26. Lands, How to vest in promoters on purchase from persons tmder disability, 34 ; where owner refuses to convey or cannot show title, 35. Party in possession of, to be deemed the owner of, 37. Leaseholds or reversions, application of money in respect of, 34. Purchase-money under, when converted into personalty, 28, 36. If amounting to 200?. to be deposited in bank until applied in purchase of other lands, or otherwise, as mentioned in s. 69 . . 27 ; interest not payable by company while money in bank, 28. If between 20?. and 200Z. to be deposited in bank, or paid to two trustees nominated by parties entitled and approved by promoters of under- takiug, 32. If under 20?., to be paid to parties entitled to rents and profits, 32. Reinvestment under, in land, 28. Taxation of costs under, 46, 46. Lodgment in Court under, 225. LAW, To be administered concurrently with Equity, 256. Questions of, 371. LAW COURTS, Name of new, 294. LEASE, . . , Executors, liability of, to rents, covenants, or agreements m, provision tor determining, 100, 101. . . . i. t j Lands Clauses Act, purchase-money paid under, m respect ot, to be apphed. according to the rights of lessees and reversioners, 34 ; renewable and ecclesiastical leaseholds, 34. Forfeiture of, restrictions and relief against, 113, 114. Building and mining, power to grant under Settled Land Act, 188i . . 14/ ; how settled, 168. Settled Land Act, money paid for, under, 148. LEAVE To bid, in partition suit, 181. To defend, where writ specially indorsed, 330 — 332. To renew writ, 315 ; writ of execution, 450. To serve writ, 321. To compound penal action, 471. M. 706 INDEX. LBaACT, Petition to state whether duty paid, 212. Duty to he provided for, in orders dealing with funds, 220, 232. Interest to be computed on, 504. LEOACY DUTY ACT, Applications under, in chamhers, 486. Payment into Court imder, 51, 52. Investment of money lodged under, 234. LEGAL PEACTITIONERS ACT, 1875.. 3. LEGAL EIGHT, To he recognised in all Courts, 257. legatees; Administration hy, 342. LETTERS, What are not privileged, 389. "LIBERTY TO APPLY," 380. " LIBERTY TO ATTEND," 344. LIEN", Chancery jurisdiction as to sale in case of, 263. DeKvery of property subject to, on payment into Court, 470. Solicitor's, on property preserved, 16 — 18 ; on papers, 17. LIMITATIONS, STATUTE OE, Bars legacies and claims under estates of intestates, 106. Trusts not harred hy, 258. Solicitor's charge, hov? affected hy, 16, 18. Must he pleaded as a defence, 358. LIMITED OWNERS, Powers of, under Settled Land Act, 1882 . . 152. LIQUIDATED DEMAND, Indorsement of writ for, 308. LISTS OE ACTIONS, Registrars to keep, 634. LODGMENT IN COURT, 222—226. In satisfaction of claim, 365, seq. Under Lands Clauses Act, 27, 225 ; Legacy Duty A.ct, 61 ; Trustee Act, 78 ; money of infants and persons of unsound mind, 86 ; Trustee Relief Act, 50, 225; Copyhold Acts, 225. Notice of, 211. Schedule, 217 ; form, 242 ; combined lodgment and payment schedule, 218 ; form, 244. LODGMENT SCHEDULE, 217, 218. LONDON COMMISSIONERS TO ADMINISTER OATHS IN CHAN- CERY, 434. LORD CHANCELLOR, Interpretation of word, 276. Appointment of officers hy, 273. Duties of, 251 ; how afEected by Judicature Act, 275, 276. Not a permanent judge of the ^igh Court, 277; president of Chancery division, 262. LORDS JUSTICES, Lunacy, jurisdiction of, in, 279. LUNACY. {See Ltjkatio.] Appeal in, 263. Jurisdiction in, to he exercised hy persons entrusted, 279 ; included in words " Court of Chancery," 204. Orders in, how to be made and entered under Trustee Act, 66 ; under Trustee Relief Act, 67. LUNATIC. ]_See Next Eansiro ; Lotaot ; Unsoumd Mind.] Meaning of word in Trustee Acts, 63. Action by and against person of unsound mind not so found, 338, 339. Consent by, as to procedure, 339. Costs of deceased, 18. INDEX. 707 LTOTATIC— eo»it««ear. Guardim ai, litem to, appointed on appUoation of plaintifl, 326. Jurisdiction of Lords Justices over, 279. Not so found, jurisdiction as to, 339. Orders as to, ho-w made under Trustee Act, 65 ; under Trustee EeKef Act J 67. Service of -writ of summons on, 318. Trustee Act, appointment of new trustee in the place of, under, 80 ; vesting order, m case of, 62. r i i > 5 Tenant for life, position of, 154. MAINTENANCE, Allowance for, out of property the subject of a suit, 470. -Intauts, of, appKcation for, how made, 487 ; evidence required, 495. iTustees may apply income of property in, 121. MANAGEMENT OF PROPERTY, Applications as to, made at chambers, 102. MANAGER, Included in word receiver, 567. MANDAMUS, 259, 467. Action of, 482, 483. MANSION HOUSE, Sale or lease of, 143. MARKING, With name of judge, 312 ; with reference to record, 212, 625. MARRIAGE, Proceedings not to abate by, if cause of action continue, 350. MARRIED WOMAN, Ante-nuptial liabilities of, 197, 198. Actions by and against, 192, 193. Acknowledgment of deeds by, 129, 130. Bare trustee, 107. Questions as to property of, may be summarily decided, 198. Executrix, 199. Existing settiements, 199. Legal personal representative of, 200. Access of, to chil(fren, and custody of those under sixteen, maybe ordered on petition, 98. [See Inpamt.] Allowance, pendente lite, of iaoome of separate estate, made to, 470. Defendant, 192, 338. Payment of money out of Court, to, 30, 230 ; of purchase-money under Lands Clauses Act without acknowledged deed, 30. Plaintiff, how to sue, 192. Restraint against anticipation by, release of, 119, 120. Tenant for life, position of, 154. Property and position of, under Married Women's Property Act, 1882., 192, seg. Trustee and executrix, 199. Remedies of, 196. MARRIED WOMEN'S PROPERTY ACT, 1882.. 192, 338. MASTER OF THE ROLLS, 5, 250. Appointments of oflScers by, 273. To be judge of appeal only, 296 ; duties of, 297. MASTERS OF SUPREME COURT, 292, 624. MAYOR, Service of writ on, 348. MERGER, Rules of equity as to, to prevail, 258. MESNE PROCESS, Arrest on, abolished, 190. MINUTES, Motion to vary, 380. zz2 708 INDEX. MISJOINDER, Action not to be defeated by reason of, 336. Of plaintiffs, costs of, 333. MISREPRESENTATION, Particulars of, to be pleaded, 357. MONEY IN COURT. [See Fotds in Oouet.] MORTaAQE, Consolidation, 115. Action respecting, 115. Conveyancing Act, 1881, proTisions of, as to, 116. Priority, under Railway Companies Act, 1867 . . 176. Deed of, when ordered to be produced, 384. Jurisdiction as to redemption and foreclosure assigned to Chancery Divi- sion, 263. Mortgagor, where mortgagee not in possession, may sue for rents, damages, &o., in his own name, 258. Reconveyance of mortgaged land, 67, 70, 71 ; transfer instead of, 114, 130. Sale of property in action respecting, 116, 116. Trustee Acts, meaning of word in, 63 ; orders under, when mortgagee is lunatic, refuses to convey, &o., 61. MORTOAGEB, , Powers of, under Conveyancing Act, 1881 . . 