CORNELL UNIVERSITY LIBRARY 3 1924 085 504 854 MaraljaU iEquttg QloUcrtton (Sift nf IE. i. iiaraljaU. ^^•^- ^- 1394 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/cu31924085504854 THE Practice in Equity BEING THE ' EQUITY ACT OF 1880 AND THE RULES OF COURT ISSUED THEREUNDER Critically Examined and Compared with the present English Practice, with full references to the English and Colonial Cases. BY W. GREGORY WALKER, Of Likcoln's Inn, Baebistek-at-Law, B.A., and late ScHOiiAK op Exeter COLLEaB, Oxford. SECOnsriD EiDiTionsr. BY ■W. GREGORY WALKER and G. E. RICH, Barrister- at-Law, M.A., Sydney, Challis Lecturer in Equity in the University of Sydney, 0. F. MAXWELL (HAYES BROTHERS), gate §ook3tUzx sni) ^ubUahfr, 55 AND 57 Elizabeth Street. 189L J3^3f 0^ PREFACE TO THE SECOND EDITION. In the preparation of this Edition I have had the good fortune to secure the co-operation of my friend, Mr. G. E, Rich, by whom the present Rules were consolidated, and to whose labour and assiduity is largely due whatever improvement this Edition may exhibit; but, as I retained a general supervision of the work, the responsibility for any errors must rest with me. W. GREGORY WALKER. November, 1891. PREFACE TO THE FIRST EDITION. It is somewhat singular that so important a statute as the Equity Act of 1880 has not previously been edited. It is true that not a few of its sections are but re-enactments of the former practice; but, on the other hand, many of its provisions are wholly or in part imported from English Acts or Rules of Court which have never been re-enacted or re-ordered here, and which consequently introduce a procedure novel to the colony. It seemed to me that a book might not be unacceptable which should give at one view the case-law upon the different sections of the Act, and so save the practitioner the trouble of frequent piece- meal reference to various English text-books. To supply this want, however imperfectly, is the object of the following pages. The recent issue of the Equity Rules, consisting in part of old, but in large part of new, provisions, created a like want, which I have endeavoured to supply by the like means. I need hardly say that I have not attempted an exhaus- tive treatment of all the points pf Equity Practice covered by the Act and Rules. To have done so would have necessitated a treatise the very bulk of which would have defeated my intention, which was simply to provide the Profession with a manual which should point out concisely the chief details of the new practice, its operation, and (with regret be it added) its difficulties and ambiguities, adding at the same time, with all deference, and in no carping spirit, some few criticisms and suggestions. VI. PREFACE TO PIEST EDITION. My task has not been very easy, and errors both of omission and commission will no doubt be discovered in what I have written. I invite members of the Profession to point these out, and to communicate to me any addenda or corrigenda which may occur to them. The English Consolidated Rules and Orders have been cited as Cons. Ord., r. ; the Rules and Orders issued under the Judicature Act as 0.,r.; the Rules recently issued under our own Equity 4.ot as R. W. GREGORY WALKER. February, I884. CONTENTS. THE PRACTICE IN EQUITY. PAOE Table ov Statutes ix. Table of Cases xi. The EQFiTr Act of 1880 (44 Vict., No. 18) 1 Schedules to Act 94 The Consolidated Equity Rules of 1891 97 Schedules to Rulbs—Fobms ... 236 Appendix— Time Table ... 247 ADDENDA ET COERIGENDA. Page 3, notes to s. 4, add Dickson v. Tange, 12 N.S.W.R. Eq., and A.J.S. Bank v. Dodds, 8 N.S. W.W.N. 31. Page 8, note s. 8, add Aylward v. Lewis, 1891, 2 Ch. 81. Page 34, notes to s. 33, add Mangan v. Metropolitan Electric Supply Company, 1891, 1 Ch. 551. Page 41, s. 41, second line, /or ot read by. Page 41 , s. 42, fourth line, for has read had. Page 47, notes to s. 47, add Williams v. Frere, 1891, 1 Ch. 323. Page 53, in notes to s. 51, eighth line from foot of page, /or with read of. Page 59, at foot of page, /or E. 26 read E. 27. Page 138, K. 102, note, for s. 29 read s. 20. TABLE OF STATUTES. Charter of Justice, s. 18 .. 4 Vict., No. 22, ss. 20, 21.. s. 28 5 Vict., No. 9, ss. 12, 13 .. 11 Vict., No. 22 11 Vict., No. 27 12 Vict., No. 1, s. 8 13 Vict., No. 31 13 & 14 Vict., 0. 35. s. 28.. 15 & 16 Vict., c. 80, ss. 11, 13, 26 s. 27.. g^ 29 ss. ZO, 31, 32 ss. 33, 34 sa. 40, 42 15 & 16 Vict., c. 86, s. 7 ... s. 15... s. 16... ss. .18, 20 s. 19... s. 22... s. 38... s. 39... s. 40... s. 42... ss. 44, 49 s. 48... s. 50... s. 51... s. 52... s. 53... s. 54... s. 55... 16 Vict., No. 3, s. 1 s. 19 s. 57... s. 58... 59... 62... ' s, PAGE 213 95 38 95 95 213 106 122 41 73 74 75 76 77 46 43 27 28 25 21 45 42 39 48 7 8 54 49 10 70 72 58 59 60 61 48 3 212 189 16 Vict., No. 13 16 Vict., No. 19, ss. 30-40, 48 17 Vict., No. 4, ss. 8-10 ... 17 Vict., No. 7 17 Vict., No. 21, s. 74 . ... 17 Vict., No. 22 18 Vict., No. 13, ss. 2, 3 ... 20 Vict., No. 2 20 Vict., No. 31, s. 23 ... 21 Vict., No. 7 ss. 1, 5 s. 3... 21 & 22 Vict., c. 27, s. 25 & 26 Vict., c. 42, s, 2 ... 3 ... 4 ... 5 ... 12... 1 ... 2 ... 26 Viot., No. 12 s. 30 s. 34 s. 37 ss. 53, 57 36 & 37 Vict., c. 66, s. 56... s. 24 (3) s. 25 (8) s. 25... 37 Vict., No. 11, s. 7 37 Vict., No. 19, ss. 153, 207 44 Vict., No. 18 44 & 45 Vict., c. 59 46 & 47 Vict., c. 49 .3 ... 46 & 47 Vict., c. 57, a. 29 (2, 3, 50 Vict., No. 20, s. 13 and B. 36 50 Vict., No. 36 51 Vict., No. 19, s. 13 (2)... 54Vict.,No. 25, s. 62 .. PAGE 95 215 115 95 133 205 43 214 143 209 210 211 30 34, 36 35 37 92 3 38 212 109 203 95 198 46 17 61 92 111 143 1 70 30 41, 49 4) 136 ... 196 2 ... 198 ... 189 TABLE OF CASES. A. Abram v. Ward Adams v. Claxton Adamson v. Gill Adamson v. Hall 222 195 47 163 A.-Gr. V. Biphosphated, &c., Co.... 137 A.-Gr. V. Chambers 46 A.-G. V. Clapham 26 A.-G. V. Colney Hatoh^ &c. ... 47 A.-G. V. GaskiU 141 A.-G. V. G.E.R. Co 4 A.-G. V. Merthyr Tydfil 47 A.-G. V. Mid. Kent R. Co, and S.E.R. Co 64 A.-G. V. Try 13 Ager V. P. and O., &c., Co. ... 67 Agricultural, &o., Co 74 Agriculturist, &c., Co., Se ... 78 Aitken, Andrew V 71 A. J.S. Bank V. Steel 147 Alcock, Backhouse V 42 Alexander v. Nurse 45 AUcock, Coch V 44 Allen, Massey V 127,128 Allen V. Ayres 30 Allen, Griffin V 80 Allman, Doherty v. 33 Alsop V.Bell ... 71 Anderson v. Butler's Wharf Co.... 78 Anderson v. Stather 126 Anderson V. Wallis 162 Andrew V. Aitken 71 Andrews v. Salmon 67 Andrews, Toke V 18 Angas, Lee V. 48 Angell, Henshaw V. 194 Anglo-American Brush Electric Light Corp., Crompton v. ... 136 ■ Anglo- Austrian Bk., i?« 25 Anglo-Danubian Co. v. Eogerson. . 33 Anglo-Italian Bank v, Daviea 62, 66 Anlaby v. Praetorius 53 Anning V. Layers ... .„ ... 56 Anon 144, 151 Arbuthnot, Fyfe v 5Q Armitage, Smith V. 148 Armour v. Walker 44 Armstrong, Smith v 194 Arnison V. Smith 87 Arnot's case Artleys, York, &o,, Co. v Ashton V. Wood ... Ashwin, Davis V Aslatt V. Corp. of Southampton A.S.N. Co. V. Smith Aspinall V. Bourne Aste V. Stumore Attwood, Beckett V. Attwood V. Chichester Auster V. Haines Automatic, &o. j Co. , Combined, &c. Machine Co. v. Ayres, Allen V Ayres, Waterman V. . 55 . 194 . 59 62,63 . 158 . 195 . 15 . 80 . 171 . 71 30 68 Backhouse V. Alcock 42 Backhouse v. Charlton 55 Bacon V. Turner 46 Badische Anilin, &c., v, Levinstein 136 Baillie V. Jackson 45 Baird V.Wells 67 Baker, Smith v 53 Ball, Franklinski V. 31 Ballard V. Tomlinson 68 Balls, Gaskin V 62 Banks V. Cartwright 58 Banque Franco-Egyptienne v. Liitscher 44 Barker, Cox V. ... 11,50,51,52 Barnard v. Wieland ... 107, 140 Barnard, Wycherley V 194 Barney v. United Telephone Co.... 68 Barnum, De Francesco V 67 Barrett V. Day 68 Bartholomew v Rawlings ... 19 Barton, Taylor V 99 Bassett, Nadin V 44 Bassett, Whiting y. 46 Bastard, Grove V 49 Bastard, Wallis V 74 Bates, Hedley V 64 Bates v.Eley 188 Battams, Ogden V 58 Batty, Day v 172 Bauman V. Matthews 33 Baxter, Bennett V 182 TABLE OF CASES, PA02 Bayley, Proctor V 31,68 Baylls V. Watkins 195 Bealey, Fletcher V. 68 Beall, Quartz, &o., Co. V. ... 63,64 Bean, Hermann Loog V 65 Bear v. Smith 41 Beardmore v. Gregory 9, 71 Beaumont, Sachs v. ... 64, 175 Beckett V. Att wood 80 Beckett V. Ramsdale 189 Beddall V. Maitland 18 Beddow V. Beddovv ... 62,64 Beeaon, Dawson V 53,110 Bell, Alsopv 71 Bell V.Turner 46,59 Bellamy v. Cookie 56 Bellohamber v. Giani 224 Benham, Tod-Heatly V 67 Bennett v. Baxter ... 182 Bennett v. Moore 107 Bentley V. Craven 60 Beny on V. Evans 87 Berdan v. Greenwood ... 44, 157 Beresford, Clements V. .. ... 199 Bernard v. Hardwiek ... ... 118 Bernard, Thomas V. 28 Berrington, Domoille V 197 Berrington, Price V. 223 Berry V. Gaukroger 194 Best, Mearsv 56 Betts V. DeVitre 52 Betts v.Gallais 32 Betts V. Neilson 30 Bevington, Bradley v. ... . . 34 Beyer, Drover V. ... ... ... Ill Biok V. Motly 76 Bidder V. Bridges 22,44 Bidder V. McLean 130 Biddulph V. Camoys 126 Bierdermann v. Seymour 223 Bignold, JJe 191 Bigsby V. Dickinson 86 Biles, Yettsv 224 Billinghurt, Exchange and Dis- count Bank v ,. 86 Bilton, Saner V 20 Bingham, Licensed Victuallers', &c., Co. V 68 Binns, Swallow V. ... 10 Biphosphated, &c., Co., A.-G. v... 137 Birch V. Williams 171 Bird, Sydney, &c., Co. v 127 Birmingham Estates Co. v. Smith 19 Birmingham, &o., Land Co., v. London, &o., R. Co 52 Birmingham Syndicate, Swindell v. 81 Bishop, Exparte 178 Bishop, iJe 69 Bishop, Gosnell v 229, 230 Blaohford, ifc 191 PAGE Blackford v. Davis 68 Blake, Griffith V 65 Blakelook, Taylor v 137 Blaker v. Herts, &o., Waterworks Co 69 Blakey V. Latham 220 Blanchard, Rattray V 178 Bland V. Davison 70,71 Bloomfield, Colverson V Ill Blunt, Jennings V 5 Blunt V. Terry 34, 38 Blyth and Young, Re ... 81, 82 Boby, White V 31 Bogg V. Midland Ry. Co 50 Bolton V. Bolton 44 Bond, Lord Suffield V 52 Bonner V. G.W. Railway Co. ... 65 Bonnard V. Perryman 64 Bonsor V. Bradshaw 34 Booth V. Coulton 73 Booth, Nelson V 58 Borthwiok V. Evening Post ... 68 Boswell V. Coaks 228 Bourke v. Wright 16, 153 Bourne, Aspinall V. 195 Bowes, Clements V 8, 9 Boydell v. Manby 57 Boyle, Messer V 55 Boyle, Sacker V. 53 Boyse, Ee ... '. 44 Bradley V. Bevington 34 Bradnnm, Winterfield v. ... 18, 172 Bradshaw, Bonsor v. 34 Bradshaw, Ha wkesley V 157 Brancker V. Came 22 Breden v. Breden 175 Brentini, Mason V 20 Briant V. Tibbut 194 Bridges, Bidder v 22, 44 Brier, He ■■■ 174, 195 Briggs, Lady Langdale V 49 Bright V. Legerton 28 Briscoe, Hawkins Hill G. M.Co. v. 11, 12 Bristbw V. Whitmore 50 Brocklebank v. King's Lynn Steamship Co 127 Brooke V. Brooke 45 Brooking, Maybery V 169 Brooking, Woodford V 56 Brooks, Dicks V 85,86 Brooks, Manchester, &o., Co. v.... 18 Brooks, Mellish V 223 Brotherhood, Halsey v 64 Broughton, Chappell v 65 Broughton V. Rodd 91 Broughton, Wilson V 223 Brown, Be lo Brown, Cox V - 90 Brown v. De Tastet 188 Brown, &o., Co., Finska, &c., v.... 20 TABLE OF CASES. Xlll. Brown v. Gellatly Brown V. MoEncroe ... 153 Brown v. Pearson 107 Brown, Upton v Browne V. Collins Brownrigg, Day v. . . . Broxburn Oil Co., Burjand v. Buchan, Smith v 107 Buckle V. Fredericks Bucknell v. Vickery Bull, Ledyard V Burch V. Rich . . Burchell V. Giles Burgess, Rowley V. Burgoine v. Taylor Burland v. Broxburn Oil Co. Burmester v. Moxon Burnell v. Burnell ... Burnham, Momsen V Burrell, Krehl V Burstall V. Fearon Burt V. Wall Burton, Kirkley V. Bush V. Trowbridge Waterworks Co Bush V. Watkins Bustros V. White Butler, Mayne V. ... Butler's Wharf Co., Anderson v. Buxton, Ross v Byam v. By am Byng, Webb v. Byrd V. Nunn PAOE 220 228 108 78 58 62 68 140 67 91 136 118 219 60 171 107 219 33 163 82 118 131 41 25 46 78' 60 49 50 139 C. Caddick v. Cook 10 Caird V. Sime 67 Callow, Clarke V 130 Callow V. Howie 28 Cameron v. Cameron ... 4, 142. Camoya, Biddulph V 126 Campbell V. Moxhay 56 Campbell, Sempill V 177 Carew, Clive v 28 Carington, McDonald V 19 Came, Brancker V 22 Carrick, Ralph v 88 Carriers' Co. V. Corbet 30 Carron Co., Stain ton V 58 Carter, Chubb V 60 Carter V. Sanders 9 Carter V.Wake 55 Cartwright, Banks V 58 Case, Hipgrave V 33,158 Case V. Midland Ry. Co 47 Cashin V. Cradock 157 Castle, i?fi 228 Gate V. Devon, &c., Co 67 Cator V. Reeves 55 PASE Catterson, Myers V. 68 Catton V. Wyld 30, 31, 33 Cavander's Trusts, i?(! 88 Chaffers, Howard V. 41 Challender V. Royle ... 65,68 Challia, Rogers V. ... ' 31 Chambers, A. -G. v. 46 Chapman v. Guardians of Auck- land Union ... ... 30, 32 Chappell V. Broughton 65 Charing Cross Bridge Co. , Tillett v. 31 Charlton V. Charlton ... 80,229 Charlton, Backhouse v 55 Chennell, Re ... ... ... 174 Chennell, Jones v 85, 86 Cheston, Holloway V 78 Chichester, Attwood V 171 Child, Ex parte 42 Childers, Mackenzie V 67 Chilton V. Corporatian of London 108 Cholmondely, Cooke v 56 Chubb V. Carter 60 Church, Wilson v 10, 22 Churchill V. CoUer 43 City Offices Co., Stokes v. ... 47 City of London Brewery Co. v. Tennant 32 City of Moscow Gas Co., Inter- national Financial Co. v. ... 81 Clapham, A.-6. V 26 Clark, Feltham V 169 Clarke V. Callow 130 Claxton, Adams v 195 Clay don V. Green .. 4 Clayton Mills Mfg. Co., iJ« ... 81 Clegg V. Hands 67 Clegg, Pares v 61 Clements v. Beresford ... 199 Clements V. Bowes 8,9 Clifle,La3lettv 56 Clifford, Wright V 171 Clive V. Carew 28 Coaks, Boswell V 228 Cobb, Steel V 126 Coch V. AUcock 44 Cochrane V. Fearon 127 Cockle, Bellamy V 56 Cookie V. Joyce 171 Cohen, Edevain V 137,158 Coleboume V. Coleboume 61 Coleman V. Mellersh 58 Coleman, Reynolds v 53 CoUer, Churchill V 43 CoUette V. Goode 139 CoUey V. Hart 68 Collins, Browne V 58 Collins V. Featherstone ... 87,131 Collins, Mayor V 115 Collins V. Stutely 33 Collins V. Vestry of Paddington 81, 82 TABLE OF CASES. PASE CoUyer, Savers v 30, 67 Colman v. Northcote 126 Colman, WooUey V. . 220 Colney Hatch, &o., A.-G. v. ... 47 Colverson V. Bloomfield Ill Combined, &c., Machine Co. v. Automatic, &o., Co 68 Commerell V. Hall 72 Commissioners, &o., v. Gellatly... 10 Commissioners, &c., of London v, Glasse 22 Compagnie, &c., v. Peruvian Guano Co 25 Concha, De Mora V. 42 Cook, Caddiok V 10 Cooke V. Cholmondeley 56 Cooke V. Smith 147 Cooke v.Wilby 45 Cookes V. Cookes ... ... ... 68 Cooper, Farrar V. ... ... ... 67 Cooper, Meacham v. ... ... 187 Cooper V. Moon 46 Cooper, Prince V 59 Cooper V. Smyth ... ... ... 65 Cooper V. Whittingham ... 63, 65 Corbet, Curriers' Co. v 30 Cornwall, Harrison V 88 Corporation of Hythe V. East ... 30 Corporation of London, Chilton v. 108 Corp. of Southampton, Aslatt v. 62, 63 Corsellis V. Patman 56 Cory V. Thames Ironworks Co, 31, 33 Coulton, iJe 53 Coulton, Booth V 73 Coventry, Evans V 9 Cowan & Co. V. Spalding 158 Cox V. Barker ... 11, 50, 51, 52 Cox V. Brown 90 Cox, Johnstone V 88 Cox's will, iie 109,212 Cradook, Cashin V 157,158 Cradock V. Owen 195 Craig V. Phillips 80,81 Craven, Bentley V 60 Crawley, Noyes V 130 Creslook, Heath V 55 Croall, MoVeagh V. 25 Crompton v. Anglo-American Brush Electric Light Corp 136 Cropper V. Smith 158 Crosley, Be 83 Cross, London and Blackwall B. Co. V 63, 67 Cross V. Maltby 194 Crossly v. Dixon 22 Crowfoot V. Mander 70 CuUen, Hood V 79 Cumberlege, Feuton V 48 Curteis, Garwood V. 21 Curtis V. Sheffield 81 D. Dalgety & Co., Selfe v Dakins v. Garrett . . . Daniel, Faulkner v. Daniel, Petty v. Darby v. Whittaker Daubuz V. Peel Davenport v. Rylands Davenport v. Stafford Davey v. Durrant .. .. 224 .. 229 .. 169 .. 53 31 .. 169 31,33 .. 165 42 Davies, Anglo-Italian Bank v. 62, 66 Davies, Be 185, 195 Davies, Bno v. 81 Davies, Fulkes v 72 Davies V. Marshall 222 Davies, Powell v 93 Davies, Smith V 107,140 Davis, ite 45 Davis V. Ashwin 59 Davis, Blackford V. 58 Davis V.Davis 195 Davis V. Earl of Dyaart 50 Davis V. Galmoye 85 Davis, Lillisv 79 Davis, Wakelee V 130 Davison, Bland v 70, 71 Davy V. Garrett ... 142, 157, 158 Dawbarn, Hentsch v 109 Dawkins v. Lord Penrhyn 129, 130 Dawkins v. Mortan ... 28, 78, 195 Dawson, Be 126 Dawson V. Beeson 53,110 Dawson, Dean V 91 Dawson, Howell V. 69 Day, Barrett V 68 Day V. Batty 172 Day V. Brownrigg 62 Dean v. Dawson 91 Deane V. Thwaite 58 Dear, French V 118 Deaven, Saner V 163 De Boinville, Williams V. ... 53 Deeks V. Stanhope 71 De Francesco v. Barnum 67 De Mestre V. West 91 De Mora V. Concha 42 Dent V. Dent 25 De Tastet, Brown V 188 De Trafford, Lancaster V 31 De Vitre, Betts V 52 Devon, &c., Co., Cote V 67 De Windt V. De Windt 50 Dibbsv. Dibbs 158 Dioken V. Hamer 74 Dickinson, Bigbsy v 86 Dick, Lady de la Pole V 83 Dicks V. Brooks 85, 86 Dickson, Holland V. 64 Dickson, Warde V 28 TABLE OF CASES. Dight V. Gordon 79 Dimsdale, Sturge V. ... 227,229 Directors, &o., V. Kiach 85 Dixon, Oroasley V 22 Dixon V. Dixon 76 Dixon, Stumm v 220 Dixon V. Williams 79 Doherty V. AUmau 33 Domville V. Berrington 197 Donohoe, United Telephone Co. v. 108 Doody V. Higgins iO Dover, London, &e., Co. v. 56, 59 Dowling V. Dowling 49 Down V.Ellis 189 Doyle, Dunne v 71 Drakes, Bobinson v. ... ... 88 Drevon v. Drevon 46 Dreyfus v. Peruvian Guano Co. 30, 32 Dreyfus, &c., & Co., Republic of Peruv 65 Driffield, &c., Co. v. Waterloo Mills Co 68 Drover v. Beyer Ill Druitt, Hellyer V 183 Duchess, &e., Co., Ue 83 Duckitt V. Jones 118 Dudgeon, MoArthur V 188 Duffield V. Sturgea 27 Duke of Newcastle, Jackson V. ... 33 Dunne V. Doyle 71 Durell V. Pritohard 31 Durham, Wood v 158 Durrant, Davey V 42 Dyke V. Stephens 115 E. Earl of Dysart, Davis V 50 Earl of Dyaart, Pennel V 50 Earl of Jersey, Shaw V 64 Earl of Shaftesbury, Lewers v. ... 31 Earl'a Truats, Be 45 Eaat, Corporation of Hythe V. ... 30 East, Fleming v 41 East London Waterworks Co., Hayward v 63 Easterbrook, Saxby v 64 Eastwood V. Lever .32,33 Eberleinv. Eberlein 79 Eccles V. Liverpool Borough Bank 224 Eckersley, Taylor v. 67 Edge, Soames v 31 Edevain V. Cohen 137,158 Edwards, Paine v 55 Electrical Storage Co., Union Elec- trical, &c., Co. V 136 Eley, Bates v 188 Ellis, Down v 189 Ellis V. Walmseley 224 Ellison, Glover v. ... Elsom, Thomas v. ... Elwood, Lyle v. Elwyn, Fussell v. ... Emery, Hindley v. Eno V. Davies Ensworth, Kimber v. PASK ... 188 ... 78 ... 46 ... 223 30, 31, 32 ... 81 ... 169 Erlanger, Republic of Costa Rica v. 128 Esdaile V. Payne 81,87 Etches, Smith v 9 Evans V. Beny on ... 87 Evans v. Coventry 9 Evans v. Manchester, &c., R. Co, 52 Evans, Roberts V _ ... 9 Evening Post, Borthwick v. ... 68 Evennett v. Lawrence . . ... 80 Ewart V. Williams 58 Ewin, Hall, v 67 Exchange and Discount Bank v. Billinghurst 86 Farington, He 219 Farman, Re 189 Farquharsou V. Pitcher .. ... 224 Farrar V. Cooper 67 Farrer, Naylor V 19 Farron, Graham v 55 Faulkner V. Daniel 169 Fearon, Cochrane V. 127 Featheratone, Collins V. ... 87,131 Fell V. N.S.W. Shale & Oil Co. ... 3, 4 Feltham V. Clark 169 Felton's petition re Underwood'a will ... 192 Fenton V. Cumberlege 48 Ferguson v. Wilson 31 Fernie, Hallows V ... 9 Fernle V. Young ... 34,35,37,38,80 Ferrand v. Mayor, &c., of Brad- ford 52 Finch V. Finch 189 Finney, Morley V 189 Finska, &c., v. Brown, &c., Co. ... 20 Fisher, Lees v 55 Fisher, Olley v 130 Fitzpatrick, Spedding v 157 F. Keene & Byne, Pike v. ... 120 Fleming V: East 41 Fletcher v. Bealey 68 Fletcher, Pease v 66 Fletcher, Stockton Coal Co. v. ... 91 Forbes, Re 45 Fordv. Tynte 47 Forteath, Bumbold v 26 Forester v. Upman 65 Foster V. Harvey 55,66 Foulkes V. Davies 72 TABLE OF CASES. Fowler V. Reynal ... Fox, Hope V Franklinski v. Ball... Fraaer v. Kearney ... Frazer v. Thompson Fredericks, Buckle v. French v. Dear Frewin v. Lewis Fritz V. Hobson Fuller, Morgan v. ... Fussell V. Elwin . . . Fyf e V. Arbuthnot , . G. PAGE ... 41 9 ... 31 ... 115 ... 220 ... 67 ... 118 ... 64 30, 31, 33 ... 35 ... 223 ... 50 Gallagher, Glynn v. 175 Gallais, Betts V 32 Galmoye, Davis v 85 Gamble, Harris V 19,139 Gamgee, Moore V 53 Gandy V. Macaulay 189 Garlick V. Lawson 49 Garnham V. Skipper 148 Garraway, Piggottv 165 Garrett, Dakins V 229 Garrett, Davy v. ... 142, 157, 158 Garrod v. Holden 117 Garwood V. Ourteis ... ... 21 Gaskill, A.-G. v 141 Gaskin v. Balls 62 Gaukroger, Berry v. 194 Gawthorpe V. Gawthorpe 66 Gearon, Burstall V 163 Gellatly, Brown V 220 Gellatly, Commissioners, &o. v. ... 10 George v. Whitmore 34 G. E. R. Co., A.-G. V 4 Giani, Bellchamber V 224 Gibb, Original, &c., Oo. v. ... 18 Gilbert V. Hudlestone 79 Gilbert V. Smith 107,108 Giles, Burchell V 219 Gill, Adamson V. .. 47 Gilmore, Sheppard v 66 Girdlestone v. Lavender 56 Gladstone, Steuart v 44 Glasse, Commissioners, &o., of London v 22 Glassop V. Heston and Islewortli Local Board 64 Glover V. Ellison 188 Glover, Hutchinson v 25 Glynn V. Gallagher 175 G. N. R. Co., North London R. Co., V 63 G. N. R. Co., Swaine v 31 Golding V. Wharton Saltworks Co. 157 Goode, Collette V 1.39 Goode V. Onslow 225 PAGE Goodhart V. Hyett ... 65 Goodsell V. National Bank of Australasia 34, 35, 36 Goodwin, Lever i ... 68 Gordon, Dight v ... 79 Gordon, Poole V ... 221 Gosling V . Gosling ... 49 Gosnell V. Bishop 229, 230 Goss, Be ... 45 Gover v. Stilwell ... 229 Government Newfoundland V. Newfoundland Ry. Co. ... 18 Govers'case.. ... 86 Graham v. Farrou ... 55 Grange, Taylor v ... 86 Grant V. Grant ... 189 Grant, Stokes v ... 157 Grant, Twycross v. ... 144 Gray, Lane V ... 25 Gray V.Webb ... 19 Great Australian, &c. , Co. v. Mar- tin ... 118 Greaves, Be ... 126 Green, Claydon v 4 Green v. Prior ... 65 Green v. Sevin ...18,19 Greenwood, Berdan v. 44, 157 Greenwood v. Hornsey ... ... 33 Greenwood, Middleton v.... ... 31 Gregory, Beardmore v. ... ... 9, 71 Griffin V.Allen ... 80 Griffin v. Mercantile Bank ...30,34 Griffin v. Tonkin M. Co. ... ... 31 Griffith v. Blake 65 Griffith V. Ricketts ... 162 Griffiths V. London, &c., Docks ... 158 Grove V. Bastard ... 49 Guardians of Auckland Union, Chapman v ...30,32 Guest, Williams v ... 39 Gurney Brick Co., Barker's case Re 153 Gutteridge, Phillips v. ... 56 G. W. Railway Co., Bonner v ... 65 G. W. R. Co., Purnell V. ... ... 82 H. Hadlow, Martin v Haggitt V. Iniff Haines, Auster V. ... Hall, Adaii.son V. ... Hall, Conimerell v . Hall V. Ewin Hallam, Vernon v Halliday v. Heppenstall Bros. Hallows V. Fernie Halsey V. Brotherhood Hamer, Dicken v Hammond , Pierce v. 59 45 71 163 72 C7 67 136 9 64 74 195 TABLE OF OASES. xvu. Hampden V. Wallis FASE 53 Hanbuiy, Parkinson V 117 Hands, Cleggv Hard wick, Bernard V 67 118 Hard wick v . Wright 58 Hargrave v. Hargrave 165 Hargraves V. White 151 Harper, Tildealey v 139 Harris v. Gamble 19 , 139 Harris v. Harris 68 Harris v. Jenkins ... 157 Harris, Malcolm v. 198 Harris, Parsons V 107 Harris, Sheppard v. 126 Harrison V. Cornwall 88 Harrison V. Leutner 224 Hart, Colley v 68 Hart V. Montefiore 26 Hart Davies, Hill V 64 Hartley V. Owen 144 Harvey, Foster V 55,56 Hastie v. Hastie 85 Hawkesley v. Bradshaw 157 Hawkins Hill G. M. Co. v. Briscoe 11, 12 Hawkins, Riding V. 158 Haycock's Policy, Ec 53 Hayes, Sambrooke v 223 Hayward, v. East Loudon Water- works Co 63 Hayward V. Hayward 78 Hayward v. Stephens 45 Headon, Martin V 33 Heap V. Marris 157 Heath V. Crealrock 65 Heathcote, Stephens v 28 Heaver, Lowther v. 158 Hedley V. Bates 64 Hellyer v. Druitt 183 Henshaw V. Angell 194 Hentsch v. Dawbarn 109 Heppenstall Bros., Halliday V. ... 136 Heritage, Levi V. ... 146 Herman, M cQueen V 44 Hermann Loog V. Bean 65 Herrett v. Reynolds 146 Herts, &c., Waterworks Co., Blaker v 69 Hesson, Quinnv. ... 19 Hester V. H 229 Heston & Isleworth Local Board, Glossopv 64 Hetherington v. Longrigg 107 Hewetson, Robinson V 71 Hewitt, Be 43 Hewitt V. Nanson 55 H. V. H 67 Higgins, Doody v. 10 Higgins, Morgan V. 58 Higgins V. Shaw 71 Hil,iJe 226 FASE Hill V. Hart Davies 64 Hill V.King 191 Hills V. Springett 71 Hinde V. Mortou 163 Hindley V. Emery 30,31,32 Hingston, Pamell V. 10 Hinton, Sandeman v. ... .. 225 Hiorna V. Holton 64 Hipgrave v. Case 33, 158 Hixson, Jeanneret V 64 Hobson, Fritz V 30,31,33 Hobson V. Jones 58 Hodge, Willyams, v 126 Hodges V. Hodges 15 Hodson V. Moohi 18,19 Hoflfmann V. Postill 22 Holcombe V. Trotter 163 Holden, Garrod V 117 Holdsworth, Thorp V. ... 139,157 Holgate V. Shutt 58 Holland V. Dickson 64 Holland V. Worley 30,33 HoUowayv. Cheston 78 Holtom, Hiorns v 54 Home Counties, &o,, Co., Be ... 78 Hood V. Cnllen ... 79, 82 Hope V. Fox " 9 Hornsey, Greenwood v 33 Horsley v. Ramsay 3, 31 Houstoun V. Marquis of Sligo ... 137 Howard v. Chaffers 41 Howe V. Hunt 31 Howell V. Dawson 69 Howell V. Keightley 194 Howie, Callow V 28 Hudlestone, Gilbert v 7fl Hudson, Yorkshire By. Co. V. ... 78 Huggons v. Tweed 19,20 Hull and County Bank, iJe ... 80 Humberstone, Wynne v 26 Hunt, Howev 31 Hunter v. Hunter S3, 84, 85 Hurst V. Hurst 54 Hutchinson V. Glover 25 Hutton V. Sealey 56 Hyde V. Warden ... 66 Hyett, Goodhart V. 65 22 44 Imperial, &c., Assoc, v. Whitham Imperial Land Co. of Marseilles, Ea International Financial Society v. City of Moscow Gas Co. ... 81 Irish, Iri re 66 J. Jackson, Bailliev 45 Jackson V. Duke of Newcastle ... 33 XVIU. TABLE OF CASES. PAOE Jaokaon, Jenkins V. ... 68 Jackson, Norris V ... 31 Jackson, Trail v ... 81 Jackson v. Turaley 50,51 Jackson, Williams V. ... 70 Jacques, Be ... 81 James, Meyrick v 42 James V. James 55 Jeanneret v. Hixson .., 64 Jenkins, Harris v ... 157 Jenkins V. Jackson ... 68 Jennings v. Blunt 5 Jewesbury, Powell V. 15, 160 Johnstone V, Cox ... 88 Jones V. Chennell 85,86 Jones, Duckitt v ... 118 Jones, Hobson V ... 58 Jones, Phillips V ... 68 Joshua Stubbs, Ltd., lie... ... 69 Joyce, Cookie V ... 171 Judge of Lincolnshire C. Court, R. V ... 68 Justice V. Mersey, &o., Co. ... 85 K. Kean, Mornington v. ... 218 Kearney, Fraser v. .. 115 Kearney, Reid v ... 178 Kearsley v. Phillips ... 25 Keay, Talbot v ... 53 Keightley, Howell v. ... 194 Kelson v. Kelson ... 74 Kenah's Trusts, Ec ... 45 Kerrv. Stiles ... 140 Kershaw, Whittaker v. ... 115 Killing V. Killing ... 224 Kimber V. Eusworth ... 169 King, Hill v ... 191 King V. Sandeman ... ... 171 King, Rochdale Canal Co., V ... 25 King's Lynn Steamship Co., Brocklebank v. ... 127 Kirkham, Marriott v. ... 56 Kirkley v . Burton ... 118 Kisch, Directors, &o. v. ... ... 85 Knight, Be ... 42 Knight V. Knight ... 60 Knight, Salomons v. ... 64 Kuowles V, Roberts ... 156 Krehl V. Burrell ... 33 Krupp, Vavasseur v. ... 18 Kurtz V. Spence 68, 158 PAGK Laing, Shrapnel v. ... 20, 227 Lainson V. Lainson 190 Laird, Trustees of Birkenhead Docks V. 50 Lambev. Orton 194 Lancashire, &c. , Co., Schotsmans v. 31 Lancaster V. De Trafford 31 Langen V. Tate 44 Lane v. Gray 25 Lanhara V. Pirie 10 Laslett V. Cliffe 56 Latham, Blakey V. 220 Lauretta, The 88 Lavender, Girdlestone V 56 Layers, Anning V 56 Lawford, Samuda V. 31 Lawrance V. Lord Norreys ... 137 Lawrence, Evennett v 80 Lawson, Garlick V. 49 La wson, Morrisset v 40 Lawson, Sleight V 58 Lawson v. Vacuum Brake Co. ... 44 Lazarus v. Mozley 26 Ledyardv. BuU 136 Lee V. Angas 48 Leev. Willock 76 Leeds v. Lewis 74 Lees V. Fisher :. 55 Lees V. Lees 46 Lees V. Patterson 19 Legerton, Bright V. 28 Leigh V. Turner 195 Lenaghan V. Smith 52 Leutner, Harrison v 224 Lever, Eastwood v . ... 32, 33 Lever V. Goodwin 68 Levi V. Heritage 146 Levinstein, Badische Aiuline, &c,, V 136 Levitt V. Levitt 45 Lewers V. Earl of Shaftesbury ... 31 Lewis, Frewin v 64 Lewis, Leeds v 74 Lewis, Waynv 56 Lewis v. Nobbs 114 Leyland V. Leyland 170 Licensed Victuallers', &c., Co. v. Bingham .. 63 Lillis V. Davis 79 Limehouse Board of Works, Lon- don, &o., Co. V 229 Lion Fire Insurance Co. v. Neild 92, 179 Lady de la Pole V. Dick 83 Lady Laugdale v, Briggs 49 Lister and Co. v, Stubbs Liverpool Borough Bank, Eccles v. Liverpool, &c., Assoc, v. Smith ... LlaneUy R. Co., Morris v. Llewellyn, Wedderburne v. Lloyd V. Whittey L. &N.W.R. Co., Williamson v.... Lodge V. Prichard 68 224 64 47 224 56 157 TABLE OF CASES. PAOE Logan, Plummer v. 164 London, &c., Co., Be 47 London and Blackwall Railway Co. V. Cross 63, 67 London Celluloid Co., Willmottv. 85 London, Cheltenham, &o., Co. v. S.E.R. Co 85 London, &o., Docks, Griffiths v. ... 158 London, &o., Co. v. Dover 56, 59 London, &o., Co. v. Limehouse Board of Works 229 London, &o., Co., United, &o., Co. V 65 London and County Assurance Co., Ue 78 London, &c., R. Co., Birmingham, &c.. Land Co. \' 52 Longbottom V. Shaw 137 Longrigg, Hetherington v. ... 107 Lopes, Porter V 66 Lord V. Lord 188 Lord Methuen, Mildmay v. 46, 47 Lord Kensington, Rooke V. ,., 50 Lord Norreys, Lawranoe v. ... 137 Lord Penrhyn, Dawkins v. 129, 130 Lord Suffield V. Bond 52 Lowther v. Heaver 158 Lucey, Russell v 169 Luck, Preston V 65 Luff, Wills V 66 Lukes, Wright V 108 Lumsden V. Winter 142 Lush, Sharp V 172 Liitscher, Banque Fr. Egyt. v. ... 44 Lydney, &e., Co. V. Bird 127 Lyle v. Elwood 46 M. Macaulay, Gandy V. 189 Mackenzie v. Childers 67 Macpherson V. Sutherland ... 63 Macrae, Re 110 Magnay, Middleton v 31 Maitland, Beddell V 18 Maitland, O'Brien V 126 Makins v. Percy Ibotson and Sons 69 Malcolm V. Harris 198 Malcolm V. Montgomery 61 Malings, Moss V 136,158 Mallet, Palmer V '. 67 Maltby, Cross V 194 Manby, Boydell V 57 Manby, Union Bank of London v. 25 Manby, Webster V 228 Manchester, &o., Co. v. Brooks ... 18 Manchester, &c., Co. V. Slagg ... 78 Manchester, &c.. District Bank v. Parkinson 66 FASX Maucliester, &c., R. Co., Evans v. 52 Mander, Crowfoot V, 70 Mann, Martano v 115 Manning, Pnroell v. 194 Hansel, Webb v 80 Mapleson v. Masini 127 Marks v. Ogg 21 Marquis of Sligo, Houstoun V. ... 137 Marriott V. Kirkham 56 Marriott v. Marriott 156 Marris, Heap V 157 Marshall, Davies v. 222 Marshall, National, &c.. Bank v. 67 Martano V. Mann 115 Martin, Gt. Australian, &c., Co., v. 118 Martin v. Hadlow 59 Martin v. Headon 33 Martin v. Spicer 15,67 Masini, Mapleson v. 127 Mason V. Brentini 20 Mason v. Westoby 68 Massam, Thorley's, &o., Co. v. ... 64 Massey V. Allen 127,128 Matthews, Bauman V 33 May V. Newton 41,174 Maybery v. Brooking 169 Mayne v. Butter 46 Mayor, &c., of Bradford, Ferrandv. 52 Mayor of Bristol, Wedmort V. 31, 33 Mayor v. Collins ... 115 Mc Arthur V. Dudgeon ... 188 McCuUoch's costs. Be ... 228 McDonald v. Carington .. ... 19 McEnroe V. Brown 153, 228 McGregor, Ex pa/)-te ... 197 McGregor, Gow & Co., Jlogul Steamship Co. v. ... 65 McGowan V. Middleton ... ... 18 McLaughlin v, Moore 11, 114 McLean, Bidder v. ... 130 McQuade v. Herman ... 44 McRae, Be ...53,82 Mo Veagh v. Croall ... 25 Meacham v. Cooper ... 187 Meanock, Stott v.. ... 77 Mearsv. Best ... 56 Meaaon, Wigham v. ... 56 Mellersh, Coleman V. ... 58 Mellish V. Brooks ... 223 Mellor V. Porter ... 55 Mellor V. Sidebotham ... 108 Mentastl, Reinhardt V. ... ... 68 Mercantile Bank, Griffin v. ...30,34 Mersey, &c., Co., Justice v. ... 85 Merthyr Tydfil, A.-G. v. ... ... 47 Messer V. Boyle ... 55 Meyriok v. James ... 42 Michel V, Wilson ... 171 Middlesborough, &o.. Association, Trade, &c., Co. v. ... ... 67 XX. TABLE OF CASES. PAOE Middleton V. Greenwood 31 Middleton V. Magnay ^1 Middleton, MoGowan V i» Midland K. Co., Boggv 50 Midland R. Co., Case V. ... ... 47 Mid. KentK. Co. andS.E.R. Co., A.-G. V 64 Mifif, Haggitt V. 45 Milan Tram ways Co. , Ee l / Mildmay v. Lord Methuen 46, 47 Miller, Rolls V 67 Moohi, Hodsonv 18, 19 Mogul Steamship Co. v. McGregor, GowandCo 65 Moignard, Whitney V 157 Montefiore, Hart V. 26 Montgomery, Malcolm V 61 Montgomery, Thompson V. ... 68 Moon, Cooper V 46 Moore, Be 69 Moore, Bennett V 107 Moore V. Gamgee 53 Moore, McLaughlin V. ... 11,114 Morgan, .Sa; parte 53 Morgan V. Fuller 35 Morgan V. Higgins 58 Morley V. Finney 189 Momington V. Keane 218 Mornington, Wellesley v. ... 202 Morris V. Llanelly Ry. Co. ... 47 Morris, Rowsell V 223 Morris, Rubery V 218 Morrisset V. Lawson 40 Morse, Ward V 20 Mort, Liddell & Co., Parnell v. ... 136 Mortan, Dawkins v. ... 28, 78, 195 Morton, Hinde V 163 Moss V. Malings 136,158 Moss, Want V 4 Mosses, Warner V 44,226 Motly, Biokv 76 Mounsey V. Burnham 219 Moxhay, Campbell v 56 Moxham, TheM 44 Moxon, Burmester v 56 Mozley, Lazarus V 26 Myers V. Catterson 68 Mysore West G. Co., Be 44 N. Nadin V. Bassett 44 Nanson, Hewitt V. 55 National Bank of Australasia, Goodsellv 34,35,36 National, &o.. Bank v. Marshall 67 Naylor V. Farrer 19 Neal, Be 224 Neate, Taylor V „„ 69 PAGE Needham V. Needham 169 Neild, Lion Insurance Co v. 92, 179 Neilson, Betts v 30 Nelson V. Booth 58 Neptune, &c., Co., Pellas v. ... 18 New Brunswick, &c., Co., Tucker V 65 NewCallao, Be 81,82,83 Newen V. Wetten 58 Newfoundland K. Co., Government Newfoundland V 18 Newman V. Self e 55,56,126 Newson v. Pender 68 Newton, May V 41,174 Newton v. Newton 63 Nicols V. Pitman 65 Nicholson, Wickham V 55 Niemann v. Niemann 69 Nixon, TUlett V 66 Nobbs, Lewis V lU Norris v. Jackson 31 Northcote, Colman v 126 NorthLondonR. Co. v.G.N.R.Co. 63 North, &c.. Tramways, Steward v. 158 Norton v. Steinkopf 28 Norton v. White 163 Noyes V. Crawley 130 N.S.W. Shale and Oil Co., Fell v. 3, 4 Nunn, Byrdv 139 Nurse, Alexander V. 45 O. Oak well Collieries, Re O'Brien v. Maitland Ogden V. Battams Ogg, Marks V. Olley V. Fisher Onslow, Goode v Oppenheim, Wittmanv. ... Original, &c., Co. v. Gibb Orr Ewings' Trade Marks, Se Orton, Lambe V Owen, Cradock v Owen, Hartley V Oxford, &c., Co., Woodcock v. 126 58 21 130 225 65 18 85 191 195 144 224 P. Pad wick V. Scott Page, Williams V Pame v. Edwards Palmer V. Mallet Pares v. Clegg Paris, &o., Co., Spillerv Parker, Watkin v ... Parkinson, Manchester, &c., Dis- trict Bank v 66 .. 19 9,170 .. 55 .. 67 .. 61 .. 44 .. 117 TABLE OF CASES. XXI. Parkinson v. Hanbury Parnell V. Hingaton Parnell v. Mort, Liddell & Co. Parsons v. Harris Patman, Corsellis V. Patterson, Lees v Pawson, Senior V Payne, Esdaile V Peace & Waller, Re Pearce v. Watts Pearson, Brown V Pearson, Shelley v. Pease v. Fletcher Peel, Daubuz v Pellas V. Neptune, &c., Co. Pender, Newson v. Pennell v. Earl of Dysart. . . Peimy v. Slough Percy, &o. , Co. , iJc PAOE .. 117 .. 10 .. 136 .. 107 56 .. 119 .. 33 81, 87 .. 69 .. 131 .. 108 .. 64 .. 66 .. 169 .. 18 .. 68 50 .. 151 .. 127 Percy Ibotson & Sons, Makins v. 69 Perryman, Bonnard v. ... ... 64 Peruvian Guano Co., Compagnie, &c., V 25 Peruvian Guano Co., Dreyfus v. 30, 32 Petty V. Daniel 53 Phibbs, White V 176 Philips V. Jones ... ... ... 68 Philips, Kearsley V. 22 Philippa V. Philipps 157 Phillips V. Craigh 80,81 Phillips V. Gutteridge 56 Phcenix, Ec 86 Photographic Co., Pollard v. 63, 67 Pierce V. Hammond ... ... 195 Piggott V. Garraway 165 Pike V. F. Keene and Byne ... 120 Pirie, Lanham v 10 Pitcher, Farquharson V 224 Pitman, Nicols V 65 Plomley V. Shepherd 91 Plummerv. Logan 164 P. &0. &c.,Co., Agerv 67 Pollard V. Photographic Co. ...63, 67 Poole V. Gordon 221 Poole, Walker V 147 Pooley's Trustee, &c 87 Pope, iJc 66 Porter V. Lopes 66 Porter, Mellor V 55 Postal, Hoffmann V 22 Pountain, in re 67 Powell V. Davies 93 Powell V. Jewesbury ... 15,160 Powell, Rogers v 189 Praetorius, Anlaby V 53 Prentice v. Prentice 10 Preston v. Luck 65 Price V. Berrington 223 Price V. Rickards 146 Price, Robert V 55 Prichard, Lodge v. ... 58 Prieater, Tuck V ... 67 Prince V. Cooper ... 59 Prior, Green v ... 65 Pritchard, Durell v. ... 31 Proctor V. Bay ley 31, 68 Prytherch, Be 56,68 Purcell V. Manning ... 194 Pumell V. G.W.R. Co. ... 82,84 Pye, Startin v 9, 114 Q. Quartz Hill, &c., Co., Re . Quartz, &c., Co. v. Beall . Quin V. Hesaon R. . 42 63,64 .. 19 Ralph v. Carrick ... ... ... 88 Ramsay, Horsley v. 3,31 Ramsdaie, Beckett V 189 Ranger, Sidney V 197 Rattray V. Blanchard 178 Rawlings, Bartholomew V. ... 19 Raymond v. Tapson 48 Reade, Rumsey v. ... 107 B-ed^Aish, Ex parte 85 Redgrave, Truman and Co. ... 66 Reeves, Cator V 55 Beid V. Kearney ... ... ... 178 Reinhardt V. Mentasti 68 Republic of Costa Rica v. Erlanger 128 Republic of Peru v. Dreyfua, &c., and Co.... ... ... ... 65 Reynal, Fowler V 41 Reynolds v. Coleman 53 Reynolds, Herrett V 146 Reynolds, See V 9,114 Ricardo, Troup v 118 Rich, Burohv 118 Richards, Re 191 Richardson, Smith V 157 Richardson v. Ward 195 Rickards, Price V 146 Ricketta, Griffith V 162 Biding V. Hawkins 158 Rigg, Wadham V 78 R. V. Judge of Lincolnshire C. Court 68 Robert V. Price 55 Roberts V. Evans 9 Roberts, Knowles V. 156 Roberts, Schultz V. 40 Roberts, Stephen V. 77 Roberts, Whitbread v. .» 56, 57 Robinson, Be 59 Robinson v. Drakes ... ... 88 TABLE OF CASES. Robinson V. Hewetson PA8E ... 71 Eobinson, Smith v. ... 55 Robson V. Whittingham ... ... 34 Rochdale Canal Co. v. King ... 25 Rodd, Broughton V. ... 91 Rodwell, Watson v. 156, 1S7 Rogers V. Challis ... 31 Rogers v. Powell ... 189 Rogerson, Anglo-Danubian Co V. 33 Rolls V. Miller ... 67 Rooke V. Lord Kensington 50,51 Ross V. Buxton ... 66 Rowley v. Burgess ... 60 Rowsell V. Morris ... 223 Royle, Challender v. 65, 68 Ru bery v. Morris ... 218 Rumbold v. Forteath ... 26 Rumley v. Winn ... 141 Rumsey V. Reade ... 107 Rundle V. Short ... 36 Russell V. Lucey ... 169 Rutter V. Tregent ... 139 Rylands, Davenport v. 31,33 s. Sachs V. Beaumont ... 64,175 Saoker, Boyle V 53 Salmon, Andrews V. 67 Salomons v. Knight 64 Sambrooke v. Hayes 223 Samuda V. Lawford 31 Sandeman V. Hinton 225 Sandeman, King v. 171 Sanders, Carter V 9 Sanders V. Sanders 86 Saner V. Bilton 20 Saner V. Deaven 163 Saxby V. Easterbrooke 64 Sayers V. CoUyer 30,67 Schembri, Somerville v 68 Schjott V. Schjott 1] Schminoke, Shore V 67 Schneider V. Shrubsole ] 134 Schotsmans v. Lancashire, &o., Co. 31 Schultz V. Roberts 40 Scott, Padwiok V. ... ... 19 Scriven, Be ", 46 Sealey, Hutton v 56 See y. Reynolds .,9,114 Seebohm, Warne V. 67 Selfe V. Dalgety &,Co. ... ... 224 Selfe, Newman V 55,56,126 Sempillv. Campbell I77 Senior v. Pa wson 33 S, E. E. Co., London, Cheltenham, &o., Co. V gg Sevin, Green V ..18.19 Seymour, Bierdennann V '. 223 PA8B Sharp V. Lush 172 Sharp V. Wright 220 Shaw V. Earl of Jersey 64 Shaw, Higgins v 71 Shaw, Longbottom v 137 ShefiHeld, Curtis V 81 Shelley V. Pearson 64 Sheppard v. Gilmore 66 Sheppard v. Harris 126 Shepherd, Plomley V 91 Shore V. Schmincke 67 Short, Rundle V 16 Shrapnel V. Laing 20,227 Shublsole, Schneider V 34 Shutt, Holgate V 58 Sidebotham, Mellor V 108 Sidney V. Ranger .. 197 Sime, Cairdv 67 Simmons v. Storer 226 Sir Charles Napier, The 19 Skidmore, Be 219 Skipper, Gamham v 148 Slagg, Manchester, &c., Co. v. ... 78 Sleight V. Lawson 58 Slough, Penny V 151 Smith V. Armitage 148 Smith V. Armstrong 194 Smith, Amison V 87 Smith, A.S.N. Co. v 158 Smith V. Baker 53 Smith, Bear V 41 Smith, Birmingham Estates Co. v. 19 Smith V. Buchan 107, 140 Smith, Cooke V 147 Smith, Cropper V 158 Smith v. Davies 107,140 Smith V. Etches 9 Smith, Gilbert V 107,108 Smith, Lenaghan V. 52 Smith V. Richardson 157 Smith, Liverpool, &c., Assoc, v.... 64 Smith V. Robinson 56 Smyth, Cooper V 65 Soames v. Edge 31 Socidt^ Anonyme, &c., v. Tilgh- man's, &c., Co. 64 Sooi6t6 6(5n&ale d' Electricity, Werderman v 130 Somerville v. Schembri 68 Southey, Stacey T 60 Spalding, Cowan and Co. v. ... 158 Spanish 6. A. Corp. v. Spanish Corp 66 Spedding v. Ktzpatrick 157 Spence, Kurtz V 68,158 Spicer V. Martin 15,67 Spiller v. Paris, &c., Co 44 Springett, Hills V 71 Stacey v. Southey 60 Stafford, Davenport v 165 TABLE OF CASES. Stainton v. Carron Co. Stanhope, Deeks v. Stannard v. S. Giles Startiu v. Pye Stather, Anderson v. Steel, A.J.S. Bank v. Steel V.Cobb Steinkopf, Norton v. Stephen V. Roberts Stephens, Dyke V Stephens, Hayward V. Stephens v. Heathcote Steuart v. Gladstone Steward v. North, &e.. Tramways S. Giles, Stannard V. Stiles, Kerr v Stilwell, Gover V Stokes V. City Offices Co.... Stokes V. Grant Stockton, &c., Co., Re Stockton Coal Co. v. Fletcher Stooke V. Taylor Storer, Simmonds V. Stott V. Meanock Street v. Union Bank of Spain Strickland v. Strickland . . . Stubbs, Lister and Co. v. . . . Stumm V. Dixon Stumore, Aste V Sturge V. Dimsdale Sturges, Duffield v. Sturl, Wormsley v. Stutely, Collins v Sutherland, Macpherson v. Sutton V. Sutton Swaine v. G. N. Ry. Co. ., . Swallow V. Binns Swindell v. Birmingham Syndicate Swinden, &o., Co., Wright v. T. Talbott, iJc Talbot V. Keay Tapson, Raymond v. Tarbuck V. Woodcock Tasmania, The ... Tate, Langen V Taylor V. Barton Taylor V. Blakelock Taylor, Burgoine v. Taylor v. Eokersley Taylor V. Grange Taylor V. Neate Taylor, Stooke v Taylor, Webster v. Tennant, City of London Brewery Co.,v Tennant V. Trenchard 9, PAGE 58 71 64 114 126 147 126 28 77 115 45 28 44 158 64 140 229 47 157 83 91 18 226 77 68 219 68 220 15 227, 229 27 188 33 63 4 31 10 81 146 190 53 48 220 85 44 99 137 171 67 86 69 18 176 32 56 Terry, Blunt v. Tibbut, Briant v. ... Tildesley V. Harper Tilghman's, &c., Co., Soci6t6 Anonyme, &c. v Tillett V. Charing Cross, &c., Co. Tillett V. Nixon Thames Ironworks Co. , Cory v, Thomas v. Bernard Thomas v. Elson Thomas v. Thomas Thomas v. Williams Thompson, Frazer v. Thompson v. Montgomery Thompson v. Woodfine Thorley's, &c., Co. v. Massam ... Thorp V. Holdsworth ... 139 Threlf all, Webster v. , Thwaite, Dean V Tod-Heatley V. Beuham Toke V. Andrews Tomlinson, Ballard v Tonkin Mining Co., Griffin V. ... Trade, &c., Co. v. Middles- borough, &c., Assoc. Trail v. Jackson ... Tregent, Rutterv. ... Trenchord, Tennant v. Trotter, Holoombe v. Troup V. Bicardo ... Trowbridge Waterworks Co., Bush FASE 34,38 . 194 . 139 &c.,Co, Truman and Co. v. Redgrave Trustees of Birkenhead Docks v. Laird ... Try, A.-G. v. Tuck V. Priester ... Tuckerv. New Brunswick TuUochv. TuUoch... Turner, Bacon v. ... Turner, Bell v. Turner, Leigh v. ... Turner, v. Turner ... Turnley, Jackson v. Turquand v. Wilson Turton v. Turton ... Tussaud V. Tussaud Tweed, Huggons v. Twycross v. Grant, . . Tynte, Ford v. U. 64 31 66 31, 33 . 28 . 78 . 126 63,64 . 220 . 68 . 18 . 64 157 118 58 67 18 68 31 67 81 139 56 163 118 131 66 50 13 67 65 59 .. 46 .. 59 .. 195 .. 194 ..50,51 .. 107 .. 68 ... 68 ..19,20 .. 144 .. 47 Underwood Estates Acts, Ee ... 90 Dnderwood's Will, Be 91 Underwood's Will, Felton's Peti- tion 192 Union Bank of London v. Manby 25 Union Bank of Spain, Street v. ... 68 XXIV. TABLE OF CASES. Union Electrical, &o., Co., v. Electrical Storage Co. ... 136 United, &c. , Co. v. London, &o. , Co. 65 United Telephone Co., Barnes \. 68 United Telephone Co. v. Donohoe 108 Upmann v. Forester 65 Upton V. Brown 78 U.S.A. V. Wagner 22 Vacuum Brake Co. , Lawson v. ... 44 Vanderzee, Wolf v. 58 Vavasseur V. Krupp 18 Venour's Settled Estates, Ef ... 4 Vernon v. Hallam 67 Vestry of Paddington, Collins v. 81, 82 Vickery, Bucknell V 91 Vowles V. Young 146 W. Wadham V. Eigg Wagner, U.S.A. v. Wake, Carter v Wakelee V. Davis Walker, Armour V. Walker v. Poole Wall, Burt V Wallis, Anderson v. Wallis V. Bastard Wallis, Hampden v. Walmseley, Ellis v. Walsh V. Wason Want v. Moss Warburg, JUx 2>arte Ward, Abram v Ward V. Morse Ward, Richardson v. Warde v. Dickson Warden, Hyde v Ware V. Watson Warne v. Seebohm Warner V. Mosses Wason, Walsh v Waterloo Mills Co., Driffield, Co. V Waterman V. Ayres Waters, Re Watkin v. Parker Watkins, Baylis v. Watkins, Bush v AVatson V. Rodwell Watson, Ware V Watts, iJe Watts, Pearoe v Watts V. Watts Wayn v. Lewis ... ,., 44, &c.. 78 22 55 130 44 147 82 162 74 53 224 202 4 83 222 20 195 28 66 194 67 226 202 68 68 ... 191 ... 117 ... 195 ... 41 156, 157 ... 194 ... 78 ... 131 ... 71 ... 56 Webbv. Byng PAGE ... 50 Webb V. Gray ... 19 Webb V. Mansell 80 Webster V. Manby ... 228 Webster V. Taylor ... 176 Webster V. Threlfall ... 118 Wedderbume v. Llewellyn ... 224 Wedmore v. The Mayor of Bristol 31, 33 Wellesley v. Mornington . . . ... 202 Wells, iJe ... 68 Wells, Bairdv ... 67 Werderman v. Soci6t6 G^nerale d' Electricity ... 130 West .Jewell, &c., Co., Be ... 82 West, De Mestre v. ... 91 Westoby, Mason v. ... 68 Weston's Case ... 87 •Wettern, Newen v. ... 58 Wharton Saltworks Co., Golding V. ... 157 Whately, Wilson V. ... 71 Wheeltou, Wightman v. ... ... 48 Whitbread v. Roberts 56,57 White v.Boby ... 31 White, Bustros v ... 25 White, Hargraves v. ... 151 White, Norton V ... 163 White V. Phibbs ... 176 Whitehouse and Co., Be ... ... 18 Whitham, Imperial Assoc, &c , V. 22 Whiting V. Bassett ... 46 Whittey, Lloyd V ... 56 Whitmore, Bristow v. ... 50 Whitmore, George v. ... 34 Whitney v. Moignard ... 157 Whittaker, Darley V. ... 31 Whittaker v. Kershaw . . . ... 115 Whittaker V. Whittaker ... ... 189 Whittingham, Robson v. . . . ... 34 Whittinghara, Cooper v. ... ...63,65 Wickham, ife ... 224 Wickham v. Nicholson . . . ... 55 Wieland, Barnard V. 107, 140 Wigham v. Measor ... 56 Wightman v. Wheelton . . . ... 48 Wilby, Cooke V ... 45 Williams, Birch v.... ... 171 Williams v. De BoinviUe ... .. 53 Williams, Dixon v. ... 79 Williams, Ewartv ... 58 Williams v. Guest ... 39 Williams v. Jackson ... 70 Williams v. Page ...9,170 Williams, Thomas v. ...63.64 Williamson v. L. and N.W.R. Co. 157 Willmott V. London Celluloid Co. 85 WiUock, Lee V ... 76 Wills V. Luff ... 66 Willyams V. Hodge ... 126 Wilson V. Broughton ... 223 TABLE OF CASES. Wilson V. Church... Wilson, Ferguson, v Wilson, Michel V Wilson, Turquand v. Wilson V. Whateley Wilson V. Wilson Winn, Rumley V Winterfield v. Bradnum ... Winter, Lumsdeii v. Witman V. Oppenheim Wolf V. Vanderzee Wood, Ashton v Wood V. Durham ... Woodcock V. Oxford, &c,, Co. Woodcock, Tarbuck v. ... Woodfine, Thompson V.' ... Woodford V. Brooking WooUey v. Colman Worley, Holland v. Wormsleyv. Sturt Wrench v. Wynne ... Wright, Bourke V 1>A»E .10, 22 Wright V. Clifford PASB . 171 . 31 Wright, Hard wick V . 58 . 171 Wright V. Lukes . 108 .. 107 Wright, Sharp v . 220 .. 71 Wright V. Swindon, &c., Co. . 146 .. 195 Wy Id, Cotton V 30, 31,33 .. 141 Wynne v. Humberston . 26 18, 127 Wynne, Wrench v. . 202 .. 142 .. 65 Wycherley V. Barnard . 194 .. 58 .. 194 .. 158 Y. .. 224 .. 220 Yearsley V. Yearsley . 229 .. 18. ,Yelts V. Biles "T. . 224 .. 56 York, &c., Co. V. Artley ... . 55 .. .220 York, &c., Ry. Co. v. Hudson . . 78 ..30,33 Youl, Be . 71 .. 188 Young, Femie v. ... 34, 35, 37 38,80 ... 202 Young, Vowles V . 146 16, 153 Youngs, Be .. 224 THE PKACTICE IN EQUITY. 44 VICT., "No. XVIII. An Act to amend the Law respecting the Procedure and Practice of the Supreme Court in its Equitable Juris- diction. [Assented to 12 July, 1880.] Be it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled and by the authority of the same as follows : — Jurisdiction of the Judge in Equity. 