j\i?Bi^^^m^ ■ipj^\j^\i\j\ dJM WB^sJ^ Tra'WiW ^i^PY^i )wg^^\ j*v^«M«yu^\ ^\j^yu. >.ww^ggggWww^.S2^R^^^ l^Ssm^'^m. W^m^ ;yt^^v^VW yvvvvoi immmmm^ '^m^^mi '^^'ymMmm 'V\^VUl CUnrttpIl Cam ^rlinnl ICtbrarg MtLVsifuU iEqmtg (Cnllerttott (Sift 0f iE. 31. iiaraliaU. ffi.E. 1. 1B94 CORNELL UNIVERSITY LIBRARY 3 1924 084 259 997 Cornell University Library The original of tliis 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/cu31924084259997 THE PEAOTIOE OF THE CHANCERY DIVISION OF THE (INCLUDING THE WINDING-UP OF COMPANIES), AND ON APPEAL TO HER MAJESTY'S COURT OF APPEAL AND fr^ne: E'v^isrs, esq., OF LINCOLN'S-INN, BAKBISTBB-AT-IiAW. LONDON : HORACE COX, - THE LAW TIMES " OFFICE, 10, WELLINGTON-STEEET, STRAND, W.O. 1881. LONDON : PSINTED BY HOBACE COX, 10, WELLINaTON-STBBET, STEAND, W.C. \SNt ^^> DEDICATED BY PEEMISSION TO THE RIGHT HONOURABLE SIR WILLIAM BALIOL BEETT, KNT, LORD JUSTICE OF HER MAJESTY'S COURT OF APiPSAL. PREFACE. No one who has been required to assist in carrying out the old practice in conjunction with the new can have failed to experience considerable difficulty in putting his hand promptly upon the several Acts and Orders illustrated and explained by decided cases which are scattered without much order over the pages of the ordinary text-book. It occurred to the designer of this work that to apply to practice the arrange- ment of Crump's Law of Marine Insurance would conduce to simplicity and facility of reference. It is felt that this attempt is more or less an experiment: it is hoped that it may be a successful experiment, and that it may be a step in the direction of codification. F. 0. Okump. a. h. potsek. Frank Evans. PREFACE TO PART I. In this Yolume the "statutes, rules, and orders are generally set out verbatim. Where alterations have been necessitated, as in the case of statutes, &c., passed before the Supreme Court of Judica,ture Acts, the words which are not actually part of the original enactment or rule have been inclosed in square brackets, thus [the Act] . The decisions are brought down, in the Addenda, as far as they are reported or npted up to and including Saturday, the 19th February, 1881. The Author expresses his acknowledgment for the kind assistance rendered to him by Henet Fellows (who has revised the proofs on certain points), Bdwaed Egeemont Sutton, Lewis Boyd Sebastian, and Edwaed Aethue ScEATCHLET, Esquires, all of Lincoln's Inn, Barristers-at- Law. FRANK EVANS. 21, Old-square, Lincoln's Inn, 24th Feb., 1881. TABLE OF TITLES. ABSTRACT OP TITLE, fage 1 ABUSE OP PROCESS, 2 ACCOUNT, 3 ACKNOWLEDGMENTS, 15 ACTION, 16 ADDING TO JUDGMENT [see Jtjdqment] ADMINISTRATION ACTION, 18 ADMINISTRATION ON SUMMONS, 37 ADMINISTRATION UNDER SIR GEORGE TURNER'S ACT, 41 ADMINISTRATOR [see Administration Action ; Parties ; Trustees] ADMISSIONS, 45 AMENDMENT, 45 ANSWER [see Discovbbt] APPEAL, 46 APPEARANCE, 81 APPOINTMENT OF TRUSTEES [see Trustees] APPORTIONMENT OP FUND, 88 ' ARBITRATION, 88 ARGUMENT, 101 ARREST, 101 ASSESSORS [see Tbiai] ASSIGNMENT OF DEBTS AND CHOSES TS ACTION, 108 ATTACHMENT, WRIT OF [see Execution, XX.] ; OF DEBTS [see Execu- tion, XVIII.] BILL OP EXCHANGE, 109 BILL OF SALE, 109 BOUNDARIES, 112 BURIAL ACTS [see Charities] CANCELLATION, &c., OF INSTRUMENTS, 113 CAUSE OF. ACTION [see Writ of Summons] CENTRAL OFFICE, 114 CERTIORARI, 119 CESTUI QUE TRUST [see Parties, Trustees] CESTUI QUE VIE, PRODUCTION OF, 124 CHAMBERS, 126 ~xii Table of Titles. ■ CHARGE, 144 CHAEGIN;G order [see Co^TS ; Execution] CHARlGUNG STOCK, 144 CHARITIES, 146 CHOSE IN ACTION [see Asbiqnment of Dijbt] COMMITTAL [see.AEEEST; Execution] 'COMPANIES, 170 COMPROMISE, 191 COISTDITIONS OF SALE [see PBOPEKir] CONFIRMATION OF SALES, &c., 193 ' CONSOLIDATION, 195 CONTEMPT OF COURT [see Abbest] CONVEYANCING COUNSEL, 196 COPIES, 198 COPTHOLD.ACTS, 200 - COSTS, 203 .COUNTER-CLAIM [see Pleading] COUNTY COURTS, 253 COUNTY DEBENTURES ACT, 256 gUSTODY OF INFANTS [see INEANTS] declaration of eight, 256 declaration; of title, 257 DECREE [see Judoment] . DEEDS, 265 DEFENCE ACTS, 266 discontinuance and withdrawal, 270 DISCOVERY, 271 disentailing DEED [see Peotectob of Settlbiibnt] DISMISSnSfG ACTION, 290 DISTRICT REGISTRIES, 290 DISTRINGAS, ON STOCK [see Chabsing Oedek] ; NUPER VICE- COMITEM [see Execution] DIVISIONAL COURTS, 296 DOCUMENTS [see Admissions ; Discovery ; Evidence] ECCLESIASTICAL ESTATES, 297 ELEGIT [see Execution] ENROLMENT OF DEEDS [see Central Office ; Charities] EQUITABLE RULES, 299 EQUITY TO SETTLEMENT [see Maebied Women] EVIDENCE, 302 EXECUTION, 337 EXECUTOR, 373 EXHIBIT [see Evidence] EX PAEXE APPLICATION, 373 EXPERIMENT [see Property] EXPERT, 374 EXTENSION OP TIME [see Time] FEES, 374 Table of Titles. FIERI FACIAS, OEDINAET, AND DE BONIS ECCLESIASTICIS [see EXBCtTTION] FIRM [see Ap^eabance ; BiscotbBt ; Wbit of Sumhons] FOLIO, 389 FORECLOSURE, 390 FOREIGN LAW, 400 FOREIGN SOVEREIGN [see Pabttes] FORMER PRACTICE, 404 FORMS, 405 FURTHER CONSIDERATION, 406 GARNISHEE [see Bxeccttion] GOODS, 411 GRAMMAR SCHOOL [see JQhabities] GUARDIAN [see Infants ; Lttnatics ; Parties ; Settled Estate-! ; Tettstees] HOUSE OP LORDS [see Appeal] IMPRISONMENT [see Aebbst ; Execution] IMPROVEMENT OP LAND, 413 INCLOSURE ACT, 416 INFANTS, 417 INJUNCTION, 431 INQUIRIES, 438 INSPECTION [see Discotebt] INTERLOCUTORY PROCEEDINGS, 440 INTERPLEADER, 441 INTERPRETATION, 445 INTERROGATORIES [see Discovert] INVESTMENT, 447 IRREGULARITT, 447 ISSUES, 448 JUDGMENT, 448 JUDICIAL OPINION [see Tbustbes] JURISDICTION, 489 JURY [see Trial] KEEPER OF RECORDS [see JuBispiCTiON, IV.] LANCASTER PALATINE COURT, 496 LAND [see Recovery of Land] LANDS CLAUSES ACT, 497 LAND TAX REDEMPTION ACT, 617 LAND TRANSFER ACT, 187S, 519 LAW AND EQUITY [see Equitable Rules] LEASES, 526 LEAVE TO ATTEND PROCEEDINGS [see Judoment, XVI.] LEAVE TO DEFEND, IN LAND ACTIONS [see Appearanch, IX.] ; WHERE WRIT SPECIALLY INDORSED [see JuDCtmENT, III.] LEGACY DUTY ACT, 527 LETTERS PATENT [see Jurisdiction ; Patents] LIBERTY TO APPLY [see JuDaMBNT, XVII.] xiv Table of Titles. LIEN, 528 LIFE ASSUEANCE COMPANT, 529 LIS PENDENS, 529 LOCAL LOANS ACT, 530 LORD MAYOR'S COURT [see Matoe's Couet] LORD ST. LEONARD'S ACT [see Confiemation of Sales, &c., II. , Xettsteeb] LUNATICS, 530 MAINTENANCE [see Infants ; Lunatics ; Maebied Women] MANAGEMENT OF PROPERTY [see Infants ; Peopeett; Teustees] MAJTOAMUS, 532 MARRIAGE, OF PARTIES [see Paeties] ; OF GUARDIAN [see Infants, II., 5] ; OF INFANTS [see Infamts, II., V.] ; SETTLEMENTS [see Infants, II. ; VI., 7] MARRIED WOMEN, 534 ; MASTER [see Centbal Office] MAYOR'S COURT, 538 MEMBER OF PARLIAMENT [see Abeest, III.] MERCHANT SHIPPING ACTS, 540 MESNE PROFITS [see Recoveet of Laud] METROPOLITAN BOARD OF WORKS LOANS, 541 MILITARY FORCES LOCALISATION, 542 MINERALS [see Confiemation of Sales; Infants, VI., 6; Settled Estates] MONEY [see JuDaMENT; Payment into and out of Couet ; Wbit of Summons] MORTGAGE, 543 MORTGAGE DEBENTURE ACTS, 543 MOTION, 545 MULTIPLICITY [see Equitable Rules] MUNICIPAL CORPORATIONS ACT [see Chaeities] NATIONAL DEBT ACT, 558 NE EXEAT REGNO [see Aeeest, II., 2] NEW TRIAL, 555 NEW TRUSTEES [see Teustees] NEXT FRIEND [see Pabties ; Costs] NONSUIT [see Judqment; New Teial] NOTICES, 562 OATHS [see Evidence] OFFICE COPIES [see Copies ; Evidence] OFFICES [see Centeal Office; Sittings ; Time] ORDERS, 562 PALATINE COURT [see Jueisdiction : Judoment, XXV ] PARLIAMENTARY BILL, 563 PARLIAMENTARY DEPOSITS [see Companies, XI.; Payment into and out of Couet] PARTICULARS, OF PLEADING [see Pleading] ; OF SALE [see PeopebtyI PARTIES, ."ifia «upbbtyJ Table of Titles. ^xv PAETITION, 604 PAETNEBS, 618 PASSING JUDGMENT OR OEDEE [see Judoment, XV.] PATENTS, 623 PAUPEES [see Lunatics ; Parties] PATMENT INTO AND OUT OF COUET, 625 PENDING PEOCEEDINGS [see Jueisdiction] PEEPETUATING TESTIMONT [see Evidence] PETITION, 671 PETITION OF EIGHT, 677 PLEADING, 684 POLICIES OF ASSUEANOE, 723 POETIONS, 723 POSSESSION, WEIT OP [see Exbotjtion, XXII.] ; PLEADING POSSESSION [see Ebcovbbt of Land] PEESEEVATION OP PEOPEETT [see Peopebtt] FEINTING, 724 PEIVATE HEARING, 725 PEOCEEDS OF CHARGED PEOPEETT, 725 PEODUOTION, OP CESTUI QUE VIE [see Cestui Que Vie]; OF DOCUMENTS [see DisoovEet ; Evidence] PEOHIBITION, 726 PEOPEETT, 728 PEOPEETT LAW AMENDMENT ACT [see Infants ; Lunatics ; Maeeibd Women] PEOSECUTION OF DIEECTOES [see Windin&-up] PEOTECTOE OP SETTLEMENT, 744 QUESTIONS, OF PACT [see Teiai.; Eepeebes] ; OF LAW [see Intek- pleadee; Special Case; Teiai.] EAILWAT COMPANIIB [see Companies; Lands •Clauses Act; Wind- INO-UP] EEAL ESTATE, 745 EECEIVEE; 746 EECOVEET OF LAND, 755 > EECTIFICATION OP INSTEUMENTS [see Cancellation, &c., of Insteu- MENTS] EEDEMPTION, 760 EEDUCTION OF CAPITAL [see Companies, VIII.] EEFEEEES, 766 EEGISTEIES [see District Eeqisteies] EEHEAEING, 774 REMOVAL OP ACTION [see Ceetioeari ; Transfer] RENEWAL OF LEASE, 774 EEPLT [see Pleadino, X. ; XIL] EESTEAINING OEDEE, 775 EEVIEWING TAXATION [see Appeal, IV.] SALE [see Propbrtt, VII., Vm.] SAMPLES [see Discovert, VI.] xvi^ Table of Titles. SCANDAL [see Chambees; XX. ; DisoovBEr, II. ; Evidence, III., 10 ; , Plbadino] SEAECH, 777 SEQUESTRATION [see Execution] SETTLED ESTATES, 777 SETTLEMENT, OF PROPEETT [see Infants; Mabeibd Women]; OP DEEDS [see Deeds] ; OP ISSUE [see Issues] SET-OPP [see Pleadino, VH.] SEVERANCE, 804 SHARES, CHARGING ORDER [see Ohargino Stock; Execution, XIX.]; RESTRAINING DEALINGS [see Ebsteaining Oedbe] SHIP [see Meechant Shipping Acts] SHORT CAUSE, 805 SHORTHAND NOTES [see Costs, HI., 2 ; Appeal] SHOW CAUSE [see Motion, VH.] SITTINGS, 806 SOLICITORS, 807 SPECIAL CASE, 829 SPECL&L JURY [see Trial] SPECIFIC PERFORMANCE, 833 STATING PROCEEDINGS, 844 STOCK [see Chaeoino Stock ; Execution, XIX. ; REStEAXNiNa Oedee ; Trustees] STOP ORDER, 851 SUBPOENA [see Evidence, II., 6 (e)] SUMMONS [see Chambers; Weit oe Summons] TAXATION OP COSTS [see Costs, IV., V.] TERMS [see Time, II.] TEST ACTION [see Consolidation] THIRD PARTY NOTICES [see Pleading, XVI.] . TIME, 854 TRADE MARKS, 856 TRANSFER, 864 TRIAL, 875 TRUSTEES, 893 UNCLAIMED STOCK [see National Debt Act] UNSOUND MIND, PERSONS OF [see Lunatics, II.; Parties ; Weit or Summons; Apjpeaeancb; Judgment] VACANT POSSESSION [see Recoveet op Land, III.] VACATIONS, 943 VENDITIONI EXPONAS [see Execution, XV., 1] VENDOR AND PURCHASER, 944 VENUE [see Teiai,, VIII.] VERDICT [see Trial, XI. ; New Trial] VESTING ORDER [see Trustees, TV.] WA;NT OP PROSECUTION [see Dismissing Action ; Judgment, II., 2 (a) (c), and 4 ; Discoveet ; Costs, I., 1 (j)] WARD [see Infants, II.] TMe of Titles. xvii WINDmG-UP, 947 "WITHDRAWAL [see DiscONTiNnANCB and Withdrawal] WITNESS [gee Evidence ; Tbial] WEIT, OF ASSISTANCE [see Execution, XXIII.] ; OP ATTACHMENT [see Execution, XX.] ; OF CEETIORAEI [see Cebtiobabi] ; DE CON- TDMACB CAPIENDO [see Judombnt, XXV., 1 (c)] ; OF DELIVEET [see Execution, XXIV.] ; OF DISTRINGAS NUPEE VICE COMITEM [see Execution, XV., 1] ; OF ELEGIT [see Execution, XIV.] ; OP PIEEI FACIiS [see Execution, XIII.] ; OP FIERI FACIAS DE BONIS ECCLESIASTICIS [see Execution, XV., 3] ; OP INQUIET [see Inquiries, II.] ; OP MANDAMUS [see Mandamu's] ; OP NB EXEAT EEGNO [see Abbbst, II., 2] ; OF POSSESSION [see Execu- tion, XXII.] ; OP PEOHIBITION [see Pbohibition] ; OP SEQUES- TEAEI FACIAS DE BONIS ECCLESIASTICIS [see Execution, XV., 3] ; OF SEQUESTEATION [see Execution, XVII.] ; OF SUBPOENA [see Evidence ; Solicitobs, IV.] ; OF SUMMONS [see Writ or Summons] ; OP VENDITIONI EXPONAS [see Execution, XV., 1]. WEIT OP SUMMONS, 997 TABLE OF CASES. Abbott, ex parte, (Add.) 35Q, (Add.) 351 Abud T. Eiohea, 363 Accident and Marine Insurance Com- pany V. Maoarty, 205 Adair, re, 786 Adair v. Tonng, 66 Adama's Settled Estates, re, 800 Adams, re, 515, 920 Agar v. Fairfax, 607, 617 Agar-EUis, re, 420, 424 Aird, re, 24, 851 Aitken v. Dnnbar, 458, 467 Aldborongh v. Burton, 204 Alexandra Palace Company, Be, (Add.) 273 Alhusen t. Labonohere, 273, 275, 277, 278 Alison's Trusts, re, 421, 496 Allan V. United Ejngdom Telegraph Company, 481 Allen, re, 816, 935, 940 Allen T. Bone, 815 V. Dnke of Hamilton, 319 T. Kennet, 756 Ambroiae v. Evelyn, 459, 704 Amenny v. N^awab of Bengal, 461 Amos T. Chadwiok, 195, 196 Ampthill, The, 747 Anderson v. British Columbia, Bank of, 272, 273, 279, 284 Anderson v. Fellier, 560 V. Welaby, 67 Andrews, re, 786 V. Stewart, 461 AngeU V. Baddeley, 442 Angelo, re, 905, 915 Anglo-French Co-operative Society, 108 Anglo-Italian Bank v. Davies, 353, 460 V. WeUa, 462 Anglo-Virginian Freehold Land Com- pany, re, 957 Anitoymona, (Add.) 813 Anstey v. North and South Woolwich Subway Company, 279 Anthony v. Halatead, 556 Archer v. Dowsing, 661 Arkwright v. Newbold, 207 Armitage v. Elworthy, 24, 378 V. FitzwiUiam, 277 I Armatrong, re, 919 Arnold, re, 740, 836 Arrowsmith, re, 906, 917, 923 Artisans' and Labourers' Dwellings Im- provement Act, re, 515 Artistic Colour Printing Company, re, 850 959 Ashley V. Taylor, 275, 547, 548, 595, -596, 600 Aahmead'a Trusts, re, 653, 554 Aahton v. Shorrock, (Add.) 103, (Add.) •551 Ashworth v. Outram, 55, 369 Askew V. Woodhead, 507, 516 Aslatt V. Mayor of Southampton, (Add.) 433 Aaquith v. Molineaux, 876 Associated Home Company v. Which- cord, 717 Association of Land Financiers, re, 961, 970 Astley T. Mieklethwait, (Add.) 33 Aston V. Hnrwitz, 1001 V. Meredith, 801 Atherley v. Harvey, 273 Atkins' Estate, re, 503, 595 Atkins V. Palmer, 312 V, Taylor, 456, 483, 693, 700 Atkinson v. Ellison, 100, 101 Attenborough v. London and Saint Katherine's Dock Company, 443, 717 Attorney, re, 812 Attorney-General v. Constable, 432 V. Council of Bir- mingham, 437, 591, 593, 691 V. Dean of Man- chester, (Add.) 154 V. Great Eastern Railway Coifapany, 59 • V. London and North- Western Eailway Company, 549 ' V. Metropolitan Dis- trict Eailway Company, 325 V. Moass, 447, 696 ■ V. Shrewsbury Bridge Company, 694 ■ V. Swansea Improve- ment Company, 66 V. Tomline, 192 - V. Waring, (Add.) 426 Armston, re, 942 h 2 Attwood V. Chichester, 483, 584, 585 V. MiUer, 707 Augnstinus v. Nerinckx, XX Table of Oases. Austin V. Amhurst, 502 V. Jackson, 622 Aylea v. Cox, 913, 924, 926, 930 Aynsley v. Glover, 433 Bache, re, 920 Back V. Hay, 878, 885 Backhouse v. Charlton, 391 Bacon v. Bacon, 285 v. Turner, 1010 • Bftdoook, re, 906, 908, 926 Bagnall v. Carlton, 285, 359 Bagot V. Baston, 695, 708, 711, 1102 BaUe V. BaUe, 823, 824 Bailey v. BirchaU, 823 Bailie's Trusts, re, 59 Baines v. Bromley, (Add) 209 Baker v. Oakes, 208 V. Wait, 870 T. Wood, (Add.) 433 Ball V. Kemp-Weloh, 617, 618 Ballard v. Shutt, 844 Balmtorth t. Pledge, 558 . Banco de Portugal, ex parte, 65, 774 Banco de Portugal v. WaddeU, (Add.) 76 Banister, re, 197, 738 Bank of Montreal v. Cameron, 460 Bank of Whitehaven v. Thompson, 1013 Banker's case. The, 678 Banque Pranoo-Egy ptienne v. Lutsoher, 806, 308 Barber, ex parte, 622 Barber, re, 941 Barber v. Maokrell, 15, 26 Barker, re, 23, 920 Barker v. Cox, 835 v. Hemming, (Add.) 232, (Add.) V. Peile, 898 Barnes v. Addy; 827 Bamicott v. Harris, 276, 705 Barraclough v. Greenongh, 332 Barrett v. Hammond, 364, 866 Barriok v. Buba, 308 Barrows, re, 863, 864 Bartholomew, re, 941 Bartholomew v. Freeman, 734 Bartlett, re, (Add.) 743 Bartlett v. Eees, 391 V. Roche, 694, 695 Barton v. Barton, 611 V. Titohmarsh, (Add.) 53 Basnett v. Morgan, 910, 931 Batohelor v. Middleton, 762 Bates V. Eley, 13 Bath V. Bell, 899 Bath's case, 191 Battersby, re, 926, 939 Batty, re, 504 Baughan, ex parte, 939 Banm, re, 68 Baxter, re, 915, 925 Bayly, ex parte, re Hart, 392, (Add.) 435, (Add.) 410 Beal V. Pilling, 275, 277 BeaU V. Smith, 363, 531, 577, 599 Beaney v. Elliott, 325, 400, (Add.) 5 Besant, re, 425 Beaty v. Curson, 935, 941 Beaucher v. London and Chatham Railway Company, 559 Beaufort, Duke of, v. Crawshay, 308 Beaumont's Mortgage Trusts, re, 194 Beckett v. Attwood, 896 Becldngham v. Owen, 461, 463 Beddowv. Beddow, 94, 432, 433, 437, 492, 532, 746 Bedwfill V. Wood, 90 Befford, re, 939 Begg V. Cooper, 460 Beioley v. Carter, 780, 795, 803 BeU, re, 23, 34, 35, 408 Belt V. North Staffordshire Eailway Company, 51, 95 V. Turner, 736 V. Wilkinson, 723 Bellerby v. Smith, 621 Belmonte v. Aynard, 205 V. Gutschow, (Add.) 205 Belton, Ex parte, 828 Benbow v. Low, 693, 713, (Add.) 274 Bendyshe, re, 793 Benecke v. i*rost Bennett v. Lord Bury, 195 T. Moore, 6, 23, 466 Benyon v. Godden, 287 Berdan v. Birmingham Small Arms Company, 59, 60 V. Greenwood, 703 Beresford v. Geddes, 447 Bergholt, re, 923 Berkeley, Earl of, re, 505 T. Standard Discoimt Com- pany, 276 Berri^o v. Eoberts, 461 Berrie v. Howitt, 823, 824 Berry v. Exchange Trading Company, 553 V. Mnllan, 192 BetheU v. Casson, 288, 758 Bethlem Hospital, re, 514 Beynon v. Godden, 719 BickneU, re, 798 Bignold, re, 919, 921 Bigsby V. Dickenson, 63, 64, (Add.) 323 Birch, re, 942 V. Cropper, 922 BirchaU, re, (Add.) 192 V. Pugin, 823, 826 Bird, re, 940 V. Harris, 815, (Add.) 136 Birkett, re, 941 Birmingham Estates Company v. Smith 708 Birmingham, Mayor of, y. Allen 772 Bishop Monk's Horfield Trust re (Ada.) 502, (Add.) 514 ' ' Bissicks V. Bath Colliery Company 348 Blaokborough v. Bavenhill, 749 Table of Oases. xxt Blaokbum Union v. Brooks, 324, 325 Blackford v. Da-riea, 7 Blaokmore t. Edwards, 698 T. Smith, 598 Blackwood, re, 674 Blades, ex parte, 810 Blain, ex parte, 589 Blakely Ordnance Company, 359 Blanohard, re, 921, 924, 925 Bland t. Daniell, 36 BUnn V. Bell, 33 Blenkom v. Penrose, (Add.) 691, 698 Blewitt, re, 744 Blewitt V. Bowling, 434, 865 BUgh, re, 531 T. O'Connell, 531 Blomfield, re, 504 Bloye, re, 941 Blyth, re, 513 and Tonng, re, 60, 946 v. Green, 588 Boddy T. Kent, 601 T. WaU, 704 Boden's Tmst, re, 912 Bolkhow, Tanghan, and Company T. Yonng, 278 Bolton, re, 794, 940 v. Bolton, 274, 314 ■T. London School Board, 435, 436 Bolton Benefit Loan Society, re, 990 Bonelli's Electric Telegraph, 940 Bonnewell v. Jenkins, 887 Bonser v. Bradshaw, 824 Booth T. Brisooe, 556, 567 Bordier v. BnrreU, 886 Bottomley t. Ambler, 97 Bonch V. Sevenoaks Boilway Company, 357 Bonrband t. Bonrband, 436 Bonrke, re, 923 Bonrton v. WiUiams, 396 Bovill v. Hitchcock, 885 Bowen, re, 828 Bower v. Hartley, 717 Bowes V. Marqma d£ Bute, 617 Bowey v. Bell, 208 Bowra t. Wright, 931 Boyoe, re, 918, 923 Boycott, re, 922 Boyd's Tmsts, re, 868 Boyes t. Cook, 693, 806 Boynton v. Boynton, 596 Boyse, re, (Add.) 28, (Add.) 489 Box, re, 901 Brackenbnry, re, 922, 930 Brader v. Eerby, 907 Bradford Tramways Company, re, 665 Bradley v. Mimton, 930 Bradshaw, ex parte, 914, 915, 987 Braginton v. Yates, 877, 879 Brain, re, 678, 682 Brandon, re, 531 V. Brandon, 506 Brandreth's Trade Mark, re, 208, 864 Branwhite's case, 462 Bray T. CnrroD, 192 Brealy, re, 793 Brent, re, 500, 937 Brentnall, rn, 922 Breton v. Mockett, 693, 806 Brewer, re, 503 Brewood Eailway Company, re, (Add.) 185 Brewster v. Dnrrand, 560 Bridson v. Smith, 465 Bright V. Marner, 711 T. TyndaJl, 833 British Alliance Corporation, re, 206, 722 Dynamite Company v. Krebs, 65, 78, 600, 602 Gnardian Life, &o., Company, re, 985 Farmers' Company, re, 65 Imperial Company, re, 979 Corporation, re, 1010 Bristol and ifforth Somerset Bajlway Company, re, 188 School, re, 515 Bristow V. Booth, 913 Broadwood, re, 802, 934 Brocklebank t. East London BaUway Company, 754 Y. King's Lynn Steam- ship Company, 205, 206 Broder v. Saillard, 772 Brompton Waterworks, ex parte, 662 Brook, re, 769, 864 V. Brook, 922 T. Hertford, 605 V. Wigg, 323, 826 Brooke v. Lord Mostyn, 192, 193 Bronghton, re, 795 Brown, re, 285 and Sibly, re, 945 V. CoUis, 10 V. De Tastet, T V. Eye, (Add.) 209 V. Sewell, (Add.) 220, (Add.) 225 V. Shaw, 551 T. Trotman, 825 Browning v. Sabin, 363 Bryant, re, 934, 939 T. Bnll, 353, 747, 749 Brydges t. Fisher, 308 Buchanan y. Taylor, 275 Bnckeridge v. Whalley, 13 Buckinghamshire Eailway, re, 500 Buckley, re, 932 V. Cooke, 322 Budd T. Davidson, (Add.) 323 Budding v. Murdock, 697, 699 Buenos Ayres Gas Company v. Wilde, 438 (Add.), 102 Buist T. Bridge (Add.) 363 Bnlkeley v. Earl of Eglinton, 922 Bull V. Jones, 677 Bullen V. King, 90 Bulley V. BuUey, 583, 823, 824 Bullock T. Corrie, 279, 285 Bunbury, re, 798 Bnnnett t. Bunnett, 903 Burdick y. Garrick, 573 XXll Table of Gases. Bnrdin, re, 780, 803 Bnigoine v. Taylor, 483 Burke v. Eooney, SI, 290, 697, 856 Burley, re, 798, 800 Bnmand v. Bodooauaclii, 678 Bumell v. BnrneU, 6, 23, 608 Burridge t. Bellew, 816 Burrowes, Lynn, and Sexton, re, 839, 945,946 Burrows v. Burrows, 368 Burt, re, 926 Burton, re, 920 Buse T. Eoper, 56, 444, 491 T. Eoaser, 54 Bntohart v. Dresser, 602 Bute, re, 908, 912 Butler V. Butler, 5, 711, 718, 896, 897 Bnstros t. Bustroa, 1013 T. WMte, 284, 288 Byrd v. Nunn, 55, 691, 702 C. Caddick, re, 789 Cakemore v. Causeway, &o., CompauT. re, 956 Caldwell t. Pagham Harbour Beclama- tion Company, 698, 1006 Callendar t. Hawkins, 712 Calvert, ex parte, 822 Cambrian Railways Company, re, 187, Camden Charities, re, (Add.) 147 CampbeU, re, 922, 923, (Add.) 21 • T. Attorney-General, 306, 317, 335, 337 CampbeU v. Earl of Dalhousie, 335 — — — T. Holyland, 391, 392, 399, 550, 552 Canadian Oil Worka Corporation v Hay, 697, 856 Cannon v. Johnson, 617 Cannot v. Morgan, 866 Cappeleus v. Brown, 464 Cardell v. Hawke, 21 Cargill V. Bower, 691, 695, 698, 699. 1002 ' Carlisle, Corporation of, v. Wilson, 4 Carlyon v. Trusoott, 780 Carnarvonshire Slate Company, re, 957 Carpenter, re, 905, 907, 926 Carpmael v. Proffitt, 514 Carr, re, 783 Carter v. Leeds Daily News Company, 276 ' — V. Salmon, (Add.) 435, (Add.) 440 ■ V. Stubbs, 856, (Add) 290 V. Wake, 391 Cartsbnm, The, 718, 719 Cartwright, re, 546, 815 V. Pulteney, 605 Carver v. Pinto Leite, 274 Gary v. Hills, (Add.) 20 Casey v. Arnott, 1010 Cashin v. Craddook, 282, 287, 699 Cassiopeia, the, 1006, 1007, 1009 OasteUi v. Groom, 308 Castro. V. Murray, 2, 3 Gates, re, 941 Catlin V. King, 721 Catling V. English, &o., Company, 1010 Catlow V. Catlow, 823, 825 Cattell V. Simons, 822 Cavander, re, (Add.) 62 Cave V. Cave, 495, 812, 813 Cavendish v. , 97 Cawthome, re, 941 Caznean, re, 939 Central African Trading Company v. Grove, 708, 717 Chamberlain, ex parte, 509 re, 794 V. Barnwell, (Add.) 67 '■ V. Chamberlain, 1 Chambers v. Green, Chapman v. Mason, 26, 867 V. Real Property Trust, 867 Chattertou v. Cave, 561 V. Watney, (Add.) 357 Ghawner, re, 901 Cheese v. Lovejoy, 891 Cheshire, re, 298 Chesterfield Colliery Company v. Black 279, 698 ' Chichester v. Donegal, 765 Chiloott, re, 798 Child V. Stenning, 582, 695, 887 Chilton V. Corporation of London, 465 Chorlton v. Dickie, 465, 459, 698, 697 Christie v. Cameron, 5^ V. Noble, 91 V. Ovington, 910 Christ's CoUege, Brecknock, r. Martin 98,806.855 Christ's Hospital, ex parte, 161, 514 Churchward v. The Queen, 678 Ghurton v. Douglas, 619 City and County Investment Comnanv. re, 986 City of Glasgow Bank, re, 973 City of Manchester, The, (Add.) 54, Claridge v. Mackenzie, 447 Clark, re, 535 V. Callow, 690, 702 V. Girdwood, 827 V. Molyneux, 560 Clarke v. Cookson, 879, 880, 885, 889, Clay, re, 1921 Clay V. Tetley, (Add.) 59 Claypole, Rector of, ex parte, 502, 802 Clegg V. Edmundson, 284 V. Rowland, 44 Clements v. Norris, 865 Clergy Orphan Corporation, re, 901 Cleveland, Duchess of, re, 783 Clissold, re, 922 Clitheroe, re, 802 Glough, re, 789 Clow V. Harper, 15, 90 Table of Oases. xxiit Clowes v. Hflliard, 592, (Add.) 21 Clntton, re, 922 T. Lee, 529 Coal £oonomisin^ Gas Company, 64 Coathupe v. Lewis, re, (Add.) 61 Cobbett T. Field, 2, 3 Cochrane t, Fearon, 205 Gockbnin v. Edwards, (Add.) 827 T. Peel, 801 jCookell T. Pugh, 916 Cookie V. Joyce, 483 Coddington v. The Jacksonville, Pen- sacola, and Mobile Sailway Company, 466,734 Cohen v. Bulkeley, 196 T. Hale, 358 Cole T. Beale, 204 Colebonme t. Colebonme, 434, 747 Coleman's Trusts, re, 532 Coleman and Jarrom, re, 945 Coles T. Benbow, 916, 916, 918 Collett T. CoUett, 780 T. Dickinson, 585, 712 V. Goode, 698, 701 ColHngwood, re, 905, 913 Collins' Charity, re, 500 Collins V. Vestey of Faddington, (Add.) 58. (Add.) 60 V. Welsh, 208 Collinson, re, 926 Colquhonn, re, 816 Colson, re, 936 Colyer, re, 922 Combs T. Brooks, 920, 925 Comedy Opera Company v. Carte, (Add.) 104 Commercial Disconnt Company, re, 961 Commissioners of Sewers t. Gellatley, 583 T. Glasse, 274 Conacher v. Conacher, 944, (Add.) 130, (Add.) 549 Connington v. Gilliatt, 886 Conquest's case, 994 Constantine, The, 68 Conybeare, re, 922 T. Farrier, 333 'T. Lewis, 57, (Add.) 270 Conyer's Grammar School, 924 Cook T. Bolton, 601 v. Day, 550, 1013 T. Enchmarch, 756 T. Gill, 727 Cooke's Contract, re, 945, 946 Cooke V. Collingridge, 7 Cookney y. Anderson, 619 Cooper, re, 682, 925 and Allen's Contract, re, 945 ——— V. Cooper, 66 -^-^ T. Ince HaU Colliery Company, 730 731 '- V. Macdonald, 917, 919 T. Whittingham, (Add.) 208, (Add.) 433 Cope, re, 901 Corbishley's Trusts, re, 660 Cornish v. Guest, 618 Corporation of London, exparte, 673 Corpus Christi College, em parte, 512 Costa Erica, Republic of, v. Strouaberg, 355 (Add.), 856 Cotterill, re, 918 Courtenay v. Courtenay, 898 Covington, re, 941 Cowan, re, 357 Cox V. Barker, 682, 696 V. Cox, 618 V. Hopwood, 92 V. Wataon, 399 Coyle V. Cuming, 700, 705 Crabtree, re, 797, 930 CracknaU v. Janson, 62, 329 Craig V. PhiUips, 60 Cramer, re, 914 Crane, re, 616 V. Jullion, 1013 Crawford v. Hornsea Steam Brick, &c., Company, 63 Credit Fonoier Company, re, 178 Company, re, 284 Creech St. Michael, Vioar of, ex parte, 615 Creen v. Wright, 208, 661 CresBwell v. Bateman, 596 V. Parker, lOU Croker, re, 501, 802 Crom V. Samuels, 855 Crookes v. Whitworth, 607 Cross, r«, 800 Cross's Charity, re, 783 Crossley v. Ci^ of Glasgow Life Assur- ance Company, 569 Croughton, re, 658, 601 Crowe, re, 910, 913, 916, 917, 921, 925 Crowe V. Bamioott, 708 Crowle V. Eussell, 25, 393, 845 Croxton v. May, 661 Cruikshank v. Floating Swimming Baths Company, 89, 772 Crump V. Baker, 7 V. Cavendish, 463 CuU, re, 941 Cuming, re, 905, 918, 932 Cummins v. Fletcher, 761, 833 — — — V. Heron, 58 Cundee, re, 796 Cunningham and Bradley's Contract, re, 945 Currie, re, 923 Curtis, re, 922 Cui'tois, re, 938 Curwen's Settlement, re, 502, 515 Cusden v. Clapham, 325, 444, 551 Cust y. Middleton, 782 D'Adhemar v. Bertrand, 922 Dale, ixpwrte, (Add.) 486, 924 re, (Add.) 67 Dalgleish, re, 909, 913, 921 Dallas V. Glynn, 363 Dallinger v. St. Albyn, 699 XXIV Table of Cases. Daroy v. Wlittaker, 695, 600 Daubney V. Shnttleworth, 469, 548, S49, 551, 552, 854 Dann v. Simmina, (Add.) 63, 470, 660 Davenant's Charity, re, 500 Davenport y. Bylands, 437 Davey v. Millar, 907 V. Railway Pasaengers AsBnranoe Company (Add.), 92 David Uoyd and Co., re, 392 Davidaon v. Cooper, 578 • V. Leslie, 817 Davies; ex parte, 930 re, 906, 919 V. Barrett, 548 V. Felix, 484, 558 V. Garland, 1006 V. Jenkina, 685 V. Lowndes, 307, 308 T. MaeHenry, 121 y. Marshall, 434 V. Whitehead, 574 V. WiUiams, 282, 758 , Davis, re, 906, 919 V. Aahwin, 396 V. Chanter, 919 V. Davia, 192, 193, 476, 868 -^— V. Flagataff Silver, &e., Com- pany, 539, 726, 871 " V. Godbehere, 558 ■ V. Spenoe, 460 Davy V. Garrett, 56, 694, 696 Dawes v. Thornton, 717 Dawkins v. Lord Penrhyn, 721 ' V. Prince Edward of Saxe- Weimar, 2, 3 ■ V. Simonetti, (Add.) 433 Dawson v. Bank of Whitehaven, 761 T. Shepherd, (Add.) 236 Day V. Browungg, 432, 721 V. Whittaker, 8 Dean v. Lethbridge, 817 V. Wilson, 737 Dear v. Sworder, 707 De Brito v. Hillel, 13, 316 De Cordova v. De Cordova, 31 De Hart v. Stevenaon, 567, 592 De la Grange v. MoAndrew, 207 De la Warr, Earl, re, 901 De la Warr v. Sackville, 77, 774 Delmar v. Preemantle, 646, 648 Delves v. Delves, 748 Dempster v. PnmeU, 693 Dence v. Mason, (Add.) 57, 63, 698 Dendy, re, 794 Dennis, re, 901 Dennis v. Seymonr, 463 Dent V. Sovereign Life Aasnranoe Com- pany, 884, 886, 889 Derby Mnnioipal Estates, re, 601 De Tabley, re, 794 Devon and Somerset Railway Company, re, 187 Devoy v. Devoy, 914 Dewar v. Maitland, 906 Diamond Fuel Company, re, 205, 963 Dickenson v. Dodda, 67 Dickinaon, re, 922 Diofca y. Brooks, 64, 707 Dickaon, re, 918, 921, 942 Dickson's case, 63, 982 Dickson v. Harrison, 52, 68, 60 Dillon V. Cunningham, 367 Dinning v. Henderson, 735 Disney y. Longbonrne, 276, 276 Ditton, ex parte, re Woods, 392, 432 Dix v. Groom, 455 Dixon, re, 41, 916 Dixon's Trust, re, 631 Dixon V. Evans, 191 Dodds V. Shepherd, 56, 444 Dodkin v. Bmnt, 920 Dollman v. Jones, 59, 557 Dolphin v. Layton, 357 Donald v. Bather, 570 Donaldson v. Donaldson, 802 Donisthorpe, re, 920, 923 Doming, re, 786 Doss V. Secretary of State for India, 678 Dong;las v. London and North-Weatem Railway Company, 507 Dowdeswell v. Dowdeswell, 20, 887 Dowling, re, 600 Dowling V. Dowling. 267 Doyle T. Donglas, 196 V. Kaufman, 856, 1005 Drake, ea parte, 373 Drake v. Trefnsis, 501, 502, 802 Draper, re, 924, 928 Drinkwater v. Badoliffe, 608, 609 Drover v. Beyer, 106, 107 Duchess of Westminster Silver Lead Ore Company, re, 67, 67, (Add.) 232 Dnokett v. Gover, 592, 593, 694 V. Williams, 308 Dugdale, re, 858 Dummer's Will, re, 802 Duncan, re, 149 Dunn V. Pearson, 658 Dunraven Coal and Iron Mining Com- pany, re, 65 Dunraven's Estates, re, 514 Dnnster, re, 937 Dupuy V. Welaford, 675 Dymond v. Croft, 396, 397, 451, 454, 549, 1013 Dynevor DufEryn Collieries Company, re, 503, 595 Dyson v. Pickles, 869 B. Bade v. Jacobs, 274, 758 V. Winaer, 358, 444 Eamea v. Hacon, (Add.) 66 Earl V. Ferris, 684 Earp V. Henderson, 712 East, re, 926 East and West Junction Railway Com- pany, re, 188, 190 East Asaam Company y. Roche, 462 Ecclesiastical Commissioners y. Kino 433 . ' Table of Cases. XXV Edd T. Winser, 54 Ede T. Vyse, 695, 1002 Ede Brotiiers and Co., ex parte, 858 Eden r. Naish, 192, 193, 805 Edmunds, re, 533 EdmnndB y. Attorney-General, 2 Edwards.re, 17, 420, 531 ' Edwards v. CnnlifEe, 398 T. Edwards, 752 T. Lowther, 591 -^^— V. Midland Bailway Company, (Add.) 559 Egremont, Earl of, t. Smith, 837 Egremont Bnrial Board t. Egremont, &o., 288 Egremont y. Thompson, 597 Eldridge v. Burgess, 595, 597 Elham Valley Bailway Company, re, 971 » Elias y. Griffith, 324 Ellerthorpe, re, 907 EUiott, re, 783, 941 Ellis, re, 906, 915, 916 y. Ambler, 276 y. Fleming, 728 y. Mnnson, 458, 464, 483, 707 Ellison, re, 920, 922 y. Wright, 7 Elmer y. Creasy, 275 Elsom, re, 56 Elton y. Elton, 617 Emma Silyer-Mining Company y. Grant, 884 ■^— ^^^— — — — — — y. Lewis, 66 Emmannel y. Bridger, 358 Emmett y. Clarke, 922 English y. Tottie, 284, 285 y. Vestry of Camberwell, 434 Ennis, re, (Add.) 24 Enr^ht, re, (Add.) 57 Erskme, re, 941 Esoott y. Gray, 577, 588 Esdoile y. Visser, 362, 369 Estate Company, re, 178 Etty y. Wilson, 484, 485, 558 Eyana, em parte, 353, 753 Eyans' Settlement, re, 502, 942 Evans y. Bagshaw, 605 y. Bear, 361 y. Buck, 707 v. Davis. 695, 1002 y. Pnleston, 440 y. Wills, 367 Evelyn v. Chippendale, 204 y. Evelyn, 290, 695, 757 y. Lewis, 752 Evennett v. Lawrence, 61 Evering v. Chiftenden, 204 ' y. Co-operative Beer Company, 959 Ewart y. WilliamB, 10 ISzchange and Discount Bank v. Billing- hnrst, 61 Eyre v. Hughes, 300 y. Sanders, 786, 794 P. Fairolongh y. Marshall, 434, 543, 592 Faithfull V. Ewen, 826 Pane v. Fane, 35, 900 Pardon's Vinegar Company, re, 60, (Add.) 67 Fariua, The, 863 Parmer v. Curtis, 761 Pamworth v.'Hyde, 308 Farrant, re, 925 Paund v. WaUaoe, 656 Peamehough y. Pemell, 767 Peams v. Young, 7 Pell V. Brown, 761 Fellows, re, 923, 925 Felstead v. Gray, 805, 806 Penton v. Wills, 33 Ferguson y. Ferguson, 361 Femandes, re, 818 Piddey, re, 825 Field v. Field, 25, 868 v. Great Northern BaUway Com- pany, 208, 561 Pielden v. Hornby, 658 Finch v. Jukes, 945, 946 Finlay v. Davis, 293 Finney, re, 912 V. Hind, 360, 595 Fischer y. Haln, 308 Fisher v. Fisher, 511 y. Hughes, 287, 458, 924' V. Owen, 273, 277, 278 Flemon, re, 513 Fletcher v. Bodgers, 433 Plitcroft, re, 913 Flood v. Pritchard, 839, 843, 884 Flower, ex parte, 512 v. BuUer, 585 v. Lloyd, 65, 66, 485, 600, 602, 774 Fluid V. Fluid, 801 Foley, ex parte, 918 Ford, re, 783 and Hill, re, 945, 946 V. Taylor, 874 V. Tynte, 6 Posbnry, re, 939 Porshaw v. Higginson, 898 Forster, re, 792 Fortescue v. Portesoue, 753 Poster and Lister, re, 945 V. Alven, 196 v. Dawber, 920 ■ v. Edwards, (Add.) 51 v. Poster, 481, 616 V. Gamgee, 464 V. Harvey, 327 V. Parker, 399, 485, 932 y. Roberts, 484 v. TJsherwood, 873 Potherby v. Metropolitan Bailway Company, 533 Fowler v. Knoop, 720 — : V. Monmouthshire Canal Com- pany, 827 XXVI Table of Gases. Fox T. Atahnrst, 502 T. Suwerkrop, 420 Fozon y. Gascoigne, 823, 824 Poyard, re, 940 Frakes t. Breslow, 845 Franklin, re, 796 . V. Fern, 761, 762 Franks t. Bollam, 535 Fraser and Co. T. Bnrrows, 282 Fray v. Vonles, 192 Freason t. Loe, 290 Freeman t. Cox, 897 French, ex parte, 4A1 '— re, 901 ■ T. Lear, 1001 Friend v. London, Chatham, and Dover Ilailway Company, 285 Frith and Osborne, re, 945 ■ • T. The Queen, 678 Fritz V. Hobson, 436, 437, 480, 553, 562 Frodsham t. Frodsham, 924 Fryer t. Eoyle, 20 ■ T. Wiseman, 324 Fnlica, the, 866 Fnllwood V. Ptdlwood, 433 Fnrness v. Booth, 708, 711 Futvoye v. Kennard, 925 G. Gamston, Bector of, ex parte, 501 Garbntt v. Fawens, 850 Gardiner's case, 994 Gardiner v. Do?mes, 898 Gardner, re, 907, 919, 923 • T. Cowles, 906, 914, 928 •^^— — T. Hardy, 454 V. Irwin, 282 V. Wright, 333 Garland t. Garland, 749 Garlick v. Lawson, 257 Garling v. Eoyda, 363, 886 Garnet t. Bradley, 79, 208, 511, 929 ' Gamier, re, 940 Garrard, ex parte, 59 Gartside, re, 919 Gartz, re, 921 Gaskell t. Gaskell, 606 Gaakin v. BaUs, 432, 433 Gathercole v. Smith, (Add.) 57 Gatti V. Webster, 5, 408 Gandet FrJres Steamship Company, re, 193,964 Gay v. Labonchere, 277, 278 Gee, re ; Laming v. Gee, 63 Geoghegan t. Dormer, ^ German Bank of London v. Schmidt, 462' Gething v. Keighley, (Add.) 12 Gibbin, r«, 922 Gibbon t. Walker, 397 I Gibbons t. London Financial Associa- tion, 51 Gibbs V. Da\dd, 730 Gibson v. Woollard, 738 Gilbert v. Comedy Opera Company, (Add.) 329 " " GUbert v. Endean, 62, 63,:192, 325 T. Gilbert, 551 V. Russell, 411 T. Smith, 6, 465, HSG, 608, 609, 610 Gillot T. Ker, 468, 465 Ginesi t. Cooper, 619 Girvin v. Grepe, 461 Gladibanta, The, 63 Glaiiville, re, 928 Gledhill v. Hunter, 606, 756 Gledstane'a Trusts, re, 934 Glossop T. Heston Local Board, 324, 492,532 Gloucester Charities, re, 924 Glover v. Ellison, 12, 13 Goddard v. Poole, 598 T. Thompson, 66, 559 Godden t. Corsten, 693, 1001 Gold Company, re, 65, 984, 986, 987 Golding T. Wharton Salt Works Com- pany, 55, 699, 705 Gooch's Estate, re, 502 Goodman, re, 936 Goodrich v. Marsh, 568, 583, 606 Goodright v. Noright, 847 Goodwin, re, 780, 786 V. Budden, 768, 769 Gordon v. Horsfall, 393 Goucher v. Clayton, 10 Gouger t. Latonche, 596 Grough v. Bage, 924 Grace T. Baynton, 931 Graham T. Campbell, 55, 435 Grant, re, 930 Grant t. Banque Franco Egyptienne, 66, 67, 68 V. Holland, 299, 559, 817 T. Tea, 744 Gravenor, re, 745 Graves v. Taylor, 773 Gray v. PauU, (Add.) 192 Graydon, re, 744 Great Australian, &c.. Company, r«, 1010 Great Britain Life Assurance Society, re, 993, 994 Great Korthem Committee v. Inett, 551 Great Northern Railway, ex parte, 651 Great Western Railway Company v; Waterford and Limerick Railway Company, (Add.) 291 Great Yeldham Glebe Lands, re, 562 Green, re, 600, 925 Green v. Browning, 1010 V. Coleby, 693, 806 V. Mercer, 618 V. Pledges, 649 V. Sevin, 323, 465, 713, 844 Ghreene, re, 785 GreenhiU, re, 357 Greenhill v. Church, 97 Greenough v. Littler, 397 Green's Trustees v. Barrett, 768 Grey v. Jenkins, 786, 794 Grice v. Grice, 817 Griffin v. Allen, 61 Table of Cases. xxvu Griffin v. Griffin, 605 Griffiths v. Joues, 743 Grills v. Dillon, 68 Grimoldby, ex parte, 502 Grimshavr, etc parte, 862 Groom, re, 906 Groome t. Batbhone, 462 Grundy v. Buokridge, 926 Gnest T. Smythe, 739, 743 Guibert.re, 922 GnnneU v. WMtear, 940 Gonson y. Simpson, 909, 925 H.'s Estate, re, 434, 748 Habershon t. Gill, 289, 432 Hadley v. MoDougall, 288 Hakes T. Hodgkins, 851 Hakewill, ex parte, 4Si Haldane t. Eokford, 599 Hall, re, 502 T. Eve, 712, 713 V.Hall, 372 v. Jupe, (Add.) 560 ^— v. Laver, 815 T. London and North-Western Bailway Company, 276 V. Old Talargook Company, 695 T. Pritohett, 357 Halliday, re, 794 Halaey v. Brotherhood, (Add.) 623, 699 Halstead United Charities, re, 515 Ham, re, 941 Hamer t. Giles, 357, 622, 825, 856 Hamilton t. Arrovrsmith, 661 f . Dallas, 31 V. Davies, 469, 550, 1013 r. Johnson, (Add.) 560 Hamilton Windsor, &o.. Company, re, 960 Hamlyn v. Betteley, 877, 883 (Add.), 444 Hammond T. Syrett, (Add.) 113 Hanbnry v. Noone, 300 Hancock T. De Nieeville, 300 v. Guerin, 282 T. Lablache, 584, 585 . Hancoz t. Spittle, 918 Hands y. Hands, (Add.) 106 Hane;^, re, 940 HanMn y. Turner, 848 Hanley y. Pearson, (Add.) 113 Hanmer y. Mangles, 204 Hanover, King of, v. Bank of England, 920 Hansford, re, 936 Harbord v. Monk, 275, 693, 694, 700 Haroonrt y. Boe, 847 Hardley, re, 936 Hardy v. Eokersley, 698 Hardwick v. Wright, 10 Hare v. Hare, 831 Harford, re, 922 Hargraves v. Wright, 910 Hargreaves, re, 863 Hargreayes v. Scott, 52 V. White, 805 Harker, re, 61 Harlandy. Garbntt, (Add.) 597 Harnett v. Vise, (Add.) 208 Harper v. Great Eastern Bailway, 99 v. Sorimcreonr, (Add.) 368 Harris, re, 788, 940 Harris v. Aaron, 55 V. Barker, 319 V. Fleming, 1010 V. Franoonia, 1010 V. Gamble, 701, 707, 877 y. Newton, 59 y. Petherick, 208, 561 Harrison, re, 904, 919 Harrison y. Bottenheimer, 460, 462 V. Cornwall, &o., Company, 833 y. Sonthcote, 278 v. Smith, 924 Harrold, re, 41 Harry y. Davey, 594, 720 Hart y. Hawthorne, 399 v. Swaine, 113 Hartley, re, 926 Hartley v. Owen, 287 Hartnall, re, 903, 915 Harvey, re, 909 Harvey V. Clarke, 790 y. Hall, 102, 362, 363 Hastie, re, 64 Hastie y . Hastie, 481 Hate y. SneUing, 395 Hattatt, re, 922 Havelock, re, 913 Hawes v. Paveley, 639 Hawke, re, 938 Hawkesley y. Bradshaw, 703 Hawkins v. Gathercole, 752 Hawleyy. Steele, 698 Haycock, re, 933, 941 Haymes v. Cooper, 826, 852 Hayton y. Beall, (Add.) 357 Hayward v. Pile, 297, 298 v. Smith, 616, 801 Heap V. Marris, 699, 701 Heapley, re, 919 Heath v. Crealock, 396 Hedges v. Finoham, 341 Hedley v. Bates, 191, 302, 433, 492, 533, 726 Heinrich v. Sutton, 815 Heiron, re, 349 Helmsley, re, 798 Homing, re, 941 Hennessey v. Bohman, 731 Herbert, re, 917 Hermitage v. Kilpin, 370 Herring y. Bischofieheim, 694, 699 y. Clark, 911 Heugh V. Chamberlain, 705 Hewitson v. Sherwin, 362 Hewitt, re, 906, 912 Hewitt v. Nanson, 397 Hey, re, 913 Hickman y. Upsall, 660 Higginbottom v. Aynesley, 455 Higginson y. Hall, 282 XXTIU Table of Cases. Higgs V. Schrader, 825 Highton T. Treheme, 60 HiU, re, 922 HiU V. Pulbrooke, 618 T. King, 14 v. Kirkwood, 440 T. Eimell, 548 Haiiard, re, 802, 917 Hilliard v. Fnlford, 34 HUlman v. Mayhew, 17, 835, 867 HiUs V. Springett, 596 Hilton, re, 786 Hind T. Whitmore, 573, 574 Hinde v. Morton, 697 Hioms T. Holtom, 396 Hirst, ex parte, 892 Hobson'B Estate, re, 502, 802 Hoeh T. Boor, (Add.) 53, 768, 769 Hodding t. Starchfield, 846 Hodge, re, 940 Hodges, re, 938, 939 Hodges T. Hodges, 703, 721 Hodgson, re, 905, 923, 941 Hodgson T. Poster, 502 T. Hodgson, 918 Hodson, re, 921, 940 Hodson T. Moohi, 584, 707 • T. Richardson, 195 Hoffman v. Duncan, 621 T. PostiU, 274 Hogg v. Darley, 721 Holbrook, re, 916, 924 Hole, re, 786, 800 Holl, re, 786, 800 Hollier t. Bnme, 298, 506 Hollingsworth v. Brodrick, 195 HoUoway t. York, 708, 834, 866, 867 HoUyford Copper Mining Company, re, 973 Holm V. Grey, 502 Holman's Settlement, re, 510 Holmes, re, 678 Holmes v. Harvey, 867 Holt, re, 362, 367, 424, (Add.) 434, 425 Holt T. Bverall, 537 V. Jesse, 192 HotyweU - cum - Needingworth, Eeotor of, ex parte, 502 Home Assurance Association, re, 207 Home Investment Society, re, 816, 967 Honduras Bail way Company v. Lefevre, 582 Hood, re, 41 Hooke, re, 795 Hooke V. Ind, Coope, and Co., 443, 447 Hoole V. Earnshaw, 1001 Hooper, re, 65, 901 Hooper v. Giles, 700 V. Smart, 835 ■ V. Stmtton, 906, 908 Hooson, ex parle, 362 Hope, re, 362 Hopewell v. Barnes, 851 Hopkins v. Hopkins, 793 Horbnry Bridge Coal Company, re, 982 Horlock V. Lidiard, 693 Horn, re, 780 Horner v. Ogler, (Add.) 211 Horsnail v. Bmce, 367 Horwell y. London General Omnibus Company, 717 Hoskins, re, 899, 926, 941 Hoskin's Legacies, re, 531 Hoskin's Trusts, re, 54, 208 Hotham, Lord, re, 901 Houseman y. Houseman, 480, 849 Howard, re, 1010 Hoyle, re, 785 Howarth, re, 427 Howe, ex parte, (Add.) 60 Hoyle, re, 785 Huckwell, re, 693 Hue, re, 941 Huggons V. Tweed, 55, 710 Hughes, re, 912 Hughes V. Williams, 398 Hull and County Bank, re, 54, 970, 973 Hull Central Drapery Company, re, 975 Humby y. Moody, 602 Hume V. Druyff, 105, 106, 107 Humphries v. Edwards, 867 Humphry, re, 919 Hunt V. Bishop, 903 Hunt v. City of London Beal Property Company, 470, 558, 880, 888 Hunt V. Blemnant, 903 Hunter v. Hunter, 58, 62 Hunter v. Tonng, 45, 684 Hurle, re, 782 Hurst V. Hurst, 396 Hussey v. Payne, 67 Hutchinson's Trusts, re, 785, 939 Hutchinson v. Glover, 285 V. Hartmont, 340, 361, 362 V. Massarene, 753 V. Stephens, 907, 914 Hutley, re, 868 Hyam v. Terry, (Add.) 4, (Add.) 66, (Add.) 438 > • K I , Hyde and Co., re, 863, 864 Hyde v. Warden, 730, 748 Imperial Land Company of Marseilles, re, 307 , Insley v. Jones, 873 International E^ancial Society v. City of Moscow Gas Company, 60, 856 Irlam v. Irlam, 8 Irwin v. Grey, 679 Isaacs, ex parte, 68 Ives, re, 794 Ivory, re, 17, 68 Ivory V. Cruikshank, 372, 412, 453 J. Jackson v. Mawby, 103, 367 Jackson v. North-Easteru Eailwav Company, 595, 697, 598 ^^''^■y Jackson v. Tnrneley, 257 Jacobs V. Brett, 727 Table of Gases. XXIX Jamea, re, 789 James t. Orovr, 459 T. Jamea, 391 v. The Queen, 678, 682, 683 Jameson t. Brick and Stone Oompanv, 581 Jarman, ex parte, 827 Jeffryes v. Drysdale, 924 JenMns, re, 570 Jenkins t. Bryant, 816 v. Davies, 465, 701 V. Morris, 558, 561 John Brown and Oo. t. Eeehle, 954 Johnes t. Clanghton, 752 Johnson, re, 794, 802 Johnaon'a Patent, re, 492 Johnson 7. Burgess, 1002 T. Mills, 759 V. MofEatt, 865 V. Palmer, 874 JollifEe'a Estate, re, 500, 513 Jones, eas parte, 515 Jones, re, 1, 2, 33, 785, 925, 941, 1005 Settled Estates, re, 514 T. Baxter, 469, 470, 558, 868 T. Bridgman, (Add.) 62 T. Caless, 33 T. Davis, 484 V. Frost, 828, 825 T. Hough, (Add.) 54, 557 V. Jones, 91 v. Lloyd, 620 V. Monte Video Gas Company, 283 V. Owen, 726 V. Qninn, 695, 701, 705 T. Victoria Graving Docks Com- pany, 56, 95 Jope V. Morshead, 606 Joyce, re, 906, 908, 920 Judd V. Green, 68 Jndkins, re, (Add.) 294 Jnlia Piaher, The, 205, 710 Jnlina v. Bishop of Oxford, 446 Jnpp T. Cooper, 349 Kain v. Farrer, 283 Kaye, re, 421 Keane, re, 824, 825 Keeler, re, 910, 912 Eearaley and Clayton's Contract, re, 945 Eeavera v. Michell, 845 Kelland v. Fulford, 601 KeUy V. Byles, 63, 67 Kendall v. Hamilton, 702 Kenrick v. Wood, 574 Kentish Town Estate, re, 785 Kershaw, re, 901 Kettlewell v. Barstow, 286, 288 Kevan v. Crawford, 65 Khedive, The, 66 Kilmorey, Earl of, re, 794 Kilner v. Bailey, 693 Kimpton v. Willey, 726 King, re, 40, (Add.) 480 King V. Oorke, 698 V. Davenport, 290, 697 V. Hawkesworth, 208 V. Saudeman, 484 Kingsman v. Kingsman, (Add.) 572, (Add.) 573 Kingstone and Cardisley Bailway Com- pany, re, 190 Kino V. Eudkin,-437, 702, 887 Kirk V. The Queen, 679 Kitching v. Etching, 756 Kit HiU Tunnel, re, (Add.) 970 Kitto, re, (Add.) 34 Knapman, re, (Add.) 34, (Add.) 232 Knapping 7. Tomlinson, 535 Knatohhnll v. Fowle, 324 Knight V. Knight, 911 Knowles, re, 901 Knowles 7. Ehydfed Colliery Company, 600 KreU 7. Burrell, 58, 437, 556, 567 Kynaston 7. MacKinder, 208 Laing'a Trusts, re, 779 Laird 7. Briggs, (Add.) 691, (Add.) 704 Lamare v. Dixon, 834 Lamb v. Whiteley, 295 Laming v. Gee, 32 Lamotte, re, 496, 906, 923 Landon, re, 936 Landore Siemens Steel Company, 868 Lane v. Eve, 4S9 V. Neii^^n, 447 Langdale 7. Briggs, 257 LangdeU 7. Baker, 617 Langhorne Eailway Company, re, 185 Langley, ex parte, 437 Langmead 7. Cockerton, 616 Lapworth's Charity, re, 501, 503, 504 514 Large v. Large, 1003, 1006 Larken, re, 902' Laaoelles v. Butt, 769, 879 Laslett V. Cliffe, 397 Latch 7. Latch, 21, 568 Latimer 7. Aylesbury and Buckingham Bailway Company, 435, 747 Lauretta, The, 67 Law, re, 786 Law 7. Garrett, 100, 747 Lawes 7. Carter, (Add.) 433 Lawrence 7. Fletcher, 824 V. Galsworthy, 904 Lawreuoeson 7. Dublin, &o.. Company, 1009 Lawrie 7. Lees, 839 Lazarus, re, 941 Lea, re, 912 Lea 7. Colyer, 710 Leach 7. Westall, 617 Leadbeater 7. Cross, 830 Leader, The, 826' Leake, re, 941 XXX Table of Gases. Leathley v. McAndrew, 1004 Leohmere v. Clamp, 551, 908, 924, 932 Iiee Conserrative Board v. Button, (Add.) 232 Leeming v. Murray (Lady), 192, 581 Lees, re, 901, 903 Lees T. Fisher, 397 V. Patterson, 708, 709 Legard T. Hodges, 601 Legg V. Mankrell, 924 Legje, re, 796 Leggott r. Barrett, 619 Leigh, re, 277, 281, 515, 768, 771, 802 Leigh's Estate, re, 283, 285 Leigh T. Brooks, 768 Lereculey t Harrison, 717 Leslie, re, 802, 901, 903 Letohford, re, 429 Levett, re, 938 Lewes Trust, re, 660 Lewis' case, 974 Lewis, re, 793, 796, 818 Lewis T. Hillman, 940 V. Nobbs, 572, 584 Lewes, Earl of, v. Barnett, 366 Liddiard, re, 922 LifSn V. Pitcher, 854 Lincoln Corporation, ex parte, 515 Liscombe, re, (Add.) 92 Lister's Hospital, re, 502 Little, re, 925 Little's case, 57 Littlewood t. Collins, 24 Litton V. Litton, 290, 458, 459, 465, 716 Liverpool, Ac, Company t. London, &o.. Docks Company, 883 • V. London Navigation Company, 768 Liverpool Improvement Act, re, 512 Lloyd; re, 87, 750, 933 Llpyd V. Dimmack, 598 V. Jones, 596, 868, 889 V. Lewis, 89, 99, 468 Lloyds V. Harper, 568 Lloyd's Banking Company v. Ogle, 461 Locke, re, 775 Lodge V. Pritchard, 10 Lomai's Arbitration, re, 92, 98 London, Bishop of, ex parte, 512 Corporation of, ex parte, 673 Mayor of, v. Cox, 726, 727 London v. Eoffey, 558 London and Birmingham and Bucking- hamshire Bailway Company, re, 6 and Caledonian Marine Insur- ance Company, re, 986 and County Assurance Com- pany, re, 49 - and County Banking Company V. Dover, 896 and North-Western Railway Company v. Lancashire and York- shire Ba^way Company, 432 and Provincial Bank v. Bogle, 585 London and Provincial Marine Insur- ance Company v. Davies, 276 London and Southwark Insurance Corporation, re, 182 Bank of Mexico v. Hart, 306 Brighton and South Coast Eailway Company, re, 514, 515 Chatham and Dover Railway Company, re, 513 Docks Company v. Metro- politan Eailway Company, 712 • Syndicate v. Lord, 897 Londonderry, Marq. of, v. Bhoswydol Company, 591 Longboume v. Eisher, 85, 140, 591 Lohg, re, 513 Long V. Crossley, 592 Longdendale Cotton Spinning Company, ■ re, 392, 486 Longman v. East, 51, 89, 468, 768, 769, 770, 772, 773 Lord, re, 13, 621 Lorenz, re, 901 Lovesy v. Smith, (Add.) 113, (Add.) 477, (Add.) 572 Lovett, re, 20 Lowe V. Blakemore, 359 V. Lowe, 58, 59, 556 Lowestoft, Yarmouth, &c.. Company, re, 665 Lowry, re, 502, 614, 907 Lowry's WUl, re, 905 Lows, ex parte, 62 Lucas v. Dalziel, 422 V. Peacock, 824 V. South Eiensington Hotel Company, 391 Lunn's Charity, re, 916 Lnsh's Estate, re, 907 Lusoher v. Comptoir D'Escompte de Paris, 730 Lydall v. Martinson, 887 Lymington Chapel, re, 501 Lyne v. Lyne, 618 Lyon V. Tweddle, 274, 275 Lyon V. , 728 Lys V. Lys, 609 M. Maoallister v. Bishop of Rochester, 273 Macann v. Borradaile, 573, 574 Macdonald v. Carrington, 710 Mackenzie v. Mackenzie, 915 Mackintosh, re, 901 Maclean, re, 941 Machn v. O'Connor, 61 McAndrew v. Barker, 59, 60, 444 McArthur v. Dudgeon, 13 McDonald v. Poster, 294 MoLay v. Sharpe, 707 McLean and Co., re, (Add.) 979 McMnrray v. Spioer, 905, 907, 908 McPhail, ex parte, 1011 McStephens v. Carnegie, 1012 McWade v. Broadhnrst, 21 M'CorquodaJe v. Bell, 279, 285 M'Garel v. Moon, 275 Table of Oases. XXXI Mainwaring, re, 915 Mais, re, 919 Malcolm t. HodgHnson, 206 Mallaok v. Galton, 399 MalUn, re, 786 Mammoth Copperopolis of Utah, re, (Add.) 984 Manby v. Manby. 1006 Manchester and Miltord Eailsray Com- pany, re, 747, 749, 750, (Add.) 191 Manchester, Sheffield, &o., Company V. Brooks, 707 Manisty T. Kenealey, 756 Mann t. Perry, (Add.) 363 Manning, re, 913, 919 Mauael, re, 60, 61 Mansfield T. Childerhonse, 275 Mapleson T. Masini, 205 Marcus t. Creneral Steam Nairigation Company, 55 Margate Pier and Harbour Company V. Perry, 456, 700 Mark, re, 514 Markham, re, (Add.) 57 Marmon's Trusts, re, 582 Mamer, re, 515, 989, 942 Marriott, re, 922 Marriott v. Marriott, 700 Morris v. Ingram, 362, 364, 866 Marsden t. Lancashire ' and Torkshixe Eailway Company, (Add.) 208 Marsh, re, 56 Marsh t. Isaacs, 560 V. Mayor of Pontefraot, 699 Marshall, ex parte, 462 , re, 793 Marston v. Smith, 443 Martano v. Mann, 572, 574, (Add.) 207 Martin v. Bntohard, 285 V. London, Chatham, and Dover Eailway Company, 510 Martinez, re, 921 Masbach t. James Anderson and Co., 851 Mason t. Brentini, (Add.), 220 (Add.) 221 V. Harris, 577 Masaam v. Thorley'a Cattle Food Com- pany, 435 Massein, re, 938 Maasey v. Allen, 206 Masters T. Pontypool Local Board, 710 Mathews, re, 919 Matthew v. Northern Asanranoe Com- pany, 933 Matthews, re, 913, 921, 925 Matthews v. Antrobus, 270, 395 T. Whittle, 585, 695 Mathias v. Mathias, 1006 Maughan, re, 979 Maynard, re, 269, 915, 921, 925 Meacham v. Cooper, 12 Measures v. Thomas, 713 Meek v. Ward, 550 Meikle, re, 859, 864 Melhnish v. Milton, 17, 731 Mellin t. Monico, 51, 89, 468, 768 Mellor's Policy, re. 537 Mellor V. Sidebottom, 6, 465, 466 Menhiniok v. Turner, 705 Menier v. Hooper's Telegraph Works, 589 Mennard v Welford, 919 Menton v. Metcalf, 697 Mercantile Marine Inaurance Company V. Shoeamith, 282 Mercantile Eiver Plate t. Isaac, 592 Mercer and Moore, re, 392, 761 Mercer v. Lawrence, 343 Mercers Company, ex ■pwrte, 168, 208, 511, 676, 929 Mercier t. Cotton, 275 Merry T. Niokalls, 66, 67 Mersey Dock Board, re, 307 Meraey Dock Commissioners t. Jonea, 831 Metcalfe, re, 27 ' Metcalfe's case, 362 Metropolitan Asylum District Board v. Hffl, (Add.) 69, (Add.) 77 Metropolitan Bank, re, 985, 986 Metropolitan Bank y. Heiron, (Add.) 541, 557 Metropolitan Bank and Jones, re, 945 Metropolitan Board of Works v. New Eiver Company, 55, 830, 833 Metropolitan Company and Maire, re, 513 Metropolitan Inner Circle Company v. Metropolitan Eailway, 557, 880 Metropolitan Eailway Company v. Defriea, 721 Mette'a Eatate, re, 506 Metzler v. Wood, 887 Meyriok v. James, 831 V. Laws, 673 Micklethwaite v. Fletcher, 863, 367 Middlesborongh Company, re, 952 Middleton v. Chioheater, 361 V. Pollock, 600 Midland Waggon Company v. Potteries Eailway Company, (Add.) 191 Mildmay v. Lord Methuen, 6 V. QuickC, 359, 616, 805, 826, 852, 858 MiUsaioh v. Lloyda, 560 Military and General Tailoring Com- Sany, re, 957 lard V. Bnrronghes, (Add.) 52 Miller v. Marriott, 617 Millington v. Loring, (Add.) 708 Mills V. Jennings, 588, 762, 763 Milnes, re, 499, 503 Milward, re, 786 Minohin, re, 912 Minet v. Morgan, 286 Minora v. Battiaon, 79, 896 Minton v. Metcalfe, 464 Mirehouae v. Bamett, 878, 879, 885 Mitchell, re, 860 Mitchell' a case, 974 Mitohell'a Trust, re, 60 MitoheU v. Cobb, 984 V. Henry, 858, 860 ZXXIl Table of Oases. Mockett, re, 901, 903 MofEatt V. Comelina, 91, 101 Moggridgev. Hall, 306 Molesworth t. Snead, 806 MoUoy T. KUby, 273 Molyneux, re, 931 Money, re, 938 Montreal, Bank of, t. Cameron, 460 Moody T. Steward, 874 Moor T. Bobinson, 573 Moore, re, 41 Moore v. Dixon, 899 Moravian Society, re, 919 Mordne v. Palmer, 95 ^^-^— V. Palmer, 95 Morgan, re, 780, 782, 801 Morgan Jones, re, 198 Morgan's Patent, re, 492, 623 Morgan v. Elford, 66, 67 I T. Swansea Sanitary Authority, 910 Morris, re, 96, 500, 513 Morris v. Llanelly Bailway and Dock Company, 6 r— — V. Smith, 366 Mortimer v. Picton, 801 Mortimore v. Cragg, 348 Morton's Estate, 535 Morton t. Miller, 454, 549 Mess T. Dnnlop, 536 Mostyn v. W. Mostyn Coal and Iron Com- pany, 17, 113, 285, 300, 707 Motion V. King, (Add.) 600 Mount, re, 916, 926- Monntain v. Young, 933 Mozley v. Cowie, 698, 699 Mudge V. Adams, (Add.) 707, (Add.) 709 Mnggeridge, re, 901, 902 Muirhead v. Direct United States Cable Company, 460 Mnlcaster, re, 279 Mnlkern t. Lord, 100, 101 MnlUns T. HoweU, 193, 552, 774 Mnndel, re, 905, 909, 913, 921 Munro r. Bendall, 773 Murr T. Cooke, 56 Murray, re, 901 Mntlow's Estate, re, 510 Muttlebuiy v. Haywood, 817 Myoock T. Yorkshire Banking Com- pany, 463 Myers t. Defries, 208, 511, 552, 561, 676, 929, 940 N. Naersnoss Company v. Boyal Mail Company, (Add.) 68 Nagle, re, 194 Nagle-Gilman t. Christopher, 725, 886 Nash V. Combs, 502 T. Dickenson, 348 Nathan v. Bachelor, 720 National Building Society, re, 990 Funds Assurance Company, re, 59, 61 National Provincial Bank v. Bradl^ Bridge Company, 719 Provincial Bank v. Thomas, 730 •Provincial, &e.. Company v. Prudential Company, 437 Naylor v. Blount, 21 V. Farrer, 710 Neath and Brecon Railway Company, ex parte, 510 Neera, The, (Add.) 220 Neligan v. Eoohe, 897 Nelson, ex parte, 354 Nelson v. Booth, 11 V. Duneombe, 7 New-biggin-by-thc-Sea Gas Company v. Armstrong, 299, 54S, 816 New British Mutual Investment Com- pany V. Peed, 281, 286, 758 Newbury v. Martin, 399 Newby v. Sharpe, 698, 699 Newcomen v. Coulson, 271 NewUl V. Vanpraagh, 368 New Gas Company, re, 55, 63 New Hamburg and Brazilian Bailway Company, re, 441 Newington Local Board t. Eldridge, 287 Newland, ex parte, 822 Newman, re, 801, 802 New Siver Company y. Midland Bail- way Company, 59 New Westminster Brewery Company v. Hannah; 324. 592 Nicholas v. Dracachia, 541, 731 Nioholl V. Jones. 191, 284, 285 Nicholson t. Jackson, 710 v. Jeyes, 198 NicoU's Estates, re, 505, 506 Nives v. Nives, 841 Noad v. Murrow, 698, 699 Nobel's Explosive Company t. Jones, 593, 699, 714 Nock V. Nook, 511 Noel V. Noel, 83, 204, 584 Norfolk, Duke of, v. Arbuthnot, (Add.) 211 Normanton Iron and Steel Company; re, (Add.) 60 Norris v. Beazley, 593, 717 T. Timmins, 618 Northampton Coal Company v. Midland Waggon Company, 56, 205, 207 North Central Waggon Company v. North Wales Waggon Company, 460 Northern Counties of England, &c.. Company, re, 969 Northey, re, 785 Northfleet Brick Company, re, 957 Northrop, re, 922 North Wheal Exmouth Mining Com- pany, re, 13, 316 Northumberland, Duke of, v. Todd, 326 Northwick, ex parte, 501 Norton v. Gover, 434, 747. 749 V. London and North-Westem Railway Company, 57, 61 V. RuaseU, 623 Table of Cases. xxxiu Norwich Provident Company, re, 967, 971 Noyes, re, 793 Noyea v. Crawley, 721 Nurse v. Domford, 816 O. Oakwell Collieries, re, 61 Oastier y. Henderson, 557 O'Donnell, re, 911 Oglesby's Arbitration, re, 92 Oliver V. Lowther, 353. Omiohnnd v. Baxker, 321 O'Neile v. Clason, 1008 Oriental Bank Company v. Pitz-Gerald, 462 Origin al Hartlepool CoUieriea Cqpipany V. Gibb, 706, 707, 709 Orr V. Diaper, 273 Orrell Colliery, &o.. Company, re, 968, 987 Orr-Ewing, re, 858, 861, 862, 864 Orr-E?ving and Co. v. Johnston and Co., 850 ^—^-—^ V. Begistrar of Trade Marks, 858, 863 Ortner v. Pitzgibbon, 460 Osborn, re, 905, -908 Osbom V. Oabom, 617 Osborne, re, 603, 516, 673, 945-6 Osborne to Eowlett, re, 843 Osborne v. Hombnrg, 873 Otte V. Castle, 938 Onlton V. BadclifFe, 447 Outram v. Outram, 887 Owen, re, 124, 920, 923 V. Henshaw, 825, 865 T. Homan, 746 V. Pritchard, 364 v. Wynn, 286, 758 V. Emmens, 329 V. Woosman, 874 Oienden, re, 496 ^ Ozenham, 925 Oxford's case. Earl of, 845 P. Packer, re, 790 Packman, re, 945, 946 Paddon's Trusts, re, 500, 514 Padley v. Camphansen, 1010 Padwick V. Scott, 707, 708, 711, 716, 719 Palin V. Brooks, 458 Palk V. Clinton, 761 Palmer, re, 194, 936 Palmer v. Pitz-Wygram, 560 V. Moore, 305 Pannell, ex parte ; re England, 392 Pannell v. Nnnn, (Add.) 54, (Add.) 65 Papayanni v. Contpas, 462 Faraire v. Loibl, 703 Parby, re, 928 Pares, re, 607, 744 Paris Skating Eink Company, re, 17, 532 Parker, re, 919, 926 Parker, re ;, Cash v. Parker, 602, 747 Parker's Estate, re, 6 Parker v. Gerard, 605, 606 V. Parker, 913 v. Sidney, (Add.) 397 Parkinson V. Hanbury, 580 Parlement Beige, The, 590 Parpaite Ereres v. Dickinson, 1001 Parry, re, 796, 942 Parsons v. Harris, 455, 465 Partington, re, 802 Fascoe v. Bichards, (Add ) 290, (Add.) 465 Pashler v. Vincent, 364 Patch V. Ward, 399, 765 Patching v. Bamett, 912 Patent Ventilating Company, re, 176 Patey v. FUnt, 394 Patterson, re, 515, 516 Patterson v. Patterson, 925 Paxtonv. Bell, 207 Payne, ex pwrte, 62 Peacock, re, 786, 801, 928 Peacock v. Harper, 329 Pearce, re, (Add.) 35 Pearce v. Morris, 765 T. Spickett, 395 Pearson, re, 923 Pearson t. Lane, 718 Peart, re, 939 Pease v. Fletcher, 746 Peek V.' Trinsmaran Iron Company, 621 Peeke, re, 792 Pellas T. Neptnne Marine Insurance Company, 707 Polling V. Goddard, 938, 939 Pemberton v. Barnes, 609 Pender v. Lushington, 578 Penn v. Jack, 323 V. Lord Baltimore, 834 Pennington v. Alvin, 574 V. Dalbiac, 610 People's Garden Company, re, 25, 850 Peppitt's Estate, re, 22, 572 Percy, Ac, Company, re, 205 Perkes, re, 502 Perkins Beach Lead Mining Company, re, 850 Perkins v. Dangerfield, 561, 892 V. Slater, 324 Petar v. LaUey, (Add.) 886 Peters v. Grote, 531 Peyton, r«, 901, 915 Phen^'s Trusts, re, 660 Pheyaey v. Pheysey, 58 PhiLips, re, 925 PhiUips and Gill, re, 546 V. Harris, 461 V. Phillips, 67, 281, 282, 694, 757, 758 V. South-Western Eailway Com- pany, 556 Phillipson v. Gibbon, 838, 839 Phoenix Bessemer Steel Company, re, 64 Phosphate Sewage Company v. Hart- mont, 68, 331, 362 XXXIV Table of Gases. Pioard T. Hine, 585 . Piokford v. Brown, 33 Picknance, re, 926 Pickup T. Thames Insurance Company, 556 Pieroey t. Young, (Add.) 91, (Add.) 100, 884 Pigott V. Pigott, 736 Pike V. Pitegibbon, 465, 466, 585 V. Prank Keene and Byne, 280, 588 Piloher„re, 83, 756, 856, 1002 Pilcber v. Arden, re Brook, 824, 825, 826 Pilley V. Baylis, 879, 885 Pinkerton v. Eaaton, 323 Pinney v. Hunt, 17, 866 Piper V. Piper, 340 Pirie V. Iron, 308 Pitt V. Jones, 608, 609 Pitton V. Chatterburg, 275, 282 Planet Building Society v. Part, 704 Piatt T. Hatt, 607 Playford v. Playford, 761 Plimpton V. Spiller, 67, 68 Plowden t. Campbell, 204 Plum v. Normanton Iron Company, 282, 884 Pocook T. Eeddington, 899 Polini V. Gray, 38, 66, 68, 205, 730, 731, 748 Pomerania, The, 270 Pond V. Dimes, 307 Pontifex v. Severn, 51, 89, 468, 768 Pooley T. Bosanqnet, 529 V. Driver, 830, 887 Poplar and Blaokwall Free School, re, 153, 156, 502, 933, 936 Popple and Barratt, re, 945 Pftrter, re, 919, 922 Porter ^. West, (Add.) 825 • V. Lopes, 609, 747 T. West, 826 Post T. Marsh, (Add.) 834, (Add.) 836 Potter, re, 430 Potter T. Cotton, 54, 58, 59, (Add.) 68, ^57 V. Jackson, 193, 622 Potteries, &c.. Company t. Minor, 188 Potts, re, 794 Ponlett, Earl, T. Hood, 901 Powell, re, 907, 926 T. Jewesbuiy, 720, 721 v. Matthews, 904, 907 V. Merrett, 536 T. Williams, 878, 879, 884, 885, 886, 890 Power's Settlement, re, 514 Preston t. Lament, 1004, 1010, 1012 Prestwiok v. Polay, 192, 193 Price, re, 920, Price V. Bnry, 391 V. Plummer, 445 V. Price, 61, 283, 735, 898, 900 Primrose, re, 930 Pring, re, 930 Pritdiard v. Eoborts, 823. 824 Probert's Purchase, re, 907 Protector Bnilding Company v. Whit- lam, 361 Pryce, re, 513. Pryce v. Monmouthshire Railway Com- pany, 77, 79 Pryae's Estates, re, 194 Pulbrook, re, (Add.) 247 Pnllen v. Snelus, 702, 705 Pumell T. Great Western Kailway Company, 58, 65, 552, 560, 561 V. Hingston, 583 Purvis V. Abraham, 925 Pnttrell, re, 939, 940 Puxley, re, 788 Pye, re, 925 Qninlan, re, 912 Q. E. Eadcliffe, re, 747 Radnorshire, the, (Add.) 277 Eaebuin v. Andrews, 204 Rafael v. Ongley, 1018 Raines v. Raines, (Add.) 26 Ralph V. Carrick, 62 EandaU, re, 915 V. Campbell, 1010 Eandell v. Thompson, 91, 100, 101 EanMn v. Longbourne, 208 Raphael, re, 920 Rathbone, re, 909, 913 Rawlins, re, 784 Ray V. Barker, 461 Roadman v. Broers, 319 Real and Personal Advance Company V. McCarthy and Smith, 706, 747, 759 Reddish, etc pa/rte, 62 t Redhead's Trusts, re, 600 Redmayne v. Vanghan, 696^757, 884 Redondo v. Chaytor, 205 Recce, re, 32 Rees, re, (Add.) 24, (Add.) 409, (Add.) 480 Rees V. Metropolitan Board, 398, 506 V. WiUiams, 820 Reeve's Trusts, re, 37 Reeves v. Neville, 920 Eeg. V. Bishop of Oxford, 55 V. Scott, 1005 Regent United Stores Association, re. 955 ' ' Reiner v. Salisbury, 678 Eelph V. Horton, 1, 397 Rennie v. Beresford, 693 Renshaw, re, 619, 925 ^?»*ilf 7J; Benshaw, 697, (Add.) 471, (Add.) 691 RepnbUo of BoUvia v. National BoUvian JNavigation Company, 83Q Republic of Costa Rica v. Erlaneer 4 204,207,276,591,828,849 ^"^^er, ^ berg, 282, 287 ^^ ^^°'^- Table of Oases. XXXV Bepablio of liberia v. Eoye, 281 Republic of Peru t. Weguelin, 66, 849 Eeuss-Kostritz, Prince of, re, 328 Eeveley, re, 783 Eeynault, re, 922 Eeynolda, re, 502, 802 Ehodes T. Airedale Commissioners, 95 V. Barrett, 24 Eina Gold Washing Company, re, 954 Eicharda, re, 925 Siohards and Co. re, exparte Crawshay, 983 Eiohardson, re, (Add.) 36 Bichardson t. Elmit, 357 T. Kitchen, 363 T. Minett, 573 Eigby T. Connell, 590 Eimmington v. Hartley, 607 Eio Grande de Snl Steamship Company, re, 54 Eives T. Eives, 914 Eobarts v. Bu^e, 822 Eoberts, re, (Add.) 31, 260, 261, 933, 941 Eoberta v. Ball, 940, 942 v. Evana, 573, 596 T. Guest, 462 Eobertson v. Howard, 694, 720 V. Norris, 10 Eobin, re, 503 Eobinaon, re, 24, 860 Eobinaon t. Chadwiok, 196, 459 T. DaTies, 821 V. Eobinaon, 771 Eobson T. Lees, 15 Eochdale Property, &e., Company, re, 963 Eodney v. Eodney, 735 Eoe V. Davies, 354, 697, 699 V. Hammond, 348 Eoebuck t. Chadebet, 605 Eoffey T. Miller, 600 Eogers v. Horn, 562 V. Jones, 17 V. London, Chatham and Dover Eailway Company, 727 T. Manby, 323 Eolfe T. Maclaren, 5, 458, 465, 467, 713 Eolle's Charity, re, 924 Eooke y. Lord Kensington, 257 Eoae v. ETans, 863 ■ V. Gardden Lodge Company, 850 Eoaier, re, 941 Eoss, re, 933 Eossiter v. Miller, 702 Eotheram, re, 864 Eotherham v. Priest, 460 Eonghton v. Gibson, 609 Eonndell v. Cnrrer, 601 EonpeU v. Parsons, 454, 549 Eonrke t. White Moss Colliery Com- pany, 68 Eousillon T. EonsUlon, 489 Eowe V. Gray, 609 Eowlands t. Evans, 622 Eowley v. Adams, 904, 910, 924 Eowsell V. Morris, 20 Endd V. Eowe, 846 Euel V. TatnaU, (Add.) 470 Enmsey v. Eeed, 466 Eonnaoles v. Mesqnita, 463 Ensh, re, 362 Eushworth v. Walden, 554 Eusaell, ex parte, 915, 924 Enssell, re, 906, 907, 925 EnsseU, &c.. Companies Arbitration, re, 93 EusseU T. Enssell, 100, 446, 619 Enstomjee v. The Queen, 678 Euston V. Tobin, 55, 593, 878, 879, 885 Eutter V. Chapman, 45 V. Tregent, 465j 705 Eyan, re, 363, 915 Saffery, ex parte, 57, 60, 61 Saint Martin's, Eeotor of, expa/rte, 500 St. Nazaire Land Company, re, 410. 492, 774 St. Olaf, The, 464 Saint Pancraa Burial Ground, 508 SaUabury, Marquid of, re, 944 Salt V. Cooper, (Add.) 353, 747, 748, » (Add.) 752 Saltash, Mayor of, v. Goodman, (Add.) 67 Samuel v. Samuel, 20 Sanders v. Homer, 914 Saner v. BEton, 221 Saner v. Deavin, 883 Sansom v. Sansom, 355 Sargeaut v. Eead, 434, 435, 621, 748, 749 Sarpedon, the, 7l7 Saumarez, re, 925 Saunders v. Jones, 274, 275 Saunderaon, re, 32 Savage, re, 675, 677 Savill V. Brown, 275 Sawston, Eeotor of, ex parte, 514 Saxby v. Easterbrook, 433, 892 V. Gloucester Waggon Company. 769 Schibaby v. The The Westeuholtz, 489 Schneider v. Batt, (Add.) 719 Scliofield, re, 906 Schofield y. Barlow, (Add.) 62 Soholefield v. Lockwood, 824 Schomberg v. Zoebelli, 693 Scott V. Cumberland, 33 V. Heisoh, 800 y. Miller, 278 y. Eoyal Wax Candle Company, 451, 1010 v. Turner, (Add.) 62 Scully V. Lord Dundonald, 193 Scutt V. Freeman, 468 Seaham, The, 866 Seaman, ex parte, 828 re, Wilson v. Hood, 825 Secretary for War v. Chubb, 435 Seear v. Lawaon, 599, (Add.) 600, 688 Senior y. Hereford, 604 Sexton Barns Estate, re, 798, 802 Shakespeare Walk School, re, 513 XXXVl Table of Gases. Shardlow v. CotteriU, (Add.) 721 Sharp, re, 866 Sharp V. Pickett, (Add.) 619 Sharpe, re, 941 Sbarpe, Stewart, and Co., re, 178 bharpe v. Lush, 26, 34, 135, 136 Sharpley, re, 925 Shaw, re, 901 Shaw V. Brown (Add.) 868 V. Hope, 559 • T. Hudson, (Add.) 851 V. Neale, 822 Sheehan t. Great Eastern Railway Company, lAdd.) 567, (Add.) 593, (Add.) 623 Shelford v. South and East Coast Bail- way Company, 460 Shelmerdine, re, 919 Shelton, 535 Shepheard, re, 780, 803 Shepherd v. Beane, 549 T. ChurohiU, 917, 932 Sheppard, re, 921, 924 Sherard, re, 931 Sheward v. Lord Lonsdale, 275 Shipperdson, re, 922 Shippey v. Grey, 357, 826 Shipton-under Wyohwood, Eeotor of, ex parte, 514 Shipway v. BaU, (Add.) 535 Shoetensaok T. Price and Co., 61 Shore t. Shore, 898 Sickles T. Morris, 63 Siddons v. Lawrence, 208 Silber Light Company t. Silber, 577, 578 SiUar, re, 937 Simmons v. Storer, (Add.) 240 Simpson, Davies, and Sons, re, 862, Simpson v. Denny, 568, 583, 606 V. Ritchie, 617 Simson, re, 901 Singer Manufacturing Company v. Loog, 624, 885 T. Wilson, 474 Singleton v. Hopkinson, 618 V. TonJinson, 34, 36 Sir Charles Napier, The, (Add.) 722 Sir John Moore Gold Mining Company, re, 985 Sir Robert Peel's School, 1S3 Skitter, re, 905, 908, 912 Skynner v. Pelichet, 916 Slack, re, 797 T. Midland Railway Company, 839, (Add.) 225, (Add.) 438 Slade T. Tucker, 278 Slowman v. Government of New Zea- land, 1012 Sloper, re, 925 Smirthwaite, re, 920, 925 Smith, ex parte, 718 Smith, re, 293, 294, 366, 458, 788, 800, 917, 922, 942, 1010 Smith, re, Hutchinson v. Ward, 8, 880 Smith V. Anderson, 932 V. Boucher, 908, 932 T. CoweU, (Add.) 353, (Add.) 440 V. Dale, (Add.) 816 V. Day, 433 T. De Berg, 278 v. Dobbin, 86, 451 V. Dyneyor, Dyffryn, &o.. Col- lieries Company, 983 Smith T. GrineUey, 61 V. Leigh, 844 T. Morgan, (Add.) 28 T. Parkside Mining Company, (Add.) 98 T. Richardson, 700 V. Smith, 908, 912 T. White, (Add.) 68 T. Wilson, 1001 T. Winter, 824 Smyth, re, 925 Sneesby t. Lancashire and Yorkshire Railway Company, 62 SneU T. Hyatt, 600 SoKcitor, re, 363, 549, 850, 812 SoUey T. Wood, 815 South-Eastern Railway Company t. Railway Commissioners, 191 South Kensington Stores, re, 961 South of France Pottery Works Com- pany, re, 25, 850 Southwark and Tauxhall Water Com- pany V. Quick, 285 Southwell T. Bowditch, 66 Southwold Railway Company's BiU, re, 500, 651 Sowry, re, 501 Sparks, re, 930 Sparrow, re, 919, 923 Spawforth, re, 915 Speer's Trusts, re, 501, 802 Sperling v. Bochfort, 536 Spike V. Harding, 112 Spiller, re, 903 Spiller T. Paris Skating Rink Companv. 308 Spratt's Patent t. Ward, 624, 885 SpringaU & Goldsack's Contract, re, 805, 915, 946 Sprunt T. Pngh, 364 Spurr T. Hall, 703, 705 Spurstowe's Charity, re, 502 Spurway's Settled Estates, 795 Staoe T. Gage, 568, 794 Stafford and Uttoxeter Railway Com- pany, re, 190 V. Coxon, 836 Stahlschmidt v. Walford, 99, 271 Stainbank v. Beckett, (Add.) 63 Stainton v. Carron Company, 192 Standard Discount Company v. Barteu 58 ■ T. La Grange, Staudering v. HaU, 503, 535, 616 Stanhope Silkstone Collieries Comnanv re, 357 r j, Table of Oases. xxxvu Stanafieldv. Hobaon, 763 Stapleton, re, 553 Stead, re, 508 Stebbing v. Atlee, 12, 13, 14 Sted v. Dixon, 711, 718 Steele v. Hutohinga, (Add.) 103 Stephens, ex parte, 860, 863 Sterry, re, 508 Stevens t. MidhantsBailway Company, 190 Stewart, re, 917 Stewart and Bros., re, 955 Stewart t. Bank of England, 1010, 1013 V. Gladstone, 308, 619 Stirling t. Du Barry, 856 Stirling-Maxwell v. Cartwright, 20 Stock's Estate, re, 502 Stock V. Hooper'a Telegraph Worka, 68 Stooksbridge, re, 663 • Stockton Iron Eomaoe, re, 57, 58, 60 Stokes, re, 922 T. Grant, 705 Stokes T. Sromshroder, (Add.) 62 Stone, re, 901 Stone T. JSennett, 596 T. Stone, 914 Stooke V. Taylor, (Add.) 209 . Storer t. Simmons, 331 Storey v. WaddeU, 834, 866, 867 Storforth Lane CollieiT Company, re, 958 Stow T. Corporation of Maidstone, 207, 208 Strana t. Francis, 192 Street t. Gover, 707, 715 Strelley v. Pearson, 433, 730, 731, (Add.) 266 Strickland t. Strickland, 597 Strutt, re, 794, 795 Stubbs'a Estate, re, 25, 867, 868 Stnbbs V. Boyle, 773 Sturdy, re, 811 Sturla T. Precoia, 55, 204, 207 Sngden v. Lord St. Leonards, 65 Sugg T. Silver, 878, 879, 888 Snflivan t. fiivingtou, 772 Sultan of Turkey t. Union Bank of London, 413, 734 Summers, re, 31 Sutcliffe T. James, 700, 757, 759 Sutton, re, 933, 941 Swaine v. Denby, 606 Swan, re, 933, 941 Swann v. Swann, (Add.) 573, 815, 846, 1002 Swansea, Mayor of, v. Quirk, 279 Swansea Shipping Company t. Duncan, 717, 1010 Swift T. Nunn, 556 Swindell v. Birmingham Syndicate, 60, 878, 879, 885 Swinfen v. Swinfen, 192 Syers v. Syers, 619, 620 Sykes v. Firth, 885 V. Haig, (Add.) 323 V. Howarth, 624 V. Schofield, 294, 608 Symes v. Hughes, 895 V. Pugh, 901 Symouds y. Jenkins, 465 T , re, 901 Taitt, re, 906 Talbot V. Taibot, 575 Talbot, Earl v. Hope— Scott, 432 TampluL T. James, 836 Tapp T. Jones, 357 Tarbntt, re, 792, 795, 796 Tardrew v. Howell, 824 Tasmanian Bailway Company v. Clark, 884 Tatham, re, 922 Tawell V. Slate Company, 756, 1012 Taylor, ex parte, 788 , re, 424, 501, (Add.) 661, 792, 795, 801, 901, 913 Taylor t. Batten, 283 V. Chichester and Midhurst Rail- way Company, 605 T. Dowlen, 54, 899 ■ T. Duokett, 693, 806 T. Eckersley, 747, 748, 750 T. Fraser, 204 T. Grange, 605 T. Jones, 855 V. Keily, 329 T. Nioholls, 728 T. Taylor, 788 Taylor's case, 59, 61 Tebb V. Lewis, 718 Telegraph Construction Company, re, 178 Tempest, re, 922 Temple Church Lands, re, 513 Templer, re, 908 Tenant t. EUis, (Add.) 208 T. Prenchard, 392 Terrell v. Matthews, 896 Thackeray t. Parker; 618 Thames Ferry Company, re, 867, 963 Tharp, re, 744 Theodor Korner, The, 285 Thorn T. Smith, 587 Thomas v. Blaom, 420 V. Parry, 52 V. The Queen, 678, 681 T. Walker, 924 T. Williams, 432, (Add.) 433 Thompson, ex parte, 823 , re, 782, 786, 803, 901 Thompson t. Dunn, (Add.) 275 V. Marshall, 461 Thorley's Cattle Food Company v. Massam, 433 Thorn t. Smith, 1007 Thorne, re, 794 Thome v. Seel, 461 Thomhill v. Millbank, 802 Thornton, re, 928, 942 Thorp, re, 795 Thorp V. Honldsworth, 689, 701 .XXXVIU Tabl^ of Gases. Throckmorton t. Crowley, 822 Tibbett, re, 794 Tiohbome t. Tiohborne, 570 Tildesley v. Harper, 65, 466, 592, 593, 691, 702 Tilney t. Stanafield, 363 Timma, re, 867 Tipton Green Company v. Tipton Moat Company, 7 Tobin V. The Qneen, 678, 681 Tolson V. Sheard, 785 Tomline v. The Qneen, 281, 681 TonHnBon v. Oartledge, 437 ToomerT. London, Chatham, and Dover Railway Company, 191 Tophapi V. Burgoyne, 535 Tottenham r. Barry, 1011 Tournay, ex parte, 938 Tozer v. WaKord, 734 Tracy v. Open Stock Exchange, 721 Trail v. Jackson, 60 Travis v. Illingworth, 919 Trelevan v. Bray, 708, 711, 716, 720 Trethewy v. Helyar, 38 Triok, re, 941 Trotter v. Maclean, (Add.) 208 Troughton v. Binks, 762 Trowell T. Shenton, 59, 723 Trower, re, 940 Tuck, re, 901, 902 TnfneU, re, 678, 682 TtOloch V. TnUooh, 736 TunstaU, re, 800, 922 TumbnU v. Janson, 52 Turner v. Hednesford Gas Company, 708 : T. Heyland, 208 V. Morgan, 605 V. Bennoldson, 38 V. Sanson, 722 Tnrquand v. Pearson, 592, 593, 695, 699, 816 ■ V. Wilson, 840, 841 Tweedy, re, 925 Twycross v. Grant, 595 Twynam v. Porter, 823, 825 Tyler, re, 920 Tynn v. BiUingsley, 331 Underwood, re, 904, 909 Underwood v. Secretary for India. 283 Ungley v. Ungley, 63 Union Bank of Emgston-upon-Hnll, re. 985 Union Bank of London v. Ingram, 762, 765 ; ' V. Manby, 282 United States of America v. Wagner, 581 ' Upperton v. Nicholson, 839, 843 Umqnay, &o., Bailway Companv, re. 965 J f ., , UsiU V. Brearley, 68 V. Val de Travers Asphalte Company v. London Tramways Company, 592, 593 Vale T. Oppert, 2, 3, 66, 68 Yallance v. Midland Land and Invest- ment Corporation, 594 Vane v. Vane, 335, 531 Vant, re, 818, 820 Vavassenr v. Krnpp, 591, 710, (Add.) 270 Veal V. Veal, 661 Veale v. Warner, 97 Velati V. Braham, 731 Venables v. Schweitzer, 12 yenner, re, 789 Verbeeok v. Hnnnex, 873, (Add.) 265 Verminok v. Edwards, (Add.), 286 Vernon V. St. James's Vestry, 323 VerraU v. Cathcart, 610 Vickers, re, 919, 923 Vickers v. BeU, 20 Vidler v. Pairott, 804 Vincent, re, 21 Viney, re, 824 ■^—~ ex parte, 60 Vivar, The, 1010 Vyse V. Foster, 620 W. WaddeU's Contract, re, 945, 946 Waddell v. Blockey, 57, 61, 68, 660 v. Tollman, 392 Waddilovev. Taylor, 817, 853 Wade, re, 789 WagstafEe v. Anderson, 282, 283 Wainwrieht, re, 744 Wainwright v. Bland, 308 Wake V. Wake, 910, 911 Wakelee v. Davis, 721 Wall V. Eogers, 191, 192 WaUingford v. Mutual Society, 461, 462, 856 Walker, re, 906, 908, 923, 940 Walker v. Banagher Distillery Com- pany, 26, 860 v. Blaokmore, 600 V. Budden, 66 V. Easterley, 204 V. Hicks, 1001 V. Eobinaon, 293, 295 f. Seligmann, 480 Wallace, re, 788 WaJlace v. Greenwood, (Add.) 607 WaUis V. Hepburn, 290, 697 V. Litchfield, 773 Walsh V. Waaon, 851 Walters v. Woodbridge, 900 "^1009" ''■ '^'^■^"^^ Salvage Company, Ward, re, 901 Ward V. Eyre, 818, 820 V. Hall, 768 V. Pffley, (Add.) 90, 768, 769 Table of Gases. xxxix Ward V. Smfield, (Add.) 322 V. Swift, 816 V. "Wyld, 872 Waring, re, 935, 9U Warue T. Dell, 17 Warner v. Baynes, 605 T. Mosses, (Add.) 304, (Add.) 305, (Add.) 324 V. Mnrdook, 880, 890 T. Twining, 711 Warwick, &o.. Navigation v. Birming- ham Canal Navigation, 194 Washoe t. Ferguson, 205 Watidn, ex parte, 816 Watson T. Cave, (Add.) 5T V. Coleman, 846 V. Great Western Railway Company, (Add.) 232 T. Bodwell, 45, 695, 699 Watson T. Eow, 816 Watt V. Barnet, 403, 1013 V. Leach, 576 Watts, re, 919 Watts V. Watts, 64 Wayn v. Lewis, 396 Waynes' Merthyr Company v. Powell's Dyfeyn Steam Company, 286 Way's Settlement, re, 940 Webb, re, 535 Webb V. Bomford, 278 V. East, 285, 286 —^— V. ManseU, 61 Webster v. British Empire Company, 569 V. Whewall, 286, 433 Wedderbnm, re, 901 Wedderbnrn v. Pickering, 878, 879, 885, 886 Weeding, re, 905, 926 Wellesley v. Momington, 851 V. WeUesley, 931 WeUs V. Chelmsford Local Board, (Add.) 507 Wells V. Malbon, 945 Welply V. Buhl, 206, 290, 874 West V. Downman, 867 V. White, 878, 885, 886, 890 Westbonme Grove Drapery Company Limited, The, re, 986 Westbrooke, re, 675 Western and Brazilian Telegraph Com- pany V. Bibby, 960 Western District Bank, re, The, 987 Western of Canada, &o., Company, re, 314 Westman v Aktiebolaget Ekmans Mekaniska Snickarefabrik, 1010 West of England Bank v. Canton In- surance Company, 288 V. NichoUs, 279 Western of Canada, &a., Company v. Walker, 205 Weston's Case, 64 Westwood, re, 914 Whalley v. WhaUey, 817 Wheeler, re, 924 Whetstone v. Lewis, 22, 606, 756 Whistler v. Hancock, 290, 697 Whitaker v. Robinson, 25, 868 V. Thnrston, 454, 549 White, re, 915, 916 White and Hindle's Contract, 945 White V. Boby, 437 V. Bromige, 849 V. Herriok, 535 V. James, 736 V. Simmons, 392 V. Witt, 58, 65 Whitehaven, Bank of, v. Thompson, 1013 Whiteley, re, 864 Whitfield V. Poe, 847 WhitKng, re, 939 Whitton, re, 941 Wickens, re, 926 Wicks V. Wood, 445 Wideery v. Tapper, 359, 851 Wigan Junction Eailway, re, 663 Wilding V. Bolder, 922 Wilkes, re, (Add.) 506 Wilks V. Groom, 906, 908 V. Judge, (Add.) 58 Wilkinson, re, 906 Wilkinson's Trusts, re, 910 Williams, re, 430, 788, 905, 941 Williams v. Aylesbury EaUway Com- pany, 502, 802 Williams v. Bristol Marine Insurance Co., 960 Williams v. Cardwell, 454, 549 V. Games, 608 V. Guest, 658 V. Llanelly Company, 597 V. Meakin, 562, 563 V. South-Eastern Railway Com- pany, 719 V. Williams, 618, 788 Williamson v. Barber, (Add.) 12 V. Cotterill, (Add.) 539 Wilkes V. Saunion, 7 Wilkinson, re, 513 WOkinson's Estates, re, 499 Wilkinson's Mortgage Trusts, re, 194 Wilts V. Parker, 721 Willcock V. Terrell, 355 Willis, re, 930 Willis V. Earl Howe, 721 WUlmott V. Barber, 835, 836 WUlway, re, 194 Wilson, re, 781 Wilson V. Allen, 843, 844 V. Church, 65, 66, 67, 272, 276, 345, 567, 594, 731 V. Dundas, 357, 358 V. Gann, 624 - V. Northampton Eailway Com- pany, 284, 286 V. Rhodes, 582 V. Bound, 823 V. Watson, 944 - V. Wilson, 697 Wilton V. Hill, 191 Winder, ex parte, 607, 508, 509 Windle v. Stephens, 836 xl Table of Oases. WingroTS v. Thompson, 569, S97 "VFJnkworth v. Winkworth, 940 Winatone's case, 971 Wmteringham's Trusts, 910, 925 Wiiiterfield t. Bradnnm, 206 Wise, re, 912, 925, 926 Wiseman, re, 930 Witham v. Vane, 719, 720 «Withemaea Brickworks Companj, re, 970 Witt T. Corcoran, 5S T. Parker, 56, 444 WoUaston v. WoUaston, 21, 571 Wolverhampton, Ac, Company v. Bond, 1013 Wood, re, 802, 906, 925, 940 Wood's Estate, re, 298, 506 Wood T. Anglo-Italian Bank, 277, 286 V. Bamioott, 61, 52, 772, 773 V. Beetlestone, 924, 931 T. Hamblet, 889, 890 V. Kay, 886 v. Wakefield, 845 Woodbttm, re, 941 Woodcock, re, 789, 801, 803 WoodfaU T. Arbnthnot, 917, 928 Woodfine, re, 323 Woodgate, re, 919 Woods T. M'Innes, 1011 T. Oliver, 13 Woolard, re, 940 Woolf V. Pemberton, 574 Woollanda v. Crowther, 536 Wormsley v. Sturt, 12, 13 Worraker v. Pryer, 20 Worthington, re, 535, 863 Wortley, re, 594, 595 Wragg, re, 924 Wreck Becoyery and Salvage Company, re, 963 Wrench v. Wynne, 851 Wright, re, 940, 941 Wright V. Clifford; 484 V. Freeman, 443 V. King, 817 V. Monarch InvestmentBnil^g Society, 101 V. Eedgrave, 431, 860 ' V. Swindon, Where two suits came on to be heard together, the court made one decree in both suits, and left it to be determined in chambers who should have the conduct of the proceedings : (Ayok. 342.) The order must have been fairly obtained : (Dan. 701 ; Aycfe, 342 ; Shades v. Bwrra, L. Rep. 12 Eq. 479; 24 L. T. Rep. N. S. 654; 19W.R.871.) An action may be partially stayed: (jBe Avrd, W. N. 1878. p. 24; 26 W. R. 441.) The order to stay is obtained on motion, or, if the proceedings, are in chambers, on summons, notice being in each case given to aU parties in each suit : (Dan. 700.) Under ordinary circumstances the conduct of the proceedings will be given to the plaintiff in the first suit in point of time : (Dan. 702 ; Ayck. Preference wUl be given to a residuary legatee rather than a creditor : (Id.) The usual order is that the costs of all parties to the second suit who Administration Action. 25. are parties to the first suit up to notice of the judgment, shall be costs in the first suit, and the costs of persons not parties thereto shall be paid by the executor and added to his own, if he admit assets ; if not that such party shall add his costs to his claim and prove for them in the first suit : (Daa. 700 ; Ayck. 342.) [And see Infant, Parties, Stating Pboceedings.] Where the suits are in difEerent branches of the Chancery Division the 'Cause in which no judgment or administration order has been made must be transferred to the ]udge who has made such a judgment or order, and application made for an order in both suits to stay proceedings in that wluch is least advanced : (Dan. 698 ; Ayck. 342 ; and see Teansfek.) It is the duty of the personal representative to apply as soon as the judgment or order is made ; but on his neglect, plaintiff in the suit in which it has been made, or any party interested, though not a party to the suit to be stayed, may apply : (Dan. 699.) 2. Actions in Othee Divisions. As, after a decree for administration, the Court of Chancery formerly granted an injunction restraining a creditor not a party to the suit from proceeding against the estate at law (Dan. 1463), so an action commenced in another division may, prior to any transfer to the Chancery Division, be stayed : (J. A., 1873, s. 24, sub-s. 5 ; Walker v. Banagher Distillery Company, L. Rep. 1 Q. B. Div. 129 ; 33 L. T. Rep. N". S. 502 ; 46 L. J. 135, Q. B.) The order cannot be made by a judge of the Chancery Division, but must be obtained from the division in which the creditor's action is pending : {Be The People's Garden Company, L. Rep. 1 Ch. Div. 44 ; 45 L. J. 129, Ch. ; 24 W. R. 40 ; Be South of France Pottery Works SifHdieate, W. N". 1877, p. 206 ; 37 L. T. Rep. N. S. 260 ; 25 W. R. 870.) Proceedings taken by a mortgagee of the testator or his personal representative in another division, to enforce or protect his security, will not be stayed because an administration action has been commenced : (Crowle V. Mussell, L. Rep. 4 0. P. Div. 186 ; 39 L. T. Rep. N. S. 320 ; 48 L. J. 76, C. P. ; 27 W. il. 84.) The right of a creditor, whose action is stayed, to costs depends upon ■whether Mb debt is allowed : (Ayck. 515.) XL TRASrSPER. When an order has been made by any judge of the Chancery Division .... for the administration of the assets of any testator or intestate, the judge in whose court such .... administration shall be pending shall have power, without any further consent, to order the transfer to such judge of any action pending in any other division brought or continued .... by or against the executors or administrators of the testator or intestate whose assets are being so administered : (O. LI., r. 2a, June, 1876.) The plaintiffs in the action transferred are at liberty only to prove for their claim and costs in the administration, and obtain no priority, even when they have obtained, an order nisi to sign judgment : (Be Stubhs's Estate, L. Rep. 8 Ch. Div. 154 ; 47 L. J. 671, Ch. ; 26 W. R. 736.) The application should be made eaCparte : {Field v. Field, W. IS., 1877, p. 98 ; Whitaker v. Bohinson, W. N., 1877, p. 201.) Any action transferred to the Chancery Division shall, by the order directing the transfer, be directed to be assigned to one of the judges of such division to be named in the order : (0. LL, r. 3.) The action must have been brought ia another division against the executor or administrator, qua executor or administrator : {Chapman v. 26 Admimstration Action. Mason, W. N., 1879, p. 93 ; 40 L. T. Bep. N. S. 678) ; but it may be transferred, notwithstanding it is brou^t against him personally, if ia that character, e.g., for a devastavit : (Be Timms, W. N., 1878, p. 141 ; 38 L. T. Rep. N. S. 679 ; 47 L. J. 831, Oh. ; 26 W. R. 692.) XII. ACCOUNTS AND ANSWERS TO INQUIRIES. 1. Affidavit of Peksonai, Repbesbntativb. The executor or administrator makes an affidavit setting forth in schedules the state of the assets of the deceased at the respective times of his death, and the swearing of the affidavits : (Dan. 1123-5.) The trustee of the real estate must make an affidavit scheduling thereto the short particulars of the testator's real estate, whether in possession or otherwise ; and, in a separate schedule, the incumbrances and parts of the estates respectively affected thereby : (Dan. 1125.) A form of affidavit, to be varied only so far as may be necessary to meet the circumstances of the case, is given in schedule 6 to the Chancery Regulations of August, 1857. 2. Accounts. The accounts must be exhibited, and not annexed to the affidavit. [See ACCOITNTS.] Forms of accounts of personal estate and of rents and profits are given in schedules 4 and 5 to the Chancery Regulations of August, 1857. 3. Settled AccomifTS. Settled accounts may be allowed in administration actions without any express directions : (Dan. 1137.) 4. Peesons Entitled to Attend. Persons served with notice of decree, who have obtained an order of course giving them leave to attend, must, after judgment and before the accounts and iaquiries are taken, attend before the chief clerk, that he may select which of them shall attend the taking of the accounts at the expense of the estate. Those who afterwards attend without such special order have to pay their own costs, and costs occasioned by their attendance : [Sharp v. Lush, L. Rep. 10 Oh. Div. 468 : 48 L. J. Oh. 231 ; 27W. R. 528.) As to proceedings on leaving account at chambers, surcharging, vouching, directions, see Accoitnt. 5. Ptjethbb Accounts. After an ordinary administration decree, when fraud has been charged by a partner of the deceased testator, and ordinary partnership accounts have been added by consent and fraud found, an additional account of the items of fraud, together with interest can be ordered without an action for such account: (Barber v. Maokrell, L. Rep. 12 Oh. Div. 534; 41 L. T. Rep. N. S. 201 ; 27 W. R. 894.) Xin. PAYMENT OF BALANCES INTO COURT. Except in the case of a creditor suing for his own debt only, an order will be made on summons that so much of the trust estate as the personiil representative or trustee admits to be in his hands, be paid into court, without proof of breach of trust or of danger to the property (Dan. 1620) ; and so when a balance is admitted to be due to the estate : (Dan. 113?.) XIY. ADVERTISEMENTS. 1. Foe Claimants othee than Oeeditoes. Advertisements for claimants [other than creditors] shall fix a time for the claimants to come in and prove their claims, and shall appoint a Admimstration Action. 27 day for the hearing and adjudication thereon : (C. O. 35, r. 37 ; Oh. O. May, 1865, r. 11.) A form of advertisement for chiimants [other than creditors] subject to such variation as circumstances may require, is given in schedme L. to the Consolidated Orders of the Oourt of Ohancery. 2. FOK Creditors. Every advertisement for creditors affecting the estate of a deceased person, which shall be issued pursuant to any [judgment] or order, shall direct every creditor, by a time to be thereby limited, to send to the executor or administrator of the deceased, or to such other party as the judge shall direct, or to his solicitor, to be named and described in such advertisement, the name and address of such creditor, and the full particulars of his claim, and a statement of his account, and the nature of the security (if any) held by him : (^Chan. O. May, 1865, r. 1.) A form (to be used with suel^ variations as circumstances may require) is given in the schedule to the same order. 3. Peepaeation. The advertisement must be prepared by the party prosecuting the judgment 6r order, and approved and signed by the chief clerk: (C. O. 35, r. 36.) Only one advertisement is issued, unless for special reasons it is thought necessary (Id., r. 35), and it may be repeated : {Id.) 4. PrBLICATION. [The signature of the chief clerk] is sufficient authority to the printer of the Gazette to insert the same : (0. O. 35, r. 36.) The advertisement may be directed to be in such other papers as are thought necessary : (0. O. 35, r. 35.) If the testator died in the country or a colony, insertions in provincial or colonial papers are generally directed : (Dan. 1092, Ayck. 510.) 5. Peodttction op Gazette, &o. The parW prosecuting the judgment should procure copies of the Gazette and other papers containing the advertisements, and produce them as evidence : (Dan. 1092.) XV. CLAIMS. 1. Pailuke to Ciaim. (a) By persons other than Creditors. Where a [judgment] or order is made, whether in court or in cham- bers, directing an account of debts, claims, or liabilities, or an inquiry for heirs, next of kin, or other unascertained persons, unless otherwise ordered, all persons other than creditors 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 : (C. O. 35, r. 12.) (6) By Creditors. After the time fixed by the advertisement, no claim shall be received (except .... in case of an adjournment) unless the judge shall think fit to give special leave upon application made by summons, andthen upon su(3i terms and conditions as to costs and otherwise as the judge shall direct : (Oh. O., May, 1865, r. 10.) A creditor may come in as long' as there are assets undistributed : -{Be Metcalfe, L. Rep. 13 Oh. Div. 236; 41 L. T. Rep. N. S. 572.) 2. Entet of Claims by Peesons other than Ceeditoes, and Notice theeeop. Claimants [other than creditors] coming in pursuant to advertisement 28 Administration Action. shall enter their claims at the chambers of the judge in the " Claims Book," for the day appointed for hearing by the advertisement, and shall give notice thereof and of the affidavit filed to the solicitors in the cauae, within the time specified in the advertisement for bringing in clsama: (0. O. 35, r. 38 ; Oh. O., May, 1865, r. IL) Upon the notice of a claim having been entered at chambers .... sferved upon the solicitors in the cause the number of the entry of the claim is to be stated : (Oh. Beg. Aug. 1857, r. 9.) , 3. Affidavit in Suppoet op Claims othee than those op Ckeditobs. The affidavit in support must state the nature and particulars of the claim : (Dam. 1093.) The claimants filin g affidavits shall not be required to take office copies ; but the party prosecuting the cause or matter shall take office copies, and produce th^ same at the hearing, unless the judge shall otherwise direct : (0. O. 35, r. 39.) 4. Ceoss-bxamination. The claimant may be cross-examined on his affidavit. 5. Claims by Ceeditoes. No creditor need make any affidavit or attend in support of his cMm (except to produce his security) unless he is served with a notice requiring him to do so, as hereinafter provided : (Oh. O. May, 1865, r. 2, and see post, 12.) The word " creditor " includes a person claiming any debt or liab^y affecting the personal estate of a deceased person under any order made pursuant to 13 & 14 Vict. c. 36 : (Oh. O. May, 1865, r. 16.) A creditor proving a debt may be cross-exiunined before an examiner : (Ayek. 513.) A creditor may compel the personal representative to produce upon oath all documents which may enable him to make out his case : (Ayck. 513.) ' ^ 6. Peodtjction op Ceeditoes' Sectteity and Documents. Every creditor shall produce the seeurity (if amy) held by him, before the judge, at such times as shall be specified in the advertisement for that purpose, being the time appointed for adjudicating on the claims, and every creditor shall, if required by notice in writing, to be given by the executor and administrator of the deceased, or by such other party as the judge shall direct, produce all other deeds and documents necessary to substantiate his claim before the judge, at his chambers, at such time as shall be specified in such notice : (Oh. O. May, 1865, r. 3.) A form of notice to produce documents is given in the schedule tq the same, order. Every notice .... shall, unless the judge shall otherwise direct, be deemed sufficiently given and solved if transmitted by the post prepaid, to the creditor to be served, according to the address given by such creditor in the claim sent in by him pursuamt to the advertisement, or, in case such creditor shall have employed a solicitor, to such solicitor according to the address given by him : (Oh. O. May, 1866, r. 13.) 7. FAiLtrEE BY Ceeditoe to PEODtrcE Secfeity oe Documents. In case amy creditor shall neglect or refuse [so to do], he [wiU] nat be allowed amy costs of provimg his claim, unless the judse .... otherwise directs: (Ch. O.May, 1865, r. 4.) 8. Examination op Ceeditoes' Claims. The executor or administrator of the deceased or such other pariy as Administration Action. 29 the judge shall direct, shall examine the claims sent in pursuant to the adTertisement, and shall ascertain, so far as he is able, to which of such claims the estate of the deceased is justly liable : (Oh. O. May, 1865, r. 5.) 9. Affidavit or Investigation. The executor or administrator must, seven clear days at least prior to the day of adjudication, file an affidavit, to be made by such executor or administraljor, or one of the executors or administrators, or such other party, either alone or jointly with his solicitor, or other competent person, or otherwise as the judge shall direct, verifying a list of the claims the particulars of which have been sent in pursuant to the advertisement, and stating to which of such claims, or parts thereof respectively, the estate of the deceased is, in the opinion of the deponent, justly liable, and his belief that such claims, or parts thereof respectively, are justly due and proper to be allowed, and the reasons for such belief : (Oh. O. May, 1865, r. 6.) A form of affidavit (to be varied according to circumstances, if necessary) is given in the schedule to the same order. In case the judge shall think fit so to direct, the making of the affidavit .... shall be postponed till after the day appointed for adjudication, and shall then be subject to such directions as the judge may give : (Oh. O. May, 1865, r. 6.) Postponement is generally considered when advertisements are directed : (Dan. 1095.) 10. Adjudication on Claims. In any cause for the administration of the estate of a deceased person, no party to the cause other than the executor or administrator shall, unless by leave of the judge, be entitled to appear either in court or in chambers on the claim of any person not a party to the cause against the estate of the deceased in respect of any debt or liability. The judge may direct any^ther party to the cause to appear, either in addition to or in the place of the executor or administrator, upon such terms as to costs or otherwise as he shaU think fit : (O. XVI., r. 12b., April, 1880.) At the time appointed for adjudicating upon the claims, or at any adjournment thereof, the judge may, in ms discretion, allow any of the claims, or any part thereof respectively, without proof by the creditors, and direct such investigation of all or any of the claims not allowed, and require such further particulars, information, or evidence relating thereto, as he may think fit, and may, if he so think fit, require any creditor to attend and prove his claim, or any part thereof : (Oh. O. May, 1865, r. 7.) 11. AojOrENMENT OP ADJUDICATION. Where, on the day appointed for hearing the claims, any of them remain undisposed o^ an adjournment day for hearing such claims shall be fixed; and where further evidence is to be adduced, a time may be named withib which the evidence on both sides is to be closed; and directions may be given as to the mode in which such evidence is to be adduced : (0. O. 35, r. 40.) The adjudication on such claims [of creditors] as are not .... allowed [at the adjudication] shall be adjourned to a time to be then fixed : (Oh. O. May, 1865, r. 7.) 12. Notices as to Oeeditoes' Olaims. Notice shall be given by the executor or administrator, or such other party as the judge shall direct, to every creditor whose claiin, or any part thereof, has been allowed without proof by the creditor, of such allowance, and to every such creditor as the judge shall direct, to attend and prove his claim, or such part thereof as is not allowed, by a time to be named in 30 Administration Action. such notice, not being less than seven days after such notice, and to attend at a time to be therein named, being the time to which the adjudication thereon shall have been adjourned; and in case any creditor shall not comply with such notice, his claim, or such part thereof as aforesaid, shall be disallowed : (Ch. O. May, 1865, r. 8.) Forms of notices are given in the schedule to the same order. 13. Claims StrBSEQUENT to Time Adveetised. (a.) By Claimants other than Creditors. Any claimant [other than a creditor] who has not before entered his claim, may be heard on such adjournment day, provided he has entered his claim and filed his affidavit four clear days prior to such day, and no certificate of debts or claims has been made in the mean time : (0. O. 35, r. 41 ; Oh. O. May, 1865, r. 11.) (6) By creditor. Any creditor who has not before sent in the particulars of his claim pursuant to the advertisement may do so four clear days previous to any day to which the adjudication is-adjoumed : (Ch. O., May, 1865, r. 9.) 14. Special Leave to Claim. After the time fixed by the advertisement, no claims shall be received (except, as before provided, in case of an adjournment), unless the judge at chambers shall think fit to give special leave, upon application made by summons, and then upon such terms and conditions as to costs and other- wise as the judge shaU thint fit: (C. O. 35, r. 43; abrogated, as to creditors, by Oh. O., May, 1865, r. 11. As to creditors, see ante, (6).) After the time limited by the advertisement and the chief clerk's certificate, the applicatioh may be by petition, motion, or summons : (Dan. 1097; Seton, 4th edit. 831.) In general the right to come in on terms only lasts until the distribution of the fund: (Seton, 832.) If part only remains in court a proportion of debt only can be proved for: {Id.) A 'special case must be made out : (Id.) The applicant is generally ordered to pay the costs : (Dan. 1097.) If a claim sent in after the proper time is allowed after the hearing on further consideration there will be a direction for payment : (Seton, 4th edit. 828.) 15. Making Entry of Allowance op Claim. The chief clerk makes the entry of allowed claims which form items in his certificate : (Dan. 1100.) . 16. List op Allowed Claims. ^ J ?*j!i*^ claims allowed shaU, when required by the judge, be made out and left in the judge's chambers by the party prosecuting the decree or order : (0. O. 36, r. 44.) -^ *o™ of list is given in the schedule to the Chancery Regulations of 17. Application bx Claimant to vary Ceetipicate. A person whose claim is disallowed whoUy or in part may apply to vary the chief clerk's certificate by having his claim inserted therein • or he may go to the judge in person, when, if the decision is adverse he may obtam a separate certificate at his own expense, and then apply to vary it- (Dan. 1102 ; and see Chambers and Appeal.) 18. Interest. (a) Debts. Where a [judgment] or order is made directing an account of the debts Administration Action. 31 of a deceased person, unless otherwise ordered, interest shall he 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 4 per cent, per annum, from the date of the decree or order -. (CO. 42, r. 9.) In an action for the administration of the estate of a person who has died insolvent since the commencement of the Judicature Act, 1875, a creditor on the estate, whose debt bears interest is not entitled to interest up to the day of payment, but only to the date of the judgment for administration : (JSe Swmmers ; Boswell v. Gurney, L. Rep. 13 Ch. ,Div. 136.) A creditor, whose debt does not carry interest, who comes in and establishes the same before the judge in chambers, under a [judgment] or order of the court or of the judge in chambers, shall be entitled to interest upon his debt, at the i^ate of 4 per cent, per annum from-the date of the [judgment] or order out of any assets which may remain after satisfying the costs of the suit, the debts established, and the interest of such debts as by law carry interest : (C. O. 42, r. 10.) (6) Legacies. 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 otherwise ordered, or unless any other time of payment or rate of interest is directed by the will, and in that case according to the will : (0. O. 42, r. 11.) In the administration, in an English court,* of property bequeathed by a testator domiciled in France, the interest payable on legacies given by the will is governed by the law of the country in which the estate is being administered : {Samilton v. Dallas, 38 L. T. Rep. N. S. 215.) Interest under a judgment is calculated up to the date of the certificate : (Dan. 1107.) (c) Subsequent Interest. The order on further consideration generally directs that subsequent interest shall be computed in chambers ; but sometimes it is allowed to be verified by affidavit : (Id.) 19. Notice as to Patmastek-Geneeai's Cheques. Where any [judgment] or order is made for payment by the [Paymaster- General] to creditors, the party whose duty it is to prosecute such [judg- ment] or order shall send to each such creditor, or his solicitor (if any), a notice that the cheques may be received from the Paymaster-General, and such party shall, when required, produce such [judgment] or order, and any other papers necessary to enable such creditors to receive their cheques and get them passed : (Oh. O., May, 1865, r. 12.) XVI. LISTS OF LEGACIES AKD ANNUITIES. Lists of legacies unpaid, and of the annuities and the arrears due are ordinarily required to be supplied to the judge and chief clerk : (Dan. 1110.) Forms of lists are given in Schedules 10, 11, and 12 to the Chancery Regulations of August, 1867. XVII. DEFAULT. It is not necessary to direct an inquiry previous to charging defendant executors as for wiKnl neglect and default : {De Cordova V. De Cordova, L. Rep. 4 App. Cas. 692 ; 41 L. T. Rep. N. S. 43.) If, after the ordinary accounts have been directed, part of the estate cannot be traced, an application to charge the personal representative with 32 Adimnistration Action. it will not be entertained, unless it is proved that he received the estate : (Dan. 1127.) . . ^ Where a plaintiff has' obtained a common administration judgment against a defendant, he must obtain the leave of the court before he can maintain a subsequent action against the same defendant charging him with wilful default in the administration of the same estate : {Lamvag V. Gee, L. Rep. 10 Ch. Div. 715 ; 40 L. T. Rep. N. S. 33 ; 48 L. J. 196, Oh..; 27 W..R. 226.) XVIII. SAiTCTION FOR PROCEEDINGS TO . GET EST ESTATE. Where an administration action is pending the sanction of the court must be obtained before proceedings are instituted to get in the estate. The application is by summons supported by affidavit and by comisel's opinion : (Dan. 263-4.) XIX. SALE. Leave to sell or convert outstanding estate directed to be got in with the direction of the judge, or to accept a composition in respect thereof, must be obtained on summons : (Dan. 1141.) When the trusts of any will .... are being administered, and a sale is ordered of any property vested in the trustees of such will .... upon trust for sale, or with power of sale by such trustees, the conduct of such sale shall be given to such trustees unless the judge shall otherwise direct: (0. LII., March, 1879.) XX. ALLOWING INCOME OF PROPERTY [see Pbopebtt]. XXI. COSTS. 1. HiGHEB OE LOWEB SCALE. Solicitors are .... allowed .... fees on the lower scale .... in causes and matters by creditors, legatees (whether specific, pecuniary, or residuary), devisees (whether in trust or otherwise), heirs-at-law or next of Idn, in which the personal or real or personal and real estate for or against or in respect of which or for an account or administration of which the demand may be made, shall be under the amount or value of 1000?. : (Add. R., August, 1875, O. VI., r. 1.) In other cases they are allowed fees on the higher scale : (Id., r. 2.) When the gross value of the estate administered amounts to lOOOi. at the commencement of the action, the higher scale applies, and though the estate turns out insolvent the same scale applies as if a large residue existed ; but where an estate, originally exceeding lOOOZ., has, before com- mMioement of the action, been reduced by proper payments by the personal representative to less than lOOOi. the lower scale applies : (JBe Beece, L. Rep. 2 Eq. 609; 14 L. T. Rep. N. S. 881; 35 L. J. 794, Ch.; 14 W. R. 1008.) In estimating the value of a mortgaged estate, the equity of redemption cmly must be regarded, and, although its value, as assessed, together with the rest of the estate, amounts to lOOOi., if it turns out on sSe that the proceeds, together with the rest of the estate, amount to less than lOOOZ., the lower scale applies : (Be Samderson, L. Rep. 7 Oh. Div. 176 ; 38 L. T. . Rep. N. S. 879 ; 26 W. R. 309.) 2. DiFFEBEiTT Estates. Where difEerent funds or estates are the subject of distribution or discussion, the costs are generally apportioned jiro ra/td : (Don. 1296.) 3. Oontict's Estate. The costs as between solicitoir and cUent of every action or suit brought Administration Action. 33 against the administrator of a convict's property, and all charges and expenses properly incurred with reference thereto, are to be a first charge npon and paid out of such property, unless the court orders otherwise : (33 & 34 Vict. c. 23, s! 20.) 4. Costs out op the Estate. (a) General Rules. The rule that costs shall be ia the discretion of the court does not deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fund to which he would be entitled according to the rules [formerly] acted upon in Courts of Equity : (O. LV., r. 1.) Grenerally the costs of aJl necessary and proper parties to the proceed- ings are a first charge ; to be paid thereout before claims of persons bene- ficiaUy entitled : (Dan. 1271.) The rule as to personal representatives only applies as between them and their beneficiaries : {Id. 1284.) ' Only the costs of proceedings originally properly directed for the benefit of the estate are ordered to be thus paid : (Id. 1271 ; Morg. & Dav. 114.) Where an administration action is also for other purposes the costs are divided : {Id. 116.) The costs in administration proceedings in the Chancery Division have priority over those of litigation in the Probate Division : (Dan. 1272.) Where there is a sufficient fund and it is necessary to come to the court to establish a demand upon the property of persons deceased, the costs of proceedings must be borne out of the assets, e.g., if an action is com- menced by a creditor for his debt ; by a legatee for his legacy ; or by residuary legatees, or next of Mn, for an account and distribution of an estate : (Dan. 1288; Morg. &Dav. 109.) The circumstance that the defendant has offered to the plaintrfE a fuU ^spection of his account makes no difference : (Id.) (6) Personalty primarily liable. The residuary personal estate is primarily the fund for payment of administration costs : {Jones v. Galess, L. Rep. 10 Ch. Div. 40 ; 39 L. T. Eep. N. S. 287 ; 27 W. R. 108.) Where the particular fund occasioning litigation is not part of the residue, generally the residuary estate bears the costs of administering, and no distinction exists between cases in which the residue is disposed of, and where it is not ; and where there are specific bequests and pecuniary legacies, which exhaust the whole estate so that there is no residue, the costs occasioned by the specific bequests will be thrown upon the general fund out of which the pecuniary legacies are payable : (Dan. 1292.) Where property intended to be disposed of has, in the result, been declared undisposed of, the costs wiU be thrown upon the general estate : {Id. 1293.) Where two suits were instituted to obtain a decision on the construction of a will, one as to the realty, and the other as the personalty, the costs of both were thrown on the personalty : {Pickford v. Brown, 2 K. & J. 426.) (c) Lapse. Where a legacy has lapsed, the costs are payable out of residue : {Trethewy v. Helyar, L. Rep. 4 Ch. Div. 53 ; 46 L. J. 125, Oh. ; Fenton v. Witts, L. Rep. 7 Ch. Div. 33; 87 L. T. Rep. BT. S. 373; 47 L. J. 19, Oh.; 26 W. R. 139 ; Blann v. Bell, L. Rep. 7 Ch. Div. 382 ; 47 L. J. 120, Ch. ; 26 W. R. 165 ; Be Jones, L. Rep. 10 Ch. Div. 40; 39 L. T. Rep. N. S. 287; 27W. R. 108.) Lapsed real estate must bear costs before general estate : {Scott v. Cwm- herlamd, L. Rep. 18 Eq. 578 ; 31 L. T. Rep. N. S. 26; 22 W. E. 840.) D 34 Admimstration Action. Whether the property nndisposed of (whether from lapse or from anj other cause) was given as a specific or pecuniary bequest, or as a share o: the residue, the costs will not fall on the undisposed-of share, but oi all the shares : (Dan. 1293 ; Morg. & Dav. 110.) (d) Particula/r Fund Severed. If the particular fund has been severed from the residue, and the ques^ tion is merely between the persons claiming it, it must bear the costs (Dan. 1294; Morg. & Dav. 112.) (e) Pa/rtial Distribution before Action. Where executors have made a proper distribution pro tanto, and been ready to account to the unpaid residuary legatees, if they commence an administration action, and the account turn out substantidly correct, the plaintiffs must pay the costs : {Billiard v. Fulford, L. Rep. 4 Oh. Div 389 ; 35 L. T. Rep. N. S. 750 ; 46 L. J. 43, Ch. ; 25 W. R. 161.) But where the execiitors have wrongly distributed the residue by over- paying to some residuary legatee, the costs will be thrown on the entire residue, so as to charge the executors with the costs attributable to tht distributed shares : {Id.) Where executors distributed three-fourths properly, but neglected per. sistently to furnish accounts to the persons entitled to the other fourth f oi life, they were made to pay the costs including those of the hearing, bul excepting those of the accounts and inquiries, and the remainder of the costs were thrown on the residuary estate, the proportion in respect of the distributed shares being thrown on the executors personally : {Be BeU, 39 L. T. Rep. N. S. 422.) (/) Difficulty as to Construction. (1) Of wm. If a difficulty arises upon the construction of a will, the costs occasioned by such difficulty must be defrayed out of the assets : (Dan. Oh. Pr. 1289; Singleton v. Tomlinson, L. Rep. 3 App. Oas. 420 ; 38 L. T. Rep. N. S. 653 ; 26 W. R. 722 ; and see jposf, 11.) (2) Of Bequest or Devise. Where any doubt or ambiguity arises under the will as to a bequest oi devise, rendering an application to the court necessary, the costs are to be paid, not out of the property with respect to which the doubt arises, but oni of the general assets not otherwise disposed of : (Dan. 1290.) 6. Attendabtces at Chambebs. A person interested in an administration action attending proceedingE in chambers under the decree, without special leave, may be ordered to pay, in addition to his own costs, the extra costs occasioned by his atten- dance : {8ha/rp v. Imsh, L. Rep. 10 Oh. Div. 468 ; 48 L. J. 231, Oh. ; 2! W. R. 528 ; and see sup. XV., 10.) 6. PeesonaIi Repbesentatives. (a) General Rule. Personal representatives and trustees, whether plaintifEs or defendants, accounting fairly and paying their money into court, are entitled to thei] costs as between solicitor and client, together with any costs, charges, and expenses, properly incurred by them : (Dan. 1272 ; Morg. & Dav. 119.) Where the personal representatives have commenced proceedings, where they might safely have acted without, but not vexatiously, they wffl have their costs out of the estate : (Dan. 1273.) (6) In Action by one Creditor. In suits by a creditor against a personal representative for his own debl only, if he succeeds, no order with regard to the payment of the represen Administration Action. 35 tative's costs is made, but only an order directinff the creditor's costs and claim to be paid out of the estate. Where 5ie proceedings, either by- creditors or by legatees, are for general administration, the costs of the personal representatiTes are always provided for ; and where there is a deficiency of assets to pay the whole of the testator's debts, the costs are the first charge upon the fund arising from the personal estate. But this right may be defeated by collusion, &c. : (Ban. 1285.) (c) Severance. If trustees or personal representatives sever in conunencing or defend- ing proceedings, the^ will be allowed one set of costs only between them, unless there is a special reason justifying the severance : (Dan. 1274.) If an executor refuses td join his co-executor as a plaintiff, in a proper case, and is therefore made a defendant, he will be refused his costs : (M. & D. 120.) (d) When Befus^ or made to pay Costs. The court wiU visit executors, &c., with costs in case of simple non- feasance where it has been productive of mischief to the estate : (Dan. 1280.) An executor denying assets will be liable for costs if the contrary is proved : (Dan. 1280.) An executor misconducting himseU wiU only be made to pay costs so far as the proceedings have been occasioned by his misconduct : (Dan. 1283.) In some cases of mistake or slight neglect, the personal representative's costs will only be disallowed : (Id.) Sometimes the costs are not even disallowed : (Morg. & Dav. 121.) If executors refuse to account, they have to pay personally the costs up to and including the hearing, but not subsequently if they account fairly : (Morg. & Dav. 122 ; Be Bell, 39 L. T. Eep. N. S. 422.) 7. Plaintiff. When a suit has been fairly instituted for the administration of assets, the first payment, after the payment of the costs of the executor who has not disentitled himself to costs, is of the costs incurred by the plaintiff in the suit, even if the estate is insufficient : (Dan. 1285-6 ; Fane v. Fane, L. Rep. 13 Ch. Div. 228 ; 41 L. T. Rep. N. S. 551.) PlaantifE is ordinarily only allowed costs as between party and party, where the funds are sufficient ; if deficient, usually as between solicitor and client : (Seton, 4th ed. 846.) 8. Cebditoe. A creditor commencing proceedings knowing that the estate has been whoDy exhausted, or that there are no assets avaSable for his claim, or who is correctly informed before or after commencement of the proceedings by the executor or creditors having prior claims, will have to pay all the costs; or the costs after information received, or be disallowed all Ms costs, or his costs after such notice : (Dan. 1287.) In actions by puisne incumbrancers or general creditors, persons having prior specific charges, may, if parties, insist on having the action as against them dismissed with costs, or adopt the suit and consent to a sale, and to receive payment of their principal and interest out of the proceeds ; in which case, although the decree is for the payment of all parties, accorcUng to their priorities, the costs of all parties must, in the first instance, come out of the fund : (Daa. 1287.) A creditor who has come in and established his debt in the Judge's Chambers [is] entitled to the costs of so establishing his debt ; and the sum to be allowed for such costs [is] fixed by the Judge, unless he thinks D 2 36 Administration Action. fit to direct the taxation thereof ; and the amount of saeh costs or the sum allowed in respect thereof [is] added to the debt so established : (G. O. 40, r. 24.) A creditor failing -to establish his claim has been made to pay the costs : (Ayck. 515.) The order to pay costs may be had on summons : (Dan. 1109.) The costs of a plaintifB creditor are not added to his debt, but form part of the costs in the action : (Dan. 1108 ; and see ante, XV., 7.) 9. Heie. An heir-at-law made a party for the purpose of establishing a claim against real estate generafly gets his costs whatever the result, if the claim will wholly exhaust the estate, as between solicitor and client ; in other cases, as between party and party : (Dan. 1245 ; Morg. & Dav. 135, 247-8.) Where the heir-at-law is a necessary party, and the court has decided in his favour, although such decision is reversed on appeal, he is ' entitled to Ms costs of supporting the decision in the court below : {Singleton v. Tomlinson, L. Rep. 3 App. Gas. 420; 38 L. T. Rep. N. S. 653; 26W. R. 722.) Where the heir-at-law is made a party for the purpose of proving a will against him he is entitled to his costs : (Dan. 1245.) The costs of the inquiry for heir-at-law have been given to him as- between solicitor and client out of the real estate : {Blcmd v. Daniell, W. N. 1867, p. 169.) 10. Next os Kin and Members of a Glass. Where next of kin, or persons claiming as a class under the will establish their title under an administration judgment, they are generally allowed their costs incurred in chambers, and generally of the proceedings, whether they are made parties, or whether the fund is administ«red, without formally bringing them before the court upon the record. If the residuary estate has ultimately to be divided amongst different classes of persons, the costs of all the claimants are paid out of the general estate before any apportionment is made, even though the effect is to diminish the fund of one class of claimants to an extent materially greater than the amount of costs due to that particular class : (Dan. Oh. Pr. 1291-2.) The costs of ascertaining the members of a class entitled to a residue, or the next of Mn, are part of the general costs of the action : ' (Morg. & Dav. 124.) 11. Legatee. A legatee will be entitled to his costs out the estate, only when he is successful. If his action be dismissed, he will not be entitled to his costs out of the testator's estate, notwithstanding there is an ambiguity in the will, which renders it necessary to apply to the court for its con- struction ; but if the case involves considerable difficulties, occasioned by conflicting decisions and the acts of the testator, the court orders the dismisssQ to be without costs; so also, where the plaintiff has a fair ground for making his claim against the estate of a deceased person : (Dan. Oh. Pr. 1289.) F V If a contingent legacy fails during action, the legatee cannot have his- costs : (Morg. & Dav. 112.) The costs of inquiries for the legatee's benefit come out of the legacy: {Id.) 12. Incttmbeked Shaees. Where a legacy or share is inctimbered, the additional expense is thrown on the legacy or share, and only one set of costs allowed to the party Administration Action — Administration on Summons. 37 entitled and the incmnbrancers : (Dan. 1295 ; Morg. & Dav. 125 ; Seton, 4th ed. 879.) 13. Bankettpt Legatee. One set of costs, only, is allowed between a bankrupt legatee and his trustee : (Dan. 1295.) 14. Settled Shake. One set of costs, only, is allowed between the trustee and his cestui que trust : (Id.) 15. HUSBAUD AND WlFB. One set of costs, only, is allowed between a husband and wife living apart, and improperly severing in their defence : (Dan. 1295.) 16. iNQtriEiES AS TO Pbesons entitled to Residttb. The costs are payable out of residue : (Be Beeve's Prusts, L. Hep. 4 Oh. Div. 841 ; 36 L. T. Rep. N. S. 906 ; 46 L. J.- 412, Oh. ; 25 W. R. 628.) 17. TyioaTGAaBE. If a mortgagee sues as a creditor to administer, his costs are those of a plaintiff in an ordinary administration action, and if he institutes or adopts such proceedings, and the estate proves deficient, the costs of execntors and all parties must be first paid out of the proceeds of sale of the mortgaged property : (Seton, 4th edit., 826.) A mortgagee, whether a party or not, does not postpone his claim by consenting to a sale : (Id. 827.) ADMINISTRATION ON SUMMONS. (Undeb is & 16 Vict. o. 86.) I. "WHO MAY APPLY. 1 As TO Pebsonal Estate. 2. As TO BEAii Estate on Tbitbt fob Sale. n. JTJEISDICTION. m. SUMMONS. 1. FOBM. 2. Pbbpabation. 3. Indoesement. 4. Sealinq. 5. Copt at Jtjdoe's Chambeks. 6. PrLXNa Duplicate. 7. Sebvice. (a) Sta/mped Copies. (6) Closed Times. (c) How effected. IV. APPEARANCE. V. OEDBE. 1. What Oedeb made. 2. DiscBETioir to Eefitse. 3. Special Dibectionb. 4. Effect. VI. ACCOUNTS, INQUIBIBS, AND PEOCEEDINGS AT CHAMBEES. Vn. ^FUETHEE CONSIDBEATION. vrn. COSTS. I. WHO MAT APPLY. 1. As TO Pebsonal Estate. Any person claiming to be a creditor, or a specific pecuniary or residual y 38 Administration on Summons. legatee, or the next of kin, or some or one of the next of kin, of a deceased person, may obtain as of course, without any preliminary proceedings',' a summons requiring the executor or administrator, as the case may be, of such deceased person, to attend before him at ohajnbers, for the purpose of showing cause why an order for the administration of the personal estate of the deceased should not be granted : (15 & 16 Vict. c. 86, s. 45.) 2. As TO Reai Estate on Tetjst foe Sale. Any person claiming to be a creditor of any deceased person, or in- terested under his will [may in like manner], obtain an order for the administration of the real estate of a deceased person, where the whole of such real estate is by devise vested in trustees, who are by the wilt empowered to sell such real estate, and authorised to give receipts foi: the rents and profits thereof, and for the produce of the sale of such real estate : (15 & 16 Vict. c. 86, s. 47.) Not only the person named in the Act, but those claiming the interest of such person, may apply : {Turner v. Bennoldson, L. Rep. 16 Eq. 37 ; 28 L. T. Rep. N. S. 330; 42 L. J. 610, Oh.; 21 "W. R. 558.) An administration suit against the Crown may be instituted by summons, making the solicitor to the Crown, administrator, defendant: (Polim y. Gray, W. N. 1874, p. 3 ; 22 "W. R. 255.) II. JURISDIOTIOlKr. The jurisdiction is exercisable only in simple cases : (Morg. & Chute, 193.) . When difficult questions are likely to arise the judge may decline to make an orderi leaving the parties to their remedy by action : (Ayek. 551.) in. SUMMONS. 1. FOBM. The summons may be in the form in schedule K, No. 2, to the Consoli- dated Orders, with such variations as the circumstances of the case may require : (0. O. 35, r. 2.) 2. Pbepaeation. The summons must be prepared by the parties : (C. 0. 35, r. 5.) 3. Indoesement. Every solicitor of a party suing .... by a solicitor [must] cause to be written or printed upon [the] summons las name or firm, and place of business, and also, if his place of business shall be more than three nules from the [Central Office] another proper place (to be called his address for service) .... not ... . more than three miles from the said office, where .... documents and written communications may be left for him. And where any such solicitor [is] only the agent of any other solicitor, he [must] add to his own name or firm and place of business, the name or firm and place of business of the principal solicitor : (C. O. 3, r. 2.) Every party suing .... in person [must] cause to be written or Ijrinted upon [the summons] his name and place of residence, and also (if his place of residence [is] more than three miles from the [Central Office]), another proper place (to be called his address for service), not more than three miles from the said office, where .... documents .... and written communications may be left for him : (C. O. 3, r. 5.) 4. Sealing. A praecipe must be left when the copy summons is presented for sealing: (Dan. 1051.) [The summons will be] sealed by one of the clerks, at the chambers of Administration on Summons. 39 the judge from whose chambers [it is] issued, with a seal proTided for those chambers : (G. O. 35, r. 5.) 6. Copt at Judge's Chambebs. A copy of the summons must be left at the judge's chambers by the party obtaining such summons : (C. O. 35, r. 5.) As to altering after sealing, see Chambebs. 6. Filing Duplicate. A duplicate or copy of the summons [must], previously to the service thereof, be fQed in [the Central Office] : (15 & 16 Vict. c. 86, s. 46 ; J. A., 1879.) If the summons is filed without the authority of a next friend an application to take it o£E the file or to stay proceedings must be by motion: (Dan. 1051.) 7. Sebvich. (a) Siamped Copies: The copies to be served upon any executor or administrator, and in all cases where service is required, must be stamped with a stamp of the office indicating the filing : (15 & 16 Vict. c. 86, s. 46 ; C. 0. 35, r. 6.) (6) Tvme. The summons must be served seven clear days before the return thereof: (C. O. 36, r. 7.) Where from any cause the summons may not have been served upon any party seven clear days before the return thereof, an indorsement may be made upon the summons, and upon a copy thereof stamped for service, appointing a new time for the parties not before served to attend at the chambers of the judge ; and such indorsements shall be sealed at the judge's chambers ; and the service of the copy so indorsed and sealed shall have the same force and effect as the service of an original summons ; and where any party has been served before such indorsement, the hearing thereof may, upon the return of the summons, be adjourned to the new time so appointed: (Co. 0.35, r. 8.) (c) Sow effected. By analogy to the old practice, service is effected in the same manner as in case of a writ : (Dan. 1054.) Substituted service or service out of the jurisdiction may be ordered : (Jd. Ayck. 552.) A form of affidavit of service is given in schedule I. to the Chancery Begnlations of August, 1857.) rV. APPEARANCE. The parties served [must], before they are heard in chambers, enter appearances in the [Central] Office, and give notice thereof : (C. 0. 35, r. 9.) The appearance is entered in the same manner as to a writ. [See Appeaeance.] V. ORDER. 1. What Obdbk made. Upon proof by affidavit of the due service of [the] summons, or on the appearance in person or by his soKoitor or counsel of [the] executor or administrator, and upon proof by affidavit of such other matters, if any, as [the] judge shall require such judge [may], if in his discretion he thints fit so to do ... . mate the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case may require : (15 & 16 Vict. c. 86, s. 45.) 40 Administration on Summons. The usual admimstration order only will generally be made : (Morg. & Chut. 194; Ayck. 553.) The judge cannot charge the defendant with wilfnl default, or upon an admission of assets : (Id^ 2. DiscBETioN TO Refuse. The judge has full discretionary power to grant or refuse the order for administration : (15 & 16 Tict. c. 86, s. 45.) 3. SPECIAi DiBECTIONS. The judge [has] full discretionary power. ... to give any special direc- tions touching the carriage or execution of the order, and in the case of applications for any such order by two or more different persons or cksses of persons, to grant the same to such one or more of the claimants or of the classes of claimants as he may think fit ; and if the judge [thinks] proper, the carriage of the order may subsequently be given to such party interested, and upon such terms as the judge directs : (15 & 16 Viet. c. 86, s. 46.) 4. Eppect. The order has the force and effect of a decree to the Kke effect made on the hearing of a cause or claim between the same parties : (15 & 16 Vict. c. 86, s. 45.) [See Administkation Action.] where under the order the same relief can be obtained as in am action for administration subsequently commenced, the latter proceedings will be stayed : (Dan. 1076.) VI. ACCOUNTS, INQUIRIES, AND PROCEEDINGS IN CHAMBERS. The accounts and inquiries are taken as in an administration action : (Ayck. 553.) [See Administbation Action.] If a dispute arises before the chief clerk's certificate is made, and argument by counsel is desired, the summons must be adjourned into court : (Ayck. 553.) VII. FURTHER CONSIDERATION. Where [the] cause .... [has] at the original or any subsequent hearing thereof been adjourned for further consideration, such cause may, after the expiration of eight days, and within fourteen days from the filing of the certificate of the chief clerk .... be brought on for further con- sideration by a summons to be taken out by the plaintiff or party having the conduct of the cause, and after the expiration of such fourteen days, by a summons to be taken out by any other party. And such summons is to be in the [ordinary form] (see Chambees) ; and the object of the application may be stated as follows : — " That this cause, the further con- "Bideration whereof was adjourned by the order of the day of " , 18 , may be further considered." This summons is to be served six clear days before the return : (Ch. Beg. Aug. 1857, r. 18.) ^ * A dispute arising on the chief clerk's certificate should be heard on the further consideration : (Ayck. 553.) The further consideration may be adjourned into court : (Id. 654.) Vin. COSTS. An executor may be deprived of his costs for misconduct, without com- mencing an action : {Be Kmg, 34 Beav. 574 ; 12 L. T. Rep. N. S. 818: 13 W. R. 1012.) Administration under Sir George Turner's Act. 41 ADMINISTRATION UNDER SIR GEORGE TURNER'S ACT. 1. POWER TO OEDEB ACCOUNT ON APPLICATION OF EXE- CUTOR OR ADMINISTRATOR, n. WHEN ORDER MADE. m. HOW APPLICATION MADE. IV. EVIDENCE. V. ORDER. VI. PROCEEDINGS STATED IP ADMrNISTBATION ORDER MADE. Vn. PROCEEDINGS IN CHAMBERS. Vm. CREDITOR'S APPEAL PROM DISALLOWANCE OP CLAIM. IX. PAYMENT OF CLAIMS AND PROVISION FOR LIABILITIES. X. PROVISION FOE CONTINGENT LIABILITIES. XI. STATING OTHER PHOCEBDINGS AGAINST EXECUTOR OB ADMmiSTRATOB. 1. AiTEB Oedeb — Until Account taken, 2. Afteb Cektimcate fhiBD — ^Absoldtelt. Xn. EFFECT OF PEOCEEDINGS. I. POWER TO ORDER ACCOUNT ON APPLICATION OF EXECUTOR OR ADMINISTRATOR. The court, upon the application of the executors or administrators of any deceased person [may order to be taken in chambers] an account of the debts and liabilities affecting the personal estate of such deceased person : (13 & 14 Vict. c. 35, s. 19.) The Act does not apply to real estate : {Be Moore, 22 L. T. Rep. O. S. 211 ; 28 L. J. 153, Ch. ; 2 W. R. 85.) No order shall be made pending any proceedings to administer the estate : (18 & 14 Vict. c. 35, s. 19.) II. WHEN ORDER MADE. The order may be made immediately, or at any time after probate or letters of administration shall have been granted : (23 & 24 V ict. c. 38, 8. 14.) III. HOW APPLICATION MADE. The application is to the court by motion or petition of course, or to a judge at chambers, by summons in the form used for originating pro- ceedings in chambers : (23 & 24 Vict. c. 88, s. 14.) When the application is by motion or petition no service is requisite, but the motion or petition must be mentioned to the court, who will judge of the sufficiency of the affidavits : (Be Sarrold, 16 L. T. Rep. O. S. 503,; 20 L. J. 168, Ch.) The order caanbt be obtained at the Order of Course Office : {Be Hood, 23 Beav. 17.) The petition must be regularly set down : (Be Dixon, 6 L. T. Rep. N.S.643.) ^ ^ ^ Every petition or motion paper for a reference, under the 13 & 14 Vict. c. 35, s. 19, shall be marked at or near the top or upper part thereof in the same maimer as [a statement of claim] with the name of the court, division, and judge : (C. O. 6, r. 6.) If the application is by summons, the summons will be prepared, issued, and filed in the same manner as other original summonses. [See Ohambees.] 42 Administration under 8ir George Twmer's Act. It may be made returnable at any time after it is issned : (Dan. Ch. Pr. 1077.) rV. EVIDENCE. The application must be supported by production of the probate or letters of administration, and by an affidavit by one of the executors or administrators that no proceedings are pending to administer the estate : (Dan. Ch. Pr. 1078 ; Ayck. Ch. Pr. 547.) Y. ORDER. {Form.) Instead of the form of order given in the schedule to 13 & 14 Vict. c. 35, the form in Seton (4th edit. 846) is now used : (Dan. Ch. Pr. 1078.)_ The order must be marked in the same manner as the petition or motion paper: (C. O. 6, r. 6; see ante, III.) The order is drawn up by the Registrars, passed, and entered ; and a certified copy is left at chambers : (0. O. 35, r. 15 ; Dan. Ch. Pr. 1078.) [See Account.] After order made, the matter is considered as attached to the court of the judge whose name is thereon marked, and may be transferred : (C. 0. 6, r. 6.) [See Teansfeb.] VI. PROCEEDINGS STATED IF ADMINISTRATION ORDER MADE. In case at any time after the making of [the] order any decree or order for administering the estate of such deceased person [is] made, the court [may] by such decree or order stay or suspend the proceedings under such order of course on such terms and conditions, if any, as to the court shaE seem just : (13 & 14 Vict. c. 35, s. 19.) VII. PROCEEDINGS IN CHAMBERS. 1. Svmvmons to Proceed. A summons to proceed on the order is taken out (0. O. 35, r. 16) ; but is not served : (Dan. Ch. Pr. 1078.) 2. Cla/ims. Advertisements for creditors are issued, and the claims sent in are examined, proved, and adjudicated on as in an action for administration : {Id., Ayck..547.) [See Administeation Action.] The judge, in taking an account of debts and liabilities pursuant to any such order [may], on the application of the executors or administrators, direct that the "particxdars only of any claim or claims which may be brought in pursuant to any such order, shall be certified by his chief clerk without any adjudication thereon : (23 & 24 Vict. c. 38, s. 14.) Vin. CREDITOR'S APPEAL FROM DISALLOWANCE OP CLAIM. Any person who may have come in under any such order, and claimed to be a creditor upon the estate of the deceased person, or to ha,ve any demand upon such estate by reason of any liability, and whose debt or claim may not have been wholly allowed, [may] apply to have such claim allowed either whoUy or partially ; and the executors or administrators, and any creditor of the deceased person who may be authorised by special leave of the court so to do, [may]^ apply to the said court to have any debt or claim allowed, disallowed by the court, either wholly or partially : (13 & 14 Vict. c. 35, 8. 20.) The application must be made by taking the opinion of the judge, within four clear days after the chief clerk's certificate has been signed. Administration under Sir George Turner's Act. 43 or, after it has been filed by siunmons or motion to Tary : (Dan. Ch. Pr. 1079.) [See Appeal.] The court or judge may either dismiss the application or may order the debt or claim to which it relates to be allowed or disallowed, as the case may be, and either whoUy or partially, or may direct further inquiry or further proceedings touohiug such debt or claim, and after such inquiry or proceedings may, upon further application, deal with such debt or claim as seems just ; but no new evidence shall be receiTed upon the hearing of any such application, without special leave : (13 & 14 Vict. c. 35, s. 21i) IX. PAYMENT OP CLAIMS AND PROVISION POR LIABILITIES. In case any debt or any certain liability [has] been allowed as aforesaid and [has] not within fourteen days after [the certificate has become binding] as to such debt or liability, or after the same [has] been allowed by the court [or judge] been paid or provided for by appropriation to the satisfaction of the person who has established such liability, the court [may], by order, to be made in case of any debt remaining due, upon the application by motion or petition of the person to whom the debt remains due, and on notice to the executors or administrators, and in case of any certain liability remaining unprovided for by appropriation, upon the application by motion or petition of the person by whom such liability has been established, or of the executors or administrators, and on notice by the party applying to the other of them, order payment of the debts which may have been allowed and remain unpaid, and' provide for the certain liabilities which may have been allowed and remain unprovided for, in lite manner as the same could or might have been paid or provided for in [an action], or [may direct an account] of the debts and certain liabilities allowed as aforesaid which remain unpaid or unprovided for, and also the usual accounts of the personal estate of the deceased person, with all usual and proper directions ; and every such order [has] the same force and effect and [is] prosecuted and carried on in lite manner as a [judgment] in a creditor's [action] : (13 & 14 Vict. c. 35, s. 22 ; Dan. Ch. Pr. 1080.) X. PROVISION POR CONTINGENT LIABILITIES. In case any contingent liability shall be allowed by the [certificate] or by the court [or judge], the court [may] by order, to be made upon the appli- cation of the executors or administrators, by motion or petition, on notice to the person who may have established such contingent liability, order such sum of money, part of the estate of the deceased person, as to the court shall seem just, to be set apart and appropriated for answering such contingent liability, and give such directions as the said court shall think fit touching the payment of such sum of money into court, and the invest- ment thereof, and the payment, application, or accumulation of the interest or dividends thereof in the meantime and untU the same shall be required to answer such liability, and when such liability shall be ascer- tained or determined give such directions as to the payment of such sums out of court as the court shall deem right ; [but] no order to be made as aforesaid in any maimer binds the assets so appropriated as against the Eersons entitled to the estate of the deceased subject to the contingent ability; and any person interested in such appropriated assets may apply to the court touching the same as he maybe advised : (13 & 14 Vict. c. 35, s. 23.) When the personal estate is exhausted, the court wiU not set aside 44 Administration under Sir George Turner's Act. proceeds of real estate, charged by the testator with his debts and liabili- ties, to meet contingent lial^mties : (Ayck. 549.) XI. STATING OTHER PROCEEDINGS AGAINST EXEOUTOB OR ADMINISTRATOR. 1. Aftbe Obdkb — ^Untii, Account taken. After the order directing the account has been made, any proceedings against such executors or amninistrators, by any person having or claiming to have any demand upon the estate of the deceased, by reason of any debt or liability due from the estate of the deceased, may be stayed until the account has been taken : (23 & 24 Vict. c. 38, s. 14; J. A., 1873, s. 24, sub-s. 5.) [See Stating Peocbedings.] 2. Aptee Ceetificate filed — ^Absolutely. After the filing of [the certificate], upon the application of the executors or administrators of the deceased, any proceedings against them by any person having or claiming to have any demand upon the estate of the deceased by reason of any debt or liability, other than the persons who may have established contingent liabilities under the order, for which no appropriation [has] been made, may be stayed : (13 & 14 Vict. c. 35, s. 24 ; J. A., 1873, s. 24, sub-s. 5.) [See Stating Peoceedings.] XII. EPPEOT OP PROCEEDINGS. In case no debt or liability, or no debt or liability other than a contin- gent liability, [has] been allowed, or in case any debt or liability other than as aforesaid [hasj been allowed, then after the same [has] been paid or provided for by appropriation, all payments made by the executors or administrators, or any of them, on ^count of the estate of the deceased person, and all dispositions of such assets made by them or any of them on account or such estate [are] as against all persons having or claiming to have any demand upon such estate by reason of any debt or liability, other than persons who may have established under the said order any contingent liability for which no such appropriation may have been made, as good and effectual as if the same had been made under [an administration judgment, but not so as] in any manner to affect or pre- judice the rights of any creditor or other person having any demand or claim upon the estate of the deceased against any assets so paid or dis- posed of, or against the persons to whom such payment or disposition may have been made, or against any assets appropriated, and the appropria- tion of which, if made under a [judgment or order] in a suit to which he was not a party, would not have been binding upon him : (13 & 14 Vict. c. 35, s. 25.) After notices for creditors have been published the executor or adminis- trator shall, at the expiration of the time named in the notices or the last of tie notices for sending in such claims, be at liberty to distribute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which such executor or admini- strator has then notice, and shall not be liable for the assets or any part thereof so distributed to any person of whose claim such executor or admmistrator shall not have had notice at the time of distribution of the said assets or a part thereof, as the case may be; but not so as to prejudice the right of any creditor or claimant to follow the assets or any part thereof into the hands of the person or persons who may have received the same respectively : (23 & 24 Vict. c. 38, s. 14 ; 22 & 23 Vict. c. 36, The executor or administrator obtains the same protection as if he Administration under Sir Oeorge Turner's Act — Admissions, i^ had administered under a judgment in an administration action : {Glegg v. Rowland, L. Rep. 3 Eq. 368 ; 16 L. T. Rep. N. S. 385 ; 36 L. J. 137, Oh. ; 15 W. R. 251 ; Sunter v. Toung, L. Rep. 4 Ex. Div. 256 ; 41 L. T. Rep. N. S. 142; 27 W. R. 637.) ADMINISTRATOR. [See Administkation Action ; Parties ; TRrsTEES.j ADMISSIONS. I. IN PLEADING. II. OF DOCtTMENTS. 1. IMPLEADING. [See Pleading.] n. OF DOOUMEBTTS. Either party nfiiy call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the action may be, unless at the hearing or trial the court certify that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing of&cer, a saving of expense : (O. XXXII., r. 2.) The notice is necessary even where the document is not in the posses- sion or under the control of the party giving notice : (Ruiter v. Chapman, 8 M. & W. 388.) A notice to admit documents may be in the Form Ko. 12 in Appendix B. [to the rules of 1875] : (O. XXXH., r. 3.) An affida,vit of the solicitor or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents, and annexed to the affidavit, shall be sufficient evidence of such admissions : (O. XXXII.) The mere fact that documents are admitted in admissions signed by the soKcitor will not make them evidence unless put in. at the trial, and every document put in must be marked by the regfistrar : ( Watson v. Bodwell, L. Rep. 11 Oh. Div. 150 ; 48 L. J. 209, Oh.) AMENDMENT. Non-compliance with any of [the] rules shall not render the proceedings in any aotion void unless the court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court or judge shall think fit : (O. LIX., r. 1.) The court or a judge may at any time and on such terms as to costs or otherwise as to the court or judge may seem just, amend any defect or error in any proceedings ; and all such amendments may be made as may be necessary for the purpose of determining the real question or issue 46 Appeal. raised by or depending on the proceedings : (0. LIX., r. 2, April, 1880. [See Appeal ; Pabties ; Pleading ; Whit op SirMMONS.] ANSWER. [See DiscovEET.] APPEAL. I. PEOM CHIEF CLERK TO JUDGE. 1. Bei'okb Ceetificate made. 2. AiTEE Certificate made, and bepoee SiaNATUBE bt JuDaE, (a) Judge's OpiwUm taken, on Summons. (6) Time. (1) Ordinary Certificate. (2) Certificate to be acted ou by Paymaster-General. (3) Certificate on passing Beceiver's Accounts. (4) Certificate of Computation of Interest, or Appointment of Fund, (c) Hearing. 3. Afteb Cbetificate signed Br JtrnoB. • (a) How Application made. (b) Time. (1) Ordinary Certificate. (2) Certificate to be acted on by Paymaster-General. (3) Certificate on Passing Eeeeiver's Accounts. (4) General Bules. (c) Heammg. (d) Evidence. 4. Afteb Ceetificate has become binding. 5. In Case op Oedees. II. FEOM DISTBICr EEGISTEAE. III. FEOM EEFEEEE. 1. Eefeeence foe Ebpoet. 2. Eefeeence foe Teial. IV. FEOM TAXING OFFICER TO JUDGE. 1. In what Cases. 2. How BEOUGHT. 3. Evidence. 4. Effect of Oedee — Eepusal. V. FEOM JUDGE AT CHAMBEES TO JUDGE IN COUET. 1. How BEOUGHT. 2. Time. (a) In Ordinary Oases. (6) In Compamy Cases. VI FEOM CHANCEEY DIVISION TO THE COUET OF APPEAL. 1. CDNSriTTTTION AND JXTEISDICTION OF CoUET OF APPEAL.' (i) Generally (d) Appealable Judgments am.d Orders, (c) Non-appealable Judgments and Orders. ;i) Judgments of Divisional Courts of Appeal. (2) Criminal Matters. (3) Decisions given or joined in by Member of the Appeal Court. (4) Consent Orders (5) Orders as to Costs. (6) Discretionary Orders. (1) Direct from Judge in Chambers Appeal. 47 (8) Interpleader. (9) Judgment in Absence below. (10) Decisions formerly final. 2. iNdDKNTAIi POWEBS. 3. INCIDENTAI DiBEOTIONS. 4. How Appeal brought. (a) From Refasal of Ex parte Application. (b) In other Cases. (1) Notice of Appeal. (2) Amendment of Notice. (3) Service. 5. Time fob AppbaijIN<}. (a) From Interlocutory Order. (b) From Winding-v/p, Bankruptcy, or other Matter not an Action. (c) From Final Orders and Judgments. (d) How calculated. (e) Special LeaA)e^nlarging Time. 6. Setting Down Appeai. 7. Abandoned Appeal. 8. Cboss Appeal. (a) Notice by Respondent. (b) Fffect of Respondent's Omission to give Notice. 9. Hbabino. 10. bvidenoe. (o) How brought before Oomrt. (6) Printvng. (c) Further Evidence. (1) How taken. (2) "Wiere special leave required. 11. JtrDOMENT ON APPEAL. 12. Ebheabing. 13. Execution. 14. Stating Peocebdings. 15. iNCXDENTAIi APPLICATIONS. 16. Costs. (a) Effect of Non-pa/yment Below. (b) Shorthand Notes [see post, c] (c) Of Appeal. (d) Deposit or Security for Oasts. (1) When ordered. (2) Demand for. (3) Application for. (4) How Security given. (5) Default. (6) Increasing Deposit. Vn. FEOM THE COtfET OP APPEAL TO THE HOUSE OF LOEDS. 1. Whebe Appeal Lies. 2. Pabties. (o) WTm moAj appeal. (b) Pa/upers. (c) Declining to join as Appellants. (d) Non-joinder. (e) Chamge of Parties. 3. Time toe Appealing. 4. Law Oiticbb's Fiat. 5. Notice op Intention to Appeal. 6. Petition op Appeal. (a) To be Method of Appealing. (b) Form. Appeal. (c) FrvniAng. (d) CovmseVs Signatv/re. (e) Oertificate of Serving Notice. (/) Lodgment. (g) PreeeniaUon. (h) Amendment. 7. Obdeb fob Seevice. (a) When Qranted. (b) How Served. 8. Secueitt foe Costs. (a) Becognisance for 5001. (6) Bond for, or payment of, 200 J. (c) Certificate of Sufficiency of Substitute wnd Sureties. ((J) Objecting to Substitute. (e) ExeciMon amd Return of Bond and Recognisance. 9. AfFEAEANCE. 10. Appendix of Doc0MENTs. (a) PreparaUon of Appellcmt's Appendix. (b) DeKuery of Printed Copies. (c) Pr^a/raUoii of Respondent's Appendix. 11. Pbintbd Cases. (a) How printed. (b) To be signed by Oownsel. (c) Joint Case. (d) Lodgment. (1) Number of Copies. (2) Time. (3) Default. (4) Bound Copies. (e) Mastendi/ng Time for Lodgment. (/) Amendment. (g)- Svpplemental Cases. 12. Additionai. Cases. 13. PEELMmfAET OBJECTIONS. 14. Settino Down. 15. Heaeino. 16. Evidence. 17. EEKEAEINa. 18. Judgment. (a) BeHuery. {b) Application as to Costs (c) Draft Judgment. (d) Fair Copy. (e) JEniry in Jowmcd. (/) Printed Copies, (g) Finality. (h) Ainendment after Fntry. (i) Making Judgment am order of the High Court. 19. Remitting Cause. 20. Stating Peocbedings Below. 21. Oboss Appxials. 22. Consolidation. 23. Appeal Committee. 24. Incidental Applications. 25. Costs. (a) Of Cause. (6) On Disrrnssal for Non Pros. (c) On Non-a^ppeara/nce of Re^aondent. (d) When Cause Remitted. (e) Ultimate Costs of Appendices. Appeal. 49 (/) Taxation. (1) On Applidation o£ Party. (2) When Cause Bemitted. (3) On Bequisition of Master of Bolls, &c. 26. Application op 2001. Deposit. (a) When Appeal affirmed. (b) When Appeal reversed. (c) When Appeal disrtdssed for Non Pros. 27. Payment or Costs out of Becoonisance ob Bono. I. FROM CHIEF CLERK TO JUDGE. 1. Befobe Cektificate made. It is the right of every person to have his case heard before the judge in person, and the invariable practice to give any party engaged in pro- ceedings in chambers the opportunity of such a hearing direcfly : (Morg. & Chute, 121 ; Dan. 1045.) A witness may demand to have his examination conducted before the judge in person : (Be London and Covmty Assurance Commany, 5 W. R. 794.) The matter is brought from the chief clerk to the judge by simple adjournment : (Id.) 2. After Cbbtipicate made abtd befoeb Signatukb by Judge. (a) Judge's Opinion taken on Summons. Any party may, after the proceedings before the chief clerk have been concluded, and before the certificate or report has been signed and adopted, take the opinion of the judge upon the result of the T^ole pro- ceeding when it is brought by the chief clerk to a conclusion ; (15 & 16 Vict. c. 80, s. 33.) The application is by summons : (C. O. 35, rr. 50, 53 ; Morg. & Chute, 129.) (6) Time. (1) Ordinary Certificate. The time within which any party is to be at liberty to take the opinion of the judge upon any proceeding which has been concluded, but as to which the certificate of the chief clerk has not been signed and adopted by the judge, is four clear days after the certificate has been signed by the chief clerk : (C. O. 35, r. 49.) Sundays and other days on which the offices are closed, except Monday and Tuesday in Easter week, are not reckoned in the clear days : (C. O. 37, r. 11.) (2) Certificate to be Acted on by Paymaster-General. Any party desiring to take the opinion of the judge [on any certificate to be acted upon by the Paymaster- General without further order], must obtain a summons for that purpose before twelve o'clock on [the day after the certificate has been signed by the chief clerk] : (C. O. 35, r. 53.) (3) Certificate on Passing Receiver's Accounts. The summons must be issued immediately after the chief clerk has- signed the certificate : (Dan. 1220.) (4) Certificate of Computation of Interest or Apportionment of Fund. When directed to be acted on without the judge's signature, the sum- mons should be issued immediately after the chief clerk's certificate : {Id., see C. O. 35, r. 45.) (c) Searing. The summons is heard by the judge iu person, generally in chambers : (Dan. 1220.) It may be adjourned into court : 60 Appeal. It may be treated as an application to vary, and brought on for argn- ment at the hearing on further consideration : {Id.) No formal order is drawn np : {Id.) 3. Ai'TBB Ceetificatb Signed by Judge. (a) Sow Application made. [The application is] either at chambers or in open court, according to the nature of the case, and by summons or motion : (16 & 16 Viet. e. 80, s. 34.} It is usually by summons : (Dan. 1224.) (6) Time. (1) Ordinary Certificate. The time within which an application may be made, by summons or motion .... [is] eight clear days after the filing of [the] certificate: (0. O. 35, r. 52.) Days on which the offices are closed are reckoned in computing the time : (0. O. 37, r. 11.) But if the time expires on a close day, the application may be made on the next open day : (IS., r. 12.) (2) Certificate to be Acted on by Paymaster-General. The time for applying to discharge or vary [any] certificate [to be acted upon by the Paymaster-General without any further order] when signed and adopted by the judge [is] two clear days after the filing thereof: (0. O. 35, r. 53.) Sundays and other close days, except Monday and Tuesday in Easter week, are not reckoned in the computation of time : (C. O. 37, r. 11.) (3) Certificate on Passing Receiver's Accounts. The application should be made as soon as the judge has signed the certificate : (Dan. 1223.) (4) General Bule. It is sufficient if the summons is obtained within, though not returnable till after, the time : (Morg. & Chute, 130 ; Dan. 1223.) (c) Sea/ring. If the application is by summons, and to be argued by coimsel, it is generally adjourned tUl, and is heard with, the cause on further considera- tion : (Dan. 1224.) If by motion, and the further consideration of the cause is about to come on, it should be made on the hearing on further consideration, unless there is a special reason to the contrary : {Id.) A review of the certificate may be directed : (Dan. 1226.) Where an application to take the judge's opinion (see sitp. 2) has been disposed of, the same question cannot be argued again, but an order to the same effect wiU at once be made to enable the parties to appeal : (Dan. l^Jo.) {d) Evidemee. Affidavits not used before the chief clerk cannot be used on applicstion to vary his certificate : (Morg. & Chute, 130.) 4. After Ceetipicate has become binding. When any certificate or report of the chief clerk has been signed or adopted by the judge [it is] filed and [is] thenceforth binding on all the parties to the proceedings unless discharged or varied : (15 & 16 Vict, c. 80, s. 34.) If no application to discharge or vary has been made within the time, the certificate will not be opened except by special leave of the court, and Afpeal. 51 then only in a strong case, generally of fraud, surprise, or mistake : ' (Dan. 1223.) 6. In Case of Orders. i ' ! Prior to the order being made, each party may demand a hearing before the judge in person : (see snp. 1.) ^ If an order has been made by the chief clerk, without any objection being raised by the parties, as he is merely the deputy of the judge, it is on order of the judge himself, and an appeal from it to the judge in court must be made within the same time as an appeal from an order made by the judge himself in chambers : (see post, V.) II. FROM DISTRICT REGISTRAR. Any person affected by any order or decision of a district registrar may appesd to a judge. Such appeal may be made, notwithstanding that the order or decision was in respect of a proceeding or matter as to which the district registrar had jurisdiction only by consent : (O. XXXV., r. 7.) Every .... appeal to a judge from a district registrar in any action in the Chancery Division shall be to the judge to whom the action is assigned : {Id., r. 10.) Such appeal shall be by summons within four days after the decision complained of, or such fiirther time as may be allowed by a judge or the registrar : (O. XXXV., r. 7.) The summons must be made returnable within four days {Bell v. North Staffordshire Railway Gorrvpany, L. Rep. 4 Q. B. Div. 205) ; but the court may enlarge the time, even after the lapse of the four days : {BwrTce v. Booney, L. Rep. 4 C. P. Div. 226 ; Gibbons v. London JEHnan- cial Association, L. Rep. 4 C. P. Div. 263.) An appeal from a district registrar shall be no stay of proceedings unless 80 ordered by a judge or the registrar : (O. XXXV., r. 8.) III. FROM REFEREE. 1. Reference for Report. In the case of a reference for inquiry or report under the Judicature Act, 1873, s. 56, the report .... may be adopted wholly or partially by the court : (J. A., 1873, s. 56.) And the court may differ from the referee as to any finding which is an inference from the facts that the referee hap reported {per Brett, L.J., Longman v. East; Pontifex v. Severn; Mellin v. Monico, L. Rep. 3 C. P. Div. 155 ; 38 L. T. Rep.. N. S. 8 ; 47 L. J. 211, C. P. ; 26 W. R. 183.) The court shall have power to require any ezplauation or reason from the referee, and to remit the .... matter, or any part thereof, for .... further consideration to the same or any other referee : (O. XXXVI., r. 34, March, 1879.) The application for the opinion of the court on the report is by summons as in the case of a chief clerk's certificate: {Wood v. Ba/rnioott, W. N. 1878, p. 36, sup. I. la.) The court may decide the question referred to any referee on the evidence taken before him either with or without additional evidence as the court may direct : (O. XXXVI., r. 34.) 2. Reference for Trial. In case of a reference for trial, under the Judicature Act, 1873, s. 57, whether with or without consent, the appeal is of the same nature as the appeal from the finding of a jury, or of a judge without a jury: (per Brett, L.J.. Longman v. Sast, &c., swp.) The court has power to set aside the report of any referee on any question of fact on any trial before him : (J. A., 1873, s. 58.) E 2 52 Appeal. ..\- . . The court [has also] power to ... . remit the cause or matter, or aa| part thereof, for re-trial .... to the same or any other referee : (0. XXXVI., r. 34, March, 1879.) Tie application should be bymotion, and may be made by any party affected : {Wood v. Barnieott, W. N., 1878, p. 25.) The court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence as the court may direct : (O. XXXVL, r. 34, March, 1879.) rv. FROM TAXING OFFICEB TO JUDGE. 1. In what Cases. Any party who may be dissatisflefl with the certificate or allocatur of the taxing ofB.cer, as to any item or part of an item which may have been objected to [in writing before the taxing officer] may apply to a judge at chambers for an order to review the taxation as to the same item or part of an item, and the judge may thereupon make such order as to the judge may seem just ; but me certificate or allocatur of the taxing officer shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid : (Add. rr. Aug. 1875, Sp. All. r. 32.) [See Costs.] It is the practice not to interfere where the matter complained of is in the taxing officer's discretion, and he has exercised it, unless some serious mistake has been made : {Twrnbull v. Janson, L. Hep. 3 C. P. Div. 264; 47 L. J. 384, 0. P.) The court wiH not interfere with the taxation of counsel's fees by sucJi officer, unless there is ground for thinldng that he has not exercised a reasonable and fair discretion: {Sargreaves v. 8coU, L. Bep. 4 C. R Div. 21 ; 40 L. T. Rep. N. S. 35 ; 27 W. B. 823.) Generally a judge will review the taxation only when it involves some principle, not where the question is one of mere qucmtum : (Ayck. 430 ; Morg. & Chute, 641.^ AUowances by the taxing officer in respect of fees to conveyancing counsel or other scientific persons whose assistance is obtained by tfe court are subject to appeal to the judge, whose decision is final : (15 & 16 Yict. c. 80, s. 43.) 2. How BEOTTGHT. The application is by summons : (O. LIV., r. 1.) 3. Etidbnce. Such application shall be heard and determined by the judge upon the evidence which shall have been brought in before the taxing officer, and no further evidence shall be received upon the hearing thereof, unless thfr judge shall otherwise direct : (Add. rr., Aug., 1875, Sp. All. r. 33.) 4. Effect op Oedee — REirrsAii. An appeal lies from the judge to the Court of Appeal : (Ayck. 430 ; 8e» post.YI.) V. PROM JUDGE AT CHAMBERS TO JUDGE EST COURT. 1. How BEOTTGHT. An application to a judge in court to discharge an order made by him at chambers is made by motion : {Dickson v. Hwrrison, L. Bep. 9 Oh.-' Div. 243 ; 38 L. T. Bep. N. S. 95 ; 47 L. J. 761, Oh. ; 26 W. B. 730.) 2. Time. (a) In Ordinary Cases. The appeal must in ordinary cases be brought within twenty-one days : {Diekson v. Harrison, svp.) Appeal. 53 (6) In Company Cases. The appeal in cases under the 12th section of the Companies Act, 1862, must be brought within three weeks : {Diolcson's ease, L. Rep. 12 ,0)i. Div. 298 ; 41 L. T. Rep. N. S. 184.) VI. FROM THE OHANCERT DITISION TO THE COURT OP APPEAL. 1. Constitution and Jurisdiction of Cotjet of Appeai. (a) Generally. [One of the permanent divisions of the Supreme Court] under the name of " Her Majesty's Court of Appeal," shall have and exercise appellate jurisdiction, with such original jurisdiction as. . . . mentioned [in the Judi- cature Act, 1873] as may be iucident to the determiaation of any appeal ; (J. A. 1873, s. 4.) The Court of Appeal shall be a Superior Court of Record, and there shall be transferred to and vested ia such court all jurisdiction and powers of the courts following ; (that is to say,) (1.) All jurisdiction and powers of the Lord Chancellor and of the Court of Appeal in Chancery [including the Lord Chancellor as a Judge of Rehearing or Appeal: (J. A. 1873, s. 100.)] in the exercise of his and its appellate jurisdiction, and of the same court as a Court of Appeal in Bankruptcy:' (2.) All jurisdiction and powers of the Court of Appeal in Chancery of the county palatiae of Lancaster, and all jurisdiction and powers of the Chancellor of the duchy and county palatine of Lancaster when sitting alone or apart from the Lords Justices of Appeal in Chancery as a judge of rehearing or appeal from the decrees or orders of the Court of Chancery of the county palatine of Lancaster : (3.) All jurisdiction and powers of the Court of the Lord Warden of the Stannaries, assisted by his assessors, including all juris- diction and powers of the said Lord Warden when sitting in his capacity of judge : (4.) All jurisdiction and powers of the Court of Exchequer Chamber : (5.) All jurisdiction vested in or capable of being exercised by Her Majesty in Council, or the Judicial Committee of Her Majesty's Privy Council, upon appeal from any judgment or order of the High Court of Admiralty, or from any order in lunacy made by the Lord Chancellor, or any other person having jurisdiction in lunacy : (J. A., 1873, s. 18.) (6) Appealable Judgments and Orders. The . . . Court of Appeal shall have jurisdiction and power to hear and determine appeals fromanyjudgment or order,save as [in the Judicature Act, 1873] mentioned, of Her Majesty's High Court of Justice, or of any judges or judge thereof, subject to the provisions of [the Act, and the] Rules and Orders of Court for regulating the terms and conditions on which such appeals shall be allowed : (J. A., 1873, s. 19.) An appeal lies from the judgment of the High Court on a special case ptated By an umpire under the L. C. 0. A. 1845 : {Bidder v. The North Staffordshire Railway Company, L. Rep. 4 Q. B. Div. 412 ; 40 L. T. Eep. N. S. 801 ; 48 L. J. 248, Q. B. ; 27 W. R. 540). An appeal lies from a judgment of a divisional court refusing to order a County Court judge to settle and sign a case for the opinion of a Superior Court : {Clarke v. Boche, 36 L. T. Rep. N. S. 727.) Where an action is tried before a judge without a jury, and the judge decides upon questions of fact, and thereupon gives judgment, the proper 54 Appeal. mode of reviewing his decision, either in law or fact, is by appeal, and not by mption for a new trial : {Potter v. Cotton, L. Rep. 5 Ex. Div. 137 ; 41 L. T. Rep. N". S. 460 ; 28 W. R. 160 ; 49 L. J. 158,"Ex.) j (c) Non-appealahle Judgments and Orders. J (1) Judgments of Divisional Courts of Appeal. The determination of .... aU appeals from a County Court, or from aujr other -inferior court .... which may be heard and determined by divisional courts of the said High Court of Justice, shall, be final unless special leave to appeal from the same to the Court pf Appeal shall be given by the Divisional Court by which any such appeal from an inferior court shall have been heard : (J. A., 1873, s. 45 ; see Part II.) (2) Criminal Matters. The determination of any .... question .... of law arising in criminal trials, .... bythejudgesof the High Court [under 11 & 12 Viet, c. 78, or amy amending Act][ shall be find, and without appeal; and no appeal shall lie from any judgment of the said High Court m any criminal cause or matter, save for some error of law apparent upon the record, as to which no question shall have been reserved for the con- sideration of the said judges under the said, Act of the eleventh and twelfth years of Her Majesty's reign : (J. A., 1873, s. 47 ; see Paet H.) (3) Decision given or joined in by Member of the Appeal Court. No judge of the said Court of Appeal shall sit as a judge on the hearing of an appeal from any judgment or order made by hiinseB, or made by any divisional court of the Sigh Court of which he was and is a member : (J. A. 1875, s. 4.) (4) Consent Orders. No order made by the High Court of Justice or amy judge thereof, by the consent of parties, .... shall be subject to any appeal, except by leave of the court or judge making the order : (J. A., 1873, s. 49.) An undertaiing by counsel not to appeal against am order, if not inserted therein, does not bar the client's rigtt to appeal : {Be. Hull and Cownty Bank, L. Rep. 13 Ch. Div. 261 ; 41 L. T. Rep. N. S. 537 ; 28 W. R. 125.) There is no appeal from an order of d judge made on the trial by con- sent of am interpleader matter : {JEdd v. Winser, W. N . 1878, p. 88.) Wben a judge at chambers directed an interpleader issue to be tried in (xlamorganshire, and by consent it was heard and disposed of by a judge at chambers, it was held that there was no jurisdiction to hear tte appeal {Buse v. Bosser, 28 W. R. 87.) (5) Order as to Costs. No order made by the High Court of Justice or amy judge thereof as to costs only, which by law are left to the discretion of the court shail be subject to any appeal, except by leave of the court or judge makmg the order : (J. A., 1873, s. 49.) An appeal cannot generaUy be brought for costs alone: (Taylor v. 9^Z'r ?'^^-',^n^- oF^^?? 'J^ ^00^'^ Trust, L. Rep. 6 Ch.Div. 281 ; 46 L. J. 817, Oh. ; 25 W. R. 779.) The case of a trustee deprived of costs for impropriety of conduct is no exception to the rule • (Id) t\Z^L T^'T^^^^"'^ of law and principle is involved, am appeal Ues, l! R? °Sh%hr IslV '^^ ^^ ^""^ Steamship VoTn^awg;- Am order is not less an order as to costs alone, because it directs how the costs are to be paid, whether out of a fund, by an individual, by a SS?*"!! T° Vd"" ^^^S^^^^ mamner: (Be Ohermed,!,. Rep. 8 Oh Div. 492 ; 38 L. T. Rep. K. S. 494 ; 47 L. J. 583, Ch. ; 26 W. R 595 ) Appeal. 55 Charges and expenses of trustees are not costs at all, or not costs in tbe discretion of the court : {Id.) When the costs are not in the discretion of the court, an order made as to them maybe appealed: {Witt t. Corcoran, L. Bep. 2 Oh. Div. 69; 45 L. J. 603, Oh. ; and see Marcus v. General Steam Navigation Conwany, W. N. 1876, p. 157 ; Ashworth v. Outram, L. Hep. 5 Oh. Div. 943.) When a judge of the Chancery Division dismisses an action without costs, the Court of Appeal cannot vary the order by dismissing the action ■with costs : {Sarris v. Aaron, L. Rep. 4 Ch. Div.. 749 ; 46 L. J. 488, Oh.) When the appeal is on a matter wholly collateral, and the rest merely for costs, the Court of Appeal has no power to vary the order as to costs : {Graham v. Gamvpbell, L. Bep. 7 Ch. Div. 490 ; 38 L. T. Bep. N. S. 195 ; 47 L. J. 593, Ch.) The court will not open a decision which it otherwise affirms for the mere purpose of making a different order as to costs : {Re New Gas Company, 25 W. B. 643.) (6) Discretionary Orders. The court will not as a rule, on a question which depends on the discre- tion of a judge below, interfere with such discretion : {Golding v. Wharton Saltworks Compam,y, L. Bep. 1 Q. B. Div. 374.) But when the judge below has given his reasons, and they are either based on facts which turn out to be incorrect, or are manifestly insuffi- cient, the Court of Appeal will interfere : {Sturla v. Frecchia, W. ST. 1877, p. 188.) The following matters are discretionary : Prima fa^ie the words " it shall be lawful " import a discretion {Beg. v. Bishop of Oxford, L. Bep. 4 Q. B. Div. 553; 41 L. T. Bep. N. S. 122; 48 L. J. 609, Q. B. ; W. N. 1880, p. 61) ; Striking out pleadings as embarrassing {Goldmigf. Wha/rton SaltworTcs Company {sup.) ; but an appeal has been allowed {Davey v. Garrett, L. Bep. 7 Oh. Div. 473; 38 L. T. Bep. N. S. 77 ; 47 L. J. 218, Ch. ; 26 W. B. 110) ; Ordering points of law to be decided before statement of claim, under Order XXXIV., r. 2 {Metropolitan Board of Works v. New Mver Company, L. Bep. 2 Q. B. Div. 67) ; Amount of security for costs to be given {Sturla v. Frecohia, sw.) ; Committal for contempt {Ashworth v. Outram, L. Bep. 5 Oh. Div. 943); Leave to amend {Byrd v. Nunn, L. Bep. 7 Ch. Div. 284 ; 38 L. T. Bep. N. S. 585; 47 L. J. 1, Ch. ; 26 W. B. 101) ; though an appeal has been aUowed {Tildesley v. Ha/rper, L. Bep. 10 Oh. Div. 393 ; 39 L. T. Bep. 552) ; Excluding counter-claim. An appeal will only be aUowed in a very strong case {Huggons v. Tweed, L. Bep. 10 Oh. Div. 359) ; Manner in which action shall be tried. An appeal wiU only be allowed in a very strong case {Buston v. Tohin, L. Bep. 10 Ch. Div. 558 ; 40L.T.Bep.N.S. HI); . . Order for persons to be summoned for examination to give information concerning the trade dealings, estate, or effects of a company; unless in an extreme case {Be Gold Com^amy, L. Bep. 12 Ch. Div. 77) ; A person so summoned to be examined has no locus s^aiwK to appeal against the order directing him to attend for examination {Id.). (7) Direct from Judge in Chambers. No appeal shall lie from any order [made by a judge of the High Court 56 Appeal. in- chambers] to set aside or discharge which uo motion, [on notice, to the judge himself sitting in court] has been made, unless by special leave of the judge by whom such order was made, or of the Court of Appeal : (J. A., 1873, s. 49.) Leave is given by certificate of the judge below that he does not wish to hear further argument : {Be Mwrsh, W. N. 1877, p. 205.) Where an appeal from chambers only lies to the judge who made the order there, and the case has been fully argued before him there, there is a direct aippeal to the Court of Appeal, without leave : (per HaU, V.O., Mwrr V. Coohe, W. N". 1876, p. 193 j 24 "W. R. 756.) There is nothing to prevent the Court of Appeal' from hearing an appeal from an order made by a judge of the Chancery Division in chambers upon any terms it may think fit : {Be Blsom, L. Bep. 6 Ch. Div. 846.) It may dispense with such judge's certificate, if the appellant satisfies the Court of Appeal 1. That the judge did not wish to hear further argument ; or, 2. That the judge declines to give a certificate : {Id.) In the latter case application must be made to the Court of Appeal to set down the appeal without certificate : {Id.) When the appeal had been set down it was heard without the certificate of the judge below as to no further argument being desired : {Be Marsh, W. N. 1877, p. 205.) A direct appeal from chambers has been allowed where amendments have been made entailing expense, and security for costs has been refused: {Northampton Com Company v. Midland Waggon Convpany, L. Bep. 7 Ch. Div. 500; 38 L. T.Eep. N. S. 82; 26W. B. 458.) (8) Interpleader. In interpleader no appeal will lie to the Court of Appeal, either from a decision of the Court, or from a judge in chambers, who has dealt with the case summarily : (O. I., r. 2 ; Dodds v. Shepherd, L. Bep. 1 Ex. Div. 75 ; 45 L. J. Ex. 437 ; Buse v. Boper, 41 L. T. Bep. N. S. 457.) But an appeal does lie from a judgment on an interpleader issue : {Witt V. Farleer, 36 L. T. Bep. N". S. 538 ; 46 L. J. 450, Q. B. ; 25 W. E. 518.) (9) Judgment in Absence Below. If a party appealing from the decision of a judge at chambers does not appear in the High Court to support the motion, and judgment is there- upon pronounced against him in his absence, he cannot afterwards appeal to the Court of Appeal against the judgment of the High Court ; the Court of Appeal has no jurisdiction to afford him relief: {Walker v. Bvdden, L. Bep. 5 Q. B. Div. 267.) (10) Decisions formerly Final. When by Act of Parliament it is provided that the decision of any conrt or judge, the jurisdiction of which court or judge is transferred to the High Court of Justice, is to be final, an appeal shall not lie in any such case from the decision of the High Court of Justice, or of any judge thereof to Her Majesty's Court of Appeal : (App. Jur. A., 1876, a. 20.) There is no appeal from the decision of a divisional court on a special case stated by an arbitrator in a reference made under the former practice, and providing that no writ of error shall lie : {Jones v. Victoria Graving Docks Compam/y, L. Bep. 2 Q. B. Div. 314.) 2. Incidentai Powebs. For all the purposes of and incidental to the hearing and determination of any appeal within its jurisdiction, and the amendment, execution, and enforcement of any jndgment or order made on any such appeal, and for Appeal. 57 the purpose of eyery other authority expressly given to the Court of Appeal by [the Judicature Act, 1873] the .... Court of Appeal shall have all the power, authority, and jurisdiction by [the] Act vested in the High Court of Justice : (J. A., 1873, s. 19, and see post, 13, 15.) ' 3. Incidental Directions. In any cause or matter pending before the Court of Appeal, any direc- iion incidental thereto, not involving the decision of the appeal, may be given by a single judge of the Court of Appeal : (J. A., 1873, s. 52.) A single judge of the Court of Appeal may at any time during vacation make any interim order to prevent prejudice to the claims of any parties pending an appeal as he may think fit ; but every such order made by a single judge may be discharged or varied by the. Court of Appeal or a . divisional court thereof : (Id.) 4. How Appeai, beought. (a) From Refusal of Mx parte Application. Where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within four days from the date of such refusal, or withia such enlarged time as a judge of the court below or of the Appeal Court may aUow : (O. LVin., r. 10.) The time may be enlarged : {Id. r. 18.) (6) In other cases. (1) Notice of Appeal. All appeals to the Court of Appeal .... shall be brought by notice of motion in a summary way, and no petition, case, or other formal proceeding other than such notice of motion shall be necessary : (O. LVIII., r. 2.) The notice, not the entry, of appeal is now the material step : (Ex parte Saffery, L. Rep. 5 Ch. Div. 366.) Notice of appeal from any judgment, whether final or interlocutory, shall be a fourteen days' notice, and notice of appeal from any interlocutory order shall be a four days' notice : (O. LVHI., r. 4.) A winding-up order is final within this rule : (Be- Stockton Iron Furnace, L. Rep. 10 Ch. Div. 335.) The appellant may by the notice of motion appeal from the whole or any part of any judgment or order, and the notice of motion shall state whether the whole or part only of such judgment or order is complained of, and in the latter case shall specify such part : (O. LVIII., r. 2.) As to the form of notice of appeal, see Little's case (L. Rep. 8 Ch. Div. 806). Where an appellant gave notice of appeal against the whole of an order, it was held that the order might be set right in a particular part, though such part was not specified in the notice : {Duchess of Westminster Silver Lead Ore Company, L. Rep. 10 Ch. Div. 307 ; 40 L. T. Rep. N. S. 300 ; 27 W. R. 539.) If the first notice of appeal is irregular, or not entered at all, or only after time, a second notice may be given if the time for appealing has not expired, and it is uimecessary to move that the former entry may be vacated : {Norton v. London and North- Western Railway Company, L. Rep. 11 Ch. Div. 118; 47 L. J. 859, Ch. ; 40 L. T. Rep. N. S. 697 ; 27 W. R. 773 ; and see Waddell v. Blockey, L. Rep. 10 Ch. Div. 416.) If notice to discontinue the action is given, the appeal comes to an end : ifionyieare v. Lewis, L. Rep: 13 Ch. Div. 469.) (2) Amendment of Notice. Any notice of appeal may be amended at any time as to the Court of Appeal may seem fit : (O. LVIII., r. 3.) 58 Appeal. The bonxt of Appeal has fuU discretion as to amendment, and special circumstances neea not be shown : {Be Stockton Iron Furnace Convpemy, L. Hep. 10 Oh. Div. 335.) (3) Service. The notice of appeal shall be served upon all parties directly affected by the appeal, and it shall not be necessary to serve parties not so affected; but the Court of Appeal may direct notice of the appeal to be served on all or any parties to the action or other proceeding, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may seem just, and may give such judg- ment and make such order as might have been given or made if the persons served with such notice had been originally parties : (O. LVIII., r. 3.) Where the one of two defendants, against whom a decision had been given, appealed, the Court ordered the other defendant, in whose favour the decision had been given, to be served, and adjourned the appeal in the meantime : (Purnell v. Great Western Railway Gom/pany, L. Rep. 1 Q. B. Div. 636 ; 45 L. J. 687, Q. B. ; and see HvMter v. Hwider, 24 W. R. 504.) 5. Time foe Appeaiing. (o) From, Interlocutory Order. No appeal from any interlocutory order shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days : (0. LVIII., r. 15.) Where an order on an interlocutory application is included in an order made on further consideration, an appeal from the former part must be made within twenty-one days {Gwmmins v. Heron, L. Rep. 4 Ch. Div. 787 ; 46 L. J. 423, Ch.) ; and where an order was made on further consideration and adjourned summons to vary the chief clerk's certificate, it was held that the appeal must be, as from the substantial part of it, an interlocutory application: {White v. Witt, Jj. Rep. 5 Ch. Div. 589; 37 L. T. Rep. N. S. 110; 46 L. J. 560, Ch. ; 25 W. R. 455.) An interlocutory order which amounts to a finding a verdict is not open to appeal after twenty-one days, because the time for appealing from the final order founded on it has not expired : (per James, L.J., White v. Witt, sitp.) The fdUlowing are interlocutory : An order on summons by a creditor in an administration action {Pheysey v. Pheysey, L. Rep. 12 Ch. Div. 305 ; 41 L. T. Rep. N. S. 607) ; An order to sign final judgment on a specially indorsed writ {Standard, BiseovMt Comipmiy v. La Gram,ge, L. Rep. 3 C. P. Div. 67 ; 37 L. T. Rep. N. S. 372 ; 47 L. J. 3, C. P. ; 26 W. R. 25) ; An order on an application {o vary the chief clerk's certificate {White V. Witt, swp.) ; An order refusing a motion to a judge to discharge an order made in chambers {Dickson v. Sarrison, sri/p.) ; A definite verdict of a judge of the Chancery Division on a matter of fact {Krehl v. Burrell, L. Rep. 10 Oh. Div. 420 ; 39 L. T. Rep. N. S. 461 ; 40 L. J. 252, Ch. ; 27 W. R. 234), whether the verdict on the facts is given on a day prior to the judgment on the whole case, or whether both a,re given at the same time, provided that before the trial begins there is a distinct announcement that the issues of fact are to be tried separately, and such issues are then definitely settled {Lowe v. Lowe, L. Rep. 10 Oh. Div. 432 ; 40 L. T. Rep. N.' S. 236 ; 48 L. J. 361, Oh. ; 27 W. R. 309 ; Potter v. Cotton, 41 L. T. Rep. N. S. 460 ; 28 W. R. 160) ; An order on an interpleader issue {McAndrew v. Barker L. Rep. 7 Oh. Div. 701). ^ Appeal. . 59 (6) From Winding-vp, BarJcrv/ptcy, or other Matter not an Action. The time for appealing from any order or decision made or given in the matter of the winding-up of a company under the provisions of the Com- panies Act, 1862, or any Act amen(£ng the same, or any order or decision made in the matter of any bankruptcy, or in any other matter not being an action, shall be the same as the time limited for appeal from an interlo- cutory order [viz., twenty-one days] : (O. LVIII., r. 9.) The following orders are within the rule : An order on a petition to wind-up a company {Be National Funds Assurance Company, L. Bep. 4 Ch. Div. 305 ; 35 L. T. Rep. N. S. 689 ; 46 L. J. 183, Oh. ; 25 W. R. 158) ; An order as to placing on, and removing from, the list of oontributories, a person's name {Taylor's case, L. Rep. 8 Oh. Div. 643 ; 47 L. J. 701, Oh.) ; An order made under the Trustee Relief Act {Be Bailie's Trusts, L. Rep. 4 Ch. Div. 785 ; 35 L. T. Rep. N. S. 917 ; 46 L. J. 330, Oh. ; 25 W. R. 310) ; An order made under the Vendor and Purchaser Act, 1874, s. 9 {Be Blyth and Yowng, L. Rep. 13 Oh. Div. 416 ; 41 L. T. Rep. N. S. 746). . (c) From Final Orders and Judgments. No other appeal shall, except by such leave [of the Court of Appeal] be brought after the expiration of one year : (O. LVIII., r. 15.) The time for appeal from an order which is final, though made on an interlocutory application, in one year : {Attorney-General v. Great Eastern Bailway Company, 40 L. T. Rep. N. S. 65 ; 48 L. J. 429, Ch. ; 27 W. R. 759.) The following are final : An order made on a petition in an old suit directing payment only, to the person whom the court held entitled, of a fund in court {Harris v. Newton, 21' L. J. 630) ; An order overruling a demurrer {Trowell v. Shenton, L. Rep. 8 Ch. Div. 321) ; A decision in an issue stated under the Reguktion of Railways Act, 1868, 8. 41, as to compensation {New Biver Company v. Midland Bailway Company, 36 L. T. Rep. N. S. 539) ; A decision of a judge of the Chancery Division involving a finding of fact, although distinct from the rest of the judgment, if ho definite issues of fact were settled before the commencement of the trial {Lowe v. Lowe, sup. ; DolVmam, v. Jones, L. Rep. 12 Ch. Div. 553 ; 41 L. T. Rep. N. S. 258; Potter v. Cotton, sup.). {d) How calculated. The said respective periods [of twenty-one days and one year respeotiveljr] shall be calculated from the time at which the judgment or order is signed, entered, or otherwise perfected, or, in the case of the refusal of an application, from the date of such refusal : (O. LVIII., r. 15.) The time runs in the case of an order actually granted from the signing, not the pronouncing, of the order : {Ex parte Garrard, L. Rep. 5 On. Div. 61 ; 46 L. J. 10, Bank.) Where an order is granted, but in form not satisfactory to the applicant, the time does not run till the order has been drawn up : {Berdam v. Birmmgham Small Arms Company, L. Rep. 7 Oh. Div. 25 ; 37 L. T. Rep. N. S. 588 ; 47 L. J. 96, Oh. ; 26 W. R. 89.) The time for appealing from the dismissal of a suit at the hearing dates from the time of pronouncing judgment : {International Financial Society v. City of Moscow Gas Company, L. Rep. 7 Ch. Div. 241 ; 37 L. T. Rep. N. S. 736; 47 L. J. 258, Oh. ; 26 W. R. 272.) 60 Appeal. Where an order is wholly refused, the time runs from when the judge so declares : {Berdam, v. Bi/rmAngham Small Arms Company, swp.) Where several claims are made by an application and some are granted and others refused, the time for an appeal from the refusal only runs from the date of the refusal, not the perfecting of the order : {Trail v. Jachson, L. Rep. 4 Oh. Div. 7 ; 46 L. J. 16, Ch. ; 25 W. B. 36.) When a judge of the Chancery Diidsion refuses a motion before him in court to discharge or vary an order made by him in chambers, the time runs from the date of such refusal, and not from the date of the drawing up of the order made in chambers : {Dickson v. Harrison, L. Rep. 9 Ch. Div. 243 ; 38 L. T. Rep. N. S. 796 ; 47 L. J. 761, Ch.) Where a petitioner applied for payment of a fund out of court, the title as to one-half of which was not disputed, and the court ordered that half to be paid out, it was held that the time for appealing ran from the date of drawing up the order : {Be Michell's Trusts, L. Rep. 9 Ch. Div. 5 ; 48 L. J. 50, CTi.) When an interlocutory motion is. refused, and the court adds a direction as to the costs of the application, the time for appealing is not thereby ■extended : {Swindell v. BirrMMgham, Syndicate, L. Rep. 3 Ch. Div. 127.) Sundays are included in the twenty-one days : {Hx parte Viney, L. Rep. 4 Ch. Div. 794.) The time runs notwithstanding the closing of the office : {Ex parte Saffery, L. Rep. 5 Ch. Div. 365; 36 L. T. Rep. N. S. 552; 46 L. J. 89, Bank. ; 26 W. B. 672.) When the notice of appeal is too late, the filing by the respondent of .affidavits in reply wiU'not cure the defect : {Ex parte Fa/rdon's Vinegar Company, W. N. 1880, p. 76.) (e) Special Leave enla/rging Time. " Special leave " means leave granted on the ground of special cireum- .stances : (per Jessel, M.R., Be Stockton Iron Furnace Company, L. Rep. 10 Ch. Div. 348.) After the time has elapsed very special circumstances must be shown to induce the court to give further time, as misleading conduct on the part of the other side, a mistake made in the office itself, or by some officer of the court, or some sudden accident which could not be foreseen : {Inter- national Financial Society v. City of Moscow Gas Company, svp.) The fact that an appellant has misconstrued the provisions of one of the rules is not such a special circumstance as to induce the court to give further time to appeal : {Id.) The fact of an informal notice of appeal having been given is not a sufficient special circumstance : {Be Blyth and Yowag, L. Rep. 13 Ch. Div. 416 ; 41 L. T. Rep. N. S. 746.) A hona fide mistake of the party's legal advisers as to the time within which the appeal must be brought is not of itseK a sufficient special circumstance : {Eighton v. Trehernb, W. N. 1878, p. 227 ; 39 L. T. Rep. N. S. 411 ; 48 L. J. 169, Ex. ; 27 W. R. 246 ; McAndrew v. Ba/rker, svp.) Nor is a mistake as to setting down the appeal : {Be Mansel, L. Rep. 7 Ch. Div. 711.) Nor is the fact that the Court of Appeal has come to a different opinion on a doubtful point of law, at any rate after the time has elapsed for appealing, and the decree is final,' and there is no fund remaining in court : {Craig v. Phillips, L. Rep. 7 Ch. Div. 249 ; 37 L. T. Rep. N. S. 772 ; 47 L. J. 239, Ch. ; 26 W. R. 292.) Nor is the discovery of fresh evidence a sufficient (Special circumstance : {Exchange and Discount Bank v. Billvnghurst, W. N. 1880, p. 2.) But where a notice of appeal had been given within time, and then Appeal. 61 withdrawn under a mistake in favour of another notice which was not in. time, an extension was allowed : (Taylor's case, L. Rep. 8 Ch. Div. 643 ; 42 L. J. 696, Oh.) After the time has elapsed for appealing, an application for extension of time is by motion on notice : (Evennett v. Lawrence, L. Rep. 4 Oh. Div. 139 ; 46 L. J. 119, Oh.) 6. Setting Down Appbai. The party appealing from a judgment or order shall produce to the proper oflBlcer of the Court of Appeal the judgment or order or an office copy thereof, and shall leave with him a copy of the notice of appeal to be filed, and such officer shall thereupon set down the appeal by entering the same in the proper list of appeals : (O. LYIII., r. 8.) A praecipe must also be delivered, the form of which is given in Schedule E. 27, to the Rules of April, 1880. The entry is not now the Aaterial step : {Ex parte Saffery, L. Rep. 5 Oh. Div. 366.) The appeal must be set down before the day named in the notice of appeal for making the motion, or if the court is not then sitting, before the next sitting day, or the appeal wiU be dismissed on the respondent's application, as an abandoned appeal: (Be National Fvmds Asswrance Com/pany, L. Rep. 4 Ch. Div. 306 ; Be Mansel, sup. ; Shoetensaek v. Price and Go. W. N. 1880, p. 69.) If the party obtaining an interlocutory order does not draw up the order till after twenty-one llays have expired, and notice of appeal has been given within that time, he cannot object that the appeal has not been set down before the day named in the notice : {Be Harker ; Goodba/rne v. Fothergill, L. Rep. 10 Oh. Div. 613 ; 40 L. T. Rep. N. S. 408 ; 27 W. R. 587.) An appeal from the refusal of an interlocutory order may be set down without production of the order appealed from or a copy : {Smith v. Grinelley, L. Rep. 3 Oh. Div. 80.) 7. Abandoned Appbai,. The appeal is not before the court untU set down and entered, and. if this is not done the appeal is abandoned, though, if the time for appealing has not expired, a foesh notice may be given : {Norton v. London and. North-Western Bailway Company, L. Rep. 11 Ch. Div. 118.) If the appeal is not set down the respondent who has been served with notice of appeal is not bound to appear: {Webb v. Mansell, L. Rep. 2 Q. B. Div. 117 ; 25 W. R. 389.) T£ he appear, he cannot move to dismiss for want of prosecution, but is only entitled to his costs of an abandoned appeal : {Waddell v. Blockey, L. Rep. 10 Oh. Div. 416); and he cannot then get his costs of the abandoned appeal, but must make a substantive motion {Id. ; Price v. Price, 21 L. J. 478 ; Maehvb v. O'Connor, W. N. 1878, p. 144), of which notice must be given : {Id.) The costs of the application for costs of the abandoned appeal wiU not be allowed unless a demand has been made for the latter costs, and not complied with : {Griffin v. Allen, L. Rep. 11 Oh. Div. 913.) When the appellant has given notice withdrawing his notice of appeal as irregular, a motion to discharge the notice of appeal as abandoned must not be made ex parte : {Be Oahwell Collieries, L. Rep. 7 Oh. Div. 706 ; 26 W. R. 577.) When an appeal has been set down by the appellant, and is in the paper for hearing, and he does not appear, the respondent is entitled to have the 62 Appeal. appeal dismissed without proving service of the notice of appeal : {Ex pa/rte Lows, L. Rep. 7 Ch. Div. 160 ; 37 L. T. Rep. N. S. 683 ; 47 L. J. Bant. 24 ; 26 W. R. 229.) If the respondent does not appear, the appellant on proving service of the notice of appeal may proceed in the respondent's absence. 8. Oeoss Appeal. (a) Notice hy Respondent. It shall not, under any circumstances, he necessary for a respondent to give, notice of motion by way of cross appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the court below should be varied, he shall give notice of such intention to any parties who may be affected by such contention : (O. LVIII., r. 6.) As to what parties may be served with such a notice, see Ex parte Payne (L. Rep. 11 Oh. Div. 639). The rule applies when the question sought to be raised is one in which the original plaintiff has no interest : {Rvmter v. Hunter, W. N. 1876, p. 138 ; Ralph V. CarricJe, L. Rep. 11 Ch. Div. 873 ; 28 W. R. 67 ; and see CracknaU v. Jamson, L. Eep. II Ch. Div. 1 ; 40 L. T. Rep. N. S. 640; 27 "W. R. 851.) Subject to any special order which may be made, notice by a respondent shall, in the. case of any appeal from a final judgment, be an'eight days' notice, and in the case of an appeal from an interlocutory order a two days' notice : (O. LVHI., r. 7.) (6) Effect of Respondent's Omission to give Notice. The omission [by the respondent] to give such notice shall not diminish the powers conferred by the [Judicature] Act [1873] -upon the Court of Appeal, but may, in the discretion of the court, be ground for an adjourn- ment of the appeal, or for a special order as to costs : (O. LVIII., r. 6.) 9. Hearing. [The appeal] shall come on to be heard according to its order in [the list of appeals] unless the court or a judge thereof shall otherwise direct, but so as not to come into the paper for hearing before the day named in the notice of appeal : (O. LVIII., r. 8:^ AU appeals to the Court of Appeal shall be bv wav of re-hearing : (0. LVIII., r. 2.) ^ ^ ^ ^ Every appeal to the Court of Appeal shall, where the subject-matter of the appeal is a final order, decree, or judgment, be heard before not less than three judges of the said court sitting together, and shall, when the subject-matter of the appeal is an interlocutory order, decree, or judg- ment, be heard before not less than two judges of the said court sitting together: (J. A., 1875, s. 12.) Any doubt which may arise as to what decrees, orders, or judgments are final, and what are interlocutory, shall be determined bv the Court of Appeal: (J. A., 1876, s. 12.) Two counsel are heard on each side : (Sneeshy v. Lancashire and Yorkshire Railway Company, L. Rep. 1 Q. B. Div. 44.) When a case has been argued on its merits in the court below, and a technical objection might have been, but was not then made, it wiU not be allowed to be made on appeal : {Oilbert v. Endean, L. Rep. 9 Ch. Div. 260.) The court wiU not allow the appellant to raise a case totally inconsistent with and contradictory to that which he originally raised : [Ex vaHe Reddish, Ij.Reja. 5 Gh. Div. 882.) The court will not allow the whole of an order to be opened for the Appeal. 63 purpose of making a difEerent order as to costs : (Be New Gas Company, 25 W. R. 643.) The Court pf Appeal [has] all the powers and duties as to amendment and otherwise of the court of first instance .... (O. LVIII., r. 5.) 10. Evidence. (a) How Brought before Court. When any question of fact is involved in an appeal, the evidence taken in the court below bearing on such question shsSl, subject to any special order, be brought before the Court of Appeal as follows : — (i.) As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed. (ii.) As to any evidence given orally, by the production of a copy of the judge's notes, or such other materials as the court may deem expedient : (O. LYHI., r. 11.) If, upon the hearing of an appeal, a question arise as to the ruling or direction of the judge to a jury or assessors, the court shall have regard to verified notes or other evidence, and to such other materials as the court mav deem expedient: (O. LVIII., r. 13.) IE evidence has been dealt with in the court below, as if admissible, it cannot be objected to in the Court of Appeal : (Gilbert v. Endean, sv/p.) Office copies are dispensed with if the originals are produced : (Siekles v. Norris, 45 Ll J. 148, C. P.) And it is not necessary to supply each judge with office copies, it being sufficient if office and ordinary copies are in court : (Crawford v. Sornsea Steam Brich and Tile Works Company, 24 W. R. 422.) At the hearing of an appeal a party is entitled to read a shorthand •writer's notes of the evidence taken in the court below as his impression of what passed; and the judge's notes will be taken by the Court of Appeal to represent rightly the whole effect : (Be Gee ; La/ming v. Gee, 41 L. T. Rep. N. S. 744.) The Court of Appe'al, howeyer, strongly discourages shorthand notes of evidence. The judge's notes ought, as a general rule, to be sufficient for the purposes of appeal : (Kelly v. Byles, L. Rep. 13 Ch. Div. 693.) Where an appellant had, by reason of his poverty, been unable to take shorthand notes of the evidence in the court below, the Court of Appeal sent a request in writing to the judge of the court below for a copy of his notes of the evidence, that the appellant might not be prejudiced in the prosecution of his appeal : (Dence v. Mason, 41 L. T. Rep. N. S. 573.) The Court of Appeal is not bound to accept the decision of the court below on a question of fact where the evidence is conflicting (Bigsby v. Dickenson, inf. ; The Gladibanta, L. Rep. 1 P. Div. 287) ; but the case should be an exceptional one to induce the Court of Appeal to interfere with the view the judge below has taken of the evidence : (Ungley v. Ungley, L. Rep. 5 Ch. Div. 890 ; 25 W. R. 734.) . (6) Ordering Evidence to be Printed. Where evidence has not been printed in the court below, the court below or a judge thereof, or the Court of Ai)peal or a judge thereof, may order the whole or any part thereof to be printed for the purpose of the appeal: (O. LVIH., r. 12.) A copy of the judge's notes has been ordered to be printed: (W. N. 1876, p. 23.) Any party printing evidence for the purpose of an appeal without such order shall bear the costs thereof, unless the Court of Appeal or a judge thereof shall otherwise order : (O. LVIII., r. 12.) 64 Appeal. (c) Fv/rfher Evidence. (1) How taken. The Court of Appeal [has] .... full discretionary power to receive farther evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner : (O. LVIII., r. 5.) Further evidence includes any evidence whatever not used at the trial or hearing below, and it is immaterial that it might have been used in the court below on giving notice : {Re Chermell, L . Bep. 8 Oh. Div. 505 ; 38 L. T. Rep. N. S. 494 ; 47 L. J. 583, Ch. ; 26 W. R. 595.) When a party, taken Iw surprise, is refused permission below to produce rebutting evidence, the Court of Appeal wiU, in a proper case, permit the fresh evidence to be taken on appeal : (Bigsby v. Dickenson, u. Rep. 4 Ch. Div. 24.) But parties cannot take the chance of the result of the hearing below, and then tender fresh evidence on appeal: (iJe Phcenix Bessemer Sted Compcmy, L. Rep. 4 Oh. Div. 115.) Affidavits to be used in the Court of Appeal should be filed in the court below : (Watts v. Watts, 45 L. J. 658, Ch.) As to admitting parol evidence, see Be Goal Economising Gas Com- pam,y, 45 L. J. 83, Ch.; Weston's case L. Rep. 10 Ch. Div. 579; 40 L. T. Rep. N. S. 43 ; 48 L. J. 475, Oh. ; 27 W. R. 310). (2) Where special leave required. Such further evidence maybe given without special leave upon interlocu- tory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought : (O. LYUI., r. 5.) Upon appeals from a judgment after tri.al or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent) [to the date of the decision from which the appeal is brought] shall be admitted on special grounds only, and not without special leave of the court : (O. LYIII., r. 5.) When special leave is required to produce further affidavit or docu- mentary evidence, a separate notice of motion for leave may be delivered {Re Chermell, si*p.), or notice may be given that special leave will be asked when the case comes before the Court of Appeal {Re Hastie, L. Rep. 1 Ch. Div. 562 ; 45 L. J. 288, Ch. ; Be ChenneU, svp.) ; but a party who wishes to examine fresh witnesses at the hearing of the appeal must apply for leave by motion previously to the hearing of the appe^ : {Dicks Y.Brooks, L. Rep. 13 Oh. Div. 652.) 11. JtTDGMENT ON APPEAI. Tor all the purposes of and incidental to the hearing and determination of any appeal within its jurisdiction .... and for the purpose of every other authority expressly given to the Court of Appeal by [the Judicature Act, 1873], the said Court of Appeal [has] all the power, authority, and juris- diction .... vested in the High Court of Justice : (J. A., 1878, s. 19.) The Court of Appeal shall have power to give any judgment and make any order which ought to have been made, and to make such further or orther order as the case may require. The powers aforesaid may be exercised by the said court, notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision : (O. LVIII., r. 6.) The Court of Appeal has incidental original jurisdiction only for the purpose of exercising its appellate jurisdiction : (per James, L.J., Flower Appeal. 65 Y. Lloyd, L. Rep. 6 Ch. Div. 297 ; 37 L. T. Rep. N. S. 419 ; 46 L. J. 838, Ch. ; 25 W. R. 793.) It has no power to make any order of or for the High Court except by way of substituting a proper order for an order improperly made {Id.) ; and the Court of Appeal cannot, when an action has been altogether dismissed by the court below, stay proceedings pending appeal, but it win, in a proper case, grant an injunction restraining any of the parties parting with the property till the hearing of the appeal: {Wilson v. Ghwrch, L. Rep. 11 Ch. Div. 576 ; 27 "W. R. 843.) A new trial has been ordered not only as between a plaintiff and one defendant appealing, but as against the other defendant in whose favour was the decision below : {Pumell v. Chreai Western Railway Cornpany, L. Rep. 1 Q. B. Div. 636.) And the court may maJce a proper decree independently of any notice by the respondents : {Kevan v. Cmawford, 21 S. J. 668.) In rectifying an order made below, the court may set aside anything done under it, as by directing a call to be repaid : (iJe British Farmers' Gom/pany, L. Rep. 7 Ch. Div. 540.) But the court cannot order a petition to wind-up to be transferred for original hearing with the hearing of an appeal from the dismissal of a petition against the same company : {Re Bimraven Coal and Iron Mining Company, 33 L. T. Rep. N. S. 371 ; 24 W. Rep. 37.) And cannot make an order of the House of Lords an order of the High Court : {British Bynamite Company v. Krebs, L. Rep. 11 Ch. Div. 448.) No interlocutory order or rule from which there has been no appeal shall operate so as to bar or prejudice the Court of Appeal from giving such decision upon the appeal as may seem just : (O. LVIII., r. 14.) The object of this is to prevent parties being prejudiced by their having omitted to appeal from an interlocutory order (per MeUish, L; J., Sugden v. Lord St. Leona/rds, L. Rep. 1 P. Div. 209), although such order incidentally involves a decision of the point : (per Jessel, M.R., White v. Witt, sitp.) If upon the hearing of an appeal from a judgment pronounced by-a judge or court on the verdict or finding of .... a judge without a jury, it shall appear to the Court of Appeal that a new trial ought to be had, it shall be lawful for the Court of Appeal, if it shall think fit, to order that the verdict and judgment shall be set aside, and that a new trial shall be had : (O. LYHI., r. 5a,. March, 1879.) For all the purposes of and incidental to the amendment .... of any judgment or order made on any .... appeal .... the .... Court of Appeal shall have all the power, authority, and jurisdiction .... vested in the High Court of Justice : (J. A., 1873, s. 19.) 12. REHEABIIfa. The Court of Appeal has no jurisdiction to rehear an appeal, though fraud is alleged in procuring judgment in the original hearing, and fresh evidence is offered {Flower v. Lloyd, sup.) ; and, query, whether there is any remedy by original action to set aside the decree as obtained by- fraud : {Id., and compare Flower v. Lloyd, L. Rep. 10 Ch. Div. 327.) Where an appeal had been heard and dismissed, and the appellants pre- sented an appeal to the House of Lords, a motion that the Court of Appeal should rehear the case pro forma for the purpose of inserting in the order d^missing the appeal a document as having been read, which was not ill fact read to the court at the hearing, and which could not then be adduced in evidence because it had not been duly authenticated, ' was refused : {Fas pa/rte Banco de Portugal ; Be Hooper, 42 L. T. Rep. N. S. 210 ; W. N. 1880, p. 29.) 66 Appeal. 13. Execution. For all the ptirposes of and incidental to the .... execntion, ani enforcement of any judgment or order made on any .... appeal . . . the said Court of Appefl shall have all the power, authority, and jurisdic tion .... vested in the High Court of Justice : (J. A. 1873, s. 19.) 14. Stating Peooebdings. Vexatious appeal may be stayed : ( Vale v. Oppert, L. Rep. 5 Ch. Div. 969.^ An appeal shall not operate as a stay of execution or of proceedingi under the decision appealed from, except so far as the court appealec from, or any judge thereof, or the Court of Appeal, may so order ; and ne intermediate act or proceeding shall be invalidated, except so far as the court appealed from may direct : (O. LYIII., r. 16.) For cases in which proceedings have been stayed, see Southwell v BowcUtch, W. N. 1876, p. 38 ; Grant v. Banque Franco-Egyptienne, Id. 74 ; Cooper v. Cooper, L. Rep. 2 Ch. Div. 492 ; 45 L. J. 667, Oh. ; Morgan v. Elford, L. Rep. 4 Ch. Div. 388; The Attorney -General \. Swansea Im/provememts and Tra/mwa/ys Company, L. Rep. 9 Oh. Div 46 ; 48 L. J. 72, Ch. ; Adair v. Yoimg, L. Rep. 11 Oh. Div. 136; 40 L. T Rep. N". S. 598, and oases cited post. There is no authority for suspending an injunction once granted untU an appeal has been heard : {Flow&r v. Moyd, W. N. 1877, p. 81.) The Court of Appeal has no original jurisdiction, in any case wMcl has not reached hearing on appeal, to order a stay of proceedings oi execution: {Goddardv. Thompson, 47 L. J. 382, Q. B. ; 38 L. T. Rep N. S. 167.) The application must generally be made in the first place to the court oi judge below :■ (O. LTIIL, r. 17.) The application to the Court of Appeal is by motion (O. LVIII., r. 18), not ex pa/rte, but on notice : [Bepuhlic of Peru v. Weguelin, 24 W. R. 297.] The application to the Court of Appeal is a motion by way of appeal Attorney-General v. Swansea Improvements lO/nd Trarmways Compamy L. Rep. 9 Ch. Div. 46; 48 L. J. 72, Ch.) ; But it need not be formally entered as an appeal : {Id.) A person ordered in the court below to pay costs, must pay them intc court, notwithstanding proceedings are stayed : {Cooper v. Cooper, swp.) As a general rule, the costs of the application must be paid hy th( applicant : {Merry v. Nichalls, L. Rep. 8 Ch.- App. 205 ; Voopet Y. Cooper, sup. ; see Adair v. Yowag, sitp.) When a party is appealing to the House of Lords, the court will stai proceedings so far as to prevent the appeal from being, if suecessfnl nugatory, but the appellants will be put on terms to speed the appeal {Wilson V. Church, L. Rep..l2 Ch. Div. 454; 41 L. T. Rep. N. S. 296 PoUni V. Gray, L. Rep. 13 Ch. Div. 411 ; 41 L. T. Rep. N. S. 173 ; 4i L. J. 41, Ch.) And the application should be made to the Court of Appeal, not to th( Chancery Division : {The Khedive, L. Rep. 5 P. Div. 1 ; 41 L. T. E«p N. S. 392.} • An original application for a stay of execution is by motion on notice (Emma Silver Mining Company v. Lewis, 48 L. J. 504, C. P.) 15. IncidentaIi Applications. Every application to a judge of the Court of Appeal shaU be by motion and the provisions of Order LIII. shall apply thereto : (O. LVIU., r. 18. Order LIII. relates to motions in the High. Court of Justice. [Sei Motion.] Wherever uuder these rules an application may be made either to th A'p'peal. 67 court below or to the Court of Appeal, or to a judge of the court below or of the Court of Appeal, it shall be made in the first instance to the court or judge below : (O. LVIII., r. 17.) The motion to the Court of Appeal is by way of appeal, but need not be set down : (see siip. 14.) 16. Costs. (a) Effect of Non-payment in Court below. The fact that the appellants have not paid the costs iu the court below is not sufficient ground for depriving them of the right to have their appeal heard : {Plimpton v. Spiller, 21 S. J. 668 ; and see post (c). (6) Costs of Shorthand Notes (see post, c). (c) Costs of Appeal. The Court of Appeal [has] power to make such order as to the whole or any part of the costs of the appeal as may seem just : (O. LVIII., r. 5.) This rule applies to appeals »om the Chancery Court of Lancaster : {Anderson v. Welsby, W. N. 1876, p. 230.) As a general rule, the successful appellant gets his costs : (L. Rep. 1 Ch. Div. 41.) Each of two defendants, separately appealing, and successful, gets his costs : {Dickenson v. Dodds, L. Rep. 2 Ch. Div. 463.) As to costs of partly successful appeal in an administration action, see Macdonald v. Irvine, 47 L. J. 494, Ch. When an appellant succeeds on a point not raised in the court below, he gets the costs below, but not those of the appeal : {Hussey v. Payne, 47 L. J. 751, Ch.) Where plaintiff gave notice of appeal, and defendants gave counter- notice that judgment ought to be varied in their favour, and the appeal was dismissed, the Court ordered the appellants to pay the costs, except so far as they had been occasioned by the counter-notice : {The Lauretta, L. Rep. 4 P. Div. 25 ; 40 L. T. Rep. 444 ; 48 L. J. 66,P.D. & A. ; 27 W.R. 902.) The costs of shorthand notes of evidence in the court below are not allowed as a general rule, but only where a case is made out for such aUowanoe : {Re Duchess of WestmAnster Silver Lead Ore Company, L. Rep. 10 Ch. Div. 307 ; Kelly v. Byles, L. Rep. 13 Ch. Div. 682.) Under an order of the Court of Appeal, directing payment of costs, without any intimation that the taxation and payment are to be postponed, the party to whom they are ordered to be paid is entitled to have them taxed and paid forthwith : {Phillips v. Phillips, L. Rep. 13 Oh. Div. 60.) The court will not restrain a party from enforcing his certificate of taxing pending an appeal to the House of Lords, even though the plaintiff ofEers to pay into court such sum as may be directed. The costs must be paid, the solicitor of the other party giving his personal undertaking for repayment in case the decision is reversed in the House of Lords : {Merry v. Nichalls, sup. ; Morgan v. Elford, sup. ; Grant v. Banque Franco-Egyptienne, L. Rep. 3 C. P. Div. 202 ; 38 L. T. Rep. N. S. 622; 47 L. J. 455, C. P. ; Wilson v. Church (No. 2) L. Rep. 12 Ch. Div. 454.) {d) Deposit or Security for Costs. (1) When Ordered. Such deposit or other security for the costs to be occasioned by any appeal shaU be made or given as may be directed under special circum- stances by the Court of Appeal : (O. LVIII., r. 15.) The court wiU not order security to be given for the costs in the court below as a condition of hearing an appeal : {PUmpton v. Spiller, 21 S. J. 668.) f2 68 Appeal. The following have been held to be sufficient " special circmnstanceB :" non-payment of costs in the court below {Plimpton v. Spiller, siip.); insolvency of appellant, coupled with vexatious and unreasonable pro- secution of the appeal {Usill v. Brea/rley.h. Rep. 3 0. P. Div. 206^ 38 L. T. Rep. N. S. 249 ; 47 L. J. 380, 0. P. ; Waddell v. Blockey,^ L. Rep. 10 Ch. Div. 416) ; and insolvency alone seems prvma facie a sufficient reason (per Cotton L. J., Re Ivory, L. Rep. 10 Oh. Div. 372; 39 L. T. Rep. N. S. 235 ; Stock v. Sooper's Telegraph Works, W. ¥. 1876, p. 230) ; though the court has refused to order security when the appeal is on a new point {Bourke v. White Moss Colliery Company, L. Rep. 1 0. P. Div. 556) ; foreign residency of a foreigner having no assets in the country - {Grant v. Banque Franeo-Egyptienne, L. Rep. 2 C. P. Div. 430 ; 38 L. T. Rep. BT. S. 622 ; 47 L. J. 41, 0. P. ; 26 W. R. 68.) (2) Demand for. When the liability to give security is clear, security, when asked for, ought to be offered without an application to the court, and the offer, if reasonable, accepted : {The Constamtine, L. Rep. 4 P. Div. 166.) (3) Application for. The application to the court is by motion, on notice which may be served without leave : {Grills v. Dillon, L. Rep. 2 Ch. Div. 325 ; 45 L. JJ 432, Oh.) The application should be made before the costs of appeal are incurrea and the time fixed for hearing : {Grant v. Banque Franco-Egyptiemne^i L. Rep. 1 0. P. Div. 143.) If the liability to give security is clear, regard wiU be had to the con- duct of the parties in demanding and agreeing as to the security to be given as to the costs to be paid (see inf. 4). H the liability is not clear, the costs will be costs in the appeal: {Phosphate Sewage Compam/y V. Sartmont, inf.) (4) How Security given. The security is given by payment of money into court, or by giving a bond, with or without sureties, to the party or person requiring file security, unless the court or a judge otherwise directs, and not to an officer > of the court.: {Phosphate Sewage Company v. Sartmont, L. Rep. 2 Ch., Div. 811; Judd V. Green, L. Rep. 4 Oh. Div. 784; 46 L. J. 257, Oh.; O. LY. r. 3, April, 1880.) It is not the practice to fix a time for giving the security: {Vale\. Oppert, L. Rep. 5 Ch. Div. 633 ; Polini v. Gray.'L. Rep. 11 Oh. Div. 741. and see post, 5.) (5} Default. If the order is not complied with in a reasonable time the respondent.:, may move to dismiss the appeal for want of , prosecution ; but what is a , reasonable time must depend on the circumstances of each case : {PolAwAixi V. Gray ; Stwrla v. Freceia, L. Rep. 11 Ch. Div. 741 ; 28 W. R. 81.) r. If the security is given before the motion to dismiss comes on for hearing, the appellant must pay the costs of the motion, and until he has , . done so the appeal will not be heard : {Ex parte Isaacs, L. Rep. 10 Oh. Div. 1 ; 39 L. T. Rep. N. S. 520 ; 27 W. R. 297.) (6) Increasing Deposit. The court may order the deposit given to be increased, or further security to be given : (Be Baum, L. Rep. 10 Oh. Div. 1 ; 38 L. T. Rep. N. S. 924;26W. R. 890.) VII. FROM THE COURT OF APPEAL TO THE HOUSE OF LORDS. 