115. May appeal for costs, 266. MOTHER, May petition for custody of infant children, 98. MOTION, 477, seq. Abandoned, what is, 479 ; costs of, 478, 479. Adjournment of, 480. Aiadavits may be used on, 433 ; may be filed at any time before the hear- ing, 439. Costs of, 478 ; of parties served though not interested, 478. Evidence on, by affidavit, 433. Notice of, 479 ; short, 480 ; with the^writ, 480. EoB JtroaitENT, 442 — 444. In default of pleading, 376. On admissioBB in pleadings, 395, 396. Foe new Tbiai, 441. NATIONAL DEBT COMMISSIONERS, Transactions with, as to funds in Court, 237. NE EXEAT REGNO, DeKvery of copies of affidavits used on application for, 563. NEGLIGENCE, Liability of solicitor for, 21, 643. NEW TRIAL, Motion for, 441, 442. NEW TRUSTEES, Appointment of, under general power given by the Conveyancing Act, 117. Tmder Trustee Acts, 79 — 81 ; to receive sale moneys under Settled Land Act, 1882, where no existing trustee, 149. Powers of, appointed under the general powers given by the Conveyancing Act, or by the Court, to be those of the original trustees, 82, 118. NEXT FRIEND, Generally, 338. Written authority of, to be filed, 339. NEXT OF KIN, Administration of assets by, 342. NON-COMPLIANCE WITH RULES, Effect of, 666. NOTARY PUBLIC, Affidavits may be sworn before, out of the jurisdiction, 435. Seal or signature of, when judicially noticed, 435. INDEX. 709 NOTICE, 561, seg. Appearance, of, 323. Deoree, of, 343, 344. Trial, of, 413, aeg. Written, to be, 561. Constructive, restriction on, 129 InlS^ o?S°30T.*"^ "'^""'''^- ^''^^^^' 306. Of payment in under Trustee ReUef Act. 53 How pleaded, 360. Motion, of, 479. Of fresh proceeding after lapse of a year, 539. To admit facts, 395. Of appeal, 610. Limiting' defence, 325. NUNC PRO TtTNO, Order to enter judgment, unnecessary, 481. OATH, Includes afflnnation and statutory declarations, 277 Administration of, 434, 435. OATHS m CHANCEET ACT (16 & 17 Vict. o. 78), 434. OFFICE COPIES, To be admissible in evidence, 423, 521. Marking, 562. Of affidavit, may be used, 438. Of schedules for Paymaster, 238. OEPICEES, ^"^ to neTj°6ourts 294^^^' ^PP°™*™^°* '^^^ removal of, 273 ; transfer of. Abuse or arrest of, a contempt, 188. OFFICES, 291, 519. When to be open, 536. OFFICIAL PERSONS, Payment out of Coiit to, 229. OFFICIAIi REFEREE. [See TtEVEEEB.I Trial by, 302, 419. Sittings of, 537. OPENING BIDDINGS, Practice of, abolished, 475. OPINION OF COURT, Petition for, 102 ; practice and fees on, 482, 547. OPTION OF PLAINTIFF, To choose division to sue in, 281. ORDERS, What, need not be drawn up, 481. May be enforced as judgments, 451 . Of course for taxation, 6. To entor judgment nrnic pro tunc, not necessary, 481. \And see JuDamBHTS AMD Oedebs.] ORDERS AND RULES, Provisions for making, 282, 285, 293, 298. ORIGINATING. SUMMONS, 488, seq. Address of applicant to be stated in, 489. For adminisb'ation or execution of trusts, 489. Form of, 494. Marking with name of judge, 312. Service of, 483. Transfer of, wrongly marked, 465. OVER-CHARGES, In biU of costs, 12—14. 710 INDEX. "OWNER," Meaning of, in Lands Clauses Act, 35, 37. PAPER, ProTisions as to, 561. PARLIAMENTARY DEPOSITS ACT, 49. PARTICULARS, 357. PARTIES, Order as to, 333—350. Administration suits, rules as to, in, 312 — 347. Amendment of, 337. Change of, by death, &o., 350—353. Deceased, representatives of, dispensed mth or appointed by Court, 344 — 346. For payment of costs only, 334. Joinder of, 333, 334. Misjoinder of, 336. Numerous, in same interest, 335. Partition suits, to, 182. Partners, 337. Paupers, 340—342. Persons under disability, 338 — 340. Represented by some of a class, 342. Substitution of, 333. StriMug out and adding, by amendment, 336, 337. Third parties, 347—350. Trustees and cestuis que trust, 335. PARTITION, Jurisdiction assigned to Chancery Division, 263 ; action for, includes action for sale, 186. Act of 1868, power under, to order sale instead of division, 179, 180 ; sale under, on application of majority of parties interested, 180 ; of some parties interested, 181 ; parties to suits under, 182, 183 ; costs under, 183 ; order made under, and Trustee Act, 1860. .78, 181 ; application of proceeds of sale, 182. Act of 1876, as to dispensing with parties, 184. Settled Land Act, oonourrenoe of tenant for hfe in, under, 141. PARTNER, [a3|fl Jurisdiction as to partnership assigned to Chancery Division, 263. Action by or against, ia name of firm, 337, 338 ; names of partners plaintifiPs to be disclosed to defendant, 314 ; defendants how to enter appearance, 324 ; how person carrying on business in name of a firm is to appear, 324. Judgment against, how enforced, 448. Payment, how to be made to, by Paymaster-General, 231. Service of writ on, 318. PASSING judgments or orders, 632. PATENT, Jurisdiction of Master of the Rolls as to, 252. PAUPER SUITS, 340—342. PAYMASTER-GENERAL. [&e Emros in Cotiet.] Duties of, substituted for Aooountant-General, 204, 205 ; liability of Con- solidated Fund for default of, 205 ; office of, 206 ; may act on affidavits or statutory declarations as to apportiomnent, interest, &c., of funds, 238 ; may furnish particulars of funds in Court, 239 ; instructions to, to be contained in schedules, 218. PAYMENT, Of bill of costs, 12, 13. PAYMENT INTO COURT AND TENDER, 365—368. Consolidated actions, in, 367. Acceptance by plaintiff, 367. Costs, 367. With denial of liability, 366, INDEX. 711 PAYMENT OUT OF COTJET, 226—232. Application for, when made in otambers, 485 — 487. Lands Clauses Act, under, 29, 30. \_See Laotjs Ciattses Act.] Legacy Buty Act, imder the, application for, made in chamhers, 52. Married women, &o., to, 30. Official persons, to, 229. Partners, ordered to be made to, may be made to one or more of them, 231. Payment sohednle, 217 ; form, 243. Post, payment may be made by, 228. Representatives of deceased persons to, 231. Tenant in tail, 30. Trustee Relief Acts, under the, 57 ; costs of petition, for, 55. PAYMENT SCHEDULE, 217, 218. PENAL ACTION, Compounding, 471. PERISHABLE GOODS, Sale of, may be ordered, 466. PERPETUATION OP TESTIMONY, 429, 430. PERSONS UNDER DISABILITY, Order as to, 338—340. PERSONAL REPRESENTATIVES, Payment, &o., ordered to be made by the Paymaster-G-eneral to, 231. Married women, of, 200. Parties, as, Court may dispense with, 344. Trust and mortgage estates, may be conveyed by, 107 ; vest in, 116. PERSONAL SERVICE, What is, 316, 664. PETITION, Advice of Court for, 102, 482. Appearance of infant on, 339. Petitioner, meaning of, 276 ; includes applicant by motion or summons, 276. Allegations allowed in, and new grounds of claim may be raised by, 359. Costs of unnecessary appearances, 42. Confirmation of scheme under Railway Companies Act, 1867 .. 