1. It shall be lawful for the Governor with the advice of Appointment and jurisdic- the Executive Council to appoint one of the Judges of the tion of Judge. Supreme Court to be the Primary Judge in Equity herein- after called the Judge and as such Judge to exercise the jurisdiction of the said Court in Equity And the Supreme Court shall be holden by the Judge so appointed for the determination of all proceedings in Equity and the disposal of motions and matters in relation thereto respectively and every decree or order of the Judge made in Equity (unless appealed from in manner hereinafter provided) shall be as valid and binding as if made by the Full Court. Judge's abaence or illness. EQUITY ACT, 1880. 2. In case of the absence from Sydney or illness of the Judge so appointed it shall be lawful for any of the other Judges (during such absence or illness) to sit alone and ■ determine all such matters as aforesaid in like manner as the Judge so being ill or absent might have done but subject nevertheless to the like appeal. By 50 Vict., No. 36 notwithstanding anything contained in the Equity Act of 1880 any Judge of the Supreme Court may at the request of the Primary Judge in Equity or of the Chief Justice sit alone and hear and determine all causes or matters depending in Equity and shall have while so acting co-ordinate jurisdiction with and all the powers of the Primary Judge subject , however to the same right of appeal as now exists from the decision of the Primary Judge. The word "Court." 3. Wherever in this Act the word " Court " is used it shall be taken to mean the Court holden before the Judge so appointed as aforesaid or the Judge acting under the last preceding section in his stead unless the context shall require a different construction. Power to decide legal titles, &c. 4. In any suit or proceeding in Equity wherein it may be necessary to establish any legal title or right as a founda- tion for relief the Court shall itself determine such title or right without requiring the parties to proceed at law to establish the same and whenever any question now cognizable only at law shall arise in the course of any proceeding before him the Judge shall have cognizance thereof as completely as if the same had arisen in a Court of Law and shall exercise in relation to such title right or question all the powers of the Supreme Court in its Common Law Jurisdiction and no suit in Equity shall be open to objection on the ground that the remedy or appro- priate remedy is in some other jurisdiction. EQUITY ACT, 1880. This section is to a great extent compounded of the following English enactments — (1) 15 and 16 Vict., c. 86, s. 62 : "in cases where, according to the present practice of the Court of Chancery, such Court declines to grant equitable relief until the legal right or title of the party or parties seeking such relief shall have been established in a proceeding at law, the said Court may itself determine such title or right without requiring the parties to proceed at law to establish the same ; " (2) 25 and 26 Vict., c. 42, s. 1 : " in all cases in which any relief or remedy within the juris- diction of the said Courts of Chancery [i.e., the High Court of Chancery and the Court of Chancery of the County Palatine of Lancaster] respectively is or shall be sought in any cause or matter instituted or pending in either of the said Courts, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, every question of law or fact cognizable in a Court of Common Law, on the determination of which the title to such relief or remedy depends, shall be determined by or before the same Court." In the former edition of this work the difficulties of this section, which had not then been judicially interpreted, were discussed at some length, and the necessity of limiting the generality of its lan- guage was pointed out. Such limitation has since been imposed by authority. " I think that s. 4 must be read in connection with s. 32. The latter section only gives the Court a Hmited power to grant damages. If this Court, under s. 4, had power to entertain suits in respect of breaches of contract in the same way as Courts of Common Law, it would have been unnecessary to have conferred the powers under s. 32. But as those powers are expressly given, and only to a limited extent, I think the Court's jurisdiction as to damages must be measured by the limits under s. 32, and not by the plenary powers under s. 4. ... If the plaintiff has an equitable right at the time of filing his statement of claim, the Court will entertain the suit. Where the law provides an adequate remedy, the Court of Equity ought not to interfere ; but where there is no such remedy, and the plaintiff is entitled to equitable relief, the measure of which is damages, this Court will itself ascertain those damages" (per Owen, C.J. Eq., Horsley v. Ramsay, 10 N.8.W.R. Eq. 45, 46). Accordingly, a suit for damages for breach of a guarantee given by partners, in which it was desired to proceed not only against the surviving partners, but also 4 EQUITY ACT, 1880. against the executors of a deceased partner, was entertained because the estate of the deceased partner was liable only in equity {S.O.) ; secus, where the plaintiff could recover damages at law (Fell v. KS.W. Shale & Oil do., ibid. 255-263). Again, " if this were merely a cause of action at law, I should hold that it could not be tried before me sitting as Primary Judge. To enable me to deal with questions of law it is not enough to allege an untenable equity in the statement of claim. Tf that were so, any action at law could be brought into equity by alleging some equity which was wholly untenable, but which was alleged only to givea colourable pretext for bringing the case before the Judge in Equity, instead of before a jury at law " (per Owen, C..T. Eq., Wcmt V. Moss, 12 N.S.W.R. Eq.). " Section 4 does not make this Court a Court of Law. The Primary Judge sits in this Court to exercise the jurisdiction of the Supreme Court in Equity, and it is only for that purpose that he can sit here; but under s. 4 his powers in any suit or proceeding in Equity are extended so as to enable him to deal incidentally with matters arising in an Equity suit which, but for that section, must have been dealt with by the Common Law Courts" (^per eundem, Cameron v. Cameron, 12 N.S.W.R. Eq.). Jud^es""^ 5- In any cause or matter the Judge may sit with the assisting. assistance of any two other Judges of the Supreme Court. Provided always that in every such case where three Judges sit the decision of the majority shall be taken to be that of the Full Court. This section enables the Judge, when called upon to decide lecal points, to invite the assistance of a Judge or Judges who may perhaps be more conversant with such matters. The first part of the section, if it stood alone, would seem to preclude the Primary Judge from calling in one assistant Judge only ; but the proviso clearly contemplates that one or two assistant Judges may be invited at the Primary Judge's option, and with this the marginal note agrees.* * As to the authority of marginal notes to Acts of Parliament, see Claydon v. Orem 3 O.P. 611 ; re Venom's S.E., 2 CD. 526 (but the dictum in this case was subsequently corrected in Sutton v. Sutton, 22 CD. 613) ; A,0. v. O.H.Jt, Co., 11 CD. 465. EQUITY ACT, 1880. Statement of Claim. O. After the commencement of this Act all persons seeking Form of equitable relief shall instead of proceeding by bill of com- pleading, plaint file in the office of the Master in Equity a statement of his case to be termed the statement of claim which shall contain as concisely as may be a narrative of the material facts and circumstances on which the plaintiiF relies but not the evidence by which they are to be proved such narrative being divided into paragraphs numbered consecutively and each paragraph containing as nearly as may be a separate and distinct statement or allegation and shall pray specifi- cally for the relief which the plaintiff may consider himself entitled to and also for general relief. See R. 151, with the notes. Where an injunction was obtained on' a Court holiday, the statement of claim and affidavits, which could not then be filed, were ordered to be filed as on the day on which the injunction was granted (Jennings v. Blunt, 4 N.S.W. W.N. 128). 7. It shall not be competent to any defendant to take any Rules as to objection for want of parties in any case to which the rules next hereinafter set forth extend and such rules shall be taken as part of the law and practice of the Court and any law or practice inconsistent therewith is hereby annulled. Bide 1. Any legatee devisee or next of kin may with- out serving the remaining legatees devisees or next of kin have a decree for the administration of the real and personal estate of a deceased person. Rule 2. Any one of several cestui que trust under any deed or instrument may without serving any other of such cestui que trust have a decree for the execution of the trusts of the deed or instrument. EQUITY ACT, 1880. Rule 3. In .all cases of suits for the protfection of property pending litigation and in all cases in the nature of waste one person may sue on behalf of himself and of all persons having the same interest. Rule 4. Any executor administrator or trustee may obtain a decree against any one legatee next of kin or cestui que trust for the adniihistration of the estate or the execution of the trusts. Rule 5. In all the above cases the Court if it shall see fit may require any other person or persons to be made a party or parties to the suit and may if it shall see fit give the conduct of the suit to such person as it may deem proper and may make such order in any particular case as it may deem just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters ' in question. Rule 6. In all the above cases the persons who according to the present practice of the Court would be necessary parties to the suit shall be served with notice of the decree and after such notice they shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit and they may by an order of course have liberty to attend the proceedings under the decree and any party so served may within such time as shall in that behalf be prescribed by the general order of the Supreme Court apply to the Court to add to the decree. See RE. 181-183. EQUITY ACT, 1880. 7 Ruh 7. In all suits concerning real or personal estate which is vested in trustees under a will settlement or otherwise such trustees . shall represent the persons beneficially interested under the trust in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent. the persons beneficially interested in such personal estate and in such cases it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit but the Court may upon consideration of the matter on the hearing if it shall so think fit order such persons or any of them to be made parties. This section is taken from the 42nd section of the 15 & 16 Vict., c. 86. Eule 1 supra is condensed from rr. 1, 2, 3, of the English enactment; accordingly rr. 2, 3, 4, 5, 6, 7, correspond respectively with the English rr. 4, 5, 6, 7, 8, 9. See on these rr. Walker and Elgood's " Administration Actions." 8. If in any suit or proceeding in Equity it shall appear Absence of to the Court that any deceased person who was interested in presentatives. the matters in question has no legal personal representative it shall be lawful for the Court either to proceed without any person representing the estate of such deceased person or to appoint some person to represent such estate for the purposes of the suit or proceeding on such notice (if any) as the Court shall think fit either specially or generally by public advertisement and every order made in refereUce to the matter and every order consequent thereon shall bind the estate of such deceased person in the same manner as if there had been a duly constituted legal personal represen- tative of such deceased person and such representative had been a party to the suit or proceeding and had appeared 8 EQUITY ACT, 1880. and submitted his rights and interests to the protection of the Court. On this section (which corresponds with the 44th section of the 15 & 16 Vict., c. 86) see Daniell's Oh. Pr., 5th ed., p. 181 ; Walker's "Executors and Administrators," 2nd ed., p. 84. MisjoMer of Q. No suit shall be dismissed by reason only of the mis- joinder of persons as plaintiiFs but wherever it shall appear to the Court that notwithstanding the conflict of interest in the co-plaintiffs or the want of interest in some of the plaintiffs or the existence of some ground of defence affecting some or one of the plaintiffs the plaintiffs or some or one of them are or is entitled to relief the Court may grant such relief and modify its decree according to the special circum- stances and for that purpose may direct such amendments if any as may be necessary and at the hearing before such amendments are made may treat any one or more of the plaintiffs as if he or they was or were a defendant or defen- dants in the suit and the other plaintiff or plaintiffs was or were the only plaintiff or plaintiffs on the record and where there is a misjoinder of plaintiffs and the plaintiff having an interest has died leaving a plaintiff on the record without an interest the Court may at the hearing order the cause to stand revived as may appear just and proceed to the decision of the cause if it shall see iit and may give such directions as to costs or otherwise as to the Court shall seem meet. This section is taken from s. 49 of 15 & 16 Vict., o. 86. The language of this section is explicit, and the new doctrine is not left to the discretion of the Court; it is imperative on the Court to follow it, and, if it applies to cases where the parties are named on the record, it applies equally where a plaintiff sues on behalf of himself and all others j accordingly, on a bill by one member of a company on behalf of himself and all others except the defendants, praying an account of the receipts and payments of the defendants on behalf of the company and payment of what EQUITY ACT, 1880. should be found due to the plaintiff, where it appeared that there were circumstances which made the interest of some of the persons whom the plaintiff purported to represent different from his, the Court held that the case was within the section, and that the Court could treat the absent plaintiffs as defendants, and a decree for an account was made, and liberty given to certain shareholders to attend the proceedings under the decree {Clements v. Bowes, 1 Dr. 684, 694 ; see per Romilly, M.R., Williams v. Page, 24 Beav. 669 ; and Hallows v. Fernie, 3 Ch. at p. 471). The fact that the plaintiff is the representative of a person who could not have sued, as well as of a person who could, is, under this section, no objection to a suit {Garter v. Sanders, 2 Dr. 248). As to husband and wife co-plaintiffs, see Hope v. Fox, 1 J. & H. 456 ; Smith v. Etches, 1 H. & M. 558 ; Eeardmore v. Gregory, 2 H. & M. 491 ; Roberts v. Evans, 7 CD. 830; Startin v. Pye, U N.S.W.R. Eq. 191 ; See v. Reynolds, ibid. 219. It is said that the bill is open to objection (once said Turner, L.J.) on the ground of misjoinder, some of the plaintiffs having interests adverse to those of others of them. But for what purpose was the Chancery Amendment Act passed? Was not one of its purposes to enable the Court to deal with cases according to justice, notwithstanding any formal objections on the ground of multifariousness? {Evans v. Coventry, 5 De G. M. & 6. 918). 1 0. It shall be lawful for the Court to adjudicate on Absence ot questions arising between parties notwithstanding that they interested, may be some only of the parties interested in the property respecting which the question may have arisen or that the property is comprised with other property in the same instrument without making the other parties interested in the property or interested under the same instrument parties to the suit and without requiring the whole trusts and purposes of the instruments to be executed under the direction of the Court and without taking the accounts of the trustees or other accounting parties or ascertaining the particulars or amount of the property touching which the question may have arisen Provided always that if the 10 EQUITY ACT, 1880. Court shall be of opinion that the application is fraudulent or collusive or for some other reason ought not to be enter- tained it may refuse to make the order prayed. This section corresponds with the 51st section of the 15 & 16 Vict., c. 86. Under it the Court can direct the administration of one or more of several specific trusts created by the same instrument, witliout directing the performance of the whole of the trusts (Parnell v. Hingston, 3 Sm. & G. 337), and can make a decree for the purpose of carrying into effect an arrangement as to a part of the estate of a testator, without administering the estate or executing the trusts of the will generally {Prentice v. Prentice, 10 Ha. App. xxii.). But it does not enable the Court to decree foreclosure or sale in the absence of a person entitled to a share in the equity of redemption {Gaddick v. Cook, 32 Beav. 70) ; and it only applies in cases where there are before the Court some of the parties interested in every point of view, and so it is inap- plicable {e.g.) where, the question being between surviving children and the representatives of deceased children, the latter class are unrepresented {Swallow v. Binns, 9 Ha. App. xlvii.). The section applies to special cases {Re Brown, 29 Beav. 401). A party will not be allowed under this section to strike the names of some of the defendants, who are out of the jurisdiction, out of the record, and proceed without them {Lanham v. Pirie, 2 Jur. KS. 1201). The section does not render the decision of the Court binding on the absent parties {Doody v. Higgins, 9 Ha. App. xxxii.). In Wilson v. Church, 9 CD. 552, in an interlocutory application, with which some of the parties to the action who had no interest in such application wei-e not served, an order nisi was made to be binding on the absent parties three days after service, unless they showed cause against it ; see also Commissioners, dkc, v. Gellatly, 3 CD. 610. Defendantnot \\. It shall not be necessary that every defendant to the interested as to all the statement of claim shall be interested as to all the relief thereby prayed for but the Court may make such order EQUITY ACT, 1880. 11 as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in such suit in which he may have no interest. This section is borrowed from 0. XVI., r. 4 (1875), r. 5 (1883). Under it a statement of claim is not open to demurrer on the ground that the demurring defendant is not interested in all the questions raised {Gox v. Barker, 3 CD. 359). In such a case it is competent to the Court to direct that those questions in which alone a particular defendant is interested be tried first (see "per James, L.J., S.O. 371). 12. Before the name of any person shall be used in any As to next suit as next friend of any infant married woman or other , ' party or as relator in any information such person shall sign a written authority to the solicitor for that purpose and such authority shall be filed with the statement of claim. This section takes security that a person's name shall not be used as next friend without his consent, for a statement of claim is not to be filed unless such person's written consent be filed there, with. But it is further necessary that a person shall not lend his name as next friend without the authority of the person for whom he purports to act; and if, when challenged to show such his authority, he does not show any, the suit will be dismissed with costs to be paid by his solicitor {Sclyott v. Schjott, 19 CD. 94). As to an inquiry whether a suit is for the benefit of infant plaintifis, see McLaiighlin v. Moore, 5 N.S.W.R. Eq. HI. Apart from this section, a defendant can call on the plaintifi''s solicitor on the record to produce the authority on which he acts {Hwwkins Hill G. M. Co. v. Briscoe, 8 N.S.W.R. Bq. 123), where a solicitor instituted a suit and obtained an ex pa/rte injunction on behalf of the company against the defendants proceeding with an action at law; on the motion to continue the injunction, the defendants took the objection that the solicitor had no authority to institute the suit; Sir W. Manning, P. J., 12 EQUITY ACT, 1880. overruled the objection, but, on appeal, it was held that the defendants had a right to call on the solicitor to produce the authority, and that as he had failed ,to do so, the injunction must be dissolved and the suit dismissed with costs as between solicitor and client, to be paid by the solicitor. A motion in plaintiff's name for leave to appeal to the Privy Council was also refused on the same ground (S.G., 4 N.S.W. W.N. 132). Service of Statement of Claim. Service of 13- No writ of subpoena or other process to appear to and statement of . claim. answer any statement of claim shall be required but the defendant shall be served with a written copy of such statement of claim according to the practice now in force respecting the service of bills of complaint together with an endorsement thereon in the form or to the eifect set out in the first Schedule to this Act with such variations as circumstances may require stamped with the proper stamp by one of the Clerks of the Supreme Court. See R.-65 and notes. Effect of filing 14!. The filing of a statement of claim shall have the same claim. effect as the filing of a bill of complaint now has and the service upon the defendant of a written copy of such state- ment of claim shall have the same effect as the service of a bill of complaint now has. Copies of Statement of Claim,. Delivering 1 5- The plaintiff in any suit in Equity instituted after the stementof Commencement of this Act shall deliver to the defendant <= aim. ^j, j^jg solicitor upon application for the same such a number EQUITY ACT, 1880. 13 of copies of the statement of claim as he shall require upon being paid for the same at such rate as shall be prescribed by any general rule. AmendTuent of Statement of Claim. 1 6- Upon the amendment of any statement of claim the Proceedings provisions hereinbefore contained with respect to filing and ment. serving and delivering copies thereof shall so far as may be extend to the statement of claim as amended Provided that where according to the present practice of the Court an amendment of a bill may be made without a new engross- ment thereof or under such other circumstances as shall be prescribed by any general rule a statement of claim may be amended by written alterations therein as filed. By s. 82 " statement of claim " includes " information." An amended information must be signed by the Attorney-General, {A.-G. V. Try, 7 N.S.W. W.N. 72.) As to amendment, see RR. 151-159. Decree in Cases not Disputed. 1 7. If the defendant does not dispute that the plaintifi" is Proceedings entitled to the relief prayed by his statement of claim he may dant does not appear either personally or by counsel or solicitor before t^soldAm^^ the Judge sitting in Chambers as hereinafter provided at the time fixed by the endorsement on the statement of claim and may then or at a future day to be appointed by the Judge submit to a decree or order as prayed or with such modification and variation as the Judge may direct and for that purpose the statements of fact in the statement of claim 14 EQUITY ACT, 1880. shall unless contradicted be taken to be true and the defen- dant may give such evidence as he may be advised and the Judge may call for such further proof either orally or by affidavit as he may think proper Provided that the Judge may if he thinks fit refuse to make any decree thereon and may make such order with respect to the further prosecution of the suit and the costs as the circumstances of the case may require. This section introduces a novel practice, which will be found very useful, enabling parties in undisputed or simple cases to get a speedy decree or order. It is, however, difl3.cult to see what evidence a defendant who submits should either desire, or be entitled, to offer. As to the practice under the section, see notes to R. 62. Appea/rance in Defence. Proceedings 18. If the defendant does not admit that the plaintiff is to defence, entitled to the relief prayed he shall when he enters an appearance to the statement of claim or at such later period as the Judge shall allow file a memorandum to the effect that he disputes the plaintiff's claim and shall within the time limited by a general rule in that behalf file in the office of the Master in Equity a demurrer plea or statement of defence to the statement of claim but after that time no defendant shall put in a demurrer plea or statement of defence without leave of the Judge Provided that the power of the Court to grant further time for demurring pleading or defending upon the application of any defendant shall remain in full force and that where the Judge shall grant further time to any defendant for demurring pleading or stating a defence the plaintiff's right to move for a decree under the provisions hereinafter contained shall in the meantime be suspended. EQUITY ACT, 1880. 15 See, as to filing memoranda of dispute, E. 67 ; demurrers, RR. 78-89 ; pleas, RE. 90-96 ; statements of defence, RR. 97-103 ; reply and subsequent pleadings, RR. 104-107. The old rule that a defendant cannot demur to what he has previously answered is no longer in force. Leave to amend his statement of defence authorises a defendant to put in a demurrer {Powell V. Jeweshury, 9 CD. 34). If he has obtained an order extending the time within which to put in his defence, he may demur within such extended time {Hodges v. Hodges, 2 CD. 112). Interrogatories and Statement of Defence. ly. No interrogatories shall hereafter be filed for the Interrogato- nss to examination of any defendant except by leave of the Court examine de- but every statement of defence shall as heretofore be verified hhed'but ° ' upon oath. answer (sic) to J^ be upon oath. See RR. 109-112. The practice as to interrogatories in England is now regulated by O. XXXL, r. 1 (1883), which provides that except in cases of fraud or breach of trust interrogatories are not to be adminis- tered without the leave of the Court. A further check upon the improper administration of interrogatories is imposed by r. 3, which provides that if interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the interrogatories and the answers thereto shall be paid by the party in fault. The object of requiring the leave of the Court is to prevent needless expense and the use of the power of discovery where it is not necessary {Aste v. Stwmore, 13 Q.B.D., at p. 329 ; Ma/rtin v. Spicer, 32 CD. 592). The practice adopted here upon an application for leave to file interrogatories is to annex a copy of the proposed interrogatories to the summons. It is much to be regretted that statements of defence are (contrary to the English practice) required to be on oath. The requirement is a damnosa hoereditas from the old practice, in which a defendant's answer constituted not only his pleading but his 16 EQUITY ACT, 1880. answer to the interrogatories which were regularly delivered to him. A statement of defence being now in no sense a discovery, but simply a pleading (i.e., a statement of the defendant's case), there is no reason why it should be verified on oath any more than the statement of claim : to require such verification seems to spoil without cause the symmetry of the new system of pleading. Form of state- 20. The statement of defence shall state all facts which ment of defence. constitute the ground of the defence together with such statements as the defendant may think it necessary or advisable to set forth in ordinary language and as concisely as is possible consistent with clearness and shall be divided into paragraphs numbered consecutively each paragraph containing as nearly as may be a separate and distinct statement and all facts stated in the statement of claim and not expressly and in terms denied in the statement of defence shall be deemed to be admitted for the purpose of the suit. This section (with one exception) corresponds with the English practice, being compounded of several Rules or parts of Rules under the Judicature Acts. The exception referred to is the omission per incuriam, after the word "denied," of the words "or not admitted." There are many allegations which defendants, especially if trustees, may be hardly warranted in denying, and yet cannot safely admit. The difficulty has, however, been got over by the useful decision that^ notwithstanding this section, an allegation in a statement of claim, which by the defence is not expressly and in terms "denied," but only " not admitted," is not to be deemed admitted for the purpose of the suit {Bourhe v. Wright, 4 N.S.W.R. Eq. 9). The difficulty has also been sub- sequently met by R. 102. See further R. 151, with the notes. A defendant who, though he has filed a memorandum of dispute, omits to file a statement of defence, will be treated as admitting the facts stated in the statement of claim, and cannot give evidence to contradict them {Bundle v. Short, 4 N.S.W. R. Eq. 47). EQUITY ACT, 1880. 17 21. A defendant may in his statement of defence set off Counter- ■ claims by or set up by way of counter-claim against the claim of the defendant, plaintiff any right or claim and such set-off" or counter-claim shall have the same effect as a statement of claim in a cross suit so as to enable the Court to pronounce a final judgment ' in the same suit both on the original and on the cross claim But the Court may on the application of the plaintiff before trial refuse permission to the defendant to avail himself of such set-off or counter-claim if in the opinion of the Judge such set-off or counter-claim cannot be conveniently disposed of in the pending suit or ought not to be allowed. This section corresponds with O. XIX., r. 3 (1875), except that it omits the words "whether such set-oflF or counter-claim sound in damages or not," which in the English r. occur after the words " any right or claim." The omission no doubt limits the application of the section; but a counter-claim may be properly made for such damages as are mentioned in the 32nd section of the Act. In England a counter-claimant has an express power (under s. 24 (3) of the Judicature Act, 1873), to name as defendants to his counter-claim not merely the plaintiff, but third persons not parties to the original suit ; but no such power exists in the colony, and consequently a defendant can only counter-claim here against the plaintiffs or some of them. A new procedure is introduced by this section designed to prevent the necessity of bringing a cross-suit in all cases where the counter-claim may conveniently be tried in the original suit; it does not give a right of set-off where it did not exist before {Ee Milan Tramways Co., 22 CD. 122). Courts of Equity, in virtue of their general jurisdiction, are accustomed to grant relief in all cases, where, although there are mutual and independent debts, yet there is a mutual credit between the parties, founded, at the time, upon the existence of some debts due by the crediting party to the other. Where there are cross-demands between the parties of such a nature that if both were recoverable at law they would be the subject of a set-off, then and in such a case, if either of the demands be a matter of B 18 EQUITY ACT, 1880. equitable jurisdiction, the set-off will be enforced in equity (Story, 1st Eng. ed., 1435, 1436a; see also fer Jessel, M.R., in Re Whitehouse & Co., 9 CD., p. 597 ; per Bramwell, L.J., in Fellas v. Neptune, • m insufficiency practice of excepting to statements of defence for insuiE- or imperti- U613.C6 ciency and to statements of claim statements of defence and other proceedings for impertinence is hereby aboUshed Provided that the Court may direct the costs occasioned by any impertinent matter introduced into any proceeding to be paid by the party introducing the same. This section is inexactly worded. The provision that, " except in the case of answers to interrogatories the practice of excepting to statements of defence for insufficiency is hereby abolished," is based upon a confusion between the old answer, which (see note to s. 19) combined discovery with pleading, and a statement of defence, which is a pleading only. Obviously there can be no such thing as excepting to a defendant's pleading for insufficiency : the more insufficient or imperfect it is, the better for the plaintiff. However, the intention of the section is pretty clear. Answers to interrogatories — including (s. 23) answers to interrogatories filed by a defendant — may be excepted to on the ground of either insufficiency or scandal ; but statements of claim and defence and other proceedings may uot|be excepted to for impertinence, though, as the prohibition does not extend to exceptions for scandal, it is presumed that exceptions on this ground mm/ still be filed to pleadings and other proceedings, as much as to answers to interrogatories, though such a course would be ill-advised, as a more direct and efficacious procedure is provided by RR. 58, 151, 223. As to the distinction between scandal and impertinence, scandal consists in the allegation of anything which is unbecoming the dignity of the Court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause, to which may be added that any unnecessary allegation bearing cruelly upon the moral character of an individual is also scandalous ; there are many cases, however, in 24 EQUITY ACT, 1880. which, though the words in the record are very scandalous, yet, if they are material to the matter in dispute, and tend to a discovery of the point in question, they will not be considered as scandalous. Although nothing relevant can be scandalous, matter may be impertinent without being scandalous. Impertinences are described by L. C. B. Gilbert, to be " where the records of the Court are stuffed with long recitals, or with long digressions of matter of fact, which are altogether unnecessary and totally immaterial to the matter in question, as where a deed is unneces- sarily set forth in hcec verba " (Daniell's Ch. Pr., 5th Ed., 292). In England, since the Judicature Act, exceptions to answers have been abolished, the matter in dispute being brought before the Court on motion or summons (0. XXXI., rr. 9, 10) (1875). As to the time for filing exceptions to answers, see R. 113, which, however, refers in terms only to exceptions for insufl&ciency, not for scandal. It is presumed, however, that the Court would apply the R. to both classes of exceptions. See also R. 114. Production of Documents. Production of 25. The Court may on the application of the plaintiff in a defendant, any suit make an order for the production by any defendant on oath of such documents in his possession or power relating to any matter in question in the suit as the Court shall think right and the Master in Equity shall have the like power under references to him and the Court or Master (as the case may be) may deal with such documents when produced in such manner as shall appear just. The like, by 26. The Court may on the application of any defendant plamtifls. ^^^ where he has been required to answer interrogatories not until after he has put in a sufficient statement of defence thereto) make an order for the production by the plaintiff on oath of such documents in his possession or power relating to any matter in question in the suit as the Court EQUITY ACT, 1880, 25 shall think right and the Master in Equity shall have the like power under references to him and the Court or Master (as the ease may be) may deal with such documents when produced in such manner as shall appear just. These two sections are taken substantially from the 18th and 20th sections of the 15 & 16 Vict., c. 86, and Cf. O. XXXI., r, 11 (1875), r. 14 (1883); in that rule the words "possession or power " for the purpose of production mean sole legal possession, a right and power to deal with the documents in question {Kearsley v. Philips, 10 Q.B.D., p. 40 ; on appeal ibid., 465). In the same rule the words " relating to any matter in question '' have been interpreted in Compagnie, Court and every officer or person appointed to examine any such witness by order of the Court shall have the power of administering oaths and also such other powers as by the order appointing him may be directed. This section is compounded, with some alterations, of parts of 0. XXXVIL, rr. 1, 4 (1875) ; and cf. 18 Vict., No. 13, ss. 2 & 3. This provision appears to apply only to the examination of witnesses where there is a pending litigation between contesting parties (In re, Hewitt, 15 Q.B.D., p. 163). EQUITY ACT, 1880. Some of the rules -which guide the Court in granting a commission to examine witnesses abroad may be found in the following cases : — Re Boyse, 20 CD. 760 ; Berdan v. Greenwood, ib. 764, n ; Lcmgen V. Tate, 24 CD., at p. 528 ; Armmir v. Walk&r, 25 CD. 673 ; Lawson v. Vacuum Brake Co., 27 CD. 137, explained in Coch v. Alloock, 21 Q.B.D. 178 ; Re Mysore West G. Co., 42 CD. 535. The Court in issuing a commission for the examination of a party to the suit (Nadin v. Bassett, 25 CD. 21 ; McQiuxde v. Hermcm, 3 N.S.W. W.N. 102) has imposed the condition that the evidence so taken shall not be read at the hearing if the other party requires such evidence to be given orally. Whenever a necessary witness is going abroad, or is, from illness, age, or other infirmity, likely to be unable to attend the trial, an order will be made for his examination under this section, in the presence of both parties {Warner v. Mosses, 16 CD. 100). The practice is that the witness examined de bene esse is examined by both parties. There might be a case — a case of imminent danger of death — in which leave might be given to either party to attend, and therefore it would not be absolutely necessary that both parties should attend ; but it must be shown to be " necessary for the purposes of justice" (per Jessel, M.R., ibid.). The words in inverted commas are the words occurring in the English rule : in the enactment under consideration we have " expedient,'' which is a wider term. And it has been held that the Court has juris- diction on a proper occasion, when it is " necessary for the purposes of justice," to make an order for the examination of witnesses upon an ex parte application, the order being taken by the applicant at his peril, and subject to the risk of being discharged on sufficient grounds {Bidder v. Bridges, 26 CD. 1). An order will not be made for the examination of witnesses before the trial, unless it is impossible, or at least really difficult, to procvire their attendance at the trial {The M. Moxham, 1 P.D. 116 ; per Jessel, M.E,., Warner v. Mosses, ubi supra ; consider Re Imperial Land Co. of Marseilles, W.N. (1877) 244; Spiller v. Paris, &c., Co., 27 W.R. 225 ; Banque Franco-Egyptienne v. Mtscher, W.N. (1879) 183; 28 W.E. 133). An application under this section should be made promptly : see Steuart v. Gladstone, 7 CD. 394. The Court has a discretionary power to direct the filing of depositions informally taken {Bolton v. Bolton, 2 CD. 217). EQUITY ACT, 1880. 45 4>0. All pleadings examinations and affidavits in causes or Pleadings, . . &c., out of the matters m Equity may be sworn and taken in any place jurisdiction. out of this colony under the dominion of Her Majesty before any Judge Notary Public or person authorised to administer oaths at such place or before any British Consul or Vice- Consul in any place out of Her Majesty's dominions And judicial notice shall be taken of the seal or signature as the case may be and authority of any such Judge Notary Public person Consul or Vice-Consul. This section corresponds, mutatis mutandis, with s. 22 of the 15 and 16 Vict., c. 86. It seems superfluous to state that where pleadings, &c., are sworn before persons of whose signature judicial notice is to be taken, no verification of their signature is necessary [Hayward v. Stephens, 36 L.J.'Ch. 135), or that the mere fact of the signature of an authorised person being attached to a document does not make such document receivable in evidence (^Re Forbes, 1 W.E. 32 ; see Re Goes, 12 Jur. 595). It will be noticed that the section is only permissive, and conse- quently the Court is at liberty to receive, and in fact has frequently received, pleadings, &c., sworn otherwise than before a British Consul or Vice-Consul in places out of the Queen's dominions, e.g., before notaries or persons authorised by the law of the foreign country to administer oaths (Levitt v. Levitt, 2 H. & M. 626 ; ffaggitt v. Iniff, 5 De G. M. & G. 910 ; ^e Kenah's Trusts, 15 W.R. 781 ; Gooke v. WUhy, 25 CD. 769). But in such cases the Court has no authority to take judicial notice of the signature or authority of the person before whom the document is sworn, and requires proof of these things {Baillie v. Jackson, 3 De G. M. & G. 38 ; Re Earl's Trusts, 4 K. & J. 300 ; Re Dams, 8 Eq. 98)— a certificate of the clerk of a Superior Court of New York has been held suificient verification [Levitt v. Levitt, ubi supra ; Alexander V. Nurse, W.N. (1871) 249)— and in Brooke v. Brooke, 17 CD. 833, where the execution of a release was attested by a notary in a colony, and there was no evidence that the attestation was for the purpose of using the deed in Court, held, nevertheless, that it was a document within the section of the English Act, and that 46 EQUITY ACT, 1880. the Court would take judicial notice of the notary's seal and signature, — though proof may be dispensed with, where the fund is very small {Mayne v. Butter, 13 W.R. 128), or where there is consent {Lees v. Lees, W.N. (1868) 268 ; Lyle v. Elwood, 15 Eq. 67 ; Bell v. Turner, 17 Eq. 439 ; Bacon v. Turner, W.N. (1876) 292, where there was only an unsworn declaration ; and see Whiting v. Bassett, 14 Eq. 70). Where there has been no consul or consular agent within reasonable access, the Court has accepted an affidavit made in one of the United States, attested by the Governor as being sealed with the great seal of the State (Be Scriven, 16 W.E Ch. Dig. 105), and has ordered an affidavit sworn before a foreign local magistrate to be filed, the seal and attestation of the local Court sufficiently authenticating his authority ( Gooper V. Moon, W.N. (1884) 78), and has appointed a resident solicitor special examiner to take the evidence (Drevon v. Drevon, 12 W.E. 66). Asaistanoe of 4:6. The Judge may in every case obtain the assistance scientiflo i" • i , • persons. ot conveyancing counsel accountants merchants engineers actuaries or other scientific persons the better to enable him to determine any matter at issue in any cause or proceeding and to act upon the certificate of any such person The allowance in respect of fees to such persons shall be regu- lated by the Master subject to an appeal to the Judge. The provisions of this section are taken from ss. 40 and 42 of 15 & 16 Vict., c. 80. By the Judicature Act, 1873, s. 56, provision is made for trials by the Court with the aid of assessors ; but such a method of trial has not been introduced here (unless it be authorised by the section above set out), and, even in England, has never been resorted to except in admiralty matters. Under this section a complicated builder's account was referred to chambers, there to be disposed of by the Judge personally, with, if necessary, the assistance of such scientific person as he should think fit to call in {Mildmay v. Lord Methuen, 1 Dr. 216); a ques- tion of alluvial encroachment on a sea-shore was referred to an engineer {A.-G. v. Chambers, 4 De G. er Knight Bruce, L, J., Nelson v. Booth, 3 De G. & J. 121) ; it applies only to the mode of carrying on an account directed by the decree, and does not extend to enable a substantial variation of the decree {per Turner, L.J., ibid.). A settled account may be admitted by the Master without an order {Newen v. Wetten, 31 Beav. 315) ; the practice, however, appears to be to obtain a special direction at the hearing (Seton (4th ed.), 794). The Master may not without an order take books as primd facie evidence {Gookes v. Gookes, 11 W.R. 871). In Holgate v. Shutt, 27 CD. Ill, 28 CD. Ill, 116, the audited accounts of a building society were treated as primd facie correct, but under an order directing an account the accounting party was allowed to set np any settled accounts, although settled accounts were not expressly mentioned in the order, and any settled accounts so set up were open to be impeached, although the order was equally silent with regard to impeaching them. Special directions : — Blackford v. Davis, 4 Ch. 304 ; Wolf v. Vanderzee, 17 W.R. 547 ; Hohson v. Jones, 9 Eq. 456 ; Deane v. Thwaite, 21 Beav. 621. Primd facie evidence: — Sleight v. Lawson, 3 K. & J. 292 ; Siainton v. Garron Go., 24 Beav. 346 ; Ogden v. Battams, 1 Jur. N.S. 791 ; Morgan v. Higgins, 5 Jur. N.S. 240 ; Banks v. Gartwright, 15 W.R. 417 ; Hardwick v. Wright, ib. 953 ; Coleman v. Mellersh, 2 Mac. & G. 309. EQUITY ACT, 1880. 59 Scde of Real Estate. 