1. Where Appeai lies. Subject as in [the] Act mentioned, an appeal shall lie to the House of Appeal. 69 Lords from any order or JTidgment of ... . Her Majesty's Court of Appeal in England : (Appellate Jurisdiction Act, 1876, s. 3.) Error shall not lie to the House of Lords : {Id., s. 11.) When it is sought to recover costs below they should be expressly appealed against : (Denison & Scott's H. L. Pr. 164.) An appeal is not generally allowed as to costs alone, when costs are in the discretion of the court below ; or from judgment by consent ; or, in general, on a mere point of form ; or on a point of practice, unless on clear proof of a miscarriage ; or, generally on matters of discretion : (D. & Sc. 68-73.) When the costs of an appeal dismissed for non-prosecution have not been paid, it is ground for a petition to the House against the reception of a fresh appeal : {Id., 75.) 2.' Pakties. (a) WTio may appeal. Any persons properly made parties in the court below, and who have a direct or some probable interest in the matter, may appeal ; and persons improperly made parties below may appeal where costs have been given against them : (D. & S. 31.) A purchaser, though not a party, may appeal against an order setting aaide a purchase made under a decree in the cause : {Id.) A creditor under a decree may appeal against the disallowance of a claim : {Id.) (b) Paupers. Persons may be allowed to prosecute an appeal as appellant or respon- dent in forma pauperis. They must present a petition for leave, two clear days' notice of the intention to do so being given to the other side. The petition is necessary even when a person had been allowed to sue in formd pavperis in the court below. The petition must be accompanied by an affidavit setting forth that the petitioner is not worth 51. in the world except the matter in question and his wearing apparel, and by a certificate from the minister and churchwardens stating that they know him to be a very poor man : (D. & S. 54.) (c) Declining to join as AppMants. When persons parties below, with an interest in the cause, decline to join as appellants, the responsibility wiU rest on the appellants to make them respondents : (D. & S. 32.) {d) Non-joinder. When any party below has been omitted to be made a party in the appeal, he may present a petition to be added, notwithstanding the printed cases have been lodged : {Id. and see post, 11 {g).) An objection for want of parties to the action wiU not be allowed to be made for the first time on the appeal : {Id., 33.) (e) Change of Parties. When a party to a suit sells and conveys all his right and interest under the decree to another for valuable consideration, it is an absolute bar to an appeal from that decree : (D. & S. 32, and see post, 11 {g.) and Paetibs.) 3. Time poe Appealing. Except when otherwise provided by statute, no petition of appeal [is] received, unless the same [is] lodged .... within one year from the date of the last decree, order, judgment, or interlocutor appealed from : (Standing Order I.) 70 Appeal. Delivery of the petition of appeal to the housekeeper as late as mid- night on the last day for bringing the appeal is a good lodgment i (D. &S. 43.) In cases in which the person entitled to appeal are within the age of one and twenty years, or covert, non combos mentis, imprisoned, or out ol jGrreat Britain and Ireland, such person may be at liberty to present his appeal to the House, provided that the same be lodged in the Parliamen* office within one year next after full age, disooverture, coming of sound mind, enlargement out of prison, or coming into Great Britain oi Ireland. But in no case shall any person or persons be allowed a longer time, on account of mere absence, to present an appeal, than five years from the date of the last decree, order, judgment, or interlocutor appealed against : (S. O. I., Nov. 1876.) A person going abroad to evade the decree of the court below is no< allowed the benefit of this provision : (D. & S. 38.) Although the time for appealing from an interlocutory order ha« expired, if the final decree is appealed from in time, the right to appeal from the interlocutory order is saved : {Id.) 4. Law Officer's Fiat. An appeal shall not be entertained by the House of Lords without the consent of the Attorney-General or other law officers of the Crown, in any case where proceedings in error or on appeal could not hitherto have been had in the House of Lords without the fiat or consent of such officer : (A. J. A., 1876, B. 10.) 5. Notice of Intention to Appeal. Previous to any petition of appeal being presented to [the] House, notice shall be given to the agent or agents of the party or parties in the court . below, who shall be made respondent or respondents to the said appeial, of the time when such petition of appeal is intended to be presented to [the] House : (S. O., 9th April, 1812 ; 43 Lords' Joum. 676, 685.) A correct copy of the petition of appeal must be served at the same time : (D. & S. 42.) Not less than two clear days' notice must be given : (Note to S. 0., Nov., 1876.) The notice will not of itself stay interim execution of a judgment appealed from : (D. & S. 42.) 6. Petition of Appeal. {a) To he method of Appealing. Every appeal shall be brought by way of petition to the House of Lords, praying that the matter of the order or judgment appealed against maj be reviewed before Her Majesty the Queen in her court of Pariiament, ii order that the said court may determine what, of right, and according tc the law and custom of this realm, ought to be done in the subject-matte) of such appeal : (A. J. A., 1876, s. 4.) (6) Form. A form' of petition is given in the Standing Orders of November, 1876 W. N. 1876, part 2, p. 475. The schedule must set out the title of the parties to the cause oi matter; and the decrees, orders, judgments, or interlocutors appealec against, and where the appeal is not against the whole decree, the par appealed against must be defined : (S. O., Nov., 1876.) When the appeal is from the whole decree, both the formal and effectivi parts must be printed in italics ; where part only is appealed from, tha' part must be prmted in italics, the rest being Roman type : (D. & S. 45.) Appear. ' 71 (c) Printing. The appeal (must be) printed on parchment (quarto size), in such form as will enable paper copies thereof to be hereafter bound up with the printed cases : (Directions, S. O., Nov., 1876 ; W. N. 1876, 475 ; and see sup. (b).) (d) Counsel's Signature. AH petitions of appeal [must] be signed, and the reasonableness thereof certified, by two counsel who shaE have attended as counsel in the court below, or shall purpose attending as counsel at the hearing in [the] House : (S. O. n., Nov., 1876; W. N., 1876, p. 475.) Counsel must sign at the end of the petition, and at the end of the schedule. (e) Certificate of Serving Notice. The day on which .... notice [of the intention to appeal] was given, or caused^to be given, shall be indorsed by the agent or agents for the petitioner on the back of the [petition of] appeal : (S. O., 9th AprU, 1812, 43 Lords' Joum. 676, 685.) * The certificate is written on the last page of the petition : (D. & S. 42.) The form of indorsement is given in the Standing Orders of November, 1876. (/) Lodgment. The petition of appeal must be lodged in the Parliament Of&ce : (Directions, S. 0., Nov., 1879.) Four printed copies of the petition must at the same time be lodged : (D. & S. 42.) It may be lodged in recess : (Id., 47.) {g) Presentation. The appeal is laid upon the table by the clerk of Parliaments, though nominally presented by the Lord Chancellor : (Id.) (h) Amendment. Errors in the appeal may be corrected on petition, of the intention to present which two days' notice must be given to the other side : (D. & S. 46.) Mere clerical errors may be corrected by permission of the clerks of the judicial office, but not generally by the pen : (Id.) 7. Oedek fob Sebvice. (a) When Granted. If the House be ... . sitting [when the petition is lodged], or, if not, on the next ensuing meeting of the House, an order thereon for service on the respondents or their solicitors, ordering the respondents to lodge cases in answer to the appeal, will be issued to the appellant's agent : (Directions, S. 0., Nov., 1876.) (6) How Served. By delivering to the party mentioned a true copy of the order, at the same time showing him the original : (D. & S. 46.) The " order of service " issued upon the presentation of an appeal for service on the respondent or his solicitor [must] be returned to the Parliament office, together with an affidavit of due service entered thereon, within the time limited for the appellant to lodge his printed cases, unless within that period all the respondents shall have lodged their printed cases ; in default, the appeal to stand dismissed : (S. O. III., Nov., 1876.) The affidavit should be sworn before a commissioner in England or Ireland, or a justice of the peace in Scotland : (D. & S. 46.) 72 A-ppeal. If default is made the appeal may be entered on petition, or a new appeal presented, if in time : {Id.) 8. Sectteitt fob Costs. (a) Recognisance for 500Z. In all appeals .... tlie appellant or appellants [must] give secmity to the Clerk of the Parliaments by recognisance to be entered into, in person or by substitute, to the Queen of the penalty of five hundred pounds, conditioned to pay to the respondent or respondents all such costs as may be ordered to be paid .... by the House in the matter of the appeal : (S. O. IV., Nov., 1876.) Bach, appellant, where there are more than one, is required to enter into the recognisance: (Directions, S. O., Nov., 1876.) Parties suing in forma pawperis are not required to enter into the recognisance : (D. & S. 52.) Withiii one week after the presentation of the appeal the appellants [must] submit to the Clerk of the Parliaments (in the event of a substitute being proposed to enter into the recognisance in lieu of the appellants) the name of such substitute : (S. O. IV., Nov., 1876.) Two clear days' previous notice of the names so proposed (for recog- nisance) [is] to be given to the solicitor or agent of the respondents: [Id.) (h) Bond for, or Payment of, 200Z. [Besides the recognisance mentioned] the appellant or appellants must either — (a) Procure two sufficient sureties, to the satisfaction of the clerk of Parliaments, to enter into a joint and several bond to the amount of 200i., or (6) Pay in to the account of the fee fund of the House of Lords the sum of 200Z : (S. O. IV., Nov., 1876.) Parties suing in forma pauperis are not required to enter into the bond, or pay the money : (D. & S. 53.) Within one week after the presentation of the appeal the appellant or appellants [must] pay in to the account of the fee fund of the House of Lords the said sum of two hundred pounds, or submit to the Clerk of the Parliaments the names of the sureties proposed to enter into the said bond. All drafts and cheques must be made payable to " House of Lords Fee Fund," and be crossed, " Bank of England, Western Branch :" (S. 0. IV., Nov. 1876.) Two clear days' previous notice of the names so proposed, for bond .... [ig] to be given tg the solicitor or agent of the respondents : {Id.) (c) Certificate of Sufficiency of Substitute and Sureties. At the time of submitting the said names to the Clerk of the Parlia- ments a certificate from the solicitor or agent of the appellants is to be lodged in the Parliament office, certifying Ms belief in the sufficiency of the sureties and substitutes so proposed : (Directions, S. O., Nov., 1876.) The form of certificate is given in the Standing Orders of Nov., 1876. This certificate may be signed by the country solicitor or agent of the appellants : (App. A., S. 0., Nov., 1876.) {d) Objecting to Substitute. Objections to the substitute must be made by lodging within one week after lodgment of the certificate, a written statement setting forth the grounds of objection. If the Clerk of the Parliaments should think it a valid one, the appellant must, within three weeks after presentation of the appeals, lodge a petition in justification of his nomination, together with an affidavit by the proposed substitute setting forth specifically the nature of the property in consideration of which he claims to be Appeal. 73 accepted, and also that it is uniucumbered. A copy of the affidavit must be served on the agent of the respondent before lodgment of the same. Respondent's counter affidavits, if any, must be lodged as early as possible, copies being served on the appellant's agent. The petition in justification will as a general rule be ordered to lie on the table. The Clerk of Parliaments, upon considering the affidavits, will either accept or reject the substitute, and the petition will, a,t the instance of the Clerk of Parliaments, be ordered as prayed, or referred to the appeal committee : (D. & S. 50.) (e) Execution and Return of Bond and Recognisance. At the termination of one week from the lodgment of such certificate, the bond and recognisance are to be issued to the solicitor or agent of the appellants for execution before a commissioner appointed to administer oaths in the Supreme Court of Judicature in England, or a commis- sioner appointed to administer oaths in Chancery in Ireland, or before a justice of the peace in Scotland : «(Directions, S. O., Nov., 1876.). The said bond and the recognisance (whether entered into by the appel- lants or by a substitute) [mtist] be returned to the Parliament office duly executed within one week from the date of the issue thereof to the solicitor or agent of the appellant or appellants. On default by the appellant or appellants in complying with the above conditions, the appeal to stand dismissed : (S. O., IV., Nov., 1876.) The solicitors of those respondents who purpose lodging printed cases in answer to the appeal should attend at the Parliament office for the purpose of ascertaining the due execution of the recognisance and bond : (Direc- tions, S. O. Nov., 1876.) 9. Appeabancb. The solicitors of those parties who propose lodging printed cases in answers to the appeal should attend at the Parliament office for the purpose of . . . . entering their names in the appearance book. (Notice of the meeting of the appeal committee is only sent to the solicitors of respondents who have thus signified their appearance in the cause) : (Directions, S. O., Nov., 1876.) 10. Appendix op Documents. (a) Preparation of Appellant's Appendix. It is the duty of the appellant, with as little delay as possible after the presentation of the appeal, to furnish to the respondent a list of the pro- posed documents, and in due course a proof copy of the appendix. The proof is to be examined with the original documents by the respective solicitors of the parties : (Directions, S. O., Nov., 1876.) The costs incurred in printing .... will in the first instance be borne by the appellant : {Id.) As to the'manner of printing, see post, 11. (6) Delivery of Printed Copies. Ten copies of the appendix, as soon as printed, [are] to be delivered to the solicitor of the respondent : (Id.) (c) Preparation of Respondent's Appendix. The respondent is allowed to print any additional documents, used in evidence in the court below, which may be necessary for the support of his case on the argument of the appeal, such documents to be paged consecutively with the appendix : {Id.) The proof [is] to be examined .... by the respective solicitors, and [ten] prints [are] to be delivered to the solicitor of the appellants : {Id.) 74 Appeal. The costs will, in the first instance, be borne by the respondent : [Id and see post, 11.) 11. Pbinted Cases. (a) Bow Printed. The case and appendix must be printed 4to size, with seven or eigl letters in the margin for facilitating references, and should be submittei in proof to the clerks in the judicial office : (Directions, S. O., Nov., 1876] When reference is made to a document printed in the appendix, th case must contain a marginal note of the page of the appendix contaizunj such document : {Id.) (6) To he Signed by Counsel. All printed cases [are to] be signed by one or more counsel who shal have attended as counsel in the court below, or shall purpose attending a counsel at the hearing in [the] house : (S. O. V., r. 3, Nov., 1876.) (c) Joint Case. In appeals in which the parties are able to agree in their statement o the subject-matter, it is optional to lodge a joint case with reasons pri and eon., following the practice heretofore in use in common law appeal on a special case : (Direciaon, S. O., Nov., 1876.) (d) Lodgment. (1) Number of Copies. Forty copies (unbound) • of the case and appendix are required to bi lodged in the Parliament office : (Directions, S. 0., Nov., 1876.) (2) Time. The printed cases and the appendix thereto [must] be lodged in th( Parliament office within six weeks from the date of the presentation o; the appeal to the House i (S. O. V., Nov., 1876.) If the period expires during a recess it is extended to the third sittinj day of the next ensuing meeting of the House : (S. O. TIE., Nov., 1876.) (3) Default. On default by the appellant the appeal (wUl) stand dismissed : (S. 0. V. Nov., 1876.) , There is no penalty on respondents who do not lodge their printed case within the above time (Directions to S. O., Nov., 1876), but respondent can only appear at the bar on a printed case : (Id.) (4) Bound Copies. On the lodgment of the respondent's ease, ten .... copies [bound ii the manner specified in the following directions] are to be lodged in tb Parliament office : (Directions, S. O., Nov., 1876.) {Directions for Binding Printed Cases for the use of the Law Lords.) 1. Ten copies bound in purple cloth ; two of the ten to be interleaved as regards the cases only. 2. Short title of cause on the back. 3. Label on side, stating short title of cause and contents of the volume thus : — " A and others v. B and others." Printed copy of the appeal. Appellants case. Respondent B.'s case. Respondent O.'s case. Appendix. 4._ The volume to be indented, and the names of the parties written o the indentations to their respective cases. Appeal. 75 6. References to the reports of the cause in the courts below, or the words " Not reported," to be written on the fly sheet. 6. The bound copies to be lodged immediately after the respondent's cases are delivered in. The agents are requested to use their discretion as to the size of the Tolume, arrangement of the cases, and appendix. In dealing with bulky cases, it may be found advisable to bind the appendix as a separate volume, and also to divide the appellants' and respondents' cases into separate volumes. It is the duty of the appellants' agent to carry out these directions ; (App. B., S. O., Nov., 1876.) (e) Extenddng Time for Lodgment. Petition for Extension of Time to Lodge Oases, &c. The petition must be engrossed on foolscap paper, and (unless assent of respondent's agent be obtaiue^) a copy, and two clear days' notice of intention to present, must be given to respondent'sjagent : (App. C, S. O., Nov., 1876.) The form of petition is given in the appendix to the Standing Orders of November, 1876. Petitions for extension of time, lodged during the recess, do not prevemt the dismissal of an appeal: (Direction to S. O., Nov., 1876.) (/) Amendment. The printed eases may be amended on petition, of which two previous clear days' notice should be given to the other side : (D. & S. 90.) When there is a statement of fact in the case presented by the appellant, the respondent, if he objects thereto, should apply to have it struck out : (Id.) When clerical errors occur, and the parties consent, leave to amend is sometimes given on application by letter to the judicial ofB.ce, but not to do so by the pen : (Id.) (g) Supplemental Case. When any party or parties to an appeal shall die pending the same, subsequently to the printed case having been lodged, and the appeal shall be revived against his or her representative or representatives as the person or persons standing in the place of the person or persons so dying as aforesaid, a supplemental case shall be lodged by the party or parties so reviving the same respectively, stating the order or orders respectively made by the House in such case : (S. O. VIII., Nov. 1876.) Supplemental cases need not be lodged upon reviving an appeal which has become abated after a full hearing : (D. & S. 96.) The liie rule shall be observed by the appellant or respondent respec- tively, when any person or persons, party or parties in the court below have been omitted to be made a party or parties in the appeal before [the] House, and shall by leave of the House, upon petition or otherwise, be added as a party or parties to the said appeal after the printed eases in such appeal shall have been lodged : (Id.) 12. Additional Cases. An additional case may be allowed, on petition by either party : (D. & S. 91.) 13. Pbeliminakt Objections. Objections that the appeal is incompetent or irregular should be taken before the appeal is set down by petition to the House praying that it may be dismissed or amended on the ground named : (D. & S. 55.) It is generally referred to the Appeal Committee, who either report on 76 Appea . the point, or advise that the question should be argued by one counsel on each side at the bar : (Id.) 14. Setting Down. The appeal [must] be set down for hearing on the first sitting day after the expiration of [the period allowed for lodging the printed cases} or as soon before, at the option of either party, as all the printed cases and the ' appendix have been lodged : (S. O. V., Nov., 1876.) As soon as the printed cases of all parties and the appendix thereto have been lodged, it is optional for either side to set down the cause for hearing, but it is obligatory on the appellant, upon the lodgment of his printed cases and the appendix, to set down the cause for hearing withia the time limited . ... {ex parte as to those respondents who have not already lodged printed cases, upon proof, by affidavit, of the due service of the .... order of service .... upon the respondents or their solicitors) : (Directions to S. O., Nov., 1876.) A respondent who has lodged his printed cause is at liberty to set down the cause for hearing on the first sitting day after the expiration of the time limited .... for lodging printed cases : [Id.) [After the cause is set down it wul be] ripe for hearing, and wiU take its position on the effective cause list : (Id.) 15. Hearing. Parties may appear in person at the bar of the House, or by any number of counsel, two of whom only will be heard on behalf of each party ; (D. & S. 30.) When the case comes on it is taken to be regular, but when an objection to its form is taken by the respondent, the House may permit the heairiifg on the merits, giving leave to the appellant to present an amended petition wane pro tunc : (D. & S. 55.) In Fernie v. Yowng (Lords' Joum., 24th April, 1866), on such an objection the appeal was dismissed with costs : {Id.) When no party appears, the appeal is dismissed for want of prosecution without costs on either side : (D. & S. 99.) When the appellant only fails to appear, the respondent may have the appeal dismissed, costs being in their Lordships' discretion, and generally the dismissal is with costs : {Id. 100, and see post.) Unless the judgment is affirmed, it is doubtful whether the appellant may, if withia time, brine a fresh appeal : {Id. 102.) rr j ,8 Counsel are heard as follows : Two counsel open the case of the appellants, or of each class of the appellants where the interests of the claBses and the grounds of appeal differ ; then two counsel are heard for the respondents or for each similar class ; where the defence is the same only one counsel is heard for each class, then one counsel for the appellant, or for eachclass of appellants, as above, is heard : (D. & S. 103.) The parties are bound by the reasons stated in their respective caaes, but their counsel may urge other grounds : (D. & S. 83.) Parties cannot raise objections not raised in the court below, and on which they did not obtain the judgment of the court below, but such objection, may be raised in support of a decree : {Id., 107.) A respondent is not allowed, where there is no cross appeal, to contend that in one respect the decree below is too favourable to the appellant : (Id.) 16. Evidence. As a rule, no evidence can be used which is not used m the court below, but under special circumstances the rule may be departed from : (D. & S. ol, 111.) As a rule, only those matters can be referred to which are in the printed Appeal. 77 eases and the appendix, unless by consent some of them are referred to (Id., 109) ; but the court has, on the prayer of the parties, heard documents so referred to read at length : (Id.) A question of evidence may be argued, although not raised by the petition of appeal : [Id., 114.) When the decree does not refer to the evidence ou which it is founded, the House cannot look at the evidence : {Id., 115.) 17. Reheaehstg. If a case raises questions of considerable difficulty and importance, and there is a strong difference of opinion among their Lordships, the House will direct the appeal to be reheard : (D. & S. 109 ; De la Warre v. Sackville, W. N. 1877, p. 217 ; Lords' Journ. 3rd Aug., 1877.) 18. Judgment. (a) Delivery. Their Lordships state their reasons for advising the House to give judgment, affirming, reversing, or varying the decision appealed, after which the question is put, and the result announced by the Lord Chancellor : (D. & S. 116-7 ; Pryce v. Monmouthshire Com/pam/y, 49 L. J. 130, Q. B.) If the votes are equal, the decision is affirmed : [Id.) It is the function of the House to pronounce the judgment which the court below should have pronounced : {Id., 187.) (6) Application as to Costs. All application for costs, either of the affirmance or reversal of the appeal, or in the court below, must be made after their Lordships have stated their reasons, and before the House gives its judgment : (D. & S. 117.) (c) Draft Judgment. A draft copy of the judgment is drawn up by the Clerk of the Parlia- ments, and sent to the agents of all parties who have appeared at the bar on printed cases, to which draft a note of instructions is appended: (D. & S. 118.) A special day is named on the draft for its return, and the draft must be returned, if other than clerical alterations are made, to the judicial office, with reasons for and against the proposed amendments : (D. & S. 117-8.) The amendments and reasons are considered by the Clerk of the Parliaments, and the questions determined by him, or referred, at his instance, to one of their Lordships : (D. & S. 118.) {d) Fair Copy. ' When the wording is decided on, a fair copy, signed by the Clerk of the Parliaments, is issued to the successful litigant ; and this is the authoritative judgment, and further amendments are virtually impossible : (D. & S. 119.) (e) Entry in Journals. The judgment is recorded in the journals of the House : {Id.) (/) Printed Copies. Printed copies of the judgment are supplied to the agents requiring them : (Id.) (g) Finality. The judgment is conclusive in the particular case : (D. & S. 132.) (h) Amend/ment after Entry. The form of judgment may be amended after entry in the journals on good grounds shown, e.g., some clerical error in drawing up, or some palpable and evident mistake apart from the merits : (D. & S. 133.) 78 Appeal. The judgment may be amended on a point on which no judgment has been given below, and on which, through misapprehension, no argument has been stated to the House by the party against whom judgment was pronounced : (Id.) [i) Making Judgment an Order of the High Court. When the decision below is simply affirmed, the judgment of the House need not be made an order of the court below : (D. & S. 137.) When the decision is varied or reversed, it must be made an order of the court below : {Id.) The application must be made to the Chancery Division, not the Court of Appeal : {British Dyna/mite Gompa/ny v. Krebs, L. Rep. 11 Oh. Div. 448.) 19. Remitting Cause. The House will in some cases reverse or vary a decision, and remit the cause back, with a declaration as to the course the court below is to take : (D. & S. 139.) 20. Stating Pboceedings Below. The court can stiU stay proceedings below, pending appeal, but it is not the practice to do so, unless an application for the purpose has been made below and refused ; (D. & S. 76.) ' 21. Ceoss Appeal. AH cross appeals [must] be presented to the House within the period allowed .... for lodging cases in the original appeal : (S. O. VI., Nov. 1876.) Separate printed cases must be lodged, unless leave is given on petition to include the matter in the.original cases : (D. & S. 91.) No security for costs is required : {Id.) 22. Consolidations. Two or more appeals in a cause involving the same facts and points of law may be consolidated on petition : (D. & S. 44.) 23. Appeai Committee. The Appeal Committee is composed of such members of the House as attend during the Session : (D. & S. 29.) It investigates the matters forming the subject of petition in judicial causes, and reports to the house. It recommends either a simple admission or rejection of the prayer of the petition, or it sets forth a special order for the consideration of the House. Practically the report is always adopted by the House : {Id.) Counsel are not generally heard, but have been once, special leave being given : {Id., citing Lords' Jour. 3rd Aug. 1877.) 24. Incidental Applications. The petition mustbe engrossed on foolscap paper bookwise. If the assent of the other side is refused, two clear days previous notice of the intention, with a copy of the petition must be served on the opposing agent, two copies being lodged in Parliament Office : (D. & S. 96.) Application for postponement of a cause not in the paper must be made by petition or letter addressed to the Clerk of Parliament, through the ju^cial office : {Id.) 25. Costs. (a) Of Cause. The House possesses power to deal with the costs of am appeal, and also with the costs below : (D. & S. 142.) [The bond or sum given or paid as security for costs {ante) is] subject Appeal. 79 to the order of the House with respect to the costs of the appeal : (S. O. IV., Nov. 1876.) It was, up to 1877, the almost invariable practice not to give costs of a reversal (D. & S. 142, 145) but during and since the session of that year they have frequently been given : (Id. 145 ; Oarnet v. Bradley, L. Rep. 3 App. Gas. 944 ; 39 L. T. Rep. N. S. 261 ; 48 L. J. 186, Ex. ; 26 W. R. 698.) Generally a successful respondent obtains his costs : (Id.) When the decision of the Court of Appeal, reversing the decision of the court below, was reversed, and the original order restored, the costs of appeal to the Coui"t of Appeal, but not of the appeal of the House, were given to the party ultimately successful : {Mi,iors v. Battison, L. Rep. 1 App. Cas. 428.) when their lordships are equally divided in opinion, the recent practice has been to give no costs : {Pryce v. Mommouthshire Company, 49 L. J. 130, Q. B.) The court wiU, under particular circumstances, direct the costs of some or all of the parties to be paid out of the estate {Id., 159), but not when the efEect will be to make the winniag party pay them : {Id., 161.) (b) On Dismissal for Non Pros. Where neither party appeared, the dismissal was without costs : {Id.) When the appellant does not appear the dismissal will be with costs : {Id.) (c) On Non-ouppea/rance of Respondent. When the respondent has not appeared till the appeal is appointed for hearing, he will not, although heard at the bar, be allowed his costs although the appeal is dismissed : (D. & S. 163.) {d) When Cause Remitted. When a cause is remitted, the court below may be left to deal with the general costs in the cause ; or the costs of the appeal, and in the court below, may, when further proceedings are necessary, be ordered to be costs in the cause : {Id. 165.) (e) intimate Costs of Printing Appendices. These costs will ultimately be subject to the decision of the House with regard to the costs of the appeal : (Directions, S. O., Nov., 1876.) (/) Taxation. (!) On Application of Party. In aU cases in which [the] House shall make any order for payment of costs by any party or parties in any cause without specifying the amount the Clerk of the Parliaments or clerk assistant shall," upon the application of either party, appoint such person as he shall think fit to tax such costs : (S. O., Nov., 1876.) The application is. ma.de by depositing in the taxing oflS.cer'8 office a copy of the bUl of costs, with a request to tax indorsed thereon (Notice, Aug. 1877 ; see Form there.) A copy of the bill must also be served on the agent of the other side : (D. & S. 169.) And it is further ordered, that the same fees shall be demanded from and paid by the party applying for such taxation for and in respect thereof as are now or shall be fixed by any resolution of this House con- cerning such fees ; and the said person so appointed to tax such costs may, if he thinks fit, either add or deduct the whole or a part of such fees at the foot of his report : (S. O. X., Nov. 1876.) The person so appointed may tax and ascertain the amount and shall report the same to the Clerk of the Parliaments, or clerk assistant : {Id.) 80 Appeal. And the Clerk of the Parliaments or clerk assistant may give a certifi- cate of such costs, expressiugthe amount so reported to him as aforesaid; and the amount in money certified by him in such certificate shall be the sum to be demanded and paid under or by virtue of such order as afore- said for payment of costs : [Id.) (2) When Cause Remitted. The Chancery Division may send a requisition to the taxing ofiBcer of the House to tax the costs : (D. & S. 170.) (3) On Requisition of Master of RoUs, &c. Costs relating to appeals are also taxed upon a requisition from the Master of the RoUs, &e., as in costs relating to private bills : (Notice of Aug., 1877.) 26. Application of 2002. Deposit. (a) When Appeal Affirmed. In all cases where the appellant has paid in the sum of 200i., and when the House shall make any order for payment of costs by the appellant to the respondent, the Clerk of the Parliaments, or clerk assistant, shall pay over to the respondent or his agent the said sum of 200 J., or so much thereof as will liquidate the amount reported to the clerk of the Parliaments or clerk assistant by the taxing officer, as being due from the appellant to the respondent in respect of the appeal : (Directions to Agents.) In all cases where the amount so reported by the taxing officer shall exceed 200Z., the Clerk of the Parliaments, or clerk assistant shall, in his certificate, credit the appellant with the 200i. so paid over to the respon- dent : {Id.) Where there are two or more respondents entitled to their separate costs, the said 200Z. shall be divided between the respondents in proportion to the amount of costs reported by the taxing officer to be due to each respondent : {Id.) Where, after satisfying the order of the House, there be any sum i-emaining, part of the said 200Z., the same shall be paid back to the appellant or his agent upon a proper receipt for the same being given to the Clerk of the Parliaments or clerk assistant : {Id.) (6) When Appeal Reversed. In all cases in which the appellant is not ordered to pay the costs of the appeal, the Clerk of the Parliaments or clerk assistant shall, on receiving a proper receipt for the Same, pay back to the appellant or his aarent the said sum of 200?. : {Id.} (c) When Appeal Dismissed for Non Pros. In cases in which an appeal is dismissed for want of prosecution,' the appellant shall be at liberty to serve a notice of such dismissal, according to the form (App. D. to S. O., Nov., 1876), upon the agent of the respondents (such service to be verified, if necessary, by affidavit) ; and unless the respondent shall, within four weeks from the date of such service, if the House be then sitting, or not later than the tldrd sitting day after the expiration of the said four weeks, lodge in the office of the taxing officer of the House a copy of his bill of costs, the Clerk of the Parliaments or clerk assistant shall, upon a proper receipt for the same being given, repay to the appellant or his agent the said sum of 200J. : {Id.) In the event of the respondent so lodging his bill of costs as aforesaid, the taxing officer may, if the sum demanded by the respondent be less than 2002., tax the same; and the Clerk of the Parliaments or clerk assistant shall pay over to the respondent or his agent so much of the Appeal — Appearance. 81 said sum of 200Z. as will liquidate the amount reported to the Clerk of the Parliaments or clerk assistant as being due from the appellant to the respondent in respect of the appeal, and the remaining portion of the said sum of 200i. shall be paid back to the appellant or his agent upon a proper receipt for the same being given to the Clerk of the Parliaments or clerk assistant: [Id.) 27. Payment op Costs out of Recognisance oe Bond. After taxation, personal demand and service of the certificate of costs must be made on the losing party : (Den. & Sc. 172.) If he absent himself a petition must be presented for substituted service on the agent : {Id.) After service personally of judgment and personal demand, in case of refusal, the recognisance may be ordered to be estreated and proceedings taken to enforce the bond, on petition, with two clear days' previous notice : (Id. 173.) After the estreat the respondent must petition the Lords of the Treasury for payment : {Id.) APPEARANCE. I. BY DEFENDANTS GENEEALLT. 1. Wheke Enteebd. 2. Time. 3. How Bntbbed. 4. EffJECT. n. BY INFANTS. m. BY MAEEIED WOMEN. IV. BY LUNATICS (so found) V. BY LUNATICS (not so found.) VI. BY PAETNEBSHIP FIRMS. 1. CoNSisTiNa OP Sbvbeal Persons. 2. CoNsisTiNO 01" One Peebon. VII. BY THIED PAETIES. 1. Undbe Cotintee-claim. 2. Undeb Notice. Vin. BY PAETIES ADDED. rx. IN ACTIONS FOE EECOVEEY OF LAND. X. TO OEIGmAL SUMMONS. XI. CONDITIONAL APPEAEANCE. XII. NOTICE OP APPEARANCE. 1. Genebal Ettle. 2. Wheee Entered aftee Time Limited. 3. Bt a Peeson not oeioinallt Defendant in Land Actions. 4. On Conditional Appeaeanob. Xm. SETTING ASIDE. 1. Fictitious Addeess. 2. ENTBBINGt without AuTHOEITT. XIV. BEEACH OF UNDBETAKING TO APPEAE. XV. WHEEE SUBSEQUENT PROCEEDINGS TAKE PLACE. XVI. DEFAULT. I. BT DEPENDAJSTTS GENERALLY. 1. "Wheee Enteebd. [If the writ is issued from the principal office.] The defendant shall enter his appearance in London (Order XII., r. 1), 82 Appearance. in the Writ, Appearance, and Judgment Department of the Central (O. LXa., Dee., 1879 ; O. XII., r. la, April, 1880.) [If the writ is issued out of a district registry.] (1.) If any defendant .... resides or carries on business within tl district, he shall appear in the district registry. (2.) If any defendant neither resides nor carries on business in the di triot, he may appear either in the district registry or in London: (( Xn., rr. 2, 3.) 2. Time. Where the service is within the jurisdiction, appearance must 1 entered within eight days after service of the writ; inclusive of the di of service : (see Form of Writ, App. A., pt. I., No. 1.) Where the service is out of the jurisdiction appearadce must 1 entered within the time directed by the order, which vrill appear iu tl body of the writ : (See Form of Writ, App. A., pt. I., No. 2 ; 0. X] r. 4.) A defendant may appear at any time before judgment (O. Xn r. 15) ; but if after the times limited he must give notice thereof : [Id., at post, XII.) • After judgment an appearance can only be entered by a defendant I: leave of the court on an application by hJTn for liberty to enter such a appearance, and attend the proceedings ; the defendant submitting to 1 bound by the judgment and proceedings already had : (Dan. 462.) The application is by petition of course, if the plaintiff will consen and, if not, by motion on notice or summons : {Id. 463, 139.) A copy of the order when passed and entered should be served on tl solicitors of the other defendants, and on the plaintiff's solicitor, whe made on petition : (Id. 140.) 3. How ESTTBEED. A defendant shall enter his appearance to a writ of summons by dehve: ing to the proper officer a memorandum in writing, dated on the day ( its delivery, and containing the name of the defendant's solicitor, ( stating that the defendant defends in person : (O. XII., r. 6 b, Apri 1880.) He shall at the same time deliver to the offi^cer a duplicate of the memi randnm, which the officer shall seal with the official seal, shovring the dai on which it is sealed, and then return to the person entering the appea; ance, and the duplicate memorandum so sealed shall be a certificate thi the appearance was entered on the day indicated by the seal : (Id.) If two or more defendants in the same action shall appear by the san solicitor and at the same time, the names of all the defendants so appearii shall be inserted in one memorandum : (O. XU., r. 13.) The soUcitor of a defendant appearing by a solicitor shaU state in sue memorandum his place of business, and, if the appearance is entered i the London office, a place, to be called his address for service, which sha not be more than three miles from Temple Bar, and if the appearajice entered in a district registry, a place, to be called his address for servic which shall be within the d&trict : (O. XII., r. 7.) A defendant appearing in person shall state in such memorandum h address, and, if the appearance is entered in the London office, a place, i be called his address for service, which shall not be more than three mill from Temple Bar, and, if the appearance is entered in a district registr a place, to be called his address for service, which shall be vrithin t) tdisrict : (O. XII., r. 8.) ■ If tjie memorandum does not contain such address, it shall not 1 Appearance. 83 received ; and, if any such address shall be illusory or fictitious, the appearance may be set aside : (O. XII., r. 9.) The memorandum of appearance shall be in the form [given in the rules of April, 1880,] with such variations as the circumstances of the case may require : (O. XII., r. 10, Sched. E 21, Rules, April, 1880.) Upon receipt of a memorandiun of appearance, the officer shall forthwith enter the appearance in the cause book : (O. XII., r. 11.) 4. Effect. The effect of entering an ordinary appearance is to waive any irregu- larity in the prior proceedings : (Dan. 459) ; and any objection to the jurisdiction. As to the irregularity, compare Re Pitcher : (L. Rep. 12 Ch. Div. 905.) The defendant to avoid waiver should enter a conditional appearance : (see^ost, XI.) * n. BT INFANTS. An infant appears in the usual way, but he cannot take any further step until a guardian has been appointed : (Ayck. 588.) Tn case of appearance after judgment the court must be satisfied that it is for the interest of the infant to adopt the proceedings : (Dan. 140.) Where no appearance has been entered to a writ of summons for a de- fendant who is an infant . . . the plaintifE may apply to the court or a judge for an order that some proper person be assigned guardian of such defendant, by whom he may appear and defend the action. But no such order shall be made unless it appears on the hearing of such application that the writ of summons was duly served, and that notice of such applica- tion was, after the expiration of the time allowed for appearance, and at least siK 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 writ of summons, 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, if 'any, of such infant, unless the court or judge at the time of hearing such application shall dispense with such last-mentioned service : (O. X!III., r. 1.) III. BT MARRIED WOMEN. In an action against husband and wife the husband should appear for both. If he fail to appear for the wife, an appearance may be entered for her by the plaintifP on proof of service of the writ on the husband alone : (Ayck. 597.) Married women may also, by the leave of the court or a judge, . . defend withdVit their husbands, ... on giving such security (if any) for costs as the court or a judge may require : (O. XVI., r. 8.) A married woman, co-defendant with her husband, cannot appear separately from him without first obtaining special leave : [Noel v. Noel, L. Rep. 13 Ch. Div. 510.) rV. BT LUNATICS (so found). In all cases in which lunatics . . [formerly] would have been liable to be sued as defendants in any action or suit . . . they may [in manner practised in the Court of Chancery] defend any action by their com- mittees : (o. xvni.) a 2 84 Appearance. If the lunatic has no committee, or the committee has an interest opposite to that of the lunatic, an order may be obtained for appointing another person as guardian for the purpose of defending, on motion or petition, as of course, supported by an affidavit as to the fitness of the proposed guardian, and that he has no interest adverse to the defendant : (Ayck. 601-2.) V. BY LUBTATICS (not so found). In all cases in which. . . . persons of unsound mind not so found by inquisition [formerly] would have been liable to be sued as defendants in any action or suit, they may [in manner practised in the Court of Chancery], defend any action by their. . . . guardians appointed for that purpose : (O. XVIII.) Where no appearance has been entered to a writ of summons for a defendant who is. ... a person of unsound mind not so found by inquisi- tion, the plaintiff may apply to the court or a judge for an order that some proper person be assigned guardian of such defendant, by whom he may appear and defend the action. But no such order shall be made unless it appears on the hearing of such application that the writ of summons was duly served, and that notice of such application was, after the expiration of the time allowed for appearance, 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 writ of summons : (O. XIII.,. r. 1.) VI. BT PARTNERSHIP FIRMS. 1. Consisting of Setbrai Persons. Where partners are sued in the name of their firm, they shall appear individually in their own names. But all subsequent proceedings shall, nevertheless, continue in the name of the firm : (O. XII., r. 12.) 2. Consisting of One Person. Where any person carrying on business in the name of a firm apparently consisting of more than one person shall be sued in the name of^the firm, he shall appear in his own n^ame ; but aU subsequent proceedings shsU, nevertheless, continue in the name of the firm : (0. XII., r. 12 a, Feb., 1876.) VII. BT THIRD PARTIES. 1. Under Counter-claim. When a counter-claim raises questions between the defendant and the plaintiff along with any other person or persons, such last-named person or persons must enter an appearance within eight days from the service of the defence and counter-claim on bim or them: (O. XXII.. rr. 5, 6: App. B. Ko.4) A form of memorandum of appearance is given in schedule "E 25 to the Rules of April, 1880. 2. Under Notice. If a person not a party to the action, who is served [with notice by a defendant of claim for relief over under Order XVL, r. 18] desires to dis- pute the plaJntifE's claim in the action as against the defendant on whose behalf the notice has been given, he must enter an appearance in the action within eight days from the service of the notice. In default of his so doing, he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise. Pro- vided always, that a person so served and failing to appear witMn the said Appearance. 85 period of eight days may apply to the court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the court or a judge shaU think fit : (0. XVI., r. 20.) A form of memorandum of appearance is given in schedule P '24 to the Kules of April, 1880. Vin. BY PARTIES ADDED. [A person, whether plaintifE or defendant, made a new party by an order under Order L., r. 4, and served therewith] shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons : (O. L., r. 5.) A form of memorandum of appearance is given in schedule E 23 to the Rules of April, 1880. Parties added in other cases must enter an appearance : (See O. XYI., rr. 15, 16.) [See Paeties.J IX. IN" ACTIONS FOR RECOVERY OP LAND. Any person not named as a defendant in a writ of summons for the recovery of land may by leave of the court or judge appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or his tenant : (O. XII., r. 18.) Leave was given to an equitable tenant for life, in possession, to defend, and to use the name of the trustee, who had been named defendant, an indemnity to him against costs being ordered : {JJongbov/rne v. Fisher, W. N. 1878, p. 28 ; 38 L. T. Rep. N. S. 216 ; 47 L. J. 379, Ch.; 26 W. R. 277.) Ally person appearing to defend an action for the recovery of land as landlord in respect of property whereof he is in possession only by his tenant, shall state in his appearance that he appears as landlord: (O. XII., r. 19.) Wiere a person not named as defendant in any writ of summons for the recovery of land has obtained leave of the court or judge to appear and defend, he shall enter an appearance according to the foregoing rules, intituled in the action against the party or parties named in the writ as defendant or defendants, and shall forthwith give notice of such appear- ance to the plaintifE 's solicitor, or to the plaintifE if he sues in person, and shall in aU subsequent proceedings be named as a party defendant to the action : (O. XII., r. 20.) Any person appearing to a writ of summons for the recovery of land shall be at liberty to Emit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance or in a notice intituled in the cause, and signed by him or his solicitor ; such notice to be served within four days after appearance ; and an appearance where the defence is not so limited shall be deemed an appearance to defend for the whole : (O. XII., r. 21.) The form of memorandum limiting defence is given in schedule B 22 to -the Rules of AprU, 1880. In case no appearance shall be entered in an action for the recovery of land, within the time limited for appearance, or if an appearance be •entered but the defence be limited to part only, the plaintiff shall be at liberty to enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which "the defence does not apply : (0. XIIL, r. 7.) The notice mentioned .... may be in the [following] form, with such variations as circumstances may require : (O. XII., r. 22) : — 86 Appearance. [Here put the letter and nvmber.'] " In the High Coiirt of Justice. ■ . . . Queen's Bench (or Chancery O.P., or, &e.) Division. Between A.B., plaintiff, and CD., and KF., defendants. The defendant CD. limits his defence to part only of the property mentioned in the writ in this action, that is to say, to the close called ' the Big field.' Tours, &c., G.H., Solicitor for the said defendant CD. To Mr. X.Y., plaintiff's solicitor." (App. A. pt. I., No. 7.) X. TO ORIGIlirAL SUMMONS. Where proceedings originate in chambers, the parties served shall, before they are heard in chambers, enter appearances in the [Central] Office, and give notice thereof : (C. O. 35, r. 9.) [See ADMiiifiSTBATioir ON Summons, Ohambbbs.] XI. CONDITIONAL APPEARANCE. A conditional appearance is necessary where the defendant wishes to avoid waiving irregularity in prior -proceedings, or objections as to the jurisdiction : (Dan. 459 ; Day 0. L. P. 40.) Leave must be obtained on separate motion, or on petition of course, the defendant consenting to submit to any process wMch may be issued against him thereon : (Dan. 460.) The appearance is entered at the entering seat in the registrar's ofice on production of the order : {Id.) XII. NOTICE OF APPEARANCE. 1. Geneeai, Rttle. A defendant shall, on the day on which he enters an appearance to a writ of summons, give notice of his appearance to the plaintiff's solicitor, or, if the plaintiff sues in person, to the plaintiff himself. The notice may be given either by notice in vrriting, served in the ordinary way at the address for service, or by prepaid letter directed to that address, and posted on the day of entering appearance in due course of post, and shall in either case be accompanied by the sealed duplicate memorandum [mentioned, sup. I., r. 3.] : (O. XII., r. 66, April, 1880.) A form of notice of entry of appearance is given in schedule B. 20 to the Rules of April, 1880. If no notice is given, the appearance is incomplete, and judgment in default may be signed : {Smith v. Dobbin, W. N. 1877, p. 20 ; 47 L. J. 65, Ex.) 2. Wheee entered aftbe Time Limited. If he appear at any time after the time limited for appearance he shall on the same day give notice thereof to the plaintiff's solicitor, or to the plaintiff himself if he sues in person, and he shall not, unless the court or a judge otherwise orders, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the writ : (O. XII., r. 15.) If after judgment, notice must be given the same day ■- (Dan. 140.) Appearance. 87 3. By a Person not okiginallt defendant in Land Actions. [See ante, IX.] 4. On Conditional Appeaeance. Notice must be given the same day : (Dan. 460.) Xni. SETTING ASIDE. 1. Fictitious Address. If any address [required to be inserted in the memorandum of appearance of a defendant appearing in person] shall be illusory or fictitious, the appearance may be set aside by the court or a judge, on the application of the plaintiff : (O. XII., r. 9.) [See ante-l 2. Entering without Authority. If a solicitor enter an appearance without authority, the appearance may be ordered to be discharged with costs to be paid by him : (Re Lloyd, L. Rep. 12 Ch. DIt. 449.) XrV". BREACH or UNDERTAKING TO APPEAR. A solicitor not entering an appearance in pursuance of his written undertaking so to do on behalf of any defendant shall be liable to an attachment : (O. Xn., r. 14.) XV. WHERE SUBSEQUENT PROCEEDINGS TA^E PLACE. If a sole defendant appears, or aU the defendants appear m the district registry, or if all the defendants who appear appear in the district registry and the others make default in appearance, then, subject to the power of removal hereinafter provided, the action shall proceed in the district registry : (O. XII., r. 4.) If the defendant appears, or any of the defendants appear, in London, the action shall proceed in London ; provided that if the court or a judge shall be satisfied that the defendant appearing in London is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such court or judge may order that the action may proceed in the district registry, notwithstanding such appearance in London : (O. X^II., r. 5.) [See District Registry.) XVL DEFAULT. In actions assigned by the 34th section of the Act to the Chancery Division .... and in aU other actions not by the rules [O. XIII.] otherwise specially provided for, in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintiiE of a proper affidavit of service the action may proceed as if such party had appeared : (O. XIII., r. 9.) These are — (1.) All causes and matters pending in the Court of Chancery at the commencement of [the Act of 1873] : (2.) All causes and matters to be commenced after the commencement . , of [the] Act, under any Act of Parliament, by which exclusive jurisdiction in respect to such causes or matters has been given to the Court of Chancery, or to any judges or judge thereof respectively, except appeals from County Courts : (3.) All cases and matters for any of the following purposes : The administration of the estates of deceased persons; The dissolution of partnerships or the taking of partnership or other accounts ; 88 A'pipearance, — Arbitration. The redemption or foreclosure of mortgages ; The raising of portions, or other charges on land ; The sale and distribution of the proceeds of property subject to any Uen or charge ; The execution of trusts, charitable or private ; The rectification, or setting aside, or cancellation 9f deeds or other written instruments ; The specific performance of contracts between vendors and purchasers of real estates, including contracts for leases ; The partition or sale of real estates ; The wardship of infants and the care of infants' estates. As to the other actions, see JtrDGMBNT and see Account. APPOINTMENT OF TRUSTEES. [See Tbustees.] APPORTIONMENT OF FUND. When a fund has to be apportioned, upon the return of the summons to proceed [see Ghaubees] a concise statement is directed to be brought in showing the fund, the charges thereon, the persons amongst, and the amounts in which it is divisible. If any costs are payable out of the fund they win be taxed by anticipation : (Dan. 1144.) The apportionment must be certified,, as the Chancery paymaster wiU not act upon an affidavit verifying an apportionment : (Seton, 4th ed. 840.) ARBITRATION. I. POEMEE PEACTICE UNAFPECTED. n. WHAT MATTEES MAT BE EEFEEEED. in. "WHO MAT EEPEE. IV. EEPEEENCE OE MATTER IN ACTION. 1. Bt Consent. 2. COJCPDIiBOItlliT. (a) Before Trial (i) At Trial V. MAKING SUBMISSION A RULE OP COURT. 1. In what Cases. 2. Or WHAT DrVTBION MADE A EuLB. 3. How Application made. 4. FiLtNo Submission. 5. Subsequent Motions. VI. APPOINTMENT OP ARBITRATOR OR UMPIRE. Vn. REVOKING PARTT'S APPOINTMENT OP SOLE AEBITEATOE. Vin. COMPELLING ATTENDANCE OF WITNESSES. IX. PROCEEDINGS BEFORE ARBITRATOR. X. RESTRAINING ARBITRATOR PROM ACTING. XI. ENLARGING TIME FOR MAKING AWARD. Xn. STATING SPECIAL CASE. Xm. DIRECTING STATEMENT OF CASE OR TEIAL OP ISSUE. Arbitration. 89 XIV. REMITTING AWAED. XV. SETTING ASIDE REFERENCE. XVI. SETTING ASIDE AWARD. 1. Gboitnds poe. 2. Pkocedure. (a) On Submi^on which cam/not ie made a Rule. (6) On Submission which has been or miO/y he mode a Rule. (c) On Compulsory Reference: (d) On Award under Lomds Clauses Act. XVn. SETTING ASIDE JUDGMENT ON AWARD. XVni. ENFORCING AWARD. 1. When Submission cannot be made a Rule. 2. Where Submission has been made a Rule. 3. On Judge's Obdebb. 4. On Gompulsobt Rbfeeence. 5. OiEDEEiNa Dbmyeet^^op Possession of Land. XrX. STATING LITIGATION IN CONTRAVENTION OE ARBITRA- TION. I. FORMER PRACTICE TTNATPBCTED. The former practice as to arbitration is unaffected by the Judicature Acts and Rules thereunder [Cruikshank v. Floating Swimming Baths Company, L. Rep. 1 0. P. Div. 260 ; 34 L. T. Rep. N. S. 733 ; 45 L. J. 684, C. P. ; 24 W. R. 644 ; per Brett, L. J., Longman r. Bast ; MelUn v. Monaco ; Pontifex v. Severn, L. Rep. 3 C. P. Div. 142 ; 47 L. J. 211, C. P. ; 26 W. R. 188 ; Lloyd v. Lewis, L. Rep. 2 Ex. Div. 7 ; 35 L. T. Rep.« N. S. 639 ; 46 L. J. 81, Ex. ; 25 W. R. 102) ; but each diTision of the High Coiirt now possesses the jurisdiction formerly possessed by the courts consolidated in the High Court : (J. A., 1873, ss. 3 and 16.) n. WHAT MATTERS MAT BE REFERRED. The following matters (besides matters referable under particular statutes) may be referred ; All matters in dispute concerning any personal chattel, or personal wrong ; Partition, settlement of boundaries, disputes as to waste, and questions of title as to land ; Pure questions of law ; Actions or other proceedings (at any stage) ; Damages ; Accounts, &c. ; The future conduct of parties with regard to the enjoyment of property : (Russell on Arbitration, 6th edit. 3-12.) in. WHO MAT REFER. Generally. ' Everyone capable of maJdng a disposition or release of his right can make a submission to an award : (Rnss. Arb. 14.) Infant. When an infant is a party to an action, the court will refer it to cham- bers to ascertain whether the reference would be for the infant's benefit, and win make an order in accordance with the certificate made : (Rus. Arb. 18.) Counsel. A reference by the consent of a counsel will generally be binding on the party he represents : (Russ. Arb. 26-28.) 90 Arbitration. Committee. A committee may, with the court's permission, bind the Ivinatic by a reference : (Buss. Arb. 31.) An inquiry m chambers will be directed as in the case of an iuf ant : (Id.) Statutory Powers. [See Lands Claitses Act, &c. And see Russell on Arbitration, Part I., c. 2.] IT. BEPERENOE OF MATTERS IN ACTION. 1. By Consent. By consent of the parties, the court will order the matters iu question in an action to be referred to arbitration : (Dan. 1905.) Forms of orders are given in Seton, 4th ed. 399, and a form is given in schedule H 22 to the Rules of April, 1880. in an action affecting a charity, the reference wiU. only be made with the consent of the Attorney- General : (Dan. 1906.) If the order is silent as to the costs of the reference, each party must pay his own costs : [Bullen v. King, 36 L. T. Rep. N. S. 732.) If the costs of the action and arbitration are included in the reference, the arbitrator may award them as between solicitor and client : {lA.) The award need not be made an order of court before proceeding on it : {Id.) As to making the award an order see post, V., 1. 2. OOMPTTLSOBILT. (a) Before Trial. If it be made to appear, at any time after the issuing of the writ, to the satisfaction of the court or a judge, upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account which cannot conveniently be tried in the ordinary way, it shall be lawful for such court or judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, or to an officer of the court, upon such terms as to costs and otherwise as such court or judge shall think reasonable : (C. L. P. A. 1854, s. 3, as amended by 21 & 22 Vict. c. 74, s. 5.) It was held at common law that this section applied only to applications before trial, and did not empower a judge trying a cause with a jury at Nisi Prius, to refer compulsonly : (Day, 246.) " All matters in difEerence " cannot be referred imder this section : (Day, 246.) It was the practice at common law, where the matter in dispute consisted in part only of mere account, to refer the whole compulsorily (Day, 246), but since the new practice came into operation, it has been laid down by three out of four judges in the Court of Appeal that the old practice was wrong, and that the part only which is matter of mere accoimt can be compulsorily referred : {Glow v. Harper, L. Rep. 3 Ex. Div. 198; 38 L. T. Rep. N. S. 269 ; 47 L. J. 398, Ex. ; 26 W. R. 364.) A form of order is pven in schedule H 33 to the Rules of April, 1880. The judge's discretion will not generally be interfered with : (Day, 247.) Under the practice at common law the referee was bound to inquire into all questions arising incidentally, though not strictly matters of account : {Id.) Where the order is silent as to costs, the arbitrator has no power over them {Id.), and after he has made his award, though he was empowered to certify by the order, he cannot certify that the action was fit to oe tried in a superior court : {Bedwell v. Wood, 36 L. T. Rep. N. S. 213.) Arbitration. 91 (6) At Trial. If upon the trial of any issue of fact by a judge under tMs Act it shall appear to the judge that the questions arising thereon involve matter of account which cannot conveniently be tried before him, it shall be lawful for him, at his discretion, to order that such matter of account be referred to an arbitrator appointed by the parties or to an oflB.cer of the court, upon such terms as to costs and otherwise as such judge shall thiak reasonable: (0. L. P. A. 1854, s. 6.) This section is confined to the trial of issues of fact by a judge under sect. 1 of the Act of 1854 : (Day, 250.) No application by either party is necessary to give the further jurisdic- tion to refer : (Id.) The award or certificate of such referee shall have the same effect as hereinbefore provided as to the award or certificate of a referee before trial ; and it shall be competent for the judge to proceed to try and dispose of any other matters in question* not referred, in like manner as if no reference had been made : (C. L. P. A. 1854, s. 6.) V. MAKING SUBMISSION A RULE OF COURT. 1. In What Oases. Every agreement or submission to arbitration by consent, whether by deed or instrument in writing not under seal, may be made a rule of any one [division of the High Court of Justice], on the application of any party thereto, unless such agreement or submission contain words pur- porting that the parties intend that it should not be made a rule of court ; (C. L. P. A. 1854, s. 17.) Where it appears from the submission that it is the intention of the parties that their respective cases shall be heard, and a decision arrived at upon the evidence which they have adduced tjefore the arbitrator, the matter is not less an arbitration because the ultimate object is to ascertain the value of the property or the amount of compensation to be paid : (Day, 0. L. P. 254.) An agreement in the award that it may be made a rule of court makes it an irrevocable instrument except with the leave of the court, but the Act of 1854 has not that effect, and after revocation the court refused to make the reference a rule : (3 & 4 Will. 4, c. 42, s. 39 ; Dan, 1902 ; Day, 256, 259 ; Scmdell v. Thompson, L. Rep. 1 Q. B. Div. 748 ; but see Moffat v. Cornelius, 39 L. T. Rep. N. S. 102 ; Christie v. Noble,W. N. 1880, p. 71.) A parol submission cannot be made a rule of coiirt under either 9 & 10 Will. 3, c. 15, or the C. L. P. A. 1854 : (Russ. Arb. 54 ; Day, C. L. P. 258.) As to making submissions rules of court Tinder 9 & 10 Will. 3, o. 15, see Rnss. Arb. 51 — 57. An order having been made with consent of all parties at the trial of an action that all matters in dispute be referred to arbitration, it is the award, and not the submission, that should be made a rule of court : {Jones v. Jones, 41 L. T. Rep. N. S. 651 ; 28 W. R. 133.) 2. Or WHAT Division made a Rule. If in any such agreement or submission it is provided that the same shall or may be made a rule of one in particular of the [divisions of the High Court], it may be made a rule of that [division] only : (C. L. P. A. 1854, 8. 17.) If when there is no such provision a case be stated in the award, for the opinion of one of the [divisions of the High Court], and such [division] be specified in the award, and the document authorising the reference have not, before the publication of the award to the parties been made a 92 Arbitration. rule of court, such document may be made a rule only of the [division] flpecified in the award : (0. L. P. A. 1854, s. 17.) 3. How Application made. • The application is by motion — on notice, unless the submission provides that either party may make it an order without notice : (Dan. 1902 ; Be Oglesby's Arbitration, W. N. 1879, p. 151.) The execution of the submission must be proved, unless the application is consented to : {Id.) When one person executes a submission for himself and another not Ms partner, his authority must be proved before the submission can be made a, rule of court : (Day, 259.) 4. Piling Submission. [In the Chancery Division] no order to make a submission to arbitration or an award a rule of court .... shall be passed, untU the original . . . submission to arbitration [or] award shall have been filed in the [Central] Office, and a note thereof made on the .... order by the [master] : (0. 0. 23,r. 23; J. A, 1879.) 5. Subsequent Motions. When in any case the document authorising the reference is or has been made a rule or order of any one of such Superior Courts, no other of such courts shall have any jurisdiction to entertain any motion respecting the arbitration or award : (C. L. P. A., 1854, s. 17.) When the submission has been made a rule of any one division of the High Court, any motion concerning it can be made to that division only : {Be Lomax's ArhitraUon, 28 W. R. 486 ; W. N. 1880, p. 51.) VI. APPOINTMENT OP ARBITRATOR OR UMPIRE. If in any case of arbitration the document authorising reference provide that the reference shall be to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator ; or if any appointed arbitrator refuse to act, or become incapable of acting, or die, and the terms of such document do not show that it was intended that such vacancy should not be supplied, and the parties do not concur in appointing a new one ; or if, where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not appoint an umpire or third arbitrator; or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting or die, and the terms of the document authorising the reference do not show tha^ it was intended that such a vacancy should not be supplied, and the parties or arbitrators respectively do not appoint a new one ; in every such instance any party may serve the remaining parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator respectively; and if within seven clear days after such notice shall have been served, no arbitrator, umpire, or third arbitrator be appointed, it shall be lawful for any judge [of the High Court of Justice] .... upon summons to be taken out by the party having served such notice as aforesaid, to appoint an arbitrator, umpire, or third arbitrator as the case may be, and such arbitrator, umpire, and such arbitrator respective^ shall have the like power to act in the reference and make an award as if he had been appointed by consent of aU parties : (C. L. P. A., 1854, s. 12.) A contract of sale, leaving the price to be determined by valuers and matters in difference to be determined by an umpire, is not vrithin the section : (Be Cox v. Sopwood, 6 W. R. 664, cited Day, 254.) The section applies to references under the Companies Clauses Act, tuid Arbitration. QS' the Compaiiies Act, 1862 (Day, 254), and under the Railway Companies Arbitration Act, 1859 : {Be Russell, &c., Company's Arbitration, 42 L. T. Rep. N. S. 234.) YII. REVOKING PARTY'S APPOINTMENT OP SOLE ARBITRATOR. When the reference [in any arbitration] is or is intended to be to twO' arbitrators, one appointed by each party, it shall be lawful for either party, in the case of the death, refusal to act, or incapacity of any arbitrator appointed by him, to substitute a new arbitrator, unless the document authorising the reference show that it was intended that the vacancy should not be supplied ; and if on such a reference one party fail to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party shall have appointed an arbitrator and shall have served the party so failing to appoint with notice in writing to make the appointment, the parliy who has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator in the reference, and an award made by him shall be binding on both parties as if the appointment had been by consent; provided, however, that the court or judge may revoke such appointment on such terms as shall seem just : (0. L. P. A., 1854, s. 13.) Yin. COMPELLING ATTENDANCE OP WITNESSES. The court making the order of reference or mentioned in the agreement that the submission may be made a rule, or any judge may, by rule or order, command the attendance and examination of any person to be named, or the production of any documents mentioned in the rule or order : (3 &4 WiU. 4, c. 42, s. 40.) The application must state what county the witness resides in, or satisfy the court that such person cannot be found : {Id.) The application may be by motion in court on aflSdavit, or to a judge at chambers on an affidavit or memorandum signed by the solicitor of ths' party who requires the evidence : (Russ. Arb. 173.) The affidavit or memorandum must set forth the existence of the reference, either shortly or by verifying a copy of the submission, the- name of tie witness, the county of residence (see siip.), or facts to satisfy the court. If a document is required it should be described as in a suhpaena duces tecum. It should also be stated that the attendance or production is material. There should be annexed to the affidavit, or verified by it, a copy of the written appointment of the arbitrator, or the effect of the appointment should be concisely stated in the affida,vit or memorandum : {Id.) The order is absolute in the first instance when the order of reference has been made a rule of court : {Id.) Where the submission has been made a rule of the Chancery Division under the Act of 1854, the order is- as of course : (Russ. Arb. 174.) A form of order is given in schedule H 23 to the Rules of April, 1880. A copy of the order must be served with or before service of a copy of an appointment of the time and place of attendance, signed by one at least of the arbitrators, or by the umpire, a reasonable time before the da,y of attendance, the originals being shown, and a sum for expenses and loss of time being paid or tendered : (3 & 4 Will. 4, c. 42, s. 40 ; Russ. Arb. I7»-4.) A witness not attending after service of the order and appomtment is. g^ty of contempt of court : {Id.) 94 Arbitration. The witness is not bound to attend at more than two consecutive da to be named in the order : (Id.) Notwithstanding the remarks in Russell on Arbitration (p. 174), tl provisions of 3 & 4 WiU. 4, c. 42, apply to references in which tl submission has been a rule of court under 9 & 10 WiU. 3, c. 15, or und the Act of 1854, and to references under a rule or order of the Chancei Division in an action: (see J. A., 1873, ss. 3 and 16.) The sectic applies only to witnesses, but the court possesses authority over parties a submission made a rule of court under the parties' own agreement in tl submission to produce all docximents : (Euss. Arb. 175.) IX. PROCEEDINGS BEFORE ARBITRATOR. The proceedings upon any snch arbitration as aforesaid shall, eioe] otherwise directed hereby, or by the submission or document anthorisii the reference, be conducted in like manner, and subject to the same ruli and enactments, as to the power of the arbitrator and of the court, tl attendance of witnesses, the production of documents, enforcing or settii aside the award and otherwise, as upon a reference made by consent und( a rule of court or judge's order : (0. L. P. A. 1854, s. 7.) This section extends to both voluntary and compulsory arbitratiom (Russ. Arb. 176 ; Day, 250.) It does not interfere with the power of tl parties to revoke the submission : (Day, 250.) X. RESTRAINING ARBITRATOR PROM ACTING. When the court is of opinion that under the circumstances it is m probable that an arbitrator wiU. faithfully and honestly discharge his dut it may, at the instance of one of the parties to the arbitration, restraj him by injunction from acting : {Beddow v. Beddow, 47 L. J. 588, Ch 26 W. R. 570.) XI. ENLARGING TIME POR MAKING AWARD. The arbitrator acting under any document or compulsory order ( reference .... or under any order referring the award back, shall mat his award under his hand, and (unless such document or order respectivel shall contain a difEerent limit of time) within three months after he sha have been appointed, and shall have entered on the reference, or shall hai been called upon to act by a notice ia vmting from any party, but tl parties may, by consent in writing, enlarge the term for makinsr the award (0. L. P. A., 1854, s. 15.) " ^ ^ The_ three months are reckoned from the time the arbitrator holds k first sitting either with both parties before him, or under a peremptoi appointment enabling him to proceed ea! jjorie : (Day, 256.) ., It shall be lawful for the .... court of which such submission, docT ment, or order is or maybe made a rule or order, or for any judge theteo for good cause to be stated in the rule or order for enlargement, from tin to time to enlarge the term for making the awards ; and if no period 1: stated for the enlargement in such consent or order for enlargement, shaU be deemed to be an enlargement for one month : (C. L. P. A, IBS' s. 15.) The application is by motion, on notice, or by summons : (Dim. 1904 Seton, 4th ed. 402.) The power is discretionary, and wUl not be exercised unless both partii win afterwards be on an equal footing : (Day, 257.) The court may enlarge the time beyond that to which the arbitrator hs power to, and had enlarged it ; and may enlarge it after the award has bee made : (Seton, 402.) Arbitration. 95 ^he power may be exercised after the three months, and even after award made : (Day, 257.') The section does not apply to compulsory references under the Public Health Act, 1848 : {Id.) XII. STATING SPECIAL CASE. It shall be lawful for the arbitrator upon any compulsory reference under this Act, or upon any reference by consent of parties where the submission is or may be made a rule or order of any of the [divisions of the High Court], if he shall think fit, and if it is not provided to the contrary, to state his award, as to the whole or any part thereof, in the form of a special case for the opinion of the court, and when an action is referred, judgment, if so ordered, may be entered according to the opinion of the court : (0. L. P. A., 1854, s. 5.) This section applies practically to all references : (Day, 249.) The award will be set down as k special case for hearing on application by motion on notice : (Dan. 1904.) The form of order to set down is given iu Seton, 4th ed. 402.) An umpire under the Lands Clauses Act may state his award in the form of a special case (Rhodes v. Airedale Convmissioners, L. Rep. 1 0. P. Div. 402), and there is an appeal from the High Court's decision thereon to the Court of Appeal : [Bidder v. North Staffordshire Railway Company, L. Rep. 4 Q. B. Div. 412.) Where on an order oiE reference, made by consent before the coming into operation of the present practice, it was ordered that neither party should bring any writ of error concerning the matters referred, and the arbitrator made an award dependent on the opinion of the court on a special case stated by him on which judgment was given, it was held that no appeal lay therefrom : {Jones v. Victoria Graving Docks Company, L. Rep. 2 Q. B. Div. 314.) Xm. DIRECTING STATEMENT OF CASE OR TRIAL OP ISSUE. If it shall appear to the court or a judge that the allowance or disallow- ance of any particular item or items in such account (see sitp. IV., 2a), depends upon a question of law fit to be decided by the court, or upon a question of fact fit to be decided by a jury, or by a judge upon the consent of both parties as ... . provided [in the Act of 1854], it shall be lawful for such court or judge to direct a case to be stated, or an issue or issues to be tried ; and the decision of the court upon such case, and the finding of the jury or judge upon such issue or issues, shall be taken and acted upon by the arbitrator as conclusive : (C. L. P. A., 1854, s. 4.) XIV. REMITTING AWARD. An arbitrator having signed his award is functus officio, and cannot alter the slightest error in it, though it has arisen from the mistake of the clerk in copying the draft : {Mordue v. Palmer, L. Rep. 6 Ch. App. 22 ; Day, 250.) The proper course is to obtain an order to refer the award back to the arbitrator : {MordMC v. Palmer, sup.) In any case where reference shall be made to arbitration as aforesaid, the court or a judge shall have power at any time and from time to time to remit the matters referred, or any or either of them, to the reconsidera- tion and redetermination of the said arbitrator, upon such terms as to costs and otherwise as to the said court or judge may seem proper : (0. L. P. A. 1854, 8. 8.) 96 Arbitration. The section applies to compulsory references, and references authorised by a submission containing a clause that it may be made a rule, and not expressly excluding such power : {Re Morris, 6 £. & B. 383.) The object of this section is to enable the court to send the award back for the correction of errors which would otherwise vitiate it : (Dan. 1906 ; and see Seton, 404.) An arbitrator's evidence in explanation af his award wiU be admitted on a motion to remit it back for mistake : (Seton, 405.) The power to remit is not confined to cases where the award might be set aside, and the power has been exercised where the award has been valid : (See Russ. Arb. 463-4.) Unless the court thinks the arbitrator can no longer be trusted, it will remit the award to him, though he has miscarried in the conduct of the reference : (Russ. Arb. 464.) When an award is good on its face, the court wiU not generally refer it back, nor will it order that the arbitrator shall state a case when he has declined to do so : (Russ. Arb. 465.) The general principle is that the arbitrator is final judge, both of law and fact, and this rule also applies to compulsory references : (Id.) When the arbitrator states that the award as framed, though unim- peachable at law, does not carry out his intentions, the court mU some- times remit it for amendment : {Id. ; and see cases cited in Russ. Arb. p. 466.) The authorities are conflicting as to whether the application to remt must be made within the same time as an application to set aside the award : (Russ. Arb. 467 ; Day, 251.) Probably a longer period will only be allowed in exceptional cases for the furtherance of the ends of justice, when the delay is explained by the circiunstances : (Russ. Arb. 467.) The court can refer back more than once : (Russ. Arb. 468.) All the arbitrators' powers, save as affected by the order referring back, are revived : (Russ. Arb. 469.) Unless such order limit some time, the arbitrators' revived authority lasts for three months from his entering on the matters of the reference, or his being called on by notice in writing by any party to act in it. But the time may be enlarged by the court or the parties : (Id.) XV. SETTESTG ASIDE REFERENCE. If a submission has been obtained by fraud or drawn up by mistake, the court on motion wiU set it aside. But it will not set aside an award on the grouitd of fraud or mistake in the submission : (Russ. Arb. 78.) The court wiU not set aside an agreement of reference as obtained by undue pressure, if the party objecting has attended the reference, and taken the chance of an award in his favour : {Id.) _ A compulsory reference may be set aside, if it appear that there is no dispute as to the amount, but only as to liability : {Id.) XVI. SETTING ASIDE AWARD. 1. Geouitds pok. (o) Corrupt or Irregula/r CondMci of Arbitrator. The award cannot in any arbitration be impeached because it is erroneous in law or fact where the alleged error does not appear on the face of the award : (Russ. Arb. 661.) . Arbitrator's corrupt or partial conduct, or secret interest in the subject-, matter, is ground for setting aside : {Id.) Also refusing time to get counsel when the other side unexpectsdljf. Arbitration. 97 appears by counsel; receiving affidavits instead of viva voce evidence when directed to examine on oath ; maMng award without hearing all the evidence (Id.) ; proceeding ex parte without sufficient cause (Buss. Arb. 662) ; appointing umpire by lot, instead of choice, unless by consent (Buss. Arb. 663) ; umpire refusing to rehear evidence : (Id. ; see Bottomley v. Ambl&r, W. N. 187V, pp. 245, ^72.) (6) Mistake in Law. This is a ground for setting aside only where the mistake is admitted by the arbitrator : (Buss. Arb. 302, 663.) (o) Nullity of Award. The court will only interfere when something may be done under the award which renders interference necessary, as when the award orders a verdict to be entered : (Buss. Arb. 664.) (d) Award not Final. This is a ground for setting a^de : as if without special power the arbitrator mate two awards, each deciding part of the matter referred, and not one entire aiward on all together (BnSs. Arb. 665) ; or if the award fail to decide on all the matters referred, whether the omission appear on the face of the award or by other evidence, but not if the question undecided were not notified to the arbitrator as a matter in difference, or the parties showed byltheir conduct that they did not mean him to decide it {Id). No objection attaches to delegating to the master the taxation of the costs, or appointing a stranger to perform a mere ministerial act : (Buss. Arb. 665, and see pp. 666-7.) (e) Uncertainty of Award. This is a good ground, as where it is doubtful whether the award has decided the questions referred, or how it has determined them, or when it leaves a disputed amount of money, other than costs, unascertained : (see Buss. Arb. 667-8.) (/) In Excess of Authority. This is a good ground, unless the bad part is clearly separable from the rest of the award, and does not affect the good part : (Buss. Arb. 668.) An award is open to objection, if the arbitrator has awarded on a matter not submitted to him, or as to costs without authority, or has improperly directed costs to be taxed as between solicitor and client, &c. . (See Buss. Arb. 668, 669.) (jr) Fraudulent Concealment or Deception. If either party be guilty of fraudulent concealment of matters which he ought to have disclosed, or vrilf uUy mislead or deceive the arbitrator, the award may be set aside : (Buss. Arb. 669.) 2. Peocedubb. (a) On Submission which cannot he made a Bule. Awards on submissions which could not be made rules of court could not be set aside by a court of law, however gross the misconduct or corruption of the arbitrator : the only remedy was by bill in equity : (Buss. Arb., citing Veale v. Warner, 1 Saund. 327, c. note ; Ctreenhill v. Church, 3 Sep. in Ohanc. 89, p. 49 ; 2 Yem. 100, pi. 95 ; Cavendish y. , 1 Gas. in Oh. 279.) Every division of the High Court of Justice has now juris- diction in an action to set aside the award (J. A., 1873, ss. 3 and 16), or to give effect to an equitable defence based on the illegality or injustice of the proceedings : (see Equitable Bules.) (6) On Submission which has been or may he made a Rale. Any arbitration or umpirage procured by corruption or undue means [is] void and of none effect, and may be set aside by ... . the court H 98 Arbitration. ■where the rule is made for submission to such arbitration or umpire : (g&lOWiU. 3, C.15, 8. 3.). The award may also be set aside for mistake or error, if admitted by the arbitrator : (Buss. Arb. 671, 672.) The submission must be made a rule of court, if it is not one already, before application to set aside : (Russ. Ark 676.) The application to set aside must be made before the day which, if terms had not been abolished, would have been the last day of the next term after such arbitration or umpirage has been made and published to the parties: (9 & 10 Will. 3, c. 15, s. 2; Christ's College, Brecknock, y. Martin, L. Bep. 3 Q. B. Div, 16 ; 36 L. T. Bep. N. S. 637 ; 26 W. B. 637.) The publishing required by the statute is to the parties by their haying notice that the award has been made, and the time runs from the date of the notice, though the party has not till afterwards intimation of the contents of the award, or has not been served with a copy of the award, and, apparently, although the notice expresses that the award is ready to be delivered on payment of the arbitrator's charges, although they are excessive : (see cases in Buss. Arb. 651-2.) The application can only be entertaiaed by the division of which the submissioii is a rule : {Be Lomax's Arbitration, 28 W. B. 485 ; W. N. 1880, p. 61.) It is sufficient if the notice of motion be given within the time : (Seton, 405.) The application is by motion, of which notice must be given to the other parties and the arbitrators : (Dan., 1903.) The arbitrators' evidence will be admitted on the motion (Seton, 405) nnless he is a barrister : (Buss. Arb., 677.) The affidavits must be entitled, " In the matter," &c. : (Buss. Arb., 673.) A judge in chambers has no power to set aside the award, thonghin vacation he may stay all proceedings under the award till the next sittings, to allow time for an appHcation to avoid it to be made to the court: (Buss. Arb., 648.) The affidavits must be filed whether the rule nisi is granted or refused : (Buss. Arb., 678.) Where a rule to show cause is obtained to set aside an award .... the several objections thereto intended to be insisted upon at the time of moving to make such rule absolute shall be stated in the rule to show cause : (R. G. H. T., 1863, r. 169.) A party is generally confined to the grounds stated in the rule : (Buss. Arb. 681-4.) (c) On Conupvilsory Reference. All applications to set aside any award made on a compulsory reference under [the 0. L. P. A. 1854] shall and may be made within the first seven days of [what, if terms had not been abolished would have been] the term next following the publication of the award to the parties, whether made in vacation or term ; and if no such application is made, or if no rule is granted thereon, or if any rule granted thereon is afterwards discharged, such award shall be final between the parties : (0. L. P. A. 1854, s. 9 ; Christ's College, Brecknock v. Martin, sitp.) It is not necessary to makfe the judge's order a rule of court before applying to set aside : (Day, 251 ; Russ. Arb., 676.) The application is by motion, supported by affidavits, and a rule nisi is first granted, as stated sup. {d) Award wnder Lands Clauses Act. When a submission is made a rule of court under, sect. 36 of the Lands Arbitration. 99 Clauses Act, the time for applying to set it aside is that limited by 9 & 10 WUl. 3, c. 5 : {Harper v. Cfreat Eastern Railway Company, L. Rep. 20 Eq. 39 ; see sup.) (6.) XYII. SETTING ASIDE JUDGMENT ON AWARD. If the plaintiff, pnrstiant to the award, enter np a verdict and sign judgment in the cause referred, the defendant may, within the time limited for setting aside award (see sup. XVI.), move to set aside both judgment and award, if the latter be defective : (Russ. Arb., 692.) Although the time for setting aside the award has long elapsed, the party is at liberty, as soon as judgment has been signed, to move to set the latter aside, whether execution has been issued or executed, and whether a motion has been made to set aside the award or a rule therefor discharged : (see Russ. Arb., 692-5.) XYHI. ENFORCING AWARD. 1. When Submission cannot be made a Rule. In this case the award can only be enforced by action : (Ch. Arch., 13th ed., 1865.) 2. Where Sttbmission has been made a Ritle. Any party refusing or neglecting to execute the award is guilty of a contempt of the court of which the submission is a rule : (9 the suit or proceeding may have a copy thereof, or of any part or por- tion thereof, upon payment of the proper fee : (0. O. 36, r. 31; J. A.„ 1879.) (d) Before Examiner or other Person. [See Evidence.] 3. Closing Evidence. When further evidence is to be adduced as to claim, a time may be- named within which the evidence on both sides is to be adduced : (0. O.. 35, r. 40.) In other cases also a time may be limited : (Dan. 1064.) If no time has been limited an order therefor may be obtained on summons : {Id.) XIX. PRODUCTION OF DOCUMENTS. Documents may be ordered, on summons, to be produced in chambers by any party (O. XXXI., r. 11) ; or by any claimant coming in under a judg- ment: (Dan. 1065.) The application for a party to produce document may be made by a claimant : (Id.) The course of procedure in use as to the production of documents ordered to be produced before the hearing of a cause is applied to the production of documents ordered to be produced after the hearing of any cause or matter : (C. O. 42, r. 4.) Where any deedjs or other documents are ordered to be left or deposited, whether for safe custody or for the purpose of any inquiry in chambers or otherwise, the same are to be left or deposited in the [Central] Office, and are to be subject to such directions as may be given for the production thereof: (C. O. 42, r. 3 ; J. A., 1879.) Where the documents are required to be produced at chambers the master of the Supreme Court will, on a written request, produce them : (Dan. 1065 ; J. A., 1879.) XX. SCANDALOUS AND UNNECESSARY PROCEEDINGS. If any party wishes to complain of any matter introduced into any statement, affidavit, or other proceeding before the judge in chambers, on the groimd that it is scandalous, he [may] take out a summons for the judge to examine such matter, and the judge may cause any such matter which he [deems] to be scandalous to be expunged : (C. 0. 35, r. 60.) The .... judge may'. . . . upon any application or procedure in any cause or matter in ... . chambers, and whether the same is objected to or not, direct the costs of any pleading, affidavit, evidence, notice to cross-examine witnesses, account, statement, or other proceeding, or any part thereof, which is improper, unnecessary, or contains unnecessary matter, or is of unnecessary length, to be disallowed, or may direct the taxing officer to look into the same and to disallow the costs thereof, or of such part thereof, as he shall think to be improper, unnecessary, or to contain unnecessary matter, or to be of unnecessary length ; and in such case the party whose costs are so disallowed shall pay the costs occasioned to the other parties by such unnecessary proceeding, matter, or length, and m any case where such question shall not have been raised before and dealt with by the . . . judge, the taxing officer may look into the same (and as to evidence, although the same may be entered as read in any decree or order) for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so : (Add. R. Ang> 1875, Sp. All., r. 18 ; and see Costs.) 140 Chambers. XXI. CONDUCT OF PROCEEDINGS. Applications relating to the conduct of proceedings are to be made at «hambers : (see sv^., Y.) The prosecution in chambers of a judgment generally devolves upon the plaintiff (Dan. 1082) ; of an interlocutory order generally upon the party , obtaining it {Id., 1083) ; of proceedings when there are concurrent suits, on the plaintijBE in the first suit in point of time : (Id.) If the court does not consider the person obtaining the order entitled to the conduct, it will be given to the defendants or respondents having the greatest interest : (Id. ; C. O. 36, r. 23.) Where proceedings are necessary against persons who have had dealings with the testator whose estate is being administered, the executor has l£e right to the conduct of the proceedings in preference to the beneficiaries, unless misconduct on the part of the executor is clearly proved, or it is made out that the course of justice will be impeded thereby : {Longhourne J. Fisher, 40 L. T. Rep. N. S. 124; 27 W. R. 405.) As to change of conduct of proceeding in case of delay : (see sv/p., VIII.) If the party having conduct of the proceedings is guilty of mis- conduct the conduct will be committed to some of the other parties : (Dan. 1083.) The party to whom the conduct is transferred stands in the place of the party fiom whom it is transferred, and is entitled to inspect and take copies of all papers in the suit in the possession of the latter or his «oEcitor : (Dan. 1084.) XXn. APPOINTMENTS. A summons is not necessary in the case of every fresh step in chambers. Some steps may be taken by obtaining an appointment from ■the chief clerk for proceeding with a matter at a future day. An entry must be made in the Summons and Appointment Book when -the appointment is obtained (see swp. XI.) ; and where other parties' interests are affected, notice to them or their solicitors must be given. XXIII. ORDERS MADE IN CHAMBERS. 1. Deawing Up. The orders made by the [judges] when sitting in chambers [are] ordinarily drawn up there by their respective clerks [but] each of such judges [may] direct any of such orders to be drawn up by the registrar of -the .... court in like manner as orders made by a judge . . in open •court are drawn up, for which purpose the registrars of the said court .... [are] when required [to] attend the hudges] when sitting at chambers : (15 & 16 Vict. c. 80, s. 14.) In practice, simple orders are drawn up and authenticated by the chief clerk's signature : (Dan. 1066.) Other orders are drawn up by the registrar that day in court on the chief clerk's minute endorsed on the summons beingr sent to him bv the chief clerk: (Jd!.) '' 2. Entry. All orders made in chambers, and drawn up by the chief clerk or registrar, shall be entered in the same manner and in the same office as orders made in open court are entered : (C. O. 35, r. 32.) 3. Effect. All orders .... made .... at chambers .... have the force and offect of orders of the court : (15 & 16 Vict. c. 80, s. IS.) Chambers. 141 Orders may be enforced like judgments : (O. XLII., r. 20.) [See Execution.] If a direction, without formal order, be disobeyed, an order to perform the act within a limited time after service, will be drawn up by the registrar on receipt of a minute signed by the chief clerk : (Dan. 1069.) The minute will be issued without summons if the disobedient party was present on the direction being given : {Id.) 4. Appeal. [See Appeai.] XXIV. WORKING OUT JUDGMEKT OR ORDER. In drawing up judgments or orders to be left at chambers, the solici- tors are to take care that every account, inqidry, sale, direction to appoint receiver, and other direction to be answered at chambers is numbered con- secutively, and that the other directions are not numbered : (Oh. Reg. Aug. 1857, r. 4; O. XV., r. 1. [See Accottnt.] Jja aU cases of proceedings in chambers under any [judgment] or order, the party prosecuting the same shall leave a copy of such [judgment] or order at the judge's chambers, and shall certify the same to be a true copy of the decree or order as passed and entered : (0. O. 35, r. 16.) A judgment or order directing accounts or inquiries to be taken or made must be brought into chambers : (0. 0. 35, r. 16.) [See Account, IX., 4.] A print of the statement of claim should be left at chambers with the judgment or order : (See Oh. Reg. Aug. 1857, r. 5.) A summons to proceed is then issued and served : [See Account, IX., 6.] The summons must be served upon all parties, including those who have not appeared (unless dispensed with) ; but not persons served with notice of 3udgment, unless they have obtained leave to attend the pro- ceedings : (Dan. 1085.) Upon return of the summons the judge gives his directions. [See Account, IX., 6.] Where, upon the hearing of the summons to proceed, it appears to the judge that by reason As to the meaning of " special resolution " and " capital," see sup. (1) Ko such special resolution as aforesaid shall take effect until a memorandum, showing the particulars required by law in the case of a reduction of capital by order of the court, shall have been produced to and registered by the registrar of joint stock companies : (G. A., 1880, s. 4.) 2. When Words " and Redttcbd " Added. The company shall, after the date of the passing of any special resolu- tion for reducing its capital; add to its name, until such date as the court may fix, the words " and reduced," as the last words in its name, and those words shall, untU such date, be deemed to be part of the name of company within the meaning of the [Companies Act, 1862] : (G. A., 1867, s. 10.) .... Where the reduction of the capital of a company does not involve either the diminution of any liability in respect of unpaid capital or the payment to any shareholder of any paid-up capital, it shall not be neces- sary, before the presentation of the petition for confirming the reduction, to add, and the court may, if it think expedient so to do, dispense altogether with the addition of , the words " and reduced " . . . . : (0. A., 1877, 8. 4.) It is unnecessary to add the words in the case of reduction under the Companies Act, 1880: (see swp. (a) (2).) 3. Petition to Court to Confirm Reduction. (a) Where Necessary. A company which has passed a special resolution for reducing its capital [under the Act of 1867] may apply to the court by petition for an order confirming the reduction : (C. A., 1867, s. 11.) (6) Title. Every petition .... and all notices, affidavits, and other proceedings under such petition shall be intituled in the matter of " The Companies Act, 1867," and of the Company in question : (Gr. O., 1868, s. 2.) (c) Advertisement. Notice of the presentation of the petition shall be published at such times, and in such newspapers as the judge shall direct, so that the first insertion of such notice be made not less than one calendar month before the day of the date fixed [with reference to which the list of creditors is to be made out]: (G. O., 1868, r. 5; see post, 4, (c).) For the form of notice, see G. O., 1868, sched., form No. 2. (d) Placing m List. No ... . petition .... shall be placed in the list of petitions by the secretary of the Lord Chancellor, or of the Master of the Rolls, as the case may be, until after the expiration of eight clear days from the filing of [the chief clerk's certificate as to creditors] : (G. O. 1868, r. 3 ; see post, 12.) 4. Preparing List ov Creditors. (a) Summons for Directions. When any .... petition .... has been presented, application may be made, ex paa-te by summons in chambers, to the judge to whose court 174 Companies. the petition is attached, for directions as to the proceedings to be taken for settung the list of creditors entitled to object to the proposed redaction : {Q. 0. 1868, r. 4.) (6) Creditors entitled to Object to Reduction. Where a company proposes to reduce its capital, every creditor of the company who at the date fixed by the court is entitled to any debt or claim which, if that date were the commencement of the winding-up of the company, would be amenable in proof against the company, shall be «ntitled to object to the proposed reduction, and be entered in the list of creditors who are so entitled to object : (0. A., 1867, s. 13 ; and see Winding-tip.) Where the reduction of the capital of a company does not involve either the diminution of any liability in respect of unpaid capital, or the payment to any shareholder of any paid-up capital, the creditors of the company shall not, unless the court otherwise direct, be entitled to object or required to consent to the reduction : (0. A., 1877, s. 4.) (c) Fixing Bate as to which List made. The judge may .... fix the date with reference to which the list of [creditors entitled to object to the proposed reduction] is to be made out ; and may, either at the same time or afterwards, as he shall think fit, give .... directions [respecting the advertisement of the petition, and the affidavit as to creditors : (G-. O. 1868, r. 4 ; and see post.) For the Form of Order, see G. O. 1868, sched., form No. 1. (d) Verification. The company shall, within such time as the judge shall direct, file in the [Central Office] an affidavit made by some officer or officers of the com- pany competent to make the same, verifying a list containing the names and addresses of the creditors of the company at the date fixed [with reference to which the list of the creditors is to be made out], and the amounts due to them respectively : (G. O. 1868, r. 6.) The person' making [the] affidavit [verifying the list of creditors] shall state therein his belief that such list is correct, and that there was not at the date .... fixed [with reference to which the list is made out] any debt or claim which, if that date were the commencement of the winding- up of the company, would be admissable in proof against the company, except the debt set forth in such list, and shall state nis means of know- ledge of the matters deposed to in such affidavit : (G-. O. 1868, r. 7 ; and see Winding-up.) For the form of affidavit, see G. O. 1868, sched., form No. 3. (e) Copies of, for Inspection. Copies of [the] list containing the names and addresses of the creditors, and the total amount due to them, but omitting the amounts due to them respectively, or (as the judge shall think fit) complete copies of such list, shall be kept at the registered office of the company and at the offices of their solicitors and London agents (if any), and any person desirous of inspecting the same may at any time during the ordinary hours of business, inspect aiid take extracts from the same on payment of the sum of one shilling : (G. 0. 1868, r. 8; and Order of March 2, 1869.) (/) Leaving, with Affidavit, at Chambers. [The company shall, within such time as the judge shall direct], leave the .... Est [of creditors] and an office eopy of [the] affidavit [verify- ing the same] at the chambers of the judge : (G. O. 1863, r. 6.) 5. Notice to Ceeditoes in List. The company shall within seven days after the filing of [the] affidavit Companies. 175 aUi Verifying the list of creditors], or such further time as the judge may Mow, send to each creditor whose name is entered in the said list a notice stating the amount of the proposed reduction of capital and the amount of the debt for which such creditor is entered in the said list, and the time (such time to be fixed by the judge) within which, if he claims to be a creditor for a larger amount, he must send in his name and address, and the particulars of his debt or claim, and the name and address of his soli- citor (if any) to the solicitor of the company, and such notice shall be sent through the post in a prepaid letter addressed to each creditor at his last known address or place of abode : (G-. O. 1868, r. 9.) For the form of notice, see G. O. 1868, sched., form No. 4. Service of the formal notices on creditors residing abroad wiU, in a proper case, be dispensed with, on the company bring^g into court the amounts set opposite the names of such 'creditors on the list, or gi^ving them notice that this has beeiv done : (Buckley, 3rd edit. 438.) 6. Adveetisement of List. Notice of the list of creditors shall, after the filing of the affidavit, be published at such times, and in such newspapers, as the judge shall direct. Every such notice shall state the amount of the proposed reduc- tion of capital, and the places where the aforesaid list of creditors may be inspected, and the time withia which creditors of the company, who are not entered on the said list, and are desirous of being entered therein, must send in their names and addresses, and the paHicuIars of their claims, and the names and addresses of their solicitors (if any) to the solicitor of the company : (G. O. 1868, r. 10.) For the form of notice, see G. 0. 1868, Sched. Form 6. 7. Company's Aitidavit as to Claims. The company shall within such time as the judge shall direct, file in the [Central OflSce] an affidavit made by the person to whom the particu- lars of debts or claJms are by [the] notices .... required to be sent in stating the result of such notices respectively, and verifying a list con- taining the names and addresses of the persons (if any) who shall have sent in the particulars of their debts or claims in pursuance of such notices respectively, and the amounts of such debts or claims, and some competent officer of the company shall give in such affidavit, and shall in such list distinguish which (if any) of such debts or claims are whoUy, or as to any and what part thereof, disputed by the company : (G. O. 1868, r. 11.) For the form of affidavit, see G. 0. 1868, sehed., form No. 6. [The list of creditors and an office copy of the affidavit verifying such list and made by the person to whom the particulars of debts and claims are by the notices required to be sent in] shall, within such time as the judge shall direct, be left at the chambers of the judge : (G. O. 1868, r. 11.) 8. Settlement of List. The court shall settle a list of ... . creditors [entitled to object], and for that purpose shall ascertain as far as possible, without requiring an application fcom any creditor, the names of such creditors, and the nature and amount of their debts or claims : (C. A., 1867, s. 13.) 9. Notices to Cheditobs not in List. [The court] may publish notices fixing a certain day or days within which creditors of the company, who are not entered on the list [of creditors entitled to object], are to claim to be so entered or to be excluded from the right of objecting to the proposed reduction : (G. A. 1867, s. 13.) 176 Gompamea. 10. DisPENSiNO WITH Obeditoe's Consent. Where a creditor whose name is entered on the list of creditors,, and whose debt or claim is not discharged or determined, does not consent to the proposed reduction, the court may (if it think fit) dispense with such consent on the company securing the payment of the debt or claim of such creditor by setting apart and appropriating in snch manner as the court may divect, a sum of such amount as is hereinafter mentioned ; (that is to say) If the fuU amount of the debt or claim of the creditor is admitted by the company, or, though so admitted, is such as the company are willing to set apart and appropriate, then the full amount of the debt or claim shall be set apart and appropriated ; If the f uU amount of the debt or claim of the creditor is not admitted by the company, and is not such as the company are willing to set apart and appropriate, or if the amount is contingent or not ascer- tained, then th« court may, if it think fit, inquire into and adjudicate upon the validity of such debt or claim, and the amount for which the company may be liable in respect thereof, in the same manner as if the company were being wound up by the court, and the amount fixed by the court on such inquiry and adjudication shaU be set apart and appropriated : (0. A., 1867, s. 14 ; and see WiNDING-TJP.) A creditor who " does not consent " does not mean a creditor who remains perfectly passive, having the opportunity of opposing. Creditors who neither assented to nor dissented from the proposed reduction were held not to be considered creditors who did " not consent," but be taken to have assented : (Buckley, 3rd edit., 439.) Where certain debenture holders, who had not consented to the proposed reduction, and had not attended to object, did not appear at the hearing of the petition, it was held that they could not be taken to have consented to the reduction,, but that a consent brief on their behalf must be pro- duced, or the amount of their debentures must be deposited in court : (Be Patent Ventilating Commamy, L. Bep. 12 Ch. Div. 264 ; 41 L. T. Biep. N. S. 82.) 11. Disputed Claims. If any debt or claim, the particulars of which are .... sent in, shall not be admitted by the company at its full amount, then and in every such case, unless the company are willing to set apart and appropriate as the judge shall direct the fuU amount of such debt or claim, the company ^all, if the judge .... so direct, send to the creditor a notice that he is required to come in and prove such debt or claim, or such part thereof as is not admitted by the company by a day to be therein named, being not 'less than four clear days after such notice^ and being the tune appointed by the judge for adjudicating upon such debts and chums, and such notice shall be sent in [a prepaid letter addressed to each creditor at his last known address or place of abode] : (G. O., 1868, r. 12.) For the form of notice, see G. 0. 1868, sched., form No. 7. Such creditors as come in to prove their debts or claims in pursuance of [the] notice shall be allowed their costs of proof against the company, and be answerable for costs, in the same manner as in the case of persona coming in to prove debts under a decree in a cause : (G. O., 1868, r. 13.) 12. Chief Clebks' Cebtificate as to Cbeditobs. The result of the settlement of the list of creditors shall be stated in a certificate by the chief clerk, and such certificate shall state what debts or claims (if ai^) have been disallowed, and shall distinguish the debts Oom/pames. 177 or claims the full amount of which the company are willing to set apart and appropriate, and the debts or claims (if any) the amount of which has been fixed by inquiry and adjudication in manner proTided by ... . the Act, and the debts or claims (if any) the full amount of which is not admitted by the company, nor such as the company are williug to set apart and appropriate, and the amount of which nas not been fixed by inquiry and adjudication as aforesaid; and shall show which of the creditors have consented in writiug to the projfosed reduction, aad the total amount of the debts due to them, and the total amount of the debts or claims the payment of which has been secured in manner provided by the [Act], and the person to or by whom the same are due or claimed ; but it shall not be necessary to show in such certificate the several amounts of the debts or claims of any persons who have consented in writing to the proposed reduction, or the payment of whose debts or claims has been secured as aforesaid ; (G. O., ,1868, r. 14, and Ord. March 2nd, 1869.) 13. Setting down Petition. After the expiration of eight clear days from the filing of [the chief clerk's certificate] the petition may be placed in the list of petitions upon a note from the chief clerk to the secretary of the Lord Chancellor or of the Master of the BoUs, as the case may be, stating that the certificate has been filed and become binding : (Cr. O., 1868, r. 15.) 14. Adteetisement of Hearing. Before the hearing of the petition, notices stating the day on which the same is appointed to be heard shall be published at such times and in such newspapers as the judge shall direct : (G. O., 1868, r. 16.) For the form of notice, see G. 0., 1868, sohed., form No. 8. 15. Hearing. (a) Creditors entitled to Appear. Any creditor settled on the .... list whose debt or claim has not, before the hearing of the petition, been discharged or determined, or been secured in manner provided by the .... Act, and who has not before the hearing signed a-consent to the proposed reduction of capital, may, if he think fit, upon giving two clear day's notice to the solicitor of the company of his intention so to do, appear at the hearing of the petition, and oppose theapplication : (G. O. 1868, r. 17.) Where a creditor who appears at the hearing .... is a creditor the full amount of whose debt or claim is not admitted by the company, and the validity of such debt or claim has not been inquired into, and adjudi- cated upon under .... the Act, -the costs of and occasioned by his appearance shall be dealt with as to the court shall seem just, but m all other cases a creditor appearing .... shall be entitled to the costs of such appearance, unless the court shall be of opinion that in the circum- stances of the particular case Ms costs ought not to be allowed : (G. O. 1868, r. 18.) (6) Direction for Beewring Debts cmd Ad^pwrn/ment. When the petition comes on to be heard, the court may, if it shall so think fit, give such directions as may seem proper with reference to the securing in manner mentioned in ... . the Act, the payment of the debts or claims of any creditors who do not consent to the proposed reduction ; and the further hearing of the petition may, if the court shall think fit, be adjourned for the purpose of allowing any steps to be taken with reference to the securing in manner aforesaid the payment of such debts or claims : (G. 0. 1868, r. 19.) N 178 Companies. 16. Okdee Oonmeming Reduction. On the hearing of the petition, the court, if satisfied that with respect to every creditor of the company who under the provisions of [the] Act is entitled to object to the reduction, either his consent to the reduction has been obtained, or his debt or claim has been discharged or has determined, or has been secured, may make an order confirming the reduction on such terms and subject to such conditions as it deems fit : (C. A. 1867, s. 11.) Where the court makes an order confirming a reduction, such order shall give directions in what manner, and in what newspapers, and at what times, notice of the registration of the order and of such minute as mentioned in the .... Act [see post, 18], is to be published; and shall fix the date uutU which the words " and reduced," are to be deemed part of the name of the company as mentioned in the .... Act : (G. 0. 1868, r. 20.) Three weeks from the date of the order is a common petiod to be fixed for the discontinuance of the term " and reduced " : [Be Sha/rpe, 8tewa/rt and Co., L. Rep. 6 Eq. 156 ; Re Estate Company, L. Rep. 5 Oh. 407.) But a fortnight has sometimes been considered sufficient : (iJe Telegraph Construction Company, L. Rep. 10 Bq. 384 ; Re Credit Fonder Company, L. Rep. 11 Eq. 356.) In any ease that the court thinks fit so to do, it may require the company to publish in such manner as it thinks fit, the reasons for the reduction of its capital or such other information in regard to the reduction of its capital as the court may think expedient, with a view to give proper information to the public in relation to the reduction of its capital by a company, and if the court think fit, the causes which led to such reduc- tion : (0. A. 1877, s. 4.) 17. Costs. The court may in any proceedings under [the] Act make such order as to costs as it deems fit : (0. A. 1867, s. 12.) 18. Reghsteation of Oedee and Minute. The registrar of joint stock companies upon the production to him of an order of the court confirming the reduction of the capital of the company, and the delivery to him of a copy of the order and of a minute (approved by the court), showing with respect to the capital of the company, as altered by the order, the amount of such capital, the number of shares into which it is to be divided, and the amount of each share, shall register the order and minute; and on registration the special resolution confirmed by the order so registered shaQ take effect : fC. A. 1867, s. 16.) The minute required to be registered in the case of reduction of capital shall show, in addition to the other particulars required, the amount (if any), at the da,te of the registration of the minute, proposed to be deemed to have been paid upon each share : (0. A., 1877, s. 4.) As to the registration required on reduction by returning profits, see swp. 1 (6). 19. Notice or Registeation. Notice of [the registration of the minute] shall be published in such manner as the court may direct : (0. A., 1867, s. 15.) 20. Certificate of Reghstbation. The_ registrar shall certify under his hand the registration of the order and minute, and his certificate shall be conclusive evidence that aU the requisitions of this Act with respect to the reduction of capital have been complied with, and that the capital of the company is such as is stated in the minute : (id.) Companies. 179 21. MlNtTTE TO FOKM PART OF MEHOEANDTTM OF ASSOCIATION. . The minute when registered shall be deemed to be substituted for the corresponding part of the memorandum of association of the company, and shall be of the same validity and subject to the same .alterations as if it had been originally contained in the memorandum of association : (0. A., 1867, s. 16.) IX. DBFUNOT COMPANIES. 1. Striking Names off Register. (a) Inquiry whether the Company is in operation. Where the registrar of joint stock companies has reasonable cause to believe that a company, whether registered before or after the passing of this Act, is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation : (0. A. 1880, s. 7. (1).) (6) Proceedings when no answer received. If the registrar does not within one month of sending the letter receive any answer thereto, he shall within fourteen days after the expiration of the month send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received by the registrar, and that if an answer is not received to the second letter within one month from the date thereof, a notice will be published in the Gazette with a view to striking the name of the company ofE the register : (Id. (2).) (c) To whom Letter or Notice addressed. A letter or notice authorised or required .... to be sent to a company may be sent by post addressed to the company at its registered office, or, if no office ■lias been registered, addressed to the care of some director or officer of the company, or if there be no director or officer of the company whose name and adcfress are known to the registrar, the letter or notice (in identical form) may be sent to each of the persons who subscribed the memorandum of association, addressed to him at the address mentioned in that memorandum : {Id. (6).) (d) Notice in Gazette. If the registrar either receives an answer from the company to the efEect that it is not carrying on business or in operation, or does not within one month after sending the second letter receive any answer thereto, the registrar may publish in the Gazette and send to the company a notice that at the expiration of three months from the date of that notice the name of the company mentioned therein wiQ, unless cause is shown to the contrary, be struck off the register and the company will be dissolved : (Id. (3).) (e) Striking out. At the expiration of the time mentioned in the notice the registrar may, unless cause to the contrary is previously shown by such company, strike the name of such company off the register, and shall publish notice thereof in the Gazette, and on the publication in the Gazette of such last- mentioned notice the company whose name is so struck off shall be ■dissolved : Provided that the liability (if any) of every director, managing officer, and member of the company shall continue and may be enforced as if the company had not been dissolved : (Id. (4).) 2. Restoring Name. If any company or member thereof feels aggrieved by the name of such company naving been struck off the register in pursuance of this section, the. company or member may apply to the .... court .... N 2 180 Companies. and [the] court, if satisfied that the company was at the time of the striking off carrying on business or in operation, and that it is just so to do, may order the name of the company to be restored to the register, and thereupon the company shall be deemed to have continued in exist- ence as if the name thereof had never been struck ofE; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had never beeii struck off : {Id. (6).) X. LIFE ASSURAJSrCE COMPANIES. 1. Deposit or Funds. (a) Deposit of 20,0002. before Ineorporation. Every company established after the [9th August, 1870] within the United Kingdom, and every company established or to be esteblished out of the United Kingdom which shall after the [said date] commence to carry on the business of life assurance within the United Kingdom, shall be required to deposit the sum of twenty thousand pounds with the [Paymaster] General of the 'Court .... to be invested by him in one of the securities usually accepted by the court for the investment of funds placed from, time to time under its administration, the company electing the particular security and receiving the income therefrom, and the registrar shall not issue a certificate of incorporation unless such [Pay- master] deposit shall have been made-: (L. A. 0. A., 1870, s. 3.) (6) Payment into Cowrt. Every sum required ... - to be deposited with the [Paymaster] General of the Court .... shall be paid into the Court .... and orders with respect to the payment of such company into and out of court, and the investment and return thereof, and the payment of the dividends and interest thereof, may be from time to time made, altered, and revoked by the like authority and in the like manner as orders with respect to the payment into and out of court, and the investment of other money, and the application of the dividends and interest thereof : (L. A. C. A., 1871 ; see Payment into and Ottt of CotrnT.) No request to or directions by the Chancery Paymaster is necessary : (See Ch. F. R., 1874, r. 25.) (c) Who may Deposit. The said deposit may be made by the subscribers of the memorandum of association of the company, or any of them, in the name of the proposed company, and such deposit upon the incorporation of the com- pany shall be deemed to have been made by and to be part of the assets of the company : (L. A. C. A., 1872, s. 1.) (d) Deposit to form part of Company's Fund. The said deposit shall, until returned to the company, be deemed to form part of the life assurance fund of the company, aiid shall be subject to the provisions of sect. 4 of the Life Assurance Companies Act, 1870, accordingly : {Id.) (e) Boa/rd of Trade Warrant. Where any company is required .... to deposit the sum of 20,000i. with the [Paymaster] General of the Court .... the said company, or the subscribers of the memorandum of association of the said com- pany, or any of them, as the case may be ... . (referred to as the promoters), may make application to the Board of Trade, [who] may thereupon issue their warrant to the promoters for such payment into court, which warrant shall be a sufficient authority for the company or Gompanies. ] 81 persons therein named to pay the money therein mentioned into the Bank of England, in the name and with the privity of the said [Paymaster] General, and for that officer to issue directions to such bant to receive the same, to he placed to his account there ex parte the company mentioned in such warrant, according to the method .... for the time being in force respecting the payment of money into the said court, and without fee or reward : (B. T. B., 1872, r. 2 ; and see Payment into AND OUT OP COITBT.) (/) Deposit of Annuities, Stocks, &c., in lieu of Money. .... In lieu, wholly or in part, of the payment of money, the pro- moters may bring into court, as a deposit, an equivalent sum of bank annuities, or of any stocks, funds, or securities, in which cash under the control of the court is for the time being permitted to be invested, or of exchequer bills (the value thereof being taken at the price at which the promoters originally purchased the same, as appearing by the broker's cert&cate of that purchase) ; and iu that case the Board of Trade shall vary their warrant accordingly by directing the transfer or deposit of such amount of stocks, funds, securities, or exchequer biUs by the persoiis therein named, into the name or to the account of the said [Paymaster] Greneral in trust to attend the orders of the couit ex parte the company mentioned in such warrant : (B. T. R., 1872, r. 2.) (51) Deposit when Office of Paymaster is Closed. At any time when the office of the [Paymaster] General of the Court .... is closed, a deposit .... may nevertheless be made, in the manner and subject to the regulations provided with respect to deposits by com- panies by sect. 88 of the Lands Clauses Consolidation Act, 1865 : (B. T. B., T. 3; and see Lands Cl^ttses Act.) ih) Deposit may be Invested. Where money is so paid into the court .... the court may, on the application of the company or the persons named in the warrant of the Board of Trade, or of the majority or survivors of such persons, order that the same be invested in such stocks, funds, or securities as the applicants desire, and the court thinks fit : (B. T. R., 1872, r. 4.) (i) Payment out of Interest on the Deposit. The depositors shall be entitled to receive payment of the interest or dividends from time to time accruing on or in respect of the deposit while in court. And the court may, from time to time on the application of the depositors, make such order as may seem fit respecting the payment of the interest or dividends accordingly : (B. T. R., 1872, 1. 7.) (fc) Payment out of Deposit wlien Premiums of Company Amount to 40,000?. .... The [Paymaster] General shall return [the] deposit to the com- pany 80 soon as its life assurance fund accumidated out of the premiums shall have amounted to foi-ty thousand- pounds : (L. A. C. A., 1870, s. 3.) The court shall, on the application of the depositors, order the deposit fund to be paid, transferred^ or delivered out to the applicants, or as they direct, so soon as it is proved to the satisfaction of the court that the life assurance fund of the company in respect of which the deposit is made, accumvdated out of premiums paid to the said company, amounts to the sum of forty thousand pounds : (B. T. R., 1872, r. 6.) Application to Court to be by Petition. 9. Any application .... to the court .... shall be made in a sum- maiy way by petition : (B. T. R., 1872, r. 9.) 182 Companies. II. AMAiGAMATION OR TRANSFER. (a) Petition to Court to sanction Arrangement. Wiere it is intended to amalgamate two pr more companies, or to transfer the life assurance business of one company to another, the direc- tors of any one or more of such companies may apply to the court, by *ttetition, to sanction the proposed arrangement, notice of such application being published in the Gazette, and the court, after hearing the directors and other persons whom it considers entitled to be heard upon the petition, ■ may confirm the same if it is satisfied that no sufficient objection to the arrangement has been established : (L. A. C. A., 1870, s. 14.) (6) Notice to Policy-holders. Before any such application is made to the court a statement of the nature of the amalgamation or transfer, as the case may be, together with an abstract containing the material facts embodied in the agreement or deed under which such amalgamation or transfer is proposed to be effected, and copies of the actuarial or other reports upon which such agreement or deed is founded, shall be forwarded to each policy holder of both companies in case of amalgamation, or to each policy holder of the transferred company in case of transfer, by the same being transmitted in manner proTided by section one hundred and thirty-six of The Companies Chauses ConsoMatiou Act, 1845, for the transmission to shareholders of notices not requiring to be served personally : {Id.) As to the notice to policy-holders when resident abroad, see Be London and 8ov,thwa/rTc Insv/ra/nce Corporation (W. N. 1880, p. 65). (c) Inspection of Agreement. The agreement or deed under which [the] amalgamation or transfer is effected shall be open for the inspection of the poncy holders and share- holders at the office or offices of the company or companies for a period of fifteen days after the issuing of the abstract herein provided: (L. A. 0. A., 1870, s. 14.) (d) Dissent of Policy-holders. The court shall not sanction any amalgamation or transfer in any case in which it appears to the court that policy holders representing one-tenth or more of the total amount assured in any company which it is proposed to amalgamate, or in any company the business of which it is proposed to transfer dissents from such amalgamation or transfer : {Id.) (e) Sanction of Court must be Obtavned. No company shall amalgamate with another, or transfer its business to another, unless such amalgamation or transfer is confirmed by the court : {Id.) (/) Deposit of DociMnents with Board of Trade. When an amalgamation takes place between any companies, or when the business of one company is transferred to another company, the combined company or the purchasing company, as the case may be, shall, within ten days from the date of the completion of the amalgamation or transfer, deposit with the Board of Trade certified copies of statements of the assets and liabilities of the companies concerned in such amalgamation or transfer, together with a statement of the nature of the amalgamation or transfer, and a certified copy of the agreement or deed under which such amalgamation or transfer is eJEEe^ted, and certified copies of the actuarial or other reports upon which such agreement or deed is founded ; and the statement and agreement or deed of amalgamation or transfer shall be accompanied by a declaration under the hand of the chairman of each company and the principal managing officer of each company, that to the best of their belief every payment made or to be made to any person Gompames, 183 whatsoever on account of the said amalgamation or transfer is therein fully set forth, and that no other payments beyond those set forth have been made or are to be made either in money, policies, bonds, valuable securities, or other property by or with the knowledge of any parties to the said amalgamation or transfer : (L. A. C. A., 1870, s. 15.) (g) Act Applies to Life Companies Only. [These provisions] shall not apply in any case ia which the business of any company which is sought to be amalgamated «r transferred does not comprise the business of life assurance : (L. A. 0. A., 1870, s. 14.) 3. Winding-up [see Winding-up]. XI. RAILWAY COMPANIES. 1. Abandonment. (o) Warrant of Board of Trade. If any company authorised, by Act of Parliament [passed before the Session of 1867] to make a railway, desire that the making and carrying on of such railway, or some part thereof, whether commenced or not, be abandoned, the Board of Trade may grant a warrant for the abandonment of the railway, on the written application of (1.) The company, acting by the authority and with the consent of the holders of three-fifths of the shares or stock of such company, represented .... at a general meeting of shareholders [convened as directed by 13 & 14 Tict. c. 83] (13 & 14 Yict. c. 83, s. 1), or (2.) Without the preliminary consent of a meeting of shareholders, if no part, or a part less than three-fifths of the share capital of the company has been subscribed, of, Aiy person named in the special Act incorporating the company as a member or director thereof, or of Any person named in the warrant or order directing payment of any deposit under any standing order of either House of Parliament, or of Any person who has lent the amount of such deposit, or any part thereof, or has entered into any bond conditioned for the completion of the railway, or for payment of any money in default thereof (30 & 31 Vict, c. 127, s. 32), or (3.) Where no part of the railway is open for traffic, and the company has made default in payment of a sum of money to any person or body corporate required by any judgment or order of any court, of such person or body corporate : (32 & 33 Vict. o. 114, s. 8.) (6) Winding-vp. When a warrant has been granted ..... for the abandonment of the whole railway of any railway company, a petition for 'winding-up the affairs of such company may be presented under the Companies Acts, 1862 and 1867, by the company, or by any person who, under the last mentioned Acts, is authorised to present a petition for winding-up a company, or by any person upon whose application the Board of Trade may proceed in pursuance of sect. 32 of the .... Railway Companies Act, 1867 .... and for that purpose the railway company, whose railway is so authorised to be abandoned, shall be deemed to be an unregistered company, which may be wound up under the Companies Acts, 1862 and 1867 : (32 & 33 Vict. c. 114, 8. 4 ; and see Winding-up.) The petition need not be entitled in the matter of the Abandonment Acts : (Seton, 1457.) If the warrant for the abandonment was made on condition that the money deposited as security for the completion of the railway, or the stocks, funds, or securities, in which the same is invested, or the money 1 84 Gompames. secured by any bond conditioned for the completion of the railway, or for payment of money in default shall be applied as part of the assets of the company, the court may, if it think fit, direct that such money, stock, fmufe, and securities, shall not be applicable for the payment of any debt, or part of a debt, which, regard being had to what is fair and reasonable as between all the parties interested under all the circumstances of the case, appears to the court to hav^ been incurred on account of the promotion of the company : (32 & 33 Vict. c. 114, s. 5.) Claims by parliamentary agents and solicitors as to expenses incurred in getting the Bill passed, and claims in respect of moneys advanced by tha intending contractor for the same purpose are within the sections : (Seton, 1459.) Where the warrant for abandonment is made on condition that the money deposited as security for the completion of the railway, or the stocks, funds, or securities in which the same is invested, or the money secured by any bond conditioned for the completion of the railway, or for payment of money in default thereof, shall be applied as part of the assets of the company, the following provisions shall have effect : (1.) The court in which the company is being wound up may order such money, stocks, funds, or securities, or so much thereof as is required to be applied as assets of the company, to be paid, transferred, or delivered out to the official liquidator, and unless the court is satisfied that the same or any part thereof are not required to be applied as assets shall not order the same or any part thereof to be paid, transferred, or delivered out to any other person. (2.) The Commissioners of Her Majesty's Treasury, upon the applica- tion of the oflcial liquidator, made with the sanction of the court, may, if they think fit, assign the bond to the official liquidator, and upon such assignment the bond shall be deemed to have been entered into with the official liquidator in his official name, and with his successors in that office, and may, subject to the sanction of the court, be enforced accordingly. (3.) Any bond so assigned may, after a sufficient sum has been paid thereunto as assets of me company be cancelled by the court : (32 & 33 Tict. c. 114, s. 6.) Nothing in the [Act] shall affect any right to that part of the money deposited as security for the completion of the railway or of the stocks, funds, or securities, on which the same is invested, or of the|money secured by any bond conditioned for the completion of the railway, which is not applied in payment of the debts and liabilities of the company, or required for that purpose : [Id. a. 7.) Where a company, no part of the railway of which is open for traffic, has been required by auy judgment or order of any court to pay a sum of money to any person or body corporate, and has made default in such payment, the Board of Trade may proceed under the .... Acts, upon the application of such person or body, in the same manner as if such per- son or body were mentioned in that behalf in the section : [Id., s. 8.) (c) Ccmcellation of Bond and Payment out. Where a warrant for abandonment is granted under the Abandonment of Railways Act, 1850, as extended by [the Act of 1869] the Commis- sioners of Her Majesty's Treasury may cancel and deliver up any bond entered into by or on behalf of a railway company for securing the com- pletion of a railway, or, in case the abandonment be of part of the railway only, may cancel and deliver up such bond on receiving another bond in lieu thereof conditioned for payment of a due proportionate part of the amount secured by such former bond ; and any money remaining deposited Com'pames. ] 85 as securily for the completion of the railway or the stocks, funds, or securities in which the same is invested, or any bank annuities, stocks, funds, securities, or exchequer bills remaining deposited as such security, or in case the abandonment authorised is of part only of a railway, then . such proportionate part as the Board of Trade thinks fit of such money, stocks, funds, securities, annuities, or Exchequer bills, shall be paid, transferred, or delivered out to the persons who would be entitled to receive the same if the railway had been completed and opened for public traffic; and the Court shall, on the application of those persons, order payment, transfer, or delivery out thereof accordingly, on a certificate of the Board of Trade certifying that such a warrant for abandonment has been granted : (R. 0. A. 1867, s. 34.) The certificate of the Commissioners under the Act of 1850 is evidence of publication of the warrant of abandonment : (13 & 14 Vict. c. 83, s. 18.) As to costs on petition for transfer out, see Re Laughame Railway Company (L. Rep. 12 Eq. 454). 2. Arrangement with Ceeditoes. (a) Preparation of Scheme. Where a company are unable to meet their engagements with their creditors the directors may prepare a, scheme of arrangement between the company and their creditors (with or without provisions for settling and defining any rights of shareholders of the company as among themselves, and for raising, if necessary, additional share and loan capital, or either of them) and may file the same in the [Chancery Division] : (Railway Companies Act, 1867, s. 6.) Every scheme to be filed [under] sect. 6 . . . . shall be intituled in the matter of " The Railway Companies Act, 1867," and in the matter of the company in question : (Oh- O., 24th Jan. 1868, r. 1.) Eveiy such scheme shall be marked, either with .... the name of one of the [judges of the Chancery Division] and the matter of such scheme (unless removed . . . .) shall accordingly be attached to the court of such [judge] as the case may be, in like manner and for the same purposes as causes are attached to a particular court : {Id., r. 2.) Every schema to be filed as aforesaid shall be printed on paper of the same size and description, and in the same style and manner, as [pleadings] are required to be printed, or shall be written bookwise upon paper of the same size and description as last aforesaid ; {Id., r. 3.) Every fifth line of each page of a printed scheme shall he num- bered : {Id., r. 9.) There shall be indorsed upon every scheme so filed as aforesaid the name and address of the solicitor and Loudon agent (if any) of the company, and also the address for service of such solicitor in cases where an address for service is required by the .... orders of the court : {Id., r. 6.) (6) Preparation of Decla/ration and Affidavit. [With the scheme there must be filed] a declaration in writing under the common seal of the company to the effect that the company are unable to meet their engagements with their creditors, and ... an affidavit of the truth of such declaration made by the chairman of the board of directors and by the other directors, or the major part in number of them, to the best of their respective judgment and belief : (R. C. A. 1867, s. 6.) [The] declaration and affidavit must be intituled in the matter of " The Railway Companies Act, 1867," and in the matter of the company in question: (0. of January, 1868, r. 1.) 186 Companies. The declaration and aflSdavit must be marked with the division and judge's name in the same manner as the scheme : {Id., i. 2.) Every declaration and affidavit to be filed as mentioned in the 6th section of the said Act, shall be written bookwise upon paper of the same size and description as that on which [pleadings] are printed : {Id., r. 4.) (c) Filing 8chem,e, Declaration, and Affidavit. Where a written scheme is filed, the person bringing the same to be filed, shall, at the same time, leave with the [master] a fair copy thereof, and the [master is] to examine such copy with the scheme filed, and return it so examined with a certificate thereon that it is correct and proper to be printed: {Id., r. 7.) The directors are then to cause the scheme to be printed from such certified copy, on paper of the same size and description, and in the same type, style, and manner, as [pleadings] are required to be printed, and, before the expiration of four days from the filing of the scheme are to leave a printed copy thereof with the [master] with a written certificate thereon by the solicitor of the company that such print is a true copy of the scheme so certified, and after the expiration of such four days no evidence of the scheme having been filed shall be admissible until such printed copy thereof has been filed : {Id., r. 8.) Every .... scheme shall be filed in the [Central Office] : {Id., r. 5.) This applies where a company, whose principal office is situate in England, have a railway or part of a railway in Scotland : (R. -C. A., 1867, s. 21.) The declaration and affidavit required by sect. 6 of the said Act shaE be annexed to such scheme and filed at the same time therewith, and the S Master] shall not file any such scheme, unless accompanied by such eclaration and affidavit : {Id., r. 6.) {d) Furnishing Copies: At any time after the expiration of four days from the filing of a scheme, whether printed or written, any person may demand, by a reqtiisition in writing, delivered at the principal office of the company, or at the office of their solicitor, or of his London agent (if any) any number, not exceeding ten, of the printed copies of the scheme, and the copies so required shall on such demand be delivered to the person so requiring the same, with a written certificate thereon by the solicitor of the ieompany that they are true copies of the scheme filed : '(Ch. O. Jan. 1868, r. 10.) Every such copy is on delivery to be paid for at the rate of one haK- penny per folio, except in the case provided for by the 20th section of the said Act, in which case it is to be paid for at the rate prescribed by the said Act: {Id., r. 11.) The company shall at all times keep at their principal office printed copies of the scheme, when confirmed and enrolled, and shall sell such copies to all persons desiring to buy the same at a reasonable price, not exceeding sixpence for each copy : (B. 0. A. 1867, s. 20. A penalty for disobedience is entailed by the same section.) (e) Notice of Filing Scheme. Notice of the filing of the scheme shall be published in the Oazette .- {Id., a. 8.) The notice, to be published in the Gazette, of the filing of the scheme shall be signed by the solicitor of the company, or his London agent, and shall state whether the scheme contains any provisions for settling and defining any rights of shareholders among themselves, or for raising any and what amount of share or loan capital, and which, and shall set forth the name and address of the solicitor and London agent (if any) of the Gompcmieii. 187 company, and may be in the Form No. 1 in the 3rd schedule [to the order] with such variations as the circumstances of the case may require : (Oh. O., January, 1868, r. 12.) Where a company, whose principal oifice is situate in England have a railway, or part of a railway in Scotland .... notice of the filing of the scheme shall be published in the Edinburgh Gazette, and after such publication no diligence against the property of the companjr in Scotland shall be available for any person who is not amenable to the jurisdiction of the Court of Chancery in England without the leave of the court of session to be obtained on petition in a summary way : (R. 0. A. 1867, 6. 21.) (/) Certificate of Filing. When a scheme has been filed [a master] shall, at the request of any person, give and sign a certificate of the filing thereof, or of the filing of a printed copy thereof ; an^ such certificate may be in the form, with such variations as the circumstances of the case may require, [in rule 13 of the Order] : (Ch. 0., January, 1868, i-. 13.) {g) Staying Proceedings against Com/pany. After the filing of the scheme [and before the enrolment thereof] .... on the application of the company .... any action against the company [may] on such terms as the court thinks fit [be stayed by the court in which such action is brought] : (R. 0. A. 1867, s. 7 ; -Be Cambrian Bail- ways Company, L. Rep. 3 Ch. App. 278 ; J. A. 1873, s. 24, sub-s. 5 ; and see Staying Peocebdings.) Proceedings by creditors or unpaid landowners may be stayed during the maturing of the scheme : {Be Cambrian Bailways Company, sw^.) But win not be, unless the scheme makes reasonable provision for the payment of their claims : [Id.) No order, under sect. 7 of the ... . Act, for [staying proceedings] against the company, by reason of a scheme having been filed, shall be made, except on an undertaking by the company to be answerable in such damages (if any) as the court, or the judge in chambers, may think fit to award in the event of the plaintifE being ultimately held entitled to proceed with such action ; and on such further terms (if any) as .the court or judge may think reasonable : (Ch. O. Jan. 1868, r. 14.) Where a company whose principal ofiB.ce is situate in England have a railway or part of a railway in Scotland, and after a scheme is filed any person not amenable to the jurisdiction of the Chancery Division brings an action against the company in Scotland, the Court of Session may stay proceedings : (R. C. A. 1867, s. 21.) After such publication of notice [and before enrolment] no execution, attachment, or other process against the property of the company shaUbe available without leave of the court, to be obtained on summons or motion in a summary way : (R. C. A. 1867, s. 9 ; Be Cambrian Bailways Com- pany, sup.) Execution will not be allowed on a scire facias against shareholders ia respect of unpaid capital : (Be Devon and Somerset Bailway Compamy (1), L. Rep. 6 Eq. 610.) ^ (h) Assent to Scheme. (1) By Mortgagees and Bondholders. The scheme shall be deemed to be assented to by the holders of mort- gages or bonds issued imder the authority of the company's special Acts when it is assented to in writing by three-fourths in value of the holders of such mortgages or bonds, and shall be deemed to be assented to by the holders of Debenture Stock of the company when it is assented to m 188 Gompan/ies. ■writing by three-fourths in value of the holders of such stock : (B. 0. A. 1867, s. 10.) A debenture holder who has recovered judgment is within the section : {Potteries, &c., CompamAj v. Minor, L. Bep. 6 Oh. App. 621.) After such assent the scheme is binding on the minority unless it can be shown that the vote of the majority was obtained by fraud : {Re East and West Junction Railway Company, L. Bep. 8 Eq. 87.) (2) By Bentcharge Holders. Where any renteharge or other payment is charged on receipts of or is payable by the company in consideration of the purchase of the under- taking of another company, the scheme shall be deemed to be assented to by the holders of such renteharge or other payment when it is assented to in writing by three-fourths in value of such holders : (Id., s. 11.) (3) By Guaranteed and Preference Shareholders. The scheme shall be deemed to be assented to by the guaranteed or preference shareholders of the company when it is assented to in writing as foUows : — If there is only one class of guaranteed or preference share- holders, then by three-fourths in value of ttiat class, and if there are more classes of guaranteed or preference shareholders than one, then by three- fourths in value of each such class : {Id., s. 12.) (4) By Ordinary Shareholders. The scheme shall be deemed to be assented to by the ordinary share- holders of the company when it is assented to at an extraordinary general meeting of the company specially called for that purpose : {Id., s. 13.) (6) By Leasing Oompany. Where the company are lessees of a railway the scheme shall be deemed to be assented to by the leasing company when it is assented to as follows : In writing by three-fourths in value of the holders of mortgages, bonds, and debenture stock of the leasing company : If there is only one class of guaranteed or preference shareholders of the leasing company, then in writing by three-fourths in value of that class, and if there are more classes of guaranteed or preference shajreholders in the. leasing company than one, then in writing by three-fourths in value of each such class : By the ordinary shareholders of the leasing company at an extraordi- nary general meeting of that company specially called for that purpose : {Id., s. 14.) (6) By Outside Creditors. When a scheme contains a clause seriously affecting the rights of out- side creditors, the court wiU require the assent 'm writing of every such outside creditor before it confirms the scheme : (.Be Bristol and North Somerset Railway Company, L. Bep. 6 Eq. 448.) (7) When Unnecessary. The assent to the scheme of a-ny class of holders of mortgages, bonds, or debenture stock, or of any class of holders of a rent-charge pr other payment as aforesaid, or of any class of guaranteed or pre- ference shareholders, or of a leasing company, shall not be requisite itt case the scheme does not prejudicially affect any right or interest of any such class or company : {Id. s. 15.) {i) Petition for Confirmation of Scheme. If at any time within three months after the filiigof the scheme, or within such extended time as the court from time to time thinks fit to allow, the directors of the company consider the scheme to be assented to as by Oompanies. 189 this Act required, they may apply to the court by petition in a summary way for confirmation of the scheme : (R. C. A., 1867, s. 16.) Every petition for confirmation of a scheme shall be presented by the directors or the major part of them. Such petition shall not set forth the . scheme, but only refer thereto ; and may be in the form No. 2, in the third schedule [to the order of January, 1868] with such variations as the circumstances of the case may require : (Oh. O. Jan. 1868, r. 15.) (k) Summons to appoint Searing Day. When any petition to confirm a scheme is presented, the directors shall apply to the judge in chambers to appoint the day on which the same is to come into the paper for hearing, such day not to be before the expiration of three weeks from the' time of such application : (Ch. O., Jan. 1868, r. 17.) (l) Notice of Application. Notice of any such appUeation, when intended, shall be published in the Gazette : (R. C. A., 1867, s. 16.) The directors .... shall cause a notice of the presentation [of the petition] to be inserted as follows (that .is to say) : (1) In the case of a company whose principal office is withiu ten miles from the Greneral Post Office, in the London Gazette, and in such two London daily morning newspapers as the judge in chambers shall direct. (2) In the case of any other company, in the London Gazette, and in such two local newspapers circulating in the district where the principal office of such company is situate, as the judge in chambers shall direct. Such notice shall state the day on which the scheme was filed, and the day on which the petition was presented, and the day on which the same is directed to come into the paper for hearing, and the name and address of the solicitor and London agent (if any) of the company, and may be in the form No. 3 in the third sohediile [the order of January, 1868] with such variations as the circumstances of the case may require : (Oh. O., Jan. 1868, r. 17.) Such notice shall, at least once in every entire week, reckoned from Sunday morning to Saturday evening, which shall have elapsed between the time of the first insertion thereof, and the day on which such petition is directed to come into the paper for hearing, be again inserted in such two London or local newspapers as aforesaid on such day or days as the judge in chambers shall direct : (Id., r. 18.) (m) Entering appearance. Any creditor, shareholder, or other party whose rights or interests are affected by such scheme, and who shafl be desirous to be heard in opposition to the confirmation thereof, shall, at least two clear days before the day on which the petition for confirmation is directed to come into the paper for hearing, enter an appearance at the [Oentral] Office : (Ch. O., Jan. 1868, r. 19.) Any person so entering an appearance shall be deemed to have submitted himself to the jurisdiction of the court as to the payment of costs and otherwise : [Id., r. 20.) (n) Searimg. The petition shall not come on to be heard until at least fourteen clear days after the insertion of such notice [gwjp.] as aforesaid : (Id., r. 19.) The petitioners presenting such petition as aforesaid shall, for the purposes of such petition, be treated as representing the company, and the company shall not otherwise appear on the hearing of such petition : {Id., r. 16.) [Other persons, required to enter appearance (swp.)] in default of so 190 Gompanies. doing, shall not be entitled to be heard, unless by the special leave of the court : {Id., r. 19.) (o) Confirmation of Scheirie. After hearing the directors, and any creditors, shareholders, or other parties whom the court thinks entitled to be heard on the application, the <30urt, if satisfied that the scheme has been within three months after the -filin g of it, or such extended time (if any) as the court has allowed, assented to as required by this Act, and that no sufficient objection to the scheme has been established, may confirm the scheme : (B. C. A. 1867, a. 17.) Dissenting debenture holders are entitled to appear and oppose the scheme : {Me Hast and West Junction Railway Company, L. Rep. 8 Bq. 87.) Outside creditors ought not to appear to oppose the petition, as their rights will be unaffected by the scheme when enrolled : {Be Kingston and Bardisley Railway Company, W. N. 1877, p. 33.) Schemes have been confirmed enabling companies to issue debenture stock in excess of their statutory powers, and pay their creditors with such stock ; and to convert mortgages into irredeemable debenture stock : (Seton, 1464.) But the court cannot confirm a scheme altering the constitution of the company: {Be Stafford and Uttoxeter Bailway Company, 41 L. J. 777, Oh.) {p) Notice of Confirmation. Notice of the confirmation .... of the scheme shall be published in ihe Gazette : (R. 0. A. 1867, s. 19.) A scheme under that Act shall not be enrolled unless notice of the orclor confirming it has at least once in every entire week, reckoned from Sunday morning to Saturday evening, which elapses between the pronouncing of the order and the expiration of thirty days from the pronouncing thereof, been inserted in such two newspapers as shall have been appointed by the judge for the insertion of advertisements under the order made' pursuant to that Act : (O. LXIY., April, 1880.) (g) Enrolment. The scheme when confirmed shall be enrolled in the court : (R. C. A. 1867, s. 18.) A scheme under the Railway Oompanies Act, 1867, shall be enrolled in the enrolment department of the Oentral Office : (O. LXIV., April, 1880.) (r) Notice of Enrolment. Notice of the .... enrolment of the scheme shall be published in the Gazette : (R. 0. A. 1867, s. 19.) (s) Effect of En/rolled Scheme. [After enrolment the scheme] shall be binding and effectual to all intents, and the provisions thereof shall, against and in favour of the company and all parties assenting thereto or bound thereby, have the like effect as if they had been enacted by Parliament : (R. 0. A. 1867, s. 18.) The only persons bound are the majority and minority of classes whose votes are to be taken, and the scheme is not binding on unpaid land- owners, or outside, that is general, creditors : {Be Cambrian Railways CoTwpamy, L. Rep. 3 Ch. App. 278.) But such creditors do not gahi any rights of priority over those who have assented to the scheme, and had previously rights prior to such creditors : {Stevens v. Mid-Hants Railway Company, L. Rep. 8 Ch. App. 1064.) Companies — Oompromise. 191 3. Appointment op Rbcbivbr. The court may appoint a receiver, at the instance of a mortgagee, of tolls of a company or corporation, iudependently of any Act of Parlia- ment : (Seton, 434.) As to the appointment of a receiver on behalf of debenture holders, see 46 & 47 Vict. c. 118, ss. 25—6, and Seton, 435. The court had power, under the 4th section of the Railway Companies Act, 1867, to appoint a receiver or manager of the undertaking of a railway company, on the application by petition of a judgment creditor issuing execution ; but it is doubtful whether the power still exists under that statute. The practice was under rules 29, 30, and 31, of the Chancery Order of the 24th January, 1868. 4. Pkohibition to Railway Commissionbes. The court has jurisdiction to issue a writ of prohibition restraining the Railway Commissioners f/om making and enforcing improper orders as to railway companies : {Toomer v. London, Chatha/m, and Dover Railway Company, LI Rep. 2 Ex. Div. 450; Warwick, &c., Navigation v. Birmingham Caned Navigation, 40 L. T. Rep. N. S. 846 ; South Eastern Railway Company v. Railway Commissioners, 41 L. T. Rep. N. S. 760 ; Sedley v. Bates, L. Rep. 13 Oh. Div. 498; 42 L. T. Rep. N. S. 41 ; 28 W. R. 365.1 '5. Deposits in Coitet. See, generally. Payment into and out op OotrKT. As to application of deposit on the abandonment of a railway, see sup. 1. XII. TRAMWAY COMPAJSTIES. Deposits in court by. [See Payment into and out op Oouet.] COMPROMISE. I. WHO MAT ENTEB INTO, n. HOW ENTEEED INTO. in. WITHDEAWAL FEOM AND SETTING ASIDE. IV. ENPOECING. I. "WHO MAT ENTER INTO. The directors of an unlimited company may enter into a compromise : {Dixon v. Evams, L. Rep. 5 E. & I. App. 606.) A limited company has the same power, as incident to its existence : {Bath's Case, L. Rep. 8 Ch. Div. 334.) A married woman cannot bind her real estate by a mere agreement for compromise : {Nicholl v. Jones, L. Rep. 3 Bq. 196) ; but she may bind even the corpus of her separate property, although restrained from anticipation {Wilton v. Hill, 26 L. T. Rep. O. S. 253 ; 25 L. J. 156, Oh.) ; and she may with the sanction of the court compromise a suit to make trustees liable for a breach of trust as to a fund in which she has a rever- sionary interest : {Wall v. Rogers, L. Rep. 9 Eq. 58.) A trustee in bankruptcy or liquidation having power to sue either in his own name, or in his official name under sect. 83, sub-sect. 7, of the Bank- ruptcy Act, 1869, possesses a power to compromise an action instituted by him in his capacity of trustee, as, for instance, by consenting to an order being made in the action giving him less than he originally claimed, with- 192 Gomprondse. out the sanction of the Bommittee of inspection : (LeemAng v. Lady Murray, L. Rep. 13 Gh. Div. 123 ; 28 W. R. 338.) .The court may compromise the rights and claims of infants and persons under disability, where those rights are merely equitable, and may direct the trustees to deal with the trust property in whatever mode it may con- sider to be for the benefit of the cestuis que trustent under disability : {Brooke v. Lord Mostyn, 2 D. J. & S. 373, 415 ; L. Rep. 4 E. & I. App. 304 ; and see Stainton v. Carron Company, 6 Jur. N. S. 360 ; 7 Jur. N. S. 360.) Counsel and solicitors may enter into a binding compromise on behalf of their client, of matters within the scope of the proceedings, unless expressly prohibited from doing so : {Strauss v. Francis, L. Rep. 1 Q. B. 379 ; 14 L. T. Rep. N. S. 326 ; Prestwich r. Foley, 18 C. B. N. S. 806 ; 34 L. J. 189, C. P. ; 12 L. T. Rep. N. S. 390 ; Swinfen v. Swinfen, 27 L. J. 35, 491, Oh. ; Fray v. Voules, 1 El. & El. 839.) A compromise entered into hona fide by the other side is not invalid if the client s dissent has not been brought to the opposite party's know- ledge at the time : '{Strauss v. Francis, swp.) ; Brady v. Cv/rran, Ir. Rep. 2 C. L. 314 ; Berry v. Mullen, Ir. Rep. 5 Eq. 368.) II. HOW ENTERED INTO. The compromise may be effected,- in ordinary cases, by an agreement between the parties {Eden v. Naish, L. Rep. 7 Oh. Div. 781); or by an order made by consent {Attorney-Oeneral v. TomUne, L. Rep. 7 Ch. Div. 388 ; Davis v. Davis, L. Rep. 13 Ch. Div. 861 ; 41 L. T. Rep. N". S. '790 ; 49 L. J. 241, Ch. ; Salt v. Jesse, L. Rep. 3 Ch. Div. 177) at the trial, or on an interlocutoiy application, or an appeal, embodying the terms of the agreement (Seton, 1536), whether previously come to or then arranged. If the terms are embodied in an agreement, an interlocutory applica- tion for a consent order may be made by motion or summons. If the facts are complicated, or infants or other persons under dis- ability are interested, the application should be by petition : (Dan. 1434 ; Seton, 1536, 716.) A married woman should be made a respondent to such a petition, and should appear thereon separately from her husband : {WoIIy. Rogers, sup.) In the case of a person under disability, the court will order an inquiry whether the compromise is beneficial : (Seton, 1536.) III. WITHDRAWAL FROM AJSTD SETTING ASIDE. A consent to an order if given through inadvertence may be with- drawn before the order is drawn up {Holt _y. Jesse, swp.; Attorney- General v. Tomline, svp.) ; but not when the compronaise has been entered into after discussion of the case, with the concurrence of counsel and solicitors and the approval of the court : {Davis v. Davis, sup.) After judgment by consent has been passed and entered, it cannot be set aside on the ground of mistake, except for reasons sufficient to set aside an agreement : {Attorney-General v. Tomline, sup. ; and quaere, whether it can be set aside on any ground but fraud, 2 D. J. & S. 416 ; Stainton v. Carron Company, sup.) Where a judgment by consent embodying a compromise has been obtained by misrepresentation or concealment of material facts, a new action must be commenced to set it aside : {Gilbert v. Fndean, L. Rep. 9 Oh. Div. 259 ; 39 L. T. Rep. N. S. 404.) Where the order by consent has been made on an interlocutory appli- cation, the court may discharge it for mistake, though on one side only, Compromise-^— Gonfirmation of Sales, 8fc. 193 by motion in the action, although the order has been passed and entered : {Mullins y. Howell, L. Eep. 11 Ch. Div. 763.) It isdoubtful whether a compromise sanctioned on behalf of an infant can be set aside for grounds which would be sufficient as between parties suijwris (per Turner, L. J., Brooke v. Lord Mostyn, sv/p.) TV. ENFORCING. Where an agreement for compromise has been entered into, but no consent order has been obtained, and one party repudiates the agreement, the court may stay proceedings iu the action on summons or motion : {Eden T. Naish, L. Rep. 7 Ch. Diy. 781 ; Potter v. Jackson, W. N. 1878, p. 134; Prestwich v. Poley, sv/p.) Where the compromise involTes matters in an action pending in another division, the Chancery Division may, on motion, make an order on the party repudiating the compromise, enforcing the whole compromise : {Scully v. Lord Dundonal^, IL. Rep. 8 Ch. Div. 658 ; 39 L. T. Rep. N. S. 116.) Where a party attempted to withdraw from a compromise before the consent order embodying it was drawn up, an order wds made on motion that such party " do, within four days' service of this order, leave, or cause to be left, at the office of the registrar, the counsel's briefs mentioned in the notice of motion, and further that the registrar do draw up the order accordingly " : {Davis v. Davis, sii/p.) Where a person has submitted to have his rights determined in a winding-up, an order for payment may be made on him, in the winding- up, in the terms of an agreement for compromise entered into by him with the liquidator: {Be Gaudet Freres Steamship Company, L. Rep. 12 Oh. Div. 882.) Where an undertaking has been embodied in a consent order, the court may enforce it by attachment : {Mullins v. Sowell, svp.) CONDITIONS OF SALE. [See Pkopeett.J CONFIRMATION OF SALES, &c. I. DISPOSITION OF LAND OE MINEEALS. 1. PowBE TO Dispose of, with Coubt's Sanction. 2. Pbtition poe Sanction. 3. Obdeb. n. SAIB OF LAND WITH TTMBEE. I. DISPOSITION OP LAND OR MINERALS SEPARATELY. 1. PowEE TO Dispose of, With Cotjet's Sanction. Every trustee and other person [on the 7th August, 1862, or thereafter} to become authorised to dispose of land by way of sale, exchange, parti- tion, or enfranchisement may, unless forbidden by the instrument creating^ the^trust or power, so dispose of such land with an exception or reservation of any minerals, and with or without rights and powers of or incidental to the working, getting, or carrying away of such minerals, or may (unless forbidden as aforesaid) dispose of by way of sale, exchange, or partition the minerals with or without such rights or powers separately from the residue of the land, and in either case without prejudice to any future 194 Confirmation of Sales, &c. exercise of the authority with respect to the excepted minerals, or (as the case may be) the nndisposed-of laiid ; but this enactment shall not enable any such disposition as aforesaid without the previous sanction of the [Chancery Division] : (26 & 26 Vict. c. 108, s. 2 ; and see Settled Estates.) As to what are minerals, see cases cited Dart, 69. 2. Petition poe Sanction. [The sanction must] be obtained on petition, in a summary way, of the trustee or other person authorised as aforesaid : (Id.) Mortgagees may petition : {Be Beaumont's Mortgage Trusts, L. Rep. 12 Eq. 86) ; although they are in possession, and have commenced a fore- closure action and set down the action for hearing on motion for judgment {Be Wilkinson's Mortgaged Estates, L. Rep. 13 Bq. 634.) The petition must be intituled in the matter of the Act : (Jd.) "When the petition is presented by trustees, the eestuis que trustent ought to be made parties : {Be Palmer's Will, L. Rep. 13 Eq. 408, where they were made co-petitioners) ; but when the trustees have a power of sale with consent of the tenant for life, the persons entitled in remainder need not be served : {Be Pryse's Estates, L. Rep. 10 Eq. 631 ; Be Nagle's Trusts, L. Rep. 6 Ch. Div. 104.) Where mortgagees with a power of sale are petitioners, subsequent mortgagees need not be served : {Be Beaumont's Mortgage Trusts, swp.) : nor need the mortgagor : {Be Wilkinson's Mortgaged Estates, sup.) 3. Oedeb. [The] sanction once obtained shall extend to the enabling from time to time of any disposition within this enactment of any part or parts of the land comprised iu the order to be made on such petition, without the necessity of any further or other application to the court : (26 & 26 Vict, c. 108, s. 2.) The court may give a general direction that persons having powers of sale or exchange in a settlement or wiU may exercise the powers as if they authorised the reservation or separation of mines : {Be Wynn's Deoised Estates, L. Rep. 16 Eq. 237 ; 28 L. T. Rep. N. S. 615 ; Be Wilhoay, 32 L. J. 226, Oh.) II. SALE OF LAIfD WITH TIMBER. Where under a power of sale a bond fide sale shall be made of an estate with the timber thereon, or any other articles attached thereto, and the tenant for life or any other party to the transaction shall by mistake be allowed to receive for his own benefit a portion of the purchase money as the value of the timber or other articles, it shall be lawful for the court upon any [action] or application in a summary way, as the case may require or permit, to declare that upon payment by the purchaser, or the claimant under him, of the full value of the timber and articles at the time of sale, with such interest thereon as the court shall direct, and the settle- ment of the said principal moneys and interest under the direction of the court upon such parties as in the opinion of the court shall be entitled thereto, the said sale ought to be established : (22 & 23 Vict. c. 35, s. 13 ; and see Settled Estates.) Upon such payment and settlement being made accordingly the court may declare that the said sale is valid, and thereupon the legd estate shal vest and go in like manner as if the power had been duly executed : {Id.) The costs of the .... application as between solicitor and client shall be paid by the purchaser or the claimant under him {Id.); unless the «ourt in its discretion thinks fit to order otherwise : (see Costs.) Consolidation. 195 CONSOLIDATION. I. WHERE ORDERED, n. APPLICATION. 1. When hade. ^ 2. Bt whom made. 3. How MADE. m. HOW ACTIONS CONSOLIDATED. 1. Whebb aqainst one Dependant. 2. Wheee against seteeaii Defendants. IV. EFFECT OF CONSOLIDATION. V. OPENING CONSOLIDATION ORDER. I. WHERE ORDERED. Actions in any division or divisions may be consolidated by order of the court or a judge in the manner heretofore in use in the superior courts of common law (0. LI., r. 4) ; that is to say, where two or more actions are commenced by the same plaintiff — (1) Against the same defendant for what was substantially the same cause of action, or for causes of action, that might have been conveniently joined in one action, if the double proceedings were vexatious or oppres- sive; or (2) Against different defendants; where the questions in issue were substantially the same : (Ohitty's Aich. Pract., 13th edit. 1086-6.) The Chancery Division possesses the general discretion possessed by the Court of Chancery over the conduct of proceedings, and will find some means of exercising it : {Amos v. Ghadwick, L. Rep. 4 Ch. Div. 872.) Actions maybe consolidated though pending in different divisions of the court. n. APPLICATION. 1. When Made. The application may be made at any time after appearance (Hollings- worth V. Brodrick, 4 A. & E. 646) ; and even after notice of trial given : (Ch. Arch. 1087.) 2. By Whom Made. The application can only be made on the defendants' application {Amos V. Ch(idwieJe, L. Rep. 4 Ch. Div. 869). But where a number of different plaintiffs bring actions against the same defendants, the court may allow the plaintiffs time to take the next step ia all the actions but one, on condition that if they fail in that one, the others shall be dismisBed : {Id. ; and see Bermett v. Lord Bury, 42 L. Rep. N. S. 480.) 3. How Made. The application may be by motion or summons, and is generally by summons intituled in aU the actions : {Srmth v. Whichcord, 24 W. R., 900; Ch. Arch. 1087.) III. HOW ACTIONS CONSOLIDATED. 1. Wheee against One Defendant. Where all the actions are against the same defendant, all of them but one may be stayed absolutely, and theplaintifE ordered to join the whole of his clauns Iq that one : (See Ch. Arch,; Wilson, 304.) 2. Wheeb|against dipfeeent Defendants. Proceedings in all actions but one are stayed, the defendants under- o 2 196 GonsoUdation — Conveyancing Gounsel. taking to be bound by the ultimate result of that action (Oh. Arch., 1087), that is, such a verdict or judgment as the court thinks ought to stand as a filial determination of the matter : {Sodson v. Richardson, 3 Bur. 1478.) IV. EFFECT OF CONSOLIDATION". The order, when there are several defendants, binds the defendants, but not the plaintifE. The plaintiff may, unless he has agreed to be bound by the result of the first action, if unsuccessful, proceed with another, but he thereby loses the benefit of the consolidation, and if he succeeds in the second action, the result does not bind the other defendants : {Boyle v. Douglas, 4 B. & Ad. 544.) When the plaintiff in an action which had been made a test action, refused to proceed, the action was dismissed : (Bohinson t. Chadwick, L. Eep. 7 Oh. Div. 878 ; 39 L. T. Rep. N. S. 50; 47 L. J. 607, Oh. ; 26 W. B. 556.) But in such a case the court may substitute another of the actions as a test action : {Amos v. Chadwich, L. Bep. 9 Oh. Div. 469.) T. OPENING CONSOLIDATION OBDEB. The court wiU not generally open a consolidation order. If it does, it will only be on such terms as are requisite for attaining the merits : {Foster T. Alvez, 3 Bing. N. 0. 896 ; Cohen v. Bulkeley, 5 Taunt. 165.) [And see Ajjministkation, Stating Peocbedings, Tbausfee.] CONTEMPT OF COURT. [See Ajbeest.] CONVEYANCING COUNSEL. I. POWER TO EEPEE MATTERS TO. n. DISTRIBUTION OP BUSINESS. in. HOW MATTERS REFERRED. IV. OBJECTING TO OPINION. V. PEES. VI. EXPENSES OP EMPLOYING OTHER COUNSEL. L POWEB TO BEPEB MATTEBS TO. It shall be lawful for the court or for any judge thereof when sitting at chambers to receive and act upon the opinion of [the] conveyancing counsel [of the court] in all cases in which, according to the practice [prior to 1852, it was] usual for the master to require or receive the opinion of conveyanciag counsel for his aid and assistance in the iovestigation of the title to an estate, with a view to an investment of money in the purchase or on mortgage thereof, or with a view to a sale thereof or in the settlement of a draft of a conveyance, mortgage, settlement, or other instrument or otherwise, and in such other cases as [Orders of Court] direct : (15 & 16 Vict. c. 80, s. 40.) The court may, in its discretion, require the assistance of such counsel, or act without it : (Dan. 1046.) n. DISTBIBUTION OF BUSINESS. The business to be referred to the conveyancing counsel shall be Conveyancing Counsel. 197 distributed among such counsel in rotation by the first clerk to the registrars for the time being, and during the occasional or necessary absence by the second clerk to the registrars for the time being, and during the occasional or necessary absence of both such clerks, then by such one of the other clerks to the registrars as the senior registrar for the time being may nominate for that purpose : (C. O. 2, r. 1.) [Tins does not] interfere with the power of the court, or of the judge at chambers, to direct or transfer a reference to any one in particular of the said conveyancing counsel, where it appears to the court or the judge to be expedient : (0. O. 2, r. 5.) The court will not generally direct a reference to one counsel in particular : (Morg. & Chute, 134.) When the reference is to a particular counsel the minutes need not be taken to the registrar's clerk : (Dan. 1047.) The clerk making such di|tribution shall be responsible for the business being distributed according to regular and just rotation, and in such manner as to keep secret from aU persons the rota or succession of conveyancing counsel to whom such business may be referred; and it shaU. be his duty to keep a record of such references, with proper indexes, and to enter therein all such references, with the dates when the same are made : (0. 0. 2, r. 2.) In case the conveyancing counsel in rotation shall from illness or from any other cause be unable or decline to accept any such reference, the same shall be offered to the other conveyancing counsel .... successively, according to their seniority at the Bar, until some one of them shall accept the same : (C. O. 2, r. 4.) in. HOW MATTERS REFERRED. When the court or a judge at chambers directs any business to be referred to any such conveyancing counsel, a short memorandum or minute of such direction shall be prepared and signed by the registrar if the same shall have been given in court, or by the judge's chief clerk, if given in chambers ; and the party prosecuting such direction, or his sohcitor, shall take such memorandum or minute to the registrar's clerk whose duty it is to make such distribution as aforesaid ; and such clerk shall add at the foot thereof a note specifying the name of the con- veyancing counsel in rotation to whom such business is to be referred ; and such memorandum or minute shall be left by the party prosecuting such direction, or his solicitor, with such conveyancing counsel, and shall be a sufficient authority for biTn to proceed with the business so referred : (0. 0. 2, r. 3.) 'No order is necessary, but the case will be adjourned in order that the opinion may be procured : (Ayck. 503.) [See also Deeds, Peopebtt.] IV. OBJECTLNG TO OPINION. It shall be ... . competent for any party to object to any opinion of any such counsel when he shall deem it open to objection, and thereupon the point in dispute shall be disposed of by the court, or by the judge sitting in chambers, according to the nature of the case : (15 & 16 Yict. c. 80, s. 40.) Although the conveyancing counsel is in a sense the officer of the court, the party employing him is responsible for his mistakes : (Be Banister, L. Rep. 12 Ch. Div. 131.) V. FEES. The allowances in respect of fees to such conveyancing counsel .... 198 Conveyancing Goimsel — Copies. shall be regulated by the taxing master of the said court, subject to an appeal to the judge to whose court the cause or matter shall be attached, whose decision slml be final : (15 & 16 Vict. c. 80, s. 43.) 'VI. EXPENSES OP EMPLOTESTG OTHER COUNSEL. Where, in pursuance of any direction by the court or a judge in chambers, drafts are settled by any of the conTeyaneing counsel of the court, the expense of procuring such drafts to be previously or subsequently settled by other counsel on behalf of the same parties on whose behalf such drafts are settled by the conveyancing counsel of the court, shall not be allowed on taxation as between party and party, or as between solicitor and client, unless the court or the judge ia chambers shall other- wise direct : (0. O. 40, r. 30 ; and see Be Morgan Jones, 6 W. R. 762 ; Nicholson v. Jeyes, 1 Sm. & G. App. xiii. ; cited Morg. & Chute, 136.) COPIES. I. OFFICE COPIES. 1. Pbepaeation. a. FuKNISHINa TO OTHBE PARTIES [866 pOst, II.]. 3. Peodtjction on Pkocbedinos. n. FUENISHING COPIES TO OTHER PARTIES. 1. Written Copies. (a) Doewments m Possession. (6) Documents Filed or Prega/rei. (1) Who famislies. (2) AppUcation for. (3) Delivery.. (4) Particulars as to Copies. (5) Neglect to Purmsh. (6) Charges. 2. Printed Copies. (a) Who fiumishes. (b) Demand for, and Nwmber Fmrmished. , (c) Payment. (d) Particulars as to Copies. 1. OPPICB COPIES. 1. Pkepaeation. The party by or on whose behalf any deposition, af&davit, or certificate is filed, shall leave a copy with the officer with whom the same is filed, who shall examine it with the original and mark it as an office copy ; such copy shaU be a copy printed where such deposition or affidavit is to be printed : (Add. R., Aug. 1876, O. V., r. 6 ; and see Evidence.) The folios of all printed and written office copies .... ^all be numbered consecutively in the margin thereof, and such written copies shall be written in a neat and legible manner on the same paper as in the case of printed copies : (Add. R., Aug. 1875, O. V.), r. 13: and see »osi, n. 1, (6), (4).) 2. FUENISHING TO OTHEK PaeTIES. [See^osi, II.] 3. Pboduction on Peoceedings. The party or solicitor who has taken any printed or written office copy of any deposition or affidavit is to produce the same upon every proceeding to which the same relates : (Add. R., Aug. 1875, O. V., r. 7.) Copies. 199 n. FUBNISHmG COPIES TO OTHER PARTIES. 1. Weitten Copies. (a) Documents in Possession. As to taking copies of docnments in possession of another party, or extracts therefrom, under Rules of Court or any special order, the party entitled to take the copy or extract is to pay the solicitor of the party producing the document for such copy or extract as he may by writing require, at the rate of 4c?. per folio ; and if the solicitor of the party producing the document refuses or neglects to supply the same, the solicitor requiring the copy or extract is to be at liberty to make it, and the solicitor for the party producing is not to be entitled to any fee in respect thereof : (Add. R., Aug. 1875, Sp. All., r. 16.) (6) Docwments Filed or Prepared. (1) Who Furnishes. Where any party is entttled to a copy of any deposition, affidavit, proceeding or document, filed or prepared by or on behalf of another party, wmch is not required to be printed, such copy shall be furnished by the party by or on whose behalf the same has been filed or prepared : (Add. R., Aug. 1875, O. Y., r. 8.) (2) Amplication for. The party requiring any such [written] copy, or his solicitor, is to make a written application to the party by whom the copy is to be furnished, or his sohcitor, with an undertaking to pay the proper charges : (Add. R., Aug. 1875, O. v., r. 9.) (3) Delivery. [On such application] such copy is to be made and ready to be delivered at the expiration of twenty-four hours after the receipt of such request and undertaking, or within such other time as the court or judge may in any case direct, and is to be furnished accordingly upon demand and payment of the proper charges : (Add. R., Aug. 1875, O. V., r. 9.) This applies to office copies. As to affidavits, on an ex parte application for an injunction or vmt of ne exeat regno, see Injunction ; Aeeest II., 2, {d.). (4) Particulars as to Copies. The name and address of the party or solicitor by whom any copy is famished is to be indorsed thereon in like maimer as upon proceedings in court, and such party or solicitor is to be answerable for the same being a true copy of the original, or of an office copy of the original, of which it purports to be a copy, as the case may be : (Add. R., Aug., 1875, O. V., r. 12.) The folios of all ... . written office copies, and copies delivered or furnished to a party, shall be numbered consecutively in the margin thereof, and such vrritten copies shall be vmtten in a neat and legible manner on the same paper as in the case of printed copies : (Add. R., Aug. 1875, O. v., r. 13.) The paper is cream wove machine drawing foolscap folio paper, 191b. per mill ream, or thereabouts, and there must be an inner margin of about three-quarters of an inch wide, and an outer margin of about two inches and a half wide : (O. LVI., r. 2.) [The note at the foot of every affidavit filed, stating on whose behaM it is so filed] shall be copied on every office copy and copy furnished to a party: (Add. R., Aug. 1875, O. V., r. 11.) (6) Neglect to Furnish. In case any party or solicitor who shall be required to furnish any 200 Copies — Copyhold Acts. such written copy as aforesaid shall either refuse or, for twenty-four hours from the time when the application for such copy has been made, neglect to furnish the same, the person by whom such application shall be made shall be at liberty to procure an office copy from the office in which the original shall have been filed, and in such case no costs shall be due or payable to the solicitor so making default in respect of the copy or copies so applied for : (Add. R., Aug. 1875, O. Y., r. 14.) (6) Charges. The party entitled to be furnished with a print shall not be allowed any charge in respect of a written copy unless the court or judge shall otherwise direct': (Add. E., Aug. 1875, O. V., r. 5.) 2. Feinted Copies. (as) Who Furnishes. Where, by any order of the court (whether of appeal or otherwise), or a judge, any pleading, evidence, or other document is ordered to be printed, the court or judge may order .... printed copies to be furnished, by and to such parties and upon such terms as shall be thought fit : (Add. R., Aug. 1875, O. V., r. 15.) (b) Demand for, and Number Furnished. The party printing shall, on demand in writing, furnish to any other party or his solicitor amy number of printed copies, not exceeding ten : (Add. R., Aug. 1875, O. Y., r. 3.) (c) Payment. [The copies will be furnished] upon payment therefor at the rate of Id. per folio TOr one copy, and id. per folio for every other copy : (Id.) The solicitor of the party printing shall give credit for the whole amount payable by any other party mr printed copies : (Add. R., Aug. 1875, O. v., r. 4.) (d) Pa/rticula/rs as to Copies. The name and address of the party or solicitor must be indorsed, as in the case of written copies : (see sup. 1 (6) (4).) The folios of all printed .... copies delivered or furnished to a party, shall be numbered consecutively in the margin thereof : (Add. R., Aug. 1876, O. v., r. 13.) ^ ^ [The note at the foot of every affidavit filed, stating on whose behalf it is so filed] shall be. printed on every printed copy of an affidavit or set of affidavits .... furnished to a party : (Add. R., Aug. 1875, O. V., r. 11.) COPYHOLD ACTS. I. PAYMENT OF EBTFEAJSTCHISEMENT MONET INTO COUET. 1. In what Cases. 2. To what Account. n. INVESTMENT. in. PAYMENT OE DIVIDENDS. IV. HOW MONET APPLIED. V. APPLICATIONS. VL MONET NOT TO BE PLACED ON DEPOSIT. I. PAYMENT OF ENFRANCHISEMENT COMPENSATION INTO COURT. 1. In What Cases. [The Commissioners may direct the enfranchisement consideration to be paid into court] : Gopyhold Acts. 201 (1) If [they] consider .... that [the eTidence as to the lord's title] does not fully and truly disclose all such particulars as are necesary ; or if no ... . declaration [as to such title] shall he made ; or if the lord shall refuse or decline or fail to giye such information and evidence as they shall deem proper and necessary to show a satisfactory prvmd fade title in the lord, or in persons claiming under or in trust for him; And the .... Commissioners shall consider either that the title of the lord is not satisfactory, or that the incumbrancers should be protected ; and they think that the justice of the case requires it (15 & 16 Vict. c. 51, s. 22) ; (2) In all cases in which the person for the time being entitled to any rentcharge subject to be redeemed or sold under .... the Act, or entitled to any gross sum payable by way of compensation or enfranchise- ment, shall be only entitled thereto for a limited estate or interest therein ; or as trustee for sale, or otherwise, without power to give an efEectual discharge for the same, or ... , under disability, or .... a corporation not auSiorised to make an absolute sale of such rentcharge, otherwise than under [the Act] (15 & 16 Vict. c. 51, s. 39) ; or (3) If the lord refuse to receive the enfranchisement money : (21 & 22 Vict. c. 94, s. 13 ; and see 15 & 16 Vict. c. 51, s. 39, and 21 & 22 Vict. c. 94, ss. 15, 16, 17, as to payment to trustees or other persons instead of payment into court.) Any manor vested in Her Majesty in right of her crown in remainder or reversion expectant on sin estate of inheritance, and any hereditaments held of such manor, may, with the consent in writing .... of the Commis- sioners of Woods, Forests, and Land Revenues, or any one of them, be dealt with under the Copyhold Acts : (21 & 22 Vict. c. 94, s. 42.) 2. To WHAT ACCOTOT. Money .... paid into court pursuant to the Copyhold Acts shall be placed in the books at the Chancery Pay Office to the credit of " ex parte the Copyhold Commissioners," as directed by the said Acts, and in addition thereto to the account of the particular manor in respect of which the money is paid in : (Ch. P. B., 1874, r. 33.) In the case of Crown manors, the money was directed to be paid " em parte the Queen's Most Excellent Majesty," and the person for the time being entitled to the receipt of the rents and profits : (21 & 22 Vict. c. 94, s. 43.) In the request for a direction to receive such money, the name and locality of such partictdar manor shall be stated : (Ch. P. B., 1874, r. 33.) II. INVESTMENT. By order of the court, the money paid in, imtU applied, may be invested in the purchase of Consols, 31. per cent. Beduced Annuities, or in Govern, ment or real securities : (15 & 16 Vict. c. 51, s. 39.) In the case of Crown manors, the money may be ordered to be invested in Government or real securities : (21 & 22 Vict. c. 94, s. 44.) Notice of the application must be given to the Commissioners of Woods and Forests: {Id.) in. PAYMENT OP DIVIDENDS. The dividends or other income may be ordered to be paid to the person for the time being entitled : {Id. ; 15 & 16 Vict. c. 39.) IV. HOW MONET APPLIED. [The money may] be applied to some one or more of the following purposes : 202 Copyhold Acts — Costs. (1) The purchase or redemption of the land tax, and the discharge of any rent or incumbrance aiEecting the rentcharge in respect of which [the money was paid in], or the material incidents for which the same [has] been substituted, or afEecting other heredita- ments settled therewith to the same or the like uses, &c. ; (2) The purchase of other lands, to be conveyed, limited, and settled upon the lite uses, &c., as the rentcharge for the redemption of which such money has been paid . . . . ; (3) Payment to any party becoming absolutely entitled to such money : (15 & 16 Tict. c. 51, s. 39.) In the case of Crown manors, the money is to be applied to the purchase or redemption of land tax, or the purchase of land of fee simple tenure, and convenient to be held with the settled estates ; and any land purchased is to be settled to such uses, &c., as will most nearly correspond with the former uses, &c. : (21 & 22 Vict. c. 94, ss. 44 and 45.) The application in the case of Crown manors must be by the person entitled to the rents and profits, notice being given to the Commissioners of Woods and Forests : (Id., a. 43.) In other cases the application may be made by the person who would have been entitled to the receipt of the rentcharge : (15 & 16 Vict. c. 51, s. 39.) V. APPLICATIONS. Applications under the Copyholds Acts respecting any securities or money in court, shall be made by summons at ... . chambers; but notice of any such application is not to be given to the Copyhold Com- missioners, except when the judge may so direct : (Ch. F. Am. O. 1874; r. 15.) VI. MONET NOT TO BE PLACED ON DEPOSIT. Money paid in under the Copyhold Acts is within the exception as to placing on deposit : (see Ch. F. R., 1874, r. 68 ; and Seton, 1470.) COSTS. I. SECTTEITT FOE. 1. In the Chanceet Division. (a) In what Cases. (1) Married Womsin. (2) Next Friend of Married Woman. (3) Plaintiff misdescribing himself. (4) Plaintiff out of Jurisdiction. (5) Company. (6) Liquidating Plaintiff. (7) In Place of Eemitting to Comity Court. (8) On Transfer from County Court. (9) On Eemoval by Certiorwri [see Cbetiobaki]. (10) In Action for Eeoovery of Land. (11) Petition to wind up Life Assurance Company- (b) For what Costs. (c) When Application madt. (d) How AppUcaiion made. (e) What Seewrity ordered. (/) How Security prepa/red. (g) ProceedAngs in default. 2. In the Couet of Appeai [see Appeal]. 3. In the House op Loeds [see Appeal]. IL PEOCEEDING FOE COSTS ALONE. Oosts. 203 ni. AWARDING COSTS. 1. Gensbai. BtTIjBS. (o) Discretion of the Court. (b) Costs out of the Estate. (c) Issue or Action tried by Jury. (d) Actions of Contract cmd Tort. (e) AppUcation of Former Procedwre. (/) On Appeal [see Appeal]. • (ff) Orders, (h) Scales on which allowed. (1) Lower Scale. (2) Higher Scale. (3) Power to Direct as to Scale allowed. (4) Certificate. 2. Special. Eules and Allowances (Alphabetically arranged), IV. TAXATION. 1. On what Peinciplb conducted. 2. Peepabation of Bill op Costs. 3. To WHAT Taxino Master eepbbbbd. 4. LBAVIN& Documents with Taxino Mastee. (a) Where there has been previous Taxation. (b) Where no previous Taxation. 5. Wabeant to Tax. 6. Phenishing Copies op Bill. 7. GoiNo theotjgh Bills bbpobb Taxation. 8. The Taxation. (a) Directions as to Attendance. (6) Refusal to bring m Costs. (c) Failure to attend, (d) General Powers a/nd Duties. (e) Signature of Bill. (/) Certificate of Taxation. (g) Proceedings on Direction m case F'airties differ. 9. Ebview op Taxation. (a) By Taxing Master. (6) By Judge [see Appeal]. 10. In Disteiot Eboistbt [see swp. HI., 2]. (4) After Payment. (5) " Special Circnmstances." (6) Special Directions. (c) Evidence. (d) What Costs allowed. (e) The Taxation. (1) Befusal to Attend. (2) Assistance of other Taxing Officers. (3) Certificate of Taxation. (4) Special Certificate. (/) Oosts of Reference. (g) Ordering Judgment to be entered. V. DELIVEET OP BILL AND TAXATION UNDER 6 & 7 VICT. c. 73. 1. DBLnnBBT OP Bill. (a) To be One Month before Action. (6) Authorising Action before the Month. (c) Signature to Bill. (d) Ordering Delivery. 2. Repebence poe Taxation. (a) Application to Tax. (1) How made. (2) By Whom made. 204 Costs. (b) Order oj Reference. (1) Generally. (2) After Verdict or Writ of Inquiry. (3) After Twelve Months. VI. CHARGE FOE COSTS [see Solicitor]. VII. UECOVEET OF. VIII. APPEAL FKOM OEDEE AS TO [see Appbat..] I. SBOURITT FOB COSTS. 1. In the Ohanceet Division. (a) In what Cases. (1) Married Woman. [When married women are allowed to sue or defend withont their lusbands, and without a next friend they must give] such security (if any) Jor costs as the court or a judge may require : (O. XVI., r. 8.) When the married woman has ample means she will not be required to give security : ^Noel v. Noel, L. Rep. 13 Oh. Div. 510 ; 42 L. T. Rep. N. S. 352.) (2) Next Friend of Married Woman. If the next friend of a married woman is in insolvent circumstances, the court may order the proceedings to be stayed until he gives security for costs : (Dan. 104) (3) PlaintifE Misdescribing Himself. Security has been ordered. Where the plaintifE had left his residence, and no information could be obtained as to his abode ; Where the plaintifB was not to be met with at the place described, and was keeping out of the way to avoid process ; Where the plaintiff wilfully misrepresented his address : (Ayck. 433.) (4) PlaintifE out of Jurisdiction. If a sole plaJntifE, or all the plaintiffs, reside out of the iurisdietion of -the court, the defendant is entitled to an order for security for costs, and -that until it is given all proceedings may be stayed : (Dan. 28 ; Ayck. ' 432 ; 1 Tidd's Practice, 575 ; Republic of Costa Rica v. Erlanger, L. Rep. 3 Oh. Div. 62 ; 45 L. J. 743, Oh.) Generally, if any one of the plaintifEs is within the jurisdiction, jsecurity will not be ordered : [Walker v. Hasterley, 6 Yes. 612 ; but see Sanmer v. Mangles, 12 M. & W. 313.) Since the passing of the Judgments Extension Act, 1868 (31 & 32 Vict, c. 54) a plaintiff in Scotland is not required to give security {Raebv/m v. Andrews, L. Rep. 9 Q. B. 120) ; nor is a plaintiff in Ireland : (See Day, C. L. P. Acts.) The residence abroad must be of more than a temporary nature : (Cole V. Beale, 7 Moore, 613; Taylor v. Fraser, 2 Dowl. 622; Sturla v. Frecehia, W. N. 1877, pp. 166, 188.) Security wfll not be ordered where the plaintiff is serving abroad in the army or navy : (Fvdyn v. Chippendale, 9 Sim. 497 ; Everinq v. Chiffenden, 7 Dowl. 536.) Service in the Indian Civil Service, or as a sessions judge in India, will not disentitle the defendant to his order : (Plowden v. CammheU, 23 L. J. 384, Q. B.) A peer who is out of the jurisdiction may be called upon to give security : [Aldboroitgh v. Bv/rton, 2 M. & K. 401 ; 6 T. R. 597 ; cited Ayck. 433.) A merely nominal plaintiff, in reality a defendant, who is abroad, wiU Oosts. 205 not be ordered to give security : (Belmonte t. Aynard, L. Rep. 4 0. P. Div.221,351; 27W. R. 789.) A foreigner, domiciled abroad, who has come into this countrv- for the purpose of suing, and intends returning after judgment, will not be ordered to give security : {Bedondo v. Chaytor, L. Rep. 4 Q. B. Div. 453 ; 40 L. T. Rep. N. S. 797 ; 27 W. R. 470.) The rule requiring the person abroad to give security only applies to a person instituting proceedings, and not to a defendant or respondent brought into court to defend himself : {Be Percy, &c., Gompany, L. Rep. 2 Oh. Div. 631 ; 45 L. J. 526, Ch.) A shareholder, resident abroad, appearing to oppose a winding-up petition, cannot be ordered to find security : {Id.) Where the defendant, a foreigner, set up a counter-claim in an action of collision, he was ordered to give security for costs generally {TheJulior Msher, L. Rep. 2 P. Div. 115 ; 36 L. T. Rep. N". S. 257 ; 25 W. R. 756) ; but where the defendant, a foreigner, set up a counter-claim with respect to the contract sued on by the plaintifE, the court refused to order him tO' find security : {Mapleson v. Masini, L. Rep. 5 Q. B. Div. 144 ; 28 W. R. 488.) Where a defendant admits a foreign plaintifE's cause of action, and sets up a counter-claim on a distinct claim, he is not entitled to security : {Wmterfield v. Bradnum, L. Rep. 3 Q. B. Div. 324; 38 L. T. Rep. N. S- 250 ; 47 L. J. 270, Q. B. ; 26 W. R. 472.) Security will be ordered in the case of applications by parties abroad — For conduct of the cause, although a defendant : (Ayck. 433). For taxation of a solicitor's biU (IS.) ; By petition, though not a party : {Id.) ; To vary chief clerk's certificate : {Polini v. Cfray. Malins, V.C, 27th June, 1878.) But a defendant, although out of the jurisdiction, is entitled to present a petition without giving security : (Ayck. 433, citing Cochrane v. Fea/ron,. 18 Jut. 568.) (5) Company. When a limited company is plaintifE .... in any action, suit, or other legal proceeding, any judge having jurisdiction in the matter may, if it appears by any credible testimony that there is reason to believe that if the defendant be successful in his defence the assets of the company will be insufficient to pay his costs, require sufficient security to be given f or such costs, and may stay all proceedings until such security is given : (25 & 26 Vict. c. 89, s. 69.) The fact that the company is in liquidation is sufficient : {Northampton Coal Company v. Midland Waggon Company, L. Rep. 7 Oh. Div. 500 ; 38 L. T. Rep. N. S. 82 ; 26 W. R. 485.) Security will not be ordered in the case of companies counter-claiming or taking proceedings in the nature of a cross action : {Accidental and Marine Insurance Company v. Macarty, L. Rep. 3 Bq., 200 ; Washoe- Miming Com/pam/y v. Ferguson, L. Rep. 2 Eq., 271 ; Western of Canada, &e., Company v. Walker, L. Rep. 10 Oh. App. 628.) Whenever an order absolute for winding-up a company has been made, if the company appeals without anyone else being made responsible for costs, the Court of Appeal wiU entertain an application for security : {Be Diamond Fuel Compan/y, L. Rep. 13 Oh. Div. 400 ; 49 L. J. 301, Oh.) (6) Liquidating Plaintiff. When a plaintiff has, after action brought, taken proceedings in liquidation, he will be ordered to give security : {Brocklebank v. King's 206 Goats. Lynn Sieamshw Gompcm/y, L. Rep. 3 0. P. Dit. 365 ; 38 L. T. Rep. N. S. 489 ; 47 L. J. 321, 0. P. ; 27 W. R. 94 ; Malcolm v. HodgUnson, L. Rep. 8 Q.B. 209.) (7) In Place of Remitting to OoTuity Court. The .... loth section of the County Courts Act, 1867, shall apply to all actions .... in the .... High Court of Justice in which any relief is sought which can he giTen in a County Court : (J. A., 1873, s. 67.) [On affidavit by any defendant in an action of tort] that the plaintifE has no visible means of paying the costs of the defendant should a verdict be not found for the plaintiff .... a judge of the court in which the action is brought [may] order that unless the plaintiflE shall, within a time to be thereia mentioned, give full security for the defendant's costs, or satisfy the judge that he has a cause of action fit to be prosecuted in the [High] Court, [proceedings] shall be stayed, or, in the event of failure, to satisfy the court or give security that the cause be remitted to a County Court : (30 & 31 Vict. c. 142, s. 10.) The time for giving security may be extended at any time before the defendant has lodged the writ and order at the County Court : {Welply v. Buhl, L. Rep. 3 Q. B. Div. 80, 253.) (8) On Transfer from County Court. Any [judge of the Chancery Division on granting an order at chambers for transfer of an equitable matter from a County Court may impose] such terms, if any, as to security for costs or otherwise, as he may think fit : (28 & 29 Vict. c. 99, s. 3.) Security may also be ordered on the transfer of other actions: (See 9 & 10 Vict. 0. 95, s. 90 ; 19 & 20 Viet. c. 108, s. 38.) (9) On Removal by Certiorari. [See Ceetioeabi.] (10) In Actions for Recovery of Land. If any person shall bring an action [for the recovery of land] jfter a prior action of ejectment for [or recovery of] the same premises has been or shall have been unsuccessfully brought by such person, or by any person through or under whom he claims, against the same defendants, or against any person through or under whom he defends, the court or a judge may, if they or he think fit, on the application of the defendant at any time after such defendant has appeared to the writ, order that the plaintiff shall give to the defendant security for the payment of the defendant's costs, and that all further proceedings in the cause shall be stayed until such security be given, whether the prior action has been or shall have l)een disposed of by discontinuance, or by nonsuit, or by judgment for the defendant : (17 & 18 Vict. c. 125, s. 93). Security may be ordered for costs both of the former proceedings and future costs : (Day, 3rd edit., 289.) (11) Petition to Wind-up Life Assurance Company. The court is not to give a hearing to a petition of one or more policy holders or shareholders under the Act of 1862 until security, for costs shall be given : (33 & 34 Vict. c. 61, s. 21 ; Re British AlUanoe Corpora- tion, 38 L. T. Rep. N. S. 600 ; 26 W. R. 628.) (6) For what Costs. _ Security wiQ generally be ordered for future costs only. If applica- tion is made promptly, the order will be for costs afco already incurred : {Brochleba/nik v. King's Lyrm, Stea/mship Commainy, swp. ; Massey v. .4Z?OT, L. Rep. 12 Ch. Div. 807.) Costs. 207 (c) When Application Made. The application for security shoiud be made by the defendant as soon after appearance as possible, and if he take any step after he has ascer- tained that he is entitled to security, he is, generally, deemed to have -vraiTed his right : (Ayck. 434 ; Dan. 30 ; Oh. Arch., 12th edit., 1406 ; Be Home Assurance Association (2), L. Rep. 12 Eq. 112 ; 19 W. R. 947.) But although a suit may have proceeded to a late stage without security for costs being applied for, yet where the statement of claim has been amended so as to introduce an entirely new case which requires additional and more expensive evidence, an appucation for security for costs wiU be -entertained : [Northampton Goal, &c.. Company v. Midland Waggon Company, L. Rep. 7 Oh. Div. 500 ; and see O. LV., r. 2, cited post (c), and Arhwr.ight v. Newhold, W. N. 1880, p. 59.) (d) How Application m,ade. The application is by motipn or summons. (e) What Security Ordered. In any cause or matter in which security for costs is reqtdred, the iseeurity shall be 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 : (0. LY., Feb., 1876.) The amount of security for costs is in the discretion of the court, and is no longer limited to lOOZ., even in case of the plaintiff being out of the iurisdiction :' {BepiMie of Costa Biica v. Erlanger, L. Rep. 3 Ch. Div. 62; 45 L.J. 743, Ch.) Malins, V.C. laid it down that lOOZ. security ought to be ordered in cases of plaintiffs being out of the jurisdiction {Paxton v. Bell, W. N. 1876, p. 221) ; and, with this exercise of discretion, the Court of Appeal refused to interfere {Id. 249) ; but when the judge, in the exercise of his discretion, proceeded on a principle which the Court of Appeal thought wrong, it exercised its own discretion : (Sturla v. Frecchia,W. N. 1877, pp. 166, 188.) (/) Sow Security Prepared. edt( " If security is ordered to be by bond, with a surety, the solicitor of the party ordered to give security furnishes the other party or his solicitor with the name and residence of the proposed surety, and if no objection is taken within two days the first-named solicitor prepares the bond : (Ayck. 434 ; Dan. 35.) Where a bond is to be given as security for costs, it shall, unless the court or a judge otherwise directs, be given to the party or person requiring the security, and not to an officer of the court : (O. LV., r. 3, April, 1880.) {g) Proceedings in Befa/uM. If a plaintiff fails to comply with an order to give security for costs, it is in the discretion of the court or a judge to dismiss the action, on motion to dismiss for want of prosecution: (De La Ghamge v. McAndrew, L. Rep. 4 Q. B. Div. 210 ; 39 L. T. Rep. N. S. 500; 48 L. J. 315, Q. B. ; 27 W. R. 413.) 2. In the Ooubt of Appeal. [See AppeaIj.] 