173, 174. Evidence on, by affidavit, 433. Kling of, 522. Eunds in Court, dealing with, 212, 481. Foot note, 481. Service of, 481 ; under Lands Clauses Act, on mortgagees and remainder- men, 42 ; tender of thirty shillings, 42. Trustee Acts, under, 83, 104 ; evidence on, and service of, 84. Trustee Relief Acts, under, 57, 58 ; service of, 63, 59. Two, costs of, 43, 56. PETITION OP EIGHT ACT, I860.. 201. GenersJ Order under, 201. PETTY BAG, Clerk of, 299. PLAINTIIT, Meaning of word in Judicature Act, 276. Option to choose his division, 281. Substitution or addition of, by judge, 333. Suing in representative capacity, 308. PLEA, None in abatement, 366. PLEADING, 354—361. Close of, 370, 376. Law, question of, 371. Conditions precedent, 358. Letters, &c., 360. 712 INDEX. PLEADING — contmued. PartictJars of mierepreBentation, &o., to be stated, 357. Signature, 356. Printing, 357. Scandalous, 360. Statutes of liimitations, I^auds, &o., 358. Costs of improper, 355, 356, 360. Default of, 374—377. Delivery of, 357. Facts to be pleaded not evidence, 356 ; evasive, 369 ; costs of unnecessary matter, 552 ; statiag efieot of documents, 360 ; fraud and notice, 360. Allegations in, not denied, are to be held admitted, 358. Marking witb date, &o., 358. Matters arising pending the action, 370. Statement of claim, 361 ; defence and counterclaim, 362 ; reply and subse- quent pleadings, 369. POLICY OP ASSUKANCE, Effected by husband or wife for benefit of family, 196. Payment into Court of money due under, 52. POETIONS, Baising of, assigned to Chancery jurisdiction, 263. POSSESSION, WRIT OP, 462. POST, Payment by, of dividends on funds in Court, 228. POWIJIl OF ATTORNEY, 122, 130. PRACTICE RULES, Provisions for making, 524. PRAYER FOR GENERAL RELIEF, 362. PRESERVATION OF PROPERTY, interim order for, 466, 467. PRESSURE, Payment of biU under, 7, 12, 13. "PRINCIPAL ACT," Meaning of, 305. PRINTING, 661, seq. Affidavits and depositions, 441, 662 ; except when used on interlocutory proceedings, 562 ; sworn to partly in manuscript, 562 ; written deposi- tions to be printed, 562. Evidence on appeals, 516. Copies for use of judge, 444. Paper for, 562. Pleadings, when necessary, 357. Special case, 401. Writ of summons, 313. Costs of, ordered by the Court, 563. PRIVATE HEARING, 412. PRIVILEGE, Arrest, of officers of the Court, suitors, and witnesses, from, 188, 189. To refuse discovery, 382, 383. PROBATE DIVISION, Rules as to, 283. PROCEDURE, Not inconsistent, to be retained, 284. PROCESS OF CONTEMPT, 188. Arrest on mesne process abolished, 190. PRODUCTION OF DEEDS, Acknowledgment of right to, 112. PRODUCTION OF DOCUMENTS, 388. Referred to in pleadings, &c., 389. District registry, in, 271. INDEX. 713 PRODUCTION OF T)O.CVM.E!<^TS—eontmued. Inspection of doovtments produced, who is entitled to, 390, 391. Time and place for, 390. Subpoena dtices tecum, for, 429. May be ordered at any stage, 424. PEOLIKITT, Costs of, 306. "PROPER OFFICER," Meaning of, 567. PROPERTY, Allowance of income of, pendente lite, 470. Delivery up of, on payment into Court of charge, 470. Inspection of, 467. Management of, applications to be made in chambers, 487. Protection of, pendente lite, 466. ReooTered or preserved, charge on, for costs, 16 — 18. PROPERTY AJSTD TRUSTEES AMENDMENT ACTS, 99, 104. PROTECTION OF SETTLED LAND, Proceedings for, 149. PURCHASE DEEDr, Execution of, 112. PURCHASE-MONEY, Lands Clauses Act, under the, application of, 27, 31. QUESTIONS, Fact, of, 405, 406. Law, of, 400—405. [See Speoiai, Case.] RAILWAY COMPANIES, Service of writs on, 318. RAILWAY COMPANIES ACT, 1867. . 167. [See Lauds Ciaotes Act.] RAISING OF PORTIONS OR CHARGES, Assigned to Chancery Division, 263. RECEIPT, Trustees, of, to be a sufficient discharge, 119. Endorsed or in deed, efEect of, 123. RECEIVER, 259, 467-469, 471-473. Accounts of, when to be passed, 473 ; charging with interest, 472, 473 ; default, 473. Allowances to, 472. Interlocutory application for, 259, 467. Security to be given by, 471, 472. Conveyancing Act, 1881, appointment of , under, 115. Jurisdiction to appoint, 259, 260, 468. Equitable execution by appointment of, 177, 471. Certificate on passing accounts, discharge of, 605. Endorsing writ with claim for, 469. RECOGNIZANCES, To whom given, 519. BECONVEYANCE, Transfer instead of , 114. RECORD Custody of, provisions as to the, reference to, in proceedings, 212, 522. RECORD AND WRIT CLERKS, Abolition of ofBce, 291. Transferred to central office, 619. RECOVERY OF LAND, Action for, joinder of, with other causes of a,otion, 3&d, d64. Defendant in possession need not prove his title, 365. 714 INDEX. EBCTrpiCATION, Of deeds assigned to Chancery Division, 263. Attachment, may not order, 420. Attendance of witnesses before, 420. Setting aside findings of, 268. Appointment of, 272. Eeferenoe of questions to, 267, 268. Trial before official or special, 267, 268 ; 419-421. Eeport of, 421. REPEEENCE, 267, 419. [And see Ebfbebe.] EEFEESHEES, 559, 560. EEGISTEAE, Chakoeet DrviaioN, op, 631-534. Alterations in decrees may be made by, by consent, 380. Attendance of, 531 ; entry of decrees, 532 ; index of entries, 532 ; briefs, &c., to be left ■with, 533 ; appointments, how made, 533 ; time for passing decrees, 583 ; special aUowances, S34. Answer of petitions in name of senior, 534. To keep lists of causes, 534. DiSTEiCT Eeoistbt, OP, 269, 406, seq. [See Disteiot EbQistet.] EEGISTET, 269. [See Disteiot Eboisiey.] EEHEAEINGI-, 509, 610. [See Appeai.] EEINVESTMENT of purchase-monies under Lands Clauses Act, 27-29. EEJOINDEE, 369. EELATOE, Where, Attorney-Greneral must sign original writ, 305 . Written authority of, to be filed, 305, 339. EELIEE, Claim for specific and general, 362 ; in respect of distinct claims, 362. EEMIT, Power of Court to, to referee, 421. EEMOVAL OE ACTIONS, Prom District Eegistry, 408, 409. EENEWABLE LEASEHOLDS, Apportionment of purchase-money for, under Lands Clauses Act, 34. EENEWAL OP WEIT, Of execution, 460. Of summons, 315. EEPAIES, AppUoation of purchase-money in, under Lands Clauses Act, 29. EEPLT, 369, 370. EEPOET, Of examiner, 426 ; of referee, 421. EEPEESENTATIVE, Capacity to be shown on writ, 308 ; denial of, 363. Deceased party, of, dispensed with or appointed by the Court, 344. Payment out to, 231 . EEQUEST, For lodgment in Court, 222 ; investment, 234 ; transcript of account, 239. Por sale under Partition Acts, 180, 181. EEQTJISITIONS, Questions arising on, may be determined on summons, 107. RESEEVED BIDDINGS, 475. EESIDUAEY LEGATEE, Administration of assets by, 342, INDEX. 715 RESIDUES, Calculation to be made in pay office, 238. EETATNER, Of counBel, 669. REVERSION, AppUoation of money paid for, 33, 148. REVIVOR, Order on change of parties, 350 — 352. ROLLma STOCK AKD PLANT, Proteotiou of, from execution, 168. ROLLS. [jSee Mastbe or the Rolls.] Application to strike off, 479. ROYAL COURTS OP JUSTICE, 294. RULES, Under the Pines and Recoveries Act and the Conveyancing Act, 1882, 8. 