54. If in any suit instituted in relation to real estate it f frect&d^'' ''^ shall appear to the Court that it will be expedient that the before decree. same or any part thereof should be sold for the purposes of such suit the Court may at any time direct the same to be sold and such sale shall be as valid as if directed to be made by a decree or decretal order on the hearing and any party to the suit in possession of such estate or in receipt of the rents and profits thereof shall deliver up such possession or receipt to the purchaser or such other person as the Court shall direct. This section is taken, with merely verbal alterations, from the 55th section of the 15 & 16 Vict., c. 86; and cf. 0. LI., R. 1 (1883), which has been held not to give the Court any power to direct a sale in a case in which it had no power to do so previously {In re Robinson, 31 CD., p. 249). The section is intended to apply only to those cases in which, for the protection of the property or other like cause, it is neces- sary to come to the Court (per Romilly, M.R., Prince v. Cooper, 16 Beav. 546 ; per Malins, V.C, Tulloch v. Tulloch, 3 Eq. 574). In those cases the Court has power to order a sale before the hearing ( Tulloch v. TvMoch), and, a fortiori, after the hearing but before the Master's report (as in Bell v. Turner, 2 CD. 409). It is the course of the Court, when it is shown that it will be neces- sary to resort to real estate, to make an order for the sale of it, without waiting for the hearing or further consideration, the only question always being whether it is just and proper to make that order (jper Hall, V.C, S.C.). See further MaHin v. Hadlow, 1 W.R. 101. The section was intended to apply to administration suits ; it does not apply to ordinary suits for foreclosure {London, (fee, Co. V. Dover, 11 CD. 204, in which Da/ois v. Ashwin, 47 L.J. Ch. 70, was questioned). Application under the section maybe made on motion, asin Prince V. Cooper and Tulloch v. Tulloch (for form of which see Daniell's Ch. Forms (2nd ed), 1366), or petition, as in Bell v. Turner. See R. 26. 60 EQUITY ACT, 1880. Application of Income. pirti^a out*of ^^- Where any real or personal property is the subject of property in j^^y proceeding in Equity and the Court is satisfied that the certain cases, •' ^ ° ^ j same will be more than sufficient to answer all the claims thereon which ought to be provided for in such proceeding the Court may at any time after the commencement of such proceeding allow to the parties interested therein or any of them the whole or part of the annual income of such real property or a part of such personal property or of the income thereof up to such time as the said Court shall direct and for that purpose may make such orders as may appear expedient. This section is taken, witt verbal alterations, from the 57th section of the 15 & 16 Vict., c. 86. It diflfers, however, from the English enactment in not permitting an allowance of the whole of the income of personal property. It permits an allowance in proper cases^ of (1) the whole or part of the income of 7'eal property, (2) part of the capital of personal property, (3) part of the income of personal property. An allowance will only be made under this section wher3 the executors admit assets (Knight v. Knight, 16 Beav. 358), and where the applicants are clearly entitled, and some pressing reason exists for the application (Rowley v. Burgesg, 2 W.R. 652 ; Chubb V. Carter, W.M". (1867), 179). For a special order, see Stacey v. Southey, 1 Dr. 400. Applications under this section should be made in chambers (Bentley v. Craven, 1 W.R. 362 ; and see foot-note to Knight v. Knight, ubi supra). For form of summons, see Daniell's Oh. Forms, (2nd ed.), 1200. See also s. 62. InjuTiction. Injunctionsto 56. The practice of the Court with respect to injunctions ingsat'iaw! ' for the stay of proceedings at law shall so far as the nature EQUITY ACT, 1880. 61 of the case will admit be assimilated to the practice of the Court with respect to special injunctions generally and such injunctions may be granted upon interlocutory appli- cations supported by affidavit in like manner as in the case of other special injunctions. This section is taken, with verbal alterations, from the 58th section of the 15 & 16 Vict., c. 86. and receivers. 57. An iniunction may be granted or a receiver appointed Injunctions 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 whether there be a prayer for an injunction or receiver or not and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just and if an injunction is asked either before or at or after the hearing of any cause or matter to prevent any threatened or apprehended waste or trespass such injunction may be 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 be restrained under any colour of title and whether the estates claimed by both or by either of the parties are legal or equitable. This section is, with the exception of the words italicised (which have been added), and of the omission of the words "A mandamus or " at the beginning of the section, identical with s. 25, sub-s. 8, of the Judicature Act, 1873. The italicised words are an innovation upon the English practice, according to which injunctions cannot be granted {Colebourne v. Golehourne, 1 CD. 690), nor receivers appointed {Pares v. Glegg, 7 Jur. N.S. 1136; but see Malcolm v. Montgomery, 2 Moll. 500) before the hearing, unless specially claimed by the plaintiff's pleading. 62 EQUITY ACT, 1880. The first point to be considered is whether the section applies to the case of granting an injunction or receiver after the judgment [or hearing] as well as before. No doubt it applies to both. There is a larger discretion given to the Judges as to when they shall grant an application than they had before. Of course, like every new power, it must be exercised for judicial reasons ; but the existence of such power gets rid of any decisions, if decisions there be, limiting the exercise of the discretion as regards the exercising it on an interlocutory application as distinguished from a trial (per Jessel, M.R., Ango-Italian Bank v. Davies, 9 CD. 286, 287). But the power given to grant an injunction in all cases in which it shall appear to the Court to be "just or convenient " to do so does not in the least alter the principles on which the Court should act {per James, L.J., Day v. Brownrigg, 10 CD. 307 ; per Thesiger, L.J., Gashin v. Balls, 13 CD. 329); e.g'., the Court will not grant a mandatory injunction where it would not have granted one under the old practice (Gaskin v. Balls). In ascertaining what is "just," said Jessel, M.R., your must have regard to what is "convenient"; what is right or just must be decided, not by the caprice of the Judge, but according to sufficient legal reasons or on settled legal principles {Beddow v. Beddow, 9 CD. 93). In the words of the same learned Judge, the granting of an injunction must be "just" as well as " convenient " {Day v. Brownrigg, ubi supra'); the words "just or convenient" do not mean that the Court is to grant an injunction simply because the Court thinks it convenient : it means that the Court should grant an injunction for the protection of rights or for the prevention of injury according to legal principles {Aslatt v. Corporation of Southampton, 16 CD. 148). " But the moment you find there is a legal principle (the M.R. went on to say), that a man is about to suffer a serious injury, and that there is no pretence for inflicting that injury on him, it appears to me that the Court ought to interfere. Now, it has been said — and I think truly said — that, as a general rule, the Court only interferes where there is some question as to property. I do not think that the interference of the Court is absolutely confined to that now ; there may be cases in which the Court would interfere even when personal status is the only thing in question ; but it is not necessary for me to decide that question at the present moment." His Lordship then proceeded to grant an EQUITY ACT, 1880. 63 injunction restraining a corporation from avoiding the office of alderman held by the plaintiff, an injunction never heard of formerly {S.O.). That case > was questioned in our Court in Maopherson v. Sutherland, 6 N.S.W.R. Eq. 114, and it was laid down that the Court will not interfere in the affairs of a voluntary association unless there is property in question. . . . "If no member complains that the property of the association is about to be taken from him, or that some breach of the law or malversation has been committed, or that there has been some attempt to mis- apply the funds, the Court will not interfere" {per Martin, C.J., 120). But in a very recent case it has been stated that the right to grant an injunction does not depend in any way on the existence of property, but under its original and independent jurisdiction the Court will prevent what it considers and treats as a wrong, whether arising from a violation of an unquestionable right, or from breach of contract or confidence (Pollard v. Photographic Co., 40 CD. 354). In Cooper v. Whittingham, 15 CD. 501, Jessel, M.E., held that where a statute creates a new offence or imposes a penalty, the ancillary remedy by injunction may still be claimed, and stated his opinion to be that this section might be said to be a general supple- ment to all Acts of Parliament ; but this is a wider interpretation than has since been adopted by the Court of Appeal {Haywa/rd v. East London Waterworks Co., 28 CD. 146). By this section, said Jessel, M.R., larger jurisdiction to grant injunctions than existed before is given in every case {Qua/rtz, i&o., Co. v. BeaU, 20 CD. 507) ; and Fry, J., has referred to the evident intention of the legislature, as indicated by the section, to enlarge rather than diminish the power of the Court in respect of injunctions {Thomas v. Williams, 14 CD. 873). But it has since been laid down that under this section no power is given to the Court to issue an injunction in a case in which the Court before this Act had not power to give any remedy whatever {North London R. Co. v. G. N. Bailway Co., 11 Q.B.D. 30 ; London and Blachwall JR. Co. v. Cross, 31 CD. 354; and cf. Newton v. Newton, 11 P.D. 13, and the earlier cases which claimed for the English Courts, as at present constituted, an almost unlimited power of granting injunctions, could in any case only be cautiously cited as precedents applicable in New South Wales, because they proceed upon sections in the Judicature Act 64 EQUITY ACT, 1880. or Orders thereunder not adopted here, conferring upon the Chancery Division the large powers contained in the Common Law Procedure Act {Beddow v. Beddow, 9 CD. 89 ; compare Quartz, . It shall not under any circumstances be necessary for Regulations a respondent to give notice of cross appeal but if a respon- appeals, dent intends upon the hearing of the appeal to contend that the decision of the Court below should be varied or altered he shall within such time as may be prescribed by any general rule or by special order give notice of such intention 88 EQUITY ACT, 1880. to any parties who may be affected by such contention The omission to give such notice shall not diminish the powers by this Act conferred upon the Full Court but may in the discretion of the Court be ground for an adjournment of the appeal or for a special order as to costs. This section is taken from 0. LVIIL, r. 6 -(1875). It is obvious from the concluding sentence of this section that the previous direction that " if a respondent intends, &c., he shall, &c.," is directory only, and not imperative. A respondent who seeks to have an order varied on a point in ■which the appellant has no interest cannot proceed by cross-notice under this section, but must give a notice of appeal (^e Cavander's Trusts, 16 CD. 270 ; but see Halph v. Carrick, 11 CD. 880). Where an appeal is dismissed with costs, the costs occasioned by the respondent's cross-notice will be deducted from the costs of the appeal (The Lauretta, 4 P.D. 25). A respondent who has given cross-notice of appeal is in the same position as to costs as if he had presented a cross-appeal : accordingly, where a defendant appealed, and a co-defendant gave a cross-notice and succeeded on it, his costs were ordered to be paid by the appellant and the plaintiff in moieties (Harrison v. Cornwall, &c., Co., 18 CD. 334) ; and, in the converse case of a defendant succeeding in his appeal, and a co-defendant failing o i his cross-notice, the plaintiff and the party so failing were ordered each to pay one-half of the appellant's costs (Johnstone v. Cox, 19 CD. 17). If, however, the case be one where the costs cannot have been materially increased by the notice, the costs ought not to be apportioned, and in such a case, plaintiffs failing on their cross-notice, defendants were given a lump sum of £5 for their costs incidental to the notice (Robinson v.. Drakes, 23 CD. 98). As to the powers of the Full Court, see s. 73. Stay of 75. Every notice of appeal shall stay the execution of proceedings on appeal. proceedings upon the decree or order appealed from unless the Judge shall direct such execution to be proceeded with Provided that the Judge may (subject nevertheless to appeal as from any other order) direct such decree or order to be carried into execution and all proceedings to be taken EQUITY ACT, 1880. 89 thereupon as i£ no appeal had been entered which direction may be upon such terms as to security or otherwise or absolutely without any terms as to such Judge shall seem fit.' This enactment is the converse of the English rule (0. LVIII., r. 16) (1875), which is as follows: — "An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the Court appealed from, or any Judge thereof, or the Court of Appeal, may so order ; and no intermediate act or proceeding shall be invalidated, except so far as the Court appealed from may direct." In England an appeal from an interlocutory order may be brought on in a week or fortnight's time ; but in this colony the sittings of the Full Court for the hearing of Equity appeals are not continuous, and it is obvious that, if notice of appeal were not as a rule to stay execution, irreparable injury might be done by an erroneous order of the Court below. The section, however, gives the Judge ample discretionary powers to direct that execution be proceeded with, but it is apprehended that for such direction a special case must be mada By what seems an oversight, an order directing execution is made appealable like the order originally appealed from. But notice of appeal against an order directing execution will operate to stay that order, and, if the Court again direct execution, the appellant may, by a fresh notice of appeal, Hta.y that order, and so on toties quoties. A perverse appellant can thus neutralise entirely the power given to the Judge to direct execution pending appeal. But this view of the section is subject to the question what is the precise meaning of " proceedings upon the decree or order /' does it include, e.g., a simple order granting an injunction, or- does it refer only to something ulterior, e.g., to the taking of accounts in Chambers under the order ? If the expression stood alone, the latter interpretation would doubtless be the preferable one ; but the subsequent words "such decree or order," obviously referring to the same things as are meant by "proceedings upon the decree or order," seem to indicate that the last mentioned expression means simply " the decree or order," thus giving the perverse appellant before referred to the widest powers of defeating the orders of the Court, at all events up to the point at which his perverseness would amount to an abuse of the process of the Court. 90 EQUITY ACT, 1880. settled' ^""^ 76. The decrees and orders of the Supreme Court on appeal shall be settled by the Master as at present and the Court may in any decree or order direct what if any accounts shall be taken or inquiries made before the Judge and what if any before the Master. Gf. ss. 65, 66 ; and see RR. 206, 207, VII. (8). Appeal by 77. The Judge may on the application of any party or at the Judge, his own discretion and on such terms if any as he shall think fit to impose direct a rehearing by the Full Court of any cause petition motion or matter before him and in such case it shall not be necessary to give any notice of appeal but nothing herein shall prejudice the right of any party to appeal where the Judge shall not give any such direction. This is a remarkable provision, introducing an entirely novel practice. It confers an authority on the Judge, at his own discretion, to force an appeal m invitos — to direct that, though the losing party in the Court below may have no desire to question further the decision arrived at, and though he may be able ouly with difficulty to pay the costs of his unsuccessful litigation there, he shall nevertheless contest the case over again, at his own peril as to further costs. If this power were conferred by anything less than an Act of the Legislature, it would be safe to call it ultra vires; for, if the litigants are content, who has a right to compel them to renew the fight ? But it was apparently done by Sir W. Manning, P. J., in Cox v. Brown, 1 N.S.W. W.N. 79, though the report is confused. So far as the section authorises the Court on the application of a party to direct a rehearing by the Full Court, it was resorted to in In re the Underwood Estate Acts, In the matter of Felton's petition, 8 N.S.W.R. Eq. 132, where by consent a decree was made pro formA, and the case ordered to be reheard before the Full Court. EQUITY ACT, 1880. 91 78. The Judge or Full Court shall in every case have Costs. power to award costs as between solicitor and client. But the Master should not tax costs as between solicitor aud client, unless, specially so directed by the Court (Broughton v. Rodd, 6 S.C.R. Eq. 102). 79 . Nothing in this Act shall be construed to affect the Appeals to ° Privy Council right of any party to appeal to Her Majesty in Council from any such decree or order or from any reversal or affirmance thereof. An appeal lies directly from the Primary Judge in Equity to the Privy Council {Dean v. Dawson, 9 N.S.W.R. Eq. 27 ; Re Underwood' sWUl, 11 N.S.W.R. Eq. 313; Plomley v. Shepherd, [1891] A. C. 244; De Mestre v. West, ibid. 264). In the transcript sent to the Privy Council, on appeal from the Full Court reversing a decision of the Primary Judge, evidence taken on commission in a proceeding connected with the suit, and admissible therein, but not referred to before the Court, was allowed to be inserted. The reasons of the Court, which are to be submitted to the Privy Council, are only those of the Court appealed from — the Full Court — not those of the Primary Judge (Buchnell v. Yichery, 5 N.S.W.R. Eq. 81 ; Stockton Goal Go. v. Fletcher, 5 N.S.W. W.N. 29). Miscellaneous. 80. The Judges of the Supreme Court or any three of Power to m£bi£6 rules* them may make general rules for regulating the times and form and mode of procedure and generally the practice of the Court in respect of the several matters to which this Act relates and for fixing the amount of all fees and allowances to oflBcers of the Court and solicitors in reference to such matters and otherwise for the effectual execution of this Act and of the intention and object thereof Provided 92 EQUITY ACT, 1880. that the rules of the Supreme Court at- present in force in reference to such matters or any of them until repealed or altered by any such general rule shall continue in force. This section is taken from s. 12 of 21 & 22 Vict., c. 27. Rales to be laid before Parliament. 81. All rules made under this Act shall immediately after the making thereof be laid before both Houses of Parliament if then sitting or if not within ten days after the next sitting thereof and if either of the said Houses shall by any resolution passed within thirty days after such rules have been laid before it resolve that any such rule or any part thereof ought not to continue in force then such rule or part shall immediately cease to be binding. "This section does not require that the rule of Court, before it can have validity, must be laid before Parliament. It becomes a rule of Court directly it is signed by the Judges, and all that the Act says is that it shall be laid before Parliament, in order that Parliament, if it think fit, can resolve that any rule or portion of a rule is not to remain in force. The wording of the section shows that the rule is in force until set aside by resolution of the House. If it were otherwise the Court would not have power to make rules if Parliament did not sit for six months, whereas it might be necessary for the due administration of justice to pass rules at once" (per Windeyer, J., delivering the judgment of the Full Court in Lion Insurance Co. v. Neild, S.M.H., Dec. 2, 1889). In that case defendant's motion to rescind the order dis- missing his appeal because he had not complied with R. 3 of R.G. of 21st May, 1888 (corresponding with E. 199), as to the printing of the pleadiugs, &o., on the ground that the rule in question had not been laid before Parliament under this section, was dismissed with costs. But compare s. 25 of the Judicature Act, 1875, which is to the same effect as this section, providing that, on address by either House of Parliament praying that any rule or order may be annulled, Her Majesty may by Order in Council annul the same, and the rule or order so annulled shall thenceforth become void and of no effect. EQUITY ACT, 1880. 93 under which section, semhle, rules of Court become binding when thfey have been so laid before Parliament, and no address has been presented {Powell v. Davies, 82 L.T. 99). 82. In the construction of this Act the words " statement Interpreta- tion clanae. of claim " shall include " information " and the word " affidavit " shall include affirmation statutory declaration and attestation of honour. Cf. R. VII. (6). As to affirmations and declarations, see 1 01. Stat., 1636-9. Persons entitled to the privilege of peerage " answer" upon attestation or protestation of honour (Daniell's Ch. P. (5th ed.) 638, 648). 83. This Act shall commence on the first day of September Commence- ment of Act one thousand eight hundred and eighty and may he cited as and repeal of the " Equity Act of 1880 " and after that date the several Acts and parts of Acts specified in the Second Schedule hereto shall he repealed Provided that such repeal shall not have the effect of reviving any practice procedure or penalties which have been abolished by the said Acts or any of them or of invalidating any acts thereby authorised or validated. 94 EQUITY ACT, 1880. SCHEDULES. FIRST SCHEDULE. Indorsement on Statement of Claim,, Victoria R. To the withinnamed defendant A.B. (orwhere there ismore than one defendant defendants A.B. and CD.) greeting — We command you (" and every one of you " where there is more than one defendant) that within days after the service hereof on you exclusive of the day of such service you cause an appearance to be entered for you in our Supreme Court in the office of the Master in Equity to the within statement of claim and that if you do not admit that the plaintiff is entitled to the relief within prayed you do at the same time of entering appearance file in the office of the Master in Equity a memorandum to the effect that you dispute the plaintiffs claim and further that if you do admit the plaintiff's claim you do on the eighth day after such appearance or so soon after as you can be heard attend either personally or by counsel before the Judge in Equity at the Supreme Court House in King Street in the City of Sydney at ten of the o'clock in the forenoon and submit to such decree as is within prayed or as shall be just. Witness the Honourable the Primary Judge at Sydney the day of in the year of our Lord and in the year of our reign. EQUITY ACT, 18§0. 95 Note. — Appearances are to be entered at the oflBce of the Master in Equity at the Court House in King Street aforesaid and if you either neglect to enter your appearance or to file a memorandum as above mentioned or personally or by counsel to attend at the place and time above mentioned you will be subject to such order as the Court may think fit to make in your absence. SECOND SCHEDULE. Acts and pa/rts of Acts repealed. 4 Victoria No. 22 sections 20 & 21. 5 Victoria No. 9 sections 12 & 13. 11 Victoria No. 22 the whole. 16 Victoria No. 13 the whole. 17 Victoria No. 7 the whole. 26 Victoria No. 12 section 37. RULES OF COURT. 97 In the Supreme Court of| New South Wales. In Equity. REGUL^ GENERALES.* Thuksday, the 7th May, 1891. In pursuance of the several powers vested in us in that behalf, we do order and direct in manner following : — PRELIMINARY. I. From and after the 25th day of May, 1891, all the Rules and Orders which have been heretofore made and established in the Equity 'jurisdiction of this Court shall be rescinded ; and in lieu thereof the following shall constitute the Standing Rules of the Court in its Equitable jurisdiction, except that this rescinding shall not extend to or affect any General Rules and Orders now in force, where embodied in General Rules and Orders distributively or collectively applicable to the general administration and business of the several jurisdictions of the Supreme Court, nor any of the following Rules and Orders : — * Under the Orders to the "Settled Estates Act of 1886," R. 36, the Companies Acts, RR. of 1st April, 1889, R. 88, and the Lunacy RR. of 7th July, 1887, R. 42, in cases not provided for by these Rules, the Equity practice then in force is to be followed ; and under the Bankruptcy RR. of 29th August, 1890, R. 15, the Equity Rules are to regulate inquiries directed under a motion under s. 130 of the Bankruptcy Act before the Registrar and appeals from any decision or report made by him thereon ; see also s. 13 (2) of the same Act with regard to receivers, and cf. R. 146 of the Bankruptcy RR., 1887. G 98 RULES OF COURT. The General Rules of Court of 1st March, 1856, as to the officers and offices of the Court, or any General Rules as to proceedings in vacation. II. Notwithstanding anything herein expressed, the rescinding hereinbefore made shall not affect any practice of the Court in its Equitable jurisdiction, or any practice or usage of, in, or connected with, the offices of the said Court, or the officers thereof, which originated in or was sanctioned by any of the Rules and Orders hereby rescinded, or by prior usage of the Court, except so far as the same may be inconsistent with anything hereinafter contained. III. Where any of the Rules and Orders hereby rescinded were intended to abolish any writ, practice, matter, or thing, such rescinding shall not have the effect of reviving the same. IV. Every Rule or part of a Rule herein contained, which is a repetition, without variation, qf a Rule or Order, or part of a Rule or Order, hereby rescinded, shall have the same construction as was put on such rescinded Rule or Order, or part of a Rule or Order, and shall operate not as a new Rule, but in the same manner as such rescinded Rule or Order, or part of a Rule or Order, would have operated if these Rules had not been made. V. Every Rule or part of a Rule herein contained, which is a repetition, with variation, of a Rule or Order, or part of a Rule or Order, hereby rescinded, shall receive the same construction as was put on such rescinded Rule or Order, or part of a Rule or Order, and shall operate, not as a new Rule, but in the same manner as such rescinded Rule or Order, or part of a Rule or Order, would have operated if these Rules had not been made, except so far as such variation indicates a contrary intention. EULES OF COURT. 99 VI. Where there is no established practice or usage of the Court, as hereinbefore mentioned, and where none of the Rules now made shall be applicable, then the practice of the Supreme Court of Judicature in England, exercising its equity jurisdiction, shall be followed so far as applicable. The exact limits of the operation of this R. are doubtful. It is thought, however, that the R. cannot have the effect of intro- ducing into the colonial practice any English practice established after the date of the R. : this would seem to follow from the judgment of the Privy Council in Taylor v. Barton, 7 N.S.W.R. 30, in which case the Privy Oouncil, affirming the judgment of the Supreme Court, held that the Standing Order No. 1, to the effect that " in all cases not specially provided for hereinafter, or by sessional or other orders, resort shall be had to the rules, forms, and usages of the Imperial Parliament, which shall be followed so far as the same can be applied to the proceedings of the House," could not be construed so as to adopt by anticipation rules or orders of the House of Commons subsequently passed. The words "resort shall be had to the rules,'' &c., naturally signified the then existing and known rules, forms, and usages of the House of Commons. In the absence of words of prospect or futurity, and of any context indicative of an intention so improbable as that of adopting by anticipation all future changes in the procedure or practice of the House of Commons, their Lordships thought it would be unreasonable so to construe the Standing Order. This R. was made originally on the 29th of June, 1883, but such original R. was by the present RR. rescinded, and re-made as from the 25th May, 1891. The result seems to be to alter the operation of the rule so as to make it introduce the English practice (so far as applicable), not as it existed on the 29th June, 1883, but as it existed on the 25th May, 1891. Compare the notes to R. 34. VII. In these Rules the following words have the several meanings hereby assigned to them, unless there be something in the subject or context repugnant to such construction, viz : — 100 RULES OF COURT. (1.) Words importing the singular number include the plural number, and words importing the plural include the singular number. (2.) Words importing the masculine gender include females. (3.) The word "person" or "party" includes a body- politic or corporate. (4.) The words "statement of claim" include information. (5.) The word " plaintiff" includes informant. (6.) The words " affidavit " or " oath " include affirma- tion, statutory declaration, and the promise in lieu of oath under the Act 40 Vict., No. 8 ; and the word " sworn " includes affirmed, declared, and promised. Gf. section 82 of the Act. (7.) The word " receiver " includes consignee and manager. (8.) The words " the Court " mean the Primary Judge in Equity, or any Judge sitting in Equity, in Court, or in Chambers, unless the subject be a matter before the Court of Appeal. (9.) The words " the present practice of the Court " mean the practice of this Court at the time of the coming into force of these Rules. (10.) The title "Deputy Registrar" includes that of " Assistant Taxing Officer." (11.) The word "Master" means the "Master in Equity." RULES OF COURT. ' 101 PROCEEDINGS GENERALLY. 1. All proceedings shall be commenced and continued in the Equity OfBce, and each suit or matter shall be there kept in a distinct and separate form, entitled " In the Supreme Court of New South Wales. In Equity." 2. A book shall be kept in the Equity Office, to be called the Suit Book, which shall contain a chronological entry of every proceeding in every suit or matter. 3. All pleadings and proceedings shall be written in a clear legible hand, or in type, and the same shall not be received unless so written. ■4. All statements of claim, statements of defence, and sub- sequent pleadings, interrogatories, answers, and exceptions, and copies thereof respectively, and all petitions, reports, decrees, and decretal and other orders, shall be on foolscap paper, written briefwise, on one side only, with a quarter margin, and having not less than five folios nor more than seven folios of seventy -two words on each page, and divided into convenient paragraphs, with the numbers of the para- graphs severally written on the inner edge of the margin. 5. All affidavits and all examinations, cross-examinations, and re-examinations on references shall be on foolscap paper, in the form now ordinarily used, divided into convenient palcagraphs, with a quarter margin, but written on one side only of the paper, and folded lengthwise, with the name of 102 RULES OF COURT. each deponent or examinant indorsed thereon. And there shall not be less than three, folios nor more than four folios of seventy-two words on each page. 6. All orders, except Chamber Orders, and all decrees shall be signed and passed by the Master, and then sealed with the seal of the Court and entered in the entry-book. 7. All Chamber Orders shall be entered in the same manner and in the same office as orders made in open Court are entered. Save as aforesaid, the practice as to orders made in Chambers shall be the same as at Common Law. 8- All writs shall be sealed with the office seal of the Court or Master, and tested in the name of the Primary Judge in Equity. 9. Every summons, writ, and ordinary certificate shall be signed by the Master, Deputy Registrar, or the Chief Clerk. 10. Certificates by the Master, Deputy Registrar, or Chief Clerk of the filing of any pleading or documents shall not be required when such pleading or document is produced in Court. 11. All statements of defence, sworn pleas, and answers to interrogatories shall be taken before the Master, Deputy Registrar, or Chief Clerk and filed forthwith : Provided that statements of defence, sworn pleas, and answers of any party residing more than five miles from the Equity Office may be taken before a Commissioner of Affidavits or a Justice of the Peace, and the same shall be immediately sealed up and endorsed by such Commissioner or Justice of the Peace as aforesaid, as the case may be, with his signature. RULES OF COURT. 103 and transmitted to the Equity Office, with the least possible delay, and filed on receipt thereof ; and the signature of the party swearing the same shall be affixed or acknowledged by such party in the presence of the person before whom the same are sworn. 1 2. The practice respecting erasures or interlineations in affidavits shall extend and apply to statements of defence, answers, and pleas. 13- On the filing of any statement of defence, or any sub- sequent pleading, plea, demurrer, interrogatory, or answer, an attested copy thereof shall be forthwith served on the opposite party. Abatement and Compromise. 14. Where any suit becomes abated, or is compromised after the same is set down to be heard, the solicitor for either party shall certify the fact to the Master, and there- upon an entry thereof shall be made in the Suit Book opposite to the title of such suit. 15% Where any suit shall have been standing for one year in the Suit Book marked as " abated," or " compromised," or shall have been standing over generally, such suit shall at the expiration of the year be struck out of the Suit Book. Affidavits. 16. Any solicitor or person filing an affidavit not in accordance with the form prescribed in the General Rules of the Supreme Court applicable to affidavits, shall not be allowed the costs of preparing or filing such affidavit in any taxation of costs. 104 RULES OF COURT. 17. All affidavits shall state distinctly what facts or circumstances deposed to are within the deponent's own knowledge ; and, where any fact or circumstance is stated upon information derived from other sources than his own knowledge, he shall distinctly state what such sources are. 18. The costs of affidavits riot in conformity with the preceding Rule shall be disallowed on taxation, unless the Court shall otherwise direct. 19. Before any affidavit is used in Court or before the Master, such affidavit shall be first filed in the Equity Office ; and no order grounded upon an affidavit shall be drawn up, unless such affidavit be first so filed : Provided that no copy need hereafter be served for the purpose of any motion or petition, or of any proceeding in the Equity Office, and that every affidavit so filed may be read without any office copy having been taken. Attachment. 20. The Sheriff shall bring to the bar of the Court every person arrested upon any writ of attachment on the first day on which the Court shall sit in Equity next after such arrest, or as soon afterwards as practicable : Provided that the Sheriff may take bail for the appearance of the person arrested. As to obtaining a writ of attachment, see R. 189. 21. If the person arrested be not so brought before the Court, or if, being so brought, no motion be made for his committal, he shall be discharged out of custody by the Sheriff, without payment by him of the costs of his RULES OF COURT. 105 contempt, which in such case shall be paid by the party obtaining the attachment. But, in case of continued disobedience of the rule, decree, or order of the Court for a period of eight days after such discharge, the Court may order a fresh attachment to issue. 22. Where a party is in prison under an attachment, or being already in prison is detained under an attachment, and is not brought to the bar of the Court within thirty days from the time of his being actually in custody or detained under such attachment, he shall be discharged in respect of such attachment by the Sheriif, or keeper of the gaol in whose custody he is, without payment of the costs of his contempt, which in such case shall be paid by the party obtaining the attachment. But, in case of continued disobedience of the rule, decree, or order of the Court for a period of eight days after such discharge, the Court may order a fresh attachment to issue. Deputy Registrar and Chief Clerk. 23. The Deputy Registrar or Chief Clerk may sign for the Master any process issuing out of this Court which now requires the signature of the Master. 24i. The Deputy Registrar, when directed by the Court or Master, may discharge the duties of Registrar and the duties of Taxing Officer, and he may take accounts and prosecute inquiries as directed by the Court or Master, and for the purposes aforesaid shall have all the powers hereby given to the master. 25- Certificates of taxation and of funds in Court may, in the absence of the Master, be signed by the Deputy Registrar. 106 RULES OF COURT. Election of Jurisdiction. 26. In all cases in which it is alleged that the plaintiff is prosecuting the defendant in this Court and also at Law for the same matter, the defendant may at any time after appearance, or in case the plaintiff shall have filed interro- gatories seven days after filing a sufficient answer thereto, apply to the Court as of course in Chambers, for an order that the plaintiff make his election in which Court he will proceed, with the usual directions in that behalf. The order for election is to be applied for ex parte : the plaintiff may then, if so advised, move to discharge such order. By Cons. Ord. XLII., r. 8, the plaintiff may so move, on the merits confessed in the answer, or, if necessary, appearing by affidavit. Orders of course may, by the next R., be obtained by summons in Chambers. Interlocutory ApplicatioiJs. 27. Interlocutory applications in a suit may be made by motion or petition and supported by affidavit or otherwise, according to the present practice of the Court, save only that applications for orders of course may be by summons in Chambers, and that a petition shall be used in applications for special orders where so provided by Act of Parliament, or where, from the circumstances of the case or the position of the parties sought to be affected by the order applied for, the notice of motion would not sufficiently convey informa- tion of the facts and circumstances upon which the application is based. This R. must be read subject to s. 62 of the Act, and to 12 Vict., No. 1, s. 8, which enacts that no petition except a petition of course should thereafter be necessary in the Supreme Court in RULES OF COURT. 107 its Equity jurisdiction, but that the same relief which had theretofore been given on petition might thenceforth be given on motion. There does not appear to be any very distinct line of demarcation between the cases in which an application to the Court in a pending cause or matter should be made by motion, and those in which it should be made by petition ; but, as a general rule, where any long and intricate statement of facts is required, the application should be made by petition, while in other cases a motion will be sufficient (Dan. Ch. Pr., 5th ed., 1434). 28. Any party to a suit may at any stage thereof apply by motion on notice to the Court for such order as he may, upon any admission of fact in the pleading, or under the 108th of these Rules, be entitled to, without waiting for the determination of any other question between the parties (provided that where the execution of a document is ad/mitted, such document may be put in evidence), and the Court may, on such application, give such relief, subject to such terms, if any, as the Court may think fit. With the exception of the words italicised in the text (which have been added), this R. is taken from 0. XL., r. 11 (1875), [O. XXXII., r. 6 (1883)], which of all the Rules issued in England under the Judicature Act is probably the one most largely resorted to. Under this R. plaintiflFs have been enabled to obtain at an early stage of the suit an order for payment of trust funds into Court and a decree for administration [Rumsey v. Beade, 1 CD. 643 ; Bennett v. Moore, 1 CD. 692 ; Hetherington v. Longrigg, 10 CD. 162) ; an order directing the usual inquiries in a partition suit {Gilbert v. Smith, 2 CD. 686; Parsons v. Harris, 6 CD. 694) ; an order in a like suit for a sale and payment of the proceeds into Court, and for an account of rents and profits received by a party in possession (jBurnell y. Burnell, 11 CD. 213); the usual partnership accounts (Turquand v. Wilson, 1. CD. 85) ; specific performance [Brown v. Pearson, 21 CD. 716) ; foreclosure {Barnard v. Wielam,d, 30 W.R. 947, and cf. Smith v. Bavies, 28 CD. 650 ; Smith v. Buchan, 36 W.R. 631) ; &c., ko. 108 RULES OF COURT. In Gilbert v. Smith (uhi supra), James, L.J., said the plaintiffs were entitled to the order moved for ex debito justitim. The admission must, however, be such as would show that the plaintiff is clearly entitled to the order asked for ; the R. was not meant to apply when there is any serious question of law to be argued {per Mellish, L.J., Chilton v. Corporation of London, 7 CD. 735) ; in such a case a Judge would have a discretion as to whether or not he would make an order on motion, and with the exercise of that discretion the Court of Appeal ought not to interfere {Mellor V. Sidebotham, 5 CD. 342). The words of this beneficial R. are, it will be noticed, permissive only, not imperative ; never- theless, the English Judges have shown a marked disposition to avail themselves largely of the power it gives them of granting speedy relief, and of accelerating the proceedings in the suit. The plaintiff may move under the R. at any stage, and not- withstanding that he has joined issue, and given notice of trial {Brown v. Pearson, 21 CD. 716). Under the old practice, a plaintiff could not after decree obtain an order for payment into Court of trust moneys in a defendant's hands on admissions in the answer, but must have proceeded on the examination or report {Wright y. Lukes, 13 Beav. 107); but this canon cannot be applied to the modern statement of defence, for by the R. under consideration motions founded on admissions in the pleadings may be made at any stage of the suit. Where in an action for infringement of a patent, the defendant in the defence admitted certain instances of infringement, but denied that he had committed any others, and the plaintiff thereupon moved for judgment upon the admissions in the pleadings, held, that the plaintiff was entitled to an enquiry as to damages arising from the admitted infringements only {United Telephone Company V. Donohoe, 31 CD. 399). Where the defendant in a suit for specific performance of a contract for the sale of lands entered into an agreement with the plaintiff, the vendor, whereby he agreed to accept the plaintiff's title on the plaintiff obtaining a certificate under the Real Property Act, to pay interest on the unpaid purchase money from a certain date, to pay the costs of the suit as between solicitor and client, and also to' pay the costs of obtaining the certificate, while the plaintiff agreed to account to the defendant for the rents received in respect of the lands from a certain date. On RULES OF COURT. 109 interlocutory motion to enforce this agreement, held, that the plaintiff was entitled to a decree on the terms of the agreement as on an admission of facts, but that defendant might have time to file affidavits setting out any equities which might have arisen between the date of the agreement and this motion (Hentsch v. Dawharn, 10 N.S.W.R. Eq. 304). And see notes to R. 108. 29. Every petition shall, upon being presented and before any copy thereof is served upon any person intended to be served therewith, be filed in the Equity Office, and every person intended to be served with a copy of such petition shall be served with a written copy thereof according to the practice in reference to the service of statements of claim, together with an indorsement thereon, in the form or to the effect set out in Schedule J. to these Rules, with such variations as circumstances may require, stamped with the proper stamp by one of the clerks of the Equity Office. Petitions for the advice and direction of the Court under 26 Vict., No. 12, s. 30, are not to be verified by affidavit; where such affidavits were filed the Court refused to allow the costs of them(^e Cox's Will, 11 N.S.W.R. Eq. 124). Motions and Petitions. 