3. In the House op Lobds. [See ApPEAii.] n. PROCEEDING FOR COSTS ALONE. Where the principal relief in an action has been conceded after action l>roiight, the plaintiff may go on for costs alone : (Stow v. Corporation 208 , Costs. of Maidstone, W. N. 1878, p. 218 ; per Fry, J., JRanJein v. Longhowrne, unreported.) III. AWARDING COSTS. 1. GeNEEAL RtJIiES. (a) Discretion of the Court. Subject to the provisions of the [Judicature] Acts, the costs of and incidental to aU proceedings in the High Court shall be in the discretion of the court : (O. LV.) The proceedings must have actually come into court : {Me Brandreth's Trade Ma/rTc, L. Sep. 9 Ch. Div. 618 ; 47 L. J. 816, Oh.) The costs are in the court's discretion in matters regulated by a statute which is silent, or provides otherwise, as to costs : {Ex pa/rte Mercers' Compcmy, L. Rep. 10 Oh. Div. 481.) (6) Costs out of the JEstate. Nothing .... contained [in the Judicature Acts or Rules] shall deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fond to which he would be entitled according to the rules hitherto acted upon in courts of equity : (O. LY.) Trustees who have been guilty of impropriety of conduct may be deprived of costs in the discretion of the court : {Be Hoshins' Trusts, L. Rep. 6 Oh. Div. 281 ; 46 L. J. 814, Oh.) (c) Issue or Action tried before Jury. Where any action or issue is tried by a jury, the costs shall follow the event, unless upon application made at the trial for good cause shown the judge before whom such action or issue is tried or the court shall other- wise order : (O. LV.) All statutes passed prior to the Judicature Acts, 1873, relating to costs, other than those expressly reserved by the 67th section, but including the 21 Jac. 1, c. 16, and 3 & 4 Vict. c. 24, are repealed : {Garnet v. Bradley, L. Rep. 3 App. Cas. 944 ; 39 L. T. Rep. N. S. 261 ; 48 L. J. 186, Bje. ; 26 W. R. 698.) A successful party may be deprived of his costs {Siddons v. Lawrence, L. Rep. 4 Ex. Div. 459), and ordered to pay the costs of the other side : {Harris v. Petherich, L. Rep. 4 Q. B. Div. 611 ; 41 L. T. Rep. N. S. 147 ; 48 L. J. 521, Q. B.) The application to the judge must be made at, or immediately after, the trial : {Bowey v. Bell, L. Rep. 4 Q. B. Div. 95 ; 39 L. T. Rep. N. S. 607; 48 L. J. 161 Q. B. ; Kynaston v. MacKvnder, 37 L. T. Rep. N. S. 390; 47L. J. Q. B. 16.) A mere negative proceeding on the part of the judge is not sufficient to deprive the party of costs : {King v. SawJeesworth, L. Rep. 4 'Q. B. Div. 373.) As to what is a sufficient application, see Turner v. Meylcmd, L. Rep. 4 C. P. Div. 432 ; 41 L. T. Rep. N. S. 556 ; 48 L. J. 533, 0. P. ; Collins V. Welch, L. Rep. 5 0. P. Div. 27 ; 41 L. T. Rep. N. S. 785. After the trial, unless immediately (e. jr., one hour) after, neither the judge who tried the cause, nor a judge at chambers, can make the order, but the application, if any, must be made to a Divisional Oourt {BaJcer v. Oakes, L. Rep. 2 Q. B. Div. 171 ; Bowey v. Bell, surp.,) which has an original jurisdiction in the matter:) Myers v. Defries, Siddons v. Lawrence^ L. Rep. 4 Ex. Div. 176.) The event is the result of all the proceedings incidental to the litigation : {Field V. Great Northern Railway Company, L. Rep. 3 Ex. Div. 261 ; 39 L. T. Rep. N". S. 80 ; 47 L. J. 662, Ex. ; 26 W. R. 817 ; Creen v. Wright, L. Rep. 2 0. P. Div. 354 ; 46 L. J. 427, 0. P.) Costs. 200 When in the same aotiaa the plaintiff obtains a verdict and judgment as to one cause of action, and the defendant obtains a verdict and judg- ment as to other and distinct causes of action, the word " event," is to be read distributively, and the defendant is entitled to tax his costs of the issues found for him, provided no order otherwise is made by the judge who tried the cause or the court : (Myers v. Defries, L. Rep. 5 Ex. Div. 15, 180; 42 L. T. Rep. N. S. 137 ; 48 L. J. 446, Ex. ; 28 W. R. 406.) (d) Actions of Contract and Tort. The provisions contained in the fifth .... sectionof the County Court Act, 1867, shall apply to all actions commenced or pending in the .... High Court of Justice in which any relief is sought which can be given iu a County Court : (J. A., 1873, s. 67.) If in any action commenced .... in [the High Court] the plaintiff shall recover a sum not exceeding twenty pounds if the action is founded on contract, or ten pounds if foufided on tort, whether by verdict, judgment by default, or on demurrer, or otherwise, he shall not' be entitled to any costs of suit unless the judge certify on the record that there was sufScient reason for bringing such action in such superior Court, or unless the court or a judge at chambers shall by rule or order allow such costs : (30'&31Tict. c. 142, d. 5.) This section does not apply so as to deprive a person of costs when his clium has been properly brought, as to amount, and only reduced by counterclaim to a sum. below 101. or 20Z. -. {Blahe v. Appleyccrd, L. Rep. 3 Ex. Div. 195 ; 47 L. J. 407, Ex. ; 26 W. R. 592"; P»tter v. Chambers, L. Rep. 4 0. P. Div. 457 ; 39 L. T. Rep. N. S. 350 ; Neale v. Clarke, L. Rep. 4 Ex. Div. 286 ; 41 L. T. Rep. IST. S. 438.) The amount iudorsed on the writ does not affect the question, the Act applying to all actions seeking relief of a kind which can be brought in a County Court : {Chatfield v. Sedgwick, L. Rep. 4 C. P. Div. 457.) Wben an order of reference made by consent, in an action founded on contract, provided that the costs of the certificate and award should be in the discretion of the arbitrator, who should awaird or certify by whom or to whom the same should be paid, and the arbitrator awarded 102. 3s. 4d. to the plaintiff, and directed that the defendant should pay to the plaintiff the costs of the reference and award, but did not certify that there was sufficient reason for bringing the action in' a Superior Court, it was held that the plaintiff was entitled to these costs without such a certificate : {Galatti v. Wakefield, 40 L. T. Rep. N. S. 30; 48 L. J. 70, Ex.-; and see Bwtherford v. WilUe, 41 L. T. Rep. N. S. 435.) (e) AppKeation of Former Procedwre. The roles, orders, and practice of any court whose jurisdiction ie trans- ferred to the High Court of Justice or Court of Appealr relating to costs, and the allowance of the fees of solicitors and attorneys^ and the taxation of costs, existing prior to the commencement of the Act, shall, in so far as they are not inconsistent with the Act, and the Rules of Court in pursuance thereof, remain in force and be applicable to costs of the same or analogous proceedings, and to the aUowance of the fees of solicitors of the Supreme Court and the taxation of costs; in the High Court of Justice and- Comrt of Appeal' : (Add. R., Aug. 1875, Sp. All. r. 28.) This mle when applied to the Chancery Division does not mean thai; the old common law rules as to. costs shall prevail in' the Chancery as well as the other divisions, but that the rules of the old Court of Chancery as to costs shall, except where altered by the new rules. 210 Oosts. remain in force in the Chancery Division : {Pringle t. Gloag, L, Rep. 10 Ch. Div. 676.) (/) On Appeal. [See ApPBAii.] (g) Orders. In orders in the Chancery Division awarding costs of action, the registrars are to insert, without any special directions, _ the words " deluding costs of all applications ordered to stand over tiU the trial, and aQ costs reserved to be disposed of at the trial : " (W. N. 1876, p. 271.) Qi) Scales on which allowed. (1) Lower Scale. Sohcitors shall be entitled to charge and be allowed the fees set forth in the column headed " lower scale "....: In all actions [for a debt or liquidated demand, whether the indorse- ment on the writ is general, or special, or for damages]. In aU causes and matters .... assigned to the Queen's Bench Common Pleas, .... Exchequer, .... or Probate, Divorce, and Admiralty Divisions ; And also in causes and matters by the 34th section [of the Judicatpe Act, 1873] assigned to the Chancery Division .... in the following cases .... 1. By creditors, legatees (whether specific, pecuniary, or residuary), devisees (whether in trust or otherwise), heirs at law or next-of-kin, in which the personal or real or personal and real estate for or against or in respect of which or for an account or administration of which the demand may be made shall be under the amount or value of lOOOi. ; 2. For the execution of trusts or appointment of new trustees in which the trust estate or fund shall be under the amount or value of 1000? ; 3. For dissolution of partnership or the taking of partnership or any other accounts in which the partnership assets or the estate or fund shall be under the amount or value of lOOOZ. ; 4. For foreclosure or redemption, or for enforcing any charge or lien in which the mortgage whereon the suit is founded, or the charge or lien sought to be enforced shall be under the amount or value of lOOOZ. -. ICotterill v. Stratton, L. Sep. 9 Ch. App. 514]. 5. And for specific performance in which the purchase money or con- sideration shall be under the amount or value of lOOOZ. ; 6. In all proceedings under the Trustees Relief Acts, or under the Trustees Acts, or under any of such Acts, in which the trust estate or fund to which the proceeding relates shall be under the amount or value of lOOOZ. ; 7. In all proceedings relating to the guardianship or maintenance of infants, in which the property of the infant shall be under the amount or value of lOOOi. ; ' 8 In all proceedings relating to funds carried to separate accounts, and in all proceedings under any railway or private Act of Parlia- ment, or under any other statutory or summary jurisdiction, and generally in all other cases where the estate or. fund to be dealt with shall be under the amount or value of lOOOJ. : [Rogers v. Jones, L. Rep. 7 Oh. Div. 346 ; 38 L. T. Rep. N. S. 17.] (Add. R., Aug. 1876, O. VI., r. 1.) In on action claiming 360Z. and costs brought in the Chancery Division, Costs. 211 arising out of the doctrine of election, claiming damages and compensation from the estate of a deceased person of the value of lOOOZ., and if neces- sary for the administration of his estate, it was held that the lower scale only applied : {Rogers y. Jones, L. Rep. 7 Ch. Div. 345.) The lower scale applies when a sum exceeding lOOOZ. has been reduced below that amount by payments before action : {Judd v. Plum/m, 30 L. J. 94, Ch.) ; And to interpleader proceedings where the value of the matter in dispute is under lOOOi. : {Gihbs v. Gibbs, 27 L. J. 577, Ch.) (2) Higher Scale. Solicitors shall be entitled to charge and be allowed the fees set forth in the column headed " higher scale "....; In all actions for special injunctions to restrain the commission or con- tinuance of waste, nuisances^ breaches of covenant, injuries to property, and infringement of rights, easements, patents, and copyrights, and other similar cases where the procuring such injunction is the principal relief sought to be obtained; and In aU cases other than those to which the fees in the column headed "lower scale'' are ... . made applicable: (Add. R., Aug. 1875,, O. VI., r. 2 ; and see Beade v. Bentley, 8 K. & J. 271.) The court considers the amount or value of the whole subject matter, not merely the amount recovered : {Grimes v. Ma/rrison, 28 L. J. N. S. 828 ; and.comp. Cotterell v. Stratton, L. Rep. 9 Oh. 514.) The injunction must be the principal relief claimed to entitle to costs on the higher scale : {Chapman v. Midland Railway Com/pany, L. Rep. 6 Q. B. Div. 167.) (3) Power to Direct as to Scale allowed. Notwithstanding [the] rules, the court or judge may in any case direct the fees set forth in either of the said two columns to be allowed to all or either or any of the parties, and as to all or any"part of the costs : (Add. R., Aug. 1875, O. VI., r. 3.) The columns are broken up and divided among the particular matters referred to ^osf, 2. (4) Certificate. The solicitor or party acting in person shall, on any proceeding in which he claims to pay fees according to the lower scale, file with the proper officer a certificate [that to the best of his judgment and belief the lower scale is applicable], of which eertifioa1;e the officer is, at the request of any solicitor or any party acting in person in the cause or matter to mark a copy without a fee : (Order as to Tees of 28th Oct., 1875.) The form of certificate is given by the same order. In any case in which 'the fees [of court] have been paid upon the higher scale, and in which it shall happen that the solicitor shall become entitled to charge and be allowed only according to the lower scale of solicitors' fees, the excess of fees so paid may be allowed u^pon the taxation of costs- if the circumstances of the case shall, in the judgment of the taxing officer, justify such allowance : {Id.) 2. Speciai, Ritlbs and Aixowancbs (Alphabetically Arranged). Accounts. — See post. Copies, Drawing, and Improper Proceedings. Adjournment into 'Court. — The party obtaining an adjournment into court is not made to pay the costs thereof, even if the question is unargu- able, unless the court thinks there has been misconduct in requiring the judge's opinion : (Dan. 1056.) p 2 212 Casts. Wteii an adjounied summons is refused with costs, the costs in, chambers, as well as of adjournment, are included : (Id.) Act/mitting Docv/ments. — See post. Evidence. Agency Correspondence. — As to agency correspondence, in country agency causes and matters, if, it bei shown to the satisfaction of the- taxing officer that such correspondence has been special and extensivflj he is to be at liberty to make such special allowance in respect thereof as in his discretioa he may think proper : (Add. R., Aug. 1875, Sp. All. r. 9.) Alternative Relief. — The defendant, though unsuccessful, shall be entitled to Ms costs occasioned by ... . joining any person or persons [as plaintrffis] who shall not be found entitled to relief, unless the court in disposing of the costs of the action shall otherwise direct : (O. XVI., r. 1.) A7n,eind'ment.-^0n an application to disallow an amendment made without leare in a statement of claim,, or defence, or counter-claim, the court may allow the amendment subject to such terms as to costs as may seem just : (See O. XXVII., rr, 2, 3, 4.) The, court or a judge may at any time [impose] such terms as to costs or otherwise, as to such comt or judge, may seem just [on amending]' any defect or error in any proceedings : (O. LIX., r. 2,, Apnl, 1880.) A defendant who has put in a defence with another will, on obtaining an order to put in a separate and amended defence, be made to pay the costs occasioned by not doing so sooner -. (fiargill t. Bower, L. Rep. 4 Oh. Div. 19,.) [Amendment in pleadings not specially provided for, leave to make which 'is applied for by either party in chambers or at the trial] may be allowed upon such terms as to costs .... as may seem just: (o. xxvn., r. 6.) Where an application to amend a pleading is made by motion, the costs- given will not exceed those of a summons attended by counsel : {Marriott V. Mofl-riott, 26 W. R. 416.) While a demurrer to the whole or any part of a pleading is pending .... no [order to amend such pleading] shall be made except on pay- ment of the costs of the demurrer : (O. XXVni., r. 7.) [And see post. Copies-.^ Appeal. — ^The omission [by a respondent to give notice of his intention to contend that the decision below may be varied] may in the discretion of the court, be ground for .... a special order as to costs : (O. LVHI., r. 6.) Appea/r .;, ... ... ... ... -^ Original-^ Original summons for proceedings in chambers in the Chancery Division 13 4 110- And attending to get same and duplicate sealed, and at the proper office to file duplicate and get copies for service stamped 13 4 13 4 Copy for the judge 2 2 0' Or per folio ... ... ... ... ... ... — 4 indorsing same and copies under 8th Bule of the 35th of the Consolidated General Orders of the Court of Chancery 6 8 6 8 Higher Scale. £ s. d. 15 15 6 6 Costs. 235 Third Pwrty. — Where a person was brought in to defend as third party, and was successful, the Queen's Bench Division refused to make the plaintiff pay his costs : (WilliwmiS \. South-Eastern Bail/way Covwany, 26 W. R. 352) ; And the same court held that there was no jurisdiction to impose any terms as to costs of a party brought in by notice, and set aside an order for payment of the costs by the defendant : {Yorkshire Waggon Vom/pany V. Nemiport and Abercarne Coal Company, L. Rep. 5 Q. B. Div. 268 ; 42 L. T. K«p. N. S. 367) ; but Fry, J. ordered the costs of a third and fourth party to whom notice had been given, to be paid by the plaintiff, when the defendant substantially succeeded : {Witham v. Vane, 7th June, 1880.) Where the Court of Appeal afSrmed with costs an order joining a Cion as third party, and at the trial he obtarued judgment dismissing from the action with costs against the party joining him, the Court of Appeal held that it had no power to alter its judgment, or to vary the final judgment in the action by giving the third party his costs : (Beynon v. Godden, 48 L. J. 80, Ex.) Timie. — The costs of an application to extend the time for taking any proceeding shall, in the absence of an order by the court or a judge directing by whom they are to be paid, be in the discretion of the taxing master : (Add. R., Aug. 1875, Sp. All. r. 22a, April, 1880.) Uncertificated Solicitor. — ^A party employing an uncertificated solici- tor in any action or proceeding can recover no costs for money out of pocket on any ground whatever : {Re Fowler v. The Morvmouth Railway and Canal Company, L. Rep. 4 Q. B. Div. 334; 41 L. T. Rep. N". S. 159; 48 L. J. 457, Q. B.) Want of Prosecutions. — [See svp.. Dismissing Action.'} Warrant, Service o/.— ^[See post. Service.} WincLing-lip.'—lSee Copies, post. Service ; and Winding-ttp/] Withdrawing Claim or De/e)ice.-^[,See sup., Discontinuanee.J Woric and Labour not specially provided for.^-Aa to any work and labour properly performed and not herein provided for, and in respect of which fees have heretofore been allowed, the same or similar fees are to be allowed for such work and labour as have heretofore been allowed : (Add. R., Aug. 1875, Sp. All. r. 27.) Writ. — mob specially provided for. The following fees are allowed to solicitors : (Including all indorsements and copies, or praecipes for the ofBcer sealing them, and attendances to issue or seal.) Writ of Execution [see ^Execution.] Writ of Inquiry — The writ ...- Attendances to issue or seal .,, Lower Scale. £ s. d Higher Scale. £ s. d. Copies, on sealing ,„ Indoisements, on sealing Service [see Seraice.'] Writ of Mandamus [see Mandam/us.] Writ of Subpoena [see Subpcena.} 110 110 {[Included in other fees.] C [Included in other I fees.] f [Included in other fees.] f [Included in othier i fees.] .236 Costs. Lower Higher Scale. Scale. £ s. d. £ s. d. Writ of Summons. — The followmg fees are allowed to solicitors : The Writ 6 8 13 4 , ( [Included in other Attendance to issue or seal ... ... S 'fees.! Concurrent writ ... ... ... ... ... ... 6 8 6 8 „ ,. f [Included in other Copies for officer sealing i fees.] If exceeding two folios, for service, per foKo beyond suchtwo 4 4 Endorsement (if special) 5 0. 5 . „ f [Included in other Endorsement (not special) ... ... ... ... | fees.! Notice of, in lieu of service out of jurisdiction ... 4 050 „.,„,. . ( [Included in other Praecipe for officer seaung ... ... ... ••• ( fees! Renewal 6 8 6 8 Service [see Seruice.] And see sitp.. Specially IndorsecC^Writ. IT. TAXATION. 1. On What Peinciplb Conducted. A simple direction that costs are to be taxed, means taxed as between party and party : (Dan. 1299.) Costs are only taxed as between solicitor and client when there is a special direction therefor : [Id. ; Seton, 124.) As to the costs allowed on taxation between party and party, see Add. B., Aug. 1875, Sp. All. r. 26, cited svp. ID.., 2, Opposite Pa/rty's Costs. In taxation as between party and party generally, only those charges are allowed which are strictly necessary for the purposes of the prose- «ntion of the litigation, or are contained in the tables of fees: (Dan. 1298.) In taxation as between solicitor and cUent, the party will be allowed as many of the charges which he would have been compelled to pay his own solicitor, as being costs of suit, as fair justice to the other party will admit: (Id.) But regard will be had to the position of the parties, and the fund out of which the costs are to be paid ; distinctions with regard to different funds beiag made when the order is acted upon by the taxing master : {Id. ; and see Add. E. Aug. 1875, r. 29, died post 8 (d).) The addition of the words " and consequent thereon," or " and relating thereto," or both sets of words, to the words " as between solicitor and client," give a wider range to the taxation : (Seton, 124.) Where costs are ordered to be paid to a party suing in. formd pauperis, Buch costs shall be taxed as dives costs, unless the court shall othervrise direct : (C. O. 40, r. 5.) An order for payment of costs by two or more parties is joint and several, and if one of them absconds or dies the cost may still be taxed and recovered against the others : {Be Colquhovm, 5 De G-. M. & Gr. 35 ; Be Allen, L. Rep. 11 Ch. Div. 244 j 40 L. T. Rep. N. S. 187.) Costs will be taxed, notwithstanding the absence of a personal repre- sentative : (Aspden v. Seddon, W. N. 1877, p. 207.) In a case of a joint retainer an order to tax may be obtained against one of the parties, but it does not follow he is liable to pay the whole of the costs : {Be Allen, swp.) Oosts. 237 A judgment directing oosts to be taxed, warrants, unless further con- sideration is adjourned, the taxation of the oosts of working out the directions of the judgment, notwithstanding a reservation of subsequent costs not provided for by the judgment, there being other costs by which these words might be satisfied : (Dan. 1316.) If the costs are taxed immediately, subsequent costs which cannot be taxed by anticipation must be waived, or a, fresh order obtaiued : (Seton, 124.) 2. Pbeparation of Bill of Costs. A fair copy of the bUl must be made on foolscap paper, bookwise, the date being Kept within the body of the biQ, so as to leave the left-hand margin for deductions ; and a copy of the judgment or order under which the costs are taxed must be made on foolscap paper, bookwise, at the foot of which there must be the following certificate, endorsed and signed by the soKcitor : " I hereby certify that this is a true copy of the original [judgment] as passed and entered " : (Dan. 1312 ; Ayck. 427.) If there has been no previous taxation in the cause or matter, the solicitor must also sign in the margin of the order the following certifi- cate : " I hereby certify that this cause [or matter] has not been already referred to any taxing master" : (Id.) In a taxation as between party and party, the biU of costs may be amended at any time during the pendency of the taxation : (Dan. 1314 ; Ayek. 428.) 3. To VTHAT Taxing Master kefbbeed. All references for the taxation of costs shall be made to the taxing- master in rotation ; or if there shall have been any former taxation of costs in the same cause or matter, then to the taxing master before whom such former taxation shall have taken place : (0. O. 40, r. 2.) 4. Leaving Documents with Taxing-Mastbes. (a) Wh&re there has been previous Taxation. If there has been a previous taxation, it is unnecessary to get a fresh reference (Ayck. 427), but the bill of costs, and copy judgment, or order are taken at once to the office of the master before whom the previous taxation took place : (Dan. 1312.) Before the warrant to tax is gfranted, the various papers in the cause, arranged in the order of the items in the bill, with vouchers for all fees and disbursements, must be left with the same taxing master : (Ayck. 428.) (6) Where no preoious Taxation. If there has been no previous taxation, the original judgment or order, with the copy, and bill of costs (see sv/p. 2) must be taken to the taxing master's office, and the name of the sitting master ascertaiaed : (Ayck. 427.) The following order must be indorsed by the solicitor on the front sheet of the original order : " The day of 18 Mr. is the proper taxing master to whom the taxation of costs in this action [or matter] is referred :" (Ayck. 427 ; Dan. 1312 ; Dan. Forms, 1042.) The order with the certificate of no previous taxation (see sup. 2) is handed to the sitting master's clerk, who gets the name of the taxing master ia rotation marked : (Ayck. 427.) The order and copy are then taken to the clerk of the taxation master in rotation, who examines and files the copy (which must include the certifi- cates) : (Ayck. 427 ; Dan. 1312.) The biQ of costs is left with such clerks : [Id.) The papers and vouchers must be left with the taxing master, as men- tioned sv/p. (a) 238 Costs. 5. Waeeant to Tax. When the papers are left a warrant to tax is taken out : (Ayck. 427.) Only one warrant is to be issued on one bill, or set of bills, unless the taxing master thinks it necessary to issue a new warrant : (Ayck. 428.) The practice is to issue one warrant on leaving, and one warrant to tax each bill or set of bUls : (Id.) Copies of the warrant are served on the opposite parties : (Ayck. 427.) Forms of warrants on leaving, and to tax respectively, are given in Dartiell's Forms, p. 1042. 6. FrBNisHiNG Copies of Bill. ^ Where any party is entitled to a copy of any .... document prepared by or on behalf of this party which is not required to be printed, such copy shall be furnished by the party by or on whose behalf the same has been .... prepared : (Add. R., Aug. 1875, O. Y., r. 8.) The party or his solicitor requiring any such copy, or his solicitor, is to make a written application to the party by whom the copy is to be furnished, or his scuicitor, with an undertaking to pay the proper charges : (2a., r. 9.) The folios of aU [such] copies shall be numbered consecutively in the margin thereof and the other particulars complied with : (See Copies.) Copies of biUs of costs shall be made side for side, so as to correspond with the bUls of costs left in the ofllce : (C. O. 36, r. 7.) The copies ought to be delivered within twenty-four hours after receipt of the request and undertaking or within such other time as the court or judge may in any case direct : (See Copies, and comp. 0. O. 36, r. 6.) 7. Going theotjgh Bills befoeb Taxation. In practice the bills are usually gone through, and compared with the papers and vouchers, by the taxing master's principal clerk, in the presence of the parties, at an a;ppointment made for that purpose, prior to any attendance before the master : (Dan. 1314, note [g).) 8. The Taxation. (a) Directions as to Attendances. The taxing officer shall have authority to arrange and direct what parties are to attend before him on the taxation of costs to be borne by a fund or estate, and to disallow the costs of any party whose attendance such officer shall in his discretion consider unnecessary in consequence of the interest of such party in such fund or estate being small or remote or sufficiently protected by other parties interested : (Add. E,., Aue. 1875, Sp. All., r. 24.) . ■ 6 ' (&) Bcfusal to hrvng in Costs. When any party entitled to costs refuses or neglects to bring in Ms costs for taxation, or to procure the same to be taxed, and thereby prejudices any other party, the taxing officer shall be at liberty to certify the costs of the other parties, and certify such refusal or neglect, or may aUow such ^arty refusing or neglecting a nominal or other sum for such costs, 80 as to prevent any other party being prejudiced by such refusal or neglect : (Add. B., Aug., 1875, Sp. All. r. 25.) (e) Failure tq Attend^. If any parties entitled to attend fail to do so, the taxing master will proceed in their absence, on proof by affidavit of the due service of the warrant on them : (Dan. 1314!) The affidavit is made before the taxing master, and indorsed on the original warrant : {Id.) Costs. 239 (d) General Powers and Duties. The taxing officers .... shall, for the purpose of any proceeding before them, have power and authority to admiuister oaths, and shall, in relation to the taxation of costs, perform all such duties as have heretofore been performed by any of the masters, taxing masters, registrars, or other officers of any of the courts whose jurisdiction is by the Act transferred to the High Court of Justice or Court of Appeal, and shall, in respect thereof, have such powers and authorities as previous to the commence- ment of the Act were vested iu any of such officers, including examining witnesses, directing production of books, papers, and documents, making separate certificates or allocaturs, requiring any party to be represented by a separate solicitor, and to direct and adopt all such other proceedings as could be directed and adopted by any such officer on references for the taxation of costs, and taking accounts of what is due in respect of such costs, and such other accounts connected therewith as may be directed by the court or a judge : (Add.Tl., Aug. 1875, Sp. AH. r. 23.) [Where. the judge has power to disallow costs of unnecessary pro- ceedings (see sv/p. III., 2, Improper Proceedings), and] in any case .... such question shall not have been raised before and dealt with by the court or judge, the taxing officer may look into the same (and, as to evidence, although the same may be entered as read in any decree or order) for the purpose afores^d, and thereupon the same consequences shall ensue as if he had been specially directed to do so : (Add. R., Aug. 1875, Sp. AU. r. 18.) When a defendant obtains the ordinary order to stay proceedings as payment of costs, it is the taxing master's duty to consider and determine questions raised by the defendant as to the propriety of proceedings charged for : {Be WormsUy, 39 L. T. Rep. K". S. 85 ; 47 L. X 844, Oh. ; W. N. 1878, p. 193 ; 27 W. R. 36.) In any case in which, under the preceding Rule No. 18, or any other rule of court, or by the order or direction of a court or judge, or other- wise, a party entitled to receive costs is liable to pay costs to any other party, the taxing officer may tax the costs such party is so liable to pay, and may adjust the same by way of deduction or set-ofE, or may, if he shall think fit, delay the allowance of the costs such party is entitled to receive until he has paid or tendered the costs he is liable to pay ; or such officer may allow or certify the costs to be paid, and the same may be recovered by the party entitled thereto in the same manner as costs ordered to be paid may be recovered: (Add. R., Aug. 1876, Sp. All. r. 19.) Where [an action] or petition is dismissed with costs, or a motion is refused with costs, or any cosfs are by any general or special order .... to be paid, the taxing master .... may tax such costs without any order referring the same for taxation, unless the court, upon the application of the party alleging himself to be aggrieved, prohibits the taxation of such costs : (C. 0. 40, r. 38.) This rule is not generally acted on : (Dan. 1309.) As to all fees or allowances which are discretionary, the same are, unless otherwise provided, to be allowed at the discretion of the taxing officer, who, in the exercise of such discretion, is to take into coialSideration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies, the nature and import- ance of the cause or matter, the amount involved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedmgs, and all other circumstances : (Add. R., Aug. 1879, Sp. All. r. 29.) [Where an account consisting in part of any bill of costs, or the judge 240 , Costs. directs the taxing master to assist him in settling the costs of establishing a debt in chambers] the taxing master, on receiving such direction, shafl proceed to tax such costs, and shall hare the same powers, and the same fees shall be payable in respect thereof, as if the same had been referred to the taxing master by an order, and he shall return the same, with his opinion thereon, to the judge by whose direction the same were taxed : (G. O. 40, r. 25.) The bill of costs produced as a Toucher at chambers is identified by the chief clerk's initials, and left at the taxing master's oflSce with the direction to tax signed by the chief clerk : (Dan. 1312 n.) Where, upon the taxation of any biU of costs, it appears to the taxing master, that, for the purpose of duly taxing the same, it is necessary to inspect any books, papers, or documents relating to the cause or matter in the chambers of any judge, the taxing master shall be at liberty to request the chief clerk of such judge to cause the same to be transmitted to the oflSoe of the taxing master ; and also to request such chief clerk to certify any proceedings in the said chambers which may be comprised in the bill of costs under taxation ; and in such cases the chief clerk, when and so soon and at and for such times as the due transaction of the business at the said chambers will permit, shall direct such books, papers, and documents to be transmitted to the ofiBlce of the taxing master for his use during the taxation, and shall certify the proceedings which have taken place in the said chambers according to the request of the taxing master; and after the costs in respect of which such request of the taxing master was made shall have been certified, the taxing master shall cause the same books, papers, and documents which have been so transmitted to his office, if then remaining there, to be returned to the chambers of the judge : (0. O. 40, r. 26.) When any book, paper, or document shall be transmitted from the chambers of a judge to the office of a taxing master, a memorandum of such transmission shall be made and signed by the taxing master or the clerk of the taxing master at whose request such book, paper, or document may be transmitted, and shall be delivered to the chief clerk of such judge; and when any such book, paper, or document shall be returned from the office of the taxing master to the judge's chambers, a memorandum of such return shall be made and signed by such chief clerk, or by one of his clerks, and shall be delivered to the taxing master : (C. O. 40, r. 27.) The taxing master is the sole judge of the fact whether business has been done : (Dan. 1317.) It is his duty to inquire also whether the business was required to be done : (Id.) It is not within the province of the taxing officer to inquire into the question of a solicitor's negligence causing costs : (The Papa de Bossie, L. Rep. 3 P. Div. 160.) (e) Signature of Bill. After the taxation is completed, the biU is cast up by the solicitors, and the deductions are subtracted, after which they are checked bv the clerk ■ (Ayck. 428 ; Dan. 1314.) The taxing master then signs the biU : (Dan. 1314.) (/) Certificate of Taxation. If it is intended to enforce payment of costs by any other proceedings, or evidence of the amount is required, a certificate of the taxation must be obtained from the master, and filed in the Central Office, and an office copy taken : (Dan. 1314 ; Ayck. 1314.) Oosts. 241 Where oosts are directed to be paid out. of money in court, or out of the proceeds of securities in court, the 'taxing master shall certify the amount of the fees of taxation payable in respect of such costs, unless he shall certify that such fees are included in the costs as taxed : (Gh. F. R. 1874, r. 58.) (jr) Proceedi/ngs on Direction in case Parties differ. Where it is directed that costs shall be taxed in case the parties differ about the same, the party claiming the costs shall bring the bill of costs into the taxing master's office, and give notice of his having so done to the other party ; and at any time witmn eight days after such notice, such other party shall have liberty to inspect the same without fee, if he thinks fit. And at or before the expiration of the eight days, or such further time as the taxing master shall in his discretion allow, such other party shall either agree to pay the costs or signify his dissent therefrom, and shall thereupon be at liberty to tender a sum of money for the costs. But where he makes no such tender, or where the party clainung the costs refuses to accept the sum so tendered, the taxing master shall proceed to tax the costs. And where the taxed costs shall not exceed the sum tendered, the costs of the taxation shall be borne by the party claiming the costs : (0. O. 40, r. 39.) 9. Review op Taxation. (a) By Taxing Master. Any party who may be dissatisfied with the allowance or disallowance by the taxing officer, in any bill of costs taxed by him, of the whole or amy part of any item or items, may, at any time before the certificate or allocatur is signed, deliver to the other party idterested therein, and carry in before the taxing officer, an objection in writing , to such allowance or disallowance, specifying therein by a list, in a short and concise form, the item or items, or parts or part thereof, objected to, and may thereupon, apply to the taxing officer to review the taxation in respect of the same : (Add. R., Aug. 1875, Sp_. All. r. 30.) The reasons of the objections need not be stated, but the items must be> specified : {Svnvmons v. Storer, L. Rep. 14 Ch. Div. 154 ; 42 L. T. Rep. N. S. 291 ; 28 W. R. 408.) Upon such application the taxing officer shall reconsider and review his- taxation upon such objections, and he may, if he shall think fit, receive further evidence in respect thereof, and, if so required by either party,, he shall state either in his certificate of taxation or allocatur, or by reference to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances relating thereto : (Add. R., Aug. 1875, Sp. All. r. 31.) (6) By Jvdge. [See Appeal.] 10. In Disteict Registbt. [See swp. in., 2, District Registry ; and Disteict Rbgistet.] V. DELIVERT OF BILL AND TAXATION UNDER 6 & 7 VICT. 0. 73. 1. Deliveet op Bill. (a) To he One Month before Action. No ... . solicitor, nor ajw executor, administrator, or assignee [or trustee in bankruptcy {Be Walton, 4 K._& J. 78)] of any attorney or solicitor, shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by such attorney 242 Costs. or solicitor [in his character as such (Dan. 1726)] until the expiration of one [calendar] month after such .... s'olicitor, or executor, administrator, or assignee of such attorney or solicitor, shall have delivered nnto the party to be charged therewith, or sent by the post to or left for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill of such fees, charges, and disbursements : (6 & 7 Tict. c. 73, s. 37.) In calculating the month, the days on which the bill is delivered, and the action brought, are to be excluded : (Dan. 1726 ; Morg. & D. 305.) An unsigned bill in a signed letter is sufficient : {Be Bush, 8 Beav. 66.) The amount charged in respect of each item must be distinct: {Wilkinson v. Smart, 33 L. T. Rep. N. S. 573); but if these items are lumped together, a detailed statement may be allowed to be supplied : {Be Tillewrd, 32 Beav. 476.) TSo particular heading of the bill is required, but it should show in what court the business was done (Dan. 1732) if it has been done in any court. It should also show upon the face of it or by the accompanying letter, that the solicitor seeks to charge the person whom he intend to sue : (Dan. 1732.) Generally it is sufficient if the bm gives such information as will enable the client to obtain advice as to- the taxation : (Morg. & Oh. 8.) Delivery to an agent duly authorised is sufficient {Be Bush, 8 Beav. 66) but not delivery to the party's solicitor : (Morg. & Ch. 8.) The bin must be left and not merely shown : {Id.) See further, as to what constitutes delivery : (Morg, & Ch. 7 ; Dan. 1733.) (6) Authorising Action before the Month. It shall be lawful for any judge of the [High Court] to authorise a .... solicitor to commence an action or suit for the recovery of his fees, charges, or disbursements against the party chargeable therewith, although one month shall not have expired from the ddivery of a bill as aforesaid, on proof to the satisfaction of the said judge that there is probable cause for believing that such party is about to quit England : (6 & 7 Vict. c. 73, s. 37.) (c) Signature to Bill. [The] bin shall either be subscribed with the proper hand of such .... solicitor (or, in the case of a partnership, by any of the partners, either with his own name or with the name or style of such partnership), or of the executor, administrator, or assignee of such attorney or solicitor, or be inclosed in or accompanied by a letter subscribed in like manner referring to such biQ : (6 & 7 Yict. c. 73, s. 37.) The letter must be addressed to the person to whom the bill is sent : (Dan. 1731.) A signed bill must be delivered though a certain sum has been agreed on : {Wilkinson v. Smart, 33 L. T. Rep. N. S. 573.) The client may apply though the bill is unsigned. [And see sup. (a)J {d) Ordering Delivery. It shall be lawful for the said [court] and judges, in the same cases in which they are respectively authorised to refer a bill which has been so as aforesaid delivered, sent, or left, to make such order for the delivery by any .... solicitor, or the executor, administrator, or assignee of any attorney or solicitor, of such biQ as aforesaid .... or otherwise touching the same, m the same manner as has heretofore been done as regards such .... solicitor, by such [court] or judges respectively, where any such Costs. 243 business had been transacted in the court in which such order was made : (6 & 7 Vict. c. 73, s. 37.) The order may be obtained on motion or petition of course (Dan. 1734) ; but cannot be made after verdict, writ of inquiry, or payment : {Be Becke arid Flower, sup. ; Be Winterbottom, 15 Beav. 80.) But this .does not apply to a payment on account {Be Woodard, sup.) ; and an order of course obtained after action brought for costs, but before notice thereof, is not irregidar : {Be Farington, 33 Beav. 346.) The chief clerks of all the judges have now power to grant such orders : (per Jessel, M.R, ; see W. N. 1880, p. 7.) All material facts must be stated on the application : {Be Winterbottom, swp. ; Be Holland, 19 Beav. 315 ; Be Gedye, 15 Beav. 264 ; Be David, 30 Beav. 278.) 2. B/EPKEENCE FOB TAXATION. (a) Application to Tate. (1) How made. The application need not be made to the branch of the court which heard the suit, unless the merits of the case enter into the questions : (Morg. & Ch. 9.) The application to tax may be made by motion or petition of course — (1.) Within one month after deliveiy of the biU : {Be Becke and Flower, 5 Beav. 406.) (2.) After the expiration of such month, and before the expiration of twelve months from delivery of the bill : {Be BecJce and Flower, sup. ; Be Byrch, 8 Beav. 124 ; Be Woodard, 18 W. R. 37.) In the latter case the order of course is made with such special directions as the court may order to be imposed : {Be Bromley, 7 l^eav. 487 ; Be Gaitshell, 1 Phil. 581 ; Be Pender, 2 Phil.'69.) A judgment which is not final in an action for the costs does not preclude an order of course for taxation : {Be Gedye, 15 Beav. 254.) Applications ' by third parties under sect. 38 (as to which, see post (2),) may be made by motion or petition of course : {Be Straford, 16 Beav. 27.) Applications may be made by motion or petition of course to tax costs abeady incurred, though costs become payable consequently, in the same suit : {Be Jarmam,, L. Kep. 4 Oh. Div. 835.) An order of course is not irregular because some of the items are included in an existing order to tax in an action : {Be Fhiker, 20 Beav. 143.) A special agreement covering part only of the items of a bill, does not prevent the biH from being referred for taxation without a special order {Be Eyre, 2 PhU. 367) j but any suppression of the fact of such agreement win make the order irregular : (Morg. & Chute, 10.) It is irregular for two parties jointly liable to obtain an order of course to tax costs incurred by them and another person : {Be Ilderton, 33 Beav. 201 ; Be Lewim,, 16 Beav. 608.) When an order of course is obtained improperly, it wiQ be discharged on motion : {Be Solland, 19 Beav. 315.) But the motion mitet be made promptly : {Be Wavell, 22 Beav. 634.) [After one year from the date of the delivery of the bill, or at any time where there are special circumstances] all applications to refer any bUl .... shall .... be made to a judge at chambers by summons : (Ch. O., 17th April, 1867, r. 1.) The summons is an originating summons : (See Chambebs.) B 2 244 Costs. The application is by summons in the following cases : To tax same, only, of several bills {Be Yetts, 33 Beav. 412 ; Be Law and Gould, 21 Beav. 481) ; To tax costs payable by executors, &c., under sect. 39 (as to which, see^osi, (2) {Be Straford, 16 Beav. 27) ; Where there is a special agreement as to the whole of the costs {Ward V. Lawson, L. Rep. 8 Oh. App. 66, and. other cases cited Morg. & Chute, 10) ; When the retainer is ^puted : {Be Thwrgood, 19 Beav. 541). All applications made under [the Act] to refer any . .• . . bUl .... to be taxed and settled shall be made in the matter of [the] solicitor : (6 & 7 Yict. c. 73, s. 43.) The petition, motion paper, or summons, should be intituled in the matter of the solicitor's London agent, as well, if one has been employed, but need not be intituled in the matter of the Act : {Be Walton, 4 E. & J. 78.) A married woman who applies for taxation of costs in respect of separate estate must do so by her next friend, even when she applies for an order of course : {Be Waugh, 15 Beav. 508.) (2) By whom made. By Party Chargeable, within the Month. Upon the application of the party chargeable by such bUl within one month it shall be lawful, in case the business contained in such bill or any part thereof shall have been transacted in the High Court of [Justice], or m any other Court .... or in any matter of bankruptcy or lunacy, or in case no part of such business shaJl have been transacted in any court of law or equity [for any division of the High Court], or any judge of tany such divisions], and they are .... respectively required to refer [the iU and demand for payment] to be taxed: (6 & 7 Vict. c. 73, s. 37; J. A., 1873, ss. 16, 39.) By either Party, after the Month. In case no such application as aforesaid shall be made within such month as aforesaid, then it shall be ]a,wfnl for such reference to be made as aforesaid, either upon the application of the .... solicitor, or the executor, administrator, or assignee of the attorney or solicitor, whose bill may have been so as aforesaid delivered, sent, or left upon the application of the party chargeable by such bill : (6 & 7 Vict. c. 73, s. 37.) A solicitor has no statutory right to have the amount of his charges ascertained by taxation : (Ex parte Ditton, Be Woods, L. B,ep. 13 Ch. Div. 318 ; 42 L. T. Rep. N. S. 161 ; 28 W. R. 402.) A married woman who has made her separate estate liable for costs is a party chargeable : {Watigh v. WaddeU, 16 Beav. 521.) A personal representative of the client may apply : (Jefferson v. PTar- rmfffom, 7 M.&W. 137.) The fact of a party being in contempt does not prevent his proceeding to obtain a taxation : (Newton v Bicketts, 11 Beav. 67.) Overseers of the poor are bound to have bills taxed before thev pay them : (Morg. & Chute, 9.) By Third Parties. Where any person not the party chargeable with any such bill within the meaning of the provisions contained [in sect. 37], shall be liable to pay or shall have paid such biU, either to the attorney or solicitor, his executor, administrator, or assignee, or to the party chargeable with such biU as aforesaid ; it shall be lawful for such person, his executor, administrator, Costs. 245 or assignee to make such application for a reference for the taxation and settlement of such bill as the party chargeable therewith might himself mate, and the same reference and order shall be made thereupon, and the same course pursued in all respects, as if such application was made by the party so chargeable with such bill as aforesaid : (6 & 7 Yict. c. 73, s. 38.) A mortgagor or puisne incumbrancer may tax the costs of the solicitor of ithe mortgagee : {Be Lees, 5 Beav. 411 ; Me Taylor, 18 Beav. 165.) But a mere volunteer, under no previous liability, does not, by paying a solicitor's biU acquire a right to tax it: (-Be Becke and Flower, 5 Beay. 406.) When under an agreement for a compromise one party agrees to pay the other's costs, the former party is entitled to have the costs taxed : (JRe Hartley, 30 Beav. 620.) But a bankrupt cannot apply (Be Salsall, 11 Beav. 163), even though discharged after payment by his trustee, and his creditors' payment in fnfl : Me Zeadbitter, L. Rep. 10 Ch. Div. 388.) . The cestui que trust stands in the place of the trustee, and the taxation is as between solicitor and client (Re Neate, 10 Beav. 181 ; Re Baker, 32 Beav. 526), but not so as to enable the solicitor to charge, as against the •cestui que trust, for anything done unnecessarily, though hj the trustee's express direction : (Re Brown, L. Rep. 4 Eq. 464.) Persons only remotely interested have no right to have the bill taxed : (5) .... Under the Trustee Relief Acts, or under the Trustee Acts, or under any of such Acts, in which the trust estate or fund .... to which the proceeding relates shall not exceed [the same amount] ; '• '(6) .... Relating to the maintenance or advancement of infants in which the property of the infant shall not exceed [the same amount] ; (7) . . . . For the dissolution ox winding-up of any partnership in which the whole property, stock, and credits of such partnership shall not exceed [the same amount] ; (8) . . . . For orders in the nature of injunctions, when the same are reqidsite for granting relief ia any matter in which iurisdietion is given by [the Act] to the County Court : (28 & 29 Yict. c. 99, S..1.) (9) For partition (including the power and authority conferred [on the High. Court of Chancery by 31 & 32 Yict. c. 40]) in any case when the property to which the suit relates does not exceed in value [the same amount] : (31 & 32 Yict. c. 40, s. 12.) As to the jurisdiction of the County Courts to stay proceedings in ■other courts, compare 28 & 29 Yict. c. 99, s. 1, sub-sect. 8, and J. A., 1873, s. 23. The Act contains no prohibition or restriction whatever with regard to the existing jurisdiction of the court : {Brown v. Bye, L. Rep. 17 Bq. 344.) When a plaintiff institutes equitable proceedings in the Chancery Division, which he might have commenced in a County Court under the Act of 1865, he is entitled to his usual costs {Brown v. Bye {siip.); Scotto V. Seritage, L._ Rep. 3 Eq. 212 ; but see Simons v. McAdam, L. Rep. 6 Eq. 324) subject to the court's general discretion as to granting costs : (see Costs.) n. ORDERING TRIAL m. Where, in any action of contract brought in [the High Court of Justice] the claim indorsed on the writ does not exceed fifty pounds, or where such claim, though it originally exceeded fifty pounds, is reduced by payment into court, payment, an admitted set-off, or otherwise, to a sum not exceeding fifty pounds, a judge of [the High Court] on the Gowrdy Oourts. 255 application of either party, after issue joined, may, in his discretion, and on such terms as he shall think fit, order that the cause be tried in any County Court which he shall name : (19 & 20 Vict. c. 108, s. 26.) The form of order is given in Schedule H. 42, to the Rtiles of AprU, 1880. [The order being made,] thereupon the plaintiff shall lodge with the registrar of such ^County] Court such order and the issue ; and the judge of such court shall appoint a day for the hearing of the cause, notice whereof shall be sent, by post or otherwise, by the registrar to both parties or their attorneys ; and after such hearing the registrar shall certify the result to the master's office of such superior court; and judgment iu accordance with such certificate may be signed in such superior court: (19 & 20 Vict. c. 108, s. 26.) Where no special terms are imposed by the order, the parties are entitled (if the demand is of sufficient amount) to a trial by jury, notwith- standing a second trial is difected in a case where the first trial was by the County Court judge, without a jury : (Ford v. Taylor, L. Rep. 3 C. P. DiT. 21.) The action is not transferred to the County Court, the trial only taking place in the County Court, and the cause itself remaining in the High Court : (per Blackburn, J., Balmforth v. Pledge, L. Rep. 1 Q. B. 427.) County Court judges will sometimes certify as to costs. If they do not, costs do not follow as of course, but a motion must be made to the court above for costs to be allowed. Judgment may be signed on the certificate ■ without moving for judgment : {Scutt v. Freeman, L. Rep. 2 Q. B. Div. 177.) When the order does not impose any terms, the costs may be taxed according to the scale of the High Court, so far as regards the pro- ceedrags in the High Court ; but so far as regards proceedings in the County Court, accor£ng to the County Court scale : {Wheatcroft v. Foster, B. B. & E. 737.) The jurisdiction to grant a new trial remains in the High Court : [Balmforth v. Pledge, swp.) When the action is tried by a Comity Court judge without a jury the application for a new trial must be made to the division in which the action was commenced, and not to the Court of Appeal : {Davis v. Godbehere, L. Rep. 4 Ex. Div. 215.) The time for applying for a new trial is not regulated by the rules under the Judicature Act, but by the former practice, and the application must be made within four days from the day of trial if the cause be tried during the sittings, or within the first four days of the ensuing sittings, if tried when the court above is not sitting, unless further time is allowed : {London v. Boffey, L. Rep. 3 Q. B. Div. 6 ; Bimn v. Pearson, W. N. 1878, p. 82.) The time for applying for a new trial runs from the day of the hearing of the cause, not nom the filing of the registrar's certificate : {Copcutt v. Cheat Western Bailway Company, L. Rep. 2 C. P. 465.) III. REMOVAL AND TRANSFER TO AISTD FROM. [See Cbetioeabi, Teanspee.J IV. APPEALS FROM. Appeals from County Court are expressly excepted from the matter assigned to the Chancery Division : (see J. A. 1873, s. 34.) All appeals from .... a County Court, .... which might before the passing of [the Judicature Acts] have been brought to any court or 266 County Debentures Act — Declaration of Right. judge wiose jimediction is ... . transferred to the High Court of Justice, may be heard and determined by Divisional Courts consisting respectively of such of the judges thereof as may from time to time be assigned for that purpose : (J. A. 1873, s. 45.) As to the practice, see Pakt II. Malins, V.C. has decided that, when the Divisional Court is not sitting, he has jurisdiction to hear appeal mptions, and he has in such motions granted orders to show cause either before himself or the Divisional Court : I^Eccles v. Eceles, W. N. 1875, p. 194 ; 33 L. T. Rep. N. S. 338 ; WilUains V. Bimdon, W. N. 1876, p. 16.) The same judge has held that such applications should not be made at- chambers : {WiUiamis v. Bmdon, sup.) ; but by sect. 6 of the County Courts Act, 1875, if the Divisional Court "be not then sitting, such motion may be made before any judge of a Superior Court sitting iu chambers " : (38 & 39 Vict. c. 50.) The Divisional Court has held that it has no jurisdiction to hear a motion upon appeal from a County Court, which has already been before a judjge at chambers, and has been adjourned to the sitting of the court. The judge at chambers before whom the motion has been Drought in the first instance must himself hear and determine it : {Button v. The Wool- wich Building Society, L. Bep. 5 Q. B. Div. 88 ; 42 L. T. Rep. N. S. 54 ; 49 L. J. 249, Q. B.) COUNTY DEBENTURES ACT. If default is made in payment to any person or persons entitled, of any sum or sums due on debentures or coupons issued under [the] Act, at the time appointed for payment thereof, and the sum or aggregate of the sums the payment of which is thus in default amount to not less than 500Z., such person or persons may, instead of or in addition to bringing an action or actions for the sum or sums due, apply to a court of equity for the appointment of a receiver [to whom certain powers are given by the Act] : (36 & 37 Vict. c. 35, s. 17.) [The Act is repealed, as from the 1st Jan. 1876, but not so as to] abridge or prejudicially a&ct any right in respect of any debenture issued in pursuance [thereof] before the [above date], or any remedy for non- payment of moneys secured by any such debenture, and all such rights and remedies may [still] be enforced : (38 & 39 Vict. c. 83, s. 35 ; and see LooAii Loans Act.) CUSTODY OF INFANTS. [See Infants.] DECLARATION OF RIGHT. No suit .... shall be open to objection on the ground that a merely declaratory" [judgment] or order is sought thereby, and it shall be lawful for the court to maJie binding declarations of right without granting consequential relief : (15 & 16 Vict. c. 86, s. 50.) This section is stiU in full vigour : {Cox v. Barker, L. Rep. 3 Oh. Div. 369 ; Sweeting v. Prideaux, L. Rep. 2 Oh. Div. 413.) The court can only make a declaration of right, where it can, if neces- Declaration of Right — Declaration of Title. 257 sary, act on it by giving consequential relief : [Booke v. Lord Kensington, 2 K. & J. 753, &o., cited Seton, 20.) The court cannot make declarations as to : Future rights : (Langdale v. Briggs, 8 D. M. & G. 391.) Bights of persons entitled in reveTsion : {Garlick v. Lawson, 10 Hare, App. XV.) Bights depending on a contingency which has not happened : {Dow- ling T. Bowling, L. Rep. 1 Oh. App. 612, cited Seton, 20) ; or Guarding against a claim which may never be made : {Jackson v. Turndey, 4 Drew, 617, cited Morg. 209.) DECLARATION OF TITLE. I. INTEEPEETATION OP TEEMS. n. WHO MAT APPLY. 1. CrENERAIiliT. 2. Two OK MOEE PeKSONS. 3. Maekied Women. 4. Infants, &o. 5. Chanob op Pabties. m. PETITION FOE DECLARATION. 1. FOEM. 2. Service on Eegistkab. IV. OEDEE FOE INVESTIGATION OF TITLE. V. INVESTIGATION OF TITLE. VI. AFFIDAVIT AS TO TITLE. Vn. SECXJEITT FOE COSTS. Vni. EEGISTEAE OF INCUMBEANCES AND ESTATES. IX. PETITION OPPOSmG DECLAEATION. X. DISMISSAL OF PETITION FOE DECLAEATION. XI. OEDEE NISI FOE DECLAEATION OF TITLE. 1. Makino Obdee. 2. Sebvtno Copt on Adjoinin& Ownees, &c. 3. Depositino Copz foe Inspection. Xn. ADVEETISEMENTS. Xni. THE DECLAEATION OF TITLE. 1. Weeee m.ADE. 2. Sepaeate Dbclaeations. 3. Eebeevinq Eiohts itndbe Lost oe Destboibd Deeds. 4. When Finaii (see post, XIV.] 5. Effect. (a) As to PwrcJiaser for Valuable Consideraiion. (b) As to Taxes, Leases, and Easements. (c) As to Incumbrances. (d) Irregularity or Informality in Proceedings. (e) Where Procured by Fraud or Falsehood. 6. Eeqisteation as Indbpeabiblb TrriiE. XTV. APPEAL. 1. FeOM the DECLAEATION. 2. Fbom Dismissal of Petition oe Eefusal to make Dbcla- BATION. 3. Fbom Obdee on Petition to Eecall oe Vabt Cbbtificate (see post, XIX.) XV. PEODUCING DOCUMENTS OF TITLE. S 258 Declaration of Title. XYI. CEETIPICATB OP TITLE. XVn. SUBSTITUTING SBPAEATE CEETIPICATB. XVm. DUPLICATE CEETIPICATB. Xrx. EECALLING OE VAETING CEETIPICATB. XX. COSTS. I. INTBRPRETATION OF TERMS. In the constmction of [the] Act (except where the context or other provisions of the Act require a different construction) the word " person " shall include a body poUtic or corporate ; the word " possession " shall include receipt of the rents and profits ; and the word " land " shall not include any incorporeal hereditaments, but shall include aE corporeal tene- ments and hereditaments not expressly excepted : (25 & 26 Yict.- c. 67, S.48.) n. WHO MAT APPLY. 1. Geneeailt. Every person claiming to be entitled to land in possession for an estate in fee simple, either absolutely or subject to any incumbrances, estates, rights, or interests, vested or contingent, or claiming to have a power of disposing of land for his own benefit for an estate in fee simple in posses- sion, either absolutely or subject to any incumbrances, estates, rights, or interests vested or contingent .... mayapply to the [Chancery Division] by petition in a summary way for a declaration of title : {Id., s. 1.) Persons entitled to apply for registration under 25 & 26 Vict. c. 53, were also entitled to apply; but no appUcation under tha.t Act can now be enter- tained : (38 & 39 Vict. c. 87, s. 126.) Ko such petition shall be admitted as to lands of copyhold or customary tenure : (25 & 26 Vict. c. 67, s. 4) 2. Two OE MOEE Feesons. Any two or more persons claiming to have together such estate or interest in land as would have enamed any one person to petition as aforesaid, may join in such a petition, and such proceedings shall be had thereupon as in the case of a single petitioner : {Id., s. 9.) 3. Maeeied Women. Where any married woman is desirous of maldiig any application, giving any consent, or doing any act, or becoming party to any proceeding under [the] Act, her husband's concurrence shSl be required, and she shall be examined apart- from her husband touching her Imowledge of the nature and effect of the application or other act, and it shall be ascertained that she is acting freely and voluntarily ; and such examination may be taken by the court or such persons as are authorised to take acknowledgments of deeds by_ married women under [3 & 4 Will. 4, c. 74], and .... such examination shall be certified to the court : {Id., s. 36.) A married woman entitled to her separate use, and not restrained from anticipation, shall, for the purposes of [the] Act, be deemed a feme sole : 4. Infants, &o. Where any person who (if not under disability) might have made any application, given any consent, done any act, or been party to any proceed- ing under [the] Act, is a minor, idiot, or lunatic, the guardian or committee of the estate respectively of such person may make such applications, give such consents, do such acts, and be party to such proceeoings, as such 3)erson respectively, if free from disability, might have made, given, done, or been party to, and shall otherwise represent such person for ttie purposes Declaration of Title. 259 of [the] Act : Provided always, that where there is no guardian or com- mittee of the estate of any such person as aforesaid, being infant, idiot, or lunatic, or where any person the committee of whose estates if he were idiot or lunatic would be authorised to act for and represent such person under [the] Act is of unsound mind or incapable of managing his affairs, but has not been found idiot or lunatic under an inquisition, it shall be lawful for the court to appoint a guardian of such person for the purpose of any proceedings under {the] Act, and from time to time to change such guardian : {Id., s. 37.) 5. Change op Parties. Proceedings under [the] Act shall not abate or be suspended by any death or transmission or change of interest, but in any such case of death or transmission or change of interest it shall be lawful for the court, where it sees fit, to require notices to be given to persons becoming interested, or to make any order for ^scontinuing, suspending, or carrying ' on the proceedings, or otherwise in relation thereto, which to the court may appear just : (Id., s. 38.) nL PETITION FOR DECLARATION. 1. Form. Every petition for a declaration of title shall contain an exact description in their actual state of the lands as to which the declaration is sought, stating particularly the boundaries thereof, and the lands on which the same and every part thereof abut, and, so far as conveniently may be, the names and descriptions of the owners and occupiers of such last-mentioned lands : (Sched. to 25 & 26 Vict. c. 67, r. 1.) Every such petition shall state what incumbrances, estates, rights, and interests, if any, the petitioner admits to afEect his title, and subject to which he seeks to have his title declared, and shall be in such form as the court shall by general order direct : (25 & 26 Vict. c. 67, s. 2.) No general order has been made. 2. Sebtice on Registbae. It shall be lawful for the court, by general order' or otherwise, if it shall think fit, to require that the registrar .... shall be served with notice of such petition, and the registrar shall thereupon be made a party to and attend the proceedings on such petition, and the costs thereby properly incurred shsil be paid by the petitioner : {Id., s. 5.) IV. ORDER FOR INVESTIGATION OF TITLE. The court on the hearing of any such petition, on being satisfied that the petitioner has proved such a possession, and has stated such a title as, if established, would entitle him to a declaration under [the] Act, shall make an order for the investigation of the title in the same way as if the petitioner had obtained as vendor a decree for the specific performance of an agreement for sale of the land in question for the estate claimed in his petition : {Id., s. 6.) V. INVESTIGATION OF TITLE. On the investigation of the title to the lands as to which the declaration is sought, the identity of the lauds described in the petition, with the parcels as described in the title deeds, shall be established by affidavit or otherwise, as the court may deem just : (Sched., r. 2.) The court may, if it shall deem it necessary or proper, require the petitioner to lodge in court a map or plan of the lands in question : (Sched., r. 3.) s 2 260 Declaration of Title. YI. AJPFIDAVIT AS TO TITLE. No ... . order [for a declaration of title] shall be made mitil the petitioner and his solicitor, and any other person whom the court may- require, shall have made and filed an affidaTit that to the best of their respective knowledge, information, and belief all settlements, deeds, documents, instruments, maps, plans, and papers relating to the title to the land in question have been produced to the court, or the cause of their non-production has been fuUy and fairly explained, and that all facts material to the title have been fuUy and fairly disclosed to the court : Provided always, that the court may dispense with such affidavit either from the petitioner or his solicitor when it shall think it reasonable so to do, or may permit the same to be modified as circumstances may seem to require : (25 & 26 Yict. c, 67, s. 10.) YII. SECURITY FOR COSTS. No ... . order [for a declaration] shall be made untU the petitioner shall have given security to the satisfaction of the court for payment of all costs, if any, which may be awarded to any person who may oppose the petitioner's right to the declaration prayed for : (Jd., s. 9.) Security is ordered when the order nisi is made for a declaration: (Be Roberts, L. Rep. 10 Eq. 402.) In one case the security required was 40Z. Yin. REGISTER OE INOUMBRAlirCES AND ESTATES. A register [is] kept .... wherein any person having or claiming to have aay estate, right, title, or interest in or to any land, or having or claiming to have any incumbrance thereon, [is] at liberty to enter his name and address, with the name of the county, parish, and township in which such land is situated and when any person shall have made such entry the court shall not make an order under [the] Act unless it is satisfied, after such evidence as it shall think sufficient, that notice of the application for such order has be^n given to such person as shall have made such entry in a reasonable time before such order is actually made : (25 & 26 Yict. c. 67, s. 39.) IX. PETITION OPPOSING DECLARATION. Any person may, at any time before the proposed declaration of title has been made, petition the court in a summary wayio be heard against the making thereof, and the court shall thereupon fix a time for the hearing of such petition, and shall, if necessary, enlarge the time for making the declaration until such petition shall have been disposed of : (Id., s. 12.) On the hearing of such petition [in opposition] the court may introduce such restrictions or qualifications in the title sought to be declared as the justice of the case requires, or may reserve the rights of any person or class of persons, or may refuse to make any declaration of title : {Id., 8. 13.) X. DISMISSAL OF PETITION FOR DECLARATION. If the court,- on such investigation, shall not be satisfied that the petitioner has sho-wn such a title as it would have compelled an un-vriUing purchaser to accept, then it shall dismiss the petition, but subject to the right of appeal .... mentioned [post, XIY.J: [Id., a. 7.) XI. Order nisi for declaration of title. 1. Making Oedee. In case the court is satisfied after such an investigation that the Declaration of Title. 261 petitioner has shown such a title as it would have compelled an unwiUing purchaser to accept, it shall, on the conditions hereinafter mentioned being complied with, make an order that on some day, not less than three months from the date of the order, a declaration shall be made establishing the petitioner's title, unless in the meantime cause is shown to the contrary ; and the court may enlarge the time for so showing cause as often as it may deem proper : (Id., a. 8.) The court ordered the declaration to be made at the end of three months : (Be Roberts, L. Rep. 10 Eq. 402.) 2. Seeving Copt on Adjoining Ownebs, &c. The petitioner, after obtaining the order for a declaration of title, shall cause a copy thereof, together with the description of the lands in question, with any engraved or lithographed plan thereof (if any exists) to be served on every adjoining occupier and owner, or on such of them and on such other persons (if any) as the court may direct to be so served : (Sched., r. 4.) Every such copy served on any adjoining occupier or owner, or deposited as aforesaid, shall state that any person wishing to show cause against the making of the proposed declaration may do so by presenting a petition in a summary way to the [Chancery Division] at any time before the day appointed for making the proposed declaration : (Sched., r. 6.) 3. Depositing Oopt foe Inspection. [The petitioner] shall also cause a copy or copies thereof to be deposited in some office or pla«e, offices or places, to be appointed by the court on or near to the lands in question, to be accessible at aU reasonable times to all persons desirous of examining the same, a-nd notice of every such deposit shall be affixed in some public place or places on or near to the lands in question : (Sched., r. 6). XII. ADYERTISEMENTS. The petitioner after obtaining such order shall give notice of the same by advertisement in such newspapers and at such times as the court may direct, and in any other manner which the court may deem expedient for the purpose of informing all persons interested thereof, and as may be directed by any general or special order in that behalf : (25 & 26 Vict, c. 67, 8.11.) The petitioner, after such deposit shall have been made [as mentioned swp., XL, 3,] shall cause advertisements to be inserted three times at least in such newspapers on such days as the court shall direct, stating the said order, and stating also where any copy has been so deposited for inspection : (Sched., r. 7.) The court in one case, where the property was iu London, ordered the order to be advertised three times, at three days' interval, in each of three London newspapers : [Be Roberts, L. Rep. 10 Eq. 402.) Unless the last of such advertisements is made within four weeks next after the date of the order, the time thereby fixed for showing cause against the same shall be enlarged for one calendar month, or such further time as the court shall direct : (Sched., r. 8.) XIII. THE DECLARATION" OF TITLE. 1. Wheee made. If no petition has been presented against the proposed declaration of title within the time in that behalf limited, or if, having been presented, the court shall be of opinion that no sufficient ground has been shown for refusing to maj^e a declaration of title, then the court shall, after the 262 , Declaration of Title. expiration of the time limited for showing cause, upon being satisfied that the required notices hare been duly given, and that all other requisitions have been duly complied with, ma£:e a declaration that the original petitioner has such titl«to the land in question aa he sought to establish by his petition or such title, subject to any restrictions, reservations, or qualifications which it may deem necessary or proper to introduce : (25 & 26 Vict. c. 67, s. 15.) 2. Sbpaeate Declaeations. Instead of a single declaration of title .... the court may, on the application of the petitioner, make separate declarations .... as to the title of separate parts of the land referred to in the petition : {Id., a. 25.) 3. Beseeting Rights undee Lost oe Desteoted Deeds. If it shall appear to the court that aU or any of the title deeds relating to the land in question have been lost or destroyed, the court may, if it shall think fit, reserve the rights of all persons under any such lost or destroyed deeds : {Id., s. 14.) 4. "When Final. [See post, XIV.] 5. Effect. (a) As to Pwrehaserfor Valuable Consideration. Such declaration of title, as soon as it shall have become final for the purposes of [the] Act, shall in favour of any person thereafter deriving title as a purchaser for valuable consideration of the land therein referred to, or of any part thereof, or of any estate, right, or interest thereia, by, from, through, or under the person whose title has been so declared, be deemed and taien to have correctly declared the same, but save as afore- said such declaration shall have no force or effect whatever as to the title of the land comprised therein : {Id., a. 24.) (b) As to Taxes, Easements, amd Leases. The declaration of title shall not affect any of the claims, rights, or matters hereinafter mentioned, that is to say : Land tax, succession duty, tithe rentcharge, rights of common, rents payable to the Crown, public rights of way, liability to repair high- ways by reason of tenure, rights of way, watercourses, rights of water and other easements, or servitudes, manorial rights and franchises, leases or agreements for leases for any term not exceeding twenty-one years where there is occupation under the same: {Id., B. 29.) (c) As to Incumbrances. [Where] at the time of making such declaration of title as aforesaid there may be estates, rights, or interests in the land which may not be saved by the declaration .... all money received by the person . . . , alienating [for valuable consideration] shall be deemed to have been received by him in trust to invest the same in the purchase of lands to be settled to the uses and on the trusts to and on which the lands so alienated stood limited at the time of such alienation : Provided always, that this clause shall not be deemed to impose any liability on any person who may have received any money on such alienation as a trustee, so far as relates to money which he may have duly applied in execution of the trusts reposed in him : {Id., a. 35.) {d) Irregularity or Informality in Proceedings. The declaration of title, when it has .... become final for the purposes of [the] Act, shall not be set aside or called in question by Declaration of Title. 263 reason of any irregularity or informality in the proceedings previous to the making thereof : {Id., s. 20.) (e) When, Procured hy Fraud or Falsehood. If in the course of any proceeding before the court under [the] Act any person acting either as principal or agent shall, knowingly and with intent to deceive, make or assist or join in or be privy to the making of any material false statement or representation, or suppress, conceal, oi: assist or join in or be privy to the suppressing, withholdiDg, or conceaUng from the court any material document, fact, or matter of information, every person so acting shall be deemed to be guilty of a naisdemeanor .... [and] the order or declaration of title obtained by means of such fraud or falsehood shall be null and void for or against all persons other than a purchaser for valuable consideration without notice : (Id., s. 44.) 6. Registration^ as Indefeasible Title. Every declaration of title might be registered as an indefeasible title (Id., s. 21) prior to the passing of 38 & 39 Vict. c. 87, by sect. 125 of which it is enacted that no future applications under 25 & 26 Yict. c. 53, are to be made. From and after [such] registration .... in the .... register of estates with an indefeasible title, such land [is] subject to the provisions of [25 & 26 Yict. c. 53] : (25 & 26 Vict. c. 67, s. 30.) XIV. APPEAL. 1. Feom the Declaeation. Any person may, at any time within six months from the making of any such declaration, appeal therefrom to the Court of Appeal .... and such court shall on the hearing of the appeal make an order confirming, varying, or annulling the declaration as it may see fit ; but if there is no such appeal, then the said declaration shall, at the expiration of the said six months, become final for the purposes of [the] Act : (Id., s. 16.) Any person may appeal from any such order of the Court of Appeal to the House of Lords at any time within six months from the maJring thereof, and the said House may make an order confirming, varying, or annulling the said declaration as to them shall seem just ; but if there is no such appeal, then the declaration, as approved by the said Court of Appeal .... shall at the expiration of the said six months become final for the purposes of [the] Act : (Id., s. 17.) In case of any such appeal as aforesaid to the House of Lords, the declaration of title as finally approved by them shall become final for the purposes of [the] Act : (Id., s. 18.) 2. Fbom Dismissal op Petition oe Refusal to make Dbclaeation. In case the court shall have dismissed the original petition on the ground that the petitioner had not shown such a title as it would have compelled an unwilling purchaser to accept, or if, on the hearing of any petition against the makmg of the declaration of title prayed for, the court shall have refused to make any declaration of title, the original petitioner shall have the same rights of appeal to the Court of Appeal and to the House of Lords as is ... . g^ven [by the Act] to any person appeal- ing against a declaration of title actuaUy made : (Id., s. 19 ; and see svp'. 1.) 3. Feom Oedeb on Petition to Recall oe tabt Ceetipicate. [See post, XIX.] 264 Declaration of Title. XV. PRODUCING DOCUMENTS OP TPTLE. Before any .... certificate [of title] shall be sealed, the petitioner shall produce to the court such of his deeds and mimiments of title as the court shall require, and the same shall be stamped or marked by the officer issuing the certificate in such manner as the court shall by general orders direct, for the purpose of showing that a declaration of title has been made as to the land therein comprised, or as to such part thereof as is comprised in the declaration : {Id., s. 23.) XVI. CERTIPICATE OP TITLE. Any person who has obtained in manner aforesaid a final declaration of title shall be entitled to receive from the court, on payment of the proper fees, and on production of his title deeds for the purpose .... mentioned [sivp., XV.], a certificate under the seal of the court setting forth the title so declared, and further stating that the time for appealing has expired, and such certificate shall be conclusive evidence of the facts therein stated : {Id., a. 22.) Instead of .... a single certificate the court may, on the application of the petitioner .... give separate certificates as to the title of separate parts of the land referred to in the petition : {Id., s. 25.) XVII. SUBSTITUTING SEPARATE OERTIPICATES. If for the purpose of a sale or other disposition of the land comprised in any certificate of title, or of any part thereof, the holder of any such certificate shall be desirous of having separate certificates of title relating to separate portions of the land, it shall be lawful for the court, on petition by such holder, to order his certificate to be cancelled, and in lieu thereof to give him separate certificates for separate parts of the land comprised la the certificate so cancelled; and every such separate certificate shall refer to and state the date of the cancelled certificate, and shall have the same effect as to the land therein comprised as if it had been given at the time of such date, but no such substitution of certificates shall in any way prejudice or affect the title of any person who shall previously thereto have become entitled to any part of the land comprised in the original certificate, or any interest in the same : {Id., 8. 26.) The land mentioned in every such separate certificate [might] be entered upon the register of estates with an indefeasible title : {Id., s. 27.) No applications under 26 & 27 Vict. c. 53, are in future to be made : (38 & 39 Vict. c. 87, s. 125.) XVIII. DUPLICATE CERTIPICATE. If any certificate of title shall be lost or destroyed, the court may issue a fresh certificate in lieu of that so lost or destroyed, expressing on the face thereof that it is a duplicate, but no such fresh certificate shall be of any avail against any person who may have already derived title under the original certificate : (25 & 26 Vict. c. 67, s. 28.) XIX. RECALLING OR VARYING CERTIFICATE. If, at any time after any such declaration of title as aforesaid has been made, any person shall consider himself to be aggrieved thereby, it shall be lawful for him to present a petition praying that the same may be recalled or varied in such maimer as may be just, and the court shall thereupon proceed in the heifring of such petition in the same manner as if the same had been presented before the declaration of title had been Declaration of Title — Deeds. 265 made, and the court may, on the hearing of the said petition, annul the declaration and order the certificate or certificates to be given up to be cancelled, or may make such variations therein as it may deem just, and may, if it shall think fit, also direct the registry thereol, if made, to be caoceUed; but no proceeding on any such petition shall prejudice or affect the title of any person who before amy such annulling or variation shall have acquired a title under the said declaration as a purchaser for valuable consideration of the said land or of any estate or interest therein : {Id., s. 31.) The court may, on the hearing of any such last-mentioned petition, make any order which it may deem just, restraining the person who has obtained the declaration, and all persons claiming by, through, from, or under him otherwise than as a purchaser for valuable consideration, from in any maimer dealing with the said land until such petition shall have been disposed of : (Id., a. 32.) All proceedings on any sllch petition shall be liable to the same right of appeal as in the case of petitions presented before such declaration of title was made : {Id., s. 33, and see sup. XIV.) XX. COSTS. The court shall have power to order costs either as between party and party or as between solicitor and client to be paid' by and to any person, party to any proceeding under [the] Act, and to give directions as to the fund out of which such costs shall be paid : {Id., s. 34.) DECREE. [See Judgment.] DEEDS. I. SETTLEMENT. 1. On Absolute Dieection to Settle. 2. On Dieection to Settle if Pabties Dippeb. II. ENEOLMENT [see Centeal Office, Chabitibs.] I. SETTLEMENT. 1. On Absolute Dieection to Settle. When any judgment or order directs any instrument to be absolutely settled by the judge, on the return of the summons to proceed [see Chambebs] the party entitled to prepare the draft is directed to leave it at chambers, and proceedings are adjourned to a later day : (Dan. 1147.) At the adjournment the draft is gone through by the chief clerk, and auypoints disposed of : {Id.) The judge may obtain the assistance of any of the conveyancing counsel of the court : [See Oontetancing Counsel.] When the opinion of such counsel is obtained, an appointment is obtained, and notice thereof served : [See Chambees.] At such appointment the draft is finally settled, and marked for engross- ment: (Dan. 1147.) ^ In urgent cases the chief clerk issues his memorandum to the convey- ancing counsel on the return of the summons to proceed, and adjourns the proceedings till the draft is settled. The draft, or a fair copy certified by 266 Deeds — Defence Acts. the solicitor to be true, is left at chambers, and settled on an appointment obtained for the purpose : [See Chambebs.] 2. On Dieections to Settle if Parties Dipfee. This should nqt be given where an infant is a necessary party : (Dan. 1147.) Where, by any [judgment] or order a deed is directed to be settled by the judge in chambers in case the parties differ about the same, a summons to proceed shall be issued : (0. O. 35, r. 17.) Upon the return of such summons the party entitled to prepare such deed [is] directed to deliver a copy thereofj ■within such time as the judge shall thmi At, to the party entitled to object thereto; and the party so entitled to object [is] directed to deliver to the other party a statement in writing of his objections (if any) within eight days after the delivery of such copy ; and the proceeding shall be adjourned until after the expiration of the said period of eight days : (IS.) If the statement of objections is not delivered within such time, or the enlarged time, the party will be considered to have approved the deed : (Dan. 1148.) When the deed has been settled, it is engrossed by the party having conduct of the proceedings, and brought into chambers : (Dan. 1148.) Ad affidavit must accompany the engrossment and verify it : (See form given in Sched. 19 to the Regulations of August, 1857.) A memorandum of approval is written in the margin of the first sMn of the engrossment, and signed by the chief clerk, who also initials the other skins : (Dam. 1148.) The chief clerk generally certifies the settlement by the judge : (Ji.) II. ENROLMENT. [See Centeal Office, Ohaeities.] DEFENCE ACTS. I. PURCHASE OF ,LANDS, &c., BY SECEETAET FOE WAE. n. TAKING LANDS, &c., COMPULSOEILT. ni. PAYMENT OE COMPENSATION FOE OMITTED INTEBESTS. IV. PAYMENT IN OF PUECHASE OE COMPENSATION MONEY. 1. Wheke Owneb tindee Disability, ob not absolutelt entitled. 2. On Failtiee to show Title. V. INVESTMENT AND PAYMENT OUT. VI. SEEVICE ON SECEETAEY OP STATE. Vn. POWEE OF SECEETAEY TO USE LANDS CLAUSES ACTS. I. PURCHASE OP LAiroS, &c. BT SECRETARY FOR WAR. It shall be lawful for [Her Majesty's Principal Secretary of State for the War Department for the time being] from time to time to contract for and purchase, for and on behalf of Her Majesty, her heirs or successors, any messuages, bmldings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments, or to take or purchase any lease of the same which shall in their judgment be desirable to be purchased, for and on behalf of the ... . ordnance or barrack service, or the defence of the realm, upon such terms as to the said [secretary] shall seem meet ; and to enter into any contracts necessary for that purpose : (5 & 6 Vict. c. 94, s. 9, as altered by 18 & 19 Vict. c. 117.) Defence Acts. 267 Bodies politic and persons under disability may agree with sueh secre- tary for such sales or leases : (see 5 & 6 Vict. c. 94, ss. 10, 18.) n. TAKING LANDS, &c., COMPULSORILT. In case any such bodies or other persons [by the Actsx] authorised to contract on behalf of themselves or others .... or any other person or persons interested in any such lands [&c.] shall, for the space of fourteen days next after notice in writing [giTen by the Secretary for War, refuse to treat, or to accept the sum offered, or be prevented by absence from treating, possession may be given as in the Act mentioned, and a jury summoned who shall] find the compensation to be paid, either for the absolute purchase of such lands [&c.], or for the possession or use thereof, as the case may be : (5 & 6 Yict. c. 94, s. 19.) If the compensation claimed do not exceed 200i!., the same shall be settled by two justices : (23 & 24 Vict. c. 112, s. 13.) Where, by reason of absence from the United Kingdom, any party i& prevented from treating, or caimot, after diligent inquiry, be found, the amount of such compensation shall be determined by valuation [by a sur- veyor appointed by] two justices : (23 & 24 Vict. c. 112, s. 14.) III. PAYMENT OR COMPENSATION FOR OMITTED INTERESTS. If at any time after the said Secretary of State has entered upon any lands vested in him under [the] Act, any party appear to be entitled tO' any estate, right, or interest in or charge affectiag such lands which through mistake and inadvertence has been omitted to be purchased or compensated for, the said Secretary of State shall nevertheless remain in the undisturbed possession of such lands, and shall be deemed to have^ an indefeasible title thereto, but shall pay compensation for any sueh estate, right, interest, or charge, which but for [the] enactment might be recovered or enforced, and also pay to such party, or to any other party, who may establish a right thereto, full compensation for the mesne profits or interests which would have accrued to such parties respectively in respect thereof, during the interval between the entry of the said Secretary of State thereon, and the time of the payment of such compensation by the said Secretary of State so far as such mesne profits or interests may be recoverable at law or in equity : [and] such compensation shall be agreed on or awarded and paid in like manner as the same would have been agreed on or awarded and paid in case the said Secretary of State had purchased or compensated for such estate, right, interest, or charge, before his entering upon such lands, or as near thereto as circumstance will admit : (23 & 24 Vict. c. 112, s. 36.) rv. PAYMENT IN OF PURCHASE OR COMPENSATION MONEY. 1. Wheee Ownee TiifDEK Disability oe not Absolutelt Inteeested. Where any money shall have been or shall be agreed, or shall have been or shall be required by the verdict of any jury, to be paid or given by th» said [secretary] for the absolute purchase or exchange of any messuages, builiings, castles, forts, lines, or other fortifications, manors, lands, grounds, tenements, or hereditaments, or of any reversion as aforesaid, or- of the enfranchisement of any copyhold or purchase of any other interest belonging to any such body, or other person or persons under any disabflity or incapacity, or not having the absolute interest therein, the- said money, if the same shall amount to or exceed the sum of 200J., shall 268 Defence Acts. be paid into the [Bank of England in the name and with the privity of the Paymaster-General in the matter of the Acts to the credit of the persons claiming to be interested therein (naming them) : (5 & 6 Vict, c. 94, s. 25, as amended by 22 & 23 Vict. c. 21, s. 8.) When the money is imder 200i!. and over 201., it may, at the option of the landowner, be paid to three trustees : (6 & 6 Vict. c. 94, s. 27.) [Upon the filing in the Chancery Division of the certificate of the Paymaster-General, with the receipt annexed, of the payment in, the hereditaments in respect whereof the same is paid shall be vested in the Secretary for War] for the service of the .... ordnance department, or for the defence of the realm, in trust for Her Majesty, her heirs and successors : (5 & 6 Vict. c. 94, s. 25, as amended by 18 & 19 Vict. c. 117 ; and22&23'Vict. c. 21, s. 8.) Where any compensation is reqmred to be paid into the Bank of Eng- land .... under [the Acts], there shall be added thereto a sum of 30i. as an equivalent for the expenses consequent upon such payment,.and upon such compensation, with such additional sum (which shaU. be deemed part of such compensation), being so paid, the said Secretary of State shall be discharged from all liability in respect thereof, and the Court .... may allot to any tenant for life or for any other qualified estate in respect of any expenses of investment incurred by Mm, any portion of any such compensation which the court may deem just : (23 & 24 Vict. c. 112, s. 21.) Service on the Secretary of War, of applications concerning a fund paid in under this section, is unnecessary : (Seton, 1472.) 2. On Pailtjke to Show Title. The said Secretary of State may in any case at or after the expiration of three months from the time at which the compensation for any lands has been agreed upon or otherwise ascertained, if the owner thereof have not in the meantime made out a title thereto to the satisfaction of the said Secretary of State, pay such compensation, vrithout such addition as afore- said [see sup. 1] into the Bank of England . . . ., in manner herein- before referred to, and such payment shall discharge the said Secretary of State from all liability in respect of the money so paid : (23 & 24 Vict, c. 112, 8.22.) As to effect of payment in, see swp. 1. V. mVESTMBNT AND PAYMENT OUT. The [Chancery Division is] empowered, in a summary way, upon motion or petition for or on behalf of any person or persons interested in or entitled to the benefit of the money so paid to and received by the [Pay- master-General], or the interest or produce thereof, and upon reading the certificate [of the Paymaster-General] concerning the same .... and receiving such further satisfaction as [the court] shall think necessary, to make and pronounce such orders and directions for paying the said money or any part of the same, or for placing out such part thereof as shall be principal in the public funds, or upon Government or real securities and lor payment of the dividends or interest thereof or any part thereof to the respective persons entitled to receive the same, or for laying out the principal or any part thereof in the purchase of other lands or heredita- ments, to be conveyed and settled to, for, and upon the same uses, trusts, interests, or purposes as the .... messuages [&c.], so purchased or taken, stood settled at the time of the payment of such money as aforesaid, eras near thereto as the same can be done, or otherwise concerning the disposi- tion of the said money or any part thereof, and the interest of the same or any part thereof for the benefit of the person or persons entitled to and Defence Acts. 269 interested in the same respectively, or for appointiag any person or persons to be a tmstee or trustees for all or any of such purposes as the said court shall think just and reasonable : (5 & 6 Yict. c. 94, s. 26.) All orders and directions in relation to any money paid [in] or the securi- ties in or upon which the same may be iuvested, or the dividends or interest on such money and securities, which under the .... Acts the [Chancery Division] is empowered to make or give on motion or petition, may be made or given by the [judges of such division] while sitting at chambers, upon summons in like manner as in other cases in which proceedings may be so had before [such judges] : (23 & 24 Vict. c. 112, s. 23.) This section has not abohshedthe practice by motion or petition: (Seton, 1473 ; and see iSe Maynard, there cited, as to the costs of a petition for investment.) [Where money is paid in on account of failure to deduce a title for three months] the court .... jnay, upon application for payment of such money to the party entitled, in case the court be of opinion that there was no unreasonable delay in deducing the title, or that a good title was shown, order all or any costs occasioned by such payment into court to be paid by the Secretary of State : (23 & 24 Vict. c. 112, s. 22.) VI. SERVICE ON" SECRETARY OF STATE. Any notice, summons, or other document required to be served on the said Secretary of State may be served by being delivered to the Solicitor for the "War Department for the time being, or by being left for him thereat ; and any notice, summons, writ, or other document required to be given by or on behalf of the said Secretary of State shall be given under the hand of such solicitor : (23 & 24 Vict. c. 112, s. 45.) VII. POWER or SECRETARY FOR WAR TO USE LANDS CLAUSES ACTS. For the purpose of acquisition of any messuages, lands, tenements, and hereditaments wanted for the service of the Admiralty or of the War Department or for the defence of the realm, it shall be lawful for Her Majesty's Principal Secretary of State for the War Department for the time being to use all or any of the powers and provisions by the Lands Clauses Consolidation Act, 1845 given to promoters of under- takings, as therein mentioned, and for such purposes, the said principal secretary shall be deemed and taken to be the promoters of an under- taking within the meaning of the said Act, and all the powers and provisions thereof shall, if used by Her Majesty's Principal Secretary of State for the War Department, be treated as if they were contained in the 5 & 6 Vict. c. 94 ; for the purpose of being used and made avail- able by the principa,l officers of Her Majesty's ordnance, and had been transferred to the said principal secretary for the time being by [18 & 19 Vict. c. 117] for the purposes aforesaid; [but not so as to] authorise any purchase otherwise than by agreement of any land, except according to [5 & 6 Vict. c. 23], or prejudice or afPect the powers or authorities of the said principal secretary for the time being under the last-mentioned statutes, or either of them : (23 & 24 Vict. c. 107, s. 7.) It shall be lawful for [the Secretary for War] (if [he] shall think proper so to do) to use and avail [himself] of all the powers and provisions contained in the Lands Clauses Consolidation Act, 1845, for the purpose of ascertaining, making, and paying compensation for and extinguishing all rights of common, commopable and other rights in, over, or affecting any lands the soil of which has at any time been or shall hereafter be pur- chased or taken .... under [5 & 6 Vict. c. 94], and for such purpose the 270 Defence Acts — Discontinuance and Withdrawal. [Secretary of War] BhaU be deemed and taken to be promoters of an lindertaldng within the meaning of the said Lands Clauses Oonsolicbtion Act, 1845, and all the powers and provisions of the last-mentioned Act may, if necessary, be treated as if they had been contained in the . . . . 6 & 6 Vict. c. 94, for the purposes of being used or made available by the ■said [secretary, but not so as to] prejudice or affect [his] powers and authorities under the last-mentioned statute : (17 & 18 Vict. c. 67, s. 1.) The said Secretary of State may, if he think fit, as weU in respect of lands required to be kept free from buildings as in respect of lands taken under [the] Act, use and avail himself of all or any of the powers and authorities by the Lands Clauses Consolidation Act, 1845, given to " the promoters of the undertaking ;'' and every party enabled by the last mentioned Act to sell and convey or release lands or any estate or interest therein to "the promoters of the undertaking" shall have the same or the like powers to contract, and a^ee with the said Secretary ■of State as to the compensation to be paid in respect of any lands, estates, or interests taken or affected under the provisions of [the] Act ; [but] nothing in this enactment shall prejudice or afEect the right to exercise the other powers or authorities given [by the Act] : (23 & 24 Viet, c. 112, s. 29 ; and see Seton, 1473.) DISCONTINUANCE AND WITHDRAWAL. I. BY PLAINTIFF. 1. By Notice without Leave. 2. Bt Leave. II. BT DEFENDANT. III. BT EITHER PABTT BT CONSENT. I. BT PLAINTIFF. 1. By Notice vfiTHOUT Leave. The plaintifE may, at any time before receipt of the defendant's state- ment of defence, or after the receipt thereof before taking any other pro- ceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action or withdraw any part or parts of his alleged cause of complaint : (O. XXIII., r. 1.) A letter from the plaintiff's solicitor to the defendant's solicitor, stating "that they " are instructed to proceed no further with the action" is suffi- cient notice : {The Pomerania, 39 L. T. Rep. K. S. 642.) The rule does not entitle a plaintiff to discontinue after the action has been entered for trial : (Matthews v. Antrohus, 49 L. J. 80, Ch.) {When the plaintiff discontinues by notice] thereupon he shall pay the endant's costs of the action, or, if the action be not wholly discontinued, the defendant's costs occasioned by the matter so withdrawn : (O. XXIII., r.l.) Such costs shall be taxed : (Id.) A defendant may sign judgment for the costs of an action if it is wholly discontinued, or for the costs occasioned by the matter withdrawn, if the a.ction be not wholly discontinued : (O. XXIII., r. 2a, June, 1876 ; and see Costs.) As to the form of fi. fa. for such costs : (see Bolton v. Bolton, L. Rep. 3 Ch. Div. 276.) Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action : (O. XXIII., r. 1.) Discontinuance and Withdrairel — Dlscooery. 271 2. By Leave. Save as in tMs rule otherwise provided [see sup. 1], it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a judge, but the court or a judge may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may seem fit, order the action to be discontinued, or part of the alleged cause of complaint to be struck out : (0. XXIII., r. 1.) The discretion given must be exercised with certain limitations, and so as not to take away from the defendant any advantage to which he is fairly entitled : {Stahlschmidt v. Walford, L. Rep. 4 Q. B. Div. 219 ; 40 L. T. Rep. N. S. 194; 48 L. J. 348, Q. B. ; 27 W. R. 412.) Where the plaintiff had given an undertaking as to damages, the court directed a reference as to them : {Newcomen v. Ooulson, L. Rep. 7 Ch. Div. 764; 38 L. T. Rep. N. S. 275 ; 47 L. J. 429, Ch. ; 26 W. R. 360.) As to signing judgment for costs, see O. XXIII., r. 2a, June, 1876, cited sup. 1. II. BT DEFEOTJANT. The court or a judge may in Uke manner [see sup. I., 1], and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave : (O. XXIII., r. 1.) Ah to the terms imposed, see the cases cited under Costs, sup. 222. TTT. BT EITHER PARTY BT CON'SElSrT. Where a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant, upon producing to the proper ofiB.cer a consent in writing signed by the parties : (O. XXIII., r. 2.) DISCOVERY, I. ACTION FOR. II. ON INTEEEOGATOEIES. 1. DeLIVEKT or lUTBEEOaATOBIES. (a) In Ori/mary Ccnes. (1) Who may interrogate. (2) What Qaestions allowed. (3) At what Stage allowed. (4) Order for Interrogatories. (6) In Case of Corporation Compamy, S[e. (c) Reserving Question of Discovery. (d) Form of Interrogatories. (e) Setting aside a/nd strihimg out Interrogatories. (/) Costs of improper Interrogatories. 2. Answer. (a) When filed. , (b) Form and Primtvng. (c) Objections to Answer. Id) How Sufficiency determined. (e) Further Answer. (/) FaiVwre to ConvpVy with Order. 272 Disscovery. (1) Liability to Attaohment. (2) Liability to have Action dismissed or Defence struck out. {g) How used, as Evidence. IIL AS TO SOLICITOE'S AUTHOEITT POE WEIT. IV. AS TO PAETNEES IN PIEM. T. OP DOCUMENTS. 1. By Ajtidavit. (a) Application for Order. (b) Beservimg Questwn of Discovery. (c) At what Stage ordered. (d) Where Order made. (e) Form of Affidawit. (f) FvHher Affidamt. (g) Failure to comply with Order [see ««p. II., 2 (/) ] 2. Bt Inspbctioit. (a) Notice to Produce. (6) Notice to Inspect. (c) Failure to gime Inspection^ (1) Order for Inspection. (2) Depriving Party of Eight to use Documeni/S. (3) Liability to Attaoliment. (4) Liability to have Action dismissed or Defence struck out. 3. By Pboduotion. (a) On Oath by Order. (b) On Notice at the Trial [see Etidencb.] VI. AS TO PEOPEETT. 1. What Obdee may be made. 2. How Application made. I. ACTION FOR. If the plaintiff 's claim be for discovery only the statement of claim shall shew it : (O. XIX., r. 8.) The action lies in every case in which the biU of discovery formerly lay in Chancery, except where a simpler remedy is expressly given under the Judicature Acts or Rules : {Anderson v. Ba/nTe of British Colv/nibia, L. Rep. 2 Ch. Div. 644 ; 45 L. J. 449, Ch. ; 24 W. R. 624.) £i the case of a corporation or joint-stock company against whom discovery is sought, it is improper to make an officer of the defendant company a party for the purpose of obtaining discovery from the company, as any member or officer may be ordered to be examined on interrogatories: {Wilson v. Church, 39 L. T. Rep. N. S. 413; L. Rep. 9 Ch. Div. 652 ; and see II., 1, (b).) It was not distinctly laid down in what cases a discovery only was obtainable (1 Mad. Ch. Pr. 3rd edit. 268), but the following grounds of objection to biQs of discovery were recognised : — 1. That the subject is not cognisable in any municipal court ; 2. That the court will not lend its aid to obtain a discovery for the particular court for which it is wanted ; 3. That the plaintiff is not entitled to the discovery by reason of some personal disability ; 4. That the plaintiff has no title to the character in which he sues ; 5. That the value of the suit is beneath the dignity of the court ; 6. That the plaintiff has no interest in the subject or title to the discovery required, or that an action will not lie for which it is wanted; 7. That the defendant is not answerable to the plaintiff, but that some other person has the right to call for discovery ; 8. That the policy of the Discovery. 273 law in regard to the relation in which the defendant stands exempts the defendant from being called upon for the discovery ; 9. That the defendant is not bound to show his title ; IQ. That the discovery will not be material ; 11. That the defendant is a mere witness ; 12. That the defendant cannot be called upon to criminate himself : (Cooper's Equity Pleading, 189 ; Story, 1489 ; Orry. Diap&r, L. Bep. 4 Oh. Div. 92.) The plaintiff must still show, on the face of his pleading, his title to the discovery sought, which must be necessary to nis own case, not a satisfaction of a prying into that of the adverse party. The party requiring discovery must also state a case which will, if he is a plaintiff, constitute a good ground of action, or, if a defendant, a good ground of defence. But discovery will not be refused unless it is clear that the alleged ground of action is insufficient : (St. 1490-1493a.) n. ON INTBRROGATOEIES. 1. DeIiItebt op Inteebogatokies. (a) In Ordinary Cases. (1) Who may Interrogate. The plaiatifE may, at the time of delivering his statement of claim, or at any subsequent time not later than the close of the pleadings, and a defendant may, at the time of delivering his defence, or at any subsequent time not later than the close of the pleadings, without any order for that purpose, and either party may at any time, by leave of the court or a judge, deliver interrogatories in writing for the examination of the opposite party or parties, or any one or more of such parties, with a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer : Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose : (O. XXXI., r. 1.) When third parties have appeared under Order XVI., r. 20, and have been given liberty to defend, under rule 21, the plaintiff has the right to obtain discovery nom them : (MacalUster v. Bishop of Rochester, L. Bep. 5 C. P. Div. 194 ; 42 L. T. Bep. N. S. 481 ; 49 L. J. 443, 0. P. ; 28 W. B. 584.) Persons made third parties by counter-claim cannot interrogate the original defendants : {Molloy v. Kilby, W. N. 1880, p. 105.) (2) What Questions allowed. The right to discovery is regulated by the rules formerly existing in the Court of Chancery, and the decisions at common law, when inconsistent, are no longer binding: (Anderson v. Bank of British Cohtmhia, cited sup. I. ; Mherley v. Harvey, L. Bep. 2 Q. B. Div. 524 ; 36 L. T. Rep. N. S. 651 ; 46 L. J. 518, Q. B. ; 25 W. B. 727 ; Fisher v. Owen,, L. Bep. 8 Ch. Div. 645 ; 38 L. T. Bep. N. S. 577 ; 47 L. J. 681, Oh. ; 26 W. B. 581.) In some cases the interrogatory itself will be bad, and may be struck out or set aside : (see post (e).) In other cases, the party interrogated may not be bound to answer the interrogatory, but may be only entitled to object to answer by his afldavit : (see post, 2 (c).) An interrogatory is not in itseM objectionable because the answer might tend to eliminate the person interrogated : {Fisher v. Owen, swp. ; Allhusem, v. Labowihere, L. Rep. 3 Q. B. Div. 654; 39 L. T. Rep. N". S. 207 ; 48 L. J. 34, Q. B. ; 27 W. R. 12 ; overruling on this point Atherley V. Harvey, svp.) And privilege must be expressly relied on in the afB.davit of the party interrogated, and not set up as a ground for setting aside or striking out an interrogatory. 274 Discovery. Interrogatories must be relevant and material : (Dan. 481, 487.) If it can be supposed that the dicorery may in any way be material for the purposes of the action, the party will be compelled to make it : (Dan. 488.) The court wiU loot narrowly into the question of materiality if the disooTery is such that it may be used prejudicially to the party iuterro-' gated, irrespective of the action : [Ca/rver v. Pinto L&ite, la. Rep. 7 Oh. App. 90.) A plaintiff is entitled to a discovery of facts material to his own case, or upon which the defendant relies to establish his case, but not of the evidence which the defendant proposes to adduce in support of it {Bade V. Jaeohs, L. Eep. 3 Ex. Div. 335 ; 37 L. T. Rep. N. S. 621 ; 47 L. J. 74, Ex. ; 26 W. E. 159) ; and, although the plaintiff may not be entitled to discovery of every detail, he is entitled to such information as will prevent bim from being taken by surprise, and let him know what case he has to meet : {8av/nders v. Jones, L. Rep. 7 Ch. Div. 435.) Thus, when the plaintiff sued to recover possession of land on breach of a lessee's covenant in a lease, and the defendant alleged verbal consent to the breach, the plaintiff was allowed to interrogate the defendant as to when the consent was given, and the conversation which took place, but not as to the persons in whose presence the consent was given : {Hade v. Jacobs, sup.) And when in an action for wrongful dismissal, the defendant alleged specific acts of misconduct, and also in general terms, other acts of mis- conduct, interrogatories by the plaintift as to what specific a 285 prepared at the request of the solicitor, or ultimately laid before him, if they are prepared with a bond fide intention as instructions {SouthwarJe and Vavixhall Water Conmamy v. Qaich, L. Rep. 3 Q. B. Div. 315 ; 47 L. J. 258, Q. B. ; 26 W. R. 341) ; and whether before or after litigation : {Mostyn v. West Mostyn Compcmy, 34 L. T. Hep. N. S. 581 ; Bacon v. Bacon, id. 349.) Inspection cannot be obtained of letters from a third party to the SlaintifE's solicitor, written in contemplation of and with a "view to the tigation: {M'Corquodale v. Bell, L. Rep. 1 0. P. Div. 471.) As to indorsements on counsel's briefs in other proceedings, see Waltham v. Stainton, 9 L. T. Rep. N. S. 603; 2 H. <& M. 1 ; Nicholls v. Jones, 2 H. & M. 588; Be Brown, 42 L. T. Rep. N. S. 601 ; 28 "W. R. 575.) Communications between solicitor and client, when once pri-vileged, are always privileged : {Bulloch v. Corry, L. Rep. 3 Q. B. Div. 356 ; 38 L. T. Rep. N". S. 102 ; 47 L. J. 352, Q. B. ; 26 W. R. 330.) Li an action for not unloading at the port of discharge, whereby the plaintiffs who had entered into a charter-party upon terms as to the dis- charge of the ship, similar to those in the contract of sale, and had had to pay damages in an action by the shipowner, inspection by the defendants was refused of correspondence in the plaintifE's possession between the firm and his solicitor, and the solicitor and other persons, relating to the shipowner's action : {Bullock v. Corrie, sitp.) tidependent communications between a person and his agent are not privileged : {Id.) In an action for breach of contract to deliver goods, letters from the plaintiff's solicitor complaining having been forwarded by the defendant to the company of whom he purchased, letters passing between the defen- dant and the company's agent w6re ordered to be inspected : {English v. Tottie, sup.) In an action against a bauMng company for money improperly trans- ferred from an account to another at a branch, plaintiff was allowed to inspect a letter from the manager of the branch in answer to a request from the London manager to send full particulars of the whole transac- tion : {Andicrson v. Bamk of British Columbia, sv/p.) In an action by the owner of goods shipped on the defendant's vessel, for loss caused by collision by the defendant's negligence, a compromise between the owners of the two vessels was ordered to be inspected : {Hutchinson v. Glover, L. Rep. 1 .Q. B. Div. 138 ; 45 L. J. 120, Q. B. ; and see Be Leigh's Estate, L. Rep. 6 Ch. Div. 256 ; Ba^nall v. Carlton, W. N. 1880, p. 215.} A letter written in answer to inquiries about the character of a servant is privileged in this sense only, that although it contains defamatory state- ments it wiU not support an action for libel unless malice is shown ; but it is not privileged in the sense of being privileged from production, such privilege being confined to communications with the legal advisers of the party : {Webb v. East, L. Rep. 5 Ex. Div. 108 ; 41 L. T. Rep. N. S. 715 ; 49 L. J. 250, Ex. ; 28 W. R. 336.) Inspection was refused of reports of medical men on the health of a plaintiff, in an action for injuries, whose examination had been ordered on the application of the defendants {Friend v. London, Chatham amd Dover Railway Gompawy, L. Rep. 2 Ex. Div. 437; 36 L. T. Rep. N. S. 729 ; 46 L. J. 696, Ex. ; 25 W. R. 735) ; of reports of surveys in posses- sion of the plaintiff, written and prepared solely for the purpose of the action : {The Theodor Earner, L. Rep. 3 P. Div. 162 ; 38 L. T. Rep. ¥. S. 818 ; but see Martin v. Butcha/rd, 36 L. T. Rep. N. S. 732.) 286 Discovery. See also, on the subject of privilege, Ayok., 9tli edit. 350, et seq. A party cannot protect Mmself from producing a document on the ground that its production would tend to criminate him unless he pledges his oath that, to the best of his belief, its production would tend to criminate him, and it is doubtful whether a party can protect hi m self from producing a document on the ground that its production would tend to criminate him : {Webb v. East, swp.) A party may refuse discoveirT' on the ground that it relates to his own case alone, and not to that of the other party : (Wigram on Discovery, 277 ; Kettlewell v. Bcurstow, L. Rep. 7 Oh. App. 686 ; Minet v. Morgan, L. Rep. 8 Oh. App. 361 ; Dan. 1688.) Title deeds may be inspected when they contain evidence as to- boundaries in support of the case of the party applying for inspection : {Waynes Merthyr CompoMy v. Powell's Dyffryn Steam, Coal Govypamy, cited inf.) A defendant in an action to recover possession of land may object to allow his title deeds or court rolls to be inspected : {New British Midiial Investment Company v. Peed, L. Rep. 3 0. P. Div. 196 ; 26 W. R. 354 ; Owen V. Wyrm, L. Rep. 9 Oh. Div. 29; 38 L. T. Rep. N. S. 623; 26 W. R. 644.) If a pariy swears that part of a document is immaterial or privileged liberty will be given to seal that part up : (Seton, 4th edit., 155 ; WiUon V. Northampton Railway Company, L. Rep. 14 Eq. 477 ; Waynes Merthyr Company v. Powell's Dyffryn Steam, Coal Company, W. N. 1880, pp. 141, 159.) If the party from whom .... inspection is sought objects to the same, or any part thereof, the court or a judge may, if satisfied that the right to the .... inspection sought depends on the determination of any issue or question in dispute in the action, or that for any other reason it is desirable that any issue or question in dispute in the action should be determined before deciding upon the right to the .... inspection, order that such issue or question be determined first, and reserve the question as to the .... inspection : (O. XXXI., r. 19. See Wood v. Anglo- Italian Bank, 34 L. T. Rep. N. S. 255.) (2) Depriving Party of Right to Use Documents. Any party not complying with [a notice to produce for inspection] shall not afterwards be at liberty to put any such document in evidence on his behalf in such action or proceeding unless he shall satisfy the ■court that such document relates only to his own title, he being a defen- dant to the action, or that he had some other sufficient cause for not complying with such notice : (O. XXXI., r. 14.) If the defendant has not delivered his statement of defence, the plaintifE has a " sufficient cause " for not complying with a notice to produce for inspection a title deed mentioned in the statement of claim, and is never- theless entitled to put in the deed as evidence : {Webster v. WhemaU, "W. K. 1880, p. 142; 42 L. T. Rep. N". S. 868; 28 W. R. 961.) (3) Liability to Attachment. If any party fails to comply with an order .... for .... inspection of documents, he shall be liable to attachment : (O. XXXI., r. 20.) Service of an order for .... inspection made against any party on his solicitor shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order : (0. XXXI., r. 21.) Discovery. . 287 A solicitor upon whom an order against any party for .... inspection is served under the last rule, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment : (O. XXXI., r. 22.) (4) Liability to have Action dismissed or Defence struct out. If any party faus to comply with any order .... for .... inspection of documents .... he shaU, if a plaintifE, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the court or a judge for an order to that effect, and an order may be made accordingly : (0. XXXI., r. 20.) [See s'wp. n. 2 (/)._] There is a discretion in the judge as to dismissing the action or striking out the defence : [Hartley v. Owen, 34 L. T. Rep. N. S. 752.) If a defence is struck out, the phiintifE may move for judgment as in default of pleading : (Msher v. JSughes, 25 W. R. 628.) 3. By Pbodttction. (a) On Oath hy Order. It shall be lawfnl for the court or a judge at any time during the pendency therein of any action or proceeding, to order the production by any parfy thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such action or proceeding, as the court or judge shall think right ; and the court may deal with such documents, when produced, in such manner as shall appear just : (O. XXXL, r. II.) Where a solicitor had been appointed clerk to a local board, with a salary, for conducting the legal as well as the ordinary business of the board, upon an interlocutory motion in an action for mandamus to compel production of papers, it was held by the Court of Appeal, that as such an order would prejudice the clerk's Hen, it could not be made before the trial of the action without payment into court of a sum sufB.cient to meet the amount claimed by the clerk, upon which he was to have the same lien as upon the papers ; and the court ordered that upon that being done the clerk should deliver up to the plaintiffs all books and papers claimed in the action: {Nefwington Local Board v. Eldridge, L. Rep. 12 Ch. Div. 349.) Where application is made for third parties to produce documents notice must be given to the other parties to the action : {Benyon v. Godden, W. N. 1877, p. 257.) Where the writ claims delivery up of documents in the possession of the defendants, the court will not order them to be delivered up upon an interlocutory application before the defence is put in : (Bepublic of Costa BieaY. Strousierg, L. Rep. 11 Ch. Div. 323; 40 L. T. Rep. N. S. 401; 27W. R. 512.) It is not the practice to make an order for production on the solicitor of a party against whom discovery is sought : (Cashin v. Craddock, L. Rep. 2 Ch. Div. 140 ; 34 L. T. Rep. N. S. 52.) An order for production of documents will not generally be made before jstatement of claim delivered: (Cashin v. Craddock, L. Rep. 2 Ch. Div. 140; 34 L. T. Rep. N. S. 52.) Where the defendants, before putting in their statement of defence, moved for the production by the plaintifEs of the conveyance under which "they held their land, in order to ascertain whether it contained a reserva- tion of minerals, it was held that the land having been conveyed to the plaintiffs ia fee simple, they were jarimd fade entitled to the land down to 288 Discovery. the centre of the earth, and unless the defendants could show that they ■were not so entitled the plaintiffs conld not be compelled to produce their title deeds : {Egremont Bwrial Boards. Egremont Iron Ore Compomy, L. Kep. 14 Oh. Div. 158 ; 42 L. T. Rep. N. S. 179 ; 28 W. R. 594.) There is no discretionary power in the judge as to whether production shall be ordered, but the right is exercisable at the option of the parties when no privilege can be established : (Bustros v. White, L. Rep. 1 Q. B. Div. 423 ; 34 L. T. Rep. IS. 8. 835 ; 45 L. J. 642, Q. B. ; 24 W. R. 721.) It is not a ground for refusing production that another party is interested in them : {Kettle/well v. Bcurstow, L. Rep. 7 Ch. App. 686.) If the documents are in the joint possession of two persons, one of them cannot be ordered to produce them, but he may be made to set out the contents : {Sadley v. McDougaM, L. Rep. 7 Ch. App. 312.) In actions on marine policies production may be ordered though the documents are not in the party's possession, unless he satisfies the court that he cannot obtain their production: {West of England Bank y. Camion Insv/rance Company, L. Rep. 2 Ex. Div. 472.) A party who is covenantee to a covenant for production of deeds cannot be ordered to obtain production if the covenantor is not a party : {Bethell V. Casson, 1 H. & M. 806.) Where any deeds or other documents are ordered to be left or deposited, whether for safe custody or for the purpose of any inquiry in chambers or otherwise, the same shall be left or deposited in the [Central] Office, and shall be subject to such directions as may be given for the production thereof : (C. O. 42, r. 3 ; J. A. 1879.) The [masters] shall have the care of all documents ordered to be deposited for safe custody, and shall .... perform all ... . duties .... in relation to the custody of exhibits deposited for inspecting and copying ; [an(f] the attendance with records and exhibits on the judges of this court, or at the assizes, or elsewhere : (0. O. 1, r. 35 ; J. A., 1879.) As to depositing documents in the chief clerk's chambers, see Seton, 140. It shall be lawful for the court, or any judge of the division to which any cause or matter pending in the .... High Court is assigned, it it shall be thought fit, to order that any books or documents may be produced .... in the office of ... . any .... district registrar ; and in any such case the district registrar shall proceed to carry aU such directions into effect in the manner prescribed : (J. A., 1873, s. 66.) When the order directs deposit of the documents in the Central Office, they must be left with a schedide of the documents and a copy of the order. If the documents are numerous, or the parcel is large, a box is generally required : (Ayek. 354 ; Dan. 1698.) Inspection of documents deposited at the Central Office is refused to the party depositing, or a plaintiff or defendant, unless suing or defend- ing in person, or introduced by his solicitor : (Dan. 1698.) Inspection under an order in the ordinary form may be had in the absence of the party depositing the documents : [id.) As to the fees for inspection, see Fees. Copies or extracts may be taken without payment of any fee : (Dan. 1698.) If production of documents deposited in court is required upon any examination of witnesses in the Chancery Division, or any office thereof, the master having custody of them, will attend on request, as a memo- randum bespeaking the attendance being left with him, and a payment of his fee : (Id.) If required elsewhere, an order must be obtained on motion or petition Discovery — Disentailing Deed. 289 of course supported by an affidavit of the necessity for production : (Dan. 1699.) The officer may require a deposit of stamps on account of further fees, and a deposit of money on account of any further expenses which may probably become payable beyond the amount paid for fees and expenses on the application; and the officer or his clerk taking feuch deposit shall thereupon make a memorandum thereof on the application : (Order as to Court Fees, Oct. 1875, Sohed. ; and see Fees.) The officer may also require an undertaking in writing to pay any further fees and expenses which may become payable beyond the amounts paid and deposited : {Id.) When the purpose of deposit is satisfied, the person who deposited the documents may obtain an order for their delivery out, on motion or summons with notice, or, by consent, on petition of course : (Dan. 1699.) (6) On Notice at the Trial. [See Evidence.] « YI. AS TO PROPERTY. 1. What Obdees mat be Made. It shall be lawful for the court' or a judge, upon the application of any party to an action, and upon such terms as may seem ]ust, to make any order for the .... inspection of any property, being the subject of such action, and for .... the purpose aforesaid to authorise any person or persons to enter upon or into any land or building in the possession of any party to such action, and for .... the purpose aforesaid to authorise any samples to be taken, or any observation to be made, or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining fuU iiiformation or evidence : (O. LII., r. 3.) Upon a,prvmd facie case of mineral trespass or encroachment by the defendant, and where the fact of the trespass, which is denied, can only be ascertained by inspection, and no injury will result to the defendant there- from, an order wiU be made on an interlocutory application : (Seton, 208.) 2. How Application Made. [The] application .... may be made to the court or a judge by any party. If the application be by the plaintiff .... it may be made after notice to the defendant at any time alter the issue of the writ of summons, and if it be by any other party, then on notice to the plaintiffi, and at any time after appearance by the party making the application : (O. LII., r. 4.) The application should not be ex parte : {Sdbershon v. Gill, W. N. 1875, p. 231.) It may be made on summons : (Cooper v. Inoe Hall Company, W. N. 1876, p. 24) The order is almost a matter of course {Id.) It may be made to extend to the removal of obstructions in the inspection : (Seton, 208.) DISENTAILING DEED. [See Pbotectoe of Settlement.] 290 Dismissing Action — District Registries. DISMISSING ACTION. Besides being liable to have his action dismissed for want of a canse of action or because the evidence to prove its existence is insufficient, a pUiin- tifE may have his action dismissed : For non-delivery of a statement of claim (O. XXIX., r. 1, see Jttdgment) ; For default in delivering reply, when the time for giving notice of trial has elapsed : (see Litton v. Litton, L. Rep. 3 Oh. Div. 793; Judgment.) For failure to comply with an order to give security of costs, see Costs, ■gitp. 207 ; For failure to give discovery or inspection (O. XXXL, r. 20 ; Discovbet) ; For default in giving notice of trial (O. XXXVI., r. 4; Id. I. 4a, June, 1876 ; Judgment) ; for default in appearance at the trial : {O. XXXVI., r. 19 ; Judgment.) An application to dismiss an action for want of pr osecution should generally be made by summons {IVeason v. Loe, 26 W. R. 138) ; but it depends on circumstances whether it may not be properly made by motion : (Evelyn v. Evelyn, L. Rep. 13 Ch. Div. 138 ; 42 L. T. Rep. N. S. 248 ; 49 L.J. 18, Oh.; 28W. R.73.) If the usual notice of motion be given, and the plaintiff does not at once submit to speed the cause and tender the costs of the notice, the defendant if the usual order is made will have his costs of moving in court : [Id.) The form of order dismissing an action for want of prosecution is given in Schedule H. 13, to the Rules of April, 1880. The balance of authority is in favour of the proposition that where an order is made dismissing an action for want of prosecution unless a certain act is done by a certain day, and the time has elapsed without the act having been done, the action is gone, and there is no jurisdiction to make an order extending the time: (Whistler y. Somcock, L. Rep. 3 Q. B. Div. 83; 37 L. T. Rep. N. S. 39; 47 L. J. 152, Q. B. ; 26 W. R. 211; approved by the Oourt of Appeal in Wel^ly v. Buhl, L. Rep. 3 Q. B. Div. 253 ; 37 L. T. Rep. N". S. 640 ; 47 L. J. 151, Q. B. ; 26 W. R. 300 ; Wallis ■v..Sepbum, L. Rep. 3 Q. B. Div. 84, n. ; King v. Davenport, L. Rep. 4 Q. B. Div. 402; 48 L. J. 606, Q. B. ; 27 W. R. 798. But see Burke v. Mootiey, L. Rep. 4 0. P. Div. 226 ; 48 L. J. 601, 0. P. ; 27 W. R. 915.) DISTRICT REGISTRIES. I.' APPOINTMENT OP EEGISTEAES AND THEIE DISTEICTS. n. DEPUTY EEGISTEABS. ni. EEGISTEABS TO BE OPPICEES AND SUBJECT TO JUEISDIC- TION OP COURT. IV. MATTERS TEANSACTED IN EEGISTEIES. 1. Jtjbibdiciion of Eeqisteajbs. 2. Pbocbedinos taken in Eeoistries. (a) Isswimg Writs of Swmmons. (V) Prpceedmgs generally after Iseve of Writ. (c) Enterimg Appea/rwnces [aee Apfeabance]. (d) FroceedAngs gemerally after Appearcmce. (e) Trials to he in Londmi. (/) Judgments. (g) Executions. (h) Taxation of Costs [see Costs, p. 222]. V. WHEN OFFICES OPEN. Vr. HOW APPLICATIONS MADE. District Registries. 291 Vn. EEPEEEING MATTERS TO JtTDGE. Vm. APPEALS EEOM EEGISTEAE. IX. EEMOVnSTG PEOCEEDINGS TO AND FEOM EEGISTEIES [see Transpek.] X. D0CT7MBNTS AND COPIES. XI. COSTS. I. APPOmTMBNT OF REGISTRARS AKD THEIR DISTRICTS. It shall be lawful for Her Majesty, by Order in Council, from time to time to direct that there shall be district registrars iu such places as shall be in such order mentioned for districts to be thereby defined, from which writs of summons for the commencement of actions in the High Court of Justice may be issued, and in which such proceedings may be taJcen and recorded as are mentioned [in the Act], and Her Majesty may thereby appoint that any registrar of any County Court, or any registrar or prothonotary or district prothonotary of any local court whose juris- dic^on is ... . transferred to the .... High Court of Justice, or from which an appeal is ... . given to the .... Court of Appeal, or any person who, having been a district Registrar of the Court of Probate, or of the Admiralty Court, shall under [the Judicature] Act become and be a district registrar of the said High Court of Justice, or who shall here- after be appointed such district registrar, shall and may be a district registrar of the said High Court for the purpose of issuing such writs as aforesaid, and having such proceedings taken before him as ... . men- tioned [in the Judicature Act.] : (J. A. 1873, s. 60.) Where any such Order [in Council] has been made, two persons may, if required, be appointed to perform the duties of .district registrar in any district named in the order, and such persons shall be deemed to be joiat district registrars, and shall perform the said duties in such manner as may from time to time be directed by the said order, or any Order in OouncU amending the same : (J. A. 1875, s. 13.) The registrar of any inferior court of record having jurisdiction in any part of any district defined by such order (other than a County Court) shaE, if appointed by Her Majesty, be qualified to be a district registrar for the said district or for any and such part thereof as may be directed by such order or any order amending the same : {Id.) It has been ordered as follows : That there shaU be district registrars in the places of Liverpool, Man- chester, and Preston, and the district registrar at Liverpool of the High Court of Admiralty, and the district prothonotary at Liverpool of the Court of Common Pleas at Lancaster, shall be and are hereby appointed the district registrars in Liverpool; and the district prothonotary at Manchester of the said Court of Common Pleas shaU be and is hereby appointed the district registrar in Manchester ; and the district prothono- tary at Preston of the said Court of Common Pleas shall be and is hereby appointed the district registrar at Preston ; and that the district for each such place shall be the district now assigned to each such district prothono- tary, under the provisions and authority of " The Common Pleas at Lancaster Amendment Act, 1869." That there shall be a district registrar in Durham, and that the district prothonotary of the Court of Pleas at Durham shall be and is hereby appointed the district registrar in Durham ; and that the district shall be the district, for the time being, of the Comity Court holden at Durham. Tlrnt, in the places mentioned in the schedule annexed, there shall be U 2 292 District Registries. district registrars, and that the registrar of the County Court held in any such place shall be and is hereby appointed the district registrar in such place, and that the district for each such place, shall be the district, for the time being, of the County Court holden at such place. SCHEDtriiE. BaugoT. Bamsley. Barnstaple. Bedford. Birkenhead. Birmingliam. Boston. Bradford. Bridgwater. Brighton. Bristol. Bnry St. Edmunds. Cambridge. Cardiff. Carlisle. Carmarthen. Cheltenham. Chester. Colchester. Derby. Dewsbury. Dover. Dorchester. Dudley. East Stonehonse. Exeter. Gloucester. Great Grimsby. Great Yarmouth. Halifax. Hanley. Hartlepool. Hereford. Huddersfield. Ipswich. Eingston-on-Hull. King's Lynn. Leeds. Leicester. Lincoln. Lowestoft. Maidstone. Newcastle-upon-Tyne. Newport, Monmosth. Newport, Isle of Wight. Newtown. Northampton. Norwich. Nottingham. Oxford. Pembroke Docks. Peterborough. Poole. Portsmouth. Bamsgate. Bochester. ShefBeld. Shrewsbury. Southampton. Stockton-on-Tees. Sunderland. Swansea. Totnea. Truro. Wakefield. WalsaU. Whitehaven. Wolverhampton. Worcester. York. (Order in Council of 12th Aug. 1875.) II. DEPUTY REGISTRARS. A district registrar of the Superior Court of Judicature may .... appoint a deputy [for a limited time], and all acts authorised or required to be done by, to, or before a district registrar may be done by, to, or before any deputy so appointed : (39 & 40 v ict. c. 59, s. 22.) III. REGISTRARS TO BE OFFICERS, AND SUBJECT TO JURISDICTION OF COURT. Every district registrar shall be deemed to be an officer of the Supreme Court, and be subject accordingly to the jurisdiction of such court, and of the divisions thereof : (J. A., 1875, s. 13.) Every district registrar and other officer of a district registry shall be subject to the orders and directions of the court or a judge as fmly as any other officer of the court, and every proceeding in a district registry shaU be subject to the control of the court or a judge, as fuUy as a like proceed- ing in London : (O. XXXY., r. 9.) rv. MATTERS TRANSACTED IN REGISTRIES' 1. JUEISDICTION OF RegISTEAKS. All such district registrars shall have power to administer oaths and perform such other duties in respect of any proceedings pending in the said High Court of Justice or in the said Court of Appeal as may be assigned to them from time to time by Rules of Court, or by any special order of the court : (J. A., 1873, s. 62.) Where an action proceeds in a district registry the district registrar may exercise all such authority and jurisdiction in respect of the action as may be exercised by a judge at chambers, except such as by [the] rules a District Registries. 293 master of the Queen's Bench, Common Pleas, or Exchequer Dmsions is precluded from exercising (O. XXXV., r. 4) ; that is to say, .... all such business and . . . . aU such authority and jurisdiction in respect of the same as under the Act .... or [the] rules, may be transacted or exercised by a judge at chambers, except in respect of the following pro- ceedings and matters ; that is to say, — All matters relating to criminal proceedings or to the liberty of the subject : The removal of actions from one division or judge to another division or judge : The settlement of issues, except by consent : . . . . Inspection [of any property being the subject of an action] : Appeals from district registrars : Interpleader [where all parties concerned consent to a final determination of the question in dispute without a jury or special case, or where the sum in dispute is less than 502., and one of the parties desires such a determination (unless in either of such cases the parties agree to refer it to the registrar :)] Prohibitions : Injunctions and other orders under sub-sect. 8 of sect. 25 of the Act, or under O. LII., rr. 1, 2, 3, respectively: [See Mandamits; PbOPBBTT; EiECBIVEE.] Awarding of costs, other than the costs of any proceeding before such [registrar] : Reviewing taxation of costs : Charging orders [absolute] on stock funds, annuities, or share of dividends or annual produce thereof ; Acknowledgments of married women. [Granting leave for service out of the jurisdiction of a writ of summons, or of notice of a writ of summons] : (O. LIV., r. 2, as altered by O. LIV., r. 2a, Nov., 1878.) District registrars cannot appoint receivers, or take accounts directed by the judge unless specially directed by the judgment : {Be Smith, L. Rep. 6 Ch. Div. 692.) According to Malins, V.C., and Hall, Y.C., it is improper for the registrars to open banking accounts, and direct money to be paid into them : {Id. ; Fvnlay v. Davis, L. Rep. 11 Ch. Div. 735.) The Master of the RoUs, however, has approved of this course, and the Commissioners of the Treasury have approved of it : {Id.) It shall be lawful for the court, or any judge of the division to which any cause or matter pending in the said High Court is assigned, if it shall be thought fit, to order that any books or documents may be produced, or any accounts taken or inquiries made, in the office of or by any such district registrar as aforesaid ; and in any such case the district registrar shall proceed to carry all such directions into effect in the manner prescribed ; and in any case in which any such accounts or inquiries shall have been directed to be taken or made by any district registrar, the report in writing of such district registrar as to the result of such accounts or inquiries may be acted upon oy the court, as to the court shall seem fit : (J. A, 1873, s. 66.) As to taking accounts, see Accotjnt, VIII. Where an action had been removed to London, on the defendant's default the Court refused to direct accounts and inquiries to be taken in the registry, as needless expense would be thereby incurred : { Walker v. BohiMson, 24 W. R. 427.) It is in the discretion of a judge, with which the Court of Appeal will 294 District Registries. not interfere, whether he will order a sale to take place in a district rerist^ : {McDonald t. Foster, L. Rep. 6 Oh. Div. 193 ; 25 W. B. 602, 687.) Unless there are special circmnstances making it desirable. Hall, V.O., wUl not direct a sale in the registry, but it is the usual practice of the Master of the BoUs to do so : {Id.) As to inquiries and sale in a partition action, see Sylees y. Schqfield, L. Bep. 14 Oh. Div. 629; 42 L. T. Eep. N. S. 629. 2. Pkocbedings taken in Begisteies. {a) Issuing Writs of Summons. Subject to the Eules of Oourt in force for the time being, writs of summons for the commencement of actions in the High Courts of Justice shall be issued by the district registrar when thereunto required : (J. A., 1873, s. 64.) In any action other than a probate action, the plaintifE wherever resident may issue a writ of summons out of the registry of any district : (0. V., r. 1 ; and see Wbit of Summons.) Special forms of writs issued out of registries are given in the schedule to the Rules of April, 1880. (6) Proceedings generally after Issue of Writ. Unless any order to the contrary shall be made by the High Court of Justice, or by any judge thereof, all such further proceedings [after, the writ is issued] .... as may and ought to be taken by the respective parties to such action in the said High Court down to and including entry for trial, or (if the plaintiff is entitled to sign final judgment or to obtain an order for an account by reason of the non-appearance of the defendant) down to and including final judgment, or an order for an account, may be taken before the district registrar and recorded in the district registry, in such manner as may be prescribed by Bules of Oourt ; and all such other proceedings in any such action as may be prescribed by Rules of Court shall be taken and if necessary may be recorded in the same district remstry : (J. A., 1873, s. 64.) When an action proceeds in the district re^stry all proceedings, except where by any of the Bules of the Supreme Court it is otherwise provided, or the court or a judge shall otherwise order, shall be taken in the district registry, down to and including final judgment : (O. XXXV., r. la., June 1876.) (c) Entering Appearances. [See Appeaeancb.] (d) Proceedings generally after Appearance. If a sole defendant appears, or all the defendants appear in the district registry, or if all the defendants who appear appear in the district registry and the. others maie default in appearance, then, subject to the power of removal hereinafter provided, the action shall proceed in the district registry : (0. XII., r. 4.) If the defendant appears, or any of the defendants appear, in London the action shall proceed in London ; provided that if the court or a judge shall be satisfied that the defendai^t appearing in London is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such court or judge may order that the action may proceed in the district registry, notwithstanding such appearance in London : ■ (0. XII., r. 5.) (e) Trials to he in London. Actions commenced in district registries must be tried in London before the judge of the Chancery Division to whom they are assigned : {Be Smith, L. Eep. 6 Oh. Div. 692.) Where defendant made default in pleading, Bacon, V.O. ordered the District Registries. 295 action to be removed to London that it might be set down in his paper on motion for judgment: {Walker y. Robinson, 24 "W". R. 137.) Where an action proceeds in a district registry and is set down there for hearing in London, the documents in the action at the registry wUl be sent up to London for the hearing without any order being obtained for that purpose : {Lumh v. Whiteley, W. N. 1877, p. 40.) (/) Judgments. [See sv/p. (6.)] As to entering judgment, see O. XXXv., r. la., 'June, 1876; r. 2; Jttdgment. An office copy of every judgment and order .... entered in London shall be transmitted to the district registry to be filed with the proceed- ings in the action : (O. XXXV., r. 2.) (g) Execution. Where an action proceedtls in the district registry all writs of execution for enforcing any judgment or order therein shaU issue from the district registry, unless the court or a judge shall otherwise direct : (O. XXXV., r. 3 ; and see Exectttion.) Where an action proceeds in a district registry, all proceedings rekting to the following matters, namely : — (a) Leave to issue or renew writs of execution ; (6) Examination of judgment debtors for garnishee purposes ; (c) Garnishee orders ; (d) Charging orders ni^i ; shall, unless the court or a judge otherwise order, be taJs:en in the district registry : (O. XXXV., r. 3a, April, 1880.) (h) Taxation of Costs. [See Costs, sitp., p. 222.] V. WHEN OFFICES OPEN. . The offices of each district registrar of the High Court of Justice shall be open on every day and hour of the year on which the offices of the registrars of the County Court of the place in which the district registry is situate are required to be kept open ; (O. LXI., r. 4b, Dec, 1875.) The office of the district registry at Manchester shall not be open in any year on the five days next following Whit Monday : (O. LXI., r. 4d, May, 1880.) VI. HOW APPLICATIONS MADE. Every application to a district registrar shaU be made in the same manner in which applications at chambers are directed to be made by these rules : (O. XXXV., r. 5.) That is " in a summary way by summons " ■- (O. LIV., r. 1. Rules 10-14 of the same order do not apply to district registries : 0. XXXV., r. 16, May, 1880.) Vn. REFERRING MATTERS TO JUDGE. If any matter appears to the direct registrar j)roper for the decision of a judge, the registrar may refer the same to a judge, and the judge may either dispose of the matter or refer the same back to the registrar with such directions as he may think fit : (O. XXXV., r. 6.) A district registrar cannot refer to a judge unless a summons has been taken out calling on the other side to appear before the registrar : (per Quain, J., W. N., 1875, p. 250.) Every reference to a judge by .... a district registrar in any action in the Chancery Division shall be to the judge to whom the action is assigned : (0. XXXV., r. 10.) 296 District Begistries — Documents. Vni. APPEAL FROM REGISTRAB. [See Appeax, II.] IX. REMOTING PROCEEDINGS TO AND PROM REGISTRIES. [See Teansfee.] X. DOCUMENTS AND COPIES. In every such district registry such seal shall be used, as the Lord Chancellor shall from time to time, either before or after the time fixed for the commencement of this Act, direct, which seal shall be impressed on every writ and other document issued out of, or filed in such district registry, and all such writs and documents, and all exemplifications and copies thereof, purporting to be sealed with the seal of any such district registry, shall in all parts of the United Kingdom be received in evidence without further proof thereof : (J. A., 1873, s. 61.) When ii cause in the Chancery Division is proceeding in a district registry, all certificates of the chief clerk and taxing masters, and all affidavits and other documents (required to be filed) used in London before the judge in Chambers, or before any taxing master or referee of the court, and not already filed in the district registry, shall be filed in the same office as they would have been filed in if the proceedings had originally commenced in London, and if the court or judge shall so direct, office copies thereof shall be transmitted to the district registry : (O. XIX., r. 29a. March, 1879.) So much of O. XXXYII., r. 3d [Evidence] as requires affidavits to be filed in the Central Office shall not apply to affidavits required to be filed in a District Registry : (O. XXXY., r. 16, May, 1880.) XI. COSTS. When a writ of summons for the commencement of an action shall be issued from a district, and when an action proceeds in a district registry, all fees and allowances, and rules gnd directions relating to costs, which would be applicable to such proceeding if the writ of summons were issued in London, and if the action proceeded in London, shall apply to such writ of summons issued from and other proceedings in the district registry : (Add. R. Aug. 1875 ; Sp. All., r. 84 ; and see Costs.) DISTRINGAS. On Stock [see Charging Oedek]. Ntjpee Vice-comitem [see Execution]. DIVISIONAL COURTS. Divisional courts may be held for the transaction of any part of the business assigned to the said Chancery Division, which the judge, to whom such business is assigned, with the concurrence of the president of the same division, deems proper to be heard by a divisional court : (J. A.. 1873,8.43.) ^ DOCUMENTS. [See Admissions; Discoveey; Evidence.] Ecclesiastical Estates. 297 ECCLESIASTICAL ESTATES. I. PAYMENT INTO COURT OF PURCHASE-MONET OP LEASE. n. PETITION FOR PURCHASING REVERSION. in. PETITION FOR RAISING MONET TO PURCHASE REVERSION, rv. PETITION FOR SALE OF LEASE. I. PAYMENT INTO COURT OF PURCHASE MONET OF LEASE. In every case in which, under any contract by the Ecclesiastical Commissioners or any [ecclesiastical] corporation with any lessee or grantee holding land und6r [them] by any lease for lives or years, or copyhold or customary grant, for the purchase or receiving in exchange or partition by the Ecclesiastical Commissioners, or such corporation, of any land comprised in such lease or grant, any sum of money is agreed to be paid by the said Ecclesiastical Commissioners or such corporation, [and] the lessee or grantee [fail] or declare himseM unable to mate a marketable title to or any efEectual assurance of such land .... such sum of money may, with the consent of such lessee or grantee, be paid into the Bank of England with the privity of the [Paymaster-General] to an account in the matter of " An Act further to Amend the Acts relating to the Ecclesiastical Commissioners and the Act concerning the Management of Episcopal and Capitular Estates in England," to the credit of the parties interested in such land ; and be disposed of in like manner as is directed by the Land Clauses Consolidation Act, 1845, with respect to purchase moneys in the case of parties neglecting jar failing to make out satisfactory titles : (23 & 24 Yict. c. 124, s. 29 ; and see Lands Claitses Act; Payment into and out of Court.) The Act applies to the estates of corporations both aggregate and sole : (Sayward v. Pile, L. Rep. 5 Ch. App. 214.) n. PETITION FOR PUOHASING REYERSION. Wherever the estate and interest under any such lease or grant may be vested in any trustee or trustees, either expressly or by implication of law and any moneys, stocks, funds, or securities for money are vested in the same trustees or trustee, upon the same or like trusts .... such •trustees or trustee [may] if there shall be no person capable of giving consent, or if such consent [of the beneficiaries] shall be withheld, and ihe trustee or trustees .... consider such a course essential to the interest of tlie parties entitled under the settlement .... with the sanction and approbation of the [Chancery Division] to be obtained on petition .... raise out of such moneys, or by sale of such stocks [&c.], a sufficient sum for the purpose of purchasing the reversion of, or other- wise enfranchising the property comprised in such loan or grant : (23 & 24 Vict. c. 124, s. 36.) III. PETITION FOR RAISING MONET TO PURCHASE REVERSION. When any such lease or grant [is] vested in any person or persons as A trustee or trustees, whether expressly or by implication of law, and other lands, whether freehold, copyhold, or leasehold, are vested in the same trustees or trustee upon the same or like trusts, or are settled to the same uses or purposes, or as near thereto as the different tenures of the land admit, and when any person is under any will or settlement in the -actual possession or receipt of the rents and profits of the lands comprised 298 Ecclesiastical Estates — Enrolment of Deeds. in such lease or grant, and of other lands settled, to like trasts or nses as aforesaid .... snch trustees or trustee, or such person as aforesaid [may] with the sanction and approbation of the fOniancery Division] to be obtained on petition .... raise money, either by sale or mortgage, of all or any part of the property comprised in the lease or grant, and the other lands .... vested .... as aforesaid, as the .... court shall direct, for the purpose of purchasing the reversion of, or otherwise enfranchising the property comprised in, snch lease or grant, in snch manner and subject to such provisions for protecting or adjusting the equities arising under such purchase or enfranchisement, and such mort- gage or sale as aforesaid, as the court [thinks] fit : {Id., s. 37 ; and see Be Adams, 17 W. R. 582.) As to when the court will sanction purchase of the reversion: (see Haywwd v. Pile (sup.) ; Be Wood's Estate (L. Rep. 10 Eq. 572 ; Hollier V. Burne, L. Rep. 16 Eq. 163 ; Maddy v. Hale, L. Rep. 3 Oh. Div. 327 ; Seton, 1277-8.) IV. PETITION FOR SALE OF LEASE. In any case in which the estate and interest under any lease or grant made by any ecclesiastical corporation [is] vested in any trustee or trustees, [who] have not power to sell, [they may] with the consent in writing^ of the person or persons entitled for the time being to the beneficial receipt of the rent or annual proceeds thereof, if such person or persons [is] capable of giving consent, or if there [is] no person capable of giving consent, or if such consent [is] withheld, and the trustee or trustees .... consider a sale essential to the interests of parties entitled under the settlement, then, with the sanction and approbation of the [Chancery Division], to be obtained on petition .... sell and dispose of all or any part of such property: (23 & 24 Yiet. c. 124, s. 38.) The purchase money must be paid to the trustees, whose receipt is a sufficient discharge : (Id.) The money so paid to such trustee or trustees shall be invested by hitn or them and such investment may, with the sanction and approbation of the court .... be made in the purchase of other leasehold estates, whether held under any ecclesiasticsl corporation or not : (Jd.) If the person entitled to the rents is of unsound mind, not so found, the petition must be intituled in the Ohancery Division only, and not in Lunacy : {Be Cheshire, L. Rep. 7 Oh. App. 60.) ELEGIT. [See Execution.] ENROLMENT OF DEEDS. [See Oenteai Oppice; Chaeities.] Eqmtdble Rules. 29& EQUITABLE RULES. I. CONFLICT BETWEEN RULES OF EQUITY AND OF COMMON LAW. n. CONCUEEENT ADMINISTRATION OF LAW AND BQUITT. I. CONFLICT BETWEEN RULES OF EQUITY AND COMMON LAW. Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail : (J. A., 1873, s. 25, snb-s. 11.) The " matters hereinbefore particularly mentioned " are administration of assets of insolvent estates and winding-up of companies (J. A., 1875, s. 10) ; statutes of limitation with reference to express trusts (J. A., 1873, s. 25, sub-sect. 2) ; equitable waste {Id. sub-s. 3); Merger {Id. sub-sect. 4) ; suits by mortgagors for possession of land {Id. sub-sect. 5, see inf.) ; assignment of debts and ehoses in action {Id. sub-sect. 6, see Assignment of Debts, Tkustee) ; stipulations not of the essence of contract {Id. sub-sect. 7) ; mandaniMs, injunctions, and receivers {Id. sub-sect. 8, see Injunction, Mandamus, Receiver); damages by collisions at sea {Id. sub-sect. 9) ; infants {Id. sub-sect. 10, see Infants); with respect to which subjects there are special enactments amending the former law. A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his in- tention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover dimiages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person: (J. A., 1873, s. 25, sub-sect. 6.) Save as by the principal Act or this Act, or by any Rules of Court, may be otherwise provided, all forms and methods of procedure which at the commencement of this Act were in force in any of the courts whose jurisdiction is by the principal Act or this Act transferred to the said High Court and to the said Court of Appeal respectively, under or by virtue of any law, custom, general order, or rules whatsoever, and which are not inconsistent with the principal Act or this Act, or with any Rules of Court, may continue to be used and practised, in the said High Court of Justice and the said Court of Appeal respectively, in such and the like cases, and for such and the like purposes, as those to which they would have been applicable in the respective courts of which the jurisdiction is so transferred, if the principal Act and this Act had not passed : (J. A., 1875, 8. 21.) Where no rule of practice is laid down by the Judicature Acts or Rules and there is a variance in the old practice of the Chancery and Common, Law Courts, that practice is to prevail which is considered by the court most convenient : {Newbiggvn-by-the-8ea Gas Compa/ny v. Armstrong, L. Rep. 13 Ch. Div. 310; 41 L. T. Rep. N. S. 637; 49 L. J. 231, Ch. ; 28 W. R. 217; apparently overruling, on this point, Grant v. Holland, L. Rep. 3 C. P. Div. 180 ; 47 L. J. 518, C. P. ; 26 W. R. 742.) 300 Equitable Rules. II. CONCURRENT ADMINISTRATION OP LAW AND EQUITY. In every civil cause or matter commenced in the High Court of Justice law and equity shall be administered by the High Court of Justice and the Court of Appeal respectively, according to the rules f oUomng : (1.) If any plaintifE or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a court of equity, the said courts respectively, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or pro- ceeding for the same or the like purpose properly instituted before the passing of this Act. [Where to a claim against a married woman for goods sold and delivered, the defendant pleads coverture, the plaintiff may reply that she has separate estate, and is thus entitled to the same remedy as he would have had in a suit commenced to charge her separate estate: (Hancock v. Be Niceville, W. N. 1875, p. 230.).] (2.) If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the said courts respectively, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence in any suit or pro- ceeding instituted in that court for the same or the like purpose before the passing of this Act. [In an action by a mortgagee for recovery of land and for debt, the mortgagor may plead his right to redeem: (Haribv/ni v. Noone, W. N. 1875, p. 260.)] As to setting up equities in other divisions than the Chancery Division, see Mostyn v. West Mostyn Coal Company, L. Rep. I C. P. Div. 145. Upon a proper case for opening signed accounts made by a mortgagor by his defence and evidence in a foreclosure suit in issue before the 2nd Nov. 1875, the court entertained the equitable defence as if a cross bill or a counter-claim had been filed : [Uyre v. Hughes, L. Rep. 2 Ch. Div. (3.) The said courts respectively, and every judge thereof, shall also have power to grant to any defendant in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him, all such relief against any plaintiff or petitioner aa such defendant shall ha,ve properly claimed by his pleading, and as the said courts respectively, or any judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner ; and also aU such relief relating to or connected with the original subject of the cause or matter, and Bqidtable Rules. 301 in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of court or any order of the court, as might properly have been granted against such person if he had been made a defen- dant to a cause duly instituted by the same defendant for the like purpose ; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim, as if he had been duly sued in the ordinary way by such defendant. [See Pleading.] (4) The said courts respectively, and every judge thereof, shall recognise and take notice of aE equitable estates, titles, and rights, and all equitable duties and liabilites appearing in- cidentally in the course of any cause or matter, in the same manner in which the Court of Chancery would have recognised and taken notice of the same in any suit or proceeding duly instituted therein before the passing of this Act. (5.) No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction ; but every matter of equity on which an injunction against the prosecution of any such cause or pro- ceeding might have been obtained, if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto : Provided always, that nothing in this Act contained shall disable either of the said courts from.- directing a stay of proceedings in any cause or matter pending before it if it shall think fit; and any person, whether a party or not to any such cause or matter, who womd have been entitled, if this Act had not passed, to apply to any court to restrain the prosecu- tion thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said courts respectively, by motion in a summary way, for a stay of pro- ceedings in such cause or matter, either generally, or so far as may- be necessary for the purposes of justice ; and the court shall thereupon make such order as shall be just. [See Administeation, Injunction, Stating Peoceedings, Winding-up.] (6.) Subject to the aforesaid provisions for giving efBect to equitable , rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the said courts respectively, and every judge thereof, shall recognise and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom, or created by any statute, in the same manner as the same would have been recognised and given effect to if this Act had not passed by any of the courts whose jurisdiction is hereby transferred to the said High Court of Justice. (7.) The High Court of Justice and the Court of Appeal respectively, in tlie exercise of the jurisdiction vested in them by this Act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all 302 JEqwitahle Rules — Evidence. such remedies whatsoever as any of tke parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter ; so that, as far as possible, all matters so in controversy between the said parties respectively may be com- pletely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided : (J. A., 1873,8.24.) One of the main objects of the Judicature Act was to enable the conrt to decide, if possible, in one proceeding, all the questions in dispute between the same parties relating to the same matters : (Per Jessel, M.B. Hedley v. Bates, L. Rep. 13 Oh. Div. 498; 42 L. T. Rep. N. S. 41; 28 W. R. 365.) EQUITY TO SETTLEMENT. [See Mareied Womabt.] EVIDENCE. I. FOEMEE ETJLES UNAFFECTED. n. TTVl VOCE EVIDENCE. 1. At Teiai. ob Assessmbnt of Damages. 2. At ant time by Obdeb. (a) General Powers. (b) Exa/mination De Bene Esse. (1) Where allowed. (2) When and How AppUoation made. (3) How Attendance of Witnesses proenred [aeepost, 5]. (4) How Examination conducted [see post, 3]. (5) Order to read Depositions. (c) Special Examiners abroad. ((J) Comrmssions. (1) To India and the ColonieSi (2) To other Places. (8) In what Cases granted. (4) When AppUoation made. (5) How application made. • (6) Evidence. (7) Forms of Orders. (8) Prseoipe for Writ. (9) Date and Teste of Commission. (10) Form of Commission. (11) DisaUovring Questions. (12) Proceedings before Commissioners. (13) Compelling Attendance of Witnesses [see post, 5]. 3. Befoee Examinee bt Consent. (a) How Consent gimen. (b) Appointment for Exammation. (c) Suipcenas. (d) Order to Attend. (e) How Exa/mmation cond/ucted. (J) Signing Depositions. (g) FiUng Depositions. {h) Printing Depositions [see post, 6 (b)] (i) Costs. Evidence. 303 4. Cboss-Examination out of Coubt. (a) On Affidavits [see post, III., 15]. (6) On Account [see Account]. 5. CoMPELLiNe Attendance of Witnesses. (a) Ji the Trial. (6) Before jBxa/nwners. (c) At OhdmberS. (d) On Gomndssions. (1) Abroad. (2) In Scotland or Ireland. (3) In England. (4) When Witness in Prison. (e) Subpoenas. (1) Generally. (2) For whole of United Kingdom. (3) Penalties for Disobeying. (/) Where Witness in Prison. 6. Depositions. (a) FilMig [see sup., 2 (a) ; 2 (c) ; 2 (d), (7) and (9) ; 8 (9)]. (6) Printing, (c) Copies. (d) Production of Office Copies. (e) AdrmssibiUty of Depositions. (1) Where taken on Commission. (2) Where taken before Examiner or Other Person, t. How Witnesses abe Swoen and Gite Evidence. (a) Swea/ring and Affi/rmAng. (b) Exam/mation in Chief, (c) Oross-Bxwnvmation. (d) Be-Exarmnation. (e) Recalling Witnesses, (/) Rebutting Evidence. Ig) Examination in Case of Oownter-cloAm. m. AFFIDAVIT EVIDENCE. 1. At the TkxaIj. (a) By Consent. (b) Without Consent. (c) By Order. 2. On IntebiiOcutobt Pboceedings. 3. On Fuethee Consideeation. 4. On Application to Sign Judoment on specially Indobbed Wbit. 5. Peepaeation of Affidavits. (a) When Belief moA/ be stated. (b) To show Meams of Knowledge, (c) To be in First Person. (d) Deponent's Addition, (e) Paragraphs, (/) Dates. (g) Quotations. {h) Mow Written or Printed, (i) InterlmieaUons and Erasures, (k) Jwrat. (I) Schedmles, (rft) Exhibits, 6. sweaeino. 7. Filing-. 8. Notice of Filing. 9. TTsiNa Obiginaii Affidavits. 304 l-.vidence. 10. Takinq off File and ExpuNaiucj. 11. Deliveeing Lists. (a) Plaintiffs' Affidavits in chief. (6) Defenda/nts' Affidamts. (c) Plwi/ntiffs' Affidamts in reply. 12. Peintino. 13. Ofeice Copies. 14. FtTBNisHiNa Copies [see Copies.] 15. Ceoss-esamination on Affidavits. (a) On Notice at Trial. (b) By Order. (c) By Consent before Examiner [see sup., II., 3 (o) ] IV. DOCtrMENTAET EVIDENCE. 1. Admitting Documents. 2. Pbobate of Will. 3. Public Documents. 4. Acts of Pabliament. 5. Decrees and Obdebs. 6. peoceedinas in othee causes. 7. Documents Deposited in Court. 8. Eegoeds in Centeal Office. 9. Exhibits at the Hearing. 10. Notice to Peoducb. 11. Dispensing with Attesting Witness. V. m HOUSE OP LOEDS [see Appeal.] VT. nsr COUET OF APPEAL [see Appeal.] VII. IN CHAMBERS [see Chambees.] Vm. ON TAXATION. IX. ON EEVIEWING TAXATION. X. BEFOEE EEPEEEE. XI. BEFOEE AEBITEATOE. Xn. ACTION TO PEEPETUATE TESTIMONT. 1. Whebe it Lies. 2. Affidavit on Sealing Weit. 3. How Action Peoceeds. 4. Examination of Witnesses. 5. When Action Ends. 6. Filing Evidence. 7. Ordee to Ebad Evidence. XtH. EXAMINING WITNESSES IN AID OF TEIBUNALS ABEOAD. 1. Foreign Courts. 2. Courts in Queen's Dominions. I. FORMER RULES UNAiTEOTED. Nothing in this Act or in the first schedule hereto, or in any mles of court to he made under this Act, save as far as relates to the power of the court for special reasons to allow depositions or ^davits to be read, shall affect the mode of giving evidence by the oral examination of witnesses in trials by jury, or the rules of evidence, or the law relating to iurvmen or juries : (J. A., 1875, s. 20.) II. rirl VOCE EYTDEBTCE. 1. At Teiai oe Assessment of Damages. In the absence of any agreement between the parties, and subject to these rules, the witnesses at the trial of any action or at any assessment of damages, shall be examined mm ©oceand in open court: (O.XXXVn.,r. 1.) Evidence. 305 2. At AifY Time by Oedee. (a) General Power. The court or a judge may, in cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before any officer of the court, or any other person or persons, and at any place, of any witness or person, and may order any deposition so taken to be filed in the court, and may empower any party to any such cause or matter to g^ve such deposition in evidence therein on such terms, if any, as the court or a judge may direct : (O. XXXVII., r. 4.) The form of order is given in Schedule H. 34, to the Rules of AprU, 1880. In a summons under the Vendors and Purchasers Act, 1874, the evidence of a witness who refused to make an affidavit was ordered to be taken before an examiner : {Be Spririgall and Goldsack's Contract, W. N. 1875, p. 225.) The court or a judge may at any time, for sufficient reason order .... that any witness whose attendance in court ought for some sufficient cause to be dispensed withj be examined by interrogatories or otherwise before a commissioner or examiner : (O. XXXVII., r. 1.) The court, or the judge in chambers, may direct that the oral examina- tion and cross-examination of any witness (whether a party or not) .... shall be taken before an examiner of the court or a special examiner, in the manner prescribed by the stat. 15 & 16 Vict. c. 86, in case it shall appear to the judge that, owing to the age, infirmity, or absence out of the jurisdiction of such witness or person, or for any other cause which to the judge shall appear sufficient, it is expedient that such direction should be given. Such direction may be obtained on application to the court or the judge in chambers, on notice : (Ch. Order, 5th Feb. 1861, r. 11.) In the case of the examination or cross-examination, under the last preceding rule, of any person in England or Wales, the party requiring such examination or cross-examination may apply to the court or the judge in chambers for an order that one of the examiners of the court may attend, for the purpose of such examination or cross-examination, at any place or places in England or Wales to be named in such order : Id., r. 12.) The expenses of the examiner shall be paid to him by the party obtaining such order; and, subject to any direction of the court, or of the judge in chambers to the contrary, shall be costs in the cause : {Id., r. 13. The rule applies both to examiners of the court and special examiners : {Palmer v. Moore, W. N. 1875, p. 125.) Any fit person may be appointed a special examiner, but a barrister or solicitor is generally appointed : (Dan. 801.) The application for his appointment is by motion on notice or summons, supported by an affidavit of ms fitness, and that he has no adverse interest : When the judge in chambers directs the examination of a witness before the examiner, the latter may require a note to that efEect, signed by the chief clerk, as his authority : (Dan. 1061.) (6) Examination De Bene JEsse, (1) When allowed. The court will permit depositions to be taken before the cause is at' issue, of important witnesses whose testimony is in danger of being lost from death, by reason of old age or dangerous iUness ; because they are about to go abroad ; or because the death of one witness would destroy X 306 Evidence. the only evidence of a fact, though he is neither old, iU, nor going abroad : (Dam. 814-6.) (2) When and How Application made. The application may be made any time after the writ is issued, by any party : (Dan. 817.) If the gronnd is that the witness is over seventy years of age, or dangerously Ul, or going abroad, the application is by motion ex parte, or motion or petition of course : (Id.) This order vaoBt be served on the other side : (Dan. 818.) In other cases the application is by motion on notice, or summons. An affidavit is always required in support as to the facts forining the ground of application, the age of the witness, and that he is a material witness : (Dan. 818.) When the ground is that the witness is the only witness, the affidavit must show the particular points to which the evidence is to apply, and the ground for believing that he is the only person : (Jd.) (3) How Attendance of Witnesses procured. [See post, 5.] (4) How Examination Conducted. [See post, 3.] (5) Order to Read Depositions. An order is necessary before the depositions can be used as evidence : (Dan. 819; O. XXXVH., r. 4; see svp. {a).) The order may be obtained on motion with notice, or summons : (see o. xxxvn., r. 4.) Evidence of death, or absence abroad is generally necessary : (Dan. 819, et seq.) As to when the order will be made and its form, see Moggridge v. Hall (L. Rep. 13 Ch. Div. 380). (c) Special Hxanmner Abroad. The Court of Chancery, although it had power to issue a commission to examine witnesses abroad, generally appointed a special examiner for the purpose : (Dan. 812.) The Chancery Division may still adopt either course : (see sv,p. {a).) For a form of order for special examiner, see London Bank of Mexico V. Hart (L. Rep. 6 Eq. 467 ; 18 L. T. Rep. N". S. 553). But such a form is not always necessary : [Bcmque Franco-Hgyptienne V. Lutscher, 41 L. T. Rep. N. S. 468 ; 28 W. R. 133.) ■ In the case last cited a commission was granted. The power of the courts abroad may be called in as in the case of commissions: {Campbell y. Attorney-General, L. Rep. 2 Ch. App. 671; see post, 5.) If the depositions are taken in a foreign language, they must be trans- lated either before they are filed, or at the central office afterwards: (Dan. 813.) The order for a translation may be obtained on motion or petition of course: (Id.) The translation must be sworu to and annexed to the deposition, and am office copy of it may be read at the hearing, saving aU just exceptions, when, as is usually the case, the order so directs : {Id.) The costs of a special examiner are taxed in England, on the scale allowed in the country where the evidence was taten : (Dan. 814.) The costs of a solicitor here of attending the examination abroad were not allowed in Chancery : {Id.) Evidence. 307 {d) Com/missions. (1.) To India and the Colonies. Whenever any person commences any action in the High Court of Justice, for which cause has arisen in India, the High Court may, on motion, award a writ in the nature of a mandamus or commission to the chief justice and judges of the High Court of Judicature at Fort William, Madras, or Bombay, for the examination of witnesses : (13 Geo. 3, c. 63, s. 44; Taylor on Evidence, 7th edit., 443, 441 n.) The above provision has been extended to all colonies, islands, plantations, and places under the dominion of Her Majesty in foreign parts, and to the judges of the several courts therein, and to all actions depending in the High Court of Justice, in what place or country soever the cause of action may have arisen, whether within the jurisdiction of the court to the judges whereof the writ or commission may be directed, or elsewhere, when it shall appear that the examiuation of witnesses, under a writ or commission issued iii pursuance of the authority given will be necessary or conducive to the due administration of justice in the matter wherein such writ shall be applied for : (1 Will. 4, c. 22, s. 1.) (2) To other Places. [Any division of the High Court of Justice, or any judge of any such division, may] in every action depending in such court, upon the applica- tion of any of the parties to such suit .... order the examination on oath, upon interrogatories or otherwise, before the master or prothonotary of the said court, or other person or persons to be named in such order, of any witnesses within the jurisdiction of the court where the action may be depending, or - . . . order a commission to issue for the examination of witnesses on oath at any place or places out of such jurisdiction, by in- terrogatories or otherwise, and by the same or any subsequent order or orders .... give aU such directions touching time, place, and manner of such examination, as well within the jurisdiction of the court wherein the action shall be depending as without, and all other matters and circum- stances connected with such examinations as may appear reasonable and just : (1 WiU. 4, c. 22, s. 4.) Interpleader is not an action within the meaning of this Act : {Be Mersey Bock Boa/rd, 11 W. R. 283.) (3) In what cases granted. It [was] not .... necessary to sue out any commission for the examination of any witnesses within the jurisdiction of the .... Court fof Chancery] ; and any examiner appointed by any order of the court had] the like power of administering oaths as commissioners [had] under commissions issued by the court for the examiuation of witnesses : (15 & 16 Vict. c. 86, s. 35.) It is iu the discretion of the court whether a commission to examine witnesses abroad shall be ordered : (Per Malins, V.C. ; Be Imperial Land Company of Marseilles, W. ST. 1877, p. 236 ; 37 L. T. Rep. N. S. 588.) Where the Court of Appeal was of opinion that the application was made bond fide, and that the applicants were able and willing to bear the expense of the commission, a commission was ordered, notwithstanding the judge below had refused it : {Be Imperial Land Company of Ma/rseilles, W. N. 1877, p. 244 ; 37 L. T. Rep. N. S. 588.) An order for examination, either viva voce or by interrogatories, will be made when a material witness is, from ill health, unlikely to be able to attend at the trial safely : {Davies v. Lowndes, 6 Scott, 738 ; Pond v. Dimes, 2 Dowl. 730.) The sickness need not be incurable, bat only so far permanent as to be X 2 308 Evidence. likely to last beyond the trial, and the decision of the judge is liable to review on appeal : (Duke of Beaufort v. Grawehay, H. & B. 638.) The order may be made whether the witness is in Scotland or Ireland {Waimoright v. Bland, 3 Dowl. 653) ; in a colony [Farmworth t. Hyde, 14 C. B. N. S. 719) ; or out of the Queen's dominions (Duchett v. Williams, 1 Dowl. 291 ; unless at war with this country (Ba/rrich v. Buha, 16 C. B. 492). Mere residence abroad is insufficient, if it appear that the witness can attend at the trial : {Castelli v. Groom, 18 Ad. & El. 490.) A party who is going abroad will sometimes be ordered to be examined [Pi/rie v. Iron, 8 Bing. 143) ; but if on his own behalf, special terms wiU be imposed, and an affidavit of bona fides required : {Fischer v. Main, 13 C. B. N. S. 659.) The order will not be granted when it will cause delay, and the applicant has been dilatory in trying to obtain it : (Steuart v. Gladstone, L. Rep. 7 Oh. Div. 395; 37 L. T. Rep. N. S. 576; 47 L. J. 154, Oh.; 26 W. R. 277.) (4.) When Application Made. The application should be made as soon as possible after issue joined : (Brydges v. Fisher, 4 M. & Scott, 458, and see cases cited Taylor, 447.) Where some of the plaintiffs in an action were abroad, and having a small interest in the action did not intend to appear at the trial ; on the application of the remaining plaintiff, a commission was appointed to take the evidence of those plaiatifEs who were abroad : (Banque Franeo- Egyptimme v. Imtscher, 41 L. T. Rep. N. S. 468; 28 W. R. 133.) (5.) How Application Made. The application may be by motion on notice, or by summons. (6) Evidence. Evidence must be given by affidavit that the witnesses, some of whom, unless under very special circumstances must be named or described, are material and necessary witnesses, that the application is bona fide, and that the evidence to be taken under the commission cannot otherwise be obtained without great inconvenience and expense : (Taylor, 448 ; Spiller V. Paris Skating Rink Company, W. N., 1878, p. 228 ; 27 W. R. 225.) The affidavit must further disclose either that the witness is out of the jurisdiction of the court, or that he wiU be so at the time of the trial, being about to leave the country, or that he is in such a precarious state of health as to render it highly improbable that he wiU be able to attend the trial: (Taylor, 449) In case of ill-health the affidavit of a medical man should be produced : {Bavies v. Lowndes, sup.) (7) Forms of Orders. The following forms of order for a commission to issue are given in the schedule to the Rules of April, 1880. FiEST OE Shoet Obdeb. In the High Court of Justice. Division. 18 No. . Master in Ohambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the- day of 18 , and It is ordered that the be at liberty to issue a commission for the- examination of the witnesses on behalf at Miidence. 309 And it is fuTther ordered that the trial of this action be stayed nntil the retnrn of the said commission, the usual long order to be drawn up, and unless agreed upon by the parties within one week, to be settled by a master, and that the costs of this application be Dated the day of 18 . (Sched. H. 35, rr. April, 1880.) Second ob Lonq Obdeb. In the High Court of Justice. Division. 18 No. . Master in Chambers. Between Plaintiff, and Defendant. Upon hearing and upon reading the af^davit of filed the day of 18 „and It is ordered as follows : 1. A commission may issue directed to of and of commissioners named by and on behalf of the and to of and of commissioners named by and on behalf of the for the examination upon interrogatories and vi/vd voce of witnesses on behalf of the said and respectiTcly at aforesaid before the said commissioners, or any two of them, so that one commissioner only on each side be present and act at the examination. 2. Both the said and shall be at liberty to examine upon interrogatories and vivA voce upon the subject-matter thereof or arising out of the answers thereto such witnesses as may be produced on their behalf, with liberty to the other party to cross-examine the said witnesses upon cross interro- gatories and mva voce on the subject matters thereof or arising out of the answers thereto, the party producing the witness for examination being at liberty to re-examine bun vvoS, voce ; and all such additional vivSj voce questions, whether on examination, cross-examination, or re-examination, shall be reduced into writing, and, with the answers thereto, returned with the said commission. 3. Within days from the date of this order, the solicitors or agents of the said and shall exchange the interrogatories they propose to administer to their respective witnesses, and shall also within days from the exchange of such interrogatories, exchange copies of the cross-interrogatories intended to be administered to the said witnesses. 4. days previously to the sending out of the said commission, the solicitor of the said shall give to the solicitor of the said notice in writing of the mail or other conveyance by which the commission is to be sent out. 6. days previously to the examination of any witness on behalf of the said or respectively, notice in writing signed by any one of the commissioners of the party on whose behalf the witness is to be examined and stating the time and place in which the intended examination, and the names of the witnesses intended to be examined, shall be given to the commissioners of the other party by delivering the notice to them personally, or by leaving it at their usual place of abode or business, and if the commissioners of that party neglect to attend pursuant to the notice, then one of the commissioners of the party on whose behalf the notice is given shall be at liberty to proceed with and take the examination, of the witness or witnesses ex 'parte, and adjourn any meeting or meetings, or continue the same, from day to day until all the witnesses intended to be examined by virtue of the notice have been examined, without giving any further or other notice of the subsequent meeting or meetings. 6. In the event of any witness on his examination, cross-examination, or re- examination producing any book, document, letter, paper, or writing, and refusing for good cause to be stated in his deposition, to pai:t with the original thereof, 310 Evidence. then a copy thereof, or extract therefrom, certified by the commissioners or com- missioner present to be a true and correct copy or extract, shall be annexed to the witnesses' depostion. 7. Each witness to be examined under the commission shall be examined on oath, affirmation, or otherwise in accordance with his religion by or before the said commissioners or conmiissioner. 8. Kany one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories and vivA voce questions, if any, being previously translated into the language with which he or they is or are conver- sant), then the examination shall be taken in English through the medium of an interpreter or interpreters, to be nominated by the commissioners or com- missioner, and to be previously sworn according to his or their several religions by or before the said commissioners or commissioner truly to interpret the questions to be put to the witness or witnesses, and his and their answers thereto. 9. The depositions to be taken under and by virtue of the said commission shall be subscribed by the witness or witnesses, and by the commissioners or commissioner who shall have taken such depositions. 10. The interrogatories, cross-interrogatories, and depositions, together with any docnjnents referred to therein, or certified copies thereof, or extracts therefrom, shall be sent to the Senior Master of the Supreme Court of Judicature on or before the day of , or such further or . other day as may be ordered, enclosed in a cover under the seal or seals of the said commissioners or commissioner, and office copies thereof may be given in evidence on the trial of this action by and on behalf of the said and respectively, saving all just exceptions, without any other proof of the absence from this country of the witness or witnesses therein named, than an affidavit of the solicitor or agent of the said or respectively, as to his belief of the 11. The trial of this cause is to be stayed until the return of the said commission. 12. The costs of this order, and of the commission to be issued in pursuance hereof, and of the interrogatories, cross-interrogatories, and depositions to be taken thereunder, together with any such document, copy or extract as afore- said, and official copies thereof, and all other costs incidental thereto, shall be Dated the day of 18 (Schedule H. 30, Rules, April, 1880.) (8) Praecipe for "Writ. The form of praecipe, on sealing a commission, is given in Schedule B. 16, to the Enles of April, 1880. (9) Date and Teste of Commission. [The writ of commission] shall bear date on the day on which the same shall be issued, s,nd shall be tested in the name of the Lord Chancellor, or i£ the office of Lord Chancellor shall be vacant, in the name of the Lord Chief Justice of England : (O. IE., r. 8.) (10) Form of Commission. The foUowing form of a commission is given in Schedule G. 11, to the Rules of April, 1880.) In the High Court of Justice. Division. 18 No. Between Plaintiff, and Defendant. Victoria, by the grace of God of the United Kingdom of Great Britain and Ire- land Queen, Defender of the Faith, to of and of Commissioners named by and on behalf of the and to of and of Commissioners named by and on behalf of the greeting : Know ye that we in confidence of your prudence and fidelity have Kvidence. 311 appointed you and by these presents give yon power and authority to examine on interrogatories and vivA voce as hereinafter mentioned witnesses on behalf of the said and respectively at before you or any two of yon, so that one Oommiasioner only on each side be present and act at the eza- mination. — ^And we command yon as follows ; 1. Both the said and the said shall be at liberty to examine on interrogatories and viv& voce on the subject matter thereof or arising out of the answers thereto such witnesses as shall be produced on their behalf with liberty to the other party to cross-examine the said witnesses on cross-interroga- tories and viuA voce on the subject matters thereof or arising out of the answers thereto, the party producing any witness for examination being at liberty to re- examine him vivA voce ; and all such additional vivA voce questions, whether on examination, cross-examination, or re-examination, shall be reduced into writing, and with the answers thereto shall be returned with the said commission. 2. Not less than days before the examination of any witness on be- half of either of the said parties, notice in writing, signed by any one of you, the Commissioners of the party on whose behalf the witness is to be examined, and stating the time and place of the intended examination and the names of the witnesses to be examined, shall be given to the Commissioners of the other party by delivering the notice to them, or by leaving it at their usual place of abode or business, and if the Commissioners or Commissioner of that party neglect to attend pursuant to the notice, then one of you, the Commissioners of the party on whose behalf the notice is given, shall be at liberty to proceed with and take the examination of the witness or witnesses ex pwrte, and adjourn any meeting or meetings, or continng the same from day to day nntU all the witnesses in- tended to examined by virtue of the notice have been examined, without giving any further or other notice of the subsequent meeting or meetings. 3. In the event of any witness on his examination, cross-examination, or re-examination producing any book, document, letter, paper, or writing, and refusing for good cause, to be stated in his deposition, to part with the original thereof, then a copy thereof, or extract therefrom, certified by the commissioners or commissioner present and acting to be a true and correct copy or extract shall be annexed to the witnesses' deposition. 4. Each witness to be examined under this commission shall be examined on oath, affirmation, or otherwise in accordance with his religion by or before the commissioners or commissioner present at the examination. 5. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and vivA voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shaU be taken in English through the medium of an interpreter or interpreters to be nominated by the commiesioners or commissioner present at the examination, and to be previously sworn according to his or their several religions by or before the said commissioners or commissioner truly to interpret the questions to be put to the witness and his answers thereto. 6. The depositions to be taken under this commission shall be subscribed by the witness or witnesses, and by the commissioners or commissioner who shall have taken the depositions. 7. The interrogatories, cross-interrogatories, and, depositions, together with any documents referred to therein, or certified copies thereof or extracts there- from, shall be sent to the senior master of the Supreme Court of Judicature on or before the day of inclosed in a cover under the seals or seal of the commissioners or commissioner. 8. Before you or any of you, in any manner act in the execution hereof yon shall severally take the oath hereon indorsed on the Holy Evangelists or otherwise in such other manner as is sanctioned by the form of your several religions and is considered by yon respectively to be binding on your respective consciences. 312 Evidence. And we give yon or any one of yon anthority to administer such oath to the other or others of yon. Witness, Httoh MaoCaiiMONt, Eael Oaibns, Lord High Chancellor of Great Britain, the day of , in the year of Oar Lord One thousand eight hnndred and This writ was issued by of agent for of solicitor for the who reside at Witnesses' Oath. Yon are tme answer to make to all such questions as shall be asked you, without favour or affection to either party, and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you God. COMMISSIONEES' OATH. Ton shall, according to the beat of your skill and knowledge, truly and faith- fully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined by virtue of the commission within written. So help you God. Inteepbetees' Oath. Ton shall truly and faithfully, and without partiality to any or either of the parties in this cause, and to the best of your ability, interpret and translate the oath or oaths, affirmation or affirmations which shall be administered to, and all and every the questions which shall be exhibited or put to, all and every witness and witnesses produced before and examined by the commissioners named in the commission within written, as far forth as you are directed and employed by the said commissioners, to interpret and translate the same out of the English into the language of such witness or witnesses, and also in like manner to interpret and translate the respective depositions taken and made to such questions out of the language of such witness or witnesses into the English language. So help you Gk>d. Clebk's Oath. Ton shall truly, faithfully, and without partiality to any or either of the parties in this cause, take, write down, transcribe, and engross all and every the questions which shall be exhibited or put to all and every witness and witnesses, and also the depositions of all and every such witness and witnesses produced before and examined by the said commissioners named in the commission within written, as far forth as you are directed and employed by the commissioners to take, write down, transcribe or engross the said questions and depositions. So help yon God. Direction of Interrogatories, &c., when returned by the Commissioners. The Sbniob Mastek or the Scpebme Coxjbt op Judicatuee, Boyaii Couets OP JussicE, London. It is in the discretion of the court to order examination to be by written interrogatories or orally, either altogether, or as to particular portions of the evidence : (Taylor, 451.) But the manner must be stated : {Atkins v. Palmer, 4 B. & Aid. 377.) The order must state the place to which the commission is directed, and, where the examination is within the jurisdiction, the names of the commissioners : (PoweU on Evidence, 3rd ed., 410.) (11) Disallowing Questions. After a commission has been granted to examine witnesses in a foreign Evidence. 313 country, the court, before its execution, has a discretionary power to disallow any interrogatories or cross-interrogatories, which are likely to deter a witness from giving evidence before the commission: (Taylor, 451.) (12) Proceedings before Commissioners. The commissioners must substantially follow the instructions which they have received by the instrument appelating them, though the court will not look out critically for objections to their conduct, but will rather in their favour presume that they have discharged their duty : (Taylor, The evidence must be such, in substance, as would be received according to the English law : (Id.) But if hearsay or secondary evidence is taken without objection being made by a party who has joined in procuring the commission, he cannot object afterwards : (See post, 6 (e).) For directions for holding the court in India and the colonies, see 13 Geo. 3, c. 63, ss. 40, 44 ; 1 Will. 4, c. 22, s. 1 ; Taylor, 441. Under a commission under 1 & 2 WiU. 4, c. 22, the examination is to be on oath or affirmation, when such is allowed (s. 7) ; and the person taking the examination must make, if need be, a special report to the court touching the examination and the conduct or absence of any witness or other person thereon, or relating thereto, and the court may make order thereon as in case of contempt of court : (s. 8.) (13) Compelling Attendance of Witnesses. [See post, 5.] 3. Before Examineb by Consent. (a) Sow Consent given. If at any time after issue joined the parties shall, by writing signed by them or their respective solicitors, and filed at the [Central Office] agree that the oral examination in chief and cross-examination of any witness or witnesses (whether a party or parties, or not), or the cross-examination of any person or persons who shall have made an affidavit or affidavits, or who shall have been examined ex parte before an examiner, shall be taken before one of the examiners of the court, or a special examiner, in manner provided by the stat. 15 & 16 Vict! c. 86, such examination may be taken accordingly : (Ch. O., 5th Peb. 1861, r. 10.) (6) Appointment for Exa/mination. An appointment for the examination must be obtained from the examiner, and notice thereof given to the opposite party and the witnesses : (Dan. 802 ; and see post, 5 (6) as to the notices required.) (c) Subpoenas. As to the fees payable on an examination, see Pees. If it is supposed a witness will not attend voluntarily, he must be served personally with a subpoena ad testificandum or duces tecvm,, his reason- able expenses being paid or tendered, whether he is a party to the cause or not: (Dan. 802-^, and see post, 5 (e).) (d) Order to Attend. If after service the witness neglect or refuse to attend, a certificate of non-attendance must be procured from the examiner, and an application made to the court, on motion, ex parte, or on notice to the witness, for an order on the witness to attend and be sworn and examined at such time and place as the examiner may appoint : (Dan. 804-5.) The application must be supported by an affidavit of due service, and production of the certificate of non-attendamce, or an office copy thereof : (Dan. 804.) 314 Kvidence. A further appointment must be obtained, and notice thereof, and of the order served on the witness : [Id.) If he then maies default, a further certificate of non-attendance must be filed, after which an order for committal or an attachment may be applied for : (see Aeeest, ExECtrTiON.) If a witness attending on subpoena duces tecum refuse, without sufficient cause, to produce the documents required, he may be ordered, on motion with notice, to attend again and produce it, and to pay all the costs occasioned : (Dan. 805.) The examination usually takes place at the examiner's office, and a witness, by ap;^earing, waives any irregularity in the process. He need wait only half an hour : (Morg. & Oh. 177.) In case, by virtue of any such agreement, any witness or person shall be examined in chief before the examiner or special examiner, the cross- examination and re-examination of such witness or person shall be taken before the same examiner or special examiner, or his successor in office ; and the cross-examination of every witness so examined in chief shall immediately follow his examination in chief, and the re-examination of every witness or person so cross-examined shall immediately follow his cross-examination : (Ch. O., Feb. 1861, r. 10.) (e) Sow Examination Conducted. All witnesses to be examined orally under [16 & 16 Vict. c. 86] shall be so examined by or before one of the examiners of the court, or by or before an examiner to be specially appointed by the court, the examiner being furnished by the plaintifE with a copy of the [pleadings] , if any, in the cause ; and such examination shall take place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses so examined orally shall be subject to cross-examination and re-examination : (15 & 16 Vict. c. 86, s. 31.) The examiner's office is not a public court, and he has no discretion tO' admit any persons other than the parties and their counsel, solicitors, and agents : {Be Western of Canada Oil Lands and Works Company Limited, L. Rep. 6 Ch. Div. 109 ; 46 L. J. 683, Ch. ; 25 W. R. 787.) The depositions taken upon any such oral examination as aforesaid shall be taken down in writing by the examiner, not ordinarily by question and answer, but in the form of a narrative : (15 & 16 Vict. c. 86, s. 32.) Depositions of witnesses are to be written on foolscap paper, book wise or brief wise, as the examiner may think fit ; [but the masters] may receive and file depositions written otherwise .... if in their opinion the cir- cumstances of the case render such reception and filing desirable or necessary : (Ch. 0., 6th March, 1860, r. 16.) The examiner need not take down the evidence in writing himself. If the other parties are present when it is taken down, and the examiner certifies that the deposition has been read over to the witness and signed by him in the examiner's presence it is sufficient: (Bolton v. Bmon,. L. Rep. 2 Ch. Div. 217 ; 34 L. T. Rep. N. S. 123 ; 24 W. R. 426.) It shall be in the discretion of the examiner to put down any paorticular question or answer, if there should appear any special reason for aoing so ; and any question or questions which may be objected to shall be noticed or referred to by the examiner in or upoix the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement on the face of the depositions, but he shall not have power to decide upon the materiality or relevancy of any question or questions : (15 & 16 Vict. c. 86, s. 32.) When a witness refuses to be sworn or to answer any lawful questiom the same course is to be adopted with respect to him as at the time of Svidence. 31 5 passing of the Act was pursued in the case of a witness produced for examination before an examiner of the court upon written interrogatories, and so refusing : (15 & 16 Vict. c. 86, s. 33.) The practice in such cases was to obtain the examiner's certificate, and upon that and an affidavit of ser-vice of the subpoena, an order of course was obtained for the witness to ■ comply within four days or stand com- mitted ; and if after service of that order he still refused, either another order for his committal might be obtained upon a similar certificate of the examiner, and an affidavit of service of the order, or the first order might be enforced by attachment under the general orders of the court : (Jarm. 139.) Demurrers or objections of witnesses to questions put to them are to be taken down by the examiner and transmitted by him to the [proper] office of the court, to be there filed, and their validity shall be decided by the court, and the costs of and occasioned by such demurrers or objections shall be in the discretion (ff the court : (15 & 16 Yict. c. 86, s. 33.) The demurrer may be set down for hearing on an order obtained on petition of course : (Dan. 825.) The order need only be served on the witness, unless privilege is claimed by the solicitor of the party, when the party also should be served : (Id.) If the court considers the demurrer bad it will overrule it, in which case an order will be made for attendance and examination, which may be enforced by committal : (Id.) Instead of setting down the demurrer, the party who asked the question may move, on notice to the witness, that the witness may attend the examiner at his own expense, and be further examined . (Dan. 826.) This is ordered, unless the objection is allowed : {Id.) The proceedings before the examiner may at any stage be transferred from his office into court : {Com/merdal Union Assurance Gotnpany V. Uzielli, 39 L. T. Rep. N. S. 665 ; 27 W. R. 356.) (/) Signing Depositions. [The depositions] when completed shall be read over to the witness, and signed by him in the presence of the parties, or such of them as may think fit to attend : {Id.) In case the witness shall refuse to sign the said depositions, then the examiner shall sign the same, and such examiner may, upon all examina- tions, state any special matter to the court as he shall think fit : {Id.) If the examiner omits to sign the depositions, the court may order them to be filed: (Dan. 806.) If the examiner dies before signing the depositions they must be signed by his successor : {Id.) {g) FiUng Depositions. When the examination of witnesses before any examiner shall have been concluded, the original depositions, authenticated by the signature of such examiner, shall be transmitted by him to the [Central Office], to be there filed, and any party to the suit may have a copy thereof or of any part or portion thereof upon payment for the same : (15 & 16 Vict. c. 86, s. 34 ; and see Copies.) {h) Printing Depositions. [See post, 6 (6).] {%) Costs. The court [has] power to deal with the costs of immaterial or irrelevant depositions as [is] ]ust : {Id., s. 32.) 4. Oeoss-Examination out of Ooubt. {a) On Affidavit. [See post III., 15.] (b) On Accownt. [See Account.] 31 6 Evidence. 5. OoMPEMiiNG Attendance of Witnesses. (a) At the Trial. A witness required to attend at the trial of a cause, and who wiU not be likely to attend voluntarily, must be served with a subpoena ad testifican- dum: or if he is also required to produce documents, with a subpcena d/uces tecum. As to the preparation and service of subpoenas, see post (e). (6) Before Examiners. Any party. . . . requiring the attendance of any witness, whether a party or not, before one of the examiners of the court, or a special examiner, for "the purpose of being examined or cross-examined, shall give to the opposite ^arty forty-eight hours' notice at least of his intention to examine or cross-examine such witness, such notice to contain the name and descrip- tion of the witness, and the time and place of such examination, or cross- . examination unless the court shall .... think fit to dispense with such notice : (Oh. O., Feb. 1861, r. 22.) The rule as to forty-eight hours' notice may be relaxed : (Be Brito v. . SUM, L. Rep. 16 Eq. 213; 28 L. T. Bep. N. S. 59.) The witness is entitled only to reasonable notice : (iJe North Wheal Hmnouth Mining Co., 31 Beav. 628 ; 7 L. T. Rep. N. S. 306.) Any party in any cause or matter depending in the said court may, by a writ of subpcena ad testificandum or duces tecum, require the atten- dance of any witness before an examiner of the said court, or before an examiner specially appointed for the purpose : (15 & 16 Tict. c. 86, s. 40.) A general form of subpcena ad test, is given in Schedule G. 1 to the Rules of April, 1880. In flUing it up, regard must be had to the form in .Schedule E. 3 to the Consolidated Orders. The names of three witnesses may be inserted : (C. O. XXVIII., r. 3 ; Hules of April, 1880, Schedule G. 1.) A gener^ form of subpcena duces tecum is given in Schedule G. 2 to the Hules of April, 1880. In filling it up regard must be had to the form in Schedule E. 3 to the Consolidated Orders. The names of three witnesses may be inserted, [and] documents to be produced must be specified : (Note to Schedule G. 2, Rules of April, 1880.) (c) At Chambers. Where a subpoena is required for the purpose of proceedings in Oham- l)ers, such subpcena shall be issued from the rCentrall Office upon a note from the Judge : (C. O. 35, r. 29.) [d) On Com/missions. (1) Abroad. Where any writ or commission [issued under the Act of Geo. 3, or of WiU. 4] the judge or judges to whom the same shall be directed shall have the like power to compel and enforce the attendance and examination of witnesses as the court whereof they are judges does or may possess ior that purpose in suits or causes depending in such court : (1 WiU. 4, o. 22, 8. 2. And see post, XIII.) (2) In Scotland or Ireland. If an^ person, after being served with a written notice to attend any commissioner or commissioners appointed to execute any .... commis- sion for the examination of witnesses [issued by the courts of law or equity in England or Ireland, or by the courts of law in Scotland, to be executed in a part of the realm subject to different laws from that in -which the commission was issued] (such notice being signed by the «ommissioner or commissioners, and specifying the time and place of Evidence 31 7 attendance), shall refuse or fail to appear and be examined under such, commission, such refusal or failure to appear shall be certified by such commissioner or commissioners, and it shall thereupon be competent, to or on behalf of any party suing out such commission, to apply to any of the superior courts of law in that part of the kingdom withji which such commission is to be executed, or any one of the judges of such courts, for a rule or order to compel the person or persons so refusing or failing as aforesaid to appear before such commissioner or commissioners, and to be examined under such commission ; and it shall be lawful for the court or judge to whom such application shall be made by rule or order to command the attendance and examination of any person to be named, or the production of any writings or documents to be mentioned in such rule or order : (6 & 7 Yiot. c. 82, s. 5.) Upon the service of such rule or order upon the person named therein, if he or she shall not appear before such commissioner or commissioners as aforesaid for examination, or to produce the writings or documents mentioned in such rule or order, the disobedience to such rule or order shall, if the same shall happen in England or in Ireland, render the person disobeying, subject and liable to such pains and penalties as he or she would be subject and liable to by reason of disobedience to a writ of subpoena in England or in Ireland ; and if such disobedience shall happen in Scotland it shall be competent to the Lord Ordinary on the biUs, upon an application made to him by or on behalf of any party suing out such commission, and upon proof of such disobedience made before him, to direct the issue of letters of second diligence, according to the forms of the law of Scotland, to be used against the person disobeying such rule or order : {Id., a. 6.) Every person whose attendance shall be so required shall be entitled to the like conduct-money and payment of expenses and for loss of time as for and upon attendance at any trial in a court of law ; (Id., s. 7.) No person shall be compelled to produce under such rule or order any writing or other document that he or she would not be compellable to produce at a trial, nor to attend on more than two consecutive days, to be named in such rule or order : (Id.) Attendance may also be compelled under 22 Vict. c. 20 : (see post, Xm., and Campbell v. Attorney-General, L. Rep. 2 Oh. App. 571.) (3) In England. When any rule or order shall be made for the examination of witnesses within the jurisdiction of the court wherein the action shall be depending, by authority of this Act, it shall be lawful for the court, or any judge thereof, in and by the first rule or order to be made in the matter, or any subsequent rule or order, to command the attendance of any person to be named in such rule or order for the purpose of being examined, or the production of any writings or other documents to be mentioned in such rule or order, and to direct the attendance of any such person to be at his own place of abode, or elsewhere if necessary or convenient so to do : (1 Will. 4, c. 22, s. 6.) The vrilful disobedience of any such rule or order shall be deemed a contempt of court, and proceedings may be thereupon had by attachment (the judge's order being made a rule of court before or at the time of the application for an attachment), if, in addition to the service of the rule or order, an appointment of the time and place of attendance in obedience thereto, signed by the person or persons appointed to take the examination, or by one or more of such persons, shall be also served together with or after the service of such rule or order : (Id.) Every person whose attendance shall be so required shall be entitled to 318 'Evidence. the lite conduct money and payment for expenses and loss of time as upon attendance at a trial : (Id.) No person shall be compelled to produce, under any such rule or order, any writing or other document that he would not be compellable to produce at a trial of the cause : (Id.) (4) When Witness in Prison. Any sheriff, gaoler, or other officer having the custody of any prisoner [may] take such prisoner for examination under the. authority of [the] Act, by virtue of a writ of habeas corpus, to be issued for that purpose, which writ shall and may be issued by any court or judge under such circumstances and in such manner as such court or judge may .... issue .... a writ of habeas corpus ad testificandum : (1 WiU. 4, c. 22, s. 6.) (e) Subpoenas. (1) Generally. Where it is intended to sue out a subpoena, a praecipe for that purpose, in the usual form, and containing the name or finn and the pla) Fees under Acts of Parliament. (c) Paupers. III. WHAT FEES TO BE PAID. .IV. HOW PEES PAID. V. SCALES OP PEES. 1. LOWBB SCAIiB. 