7.. 131; 8. 2.. 132; the Conveyancing Act, 1881, s. 48., 133; the Settled Land Act, 1882 .. 157. RULES OP COURT, d883. [5ee Table oe Conibnts.] Provisions as to making, 282, 293, 298. SAFE CUSTODY OP DEEDS, Undertaking for, 112. SALE, Conduct of, in administration action, 470. Maybe ordered of real estate, 474 ; of goods, 466; who has conduct of, 475. Abstract of title, &c., when to be laid before conveyancing counsel, 476, 477. Biddings, when opened on, 475 ; reserved, 475. Conveyancing counsel may be employed to settle deeds, 476, 477. Jiuisdiction assigned to Chancery Division,, 263. Judgment creditor, by, 178, 179. Mortgaged property, of, may be directed in action, 115, 116. -Partition suit, in, 179 — 181 ; successive sales in, 186 ; persons under dis- ability, 186. Practice on, in chambers, 474, 475. Perishable goods, of, when ordered, 466. Power of, imder Conveyancing Act, 1881 .. 115. Tenant for life, by, under Settled Land Act, 1882 . . 141. SALE OP LAND BY AUCTION ACT, 1867.. 475. SCANDAL, 360, 552. In pleadings, 360 ; in iaterrogatories, 386 ; in affidavits, 437 ; in bills of costs, 553. SCHEDULE, Directions to Paymaster to be contained in, 218, 221. SCHEME of arrangement may be filed in Chancery by railway companies unable to meet their engagements with their creditors, 169—173. May be confcmed by the Court on application by the directors, 173 ; and, iorolled, 175, 621 ; where railway in Scotland, 175. SCIENTIFIC PERSONS, Assistance of, may be obtained by the Court, 493. SCOTLAND, Service of writ in, 321. SEARCHES, Under Conveyancing Act, 1882.. 127, 128. Official, 523. SECURED CREDITOR, rights of, 280. 716 INDEX. SECTJEITY FOE COSTS, Appeal, of, 616 — 617. Discovery, of, 393, 394. Plaintifi or petitioner, froia, 641 — 543. Not from dMendant or person compelled to litigate, 642. How given, 541, 642. On application for sale under Conveyancing Act, 1881 . . 115, 116. Counter-claim, in case where, 542. Of taxation, 5. "SECURITY rOR COSTS ACCOUNT," Payment into Court to, 393. SEPAHATION DEED not invalid because custody of infants given to mother, 98. SEQT7ESTEATI0N, 190, 454. For costs, 454. SERVICE, 316—320 ; 564, 666. Address for, 309. Agreement to accept, 316. Dispensed with, 342. Jurisdiction, out of the, 307, 320—322. Memorandum of, to be entered, 344. Notice in lieu of, 316, 322 ; filing documents and pleadings where no appear- ance entered, 357. Particular defendants, on, infants, lunatics, and married women, 317, 318 ; partners, 318 ; on corporations, &c., 319 ; on persons interested not being parties, 343. Partition suit, dispensing with, in, 184, 185. Personal, 316, 664. Petitions, of, 481, 652. Substituted, 60, 316, 320. Settled Land Act, 1882, under, 157. Trustee Relief Act, under, 53, 69. Writ of summons, 316—320. Date of, to be indorsed, 319. SET-OFF AND COUNTER-CLAIM, 333, 365. l^nd see ComrrEE-OLAHi.] SETTING ASIDE JUDGMENT, 329, 377, 417. SETTING DOWN, Appeal, of, 513. Action, of, 413, 414 ; for further consideration, 414 ; in defaxdt of notice for trial, defendant may move to dismiss, or set down himself, 413. Further consideration, on, 414 ; short cause, 442. Special case, 402. SETTLED ACCOUNT, 398. Allegation of, 362. SETTLED LAND, What is, 138 ; proceedings for protection of, 148. SETTLED LAND ACTS, 1882 . . 139 ; 1884 .. 166. SETTLEMENT, Affidavit of none, in case of payment out to married woman, 30, 230. Infants may make binding, on marriage with the sanction of the Court, 96. Definition of, in Settled Land Act, 1882. . 139. SEVERING IN DEFENCE, Costs of parties, 647, 648. SHERIFF, Discovery from, 394. SHORT CAUSE, 442. SHORTHAND NOTES, Costs of, when allowed, 549. SITTINGS AND VACATIONS, 534-537. INDEX. 717 SOLICITOR, Acts of FarUament relating to, 1 — 24. [See Taxation.] Account against, action for, 14. Admission and privilegss, &c., of, 188, 274. Acceptance of service by, 316. Address for service of, for plaintiff, 309 ; for defendant, 323. Agreement by, as to costs, 7, 19 — 24. Attachment of, 189. Attendance of, liability for costs in default, 541, 551. Authority of, for issue of writ, 314. BiU of costs of, 1, sey. Chambers in, one may be nominated for a class, 498. Change of, 315 ; as afBeoting lien, 17 ; as affecting costs, 23. Conveyancing Act may be adopted by, 1 23. Defendant, not to be made, for costs, 334. Gruardian ad litem, costs of, 544. Jurisdiction over, 4. Lien of, for costs, on property recovered, 16 — 18 ; on papers of client, 17, 18. Misconduct of, costs occasioned by, 643. Pauper, assigned to, 340. Powers as to; 299. Privileged from arrest, 188, 189. Service oni, 564 ; of order for discovery, 392, 393. Special allowances &, 547. [See Costs.] Suing without nominal plaintiff's authority, 311. Title of, 274. Town agent of, lien of, 17. SPECIAL ALLOWANCES, 547—561. SPECIAL CASE, 400—403. Stated by parties, 400 ; J)y order of Court, 401. Printing and signature of, 401. Persons under disability, 401. Costs, 402. Original, under Sir Gr. Turner's Act, 403 — 405. SPECIALLT-INDOKSED WRIT, 308, 309. [See Costs.] Leave to sign judgment and defend, 330 — 332. , SPECIFIC PERFORMANCE, Jurisdiction assigned to Chancery Division, 263. Effect under Trustee Acts of decree for, 77, 78. SPEECHES ON TRIAL, Order of, of counsel, 418. STAMPS, Order as to, 669 ; on orders under Trustee Acts, 94. STANDING OVER, 363. STATEMENT, Eor advice of judge, 482. STATEMENT OF CLAIM, 361, 362. [_See PLEAUDia.] STATEMENT OF DEFENCE, 362—366. [See PLBADOTCt.] STATUTES, construction of, 271, 272, 294. STATUTES, Will. in. 8&9, 0.11.. 330. Geo. III. 36, 0. 62 (Legacy Duty Act), 51, 52. Will. rV. 1 & 2, o. 68 (Interpleader), 507. 3 & 4, 0. 27 (Limitations), 106. Vict. 1 & 2, c. 110 (Charging Orders), 458, 459. 2 & 3, 0. 64 (Custody of Infants), 99. 3 & 4, 0. 82 (Charging Orders on Stock in Court), 458. 6, c. 5 (Distringas), 460. 6 & 7, 0. 73 (Solicitors Act, 1843), 1. 7 & 8, c. 18 (Lands Clauses Act, 1845), 24. 9 & 10, c. 20 (Parliamentary Deposits Act), 49. 10 & 11, c. 96 (Trustee Relief Act, 1847), 60. 12 & 13, 0. 74 (Trustee ReUef Act, 1849), 60. 13 & 14, 0. 35 (Sir G. Turner's Act), 403. 718 INDEX. STATUTES— continued. Viot. 13 & 14, 0. 60 (Trustee Act, 1850), 61. 16 & 16, 0. 65 (Tnistee Extension Act, 1852), 90. 0. 78 (Oaths in Chancery), 434. 16 & 17, 0. 70 (Lunacy Regulation Act, 1863), 80. c. 137 (Charitable Trusts Act, 1853), 94. 18 & 19, c. 43 (Infants Settlement Act), 96. c. 67 (Bills of Exchange), 307. 0. 124 (Charitable Trusts, 1856), 61. 19 & 20, c. 120]Settled Estates Act, 1866), 182, 20 & 21, 0. 77 (Probate Act), 345. 22 & 23, c. 35 (Lord St. Leonards' Act, 1859), 99. 23 & 24, c. 34 (Petition of Eight Act, 1860), 201. c. 38 (Lord St. Leonards' Act, 1860), 104. 0. 127 (Solicitors Act, 1860), 15. 25 & 26, c. 37 (Crown Private Estates Act, 1862), 64. 