30. Every notice of motion shall express the day on which it is intended to be made. 31. All petitions shall be addressed to the Primary Judge in Equity ; and the Master, Deputy Registrar, or Chief Clerk shall endorse thereon the usual directions. 32. At the foot of every petition preferred to the Court, and of every copy thereof, a statement shall be made of the persons (if any) intended to be served therewith ; and, if no RULES OP COURT. no person is intended to be served with such petition, a statement to that effect shall be made at the foot of the petition, and of every copy thereof. This has long been the English practice. A petition which wants the proper foot-note ought not to be received into the office for filing. 33. Unless the Court gives special leave to the contrary, there must be at least two clear days between the service of a notice of motion or petition and the day appointed for hearing the notice of motion or petition ; and in the com- putation of such two clear days Sundays and Holidays shall not be reckoned. Where a party applies for special leave to serve short notice of motion, he must distinctly state to the Court that the notice applied for is short ; and the same fact must distinctly appear on the face of the notice served on the other party {Dawson v. Beeson, 22 CD. 504). As to waiver of irregularity in a notice of motion, see Re Macrae, 25 CD. 19. Ne Exeat. 34. In all cases where the Supreme Court of Judicature in England would grant or direct a writ of Ne exeat Regno to issue, a writ of Ne exeat Golonid may be directed to issue under the seal of this Court, and tested in the name of the Primary Judge in Equity, and signed by the Master, Deputy Registrar, or Chief Clerk ; and such writ shall have the same effect in this Colony, and shall be applied for and served in the like manner, and under the same circum- stances, and subject to the same rules of practice, as the writ of Ne exeat Regno in England, EULES OP COURT. Ill The practice of the Su])reme Court of Judicature is to be followed in the issuing of these writs. See the notes to R. VI. According to the [jractice in England under the Judicature Acts (and, in the view of Jesse!, M.R. — as to which, however, the Court of Appeal gave no opinion — ^the practice of the Court of Chancery hpfore those Acts), the writ is not to be issued except in cases which come within the provisions of the 6th section of the Act 32 and 33 Vict., c. 62 (Drover v. Beyer, L.R. 13 CD. 242). The writ of jVe exe'U Regno is granted to prevent a person from leaving the realm, to the damage of the person to whom he is indebted, until he has given security for the amount of the debt. In order to obtain the writ the demand must be pecuniary, must be actually due, and for an ascertained amount ; Seton (4th ed.), 316 {q.v. for form of order). The debt must not only be due, but payable in prasenti (Colverson v. Bloomfield, 29 CD. 343). The N.S. Wales Act, 37 Vict., No. 11, makes special provision for the issue of the writ in the absence of the Primary Judge, or of all the Judges of the Supreme Court, or of the illness of the Judge remaining in Sydney (s. 7). Notice to Admit. 35- Notice to admit documents under section 43 of the " Equity Act of 1880 " may be in the form set forth in Schedule C to these Bules. Sheriff. 36. All duties formerly discharged in the High Court of Chancery in England in respect of process issued out of that Court or otherwise by a Sergeant-at-Arms shall be dis- charged in respect of process issued out of this Court by the Sheriff; and all such process ^hall be directed to the Sheriff. Seevice. 37. In every case where a party shall institute or defend any suit or proceeding, or appear in any matter, by a 112 RULES OF COURT. solicitor, service by or upon such solicitor shall (except for the purpose of bringing the party into contempt) be equiva- lent to service by or upon the party himself. 38. Where any party shall proceed or appear in person, he shall, except in the case of statements of claim and appear- ance thereto, hereinafter provided for, leave a memorandum in writing in the Equity Office, at the time of his taking the first step in the matter, setting forth his full name and address ; and also if his address shall be at some place more than one mile from the Equity Office another proper place to be called his address for service which shall not be more than one mile from the said Equity Office ; and service at the address for service set forth in the said memorandum shall be good service on him. Solicitor. 39. A solicitor shall not (except by leave of the Court) act in any suit or matter for more than one party, unless the parties represented by him are in the same interest ; and all the members of a firm may, for the purposes of this rule, be deemed one person. See R. 225, and cf. R. 306. 40. Where upon the hearing of any suit or matter it appears that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally or by some proper person on his behalf, or having omitted to procure the production of or to deliver any necessary document or paper which ought to have been produced or delivered, such solicitor shall personally pay to all or any of the parties such costs (if any) as the Court shall think fit to award. RULES OF COURT. Il3 This rule is taken with immaterial variations from Cons. Ord. XXL, r. 12. SUBPCENAS. •41. Where it is intended to sue out a subpoena, a praecipe for that purpose in the usual form, 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 an agent only, then also the name or firm and place of business or residence of the principal shall in all cases be filed in the Equity Office. 42. Writs of subpoena shall be in the forms used at Common Law, with such alterations and variations as circumstances may require. 43- No more than four persons shall be included in one subpoena : Provided that the party suing out the same shall be at liberty to sue out a subpoena for each person if it shall be requisite. 44. In the interval between suing out and service of any subpoena, the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ resealed upon leaving a corrected prcecipe of such subpoena marked with the words " altered' and resealed," and signed with the name and address of the solicitor suing out the same. 45- The service of subpoenas shall be effected by delivering a copy of the writ, and at the same time producing the original writ. 114 RULES OF COURT. 46. Affidavits filed for the purpose of proving the service of a subpoena must state where, when, and how such subpoena was served, and by whom such service was effected. 47. The service of any subpoena shall be of no validity if not made within twelve weeks after the teste of the writ. PAETIES. I. — Persons under Disability. II. — Paupers. I.— PERSONS UNDER DISABILITY. 48. Married women and infants may respectively sue as plaintiffs by their next friends, according to the present practice of this Court, and infants may, in like manner, defend any suit by their guardians appointed for that purpose. Married women may also, by the leave of the Court, sue or defend without their husbands and without a next friend, on giving such security (if any) for costs as the Court may require. This corresponds with 0. XVI., r. 8 (1875), [O. XVI., r. 16 (1883)]. Under this R. the name of a defendant, who was also the next friend of the plaintiffs, and whose wife was a defendant, was struck out, and liberty was given to the wife to defend separately {Lewis V. Nobbs, 8 CD. 591). As to an inquiry whether a suit is for the benefit of infant plaintiffs, and whether the person suing as their next friend is a proper person for such position, see McLaughlin v. Moore, 5 N.S.W.R. Eq. 111. A married woman who institutes proceedings with regard to her separate estate, must sue by her next friend ; if the husband has an interest in the separate estate he may be joined as co-plain- tiff, if not he must be made a defendant {Startin v. Pye, 11 N.S.W.R. Eq. 191 ; See v. Reynolds, ibid. 219). RULES OF COURT. 115 The R. gives the Court a complete judicial discretion to allow a married woman to sue alone or by a next friend, and either with or without giving security for costs. The old rule that an applica- tion that a next friend should give security for costs must be made before the next materinl step in the cause la taken is abrogated, and the Court has a judicial discretion to direct such security to be given at any time {Mwrtano v. Mann, 14 CD. 419). See further R. 75. A person cannot, pending his insolvency, act as the next friend of a married woman without giving security for costs ; otherwise, after certificate granted {Fraser v. Kearney, 11 S.C.R. Eq. 35). A married woman who has no separate property, except property which she is restrained from anticipating, and who appears without a next friend, must give security for the costs of the appeal {Whittaker v. Kershaw, 44 CD. 296). An infant plaintiff or defendant cannot be compelled to answer interrogatories [Mayor v. Collins, 24 Q.B.D. 361). A next friend is not a party to the suit {Dyhe v. Stephens, 30 CD. 190). As to the practice relating to next friends, see Daniell's Ch. P. 5th ed. 67, et seqq ; for forms, see Dan. Ch. F. 2nd ed. 1975. ■49. Any person who shall for the time being be o£ unsound mind, and whether or not so found by inquisition or declared under the Lunacy Act of 1878, may sue as plaintiff in any suit by his committee or guardian, if any such shall have been appointed, or if not, by his next friend ; and may, in like manner, defend any suit by his committee or guardian appointed under the said Act, or by his guardian ad litem. This corresponds with the English practice, for which see Daniell's Ch. P. 5th ed. 8, 80. 50. "Where any person required to be served with notice of a decree or order pursuant to the 6th Rule of sec. 7 of the Equity Act of 1880 is an infant, or a person of unsound 116 RULES OF COURT. mind not so found by inquisition or declared under the Lunacy Act of 1878, the notice shall be served upon such person or persons and in such manner as the Court or Master may direct. This rule is taken from Cons. Ord. VII., r. 5. See R. 181. 51. Guardians ad litem appointed for infants, or for persons of unsound mind not so found by inquisition or declared under the Lunacy Act of 1878, who shall be served with notice of any decree or order, shall be appointed in like manner as guardians ad litem to defend are appointed in suits. 52. At any time during the proceedings in any suit or matter, the Court may require a guardian ad litem to be appointed for any infant, or person of unsound mind not so found by inquisition or declared under the Lunacy Act of 1878, who has been served with notice of such decree or order, or who shall be required to be served with notice in any suit or matter ; and the Master shall have like power under references to him. These two rules are taken from Cons. Ord. VII., rr. 6, 7. II.— PAUPERS. 53- Any person may be admitted to prosecute or defend a suit in formed pauperis, according to the present practice of' the Court, provided that he obtain a certificate of counsel to the eiFect that the case is proper for relief in this Court. This Rule is equivalent to Cons. Ord. VII., r. 8. As to suits by and against paupers, see Daniell's Ch. P. 5th ed. 37-45, 140-U2. RULES OF COURT. 117 O^;. After a person has been admitted to sue or defend in forma pauperis, no fee, profit, or reward shall be taken of him by any counsel or solicitor for the despatch of his business during the time it shall depend in Court and he shall continue a pauper ; nor shall any agreement be made for any recompense or reward afterwards ; and any person offending herein shall be deemed guilty of a contempt of Court ; and the pauper who shall give any such fee or reward, or make any such agreements, shall be thenceforth dispaupered. This Rule is taken from Cons. Ord. VII., r. 9, omitting, how- ever, the words which end that r. — " and not be afterwards admitted again in that suit to sue or defend in formd pauperis." 55- The Counsel or solicitor assigned by the Court to assist a pauper may not refuse to do so, unless such Counsel or solicitor satisfy the Court with some good reason for his unwillingness to be so assigned or to continue to act under the assignment. This Rule (with the exception of the words italicised in the text, which are wanting in the English Order) is taken from Cons. Ord. VII., r. 10. The Court cannot assign counsel or solicitors to pauper defendants on the application of the plaintiff (Garrod v. Holden, 4 Beav. 245 ; Watkin v. Parker, 1 M. and Cr. 370). A pauper who has had counsel assigned to him cannot argue his case in person {Parkinson v. Hanhury, 4 De G. M. & G. 508). 56. No process of contempt shall be issued at the instance of a pauper until signed by his solicitor in the suit ; and no notice of motion served or petition presented on behalf of a pauper (except for the discharge of his solicitor) shall be of any effect, nor shall any person served with such notice 118 RULES OF COURT. or petition be bound to appear thereon, unless such notice or petition be signed by the solicitor of the pauper ; and such solicitor shall take care that no such process be taken out, and that no such notice or petition be served, need- lessly or for vexation, but upon just and good grounds. PLEADINGS GENERALLY. 57. statements of claim, statements of defence, and all subsequent pleadings, demurrers, and pleas shall, except by leave of the Court, be signed by counsel. Signature by counsel was for centuries the English practice, until it was provided by 0. XIX., r. 4 (1875), [O. XIX., r. .4 (1883)] that signature of counsel should not be necessary, — a provision that met with the express disapproval of Malins, V.O. {see. Bernard v. Hardwick, W.N. 1876, 134 ; Duckitt v. Jones, W.N. 1876, 17 ; 33 L.T. 777 ; Great Australian, &c., Go. v. Martin, 5 CD. 10). Notwithstanding the O., pleadings are still commonly signed in England as before. Where the amendments in a statement of claim consist merely of elisions, it does not, if amended by the counsel who originally signed it, need to be re-signed {Webster v. Threlfall, 1 S. &, S. 135) ; but if, after being filed, it is amended, it is irregular to put it again upon the file without a fresh signature to the draft, although the amendments have only reduced it to the shape in which it was originally settled by counsel {Burch v. Rich, 1 R. &M. 156). A pleading which requires the signature of counsel, but is not so signed, ought not to be received in the office. A statement of claim not signed by counsel is demurrable (Kirkley v. Burton, 5 Madd. 378), or it may be taken off the file {French v. Dear, 5 Ves. 547 ; Burch v. Rich, ubi supra). Where a plaintiff improperly altered a bill, after it had been signed by counsel, it was taken oflf the file with costs to be paid by the plaintiff {Troup v. Ricardo, 13 W.R. 147). 58. All pleadings in a suit shall be as brief as the nature of the case will admit, and shall not contain any RULES OF COURT. 119 scandalous or irrelevant matter. Deeds, writings, or records shall not be unnecessarily set out verbatim, but only so much of them or the substance and effect thereof as may be pertinent ; and in adjusting the costs of the suit the Court or Master may inquire, at the instance of any party thereto, into any unnecessary prolixity, and may order the costs thereby occasioned to be borne by the party chargeable with the same. This R. is compounded of Cons. Ord. VIII., r 2, and 0. XIX., r. 2, (1875) [1883]. As to striking out pleadings or parts of pleadings which may be scandalous, &c., see R. 151. See section 24 of the Act. 59. No pleading shall be of record or be used in Court until the same has been filed in the Equity Office. PROCEEDINGS IN SUIT BEFORE DEFENCE. I.- -Statements of Claim. II. — Indorsement on State- ment OF Claim. III. — Service op Statement of Claim. IV. — Appearance. V. — Defendants Sub- mitting OR Admitting. VL^Notice of Proceed- ings, WHEN UNNECESSARY. VII. — DEFAULT OF Appearance. VIII, — Security for Costs. I.— STATEMENTS OF CLAIM. 60. Statements of claim shall be in the form set out in Schedule A to these Rules, with such variations as the nature and circumstances of each case may require. See s. 6 of the Act. 61. Any person or persons trading under the name of a firm may be sued in the name of a (sic) firm, and any party 120 RULES OP COURT. to a suit may in such case apply by summons to the Court for a statement of the person or persons who are trading under the name of such firm, to be furnished in such manner and verified on oath or otherwise as the Court may direct. This R. is taken from 0. XVI., r. 10, 1875. [0. XVI., r. 14 (1883).] The provisions of R. 115 as to attachment for disobedience of orders to answer interrogatories, or for discovery or inspection of documents, do not apply to orders for the statement of the names of partners hereunder, see Pike v. F. Keene and Byne, 24 W.R. 322. II.- INDORSEMENT ON STATEMENT OF CLAIM. 62. The indorsement on the statement of claim shall be varied from the form set out in the Schedule of the Equity Act of 1880, and shall be as follows — Victoria R. To the within-named defendant A.B. \or where there is more than one defendant, defendants A.B. and CD.] greeting: We command you [and every of you where there is more than one defendant] that within days after the service hereof on you, exclusive of the day of such service, you cause an appearance to he entered for you in the Equity Office of our Supreme Court to the within statement of claim. And that you do, at the same time of entering your appearance, file in the Equity Office a memorandum stating in effect that you dispute or admit in whole or in part the plaintiff's claim, or submit to such decree or order as the Court may think fit to make, or disclaim all right, title, or interest in the subject matter of the within statement of claim. And if you admit the plaintiff's claim, you may, on the Tuesday following the eighth day after such appearance, or so soon after as you can be heard, attend either personally or by counsel or solicitor before the Judge sitting in Chambers at Chancery-square, in the City of Sydney, at ten of the clock in the forenoon, and submit to such decree as is within prayed or shall be just. RULES OF COURT. 121 Witness tlie Honourable A.B., the Primary Judge in Equity at Sydney, the day of , in the year of our Lord one thousand eight hundred and ninety- , and in the year of our reign. Note. — Appearances are to be entered in the Equity Office of the Supreme Court, at Chancery-square aforesaid, and if you neglect to enter your appearance, or to file a memorandum as above mentioned, or personally, or by counsel or solicitor to attend at the place and time above mentioned, you will be subject to such order as the Court may think fit to make in your absence. So far as this R. directs a form of indorsement varying from the form expressly prescribed by the section of the Act, it would seem to be clearly ultra vires. Where a decree is to be taken under the 17th sec. of the Act, it should be applied for in Chambers, where alone solicitors have audience. Of course, however, the Judge, sitting in Chambers, could, if he thought fit, adjourn any such application into Court, in which case solicitors could no longer appear. See RR. 136, 137, as to consent matters. 63. The solicitor of a plaintiif suing by a solicitor shall indorse upon every statement of claim 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 one mile from the Equity Office, another proper place to be called his address for service, which shall not be more than one mile from the Equity Office, where writs, notices, petitions, orders, summonses, warrants, and other documents, proceedings, and written communications may be left for him. And when any such solicitor is only agent of another solicitor, he shall add to his own name or firm and place of busi- ness, the name or firm and place of business of the principal solicitor. 64. A plaintiff" suing in person shall indorse upon every statement of claim, his place of residence and occupation 122 RULES OF COURT. and also, if hia place of business shall be more than one mile from the Equity Office, another proper place to be called his address for service, which shall not be more than one mile from the Equity Office, where writs, notices, petitions, orders, summonses, warrants, and other documents, pro- ceedings, and written communications may be left for him. These two Eules are taken from O. IV., rr. 1, 2 (1875) [1883]. II.— SERVICE OF STATEMENT OF CLAIM. 65- Service of a statement of claim shall be effected by serving a copy personally, or by leaving the same with a servant of the defendant, or some member of his family, at his dwelling-house or usual or last known place of abode. But such service shall not be required when the defendant by his solicitor agrees to accept service : And if it be made to appear to the Court that from the defendant being absent from the Colony, or from any other cause, the plaintiff is unable to effect prompt service as hereinbefore directed, the Court may make such order for substituted or other service, or for the substitution of notice for service, as may be just. See s. 13 of the Act, and as to service out of the jurisdiction and substituted service, see 13 Vict., No. 31. III.— APPEARANCE. 66- When a defendant within the jurisdiction of the Court is duly served with a statement of claim, he shall, if he reside within 100 miles from Sydney, appear thereto within eight days ; and, if he reside above 100 miles and less than 200 miles, within twelve days ; and, if he reside above 200 miles, within sixteen days, after service. 67. When a defendant enters his appearance he shall file a memorandum to the effect either that he disputes or admits RULES OF COURT. 123 the plaintiff's claim, or some part theieof, specifying what part, or that he desires to submit to such decree or order as the Court may think fit to make, or that he disclaims all right, title, or interest in the subj ect matter of the statement of claim. See s. 18 of the Act. 08. The solicitor of a defendant appearing by a solicitor shall state in such memorandum his place of business, and a place to be called his address for service, which shall not be more than one mile from the Equity Office. 69. A defendant appearing in person shall state in such memorandum his address, and a place to be called his address for service, which shall not be more than one mile from the Equity Office. 70. If the memorandum does not contain such address, it shall not be received ; and if any such address shall be illusory or fictitious, the appearance may be set aside by the Court, on the application of the plaintiff. RR. 68-70 are taken from O. XIL, rr. 7, 8, 9 (1875) [O. XII., rr. 10, 11, 12 (1883)]. v.— NOTICE OF PROCEEDINGS— WHEN UNNECESSARY. 71. When a defendant, being one of a number of defendants, some of whom dispute that the plaintiff is entitled to the relief prayed by the statement of claim, shall enter his appearance and shall file a memorandum to the effect either that he admits that the plaintiff is entitled to the relief prayed, or that he desires to submit to such decree or order as the Court may think fit to make, or that 124 RULES OF COURT. he disclaims all right, title, and interest in the subject matter of the statement of claim, it shall not be necessary that such defendant be served with notice of any proceed- ings in the suit, except of or until the hearing of the suit or of any application for the dismissal of such suit. DEFAULT OF APPEARANCE. 72. Where any defendant, not being an infant or person of weak or unsound mind,' unable of himself to defend the suit, is duly served with the statement of claim, and does not enter an appearance thereto within the time limited by the indorsement, the plaintiif may, after seven days from the time so limited for appearing thereto, apply to the Court on affidavit of service of the claim for a decree or order against such defendant in his absence, and there- upon the Court may, if satisfied of the due service of the claim, make such decree or order, or give such directions as to the taking of evidence and otherwise, for the further prosecution of the suit, as may seem just. The words " any defendant, not being an infant, or a person of weak or unsound mind, unable of himself to defend the suit," are large enough to except from the operation of this R. the case of a defendant of unsound mind, so found by inquisition or declared under the Lunacy Act of 1878. But from the terms of R. 74, it would seem that this is not so. Nor is there any reason why it should be so, for a defendant so found or declared a lunatic has already a committee or guardian by whom to defend the suit (see R. 49), and there is consequently no occasion to appoint a guardian ad litem for him. Under this R. a decree may be taken on default of appearance without the necessity (as provided by the old R.) of making an entry of default and thereupon moving for a decree. If the defendant enters an appearance and files a memorandum admitting the plaintiff's claim, a decree may be applied for in Chambers, s. 17, R. 62; if, on the other hand, the defendant enters an RULES OF COURT. 125 appearance and files a memorandum disputing the plaintiff's claim, but omits to file a statement of defence, a decree may be obtained under s. 28, R. 124. Decrees upon admissions are provided for under RR. 28, 108, and consent or short matters under R. 136. 73. A defendant, notwithstanding his default of appear- ance, may at any time apply to the Court for leave to appear and defend upon such terms as to costs and otherwise as the Court may direct. 74. Where, upon default made by defendant in not appearing to a statement of claim, it appears to the Court that such defendant is an infant, or a person of unsound mind not so found by inquisition, or declared under the Lunacy Act of 1878, so that he is unable of himself to defend the suit, the Court may, upon the application of the plaintiflF, order that one of the solicitors of the Court be assigned guardian of such defendant, by whom he may appear to and defend the suit : But no such order shall be made unless it appear to the Court, on the hearing of such application, that a copy of the statement of claim was duly served ; and that notice of such application was, after the expiration of the time allowed for appearing to the state- ment of claim, and at least six clear days before the day in such notice named for hearing the application, served upon, or left at the dwelling-house of, the person with whom, or under whose care, such defendant was at the time of serving such copy of the statement of claim ; and also, in the case of such defendant being an infant, not residing with or under the care of his father or guardian, served upon or left at the dwelling-house of the father or guardian of such infant, unless the Court, at the time of hearing such appli- cation, shall dispense with such last- mentioned service. 126 RULES OF COURT. With the exception of the words italicised in the text, this R. is taken, mutatis mutandis, from Cons. Ord. VII., r. 3, which (with the substitution of " some proper person " for " one of the solicitors of the Court ") was re-adopted by 0. XIII., r. 1 (1875) [1883]. The R. applies to petitions as well as suits l^Re Greaves, 2 W.R. 355). It applies to infants residing abroad (O'Brien v. Maitland, i De G. F. & J, 331 ; Anderson v. Slather, 10 Jur. 383), to infant married women (Oolman v. Northcote, 2 Ha. 147), and to a person of great age and incapable of giving a continuous attention to business {Newm,an v. Selfe, 1 1 W.R. 764 ; Steel v. Gobh, ibid. 298), but not to a person who suffers from bad health only, and not from any mental incapacity {Willyams v. Hodge, 1 Mac. & G. 516). On an application by the plaintiff under this R., the Court nominates the solicitor [Thomas v. Thomas, 7 Beav. 47 ; and see Biddulph V. Gamoys, 9 Beav. 548 ; Sheppard v. Harris, 15 L.J. Ch. 104). See R. 225. By analogy to this R. a guardian ad litem, to a defendant may, under circumstances rendering it necessary, be appointed at the instance of a co-defendant (Re Dawson, 41 CD. 415). As to costs of guardians ad litem appointed under this R., see R. 301. SECURITY FOR COSTS. 75- If it appears upon the statement of claim or otherwise, at any time during the prosecution of the suit, that the sole plaintiff, if only one, is, or if more than one, all the plaintiffs are, residing out of the jurisdiction of the Court, the defendant shall be entitled as of course to an order for the plaintiff or plaintiffs to give security to the Master for costs. And the Court may order such security, if it shall think fit, in respect of any one or more of several plaintiffs who shall be out of the jurisdiction ; and no further proceedings shall be taken in the suit except by leave of the Court until after such security shall have been given. See Morgan and Wurtzburg, 7-25 ; Dan, Ch. P. 5th ed. 28-37 ; Seton 4th ed. 125, 1643-5. RULES OF COURT. 127 Rule 48 gets rid, in the case of moving for security from a next friend, of the old canon of [iraotice that such an application must be made before taking a material step in the suit ; the terms of the piesent R. get rid of thu same obstructive canon in the case of moving for security from a plaintiff out of the jurisdiction (see Lydney, &c., Co. v. Bird, 23 CD. 358). A further innovation (not introduced into the English pi'antice) is that, where only one or some of several plaintiffs is or are out of the jurisdiction, security may nevertheless be obtained (though it is not, in this case, as of course) : this is a valuable provision, for it may well happen that the only substantial plaintiffs are abroad, the plaintiffs within the jurisdiction being men of straw. Under the present English practice security may be ordered to be given for past as well as future costs {Brochlehank v. King's Lynn Steamship Go., 3 C.P.D. 365 ; Massey v. Allen, 12 CD. 807). See R. VI. A defendant who admits the cause of action sued upon, and sets up a counter claim founded on a distinct claim, is not entitled to security for costs from the plaintiff, a foreigner lesiding out of the jurisdiction {Winter/eld v. Bradnum, 3 Q.B.D. 324). In an action for breach of contract, the defendant, a foreigner residing abroad, by his defence denied the breaches and also made a counter-claim for breaches of the same contract by the plaintiff, claiming damages to an amount less than the plaintiff's claim : — Held, that the defendant could not be ordered to give security for the plaintiff's costs occasioned by the counter claim (Mapleson v. Masini, 5 Q.B.D. 144). Of course, a mere defendant, though out of the jurisdiction, cannot be called on for security, notwithstand- ing that he takes an independent proceeding in the suit, e.g., prefers a petition (Cochrane v. Fearon, 18 Jur. 568 ; and see Mapleson v. Masini) ; nor can a shareholder, who resides out of the jurisdiction, and appears to oppose a petition for winding up a company (Re Percy, &a., Co. 2 CD. 531). See s. 70 and R. 198 as to the making of the deposit or giving the security required on appeals. 76. Security for costs may be given by bond to the Master according to the custom of the Court in the penalty of 128 RULES OF COURT. £100: Provided that the Court may, if it shall think fit, direct a greater or less amount of security to be given ; and that in any case the amount of security may be paid into Court in place of giving a bond. The English rule [O. LV., r. 2 (1875)] [O.LXV., r. 6 (1883)] is that in any cause or matter in which security for costs is required the security shall he of such amount, and be given at such time or times, and in such manner and form, as the Court or a Judge shall direct, and [O. LV., r. 3 (1875)] [0. LXV., r. 7 (1883)] that, where a bond for security is given, it must, unless otherwise ordered, be given to the party requiring the security, and not to an officer of the Court. In recent cases in England, security has been ordered for £500 {Republic of Costa Rica v. Erlanger, 3 CD. 62), and even £1,000 and £600 {Massey v. Allen, 12 O.D. 811). The terms of this Rule make it doubtful whether the Court has power to direct, against the will of the party giving the security, that the amount of the security ordered be paid into Court, or whether the effect is only to confer on the party ordered to give security the option of paying the amount into Court, or of securing it by bond. The former would be the more beneficial construction to put on the R., for it is obvious that a security by bond may prove to be no security at all ; but it is not clear that the words can properly bear such an interpretation. 77. The day on which an order that a plaintiff do give security for costs is served, and the time thenceforward until and including the day on which such security is given, shall not be reckoned in the computation of time allowed to a defendant to plead, file his statement of defence, or demur, or otherwise make his defence to the suit. RULES OP COURT. 129 DEFENCES— INTEKROGATORIES, &c. I. — Demurrer. II. — Plea. III. — Statement of Defence. IV. — Reply and Subsequent Pleadings. V. — Admis- sions. "VI. — Interrogatories. VII. — Exceptions. VIII.— Consequences of Default. I.— DEMURRER. 78. No demurrer shall be filed without a memorandum at the foot, stating shortly in substance the ground or grounds thereof, or the point or points intended to be relied on ; of which memorandum a copy shall be served, as part of such demurrer. See section 18 of the Act. In England demurrers are abrogated [O. XXV., r. 1 (1883)], but by r. 2 points of law may be raised in the pleadings, and when so raised may be disposed of by the Judge who tries the cause at or after the trial, or ■ may be set down for hearing and disposed of at any time before the trial. O. XXVIIL, r. 2 (1875) — which, however, did no more than re-state what had always been the practice in Equity as regards demurrers (see per Lord Cairns, Dawkins v. Lord Penrhyn, 4 App. Cas. 58)— provided that a demurrer should state some ground in law for the demurrer, but the party demurring should not, on the argument of the demurrer, be limited to the ground so stated. It would appear on a mere comparison. of these two provisions that the Colonial practice was different from the ' English, and that here a demurring party could rely only on those grounds of demurrer which he had specified ; but that this is not so appears from the terms of R. 83, which makes it clear that, except so far as that R. establishes a new practice as to costs, the practice here on demurrer, as to specification of the points relied on, is the same as it was in England. I 130 RULES OF COURT. The equity in a statement of claim was not apparent, but had to be collected from a long and complicated series of facts. A defendant put in a general demurrer on the ground " that the facts alleged do not show any cause of action to which effect can be given as against this defendant." It was held that, notwith- standing O. XXVIII., r. 2 (1875), a demurrer in that form was in such case sufficient {Bidder v. McLean, 20 CD. 512). The Statute of Frauds must be pleaded, and cannot be raised by demurrer {Dawhins v. Lord Penrhyn, uhi supra ; Clarke v. Callow, 46 L.J.Q.B. 53; Olley v. Fisher, 34 CD. 368); so also the Statute of Limitations, as regards personal actions {Dawhins V. Lord Penrhyn, 4 App.Cas. 59 ; Wakelee v. Davis, 25 W.R. 60), but, in real actions, the last mentioned Statute mm/ be raised by demurrer {Dawhins v. Lord Pen/rhyn, in effect over-ruling Noyes v. Crawley, 10 CD. 31). A demurrer for want of parties does not lie in England {Werdermam, v. Societe Generate d' Electricitd, 19 CD. 246); and this decision being principally based upon an Order [O. XXV III., r. 1 (1875)], which has since been incorporated in our RR. by R. 84, would appear to regulate the practice here (see R. VI.). 79. A defendant, demurring alone, may file a demurrer to a statement of claim within eight days after his appearance thereto, but not afterwards. And either party may set down the demurrer for argument immediately. 80. Where a demurrer is overruled, the defendant shall pay to the plaintiff the taxed costs occasioned thereby, unless the Court shall otherwise direct. 81. Where a demurrer to the whole or part of a statement of claim is allowed upon argument, the plaintiff, unless the Court shall otherwise direct, shall pay to the demurring party the costs of the demurrer, and where the demurrer is to the whole statement of claim, the costs of the suit also. These RR. make it unnecessary for the successful party on demurrer to ask for his costs. It is for the other side to ask, if a RULES OF COURT. 131 cases can be made, that he be deprived of them. With a view, however, to enforcing payment of the costs, it will be prudent to obtain an order of the Court for their payment. In Collins v. Feathersione (10 N.S.W.R. Eq. 274), the defendant demurred ore terms to the plaintiff's claim, the demurrer was overruled, and the defendant appealed, the appeal was allowed with costs, and the suit dismissed with costs only of the argument below ; but this decision seems irreconcilable with Bush v. Trowbridge Water- works Co. (10 Ch. 459), and Pea/rce v. Watts (20 Eq. 472), which were not cited to the Full Court. 82. Where a demurrer to the whole or part of a statement of claim is not set down for argument within twelve days after the filing thereof, and the plaintiff does not within such twelve days serve an order for leave to amend the statement of claim, the demurrer shall be held sufficient to the same extent and for the same purposes, and the plaintiff shall pay to the demurring party the same costs, as in the case of a demurrer to the whole or part of a statement of claim allowed upon argument. 83. Where any grounds of demurrer are urged in arguing a demurrer beyond the grounds therein expressed, and the grounds which are so expressed are disallowed, the defendant shall pay the same costs as if the demurrer were overruled, although on the grounds so newly urged the demurrer may be allowed, unless the Court shall otherwise direct. 84. Any party may demur to any pleading of the opposite party, or to any part of a pleading setting up a distinct cause of action, ground of defence, set-off, counter claim, reply, or as the case may be, on the ground that the facts alleged therein do not show any cause of action, or ground of defence to a claim or any part thereof, or set-off, or counter claim, or reply, or, as the case may be, to which 132 RULES OF COURT. effect can be given by the Court, as against the party demurring. This R. is adopted from O. XXVIIL, r. 1 (1875). The Common Law practice of demurring to any pleading is introduced into the Equity practice by this rule. 85. A demurrer shall state specifically whether it is to the whole or to a part, and if so, to what part of the pleading of the opposite party. It shall state some ground in law for the demurrer, but the party demurring shall not, on the argument of the demurrer, be limited to the ground so stated. So. A defendant desiring to demur to part of a statement of claim, and to put in a defence to the other part, shall combine such demurrer and defence in one pleading. And so, in every case where a party entitled to put in a further pleading desires to demur to part of the last pleading of the opposite party, he shall combine such demurrer and other pleading. 87. If the party demurring desires to be at liberty to plead as well as demur to the matter demurred to, he may, before demurring, apply to the Court for an order giving him leave to do so ; and the Court, if satisfied that there is reasonable ground for the demurrer, may make an order accordingly, or may reserve leave for him to plead after the demurrer is overruled, or may make such other order and upon such terms as may be just. These RR. are taken from 0. XXVIII., rr. 2, 4, 5 (1875). There are three alternatives provided under this R, for the party who " desires to be at liberty to plead as well as demur to the matter demurred to":— (1) He may obtain leave as at RULES OF COURT. 133 Common Law (17 Vict., No. 21, s. 74) to plead as well as demur; or (2) he may obtain an order reserving leave for him to plead after the demurrer is overruled — in both these cases the Court must be satisfied that there is reasonable ground for the demurrer ; or (3) he may demur and apply afterwards under R. 89 for leave to plead. 88. While a demurrer to the whole or any part of a pleading is pending, such pleading shall not be amended, unless by order of the Court ; and no such order shall be made except on payment of the costs of the demurrer. As to amendment, see RR. 151-159. 89. When a demurrer is overruled, the Court may make such order, and upon such terms as to the Court shall seem right, for allowing the demurring party to raise by pleading any case he may be^ desirous to set up in opposition to the matter demurred to. These RR. are taken from.O. XXVIII., rr. 7, 12 (1875). See note to R. 87. II.— PLEA. 90. A defendant may file a plea to a statement of claim within fourteen days after his appearance thereto, but not afterwards except by leave of the Court. And either party may set down the plea for argument immediately. By 0. XIX., r. 13 (1875), [0. XXL, r. 20 (1883)] no plea or defence shall be pleaded in abatement ; and for a considerable time before the Judicature Act pleas had become practically obsolete in England. It is apprehended that little, if any, recourse will be had to them here. See section 18 of the Act. 134 RULES OF COURT. 91. A plea may be put in without oath, where the matter of plea appears upon record, but, where the matter of plea does not appear upon record, the plea must be put in upon oath. This K. is taken from Cons. Ord. XIV., r. 2. 92. The dependency of a former suit for the same matter is a good plea, but, where the plaintiff disputes the truth of the plea, he may obtain an order of course for inquiry as to the truth thereof : And such order, and the report in pursuance thereof, shall be obtained within twenty-one days after the filing and service of such plea, otherwise the defendant may obtain as of course an order to dismiss the suit with costs. This R. is taken in substance from Cons. Ord. XIV., r. 6. 93. Where a plea is overruled, the defendant shall pay to the plaintiff the taxed costs occasioned thereby, unless the Court shall otherwise direct. This R. is taken from Cons. Ord. XIV., r. 12. 9'4. Where a plea to the whole or part of a statement of claim is allowed upon argument, the plaintiff, unless he undertakes to reply to the plea, or unless the Court other- wise directs, shall pay to the party by whom the plea is filed the costs of the plea ; and, where the plea is to the whole statement of claim, the costs of the suit also ; and in such last-mentioned case the order allowing the plea shall direct the dismissal of the suit. This R. is taken from Cons. Ord. XIV., r. 16. 95. Where a plea to the whole or part of a statement of claim is not set down for argument within fourteen days RULES OF COURT. 135 after the filing thereof, and the plaintiff does not within such time either serve an order for leave to amend the statement of claim, or by notice in writing undertake to reply to the plea, the plea shall be held good to the same extent and for the same purposes, and the same costs shall be paid by the plaintiff as in the case of a plea to the whole or part of a statement of claim allowed upon argument ; and, where the plea is to the whole statement of claim, the defendant by whom such plea was filed may at any time after the expiration of such fourteen days obtain as of course an order to dismiss the suit with costs. This R. is taken from Cons. Ord. XIV., r. 17, with the sub- stitution of fourteen days for three weeks. 96. Where the plaintiff undertakes to reply to a plea to the whole statement of claim, he shall not, without special leave of the Court, take any proceedings against the defendant by whom the plea was filed till after replication. This R. is taken from Cons. Ord. XTV., r. 18. It would seem that replication must be filed within two weeks after the defence or the last of the defences shall have been delivered, unless the time shall be extended by the Court, R. 105 III.— STATEMENT OF DEFENCE. 