2. HiGHBB Scale. 3. Payment on Impeopeb Scale. VI. DEPOSIT POR PROBABLE PEES. VII. SCHEDULE OP FEES AND STAMPS (ALPHABETICALLY ARRANGED). I. INTERPRETATION" CLAUSE. The provisions of Order LXIII. in the first Schedule to the Supreme Fees. 375 Court of Judicature Act, 1875, shall apply to this order : (O. 28th Oct. 1875, r. 8.) As to the meaning of the word " folio," see Folio. II. ABOLITION OF FORMER FEES. 1. Gbnekallt. Save as otherwise provided by [the] Order, all former fees, and percentages vrhich [mightj be taken in any of the courts whose jurisdiction is, by the Judicature Acts, 1873 and 1875, transferred to the High Court of Justice or Court of Appeal, or in any office which is connected with any of those courts, or in which any business connected with any of those courts is conducted, or by amy officer paid whoUy or partly out of public moneys who is attached to any of those courts, or the Supreme Court, or any judge of those courts, or any of them .... are .... abolished : (O. 28th Oct. 1875, r. 6.) 2. Exceptions. (a) Fees to Sheriffs. The .... fees and percentages authorised to be taken by any sheriffs, under-sheriffs, deputy-sheriffs, bailiffs, or other officers or ministers of sheriffs [before the passing of the Judicature Acts are not affected] : (O. 28th Oct. ^875, r. 4.) The fees for the performance of official duties to be taken by sheriffs and their officers are sanctioned by an order of the 20th Deo. 1837, made pursuant to 1 Vict. c. 55. The table of fees is given in Baxter's Practice, 4th ed. App. clxxis. As to fees payable on a view, the following provision has been made : (R. G. H. T. 1853, r. 49.) Upon any application for a view there shall be an affidavit stating the place at which the view is to be made, and the distance thereof from the office of the under sheriff, and the sum to be deposited in the hand of the under sheriff shall be lOZ. in case of a common jury, and 16Z. in case of a special jury, if such distance do not exceed five miles, and 15Z. in case of a common jury, and 21Z. in case of a special jury if it be above five miles. And if such sum shall be more than sufficient to pay the expenses of the view, the surplus shall forthwith be returned to the [solicitor] of the party who obtarned the view; and if such sum shall not be sufficient to pay such expenses the deficiency shall forthwith be paid by such [solicitor] to the under-sheriff ; and the under-sheriff shall pay and account for the money so deposited according to the scale following — ^that is to say : £ s. d. JPor travelling expenses to the under-BlierifF, showers, and jurymen, expenses actually paid, if reasonable. Fee to the under-sheriff, when the distance does not exceed five miles from ^iH office ... ... ... ... ... ... ... ...1 1 Where such distance exceeds five nules ... ... ... ... ...2 2 And in case he shall be necessarily absent more than one day, then for each day after the first a fnriiher fee of . . . ... ... ... ... 1 1 Pee to each of the showers the same as the under-sheriff, calculating the distance from their respective places of abode. Fee to each common juryman, per diem ... ... ... ... ... 5 For each special juryman, per diem ... ... ... ... ...1 1 Allowance for refreshment to the under-sheriff, showers, and jurymen, whether common, or special, each per diem ... ... ...0 5 To the bailiff for summoning each juryman whose residence is not more than five miles distant from the office of the under-sheriff ... ... 2 6 And to each whose residence does exceed five miles of such distance ... 5 376 Fees. (6) Fees under Acts of Pa/rliament. The .... fees and percentages directed to be taken or paid by any Act of Parliament, and in respect of wbicli no fee or percentage is ... . proTided [by the Order are not affected] : (O., Oct. 28th, 1875, r. 4.) (c) Paupers. The former practice applies : (see Paupebs.) III. WHAT PEES TO BE PAID. The fees and percentages contained in the schedtde hereto are fixed and appointed to be, and shall be taken in the High Court of Justice, and in the Court of Appeal, and in any court to be created by any commission, and in any office which is connected with any of those courts, or in which any business connected with any of those courts is conducted, and by any officer paid whoUy or partly out of public moneys who is attached to any of those courts or the Supreme Court, or any judge of those courts, or any of them : (O. 28th Oct., 1876, r. 1.) The first two columns on the left hand of the schedule given post, VII. comprise the schedule above mentioned. The other columns comprise the schedule to the rules of April, 1876 : (see post, IV.) IV. HOW FEES PAID. The .... fees and percentages shall be taken by stamps : (0. 28th Oct., 1875, r. 1.) [Except at Manchester and Liverpool] fees and percentages .... taken in the district registries .... shall, until further order, be taken in money : (Id.) All'the fees and percentages contained in the schedule . . . ., which are taken in the district registries at Liverpool and Manchester respectively of the High Court of Justice, shall be taken in stamps : (O., 24th Oct., 1877, r. 2.) Any document which ought to bear a stamp in pursuance of this Act, or any rule or order made wiereunder, shall not be received, filed, used, or admitted in evidence unless and until it is properly stamped, within the time prescribed by the rules under this section regulating the use of stamps; but if any such document is through mistake or inadvertence received, filed, or used without being properly stamped, the Lord Chan- cellor or the court may, if he or it shall think fit, order that the same be stamped as in such order may be directed : (J. A., 1875, s. 26, sub-s. 4.) The stamps used for denoting .... fees and percentages shall be of the character, and be applied and dealt with, as prescribed by the schedule [to the order of the 22nd of April, 1876] : (O. XXII., April, 1876, r. 1.) This schedule gives in the same order the proceedings detailed in the schedule to the order as to court fees of the 28th Oct., 1875. In the schedule given {post, VII.) the two schedules are consolidated, the first two columUs to the left hand being taken from the order of 1875, and the other columns from the order of 1876. In any case in which the use of impressed stamps is prescribed, paper or parchment on which the document requiring a stamp is to be written, may be stamped at the Inland Revenue Office, notwithstanding that stamped forms are also supplied by the Commissioners of Inland Revenue. The cancellation shall be effected in such manner as the Commissioners of Inland Revenue shall from time to time direct : (Greneral Directions to O. XXII., April, 1876.) Fees. 377 V. SCAiE OF FEES. 1. LOWEE ScAIiE. The fees and percentages set forth in the colTunn headed Lower Scale in the Schedule nereto are to be taken and paid in all cases in which the lower scale of fees is to be charged and allowed to solicitors under the provisions of the Additional Rules of Court under the Supreme Court of Judicature Act, 1875, issued by Order in Council, dated the 12th Aug. 1876 : (O. 28th Oct. 1875, r. 2; see Costs.) In causes and matters by the 34th section of the Supreme Court of Judicature Act, 1873, assigned to the Chancery Division [as to which, see Action], the solicitor or party acting in person shalL, on any proceeding in which he claims to pay fees accoraing to the lower scale, file with the proper officer a certificate in the form hereunder set forth, of which cer- tificate the officer is, at the request of any solicitor or any party acting in person in the cause or matter, to mark a copy without a fee : (O. 28th Oct. 1875, r. 3.) The following is the form : — (Title of Cause or Matter.) I hereby certify that to the best of my judgment and belief the lower scale of fees of court is applicable to this case. Dated, &o. A. B. Solicitor for plaintiff or defendant. On production of such copy of the certificate all officers of the court are to receive and file all proceedings in the cause or matter bearing stamps according to the lower scale : {Id.) 2. HlGHEB SCAIiE. The fees and percentages set forth in the column headed Higher Scale in the schedule hereto are to be taken and paid in all other cases [than those in which the lower scale of fees is allowed to solicitors] : (O. 28th Oct. 1875, r. 2; see Costs.) 3. Payment on Impeopee Scaib. In any case certified for the lower scale of court fees, in which it shall happen that the solicitor shall become entitled to charge and be allowed according to the higher scale of solicitors' fees, the deficiency in the fees of court is to be made good : (O. 28th Oct. 1875, r. 3.) In any case in which the fees have been paid upon the higher scale, and in which it shall happen that the solicitor shall become entitled to charge and be allowed only according to the lower scale of solicitors' fees, the excess of fees so paid may be allowed upon the taxation of costs, if the circumstances of the case shall, in the judgment of the taxing officer, justify such allowance : (Id.) VI. DEPOSIT FOB PROBABLE FEES. In any case in which a deposit on account of probable fees and expenses is required, the following regulation shall be observed : (a) The party, or his solicitor, from whom under any order as to court fees, a deposit may be required, shall, before the cause or matter be proceeded with, present for the signature of the officer of the court requiring the deposit, a certificate, duly stamped, for the amount of such deposit. Forms of certificates provided by the Commissioners of Inland Revenue may be obtained at the Inland Revenue Office, Somerset House, or at such other places as the commissioners may appoint. 378 Fees. (6) When the fees and expenses are ascertained, the said officer of the court shall endorse upon the said certificate the amount thereof. (c) If the amount is in excess of the deposit, the certificate, bearing an additional stamp equal to the excess, must be produced to the said officer before he delivers his judgment or award, or gives his decision in the matter or cause. (d) If the amount of the fees and expenses is less than the deposit, the holder of the certificate may obtain repayment of the difference upon presenting the certificate so endorsed at the Inland Revenue Office, Somerset House : (O., 22nd April, 1876, r. 3.) Vn. SCHEDULE OF FEES AHD STAMPS (Alphabetically arranged). AccovMiS'- ^'^«r ffighor Scale. Scale. „ . , . . . . ,. . £ s. d. £ s. i. On taking an acconnt of a receiver, guardian, consignee, bailee, manager, provisional, official, or voluntary liqui- dator, or sequestrator, or of an executor, administrator, trustee, agent, solicitor, mortgagee, co-tenant, co-partner, execution creditor, or other person liable to account, when the amount found to have been received without deduct- ing any payment shall not exceed 200Z. ... ... ...0 2 020 Where such amount shall exceed 2001. for every 50J. or fraction of 501 6 6 Where the same persons are both trustees and .executors, the per- centage must be paid both on the gross receipts of the trustees and the gross receipts of the executors : {Armitage v. Blworthy, L. Bep. 13 Ch. Div. 91 ; 41 L. T. Bep. N. S. 608 ; 28 W. B. 283.) In the case of any such receiver, guardian, consignee, bailee, manager, liquidator, sequestrator, or execution creditor, the fees shall, upon pay- ment, be allowed in the account unless the court or judge shall otherwise direct, and in the case of taking the accounts of such other accounting parties the fees shall be paid by the party having the conduct of the order under which such account is taken as part of his costs of the cause or matter (unless the court or judge shall otherwise direct), and in such case shall be taken upon the certificate of the result of any such account ; but the fees shall be due and payable, although no certificate is required, on the account taken, or on such part thereof as may be taken, and the solicitor or party suing in person shall in such case cause the proper stamqps (the amount thereof to be fixed by the officer) to be impressed on or affixed to the account. The officer taking the account may require a deposit of stamps on account of fees before taking the account, not exceeding the fees on the full amount appearing by the account to have been received, and the officer or his clerk tateag such deposit shall make a memorandum thereof on the account. The fees payable under this heading when taken on the accounts to be denoted by means of adhesive stamps affixed to the accounts or by im- pressed stamps on paper to be left at the office, but when taken on a certificate they may be denoted either by impressed or adhesive stamps : (Sched., O., 22nd April, 1876.) Acknowledgment, see post, Miscellaneous. Admission of solicitor, see post, Miscellaneous. Advertisement, see post. Miscellaneous. Affidavit, see post. Oath. Appeal, see post, Hearing. Fees. 379 Lower Scale. Higlier Scale. £ s. d. £ s. d. 2 2 Appearance — On entering an appearance, for each person The fee payable on entering an appearance to be denoted by an im- pressed stamp on the form of memorandum as prescribed by the appendix to the Supreme Court of Judicature Act, 1875, and where the appearance of more than one person is entered by the same memorandum, the fees for all persons beyond the first to be denoted by means of impressed or adhesive stamps. Forms of memorandum of appearance with the impressed stamp for one or more defendants wUl be sold at the Inland Revenue Office and by law stationers. For certificate of appearance, see post, Certificate. See also post. Searches and Inspections. Attendamces — Lower * Scale. £ s. d. On an application, with or without a snbpcBna, for any officer to attend as a witness, or to produce any record or doonment to be given in evidence (in addition to the reasonable expenses of the officer) for each day or part of a day he shall necessarily be absent from his office ... 1 The officer may require a deposit of stamps, on account of any further fees, and a deposit of money on account of any further expenses which may probably become payable beyond the amount paid for fees and expenses on the application, and the officer or his clerk taking such deposit shall thereupon make a memorandum thereof on application. The officer znay also require an undertaking in writing to pay any further fees and expenses which may become payable beyond the amounts so paid and deposited. The fees payable under this heading to be denoted either by an impressed or adhesive stamp on the subpoena, notice, or other document requiring the attendance oi the officer, If the officer's attendance be required beyond one day, the additional fee per diem after the first to be taken by means of a pr(Bcipe with the impressed stamp, filed in the department from which the officer is summoned. Award, see post. Filing. Bail, aee post. Baling; Miscellaneous. Bond, see post. Miscellaneous. Bill of Sale, see post. Filing. Caveat, see post, Filing. Certificates — Higher Scale. £ s. d. 10 Fees payable. Documentto be Stamped. Character of Stamp to be used. Lower Scale. £ s. d. Higher Scale. £ !. d. Begulations and Observations. peanmce, or of a plead- ing, affldavit, or pro- ceeding having been entered, filed, or taken, or of the negative thereof 10 4 CerHflcate Impressed or adhesive Forme of certi- ficate with the i mpreesed stamp, will be sold at the In- land Eevenue OfSoe and by law a ta- tioners. 380 Fees. [And see post, Sea/rimg, Register, of Jvdgme/at, &c., Taasation of Costs."] Comndssioib— Fees payable. Document to be Stamped. Character of Stamp to be used. Lower Scale. S, s. d. Higher Scale. £ s. d. BegulatioQB and Obserratione. On sealing or issuing a commiBsion to take oaths or affldavitB in the Supreme Court Every other commiBsion 5 10 6 10 Zmpressed Impressed Forms of oom- mission wifli the imptessed stomp will be sold at the In- land Bevenne OfBce. The commission to be written on impressed paper, or the document to be produced at the Ttl^^L^1^^ Bevenue to be stamped. Commitment, see post. Miscellaneous. Copies — Fees payable. Document to be Stamped. Lower Scale. i, s. d. Higher Scale. £ s. d. Character of Stamp to be used. For a copy of a written deposition of a witness to enable a party to print the same, for each folio For examming a written or printed copy, and marking same as an office copy, for each folio For making a copy and markiTiff same For a copy in a foreign language, the actual cost For a copy of a plan, map, section, drawing, photograph, or diagram, the actual cost For a printed copy of an order not being an oiBoe or certlfled cony, for eachfoUo 4 2 6 6 1 4 2 6 1 Copy /VaK^orcopy Copy Impressed or adhesive. Decree, see post, Judgments, &c. Decretal order, see post. Judgments, &c. Denvwrrer, see post. Hearing. Drawing wp Judgment, &c., see post, Judgm,mts, &c. BnteriMgfor Hea/ring, aeepost. Searing. Entering judgment, &c., s%Bpost, Judgments, &c. Evidence, see swp.. Attendances, Copies ; post. Examination of Wit- nesses ; Oath. Fees. 381 Emamination of Witnesses- Lower Scale. £ s. d. ' Higher Scale. £ s. d. 10 10 3 3 For every witness sworn and examined by an examiner or other officer in his office, including oath, for each hour . . . For an examination of witnesses by any such officer away from the office (in addition to reasonable travelling and other expenses), per day ... The officer may require a deposit of stamps on account of fees and a deposit of money on account of expenses which may probably become payable beyond any amount paid for fees and expenses upon the examination, and the officer, or hia clerk taking such deposit shall thereupon make a memorandum thereof and deliver the same to the party making the deposit. The officer may also require an 'undertaking in writing to pay any further fees and expenses which may become payable beyond the amount so paid and deposited. These fees are not to apply to the examination of witnesses for the purpose of any inquiry, taxation of costs, or other proceeding before the officer. The fees under this heading may still be denoted by means of adhesive stamps, which may be affixed either to the deposition or to the order or application paper for examination : (Sched. O., 22nd April, 1876.) As to attendances on application when officer is to attend as a witness or to produce records, see sup., Attendances. Fiat, see post. Miscellaneous. Filing — Onffling a special case or petition of right On filing an affidavit with exhibits (if any) an- nexed, BQbmission to arhitration, award, bill of Bale, warrant of attome7,cognovlt, bail, satisfaction piece, and writ of execution with return. On filing a scheme pur- suant to the statute of 30 & 31 Vict. c. 127, or the Liquidation Act, 1868 On filing a caveat Fees payable. Lower Scale. £ s. d. 10 2 loo 5 Higher Scale. £ I. d. 10 2 10 S Document to be Stamped. Special case, petition of right, or praecipe Document filed Scheme Caveat Character of Stamp to be used. Impressed Impressed or a^esive Impressed Impressed Begulations and Observations. When practi- cable, stamp to be on spe- cial case or petition of right, and in other cases on prsedpe filed. Ah to certificate of filing, see swp.. Certificate ; see also post, Begister of Judgment, &c. 382 Fees. Searing — For entering or setting down, or re-entering or resetting down, an appeal to the Court of Appeal, or a cause for trial or hearing in any court in London or Middlesex, or at any assizes, including a demurrer, special case, and petition of right, but not any other peti- tion, nor a summons adjourned from cham- bers. F«r certificate of an asso- ciata of tka result of trial. Fees payable. Lower Scale. & s. d. 10 Higher Scale. £ 8. d. 2 Document to be Stamped. In the Begistry OfSce, Chan- cery Divi- s i n, on forms pro- vided for the purpose. At offices of Associates on copy of pleadings At all other offices of the High Court or ^ Court of Appeal on Certificate Character of Stamp to be used. Impressed Impressed or Skdhesive Impressed Impressed or adhesive Begulationsand Observations. Forms with the impressed stamp, will be sold at the In- land Bevenue, and at the Be- gistrar's Office, Chan- cery Division, Inspection, see post, Searches amd Inspections. Judge^s Notes , see post, Miscellaneous, Judgments, &'c. — Pees payable. Document to be Stamped. Character of Stamp to be used. Lower Scale. £ s. d. Higher ScaJe. £ s. d. Begnlations and ObservationB. For drawing np and entering a judgment, or decree or decretal order, whetlier on the original hearing of a cause or on further conaideration, includ- ing aoanse commenced hy BnmmonB at cham- bers, and an order on the hearing of a spe- cial case or petition, and any order, by the Court of Appeal For drawing up and entering any other order, whether made in court or at cham- bers For copy of a plan, map, section, drawing, pho- tograph, or diagram required to accompany any order, the actual cost 10 3 10 S Judgment or order Order Oopy Stamp to be impressed or adhesive on the judgment or order, ex- cept at the CrownOffloe, where, as far as practicable a prBBCipe^ with the impressed stamp, should be used Impressed or adhesive Impressed or adhesive Where an adhe- sive stamp would da- mage the oopy, a prit- ctpe with the impressed stamp, should be used [And see post, Register of Jildgments, £c.] Fees. 383 Lis Pendens, see post, Register of Judgments, &c. Mandamus — Fees payable. Document to t)e Stamped. Character of Stamp to be used. i Lower 1 Scale. \£s.d. Higher Scale. £ s. d. Begulationsand ObaerTations. On sealing a writ of i 10 mandamus \ 1 10 Prmeipe left at time of issu- ing writ Impressed Fi'xcipes with the impressed stamp will be sold at the In- land Bevenue Office and by law sta- tioners. Miscellaneous- Kin a report of a private Bill in Pariiament On an allowance of bye- laws or table of fees On a fiat of a judge On signing an advertise- ment Upon a reference to a master of the Queen's Senchf Common Fleas, or Kxcheqner Divi- sions, or a district re- gistrar, for the pur- pose of any investiga- tion or inquiry, other than the taking of an account for which an- other fee is herein pro- vided, for every hour or part of an hour the master or registrar is occupied A deposit on account of fees before proceeding with such reference, or at any time during the conrse thereof, may be required, and a memo- randum thereof shall be delivered to the .party making the de- posit On taking aeknewledg- ment of a deed by a married woman On taking a recognisance or bond On taking bail, and taking same off the file and delivering On a commitment On ah application to pro- duce judges' notes On appointment of com- missioners under glebe exchange Fees payable. Lower Scale. £ s. d 5 10 5 10 10 10 10 2 5 5 Higher Scale. £ s. d. 5 10 5 10 10 10 10 2 6 5 10 Document to be Stamped. Beport Allowance Fiat Advertisement Certificate or other docu- ment used in giving the de- cision Acknowledg- ment Becognisance Commitment AppHcation Appointmen Character of Stamp to be used. Impressed Impressed Impressed or adhesive Impressed Impressed or adhesive Impressed Impressed or adhesive Impressed Regulations and Observations, Forms with the Impressed stamp will he sold at the Inland Ee- venue Office. 384 Fees. Miscellaneous — c yntinuei I. Fees payable. Document to he Stamped. Character of Stamp to be used. Lower Scale. £ s. d. Higher Scale. £ s. A. Begulatlons and On examining and sign- ing enrolments of de- crees and orders. On admission or re- admission of a solici- tor On a written request for information at the Chancery Pay OfBce For preparing a power of attorney at the Chancery Pay OfQce For transcript of an ac- count in the hooks at the Chancery Pay Ofilce, for each open- ing Any other proceeding, pleading, or document not hereinbefore speci- fied 3 5 2 6 3 2 3 5 2 6 3 2 Inrolment Admission Prmcipe ") Power 3 Tranaoilpt Document or priecipe Impressed or adhesive Impressed Impressed Impressed or adhesive Impressed or aidhesive Forms of admis- sion with the impressed stamp will he sold at the In- land Bevenne Ojace. These are to be Impressed if practicable where not filed in the ofBce. Notices-^ Lower Scale. M s. d. For a notice aa to stock tinder 0. XL VI. r. 4 (Rule 23 of the Rules of the Supreme Court, April, 1880 10 [See Chabgin'g Stock.] The last item is tinder the Order of 6th Aug., 1880. See also post, Third Party Notice. Oaths — Higher Scale. <£ s. d. 10 For taking an affidavit or an affirmation or attes- tation upon honour in lieu of an affidavit or a declaration, except for the puraose of receipt of mviaends from the Faymaater-Gtoneral, for each person maMng the same And in addition thereto, for each exhibit there- in referred to and re- quired to be marked, whether annexed or not Fees payable. Lower Scale. £ s. d. 1 10 Higher Scale. £ s. d. 10 Document to he Stamped. Affidavit or other docu- ment answer- ing thereto Character of Stamp to be used. Impressed or adhesive Stamp to be impressed or ad- hesive on exhibit if practic- able, but If not to be im- pressed orxprsedpe filed. Begulationsand Observations. Order, see swp., Judgment, &c. ; post. Petition. Payment in and out, see sup.. Miscellaneous. Fees. 385 Petition — Fees payable. Document to be Stamped. Character of Stamp to be used. • Lower Scale. * s. d. Higher Scale. £ s. d. Begulations sad Observations. For answering a petition for hearing in court, and Betting down For answering a non- attendable petition, not being a petition for an order of course On a matter of course order, on a petition of right On an order for a com- mission on a petition of right 5 5 10 10 10 10 10 10 Petition Petition Order Order Impressed or adhesive. Impressed or adhesive Impressed or adhesive Impressed Petition of Right- — Fees payable. Document to be Stamped. Gharacter of Stamp to be used. Lower Scale. £ s. A ffigher Scale. £ s. d. Begulations and Observations. On marking a copy of a petition of right for 10 6 Copy of peti- Impressed The copy' of .petition' to he written ba im- pressed paper or the docu- ment to be produced at the Inland Ee- venueOfBceto be stamped. And see sup.. Filing, Searing, Petition. Recognisance, see sup., Miscellaneons. Reference, see svp.. Miscellaneous, and Referee. Register of judgments, &c., and, lis pendens — Fees payable. Document to be Stamped. Character of Stamp to he used. - Lower Scale. £ s. d. Higher Scale. £ >. d. Begulations and Observations. For registering a judg- ment or lis pendms, although more than. one name may have to be registered For re-registering same For. a search for each name' For a certificate of entry of satisfaction For eertifloate of judg- ment for registration in Ireland or Scotland under the Judgments Extension Act, 1868, including affidavit 2 6 10 10 10 2 2 6 10 10 10 2 Memorandum of registry Memorandum of registry General form of BeaTChpnecipe Oertifloate Certificate Impressed Impressed Impressed Impressed Impressed or adhesive Forms with the Impressed stamp will be sold at the o££lce of the Begistrar of Jud^^euts, Common Pleas Divi- sion. C C 386 Fees. Register of Judgments, &c., and lit pendens — continued. • rees payable. n Lower Scale. Higher Scale. Document to be Stamped. Character of Stamp to be used. Begulationsand Observatians. £ s. d. * 5. d. On filing for registratton 7 7 Oertiacate Impressed or a certificate issned oat adhesive of courts of Dublin or Court of Session in Scotland under the same Act, although more than one name may have to he regis- tered under the same Act On every certificate of 10 10 Oertifloate Impressed or the entry of a satis- adhesive faction under the same Act For a search made in 10 10 Prsecipe Im pressed Formsofjria^, one or both of the with the im- registers of Irish and pressed stamp, Scotch judgments for will be sold at each name the Inland Be- venue OfBce, and by law stationers See the Order of Aug. 6th, 1880, post, Searches and Inspections. Report of Prvoate Bill, see sup.. Miscellaneous. Scheme, see sv/p., Filing. Sea/rches amd Inspections — Lower Scale. Higher Scale. £ s. d. £ t. d. On an application to search for an appearance or an affidavit, and inspecting the Bame ... 1 10 On an application to search an index, and inspect a pleading, decree, order, or other record, unless otherwise expressly provided for by any Act of Parliament or this order, and to inspect documents deposited for safe custody or pro- duction pursuant to an order, for each hour or part of an hour occupied ..." ... 0"2 6 2 6 Not exceeding on one day ... ... ... ... ... 10 10 The Schedule to the Order as to Court Fees, made on the 28th Oct., 1875, shall have effect as if there were inserted therein the following fees, namely : Lower Scale. Higher Scale. £ For an official certificate of the result of a search in one name in any register or index under the custody of the Clerk of Enrolments, the Registrar of BiUs of Sale, the Eegistrar of Certificates of Acknowledgments of Deeds by Married Women, or the Registrar of Judgments 5 For every additional name, if included in same certificate 2 For a duplicate copy of certificate, if not more than three folios ... 1 For every additional folio For a continuation search, if made within fourteen days of date of official certificate (the result to be indorsed on such certificate) 10 10 (O., 6th Aug., 1880.) Fees. 387 The fees on searches and inspections to be taken by means of impressed stamp* on a form which mil be issued at the Inland Revenue Office and sold there, and by law stationers : (Sched. Ord. 22nd April, 1876.) See also sitp. Begister of Judgments, &c. Special Case, see swp. Filing ; Searing. Svbm/ission, see sup. Filing. Subpoena — Fees payable. Docnmenttobe Stamped. Character of Stamp to be used. Lower Scale. £ s. d. Higher Scale. £ s. d. Begulationsand Observations. On sealing a writ of siA' pana not exceeding three persozis 2 6 5 « Prsseipe left at time of is- suing writ Impressed Prsecipe with the impressed stamp will be sold at the In- land Bevenue Office and by law B t a- tiouers. Summons — On sealing a summons to originate proceed- ings in the Chanceiy Division On sealing a duplicate thereof On sealing a copy of same for service On sealing or issuing any other summons, or warrant Fees payable. Lower Scfble. £ s. d. 5 10 1.0 2 Higher Scale. £ s. d. Docuiiieuttobe Stamped 10 Summons 5 5 3 Duplicate sum- mons Copy of sum- mons Summons Character of Stamp to be used. Impressed Impressed Impressed or adhesive Impressed or adhesive Begnlations and Observations. A form of sum- mons will be sold at the In- land Bevenue Office and by law s t a- tioners Taxation of Costs- For taxing a bill of costa where the amount allowed does not ex- ceed 82. Where the amoxmt ex- ceeds St., for every 21 allowed or a fraction thereof These fees, except where otherwise provided, shall be taken on sign- ing the certificate or on the allowance of the Fees payable. Lower Scale. £ s. a. 2 6 Higher Scale. £ t. d. 4 Docnmenttobe Stamped. « C 2 Character of Stamp t»be used. Stamp to be adhesive on bill of cost, but where a certiScate, allocatur, or prsecipe is used, the fee to be denoted by impressed stamps. Begulations and Observations. 388 Fees. Taxation of Costs — continued. bill of costs, as taxed, but the fees ^airbe due and payable if no ■ certificate. or allocatur is required on ' the amount' of the' bill as taxed, -or on the amount of- such part thereof as may be taxed, and .the solicitor or party smng in per- son shall in such case cause . the proper gtamps .(the amount • thereof- to be fixed by the pfflcer) to be im- pressed oiLor affixed to the bill of costs The taxing officer may require a deposit of stamps on account of fees before taxation not exceeding the fees on the full amooint of the costs as submitted for taxation, and \he officer or his (^exk on taking such < deposit Bhall.make a. memo- randum thereof of the bill of cpst? j For a certiflOfLte 'or allo- catur of the result, not . being a Judgment The 6t> Bulje oi Order v. of the Oiianeejy Consolidated | Buies, 1874, shall continue^in force and be acted upon in cases to-'v^hich it is applicable* Fees payable. Lower Scale. £ s. d. Higher Soflje;- £ 8. d. BoovnientBtobe ^tamped. Certificate allocatur Character of Stamp to 1)6 tised. Impressed Begulationsand ObserTatlonB. [* See.0osTS,iy.,8(/).] Third Pa/rty Notice — Fees payable. Pocnment tobe .gtampedi, ., Character of Stomp to be nsed. - - • Lower' Scale. . £ s. d. Higher Scale. £ I. d. Begulationsand Obserrationa. On sealing a notice. for service under 0. XVI., r.l8 2 6 2 6 Notice Impressed or - kdhtove. FonnB with the impressed Stomp will be ' sold at the In- land Bevenue Office and By law sta- tioners. Warrant, see sup. ^ufnmons. Warrant of Aitorney,' see sii/p. FUi/ng. Writ of Exeeution, see svp. Filing. Fees — FoKo. 389 Writ of Summons — . Fees payable. Docomenttobe Stamped. Character of Stamp to be used. Lower Scale. £ s. d. Higher Scale. £ «. d. Begulations and ObseWations. On sealing a writ of BDimnona for com- mencement of an ac- tion On sealing a concurrent renewed, or amended writ of summons for commencement of an action S 2 6 10 2 6 Writ of sum- mons Writ of sum- mons Impressed or adhesive. Impressed or otherwise Forms of writ with the impressed stamp will be sold at the In- land Bevenue OfQce and by law sta- tioners. Writs— Fees payable. Document to be , Stamped. Character of Stamp to be used. Lower Scale, £ s. d. Higher Scale. £ s d. Begulations and Observations. On sealing every other writ [ti^taii a writ of sammons, mandamus, or gubpcBTia'] 5 10 Pnecipe left at time of issu- , ingwrit Impressed or adhesive. Prseeipes with the impressed stamp will be sold at the In- land Eevenue Office and by law s t a - tioiters, FIERI FACIAS. Okdinaet, and De bonis Ecclesiasticis. [See Execution.] [See Appeaeancb Fl RM. DiSCOVEBT; WbIT OF SUMMONS.] FOLIO. I. AS TO PLEADINGS. [Polios are to contain] seventy-two words ea,ch (every figure being connted as one word) : (O. XIX., r. 5.) n. AS TO COSTS AND FEES. A folio is to comprise seventy -two words, every figure comprised in a column being counted as one word: (Add. R., Aug. 1876, Sp. AH., r. 12.) This order is repeated in rale T of the order as to court fees of Oct. 28th, 1875. 390 Foreclosure. FORECLOSURE. I. JURISDICTION. n. PAETIES. 1. Genebai. Bttle. 2. MOETQAaEES AXD THOSE CLAIMINa UNDER TSSJU. (a) Mortgagees. (6) Assignees. (c) Cestuis que trustent. (d) Devisees. (e) Executors a/nd AdmAmstrators. (f) Beir. (g) Sub-Mortgagees. (h) Trustees. 3. Persons interested in Equity op 'Redemption. (a) Mortgagors. (b) Assignees. (c) Banhruptcy Trustees. (d) Devisees. (e) Executors a/nd Ad/mvmstrators. If) Beirs. (g) Incumbrancers. (1) Prior. (2) Subsequent. (h) Tenamt m Taxi, S[c. (i) Trustees. ni. INDOESEMENT OP WKIT. IV. OBDEE FOB ACCOUNT "WHEN CLAIMED [see Account.] V. DEFAULT OP APPEARANCE. VI. PROCEEDINGS GENERALLY SUBSEQUENT TO WEIT. vu. PLEADING. vm. DEFAULT OP PLEADING. rx. FOEECLOSUEE OEDEE BEFOEE HEARING. X. SALE INSTEAD OF FOEECLOSUEE. 1. Power to Order. 2. When Application Made. 3. Order. 4. Deposit. 5. Sale. XI. JUDGMENT FOE FOEECLOSUEE, xn. TAKING ACCOUNTS. XIII. CHIRP CLEEK'S CEETIPICATE. XiV. PAYMENT. 1. Attending to Eeceive. 2. Enlaroing Time pob. 3. Default in. XV. OEDEE ABSOLUTE. . XVI. SUCCESSIVE FOEECLOSUEES. XVII. INFANT SHOWING CAUSE. XVIII. OPENING FOEECLOSUEE. XIX. COSTS. I. JURISDICTION. Causes and matters for the foreclosure of mortgages are assigned to the Chancery Division : (J. A. 1873, s. 34.) Foreclosure. 391 A mortgagee by deposit of deeds whether with or without an agreement to execute a legal mortgage, is entitled to foreclosure : {Price v. Bury, L. C. & L. J. J. 26th Jan. 1854 ; James v. James, L. Kep. 16 Eq. 153; Backhouse v. Charlton, L. Rep. 8 Ch. Div. 444 ; 26 "W. R. 504 ; Fisher, 510.) If the deposit of deeds be accompanied by an agreement to execute a legal mortgage, the mortgagee is entitled either to foreclosure or sale : {Yorlc Union Banking Company v. Artley, L. Rep. 11 Ch. Div. 205 ; 27 W. R. 704.) A pledgee of personal chattels, as Canada railway bonds, is not entitled to foreclosure : (Garter v. Wake, L. Rep. 8 Ch. Div. 605.) Foreclosure cannot be ordered against the Crown : (Fisher, 518.) Orders for the sale both of freeholds and leaseholds have been made latterly, it being understood that the Crown was not pledged to make any grant to a purchaser ; or liberty may be given to apply in chambers for an order for sale : (Fisher, 518 ; Bartleti v. Bees, L. Rep. 12 Bq. 395 ; 25 L. T. Rep. N. S. 373; 40 L. J. 599, Ch.) n. PARTIES. 1. Genbkal Ritle. As a general rule aU persons who have an interest either in the right of redemption or in the security must be joined as parties : (Fisher on Mortgages, 3rd edit., 883.) 2. Mortgagees AND Those Claiming xtndee Them. (o) Mortgagees. A person interested in. part only of a sum due on mortgage, cannot sue for foreclosure of a corresponding part of the estate : (Fisher, 505.) One of several mortgagees may bring an action to foreclose, making the other co-defendants if they are unwUling to be plaintiffs, or have done some act precluding them from being plaintiffs : (Luke v. South Kensington Hotel Company, L. Rep. 11 Oh. Div. 121 ; 40 L. T. Rep. BT. S. 638 ; 48 L. J. 361, Ch. ; 27 W. R. 514.) (6) Assignees. An assignee of the mortgagee's whole interest, absolutely, if the legal estate has passed to him, may foreclose without bringing in the mort- gagee or any prior assignee : (Dan. 175.) The Master of the Rolls has held that if a party has assigned his interest after judgment, the assignee may be made a party even after the order for foreclosure absolute : [Camphell v. Holyland, L. Rep. 7 Ch. Div. 166 ; 38 L. T. Rep. N. S. 128 ; 47 L. J. 145, Ch. ; 26 W. R. 109.) (c) Cestuis que trustent. Where the trustees under the mortgagee's wiU have disclaimed, the beneficiaries must be parties : (Dan. 227.) [d) Devisees. If the legal estate has been devised the devisee is a necessary party and the heir is not : (Dan. 175.) (e) Hxecutors and Administrators. If the heir of the mortgagee commences the action he must make the personal representative a party : (Dan. 195.) (/) Eeir. The heir is a necessary party where nothing has been done to affect the descent of the legal estate to him : (Dan. 175.) {g) Sub-Mortgagees. All the mortgagees must be made parties : (Dan. 176.) 392 Foreclosure. (h) Trustee. Where a mortgage has been made to a trustee, he is a necessary party : (Dan. 174.) A trustee of the equity of redemption, who is also mortgagee of the property, will not be allowed to foreclose : [Tennant t. Trenchard, L. Rep. 4 Ch. App. 537.) 3. Pbesons inteeestbd in Eqtjitt op Redemption. (a) Mortgagors. When a mortgagpr has become bankrupt, he need not be made a party, although his trustee has dischiimed : (Dan. 191.) It is stated in Fisher on Mortgages that the bankrupt may be properly joined because the right of redemption becomes re-vested in him upon the disclaimer of the trustee, and that if the disclaimer be after the com- mencement of the action, the mortgagee will be properly added as a party (Fisher, 886), But under sect. 28 of the Bankruptcy Act, 1869, on disclauner, the property, if leasehold, is deemed to be surrendered; and if it consists of shares in a company, they are forfeited. If it consists of other property it reverts to the person entitled on the determination of the bankrupt's interest. If there is no such person in existence no estate or interest remains in the bankrupt, and Jessel, M.R., has intimated that a fee-simple estate reverts to the Grown : {Be Mercer and Moore, L. Rep. 14 Ch. Div. 287 ; 42 L. T. Rep. N. S. 3ll ; 49 L. J. 201, Ch.) _ Where the mortgagors are a company, and afterwards go into liquida- tion, leave to continue the action will be given : {Re David Lloyd and Co., L. Rep. 6 Ch. Div. 339 ; 37 L. T. Rep. N. S. 83.) The mere fact of a winding-up order having been made, does not prevent a mortgagee from bringing an action to realise his security: {Be Longdm- dale Cotton Spwwmg Gonvpamy, L. Rep. 8 Ch. Div. 150 ; 38 L. T. Rep. N. S. 776.) (&) Assignees. Where the estate has been sold or charged subsequently to the date of the plaintifE's claim, whether by legal instrument or agreement, and whether as to the whole or only as to partial interests, the persons entitled to the benefit of the assignment or charge must be made parties : (Dan. 240.) Incumbrancers and purchasers becoming such after the writ has been served, and the action registered as a lis pendens, wiU be bound by the judgment, and need not be made parties to the suit, whether the phuntiff have notice of them or not : (Dan. 242 ; Fisher, 917-919.) But they have been made parties, even after judgment for foreclosure absolute : {Camphell v. Holyland, cited svp. 2 (b). (c) Bankruptcy Trustees. The mortgagee may sue for foreclosure in the Chancery Division, not- withstanding the mortgagor's bankruptcy, maJdng the trustee defendant {White V. Sinvmons, L. Rep. 6 Ch. App. 556 ; Waddell v. Tollman, L. Rep. 9 Ch. Div. 212 ; 38 L. T. Rep. N. S. 910 ; 26 W. R. 802) ; but the Court of Bankruptcy may restrain the action by injunction {Hx parte Bitton, Be Woods, L. Rep. 1 Ch. Div. 557 ; 34 L. T. Rep. N. S. 109 ; 45 L. J. 87, Bk. ; 24 W. R. 289), though this wiU not be done except in a very strong case : {Ex pa/rte Pannell, Be England, L. Rep. 6 Oh. Div. 335 ; 37 L. T. R^ N. S. 460; 47 L. J. 21, Bk.; 26 W. R. 194; Ex parte Hirst, Be Wherly, L. Rep. 11 Ch. Div. 278 ; 27 W. R. 788; Ex parte Bayly, Be Sart, W. N. 1880, p. 144.) {d) Devisees. The devisee, whether in trust or beneficially, of the mortgagor is a Foreclosure 393 necessaxy party in respect of so much of the equity of redemption as has been devised to him : (Fisher, 894.) (e) Executors and Administrators. The mortgagor's executor or administrator is a necessary party to an action to foreclose a mortgage of a subsisting term or other chattel interest, but not of a mortgage by devise or grant of a 'freehold estate : (Dan. 246 ; Fisher, 896.) The mere fact that an administration action is pending will not prevent the mortgagee from suing to foreclose : {Crowle v. Bussell, L. Rep. 4 C. P. Div. 186; 39 L. T. Rep. N. S. 320; 48 L. J. 76, 0. P.; 27 W. R. 84.) (f)-Heir. The mortgagor's heir is a necessary party in respect of what he takes by descent : (Fisher, 894 ; Dan. 245.) He is the proper defendant when the land is freehold, whether the mortgage was by demise or grant : (Fisher, 896 ; Dan. 245.) {g) Incumbrancers. (1) Prior. A prior incumbrancer is not a necessary party in an action by a second mortgagee to foreclose the mortgagor and a third mortgagee : (Dan. 190, 241.) If the first mortgagee is made a party, the plaintiff must ofEer to re- deem him : (Dan. 191, citing Gordon v. Horsfall, 6 Moore 393.) A third mortgagee buying in the first, need not make the second mort- gagee a party to an action to foreclose the mortgagor : (Dan. 191.) When the land is in a registered county, and the judgment has not been registered, the judgment creditor need not be made a party : (Fisher 892-3.) (2) Subsequent. All persons who have incumbrances upon the estates, posterior in point of time to the plaintiff's mortgage, must be made defendants : (Dan. 239.) And all subsequent judgment creditors must be made parties, where under the statutes their judgments give them a lien on the land : (See Fisher, 892 ; 1.& 2 Vict. c. 110; 23 & 24 Vict. c. 38; 27 & 28 Vict. c. 112.) If some only of the subsequent incumbrancers are brought before the court, those made parties may be foreclosed, but the other incumbrancers will not be foreclosed, although the mortgagees at the date of the judg- ment had no notice of their existence : (Dan. 240 ; Fisher, 893.) If, pending the action, the plaintiff received notice of a subsequent in- cumbrance, he must make the owner thereof a party to bind his rights : (Fisher, 893.) But where the general rule cannot be acted upon for want of notice to the plaintiff of the subsequent incumbrances, if the plaintiff obtain his judgment without having received notice, the judgment will bind the subsequent incumbrancer as to the accounts, if taken bond fide, but not his right of redemption. Collusion or other fraud wiU give the subse- quent incumbrancer a right to open the accounts, upon his stating par- ticular errors, but not to unravel them upon general charges of fraud and collusion, if denied. And the fraudulent or vexatious conduct of the mort- gagor, if he should create subsequent incumbrances with the view of shielding himself from foreclosure, will excuse the mortgagee from making the owners of such securities parties : (Fisher, 893-4.) 394 Foreclosure. {h) Tenant in tail, &c. Where the equity of redemption is the subject of an entail, the first tenant in tail must be made a party, but no subsequent remaindermen are necessary parties : (Dan. 230, 231.) The presence of an infant tenant in tail will bind the inheritance as if he were an adult. If it is doubtful whether a particular person has an estate tail or not, the person who has the first undoubted vested estate of inheritance ought to be a party, and where the first tenant in tail is a lunatic, the remainder- man is a proper party : (Dan. 231.) The intermediate remaindermen for life must be parties, and the same rule applies where the intermediate estate is contingent or executory, if the person to take is ascertained. If -he is not ascertained, it is sufficient if the tmistees (if any) to support contingent remainders, and the person in esse entitled to the first vested estate of inheritance are parties : (Dan. 231.) Executory devises to persons not in being are bound by judgment against a vested estate of inheritance, but a person claiming under Emitations by way of executory devise, not subject to any preceding vested estate of inheritance by which it may be defeated, must be a party : (Dan. 231.) If by the death, pending the action of the owner of the first estate of inheritance, that interest be determined, the owner of the next estate of inheritance; and of the interests prior to . his, must be joined : (Fisher, 889.) Owners of new interests, acquired by the determination of a contingency, and not subject to destruction by a prior vested estate of inheritance, must be added as parties : (Jd.) (i) Trustees. Trustees in whom the mortgaged estate is vested, who as executors or otherwise are in possession of funds to redeem, may sufficiently represent their cestuis que trustent ; but if this is not the case the cestuis que trustent or some of them ought to be made parties : (Dan. 226.) in. INDORSEMENT OF WRIT. In all cases of ordinary account .... where the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be indorsed with a claim that such account be taken ; (O. III., r. 8.) The following form may be used : The plamtifi's claim is to have aq acconst taken of what is due to him for principal, interest, and costs on a mortgage dated the day of made between [or hy deposit of title deeds'], and that the mortgage may- be enforced by foreclosure or sale. (Rules 1875, App. A. p. 2,s. 1.) IV. ORDER FOR ACOODTSTT WHEN" CLAIMED. [See AccoTiNT.] Y. DEFAULT OF APPEARANCE. Where a defendant did not enter an appearance, and the statement of claim was filed against him, an order for immediate foreclosure absolute was directed, but before it was drawn up, an order nisi in the usual form was substituted : {Patey v. Flint, W. N. 1879, pp. 86, 100 ; 40 L. T. Rep. N. S. 651 ; 48 L. J. 691 Ch. ; 27 W. R. 529, 595 ; and oomp. Fisher, 1103.) VI. PROCEEDINGS GENERALLY SUBSEQUENT TO WRIT. The proceedings are conducted in the usual way down to the hearing : (Ayck. 263.) Foreclosure. 395 YII. PLEADING. Forms of pleading are given in Appendix C. 14 to the Rules of 1875. An application to amend so as to give the plaintiff the benefit of con- solidation under a transfer executed after writ issued, was refused: {Maithews v. Antrohus, W. N. 1879, p. 207 ; 49 L. J. 80, Oh.) VIII. DEFAULT OF PLEADING. Several cases are reported in which judgment for foreclosure has been given on motion for judgment in default of delivery of a defence. The point as to whether absolute judgment might be given at once was apparently raised in none of them : (Hate v. SnelUng, W. N. 1876, p. 77 ; Peajrce v. Spickett, Id. 109 ; Bymond v. Croft, L. Rep. 3 Oh. Div. 512.) In Bymond v. Croft, sup., the usual order for payment within six months was made : (see also sup. Judgment.) IX. FORECLOSURE ORDER BEFORE KEARING. Where any .... suit [is] brought .... to compel the defendant or defendants .... (having or claiming a right to redeem) to pay .... the principal money and interest due .... or the principal money and interest .... together with any sum or sums of money Tdue on any incumbrance, or specially charged or chargeable on the equity of redemp- tion .... and in defaiut of payment thereof to foreclosure . ., . . [the court] upon appKcation .... by the defendant or defendants .... having a right to redeem .... and upon his or their admitting the right and title of the plaintifE .... m.ay and shall at any time or times before such suit or cause [is] brought to a hearing, make such order or decree as [it] might or could have made in case such suit or cause had then been regularly brought to a hearing : (7 Geo. 2, c. 20, s. 2.) SThe Act does] not extend to any case where the right of redemption controverted or questioned by or between different defendants in the same cause or suit, [or] prejudice .... any subsequent mortgagee or mortgagees, or subsequent incumbrancers : (Id., s. 3.) The right to redeem must be clear beyond doubt : (Fisher, 341.) Where the foreclosure action was commenced in respect of sixteen mortgages, and afterwards the plaintiff transferred the mortgages to persons who were plaintiffs in other actions for foreclosure of other mort- gages given by defendants, to enable such plaintiffs to consolidate, and an application by them to amend the action by stating the transfer was ffismissed, an order was made under the statute : [Matthews v. Antrohus, W. N. 1879, p. 207 ; 49 L. J. 80, Ch.) The statute does not apply where another demand is set up which is independent of the foreclosure, or where a sale is claimed : (Fisher, 341.) But where a sale is prayed, the court wiU direct an account to be ... . taken under its general powers : [Id., and see Account.) _ All the defendants who have a right to redeem must join in the applica- tion and admit the plaintiff's title : (Fisher, 339.) When one of the defendants is an infant, the order cannot be made : (Fisher, 340.) The appUoation is by petition or motion on notice : (Fisher, 339.) The amount of principal stated in the writ cannot be disputed, nor can evidence be admitted that payments have been made in reduction of principal, notwithstanding it is so stated in the petition :_ {Id.) The order directs an account of the principal and interest due, and taxation of the plaintiff's costs, and that, on payment within six months of the amount found due, the plaintifE do reconvey ; but in default of pay- ment, that the defendant be foreclosed, with the usual directions : {Id.) 396 Foreclosure. Although the statute has not been strictly complied with, if the money has been paid into court, or to the plaintiff, the action will not be allowed to proceed : {Bowrton v. WilUa/ms, L. Kep. 5 Ch. App. 655.) X. SALE INSTEAD OP FORECLOSURE. 1. POWEB TO OeDBE. It shall be lawful for the court in any suit for the foreclosure of the equity of. redemption in any mortgaged property, upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or any person claiming under them respectively, to direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the court may think fit to direct, and if the court shall so think fit, without previously determining the priorities of incumbrances, or giving the usual or any time to redeem ; provided that if such request shall be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the court sh^ not direct any such sale, without the consent of the mortgagee' or the persons claiming under him, unless the party making such request shall deposit in court a reasonable sum of money, to be fixed by the court, for the pur- pose of securing the performance of such terms as the court may thiak fit to impose on the party making such request : (15 & 16 Vict. c. 86, s. 48.) A sale will not be ordered, unless there is such complication that the common decree cannot be conveniently worked {Hiorns v. Holtom, 16 Jur. 1077) ; or unless it is manifestly for the benefit of all parties (B/arst V. Surst, 16 Beav. 372 ; 22 L. J. 538, Oh.) ; or for other special reasons, but not as of course : (Fisher, 1078.) A sale may be ordered though the mortgagor or some of the incum- brancers do not consent : (Dan. 1151.) It was refused where the plaintiff, a judgment creditor, insisted on a foreclosure : [Id.) The court refuses to make the order where it cannot go on and com- plete the sale in every necessary way, giving possession and insuring that the title deeds shall be handed over : (per Cairns, L.O. Heath v. Crealock, L. Rep. 10 Oh. App. 22 ; 31 L. T. Rep. N. S. 650 ; 44 L. J. 157, Ch.) No sale can be made of a mortgaged estate as against a mortgagee with a paramount title without his express consent, except in foreclosure suits, as provided by the statute ; the sale can only be subjept to his mortgage. The course is to order a sale, free from the mortgagee's security if he concurs, but subject to it if he does not ; and if he be a party, he will be required at once to consent or refuse : (Fisher, 519.) Sale may be ordered where it is the proper remedy, though foreclosure only be claimed, and though there be no right to foreclosure : (Pisher, 519.) Under the Confirmation of Sales Act a sale may be ordered, notwith- standing an action for foreclosure has been commenced : (see Conpiema- TiON OF Sales, &c.) 2. When Application Made. The Master of the RoUs refused in an ordinary foreclosure action to direct a sale on an interloctitonr application : (WaynY. Lewis, 1 Drew. 487 ; London and County Banking Company v. Dover, L. Rep. 11 Oh. Div; 204; 48 L. J. 336, Oh. ; 27 W. R. 749; but see Davis v. Ashwin, 47 L. J. 70, Oh. ; 26 W. R. 139.) Where all the parties wished to sell, an order was granted on an inter- locutory application, that the sale should be conducted by the parties Foreclosure. 397 mdependently of the control of the court, and the money paid into court : {Behh V. Horton, 19 "W. R. 267.) The sale should be asked for at the hearing ; if judgment has been given for foreclosure, it cannot afterwards be ordered unless by consent : (Ayck. 263; Dan. 1151.) 3. Ordee. The usual course is for the order to direct a sale, in the event of default being made in payment of what is found due by the chief clerk's certificate, within a limited time (usually sis months) from the date of the certificate : (Dan. 1152.) By consent, or where it is for the benefit of all parties, the sale will be directed to take place within a shorter period, or even immediately : {Id.,. Fisher, 1079.) 4. Deposit. If the sale is directed at the request of a subsequent mortgagee, or of the mortgagor, the. court cannot, except by consent, dispense with a deposit : (Dan. 1152.) The amount of the deposit (which is fixed in chambers if the parties do not agree) is in the discretion of the court, and is generally fixed with reference to the probable expenses of the sale : {Id., Fisher, 1079.) In one case it was made sufficient to indemnify a puisne mortgagee, who; had bought in several incumbrances : {Lasleti v. Gliffe, 2 Sin. & G. ;278.) Where the sale is at the request of the mortgagor or subsequent in- cumbrancer, a reserved price is fixed to protect the interest of the first mortgagee : (Dan. 1152 ; Fisher, 1079.) 5. Sale. The sale is made with the approbation of the judge at chambers [siee Peopebtt], and the judgment may direct the distribution of the purchase money on application at chambers, without further considera- tion : (Ayck. 263.) The conduct of the sale will be given to the person by whom it may be most conveniently efPected, as in one case to the first mortgagee, thought not plaintiff, because he had the deeds : {Hewitt v. Nanson. 28 L. J. 49, Oh. ; 7 W. R. 5.) The sale is effected in the same manner as other sales by the court : (Dan. 1139.) XI. JUDGMENT FOR FORECLOSURE. The ordiaary form of judgment directs an account to be taken of principal, interest, and costs to |)e taxed, that upon payment of the amount certified within six calendar months from the date of the chief clerk's certificate at the time and place thereby' appointed, the plaintiff shall recover and deliver up, on oath, the deeds, &c., and that in default of payment the defendant shall be absolutely debarred and foreclosed from all right and equity of redemption to the mortgaged premises : (Seton, 1035.) „ , In a foreclosure action, where both forms of relief are expressly claimed, an order for personal payment may be combined with an order for foreclosure : {Bymond v. Groft, L. Rep. 3 Ch. Div. 512 ; Gibbon v. WalTcer, 38 L. T. Rep. N. S. 217 ; Greenough v. Littler, W. N. 1880, p. 16 ; 42L. T. Rep.N. S. 144; 28W. R. 318.) For another variation in the order, see Lees v. Fisher (W. JN . 1880, p. 12.) As to the order where the mortgagee has contracted to sell his interest, see Qreenough v. Littler, swp. 398 Foreclosure. In some cases an inquiry is given as to the costs, charges, and expenses properly or " justly " incurred by the mortgagee in respect of his mort- gage security, not being costs of suit : (Seton, 1072 ; Bees v. Meiro- politan Boa/rd, L. Rep. 4 Ch. Div. 372 ; 42 L. T. Rep. N. S. 685 ; 49 L. J. 620, Ch. ; 28 W. R. 614.) XII. TAKING ACOOTJNTS. On the return of the summons to proceed on the judgment [see Account] the mortgagee is directed to bring in evidence of the amounts due to him ; and where he has been in possession, and the judgment so directs, an account of rents, and for expenditure in repairs and lasting improvements : (Dan. 1138-9.) The inquiries and account are presented in chambers in the usual way : (See AccoxJNTS, Ohambebs.) The plaintiff's costs of suit are taxed, and any other costs claimed by Tiim may be sent by the chief clerk to be moderated by the taxing officer : (Dan. 1139.) Xin. CHIEF CLERK'S CERTIPICATB. The chief clerk makes his certificate of the amount due, and thereby appoints a time aild pla«e for payment of the amount due to the mort- gagee : (Dan. 1139, Ayck. 263.) XIV. PAYMENT. 1. Attending to Rbcbite. At the time appointed the mortgagee, or some person duly appointed by power of attorney, must attend to receive the money, and the mort- gagor to redeem the property : (Dan. 858.) 2. Enlaeging Time. On a proper case being made out, the security being sufficient, the court may from time to time enlarge the time for payment : (Edwards v. Ciinliffe, 1 Madd, 287.) The order is made on summons or on motion with notice ; and is usually on condition that the interest and costs already reported due [and the costs of the motion] be paid, and of a further a,ccount being directed of subsequent interest and costs. "Where [the mortgagee, by mistake, omitted to attend at the time and place appointed for payment, a new time and place were appointed. In such case the mortgagee is not entitled to subsequeht interest : [Hughes V. Williams, 1 Kay, App. 4.) The time is also enlarged by the death of one of several mortgagees entitled as on a joint account where payment was directed to be made to them aU : (Fisher, 1056.) If a mortgagee receive rents after the certificate and before the day appointed for payment, the judgment for foreclosure will not be made absolute without a further account being taken, and a new day will be fixed, at chambers, for payment : (Ayck. 264.) If the rents are received after the day appointed, the judgment is made absolute without a further account : (Id.) A foreclosure is opened where the plaintiff realises collateral securities : (Seton, 1088.) [And see post, XVIII.] 3. Defattlt in. If the money is not paid at the time appointed, the plaintiff is entitled to an order confirming the foreclosure : (Dan. 858, Ayck. 264.) Foreclosure. 399 XV. ORDER ABSOLUTE. The order is obtained on motion of course, supported by an affidavit of due attendance and of nonpayment. The plaintiff must make an affidavit as to nonpayment, whether he attend personally or not : (Dan. 858-9.) If the mortgagor does not attend, it is unnecessary to prove that the mortgagee's agent had a power of attorney with him {Cox v. Watson, L. Rep. 7Clh. Div. 196), but a power of attorney must have been in existence, and an affidavit of such existence must be produced : (Hart v. Hawthorne, 42L. T. Rep. N. S. 79.) XVI. SUCCESSIVE FORECLOSURES. If the judgment provides for successive foreclosures, after the first fore- closure a summons to proceed further is taken out and served, and an account is then taken of what is due for principal, interest, and costs to the next person, and so on until aU directions are exhausted : (Dan. 1139.) XVn. INEANT SHOWING CAUSE. The judgment formerly reserved to an infant a day to show cause against the decree after coming of age, not by unravelling accounts or redeeming, but only by showing error in the decree : [Mallack v. Galton, 3 P. W. 352 ; Fisher, 1084.) As to whether the right still exists, see Fisher, 1084-7 ; Newbury v. Martin, 15 Jur. 166. Where the estate of the mortgagor had been devised in trust for sale, and, through the trustees having disclaimed, had become vested in an infant, who was also one of the parties beneficially entitled, the decree nisi directed that in case the mortgagees were not redeemed within six months the infant should be a trustee, and that the executrix should con- vey the estate to the mortgagees on his behalf : {Foster v. ParJcer, L. Rep. 8 Oh. Div. 147.) XVni. OPENING FORECLOSURE. Where an order for final foreclosure has been made it can only be set aside either upon the ground of error apparent upon the face of it, upon the ground of new matter subsequently discovered, as accident having prevented payment, or upon the ground of actual fraud, that is such that there is on the part of the person chargeable with it the malus animus putting itself in motion and acting in order to take an undue advantage of some other person for the purpose of actually and knowingly defraud- ing him : {Patch v. Ward, L. Rep. 3 Ch. App. 203 ; 18 L. T. Rep. N. S. 134.) According to Jessel, M.R., an order for foreclosure according to the practice of the Court of Chancery, was never really absolute, and cannot be so no^ ; and the Court has at any time a discretion to allow the mort- gagor to redeem, without requiring special circumstances to be shown : (Campbell v. Holyland, cited swp. II. 1 (6.) XIX. COSTS. The mortgagee is generally entitled to be repaid such of the costs as originally fall upon himself, and they are added to the amount due upon his security and, with the principal and interest, form part of a single debt, and are all payable in the same priority : (Fisher, 1000) ; and see Costs ni. 1 (6). Even before the Judicature Acts the Court could deprive him of his costs, and also make him pay costs, but did so with reluc- tance : (Fisher, 1002.) 400 Foreclosure — Foreign Law. The mortgagee is made to pay the costs when he has been guilty of fross misconduct or oppression, or where, even without improper motives e has caused expenses to be incurred which cannot be justly thrown on the mortgagor, as where the mortgagee resists any jnst claim to redeem : (Fisher, 1003 et seq. ; and see Seton, 1060 et ,seq.) But he may be allowed the ordinary costs of redemption : {Id.) FOREIGN LAW. I. ASCEETAINING BT OR IN AID OF COTJETS WITHIN QUEEN'S DOMINIONS. 1. Intekpbbtation. 2. DiBBOTJNG Case to be Pkepaeed. 3. EEMiTTiifG Case and Questions to othee Cotjbt. 4. Petition fob Opinion. 5. How Opinion given. 6. Ceetipied Copt of Opinion. 7. How Opinion applied. 8. Ebviewing Opinion in House op Lobds. II. ASCERTAINING BT OE IN AID OF FOEEIGN COUETS. 1. Inteepbetation. 2. DiEEOTiNo Case to be Peepaeed. 3. Ebmittino Case and Questions to Foeeiqn Courts. 4. Ceetipied Copt to be Eecoed. 5. LoDOiNO Copt, Opinion, and Notice op Motion. 6. Applying Opinion. 7. Sending Case back. in. STATING LAW IN AID OF FOEEIGN COUETS. 1. Inteepbetation [see swp. II., 1.] 2. Petition. 3. Opinion. 4. Copt op Opinion. I. ASCERTAINING BT OB, IN AH) OF COITRTS WITHIN QUEEN'S DOMINIONS. 1. Intekpeetation. In the construction of [the] Act, the word "action" shall include every judicial proceeding instituted in any court, civil, criminal, or ecclesiastical ; and the words " Superior Courts " shall include, in Flngland [the Supreme Court of Judicature], in Scotland, the High Court of Justiciary, and the Court of Session acting by either of its divisions ; in Ireland [the Supreme Court of Judicature] ; and in any other part of Her Majesty's dominions, the Superior Courts of Law or Equity therein : (22 & 23 Yict. c. 63, s. 6.) 2. DiEECTiNG Case to be Peepabed. If in any action depending in any covrt within Her Majesty's dominions, it shall be the opinion of such court that it is necessary or expedient for the proper disposal of such action to ascertain the law applicable to the facts of the Case, as administered in any other part of Her Majesty's dominions, on any, point on which the law of such other part of Her Majesty's dominions is different from that in which the court is situate, it shall be coijipetent to the court in which such action may depend to direct a case to be prepared, setting forth the facts, as these may be ascertained by verdict of a jury or other mode competent, or may be agreed upon by the parties, or settled by such person or persons as may Foreign Law. 401 have been appointed by the court for that purpose in the event of the parties not agreeing : (Id., a. 1). Cases have been directed for the opinion of the Court of Session in Scotland, and of the High Court at Fort "William, Bengal : (Dan. 1012.) 3. Remitting Case and Questions to othek Oouets. Upon such case being approved of by such court or a judge thereof, they shall settle the questions of law arisiug out of the same on which they desire to have the opinion of another court, and shall pronounce an order remitting the same, together with the case, to the court ia such other part of Her Majesty's dominions, being one of the Superior Courts thereof, whose opinion is desired upon the law administered by them as applicable to the facts set forth in such case, and desiring them to pronounce their opinion on the questions submitted to them in the terms of the Act : (22 & 23 Vict. c. 63, s. 1.) A certified copy of the order is left at chambers, and a summons to proceed thereon served : (Dan. 1013.) Upon the return of the summons, the draft case is directed to be prepared and left, and the summons is adjourned for the purpose : {Id.) The case and questions are settled at chambers with or without the attendance of the judge : {Id.) A fair copy of the case is made, and identified by the signature of the chief clerk to a memorandum at the foot : (Id.) The case, with the original or an office copy order, is usually sent by the person having the conduct of the inquiry to a practitioner of the court whose opinion is asked : (Id.) 4. Petition foe Opinion. It shall be competent to any of the parties to the action to present a petition to the court whose opinion is to be obtained, praying such last- mentioned court to hear parties or their counsel, and to pronounce their opinion thereon in terms of [the] Act, or to pronounce their opinion without hearing parties or counsel : (22 & 23 Vict. c. 63, s. 1.) 6. How Opinion given. The court to which such petition shall be presented shall, if they think fit, appoint an early day for hearing parties or their counsel on such case, and shall thereafter pronounce their opinion upon the questions of law, aa administered by them, which are submitted to them by the court, and in order to their pronouncing such opinion they shall be entitled to take such further procedure thereupon as to them shall seem proper : (Id.) 6. Ceetifibd Copt of Opinion. Upon such opinion being pronounced, a copy thereof, certified by an officer of such court, shall be given to each of the parties to the action by whom the same shall be required, and shall be deemed and held to contain a correct record of such opinion : (Id., a. 2.) 7. How Opinion applied. It shall be competent to any of the parties to the action, after having obtained such certified copy of such opinion, to lodge the same with an officer of the court in which the action may be depending, who may have the official charge thereof, together with a notice of motion, setting forth that the party wiU, on a certain day named in such notice, move the court to apply the opinion contained in such certified copy thereof to the facts ■ set forth in the case : (Id., a. 3.) The certified copy is filed in the Central Office: (Dan. 1013; J. A. 1879.) An office copy of the opinion is taken before moving : (Dan. 1013.) D D 402 Foreign Law. The said court shall thereupon apply such opinion to such facts, in the same manner as if the same had been pronounced by such court itself upon a case reserved for opinion of the court, or upon special verdict of a jury ; or the said last-mentioned court shall, if it think fit, when the said opinion has been obtained before trial, order such opinion to be submitted to the jury with the Other facts of the case as evidence, or conclusive evidence as the court may think fit, of the foreign law therein stated, and the said opinion shaU be submitted to the jury : (22 & 23 Vict. c. 63, s. 3.) 8. Bevibwing Opinion in House op Loeds. In the event of an appeal .... to the House of Lords in any such action, it shall be competent to bring under the review of .... the House of Lords the opinion pronouncfed as aforesaid by any court whose judgments are reviewable .... by the House of Lords, and .... that House may .... adopt or reject such opinion of any court whose judg- ments are ... . reviewable by [it] as the same shall appear to [it] to be well founded or not in law : {Id., s. 4.) II. ASCERTAINING BT OR DT AID OP FOREIGN COURTS. 1. Intebpeetation. In the construction of [the] Act, the word " action " shall include every judicial proceeding in any court, civil, criminal, or ecclesiastical; and the words " Superior Courts " shall include in England [the Supreme Court of Judicature] ; in Scotland, the High Court of Justiciary, and the Court of Sessions, acting by either of its divisions ; in Ireland [the Supreme Court of Judicature] ; and in a foreign' country or state any superior court or courts which shall be set forth in any such convention between Her Majesty and the Government of such foreign state or country : (24 Vict. c. 11, s. 4.) 2. DiEBCTiNG Case to be Peepabed. If, in any action depending in any of the Superior Courts within Her Majesty's dominions, it shall be the opinion of such court that it is necessary or expedient, for the disposal of such action to ascertain the law applicable to the facts of the case as administered in any foreign state or country with the Government of which Her Majesty shall have entered into [a convention for the purpose of mutually ascertaining the law of such foreign country or state when pleaded in actions depending in any courts within Her Majesty's dominions and the law as administered in any part of Her Majesty's dominions when pleaded in actions depending in the courts of such foreign country or state], it shall be competent to the court in which such action may depend to direct a case to be prepared setting forth the facts as these may be ascertained by verdict of jury or other mode competent, or as may be agreed upon by the parties, or settled by such person or persons as may have been appointed by the court for that purpose in the event of the parties not agreeing : (24 Vict. c. 11, s. 1.) 8. Remitting Case and Questions to Eoeeign Cotjet. Upon such case being approved of by such court or a judge thereof, such court or judge shall settle the questions of law arising out of the same on which they desire to have the opinion of another court, and shall pronounce an order remitting the same, together with the case, to such superior court in such foreign state or country as shall be agreed upon in said convention, whose opinion is desired upon the law administered by such foreign court as applicable to the facts set forth in such case, and requesting them to pronounce their opinion on the questions submitted to them : (Id., a. 1.) Foreign Law. 403 4. Ceetipied Copy to be Record. Upon such opinion being pronounced, a copy thereof, certified by an officer of such court, shall be deemed and held to contain a correct record of such opinion : {Id., a. 1.) 5. Lodging Copy Opinion and Notice of Motion. It shall be competent to any of the parties to the action, after having obtained such certified copy of such opinion, to lodge the same with the officer of the court within Her Majesty's domiaions in which the action may be depending who may have the official charge thereof, together with a notice of motion setting forth that the party wiU, on a certain day named in such notice, move the court to apply the opinion contaiued in such certified copy thereof to the facts set forth in the case hereinbefore specified : {Id., s. 2.) 6. Applying Opinion. The said court shall thereupon, if it shall see fit, apply such opinion to such facts, in the same manner as if the same had been pronounced by such court itself upon a case reserved for opinion of the court, or upon special verdict of a jury ; or the said last-mentioned court shall, if it think fit, when the said opinion has been obtained before trial, order such opinion to be submitted to the jury with the other facts of the case as conclusive evidence of the foreign law therein stated, and the said opinion shall be so submitted to the jury : {Id., s. 2.) 7. Sending Case Back. If, after having obtained such certified copy, the court shall not be satisfied that the facts had been properly understood by the foreign court to which the case was remitted, or shaU on any ground whatsoever be doubtful whether the opinion so certified does correctly represent the foreign law as regards the facts to which it is to be applied, it shall be lawful for such court to remit the said case, either with or without alterations or amend- ments, to the same or to any other such superior court in such foreign state as aforesaid, and so from time to time as may be necessary or expedient : {Id., s. 2.) in. STATING LAW IN AID OF FOREIGN COURTS. 1. Intbepbetation. [See sup. II., 1.] 2. Petition. If, in any action depending in any court of a foreign country or state with whose Government Her Majesty shall have entered into a convention as above set forth, such court shall deem it expedient to ascertain the law applicable to the facts of the case as administered in any part of Her Majesty's dominions, and if the foreign court in which such action may depend shall remit to the court in Her Majesty's dominions whose opinion is desired a case setting forth the facts and the questions of law arising out of the same on which they desire to have the opinion of a court within Her Majesty's dominions, it shall be competent to any of the parties to the action to present a petition to such last-mentioned court whose opinion is to be obtained, praying such court to hear parties or their counsel, and to pronounce their opinion thereon in terms of this Act, or to pronounce their opinion without hearing parties or counsel : {Id., a. 3.) 3. Opinion. The court to which such petition shall be presented shall consider the same, and, if they think fit, shall appoint an early day for hearing parties or their counsel on such case, and shaU pronounce their opinion upon the questions of law as administered by them which are submitted to them by the foreign court : {Id., a. 3.) d D 2 404 Foreign Lavj — Former Practice. In order to their pronouncing such opinion they shall be entitled to take sueh further procedure thereupon as to them shall seem proper : {Id., s. 3.) 4. Copt of Opinion. Upon such opinion being pronounced a copy thereof, certified by an officer of such court, shall be given to each of the parties to the action by whom the same shall be required : {Id., s. 3.) FOREIGN SOVEREIGN. [See Paeties.] FORMER PRACTICE. I. PEOVISIONS OF JUDICATURE ACT, 1873. II. PEOVISIONS OF JUDICATURE ACT, 1875. ni. PEOVISIONS OP EULES OP COUET. IV. EULE WHEEE PBACTICE OP ABOLISHED COUETS VARIED. [See Eqxtitable Euibs, I.] I. PROVISIONS OP JUDICATURE ACT, 1873. The jurisdiction by this Act transferred to the said High Court of Justice and the said Court of Appeal respectively shall be exercised (so far as regards procedure and practice) in the manner provided by this Act, or by such Rules and Orders of Court as may be made pursuant to this Act ; and- where no special provision is contained in this_ Act or in any such Rules or Orders of Court with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised by the respective courts from which such jurisdiction shall have been transferred, or by any of such courts : (J. A., 1873, s. 32.) All Acts of Parliament relating to the several courts and judges, whose jurisdiction is hereby transferred to the said High Court of Justice and the said Court of Appeal respectively, or wherein any of such courts or judges are mentioned or referred to, shall be construed and take effect, so far as relates to anything done or to be done after the commencement of this Act, as if the said High Court of Justice or the said Court of Appeal, and the judges thereof respectively, as the case may be, had been named therein instead of such courts or judges whose jurisdiction is so trans- ferred respectively ; and ia aU cases not hereby expressly provided for in which, under any such Act, the concurrence or the advice or consent of the judge or any judges, or of any number of the judges, of any one or more of the courts whose jurisdiction is hereby transferred to the High Court of Justice is made necessary to the exercise of any power or authority capable of being exercised after the commencement of this Act, sueh power or authority may be exercised by and with the concurrence, advice, or consent of the same or a like number of judges of the said High Court of Justice; and all general and other commissions, issued under the Acts relating to the Central Criminal Court or otherwise, by virtue whereof any judges of any of the courts whose jurisdiction is so transferred may, at the commencement of this Act, be empowered to try, hear, or determine any causes or matters, criminal or civil, shall remain and be in full force and effect, unless and until they shall respectively be in due course of law revoked or altered : (J. A., 1873, s. 76.) Former Practice — Forms. 405 n. PROVISIONS OF JUDICATURE ACT, 1875. Save as by the principal Act or this Act, or by any Rules of Oonrt, may be otherwise provided, all forms and methods of procedure which at the commencement of this Act were in force in any of the courts whose jurisdiction is by the principal Act or this Act transferred to the said High Court and to the said Court of Appeal respectively, under or by virtue of any law, custom, general order, or rules whatsoever, and which are not inconsistent with the principal Act or this Act or with any Rules of Court, may continue to be used and practised, in the said High Court of Justice and the said Court of Appeal respectively, in such and the like cases, and for such and the like purposes, as those to which they would have been applicable in the respective courts of which the jurisdiction is so transferred if the principal Act and this Act had not passed : (J. A., 1875, s. 21.) ni. PROYISIQNS OF RULES OF COURT. Note. — Where no other provision is made by the Act or these Rules the present procedure and practice remain in force : (Preliminary Note to Rules of 1875.) All actions which have hitherto been commenced by writ in the Superior Courts of Common Law at "Westminster, or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, and all suits which have hitherto been commenced by bUl or information in the High Court of Chancery, or by a cause in rem or in personam, in the High Court of Admiralty, or by citation or otherwise in the Court of Probate, shall be instituted in the High Court of Justice by a proceeding to bQ called an action: (O. I., r. 1^) With respect to interpleader, the procedure and practice now used by Courts of Common Law under the Interpleader Acts (1 & 2 Will. 4, c. 58, and 23 & 24 Vict. c. 126), shall apply to all actions and to aU the divisions of the High Court of Justice, and the application by a defendant shall be made at any time after being served with a writ of summons and before delivering a defence : {Id., r. 2.) All other proceedings in and applications to the High Court may, subject to these Rules, be taken and made in the same manner aS they would have been taken and made in any court in which any proceeding or application of the like kind could have been taken or made if the Act had not been passed : {Id., r. 3.) There are also many rules expressly continuing, in particular cases, the former practice. These will be found under the various headings to the subjects to which they relate. IV. RULE WHERE PRACTICE OP ABOLISHED COURTS VARIED. [See Equitable Rules, I.] FORMS. An y costs occasioned by the use of any more prolix or other forms of writs, and of indorsements thereon, than the forms hereinaiter prescribed, shall be borne by the party using the same, unless the court shall other- wise direct : (O. II., r. 2.) The forms of writs given in the Appendix A. to the Rules of 1875 have 406 Forms — Further Consideration. in some instances been amended, and in others abolished. Other forms were added by the Rules of April, 1880. [See Weit or SuMMOifS.] [In pleading] forms similar to those in Appendix C. [to the Rules of 1875] may be used : (O. XIX., r. 4.) As to proUKity in pleading, see O. XIX., r. 2 ; Pleading. Such variations shall be made in the forms prescribed by or under the Supreme Court of Judicature Acts, 1873, 1875, and 1877, as are requisite for giving effect to these rules. The additional forms contained in the schedule hereto shall be used in or for the purposes of the Central Office, with such variations as circum- stances require. The masters may from time to time prescribe the use in or for the purpose of the Central Office of such modified or additional forms as may be deemed expedient : (O. LXa., r. 12, April, 1880.) FURTHER CONSIDERATION. I. GENERAL POWER TO OEDEE. 1. Genbbat.lt. 2. On Motion fob Judoment. 3. At Tbial. 4. On Motion fob New Tbial [eee swp. 2.] 5. On Eeeebence to Befebee. II. IN WHAT CASE EESEEVED. III. SETTING DOWN. 1. Action. 2. Cattsb Obiginating in Chambees. rv. NOTICE OF SETTING DOWN. V. MARKING "SHOET." 1. Action. 2. Caitse Oeiginatino tn Chambeks. VI. PLACING IN PAPEE. 1. Action. 2. Cause Oeioinating in Ohambebs. VII. LEAVING PAPERS. Vni. HEAEING. IX. OEDBR. I. POWER TO ORDER. 1. Geneeailt. Subject to any rules of court, any judge of the said High Court, sitting in the exercise of its jurisdiction elsewhere than in a Divisional Court, may reserve any case, or any point in a case, for the consideration of a Divisional Court, or may direct any case, or point in a case, to be argued before a Divisional Court ; and any Divisional Court of the said High Court shall have power to hear and determine any such case or point BO reserved or so directed to be argued : (J. A.,.1873, s. 46.) [But nothing in the Act of 1873, or] in any rule or order made under the powers thereof or of this Act, shall take away or prejudice the right of any party to any action to have the issues for trial by jury submitted ' and left by the judge to the jury before whom the same shall come for trial, with a proper and complete direction to the jury upon the law, and as to the evidence applicable to such issues : Provided also, that the said right may be enforced either by motion in Further Consideration. 407 the High Court of Justice.or by motion ia the Court of Appeal founded upon an exception entered upon or annexed to the record : (J. A., 1875, r. 22.) There shall be repealed .... so much of section forty-six of the Supreme Court of Judicature Act, 1873, as is inconsistent with the provisions of [the 17th section of the Appellate Jurisdiction Act, 1876, by which] every action and proceeding in the High Court of Justice, and all business arising out of the same, except as [thereinafter] provided, shall, so far as is practicable and convenient, be heard, determined, and disposed of before a single judge, and all proceedings in an action subse- quent to the hearing or trial, and down to and including the final judg- ment or order, except as aforesaid, and always excepting any proceedings on appeal in the Court of Appeal, shall, so far as is practicable and con- venient, be had and taken before the judge before whom the trial or hearing of the cause takes place : (A. J. A., 1876, s. 17.) The remainder of the rule provides that Divisional Courts may be held, and that Rules of Court may be made to carry the enactment into effect. Rules of Court have been made as to the business to be conducted in Diyisional Courts, but it is not the practice to hold Divisional Courts of the Chancery Division : (see A. J. A., 1876, s. 17 ; O. LVII., r. 1, Dec, 1876.) 2. On Motion fob Jttdgmbnt. Upon a motion for judgment, or for a new trial, the court may .... if it shall be of opinion that it has not suflB.cient materials before it to enable it to give judgment, direct the motion to stand over for further considera- tion, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it may think fit : (O. XL., r. 10.) 3. At Tbiai. Upon the trial of an action the judge may, at or after the trial, direct that judgment be entered for any or either party,- or adjourn the case for further consideration: (O. XXXYI., r. 22a, Dec, 1876; and see Chajubebs.) 4. On Motion fob New Tbiai. [See sv^., 2.] 5. On Refeebncb to Refebeb. [After a trial by or reference to a referee] .... the court shall have power to require any explanation or reasons from the referee, and to remit the cause or matter, or any part thereof, for re-trial or further considera- tion to the same or any other referee : (O. XXXVL, r. 84.) II. m WHAT CASE RESERVED. Where accounts or inquiries have been directed, the judgment, or order, if made at the original hearing, adjourns the further consideration of the cause, and final judgment is obtained at the hearing on further consideration : (Dan. 1228.) Where an order for an account is made on default of appearance to a writ specially indorsed for an account [see Account II., 3], or after appearance, where the defendant fails to satisfy the court or judge that there is some preliminary question to be tried [see Account, II., 3], it seems unnecessary to reserve further consideration, for, in the case of default of appearance to an action for an account, the action may proceed as if the party had appeared [O. XIII., r. 9 ; Appeaeance, XVI.], and where the defendant has appeared it is necessary to bring on the action by notice of trial or otherwise : [see Judgment, Tbial.] But if the judge, after default in appearance, requires no further trial, further con- 408 Further Consideration. sideration should be reserved : (see form, Seton, 8-9.) If the party has appeared, the order in Seton is improper, as the preliminary account will not be allowed to prejudice the defendant in having the issues raised by the subsequent pleadings properly heard and determined : (per Bacon, V.O., Gatti T. Webster, L. Bep. 12 Ch. Div. 774; 41 L. T. Rep. N. S. 18; 48 L. J. 763, Oh.) If an order for an account is made, previous to the hearing, under O. XXXIII. [see Accottnt, lY., l],it is improper to reserve further con- sideration, for the hearing as to the account is not the hearing of the action, which will be brought on by notice of trial or motion for judg- ment, whether further consideration has been reserved or not. A cause cannot be set down, on further consideration, on a separate certificate ; an order on such a certificate must be obtained on petition or summons : (Dan. 1228.) III. SBTTDTG DOWN". 1. Action. If the accounts and inquiries have been directed by judgment in an action, the action cannot be set down on further consideration untU the accounts or inquiries directed have been taken or made, and the chief clerk's certificate of their result filed; or a special certificate obtained, showing why the accounts and inquiries, or any of them, have not been proceeded with : (Dan. 1228.) If a preliminary order for accounts has been made, and the action is allowed to come on for hearing before the chief clerk's certificate has been made, the hearing will be postponed, and the costs wiU be ordered to be paid by the party so bringing the action on : {Be Bell, 39 L. T. Rep. N. S. 422.) When any cause shall, at the original or any subsequent hearing thereof, have been adjourned for further consideration, such cause may, after the expiration of eight days and within fourteen days from the filing of the certificate of the chief clerk of the judge to whose court the cause is attached, be set down by the registrar ia the cause book for further con- sideration, on the written request of the solicitor for the plaintiff or party having the conduct of the cause ; and after the expiration of such fourteen days the cause may be set down by the registrar, on the written request of the solicitor for the plaintiff or for any other party : (C. 0. 21, r. 10.) The request to set down the cause may be in the form or to the effect first set forth at the end of [the rule] : (Id.) [On setting down there must be produced] . the [judgment] or order adjourning further consideration, or an office copy thereof, and an office copy of the chief clerk's certificate or a memorandum of the date when such certificate was filed, indorsed on the request by the clerk of reports : (Oh. Reg. 15th March, 1860, r. 9.) The registrar's clerk retains the request for filing, and sets down the cause on the same day the request is left with him : (13an. 1234.) 2. Cause Oeiginating at Chambebs. Where any cause originating in chambers [has] at the original or any subsequent hearing thereof .... been adjourned for further considera- tion, such cause may, after the expiration of eight days, and within fourteen days from the filing of the certificate of the chief clerk .... be brought on for further consideration by a summons to be taken out by the plaintiff or party having the conduct of the cause ; and, after the expiration of such fourteen days, by a summons to be taien out by any Further Consideration. 409 other paxty .... This summons is to be served six clear days before the return : (Oh. Reg., Aug. 1857, r. 18.) Where the hearing on further consideration is adjourned into court, a note signed by the chief clerk to that efEect is left' with the clerk at the order of course seat at the registrar's office ; and, when the cause has been set down by him, notice thereof should be given to the other parties by the solicitor at whose instance it is set down : {t)a,n. 1236.) Upon the return of the summons the cause will be heard on further con- sideration in chambers, or, if there is a question which the judge thinks ought, or the parties desire, to be argued by counsel, it will be adjourned into court : (Dan. 1234-5.) rV. NOTICE OF SETTING DOWN. Notice [of the setting down] shall be given to the other parties in the cause at least six days before the day for which the [cause] may be so marked for further consideration : (C. O. 21, r. 10.) A form is given in the same rule. If any person has been served with notice of judgment, and has had leave by order to attend the proceedings, he must be served : (Seton, 42.) If it is intended to deal with the proceeds of any estate sold under the decree, the purchaser must be served, unless it appears on the proceedings that he has obtained his conveyance : (Seton, 42.) If ajiy stop order affects the funds to be dealt with, the person who obtained it must be served with notice : (Seton, 42.) V. MARKING "SHORT." 1. Action. A cause .... for .... further consideration may be marked "short" on production of the certificate of the plaintifE's counsel that the cause .... is fit to be so heard, without the consent of the solicitors for any of the defendants ; but [it] will not be so marked ... until after the expiration of ten days .... unless .... by consent of all parties : (Oh. Reg., 15th March, 1860, r. 10.) Notice that the cause has been marked for hearing as a short cause should, where not so marked by consent, be given to the other solicitors in the cause, by the solicitor of the plaintiff : (Dan. 1234.) 2. Cause Obiginating in Chambees. If the parties desire that the cause should be heard as a " short cause " the note mentions the short cause day on which it is to be heard : (Dan. 1235.) YI. 'PLACING IN PAPER. 1. Actions. The cause when so set down shall not be put into the paper for further consideration until after the expiration of ten days from the day on which the same was so set down, and shall be marked in the cause book accord- ingly : (C. O. 21, r. 10.) 2. Cause Oeiginating in Chambees. In cases other than short causes, the cause will not, except by consent, be put into the paper before the expiration of ten days from the time when it was set down : (Dan. 1235.) VII. LEAVING PAPERS. Before the cause comes on, copies of the judgment or order adjourning the further consideration, the chief clerk's certificate, and any other orders 410 Further Gonsideratior, . or certificates which shall be referred to at the hearing, should be left with the usher for the use of the court, by the solicitor for the party who has set the cause down : (Dan. 1235.) YIII. HEABING. No .... further consideration shall be allowed to stand over to an in- definite period : (C. O. 21, r. 13.) The further consideration conies on before the judge before whom the trial took place : (see sup., I., 7 ; and 0. O. 6, r. 5.) When, by sect. 17 of the Appellate Jurisdiction Act, 1876, or by these rules, any application ought to be made to, or any jurisdiction exercised by the judge before whom an action has been tried, if such judge shall die or cease to be a judge of the High Court, or if such judge shall be a judge of the Court of Appeal, or if for any other reason it shall be impossible or inconvenient that such judge should act in the matter, the president of the division to which the action belongs may, either by a special order in any action or matter, or by a general order appUeable to any class of actions or matters, nominate some other judge to whom such application may be diade, and by whom such jurisdiction may be exercised : (O. LVIIa., r. 2, Dec, 1876.) If any party served does not appear, an office copy of the affidavit of service of the notice must be produced to the registrar before the rising of the court : (Seton, 42.) When a purchaser has been served, the affidavit must show that his conveyance has been delivered to him : {Id.) If the purchaser has obtained his conveyance he should not appear. If he appears, he is generally refused his costs : (IS.). Any person who has been found by the certificate to be interested in the subject-matter of the suit, such as a creditor whose claim has been allowed, has a right to appear upon the hearing of the cause for further consideration, to protect his own interest ; and he may do so, without previously obtaining leave to appear, provided he desires to take advan- tage of 'nothing but what appears in the certificate : (Dan. 1236.) Upon a hearing on further consideration the court will not permit facts to be brought before it, in order to ground upon them a direction not warranted by the original judgment : (Dan. 1236.) The certificate cannot be cmUenged at the hearing on further considera- tion, by any person who has not applied to discharge or vary it, and whose application does not then come on for hearing : (Dan. 1228.) No further evidence than the certificate, as to matters directly in issue in the cause, wiU be received on the hearing on further consideration ; but, if necessary, the court will, at the suggestion ftf counsel, direct further inquiries as to such matters : (Dan. 1228.) Matters not directly in issue may, if the court thinks proper, be proved by affidavit : {Id. ; and see Evidence, II., 3.) Under O. XY., r. 1 (see AccoTJlfT, II., 3) any matter required on further consideration may be proved by affidavit : {Beaney v. Elliott, W. N., 1880, p. 99.) IX. ORDER. Upon the hearing on further consideration the court will make such further order in the cause as, upon reading the chief clerk's certificate, appears to be consistent with the justice of the case as it stands upon the judgment and certificate: (Dan. 1229; and see iJe St. Nazaire Land Company, L. Rep. 12 Ch. Div. 88 ; 41 L. T. Rep. N. S. 110.) The court will direct any further inquiries or accounts, where circum- Further Consideration — Goods. 411 stances have arisen which render it necessary to give such directions, in order to fulfil the objects of the decree : (Dan. 1237.) Further consideration may be reserved more than once : (Dan. 1230.) "Where, on the hearing of an administration suit on further consideration, the order directed further accounts and inquiries to be taken, and, there being no further questions of law to decide, it was proposed again to reserve further consideration, Jessel, M.B. refused to do so in court, but gave general liberty to apply iu chambers when the certificate was made : (GilbeH T. JRussell, W.N"., 1875, p. 225.) On bespeaking orders on further consideration [the following documents must be left with the registrar] : counsel's brief, the original [judgment], or the last order on further consideration, and any subsequent orders to revive or carry on the proceedings, the office copy of the chief clerk's certificate, and office copies of any affidavits, and any exhibits or other evidence used at the hearing : (Oh. Reg., March, 1860, r. 29.) If the order deals with any purchase money [there must be left] a consent brief for the purchaser, or an affidavit of notice to him of the intended application of the purchase money, and that the conveyance has been executed and delivered to him : {Id., r. 30.) "Whenever any fund in court is to be dealt with [there must be left the Paymaster-General's] certificate, and, if the funds are restrained by any order, the restraining order or an office copy thereof : (Oh. Reg., March, 1860, r. 16.) "Where payment out of court is ordered to legal personal representatives [there must be left] the probate or letters of administration, stamped for a sufficient amount : {Id., r. 17.) GARNISHEE. [See ExECTJTiON.] GOODS. I. ACTION EST EESPECT OP. 1. "Weit of Stjmmons. 2. Peocbedinos in DsrAULT. (a) Of Appearcmce. (6) Of Pleading. 3. InTEBLOCUTOET OeDEK POE DELrVEET. 4. Execution [see Execution, XIL, 4, 5.] II. OEDEE FOE SALE OF [see Peopeett.J I. AOTION IN RESPECT OF. 1. "Wbit of Summons. Forms of indorsement are given in App. A., p. II., s. 4, to the Rules of 1875. 2. Peoceedings in Default. (a) Of Appearance. Where the defendant fails to appear to the writ of summons and the plaintifE's claim is not for a debt or liquidated demand only, but for deten- tion of goods and pecuniary damages, or either of them, no statement of 412 Goods. claim need be delivered, but interlocutory judgment may be entered : (0. XIII., r. 6 ; and see Jtjdgment.) The rule does not provide for judgment being entered in default of appearance of one of several defendants. A form of judgment has been issued by the registrar. A writ of inquiry shall issue to assess the value of the goods and the damages, or the damages (July, as the case may be, in respect of the causes of action disclosed by the indorsement on the writ of summons. But the court or a judge may order that, instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way in which any question arising in an action may be tried : (0. XIII., r. 6 ; and see Inquiries ; Teiai.) A form of judgment, after the writ of inquiry, has been issued by the registrars : (see Judgment.) If the action be for the return of a specific chattel, final judgment may be entered, and without leave : (Ivory v. Cruickshamk, W. N., 1875, p. 249.) ' (6) Pleadimg. If the plaintiff's claim be for detention of goods and pecuniary damages, or either of them, and the defendant makes default as mentioned in rule 2 [that is, by not delivering a defence or demurrer within the time allowed] plaintifE may enter an interlocutory judgment against the defendant : (0. XXIX., r. 4.) A writ of inquiry shall issue to assess the value of the goods, and the damages, or the damages only, as the case may be. But the court or a judge may order that, instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way in which any question arising in an action may be tried : (O. XXIX, r. 4 ; and see Inquiries, Trial.) When in any such action, as in Rule 4 mentipned, there are several defendants, if one of them make default as mentioned in Rule 2, the plaintifiE may enter an interlocutory judgment against the defendant so making default, and proceed with his action against the others. And in such case, damages against the defendant shall be assessed at the same time with the tiMl of the action or issues therein against the other defen- dants, unless the court or a judge shall otherwise direct : (O. XXIX., r. 5 ; and see Trial.) The solicitor, on entering judgment, must produce the master's certi- ficate of appearance and the statement of claim, unless it appears by such certificate that the defendant did not require a statement of claim to be delivered. If the statement of claim does not show the date of delivery the solicitor must indorse such date : (Directions to Registrars, July, 1876.) A form of judgment has been issued by the registrars : (see Judgment ; and Sched. D. 8 to Rules of April, 1880.) If the action be for the return of a specific chattel, final judgment may be entered, and without leave : [Ivory v. Cruickshamk, swp.) If the plaintifPs claim be for a debt or liquidated demand, and also for detention of goods and pecuniary damages, or pecuniary damages only, and the defendant makes default as mentioned in Rule 2, the plaintiff may enter final judgment for the debt or liquidated demand, and also enter interlocutory judgment for the value of the goods and' the damages, or the damages only, as the case may be, and proceed as mentioned in Rule 4 : (O. XXIX., r. 6.) 3. Interlocutory Order pof Delivery. Where an action is brought to recover, or a defendant in his statement Goods — Improvement of Land. 413 of defence seeks by way of counter-claim to recover specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same, but claims to retain the property by virtue of a lien or otherwise as security for any sum of money, the court or a judge may, at any time after such last- mentioned claim appears from the pleadings, or, if there be no pleadings, by affidavit or otherwise to the satisfaction of such court or judge, order that the party claiming to recover the property be at liberty to pay into coxirt, to abide the event of the action, the amount of money in respect of which the Ken or security is claimed, and such further sum (if any) for interest and costs as such court or judge may direct, and that upon such payment into court being made, the property claimed be given up to the party daiming it: (O. LII., r. 6.) A motion, by a plaintifE before judgment, for delivery of a vessel subject to a Hen for a final instalment of purchase money, which was payable under contract on delivery of the vessel abroad, was refused: {Sultan of Turkey v. Union Bank of London, W. N., 1877, p. 79.) 4. ExECUTioir. [See Execution, XII., 4, 5.] n. ORDER FOR SALE OP. [See Peopbett.] GRAMMAR SCHOOL. [See Chaeitibs.] GUARDIAN. [See Infants; Lunatics; Paetibs; Settled Estates; Teustbes.] HOUSE OF LORDS. [See Appeal.1 IMPRISONMENT. [See Aebest; Execution.] IMPROVEMENT OF LAND. I. WHAT IMPKOVEMENTS MAY BE AUTHORISED. II. WHERE OEDEE OF JtTDGE NECESSAET. 1. On Dissent of ant Intekested Pekson. 2. Where Iiandowneb ob Hbb Husband is Father op Interested Injant. 3. On Dissent of Navigation Tbttsxees. 414 Improvement of Lcmd. III. APPLICATION. 1. TTnnecessabt where Dissent withdrawn. 2. Landowner to Apply. 3. SnuMONS. 4. Service out os Jitrisdiotion. IV. HEAEING AND EVIDENCE. V. OEDEE. VI. COSTS. I. WHAT IMPROVEMENTS MAT BE AUTHORISED. By improvement of land shall be meant all or any of the following matters : — (1) Drainage of land, and straitening, widening, deepening, or other- wise improving the drains, streams, and watercourses of any land. (2) Irrigation and warping. (3) Embanking and weiring of land from the sea or tidal waters, or from lakes, rivers, or streams, in a permanent manner. (4) Inclosing of lands and the straitening of fences and re-division of fields. (5) Reclamation of land, including all operations necessary thereto. (6) Making of permanent farm roads and permanent tramways and railways and navigable canals for all purposes connected with the improvement of the estate. (7) Clearing of land. (8) Erection of labourers' cottages, farmhouses, and other buildings required for farm purposes, and the improvement of and addition to labourers' cottages, farmhouses, and other buildings for farm purposes already erected, so as such improvements or additions be of a permanent nature. (9) Planting for shelter. (10) Constructing or erecting of any engine houses, waterwheels, saw and other mills, kilns, shafts, wells, ponds, tanks, reservoirs, dams, leads, pipes, conduits, watercourses, bridges, weirs, sluices, floodgates, or hatches which will increase the value of any lands for agricultural purposes. (11) Construction or improvement of jetties or landing places on the sea coast, or on the banks of navigable rivers or lakes, for the transport of cattle, sheep, and other agricultural stock and produce, and of liine, manure, and other articles and things for agricultural purposes, provided the Inclosure Commissioners shall be satisfied that such works will add to the permanent value of the lands to be charged to an extent equal to the expense thereof. (12) The execution of all such works as in the judgment of the com- missioners may be necessary for carrying into effect any matter hereinbefore mentioned, or for deriving the fuU benefit thereof : (27 & 28 Yict. c. 114, s. 9.) (13) Erection of a mansion house and such other usual and necessary buildings, outhouses, and offices as are commonly appurtenant thereto, and l\pld and enjoyed therewith. (14) Completion of any mansion house and such appurtenances as afore- said. (15) Improvement of and addition to any mansion house and such appurtenances as aforesaid already erected. (16) Improvement of and addition to any house which is capable of being converted into a mansion house suitable to the estate on Improvement of Land. 416 which -the same stands, so as such improvement and addition be of a suitable nature : (34 & 35 Vict. c. 85, s. 3.) Every such mansion house so erected or enlarged or converted must, to be an improvement, be suitable to the estate on which it stands as a residence for such estate, " estate " including lands on which any improve- ment is to be made, and any other lands in the neighbourhood settled to the same uses : (Id.) As to the sum to be charged in respect of mansions and other buildings see 33 & 34 Vict. c. 56, s. 4. n. WHERE ORDER OF JUDGE NECESSARY. 1. On Dissent op ant Intebbsted Peeson. [When] any person having any estate in, or charge or security on, the land to be improved [has] within the month named in the [previous] section [signified] iu writing to the [Inelosure] Commissioners his dissent from such application, stating therein the nature of his estate in, or charge or security on, such land .... unless or until such dissent be withdrawn : (27 & 28 Vict. c. 114, s. 18.) 2. Whebe Landowner oe Heb Husband is Fatheb oe Inteeested Infant. [Where] the landowner, or the husband of the landowner, [is] the lather of the person or persons entitled, either at law or in equity, to any estate in such land, or any part thereof, in reversion or remainder, up to and inclusive of the person entitled to the first vested estate of inherit- ance, and such person or persons, or any of them [is or are] infant or infants, or a minor or minors : (Id.) 3. On Dissent oe Navigation Tetjstbbs. If the commissioners shall consider that any proposed improvement would interfere with any navigable river or canal respectively vested in or under the management or control of any commissioners,- trustees, con- servators, undertakers, company, or other body or individuals, or the banks or other works or conveniences thereof, or would occasion the flow or discharge into such river or canal of any drainage or other matter, in ' case they shall within one month after the receipt of [the commissioners'] notice [of the intended application] signify in writing to the commis- sioners their dissent from such appUcation, and state the nature of their interest in or authority over such river or canal .... unless or until such dissent be withdrawn : (27 & 28 Vict. c. 114, s. 19.) m. APPLICATION. 1. Unnecbssaet whebe Dissent Withdbawn. If, at any time after notification of such dissent, and before any .... order [of a judge] shall have been applied for and made as aforesaid, such dissent shsffl. be withdrawn by a like notification in writing, it shall not be necessary to make or ^jroceed with such application, or to obtain such order : (27 & 28 Vict. c. 114, s. 21.) 2. Landowneb to Apply. If and when any dissent from any .... application to the commis- sioners for their sanction of proposed improvements shall have been notified in writing to the commissioners [as mentioned, sup. II.], or if the landowner, or the husband of the landowner, shall be the father of ... . an infant or ... . minor [entitled as mentioned, si»p. II.], the landowner desiring such improvements may apply to the [Chancery Division] for an order .... authorising the commissioners to entertain and proceed 416 . Improvement "of Land — Inclosure Act. upon the application for such proposed improvements notwithstanding such dissent or circumstance : (27 & 28 Yict. c. 114, s. 21.) 3. Summons. Such applica-tion shall be made to a Judge sitting at chambers, by summons, calling on the party dissenting to show cause why such order should not be made : (27 & 28 Yict. c. 114, s. 21 ; see Chambees, Xm.) 4. SEE.TICE OUT OF JtrBISDICTION. Where any party dissenting shall be out of the juiisdiction of the court, it shaJl be lawful for the court or judge to order service to be made in such maimer as such coiu-t or judge may think fit, and upon proof to the satisfaction of such court or judge that such party has had actual notice, within a reasonable time, of such intended application, it shall be lawful for such court or judge thereupon to hear and determine such application : (27 & 28 Vict. c. 114, s. 22.) IV. HEARING AND EVIDENCE. The .... judge to whom such application shall be made, shall hear and determine such application, and for that purpose shall have power to make or direct to be made all such inquiries, and receive and entertain aU such statements and evidence, on oath or by affidavit, as such .... judge may consider necessary or desirable, or as may be produced before them or him : (27 & 28 Vict. c. 114, s. 24.) V. ORDER. If, upon a consideration of all the circumstances, such .... judge shall be of opinion that the commissioners should entertain and proceed upon such application, an order shall be made authorising and requiring them to proceed thereon, and to deal with the same according to the pro- visions of this Act authorising them iu that behalf, notwithstanding such dissent or circumstance as aforesaid : (27 & 28 Vict. c. 114, s. 21.) VI. COSTS. The costs of and incidental to every application under the 21st and 22nd sections, and the mode in which such costs shall be settled or taxed, shall be in the discretion of the . . . judge who shall hear such applica- tion, and if such .... judge shall so direct the said costs shall be deemed to be part of the expenses of and incidental to the application for the proposed improvements : (27 & 28 Vict. c. 114, s. 23.) INCLOSURE ACT. Moneys payable under the Inclosure Act (where not payable to proprietors), 2 less than .... 200Z. and [exceeding or amounting] to .... 201 shall, at the option of 'the parties who for the time being would have been entitled to the rents and profits of the .... land, or their guardians or committees, in case of infancy, idiotcy, lunacy, or other incapacity, with the approbation of the cominissioners, to be signified in writing under their seal, be (1) Paid into court ; or (2) To trustees nominated by the parties : (8 & 9 Viet. c. 118, s. 140.) SE the money] shall amount to or exceed the sum of 200Z., the same , with all convenient speed, unless the commissioners shall otherwise direct, under the provisions .... contained [in the Act], be paid into Inclosure Act — Infants. 417 [court, to an account — " Ex parte The Inclosure Oommissioners "] : (8 & 9 Vict. c. 118, s. 138 ; 38 & 39 Vict. c. 66.) The money shall, when so paid in, then remain until the same shall, by order of the said court, made upon a petition in a summary way by the parties who would have been entitled to the rents and profits of the .... land, be applied to the following purposes or any of them ; (that is to say,) The redemption or discharge of the land tax, or of any debt or other incumbrance afEecting the same land, or affecting other lands standing settled therewith to the same or the like uses or trusts ; The purchase of other land, to be conveyed or settled upon the lite uses or trusts, or such of them as shall be then existing undetermined, or capable of tiKng efPect : (8 & 9 Vict. c. 118, s. 138.) In the meantime, and until snch application shall be made, the said money may, by order of the said court, to be made upon the like petition, be invested by the [Paymaster- General] in the purchase of 31. per cent. Consolidated, or 31. per cent. Reduced, Bank Annuities, or of Government securities : (s. 139.) The dividends or interest of such annuities or securities shall, from time to time be paid, by order of the said court, to the parties who, for the time being, would have been entitled to the rents and profits of the lands so to be purchased, conveyed, and settled : (s. 139.) [And see Payment into and out of Cotjet.] The practice under ss. 69 and 70 of the Lands Clauses Consolidation Act, 1846, is generally applicable to proceedings under the Inclosure Act : (See Lands Clauses Act.) INFANTS. I. THBIE POSITION EST AN ACTION. 1. As Paetibs [see Pabties]. 2. Seevtce or Weit [see Weit oi' Summons]. 3. Appbaeancb [see Appeaeance, II.] 4. Admissions in Pleadings. 5. INQUIET AS TO PBOPKIETT OP AcTION. 6. Showing Cause against Judgment [see Judgment]. n. WAEDSHIP. 1. jueisdiotion. 2. Who mat take Pbocebdings. 3. What Pebsons aee Wabds. 4. Pbotection to WaedS. 5. ouabdians. (a) When Appointed. (b) ChMvrdMms of the Person. (1) Application. (2) Evidence. (3) Who Appointed. (c) Qua/rd/iwns of the Estate. (1) When Appointed. (2) Application. (8) Who Appointed. (4) Evidence. (5) Security. ((J) Interference with Testamentary Chia/rdians. (e) Removing OvMrdiams. 6. Taking Waeds out op Jubisdiction. B E 418 Infants. 7. Sanctioning Marbiaqe op Wabd. (a) Cowrt's Lecme necesscm/. (b) Who AppUes, (c) How AppUcation made. (d) Evidence. (e) Adjov/m/ment to Chambers. (/) Summons to Proceed. (jg) Proceedings in Cha/mbers. (h) Settlement. (i) Trustees, (k) Order. 8. Best&aining) Mabbiaqe of Wabd. (a) When Order made. (b) AppUcaUon. 9. Pboceedinqs on Maeeiaob without Sanction. (a) Committal. (b) Application for InqyAry. (c) Attendance of Pa/rties. () Other Cases. (c) AppUcation. (d) Seroice. (e) Evidence. (/) Order. (g) Where Capital applied, (h) Increasing Allowance. 3. Advancement. (a) Where ordered. (b) AppUcation. (c) Evidence. 4. SUBBBNDEE BT AND EeNEWAL TO InEANT LESSEES. (a) Power to Order. (b) AppUcation. (c) Expenses of Renewal. 5. Eenewal by Infant Lessoes. (a) Where ordered. (b) Application, (c) Premiv/ms. Infants. 419 6. Leases by Infants. (a) Where ordered. (i) ApplAcaMon. (c) OondMiorud Contract. (d) Order. (e) Settling Lease. (f) Counterpart. 7. Sahctioning Settlements. (o) Power to Sanction. (6) AppUcation. (c) Ordering Service of Petition, (d) Adjournment to Ghambers. (e) Summons to Proceed. (/) Evidence. {g) Settlement. (fe) Order. I. THEIR POSITION UST AN ACTION. 1. As Pabties. [See Paeties..] 2. Sektice of Writ. [See Weit of Summons.] 3. Appbababtcb. [See Appbabance, II.] 4. Admissions in Pleadings. Allegations of fact in pleadings in an action, though not denied specifi- cally, or by necessary implication ; or stated to be not admitted by an infant's pleading, are not thereby admitted, aa in ordinary cases : (see O. XIX., r. 17 ; Pleading.) 5. Inqtjiet as to Peopeiett of Action. Where, on behalf of an infant, two or more suits are instituted in his name, by different persons, each acting as his next friend, the court will, where no decree has been made in any of the actions, direct an inquiry to be made at chambers as to which suit is most for his benefit ; and when that is ascertained, wiU stay the other actions. When the suits are attached to the same branch of the Chancery Division, and none of them is in the paper for hearing, such inquiry wiU be directed on an ex parte motion, the court being satisfied, in the first instance, with the allegation that the actions are for the same purpose ; when they are attached to difPerent branches, an order of transfer of one suit must be obtained to the judge in whose court the other is ; and the order for inquiry is then obtained from him on motion, after notice to the other parties. The order for inquiry must be made in both suits, and is no stay of proceedings. If upon the inquiry the second suit is deemed more beneficial to be prosecuted, the court will stay the first suit, and give costs to the next friend. Under special circumstances the court may order the suits to be stayed without inquiry. Where a decree has been made in any of the suits, no inquiry is usually directed ; but the other suits will be stayed ; liberty being g^ren to each next friend in the stayed suits to apply for the conduct of the suit in which the decree was made. Where another next friend commences a second action, he must show some defect La the first ; or a decided preference in the second ; if the merits are only equal, priority prevails : (Dan. 68-9.) B B 2 420 Infants. The court will, on the application of the defendant, or of any person acting as next friend in the application (bnt not on the application of the ' next friend in the action, unless another action is pending, and not on the hearing), where a strong case is shown that an action preferred in the name of an infant is not for his benefit, or is begun from improper motives, order an inquiry concerning the propriety of the suit. If upon such inquiry it appears that the suit is not for the benefit of the infant, either the proceedings will be stayed, or if there is no excuse for the fact of the suit having been instituted, the action will be dismissed with costs, to be paid by the next friend : {Fox v. Swuierkrop, 1 Beav. 583 ; Thomas v. Elson, W. N. 1877, p. 177.) Where it appeared clearly upon affidavits that the suit was commenced by the next friend to promote his own views, and not for the benefit of the infant, the court wiU make such order without an inquiry : (Dan. 69-70.) 6. Showing Cause against Judgment. [See Judgment.] II. WARDSHIP. 1. JUKISDICTION. Causes and matters relating to the wardship of infants are assigned to the Chancery Division : (J. A. 1873, s. 34.) The jurisdiction of the court over its wards remains notwithstanding they become lunatic during their infancy, and may, notwithstanding, be exercised by entertaining applications as to their custody and education, although the question of sanity may be the principal point in dispute : (iJe Tldmiwrds, L. Rep. 10 Ch. Div. 605 ; 40 L. T. Rep. N. S. 119 ; 48 L. J. Oh. 233; 27W. R. 611.) The jurisdiction as to appointment of guardians, and the protection of property of infants, is exercised only when the court has the means of applying property for the use and maintenance of the infants : (Dan. If an infant has no property, the jurisdiction may be attracted by purchasing consols and settling them upon trust for the children : (See Be Agar-ElUs, L. Rep. 10 Ch. Div. 52 ; 39 L. T. Rep. N. S. 380 ; 48 L. J. 1 Ch. ; 27 W. R. 117.) 2. Who mat take Peoceedings. Any person may commence proceedings for an infant's benefit, subject to being made to pay costs if the proceedings are improper : (Dan. 1191.) 3. What Persons are Wards. Generally whenever proceedings are instituted for the court's direction as to the estate, person, or benefit of an infant, or the administration of property in which he is infant. Tie, whether plaintiff or defendant, becomes a ward of court : (Dan. 1190.) He becomes such also — (a) By appointment of guardian on petition ; (b) By payment in under the Trustee Relief Act ; (c) By order for maintenance on summons ; (d) By order for maintenance on petition where there are guardians. But not on payment in under the Legacy Duty Act, or Lands Clauses Act : (Dan. 1190-1.) 4. Protection to Wards. A ward is under the protection of the court, whether he is under the immediate tutelage of his father (Dan. 1190), or under any guardian, Infants. 421 however appointed : (Id. ; Be Alison's Trusts, L. Rep. 8 Oh. Div. 1 ; 38 L. T. Rep. N. S. 304 ; 47 L. J. 755, Oh. ; 26 W. R. 450.) The actual guardianship is not assumed by the court : (Dan. 1190.) 5. Guardian. (a) Where Appointed. The court will appoint a guardian to an infant in a proper case, although his father is alive ; or although there is a testamentary guardian, however large the property may be ; or although the infant is out of the jurisdic- tion (if his property is within the jurisdiction) (Dan. 1192^) ; or although no other proceedings as to the infant or his estate are pending : (Ayck. 591.) The Chancery Division has jurisdiction to appoint guardians to infants, notwithstanding guardians have been appointed by the Lancaster Palatine Court : [Be Alison's Trusts, sup.) (b) GvMrdian of the Person. (1) Application. The application is at chambers by ordinary summons when proceedings are pending ; in other cases by original summons, intituled in the matter of the infant by his next friend : (Ayck. 591.) The written authority of the next friend must be filed with the dupli- cate summons : (Dan., 192.) The summonses must be served on the relatives named [see posf] unless they acquiesce in the appointment proposed : (Dan. 1195.) (2) Evidence. Upon application for the appointment of guardians of infants, the evidence is to show : 1. The ages of the infants. 2. The nature and amount of the infants' fortunes and incomes. 3. What relations the infants have : (Ch. Reg. Aug. 1857, r. 19.) Generally it must be shown what persons there are of or within the same degree of relationship as the proposed guardian, and, if the mother is proposed, the evidence must extend to paternal and maternal uncles and aunts. If the summons is not served on the relations, their acquiescence in the appointment must be proved, unless service on them is dispensed with: (Dan. 1195.) The fitness of the proposed guardian must be proved and his written consent to act produced : [Id.) Sometimes evidence of fitness is dispensed with : {Id.) (3) Who Appointed. The court disapproves of the appointment of a married woman as sole guardian [Be Kaye, L. Rep. 1 Oh. App., 387), and if any female guardian subsequently marries, her guardianship determines and a new appoint- ment is necessary : (Dan. 1196.) Where one of several guardians appointed by the court dies, the right of the survivors determines ; not so with respect to testamentary guardians : (Dan. 1196.) (c) Guardian of the Estate. (1) When Appointed. Where no action is pending, enabling the court to manage the property, a guardian of the estate as well as of the person is appointed: (Dan. 1196.) (2) Application. The application must be made as in the case of a guardian of the person : (see sup. (6) (1).) 422 Infants. (3) Who Appointed. The gaardian of the person is usually appointed : {Id.) (4) Evidence. Where a guardian of the estate is to be appointed, the evidence must show the nature, rental, or income, and other material particulars of the estate, the fitness of the proposed guardian, and his consent to act: Dan. 1196.) (5) Security. Security, duly to account, is generally required, as in the case of a receiver : [See Beceivee]. The recognisance is completed and the accounts are taien as in the case of a receiver : (Dan. 1197.) [See Rbceitee.] (d) Interference with Testamentary Guardians. A testamentary guardian may be removed, and another appointed in his place, or without removing bim the court may appoint another person to have care of the infant : (Dan. 1194.) The usual course is to mal^e orders regulating the conduct of the testa- mentary guardian : {Id.) An action is necessary to remove a testamentary guardian only when he has taken the trust upon him, and acted as guardian : {Id.) (e) Removing Guardians. The application is by summons, supported by evidence of the facts, of the fitness of the proposed new sruardian, and his consent to act : (Dan. 1197.) 6. Taking Iitpants out op Jxtbisdiction. Application by summons must be made before taking wards out of the jurisdiction, even to Ireland and Scotland, supported by an affidavit of grounds, and an undertaking to bring him back by the person taJdng him : (Dan. 1198.) 7. Sanctioning Mabbiage of "Waed. (a) Court's Leave Necessary. An^ order sanctioning the proposed marriage must be made notwith- standing the infant has a parent or guardian : (Dan. 1206.) (6) Who Applies. The petition should always be presented by the intended husband, whether the ward or not : {Lucas v. Dalziel, W. N. 1879, p. 151.) Sometimes a female ward and sometimes both parties are petitioners : where the settlement can only be effected under 18 & 19 Vict. c. 43 [see posf], the petition must be presented by the infant : {Id.) (c) Mow Application Made. The application is usually by petition : (Dan. 1209.) Which must state the age of the ward; the nature of his or her fortune ; the contemplated marriage ; the age, rank, position in life, and fortune of the person to whom the infant is proposed to be married ; and must pray for an inquiry whether the contemplated marriage is a proper one for the ward ; that, if so, proposals for a settlement may be received ; that a proper settlement may be approved ; and that, upon the execution thereof, the parties may be at liberty to intermarry : (Dan. 1210.) {d) Evidence. The allegations in the petitions must be supported by affidavit : (Dan. (e) Adjournment to Chambers. On a petition for leave for an infant to marry, the whole matter is usually adjourned for consideration in chambers : (Seton, 4th edit. 54.) Infants. 423 (/) Summons to Proceed. A. smnmons to proceed is then taken out : {Id.) [g) Proceedings in Chambers. The propriety of the marriage is discussed; proposals of a settlement are brought ui ; the matter is adjourned for the settlement to be prepared : (Dan. 1210.) (h) Settlement. The draft is prepared by the lady's solicitor, and settled in chambers with the aid of the conveyancing counsel : (see Deed, CoNVETANCine Counsel.) (i) Trustees. The fitness of the trustees, and their consent to act, is shown : {Id.) (k) Order. A minute of the order and of the evidence adduced is written on the fold of the original petition, %,nd sent to the registrar, who draws up the order : (Seton, 4th edit. 54.) 8. Restkaining Maebiage of "Ward. (a) Where Order Made. If the court suspects that the marriage of its ward is intended without its sanction, it will restrain by injunction the marriage, and also com- munication between the ward and the intended husband or wife, and will, if necessary, remove the infant from the custody of a guardian, and restrain his giving consent without leave of the court : (Dan. 1206.) (6) Application. The application is usually by petition on motion supported by affida,vit, and hearsay evidence and declaration have weight : (Dan. 1207.) In urgent cases an ex parte application is sufficient : {Id.) 9. Peoceedings on Maeeiage without Sanction. {a) CommAttal. A person marrying a ward of court without its consent, and all persons aiding and abetting, are guilty of contempt, and may be committed to prison, although ignorant of the fact of wardship : (Dan. 1207 ; and see Aeeest.) (6) Application for Inquiry. An application may be made by motion or petition of the infant, guardian, or any other person, for an inquiry as to the validity of the marriage and the approval of a proper settlement : (Id.) ■ (c) Attendance of Parties. The parties are ordered to attend personally to answer the contempt : {Id.) {d) Settlement. If the marriage is valid, the court, in the case of a female ward, directs a settlement to be made with the approval of the judge : (Dan. 1208.) An application to commit may be ordered to stand over pending the approval and execution of the settlement. (e) Ordering Marriage Ceremony. If the marriage is not legal, and the parties have cohabited, the court will order them to be married again : (Simpson on Infants, 309.) in. PRODUCTION OF INFANTS. 1. Habeas Ooeptts. Production of the infant may be enforced by writof habeas corpus, which wiU be issued at the instance of the person having the legal right 424 Infants. to his custody, in order that the infant may be brought up, or that it may be ascertained by the return how he has been disposed of : (Seton, 751;) The application is by motion : (Seton, 754.) 2. Obdeb. An order for production may be made, which may be enforced by attachment : {Be Holt, L. Rep. 11 Oh. Div. 168 ; 40 L. T. Rep. N. S. 207 ; 27 W. R. 485.) IV. CCrSTODT OF INFANTS. 1. UsTDEK Act of 1873. (a) Where given to Mother. [The court may order that] the mother of any infant or infants under sixteen years of age .... shall have access to such infant or infants at such times and subject to such regulations as the court shall deem proper, or ... . that such infant or infants shall be delivered to the mother, and remain in or under her custody and control, or shall, if already in her cxistody or under her control, remain therein untU such infant or infants attain such age, not exceeding sixteen, as the court shall direct ; and further, .... that such custody or control shall be subject to such regulations as regards access by the father or guardian of such infant or infants, and otherwise, as the said court shm deem proper: (36 Yict. c. 12, s. 1.) The application is by petition of the mother, by her next friend {Id.), and may be presented m forma pawperis : {Hx parte Hakewill, 3 D. M. & G. 116.) The Act is for the benefit of the wife and children, and in deciding who is to have their custody a great regard must be had to their interests : {Re Taylor, L. Rep. 4 Oh. Div. 157 ; 36 L. T. Rep. N. S. 169; 46 L. J. 399, Oh. ; 25 W. R. 69.) But the court will not, in the absence of misconduct on the husband's part, interfere with his right to remove the children from the influence of a mother, which is used to thwart his wishes and plans as to their religions training and education, and to impose as a condition of her access to the children a promise not to use that access for a purpose lawfully prohibited by him : {Be Aga/r-Ellis, L. Rep. 10 Oh. Div. 49, 71 : 39 L. T. Rep. N. S. 380 ; 48 L. J. 1, Oh. ; 27 W. R. 117.) Where the husband was a co-respondent in a divorce action charging him with adultery, had kidnapped the only child, and abandoned Ms wife, the court ordered immediate delivery of the child to her, with liberty of access by the father and paternal grand-parent, and liberty to apply as to the maintenance and education on the child's attaining seven years' of age : {Be Taylor, sv/p.) The order must be intituled in the matter of the infant (naming her) and in the matter of the Act 86 &' 37 Vict- c. 12 : (Be Salt, Infant, L. Rep. 11 Oh. Div. 168 ; 40 L. T. Rep. N. S. 207.) (6) Enforcing Covenants in Separation Beeds. No agreement contained in any separation deed made between the father and mother of an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother : Provided always, that no court shall enforce any such agreement if the court shall be of opinion that it will not be for the benefit of the infant or infants to give efEect thereto : (36 Yict. c. 12, s. 2.) Where the mother had published atheistical opinions, refused any religious instruction to the chUd, and published an obscene book, the Infants. 425 Court of Appeal ordered the child to be removed altogether from her custody, notwithstanding a covenant, by the father, in the separation deed, that the child should remain in the mother's custody for eleven months in each year : (Be Besant, L. Eep. 11 Oh. Div. 508 ; 40 L. T. Eep. N. S. 469 ; 48 L. J. 497, Oh. ; 27 W. R. 741.) The application may be made by petition of the infant by his or her next friend : (Id.) The order must be intituled in the matter of the infant, naming Mm, and in the matter of the Act : (JSe Holt, sup.) 2. Where Oonvicted of Felony. • (o) Power to make Orders. In every case in which any person, being under the age of twenty-one years, shall ... . be convicted of felony, it shall be lawful for [the Chancery Division], upon the application of any person or persons who may be will in g to take charge of such infant, and to provide for his or her maintenance and education, if such court shall mid that the same will be for the benefit of such infant, due regard being had to the age of the infant, and to the circumstances, habits, and character of the parents, testamentary or natural guardian, of such infant, to assign the care and custody of such infant, during his or her minority, or any part thereof, to such person or persons, upon such terms and conditions, and subject to such regulations respecting the maiatenance, education, and care of such infant as the said Court of Chancery shall think proper to prescribe and direct : (3 & 4 Yict. c. 90, s. 1.) Upon any order for that purpose being made, and so long as the same shall remain in force, the same shall be binding and obligatory upon the father, and upon every testamentary or natural guardian of such infant, and no person or persons shall be entitled to use or exercise any power or control over such infant which may be inconsistent with such order: (3 & 4 Vict. c. 90, s. 1.) (6) No Fees to he taken. No fee, reward, emolument, or gratuity whatsoever shall be demanded, taken, or received by any officer or minister of the [court] for any matter or thing done in the said court in pursuance of [the] Act, and .... upon the making or opposing of any such application it shall be lawful for any judge of the said court to assign counsel leanjed in the law, and to appoint a clerk or practitioner of the said court to advise and carry on or to oppose such application, who are hereby required to do their duties therein without fee or reward : (3 & 4 Vict. c. 90, s. 3.) (c) Order to Provide for keeping within Jurisdiction. In every case it shall be a part of the terms and conditions upon which such care and custody shall be assigned, that the infant shall not, during the period of such care and custody, be sent beyond the seas, or out of the jurisdiction of [the court] : (3 & 4 Vict. c. 90, s. 2.) (d) Conviction not Affected. Nothing in [the] Act contained shall affect or in any manner interfere with the execution of the sentence which may have been passed upon such infant upon his or her conviction : (3 & 4 Vict. c. 90, s. 4.) (e) Costs. [The court] shall and may award such costs as to it may seem fit against any such person or persons who shall make such application as aforesaid, if such application shall not appear to the said court well founded .... and such costs shall be payable to any parent, or other natural or testamen- tary guardian, of any such child, who shall oppose such application : (3 & 4 Vict. c. 90, s. 1.) 426 Infants. (/) Bescinding Order. The said couirt may at any time rescind such assignment, or from time to time rescind, alter, or vary any such terms or conditions, or such regula- tions, as to the said court may seem fit : (3 & 4 Yict. c. 90, s. 1.) V. APPRO YAIi OF MARRIAGES, UNDER 4 Geo. 4, c. 76. In case the father of [an infant is] non compos mentis, or the guardian .... or mother .... whose consent is ... . necessary .... is non compos memiis, or in parts beyond the seas, or .... unreasonably or from undue motives refuse or witKhold .... consent to a proper marriage .... in case the marriage proposed .... appear proper .... [the court] shall judicially declare the same to be so : (4 Geo. 4, e. 76, s. 17.) The section does not apply in case of a father beyond the seas or unreasonably withholding consent : (Dan. 1209.) The application is by petition of the party desirous of marrying : (4 Geo. 4, c. 76.) The court either makes the declaration without inquiry, adjourns petition to chambers generally, or directs inquiries to be made : (Dan. 1209.) YI. CARE OF INFANTS' ESTATES. 1. JUBISDICTION. Causes and matters relating to the_ care of infants' estates are ejcpressly assigned to the Chancery Diyision : (J. A. 1873, s. 34.) YI. MAINTENANCE. (a) Dividends from Stock. ITie court .... may, by an order to be made on the petition of the guardian of an infant, in whose name any stoci [is] standing, or any sum of money, by -virtue of any Act for paying ofE any stock, and. who [is] beneficially entitled thereto ; or if there .... be no guardian, by an order to be made in any cause depending in the said court, direct all or any part of the dividends due or to become due in respect of such stocks or any such sum of money, to be paid to any guardian of such infant, or to any other person, according to the discretion of such court, for the mainten- ance and education, or otherwise for the benefit of such infant, such guardian or other person to whom such payment [is] directed to be made being'named in the order directing such payment : (11 Geo. 4 & 1 Will. 4, c. 65, s. 32.) The receipt of such guardian or other person, for such dividends or sum of money, or amy part thereof [is] as effectual as if such infant had attained the age of twenty-one years, and had signed and given the same : An order was made relating to stock bequeathed by a Spanish wiU : {Bamon v. Bamon,, 39 L. T. Rep. N. S. 532 ; 27 W. R. 260.) (6) Other Cases. ' Where there is a fund in or under the control of the court, belonging to an infant, or the income of which is applicable for his maintenance, such maintenance may be ordered: (Dan. 1W8.) Where there is property vested .in trustees in which infants are intended, and there is no express or statutory power of maintenance, it may be ordered : (Dan. 1199.) If there is a trust for maintenance it is unnecessary to show that the father is in distressed circumstances. Otherwise the court directs a reference as to his ability to support the infant : (Ayck. 591.) Infants. 427 (c) Application. The application, where not made under 11 Geo. 4 & 1 WUI. 4, c. 65, s. 32, is by ordmary summons when a suit or matter is pending, and in other cases by original summons : (see Ohambeks.) (d) Service. The summons must be served on the trustees or other persons interested in the fund : (Dan. 1201.) (e) Evidence. The evidence must show that the income or corpus of the fund is applicable for the purpose : (Dan. 1201-2.) A scheme showing the heads of intended expenditure should be put in evidence : (Dan. 1202.) (/) Order. The order should state it if it intended that payments are to be free from income tax : (Id.) ig) Where Capital Applied. The capital may be applied where the infant has no other means, or it is necessary for the infant's advancement : (Dan. 1201.) The court may charge the expenses of past maintenance, and the costs of the application on the corpus of an estate to which the infant is entitled in fee : (Be Sowarth, L. Rep. 8 Ch. App. 416.) (h) Increasing Allowance. The application is by ordinary summons, supported by affidavit showing the necessity for the increase, and to be served on the trustee or other persons mentioned, sup. . (Dan. 1202.) 3. Advancement. (a) Where Ordered. Where the fund is in court, or the infant is a ward, or the administration of his estate, or his maintenance, is under the direction of the court, a sum may be ordered by way of advancement : (Dan. 1203.) (6) Application. The application is by summons : (Id.) (c) Evidence. The summons is supported by evidence, showing the amount required to be advanced, the wishes of the infant, and his fitness for the intended occupation : (Id.) Where he is to be articled or apprenticed, the master's respectability and the propriety of the proposed premium are proved : (Id.) 4. SUEEENDEB BY AND RENEWAL TO InFANT LESSEES. (a) Power to Order. An infant .... entitled to any lease or leases .... for the life of one or more person or persons, or for any term of years, either absolute or determin- able upon the death of one or more person or persons, or otherwise .... or his or her guardian [or any person appointed by the court in the place of such infant] [may] by the order and direction of [the court] be enabled from time to time, by deed or deeds, to surrender such lease or leases, and accept and tate, in the place and for the benefit of such [infant] one or more new lease or leases of the premises .... for and during such .... lives .... or for such .... terms .... as [the court directs] : (11 Geo. 4 & 1 WiU. 4, c. 65, s. 12.) (6) Application. The application may be made by the infant, his guardian, or other person on his behalf, by petition or motion in a summary way, ot by summons where the infant is a ward of court, or the administration of 428 Infants. Ms estate, or Ms maintenance is nnder the court's direction : {lA. ; Dan. 1917.) (c) Expenses of Renewal. Every sum of money and other consideration paid by any guardian [or] trustee, or other person as a fine, premium, or income, or in the nature [thereof], and all reasonable charges iacident thereto [are to] be paid out of the estate or effect of the infant .... or [to] be a charge upon the leasehold premises, together with interest for the same as the [court directs] : (11 Geo. 4 & 1 WiU. 4, c. 65, s. 14.) 5. Renewal by Infant Lessors. (a) Where Ordered. Where any [infants] might, in pursuance of any covenants or agree- ment, if not under disability, be compelled to renew any lease [for lives or years] such infant, or Ms guardian in the name of such infant .... [may] by the direction of the court .... signified by an order .... accept of a surrender of such lease, and .... make and execute a new lease of the premises .... for [such lives or term] as the court by such order [directs] : (11 Qeo. 4 & 1 WUl. 4, c. 65, s. 16.) (6) Application. The application is by the infant, guardian, or persons entitled to renewal, by petition, or where the infant is a ward, or the administra- tion of his estate or his maintenance is under the court's direction, by summons : {Id., Dan. 1919.) (c) Premiums. AH fines, premiums, and sums of money .... on account of ... . renewal .... after deduction of aU necessary incidental charges and expenses .... [are] paid .... to [the] guardian, and .... applied for the benefit [of the] infants in such manner as the court [directs] : (11 Geo. 4 & 1 Wm. 4, c. 65, s. 21.) 6. Leases by Infants. (o) Where Ordered. Where any .... infant is ... . seised or possessed of or entitled to any land in fee or in tail, or to any leasehold land for an absolute interest, and it [appears] to the court ... to be for the benefit of such person, that a lease or underlease should be made of such estates for term of years, for encouraging the erection of buildings thereon, or for repairing buildings actually being thereon, or the working of mines or otherwise improving the same, or for farming or other purposes, such infant, or his guardian in the name of such infant [may], by the direction of the court .... to be signified by an order, make such lease of the lands of such person respectively, or any part thereof according to Ms or her interest therein respectively, and to the nature of the tenure of such estates respec- tively, for such term or terms of years, and subject to such rents and covenants as [the] court [directs] but in no such case [is] any fine or premium [to] be taken, and in every such case the best rent that can be obtained, regard being had to the nature of the lease [is to] be reserved : (11 Geo. 4 & 1 Will. 4, c. 65, s. 17.) No lease [is to] be made of the capital mansion house and the park and grounds respectively held therewith for any period exceeding .... minority : {Id.) The infant need not be seized of an indefeasible estate in fee simple or fee tail. Leases have be.en granted when the fee was defeasible in certain events, and where the estate was subject to the father's tenancy by the Infants. 429 curtesy : {Re Letchford, L. Rep. 2 Ch. Div. 719 ; 45 L. J. 530, Ch. : Seton, 744.) ' (5) Application. . The application may be made by the infant, or his guardian by petition (11 Geo. 4 & 1 Wm. 4, c. 65, s. 17), or by summons on behalf of such infant if he is a ward, or the administration of his property, or his main- tenance is under the direction of the court : (0. O. 35, r. 1.) (c) Conditional Contract. GreneraUy a conditional contract is entered into before application is made : (Dan. 1920.) (d) Order. On petition, if the court is satisfied, that the lease is for the infants' benefit, an order is made directing the contract to be carried into effect, and the lease to be settled [see Deeds]. If not satisfied, the court may direct an inquiry, or may adjourn the petition to chambers, and approve the lease there. On summons, the contract may be affirmed, and the lease ordered to be executed by the same order : (Dan. 1920.) (e) Settling Lease. The lease and covenants and provisions therein [will] be settled by [the judge] : {Id., 15 & 16 Vict. c. 80, s. 36.) (/) Counterpart. A counterpart [is] executed by the lessee : (11 Geo. 4 & 1 WiU. 4, c. 65, s. 17.) OoTm^terparts shall be deposited for safe custody in the [Central Office], until [the infant attains] twenty-one, but with liberty to proper parties to have the use thereof, if required, in the meantime, for the purpose of enforcing any of the covenants therein contained : {Id., J. A. 1879.) 7. Sanctioning Settlements under 18 & 19 Vict. c. 43. {a) Power to Sanction. Every infant [who has attained the age, if a male of twenty years, or, if a female, of seventeen years, may] upon or in contemplation of his or her marriage, with the sanction of the court .... make a valid and binding settlement or contract for a settlement of all or any part of his or her property, or property over which he or she has any power of appoint- ment, whether real or personal, and whether in possession, reversion, remainder, or expectancy ; and every conveyance, appointment, and assign- ment of such real or personal estate, or contract to make a conveyance, appointment, or assignment thereof, executed by such infant, with the approbation of the .... court, for the purpose of giving effect to such settlement, [is] as valid and effectual as if the person executing the same were of the full age of twenty-one years : (18 & 19 Vict. c. 43, s. 1.) [The] enactment does not extend to powers of which it is expressly declared that they [are not to] be exercised by an infant : {Id.) In case any appointment under a power of appointment, or any disentail- ing assurance [has] been executed by any infant tenant in tail under the provisions of [the] Act, and such infant afterwards [dies] under age, such appointment or disentailing assurance thereupon becomes absolutely void: {Id.) A post-nuptial settlement may be sanctioned in the case of a ward, but not of any other infant married at a competent age : (Dan. 1212.) (6) Application. The sanction of the court .... to any such settlement- or contract for a settlement may be given, upon petition presented by the infant or his or 430 Infants. her guardian, in a summary way, without the institution of a suit : (18 & 19 Vict. c. 43, s. 3.) A petition is neces^ry though a suit has been instituted : (Dan. 1212.) If there be no guardian, the court may require a guardian to be appointed or not, as it shall think fit : (18 & 19 Yict. c. 43, s. 3, and see sup.) A petition by a next friend on behalf of an infant is improper : {Be Potter, L. Rep. 7 Eq. 484.) (c) Ordering Service of Petition. The court .... may, if it shall think fit, require that any persons interested or appearing to be interested in the property should be served with notice of the petition : (18 & 19 Vict. c. 43, s. 3.) (d) Adjowrnrnent to Chambers. On the petition being opened in court, it is usually at once adjourned to chambers : (Dan. 1212; Seton, 766.) (e) Summons to Proceed. A summons to proceed is taken out [see Chambbbs.] (/) Evidence and Proposals. [At the return of the summons to proceed] evidence is to be produced to show — 1. The age of the infant. 2. Whether the infant has any parents or guardians. 3. With whom or under whose care the infant is Hving, and if the infant has no parents or guardians, what near relations the infant has. 4. The rank and position in life of the infant and parents. 5. What the infant's property and fortune consist of, 6. The age, rank, and position in life of the person to whom the infant is about to be married. 7. What property, fortune and income such person has. 8. The fitness of the proposed trustees and their consent to act : (Ch. Reg. Aug. 1857, r. 20.) The proposals for the settlement of the property of the infant, and of the person to whom such infant is proposed to be married, are to be sub- mitted to the judge : (Id.) The court need not inquire into the propriety of the proposed marriage, except in the case of a ward of court : (Dan. 1213.) {g) Settlement. The judge considers the proposals for the settlement, and, if they are approved, a direction is given for preparation of a settlement in conformity with the proposals (Ayck. 593) with or without the conveyancing counsel's assistance : (Dan. 1213.) The draft is prepared by the lady's solicitor with or without such assis- tance, and the chi^ clerk initials the engrossment : (Dan. 1213 ; and see Conveyancing Counsel ; Deeds.) The court has ordered a name and arms clause to be inserted in the settlement : {Be Williams, 8 W. R. 678; cited Dan. 1213-4.) (h) Order. After the engrossment is signed, the chief clerk prepares a minute of the order, which directs execution of the settlement by the parties : (Dan. 1214; but see Seton, 755, 766.) Whenever the dealing by the Chancery paymaster with money or securities in court is, by an order, made contingent upon the execution of some document, the document shall be described, and the parties thereto by whom it is to be executed shall be named in an order or in a certificate Infants — Injunction. 431 .... of a chief clerk. The execution of such document shaU be certified " ;■",: ^^* ""'^^ ®^®''-'^' °^ "^^y "'^ verified by affidavit, if the order by which such execution is required shall so direct : (Oh. P. R., 1874, r. 11.) The order is drawn up by the registrar : (Dan. 1214.) INJUNCTION. I. EESTRADflNG PEOCEEDINGS. 1. Not generaiiLT AiiLowed. 2. Exceptions. (a) By Court of Ba/rikrv/ptcy. (b) By Mxchequer Division in Bevenite Oases^ n. JUEISDICTTON IN OTHER CASES. in. WEIT. IV. INTEELOCTJTOET iNJDNCTIONS. 1. Power to Gbant [see siup. II.] 2. Where Application made. 3. By whom Application made. 4. How Application made. 5. When Application made. 6. Evidence. 7. Order. 8. Undertaking as to Damages. 9. Notice and Service oe Order [see post. V. 2]. 10. Costs op Interlocutobt Motion. 11. Discharging Order. V. INJUNCTION AT HEABING. 1. Form in which Issued. 2. Notice and Service. VI. DAMAGES DST LIEU OF INJUNCTION. VII. ADDING NEW PAETIES AFTEE JUDGMENT. Vin. BEEACH OF INJUNCTION. I. RESTRAINING PROCEEDINGS. 1. Not GekebaTiT.y Ailowbd. No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction ; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained [if the Judicature Act, 1873] had not been passed, either uncon- ditionally or on any terms or conditions, may be relied on by way of defence thereto : (J. A., 1873, s. 24, sub-sect. 5 ; and see Stating Peocebdings ; Teansfbe.) Where goods were taken in execution under afi.fa., the sheriff took out an interpleader summons in the Common Pleas Division, upon which an order was made that in default of payment being made, he should sell and pay the proceeds into court, and that the parties should proceed to the trial of an issue as to the title to the goods, and the sheriff advertised the goods for sale, an injunction to restrain the sheriff from selling the goods or remaioing in possession of them, granted by Malins, V.C., in an action concerning the goods, was held, on appeal, to be inconsistent with the Judicature Act, 1873, and discharged: {Wright v. Bedgrave, L. Rep. 11 Ch. Div. 24; 40 L. T. Rep. N. S. 206 ; 27 W. R. 662.) 432 Injunction. 2. Exceptions. (a) Sy Court of Bankruptcy. The Court of Bankruptcy may restrain actions and other proceedings in the Chancery Division : {Ex parte Ditton, Be Woods, L. Rep. 1 On. Div. 557 ; 34 L. T. Bep. N. S. 109 ; 45 L. J. 87, Bk. ; 24 W. E. 289.) (6) By Exchequer Division in Revenue cases. The Exchequer Division may, on an application on behalf of Her Majesty, restrain, by injunction, actions commenced in other divisions of the High Court of Justice touching the revenue of the Crown : (Attorney- Generdl v. Constable, L. Rep. 4 Ex. Div. 172; 48 L. J. 455, Ex.; 27 W. R. 661.) 11. JURISDICTION IN OTHER CASES. An injunction may be granted ... by an interlocutory order of the Court in all cases in which it shall appear to the court to be just or con- venient that such order should be made ; and any such order may be made either unconditionally or upon such terms and conditions as the court shaU think just : (J. A., 1873, s. 25, sub-sect. 8.) Any injunction which can be granted by interlocutory order can, a fortiori, be granted at the trial : {Beddow v. Beddow, L. Rep. 9 Ch. Div. 89 ; 47 L. J. 588, Oh. ; 26 W. R. 570.) 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 : (J. A., 1873, s. 25, sub-sect. 8.) In ascertaining what is " just," regard must be had to what is " con- venient:" {Beddow v. Beddow, sup.; Day v. Brovmrigg, L. Rep. 10 Ch. Div. 307 ; 39 L. T. Rep. N. S. 645 ; 48 L. J. 173, Ch. ; 27 W. R. 217.) Per James, L.J. (in Day v. Brownrigg, sup.), and per Thesiger, L.J. (in Gaskin v. Balls, L. Rep. 13 Oh. Div. 324), the words do not in the least alter the principles on which the court should act. Per Quain, J. the words must be interpreted by reference to the practice of the Court of Chancery {Hahershon v. Gill, W. N. 1876, p. 231), the jurisdiction of which was limited by the practice of different Chan- cellors (per Jessel, M.R., Beddow v. Beddow, sup.), though it included the granting of injunctions to restrain the committing of waste or injury to property, especially where it was irreparable, as cutting ornamental timber; to restrain the publication of documents to the injury of reputation ; to restrain applications to Parliament, &c. (Ayck. 9th edit. 282-3 ; and see Kerr on Injunctions; Joyce on Injunctions), but where there was an entire want of priority between plaintiff and defendant, and the defendant was simply a wrong-doer at law, the Court of Chancery only interfered in very exceptional cases : {Earl Talbot v. Sope Scott, 4 K. & J. 96 ; London amd North-Western Railway Company v. Lancashire and Yorkshire Railway Corrvpany, L. Rep. 4 Eq. 174.) Per Jessel, M.R. the Chancery Division has unlimited power to grant any injunction which any of the courts, whose jurisdiction was transferred to the High Court of Justice, might grant, that is, where it is right and just ; and what is right or just is to be decided, not by caprice of the judge, but according to sufficient legal reason or on settled legal principles : {B^dow V. Beddow, sup.) And the ancillary remedy by injunction to protect a right is a mode of Injunction. 433 prerenting that being done which if done would be an offence. Whenever an act is illegal, and is threatened, the court wiU interfere and prevent the act being done, and will grant an injunction either when the illegal act is threatened but has not been actually done, or when it has been done aud seemingly is intended to be repeated : (Per Jessel, M.R. Cooper v. Whittingham, 43 L. T. Rep. N. S. 16 ; 28 "W. R. 720.) Per Fry, J. the words of the section enlarge, rather than diminish, the arm of the court in respect of injunction : {Thomas v. Williams, 43 L. T. Rep. N. S. 94 ; 49 L. J. 606, Ch.) £i all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may claim [an] injunction against the repetition or continuance of such breach of contract or other injury, or the committal of any breach of contract or injury of a lite kind, arising out of the same contract, or relating to the same property or right : (C. L. P. A., 1854, s. 79 ; Beddow v. Beddow, sup.) ^ In such action judgment may be given that the .... injunction do or do not issue, as justice may require : (C. L. P. A. 1854, s. 80.) Libels affecting property and trade may be restrained : {Id. ; Thorley's Cattle Food Company v. Massam, L. Rep. 14 Ch. Div. 763 ; 42 L. T. Rep. N. S. 851 ; 28 "W. R. 295 ; and see Saxby v. Easterbrook, L. Rep. 3 C. P. Div. 339.) An injunction claimed in aid of a legal right wiU not be refused for delay, unless the plaintiff is barred by the Statute of Limitations : {Fuh toood V. Fulwood, 38 L. T. Rep. N. S. 380; 47 L. J. 459, Oh. ; 26 W. R. 435.) Where the court has power to grant a prohibition to an inferior court it may grant an injunction instead, and, as it is shorter and cheaper, will do so : {Sedley v. Bates, L. Rep. 13 Ch. Div. 492 ; 42 L. T. Rep. N. S. 41 ; 28 W. R. 365.) As to granting injunctions to restrain building which will interfere with lights in a building erected in place of one pulled down containing ancient lights, see Ecclesiastical Com/missioners v. Kino (W. N. 1880, p. 42.) K a defendant, in an action to restrain bmlding interfering with the plaintiff's lights, erects any building after commencement of the action or notice not to do so given by the plaintiff, the court may order the buildings to be pulled down, though no undertaking to pull them down has been given : {Smith v. Day, L. Rep. 13 Ch. Div. 651.) If no complaint has been made the court will rarely interfere to pull down a building : {Gaskin v. Balls, sup.) In cases of obstruction to ancient lights, the question whether a manda- tory injunction will be granted to compel the removal of the obstruction depends on whether the damages which would be granted in lieu of an injunction would or would not be substantial. Where the total damages recoverable for such an obstruction, coupled with two other causes of complaint, amounted to less than 20Z., it was held that the damages were not substantial, and that no injunction could be granted, but only damages : {Webster v. Whemoall, 42 L. T. Rep. N. S. 868 ; and see, on the question of substantial damage, Aynsley v. Glover, L. Rep. 10 Ch. App. 283 ; 31 L. T.Rep. K S. 219.) Property, which is the subject of an action, may be preserved, under 0. LII., r. 3, by means of an injunction : {Strelley v. Pea/rson, 43 L. T. Rep. N. S. 155.) Proceedings in a foreign court wiU not be restrained for mere hardship or inconvenience : {Fletcher v. Bodgers, 27 W. R. 97.) 434 Injunction. III. WRIT. Where the injunction is a substantial object of the action, the writ should be indorsed with a claim for the injunction : {Colebov/rne v. CoU- bourne (L. Rep. 1 Ch. Div. 690.) An injunction may, however, be granted though not claimed by the writ : {Norton v. Gover, W. N. 1877, p. 206.) If the injunction be claimed as well as other relief the indorsement to be added is : " And for an injunction " : (App. A. to Rules of 1875, p. ii., s. 4.) IV. INTERLOOUTOBT INJUNCTIONS. 1. Power to Grant. [See sup. II.] 2. Where Application Made. The application must, subject to the power of transfer, be made iu the division of the court to which the action is attached (J. A. 1875, s. 11, sub-s. 1; see Action); and to the judge to whose court the action is assigned. 3. By whom Application Made. An application .... may be made to the court or a judge by any party : (O. LII., r. 4.) A mortgagor may maiutain an action for an injunction without joining the mortgagee: (Fairclough v. Marshall, L. Rep. 4 Ex. Div. 37; 39 L. T. Rep. N. S. 389; 48 L. J. 146, Ex.; 27 W. R. 145.) 4. How Application Made. If the application be by the plaintiff ... it may be made either ex parte or with notice, and if it be by any other party, then on notice to the plaintiff, and at any time after appearance by the party making the application : (O. LII., r. 4.) The application is generally by motion in court : (English v. Vestry of Camherwell, W. N. 1876 ; p. 256.) The order will not be granted on an ex parte application except in cases of urgency : {Tozer v. Walford, W. N. 1876, p. 250 ; Blewitt v. DowUng, Id., 202.) And an ex parte application is improper, where notice has been given: (see post, 7). If notice to the defendant is considered necessary, leave of the court may be obtained ex parte to serve the writ, and notice of motion for an injunction at the same time and for a particular day : (Jarm. 70.) 6. When Application Made. As to defendant's application, see sup., 4. He may obtain an order before judgment : (Sargant v. Bead, L. Rep. 1 Ch. Div. 602 ; 45 L. J. 206, Ch.). The court often grants an injunction on the plaintiff's application before service of the writ : (BeH.'s Estate, L. Rep. 1 Ch. Div. 276.) Acquiescence or delay is sometimes sufficient to take away the plaintiff's right to an order, his relief being in that case postponed Aill the hearing ; and therefore the application should be made at the earliest moment after the writ is issued : (Ayck. 285 ; Jarm. 64.) A plaintiff is not bound to move till the hearing of the action ; and his ■delay until then is not such acquiescence as will disentitle him to relief : (Davies v. Marshall, 4 L. T. Rep. N. S. 105.) ' The Court of Chancery, in cases of injunction to stay waste, gave leave io serve liotice of motion before the bill was filed : (Id. 286.) Injunction. 435 6. Byidence. The evidence is generally by affidavit. The affidavit should be made by the plaintiff himself, and on an ex parte application all material facts should be stated : (Ayck. 286.) Statements as to belief, with the grounds thereof, may be admitted : (0. xxxvn., r. 3.) The affidavit must not be sworn till after the writ is issued : (Ayck. 286.) It should be filed, and an office copy obtained before motion made : (Id.) If the affidavit cannot be filed, or the order drawn up the day it is granted, an order should be obtained on motion, that the affidavit shall be filed as of the date of the day on which the order was pronounced. In the case of an ex parte application for an injunction .... the party making such appUeation is to furnish copies of the affidavits upon which it is granted upon payment of. the proper charges immediately upon the receipt of [a] written request and undertaking [to pay the proper charges] or within such time as may be specified in such request, or may have been directed by the court : (Add. R. Aug. 1875, O. V., r. 10.) 7. Oedbe. [The] order may be made either conditionally or upon such terms and conditions as the court shall think just : (J. A., 1873, s. 26, sub-sect. 8.) Where notice of motion has been given it is improper to grant an injunction ex parte, though pressure of business of the court may prevent the motion on notice being brought on : {Graham v. Campbell, L. Bep. 7 Ch. Div. 490 ; 38 L. T. Bep. N. S. 195 ; 47 L. J. 593, Oh. ; 26 "W. B. 336.) Where an order is made on an ex parte motion it will generally be only till over next motion day : (Bolton v. London School Board, L. Bep. 7 Ch. Div. 766 ; 47 L. J. 461, Ch.) Where both plaintiff and defendant have applied for the same order, one order will be made, the conduct of proceedings being generally given to the plaintiff : (8arga/nt v. Bead, sup.) In an action to enforce his lien by an unpaid purchaser of land taken by a railway company for the purposes of their undertaking, the court will not grant an injunction before judgment has been obtained in the action, even though the company admit theur liability : {Latimer v. The Aylesbury amd Buckingham Railway Company, L. Rep. 9 Ch. Div. 385 ; 39 L. T. Rep. N. S. 460.) [And see Inteelocittoet Peocebdings.] Where the plaintiffs motion is dismissed, and he discontinues the action, he is not thereby estopped from obtaining an injunction in a subsequent action : {Massam v. Thorley's Cattle Food Company, L. Bep. 14 Ch. Div. 751.) 8. Undeetaking as to Damages. An interlocutory judgment ought to be made upon an undertaking to abide by any order of the court as to damages resulting from the other party being restrained : {Graham, v. Campbell, sup.) The coi^ refused to grant an interlocutory injunction at the instance of the Secretary for War, unless the plaintiff would give the usual under- taking : .{8eereta/ry for War v. Chubb, W. N. 1880, p. 128 ; 43 L. T. Bep. lir.S.83.) Where an interlocutory injunction is granted to restrain a bmlding which, it is alleged, will interfere with the plaintiff's light, and the defendant stops building till the trial, when it is found that the bmlding F F 2 436 Injunction. wotild not have interfered with the lights, he is entitled to damages : (per Jessel, M.R., W. N., 1879, p. 74.) 9. Notice and Seetice of Oedee. [Seejpogi, V. 2.] 10. Costs of Inteeloctjtoet Motion. Where the plaintiff's motion for an interim injunction was ordered to stand over tUl the trial of the action, no order being made as to costs, and at the trial the judge awarded the plaintiff damages in lieu of an injunc- tion, and ordered the defendant to pay the plaintiff's costs of action, the order reserving liberty to apply, the judgment as passed and entered being silent as to the costs on the previous motion, it was held that the court might order the costs of the motion to be paid by the defendant : {Fritz y. Sobson, L. Rep. 14 Ch. Div.542; 42 L. T. Rep.N. S. 677; 28W.R.469.) 11. Dischaeginu Oedee. An application to discharge an order for an injunction, whatever the ground may be, is by motion on notice : (Ayck. 289.) If the facts are complicated the application may be by petition: (Ayck. 289, citing Bourbaud v. Bowrbaud, 12 W. R. 1024.) The application must be supported by affidavit. [And see Reheaeing.] 12. Continuing Injunction. Notice of motion to continue the injunction ought to be given for the motion day over which the injunction has been granted: {Bolton v. London School Board, svp.) V. INJUNCTION AT HEARING. 1. Poem in which Issued. No writ of injunction shall be issued. An injunction shall be W a judgment or order, and any such judgment or order shall have the effect which a writ of injunction previously had : (O. LII., r. 8, April, 1880.) 2. Notice and Seevioe. As soon as the judgment or order has been pronounced, the party obtaining it should serve a notice on the opposite party, personally, stating that the injunction has been granted, and that the order or judg- ment will be served as soon as it is ready : (Ayck. 288.) As to service of the judgment or order, see Execution, XX., 2 ; XXI., 3. VI. DAMAGES IN LIEU OP INJUNCTION. The High Court of Justice and Court of Appeal .... have power to grant, and shall grant, either absolutely, or on such reasonable terms and conditions as ... . shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respec- tively in such cause or matter : (J. A. 1873, s. 24, sub-sect. 7.) In all cases in which the i . . . Chancery [Division] has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the court shall direct : (21 & 22 Vict. c. 27, s. 2.) Injunction. 437 The Act still applies : {White v. Bohy, 37 L. T. Rep. N. S. 625 ; Kino V. Buctkin, L. Rep. 6 Ch. Div. 160 ; National Provincial Plate Glass Insurance Company v. Prudential Assurance Com/pany, L. Rep. 6 Oh. Div. 761 ; Krehl v. Burrell, 38 L. T. Rep. N. S. 407 ; L. Rep. 7 Oh. Div. 651 ; Fritz v. Eolson, L. Rep. 14 Oh. Div. 542 ; 42 L. T. Rep. N. S. 255; 28 W. R. 459.) Where damages are claimed in substitution for an injunction to restrain a wrongful act commenced before the issue of the writ and continued afterwards, if the wrongful act has come to an end before the trial the court has jurisdiction, under the Act, to assess the whole of the damages accrued : [Davenport v. Bylands, L. Rep. 1 Bq. 302 ; Fritz v. Sohson, sup.) VII. ADDING NEW PARTIES AFTER JUDGMENT. Where an injunction was granted, but its operation was suspended for five years, to give the defendants time to prevent the nuisance, and in the meantime, by Act of Parliament, a new local body was created, upon whom devolved all the duties and liabilities of the old defendants, a summons by the plaintiffs at the expiration of the five years, for leave to amend the bill by adding the new body as defendants, was dismissed : {Attorney-General v. Council of Birmingham, 43 L. T. Rep. N. S. 77.) Vni. BREAOH OE INJUNCTION. In case of a breach of an injunction, the plaintiff may move on notice to commit the offending party : (see Execution.) The court may enforce the order by attachment : (0. L. P. A. 1854, s. 82 ; Beddow v. Beddow, sup.) Where the disobedient party is a person entitled to privilege (see Akkest) or a corporation, the proper process is sequestration, not attach- ment or committal : (see Execution.) To found an application for committal, snfB.cient notice of the granting of an injunction may be given by telegram ; but, if it is sought to commit for contempt a person who, after receiving such a notice, disregards it, the court must decide upon the particular facts whether he had in fa«t notice of the injunction, and it is the duty of those who ask for the committal to prove this beyond reasonable doubt : {Ex parte Lamgley, L. Rep. 13 Ch. Div. 110 ; 41 L. T. Rep. N. S. 388.) When the contemner swore that, though he had received notice by telegram, he bona fide believed that no injunction had been granted, the Court of Appeal refused to commit him : {Id.) If the notice is given to the solicitor of the party restrained, in the country, he ought to telegraph to the solicitors of the other party to inquire whether the telegram is a forgery : (per Jessel, M.R., Tonkinson V. Cartledge, 69 L. T. 229.) Where a person was in court when the order was pronounced, or if he was in court when the order was about to be pronounced and then went away, he need not be served with notice or a copy of the order before motion to commit : (Dan. 1534.) And he may be committed, if he was informed of the order, if there has been no neglect in drawing up, and serving a copy of the order : {Id.) Where on motion for injunction to restrain publication of a cautionary advertisement, or any other of a like nature, as calculated to injure the plaintii's business, the defendant undertook until the trial not to issue the advertisements, and afterwards published in a newspaper a notice of the hearing of the motion, and of his undertaking, which virtually repeated the caution, it was held that he had not thereby committed a 438 Injunction — Inquiries. contempt of court : {The Buenos Ayres Gas Company v. Wilde, 42 L. T. Rep. N. S. 657.) INQUIRIES. I. DIRECTING AT ANT STAGE. n. AS TO DAMAGES. 1. BBroKB Mastek. 2. On Wbit of Inquikt. (a) Where Writ issued. (b) Priempe. (c) Form. {d) Before Whom emcuied. (e) Notice of Inquiry. (/) Cowntermand Notice of Inqwiry. (g) Leaving with Sheriff. (h) Execution of Writ. (i) Return of Writ. (k) Setting aside Inqwisition, Staying Judgment, ^c. (J) Fi/nal Judgment a/nd Execution. III. BEFORE DISTRICT REGISTRAR [see Dibtkict Reoistbies]. IV. BEFORE REFEREE [see Reeesee]. I. DIRECTING AT AJS"Y STAGE. The court or a judge may, at amy stage of the proceedings in a cause or matter, direct any necessary inquiries .... to be made .... notwith- standing that it may appear 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 cause or matter should proceed in the ordinary manner: (O. XXIII.) As to how the order is worked out, see Ohambeks. As to ordering further iuquiries, see 0. O. 35, r. 19, cited swp., p. 15. II. AS TO DAMAGES. 1. BErOKE Mastee. In actions in which it shall appear to the court or a judge that the amount of damages sought to be recovered by the plaintiff is substantially a matter of calculation, it shall not be necessary to issue a writ of inquiry, but the court or a judge may direct that the amount for which final judg- ment is to be signed snail be ascertained by one of the masters of the said court : (C. L. P. A._, 1852, s. 94.) The order is obtained on summons supported by affidavit of the facts : (Oh. Archb. 806.) After order made an appointment must be obtained from the master : (Id.) A copy of the order and appointment must be served a reasonable time before the time appointed : (IS.) ' The attendance of witnesses and the production of documents before such master may be compelled by subpoena .- (0. L. P. A., 1852, s. 94.) It shall be lawful for such master to adjoxirn the inquiry from time to time, as occasion may require ; and the master shall endorse upon the rule or order for referring the amount of dataages to him the amount found by him, and shall deliver the rule or order with such indorsement to the plaintiff ; and such and the like proceedings may thereupon be had as to taxation of costs, signing judgment, and otherwise, as upon the finding of Inquiries. 439 a jury upon a writ of inquiry: (0. L. P. A., 1852, s. 94; and see post, 2.) On a reference to the master to ascertain the amount for which final judgment is to be signed, the master's certificate shall be filed in the office when judgment is signed : (R. Gr. H. T. 1853, r. 171.) 2. On Writ of Inquiry. (o) Where Writ Issued. Where interlocutory judgment for damages is recovered, a writ of inquiry is issued : (Oh. Arch. 802 ; and see Jttdgmbnt.) (6) Prcecipe. The form of praecipe is given in Schedule B. 11 to the Rules of April, 1880. (c) Form. The form of writ is given uuSchedule Gr. 7 to the Rules of April, 1880. A memorandum must be endorsed of the day on which the writ is to be executed : (Oh. Arch. 808.) The writ is returnable on any day certain in term or vacation : (1 WUl. 4, c. 7, s. 1.) The return day must not be before that on which the writ is to be executed : (Oh. Arch. 808.) (d) Before whom Executed. The writ is usually executed before the sheriff or his deputy : (Oh. Arch. 809.) In case of difficulty an order may be obtained on motion on notice, or summons, for an order for the writ to be executed before a judge of the High Court in London or Middlesex, or as assistant to the sheriff in any other county : (Id.) (e) Notice of Inquiry. Written notice of inquiry must be given to the defendant : (Oh. Arch. 809.) Notice of ... . inquiry, and of continuance of inquiry, shall be given in town ; but countermand of notice of ... . inquiry may be given either in town or country, unless otherwise ordered by the court or a judge : (E. G. H. T. 1853, r. 34.) Ten days' notice of trial or inquiry shall,be given, and shall be sufficient in all cases, .... unless otherwise ordered by the court or a judge : (0. L. P. A. 1852, s. 97.) If the writ is to be executed before a judge the notice is general as in case of a notice of trial: (Ch. Arch. 811.) If before sheriff, a day certain must be named, and a time, generally between two certain hours : (Id.) (/) Countermand Notice of Inquiry. Countermand of notice of inquiry shall be given four days before the day of inquiry mentioned in the notice, unless short notice of inquiry has been given, and then two days before sCich day, unless otherwise ordered by the court or a judge, or by consent : (R. G. H. T. 1853,.r. 37.) [n the plaintiff g^ve notice of trial on delivering his reply, and] issue is not joined on such [reply] or other subsequent pleading, and the plaintiff [signs] judgment for want thereof, and forthwith gives notice of exe- cuting a writ of inquiry, such notice shall operate from the time that notice of trial was given as aforesaid: (O. XXXVI., r. 3; R. Gr. H. T. 1853, r. 40.) Under the former practice notice of executing a writ of inquiry might 440 Inquiries — Interlocutory Proceedings. also be given on the back of a plaintiff's demurrer to a defendant's plea in bar, rejoinder, &o. : (see R. G. H. T. 1853, r. 40.) (jr) Leaving with Sheriff. The writ must be left with the sheriff two days at least before it is to be executed, if to be executed in the country, and .one day at least, if to be executed in London or Middlesex : (Oh. Aichb. 808.) (h) Execution of Writ. The inquest takes place nearly in the same manner as on a trial at Nisi Prius : (See Ch. Archb. 812-4.) (i) Return of Writ. If the sheriff refuse to make a return the court will order him to do so : (Ch. Archb. 814.) The defendant is entitled to have the inquisition filed : (Id.) (Te) Setting Aside Inquisition, Staying ludgmemt, &c. Within foiu- days after return day, or any time before judgment, the defendant may move to set aside the execution, or if it is in vacation may apply to a judge to stay proceedings. Judgment may also be postponed at the instance of the sheriff by certificate on the writ : (1 Will. 4, c. 7, s. 1.) If such certificate is not granted, the court may order judgment to be vacated, and execution to be stayed or set aside, or may grant a new writ of inquiry : (1 WUl. 4, c. 7, s. 4.) [l] Final Judgment and Execution. After the return of a writ of inquiry judgment may be signed at the expiration of four days from such return : (R. Gr. H. T. 1853, r. 55.) After which execution may be issued : (Oh. Archb. 817.) [As to writs of inquiry on debt or bond : (See Oh. Archb. 817, 824.] III. BEFORE DISTRICT REGISTRAR. [See DisTBiCT Registeies.] IV. BEFORE REFEREE. [See Referee.] INSPECTION. [See Discoveky.] INTERLOCUTORY PROCEEDINGS. The court will not, by an interlocutory order, interfere on behalf of one party in a way which migEt injure the other in case he should succeed : {SiU v. Kirkwood, 42 L. T. Rep. N. S. 105 ; 28 W. R. 358 ; Evans v. Puleston, W. N. 1880, p. 127.) [See also Appeal, Injunction, Inquiries, Motion, Order, Receiver.] Interpleader . 441 INTERPLEADER. I. OEIGINAl PEOCEEDINGS. 1. By Action. 2. By Sheriff's Application. II. PEOCEEDINGS IN ACTION ALREADY COMMENCED. 1. FoKMEE Common Law Pkactice applies. 2. Application. 3. Evidence. 4. Effect of Pending Intekpleadeb PROCEBDiNas. 5. Order to Appear. 6. Subsequent Order. 7. When Judgment or Order Final. 8. Costs. I. ORIGINAL PROCEEDINGS'. 1. By AcTioisr. Where two or more persons claim the same thing, by different or separate interests, and another person, not knowing to which of the claimants he ought of right to render a debt or duty, or to deliver property in his custody, fears he may be hurt by some of them, he may commence an action of interpleader against them (Dan. 1412, citing Mitf . PI. 48, 141, &c.) ; although no legal proceedings have been taken : (Seton, 361 ; Be New Samhurg and Brazilian Bailway Company, W. N. 1875, p. 239 ; Ch. Archb. 13th edit. 1115.) An affidavit of no collusion, and, in the case of a debt or sum of money, payment of the amount into court, are required : (S^ton, 361.) The affidavit must be filed when the writ is issued : (Dan. 1413.) Any action pending against the plaintifB cannot be restrained by in- junction, but application may be made for a stay of proceedings, and the plaintifEs in them may be added as third parties: [see Injunction, Pleading, Stating Pboceedings.] [Where there has been made] any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action .... if the debtor, trustee, or other person liable ia respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice uader and in conformity with the provisions of the Acts for the relief of trustees : (J. A., 1873, s. 25, sub-sect. 6.) 2. By Shbbiff's Application. Where claims are made by assignees of bankrupts and other persons, not being the parties against whom .... process has issued, to any goods or chattels taken or intended to be taken in execution under any process, or to the proceeds or value thereof (though the titles of the claimants have not a common origin, but are adverse to and independent of one another), it shaU and may be lawful to and for the court from which such process issued, or any judge thereof, upon apphcation of such sheriff or other officer made before or after the return of such process, as 442 Interpleader. well before as after any action brought against such sheriff or other officer, to call before them, by rule of court, as well the party issuing such process as the party making such claim, and thereupon to exercise, for the adjust- ment of such claims and the relief and protection of the sheriff or other officer, aU or any of the powers and authorities [in the Act] contained, and make such rules and decisions as shall appear to be just, according to the circumstances of the case ; and the costs of all such proceedings shall be in the discretion of the court or judge : (1 & 2 Will. 4, c. 68, s. (j, as amended by 1 & 2 Vict. c. 45, s. 2 ; and 0. L. P. A. 1860, s. 1.) If the sheriff intends to levy, he may apply before actual seizure made : (Ch. Archb. 1126.) Relief will not be granted unless an actual claim has been made : {Id.) Relief will be granted not only where claim is made to the goods, but where an action of trespass has been brought for breaking into a house of the claimant : (Id.) The claim may he legal or equitable, but must be of such a nature that an action may be brought on it by the person making it : (Ch. Archb. 1124r-5.) The sheriff, before applying, must inquire of the nature of the claims set up by the adverse parties, and ascertain whether the execution creditor submits to, or intends to contest them, for if it turns out there are no conflicting claims he may be made to pay costs : (Oh. Archb. 1128.) An affidavit must be made stating the seizure, that the goods are in the sheriff's hands, the notice of claim, and other facts to be relied on, but need not deny coUusion : (Oh. Archb. 1129.) The subsequent proceedings are the same as in interpleader in an action : {See post, II.) When goods or chattels have been seized in execution by a sheriff or other officer under process of the [High Oourt of Justice] and some third person claims to be entitled under a bill of sale or otherwise to such goods or chattels, by way of security for a debt, the court or a judge may order a sale of the whole or part thereof, upon such terms as to payment of the whole or part of the secured debt or otherwise as they or he shall think fit, and may direct the application of the proceeds of such sale in such manner and upon such terms as to such court or judge may seem just : (0. L. P. A., 1860, s. 13.) Where neither the claimant nor the creditor appears, the sheriff wiU bi- allowed to sell so much of the goods seized as wiU satisfy his poundage and expenses, and then withdraw from possession : (Oh. Archb. II, 31.) For forms of orders where sheriffs are parties to interpleader proceed- ings, see Schedules H. 48 and 60-54 to the Rules of April, 1880. Pending the trial of an interpleader issue at the instance of a sheriff, the execution creditor has no right to the inunediate return of the writ of execution : {Angell v. Baddeley, L. Rep. 3 Exch. Div. 49.) II. PROCEEDINGS IN ACTION ALREADY COMMENCED. 1. FoKMER Common Law Peactice Applies. With respect to interpleader, the procedure and practice .... used by courts of common law under the Interpleader Acts (I & 2 WiQ. 4, c. 58, and 23 & 24 Yict. c. 126) shall apply to all actions and all the divisions of the High Court of Justice : (O. I., r. 2.) 2. Application. Except under special circumstances, the application should be by summons : (Oh. Archb. 1120.) The application by a defendant .shall be made at any time after being Interpleader. 443 served with a writ of summons, and before delivering a defence : (O. I., r. 2.) It shall be lawful for the court or a judge to whom such application is made, to exercise all the powers and authorities given to them by [the Act], though the titles of the claimants to the money, goods, or chattels in question, or to the proceeds or value thereof, have not a common origin, but are adverse to and independent of one another : (0. L. P. A., 1860, s. 12.) A defendant can obtain an interpleader order, although the claims of the claimants are not co-extensive : {Attenhorough v. London and St. Katherine's Bock Company, L. Rep. 3 C! P. Div. 450 ; 38 L. T. Rep. N.S. 404; 26 W. R. 583.) But the claims must have some element in common : ( Wright v. JBVeeman, 40 L. T. Rep. N. S. 134; 48 L. J. 276, 0. P.; affirmed, 40 L. T. Rep. N. S. 358.) 3. Evidence. See post, 5. The form of affidavit is given in Schedule B. 27 to the Rules of April, 1880. 4. Effect of Pending Inteepleadeb Proceedings. Proceedings taken against the goods, pending an interpleader summons, constitute a contempt of court : (Ch. Archb. 1135.) A judge of the Chancery Division may grant an injunction restraining the removal of goods; though they are the subject of an interpleader pro- ceedings in another division, but no order wUl be made by him in the interpleader proceedings : {Marston v. Smith, W. N. 1877, p. 169.) And there is no universal rule that an action cannot be brought while an interpleader summons is pending : (Hoolce v. Ind, Coope, and Co., W. N". 1877, p. 90.) 5. Oedbe to Appear. Upon application made by or on ^lehalf of any defendant in any action .... by affidavit or otherwise, showing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same, and that such defendant does not in any manner coUude with such third party, but is ready to bring into court or to pay or dispose of the subject-matter of the action in such manner as the court (or any judge thereof) may order or direct, it shall be lawful for the court, or any judge thereof, to mate rules and orders calling upon such third party to appear and state the nature and particulars of his claims : (1 & 2 WiU. 4, c. 58, s. 1.) The granting or refusing of the order is purely discretionary : ( Wright V. Freeman, 40 L. T. Rep. N. S. 358.) 6. Subsequent Oedees. [The court or judge may] upon such rule or order .... hear the alle- gations as well of such thid party as of the plaintiff, and in the meantime .... stay the proceedings in such action, and finally (1) order such third party to make himseft defendant in the same or some other action, or (2) to proceed to trial on one or more . . . issue or issues, and also to direct which of the parties shall be plaintiff or defendant on such trial, or (3) with the consent of the plaintiff and such third party, their counsel or [solicitors], or wherever, from the smallness of the amount in dispute, or of the value of the goods seized, it shaU appear to the court or judge desirable and right so to do, at the request of either party, dispose of the merits of their claims and determine the same in a snramaiy manner. 444 Interpleader. and make such other rules and orders therein, as to costs and all other matters as may appear to be just and reasonable : (see 1 & 2 Will. 4, c. 58, s. 1, as amended by C. L. P. A. 1860, s. 14.) In all cases of interpleader proceedings where the question is one of law, and the facts are not in dispute, the judge shall be at liberty, at his dis- cretion, to decide the question without directing an action or issue, and, if he shall think it desirable, to order that a special case be stated for the opinion of the court : (0. L. P. A. 1860, s. 15.) For form of order that the claimant be substituted as defendant in the action in lieu of the present defendant, see Sched. H. 49 to the Rules of April, 1880. For form of order directing trial of an issue, see Scheds. H. 50-52 to the Rules of April, 1880. For form of order, or request, that the merits of the claim made by the claimant be disposed of and determined in a summary manner, see Sched. H. 53 to the Rules of April, 1880. If such third party shall not appear upon such rule or order to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any rule or order to be made after appear- ance, it shall be lawful for the court or judge to declare such third party, and all persons chiiming by, from, or under him, to be for ever barred from prosecuting his claim against the original defendant, his executors and administrators, saving nevertheless the right or claim of such third party against the plaintiff, and thereupon to maike such order between such defendant and the plaintiff, as to costs and other matters, as may appear just and reasonable : (1 & 2 Will. 4, c. 58, s. 3 ; Gusden v. Clapham, W. N. 1877, p. 90.) For f 3rm of order barring claim, see Sched. H. 48 to the Rules of April, 1880. If the claimant does not appear on the interpleader rule or summons, he cannot be ordered to pay the costs of the application, nor will the costs be ordered to be paid out of the funds in dispute : (Oh. Archb. 1122.) 7. When JtrDGMBifT or Okdek Final. The judgment in any such action or issue as may be directed by the court or judge in any interpleader proceedings, and the decision of the court or judge in a summary manner, shall be final and conclusive against the parties and all persons claiming by, from, or under them : (1 & 2 WiU. 4, c. 58, s. 2 ; 0. L. P. A. 1860, s. 17.) The decision of a judge in chambers, disposing of the matter sum- marily, is final (Bodds v. Shepherd, L. Rep. 1 Ex. Div. 75 ; '34 L. T. Rep. N. S. 358; 45 L. J. 457, Ex.; 24 W. R. 322; Eade v. Winser, 47 L. J. 584, Q. B. ; Buse v. Boper, 41 L. T. Rep. N. S. 457) ; and jurisdiction on appeal cannot be given, even by consent : [Buse v. Boper, sup.) Although the order made on an interpleader issue substantially decides the dispute between the parties, it is an interlocutory order, an appeal against which cannot, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days : {McAndrew V. Barker, L. Rep. 7 Oh. Div. 701 ; 37 L. T. Rep. N. S. 810 ; 47 L. J. 340, Ch. ; "26 W. R. 317 ; Witt v. ParTc&r, 36 L. T. Rep. N. S. 538 ; 46 L. J. 450, Q. B. ; 26 W. R. 518.) 8. Costs. Where the claimant as to all the goods paid money into court, and at the trial it was found that part of the goods only belonged to him, and the rest to a third party, the Court of Appeal ordered the money in court to be paid Interpleader — Interpretation. 445 to the claimant, and gave him the costs of the issue and of the appeal : (Price T. Plummer, 39 L. T. Rep. N. S. 657 ; 26 W. R. 45.) Where after an interpleader order had been made by which the question of costs was reserved, the defendant obtained an order to discharge the interpleader order unless the plaintiff took certain steps within a given time, and, failure being made, obtained an order that the plaintiff should pay the costs, it was held that the court had jurisdiction to make the order, as an interpleader order does not remove the case from the control of the court : {Wicks v. Wood, 26 W. R. 680.) [And see sup., 6.] INTERPRETATION. In the construction of [tl» Judicature Act, 1873], imless there is anything in the subject or context repugnant thereto, the several words hereinafter mentioned shall have, or include, the meanings following; (that is to say,) " Lord Chancellor " shall include Lord Keeper of the Great Seal. " The High Court of Chancery " shall include the Lord Chancellor. " The Court of Appeal in Chancery " shall include the Lord Chancellor as a Judge on Rehearing or Appeal. "London Court of Bankruptcy" shall include the Chief Judge in Bankruptcy. "The Treasury" shall mean the Commissioners of Her Majesty's Treasury for the time being, or any two of them. " Rules of Court " shall include forms. " Cause " shall include any action, suit, or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the Crown. " Suit " shall include action. " Action " shall mean a civil proceeding commenced by writ, or in si^ch other manner as may be prescribed by Rules of Court ; and shall not include a criminal proceeding by the Crown. " Plaintiff " shall include every person asking any relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether the same be taken by action, suit, petition, motion, summons, or otherwise. " Petitioner " shall include every person making any application to the court, either by petition, motion, or summons, otherwise than as against any defendant. " Defendant " shall include every person served with any writ of summons or process, or served with notice of, or entitled to attend any proceedings. " Party " shall include every person served with notice of, or attending any proceeding, although not n.HJned on the record. " Matter " shall include every proceeding in the court not in a cause. "Pleading" shall include any petition or summons, and also shall include the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant. " Judgment " shall include decree. " Order " shall include rule. " Oath " shall include solemn affirmation and statutory declaration. " Crown cases reserved " shall mean such questions of law reserved in 446 Interpretation. criminal trials as are mentioned in the Act of the eleventh and twelfth years of Her Majesty's reign, chapter seventy-eight. " Pension " shall include retirement and superannuation allowance. " Existing " shall mean existing at the time appointed for the com- mencement of this Act : (J. A., 73, s. 100.) The provisions of the 100th section of the [Judicature Act, 1873] apply to the rules. In the construction of these rules, unless there is anything in the subject or context repugnant thereto, the several words hereinafter mentioned or referred to shall have or include the meanings following : " Person " shall include a body corporate or politic : " Probate actions " shall include actions and other matters relating to the grant or recall of probate or of letters of administration other than common form business : " Proper officer " shall, unless and until any rule to the contrary is made, mean an officer to be ascertained as follows : (a.) Where any duty to be discharged under the Act or these rules is a duty which, has heretofore been discharged by any officer, such officer shall continue to be the proper officer to discharge the same: (6.) Where any new duty is under the Act or these rules to be dis- charged, the proper officer to discharge the same shall be such officer, having previously discharged analogous duties, as may from time to time be directed to discharge the same, in the case of an officer of the Supreme Court, or the High Court of Justice, or the Court of Appeal, not attached to any division, by the Lord Chancellor, and in the case of an officer attached to any division, by the president of the division, and in the case of eea. officer attached to any judge, by such judge : " The Act " and " the said Act " shall respectively mean the Supreme Court of Judicature Act, 1873, as amended by [the Judicature Act, 1875] : (O. LXni., r. 1.) In these rules the expression " Central Office " means the Central Office of the Supreme Court of Judicature ; and the expression " master " means a Master of the Supreme Court- of Judicature. In the Supreme Court of Judicature (Officers) Act, 1879, and in Order LX., the expression " Officer of the Supreme Coiit " shall mean any officer paid wholly or partly out of public money who is attached to the Supreme Court, the High Court of Justice, or the Court of Appeal, or to any judge of any of those courts, and is not an officer attached to the person of a judge, and removable by him at pleasure. The term " these rules " as used in the Rules of the Supreme Court shall include any rules made in amendment of or addition to those rules : (O. LXIII., r. 2, April, 1880.) The words in a statute " it shall be lawful " of themselves merely make that legal and possible which there would, otherwise, be no right or authority to do. Their natural meaning is permissive and enabling only. But there may be circumstances which may couple the power with a duty to exercise it. It lies upon those who call for the exercise of the power to show that there is an obligation to exercise it : {Julius v. Bishop of Oxford, L. Rep. 5 App. Cas. 214; 42 L. T. Rep. N. S. 546 ; 49 L. J. 577, Q. B. ; 28 W. R. 726.) " To deem " means to decide judicially : (per Jessel, M.R., Bussell v. Russell, L. Rep. 14 Ch. Div. 479; 42 L. T. Rep. N. S. 112: 49 L. J. 268, Ch.) Investment — Irreg nlarity. 447 INTERROGATORIES. [See DiscovBEY.] INVESTMENT. I. OF MONET nsr OR UNDER CONTROL OF COURT. [See Payment into and out op Ootjet; Peopekty]. II. ON RBAli SECUBITIBS IN IRELAND. Any person or persons who, under or by virtue of any direction, trust or power, given, created or reserved, or hereafter to be given, created or reserved as aforesaid, is or are or shall be authorised or directed to lend money at interest on real securities in England, Wales, or Great Britain, may lend the same or any part thereof at interest on real securities in Ireland, in the same manner irFall respects, as if such investment had been expressly authorised in or by such direction, trust or power as aforesaid : (4 & 6 Will. 4, c. 29, s. 1.) All loans oJE money on real securities in Ireland under [the] Act, in which any minor or unborn child, or person of unsound mind, is or may be interested, shall be made by the direction and under the authority of the [Chancery Division] in England, such direction or authority heing obtained in any cause upon petition in a summary way : {Id., s. 2.) The word " or" was accidentally omitted after the word " cause," and a petition may be presented, though no other proceedings are pending : (Ex "parte French, 7 Sim. 510.) If the consent of a married woman be required by the trust, she must appear separately from her husband : (Dan. 1925 ; Lewin, 6th edit., 290.) The petition must be entitled in the matter of the Act, and of the cause if any, and aU parties interested must join as petitioners or be served : (Dan. 1925.) The proceedings are conducted lite those on investments on mortgages : {Id. ; see Peopeety.) Any consents required by the instrument are not dispensed with by the Act : (see s. 4.) IRREGULARITY. Non-compliance with any of [the] rules shall not render the proceedings in any action void unless the court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court or judge shall think fit : (O. LIX. ; and see Amendment.) The court cannot dispense with the printing of a statement of claim over ten folios long : (per Fry, J., Attorney -Oeneral v. Mootss, 21 S. J. 631.) The application to set aside a proceeding for irregularity must be made within what, in the opinion of the judge, is a reasonable time : {Claridge V. Mackenzie, 7 Jur. 329 ; Lane v. Newmam, 925.) Irregularity may be waived by the opposite party taking a fresh step after knowledge of the irregularity, as by entering an appearance or giving an undertaking to appear: {Oulton v. Badeliffe, L. Rep. 9 C. P. 189; Hooke V. Ind, Coope, and Company, W. N. 1877, p. 90; see also Beres- ford V. Geddes, L. Rep. 2 C. P. 286 ; and Appeaeancb.) 448 Issue — Judgment. ISSUES. I. PEEPAEATION OF WHEEE PLEADINGS INSUFFICIENT. n. NOTICE OF TEIAL OF [see Trial]. in. OEDEEING TEIAL OF. I. PREPAEATION OP, WHERE PLEADINGS INSUPPICIENT. Where in any action it appears to a judge that the statement of claim or defence or reply does not sufficiently define the issues of fact in dispute between the parties, he may direct the parties to prepare issues, and such issues shall, if the parties differ, be settled by the judge : (O. XXVI.) Issues are settled on summons by either party to show cause why the issue should not be settled by the judge at chambers : (Baxter, 234.) II. NOTICE OP TRIAL OP. [See Trial.] III. ORDERING TRIAL OP. Different questions of fact may be ordered to be tried by different modes of trial (O. XXXVL, r. 6), and in all cases one or more issues of fact may be ordered to be tried before any other or others : {Id.) Issues of law may be directed to be tried before issues of fact: (o. xxxrv., r. 2.) A trial without a jury of an issue of fact, or partly of fact and partly of law may be directed where a trial by jury cannot be insisted on: (O. XXXVL, r. 26.) A trial of an issue before a jury may be directed any time before, or at, the trial: (O. XXXVL, r. 27.) Issues of fact, or partly of fact and partly of law, may be ordered to be tried in London or Middlesex, or at the assizes (O. XXXVL, r. 29 ; Id., r. 29a, Dec., 1876), or before a referee : (J. A., 1873, s. 57.) Trial of issues may also be directed where discovery or inspection is applied for (see O. XXXL, r. 19) ; in interpleader proceedings (1 & 2 WiU. 4, c. 58, s. 1) ; on motion for judgment or a new trial (O. XL., r. 10) ; on giving leave to issue execution, where necessary either by lapse of time or change of parties : (O. XLIL, rr. 18, 19.) [And see Discoveet, Execution, Intebpleadee, JuDaMBNT, Tbial.] JUDGMENT. BY DEFAULT. 1. Of Entekino Appeaeance. (a) General Buleg. (b) To Writ specialVy indorsed. (c) To Writindorsed for Liquidated Demand. (d) To Writ for Detention of Goods amd Damages, or either. (e) To Writ for Recovery of Land. (1) Solely. (2) With Mesne Profits, Eent, or Damages. (/) To Writ for Account. (g) In Special Chcmcery wad other Actions. 2. Or Pleadins. (a) Statement of OlaAm. (6) Defence or Demwrrer to Cla/i/m. (1) Liquidated Demand. Judgment. 449 (2) Detention of Goods and Damages, or either. (3) Liquidated Demand and Detention of Goods and Damages or Damages only. (4) Recovery of Land. (5) Other Actions. (c) Rephj or Subsequent Pleading. (d) Pleading to Issues other them between Plaintiff amd Defendwnt. 3. In Givino Discovert [see Discovert]. 4. In Giving Notice op Trial. 5. Of Appeaeance at Trial. (o) By Plaintiff. (6) By Defendant. n. DISMISSING ACTION FOE WANT OF PEOSEOUTION [see sup., n., 2 (a) (c) and 4 ; DiSMissiNa Action]. in. BY LEAVE ON SPECIALLY INDORSED WRIT. 1. How Application Made. 2. Showing Cause. 3. Where Leave to Depend Given. 4. Judge's Discretion. 5. Conditional Leave to Depend. 6. Leave to Depend as to Part. 7. Leave to one op Setebal Dependants. 8. Order for and Signing Judgment. 9. Form op Judgment. 10. Eights to Monet Paid in. IV. BY LEAVE FOE ACCOUNT [see Account]. V. ON DISCONTINUANCE. VI. ON CONFESSION OF DEFENCE. VII. ON ADMISSIONS IS PLEADINGS. 1. Where Allowed. 2. Application. 3. Order. VIII. ON PAYMENT INTO COUET. IX. AT TRIAL. 1. Geneballt. ' 2. Foe some Plaintipps onlt. 3. Against some Dependants onlt. 4. Fob Balance op Set-opp or Counter-claim. X. AFTEE TRIAL BY JUDGE. XI. AFTER TRIAL BY EEFEEEE [see post, XII.] XII. ON MOTION FOE JUDGMENT. 1. Where Motion Made. (a) Trial before Referee. (b) Trial of Issues. (c) Leave to Move. (d) Other Gases. 2. Notice op Motion. 3. Setting Down. (a) When. (6) Where. 4. To what Court Motion made. 5. The Judgment. Xni. ON NEW TELAL [see New Trial]. XIV. ON APPEAL [see Appeal]. 450 Judgment. XV. BNTEEmG JUDGMENT. 1. By DEPAtrLT of Appeabance ob Pleadino. (a) In London. (1) Wiere Entered. (2) Documents Prodnoed. (3) Harking Judgment. (4) Filing Documents. (5) Signing Judgment. (6) Entering and Indexing. (6) In District- Registry . 2. In otheb Cases. (a) Where Entered. (6) Mow Entered. (1) Materials from which Prepared. (2) Bespeaking. (3) Leaving Documents. (4) Default in Bespeaking, &o., within seven days. (5) Delivering out Copy Draft Minutes. (6) How Evidence stated. (7) Settling Draft without Appointment or Notice. (8) Appointment to Settle. (9) SettUng Draft after Appointment to Settle. (10) Varying Minutes. (11) Engrossment or Print. (12) Piling Copy Pleadings. (13) Passing Judgment without Appointment or Notice. (14) Appointment to Pass. (15) Passing Judgment. (16) Entry. (17) Transmitting Office Copy to District Registry [see swp. (a)]. XVI. NOTICE OF JUDGMENT. 1. In what Cases Sebved. 2. DiBECTioNS rOE Sebvice. (a) On what Persons GenerdlVy. (6) On Infants or Lv/natics not so fownd. . (c) On Persons out of Jwrisd/iction. 3. How Seeved. (a) Generally. (b) On Infants or Lvmatics not so fownd. 4. FoEM OP Notice and Memobanduh. 5. Dispensing with oe Obdeeino Substituted Seevice. 