27 & 28, 0. 112 (Judgment Act, 1864), 177. 30 & 31, c. 48 (Sale of Land by Auction Act, 1867), 475. c. 127 (Railway Companies Act, 1867), 167. c. 132?inTestment), 106, 106. 31 & 32, 0. 40 (Partition Act, 1868), 179. 32 & 33, 0. 62 (Debtors Act, 1869), 187. 33 & 34, c. 28 (Attorneys and Solicitors Act, 1870), 19. 0. 34 (Charity Funds), 106. 34, 0. 27 (Debenture Stock), 106. 34 & 35, 0. 47 (Metropolitan Stock), 106. 36 & 36, c. 44 (Chancery Funds Act, 1872), 203. 36 & 37, 0. 12 (Custody of Infants Act, 1873), 97. c. 66 (Judicature Act, 1873), 248. 37 & 38, 0. 78 (Vendor and Purchaser Act, 1874), 106. 38 & 39, c. 77 (Judicature Act, 1876), 277. c. 78 (Legal Practitioners Act, 1875), 3. c. 87 (Land Transfer Act, 1875), 107. 39 & 40, c. 17 (Partition Act, 1876), 184. 0. 69 (Appellate Jurisdiction Act, 1876), 286. 40, c. 9 (Judicature Act, 1877), 290. 41 & 42, c. 54 (Debtors Act, 1878), 189. 42 & 43, c. 78 (Judicature (Officers) Act, 1879), 291. 44 & 45, c. 41 (Conveyancing Act, 1881), 109. c. 68 (Judicature Act, 1881), 296. 45 & 46, c. 38 (Settled Land Act, 1882), 139. 0. 39 (Conveyancing Act, 1882), 127. 0. 75 (Married Women's Property Act, 1882), 192. 46 & 47, c. 29 (Judicature (Funds) Act, 1883), 213. 47 & 48, 0. 18 (Settled Land Act, 1884), 166. c. 61 (Judicature Act, 1884), 301. STAT OP PROCEEDINOS, 466. For non-payment of costs of former suit, 374. Fending appeal, 617. Two actions for same matter, 267. ByplaintiflE, 373. Injunction, in lieu of, 256, 257. Pending decision of question of law, 401. When writ was issued without solicitor's authority, 314; when partner's names are not disclosed, 314. ' STOCK, Distringas on, 460. Yesting orders as to, under Trustee Acts, 62. STOP ORDER, 461, 462. Application for, made in chambers, 462 ; costs of, 462. Eueot of, as to priorities, 461. STRIKING OFF ROLLS, Application for, how made, 479. STRIKING OUT PLEADINGS, 360. SUBJECT-MATTER OF ACTION, Value of, 271. SUBMISSIONS TO ARBITRATION, Filing of, 524. INDEX. 719 STJBPCENA, 428, 429. SUBSTITUTED SEEVIOE, 320—322. SUBSTITUTION, Of plaintiff by Court or judge, 333. SUCCESSION DUTY, To be provided for in orders dealing with funds in Court, 220, 232. Petitions relating to money or securities charareable, to state whether paid-, 212. SUEFICIENCT OE AEEIDAVIT, How determined, 386. SUIT. ISee Action.] Includes action, 276. SUITORS' MONET, [fe Fotbs dj Cotjbt.] Deposit account established, and application of money towards reduction of National Debt, 208. SUMMAKT APPLICATIONS UNDER STATUTES, 302. Power to make orders as to, 302, 303. SUMMONS. ISee CHAHBEEa.] To proceed, 496. Administration, ^r, 489. Originating, 488—491 ; on further consideration, 506. Book, 498. Chambers, in, 483 — 485, 494, 495. Evidence on, 492. Writ of, 311. [&e Weit of Summons.] SUPERIOR COURTS, meaning of, 289. SUPREME COURT FUNDS RUDES, 1884. .215. SUPREME COURT OF JUDICATURE, 249. First Masters of, 292. Officers of, 293. Rules of, 1883.. 305. SURVIVORS, Payment out to, 231. TAXATION, Action brought after order for, restrained, 2. Agreement, how far a bar to, 7, 20 — 23. Costs of, 2, 8, 9, 656, 661. Lands Clauses Act, under the, 45. Order for, who may apply for as parties chargeable, 5 ; as third parties inte- rested, 10, 11 ; aa third parties liable, 9, 10; application for, to what court, 1, 6 ; how enforced, 15 ; effect of delay of client, 14 ; where parties differ, 556 ; where unnecessaory, 556. Common, may be made within a month after biU delivered by motion or petition of course, 6 ; without any money being brought into court, 2 ; after one and before twelve months, subject to condi- tions, 3 ; unless verdict for costs has been obtained, or writ of inquiry executed, 2. Special, not necessary because action is pending, 6 ; but is necessary if part only of a bUl is to be taxed, or if the retainer is disputed or there is a special agreement, 6, 7 ; or after verdict twelve months, or payment, 2, 7, 12 ; to be made by summons, 7, 487. Party and party, as between, what allowances made, 555. Payment, after, within twelvemonths, may be ordered under special oircnm- stances, 12. Pressure, in case of, 12 — 14. Notice of, 645. Reference for, 545. Refusal to bring in costs for, 565. Attendance on, 654. Review of, 567 ; before judge, 658 ; not in matters of discretion, &o., 658 ; costs of, 668. Revival of order for, 6. Special allowances on, 547 — 661. Special circumstances, 2, 7, 12. " Where parties differ," 656. 720 INDEX. TAXING MASTER. [See Taxation.] Amount payable under agreement, must he approved by, 20. Set-off by, 553. Assisted by eaob other, 14, 645 ; powers, &c., of, 645, 546, 654, 558. As to costs of parties appealing before, 554 ; scale allowed by, 543. TENANT FOB LIFE, Infant, 154. Limited owners to have powers of, 152. Lunatic, 154. Married woman, 154. Powers of, under Settled Land Act, 1882. . 141 ; contracts by, 147. 'TENDEE, 366. TERMS, Abolished, 260. TESTE, Of writ,- 307. THIRD PARTY, 347—350. Taxation by, under Solicitors Act, 1843. .9, 10. Contribution or indemnity, against stranger, 347 ; against co-defendant, 350. Costs, 350. Leave to defend, 350. Directions, application for, by defendant, 351. Subsequent parties, power of, to bring in, 348. TIMBER, Sale of, by tenant for life, 148. TIME, Order as to, 637—539. Order to do an act to state, for performance, 445. TITLE, when pleaded, 366. TITLE OF ACCOUNT, Length of, 240. TOWN AGENT, Lien of, 17 ; account between solicitor and, 20. TRANSFER, 463—466. Action, of, 264, 463, 464. After order for winding-up or administration, 466. From district registry, 270, 408, 409. From inferior Courts, 276. TRANSFER OF MORTGAGE, In lieu of reconveyance, 114. TRESPASS, Injunction to restrain, 260. TRIAL, 410—422. Affidavit, on, 439—441. Assessors, &o., with, 419 — 422. Chancery actions, with a jury, 411. Early, order for, 466. Entry, in district registry, 416, 416. Mode of, 411. Notice and entry of, 413, 414. Papers for judge, 417. Jury, by, 411, 412. Place of, 410. Proceedings at, 417, 418. TRUST, Action for liquidated amount arising on, 308 ; discovery in action for breach of, 381, 382. Constructive, under Trustee Act, 63, 77. Limitation, Statutes of, not to apply to, 258. Property held on, when not to escheat, or be forfeited, 86. Sale, for, settlement by way of, 156, 166 ; excludes jurisdiction to partition, 181. INDEX. 721 TEUST AND MORTaAGE ESTATES, Devolution of, on death, 107, 116. TRUSTEE, Absence of, decree made in, 87. Appeal for costs by, 266, 540. Attachment of, for non-payment of money, 189. Bankrupt, removal of, 80. Bankruptcy, in, joinder of claims by, 354. Bare, dying intestate, 107. Conveyancing Act, 1881, may be adopted by, 123. Costs of, 266, 540 ; under Trustee BeUef Act, 54, 55 : Trustee Act, 88. Infant, 79. . . . j Investment by, of trust funds, 105. Judicial opinion as to management or administration of trust property or assets may be obtained by, 102. Lunatic, 65, 67. Maintenance, &o., power to allow, 121. New, appointed by the Court under Trustee Acts, 79—81 ; powers of, 81, 118 ; provisions'of Conveyancing Act, 1881, as to, 117 — 119 ; appoint- ment under Settled Land Act, 1882 . . 