97. A defendant who has not filed a demurrer or plea shall file a statement of defence within three weeks after the time limited for the appearance of such defendant, or within such extended time as may be consented to by the plaintiff, or as the Court may, on application for that purpose, allow. And a statement of defence shall, except in the cases of corporations aggregate, be on oath. Aiid corporations aggregate may put in a statement of defence under their 136 RULES OF COURT. common seal : Provided that in such case the Court may nevertheless order that a statement of defence be put in on oath by such member or officer of the corporation as it shall think fit. As to statements of defence being on oath, see notes to the 19th section of the Act, and as to delivering interrogatories to any member or officer of a corporation, see R. 111. See section 18 of the Act. 98. Where a defendant disputes the validity of a patent, he shall deliver to the plaintiff at the time of delivering his statement of defence, or within such further time as the Court may direct, particulars stating on what grounds he disputes it, and where one of the grounds is want of novelty, must, unless the Court shall otherwise direct, state the time and place of the previous publication or user alleged by him ; and at the hearing no evidence shall, except by leave of the Court, be admitted in proof of any alleged infringe- ment or objection of which particulars are not so delivered. This R. is compounded of sub-ss. 2, 3, and 4, of s. 29 of the Patents, Designs, &c., Act, 1883 (46 and 47 Vict., c. 57). The object of that section is to prevent surprises at the hearing (Crompton v. Anglo-American Brush Electric Light Corp., 35 CD. 283). Where the defendant had been ordered to deliver further and better particulars, held, on appeal, that this order ought to be affirmed, for that if the defendant knew of a particular defect in the specification, he ought to point it out, that the plaintiff might not be taken by surprise. Particulars of objection may not be within the knowledge of the patentee and must be specified {Ledyard v. Bull, 11 App. Cas. 648). See also Halliday v. Meppen- stall Bros., 41 CD. 109 ; Union Electrical, &c., Go. v. Electrical Storage Co., 38 CD. 325 ; Moss v. Malings, 33 CD. 603. As to cqsts, c/. Parnell v. Mort, Liddell, & Co., 29 CD. 325 ; Badisolie Anilin, &c., v. Levinstein, 29 CD. 366, 419. In England no costs of particulars of objections will be allowed where no certificate RULES OF COURT. 137 that they are reasonable and proper has been given under s. 29 (6) of the above named Act (^Longbottom v. Shaw, 43 CD. 46). 99. Statements of defence shall be in the form set out in Schedule B to these Rules, with such variations as the nature and circumstances of each case may require. See sections 19 and 20 of the Act. 100. A defendant, in his statement of defence, shall set forth all matters not appearing in the statement of claim, and all grounds of defence, upon which he intends to rely. This R. of course does no more than re-state what has always been the practice of the Court. 0. XIX., r. 18 (1875), is to the same effect [c/. O. XTX., r. 15 (1883)]. As to raising defence of res judicata, see Houstoun v. Marquis ofSligo, 29 CD. 448 ; Ederain v. Cohen, 43 CD. 187. The defence of a purchase without notice is one which ought to be specifically alleged as well as proved by those who rely upon it (per Thesiger, L.J., A. G. v. Biiohosphated, &c., Co., 11 CD. 337) ; but a just inference from the facts admitted wOuld be sufficient {Taylor v. Blakeloch, 32 CD. 564). As to pleading statutes, see the notes to R. 78. In pleading concealed fraud to avoid the Statute of Limitations general aver- ments of fraud are not sufficient ; the allegations must be precise and full (Lawrence v. Lord Norreys, 15 App. Cas. 210, affirming the CA., 39 CD. 213). 101. Where any defendant sets off or sets up any right or claim by way of counter claim, he shall in his statement of defence state specifically that he does so by way of set off or counter claim, and shall pray specifically for the relief that he may consider himself entitled to. This E. is taken from 0. XIX., r. 10 (1875) [0. XXI., r. 10 (1883)]. 138 RULES OF COURT. As to the form of a counter claim, see notes to section 21 of the Act, and as to amendment see RR. 153, 156. 102. Where a defendant does not know, and is not in a position either to admit or deny a fact alleged in the plain- tiff's statement of claim, he may state that he does not know and that he is not able to admit that fact. 4 See s. 29 of the Act, with the notes, and compare O. XIX., r. 17 (1875) [0. XIX., r. 13 (1883)], which provides that every allega- tion of fact in any pleading in an action, 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. 1 03- It shall not be sufEcient for a defendant in his defence to deny generally the facts alleged in the statement of claim, or for a plaintiff in his reply to deny generally the facts 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. This corresponds with 0. XIX., r. 20 (1875) [O. XIX., r. 17 (1883)]. 0. XIX., r. 22 (1875) (which is probably involved in r. 20 of the same 0., or, if not, would yet seem to be in force here by virtue of R. VI.), provides as follows : — When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so 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 so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given. RULES OF COURT. 139 With regard to these rules, pleadings will be construed strictly (per Jessel, M.E., TJiorp v. Holdsworth, 3 CD. 637). The fol- lowing have been held insufficient as denials or non-admissions ; — " The defendant denies that the terms of arrangement between himself and the plaintiffs were definitely agreed upon as alleged (H.C.) •" " the defendants put the plaintifis to proof of the several allegations in their statement of claim '' (Harris v. Qamhle, 7 CD. 877) ; " the defendants do not admit the correctness of the state- ment set forth in pars. 1, 2, 3, and 6 of the plaintifi's statement of claim, and require proof thereof " (Butter v. Tregent, 12 CD. 758). So, too, where, in an action against a lessee to set aside a lease granted under a power, the statement of claim stated that the donee of the power had received from the lessee a certain sum as a bribe, and stated the circumstances, and the defence denied that that sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given, it was held that the giving of a bribe was not suffi- ciently denied (Tildeshy v. Harper, 7 CD. 403 ; see 10 CD. 393). Again, the statement of claim in a suit for specific performance stated that the predecessor in title of the plaintifi", by his agent lawfully authorised, signed an agreement with H., the predecessor in title of the defendant. The statement of defence denied this in words following the words of the statement of claim, and then proceeded to state that H. was of unsound mind, and did not lawfully authorise anyone as his agent to sign an agreement ; and in a subsequent par. denied that any agreement was signed by H. or any person by him lawfully authorised. It was held by the Court of Appeal that the defendants could only enter into evidence to show H.'s unsoundness of mind, and could not enter into evidence to show that the agent was not duly authorised (Byrd v. Nunn, 7 CD. 284). Again, where, in an action for damages for an alleged infringement of the plaintiflf's copyright in a song, the defendant by his defence alleged that the song had not been registered until a certain date, and added " the defendant denies that the song has been duly registered ; the time of the first publication thereof is not truly entered on the register,'' it was held that the defendant was only entitled to prove that the time of the first publication had been untruly entered, and not that the name of the publisher had been untruly stated (Collette v. Goode, 7 CD. -842). 140 RULES OF COURT. Where the statement of claim in a foreclosure action set out the purport and effect of several mortgage deeds, and alleged that they were duly executed, and the statement of defence craved leave to refer to the deeds, when produced, and, save as by such deeds, when produced, should appear, did not admit that the same were of or to the purport or effect in the state- ment of claim mentioned, it was held that there was a sufficient admission of the execution of the deeds (Barnard v. Wieland, 30 W.E. 947, and cf. Smith v. Davies, 28 O.D. 650; Smith v. Buchan, 36 W.R. 631). IV. REPLY AND SUBSEQUENT PLEADINGS. 104. Subject to the last preceding Rule, the plaintiff by his reply may 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 fact 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. This R. is taken from O. XIX. r. 21 (1875) [O. XIX., r. 18 (1883)]. See notes to E. 102, and see RR. 130, 131, 134. Where the defendant has filed a counter claim, the proper course for the plaintiff to pursue is to reply to the defendant's defence and put in a defence to the counter claim in the same pleading. The defendant can then reply to the plaintiff's defence to the counter claim (Kerr v. Stiles, 5 N.S.W.R. Eq. 76). 105. A plaintiff shall deliver his reply, if any, within two weeks after the defence or the last of the defences shall have been delivered, unless the time shall be extended by the Court. This R. corresponds with 0. XXIV., r. 1 (1875), except that two weeks is substituted for three weeks [cf. O. XXIII., r. 1 (1883)]. RULES OF COURT. 141 Mere joinder of issue is necessary, otherwise under R. 131 the statements of fact in the pleading last filed are td be deemed to be admitted. This rule applies to a reply to a counter claim as well as to a reply to a defence (c/. Rumley v. Winn, 22 Q.B.D. 267). 106. No pleading subsequent to reply, other than a joinder of issue, shall be pleaded without leave of the Court, and then upon such terms as the Court shall think fit. 107. Subject to the last preceding rule, every pleading subsequent to reply shall be delivered within one week after the delivery of the. previous pleading, unless the time shall be extended by the Court. These RR. are taken from O. XXIV., rr. 2, 3 (1875), except that one week is substituted for four days in R. 107 (c/. O. XXIIL, rr. 2, 3) (1883). The Court has power to enlarge or abridge time on sufficient cause shown (R. 294). V. -ADMISSIONS. 108 Any party to a suit may give notice, by his own statement or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in the statement of claim, defence, or reply of any other party. This R. corresponds with O. XXXIL, r. 1, 1875 [1883]. See notes to s. 20 of the Act, and RR. 28, 102, 103, 131, and Seton (4th ed.) 30, 32. Admissions may be obtained by interrogatories and the burden of proof thus made easier than it otherwise would have been {A. G. V. Gaskill, 20 CD. 519). Implied admissions arise where the allegations of fact have not been specifically dealt with (see RR. 102, 103), and on default in 142 RULES OP COURT. reply, &c., the statements of fact in the pleading last filed shall be deemed to be admitted ; see R. 131, and Lvmisden v. Winter, 8 Q.B.D. 650. The rule that evidence is not to be pleaded applies to admis- sions as well as to other evidence {Davy v. Ga/rrett, 7 CD. 473). VI.— INTERROGATORIES. 109. A plaintiif may, by leave of the Court, at any time before the expiration of fourteen days after the suit is at issue, file interrogatories for the examination of a defendant ; and the defendant shall, on oath, answer such interrogatories and file such answers within fourteen days after the service of the interrogatbjies on him : And the answer shall be deemed sufficient, unless exceptions are filed thereto within seven days after the filing of such answer. See s. 19 of the Act. The principle which guides the Court in granting leave to file interrogatories is this : The plaintifi' is entitled to find out from the defendant what the case is that he has to meet, but not what the evidence is on which the defendant intends to support that case {Cameron v. Cameron, 7 N.S.W. W.N. 29). 110. A defendant may, by leave of the Court, and either at the time of filing his statement of defence or sub- sequently, before the expiration of fourteen days after the suit is at issue, file interrogatories for the examination of the plaintiff", to which interrogatories shall be prefixed a concise statement of the subject on which a discovery is sought ; and the plaintiff shall, on oath, answer such inter- rogatories and file such answer within fourteen days after the service on him of the said interrogatories; and the answer shall be deemed sufficient, unless exceptions are RULES OF COURT. 143 filed thereto within seven days after the filing of such answer : Provided always that it shall not be competent to any defendant to file interrogatories until he has answered any interrogatories previously filed by the plaintiff" for his examination. See s. 23 of the Act. 111. If any party to a cause or matter be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply at Ghambers for an order allowing him to deliver interrogatories to any member or officer of'such corporation, company or body, and an order may be made accordingly. This E. corresponds with 0. XXXI., r. 5 (1883), with the addition of the words in italics, and abolishes the old practice of making the officer a party for the purpose of discovery. See the notes to section 23 of the Act. Gf. s. 23 of 20 Vict., No. 31. As to discovery and inspection under the Companies Act, see ss. 153, 207 of 37 Vict., No. 19. 112. Under special circumstances the Court may allow either party to file interrogatories at a later period in the suit. See s. 23 of the Act. VII.— EXCEPTIONS FOR INSUFFICIENCY. 113. Exceptions for insufficiency may be filed to any answer or further answer to interrogatories within seven days after the filing of . such answer or further answer. And such exceptions shall describe the passages which are alleged to be insufficient. 144 RULES OF COURT. In England the ' suflB.ciency or otherwise of an affidavit objected to as insufficient is determined on motion or summons. See the notes to s. 24 of the Act. 114. Where exceptions are allowed, the Court may direct that a further answer be filed, or that the party in default be examined viva voce. See note to R. 113, and cf. 0. XXXI., r. 11 (1883). VIII. CONSEQUENCES OF DEFAULT. 115. If any party fail to comply with an order to answer interrogatories, or for discovery or inspection of documents, . he shall be liable to attachment : And he shall also, if a plaintiff, be liable to have proceedings in the suit stayed until compliance ; 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 filed a memorandum of dispute or statement of defence ; and the Court may order accordingly. See further R. 119. Compare 0. XXXI., r. 20 (1875) [0. XXXI., r. 21 (1883)J:— If any party fails to comply with any order to answer interroga- tories or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution; and, if a defen- dant, 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 interro- gating may apply to the Court or a Judge for an order to the effect, and an order may be made accordingly. Under this O. it has been laid down that it is not imperative on the Court to make an order dismissing the action, or striking out the defence {Hartley v. Owen, 34 L.T. 752, W.N. 1876, 193); such extreme measures will only be taken as a last resort {Twycross v. Grant, W.N. 1875, 201 ; Anon., ibid. 202). And see R. 120. RULES OF COURT. 145 1 i O. Where a party has filed interrogatories, and has just reason to believe that the party interrogated means to abscond before answering, the Court may, on the ex parte application of the party interrogating, order an attachment to issue against him, returnable at such time as the Court shall direct. 117. Where a party is brought up in custody for want of an answer to interrogatories, and makes oath in Court that he is unable, by reason of poverty, to employ a solicitor to put in such answer, the Court, if satisfied as to the truth of that allegation, may assign a solicitor and counsel for such party to enable him to put in an answer. 118. Where a party, in contempt for want of answer or discovery, obtains upon filing an answer or aflSdavit of discovery the common order to be discharged as to his contempt, on payment or tender of the costs thereof; or where the party obtaining the attachment accepts the costs without order, it shall not be necessary, in case the answer or affidavit is insufficient, to recommence the process of contempt, but the party obtaining the attachment may take up the process at the point to which he had before proceeded. 146 RULES OP COURT. PROCEEDINGS BETWEEN DEFENCE AND HEARING. I. — Dismissing Suit Foa want of Proseoution. II. — Pro- duction OF Documents. III. — Preliminary Accounts AND Inquiries. IV". — Motion for Decree. V. — Close OF Pleadings. VI.— Default of Pleading. VII. — Settling Issues of Fact. VIII. — Setting Down Suit for Hearing. I.— DISMISSING suit FOR WANT OF PROSEOUTION. 119- Any party may move to dismiss a suit or counter claim for want of prosecution when the opposite party has not, within the time fixed by the Rules in that behalf, or by an order of the Court, taken such step as may be then necessary in the suit or counter claim. Where the plaintiff has become insolvent, notice of motion to dismiss for want of prosecution must be served on the assignee nnder his ixiSolYenoy (Wright v.- Swindon, dtc, Co., 4 CD. 164; and see Price v. Richards, 9 Eq. 35). If the plaintiff does not set down the suit for hearing within seven days after a joinder of issue, the defendant may, instead of moving to dismiss, himself set the suit down for hearing (R. 135). An insolvent defendant may move to dismiss (Levi v. Heritage, 26 Beav. 560), but a defendant in contempt may not, until his contempt is cleared (Vowles v. Toung, 9 Ves. 173) or unless the plaintiff has waived the contempt (Herrett v. Reynolds, 2 Gifif. 409). See s. 27 of the Act. 120. Upon any application to dismiss a suit or counter claim for want of prosecution, the Court may make an order to that effect, or such other order, or may impose such terms as may appear just and reasonable. RULES OF COURT. 147 See notes to R. 115. For cases in which a suit may be dismissed at a defendant's instance as of course, see RR. 92, 95. See s. 27 of the Act. II.— PRODUCTION OF DOCUMENTS. 121. Any party may, without filing an affidavit, apply to the Court for an order directing any other party to the suit to make discovery on oath of all the documents which are, or have heen, in his possession or power relating to any matter in question in the suit. See ss. 25, 26 of the Act. As to when a document is protected from production, see .4./.^ Bank v. Steel, 11 N.S.W.R. Eq. 18. 122. The party against whom such an order has been made shall make an affidavit specifying the documents which he has, or has had, in his possession or power, and also which, if any, of such documents he objects to produce ; and it shall be in the form set out in Schedule D to these Rules, with such variations as circumstances may require. An affidavit as to documents setting out a very large number of letters, instead of referring to them in bundles properly identified, was ordered to be taken off the file, the costs to be paid by the party making the affidavit (Walker v. Poole, 21 CD. 835). When discovery of documents is made, it is not enough to make them up in bundles and number the bundles, but the documents in the bundles must be described, and each document must be marked or numbered specially, so that any party requiring a particular document may call for it {Cooke v. Smith, 1891, 1 Ch., 509, 522). III.— INQUIRIES AND ACCOUNTS. 123- The Court may at any stage of the proceedings in a suit or matter direct any necessary inquiries or accounts to 148 RULES OF COURT. be made or taken, notwithstanding that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the suit or matter should proceed in the ordinary manner. This R. corresponds with 0. XXXIII. (1875) [O. XXXIIL, r. 2 (1883)]. The R. does not authorise the sending the whole of the questions in a cause to be tried iu Chambers, but only to authorise the Court to direct, before trial, accounts and inquiries which would otherwise have been directed at the trial (Garnham V. Skipper, 29 CD. 566). Allegations of wilful default ought to be disposed of at the hearing and not referred to Chambers (Smith v. Armitage, 24 CD. 727). Mode of application under this R. by motion, see R. 27. IV.— MOTION FOR DECREE. 124. Sixteen days' notice shall be given to the defendant of any motion for a decree or decretal order under section 28 of the Equity Act of 1880. See section 28 of the Act. 125' All affidavits to be used in support of such motion shall be filed before the service of such notice, and a list of such affidavits shall be set forth at the foot of such notice. Copies of the affidavits need not be served (R. 19). 126- The defendant, within ten days after service of such notice, shall file his affidavits in answer, and deliver to the plaintiff" a list thereof. 127. Within four days after the expiration of such ten days, or other period to which the time for filing the defendant's affidavits has been enlarged, the plaintiff" shall RULES OF COURT. 149 file his affidavits in reply, and he shall deliver to the defendant a list thereof. 128. No further evidence on either side shall be used upon such motion for a decree or decretal order without leave or direction of the Court. 129. Every notice of motion for a decree or decretal order shall be set down for hearing on such day as the Court may by any order or general rule direct. v.— CLOSE OF PLEADINGS. 130. As soon as either party has joined issue upon any pleading of the opposite party simply without adding any further or other pleading thereto, the pleadings as between such parties shall be deemed to be closed. This R. corresponds with O. XXV. (1875) [O. XXIII., r. 5 (1883)]. As to joinder of issue, see R. 104 ; close of proceedings in default of reply, R. 131 ; setting suit down for hearing, R. 134. See section 30 of the Act. VI.— DEFAULT OF PLEADING. 131. If the plaintiff does not file a reply or demurrer, or any pai-ty does not file any subsequent pleading or a demurrer, within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and the statements of fact in the pleading last filed shall be deemed to be admitted. This R. is taken from 0. XXIX., r. 12 (1875). This practice is now reversed in England by 0. XXVII., r. 13 (1883), which provides that such statements of fact shall "be deemed to have been denied and put in issue." See note to R. 130. 150 RULES OF COURT. 132. Any decree or order by default may be set aside by the Court, upon such terms as to costs or otherwise as such Court may think fit. This R. is taken from 0. XXIX., r. 14 (1875) [O. XXVII., r. 15 (1883)]. VU.— SETTLING ISSUES OF FACT. 133- Where in any suit it appears that the pleadings do not sufficiently define the issues of fact in dispute between the parties, and it shall be deemed desirable that they should be so defined, the Court may on the application of any party or of its own motion after replication settle such issues. VIII. -SETTING DOWN SUITS FOR HEARING. 134. Within seven days after a joinder of issue, the plaintiff ^hall set down the suit for hearing on some day, except by leave of the Court not earlier than the fourteenth nor later than the twenty-eighth day after so setting down the suit ; and the plaintiff shall forthwith serve notice of the suit being so set down for hearing upon all the defendants thereto. 135- If the plaintifi" does not set down the suit for hearing within seven days after a joinder of issue, any defendant may set down the suit for hearing, within like periods as hereinbefore provided for setting down by the plaintiff, and shall forthwith serve on the plaintiff and the other defen- dants notice thereof. See notes to R. 119. RULES OF COURT. 151 HEARING— EVIDENCE. I. — Generally. II. — Evidence by Commission. III. — Trial by Jury. I.— GENERALLY. 136. Suits which are to be treated as Consent Matters or as Short Matters, or in which the defendant ought to attend in Court in pursuance of the endorsement on the statement of claim, shall be set down for hearing on such days as the Court may specially appoint for the hearing of such matters and suits. The expressions "consent matters" and "short matters" as applied to causes, are to be regretted, as confusing the distinction between causes and matters which has always hitherto been observed in legal terminology. See s. 17 of the Act, and RR. 62, 137, 138. Consent matters mean suits in which the terms of the decree have been agreed. See next R. Suits within this R. are to be taken on certificate of plaintiff's counsel that the cause is fit to be heard as a short matter. In giving these certificates the English practice is to be followed {Penny v. Slough, 5 N.S.W.R. Eq. 80). As to " short matters," the English practice has been that when a cause involves no question of difficulty, and is not likely to take up much time in argument — not more than ten minutes as a rule (Anon., 17 Jur. 435) — or is such that the subject matter of it would authorise the Court to make a decree as of course, it may be heard as a short cause amongst the short causes, for the hearing of which one day in each week is appointed. To obtain this privilege, there must be a certificate — which, however, in one case (Hargraves v. White, 17 Jur. 436) was dispensed with — from the counsel of the plaintiff that the cause is fit to be heard 152 RULES OF- COURT. as a short cause, but the consent of the solicitors for any of the defendants will not be required. Upon the production of such certificate to the proper officer, he will mark the cause as " short " in the cause book. The plaintiff, thus advancing a cause, proceeds at his peril ; and if, on the cause coming on, it appears that it is not one which is entitled to be so advanced, the costs occasioned by the advancement will have to be paid by the plaintiff {Daniell, Ch. Pr. 5th ed. 685). 137. If the parties to any suit have agreed upon the terms of the decree to be asked from the Court, the suit may come on to be heard on any day after it has been set down that may be appointed for hearing Consent Matters. 138. Any suit may, by the consent of the parties thereto, or by order made with notice in Chambers on summons, come on to be heard as a Short Matter upon any day after it has been set down that may be appointed for hearing such matters, or that the parties may agree upon and the Court may order. There are many cases in which a defendant, at first hostile, becomes reasonable and willing to take a speedy decision of the Court : these cases are met by this R., which enables suits to be heard " short " by consent. The words, " or by order made with notice in Chambers," are difficult. They apparently contemplate an order being made against the will of the defendant for the hearing of a suit " short." But such an order would be unnecessary, for the plaintiff may himself set down the suit to be heard "short" without the defendant's consent: see notes to R. 136. 139. If the plaintiff refers to the statement of defence or any part of it as evidence in support of his case, the Judge shall take a note of such reference ; and the plaintiff shall not enter into evidence as to such matters as are established by such reference ; and, if he enters into evidence as to them, he will render himself liable to pay the costs thereof. EULES OF COURT. 153 This R. is, in theory, only a corollary to section 20 of the Act, but, in practice, it may put the plaintiff in a difficulty, unless it is leniently applied by the Court. Of course, where there is a clear admission in the defence of any particular fact, no plaintiff would be justified in adducing evidence of such fact ; but, as will be seen from the cases cited in the notes to R. 103, there are cases in which it is very difficult to say whether the expressions used in the defence amount to any and what admissions of the plaintiffs allegations, and in such cases it would not be prudent in a plaintiff to let the suit go to a hearing without evidence of his own in support of that part of his case ; the Court may, however, be of opinion that the defendant's expressions, did in fact amount to admissions sufficient for the plaintiff's purpose. It is presumed that in such cases of reasonable doubt, a- plaintiff will not in any event be made to pay the costs of the evidence so adduced by him. Not improbably this R. will remain a dead letter. A plaintiff may read a passage from a statement of defence without reading the whole of the paragraph containing such passage {Bourke v. Wright, 4 N.S.W.R. Eq. 9). 140. The Court or any party may, before, or at any time during, the hearing of a suit, require the evidence or judg- ment to be taken down by a shorthand writer, who shall be duly sworn ; but it shall not be necessary for the witnesses to sign the notes of their evidence ; and the Court may make such order as it shall think fit for the costs of employing such shorthand writer. The Judge's notes, or the notes of such shorthand writer, shall for all the purposes of the suit be 'priwA facie proof of the evidence of the deposition of witnesses. As to shorthand notes, see s. 31 of the Act, and In re Gurney Brick Co., Barker's case, 11 N.S.W.R. Eq. 301, Brown v. McEncroe, 12 N.S.W.R. Eq. 93, and cf. R. 199. 11.— EVIDENCE 'BV" COMMISSION. 141. Where any party has obtained a commission for the examination of witnesses, he shall, unless the Court other- 154 RULES OF COURT. wise direct, cause notice of the time and place of such examination to be served on the parties entitled to notice seven days at least before the day of examination; and every such commission shall be returnable on some day to be fixed in each case by the Court, and shall, with the exami- nation of witnesses under the same, be returned to the Equity Office in like manner as statements of defence taken in the country are returnable. See R. 11. III.— TRIAL BY JURY. 142. Any question of fact, or any question of the amount of damages, directed to be tried by a jury, shall be reduced into writing in the form set forth in Schedule E to these Rules, and shall be called the " Record for Trial," and shall be filed in the Equity Office within two days after such order shall have been made, and within seven days after such filing shall be entered for trial at such time and place and in such manner as the Court shall direct. This R. is taken, with some alterations, from Cons. Ord. XLI., r. 26. Two and seven days are substituted for three and three days respectively, and the entry for trial, instead of being specially provided for, is to be " as the Court shall direct,'' rendering an application for directions necessary, at least in all cases where the practice at law (see next R.) does not sufficiently indicate the course to be pursued. As to trial by jury, see ss, 32-38 of the Act. 143- When the Court shall order any question of fact, or any question of the amount of damages, to be tried bv a jury, the course of proceedings shall be in all respects in accordance with the law and practice as to trial of issue and assessments of damages at Common Law. RULES OF COURT. 155 144. The notice of any application for a new trial shall be given within eight days after the verdict or finding of the jury shall have been filed, or within such other time as the Court may direct. 145. Where the Court shall decree damages to any person, and shall order the amount of such damages to be assessed by a jury before any Judge of the Supreme Court, or in any Circuit Court, the person to whom such damages shall be decreed shall be at liberty to sue out from the Equity Office a writ of inquiry of damages. See s. 37 of the Act. 146. The Rules now in force in the Courts of Common Law relative to writs of inquiry and trials shall be applicable to writs of inquiry to be issued by virtue of the last preceding Rule. 147. The writ of inquiry, together with the return thereto of the verdict or inquisition, shall within seven days after such return be filed at the Equity Office, or within such other time as the Court shall allow. 148. Any application to set aside the verdict or inquisition on any such writ of inquiry, and to direct a new inquiry, shall be made within eight days after the finding thereof, or within such other time as the Court shall allow. 149- On the day appointed for any trial, and previously to the commencement thereof, a copy of the Record for Trial, together with a copy of the statement of claim, statement of defence, and other pleadings, shall be left with the Judge before whom such trial is appointed to be had by the person at whose instance the same may have been entered for trial. 156 RULES OF COURT. 160. The verdict or finding of the jury, together with the names of the jurors who were sworn, shall be endorsed by the associate of the Judge before whom the trial has taken place on the Record for Trial, and shall be signed by him and then returned to the Equity Office to be filed. And the Judge may certify whether he is satisfied or otherwise with such verdict or finding of the jury. AMENDMENT OF PLEADINGS. 151. The Court may, at any stage of the proceedings, allow either party to alter his statement o£ claim, or defence, or reply, or may order to be struck out or amended any matter in such pleadings respectively as may be scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the cause ; and all such amendments shall be made as may be necessary for the purpose of determiniug the real questions or question in controversy between the parties. This R. is taken from O. XXVII., r. 1, 1875 [O. XXVIII., r. 1, 1883]. See ss. 6, 16, 20, 24 of the Act and R. 58. The Full Court has all the powers and duties of the Judge as to amendment (s. 73). The application should be on summons, and the costs will in general be paid by the party in the wrong {Marriott v. Marriott, 26 W.R. 416, and see s. 62 of the Act). Scandalous matter was, of course, constantly struck out under the old system ; but charges and statements which would not have been improper under that system may nevertheless be struck out under the present system ( Watson v. Bodwell, 3 CD. 380; Knowles V. Boberts, 38 CD. 270). Improper pleadings ought to be struck out, and not left to be dealt with as a question of costs ( Watsoti V. Bodwell, uhi supra). In an action for the recovery of land, of which the plaintiff has never been in possession, a general allega- tion in the statement of claim that by assurances, wills, documents, RULES OF COURT. 157 and Crown grants in the "possession of the defendant — without stating their nature or further describing them— the plaintiff is entitled to the land (Philipps v. Fhilipps, 4 Q.B.D. 127) ; a statement of claim, parts of which are unintelligible, other parts irrelevant, while other parts contain offensive charges (Gashin v. Oradoch, 3 CD. 376); a statemeat of claim stating immaterial facts, and setting out at great length documents which could not be material except as evidence by wayof admission {Davy v. Garrett, 7 C. D. 473) ; a claim in which the vendor of goods and the indorsees of a bill given by the purchaser to the vendor for the price jointly sue the purchaser to recover the price and also upon the dishonoured bill (Smith v. Richardson, 4 O.P.D. 112); state- ments in pleading which are not demurrers, but allege only matters of law that might be raised by demurrer (StohesY. Grant, 4 C.P.D. 25) ; a reply which refers to an independent document, such as plaintiff's answer to interrogatories, as containing facts on which the pleading relies, without setting out such document itself as part of the reply — or which sets up new claims — or which pleads mere evidence or argument, or states conclusions of law to be drawn or inferred from the facts pleaded ( Williamson v. L. & N.W.R. Co., 12 CD. 787); the omission, in a suit to restrain the obstruction of an alleged private right of way, to show on the statemeat of claim whether the plaintiff claims the right by prescription or grant, and to allege with reasonable certainty the termini of the way and its course {Harris v. Jenkins, 22 CD. 481 ; Spedding v. Fitzpatrich, 38 CD. 413) ; all these have been held embarrassing, and liable to be struck out or compulsorily amended. Oompaie Berdan v. Greenwood, 3 Ex. D. 251 ; Hea/p V. Harris, 2 Q.B.D. 630; Thorp v. Holdsworth, 3 CD. 637; Hawhesley v. Bradshaw, 5 Q.B.D. 22, 302 ; Whitney v. Moignard, 24 Q.B.D. 630. The striking out of pleadings as embarrassing was at first said to be so much a matter in the discretion of the Judge that, where he had exercised his discretion, the Court of Appeal would not, as a general rule, interfere, unless he had acted on a wrong principle (Golding v. Wha/rton Saltworks Co., 1 Q.B.D. 374 ; Watson v. Rodwell, 3 CD. 380) ; but the weight of these cases has been shaken by the decision that it is the duty of the Appeal Court to exercise its own discretion as to whether a pleading is so framed as to embarrass the opposite party, and that Court has struck out a pleading, though a motion for that purpose had been dismissed 158 RULES OF COURT. with costs by the Court below, and no question of wrong principle was involved, James, L.J., saying a defendant may claim ex dehito justitim to have the plaintiff's case presented in an intelligible form, so that he may not be embarrassed in meeting it, and that the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery {Davy v. Garrett, 7 CD. 473). The parties may make all such amendments as may be necessary to ascertain and place upon record the true issue or issues to be determined by the Court, but not so as to make a new case, or set up a different issue to that raised in the original pleadings, jier Owen, C.J. Eq. {Dihhs v. Dibhs, 9 N.S.W.R. Eq. 169). As to when amendments should be allowed, see A.S.N. Co. v. Smith, 14 App. Cas. 320; Cropper v. Smith, 26 CD. 700; Hipgrave v. Case, 28 CD. 360 ; Steward v. North, &c., Tramways, 16 Q.B.D. 556 ; Riding v. Hawkins, 14 P.D. 59 ; Griffiths V. London, &c.. Docks, 13 Q.B.D. 259 ; Kurtz v. Spence, 36 CD. 774. Leave to amend refused : Edevain v. Cohen, 41 CD. 563, 43 CD. 187 ; Wood v. Durham, 21 Q.B.D. 501 ; Lowther v. Heaver, 41 CD. 248 ; Lawrance v. Norreys, 39 CD. 213; Moss v. Malings, 33 CD. 603. A motion to amend a statement of claim by the substitution of plaintiffs was dismissed with costs {Cowan & Co. v. Spalding, 3 N.S.W. W.N. 112). In that case the plaintiffs, creditors of a certain company, had brought a suit to have a bill of sale, given by the company to the defendants, also creditors of the company, declared void on the ground of fraudulent preference. Subse- quently to defendant's appearance in the suit on the plaintiffs' petition for the winding-up of the company, M. was appointed oflScial liquidator. Defendant had hied his statement of defence. The object of the motion was to substitute M.'s name for that of the plaintiffs on the record. 152. The plaintiff may, without any leave, amend his statement of claim once at any time before the expiration of the time limited for reply and before replying, or, where no defence is filed, at any time before the expiration of four RULES OF COURT. 159 weeks from the appearance of the defendant who shall have last appeared. This K corresponds with 0. XXVII., r. 2, 1875 [O.XXVIIL, r. 2, 1883], with the substitution of " filed " for " delivered." The time limited for reply is two weeks from delivery of defence, R. 105. While a demurrer is pending no amendment can be made,, without leave, R. 88. 153. A defendant who has set up in his defence any set-off or counter claim may, without any leave, amend such set-oif or counter claim at any time before the expiration of the time allowed him for pleading to the reply, and before pleading thereto, or, in case there be no reply, then at any time before the expiration of twenty-one days from the filing of his defence. This R. corresponds with O. XXVII., r. 3, 1875 [O. XXVIII., r. 3, 1883], "twenty-eight" being substituted for "twenty-one days." As to pleading to reply, see R. 107. 154. When any party has amended his pleading under either of the last two preceding Rules, the opposite party may, within eight days after the filing of the amended pleading, apply to the Court to disallow the amendment, or any part thereof, and the Court may, if satisfied that the justice of the case requires it, disallow the same or allow it, subject to such terms as to costs or otherwise as may seem just. This R. corresponds with O. XXVII., r. 4, 1875 [O. XXVIII., r. 4, 1883]. 1 55 Where any party has amended his pleading under Rules 153 or 154, the opposite party shall plead to the 160 RULES OF COURT. amended pleading, or amend his pleading within the time he then has to plead, or within eight days from the delivery of the amendment whichever shall last expire, and, in ease the opposite party has pleaded before the delivery of the amendment, and does not plead again, or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment. This H. corresponds with 0. XXVIII., r. 5 (1883). See Powell V. Jewesbury, 9 CD. 34. 156. In all cases not hereinbefore otherwise provided for, application for leave to amend any pleading may be made by either party to the Court, and either before or at ' the trial of the cause, and such amendment may be allowed upon such terms as to costs or otherwise as may seem just. This R. is taken from O. XXVIII., r. 6 (1883). 157. If a party who has obtained an order for leave to amend a pleading filed by him does not amend the same within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days as the case may be, become ipso facto void, unless the time be extended by the Court. This R. corresponds with O. XXVII., r. 7, 1875 [0. XXVIII., r. 7, 1883]. 158. Whenever any pleading is amended, such pleading when amended shall be marked with the date of the order, if any, under which the same is so amended, and of the day on which such amendment is made, in manner following, viz. : — " Amended day of ." RULES OF COURT. 161 This R. corresponds with O. XXVII., r. 9, 1875 [0. XXVIII., r. 10, 1883]. 159. Whenever a party has obtained leave to amend any- pleading, and the amendments are so inconsiderable that no re-engrossment is required, he shall thereupon give notice to the opposite party of such amendments, and the copy of such pleading when so amended (or, if the amendment be of such a nature as to require a new engrossment, then a copy of such new engrossment) shall at the time such amendment is made or a new engrossment filed (if requiring no new appearance), be served on the solicitor of the opposite party. But if a new appearance be required, the amended attested copy or an attested copy of the new engrossment shall be served on the opposite party, together with the indorsements thereon. EEVIVOR AND SUPPLEMENT. 160. Any person under no disability, or under the disability of coverture only, who may be served with an order under the 59th section of the Equity Act of 1880 to revive any suit or carry on the proceedings therein, may apply to the Court to discharge such order within twelve days after such service; and any person being under any disability other than coverture who may be so served may apply to the Court to discharge such order within twelve days after the appointment of a guardian or guardians ad litem for such person ; and, until such period of twelve days shall have expired, such order shall have no force or eifect as against such last mentioned person. This R. corresponds with Cons. Ord. XXXII., r. 1. See s. 59 of the Act. 5 162 RULES OF COURT. 161. Where any suit shall not be in such a state as to allow of an amendment being made in the statement of claim, the plaintiff may state any facts or circumstances which have occurred after the institution of the suit by filing in the Equity Office a written statement, to be annexed to the statement of claim, and such proceedings by way of defence, evidence, and otherwise, shall be had and taken upon the statement so filed as if the same were embodied in a supplemental statement of claim : Provided that the Court may make any order which it shall think fit for accelerating the proceedings in any manner which may appear just. This R. is taken mutatis mutandis, from Cons. Ord. XXXII., r. 2. See s. 60 of the Act. As to amendment, see ER. 151-159. 162. It shall not be necessary in any statement of claim to revive a suit, or in any supplemental statement of claim, to set forth any of the statements in the original pleadings, unless the special circumstances of the case may so require. This R. corresponds with Cons. Ord. XXXII., r. 3. The R. does not dispense with the necessity of stating, in a claim to revive, so much of the pleadings in the original suit as is sufficient to show the title of the plaintiff as against the defendant to revive the suit. If the statements in the claim to revive do not show a title to revive, the plaintiff cannot on demurrer supply the defect by reading the record of the original statement of claim, although that record be referred to in the claim to revive. The title to revive the suit against the defendant is not shown by the mere statement that such defendant is the representative of a party who put in a defence to the original Statement of claim {Chiffithv. Ricketts, 3 Ha. 476; and see Anderson v. Wallis, 6 Jur. 906). RULES OF COURT. 163 163. When a suit abates before decree by the death of a sole plaintiff, any defendant inay either take the proceedings necessary to revive the suit, as in the case of such abatement after decree, or may apply to the Court, upon motion on notice served on the legal representative of the deceased plaintiff, that such legal representative do revive the suit within a limited time, or that the suit be dismissed against such defendant. With the exception of the -words italicised in the text (which constitute a departure from the old practice in England under the Cons. Ords.), this R. corresponds with Cons. Ord. XXXII., r. 4. The executors and devisees in trust of a deceased defendant may make the application {Norton v. White, 2 De G.M. & G. 678). Where a sole plaintiff in an administration suit died, an order of course to revive was made on the application of a person who had been served with notice of the decree, and had obtained liberty to attend the proceedings {Burstall v. Fearon, W.N. 1883, 99). On the death of one of several co-plaintiffs, it was ordered that the survivors should revive within a limited time or that the bill should be dismissed, notwithstanding that there should be no legal personal representative, it being their duty to obtain administra- tion {Saner v. Deaven, 1 6 Beav. 30 ; Adamson v. Hall, T. & R. 258 ; Hinde v. Morton, 2 H. & M. 368 ; Holcombe v. Trotter, 1 Coll. 654). DECREES AND ORDERS. 