6. Filing MEMOBANDnii. 7. Iebegui/AB Sbeyice. 8. Leaving Master's CEBTrFiCATE at Chameebs. 9. Effect of Service. (a) On Interests. (b) Liberty to Attend. (c) Adding to Judgment [see jiost, XVIII.] XVn. AMENDING JUDGMENT. XVIIL ADDING TO JUDGMENT. 1. Who mat Apply [see sup., XVI.] 2. How Application made. 3. Time » 4. Appeal fbom Obdeb. XIX. ENEOLMENT. XX. EEGISTKATION. XXI. SATISFACTION. Judgment. ' 451 XXU. SEAECHES FOE JUDGMENTS, &c. XXin. SETTING ASIDE. XXIV. HOW JUDGMENT AFFECTS INFANTS. 1. Generally. a. StrBPCENA TO Show Cause. 3. How JnDOMENT MADE ABSOLUTE. 4. Geounds foe Impeaching. 5. Time foe Impeaching. XXV. ENFORCING JUDGMENTS. 1. English Judgment. (a) House of Lords [see Appeal]. (b) Supreme Court [see Execution]. (c) Ecclesiastical Court. (d) Lancaster Palatine Court. (e) Stannaries Court. 2. IbISH JUDGMENli. 3. Scotch Judgment. 4. Pokeiqn Judgment. I. BY DEFAULT. 1. Op Entering Appeaeance. (a) General Rules. In cases other than that mentioned in the rule next cited, judgment may be simed as soon as the time limited for appearance has expired . (see O. Xfa. rr. 3, 4, 5, 6, 7, 8, 9 ; post.) Where a defendant fails to appear to a writ of summons issued out of a district registry, and the defendant had the option of entering an ap- pearance, either in the district registry or in the London oflBlce, judgment for want of appearance shall not be entered by the plaintiff until after such time as a letter, posted in London on the previous evening in due time for delivery to him on the following morning, ought in due course of post, to have reached him : (O. Xm. r. 5a, Feb. 1876.) If notice is not then received, the plaintiff may proceed to obtain judg- ment by default : {Smith v. Dobbin, L. Rep. 3 Ex. Div. 338 ; 37 L. T. Rep. N. S. 777 ; 26 W. R. 122.) The person serving a writ of summons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintifE shall not be at liberty, in case of non-appearance, to proceed by default : (O. IX. r. 13.) The indorsement is unnecessary in case of substituted service being effected by order : [Dymond v. Croft, L. Rep. 3 Ch. Div. 512) ; 34 L. T. Rep. N. S. 786 ; 45 L. J. 604, Ch. ; 24 W. R. 842.) No further leave is necessary where leave has been obtained to serve the writ out of the jurisdiction : (Scott v. Boyal Wax Candle Compa/ny, L. Rep. 1 Q. B. Div. 404; 34 L. T. Rep. N. S. 683 ; 45 L. J. 586, Q. B. ; 24 W. R. 668.) Where any defendant fails to appear to a writ of summons, and the plaintifE is desirous of proceeding upon defaidt of appearance under any of the following Rules of this Order, or under Order XV., rule 1 [see Account] he shall, before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service as the case may be : (O. xm., r. 2.) Every affidavit of service .... shall mention the date on which [the] indorsement was made : (O. IX., r. 13.) As to entry of judgment by default, see^osi XV., 1. G G 2 452 Judgment. (6) To Writ Specially Indorsed. In case of non-appearance by the defendant where the writ of summons is especially indorsed, under Order III., r. 6, the plaiatifE may sign final judgment for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified, if any, to the date of the judg- ment, and a sum for costs, but it ataU be lawful for the court or a judge to set aside or vary such judgment upon such terms as may seem just : (O. XIII., r. 3.) Where there are several defendants to a writ specially indorsed for a debt or liquidated demand in money, under Order HI., r. 6, and one or more of them appear to the writ, and another or others of them do not appear, the plaintiff may enter final judgement against such as have not appeared, and may issue execution upon such judgment without prejudice to his right to proceed with his action against such as have appeared : (O. XIII., r. 4.) (c) To Writ Indorsed for Liqmdated Demand. Where the defendant faUs to appear to the writ of summons, and the writ is not specially indorsed, but the plaintiff's claim is for a debt or liquidated demand only, no statement of claim need be delivered, but the plaintiff may file an af&davit of service or notice in lieu of service, as the case may be, and a statement of the particulars of his claim in respect of the causes of action stated in the indorsement upon the writ, and may, after the expiration of eight days, enter final judgment for the amount shown thereby and costs to be taxed, provided that the amount shall not be more than the sum indorsed upon the writ, besides costs : (O. XIII., 1-. 5.) The rule does not provide for final judgment being entered in default of appearance by one of several defendants. But the form shows that it was intended that in such case final judgment should be entered. If this catmot be done, the plaintiff should file a statement of claim (see O. XIX., r. 6 ; Pleading'), and in default of pleading, move for judg- ment as mentioned, jpost, XII. The form used by the registrars is as follows : In the High Court of Juatice, 1876. B. No. Chancery Division. M.E. or V.C. Mr. , Eegistrar. Between A. B. Plaintiff, and C. D. and E. P. Defendants. 30th November, 1876. The defendants [oi the defendant C. D.] not having appeared to the writ of snmmons herein, it is this day adjudged that the plaintiff recover against the said defendant I., and costs, to be taxed. (App. D. 1 ; Reg. Form.) (d) To Writ for Detention of Goods and Da/mages, or Either. Where the defendant fails to appear to the writ of summons, and the plaintiff's claim is not for a debt or liquidated demand only, but for deten- tion of goods and pecuniary damages, or either of them, no statement of claim need be delivered, but interlocutory judgment may be entered and a writ of inquiry shall issue to assess the value of the goods and the damages, or the damages only, as the case may be, in respect of the causes of action disclosed by the indorsement on the writ of summons. But the court or a judge may order that, instead of a writ of inquiry, the value and Judgment. 453 amount of damages, or either of them, shall be ascertained in any way in which any question arising in an action may be tried : (O. XIII., r. 6: see «Mp., p. 412.) The rule does not proTide for interlocutory judgment being entered in default of appearance of one of several defendants. In such a case the plaintiff should file a statement of claim (0. XIX., r. 6 ; Pleading), and proceed in default of pleading under O. XXIX., r. 6 : (see post, p. 456.) Where the return of the specific goods is sought, leave has been given to enter final judgment for such return, and for execution to issue, without any writ of inquiry ; but such leave is unnecessary : {Ivory v. Cruick- shanh, W. N". 1875, p. 249). The first judgment is in the following form : In the High Court of Justice, Chancery Division. 18 . No. M.E. or V.C. Mr. , Eegiatrsu:. Between Plaintiff and Defendant. No appearance having been entered to the writ of summons herein, it is this day adjudged that the plaintiff do recover damages against the defendant [" The value of the goods" or " damages " as the case may be] to be assessed. (Sched. D. 8 to Rules April, 1880; Oh. Reg. Form.) After the damages are assessed, the form of judgment is as follows : In the High Court of Justice, Chancery Division. M.E. or V.C. Mr. , Begistrar. The defendants not having appeared to the writ of summons herein, and a writ of inquiry, dated, &o., having been issued directed to the sheriff of to assess the damages which the plaintiff was entitled to recover, and the said sheriff having by his return, dated, &c., returned (or such damages, &c., having by direction of the judge been ascertained at chambers, and it appearing by the chief clerk's certificate) [or if any other method has been adopted state it] that the said damages, &c., have been assessed (or ascertained) at I., it is this day adjudged that the plaintiff recover I., and costs to be taxed. (Registrar's Form.) (e) To Writ for Recovery of Lwnd. (1) Solely. In case no appearance shall be entered in an action for the recovery pf land, within the time limited for appearance, or if an appearance be entered but the defence be limited to part only, the plaintiff shall be at liberty to enter a judgment that the person whose title is asserted in the writ shaU recover possession of the land, or of the part thereof to which the defence does not apply : (O. XIII., r. 7.) The form of judgment used by the registrars is as follows : In the High Court of Justice, Chancery Division. M.E. or V.C. Mr. , Eegistrar. No appearance having been entered to the writ of summons herein, it is this day adjudged that the plaintiff recover possession of the land in the said writ mentioned. 454 Judgment. (2) With Mesne Profits, Bent, or Damages. Where the plaintifE has endorsed a claim for mesne profits, arrears of rent, or damages for breach of contract, upon a writ for the recovery of laud, he may enter judgment as in the last preceding rule mentioned for the land : and may proceed as in the other preceding rules of this order as to such other claim so indorsed : (O. XIII., r. 8.) The form used by the registrars is the same as the one given sup., (d) (/) To Writ for Account. In default of appearance to a summons indorsed under Order m., r. 8, and after appearance unless the defendant, by affidavit or otherwise, satisfy the court or a judge that there is some preliminary question to be tried, an order for the account claimed, with all directions now usual in the Court of Chancery in similar cases, shall be forthwith made : (O. XV., r. 1.) An application for such order as mentioned in the last preceding rule shall be made by summons, and be supported by an affidavit filed ou behalf of the plaintiff, stating concisely the grounds of his claim f a^ account. The application may be made at any time after the time for entering an appearance has expired ; {Id., r. 2, and see Accoxint.) Where an executorship or administration account is claimed at the Rolls, the usual judgment is given, besides the order for account : (Dan. ^Forms, 3rd edit. 206.) {g) In Special Chancery and other Actions. In actions assigned by the 34th section of the Act to the Chancery Division .... and in aU other actions not by the Rules in this order otherwise specially provided for, in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintifE of a proper affidavit of service the action may proceed as ft such party had appeared : (O. XIII., r. 9.) The statement of claim must be delivered by being filed with the proper officer: (O. XIX., r. 6; Pleading.) Non-appearance cannot be taken as equivalent to dispensing with delivery of the statement of claim : (Minton v. Metcalfe, W. N". 1877, p. 142 ; 36 L. T. Rep. N. S. 683 ; 46 L. J. 584, Ch.) If the defendant does not appear and deliver a defence within time, the plaintiff may set the action down on motion for judgment, and such judg- ment wilt be given as on the statement of claim the court considers the plaintiff entitled to : (O. XXIX., rr. 9, 10, and see post 2 ; XII.) Two clear days' notice of such motion must be given, unless otherwise ordered : (O. LIII., rr. 3, 4 ; Bowpell v. Parsons, W. N. 1876, p. 61.) The notice is sufficiently served by being filed in the office from which the writ issued : [Morton v. Miller, L. Rep. 3 Ch. Div. 516 ; 45 L. J. 613, Ch. ; 24 W. R. 723 ; Bymond v. Croft, L. Rep. 3 Ch. Div. 512 ; 34 L. T. Rep. N. S. 786 ; 45 L. J. 604, Ch. ; 24 W. R. 842 ; Gardner v. Sairdy, W. N. 1876, p. 185.) The plaintifE shall, without any special leave, be at liberty to serve any notice of motion .... upon any defendant, who, having been duly served with a writ of summons to appear in the action, has not appeared within the time limited for that purpose : (O. LIII., r. 7.) If service is effected, filing is unnecessary : (Whitaher v. Thurston, W. N. 1876, p. 232.) It would seem, however, that the notice need neither be filed nor delivered : (Williams v. Cardwell, W. N. 1877, p. 140; 25 W. R. 646.) When one of several defendants has not appeared, and the rest have admitted the cause of action by their pleadings, the plaintiff may move for Judgment. 455 judgment on the admission as against them (see post, VII.), but as againsi the defaulting defendant, must set down the action on motion for judg- ment : (Parsons v. Harris, L. Rep. 6 Oh. Div. 694.) (h) By Party added by Order of Revivor. When a person has been added as party by order of revivor, and does not enter appearance, it is unnecessary to file the pleadings or notice of motion for judgment : {Chorlton v. DicTcie, L. Rep. 13 Oh. Div. 160 ; 41 L. T. Rep. N. S. 467 ; 49 L. J. 40, Oh. ; 28 W. R. 228.) 2., Of Plbadimg. (a) Staiem,ent of Claim. If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the court or a judge to dismiss the action with costs, for want of prosecution ; and on the hearing of such application the coui^ or judge may, if no statement of claim have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as to the court or judge shall seem just : (O. XXIX., r. 1.) Each case must stand on its own merits : {HigginboUom v. Aynesley, L. Rep. 3 Oh. Div. 288; 24 "W. R. 782.) When, after eppearance in an action against the indorser of a biU, nothing had been done, and the bill had been subsequently paid by the acceptor, proceedings were stayed, and the defendant was ordered to pay the costs of the writ : (W. N. 1876, p. 37.) When default had been made on account of negotiations, time was given for delivery, the plaintiff being ordered to pay the costs of the motion : (HigginboUom v. Aynsley, sup.) When pending the action the plaintiff has become bankrupt, the notice must be given to the trustees, and the order will only be made on the terms that it shall only be enforced against the estate: (Wright v. Swindon &c. Railway Corrvpam/y, L. Rep. 4 Oh. Div. 164 ; 36 L. T. Rep. N. S. 590 ; 46 L. J. 199, Oh.) If a sole plaintiff dies insolvent and intestate, an application may be made for an order appointing a person to represent his estate, to whom, notice may be given : (see Pabties.) For form of judgment, see Sched. H 13 to Rules of April, • 1880 [and see Dismissing Action.] (6) Defence or Dem/urrer to Claim,. (1) Liquidated Demand. If the plaintiff's claim be only for a debt or liquidated demand, and the defendant does not, within the time allowed for that purpose, deliver a defence or demurrer, the plaintiff may, at the expiration of such time, enter final judgment for the amount claimed, with costs : (O. XXIX., r. 2.) This is the proper method where the action is on a replevin bond: (Dix V. Groom, L. Rep. 5 Ex. Div. 91 ; 49 L. J. 430, Ex. ; 28 W. R. 370.) If a demurrer is overruled and no leave to amend is given, the defence is deemed to be struck out, and the rights of the parties are the same as if he had not pleaded (O. XXVIII., r. 10), and final judgment may be signed. When in any such action as in [O. XXIX., r. 2] mentioned there are several defendants, if one of them make default as mentioned in the last preceding rule, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants : (O. XXIX., r. 3.) 456 Judgment. When tlie writ is specially indorsed, and the defendant has obtained leave to defend, the plaintifE need not deliver a statement of claim, and ou default in delivery of defence final judgment may be entered : {Aikins v. Taylor, W. N. 1876, p. 11 ; Ma/rgate Pier and Sarhour Co. v. Perry. "W.N". 1876, p. 52.) The form of judgment is as follows : In the High Court of Justice, Chancery Di-risicn. 18 , ' No. M.E. or "V^.C. Mr. , Begistrar. The defendants [or the defendant CD.] not having delivered any statement of defence, it is this day adjudged that the plaintiff recover against ike defendants [or the said defendant] I., and costs to be taxed. (Registrar's Form.) (2) Detention of Goods and Damages, or either. If the plaintiff's claim be for detention of goods and pecuniary damages, or either of them, and the defendant mates defatdt [in delivery of a defence or demurrer within the time allowed, at the end of such time] the plaintiff may enter an interlocutory judgment against the defendant, and a writ of inquiry shall issue to assess the value of the goods and the damages, or the damages only, as the case may be. Bpt the court or a judge may order that, instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in aw way in which amy question arising in an action may be tried : (O. XXIX, i'. 4.) The rule is the same where the demurrer has been overruled without leave to amend : (See O. XXVIIL, r. 10 ; Pleading.) "When .... there are several defendants, if one of them make such default [in delivery of defence or demurrer], the plaintiff may enter an interlocutory judgment against the defendant so making default, and proceed with his action against the others. And in such case, damages against the defendant making default shall be assessed at the same tmie with the trial of the action or issues therein against the other defendants, unless the court or judge shall otherwise direct : (O. XXIX., r. 5.) The form of the first judgment is as follows : In the High Court of Justice, Chancery DiviBion. 18 , No. M.E. or V.C. Mr. Eegistrar. Between Plaintiff. and Defendant. , The day of , 18 . No statement of defence or demurrer having been delivered by the defendant herein, it is this day adjudged that the plaintiff recover against the defendant [" the value of the goods " or " damages," or both, as the case may be]. (Sched. D. 8 to Rules of AprU, 1880.) The form of judgment when the damages are ascertained is as follows : In the High Court of Justice, 1876. B. No. Division. Between A. B. and C. D. Plaintiffs, and E. F. and G. H. Defendants. 30th November, 1876. The defendants not having delivered a statement of defence, and a writ of inquiry, dated 1876, having been issued directed to the sheriff of Judgment. 457 to assess the damages which the plaintiff was entitled to recover, and the said sheriff having by his return dated the 1876, returned (or such damages, &c., having by direction of the judge been ascertained at chambers, and it appearing by the chief clerk's certificate) [or if any other method has been adopted state it] that the said damages, &o., have been assessed (or ascertained) at I., it is this day adjudged that the plaintiff recover I., and costs to be taxed. (Registrar's rorms.) (3) Liquidated Demand, and Detention of Goods and Damages, or Damages only. If the plaintiff's claim be for a debt or liquidated demand, and also for detention of goods and pecuniary damages, or pecuniary damages only, and the defendant makes default as mentioned in Rule 2 [delivering defence or demurrer], the plaintiff may enter final judgment for the debt or liquidated demand, and also enter interlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned' in Rule 4: (O. XXIX., r. 6; see swp., (2).) The rule is the same where the demurrer has been overruled without leave to amend: [see O. XXVIII., r. 10; Pleading.) (4) Recovery of Land. Solely. In an action for the recovery of land, if the defendant makes default as mentioned in Rule 2 [delivering defence or demurrer], the plaintiff may enter a judgment that the person whose title is asserted in the writ of summons shall recover possession of the land with his costs : (O. XXIX., r.7.) The rule is the same where a demurrer to the whole claim is overruled, no leave to amend being given : [see O. XXVIII., r. 10.] The form of judgment is as follows : In the High Court of Justice, Chancery Division. M.E. or V.C. Mr. Registrar. No statement of defence having been delivered herein, it is this day adjudged that the plaintiff recover possession of the land in the writ of summons mentioned, with his costs to be taxed. (Registrar's Forms, July, 1876.) As to this form see Qossett v. Campbell (W. N. 1877, p. 134). With claim for mesne profits, rent, or damages. Where the plaintiff has indorsed a claim for mesne profits, arrears of rent, or damages for breach of contract upon a writ for the recovery of land, if the defendant makes default as mentioned in Rule 2 [delivery of defence, or demurrer], or if there be more than one defendant, some or one of the defendants make such default, the plaintiff may enter judgment against the defaulting defendant or defendants and proceed as mentioned in Rules 4 and 6 : (O. XXIX., r. 8.) For forms of judgment, see sup. (2) ; Gossett v. Campbell (W. N. 1877, p. 134). (5) Other Actions. Rule 9 relates to Probate actions only. In all other actions than those in the preceding rules of this order mentioned, if the defendant makes default in delivering a defence or demurrer, the plaintiff may set dovni the action on motion for judgment. 458 Judgment. .^_ !Uid such judgment shall be given as upon the statement of flaim the Court shall consider the plaintifE to be entitled to : (O. XXIX. r. 10.) This rule applies where a defence has been struck out for disobedience to an order to give discovery {Fisher v. Hughes, 25 W. B. 528) ; or where a demurrer to the whole claim is overruled : (See O. XXVII., r. 10; Pleading.) A. vesting order under the Trustee Act, 1850, has been made under r. 10 : {Fisher v. Sughes, sv/p.) Where, in any. such action as mentioned in the last preceding rule, there are several defendants, then if one of such defendants, make such default as aforesaid, the plaintifE may either set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants : (0. XXIX., r. 11.) Where one of several defendants has made default, and the rest have admitted the plaintiff's claim by their defence, the plaintiff may set down the action on motion for judgment against all at the same time : (Be Smith, W. N. 1876, p. 103.) Where the defendant consents, the action may be set down on motion for judgment before the time for delivering the defence has expired : {Palin V. Brooks, W. N. 1875, p. 188 ; 24 WT B. 20.) Where on defendants default of pleading, the plaintifE moved for judg- ment on admissions of the statement of claim, and the application vras refused, an order was made that the plaintiff might set the action down on motion for judgment without any further notice of motion -. {Gillot V. Ker, W. N. 1876, p. 116 ; 24 W. R. 428.) (c) Reply or Subsequent Pleading. Where the defendant has delivered a counter-claim, and the plaintiff has delivered a reply, but has not pleaded to the counter-claim, the defendant cannot move for judgment, but the counter-claim is dealt with at the hearing or trial : (Bolfe v. Maclaren, L. Rep. 3 Oh. Div. 106 ; 24 W. B. 816.) And when the plaintiff has not delivered a reply at all, judgment cannot be obtained on the counterclaim until the original claim has been dealt with. The proper course is to give notice of motion to dismiss the original action for want of prosecution, and for judgment on the counter-claim : {Aithen v. Dunbar, 46 L. J. 489, Ch. ; 25 W. B. 366 ; and see Litton v. Litton, inf.) If the plaintiff does not deliver a reply or demurrer, or any party does not deliver 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 delivered shall be deemed to be admitted: (O. XXIX., r. 12.) Where the plaintiff makes default in delivering his reply, the defendant cannot move to dismiss for want of prosecution, until the time for the plaintifE to give notice of trial has elapsed : (Litton v. Litton, L. Rep. 3 Ch. Div. 793 ; 24 W. R. 962.) Where the defendant has delivered a defence and coui}terclaim, and the plaintiff has delivered a reply, on the defendant's default to deliver a re- joinder, the plaintiff may obtain an order to enter judgment on the defence and counter-claim : (Ellis v. Munson, W. N. 1876, p. 253,) Where plaintiff has agreed with some defendants to extend the time for delivery of their defence, other defendants who do not know of this, can- Judgment. 45& not move to have the action dismissed on the ground that plaintiff is out of time in delivering his reply to their defence : [Amhroise v. Evelvn, L. Eep. 11 Ch. Div. 759 j 27 W. R. 639.) (d) Pleading to leauea other than between Plaintiff amd Defmdant. In any case in which issues arise in an action other than between Shiintiff and defendant, if any party to any such issue makes default in elivering imy pleading, the opposite party may apply to the court or a judge for such judgment, if any, as upon the pleamngs he may appear to be entitled to. And the court may order judgment to be entered accord- ingly, or may make such other order as may be necessary to do complete justice between the parties : (O. XXIX., r. 13.) 3. In giving Discovbey. [See DiscovEEY.] 4. In gitsing Notice of Teiaj.. If the plaintiff does not srithin six weeks after the close of the pleadings, or within such extended time as a court or judge mar allow, give notice of trial (O. XXXVI., r. 4), the defendant, instead oi giving notice of trial, may apply to the court or judge to dismiss the action for want of prosecution ; and, on the hearing of such application, the court or a judge may order the action to be dismissed accordfingly, or may make such other order, and on such terms, as to the court or judge may seem just : (O. XXXVI., r. 4a., June, 1876.) [See Litton v. Litton, aup., and Dismissing Action.] For form of judgment see Sched. H. 13 to Rules of April, 1880. 5. Of Appbaeancb at Tkial. (a) By Pla/intiff. 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 : (0. XXXVI., r. 19.) It- is unnecessary to swear the jury : {Lane v. Bve, W. N. 1876, p. 86 ; ' 0. XXXVI., r. 22a., Deo. 1876.) Where the plaintiff apjjears, but refuses to proceed, judgment will be fiven against him : (Bobinson v. ChadwicJc, L. Rep. 7 Oh. ' Div. 878 ; 8 L. T. Rep. N. S. 415 ; 47 L. J. 607, Oh. ; 26 W. R. 421.) The defendant need not prove service of notice of motion : {Jarnies v. Crow, L. Rep. 7 Oh. Div. 410; 37 L. T. Rep. N. S. 749 ; 47 L. J. 200, Oh. ; 26 W. R. 236.) (6) By Defendamt. If, when an action is called on for trial, the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him : (0. XXX VL, r. 18.) Proof of the service of the notice of trial need not be given : (Ohorlton V. Dickie, L. Rep. 13 Oh. Div. 160; 41 L. T. Rep. N. S. 467; 49 L. J. 40, Oh. ; 28 W. R. 228.) When a person has been added as a party, by order of revivor, and does not enter appearance, it is unnecessary for the plaintiff to file the pleadings or notice of motion for judgment on him, but notice of trial should be served on the solicitor on the record : (Id.) II. DISMISSING AOTION FOR WANT OF PROSEOUTION. rSee aup. I., 2 (a), (o) and 4 ; Dismissing Action.] 460 Judgment. III. BT LEAYE, ON SPECIALLY INDORSED WRIT. 1. How Application made. Where the defendant appears on a writ of summons specially iudorsed, the plaiutilE may, on affidavit made by himself or by any other person who can swear positively to the debt or cause of action, verifying the cause of action, and stating that in his belief there is no defence to the action, call on the defendant to show cause why the plaintiff should not be at liberty to sign final judgment for the amount so indorsed, together with interest, if any, and costs : (O. XIV., r. I, May 1877.) Where plaintiffs brought an action against defendant, a widow, in respect of bUls of exchange given by her while under coverture, and having specially indorsed, the writ took out a summons to show cause why they should not sign final judgment, it was held that the defendant not being personally liable the procedure did not apply : {Ortner v. Fitzgibbon, 4S L. T. Rep. N. S. 60.) The rule applies to the Chancery Division : {Anglo-Italian Bank v. Bavies, 38 L. T, Rep. N. S. 197.) / A copy of the affidavit must accompany the summons or notice of motion : (O. XIV., r. 1, May, 1877.) No time is limited within which the application must be made. The making of the affidavit is not a condition precedent to the issue of the summons : where the plaintiff made a defective affidavit, then obtained his summons, and afterwards swore a fresh and good affidavit, it was held that the issue of the summons was good : (Begg v. Cooper, 40 L. T. Rep. N. S. 29 ; 27 W. R. 224.) •The application by the plaintiff for leave to enter final judgment under the last preceding rule shall be made by summons returnable not less than two clear days after service : (O. XIV., r. 2.) The summons may be issued against a defendant corporation : {Shelf ord T. Louth and East Coast Bailway Compamy, L. Rep. 4 Ex. Div. 317 ; 28 W. R. 407.) 2. Showing Cause. The defendant may show cause against such application by offering to bring into court the sum indorsed on the writ, or by affidavit. In such affidavit he shall state whether the defence he alleges goes to the whole or to part only, and if so, to what part, of the plaintifi's claim. And the judge may, if he think fit, order the defendant to attend and be examined upon oath ; or to produce any books or documents or copies of or extracts therefrom : (O. XIV., r. 3.) A defendant corporation cannot make the affidavit, and can only show cause under the words " or otherwise" in r. 1 : {Mvfirhead v. Direct United States Cable Company, 27 W. R. 708 ; and see Bank of Montreal v. Cameron, L. Rep. 2 Q. B. Div. 536 ; 36 L. T. Rep. N. S. 413 ; 25 W. R. 593, decided under ^he old rule.) Hearsay evidence may be admitted on the part of the defendant : {Sarrison v. Boitenheimer, 26 W. R. 362.) ' Pei: Cockbum, L.C.J, and PoUock, B., the rule does not warrant the receiving of an affidavit by the plaintiff in reply to the defendant's affidavit : {North Central Waggon Company v. North Wales Waggon Company, 39 L. T. Rep. N. S. 628.) Per the Common Pleas Division, the court or judge may in their discre- tion allow the plaintiiS to file an affidavit in reply : {Davis v. Spence, L. Rep. 1 C. P. Div. 719; 25 W. R. 229) ; but he cannot do so, as of right; {Botherham, v. Priest, W. N. 1879, p. 190; 41 L. T. Rep. N. S. 558; 49 L. J. 104, C. P.) J udgmtiit- 4t)] Per Jessel, M.B. the plaintifE may file affidavits in reply : [Qirvin v. Grepe, L. Rep. 13 Oh. Div. 174; 41 L. T. Rep. N. S. 522; 49 L. J. 63, Oh.); apparently as of right : {Id.) 3. Where Leave to Defend given. The defendant [must] by affidavit or otherwise, satisfy the judge that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to be permitted to defend the action : (O. XIV., r. 1, May, 1877.) For form of olrder without condition, see Sched. H. 5 to the Rules of April, 1880. Per Cairns, L.C. : The means should exist of coming by a short road to a final judgment, when there is no bond fide defence to an action, but it is of at least equal importance, that parties should not in such a way, by a summary procedure in chambers, be shut out from their defence, when they ought to be admitted to defend : (Wallingfordv. Mutual Society, L. Rep. 5 App. Gas. 685.) Per Lord Blackburn : If the judge is satisfied upon the affidavits before. bJTTi that there really is a defence upon the merits, it is a matter of right, unless there be something very extraordinary, that the defendant should be able to raise tha,t defence upon the merits, either to the whole or a part. There may very well be facts brought before the judge which satisfy him that it is reasonable, with or without terms, that the defendant should be able to fight the question, although the judge is by no means satisfied that there is what amounts to a defence upon the merits. It is not enough to swear, " I say I owe the man nothing," but the judge must be satisfied that there is ground for saying so. If fraud be alleged, the defendant must give such an extent of definite facts pointing to the fraud as to satisfy the judge that those are facts which make it reasonable that the defendant should be allowed to raise that defence. And in like manner as to illegality, and every other defence that might be mentioned : ( Wallmgford v. Mutual Society, siip?) '. . The order contemplates that a defendant shall be allowed to defend whenever the affidavits disclose reasonable ground for supposing that he has a plausible defence, and the powers ought to be sparingly used, the defence being precluded only where it is plainly vexatious and groundless : (Per BramweU, L.J., Bechingham v. Owen, W. N. 1878, p. 215.) If the defendant by his affidavits shows such a state of facts as leads to the irtference that at the trial he may be able to establish a defence to the claim, leave to defend ought to be given, and the defendant's affidavits need not show a complete defence : (Per Brett, L.J. Bay v. Barleei; L. Eep. 4 Ex. Div. 279; 48 L. J. 569, Ex. ; 27 "W. R. 745.) Per the Court of Appeal : Leave to sign judgment should be given only where there is clearfy no defence to the action, and where there is any doubt the defendant should have liberty to defend: {Thompson v. Ma/rshall, 41 L. T. Rep. N. S. 720.) Though the question of liability must, to a certain extent, be tried on the application, leave to defend wiUbe given where it is shown that the defence is bond fide, and not for the purpose of delay : {Lloyd's Banking Company V. Ogle, L. Rep. 1 Ex. Div. 262 ; 45 L. J. 616, Ex. ; and see Andrews v. Stewart, W. N. 1876, p. 7 ; Phillies v. Sarris, W. N. 1876, p. 54; W. N. 1876, p. 23; Amermy v. Nawab of Bengal, W. N. 1875, p. 239; Berridge v. Roberts, W. N. 1876, p. 86 ; Thome v. Seel, W. N. 1878, p. 215.) Where, in a claim for payment of sums of money, the defence set up is that of a denial and contradiction of the accounts on which the claim is 462 Judgment. founded, it is erroneous to make an order under Order XIV., r. la., refusing to a defendant the liberty to defend, except upon the condition that he must pay into court a definite sum of money withiu a certain time, and that, unless he does so, judgment shall be signed against him. And this is especially the case where there are mortgages, and the creditor has been a mortgagee in possession: {Wallingford v. Mutual Society, sup.) The defendant in an action for caUs, brought by the liquidator of a com- pany which is being voluntarily wound-up under the Companies Act, 1862, is entitled to have leave to defend unconditionally, if he has a set-off, exceeding the amount of the claim, due to him from the company : {Choom V. Rathhone, 41 L. T. Bep, TS. S. 591 ; but compare Brcmwhite's Case, 40 L. T. Rep. N. S. 652.) Per Jessel, M.Bi. : The only question which can be tried is whether there is a good defence upon the merits : {Ex parte Marshall, L. Rep. 5 Oh. Div. 877.) When the judge is satisfied not only that there is no defence, but that there is no fairly arguable point to be argued on behalf of the defendant, it is his duty to give judgment : (Jessel, M.R., in Anglo-Italian Bank v. Wells, 38 L. T. Bep, N. S. 197.) Order to sign final judgment has been made in the following cases : Where the only defence was that the defendant had commenced pro- ceedings in bankruptcy (W. N. 1876, p. 220; W. N. 1876, p. 23) ; In an action against two defendants, where one admitted the debt and allowed judgment to go by default, and the other only deposed that his co-defendant was acting in collusion with the plaintifE, and that he was willing to pay his share {East Assam Company v. Roche, W. N. 1875, p. 238); Notwithstanding defendant had sailed to join his regiment, and that the writ was served only the day before he started (W. N. 1875, 260.) ; Where the defendant's aflB^davit stated that there was a good defence, but did not specify what it was: (W. N. 1875, p. 249; and see Wallingford V. Mutual Society, sup.) Where the judge considered on the evidence that the plaintifE was entitled to sign judgment, on the defendant's undertaking to give notice of appeal, and to set down the appeal within four days of the passing of the order, the judge stayed execution till after the decision on appeal : {Anglo-Italian Bank v. Wells, 38 L. T. Rep. N. S. 197.) 4. Jttdge's Discbetion. The judge's discretion will not ordinarily be interfered with on appeal : ■{Harrison v. Bottenheimer , 26 W. B. 362 ; and see Wallingford v. Mutual Society, sup.) When leave to defend has been given appeals are not encouraged : (Papayanni v. Coutpas, W. N. 1880, p. 109.) 6. CoNDiTioNAi, Leave to Defend. Leave to defend may be given unconditionally or subject to such terms as to giving security, or otherwise, as the court or a judge may think fit : (O. XIV., r. 6.) Leave to defend may be given on condition that the defendant pays the amount into court : (German Bank of London v. Schmidt, W. N. 1876, p. 10 ; Roberts v. Guest, Id.) As to the amount ordered to be paid in, see Oriental Bank Company v. Fitzgerald (W. N. 1880, p. 119.) Where the defendant also shows what his defence is, and his reasons for thinking it substantial, he ought not to be ordered to bring money into Judgment. 463 court : (Bimnacles v. Mesquita, L. Rep. 1 Q. B. Div. 416; 45 L. J. 407, Q. B. ; Beckingham v. Owen, W. N. 1878, p. 215.) A defendant who shows cause by ojBEering to bring into court the sum indorsed on the writ, is not thereby entitled as of right to have leave to defend : (Crump v. Cavendish, L. Rep. 5 Ex. Div. 211 ; 42 L. T. Rep. N. S. 136 ; 28 W. R. 662.) For form of order giving conditional leave, see Scheds. H. 6-7 to the Rules of AprU, 1880. Where the defendanthas obtainedleaveto defend upon the terms of paying money into court, if a divisional court subsequently hold that there was no evidence of his liability to go to the jury and enter judgment for him, he is entitled to receive the money that he has paid into court, notwith- standing that the plaintifE has given notice of appeal from the judgment of the divisional court : (My cock v. Yorkshire Banking Company, L. Rep. 4 C. P. Div. 213 ; 41 L. T. Rep. N. S. 92 ; 27 W. R. 914.) 6. Leave t9 Defend as to Paet. If it appear that the defence set up by the defendant applies only to a part of the plaintiff's claim ; or that any part of his claim is admitted to be due ; the plaintifE shall have judgment forthwith for such part of his claim as the defence does not apply to, or as is admitted to be due, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into court by the sherifC, the taxation of costs, or otherwise, as the judge may think fit. And the defendant may be allowed to defend as to the residue of the plaintiff's claim : (O. XIV., r. 4.) Where the defendant by afSdavit admitted part of the claim to be due, but disclosed a defence upon the merits as to the residue, it was held by the Exchequer Division that the master had no power to make the payment of the sum admitted by the defendant to be due a condition of his being allowed to defend as to the residue of the plaintiff's claim, and they varied the order by giving leave to the plaintiff to sign judgment for the admitted portion of his claim, and gave leave also to the defendant unconditionally to defend the action as to the residue of the claim : (Dermis v. Seymour, L. Rep. 4 Ex. Div. 80 ; 42 L. T. Rep. N. S. 31 ; 27 W. R. 475.) For form of order, see Sched. H. 7 to the Rules of April, 1880.) 7. Leave to one of Sbveeal Defendants to Defend. If it appears to the judge that any defendant has a good defence to or ought to be permitted to defend the action, and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with his action against the former : (0. XIV., r. 5.) 8. Ordee foe and SiGNiNa Judgment. The judge may, unless the defendant, by affidavit or otherwise, satisfy the judge that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him tobe permitted to defend the action, make an order empowering the plaintiff to sign judg- ment accordingly : (O. XIV., r. 1, May, 1877.) For form of order for immediate judgment, see Sched. H. 4 to the Rules of April, 1880. „ ^ T TT For order, if money not paid in within limited time, see Sched. H. 6 to the same rules. Where, under O. XIV., r. 1, plaintiff obtains an order for liberty to 464 Jadymi-nt. sign judgment notwithstanding the appearance of the defendant, such judgment may be signed upon production of the order duly passed and entered, and without any other evidence. 9. Form of Judgment. The judgment must now be in the following form : — In the High Court of Justice. Chancery Division. 18 , No. . M.B. or V.C. Mr. Begistrar. Between Plaintiff. and Defendant. The day of 18 . The defendant having appeared to the writ of summons herein, and the plaintiff having by the order of , dated the day of , 18 , obtained leave to aiga judgment under the Enles of the Supreme Court, Order XIV., r. la, for [recite Order]. It is this day adjudged that the plaintiff recover against the defendant {. and costs to be taxed. The above costs have been taxed and allowed at I. , as appears by a master's certificate dated the day of , 18 (Sched. O. 9, Rules, April, 1880 ; Ch. Reg. rorms.) IV. BY LBAYE TOR ACCOUNT. [See AccoxTNT.] V. ON DISCONTINUAlSrCE. A defendant may sign judgment for costs of an action if it is whoUy discontinued, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued : (O. XXIII., r. 2a, June, 1876.) [When the discontinuance or withdrawal is by plaintiff's notice] such costs shall be taxed : (O. XXIII., r. 1.) Such discontinuance or withdrawal, as the case may be [on notice] shall not be a defence to any subsequent action : (Id.) The defendant is entitled as of right to all the costs of the action : (The St. Olaf, L. Rep. 2 P. Div. 113.) A form of judgment for defendant's costs is given in Sched. D. 13 to the Rules of April, 1880. [And see Discontinuance and Withdkawal.] VI. ON CONFESSION OF DEFENCE. Whenever any defendant, in his statement of defence, or in any further statement of defence ... alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence .... and he may thereupon sign judgment for hip costs up to the time of the pleading of such defence unless the court or a judge shall, either before or after the delivery of such confession, otherwise order : (O. XX., r. 3.) Where defendant has pleaded in bar and also pleaded subsequent matter, the plaintiff on confessing a defence is entitled to his costs up to the time of pleading unless it is otherwise ordered : (Foster v. Gamgee, L. Rep. 1 Q. B. Div. 666 ; see also Cappelms v. Brown, W. N., 1875, p. 231 ; Ellis Y. Mwnson, W. N. 1876, p. 253.) A form of judgment for plaintiff's costs is given in Schedule D. 14 to the Rules of April, 1880. Judgment. 465 VII. ON ADMISSIONS IN PLEADINGS. 1. Where Allowed. Any party to an action may at any stage thereof apply to the court or a judge for such order as he may, upon any admissions of fact in the pleadings, be entitled to, without waiting for the determination of any other question between the parties : {O. XL., r. 11.) A judge has a discretion, which will not be interfered with on appeal, as to whether a case inyolves questions which cannot conveniently be disposed of on a motion of this kind : {Melhr v. Sidebottom, L. Rep. 5 Ch. Div. 342 ; 37 L. T. Rep. N. S. 7 ; 46 L. J. 378, Oh. ; 25 W. R. 401 ; Pike y. FiU-Qihhon, 41 L. T. Rep. N. S. 148.) Where both defendants put in a statement of defence purporting to be the defence of both, but which raised no defence on the part of one defendant, an order was made against him : (Jenkins v. Davies, L. Rep. 1 Ch. DiT. 696 ; 24 W. R. 690.J Where the defendant has delivered his statement of defence, but omitted to deny facts alleged in the statement of claim which, if admitted, would entitle the plaintiff to judgment, an order will be made : (Symonds V. Jmhins, 34 L. T. Rep. N. S. 277 ; 24 W. R. 512.) The motion may be made where allegations are not specifically denied : (Butter V. Tregent, L. Rep. 12 Oh. Div. 758 ; 41 L. T. Rep. N. S. 16; 48 L. J. 791, Ch. ; 27 W. R. 902 ; and see Green v. Sevin, L. Rep. 13 Ch. Div. 589 ; 41 L. T. Rep. N. S. 719 ; 49 L. J. 166, Oh.) Where there were several defendants, and one by his defence admitted the plaintiff's claim, and the rest made default, a direction was given to set the action down on motion for judgment against the defaulting defen- dants, and leave was given for the plaintifE to give the others notice of motion for judgment, on the same day and time as against the other defendants : (Bridson v. Smith, W. N. 1876, p. 103 ; Parsons v. Harris, L. Rep. 6 Ch. Div. 694; 25 W. R. 410.) But where defendant has raised a defence, good if uncontradicted, failure to deliver a reply is not such an admission as to entitle the defen- dant to an order : (Litton v. Litton, L. Rep. 3 Ch. Div. 793 ; 25 W. R. 962) ; and where the defendant has not delivered a defence, the default is not an admission entitling the plaintiff to an order: (Gillott v. Eer, W. N. 1876, p. 116.) Where to a counter-claim the plaintiff replies only by joining issue, the defendant cannot apply for an order for" judgment on the counter-claim before the principi claim, has been dealt with : (Bolfe v. Maolaren, L. Rep. 3 Ch. Div. 106 ; 24 W. R. 816.) The party moving must have a clear case, and if he claims a right which does not exist in law, the fact that it is not denied in the other party's pleading is not sufficient to entitle him to a judgment esta- blishing the right: (Chilton v. Corporation of London, L. Rep. 7 Ch Div. 735; 38 L. T. Rep. N. S. 498; 47 L. J. 433, Oh.; 26 W. R. 474.) . , ^ ^ ^ , . , An application may be made where plaintiff is entitled to final judg- ment : (Gilbert v. Srmth, L. Rep. 2 Ch. Div. 686; 45 L. J. 415, Oh; Jenkins v. Davies, sup.) Where defendant, in an action for partnership accounts, admitted the partnership, an order for an account was made : (Turqwmd v. Wilson, L. Rep. 1 Ch. Div. 85; 45 L. J. 104, Ch. ; 24 W. R.'56.) In an action for an account of moneys received by an agent and delivery up of documents, on admissions of the agency and possession of the docu- ments, an order for account and delivery of the documents was made : H H 466 Judg'ifient. I V. Beed, L. Rep. 1 Ch. Div. 643 ; 33 L. T. Rep. N. S. 803 : 45 L. J. 489, Oh. ; 24 W. R. 245.) Where, in a suit commenced before the Act, the plaiutifE claimed a charge upon certain bonds of a foreign state which were deposited in the bank to the credit of the cause, the defendants in their answer admitted the plaintifE's title. On an application for an order for the sale of the bonds, as perishable goods within the meaning of Order LII., r. 2; or upon admission of facts in the pleadings, a sale was ordered on the ground that the defendants, having by their answer admitted the plaintifE's title, rule 11 of Order XL. applied, and there was no reason why the relief to which he was entitled should be delayed until the hearing : {Coddirwton V. The Jacksonville, Pensacola, and Mobile Railway Company, 39 L. T. Rep. N. S. 12 ; W. N. 1878, p. 78.) An order for inquiries as to persons interested in property, the subject of a partition action, was made on admission of the allegations of the •claim : [Gilbert v. Smith, sup.) The court will not on a motion for judgment on admissions of fact in the pleadings, make a declaration charging the separate estate of a married woman with the amoimt of debts contracted by her with reference to such estate, in the absence of the trustee of .such estate, unless the trustee cannot be found : {Pike v. Fitx-Gtibbon, 41 L. T. Rep. N.S. 148.) 2. Application. The foregoing rules of this order shall not apply to such applications, but any such application may be made by motion, so soon as the right of ■the party applying to the relief claimed has appeared from the pleadings : <0. XL., r. 11.) A motion of this kind is not the proper mode for determining whether & defence is demurrable : {Mellor v. Sidebottom, sv/p.) Where a defendant makes his defence, and the plaintifE moves under Order XL., r. 11, for such order as he is entitled to on the admissions of the defendant, the action need not be set down, but it, on the motion being made, it appears that there must be a discussion or argument, it may De ordered to go into the general paper, subject to any order for its Ijeing advanced : (Ch. Reg. Notice, April, 1877.) It is not necessary to apply under the rule before trial, as judgment on admissions may be then given : {Tildesley v. Harper, L. Rep. 7 Oh. Div. 403 ; 38 L. T. Rep. N. S. 60 ; 47 L. J. 263, Oh. ; 26 W. R. 263.) 3. Oedek. The court or a judge may, on any such application, give such relief, subject to such terms, if any, as such court or judge may think fit : (O. XL., r. 11.) The court may reserve further consideration: (Bennett v. Moore, 45 L. J. 275, Oh.) Vm. ON PAYMENT INTO OOURT. The plaintiff, if payment into court is made before delivering a defence, may, within four days after receipt of notice of such payment, or if such payment is first stated in a defence delivered, then may before reply, accept the same in satisfaction of the causes of action in respect of whidi it ■ is paid in ; in which case he shall give notice to the defendant in the Form No. 6 in Appendix (B.) . . . . , and shall be at liberty, in case the sum paid in is accepted in satisfaction of the entire cause oi action, to tax his •costs, and, in case of non-payment within forty-eight hours, to sign judg- ment for his costs so taxed : (0. XXX., r. 4.) If the notice is not given, but the money is accepted, the absolute right Judgment. 467 to costs is gone, but the plaintiff maj apply for costs : {Greaves v. Fhming, L. Rep. 4 Q. B. Div. 226 ; 48 L. J. 335, Q. B.) A form of judgment for .costs after acceptance of money paid into court is given in Sched. D. 15, to the B.ules of AprU, 1880. IX. AT TRIAL. 1. Genekailt. Upon the trial of an action the judge may at the trial — (1) Direct that judgment be entered for any or either party, or (2) Adjourn the case for further consideration, or (3) Leave any party to move for judgment (O. XXXVI., r. 22a., Dec. 1876), or (4) Nonsuit the plaintiff : (see O. XLl., r. 6.) _ Any judgment of nonsuit, unless the court or a judge otherwise directs, shall have the same effect as a judgment upon the merits for the defen- dant: (O. XLL, r. 6.) 2. FoK SOME Plaintiffs only. All persons may be joined as plaintiffs in whom the right to aoay relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though un- successful, shall be entitled to his costs occasioned by so joiniiig any person or persons who shall not be found entitled to relief,^ unless the court in disposing of the costs of the action shall otherwise direct : (0. XVL, r. 1.) 3. Against some Defendants only. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, with- out any amendment : (O. XVI., r. 3.) 4. Fob Balance of Set-off oe Countbe-olaim. Where in amy action a set-off or counter-claim is established as a defence against the plaintiff's claim, the court may, if the balance is in favour of the defendant, give judgment 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 : (O. XXIL, r. 10.) The balance is the balance which results at the hearing. Judgment cannot be given on the counter-claim, until the claim in the original action has been disposed of : (Bolfe v. Maelaren ; Aitken v. Drmha/r, sup.) 5. FoEMS wheee no Juby. See App. D. 4 to the Rules of 1875, and Sched. D. 10 to the Rules of April, 1880. 6. Poem wheee Juby. See App. D. 5 to the Rules of 1875. X. AFTER TRIAL BY JUDGE. The judge may . . . after the trial, direct that judgment be entered for any or either party, or adjourn the case for further consideration, or leave any party to move for judgment. . , .^, ^ ,, , „ . No judgment shaU be entered after a trial without the order of a court or judge : (O.XXXVI.,r. 22a, Dec, 1876.) , a a , i. Forlorm where there was a jury, and judgment was not ordered to .bo entered, see Sched. D. 16 to the Rules of April, 1880. H H 2 468 Judgment. For form on motion for judgment after leave reserved, see Sohed.D. IT to the same rules. For form of judgment entered by order generally, see Sched. D. 11 to Rules of AprU, 1880. Where a verdict is entered for the plaintifE subject to a reference judg- ment may be signed on the award without an order : {Lloyd v. Lewis, L. Rep. 2 Ex. Div. 7.) Where an action has been ordered to be tried in a County Court, judg- ment may be entered on the certificate of the result of the trial without any order : {Scutt v. Freeman, L. Rep. 2 Q. B. Div. 177 ; 46 L. J. 173, Q. B.) For form of judgment see Sched. D. 12 to the Rules of April, 1880. XI. AFTER TRIAL BY REFEREE. [See^jog*, Xn.] XII. ON MOTION FOR JUDGMENT. 1. Where Motion made. (as) Trial before Referee. Where at the trial of an action the judge or referee abstains frouL directing any judgment to be entered, the plaintiff may set down the action on motion for judgment. If he does not so set it down and give notice thereof to the other parties within ten days after the trial, any defendant may set down the action on motion for judgment, and give notice thereof to the other parties : (O. XL., r. 3.) It is not usual for a judge of the Chancery Division to abstain from directing judgment to be entered. The Court of Appeal has held that a referee cannot order judgment to be entered : (See Refeeee.) For forms of judgment, see Appendix D. 6 to the Rules of 1875, and Sched. D. 6a to the Rules of April, 1880.) (6) Trial of Issues. Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down the action on motion for judgment as soon as such issues or questions have been determined. If he does not so set it down, and give notice thereof to the other parties within ten days after his right so to do has arisen, then after the expiration of such ten days any defendant may set down the action on motion for judgment, and give notice thereof to the other parties : (O. XL., r. 7.) Where issues have been tried before a referee, either party may move for judgment: {Melliny. Monica, L. Rep. 3 C. P. Div. 142; 38 L. T. Rep. N. S. 8 ; 26 W. R. 183.) For form of judgment, see Sched. D. 18 to the Rules of April, 1880. Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or determination renders the trial or deter- mination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the court or a judge for leave to set down the action on motion for judgment, without waiting for such trial or determination. And the court or judge may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other questions of fact : (O. XL., r. 8.) Where an issue in an action in the Chancery Division has been tried Judgment. 469 before a judge of another division and a jury, motion for judgment must he made in the Chancery Division : (Jones v. Baxter, L. Rep. 5 Ex. Div. .275 ; 28 W. B. 817.) (c) Leave to Move. 'W hei-e at the trial of an action the judge or a referee has ordered that any judgment be entered subject to leave to move, the party to whom leave has been reserved shaU set down the action on motion for judgment, and give notice thereof to the other parties within the time limited by the judge in reserving leave, or if no time has been limited, within ten days .after the trial. The notice of motion shall state the grounds of the motion, and the relief sought, and that the motion is pursuant to leave reserved : <0. XL., r. 2.) For form of judgment, see Sched. D. 17 to Rules of April, 1880. (d) Other Cases. Except where by the Act or by these rules it is provided that judgment may be obtained in any other manner, the judgment of the court shall be obtained by motion for judgment : (O. XL., r. 6.) Where there are no pleadings the proper course is to set the action down on motion for judgment; not to give notice of trial : (Reg. Not. W. N. 1877, p. 58.) 2. Notice of Motion. Unless the court or judge give special leave to the contrary, there must be at least two clear days between the service of a notice of motion, and the day named in the notice for hearing the motion : (O. LIII., r. 4 ; Dauhney v. Shuttleworth, L. Rep. 1 Ex. Div. 53 ; 34 L. T. Rep. N. S. 357 ; 45 L. J. 177, Ex. ; 24 W. R. 321.) It will be advisible that the notices of motion for judgment should, if it is intended to mark them short, contain a statement to that efPect, and also a statement that no further notice will be given of their having been so marked. Such statement will dispense with the necessity for giving defendants further notice that motions for judgment have been marked short: (Reg. Not. April, 1876.) As to filing pleadings, and serving or filing the notice of motion where no appearance has been entered, see sup. 1. 1 (3). Substituted service of the writ, and of the notice of motion by advertise- ment, may be directed by one order : (Hamilton v. Bavies, W. N. 1880, p. 82.) 3. Setting Down. (a) When. No action shall, except by leave of the court or a judge, be set down on motion for judgment after the expiration of one year from the time when the party seelong to set down the same first became entitled so to do : (0. XL., r. 9.) A copy of the notice of motion is produced to the registrar : (Seton, 39.) (6) Where. The Master of the RoUs and the Vice-OhanceUors have given directions that motions for judgment in actions shall not be brought on as ordinary motions, but shall be set down in the cause-book. They can be marked short on production of the usual certificate of counsel, and wiU then be placed in the paper on the first short-cause day after the day for which notice is given. If not marked short, they will come into the general paper in their regular turn : (Reg. Not. April, 1876.) 4. To WHAT Court Motion made. All interlocutory and other steps and proceedings in or before the said 470 Judgment. High Court in any cause or matter subsequent to the commencement thereof, shall be taken (subject to any Rules of Court and to the power of transfer) in the division of the said High Court to which such cause or matter is for the time being attached : (J. A. 1875, s. 11, sub-s. 1.) Where an action in the Chancery Division has been tried before a judge and jury of another division, a motion for judgment when necessary must be made to the latter division : [Hunt v. City of London Beal Property Company, L. Rep. 3 Q. B. Div. 19 ; Jones v. Baxter, L. Rep. 5 Ex. Div. 275; 28W. R. 817.) Where only an issue has been so tried, motion for judgment must be made in the Chancery Division : (Id.) 5. The Judgment. Upon a motion for judgment, or for a new trial, the court may, if satisfied that it has before it all the materials necessary for finally deter- mining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it shall be of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made as it may think fit : (O. XL., r. 10.) Apparently, judgment of nonsuit may be entered on a motion for judg- ment : {Daun V. Simmins, 40 L. T. Rep. N. S. 556 ; W. N. 1879, p. 178.) For form of judgment generally, see Sched. D. 19 to the Rules of April, 1880. For form when no judgment was entered on trial by jury, see Sched. D. 16 to the Rules of April, 1880. Xni. ON NEW TRIAL. [See New Teiai.] XIV. ON APPEAL. [See Appeal.] XV. ENTERING JUDGMENT. 1. By Defattlt op Appeaeance ok Pleading. (a) In London. (1) Where entered. The judgment will be entered at the Registrars' Office in the Central Office, Royal Courts of Justice. (2) Documents produced. In any case the solicitor should produce two forms of judgment pro- perly filled up in duplicate, according to the forms set forth or referred to above. Where the writ is specially indorsed, interest, if claimed, calculated up to the day of entering judgment, should be added to the amount indorsed ou the writ. There must be produced to one of the principal clerks at the order of course seat : — On entering final or interlocutory judgment in default of entering appearance — The Original Writ ; The Original Affidavit of Service (which must show the day on which service was effected, namely eight clear days before entering judgment, and the day on which the indorsement of service was made on the writ, and that such indorsement was made within three days at most after service (see svp.. I.. 1 (a) ; Judgment. 471 The Master's Certificate (which must be of no appearance if the application is to sign judgment on writ specially indorsed [sup., I., 1 (6)] ; on writ indorsed for liquidated demand [stip., I., 1 (c)] ; on writ for detention of goods and damages, or either [sup., I., 1 (d)] ; on writ for recovery of land solely [m.q>., I., 1 (e)], and which certificate if the writ is for a liquidated demand, but not specially indorsed [see stip. I., 1 (c)], that the statement of the particulars of the plaintiff's claim was filed eight clear days before the day on which the judgment is entered. On application to enter judgment for recovery of possession of part of land there must also be produced the Master's certificate of limited appearance, or the notice signed by the defendant or his solicitor, of limited appearance : [see Appearance.] On entering final judgment .... for default of defence or demurrer where the claim is only for a debt or liquidated demand [see sup., I., 2 (6) (1)] ; or for'reoovery of land solely or with mesne profits, rent, or damages [see sup., I., 2 (6) (4)], or On entering interlocutory judgment for default of defence or demurrer where the claim is for detention of goods and damages, or either [see sup., I., 2 (6) (3)] ; or for recovery of land with mesne profits, rent, or damages [see sup., I., 2 (6) (4)] The Master's certificate of appearance, and the statement of claim, unless it appears by such certificate that the defen- dant did not require a statement of claim to be delivered. If the statement of claim does not show the date of delivery (which must be eight clear days before judgment is entered) the solicitor must indorse such date. (3) Marking Judgment. The officer shaU examine the affidavit or document produced : (0. XLI.. r. 4.) If found correct, he will mark both copies of the judgment as examined, and also see that the proper fee stamp is affixed to one of such copies. (4) Fifing Documents. In judgments for default of appearance the affidavit of service, if accepted as sufficient, and in judgments for default of pleading, the state- ment of claim, must be filed by the solicitor in the Central Office, and a note of such filing wiU be made on the copy judgment to which the fee stamp is so affixed. (6) Signing Judgment. The registrar of the day for signing certificates of sale and transfer will then pass the judgment as he would a decree or order [see post] by putting his initials to it, and affixing his seal to the duplicate. The judgment is to be dated as of the day on which the documents are left at the office (O. XLI., r. 3), and wiU be entered immediately at the entering seat. (6) Entering and Indexing. The duplicate must be left with the clerks of entries for the purpose of entry. When entered in the registrar's book it wUl be marked with the folio of the entry indexed, and forthwith transmitted by the clerks of entries to the proper seat in the Central Office, to be recorded in the cause-book kept ill that office, and to be filed there. 472 Judgment. Copies of the judgments so transmitted will be arranged according to the name of the person against whom the judgment is entered. Such copies can be inspected on payment of the proper fee : (see post.) Execution on a final judgment or writ of inquiry on any interlocutoi-y judgment will be issued from the Central Office, on producing the judg- ment duly passed and entered. (6) In District Registry. Where an action proceeds in a district registry every final judgment and every order for an account by reason of the default ol the defendiint or by consent shall be entered in the district registry in the proper book, in the same manner as a like judgment or order in an action proceeding in London would be entered in London : (O. XXXT., r. la, Jane, 1876.) Where under the Act or these rules, or otherwise, it is provided that any judgment may be entered or signed upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced, and if the same be regular and contain all that is by law required he shall enter judgment accordingly : (0. XLI., r. 4.) As to when the judgment must be entered for default of appearance which defendant had the option of entering either in the district registry or London, see sup., I., 1 (a). Where the writ of summons is issued out of a district registry and the plaintiff is entitled to enter interlocutory^ judgment [for default of appear- ance to a writ for detention of goods and damages or either of them, see sup., I., 1 (d)], or where the action proceeds in the district registry and the plaintiff is entitled to enter interlocutory judgment [for default in delivery of a defence or demurrer to a claim for detention of goods and damages, or either of them (see svp., I., 2 (6) (2)], in either case such interlocutory judgment, and, when damages shall have been assessed, final judgment, shall Be entered in the district registry, unless the court or judge shall otherwise order : (O. XXXV., r. la, June, 1876.) The entry of the judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take efPect from that date : (O. XLI., r.3.) . . Where final judgment is entered in the district registry costs shall be taxed in such registry unless the court or a judge shall otherwise order : (O. XXXV., r. 3.) 2. In Othbk Oases. (a) Where Entered. Upon every trial at the assizes, or at the London and Middlesex sitting of the Queen's Bench, Common Pleas, or Exchequer Division, where the officer present at the trial is not the officer by whom judgments ought to be entered, the associate shall enter aU such findings of fact as the judge may direct to be entered, and the directions, if any, of the judge as to judgment, and the certificates, if any, granted by the judge, in a book to be kept for the purpose : (O. XXXVL, r. 23.) Where an action proceeds in the district registry .... every .... [judgment] by consent shall be entered in the district registry in the proper book, in the same manner as a like judgment or order in an action proceeding in London would be entered in London : (O. XXXV., r. 1, June, 1876.) Where an action proceeds in the district registry, final judgment shall be entered in such registry unless the judge at the trial, or the court, or a judge should otherwise order : {Id.) Subject to the foregoing rules, where an action proceeds in the district Judgment. 473 registry the judgment and all such orders therein as require to be entered, except orders made by the district registrar under the authori^ and juris- diction vested in him under these rules, shall be entered in London, and an office copy of every judgment and order so entered shall be transmitted to the district registry to be filed with the proceedings in the action : (O. XXXV., r. 2.) (6) How Entered. (1) Materials from which Prepared. When a judgment is pronounced or an order made by the court, a note of it is taken down by the registrar, and a similar note is indorsed by counsel on the briefs ; and from these notes the draft or minute of the formal judgment or order is prepared : (Seton, 1545.) (2) Bespeaking. Every [judgment] or order shall be bespoken. The briefs and such other documents as are mentioned in [C. O. 1, r. 20] shall be ... . left with the registrar within seven days after the decree or order is pro- nounced or finally disposed of by the court : (C. O. 1, r. 21.) [The period] shall (except as to [judgments] and orders made in vacation) be computed exclusive of vacations : (Pr. C. O. r. 10.) (3) Leaving Documents. At the time of bespeaking a [judgment] or order, the party bespeaking the same shall leave with the registrar his counsel's briefs, and such other documents as may be required by the registrar, for the purpose of enabling him to draw up the same : (C. O. 1, r. 20.) " Party " means any person appearing at the hearing of the [action] or of the application, as the case may be : (Pr. C. O. r. 10.) Besides the senior counsel's brief, the following documents are to be left with the registrar on bespeaking the judgment or order. Generally any documents or evidence required to be produced to the court : (Pr. O. O. r. 15.) Office copies of any affidavits, and all exhibits therein referred to (if any affidavits have been read at the hearing) : {Id., r. 27.) The orig^al paper of admissions, signed by the parties or their solicitors, to be indorsed by the registrar, and an office copy of the affidavit of due signature of any admissions (if any admissions, are to be entered as read) : {Id., r. 23 ; O. XXXII., r. 4 ; Admissions.) Documents proved at the hearing viva, voce or by affidavit, with the order authorising them to be proved and office copies of the affidavits (if any) : (Pr. C. O. r. 28.) A copy of the certificate for paying the lower scale of court fees, duly marked by the [Master], whether the proceedings are commenced by writ or original summons, but not in the case of orders made on ordinary snmmons or on petition (if the fees of court are payable according to the lower scale) : {Id., r. 20.) The Paymaster-General's certificate, and, if the funds are restrained by any order, the restraining order, or an office copy thereof (whenever any fund in court is dealt with) : {Id., r. 16.) The probate, or letters of administration, stamped for a sufficient amount (when payment out of court is ordered to legal personal repre- sentatives) : {Id., r. 17.) A certificate of the proper amoimt payable for legacy or succession duty (after calcnktion at the Legacy and Succession Duty Department, in case of orders for payment of specific sums to the Receiver-General of Inland Eevenne, for legacy and succession duty) : {Id., r._18.) A consent brief for the purchaser, or an affidavit of notice to him of the 474 Judgmeni. intended application of the purchase money, and that the conveyance has been executed and delivered to him (if the order deals with any purchase money) : {Id., r. 30.) Counsel's brief, the original decree or the last order on further con- sideration, and any subsequent orders to revive or carry on the proceedings, and the office copy of the chief clerk's certificate, and office copies of any affidavits, and any exhibits or other evidence used at the hearing (in the case of orders made on further consideration) : {Id., r. 29.) (4) Default in Bespeaking, &c., within Seven Days. In case any decree or order is not bespoken, and the briefs and other requisite documents are not left with the registrar within the time pre- scribed [see sup. (2)J the registrar may decline to draw up the decree or order without the leave of the court : {Id., r. 22.) (5) Delivering out Copy Draft Minutes. A separate copy of the draft or minutes is prepared and delivered out to each party rejaesented by a separate solicitor : (Seton, 164S.) (6) How Evidence Stated. Every order contains a reference to the evidence on which it is made, and particularly notices the documentary evidence, generally specifying the nature of the document and its date, if any, or if it be referred to as an exhibit, either specially noticing the exhibit mark, or identifying the exhibit by reference to the affidavit or deposition : (Seton, 18.) As to how the evidence on which the judgment is founded is to be stated tisercin, see Singer Manufacturing Qompany v. Wilson (L. Bep. 3 App. Cas. 376 ; 38 L. T. Rep. N. S. 303 ; 47 L. J. 481, Ch. ; 26 W. R. 664.) (7) Settling Draft without Appointment or Notice. Notwithstanding the . . rules [mentioned jpost] the registrar shall be at liberty, in any case in whidh he may think it expedient so to do, to settle and pass the [judgment] or order without making any appointment for [thej purpose, and without notice to any party: (C. O. 1, r. 32.) (8) Appointment to Settle. At the time of delivering out the draft of any [judgment] or order which requires to be settled by the registrar in the presence of the parties, the registrar shall deliver out, to the party on whose application the draft has been prepared, an appointment in writing of a time for settling the same : (0. O. 1, r. 23.) For form of appointment, see post. A copy of such appointment shall be served on the opposite party one clear day at least before the time fixed thereby for settling the draft [judgment] or order : (0. O. 1, r. 24.) Service of such appointment shall be efEected by leaving a copy thereof at the place for service of the party to be served, or by transmitting a copy thereof by the post to such party at such place for service ; (C. 0. 1, r. 25.) The registrar's appointment, with the indorsements, if any, thereon, shall be filed with the registrar : (0. O. 1, r. 30.) (9) Settling Draft after Appointment to Settle. At the time fixed for settling the draft, the original appointment, together with a memorandum indorsed thereon of the service of a copy thereof on the opposite .party, and signed by a person by whom such service was efEected, shall be delivered to the registrar, in order that he may be satisfied that service has been duly effected; but the registrar may require such service to be verified by affida^-it : (C. O. 1, r. 26.) Judgment. 475 The party serving such copy, and the party so served, shall attend such appointment, and produce to the registrar their briefs and such other documents as may be necessary to enable him to settle the draft : (0. O. 1, r. 24.) If any party fails to attend the registrar's appointment for settUng the draft of or passing any decree or order, or fails to produce his briefs and such other documents as the registrar may require to enable him to settle such draft or pass such decree or order, the registrar may proceed to settle the draft or pass the decree or order in his absence, and the registrar shall be at liberty to dispense with the production of counsel's briefs, and to act upon such evidence as he may titunls: fit of the actual appearance by counsel of the party failing to attend or to produce such documents or papers as aforesaid, or may require the matter to be mentioned to the court : (0. 0. 1, r. 28.) A party not producing his briefs, when required, was ordered to do so within a limited time, and in default the order was to be drawn up without them : (Seton, 1545.) Where a party attempted to back out of a compromise entered into with the court's sanction at the trial, and embodied in the judgment then pronounced, the court ordered, on motion, that such party should, within four days of service of the order, leave, or cause to be left, at the office of the registrar, the counsel's brief mentioned in the notice of motion ; and, further, that the registrar should draw up the order accordingly : {Davis V. Bavis, L. Rep. 13 Oh. Div. 861 ; 41 L. T. Rep. N". S. 790 ; 49 L. J. 241, Oh.) The registrar may adjourn any appointment for settling the draft of, or passing any decree or order, to such time as he may thinfc fit ; and the parties who attended the appointment shall be bound to attend such ad- journment without further notice : (C. O. 1, r. 31.) (10) Varying Minutes. After, but not before, the draft or minutes have been settled by the registrar, and before the judgment has been passed and entered, any party dissatisfied with the draft as settled, may, at his peril as to costs, move the court, on notice specifying the matter complained of, which must be given to both the parties and the registrar, to vary the minutes or draft : (Seton, 1546.) Upon the motion the only question which the M.R. will permit to be argued is what was the actual order made, except where both parties con- sent to an addition being made, or when it cannot be ascertained what order was pronounced, in which case the matter will be allowed to be put into the paper and re-argued : (Id.) Any variation made is inserted by the registrar, no further order being necessary unless costs are ordered to be paid : (Id.) If there is fair ground for the application, and there has been no im- proper opposition the costs are usually in the cause, and the judgment is often post dated so as to include the costs of the day : (Id.) (11) Engrossment or Print. When the draft has been finally settled the registrar causes it tobe en- grossed or printed, and the engrossment or proof is delivered with the draft to the parties for comparison : (Seton, 1546 ; Dan. 876.) (12) Filing Copy Pleadings. [Before the judgment is passed] the party entering the judgment shall deliver to the officer a copy of the whole of the pleadings in the action other than any petition or summons ; such copy shall be in prifl t, except such parts (if any) of the pleadings as are by these rules permitted to b© 476 Judgment. written : Provided that no copy need be delivered of any pleading a copy of which has been delivered on entering any previous judgment in such action : (O. XLI., r. 1.) Where two copies of the pleadings have been delivered in obedience to O. XXXVI., r. 17 [see Trial] the delivery of a further copy under O. XLI., r. 1, is unnecessary except where judgment is being drawn up after trial had before 19th April, 1877 : (Reg. Not. 21, S. J., 486, 553.) The pleadings are filed in the Central Office or District Registrar: (Seton, 33.) (13) Passing Judgment without Appointment or Notice. Notwithstanding the .... rules [mentioned post] the Registrar shall be at liberty, in any case in which he may think it expedient so to do, to pass the [judgment] or order, without making any appointment for [the pur- pose] and without notice to any party : (C. O. 1, r. 32.) (14) Appointment to Pass. When the draft decree or order has been settled by the registrar, he shall name a time in the presence of the several parties, or else deliver out an appointment in writing of a time for passing the decree or order: (0. O. 1, r. 27.) When the time is named verbally, this must be done by the registrar personally in the presence of the parties, but where an appBcation is made to his clerk, the clerk should give an appointment in writing in the following form : "A. I). B." or, " In the matter of A." I have appointed the day of 18 , at o'clock in the forenoon, to settle the draft of [or, to pass] the decree [or, order] pronotmoed in this cause [_or matter] by [the Master of the Bolls] on the day of C. D., Begistrwr. (Seton, 1645; C. O. 1, r. 29.) Such appointment shaU be served on the opposite party, in like manner as directed by the 24th and 26th rules of [the] Order with reference to an appointment to settle the draft [judgment] or order [see svp. (8) ] ; and the original appointment, together with a memorandum indorsed thereon of the service of a copy thereof on the opposite party, and signed by the person by whom such service was effected, shall be delivered to the registrar, in order that he may be satisfied that service has been duly effected; but the registrar may require such service to be verified hj affidavit : (C. O. 1, r. 27.) The registrar's appointment, with the indorsements, if any, thereon, shall be filed by the registrar : (CO. 1, r. 30.) (15) Passing Judgment. The judgment or order is said to be passed when the registrar has signed his initials to the engrossment or print, as an authority to the clerk of entries to enter it in the registrar's book : (Seton, 1646-7.) The passing may be adjourned or effected in the absence of parties in the same manner as the settlement of the draft: (C. O. 1, rr. 31, 28, sup. (9) .) (16) Entry. Where, by the Act or these rules, or otherwise, any judgment may be entered pursuant to any order or certificate, or return to any writ, the production of such order or certificate sealed with the seal of the court, or Judgment. All of such return, shall be a sufficient authority to the officer to enter judg- ment accordingly : (O. XLI., r. 5.) If the judge [at a trial at the assizes or in London or Middlesex, directs] that any judgment be entered for any party absolutely, the certificate of the associate to that effect shall be a sufficient authority to the proper officer to enter judgment accordingly. The certificate may be in the form No. 15 in Appendix (B) : (O. XXXYI., r. 24.) Where under the Act or these rules, or otherwise, it is provided that any judgment may be entered or signed upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced, and if the same be regular and contain all that is by law required, he shall enter judgment accordingly: (O. XLI., r. 4.) All decrees and orders drawn up by the registrars, or by the chief clerks to the judges, and all praecipes for attachments, and such other docu- ments, if any, as, according toithe present practice, or the practice for the time being, ought to be entered by the entering clerks to the registrars, shall be entered by them without abbreviations, and in a clear and legible hand, under the direction of the senior registrar for the time being, within one clear day after the same shall be left for entry ; and all such entries shall be examined by one of the said entering clerks, and be marked with his initials to denote such examination : (0. O. 1, r. 18.) Proper calendars or indexes of such entries shall be made by the said entering clerks, so that the same may be conveniently referred to when required. And such calendars or indexes, and the books in which such entries are made, shall, when completed, be ... preserved under the direction of the [Master of the Supreme Court], and shall at aU times during office hours be accessible to the public on payment of the usual fee : (C. O. 1, r. 19 ; J. A. 1879.) Where any judgment is pronounced by the court or a jndge in court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, and the judgment shall take effect from that date ; (O. XLI., r. 2.) As to entry nunc pro tv/nc, see Seton, 1547. (17) Transmitting Office Copy to District Registry. [See Slip., (a)] XYI. NOTICE OF JUDGMENT. 1. In what Cases Seevbd. [Where in action for administration, executions of trusts, in the nature of waste, the protection of property pending litigation, or partition, a party may sue or be sued as representing a class, without joining other persons as parties who would formerly have been necessary parties (see Administkation ; Tetjsts ; Paeties)] the persons who [were formerly] necessary parties to the suit, shall be served with notice of the judgment : (15 & 16 Vict. e. 86, s. 42, r. 8 ; O. XVI., r. 11 ; 31 & 32 Vict. c. 40, s. 9.) The Act applies to persons interested in the proceeds of sale of real estate to be sold under the judgment, to infants, and to parties out of the jurisdiction : (Ayck. 229 ; Dan. 859.) 2. DiEECTiONS roE Service. (a) On what Persons Generally. The judge in chamber will not in general, in the first instance, direct upon whom notice of judgment ought to be served, but he will entertain an application to dispense with service : (Dan. 360.) 478 Judgment. (b) On Infants and Imnatics not so Found. Where any person required to be served with notice of a [judgment] or order, pursuant to the 8th rule of the 42nd section of the stat. 15 & 16 Yiot. c. 86, is . an infant or a person of unsound miud not found so by inquisition, the notice shall be served upon such person or persons .... and iu such manner as the judge to whose court the cause is attached may direct : (C. O. 7, r. 5.) The court cannot order service to be effected in any other manner than that in which it could order a writ of summons to be served: (see O. XVI., r. 12a, April, 1880, cited post.) It seems now to be unnecessary to apply for directions as to service, unless service on the father, guarcQan, or person with whom the infant or lunatic resides, or under -miose care he is, cannot be effected : (see O. IX., rr. 4, 5 ; Wbit op StrMMONS.) For the purpose of procuring the direction of the judge [where neces- sary] as to the manner of serving notice of a [judgment] or order, pursuant to C. O. 7, r. 5 {swp.), the plaintiff is to make an ex parte application by summons, and thereupon to show by affidavit as far as he is able — 1. With respect to Infants : The ages of the infants. Whether they ha.ve any parents or testamentary guardians, or gua,rdians appointed by the court Where and under whose care the infants are residing, at whose expense they are maintained, and in case they have no father or guardian, who are their nearest relations. And that the parents, guardians, re]a,tions, or persons on whom it is proposed to serve the notice, have no interest in the matters in question, or if they have, the nature of such interest, and that it is not adverse to the interests of the infants : (Ch. Beg. Aug. 1857, r. 7.) 2. With respect to persons of \msound mind not found so by inquisi- tion: Where and under whose care such persons are residing, and at whose expense they are maintained. Who are their nearest relations, and that such relations, or persons upon whom it is proposed to serve the notice, have no interest in the matters in questions, or if they have, the nature of such interest, and that it is not adverse to the interest of the persons of unsound mind : (Oh. Reg., Aug., 1857.) The order on the summons is drawn up by the registrar; and the service must be strictly in accordance therewith, a copy of the order being served at the same time : (Dan. 360.) (c) On Persons out of the Jwrisdiction. An order is necessary for leave to serve persons out of the jurisdiction ; it maybe obtained on ex paHe summons, supported by an affidavit showing the nature of his interest, and the place or country where he is supposed to be .residing : (Dan. 360.) 3. How Sbeved. (a) Generally. The notice of the decree must be served personally unless otherwise directed : (Dan. 359.) Where a husband and wife have to be served, the notice must be served on eaSh personally, notwithstanding the action does not relate to the wife's separate estate, and they are residing together : (Id.) Judgment. 479 (6) On Infants or Lunatics not so Found. Notice of a judgment or order pursuant to the Act (15 & 16 Viet. c. 86, s. 42), on an infant or person of unsound mind not so found by inquisition shall be served in the same manner as a writ of summons in an action : (0. XVI., r. 12a, April, 1880.) 4. FoBM OF Notice and Mbmoeandum. Notice of a [judgment] or order shall be entitled in the cause, and there shall be indorsed thereon a memorandum in the form or to the effect following, that is to say, " Take notice, that, from the time of the service of this notice \_or, as the case may be, the infant, or person of unsound mind,] will be bound by the proceedings in the above cause in the same manner as if you [^or, the said infant, or person of unsound mind] had been originally made a party to the suit ; and that you [or, the said infant, or person of unsound mind] may, by an order of course, have liberty to attend the proceedings under the within-mentioned [judgment] [or, order] ; and that you [or, the Said infant, or person of unsound mind] may, within one mouth after the service of this notice, apply to the court to add to the [judgment] [or, order]" ■ (C. O. 23, r. 20.) Service of a copy of the judgment endorsed as above is equivalent to service of notice : (Dam. 362.) 5. Dispensing with, ok Ordebing Stjbstitttted, Sbevicb. Where, upon the hearing of the summons to proceed [on a judgment] it appears to the judge that, by reason of absence, or for any other sufficient cause, the service of notice of the [judgment] or order upon any party cannot be made or ought to be dispensed with, the judge may, if he shall think fit, wholly dispense with such service, or may, at his discretion, order any substituted service, or notice by advertisement, or otherwise in lifen of such service: (G. O. 35, r. 18.) [As to dispensing with service of notice of judgment in partition actions, see 39 & 40 Viet. c. 17, s. 3 ; Pabtition.] [As to ordering any particular mode of service on infants or lunatics (not so found), see sup., 3 (6) ; Writ op Summons.] The application is generally by ex parte summons, supported by evidence of the facts on which it is founded : (Dan. 361.) Where a special mode of service is directed am order is generally drawn up by the registrar containing a direction that a copy of it will be served with the notice : (Id.) When service is dispensed with, an order is not usually drawn up, but the fact is mentioned in the chief clerk's certificate of the result of the proceedings : (Id.) The judge generally proceeds to give directions as to the manner in which the judgment shall be prosecuted, notwithstanding evidence is not adduced to satisfy him that all proper parties have been served with notice of it : (Dam. 361 ; O. XXXV., r. 16.) 6. Filing Mbmobandum. A memorandum of the service upon any person of notice of the [judg- ment] shall be entered in the [Central] Office .... upon due proof by affidavit of such service : (C. O. 23>.r. 19.) The form of memorandum is given in Schedule E. 31 to the Rules of April, 1880.) 7. Ieeegulae Seevioe. When it appears by the affidavit that the service has not|;been effected in accordance with the ordinary practice, and the master refuses to enter the memorandum, the court's sanction to the entrymaybe obtained bymotion 480 Judgment. ex parte ; or wlieii directions for serrioe have been given at chambers, or service is required for tbe purpose of proceedings there, on ex parte application at chambers without summons. The sanction is evidenced by the registrar's or chief clerk's indorsement of the affidavit, and no formal order need be drawn up : (Dan. 362.) 8. Leaving Master's Obetiticate at Chambers. A copy of every certificate by a [Master of the Supreme Court] of his entry of a memorandum of service of notice of a [judginentj or order, certified by the solicitor, is to be left at chambers : (Ch. Keg., Aug., 1857, r. 8.) 9. Effect of Service. (a) On Interests. After such notice [the persons served] shall be bound by the proceedings in the same manner as if they had been originally made parties : (15 & 16 Vict. o. 86, s. 42, r. 8 ; O. XVI., i-. 11.) The interest of the party served in the subject matter of the suit is bound, but he cannot be made to account unless he is made a party to the action, or some independent proceeding is taken to enforce his liability : Walker v. Seligmann, L. Rep. 12 Eq. 152.) (6) Liberty to Attend. [Any psirty served] may, by an order of course, [obtained on petition of course at the BoUs], have liberty to attend the proceedings : (15 & 16 Vict. c. 86, s. 42, r. 8 ; O. XVI., r. 11.) He is then entitled to notice of and to attend the proceedings as if originally a party : (Ayek. 232.) Infants and lunatics not so found attend by their guardians ad litem : (see Parties.) The order for them to attend is made on the same application as the order appointing the guardian : {Id.) Where the plaintiff is, after judgment, found to have no title, the suit may be stayed on the application of a person served with notice of judg- ment : {Houseman v. Houseman, L. Rep. 1 Ch. Div. 535 ; 34 L. T. Rep. N. S. 663; 24"W. R. 592.) (c) Adding to Judgment [see post, XVIII.] XVII. AMENDING JUDGMENT. Clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission, may at any time be corrected by the court or a judge on motion without an appeal : (O. XLIa., Dec, 1879.) Where a motion for an interim injunction was adjourned to the trial of the action, no provision being made for the costs of the motion, and at the trial judgment was given for the plaintifB on the substantial question at issue, with the general costs of the action ; but no express provision was made for the costs of the adjourned motion, though liberty to apply to the court was expressly reserved, and the judgment was drawn up, passed, and entered, it was held on motion, asking that the judgment mi^ht be varied or corrected by giving the plaintifE the costs of the adjourned motion, that, either under the liberty to apply reserved by the judgment, or under the liberty to apply implied in the order adjourning the motion, or by virtue of Order XLIa., the court had jurisdiction to order the payment of the costs in question ; and a separate order was made, directing the taxation and payment of the plaintiff's costs of the motion : {Writz v. Hobson, L. Rep. 14 Ch. Div. 542 : 42 L. T. Rep. N. S. 677.) For cases under the old rule (0. O. 23, r. 21), see Seton. 1547-8. Judgment. 481 XVIII. ADDING TO JUDGMENT. 1. Who may Apply. [See sup. XVI.] 2. How Application Made. The application is by summons served on the solicitors of all parties to the action, and of all persons who have obtained orders to attend: (Dan. 363 ; Foster v. Foster, L. Rep. 3 Oh. App. 330 ; 17 L. T. Rep. N. S. 403 ; 37 L. J. 138, Oh. ; 16 W. R. 238.) 3. Time. The application must be made within one month after service of the judgment : (0. O. 23, r. 18.) 4. Appeal ebom Oedee. The order made in chambers may be appealed from by motion to vary or discharge [Foster v. Foster, sup.), and no time is limited, though delay is considered on the question of oosts : {Id.) XIX. ENROLMENT. Enrolment of a judgment pronounced since the 2nd of Nov. 1875 is useless : [Sastie v. Sastie, L. Rep. 2 Oh. Div. 304.) ' As to enrolment of decrees prior to that date, see Seton, 1549-51. An application to vacate enrolment must be made to the Lord Chancellor : {Allan v. United Kingdom, Telegraph Company, 24 W. R. 898, cited Seton, 1551.) XX. REGISTRATION. A memorandum on parchment of the judgment must be handed to the Registrar of Judgments at the Central OfiSce : (Ayck. 234 ; Centeal Office.) The Registrar of Judgments shall not receive any memorandum of a judgment, execution, lis pendens, order, rule, annuity. Crown debt, or other incumbrance, or any memorandum of satisfaction relating to the same, for registration, after the hour of two in the afternoon : (O. LXa., r. 7, April, 1880.) As to vacating registration, see 30 & 31 Vict. c. 47, s. 2. XXI. SATISFACTION. Satisfaction must be entered at the Central Office by jBling a satisfaction piece in the form prescribed by the general rvdes of the judges, dated Hilary Term, 1853, section 80, with such modifications as may be proper : (Reg. Notice, 1876.) In order to acknowledge satisfaction of a judgment it shall be requisite only to produce a satisfaction piece, in form .... mentioned [in the rule] and such satisfaction piece shall be signed by the party or parties acknowledging the same, or their personal representatives; and such signature or signatures shaU be witnessed by a practising [solicitor] expressly named by him or them, and attending at his or their request, to inform him or them of the nature and efEect of such satisfaction piece before the same is signed, and which solicitor shall declare himself, in the attestation thereto, to be the solicitor for the person or persons so signing^ the same, and state he is witness as such solicitor (provided that.a judge at chambers may make an order dispensing with such signature under special circumstances, if he thinks fit) ; and in cases where the satisfaction piece is signed by the personal representative of a deceased, his representative character shall be proved in such manner as the Master may direct : (R> G. H. T. 1853, r. 80.) 1 1 482 Judgment. Upon a satisfaction piece duly signed and attested in accordance with the 80th Rule of Hilary Term, 1853, being presented to the clerk of the iudgments of the masters in the court in which the judgment has been signed, he shall file the same and enter satisfaction in the judgment book against the entry of the said judgment, and no roU shall be required to be carried in for the purpose of entering satisfaction on a judgment : (R. G. E. T., 1867.) XXII. SEARCHES FOR JUDGMENTS, &c. [Any person is at liberty to make a search himself, as heretofore (Notice of Chifef Clerk of Registrar of Judgments of the 10th April, 1880), but [the Registrar of Judgments shall, on request in writing giving sufficient parti- culars, and on payment of the prescribed fee, cause a search to be made in the registers or indexes under his custody, and issue a certificate of the result of the search : (O. LXa., r. 8, April, 1880.) There must be a separate requisition for every person searched for : (Ch. CI. Notice of 10th April, 1880.) The form of requisition for a search may be obtained gratis at the register office : {Id.) The form is as follows : To the Registrar of Judgments, Eoyal Conrtaof Jnstiee, London, W-C. The day of 18 . Search for judgments, Utes pendentes, and Crown debts for five years ending the day of 18 . And for annuities and executions from the years 1855 and 1864 respectively, to the said day of 188 . In the following same : Surname. (») Christian name or names. Usual or last known place of abode. Title, Trade or Profession. (o) The name must be legibly written with full address and additions. Name and address of > Solicitor j [State if it is desired that the certificate of result be forwarded through post- office.] : {Id.) The period stated in the form over which the search should extend, is the usual search made for incumbrances in the office by solicitors. If it is required that the search should cover any o^iher periods of time, the parti- culars on the f a«e of the form can be varied to meet the case, or a full indorsement be written on the back of requisition, of the time over which the search is desired to be made : {Id.) The requisition is so framed, that a search can be directed to be made up to two o'clock on any following day, after which hour no incumbrances can be registered. The object in limiting the time for registering is intended to enable a purchaser to complete his purchase, without risk of execution creditors and other incumbrancers registering their charges at the time, or immediately before his purchase, if such purchase takes place after two o'clock : {Id.) The requisition for search should be forwarded to the registrar some days before the certificate of the result of search is required to be issued : (Id.) As to the fee to be paid for the certificate, see Fees. Judgment. 483 The fee is in addition to the search fee of one shiUing : (Ch. 01. Notice of 10th April, 1880.) For furuier particulars, or forms of requisition for search, application can be made personally at the register office, or by letter addressed to the ilegistrar of Judgments, Royal Courts of Justice, London, W.C. : (Id.) XXII. SETTING ASIDE. 1. By Dbfaitlt. Any judgment by default, whether under this order or under any other of these nues, may be set aside by the court or a judge, upon such terms as to costs or otherwise as such court or judge may think fit : (O. XXIX., r. 14.) Incaseof [final judgment onj non-appearance bythe defendant where the writ of summons is especially endorsed, under O. III., i-. 6 .... it shall be lawful for the court or a judge to set aside or vary such judgment upon such terms as may seem just : (O. XIII., r. 3.) Where to a writ specially indorsed, defendant appeared and obtained leave to defend, and judgment was signed for defatdt of delivering defence, it was set aside, default being made under a mistaken impression that plaintiff ought first to deliver statement of claim : (Athins v. Taylor, W. N. 1876, p. 11.) Where defenda,nt obtained leave to amend his defence by pleading matter and adding a counter-claim that had arisen after delivery of defence, to which plaintifE delivered a reply saying that the defence and counter-claim had not arisen before action, and then, defendant having made default in delivering a rejoinder, plaintiff obtained an order to enter judgment on the defence and counter-claim, the Court of Appeal ordered the judgment to be set aside, the plaintifE to pay the defendant the balance due on the counter-claim after deducting the costs up to the time wheu the defence and counter-claim ought to have been properly pleaded and the costs of appeal : (Ellis v. Munson, W. N. 1876, p. 253.) In the case of judgment for default in entering an appearance, lapse of time is not of itself a sufficient objection to an application to set it aside, if the defendant has acted bond fide and the delay has done no harm : (AUwood V. Chichester, L. Rep. 3 Q, B. Div. 722 ; 38 L. T. Rep. N. S. 733 ; 47 L. J. 300, Q. B. ; 26 W. R. 320.) Where substituted service, only, of the writ was effected, and judgment signed for default of appearance, the defendant, alleging that he haid had no notice of the action, and that he had a good defence on the merits, was allowed to defend on the terms of giving security for the amount of the judgment remaining unsatisfied and the costs : (Watt v. Ba/rnett, L. Rep. 3 Q. B. Div. 363 ; 38 L. T. Rep. 903 ; 26 W. R. 745.) 2. On Non-appeabance at Teiai,. Any verdict or judgment 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 ; such application may be made either at the assizes or in Middlesex : (O. XXXVI.,r.20.) Where a party's solicitor has inadvertently allowed judgment to go against his client through non-appearance or being unready to proceed at the trial, the judgment wiU, as a matter of course, be ordered to be set aside, and the case wiQ be restored to the paper, on payment of the costs of the days, of aU costs thrown away, and of the costs of the application : (Burgoine V. Taylor, L. Rep. 9 Oh. Div. 1 ; 38 L. T. Rep. N. S. 438 ; 47 L. J. 642, Ch. ; 26 W. R. 568 ; CocTcle v. Joyce, L. Rep. 7 Ch. Div. 56 ; 37 L. T. ii2 484 Judgment. Rep. N. S. 428 ; 47 L. J. 543, Ch. ; 26 W. R. 59 ; Wright v. Clifford, W. N. 1878, p. 38 ; 47 L. J. 543, Ch. ; 26 W. R. 568 ; King v. Sande- man, 38 L. T. Rep. N. S. 461 ; 26 W. R. 569.) 3. Wheee Finding Wbongly Bnteeed. Where, at or after the trial of am action by a jury, the judge has directed that any judgment be entered, any party may, without any leave reserved, apply to set aside such judgment, and enter any other judgment, on the ground that the judgment directed to be entered is wrong by reason of the judge having caused the finding to be wrongly entered with reference to the &iding of the jury upon the question or questions submitted to them : (O. XL., r. 4,' Dee. 1876, repealing O. XL., r. 4, r. 5 so far as it afEected trials before a judge, and r. 6.) An application under this rule shall be to the court of appeal : (Id.) Where a motion to set aside a judgment and enter any other judgment is made to the Court of Appeal, it must be made on the usual fourteen days' notice of appeal {Foster v. Roberts, W. N. 1877, p. 11), and not an ex parte motion : {Jones v. Davis, W. N. 1877, p. 86.) Where the judge directs the jury that on the undisputed facts they ought to find a verdict for one of the parties, and a verdict is accordingly entered for that party, and judgment given thereon, the proper course is to move for a new trial, on the ground of misdirection, and not to appeal to the Court of Appeal : {Yetts v. Foster, 38 L. T. Rep. N. S. 742 ; 26 W. R. 745.) Where the judge was asked to nonsuit the plaintiffs, or to direct a finding for the defendants upon the ground that no evidence had been given in support of the plaintiffs' case ; but refused to do so, and the jury found the issues left to them in favour of the plaintiffs, and the judge directed judg- ment to be entered for the plaintiffs, and stated his reasons for holding that there was evidence to support the finding of the jury, it was held, that the defendants' ground of complaint being for misdirection, they ought not to have appealed, but applied to the Exchequer Division for a new trial : {Da,vies v. Felix, L. Rep. 4 Ex. Div. 32 ; 39 L. T. Rep. N. S. 322 ; 48 L. J. 3, Ex. ; 27 W. R. 108.) Where in an action tried by a jury the judge has given judgment for one party on the findings of the jury, the other party may, without ap- pealing from such judgment, move for a new trial, on the ground that the findings are against evidence, and the Divisional Court may on such motion enter final judgment under Order XL., r. 10 : {Hamilton and Co. v. John- son and Co., 41 L. T. Rep. F. S. 461.) When at the close of the plaintifE's. case the judge held that the evidence was not suflB.cient to maintain the action, and non-suited the plaintiff, the Court of Appeal has held that the plaintiff should move for a new trial in a divisional court, and caunpt appeal from the judgment entered at the trial to the Court of Appeal : {Mty v. Wilson, L. Rep. 3 Ex. Div. 359 ; 39 L. T. Rep. N. S. 83 ; 47 L. J. 664, Q. B. ; 27 W. R. 160.) 4. Where Judgment Wrong on Finding. Where, at or after the trial of an action before a judge, the judge has directed that any judgment be entered, any party may, without any leave reserved, apply to set aside such judgment, and to enter any other judg- ment, upon the ground that upon the fimding as entered, the judgment so directed is wrong : (O. XL., r. 4, Dec. 1876.) An application under this rule shall be to the Court of Appeal {Id.), by notice of appeal : (see swp., 3.) Judgment. 485 5. Nonsuit. In any case of mistake, Surprise, or accident, any judgment of nonsuit may be set aside on such terms, as to payment of costs and otherwise, as to the court or a judge shall seem just : (O. XLI., r. 6.) When the facts are disputed the plaintiff must apply to a divisional court for a new trial : {Etty v. Wilson, L. Rep. 3 Ex. Div. 359 ; 39 L. T. Rep. N. S. 83 ; 47 L. J. 664, Q. B. ; 27 W. R. 160.) 6. Wheeb obtained by Feattd. As to whether a judgment obtained adversely can be impeached for fraud or perjury, see Flower v. Lloyd (L. Rep. 10 Oh. Div. 327). A judgment by consent can only be set aside on the ground of fraud, or of mistake (if at all), by a judgment in a substantive action impeaching the judgment : (see Compeomise.) XXrV. HOW JUDGMENT AFFECTS INFANTS. 1. Geneeailt. An infant defendant is as much bound by a judgment as an adult,_ and if absolute judgment is given against an infant, he can only impeach it on the same grounds as an adult : (Dan. 149.) Where a conveyance is required from an infant, instead of inserting a clause allowing him a day to show cause, a vesting order may be made under the Trustee Act, 1850 : [see Teustees ; Foster v. Parher, L. Rep. 8 Oh. Div. 147.] 2. SuBPCENA TO Show Oaitse. Where an iafant has a day given him by the judgment to show cause against it, a subpoena to show cause is sealed without production of the decree or judgment : (Dan. 155.) The subpoena is served by delivering a copy thereof, and of the indorsement to the late infant personally, or to his servant or some member of his family at his dwelling-house or usual place of abode, at the same time producing the original subpoena : (Id.) If service cannot be thus effected, application is made to the court by ex parte motion, supported by affidavit, to direct some other mode of service, and a copy of the order (if any) made, must be served with the subpoena as prescribed : {Id.) . , . , , i The service shall be of no validity if not made withm twelve weeks after the teste of the writ : (0. O. 28, r. 9.) 3. How Judgment made Absolute. If the late infant does not appear within the time limited, the judgment 18 made absolute on an ex parte motion, supported by an affidavit of service, evidence of infant being of age, and registrar's certificate of no cause shown : (Dan. 155.) 4. Geounds foe Impeaching. The grounds are fraud or collusion between the plaintiff, and the late infant's guardian ; error in the judgment, existence of grounds of defence which were not before the court, or were not insisted upon at the hearmg ; discovery of new matter upon which the judgment may be shown to be wrong : (Dan. 156.) [And see Foeeclosuee.] 5. Time foe Impeaching. The infant need not wait till he is of age to impeach a judgment for fraud or collusion : (Dan. 156.) In other cases he must generally so wait : (Dan. X6».) 486 Judgment. XXV. ENFORCING JUDGMENT. 1. English Judgment. (a) House of Lords [see Appeal]. (6) Supreme Cowrt [see Execution]. fc) Ecclesiastical Cowrt. _ As to enforcing decrees of Ecclesiastical Coui"ts by writ de contmnace capiendo, and sequestration, see 2 & 3 Will. 4, c. 93, ss. 1 and 2 ; Seton, 1552. {d) Lancaster Palatine Court. Whenever a plaintiff or defendant in any suit or proceeding in which a judgment or order shall have been made by the County Palatine Court of [Lancaster, or on appeal therefrom], shall reside or withdraw his person or goods out of the jurisdiction of the [Palatine] Court, and also when- ever any [judgment] or order of the same court cannot be fully enforced by [or on appeal therefrom] by reason of the non-residence of any party to be bound thereby within the jurisdiction of the [Palatine] Court, then and in every such case it shall be lawful for the [Chancery Division] upon the application of any person entitled to the benefit of such-judgment or order, and upon the production of a transcript of such judgment or order, or such part thereof respectively as cannot be enforced for the reasons aforesaid, under the signature of the registrar of the said [Palatine] Court, and an affidavit that by reason of such non-residence or removal as aforesaid such judgment or order, or such part thereof as aforesaid cannot be enforced, to make such judgment or order, or so much thereof respectively as cannot be enforced for any of the reasons afore- said, a [judgment] or order of the Court of Chancery Division, and thereupon such [judgment] or order, or such part thereof respectively as aforesaid, shall and may be enforced against such of the parties bound by the same as shall be within the jurisdiction of the [Chancery Division], and all proceedings shall and may be had thereupon as if such judgment or order had been origiually made by the Chancery Division, and all the reasonable costs and charges of and consequent upon such application shall and may be recovered in like manner as if the same were part of such judgment or order : (13 & 14 Vict. c. 43, s. 15 ; 17 & 18 Vict. c. 82, s. 10.) The Court of Appeal in Chancery of the County Palatine was empowered to make orders according to the practice of the Court of Chancery in aU cases in which by reason of any person being out of the jurisdiction of the County Palatine Court, or otherwise, effectual pro- tection could not be given to any ward of the court, or to any executor, administrator, officer of court, or other person entitled to its protection, or in which for the same reason, or otherwise, any contempt of the court could not be effectually punished : (17 & 18 Vict- c. 82, s. 7.) There shall be transferred to and vested in [the Court of Appeal] all jurisdiction and powers of the Court of Appeal in Chancery of the County Palatine of Lancaster : (J. A., 1873, s. 18.) The application must be made to the Court of Appeal, and is granted as a matter of course : (Re Longdendale Cotton Spinwmg Company, L. Rep. 8 Ch. Div. 150 ; 38 L. T. Rep. N. S. 776 ; 26 W. R. 491.) (e) Stannaries Court. Where any [judgments] or orders, whether for payment for money or otherwise, cannot be conveniently or effectually enforced by the ordinary process of the court of the vice-warden within the jurisdiction thereof, it shall be lawful for the [Chancery Division] or for any judge thereof. Judgment. 487 sitting in court or at chambers, upon the application of a party entitled to the benefit of such [judgment] or order, and production of a certificate from the registrar of the court of the Tice warden under the seal of the court of the .... judgment or order, or of such part thereof as cannot be so enforced, as aioresaid, and a satisfactory affidavit of the ground of the application, to make the [judgment] or order, or so much thereof as cannot be enforced, a [judgment] or order of the [Chancery Difision], and thereupon such [judgment] or order, or such part thereof as aforesaid, shall and may be enforced by such proceedings and writs as would or might have been taken or issued if the same had been originally made by the [Chancery Division], and all the reasonable costs of and consequent upon such certificate and application, shall and may be recovered as if the same had been and were part of such [judgment] or order : (18 & 19 Vict. c. 32, s. 10.) 2. IbISH jTTDGtMENT. In all cases where, in any suit between party and party any [judgment] shall be pronounced, or any order made for payment, or for accounting for money, by the High Court of [Justice in] Ireland, the Lord Chancellor, Lord Keeper, or Lord Commissioners for the custody of the Great Seal of Ireland for the time being respectively, shall, upon application made to him or them respectively, cause a copy of such order or [judgment] to be exemplified and certified to the [Chancery Division] in England, under the Great Seal of Ireland ; and [any judge of the Chancery Division] in England shall forthwith cause such order or decree when it shall be presented [to him], so exemplified, to be enrolled in the Rolls of the [Court], and shall cause process of attachment and committal to issue against the person of the party against whom sNich order or [judgment] shall have been made respectively, in order to enforce obedience to and performance of the same, as fully and effectually to all intents and purposes, as if such order or [judgment] had been originally pronounced in the [Chancery Division] in England : (41 Geo. 3, c. 90, s. 6 ; 40 & 41 Vict. c. 57, 8. 71 ; Seton, 1551.) By 5 Geo. 4, c. 3, these provisions are extended to orders made in any matter or proceeding by petition in cases of minors, bankrupts, idiots, or lunatics : (Seton, 1561). Where judgments are obtained or entered up in the High Court of Justice in ... . Ireland for any debt, damages, or costs, on production ... to the master at the Central Office of a certificate of such judg- ment purporting to be signed by the proper officer of the court where such judgment has been obtained or entered up, such certificate is regis- tered by such master in a register to be kept for that purpose, to be called " The Register for Irish Judgments ; " and shall, from the date of such registration, be of the same force and effect, and all proceedings shall and may be had and taken on such certificate, as if the judgment of which it is a certificate had been a judgment originally obtained or entered up on the date of such registration as aforesaid in the court in which it is so registered ; (31 & 32 Vict. c. 54, s. 1.) All the reasonable costs and charges attendant upon the obtaining and registering snch certificate shall be recovered in like manner as if the same were part of the original judgment : (Id.) No certificate of any such judgment shall be registered as aforesaid more than twelve months after the date of such judgment, unless appli- cation shall have been first made to and leave obtained from the court or a judge of the court in which it is sought to register such certificate : {Id.) Orders, interlocutors, and decrees made by the court in Scotland for 488 Judgment. or in the course of the winding-up of a company shall be enforced in England and Ireland, and orders made by the court in Ireland for or in the course of winding-up of a company shall be enforced in England and Scotland by the courts which would respectively have had jurisdiction in the matter of such company if the registered office of the company were situate in the division of the United Kingdom where the order is required to be enforced, and in the same manner in all respects as. if such order had been made by the court required to enforce the same in the case of a company within its own jurisdiction : (Companies Act, 1862, s. 122.) Wliere any order, interlocutor, or decree made by one court is required to be enforced by another court .... an office copy of the order, inter- locutor, or decree so made, shall be produced to the proper officer of the court required to enforce the same, and the production of such office copy shall be sufficient evidence of such order, interlocutor, or decree having been made, and thereupon such last-mentioned court shall take such steps in the matter as may be requisite for enforcing such order, interlocutor, or decree in the same manner as if it were the order, &c., of the court enforcing the same : (Companies Act, 1862, s. 123.) 3. Scotch Jttdgment. On production to the master of the Central Office of the certificate, none of the forms contained in the schedule of any extracted decreet of the Court of Session in Scotland which shall be obtained for the payment of any debt, damages, or expenses purporting to be signed by the extea^tor of the Court of Session, or other officer duly authorised to make and subscribe extracts, or on production of the certificate of an extracted decreet of registration in the hooks of council and session purporting to be signed by the keeper of the register of deeds, bonds, protests, and other writs registered for execution in the books of council and session which shall hereafter be obtained, for the payment of any debts, damages, or expenses, such certificate shall be registered by such master in a register to be kept and called " The Register for Scotch Judgments,'' and Such certificate, when so registeted, ahSl, from the date of such registra- tion, be of the same force and efEept as a judgment obtained or entered up in the court in which it is so registered, and all proceedings shall and may be had and taken on such certificate as if the decreet of Which it is a certificate had been a judgment originally obtained or entered upon date of such registration as aforesaid in the court in which it is so registered : (31 & 82 Vict. c. 54, s. 3.) All the reasonable costs, charges, and expenses attendant upon the obtaining and registering such certificate shall be recovered in like manner as if the same were part of the decreet of which it is a certificate : (Id.) No certificate shall be registered as aforesaid more than twelve months after the date of such decreet, unless application shall have been first made to and leave obtained from the court or a judge of the court in which it is sought so to register such certificate : {Id.) Where a note of suspension of any such decreet shall have been passed, or a sist of execution shall have been granted thereon, by the said Court of Sessions, or any judge thereof, on the production of a certificate, under the hand of the clerk to the bill chamber of the Court of Session, of the passing of such note on the granting of such sist, to a judge of the court in which such certificate of such decreet has been registered, execution on such registered certificate shall be stayed until a certificate be produced tmder the hand of the clerk that such sist has been recalled or has expired. Judgment — Jurisdiction. , 489 or where the note of suspension has been passed, until there be produced an extract nnder the hand of the extractor of the Court of Session or other officer duly authorised to make and subscribe extracts, of a decreet of the said court repelling the reasons of suspense : (Id.) As to winding-up orders, see sup., 2. 4. Foreign Judgment. The judgment of a foreign court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce, and that anything which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action : {Schibshy v. The WestmhoUz, L. Rep. 6 Q. B. 155.) If an agreement contrary to the policy of the English law is entered into in a country by the law of which it is valid, an English court will not enforce it : (Bousillon v. Rousillon, L. Rep. 14 Ch. Div. 351 ; 42 L. T. Rep. N. S. 679 ; 49 L. J. 338, Oh. ; 28 W. R. 623.) JUDICIAL OPINION. [See TursTBES.] I. OP II. AS ni. OF IV. OF V. OF VI. OF VII. IN JURISDICTION. CODET OF CHANCEET. TO PENDING BUSINESS. SUPREME COUET OF JTJDICATUEE. CHANCEET DIVISION. ADDITIONAL JUDGE (Fet, J.). COMMISSIONEES OP ASSIZE, &c. LUNACY. I. OF COURT OF CHAJSTCERT. From and after the commencement of [the] Act the several jnrisdic- iions which by [the] Act are transferred to and vested in the .... High Court of Justice and the .... Court of Appeal respectively shall cease to be exercised, except by the said High Court of Justice and the .... Court of Appeal respectively, as provided by [the] Act ; and no further or other appointment of any judge to any court whose jurisdiction is so ■transferred shall be made except as provided by [the] Act : (J. A. 1873, s. 22.) II. AS TO PENDING BUSINESS. In all causes, matters, and proceedings whatsoever which shall have been fully heard, and in which judgment shall not have been given, or having been given shall not have been signed, drawn up, passed, entered, or otherwise perfected at the time appointed for the commencement of [the] Act, such judgment, decree, rule, or order may be given or made, signed, drawn up, passed, entered, or perfected respectively, after the commencement of [the] Act, in the name of the same court, and by the same judges and officers, and generally in the same manner, in all respects 490 , Jv/risdiction. as if [the] Act had not passed ; and the same shall take effect, to all intents and purposes, as if the same had been duly perfected before the commencement of [the] Act : (J. A. 1873, s. 22.) Every judgment, decree, rule, or order of any court whose jurisdiction is ... . transferred to the .... High Court of Justice or the .... Court of Appeal, which shall have been duly perfected at any time before the commencement of [the] Act, may be executed and enforced, and, if necessary, amended or discharged by the .... High Court of Justice and the . . . Court of Appeal respectively, in the same manner as if it had been a judgment, decree, rule, or order of the .... High Court or of the ... . Court of Appeal: (J. A. 1873, s. 22.) All causes, matters, and proceedings whatsoever, whether civil or criminal .... pending in any of the courts whose jurisdiction is ... . transferred .... at the commencement of [the] Act, shall be continued and concluded, as follows (that is to say), in the case of proceedings in error or on appeal, or of proceedings before the Court of Appeal in Chancery, in and before Her Majesty's Court of Appeal j and as to all other proceedings, in and before Her Majesty's High Court of Justice. The said courts respectively shall have the same jurisdiction in relation to all such causes, matters, and proceedings as if the same had been com- menced in the said High Court of Justice, and continued therein (or in the said Court of Appeal, as the case may be) down to the point at which the transfer takes place : (J. A. 1873, s. 22.) So far as relates to the form and manner of procedure, such causes, matters, and proceedings, or any of them, may be continued and concluded, in and before the said courts respectively, either in the same or the like manner as they would have been continued and concluded in the respective courts from which they shall have been transferred as aforesaid, or accord- ing to the ordinary course of the said High Court of Justice and the said Court of Appeal respectively (so far as the same may be applicable thereto), as the said courts respectively may think fit to direct : (J. A. 1873, s. 22.) Subject to any special order which may be made in any cause, matter, or proceeding, penifing in the Chancery Division, on the 1st of November, 1875, the following course of procedure shall be adopted: — All causes, matters, and proceedings, except causes (not being short causes) in which neither notice of motion for a decree had been served, nor replication been filed, before the 1st of November, 1876, shall, so far as relates to the form and manner of procedure, be continued and con- cluded in the same manner as they would have been in the High Court of Chancery. All such pending causes (not being short causes), in which, up to the 1st of November, 1875, no notice of motion for a decree had been served, or replication filed, shall be continued in the same manner as they would have been continued in the High Court of Chancery, up to the tinie at which such notice of motion or replication would have been served or filed, and shaU from that period be continued according to the ordinary course of the High Court of Justice. Any party to a pending cause may apply by summons at chambers that for special reasons a direction may be given for continuing such cause according to the ordinary course of the High Court of Justice : (0., 3rd Nov., 1876. For the decisions on this Order, see Wilson, 2nd edit., 19. Every cause or matter which, at the commencement of [the] Act, [was] depending in the Court of Chancery . . shall (subject to the power of transfer) be assigned to the same judge in or to whose court the same may Jurisdiction. 491 have been depending or attached at the commencement of [the] Act : (J. A., 1873, s. 42.) III. OP SUPREME COURT OP JUDICATURE. Prom and after the time appointed for the commencement of [the] Act, the several courts hereinafter mentioned (that is to say,) the High Court of Chancery of England, the Court of Queen's Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, [and] the Court for Divorce and Matrimonial Causes, shall be united and consolidated together, and shall constitute, under and subject to the provisions of [the] Act, one Supreme Court of Judicature in England : (J. A., 1873, s. 3 ; as amended by J. A., 1875, Sched. 2.) As to the Court of Appeal, see Appeal; and post, IV. Every additional judge, during the time that he attends the sittings of Her Majesty's Court of Appeal„shall have all the jurisdiction and powers of a judge of the said Court of Appeal, but he shall not otherwise be deemed to be a judge of the said court, or to have ceased to be a judge of tlio division of the High Court of Justice to which he belongs : (J. A., 1875, s. 4.) IV. OP CHAifCERT DIVISION. An objection to the jurisdiction of the court cannot be waived by consent : {Buse v. Boper, 41 L. T. Rep. N. S. 457.) Por the more convenient despatch of business in the .... High Court of Justice (but not so as to prevent any judge from sitting whenever required in any Divisional Court, or for any judge of a different division from his own), there shall be in the said High Court five divisions : (J. A., 1873, s; 31.) [One of] the said divisions shall be called . . . the Chancery Division : {Id.) The High Court of Justice shall be a Superior Court of Record, and, subject as in [the] Act mentioned, there shall be transferred to and vested in the said High Court of Justice the jurisdiction which, at the com- mencement of [the] Act, was vested in, or capable of being exercised by, all or any of the courts following ; (that is to say,) (1.) The High Court of Chancery, as a common law court as well as a Court of Equity, including the jurisdiction of the Master of the RoUs, as a judge or master of the Court of Chancery, and any jurisdiction exercised by him in relation to the Court of Chancery as a common law court ; (2.) The Court of Queen's Bench ; (3.) The Court of Common Pleas at "Westminster ; (4.) The Court of Exchequer, as a court of revenue, as well as a common law court ; (6.) The High Court of Admiralty ; (6.) The Court of Probate ; (7.) The Court for Divorce and Matrimonial Causes ; (8.) The Court of Common Pleas at Lancaster ; (9.) The Court of Pleas at Durham ; (10.) The Courts created by Commissions of Assize, of Oyer and Terminer, and of Gaol Delivery, or any of such Commissions. The jurisdiction by [the] Act transferred to the High Court of Justice shaU ioolude (subject to the exceptions [thereinafter] contained) the juris- diction which at the commencement of [the] Act, was vested in, or capable of being exercised by, all or any one or more of the judges of the 492 Jurisdiction. said courts, respectively, sitting in court or chambers, or elsewhere, when acting as judges or a judge, iu pursuance of any statute, law, or cnstom, and all powers given to any such court, or to any such judges or judge, by any statute; and also aJl ministerial powers, duties, and authorities, incident to any and every part of the jurisdictions so transferred : (J. A. 1873, 8. 16, as amended by J. A. 1875, Sched. 2.) All jurisdiction whatever which was exercised by any of the courts transferred is transferred to the High Court, and may be exercised by the Chancery Division : (see Beddow v. Beddow, L. Rep. 9 Oh. Div. 89 ; 47 L. J. 588, Oh. ; 26 W. R. 570.) Thus, the Chancery Division has unlimited power to grant any injunc- tion which any of the former courts might grant, except restraining proceedings in another division : {Id. ; Injunction.) And the power to grant prohibitions is now conferred on every judge of the High Court : {Sedley v. Bates, L. Rep. 13 Ch. Div. 498; 42 L. T. Rep. N. S. 41 ; 49 L. J. 170, Oh. ; 28 W. R. 365.) But the Chancery Division can only grant a mandawMs to direct the performance of some act, or something to be done, which is the result of an action where an action lies. It cannot grant a prerogative writ of mandamus to compel a corporation to perform a statutory dutjr : {Ghssop V. Hesion and Isleworth Local Board, L. Rep. 12 Ch. Div. 102 ; 40 L. T. Rep. N. S. 13.) And no judge of the High Court has jurisdiction to re-hear an order, whether made by himself or any other judge : {Re St. Nazaire Company, L. Rep. 12 Oh. Div. 88 ; 41 L. T. Rep. N. S. 110 ; 27 W. R. 854.) There shall not be transferred to or vested in the .... High Court of Justice, by 'virtue of [the] Act, — (1.) Any aj^ellate jurisdiction of the Court of Appeal in Chancery, or of the same court sitting as a Court of Appeal in Bankruptcy : (2.) Any jurisdiction of the Court of Appeal in Chancery of the County Palatine of Lancaster : (3.) Any jurisdiction usually vested in the Lord Chancellor or in the Lords Justices of Appeal in Chancery, or either of them, ifl rela- tion to the custody of the persons and estates of idiots, lunatics, and persons of unsound mind [see post, VII.] : (4.) Any jurisdiction vested in the Lord Chancellor in relation to grants of letters patent, or the issue of commissions or other writings, to be passed under the Great Seal of the United Kingdom : (5.) Any jurisdiction exercised by the Lord Chancellor in right of or on behalf of Her Majesty as visitor of any college, or of any charitable or other foundation : (6.) Any jurisdiction of the Master of the RoUs in relation to records , in London or elsewhere in England : (J. A. 1873, s. 17.) The jurisdiction over patents is now vested in the High Court of Justice {Be Morgan's Patent, W. N. 1876, p. 27) ; but the Master of the Rolls may, as keeper of the records direct the amendment of a clerical error in a specification filed in the Patent Office : {Re Johnson's Patent, L. Rep. 6 Ch. Div. 503 ; 46 L. J. 555, Ch.) The jurisdiction by this Act transferred to the said High Court of Justice and the said Court of Appeal respectively shall be exercised (so far as regards procedure and practice) in the manner provided by [this] Act, or by ... . Rules and Orders of Court . . . made pursuant to [the] Act ; and where no special provision is contained in [the^ Act or in any such Rules or Orders of Court with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have Jurisdiction. 493 been exercised by the respective courts from which such jurisdiction shall have been transferred, or by any of such courts : (J. A., 1873, s. 23 ; and see FORMEE Practice.) [The Chancery Division] shall conbist of the following judges (that is to say) — The Lord Chancellor, who shall be president thereof, the Master of the RoUs, and the Vice-Chancellors of the Court of Chancery, or such of them as shall not be appointed ordinary iudges of the Court of Appeal : (J. A., 1873, s. 31.) ' An additional judge, attached to the Chancery Division, has since been appointed : (see post, V.) This Act, except so far as herein is expressly directed, shall not afEect the office or position of Lord Chancellor : (J. A. 1873, s. 94.) The Lord Chancellor shall not be deemed to be a permanent judge of [the High Court of Justice] : (J. A., 1875, s. 3.) [The High Court of Justice] shall be deemed to be duly constituted duringandnotwithstandingany vacancy in the office of any judge of .... such court.: (J. A., 1878, s. 7.) Subject to any rules of court, and in the meantime until such rul^s shall be made, all business arising out of any cause or flatter assigned to the Chancery .... Division of the said High Court shall be transacted and disposed of in the first instance by one judge oidy, as has been heretofore accustomed in the Court of Chancery : (J. A., 1873, s. 42.) Any judge of the said High Court of Justice may, subject to any rnles of court, exercise in court or in chambers all or any part of the juris- diction by [the] Act vested in the said High Court, in all such causes and matters, and in all such proceedings in any causes or matters, as before the passing of [the] Act might have been heard in court or in chambers respectively, by a single judge of any of the courts whose jurisdiction is hereby transferred to the said High Court, or as may be directed or authorised to be so heard by any rules of court to be hereafter made. In all such cases, any judge sitting in court shall be deemed to constitute a court : (J. A., 1873, s. 39.) In all cases not .... expressly provided for [by the Supreme Court of Judicature Act, 1873] in which, under any .... Act [relating to the several courts and judges whose jurisdiction is transferred to the High Court of Justice and Court of Appeal] the concurrence or the advice or consent of the judge or any of the judges, or of any number of the judges, of any one or more of the courts whose jurisdiction, is ... . transferred to the High Court of Justice is made necessary to the exercise of any power or authority [now] capable of being exercised .... such power or authority may be exercised by and with the concurrence, advice, or consent of the same or a like number of judges of the said High Court of Justice : (J. A., 1873, s. 76.) AH Acts of Parliament relating to the several courts and judges, whose jurisdiction is ... . transferred to the .... High Court of Justice and the .... Court of Appeal respectively, or wherein any of such courts or judges are mentioned or referred to, shall be construed and take effect, so far as relates to anything done or to be done .... as if the said High Court of Justice or the said Court of Appeal, and the judges thereof, respectively, as the case may be, had been named therein instead of such courts or judges whose jurisdiction is so transferred respectively : (J. A., 1873, s. 76.) Every existing judge, who is by [the] Act made a Judge of the High Court of Justice or an ordinary Judge of the Court of Appeal, shall, as to tenure of office, rank, title, salary, pension, patronage, and powers Of appointment or dismissal, and all other privileges and disqualifications,. 494 Jurisdiction. remain in the same condition as if [thej Act had not passed ; and, subject to the change effected in their jurisdiction and duties by or in pursuance of the provisions of [the] Act, each of the ^aid existing judges shall be capable of performing and liable to perform all duties which he would have been capable of performing or liable to perform in pursuance of any Act of Parliament, law, or custom if [the] Act had not passed. No judge appointed before the passing of [the] Act shall be required to act under any Commission of Assize, Nisi Prius, Oyer and Terminer, or Gtaol Delivery, unless he was so liable by usage or custom at the commence- ment of [the] Act : (J. A. 1873, s. 11.) All the Judges of the [High Court of Justice] shall have in all respects, save as in [the] Act is otherwise expressly provided, equal power, authority, and jurisdiction : (J. A. 1873, s. 6.) Subject to the [previous provisions in the Supreme Court of Judi- cature Act, 1873] any rights of patronage and other rights or powers in- cident to any court, or' to the office of any judge of any court whose jurisdiction is transferred to the .... High Court of Justice, or to the .... Court of Appeal, in respect of which rights of patronage or other rights or powers no provision is or shall be otherwise made by or under the autho- rity of [the] Act, shall be exercised as follows, that is to say : if incident to the office of any existing judge shall continue to be exercised by such existing judge during his continuance in office as a judge of the .... High Court or of the Court of Appeal, and after the death, resignation, or removal from office of such existing judge shall be exercised in such manner as Her Majesty may by sign manual direct : (J. A. 1873, s. 86.) Upon the request of the Lord Chancellor, it shall be lawful for any judge of the Court of Appeal, who may consent so to do, to sit and act as a judge of the .... High Court or to perform any other official or ministerial acts for or on beha,lf of any judge absent from illness or any other cause, or in the place of any judge whose office has become vacant, or as an additional judge of any division ; and while so sitting and acting any such judge of the Court of Appeal shall have all the power and authorily of a judge of the ... . High Court : (J. A. 1873, s. 51.} Where, by sect. 17 of the Appellate Jurisdiction Act, 1876, or by [the] rules, any application ought to be made to, or any jurisdiction exer- cised by the judge before whom an action has been tried, if such judge shall die or cease to be a Judge of the High Court, or if such judge shall be a Judge of the Court of Appeal, or if for any other reason it shall be impossible or inconvenient that such judge should act in the matter, the president of the division to which the action belongs may, either by a special order in any action or matter, or by a general order applicable to any class of actions or matters, nominate some other judge by whom such jurisdiction may be exercised : (O. LVIIa., r. 2, Dee. 1876.) Every Vacation Judge shall have the same power and authority as here- tofore : (O. I,VIIa., r. 3, Dec. 1876 ; Yacations.) V. OP ADDITIONAL JUDGE (Pet, J.) [Mr. Justice Pry] the judge appoint«d in pursuance of [40 Vict. c. 9, is] attached to the Chajicery Division of the .... High Court of Justice, subject to such power of transfer as is in the Supreme Court of Judicature Act, 1873, mentioned : (J. A. 1877, s. 3 ; Teansfee.) The judge [so] appointed [is] in the same position as if he had been appointed a puisne judge of the .... High Court of Justice in pur- suance of the [Acts of 1873 and 1876] ; and all the provisions of [such Acts] for the time being in force in relation to the qualification and appointment of puisne judges of the .... High Court, and to their Jurisddction. 495 tenure of office, .... and all other provisions relating to such puisne judges, or any of them, with the exception of such provisions as apply to existing judges only, .... apply to the additional judge [so] appointed in the same manner as they apply to the other puisne judges of the said court respectively : (J. A. 1877, s. 3.) A puisne judge of the High Court of Justice means for the purposes of [the] Act a judge of the High Court of Justice other than the Lord Chancellor, the Lord Chief Justice of England, the Master of the Bolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron, and their successors respectively : (J. A. 1877, s. 5.) [Where] in the Chancery Division a transfer of a cause from one judge to another [is] ordered to be made or ... . deemed to have been made for the purpose only of trial or of hearing, .... the original and any further hearing shall take place before the judge to whom the cause shall be so transferred; but all other proceedings therein, whether before or after the hearing or trial of the 'cause, shall be taken and prosecuted in the same manner as if such cause had not been transferred from the judge to whom it was assigned at the time of transfer, and as if such judge had made the decree or judgment, if any, made therein, unless the judge to whom the cause is transferred shall direct that any further proceedings therein, before or after the hearing or trial thereof, shall be taken and prosecuted before himself or before an official or special referee : (O. LI., r. la, June, 1877.) No cause or matter shall, until further order, be assigned to ... . Mr. Justice Fry by the same being marked by the plaintiiO or petitioner with the name of the said Mr. Justice Fry : (Ld. Oh. Reg., l&th June, 1877.) Bach of the several causes which have been or shall be transferred to Mr. Justice Fry shall, until further, order be deemed to have been tran.s- -f erred to him for the purpose only of trial or of hearing: {Id~; and see Cave v. Cave, 43 L. T. Bep. N. S. 158 ; 28 W. B. 798. ; Tbansfeb.) VI. OF COMMISSIONEBS OF ASSIZE, &c. Her Majesty, by commission of assize or by any other commission, either general or special, may assign to any judge or judges of the High Court of Justice or other persons usually named in commissions of assize, the duty of trying and determining within any place or district specially fixed for that purpose by such commission, any causes or matters, or any questions or issues of fact or of law, or partly of fact and partly of law, in any cause or matter depending in the said High Court, or the exercise of any civil or criminal jurisdiction capable of being exercised by the said High Court ; and any commission so granted by Her Majesty shall be of the same validity as if it were enacted in the body of [the] Act ; and any commissioner or commissioners appointed in pursuance of this section shall, when engaged in the exercise of any jurisdiction assigned to him or them in pursuance of [the] Act, be deemed to constitute a court of the said High Court of Justice : (J. A. 1873, s. 29.) [In] commissions of assize, Oyer and Terminer, and Gaol Delivery, .... it shall be lawful for Her Majesty, if she shall think fit, to include .... any ordinary judge of the Court of Appeal or any judge of the Chancery Division to be appointed after the commencement of [the] Act, or any serjeant-at-la.w, or any of Her Majesty's counsel learned in the law, who, for the purposes of such commission, shall have all the power, authority, and jurisdiction of a judge of the said High Court : (J. A. 1873, s. 37.) All general and other commissions, issued under the Acts relating to 496 Jurisdiction — Lancaster JPalatine Court. the Central Criminal Courts or otherwise, by virtue whereof any judges of any of the courts whose jurisdiction is so transferred may, at the commencement of [the] Act, be empowered to try, hear or determine any causes or matters, criminal or civil, shall remain and be in fuU force and effect, unless and until they shall respectively be in due com-se of law revoked or altered : (J. A., 1873, s. 76.) rn. IN LUNACY. Any jurisdiction usually vested in the Lords Justices of Appeal in Chancery, or either of them, in relation to the persons and estates of idiots, lunatics, and persons of unsound mind, shall be exercised by such judge or judges of the High Court of Justice or Court of Appeal as may be intrusted by the sign manual of Her Majesty or her successors with the care and commitment of the custody of such persons and estates ; and all enactments referring to the Lords Justices as so intrusted shall be construed as if such judge or judges so intrusted had been named therein instead of such Lords Justices; Provided that each of the persons who may at the commencement of the principal Act be Lords Justices of Aj)peal in Chancery shall, during such time as he continues to be a judge of the Court of Appeal, and is intrusted as aforesaid, retain the juris- diction vested in him in relation to such persons and estates as aforesaid : (J. A, 1875, s. 7.) When the Lords Justices were appointed by the Lord Chancellor additional judges of the Chancery Division, they only acquired juris- diction to deal with original petitions (such as petitions under the Trustee Acts) entitled in Chancery and in lunacy, but that they have no original jurisdiction, such as the Court of Appeal in Chancery formerly possessed, to mate orders in a suit already attached to the Chancery Division : {Be Oxenden, 21 S. J. 707 ; and see Be Lamotte, L. Rep. 4 Ch. Div. 325 ; Tetistees.) JURY. [See Tbiai.] KEEPER OF RECORDS. [See JuEiSDiCTiON, IV.] LANCASTER PALATINE COURT. The jurisdiction as a court of first instance remains : (see J. A., 1873, ss. 16, 17.) _ The appointment by the court of a guardian to an Infant does not oust the jurisdiction of the Chancery Division to appoint guardians to such infant : {Be Alison's Trusts, L. Rep. 8 Ch. Div. 1 ; 38 L. T. Rep. N. S. 304; 47 L. J. 755, Ch. ; 26 W. R. 450.) All jurisdiction and powers of the Court of Appeal in Chancery of the County Palatine of Lancaster, and all jurisdiction and powers of the Chancellor of the Duchy and County Palatine of Lancaster when sitting Lancaster Palatine Court — Lands Glauses Act. .497 alone or apart from the Lords Justices of Appeal in Chancery as a judge of rehearing or appeal from decrees or orders of the Court of Chancery of the Countj Palatine of Lancaster [are transferred to and vested in] Her Majesty's Court of Appeal : (J. A., 1873, s. 18.) Judgments and orders of the Lancaster Palatine Court, and on appeal therefrom, may be enforced by the Chancery Division : [see Judgment.] LAND. [See BrEcovEET of Land.] LANDS CLAUSES ACT. I. INTEEPEETATION OF TEEMS. II. APPLICATION OF ACT TO PUTUEE UNDEETAKINGS. in. PAYMENT IN AND APPLICATION OP SUMS AMOUNTING TO 200J. (Bs. 69-70). 1. In what Cases Paid in. 2. To WHAT Account Paid. 3. Monet to Eemain in till Applied. 4. Intebim Investment and Payment of Dividends. 5. Application of Money. (a) How AppUed. (1) Discharge of IncnmbranceB. (2) Investment in Land or Buildings. (3) Payment to Party absolutely Entitled. (6) Petition. (1) Who may Present. (2) To what Branch of Court Presented. (3) Title. (4) Service. (c) Evidence. (d) Inqv/iries aa to Title, ^c. IV. PAYMENT AND APPLICATION OP SUMS UNDEE 200? BUT OVEE 20Z. (B. 71). 1. Payment. 2. Application. V. PAYMENT AND APPLICATION OP SUMS NOT EXCEEDING 20J. (s. 72). VI. COMPENSATION TO PEESONS NOT ABSOLUTELY ENTITLED. VII. APPLICATION OP MONEYS ARISING PEOM PAETLiL INTEBESTS (s. 74). VIII. EEPUSAL OE PAILUEE TO CONVEY, Ac. (s. 76). 1. Deposit op Pdechase-Money by Peomotebs. 2. Eeceipt to be Given. 3. Deed Poll to Pass Estate. 4. Application of Moneys. IX. POSSESSOES DEEMED TO BE OWNEES (s. 79). X. ENTEY UPON LANDS BEPOEE PUECHASE (bs. 85-87). 1. Deposit to be Made and Bond Given.. 2. To what Account Deposit Paid. 3. Eeceipt to be Given. 4. Investment of Deposit. 5. Application of Deposit. 498 Lands Glauses Act. XI. DEPOSIT WHEN PATMASTEB-GENEEAL'S OFFICE CLOSED. XII. COSTS. 1. Genebai. Bules. . 2. Enactments of L. C. C. Act, and Decisions on Pak- TICULAB MATTEB. Xin. TAXATION OF CONTETANCING COSTS [See iwp. XII., 2]. ' I. INTERPRETATION OP TERMS. The expression " the special Act,", used ia [the] Act, shall be construed to' mean any Act which .... [thereafter] passed which shall authorise ■the taking of lands for the undertaking to which the same relates, and with which [the] Act shall be so incorporated as aforesaid ; and the word " prescribed," used in [the] -Act .... shall be construed to refer tosuch matter as the same shall be prescribed or provided for in the special Act, and the sentence in which such word shall occur shall be construed as if, instead of the word "prescribed," the expression "prescribed for that purpose in the special Act " had been used ; and the expression " the works " or " the undertaking " shall mean the works or undertaking, of whatever nature, which shall by the special Act be authorised to be executed ; and the expression " the promoters of the undertaking " shall mean the parties, whether company, undertaikers, commissioners, trustees, corporations, or private persons, by the special Act empowered to execute .such works or undertaking : (L. 0. G. A., 1845, s. 2.) The following words and expressions, both in [the Lands Clauses Act] and the specifl-Act, shall have the [following] meanings .... unless there be something either in the subject or context repugnant to such construction (that is to say,) Words importing the singular number only shall include the plural number, and words importing the plural number only shall include the singular number : Words importing the masculine gender only shall include females : The word "lands" shall extend to messuages, lands, tenements, and hereditaments of any tenure : The word " lease " shall include an agreement for a lease : The word " month " shall mean calendar month : The word '' oath " shall include affirmation in the case of Quakers, or other declaration lawfully substituted for an oath in the case of any other persons exempted by law from the necessity of taking an oath : The word " county " shall include any riding or other like division of a county, and shall also include county of a city or county of a r town : . . . . Where, under the provisions of [the Lands Clauses Act] or the special Act, or any Act incorporated therewith, any notice shall be required to be given to the owner of any lands, or where any act shall be .authorised or required to be done with tie consent of any such owner, •the word " owner " shall be understood to mean any person or •corporation who, under the provisions of [the Lands Clauses Act] or tiie special Act, would be enabled to sell and convey lands to the promoters of the undertaking. The expression " the bank " shall mean the Bank of England where the same shall relate to moneys to be paid or deposited in respect of lands situate in England .... (L. 0. 0. A., 1845, s. 3.) .... In citing [the] Act .... in legal instruments, it [is] sufficient -to use the expression " The Lands Clauses Consolidation Act, 1845 : " (L. C. C. A., 1845, s. 4.) Lands Clauses Act. 499 n. APPLICATION OF ACT TO FUTURE UNDERTAKINGS. The Act [applies] to every undertaking authorised by any Act [there- after] .... passed, and [authorising] the purchase or taking of lands for such undertaking, and [is] incorporated with such Act ; and all the clauses and provisions of [the] Act, save so far as ... . expressly varied or excepted by any such Act .... apply to the undertaking authorised thereby, so far as the same [are] applicable to such undertaking, and as well as the clauses and provisions of every other Act .... incorporated with such Act, form part of such Act, and [are] construed together there- with as forming one Act : (L. C. 0. A., 1845, s. 1.) III. PAYMENT IN AND APPLICATION OF SUMS AMOUNTING TO 200J. (ss. 69, 70). 1. In what Cases Paid in. If the purchase money or compensation which shall be payable in respect of any lands or any illterest therein, purchased or taken by the promoters of the undertakmg from any corporation, tenant for life or in tail, married woman seised in her own right or entitled to dower, guardian, committee of lunatic or idiot, trustee, executor, or adminis- trator, or person having a partial or qualified interest only in such lands, and not entitled to sell or convey the same except under the provisions of this or the special Act, or the compensation to be paid for any permanent damage to any such lands, amount to or exceed the sum of two hundred pounds, the same shall be paid into court : (L. C. C. A., 1845, s. 69.) Where the purchase money of lands belonging to a corporation was p!\id by the company to the vendors, instead of being paid into court, it was, on motion, ordered to be paid into court for the purpose of interim protection : (Morg. & Ch. 36.) Payment into court may be dispensed with, and the money directed to be paid to another account, e.g., to a lunatic's account : (Be Milnes, L. Rep. 1 Ch. Div. 28; 34 L. T. Rep. N. S. 46 ; 24 W. R. 98.) 2. To WHAT ACCOTJNT PaID. [The] money [so] paid into court .... in respect of lands in England or Wales, shall be placed in the books at the Chancery Pay OflSce to the credit of ex parte the promoters of the undertaking, [describing them] in the matter of the special Act (citing it), as directed by the . . .' . Lands Clauses Consolidation Act, 1845, and some words shall be added in each case briefly expressive of the nature of the disability to sell and convey, by reason of which the money shall be sopaid in, as stated in the request for the direction to receive the mpney : (On. F. R. 1874, r. 32.) 3. Monet to Remain in till Applied. Such moneys shall remain so deposited until the same be applied to aome one or more of the following purposes [mentioned post, 5 (a)] : (L. C. C. A., 1845, s. 69.) As soon as the money is paid in, interest ceases to be payable by the company, unless there is a special agreement : (Morg. & Ch. 36.) 4. Interim Investment and Payment of Income. Until the money can be ... . applied [as mentioned post,'] it may, upon the order [of the court], be invested by the .... Paymaster- Oeneral ia the purchase of three per centum consolidated or three per centum reduced bank annuities, or in Government or real securities: (L. C. C. A., 1845, 8. 70.) The mouOT is " cash under the control of the court " ? {Be Wilkinson's Estate, L. Rep. 9 Eq. 343 ; Payment into and out op Ooxtbt.) An interim investment on mortgage will be sanctioned by the court, E E 2 500 Lands Glauses Act. subject to tin inquiry as to title, and as to the sufficiency of the security •• (Morg. & Oh. 39 ; Dan. 1867.) The money may be invested in East India Stock [Re Southwold Bail- way Company's Bill, L. Rep. 1 Ch. Div. 697 ; 34 L. T. Rep. N. S. 56 ; 24 W. R. 293), or Metropolitan Consolidated Stock: {Be Bedhead's Trusts, 39 L. T. Rep. N. S. 60.) .... The interest, dividends, and annual proceeds [of the interim invest- ment may be] paid, to the party who would for the time being have been entitled to the rents and profits of the lands : (L. C. G. A., 1846, s. 70.) The order for payment, to the executors of a deceased tenant for life, of arrears of dividends and apportioned dividends, may be made on summons. But a petition is necessary for payment of the other part of - the apportioned dividends, and of future dividends : {Be JolUffe's Estate, L. Rep. 9 Eq. 668.) In the case of trustees, the order has directed payment to any two for the time being, and to two trustees or either of them (Morg. & Ch. 40) ; and to the trustees for the time being of the will : {Be PaMon's Trusts,. W. N. 1878, p. 65.) When the company is in possession of the land, an order wiU be made for payment to the tenant for life before the conveyance is- executed : (Morg. & Oh. 39.) An order may be made for payment to a second tenant for Ufe on the death of the first: {Be Brent's Trusts, 8 W. R. 270.) As to payment to ecclesiastical persons, see Ex pa/rte Archbishop of Canterhwry, 2 De G. & Sm. 365 ; Be Davenant's Charity, 2 W. R. 344 ; Be Pearce, 24 Beav. 491 ; Be BuohinghamsMre Bailways, 5 Railway Gas. 702. As to payments in case of charities, see Be ColUns's Charity, 29 L. J- 168, Oh. ; Be Cod/rington, L. Rep. 18 Bq. 658. The income from money in respect of a burial ground wiU be paid to the person entitled to the burial fees : {Ex parte Sector of 8t. Martin's, L. Rep. 11 Eq. 23.) The application must be made by petition ; but where an order has been made on petition for investment of part of the fund, leave maybe granted to apply in chambers as to the investment of the balance : (Morg. & Gh. 39; Dan. 1868.) , As to the title of the petition, see post 5 (6) (3). One petition suffices both as to investment and as to payment of dividends. The petition must not be served on persons having charges on the inheritance prior to the life estate, nor on trustees : {Be Mm-ris, L. Rep. 20 Eq. 470.) The petition must not be served on trustees {Be Bowling, 45 L. J. 568, Gh.) ; or on remaindermen, unless an extraordinary investment is asked for: {Id.) The affidavit mentioned post 5 (c) is generally required (Morg. & Gh. 37) ; but a petition by a large public body, such as the president and scholars of a college for interim investment and payment of dividends, need not be supported by such an affidavit : (-Se Magdalen College, Oxford, 42 L. T. Rep. N. S. 822; W. N. 1880, p. 150.) 5. Application op Monet. {a) How Applied. (1) Discharge of Incumbrances. In the purchase or redemption of the land tax or the discharge of any debt or incumbrance afEecting the land in respect of which such money Lands Glauses Act. 501 shall have been paid, or affecting other lands settled therewith to the same or the like uses, trusts, or purposes : {Id.) A tenant for life who had redeemed the land tax was ordered to be reimbursed : {^x parte Northwick, 1 T. & Coll. Exoh. Rep. 166.) Both a leasehold interest and a quit-rent are incumbrances : (Morg. & Ch. 36 ; Dan. 1863.) Money paid for the purchase of lands of a corporation may be applied in the redemption of an incumbrance on other lands of the same corpora- tion (Morg. & Ch. 36 ; Dan. 1863) ; or in paying off a mortgage of tolls and bonds : [Re Derby Municipal Estates, L. Rep. 3 Ch. Div. 289 ; 24 W. R. 729.) (2) Investment in Land or Buildings. In the purchase of other lands, to be conveyed, limited, and settled upon the like uses, trusts, and purposes, and in the same manner, as ■the lands in respect of whicQi such money shall have been paid stood settled ; or If such money shall be paid in respect of any buildings taken under the authority of this or the special Act, or injured by the proximity of the works, in removing or replacing such buildings, or substituting others in their stead, in such manner as the court .... shall direct : (L. 0. C. A., 1845, s. 69.) " Settled " means simply " standing limited " • {Kelland v. Fulford, L. Rep. 6 Ch. Div. 491 ; 25 W. R. 606.) Even though the petitioner is -absolutely entitled, the money may be invested in other lauds : (Dan. 1864.) An order may be made to reinvest part : (Be Sowry, L. Rep. 8 Ch. App. 736.) Leave to apply in chambers as to the investment of the residue may be given : {Be Lapworth Charity, W. N. 1879, p. 37.) The moneys deposited may be employed, together with other trust moneys, in the purchase of one estate : (Morg. & Oh. 38.) As to investment in copyholds or leaseholds, see Morg. & Ch. 38 ; Dan. 1864.) Ground rents may be purchased : {Be Mason's Trust Estate, W. N. 1872, p. 77.) Land out of the jurisdiction — e.g., in the Isle of Man — may be purchased : {Be Taylor, 40 L. J. 454, Ch.) New buildings may be erected on the estate, if it will be beneficial to the estate, and if the remaindermen do not object : (Morg. & Ch. 36.) The court will not allow the money to be applied in repairs or in improvements which do not put new buildings on the ground : (Drake V. Trefusis, L. Rep.. 10 Ch. App. 364.) The fund directed to be applied in the erection of buildings will not be paid out until their completion, although it may be paid out on an under- taking to apply it as directed : (Dan. 1865.) The money has been applied— in payment to a rector recouping part outlay in building a farmhouse on the glebe (Ex parte Bector of Gamston, L. Rep. 1 Ch. Div. 477 ; 33 L. T. Rep. N. S. 803; 24 W. R. 359) ; towards the cost of lateral additions to a house, part of the settled estate (Be Speer's Trusts, L. Rep. 3 Ch. Div. 262 ; 24 W. R. 880) ; con- verting stables into dwelling-houses (Be Lymington Chapel, W. N. 1877, p. 226) ; in improving the water supply (Be CroTeer, W. N. 1877, p. 38) ; where the bishop and patron consented, towards expenses of improving and adding to a rectory house and of past outlay on pigstyes : (Ex parte 502 Lands Clauses Act. Rector of Claypole, L. Rep. 16 Eq. 574 ; Ex parte Rector of Holywell- cum-Needingworih, 27 W. R. 707.) Some of the above cases have been decided since the decision of the Court of Appeal in Drake v. Trefusis, sv/p. Applications have been refused that the money might be applied — in repairs of the chancel, or in paying off a Queen Anne's Bounty loan {Ex parte Rector of Grimoldby, L.JElep. 2 Ch. Div. 226 ; 24 W. R. 723) ; fai recouping past outlay in rebuilding a rectory {Williams v. Aylesbv/ry Railway Company, L. Rep. 9 Oh. App. 684) ; in recouping the tenant for life expenditure incurred in permanent improyements before the com- pulsory taking without expectation of having it repaid : {Re Stocks'^ Estates, 42 L. T. Rep. N". S. 46 ; W. N. 1880, p. 11.) (3) Payment to Party absolutely Entitled. In payment to any party becoming absolutely entitled to such money ^ (L. 0. C. A., 1845, s. 69.) Trustees having a povrer of sale are persons absolutely entitled {Re Bohson's Estate, L. Rep. 7 Ch. Div. 708; 38 L. T. Rep. N. S. 365; 47 L. J. 310, Ch. ; 26 W. R. 420) ; although there is no receipt clause : {Re Gooch's Estate, L. Rep. 3 Oh. Div. 742.) If there is no power of sale, the beneficiaries mrtst also apply : {Re Lowry, L. Rep. 8 Ch. App. 736.) Charity trustees are persons absolutely entitled : {Re Spv/rstowe's Charity, L. Rep. 18 Eq. 279.) The money may be paid out without consent of the Charity Com- missioners : {Re Lister's Hospital, 6 D. M. & G. 184 ; and see Sohrir V. Chiy, L. Rep. 5 Oh. Div. 901 ; 86 L. T. Rep. N. S. 600 ; 46 L. J. 648, Ch. ; 25 W. R. 547 ; Re Poplar and Blackwall School, L. Rep. 8 Ch. Div. 543; 39 L. T. Rep. N. S. 88; 26 W. R. 827 ; Hodgson v. Jbrsier-,W. N. 1877,. p. 74.) Where lands settled in trust for a widow during her life or until her second marriage, and, after her death or second marriage, in trust for sale, were purchased from the widow, the purchase money was, on the petition of the widow, ordered to be paid out to the trustees of the settlement, they undertaking to hold the same upon the trusts of the settlement : {Re Evami's Settlement, L. Rep. 14 Ch. Div. 511 ; 43 L. T. Rep. N. S. 172.) As to who are persons " absolutely entitled," see also Dan. 1866 ; Re Cwrwen's Settlement, W. N. 1880jp. 83. As to consent of Ecclesiastical Commissioners, see Morg. & Ch. 38. Where a good title to only part of the land taken is shown, a propor- tionate part of the purchase money will be paid out : {Re Perkes, 7 Railway Cas. 605.) Dower' must be valued, and the money paid out: {Re Hall, L. Rep. 9 Eq. 179.) Compensation in respect of commonable rights will be divided between the copyhold and freehold tenants of the manor : (Morg. & Ch. 37 ; Fox V. Amhurst, L. Rep. 20 Eq. 403.) Occupiers and freehold tenants of the copyholders and freeholders have no claim on the money : {Austin v. Amhurst, L. Rep. 7 Ch. Div. 689 ; 3S L. T. Rep N. S. 217; 47 L. J. 467, Ch. ; 26 W. R. 312.) As to freemen of a borough, see Nash v. Coombs, L. Rep. 6 Eq. 51. A tenant in tail must produce a properly executed disentailing deed before payment out to him, unless the fund is under 200i. ; (Iforg. & Oh. 38 ; Dan. 1866 ; Re Broadwood. L. Rep. 1 Ch. Div. 438 ; Re Reynolds, L. Rep. 3 Ch. Div. 61.) Money belonging to a married woman will, on her electing, by examina- Lands Clauses Act. 503 tion in court, to take the money as personalty, be paid out to her, or her husband, without a deed of acknowledgment: (Standering v. Hall, L. Eep. 11 Ch. Div. 662 ; Be Bobin, W. N. 1879, p. 95.) But the examination may also be dispensed with if the fund is of small amount : (Morg. & Ch. 38 ; Dan. 1866.) Where the fund is the property of a lunatic, the Chancery Division njay direct it to be carried over to the credit of the lunacy (Be Milnes, L. Rep. 1 Ch. Div. 28 ; 34 L. T. Rep. N. S. 46 ; 24 W. R. 98) ; or a Government annuity may be purchased, by an order in the Chancery Division and in Lunacy : [Be Brewer, L. Rep. 1 Ch. Div. 409 ; 34 L. T. Rep. N. S. 46 ; 24 W. R. 465.) (6) Petition. (1) Who may Present. Such money may be so applied as aforesaid upon an order of the court .... made on the petition of the party who would have been entitled to the rents and profits of the lands in respect of which such money shall have been deposited: (L. C. C."A., 1845, s. 70.) A tenant for life may petition, though the land is subject to a mortgage, or charged with an annuity, but the incumbrancer or annuitant cannot petition. Nor can a remainderman : (Dan. 1867.) A husband of a married woman petitioner should be made a co- petitioner : [Be Osborne, W. N. 1878, p. 179.) When a petitioner dies after an order made on the petition, an order will be made that the petition shall be continued and carried on by the executors: (Be Atkins' Estate, L.. Rep. 1 Ch. Div. 82; Be Bynevor Duffryn Collieries Company, W. N. 1878, p. 199.) (2) To what Branch of Court Presented. Where an order has been made by one branch of the court, subsequent applications should be made to the same branch : (See Transfer.) Where an order has been made for investment of part, leave may be given to apply in chambers as to the investment of the balance : (Be Lap- worth Charity, W. N. 1879, p. 37.) (3) Title. The petition should be entitled in the matter of the wUl or settlement afEecting the lands, and of the Lands Clauses Consolidation Acts, 1845, and 1869, and of the special Act, by its short title : (Seton, 1424.) (4) Service. The petition should be served on the company, but not on remaindermen, when it is for investment in land : (Seton, 1422.) Where the application is for investment in improvements, or in respect of moneys arising from leases or reversions [see post VII.], then remaindermen should be served. The petition must be served upon all persons, or their trustees, interested in a fund standing to the credit of a cause, as well as the matter of the Act. Where trustees are served they will be allowed their costs only when the fund cannot be dealt with without their appearing before the court : (Morg. & Ch. 54; Dan. 1868.) (c) Evidence. In the case of petitions .... authorising the sale of property for public purposes, where the purchase money is directed .... to be paid into court, the petitioners claiming to be entitled to the money so paid in must make an affidavit, not only verifying their title, but also stating that they are not aware of any right in any other person, or of any claim made by any other person, to the sum of I. in the said petition men- , tioned, or to any part thereof, or if the petitioners are aware of any such 604 Lands Clauses Act. Tight or claim, they must in such affidavit state or refer to and except the same: (C. O. 34, r. 3.) As to the necessity of the affidavit, see Morg. & Ch. 37 ; Dan. 1867. The affidavit may be made by one of several petitioners ; or by executors, where the tenant for life is old or infirm; or by his solicitor, where petitioner is too ill to make it himself ; or by their clerk, when the appli- cation is made by the trustees of a charity : (Morg. & Ch. 37 ; Dan. 1867.) Payment has been ordered on an affidavit verifying the title by a surviving trustee : (-Be Batty, W. N. 1877, p. 212.) {d) Inquiries as to Title, &c. The court wUl direct an inquiry as to the propriety of an investment in land, when not satisfied on the point ; but it wiU. approve the investment at once when it is satisfied, and subject to the approval of the title, after inquiry, will direct the conveyance to be executed : (Morg. & Ch. 38, 39 ; for form of order see 10 Hare App. 36 ; Seton, 1427.) Where the title has been approved by one of the conveyancing counsel, or where the fund invested is only 50Z., the inquiry as to title may be dispensed with : {Be Lapworth Charity, W. N. 1879, p. 37.) Leave may be granted to apply in chambers that the investigation may be dispensed with : {Be Slomfield, 25 W. R. 37.) IV. PAYMENT AND APPLICATION OP SUMS UNDER 2001. BUT OVER 202. (s. 71.) 1. Payment. If the purchase money or compensation shall not amount ^o the sum of two hundred pounds and shall exceed the sum of twenty pounds, the same shall .... be paid .... (a) into the bank, or (b) to two trustees to be nominated by the parties entitled to the rents or profits of the lands in respect whereof the same shall be payable, such nomination to be signified by writing under the hands of the party so entitled; and in case of the coverture, infancy, lunacy, or other incapacity of the parties entitled to such moneys, such nomination may lawfully be made by their respective husbands, guardians, committees, or trustees ; but such last-mentioned application of the moneys shall not be made unless the promoters of the undertaMng approve thereof and of the trustees named for the purpose : (L. C. C. A., 1845, s. 71.) The order for payment may be made to two trustees or either of them : (Morg. & Ch. 40. 2. Application. [If the money is paid into the bank it shall] be applied in the manner .1 . . . mentioned with respect to sums amounting to 2002. . (L. C. C. A. 1845, s. 71 ; see sitp. HI.) The money so paid to such trustees and the produce arising therefrom, shall be by such trustees applied in the manner .... directed with I'espect to money paid into the bank, but it shall not be necessary to obtain any order of the Court for that purpose : (L. C. C. A. 1846, s. 71.) V. PAYMENT AND APPLICATION OF SUMS NOT EXCEEDING 201. (s. 72). If such money shall not exceed the sum of twenty pounds, the same shall be paid to the parties entitled to the rents and profits of the lands in respect whereof the same shall be payable, for their own use and benefit, or in case of the coverture, infancy, idiotcy, lunacy, or other incapacity of any such parties, then such money shall be paid for their use to the Lands Glauses Act. 505 respective husbands, guardians, committees, or trustees of such pei-sons •; (L. 0. C. A., 1846, s. 72.) The court has ordei-ed a balance remaining over after investment, and not exceeding 20?., to be paid to the tenant for life. So also a balance of 30t., on an undertaking by the tenant for life to expend it in lasting im- provements : (Morg. & Oh. 41.) A guardian, for the purpose of selling, or conveying, or nominating a trustee to receive the money, may be appointed on summons at chambers : (Dan. 1870.) VI. COMPENSATION TO PERSONS NOT ABSOLUTELY ENTITLED (s. 73). All sums of money exceeding twenty pounds which may be payable by the promoters of the undertaking in respect of the taking, using, or inter- fering with any lands, under a contract or agreement with any person who shall not be entitled to dispose of such lands or of the interest therein contracted to be sold by him absolutely for his own benefit, shall be paid into the bank or to trustees in manner aforesaid [see sup. III., IV.], and it shall not be lawful for any contracting party not entitled as aforesaid to retain to his own use any portion of the sums, so agreed or contracted to be paid for or in respect of the taking, using, or interfering with any such lands, or in lieu of bridges, tunnels, or other accommodation works, or for assenting to or not opposing the passing of the bill authorising the taking of such lands, but all such moneys shall be deemed to have been contracted to be paid for and on account of the several parties interested in such lands, as well in possession as in remainder, reversion, or expectancy : (L. 0. 0. A. 1845, s. 73.) The tenant for life is perfectly competent- to contract whatever may be the grounds of his demands. The section applies as between him and the reversioner or remainderman. The money when paid to him becomes affected by a trust, he being the trustee and the other his cestui que trust : [Taylor v. Chichester and Midhurst Railway Company, L. Rep. 4 E. & L App. 628.) The directors may pay the money into court, and such payment is a fulfilment of their contract with the tenant for life : [Id.) Where a tenant for life received a sum of money in consideration of his not opposing the application for the Act, he was declared a trustee of the same for the benefit of himself and the remaindermen, and ordered to pay it into court : (Dan. 1870.) Provided always that it shall be in the discretion of the court .... or the said trustees, as the case maybe, to allot to any tenant for life or for any other partial or qualified estate, for his own use, a portion of the sum so paid into the bank or to such trustees as aforesaid, as compensation for any injury, inconvenience, or annoyance which he may be considered to sustain, independently of the actual value of the lands to be taken, and of the damage occasioned to the lands held therewith, by reason of the taking of such lands and the making of the works : (L. C. C. A. 1846, s. 73.) The court has full power to allot to the tenant for life, or other person having a partial or qualified estate, a portion of the sum so paid in, as compensation for any damage or annoyance he may sustain : {Taylor v. Chichester and Midhurst Railway Company, sup.) The tenant for life will be allowed costs, charges, and expenses properly incurred in dealing with the company subsequently to the passmg of iheir Act, but mot expenses incurred in opposing the Bill in Parliament : (Re Earl of Berkeley's Will, L. Rep. 10 Ch. App. 560 As to the costs of a trustee opposing the Bill, see Re NvcoU s Jistates, 506 Lands Glauses Act. •W. N. 1878, p. 154 ; see also Dsm. 1870 ; Rees v. Metropolitan Board of Works, L. Rep. 14 Ch. Div. 372 ; 42 L. T. Rep. N. S. 685 ; 49 L. J. 620, Ch. ; 28 W. R. 614. VII. APPLICATION OP MONEYS ARISING FROM PARTIAL INTERESTS (s. 74). Where any purchase money or compensation paid into the bank under the provisions of [the Lands Clauses Act] or the special Act shall have been paid in respect of any lease for a life or lives or years, oi for a life or lives and years, or any estate in lands less than the whole fee simple thereof, or of any reversion dependent on any such lease or estate, it shall be lawful for the court .... on the petition of any party interested in such money, to order that the same shall be laid out, invested, accumu- lated, and paid in such manner as the said court may consider wiU give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may be : (L. 0. C. A., 1845, s. 74.) An agreement for a lease is included in the word " lease " [see sup. I.] A remainderman is a " party interested " : (Dan. 1871.) Where the land was held in trust for the maintenance and repair of a church which had been taken, and was subject to a lease for years, dependent on a Hfe, the court ordered the whole of the dividends to be paid to the trustees : (Dan. 1871.) Where leaseholds were charged with an annuity, which the purchase money was insufficient to discharge, it was ordered to be kept down by the sale from time to time of a competent part of the fund : (Dan. 1871.) In another case a Government annuity was ordered to be purchased : (jBe Pfleger, L. Rep. 6 Eq. 250.) The tenant for life of leaseholds specifically bequeathed was held entitled to the amount of his former income, to be made good from the corpus : (Dan. 1871.) In another case the court directed that the fund, or so much as from time to time remained, and any interest thereon, should in each year be divided by the number of years which would have remained unexpired of the lease, and the quotient paid yearly to the tenant for life : (Dan. 1871 ; and see Penny v. Penny, L. Rep. 5 Eq. 227.) Where settled renewable leaseholds had been taken, a similar order was made, although the settlement contained a direction to renew: (Dan. 1871.) Where there is a trust for renewal, and renewal has become impossible, the tenant for life is only allowed the income of the purchase money : {Be Wood's Estate, L. Rep. 10 Eq. 572 ; Hollier v. Burne, L. Rep. 16 Eq. 163 ; Maddy v. Hale, L. Rep. 3 Ch. Div. 327 ; 35 L. T. Rep. N. S. 134 ; 24 W. R. 1005.) Where leaseholds have been let at a rent below the present ra«k rental, the tenant for life generally gets only an income equal to the rent reserved, the remainder being accumulated, but at the end of the term he will be entitled to the income : (See Be Mette's Estate, L. Rep. 7 Eq. 72, and cases there cited.) Where, imder a joint contract with the lessor and lessee, one sum was paid for the interest of both, the court declined to apportion the fund between them : (Dan. 1872.) The value of a lessor's interest may be ascertained in chambers: (Brandon v. Brandon, 2 Dr. & Sm. 305.) Where a lease for lives was not renewed according to a direction in the wiU, the tenant for life was, on the death of the la^t cestui que vie, held Lands Clauses Act. 507 entitled to the whole sum ; but without prejudice to the rights of the remainderman, in consequence of the non-renewal : (Dan. 1872.) Where a tenant for life of leaseholds was entitled to the fund which had been invested in consols, the court held that the matter should be referred to an actuary to ascertain what yearly payment would exhaust the fund in the number of years which the leaseholds had to run, and that the tenant for life was entitled to have this yearly sum paid to him duriug the remainder of the term, if he should live so long : {Ashew v. Woodhead, 42 L. T. Rep. N. S. S67 ; L. Rep. 14 Oh. Div. 27.) Vm. REFUSAL OR FAILURE TO CONVEY, &c. (s. 77). 1. DBPOdIT OF PUECHASE MoNET BY PeOMOTEBS. If the owner of any such lands purchased or taken by the promoters of the imdertaking, or of any interest therein, on tender of the purchase money or compensation either agreed or awarded to be paid in respect thereof, refuse to accept the same, or neglect or fail to make out a title to such lauds, or to the interest therein claimed by him, to the satisfaction of the promoters of the undertaking, or if he refuse to convey or release such lands as directed by the promoters of the undertaking, or if any such owner be absent from the kingdom, or cannot after diligent inquiry bft found, or fail to appear on the inquiry befoi-e a jury .... it shall be law- ful for the promoters of the undertaking to deposit the purchase money or compensation payable in respect of such lands, or any interest therein, in the bank, in the name and with the pri'i'ity of the [Paymaster] General .... to be placed, except in the cases [by the Act] otherwise provided for, to his account there, to the credit of the parties interested in such' lands (describing them, so far as the promoters of the undertaking can do), subject to the control and disposition of the said court. : (L. 0. 0. A., 1845, s. 76.) A person in possession, but showing a bad title, is not an owner within this section : (See Douglas v. London and North-Western Railway Com- pany, 3 K. & J. 173, and other cases cited Morg. & Oh. 45; see also F", parte Winder, cited post.) 2. Receipt to be Given. Upon any such deposit of money as last aforesaid being made, the cashier of the bank shall give to the promoters of the undertaking, or to the party paying in such money by their direction, a receipt for such money, specifying therein for what and for whose use (described as afore- said) the same shall have been received, and in respect of what purchase the same shall have been paid in : (L. C. 0. A., 1845, s. 77.) 3. Deed Poll to Pass Estate. It shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, under their common seal, if they be a corpora- tion, or if they be not a corporation under the hands and seals of the said promoters or any two of them, containing a description of the lands in respect whereof such deposit shall have been made, and declaring the circumstances under which and the names of the parties to whose credit- such deposit shall have been made, and such deed poU shall be stamped with the stamp duty which wovild have been payable upon a conveyance to the' promoters of the undertaking of the lands described therein ; and there- upon all the estate and interest in such lands of the parties for whose use and in respect whereof such purchase money or compensation shall have been deposited shall vest absolutely in the promoters of the undertaking, and as against such parties they shall be entitled to immediate posspssion. of such knds : (L. 0. 0. A., 1845, s. 77.) 508 Lands Glauses Act. 4. Application of Moneys. Upon the application by petition of any party making claim to the money so deposited as last aforesaid; or any part thereof, or to the lands iu respect whereof the same shall have been deposited, or any part of such lands, or any interest in the same, the court .... may, in a summary way, as to such court shall seem fit, order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment of -the dividends thereof according to the respective estates, titles, or ' interests of the parties making claim to such money or lands, or any part thereof, and may make such other order in the premises as to [the] court shaU seem fit : (L. 0. C. A., 1845, s. V8.) An incumbrancer may apply for payment, but can only claim six years arrears of interest : {Be Stead, L. Hep. 2 Oh. Div. 713 ; 45 L. J. 634, Ch. ; 24 W. R. 698.) The petition must be supported by the usual affidavit of title: [see sup. III.] Where the money has been paid in, the court is bound to decide the •question of right, and if it turns out that the claimant has not the interest he claimed, but some other interest, the court wiU ascertain the value of the interest ; and after paying the amount of such value to the claimant, order the residue of the money paid in to be repaid to the company : (Dan. Where a company agreed to purchase the fee simple of land of which W. was the time owner, from H., who was in possession, and afterwai-ds, finding that H. had only a possessory title of nineteen years and a haH, paid "the money into court to the account of " the party interested" therein, took possession, and executed a deed poll reciting their desire that the land should vest in them for all the estate of H., and purporting to vest in themselves -the fee simple of the lands, and no claim was made on behalf of W. either to the laud or the purchase money until after the expiration of twenty years from the time when H. had taken possession, on petition by persons claiming under H. for payment out ; it was held that they were so entitled as against the representative of W. : {Ex parte Winder, L. Rep. 6 Ch. Div. 696 ; 46 L. J. Oh. 672 ; 25 W. R. 768.) IX. POSSESSORS DEEMED TO BE OWNERS (s. 79). If any question arise respecting the title to the lands in respect whereof such moneys shall have been so paid or deposited as aforesaid, the parties respectively in possession of such lands, as being the owners thereof, or in receipt of the rents of such lands, as being entitled thereto at the time of such lands being purchased or taken, shall be deemed to have been lawfully entitled to such lands until the contrary be shown to the satisfac- tion of the court; and unless the contraiy be shown as aforesaid, the parties so in possession, and all parties claiming under them, or consistently with their possession, shall be deemed entitled to the money so deposited, and to the dividends or interest of the annuities or securities purchased therewith, and the same shall be paid and applied accordingly : (L. 0. 0. A. 1845, s. 79.) Where questions arise as to title, the petition need only be served on the •company : {Be Sterry, 3 W. R. 561.) It is the duty of the company to state any difficulties of title which may •exist: (Dan. 1874.) The court wiU not, on application for payment of the purchase money, •deal with the property in any way which can affect the title, unless it is clearly shown that there must be litigation on the question of title : ( Be St. Pancras Burial Ground, L. Rep. 3 Eq. 173.) Lands Clauses Act. 50& On petition by the ostensible owner for payment out to him of the purchase money, it was held that he was entitled, to have the purchase- money paid out to him at once, as being the owner in possession, and nothing being shown to the contrary to the satisfaction of the court : (J7ar parte Chamberlain, 42 L. T. Bep. N. S. 358 ; L. Rep. 14 Oh. Div. 323 ; 49 L. J. 354, Oh. ; 28 W. R. 665; and see Ex parte Winder, sup., VIII.) X. ENTRY UPON LANDS BEFORE PURCHASE (ss. 86-87). 1. Deposit to be Made and Bond Giten. If the promoters of the undertaking shall be desirous of entering upon and nsing any .... lands before an agfreement shall have been come to or an award made, or verdict given for the purchase money or compensa- tion to be paid by them in respect of such lands [they may do so upon depositing in the bank, by way of security, the amount claimed or the value of the lands, and upon giving a bond to the non-consenting parties interested] in a penal sum eqn^ to the sum so ... . deposited conditioned for payment to such party, or for deposit in the bank for the benefit of the parties interested in such lands, as the case may require, under the provisions [of the Act] of all such purchase money or compensation as may in manner [thereinbefore] provided be determined to be payable by the promoters of the undertaking in respect of the lands so entered upon, together with interest thereon, at the rate of 51. per cent, per annum from the time of entering on such lands, until such purchase money or compen- sation shall be paid to any such party or deposited in the bank for the benefit of the parties interested in such land under the provisions of the Act : (L. 0. 0. A., 1846, s. 86.) The entry does not deprive the vendor of his lien on the land ; but he has no lien on the deposit for his costs of negotiation or conveyance : (Dan. 1885 ; Morg. & Ch. 49, 69.) 2. To WHAT ACOOTTNT DEPOSIT PaiD. The money .... to be deposited .... shall be paid into the bank in the name and with the privity of the [Paymaster] General of the court .... to be placed to his account there to the credit of the parties interested in or entitled to sell and convey the lands so to be entered and who shall not have consented to such entry, subject to the control and disposition of the said court : (L. 0. 0. A., 1845, s. 86.) 3. Receipt to be Given. Upon such deposit being made the cashier of the bank shall give to tht> promoters of the undertaiing, or to the party paying in such money by their direction, a receipt for such money, specifying therein for what purpose, and to whose credit, the same shall have been paid in: (L. 0. 0. A., 1845, s. 86.) 4. Investment op Deposit. The money .... deposited .... shall remain in the bank by way of security to the parties whose lands shall so have been entered upon, for the performance of the condition of the bond to be given by the promoters of the undertaking .... and the same may, on the application by petition of the promoters of the undertaking, be ordered to be invested in bank annuities or Government securities, and accumulated: (L. C. C. A., 1845, s. 87.) Interest at 51. per cent, per annum, according to the bond, will be payable by the company from the date of entry, although the deposit may not have been invested : (Dan. 1885.) 5. Application op Deposit. And upon the condition of [the] bond [see sup.l being fully performed 510 Lands Glauses Act. it shall be lawful for the court .... [ou application by petition of the promoters of the undertaking] to order the money so deposited in the funds in which the same shall have been invested, together with the accumulation thereof to be repaid or transferred to the promoters .... or if siioh conditions shall not be fuUy performed, it shall be lawful for the .... court to order the same to be applied in such manner as it shaJl -think fit for the benefit of the parties, for whose security the same shall so have been deposited: (L. 0. 0. A., 1845, s. 87.) It is sufficient if the petition is stamped with the seal of the company, which need not be verified : (Morg. & Oh. 61.) A petition for investnJent need not be served on the landowner ; but if it is for repayment of the deposit it should be so served : (Morg. & Oh. 60 ; Dan., 1885.) And he is entitled to his costs of appearing : {Id.) If the bond has been fully performed, or the landowner consents to the application, he should be made a co-petitioner : {Be Solman's Settlement, "Cn. 1877, p. 272.) If he refuse he should be made a respondent : {Id.) If he appear he wiU not be entitled to costs {Id.) ; at any rate beyond ihe 42s. tendered under Add. Rules, Aug., 1875 ; Sp. All., r. 17 : (see Costs, suja., 230.) Payment may be ordered to be made to the secretary of the company : (Morg. & Oh. 61.) The deposit may be paid out without the costs payable by the company io the vendor being deducted, although such costs remain unpaid. The deposit may also be paid, although the landowner has taken proceedings to set aside the award (Dan. 1885.) ; although the company has not paid or deposited the compensation awarded in respect of minerals : {Ex parte Neath and Brecon Railway Company, L. Rep. 2 Oh. Div. 201 ; 45 L. J. 196, Oh. ; 24 W. R. 357.) Where a railway company, prior to entering upon lands, has made a deposit in the bank and given a bond, the court has jurisdiction, in the event of the non-performance of the condition of the bond, to order payment out of the deposit to the landowner on a petition presented by him for that purpose adversely to the company "• {Re Mutlow's Estate, L. Rep. 10 Oh. Div. 131 ; 27 W. R. 245.) As to the rights of the landowner's mortgagees, see Martin v. London, Ghatham, &c., Railway Company, L. Rep. 1 Oh. App. 501. XI. DEPOSIT "WHEN PAYMASTER-GENERAL'S OPPIOE IS OLOSED. If at any time the company be unable, by reason of the closing of the office of the [Paymaster] General of the court .... to obtain his authority in respect of the payment of any sum of money so authorised to be deposited in the bank by way of security .... it shall be lawful for the company to pay into the bank to the credit of such party or matter, as the case may require .... such sum of money as the promoters of the undertaking shall, by some writing signed by their tieeretary or solicitors for the time being, addressed to the governor and company of the bank in that behalf, request .... and in every such case, within ten days after the reopening of the said [Paymaster] Greneral's office, the solicitor for the pi-omoters of the undertaking shall there bespeak the direction for the payment of such sum into the name of the [Paymaster] General, and upon the production of such direction at the Bank of England the money so previously paid in shall be placed Land.1 Glauses Act. 511 to the credit of the said [Paymaster] General accordingly, and the receipt for the said payment be given : (L. 0. 0. A., 1845, s. 88.) XII. COSTS. 1. General Rules. See 0. LV., cited Costs in., 1. _ The effect of the order and of the Judicature Acts is, with the excep- tions mentioned in the order, to repeal former enactments as to costs : (Qarnett v. Bradley, L. Rep. 3 App. Cas. 944; 39 L. T. Rep. N. S. 261 ; 48 L. J. 186, Ex.; 26 W. R.-698; Hx parte Mercers' Company, L. Rep. 10 Ch. Div. 481.) But the old law may be looted at as a guide, and ought to be followed wherever practicable : (per Bramwell, L.J., Myers v; Befries, L. Rep. 5 Ex. Div. 180; 42 L. T. Rep. N. S. 137; 49 L. J. 266, Ex. ; 28 W. R. 406.) In doubtful cases regarding»costs the court will decide in favour of the landowner : (Dan. 1875.) Costs may be refused to a petitioner. Where the money is not standing to the credit of the matter of the Act, the petitioners may be ordered to pay the company's costs : (Dan. 1876 ; Nock V. Nock, W. N. 1879, p. 125.) Where money has been paid in to another account than the Act, by consent, and where the purchase money, though paid in under the Act, has been carried to another account, the company ought not to be served with a petition, and an order as to costs cannot be made against them : [Nock V. Nock, sup. ; Fisher v. Fisher, L. Rep. 17 Eq. 840.) 2. Enactments op L. C. C. Act, and Decisions on Paeticulak Matters. General Enactment. In all cases of moneys deposited in the bank under the provisions of [the Lands Clauses Act] or the special Act, or an Act incorporated there- with, except where such moneys shall have been so deposited by reason of the wilful refusal of any party entitled thereto to receive the same, or to convey or release the kiids in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required [see swp. VIII.] it shaU be lawful for the court .... to order the costs of the following matters, including therein all reasonable charges and expenses incident thereto, to be paid by the promoters of the undertaking ; (that is to say,) (1) The costs of the purchase or taking of the lands, or which shall have been incurred in consequence thereof, other than such costs as [therein] otherwise provided for ; (2) The costs of the investments of such moneys in Government or real securities, and of the reinvestments thereof in the purchase of other lands ; (3) The costs of obtaining the proper orders for the payment of the dividends and interest of the securities upon which such moneys shall be invested ; {4) The costs for the payment out of court of the principal of such moneys or of the securities whereon the same shall be invested ; {5) The costs of all proceedings relating thereto except such as are occasioned by litigation between adverse claimants : (L. C. C. A., 1845, s. 80.) Several Commanies. The costs on payment out, where the money has been deposited by 512 Lands Glauses Act. several companies, mil be borne by the companies equally, as wiU costs of re-investment, except stamps on the conveyance, and a surveyor's fee will be contributed rateably, according to the shares of purchase money ; but the costs may be ordered to be paid rateably according to the amounts paid in, where it would otherwise be unjust or oppressive : (Morg. & Ch. 50 ; Dan. 1878.) When portions of the estate are taken by different companies, some of which afterwards amalgamate, the costs must be borne in equal shares by the existing companies : {Ex parte Corpus Christi College, L. Rep. 13 Eq. 334; Ex parte Gaskell, L. Rep. 2 Oh. Div. 360; 45 L. J. 368, Ch.; 24 W. R. 752 ; but see Ex parte Bishop of London, 32 Beav. 397.) When after an order to pay costs the company becomes insolvent, leaving part of the costs unpaid, part of the fund in court may be sold to ]jay the balance : {Re Great Yeldham Glebe Lands, L. Rep. 9 Eq. 68.) Refusal to Convey. A reasonable objection to convey, although ultimately overruled, is not .regarded as a "wilful Tefusal." Nov is the inability of a landowner to pay ofE incumbrances of greater value than the land taken. But if a vendor insists upon payment of his costs, as well as of the purchase money, bef oi'e giving up possession, it is a wilful refusal : (Dan. 1876 ; Morg. & Ch. 49, 50.) Purchase and Taking — Compulsory. The 80th section relates to compulsory purchases, and to matters under any section of the Act, s. 82 [see post\, relating to purchases by agree- ment : {Re Liverpool Improvement Act, L. Rep. 5 Eq. 282 ; Morg. & Ch. 57 ; Ex parte Flowter, L. Rep. 1 Ch. App. 599.) The costs mentioned in the 80th section include those of ascertaining value {Ex parte Flower, sup.); of a power of attorney from persons abroad ; and costs of conveyance generally : (Morg. & Ch. 60.) Costs of Conveyances — Voluntary. The costs of all ... . conveyances [of lands purchased] shall be borne by the promoters of the undertaking, and such costs shall include all charges and expenses incurred, on the part as well of the seller as of the purchaser, of all conveyances and assurances of any .... lands, and of any outstanding terms or interest therein, and of deducing, evidencing, and verifying the title to such lands, terms, or interests, and of making out and furnishing such abstracts and attested copies as the jiromoters of the undertaking may require, and all other reasonable expenses incident to the investigation, deduction, and verification of such title : (L. C. C. A. 1845, s. 82.) Taxation of Conveyancing Costs. If the promoters of the undertaking and the party entitled to any such costs shall not agree as to the amount thereof, such costs shall be taxed by one of the taxing masters of the court .... upon an order of the same court, to be obtained upon petition in a summary way by either of the parties ; and the promoters of the undertaking shall pay what the said master shall certify to be due in respect of such costs to the party entitled thereto, or in default thereof, the same may be recovered in the same way as any other costs payable under an order of the said court, or the same may be recovered by distress in the manner .... pro- vided in other cases of costs ; and the expense of taxing such costs shall be borne by the promoters of the undertaking, unless upon such taxation one-sixth part of the amount of such costs shall be disallowed, in which case the costs of such taxation shall be borne by the party whose costs Lands Glauses Act. 513 shall be so taxed, and the amount thereof shall be ascertained by the said master and deducted by him accordingly in his certificate of such taxation : (L. 0. 0. A. 1845, s. 83.) The promoters must bear the expense of getting in any outstanding legal estates (Dan. 1883) ; of taking out administration on death of lease- holder {Id.) ; of proceedings necessary for the completion of the contract through vendor's dying before completion (Dan, 1883) ; or through the heir-at-law of a transferee of a deceased mortgagee not being found: (Dan. 1883.) The vendor is entitled to his costs of a conveyance which has been prepared but not made use of, if he has not been guilty of wiMul neglect or refusal to convey (Dan. 1884), and to costs of apportioning ground rent payable to vendor in respect of several houses including the one taken: {Id.) Upon a petition praying for the approval of the investment of a sum in court, whereby the contract costs usually borne by the vendor were thrown upon the purchasers, the taxing master was directed to distinguish such of the costs as were properly vendors' costs, and such costs were directed to be borne by the petitioners : {Be Temple Chv/rch Lands, 47 L. J. 160, Ch. ; 26 W. R. 259.) , Interim Investment. The costs include broker's commission : (Morg. & Oh. 50.) But the practice is for the whole purchase money paid in to be laid out in stock, without deducting brokerage, or to sell stock without charging brokerage, the petitioner by his counsel undertaking to pay it ; and the petitioner charges the company for the brokerage in his costs without any special direction respecting it : (Seton, 1419.) The costs of several interim investments in stock must be paid by the company : (Dan. 1880 ; Morg. & Ch. 50.) The rule is sometimes different where there is an investment on mortgage : {Be Wilkinsbn, 16 "W. B. 637 ; Be Flemon, L. Rep. 10 Eq. 612, cited Morg. & Ch. 50.) The court does not impose any condition as to the permanency of the investment : {Be Blyth, L. Rep. 16 Eq. 468 ; Be Sewart, L. Rep. 18 Eq. 278.) The costs do not include those of remaindermen, except in case of an extraordinary investment {Be BowUng, 24 "W. R. 729 ; 45 L. J. 568, Ch.) ; or of incumbrancers prior to the life interest : {Be Morris, L. Rep. 20 Eq. 470.) Payment of Divide/nds. Costs of and incident to the payment of dividends must be borne by the company : (Morg. & Ch. 51.) I They include costs of yearly sales of stock where necessary to make up t tenant for life's income {Be Long's Estate, 20 L. T. Rep. O. S. 305 ; I W. R. 226 ; Be London, Chatham, and Dover Bailway Company, 14 ^. T. Rep. N. S. 243 ; 14 W. R. 507) ; of a petition for payment to a person in remainder after the tenant for life, caused by the death of the ktter {Ex parte Jolliffe, L. Rep. 9 Eq. 668) ; of a second petition for payment to trustees, where necessary, as through reconstitution of a charity {Be Shakespeare Walh School, L. Rep. 12 Oh. Div. 178) ; but costs have not always been allowed where new trustees have been appointed under a power in the settlement or by the court : (compare Be Pryor, W. N. 1876, p. 141 ; and Be Metropolitan Company and Maire, W. N. Mortgagees of the inheritance ought to be served with the petition : {Be Morns, L. Rep. 20 Eq. 470.) L L 514 Lands Olauses Act. Be-mveatmente — OeneralVy. 'Where the money is invested in any of the modes mentioned in the 69th section [see sup. III., 5 (a),] other than land, the Act does not provide that the company is to pay any costs other than those of the petition : (Morg. & Oh. 51.) Lamd Tax. Costs of redemption of land tax will he ordered to be paid {Be Bethlem Hospital, L. Rep. 19 Bq. 457 ; Dan. 1877) ; even where there is a second application: {Be London, Brighton, amd South Coast BaiVway Corrvpany, 18 Beav. 608.) Other Incumbrances. In the majority of cases these costs have not been ordered to be paid by the company : (see cases Morg. & Ch. 61 ; and Be MarVs Trusts, W. N. 1877, p. 63.) Be-imvestmetit in Land. The costs of re-investment in land include those of enrolling a purchase deed (Morg. & Ch. 51) ; reference to conveyancing counsel of the court {Id.) ; petition for a vesting order under Trustee Act {Be Lowry, L. Rep. 15 Eq. 78) ; litigation through the new property being the subject of a suit : {GarpmaeliV. Profit, 2S L. J. 165, Ch.) But the costs do not include those of a vendor's appearance on the petition {Be Dyler, 1 Jur. N. S. 975) ; of another counsel {Be Jones' Settled Estates, 31 L. T. Rep. O. S. 291 ; 6 W. R. 762) ; of a fine on purchase of copyhold {Ex pa/He Bector of Sawston, 31 L. T. Rep. 0. S. 129 ; 6 W. R. 492) ; of a certificate of completion of buildings : {Ex parte Bector of Shipton-wnder-Wychwood, 19 W. R. 549.) The costs which the company may be liable to pay wiQ not be increased where a larger sum is invested than has been deposited in court : (Morg. & Ch. 55 ; Dan. 1878 ; Be Power's Settlement, W. N. 1876, p. 205.) The costs are payable, though re-investment is asked for by a person absolutely entitled (Morg. & Ch. 51) ; and where such a person has died, of re-investment in land to be settled to the uses of his will : {Id.) As to the costs payable when the purchaser is, under the contract, to bear costs of purchase, see Ex parte Governors of Christ's Hospital (L. Rep. 20 Eq. 606). Successive Be-investments m Land. The costs of one application only for re-investment in land shall be | allowed, unless it shall appear to the court .... that it is for the benefit of the parties interested in the said moneys that the same should] be invested in the purchase of lands in different sums and at difEerentl times, in which case it shall be lawful for the court, if it think fit, to ordeiJ the! costs of amr such investments to be paid byi the promoters of thi/ undertaking : (L. C. C. A., 1846, s. 80.) // The costs of several and successive investments (sometimes as many ^s three) must be paid by the company, where not unreasonable or vexatious : (Morg. & Ch. 52 ; lie Paddon's Trusts, "W. N. 1878, p. 65.) Leave may be given to apply in chambers as to investments of the balance : {Be Bunraven's Estates, 10 W. R. 56 ; Be Lapworth's Charity, W. N. 1879, p. 37.) Abortive Purchases. The costs of hondjide negotiations for a purchase, when the court has approved, which cannot be completed, are payable by the company, but not when the court has not authorised the purchase: (Morg. & Ch. 52; Dan. 1880.) Lands Glau>se» Act. 5J 5 Improvefmenta. Remaindermen should be served : {Be Leigh, L. Rep. 9 Oh. App. 684.) Payment out. Transfer to the credit of another account is payment out : (Be Bristol School, 47 L. J. 317, Oh.) The costs of payment out are payable by the company; and include the costs of two or more petitions presented by the several parties int«rested, though when they appear by the same solicitor only one set of costs is aUowed between them : (Morg. & Ch. 52.) The costs of two petitions for payment out will not be allowed against the company where presented by the same petitioner claiming under different instruments : (Morg. & Oh. 52 ; and see Be Patterson's Devised Estates, L. Rep. 4 Ch. Div. 207.) The additional costs incurred in consequence of the land taken being subject to an administration suit, or belonging to a lunatic, are payable by the company : (Morg. & Oh. 53 ; Dan. 1876, 1880.) Where a disentailing deed is required, the company must pay the costs : (Morg. & Ch. 55 ; Dan. 1878.) Where the settlement of the land directed advances to children, costs of payment out of a siim for that purpose were allowed against the company : {Be Cv/rwen's Settlement, W. N". 1880, p. 83.) As to what costs the company is liable to pay in respect of appearances on a petition to transfer to the credit of a cause, and other appearances, see cases cited Morg. & Oh. 53 ; and Be Adams, W. N. 1871, p. 159. On a petition for payment out either to or with the consent of incumbrancers, the only costs which the company or local authority (as the case may be) can be required to pay, in addition to the petitioner's costs, are the sum of 42g. for the incumbrancers' costs, and a further sum sufficient to cover the costs of an affidavit of service of the petition upon the incumbrancers : {Be Halstead United Charities, L. Rep. 20 Eq. 48 ; Be Artisans' and Labourers' Dwellings Invprovement Act, 1875, Has parte Jones, L. Rep. 14 Ch. Div. 624; 43 L. T. Rep. IST. S. 84; and see further as to incumbrancers, Morg. & Ch. 53 ; Dan. 1879.) Remaindermen should not, generally, be served : {Be Marner, L. Rep. 3 Eq. 432.) Service and Appea/rance. The costs of appearance of all parties to the suit are payable by the company : (Morg. & Oh. 53 ; Dan. 1879.) Parties may appear separately, and have their costs from the company, unless they do so vexatiously, and thereby increase the costs: (Morg. &Ch. 53; Dan. 1880.) The company must pay the costs of trustees who have been properly served and appear, except on an application for interim investment, unless they represent the immediate freehold: (Morg. & Oh. 53, 54; Dan. 1879.) In the case of petitions under sect. 74 [see s'up., VII.] remaindermen should be served^ and their costs of a^jearance must be paid by the company : {Be Crane's Ustate, L. Rep. 7 Eq. 322.) The costs of appearance are allowed, of the ordinary {Ex pa/rte Vicar of Creech St. Michael, 21 L. J. 677, Oh.) ; of the Attorney-General on a petition tinder Romilly's Act {Be London, Brighton, and South Coast Baihoay Cortvpawy, 18 Beav. 608) ; of city freemen when corporation lands taken : (Exparte Limcoln Corporation, 6 Rway. Oas. 738.) In the case of Ecclesiastical Commissioners, their consent in writing is L L 2 516 Lwnds Clauses Act. Bufficient, and the costs of their appearance will not be allowed: (Morg. & Oh. 54) The costs of appearance of the Governors of Qneeu Anne's Bounty are not allowed : (Dan. 1880.) The vendor of the lands proposed to be bought shoidd not be served with the petition, and, if served, the company will not be liable to paj his costs: (Dan. 1880.) The hnsband of a married woman petitioner should be made a co-petitioner where he has no adverse interest. His costs of appearance as respondent are not allowed : {Be Osborn^s Estate, W. N. 1878, p. 179.) When the purchase money was for the convenience of the parties laid out in the purchase of lands in a special manner, under a private Act, the company was held not liable to pay the costs of trustees and remainder- men served according to the provisions of that Act : (Dan. 1880, citing Be Bowes, 10 Jur. N. S. 817.) Although the money has been dealt with by two different branches of the' court, and been paid in by different companies, the costs of two petitions will not be allowed against the company : (Morg. & Ch. 60.) But where the titles under the two petitions were dmerent the company were ordered to pay the petitioner's costs of the first petition, and five guineas towards the costs of the second petition, and three guineas towards the costs of the trustees in each petition, any surplus costs of the re^ective trustees to be paid out of the respective funds : (JSe Pattison's Devised Estates, L. Rep. 4 Ch. Div. 207.) Litigation. The words of section 80, " except such as are occasioned," &c., refer to costs, not proceedings : (Morg. & Oh. 55.) The order is as follows .: " Except such costs, if any, as are occasioned by litigation between adverse claimants :" (Seton, 1441.) The company is not liable to bear the costs occasioned by actual litigation, or where, from adverse claims to the fund in court, there has been a Utis contestatio, and the costs have been increased by the necessity of serving the persons so claiming, or of presenting a secondj petition ; but if the rights of the parties have to be ascertained, as in the case of the construction of a doubtful devise, or in a pending administration suit, and no extra expense has been incurred in the contention, the costs of all parties are payable by the company : (Seton, 1447; and see Morg. & Oh. 65 ; Dan. 1881-2.) According to Jessel, M.B.., in the Court of Appeal, adverse litigation arises where different parties set up adverse titles to the estate ; and, where the title is not in dispute, costs arising in the course of administering the purchase money ought to be paid by the company. In the same case Bacon, Y.O. had held that where there was an appucation by a tenant for life of leaseholds for payment of income iu a certain way, which was opposed by the remaindermen, there was adverse litigation ; but the Court of Appeal were unable, in the absence of the company, to interfere with their part of the order : [Askew v. Woodhead, 41 L. T. Rep. N. S. 670 ; L. Rep. 14 Ch. Div. 27 ; 42 L. T. Rep. N. S. 567.) Xin. TAXATION" OF CONTETAJSTCING COSTS. [See «itp. XII., 2.] Land Tax Bedemption Act. 517 LAND TAX REDEMPTION ACT. 1. REDEMPTION' OF TAX. 1. CuTTiNa Timber. 