149. Originating summons by, 488 — 491. Payment out of Court to, 30 ; form of order, 32. Power of sale, how exerciseable by, 119. Powers of, not afiected-by originating summons, 491. Receipt of, a discharge for purchase or mortgage-money, 119. Represents cestuis que trust in suits, 183, 335 ; under Trustee Act, 84. Retirement of, 118. Severing in defence, costs of, 548. Separate, appointment of, 129. Settled Land Act, under, 140. Tenant for life, differences with, 150. Word includes executor, conatructive trustee, &o., but not mortgagee under Trustee Acts, 63. Married woman, 200. TRUSTEE ACT, 1850.. 61; 1852.. 90. Costs under, 87, 88. Orders under, made on petition, 83, 84 ; on motion, 85 ; after decree for specific performance, &c., 77, 78. Wieu made in lunacy, 65 ; in chambers, 84 ; as to charities, 86. [See New Tbustees.] For getting in legal estate in land, or for vesting right to transfer stock or chose in action, where trustees, &c., are lunatic, infant, &c., see analysis of Acts, 61, 62 ; appointment of person to convey, 71 ; as to copyholds, 76 ; money of infants, and persons of imsound mind, to be paid into Court, 86 ; suit may be directed, 89 ; where property is in the colonies, &c., 89. Partition suit, application of, to, 78, 181. New trustee appointed under, 79 — 82. [See New Tbtjsteb.] Vesting orders under, of land, or personalty, 65, 66 ; made by decree in suit, 77, 78 ; on appointment of new trustees, 82. TRUSTEE RELIEF ACTS, 1847 and 1849 (10 & 11 Viot. o. 96), (12 & 13 Vict. c. 74), 60, 60. Applications under, when in chambers, 58. Costs under, 54 — 56. Investment of money paid in under, 234. Payment into Court under, 51, 52, 225 ; by holder of chose in action, 51, 259 ; what securities may be paid in, 54 ; when justified, 64, 55 ; by mort- gagees who have sold under a power of sale, &c., 52 ; by survivors, or majority of trustees, 50, 54 ; Chancery Funds Orders, as to payment in, 53 ; to what account money should be paid in, 53 ; what notices to be given of payment in, and application for payment out, 53, 59 ; how far trustee discharged by, 56. Petition, 68 ; how far equivalent to suit, 57 ; service of petition on cestnia que trust, 59 ; on trustees, 59. TURNER'S ACT (SIR GEORGE) (13 & 14 Viot. o. 36), 403-405. M. 3 A 722 INDEX. UNBORN PEBSONS, Trustee Acts, order made under, in case of, who on coming into existence ■would be trustees, as to contingent rights, 70 ; other interests, 78. UNCLAIMED FUNDS IN COURT, List of, 239. UNDERTAKING, For safe custody of deeds, 112. To accept service, 31C. UNSOUND MIND, PERSONS OF. {See Lunatic] Meaning of the words in Trustee Acts, 63. Commission de Immtico mqitirendo directed conecming, under the Trustee ActSj 88. Jurisdiction as to, in Chancery, 339. Trustee Acts, application respecting, under, whether made in Chanceiy or lunacy, 65. Trustee Relief Acts, order under, in case of, 57. VACANT POSSESSION, Service of writ in -case of, 319. VACATION, 534—537. Judges in, 56. Summons in chambers, issued by one judge for anothei", during, 536. Sittings in, 261, 536. VALUE, Of subject-matter of action, 271. VENDITIONI EXPONAS, Writ of, 454. VENDOR AND PURCHASER ACT, 1874.. 106. VESTING ORDER, Jurisdiction to make, in case of disability of trustees, and form of, 65, 66 ; in case of neglect to transfer stock, &c., 73, 74, 91, 92. In pursuance of a decree, 77. of appointment of new trustee, 82. Power (if convenient) to make alternative order, appointing person to convey, 71, 72. VEXATIOUS INTERROGATORIES, 385 ; matter, costs of, 552. VOUCHERS OF COUNSEL, 560. ' WAGES, Priority of payment of, 280. WARD OF COURT, Infant constituted a, by payment in under Trustee Relief Act, 66 ; but not by payment in under Lands Clauses Act, 28 ; or Legacy Duty Act, 52. Marriage of, 96. WASTE, Equitable rules as to, to prevail, 258. WIFE. \_See Mabeied Womajit.] WILFUL DEFAULT, 397. WINDING-UP, Transfer of action, in cases of, 465. WITHDRAWAL OF RECORD, 373. WITNESSES, 423, seq. [See Evidencb.] Abroad, how examined, 423. Cross-examination of, 427, 428, 440, 441. [See Cbobs-Examination.] INDEX. 723 WTTKESSW— continued. Out of jurisdiction, 303. Costs and expenses of, 424, 426. Befusal to answer by, 425, 426. Conmiissiou to examine, 423, 424. Attendance of, may be required, 427. Perpetuating testimony of, 429, 430. AfBdavits by, 433— 441. Before examiner of the Court, 430 — 433. Examination of, 423 ; de bone esse, 423 ; old, infirm, &o., 423. [See Exami- nation.] Privilege of, from arreSt, 188. Production of, for cross-examination, costs of, 4i0, 411. WRIT, Op Execution, [te Execution.] Of Summons. [&« SpEoiAiiT-lNDOESED "Writ.] Commencement of action by, 306. Order as to, 306 ; teste of, 307. How to be issued, 311 ; and filed, 313 ; concurrent, 314 ; renewal of, 315. Indorsement of date of service on, 307. of claim on, 306 ; indorsement may be altered by statement of «laim, 362. of claim for injunction, &e., 468, 469. of Kquidated demand, 308 ; of claim for account, 309. of address, 309. Renewal of, 315. In administration action, form of, 306. Lost, 316. Service, 316—322. Fieri facias, 453 ; elegit, 453 ; habeas corpus, 455 ; attachment, 455 ; seques- toation, 454 ; delivery, 463 ; possession, 462 ; venditioni exponas, 454, FINIS. LONDON : PRINTED BT C, r. EOWOBTH, QEEAT NEW SIEEET, FETIBE LANE -B.C. TELEGRAPHIC ADDRESS— AnHl IQAQ TELEPHONE— "RHODRONS, LONDON." ilJUU 15JU0, Mo. 1386 (HOLBORN). 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SALVAGE. — Kennedy's Treatise on the Law of Civil Salvage, — By WiLrjAMR. Kennedy, Esq., Q.C. (now a Justice of the High Court). Royal 8vo. 1891. 12*. " The best work on the law of salvage. It is a complete exposition of the Bnbject, and a& such is accurate and exhaustive." — Lam Times. SHERIFF LAW, — Mather's Compendium of Sheriff and Execu- tion Law. Second Edition. By Phujf E. Matheb, 'Solicitor and Notary, formerly Under-Sheriff of Newoastle-on-Tyne. Royal 8vo. 1903. \l. 10s. " "We think that this book will be of very great assistance to any persons who . may fill the positions of high sheriff and under-sheriff from this time forth. The whole of the legal profeSsion will derive great advantage from havrag this volume to consiUt." — Law Times. " The subject ^^ o^® ^^ great practical importance, and this edition will be most valuable in the office of sheriffs and solicitors." — Lam Journal. SHIPPING .—Carver,— Vide ' ' Carriers." Marsden's Digest of Cases relating to Shipping, Admiralty, and Insurance Law, down to the end of 1897, — ByREaiNAi,D Gr. Maesden, Esq., Barrister-at-Law, Author of "The Law of Collisioiis at Sea." Royal 8vo. 1899. 