164. The party who has the carriage of any decree or order shall, within ten clear days of the same being pro- nounced, or within such further time as the Court shall direct, lodge the minutes of the same in the Equity Office, and take out an appointment to proceed therein. See RR. 166, 167. 165. Where in any suit a set-off or counter claim is established as a defence against the plaintiffs claim, the 164 RULES OF COURT. Court may, if the balance is in favour of the defendant, make a decree for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case. This R. corresponds with 0. XXII., r. 10, 1875 [0. XXI., r. 17, 1883]. See ss. 21, 22 of the Act. 166- Two clear days' notice shall be given of any appoint- ment to settle minutes, provided that in cases of emergency the summons may be made returnable immediately. 1 67. Draft minutes of the decree or order shall be left in the Equity OfEce on taking out an appointment to settle the same. 168. The Court or Master may, in any case in which it may be considered expedient so to do, settle and pass the decree or order without making any appointment so to do, and without notice to any party. This R. gives extraordinary powers, which, it is presumed, will seldom be invoked. 1 69. No decree or order shall be drawn up without the leave of the Court after six months from when it shall have been pronounced. An ex parte application made under this R. was refused, there having in the meantime been an assignment of the subject matter of the rule, in Plummer v. Logan, 3 N.S.W. W.N. 73. 1 70. In drawing up any decree or order it shall not be necessary to recite any pleading or document in full, but a short reference thereto shall be sufficient, unless the Court or Master shall otherwise direct. RULES OF COURT. 165 This R. is a condensation of part of Cons. Ord. XXIII., r. 2. The Master, in drawing up any order, may introduce such alterations as from his experience he believes the Court would sanction (Davenport v. Stafford, 8 Beav. 503 ; Margrave v. Hargrave, 3 Mac. & G. 348). 171. Where any sums of money or any securities or other effects belonging to the suitors of the Court are directed to be paid into or deposited in Court in any suit or matter, or to be paid out or invested ; or where any stock, funds, shares, or moneys are directed to be transferred into the name and with the privity of theMaster, or to be transferred out of Court, carried over, or delivered out— the exact sum of money, the amount of the stock, funds, shares, or securities, and the particulars of the effects so to be paid in, transferred, or deposited, or so to be paid out, invested, transferred out, carried over, or delivered out, shall be ascertained and specified and expressed in the decree or order in words written at length; except in the case of residues or shares of residues remaining after a portion directed to be applied for particular purposes, the amount of which cannot be ascertained at the time of making the decree or order ; in which cases the amount of such residues or shares of residues shall be verified by affidavit, without any direction for that purpose in the decree or order, unless such residues or shares shall be certified by the Master, who shall be at liberty to certify the same without a direction for that purpose in such decree or order. This R. is taken from Cons. Ord. XXIII., r. 3. The direction contained in this R. to specify the amount to be paid out, &c., applies to those cases only in which the amount to be paid out, &c., can be ascertained at the time when the order for payment, &o., is made (Piggott v. Garraway, 9 Sim. 260). As to the investment of money, &c., see R. 259. 166 RULES OF COURT. 1 72. Where a residue of stock, funds, shares, or securities or moneys, is directed by any decree or order to be operated upon by the Master, the exact amount of such residue, where the same can be done, shall, on settlement of the minutes, be verified by affidavit or otherwise, and shall be expressed and specified in the decree or order in words at length, so that the amount of such residue may appear on the face of the decree or order. This R. is taken from Cons. Ord. XXIII., r. 4, except that the verification by affidavit, where the case admits of it, is here made peremptory, instead of being, as in the English r., only necessary where required by the Registrar. 173- All persons, whether representatives or others, who are directed to pay into or deposit in Court any sum of money, securities, or other effects with the privity of the Master, or to transfer any stock, funds, shares, or moneys, into his name and with his privity ; and all persons, whether representatives or others, to whom any sums of money, stock, funds, shares, securities, or other efiects are directed to be paid out, transferred, carried over, or delivered out, shall, except in the case of bodies corporate, companies, or societies, be described by name in the decree or order, and not merely as plaintiffs or petitioners or the like, unless such payments, transfers, carryings over, or deliveries, are directed to be made to or by representatives, and no probate or letters of administration shall have been taken out at the time of making such decree or order ; and the Christian names and surnames or titles of honour of all such persons, and the titles of all such bodies corporate, companies, and societies shall be written at length and without abbreviation in such decrees or order. This R. is taken from Cons. Ord. XXIII., r. 5. See ER. 269, 271, 273. RULES OF COURT. 167 17 4!. In all decrees or orders directing the payment of interest, dividends, annuities, or other periodical payments, the time when the first of such payments, and when all subsequent periodical payments, whether quarterly, half- yearly, yearly, or otherwise, shall be made, shall be specified and expressed in words at length : and, where the same has not been so specified and expressed, then the respective payments shall be made yearly. Except as regards the words italicised in the text (which have been added), this R. is taken from Cons. Ord. XXIII., r. 6. See RR. 267, 273 (c). 175. Where any stock, funds, shares, or securities standing in the name of the Master in trust in, or to the credit of, any suit, matter, or account, or any part thereof, are or is directed to be divided and transferred or delivered out of Court to or among several persons, or to be carried over to several separate accounts, and where any money is directed to be paid out to or among several persons, or carried over to several separate accounts, the Master shall be at liberty, where it shall appear to him to be more convenient so to do, to state the respective amounts of such stock, funds, shares, securities, or money to be so transferred, paid, or carried over, in a schedule at the foot of the decree or order, and it shall be sufficient to refer to such schedule in the mandatory part of the decree or order ; but in every such case the total amount of the stock, funds, shares, securities, or money respectively to be dealt with in such schedule, shall be stated in words at length in the mandatory part of the decree or order. This R. is taken from Cons. Ord. XXIII., r. 7. 176. Where upon or after the death of any person to whom the interest or dividends of any stock, funds, shares, 168 RULES OF COURT. securities, or money standing in the name of the Master in trust in, or to the credit of, any suit, matter, or account, or any part of such interest or dividends were or was payable for life, an order is made for the sale, transfer, or delivery or payment, of such stock, funds, shares, securities, or moneys, or for the payment of the interest or dividends to accrue due thereon subsequently to the death of such person, the same order shall also provide for the payment to the legal personal representative of such person of such proportion of the interest or dividends on such stock, funds, shares, securities, or moneys, as shall have accrued between the last period of payment and the day of his death, unless the Court shall be of opinion that such legal personal represen- tatives are not entitled thereto, or shall for any other reason otherwise direct. This R. is taken from Cons. Ord. XXIII., r. 8. See RR. 269, 271, 272. 177. Every decree or order made in any suit or matter requiring any person to do an act thereby ordered shall state the time or the time after service of the decree or order within which the act is to be done ; and upon the copy of the decree or order, which shall be served upon the person required to obey the same, there shall be endorsed a memorandum in the words or to the effect following, viz. : — " If you the within-named A.B. neglect to obey this Decree (or Order) by the time therein limited, you will be liable to be arrested under a Writ of Attachment issued out of the Supreme Court, and also be liable to have your estate sequestrated for the purpose of compelling you to obey the same Decree (or Order)." And in any case where money only has to he paid to any person, then the memorandwm, shall he to the effect following : — " If you the within-named RULES OF COURT. 169 A.B. neglect to obey this Decree (or Order) by the time therein limited, a Writ of fieri facias m,ay be issued against you to levy upon your goods and chattels and lands and tenements and also you will be liable to have your estate sequestrated for the purpose of compelling you to obey the same Decree (or Order)." With the exception of the words italicised in the text (which have been added), this R. is taken from Cons. Ord. XXIII., r. 10. Where a decree has been drawn up without fixing a time within which an act is to be done, the decree is not rendered ineffectual, but the Court will, on motionj fix a time for the performance of the act {Needhcmi v. Needham, 1 Ha. 633). 178. Where a defendant, at the hearing, objects that a suit is defective for want of parties, and has not, by plea or statement of defence, taken the objection, and therein specified by name or description the parties to whom the objection applies, the Court, if it shall think fit, mMy add the parties upon such terms as to costs or otherwise as may be deemed just, or may make a decree saving the rights of such parties. With the exception of the words italicised in the text (which have been added), this R, is taken from Cons. Ord. XXIII., r. 11. Under this R., decrees have been made in the absence, and saving the rights, of a mortgagee {Feltham v. Clark, 1 De G. & Sm. 307), the assignees of a bankrupt {Mayheryv. Brooking, 7 De G. M. & G. 673), the heir-at-law of the survivor of trustees, and the personal representative {Faulkner v. Daniel, 3 Ha. 199), and a person entitled in a remote contingency (Daubuz v. Peel, 1 Coop. R. t. Cottenham, 365) ; but decrees will not be made under this R. in the absence of a female plaintiff's husband {Russell Y. Lucey, 18 L.J. Ch. 464), nor, in a suit to execute the trusts of a creditor's deed, in the absence of the person who created the trust {Kimber v. Ensworth, 1 Ha. 293). The object of the R. was to remove a difficulty which often arose at the 170 RULES OF COURT. hearing of a cause, from objections for want of parties being taken by defendants, when the objections had not been suggested by the answer, and the rights of the absent party would be as well protected by the decree of the Court as if he were present, or at all events those rights could not be prejudiced by a decree made in his absence. It was not contemplated that the Court would ever exercise the powers which the order gave in a manner which would be prejudicial to an absent party (perWigram, V.C, S.C, 295). Where a suit involved a question in which the children of the plaintiff were interested, and a child was born after the bill was filed, the Court, on the objection taken at the hearing, ordered the cause to stand over, with liberty to amend by bringing the child born since the institution of the suit before the Court (Leyland v. Leyland, 10 W.R. 149). At the hearing, a suit was found defective for want of parties, and was ordered to stand over, with liberty to amend by adding parties. When brought on a second time, it was still defective for want of parties. The Court dismissed it against all the defendants (Williams v. Page, 28 Beav. 148). Compare R. 311 and ss. 7 and 8 of the Act. 1 79. If the plaintiff, after the suit is set down to be heard, causes the statement of claim to be dismissed on his own application, or if the suit is called on to be tried or heard in Court and the plaintiff makes default, and by reason thereof the statemeni) of claim is dismissed, such dismissal, unless the Court shall otherwise direct, shall be equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter. This E. is taken from Cons. Ord. XXIII., r. 13. By 0. XXXVI., r. 19 (1875), if, when an action is called on for trial, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but, if he has a counter-claim, then he may prove such claim so far as the burden of proof lies upon him; by r. 20 of the same 0., any verdict or judgment RULES OF COURT. 171 obtained where one party does not appear at the trial may be set aside by the Court or a Judge upon such terms as may seem fit, upon an application made within six days after the trial. These rr. are, it is submitted, imported into the Colonial practice by virtue of R. VI. ; but, if not, yet they wUl probably be adopted by the Court as providing a reasonable practice. Under r. 20 {supra), the English Courts will, on a case being shown, readily set aside a judgment obtained in absentem, on payment by the party in default of the actual costs of the day when the action was called on and of the application to restore {Cockle v. Joyce, 7 CD. 56; Wright v. Clifford, 26 W.R. 369), including all costs thrown away {King v. Sandeman, 26 W.R. 569 ; compare Burgdne v Taylor, 9 CD. 1). In one case the solicitor through whose oversight the dismissal was caused had to pay the costs {Birch v. Williams, 24 W.R. 700). Where the plaintiff's absence at the trial is caused by the default of his solicitor, the time for applying to set aside the judgment will be enlarged {Michel v. Wilson, 25 W.B. 380 ; see Attwood v. Chichester, 3 Q.B.D. 722). 180. Every decree or order for an account of the estate of a testator or intestate shall, unless the Court shall other- wise direct, contain a direction for an inquiry as to what parts (if any) of such estate are outstanding or undisposed of. This R. is taken from Cons. Ord. XXIII., r. 14. 181. Notice of a decree or order served pursuant to the 6th rule of the 7th section of the Equity Act of 1880 shall be entitled in the suit, and there shall be indorsed a memoran- dum in the form or to the effect following, that is to say : — "Take notice, that from the time of the service of this notice, you \or, as the case may be, the infant, or person of unsound mind] will be bound by the proceedings in the above suit in the same manner as if you [or the said infant or person of unsound mind] had been originally made a party to the suit ; and that you [or the said infant or person of unsound 172 RULES OF COURT. ' mind] are at liberty to attend the proceedings under the within mentioned Decree [or Order] ; and that you [or the said infant or person of unsound mind] may, within one month after the service of this notice, apply to the Court to add to the Decree [or Order]." This R. is taken from Cons. Ord. XXIIL, r. 20. See R. 50. Mere liberty to attend the proceedings does not entitle the parties having the liberty to the costs of their attendance in Chambers as a matter of course. In order to entitle such parties to such costs, the order giving the liberty to attend should expressly provide that they are to be entitled thereto (Day v. Bati]/, 21 CD. 830; and see Sharp v. Lush, 10 CD. 468). 182. A memorandum of the servibe upon any person of notice of the decree in any suit under the 6th Rule of the same section shall be entered in the Equity Office, upon due proof by affidavit of such service. This R. corresponds with Cons. Ord. XXIII., r. 19. 183- The time within which a party served with notice of a decree under the 6th Rule of the same section may apply to the Court to add to the decree shall be one month after such service, unless the Court shall extend the time or shall otherwise direct. With the exception of the words italicised in the text (which have been added), this R. is taken from Cons. Ord. XXIII., r. 18. 184. Clerical mistakes in decrees or orders, or errors arising from any accidental slip or omission, may at any time be corrected upon summons in Chambers. Except that a summons is substituted for a motion or petition, this R. corresponds with Cons. Ord. XXIII., r. 21. RULES OF COURT. 173 185. Where any person who has obtained any decree or order upon condition does not conform or comply with such condition, he shall be considered to have waived or abandoned such decree 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 decree or order may in such case warrant, or such proceedings as might have been taken, if no such decree or order had been made, unless the Court shall otherwise direct. This R. is taken from Cons. Ord. XXIII., r. 22. ORDERS ON FURTHER DIRECTIONS. 186. When any suit shall, at the original or any subsequent hearing thereof, have been adjourned for further considera- tion, the plaintiff or party having the conduct of the suit shall, after the expiration of eight days and within fourteen days from the filing of the certificate of the Master, set *down the suit for hearing on further directions on some day (except by leave of the Court) not earher than the eighth and not later than the fourteenth day after setting down the same, and the plaintiff or party having conduct of the suit shall forthwith serve notice of the suit being so set down upon the defendants or parties thereto other than the party having the conduct of the suit. This R. and the next are taken from Cons. Ord. XXI., r. 10. After the suit is set down for further consideration, notice thereof is forthwith to be served on the other parties to the suit : in the English r. the notice to be given is six days at least. As to " short matters," see RR. 136, 138. Where it is proposed to read, upon further consideration, evidence which has been used in Chambers, notice must be given 174 RULES OF COURT. {Re Chennell, 8 CD. 492 ; and see Re Brier, 26 CD. 242 ; and May V. Newton, 34 CD. 347). See RR. 235-244 as to the Master's certificate. 187. If the plaintiff or other party having the conduct of the suit does not set down the suit for hearing on further directions within fourteen days from the filing of the Master's certificate as aforesaid, any defendant or party having the conduct of the suit may set down the same for such hearing within the periods as hereinbefore provided for setting down by the plaintiff, and shall forthwith serve on the plaintiff or party having the conduct of the suit notice thereof. 188. When any suit is so set down for hearing on further directions as aforesaid, the party so setting down the same shall at the same time lodge in the Master's Office short minutes (omitting formal parts) of the decree or order he deems himself entitled to. I PROCESS TO ENFORCE DECREES AND ORDERS. 189- No writ of attachment, sequestration, or assistance, shall be issued without special order, to be obtained on motion with affidavit of the circumstances of the case ; but it shall not be necessary to serve the person against whom such writ is sought to be issued with notice of the motion. So far as regards notice of an application for attachment, this R. differs from the English practice, according to which [O. XLIV., r. 2 (1883)] no writ of attachment is to be issued without leave, to be applied for on notice to the party against whom the attachment is to be issued. See RR. 20, 177; Dauiell's Ch. Pr. 5th ed. 903-938; Seton 4th ed. 1555-1598. RULES OF COURT. 175 190. If any party directed by an order or decree to pay money (whether money only, or costs only, or money with costs) shall, after due service of such order or decree, neglect to pay the same as thereby directed, the party prosecuting such order or decree shall, at the expiration of the time limited for the performance thereof, be entitled to proceed by writ oi fieri facias for the recovery of the money thereby payable in the manner directed by the Act of 5 Victoria, No. 9, section 43. Provided nevertheless, that an attachment may issue when the decree or order directs the payment of any money into Court. A motion fdr attachment against a defendant, who was bank- rupt, for non-payment of moneys into Court in pursuance of an order of the Court, was ordered to stand over until the defendant had obtained his certificate (Glynn v. Gallagher, 7 N.S.Wi W.N. 79). See R. 177. This E. is compounded of E.R. 3 and 4, and R. 191 is taken from R. 5, Chap. XXIII., of the KS.W. Cons. Standing RR. of 1863. Under these RR. a writ of attachment could not issue for the non-payment of costs (per Windeyer, J., Breden v. Breden, 1 N.S.W.R. Div. 10 ; and per Owen, C.J. Eq., Sachs v. Beav,- mont, 9 N.S.W.R. Eq. 48). The rights of parties and the remedies applied by the Court in ordinary cases, are limited by the practice as laid down in the Rules, and therefore, as the Rules of Court, made in pursuance of the Equity Act of 1880, do not provide for remedy by attachment in case of disobedience of an order for the payment of costs, but provide a remedy of another kind, and as the Court is bound to regulate its practice by those rules which are laid down for the guidance of the Court and of suitors, an order for attachment for disobedience to the order of the Court in not paying costs of an appeal in the suit was discharged iS.C). 191. In respect to the payment of costs, when the amount of such costs shall have been duly taxed and certified, and payment thereof demanded from the party by whom payable 176 BULES OP COURT. or his solicitor, execution shall be issued under a writ of fieri facias upon an affidavit of due demand from the party by whom the same is payable or his solicitor. 192. Every person, not being a party to the suit, who shall have obtained an order, or in whose favour any order shall have been made, shall be entitled to enforce obedience to such order by the same process as if he were a party to the suit ; and every person not being a party to the suit, against whom obedience to any order may be enforced, shall be liable to the same process for disobedience to such order as if he were a party to the suit. This R. is taken from Cons. Ord. XXIX., r. 2. 193. When any party who by any order or decree is ordered to deliver possession of any lands, tenements, or heredita- ments, within a limited time, shall, after due service of such decree or order, refuse or neglect to obey the same, the party prosecuting such order or decree shall (on proof made of demand and refusal to obey the same) be entitled to a writ of assistance or of habere facias. An affidavit in support of an application for a writ of assistance need not show an existirig non-compliance with the order or decree {Webster v. Taylor, 18 Jur. 869). The writ will not be granted to aid a receiver in distraining for rent {White v. Phihbs, S. & So. 88). 194. Where any party who by any order or decree is ordered within a limited time to do some act other than to pay money or deliver possession of lands, tenements, and hereditaments shall, after due service of such order or decree, refuse or neglect to obey the same, according to the exigency thereof, the party prosecuting such order or decree shall, at RULES OF COURT. 177 the expiration of the time so limited, be entitled to a writ of attachment or to a writ for the delivery of any property other than money, lands, tenements, and hereditaments, which shall have been decreed or ordered to be delivered or a writ of sequestration, as the Court may in each case deem to be just. 195. Upon the Sheriff's return of non est inventus to an attachment, the party suing out the same, upon affidavit that due diligence has been used in endeavouring to appre- hend the person, and stating the facts of such endeavour, shall be entitled to a writ of sequestration. APPEALS. 196. Any person intending to appeal to the Full Court from any decree or order under s. 70 of the Equity Act of 1880, shall, within fourteen days next after the pronouncing of the same, or within such extended time as the Court below may have allowed, enter and file in the Equity Office a notice of appeal, signed by one counsel, and setting forth therein the grounds and reasons of and for such appeal ; which notice shall be in a form similar to the form in Schedule F to these rules ; and a copy of such notice of appeal shall, within ten days next after filing the same, or within such extended time as the Court below shall allow, be delivered to each of the Judges of the Supreme Court, and shall within the like time be served upon all parties intended to be served therewith, or their solicitors. See ss. 70 and 72 of the Act, with the notes. The signature of the notice of appeal by one counsel cannot be dispensed with {Sempill v. Campbell, 6 S.C.R. Eq. 1). The same ruling doubtless applies to a cross-notice under the next Eule. 178 RULES OF COURT. An appeal where the notice of appeal was not signed by two counsel as prescribed by the old R. was dismissed with costs {Beid v. Kearney, 4 N.S.W. W.N. 158). 197. The time within which a respondent shall give notice that he intends upon the hearing o£ the appeal to contend that the decision o£ the Court below should be varied or altered shall be fourteen days from service of the appellant's notice of appeal ; and such notice shall be signed by one counsel, and shall specially set forth the grounds and reasons for contending that the decision should be varied or altered. This cross-notice is not compulsory on a respondent (see notes to s. 74 of the Act). Probably, therefore, the direction here given that he shall give the notice within the time limited must be construed only as intimating that, if on the hearing of the appeal he contends for a variation or alteration without having given the notice here prescribed, a special order will be made as to his costs, under the concluding words of s. 74, q.v. Compare Ex parte Bishop, 15 CD. 400. 198. Every appeal shall hereafter be set down for the first day for the hearing of appeals in Equity which shall happen next after the making of the deposit or giving the security required, unless the Court shall otherwise order ; and every appeal not so entered shall be deemed to have been abandoned. As to obtaining the costs of an abandoned appeal, see notes to s. 70 of the Act. An appeal from a decree of the Primary Judge will not be heard unless the decree has been drawn up, passed, and entered. Where the plaintiff appealed from a decree dismissing his bUl with costs but omitted to draw up such decree and get it passed and entered, his appeal was struck out of the paper with costs (presumably of the day only), but allowed to be set down for hearing on a subse- quent day after the decree had been perfected {Rattray v. Blanchard, 6 S.O.R. Eq. 94, 100). EULES OF COURT. 179 199 In appeals to the Full Court, the moving party, unless a Judge otherwise order or allow further time, shall, within twenty-eight days after the filing of the notice of appeal, lodge in the Equity Office seven printed copies of the pleadings (including petition, notice of motion, and summons), the evidence (other than the exhibits), the decree or order appealed from, and the judgment of the Judge on making such decree or order approved by him, and shall, within the like time, also serve a like number of such printed copies on each opposing party, or upon each solicitor, on the record. The notice of appeal should also be printed. As to non-compliance with this rule, see Lion Fire Insurance Co. V. Neild, cited ante, p. 92. 200. All documents of which printed copies are, by the preceding rules, ordered to be lodged, shall be printed upon cream- wove white foolscap folio paper, in pica type, leaded, with an inner margin an inch wide, and an outer margin two inches and a half wide. REFERENCES, INQUIRIES, AND ACCOUNTS. 201. The Court may for the purpose of obtaining the assistance of conveyancing counsel, accountants, merchants, engineers, actuaries, or other scientific persons, under s. 46 of the Equity Act of 1880, refer to any such persons any matter at issue, or arising in the suit, for a report thereon, and may at the time of such reference and from time to time give such directions with relation thereto, as to the Court may seem necessary. See notes to the section of the Aqt here referred to, and R. 235. 180 RULES OF COURT. 202. In case of reference to the Master, he shall enter in a book the names and title of every suit or matter referred to him, and the date and description of every step taken before him, and the attendance or non-attendance of the several parties on each of such steps, so that such book may exhibit the whole course of proceedings which is had before him in each particular suit or matter; and in case of reference to the Deputy Registrar, a similar book shall be kept and entered up by him. 203> Proceedings on reference to the Master shall be by summons or appointment. Such summons may be in the form set forth in Schedule G, and such appointment may be in the form set forth in Schedule H to these Rules. 204. At the time when any summons or appointment is obtained, an entry thereof shall be made in a book called the Summons and Appointment Book, stating the date on which the summons is issued or appointment made, the name of the suit or matter, and by what party, and shortly for what purpose, such summons or appointment is obtained. 205. A list of all matters to be heard, and business to be transacted, before the Master, in pursuance of such summons or appointment, shall be made out and kept exhibited in the Office. 206. When a reference has been made by the Court to settle any decree or order, the Master shall direct what proceedings shall be taken thereunder, and the decree or order so settled shall be submitted to the Court for approval. See ss. 65, 66, 76 of the Act. RULES OP COURT. 181 207. In directing what proceedings shall be taken under any decree or order the Master may direct what parties are entitled to attend future proceedings, the necessary adver- tisements, and which of the several proceedings may be properly going on pari passu, and the manner in which inquiries and accounts are to be prosecuted, and the evidence to be adduced in support thereof; and if the Master shall think it expedient so to do, a certain time or certain times shall be fixed within which the parties are to take any proceedings, and all such directions may afterwards be added to or varied from time to time. See the references given under the last R., and as to costs of attendance in Chambers, the notes to R. 181. 208. Where the party entitled to prosecute a decree or order does not proceed therein within the time fixed or limited for that purpose by the Court or Master, or by any Rule for the time being in force in that behalf, then the Court or Master may, upon the production by any other party, interested either as a party to the suit or as one who has come in and established his claim under the decree or order, of the certificate of the Clerk of the Records in the Equity Office, that the party entitled to prosecute such decree or order has not proceeded therein within such time as aforesaid, commit to such other party the further prose- cution of the said decree or order, and from thenceforth the party making default shall not be at liberty to attend as prosecutor of the said decree or order, and the certificate shall be indorsed accordingly, and such indorsement shall be signed by the Master. The prosecution of a decree in a creditor's suit having been taken from the plaintiff, and committed to another creditor, the plaintiff's solicitor was ordered to allow the other creditor's 182 RULES OF COURT. solicitor to inspect and talce copies of all the papers in the cause in his possession {Bennett v. Baxter, 10 Sim. 417). 209- Where by any decree or order of the Court books, papers or writings are directed to be produced before the Master for the purposes of such decree or order, it shall be in the discretion of the Master to determine what books, papers, or writings are to be produced, and when and for how long they are to be left in the office ; or, in case he shall not deem it necessary that such books, papers, or writings should be left in the office, then he may give directions for the inspection thereof by the parties requiring the same, at such time and in such manner as he shall deem expedient. Z\0- The Master may of his own motion part with the custody of any exhibits put in evidence in the course of taking any accounts or making any inquiry before him. 211. No more than one summons or appointment shall be taken out for the time during which the Master shall continue or adjourn the proceedings under such summons or appointment. 212. Every summons or appointment before the Master shall be considered peremptory, and in case the Master shall not be attended by the solicitor or a competent person on behalf of the solicitor of any party, the Master shall in such case disallow the usual fee for the solicitor's attendance, and he shall mark such determination in his book. 213. Where some or one, but not all the parties, shall attend the Master at an appointed time, whether the same be fixed by the Master personally or upon summons or RULES OF COURT. 183 appointment, then the Master shall be at liberty to proceed ex 'parte if he thinks proper, considering the nature of the case, so to do. 214;. When the Master has proceeded ex parte, such proceeding shall not be reviewed by him unless he shall, upon special application made to him for that purpose by the party who was absent, be satisfied that the party was not guilty of wilful delay or negligence. Compare R. 216. 215. Upon any application made by any person to the Court in the course of a reference, the Master, if required by the person making the application, shall, in as short a manner as he conveniently can, certify to the Court the several proceedings which shall have been had in the ofiice in the same suit or matter, and the dates thereof. Compare E. 238. But, when the Master refuses to carry out a reference, there is no necessity for a certificate of his refusal before applying for an order directing him to proceed (Hellyer v. Druitt, 7 S.C.R. Eq. 26). 216- Unless ordered by the Court, no summons to review before the Master any proceedings taken before him shall be allowed, except by his permission upon special grounds. Compare E. 214. 217. All aflttdavits and evidence which have been previously made or taken and read in Court upon any proceeding in a suit or matter may be used before the Master in all references to and proceedings before him ; and, where any other or further evidence may be required, it shall be lawful for the Master to take such evidence as he shall think fit: Provided 184 RULES OF COURT. that, if it shall be thought necessary to examine a witness who has given evidence at the hearing as to matters upon which he shall have been examined before, then, in case of objection, an order of the Court shall be obtained for that purpose. The admission of further evidence in Chambers by a party who has already given evidence at the hearing may in many cases be dangerous, as affording him an opportunity of maid fide qualifying or contradicting his previous testimony. See notes to s. 73 of the Act, as to the admission of further evidence on appeals. Cf. R. 222. 218. Every summons or appointment to proceed upon any matter before the Master shall be issued and served two clear days before the time fixed, and, upon any proceeding whereon evidence is to be given, the Master shall be at liberty to direct, from time to time, that evidence shall be taken separately upon any selected point or points, and the evidence shall be taken accordingly. 219. All proceedings on which the Master's decision shall have to be endorsed shall be left in the office before taking evidence thereon; but they shall not be filed until his decision shall have been endorsed thereon, and no such matters shall be withdrawn, added to, or altered without his authority, or under an order of Court, or by consent. 220. The Master shall be at liberty to direct that service of any summons, document, or other matter formerly used to be served on any person, shall be dispensed with. It is presumed that the Master will exercise the liberty here given him only in very special circumstances. 221. No affidavit shall ordinarily be made of any sum- mons, appointment, document, or other matter requiring RULES OP COURT. 185 service thereof; to be shown to the Master ; but the Master may take proof thereof when requisite vivd voce or by- affidavit ; and, where such proof shall have been required, the Master shall make and file, with the proceedings, a note stating that the party has given or failed to give such proof, as the case may be. In connection with this R., see s. 67 of the Act, empowering the Master to administer oaths. 222. In cases where it shall be necessary for any party to go into evidence subsequently to the hearing, or on any inquiry, account, or reference before the Court or Master, such evidence shall be taken, proceeded with, and closed under the direction of the Court or Master, in the same manner (as nearly as may be) as upon an issue of fact at Common Law, or in such other manner as the Court may in any case specially direct. See Ee Domes, U CD. 253. 223- If any party wishes to complain of any matter introduced into any state of facts, affidavit, or other pro- ceeding before the Master, on the ground that it is scandalous or irrelevant, or that any examination is insufficient, he shall be at liberty, without any order of reference by the Court, to apply to the Master to examine such matter, and the Master shall have authority to expunge any scandalous or irrelevant matter, and to direct any further examination as he shall see fit. This Rule differs from Cons. Ord. XXXV., r. 60, under which a party, complaining of scandal, &o., in Chambers, had to take out a summons before the Judge. The words "or that any examination is insufficient " depend, it is presumed, not on " on the ground that," but on "complain." The R., in fact, gives the Master, on. the complaint of a party, 186 RULES OF COURT. (1) a like power to expunge scandal, &c., in documents used before him to that possessed by the Judge in respect of pleadings or documents used before him (as to which see R. 151), (2) a power to direct a further examination of a witness (compare R. 217), when the examination tilready had before the Master appears to have been insufficient. See s. 24 of the Act. 22'4. After the evidence shall have been closed, the Master shall endorse on the state of facts, account, or other matter whereon evidence shall have been given, his decision thereon ; and after such endorsement, no further evidence shall be taken without an order of Court, or by consent ; but he shall be at liberty, nevertheless, to alter his decision, and the endorsement thereof, at any time before signing his certificate or report. Apparently the Master is to be at liberty to alter his decision and endorsement without notice to the parties, thus depriving the required endorsement of all value. 225. Whenever, in any proceeding before the Master, the same solicitor is employed for two or more parties, the Master may at his discretion require that any of the said parties shall be represented before him by a distinct solicitor, and may refuse to proceed until such party is so represented. This R. is substantially equivalent to Cons. Ord. XXXV., r. 21. Compare RR. 39, 306. 226- All references to the Master to appoint guardians, new trustees, or receivers shall be for appointment by the Master in the first instance, unless the Court shall other- wise order ; and a certificate by him of such appointment shall be filed in the Equity OflSce. RULES OF COURT. 187 227. In order to prevent inconvenient delays, the Master may allow any decree, order, certificate, report, or other document to be engrossed or copied by the solicitor requiring the same, and in such cases the solicitor shall be allowed sixpence per folio for such engrossment or copy, and no office fee shall be payable except, in case of office copies being obtained, the fee payable for certifying the same. ACCOUNT. 228. All accounting parties shall bring in their accounts, verified by affidavit, in the form of debtor and creditor, and the items on each side are to be numbered consecutively ; and any party not satisfied with the account so brought in shall be at liberty to examine the accounting party vivd voce, or upon interrogatories, as the Master shall direct : Provided that, in taking any account directed by any decree or order, all just allowances shall be made, without any direction for that purpose in such decree or order. This R. is principally compounded of provisions to be found in Cons. Ord. XXXV., r. 33 ; XXIII., r. 16. It does not, however, in terms, adopt Cons. Ord. XXXV., r. 34, which runs as follows : — " Any party seeking to charge any accounting party beyond what he has by his account admitted to have received, shall give notice thereof to the accounting party, stating, so far as he is able, the amount sought to be charged, and the particulars thereof, in a short and succinct manner." But it is submitted that, on common principles of fairness, and by virtue of R. VI., this Cons. Ord. and the English practice on the subject should be held applicable here. According to the English practice, an afl&davit filed by an accounting party in an adminis- tration suit is subject to cross-examination even before his account is vouched {Meaahamw. Cooper, 16 Eq. 102); but such party is entitled to notice of the points on which he is to be cross-examined, in default of which, it would seem, he may 188 RULES OF COURT. decline to be sworn {Lord v. Lord, 2 Eq. 605 ; and see Glover v. Ellison, 20 W.R. 408), and it is not sufficient to inform him that all the items but one are objected to {McArthior v. Dudgeon, 15 Bq. 102); or the objecting party may examine the accounting party vivd voce as his own witness, but in this case also he must give notice of the points as to which he wishes to examine (Wormsley v. Sturt, 22 Beav. 398). The rule as to notice applies to the case of a party seeking to charge by his account, as well as to the case of a merely accounting party (Bates v. Eley, 1 CD. 473). It is not usual for the Court to determine in the first instance what is a just allowance (per Lord Eldon, Brown v. De Tastet, Jac 294). See the notes to s. 53 of the Act. 229. It shall not be necessary in any charge upon the debtor and creditor account to set forth all the items of receipt, but only the further items with which the accounting party is sought to be charged. No formal discharge by the accounting party shall be required, but the payments set forth in his debtor and creditor account shall be treated as his discharge, and he shall be bound to vouch his payments and establish their propriety, if disputed, in the same manner in all respects as if they had been included in a discharge. ADMINISTRATION. 230- In suits wherein creditors are permitted or required to come in and prove their debts before the Master no creditor (other than a party to the suit) shall be entitled to attend on any matter not connected with the proof of his own debt, except by direction of the Master or order of the Court. Any creditor so proving shall be entitled to the costs of establishing his debt, and the sum to be allowed for RULES OF COURT. 189 such costs shall be fixed by the Master, without taxation, at the time the Master allows the debt of such creditor, unless the Master shall think that such costs ought to be taxed in the regular mode. And in all such suits the Master may (if he shall think fit), where the proof is not opposed, or for a sum under £10, allow the debt on the affidavit of the claimant alone, and also, if he shall think fit, without any claim in writing having been brought in : Provided that in such last-mentioned case the allowance or disallowance of the debt shall be endorsed on such affidavit. Subject as above, it has been frequently laid down that the unsupported testimony of any person on his own behalf cannot, in adjudicating upon claims of creditors and others, be acted on in a Court of Equity. "Though in many cases," said Lord Romilly, M.R., " it may prevent a person from receiving what he is justly entitled to, still the Court cannot act on the mere unsupported testimony of any claimant" {Grant v. Grant, 34 Beav. 623; see also Down v. Ellis, 35 Beav. 578 ; Rogers v. Powell, 38 L.J. Ch. 648; Morley v. Finney, 18 W.R. 490; Whittaher v. Whittaher, 21 CD. 657; Finch v. Finch, 23 CD. 267); but notwithstanding these cases it has been held that there is no absolute rule that the uncorroborated evidence of a claimant against the estate of a dead man will be rejected, but it will be regarded with jealous suspicion (Gandy v. Macaulay, 31 CD. 1 ; Beckett v. Ramsdale, ibid. 177 ; and see Re Farman, 57 L.J. Ch. 637). A decree in Equity in an administration suit binds the parties and is of the same force and effect as if an order to the same effect had been made in the Probate Jurisdiction (Probate Act, 54 Vict., No. 25, s. 62). Under s. 19 of 16 Vict., No. 3, the Court, on the application of the executors or administrators, may by order of course direct a reference to the Master to take an account of the debts and liabilities of deceased persons. 