2. Sale op Pabt of Inoumbebed Estate. 3. Applying Surplus Stock. 4. SusPBNDiNa Sale or Mortgage. 5. Appeals frou Coumissionerb. n. DrPPIGULTIBS ON SETTLING EEVEESIONS. m. ENEEANCHISEMENT. I. REDEMPTION OF TAX. 1. Cutting Timber. For the purpose of raising money to redeem the land tax charged on any manors, messuages, lands, tenements, or hereditaments, subject to any restriction in the power of the person or persons entitled beneficially to the rents and profits thereof, to cut down timber standing thereon, it snail be lawful for such person or persons, with the approbation of the [Ohan- cery Division] to cut down such quantity of timber as the [court] shall, TH)on application made by petition in a summary way, direct, and to apply the produce thereof, and the surplus of such produce (if any) under the direction of such [court], in the same manner as [thereinafter] directed with respect to moneys produced by sale of estates for the redemption of land tax : (42 Greo. 3, c. 116, s. 67.) When all the instalments to be transferred or paid upon the contract for the redemption [are] completed [the tax sinksj^and [becomes] merged in the manors [&c.] whereon the same was charged, for the benefit of the person or persons for the time being beneficiafly entitled thereto, unless such [court] shall make any order or direction respecting the manner in which the income to be deriTed from the redemption of any such land tax . . shall be applied, during so long time as the nmnors [&o.] on which such timber shall hare been growing shall be in the possession of any person or persons having a limited interest .... which order and direction such [court is] authorised and empowered to make, having regard to the state and condition of the timber, and to the rights of allpersons interested in such manors, &c. : (Id.) [The court may] order and direct that the costs and expenses incurred in the surveying, valuing, and felling such timber, or otherwise on account of the sale thereof, shall be paid and satisfied out of the purchase moneys for the same : {Id. ; and see 16 & 17 Vict. c. 117.) 2. Saie op Part of Inoumbebed Estate. Where any trusts, mortgages, charges, liens, or incumbrances .... equally affect or [are] a charge upon divers manors, messuages, lands, tenements, or other hereditaments, part whereof [are] proposed to be sold for the purpose of redeeming the land tax chargeaole on the manors, messuages [&c.] so equally subject and liable to such trusts, mortgages, liens, or incumbrances, the [Chancery Division may, if] satisfied that such of the said manors [&c.] as [are] not proposed to be sold for the purposes aforesaid [are] a sufficient seonrity for the object of such trusts, or for the payment of such mortgages, liens, or other incumbrances .... order and direct that such of the said manors, [&c.] as [are] sold shall be conveyed .... freed and discharged from such trusts [&c.] : {Id., s. 58.) 3. Applying Sueplus Stock. Whenever .... there shall be any surplus of stock transferred as the consideration for or purchased with the money arising by any sale, mort- 518 Land Tax Redemption Act. gage, or grant to be made by -virtue thereof, after reserving so much of such stock as shall be agreed to be transferred as the consideration for the land tax redeemed, the said surplus stock shall be placed in the books of the Bank of England iu the name and with the privity of the [Paymaster- Greueral] to the mtent that such surplus stock may at a convenient time be sold, and the money prising there^om applied, under the direction and with the approbation of the [Chancery Division] (to be signified by an order made upon a petition to be preferred in a summary way), in the discharge of any debt or debts, or parts thereof, afEecting the manors [&o.], the land tax charged whereon shall have been so redeemed, or where the same shall not be so applied, then the same shall be laid out and invested under the like direction and approbation, in the purchase of other manors [&e.], which shall be conveyed and settled to, for, and upon such and the like uses, trusts, intents, and purposes, and in the same manner, as the manors, messuages, lands, tenements, and hereditaments which shall be so sold, mortgaged, or charged as aforesaid, stood settled and limited, or such of them as, at the time of mating such conveyance and settlement, shall be existing, undetermined, and capable of taking effect, and in the mean time the dividends and annual produce of such surplus stock shall from time to time go and belong to the person or persons who would for the time being have been entitled to the rents and profits of the said manors, &c., in case such last-mentioned purchase and settlement were made : (42 Geo. 3, c. 116, s. 100.) 4. SuSPENDIlfG SAJ-E OB MOETGAGE. Persons interested in remainder, reversion, or expectancy, in any estate .... of which any part shall be proposed to be ... . sold or mort- gaged by virtue of [the] Act, or for [the guardians, committees, or trusteesT of such person or persons, who shsQl be aggrieved by such intended sale or mortgage, or conceive themselves so to be, at any time before such estate shaQ have actually been conveyed by way of sale or mortgage [may] present a petition to the [Chancery Division], which court shall have power, in a summary way, to mate such order respecting the suspension of or proceeding in such sale or mortgage, or for the sale or mortgage of any other part of the estate in question, as well as for the payment of any costs occasioned by such petition, as such court shall think fit : (42 Geo. 3, s. 97.) 5. Appeais feom Commissionebs. If any person or persons shall think himself, herself, or themselves aggrieved by any determination of the commissioners with relation to any right or benefit of preference in, or any right of redemption of any land tax to be sold by virtue of [the] Act, or with relation to the sale or mort- gage of any messuage r&o.J, or the grant of any rentcharge thereout, for any of the purposes of [the] Act, with relation to the redemption or purchase of any land tax .... and the capital stock which would be requisite to be transferred for the redemption or purchase of any land tax respectively, about which any such dispute as aforesaid may arise, would in the whole exceed 500Z. in ... . public annuities, the person or persons so thinking himself, herself, or themselves aggrieved as aforesaid, shall and may apply to the [Chancery Division] by petition to be preferred in a summary way, which [court] may thereupon grant such relief, and make such order therein as the said [court] shall deem meet : (s. 197.) II. DIFFICULTIES ON SETTLING REVERSIONS. Where the reversion of any manors [&c.] holden [imder charitable and public bctdies], or by virtue of any lease for one or more life or lives, or for Land Tax Redemption Act — Land Transfer Act, 1875. 519 years absolute or determinable on the dropping of one or more life or lives, or by copy of court roU or customary tenure for life or lives [is] purchased under the powers of [the] Act, by or with the proper moneys of the person or persons for the time being beneficially entitled to the rents and profits thereof, the .... commissioners [may] direct an application to be made to the [Chancery Division] in a summary way, for obtaining direction as to the mode of settling any such reversion, or the equity of redemption thereof, where the case shall appear to them to be attended with difficulty : (42 Geo. 3, c. 116, s. 85.) m. ENFRANCHISEMENT. Any person or persons not being respectively bodies politic or corpo- I'ate, or companies, or feofEees, or trustees for charitable or other public purposes, and not holding under any grant from the Crown, or any Act of Parliament [under which an interest is reserved to the Crown], who are or shall be seised of or beneficially entitled to any manors in England, of which any copyhold or customary estates shall be holdeu, [may] with the approbation of the [Chancery Division] to be signified by order upon a petition to be preferred in a summary way, enfranchise any such copyhold or customary estates : (42 Geo. 3, c. 116, s. 60.) LAND TRANSFER ACT, 1875. I. INTBRPEETATION. 11. ORIGINAL APPLICATIONS. 1. Sanction to Eej3ister Good Holding Title. 2. Sanction to Eeoistbb Notice or Lease. 3. Inhibitions [see post, III., 5]. 4. Setting aside Eestbictions on Tbansfee. 5. Enjoecing Obdee toe Peoduction of Deeds. 6. Enfoecing Oedee as to Costs. 7. Case foe Opinion of Court. 8. Altieing Ebgisteeed Desceiption of Land. 9. modifting and dischaeging conditions. 10. Eectifyino Eeoistee. 11. Appointing Next Feiend of Married Woman. 12. Appointing Guaedian or Infant or Lunatic. 13. Obdeeino Inspection of Eeqibtbr, &o. 14. Obdebing Appeaeancb in Action foe Specific Pbefob- MANCE. ni. APPEALS FEOM EEGISTBAR. 1. On Objections to Title. 2. Peom Obdeb on Death op Eeoisteeed Ownee 3. Pbom Oedeb as to Sole Pbopeietob ob Co-pbopeietob with Husband. 4. As to Cautions. 5. Pbom Inhibitions. 6. Pbom Obdeb as to Peoduction op Deeds. 7. Prom Oeder as to Costs. 8. Prom Entbt, Omission to Enteb, c&c. [see ewp., II., 10]. IV. APPEALS PEOM COUET. 1. When Oedeb Made. 2. Where Opinion Given [see swp., II., 7]. V. MODE OP APPLYING OE APPEALING. k 1. To what Court. 2. Time fob Appealing. 520 Land Trcmsfer Act, 1875. 3. SUUMONS. 4. Sbeticb. 5. Stateucbnt. 6. Notice of AtptcaTi. VI. TAXATION OF COSTS. I. rSTTBRPRETATION. In [the] Act, unless there is something inconsistent in the context : — " Person " includes a corporation and any body of persons unincorporate : " Register," " court," and " general rules," mean such " register," " court," and " general rules," as are in [the] Act .... mentioned : " Prescribed " means prescribed by any general rules made in pursuance of [the] Act: " The Court of Chancery," and " the Court of Appeal in Chancery," and " Her Majesty's Superior Courts," include any courts in which the powers of the court so referred to by name may be for the time vested: (Land Transfer Act, 1875; 38 & 39 Vict.c. 87, s. 4.) In the rules and forms, unless there is something inconsistent in the context : — " The court " shall mean " the Supreme Court of Judicature : " (Gen. R. 63.) n. ORIGINAL APPLICATIONS. 1. Sanction to Registee GtOod HoldHtg Title. If the registrar, upon the examination of any title, is of opinion that the title is open to objection, but is ncTertheless a title the holding under which will not be disturbed, he may approve of such title, or may require the applicant to apply to the court, upon a statement signed by the registrar, for its sanction to the registration : (s. 17.) 2. Sanction to Registek Notice of Lease. In order to register notice of a lease or agreement for a lease, if the registered proprietor of the land does not concur in such registry, the applicant shall obtain an order of the court authorising the registration of notice of such lease or agreement, and shall deliver such order to the registrar, accompanied with the original lease or agreement or a copy thereof, and thereupon the registrar shall make a note in the register identifying the lease or agreement or copy so deposited, and the lease or copy so deposited shall be deemed to be the instrument of which notice is given ; but, if the remstered proprietor concurs in such registry, notice may be entered in such manner as may be agreed upon : (s. 61.) Every application to register notice of a Tease or agreement under the 50th and 51st sections of the Act shall contain a concise statement of the terms of the lease or agreement for a lease to be noticed. If the registered Eroprietor of the land does not concur, and a copy only of the original tase or agreement is deposited with the registrar with the order of the court authorising the registration of the notice, the lease or agreement shall be produced for comparison with the copy. If the registered proprietor concur, he shall be a party to and sign the application, and his signature shall be attested by a solicitor and didy venfied, and the application shall state the terms of the notice proposed to be entered, *but such terms shall be subject to the approv^ of the registrar : (G. R. 28.) The lease or agreement shall be left with the application, and shall be stamped to show that a notice of it has been entered upon the register : (G. R. 28.) Land Trcmsfer Act, 1875. 521 3. Inhibitions. [See^ost, ni., 5.] 4 Setting Aside Restrictions on Tbansfbe. Any .... directions [entered by the registrar on the register as to restricting the transferring or ehargiag of registered land is] subject to be set aside by the order of the court : (ss. 58, 59.) As to the application to the registrar, see G. B. 18. 5. Enforcing Order fob Production of Deeds. If any person disobeys any order of the registrar [as to production of deeds] made ia pursuance of sect. 71, the registrar may certify such disobedience to the court, and thereupon such person, subject to ... . appeal as [mentioned post, III., 6] may be punished by the court in the same manner in all respects as iJf the order made by the registrar were the order of the court : (s. 71.) 6. Enforcing Order as to Costs. If any person disobeys any order of the registrar [as to costs} made in pursuance of sect. [73] the registrar may certify sucn disobedience to the court, and thereupon such persoii, subject to . . . . appeal as [mentioned post, m., 7] may be punished by the court in the same manner in all respects as if the order made by the registrar were the order of the court: (8.73.) 7. Case for Opinion of Court. Whenever, upon the examination of the title to any land the registrar entertains a doubt as to any matter of law or fact arising upon such title, he may, upon the application of any party interested in such land, refer a case for the opinion of any of Her Majesty's Superior Courts, with power for the court to direct an issue to be tried before any jury for the purpose of determining any fact ; the registrar may also name the parties to such case and the manner in which the proceedings in relation thereto are to be brought before the court to which such case is referred : (s. 74.) Where any infants, married women, idiots, lunatics, persons of unsound mind, persons absent beyond seas, or persons yet unborn, are interested in the land in respect of the title to which any question arises as aforesaid, any other persons interested in such land may apply to the court .... for a direction that the opinion of the court to whom the case is referred under [the] Act shall be conclusively binding on such infants, married women, idiots, lunatics, persons of unsound mind, persons beyond the seas, or unborn persons : (s. 76.) The court .... shall hear the allegation of all parties appearing before it, and may disapprove altogether, or may approve, either with or without modification, of the direction of the registrar in respect to any case referred as to the title of land : (s. 77.) The court .... may also, if necessary, appoint a guardian or other person to appear on behalf of any infants, marrieo. women, idiots, lunatics, persons of unsound mind, persons absent beyond seas, or unborn persons, and if such court is satisfied that the interests of the persons labouring under disability, absent, or unborn, will be sufficiently represented in any case, it shall make an order declaring that aU persons, with the exceptions (if any) named in the order, are to be conclusively bound, and thereupon all persons, with such exceptions (if any) as aforesaid, shall be conclusively bound by any decision of the court having cognisance of the case in which such persons are concerned : (s. 77.) The opinion of any court to whom such case is referred by the -registrar 522 Land Transfer Act, 1875. shall be conclusive on all the parties to such case, unless the court, before whom such case is heard, permit an appeal to be had : (s. 75.) 8. Altekistg Rbgisteked Description of Land. No alteration shall be made in the registered description of laud, except under the order of the court or by way of explanation; but this provision shall not be construed to extend to registered dealings with registered land in separate parcels by the registered description, although such land was originally registered as one estate : (s. 83, sub-s. 6.) If the registered proprietor of any land is desirous that a revised description and map shall be substituted for the then registered description, the registrar shall, upon an order of the court being obtained under the 83rd section of the Act, cause a revised description and map to be substituted accordingly, and in that case such substituted description shall thenceforth be the registered description of the land, but without prejudice to the description existing at the time of substitution, so far as relates to estates previously registered : (G. B. 49.) 9. Modifying and Dischabging Conditions. [When, on registration or transfer, any condition that such land or any specified portion thereof is not to be built on, or is to be or not to be used in a particular manner, or any other condition running with or capable of being legally annexed to land, is annexed] any such condition may be modified or discharged by order of the court, on proof to the satisfaction of the court that such modification will be beneficial to the persons principally interested in the enforcement of such condition : (s. 84.) 10. Rectifying Register. Subject to any estates or rights acquired by registration in pursuance of [the] Act, where any court of competent jurisdiction has decided that any person is entitled to any estate, right, or interest in or to any registered land or charge, and as a consequence of such decision such court is of opinion that a rectification of the register is required, such court may make an order directing the register to be rectified in such manner as it thinks jxust : [a. 95.) Subject to any estates or rights acquired by registration, if any person is aggrieved by any entry made, or by the omission of any entry from the register under this Act, or if default is made, or unnecessary delay take place in making an entry in the register, any person aggrieved by such entry, omission, default, or delay may apply to the court in the prescribed manner for an order that the register may be rectified, and the court may either refuse such application with or without costs, to be paid by the applicant, or it may, if satisfied of the justice of the case, make an order for the rectification of the register : (s. 96.) The registrar shall obey the order of any competent court in relation to any registered land, on being served with such order or an of&cial copy thereof: (s. 97.) 11. Appointing Next Feibnd of Mareied Woman. Where a married woman entitled for her separate use, and not restrained from anticipation, is desirous of giving any consent, or becoming party to any proceeding under [the] Act, she shall be deemed to be an unmarried woman, but any other married woman [must] be examined in the prescribed manner, and it shall be ascertained that she is acting freely and voluntarily, and the court may, where it sees fit, appoint a person to act as the next friend of a married woman for the purpose of any proceeding under [the] Act, and may from time to time remove or change snch next friend: (s. 87.) • Land Transfer Act, 1875. 523 12. Appointing Gtjabdian of Infant oe Ltjnatic. Where any person who (if not under disability) might have made any application, given any consent, done any act, or been party to any pro- ceeding in relation to any land or charge under [the] Act, is an infant, idiot, or lunatic, the guardian or committee of the estate respectively of such person may male such applications, give such consents, do such acts, and be party to such proceedings as such person respectively, if free from disability, might have made, given, done, or been party to, and shall otherwise represent such person for the purposes of [the] Act ; where there is no guardian or committee of the estate of any such person as aforesaid, being infant, idiot, or lunatic, or where any person is of unsound mind or incapable of managing his affairs, but has not been found lunatic under an inquisition, it shall be lawful for the court to appoint a guardian of such person for the purpose of any proceeding under [the] Act, and from time to time to change such guardian : (s. 88.) 13. Oedekins Inspection op Registee, &c. Subject [to the rules] any person registered as proprietor of any land or charge, and any person authorised by any such proprietor, or by an order of court .... may inspect and make copies of and extracts from any register or document in the custody of the registrar relating to such land or charge : (s. 104.) 14. Oedeeing Appeaeancb in Action fob Specific Peepoemance. Where a suit is instituted for the specific performance of a contract relating to registered land, or a registered charge, the court having cognisance of such suit may by summons, or by such other mode as it deems expedient, cause all or any parties who have registered estates or rights in such land or charge, or have entered up notices, cautions, or inJtdbitions against the same, to appear in such suit, and show cause why such contract should not be specifically performed, and the court may direct that any order made by the court in such suit shall be binding on such parties or any of them : (s. 93.) All costs incurred by any parties so appearing in a suit to enforce against a vendor specific performance of his contract to sell registered land, or a registered charge, shaE be taxed as between solicitor and client, and, unless the court oth.erwise orders, be paid to the vendor : (s. 94.) ni. APPEALS FROM REGISTRAR. 1. On Objections to Title. The examination by the registrar of amy title .... shall be conducted in the prescribed manner, [and] due notice shall be given, where .... prescribed, and sufficient opportunity afforded to any persons desirous of objecting, to come in and state their objections to the registrar ; [who has] jurisdiction to hear and determine any such objections, subject to an appeal to the court : (s. 17.) 2. Feom Oedee on Death op Rbgisteebd Ownee. [Where] on the death of the sole registered proprietor, or of the survivor of several joint registered proprietors of any freehold land, [any] person [is appointed by the registrar to be registered as proprietor] an appeal [lies] to the court .... by any person aggrieved by [the] order : (s. 41.) . ,-, -d no As to the application and evidence before the registrar, see G. R. 26. 3. Feom Obdbb as to Sole Pbopeibtoe, ob Oo-pbopbibtoe with Husband. Any person aggrieved by any order of the registrar, [made where] the 524 Land Transfer Act, 1875. husband survives the wife [who is a female registered proprietor of free- hold land, appointing any person] as co-proprietor with him if he is entitled as tenant by the curtesy, [or] as sole proprietor in place of him- self and his deceased wife if he is not entitled as tenant by the curtesy [may appeal to the court] : (s. 44.) A& to the application and evidence before the registrar, see Gr. B. 26. 4. As TO Cautions. Any person aggrieved by any act done by the registrar in relation to cautions .... may appeal to the court : (s. 56.) 5. Prom Inhibitions. The court or, subject to an appeal to the court, the registrar, upon the application of any person interested .... in relation to any registered land or charge, may, after directing such inquiries (if any) to be made and notices to be given and hearing such persons as the court or registrar thinks expedient, issue an order or make an entry inhibiting for a time, or until the occurrence of an event to be named m such order or entry, or generally until further order or entry, any dealing with any registered land or registered charge : (s. 57.) As to applications to the registrar under this section, see 6. B. 17. The court or registrar may make or refuse to make any such order or entry, and annex thereto any terms or conditions the court or registrar may think fit, and discharge such order or cancel such entry when granted with or without costs, and generally act in the premises in such manner as the justice of the case requires : (s. 57.) Any person aggrieved by any act done by the registrar in pursuance of this section may appeal to the court : (s. 57.) 6. Peom Oedeb as to Pbodtjotion of Deeds. Any person aggrieved by any order of the registrar [as to production of deeds] under .... sect. [71] may appeal .... to the court, which may annul or confirm the order of the registrar with or without modifica- tion: (s. 71.) 7. Fbom Obdee as to Costs. Any party aggrieved by any order [as to costs made by] the registrar imder this section may appeal .... to the court, which may annul or confirm the order of the registrar, with or without modification : (s. 73.) 8. Peom Bntey, Omission to Entee, &c. [See swp. II., 10.] IV. APPEALS PBOM COUBT. 1. Whebe Oedeb Made. Any person aggrieved by an order made under [the] Act by the court .... may appeal within the prescribed time, in the same manner and with the same incidents in and with which orders made by the [Chancery Division] on cases within the ordinary jurisdiction of such court may be appealed from: (38 & 39 Vict. o. 87, s. 117.) As to the time for appealing, see post, V. 2. Whbeb Opinion Given. [See swp. II., 7.] V. MODE OF APPLYING OB APPEALING. 1. To WHAT COUET. The Court means the Chancery Division (see s. 114 ; G. B. 63), or any judge thereof sitting in court or at chambers : (s. 114.) Lands Transfer Act, 1875. 525 2. Time for Appealing. No appeal shall be brought from a deoieion or order of the registrar, or of the court, after twenty-eight days from the date of such decision or order, without leave of the court : (G. R. 69.) The time for appealing from .... any order or decision made in ... . any matter not being an action shall be [twenty-one days] : (0. LVIII., rr. 9, 15.) 3. Summons. All applications to the court and appeals from the registrar shall be by summons : (Gr. R. 69.) Every application to be made under these rules shall be signed by the applicant or his solicitor : (G. R. 38.) All notices and summonses required to be given or served for any purpose shall be prepared by the applicant on the official forms and under the stamp of the office : (G. R. 63.) 4. Seevice. If the service of the notices or summonses be personal, it shall be proved by declaration ; if the service be through the post, it shall be made by registered letter, and in such case open official envelopes, duly stamped and addressed, and marked outside " Office of Land Registry," and with the word " Registered," and containing the notice stamped, shall be left at the office for postage : (G. R. 53.) Every notice required to be given shall, if sent through the post, unless returned, be deemed to have been received by the person addressed within seven days, exclusive of the day of posting. On the return of any letter containing any notice, the registrar shall act in the matter requiring such notice to be given in such manner as he shall think fit : (G. B. 53.) Substituted service on the solicitor or agent of any person shall be deemed good service on such person if the registrar shall so direct : (G. B. 54.) 6. Statement. Upon any application to the court being made on the requirement of or appeal from the registrar, or for the rectification of the register, under the 96th section [see sup., II., 10], a statement shall be prepared bythe appli- cant and settled and signed by the registrar, and forwarded to the court through the office before the hearing : (G. R. 59.) 6. Notice op Appeal. No ^peal from a decision or order of the registrar, or of the court, shall affect any dealing for valuable consideration dtily registered before a notice in writing of such appeal has been lodged in the oface on the part of the appellant, and a note thereof made, on his application, in the register : (G. B. 59.) VI. TAXATION OF COSTS. All costs, charges, and expenses that are incurred by any parties in or about any proceeding for registration of land, shall, unless the parties otherwise agree, be taxed by the taxing officer of the court .... as between solicitor and client : (s. 73.) LAW AND EQUITY. [See Equitable Ritles.] 526 Leases — Leave to Defend, LEASES. I. SANCTION TO RENEWALS WHEN LESSOR OUT OF JURISDICTION. Where any person who, in pursuance of any coyenant or agreement in writing, might if within the jurisdiction and amenable to the process of the court .... be compelled to execute any lease by way of renewal shall not be within the jurisdiction or [so] amenable [the court may] upon the petition of any person or any of the persons entitled -to such renewal (whether such person be or be not under any disabiBty), direct such person as the said court shall think proper to appoint for that purpose to accept a surrender of the subsisting lease, and make and execute a new lease in the name of the person who ought to hare renewed the same : (11 Geo. 4 & 1 Wm. 4, c. 65, s. 18.) Such deed executed by the person .... appointed [is] as valid as if the person in whose name the same [is] made had executed the same, and had been alive', and not under disability : (s. 18.) No renewed lease shall be executed by virtue of [the] Act, in pursuance of any covenant or agreement, unless the fine (if any) or such other sum or sums of money (if any) as ought to be paid on such renewal, and such things (if any) as ought to be performed in pursuance of such covenant or agreement by the lessee or tenant be first paid and performed : (s. 20.) Counterparts of every renewed lease .... shall be duly executed by the lessee : (s. 20.) In every such case it shall be in the discretion of the court ... if under the circumstances it shall seem requisite, to direct [an action to be instituted] to establish the right of the party seeking the renewal, and not to make the order for such new lease, unless by the [judgment] to be made in such cases, or until after such judgment shall have been made : (s. 18.) All fines, premiums, and sums of money, which shall be had, received, or paid for or on account of the renewal of any lease, after a deduction of all necessary incidental charges and expenses, shall be paid .... if snch renewal shall be made in the name of any person out of the jurisdiction or not amenable as aforesaid, to snch person, or in such manner, or into .... court, to such account, and to be applied and disposed of as the said court shall direct : (s. 21.) II. ON BEHALF OF PERSONS UNDER DISABILITY [see Infants; Mabeied Women]. III. OP SETTLED ESTATES [see Settled Estates Act]. rv. OF PROPERTY SUBJECT TO PROCEEDINGS [see Peopeety]. LEAVE TO ATTEND PROCEEDINGS. [See Judgment, XVI.] LEAVE TO DEFEND. IN LAND ACTIONS. [See Appeaeance, IX.] WHERE WRIT SPECIALLY INDORSED. [See Judgment, III.] Legacy Duty Act. 627 LEGACY DUTY ACT. I. PAYMENT m. II. INYESTMENT. in. APPLICATION OP MONET. IV. OEDEE WHERE MONET IMPEOPEBLT PAID IN. I. PAYMENT IN. Where by reason of the infancy, or absence beyond the seas, of any person entitled to any legacy, or to the residue of any personal estate, or any part thereof, chargeable with duty by -virtue of [th^ Act, the person or persons having or taJdng the burden of any will or testamentary instrument, or the administration of such personal estate, cannot pay such legacy or some part thereof, although he, she, or they may have effects for that purpose, or cannot pay such residue, or some part thereof, although he, she, or they may have the same, or some part thereof, in his, her, or their hands, it shall be lawful for such person or persons to pay such legacy, or residue, or any parts or part thereof respectively, or any sum or sums of money on account thereof, after deducting the duty chargeable thereon, into [court] to the account of the person or persons for whose benefit the same shall be so paid : (36 Geo. 3, c. 52, s. 32.) Such payment into the bank shall be a sufficient discharge for the money so paid in, provided the duty be also paid thereon : {Id.) When the money is in cash no order is necessary : (Dan. 1912.) Where the money is in stock an order for payment in must be obtained on ex parte motion, ex parte petition, or ex parte original summons, of which summons a duplicate must be filed in the Central Office ■• (Dan. 1912; Chambers.) The motion paper, petition, or summons, and all the orders and affidavits are intituled in the Act, and of the infant or person beyond seas : (Dan. 1912.) II. INVESTMENT. The dividends accruing on [3Z. per Cent. Consols purchased with moneys paid in under the Legacy Duty Acts] previously to the commencement of the Chancery Ennds Rules, 1872, may, when or so soon as they amount to or exceed lOi., be invested (with their accumulations), without any formal request, in the purchase of like stock in trust in the same matter and account to which the original sum of stock stands : (Ch. E. R., 1874, r.65; C. 0.1,r. 11.) A sum of money amounting to or exceeding 40Z. paid into court after the commencement of [the] rules in pursuance of .... 36 Geo. 3, c. 52, s. 82, win be invested (without an order) in Consolidated SI. per Cent. Annuities : (Ch. F. R. 1874, r. 65.) [The investment is made] upon a written request of the person paying it in, or of his solicitor, or upon a written request made by or on behalf of a person claiming to be entitled thereto or interested therein ; {Id.) The dividends accruing in respect [of a sum amounting to or exceeding 40Z. paid into court after the rules under the Legacy Duty Act and invested in 3Z. per Cent. Consols] when or so soon as they shall amount to or exceed lOZ., shall be from time to time invested in like annuities, if so requested either in the original request or in a subsequent request : (Ch. P. R. 1874, r. 65.) If such money [has] been placed on deposit, before such request [is] left at the Chancery Pay Office, such money and interest to be credited in respect thereof, if amounting to 40L, [will] upon a like request be with- drawn from deposit and invested : {Id.) 528 Legacy Duty Act — Lien. III. APPLICATION OP MONET. Such money [paid in] with the dividends thereon, shall be transferred and paid to the person or persons entitled thereto, or otherwise applied for his or their benefit, on application to the court .... by petition or motion, in a summary way (36 Geo. 3, c. 52, s. 32) ; [or by summons] when the sums paid into the bank or the stock transferred .... dbes not exceed 300Z. cash or 300J. stock as the case may be : (C. O. 35, r. 1.) When a fund of stock has been paid in under an order, or an order in the matter has been made since a fund of cash was paid in, the summons is an ordinary one (Dan. 1913; Ohambees, XIII.) ; otherwise the applica- tion is by original summons : {Id.) The application must be supported by an affidavit of the applicant's identity, and if the fund was paid in on account of his infancy, it must be shown that he is of full age : (Dan. 46.) An office copy of the Chancery Paymaster's certificate will be evidence of the payment or transfer in : (see Ch. P. B. 1874, r. 30.) If the duty paid to the said commissioners shall appear to be less than the duty which ought to have been paid, it shall be lawful for the person or persons who paid such money into the bank as aforesaid, upon payment of the fuU duty to the said commissioners, in such manner as the same ought to be paid, vrith such penalties, if any, as ought to be paid in respect thereof, to apply to the court .... in a summary way, for the repayment of the further sum paid to the said commissioners for such duty out of the money in the bank so paid in by such person or persons, or the produce thereof, which payment the said court is authorised to order : (36 Geo. 3, c. 52, 8. 32.) lY. ORDER WHEN MONET IMPROPERLT PAID IN. If it shall afterwards appear that such money, or any part thereof, has been improperly paid into the bank as aforesaid, it shall also be lawful for the .... court .... upon petition, in a summary way to dispose thereof, and of the annuities purchased therewith, and the dividends received thereon, in such manner as justice shall require : (36 Geo. 3, c. 52, s. 32.) LETTERS PATENT. [See Jurisdiction.] LIBERTY TO APPLY. [See Judgment, XVn.] LIEN. All causes and matters for the purpose of the sale and distribution of the proceeds of property subject to any lien are assigned to the Chancery Division : (J. A. 1873, s. 34.) As to delivering property subject to a lien, see Goods, I., 3. As to lien for costs, see SoIiICItob. Life Assurance Company — Lis Pendens. 529 LIFE ASSURANCE COMPANY. As to deposit of funds, iuualgamation, and transfer, see Companies, X. As to wmding-tip, see Winding-dt. As to i)voeedure in case of disputed assignment of policy or conflict- incf cliiims to money assured, see Intbepleadek ; Tkxtstees. LIS PENDENS. I. RBGISTEBING. No lis pendens shall bind a purchaser or mortgagee without express notice thereof, unless and until a "memorandum or minute containing the name and the usual or last-known place of abode, and the title, trade, or profession of the person whose estate is intended to be afEected thereby, and the court . and the .title of the cause and the day when the taction was commenced] shall be left with the [proper] master [at the 'eutval Office], who shall forthwith enter the same particulars in a book .in alphabetical order by the name of the person whose estate is intended to be affected by such lis pendens : (2 Vict. c. 11, s. 7.) The memorandum or minute must be on parchment, and a separate memorandum is required for every defendant or other person in whose name the registry is proposed to be made. The plaintiff's solicitor, or i>ther pereou leaving this memorandum with the master, is required to .sign an admission of having left it, and to take a receipt for it : (Dan. 3-27.) As to re-registering, see Dan. 328. , n. SATISFACTION" OF. The master may, upon the filing with him of an acknowledgment in the form or to the effect [in the Act] be at liberty to enter a satisfaction or discharge as to any registered lis pendens, and may issue certificates of the entry of any satisfaction or discharge : (23 & 24 Vict. o. 115, s. 2.) III. VACATING. The court before whom the property sought to be bound is in litigation may. upon the determination of the lis pendens, or during the pendency thereof, where the court shall be satisfied that the litigation is not prose- cuted bona fide, make an order, if it shall see fit, for the vacating of the i-egfistration without, the consent of the party who registered it, and may in the discretion of the court direct the party on whose behalf the regis- tration was made to pay all the costs and expenses occasioned by the registration or the vac;0,ting thereof : (30 & 31 Vict. c. 47, s. 2.) The application to the court pending the litigation may be in a summary way by petition or motion in court, or by summons at chambers : (30 & 31 Vie't. e. 47. s. 2). The application is entitled in the matter of the Act and of the former .suit : iClutton V. Lee, 45 L. J. 684, Oh. ; 24 W. R. 607.) The motion may be made ex parte or on notice, but in the former case !in order nisi only will be made : {Pooley v. Bosanquet, L. Rep. 7 Ch. Div. 541 . 26 W. B. 587.) If an order shall be made for vacating any such registration, the [master] shall, upon the filing with him of an office copy of such order, cuter a discharge of such lis pendens on the register [and] may issue certificates of such entry : (30 & 31 Vict. c. 47, s. 2.) S30 Local Loans Act — Lunatics. LOCAL LOANS ACT. I. ENFORCING PAYMENT OP LOAN. If default is made in payment of any sum [for the time being due or authorised to be raised on or in respect of any security issued under the Act] such sum shall be deemed to be a specialty debt due to the person entitled thereto from the local authority, of such a nature that a man- damus win be granted to enforce the payment thereof, and an action may be brought accordingly, in which a mandamus may be claimed : (38 & 39 Vict. c. 83, s. 11.} When default is made for twenty-one days in payment of a sum not less than 500?. an application may be made to a County Court for a receiver instead of or in addition to bringing an action : (s. 12.) II. RECTIFICATION OP REGISTER. If the name of any person is without sufficient cause entered in or omitted from the register, or if default is made or unnecessary delay takes place in making any entry in such register, the person aggrieved •or the local authority may apply to the court for an order that the register may be rectified : (s. 25.) . The court may either refuse the application with or without costs to be paid by the applicant, or may, if satisfied of the justice of the case, whether there has or has not been any default on the part of the registrar, -make an order for the rectification of the register, and make such order iis to the payment of the costs of the application or of damages to the person aggrieved as to the court may seem just : (Id.) The court may, in amy proceeding under this section, decide any questions relating to the title of any party to such proceeding, to have his name entered in or omitted from the register, and generally any question which it may be necessary or expedient to decide for the reetifi- ■cation of the register : (Id.) The court for the purposes of this section means [the Supreme Court of Judicature], and where the value of any security or securities to which the application relates does not exceed 50Z. shall include a County Court, and the jurisdiction by [the] Act given to [the High Court] may fee exercised in a summary manner by any judge or judges of such court sitting in chambers or otherwise : (s. 25.) LORD MAYOR'S COURT. [See Matos's Coitet.] LORD ST. LEONARDS' ACT. [See Confirmation op Sales, &c., II. ; Trustees.] LUNATICS; I. SO POUND BY INQUISITION. 1. Jtjeisdiction [see Jurisdiction, VII.] 2. As Parties [see Parties]. 3. Service of Writ on [see "Writ op Summons]. 4. Appearance [see Appeaeanoe, IV.] It seems necessary, if the lunatic has no committee, that a person apply- Lunatics. 531 ing to be appointed guardian ad litem should first enter an appearance on behalf of the lunatic. An appearance entered by the plaintiff on the lunatic's behalf is irre- gular : (0. O. 10, r. 5.) 5. Admissions in Pleading. Allegations of fact in pleading, though not denied specifically or by necessary implication, or stated to be not admitted by a lunatic's pleading, are not thereby admitted as in ordinary cases : (see O. XIX., r. 17; Pleading.) II. NOT SO POUND BY INQUISITION. 1. As Paeties [see Parties]. 2. Service op Weit on [see Weit of Summons]. 3. Appearance [see Appearance, Y.] 4. Admissions in PIbading. Allegations of fact in pleadings, though not denied specifically, or by necessary implication, or stated to be not admitted by the pleadmg of a lunatic not so found, are not thereby admitted, as in oi'dinary cases : (O. XIX., r. 17 ; Pleading.) 5. Care of Property, and Maintenance. It is not by reason of, but notwithstanding, the incompetency, that the vourt entertains proceedings, and every proceeding, or step in a pro- ceeding, after an inquisition in lunacy has been instituted, is irregular and void : {Beall v. Smith, L. Rep. 9 Oh. App. 85.) But even where there is no proceeding in lunacy, the Chancery Division has no jurisdiction over the person of the lunatic : [Be Bligh, L. Rep. 12 Ch. Div. 364 ; 41 L. T. Rep. N. S. 570 ; 49 L. J. 56, Oh. ; 27 W. R. 876 ; Be Brandon's Trust, L. Rep. 13 Ch. Div. 773 ; 41 L. T. Rep. N. S. 755 ; correcting Vane v. Vane, L. Rep. 2 Ch. Div. 522 ; 34 L. T. Rep. N. S. 613 ; 45 L. J. 381, Oh. ; 24 "W. R. 602.) But the jurisdiction of the Chancery Division over its wards remains notwithstanding they become lunatic during their infancy, and may be exercised by entertaining applications as to their custody and education, .although the question of lunacy is the principal point in dispute : {Be Mwards, L. Rep. 10 Ch. Div. 605 ; 40 L. T. Rep. N. S. 119 ; 48 L. J. 233, Ch. ; 27 W. R. 611.) The court may (11 Appoint a guardian of the estate of the limatic ; (2) Order the income of his property to be applied for his maintenance; (3) Order the corpus of his property to be applied in repaying part advances for maintenance : (Dan. 1214.) Payments may be ordered out of a fund in court, in discharge of past ■outlay by private persons in maintaining a lunatic : (Peters v. Orote, 7 Sim. 238.) Where a married woman was entitled under the trusts of a wiU to a iund in court, and her husband was of unsound mind, not so foundry inquisition, the fund was ordered to be paid to her on her separate receipt, she undertaking to apply-the same towards the maintenance of her husband jind herself : {Be Dixon's Trusts, 40 L. T. Rep. N. S. 208.) A somewhat similar order was made on the petition of the lunatic's uncle : {Be Soskins' Legacies, W. N. 1880, p. 62.) And see Bligh v. O'Connell (26 W. R. 311). The application is by petition, or more usually by summons {Id.) of the lunatic by his next friend : {Beall v. Smith, L. Rep. 9 Ch. App. 91.) The evidence is by aflSdavit, and as to the same particulars as in the m :.i 2 532 Lunatics — Mandamus. case of maintenance, &e., of infants [see Infants], and must also show the lunatic's state, his inability to manage his property, and that he has not been found lunatic by proceedings in lunacy : [Id.) The claim in respect of the maintenance of a lunatic in an asylum is. merely a debt of the lunatic, and the court has no jurisdiction, on the death of the lunatic, to interfere with the right of his legal personal ■representatives by ordering payment of the expenses of his maintenance out of a fund in court to which the lunatic had become entitled : (Be Ma/rmon's Trusts, L. Rep. 8 Ch. Div. 256 ; 38 L. T. Rep. N. S. 797 ; 47 L. J. 312, Ch. ; 26 W. R. 621.) Under the Acts relating to" pauper lunatics (as to which see Seton, 1517) the court will on petition direct payment of the income or capital of a fund in court to which the lunatic is entitled, to guardians, or overseer* of the poor, to recoup payments for part maintenance, or to be applied in future maintenance : (Ban. 1215 ; Seton, 1516-8 ; Be Coleman's Trusts. W. N. 1866, p. 209.) MAINTENANCE. [See Infants; Lunatics; Maeeied Women.] MANAGEMENT OF PROPERTY. [See Infants; Peopeety; Tetjstees.] MANDAMUS. I. JURISDICTION. n. WHIT OF SUMMONS. III. INTEELOCUTOEY MANDAMUS. IV. PE.S!CIPE. V. WEIT 01" MANDAMUS. 1. FOEM AND EeTUBN. 2. How Enforced. I. JURISDICTION. A mandamus may be granted .... by an interlocutoiy order of th& court in all cases in which it shall appear to the court to be just or con- venient, that such order should be made : (J. A. 1873, s. 26, sub-s. 8.) A mandamus which can be granted by interlocutory order can, a fortiori, be granted at the trial : (Beddow v. Beddow, L. Rep. 9 Oh. i)iv. 89 ; 47 L. J. 688, Oh. ; 26 W. R. 670.) As to the meaning of " just or convenient," see Injunction, II. The Chancery Division can only grant a mandamus directing the per- formance of some act, or something to be done, which is the re.snlt of an action where an action lies. It cannot grant a prerogative writ of man- damus : (Glossop V. JSeston Local Board, L. Rep. 12 Ch. Div. 102 ; 40 L. T. Rep.. N. S. 13 ; and see Selw. N. P. 13th ed., 1016.) Where a cause or matter is pending, the Chancery Division has jurisdic- tion to issue the \Trit in every other case : {Be Paris Skating Binh Mandamus. 533 Company, L. Rep. 6 Ch. Div. 731 ; 46 L. J. 831, Ch. ; 25 W. R. 767 ; and see J. A. 1873, s. 16, cited Jubisdiction, IV.) Any writ may be issued which might have been issued by a Common Law Court {Id.) The plaintifE in any action except replevin and ejectment might indorse on his writ a notice that the plaintifE intended to claim a writ of mandamus, and might thereupon claim in his declaration, either together with any other demand which might be enforced in an action, or separately, a writ of mandamus commanding the defendant to fulfil any duty in the f ulfil - ment of which the plaintiff was personally interested : (C. L. P. A. 1854, s. 68.) The plaintiff had also to show by his pleading sufficient grounds upon which such claim was founded, and set forth that the plaintifE was per- sonally interested therein, and that he sustained or might sustain damage by the non-performance of such duty, and that performance thereof had been demanded by him, and jefused or neglected : {Id., s. 60.) The duty must have been one of a public or quasi pnbUc nature ; the writ would not lie to compel performance of a merely personal contract ; and the courts used their discretion as to granting the writ, though the plaintifE had a good cause of action in respect of the breach of duty : (Day, 3rd edit., 270-1.) It was not necessary to show that actual damage had been sustainedv: {Fotherhy v. Metropolitan Railway Company, L. Rep. 2 C. P. 188.) The writ lay to compel a railway company to issue a warrant to the sherifE to summon a jury to assess the value of land which they had given notice that they would require for the purposes of their Act : {Id.) As to issuing a mandamus against the treasury : (see Be Edmunds, 20 W. R. 206 ; see also C. L. P. A. 1854, ss. 70-74.) The jurisdiction conferred of granting a mandamus is a reason for granting an injunction instead, which is at least as short and cheap a process : (see Hedley v. JSafes, L. Rep. 13 Ch. Div. 498 ; 42 L. T. Rep. N. S. 41 ; 49 L. J. 170, Ch. ; 28 W. R. 365.) II. WRIT OF SUMMONS. The writ must be indorsed with a claim as follows : — " And for a mandamus " : (App. A. p. 2, s. 5, Rules of 1875 ; and see Injotjction, III.) III. mTEBLOCUTORT MANDAMUS. An application for an order under sect. 25, sub-s. 8, of the Act .... may be made to the court or a judge by any party. If the application be by the plaintiff for an order under the' said sub-s. 8, it may be made either ex parte or with notice, and if it be by any other party, then on notice to the plaintifE, and at any time after appearance by the party making the application: (O. LII., r. 4; and see sup., I; INJUNCTION, IV.; Inter- LOCtTTOET PbOCEEDINGS.) IV. PRiEOIPE. A form of praecipe for the writ is given in Sched. Ei 14 to the Rules of April, 1880. V. WRIT OF MANDAMUS. 1. Form and Return. The writ .... shall simply command the performance of the duty, and in other respects shall be in the form of an ordinary writ of execution, except that it shall be directed to the party and not to the sherifE, and may 534 Mandarmis — Married Women. be issued in term or vacation, and returnable forthwith ; and no return thereto, except that of compliance, shall be allowed, but time to return it may, upon sufficient grounds, be allowed by the court or a judge, either with or without terms : (C. L. P. A. 1854, s. 72.J 2. How Enfoeced. The writ of mandamus so issued as aforesaid .... in case of dis- obedience, may be enforced by attachment : (C. L. P. A. 1854, s. 73; and see Execution XII., 5.) MARRIAGE. OF PARTIES [see Parties.] OE GUARDIAN [see Infants, II., 5.] OP INFANTS, [see Infants, II.; V.] SETTLEMENTS [see Infants, II.; VI., 7.] MARRIED WOMEN. I. THEIE POSITION IN AN ACTION. 1. As Parties [see Paeties.] 2. Claims Against [see Weit of Summons.] 3. Service of Weit on [see Weit of Summons.] 4. Appearance by [see AJppeaeanoe.] 5. Notice op Judombnt. 6. Orders on Further Consideeation [see Evidence, III., 3.] 7. How Sep abate Estate beached [see Parties.] II. SBPAEATE EXAMINATION. 1. Where Necessary. (a) Purchase Money of Bealty m Cov/rt. (b) Equity to Settlement. (c) Under Settled Estates Act [see Settled Estates Act.] (d) Under Lamds Cfla/uses Act [see Lands Clauses Act.] 2. How Taken. (a) Within Jvmsdiction. (1) Before Judge. (2) Before Commissioners. (6) Out of Jurisdiction. 3. ASCEETAININO AMOUNT TO BE DEALT WITH. III. APPLICATIONS UNDEE MAEEIED WOMEN'S PEOPEETT ACT. 1. Impkopbh Deposits, Annuities, and Investments. 2. Questions between Husband and Wife. 3. Appointing Trustee of Policy Monet. IV. SANCTION TO EENEW LEASES. 1. By Lessees. 2. By Lessoes. I. THEIR POSITION IN AN ACTION. 1. As Pabties. [See Parties.] 2. Claims against. [See Weit of Summons.] 3. Seevice of Writ on. [See Writ of Summons.] Married Women. 535 4. Appearance by. [See Appearance.] S. Notice of Judgment. The notice must be served personally on both husbajid and wife, although the suit does not relate to the wife's separate estate, and they are residinpf together : (Dan. 359.) 6. Orders on Further Consideration. [See Evidence, III., 3.] 7. How Separate Estate Reached. [See Parties.] II. SEPARATE EXAMINATION. 1. Where necessary. (a) Purchase Money of Ileal Estate. GreneraUy a married woman's interest in real estate to which she is not entitled for her separate use can only be validly passed by a deed acknow- ledged under the Pines and Recoveries Act : (Seton, 669 ; Franks v. Bollam, L. Rep. 3 Ch. App. 717 ; 18 L. T. Rep. N. S. 623 ; 37 L. J. 664, Ch. ; 16 W. R. 1158.) An examination by the court or commissioners is necessary when an application is made to deal with the purchase money of real estate, whether an estate in fee simple, fee taU, or for life, belonging to a married woman, and prevents the necessity of having a deed acknowledged : {Re Worthington, Seton, 668; Re Sayes, 9 W. R. 769 ; Shelf ord R. P. Stat. 370; Dan. 94; Standering v. Sail, L. Rep. 11 Oh. Div. 652; 27 W. R, 749.) In some cases where the amount was small, both examination and deed acknowledged have been dispensed with {Re Clarke's Estate, 11 L. T. Rep. N. S. 663 ; 13 W. R. 401 ; Knapping v. Tomlimon, 18 W. R. 684) ; but Bacon, V.C., recently refused to dispense with examination where the amount was under 200Z. ; {Topham v. Burgoyne, 41 L. T. Rep. N. S. 670 ; 49 L. J. 213, Ch.) (6) Equity to a Settlement. An examination i^ necessary when the court makes a decree or or<^er directing payment, transfe^, or application of property in respect of which a married woman has an equity to a settlement : (Dan. 87.) The examination will not be made or ordered unless the married woman is of full age (Dan. 91) ; or where she is a ward married without sanction : (Wms. Pet. 22.) Sums below 200Z. or lOZ. a year, or a sum likely to be reduced below that amount by costs, will be paid out without examination (Dan. 92 ; Seton, 668) ; and the examination was dispensed with where the amount was under 50Z. a year : (Seton, 668.) With the husband's consent, sums under 500Z. may be paid to the wife on her separate receipt, without examination : {Re Morton's Estate, 31 L. T. Rep. N. S. 82; W. N. 1874, p. 181 ; Re Webh, Re Shelton, Seton, 668.) Where there are special circumstances examination wiU be ordered : {White Y. Berriok, L. Rep. 4 Ch. App. 345; 20 L. T. Rep. N. S. 386; 38 L. J. 679, Ch. ; 17 W. R. 522.) (c) Under Settled Estates Act. [See Settled Estates Act.] (d) Under Lands Clauses Act. [See Lands Clauses Act.] S36 Married Women. 2. How Taken. (a) Within Jurisdiction. (1) Before Judge. When the married woman is in London, or willing to attend, the judee examines her apart from her husband, at the time of pronouncing the judgment or order disposing of the fund, to ascertain whether she waives her right, and a note of the examination is made by the registrar and ■embodied in the judgment or order : (Dan. 87.) If the application for payment out is by summons, the examination may be taten before the judge at chambers : (Dan.' 88-9 ; Seton, 661.) (2) Before Commissioners. When a married woman is unable or unwilling to attend before the court, an order is made appointing commissioners for the purpose of taking her examination : (Dan. 86, 87.) Sometimes, to save expense, the court, on making the order, dealing with a fund, orders the fund to be carried over to the wife's separate account, and at the same time appoints commissioners : (Dau. 88.) Sometimes the court suspends the drawing up of the judgment or order to allow an examination to be made, in which case the order appointing the commissioners is obtained on ex parte summons, the result of the examination being embodied in the order made when the matter is again mentioned to the court : (Dan. 88.) Where a fund has been carried over to a married woman's separate account, a summons is taken out, after the petition to deal with it has been answered, or a summons for the like purpose has been adjourned for an order to appoint commissioners, and the examination is taken before the petition is heard, or the summons is again brought on : (Dan. 88.) Three or four professional persons (who must not be concerned for the husband in the particular matter), are usually appointed commissioners, two of whom may act without the rest : (Dan. 89.) The examination of the married woman, which is taken apart from the husband, is as to when, in what manner, and for what purpose she is willing and desirous that the fund should be disposed of, the commissioners reading and explaining to her the order for examination, the examination being taken in writing, and signed by her, and the certificate being signed by the commissioners : (Dan. 89.) The examination, certificate, and affidavit verifying all the signatures, must be filed in the Central Office : (Dan. 89.) (2) Out of the Jurisdiction. When the married woman is abroad the court orders commissioners abroad to be appointed : (Dan. 89 ; Seton, 662.) 3. ASCBBTAINING AmOTINX TO BE DEALT WiTH. The rule requiring a married woman to be perfectly acquainted with the amount of interest to be parted with is imperative (per Wood, V.C, Moss V. Bunlop, 8 W. R. 39 ; and the examination will not generally be taken or ordered untU the amount of the fund is clearly ascertained, Sperling v. Bochfort, 8 Ves. 164 ; Woollands v. Crowther, 12 Ves. 174; Dan. 91 ; Seton, 668) ; except where it is subject only to a deduction for costs : (Dan. 91.) Consent may be taken as to the parts ascertained from time to time : {Powell v. Merrett, Seton, 668.) III. APPLICATIONS UNDER MARRIED WOMEN'S PROPERTY ACT. 1. Impeopeb Deposits, Annuities, and Investment. Where any deposit or annuity under sect. 2, or any investment in the Married Women. 537 funds, or joint-stock company, or a society under sects. 3-5 is made by a married woman by means of moneys of her husband, without his con- sent, the court may, on summons or motion in a summary way, as vmder sect. 9 of the Act [see posf}, order payment or transfer to the husband : (33 & 34 Vict. c. 93, ss. 2-5.) 2. Questions between Husband and Wife. In any question between husband and wife as to property declared by [the] Act to be the separate property of the wife, either party may apply by summons or motion in a summary way either to the [Chancery Division] or (irrespective of the value of the property) the judge of the County Court of the district in which either party resides, and thereupon the judge may make such order, direct such inquiry, and award such costs as he shall think fit. The judge may, if either party so require, hear the application in his private room (s. 9). Any order made by such jvtflge shall be subject to appeal in the same manner as the order of the same judge made in a pending suit or on an equitable plaint would have been. 3. Appointing Teustee of Pomct Money. When a policy of insurance is efPected by any married man on his own life, and expressed upon the face of it to be for the benefit of his wife or of his wife and children, or any of them, when the svim secured by the policy becomes payable, or at any time previously, a trustee thereof may be appointed by the [Chancery Division] or by the judge of the County Court of the district, and the receipt of such trustee shall be a good discharge to the office (s. 10). The application is by petition : [Re Mellor's Policy, L. Rep. 6 Ch. Div. 127 ; 47 L. J. 246, Ch. ; 26 W. R. 70.) On the hearing of the petition the court will declare the rights and interests of the children in the fund : {Id., and see L. Rep. 7 Ch. Div. 200 ; 47 L. J. 247, Ch. ; 26 W. R. 309.) As to what policies are within the Act, see Holt v. Everall (L. Rep. 2 Ch. Div. 266; 34 L. T. Rep. N. S. 599 ; 45 L. J. 433, Ch. ; 24 W. R. 471.) lY. SANCTION TO RENEW LEASES. 1. By Lessees. Where a feme covert is or shall beoome entitled to any lease or leases made or granted, or to be made or granted, for the life or lives of one or more person or persons, or for any term of years, either absolute or determinable upon the death of one or more person or persons, or other- wise, it shall be lawful .... for such feme covert, or any person on her behalf, to apply to the court . . . . by petition or motion in a summary way, and by the order and direction of the court . . . such feme covert or any person appointed in the place of such /erne covert, shall and may be enabled from time to time, by deed or deeds, to surrender such lease or leases, and accept and take, in the place and for the benefit of such feme covert, one or more new lease or leases of the premises comprised in such lease surrendered for and during such number of lives, or for such term or terms of years determinable upon such number of lives, or for such term or terms of years absolute, as was or were mentioned or contained in the lease or leases so surrendered at the nuiking thereof respectively or otherwise as the court directs : (11 Geo. 4 & 1 Will. 4, c. 65, s. 12.) Unless the time or consideration of such lease and the reasonable charges shall be otherwise paid or secured, the same, together with interest, shall 538 Married Women — Mayor's Court. be a charge upon such leasehold premises, for the benefit of the person who shall advance the same : (11 Geo. 4 & 1 WiU. 4, c. 65, s. 14.) Every lease to be renewed as aforesaid shall operate, and be to the same uses, and be liable to the same trusts, charges, incumbrances, dispositions, devises, and conditions, as the lease to be from time to time surrendered as aforesaid was or would have been subject to in case such surrender had not been made : (11 Geo. 4 & 1 WiU. 4, c. 65, s. 15.) As to payment of fines and execution of counterparts, see post, 2. 2. By Lbssoes. Where any .... feme covert, might, in pursuance of any covenant or agreement, u not under disability be compelled to renew any lease made or to be made for the life or lives of one or more person or persons, or for any term or number of years absolute or determinable on the death of one or more person or persons [she may] by the direction of the court .... signified by an order to be made in a summary way upon [her] petition or [that] of any person entitled to such renewal from time to- time .... accept of a surrender of such lease, and .... make and execute a new lease of the premises comprised in such lease, for and during such number of lives, or for such term or terms determinable upon such number of lives, or for such term or terms of years absolute, as was- or were mentioned in the lease so surrendered at the making thereof, or otherwise, as the court by such order shall direct : (11 Geo. 4 & 1 Will. 4, c. 65, s. 16.) No renewed lease shall be executed by virtue of [the] Act, in pursuance of any covenant or agreement, unless the fine (if any), or such other sum or sums of money (if any), as ought to be ,paid on such renewal, and such things (if any) as ought to be performed in pursuance of such covenant or agreement by the lessee or tenant, be first paid and performed, and counter- parts of every renewed lease to be executed by virtue of [the] Act shall be duly executed by the lessee : (11 Geo. 4 & 1 Will. 4, c. 65, s. 20.) All fines, premiums, and sums of money, which shall be had, received, or paid for or on account of the renewal of any lease, after a deduction of all necessary incidental charges and expenses, shall be paid .... if such renewal shall be made by a fem,e covert, to such person or in such manner as the court shall direct for her benefit : (11 Geo. 4 & 1 WiU. 4, c. 65 s. 21.) MASTER. [gee Centkal Office.] MAYOR'S COURT. I. ENFORCING EXECUTION IN HIGH COUBT. II. EEMOVAL OF CAUSE. III. PROHIBITION TO. IV. APPEALS FROM [see Pabt II.] I. ENrORCING EXECUTION IN HIGH COURT. In every case where final judgment shall have been obtained in the- Mayor's Court, and also in every case where any rule or order shaU have been made by the court, whereby any sum of money, or any costs, charges, or expenses shall be payable to any person, any writ of execution upon such judgment, or any rule or order so made by the court, shall be- Mayor's Court — Merchant Shipjoiny Adi. 539' sealed by the sealer of writs of • any Division of the [High Court of Justice] upon a praecipe of the same being lodged with him, together with an affidavit verifying the judgment or order, and that the same reuiains unreversed and unsatisfied, and immediately thereupon such writ of execution and such judgment, ride, or order shall become and be of the same force, charge, and effect as a writ of execution or judgment recovered in or a rule or order made by [the High] Court, and all the reasonable costs and charges attendant upon such sealing shall b& recovered in like manner as if the same were part of such judgment, or rale or order : (20 & 21 Vict. c. clvii. s. 48.) II. REMOVAL OP CAUSE. No cause [is | removable from the court otherwise than by a writ of cerftiorari or on the order of a judge [of the High Court of Justice] : (20' A; 21 Vict. c. clvii. s. 52 ; and see Oebtiokabi.') No foreign attachment shall'be removed from the Mayor's Court at any time after the same shall be set down for trial except by the express order of one of the judges of the [High Court], and then upon such terms as to costs, bail, or payment of money into court as such judge, on summons, shall think fit, provided that a summons only, without any order of the- judge thereon, shall not stay the trial of the attachment in the Mayor's. Court : [Id,., s. 18.) No cause depending in the [Mayor's] court shall, before judgment be- recovered, be removable into [the High Court] (after plea pleaded), unless by leave of a judge of [the High Court] in cases which shall appear to such judge fit to be tried in [tiie High Court], and upon such terms, if any, as to payment of costs, giving security for debts and costs, or damages, or such other terms as he shall think fit, upon summons : [13,., s. 19.) No suit commenced on the equity side of the Mayor's Court shall be removed from out of the said court into [the Chancery Division] without the special order of [a judge of the Chancery Division] upon application for that purpose made, and no cause shall be so removed from out of the said equity side of the Mayor's Court if the judge to whom such application shall be made shall consider that the matter in question in the said suit is fit to be tried in the Mayor's Court : (Id., s. 20.) It is more convenient, instead of moving ex 'parte for a writ of certiorari, to move at once, on notice, for an order for the removal of the cause, and to ask besides that after removal the cause shall be prosecuted and the judgment therein carried into effect in the Chancery Division, as if the same had been originally made by the Chancery Division : (Seton, 330, 327.) ni. PROHIBITION TO. The Mayor's Court is a local court of limited jurisdiction, and subjcctr as such, to the controlling jurisdiction of the High Court of Justice - (Candy, 6.) As to when a prohibition may be granted, see Hawes v. Paveley, L. Rep. 1 C. P. Div. 418 ; 34 L. T. Rep. N. S. 836 ; 46 L. J. 18, C. P/; 24 "W. R. 895 ; Candy, 10-25.) The Mayor's Court has jurisdiction to entertain a counter-claim, though in respect of matter arising beyond its local jurisdiction, but its power to rive relief is limited to the amount claimed by the plaintiff ; (Davis v. Flaggtaff Sil/oer Mining Company .of Utah, L. Rep. 3 C. P. Div. 228 ; 38 L. T. Rep. N. S. 769 ; 47 L. J. 503, C. P. ; 26 W. R. 431.) [And see Pkohibition.] S40 Merchant Shipping Acts. IV. APPEALS FROM. [See Pabt II.] MEMBER OF PARLIAMENT. [See Aebest, III.] MERCHANT SHIPPING ACTS. I. SALE OP SHAHE OF UNQUALIFIED OWNER. II. PEOHIBITING TEANSFEE. III. LIMITING OWNEE'S LIABILITY. I. SALE OF SHARE OF UNQUALIFIED OWNER. Whenever any property in a ship or share in a ship becomes vested by -transmission on the death of any owner or on the marriage of any female owner in any person not qualified to be the owner of British ships, it shall be lawful, if such ship is registered in England for the [Chancery Division] upon an application made by or on behalf of such unqualified person, to order a sale to be made of the property so transmitted, and to direct the proceeds of such sale, after deducting the expenses thereof, to be paid to ihe person entitled under such transmission, or otherwise as the court may ■direct : (17 & 18 Yict. c. 104, s. 62.) Every such application .... for sale shall be made within four weeks .after the occurrence of the event on which such transmission has taken place, or within such further time as such court as aforesaid may allow, .such time not in any case to exceed the space of one year from the date of such occurrence as aforesaid; and in the event of no such application being made within such period as aforesaid, or of such court refusing to .accede thereto, the ship or share so transmitted shall thereupon be for- feited in manner [by the Act] directed with respect to interests acquired by unqualified owners in ships using a British flag and assuming the British character : {Id., s. 64.) It shall be in the discretion of . . . such court .... to make or refuse .any such order for sale, and to annex thereto any terms or conditions, and to require any evidence in support of such application it may think fit, and generally to act in the premises in such manner as the justice of the has ordered such service of an order for an interim injunction : {lownff V. Brassey, L. Hep. 1 Oh. Div. 277.) The application is by ex parte motion, supported by an affidavit : (Dan. 1442.) (9) Omission to Serve Necessary Persons. [See post, 8.] Motion. ,551 5. Affidavit of Seevicb. The affidavit must show when aucl to whom, and by whom, notice was fiven ; and mnst say " notice in writinff or words to that effect " : (Dan. 443.) It may be filed any time before the court rises : {Id.) There is nothing to prevent the court from allowing the service to be proved vwd voce : (see O. XXXVII., r. 2, and cited post ; and Cusdm v. Clapham, W. F., 1877, p. 90.) 6. Evidence on Motion. Upon any motion .... evidence may be given by affidavit; but the court or a judge may, on the application of either party, order the attend- ance for cross-examination of the person making: anv such affidavit: (O. XXXVIL, r. 2.) As to taking the evidence before an examiner or other persons, see Evidence, II., 2, 3. * Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which state- ments as to his belief, with the grounds thereof, may be admitted : (O. XXXYII., r. 3.) But if the motion, although interlocutory in form, finally decides the rights of the parties, evidence on information and belief is not admissible : (Gilbert v. GUbert;'L. Rep. 9 Ch. Div. 259; 39 L. T. Rep. N. S. 404; 27 W. R. 252.) The affidavit book at the Central Office should be searched, all from the date of the notice of motion up to the morning of the day on which the motion is to be made, for affidavits in opposition : (Dan. 1444.) If the motion is not made on the day named, notice to the opponent must be given of any further affidavits having been filed : (Dan. 1445.) Notice must be also given of the intention to read affidavits filed before the date of the notice of motion : (Dan. 1444.) Except under very special circumstances the court wiU not allow affidavits filed since the motion was opened to be read, but on a motion for an injunction any affidavits filed before a counsel addresses the court mOT' be read by him : (Dan. 1445.) If a party has given notice of his intention to read an affidavit, and afterwards declines to do so, the other party may read it : [Id.) 7. Heabing. When the notice of motion is clearly bad on the face of it, the parties served are not bound to appear, and if they do will not get their costs : {Daubney v. Shuttl&worth, L. Rep. I Ex. Div. 53 ; 34 L. T. Rep. N. S. 357 ; 45 L. J. 177, Ex. ; Brown v. Shaw, L. Rep. 1 Ex. Div. 425 ; 24 W. R. 321.) But if there is no jurisdiction the respondent may attend to inform the court of the absence of jurisdiction : {Great Northern Commiitteev. Inett, L. Rep. 2 Q. B. Div. 284 ; 46 L. J. 237, M. C. ; 25 W. R. 584.) Unless the motion has been set down the court calls upon counsel, in their order of seniority, to move : (Dan. 1444. If two counsel were called the same term, the one is senior who first entered his name as a student of an inn of court.) Each counsel has the right to make two opposed motions before the next is called on. If the court goes through the bar without exhausting the motions, the bar is again and again gone through till all motions are exhausted : (Dan. 1444.) 652 ' Motion. Counsel moving are heard in suppoii;, those opposing are then heard, and the senior moving counsel replies : (Dan. 1444, 1446.) " If an affidavit has been filed so recently that there is no time to answer it, the party if moving, should save his motion to another day; if opposing, should ask for leave that the motion stand over : (Dan. 1445.) 8. ADJOTJBIfMEirT. - The hearing of any motion or application may from time to time be adjourned upon such terms, if any, as the court or judge shall think fit : (O. Lin., r. 6.) If on the hearing of a motion or other application the cdurt or judge shall be of opinion that any person to whom notice has not been given ou^ht to have or to have had such notice, the court or judge may either dismiss the motion or application, or adjoura the hearing thereof, in order that such notice may bie given, upon such terms, if any, as the court or judge may think fit to impose : (O. LIII., r. 5 ; Purnell v. Greed Western Mauway Company, L. Bep. 1 Q. B. Div. 636.) IX. ORDER ON MOTION. 1. Dbavting up, &c. As to orders of course, see sup., VI. Am order on another motion is drawn up, passed, and entered like a judgment : [see Judgment.] There mnst be left with the registrar, counsel's brief, with his indorse- ment of the order made ; the notice of motion, if any, annexed, and ofSce copies of any affidavits, and any exhibits or other evidence used at the hearing of the motion : (Ch. Reg. March 15th, 1860, r. 31.) 2. Dischaeging, Amending, &c. As to setting aside an order made ex parte, see sup., VII. The court has jurisdiction to discharge an order made on an interlocu- tory application by consent when it is proved to have been made under a mistake, though that mistake was on one side only : (Mullins v. Howell, L. Rep. 11 Ch. Div. 763; 48 L. J. 679, Ch.) Where on motion for a mandatory injunction an order was made by consent pursuant to the terms of a previous agreement by which the defendant gave an undertaking to remove certain obstructions, and it appeared that the defendant had by mistake consented to a more extensive undertaking than he intended to do, the court refused to enforce that part of the undertaMng which had been given by mistake : (Id.) As to Amendment of orders, see Amendment ; Judgment, XVII. \ 3. Enpobcing. [See Execution ; Aebest.] X. COSTS. Where the notice of motion is bad, parties appearing will not get their costs : (Daubney v. Shuttleworth, L. Rep. 1 Ex. Div. 63 ; 34 L. T. Rep. N. S. 357 ; 46 L. J. 177, Ex.;. 24 W. R. 321.) A person served with notice ought not to appear simply to ask for his costs, but in one case, where no intimation not to attend or tender of 40s. costs had been made, Jessel, M.R. ordered the person appearing to be paid 40s. for his costs : (CampbellY. Solyland, L. Rep. 7 Oh. Div. 166 ; 47 L. J. 146, Ch.; 26 W. B. 109.) When notice of motion is given before the wrong court, that court has jurisdiction to award costs : (Yearsley v. Tearsley, 19 Beav. 1, frequently approved by Pry, J. ; and see sup. VIII., 7.) Where a party gives a notice of motion, and does not move accordingly. Motion — National Debt Act. 553 le shall pay to the other side, costs to be taxed by the taxing master, ■unless the court itself shall direct, upon production of the notice of motion, what sum shall be paid for costs : (0. O. 40, r. 23.) The above rule, thovigh repealed, must stiE'be looked to as a guide: (See •observations of BramweE, L.J. in Myers v. Defries, L. Rep. 5 Ex. Div. 180; 42 L. T. Rep. N. S. 137 ; 49 L. J. 266, Ex. ; 28 W. R. 406.) Where a notice of motion has been given, and the parties giving the notice do not appfear, the court will, as a general rule, order them to pay the costs of the parties appearing to show cause : {Berry v. Exchange Trading Company, L. Rep. 1 Q. B. Div. 77 ; 45 L. J. 224, Q.B.) ' See sQso Costs, sup. 226, 227 ; Seton, 58. When the motion is ordered to stand over to the hearing of the cause, and the order omits to provide for the costs, costs should be specially asked for at the hearing. But if this is not done the court may by a subsequent order provide for the costs : (Fritz v. Hobson, L. Rep. 14 Ch. Div. 542 ; 42 L. T. Rep. N. S. 677 ; 28 W. R. 722.) MULTIPLICITY. [See Equitable Rules.] MUNICIPAL CORPORATIONS ACT. [See Chabities.] NATIONAL DEBT ACT. I. FIRST CLAIMANT'S APPLICATION FOE TEANSPEE. 1.- Petition. 2. Sbevice. 3. Evidence. 4. Obdeb. 5. Costs. 6. Notice or Teansfeb. n. SUBSEQUENT CLAIMS. III. EESCINDING OEDEES. I. FIRST CLAIMANT'S APPLICATION FOR TRANSFER. 1. Petition. In case the governor or deputy governor' [of the Bank of England] is not satisfied of the right of any person claiming to be entitled to any stock or dividends [transferred to the National Debt Commissioners] the claimant may, by petition in a summaiy way, state and verify his claim to the [Chancery Division] (33 & 34 Vict. c. 71,' s. 65.) "As to ascertaining the amount of the stock, see Be Stapleton, W. N. 1872, p. 185. The same procedure applies in the case of dividends unclaimed for ten years, certificates in respect of which no coupon has been presented for ten years, unclaimed terminable annuities, stocks and dividends transferred or paid to the commissioners under former Acts r (ss. 61, 62, 67, 68.) But interest by accumulation of dividends does not belong to the claimant : (.Be Ashmead's Trusts, L. Rep. 8 Ch. App. 113.) 654- National Debt ^et. 2. Sebvice. The petition shall be served on Her Majesty's Attorney-General and on. the National Debt Commissioners : {Id.) When the stock is standing in the name of the trustees, they, or their legal personal representatives, and also the beneficiaries are necessary parties : {Be Ash/mead's Trusts, sup.) 3. Btidence. Ordinarily it is sufficient for the claimant to make out his legal title, but if the dividends have not been claimed for many years, an inquiry will be directed as to the person entitled to the stock : (Dan. 1916.) 4. Obdeb. The court shall make such order thereon -(either for transfer of the stock to which the petition relates, and payment of the dividends accrued thereon, or otherwise), and touching the costs of the application, as to the court seems just : (s. 55.) AU costs and expenses incurred by or on behalf of the Attorney- General, or the National Debt Commissioners, Ln resisting or appearing on any such petition, if not ordered by the court to be paid out of the stock and dividends thereby claimed, shm be paid by the National Debt Com- missioners out of unclaimed dividends : {Id.) When the title is quite clear, the order is at once made without directing a previous inquiry, but when there are contending claimants no order will be made on petition : (Dan. 1916.) When it is to be dealt with in a cause, the order directs the fund to be transferred to the petitioner, he undertaking to transfer it to the credit of the cause : {Rushworth v. Walden, 18 W. B. 204, cited Dan. 1916.) 5. Costs. The practice is now; to direct payment of the costs of the Attorney- General and commissioners as between" party and party, and upon suck payinent the retransfer to be made : (Seton, 1514.) 6. Notice of Teanspbr. Where any retransfer or payment is made to any such claimant, either with or without the authority of the court, the Bank of England .... shall give notice thereof to the National Debt Commissioners within threfr days after making the same : (s. 55.) Stock exceeding the sum of 20J. shall not be retransferred from the National Debt Commissioners under this part of [the] Act, nor shall dividends exceeding 20Z. in the whole be paid to a claimant under this part of [the] Act, until three months after application made for the same, nor- until public notice has been given thereof : (s. 56.) The Bank of England .... shall Tequire the applicant to give such public notice as they think fit by advertisements .... in one or more newspapers circulating in London and elsewhere : (s. 57.) Every such notice shall state the name, residence, and description of the person in whose name the stock stood when transferred to'the National Debt Commissioners, the amount thereof, the name of the claimant, and the time at which the retransfer thereof and payment of dividends will be made if no other claimant sooner appears and makes out his claim : (s. 57.) Where any such retransfer or payment is ordered by the [Chancery Division] the notice shall also state the purport of the order : (s. 57.) II. SUBSEQUENT CLAIMS. Where any stock or dividends having been retransferred or paid aa aforesaid to a claimant by j[the] bank is or are afterwards claimed bjr National Debt Act — New Trial. 555' another person, the bajik and their oflScers shall not be responsible for the- same to such other claimant, but he may have recourse against the person to whom the retransfer or payment was made : (s. 59.) Provided, that if in any case a new claimant establishes his title to any stock or dividends retransferred or paid to a former claimant, and is. unable to obtain transfer or payment thereof from the former claimant, the [Chancery Division] shall, on application by petition by the new claimant, verified as the court requires, order the National Debt Com- missioners to transfer to him such sum in stock, and to pay to him such sum in money for dividend as the court thinks just : (s. 60.) Such transfer shall be made from stock transferred to the National Debt Commissioners under this part of [the] Act ; and such money for- dividend shall be paid from dividends received by those Commissioners on stock so transferred, or the accumulations thereof, or from the sale of stock purchased with such dividends or accumulations, or from other- money at their disposal ; (s. 60») III. RESCINDING ORDERS. At any time before retransfer of stock or payment of dividend as. aforesaid to a claimant, any person may apply to the [Chancery Division] by motion or petition, to rescind or vary any order made for re-transfer or- payment thei-eof : (s. 50.) NE EXEAT REGNO. [See Aebbst, II., 2.] NEW TRIAL. I. GEOUNDS FOE GEANTING. n. IN WHAT COUET OEDEE OBTAINED. 1. Action tbied in the Chancebt Division. 2. Action tbied befobe Judge only of Another Division. 3. Action tbied befobe Judge and Jubt. 4. Issue tbied befobe Judge and Jubt. 5. Action eemitted fob Teiai. in County Couet. III. APPLICATION, 1. How MADE. 2. When made. (a) After Trial before Judge cmd Jury. (b) After Trial before Judge alone. (c) After Trial in County CouH (19 ^ 20 Yict. c. 103. s. 26). IV. OEDEE TO SHOW CAUSE. 1. Seevice. 2. Effect. V. POWEES OF COUET. VI. APPEAL. 1. Peom Geanting ob Ebfusing New Teial. 2. Geanting New Teial on Obdinabt Appeal. VII. COSTS. I. GROUNDS FOR GRANTING. The grounds are : 1. Admission, by the judge at the trial, of improper evidence ; .556 ' New Trial. 2. Rejection, by the judge at the trial, of evidence which ought to have been admitted ; 3. The improper nonsuiting of the plaintiff ; 4. Misdirection of the jury ; 5. Perverse verdict or verdict against the weight of evidence ; 6. Verdict for too smaR or too great damages; 7. Surprise : (Oh. Arch., 13th edit., 1210, ei seq.) , A new tnal will not be granted for evidence prematurely admitted, but which became admissible in the course of a trial : (Faund v. Wallace, 35 L. T. Rep. N. S. 361.) A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, unless in the opinion of the court to which the application is made some substantial wrong or aniscarriage has been thereby occasioned in the trial of the action ; and if it appear to such court that such wrong or miscarriage affects, part only -of the matter in controversy, the court may give final judgment as to part thereof, and direct a new trial as to the other part only: (0. XXXIX., r.'3.) It is for the party showing cause against a rule for a new trial to show -that there has been no failure of justice, and he must show it on authentic .evidence : (Anthony v. Halstead, 37 L. T. Rep. N. S. 433.) As to what amounts to a substantial wrong, &c., see Pickup v. Thames Insurance Company, L. Rep. 3 Q. B. Div. 594 ; 26 W. R. 477 ; Swift v. Nurni, W. N., 1878, p. 217. A new trial will not be granted on the ground that the verdict is against ■the weight of evidence, when the damages are under 20J. ; {Booth v. Briscoe, L. Rep. 2 Q. B. Div. 496 ; 25 W. R. 838.) If it appeajr that a jury must have omitted to take into account any proper head of damages, and that the verdict is, under the circumstances, unreasonably small,- it is competent to a court to order a new trial at the instance of the plaintiff, although there be no misdirection by the judge, nor mistake or misconduct on the part of the jury : (Phillips v. The .Souih-Western Railway Company, L. Rep. 5 Q. B. Div. 78; 41 L. T. Rep. N. S. 211 ; L. Rep. 6 C. P. Div. 280 ; 42 L. T. Rep. N. S. 6 ; 49 L. J. 233, 0. P.) II. IN WHAT COURT ORDER OBTAINED. 1. Action Tbied in the Chanceky Division. Where an action commenced in the Chancery Division is tried there, •and the judge finds on the factsaud reserves judgment ; O. XXXIX,, r. 1 (cited ^osf, 3) does not apply, but the party dissatisfied with the verdict or .finding must appeal therefrom to the Court of Appeal within twenty-one "days, as in the case of an interlocutory order : (Krehl v. Burrell, L. Rep. 10 Ch. Div. 420 ; 38 L. T. Rep. N. S. 407 ; 48 L. J. 252, Ch. ; 27 W. R. 234.) And in all actions in the Chancery Division, where there arg distinct ■questions of fact in dispute between the parties to be tried by a judge .alone, judges should try such questions as questions the findmgs upon which are separate from the judgment to be pronounced upon them, so as to necessitate an appeal within twenty-one days : (Id.) Where definite issues of fact are settled — ^that is, distinctly announced — ^before the trial begins, the judgment must be appealed from within "twenty-one days, whether the judge delivers his finding or verdict on the facts on a day prior to the judgment on the whole case, or whether hoth are given at the same time : (Id. ; Lowe v. Lowe, L. Rep. 10 Ch. Div. 432 ; 40 L. T. Rep. N. S. 236 ; 48 L. J. 361, Ch. ; 27 W. R. 309.) New Trial. 557" The issue need not be formal: (per Cotton, L.J., Potter v. Cotton.. L. Rep. 5 Ex. Dir. 137 ; 41 L. T. Rep. N. S. 460; 49 L. J. 158, Ex. ; 28- W. R. 160.) But this rule does not apply where the judge merely commences his. judgment by saying that he has to decide a question of fact : {Id.) In such case, and in all others where the issues of fact are not settled before trial, an appeal lies from the judgment both on facts and law at any time within a year : (Id. ; see also Dolhnan v. Jones, L. Rep. 12 Ch.. Div. 653 ; 41 L. T. Rep. N. S. 258 ; 27 W.. R. 877.) If upon the hearing of an appeal from a judgment .... of a judge without a jury it shall appear to the Court of Appeal that a new trial ought to be had, it shall be lawful for the said Court of Appeal, if it shall think fit, to order that the verdict and judgment shall be set aside, and that a new trial shall be had : (O. LVIII., r. 5a, March, 1879 ; and see Appeal.) 2. Action tbied before a Judge only op another Division. When the trial has been by a judge without a jury, the application for a new trial shall be to the Court of Appeal : (O. XXXIX., r. 1, Dec, 1876, repealing O. XXXIX., r. 1.) The rule applies only to actions tried in the Queen's Bench, Common Pleas, or Exchequer Divisions, aud not to trials by a judge of actions commenced in the Chancery Division and there tried : (see sup. 1.) The rule applies if notice of trial with a jury has been given, but the jury are discharged : (Metropolitan Bank v. Eevron, W. N. 1880, p. 132.) And it would apply to a Chancery Division action sent for' trial by a jury, if the jury were discharged by consent, and the judge would try the action. The application must be to the Court of Appeal, whether the ground if surprise, that the judge has misdirected himself as to the law, that hit findings ai-e against the weight of evidence, or almost any other ground : (Oasiler v. H&nderson, L. Rep. 2 Q. B. Div. 575 ; 37 L. T. Rep. N. S. 22 ; 46 L. J. 607, Q. B. ; Potter v. Cotton, sup.) But where the judge has wrongly rejected evidence, the motion is for a new trial: (Metropolitan Inner Circle Company y. Metropolitan Railway, W. N. 1880, p. 134.) Apparently the time for appealing, twenty-one days or one year, depends on the same circumstances as in the case of a trial by a judge in the Chancery Division : (see judgment of Cotton, L.J., in Jon^s v. Hough, L. Rep. 5 Ex. Div. 115; 42 L. T. Rep. N. S. 108 ; 49 L. J. 211, Q. B.) If there is any difPerence, it is that in the common law trials all appeals must be brought within twenty-one days: (see judgment of "Hiesiger, L.J., in Krehl v. Burrell, sup.) It is unnecessary to move the Court of Appeal for a new trial as well, but whether this has been done or not, if the judge below has upon the materials before him come to an erroneous conclusion as to facts, the Court of Appeal has the same jurisdiction which he had, aud may find the facts and give a proper judgment, awarding damages or otherwise ; or, as when the matter turns upon the credibility of witnesses whom the judge below has seen, order a new trial : (Jones v. Hough, sup. ; and see 0. LVin., r. 5a, March, 1879, sup. 1.) 3. Action tried before Judge and Jury. Where in an action in the Queen's Bench, Common Pleas, or Exchequer- Division there has been a trial by a jury, any application for a new trial •558 New Trial. shall be to a divisional court: (O. XXXIX., r. 1, Dec, 1876, repealing O. XXXIX., r. 1.) When an action, com^menced in the Chancery Division, has been tried hj a jury before one of the judges of a common law division it is thence- iforth transferred to the division to which the judge belongs, and an application for a new trial must therefore be made to a divisional court of that division : {Hunt v. City of London Beal Property Company, L. Rep. 3 Q. B. Div. 19 ; 37 L. T. Rep. N. S. 344 ; 47 L. J. 51, Oh. ; 26 W. B. .37 ; Jones v. Baxter, L. Rep. 5 Ex. Div. 275 ; 28 W. R. 817.) A motion to a divisional court for a new trial has been held to be proper in the following cases : Where a judge directs a jury that on the undisputed facts they ought to find a verdict for one of the parties, and a verdict is accordingly entered for that party, and judgment given thereon : {Yetts v. Foster, L. Rep. 3 0. P. Div. 437 ; 38 L. T. Rep. N. S. 742 ; 26 W. R. 745.) Where the judge is asked to nonsuit the plaintiffs, or to direct a finding for the defendants upon the ground that no evidence has been given in support of the plaintiff's case ; but refuses to do so, and' the jury find the issues left to them in favour of .the plaintiffs, and the judge directs judgment to be entered for the pkintiffis, aud states his reasons for holding that there was evidence in support of the finding of the jury : (Davies v. Felix, L. Rep. 4 Ex. Div. 32 ; «9 L. T. Rep. N. S. 322 ; 48 L. J. 3, Ex. ; 27 W. R. 108.) Where in an action tried by a jury the judge has given judgment for one party on the findings of the jury : {Hamilton and Co. v. Johnson and Co., L. Rep. 5 Q. B. Div. 263; 41 L. T. Rep. N. S. 461 ; 49 L. J. 155, Q. B. ; 28 W. R. 879.) Where at the close of the plaintiff's case the judge holds that the evidence is not sufficient to maintaiu the action, and nonsuits the plaintiff : [Mty v. Wilson, L. Rep. 3 Ex. Div. 359 ; 39 L. T. Rep. N. S. 83 ; 47 L. J. 664, Q. B. ; 27 W. R. 160.) 4. ISSTJE TfMBD BBPOEE JlTDGE AND JtJBY. Where an issue has been directed by a judge of the Ohajuoery Division, the action remains attached to the Chancery Division : {Jones v. Baxter, L. Rep. 5 Ex. Div. 275 ; 28 W. R. 817) ; and an application for a new trial must be made to the judge who directed the issue to be tried: >{JenUns V. Morris, L.Rep. 14 Ch. Div. 674; 42 L. T. Rep. N. S. 817; 49 L. J. 392, Ch. ; and Williams v. Guest, there cited.) 6. Action Remitted foe Triai in CorNir Cotiet. Where an action has been remitted, under 19 & 20 Vict. c. 108, s. 26, for trial in a County Court, the application for a new trial must be made to the division of the High Court which remitted the action {Balmforth v. Uledge, L. Rep. 1 Q. B. 427 ; London v. Boffey, L. Rep. 3 Q. B. Div. 6 ; 47 li. J'. 16, Q. B. ; 26 W. R. 79 : Dunn. v. Pea/rson, W. N. 1878, p. 82) ; and not to the Court of Appeal : {Bavis v. Godbehere, L. Rep. 4 Ex. Div. :215 ; 40 L. T. Rep. N. S. 358; 48 L. J. 441, Ex. ; 27 W: R. 485.) III. APPLICATION. 1. Hov7 Made. [Where not made to the Court of Appeal] applications for new trials ;shall be by motion calling on the opposite party to show cause at the exj)iration of , eight days from the date of the order, or so soon after as the case can be heard, why a new trial should not be directed : i(0. XXXIX., r. lA, March, 1879.) New Trial. 559 When the application is by way of appeal to the Court of Appeal, the application is made as in other appeals : (see sup. II., 1, 2 ; AppeaIi.) 2. When Made. (a) After Trial before Judge and Jury. Such motion shall be made within the times following, unless the court or a judge shall enlarge the time : — An application to a divisional court for a new trial, if the trial has taken place in London or Westminster, shall be made within four days after the "trial, or ou the first subsequent day on which a divisional court to which the application may be made shall have actually sat to hear motions. If "the trial has taken place elsewhere than in London or Middlesex, the motion shall be made within seven days after the last day of sitting on the circuits for England and Wales during which the action shall have been tried; or withm the first four days of the next following sittings, if such dav" occurs during or within a week immediately before a vacation : (0. XXXIX., r. lA, March, 1899.) The time begins to run from ibhe discharge of the jury: [Shaw v. Bope, 25 W.n. 729.) The party is not bound to move before the fourth day, although a divisional court is sitting on the three first of the four days, and not on the fourth ; and in such a case may move on the next day, after expiration of four days, on which a divisional court sits : {Grant v. Solland, W. N. 1880, p. 156.) Sunday is not one of the four days : (Id.) As to cases tried at Winter Assizes, see Beaucher v. London and Chatham Railway Company, W. N., 1879, p. 40. (6) After Trial before Judge alone [see sup. II., 1, 2]. (c) After Trial in County Court (19 & 20 Vict. c. 108, s. 26). In this case the rules of the Supreme Court as to time does not apply (London v. Boffey, and other cases, cited sup. II., 5) ; but the application must be made within the time provided by the former practice (see County Courts, n.) IV. ORDER TO SHOW CAUSE. 1. Sebvicb. A copy of such order [to show cause] shall be served on the opposite party within four days'' from the time of the same being made (O. XXXIX. r. 2.) 2. Effect. An order to show cause shall be a stay of proceedings in the action, unless the court shall order that it shall not be so as to the whole or any part of the action : (O. XXXIX., r. 6.) It has been held that when a divisional court has refused an order nisi, and on appeal the Court of Appeal has granted the rule, the case is not governed by this rule, but by O. LVIII. r. 16 [see Appeal], and that the Court of Appeal cannot order that proceedings shall be stayed (Ooddard v. Thompson, 38 L. T. Rep. N. S. 166; 47 L. . J. 382, Q. B.; 26 W. R. 362.) ; but the court below ought in a proper case to stay proceedings, and the Court of Appeal has " power to make any order which ought to have been made, saoA to make such further or other order, as the case may require : " (O. "LVIII. r. 6.) V. POWERS OF COURT.' A new trial may be ordered on any, question in an actioii whatever be 560 New Trial. tlie grounds for the new trial, without interfering with the finding or- decision upon any other question : (0. XXXIX., r. 4.) [When through] misdirection or the improper admission or rejection of evidence .... some substantial wrong or miscarriage has been occasioned in the trial of the action ; and it [appears] to that court that such wrong or miscarriage afEects part only of the matter in controversy, the court may give final judgment as to part thereof, and direct a new trial as to the other part only : (O. XXXIX. r. 3). Where there are several distinct issues to be tried in one action, it is competent to the judge, in his discretion, and without the consent of the pai^ties, to -accept the verdict of the jury upon those issues on which they are able to agree, and discharge them upon the others -without invalidating- the trial, leaving the parties, if they think fit, to take 'down the undecided issues to a new trial ; and the court -wiU give judgment on the decided issues, and has power, if asked, to send down the undecided issues to a new trial : [Marsh v. Isaacs, 45 L. J. 505, O.P.) Upon a motion .... for a new trial, the colirt may, if satisfied that it 'has before it all the materials necessary for finally determining the- questions in dispute, or any of them, or for awarding any relief sought, gfive judgment accordingly, or may, if it shall be of opinion that it has- not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be- taken and made as it may think fit : (O. XL., r. 10.) The rule stUI applies, notwithstanding the rules of December, 1876 : {Baun V. Simmins, 40 L. T. Rep. BT. S. 556 ; 48 L. J. 343, C. P. ; affirmed 41 L. T.Eep. N. S. 783 ; W. N. 1879, p. 178.) Judgment will be entered where no additional facts remain to be proved, and no jury would be justified in finding a contrary verdict on the facts proved : [Yorhshire Banking Company v. Beatson, L. Rep> 5 C. P. Div. 109; 42 L. T. Rep. N. S. 455; 49 L. J. 380, 0. P.; 28 W. R. 879.) The rule as to entering judgment was not intended to put the court into the place of the jury: (Brewster v. Durrand, W. N. 1880, p. 27); and the court cannot give judgment where it -wiH have the effect of with- drawing from the jury a question properly determinable by them only ; as whether a report said to be a libel was a fair report : [Milissieh v. Lloyd's, W. ST. 1877, p. 36.) And judgment cannot be entered where, if a new trial is ordered, fresh e-vddence may be adduced) Clark v. Molyneux, L. Rep. 3 Q. B. Div. 237 ; 37 L. T. Rep. N. S. 694; 47 L. J. 230, Q. B. ; 26 W. R. 104), or the facts may be found differently : {Pahner v. Fitz-Wygram, W. N- 1880, p. 26.) It is unnecessary to give notice of appeal in order to obtain the judg- ment: (Waddell v. Blookey, L. Rep. 10 Oh. Div. 416; 40 L. T. Rep. N. S. 286; 27W. R. 233.) See also, as to entering judgment, Anderson v. Pellier (W. N. 1879, p. 212.) When a new trial is granted at the instance of one of several defendants it must be granted against all the other defendants : {Purnell v. Great Western Railway Company, L. Rep. 1 Q. B. Div. 636 ; 34 L. T. Rep. N. S. 822 ; 45 L. J. 687, Q. B. ; 24 W. R. 909.) VI. APPEAL. 1. Feom Geanting or Reftjsim-g Ne-w Trial. An appeal lies to the Court of Appeal from the granting or refusing of New Trial — Next Friend. 561 a new trial, either by a Chancery Di-rision judge of an issue, or by a divisional court of an action : {Jenhms v. Morris, L. Rep. 14 Ch. Div. 674; 42 L. T. Eep. N. S. 817; 49 L. J. 392, Ch.; Purnell v. Great Western Railway Convpany, sv^.) And the Court of Appeal may bring before it a party not moved against in the court below : {Purnell t. Great Western Railway Compamy, swp.) 2. Granting New Teiai on Obdinabt Appeal. See Order LVIII., r. 5a, March, 1879 ; Appeals, VI., 11. The court grants a four day order to show cause : {Purnell v. Great Western Railway Com/pany, sup.) Where, after a finding for the plaintiff by the jury, the judge held that the finding could not be supported, and entered judgment for the defen- dants, on appeal, the Court of Appeal held that the judge was not justified in disregardmg the finding, and ordered a new trial : {Perleins v. Danger- field, W. N. 1879, p. 172.) Where by agreement the jurj is discharged, and the case submitted to the decision of the judge, on a motion for a new trial it is competent for the judge to explain to the court the reasons for his finding : {Chatterton T. Cave, L. Rep. 3 App. Cas. 488 ; 38 L. T. Rep. N. S. 347 ; 47 L. J. 545, C.P.; 26W. R.498.) The reasons in the above case were explained to the divisional court to which the application then had to be made. The application would now he to the Court of Appeal. Vn. COSTS. Where a nonsuit is directed, or a verdict obtained, and afterwards anew trial being ordered, the party worsted in the former trial gets a verdict ; unless the party is deprived of costs by the judge, the costs of both trials will follow the event : {Crem v. Wright, L. Eep. 2 C. P. Div. 354 ; 36 L. T. Rep. N. S. 855; 46 L. J. 427, 0. P.; 25, W. E. 502; FieUv. Great Northern Railway Company, L. Rep. 8 Ex. Div. 261 ; 39 L. T. Rep. N. S. 80; 26W. R. 817.) Where the plaintiff, although successftd on all issues in the first trial, is successful in some only in the second trial, the defendant getting a verdict on the other issues, the word " event " in O. LV., r. 1 (Costs) is read distributively : {Myers v. Befries, L. Rep. 5 Ex. Div. 180 ; 42 L. T. Rep. N. S. 137 ; 49 L. J. 266, Ex. ; 28 W. R. 406.) Where in an action to recover a sum of 85L, and also a sum of 6s., the plaintiff was nonsuited, and a new trial having been ordered, at the second trial, which took place before a jury, he. failed as to his claim for 85Z., but proved his claim for 6s., it was held, on appeal, that the judge was right in ordering that the plaintifE should pay the cost of both trials : {Harris V. Petherich, L. Rep. 4 Q. B. Div. 611 ; 41 L. T. Rep. N. S. 146.) NEW TRUSTEES. [See Tktjstees.] NEXT FRIEND. [See Parties; Costs.] o o 562 Nonsuit — Orders. NONSUIT. [See Judgment; New Teial.J NOTICES. All notices required by the rules shall be in writing, unless expressly authorised by a court or judge to be giyen orally : (0. LVI., r. 1, as explained by 0. LXIII., r. 2, April, 1880. See Intebpbetation.) Service of writs, notices, petitions, orders, summonses, warrants, and other documents, proceedings, and written communications,- when not required to be personal, may be made by leaving the same at the solicitor's address endorsed on the documents in the cause, or, in case of a plaintiff suing in person, at his place of residence or address for service, as the case may be : (see O. lY., rr. 1, 2 ; C. O. 3 ; MOTION, Judgment ; Wbit of Summons.) As to the time for serving notice, see Time. As to notice of writ, see Wbit ov Summons ; of appearance, see Appeaeance ; to third parties, see Pleading ; of entering demurrer, see Pleading ; of motion, see Motion, Judgment ; of judgment, see Judgment, Pabtition ; for jury, see Tkial ; of trial, see Teial, Dismissing Action ; to inspect or produce documents, see Discoveet, Evidence ; to produce witness for cross-examination, see Evidence. OATHS. [See Evidence.] OFFICE COPIES. [See Copies; Evidence.] OFFICES. [See Centbal Office; Sittings; Time.] ORDERS. A general form of order is given in Sched. H. 2 to the Rules of April, 1880. Clerical mistakes in ... . orders, or errors arising therein from any accidental slip or omission may at any time be corrected by the court or a judge on motion without an appeal : (O. XLlA, Dec. 1879 ; Fritz v. Eohson, L. Rep. 14 Ch. Div. 542; 42 L. T. Rep. N. S. 677; 28 W. R. 722 ; and see Amendment, Judgment.) Where an order is made by consent, such consent may be withdrawn at any time before the order is passed and entered (Per Jessel, M.R., Rogers v. Sorn, 26 W. R. 432) ; but in Williams v. Medkin (Court of Appeal, June 11, 1880) it was stated by counsel that the Master of the RoUs had said that the report of Rogers v. Sorn was incorrect. Per Orders — Parties. 563 James, L.J., the passing and entering are only machinery: {Williams v. Meakin, sup. ; and see Compbomise.) . As to drawing up, entering, and passing orders, see Judgmbnt Motion, Petition ; as to orders of cause, see Motion, Petition : [see also Appeal, Arrest, Costs, Execution, Injunction, Interlo- ctjtokt Proceedings, Parties, Pleadings, &c.] PALATINE COURT. [See Jurisdiction; Judgment, XXV-l PARLIAMENTARY BILL. A summons to proceed on the order is taken out. On the return of the summons the draft bill is directed to be brought in, and proceedings are adjourned. At the adjournment the draft is settled with the aesistance of conveyancing counsel when required [see Conveyancing Counsel]. A memorandum is signed in the margin of the finally settled draft by the chief clerk. The chief clerk makes his certificate [see Chambers]. The draft bill is printed. An affidavit verifying a printed copy is filed. Draft bin, office copies, affidavit, and printed copy are left at chambers, and the chief clerk procures the judge's signature, in the presence of the witness intended for committee : (Dan. 1187-8.) PARLIAMENTARY DEPOSITS. [See Companies, XI. ; Payment into and out op Court]. PARTICULARS. Of Pleading. [See Pleading.] Of Sale. [See Property.] PARTIES. PLAINTIFFS. 1. MEANrwa OF "Plaintiff." 2. Genbkai Etjles as to joining ail Persons entitled to Relief. 3. Person Suinq on behalf of himself and others. 4. Trustees. 5. Executors. 6. Administrators. O O 2 564 Parties. (a) OrHAnwry. (6) Ad Utem. (c) Pendente Ute. (d) Dwa/nte dbsenMA. (e) Appointmemt of, by Cowrt [see sap., 5J. 7. Leoatheb. 8. Next or Kin. 9. Pbbbons inteeested in Pboceedb op Eealtt. 10. Bebibuaby Devisees. 11. Heibs. 12. Cbbtuib que tbtistbnt. 13. Class. 14. Mabbied Wokan. (a) Swing in her own na/me alone. (1) By Leave. (2) Where Judicially Separated. (3) With Protection Order. (4) Having Separate Estate. (5) Svimg vdfh Busband as Co-plainUff. (c) Swmg by Next Friend. 15. Infants. (0) How they Sue. (6) Where they ma/y Sue. (c) Next Friend. (1) Who may be. (2) Written Authority. (3) Liability to Costs. (4) Betiring. (5) Bemoval. (6) Appointment of new Next Friend. (7) Service and Entry of Order, (cf) Mahing Infamt Oo^plwintiff or Defendwnt. (e) Effect of Infa/nt attaining Majority. 16. Lunatics (so found). 17. Lunatics (not so pound). 18. Pabtnebs. 19. cobpobations, companies, and societies. (a) Generally. (b) Sole Corporation. (c) Foreign Corporation. (d) Compam/y under 7 WiU, 4^1 Vict. c. 73. (e) Compamy wnder Acts of 1862 cmd 1867. (/) Ba/iMng Co'mpaniea. (g) Bmldvng Societies. Qi) Friendly Societies.. (i) Industrial and Provident Societies. (Tc) Trade Unions. (1) Treasmy Solicitor [see post, VI., 4, (i)]. 20. Paupees. (a) Who may Sue as. (2i) AppUcaOon. (c) Evidence. (d) Order. (e) Effect of Order, if) Costs. (?) r 21. Convicts. 22. The Queen's Attoenet-Genebad. 23. The Attoenet-Genebai. op the Queen Conbobt. Parties. 565 24. The Attobnet-Genbeaii of the Pbinoe of Wales. 25. FoEEiGN Governments. 26. Banebufts. n. DEFENDANTS. 1. Mbanino or "Defendant." 2. General Bttles as to joininq all Persons liable. 3. Person Sited on behalf of Himself and Others. 4. Trustees. 5. exeoutobs. 6. Administbatobs. 7. Legatees. 8. Next of Kin. 9. Persons interested in Pboceeds of Realty. 10. Eesiduabt Devisees. 11. Heirs. 12. Cestuis que trustent. 13. Glass. 14. Married Woman. (a) Sited in her own Name alone. (1) By Leave. (2) Where Husband Plaintiff. (3) When Husband under Disability. (4) In case of Separation or Protection Order. (b) Sued with Susbamd as Oo-defendwnt. ^ (c) Stted with Trustee of Separate Property. 15. Infants. (a) To Defend by GhtarMan. (b) Who Appointed Chiwrdian. (c) How Chiardiwn Appointed, (1) On Defendant's Applieation. (2) On Plaintiff's Application. (3) After Service of Notice of Judgment. {d) Duties of Quardia/n. (c) Removal of Qua/rdAan. 16. Lunatics (so found). 17. Lunatics (not so found). (a) To Defend by QuardMi/n. (b) Appean'am.ce. (c) Who Appointed Ch/m/rdiwn, (d) How Oua/rd/iam Appointed. (1) On Defendant's Application. (2) On Plaintiff's Application. (3) After Service of Notice of Judgment. (e) Filing Order. (/) Duties of QviO/rdAcM. (?) Disehargmg Order for Qua/rdAa/n. 18. Partnbbs. 19. Corporations, Companies, and Societies. (o) Oeneralh). (b) Sole Corporation. (a) CompamAj wilder 7 Will. 4^1 Vict. c. 73. (d) Bank of England. (e) Compamy imder Acts of 1862 and 1867. (/) Bamhrng Compamy. (g) BwildAng Societies. (h) Friendly Societies. (i) Industrial and Provident Societies. (k) Trades Unions. \l) Treasury SoUeitor [nee post, VI., 4, (i)]. 566 Parties. 20. Paupeb. 21. CoNViOT [see sup., I., 21]. 22. The Queen's ATTOsNET-OENEBATi. 23. Tee Qtteen Consobt's Attobnet-Genebal. 24. The Fbikoe op WaijEs' Attobnet-Genebal. 25. fobeisn qoyebnuentb and aubabsasobs. 26. Landlobd OBTAiNina Leave to Defend. rn. THIRD PARTIES. IV. EFFECT OF MISJOINDER. V. ADDING, SUBSTITUTING, AND STRIKING OUT. 1. AdDINS and SuBSTITtrriNG. (a) General Rule, (h) Plaintiffs, (1) Examples under General Rule. (2) In case of Mistake. (3) Legatees, Sue., sning withont joining other persons entitled. (4) Consent of Plaintiff. (5) When and How Application made. (1) Examples under General Rnles. (2) Legatees, &c., sning withont joining other persons entitled [see ewp. (6), (3).] (3) When and How Application made [see sup. (6), (S).] (4) Service of Writ or Notice. (5) Delivery of Amended Statement of Claim. 2. Stbikino out. (o) Oeneral Power. (b) By Whom Application made. (c) When a/nd Sow Application made. (d) Effed of Order. VI. CHANGE OF PARTIES. 1. Explanation of Tebms. (a) Ahatement. (b) Defect. (c) Action. (cJ) Swrvvue or Contirvue. 2. CHANaBS OF Paeties in Chancebt Division ob Couet OF Appeal. (a) Effect of Changes. (1) By Marriage. (2) By Death. (3) By Bankruptcy. (4) By Assignment of Estate or Title. (5) By Creation or Devolution of Estate or Title. (6) By Lunacy, so Found by Inquisition. (7) By Outlawry. (i) Order Necessary on Change. (1) How obta^ed. (2) Service of, and Appearance to. (3) How Discharged. (c) ProceedAngs not affected ly Change. 3. Changes of Paeties on Appeal to the House of Lobds. (a) Effect of Change, (b) Order necessary. (1) Before Appeal to the House brought. (2) After Appeal to the House brought. Parties. 567 4. Special Enactments. (o) Bwiik/mg OompamAes. (i) Bankrupityy Trustees. (c) BuildAng Sodeties. ((J) Oompames. (e) Costs. (/) Friendly Societies, (g) Industrial Societies, (h) Trade Unions, (i) Treasury SoUdtor. I. PLABSTTIPFS. 1. Meaning of "Plaintiff." The provisions of the 100th section of the [Judicature Act, 1873] shall apply to these rules (0. LXIII.) By the 100th section, in the construction of [the] Act, unless there is anything in the subject or context repugnant thereto . . . . " plaintiff " shall include every person asking any relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether thfe same be taken by action, suit, petition, motion, summons, or otherwise. 2. General Rttlb as to Joining all Persons Entitled to Relief. All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuo- cessfnl, shall be entitled to his costs occasioned by so joining any person or persons who shall not be found entitled to relief .unless the court in disposing of the costs of the action shall otherwise direct : (0. XVI., r. 8.) Although the injury to each of several persons has been several, they may sue jointly : (Booth v. Briscoe, 25 W. R. 838.) No action shall be defeatod by reason of the misjoinder of parties, and the court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it : (O. XVI., r. 13.) (See Costs and see 15 & 16 Vict. c. 86, s. 51 ; post, II., 2.) 3. Person Suing on Behalf of Himself and Others. Where there are numerous parties having the same interest in one action, one or more of such parties may sue on behalf or for the benefit of all parties so interested : (0. XVI., r. 9.) The owner of a share in a ship may sue on behalf of himself and numerous parties having the same interest, in an action for freight and dues for the use of the ship : {De Hart v. Stevenson, L. Rep. 1 Q.B. Div. 313 ; 45 L. J. 575, Q.B.) A bondholder in a corporation may sue on behalf of himself and others to restrain improper dealings with funds : [Wilson v. Church, L. Rep. 9 Oh. Div, 652 ; 39 L. T. Rep. N. S. 413; 26 W. R. 735.) As to creditors suing for administration, see Administration. In aU cases of suits for the protection of property pending litigation, .... and in all cases in the nature of waste, one person may sue on behaU of himself and of all persons having the same interest: (O. XVI., r. 11 ; 16 & 16 Vict. c. 86, s. 42, r. 6.) Notice of judgment must in cases under s. 42, be served on persons formerly necessary parties : (r. 8 ; see Judgment.) 568 " Parties. 4. Tetjstees. Trustees .... may sue .... on behalf of or as representing the property or estate of which they are trustees, without joining any of the parties beneficially interested in the trust or estate, and shall be considered as representing such parties in the action : (O. XVI., r. 7.) Trustees for sales represent their beneficiaries in a partition action, and it is unnecessary to serve the beneficiaries with notice of judgment : (Stace V. Gage, L. Rep. 8 Oh. Div. 451 ; Goodrich v. Marsh, W. N. 1878, p. 186; Simpson v. Denny, L. Rep. 10 Oh. Div. 28.) Subject to the provisions of the [Judicature Act, 1873] and the Rules, the provisions as to parties contained in sect. 42 of 15 & 16 Vict. c. 86, shall be in force in actions in the High Court of Justice : (O. XVI., r. 11.) The section provides as follows : Any .... trustee may obtain a decree against any one legatee, next of kin, or cestui que trust for the administration of the estate or the execution of the trusts : (r. 6 ; see Administbation.) The persons who, according to [the former practice of the Court of Chancery] would be necessary parties to the suit, shall be served with notice of the [judgment] : (r. 8 ; see Jttdgmbnt.) In all suits concerning real or personal estate which is vested in trustees under a wiU, 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 and administrators in suits concerning personal estate, represent persons beneficially interested in such persond estate ; and in such cases it shall not be necessary to make the parties beneficially interested under the trusts parties to the suit : (r. 9.) As to Trustees of Bankrupts, see post, 26. As to Lloyd's Corporation, see Lloyd's v. Sa/rper, 42 L. T. Rep. N. S. 218 ; 49 L. J. 217, Oh ; 28 W. R. 419.) 5. BxEcuTOBs AND Rbpebsentatives Expeesslt Appointed. Executors .... may sue .... on behalf of or as representing the .... estate of which they are .... representatives without joining any of the parties beneficially interested in the .... estate, and shafl be considered as representing such parties in the action: (0. XVI., r. 7.) Subject to the provisions of the [Judicature Act, 1873] and the rules, the provisions as to the parties contained in sect. 42 of 15 & 16 Vict. c. 86, shall be in force as to actions in the High Court of Justice : (0. XVI., r. 11.) The section provides as follows : Any executor .... may obtain a decree against any one legatee, next of kin, or oestm que trust for the administration of the estate or the execution of the trust : (r. 6 ; see Administkation.) All the executors must be parties, either as plaintiffs or defendants, in an administration action : {Latch v. Latch, L. Rep. 10 Oh. App. 464.) The persons who, according to the [former practice of the Court of Chancery] would be necessary parties to the suit, shall be served with notice of the [judgment] ; (r. 8 ; see Judgment.) If in any suit or other proceeding before the court it shall appear to the court that any deceased person who was interested in the matters in question has no legal personal representative, it shall be lawful for the court either to proceed in the absence of any person representing the estate of such deceased person, or to appoint some person to represent such estate for all the purposes of the suit or other proceeding, on such notice to such person or persons, if any, as the court shall think fit, either specially or Parties. 569 generally by public advertisements ; and the order so made by the said court, and any orders consequent thereon shall bind the estate of such deceased person in the same manner in every respect as if there had been a duly constituted legal personal representative of such deceased person, and such legal personal representative had been a party to the suit or proceeding, and had duly appeared and submitted his rights and interests to the protection of the court : (15 & 16 Viet. o. 86, s. 44.) . The section only applies to a case where there is a difficulty, either from insolvency or from any other cause, in obtaining representation to a deceased person. It is in the discretion of the court to exercise the power, which will not generally be exercised so that a whole adverse interest is so represented: (Ban. 181.) The section extends to cases where the estate to be represented is sought to be made liable ; where proceedings are pending in the Probate Division ; where the next of kin refuse or neglect to administer ; where it is uncertain whether the person whose estate was to be represented is alive or dead (Dan. 181) ; in an action by a transferee of policy moneys against the assurance company : {Crossley v. City of Glasgow Life Assu- rance Company, L. Rep. 4 Oh. Div. 421; but see Webster v. British, Empire Company, 43 L. T. Rep. N. S. 229.) Where a sole plaintiff died insolvent, and, so far as ascertainable, intes- tate, an order was made to enable the defendant to move to dismiss for want of prosecution : {Wingrove v. Thoinpson, L. Rep. 11 Oh. Div. 419; 27 W. R. 910.) A representative will not be appointed where he would have to be active, in prosecuting a judgment : or where a general administration is sought ; or where the deceased was an accounting party ; or where there is personal responsibility attached : (Dan. 182.) The application should be made by the plaintiff, if any, on motion without serving the other parties, but the parties entitled to taie out administration must have notice : (Dan. 183 ; but see Wingrove v. Thompson, sup.) The court may make the order at the hearing : (Dan. 183.) The proper person to be appointed is the person who would be appointed administraior ad litem, : (Id. ; see post, 6.) On appointment he should give notice thereof, and of the solicitor who will act for him, to the Master at the Oentral Office, and produce the order for entry : (Id. ; J. A. 1879.) 6. Administkatoes. (a) Ord/ina/ry. Administrators may sue .... on behalf of or as representing the .... estate of which they are .... representatives, without joining any of the parties beneficially interested in the .... estate, and shall be considered as representing such parties in the action : (O. XVI., r. 7.) Subject to the provisions of the [Judicature Act 1873] and the rules, the provisions as to parties, contained m sect. 42 of 15 & 16 Vict., c. 86, shall be in force as to actions in the High Oourt of Justice ; (O. XVI., r. 11.) The section provides as follows : — Any .... administrator .... may obtain a decree against any one legatee, next of kin, or cestui que trust for the administration of the estate, or the execution of the trusts : (r. 6 ; see Administba- TiON, Tbusts.) j, ,^ n The persons, who, according to the [former practice of the Court of Chancery], would be necessary parties to the suit, shall be served with noticeof the [judgment] : (r. 8; see JtrDGMENT.) 570 Parties. (b) Ad Litem. When it is necessary that the representative of a deceased person he made a party to a pending suit in the Chancery DiTision, but the executors and next of kin mil not qualify themselves as his representatives, adminis- tration will be granted by the Probate Division to the nominee of a party, limited to attend, supply, substantiate, and confirm the proceedings already had, or that shall or may be had in the suit, or in any other cause or suit which may be commenced in the same or any other court between the parties, or any other parties, touching the matter at issue in the cause or suit, and until final decree is made therein, and carried into execution and the execution fully completed : (Coote's Pr. 152.) Administration is a^o granted to the nominee of a plaintiff who is about to commence proceedings : (Id.) The grant wiU be made whether proceedings are commenced by writ or petition: (Id.) The grantee of administration has only power to carry on the proceedings, not to receive the fruits ; but, if required, the Probate Division will allow a further limitation to receive any sum under the final order with interest : (Ooote, 153.) When the object of the suit is only to bind the estate, it is sufficiently represented by an administrator o^ Utem, and he generally represents it to the extent of the authority purported to be conferred by the letters of administration : (Dan. 180.) But general administration will not be ordered in the presence of an administrator, only ad litem : (Dan. 179.) When general administration is afterwards granted, the general adminis- trator is bound by the former proceedings : T^Dan. 180.) (e) Pendente Lite. The Probate Division may appoint any person administrator pendente lite, with all powers of a general administrator, except that of administering the residue : (20 & 21 Yict. c. 77, s. 70.) In such cases the rule requiring a representative to be before the court is dispensed with : (Dan. 221.) If a receiver has been appointed in the Chancery Division, his appoint- ment wiU be discharged : (Tichhorne v. Tichhorne, L. Rep. 1 P. & D. 730.) (d) Durante Absentia. In this case the administration is limited for the purpose " to become and be made a party to [an action or actions] to be [commenced] against the administrator in any of Her Majesty's courts of equity, and to carry the decree or decrees of any of the said court or courts into effect, but no further or otherwise " (38 Geo. 3, c. 87, s. 2 ; see Coote's Pr. 164 j Donald V. Bather, 16 Beav. 26.) It was granted to one of the next of Idn, when one executor had never intermedmed, and both were out of the jurisdic- tion : [Be Jenkins, 41 L. T. Rep. N. S. 736 ; 49 L. J. 29, P. D. & A. ; 28 W. R. 431.) (e) Appointment of, by Court. See 15 & 16 Yict. c. 86, s. 44, cited sttp., 5. [And see Administbation Action ; and ^os<, VI.] 7. Lboatees. Subject to the pro-visions of the [Judicature Act, 1873] and the rules, the provisions as to parties contained in sect. 42 of 15 & 16 Vict. c. 86 apply : (O. XVI., r. II.) The section, so far as relates to legatees, is as follows :— Any residuary legatee .... may, without serving the remaining Parties. 571 residuary legatees, .... leave a decree for the administration, of the personal estate of a deceased person : (r. 1 ; see Administbation ; Wool- aston T. Woolaston, L. Rep. 7 Ch. Div. 68.) Any legatee interested in a legacy charged upon real estate may, without serving any other legatee, .... have a decree for the administration of the estate of a deceased person : (r. 2 ; see Adminis- TEATION.) The persons who, according to [the former practice of the Court of Chancery], would be necessary parties to the suit shall be served with notice of the [judgment] : (r. 8 ; see Judgment.) 8. Next of Kin. Any .... next of kin may, without serving the remaining .... next of kin, have a decree for the administration of the personal estate of a deceased person : (O. XVI., r. 11 ; 15 & 16 Vict. o. 86, s. 42, r. 1 ; see 'post v., 1; Administbation s, Jttdgmbnt.) Notice of judgment must be served on persons formerly necessary parties : (r. 8 ; see Judgment.) The court may appoint a person or persons to represent the next of kin, as in case of an heir-at-law : (0. XVI., r. 9a, June, 1876 ; see post, 11.) 9. Peesons Inteeestbd in Peoceeds op Realty. Any person interested in the proceeds of real estate directed to be sold, may, without serving any other .... persons interested iu the proceeds of the estate, have a decree for the administration of . the estate of a deceased person : (O. XVI., r. 11 ; 15 & 16 Vict. c. 86, s. 42, r. 2 ; see Administbation.) Notice of judgment must be served on persons formerly necessary parties : (r. 8 ; see Judgment.) 10. Residuabt Devisees. Any residuary devisee .... may, without serving any co-residuary devisee, .... have [a decree for the administration of the estate of a deceased person: (O. XVI., r. 11; 15 & 16 Vict. c. 86, s. 42, r. 3 ; see Administbation.) Notice of judgment must be served on persons formerly necessary parties : (r. 8 ; see Judgment.) 11. Heies. Any .... heir may, without serving any .... co-heirs, have [a decree for the administration of the estate of a deceased person] : (0. XVI. r. 11 ; 15 & 16 Vict. c. 86, s. 42, r. 3 ; see Administration.) Notice of judgment must be served on persons formerly necessary parties : (r. 8 ; see Judgment.) In any case in which the right of an heir-at-law, or the next of kin, or a class, shall depend u_pon the construction which the court may put upon an instrument, and it shall not be known, or be difficult to ascertain, who is, or are, such heir-at-law, next of kin, or class, and the court shall con- sider that, in order to save expense, or for some other reason, it will be convenient to have the question, or questions of construction determined before such heir-at-law, next of kin, or class, shall have been ascertained by means of inquiry, or otherwise, the court may appoint some one, or more, persons to represent such heir-at-law, next of kin, or class, and the judgment of the court, in the presence of such person, or persons, shall be binding upon the party, or parties, or class, so represented : (O. XVI,, X. 9a., June, 1876.) Where upon the construction of a will questions had arisen as to what 572 Parties. classes of representatives of the testator were entitled, and there was difficulty in finding the heir who in the result might be held not entitled, the court appointed persons to represent the various classes of which some or one might be held entitled before the question of construction came on for decision : {Be Peppitt, L. Rep. 4 Oh. Div. 230 ; 46 L. J. Oh. 95.) In suits to execute the trusts of a will, it shall not be necessary to make the heir-at-law a party ; but the plaintiff shall be at liberty to make the heir-at-law a party whrae he desires to have the will established against him : (0. O. 7, r. 1.) 12. Oesttjis Que Tkubtent. Any one of several cestuis que trusts under any deed or instrument, may, without serving any other of such cestuis que trusts, have a decree for the execution of the trusts of the deed or instrument : (0. XVI. r. 11 ; 15 & 16 Vict. c. 86, sect. 42, r. 4.) Notice of judgment must be served on persons formerly necessary, parties : (r. 8 ; see JtrDGMBNT.) 13. OiiAss. The court may appoint one, or more, persons to represent a class, as in the case of an heir-at-law : (see O. XVI., r. 9a, June, 1876 ; sttp., 11.) 14. Mabeied Woman. (a) Sv/ing in her own name alone. (1) By Leave. Married women may .... by the leave of the court or a judge sue .... without their husbands, and without a next friend, on giving such security (if any) for costs as the court or a judge may require : (O. XVI., r. 8 ; see Costs.) Where the husband was both the wife's next friend and a defendant, his name was struck out as a next friend, and his wife was allowed to sue alone : {Lewis v. Nohbs, L. Bep. 8 Oh. Div. 593 ; 42 L. J. 662, Oh.) Security for costs may be ordered at any time : {Mariano v. Mann, L. Rep. 14 Oh. Div. 419 ; 42 L. T. Rep. N. S. 890 ; 49 L. J. 510, Oh.) When a married woman is unable to obtain a next friend of substance, she may, on ex pa/rte motion supported by affidavit, obtain an order authorising her to commence or continue proceedings, or to appeal, with- out a next friend, in forma pa/u/peris : (Dan. 38.) As to married women suing alone in cases of banishment of their husbands, or when their husbands are aliens, traitors, or felons, see Dan. 84, et seq. ; 33 Vict. c. 14 ; 33 & 34 Vict. c. 23. ^2) Where Judicially Separated. A married woman judicially separated from her husband may commence an action in her own name as if she were a/e?»e sole : (20 & 21 Vict. c. 85, s. 26.) (3) With Protection Order. A married woman, who has obtained a protection order for property she has ac5[uired by her lawful industry, or has become possessed of, since her desertion by her husband, is in the like position as a plaintiff : {Id., s. 21 ; 21 & 22 Vict. c. 108, s. 6.) The order for protection has been e^dended to property to which the wife is possessed or entitled in remainder or rever- sion at the date of the desertion : (21 & 22 Vict. c. 108, s. 8.) (4) Having Separate Estate. Under 33 & 34 Vict. c. 93, a married woman may maintain an action in her own name for the recovery of any wages, earnings, money, and pro- perty thereby declared to be her separate property, viz., earnings made in an employment carried on separately, or obtained by the exercise of Pa/rties, 573 literajTr, artistic, or scientific skill, inTestments of such earnings, deposits in savings' banks, and annuities granted by the Oommisaioners for the Reduction of the National Debt in her name, sums (over 202.) transferred to her separate use in the Banks of England and Ireland, "fully paid-up shares, debentures and debenture stock, or any stock to the holding of which no liability attaches, in an incorporated or joint-stock company, registered in her name to her separate use, property in a friendly society, benefit building, or loan society, to wMch no liability is attached, entered in her name to her separate use, real or personal property to any amount coming to her through an intestacy (if she has been married since the 9th of Aug., 1870), money, not exceeding 200Z., under any deed or wiU (if so married), and policies and all benefit thereunder efEected by her, on her own or her husband's life, and expressed to be for her separate use (33 & 34 Vict. c. 93, ss. 1-5, 7, 8, 10) ; she may maintain an action in her own name for the recovery of any property belonging to her before marriage, and which her husband has by yriting agreed shall belong to her for her separate use after marriage ; and she has in her own name the same remedies against all persons for the protection and security of such wages, earnings, money, and property, and of any property purchased, or obtained by means thereof for her own use, as if such wages, &c., belonged to her as an unmarried woman : {Id., a. 11.) She may sue for damages for expulsion from separate property : {Moor V. BoUnson, 40 L. T. Rep. N. S. 99; 48 L. J. 156, Q. B.) (b) Suing with Husband as co-Plaintiff. In all cases in which the husband seeks to recover the property of the wife, he should make her a co-plaintiff with himself whether the property accrued before or after marriage : (Dan. 85.) Where a married woman sues as personal representative, her husband ought to be a co-plaintiff : {Burdick v. Garrick, L. Rep. 5 Ch. App. 238.) Where the action is for the wife's chose in action not settled to her separate use, the defendant cannot object to the husband's suing jointly with her, nor is her right to a settlement affected by such joinder : (Dan. 103.) (c) Suing by Next Friend. Married women .... may sue as plaintiffs by their next friends, in the manner practised in the Court of Chancery before the passing of the [Judicature] Act [1873] : (O. XVI., r. 8.) In all cases relating to the separate property of a married woman (other than snch as was declared to be separate by the Married Women's Pro- perty Act, 1870), the suit should be commenced by her in the name of her next friend : (Dan. 102.) Her husband must be made a defendant : {Id. 103; Roberts v. Evans, L. Rep. 7 Ch. Div. 830 ; 38 L. T. Rep. N. S. 99; 47 L. J. 469, Ch. ; 26 W. R. 280) ; but in cases in which he takes an independent interest in the property sought to be affected by the decree, he may, perhaps, be joined as a co-plaintiff with his wife, the latter suing by her next fnend : (per RomUly, M.R., in Bichards v. Millett, 9 L. T. %.. N. S. 13.) R is not necessary that the next friend should be the married woman's relation, but he must be a person of substance (Dan. 104 ; Hind v. Whit- more, 2 K. & J. 458 ; Macann v. Borradaile, 17 L. T. Rep. N. S. 135) ; the object for which a next friend is required being that he may be answerable for costs : (Dan. 104.) Before the name of any person shall be used as ... . next friend of a married woman .... such person shall sign a written authority to the solicitor for that purpose, and such authoritv shall be filed when the [writ is issued] : (15 & 16 Vict. c. 86, s. 11.) 574 Parties. • If the next friend be found to be in insolvent circumstances the action will, on motion, be ordered to be stayed till he give secority for costs, or the married woman shall give seourity for costs, or obtain the appointment of a substantial person as next friend, or obtain an order to sue in formd pav^eris : fDan. 104, 105 ; Hind v. Whitmore, svp. ; JUacann v. Borradaile, sv/p.) Security for costs may be ordered at any time: {Ma/rtcmo v. Mam,, L. Rep. 14 Ch. Div. 419 ; 42 L. T. Rep. N. S. 890 ; 49 L. J. 510, Oh.) In case a next friend dies, whether before or after appearance, a new next friend may be introduced under an order of course, and the same may be done where the next friend is incapable of acting or it is desirable to remove him, before any appearance has been entered ; but after appearance, an order, on motion, with notice, or summons is necessary : (see Dan. 105.) When a married woman applies to change the next friend the court has a discretion, having regard to the question of the defendant's costs being in peril, and the order is generally made on the condition of the new next friend giving security to answer past costs, and abide by the court's order as to future costs : {Idl ; but see Pemberton on Judgments, 2nd edit. 2Q0.) Where, however, a new next friend had been substituted in the place of one who was insolvent, the court refused to order the former to find security for past costs : {Macann v. Borradaile, 17 L. T. Rep. N. S. 298.) The retiring next friend has also been required to give security for costs up to the time of the change : (Dan. 106.) Where the next friend dies, the defendant may obtain any order, on motion with notice, to dismiss the proceedings with costs, unless a new next friend is named within a reasonable time : {Id.) A next friend may in every case be required to give security for costs {Pennington v. Alvin, 1 Sim. & St. 264 ; Pemb. 201) ; and where he goes to reside abroad permanently, the practice is the same as if he had been the actual plaintifE : (Dan. 106.) The married woman's consent is required before a suit was instituted by the next friend, except where she was an infant : (Dan. 103.) If the next friend commences the action without her consent, she may, upon motion, obtain the dismissal of the suit with costs, which the next friend has to pay {KenricJe v. Wood, L. Rep. 9 Eq. 333) ; but this right does not exist for the benefit of a defendant : {Davies v. Whitehead, W. N . 1866, p. 162.) 15. Infants. (a) How they Sue. Infants may .... sue as plaintiffs by their next friends, in the manner practised ui the Court of Chancery before the passing of the [Judicature] Act [1873] : (O. XVI., r. 8.) (6) When they May Sue. Where from the nature of the demand made by the infant it would follow that, if the relief were granted, the rules of mutually would require something to be done on his part, such an action cannot be maintained : (Dan. 66.) (c) Next Friend. (1) Who may be. The court wiU allow any person to act. as next friend : {Id. 67.) He need not be a person of substance, and on special case being made out, may 8X16 in formd pauperis : {Id. 73.) Communication ought to be made to the father, if any, of the infant, before commencing proceedings in the name of the latter. If the father has no adverse interest he wiU be substituted as next friend : {Woolf\. Pemiberion, L. Rep. 6 Ch. Div. 19 ; 37 L. T. Rep. N. S. 319.) Parties. ■ -73 (2) Written Authority. Before the name of any person shall be used in any [action] to be instituted in the .... court, as next friend of any infant .... such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed [when the writ is issued] : (15 & 16 Yict. c. 86, s. 11.) The authority is necessary in case a new next friend is appointed : (Dan. 76.) (3) Liability to Costs. As a general rule the next friend is liable to pay the defendant's costs of dismissing the action: (Dan. 77.) An infant repudiating an action when he attains twenty-one cannot compel the next friend to pay the costs, unless he can establish that the action was improperly commenced : (Dan. 76.) (4) Retiring. Generally a next friend is not allowed to retire without giving security for the costs already incurred ; and the court refused to allow another next friend to be substituted for the one who had up to that time conducted the suit in that capacity, and who desired to withdraw himself, without a previous inquiry whether it was for the benefit of the infant that such substitution should take place. The application to substitute in place of a next friend desirous of retiring is by summons : (Dan. 74-5.) (5) BemoTal. If the next friend of an infant does not do his duty, or if any other sufficient ground be made out, the court wiU remove Mm, as when he wiU not proceed with the action. And if" he is connected with the defendants in the cause in such a manner as to render it improbable that the interest of the plaintiff wiU be properly supported, the court will remove him and appoint another : (Dan. 73.) The next friend of infant plaintiffs has no power to deprive them of their right to appeal ; and his refusal to appeal, though admittedly hond fde, is misconduct sufficient to justify his removal : {Bwpuy v. Welsford, 42 L. T. Rep. N. S. 730 ; 28 W. B. 762.) When it is necessary to appoint a new next friend in place of one incapable or removed, the solicitor of the plaintiff should apply for an order appointing a new next friend in his stead, whose fitness must be generally proved, and after such appointment his name should be made use of in all subsequent proceedings, where the former would have been named : (Dan. 75.) In Case of a next friend's death, the infant's nearest paternal relations are entitled to nominate a new one, who is appointed by order of course, without an affidavit of fitness : {Talbot v. Talbot, L. Rep. 17 Eq. 346.) (6) Appointment of New Next Friend. Before appearance, the new next friend's name may be introduced into the record, under an order on petition of course. After appearance, in the case of death, If the application is by the plaintiff's solicitor, it is for an order of course to amend. 11 by another person, petition of course must be first presented at the Rolls to change the solicitors, and, an order having been made thereon, a petition of course must be presented for an order appointing a new next friend. In other cases the application, is by petition of course it defendants consent, otherwise by summons, or motion on notice : (Dan. 75.) 576 Parties. (7) Serving and Entry of Order. Every order appointing a new next friend must be Berved, on the solicitors of the defendants, and entered at the Central Office : (Dan. 76 ; J. A 1879.) (d) Mahvng Infant Co-plamtiff a Befendamt. If an infant is made a co-plaintiff with others, and it appears that it will be more for his benefit that he should be made a defendant, an order to strike his name out as plaintiff, and to make him a defendant, may be made : (Dan. 70.) As to inquiry whether an action is for an infant's benefit, see Staying Proceedings. (e) Effect of Infant Attaining Majority. The next friend of a sole plaintiff ought to taie no step in his name after he attains full age. If an infant come of age pending his action, he may elect whether to proceed or not. If he elect to proceed, all further proceedings may be in his name without amendment, and he wiU be liable to costs from the com- mencement of the action. If he elect to abandon, he may (1) obtain an order of course to dismiss the action on payment of costs by himself, or (2) mky refrain from taking any step, in which case he is not liable for costs. Repudiation on coming of age relates back to the commencement of the action, overriding aU that has been done in it : (Dan. 76-77.) 16. Lunatics (so Found). In all cases in which lunatics .... might, before the passing of the [Judicature Act, 1873] have sued as plaintiff .... in any action or suit .... they may .... sue as plaintiffs in any action by their committee or next friend in manner practised in the Court of Chancery before the passing of the said Act : (O. XVIII.) Lunatics, so found, sued by the committees of their estates : (Ayck. 600 ; Dan. 80.) The committee must previously obtain sanction under the jurisdiction in lunacy, by petition under the commission : [Id. ; Elmer on Lunacy, 204.) If there is no committee of the estate the lunatic must sue by his next friend: (Dan. 80.) The lunatic must be a co-plaintiff, except in Actions to avoid transactions entered into by a lunatic on the ground of his incapacity : {Id. ; Ehner, 123.) Before the name of any person shall be used .... as next friend .... such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed [when the writ is issued] : (15 & 16 Vict, c. 86, s. 11.) 17. Lunatics (Not so Pound). In all cases in which .... persons of unsound mind not so found by inquisition might .... before the passing of the [Judicature Act, 1873] have sued as plaintiffs .... in any action or suit, they may respectively sue as plaintiffs in any action by their next friend in manner {Practised in the Court of Chancery before the passing of the said Act : (O. XVm. ; Ayck. 600.) Persons of full age, incapable of acting for themselves, though neither idiots nor lunatics, may sue by their next friend, without the intervention of the Attorney- General : (Dan. 83.) A person of unsound mind not so found, may, by his next friend, be plaintiff in an action for obtaining a sale under the Partition Act : (Watt V. Leaeh, 26 W. R. 475.) Before the name of any person shall be used .... as next friend .... Parties. 577 such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed [when the writ is issued] : (15 & 16 Vict, c. 86, s. 11.) If an action is commenced by a next friend concerning the lunatic's estate, and he is subsequently found lunatic under a commission, no further proceedings can be taken in the action : {Beall v. Smith, L. Rep. 9 Oh. App. 85 ; 29 L. T. Rep. N. S. 625 ; 22 W. R. 121 ; 43 L. J. 245, Oh.) 18. Paktnebs. Any two or more persons claiming .... as co-partners may sue in the name of their respective firms, if any : (O. XVI., r. 10.) A cost book mining company, though unincorporated, may sue by its partnership name : (JEscott v. Gray, 39 L. T. Rep. N. S. 121.) If the names of the partners are declared in writing on demand [see Discovert] the proceedings continue in the name of the firm : (O. vll., r. 2.) 19. OoEPOEATioNs, Companies, and Societies. (a) Generally. The power to sue in its corporate name is inseparably incident to every corporation, whether sole or aggregate : (Dan. 23.) A corporation which has a head cannot sue without it : (Dim. 24.) (6) Sole Corporation. A sole corporation suing for a corporate right, having two capacities — a natural and a corporate — ^must show in what capacity he sues, (c) Foreign Corporation. A foreign corporation may sue in its corporate name : (Dan. 25.) (d) Companies Under 7 Will. 4 ) Mow Payment Made. (c) Filing Request. (d) Receipt. (e) Notice to PwrUes. 4. Obdeb foe Patment, &c., in. (a) Reference to Record [see sup., VI.] (b) Title of Cause or Accovmt. (c) Source from which Derived. (d) Direetiorbs, Draiwing up,' ^c. [see swp., VII., and JuDS- ment.] (e) Providmg for Investment. 5. Patuents, &o., undee Oedebs. (a) May he made before Service or after Time Limited. (b) Interest or Dividends through Default Payable on Request. (c) Notice to Parties. {(J) Consequences of Default not Pr^udiced. (e) Extending Time. (/) Where Necessary for Defendamt pleading Pa/gment in. (g) How Payment, ^c, made wnder Orders Qenerally. (1) To be with Paymaster's Privity. (2) Direction to Bank. (3) Receipt. (4) Bank Certificate. (5) Filing Paymaster's Certificate. (h) How Transfer made wnder Order. (1) To be with Paymaster's Privity. (2) Direction for Transfer. (3) Bank Certificate. (4) Filing Paymaster's Certificate. (i) Unascertamied Money. 6. Ceedit of Monet, Ac. 7. Payment, &c., in undee Paetioulae Statute. (a) Judicature Acts {Defendamt Pleading Payment) [see sup., 3, 4J. (b) Trustee Relief Act [see Teustee]. (c) Lamds CloAises Act [see Lands Clauses Act]. (d) Copyhold Acts [see Copyhold Acts]. (e) ParUwmentairy Deposit Act. (1) Warrant. (2) Payment in. (3) Transfer of Stock in lieu of Payment in, (4) How Iiong Money, Ac, to Remain in. Payment into and out of Court. 627 (/) Railway and TranrnooAj Frivate Bills. (g) Traimoays Act. " {h) Legacy Duty Act [see Lsai-CY DvTY Act}. (t) Bailwa/y Construction^FaciUties Act. IX. PLACING MONET IN COUET ON DEPOSIT. 1. Wheee Monet Placed on Deposit. 2. Where Request Necessabt. 3. When Dbposit Made. 4. Monet ebom Conversion oy Government Securities. 5. Statino Deposit on Request. 6. Withdrawtno Mojiet from Deposit. 7. Interest on Deposits. (a) On What' Sums Computed. (b) Bate. (c) Periods for which Computed. (d) Crediting. (e) Caleuilation where Part Withdrawn. (/) Placing Interest on Deposit. 8. Dividends. 9. Monets on Deposit apteb Obdee Dealing Therewith. X. INVESTMENT. 1. Monet in Court to be Invested. 2. Application. 3. Order. (a) When Necessam/. (b) Reference to Record [see sup., VI.] (c) Title of Cause amd Account, Preparation, ^c. [see snji.. VII.] 4. When Request Necessabt. 5. What Sums Invested. 6. In What Secue^ties. (a) Generally. (h) Under Particular Statutes [see post, 8]. 7. General Procedure aftee Request. (o) Direction to Broker. (6) Cheque. (c) Certificate of Transfer. (d) 8ta/ying Investment. (e) As to Exchequer BiUs and Bond^. (/) Accnmig Dividends. (g) Application of Money on Deposit [see swp., IX.] 8. Investment undeb Particular Statute. (a) Trustee ReUef Act [see Trustees]. (6) Lands Glauses Act [see Lands Clauses Act]. (c) Copyhold Acts [see GoiyuoIj^ Acts]. (d) ParUam,entary Deposit Act. (e) Tramways Act, if) Legacy Duty Act. (g) Ra/ilway Construction Facilities Act. XI. CARRYING OVER. 1. Geneeallt. (a) Where Money, S[C., Carried Over. (b) Order. (c) Request. (d) Certificate of Carrying Over. 2. Of Taxation Fees. 3. Or Balance under 51. ;ill. SALE OP SECURITIES. 1. Application. S 82 628 Payment into and out of Court. 2. Obdsb. 3. Cbbtuioate of Oedeb. 4. PATHAStBE's DIRECTION TO BANK. 5. Dividends. Xin. PAYMENT OUT. 1. Or Income. (o) AppUcation. (6) Service wnd Evidence. (c) Order. il) Where Necessary. (2) Reference to Eeoord [see slip., VI.] (3) Title of Cause and Account [eeesitp., VU.] (4) Directions. (5) ' Sums, Dates, Amounts, Times of Payment, &o. [see SMp., VII.] (6) Description of Persons. (7) Drawing up, Printing, Copies, &t„ XIV.] (4) Cheque. (5) Under Power of Attorney. (6) To Partners. (7)' To Eepresentatlves or Survivor of Absolute Owner. (8) To Surviving Bepresentatives. (9) To Married Women. (e) Income wnder Particular Statutes. (1) Trustee Relief Act [see Tetjstees] . (2) Lands Clauses Act [see Lands Clauses Act] . (3) Copyhold Acts [see Copyhold Acts]. (4) Parliamentary Deposit Act [see post, 2]. (5) Railway and Tramway (Private) BiUs. (6) Tramways Act. (7) Railway Construction Facilities Act. 2. Op Principal. (a) Application. (b) Service. ' , (c) Evidence. ((J) Order. (1) Where Necessary. (2) Reference to Record [see sup., VI.] (3) Title of Cause and Account [see sup., VII.] (4) Directions. (5) Sums, Dates, Amounts, &c. [see swp., VII.] (6) Description of Persons [see srap., VII. ; XIII., 1.] (7) Drawing up. Printing, Copies, &o. [see sup., VII.] ' (e) How Pa/gmeni out made generaUy. (1) Request. (2) Withdrawing Deposit (see svp., IX.] (3) Withdrawing Investment [see post, XIV.] I (4) Ascertaining Residues and Aliquot Shares. (5) Cheque and Direction for Payment. (6) Under Power of Attorney [see sup., 1 ()]. 3. Evidence [see sv^., XIII., 2 (c)]. i. Obdeb. (a) When, necessary. (6) Reference to Record [see sup., VI.] (c) Title of Cause and Account [see sup., VII.] (d) Directions. (e) Sums, Dates, Amownts, Sfc. [see sibp., VII.] (/) Description of Persons [see sup. VII. ; XIII., 1]. , (g) Drawing otp. Printing Copies, ^c. [see sup., VII.] 5. How Teansfer oe Dblivebt made gbnbkallt. (o) Certificate of Order. ' (6) Dividends. (c) Ascertaining Residues or AUquot Shares |^see sup., XIII., post, XV.] (d) Direction. (e) Bank Certificate. (f) To Partners. . (g) To Representatives or Survivor of Absolute Owner, (h) To Surviving Representatives. (i) To Married Women. 6. Tbanspeb and Deliveet undek Pabticulab Statutes [Bee«atp.,XIIL, 2(/). XV. ASCERTADSmSTG SHARES AND COMPUTINa INTEREST. XVI. VERIFSING DOCUMENTS. XVn. PROVISIONS AS TO LEGACY AND SUCCESSION DUTY. XVin. CERTIPICATBS OF DEALING WITH FUND. I. INTERPBETATION. 1. 35 & 36 Vict. c. 44. In the Chancexy i.Fimds) Act, 1872 (36 & 36 Vict. c. 44) the words in inverted conmias have the meanings attached : " Money in court " — any sum of money paid into the Bank of England -with the privity of the Accountant-General .... or of the Paymaster- General on behalf of the court .... or placed to the credit of any cause, matter, or account in the court . . . [including] dividends on securities in court, and interest on money on deposit ; " Persons " includes a body corporate and company ; " Dividends " includes interest, or other periodical produce ; " Government securities " — any annuities, Exchequer bonds. Exchequer bills, and other parliamentary securities of the Government of the United Kingdom ; " Securities " includes Government securities, and any security of ^ny foreign state, any part of Her Majesty's dominions out of the United Kingdom, or any body corporate or company, or standing in books kept 630 Payment into amd out of Court. by any body corporate, company, or person in the United Kingdom, and all stocks, funds, and efPects ; " Securities in court " — any securities as defined by [35 & 36 Vict. c. 44] standing or deposited in the name or to the credit or account of the -Accountant-General' >. . . . or of the Paymaster-General on behalf of the court .... or placed, to the credit of a cause, matter, or account in ... , court : (35 & 36 Yict. c. 44,^ s. 3.) 2. Rtjles of 1874, Amended Oedebs, &c. In these rules, and in orders, and in directions and certificates issued by the Chancery Paymaster, terms .... have the same meaning as in the Chancery Funds Act ; and the words in inverted commas have the nieanings attached : " Order " — an order of the Chancery Division intituled in a cause or matter in ... . court, and made by any judge or judges thereof, whether sitting in court or at chambers, or an order of the court intituled in the matter of the suitors of the court, or as to payments out of the " Appeal .Deposit Account," an order made on a non-attendable petition presented to the Lord Chancellor ; a decree, and a report of a master in lunacy confirmed by fiat, and thereby receiving the operation of an order under the Lunacy Regulation Atet, 1853 (16 & 17 Yict. c. 70). "Chief Clerk," the chief clerk of a judge of the said court. " Chief clerk's certificate " and " Certificate of a chief clerk," a certificate intituled in a cause or matter in the.said court, and made by a chief clerk, of a judge of the said / court, and approved and signed by a judge thereof. " Bank," Bank of England or Governor and Company of the Bank of England. " Chancery , .Paymaster," Her Majesty's Paymaster-General for the time being, or the Assistant JPaymaster-General for Chancery business for the time being deputed by the Paymaster-General to act on his behalf for Chancery l)usine8s. " Chancery Pay Office," Paymaster - General's office for Ohanoeiy business. " Chancery Pay Office Account," the account at the Bank of the Paymaster-General for the time being on behalf, of the Chancery Division. " Chancery Audit Office," the Chancery branch of the D^jartment of the Comptroller and Auditor- General. " Title of the cansQ" (with respect to causes commenced since 1st November, 1852), the short title .... in the following form, viz. (A. v. B. 1874, A. 100). " Cause or matter " includes a separate account in a cause or matter and a matter intituled merely as an account. Words importing the plural include the singular, and vice versa. Words importing males include females : (Ch. P. R. 1874, r. 2 ; Ch. P. A. O. 1874, r. 2.) IL PROVISIONS AS TO AOOOinSTTANT - GENERAL AND MONEY PAID IN UNDER FORMER RULES. All Acts of Parliament .... rules .... orders, instruments, and proceedings referring to the Accountant-General of the Court of Chancery or Court of Exchequer are [subject to the Act and rules to] be construed and put into execution as if the Paymaster-General were therein named in [his place] .... but so that aU moneys and securities shall be paid, transferred, or deposited to the credit or on account of the Paymaster- General for the time being on behalf the court , . . . and not into the name of the person who is such Paymaster-General : (Ch. P. A. 1872, , B. 6.) Money in court periodically payable at the commencement of the Chancery Funds Buies, 1872, shall continue to be payable by the Chancery Paymaster in pursuance and on the authority of the entries of the cheques for periodical payments in the receipt books in the Accountant-General's Payment into and out of Court. 631 office, or of such other docTunents as the Accountant-General had been aociistomed to use in the preparation of such cheques, without the produc- tion of the orders and other documents in pursuance whereof such pay- meijits are made, being necessary : (Ch. F. R. 1874, r. 39.) Cheques, which before the commencement of the Chancery Funds Rules, 1872, had been signed by the late Accountant-General or by any of his predecessors, but have not been paid at the commencement of these rules, shall be a sufficient authority to the Chancery Paymaster, to cause payments to be made to the same persons, and of the same amounts as are named in such cheques, without the production of the orders or other documents, in pursuance whereof such cheques were so signed, being necessary : (Ch. F. R. 1874, r. 40,) m. POWERS OF PAYMASTER-GENERAL. The Paymaster-General for the time being shall perform all the duties and exercise all the powers, and authorities [formerly] performed by or vested in or capable of being exercised by the Accountant-General of the Court of Chancery [and] may do any act, sign or execute any instrument, and exercise any authority required or exercised to be done, signed, executed or exercised by him for the purpose of [the Chancery Funds Act, 1872] or any rules .... thereunder by [his] deputy or deputies : (Ch. P. A., 1872, s. 4, and see sup., II.) IV. INFORMATIOlSr, TRANSCRIPTS, LISTS. The Chancery Paymaster, upon a request in writing made by or on behalf of a person claiming to be interested in money or securities standing in the books at the Chancery Pay Office to the credit of a cause or matter stated in such request, may, in his discretion, issue, for the information of a judge or an officer of the court, a certificate of the amount and description of such money or securities, and such certificate shall have reference to the morning of the day of the date thereof, and not include the transactions of that day, and the Chancery Paymaster shall notify on such certificate the dates of any orders restraining the_ transfer, sale, delivery out, or payment, or other dealing with the securities or money in court to the credit of the cause or matter mentioned in such certificate, and any charging orders, affecting such securities or money, of which respectively he has had notice, and'vfith respect to any restraining or eharg^g orders hereafter to be made, the names of the persons to whom' notice is to be given, or in whose favour such restraining or charging orders have been made : (Ch. F. R. 1874, r. 87.) And when a cause or matter has been inserted in the [Chancery Pay- master's published triennial] list the fact shall be notified on the certificate relating thereto : (Ch. F. R. 1874, r- 87.) The Chajiceiy Paymaster may in his discretion, on a request in writmg, supply such information with respect to any transactions in the Chancery Pay Office as may from time to time be required in any particular case : (Ch. F. R. 1874, r. 90.) , . . Upon a request in writing made by or on behalf of a person claiming to be interested in money or securities standing in the books at the Chancery Pay Office to the credit , of a cause or matter stated in such request, the Chancery Paymaster may, in his discretion, issue a transcript of the account in the said books in respect of such cause or matter ; _and if so required by the person to whom it is issued, such transcjript shall be authenticated at the Chancery Audit Office : (Ch. F. R. 1874, r. 88.) As to the form of request, see ^ost, V. ,, .„ ^ , lonr > j As soon as conveniently may be after the Ist of September, lb75, and 632 Pdyment mto and out of Court. after the same day ia every succeeding third year, a list shall be prepared by the Chancery Paymaster, and filed in the Report Office, and a copy thereof shall be inserted in the London Gazette, and exhibited in the several offices of the court, of the titles of the causes and matters in the books at the Chancery Pay Office (other than the causes or matters referred to in rule 92), to the credit of which any securities, or any money amounting to or exceeding 501., may be standing, which money or the dividends on which securities have not been dealt with by the Accountant- General Or by the Chancery Paymaster (otherwise than by the continuous investment or placing on deposit of dividends), during the fifteen years immediately preceding such 1st of September, and no information shall be given by the Chancery Paymaster respecting any money or securities to the credit of a cause or matter contained in any such list until he has been furnished with a statement in writing by a solicitor requiring such information, of the name of the person on whose behalf he applies, and that, in such solicitor's opinion, the applicant is beneficially interested in such money or securities : (Ch. P. R. 1874, r. 91.) Rule 92 relates only to causes or matters on which the balances do not exceed 51 ; (see post, XI.) i. When a cause or matter has been inserted in the list .... the fact shall be stated in every petition or summons effecting any money or securities to the credit of such cause or matter. Ii) cases in which the money or securities effected by such petition shall together amoimt to or ' exceed in value 5001., a copy of such petition, and notice of all pro- . ceedings in court or at chambers shall (unless the court otherwise directs), be served on the official solicitor of the court, who shall be at liberty to appear and attend thereon : (Ch. P. A. 0. 1874, r. 14.) Y. REQUESTS AND OTHER DOCUMENTS. 1. Poem of Requests. Every order or request that may be left at the Chancery Pay Office, and every , statutory declaration or other document required to be retained there for tlie purpose of carrying into effect an order, may be printed or written, and shall have printed or written thereon the name and address of a soHcitor : (Oh. P. R. 1874, r. 93.) 2. Petitions and Summonses. "As to references to the record, see' post, VI. As to statements whether legacy or succession duty has been paid, see Ch. P. A. O. 1874, r. 11, post,\YU. As to statements and service required where the money to be dealt with has been entered in the triennial list, see sup., IV. 3. Certificates. [See post, VI., XVI., XVIII.] 4. Indexing and Office Copies. An index shall be made and kept in the [Central] Office of the court of all documents by these rules directed to be filed there : (Ch. P. R. 1874, r. 95.) The duplicate orders or records to be deposited with the clerks of entries pursuant to rule 18 of the Chancery Punds Consolidated Rules, 1874, shall annually (or oftener if the senior registrar shall direct) be bound up in volumes oi convenient size, and indexed and transmitted to the Report Office in the same manner as written orders are now bound up, indexed, and transmitted, and written office copies or extracts may be made there- from, subject to the existing regulations relating thereto : (Ch. P. A. O. 1874, r. 18.) See also as to offices copies, post, VII.' Payment into and out of Court. 633 VI. REFERENCE TO RECORD. No order in a cause Shall be passed or entered .... no certificate in a ■cause of a dhief clerk, or of a [taxing officer] of the court . . . . signed or filed .... no petition in a cause .... answered . . . . jao summons in a cause .... issued .... no affidavit made in a cause .... filed, untU the same respectively be either marked [on the first page] with the reference to the record ... or be inscribed with a note indicating that the cause was commenced prior to the 2nd November, 1852, and the correctness of such reference may be required to. be authenticated by the ofGlcial seal of the [Central Office] being impressed on every such doeu<- ment : (Ch. F. A. 0. 1874, r. 17 ; J. A. 1879.) yn. ORDERS OF COURT. 1. Refekence to Recokd. [See sup., VI.] 2. Title of^ause and of Account. Every order directiug money or securities'to be brought into court shall istate in the body of such order the title of the cause or matter, and the separate account, if any, to the credit of which such money or securities ^re to be placed : (Ch. F. R. 1874, r. 7.) Every order directing money or securities in court to be dealt with shall, except in the case of orders made in the matter of the suitors of the court, be intituled in. the cause or matter (but not in any separate account therein), to the credit of which such money or securities shall be placed in the books at the Chancery Pay Office ; and every such order shall state, in the body of such order, and not merely by reference to the title of it, the ■exact title of the cause or matter and separate account, if any, to the credit of which the money or securities dealt with shall be standing : {Id.) The length of the title of any account hereafter directed by an order, or requested pursuant to an Act of Parliament or otherwise, to be raised in the books at the Chancery Pay Office shall not exceed thirty-six words, •exclusive, in the case of a separate accoulit in a cause or matter, of the title of the cause or matter in which such separate account is raised : (Ch. F. R. 1874, r. 94.) [But] if a sufficient reason be assigned to the satisfaction of the regis- trar for extending beyond thirty-six words the title of an account directed by an order to be raised, such title may be so extended ; and the registrar shall in such case add to the direction to raise such account the words " notwithstanding rule 94;" and .... if a'sufficient reason be assigned, to the satisfaction of the Chancery Paymaster, for so extending the title •of an account requested to J)e raised, such title may be so extended ; and the Chancery Paymaster shall in such case add the said words to the ■direction under the authority of which such account is to be raised : {Id.) In such title four figures shall be reckoned as one word : {Id.) This rule shall not apply to any account which has been directed to be raised by an order dated before the 7th day of January, 1873 ; and any account directed to be, raised by an order dated since the 7th day of' January, 1873, but before the commencement of these rules, shau be deemed to have been properly entitled notwithstanding the length of the title of such account may exceed thirty-six words : {Id.) 3. Directions and Tabitlab Statement. (a) Generally. Directions in orders to be acted upon by the Chancery Paymaster shaU, so far as practicable, be expressed in or by reference to a schedule or "tabular statement subjoined to the order : (Ch. F. R. 1874, r. 9.) 634 Payment into and out of Gmirt. , Each separate direction in such order^ shall (as far as may be) be con- tained in a distinct paragraph; and [subject to the rule, as to dates and sums mentioned ^os^], in all other respects such orders shall be printed ib such form and manner as the registrars shall deem expedient : (Ch. F. R. 1874, r. 15.) (6) As to Legacy or Succession Duty. ETery order directing the payment of money or the transfer or delivery of securities in court, in respect of which duty shall be payable to the revenue under the Acts relating to legacy or succession duty, shall, unless such order expressly provides for the payment of the duty, also direct the Chancery Paymaster to have regard to the circumstance that such duty is payable ; and when by an order money or securities, in respect of which such duty may be chargeablOj are directed to be invested, carried over, or placed to a separate account, the words "subject to legacy duty" or " subject to succession duty," as the case may be, shall be added in the order to the title of the accoimt thereby directed to be raised : (Ch. F. B. 1874, r. 14.) Every order providing for payment, out of money or the proceeds of securities in court, of any duty payable xmder the Acts relating to legacy or succession duty shall direct that the amount of such duty shall, upon * the requisition of the Commissioners of Inland Revenue, be transferred to the account of the Receiver- General of Inland Revenue at the bank : (Ch. E. R.,, 1874, r. 14.) 4. Sums and Dates. Sums occurring in the body of every such order shall be expressed in words ; dates occurring therein, and any sums in [the] schedule or tabular- statement .... shall be expressed in figures instead of words : (Ch. P. R., 1874, r. 15,) 5. AiioTTNTS, Pbecbntagb, &c. ' Every order directing money or securities in court to be dealt with, shall express the exact amount of money or securities to be dealt with whenever it can be ascertained, and the amount of money or securities standing in the books at the Chancery Pay Office, at the date of such order, to the credit of the cause or matter to which the money or securities to be dealt with may be placed, and not 'merely by reference to another order (except where the name of one person is ordered to be substituted for the name of another person to whom a payment, transfer, or delivery of money or securities has been directed by a former order : (Ch. E. R., 1874, x- 8.) - If the money or securities, or the dividends on securities, to be so dealt with under any such order, shall not be in court at the date thereof, the source from which such money, securities, or dividends will be derived shall be stated : (Ch. F. R., 1874, r. 8.) In every case the exact amount of money or securities in couri; to be dealt with by the Chancery Paymaster, shall be expressed in an order or in a chief clerk's certificate, or in a certificate of a taxing master (unless suchi money be (1) Payable as legacy or succession duty ; or be (2) Described as dividends to accrue on securities in court, or to be brought into court ; or, (3) [Described] as interest to be credited in respect of money on deposit ; (4) [Described] as money to arise by the realisation of securities ; or, (5) [Described] as the residue of such dividends, interest money, or securities respectively, after deducting an amount expressed in an order Payment into and out of Court. 635 or in such a certificate, or an amount directed to be realised unascertained at the date of the order directing the realisation thereof ; or (6) [Described] as an aliquot or proportionate part of such dividendfe, ■ interest, money, securities, or residue, respective^ : (Oh. F. R., 1874, r. 8.) As to how the sums are ascertained, see post, XV. Where the actual amounts to be dealt with cannot be ascertained at the date of the order, the aliquot or proportionate parts to be dealt with may- be stated in [a] schedule or tabular statement [to be subjoined to the order] in words at length, but the total amount of the securities or money, or where the order does not dispose of the whole then the number of the aliquot or proportionate parts dealt with in any such schedule |^nst] be stated in words at length in the mandatory part of the order : (Oh. F. E..,' 1874, r. 9.) When interest is payable in respect of any money in court directed by an order to be dealt with by the Chancery Paymaster, the order shall state the rate per centum at which, and (if the day to which interest is payable can be fixed by the order) the day inclusive to which such interest is completed, and the amount of such interest : (Oh. F. R., 1874, i-. 10.) If the day to which interest is to be computed cannot be fixed by the order, the day from which (exclusive) such interest is to be computed [must] (except in the case of a computation of subsequent interest from the foot of the certificate of a chief clerk . . . .) be stated in the order, and such interest may be directed to be computed and certified by a chie:^ clerk . . . or (where the computation is dependent upon the taxation of costs) by a taxing master : (Oh. F. R., 1874, r. 10.) When the day for payment cannot be fixed by the order, and the interest is not directed to be certified .... the order may direct the interest to the day for payment to be ascertained by an affidavit, or by a statutory declaration : (Oh. F. R., 1874, r. 10.) 6. Time of Pebiodicai Payments. [See Ch. F. R. 1874, r. l^,post, XIII., 1.] 7. DESCBIPTIOlf OP DOCXTMENTS TO BE ExECITTED. Whenever the dealing by the Chancery Paymaster with money or- securities in court is, by an order, made contingent upon the execution of some document, the document shall be described, and the parties thereto by whom it is to be executed shall be named in an order, or in a certificate of .... a chief clerk : (Ch. F. R. 1874, r. 11.) As to verifying the documents, see post, XVI. 8. Dbsceiption of Peesons. Persons who are directed by an order to pay or transfer into, or deposit in court any money or securities, and persons to whom money or securi- ties are directed to be paid, transferred, or delivered, and persons for or during whose lives or other less period payments are directed to be made, shall be described in the order, or in a certificate of a chief clerk . -. . . or a taxing master, by name, and not merely as plaintifEs or petitioners, or the like ; unless such payments, transfers, or deliveries are to be made to trustees or other persons in succession, or to representatives when no probate or letters of administration have been taken out at the date of such order or certificate : (Oh. F. R. 1874, r. 12.) Bodies corporate, companies, or societies, shall be described by their proper titles or designations ; and the Christian names and surnames or titles of honour of all other such persons shall be expressed in words at length and without abbreviations in such orders or certificates, the Christian names preceding the surnames : (Ch. F. R. 1874, r. 12.) When a person, to whom payment of money in court, or transfer or 636 Payment into and out of Court: delivery of securities in court, is directed, shall appear to be entitled thereto as real estate, or as trustee, executor, or administrator, or other- wise than in his own right or for his own use, the fact that he is entitled to the same as real estate, or the character in which he is so entitled, shall be stated in the order or in the certificate of a chief clerk or of a taxing master . . . . : (Ch. F. B. 1874, r. 53.) When money in court is payable to the Receiver-General of Inland Revenue (in any case not provided for by rule 57), the National Debt Commissioners, the Ecclesiastical Commisssioners for England, the official trustees of charitable funds, the official liquidator of any company, or any other official persons for whom an account is kept at the bank, the ord^r shall direct the amount so payable to be transferred, upon the requisition of the official person to whom it is due, to the proper account ((^citing it), at the bank, of such official persons : (Oh. F. R. 1874, r. 41.) 9. Deawing up. Every order .... to be acted upon by the Chancery Paymaster {except reports of the Masters in Lunacy, confirmed by fiat, and orders drawn up by the Registrar in Lunacy), shall be drawn up by ... . the legistrars of the court : (Ch. F. R. 1874, r. 15.) Besides the documents usually left with the registrar on his making the order, whenever any fund in court is to be dealt with, the Paymaster- General's certificate, and if the funds are restrained by any order, the restraining order, or an office copy thereof (Ch. Reg. Mar. 15, 1860, r. 16) ; where payment out of court is ordered to legal representatives, the probate or letters of administration stamped for a sufficient amount (r. 17) ; if ^;he order deals with any purchase money, a consent brief for the purchaser, or an affidavit of notice to him of the intended application of the purchase money, and that the conveyance has been executed and delivered to him (r. 30) ; where the order deals with any money paid into court by the promoters of any public undertaking to the credit of such undertaking not standing to any separate account, the Paymaster- General's certificate of the payment into court of the sum sought to be dealt with, and also the Paymaster-General's certificate of the payment into court of the sum sought to be dealt with, and also the Paymaster- General's certificate of the fund in court to the credit of the undertaking ; aild when the order directs the carrying over of the money to a separate account, or payment of the same out of court to any person entitled thereto, an affidavit of the petitioner verifying the petition, and negativing any adverse right or claim, in the terms of the C- O. 34, r. 3, and any other evidence used at the hearing : {Id., r. 34.) 10. Pbinting and Passing. > Every order to be acted upon by the Chancery Paymaster (except the said reports [see «itp.]), shall either be wholly printed, or in cases in which printed forms can be used, may be partly printed and partly written; provided that the registrars may issue any such orders in writing, if of an urgent nature : (Ch. F. R. 1874, r. 15.) Every order that may be left at the Chancery Pay Office, may be printed or written, and shall have printed or written thereon the name and address of a solicitor : (Ch. F. R,. 1874, r. 93.) The printing of orders shall be under the control of the registrars, and the orders shall be printed on cream wove, machine made, foolscap folio paper, 181b. per mill ream, or thereabouts, in pica type leaded, with an inner margin about th^ree-quarters of an inch wide, and an outer margin about two inches and a half wide, except, as to the schedule or tabular statement in any such order contained or referred to, which shall be Payment into and out of Guwrt. 637 printed in such smaller type as the registrars shall direct : (Ch. P. E,., 1874, r. 15.) jr B K The registrars shall cause a duplicate of every printed or partly printed order to be made at the same time with the original; and the original order shall be passed by a registrar in the usual way, and stamped with his ofScial seal on every leaf thereof: (Ch. F. R. 1874, r. 18.) 11. Entry. Every [such order] .... shall be ... . entered with the registrars- of the court : (Oh. F. R. 1874, r. 15.) The original order .... stamped with [the] seal [of the registrar, shall] be transmitted by him to the clerk of entries with the duplicate : (Oh. F. R. 1874, r. 18.) 12. Filing Dttplicate. The duplicate order shall be retained and filed by the clerks of entries as the record : (Oh. F. R. 1874^ r. 18.) 13. Delivbking out Okiginai,. The original order when examined and stamped by [the clerks of entries], and markeui with a reference thereon to the duplicate or record so filed, shall be returned to the registrar to be delivered out to the solicitor of the party having the carriage of the order : {Id.) 14. Amendment of Feinted Okdeks. Olerical mistakes or errors arising from any accidental slip or omission in such printed orders may be amended in writing ; but no amendment shall be made in any order, to provide for a new state of circumstanees arising after the date of the order; nor shall any order be amended for the purpose of extending the time thereby limited for making any pay- ment, or transfer into, or deposit in court of money or securities ; and every such amendment shall be stamped by the clerks of entries, or by the [Masters of the Supreme Court], with their official seal, as evidence that the duplicate or record has been also amended : (Oh. F. R. 1874, r. 16 ; J. A. 1879.) 15. Copies and Indexing. The registrars may cause to be printed additional copies of printed orders, or printed portions of orders, according to tl;ie requirements of the parties or their solicitors, and such additional copies shall be transmitted to the report office ; and when such printed or partly printed orders hav& been passed and entered, such additional copies upon being duly com- pleted and signed or certified by one of the [Masters of the Supreme Court], and authenticated in the same manner as written office copies of orders, or copies certified pursnant to the Act of 14 & 15 Vict. c. 99, s. 14 .... may be issued as office or certified copies : (Ch. F. R. 1874, r. 19.) [And see sup., V., 4.] Vin. PAYMENT AMD TRANSFER IN. 1. What Seoubities, &c., Received. The [Masters of the Supreme Court] shall not receive into their custody effects of the suitors consisting of jewels or plate, or other articles of a like nature, or negotiable securities: (Ch. P. A. 0. 1874, ,r. 16; J. A. 1879.) The following securities may be brought in : Those passing by delivery, as Exchequer Bills ; Those transferable in books, as Consols ; Those transferable by registered deed, as Railway Stock : (Seton, 84.) Those passing by delivery are deposited ; the others are transferred :, {Id.) 638 Payment into and out of Court. Foreign stocks and securities, plate or jewels, and other specific articles of value unascertained, are put in boxes indorsed with the short title 'of the cause to which they belong, and are deposited at the bank with the priivity of the Chancery Paymaster, biit neither the Chancery Paymaster nor the bank take any cognisance of the contents of such boxes ; and it it not the practice of "the bank to receive the interest on such securities : (Seton, 84.) ■2. Beinging Monet in Withoot Dieection (Suspense Account). When it is desired to bring money into court without waiting the time necessary to obtain a direction for the bank to receive such' money, it may "be lodged at the bank to the credit of the Chancery Suspense Account : (Ch. F. R. 1874, r. 31.) [The money is so lodged] upon a written application, signed by the jerson desiring to lodge the same, or his solicitor, and addressed to the Dank, specifying the amount, and the title of the cause or matter .... in respect of which it is desired to be lodged : (Id.) Upon such lodgment being made one of the cashiers of the bank '[gives] a certificate that the amount has been lodged to the credit of the Chancery Suspense Account : (Id.) In every case the person making such lodgment, or his solicitor shall forthwith bespeak [a direction of the Chancery Paymaster to the bank to receive the money, and place the same to the credit of the Chancery Pay Office Account], and pnust] produce such direction and certificate at the bank, for the purpose of having the money so previously lodged transferred to the Chancery Pay Office Account, and phiced in the books at the Chancery Pay Office to the credit of the cause or matter mentioned in such direction, and [a] receipt .... [is] thereupon .... given for such money : (Ch. P. R. 1874, rr. 31, 28.) > 3. Beinging in Monet, &c., without Oedee. (a) Where Allowed. Money and securities may [in certain cases] be paid or transferred Into, or depoiSited in court, and be placed in the books at the Chancery Pay Office to the credit of a cause or matter .... without an order: (Ch. F. R. 1874, r. 25.) Where any action is brought to recover a debt or damages, any defendant may at any time after service of the writ, and before or at the time of delivering his defence ..... pay into court a sum of money by way of satisfaction and amends : (O. XXX., r. 1 ; and see Pleading.) [Payment, &c., may be] so made to a separate account [when] such separate account has been directed to be opened by an order : (Ch. P. R., 1874, r. 25.) Payment, &c., may be so made to a security for costs account without any order : [Id.) Dividends payable through default of obedience to an order for payment may be so made : (Ch. F. R. 1874, r. 27.) - [Rule 25] [does] not apply to money or securities directed by an order to be' paid or transferred into, or deposited in court [or] to. money or securities payable, or transferable into court, in pursuance of an Act of Parliament or a general order of the court, by which some particular authority is required to enable the payment, transfer, or deposit to be made : (Ch. P. R. 1874, r. 25.) (6) How Payment made. [Such payment is made] on a direction to be obtained from the Chancery Paymaster, upon the written request of the person desirous of so paying, transferring, or depositing, or of his solicitors : (Id.) Payment into and out of Court, 639 Every request for a direction for payment or transfer into, or deposit in, court, of money or securities to be placed to the credit of a cause commenced since 1st November, 1852, shall contain the title of the cause and the reference to the record as cited in rule 2 [see sup., I.], and the correctness of such reference shall be authenticated by the official seal of the [Central Office] being impressed on such request : (Oh. F. R. 1874, r. 26 ; J. A., 1879). (e) Filing Bequest. [The] request shall be filed in the Report Office : (Ch. F. R., 1874, r. 25.) (d) Receipt. The bank receipt is given, as in other cases of payment in (Ch. F- R- 1874, r. 28 [see- post]) and the direction endorsed with the bank's certificate is forwarded to the Ohanceiy Pay Office : (Ch. F. R. 1874, rr. 28,29; see post.) [Where a sum is paid in by a defendant under Order XXX.], such sum of money shall be paid to the proper officer, who shall give a receipt for the same : (O. XXX., r. 2.) (e) Notice to Parties. A person making such transfer, payment, or deposit upon request to the credit of a cause or matter [must] forthwith give notice thereof to the solicitors on the record for the parties to the cause, or in' case of a matter, to the persons interested, if known, or to their solicitors, if any, stating in such notice what the money or securities comprised in such transfer, payment, or deposit represent, and for what purpose such transfer, payment or deposit has been made, and such notices may be sent by post : (Oh. F. A. O. 1874, r. 4.) n such payment be made [by a defendant] before delivering his defence [see sup. (a)] the defendant shall thereupon serve upon the plaintiff a notice that he has paid in such money and in respect of what claim, in the form No. 5 in the Appendix B. [to the Rules of 1875] : (O. XXX., r. 2.) 4. Obdek foe PATME:5rT, &c., in. (a) Reference to Record. [See sup. VI.] (6) Titles of Cause and Account. [See Oh. F. R. 1874, rr. 7, 94, set out sup. VII. 2.] (c) Source from which Derived. If the money or securities, or the dividends on securities to be ... . dealt with under [the] order shall not be in court at the date thereof, the source from which such money, securities or dividends will be derived, . shall be stated : (Oh. F. R. 1874, r. 8.) , (d) Directions, Drawing up, &e. [see swp., VII. and Jttdgment]. (e) Providing for Investment. Usually application is made by some party interested that a direction may be inserted in the order authorising payment in for the investment of the money when paid in, and for the investment and accumulation of future income, if not otherwise disposed of : (Dan. 1639-40.) 5. Payments, &c., under Obdees. (a) May he Made before Service or After Time Limited. A person directed by any order to make a payment or transfer into, or deposit in, court, shall be at liberty to make the same without further order, notwithstanding the order may not have been served, or the tiine 640 ' Payment into and out of Court. thereby limited for making such payment, transfer, or deposit may have expired : (Ch. F. R. 1874, t. 27.) (6) Interest or Dividends through Default payable on Bequest. If any further sum of money has by reason of such default [in obedi- ence to an order] become payable by [the person making default] for interest, or in respect of dividends, he shall be at liberty to pay into court such further suin upon [the written request of himself or his solicitor] : iCh. F. R. 1874, r. 27.) As td the request, see sup., 3. (c) Notice to Parties. A person who [makes] a transfer or payment of money or securities into court, or a deposit of securities in court, as [aforesaid], shall forthwith give notice thereof to the solicitors of the persons upon whose application the order directing such transfer, payment, or deposit was made, or to such , persons, if they have no solicitor ; or if the order was made on the appli- cation of the person making such transfer or payment to the solicitor of the other parties appearing on the application: (Oh. F. A. O. 1874, r. 4.) / (d) Consequences of Default not Prejudiced. Any such subsequent payment, transfer, or deposit shall not affect or prejudice any liability, process, or other consequences which such person may have become subject to by reason of his default in making the same within the time so limited : (Ch. F. R. 1874, r. 27.) (e) Extending Time. The time for making any such payment, transfer, or deposit, may be, alsoj if necessary, extended by a supplemental order, referring to the former order, but without repeating the directions for such payment, transfer, or deposit : (Ch. F. R. 18174, r. 27.) Such supplemental order may be made on an application to the judge at chambers : {Id.) (/) Where Order necessary for Defendant Pleading Payment inj "Wbere any action is brought to recover a debt or damages any defen- dant may .... by leave of the court or a judge at any later time [than delivery of his defence] pay into court a sum of money by way of satis- faction or amends : (O. XXX., r. 1 ; and see Pleading.) [g] Bow Payment to he made under Orders Generally. (1) To be with Paymaster's Privity. When money or securities are to be paid into or deposited in court, such payment or deposit shall be made with the privity of the Chancery Pay- master : (Ch. F. R.' 1874, r. 28.) (2) Direction to Bank. The Chancery Paymaster [issues] a direction to the bank to receive and place the [moneys or securities] to the credit of the. Chancery Pay Office account : (Jd.) Such direction shall specify the title of the cause or matter to which [the] money or securities are to be placed in the books at the Chancery Pay Office : {Id.) (3) Receipt. Upon [the] money or securities being paid or deposited, the bank shall cause a receipt to be given for the same : {Id.) [Where a defendant pays in under O. XXX., see sup. (/)] such sum of money shall be paid to the proper ofiicer, who shall give a receipt for the same : (O. XXX., r. 2.) (4) Bank Certificate. [The bank] .... send [the Chancery il^aymaster's] directions to the Payment into and out of Court. 641 Chancery Pay Office, with a certificate thereon, that the money or securities therein specified haye been received and placed to the credit of the Chancery Pay Office account : (Oh. P. R. 1874, r. 28.) (5) Filing Paymaster's Certificate. When [the] direction .... with [the] certificate thereon [is] received at the Chancery Pay Office, the Chancery Paymaster [files] a certificate of such payment .... [stating] the title of the cause or matter to which such amount of money has been placed in the books at the Chancery Pay Office ; and an office copy of such certificate [is] evidence of the pay- ment : (Ch. F. R. 1874, r. 30.) {h) How Transfer made under Order. (1) To be with Paymaster's Privity. When securities are to be transferred into court, such transfer shall be made with the privity of the Chancery Paymaster : (Ch. F. R. 1874, r. 29.) (2) Direction for Transfer. The Chancery Paymaster [issues] a direction for the transfer to be made to the account of the Paymaster-General, and on behalf of the court : Such direction shall specify the title of the cause or matter to which [the] securities are to be placed in the books at the Chancery Pay Office : {Id.) (3) Bank Certificate Upon such securities being so transferred the bank .... body corporate, or company in whose books the transfer [has been] made or registered, sends [the Chancery Paymaster's] direction to the Chancery Pay Office, with a certificate thereon that the securities therein specified have been transferred to the said account : {Id.) (4) Filing Chancery Paymaster's Certificate. Where the certificate of the bank, body corporate, or company, that the amount of money or securities has been so paid, transferred, or deposited, is received by the Chancery Pay Office, the Chancery Paymaster files a certificate of such payment, transfer, or deposit [stating] the title of the cause or matter to which such amount of money or securities has been placed in the books at the Chancery Pay Office ; and an office copy of such certificate of the Chancery Paymaster shall be received as evidence of the payment or transfer into, or deposit in court, therein mentioned, having been made : (Ch. F. R. 1874, i. 30.) (i) Unascertained Money. Money, dividends, or interest directed by an order to be paid into court, the amount of which cannot be ascertained at the date of the order, may be ascertained [like interest on money in court (see post, XV.) or by produetion of an affidavit or statutory declaration ascertaining the amount] : (Ch. F. R. 1874, rr. 8, 86.) The statutory declaration must be filed in the Central Office, when the Chancery Paymaster considers it necessary : {Id.) 6. Cebdit or Monet, &c. Stock should be transferred to " the acconnt of the Paymaster-General for the time being on account of the Court of Chancery : " (Seton, 84.) All securities from time to time transferred, standing or deposited into, in, or to the acconnt of the Paymaster-General .... [are] held by [him] in trust in the several causes and matters in which such securities are transferred, standing, or deposited respectively : (Ch. F. A. 1872, s. 10.1 The bank .... [is' to] receive all dividends accruing due oij all T T 642 Payment into and out of Court. securities .... standing to the credit of the Paymaster- General, of- which a certificate has been sent to them by [him] ,and .... any principal money payable in respect of any such securities ; (Oh. P. A. 1872, s. 10.) The certificate [is] a sufficient authority : (Id.) AH [such] money [is placed] to the credit of the Paymaster-General for the time being, on behalf of the court: (Id.) The bank's receipt is a good discharge : [Id.) Any principal money or dividends received by the bank in respect of securities standing to the Chancery Pay Office account shall be placed in the books at the Chancery Pay Office .... in the case of principal moneys to the credit of which the securities whereon such money arose were standing at the time of the receipt thereof, and in the case of dividends to the credit to which the securities whereon such dividends accrued were standing At the time of the closing of the transfer books of such securities previously to the dividends becoming due : (Oh. P. B. 1874, r. 35.) 7. Payment, &c., ibt Undee Pakticular Statutes. (a) Judicature Acts [Defendant Pleading Payment) [see swp., 3, 4]. (6) Trustee Belief Act [see Tbttstbes]. (c) Lands Clauses Act [see Lands Olattses Act]. (d) Copyhold Acts [see Copyhold Acts]. (e) Pa/rliamentary Deposit Act. (1) Warrant. [Where] any sum of money is required by any standing order of either House of Paruament to be deposited by the subscribers to any work or undertaking which is to be executed under the authority of an Act of Parliament, if the director or person, or directors or persons having the management of the affairs of such work or undertaking, not exceeding five in number, shall apply to one .... of the clerks of the Parliaments as to ihoney required by any standing order of the [House of Lords], or to one of the clerks of the Private Bill Office .... ([as to] money required by any standing order of the Commons), .... to be deposited, [such clerk may], by warrant or order under his hand, .... direct that such sum of money shall be paid into the Bank of England in the name and vrith the privity of the Paymaster-General : (9 & 10 Vict. c. 20, s. 2.) (2) Payment in. The person or persons named in such warrant or order, or the survivors or survivor of them, [may] pay the sum mentioned in such warrant or order in the name' and with the privity of the officer or person in whose name such sum shall be directed to be paid by such warrant or order, to be placed to his account there, ex parte the work or undertaking mentioned in such warrant or order pursuant to the method prescribed by any Act .... [and rules] regulating moneys paid into [court] : (9 & 10 Vict. c. 20, s. 3.) (3) Transfer of Stock in Lieu of Payment in. [If such directors, &c.] have previously invested in the Three per Centum Consolidated or the Three per Centum Reduced Bi^nk Annuities, Exchequer BUls or other Government securities, the sum or sums of money [so] required .... to be deposited, .... the person or persons named in such warrant or order, or the survivors or survivor of them, [may] deposit [or transfer] such securities in the bank .... in lieu of payment of so much of the .... money required to be deposited .... as the same Exchequer bills, &c will extend to satisfy at the price at which the same were originally purchased by [such] persons, .... such price to be proved by Payment into and out of Court, 643 production of the broker's cei-tifioate of such original purchase : (9 & 10 Vict. c. 20, s. 3.) (4) How long Money, &o., to remain in. Every such sum so paid in, or the securities in or upon which the same may be invested .... or the stocks, funds, or securities authorized to be transferred or deposited in lieu thereof .... shall .... remain [in court] untU the safae, with aU interest and dividends, if any, accrued thereon, shall be paid out of such bank, in jjursuance of [the] Act : (9 & 10 Tict. c. 20, s. 3.) (/) Railway and Tramway {Private) Bills. Where a Railway or Tramway Bill is promoted by an existing com- pany, a clause is. to be inserted in the biU, providing that a penalty of 501. a day on non-completion within the time limited until the line is opened for traffic, or until the penalty amounts to 51. per cent, on the estimated cost of construction, is to be paid into court, except in certain cases provided for in the standing orders of the Houses of Parliament : {Seton, 1457-8, citing S. O. H. L . (1876), 114, 117 ; S. O. H. 0. (1877) 158.) (g) Tramways Act. After a provisional order is ready, and before the same is delivered by the Board of Trade, the promoters, unless they are a local authority, shall .... pay .... as a deposit .... not less than 4Z. per centum on the amount of the estimate by the promoters of the expense of the con- struction of the tramway, or deposit .... any security of the prescribed nature the then value of which is not less than such sum of money : (33 & 34 Vict. c. 78, s. 12.) The Board of Trade may issue their warrant to the promoters for .... payment into court, which warrant shall be a sufficient authority for the persons therein named, or the majority or survivors of them, to pay the money therein mentioned into . . . court .... or into the bank therein mentioned, in the name and with the privity of the officer therein mentioned (if any) : (Board of Trade Rules, 24th July, 1873, r. 22.) The warrant [authorizes] the [Paymaster-General] to issue directions to [the] bank to receive the [money] to be placed to his account there according to the method prescribed by statute, or general rules or orders of court, or otherwise, for the time being in force .... and without fee or reward : (B. T. R. 22). [When securities are brought in] the Board of Trade shall vary their warrant accordingly, by directing the transfer or deposit of such amount of stocks, funds, securities, or Exchequer bUls, by the persons therein named : (B. T. R. 22.) After the provisional order is ready, and before the same is delivered by the Board of Trade, the promoters, if they are not a local authority, shall pay, as a deposit, a sum of money not less than 61. per centum on the amount of their estimate of the expenses of the construction of the tramway .... when the tramway, or any part thereof, will be situate in England, into the [Chancery Division] to the credit of the particular tramway : (B. T. R. 21.) In lieu, wholly or in part, of the payment of money, the projnoters may bring into court, as a deposit, an equivalent sum of Bank Annuities, or of any stocks, funds, or securities on which cash, under the control of the .... court, is, for the time being, permitted to be invested, or of Exchequer bills, the value thereof being taken at the price at which the promoters originally purchased the same, as appearing by the brokei^'s certificate of that purchase : (B. T. R. 22.) T T 2 644 . Paymerd into and out of Court. (h) Legacy Duty Act. [See Ljbgact Dxtty Act.] {v} Railway Construction Facilities Act. After the certificate is ready to be issued, and before the same is issued the promoters, unless they are a previously existing company possessed of ,a railway open for public traffic shall .... pay as a jdeposit a sum of 9>l. per cent, on the estimate' of construction: (27 & 28 Vict. o. 121, s. 34.) Th6 Board qf Trade may issue their warrant to the promoters (to be Taried in case securities are brought in) which is a sufficient authority for the persons therein named, or the survivors to pay the money in, and for the officer to receive the same to be placed to his account there, ex parte the railway thereiii mentioned, and without fee or reward : (ss. 35, 36.) In lieu wholly or in part of payment of money, the promoters mayliriug into court an equivalent sum of bank annuities, or of any. stocks, funds or securities on which cash under the control of the court is for the time being permitted to be iavested, or of Exchequer biUs (the value thereof being taken at the price at which the promoters originally purchased the same, as appearing by the broker's certificate of that purchase) : (s. 36.) IX. PLAOIK& MONET IN aOURT ON DEPOSIT. 1. Whbeb Money Placed on Deposit. Save as otherwise provided by [the rules] all money in court [will, subject to the Act and Rules], be placed on deposit : (Oh. P. A., 1872, s. 14.) [In the case of money paid in under the Trustee Relief Act by the affidavit requested to be invested in Three per cent. Consols, Annuities, or Reduced Annuities, and amounting to 101., but under 40L] the Chancery Paymaster shall .... as soon as conveniently may be, place such money on deposit without a request for that purpose, unless such Affidavit contains a statement that it is deemed unnecessary to place such money on deposit, or unless notice in writing be left at his office of an order having been made, or of an intended application to the court afEecting such money securities or dividends : (Ch. P. R., 1874; r. 66.) Money will not be placed on deposit : (a) If a direction in an order dealing with money in court otherwise than by directing it to be placed on deposit (whether such money has bean paid in before or since the commencement of the Court , of Chancery Punds Act, 1872) is brought under the notice of the Chancery Paymaster : (Ch. P. R., 1874, r. 69.) (6) If a request in writing by a solicitor acting on behalf of a person claiming to be entitled to or interested in money in court, paid in after commencement of the same Act, that such money may not be placed on deposit, is left at the Chancery pay office : (id.) (c) Money in court, paid in pursuant to 9 & 10 "Vict. c. 20, [the Parliamentary Deposit Act], or of any Act amending the same shall not be placed on deposit : "(Ch. P. R. 1874, r. 72.) , (d) piloneys in court paid into the Appeal Deposit Account, shall not be ' placed on deposit : (Id.) (e) Sums under lOl. A less sum of money than 101. shall not remain or be placed on deposit ; and if the amount of money on deposit to the credit of a cause or matter at the commencement of these rales is. less than 101. it shall be withdrawn from deposit at or as. soon as conveniently may be after such commencement, with- out a request for that purpose : (Ch. P. R., 1874, r. 73.) The person making such request may at any time withdraw the same. Payment into and out of Court. 6^5 and by a like request in writing require the money to be placed on deposit : (Ch. F. R. 1874, r. 69.) J if t 2. Where Request Necessary. An application or request is not generally necessary in the case of money paid in after the commencement of the Chancery Funds Act : (Oh. F. A. 1872, s. 14.) Subject to any exceptions in [the] rules, money, In court paid in before the [7th Jan. 1873], and not already placed ou deposit (other than money paid in pursuant to the Copyhold Acts, or the 69th section of the L. C. C. A. 1846). Arising by the sale, conversion or payment off of securities in court. Dividends accming on securities in court. Money brought over from the credit of some other cause or matter, or otherwise placed, either before or after such [date], to the credit of a cause or matter in the books at the Chancery Pay, Office, shall be placed on deposit on request .... and, subject as aforesaid, all money hereafter to be paid into court shall be placed on deposit with- out a request for that purpose : (Oh. F. R. 1874, r. 68.) When an order .... directs the .... placing on deposit subject to iTile 71 [as to which see post, 5], of money in court, or dividends to accrue on securities in, court, the Chancery Paymaster may defer giving effect to such direction until a request in writing to give effect thereto has been left at the Chancery Pay Office, but it shall be the duty of the solicitor for the person having the carriage of such order .... to leave it, and such request at the Chancery Pay Office without unnecessary delay : (Oh. F. R. 1874, r. 37.) No request is needed in case of moneys paid in under the Trustee Relief Act, under the circumstances mentioned in rule 66 : (see Oh. F. R. 1874, r. 66, svp., 1.) [The request must 'be] signed by [the] person claiming to be interested in such money, or his solicitor : (Oh. F. R. 1874, r. 68.) 3. When Deposit Made. The placing on deposit [is not to] be deferred beyond the 15th or the last day of the month in which it [is] paid into court, whichever day shall first happen after such payment, or in the case of money paid into court on the kst day of the month, the placing on deposit [is not to] be deferred beyond the 15th day of the following month ; and when a request to place money in court on deposit [is] left at the Chancery Pay Office, the money [is] [except in the case of conversion of 31. per Cent. Consols Reduced, or New 31. per Cents, of not less than lOOOi.l to be so placed on the day succeeding the day on which such requests shall be so left (which last named day shall be the date inserted in such request) : (Oh. F. R. 1874, r. 70.) 4. Monet feom Conversion op Government Secxtrities. When an order directs the conversion into cash of [31. per Cent. Consols Reduced, or New Annuities of not less than lOOOZ.], and the whole of the money arising thereby to be placed on deposit, such money shall be deemed to have been placed on deposit (without a request for that purpose) on the day on which such conversion shall be effected : (Ch. F. R. 1874, r. 71.) Applications .... for placing such cash on deposit .... may be made to [a judge] at chambers : (Ch. F. A. O. 1874, r. 13.) I 5. Stayjng Deposit on Request. In all cases, upon a request in writing by a solicitor acting on behalf of any person claiming to be entitled to or interested in money or securities 646 Paymeni into and out of Gowrt. in court, that such money or the dividends or interest accruing on any specified securities, or on any specified sum of money on deposit, may not be placed on deposit, .... being at any time left at the Chancery Pay Office, the Chanceiy Paymaster shall not place such money on deposit, or shall be at liberty to cease to place on deposit . . . ; any more dividends or interest accruing on such securities or sum of money on deposit, imtil he has had notice that the court has made some order in that behalf : (Ch. F. R. 1874, r. 67.) 