12.10s. Pulling's Merchant Shipping Act, 1894,^With Introduction, Notes, and Index. By Ai,exandeb Pullino, Esq., Barrister-at- Law. Royal 8vo. 1894. JVet, 6s. Pulling's Shipping Cpde; heing the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60). With Introduction, Notes, Tables, Rules, Orders, Forms, and a Full Index.— By Axexandee Puiima, Esq., Barrister-at-Law. Royal 8vo. 1894. Net, 7s. 6d. Temperley's Merchant Shipping Act, 1894 (57 & 58 Vict. 0. 60), With an Introduction ; Notes, including aU Oases decided under the former enactments consolidated in this Act ; a Comparative Table of Sections of the Former and Present Acts ; an Appendix of Rules, Regulations, Forms," etc., and a Copious Index.— By Robeet TEMPEEiiEt, Esq., Barrister-at-Law. Royal 8vo. 1895. 11. 5s. " A full, complete, and most satisfactory work."— iam Quarterly Beaiew. "A monument of well-directed industry and knowledge fflreoted to the elucidation of the most comprehensive and complicated Act."— iaw Jownal. SLAN DERi — Odgers, — Vide " Libel and Slander." SOLICITORS. — Cordery's Law relating to Solicitors of the Supreme Court of Judicature, With an Appendix of Statutes and Rules, the Colonial Attomies Relief Acts, and Notes on Appoint- ments open to Solicitors, and the Right to Admieaion to the Colonies, to which is added an Appendix of Precedents. Third Edition. By A. CoEDBET, Esq., Barrister-at-Law. Demy 8vo. 1899. 1/. 1*. '" The leading authority on the law relating to solicitors." — Law Journal. " A complete compendium of the law." — Law Times, " Thoroughly up to date in every respect."— iaw Quarterly Review. Turner, Vide "Conveyancing" and "Vendors and Purchasers." SPECIFIC PERFORMANCE.— Fry's Treatise on the Specific Performance of Contracts, By the Right Hon. Sir EdwaedFet. Fourth Edition. By W. D. Rawxins, Esc[., K.C. Royal 8vo. 1903. 1^- 1^*' " The leading authority on its subject."— iaw! Journal. * * All standard Zaw Works are kept w Stock, in law calf and other bindings. 28 STEVENS AJST) SONS, I,miTED, STAMP LAWS,— Highmore's Stamp Laws.— Being the Stamp Acts of 1891 : mtli the Acts amending and extending the same, in- eludtog the Finance Act, 1902, together with other Acts imposing or relating to Stamp Duties, and Notes of Decided Cases ; also an Introduction, and an Appendix containing Tables showing the com- parison with the antecedent Law. Second Edition. By Nathaijiei. Joseph Hiqhmoeb, Assistant- Solicitor of the Inland Revenue. Demy 8vo. 1902. 10s. 6d. " The recognized work on the subject." — Law Quarterly Seview, Jan., 1903. " Mr. Hi^bmoie has incorporated in the new edition of this work the legislation of the last three years, so far as it affects the Stamp Ijaws, including the Pinance Act^l902. He has revised the text, added the new autbonties, and mcreased the notes upon departmental practice, a subject which he is peculiarly qualified to discuss. This edition, like the former one, will he found of the greatest use by solicitors, officers of companies, and men of business." — Law JournaX, Dec. 6, 1902. "A veiy comprehensive volume, fulfilling every requirement. . . . The various notes to the sections of the several Acts incorporated in the volume are fully and accuiately set out, the points of the decided cases clearly expressed, and the effect and object of the enactment indicated ; and what must be of especial value to the practitioner, the practice at Somerset House with regard to all matters coming before that institution is stated." — Justice of ike Peace. " Mr. Highmore's ' Stamp Laws ' leaves nothing undone." — The Civilian. STATUTES, and vide " Acts of Parliament." Chitty's Statutes. — ^The Statutes of Practical Utility, from the earnest times to 1894, with Supplemental Volume to 1901 inclusive. Arranged in Alphabetical and Chronological Order; with Notes and Indexes. Fifth Edition. By J. M. Lelt, Esq., Bairister-at-Law. , Royal 8vo. Complete with Index. In li Volumes. 1894-1902. 151. 15s. The Supplementary Volume, 1895 to 1901. Consolidated with Index. By J. M. Lelt, Esq. May be had separately. 21. 2«. "To those who already possess * Chitty's Statutes' this new volume is indispensable." — Law Notes, June, 1902. The Annual Supplements, Separately: — 1896,5s. 1896, 10». 1897, 5s. 1898, 7s. 6d. 1899, 7s. 6d. 1900, 7s. 6d. 1901, 7s. 6d. 1902, 7s. 6d. ■■It is a hook whic]i no public library should be withont." — Spectator, ■■A work of permanent value to the practising lawyer." — Solicitors' Jowrnal. ■■The profession will feel grateful both to the editor and the publishers of a work which will be found of the highest value." — Law Journal. • > A legal work of the very highest importance. . . . Few besides lawyers will, we suspect, realise the amount of work which such an undertaking involves to the editor, who appears to have spared no pains to give a clear, orderly, and methodical character to the com- pilation." — BaiVy News. ■■This collection has fulfilled a purpose of usefulness only to be understood by those who are acquainted with the amazing com- plexity of English statute law, .with its bewildering incoherence and painful heterogeneity." — PaU Mall Gazette. ■ ' Indispensable in the library of every lawyer." — Saturday Review. " To all concerned with the laws of England, Chitty's Statutes of Practical Vtility are of essential importance, whilst to the practising lawyer they are an absolute necessity." — law Times. ■■It is apparently the belief of some popular novelists that lawyers in their difficulties still uniformly consult daily Coke upon Iiittleton and Blackstone. Those who know better are aware that the lawyer's Bible is the ' Statutes of Practical Utility '—that they are his working tools, even more than accredited text-books or ■ authorised reports.' More than one judge has been heard to say that with the ■ Statutes of Practical Utility ' at his elbow on the bench he was apprehensive of no difficulties which might arise." The Times. *^* All standard Law Works are kept in Stock, in late calf and other bindings. 119 & l2o, OHAyCERY L ANE, LONDON, W.O. 29 STATUTE LAW.— Wilberforce on Statute Law, The Prindplea ■whioli govern the Construction and Operation of Statutes. By B. WnaBBFOEOB, Esq., a Master of the Supreme Court. 1881. 18». SUCCESSION, — Holdsworth and Vickers' Law of Succession, Testamentary and Intestate, Demy Svo. 1899. 10a. 6d. SUMMARY CONVICTIONS.— Paley's Law knd Practice of Sum- mary Convictions under the Summary Jurisdiction Acts, 1848-1884; including Proceedings Preliminary and Subse- quent to Convictions, and the Responsibility of Convicting l\inagistrates and their Officers, with the Summary Jurisdic- tion Rules, 1886, and Forms.