231- Where a decree or order is made directing an account of debts, claims, or liabilities, or an enquiry for next of kin or other unascertained persons, the Master shall cause 190 RULES OF COURT. advertisements for the same to be inserted in the Govern- ment Gazette and other newspapers, as he may think fit, and fix a peremptory day for that purpose; and, 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 shall be excluded from the benefit of the decree or order. But by favour of the Court a claimant may be admitted to come in and establish his claim after the expiration of the time fixed by advertisement, and even after certificate (see Walker & Elgood's "Administration Actions,'' ch. ix.). 232. Where a decree or order is made directing an account of the debts of a deceased person, interest shall, unless otherwise ordered, be computed on such debts, as to such of them as carry interest, after the rate they respectively carry, and, as to all others, after the rate of 5 per cent, per annum, unless the Court shall otherwise order, from the date of the decree or order. Except as to the rate of interest, this R. corresponds with Cons. Ord. XLIL, r. 9. If the debt accrues due after decree, interest will only run from the time of proof (Lainson v. Lainson, 18 Beav. 7). As to the application of proceeds of security by a secured creditor, see Be Talhott, 39 CD. 567. 233- A creditor whose debt does not carry interest, who comes in and establishes the same under a decree or order, shall be entitled to interest upon his debt after the rate aforesaid from the date of the decree or order out of any assets which may remain after satisfying the costs of the suit, the debts established, and the interest on such debts as by law carry interest. This corresponds with Cons. Ord. XLII., r. 10. RULES OF COURT. 191 23A>. Where a decree or order is made directing an account of legacies, interest shall be computed on such legacies after the rate of 4 per cent, per annum from the end of one year after the testator's death, unless the Court shall otherwise order, or unless any other time of payment or rate of interest is directed by the will, and in that case according to the will. This corresponds with Cons. Ord. XLII., r. 11. As to an implied direction by a testator as to payment of interest on a legacy, arising out of a direction to apply income in maintenance, see lie Richards, 8 Eq. 119, and cases there cited. And see Re Blackford, 27 CD. 676 ; .Be Waters, 42 CD. 517; Re BignoU, W.N. (1890) 164. CERTIFICATE OR REPORT. 235. The certificate or report of the Master upon or in relation to any matter referred to him may be in the form set forth in Schedule I to these Rules, with such variations as the circumstances of the case may require ; and, when prepared and settled, it shall be transcribed by the solicitor prosecuting the proceedings, in such form and within such time as the Master shall require, and shall then be signed by the Master at an adjournment to be made for that purpose. But where, from the nature of the case, the certificate or report can be drawn and copied in the Master's office whilst the parties are present before the Master, the same shall be then completed and signed by him without any adjournment. This E. is taken from Cons. Ord. XXXV., r. 48. As to the form of the certificate, see further section 68 of the Act. The Master may not refer the whole of the accounts to an accountant, and then adopt his report as his own certificate {Hill V. King, 9 Jur. N.S. 527). 192 RULES OF COURT. The Court on further consideration of the Master's certificate can deal with any costs incurred in the reference on which such certificate was made, but when an application had been made to the Primary Judge, who, without reserving costs, referred the matter to the Full Court, and the judgment of the Full Court was silent as to costs, the Court of Equity refused to make any order. One of the parties appealed to the Privy Council, and the appeal was dismissed for want of prosecution. Held, that the Privy Council alone had power to deal with the costs occasioned by such appeal {^In the will of James Underwood, Felton's Petition, 10 N.S.W.R. Eq. 227). See also notes to s. 69 of the Act. 236' No certificate or report to be made by the Master shall, unless the special circumstances of the case so require, set out the decree or order, or any documents or evidence or reasons ; but shall refer to the decree or order, documents, and evidence, or particular paragraphs thereof, so that it may appear thereby to the Court upon what the result stated in such report or certificate is founded. This R. is taken from Cons. Ord. XXXV., r. 47. 237. The Master shall be at liberty in all cases to state special circumstances in his certificate or report. See notes to s. 68 of the Act. 238. In all matters referred to him the Master shall be at liberty, upon the application of any party interested, or without such application, to make a separate certificate or report from time to time as to him shall seem expedient, the costs of such separate certificate or report to be in the discretion of the Court. Certificates are either general or separate. General certificates embrace the results of all the proceedings taken at Chambers, RULES OF COURT. 193 under the decree or order, A separate certificate comprises the result of only some one or more of them. Separate certificates are made in cases where it is not desirable to wait till the whole proceedings are completed (Daniell's Ch. P. 5th ed. 1215). See R. 215. 239. Where the Master shall make a separate certificate or report of debts or legacies, he shall be at liberty to certify, as he thinks fit, with respect to the state of the assets ; and every person interested shall thereupon be at liberty to apply to the Court, as he shall be advised. 240. The time within which any party is to be at liberty to take the opinion of the Court upon any proceedings which shall have been concluded, but as to which the certificate or report of the Master shall not have been adopted by the Court, shall be four clear days after the same shall have been signed by the Master. This R. is taken from Cons. Ord. XXXV., r. 49. 241. Any party desiring to take the opinion of the Court as mentioned in the last preceding Rule, shall within four clear days after the certificate or report shall have been signed by the Master obtain a summons for such purpose. This R. is taken from Cons. Ord. XXXV., r. 50. 24<2. At the expiration of four clear days after the certifi- cate or report shall have been signed by the Master, if no party has in the meantime obtained a summons to take the opinion of the Court thereon, the Master shall submit the certificate to the Court for approval ; and the Judge may thereupon, if he approve the same, testify his adoption thereof as follows : — " Approved this day of "; and thereupon the certificate or report shall be filed. This R. corresponds with Cons. Ord. XXXV., r. 51. M 194 RULES OF COURT. ZA3. The time within which an application may be made, by summons or motion, to discharge or vary any certificate which has been signed and adopted by the Judge in chambers, shall be eight clear days after the filing of such certificate. This R. is taken from Cons. Ord. XXXV., r. 52. The eight days run during vacations ( Ware v. Watson, 7 De G. M. & G. 739). It is sufficient if a summons to vary be taken out within the eight days, although not returnable within that period {Wycherley v. Barnard, Johns, 41). But the practice has been otherwise laid down where the application is by motion ; in that case, it is not enough that notice of motion was served within the eight days, if the motion be not made until after their expiration {Henshaw v. Angell, 9 Eq. 451) ; where, however, it is necessary or advisable to proceed by motion, and it is impossible to move on any motion day within the eight days, the Court will give special leave to serve notice of motion for some day within the eight days not a motion day {Cross v. Maltby, 8 W.R. 646). Leave was given to move to vary the certificate, though applica- tion was not made until after the expiration of the eight days, where the omission to apply arose from pressure of business and mistake on the part of the solicitor, and where there was error apparent on the certificate {Briant v. Tibbut, 17 W.R. 274; Ashton v. Wood, 8 De G.M. & G. 698 ; Purcell v. Manning, 3 Jur. N.S. 1070 ; and see infra) ; and in a recent case the Court of Appeal, notwithstanding lapse of time, varied the certificate (in which was a manifest error), and the order, on further considera- tion, so far as it proceeded on the erroneous finding, the fund not having been distributed (Berry v. Oauhroger, W.N. 1882, 64). So leave may be given after the eight days to take out a summons to vary ; but after the eight days have elapsed, the certificate will not be discharged or varied, except on special grounds (Howell v. Keightley, 8 De G. M. & G. 525), nor while a decree containing consequential directions founded on it stands (Turner v. Turner 1 Sw. 154). If no summons has been taken out to refer the certificate to the Judge (R. 239), and no summons has been taken out or motion made to vary it, the certificate cannot be objected to (Lamhe v. Orton, 8 W.R. Ill ; Smith v. Armstrong, 6 De G. M. & G. 150 ; RULES OF COURT. 195 Aspinall V. Bourne, 29 Beav. 462 ; and see Leigh v. Twrner, 14 W.R. 361, and Re Brier, 26 CD. 238. Where, however, there is error apparent in a decree or certificate, the Court of its own motion may, and indeed is bound, to set it right {Gradoch v. Owen, 2 Sm. & G. 241, 247 ; Adams v. Claxton, 6 Ves. 226 ; Richwrdson V. Ward, 13 Beav. 111). Applications to vary certificates are usually made by summons, and are almost always adjourned, so as to come on with the further consideration of the suit. A creditor who has proved in an administration suit has a right to apply to vary the certificate {Wilson v. Wilson, 2 Moll. 328). An affidavit which was not used before the Master cannot generally be used on an application to vary his certificate {Davis V. Davis, 2 Atk. 21 ; Pierce v. Hammond, 10 L.T. 261 ; Baylis V. Watkins, 9 Jur. N.S. 570) ; nor is cross-examination then allowed on affidavits which were used before him (Dawkins v. Morton, 10 W.R. 339); and qucere whether on further considera- tion affidavits referred to in the certificate can be read when there is no summons to vary {per Fry, L.J., Re Brier, 26 CD. 242). 244. In cases where any computation of interest, or the apportionment of any ascertained fund, is directed by the Court to be made and acted upon, it may be acted upon after four clear days from the filing of the repor£ or certifi- cate thereof. CONVEYANCE— SETTLING OF. 245- When the Master is ordered to settle any conveyance, in case the parties differ about the same, a statement in writing of the required alterations shall be served by the party objecting to the draft on the party by whom the same was prepared within eight days after the service of notice of leaving such draft with the Master. 196 RULES OF COURT. COSTS. 246. Whenever it shall appear to the Master that the costs, or part of the costs, of any attendance, or of any proof before him, or costs incurred through any non-attendance or review, ought not to abide the general event of the reference .to him, but that it is just and reasonable that the same should be paid specially by any party or claimant, it shall ■ be lawful for him, in his discretion, to award the payment of such costs, or part thereof, or a fixed sum in lieu of such costs, as, and by whom, he shall in that behalf direct. SALE BY COURT. 24; 7. Where an order is made directing any property to be sold, the same shall, unless otherwise ordered, be sold with the approbation of the Master to the best purchaser that can be got for the same, to be allowed by him and all proper parties are to join therein, as the Master shall direct. And see "Settled Estates Act," 1886 (50 Vict., No. 20), s. 13, and R. 36 thereunder. 248. When any property is ordered to be sold by or by the direction of the Master, he shall by memorandum in writing without any proposal being laid before him, appoint an auctioneer to sell such property, who shall proceed to the sale in the usual manner, and be paid a percentage or stated sum, to be fixed by the Master at the time of such appointment ; and such auctioneer shall immediately after he shall have received any deposit pay over the same to the Master to the credit of the suit in which the order was made, and shall state what he has done in respect of the sale, upon affidavit to be filed in the Office. RULES OF COURT. 197 24:9. No order shall be necessary for allowing any party to the record to bid at such sale, if he would be allowed by law to bid at the same sale in ease it had not been under an order of Court. This R. seems to abolish by implication the old and wholesome rule of practice {Domville v. Berrington, 2 Y. & C. Ex. 723 ; Sidny v. Hanger, 12 Sim. 118; Ex parte McGregor, 4 De G. & Sm. 603) that leave to bid will not, except under special circumstances, be given to the party conducting a sale directed by the Court. RECEIVERS. 250. Unless otherwise ordered, where an order is made appointing a receiver, the person to be appointed shall first give security, to be allowed by the Master, and to be taken before himself, or, if necessary, before a commissioner in the country, duly to account for the rents and profits for the receipt of which he is appointed, at such periods as the Court or Master shall appoint, and to pay the same as the Court shall direct, or, as the case may be, to be answerable for what he shall receive in respect of the personal estate for the getting in and collection of which he is to be appointed, and to account for and pay the same as the Court shall direct. And the person so to be appointed shall be allowed by the Court a proper salary or commission for his care and pains in receiving such rents and profits, or, as the case may be, shall have an allowance made to him in respect of his managing and collecting such estate. This R. is taken with immaterial alterations from Cons. Ord. XXIV., r. 1. The security usually required is the recognisance of the receiver, with two sureties. The security is usually for double the 198 RULES OF COURT. annual rental ; though two sureties are usual, the number may be increased, to reduce the amount of each. The sureties must be resident within the jurisdiction, and upon any event, such as death or bankruptcy, happening, which would prevent the recognisance being effectually put in force against them, an order will be made at Chambers on summons, directing the receiver to give a new security. After reference, the Court will not dispense with the usual security, even with the consent of the parties interested. If the parties desire it, they should nominate of their own authority, and then apply that the receiver appointed by themselves shall not be required to give security ; and the parties so applying must be sui jwris (Seton 4th ed. 426). Part of the outstanding estate of an intestate, which a receiver was directed to get in, consisted of bank shares of great value, registered in the intestate's name. As it appeared that great difficulty would be experienced in finding sureties to enter into the receiver's recognisance, by reason of the great value of the shares, the administratrix was authorised to get such shares transferred into her own name, and ordered to transfer them, together with others then registered in her own name, into the name of the Master in Equity, the receiver to give security and be accountable in respect of such shares only for what he should receive of the dividends (Malcolm v. Harris, 7 S.C.R. Eq. 66). The usual allowance (in England) is 5 per cent, on the gross rental of the estates ; but, where the rental is very con- siderable, a percentage at a lower rate is allowed, or a fixed salary. If there is any special difficulty in collecting the rents, the allowance is increased ; if facility, diminished. A receiver may be entitled to an allowance beyond his salary for extra- ordinary ti'ouble and expenses, but not without previous order (Seton, 4th ed. 425). See 26 Vict., No. 12, ss. 53, 57. And see notes to s. 57 of the Act ; and R. 226 as to references to the Master to appoint receivers. Cf. s. 13 (2) of the Bankruptcy Act, 1887. 251- Unless otherwise ordered, when a receiver or guardian shall have been appointed, the Master shall fix the days RULES OF COURT. 199 upon which the receiver or guardian shall (annually or at longer or shorter periods) leave and pass his accounts, and shall also afterwards he at liberty to extend or diminish the same, and on the passing of such accounts the Master shall fix the days upon which such receiver or guardian shall pay such sums as shall be found due and shall be directed to be paid. And with respect to such receivers or guardians as shall neglect to leave and pass their accounts, and pay the balances thereof at the time so to be fixed for that purpose as aforesaid, the Master shall from time to time, when their subsequent accounts are produced to be examined and passed, not only disallow the salaries or commissions therein claimed by such receivers or guardians, but also charge them with interest after the rate of £8 per cent, per annum upon the balances so neglected to be paid by them during the time the same shall appear to have remained in the hands of such receivers or guardians. With the exception of the words italicised (which, however, are probably superfluous, having regard to R. 296), this R. is taken from Cons. Ord. XXIV., r. 2, save that the rate of interest chargeable by the English r. against defaulting receivers is 5 per cent. Where the default was made by executors of a receiver, it was held that they ought to be charged with interest at the rate, not of 5 per cent., but of i per cent, only (Clements v. Beresford, 10 Jur. 771). 252. Whenever the accounts of any guardian or receiver are not brought in to the Master's office, or are not pro- ceeded with and completed, in the manner and within the time respectively prescribed in that behalf, — or whenever any party or solicitor has omitted duly to prosecute and enforce the matter, or to bring the case before the Court within a time limited by the Master, for that purpose, — the 200 RULES OP COURT. Master may commit to the Crown Solicitor the conduct of such matter, and direct him to bring the case before the Court, or may certify the above facts to the Court. This R. is taken from the RR. as to proceedings under the Statutory Jurisdiction (4th July, 1863, Chap. XXXI., R, 10). 253. Receivers of rents and profits of lands, now or here- after appointed, shall, when the yearly value of any such land shall not exceed one hundred pounds, have power to let the land, with the approval of the Master : Provided that any such letting shall be void if the Court shall make an order to that effect at any time before the expiration of one month. 254. When the value shall not exceed the rate of fifty pounds yearly, receivers shall have power to let the land from year to year, or for a less period, without the approba- tion of the Master previously signified : Provided that every such case shall be subject to the Master's control as to future lettings, in case of any complaint made to him. The joint result of RR. 253 and 254 seems to be as follows : — As to lands worth a rental not exceeding £50 a year, a receiver may, of his own motion, let it from year to year (qucere for a year) or for a less period, subject to the Master's control as to any letting after the first ; and, with the approval of the Master, may let the same land for a longer period, subject to avoidance by the Court within a month. As to lands worth a rental exceeding £50 but not exceeding £100 a year, a receiver can only let it with the approval of the Master, but with such approval may let it for a term of any length, subject to avoidance by the Court within a month. It is obvious that in the case of lands worth not more than £50 a year, which the receiver proposes to let for a longer term than from year to year (qucure a year), and in the case of lands worth from £50 to £100 a year, which he proposes to let for any period whatever, an intending lessee cannot safely accept a lease RULES OF COURT. 201 unless and until a month has passed since the Master's approval of the proposed lease, and the Court has not in the meanwhile put its veto upon it. It is curious that the EE,. make no express provision for the letting by a receiver of lands worth more than £100 a year. It is presumed that he may let them with the approval of the Master, but in this case there is no power of veto in the Court, the result being that the Court would scrutinise more closely the letting of lands worth less than £100 a year, than the letting of lands of a greater rental value. The difficulty might be avoided by the Master always referring to the Judge applications by a receiver to grant leases of land worth more than £100 a year; and perhaps this is what was contemplated. 255. In no case within either o£ the two last preceding Rules shall any certificate or report to the Court be made of any letting : Provided that the Master may in all cases direct such notices to be given of any proceeding under these Rules as he may think fit. 256. Receivers may, without the previous direction of the Master, lay out in repairing the property, when necessary, any sum not exceeding fifty pounds in one year, and the Master in passing their accounts shall allow the same, if he shall be of opinion that it has been expended for the benefit of the persons interested in the property. STOP ORDERS. 257. Where any stock, funds, shares, securities, or moneys are standing in Court in trust in, or to the general credit of, any suit or matter, or to the account of any class of persons, and an order is made to prevent the transfer or payment of such stock, funds, shares, securities, or moneys, or any part thereof, without notice to the assignee of any person entitled 202 RULES OF COURT. in expectancy, or otherwise, to any share or portion of such stock, funds, shares, securities, or moneys, the person by whom any such order shall be obtained, or the said share or portion of the stock, funds, shares, securities, or moneys, affected by such order shall be liable, at the discretion of the Court, 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 suit or matter, or any person interested in any such stock, funds, shares, securities, or moneys. This R. is taken from Cons. Ord. XXVI., r. 1. 258. Any person making a motion or presenting a petition for any such order as aforesaid shall not be required to serve notice of such motion or petition upon the parties to the suit, or upon the persons interested in such part of the stock, funds, shares, securities, or moneys, as are not sought to be affected by any such order. This R. is the same as Cons. Ord. XXVI., r. 2, except that the English r. runs : — " Any person presenting a petition or taking out a summons," &c. ■ Accordingly, in the English practice, it is now settled that in all cases, even where the assignor opposes the application, though formerly it was by petition, must be by summons (Wrench v. Wynne, 17 W.R. 198 ; Walsh v. Wason, 22 W.R. 676) ; the costs of a petition will not be allowed {Walsh v. Wason), and the petitioner may be ordered to pay the difference between the costs of obtaining the order in Chambers and the costs of the petition ( Wellesley v. Morniagton, 41 L.J. Ch. 776 ; Seton 4th ed. 303). But the different wording of R. 258 indicates that liere the application must be by either petition or motion, and not by summons; and the difference in practice is reasonable, for summonses being heard here by the Judge personally in the first instance, and counsel being therefore usually employed, there is by no means the same difference here as in England between the expense of proceedings had in Court and in Chambers. RULES OF COURT. 203 And see generally Daniell's Ch. P. 5th ed. 1543-7; Seton 4tli ed. 303. MONEY IN COURT AND SECURITIES. 259. All moneys paid into Court, in any estate, cause, or matter in Equity, shall be forthwith deposited in such Bank as may for the time being be named by the Government of the Colony, in that behalf, to the credit of the Colonial Treasurer, at the rate of interest as arranged between the Court and the Colonial Treasurer : Provided that the Court may in its discretion invest any of the aforesaid moneys in Government debentures or stock of this or any other of the Australasian Colonies, or on real security in this Colony, or by deposit at interest in any incorporated Bank carrying on the business of banking in Sydney which shall have been approved by the said Court : Provided that no such deposit shall be made in any bank in which the liability of the shareholders thereof is limited to the amount of their shares in the subscribed capital, or wherein there shall not exist a further liability to not less than the like amount. This R. is compounded of E.G. 30th March, 1862, E.G. 2nd Feb., 1883, R. 2, and R. 16 of Chapter XXXI. of the Cons. Standing RR. (N.S.W.) from July 4th, 1863— Nov. 30th, 1874 ; and see 26 Vict., No. 12, s. 34. See R. 171. 260. Separate accounts shall be kept by the Master of ail the estates, causes, or matters in respect of which any moneys shall have been paid to the credit of the Treasury, and of all payments thereout, whether for principal or interest. 261. The Master shall, in the months of January, April, July, and October, exhibit to the Primary Judge, and file 204 RULES OF COURT. in the Equity Office of this Court, accounts of all payments received by him, and by him paid into the said Bank to the credit of the Treasury, and of all payments made thereout by him within the preceding period of three months ; and every such account shall also show the balance to the credit of each account and the balance in the Treasury or Bank to the credit of the Court at the commencement and termina- tion respectively at such period. A certified copy of such account shall be forwarded to the Colonial Treasury for safe custody. 262. For every sum so deposited duplicate receipts shall be required of and given by the Colonial Treasurer, or by some Officer of the Treasury or Bank duly authorized by him on that behalf, of which one receipt shall be kept by the Officer making the payment, and the other shall be forthwith lodged in the Equity Office and entered in a book to be kept for that purpose. 263- No money so deposited shall be withdrawn or paid ' from the Treasury or the said Bank on its account otherwise than under the authority of a decree or order of the Court. Provided that the said Bank or the Colonial Treasurer shall not be bound to inquire whether any such decree or order has been made, or whether it -sufficiently authorizes such withdrawal or payment, but shall make payments under orders signed as hereinafter next mentioned. 264. No such withdrawal or payment shall be made by the said Bank or the Colonial Treasurer without an order signed by the Master or in his absence or illness by the Deputy-Registrar, or Chief Clerk respectively, and counter- signed by the Accountant in Equity or in his absence by the assistant Accountant. RULES OF COURT, 205 265. Every such order shall be payable to order, but shall mention thereon the name of the cause, matter, or estate, in which or in respect of which the same is drawn : Provided that the said Bank or Colonial Treasurer shall not be bound to inquire into the correctness of such particulars. These RR. are taken from R.G., 2nd Feb., 1 883, RR. 3-8, omitting the references to Lunacy, which is provided for under the Lunacy RR. of the 7th July, 1887. 266- Where the party to whom money exceeding £10 is ordered to be paid out of Court does not request payment thereof through the post, as in rule 273, hereafter mentioned, or attend the Equity Office in person, the power of attorney to receive the same must be in accordance with the provisions of the Act 17 Vict., No. 22. Provided that a common power of attorney without any declaration shall suffice where the money is paid on the day of the execution of such common power of attorney. 267. When any person is entitled under a decree or order to receive a dividend or any other periodical payments from the Master's Office, and the Master requires evidence of life or of the fulfilment of any conditions affecting such pay- ments, such evidence may be furnished by statutory declara- tion or affidavit to be filed in the Master's office. This R. is compounded of rr. 95, 96 of "The Supreme Court Funds Rules, 1884 " (Eng.). SeeRR. 174, 273(c). 268. Any order or other document by which payment of money is effected, when endorsed or signed by the payee or his lawful attorney, shall be a good discharge to the Master for the amount therein expressed. Provided that nothing 206 RULES OF COURT. herein contained shall prevent the Master from demanding a receipt for any payment made by him. This R. corresponds with r. 50 of the same RR. 269. When money, debentures, or other securities in Court are by any decree (or order) directed to be paid, transferred, or delivered to any person (except he be entitled thereto as a trustee, executor, or administrator, or otherwise than in his own right or for his own use), such money, debentures, or other security, or any portion thereof, for the time being, remaining unpaid, or untransferred, or undelivered, may unless the decree (or order) otherwise directs, on proof of the death of such person, whether on or after, or in the case of payment directed to be made to creditors as such before the date of such decree (or order), be paid, or transferred, or delivered to the legal representa- tives of such deceased person, or to the survivors of them. If the Master is satisfied that no administration has been taken out to any such deceased person who has died intes- tate, and whose assets do not exceed the value of £100, including the amount of the money, debentures, or other securities directed to be so paid, transferred, or delivered to him, such money, debentures, or other securities may be paid, transferred, or delivered to the Curator of Intestate Estates to be administered by him. This R. is taken from r. 62 of "The S.C. Funds Rules, 1884," as amended in 1886. See RR. 173, 176. 270. When money in Court is by any decree (or order) directed to be paid to any persons described in the decree (or order), or in any certificate of the Master as co-partners, such money may be paid to any one or more of such co-partners, or to the survivor of them. RULES OF COURT. 207 271. When money, debentures, or other securities in Court are by any decree {or order) directed to be paid, transferred, or delivered to any persons as legal representa- tives, such money, debentures, or other securities, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, upon proof to the satisfaction of the Master of the death of any of such representatives, whether on or after the date of the decree {or order) directing such payment, transfer, or delivery, be paid, transferred, or delivered to the survivors or survivor of them. 272. No money, debentures, or other securities shall under the last two rules be paid, transferred, or delivered out of Court to the legal personal representatives of any person under any probate or letters of administration purporting to be granted at any time subsequent to the expiration of six years from the date of the decree {or order) directing such payment, transfer, or delivery, or in case such money, debentures, or other securities consist of interest or divi- dends from the date of the last receipt of such interest or dividends under such decree {or order). These RR. are taken from "The S.C. Funds Rules, 1884," rr. 63-65. See RR. 173, 176. PAYMENTS TO BE MADE BY POST. 273. (a) When money (other than a periodical payment as in part (c) of this rule mentioned) is by a decree {or order) directed to be paid to a person who has an account at a Bank in this Colony, the Master shall remit the same by post by registered letter, 208 RULES OF COURT, upon receiving a request to that effect, together with a receipt for such payment in the prescribed form, and signed by such person and attested by a Justice of the Peace, a Commissioner for Affidavits, or a Notary Public. The order for such payment will be sent to the address stated in the request, and will be specially crossed to his account at the named Bank, and will not be negotiable. (b) When money not exceeding £500 (other than a periodical payment in part (c) of this rule men- tioned) is by a decree (or order) directed to be paid to a person residing in this Colony who has not an account at a Bank in this Colony, the Master shall remit the same by post by registered letter to such person upon receiving a request to that eflfect, together with a receipt for such payment, both in the prescribed form, and signed by such person and attested in the same manner required in the preceding part of this rule (a). The order for payment will be sent to the address stated in the request, and will be crossed so as to be payable only through a Bank. (c) Any person residing within this Colony entitled under a decree (or order) to any interest, dividend, annuity, or other periodical payment may send to the Master a request in the prescribed form for the remittance of the same by post, from time to time, as it accrues due. Such request to be signed by such person and attested in the manner prescribed in the preceding parts of this rule (a and b), and the Master may then afterwards, as such periodical payment falls due (and upon receiving a receipt RULES OF COURT. 209 for each such payment together with evidence of life or of the fulfilments of any conditions of payment as referred to in rule 267) remit the same by post to the address stated in the request. The order for payment will be crossed so as to be payable only through a Bank. Provided that the Master may refuse to make a remittance under this rule in any case in which he sees reason for so doing. And provided also that the transmission by post, upon a request, of any crossed order for payment shall be at the sole risk of the person at whose request it is sent. Requests and receipts for payment under this rule, and notification of changes of addresses of persons entitled to periodical payments shall be in such form as may from time to time be prescribed by the Master with the approval of the Colonial Treasurer. The forms in Schedules L. M. N. have been duly settled by the Master and approved by the Colonial Treasurer. This R. is taken mutatis mutandis from " The S.C. Funds Rules, 1884," r. 48, as amended in 1886. * PROCEEDINGS UNDER THE STATUTORY JURISDICTION. I. — Trustee Relief and Security Act, 21 Vict, No. 7. 274:. Any trustee desiring to pay money to the account of the Master, or transfer or deposit stock or securities, into [* The Rules relating to proceedings under the statutory juris- diction 4th July, 1863, Chapter XXXI., and the Rules 1 to 7 inclusive of the 1st August, 1865, not rescinded by R. 1 of the Cons. Standing RR. of 29th June, 1883, have been consolidated in these RR.] N 210 RULES OF COURT. or in the Master's name, under the Statute 21 Vict., No. 7, shall file an affidavit entitled in the matter of the trust and in the matter of the Act, and setting forth; — (1) His own name and address. (2) The place where he is to be served with any petition or any notice of any proceeding or order of the Court relating to the trust fund. (3) The amount of money, stock, or securities which he proposes to pay, or transfer into, or deposit in Court to the credit of the trust. (4) A short description of the trust and of the instru- ment creating it. (5) The names of the persons interested in or entitled to the fund, to the best of the knowledge and belief of the trustee. (6) The submission of the trustee to answer all such inquiries relating to the application of the money, stock, or securities paid in, transferred or deposited under the Act, as the Court may think proper to direct. See 21 Vict., No. 7, ss. 1, 5. 275. The Master, on production of the affidavit, shall give the necessary directions for payment, transfer, or deposit, and place the money, stock, or securities to the account of the particular trust ; and such payment, transfer, or deposit shall be certified in the usual manner. See 21 Vict., No. 7, s. 1, as to the Master's certificate. 276. The Trustee having made the payment, transfer, or deposit, shall forthwith give notice thereof to the several persons named in his affidavit as interested in or entitled to the fund. RULES OF COURT. 211 Alt. Such persons, or any of them, or the Trustee, may- apply by petition or motion, as occasion may require, respecting the investment, payment out, or distribution of the fund, or of the dividends, or interest thereof. See s. 3, ih. 278. The Trustees shall be served with notice of any application made to the Court respecting the fund, or the dividends or interest thereof, by any person interested therein or entitled thereto. 279. The persons interested in or entitled to the fund shall be served with notice of any application made by the Trustee to the Court, respecting the fund in Court, or the interest or dividends thereof. 280. No petition shall be set down to be heard, and no motion made, until the petitioner or applicant has first named in his petition, or notice of motion, a place where he may be served with any petition or notice of any proceeding or order of the Court, relating to the trust fund. 281. Petitions presented, and notices of motions served and affidavits filed, and all proceedings had under the said Act, shall be entitled in the matter of the particular trust, and in the matter of the Act 21 Victoria, No. 7. 282. Any order made, or direction given, by the Master in such matters may be discharged or varied by the Court ; and the costs in every such matter shall be in the discretion of the Court, and shall be paid by such person or out of such fund as the Court shall direct. 212 RULES OF COURT. II.— ^ci 26 Vict, No. 12. 2o3- All petitions, summonses, statements, affidavits, and other proceedings under the 30th section of the last- mentioned Act, shall be intituled in the matter of the particular trust, will, or administration, and in the matter of the Act 26 Victoria, No. 12 ; and every such petition or statement shall state the facts concisely, and shall be divided into paragraphs numbered consecutively ; and every summons shall, as nearly as may be, and except as to its title, be similar to the form set out in Schedule K. 284. At the time when any such summons is issued, the statement upon which the same is grounded shall be filed in the Master's office. 285. Every such petition or summons shall be served eight clear days before the hearing thereof, unless the person served shall consent to a shorter time. 286. The opinion, advice, or direction of the Judge shall be passed and entered, and remain of record in the same manner as any order made by the Court or Judge ; and the same shall be termed "a judicial opinion," or "judicial advice," or "judicial direction," as the case may be. No affidavits should be filed in support of a petition under s. 30 of 26 Vict., No. 12; where such affidavits were filed, the Court refused to allow the costs of them {Re Cox's will, 11 N.S.W.R. Eq. 124, where it was laid down that the Equity Court has a wider discretion than the English Courts in granting remuneration to trustees, and will do so on petition under this Act, where it is clearly for the benefit of the estate). And see 16 Vict., No. 3, s. 1, et sqq., as to stating special case for the opinion of the Court. RULES OF COURT. 213 III. — Charter of Justice, s. 18, and 11 Vict, No. '21. 287. Upon every application for the appointment of a guardian to an infant, or for an allowance for his mainten- ance, the evidence to support the same must show the following particulars : — 1. The age of the infant. 2. The nature and amount of his property and income. 3. Where and under whose charge the infant generally resides, and at whose expense he is maintained. 4. What relations he has. 5. The position in life of such infant and of his parents. 6. The residence, age, and position in life of the proposed guardian. 7. Any other circumstances showing his fitness for that oflBce. 8. The written consent of such proposed guardian to act. 288. Unless special circumstances require a reference for such appointment and allowance, the costs of an application to the Court for a direct appointment only will be allowed. The Act 11 Vict., No. 27, s. 2, enacts that the Primary Judge shall have full power to hear and determine all matters relating to the appointment of guardians of infants and their estates. The jurisdiction will be exercised in a summary way upon summons in Chambers, see s. 62 of the Equity Act. With regard to a reference by the Judge to the Master in Equity before making the order, c/. R. 293. 214 RULES OF COURT. lY.— Act W Vict, No. 2. 289. Upon any application to obtain the sanction of the Court to an infant's making a settlement on marriage under the Act 20 Vict., No. 2, evidence must be produced in support of the same, showing the following particulars : — 1. The age of the infant. 2. Whether he has any parent or guardian. 3. With whom and under whose care he is living ; and if no parent or guardian, what near relations such infant has. 4. The position in life of the infant and of his parents. 5. What his property consists of. 6. The age and position in life of the person whom such infant proposes to marry. 7. What property and income such person has. 8. The fitness of the proposed trustees under the settlement. 9. Their written consent to act. The sanction of the Court may be obtained upon petition presented to the Primary Judge by the infant or his or her guardian in a summary way (20 Vict., No. 2, ss. 3, 5). 290- The heads also of the proposed settlement must be specified in the petition, or in some affidavit in support of such application. 291. These regulations apply severally to all infants, female as well as male. The Act does not apply to male infants under the age of twenty years, or to female infants under the age of seventeen years, s. 4. RULES OF COURT. 215 Y.—Acts 16 Vict., No. 19, 17 Vict, No. 4. 292. Upon any application by petition, for the appoint- ment of new trustees under the Trustee Acts of 1852 and 1853, the evidence to support the same must show the following particulars : — 1. The nature of the trusts still subsisting. 2. The nature and value of the property subject to such trusts. 3. The persons beneficially entitled. 4. The fitness of the proposed new trustees. 5. Their written consent to act. See 16 Vict., No. 19, ss. 30-40 ; 17 Vict., No. 4, ss. 8-10. 293- Unless special circumstances require a reference for such appointment, the costs of an application to the Court • for a direct appointment only will be allowed. See 16 Vict., No. 19, ss. 36-40, 48. RULES AS TO TIME. 294;. Where time is prescribed by these rules to any party to a suit for doing any act, he shall be allowed half as many more days if he resides above 100 miles from Sydney, and twice the stated number of days if he resides above 200 miles from Sydney: Provided that the Court may enlarge or abridge such time on sufficient cause shown. 295. Service of all writs, notices, summonses, orders, documents, and other proceedings not requiring personal 216 RULES OP COURT. service shall, unless otherwise ordered, be made before half- past 4 o'clock in the afternoon, except on Saturday, when it shall be made before 1 o'clock in the afternoon. 296. Where the Master is authorised to fix the time for doing any act, he may enlarge or abridge the time so fixed on sufiicient cause shown. iume The power of abridgment given by this R. will, it is pres' be cautiously exercised. 297. Where any time from or after any date or event is appointed or allowed for doing any act or taking any proceeding, and such time is. not limited by hours, the computations of such time shall not include the day of such date or of the happening of such event, but shall commence at the beginning of the next following day, and the act or proceeding shall be done or taken at the latest on the last day of such time according to such computation. 298- Where the time for doing any act or taking any proceeding is limited by months, such time shall be taken to be calendar months. 299. Where any limited time less than eight days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sundays and other days on which the offices are closed shall not be reckoned in the computation of such limited time, 300. Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on which the office in which the act is reqhired to be done or the pro- ceeding to be taken is closed, and by reason thereof such RULES OF COURT. 