6. WiTHDBA-WING MONET PROM DEPOSIT. When an order containing directions dealing with money on deposit, or with money which after the date of the order has been placed and still remains on deposit, is brought to the Chancery Pay Office, to have such directions acted on, such money, or so much thereof as may be sufficient to JDQeet the requirements of the order, may, on a request in writing signed by a person claiming to be entitled thereto or interested therein, or by a solicitor- acting on his behalf, be withdrawn from deposit and applied as directed by the order, subject, as to the investment of money, to rule 64 : (Ch. P. R. 1874, r. 74.) Rule 64 only prohibits deposit of sums under 40Z. except in cases under the Legacy Duty Act, or the Trustee Relief Act : (see post, X.) When money on deposit is by an order directed to be dealt with, such money shall be withdrawn from deposit as soon as may be after a request in writing for such withdrawal has been left at the Chancery Pay Office, and such withdrawal shall not be deferred beyond a week after the leaving of such request : (Ch. P. R. 1874, r. 75.) 7. Inteeest on Deposits. [a) On what Siims Computed. Interest .... [wiU] not be computed on a fraction of one pound: (Ch. P. R. 1874, r. 76.) (6) Rate. [Money when] placed on deposit [bears] interest at the rate of 2 per cent, per atnum, together with any income tax chargeable thereon : (Oh. P. A. 1872, s. 14.) (c) Periods for which Computed. Except as in this rule otherwise provided, interest upon money on deposit shall accrue by half calendar months, and shall not be computed for any less period. The periods from the 1st to the 15th of a month, both days inclusive, and from the 16th to the last day of a month, both days inclusive, shall, for the purpose of computing such interest, be reckoned as half calendar months ; and such interest shall begin on the first day of the half calendar month next succeeding that in which titer money is placed on deposit, and shall cease from the last day of the half calendar month next, preceding the withdrawal of the money &om deposit : Provided that when a sum of money in court amounting to not less than 500?. shall be hereafter placed on deposit, pursuant to a request ^in writing by or on behalf of a person claiming to he interested therein, and [remains] on deposit undealtwith until the 1st April or ihe 1st Oct, next succeeding the day on which it is placed on deposit,. interest shall begin on the day inclusive next succeeding such dav of placiusr on deposit: (Ch. P. R. 1874, r. 77.) ^ F B F (d) Crediting. Interest which has accrued for or during the half years ending: respectively the 31st March and the 30th Sept. in every year on money then on deposit shall, on or before the 20th days of the mouth& Payment into and out of Court. 647 respectively following, be credited by the Ohanoery Paymaster to the cause or matter to the credit of which such money, ahall be standing, on every such half-yearly day. And when money on deposit is withdrawn from deposit, except as to money withdrawn during the first fifteen days of the months of April and October respectively, the interest thereon which has accrued and has not been credited shall, at the time of withdrawal, be credited to the cause or matter to the credit of which the money is then standing : (Ch. P. R. 1874, r. 78.) (e) Calculation when Part Withdrawn. When money on deposit to the credit of a cause or matter consists of sums which have been placed on deposit at different times, and an order is made dealing with the money to the credit of such cause or matter, and part of such money has to be withdrawn from deposit for the purpose of executing such order, the part or parts of the money dealt with by such order last pla.ced and remaining on deposit at the time of such withdrawal shall, for the purpose of comiputing interest, be treated as so withdrawn, unless the order otherwise directs : (Ch. P. B. 1874, r. 79.) (/) Placing Interest on Deposits. Until a direction in an order dealing with interest on money on deposit, credited to a cause or matter as having become due on [the 1st April or 1st October] has been brought under the Chancery Paymaster's notice, such interest shall, when or so soon as it amounts to or exceeds lOZ., be placed on deposit, and for the purpose of computing interest upon it, it shall be treated as having been placed on deposit on the last half-yearly day on which any such interest became due : (Ch. P. &. 1874, r. 80.) As to staying the placing of interest on deposit, see swp. 5. Applications .... for dealing with interest on money on deposit may be made to [a judge] at chambers : (Ch. P. A. O. 1874, r. 13.) 8. Dividends. Dividends on securities in court .... directed or requested to bo invested .... when amounting to less than 40Z. half-yearly are [subject as mentioned ^osi, X.] to be placed on deposit : (Id., r. 64.) A request may be required : (see Ch. P. R. 1874, r. 37, swp.) 9. Moneys on Deposit aftbk Okder dealing theeewith. When subsequently to the date of an order dealing with money in court such money shall have been placed on deposit, or when dividends accruing subsequently to the date of an order under which such dividends are applicable shall have been placed on deposit, the same when withdrawn from deposit, and any interest credited in respect thereof, shall, unless the order otherwise directs, be applied in the same manner as such money or dividends would have been applied had the same not been so placed on deposit : (Ch. P. R. 1874, r. 60.) When an order directs money in court to be invested, and subsequently to the date of such order the money shall have been placed on deposit, interest accruing in respect of such money shall be applied in the same manner as the mvidends arising from such investment are directed to be appHed : (Ch. P. B. 1874, r. 51.) X. INVESTMENT. 1. Monet in Coitet to be Invested. Money in court .... which under any- general order of the Court of Chancery or rule under [the Chancery Funds Act, 1872] or under an order of the Court of Chancery [or Chancery Division] is required to be laid out in any particular investment [is, subject to the rules, to] be so laid out : (Ch. P. A., 1872, s. 15.) 648 Payment into and out of Oowrt. 2. Application. Where investment is not directed by the order for payment iu, and an order is necessary {saapost, 3), (a), an application by summons shonld be made : (Dan. 1640.) As to marking the reference to the record, see sv/p., VI. The summons must generally be served on all other parties interested in the money : (Dan. 1640.) A petition is necessary under the Parliamentary Deposit Act [see post, 8 (d)] ; and under 23 & 24 Vict. c. 38 [see post, 6]. 3. Obdes. (a) Where necessary. Subject to rules 46, 47, 48, 49, 62, 65, 66 ... . money in court shall not be invested in securities .... unless in pursuance of an order: (Ch. F. R. 1874, r. 36.) Rules 46, 47, 48, 49, relate only to the application of dividends accruing on securities after an order for transfer or delivery out (or realisation and payment out) of proceeds, and the investment of such dividends : (see post, XII., xrv.) Rules 62, 65, 66 will be found in a subsequent part of this heading. A sum of money amounting to or exceedmg 40?. paid into court .... in pursuance of .... 36 Gfeo. 3, c. 52, s. 32 [The Legacy Duty Act] shaJl, upon a written request of the person paying it in or of his solicitor, or upon a written request made by or on behalf of a person claiming to be entitled thereto or interested therein, be invested (without an order) in Consolidated 3J. per Cent. Annuities .... If such money [has been placed on deposit before such request .... left at the Chancery Pay Office, such money and any interest to be credited in respect thereof, if amounting to 40Zi, shall upon a like request, be withdrawn from deposit and invested as before-mentioned : (Ch. P. R. 1874, r. 65.) [In the case of dividends in respect of such Consols (see infra), invest- ment only takes place] if so requested either in the original request or any subsequent request : (Id.) [Where an affidavit, under the Trustee Relief Act, states a desire that the money to be paid in, or dividends, on the securities to be transferred or deposited, and the accumulations shall be invested in Consols, 3Z. per Cent. Annuities, or New 31. per Cent. Annuities], the Chancery Paymaster shall (if,, or so soon, as such money shall amount to or exceed 40Z., or such dividends shall amount to or exceed lOZ.) invest the same in [one of such annuities] without any order or further request for that purpose : (Ch. P. R. 1874, r. 66.) • As to proceeds or income of Exchequer bills or bonds being invested without request, see Ch.' P. R. 1874, r. 62, post. (6) B^erence to Becord. [See sup. VI.] (c) Title of Cause and Account, Preparation, &c. [See sup. VII.J 4. Where Request Necessaey. When an order .... directs .... the investment .... of money in court, or of dividends to accrue on securities in court, the Chancery Pajfmaster may defer giving effect to such direction unless a request in writing to give effect thereto has been left at the Chancery Pay Office ; but it shall be the duty of the solicitor for the person having the carriage of such order .... to leave it and such request at the Chancery Pay Office without unnecessary delay : (Ch. P, R. 1874, r. 37.') Payment into and but of Court. H'k'J 5. What Sitms Invested. A sum of money in court less than 40Z. shall not be invested in securities except in the cases provided for by Rules 65 and 66 [given below]. This rule shall extend to the investment of dividends accruing on securities in court which have been, or may be, directed or requested to be invested : In the subsequent provisions of [the] Act the term " the deposit fund " means the money deposited, or the stocks, funds, or securities in which the same is invested, or the bank annuities, stocks, funds, securities, or Exchequer bUls deposited as the case may be ; and the teitoi " the depositors" means the persons named in the warrant of the Board of Trade authorising the deposit, or the majority or survivors of those persons, tjieir executors, administrators, or assigns : (27 & 28 Yict. c. 121, s. 40.) The court .... shall, on the application [in a summary way] of the •depositorSj order the deposit fund to be paid, transferred, or delivered out to the applicants, or, as they direct, in any of the following events ": [First] If within the time in the certificate prescribed, and if none is prescribed, then within five years from the commencement of the operation of- the certificate, the company or persons thereby empowered to make the railway, complete it and open it for public ^ traffic. [Secondly] If, within the same time, they (being a company) prove to the satisfaction of the Board of Trade that a half of their nominal, calpital authorised by the certificate is paid, and that they have expended a Uke amount for the purposes of the certificate ; or, [Thirdly] If at any time after the issuing of the certificate they execute and deliver to the solicitor of Her Majesty's Treasury a bond [as mentioned in the Act] : (s. 40.) If the company or persons do not, within the times mentioned in sect. 40, ■do one of ,the acts there mentioned the deposit fund is forfeited to Her Majesty : (see s. 41.) The certificate of the Board of Trade .... respecting .... capital . . . and expenditure .... and the certificates of the [Treasury] solicitor .... that such bond .... has .... been prepared [&c., are] jsufficient evidence : (s. 44.) XIV. TRANSFER AND DELIVERY OUT. 1. Application. ^ [See sup., XIII., 2, (a).] As to marking the reference to the record, see post, VI. 2. Sebvice. [See sup., XIII., 2, (6).] 3. Evidence. [See sup., XIII., 2, (c).] 666 Payment into and out of Court.' 4. Obdbk. (a) Where necessary. Securities in court BhaU not be ... . transferred .... or delivered out .... and a certificate shall not be issued for the .... transfer or delivery out of securities in court, unless in pursuance of an order : (Ok F. A. ,1872, s. 10; Oh. F. B. 1874, r. 36.) (6) Reference to Record [see sm^., VI.] , (c) Title of Cause and Account [see swp., VII.] (d) Directions. As to the ordinary directions, see sup., VII., 3 ; XIII., 2, (d) (4). . A fund may be ordered to bp transferred from one cause to another upon a petition or summons entitled only in the former cause : (Dan. 1658.) A transfer may be ordered to the High Coi^rt of Justice in Ireland : (Id.) A'trjansfer may be ordered to the Lancaster Palatine Court, or the Court of Bankruptcy : (Seton, 99.) (e) Swms, Bates, Amounts, &c. [see swp., VII.] (/) Descriptions of P^ersons [see swp., VII ; XIII., 1]. {g) Drawing wp, Printing, Copies, &c. [see swp., VII.] 5. How TsANSFEB OK Dblivebt Madb Genebailt. (a) Certijicate of Order. The certificate of the registrar .... countersigned by the Paymaster- Greneral [is] sufficient evidence of the order referred to in the certificate, and of the directions contained in such order, and .... a sufficient authority to the Bank : (Ch. F. R. 1874, r. 42.) No certificate shall be issued by a registrar of the court, except on the production of the original order, or an office copy thereof, if the absence of the original order shall be accounted for to the satisfaction of such registrar: (Ch. F. R. 1874, r. 42.) Every certificate for the .... transfer or delivery of securities in court shall express the .... exact amount and description of securities to be transferred or delivered out : (Oh. F. R. 1874, r. 42.) When the amount at the time of issuing the certificate does not appear by any document which can be referred to, the amount must be referred to as " at the date of the order in court, &c." : (Seton, 105.) A certificate cannot be granted to raise a sum of money and transfer the residue of the securities, or to sell certain securities, and so much of another amount as, with the produce of the first sale, will make up a .given sum : (Seton, 106.) No two descriptions of stock can be included in one certificate, but any number of transfers and sales of the same, whether standing to the same or difEerent accounts, may be included in one certificate : (Seton, 105.) Where stock is directed to be sold or transferred out when transferred into court or carried over subsequently to the date of the order, the office' copy of the certificate , of the transfers in or carrying over must be produced and referred to in the certificate of sale or transfer : {Id.) When any cash to be paid in after the date of the order is to be- taken in aid, an office copy of such payment in must be produced and referred to in the certificate of sale or transfer : {Id.) When so much stock is ordered to be sold, as with an ascertained amount of cash, will raise a sum of money, the actual balance to be raised ought to be stated in ,the order and certificate : {Id.) The language of the order is to be followed as nearly as may be. Payment into and out of Courts 667 Dates to be inserted in figures, sums in words, and no abbreviations are to be used. The short title of the cause or matter, thus : "lA. v. B., 1876, A. 100," or " In re C. D.," with the folio of entry in the registrar's books, are to be written at the head of the certificate, and the reference to the record is to added from the order. The certificate is to be marked by the registrar's clerk as examined before being signed by the registrar : ' (Ch. Reg., 15th March, 1860, r. 39.) A memorandum of the issuing of the certificate is written in the margin of the order, and initialled by the registrar : (Seton, 105.) If the person to whom the stocji is to be transferred is a party, he is described as " the plaintiff or defendant A.," or if not a party, as " in the said order named " : (Id.) As to e-vidence required on granting certificates, after death, see post. (6) Dividends. When securities in court are directed to be transferred or delirered out, dividends accruing thereon subsequently to the date of the order directing the transfer or delivery (when the amount of the securities to be trans- ferred or delivered is specified in such order, or if not so specified then subsequently to the time when the amount of such securities shall be ascertained), shall be paid to the persons to whom the securities are to be transferred or delivered, unless such order otherwise directs: (Ch. E. B., 1874, r. 46.) When, under an order directing the transfer or delivery of securities, dividends accruing thereon would be payable to the persons to whom such securities are directed to be transferred or delivered, and pm^suant to a general or other previous order such dividends have been invested, the securities purchased with such dividends shall, unless otherwise directed, be transferred or delivered, and any dividends accrued ifi. respect thereof shall be paid to such persons : (Oh. T. R., 1874, r. 47.) In every case (other than that provided for by the last preceding rule), when by an order dividends are directed to be dealt with so that the same ought not to be invested, and subsequently to the date of such order such dividends or any part thereof shall have been iuYested, the securities purchased with such dividends shall, unless otherwise directed, be sold, and the proceeds of such sale and any dividends accrued in respect ■ of such securities shall be applied in the same manner as the dividends so invested would have been applied under such order, if they had not been so invested : (Ch. F. R. 1874, r. 48.) , , . x In the cases provided for by the last two preceding rules, the registrars of the Court may, upon production to thein of a certificate of such investment as therein mentioned, issue certificates for transfer, delivery, or sale, according to the provisions of the said rules : (Ch. F. B., 1874, r-49.) (c) Ascertaining Besidue or Aliquot Shares [see sup., XIII. ; post, XY.J {d) Direction. When securities in court are to be transferred or delivered out, and a registrar of the court .... has issued a certificate authorising such transfer or deUvery, the Chancery Paymaster shaU issue a direction for such transfer or delivery, and specify in such direction the title ot the cause or matter to the credit of which such securities are sta,nding m the books at the Chancery Pay Office, and the amount and description ot the securities to be transferred or delivered, and the name of the person to whom the transfer or delivery is to be made : |.Ch. F. B. 1874, r. 45.) (e) Bank Certificate. Upon the receipt of such direction, and of the certificate of a registrar 668 Payment into and out of Court. of the court .... authorising such transfer or delivery, countersigned by the Chancery Paymaster, the bank, or body corporate, or company, in whose books, or with whom, siich securities shall be standing or deposited, shall cause such transfer or delivery to be made by their proper officer, and shall send such direction to the Chancery Pay Office, with a certifi- cate thereon that the transfer or delivery therein mentioned has been made to the person named therein : (Ch. P. R. 1874:, r. 45.) (/) To Partners [see the parts of rr. S3, 54, set out sitp., XIII., 2, (e) (7)]. (o) To Representatives or Survivor of Absolute Owner. [See the parts of rr. 53, 66, set out sup., XIII., 2, (e) (8)]. On granting a, certificate the registrar requires an affidavit of indentity (for form, of which see Seton, 106), a certificate of burial, or an official extract from the register of deaths ; and, where the transfer is to be made to representatives of a sole owner, the probate or letters of administration : (Ch. Reg. 15th March, 1860, r. 40.) Qi) To Surviving Representatives. [See the parts of rr. 54, 56, set out swp., XHL, 2, (e) (9).] In the case of securities transferable or deliverable [to representatives under r. 53 or 54] the registrar may (upon proof of the death of any of such representatives) issue a certificate authorising the transfer or delivery of such securities, or to the survivors or, survivor qf them : (Ch. P. R. . 1874, r. 55.) If the order direct transfer or delivery to the representatives when ' constituted of a deceased person, and any of such representatives be dead, the registrar before granting his certificate requires the probate or letters of administration, an affidavit of identity, and ^ certificate of burial qf the deceased representative, or an official extract from the register of deaths : (Ch. Reg. 15th March, I860, r. 40.) If the order direct transfer or delivery to any persons named in the ord.er as representatives of a deceased person, an affidavit of identity, and certificate of burial, or extract from register of death only, are required : Forms of affidavits of identity are given in Seton, 106. {i) To Married Women. When .... securities in court are directed to be transferred or delivered to a woman who is not married at the date of the order, and such woman shall marry before'. . . , transfer or delivery of such securities, .... such securities, if they or the aggregate of such securi- ties do not exceed in value 200L sterling, may be transferred or delivered to such woman and her husband, upon proof of the marriage, and upon an affidavit of such woman and her husband that no settlement or agreement for a settlement whatsoever has been made or entered into before, upon, or since their marriage ; or, in case any such set;fclement or agreement for a settlement has been made or entered into, then, upon an affidavit of such woman and her husband, idelitifying such settlement or agreement for the settlement, atid stating that no other settlement or agreement for a settlement has been made or entered into as aforesaid, and an affidavit of the solicitor of such woman and her husband,, that such solicitor has carefully perused such settlement or agreement for a settlement, and that according to the best of his judgment such .... securities are not, nor is any part thereof, subject to the trusts of such settlement ot agreement for a settlement, or in any manner comprised therein or affected thereby ; and upon proof of the marriage and production of such affidavit, the registrar may issue a certificate Payment into anpl out of Court. 669 authorising the transfer or delivery of such securities to such woman and her husband : (Ch. F. R. 1874, r. 52.) And see sup., XIII., 2, (e), (10). 6. Transfer and Delivery under Particular Statutes. [See sup., XIII., 2, (/).] Xy. ASCERTAINING SHARES AND COMPUTING INTEREST. In the case of residues and aliquot or proportionate parts, of money, securities, dividends, or interest, the amount of which cannot be ascer- tained at the date of the order, the amounts may be ascertained in manner provided by rules 10 and 86 : (Ch. P. R. 1874, r. 8.) Money, dividends, or interest directed by an order to be paid into court, the amount of which caanot be ascertained at the date of the order, may be ascertained in like manney : [Id.) If the day to which interest is to be computed cannot be fixed by the order, the day from which (exclusive) such interest is to be computed shall (except in the case of a computation of subsequent interest from the foot of the certificate of a chief clerk) .... be stated in the order, and such interest may be directed to be computed and certified by a chief clerk - .... or (where the computation is dependent upon the taxation of costs) ■ by a taxing master : (Ch. F. R. 1874, r. 10.) When interest is certified by a' chief clerk .... or a taxing master, such interest may, unless the order otherwise directs, be computed to a day subsequent to the date of the certificate and to be named therein as the day for payment, so as to allow a, reasonable time for doing alli necessary acts to enable the payment to be made : (Ch. P. R. 1874, r. 10.) The chief clerk .... or taxing master, may, if he thinks fit, require a statement in writing of such computation, authenticated by the signature of the solicitor of the person having the carriage of the order, to be produced before preparing the certificate, but no affidavit verifying such computation shall be required : (Ch. P. R. 1874, r. 10.) When the day for payment caitnot be fixed by the order, and the interest is not directed to be certified in manner aforesaid, the order may direct the interest to the day for payment to be ascertained by an affidavit, or by a statutory declaration, in which case such interest shall "be computed to a day (inclusive) to be named in such affidavit or declaration, as the day for payment, and which day shall not be more than ten days after the day of swearing such affidavit, or making such declaration : (Ch. P. R. 1874, r. 10.) Such affidavit or declaration shall be a sufficient authority to the Chancery Paymaster to pay or apply the amount of interest so ascertained in the manner directed by such onier : (Ch. P. R. 1874, r. 10.) And in every case in which interest is to be computed, income tax (if any) shall, in making such computation, be deducted therefrom at the rate payable during the time such interest accrues, unless the order otherwise directs ; and it shall be stated in every such affidavit or declaration as aforesaid that income tax, if any, has been deducted : (Ch. P. R. 1874, r. 10.) When evidence is required by the Chancery Paymaster for the purpose of ascertaining the amounts of any residue or aliquot or proportionate part of money or securities dealt with by an order, or for otherwise carrying into effect the directions of an order, he may, without any_ directions in such order for that purpose, receive and act upon an affidavit ; and every 670 Phyment into and out of Goiirt — Perpetuating Testimony. such statutory declaration shall be filed in the report office when the Chaiicery Paymaster shall consider it necessary : (Ch. P. R. 1874, r. 86.) XVI. "VERIPrmG DOCUMENTS. The execution of such document shall be certified by a master in lunacy or by a chief clerk, or may. be verified by affidavit if the order by which ^uch execution is required shall so direct : (Ch., F. R. 1874, r. 11.) XVII. PROVISIONS AS TO LEGACY AND SUCCESSION DUTY. The Chancery Paymaster, on receiving; notice from the proper officer that [legacy or succession] duty is payable [causes] a memorandum to be made in his books ia conformity with such notice : (Ch. P. R. 1874, r. 57.) Every petition for dealing with money or securities in court, chargeable with duty payable to the revenue under the Acts relating to legacy or succession duty, or the dividend on such securities, shall contain a state- ment whether such duty or any part thereof has or has not been paid : (Ch. P. A. 0. 1874, r. 11.) Vhpn an order [has] been left at the Chancery Pay Office, for the purpose of giving effect to any direction for the transfer of any [legacy or succession] ,duty to the account of the Receiver-Greneral of Inland Revenue at the bank, together with the requisition of the Commissioners of, Trila.Tifl Revenue for such transfer, and such other evidence as may be Tiecessa^ for verifying the amount of such duty, the Chancery Paymaster "'[directs] the bank to transfer the amount of siich duty to the said account in, and {debits] such amount to the proper account in the books at the Chancery Pay Office : (Ch. P. R. 1874, r. 67 ; and see Seton, 113 ; sup., VII.) XVIII. OERTIPIOATES OP DEALING WITH FUNDS. When securities have been purchased, sold, transferred o;r delivered out, or money or securities have been carried over, or otherwise dealt with in the boofa at the Chaneeiry Pay Office, the Chancery Paymaster may in his ■discretion issue a certificate thereof, upon a request in writing made by or on behalf of any person claiming to be interested in such money or .securities : (Oh. P. R. 1874, r. 89.) The registrars of the court shall not, without a special direction of a judge, be required to issue certificates for the sale, transfer, or delivery of securities in court during any vacation in their office : (Ch. P. A. 0. 1874, r. 12.) PENDING PROCEEDINGS. [See Jurisdiction.] PERPETUATING TESTIMONY. [See Evidence.] Petition, 671 PETITION. I. INTERPRETATION. II. WHERE PROPER MODE OF APPLYING. HI. PETITIONS OF COURSE, rv. SPECIAL PETITIONS. 1. Peepabation. (a) Address wnd Title. (6) Reference to Record. (c) Name and Add/ress of Petitioner. (d) Paragrofphs, S[c. (e) Statement as to Service. 2. How Disabled Persons Petition. 3. How Paupeks Petition 4. How Companies Petition. 5. PEBSENTINa ANB AnSWEBING, 6. Seevice. (a) On whom. (V) Time. (c) How Effected. (d) Substituted Service. (e) Service out of Jii/risd/iction. 7. GUAEDIAN AD LiTEM. 8. Sbttins Down. 9. Heaking. 10. Evidence. 11. Amendment. 12. Change op Parties [see Pabtibs, VI.] 13. Adjoitrnmeht. 14. Restobation to Paper. 15. Filing. V. ORDER ON PETITION. 1. Op Couesb [see sup., HI.] 2. On Special Petition. (a) Drawing Up,^c. (b) Enforcing [see Execution.] VI. COSTS. I. mTERPRETATION. In the construction of the [Acts and Rules] unless there is anything in the subject or context repugnant thereto : "Plaintiff" shall include every person asking any relief (otherwise than byway of counter-claim as a defendant) against any other person by any form of proceeding, whether the same be taten by action, suit, petition, motion, summons, or otherwise. " Petitioner " shall include every person making any application to the court, either by petition, motion, or summons, otherwise than as against any defendant. " Defendant " shall include every person served with any -writ of simimons or process, or served with notice of, or entitled to attend any proceedings. " Matter " shall include every proceeding in the court not in a cause.. " Pleading " shall include any petition or summons: (J. A., 1873, s. 100; O: LXm., r. 1 ; Id., r. 2, April, 1880.) ' II. WHERE PROPER MODE OP APPLYING. Besides the cases in which applications are, under special statute^ to be 672 ' Petition. made by petition ; as a general rule, where any lon^ or intricate statement of facts is required, the application should be by petition, and all applications for orders which partake more of the nature of judgments than of interlocutory proceedings should be by petition : (see Dan^ 1434.) III. PETITIONS OP COURSE. ^ Orders on petitions of course are forthwith granted without any attendance being ordered : (Dan. 1451.) Most things which may be moved for of course may be obtained on J)etition of course : {Id.) ' Orders of course may be made by any judge : (Dan. 1436.) Petitions of course are usually presented to the Master of the Bolls, though the cause is not attached to his court : (Dan. 145] .) ' (^Every petition of course at the RoUs must be left at the office of the . secretary, who will,] upon any such petitions of course .... which shall be presented [to the High Court and marked with the name of] his [Lordship], instead of answering such petitions, draw up the orders thereon in such form as the Master of the Rolls shall from time to time direct, every such order to be signed as passed with the initials of such secretary ; and .... enter, or cause to be entered, every such order in a book to be kept at the secretary's office at the Rolls for that purpose, and .... then mark and sign such order with his initials, as entered; and the suitors of the court and their solicitors shall have access to the said book, during office hours, without the payment of any fee. And every such order so to be made as aforesaid, shall have the same force and efEect as orders of course passed by the registrars have : (C. O. 23, r. 17.) No notice need be given of the application. If there is any irregularity in the order, or it has been obtained upon any false suggestion, or by the suppression of , any material fact, it will be discharged on motion (Dan. 1436) to the jndge to whom special applications in the cause or matter ought to be made : (0. O. 6, r. 10.) If an order has been irregularly obtained, the party who has obtained it should take the earliest opportunity of discharging it, or any party aiEBected by it may procure its discharge, at the cost of the person who obtained it : (Dan. 1436.) No, subsequent order to the same efEect can be obtained until it has been discharged : {Id.) An order of "conrse ought to be served, as soon as possible, upon the party intended to be effected by it, or his solicitor : {Id.) If the other party takes a regular step before the order is served, the order of course no^ served cannot afterwards be a«ted upon, so as to interfere with the step so taken : {Id.) IV. SPECIAL PETITIONS. 1. Pebpakation. (a) Address and Title. Eve^ petition must be addressed — " m the High Court of Justice. Clmnceiy Division. Vice-OhanceUor • [or Master of the Rolls]. To Her Majesty's High Court of Justice : " (20 S. J. 24.) Subject to the power of transfer, every person by whom any .... matter^ may be commenced in the High Court of Justice which would have been within the non-exclusive cognisance of the High Court of Admiralty, if the said Act had not passed, shall assign such .... matter .... by marking the document by which the same is commenced Petition. 673 with the name of the division, and giving notice thereof to the proper officer of the court. If so marked for the Chancery Division the same shall be assigned to one of the judges of such division by marking the same with the name of such of the said judges as the .... petitioner (subject to such power of transfer) may think fit : (0. Y., r. 4.) Petitions presented under any Act of Parliament must also be intituled in the partictdar matter in respect of which they are presented, and of such Act of Parliament. Save as [thereinafter]- provided, all petitions and further proceedings in causes shall be had before the judge to whose court such causes are or shall be attached, unless removed therefrom: (C. O. 6, r. 5.) All applications for orders of course to be obtained on petition or motion shall and may be made in the same manner, in all respects, aa if the above rule . . . had not been made : (0. O. 6, r. 9.) (6) Befyrence to Record. [See Pleading ; Payment into and out of Cotjbt.] (c) Name and Address of Petitioner. A petition must state by whom it is presented, and if presented in a matter, or by a person not a party to the action, his residence and description : (Dan. 1452.) (d) Paragraphs, &c. Every pleading [including a petition, see swp., 1.] shall contain as concisely as may be a statement of the material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate allegation. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary : (O. XIX., r. 4.) No petition need be printed : [Id., r. 5.) (e) Statement as to Service. At the foot of every petition (not being a petition of course) • • _■ • and of every copy thereof, a statement shall be made of the persons, if any, intended to be served therewith ; and if no person is intended to be served with such petition, a statement to that effect shalj be made at the foot of the petition, and of every copy thereof : (C. O. 34, r. 1.) _ The respoiidents must be mentioned by name and not simply as plaintiffs and defendants : [MeyricTc v. Laws, "W. BT. 1877, p. 223.) 2. How Disabled Pbbsons Petition. An infant, married woman without her husband, or other person under disability, petitions by her next friend : (Dan. 1452.) As to making the husband co-petitioner, see Be Osborne, W. N. 1878, p. 179. .„ , , A lunatic, so found, petitions by his committee, or if he has no com- mittee, by his next friend: (Dan. 80 ; Wm. Pet. 4.) 3. How Paitpeks Petition. Unless it is for the removal of the solicitor, a petition by a person suing in formA pavperis must be signed by his solicitor : (see 0. O. 7, r. 11 ; Parties, I., 20.) 4. How Coepoeate Bodies Petition, The seal of a corporate body should be annexed to a petition for payment out : [Ex parte Corporation of London, W. N. 1878, p. 238.) 6. Presenting and Answbeing. Any petition to the Chancery Division, other than a petition of course, 674 Petition. naming any other judge than the Master of the Bolls must be left, with a fair copy for the use of the judge, with the secretary of the Lord Chancellor. Petitions intituled in the BoUs must be left with his secretary : (Dan. 1463-4.) In each case the petition is answered by the secretary writing and signing a, memorandum in the margin, directing all parties conceraed to attend on the next day of petitions, unless upon previous application permission has been given to nave the petition answered for an earlier day: (Dan. ,1454-5.) 6. Seevicb. (a) On Whom'. AH petitions, except those which are of course, require service upon the adverse party, unless there is no other party interested in the matter, as in the case of petitions for the transfer or sale of stock, or the payment out of court of money standing to the separate account of the petitioner, in which case no service is necessary : (Dan. 1454-5.) (6) Time. The service of a petition (unless the court give special leave to the contrary) must be at least two clear days before the day appointed for hearing: (C. O. 34, r. 2.) Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such .... time : (O. LVII., r. 2 ; and see Time.) (c) How Effected. Service is effected on the solicitor oi the respondent, if any, or on the respondent in person as in the case of notices of motion : (see Motion.) The service is effected by delivery of a copy of the petition and memorandum thereon, and at the same time showing the original petition answered: (Dan. 1466.) If the petition is in an action, and is required to be served on a defendant who has not appeared, it shall be delivered by being filed with ' the proper ofBcer : (O. ilX., r. 6.) (d) Substituted Service. Substituted service may be ordered on motion, ex parte, supported by affidavit : (Dan. 1456 ; Be Blackwood, W. N., 1867, p. 114.) The order directing such service must be served with the petition : (Dan. 1456.) (e) Service out of Jurisdiction. Service out of- the jurisdiction may be ordered on motion, ex parte, supported by affidavit showing the residence : (Dan. 1455-6.) The copy order must be served with the petition : {Id.) 7. Gtiaedian ad Litem. After service on an infant, lunatic not so found, or a lunatic so found who has no committee, or whose committee has an adverse interest, a guardian ad litem, must be appointed on motion or petition of course, supported by affidavit of service and fitness, consent of the proposed guardian, and that he has no adverse iuterest : (Dan. 1456 ; Wms. Pet. 7.) 8. Setting down. Petitions which are not of course are set down by the secretary of the Lord Chancellor or Master of the Bolls ; and a list is sent to the registrar who puts the petitions in the paper : (Seton, 52.) Keeping out of Paper. When a petition is not ready for hearing application should be made to the officer of the court before petition day, so that it may not appear in the paper: (W. N., 1875, p. 104.) Petition. 675 9. Hearing. On the day appointed the petition will appear in the daily printed list of the judge, and will be called on in its turn, the course being generally to hear all the unopposed petitions before calling on those which are opposed : (Jarm. 868.) Those undisposed of are placed in an adjourned list, and are taken on the next petition day before the new opposed petitions : (Dan. 1456.) If the petitioner does not appear the petition will be dismissed with costs. If a respondent does not appear an order may be made against him : Under the former practice an affidavit of service was required to be filed before the rising of the court, but, having regard to the decisions as to judgment on non-appearance at the hearing of an action, no affidavit seems now to be necessary ■ (see Judgment, L, 5.) If on the hearing .... the court or judge shall be of opinion that any person to whom notice has not been given ought to have or to have had such notice, the court or judge may either dismiss the .... appli- cation, or adjourn the hearing thereof, in order that such notice may be given upon such terms, if any, as the court or judge may think fit to impose : (O. LIII., r. 6.) 10. Evidence. Upon any .... petition, evidence may be given by affidavit : (0. XXXVn., r. 2.) The court or a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit : (o. xxxvn., r. 2.) [And see Evidence.] , A petitioner intending to use evidence previously filed in the cause, should give notice thereof to the respondents : (Seton, 53.) Where the title of a petition is amended, the affidavits may be made evidence, without being resworn, by a short aiffidavit referring to them and making them exhibits : {Id.) 11. Amendment. [See Amendment ; Pleading.] Leave to amend is almost of course, and facts may be inserted which have occurred after presentation of the petition or after order for amend- ment : (Seton 52, citing Be WestbrooJc, L. Rep. 11 Eq. 252.) No formal order is usually drawn up : (Dan. 1459.) The registrar will, if required, indorse the direction on the brief or petition as an authority to the secretary to make the amendment ; but counsel's indorsement is generally sufficient : (Seton, 62.) An amended petition does not, in general, require re-answering : (Seton, 52.) ' Where persons have been joined as petitioners without their authority, their names wiU, on motion by them, be struck out as petitioners, and they will be treated as respondents who have been served : {Re Savage, W. N. 1880, p. 154.) The appUeation may be made though an order on the petition has been completed : {Id.) 12. Change of Paeties. [See Parties, VI.] 13. Adjouenment. As to the practice on adjournment of a petition to chambers, see Infants, II., 7 ; Payment into and out of Oottet, XIII., 2 (c). X X 2 676 Petition. 14. Restobation to Papee. Where an unopposed petition is directed to stand over without fixing a day for it to be again put into the paper, the registrar in attendance in court upon the written request of the solicitor, will direct the same to be restored to the paper for the following petition day : (Oh. Beg. 15th Mar. 1860.) In other cases, where the further consideration of a petition is ad- journed, or any portion of a petition is directed to stand over, the registrar will restore the petition to the paper for hearing, upon being satisfied that the object for which it was adjourned has been accomplished, on production of a written request of the solicitor having the conduct of the proceeding : (Dan. 1458.) ICfotice that the petition has been restored must be given to the other parties entitled to appear : (Id.) 15. Tiling. Petitions whereon any order is founded are to be filed .... under the direction of the [Masters] : (C. O. 1, r. 44.) Ko order made on a petition .... shall be passed until the original petition .... shall have been filed in the Report Office, and a note thereof made on the . . .-. order by the clerk of reports: (0. O. 23, r. 23.) Where the original petition was lost, the court allowed the copy left for the use of the judge in one case ; and in another case a copy, certified by the under-secretary at the RoUs to be a true copy, to be filed instead : (Jarm. 869.) Where the petitioner withheld the original from the respondents, the court allowed the copy served to be filed : {Id.) V. ORDER ON PETITION. 1. Op Cottbse. [See sup., m.] 2. On Special Petition. * (a) Drawing up, &c. [See Judgment.] [There must be left with the registrar on bespeaking the order] the original petition and counsel's brief, with his endorsement of the order made, and any judgment, order, or the office copy of any certificate, on which the petition is founded, and office copies of any affidavits, and any exhibits, or other evidence used at the hearing: (Oh. Reg. 15th Mar. 1860, r. 32 ; and see Judgment, XV., 2.) ' (5) Enforcing [see Execution]. VI. COSTS. The effect of Order LV., giving discretion as to costs, is, with the efxceptions mentioned in the order, to repeal aU previous enactments as to costs, and where a previous statute is silent as to , costs, to supply the omission : {Ex parte Mercers' Company, L. Rep. lO' Oh. Div. 481.) But the old law may be looked at as a guide, and ought to be followed wherever practicable : (per Bramwell, L. J., Myers v. Defries, L. Rep. 5 Ex. Div. 180; 42 L. T. Rep. N. S. 137 ; 49 L. J. 266, Ex. ; 28 W. R. 406.) ' Petition — Petition of Right. 677 When a petition was of inordinate length, the court allowed a fixed Slim for costs : {BvM v. Jones, W. N. 1880, p. 66.) Where a petition in any cause or matter assigned to the Chancery division is served, and notice is given to the party served that in case of his appearance in court his costs will be objected to, and accompanied by a tender of costs for perusing the same, the amount to be tendered shall be 21. 2s. : (Add. R. Aug. 1875, Sp. All. jr. 17.) The party making sucn payment shall be allowed the same in his costs, provided such service was proper, but not otherwise ; biit this order is without prejudice to the rights of either party to costs, or to object to costs where no such tender is made, or where the court or judge shall consider the party entitled, notwithstanding such notice or tender, to appear in court : '(Id.) In any other case in which a solicitor of a party served necessarily or properly peruses any such petition without appearing thereon, he is to be allowed a fee not exceeding 2Z. 2s. . [Id.) Where any party appears upon any application or proceeding in court or at chambers in which he is not interested, or upon which, according to the practice of the court, he ought not to attend, he is not to be allowed any costs of such appearance unless the court or judge shall expressly direct such costs to be allowed : (Add. B.. Aug. 1875, Sp. AU., r. 21.) A solicitor joining persons as petitioners without their consent will he made to pay the costs of and incident to correcting the record, though the order has been completed : (Be Savage, W. N . 1880, p. 154.) PETITION OF RIGHT. I. EIGHT TO PROCEED AS BEFORE THE ACT. n. INTERPRETATION. m. WHERE PROPER REMEDY. rV. IN WHAT DIVISION BROUGHT, v. THE PETITION. 1. Title. 2. To BE Addkessed to the Queen. 3. Requisites as to Suppliant. 4. Statement of Facts. 5. SiaNATUKE. 6. Fiat. 7. Filing. 8. Sebvtce. (a) OnSoUdiorof Treasury. (6) On Assignee of Property. TI. APPEARANCE BY ASSIGNEE OP PROPERTY. Vn. SUBSEQUENT PROCEEDINGS. 1. Gbneeal Rules. 2. PLEADINa. 3. DiSCOVBBT. VIII, JUDGMENT. 1. Geneballt. 2. By Default. IX. COSTS. 1. Ebcovbbable by Cbown ob Assignee. 2. Ebcovebable by Suppliant. 678 Petition of Bight. X. CEBTIFICATB OF RESULT. XI. EFFECT OF JUDGMENT FOE StrPPLIANT. I. RIGHT TO PROCEED AS BEFORE THE ACT. ^.othiiig in this Act contained shall prevent any suppliant from .proceeding as bef oi'e the passing of [the] Act : (The Petitions of Right Act, 1860, 23 & 24 Vict. c. 34, s. 18.) II. INTERPRETATION. " Her Majesty " [includes] Her Majesty's successors ; " Relief " [comprehends] every species of relief claimed or prayed for in any such petition of right, whether a restitution of any incorporeal right, or a return of lands or chattels, or a payment of money or damages, or otherwise ; Any word importing the singular number or masculine or feminine gender includes and [is] applicable to several persons and parties as well as one person or party, and to females as well as males, and males aa well as females, and bodies corporate as well as individuals, and several matters and things as well as one matter or thing, unless it [is] otherwise provided, or there is something in the subject or context repugnant to stfch construction : (23 & 24 Vict. c. 34, s. 16.) in. WHERE PROPER REMEDY. A petition of right wiU lie for — Recovery of land (23 & 24 Vict. c. 34, s. 5) ; Recovery of goods {Id., s. 16) ; Unliquidated damages for breach of contract {The Banker's case, 14 How. St. Tr. 1 ; Thomas v. The Queen, L. Rep. 10 Q. B. 31 ; and see Churchward v. The Queen, L. Rep. 1 Q. B. 173) ; Enforcement of right to a grant of si privilege of mining {James V. The Queen, L. Rep. 5 Oh. Div. 153) ; Relief against forfeiture of a grant {Re Brain, L. Rep. 18 Eq. 389). A petition of right will not lie for — Unliquidated damages for tort {Tohin v. The Queen, 16 0. B. N. S. 31 ; 33 L. J. 199, C. P.) ; Recovery of money paid by another sovereign State in respect of war losses occasioned to British subjects {S^stomjee v. The Queen, L. Rep. 2 Q. B. Div. 69 ; 24 W. R. 428 ; and see Burnand v. Rodocanachi, L. Rep. 5 0. P. Div. 424) ; Compensation for wrongful dismissal of a military surgeon {Re Tufnell, 34 L. T. Rep. N. S. 838 ; L. Rep. 3 Oh. Div. 1641 ; , Compensation on abolition of civil office {Cooper v. The Queen, L. Rep. 14 Ch. Div. 311 ; 42 L. T. Rep. N.- S. 617 ; 49 L. J. 490, Ch.; 28W. R. 611); Recovery of land not in England {Reiner v. Salishury, L. Rep. 2 Ch. Div. 378 ; Re Holmes, 2 J. & H. 527 ; 31 L. J. 38, Ch. ; 5 L. T. Rep. N. S. 548 ; Doss v. Secretary of State for India, L. Rep. 19 Eq. 509) ; Claims against the Indian Government {Frith v. The Queen, 26 L. T. Eep. N. S. 774). IV. TO WHAT DIVISION BROUGHT. A petition of right may, if the suppliant think fit, he intituled in any one of the [Divisions of the High Court of Justice] in which the subject- matter of such petition or any material part thereof would have been Petition of Eight. 679 cognizable if the same had been a matter in dispute between subject and subject : (23 & 24 Vict. c. 34., s. 1.) V. THE PETITION. 1. Title. Every such petition, or the printed copy thereof, so filed, shall be marked with the [name of the judge] before whom it is, intended to be prosecuted: {Id., r. 2 ; Oh. O., 1st Feb. 1860, r. 2.) 2. To BE Addressed to the Queen. Such petition shall be addressed to Her Majesty in the form or to the effect in the schedule to [the] Act : (23 & 24 Vict, c 34, s. 1.) 3. Beqtjisites as to Suppliant. Such petition ..... shall state, the Ohristian and surname and usual place of abode of the suppliant and of his [solicitor] if any, by whom the same shall be presented : (2^& 24 Vict. c. 34, s. 1.) Any person who might be admitted to prosecute a suit in [the] court in forma, pauperis may be admitted to prosecute in forma pauperis a petition of right intituled in [the] court. And any person who might, if defendant to an ordinary suit in [the] court, have been admitted to defend in forma pauperis, may be admitted to make his defence in forma pauperis to any petition of right instituted in [the] court which he may be required to plead .... to. But no person shall be admitted to prosecute any petition in forma pauperis without a certificate of counsel that he conceives the case to be proper for relief in [the] court : (Oh. O., 1st Feb. 1862, r. 5.) The same orders and rules shall apply with regard to any person admitted to sue or defend in forma pauperis under these orders as_ are applicable with regard to paupers in suits between subject and subject : (Oh. O., 1st Feb. 1862, r. 6.) 4. Statement or Facts. Such petition .... shaU set forth with convenient certainty the facts entitling the suppliant to relief : (23 & 24 Vict. c. 34, s. 1.) No one should be joined as respondent with the Queen : [Kirh v. The Queen, L. Rep. 14 Bq. 558.) 6. SlGNATITBE. Such petition .... shall be signed by such suppliant, his counsel or [solicitor] : (23 & 24 Vict. c. 34, s. 1.) 6. Fiat. The said petition shall be left with the Secretary of State for the Home Department, in order that the same may be submitted to Her Majesty for Her Majesty's most gracious consideration, and in order that Her Majesty, if she shall think fit, may grant her fiat that right be done, and no fee or sum of money shall be payable by the suppliant on so leaving such petition, or upon his receiving back the same : (23 & 24 Vict. c. 34, s. 2.) The Secretary of State must submit the petition to Her Majesty, but it is his duty to advise Her Majesty whether she should grant or withhold her fiat thereto, and he cannot be required to state what advice he has given : {Irwin v. Grey, 3 F. & F. 635.)' 7. Filing. Upon Her Majesty's fiat being obtained to any petition of right presented in pursuance of the said Act, and intituled in the [Chancery Division] such petition, with the fiat thereon," together with a printed copy of such petition and fiat (if the petition is in writing) shall be fil«d fin the central office] : (Oh. O., 1st Feb. 1862, r. 1 ; J. A., 1879.) 680 Petition of Right. 8. Sekvice. (a) On Solicitor of Treasury. Upon Her Majesty's fiat being obtained to such petition, a copy of such petition and fiat shall be left at the office of the Solicitor to the Treasury, with an indorsement thereon in the form or to the effect in the schedule (No. 2) to [the] Act, praying for a plea or answer on behalf of Her Majesty within twenty-eight days, and it shall thereupon be the duty of the said solicitor to transmit such petition to the particular department to which the subject-matter of such petition may relate, and the same shall be prosecuted in the court in which the same shall be intituled, or in such other court as the Lord Chancellor may direct : (23 & 24 Vict. c. 34, s. 3.) Every copy of a petition of right left at the office of the solicitor of the Treasury in pursuance of the said Act, and every copy of a petition of right served upon or left at the last, or usual, or last faiown place, of abode of any person under the provisions of that Act, shall be a priuted copy, sealed with the seal of the [Central Office] in the same manner as copies of [writs] ai-e now sealed. And the leaving or serving of any copy not printed or not sealed with the office seal shall be of no effect for any of the purposes of the said Act : (Ch. O., 1st Feb. 1862, r. 3 ; J. A., 1879.) (6) On Assignee of Property. In case any such petition of right shall be presented for the recovery of any real or personal property, or any right in or to the same, which shall have been granted away or disposed of by or on behalf of Her Majesty or , her predecessors, a copy of such petition, allowance, and fiat shall be served upon or left at the last or usual or last known place of abode of the person in the possession, occupation, or enjoyment of such property or right, endorsed with a notice in the form set forth in the schedule (No. 3), requiring such person to appear thereto within eight days, and to plead or answer thereto in the court in which the same shall be prosecuted within fourteen days after the same shall have been so served or left as aforesaid ; and it shall not be necessary to issue any scire facias or other process to such person for the purpose of requiring him to appear and plead or answer to such petition : (23 & 24 Vict. o. 34, s. 5 ; and see sup. (a),) VI. APPEARANCE BT a!sSIGNEES OF PROPERTY. [Where the petition is served on the assignee of property as mentioned, svp. v., 8, (6)] he shall, within the time .... limited, if it be intended by him to contest such petition, enter an appearance to the same in the form set forth in schedule (No. 4) to [the] Act annexed, or to the like effect : (23 & 24 Vict. c. 34, s. 5.) Vn. SUBSEQUENT PROCEEDINGS. 1. General Rules. So far as the same may be applicable, and except in so far as may be inconsistent with [the] Act, the laws and statutes in force as to pleading, evidence, hearing, and trial, security for costs, amendment, arbitration, special cases, the means of procuring and taking evidence, set-off, appeal, and proceedings in error in suits in equity, and personal actions between subject and subject, and the practice and course of procedure of the courts .... for the time being in reference to such suits and personal actions, shall, unless the court in which the petition is prosecuted shall otherwise order, be applicable and apply and extend to such petition of right : Provided always, that nothing in [the] statute shall, be construed to give to the subject any remedy against the Crown in any case in which Petition of Bight. 681 he would not have been entitled to such remedy before the passing of [the] Act : (23 & 24 Vict. c. 34, s. 7.) So far as the same may be appUeable, and except in so far as may be inconsistent with the said Act and with the preceding orders, the .... Orders from time to time in force as to proceedings in suits in the [Chancery Division], and the practice and course of proceeding [therein] in reference to such suits, shall be applicable, and apply and extend to proceedings [therein] in petitions under the said Act, which are, for the purposes of this order, to be considered as [statements of claim] : (Oh. O. 1st Feb. 1862, r. 7.) 2. Pleading. [Any assignee of property served, as mentioned sup., with the petition] shall plead, or demur to the said petition within the time specified in such notice, or such further time as shall be allowed by the court or a judge : <23 & 24 Vict. c. 34, s. 5.) The time for ..... pleadiiig or demurring to such petition, on behalf of Her Majesty, shall oe the said period of twenty-pight days after the same, with such prayer of a plea or answer as aforesaid, shall have been left at the oflB^ce of the Treasury, or such further time as shall be allowed by the court or a judge : Provided always, that it shsill be lawful for the Lord OhanceUor, on the application of the Attomey-Geueral or of the suppliant, to change the court in which such petition shall be prosecuted, or the venue for the trial of the same : (s. 4.) Such petition may be answered by way of ... . plea, or demurrer - ... or by both pleas and defliurrer, by or in the name of Her Majesty's Attorney-General on behalf of Her Majesty, and by or on behalf of any other person who may in pursuance [of the Act] be called upon to plead or answer thereto, in the same manner as if such petition .... were a i [statement of claim], and without the necessity for any inquisition finding -the truth of such petition or the right of the sup'pUant, and such and the same matter as would be sufficient ground of ... . defence in point of law ox fact to such petition on the behalf of Her Majesty, may be alleged on behalf of any such other person as aforesaid called on to plead .... ■thereto : (23 & 24 Vict. c. 34, s. 6.) A statement of defence is now the proper mode of pleading : {Tomline V. The Queen, 27 W: R. 651.) The Crown may plead and demur together without leave : {Tobin v. The Queen, sup.) 3. DiSCOVBET. A suppliant in any petition under the said Act desiring to file interro- ;gatories for the examination of any person or persons who may be required to plead or answer thereto (other than Her Majesty's Attorney-General), shil file such interrogatories at the same time as such petition. And a copy, examined and marked by the [Master], of the interrogatories which any respondent is required to answer shall be served upon such respondent, together with the copy of the petition : (Oh. O. 1st Feb. 1862, r. 4 J. A. 1879.) The Crown is entitled to discovery of documents from the suppliant {Tomline v. The Queen, 27 W. R. 651.) The suppliant is not entitled to discovery of any kind from the Crown (Thomas v. The Queen, L. Rep. 10 Q. B. 44.)' VIII. JUDGMENT. 1. Generally. Upon every such petition of right the decree or judgment of the court, 682 Petition of Right. whether given upon demurrer upon the pleadings or upon a default to . '. . . plead in time, or, after hearing or verdict, or [on appeal], shall be that the suppliant is or is not entitled either to the whole or to some portion of the relief sought by his petition, or such other relief as the court may thint right, and such court may give a decree or judgment that the suppliant is entitled to such relief, and upon such terms and con- ditions (if any) as such court shall think just : (s. 9.) In all cases in which the judgment commonly called a judgment of amoveas manus has heretofore been pronounced or given upon a petition of right, a judgment that the supphant is entitled to relief as herein- before provided shall be of such and the same effect as such judgment of a/inoveas manus : (s. 10.) 2. By Default. In case of a failure on the behalf of Her Majesty, or of any such other person as aforesaid called upon to answer or plead to such petition, to plead .... or demur in due time, either to such petition or at any sub- sequent stage of the proceedings thereon, the suppliant shall be at liberty to apply to the court or a judge for an order that the petition may be taken as confessed, and it shall be lawful for such court or judge, on being satisfied that there has been such failure to plead .... or demur in due time, to order that such petition may be taien as confessed as against Her Majesty or such other party so making default ; and in case of default on the behalf of Her Majesty and any other such person (if any) called upon as aforesaid to answer or plead thereto, a decree may be made by the court, or leave may be given by the court, on the application of the snppliant, to sign > judgment in favour of the suppliant : provided always that such decree or judgment may afterwards be set aside by such court or a judge, in their or his discretion, on such terms as to them or him shall seem fit : (s. 8.) IX. COSTS. 1. Recoverable by Ceown oe Assignee. Upon any such petition of right, the Attorney-General or other person appeariug on behalf of Her Majesty, and every such other person as aforesaid who shall appear and plead .... to such petition shall be entitled respectively to recover costs against the suppliant, in the same manner, and subject to the same restrictions and discretion, and under the same rules, reg^ulations, and provisions, so far as they are applicable, as are or may be usually adopted or in force touching the payment or receipt of costs in proceedings between subject and subject : (s. 11.) Costs were given against the suppliant, the petition being dismissed, in Be Brain, L. Rep. 18 Eq. 389; Be Tufnell, L. Rep. 3 Oh. Div. 164; Be Cooper, gv/p. The Court of Appeal recently refused to make any order as to costs, where the Crown succeeded, and the decision was important as affecting other disputes between the Crown and persons claiming similar rights to those claimed by the suppliant : [James v. The Queen, L. Rep. 5 Ch. Div. 153.) Any costs recovered on behalf of Her Majesty shall be paid into the Exchequer, and shall Ibecome part of the consolidated fund, except where such petition shall be defended on behalf of Her Majesty in her private capacity, in which case such costs shall be paid to the treasurer of Her Majesty's household, or such other person as Her Majesty shall appoint to receive the same : (s. 11.) For the recovery of such costs such and the same remedies and writs of execution as are authorised for enforcing payment of costs upon judg- Petition of Bight. 683 ments in personal aotipns or decrees, rules or orders, shall and may be prosecuted, sued out, and executed respectively by, or on behalf of Her Majesty and of such other person as aforesaid as shall appear and plead to such petitions : (s. 11.) 2. Recoverable by Sitppliakt. TTpon any. such petition of right the suppliant shall be entitled to costs against Her Majesty, and also apjainst any other person appearing or pleading .... to any such petition of right, in like manner, and subject to the same rules, regidations and provisions, restrictions, and discretion, as far as they are applicable, as are or may be usually adopted or in force touching the right to recover costs in proceedings between subject and , subject : (23 & 24 Vict. c. 34, s. 12.) Costs were given against the Crown in James v. The Queem (L. Rep. 17 Eq. 502). For the recovery of any such costs from any such person, other than Her Majesty, appearing or pleading ... in pursuance thereof, to any such petition of right, such and the same remedies and writs of execution as are authorised for enforcing payment of costs upon rules, orders, decrees, or judgments in personal actions between subject and subject shall and may be prosecuted, sued out, and executed on behalf of such suppliant : (23 & 24 Vict. c. 34, s. 12.) X. CERTIFICATE OF RESULT. Whenever, upon any such petition of right, a judgment, order, or decree shall be given or made that the suppliant is entitled to relief, and there shall be no ... . appeal, or 'in case of an appeal .... a judgment, order, or decree shall have been afiirmed, given or made that the suppliant is entitled to relief, or upon any rule or order being made entitling the suppliant to costs, anyone of the judges of the court in which such petition shall have been prosecuted, shall and may, upon application in behalf of the suppliant, after the lapse of fourteen days from the making, giving, or affirming of such judgment or decree, rule, or order, certify to the Commissioners of Her Majesty's Treasury, or to the treasurer of Her Majesty's household, as the case may require, the tenor and purport of the same, in the form in the schedtde (No. 5) to [the] Act annexed, or to the like effect ; and such certificate may be sent to or left at the offi.ce of the Commissioners of Her Majesty's Treasury, or of the treasurer of Her Majesty's household, as the case may be : (23 & 24 Vict. e. 34, s. 13.) , XI. EFFECT OF JUDGMENT FOR SUPPLIANT. It shall be lawful for the Commissioners of Her Majesty's Treasury, and they are . . . required, to pay the amount of any moneys and costs as to which a judgment or decree, rule, or order shall be given or made that the suppliant in any such petition of right is entitled, and of which judgment or decree, rule, or order the tenor or purport shall have been so certified to them as aforesaid, out of any moneys in their hands for the time being legally applicable thereto, or which may be hereafter voted by Parliament for that purpose, provided such petition shall relate to any public matter ; and in case the same shall relate to any private property of or enjoyed by Her Majesty, or any contract or engagement made by or on behalf of Her Majesty, or any matter afEeoting Her Majesty in her private capacity. A certificate in the form aforesaid may be sent to or left at the office of the treasurer of Her Majesty's household, or such other person as Her Majesty shall from time to time appoint to receive the same, and the amount to which the suppliant is entitled, 684 Petition of Bight — Pleading. shall be paid to him out of such fund or moueys as Her Majesty shall be graciously pleased to direct to be applied for that purpose: (b. 14) PLEADING. I. MEANING OF "PLEADING." II. GENEEAl EtTLES. 1. TiTLB, AND Name and Address oi' Pabtt Dblivbeing. 2. Allegations. (a) How Facts stated. (b) Consistency with former PleaMng. (c) Facts Presfumed. (d) Effect of Docmnents. (e) ImpUed Contracts or Relations. (f) Malice, and other Conditions of Mind. (g) Notice. 3. Denl&IjS. 1 (a) Generally. (b) Representatime Cofpaeity, or Constitution of Firm. (c) Contract Alleged. 4. DBMUKMNa and Pleading Togetheb [see :post, XVH., 3]. 5. Fabaqbaphb. 6. FiGDKBS. 7. SlGNATDEB OE COUNSEL TJnNECESSABT. 8. Feinting. 9. Mabking Date op Dblivebt. 10. Dblivebt. 11. Filing. 12. auendhent. (a) Where Allowed. (b) Application for. (c) Time for Making. (d) Not made PenMng Demwrer. (e) How Made. (/) DeUoery of Amended Pleading, (g) Neglect to Amend a/nd Deliver. 13. Admission of Opponent's Pleading. 14. Dbmitbbeb. 15. Fabticitlabs. in. STATEMENT OF CLAIM. 1. Wbeeb XJnnbcessaet. 2. Notice in Libu op. 3. Title and Name and Addbess op Plaintipp. 4. Allegations. (a) Conciseness. (b) Material Facts. (c) Facts Preswmed [see sup., II., 2 (c)]. (d) Effect of Documents. (e) Implied Contracts or Relations. (/) Malice and other Conditions of Mind [see sup., H., 2(>)]. (g) Notice [see sup., n., 2 (jf)]. 5. Pabageafhs [see sv/p., II., 5.] 6. PiGUEES [see sup., BE., 6.] 7. Claims foe Bblibp. 8. Statement as to Venue. 9. Signature of Cownsel. Pleading. 685 10. PUINTlNa. ■ 11. Maeking Date of Delivkby [see sup., II., 9].' 12. Dbliveet. (a) How Made [see swp., II., 10]. (6) Where Made. (c) TFitftin wTiot Time. (d) D^auU [see Judgment, Dismissal of Action]. 13. Filing. 14. Amendment. (a) TTTiai ^Jlowed. ' (ft) Bv PlcmiUff. (1) Without Leave. (2) With Leave. (3) Not made Pending Demurrer. (4) How Made. J- [See siip., II., 12]. , (5) Delivery of Amended Statement. ^ (6) Ne^eot to Amend and Deliver. __ (c) By Defendant. {d) In Lieu of New Assignment. (e) When Defendamt Added. 15. Admission op TeuTh of [see si*j)., II., 13]. 16. Steiking Out. , 17. Withdrawal. (a) Before Defence. (6) After Defence. IV. FUETHEE STATEMENT OF CLAIM [aee sup., III., 2]. V. STATEMENT OP DEFENCE. 1. Wheee TJnnecessabt. 2. Bt Leave. 3. Title, and Name and Address of Defendant [see swp., IL, 1]. 4. Allegations. i (a) Conciseness [see sitp., II., 2 (a)]. (b) Material Facts a/nd Qrov/ads of Defence. (c) Facts Preswmed. ~\ (d) Effect of Docwments. (e) ImpUed Contracts or Relations. ■ [See sup,, II., 2]. (/) Malice and Other Con&itions of Mind. (g) Notice. ^ 5. Denials. 6. Pleading Not Guilty. 7. Pleading in Abatement. 8. Pleading Possession. 9. Pleading Payment into Couet. 10. Pleading Matters Arising afteb Action Brought. 11. Pleading and DbItctebing [see yosi, XVII.] 12. Paeageaphs [see s«j)., H., 5]. 13. FiGUEES [see sup., II., 6]. 14. Counsel's Signature. 15. Printing [see swp., 11., 8.] 16. Marking Date op Delivery [see sitp., II., 9]. 17. Delivery. (a) How made [see sitp., n., 8, 10]. (6) Within what Time. (c) Consent for Fwrther Time. (A) Default [see Judgment]. 18. Amendment. (a) By Defendamt. (1) Where Allowed. 686 ' " Pleadmg. (2) Application. (3) Time. (4) Nottobe MadePendingDemurrer. |.„ „ ,„, (5) How Made. *" ^^^^ ''^- "■■^^J. (6) Delivery of Amended Pleading. (7) Negleot to Amend and Deliver. (b) By PhMUff [see II., 12, (a).] 19. Admission op Teuth of [see swp., II., 13]. 20. Striking Out. 21. Withdrawal. VI. FUETHEB DEFENCE. Til. SET-OEP AND COUNTEE-CLAIM. 1. Power to Grant Belief on. 2. Claims Allowed bt. 3. By whom Made. 4. Against whom Made. 5. Title and Name and Address of Defendant. {a) Against Plaintiff only [see sup., II., 1]. (6) AgaAnst Plaintiff a/nd Another. 6. Allegations. 7. Paragraphs, 8. Figures [see sitp., II., S]. 9. Claims for Belief. 10. Signature bt Counsel [see siip., II., 7]. 11. Printing [see sup., II., 8.] 12. Marking Date of Delivbet [see sup., II., 9]. 13. Delivery. (a) To PlaimUff Alone [see swp., II., 10 ; V., 17]. (b) To Pla/mtiff and Another Person, Party. 14. Service on Person not Party. 15. Appearance to [see Appeahanob]. 16. Amendment. (o) Without Leave. (b) With Leave. . ■ 17. Application to Exclude. 18. Steikino Out. 19. Effect of Discontinuance. 20. Judgment on Counter-claim [see Judgment]. , VIII. NOTICE CLAMING BELIEF AGAINST CO-DEFENDANTS. IX. CONFESSION OP DEFENCE. X. BEPLY OF THE PLAINTIFF. 1. Title and Name and Address op Plaintiff. 2. Allegations. (a) Conciseness [see sv/p., II., 2 (a)]. (b) Material Facts and Qrownds of Reply. (c) Consistency with Statement of. Claim. (d) Facts Presumed. (e) Effect of Documents. (f) Im/pUed Contracts or Relations. ^ [See sup., II., 2], (p) Malice and Other CondMions of Mind. (h) Notice. .3. Denials. 4. Eepltino and Demurring [see post, XVII.] .5. Paragraphs. >6. Figures. 7. Counsel's Signature. '8. Printing. ■S. Marking Date of Deltvert. Pleading. 687 10. FlLlNO. 11. Dblivbkt. (a) How made. (6) Within what Time. (c) De/aitW [see post, XIV., 2]. 12. Amendment. (a) Bi/ PlaAntiff. (b) By Defendant [see sup., II., 12 (a)]. 13. Admission of Trvtk of [see sup., II., 13]. 14. STRIKIN& Out. XI. PUBTHEE EEPLT BY PLArNTrPF. Xn. EEPLT TO COUNTEE-CLAIM OP PEESON OTHEE THAN PLAINTIPP. 1. Title and Name and Address op Pabtt Dblxvebino. 2. AiiLEaATioNS [see sup., II., 2.] 3. DENiAiB [see svp., U., 3.] " 4. Pakaqkaphs. ' 1 ' 5. PlOTJKES. I 6. Counsel's Signatttbe. )■ See s-u^., II., S-9 7. Peintinq. I 8. MAEKIN& Date of Dblitbbt. J 9. Delivbey. (a) Sow made [see sv/p., II., 10.] (b) When made. 10. Amendment [see sv/p., II., 12.] 11. Stbiking Out. Xin. PLEADINGS SUBSEQUENT TO EEPLT. • 1. Wheee Allowed. 2. Joining Issue bt. 3. Deliteet. (a) How made [see sitp., II., 10.] (6) When made. xrv. CLOSE OP THE PLEADINGS. 1. Bt Joining Issue. 2. Bt not Pleading. XV. DIRECTING ISSUES. XVI. THIED AND FOUETH PAETT NOTICES. 1. Explanation of Pbocbdubb. 2. Claims bt Defendant foe Conteibution, Indemnity, OB Eelief. (a) Notice. (1) Leave to Serve. (2) Piling Copy. (3) Ponn. (4) Service. (6) Appeara/nce. (c) Directions for Determmg Questions. 3. Detbeminino Questions so as" to Bind Thibd Pabtt. (a) Notice. (b) Directions for Determining Questions. 4. PouBTH Pabtt Notices. XVII. DEMUEEEE. 1. Wheee Allowed. 2. Combination of Dbmubbee to Pabt and Pleading tj OTHBB Pabt. 3. Leave to Dejiub and Plead to whole ob same Paet. 4. Gbounds. 5. Poem. 688 PleaiMng. ! ; 6. Delivebt. 7. Sbttino Aside. 8. Entby foe Abqument. (a) By Whom made. (b) How made. ' (c) When made. (d) Form,. (e) Notice of Entry. 9. DEPAtrLT or Bntet and Notice. 10. Efjtect on Powhk of Amendment. 11. HEASINa. 12. Allowing Demtteber. 13. Oteeeuling Demijeebe. 14. Affeal fbom Obdeb Made. 15. Amendment of PtEADiNa [see sup., 12.] XVIII. JUDGMENT ON ADMISSIONS IN PLEADING [see Judgment.] I. MEANING OP "PLEADING." [Where not repugnant to the subject or context] "pleading" shall include any petition or summons, and also shall include the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintifE to any counter- , claim of a defendant : (J. A., 1873, s. 100 ; O. LXin.) II. GENERAL RULES. 1. Title, and Name and Addbess of Party Deiivebing. Every pleading in an action .... shall he marked on the face .... with the reference to the letter and number of the action, the division to which and the judge (if any) to whom the action is assigned, the title of the action, the description of the pleading, and the name and place of business of the soKoitor and agent, if any, delivering the same, or the name and- address of the party delivering the same if he does not act by a solicitor : (O. XIX., r. 7.) If, during the action, an order is made in consequence of an assignment of a party's interest, a fresh title must be added in which the position of the person added and substituted as a party must be shown : {Seear v. Lawson, Ot. of App. Dec. 1st, 1880.) 2. Allegations. (a) Sow Facts Stated. Every pleading shall contain as concisely as may be a statement of the material facts on which the party pleading relies, bat not the evidence by which they are to be proved : (O. XIX., r. 4; and see Costs.) Bach party in any pleading, not being a petition or summons, must allege all such facts not appearing in the previous pleadings as he means to rely on, and must raise all such grounds of defence or reply, as the case may be, as if not raised on the pleadings would be likely to take the opposite' party by surprise, or would raise new issups of fact not arising out of the pleadings, as for instance, fraud, or that any claim has been barred by the Statute of Limitations, or has been released : (O. XIX., r. 18.) Such statements shall be as brief as the nature of the case will admit : (O. XIX., r. 2.) As to prolixity, see Costs. (6) Consistenoy with Previous Pleading. No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of Pleadiny . 689 fact inconsistent with the preTious pleading's of the party pleading the same : (O. XIX., r. 19.) (c) Facts Presumed. Neither party need in any pleading allege any matter of fact which the law presumes in his fayour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied. [E.g. — Consideration for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration, as a substantive ground of claim] : (O. XIX., r. 24.) (d) Effect of Documents. Wherever the contents oi any document are material, it shall be snfBeient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the documents or any part thereof are material: (O. XIX.,' r.24.) (e) Implied Contracts or Relations. Wherever any contract or any relation between any persons does not arise from an express agreement, but is to be implied from a series of letters or conversations, or otherwise from a number of circumsta^ices, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances, without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative : (O. XIX., r. 27.) (/) Malice, and other Conditions of Mind. Wherever it is material to allege malice, fraudulent intention, know- ledge, or ottier condition of the mind of any person, it shall be sufficienij to allege the same as a fact without setting out the circumstances from which the same is to be inferred : (O. XIX., r. 25.) (g) Notice. Wherever it is material to allege notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice be material : (O. XIX., r. 26.) 3. Denials. (a) Generally. When a party in any pleaiding 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 certaiu 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 : (0. XIX., r. 22.) See Thorp v. Houldsworth, L. Rep. 3 Oh. Div. 637. Each party must deal specifically with each allegation of fact of which he does not admit the truth : (O. XIX., r. 20 ; and see post, XIV.) Every allegation 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 : (O. XIX., r. 17.) T Y 690 Pleaddng. (6) M^presentative Capacity or Constituiion of Firm. If either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically: (0. XIX., r. 14.) (c) Contract Alleged. When a contract is alleged in amy pleading, a bare denial of the contract by the opposite party shall be construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds or otherwise : (0. XIX., r. 23.) See Clarh v. Callow, 46 L. J. 53, Q. B. 5. Demubbing and Pleading Togethee. [See post, XVII., 3.] ' 5. Paeageaphs. Such statement [of facts in each pleading must b^ divided into paragraphs, numbered consecutively .... each paragraph containing, as nearly as may be, a separate allegation : (O. XIX., r. 4.) 6. PlGtTEES. Dates, sums, and numbers shall be expressed in figures and not in words : (O. XIX., r. 4.) 7. SiGNATUEB OF OOTJNSEL UnNECESSAET. Signature of counsel shall not be necessary : (0. XIX., r. 4 ; but see post. III.) 8. Peinting. Every pleading which shall contain less than three folios of seventy-two words each (every figure being counted as one word) may be either printed or written, or partly printed and partly written, and every other pleading, not being a petition or summons, shall be printed : (0. XIX., r. 5.) 9. Marking Date op Dblivdet. Every pleading in an action .... shall be marked on the face with the date of the day on which it is delivered : (O. XIX., r. 7.) 10. Deliveet. Every pleading in an action shall be delivered between parties : (O. XIX., r. 7.) r V, Every pleading or other document required to be delivered to a party, or between parties, shall be delivered in the manner now in use to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor : (O. XIX., r. 6.) Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on which the of&ces are closed, and by reason thereof such 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 the offices shall next be open : (O. LVII., r. 3.) No pleading shall be ... . delivered in the Long Vacation, unless directed by a court or a judge : (O. LVII., r. 4.) The time of the Long Vacation, shall not be reckoned in the com- putation of the times appointed or allowed by these rules for ... . delivering any pleading unless otherwise directed bv a court or a iudge : (O. LVII., r. 5.) J J 6 A court or a jurljjR shall have power to enlarge or abridge the time Pleading. 691 appointed by these mles, or fixed by suny order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or allowed : (O. LVII., r. 6.) 11. Filing. If no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer : (O. , XIX., r. 6.) The time of the Long Vacation shall not be reckoned in the com- putation of the times appointed or allowed .... for filing .... any pleading, unless otherwise directed by a court or a judge : (O. LVII., r. 5 ; and see Time.) Where an action proceeds ia a district registry all pleadings and other documents required to be filed shall be med in the district registry : (0. XIX., r. 29.) When a cause in the Chancery Division is proceeding in a district registry, all certificates of the chief clerk and taxing masters, and aU affidavits and other documents (required to be filed) used in London before the judge in chambers, or before any taxing master or referee of the court, aiid not already filed in the district registry, shall be filed in the same office as they would have been filed in if the proceedings had originally commenced in London ; and if the court or judge shall so •direct, office copies thereof shall be transmitted to the district registry : (0. XIX., r. 29a, March, 1879.) 12. Ajmendmbnts. (a) Where Allowed. All such amendments shall be made as may be necessary for the purpose of determining the real question or questions in controversy between the parties i (O. XXVH., r. 1.) [In case of non-compUanee with the rules the] proceedings may be set aside either wholly or in part as irregular, or amended or otherwise dealt with in such manner and upon such terms as a court or a judge shall think fit : (O. LIX.) (6) Application for. In aU cases not [otherwise] provided for by the preceding rules of this order — application for leave to amend any pleading maybe made byieither party to the court or a judge in chambers, or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may seem just : (O. XXVII., r. 6.) Leave to amend at the trial ought to be given where there has been a bona fide mistake in pleadiag [Tildesley v. Sarper, L. Hep. 10 Oh. Div. 393 ; 39 L. T. Rep. N. S. 552.) No affidavit as to the nature of the proposed amendment is necessary : (Cargill v. Bower, L. Rep. 4 Oh. Div,781 ; 46 L. J. 176, Oh.) A party will not at the trial be alMWed to alter the substance of the case : (Byrd v. Nunn, L. Rep. 5 Ch. Dhr. 781 ; 25 W. R. 749, affirmed, - L. Rep. 7 Ch. Div. 284 ; 47 L. J. 1, Oh. ; 26 W. R. 101). No pleading can be amended after final judgment: {Attorney-General V. GovMcil of Bvrmingham, L. Rep. 15 Oh. Div. 423; 43 L. T. Rep. N. S. 77.) (c) Time for Making. The amendment must be made within the time allowed by the order : (se^post.) TT 2 692 Pleading. No pleadings shall be amended .... in the long vacation, unless directed by a court or a judge : (O. LVII., i. 4.) The time of. the long vacation shall not be reckoned in the computation of the times appointed or allowed by these rules for .... amending .... any pleading, unless otherwise directed by a court or a judge: (O. LVII., r. 6.) (d) Not made pending Demurrer. 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 or a judge ; and no such order shall be made except on payment of the costs of the demurrer : (O. XXVIII., r. 7.) (e) How m,ade. A pleading may be amended by written alterations in the pleading which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the pleading difficult or LQconvenient to read, in either of which cases the amendment must be made by delivering a print of the pleading as amended. (O. XXVII., r. 8.) 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 " : (O. XXVII., r. 9.) (/) Delivery of Amended Pleadi/ng. Whenever a pleading is amended, such amended pleading shall be delivered to the opposite party within the time allowed for amending the same : (O. XXVII., r. 10.) (g) Neglect to Amend and Deliver. If a party who has obtained an order for leave to amend a pleading delivered 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 is extended by the court or a judge : (O. XXVII., r. 7.) 13. Admission of Opponent's Pleading. Any party to an action may give notice, by his own statement or other- wise, 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 : (O. XXXII., r. 1.) 14. Dbmubrbe. Any pleading may be demurred to : (O. XXVII., r. 1 ; and see post, xvn.) 15. PabTicttlabs. The Chancery Division has power to order a party to give particulars of pleading. If the action is a so-called common law action, as for money lent, particulars will be ordered almost as a matter of course, as in actions at common law before the Judicature , Acts. But in so-caQed equity actions, as for moneys due under a partnership or a charge, a strong case must be shown on affidavit, or particulars will not be allowed to be asked for. The proper practice is, if a defence can be put in, to order that to be Pleading. , 693 done first, and then to allow interrogatories to be put : (Benbow v. Low, Ct. of App., Nov. 4th, 1880; Augustinus v..Nerinchx, 70 L. T. 24.) A party ordered to give another particulars must give him such infor- mation as a reasonable man would require respecting the matters against which he is called on to defend himself : {Bennie v. Beresford, 15 M. & W. 78 ; Harbord v. Monk, 38 L. T. Rep. N. S. 411.) A plaintiff may be ordered to give particulars of items which are in his claim placed to the defendant's credit : {Godden v. Corsten, L. Rep. 6 C. P. Div. 17 ; 41 L, T. Eep. N. S. 527.) The application must, unless under special circumstances, be applied for before a subsequent pleading is delivered : (Ch. Archb., 11th edit. 1441.) The application is by summons. In applications by defendants in actions of tort, special grounds, should be shown by affidavit: {Sorlock v. Lidiard, 10 M. & "W. 677.) Where credit is given in the particulars for specific sums, such sums are not to be pleaded by way of payment or set-off by the other party, but it is otherwise when the claim is for a certain balance without stating the amount credited : (R. G. T. T. 1853, r. 13.) Particulars have no other effect on pleadings, and cannot be looked at to explain them : [JDempste)- v. Pwrnell, 3 M. & G. 375 ; Kilner v. Bailey, 5 M. & W. 382.) in. STATEMENT OP CLAIM. 1. Where TJnnecbssabt. The plaintiff need liot deliver a statement of claim when the defendant has stated in his memorandum of appearance that he does not require one to be delivered : (see O. XIX., r. 2 ; O. XXI., r. 1 ; App. A. p. I., 6.) [The plaintiff may, however, deliver his claim, though not required to do so, but in such case] the court or a judge shall make such order as to the costs occasioned thereby as shall seem just, if it appear that the delivery of a statement of claim was unnecessary or improper : (O. XXI., r. 1.), In short causes in the court of Malins, T.C., a statement, of claim, though not requii-ed by the defendant, must be delivered (Breton v. Moehett, W. N. 1875, p. 256 ; 33 L. T. Rep. N. S. 684 ; Boyes v. CooTe, W. N. 1876, p. 280; 33 L. T. Rep. N. S. 778), but in the RoUs Court and the Court of Hall, Y.C., it is unnecessary : (Taylor v. Duckett, W. N. 1875, p. 193 ; Green v. Coleby, L. Rep. 1 Ch. Div. 693 ; 45 L. J. 303, Ch.) As to dispensing with a statement of claim in an action for adminis- tration, see Be Huekwell, W. N. 1879, p. 86. 2. Notice in Liev op. Where the writ is specially indorsed, and the defendant has not dis- pensed with a statement of claim, it shall be sufficient for the plaintiff to deliver as his statement of claim a notice to the effect that his claim is that which appears by the indorsement upon the writ, unless the court or a judge shall order him to deliver a further statement. Such notice may be either written or printed or partly written and partly printed, and may be in the form No. 3 in Appendix (B), and shall be marked on the face in the same manner as is required in the case of an ordinary state- ment of claim : (O. XXI., r. 4.) A further statement was ordered in Schomberg v. ZoebeUi, W. N. 1876, p. 106. , n ■, , When application to sign judgment has been refused, and leave given to defend, no notice is necessary : (Athins v. Taylor, W. N. 1876, p. 11 ; Ma/rgate Pier and Ea/rbour Company v. Perry, id., p. 52.) 694 ' Pleading. Where the plaintifB's writ was indorsed for an injunction, and other relief, and for payment of a sum of lOOOZ., alleged to have "been received by the defendant as his solicitor, and the plainti:ff was ordered to deliver a statement of claim on or before the 12th Jan., and on the 10th Jan. he delivered a statement of claim in person, and on the 12th his solicitor, who had been that day served with a siunmons to set aside the stateii ent of claim for irregularity, delivered a notice that his claim appeared by the indorsement on the writ, it was held, that the writ was not specially indorsed within the meaning of O. III., r. 6, and that the statement ai claim delivered by the solicitor must be set aside : {Yeatman v. Snow, 42 L. T. Bep. N". S. 502 ; 28 "W. B. 574.) The form is as follows : 18 . [Here put the letter and nvmber.'] In the High Ootut of Justice, Division. Between A. B. Plaintiff, and C. D. Defendant. The particulars of the plaintiff's complaint herein, and of the relief and remedy to which he claims to be entitled, appear by the indorsement upon the writ of summons. (App. B.) Where a plaintiff, the writ being specially indorsed, delivers a notice, the indorsement, coupled with the notice, is to be treated as a statement of claim for all purposes, and the defendant may therefore demur to it. An allegation in such indorsement, that the money claimed is " owing," where no consideration is disclosed, is not suf5cient to support the de- fendant's alleged promise : {Robertson v. Howard, L. Bep. 3 C. P.. Div. 288 ; 38 L. T. Bep. N. S. 715 ; 47 L. J. 480, C P.) When the plaintiff is Ordered to deliver such further statement it shall be delivered within such time as by such order shall be directed, and if no time be so limited then within [six weeks from entry of appear- ance] : (O. XXI., r. 4.) 3. Title, Name, and Addeess of Plaisttipf. [See the General Bnle, sup., 11., 1.] In an action by the Attorney-General at the relation of another person the title " information " or " information and statement of claim," is improper : {Attorney-General v. 8Krewsbv/ry Bridge Gommavm, 42 L. T. Bep. N. S. 79 ; W. N. 1880, p. 23.) 4. Allegations. (o) Conciseness [see the General Bule, sv/p., II., 2 (a).] The statement of claim should be concise {Herring v. Bisehoffsheim, W. !^. 1876, p. 77 ; and see Bartlett v. Boche, id., 214 ; Harbord v. Monk, 38 L. T. Bep. N. S. 411), i.e., admissions should not be pleaded : {Davy v. Ga/rrett, L. Bep. 7 Ch. Div. 473 ; 38 L. T. Bep. N. S. 77 ; 47 L. J. 218, Oh. ; 26 W. B. 110.) (6) Material Facts. [See the General Bule, svp., TL., 2 (a).] In an action for the recovery of land by an heir-at-law, it is not sufficient to say that the plaintiff is heir-at-law ; his pedigree should be shown : {PhilUps v. Phillips, L. Bep. 4 Q. B. Div. 27 ; 39 L. T. Bep. N. S. 556 ; 48 L. J. 125, Q. B. j 27 W. B. 436.) The statement of claim in an action for the .recovery of land, after alleging facts which would show a title in Prances Evelyn, contained a statement that " the said Prances Evelyn died intestate as to real estate Pleading. 695 iind leiaTing Sir Hugh Evelyn heir-at-law," and then stated facts which showed a title in the plaintiff to Sir Hugh Evelyn's estate. Held, on a summons to strike out the paragraph above stated, that it was not embarrassing, and was a sufficient statement of the facts on which the plaintiff relied under Order XIX., r. 4 : {Evelyn v. Evelyn, L. Eep. 13 Oh. Div. 138 ; 42 L. T. Rep. N". S. 248 ; 49 L. J. 18, Oh. ; 28 W. R. 531.) In an action against a husband and wife, married after the 30th Jidy 1874, to recover a debt contracted by the wife before marriage, it is not necessary that the statement of claim should allege that the husband has received any of the assets of the wife : {Matthews v. Whittle, L. Rep. 13 Oh. Div. 811 ; 43 L. T. Rep. N. S. 114 : 28 W. R. 822.) It is nqt sufficient, when an agreement is relied upon, for the party pleading it to state generally that " it was agreed to, &c." He should also state whether the agreement was in writing or not, and generally the facts which support the allegation of an agreement : {Turquand v. Fearon, L. Rep. 4 Q. B. Div. 280; 40 L. T. Rep. N". S. 543; 48 t. J. 341, Q. B.) The averment that all conditions were performed is still material and proper : {Jones v. Qmnn, 40 L. T. Rep. N. S. 135.) As to using the forms under the old procedure, see also Bartlett v. Boche, W. N". 1876, p. 54; Watson v. Bodwell, L. Rep. 3 Oh. Div. 380.) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly : (0. XIX., r. 9.) (c) Facts presv/med [see the general rule, swp., II., 2 (c)]. {d) Effect of Docvmients. [See the general rules, sup., II., 2 {d) The setting out of many documents is a ground for striking out : {Bavy V. Garrett, 38 L. T. Rep. N. S. 77 ; 47 L. J. 218 ; 26 W. R. 110.) (e) Implied Contracts or Relations [See the general rule, svp., II., 2 (e) ; Bagot v. Easton, L. Rep. 7 Oh. Div. 1 ; 37 L. T. Rep. N. S. 369 ; 26 W. R. 66.] (/) Malice and other Conditions of Mind. [See the general rule, svp., II., 2 (/)] {g) Notice [see the general rule, sup., II., 2 (y)] 5. Paeageaphs. [See the general rule, sup., II., 5.] 6. FiGTJEES. [See the general rule, sup., II., 6.] 7. Claims foe Relief. Every statement of claim shall state specificaUy the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief: (O. XIX., r. 8.) If the plaintiff's claim be for discovery only, the statement of claim shall show it : {Id.) As to alternative and inconsistent relief, see Ede v. Vyse (W. N. 1877, pp. 98, 180) ; Child v. Stennimg (L. Rep. 5 Oh. Div. 695 '; 38 L. T. Rep. If. S. 232 ; 47 L. J. 371, Oh.) ; Bagot v. Easton (L. Rep. 7 Oh. Div. 1 ; 37 L. T. Rep.'N. S. 369; 47 L. J. 225, Oh.; 26 W. R. 66); Hall v. Old Tala/rgoch Company (45 L. J. 775, Oh.) ; Evam,s v. Bavis (L. Rep. 10 Oh. Div. 747), and Wbit of Summons. Further relief only includes what is consistent with what is expressly asked : {Ca¥gill v. Bower, L. Rep. 10 Oh. Div. 502.) 696 Pleading. If the plaintifE. omits from his statement of claim claims made by the writ, he will be deemed to have abandoned such claim : {Id.) No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the court to make binding declarations of right without granting consequential relief : (15 & 16 Yiet. c. 86, s. 50.) This section is still in full -vigour : {Cox v. Barker, L. Rep. 3 Ch. Div. 369 ; and see Declabation of Right.) 8. Statement as to Yenue. There shall be no local venue for the trial of any action ; but, when the plaintifE proposes to have the actibn tried elsewhere than in Middlesex, he shall in his statement of claim name the county or place in -which he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so named. Where no place of trial is named in the statement of claim, the place of trial shall, unless a judge otherwise orders, be the county of Middlesex : (O. XXXYI., r. 1.) This applies to the Chancery Division : (JRechnayne v. Vauqhdn, 24 W. R. 983.) 9. SiGNATTJBE OF OOXJNSEL. It is unnecessary (see sup., 11., 7), but Malins, Y.O., is favourable to the practice of signing : (W. N". 1876, pp. 17, 134.) 10. Pbinting. [See the general rule, sup., II., 8.] The court caimot dispense with the printing : {Attorney-General v. Moass, 21 S. J. 631.) 11. Marking Date oe Delivery. . [See the general rule, sv/p., II., 9.] ' , 12. Delivekt. (a) How made [see general rule, sup., II., 10]. ' (6 When made. Unless the defendant in an action at the time of his appearance shall state that he does not require the delivery of a statement of complaint, the plaintifE shall within such time and in such manner as .... prescribed, deliver to the defendant after his appearance a statement of his complaint and of the relief or remedy to which he claims to be entitled : (O. XIX., r. 2.) (c) Within what Time. .... The delivery of statements of claim shall be regulated as follows : — If the defendant shall not state that he does not require the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the court or a judge, deliver it within six weeks from the time of the defendant's entering his appearance. The plaintiff may, if he think fit, at any time after the issue of the writ of summons, deliver a statement of claim, with the writ of summons, or at any time afterwards, either before or after appearance, and although the defendant may have appeared and stated that he does not require the delivery of a statement of claim: Provided that in no case where a defendant has appeared shall a statement be delivered more than six weeks after the appearance has been entered unless otherwise ordered by the court or a judge: (O. XXI., r. 1.) See svp. II., 10, and Time. Pleading. 697 Where by a slip of a solicitor's clerk the claim was served two, days too late, further time was given : [Canadian Oil Works Corporation v. ^ay, 38 L. T. Rep. N. S. 599.) Where an order has heeu made dismissing an action unless a statement of claim is delivered within a certain time, and default is made, an order cannot subsequently be made extending the time : ( Whistler v. Hancock, L. Rep. 3 Q. B. Div. 83 ; 37 L. T. Rep. N. S. 639 ; 47 L. J. 152, Q. B. ; 26 W. R. 211; followed in Wallis v. Hepburn, L. Rep. 3 Q. B. Div. 84 n.) Where an order having been made on the 6th May dismissing the action for want of prosecution if the statement of claim were not delivered within fourteen days, on the 19th May the plaintiff took out a summons returnable the next day, the last of the fourteen days, for further time to deliver statement of claim, and the summons was, on the 20th, adjourned, by the consent of the parties in writing indorsed thereon, till the 21st, and on the 21st»an order of a master giving seven days more for delivery of statement of claim was made, it was rescinded on the ground that the action was at an end on the 20th May : {King v. Dav&nport, L. Rep. 4 Q. B. Div. 402 ; 27 W. R. 798 ; but see Burke v. Rooney, L. Rep. 4 C. P. Div. 226 ; 48 L. J. 601, 0. P. ; 27 W. R. 915. , {d) Default [see Judgment ; Dismissal of Action. 13. Piling. If no appearance has been entered .... [the statement of claim] shall be deHvered by being filed with the proper officer [a master of the Supreme Court, or a district registrar] : (O. XIX., r. 6.) In actions [specially] assigned to the Chancery Division [(see Action)] and in all other actions — not by the rules in [Order XIII.] otherwise specially provided for [viz. for debts or liquidated demands, for detention of goods and pecuniary damages or either of them, or for the recovery of land with or without a claim for mesne profits, arrears of rent, or damages for breach of contract] in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintilE of a proper affidavit of service the action may proceed as if , such party had appeared: (O. XIII., r. 9; Menion v. Metcalf, W. N. 1877, p. 142.) Where a statement of claim is served personally on a defendant at the same time as the writ is served, and such defendant does not enter an appearance in the action, it is not necessary that the statement of claim shall be filed in order to obtain judgment by default against such defendant : (Benshav) v. Renshaw, 42 L. T. Rep. N. S. 353 ; 49 L. J. 127, Ch. ; 28 W. R. 409.) Where a defendant became bankrupt after service of notice of trial, and the common order of revivor was then made against and served on his trustee, who did not enter an appearance, and notice was served on him that the action was restored to the paper for trial, but he did not appear at the trial : It was held that it was not necessary for the plaintiff to file the pleadings or a notice of motion or judgment as against the trustee : (Chorlton v. Dickie, L. Rep. 13 Ch. D. 160 ; 41 L. T. Rep. N. S. 467 ; 49 L. J. 40, Ch. ; 28 W. R. 228.) 14. Amendment. (a) What allowed. [See sv^., II., 12]. Leave has been given, even at the hearing, to amend a biU in such a way as to raise an entirely new case : [Budding v. Murdock, L. Rep. 1 Ch. Div. 421 ; Roe V. Davies, L. Rep. 2 Ch. Div. 729. 698 , - Pleadmg. It is no otojeotion that a case can be made much stronger by tie amendment : {Chesterfield ColUery Compcmy t. Black, W. N. 1877, p. 65.) Leave has been giren to amend the writ and claim so as to turn an action into an information and action, but without prejudice to a pending action, and on the Attomey-General's sanction having been obtained : {GaUwell v. Pagham Harbov/r EteclamaUon Company, L. Rep. 2 Oh. Div. 221.) Where the defendant in an action for speciftc perf drmance of a contract of sale was proved to be entitled only to a moiety of the property, leave was given to amend by claiming specific performance as to the moiety with compensation : {Ha/rdy v. Echersley, W. N. 1877, p. 199.) [See also King v. Corke, L. Rep. 1 Oh. Div. 57; Noad v. Murrow, 40 L. T. Rep. N. S. 100; Collett v. Goode, L. Rep. 7 Oh. Div. 842; Mozley v. Cowie, 38 L. T. Rep. N. S. 908 : 47 L. J. 271, Oh. ; 26 W. R. 854; Cargill v. Bower, L. Rep. 10 Oh; Div. 502; 47 L. J. 649, Oh.; Newhy V. 8ha/rpe, L. Rep. 8 Oh. Div. 39; 38 L. T. Rep. N. S. 583; 47 L. J. 617, Oh. ; Blenhorri v. Penrose, 70 L. T. 97-8.] (6) By Plaintiff. (1) Without Leave. 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 delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared : (O. XXVII., r. 2.) [Where such amendment without leave has been made] the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the court or a judge to disallow the amendment, or any part thereof and the court or judge 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 othervidse as may seem just: (O. XXVII., r. 4.) (2) With Leave. Where any party has^ amended his pleading [without leave] the other party may apply to the court or a judge for leave to plead or amend his former pleading within such time and upon such terms as may seem just : (O. xxvn.,-r. 5.) If a demurrer to the whole of a statement of claim is allowed [the court may] allow the stattoent of claim to be amended : (O. XXVIII., r. 9.) The court or a judge may, at any stage of the proceeding, allow [the plaintiff] to alter his statement of claim .... and all such amendments shall be made as may be necessary for the purpose of determiaing the real question or questions in controversy between the parties : (O. XXVII., r. 1.) When a plaintifB claimed specific performance, and, after defence put in, struck out his claim for specific performance, and claimed a Hen, his action was stayed till he had paid all costs up to the time of amendment : (Blaakmore v. Mwa/rds, W. N. 1879, p. 175.) Application. [See sup., 11., 12 (6).] Time. [See sup., II., 12 (c>.] When the Secretary of State for War ought to have been joined, leave was given at the trial to amend the claim by making hun a party : {Sawleyr. Steele, W. N. 1877, p. 189.) Leave was given at the hearing to amend a claim for the performance Pleading. 699 of aa agreement to settle into a claim for damages for wrongful dismissal : (Ballinger v. St. Alhyn, 41 L. T. Rep. ST. S. 406.) Where, from facts elicited in the examination of -witnesses, and which had been in the exclusive cognisance of the defendants, it appeared that the true point at issue between the parties was not raised by tne pleadings as they stood, the plaintiiEs obtained leave to amend their statement of claim, but without adducing fresh evidence ; the defendants being allowed both to amend their defence and to adduce fresh evidence. The plaintiffs having succeeded on the issue thus raised, and the court being of opinion 'that the defect in the original pleadings arose from the defendants- default in withholding information, the whole of the costs, including those caused by the amendment, were awarded to the plaintiffs : {Nobel's Explosive Company v. Jones, 42 L. T. Rep. N. S. 754 ; 28 W. R. 653.) See also as to amendments at the hearing. Budding v. Murdoch, sup : Bob v. Davis, sup. ; Noad v. Murrow, sup. ; Mozley v. Cowie, sup. ; Newby v. Sharpe, sup. ; Gafgill v. Bower, sup. ; Balsey v. Brotherhood, L. Rep. 15 Oh. Div. 514 ; 43 L. T. Rep. JST. S. 366.) (3) Not made Pending Demurrer. "^ (4) How made. / [See the General Rules, (5) Delivery of Amended Statement. C sup., II., 12.] (6) Neglect to Amend and Deliver. J (fe) By Defendant [see sup., II., 12 (o)] g (c) In lieu of New Assignment. No new assignment shall hereafter be necessary or used. But every- thing which has heretofore been alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim : (O. XIX., r. 14.) (d) Where Defendant added. If a statement of claim has been delivered previously to [a] defendant being added, the same shall, unless otherwise ordered by the court or a judge, be amended in such manner as the making such new defendant a party shall render desirable, and a copy of such amended statement of claim shall be delivered to such new defendant at the time when he is served with the writ of summons or notice or afterwards, within four days after his appearance : (O. XVI., r. 16.) 15. Admission of Teitth or. [See sup., II., 13.]. 16. Steiking Ottt. The court, or a judge, may, at any stage of the proceedings .... order to be struck out or amended any matter in such statement [of claim]- .... which may be scandalous, or which may tend to prejudice, embar- rass, or delay the fair trial of the action ; (O. XXVII., r. 1 ; see also sup. II., 12 (a).] The power to strike out is in the discretion of the court, with which the Court of Appeal -will not, as a rule, interfere (Golding v. Wharton Salt Worhs Company, L. Rep. 1 Q. B. Div. 375 ; Watson v. Bodwell, L. Rep. 3 Ch. Div. 380), though it has done so : {Heap v. Morris, L. Rep. 2 Q. B. Div. 630.) The power of striking out has been exercised in the following cases : When the pleading was prolix, where e-vidence was pleaded {Marsh v. Mayor of Pontefract, W. N. 1876, p. 6) ; where, in taa action for fraudulent misrepresentation, allegations of the motives therefor, or the scheme thereof, were set out : {Herring v. Bischoffsheim, W. N. 1876, p. 77 ; and see W. N. 1876, p. 56.) The whole of a claim was struck out in Cashin v. Craddock, L. Rep. 700 Pleading. 3 Ch. Div. 379 ; see also Turquand v. Fearon, L. Rep. 4 Q. B. Div. 285 ; 40 L. T. Rep. N. S. 543; 48 L. J. 341, Q. B. ; Srmth v. Bicha/rdson,-Ij. Rep. 4 ,C. P. Div. 112; 40 L. T. Rep. N. S. 256; 48 L. J. 140, 0. P. ; 27 W. R. 230 ; Harbord v. Monk, 38 L. T. Rep. N. S. 411.) How Application Made, » An application to strike out may be by motion or summons :• {Goyle v. Cvming, 40 L. T. Rep. N. S. 455 ; Marriott v. Marriott, 26 W. R. 416.) 17. Withdrawal. [See Discontinuance and Withdrawal]. IV. FURTHER STATEMENT OF CLAIM. [See sup., III., 2.] V. STATEMENT OP DEFENCE. 1. Where Unnecessary. A defendant who has appeared in an action, and stated that he does not require the delivery of a statement of claim, and to whom a statement of claim is not delivered, may deliver a defence at ^ny time within eight days after his appearance, unless such time is extended by the court or a judge : (O. XXII,, r. 2.) The defendant need not deliver a statement of defence : {Hooper v. Giles, W. N. 1876, p. 10.) A statement of defence must be delivered where the writ is specially ^ indorsed, if the defendant has not dispensed with a statement of claim : (Atkins V Taylor, W. N. 1876, p. 11 ; Margate Pier and Harbour Com- ppmy V. Perry, Id., p. 62.) 2. By Leave. [Where the plaintiff has amended his statement of claim without leave] the other party may apply to the court or a judge for leave to plead .... witMn such time and upon such terms as may seem just : (O. XXYII., r. 5.) 3. Title and Name and Address op Dependant. [See the General Rule, sup., 11., 1.] 4. Allegations. (a) Conciseness. [See the General Rule, sup., II., 2 (a).] (6) Material Facts and Grounds of Defence. [See the General Rule, sup., II., 2 (a).] In an action for the recovery of land the defendant, if he relies upon an equitable title, must in his statement of defence allege the nature of the deeds and documents upon which he relies, and it is not sufficient to allege that "by virtue of divers mesne acts and mesne assurances in the Taw all the estate and interest of the plaintiff's predecessor in title" is now vested in the defendant : {Sutcliffe v. James, 40 L. T. Rep. N. S. 876 ; 27 W. R. 760.) Where the defendant relies upon several distinct grounds of defence [or] set off founded upon separate or distinct facts .... they shall be stated, as far as may be, separately and distinctly : (O. XIX., r. 9.) If any defendant claims to be entitled to any equitable estate or right; or to relief upon any equitable ground against any deed, instrument; or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, Pleading. 701 See the General Rules, sup., II., 2. the said courts respectively, and every judge thereof, shall give to every equitable e^ate, right, or ground of relief so claimed, and to .every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted in that court for the same or the like purpose before the passing of this Act : (J. A., 1873,' s. 24, sub-s. 2.) Every matter of equity on which an injunction against the prosecution of any .... cause or proceeding might have been obtained, if this Act had not been passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto : (J. A., 1873, s. 24, sub-s. 5.) Any defence which would, under the former procedure, have been an equitable defence, may be pleaded in the same manner as it might have been in an answer in Chancery : (Seap v. Marris, L. Rep. 2 Q. B. Div. 630.) (c) Facts Presumed. (d) Effect of Documents. (e) Im/plied/ Contracts or Relations. (/) Malice and other Condition of Mind, (g) Notice. 5. Deniais. [See the General Rules, sup., II., 3.] It shall not be sufficient for a defendant m his defence to deny generally the facts alleged by the statement of claim .... but [he] must deal specifically with each allegation of fact of which he does not admit the truth : (O. XIX., r. 20.] Where in an action on a joint and several promissory note against husband and' wife, their defence, so far as the husband was concerned, did not deny any allegation in the statement of claim, and raised no other defence for him, it was held to ,be an admission by him of all the statement of claim : [Jenleins v. Davis, L. Rep. 1 Oh. Div. 696.) The following paragraph was held bad : " The defendant denies aU and every the allegations in the several paragraphs of the statement of claim respectively contained :" {Jones v. Quinn, 40 L. T. Rep. N. S. 135.) A denial that " the terms of the arrangement between the defendant and the plaintiffs were definitely agreed upon as alleged " was held evasive : {Thorp v. Houldsworth, L. Rep. 3 Ch. Div. 637.) When the defence was that " the defendant denies that the song has been duly registered. The time of the first publication thereof, is not tmly entered on the register," the defendant was allowed to prove only that the time of first publication had been untruly entered, and not that the name of the publisher had been untruly stated : {Collette v. Goode, L. Rep. 7 Ch. Div. 842; 38 L. T. Rep. N. S. 504 ; 47 L. J. 371, Ch.) Where by his statement of defence, a defendant simply " put the pkintiffs to proof of the several allegations in their statement of claim," he was held to have admitted the facts alleged in the statement of claim : {Harris v. Gamble, L. Rep. 7 Ch. Div. 877 ; 38 L. T. Rep. N. S. 253 ; 47 L. J. 344, Ch.) Where the defendants in a foreclosure action " did not admit the correctness of the statements set forth in paragraphs 1, 2, 3, and 6 of the plaintiffs statement of claim, and required proof thereof," upon motion for judgment by the plaintiff upon adinissions in the pleadings under O. XL., r. 11, it was held that this was not a suflcient denial of the statement of claim, and amounted to an admission of the allegation, so as to entitle 702 Pleading. the plaintifE to judgment. But leave to amend was given upon payment of costs : (Rutter v. Tregent, L. Eep. 12 Oh. Div. 758 ; 41 L. T. Rep. N. S. 16 ; 48 L. J. 791, Oh. ; 27 W. B. 902.) Where the statement of claim alleged that the plaintiff's predecessor in title, lawfully authorised, signed an agreement with the defendant's predecessor in title, and the defence denied this in words following the words of the claim, and then alleged that the latter person was of unsound mind, and did not authorise anyone as his agent to sign the agreement, and denied that any agreement was signed by him or by any person by him lawfully authorised, it was held that the defendant could only_ enter into evidence to show the unsoundness of mind, not to show that the agent was not duly authorised : {Byrd v. Nunn, L. Rep. 7 Ch. Div. 284 ; 47 L. J. 1, Oh. ; 26 W. B. 101.) Where the statement of claim in an action against a lessee to set aside a lease granted under a power, stated that the donee of the power had received a specified sum as a bribe, and stated the circumstances .... the statement of defence denied that that particular sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given, it was 'held that the denial was evasive, and amounted to an admission that some bribe had been given ; but the Court of Appeal fave leave to amend the statement of defence : (Tildesley v. Ha/rper, ,. Rep. 10 Oh. Div. 393 ; 39 L. T. Rep. N. S. 552 ; see also Bossiter v. Miller, L. Rep. S Oh. Div. 648.) In an action for the price of goods, the defendant cannot rely on the Statute of Frauds unless it is expressly pleaded {Clarh v. Callow, W. N. 1876, p. 262 ; 46 L. J. 53, Q. B.) ; see also Johnasson v. Bonhote, 34 L. T. Rep. N. S. 745 ; Pullen v. Snehis, 40 L. T. Rep. N. S. 363 ; 48 L. J. 394, 0. P. ; 27 W. R. 534.) If matters are improperly denied, the court may make a special order as to costs : (see O. XXII., r. 4, and Costs.) 6. Pleading Not GriLTT. Nothing in these rules contained shall afPect the right of any defendant to plead not guilty by statute. And every defence of not guilty by statute shiOl have the same effect as a plea of not gnUty by statute has heretofore had. But if the defendant so plead he shall not plead any other defence without the leave of the court or a judge : (0. XIX., r. 16.) In every case in which a defendant shall plead the general issue, intending to give the special matter in evidence, by virtue of an Act of Parliament, he shall insert in the margin of the plea the words, " By Statute," together with the year or years of the reign in which the Act or Acts of Parliament upon which he relies for that purpose were passed, and also the chapter and section of each of such Acts,- and shall specify whether such Acts are public or otherwise, otherwise such plea shall be taken not to have been pleaded by virtue of any Act of Parliament ; and such memorandum shall be inserted in the margin of the issue, and of the Nisi Prius record : (Reg. Gen. Tr. T. 1853.) 7. Pleading in Abatement. No plea or defence shall be pleaded in abatement : (0. XIX., r. 13.) As to joining defendants, see O. XVI., r. 13 (Parties) ; and Kino V. RUdUn, L. Rep. 6 Oh. Div. 160. Although the form of objecting by means of a plea in abatement to the non-joinder of a defendant is abolished, the application to have such per- son included in the action ought to be granted or refused upon the same principles as those on which a plea in abatement would have succeeded or failed : (Per Oaims, L. 0. Kendall v. Samilton, 28 W. R. 97.) PleaMng. 703 8. Pleading Possession. No defendant in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession. And he may nevertheless rely upon any ground of defence which he can prove, except as hereinbefore mentioned : (O. XIX., r. 15.) 9. Pleading Payment into Cottet. Payment into court shall be pleaded in the defence, and the claim or cause of action in respect of which such pajrment shall be made shall be specified therein : (O. XXX., r. 1.) As to specifying the items for which the money is paid in, see Paraire V. Loibl, 43 L. T. Rep. N. S. 427.- A denial of the cause of action may generally be pleaded with such plea of payment: {Berdan v. Greenwood, L. Rep. 3Ex. Div. 251; 39L. T. Sep. N. S. 223 ; 47 L. J. 628, Ex. ; 26 W. R. 902 ; questioning Spurr v. Hall, L. Rep. 2 Q. B. Div. 615 ; 37 L. T. Rep. N. S. 313 ; 46 L. J. 693, Q. B. ; 26 W. R. 78.) It has been held in the Court of Appeal, in an action of Ubel, that the defence of an apology and payment into court, and that of justiftcation, can be legally pleaded together {Hawkesley v. Bradshaw, L. Rep. 5 Q. B. Div. 302 ; 42 L. T. Rep. N. S. 285 ; 28 W. R. 557.) 10. Pleading Matters abising afteb Action beofght. Any ground of defence which has arisen after action brought, but before the defendant has delivered his statement of defence, and before the time limited for his doing so has expired, may be pleaded by the defendant in his statement of defence, either alone or together with other grounds of defence : (O. XX., r. 1.) 11. Pleading and Demtjeeing. (See^os^XVn.) 12. Parageaphs. [See the General Rule, sup., II., 5.] 13. FlGTTRES. [See the General Ride, sup., II., 6.] 14. Counsel's Signature. [See the General Rule, sup., II., 7.] 15. Printing. [See the General Rule, sup., II., 8.] 16. Marking Date of Delivery. [See the General Rule, sup., II., 9.] 17. Delivery. The defendant shall within such time and in such manner as ... . prescribed deliver to the plaintiff a statement of his defence, set-ofE, or counter-claim, if any: (O. XIX., r. 2.) (a) Sow Made. [See sup., II., 10.] (6) Within What Time. Where a statement of claim is delivered to a defendant he shall deliver his defence within eight days from the delivery of the statement of claim, or from the time limited for appearance, whichever shaU be last, unless such time is extended;by the court or a judge (0. XXII., r. 1.) Unless he demurs : {Hodges v. Hodges, L. Rep. 2 Oh. Div. 112 ; 45 L. J. 750, Ch.) 704 PleadA-Tig. Where defendant has taken out a summons for particulars of the claim, the time for delivering the defence is suspended between the dates of the return of the summons and of delivery of the particulars, if the order is made. If the time expires pending the summons, and the order is made, the defence must be delivered on the day the particulars are delivered to the defendant. If the summons is dismissed, the defendant has the rest of the day in which to deliver his defence : (Chitty's Axchb. Pract., 11th ed., 96.) Where the claim has been amended by order, before the defence has been delivered, such delivery is in time if made within two days of the delivery of the amended claim, unless otherwise ordered : (C. L. P. A. 1852, s. 90.) Where leave has been given to a defendant to defend under O. XIV., r. 1 [in an action commenced by writ specially indorsed], he shall deliver his defence, if any, within such time as shall be limited by the order giving him leave to defend, or, if no time is thereby limited, then within eight days after the order : (O. XXII., r. 3.) As to the time where the defendant requires no statement of claim to be delivered: (see swp., 1.) (c) Consent for Further Time. Where one of several defendants in an action has delivered his defence, and the time for the plaintiff to deliver his reply to such defence has expired, but the plaintifP has, without the knowledge of that defendant, agreed in writing with the other defendants to extend the time for delivering their defences, that defendant cannot move to dismiss the action as against him for want of prosecution. A defendant's proper course under such circumstances is to write to the plaintiffs solicitor, and inquire how the action stands as regards the other defendants : {Ambroise v. Evelyn, inf.) If a plaintiff consents in writing to grant a defendant an extension of time for the delivery of his defence, an order for the purpose is unnecessary : {Ambroise v. JEvelyn, L. Rep. 11 Ch. Div. 769 ; 27 W. R. 639.) (d) Default. [See Judgment.] 18. Amendment. (a) By Defendant. (1) Where allowed. [Wh'erQ the plaintiff has amended his statement of claim without leave, after the defence has been delivered, and within time (see svp. m., 14)] the other party [the defendant] may apply to the court or a judge for leave to ... . amend his former pleading [defence] within such time and upon such terms as may seem just : (O. XXVU., r. 5.) Where the plaintiff delivers an amended statement of claim, after defence delivered, the defendant ought to obtain leave to amend his defence or deliver a new one. If he proceeds with his original defence, he will be taken to have admitted the amendments in the claim : (Boddy V. Wall, L. Rep. 7 Ch. Div. 164 ; 47 L. J. 112, Oh. ; 26 W. R. 348 ; see also Planet Building Society v. Part, W. N. 1878, p. 204.) The court or a judge may, at any stage of the proceedings, allow [the defendant] to alter his statement of i . . . defence .... and all such amendments shall be made as may be necessary for the purpose of determining the real question or questions in ■ controversy between the parties : (O. XXVII., r. 1.) Pleading. 705 [See the General Rules, sup., II., 12.] (2) Application. (3) Time. (4) Not to be Made Pending Demnirer. (5) How Made. (6) Delivery of Amended Pleading. (7) Neglect to Amend and Deliver. (6) By Plaintiff [see sup., II., 12, (a)]. 19. Admission of Tbtith of. [See sup., n., 13.] 20. SxRiKiNS Out. The court or a judge may, at any stage of the proceedings . . ; . order to be struct out or amended any matter in [the defence] which may be scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action : (O. XXVII., r. 1.) [And see sup., II., 12, (a).] ' A defence was struck out as scandalous in Coyle v. Cuming, 40 L. T.' Rep. N. S. 456. " Embarrassing " means bringing forward a defence which the defen- dant is not entitled to make use of : (per Jessel, M.R., Heugh v. Chamberlain, W. BT., 1877, p. 128; 25 W. R. 742.) Allegations of matter of law, which might be raised by demurrer, will be struck out as embarrassing : {StoJces v. Grant, L. Rep. 4 0. P. Div. 25; 27 W. R. 397.) Allegations in the defence in an action on an agreement, that it had been mutually rescinded by varying a term, that it' was void as an agreement and as a lease, that a new lease had been granted,, and that such lease was not granted on the terms of the agreement but at a higher rent, and that therefore if the defendant was not before released, he was released by that circumstance, were struck out ; {Menhinick v. Turner, W. N., 1876, p. 55.) A plea of payment into court, pleaded together with a plea denying the plaintiffs right of action, was struck out : {Spurr V. Sail, L. Rep. 2 Q. B. Div. 615 ; but see svp., 9.) A paragraph not specifically, but generally denying the .allegation of the claim, was struck out. Also one alleging that a "puffier" had been employed : {Jones v. Qidnn, 40 L. T. Rep. N. S. 135.) A defence in an action for money lent, that it was never lent, or that if it was; the defendant repaid it, or has been released, is not embarrassing {Barnicoit v. Bamn, W. N. 1876, p. 24) ; nor is a defence that plaintiEE is suing on his own behalf, having made the contract sued on as agent for a company : {Golding v. The Wharton Salt Works Company, L. Rep. 1 Q. B. Div. 374.) Where to a claim for goods sold and delivered and for work and labour, the defendant pleaded that there was no balance due to the plaintiff, and also the following paragraph : " The defendant wiU further avail himself, if necessary, as an answer to this action, of the provisions of the Statute of Frauds," the paragraph was struck out as embarrassing : {Pullen v. 8nelus, 40 L. T. Rep. N. S. 363.) How AppKcation made [see sup., III., 16]. Costs. 1i a paragraph is struck out as scandalous, the costs of the objectant will be given as between solicitor and client : {Coyle v. Cvming, sup.) 21. Withdrawal. i The court or a judge may .... upon the application of a defendant. 706 ' PleaMng. order the whole or any part of his alleged grounds of defence or coimter- claim to be -withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave : (O. XXIIL, r. 1.) [The order may be made] before, or at, or after the hearing or trial, and upon such terms as to costs, and as to any other action, and otherwise as may seem fit : (Id.) One of two defendants in an action for recovery of land gave np possession after actively defending the action. The hearing of the action was postponed, and, before it came on again, he applied for leave to withdraw his defence. Held, that he should be allowed to do so on paying an occupation rent in respect of the premises, the costs occasioned by his defence, and the costs of the application. Semble, that a summons for such leave should state the terms offered : {Real and Personal Advance .Com/pamy Limited v. McCarthy and Smith, 42 L. T. Rep. N". S. 48 ; L. Rep. 14 Oh. Div. 188 ; 28 W. R. 418.) VI. FURTHER DEFBNOB. Where any ground of defence arises after the defendant has delivered a statement of defence, or after the time limited for his doing so has expired, the defendant may .... within eight da.ys after such ground of defence has arisen, and by leave of the court or a jud^, deliver a further defence .... setting forth the same : (O. XX., r. 2.) This only applies to what is strictly a defence, not to a counter-claim : (Original Hartlepool Collieries Company v. Gibh, L. Rep. 5 Oh. Div. 713; 46 L.J. 311, Oh.) The plaintifE may confess such defence and sign judgment for costs : (O. XX., r. 3 ; seepost, IX.) VII. SET-OFF AlsTD OOUNTER-OLAIM. ,1. PowEE TO Gbant Relief on. The .... courts .... and every judge thereof shall also have power to grant to any defendant in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him, all such relief against any plaintiff or petitioner as such defendant shall have properly claimed by his pleading, and as the said court .... or any judge thereof, might mve granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or cormected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of court or any order of the court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same de- fendant for the like purpose ; and [that] every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim, as if he had been duly sued in the ordinary way by such defendant : (J. A. 1873, s. 24, sub-s. 3.) As to this part of the section, see post, 4, VIII., XVI. 2. Olaims Allowed by. A defendant in an action may set ofE, or set up, by way of counter- claim against the claims of the plaintifE, any right or claim, whether such set-off, or counter-claim sound in damages or not, and snch set-off or Pleading. 707 counter-claim shall have the same effect as a statement of claim in a cross-action, so as to enable the conrt to pronounce a filial judgmentvin the same action, both on the original and on the ci^oss-claim : (O. XIX., r.3.) Generally, the defendant may make any claim against the plaintiff by way of counter-claim; which he might have made by separate action (see J. A. 1873, s. 24, sub-sect. 3) ; as for a penalty : {Diohs v. Brooks, L. Eep. 15 Ch. Div. 22 ; 43 L. T. Rep. N. S. 71 ; 28 W. R. 525.) The right on which the counter-claim is founded must have accrued before the'writ was issued {Original Hartlepool Colliery Company v. Gihbs, L. Bep. 5 Ch. Div. 713; 46 L. J. 311, Oh.), or it will not be allowed, except by way of amendment by leave of the court : {Id. ; miis V. Munson, W. N. 1876, p. 253.) Except as mentioned below, the claim need not relate to the subject- matter of the plaiatifE's claim : {AUwood v. Miller, W. N. 1876, p. 16, where in an action for rent, a counter-claim for the price of butcher's meat, and for specific performance of an agreement to grant a lease, was allowed.) The amount claimed by the counter-claim need not equal that claimed by the plaintiff : {Mosiyn v. West Mostyn Coal and Iron Company Umited, L. Rep. 1 0. P. Div. 145.) In an action by the assignee of a chose in action he cannot counter- ' claim for damages owing in respect thereof by the assignor, but he may set off : {Young v. Kitchen, L. Rep. 3 Ex. Div. 127.) Counter-claims separately may be allowed against any .plaintiffs suing jointly: {Manchester, Sheffield, and Lincolnshire Railway Com- pany and London and North-Western Railway Company v. Broohs, L. Rep. 2 Ex. Div. 243 ; 46 L. J. 244, Ex.) In an action by the assignee of a policy of a marine insurance, the insurers are not entitled to set off a debt incurred with them by the assured for premiums on policies effected with them by the assured after the date of the assignment, nor is the debt inciirred by the assured the subject of " set-off" or " counter-claim" within the meaning of the rule : {Pellas V. Neptune Marine Insurance Company, L. Rep. 5 0. P. Div. 34; 42 L. T. Rep. N. S. 35 ; 49 L. J. 153, 0. P. ; 28 W. R. 405.) Where the defendant counter-claims against the plaintiff jointly with a - third person the relief claimed' must be connected with the original subject of the cause or matter : (J. A. 1873, s. 24, sub-sect. 3 ; Padwiek V. Scott, L. Rep. 2 Ch. Div. 736 ; Karris v. Gamble, L. Rep. 6 Oh. Div. 748 ; 46 L. J. 768, Ch.) A third person made party to a counter-claim containing alternative inconsistent claims for relief in one of which he is not interested may demur : {Evans v. Buck, L. Rep. 4 Ch. Div. 432 ; 46 L. J. 157, Ch.) 3. By whom Made. It may be made by the defendants, or some or one of them : (see sup.) Persons who have been made co-defendants cannot counter-claim against the original defendants : {McLay v. Sharp, W. N. 1877, p. 216.) Where a third person has been made defendant to a counter-claim, he cannot counter-claim against the defendant who has made him such defendant : {Street v. Gover, L. Rep. 2 Q. B. Div. 498.) 4. Against WHOM Made. A defendant may counter-claim against (1.) The plaintiffs or some, or one of them {Sodson v. Mochi, L. Rep. 8 Oh. Div. 569 ; 38 L. T. Rep. N. S. 635 ; 47 L. J. 604, Oh. ; 26 W. R. 590) ; (2.) All, or some, or one of the plaintifEs jointly with some third person or persons : (Dea/r v. Sworder, z z 2 708 -. Pleading. L. Rep. 4 Ch. Div. 473 ; Tv/rner v. Sednesford Gas 'Company, L. Eep. 3 Ex. Div. 145 ; 38 L. T. Rep. N. S. 8 ; 47 L. J. 296, Ex. ; 26 W. R. 308.) A counter-claim cannot' be made against a third party alone, thongh the relief ajsk^d relates to and is connected with the original cause or matter, no mles having been made to give effect to the second part of 36 & 37 Vict. c. 66, s. 24, snb-sect. 3, given sup. : {Trelevan v. Bray, L. Rep. 1 Oh Div. 176; 45 L. J. 113, Oh.; Padmick v. ScoU, Jj. Rep. 2 Oh. Div. 736 Fwrness v. Booth, L. Rep. 4 Oh. Div. 586 ; Bagot v. Baston, 11 Ch. Div. 392 ; Central African Trading Company v. drove, 40 L. T. Rep. N. S. 540 ; 48 L. J. 510, Ex. ; 27 W. R. 933.) A pleading which asks no cross relief against a plaintiff, either alone or with some other person, is not a counter-claim : {Furness v. Booth, sitp.) 5. Title and STame and Addeess op Dependant. (o) Against Plaintiff only [see swp. II., 1]. (6) Against Plaintiff and Another. Where a defendant by his defence sets np any counter-claim which raises questions between himself and the plaintiff along with any other person or persons, he shall add to the title of his defence a further title similar to the title in a statement of complaint, setting forth the names of all the persons who, if such coimter-claim were to be enforced by cross- action, would be defendants to such cross-action : (O. XXII., l: 5.) 6. Allegations. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically tliat he does so by way of set-off or counter-claim : (O. XIX., r. 10.) / A counter-claim is, strictly speaking, part of the statement of defence: (compare O. XIX., r. 8 ; O. XXII., rr. 5, 6, 8, 9.) . And subject to the mles below the genei'al rules of pleading apply (see svbp., II., 2 ; Y., 4.) The counter-claim must be as specific as a statement of a claim in a cross-action {Solloway v. Yorh, W. N., 1877, p. 112 ; 25 W. R. 627), and the facts relied on in support of the counter-claim must be distinguished from those constituting the defence : (per Jessel, M.R., Crowe v. murnicott, L. Rep. 6 Oh. Div. 753; 37 L. T. Rep. N. S. 68; 46 L. J. 855 ; 25 W. R. 790 ; but compare the form App. 0. No. 24.) It is unnecessary to repeat in extenso or minutely facts in support of the counter-claim which have been already alleged in the defence. The practice is to refer to the allegations of the defence which are material to the counter-claim as if they were repeated in the latter portion of the pleading : {Birmingham Estates Company v. Smith, L. Rep. 13 Oh. Div. 506 ; 42 L. T. Rep. N. S. Ill ; 49 L. J. 251, Oh. ; 28 W. R. 666.) Where the defendant relies upon several distinct grounds of defence, set-off, or counter-claim' founded upon separate and distinct, facts [they shall be stated, as far as may be, separately and distinctly] : (O. XIX., r. 9.) 7. Paeagbaphs. ' [See the Greneral Rule, sup., II., 5.] The paragraphs are generally numbered afresh, but it is not absolutely necessary : {Lees v. Patterson, L. Rep. 7 Oh. Div. 866 ; 38 L. T. Rep. N . S. 451 ; 26 W. R. 39 ; 47 L. J. 616, Oh.) 8. Figuees. [See the General Role, sup., II., 6.] Pleading. 709 9. ClAIMS FOE BEIilEP. [Every covmter-claim] shall state specifically the relief clsimed either simply or ia the alternative, and may also ask for general relief : (O. XIX., r. 8.) The claim is good if made in a separate paragraph of the defence numbered consecutively with the others, though not headed separately : {Lees V. Patterson, sup.) Damages claimed must be limited to the time when the writ was issued : [Original Sartlepool Colliery Company v. Gibb, L. Rep. 5 Ch. Div. 713.) 10. Counsel's Signatuee. [See the' General Rule, svp., II., 7.] 11. Feinting. [See sup., II., 8.] 12. Marking Date oe Delivert. [See sup., II., 9.] 13. Deliveet. («) To Plaintiff Alone [see sup., 11., 10 ; Y., 16.) (6) To Plaintiff and other Person, Party. Where a defendant by his defence sets up any counter-claim which raises questions between himself and the pladntifl: along with any other person or persons, he ... . shall deliver his defence to such of them as are parties to the action within the period within which he is reqtiired to deliver it to the plaintiff : (O. XXII., r. 5 ; and see sup., V., 17.) 14. Service on Person not Party. Where any such person as in the last preceding rule mentioned is not a pai-ty to the action, he shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the .... rules .... with respect to the service of a writ of summons, and every defence so served shall be indorsed in the form [foUowiiig] or to the like effect: (O. XXTI., r. 6.) To the within-named X.T. Take notice that, if you do not appear to the within counter-claim of the within-named CD. within eight days from the service of this defence and counter-claim upon you, you wiU be liable to have judgment given against you in your absence. Appearances are to be entered at (App. B. No. 4.) Service out "of the jurisdiction has been ordered : (Be Luchie, W. N. 1880, p. ll.j 15. Appeaeanoe to [See Appeaeanoe.] 16. Amendment. (a) Without L^ave. A defendant who has set up in his defence any set-ofE or counter-claim may without any leave, amend such set-ofE 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-eight days from the filing of his defence : (0. XXVII., r. 3.) r . 1 • -11. i 1 n ^i.K Where any party has amended his [counter-claim without leavej thb opposite party may, within eight days after the delivery to him of the amended pleading, apply to the court, or a judge, to disallow the amend- ment or any part thereof, and the court or judge may, if satisfied that 710 Pleaddng. 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 : (O. XXVI., r. 4.) (6) With Leave [see sup., II., 12]. _ 17. Application to Exclude. The court or a judge may, on the application of the plaintiff before trial, if in the opinion of the court or judge such set-off or counter- claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof : (O. XIX., r. 3.) Where a defendant by his statement of defence sets up a counter-claim, if the plaintiff or any other person named in manner aforesaid as party to such counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent action, he jnay at any time before reply, apply to the court or a judge for an order that such counter-claim may be excluded, and the court or a judge may, on the hearing of such application, make such order as shall be just : (O. XXII., r. 9.) The court has a discretioij which will not generally be interfered with on appeal : {Suggons v. Tweed, L. Rep. 10 Oh. Div. 359 ; 40 L. T. Rep. N. S. 284 ; 27 W. B. 495.) Counter-claims have been excluded in the following cases : For breach of an agreement to repair in an action for assault {Lea v. Golyer, W. N. 1876, p. 8) ; for damages for loss sustained in respect of shares bought on false representations, in an action for libel charging conspiracy and fraud against directors of a company {Nicholson v. Jackson, W. N. 1876, p. 38) ; against a plaintiff both as an executor and in his own right {Macdonald v. Carington, L. Rep. 4 0. P. Div, 28; 39 L. T. Rep. N. S. 426 ; 48 L. J. 179, C. P. ; 27 W. R, 153) ; in an action for dissolution of a partnership, for work done by defendant as a traveUer {Naylor v. Farrer, 26 W. R. 809 ; "W. N. 1878, p. 187) ; by a local board in respect of breaches of their bye-laws and the PubUc Health Act : {Masters v. Pontypool Local Board, 47 L. J. 797, Oh.) 18. Striking Out. [See II., 12, (a); Y., 20.] As it is part of the statement of defence, the same rule as to striking out for embarrassment applies as applies to such part of the pleading. A counter-claim may also be ordered to be struck out on the ground that the defendant has not complied with an order to give security for costs : {The Julia Fisher, L. Rep. 2 P. Div. 115.) See also Ma/;donald v. Carington, sup. 19. Effect of Discontinuance. Where an action is discontinued the counter-claim is not a fresh action, but falls with the original action : {Vavasseur v. Krupp, L. Rep. 15 Ch. Div. 474; 28W. B. 366.) 20. Judgment on Countee-claim. [See Judgment.] VIII. NOTICE CLAIMING RELIEF AGAINST CO-DEFENDANT. The .... court .... and every judge thereof, shall also have power to grant to anv defendant in respect of any eqnitaUe estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him, all such relief rekting to or connected with the original subject of the cause or matter, and [properly claimed by his pleading] against any other person [than the plaintiff or Pleading. 711 petitioner] who shall have been duly served with notice in writing of such claim pursuant to any rule of court or any order of the court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose ; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim as if he had been duly sued in the ordinary way by such defendant : (J. A. 1873, s. 24, sub-s. 3.) No rule of court has been made to give efEect to this section, so far as concerns relief by a defendant against his co-defendant without an independent action (per Mellish, L. J., Treleven v. Bray, 45 L. J. 113, Oh. ; Padwick v. Scott, L. Rep. 2 Oh. Div. 736). It is the practice, however, to utilise the following rule, in the manner indicated by the cases cited infra. Where a defendant claims to be entitled to contribution or indemnity, or any other remedy or relief over against any other person . . , . the court or a judge may .... make such order as may be proper for having the question so determined : (O. XVI., r. 17.) A pleading which asks no cross-relief against a plaintiff either alone o;: with some other person is not a counter-claim: {Warner v. Twining, 24 "W. R. 536 ; Furness v. Booth, L. Rep. 4 Oh. Div. 586.) But, by consent of the plaintiff, issues between co-defendants may be ordered to be tried : {Id. ; Bright v. Mai-ner, L. Rep. 11 Oh. Div. 394 n. ; Bagot V. Boston, L. Rep. 11 Oh. Div. 392 ; 27 W. R. 404.) The pleading, whether it contains a defence to the plaintiff's claim, or a counter-claim against liim, or both or neither, will be ordered to be delivered to the co-defendant, and to be treated as notice under sect. 24, sub-sect. 3 of the Act, and O. XYL, r. 17. ' , The delivery to the co-defendant may be without order : {Furness v. Booth, suf. ; Butler v. Butler, L. Rep. 14 Oh. Div. 329 ; 42 L. T. Rep. N. S. 728; 28W.R. 825.) In the latter case there was a counter-claim. Where one defendant by his statement of defence tnade certain alle- gations affecting the rights of his co-defendants, and the latter purchased a copy of the defence, which was not delivered to them in any other way ; it was held that the purchase did not affect the co-defendants with notice under the rule : {8teel v. Dixon, 42 L. T. Rep. N. S. 765 ; 28 W. R. 822.) [And see post, XVI.] IX. GOlSrPESSIGN or DEFBNOE. Whenever any defendant, in his statement of defence, or in any- further statement of defence .... alleges any ground of defence which has arisen a^er the commencement of the action, the plaintiff may deliver a confession of such defence .... and he may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the court or a judge shall, either before or after the delivery of such confession, otherwise order : (0. XX., r. 3.) [Such confession may be in the following form] with such variations as circumstances may require : (O. XX., r. 3.) 18 . [Here •pvi the letter wnd muniber,'] In the High Court, Qneen'a Bench Divisioii. Between A. B. Haintiff. and (j_ p_ Defendant. 712 ^ -, Pleadmg. The plaintiff confesses the defence stated in the paragraph of the defendant's statement of defence [or, of th« defendant's further statement of defence]. (App. B. No. 2.) As to costs where the defendant only set up perf OTmance after action, see Callmder v. Hawkins, L. Eep. 2 C. P. Div. 592 ; 26 W. R. 212. I X. REPLY OP THE PLAINTIPP. 1. Title and Name and Addeess of Plaintiff. [See sv^., II., 1.] Where a counter-claim has been delivered against the plaiatifE and the other person or persons, the additional title should be continued in the reply : (see sup., VII., 6 (6).) 2. AlLBGATIONS. (a) Conciseness [see the General Rule, sitp., II., 2, (a)]. (6) Material Facts amd Grounds of Seply [see sup., II., 2 (a)]. If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title,, or claim whatsoever asserted by any defendant or respondent m such cause or matter, or to any relief founded upon a legal right, which heretofore could only have bMn given by a court of equity, the said courts respectively, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose properly instituted before the passing of this Act : (J. A., 1873, s. 24, sub-s. 1.) The plaintiff may introduce new matter by way of set-off or to contro- vert the defence : (Id.) A reply must not refer to an independent document, such as plaintiff's answer to interrogatories, as containing the facts relied on, without setting out the document: [Williamson y. London and North-Western Railway Company, L. Rep. 12 Ch. Div. 787 ; 48 L. J. 559, Ch. ; 27 W. R. 724.) And new claims must not be raised : {Id!) Evidence, argument, and conclusions of law must not be pleaded: {Id.) • ' (c) Consistency with Statement of Claim. No [reply] shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous • pleadings of the party pleading the same : (O. XIX., r. 19 ; Collett v. Dickinson, 26 W. R. 403 ; Harp v. Henderson, L. Rep. 3 Ch. Div. 254; London Docks Gompamy v. Metropolitan Railway Gompamm, W. N. 1876, p. 272 ; Hall v. Sve, inf.) (d) FoAits Presumed. (e) Effect of Documents. (/) Implied Contracts or Relations, (g) Malice and other Conditions of Mind, (h) Notice. 3. Denials. The denials to the counter-claim (if any) must b? contained in the reply to the defence. It" shall not be sufficient .... 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 specifical^ with each allegation of fact of which he does not admit the truth : (O. XIX., r. 20.) So far as regards a reply by a plaintiff to a counter-claim, the general [See the General Rules, sup., II., 2] ' Pleading. -, 713 rules as to denials [sup., II., 3] apply : (see Benbow v. Low ; Green v. Sevin, inf.) And the same rules apply to denials in a reply to a defence containing no counter-claim, subject to the following rule as to joining issue. Subject to the last preceding rule, the plaintiff by his reply may join issue upon 'the defence .... 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 : (O. XIX., r. 21.) Where a defence and a counter-claim have been delivered, the plaintifE by merely joining issue on the defendant's pleading, admits the allegations in the counter-claim : {Bolfe v. M Where the property has increased in value since the appointment, , additional security may be reqiiired : (Dan. 1585.) Upon any event, such as death or bankruptcy, happening which prevents the recognisances being efEectuaUy put in force against the parties, an order may be made on summons for the receiver to give new security : (Seton, 427.) IX. ORDER OF APPOINTMENT. The judge shall fix the days upon which receivers shall (annually, or at longer or shorter periods, at his discretion) leave and pass their accounts, and also the days upon which such, receivers shall pay the balances appearing due on the accounts so left, or such part thereof as the chief clerk shall certify as proper to be paid by them : (C. O. 24, i. 2.) Upon the adjourned summons, the order approving the appointment is left with the registrar, who draws the order" appointing the receiver, and naming the time within which accounts are to be passed and balances paid : (Ayck. 646.) If the receiver is named in the order of the court, leaving him to give the necessary security, when such security is completed the chief clerk certifies that the security has been given, and when the passing of accounts and bringiug in of balances is to take place : (Jarm. 382.) On an application at chambers to appoint a receiver, the expense of a eertificate, in addition to an order, may be saved by the recognisance being completed and enrolled before an order is drawn up. The recogni- sance must recite that the judge has approved the proposed receiver subject to his giving security, instead of reciting the order directing a receiver to be appointed ; and the order should, after reciting that the recognisance has been enrolled, appoint the receiver, and fix the days for him to bring in his accounts and pay balances : (Dan. 1589.) X. SALARY. The person .... appointed should be allowed a proper salary for his •care and pains in receiving [the] rents and profits, or, as the case may be, shall have an allowance made to him in respect of his collecting such personal estate : (G. O. 24, r. 1.) , The allowance depends on the degree of difficulty or facility with which the rents are collected, the maximum being usually 51. per cent. : (Morg. & Chnte. 169.) For extraordinary trouble and expenses an additional allowance may be made by isxpress order : {Id.) 762 Receiver. A party proposing himself is generally required to act without salary, unlfess by consent : (Seton, 426.) As to payment of a commission for collecting rents, see Union Bank of London v. Ingram, W. N. 1880, p. 163. XI. WHEN APPOINTMENT COMPLETE. The receiver is not in possession until his recognisance (if any) is completed (Morg. & Ch. 596), whether the appointment is by the court of a named person " upon his giving security " or generally of a receiver : {Edwwrds V. Edwards, L. Rep. 2 Ch. Div. 291.) But the last case only related to chattels. If a receiver is appointed of the rents of lands at -the instance of a judgment creditor, though the appointment is conditional upon the receiver's giving security, it operates as an immediate delivery of the land in execution : {Ex parte Evans, Be WatUns, L. Rep. 13 Oh. Div. 262 ; 41 L. T. Rep. N. S. 565 ; 48 L. J. 97, Bank.) XII. EFFECT OF APPOINTMENT. A receiver is appointed for the benefit of all parties, and all parties are bound by his possession. His possession cannot be disturbed without leave of the court : (Morg. & Ch. 596.) If, when a receiver is appointed a person is in possession of or exercising rights over the subject matter, the appointment leaves him in possession, and does not interfere with the exercise of his rights : [Johnes v. Claiighton, Jac. 573 ; Evelyn v. Lewis, 3 Ha. 475.) Upon application, the court will always take care to give to any party, ■who has a right paramount to that of the receiver or the party obtaining the receiver, the means of obtaining justice, and will assist him in asserting and having the benefit of his right : (Per Kindersley, Y.C., Hawkins V. Oathercole, 1 Drew. 18.) A landlord should obtain the authority of the court before distraining : (Seton, 428.) A mortgagee whose rights are interfered with may apply by summons or motion for leave to bring an action for recovery of the land, or to be examined pro interesse sua ; but, to obtain the latter order, he must not have been guilty of delay : (Fisher, 418-9.) When a receiver is appointed of real or leasehold property, the order generally directs the parties to deliver possession, and directs the tenants to attorn and pay rents : (Dan. 1590.) The receiver should report a refusal to deliver possession or attorn after application, to the solicitor of the party who applied for the receiver that he may get enforced the order of the court : {Id.) Giving up possession by parties may be enforced by writ of assistance or writ of .delivery : (see Execution.) Payment of rent may be ordered, though there has been no attornment, on motion with notice, or summons : (Dan. 1596.) After attornment the receiver may distrain, without order, for rent accrued during the tenancy within the year, but if the rent is in arrear more than a year, an order must be obtained on summons, the chief clerk's minute being sufficient: (Dan. 1596-7.) A receiver may, without order, let for a year certain or less or any term not exceeding three years ; may determine such tenancies by notice : (Dan. 1597.) A receiver ought not without leave To raise rents on slight grounds ; To evict a tenant ; Receiver. 753 To lay out more than a small sum : (Dan. 1597.) If any loss arises from the receiver's default, he must bear it : [Hutchin- son v. Massarene, 2 Ball & B. 55, cited Morg. & Oh. 596.) As to when he is liable for a banker's default, see cases cited Morg. & Ch. 170. Applications for the direction of the court should be by summons, by the party conducting the proceedings, or, in case of his refusal, by the receiver : (Dan. 1600.) Xni. ACCOUNTS AND BALANCES. 1. Leaving Account at Ohambbbs. Receivers' accounts are to be delivered at chambers on or before the day appointed for that purpose, and, in default, the receiver will be liable to the consequences imposed by G. C. O. 24, r. 2 : (Ch. Reg. Aug. 1857, r. 16 ; see post, 4.) The form of account to be used is that in No. 14 in the schedule to the Chancery Regula,tions of August, 1857. In the first account passed, the receiver should state, in the columns for observation, how each tenant holds; and every alteration should be noticed in the subsequent accounts. In this column should also be entered remarks as to arrears of rent, repairs, &c. ; (Dan. 1600.) K the account is drawn up irregularly, the receiver may be ordered to draw it up in proper form, and to pay the costs of irregularity : {Id.) 2. Peoceeding on and Passing Account. Upon a receiver's account being left in the judge's chambers to be passed, a summons to proceed thereon shall be taken out : (C. O. 24, r.3.) If the receiver neglects to take out the summons, any party may do so : (Dan. 1600.) The receiver is usually directed to hand copies of the account to parties entitled to attend the passing, and to charge for the same in his costs : (Dan. 1601.) Upon the return of the summons the account is substantiated : (Dan. 1601.) The costs of the receiver's appointment, if it be his first account, and of passing the account, and the costs of all parties entitled to attend upon it, are to be produced and taxed at the time of passing the account, and are included therein : (Jarm. 385.) The account, when passed, shall be entered by the receiver in books : (C. O. 24, r. 3.) The books are in duplicate : (Dan. 1601.) The affidavit verifying the account so passed shall refer to it as an exhibit, and not be annexed to it : (C. O. 24, r. 3.) A form of affidavit is given in the schedule to the Chancery Regula- tions of August, 1857. The books and office copy affidavit are left at chambers, and a memo- randum of allowance of the account is signed at the foot by the chief clerk : (Dan. 1601.) One book is retained at chambers ; the other is delivered to the receiver from time to time : (Id.) A certificate of the allowance of the account is afterwards made and filed: (Id.) 3. Payment of Balances. A receiver may at any time apply by summons for an order to pay iu money : (Dan. 1602.) c c c 754 Receiver. Where, in an action brought against the E. Railway Company, by debenture holders of the company, an order was made appointing a receiver of the tolls, &c., who was to pay all the expenses proper and necessary for maintenance, management, and worHng of the company, and reserving liberty to " any party to apply as to any •payments to be made by the receiver, and generally as he might be advised ; " and the G. railway company having recovered judgment in an action against the E. company for certain sums (alleged to be due as for expenses proper and necessary for maintenance, management, and working of the E. company), took out a summons in the debenture holder's action, asking that the receiver might be directed, out of the money in his hands, to pay the smns for which judgment had been recovered, it was held that, assuming the sums were proper and necessary, as aforesaid, the G-. company, not being parties to the action, had no locus standi to make the application: [Brocklebanh v. The Ilast London Bailway Convpcmy, L. Rep. 12 Ch. Div. 839 ; 41 L. T. Rep. F. S. 205 ; 48 L. J. 729, Ch.) 4. Default. If the receiver does not leave his account, or pay balances into court, or to parties entitled, any party interested may obtain an order on sum- mons against him, with costs : (Dan. 1602-3.) And, with respect to such receivers as shall neglect to le^ve and pass their accounts and pay the balances thereof at the times so to be fixed for that purpose as aforesaid, the judge before whom such receivers are to account shall from time to time, when their subsequent accounts are produced to be examined and passed, not only disallow the .salaries therein claimed by such receivers, but also charge them with interest after the rate of 61. 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 receiver : (C. O. 24, r. 2.) The receiver is charged with interest by making yearly, or half-yearly rests in the account, whether he has been discharged or is stiU in office : (Dan. 1603-4.) The receiver may be charged with interest on money improperly kept in his hands, although he has passed his account, and all parties have expressed themselves satisfied : and for this purpose an inquiry what money he has received from time to time, and how long he has kept it, may be directed : (Dan. 1604.) In case of default by any receiver appointed by the court in leaving or passing any account, or in making any payment, the parties, or any of them may be required to attend at chambers at a time to be appointed for that purpose, to show cause why such account has not been left or • passed, [or] payment made : (C. 0. 35, r. 23.) Thereupon such directions may be given at chambers, or by adjourn- ment in open court as shall be proper .... for the discharge of any receiver, and appointment of another, and for payment of the costs incurred by any neglect or default ; or a certificate by the chief clerk of such neglect or default as aforesaid, according to the facts, may be made and filed, without any fee being payable thereon : {Id.) After such certificate shall have been so made, unless the same shall be discharged, none of the parties shall be at liberty to further prosecute the proceeding at chambers, unless and until the court or judge shall upon appfieation make an order directing the same to be prosecuted : (Id.) Upon such certificate becoming binding, any party may apply to the court, and the court may make such order relative to costs, and to relieve any party from the effect of any decree or order before made or proceed- Receiver. 755 ing taken wMch shall not have been duly prosecuted, or otherwise, as may- be thought proper : (Id.) For the XJurposes aforesaid, any party, or the solicitor [to the Chancery Division] may be directed to summon the persons whose attendance is required, and to conduct any proceedings, and carry out any directions wMch may be given : (Id.) The costs of [such] solieitor shall be paid by such parties, or out of such funds as the court or judge may direct ; and if any costs of [such] solicitor .... be not otherwise paid, the same shall be paid out of the suitors' fund : (Id.) XIV. DISCHARGE AND COMPLETION OF RECEIVERSHIP. After giving security, a receiver cannot be discharged on his own appli- cation without showing reasonable cause : (Dan. 1613.) A receiver appointed for the benefit of all parties will not be discharged on the ex parte application of the party at whose instance he was appointed: (Td.) A receiver will be discharged — Where he becomes unnecessary ; To make room for another at a low salary ; In case of bankruptcy : (Dan. 1613-4.) The application is by petition, motion, or summons : (Dan. 1614.) Upon a petition for this purpose, the receiver should not appear, nor will he be allowed his costs of appearance, although served with the peti- tion : (Jarm. 389.) If the receiver has not passed his final account, the order directs him so to do: (Dan. 1614.) The order also directs his discharge, and his recognisances to be vacated subject to the payment of any balance remaining in his hands : (Jarm. 389.) To vacate the recognisance, the order, with an office copy of the chief clerk's certificate, and the Paymaster-General's certificate of payment in, or an affidavit of payment to a person entitled, must be taten to the Secretary of the Rolls, who initials the order. The order is then taken to the clerk of enrolments, who strikes out the enrolment, and obtains the signature of the Master of the RoUs to the roll, after which the clerk of enrolments signs a memorandum on the order that the recognisance- is vacated : (Dan. 1614.) When a receivership has been completed, the book containing the accounts shall be deposited in the [Central Office] : (C. O. 24, r. 4.) RECOVERY OF LAND, I. WHAT IS AN ACTION FOE. n. LEAVE TO JOIN CLAIM WITH OTHER CLAIMS. ni. WRIT OF SUMMONS. IV. APPEARANCE AND LIMITING DEFENCE. [See APPEABANCE, IX.] V. PLEADINGS. VI. DISCOVERT. Vn. WITHDRAWING DEFENCE. VIIL JUDGMENT. 1. Bt DurAiTLT OF Appearance oe PLEADiNa. c c c 2 756 Recovery of Land. 2. On Withdeawai. of Defence [see sv^. VII.] 3. In other Cases [see Judoment]. IX. EXECUTION. X. COSTS. I. WHAT IS AN ACTION FOR. An action for the recovery of land is an action claiming possession of the land itseM : {Gledhill v. Hunter, L. Rep. 14 Ch. Div. 492 ; 42 L. T. Rep. N. S. 392 ; 49 L. J. 333, Ch. ; 28 W. R. 530.) Hall, V.C., held that an action to establish title to certain land was an action for recovery of land : {Whetstone v. Dewis, L. Rep. 1 Ch. Div. 99 ; 33 L. T. Rep. N, S. 501 ; 45 L. J. 504, Ch. ; 24 W. R. 93.) But the matter only came before him on an application for leave to join another claim, and three weeks only after the rules came into operation ; and Jessel, M.R., has since held that such an action is not an action for recovery of land : {Gledhill v. Sunter, sup.) An action to recover rents is not for the recovery of land : {Id.) A foreclosure action is not an action for the recovery of land : {Tawell v. Slate Company, L. Rep. 3 Ch. Div. 629.) II. LEAVE TO JOIN CLAIM WITH OTHER CLAIMS. No cause of action shall, unless by leave of the court or a judge,' be joined with an action for the recovery of land, except claims in respect of mesne profits or arrears of rent in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held : (O. XVII., r. 2.) The necessary leave to join a cause of action with an action for the recovery of land must be obtained before the writ is served : {Be Pileher ; Pilcher V. Mnds, L. Rep. 11 Ch. Div. 905 ; 40 L. T. Rep. N. S. 422, 832 ; 48 L. J. 612, 587, Ch.) The practice is to obtain leave before the writ is issued : {Id.) If the vrrit has been served, the court cannot order the action to be continued : {Id.) Leave will be given to join with the claim for land, clainis for Recovery of a deed relating to the land {Cook v. Enchmareh, L. Rep. 2 Ch. Div. Ill) ; Execution of a conveyance of the land to new trustees {Manisty v. Kenecdey, 24 W. R. 918) ; Recovery of personal property comprised in the same instrument {Cooh V. Enchmarch, sup.) ; Administration of personal estate of the person from whose adminis- trator the land is claimed {Kitching v. Kitching, W. N. 1876, p. 255 : and see Whetstone v. Dewis. sup.) ; A receiver : {Allen^ v. Kennet, 24 W. R. 845.) ill. WRIT OF SUMMONS. As to joining claims with other .claims, see svp., II. The following forms of indorsement are given : The plaintiff's claim is to recover possession of a honse, No. in street, or of a, farm called Blackacre, situate in the parish of in the county of The plaintiff's claim is to establish his title to [here descrihe property'], and to recover the rents thereof. [The two previous Forms ma/y be combined.'] (App. A. p. 2, s. 4, Rules of 1875.) Where mesne profits are claimed, add " And for mesne profits : " {Id.) Recovery of Land. 757 Service of a writ of summons in an action to recover land may, in case of vacant possession, when it cannot otherwise be efEected, be made by posting a copy of the writ upon the door of the dwelling-house or other «onspicuous part of the property : (O. IX., r. 8.) IV. APPBARASrCE AJSTD LIMITING- DEFENCE. [See Appeabance, IX.] V. PLEADINGS. [Where a landlord, not originally a party, has appeared, he] shall in aU subsequent proceedings be named as a party defendant to the action : (0. XII., r. 20.) In an action by an heir-at-law, it is not sufficient to say that the plaintiff is heir-at-law ; his pedigree should be shown : {Phillips v. Phillips, L. Eep. 4 Q. B. Div. 27 ; 39 L. T. Hep. N. S. 556 ; 48 L. J. 125, Q. B. ; 27 W. R. 436.) Where the statement of claim, after alleging facts which would show a title in Prances Evelyn, contained a statement that " the said Prances Evelyn died intestate as to real estate and leaving Sir Hugh Evelyn heir- at-law," and then stated facts which showed a title in the plaintiff to Sir Hugh Evelyn's estate, it was held, on a summons to strike out the paragraph above stated, that it was not embarrassing, and was a sufficient statement of the facts on which the plaintiff relied : [Evelyn v. Bvelyn, L. Rep. 13 Oh. Div. 138; 42 L. T. Rep. N. S. 248; 49 L. J. 18, Ok; 28 W. R. 531.) There shall be no local venue for the trial of any action, but when the plaintiff proposes to have the action tried elsewhere than in Middlesex, he shall in his statement of claiin name the county or place in which he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so liamed. Where no place of trial is named in the statement of claim, the place of trial shall, unless a judge otherwise orders, be the county of Middlesex : (O. XXXVI., r.l.) This applies to the Chancery Division : {Bedmayne v. Vaughan, 24 W. R. 983.) No defendant in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless his defence depends,on an equitable estate or right or he claims relief upon any equitable ground .against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession. And he may nevertheless, rely upon any ground of defence which he can prove, except as hereinbefore men- tioned: (O. XIX., r. 15.) The defendant, if he relies upon an equitable title, must in his statement of defence allege the nature of the deeds and documents upon which he relies, and it is not sufficient to allege that " by virtue of divers mesne acts and mesne assurances in the law all the estate and interest of the plaintiff's predecessor in title is now vested in the defendant" : (Sutcliffe v. Jajmes, 40 L. T. Rep. N. S. 875 ; 27 W. R. 750.) Forms of pleadings are given in Appendix C., numbers 24, 25, to the rules of 1875. [And see Pleading,] VI. DISCOVERT. Where the plaintiff sued for recovery of land on breach of a lessee's covenant in a lease, and the defendant alleged verbal consent to the breach, the plaintiff was allowed to interrogate the defendant as to when the 758 Recovery of Land. consent was given, and the conrersation which took place, but not as to the persons in whose presence the consent was given : (Eade v. Jacohs, Jj. Rep. 3 Ex. Div. 335 ; 37 L. T. Rep. N. S. 621; 47 L. J. 74, Ex. ; 26 W. E. 159.) A defendant in a land action, although denying the plaintiff's title, must make an affidavit of documents and specify in detail all the documents in uhis possession relating to the subject-matter, although he states that they relate exclusively to his own title, and do not aid the plaintiff's case, and althotigh the defendant may not be compellable to prodtice them at the hearimg : {Fortescue v. Fortescue, 34 L. T. Rep. N. S. 847 ; 24 W. R. 945 ; Magdalen Bospital v. Knotts, 21 S. J. 610 ; New British Mutual Invest- ment Company v. Peed, L. Rep. 3 C. P. Div. 196 ; 26 W. R. 354) : but the court must be satisfied, upon the pleadings or upon affidavit, that the plaintiff has some tangible -ground of action : (Phillips v. Phillips, L. Rep. 4 Q. B. Div. 127 ; 40 L. T. Rep. N. S. 816 ; 48 L. J. 135, Q. B.) A defendant in an action for recovery of land may object to allow his title deeds or court rolls to be inspected : [New British Mutual Insurance Company v. Peed, sup. ; Owen v. Wynn, L. Rep. 9 Oh. Div. 29 ; 38 L. T. Rep. K. S. 623 ; 26 W . R. 644.) A party who is covenantee to a covenant for production of deeds cannot be ordered to obtain production if the covenantor is not a party : {Bethell V. Casson, 1 H. & M. 806.) When an ejectment action has been transferred from a County Court into the High Court, the proceedings must thenceforth be regulated by the practice of the High Court, and discovery cannot be obtained before the delivery of a statement of claim : [Davies v. William,s, L. Rep. 13 Ch. Div. 550; 42 L. T. Rep. N. S. 469.) Vn. WITHDRAWING DEFENCE. The court or » judge may, before, or at, or after the hearing or trial upon such terms as to costs, and as to any other action, and otherwise, as may seem fit, order the action to be discontinued The court or a judge may in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged ground of defence .... to be withdrawn or struck out, but it shall not' be competent to a defendant to withdraw his defence, or any part thereof, without such leave : (O. XXIII.) [At common law, where a sole defendant in ejectment confessed the action, the claimant was] entitled to and [might] forthwith sign judgment and issue execution for the recovery of possession and costs : (C. L. P. A. 1852, s. 203.) In case one of several defendants in ejectment, who [defended] separately for a portion of the property for which the other defendant or defendants [did] not defend [was] desirous of confessing the claimant's title to such portion, he [might] give a like notice to the claimant ; and thereupon the claimant was entitled to and [might] forthwith sign judg- ment and issue execution for the recovery of possession of such portion of the property, and for the costs occasioned by the defence relating to the, same, and the action [might] proceed as to the residue : {Id., s. 204.) In case one of several defendants in ejectment, who [defended] sepa- rately in respect of property for which other defendants also [defend!ed, was] desirous of confessing the claimant's title, he [might] give a like notice thereof ; and thereupon the claimant [was] entitled to and [might] sign judgment against such defendant for the costs occasioned by his de- fence, and .... proceed in the action against the other defendants to judgment and execution : {Id, s. 205.) Recovery of Land. 759 It has been argued that ;wheii one of several dfefendauts has actively defended, and before the action is heard, serves a summons for leave to withdraw, the terms ought to be that he should pay all the costs of the action, as each defendant in ejectment was liable to all the plaintiff's costs (see post), but where the plaintiff company were mortgagees of the premises, the subject of the action, in the possession of M'Oarthy and his tenant Smith, the latter holding only part of the premises, and Smith, on being joined as a defendant in the action, took an active part in the defence, but before the hearing, gave up possession of the portion of the premises occupied by him, served on the plaintiff company a summons for leave to withdraw his defence on such terms as to the court should seem fit, on the ground that he had so given up possession, and the terms offered as terms before the chief clerk were, that the defendant Smith should pay the amount owing by him in respect of an occupation rent which had been fixed in chambers pursuant to a previous order of the court, the costs occasioned by Smith's defence, and the costs of the application, Pry, J., acceded to the application,«and ordered the plaintiff to pay the costs of adjourning the summons into court : {Real and Personal Advance Cpm-. pany Limited v. M'Carthy and Smith, 42, L. T. Rep. N. S. 48; L. Rep 14 Oh. Div. 188 ; 47 L. J. 615, Ch. ; 28 W. R. 418.) VIII. JUDGMENT. 1. By Defaxtlt of Appeakance ob Pleading. [See Judgment, 1. 1 (e) and 2 (6) (4).] Where a defendant has failed on account of his pleading being defec- tive, and leave to defend has been refused, judgment may be given " without prejudice to the rights, if any, of the defendant " • {Sutcliffe v. James, 40 L. T. Rep. N. S. 875.) 2. On Withdeawal of Defence. [See sup., VII.] 3. In Othbk Cases. [See Judgment.] IX. EXECUTION. A judgment for the recovery or for the delivery of the possession land may be enforced by writ of possession : (O. XLII., r. 3.) A judgment that a party do recover possession of any land may be en- forced by writ of possession in manner heretofore used in actions of eject- ment in the Superior Courts of Common Law : (O. XL VIII., r. 1.) Where by any judgment any person therein named is directed to deliver up possession of any lands to some other person, the person prosecuting such judgment shall, without any order for that pui-pose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such . judgment and that the same has not been obeyed : (O. XL VIII., r. 3.) The sheriff under this writ, must put the person, in whose behalf the writ is issued, into possession, and in order to do so he may, if necessary, break open doors, and, if he fears violence, take the posse comitat'tis with him : (See Chitty's Archb. Pract. p. 1034, 11th edit.) X. COSTS. At common law each defendant in an action of ejectment when there were several defendants, although defending only for part of the premises, was liable for the whole of the' plaintiff's costs : {Johnson v. Mills, 17 L. T. Rep. N. S. 215 ; L. Rep. 3 C. P. 22.) 760 Bectijication of Instruments — Redemption. RECTIFICATION OF INSTRUMENTS. [See Cancet.TiAtion, &c., of Insteitments.J REDEMPTION. I. JUEISDICTION. II. PAETIES. 1. Geneeal Eitles. 2. Persons interested in Equity of Kedemption. (a) Mortgagor. (b) Assignees. (c) Bwnhmptcy Trustees. (d) Devisees. ' (e) Executors and Administrators. (/) Seir. (g) Legatees. (A) Jncmnbrcmcers, Execution GrecUtors, Sfc. (i) Trustees. 3. Mobtoaqees and those CiAiMiNa under them. (a) Mortgagees. (i>) Assignees. (c) Cestms que trustent. (^.) Prom an order of a judge sitting in the Chancery Division or sitting at Nisi Prius, an appeal lies to the Court of Appeal : (Hoch v. JSoor, svp.) IV. DISTRIBUTION OF BUSINESS AMONG OFFICIAL REFEREES* 1. Genbbal Repbbence. The business to be referred to the official referees appointed under the D D D 770 Referees. Supreme Court of Judicature Act, 1873, shall be distributed among such official referees in rotation by the clerks to the registrars of the Supreme Court, Chancery Division, in like manner in all respects as the business referred to conveyancing counsel appointed under the Act of the 15 & 16 Vict. c. 80, s. 41, is directed to be distributed by the 2nd of the Consoli- dated General Orders of the Court of Chancery : (O. XXXVI., r. 29a, June 1876.) When an order shall have been made referring any business to the official referee in rotation, such order, or a duplicate of it, shall be produced to the registrar's clerk, whose duty it is to make such distribution as afore- said ; and such clerk shall (except in the case provided for by rule 29c of this order) indorse thereon a note specifying the name of the official referee in rotation to whom such business is to be referred ; and the order so indorsed shall be a sufficient authority for the official referee to proceed with the business so referred : (O. XXXVI., r. 29b, June, 1876.) The clerk making such distribution shall be responsible for the business being distributed according to regular and just rotation, and*in such manner as to keep secret from all persons the rota or succession of [referees] to whom such business maybe referred; and it shall be his duty to keep a record of such references, with proper indexes, and to enter therein all such references, with the dates when the same are made : (C. O. 2, r. 2.) In case, the [i^eferee] shall from iUness or from any other cause be imable or decline to accept any such reference the same shall be offered to the other [referees] successively, until some one of them shall accept the same : (0. O. 2, r. 4.) 2. Pakticttlak Befbbence. The preceding rules of this order are not to interfere with the power of the court, or of the judge at chambers, to direct or transfer a reference to any one in particular of the said official referees, where it appears to the court or the judge to be expedient ; but every such reference or transfer shall be recorded in the manner mentioned in rule 2 of the 2nd of the said Consolidated General Orders, and a note to that effect be indorsed on the order of reference or transfer ; and in case any such reference or transfer shall have been or shall be made to any one in particular of the said referees, then the clerk in making the distribution of the business according to such rotation as aforesaid shall have regard to any such reference or transfer: (O. XXXVI., r. 29c, June, 1876.) V. HEARING AND TRIAL. [Questions in] actions shall be tried and heard either .... before an official or special referee, with or without assessors : (O. XXXVI., r. 2 ; Longman v. East, &c., swp.) As to the notice specifying the mode of trial, see Tbial. All .... trials [of matters referred for trial under sest. 57 (see swp. II., 2) ] shall be conducted in such manner as may be prescribed by rules of court, and subject thereto in such manner as the court or judge ordering the same shall direct : (J. A. 1873, s. 57.) Such official referees shall perform the duties entrusted to them in such places, whether in London or in the country, as may from time to time be directed or authorised by any order of the .... High Court, or of the Court of Appeal : (J. A. 1873, s. 83.) Where the sittings under a reference are to be held elsewhere than in London, a convenient place in which the sittings may be held shall be provided to the satisfaction of the official referee, by and at the expense of the party proceeding with the reference : (O., 2ith April, 1877 ; W. N. 1877, p. 228.) Befereea. Ill Any such special referee so agreed on shall .... proceed in the same manner as an official referee : (J. A. 1873, s. 57.) Subject to any order to be made by the court or judge ordering the same, evidence shall be taken at any trial before a referee, and the attendance of witnesses may be enforced by subpoena, and every such trial shall be conducted in the same manner, as nearly as circumstances will admit, as trials before a judge of the High Court, but not so as to make the tribunal of the referee a public court of justice : (O. XXXVI., r. 31.) "Where any cause or matter, or any question in aiiy cause or matter, is referred to a referee, he may, subject to the order of the court or a judge, hold the trial at or adjourn it to any place which he may deem most convenient, and have any inspection or view, either by himself or with his assessors (if any), which he may deem expedient for the better disposal of the controversy before him. He shall, unless otherwise directed by the court or a judge, proceed with the trial de Me in Mem, in a similar manner as in actions triedby a jury : (O. XXXVI., r. 30.) Where an order of reference is made directing it to be subject to the ■Common Law Procedure Acts and the Judicature Acts, the award will not be set aside because the reference did not proceed de Me in diem : {Robin- son V. Robinson, W. N. 1876, p. 154; 34 L. T. Rep. N. S. 337 ; 24 W. B. «75.) The official referees shall sit at least from 10 a.m. to 4 p.m. on every day during the Michaelmas, Hilary, Easter, and Trinity Sittings of the High Court of Justice, except on Saturdays, during such sittings, when they shall sit at least from 10 a.m. to 2 p.m. ; but nothing in this rule shall prevent their sitting on any other days : (O. LXI., r. 8, Feb. 1876, there called r. 10.) VI. POWERS. In- aU cases of any reference to or trial by referees under this Act the referees shall be deemed to be officers of the court, and shall have such authority for the purpose of such reference or trial as shall be prescribed by rules of court or (subject to such rules) by the court or judge ord6ring such reference or trial : (J. A. 73, s. 58.) And any such special referee so agreed on shall have the same powers and duties and proceed in the same manner as an official referee : (J. A. 1873, s. 56.) Subject to any such order as last aforesaid [by the court or judge ordering the reference] the referee shall have the same authority in the conduct of any reference or trial as a judge of the High Court when presiding at any trial before him : (O. XXX v I., r. 32.) An application for production of documents should be made to the court or judge ordering the reference : {Re Leigh, L. Rep. 4 Ch. Div. 661.) Nothing in these rules contained shall authorise any referee to commit any person to prison or to enforce any order by attachment or otherwise : (O. XXXVI., r. 33.) Vn SUBMITTING QUESTION FOR COURT'S OPINION, OR STATING FACTS SPEGIAILT. The referee may, before the conclusion of aiiy trial before him, or by Ms report under the reference made to him, submit any question arising therein for the decision of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the court may direct : (O. XXXVI., r. 34, March, 1879, repealing O. XXXVI., r. 34.) D D D 2 772 Referees. Vin. REPORT. 1. On Eepebence eoe Inquiry and Repoet only. Where any question is referred to a referee for report only, the referee most report to the court : (see J. A. 1873, s. 56 ; Gruikshank v. Floating Swimming Baths Company, L. Rep. 1 C. P. Div. 260.) The report must state the facts on which it is based, and the principle on which damages have been assessed : {Mayor of Birmingham v. Allen, W. N. 1877, p. 190.) The evidence should not be stated : (Longman v. Hast, &c., s-ap.) The referee must by his report find the materials on which the court is to act : (per Bramwell, L.J., Longman v. East, &c., swp.), Subject to any rules of court [where any question is referred] for inquiry and report to any official or special referee .... the report of any such referee may be adopted whoUy or partially by the court, and • may (if so adopted) be enforced as a judgment by the court : (J. A. 1873, S.56.) 2. On Reference fob Trial. The report of any referee upon any question of fact on any such trial shall (unless set aside by the court) be equivalent to the verdict of a jury : (J. A. 1873, sect. 68.) 3. SiTBmiTTiNG Questions ok Stating Facts Specially. The referee may . . . by his report under the reference made to him, submit any question arising therein for the decision of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the ordeir to be made on such submission or statement shall bb entered as the court may direct : (O. XXXYI., r. 34, March 1879,. repealing O. XXXVI., r. 34.) IX. POWERS OF COURT AFTER REPORT OR FINDING. With respect to all such proceedings before refereies and their reports, the court or such judge as aforesaid shall have, in addition to any other powers, the same or the like powers as are given to any court whose juris- diction is hereby transferred to the said High Ootirt with respect to refer- ences to arbitration and proceedings before arbitrators and their awards respectively, by the Common Law Procedure Act 1854 : (J. A. 1873, s. 59 ; and see Arbitration.) The court shall have power to require any explanation or reasons from the referee, and to remit the cause or matter, or any part thereof, for re- trial or further consideration to the same or any other referee ; or the court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence as the court may direct : (O. XXXYI., r. 34, March 1879, repealing O. XXXVI., r. 34.) Explanations or reasons required from a referee are not given on oath : (Broder v. Saillard, L. Rep. 2 Ch. Div. 692.) As to when a report wUl be remitted, see Mayor of Birimngham v.. Allen, sup.) Where an official referee has made his report, any application under r. 34 must be made within the time limited for moving against the verdict of a jury : (Sullivan v. BiviMgton, 28 W. R. 372.) The party affected by the report may move to set it aside on the gprounds of rejection of evidence, or on such other grounds as a new trial is ordered : (Wood v. Barnicot, W. N. 1878, 25, 36; Longman v. East, ^c. sup. ; see New Trial.) The party moving must be prepared with some affidavit or other Referees. , 773 eTidence of what took, place before the referee : (Stubhs v. Boyle, L. Rep. - 2Q.B.Div.m.) The motion must be on notice : {Graves v. Taylor, 27 W. Bep. 412.) X. JUDGMENT ON REFERENCE. It has been held that a referee has no power to order judgment to be entered in any case : (Longman v. East, L. Rep. 3 C. P. Diy. 142 ; 38 L. T. Rep. N. S. 11 ; see O. XL., r. 5.) Where the referee has made a report on a reference for inquiry and report only, the proper course seems to be to take out a summons, or move that the report may be adopted : (Wood v. Barnicot, "W. N. 1878, pp. 25, 36 ; M-unro v. Bendall, inf.) Where the referee has reported on a matter referred for trial, , the proper course is to move for judgment, on the result of the trial before the referee, the motion beins* set down : (Mvmro v. Bendall, W. N. 1878, p. 41.) XI. FEES AND REMUNERATION. All proper and reasonable travelling expenses incurred by [official referees] in the discharge of their duties shall be paid by the Treasury out of moneys to be provided by Parliament : (J. A. 1873, s. 83.) The fee to be taken by an official referee attached to the Supreme Court, in respect of all matters, questions, or issues referred to him by any order, shall be the sum of 51. for the entire reference, irrespective of the time occupied, which sum shall be paid before the reference is proceeded with : <0. 24th April 1877, rescinding O. 1st Feb. i876.) Every such fee shall be collected by means of a stamp or stamps to be affixed to the appointment paper or summons issued by the official referee for appointing the time and place for proceeding with the reference : {Id.) Wnere the sittings under a reference are to be held elsewhere than in London, a convenient place in which the sittings may be held shall be provided to the satisfaction of the official referee, by and at the expense of the party proceeding with the reference ; and there shall be paid, in addi- tion to the above fee of SI., 11. lis. 6d. for every night the official referee, and 158. for every night the official referee's clerk, is absent from London ■on the business of the reference, together with the reasonable expenses of thedr travelling from London and back : {Id.) A deposit on account of expenses may be required before proceeding with the reference, or at any time during the course thereof ; and a memo- randum of the amount deposited shall be delivered to the party making the deposit : {Id.) The fees and expenses and deposit (if any) hereby authorised in respect of any reference shall be paid in the first instance by the party proceeding with the reference. The official referees shall conform to all regulatioiis that may be made from time to time by the Treasury for the accounting for all moneys received by them : (O. 24th April 1877, rescinding O. of 1st Feb. 1876.) The remuneration (if any) to be paid to special referees or assessors shall bo determined by the court : (J. A. 1873, sect. 56.) In the case of a special referee. Hall, V.C. fixed the remuneration at -Si. 5s. a sitting: {Tfallis v. Lichfield, W. N. 1876, p. 30.) 774 Registries— Reply . REGISTRIES. [See DisTBicT Registries.] REHEARING. I. HIGH COURT. The juriadiction to rehear, formerly possessed by equity judges, ie not possessed by judges of the High Court, at any rate where an order has been drawn up : {Be St. Nazavre Land Convpawy Limited, L. Rep. 12 Gh. Div. 88 ; 41 L. T. Rep. N. S. 110 ; 27 W. R. 854.) But the court has a sort of general control over orders made on iJDiteiiooutory applications : {Mullins v. Howell, L. Rep. 11 Oh. Div. 763 ; 48 L. J. 679, Oh.) [See also Judgment, XVII.] n. COURT OP APPEAL. The Court of Appeal has no jurisdiction to rehear an appeal, even pro forma: (Flower v. Lloyd, L. Rep. 6 Ch. Div. 297; 37 L. T. Rep. N. S. 419; 46 L. J. 838, Oh.; 25 W. R. 793; Has parte Banco de Portttgal, L. Rep. 14 Ch. Div. 1 ; 42 L. T. Rep. N. S. 210.) III. HOTSB OP LORDS. The House of Lords has jurisdiction to rehear an appeal: (De la Wa/rre v. Sacjcville, W. N. 1877, p. 217.) REMOVAL OF ACTION. [See Cebtiokabi; Tbastsves.] RENEWAL OF LEASE. When any person who might, if within the jurisdiction, be compelled to renew any lease, is out of the jurisdiction, the court may, on the- petition of any person entitled to such renewal, whether under disability or notj direct such person as the court shall appoint to surrend^ the subsisting lease and execute a new one : (see 11 Geo. 4 & 1 WilL 4, e. 65, ss. 18, 20 ; see also Infants, VI. ; Masbied Women, IV.) REPLY. [See Pleading, X.-^XII.J Eestradning Order. 775 RESTRAINING ORDER. I. IN ACTION. n. ON MOTION OR PETITION. 1. Application. 2. Evidence. 3. Okdee. (a) Beqidsitei. lb) Service. (c) Effect. 4. CoMMENCiNa Action. 5. DiscHABOiNa OB Vabting Obdeb. I. IN ACTION. The court may order the Bank of England to suffer the transfer of stock or pay dividends, aitid to grant an injunction restraining such transfer or payment, althongh the governor and company are not parties to the suit : (39 & 40 Geo. 3, c. 36.) The injunction could only be granted after a suit was commenced, and- then only on notice to the defendant : (Ayck. 296 ; see also Dan. 134, 1065, 1537.) n. ON MOTION OE PETITION. 2. Application. It shall be lawful for the .... court .... upon the application of any "party interested, by motion or petition, in a summary way, without [action], to restrain the governor and company of the Bank of England, or any other public company, whether incorporated or not, from permitting the transfer of any stock in the public f anas, or any stock or shares in any public company, which may be standing in the name or names of any person or persons, or body politic or corporate, in the books of the governor and company of the Bank of England, or in the books of any such public company, or from paying any dividend or dividends due or to become due thereon : (5 Vict. c. 5, s. 4.) The application is ex parte : (Dan. 1538.) The petition should be intituled in the matter of the person on whose behaU it is presented, and also of the Act : (Ayck. 297.) It must state the circnmstuices on which the petitioner relies : {Id. ; see also Be Locke, 18 W. R. 275 ; W. N. 1877, p. 38.) 2. Evidence. The a£Sdavit must show special grounds for the intervention of the court : (Ayck. 297.) The amount of stock, or the particular shares sought to be affected, and the name of the person in whose name it stands, should also be shown : (Dan. 1539.) 3. Oedek. (a) Requisites. Every order of the .... court upon such motion or petition as afore- said, shall specify the amount of the stock or the particular shares to be affected thereby, and the name or names of the person or persons, body politic or corporate, in which the same shall be standing: (5 Vict. c. 5, s. 4.) (6) Service. The order must be served on the Chief Accountant at the Bank of 776 Mestraimng Ofder — •Scandal. 'Englaiid, or, in case of any other company, on the secretary or other pnmic officer by delivering a copy and showing the original : (Dan. 1539.) (c) Effect. The order is only intended for interim purposes : (Ayct. 297.) But it continues in force until disclmrged, even though an action be commenced for the same purpose : (Id. ; Dan. 1539.) 4. Commencing Action. The party obtaining the order should proceed to issue a writ to sustain it within a reasonable time : (Ayck. 297 ; Dan. 1639.) 6. DiSCHABGING OR VaBTING ObSEB. The .... court .... shall have full power, upon the application of any party interested, to discharge or vary such order, and to award such costs, upon such application, as to the said court shall seem fit : (5 Vict, c. 5, s. 4.) The application is by motion, on notice to the party who obtained the , order, and supported by affidavit : (Dan. 1539.) REVIEWING TAXATION. [See Appeal, rV.] SALE. [See Peopebtt, VII., VIII.] SAMPLES. [See DiscovEET, VI.] SCANDAL. ESee OHAittBEBS, XX.; Discoyeet, II. 1; Evidence, HI. 10 Pleading.] Search— Sp.aled Estates. ' 777 SEARCH. The following is the form of jjrcecijpe ; Sbabch. In the High Court of Justice. Division. 18 No. . V. Search for Dated the day of 18 . (Signed) (Address) Agent for Solicitor for (Sched. E. 32 to RTiles of April, 1880.) [See also Judgment ; Central Office ; Appearance.] SEQUESTRATION. [See Execution.] SETTLED ESTATES. I. INTERPRETATION. II. TO WHAT PKOCBEDINGS ACT APPLIES. m. WHERE GENBEAL PRACTICE APPLIES. IV. ORDERS OF COURT AND FORMS. V. WHERE EXERCISE OF POWERS FORBIDDEN. 1. Pebvious Application to Pabliament. 2. CONTEAET DbOLAEATION IN SETTLEMENT. 3. In Extension of Settlob's Estate. VL EXERCISING POWERS REPEATEDLY. VII. EXERCISE NOTWITHSTANDING EXPRESS POWERS. VIII. PRELIMINARY CONTRACTS FOE LEASES. IX. LICENCES TO LEASE COPYHOLDS. X. LEASES. 1. Savino op Powebs undeb othee Acts. 2. Pabticulae Leases oe Powee op Leasing Atjthobisbd. 3. Whole ob Paet op Peopeett Leased. 4. subbendebed leaseholds. 5. Conditions on Acthoeising Leases. (o) Interest of all Pwrties regarded. (6) Lease to take eject in Possessi-on. (c) Term. {d) Rent. (e) Protection of Trees. (/) Deed executed. (j) Cov/nterpart executed. (h) Condition for re-entry. (i) Other Stipulations. 6. How Lease takes Eppect. 7. General Powbe op Leasing. 778 Settled-Estates. XI. SAXES. 1. General Powbb to Authobibe. 2. SubfaCe BESEBviNa Minerals ob Biqets. 3. Minerals without Surface. 4. Consideration by Bent. 5. Deed Exeoutbd. 6. Pfbchasb Monbt [see post, 21. V III.] Xn. SANCTIONING PROCEEDINGS. Xm. SANCTIONING MPEOVEMENTS. XIV. PEOCEDUEE TO OBTAIN COUET'S SANCTION. 1. Applicants. (a) No Obligation io a/ppVy. (b) Interest necessary in AjppUccmt. (c) Infants. (1) Bepresented by Ghiardians. . (2) Next Friends. (3) Tenants in Tail. (d) Lvmatics {so found). (1) Bepresented by Committees. (2) Tenants in TaJl. (e) Lwnatics (not so fornid). (/) Mwrriei Women. (g) Samkrwpts, ^e. 2. Petition. (a) Assigned to Ohwncery Division. (b) TitU. (c) Petitioner's Deseri/pUon. (d) Description of Property. 3. Appointing Dat fob Hbabing. 4. Appointing Infant's Guabdian. 5. Dibection to Guabdian of Infant Tenant in Tail. 6. Direction to Comiiittee of Lunatic Tenant in Tail. 7. Examination of Married Woman. (a) When it takes place. (b) In what Cases necessary. (c) B^tyre whom taken. (1) Within Jnrisdiotion. (2) Oi^t of Jurisdiction. (U the persons in existence having any beneficial estate or interest under or by virtue of the settlement, and also all trustees having any estate or interest on behalf of any unborn child : (s. 24.) Persons interested, down to the first tenant in tail, must consent : {Be Bolton's Estates, 24 L. T. Rep. BT. S. 86.) Trustees can only consent for unborn children, unless, perhaps, such trpstees have a power of sale : {Orey v. Jenkins, 26 Beav. 351.) Where the property was vested in trustees, who had power to receive and give discharges for the money, it was held unnecessary to have the consent of aU the cestuis que trustent, and that the trustees' consent was sufficient : {Byre v. Saunders, 4 Jur. N. S. 830.) _ Where property was devised upon trust to pay the rents to a person for life, and after his death to sell and stand possessed of the proceeds upon certain trusts, and the trustees were empowered to give receipts, Lord RomUly held the consent of the beneficiaries to be unnecessary {Be Potts, L. Rep. 16 Eq. 631, n.) ; but he afterwards refused to follow it, and Jessel, M.R. and Hall V.C. have required the consent of the beneficiaries, though the trustees had power to sell and give receipts : {Be Ives, L. Rep. 3 Oh. Div. 690; Be Bendy, L. Rep. 4 Oh. Div. 879.) Malins, V.O. has held that such trustees sufficiently represented the beneficiaries : {Be Strutt, L. Rep. 16 Eq. 631, n. ; Stacer. Gage, L. Rep. 8 Oh. Div. 451.) HaU, V.Q. dispensed with service on some of the beneficiaries : {Be Charnberlain, 23 W. B.852.) Settled Estates. 795 Persons beneficially interested in respect of portions, or of a jointure, should consent : {Be Broughton, 12 W. B. 34 j Be Tarbuti, 8 L. T. Rep. N. S. 657.) \ » - F Consents which cannot be obtained on account of its being unable to ascertain the persons who ought to give them, as in the case of unascer- tained contingent remaindermen, are unnecessary : {Beioley v. Carter, L. Rep. 4 Oh. App. 230; 19 L. T. Rep. N. S. 472; Be Strutt, L. Rep. 16 Eq. 629.) i- . . F The estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to the possession or to the receipt of the rents and profits as aforesaid unless they shall concur therein : (s. 54.) (c) Sow Consent Given. (1) Infants [see sitp., 1 (c)]. (2) Luiiatica*(So Found) [see svp., 1 (rf)]. (3) Married "Women [see sup., 1 (/)]. A married woman entitled to a jointure, charged on the estate, must be examined : {Be Tarbutt, 8 L. T. Rep. N. S. 657.) (4) Bankrupts, &c. [see sup., 1 {g)']. {d) Dispensing with Consents. Where an infant is tenant in tail under the settlement it shall be lawful for the court, if it shall think fit, to dispense with the concurrence or consent of the person, if oidy one, or all or any of the persons, if more than one, entitled, whether beneficially or otherwise, to any estate or interest subsequent to the estate tail of such infant : (s. 25.) [After notice to notify has been given, as mentioned post, 10], an order may be made upon any application notwithstanding that the concurrence or consent of any such person as aforesaid shaJl not have been obtained or shall have been refused, but the court in considering the application shall have regard to the number of persons who concur in or consent to the application, and who dissent therefrom or who submit or are to be deemed to submit their rights or interests to be dealt with by the court, and to the estates or interests which such persons respectively have or claim to have in the estate as to which such application is made ; and every order of the court made upon such application shall have the same effect as if all such persons had been consenting parties thereto : (s. 28.) The court can dispense with consent, though notice to notify has not been given : {Be HooJce, W. N. 1875, p. 29 ; Be Cundee, W. Ni 1877, p. 184.) The court will not dispense with the consent of persons opposing, if their number and the value of their interests are nearly equal to those of the persons supporting the petition : {Be Taylor, L. Rep. 1 Oh. Div. 426 ; 3 Ch. Div. 146.) Where in the opinion of the court it w;onld be more advantageous to sell a settled estate together with property of the testator to which he was absolutely entitled as one estate, the interest of a person opposing who was interested only in the event of four children all dying under the age of twenty-one years without having issue living at their death was held to be too remote for consideration : {Be Spurway's Settled Estates, L. Rep. 10 Oh. Div. 230; 40 L. T. Rep. N. S. 377 ; 48 L. J. 213, Oh.) The court dispensed with the consent of a married daughter, to save expense, when aU the other children consented : {Be Thorp, W. N. 1876, p. 251.) 796 Settled Estates. It was held that an infant bom after presentation -of the petition need not be served :I(-Be Lewis, 24 W. R. 103.) ' (e) Saving Rights of Non-Consenting Parties. It shall be lawful for the court, if it shall think fit, to give effect to any petition subject to and so as not to affect the rights, estate, or interest of any person whose concurrence or consent has been refused, or who has not aubmitted or is not deemed to hare submitted his rights or interests to be dealt with by the court, or whose rights, estate, or interest ought in the opinion of the court to be excepted : (s; 29.) Orders have been made subject to the charges imposed on the estate in favour of a great number of legatees {Be Legge, 6 W. B. 20 ; Be Parry, 34 Beav. 462), and subject to the right of a person of imsound mind, not so found, to a definite annual sum out of the property : (Be Tarhutt, 8 L. T. Rep. N. S. 657 ; Be Franklin, 7 W. B. 45.) 10. Notice to Notify Assent, &c. [a] To Whom Given Generally and Form. Where on an application under [the] Act the concurrence or consent of any such person as aforesaid [see sup., 9] shall not have been obtained, notice shall be given to such person in such manner as the court to which the application shall be made shall direct, requiring him to notify within a time to be specified in such notice whether he assents to or dissents from such application, or subjnits his rights or interests so far as they may be affected by such application to be dealt with by the court : (s. 26.) Every such notice shall specify to whom and in what manner such notification is to be delivered or left : (Id.) A form of notice is given in Appendix 3 to the Orders. A copy of the notice, with a form of notification at the foot, must also be sent : (see Form 3.) The notice required to be g^ven by the 26th section of the Act, if given before the hearing (or 2 given after the hearing, and the judge shall not otherwise direct), may, without any other direction of the court, be giyen within the jurisdiction of the court, except in the case of a person of unsound mind not so found by inquisition, by delivering to the person to be served a notice (in the Form No. 3 in the Appendix hereto) with such variations as circumstances require : (O. 4.) The time to be specified in such notice for the person served to deliver or leave a notification shall — (a) in case the person to be served is a guardian of an infant, be such as shall be directed by the judge in the order appointing the guardian, and in case the person to be served is a married woman, or a committee of a lunatic, not less than twenty-eight clear days after the service^ (6) and in other cases not less than fourteen clear days after the service : (0. 4.) (&) Infants [see sup., 1 (c)]. (c) Lunatics {So Fownd) [see sup., 1 (d)]. (d) Lunatics {Not so Found) [see post, (gr)]. (e) Banhrvpts, &c. [see sup., 1 (j)]. (/) Persons out of Jurisdiction [see "post, (jr)]. (gr) Where Special Directions Necessary. In case the person to be served is of unsound mind, not so found by inquisition, or out of the jurisdiction of the court, or it is desired to serve such notice on any person within the jurisdiction of the court in any other manner than above provided, an application shall be made at chambers ex parte by the petitioner for directions as to the manner in which such notice shall be given, and as to the time to be specified in Settled Estates. 797 such notice •within which the notification is to be made by the person' served : (O. 4.) For form of summons see Appendix to Orders, Fo. 2. Notice has been directed to be given to a person of unsound mind, not so found {Be Crahtree, 32 L. T. Rep. N. S. 349) ; and the notice should also be served on the persons in whose care he is : {Id.) Where a person was too old to consent in writing, notice was ordered to be given by serving the petition on him : {Be Slach, W. N. 1875, p. 224.) . {h) Dispensing with. Provided also, that where, on an application under [the] Act the concur- rence or consent of any such person as aforesaid shall not have been obtained, and in case such person cannot be found, or in case it shall be uncertain whether he be living or dead, or in case it shall appear to the court that such notice as aforesaid cannot be given to such person without expense disproportionate te the value of the subject-matter of the application, men and in any such case the court, if it shall think fit, either on the ground of the rights or interests of such person being small or remote, or being similar to the rights or interests of any other person or persons, or on other ground, may by order dispense with notice to such person, and such person shall thereupon be deemed to have submitted his rights and interests to be dealt with by the court : (s. 27.) 11. INSPECTION AND Copt of Petition. Any person served with a notice, pursuant to the 26th section of the Act, requiring him to notify whether he assents to or dissebts from the application or submits his rights or interests, so far as they may be affected by such application, to be dealt with by the court, and any trustee or other person served with notice pursuant to the 30th section of the Act, shall be at liberty, upon reasonable notice to the petitioner's solicitor, to inspect and peruse the petition without payment of any fee, and he shall be entitled to be furnished with a copy thereof upon such application, terms, and conditions as are provided by rules 8, 9, 12, and 13 of Order V. of the Additional Rules of Court, under the Supreme Court of Judicature Act, 1875, da,ted the 12th Aug. 1875 : (0.22; Copies; Costs.) 12. Notification of Assent, &c. (a) What Given. A form of notification, which must be annexed to or preceded by a copy of the notice to notify, is given in Appendix 4 to the Orders, and' should be sent by the person sending the notice to notify : (see Forms.) A request to be heard in opposition may be combined with the notice : (see App. 4.) (6) By Infants [see sv/p., 1 (o), 5]. (c) By Lunatics {Bo Fownd) [see a«p., 1 {d), 6]. (d) By Banhrupts, &e. [see swp., 1 (jf)]. (e) Consequence of not Gi/vvng. In case no notification shall be delivered or left in accordance with the notice and within the time hereby limited, the person to or for whom such notice shaU have been given or left shall" be deemed to have submitted his rights and interests toT)e dealt with by the court : (s. 26.) 13. Postponing Hearing. When a petition has been put into the paper for hearing, and by reason of the parties not being ready, or for any other cause, the judge allows it to stand over generally, it may be put into the paper for a subsequent day, without any application to the court or judge, on the petitioner or. his 798 Settled Estates. solicitor applying for that pmpose to the secretary of the Lord Chancellor or Master of the Rolls (as the case may be) : (O. 3.) Notice of the appointment of such subsequent day shall be given by the petitioner, or his solicitor, two clear days before the day fixed, to the other parties entitled to appear on such petition : (O. 3.) 14. Etidencb. (o) As to Grounds for Application. Upon every petition the court shall be satisfied by sufficient evidence that it is proper and consistent with a due regard for the interests of aU parties entitled under the settlement that the powers should be exercised ; and it shall be stated in the affidavit why and upon what ground it is deemed to be so : (O. 16.) (6) As to no Previlous Application to Parliament. TJpon every petition evidence shall be produced to satisfy the court that neither the applicant nor any party entitfcd has previously applied to either House of Parliament for a private Act to effect the same or a similar object, or, if any such application has been made, that the same was not rejected on its merits or reported against by the judges to whom the BiU may have been referred : (O. 17.) (c) Of Notice to Trustees. Upon every petition where there are any trustees seised or possessed of any estate in trust for any of the persons whose consent or concurrence to or in the application is required, evidence is to be produced that notice of the application has been served on such trustees : (O. 16.) {d) With Regard to Leases. When application is made to the court, either to approve of a particular lease, or to vest any powers of leasing in trustees, the court shall require the applicant to produce such evidence as it shall deem sufficient to enable it to ascertain the nature, value, and circumstances of the estate, and the terms and conditions on which leases thereof ought to be authorised: (s. 11.) 15. Oedbeing Notice by Advebtisembnts, &c. Notice of any application to the court under this Act shall, if the court shall so direct, but not otherwise, be inserted in such newspapers as the court shall direct : (s. 31.) The form of notice is given in Appendix 13 to the Orders. If upon the hearing of any petition the court shall be of opinion that notice ought to be served on any person who shall not have been served, or that notice of the application ought to be inserted in any newspaper, the court shall give directions accordingly, and the petition shall stand over generally or to such time as the court shall direct : (O. 18.) Applications for re-investment need not be advertised : [Be Sexton Ba/rns Estate, 6 L. T. Rep. N. S. 40.) Where the parties themselves were the only persons interested, and the order was to sanction building leases, advertisements were dispensed with : [Be Chilcott, W. N. 1877, p. 259.) Mistakes and irregularities in the advertisements have sometimes been overlooked : {Be Biehnell, L. Rep. 14 Eq. 467 ; Be Burley, 18 L. T. Rep. N. S. 458 ; Be Hehnsley, 29 L. T. Rep. N". S. 173.) When the petition is amended after advertisements have been issued, unless new facts and new parties are added, fresh advertisements are not required : {Be Bunhury, 11 L. T. Rep. N. S. 585.) XV. LEAVE TO OPPOSE PETITION. Any person or body corporate, whether interested in the estate or not, Settied Estates. 799 may apply to the court by motion for leave to be heard in opposition to or in support of any application which may be made to the court under this Act ; and the court is hereby authorised to permit such person or corpora- tion to appear and be heard in opposition to or support of any such application, on such terms as to costs or otherwise, and in such manner as it shall think fit : (s. 31.) When the court shall at the hearing have directed notice of any application to be inserted in any newspapers, any person may, within the time specified in the notice, apply to the court by motion, either ex parte or upon notice to the petitioner, for leave to be heard in opposition to or in support of the application, but if such motion shall be made ex parte and the court shall think fit to give such leave, it shall be subject to such order as the court shall think fit to make as to costs : (O. 19.) Any such person having obtained leave under the last preceding order shall be at liberty, upon reasonable notice, to inspect and~ peruse the petition at the office of the solicitor for the petitioner, upon payment of a lee of 13g. 4(i. on each inspection, and shaU be entitled (either without or after such inspection) to be furnished with a copy of such petition upon such application, terms, and conditions, as are provided by rules 8, 9, 12, and 13 of Order V. of the Additional Rules of Court, under the Supreme Court of Judicature Act, 1875, dated 12th Aug. 1875 : (O. 20 ; and see Copies; Costs.) Any order made on an_ ex parte motion giving leave to such person to be heard on any application shall be served on the solicitor for the petitioner : (O. 21.) XVI. OEDER. 