— Seventh Edition. By W. H. MiONAiLiEA, Esq., Barrister-at-La-w. Demy 8vo. 1892. U. is. TAXPAYERS' GU I DES,— F«fe "House," "Lioome,"& "Land Tax." THEATRES AND MUSIC HALLS.— Geary's Law of Theatres and Music Halls, including Contracts and Precedents of Contraots.-^y W. N. M. Gkabt, J.P. With Historical Introduc- tion. By James WiLUiJiB, Esqrs., Barristers-at-Law. 8vo. 1886. d<. TITLE. — Jackson and Gosset. — F»(fo " Investigation of Title." TORTS, — Addison on Torts. — A Treatise on the Law of Torts; or Wrongs and their Kemedies. Seventh Edition. By Hobacb Smra, Esq., Bencher of the Inner Temple, Metropolitan Magis- trate, and A. P. Pbbobtai, Kebp, Esq., Barrister- at-Law. Royal 8vo. 1893. 11. 18s. "As an exhaustive digest of all the cases which are likely to be cited in practice it stands without a rival." — Law Journal. ** As now presented, this valuable treatise must prove highly acceptable to judges and the profession." — Lato Times. " An indispensable addition to every lawyer'slibrary."— Zuw Magimne. Ball's Leading Cases on the Law of Torts, with Notes. Edited by W. E. Ball, LL.D., Esq., Barrister-at-Law, Author of "Prin- ciples of Torts and Contracts." Royal 8vo. 1884. 11. Is. Bigelow's Elements of the Law of Torts, — A Text-Book for Students. By MEiLviLi,E M. Bioelqw, Ph.D., Lecturer in the Law School of the University of Boston, U.S. A. Crown Svo. 1889. lOs.Bd. Innes' Principles of the Law of Torts.— By L. C. ImiEa, lately one of the Judges of the High Court, Madras, Author of "A Digest of the Law of Easements." Demy Svo. 1891. 10s. 6d. " A useful addition to any law library." — Law Quarterly Review. Pollock's Law of Torts s a Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law. Sixth Edition. By Sir rEEDBiacE Poux>OE, Bart., Bairister-at-Law. Author of " Principles of Contract," " A Digest of the Law of Partnership," &o. Demy Svo. 1901. 1^. 5«. " Concise, logically arranged, and accurate."— iaio Times. "Incomparably the best work that has been written on the subject." — Literature. . . .. . . , " A. book which is well worthy to stand beside the companion volume on * Contracts.' Unlike so many law-books, especially on this subject, it is no mere digest of cases, but bears the impress of the mind of the writer from beginning to end." — Law Journal. " The work is one ' professing to select rather than to collect authorities,' but the leading cases on each branch of the subject will be found ably dealt with. A work bearing Mr. Pollock's name requires no recommendation. If it did, we could heartily recommend this able, thoughtful, and valuable book .... as a very successful and instructive attempt to seek out and expound the principles of duty and liability underlying a branch of the law in which the Scottish and English systems do not materially diSet."— Journal of Jurisprudence. • * All Standard Zato Works are kept in Stock, in law calf and other iindinfft. 30 STEVENS AND SONS, LIMITED, TRADE MARKS.— Sebastian on the Law of Trade Marks and their Registration, and matters connected therewith, including a chapter on Goodwill ; the Patents, Designs and Trade Marks Acts, 1883-8, and the Trade Marks Rules and Instructions thereunder; with Forms and Precedents ; the Merchandize Marks Acts, 1887-94, and other Statutory Enactments ; the United States Statutes, 1870-82, and the Rules and Forms thereunder ; and the Treaty with the United States, 1877. By Lewis Botd SEBASTiiisr, Esq., Barrister-at-Law. Fourth Edij;ion. By the Author and Hasbt Baibd 'H.msmsa, Esq., Barrister-at-Law. Royal 8to. 1899. IL 10». " StandB alone as an authority upon the law of trade-marks and their regis- tration." — Law JoumtU. " It is rarely we come across a lawbook which embodies the results of years of careful inf estigation and practical experience in a branch of law, or that can be unhesitatingly appealed to as a st^dard authority. This is what can be said of Mr. Sebastian's hook "Solicitors^ Journal, Sebastian's Digest of Cases of Trade " Mark, Trade Name, Trade Secret, Goodwil I, &o., decided in the Courts of the United . Kingdom, India, the Colonies, and the United States of America. ByLEWis Boyd SEBASTiiN, Esq., Barrister-at-Law. 8to. 1'879. U. Is. ** Will be of very great value to all practitioners who have to advise on matters connected with trade marks." — SaUdtora* Jtmmdl, TRAMWAYS,— Sutton's Tramway Acts of the United Kingdom} with Notes on the Law and Practice, an Introduction, including the Proceedings before Uie Committees, Decisions of the Referees with respect to Locus Standi, and a Summary of the Principles of Tramway Rating, and an Appendix containing the Standing Orders of Par- liament. Rules of the Board of Trade relating to Tramways, &c. By Henet Sutton, Esq., Barrister-at-Law. Third Edition, including the Light Railways Acts. By Geoboe S. RoBEarsoN, Esq., Bar- rister-at-Law. [In preparation.) TRANSVAAL.— Jhe Statute Law of the Transvaal. Translated. Royal 8to. 1901. 21. 2«. TRUSTS AND TRUSTEES,— Ellis' Trustee Acts, including » Guide for Trustees to Investments. By Abthtje Lee Elus, Esq., Barrister-at-Law. Sixth Edition. By L. W. Btehe, Esq., Barrister- at-Law. Roy. 12mo. 1903. 6«. Godefroi's Law Relating to Trusts and Trustees. — Second Edit. By EJEiiniY Godefboi, of Xiincoln's Inn, Esq., Barrister-at-Law. Royal 8to. 1891. \l. 12«. VENDORS AND PURCHASERS. — Dart's Vendors and Pur- chasers, — A Treatise on the Law and Practice relating to Vendors and Purchasers of Real Estate. By the late J. Henet Dabt, Esq., one of the Six Conveyancing Counsel of the High Court of Justice, Chancery Division. Sixth Edition. By the late Wimiam Baeeek, Q,.C.,Rl0HAEDBTJBD0NHAlDANE,K.0.,andWlIJtlUllRoBBETSHELDON, Esq., B&rrister-at-Law. 2 vols. Royal 8vo. 1888. Zl.l5s. \* A new Edition under the Editorship of Benjamin Lennaed Cheebt, Esq., Barrister-at-Law, is in preparation. Farrer's Precedents of Conditions of Sale of Real Estate, Re- versions, PolioieSf &.C, J with exhaustive Footnotes,- Introductory Chapters, and Appendices. — By Feedeeiok Edwabd Faseee, Esq., Barrister-at-Law. Royal 8vo. 1902. 16«. " Mr. Tarrer has written a rare thing— a new book which will be of real value in a conveyancer's library. . . . We venture to predict that this book will be popular." — Law Journal^ June 7, 1902. " The work, while sufficiently elementary to be of extreme use to students and young practitioners, will also be very serviceable to the more experienced. The notes are essentially practical and are evidently largely deiived from experience, and the forms are adapted to recent decisions. Mr. Farrer's book strikes a new vein, and deserves— and will no doubt seoiire- the support of the profession."— Lwm Times, May 24, 1902. %* All Standard law Works are kept in Stock, m law calf and other hmdvngs. U9 & 120, CHANCERY LANE, LONDON, "W.C. -31 VENDORS AND PURCHASERS—