217 act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken, if done or taken on the day on which such office shall next open. With these RR. must be read Reg. Gen., 20th November, 1890 :— 23. — During the Vacations, causes may be set down, and notices of trial, and to admit or produce documents, may be given, and all writs may be issued, executed, and returned; and in every case costs may be taxed if the Taxing Officers shall deem it neces- sary ; and all necessary proceedings may be taken for the purposes of an appeal, or for obtaining or dissolving any injunction. And summonses in cases of emergency may be returnable in Chambers on any Friday. 24. — During the Vacations no other business than that above specified will be taken without the leave of a Judge, nor shall any pleadings be filed or delivered without such leave, nor shall tin.e run at law or in equity. COSTS, CHARGES, AND EXPENSES GENERALLY.. 301. Where the Court appoints one of the solicitors of the Court to be guardian ad litem, of an infant or person of unsound mind, the Court 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 suit 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. This R. corresponds with Cons. Ord. XL., r. 4. See Morgan and Wurtzburg, 343, 344. 218 RULES OF COURT. 302. Where costs are ordered to be paid to a party suing or defending in formd pauperis, such costs shall be taxed as ordinary costs, unless the Court shall otherwise direct. This R. corresponds with Cons. Ord. XL., r. 5. The costs of an abandoned motion are within the Rule {Mornington v. Keane, 3 W.R. 429). Plaintiff had obtained an order to dismiss his bill as against a pauper defendant ; it was held that the- defendant was entitled to dives costs {Rubery v. Morris, 18 L.J. Ch. 444). SeeRR. 53, 117. 303' Where the plaratiff is directed to pay to the defen- dant the costs of the suit, the costs occasioned to a defendant by any amendment of the statement of claim shall be deemed to be part of such defendant's costs in the suit, except as to any amendment which may have been made by special leave of the Court or which shall appear to have been rendered necessary by the default 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. This R. corresponds with Cons. Ord. XL., r. 7 See note to next R. 304. Where upon taxation a plaintiff, who has obtained a decree with costs, is not allowed the costs of any amend- ment of the statement of claim upon the ground of its having been unnecessarily made, the defendant's costs occasioned by such an amendment shall be taxed, and the amount thereof deducted from the costs to be paid by the defendant to the plaintiff. This R. corresponds with Cons. Ord. XL., r. 8. RULES OF COURT. 219 The Court may give special directions to the Master to look into the pleadings, and tax the costs occasioned by unnecessary amendments (Surchell v. Giles, 11 Beav. 34). Where a plaintiff by amendment abandons a part of his claim, and it appears he has in that respect acted vexatiously, the Court on motion will direct him to pay the costs thereby occasioned {Strickland v. Strickland, 3 Beav. 242). But such a direction will not be given at the hearing, without a special application ; the most convenient time for such an application is immediately upon the cause of complaint arising, and the amount of the costs complained of is material in reference to the propriety of the application (Mounsey v. Bwrnham, 1 Ha. 22). See further Morgan and Wurtzburg, 35, 36. 305- Where the Court is of opinion that any petition or affidavit, or any part thereof, is improper or of unnecessary length, the Court may direct the Master to ascertain the costs occasioned to any party thereby, and may make such order as is just for the payment or allowance of such costs. This R. (which in substance is taken from Cons. Ord. XL., r. 9) deals only with the costs occasioned by the impropriety or prolixity of petitions and affidavits. As to pleadings, see s. 6 of the Act (prolixity), s. 24 (impertinence), R. 151 (scandal and tending to embarrass, &c.). The Master will not look into these matters under the common order to tax (Ee Farington, 33 Beav. 347). It has been said that such a direction as contemplated by this R. is of itself an intimation that the Court considers the affidavit or petition of unnecessary length {Re Skid/more, 1 Jur. N.S. 696) ; sed qucere. 306. Where the same solicitor is employed for two or more defendants, and separate statements of defence are filed, or other proceeding had, by or for two or more of such defendants separately, the Master shall consider in the taxation of such solicitor's bill of costs, either between party 220 RULES OF COURT. and party or between solicitor and client, whether such separate defence 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 disallowed. This R. corresponds with Cons. Ord. XL., r. 12. Where a solicitor set down a separate plea for each of two defendants, he was allowed, as against, the plaintiflf, the costs of one only (Tarbuck v. Woodcock, 3 Beav. 289). And, where a solicitor appeared in Chambers both for the receiver and for a party to the suit, only one copy of the receiver's accounts was allowed on taxation, the Taxing Masters certifying it to be a general rule that a solicitor concerned for two or more parties is not allowed to charge for supplying to himself copies of documents which he has himself prepared (Sharp v. Wright, 1 Eq. 634). And, where a solicitor attended in Chambers for two parties, though in different interests, the costs of only one attendance were allowed {Brown v. Oellatly, 15 W.R. 887). Where, however, the Court, at the instance of the plaintiff, ordered the solicitor to the suitor's fee fund to appear for an infant defendant, his appearing for other defendants suing in formd pauperis did not disentitle him to the full costs of suit (Frazer v. Thompson, 1 Giff. 337). Separate sets of costs were allowed to two defendants — partners, who, after suit brought dissolved partnership and severed {Blahey v. Latham, W.N., 1888, 126; and see Stumm v. Dixon, 22 Q.B.D. 529). Different sets of costs allowed to different solicitors who by leave of the Court were employed by a defendant in distinct capacities (Woolley v. Golman, W.N. (1886) 6, 36). See RR. 39, 225. 307. Where any party submits to exceptions for insuffi- ciency, he shall pay to the excepting party twenty shillings costs if before the order of reference, and thirty shillings if before the report, unless other costs are specially certified by the Master. And, where the costs of suit are ordered to RULES OF COURT. 221 be paid to any party, the costs occasioned to him by the insufficiency of any answer to interrogatories shall be deemed to be part of such costs ; any sum being deducted therefrom which shall have been paid to him upon the exceptions being submitted to, or the answer certified to be insufficient. This R. is an extension of Cons. Ord. XL., r. 13. It only applies where the question of costs has not already been disposed of by the Court {Poole v. Gordon, 16 L.J. Ch. 265). 308. The plaintiff, having duly caused an appearance to be entered for any defendant, shall be entitled as against the same defendant to the costs of and incident to entering such appearance, whatever may be the event of the suit ; and such costs shall be added to any costs which the plaintiff may be entitled to receive from such defendant, or be set off against any costs which he may be ordered to pay to such defendant ; but payment thereof shall not be otherwise enforced without the leave of the Court. This R. corresponds with Cons. Ord. XL., r. 15. 309. Where no account, payment, conveyance, or other relief is sought against a party, but the plaintiff (or the defendant under a counter-claim) requires such party to appear to the statement of claim or counter-claim, the costs occasioned by such party having been required so to appear, and the costs of all proceedings consequent thereon, shall be paid by the party requiring such appearance, unless the Court shall otherwise direct. This R. is adopted from Cons. Ord. XL., r. 1 6, and extended to the case of a counter-claim. 222 RULES OF COURT. Persons who, having the same interest as the plaintiflfs, decline to be co-plaintiflfs, may have their costs under this E. (Abram v. Ward, 6 Ha. 170). 310. Expenses incurred in consequence of affidavits being prepared or settled by Counsel shall be allowed only when the Master shall in his discretion, and on consideration of the special circumstances in each case, think such expenses properly incurred ; and in such case he shall be at liberty to allow the same, or such parts thereof as he may consider just and reasonable, whether the taxation be between solicitor and client, or between party and party. This R. is taken from Cons. Ord. XL., r. 17. See R. 315. It does not take the question of the costs out of the discretion of the Court (see Davies v. Marshall, 1 Dr. & Sm. 364). Compare R. S. 0. (costs), VII., r. 13, 1875 [0. LXV., r. 27 (15), 1883] : — Such costs of procuring the advice of Counsel on the pleadings, evidence, and proceedings in any cause or matter, as the Taxing Master shall, in his discretion, think just and reasonable, and of procuring Counsel to settle such pleadings and special affidavits, as the Taxing Master shall, in his discre- tion, 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 oue fee for all the affidavits proper to be so settled, which are or ought to be filed at the same time. This r. (so far as regards affidavits) supersedes in England the R. in the text, but of course it is otherwise here. 311. Where a suit which stands for hearing is called on to be heard, but cannot be decided by reason of a want of parties, or other defect on the part of the plaintiff, and is therefore struck out of the paper, and the same suit 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 suit. RULES OF COURT. 223 This R. corresponds with Cons. Ord. XL., r. 21. Where it is plain on the face of the statement of claim that a suit is defective for want of parties, a defendant raising the objection is entitled, if the hearing stands over to add parties, to the costs of the day, although he may have not taken the objection by his answer {Rowsell v. Morris, 17 Eq. 20, and cases there cited). But, where defendants admitted by their answer that all persons interested were parties, and at the hearing objected for want of parties, and the objection prevailed, it was held that, having misled the plaintiff, they ought to pay him the costs of the day {Price v. Berrington, 2 Beav. 285 ; and see Wilson v. Broughton, 7 L.J. Oil. 120). As to a defect of parties through an event happening after the suit is at issue, see Sambrooke v. Hayes, 6 L.J. Ch. 258 ; Fussell V. Elvjin, 7 Ha. 29. It is the duty of a plaintiff to come fully prepared at the hearing to ask the Court for a decree ; and, if he is not so prepared, and the suit appears defective from his default, it is then a matter of discretion or indulgence to grant him leave to supply the defect (Bierdermanh v. Seymour, 1 Beav. 594). When a cause was set down as "short," and struck out, the defendants were held entitled to their costs of the day, unless they had concurred (Mellish v Brooks, C.P. Cooper, 474). See notes to E. 178. 312. Where a suit, being in the paper for hearing, is ordered to be adjourned upon payment of the costs of the day, the party to pay the same shall pay the sum of ten pounds, unless the Court shall otherwise direct. This R. is taken from Cons. Ord. XL., r. 22. 313- Where a party gives a notice of motion, and does not move accordingly, he shall pay to the other side costs to be taxed by the Master, unless the Court itself shall direct what sum shall be paid for costs. This R. is taken from Cons. Ord. XL., r. 23. 224 RULES OF COURT. As to what is an abandoned motion, see Morgan and Wurtz- burg, 65 ; as to what costs will be allowed in respect of it, see Harrison v. Leutner, 16 CD. 559. The Court has allowed the costs of an abandoned motion at the close of the seal (i.e., the time devoted to motions) — the motion presumably not having been saved — subject to the case being mentioned by the other side in the course of the day {Yetts v. Biles, 25 W.R. 452). But the usual course is to apply for the costs on the next seal after that for which notice was given (Woodcock V. Oxford, &c., Co., 17 Jur. 33; and see Wedderhii/rne V. Llewellyn, 13 W.R. 939). They must not be applied for on any later day, e.g., at the hearing, or on speaking to minutes (^Eccles V. Liverpool Borough Bank, Johns. 402). But in Selfe v. Dalgety & Co., 10 N.S.W.R. Eq. 205, where a motion had lapsed through non-appearance of plaintiflf, and the Primary Judge expressed an opinion that defendants should have their costs, but made no order to that effect, and defendants thereupon had their costs taxed by the Master, upon an application by them that plaintiff should pay their costs so taxed, it was held that the defendants were not limited to the next motion day, and that the application should be granted. Where a defendant procures a dismissal of a suit for want of prosecution, without having made a motion of which he had given notice, the plaintiff cannot after- wards obtain an order for the payment of the costs of such motion, as being abandoned {Farquharson v. Pitcher, 4 Russ. 510). A person in contempt cannot apply for the costs of an abandoned motion {Ellis v. Walmseley, 4 L.J. Ch. 461). While the costs of an abandoned motion remain unpaid, no other motion for the same purpose can be made (Bellchamber v. Giani, 3 Madd. 550 ; Killing v. K, 6 Madd. 68 ; and see Be Youngs, 31 CD. 239; He Neal, ibid. 437); but non-payment of costs of an interlocutory motion is not per se sufficient ground for ordering further proceedings to be stayed (Re Wichliam, 35 CD. 272). As to costs of an abandoned appeal, see notes to s. 70 of the Act. And see note to R. 302. RULES OF COURT. 225 ol^!. Where two or more Counsel appear for the same party, upon the hearing of any suit or matter, and it appears to the Master to have been proper for the party to retain such Counsel to appear, the costs occasioned thereby shall be allowed. This R. corresponds with Cons. Ord. XL., r. 20, with the addi- tion of the words itahcised in the text. It will be seen that, with regard to the number of counse] employed on a side, the colonial practice is more liberal than the English. Consider San- deman v. Hinton, 1 N.S.W.R 50; Goode v. Onslow, 2 N.S.W.R. 278. 315. Where costs are to be taxed as between party and party, the Master may allow to the party entitled to receive such costs all such just and reasonable expenses as appear to have been incurred in Advising with Counsel as to the institution or defence of the suit ; The service and execution of writs, and the service of orders, notices, petitions, and summonses ; Advising with Counsel on the pleadings, evidence, and other proceedings in the suit ; Procuring Counsel to settle and sign pleadings and such petitions and affidavits as may appear to be proper to have been settled by Counsel ; Procuring consultations of Counsel, and procuring the attendance of Counsel in the Master's Office where the Master may consider the case proper for Counsel to attend ; • Procuring evidence by deposition or affidavit, and the attendance of witnesses, and supplying Counsel with copies of or extracts from necessary docu- ments. 226 RULES OF COURT. 316. But, in allowing such costs, the Master shall not allow to such party any costs which do not appear to have been necessary or proper for the attainment o£ justice, or for defending his rights, or which appear to have been incurred through over-caution, negligence, or mistake, or merely at the desire of the party. These two ER. correspond with Cons. Ord. XL., r. 32, with the addition of the words italicised iu the text ; from which it will be seen that here again the colonial practice is the more liberal. R. 264 (being the latter part of Cons. Ord. XL., r. 32) has been re-adopted in England by R.S.C. (costs), Ord VI., r. 26 (1875) (see Warner v. Mosses, 19 CD. 72 ; Morgan and Wurtzburg 482). 317. Any party who may be dissatisfied with the allow- ance or disallowance by the Master of the whole or any part of any item or items in any bill of costs may, at any time before the certificate is signed, deliver to the other party interested therein, and carry in before the Master, an objection in writing to such allowance, or disallowance, specifying in a short and concise form the matter objected to, and may thereupon apply to the Master for a summons to review the taxation in respect of the same. This R. corresponds with Cons. Ord. XL., r. 33, except that a summons is substituted for a warrant. Cons. Ord. XL., r. 33, has been re-adopted by R.S.C. (costs), Ord. VI., r. 30 (1875), with a modification, the last clause reading simply, " apply to the Taxing OflGicer to review," Dated &c To E.F. solicitor 6.H. solicitor [or agent] for plaintiff defendant [or agent] for-J petitioner or respondent Here describe the documents. The description may be as follows : — Originals. defendant respondent or petitioner Description of the Documents. Date. Deed of covenant between A. B. and C. D. 1st part and E. F. of the 2nd part Indenture of lease from A. B. to C. D Indenture of release between A. B. C. D. 1st part &c Letter from defendant to plaintiff Policy of insurance on goods Bill of exchanc;e for £100 at 3 months drawn by A. B. on and accepted by C. D. endorsed by E. F. and G. H 1st Jan. 1st Feb. 2nd Feb. 1st Mar. 3rd Deo. 1878 1878 1878 1878 1878 1st May 1870 240 RULES OF COURT. Copies. Descriptions of Documents. Dates. Original or duplicate served sent or delivered. When how and by whom. Register of baptism of A. B. in parish of X 1st. .Jan. 1858 1st Feb. 1878 1st Mar. 1878 Letter from plaintiff to de- fendant Notice to produce papers Sent by General Post 2nd Feb. 1878 Seri'ed 2nd March 1878 on defendant's attorney by E.F. of- D. (Referred to in Rule 122.) Affidavit as to Production of Documents pursuant to an Ordkr. Title of suit or matter. On this day of in the year the plaintiff [or defendant] being duly sworn maketh oath and saith as follows : — 1. I say I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second part of the First Schedule hereto annexed. 2. I further say that I object to produce the said documents set forth in the second part of the said First Schedule hereto. 3. I further say {state upon what grounds the objection is made and verify the facts as far as may be']. 4. I further say that I have had but have not now in my possession or power the documents relating to the matters in question in this suit set forth in the Second Schedule hereto annexed. 5. I further say that the last-mentioned documents were last in my power or possession on [state wheri]. 6. I further say [state what has become of the last-mentioned documents and in whose possession they now are]. 7. I further say according to the best of my knowledge remembrance information and belief that I have not now and never have had in my own possession custody or power or in the possession custody or power of my solicitor or agents or solicitors or agent or in the possession custody or power of any other persons or person on my behalf any deed account book of account voucher receipt letter memorandum paper or writing or any copy of or extract from any such document or any other document whatsoever relating to the matters in question in this suit or any of them or wherein any entry has been made relative to such matters or any of them other than and except the documents set forth in the said First and Second Schedules liereto. Note. — If the party denies hailing any document, he is to make an affidavit inform of the ^th paragraph, omitting the exception. RULES OF COURT. 241 E. (Referred to in Rule 142.) 1. Form of Recohd of a Question or Questions of Fact. Title of cause or matter. By an order made in this cause [or matter] dated &o. the Court hath directed that the following question [or questions] of fact be tried by a jury before the Court itself [or before the Court itself without a jury] (that is to say) : Whether, &o. N.B. — If more questions than one, number them consecutively — 1, 2, 3, &c. 2. Form of Record for Trial as to Amount of Damages. Title of cause or matter. Whereas by an order made in this cause [or matter] dated &c. the Court hath awarded damages to in respect Of the matters in the said order mentioned and hath directed that the amount of such damages shall be assessed by a jury before the Court itself \or before the Court itself without a jury]. The question is what amount of damages the plaintiff hath sustained by reason of the matters in the said order mentioned. F. (Referred to in Bule 196.) Form of Notice op Appeal. In the Supreme Court ) of New South Wales. \ In Equity. ) Between A.B. Plaintiff and CD. Defendant. Take notice that the plaintiff [or defendant] appeals against the Decree [or Order] of His Honour the Primary Judge in Equity dated the day of 18 [or against so much of the Decree (or Order) of His Honour, dated tbe day of 18 as declares &c. or directs &c.] for the following among other grounds and reasons that is to say : — N.B. — If more than one ground, number them consecutively — 1, 2, 3, &o. I certify that this suit [or matter] is proper to be re-heard before the Full Court. A.B. Counsel for Appellants. P '} 242 RULES OF COURT. G. (Referred to in Rule 203.) Form of Summons by Master in Equity. In the Supreme Court of New South Wales. In Equity. In the matter of the estate of late of in the said Colony deceased [or .] Between A. B. Plaintiff and C. D. Defendant. E.F. of &c. [orl the Defendant CD. is hereby summoned to attend at the Equity Office of the Supreme Court, at Chancery Square, Sydney, on the day of at of the clock in the noon to be examined on the part of lor the Plaintiff] for the purpose of the proceedings directed by the Court to be taken before me. Dated this day of 18 A.T.H. Master in Equity. This summons was taken out by Messrs. B. & Co. 281 George Street Sydney solicitors for [_or the Plaintiff i. H. (Referred to in Rule 203.) In the Supreme Court of New South Wales. In Equity. (Short title of cause or matter.) I APPOINT the day of at my chambers. Equity Office Chancery-square, to [settle minutes of order of tic. or as the case may be]. Dated the day of 18 Master in Equity. I. (Referred to in Rule 235.) FoEM OP Repobt ob Certipicate of Master in Equity. In the Supreme Court of New South Wales. In Equity. Between A.B. Plaintiff and CD. Defendant. In pursuance of the Decree [or Order] made on the hearing of this Suit [or as the case may Je] on the day of 18 I have been attended by the Solicitors [or by the Solicitors and Counsel as the case may be] for both sides and I have proceeded to take the accounts and ^ RULES OF COURT. 243 make the enquiries ord6re4 by the said Decree [or Order] and I find and certify as follows : — 1. The Defendant the Executor of the Testator has received personal estate to the amount of £ and he has paid or is entitled , to be allowed on account thereof sums to the amount of £ leaving a balance due from \or to] him 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 report [or certificate] except that in addition to the sums appearing on such account to have been received the said defendant is charged with the following sums Istaie 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 madel The defendant has 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 report [or certificate] The account has been altered and the account marked which is also to be filed with this report [or certificate] is a transcript of the account as altered and passed. 2. The debts of the testator which have been allowed are set forth in the Schedule hereto and with the interest thereon and costs mentioned in the Schedule are due to the persons therein named and amount together to£ 3. The funeral expenses of the testator amount to the sum of £ which I have allowed the said executor in the said account of personal estate. 4. The legacies given by the testator are set forth in the Schedule hereto and witli the interest therein mentioned remain due to the persons therein named and amount altogether to £ 5. The outstanding personal estate of the testator consists in the particulars set forth in the Schedule hereto. 6. The real estate to which the testator was entitled consists of the particulars set forth in the Schedule hereto. 7. The defendant has received rents and profits of the testator's real estate {in a form similar to that provided with respect to the personal estate.) 8. The incumbrances affecting the testator's real estate are specified in the Schedule hereto. 9. The real estates of the testator directed to be sold have been sold and the purchase moneys amounting altogether to £ have been paid into Court. [N.B. — Above numbers are to correspond v>ith numbers in the decree.] After each statement the evidence produced is to be stated as follows : — The evidence produced on this account [or Inquiry] consists of the probate of the testator's will the affidavit of A.B. filed and paragraph number of the affidavit of C. D. filed 244 RULES OF COURT. J. (Referred to in Rule 29.) In the Supreme Court of New South Wales. In Equity. The day of in the year of our Lord one thousand eight hundred and Let all parties concerned in the matter of the within Petition attend before the Primary Judge in Equity at this Court on the day of at o'clock in the forenoon and hereof let all parties have due notice. Chief Clerk in Equity. K. (Referred to in Rule 283.) In the Supreme Court "j of New South Wales. \- In Equity. J (In the matter of thp Trust, Will, or Adrainiatration and in the matter of the Act 26 Vict., No. 12. Let all parties concerned attend at my Chambers, Supreme Court, Chancery Square, Sydney, on the day of next, at 10 o'clock in the forenoon on the hearing of an application on the part of [here state on whose behalf the application is made, and the precise object of the application]. Dated this day of 189 Primary Judge in Equity. Note : — If you do not attend, either in person or by solicitor at the time and place above mentioned, such Order will be made and proceedings taken in your absence as the Judge may think just. Master in Equity. This summons was taken out by Mr. of Pitt Street, Sydney, solicitor for the above named applicant. L. (Referred to in Rule 273.) In the Supreme Court "l tj * i jj of New South Wales. I Postal address In Equity. J "^^ ' Title of Cause {or Matter), I, the undersigned, declare that I am the person to whom the sum of £ is payable pursuant to the Decree [or Order] dated the RULES OF COURT. 245 of and made in the above Cause [or Matter]. And I further declare that I have an Account in the Bank of t and I request the Master in Equity to transmit to me by post to the above address the necessary Cheque payable to my order and specially crossed to my Account at the said Bank and marked not negotiable ; such transmission to be at my sole risk. Signed Subscribed in my presence at this day of 189 Signature of a Justice of the Peace, a Commis- sioner for Affidavits, or Notary Public. *Received from the Master in Equity this day of 189 the sum of by Cheque No. being the sum payable to me pursuant to the above mentioned Order. Witness Signed + Fill in the name of Bank. * The date of this receipt should be left blank to be filled in on the date of posting Cheque. M. (Referred to in Rule 273.) In the Supreme Court") p . , _ j j„p_„ of New South Wales. [ ^°^^^ address In Equity. j "^*^ Title of Cause (or Matter). I, the undersigned, declare that I am the person to whom the sura of £ {under £500) is payable pursuant to the Decree [or Order] dated the day of 189 and made in the above Cause [or Matter] And I further declare that I have no Account at any Bank in this Colony and I request the Master in Equity to transmit to me by Post to the above address the necessary Cheque payable to my order and crossed so as to be payable only through a Bank ; such transmission to be at my sole risk. Signed Subscribed in my presence at this day of 189 Signature of a Justice of the Peace, a Commis- sioner for Affidavits, or a Notary Public. *Received from the Master in Equity this day of 189 the sum of by Cheque No. being the sum payable to me pursuant to the above mentioned Order. Witness Signed *The date of this Receipt should be left blank to be fiUed in en date of posting Cheque. 246 RULES OF COURT. N. (Referred to in Rule 273.) In the Supreme Court ■J t> j. i jj of New South Wales. [ ^°^^^ f ^'^^^^ In Equity. j "^^ Title of Cause {or Matter). I, the undersigned, declare that I am the person to whom Interest on the sum of £ now in Court is payable half-yearly [or as the case may be) during my lifetime (or as the case may be) pursuant to the Decree [or Order] dated the day of and made in the above Cause [or Matter] and I request the Master in Equity from time to time as each payment accrues due upon receiving a proper Receipt for the same together with evidence to his satisfaction of my being alive at the date of each payment to transmit by post to the above address from time to time a Cheque therefor payable to my order and crossed so as to be payable only through a Bank ; such periodical transmissions to be at my sole risk. FREDK. M. DARLEY, C.J. W. C. WINDEYBR, J. J. GEO. LONG INNES, J. M. H. STEPHEN, J. WM. OWEN, J. W. J. FOSTER, J. C. J. MANNING, J, APPENDIX. 247 TIME TABLE. ABATEMENT ACCOUNTS . ADMINISTRATION See Money, R. 272. ADMISSION, order upon AFFIDAVITS by plaintiff by defendant . . by plaintiff in reply AMENDMENT See Suit. See Revivor, The Court may, at any stage of the proceed- ings in a suit or matter, direct any necessary inquiries or accounts, &c., R. 123. Where a decree or order is made directing an account of legacies, interest shall be com- puted on such legacies at the rate of 4 per cent, per annum /rom the tndof\year after testator's death, unless the Court otherwise order, R. 234. Any party to » suit may at any stage apply by motion on notice [16 days, R. 124] to the Court for such order upon any admission of fact as he may be entitled to, R, 28, Before amy affidavit is vsed in Court or before the Master, it should be first filed in the Equity Office, R, 19. All affidavits to be used in support of any motion for a decree or decretal order under s. 28 should be filed before service of notice of such motion, and a list thereof should be set forth at foot of notice, R, 125, The defendant, wUhin 10 days after service, should file his affidavits in answer, and deliver to the plaintiff a list thereof, R. 126. Within 4 days after the expiration of the 10 days mentioned in R. 126, or other enlarged period, the plaintiff should file his affidavits in reply, and deliver to the defendant a list thereof, R. 127. The Court may, at any stage, allow either party to alter his statement of claim, or defence, or reply, R. 151. 248 APPENDIX. AMENDMENT (continued)— The plaintiff may, without any leave, amend his statement of claim once, at amy time before expiration of time limited for replying and before replying, or where no defence is filed, at any time before the ccpiration of 4 weeks from the appearance of the defendant who shall have last appeared, R. 152. after set-off or counter- claim Where set-off or counter-claim is pleaded, amendment may be made without leave any time before expiration of time for pleading to reply, or if no reply, then before expiration of 21 dobys from filing of defence, K. 153. application to disallow . After amendment under E. 152 or 153, the opposite party may, within 8 days after filing amended pleading, apply to Court to disallow such pleading either entirely or in part, R. 154. pleading to amended pleading Where any party has amended his pleading under R. 153 or 154, the opposite party should plead to amended pleading or amend his pleading within the time lie then has to plead, or within 8 days from the delivery of the amendment, whichever shall last expire, R. 155. leave to amend in other cases In all eases not otherwise provided for, appli- cation for leave to amend any pleading may be made by either party to the Court, and either before or at the trial of the cause, R. 156. when leave to amend becomes void .... If leave to amend has been obtained, and advantage has not been taken of such within time allowed, or within 14 days from leave, such leave becomes void, unless extended, R. 157. APPEAL to Full Court . . Appeal to Full Court from any decree or order under s. 70 must be made within 14 days next after the pronouncing of the same, or within extended time, E. 196. respondent's notice. . . Respondent intending on hearing of an appeal to contend that the decision of the Court below should be varied or altered must give notice within 14 days from service of appellant's notice of appeal, R. 197. APPENDIX. 249. APPEAL (continued)— lodging copies of plead- ings, order, &c., ap- pealed from in Equity Office In appeals to the Full Court, the moving party, unless otherwise ordered, should lodge in Equity Office, within 28 days after the filing of the notice of appeal, seven printed copies of pleadings, evidence, de- cree, or order appealed from, and judgment of Judge, and should, within like time, also serve a like number of said printed copies on each opposing party, or upon each solici- tor, on the record, R. 199. time for entering appeal . Every appeal should hereafter be set down for the first day fbr the hearing of appeals in Equity, next after the making of the deposit or giving the security required, unless otherwise ordered ; and every appeal not so entered will be deemed to have been aban- doned, R. 198. from Master See Report. APPEARANCE . . default of appearance . Appearance must be entered by a defendant within the jurisdiction, who resides within 100 miles of Sydney, within 8 days; if above 100 miles and less than 200 miles, within 12 days; and if above 200 miles, within 16 days, after service, R. 66. When any defendant, not being an infant or person of unsound mind unable of himself to defend the suit, does not enter an appear- ance thereto within the time limited by indorsement, plaintiff may, after 7 days from time so limited for appearing thereto, apply to Court for decree against such defendant in his absence, R. 72. A defendant, notwithstanding his default of appearance, may at any time apply to Court for leave to appear and defend, R. 73. Where any defendant is an infant or a person of unsound mind not so found by inquisition or declared under the Lunacy Act of 1878, the Court may upon application of plaintiff order that one of the solicitors of the Court be assigned guardian of such defendant by whom he may appear to and defend the 250 APPENDIX. APPEARANCE (continued)— suit, but not unless notice of such applica- tion was after the expiration of the time allowed for appearing and at least 6 clear days before the day in such notice named for hearing the application, served upon the person in whose charge such defendant was, E. 74. ARREST on writ of attach- ment The Sheriff should bring to the bar of the Court every person arrested upon any writ of attachment ore the first day on which the Court sits in Equity next after such arrest, or as soon afterwards as practicable, R. 20. In case of continued disobedience of the rule, decree, or order for a period of 8 days after discharge, the Court may order a fresh attachment to issue, R. 21. Where a party is in prison under an attach- ment, and is not brought to the bar of the Court within 30 days, he shall be dis- charged ; but in case of continued disobe- dience of the rule, decree or order for a period of 8 days after such discharge, the Court may order a fresh attachment to issue, R. 22. CERTIFICATE See Report. CLAIM, statement of . . . See Amendment. CONSENT MATTERS . . See Suit. CONVEYANCE, settling of . When the Master is ordered to settle any conveyance, in case the parties differ about the same, a statement in writing of the required alterations shall be served by the parties objecting to the draft on the party by whom the same was prepared within 8 days after the service of notice of leaving such draft with the Master, R. 245. COSTS Where costs are to be taxed in case the par- ties differ, the party claiming the costs should bring the bill of costs into the Equity Office, and give notice thereof to the other party; and at any time loUhin 8 days of such notice, such other party may inspect the same, R. 323, review of taxation of . . At any time before certificate signed applica- tion may be made to the Master for a, summons to review, R. 317. APPENDIX. 251 DECREE, drawing up of . under s. 28 failure to prosecute No decree or order should be drawn up with- out the leave of the Court after 6 mo»- J.- I, ivT i. ^ ,. [Master, in, 183 Directions by Master as to proceedings, under decree, 180 181 Entries under, in Master's book, 180 ' Evidence on, 49 further, 183, 184 Proceedings on, to Master, by summons or appointment, 180 Refusal by Master to carry out, 183 Scientific persons, &o., to, for report, 179 Reoistbae, Duties of may be discharged by Deputy Registrar, 105 Rehearing, Appeal is by way of, 82 Directed, when, by Judge, 90 INDEX. 285 Relatob, Written authority of, to be filed, 11 Relief, Defendant seeking, as well aa discovery should institute a cross- [suit, or deliver a counter-claim, 22 To be specifically stated in statement of claim, 5 Replication, Filing of, is joinder of issue, 29, 149 Not necessary, where motion for decree is pending, 27 Reply, Default of plaintiff in filing, 149 General denials in, not sufficient, 138 Time for, 140 Report. See Certificate. Master, of, 76 form of, 91, 242 how reviewed 77, 193 Repeesentativb, Absence of personal, 7 Res Judicata, raised in statement of defence, 137 Respondent, Cross-appeal by, 87, 178 costs of, 88 Rbstbaint, Of trade. See Injunction. Review, Master's certificate of, 77, 193 Taxation, of, 226-229 Revivor, Application by defendant before decree for dismissal or, 163 Proceedings on, 69-72, 160-163 Rights, Future, declaration as to, 49 Rules, Construction of, 98 Meaning of words in, 100 Parliament, to be laid before, 92 Power of Judges to make, 91 Practice in other jurisdictions affected by Equity, 97 Rescinded, 97 Time of operation of, 231 Title of, 231 Sale, Application for, mode of, 59 Mortgaged property of, directed instead of foreclosure, 54 form of order, 57 Approbation of Master to, 196 Auctioneer for, 196 affidavit of, as to, 196 how appointed, 196 Conveyance, settling of, 195 Leave to bid at, not necessary, 197 Saturday, Service of proceedings on, 216 286 INDEX. Scale of Fees, &c., 231 Scandal, Authority of Master to expunge, 185 Distinction between impertinence and, 23 Exceptions for, 21 Striking out of pleading, &c., 118, 156 Schedules, To Act, 94, 95 Rules, 236-246 Scientific Persons, Assistance of, may be obtained by Judge, 46 Seal op Coubt, Decrees and writs to be sealed with, 102 Secbbities. See Funds in Couet Security. See Costs. Appeal, on, 79, 178 Married woman, by, 114 Plaintiff, out of jurisdiction, 126 how to be given, 127 Receivers, by, 197 Time for giving, not to be computed, 128 Until given, further proceedings not to be taken without leave, [126 Sequestration, Writ of, 177 Service, Address for, 112, 123 ^ Amended pleadings, of, 161 Decree, of, with proper memorandum endorsed, notice [of, 6, 171, 172 Decree, of, to have effect of issue of writ of injunction, 69 to enforce 175, 176 Notice of appeal, of, 82 Party, upon, how made, 112 substituted, 83 Pleadings, &c., of, on opposite party, 103 Solicitor, upon, 112 Statement of claim, of, 12, 122 out of jurisdiction, 122 Subpoena, of, 113 Summons, of, may be dispensed with by Master, 104 proof of, before Master, 184, 185 Set-opp, 17, 137, 163. See Counter-claim Settled Account, admitted by Master, 58 Shares, Stop order as to, 201 Sheriff. See Attachment. Duties of. 111 precepts to, for attendance of jury, 36 Short Matter, 151 Shorthand- writer, Evidence taken by, 29, 153 Notes of, costs of, 153 primd facie proof, 153 INDEX. 287 SrONATHRB, Notice of appeal, of, 177 Pleadings, of, 118 SOLICITOK, Abatement to be certified by, 103 Acting without authority, 11 Address of, 121, 123 Assigned by Court, 117 By leave of Master may engross or copy decree, &o. , 187 Cannot act for more than one party, 112 Change of, by order of course, 73 Costs of, appearing for two or more defendants, 219 when appointed guardian ad litem, 217 Fees allowed to, 231 Master may require parties to be represented by a distinct, 186 Neglect of, to attend, 112 personally liable to pay costs in case of, 112 No fee can be taken by, in pauper suit, 117 Service upon, when good, 112 When assigned guardian to defend, 123 Specific Pbrfobmance, Damages in addition to, &o., 29, 34 State oi' Facts, Procedure by, 57 Statement op Claim, Address to be endorsed on, 121, 122 Amendment of, 13, 156-161 Delivering copies of, 12 Dismissal of, on application by plaintiff, 170 on default by plaintiff, 170 Endorsement on, 12, 94, 120 Exceptions to, for scandal, allowed, 23 Facts in, admitted by not filing statement of defence, 16 Filing of, 5 effect of, 12 Form of, 5, 119, 236 Relief claimed to be specifically stated in, 5 Service of, 12, 122 substituted, 122 Signature of, by counsel, 118 Supplemental, after decree, 72 Statement of Defence, Admits facts in claim, when not filed, 16 Affidavit, treated as, on motion for decree, 27 Concealed fraud, pleaded in, 137 Copy of, to be served, 103 Corporation, of, 135, 136 Counter-claim in, 17, 137 Erasures in, 103 Exceptions to, for scandal, allowed, 23 General denial in, not sufficient, 138 Filed how, 102 Form of, 16, 137, 238 Particulars to be delivered with, ih patent case, 136 Purchase without notice must be specifically alleged in, 137 Bes judicata, how raised in, 137 Service of, on opposite party, 103 Signature ofj by counsel, 118 288 INDEX. Statement op Defence f continued J — Verified on oath, 15, 135 Time for filing, 14, 135 Statehents, Supplemental, how and when to be made, 72, 162 Statute, Frauds, of, how pleaded, 130 Limitations, 130 Statutoby Declakation, Included in affidavit, 93, 100 Statutosy Jurisdiction, Proceedings under, 209, 215 Stay op Proceedings, Appeal, on, 88 For non-compliance with discovery order. 144 Stop Orders, 201, 203 Application for, by petition or motion, 202- Striking Out, Pleadings, 118, 156 application for, 156 costs in case of, 156 discretion of Court as to, 157 embarrassing, 156, 157 prejudicing, 156 scandalous, 156 SUBP(ENA, Correction of error in, 113 Examination, for, of witness, 48 Form of, 113 How sued out, 113 Production, for, of any deed, instrument, ifec, 47 Service of, 113, 114 affidavit of, 114 Substituted Service, 122 Suit, Abatement of, 69 entry of, 103 Costs of, include costs of amendment, &c., 218, 219 Defective, 169 Discovery, for, by defendant, 21 Dismissal of, for want of prosecution, 26, 146, 147 Hearing, setting down for, 150 further directions, 173 In formd pauperis, 116-118 Revivor of, 69, 161-163 Struck out of Suit Book, when, 103 Suit Book, Entry of abatement in, 103 Suit to be struck out of, when, 103 To be kept in Equity Office, 101 Summons, Master, before, on reference, 180 form of, 242 peremptory, 182 INDEX. 289 Summons (contiimed) — Proof of service of, 184, 185 Proceeded with ex parte, when, 182, 183 Review of, proceedings on, before Master, 183 Signed how, 102 To be served two clear days, 184 Supplement, Directions as to form of, 162 Surcharge, 187 Taxation, Certificates of, 105 Costs of, 75, 225, 230. See Costs Taxing Opficee, Duties of, when discharged by Deputy Registrar, 105 Telegram, Notice of injunction by, 69 Teste, Of writs, 102 Time, Allowance of, in respect of distance, 215 Answer to interrogatories, 142 Appeal, for, 177 extension of, 80, 81 Enlargement or abridgment of, by Court, 215 Master, 216 Exceptions to answers, 143 Month means calendar month, in computation of, 216 Number of days, how to be computed, 216, 217 Operation, of, of rules, 231 Table of, 247 Vacations, during, does not run, 217 Writs, service of, 215, 216 Title, Proceedings, of, 101 under statutory jurisdiction, 210, 215 Trade, Restraint of, injunction in case of, 67 mark, 68 name, 68 Transcript, Privy Council, to, 91 Treasurer, Colonial, forms, &c., approved by, 244-246 interest on deposits allowed by, 203 receipts by, 204 Trespass, Injunction to prevent, 61 Trial, Application for new, 36, 37 Cause, of, evidence on, 29 Jury, by, 34-39, 154-156, 241 New, discretion of Court as to granting, 35 Trust, Representation of parties in suit for execution of, 5 Trustee, " Affidavit by, on payment into Court, 210 ■290 INDEX. Trdstee (continued) — Application by, as to payment out, 211 Appointment of new, 215 costs of, 215 Consent of, to act, 214, 215 Decree for administration of estate or execution of trusts against [one legatee, dec, 6 Petition by, for opinion, &c. , of Judge, 212 costs of, 215 Reference to Master to appoint, 186 Remuneration to, 212 Represents cestui que tru^t, 7 Tbustee Relief Act, 209-211 Trust VEOPEETy Act, 212 Unsodnd Mind. See Litnatic. Vacations, Time during, does not run, 217 Verdict, Judge, of, without jury, on trial of issues, 37 Jury, of, 35, 39 Vouching, Accounts, of, 188 Waive B, Conditional decree, of. 173 Irregularity, of, 53, 82 Waste, Injunction to prevent, 61 Way. See Injunction. Wilful Default. Allegation of, in accounts, 148 Witnesse,s, Abroad, examination of, 45 Attendance of, how compelled before Court, 47 Master, 75 Commission to examine, 43, 153 Costs of production of, 39 Cross-examination of, 41 Subpcena for, 47. See SuBPOSNA. 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