1. How Entitled. [See svp., XIV. 2 (6).] 2. To State Names of Petitionebs, &c. Every order shall state, in addition to the names of the petitioners, the names of the persons other than the petitioners who concur or consent or to whom notice of the application has been given, or who (under Order 19) may have obtained leave to be heard in opposition to or in support . of the application, and whether any notification was received from the persons to whom notice has been given, and if any has been received the purport thereof, and also the names of the persons, if any, notice to whom has been dispensed with, and whether the order is made subject to any and what rights, estate, or interest of any person whose concurrence or consent has been refused, or who shall not or shall not be deemed to have submitted his rights or interests to be dealt with by the court, or whose rights or interests ought, in the opinion of the court, to be excepted : (O. 24.) As to entering the order, see Judgment, XV. ; Petition, V. In addition to the documents [usually left with the registrar there must be left] the affidavit of the service of the petition, and the London Gazette and newspapers containing the advertisement thereof : (Ch. Reg. Mar. 1860, r. 33.) 3. As to Stipulations in Lease and Poweb or Leasing. In eases where the court authorises a lease the order shall direct that the lease shall contain such conditions as are required by the Act, and such other covenants, conditions, and stipulations as the court shall deem expedient with reference to the special circumstances, or may direct the same to contain such covenants, conditions, and stipulations as may be 800' ' Settled Estates. approved by the judge at chambers without directing the lease to be settled by the judge : (O. 25.) In powers of leasing, the pro?nsions of s. 14 must be attended to : (see sup., X. 7.) 4. DlBECTIOBTS AS TO EXECUTION 01' DeED. When a particular lease or contract for a lease has been approved by the court, tne court shall direct what person or persons shall execute the same as lessor : (s. 12.) On every sale or dedication to be efEected as hereinbefore mentioned the court may direct what person or persons shall execute the deed of conveyance : (s. 22.) The court has no power to direct one person out of several who are entitled to the legal estate to convey for all : {Be Hole, W. N. 1868, p. 70.) Where after an order for sale one of the trustees died, the court directed a petition for the appointment of a new trustee to be presented : {Scott v. H^sch, 33 L. T. Rep. N. S. 498.) 5. Ohabging and Raising Costs. It shall be lawful for the court, if it shall think fit, to order that aU or any costs or expenses of all or any parties of and incident to any appli- cation under this Act shall be a charge on the hereditaments wMch are the subject of the application, or on any other hereditaments included in the same settlement, and subject to the same limitations ; and the court may also direct that such costs and expenses shall be raised by sale or mortgage of a sufficient part of such hereditaments, or out of the rents or , profits thereof, such costs and expenses to be taxed as the court shall direct : (s. 41.) The names of the persons advancing the money wiE be inserted in the order : {Be Tunstall, 14 L. T. Rep. BT. S. 352.) 6. Rbcoeding Exeecise of Powee. The court shall direct that some sufficient notice of any exercise of any of the powers conferred on it by [the] Act shall be placed on the settle- ment or on any copies thereof, or otherwise recorded in any way it may think proper, in all cases where it shall appear to the court to be practicable and expedient for preventing fraud or mistake : (s. 33.) The order has been directed to be indorsed on the deed of settlement : {Be Cross, 27 Beav. 592; Be Burley, W. BT. 1868, p. 148.) In all cases in which land in a register county or district is affected by the exercise of any powers conferred on the court by the Act, and the court shall direct notice to be recorded, pursuant to the 33rd section of the Act, such notice may be given by directing a memorial of the order to be registered. And in all cases in which the court shall not think it prac- ticable or expedient that notice under the said section should be recorded as therein mentioned, the order shall state that no record of the order need be made : (0. 23.) XVII. HOW SALE CONDUCTED. Every .... sale shall be conducted and confirmed in the same manner as, by the rules and practice of the court for the time being, is or shall be required in the case of land sold under a decree of the court : (s. 16 ; and see Pbopeett.) The court has power to authorise trustees to sell out of court gene- rally, they bringing the proceeds into court ; and to authorise a sale by public auction or private contract, subject to a reserve price settled in chambers : (Be Adam's Settled Estates, L. Rep. 9 Oh. Div. 116 ; 28 L. T. Rep. N. S. 877 ; but compare Be Srmth, W. N. 1878, p. 196.) As to when the deed must be settled by the judge, see Deeds. Settled Estates. 801 XVIII. PURCHASE MONET. 1. To WHOM Paid. All money to be received on any sale effected under the authority of [the] Act or to be set aside out of the rent or payments reserved on any lease of earth, coal, stone, or minerals as aforesaid, may, if the court shall think fit, be paid To any trustees of whom it may approve, or otherwise the same so far as relates to estates in England shall be paid Into court, ex parte the applicant in the matter of [the Settled Estates Act, 1877] : (s. 34.) 2. Interim Investment. / Until the money can be applied as [mentioned post, 6] the same shall be invested, as the court shall direct, in some or one of the invest- ments in which cash under the control of the court is for the time being authorised to be invested : (s. 36.) Such investments are Bank Stock, East India Stock, Exchequer Bills, 21. 10s. per Cent. Annuities, mortgages of freeholds or copyholds in Eng- land or Wales, Keduced 31. per Cent. Annuities, and New 31. per Cent. Annuities : (23 & 24 Vict. c. 38 ; Ch. O. Feb. 1st, 1861.) The court has regard to the circumstances of each case in ordering investments, so as to deal fdirty between tenants for life, or other limited holders, and remaindermen : {Cockburn v. Peel, 3 D. P. & J. 170 ; Vidler V. Parrott, 4 N. R. 392 ; Mortimer v. Picton, 9 L. T. Rep. N. S. 591 ; Fluid V. Fluid, 7 L. T. Rep. N. S. 690.) The investment will be made according to the ordinary course of the court, and the practice of the office : (Be Woodcock, L. Rep. 13 Eq. 183; 25 L. T. Rep. N. S. 459; and see Payment into and out of COtTBT.) The order should specify the particular investments : (Be Taylor, W. N. 1880, p. 84.) Wben the order for sale merely accelerated a power Under the settle- ment, the proceeds of sale were ordered to be paid at once, and without any intermediate investment, to the trustees, to be held upon the trusts declared by the settlement concerning the purchase money : (Be Morgan, L. Rep. 9 Bq. 587 ; Be Peacock, 15 L. T. Rep. N. S. 266.) 3. Income op Investments. The interest and dividends of such investments shall be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land : (s. 36.) 4. By whom Money Applied. The application of the money in manner aforesaid may, if the court shall so mrect, be made by the trustees (if any) without any application to the court, or otherwise upon an order of the court upon the petition of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land : (s. 35.) Payment has been directed to be made to trustees approved by the court, even where some of the parties beneficially interested were under disability (Saywa/rd v. Smdth, W. N. 1869, p. 37 ; Be Newman, 31 L. T. Rep. N. S. 265; L. Rep. 9 Ch. App. 681); but not where some of the persons interested were married women resident in Australia : (Aston v. Meredith, L, Rep. 13 Eq. 492 ; 26 L. T. Rep. N. S. 281.) 5. How Money Applied. Such money shall be applied as the court shall from time to time direct to some one or more of the following purposes : (namely,) . . . p p p 802 ' ' ■ Settled Estates. The purchase or redemption of the land tax ; The discharge or redemption of any incumbrance afEeeting the here- ditaments in respect of which such money wafl paid ; or, affecting any other hereditaments subject to the same uses or trusts ; or, The purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid; or. The payment to any person becoming absolutely entitled : (a. 34.) Anyfiiing in the nature of an addition or augmentation of an estate may be sanctioned ; thus the money may be expended in building or rebuilding houses or farm buildings {Be Leigh, L. Bep. 6 Oh. App. 887 ; 24 L. T. Rep. N. S. 467 ; Be Leslie, L. Rep. 2 Oh. App. 185 ; 34 L. T. Rep'. N. S. 239; Brakes. Trefusis, L. Rep. 10 Ch. App. 364; 33 L. T. Rep. N. S. 85 ; Bonaldson v. Bonaldson, L. Rep. 3 Ch. App. 743 ; 34 L. T. Rep. N. S. 900) ; in making lateral additions to houses {Be Speer, L. Rep. 3 Ch. App. 262) ; in making drains : {Be LesUe, swp. ; Be Croker, W. N. 1877, p. 38.) The purchase money of par^i of a settled estate may be applied in pay- ment of a sum assessed by a corporation, in pursuance of its statutory powers, upon the owners of another part of the settled estate, as their contribution towards the expenses of flag^ng and paying a street : {Be HilUard's Settled Estates, 38 L. T. Bep. N. S. 93.) Although the money has been allowed to be invested in repairs for the permanent improvement of the estate {Be Clitheroe, 20 L. T. Rep. N. S. 56 ; Be Bummer's Will, 2 De G. J. & S. 144 ; Be Pa/rtvngton, 1 N. R. 177 ; Be Johnson, L. Rep. 8 Eq. 348 ; Ex parte Sector of Claypole, L. Rep. 16 Eq. 584 ; 29 L. T. Bep. N. S. 51 ; Be Newman, L. Rep. 9 Oh. App. 681 ; 31 L. T. Rep. N. S. 265), it has lately been held that the money cannot be invested in repairs or improvements: {Brake w. Trefusis, L. Rep. 10 Oh. App. 364 ; 33 L. T. Rep. N. S. 85 ; Be Leigh, L. Rep. 6 Ch. App. 887 ; 24 L. T. Rep. N. S. 467.) The money cannot be applied, in recouping the tenant for life what he has expended : {Be Leigh, swp. ; Williams v. Aylesbwy Bailviay Company, L. Rep. 9 Ch. App. 684 ; 31 L. T. Bep. N. S. 521.) Where there was no trustee of the settled estate sold, the court required new trustees to be appointed, and the new lands purchased were ordered to be conveyed to them : (jBe Sexton Barns Estate, 10 W. R. 416.) Trustees with a power of sale and to give receipts will be allowed to take out the money as persons absolutely entitled : {Be Hohson, L. Rep. 7 Ch. Div. 708 ; and see Lands Claitsbs Act.) Where a tenant in tail wants payment out to himself, he must first execute a disentaUing deed {Be Broadmood, L. R^p. 1 Ch. App. 438 ; Be Beynolds, L. Rep. 3 Ch. App. 61 ; overruling Be Wood, L. Bep. 20 Eq. 372) ; and produce satisfactory evidence that there are no incumbrances : {Thornhill v. Millhajnh, 10 L. T. Bep. N. S. 124.) 6. Paid in Respect op Limited Inteebst. Where any purchase money paid into court under the provisions of [tne] -Act shall have been paid in respect of any lease for a lite or lives or years, or for a life or lives and years,' or any estate in land less than the whole fee simple thereof, or of-any reversion dependent on any such lease or estate, it shall be lawful for the courf^^ on the petition of any party interested in such money, to order that the same shall be laid out, invested, accumulated, and paid in such manner as the said court may consider will give to the parties interested in such money the same benefit therefrom as fliey might lawfully have had from the lease, estate, or reversion, in respect ol which such money shall have been paid, or as near thereto as may be : (s. 37.) Settled Estates. 803 XIX. TIME. The rules 1, 2, 3, and 6 of Order LVII. (as to time) in the schedule to the Supreme Court of Judicature Act, 1875, shall be applicable to these orders, and to all proceedings under the Act : (O. 26; and see Time.) XX. COSTS. The fees and allowances to solicitors of the court in respect to pro- ceedings under the Act shall be such as are provided by Order VI. of the Additional Bnles of Court under the Supreme Court of Judicature Act, 1875, dated 12th Aug. 1875, and are applicable to such proceedings,, and solicitors shall be entitled to charge and be allowed for a request and certificate under the 14th Order (of these Orders), and for attendances at the judges' chambers to procure the appointment of an examiner thereon, a fee of 13s. Ad. if the lower scale of fees is applicable, and \l. Is. in other cases : (O. 29 ; and sge Costs.) XXI. FEES. The fees to be taken by the officers of the court in respect to pro- ceedings under the Act shall be such as are provided by the Orders under the Supreme Court of Judicature Act, 1875, dated 28th Oct. 1875, and are applicable to such proceedings ; and every request under the 14th Order (of these Orders) shall bear a stamp of 2s. if the lower scale of fees is applicable, and 3s. in other cases : (O. 30 ; and see Pees.) XXII. VAIilDITT OF LEASE, &c. After the completion of any lease or sale, or other act, under the authority of the court, and purporting to be in pursuance of this Act,' the same shall not be invalidated on the ground that the court was not hereby empowered to authorise the same ; except that no such lease, sale, or other act shall have any efEeet against such person as herein mentioned whose concurrence or consent ought to be obtained, or who ought to be served with notice, or in respect of whom an order dispensing with such service ought to be obtained in the case where such concurrence or consent has not been obtained and such service has not been made or dispensed with : (S. E. A., 1877, s. 40.) [On a sale or dedication] the deed executed by such person or persons [as the Court directs] shall take efEeot as if the settlement had contained a power enabling such person or persons to efEeet such sale or, dedication, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct : (s. 22.) The Act puts the purchaser, &c., in the same position as one under a sale made under the ordinary authority of the court (Beioley v. Carter, L. Rep. 4 Oh. App. 238; 20 L. T. Rep. N. S. 381 ; Be Woodcoek, L. Rep. 3 Ch. App. 230; Re ShepTiemd, L. Rep. 8 Eq. 571 ; 21 L. T. Rep. N. S. 525), or that, subject to the qualification in the Acrt, having obtamed his conveyance, he has an unimpeachable title, notwithstanding formalt irregularities, or an excess in the jurisdiction : (Dart. Y. & P., 5th edit., 1180.) But a purchaser may object, any time before completion, that the order for sale was in excess of the jurisdiction : {Be Thompson, Johns. 418 ; Be Burdin, 2 L. T. Rep. N. S. 70.) XXin. AMENDING ORDERS AS TO POWERS OF LEASING [See 8v^. X., 7.] F F F 2 804 Settleni&nt — Severance, SETTLEMENT. Of Pkopbety. [See Infants ; Maebied Women.] Op Deeds. [See Deeds.] Op Issues. [See Issues.] SET-OFF. [See Pleading, VIL] SEVERANCE. I. OF SEVEEAIi CAUSES OP ACTION. 1. Bt Excluding Some. 2. Bt Oedeeino Sei^aea'CE Tbials. II. OF SET-OPP OE COUNTEE-CLAIM FEOM OEIGINAL CLAIM [See Plbadinos, VIL, 17.] III. OF DEFENDANTS IN THEIE DEFENCE. I. OF SEVERAL CAUSES OP ACTION. 1. Bt Excluding Same. Any defendant aUeging that the phtintifE has vinited in the same action seTeral causes of action which cannot be conremently disposed of in one ^action, may at amy time apply to the court or a judge for an order con- fining the action to such of the causes of action as may be conveniently disposed of in one proceeding : (O. XVII. r. 8 ; and see Wbit of Summons.) If, on the hearing of such application as in the last preceding rule, men- tioned, it shall appear to the court or a judge that the causes of action are such as cannot all be eonyeniently disposed of in one action, the court or a judge may order any of such causes of action to be excluded, and may direct the statement of claim, or, if no statement of claim has been delivered, the copy of the writ of summons, and the indorsement of claim on the writ of summons, to be amended accordingly, and may make such order as to costs as may be just : (O. XVII., r. 9.) 2. By Oedebing Sepaeate Tbials, &c. Subject to the following rules [of this order (as to which see' Weit op Summons)], the plaintiff may unite in the same action and in the same statement of claim several causes of action ; but if it appear to the court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be 'necessary or expedient for the separate disposal thereof : (O. XVII.- r.l.) II. OP SET-OPP OR COmTTER-CLAIM PROM ORIGINAL CLAIM. [See Pleading, Vn., 17.] Severance — 8hort Cause. 805 ni. OF DEFENDAJSTTS IN THEIE DEFENCE. ?^j?® ™ *^® ®^™® interest ought to join in their defence, or as co- plamtiffs, or will not be allowed costs ; and the rule holds good as to a husband and wife, or a bankrupt and his trustee : (Seton, 879 ; Mildmay y. Qmcke, L. Rep. 6 Ch. Div. 553; 46 L. J. 667, Ch.) c i *foo^® *'°®*® °* trustees severing, see Costs, HI., 2 {Severcmee) ; oeton, 4o3. As to the costs when partners sever, see Eden v. Naish (L. Rep. 7 Oh. Div. 781). SHARES. Chakging Okdeb. [See Chaeging Stock ; Exectition, XIX.] Rbsteaining Deaiinqs. [See Restbaining Obdee.J SHIP. [See Merchant Shippiijg Acts.] SHORT CAUSE. No cause ought to be set down " short," unless the evidence is by affi- davit : (per Jessel, M.R., W. N. 1875, p. 193.) A short cause should not occupy more than ten minutes : (17 Jur. 435.) Causes for .... hearing, or further consideration, and motions for [judgment] may be marked "short," on production of the certificate of the plaintiff's counsel, that the cause or motion is fit to be so heard, without the consent of the solicitors for any of the defendants : (Oh. Reg. March 15th, 1860, r. 10.) Counsel's certificate is prima facie ground for setting down " short " : {Felstead v. Gray, L. Rep. 18 Eq. 92.) The court may dispense with the certificate : {Ha/rgreaves v. White, 22 L. J. 640, Oh.) As to marking further considerations " short," see Ftjbthee Oon- sideeation, V. As to marking motions for judgment " short," see Judgment, XII., (6). Unless by consent of all parties, causes for original hearing will not be BO marked for any day before that for which notice of tnal is g^iven : (Ch. Reg. March 15th, 1860, r. 10.) The defendant must have notice of the cause being marked " short," and mnst produce an affidavit of such notice; otherwise the plaintiff cannot have judgment by default, if the defendant does not appear: (Molesworth v. 8nead, 11 W. R. 934.) If on the hearing the action is considered long, it will be sent into the general paper, and the plaintiff will be ordered to pay the costs of the day. 806 Short Causes-Sittings. The defendant may show any other fair reason, at the hearing, why the matter shonld not be heard as a short cause : (Felstead v. Oray, siim.) MaJins, Y.O., has decided that in short causes a statement of claim ' otight to be deliirered, and has refused to make an order without one, even where the defendant has stated that he does not requite one : Breton T. MocTcetf, W. N. 1875. p. 255 ; 33 L. T. Kep. N. S. 684 ; Boyes v. Gooh, W. F. 1876, p. 28 ; 38 L. T. Rep. N. S. 778.) The Master of the Rolls and Kail, V.O. have held that it is unnecessary : {Taylor v. Duckett, W. N. 1875, p. 193;; Greeny. Coleby,!!. Rep. 1 Ch. Div. 693; 45 L. J. 383, Ch.) SHORTHAND NOTES. [See Costs, IH., 2.] SHOW CAUSE. [See Motion, VII.] SITTINGS. I. ABOLITION OF TEEMS. n. PERIODS OP SITTING. 1. Of Coubt of Appiai and Hioh Cofbt. 2. Fob Jttby TbiaiiS in London and Middlesex. m. OFFICE OPEN DATS AND HOUES, IV. VACATIONS [see Vacations]. I. ABOLITION OF TERMS. The division of the legal year into terms shall be abolished so far as it relates to the admiiiistration of justice ; and there shall no longer be terms applicable to any sitting or business of the High Court of Justice, or of the Court of Appeal, or of any commissioners to whom any iurisdietion may be assigned under this Act ; but in all other cases in which, under the law now existing, the terms into which the legal year is divided are used a& a measure for determining the time at or within which any act is required to be done, the same may continue to' be referred to for the same or the like purpose, unless and until provision is othervrise made Inr any hiwful authority : (J. A. 1873, s. 26 ; Christ's College, Brechnoek, V. Martim, L. Rep. 3 Q. B. Div. 16 ; 36 L. T. Rep. N. S. 537 ; 46 L. J. 591, Q. B. ; 26 W. R. 637.) And see post. II. PERIODS OF SITTING. / 1. Op Oottbt of Appeal and High Coubt. Subject to Rules of Court, the High Court of Justice and the Court of Appeal, and the judges thereof respectively, or any such commissioners as aforesaid, shall have power to sit and act, at any time, and at any place, for the transaction of any part of the business of such courts respectively^ or of such judges or commissioners, or for the discharge of any duty which by any Act of Parliament, or otherwise, is required to be discharged during or after term : (J. A. 1873, s. 26.) Sittings — Solicitors. 807 The sittings of the Court of Appeal and the sittings in London and Middlesex of the High Court of Justice shall be, four in every year, viz., the Michaelmas sittings, the Hilary sittings, the Easter sittings, and the Trinity sittings : (O. LXI., r. 1.) The Michaelmas sittings shall commence on the 2nd November, and terminate on the 21st December : {Id.) The Hilary sittings shall commence on the llth January, and terminate on the Wednesday before Easter : (Id.) The Easter sittings shall commence on the Tuesday after Easter week and terminate on the Friday before Whitsunday : (Jd.) The Trinity sittings shall commence on the Tuesday after Whitsun week, and terminate on the 8th August : [Id.) The days of the commencement and termination of each sitting shall be included in such sitting : (O. LXI., r. 3.) 2. FoK JuKT Trials in London and Middlesex. Subject to Rules of Court, sittings for the trial by jury of causes and questions or issues of fact shall be held in Middlesex and London, and such sittings shall, so far as is reasonably practicable, and subject to vacations, be hSd continuously throughout the year by as many judges as the business to be disposed of may render necessary : (J. A. 1873, s. 30.) ni. OFFICE OPEN DATS AND HOURS. The several ofB.ces of the Supreme Court shall be open on every day of the year, except Sundays, Good Friday, Monday and Tuesday in Easter week, Whit-Monday, Christmas Day, and the next following working day, and sJl days appointed by proclamation to be observed as days of general fast,, humiliation, or thaiisgiving : (O. LXI., r. 4.) TTie of&ces of the Supreme Court (including the judges' chambers) shall close on Saturdays at two o'clock : (O. LXI., r. 4a., Feb. 1876.) The office hours in the several ofSces of the Supreme Court, other than the Summons and Order, Crown Office, and Associates' Department of the Central Office, shall be from ten in the forenoon to four in the afternoon, except on Saturday and in Vacation, when the offices shall close at two in the afternoon. In the excepted departments the hours shall be from eleven in the forenoon to five in the afternoon, except on Saturday, and in vacation, when the hours shall be from eleven in the forenoon to three in the afternoon : (O. LXI., r. 4c; April, 1880.) As to the office hours of the District Registries, see District Registries, V. IV". VACATIONS. [See Vacations.] SOLICITORS. I. GENERAL PBOTISIONS. 1. Name and PErviLEaES of Solicitobs. 2. jlteisdiction over solicitobs as orpicbbs. 3. Eegisteak of Solicitobs. 4. Adaptation of Foemeb Enactments. n. PEOCEEDINGS AEFECTING STATUS. 1. Cueek's Appeal feom Examinees' Decision. 2. Eneolmbnt of Abticles Nunc pbo tunc. 3. Steiking Off Eoll. (o) On Solicitor's AppUcaMon. 808 Solicitors. (b) For Misconduct. (1) What SufSoient. (2) Who may Apply. (3) Notice of Motion. (4) Eridence. (5) Motion to Shoir Canae. (6) Order Nisi. (7) Showing Cause. (8) Beference to Chambers. (9) Order Absolute. i. Be-aduission. (a) Where Allowed. (b) Notice of Application. (c) Affidavits. (d) Petition. (e) Order. 5. Taking out and Bekewinq Cebtificates. 6. Appeal from Eepitsal of CEKTrFioATE. in. EETAINEB AND AUTHORITY. 1. How So'licitoe Eetained. 2. COMMENCINGt PbOOEBDINOB WITHOUT AUTHOBITT. 3. Joint ob Several Ebtainee. IV. CHANGING SOLICITOE. V. COSTS. 1. Genebal Eules [see Costs]. 2. Special Aobeements. (a) Power to Make. (b) To fee Signed by both Parties. (c) Effect. (d) Taxation. (1) General Eule. (2) Where Costs incurred in Litigation. I (3) On Agreement by Gruardian, Trustee, or Committee. (4) After Payment. (5) On Solicitor's Death or Disability [see post (/), (1).] (6) On Change of Solicitor [see post (/), (2).j (e) Row Enforced or Set Aside. (1) Motion or Petition. (2) Order to Enforce. (3) Order to Set Aside. (/) Part Performance. (1) Death or Disability of Solicitor. (2) Change of Solicitor. 3. Secubitt foe Chaboes, &o. 4. Allowing Special Eemuneeatxon. 5. Allowing Interest. (a) On Taxation. ■ (b) On Pronowncmg Judgment or Order. 6. Lien. (o) General. (fe) Particvlar. 7. Ceabge. (a) Jv/risdAction. (1) Generally. (2) Over what Property. (3) What is Eeeoyery or Preservation. (4) For what Costa. (fe) ApplAcaUon. (1) By whom Made. 'Soticitors. S09 (2) Against whom Made. (3) In what Division Made. (4) When Made. (5) How Made, (c) Order. (1) Form. (2) Effect. 8. Revivino Suit por Costs. 9. Eecovbbt. (a) In General [see Costs, V., VII.] (6) By Uncertificated Solicitor or Jits CUent. 10. Payment by Soocitoe. VI. PAYMENT OP MONET AND DELIVERY OP PAPERS. 1. Jtjeisdiction. 2. Application. (a) By whom Made. (ft) Against whom Made. (c) How Made. (d) How Order Enforced. VII. ENFORCING UNDERTAKING. VIII. DISCLOSURE AS TO WRIT. 1. Enteeino Appeabance [see Appearance, XIV.] 2. GiviNa Notice op Obdeb poe Discoveby ob Inspection. I. GENERAL PROVISIONS. 1. Name and Pbivileges or Solicitoks. Prom and after the commencement of this Act all persons admitted as solicitors, attorneys, or proctors of or by law empowered to practise in any court, the jurisdiction of which is hereby transferred to the High Court of Justice or the Oourf of Appeal, shall be called solicitors of the Supreme Court, and shall be, entitled to the same privileges and be subject to the same obligations, so far as circumstances will permit^ as if this Act had not passed : (J. A. 1873, s. 87.) All persons who from time to time, if this Act had not passed, would have been entitled to be admitted as solicitors, attorneys, or proctors of or been by law empowered to practise in any such courts, shall be entitled to be admitted and to be caUed solicitors of the Supreme Court, and shall be admitted by the Master of the Rolls, and shall, as far as circumstances will permit, be entitled as such solicitors to the same privileges and be subject to the same obligations as if this Act had not passed : {Id.) 2. Jtjbisdiction over Solicitors as Officees. Any solicitors, attorneys, or proctors to whom this section applies shall be deemed to be officers of the Supreme Court ; and that court, and the High Court of. Justice, and the Court of Appeal respectively, or any division or judge thereof, may exercise the same jurisdiction in respect of such solicitors or attorneys as any one of Her Majesty's superior courts of law or equity might previously to the passing of this Act have exer- cised in respect of any solicitor or attorney admitted to practise therein : (J- A. 1873, s. 87.) 3. Registbak of Solicitors. The regfistrar of attorneys and solicitors in England shall be called the registrar of solicitors : (J. A. 1875, s. 14.) 4. Adaptation of Former Enactments. The Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Court of Common Pleas, and the Lord Chief 81 Solicitors.' Baron, or any two of them, may, from time to time, by regulation, adapt any enactments relating to attorneys, and any declara,tion, certiflcate, or form required under those enactments, to the solicitors of the Supreme Court under sect. 87 of the principal Act (36 & 37 Yict. c. 66) : (J. A. 1875, s. 14.) The former enactments relating to attorneys have with some slight variation been retained : (See Rules of 2nd Nov. 1875.) The words " solicitor of the Supreme Court " are to be read into the enactments instead of the word " attorney : " (Rules of iJnd Nov. 1875 ; 40 and 41.) II. PROCEEDINGS AFFECTING STATUS. 1. Clekk's Appeal pkom Examiners' Decision. Any person who has been refused a certificate of having passed an intermediate or final examination, and who objects to such refusal, whether on account of the nature or difficulty of the questions put to him by the examiners, or on any other ground whatsoever, shall be at liberty within one month next after such refusal to appeal by petition in writing to the Master of the RoUb against such refusal : (40 & 41 Vict. c. 25, s. 9.) In the meantime, and until the Master of the Rolls otherwise directs, such petition shall, as to a final examination, be presented at the Petty Bag Office without the payment of any fee : {Id.) A copy of such petition shall be left therewith, and shall be delivered by the Clerk of the Petty Bag to the secretary of the Incorporated Law Society: Id.) The Clerk of the Petty Bag shall notify to such secretary the day appointed for the hearing of the petition : (Id.) The [petition] shall be heard by the Master of the Rolls on such day after the expiration of fourteen days from the day on which such petition was presented, and at such time aa he may appoint : (Id.) On the hearing of any petition under this section, the Master of the Rolls may make such order as to him may seem meet : (Id.) When any person who has been refused a certificate of having passed his final examination, on appeal to the Master of the RoUs obtains on order for his admission, such order shall entitle him to a certificate from the Incorporated Law Society of his fitness and capacity to act as a solicitor, and in the usual business transacted by a solicitor, in the same manner as if he had passed his final examination : {Id.) 2. Enrolment op AEa?icLES Nunc Pro Tunc. In case [the affidavit of due execution of articles] be not filed within .... six months [from the date of the contract], the same may be filed .... after the expiration thereof, but the service of [the clerk] shall be reckoned to commence, and be computed from, the day of filing such affidavit, unless [the court] shall otherwise order : (6 & 7 Vict. c. 73, S.9.) Where the delay has arisen from the illness, death, or neglect of the master, or of an agent, and in other cases of mistake or neglect, the court has ordered enrolment nunc pro tunc: (Oordery on Solicitors, 6.) The application is by motion, supported by affidavit of the facts, and notice of the application must be given to the secretary of the Incor- porated Law Society : {Ex parte Blades, 32 L. T. Rep. N. S. 33 ; Oordery, 8.) 3. Striking opp Rolls. (a) On Solicitor's Application. It is a matter of course to strike a solicitor off the Rolls at his own request : (Oordery, 236.) Solicitors. ' 811 The application is by motion : {Be Sturdy, 2 Jur. N. S. 452.) Aa affidavit by the solicitor must be produced, stating that there is no complaint against him as a solicitor, and that he does not apprehend any : (Ch. Aichb., 13th ed., 157.) The affidavit need not state that the solioitor has taken out his certi- ficate : {Id.} The affidavit need not, though it usually does, state the ground of the application : (Oordery, 236.) [The order] shall be filed with the Clerk of the Petty Bag, who shall thereupon make such entry as, or alteration in the said roll, as may be directed by such order, and inform the Registrar of Solicitors thereof : (Rules of 2nd Nov. 1875.) (6) For Misconduct. (1) What Sufficient. Felony. — ^A solicitor will, be struck off the roll for an indictable offence, after conviction, or though no indictment has been preferred: (Cord. 139.) Professional Misconduct. — A solicitor will be struck off the roll for gross professional misconduct, as falsely representing that an injunction' has been granted ; using an affidavit false to his. knowledge on taxation of costs ; serving a vexatious writ in the name of anothjer solicitor without his express authority ; fraudulently misappropriating moneys due to his client, or of which he is trustee, wilfully acting v?'ithout authority ; betraying his client's confidence : (Cord. 139-40.) Acting as Agent for Unqualified Person. — If any .... solicitor shall wilfully and knovringly act as agent in any action or suit in any court of law or eqtiity, or matter in bankruptcy, for any person not duly qualified to act as [a] solicitor .... or permit or suffer his name to be in any way made use of in any such action, suit, or matter, upon the account or for the profit of any unqualified person, or send any process to sucli unquali- fied person, or do any other act thereby to enable sUch unqualified person to appear, act, or practise in any respect as [a] solicitor in any suit at law or in equity, knowing such person not to be duly qualified as iiforesaid, and complaint shall be made thereof in a summary way to [the court], and proof made thereof upon oath to the satisfaction of the court that such .... solicitor hath vrilfuUy and knowingly offended therein as aforesaid, then and in such case every such solicitor . . , . so offending shall and may be struck off the roll, and for ever after disabled from practising as [a] solicitor, and, in that case, and npon such complaint and proof made ias aforesaid, it shall and may be lawful to and for the said court to commit such unqualified person, so acting or practising as aforesaid, to the prison of the said court, vrithout bail or mainprize, for any term not exceeding one year : (6 & 7 Vict. c. 73, s. 32.) Other Misconduct. — The jurisdiction is not limited to cases where the misconduct charged amounts to an indictable offence, or is professional in character, but extends to cases where the solicitor's conduct is such as to render him xmfit to continue to be an officer of the court : (Cord. 142.) But the question whether the misconduct was professional or not is material in determining whether the punishment is to be striking off or suspension: {Id. 143.) A solicitor wiU not generally be struck off the roU for contempt, but in aggravated cases, as where the solioitor kept out of the way and refused to comply with an order for payment of money, or refused to answer matters in an affidavit, the court has ordered him in default of compliance to be struck off for contempt : (Cord. 140-1.) ' 812 Solicitors. (2) Who may Apply. Any person damnified may apply against a solicitor under the summary jurisdiction -in respect of graver offences ; but it is usual to put the matter into the hands of the Incorporated Law Society : (Oord. 143.) Where the trial of an action discloses misconduct, the court will order the solicitor to show cause why he should not be struck off the roll : {Cave V. Cave, 43 L. T. Rep. N. S. 158 ; 28 W. R. 798.1 In such a case the court communicates with the oificial solicitor, who instructs counsel to move for leave to serve notice of the motion to show cause :' (Cave v. Cave, sup.) (3) Notice of Motion. Where application is intended to be made to any court for an order or rule to strike the name of any .... solicitor (not being [a] solicitor making the application] off the roU ... or for an order or rule to compel him to answer the matters of an affidavit, notice in writing shall be given to the registrar [of solicitors] of such intended applica- tiion fourteen clear days at the least before such application shall be made : (37 & 38 Yict. c. 68, s. 7.) The notice of the intended motion should be entitled in the action, if any, and in the matter of the solicitor : (Oord. 143-4.) It must be served personally on the solicitor unless he is keeping out of the way, when substituted service at his last known place of abode wDl be ordered : (Coid. 145 ; iJe a Solicitor, W. N". 1880, p. 36.) If the motion is to be made within the last four days of the sittings, fourteen clear days' notice must be given to the solicitor : {Id.) (4) Evidence. The motion must be supported by affidavits which must charge the guilt explicitly, and not merely state suspicious facts : (Cord. 144.) Copies of all affidavits intended to be used in support of [the] application shall be delivered to the registrar with the notice : (37 & 38 f ict. c. 68, s. 8 ; 8itp. (3).) The odurtwiU not entertain any .... application, except npon production of an affidavit proving that the notice required by [the] Act has been duly given, and that copies of all such affidavits have been duly delivered to the registrar : (37 & 38 Vict. c. 68, s. 9.) In cases of conviction, an examined copy of the conviction must be produced : (Cord. 145.) The affidavits should be entitled in the action, if any, and in the matter of the solicitor : (Cord. 144.) The applicant is not entitled as of right to see the solicitor's affidavits in reply : {Id.) (6) Motion to Show Cause. In cases of mere suspicion, the application is made, in the first in- stance, for an order to answer matters in an affidavit : (Cord. 141.) The application is by motion to show cause why the solicitor should not answer matters alleged against him in an affidavit, or why he should not be struck off the roU : (Oord. 144; 19 S. J. 635.) It is not usual to mention the Solicitor's name : {Id.) The Registrar may appear by counsel upon the hearing of any such application, and upon any other proceedings arising out of or in reference to the application : (37 & 38 Yict. c. 68, s. 10.) (6) Order Nisi. The order is nisi in the first instance : {Be an Attorney, 19 S. J. 635.) Solicitors. 813 (7) Showing' Cause. , Where the solicitor is a convict, he may appear by solicitor or in person under habeas corpus : (Cord. 145.) The registrar .... may apply to the court to make absolute any rule nisi which may have been granted by the court in the matter of such application, or to make an order that the name of the solicitor be struck off the roll of solicitors of the said court, or, as the case may be, to order the solicitor to answer the matters of the affidavit, or such other order as to the court may seem fit (37 & 38 Vict. c. 68, s. 10.) (8) Reference to Chambers. ^ The matter is frequently referred to chambers for report, and if addi- tional evidence is given after the report, it will be referred back if neces- sary : (Cord. 145 ; 24 S. J. 73.) The court will not at the hearing go behind the report : (Id.) (^ Order Absolute. When no cause is shown, the applicant should move ex parte on an affidavit of service, and the registrar's certificate of no cause shown, to make the order absolute : (Dan. 1439.) The order cannot be made in the alternative, why the solicitor should not answer matters in an affidavit, or why he should not be struck off the roll ; or that he should pay a sum of money or answer matters in an affidavit; but it may combine an order for payment and also to show cause : (Cord. 145.) When the solicitor does not answer the matter of an affidavit, an order to show cause why he should not be struck off may be granted : {Id.) When the solicitor answered incompletely, the court only enlarged the rule, to give the client the opportunity of making a further application : (Cord. 146.) In some cases suspension only is ordered : (Cord. 142-3, 146 ; Cave v. Ga^e, sup.) Where [the] court shall, upon motion, have ordered or directed a rule (whether nisi or absolute) or order to be drawn up for striking the name of [any] solicitor off the roU .... or for compeUing [a] solicitor to answer the matters of an affidavit, and such rule shall not have been drawn up by or on behalf of the person applying for the same within one week after the order or direction for drawing up the same shall have been made or given, it shaU be lawful for the registrar to cause the rule or order to be drawn up, and all future proceedings thereupon shall be had and taken as if the application for the rule or order had in the first instance been made to the court by the registrar : (37 & 38 Vict.' c. 68, s. 11.) Where the name of any .... solicitor is ordered to be struck off the roU .... on the application of any other person, the rule or order for that purpose shall forthwith, and before the same is acted upon, be produced to the registrar : (23 \ 24 Vict. c. 127, s. 24.) All orders made by the High Court of Justice or the Court of Appeal, or any division or judge thereof, for striking any solicitor off the roll, or for suspending any solicitor from practice, or for re-admitting any solicitor or restoring the name of any solicitor to the roU, or for altering the name of any solicitor on the roU, or for any other purpose involving any alteration in or addition to the roll of the solicitors of the Supreme Court, shall be filed with the clerk of the petty bag, who shaU thereupon make such entry on or alteration in the said roU as may be directed by such order, and inform the registrar of solicitors thereof : (Rules of 2nd Nov. 1875.) 814 ' Solicitors. I It ishall be lawful for tlie court to order ihe costs, ctarges, and expenses of the registrar of or relating to any of the matters aforesaid, to be paid by the solicitor against whom any such application is made or was iintended to be made, or by the person by or on whose behalf the application is made or was intended to be made, or partly by the one and partly by the other of them : (37 & 38 Tict. c. 68, s. 10.) 4. Bb-admission. (a) Where Allowed. ' In cases of misappropriation of money, it is a condition precedent to restoration, that the solicitor should have repaid the money, or at least made all the restitution in his power : and in the case of graver offences restoration will not be ordered : (see Cord. 146-7.) (6) Notice of Application. On an application to re-admit a solicitor of the Supreme Court who has been struct off the roll .... the applicant shall, six weeks' before the appUoation is intended to be made, give notice thereof, as in the case of an original admission : (Rules of 2nd Nov. 1875.) (c) Affidavits. The affidavits in support of such application shall be filed at the Petty Bag Office, and a copy thereof shall at the same time be left with the Clerk of the Petty Bag, to be delivered by him to the Registrar of Solicitors : (Id.) {d) Petition. Any application for re-admission shall be W petition to the Master of the Bolls, to be presented to the Petty Bag Ofttce without the payment of any fee, and a copy of such petition shall be served on the Registrar of Solicitors not less than fourteen days before the same shall be heard. On hearing such petition the Master of the BoUs may dispose of the same, or, if he shall think fit, may refer the same to any other division of the High Court of Justice : (Id.) (e) Order. The order for such re-admission .... shall (if made) be drawn up (ae the Master of the Rolls shall direct) on reading such affidavits, and an affi- davit of such copies having been left and notices given in compliance with this order : {Id.) As to filing the order, see syp. AH application to dispense with any rule or rules as to any re -admission .... shall be made to the Master of the RoUs in such manner as he shall from time to time direct : (Rules of Nov. 2nd, 1875.) 5._ Taking out and Renewing Cbetificatbs. If any solicitor of the Supreme Court, after having at any time taken put a stamped certificate, neglects for a whole year after the expiration thereof' to renew the same for the following year, the registrar shall not afterwards grant a certificate to such solicitor, except under an order of the Master of the RoUs, and it shall be lawful for the Master of the Rolls to direct the registrar to issue a certificate to such person on such terms and conditions as he may think fit : (23 & 24 Vict. c. 127, s. 23 ; 40 & 41 Vict. c. 25.) Six weeks' notice must be given, and the affidavits must be filed, and a copy left, as in the case of re-admission : (Rides of Nov. 2nd, 1875 ; see svp. 4.) No petition or summons is necessary : (Dan. Forms, 1123.) The order for snch .... taking out or renewal shall (if made) be drawn up (as the Master of the Rolls shall direct) on reading such affi- Solicitors. 815 davits, and an affidavit o( such copies having been left, and notices given in Compliance with [the] order : (Rules of 2nd Nov. 1875.) Upon an application to dispense' with the required notice of intention to take out or renew a certificate, a summons shall be served on the Registrar of Solicitors, calling on him to show cause within ten days why such taMng out or renewal of certificate should not be allowed ; and if no cause be shown to the satisfaction of the Master of the RoUs, he may, if he shaU. think proper, make an order for allowing such certificate to be issued: {Id.) An application to dispense with any rule, or rules, as to any .... taking out or renewal of certificates shall be made to the Master of the Rolls in such manner as he shall from time to time direct : (Rules of 2nd Nov. 1875.) 6. Appeal feom Refusal of Certificate. In case the Registrar shjll decline to issue [a] certificate , . . . thp party .... applying for the same .... shall and may apply to the Master of the Rolls, who [may] make such order in the matter as shall be just, and .... order payment of costs by and to either of the parties, if [he] shall think fit : (6 & 7 Yict. c. 78, s. 24.) in. RETAINER AND AUTHORITY. 1. How SoiiiciTOE Retained. Before the name of any person shall be used in any suit to be instituted in the .... court, as next friend of any infant, married woman, or other party, or as relator in any information, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the [writ] : (15 & 16 Vict. c. 86, s. 11.) This section does not apply to petitions : [Be Gartwright, 8 W. R. 492.) Save as above, a solicitor can be appointed by parol, but it is at his own risk : (Cord. 47.) A general authority to act as solicitor does not justify the commence- ment of proceedings : (Seton, 636.) A country solicitor authorised to commence proceedings may appoint a town agent : (Cord. 48, citing Solley v. Wood, 16 Beav. 370.) , A suit may be defended by a solicitor under a merely general authority : (Seton, 636 ; Dan. 260, 456 ; Eein/rich v. Sutton, L. Rep. 6 Oh. App. 220.) A retainer may be implied, as by the receipt of a fund out of court produced by an action : ^Oord. 47 ; Allen v. Bone, 4 Beav. 493.) But, if the authority is disputed, it is for the solicitor to prove it : (Allemr. Bone, sup. ; Bird v. Barris, W. N. 1880, p. 166; 70 L. T. 25.) The mere fact that the plaintiff knows that he has been made co-plaintiff, and has taken no active steps to have his name withdrawn, wfll not amount to acquiescence {Sail v. Laver, 1 Hare, 571) ; nor does payment into court in an action on a soUoitor's bUl admit retainer, so as to charge the defendant beyond the amount paid in : (Cord. 48.) An authority to sue in the name of another under a power of attorney includes the appointment of a solicitor : (Cord. 49.) A next friend of a married woman must act by a solicitor : {Swarm v. Swann, 43 L. T. Rep. N. S. 530.) 2. Commencing Pboceedings wiTHon Atjthoeitt. Where a solicitor has commenced an action in the name of a plaintiff without authority, the plaintiff should serve notice of motion on the defendant, and on the solicitor, that the action may be dismissed, and that the solicitor may pay the costs of the plaintiff as between, solicitor and client, and of the defendant as between party and party : {Newbiggin-by- 816 Solicitorg. the-Sea Gas Commany v. Armstrong, L. Rep. 13 Oh. Div. 310 ; 41 L. T. Rep. N. S. 637 ; 49 L. J. 231, Oh. ; 28 W. R. 217.) , For the form of order, see Nurse v. Bwrnford, L. Rep. 13 Oh. Div. 768 ; 41 L. T. Rep. N. S. 611 ; 49 L. J. 229, Oh. A defendant may object that the action is brought without the anthority of the nominal plaintiff : (see cases cited in Tv/rquand v. Fea/ron, L. Rep. 4 Q. B. Div. 282.) 3. Joint ok Seveeal. Each of several defendants employing one solicitor may on his retainer be liable for his own costs only, or all or several may be liable jointly, or one may have made himself liable for his own and another party's costs. If the liability be several the solicitor must charge against the client all the work he does for bii^ severally, and his proportion of the several charges which are applicable to him and others. But if the liability be joint, the solicitor makes out one joint bill against all the clients, and his proceedings must be against them jointly : (see the taxing master's certificate in Be Colguhown, X> D. M. & G. 35.) Where several defendants retain the same solicitor, unless a joint retainer is shown, each of them can only be charged with his jproportion of the general costs of the proceedings taken on bfehalf of all : {Me Colmhpun, sv/p.) Where two executors jointly retain a solicitor each is liable for all the costs, but is entitled to repayment out of the estate: {Watson, \. Row, L. Rep. 18 Eq. 680.) As to what amounts to a joint, and what to a separate, retainer, see Watson V. Bow, swp. ; Be Allen, L. Rep. 11 Oh. Div. 244. Separate liabilifrv for costs must be set up by the clients at the trial, and cannot be raised for the first time on taxation : {Burridge v. Bellew, 32 L. T. Rep. N. S. 807.) 4. Retainee by Liquidatob. The solicitor appointed by an official liquidator has no claim on him personally for winding-up costs, though the liquidator has obtained an order for taxation and payment by himself : [Ex parte Watkin, L. Rep. 1 Oh. Div. 130.) When the liquidator has been ordered to pay costs but of the assets, they are payable in priority to costs of windmg-up : {Be Home Invest- ment Society, L. Rep. 14 Oh. Div. 167.) IV. OHANGING SOLIOITOR. A party suing or defending by a solicitor shall not be at liberty to change his solicitor in any cause or matter without an order of the court for that purpose, which may be obtained by motion or petition as of course ; and until such order is obtained and served, and notice thereof given to the [Master of the Supreme Oourt], the former solicitor shall be considered the solicitor of the party : (0. O. 3, r. 3.) Special orders are necessary in the case of special circumstances ; (Oord. 65-6.) Where the solicitor in a cause had been appointed by deed between the party and the solicitor, an order of course to change the solicitor was discharged with costs : {Jenkins v. Bryamt, 3 Drew. 70, cited Janu. 950.) An order is irregular if obtained by one or more of several co-plaintifEs, who have jointly retained a solicitor : (Wms. Pet. 223.) The order does not give to the solicitor a right to insist, as against his client, upon acting in the cause until removed by the order of the court : {W(wd V. Swift, 6 Hare, 309.) Solicitors. 81 7 This order is necessary when the solicitor enters into partnership, if the name of the new partner is intended to he used (Muttlehury v. Haywood, 8 Jnr. 1085) ; or where a solicitor desires to change his London agent (Dan. 1723) but not upon the death of a solicitor in a cause: (Whalley v. Whalley, 22 L. J. 632 ; 17 Jur. 264.) A defendant to whose separate account a sum of money has be^n carried may, without order, petition for its payment out of court by a solicitor who was not his soUoitor in the cause: [Waddilove v. Taylor, 12 Jur. 598, cited Jarm. 950.) An order is not necessary when a solicitor enters into partnership subse- quently to his appointment as solicitor to the party (Wms. Pet. 221-2) ; or where a party sues or defends in person and afterwards appoints a solicitor : (Dan. 1725.) Where there has been a change of solicitors without order, service' upon the old solicitors is regular : {Wright v. King, 9 Beav. 161 ; David- son y. Leslie, Id. 104 ; Griee v. Grice, 32 L. J. 134, P. & M.) In the case of death notice of the new appointment should be given to the other parties, and at the Central Office : (Dan. 1725.) If no new solicitor is appointed, and the party does not obtain an order to sue in person, the other parties may sue out a subpcena to name a new solicitor : (Cord. 65.) The form of subpoena is given in Sched. E. 5 to the Consolidated Orders: Where a defendant's solicitor died, and the plaintiff obtained an order that he might name a new one, which he failed to do, the court directed the accoxmts to be taken in Ms absence : {Deam v. Lethbridge, 26 Beav. 397.) The representatives of a deceased plaintifE or any new plaintifE need not employ the former solicitor, and no order to appoint a new one is neces- sary, but notice of the appointment must be given to the other parties, and at the central office : (Dan. 1725.) The order for changing a solicitor contains no provision as to the payment of the solicitor's costs : [Qrawt v. Holland, L. Rep. 3 0. P. Div. 180 ; and see post, Y., 7.) , V. COSTS. 1. Geneeai Rtjies. [See Costs.] 2. SfECIAI. AaBEEMENIS. (a) Power to Make. A . . . . solicitor may mate an agreement in writing with his client respecting the amount and maimer of payment for the whole or any part of any past or future services, fees, charges, or disbursements in respect of business done or to be done by such .... solicitor, whether as ... . solicitor or as an advocate or conveyancer, either by a gross sum, or by commission or percentage, or by salary or otherwise, and either at the same, or a greater, or at a fess rate as or than the rate at which he would otherwise be entitled to be remunerated, subject to the provisions and con- ditions in this part of this Act contained : (33 & 34 Vict. c. 28, s. 4.) In the construction of [the] Act, unless where the context otherwise requires " Person " includes a corporation ; [and] " Client " includes any person who, as a principal, or on behalf of another person, retains or employs, or is about to retain or employ, a solicitor, and any person who is or may be liable to pay the bUl of a solicitor for any services, fees, costs, charges, or disbursements : (33 & 34 Vict. c. 28, s. 3.) G rges, and expenses is barred by any Statute of Limitations : (Id.) (2)' Over what Property. The section extends to real and personal property of all kinds, corporeal and incorporeal (Foxon v. Gascoigne, L. Rep. 9 On. App. 654) ; including a chose in action : (Birchall v. Pugin, L. Rep. 10,0. P. 397.) The section does not extend to an easement : (Foteon v. Gascoigne, sv/p.) The particular property recovered or preserved only can be charged (Ex parte Thompson, 3 L. T. Rep. N. S. 317) ; but it is immaterial that the client who employed the solicitor is net the beneficial owner of the whole property, and the charge will not affect the partial interest only, but the whole property recovered : (Bulley v. Bulley, L. Rep. 8 Oh. Div. 479.) Where the person who employed the solicitor was one of four persons who took as tenants in common in tail with cross remainders over, and died before the order was made, the solicitor was held not entitled to a; charge on any part of the estate : (Berrie v. Howitt, L. Rep. 9 Eq. 1 ; not approved in Bulley v. Bulley, sup.) (3) What is Recovery or Preservation P The following have been held to be " recovery : " Ordinary foreclosure decree ( Wilson v. Rov/nd, 4 Giff . 416 ; 9 L. T. Rep. N. S. 675) ; Appointment of receiver adversely, or by consent, though the action was afterwards compromised (Twynam v. Porter, L. Rep. 11 Eq. 181 ; Bailey v. Birchall, 2 H. & M. 371) ; Order under Declaration of Titles Act (Pritchwrd v. Boierts, L. Rep. 17 Eq. 222) ; Judgment in an action for detinue, though the proceeds of the goods were not recovered in the action, but afterwards paid into court in an administration action (Cailow v. Catlow, L. Rep. 2 0. P. Div. 362); Successful action against an incumbrancer whose incumbrance was valueless, but, before action, was a cloud on the plaintiff's title (Jones v> Frost, L. Rep. 7 Oh. App. 773) ; Recovery of land in ejectment (Ex parte Seamam,, 10 Jur. KT. S. 593); Proceedings under which the property was managed and retained (Baile v. Baile, L. Rep. 13 Eq. 497.) Where the ordinary decree was made in an administration action against a trustee, and an order appointing new trustees was made, and afterwards no further proceedings were taken except by bringing in some accounts under the decree, it was held that no property had been recovered : (Pinherton v. Fasten', L. Rep. 16 Eq. 490.) 824 Solicitors. The following have been held to be " preservation : " Establishing a defendant's rights in a foreclosure action, whereby the chance of foreclosure was lessened [Soholefield v. Lockwood, L. Rep. 7 Eq. 83) ; Judgment in an administration action, though adverse to the client {Srmth v. Wimter, 18 W. B. 447) ; Judgment dismissing with costs action to set aside post-nnptial settlement : {Be Keome, L. Rep. 12 Eq. 115.) Successfully resisting a mandatory injimction in a light and air case is not preservation : {Foxon v. Gascoigne, svp.) (4) Tor what Costs. The costs must have been recovered in the particular proceedings in which the property was recovered or preserved (Lucas v. Peacock, 9 Beav. 177) ; except as between the town agent and the country solicitor : (Lcmirence v. Fischer, inf.) (6) Application. (1) By whom made. Where costs have been ordered to be paid to a solicitor personally out of a fund in court, he cannot afterwards obtain a charging order {Be Viney, 18 L. T. Rep. Jl. S. 321) ; unless he has been (Uscharged from being solicitor : {Pilcher r. Arden, Be Brook, L. Rep. 7 Ch. Div. 318; 38 L. T. Rep. N". S. Ill ; 47 L. J. 479, Ch. ; 26 W. R. 273.) The application may be made by the legal personal representatives of the solicitor {Baile v. Baile, L. Rep. 13 Bq. 497) ; or by a London agent in respect of an unascertained balance due to him by the country solicitor : {TarS'ew v. Sowell, 5 L. T. Rep. N. S. 276 ; 3 Gift. 381.) And, so far as the country solicitor is concerned, the lien is general, and not confined to the costs in the proceedings in which the property has been recovered or preserved: {Lawrence v. Fletcher, L. Rep. 12 Ch. Div. 858 ; 41 L. T. Rep. N. S. 207.) It is immaterial that the solicitor has been discharged from being solicitor in the cause : {Pilcher v. Arden, svp.) (2) Against whom, made. An order may be made against a married woman's separate estate, though settled without power of anticipation : {Be Keane, L. Rep. 12 Eq. 115.) A charge cannot be obtained against the property of am infant during his infancy, but may, on his coming of age, if he has adopted the action : {Baile v. Baile, svp. ; Bonser v. Bradshaw, 4 GifB. 260.) In the meantime an action for declaration of a Hen may be sustained : {Pritchard v. Boberts, L. Rep. 17 Eq. 222.) The Act gives a charge on the property preserved, irrespective of any question as to who is the owner of it, and the fact that the client by whom" the solicitor was retained is not the beneficial owner of the whole property is immaterial. Therefore, where a solicitor has been retained by a person interested in an estate, as to two-fifths in his own righill, and as to three- fifths as a trustee for others, and the whole estate has been preserved, the court will make an order under this statute, as against the oestwis que trustent charging the whole property preserved ; and this charge wiU not be incumbered or affected with any equities that may exist between such trustee and his cestv/is que trustent, even though the trustee were a defaulting trustee or banJirupt : {Bulley v. Bulley, L. Rep. 8 Ch. Div.- 479 ; but see Berrie v. Sowitt, svp.) (3) In what Division made. The application must be made to the division in which the action is Solicitors. - • 825 pending: (JJe FidcCey, Eeinrich v. Sutton, L. Rep. 6 Oh. App. 865; Siggs y. Sohrader, L. Rep. 3 0. P. Div. 252 ; 47 L. J. 267, Oh. : 26 W. B,. 831.) Where am action commenced in the Chancery Division has been tripd before a judge and jury, tie trying judge alone can make the order : {Owen Y. Henshaw, L. Rep. 7 Oh. Div. 885; 47 L. J. 426, 0. P. ; 26 W. R. 831; but see Be Seaman, Wilson v. Hood, 3 H. & 0. 148; Catlow V. Catlow, L. Rep. 2 0. P. Div. 362.) (4) When made. The order maybe made notwithstanding the client has died and his estate is the subject of an administration action : {Be Seaman, Wilson v. Hood, sup.) It is no objection that the suit is no longer pending, although abso- lutely dismissed, or has never come to a hearing, or the property has been sold before the application : (Jones v. Frost, L. Rep. 7 Oh. App. 773 ; Be Fiddey, sup.) As to the statute of limitation, see svp. {a) (1) (5) How made. The application may be by petition, motion, or summons : (Oord. 233.) The proceedings are genersdly entitled in the action and in the matter of the solicitor : {Id.) They need not be entitled either in the matter of the Act or of the solicitor: {Hamer v. Giles, L. Rep. 11 Oh. Div. 942 ; 41 L. T. Rep. N. S. 270 ; 48 L. J. 508, Oh. ; 27 W. R. 834.) The application for an order upon the interest of a party to an action in a fund in Oourt, is properly made by a petition in the action : {Brown v. Trotman, L. Rep. 12 Oh. Div. 880; 41 L. T. Rep. N. S. 179; 48 L. J. 862, Oh. ; 28 W. B. 164.) The application is usuaJty made by petition {Twynam, v. Porter, L. Rep. 11 Eq. 181) ; but an order has recently been made on summons : {Hamer v. Giles, sup.) It has recently been held to be improper to serve the other parties to the action : {Brown v. Trotman, sup., but see Be Keane, sup.) (c) Order. (i) Form. The following form of order is given in Sched. H. 27 to the Rules of April, 1880 :— In the High Court of Justice. Division. 18 No. . Judge in Chambers. Between Plaintiff, and Defendant. TTpon hearing , and upon reading the affidavit of filed the day of 18 , and , It is ordered that the said the solicitor for the in this action shall have a charge upon for his costs, charges, and expenses of and in reference to this action. Dated the day of 18 . (And see Seton, 643 et seq.) The charging order ought not to direct a sale, but should contain a direction that either party may be at liberty to apply to the judge with reference to enforcing the charge by sale or otherwise : {PUeh&r v. Arden; Be Brook, L. Rep. 7 Oh. Div. 318 ; 38 L. T. Rep. N. S. Ill ; 47 L. J. 479, Oh. ; 26 W. R. 273.) 826 Solicitom. I (2) Effect. See the words of the section, »wg. 1 (o). The lien is binding against tlie client's trustee in hahkruptoy, and is a first charge on assets recovered for ajl administratrix : (Cord. 230.) Where an action was brought against a building society and' two other defendants, ia which the plaintifE claimed certain money standing in the name of one of the defendants in the books of the society, and, the defen- dants having obtained judgment in their favour, th& solicitor of the two defendants presented a petition for a charging order on the fund, this was opposed by the bunding society on the ground that they had a lien on the . fund for their costs, it was held, that the building society was in the position of debtor to one of the other defendants, and not of trustee, and consequently had no lien on the fund for their costs : [porter v. West, 43 L. T. Bep. N. S. 569.) Where there is a fund in court, the Hen, independently of the statute and without any declaration, is an absolute first charge", and has priority over any other assignment or charging order obtained with or without notice, and with or without the solicitor's knowledge : {Haymes v. Cooper, 33 Beav. 431 ; Oord. 230 ; Pileher v. Arden, swp.) Where in an administration action the costs were ordered to be paid out to the plaintiff's solicitor out of a specified fund in court, and afterwards the plaintiff changed his solioitor', the former solicitor was held entitled to a charge on the interest of his former client in the funds in court gene- rally, notwithstanding an assignment of which the solioitor had notice : {Pilehe'r\. Arden, sup.) Where the fund is in court, the solicitor need not give notice of his charge to a person about to take an assignment of the property : {FaithfuM V. Ewen, L. Rep. 7 Oh. Div. 495; 37 L. T. Rep. N. S. 805 ; 47 L. J. 457, Ch. ; 26 W. R. 270 ; foUowed in 8tm>pey v. Orey, inf.) Solicitors who act for a plaintifTin an action in which he recovers damages are entitled to a charge or lien upon such damages for their costs in the action as against a judgment creditor of the plaintiff who has obtained an eaj jparfe garnishee order before such costs have been taxed, and served it : {SUppey v. Grey, 42 L. T. Rep. BT. S. 672; 49 L. J. 524, Q. B. ; 28 W. B. 877.) When a judgment creditor of the defendant in a partnership action obtained a garnishee order nisi to attach all moneys in the hands of the receiver in the action appearing to be due to the defendant on taking the accounts, and on the following day, before service of the order nisi, the defendant's solicitors obtained, on a summons served on the receiver, a charging order intituled in the action, declaring that they were entitled to a charge for their costs upon all moneys coming to the defendant under the stction, and on the next day the garnishee order nisi was served on the receiver, and was subsequently made absolute — ^it was held that the soli- citors were entitled to their costs in priority to the claim of the creditor under the garnishee order both under the Act and iMependently of it : (Samer v. Giles, sup. ; see also Birchall v. Pugin, L. Rep. 10 0. P. 397; 32 L: T. Rep. N. S. 496 ; The Leader, L. Rep. 2 A. & B. 314.) A solicitor who has obtained a charging order is not entitled to appear in the subsequent proceedings, except at his own expense : (Mildmay v. Qidche, L. Rep. 6 Oh. Div. 553, 556.) If the solicitor, subsequently to a charging order, obtains a stop order, he has to pay the costs : (Id.) 8. Reviving Suit foe Costs. Whenever any decree or order shall have been made for payment of costs in any suit, and such suit shall afterwards become abated, it shall be Solicitors. 827 lawful for any person interested under such decree or order to revive such suit, and thereupon to prosecute and enforce such decree or order, and so on from time to time as often as any such abatement shall happen : (33 & 34 Vict. c. 28, s. 19.) 9. Rbcoteet. (a) In General. [See OoSTS, V., VII.] (fe) By Uncertificated Solicitor or his Client. No costs, fee, reward, or disbursement on account of or in relation to any act or proceeding done or taken by any person who acts as a solicitor) without being duly qualified so to act, shaJl be recoverable in any action, suit, or matter, by any person or persons whomsoever : (37 & 38 Vict. A person shall be deemed to be duly qualified .... if he shall have in force at the time at which he acts as a solicitor a duly stamped certificate authorising him so to do .... or shall have been appointed to be solicitor of the Treasury, Customs, Ireland Revenue, Post-ofl5ce, or any other branch of Her Majesty's Revenues, or of any public department, including the department of the Ecclesiastical Commissioners, and of the Governors of Queen Anne's Bounty, or if he be a clerk or officer appointed to act for the solicitor for any public department as [above described] : {Id.) The successful party in a legal proceeding cannot, where the solieitor employed by bim was uncertificated, recover his costs and disbursements from the par^ otherwise liable : (Fowler v. Monmouthshire Canal Oonupany,, L. Rep. 4 Q. B. Div. 334.) 10. Payment bt Solicitoe. The court has no jurisdiction to make a solicitor pay the costs of an action rendered necessary by his having blundered : (ClarTc v. Girdwood, L. Rep. 7 Ch. Div. 23 ; 37 L. T. Rep. N". S. 614 ; 47 L. J. 116, Ch.) The court disapproves of the practice of joining solicitors, not primarily liable, as parties, to make them liable for costs : (Barnes v. Addy, L. Rep. 9 Ch. App. 244.) VI. PAYMENT OP MONET AOT) DELIVERY OP PAPERS. 1. JXTEISDICTION. As to solicitors being officers of the Supreme Court and amenable as such to its jurisdiction, see sup., I., 2. It shall be lawful for [the court or a judge] in the same cases in which they are authorised to refer a biQ (see Costs, V.)] to make such order for the delivery by any .... solicitor, or the executor, administrator, or assignee of any .... solicitor of such bill .... and for the delivery up of deeds, documents, or papers in his possession, custody, or power, or otherwise touching the same, in the same manner as has heretofore been done as regards such .... solicitor by [the] courts and judges re- spectively when any such business has been transacted in the court in which such order was made : (6 & 7 Vict. c. 73, s. 37.) It is discretionary in the court whether or not to add the order as to delivering up papers : [Ex parte Jarrman, L. Rep. 4 Ch. Div. 885.) Where subsequent costs have been properly incurred the ordet for taxation wiU be amended so as to include both bills : {Id) In such a case the order ought to omit the order for delivery of papers : The court vrill, before the completion of a taxation, order the delivery up of papers, either on payment into court of the amount claimed, or on 828 SoUoitors. se6nrity being given for payment, or in case it appears from the solicitor's own account that a balance is due from him to his client : (Morg. & Oh. 12; BepuhUo of Costa Bica v. Erlamger, W. N. 1879, p. 7.) If the solicitor has a lien, documents WiU be orderea to be delivered to a new solicitor on an undertaJdng to return them : (Morg. & Oh. 13.) An undertaking to produce the papers for taxation may be required : {B^vhlic of Costa Biea v. Mrlanger, «wp.) Independently of the statute, the court will on payment by the client of what is dtie to the solicitor, summarily order the latter to deliver up deeds and papers though no cause be pending, or pay over moneys received for the client, Aether the solicitor is on the roll or not at the date of the application : (Oord. 132.) But the order wiU not be made to the prejudice- of a solicitor's lien, or where the order would cause him to commit a contempt of court : (Cord. 133.) 2. Application. (a) By whom made. The relation of solicitor and client must exist between the solicitor and the applicant : (See cases cited Oord. 133-4.) (6) Agai/nst whom made. The order may be maide against all the partners of a firm severally where the money has constructively come iuto the hands of the firm, but not when it is only proved to have reached the hands of one member to *hom the conduct was confined ; and the client cannot apply summarily against the town-agent (in the absence of fraud), or against the solicitor's trustee in bankruptcy or personal representative : (Oord. 135.) But under the statute it is different : (see sv/p. 1.) (o) Sow made. The application is by motion, after notice, supported by affidavits alleging the retainer and that the act was done under it : (Oord. 136.) The papers must be entitled in the action, if any, and in the matter of the solicitor : (Id.) Aj3 to an application under the statute, see sv/p. 1. (d) How Order enforced. The order is enforceable by attachment, whether for payment or delivery : (Oord. 136 ; Execution, XII. 1 (i) ; XX.) An order under the statute may be so enforced : {Ex parte Belton, 25 Beav. 368; Be Bowen, 11 W. R. 607.) Vn. ENPORCBSTG UNDERTAKniTG. The court will summarily enforce undertakings given by a solicitor in that character, whether given in an action or not : (Cord. 136.) The application can be made to any judge of the High Court, but if given in an action, it should be made to the division of the High Court, or in the other court, in which the action is pending : (Oord. 138.) The application must be supported by affidavit setting out the under- taking and such other facts as wiU enable the court to interfere : (Id.) The order wiU be for an attachment. As to breach of undertaking to appear, see Appbaeance, XIV. If the undertaking is to pay money, an order for payment must be ob- tained before an attachment is applied for : (see Execution, XII., XX.) VIII. DISCLOSURE AS TO WRIT. Every solicitor whose name shall be indorsed on any writ of summons shall, on demand ia writing made by or on behalf of any defendant Solicitors — 8agree that the same be heard before a Divisional Court : (39 & 40 Vict. c. 59, s. 17 ; O. LVIIa., r. 1, Dec, 1876.) Upon the argument of such case the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial : (O. XXXIV., r. 1.) Special Gase — •Specific Performance. 833 As to the power of the court to decline to decide the questions raised by a special case, see Bright v. Tyndall, L. Eep. 4 Oh. Div. 189. X. JUDGMENT. [See sttp.. III. ; and Judgment.] It is proper, when au appeal is contemplated from a decision upon a special case in au action, and when the answers to the questions in effect decide the action, that the answers should be recorded in the form of declarations, and the action be set down pro forma on motion for judgment : {Sarrison t. The Cornwall Minerals Railway Gompam/y, L. Rep. 16 Oh. Div. 66 ; 43 L. T. Rep. N. S. 496.) And motion for judgment seems to be always necessary, unless there has been an agreement as mentioned, sup., III. XI. EXEOUTION. [See sup., m. ; and BxEcrTiON.] Xn. APPEAL. An appeal lies from an order of a judge directing a special case (Metropolitan Board of Works v. New River Company, L. Rep. 2 Q. B. Div. 67); and from a decision on a special case: (Curmnins v. Fletcher, L. Rep. 14 Oh. Div. 699.) Xin. OOSTS. [See sup., in. ; and Costs.] [See also sup., II. (a).] SPECIAL JURY. [See Tkiai.] SPECIFIC PERFORMANCE. I. JUElSDICTION. 1. Specially Assigned. 2. DiSCEETION.' 3. ENFOBCiNa Past. 4. ASEEEMBNTS AS TO PeBBONALTT. 5. Inadequacy or Damages and Ability to Enpobcb Judg- ment. - 6. Mutuality op Eemedy. 7. Effect of Want op Title. 8. Mistake. 9. Eepect op Delay. 10. Damages in LiEtr op Specific Pebpoemancb. n. PARTIES, in. WEIT OP SUMMONS. rV. PLEADING. V. PEELIMINAET EEFEEENCE AS TO TITLE. 1. POWEB TO OBDBB. 2. Duty op Vendoe. 3. Whebb Eepeeence Obdeeed. 4. What Inquibies Made. 5. Incidental Dibections. VI. DISMISSAL FOB WANT OP PEOSECUTION. H H H 834 Specific Performance. Vn. OEDEEING PURCHASE MONET INTO COTTBT. Vm. OEIGINAl JUDGMENT. 1. Whekb Conteact Disputed. 2. Whbre Title only in Question. 3. Atteb FKeliuinAby Kefebence. 4. Fob Dauaqes [see swp. I., 10.] ' IX. PEOCEEDINGS ON EEPBEENCE AS TO TITLE. 1. DiEECTiNG Abstract, &c., to be BsotraET in. 2. Discussion of Title. 3. CoNVEYANcma Counsel. 4. Certificate. (a) Makmg. (d) Rememvng. X. PXTRTHEE CONSIDERATION. 1. Generally. 2. Payment by Instalments. 3. Interest and Rents and Profits. 4. DEPOsrr. XI. PEOCEEDINGS ON FUETHEE ORDER. Xn. HOW JUDGMENT ENFORCED. Xni. COSTS. I. JURISDICTION. 1. Specially Assigned. AH causes and matters for ..... the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases [are assigned to the Chancery Di-vision] : (J. A. 1873, s. 34.) Where in am action, relating to land or a contract in respect of the same land brought in a common law division, the defendant sets up a counterclaim for ^ecific performance of a contract, the action will be transferred to the Chancery Division {Sill/man v. Mayhew, L. Rep. 1 Ex. Div. 132 ; Sollowwy v. York, L. Rep. 2 Ex. Div. 333) ; but where the specific performance connterclaimed for was of an agreement relating to other land than that which was the subject of the action, a transfer was refused: {8toreyx. Waddle, L. Rep. 4 Q. B. Div. 289.) 2. DiSCEETIGN. The exercise of the jurisdiction is not a matter of right in the party seeking relief, but of discretion in the court (Lamare v. Dixon, L. Rep. 6 E. & I. App. 414) ; to be exercised, not arbitrarily, but according to fixed rules : (Dart, 5th edit., 994.) Specific performance of an agreement relating to lands out of the jurisdiction may be ordered, where the paarties are within the jurisdiction : (see Perm v. Lord Baltimore, 2 W. & T., L, C. 923, and notes.) 3. Enpoecijstg Paet. Where cont^mporaIleous agreements or part of one agreement are held t6 be separable and not to constitute a single arrangement, specific performance may be ordered of one of them, although the remainder may be incapable of being enforced, or may not have been performed by the plaintitE : (Seton, 1296.) 4. Ageeements as to Peesonalty. The jurisdiction is only exercised where damages would not be an adequate compensation or are incapable of proper assessment : (see the cases cited Dart, ,5th edit., 985 ; Seton, 1287-8. 5. Inadequacy of Damages and Ability to Enfobce Judgment. The court will only interfere where from the nature of the subject Specific Performance. 835 matter there is no adequate relief in damages for breach of the agree- ment, and it can superintend and enforce the execution of the judgment (Seton, 1286 et seq.), but in the case of land the purchaser's ri^t to sue can seldom if ever be questioned on this ground : (Dart, 5th edit., 6. MuTrrALiTT of Remedy. The vendor's right to relief rests generally on the principle of mutuality : (Dart. 5th edit., 987-8.) .Agreements which at the time they are made are binding on one party only will not be enforced for want of mutuality, e.g., an infant cannot sue : (Seton, 1291.) The mere fact that the agreement is signed by the defendant only, does not cause a want of mutuality : (Id.) 7. EffeciI of Want of Title. Lord St. Leonards considifered it doubtful whether in any case a man, knowing himself not to have any title has been allowed to enforce the contract by procuring a title before the inquiries as to title have been completed : (Dart, 1057.) But specific performance has been decreed at the suit of a vendor, where (1) he contracted under the bond fide belief that he could make a title, and, on discovering that he had no title, procured the concurrence of the necessary parties; (2) where at the time of a contract to sell the fee simple, the vendor knew that he had a less interest, but relied on obtaining the remaindermen's concurrence; (3) where the vendor has contracted to sell under the bona fide belief that he is absolutely entitled, having only a partial interest, but becoming ultimately able to complete : (Dart, 1057-8.) It is sufficient if the vendor has a good title at the hearing, except where time is of the essence of the contract, or where the defects are such as to affect the validity of the agreement, in which case they must be cured before the commericement of the suit, or before the repudiation of the agreement by the purchaser, unless the purchaser, instead of repudiating, treats the defects as matters of title only. So, too, the title may be m^e before the certificate : (Seton, 1302.) A good title is first shown when the matters are duly set out in the .abstract, and is made when they are proved : (Seton, 1302.) As a general rule, a vendor mU be compelled to convey his interest, if an imperfect one in the estate, if the purchaser choose to accept it without compensation : (Dart, 1063.) He wiU be compelled to make good the contract out of any interest which he has subsequently acquired; or to procure the concurrence of Earties who are bound to convey at his request : {Id. ; Willmott v. Bmrber, ,. Rep. 15 Ch. Div. 96 ; 43 L. T. Rep. N. S. 95 ; 28 W. R. 911.) A vendor, professing to sell an unincumbered estate, but having only mi equity of^ redemption, wiU generally be compelled to redeem the mortgage, and obtain a conveyance from the mortgagee : (Dart, 1063.) Want of title to the entire interest contracted for is not a defence for the vendor, if the purchaser elects to take such estate as the vendor can convey, or to dispense with the concurrence of a person having a partial interest, upon being allowed an abatement from his purchase money : (Dart, 1087.) ...... Want of title to a considerable part of the estate is not necessanly a reason why the vendor should not convey the residue : {Id. ; and see Hooper ^. Smart, L. Rep. 18 Eq. 683; Barker v. Cox, L. Rep. 4 Ch. Div. 464.) H H H 2 836 Specific Performance. A purchaser cannot claim to take with an abatement in respect of an imperfection in title : (Dart, 1068.) The court will not compel a defendant specifically to perform an agree- ment when the result would be to compel him to commit a breach of a prior agreement with another person : {WiWmott v. Barber, svp.) An agent purchasing may tsu£e any objection which his principal might, in respect of the circumstances of his adjoining property, if the ostensible as well as the real owner : (Be Arnold ; Arnold v. Arnold, L. Bep. 14 Oh. Div. 270 ; 42 L. T. Rep. N. S. 705 ; 28 W. R. 635.) 8. Mistake. The only cases in which relief will be granted to a purchaser on the ground of mistake, are those where the purchaser has been bona fide misled as to the nature or extent of that which he was buying ; and the conduct of the vendors has been such as to put him off his guard and to contribute to the mistake : {Tam/pli/n v. Jwmes, L. Rep. 15 Oh. Div. 215 ; 43 L. T. Rep. N. S. 520.) 9. Effect op Delay. The right to relief may be lost by delay : (see cases cited Seton, 1295 ; Windle v. Steiphens, 70 L. T. 25.) . ! 10. Damages in Lieit of Specific Pebfoemancb. The High Court of Justice and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act, in every cause or ma/tter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms "and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may be 'ompletely and finally determined, and all multiplicity of legal proceedings onceming any of such matters avoided : (J. A., 1873, s. 24, sub-s. 7.) In all cases in which the [Chancery Division] has jurisdiction to entertain an application .... for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same court, h it shall think fit, to award damages to the party injured, either in addition to or in substitution for such .... specific performance, and such damages may be assessed in such manner as the court shall direct: (21 & 22 Vict. c. 27, s. 2.) This section still applies : (see cases cited Injunction, YI.) Where specific performance is refused on the ground of mistake by the defendfmt, so that under the old practice a bUl f or specific performance would have been dismissed without prejudice to an action, the court will ?roceed to consider the question of damages : (TarrvpUn v. Jamet, L. Rep. 5 Ch. Div. 215; 43 L. T. Rep. N. S. 520.) Where an action is brought for specific performance, and specific performance is refused on the sole ground of a mistake by the defendant, the court ought to give the same damages as would, under the old practice, have be6n given in an action at law: (Per James, L.J., Tam/plin v. James, sup.) For form of order where damages are given in addition to specific performance, see Seton, 1285. For form of order where damages are given in the alternative, see Seton, 1319. Jessel, M.R., has directed the damages to be ascertained by an of&cial referee : (Stafford v. Coxon, W. N. 1877, p. 138; 25 W. R. 788.) Specific Performance. 837 II. PARTIES. In general it is only necessary to make those persons parties who were parties to the contract ; e.g., a purchaser cannot join as co-defendant the receivers or stewards of the owners of the estate, although they are in that capacity possessed of the title deeds, delivery of which is sought by the suit : (Dart, 5th edit. 1004-5 ; but see Parties, II., 2.) If the contract were entered iato by an agent, and were under seal, the other party may insist upon the agent being included in any suit for specific performance by the principal : (Dart, 1007.) If the contract be not under seal, if the agency be not apparent on the contract, the nominal contractor should (unless the plaintiff can prove the agency) be made a party, as a defendant, to bind his apparent interest, and the persons beneficially interested must also be made parties : (Id.) An auctioneer is sometimes made a co-plaintifE with the vendor, upon the ground of his having an interest in the contract or of his liability to an action for deposit ; but, if the agent has or claims no interest in the contract or the subject matter thereof, and is under no liability in respect of the contract, he is not a proper party, and probably he is not a proper party as a defendant in respect of supposed liability for damages or deposit : (Dart. 1007-8.) _ ' When the deposit remains in the hands of the auctioneers, the practice ' is to apply for payment into court, and make them defendants if they refuse ; but if it is a large sxun they may properly be made defendants in the first instance : [Earl of Egmont v. Smith, L. Kep. 6 Oh. Div. 469.) If the vendor die before completion, his person^ representatives are prima facie the proper plaintiffs : (Dart, 1008,) Unless the plamtiffs have power to convey the vendor's interest in the estate, the person in whom the same is vested, or who has power to convey it, must also be made a party : (Id.) If they are devisees, or if the executors are empowered to seU, the heir is not a necessary party, unless there is reasonable ground for disputing the will : (Id.) The personal representatives of the vendor and the persons who have power to convey his estate, are proper parties to a purchaser's action : (Dart., 1009.) If the vendor has assigned his interest under the contract, the assignee or his personal representative must be a party : (Id.) If the vendor has, subsequently to the contract, aliened or incumbered the property, the alienees or incumbrancers, if they took with notice, may be made defendants : (Id.) If the purchaser die before completion, his heir or devisee (if the estate , be one of inheritance) must sue, making the personal representatives parties if he seek payment of the purchase money out of the purchaser's per- sonalty : (Dart, 1010-1.) If the action is commenced by the vendor, the heir or devisee of the purchaser must be made a party, and also the purchaser's personal repre- sentatives : (Dart, 1011.) If the purchaser has assigned the benefit of the contract, the suit against the vendor should be by the assignee, making the purchaser a defendant : But if the purchaser merely enters into an ordinary agreement for a sub-sale, agreeing himself to convey, and not that the original vendor shall convey, the sub-purchaser is not, generally, a necessary party : (Id.) Where the purchaser's assignee has been accepted in his place by the vendor, the original purchaser should not be made a party to the vendor's suit: (Id.) 838 Specific Performance. in. WRIT OF SUMMONS. The following form of indorsement is given — The plaintiff's claim is for specific peTformance of an agreement dated the day of , for, the sale by the plaintiff to the defendant of certain [freeholcQ hereditaments at (Eiiles of 1875, App. A. p. 2, s. 1.) IV. PLEADnSTG. For the general mles, see Pleading. A vendor meaning to rely on the purchaser's waiver of his prima, facie right to a marketable title, must allege or charge such waiver, and it is not sufficient to allege facts which if proved would be evidence of it. But it is improper to introduce general charges of waiver, unsupported by a statement of the particular facts : (Dart, 1013 ; Seton, 1300.) A statement of claim which shows that a specified consent is requisite to enable the plaintiff to perform the contract, but omits to state that such consent has been obtained, is not. demurrable : (Dart, 1013-4.) When the contract is originally conditional, the performance of the con- dition should be alleged : (Dart, 1014.) When the contract purports to be signed by an agent, the fact of the agency and his authority should be alleged : (Id.) The plaintiff should state that he &is performed, or been ready and willing to" perform, his part of the agreement; and that there is no incapacity in the defendant to complete it : {Id.) If damages are claimed, some special injury must be shown : (Id.) It is usual, now, to claim specific performance, or, in the alternative, damages, especially when the right to the former relief is doubtful. Questions of compensation must be put in issne by the pleadings: (Seton, 1317.) V. PRELIMmART REFERENCE AS TO TITLE. 1. POWEB TO OSDES. As to conditions precluding the purchaser from requiring a reference, see Seton, 1300 et seq. Inquiries may be directed at any time : (see O. XXXIII., cited sup. p. 438.) 2. Duty of Vendoe. In almost every case it ,is the duty of the vendor, where there is no question but that of title between him and the purchaser, to avail himself of the opportunity of having an immediate reference as to title, so as to save the multiplication of unnecessary costs : (per James, L.J., Phillipson V. Gibbdn, L. Rep. 6 Oh. App. 428, 435.) On the other hand, the object of granting the reference before the hearing is merely to save time, and will be refused where the plaintiff vendor has been guilty of delay : (Dart, 1097.) 3. WhbIbe Refeeence Obdeeed. The reference, even under the old practice, might be made at the instance of either party, before the hearing, or at the plaintiff's instance before defence, unless the defendant's counsel could state that other matters were in question ; and although the only question of title was one which might be conveniently determined at the hearing without a refer- ence, or although specific performance were resisted on the ground that ,time was of the essence of the contract, and that a good title was not shown within the specified period : (Dart, 1095.) Bpecific Performance^ 839 If there are other grounds of defence, a preliminary reference will not be directed at the instance of either party, unless such grounds are manifestly frivolous : (Jd.) 4. What Inquiries Made. The order is to inquire whether a good case be made at the time of the reference (not the date of the contract), and, in case it shall appear that a good title can be made, an inquiry when it was first shown that such good title could be made : (Dan. 1112 ; Seton, 1297 ; Dart, 1098.) _ The further inquiry is not directed when the contract itself is disputed (Dan. 852) or the court expressly directs such further inquiry to be omitted : (Dart, 1098.) GreneraHy, everything connected with the title may be made the subject of the reference (Seton, 1299-1300 ; Phillipson v. Qihbon, sup. ; _ Be Burroughes, Lynn, and Sexton, L. Bep. 5 Oh. Div. 601) ; but a question, whether, assuming a breach of a covenant in a lease to be a continuing breach such as to render the purchaser liable to eviction immediately after completion, notwithstanding any waiver up to completion, the court would force the purchaser to accept the title, was held to be a ques- tion to be decided at the trial, and not on a reference as to title : {Lawrie V. Lees, L. Bep. 14 Ch. Div. 249; 42 L. T. Rep. N. S. 485 ; 28 W. B. 779 ; and see Dart, 1098.) Where an inquiry is directed in general terms whether the vendor can make a good title, it must be understood to mean a good title having regard to the terms of the contract: {Upperton v. Nickolson, L. Bep. 6 Ch. App. 436 ; 25 L. T. Bep. N. S. 4.) As to how the inquiries are worked out, see post, IX. 6. Incideiital Dieections. The order should also contain the usual directions for the production of deeds, &c;, and for the examination of the parties on oath, and reserve further consideration which in itself includes the question of costs : (Dart, 1098.) VI. DISMISSAL FOB WANT OF PBOSBCUTION. Pending the reference as to title, the defendant cannot dismiss the action for want of prosecution : (Dart, 1099.) VII. OBDEBESTG PURCHASE MONEY INTO COUET. Where the purchaser is in possession of the estate, without payment of the purchase money, and the possession is held contrary to the lutention of the parties, or is held according to it, but the purchaser has exercised , improper acts of ownership, he may, even before defence, be ordered, upon motion, to pay the purchase money into court : (Dart, 1089- 1093.) VIII. OBIGINAL JUDGMENT. 1. Wheeb Contbact Disputed. Where, by reason of the contract itself having been disputed, the action is heard before the reference, the practice is to declare absolutely that the plaintifE is entitled to a specific performance of the agreement, and to direct a reference to inquire whether a good title can be made ; not to declare that the plaintiff is entitled, &c., if a good title can be made; and in such a case the court, in directing a reference, wiU not direct an inquiry as to when the title was first shown: (Dart, 1114; Flood V. Pritchard, 40 L. T. Rep. N. S. 873 ; Dan. 8520 ' The court may reserve the cost of the inquiry : {Slack y. Midland Railwwy Company, L. Rep. 16 Ch. Div. 81 ; 43 L. T. Rep. N. S. 434.) 840 Specific Performance: 2. Where Title ojtlt in Qitestion. The court will not, generally, permit the question whether a good title can be made, to be argued before it in the first instance, but wul declare by the original judgment, if the title has not been established, the right to specific performance in case a good title can be shown : (Seton, 1299.) 3. Aptee Peeliminaet Repeeence. Where there has been a preliminary inquiry as to title, a final judgment may be made at the hearing without reserving further consideration : {Twrquamd v. Wilson, L. Rep. 1 Ch. Dir. 85.) 4. Fob Damages. [See sup. I., 10.] IX. PROCEEDINGS OJST REFERENCE AS TO TITLE. 1. DiEECTING AbSTEACT, &C., TO BE BeOTJGHT IN. On the return of the summons to proceed on a judgment or order directing an inquiry [see Chambees] as to title, the abstract and a written statement of objections and requisitions or points in dispute, are usually directed to be left at chambers, and a day is named to proceed thereon : (Dan. 1112.) 2. Discussioir op Title.. On the day appointed, or an adjournment, the purchaser brings in his written objections, and the questions are discussed before the cmef clerk or judge in chambers or in court : (Dan. 1112 ; Dart, 1099.) 3. Conveyancing Counsel. The opinion of the conveyancing counsel of the court may be obtained : (see Conveyancing Counsel.) When such opinion is obtained, the proceeding is renewed at chambers by appointment : {Id.) 4. Ceetipicate. {a) Making. The chief clerk either certifies that a good title can be made, or that it Cannot be made, in which case the certificate states the points in which the title is defective : (Dan. 1113 ; Dart, 1099.) A purchaser cannot, on a certificate of defective title, insist on being discharged, if the title can be made good within a reasonable term : (Dan. 1113.) Ab to what title will be forced on a purchaser, see Dart, 1099 et seq. (6) Reviewing. If, after a certificate of good title shown, any new fact appears by which the title is affected, the court will, on motion, direct the certificate to be reviewed (Dan. 1113, 1114), although the time for applying to discharge or vary the certificate has expired : (Dart. 1110.) If, on appHcation to vary a certificate in favour of a title, the court thinks the evidence in support is insufficient, it will direct review, on the application of the vendor, to give him an opportunity of producing further evidence : {Id., and see Dart, 1110, 1111 ; Seton, 1300.) The title will also be again referred at the vendor's request where an application to vary a certificate against the title is refused : (Seton, 1300). Alter a certificate of title has been directed to be varied, an application by the vendor to review must be made without delay, and the vendor must pay the costs of the order : (Dan. 1114.) For form of order to review certificate against title shown, see Seton, 1298. Specific Performance. ' 841 Where on an application to vary au uufavourable certificate, the vendor shows that he can clear up the objection, the court will Dispose of the case ; Let it stand over ; Remit it to chambers for further consideration : (Dan. 1114.) If an application to vary a favourable certificate is overruled, other objections to the title cannot be made : (Dan. 1114.) If such an application is allowed, and a new abstract is delivered, further objections may be brought in : (Id.) X. FURTHER CONSIDERATION. 1. Geneeally. No further consideration is necessary where a preliminary reference as to title has been had : [Ihirguaiiid v. Wilson, L. Rep. 1 Oh. Div. 85.) If the certificate be in favour of the title, and no application be pade to discharge or vary it, a judgment for specific performance wiU be made on the hearing on further consideration : (Dart, 1109-1110.) If the certificate be against the title, and there be no application to discharge or vary it, or if such application be unsuccessful, the vendor's action may be dismissed with costs on further consideration : (Dart, 1111.) If, no application being made to discharge or vary the certificate, the cause comes on for further consideration, or for original hearing if the reference were made before the hearing, and the vendor can satisfy the court that he can remove the defect in the title — as where he can procure the concurrence of a party having an interest — specific performance wiU be adjudged without a reference back to chambers : (Dart, 1112.) If, in a vendor's action, the purchaser be considered unable to pay what is due for purchase money, interest, and costs, the judgment may direct that in default of payment the premises be sold to satisfy the amount, and that the deficiency, if any, be paid by the purchaser : (Dart, 1117.) 2. Payment by Instalments. Where the defendant became liable to the plaintiff under an agreement for purchase of certain leasehold premises, and an award of an arbitrator of certain differences arising on the agreement, for the payment of the balance of the purchase money by instalments, in an action for specific performance and payment of the instalments, the court gave judgment, ordering an account to be taken of instalments due, and the balance of the purchase money owing to be certified, reserved liberty to apply at chambers fourteen days after the certificate for an order for payment of the balance, declared a lien on the estate purchased for the balance, and reserved liberty to apply in respect of future instalments as they accrued due : {Nives v. Nives, 42 L. T. Rep. N. S. 832 ; L. Rep. 15 Ch. Div. 649.) 3. Interest and Rents and Peoeits. For the form of order directing interest to be computed, and for an account and deduction of rents and profits, see Seton, 1303. Where there is no stipulation as to interest, the general rule is that the purchaser, when he completes after the time stipulated, shall be considered in possession from that time, and shall pay interest at 4Z. per cent, on taking the rents and profits : (see Seton, 1308-9.) After the time for completion, the vendor is accountable for rents and profits, but usually only for those actually received, unless he allows the 842 ^ Specific Performance. rents to fall into arrear, when he will be held accountable for the arrears ; (Seton, 1309.) 4. Deposit. Where a vendor's suit .is dismissed, after a certificate against the title, he will be ordered to return the deposit with interest at 41. per cent: (Setdn, 1312.) As to payment of deposit by auctioneer, see sup. XI. PROCEEDINGS ON FUETHBR ORDER. Upon the return of the summons, evidence of the amount due for purchase money, interest, and costs of suit is directed to be brought in, and if such costs are to be included, the inquiry is, adjourned till after taxation ; in other cases, a day is named to proceed on the account : (Dan. 1115.) If the parties differ as to the conveyance, it is directed to be brought in and settled : (see Deeds.) The conveyance should be dated from the time when the title is first shown : (Seton, 1311.) If there is a diflcnlty as to the time when the conveyance is to be delivered or purchase money paid, an order may be obtained, on motion or summons, with notice, appointing a time and place for the purpose : (Dan. 1116.) XII. HOW JUDGMENT ENFORCED. Where the defendant refuses to comply with the judgment the plaintiff may— (1) Obtain an order fixing time and place of payment and conveyance, or a period within which the judgment is to be obeyed, and on disobedience proceed by contempt ; (2) (If a purchaser) obtain a vesting order ; (3) Apply for an order rescinding ttie agreement ; (4) (H a vendor) enforce his vendor's lien : (Seton, 1327.) Where any [judgpient] shall be made by any court of equity for the specific performance of a contract concerning any lands, it shall be lawful for the said court to declare that any of the parties to the said suit wherein such [judgment] is made are trustees of such lands or, any part thereof, within the meaning of [the Trustees Act, 1850], or to declare concerning the interests of unborn persons who might claim under any party to the said suit, .or under the wul or voluntary settlement of any person deceased who was during his lifetime a party to the contract or transactions , con- cerning which such [judgment] is made, that such interests of unborn persons are the interests of persons who, upon coming into existence, would be trustees within the meaning of [the]^ Act, and thereupon it shall be lawful for the Lord Chancellor [on behalf of lunatics], or the [Chancery Division], as the case may be, to make such order or orders as to the estates, rights, and interests of such persons, bom or unborn, as the said court or the said Lord Chancellor might, under the provisions of [the] Act, make concerning the estates, rights, and interests of trustees bom or unborn : (Tmstee Act, 1850, s. 30.) After a judgment for a conveyance, a vesting order may be made in chambers : (see C. O. 35, r. 1 ; Chambees.) As to whether a vesting order can be made in case of an agreement to grant a lease, see cases cited Seton, 1329. If a purchaser can be shown to be about to abscond without paying his purchase money, cases : (see Injunction, I.) Provided always, that nothing in this Act contained shall disable either of the said courts from directing a stay of proceedings in any cause or matter pending before it if it shall think fit : (J. A. 1873, s. 24, sub-s. 5.) Any person, whether a party or not to any such cause or matter, who woidd have been entitled if this Act had not passed, to applyto any court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule, or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said courts respec- tively, by motion itx a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice ; and the court shaJl thereupon make such order as shall be just : (J. A. 1873, s. 24, sub-s. 5.) As to the oases in which courts of equity would restrain proceedings at law, see The Earl of Oxford's case, 1 Ch. Rep. 1 ; 2 "W. & T. L. 0. (4th ed.) 601, and notes ; Companies Act, 1862, ss. 85, 87, 197, 202. An action by the executors of a will against testator's wijiow to recover bonds belonging to the deceased, has been stayed during the pendency of an administration suit, in which the question was, whether the will was to be administered by French or English law : [Geohegan . V. Dormer, W. N. 1875, p. 229.) "Where an executor mortgaged and the mortgagee and the equitable tenant for life leased the property, and the mortgagee brought an action to recover the land from the lessee, on the ground of forfeiture, the executor obtaining leave to defend as landlord, an order to stay, on an administration action being afterwards begun W the executor, was set aside on appeal : (Crowle v. Russell, L. Rep. 4 0. P. Div. 186 ; 27W. R. 84.) . . ^ Where judgment has been recovered in an action, and an action for an account between plaintifE and defendant is pending, the former proceedings wiU be stayed on payment of the amount of the judgment into court : {Eeevers v. Michell, W. N. 1876, p. 53.) An action of trover against executors will not be stayed during an administration action {Wood v. Wakefield, W. N. 1875, p. 238); nor will an action for non-delivery of goods be stayed until a bill given by the plaintifE to the defendant becomes due : {Frdkes v. Breslow, W. N. 1875, p. 239.) 846 Staying Proceedings. 2. When Peocebdings commenced without Attthobitt. (a) Of Solicitor. Every solicitor whose name shall be indorsed on any writ of summons shall, on demand in writing made by or on behalf of any defendant who has been served therewith or has appeared thereto, declare forth- with whether such writ has been issued by him or with his authority or privity ; and if such solicitor ,shaU declare that the writ was not issiied by him or with his authority or privity, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the court or a judge : (O. YII., r. 1.) (6) Of Plaintiff. (1) Generally. [See SoLiciTOE.J (2) Original Summons. Where a summons originating proceedings is filed without authority, an application to take it ofE the file, or to stay proceedings, as regards the applicant, should be made by summons : (Dan. 1051.) (3) Married Woman. If the next friend of a married woman, who is not an infant, commences an action without her consent, she may, upon motion, obtain the dismissal of the suit with costs, which the next fnend has to pay, but, this right does not exist for the benefit of a defendant : (See Pabties, I., 14.) A writ, issued by a next friend of a married woman without the employment of a solicitor, will, with aE subsequent proceedings,' be set aside with costs, to be paid by the person issuing it : (Swann v. Swarm, 43 L. T. Rep. N. S. 630.) 3. Wheee Satisfaction Made oe Opfeebd. (a) Generally. Where the defendant offers to comply with the plaintiff's demand, and would have done so, if asked, before the action was commenced, the court will stay all further proceedings without costs : {Radd v. Rowe, L. Rep. 10 Bq. 610.) Where the principal relief is conceded after action brought, the plaintiff may go on for costs alone : (See Costs, II.) (b) Writ for Liquidated Demand. Wherever the plaontiffi's claim is for a debt or liquidated demand only, the indorsement, Deside stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs respectively, and shall further state that, upon payment thereof within four' days after service, or in case of a writ not for service within the jurisdiction, within the time allowed for appearance, further proceedings wiU be stayed The defendant may, notwithstanding suci payment, have the costs taxed, and if more than one-sixth shall be disallowed, the plaintiff's soHoitor shall pay the costs of taxation : (O. III., r. 7.) If the amount is paid afterwards, and no return of the money is offered, proceedings will be stayed : {Sodding v. Starchfield, 7 M. & G. 967.) If a smaller sum than that claimed is paid, it should be into court, and a copy of the receipt should be sent to the plaintiff's solicitor, but no order to stay wiU be issued (W. N". 1876, p. 201). If the plaintiff does not recover more, he will have to pay the defendant's costs : {Watson v. Coleman, 7 M. & G. 424 ; Clerk v. Bavm, 8 Dowl. 673.) (c) Administration Summons. If the defendant submits, at the hearing, or by taking out a summons Staying Proceedings. ■ 847 for the purpose, to pay the plaintiff's claim and costs, the proceedings will be stayed : (Dan. 1075.) (d) .Landlord's Actions to Becover Possession. (1) On Non-Payment of Rent. If the tenant or his assignee do or shall, at any time before the trial in [an action by the landlord for recovery of land for non-payment of rent], pay or tender to the lessor or landlord, his executors or adminis- trators, or his or their [solicitors] in that cause, or pay into the court where the same cause is depending, all the rents aad arrears, together with the costs, then and in such case all further proceedings .... shall cease and be discontinued : (C.L.P.A., 1852, s. 212.) A sub-lessee is aji assignee within the section, aad may apply for a stay : (Doe d. Wyatt v. Byron, 1 0. B. 623.) So may a mortgagee : {Doe d. Whitfield v. Boe, 3 Taunt. 402 ; cited Day.) Relief will be granted whdte the tender of rent has been made before the action is actually commenced : [Goodright v. Noright, 2 W. Bl. 746.) Upon applying, the rent should be calculated to the last rent day, and not to the day of computing : {Boe d. Sar court v. JJoe, 4 Taunt. 883.) ' The coTirt or a judge may give relief in a summary manner, upon rule or summons, subject to appeal, and subject to the same terms and conditions in all respects, as to payment of rent, costs, and otherwise, as, formerly in the Court of Chancery : (C.L.P.A., 1860, s. 1 ; and see sv,p.) This enables the court to give relief any time within six months after execution executed : (see O.L.P.A., 1852, s. 210, which limited the Chancery jurisdiction to that time.) (2) On Breach of Insurance Covenant. A court of equity shall have power to relieve against a forfeiture for - breach of a covenant or condition to insure against loss or damage by fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the appucation to the coiirt in conformity with the covenant to insure, upon such terms as to the court may seem fit : (22 & 23 Vict. c. 35, s. 4.) The court shall not have power under this Act to relieve the same person more than once in respect of the same covenant or condition, nor shall it have power to grant any relief under this Act where a forfeiture under the covenant in respect of which relief is sought shall have been already waived out of court in favour of the person seeking the relief : (22 & 23 Vict. c. 36, s. 6.) The preceding provisions shall be applicable to leases for a term of years absolute, or determinable on a life or lives or otherwise, and also to a lease for the life of the lessee, or the life or lives of any other person or persons : (22 & 23 Vict. c. 35. s. 9.) Where such relief shall be granted, the court or a judge shall direct a minute thereof to be made by indorsement on the lease or otherwise : (C.L.P.A., 1860, s. 3.) (e) Mortgagees Action to Recover Possession. Where an action .... shall be brought by any mortgagee, his heirs, executors, administrators, or assignees, for the recovery of the possession of any mortgaged lands, tenements, or hereditaments, and no suit shall be then depentog in any ... . court of equity in ... . England, for or touching the foreclosing or redeeming of such mortgaged lands, 848 Staying Proceedings'. tenements, or hereditaments, if the person having right to redeem such mortgaged lands, tenements, or hereditaments, and who shall appear and become defendant in such action, shall, at any time pending such action pay unto such mortgagee, or, in case of his refusal, shall bring into court, where such action shall be depending, all the principal moneys and interest due on such mortgage, and also all such costs as have been expended in any suit .... upon such mortgage (such money for principal, interest, and costs to be ascertained and computed by the court where such action is or shall be depending, or by the proper officer by such court to be appointed for that purpose), the moneys so paid to such mortgagee, or brought into such court, shall be deemed and taken to be in full satisfaction and discharge of such mortgage, and the court shall and may discharge every such mortgagor or defendant of and from the same accordingly ; and shall and may by rule of the same court compel such mortgagee, at the costs and charges of such mortgagor, to assign, surrender, or reconvey mortgaged lands, tenements, and hereditaments, and such estate and interest as such mortgagee has therein, and deliver up all deeds, evidences, and writings in his custody, relating to the title of such mortgaged lands, tenements, and hereditaments unto such mortgagor who shall have paid or brought such moneys into the court, his heirs, executors, or administrators, or to such other person or persons as he or they shall for that purpose nominate or appoint : (C.L.P.A., Xo52, s. Jli?.) Nothing [in sect. 219] shall extend to any case where the person against wbom the redemption is [claimed] shall (by writing under his hand, or the hand of his .... agent, or solicitor, to be delivered before the money shall be brought into such court, .... to the solicitor for the other side) insist, either that the party praying a redemption has not a right to redeem, or that the premises are chargeable with other or diSerent principal sums than what appear on the face of the mortgage, or shall be admitted on the other side ; or to any case where the right of redemption to the mortgaged lands and premises in question in any cause or suit shall be controverted or questioned by or between difEerent de- fendants in the same cause or suit ; or shall be any prejudice to any subsequent mortgage or subsequent incumbrance: (C. L. P. A. 1852, s. 220.) (a) In Payment of Costs of Former Proceedings. Where a plaintiff has made default in payment of the costs of a former suit against the same defendant, or the person whom he represents, for the same purpose, the defendant may, after the amount has been ascertained by taxation, obtain an order on motion, after notice, staying all further -proceedings until the plaintiff has paid such costs : (Dan. 696.) Where the same object may be obtained under two different modes of proceedings, if the first is adopted and then abandoned, and the second adopted, the proceedings in the second may be stayed until the costs of the first are paid : (Dan. 697 ; Sankin v. Turner, 39 L. T. Rep. N. S. 611.) _ , Where an action for administration in the Chancery Division by the alleged next of kin was dismissed for want of prosecution, and the plaintiff afterwards commenced an action in the Probate Division for revocation of the letters of administration (which had been granted to another alleged next of kin), an order to stay tiU payment of the costs in the Chancery Division was refused : {Hankin v. Tv/rtier, sitp.) Where an order allowing a demurrer to a statement of claim gave liberty to amend on payment of costs, an order was made staying pro- Staying Proceedings. 849 ceedings until the costs had been paid: {White v. Bromige, W. N. 1878, p. 28 ; 38 L. T. Rep. N. S. 413 ; 26 W. R. 312.) Where, after great delay, the costs still continue nupaid, the court will order the plaintiff to pay them within a limited time, or, in default, that the second action or the proceedings be dismissed : (Dan. 697; White v. Bromige, sitp.) (6) In giving Security for Costs. Where a plaintiff fails to comply with an order to give security for costs, the court has a discretion to dismiss the action for want of pro- secution :. (see Costs, I., 1, (g).) Any person against whom an action .... of tort may be brought in [the High Court, may] make an affidavit that the plaintiff has no visible means of paying the defendant should a verdict be not found for the plaintiff, and thereupon a judge .... shall have power to make an order that unless the plaintiff shall, within a time to be therein mentioned, give full security for the defendant's #osts to the satisfaction of one of the Masters .... or satisfy the judges that he has a cause of action fit to be prosecuted in the [High] Court, all proceedings in the action shall be stayed [or the action may be ordered to be remitted for trial in a Comity Court] : (30 & 31 Vict. c. 142, s. 10 ; and see Teanspeb.) (c) In Giving Discovery. (1) As to Partnership Constitution. When a writ is sued out by partners in the name of their firm, the plaintiffs or their solicitors shaU, on demand in writing by or on behalf of any defendant, declare forthwith the names and places of residence of all the persons constituting the firm. And if the plaintiffs or their solicitors, shall fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the court or judge may direct : (O. VII., r. 2.) (2) On Interrogatories or as to Documents. If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents .... he shall .... if a plaintiff be liable to have his action dismissed for want of prosecution : (O. XXXI., r. 20.) In a suit by a foreign government or a corporation proceedings wiU be stayed until it has named a proper person to make discovery : {B^puhlic of Peru V. Weguelin, L^ Rep. 20 Eq. 140 ; Bepublic of Costa Bica v. Brlanger, L. Rep. 1 Ch. Div. 171 ; 45 L. J. 145, Ch.) 5. On Cbssbe of Inteebst. Where a person believed to be next of kin and holding letters of administration commenced an action for administration after notice of the claim of another person, and the letters of administration of the former were revoked and granted to the latter, the former admuiistration proceedings were stayed : {Houseman v. Houseman, L. Rep. 1 Ch. Div. 535.) 6. Foe Abuse of Peocess. [See Abtjsb of Peocess.] 7. By Consent. By consent, the action may be dismissed or the proceedings stayed, on motion of course, or petition of course at the RoUs, or on special motion or petition, or on summons, on any terms which may be agreed upon. Where any parties are not sui juris, or are executors or trustees, the court must be satisfied of the propriety of the agreement : (Dan. 696 ; and see COMPEOMISB.) Ill S50 Staying Proceedings. 8. Where Special Case oedebed. I If the court or a judge [make an order for a question of kw to be raised by special case or otherwise] all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed: (O. XXXIV., r. 2.) 9. Ajptee Oedee on Administeation Summons. Where under the order on administration summons the same relief can be obtained as in an administration action subsequently commenced, the latter proceedings will be stayed : (Dan. 1076.) 10. On Consolidation of Actions. [See Consolidation.] 11. Attbb Ageeement to Refbe. [See Aebiteation, XIX.] 12. Bt Oedee foe New Teial. [See New Teial, IV., 2.] 13. Pending Appeal. [See Appeal, VI.,- 14.] II. APPLICATION. 1. Wheee Made. The application must be made in the Division in which the action or other proceeding to be stayed is pending even in the case of an action against a company in course of being wound-up, or the personal represen- tative of a deceased person whose estate is being administered {QarhuU V. Fawcus, L. Rep. 1 Ch. Div. 155 ; 45 L. J. 133, Ch. ; Be Penh's Oarden Company, L. Rep. 1 Ch. Div. 44 ; 45 L. J. 129, Oh. ; Be South of France Pottery Works Syndicate, W. N. 1877, p. 205 ; Wright v. Bedgrave, L. Rep. 11 Ch. Div. 24); whether the application is made before or after execution perfected by seizure : {Be Artistic Colour Printing Cornmawy, L. Rep. 14 Ch. Div. 502 ; 42 L. T. Rep. N. S. 802.) Bacon, V.OT, prior to the decision of the Master of the Rolls lastly cited, granted an injunction in a winding-up to restrain the sheriff from proceeding to a sale under an execution perfected by seizure before the commencement of the winding-up : {Be Perkins Beach Lead Mining Company, L. Rep. 7 Ch. Div. 371.) As to the power of transferring actions in other divisions to the Chancery Division after winding-up or administration orders, see Teansfee. Until such a transfer is made, the division in which the action is -pending, may stay proceedings : {Walker v. Banagher Distillery Gom/pany, L. Rep. 1 Q. B. Div. 129 ; 46 L. J. 135, Ch. ; Base v. Gwrddm Lodge Com^an,y, L. Uep. 3 Q. B. Div. 236.) Wliere a cause is transferred from one judge of the Chancery Division to another for hearing only, the judge to whom the cause is transferred has jurisdiction to hear an application to stay proceedings pending an appeal from his judgment : {Orr-Fwing and Co. v. Johnston and Co., 41 1. T. Rep. N. S. 467.) As to the court to which application must be made when an appeal is pending, see Appjial, VI., 14. 2. How Made. The application is generally by motion on notice. Where a petition for vrinding up is pending, the application to stay an action against the company may be made by ex parte motion., but notice of the order must be Staying Proceedings — Stop Order. 851 given to the plaintiff : {Mashach v. James Anderson and Co., "W. N. 1877, p. 252; 37 L. T. Eep.N. S. 440.) When the plaintiff attempts to go on in contravention of an agreement to eompromise, proceedings may be stayed on summons (Hakes V. HodgUns ; Eden t. Naish, L. Rep. 7 Ch. Div. 781 ; 47 L. J. 326, Oh. : 26 W. a. 392). [See also swp. I.] m. PARTIAL STAT. An action may be partially stayed : (Be Aird, W. N. 1878, p. 24.) STOCK. [See Chaeging Stock ; i^xBcuTioN, XIX. ; Resteaijting Okdee ; Trustees.] STOP ORDER. I. ON FUND IN COURT. 1. Who Mat Obtain Obdeb. 2. Application. (a) When Made, (jb) How Made. 3. Evidence. 4. Obdeb. (a) Lea/ving with Pa/ymaster-General. fb) Effect. 5. DiscHAE&iNQ Oedeb ob Dealino with Fund. 6. Costs. n. ON DOCUMENTS IN COUET. >I. ON FUND m COPRT. 1. "Who Mat Obtain Oedbe. Any person, although not a party to the cause or prooeediug in which a fund ia court is stanmng, who has become entitled to any such fund, or a share thereof, or to any lien or charge thereon, may apply to the judge to whose court the cause or proceeding is attached, for an order to prevent the fund in question from beiug paid out, or otherwise dealt with, with- out notice to the applicant : (Dan. 1543.) 2. Application. (a) When Made. The court will not grant a stop-order to enforce a mere claim until the applicants have, by some independent proceedings, established their right to attach the fund in court : (see Widgery v. Temper, L. Rep. 6 Oh. Div. 364 ; and compare Hopewell v. Ba/rnes, L. Rep. 1 Oh. Div. 630.) (6) How Made. Whether the assignor of the fund concurs or not, the application must be made by summons : (Seton, 803, citing Wrench v. Wynne, 17 W. R. 198 ; Walsh V. Wason, 22 W. R. 676.) ,. ^ ■, x If a petition be presented, the apphcant may be ordered to pay ihe extra costs thereby occasioned: [WeUesley v. Mornmgton, 41 L. J. 776, Oh.) „ 1 1 1 2 852 Stop Order. Any person presenting a petition, or taking out a summons for any such order as aforesaid, shall not be required to serve such petition or summons upon the parties to the cause; or upon the persons interested in such parts 01 the stocks, funds, shares, securities, or moneys, as are not sought to be affected by any such order : (C. O. 26, r. 2.) The applicant must pay the costs of such other parties, if they are served : (Dan. 1545.) It is still necessary to serve the person whose interest is intended to be affected with a summons presented by the assignee alone : (Id.) 3. Evidence. , The affidavits must show the title of the person the payment of whose fund is to be restrained, although not necessarily the particular share of the fund to which he is entitled. The assignee's title must also be shown, either by proving it strictly, or by the assignor joining as applicant, or admitting the fact : (Dan. 1544.) The Paymaster-General's certificate of the fund in court must also be procured : (Ayck. 482.) 4. Obdes. (a) Leaving with Faymaster-Oeneral. The order, when passed and entered, or an office copy, must be left at the Chancery Pay Office : (Dan. 1546.) The Paymaster-General will jielay parting with a fund if he has. received notice of an intended application for a stop-order : {Id.) (6) Effeet. A stop-order does not decide anything as to the right of the parties : (Dan. 1545.) An incumbrancer, who has obtained a stop-order, and left it at the Chancery Pay Office, thereby obtains priority over a previous incum- brancer who has not done so, but the priority only extends to the charge in respect of which the stop-order was obtained : (Dan. 1546.) A solicitor's lien, on a fund recovered by his exertions, has priority over a stop-order obtained by an assignee from his client : (Saymes v. Cooper, 33 Beav. 431 ; Dan. 1546.) The fund will not be paid out or otherwise dealt with until it is either directly discharged, or some order is made expressly directing the fund to be dealt with notwithstanding the stop-order : (Dan. 1546-7.) The obtjaining of a stop-order does not give the person, if not a party to the action, the right to appear on further consideration, except at his own cost : {Mildmciy v. Quiche, L. Rep. 6 Ch. Div. 553.) 5. Discharging Oedbe ob Deamng with Fund. A person who has obtained a stop-order must be served with any application to deal with the fund, and at the hearing of the application the court wiU either (1) discharge the order, or (2) direct payment to the ' party who obtained it, or (3) n the rights of the parties cannot then be satisfactorily ascertained, will direct the fund to be retained in court for a limited time, to give the claimant an opportunity of taking the necessary steps for asserting the claim : (Dan. 1547.) A stop-order may also be discharged on petition or summons : (Dan. 1547a.) 6. Costs. Where any stocks, funds, shares, securities, or moneys, are standing in the name of the [Paymaster- General] in trust in. or to the general credit of any cause or matter, or to the account of any class of persons, and an order is made to prevent the transfer or payment of such stocks, funds, shares, securities, or moneys, or any part thereof without notice to the stop Order. 853 assignee of any person entitled in expectancy or otherwise to any share or portion of such stocks, funds, shares, securities, or moneys, the person by whom any such order shall be obtained, or the shares of such stocks, funds, shares, securities, or moneys affected by such order, shall be liable, at the discretion of the court or the judge at chambers, as the case may be, to pay any costs, charges, and expenses, which, by reason of any such order having been obtained, shall be occasioned to any party to the cause or matter, or any person interested in any such stocks, funds, shares, securities, or moneys : (C. O. 26, r. 1.) ' Where an iucnmbrancer of a fund in court obtains an order for pay- ment, out of such fond, of his principal and interest and his costs as mortgagee, the ejxpenses of obtaining a stop-order will not be allowed on taxation, unless expressly mentioned in the order : (Ayok. 483, citing . WaMilove v. Taylor, 6 Ha. 307.) The costs of obtaining a stop-order are . only allowed under special circumstances : (Ayck. 483^ Mildmay v. Quiche, L. Rep. 6 Oh. Div. 553.) II. ON DOCUMENTS IN COURT. An order may be obtained to stay the delivery out, without notice to the applicant, of documents deposited in the Central or the Chancery Pay Oface : (Dan. 1547.) SUBPCENA. [See Evidence, II., 5 (e).] SUMMONS. [See Chambees; Wkit of Summons.] TAXATION OF COSTS. ' [See Costs, IV., V.] TERMS. [See Time, II.] TEST ACTION. [See Consolidation.] THIRD PARTY NOTICES. [See Pleading, XVI.] 854 Time. Tl M E. I. INTEEPEETATION. 1. Time of Day. 2. Days. 3. CiiSAR Days. 4. Month. II. PAETIAL ABOLITION OP TERMS. ; in. PERIODS EXCLUDED m COMPUTING TIME. 1. Sttndats, &c. 2. Long Vacation. IT. SERVICE OP NOTICES, &c. V. ENLARGING AND ABRIDGING. 1. By OeDbe. 2. By Consent. I. INTBEPIIETATION. 1. Time of Day. Whenever any expression of time occurs in any Act of Parliament, deed, or other legal instrument, the time referred to shall, unless it is etherwise specifically stated, be held, in the case of Great Britain, to be Greenwich mean time, and, in the case of Ireland, Dublin mean time : (The Statutes (Definition of Time) Act, 1880, 43 & 44 Vict. c. 9, s. 1.) 2. Days. Where any limited 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 computation of such limited time shall not include the day of such date, or of the happening of such event, but shall com- mence at the beginning of the next following day ; and the act or proceed- ing shall be done or taken at the latest on the last day of such limited time according to such computation : (0. O. 37, r. 9.) 3. Oleae Days. Where the days are expressed to be clear days, the time is to be exclusive of both the first and last days : (Per RomiUy, M.R., in Watson V. Hales, 23 Beav. 300 ; per Coleridge, J., Liffm v. Pitcher, 1 Dowl. N. S. 769 ; Dawbney v. SJmttlewortJi, L. Sep. 1 Ex. Div. 53.) 4. Month. Where, by these rules, or by any judgment or order given or made after the commencement of the Act, time for doing any act or taking any proceeding is limited by months, not expressed to be lunar months, such time shall be computed hy calendar months : (O. LVII., r. 1.) II. PARTIAL ABOLITION OP TERMS. The division of the legal year into terms shall be abolished so far as relates to the administration of justice ; and there shall no longer be terms applicable to any sitting or business of the High Court of Justice, or of the Court of Appeal, or of any Commissioners to whom any juris- diction may be assigned under this Act ; but, in all other cases in which, under the law now existing, the terms into which the legal year is divided are used as a measure for determining the time at or within which any act is required to be done, the same may continue to be referred to for the same or the like purpose, unless and until provision is otherwise made by any lawful authority : (J. A. 1873, s. 26.) Time. 855- As to measuring time by terms, see Christ's College, Brecknock, v. Martin, L. Rep. 3 Q. B. Div. 16 ; 36 L. T. Rep. N. S. 536 ; 46 L. J. 591, Q. B. ; 25 W. R. 637. Subject to rules of court, the High Court of Justice and the court of Appeal, and the judges thereof respectiTely, or any such commissioners as aforesaid, shall have power to sit and act, at any time and at any place, for the transaction of any part of the business of such courts respectively, or of such judges or commissioners, or for the discharge of any duty which by any Act of Paj-liament, or otherwise, is required to be discharged during or after term : (J. A. 1873, s. 26.) III. PERIODS EXCLUDED IN COMPUTING TIME. 1. Sundays, &c. "Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, an^, Good Friday shall not be reckoned in the computation of such limited time : (O. LVII., r. 2.) Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on wmch the offices are closed, and by reason thereof such 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 on the day on which the ofSoes shall next be open : (O. LVII., r. 3.) Where the time for moving expired on a Sunday, it was held that the motion could be made on the next day on which the court sat : {Taylor v. Jones, 45 L. J. 110, C. P.) 2. Long Vacation. The time of the long vacation shall not be reckoned in the computation of the times appointed or allowed by the rules for filing, amending, or; delivering any pleading, unless otherwise directed by a court or a judge : (O. LVn., r. 5.) The time is not excluded in other cases : [Cram v. Samuels, L. Rep. 2 0. P. Div. 21.) No pleadings shall be amended or delivered in the long vacation, unless directed by a court or judge : (O. LVII., r. 4.) rv. SERVICE OP NOTICES, &c. Service of pleadings, notices, summonses, orders, rules, and other proceedings shall be effected before the hour of six in the afternoon, except on Satun^ys, when it shall be effected before the hour of two in the afternoon. Service effected after six in the afternoon on any week- day except Saturday shall be deemed to have been effected on the following day. Service effected after two in the afternoon on Saturday shall be deemed to have been effected on the following Monday: (O. LVn., r. 8, April, 1880.) V. ENLARGING AND ABRIDGING. 1. Bt Obdee. A court or a judge shall have power to enlarge or abridge the time appointed by the rdes, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or allowed : (O. LVII., r. 6.) Where the time for appealing will expire before the Court of Appeal -win sit, the time ought to be extended as a matter of course : (Walling- 856 , . Time—Trcide Maries. ford V. Mutual Society, L. Rep. 5 App. Cas. 685 ; 43 L. T. Rep. N. S. 258.) The order has no applicatioil where one act is ordered by the rules to be done before another act : {Be Pileher ; Pilcher v. Hinds, L. Rep. 11 Ch. Div. 905 ; 40 L. T. Rep. N. S. 422, 832 ; 48 L. J. 512, 587, Oh.) Where the time has elapsed through a mistake of the party as to the meaning of a rule, the court will not extend the time : (International Financial Society v. City of Moscow Gas Corrvpany, L. Rep. 7 Oh.- Div. In ease of a slip the time has been extended : {CanaMam, Oil Wells ■ Corporation v. Hay, W. N. 1878, p. 107.) TOie court cannot extend the time to renew a writ, where the claim, without renewal, would be barred by the statute : {Doyle t. Kaufmam., L. Rep. 8 Q. B. Div. 7, 340.) Sbe, also, cases cited Dismissing Action ; Stirling v. Bu Barry, L. Rep. 5 Q. B. Div. 66. After the time has expired the court has a discretion which will be exercised in favour of enlarging time whenever justice requires, although the proceedings have tefchnicdly expired : {BurTee v. Booney, L. Rep. 4 0. P. Div. 226 ; 48 L. J. 601, C. P. ; 27 "W. R. 915 ; Carter v. Stubbs, 70 L. T. 25, 78 ; W. N. 1880, p. 183.) The costs of an application to extend the time for taking any jiro- ceeding shall, in the absence of an order by the court or a judge directing by whom they are to be paid, be in the discretion of the taxing master : (Add. Rules, Aug. 1875, r. 22a, April, 1880.) The following form of order is given : In the High Court of Justice. Division. , 18 No. . Master in Chambers. Between Plaintiff, and Defendant. Upon hearing , and npon readpg the affidavit of filed the day of 18 , and It is ordered that tbe shall have time and that the costB of this application be Dated the day of 18 . (Rules of April, 1880, Sched. H. 3.) 2. By Consent. The time for delivering or amending any pileading may be enlarged by consent in writing, without application to the court or a judge: (O. LVII., r. 6a, Aprfl, 1880.) TRADE MARKS. I. DEFINITION OF A TRADE MARK. II. NECESSITY FOE EEGISTEATION. ni. PEOCEDXJEE IN THE EEGISTEY. 1. Application. 2. Classification oi' Cotton Maeks. 3. ASVBBTISIiMENT. 4. Opposition. (a) To Original Entry on Register. (V) To Subsequent Entries on Register. Trade Marks. 857 5. Eeqistration. (a) In What Cases. (6) Date. (c) Mode. 6. Eefusal to Ee&istbe. (o) In what Cases, (h) Certificate. 7. CONTINTTANCB OP TrADE MAKK ON EeOISTEK. 8. Eestoeation op Teade Maek to Ebgistee. 9. Cancellation op Entry on Eegistee. IV. PEOCEDURE m COUET. 1. Definition op "Coubt." 2. In wsat Cases Application Made. 3. Mode op Application. 4. Obdinaet Forms op Application. (a) By A]^licant for Registration. (ft) By Oppotient or Person Aggrieved. 5. Powers op the Court. 6. Costs. 7. Notice to Eegistear. I. DEFINITION OF A "TRADE-MARK." For the purposes of .the Trade Marks Registration Act, 1875, a trade- mark consists of one or more of the following essential particulars, that is to say : (1) A name of an individual or firm printed, impressed, or woven in some particular and distinctive manner ; or, (2) A written signature, or copy of a written signature, of an individual or firm ; or, (3) A distinctive device, mark, heading, label, or tick^; And there may be added to any one or more of the said parti- culars any letters, words, or figures, or combination of letters, words, or figures ; also (4) Any special and distinctive word or words, or combination of figures or letters, used as a trade-mark before the passing of the Trade Marks Registration Act, 1875, may be]registered as such under that Act. (Trade Marks Registration Act 1875, s. 10.) , II. NECESSITY FOR REGISTRATION. From and after the first day of July, 1877, a person shall not be entitled io institute any proceeding to prevent or to recover damages for the infringement of any trade mark as defined by the Trade Marks Regis- tration Act, 1875, until and unless such trade mark is registered in pursuance of that Act, or nntU and unless, with respect to any trade mark in use before the passing of that Act, registration shall have been refused : (Trade Marks Registration Act, 1876, s. 1.) III. PROCEDURE IN THE REGISTRY. 1. Application. A person, whether a British subject or an alien, desiring to register a trade mark, shall apply to the Registrar by sending him, (1) A Statement, wmch is to be dated and signed by the applicant, and is to contain the following particulars ; , (a) The name and address and calling of the applicant. 858 , Tmde' Marks. (6) The description of the trade mark to be registered, the description to • be in writing, and accompanied, when practicable, by a representation of the mark in duplicate. (c) The class, or classes, of goods (and the description, or descriptions, of goods separately for each class [Regis- trar's Instructions]), for which the mark is to be registered. (d) In the case of an old mark, a description of the goods for which it has been used, and the length of user. (2) A Declaration verifying the statement, and declaring that, to the best of the applicant's knowledge and belief, he is lawfully entitled to use the trade njjirk. (3) The prescribed fee, i.e., on application : £ 8. d. (a) For one trade mark for one or more articles in one class 1 (5) For more than one trade mark for one or more articles in one class, for each additional trade mark after the first 10 (c) For a trade mark in respect of goods in diJEerent classes, for every class after the first 2 (Rules 5—9 and 2nd Schedule.) Any jiroprietor of a cotton mark not specified in the second class in the list made out by the Committee of Experts may apply to be registered as proprietor of such cotton mark in manner and subject to the conditions in which he may apply to be registered as proprietor of any other trade mark: (Rule 62.) In case of application for old cotton marks, three representations of the mark must be sent to the Manchester office : (Rule 58.) The terms employed by the applicant for a trade mark in describing his mark are to be construed in accordance with the evidence of persons versed in the particular trade : [Mitchell v. Senry, 43 L. T. Rep. N. S. 186; L. Rep. 15 Ch. Div. 181.) 2. CiAssii'icATioN OF Cotton Makes. The cotton marks of which representations have been sent in to the Manchester office shall be divided by the Committee of Experts, appointed, by the Commissioners of Patents, into two classes — the first class, •consisting of such of the said cotton marks as are, in the opinion of the CommitteeKtrade marks within the meaning of the Trade Marks Registra- tion Act, 1876, and the second class consisting of such of the said cotton marks as are not, in the opinion of the Committee, trade marks within the meaning of the Act : (Rule 69.) It is not the function of the Committee of Experts to decide questions 'of title between rival claimants of cotton marks : (Sx parte Ede Bros, and Co., 28 W. R. 436.) The decision of the Committee is not final, but is subject to revision by the court : {Orr-Ewing and Co. v. Registrar of Trade Maries, L. Rep. 4 App. Gas. 479 ; Be Orr-Ewing, 28 W. R. 412 ; Be Dugdale, 28 W. R. 436.) 3. Advebtisbment. As soon as may be after the receipt of an application, the Registrar shall require the applicant to insert an advertisement of the application in the Trade Maries Journal, and the applicant may be required to furnish the printer with a wood-block or electrotype of the trade mark : (Rules When the application is for the registration of a cotton mark, a similar Trade Marks. ' 859 advertisement is to be inserted in the Journal, specifying further the places in London and Manchester respectively where a specimen of such mark is deposited for exhibition : (Rule 1 of Feb., 1877.) Where the registrar takes objection to a proposed trade mark, by reason of its similarity to a registered mark, or otherwise, he does not usually advertise the mark. Advertisement is an indispensable preliminary to registration : (Be MeiUe, 24 W. R. 1067.) 4. Opposition. (a) To Original Entry on Register. , A notice of opposition to the registration of a trade mark may be given by sending to the registrar, together with the prescribed fee {i.e., 21. for each trade mark opposed — ^2nd schedule), a written notice of opposition in dupli- cate. The registrar shall send one copy of such notice to the applicant., "Within three weeks of such application, or such further time as the registrar may allow, the applicant may send to the registrar a counter- statement, and if he does not do so shall be deemed to have withdrawn his application. If the applicant sends in a counter-statement, the registrar shall require the opponent to give security for costs, and if such security is not given within fourteen days, or such further time as the registrar may allow, the opposition shall be deemed to be withdrawn. If the opponent dvlj gives security, the registrar shall send him one copy of the counter-statement, and thereupon the case shall be deemed to stand for the determination of the court : (Rule 16.) (5) To Subsequent Entries on Register. Any person may send, with the prescribed fee (i.e., 21. — 2nd Schedule), notice to the registrar of his desire to oppose the registration of any assignee or transmittee, or any alteration of the register. The registrar shall give to the applicant for such registration or alteration the like notice, and may require security for costs in like manner as in the case of a notice of opposition to the original registration of a trade mark. The registrar in such case may, if he think fit, require the parties interested to submit their claiins to the court : (Rule 38.) 5. Registeation. (a) In what Cases. On the expiration of three months from the date of the first appearance of the advertisement in the Trade Maries Journal, the registrar may, if he is satisfied that the applicant is entitled to registration, register the trade mark in respect of the description of goods for which he may be entitled to be registered, and the applicant as the proprietor thereof, on payment of the prescribed fee, i.e., for the registration of : (1) One trade mark 10 (2) Each additional mark after the first, where the same person is registered at the same time for more than one trademark 10 0" (3) One mark in each class after the first, where the same person is registered at the same time for the same trade mark in respect of goods in different classes 2 (Rule 17 and 2nd Schedule.) Where each of several persons claims to be registered as proprietor of the same, or a nearly identical trade mark in respect of the same goods or goods belonging to the same class, the registrar shall use his discretion as to registering Si or any of such trade marks, either unconditionally or on the condition of the introduction of such variatibns (if any) or other- 860 Trade Maries. wise as he thinks fit, or the registrar may, if in any case he thinks it expedient, submit or require the claimants to submit their rights to the court : (Rule 18.) Any person to whom a Shefiield corporate mark (i.e., a Cutlers' Company's mark) legally belongs shall be entitled to have the same mark registered also as a trade mark under this Act in respect of any particular goods or classes of goods in the same manner and upon the same terms and conditions in and upon which he might have registered the same if it were not a Sheffield corporate mark : (T.M.R, Act, 1875, s. 9.) Trjide marks for which application has been made for any particular goods or class of goods specified in the Cutlers' Company Act,. 1860, s. 2, may be registered after the expiration of six weeks after notice given of the application to the Cutlers' Company, and no objection raised: (T.M.R. Act, 1876, s. 9; Rules 51-53.) , ' On the expiration of three weeks from the date of the first appearance of the advertisement of a cotton mark in the Trade Marhs Journal, the registrar may, if he is satisfied that the applicant is entitled to registration, register such mark in respect of the description of goods for which he may be entitled to be registered, and the applicant as the proprietor thereof, on payment of the prescribed fee : (Rule 2 of Feb., 1877.) (6) Date. The date on which the statement relating to the application for registry was received by the registrar shall be deemed to be the date of the registry : (Rule 20.) (c) Mode. Upon registering any trade mark the registrar shall enter in the register the date and such other particulars as he may think necessary, including the name and address of the proprietor : (Rule 2(5.) ■ Registration of cotton marks is usually efEected by depositing a specimen ' of the mark at the Patent Office Museum, South Kensington, and also at the Trade Marks Registry at London and Manchester, ajid the same is the case with other marks incapable of registration in the ordinary way by advertisement in black and white in the Trade Marks Journal. In maxka registered by deposit colour is essential : [Mitchell v. Senry, 43 L. T. Rep. N. S..I96; L. Rep. 15 Ch. Div. 181; Me Robinson, 29 W. R. 31.) 6. Refusal to Rbgisteb. (a) In what Cases. (1) When the trade mark sought to be registered is not a trade mark as ' defined by T. M. R. Act, 1875, s. 10, registration must be refused : [Ex parte Stephens, L. Rep. 3 Oh. Div. 659 ; 24 W. R. 819 ; Be Mitchell, L. Rep. 7d^. Div. 36.) ^ ' ' V (2) Where each of several persons claims to be registered as proprietors of the same trade mark, the registrar may refuse to comply with the claims of any of such persons until their rights have been determined by the court, and the registrar may himself submit or require the claimants to submit in the prescribed manner their rights to the court : (T. M. R. Act, 1875, s. 5 ; and see Rule 18.) (3) Where a trade mark has been already registered in respect of any goods or description of goods belonging to one particular class, and if such mark have been removed from the register, then for five years after the date of such removal, a trade mark identical with such trade mark, or so nearly resembling the same as to be calculated to deceive, shall not, without leave of the court, be registered in the name of another person as pi:oprietor thereof with respect to any goods in that cl^ss : (T. M^ R. Act, 1875, s. 6; rules 19, 33.) Trade Maris. 861 (4) It shall not be lawful to register as part of or in combination with a trade mark any words the exelusiv* use of which would not, by reason of their being ealcnlated to deceive or otherwise, b^ deemed entitled to protection in a court of equity ; or any scandalous desisrns : (T. M. R. let, 1875, s^ 6.) . (5) When' the regis^tion of a trade mark is opposed, the registrar cannot register the mark until the decision of the court has been obtained i [see Opposition.] (6) The registrar shall not, without the special leave of the court, to be given only in cases where the applicant proves his right, in respect of any goods or classes of goods with respect to which a Sheffield corporate mark [i.e., a Cutlers' GonLpany's mark) shall have been assigned and actually used, and of which mark a copy or description or notice of the assigning thereof shall have been delivered or given to the registrar, register a trade mark identical with such Sheffield corporate mark, or so nearly resembling the same as to be calculated to deceive: (T. M. B. Act, 1875, s. 9.) (7) It shall' not be lawful for the registrar to register any person as proprietor of any cotton mark in the second class of the list formed by the Committee of Experts, except in pursuance of an order of the court :. (Bule 62 ; Be Orr-Evnng and Go. (2), 28 W. R. 412.) (6) Certificaie. When an application by any person to register as a trade mark a device, mark, name, word, combination of words, or other matter or thing^ proposed for registration as a trade mark, which has been in use as a trade mark before the passing of the Trade Marks Reg^tration Act, 1875, has been refused,' it shall be the duty of the registrar, on request, and on payment of the prescribed fee (i.e., for certificate of refusal to register one trade mark — 11. ; for certificate of refusal, at the same time, for more than one trade mark, for each additional mark after the first, lOs. — ^2nd schedule), to give to the applicant a certificate of such refusal, and a certificate so granted shall be conclusive evidence of such refusal: (T. M. R. Act, 1876, s. 2.) 7. CoNTiinrAircE of Tbase Mask on Recmsteb. TTnless the registered proprietor of a trade mark pays a contiauance- fee {i.e., 21. — 2nd schedule) before the expiration of fourteen years from the date of registration, the registrar may, after the end of three months from the expiration of such fourteen years, remove the mark from the register, and so from time to time at the expiration of every period of fourteen years : (Rule 30.) If before the expiration of the ssud three months the registered proprietor pays the said fee, together with the additional prescribed fee (i.e., 11. — ^2nd schedule) the registrar may, without remioving such trade mark from the register, accept the said fee as if it had been paid before the expiration of the said fourteen years : (Rule 31.) 8. Restobation of Tbade Maek to Registee. Whefe after the three months from the expiration of fourteen years from the date of registration a trade mark has been removed from the register for non-payment of the prescribed fee, the Commissioners of Patents, or one of them, may, if they are satisfied that it is just so to do, restore such trade mark to the register on payment of the prescribed additional fee (i.e., 2J.— 2nd schedule), and compliance with such con- ditions as they may think just : (Rule 32.) 9. CAifCEiiATioN OF Entry on Registee. The registered proprietor of a trade mark may at any time send to thfr 862 Trade Marks. registrar an application to cancel the entry of such trade mark upon the register; snch application to, be accompanied by the prescribed fee {i.e., 5s. — 2nd schedule) *nd by a declaration made by the applicant, stating his name and address, and that he is the person whose name appears upon the register as the proprietor of the said trade mark ; and thereupon the registrar may, if satisfied of the truth of the statement made by the applicant, cancel the entry of such trade mark : (Rule of Feb. 1878.) IV. PBOCBDUEE IN COURT. 1. DilFINITION OF " COUBT." The court, for the purposes of [the Trade Marks Registration Act, 1875] is . . . the Chancery Division of Her Majesty's High Court of Justice : (Rule 42.) An order of the House of Lords, on appeal, must be made an order of the Chancery Division, to become efEeotive : {Be Orr-Emng and Co., 28 W. R. 412.) 2. In vthat Cases Application Made. (o) If the name of a person who is not for the time being entitled to the. exclusive use of a trside mark in accordance with the Trade Marks Registration Act, 1875, or otherwise in accordance with law, is entered on the register of trade marks as a proprietor of such trade mark. (6) If the registrar refuses to enter on the regpister as proprietor of a traide mark the name of any person who is for the time being entitled to the exclusive use of such trade mark in accordance with the Trade Marks Registration Act, 1875, or otherwise in accordance with law. (c) If any mark is registered as a trade mark which is not authorised to tie so registered under the Trade Maris Registration Act, 1875. {d) If each of several persons claims to be registered as proprietor of the same trade mark : (T. M. R. Act, 1875, s. 5.) 3. Mode of Application. An application to the court {i.e., W the person seeking registration, see Be Simpson, Davies, and Sons, 42 L. T. Rep. N. S. 675 ; L. Rep. 15 Oh. Div. 525), under the Trade Marks Registration Act, 1875, and the rules, may, subject to rales of court under the Supreme Conrt of Judicature Act, 1875, be made by motion, or by application in chambers, or in such other manner as the court may direct : (Rule 43.) Where the registrar refuses to comply with the claims of any persons until their rights have been determined by the court, the manner in which the rights of such claimants may be subihitted by the registrar, or, if the registrar so reqjiire, by the claimants to the court shall, unless the court ^otherwise order, be by a special case ; and such special case shall be filed and proceeded with in like manner as any other special case submitted to the court, or in such other manner as the court may direct : (Rule 44 ; Ex parte Orimshaw, W. N. 1877, p. 24.) The special case may be agreed to by the parties, or, if they dififer, may be settled by the registrar : (Rule 45.) Although a special case is directed by the rules as above stated, that course of proceeding is practically obsolete, and the proper course in all cases is for the opponent to apply to the judge by summons in chambers for a direction as to the manner in which the case shall be tried ; upon which the usual practice (at the Rolls) is for the applicant to be directed to apply for registration by a summons, to be adjourned into court. In some c^es a motion may be directed : {Be Sinvpson, JDavies, and Sons, 42 L. T. Rep. N. S. 675 ; L. Rep. 15 Oh. Div. 525.) Trader Marks. ■ 863 4. Oedinakt Forms of Application. (a) By Applicant for Registration. (1) To direct the registrar to proceed with the application, notwith- staading the opposition of the registrar, whether based on — (i.) A contention that the mark is not within the definition in the Trade Marks Registration Act, 1875 {Ex parte Stephens, L. Rep. 3 Oh. Div. 659 ; Be Barrows, L. Rep. 5 Ch. Div. 353) ; or (ii.) A contention that the mark is too similar to a mark abeady on the register {Be Hargreaves, L. Rep. 11 Oh. Div. 669) ; or (iii.) A contention that the mark, being a cutlery mark, is too similar to a SheflSeld corporate mark ; or (iv.) A relegation of the mark, being a cotton mark, by the Manchester Committee of Experts, to the second class, or B. list : {Orr- Ewing v. Begistrar of Trade Marks, L. Rep. 4 App. Gas. 479.) Two clear days' notice must be giTen to the registrar, and the appli- cation must be supported* by an affidavit by the applicant, stating the ^ facts : {Ex parte Stephens, 24 "W. R. 819.) (2) To direct the registrar to proceed with the application, notwith- standing the opposition of a person aggrieved, whether based on — (i.) A contention that the mark is common to the public or the trade ; pr (ii.) A contention that the mark is too similar to the opponent's registered mark ; or (iii.) A contention that the mark, being a cutlery mark, is too similar to the opponent's Sheffield mark. (3) To obtain leave for the registrar to alter a registered trade mark ; but such alteration must not extend to any one or more of the essential particulars : (Rule 35.) (6) By Opponent or Person Aggrieved. (1) To direct the registrar to remove a registered trade mark from the register, for amy of the reasons in (as) (2) supra i {Be Hyde' a/nd Co., L. Rep. 7 Ch. Div. 724; Base v. Evans, 48 L. J. 618, Ch.) (2) To direct the registrar to remove a registered trade mark from the register on the ground, after the expiration of five years from the date of registration, that the registered proprietor is not engaged in any business concerned in the goods within the same class as the goods with respect to which a trade mark is registered : (Rule 34.) (3) In some eases applications have been made to restrain the applicant from proceeding with his application for registration for reasons in (a) (2), svp : {Be Farima, 26 W. R. 261 ; 27 lb. 456 ; Be Worthington, L. Rep. 14 Ch. Div. 9) ; but it has been decided that such applications, and there- fore, as it seems, also applications to limit the registration, if granted, in respect of the articles for which it is registered, or the mode of user, and applications to refuse leave to the registrar to alter a registered trade mark, are irregular, as the applicant for registration should take the initiative : {Be Simpson, Bdvies, and Sons, 42 L. T. Rep. N. S. 675 ; L. Rep. 15 Ch. Div. 525.) 5. POWBES OF THE COUBT. The court may either refuse an application to rectify the re^ster, or it ma,y, if satisfied of the justice of the case, make an order for the rectification of the register, and may award damages to the party aggrieved. The court may, in any proceeding under the Trade Marks Registration Act 1875 s 5, decide any question as to whether a mark is or is not such a trade mark as is authorised to be registered under that Act, also any question relating to the right of any person w;ho is a party to such proceeding to have his name entered on the register of trade marks, or to 864 Trade Mwrhs — Trannfer. have the uame of some other person removed from such register, also any- other (Question that it may be necessary or expedient to decide for the rectification of the register.. The court may direct an issue to be tried for the decision of any question of fact which may require to be decided for the purposes of the JTrade Marks Registration Act, 1875, s. 5 : ,(T. M. R. Act, 1875, s. 5.) . The court cannot order a trade mark to be registered without the pleliiniuarv advertisement being inserted in the Trade Marhs Jov/mal : {Be Meikl'e, 24 W. R. 1067.) Where the applicant has used several marks differing only in non- essential particulars, representative registration may be gpranted: {Be ■Borrows, L. Rep. 5 Oh. Div. 353 ; Be Brook, 26 W. R. 791.) Where the applicant has used his trade mark in a limited manner, regis- tration may be granted subject to limitations as to the mode, place, &c., of the user, to be embodied in a note entered in the register : {Be WMteley, 43 L. T. Rep. N. S. 627 ; Be Syhes, 43 L. T. Rep. N. S. 626.) 6. Costs. The only costs which can be given by the court on an opposed appli- cation for registration are thp costs of the proceedings subsequent to ' security for costs being given by the opponent under role 16 : {Be Brcmd/reth, L. Rep. 9 Oh. Div. 618.) When an application is opposed, the general rule is that costs follow the event, and this is so when a registered mark is removed from the register by parties who allowed it to be placed there without opposition : (Be Hyde and Co., L. Rep. 7- Oh. Div. 724.) If an applicant' takes advantage of the strict letter of the Trade Marks Registration Act, 1876, to obtain registration of a mark objectionable in some respect, the applicant, though successful, wiU have to pay the costs of an opposed application to the court : (Be Maignen, 28 W. R. 759.) In cases where the registrar is debarred from registering without the leave of the court, e.g., where the Committee of Experts have placed a cotton mark in the second class, he is entitled to his costs of appearing on the application, whatever the issue maybe : [Be Orr-JESwing and Co. (2), 28 W. R, 412.) It seems that in ordinary cases where the registrar has refused registration, the court wiU not give costs against him, though his decision is reversed, and although he has unsuoeessrally appealed from the judge's decision : {Be Botherham, 43 L. T. Rep. N. S. 1 ; L. Rep. 14 Ch. Div. 585.) 7. Notice to REGiSTfeAS. Whenever any order has been made rectifying the register, the ^ourt -shall by its order direct that due notice of such rectification be given to the registrar. The registrar, on receiving notice, will forthwith rectify the register in accordance with the order : (T. M. R. Act, 1875, s. 5, ana Rule 36.) TRANSFER. I. GENERAL POWER, n. PROM ONE DIVISION TO ANOTHER. 1. Wheee Action, &o., Commencsd in Wbong Division. (o) AppUcation. , (6) Effect on Previous Proceeclmgs. 2. In otheb Cases. (a) When Ordered. (b) How Made. Transfer. 865 (1) By Lord Chancellor. (2) By Court where Action Pending. (3) By Court of Appeal. (4) By Judge after Winding-up, or Administration Order. (5) By Order for Trial by Jury. in. FROM ONE JUDGE OP CHABCEET DIVISION TO ANOTHER. rV. FBOM AND TO DISTRICT REGISTRIES. 1. From District Rboistbt to London. (a) By Defendant as of Right. (b) In Other Cases. (c) Transmission of Documents and Copies of Entries. (d) Proceedings after Transfer. 4. Fbou London to District Rbqistrt. V. FROM AND TO COUNTY COURT. 1. From Coitntt Court to High Coitet. (o) By Order of the Sigh Court. (1) In Eqpity Cases. (2) In Case of Counter-claim not within Jurisdiction. (3) In other Cases. (i>) By Order of the Cownty Court. 2. From Hiqh Court to County Court. I. GENEEAL POWEB. Any canse or matter may at any time, and at any stage thereof, and either with or without appUcaticm from any of the parties thereto, be transferred by such authority and in such manner as rules of court may direct, from one division or judge of the High Court of Justice to any other division or judge thereof, or may by the like authority be retained in the division in which the same was commenced, although such may not be the proper division to which the same cause or matter ought, in the first instance, to have been assigned : (J. A. 1873, s. 36.) n. FROM ONE DIVISION TO ANOTHER. 1. Wheke Action, &c. commenced in Weong Division. (a) Application. If any plaintiff or petitioner shall at any time assign his cause or matter to any division of the said High Court to which, according to the rules of court or the provisions of the principal Act or this Act, the same ought not to be assigned, the court, or any judge of such division, upon being informed thereof, may, on a summary application at any stage of the cause or matter, direct the same to be transferred to the division of the said court to which, according to such rules or provisions, the same ought to have been assigned, or he may, if he think it expedient so to do, retain the same in the division in which the same was commenced : (J. A. 1876, s. 11, sub-s. 2.) A summary application is by summons, not ex parte : [Blewitt v. Bowling, W. N. 1875, p. 202.) When issues of fact in a Chancery action are to be tried by a jury and a judge of another division, the action ought to be transferred to the latter division: {Clements v. Norris,W. N. 1878, p. 4.) The trial by jury of the whole action itself operates as a transfer : (see post, 2 (6) (6.) A petition for a charging order under 23 & 24 Vict. c. 127, vrill be ordered to be transferred to the judge who presided at the trial: {Owen V. Henshaw, W. N. 1877, p. 269.) An action brought in a common law division m respect of what was, substantially, a breach of an order of the Chancery Division, was trans- ferred to the Chancery Division : {Johnson v. Moffat, W. N. 1876, p. 21.) 866 Transfer. Where a plaintifE claimed under an alleged will which had not been proved, the Master of the Bolls declined to grant probate, and ordered the action to stand oyer for probate proceedings to be taken : (Pimiey V. BttJif, L. Rep. 6 Oh. Div. 98.) When an action assigned to the Admiralty Division was not within the old jurisdiction of the Court of Admiralty, the judge refused to retain it : {The Seaham, 40 L. T. Rep. N. S. 38.) See also, as to retaining an action. The Pulica, W. N. 1880, p. 172. (6) Effect on previous Proceedings. All steps and proceedings whatsoever taten by the plaintifE or petitioner or by any other party in any such cause or matter, and all orders made therein by the court or any judge thereof before any such transfer, shall be valid and efPeetual to all intents and purposes in the same manner as if the same respectively had been taken and made in the proper division of the said court to which such cause or matter ought to have been assigned : (J. A. 1876, s. 11, sub-s. 2.) 2. In other Cases. (a) When Ordered. A transfer will only be ordered when it is clearly advantageous : {Cannot v. Morgan, L. Rep. 1 Ch. Div. 1.) An application to transfer from the Chancery Division to the Queen's Bench Division, on the ground that the plaintifE had not paid the costs of an action commenced in the latter division, was refused : {Id.) Where in an action commenced in a common law division a party may become entitled to relief, to efEect which the Chancery Division has the only requisite machinery, the action will be transferred to the Chancery Division : {Eolloway v. TorJc, L. Rep. 2 Ex. Div. 333; 26 W. R. 403.) But a defendant cannot, by counter-claiming for a matter within the specially assigned jurisdiction of the Chancery Division, give himself a right to insist that an action commenced in a common law division slmll be transferred to the Chancery Division {Storey _ v. Waddle, L. Rep. 4 Q. B. Div. 289), nor can the right to such a transfer be obtained by commencing a cross action in the Chancery Division if the common law division can do complete justice in its own action : {Standard Discount Company v. Barton, 37 L. T. Rep. N. S. 681.) (6) How Made. (1) By Lord Chancellor. Any action or actions may be transferred from one division to another of the High Court .... by an order of the Lord Chancellor, provided that no transfer shall be made from or to any division without the consent of the president of the division : (O. LI., r. 1.) Where all parties consent the Lord Chancellor directs the transfer on written application to his secretary ; in other cases the application must be made in court : (L. Rep. 1 Ch. Div. 41.) The consent of the Lord Chancellor will be signed on the order by his principal secretary, and stamped with his official stamp : (Seton, 320.) The Lord Chancellor has no power to stay proceedings : {Be Sharp, Seton, 320.) (2) By Court where Action Pending. Any action may, at any stage, be transferred from one division to another by an order made by the court or any judge of the division to which the action is assigned : Provided that no such transfer shall be made without the consent of the president of the division to which the action is proposed to be transferred : (O. LI., r. 2.) Transfer. 867 ■A- judge of one di-vision cannot be transferred to another division nnder this rule : (Chapman v, Beal Property Trust, L. Rep. 7 Ch. Div. 732.) The application must be made on notice to the other parties : (Humphries v. Edwards, 45 L. J. 112, Ch.) A judge of the Queen's Bench, the Common Pleas, oi- the Exchequer Division, when sitting at chambers, may transfer an action from any other of such divisions to the Chancery Division : (Hillman v. Mayhew, L. Kep. 1 Ex. Div. 132.) .Aay action transferred to the Chancery Division or the Probate Division, shall, by the_ order directing the transfer, be dij-ected to be assigned to one of the judges of such division to be named in the order : (O. LI., r. 3.) The consent of the president is not a condition precedent, but the order is not effectual until such consent is obtained : {Humphreys v. Edwards, 45 L. J. 112, Ch. ; Holmes v. Harvey, 35 L. T. Rep. N. S. 600; 25 W. R. 80.) (3) By Court of Appeal. In case of refusial to transfer, the Court of Appeal may order the transfer: (Holloway v. YorTc, L. Rep. 2 Ex. Div. 333; 25 W. R. 403; but it is doubtful whether the consent of the president of the court below must not be obtained : {Storey v. Waddle, L. Rep. 4 Q. B. Div. 289; 27W.R. 289.) (4) By Judge after Winding-np or Administration Order. When an order has been made by any judge of the Chancery Division for the winding-np of any company under the Companies Acts 1862 and 1867, or for the administration of the assets of any testator or intestate, the judge in whose court such winding-up or administration shall be pending shall have power, without any fiither consent, to order the transfer to such judge of any action pending in any other division brought or continued by or against such company, or by or against the executors or administrators of the testator or intestate whose assets are bemg so administered, as the case may be : (O. LI., r. 2a, June, 1876.) Where a company was being wound-up in the Chancery Division, and the business was being carried on by the liquidator, against whom an action was brought in the Exchequer Division for injuries sustained through the negligence of the company, a motion to transfer the action to the Chancery Division was refused, the plaintifE undertaking to amend his writ by claiming against the liquidator personally, the plaintiff's rights against the company in the winding-up not beiag prejudiced : {Be Thames Ferry Company, 40 L. T. Rep. N. S. 422 ; 27 W. R. 503.) Proceedings by a loc^ board in the Queen's Bench Division to enforce an award against an executor may be transferred, but the court cannot- give leave to the board to be admitted as a creditor for the amount claimed : {West v. Downman, W. N. 1879, pp. 13, 84; L. Rep, 14 Ch. Div. Ill, 114.) A judge of the Chancery Division, in whose court an administration action is pending, can order the transfer to himself of such actions only, brought in other divisions against the executor of the person whose estate is being administered, as are brought against him qua executor : {Chapman V. Jfasom, 40 L. T. Rej». K S. 678.) ,. . , Bacon, V.C. refused to order that, after transfer, proceedings in the action should be stayed : {Me Tvmrns, 38 L. T. Rep. N. S. 679 ; 47 L. J. 831, Ch. ; 26 W. R. 692) ; but Jessel, M.R. has by the same order of transfer ordered a stay of proceedings : {Be Stubbs, L. Rep. 8 Ch. Div. 154.) K K K 2 868 Transfer. The application may be made by motion ex parte: (Be Landore Siemens Steel Company, Jj. Rep. 10 Ch. Div. 489 ; 40 L. T. Rep. N. S. 35; 27 W. R. 304; Meld t. Field, W. N. 1877, p. 98; WhAtaleer v. BoUnson, W. N. 1877, p. 201.) Where an order nisi to sign judgment had been obtained in the creditor's action, leave was given to prove for the amount in the administration action: {Be Stubhs, L. Rep. 8 Oh. Div. 154; 47 L. J. 671, Oh.) (5) By Order for Trial by Jury. When an action, commenced in the Chancery Division, has been tried by jury before one of the judges of a common law division, it is thence- forth transferred to the division to which the judge belongs, and an application for a new trial must therefore be made to a divisional court of that division. But this does not apply to an action in which an issue has been directed by a judge of the Chancery Division. The action in that case stm remains attached to the Chancery Division : {Jones v. Baxter, L. Rep. 5 Ex. Div. 275 ; 28 W. R. 817 ; and see New Teiai.) III. FROM ONE JUDGE OF CHANCERY DIVISION TO ANOTHER. Any action or actions may be transferred .... from one judge to another of the Chancery Division by an order of the Lord Chancellor : (O. LI., r. 1.) Where an action was brought and judgment given in the court of Malins, V.C., for administration of A.'s personalty and for an inquiry whether his moiety of certain realty had become assets of his partnership business with B., and B. brought an action in the Rolls to wind up the partnership, Cairns, L.C. ordered the second action to be transferred to Malins, V.O., but refused to make any consolidation order : {Davis v. B(ims,48L. J. 40, Ch.) In the Chancery Division, a transfer of a cause from one judge to another may by the same or a separate order be ordered to be made, or to be deemed to have been made, for the purpose only of trial or hearing, and in such case the original and any further hearing shall take place before the judge to whom the cause has been transferred, but all other pro- ceedings therein, whether before or after the hearing or trial of the cause shall be tiiken and prosecuted in the same manner as if such cause had not been transferred from the judge to whom it was assigned at the time of transfer, and as if such judge had made the decree or judgment, if any, made therein, unless the judge to whom the cause is transferred shall direct that any further proceedings therein before or after the hearing or trial therein shall be t^en and prosecuted before himseU or before an official or special referee : (O. LI., r. 1a., June, 1877.) Actions transferred to Mr. Justice Pry are, until further order, deemed to be 80 transferred only for the purpose of trial or hearing : (Order of L. C, 19th June, 1877, W. N. 1877, p. 307.) A Vice-Chancellor from whom a cause has been transferred has no power to direct a summons to be heard before Mr. Justice Pry : {Lloyd v. Jones, L. Rep. 7 Ch. Div. 390; 37 L. T. Rep. N. S. 624; 47 L. J. 470, Oh. ; 26 W. R. 262.) The Court of Appeal cannot, even with the consent of both parties and both judges, order a transfer of an action or petition from one judge of the Chancery Division to another: [Be EJutley, L. Rep. 1 Ch. Div. 11; 45 L. J. 79, Ch. ; Be Boyd's Trusts, L. Rep. 1 Ch. Div. 12.) Transfer. ' 869 IV. PROM AND TO DISTRICT REGISTRIES. 1. Peom Distbict Registry to London. (a) By Defendant as of Bight. (1) In What Cases. In any action which would, nnder the .... rules, proceed in the district registry, any defendant may remove the action from the district repstry as of right in the cases, and within the times, following : Where the writ is specially indorsed under Order III., r. 6, and the plaintiff does not within four days after the appearance of such defenda nt g ive notice of an application for an order against him under Order Xlv . [see Judgment] ; then such defendant may removB the action as of right at any time after the expiration of such four days, and before delivering a defence, and before the expiration of the time for doing so : Where the writ is specially indorsed and the plaintiff has made such application as in the last paragraph mentioned, and the defendant has obtained leave to defend in manner provided by Order XIV. ; then such defendant may remove the action as of right at any time after the order giving him leave to defend, and before delivering a defence, and before the expiration of the time for doing so : Where the writ is not specially indorsed any defendant may remove the action as of right at any time after appearance, and before delivering a defence, and before the expiration of the time for doing so : (O. XXXV., r. 11.) (2) Application. Any defendant desirous to remove an action as of right under the last preceding rule may do so by serving upon the other parties to the action, and delivering to the district registrar, a notice, signed by himself or his solicitor, to the effect that he desires the action to be removed to London, and the action shall be removed accordingly: (O. XXXV., r. 12.) (3) Power to Restrain notwithstanding Notice of Formal Defendant. If the court or a judge shall be satisfied that the defendant giving such notice is a merely formal defenda,nt, or has no substantial cause to interfere in the conduct of the action, such court or judge may order that the action may proceed in the district registry notwithstanding such notice : (O. XXXV., r. 12.) (6) In other Gases. Any party to an action in which a writ of summons shall have been issued from any such district registry shaU be at liberty at any time to apply, in such manner as shall be prescribed by rules of court, to the High Court, or to a judge in chambers of the division of the said High Court to which the action may be assigned, to remove the proceedings from such district registry into the proper oflce of the said High Court; and the court or judge may, if it be thought fit, grant such apphcation : (J. A. 1873, s. 65.) ,. , , In any case not provided for by the last two precedmg rules [see sup. (a)l any party to an action proceeding in a district registry may apply to the court or a judge, or to the district registrar, for an order to remove the action from the district registry to London, and such court judge, or registrar, may make an order accordingly, if satisfied that there is s^cient reason for doing so, upon such terms, if any, as shaU seem just : (O. XXXV., r. 13.) „ ^ .,. 4- ■ ii, A motion in the court in London stops aU further proceedmgs m the district registry : {Dyson v. Pickles, 27 W. R. 376.) 870 Transfer. (c) Tra/tismission of Documents and "Copies of Entries. Whenever any proceedings are removed from the district registry to London, the district registrar shall transmit to the proper officer of the High Court of Justice all original documents (if any) filed in the district registry ; and a copy of all entries in the books of the district registry of the proceedings in an action : (O. XXXV., r. 14.) And in such case the proceedings and such original documents, if any, as may be filed therein shall upon receipt of such order be transmitted by the district registrar to the proper office of the said High Court : (J. A., 1873, s. 65.) ' (d) Proceedings after Transfer. [Where a transfer is ordered] the said action shall thenceforth proceed ia the said High Court, in the same manner as if it had been originally commenced by a writ of summons issued out of the proper office in London,- or the court or judge, if it be thought right, may thereupon direct thai the proceedings may continue to be taken in such district registry : (J. A., 1873, s. 65.) 2. Tkom London to District Registet. ■ Any^ party to an action proceeding in London may apply to the court or a judge for an order to remove the action from London to any district registry, and such court or judge may make an order accordingly, i£ Satisfied that there is sufficient reason for doing so, upon such terms, if any, as shall seem just : (O. XXXY., r. 13.) y. PROM AND TQ COUNTY COURTS. 1. Fkom Cotjnty Couet to High Cofet. (a) By Order of the High Court. ' (1) In Equity Cases. Any [judge of the Chancery Division], on the application at chambers ' of any party to any suit or matter pendiag under this Act, shall have power, then and there, or, if he shall think fit, after hearing a summons served upon the other party or parties, to transfer the same to the . . . Chancery [Division] upon such terms, if any, as to security for costs or otherwise, as he may think fit : (28 & 29 Vict. c. 99, s. 3.) Where a plaint had been filed in a County Court against five defen- dants, oi whom one only, who was in the plaintiff's interest, had a resi- dence' in the district, the plaint was ordered to be transferred : (Baker v. - Wait, L. Rep. 9 Eq. 103.) Where any order is made by the 'High Court, or any division or judge thereof, for the transfer of any proceeding from the County Court to the High tJourt under the 90th section of the Supreme Courts of Judicature Act, 1873 [Bee post (2)] or under sect. 3 of the County Court Acts, 1865, then, subject to such order, the record in such proceedings shall be trans- mitted by the registrar in the following manner : The registrar shall make and certify under his hand office copies of all entries of record in the books of the court, and shall forthwith transmit by post or otherwise such copies, together with all such documents as shall have been filed in the action, to the proper officer of the High Court: (C. C. R., 1875, O. 20, r. 7.) - Such copies and the cost of transmission shall be paid for by the parties on whose application the transfer has been made, and the registrar may require deposit of the cost of making such copies and transmissions before making or transmitting the same : (C. C. R., 1875 ; O. 20, r. 7.) Transfer. ' 871, (2) In Case of Counter-claim not within Jurisdiction. Where, in any proceeding before any such inferior court, any defence or counter-claim of the defendant involves matter beyond the jurisdiction of the court, such defence or counter-claim shall not affect the competence or the duty of the court to dispose of the whole matter in controversy so far as relates to the demand of the plaintiff and the defence thereto; but no relief exceeding that which the court has jurisdiction to administer shall be given to the defendant upon any such counter-claim. Provided always, that in such case it shall be lawful for the High Court, or any division or judge thereof, if it shaU be thought fit, on the applica- tion of any party to the proceeding, to order that the whole proceeding be (transferred from [such iaferior court to the High Court, or to any division thereof ; and in such case the record in such proceeding shall be transiiiitted by the registrar, or other proper officer, of the inferior court to the said High Coitrt ; and the same shall thenceforth be continued and prosecuted in the said High* Court as if it had been originally commenced therein : (J. A., 1873, s. 90 ; and see C. C. B,., 1875, O. 20, r. 7, cited sitp. (1).) An inferior court has jurisdiction to entertain a claim set up by way of counter-claim, although it is in respect of matters which arose beyond its local jurisdiction ; but the power to grant relief in respect of such counter-claim is limited to the same amount which the plaintiff has claimed in the action : {Bavis v. Flagstaff Silver Mining Company of Utah, L. Rep. 3 C. P. Div. 228 ; 38 L. T. Rep. BT. S. 769 ; 47 L. J. 503, C. P.; 26W.R. 431.) (3) In Other Cases. No plaint entered in any [County] Court .... shall be removed or removable from the said court into the [High Court] by any writ or process, unless the debt or damage claimed shsdl exceed 51., and then only by leave of a judge of the [High Court] in cases which shaU appear to the judge fit to be tried in [the High Court], and upon such terms as to payment of costs, giving security for debt or costs, or such other terms as he shall think fit : (9 & 10 Yict. c. 108, s. 38.) Any action commenced in a County Court for a claim not exceeding 61. may be removed by a writ of certiora/ri into [the High Court] if such . ^ . . court or a judge of [the High Court] shall deem it desirable that the cause shall be tried in [the High Court], and if the party applying for such writ shaU give security, to be approved by one of the masters of [the Supreme Court], for the amount of the claim, and the costs of the trial, not exceeding in all 1001., and shall further assent to such terms, if any, as the [High Court] or judge shaU think fit to impose : (19 & 20 Vict, c. 108, s. 38 ; and see Cektioeabi.) If in any action of contract the plaintiff shaU claim a sui^ exceeding 20Z., or if in any action of tort the plaintiff shaU claim a sum exceeding 5Z., and the defendant shaU give notice that he objects to the action being tried in the County Court, and shaU give security, to be approved of by the registrar, for the amount claimed, and the costs of trial in [the High Court] not exceeding in the whole the sum of 150?., aU proceedings mthe Cojmty Court in any such action shaU be stayed : (19 & 20 Vict. c. 108, s. 39.) (6) By Order of the Cownty Court. If during the progress of any suit or matter it shaU be made to appear to the court that the subject matter exceeds the Umit in point of amount to which the jurisdiction of the County Courts is hereby limited, it shaU not affect the validity of any order or decree already made, but it shaU be 872 Transfer. the duty of the court to direct the said suit or matter to be transferred to the [Chancery Division], and therenp'on the said suit or matter shall proceed in such one of the [judges'] courts as the Lord Chancellor may by general order direct, and such [judge] shall have power to regulate the whole of the procedure in the said suit or matter when so transferred. Provided always that it shall be lawful for any party to apply to such Sjjudge of the Chancery Division] at chambers for an order authorising and irecting the suit or matter to be carried on and prosecuted in the County Court notwithstanding such excess in the amount of the limit to which jurisdiction in the matter is hereby given to the County Courts, and the [judge], if he shall deem it right to summon the other parties or any of them to appear before him for that purpose, after hearing such parties, or on default of the appearance of all or any of them, shall have full power to make such order : (28 & 29 Vict. c. 99, s. 9.) If during the progress of any action upon any claim or title, or to obtain any relief, remedy, or redress which might respectively before the 1st Nov. 1875, have been the subject of a plauit or petition in equity, it shall be made to appear that the subject matter of the plaintiff's claim exceeds the amount to which the jurisdiction of the court is limited, the judge, if requested, may forthwith make an order for the transfer of the action to the Chancery Division of the High Court of Justice, . but, if not so requested, the order shall not be made before fifteen days at least : (C. C. B. 1875, O. 20, r. 5.) The registrar shall make and file a copy of such order, and shall transmit the order by post or otherwise, to the proper of&cer of the Chancery Division of the High Court of Justice, and shall also send notice, by post or otherwise, of the fact, to all parties and persons entitled to be served with a copy of the order : (C. CT B. 1875, O. 20, r. 5.) If during the progress of taking any accounts or making any inquiries in any action for any claim, right, redress, or remedy which might before the commencement of the Supreme Court of Judicature Act, 1873, have been enforced in equity, it shall appear to the registrar that the subject matter of the action exceeds the amount to which the jurisdiction of the court is limited, he may, if he thinks fit, proceed with and complete the particular account or inquiry, but he shall at the next sitting of the court present a certificate of the state of the proceedings in the action, and if the judge shall be of opinion that such excess exists, he shall make an order of transfer as under the last preceding rule : (C. 0. B. 1875, O. 20, r. 6.) Where a plaintiff commences an action in the County Court, which at the hearing is transferred to the High Court of Justice because the subject-matter is in amount beyond the jurisdiction of the County Court, he must pay the costs of the hearing in the County Court under amy circumstances : {Ward v. Wyld, L. Bep. 5 Ch. Div. 779 ; 37 L. T. Eep. N. S. 68 ; 25 W. B. 866.) 2. Feom High Coitet to County Cottet. The provisions contained in ... . the seventh, eighth, and tenth sections of the County Courts Acts, 1867, shall apply to all actions com- menced or pending in the said High Court of Justice in which any relief is sought which can be given in a County Court : (J. A. 1873, s. 67.) Where, in any action of contract brought or commenced in [the High Court of Justice] the claim endorsed on the writ does not exceed fifty pounds, or where such claim, although it originally exceeded fifty pounds, is reduced by payment, an admitted set-off or otherwise, to a sum not exceeding fifty pounds, it shall be lawful for the defendant in the action, within eight days from the day upon which the writ shall have been served Transfer. 873 upon Mm, if the whole or part of the demand of the plaantifE be contested, to apply to a judge at chambers for a summons to the plaintiff to show cause why such action should not be tried in the County Court, or one of the County Courts, in which the action might have been com- menced ; and, on the hearing of such summons, the judge shall, unless there be good cause to the contrary, order such action to be tried accordingly, and thereupon the plaintiff shall lodge the original writ and the order with the registrar of the County Court mentioned in the order, who shall appoint a day for the hearing of the cause, notice whereof shall be sent by post or otherwise by the registrar to both parties or their [solicitors], and the cause, and all proceedings therein, shall be heard and taken in such County Court as if the action had been originally com- menced in such County Court ; and the costs of the parties in respect of proceedings subsequent to the order of the judge of the Superior Court shall be allowed according to the scale of costs in use in the County Courts, and the costs of th« proceedings previously had in the Superior Court shall be allowed according to the scale in use in such latter court : (30 & 31 Vict. c. 142, s. 7.) A claim for 50i., and interest until payment or judgment, is a claim exceeding 601 : [Insley v. Jones, L. Rep. 4 Ex. Div. 16 ; 48 L. J. 222, Ex.) When the amount is reduced below 50Z. by payment after action brought, there is no power to transfer : (Osborne v. Homburg, L. Rep. 1 Ex. Div. 48 ; Foster v. Usherwood, L. Rep. 3 Ex. Div. 1 ; 47 L. J. 30, Ch. ; 26 W. R. 91.) See also, as to what constitutes a claim for 501., Verheeck v. Bwhnex, 70 L. T. 26. Where any suit or proceeding shall be pending in the Chancery g Division], which suit or proceeding might have been commenced in a ounty Court, it shall be lawful for any of the parties thereto to apply at Chambers to the judge to whose court the said suit or proceeding shall be attached to have the same transferred to the Coimty Court, or one of the County Courts, in which the same might have been commenced, and such judge shall have power upon such application, or without such application if he shall think fit, to mate an order for such transfer, and thereupon such suit or proceeding shall be carried on in the County Court to which the same shall be ordered to be transferred, arid the parties thereto shall have the same right of appeal that they would have had had the suit or proceeding been commenced in the County Court : (30 & 31 Vict. c. 142, s. 8.) It shall be lawful for any person against whom an action for mabcious prosecution, illegal arrest, illegal distress, assault, false imprisonment, libel, slander, seduction, or other action of tort, may be brought in [the High Court of Justice], to make an affidavit that the plaintiff has no visible means of paying the costs of the defendant should a verdict be not found for the plaiutiffi, and thereupon a judge of the court in which the action is brought shall have power to make an order that, unless the plaintiff shall, within a time to be therein mentioned, give full security for the defendant's costs to the satisfaction of one of the masters of the said court, or satisfy the judge that he has a cause of action fit to be prosecuted in the [High] Court, aU proceedings'in the action shall be stayed, or, in the event of the pkintiff being unable or unwdLng to give such security, or failing to satisfy the judge as aforesaid, that the cause be remitted for trial before a County Court to be therem named; a,nd thereupon the plaintiff shall lodge the original writ and the order with the registrar of such County Court, who shaUappomt a day for the hearmg of 874 , Trams fer.. the ca,use, notice whereof shall be sent by post or otherwise by the- registrar to both parties, or their [solicitors] ; and the .County Court so named shall have all the same powers and jurisdiction with respect to the. cfause as if both parties had agreed, by a memorandom signed by them, that the said County Court should have, power to try the said action, and the same had Ijeen commenced by plaint in the said Cormty Court ; and the cofets of the parties in respect of the proceedings subsequent to the order of the judge of the [High] Court shall be allowed according to the scale of costs in use in the County Courts, and the costs of the proceed- ings in the [High] Court shall be allowed according to the scale m use. jn such latter court : (30 & 31 Yiet. c, 142, s. 10.) The form of order is given in Schedule H. 43 to the Rules of April, 1880. Any judge sitting at chambers has power to make the order for security, but such order may be reviewed by the court : {Owens v. Woosman, ii. Kep. 3 Q. B. 160.) Where a plaintiff failed to give security, but failed to lodge the writ and order with the registrar, it was held that the action remained in the High Court, • and that the court could extend the time for giving security : (Welply V. Buhl, L. Rep. 3 Q. B. Div. 80, 253 ; 38 L. T. Rep. N. S. 114; 26 W. E. 300.) . ... When an action has been transferred under this section the court in which it was originally brought has no further jurisdiction, and cannot tax , the costs : (Moody v. Stewa/rd, L. Rep. 6 Ex. 35.) As to lodging the order, writ, and statement with the registrar, see C. C. R. 1876, O. 20, r. 1 ; and as to receiving the pleadings, see Johnson V. Palmer, L. Rep. 4 0. P. Div. 258.) When in any actioji of contract brought in [the High Court] the claim indorsed on the writ does-not exceed SOI., or when such claim, though it originally exceeded 50Z. is reduced by payment into court, payment, an admitted set-ofE, or otherwise, to a sum not exceeding 50^., a judge of [the High Court] on the application of either party, after issue joined, may, in his discretion, and on such terms as he shall thbik fit, order that the cause shall be tried in any County Court which he shall name : (19 & 20 Vict. c. 108, s. 26.) Thereupon the ^plaintiff shall lodge with the Regfistrar of [the County] Court such order and the issue : (Jd.) As to- the proceedings in the County Court, see the same section and C. C.R. 1876, O. 20,rr. 1-3. If no terms are imposed by the order, the parties are entitled to a trial by jxaj: {Ford v. Taylor, L. Rep. 3 C. P. Div. 21; 37 L. T. Rep. N. S. 431 ; 47 L. J. 116, C. P. ; 26 W. R. 170.) After [the hearing in the County Court] the registrar shall certify the result to the [Central Office], and judgment in accordance with such certificate shall be signed in [the High Court] : (19 & 20 Vict. c. 108,. s. 26.) And see CouifTT Oottets, II. Trial. 875 TRIAL. I. NOTICE OP TEIAL. 1. When (tIvbn. (a) By Plaintiff. (6) By Defendwnt. 2. To Speoipt Mode op, Teiax,. 3. To State whether fob Trial of Action or Issues. ' 4. FOBM. 5. How MANY Days Notice. 6. Service. 7. Proof op Service [see Judgment, I., 5]. 8. For what Sittings it Operates. (a) In London or Middlesex, (h) Elsewhere. 9. Countermanding. 10. When it CeabeS to have Kppect. II. CROSS NOTICE FOE JURY. 1. By Dependant. 2. By Plaintcfp. . m. CHANGING MODE OF TEIAL. IV. ENTET FOE TEIAL. 1. When Made. 2. By Whom Made. (a) In Iiondon or Middlesex. (b) Elsewhere. 3. Whebe Made. (a) Trials iy Judge Alone. (1) In London. (2) In District Eegistry. (b) Trials by Judge and Jwry. (c) Before Official Retferee [see Eeferbes]. 4. How Made. (a) Form of Entry. (6) Certificate of Master, Beqitest, ^c. ^ (c) PreUmmary List Where Jwry Trial Entered with District Registrar. (d) Delivering Copies of Plead/i«igs. (e) Marlcing Cause for Jwry Trial at Defendant's Instance. (f) Lists for Trial. (1) In London or Middlesex. (2) At the Assizes. (3) Adding Cases for Jury Trial at Defendant's Instance. V. MARKING "SHOBT" [see Short Cause]. VI. WITHDRAWAL OF AND EXPUNGING CASES. Vn. MANNEE OF TEIAL. 1. Op Action. 2. Op Issues. 3. Op Questions of Fact in Different Ways ok One bbpoee Another. 4. Of Several Causes of Action. Vm. PLACE OF TEIAL. 1. How Fixed. 2. Changing. IX. TEIAL BY JUDGE ALONE. 1. How Procured. (a) By Notice of Trial. 876 Trjal. (b) By Order. (c) By Setting Down m Chancery. (d) By Agreement to Tahf Evidence hy Affida/oit. 2. How Tbial Takes Place. (a) Before One Judge Onl/g. (6) PuiUdty of ProceedAngs. (e) Default of Appearcmce of Forties [see Jtidoment, I., 5.] (d) Addresses of Oounsel and Order of Proceedings. (e) Ordering Witnesses Out of Cowi. if) Adjov/mment and Postponement. (g) Judgment, Further Consideration, lie should, unless the party giving the notice has a right to a jury, apply for anorder under r. 26 (Wedderhurn v. Pickering, sup.) Unless the parties have an absolute right to a trial by jury, the cour(^ has a discretion, which must not be exercised capriciously, but with which the Court of Appeal will not ordinarily interfere, whether it will make an order under r. 26, after such notice under r. 3: {Claxhe v. Cookson, L. Kep. 2 Ch. Div. 746 : 34 L. T. Rep. N. S. 646 ; Swindell v. Birming- ham Syndicate, L. Rep. 3 Ch. Div. 127 ; 35 L. T. Rep. N. S. Ill ; Wed- derhurn V. Pickering, Powell v. Williams, jRuston v. Tobin, sup.) 2. By Plaintipf. Subject to the provisions ^f the following rules [of O. XXXVI., where the defendant gives notice of trial] the pMntifEs on giving notice within the time fixed oy rule 3 [i.e., four days from the time of the service of ihe notice of trial, or within such extended time as a court or judge may allow], that he desires to have the issues of fact tried before a judge and jury, [may] be entitled to have the same so tried : {O. XXXVI., r. 4, and see sup. 1.) m. CHAifGING MODE OF TRIAL. In any case in which neither the plaintiS nor defendant has given notice under the preceding rules that he desires to have the issues of fact tried before a judge and 3ury [see sup. I., 2 ; II.], or in any case within the 57th section of the Act [see Repeeees], if the plaintifE or defendant desires to have the action tried in any other mode than that specified in the notice of trial, he shall apply to the court or a judge for an order to that effect, within four days from the time of service of the notice of trial, or within such extended time as a court or judge may allow: (O. XXXVL, r. 5.) As to the application of the rulejin cases of references, see Reeeeebs, III. If a party gives notice of trial of an action before a referee, an order with costs will be made on motion for trial before a judge alone : (Braginton v. Yates, W. N. 1880, p. 150.) A party cannot apply under this rule to change the mode proposed by his own notice of trial: (Lascelles v. Butt, L. Rep. 2 Ch. Div. 688; 35 L. T. Rep. N. S. 122 ; Sugg v. Silher, L. Rep. 1 Q. B. Div. 362.) The change must be one which the court or judge has power to order against the will of the other party, and the court cannot take away from a party the right to a trial by jury where, under the old pra/Ctice, he had an absolute right to such a trial : (Sugg v. Silher, sup.) In other cases there is a discretion in the court : (see sup., II., 1.) "Where an action is set down in the Chancery Division, it should not be sent to be tried by a judge and jury without its being clearly settled what is to be tried by the jury : (per Malins, V.C., Pilley v. Baylis, L. Rep. 5 Ch. Div. 241, 247.) IV. ENTRY FOR TRIAL. 1. When Made. Unless within six days after notice of trial is given the cause shaUJI be entered for trial by one party or the other, the notice of trial shall be^no longer in force : (O. XXXVI., r. 10a, Dec. 1875.) 880 Trial. TMs mle is not to apply i ... to trials not in London or Middlesex : (Id. ; and see pogt, 2.) A cause cannot be entered for trial before the pleadings are closed : (Metropolitcm Irmer Ci/rcle Railway Gompa/wu v. Metropolitan Railway Company, L. Rep. 6' Ex. Div. 96 ; 42 L. T. Rep. N. S. 590 ; 28 W. R. 510.) 2. By Whom Made. (a) In LonSkin or Middlesex. If the party grving notice of trial for London or Middlesex omits to enter the action for trial on the day or day after giving notice of trial, the party to whom notice has been given may, unless the notice has been countermanded under the last rule [see sup. I., 9] within four days enter the action for trial : (O. XXXVI., r. 14.) Actions in the Chancery Division for trial by jury are to be set down iu Middlesex, unless, in the statement of claim, or by order, another place is named : {Cla/rhe v. Cooleson, L. Rep. 2 Ch. Div. 746 ; 34 L. T. Rep. N. S. 646 ; Wa/rner v. Mwrdoeh, L. Rep. 4 Ch. Div. 750.) And no order showing the reason is necessary : {Cla/rJee v. Cooleson, svp. ; Swnt V. City of London Real Property Company, L. Rep. 3 Q. B. Div. 19.) (6) Slsewhere. After notice of trial has been given of any action or issue to be tried elsewhere than in London or Middlesex, either party may at any time before the day next before the commission day enter the action or issue for trial at the next assizes : (O. XXXVL, r. 15, March, 1879.) 3. Whbee Made. (a) Trials hy Judge Alone. (1) In London. Where notice for trial before a judge is given, the action must be set down with the registrar. (2) In District Registry. An action in the Chancery Division proceeding in the district registry, must be entered with the district registrar (O. XXXV., rr. 1 and 1a, June, 1876) for trial in London before the judge : (Re 8m,ith ; Hutchinson v. Ward, L. Rep. 6 Ch. Div. 692.) (6) Trials by Judge and Jury. In actions assigned to the Chancery Division, when the plaintiff .... gives notice of trial before a judge and jury, the action is to be entered for trial with the associates, instead of with the Chancery registrar : (Ch. Reg. Not. Feb. 1877; Wa/rner v. Murdoch, L. Rep. 4 Ch. Div. 750 and see post, XI.) ' After notice of trial has been given of any action or issue to be tried elsewhere than in London or Middlesex, either party may at any time before the day next before the commission day enter the action or issue for trial at the next assizes in the district registry (if any) of the «ity or town where the trial is to be had, or with the associate at the assize town as heretofore: (O. XXX VI., r. 15, March, 1879.) So long as there is no district registry in the places enumerated in the firsf of the following columns, entries for trial may be made in the district registries in the second of the following columns — i.e., actions and issues for trial at — Bodmin may be entered in the district registry at Truro. Oarnarvon „ „ „ ,, Bangor. Chelmsford „ „ „ „ Colohester. Lancaster ,, „ „ „ Preston. Trial. 881 Lewes Monmoiith StaiEord Taunton or Wells Warwick Winchester t may be entered in the district registry at Brighton. Newport, Mon. Hanley. Bridgwater. Birmingham. Southampton. (Id.) (c) Before Official Beferee [see Repeeees.] 4. How Made. (a) Forw, of Entry. The following is the form of praecipe on. entering an action for trial — In the High Court of Justice, Division. 18 , No. Between Plaintiff and Defendant. Enter this action for trial. Dated the day of 18 . (Signed) (Address) (Sched. E. 26, Rules of April, 1880.) (6) Certificate of Master, Bequest, &c. . All causes required to be heard shall be set down for hearing by the registrars, upon production to them of the certificate of the proper officer that the same are in a fit state to be set down for hearing : (C. O. 21, r. 2.) Causes are to be set down for original hearing upon production of the [master's] certificate that the cause is iu a fit state to be set down for hearing, indorsed by the solicitor of the party setting down the same with a memorandum stating, if there be any infant defendant, that a guardian ad litem has been appointed ; or if there be not, stating that there is not, any infant defendant. The memorandum may be in the form following, that is to say : — " A Grnardian ocS Viiem has been appointed to the Infant Defendant A. B." or, " There is not any Infant Defendant." A. B., Plaintiff's Solicitor. 1st March, 18 . (Ch. Reg., March, 1860, r. 7.) Demurrers, motions for a decree, original causes, special cases, causes for further consideration, and appeals .... are to be set down by the registrar's clerk at the Order of Course Seat on the same day the order, petition, [master's] certificate, request, or other document required for that purpose, is produced to or left with him ; and he is to retain any such petition, certificate, or request for filing : (Ch. Reg. March, 1860, r. 1.) [And see Further Consideration, III.] (c) Preliminary List where Jwry Trial Entered with District Begistra/r. [Where the action is to be tried by jury at the assizes (see snp. 3 (6)).] the entry shall be made in a numbered list to be provided by the district registrar in such vacant number as the party entering shall select, and the list shall be open for the inspection of all parties interested therein at all times during office hours: (0. XXXYl., r. 15, March, 1879.) L L L 882' Trial. (d) Delivering Copies of Pleadings. The party entering the action for trial shall deliver to the oflB.cer two copies of the whole of the pleadings in this action, for the use of the judge at the trial. Such copies shall be in print, except as to such parts, if any, of the pleadings as are by the rules permitted to be written : (O. XXXVI., r. 17, as amended by Rules 17a, of Dec. 1875.) [Where an action is entered with the districtlregistrar (svp. (c))] at the time of entry two copies of the pleadings shall be delivered as directed by Order XXXVI., r. 17a, one of which shall be duly stamped with the amount of the fee payable on entry of the cause for trial : (O. XXXVI., r. 16, March, 1879.) Unless such copies are delivered the action will not be entered for trial : (Oh. Reg. Not., I9th April, 1877 ; 21 S. J. 486.) (e) Ma/rTeing Cause for Jury Trial at Defendant's Insta/tice. [Where the defendant has given a cross notice for trial by judge and jury (see swp., II.)] the action will be marked in the cause book " Jury trial at defendant's instance" on the request of the solicitor for either party, and on the certificate of such solicitor that .... notice has been duly given within the time or extended time (see sup., II.) : (Oh. Reg. Not., Feb. 1877.) (/) Lists for Trial. (1) In London or Middlesex. The list or lists of actions for trial at the sittings in London and Middlesex respectively shall be prepared and the actions shall be allotted for trial without reference to the division of the High Oourt to which such actions may be attached : (O. XXXVI., r. 16.) (2) At the Assizes. The registrar shall close the list [mentioned sup. (c), after correction as mentioned jjpsi] and transmit a corrected copy of the said list, together with the two copies of the pleadings, to the associate at the assize town in such time that the same may be received at his office before the opening of the commission : (O. XXXVI., r. 16, March, 1879.) Oauses or isstles entered for trial by the associate shall be entered in such vacant numbers in the list so transmitted as the party entering may select, and shall be the cause list for the assizes : (O. XXXVI., r. 15, March, 1879.) If both parties enter the action or issue for trial it shall be tried in the order of the plaintiff's entry, and the defendant's entry shall be vacated: (O. XXXVI., r. 16, March, 1879.) (3) Adding Oases for Jury Trial at Defendant's Instance. Actions which have been .... marked [for jury trial at defendant's instance (see sup. (e))] wiU be added by the associates to their list of actions for trial, upon the solicitor for either party bringing to them the certificate of the Chancery Registrar .... annexed to the statement of claim : (Oh. Reg. Not. I9th April, 1877, where the form of certificate is given.) V. MARKING "SHORT." [See Short Cause.] VI. WITHDRAWAL OF AND EXPUNGING OASES. Where a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing signed by the parties : (O. XXXIII., r. 2, Dec. 1875 ; and see Discontinuance and Withdrawal.) Trial. 883 Where any cause becomes abated or is compromised after the same is set down to be heard, the soUcitor for the plaintifp shall certify the fact as the case may be, to the registrar, who shall cause aa entry thereof to be made m the canse-book opposite to the name of such cause (C. O. 21, r. 7) ; otherwise the defendant is entitled to the costs of the day • (Saner v Beavin, 14 Beav. 646.) Where any cause, shall have been standing for one year in the cause - book, marked as " abated," or standing over generally, such cause shall, at the expiration of the year, be struck out of the cause-book : (C. O. 21, r. 8.) Where the trial of an action or issue which has been entered for trial [at the Assizes] has been postponed or withdrawn under O. XXXIII., r. 2, or settled, the party who made the entry shall immediately thereupon give notice thereof to the [district] registrar, and such entry shall be expunged from the list : (O. XXXVI., r. 16, March, 1879.J VII. MAJSTNER OF TRIAL. 1. Of Actions. Actions shall be tried and heard either before a judge or judges, or before a judge sitting with assessors, or before a judge and jury [or before an official or special referee, with or without assessors] -. (O. XXXVI r. 2.) _ _ A question in a cause only can be referred ; the whole action cannot be referred to an o£B.cial or special referee, as such, even by consent : [see Referees.] 2. Of Isbtjes. Issues may be tried — (a) Before a judge or judges ; (6) Before a judge sitting with assessors ; (c) Before a jndge and jury ; (d) Before an official or special referee, with or without assessors : (O. XXXVI., r. 2 ; and see Referees.) An issue under the Interpleader Act (1 & 2 WUl. 4, c. 58) cannot be tried before a judge alone, even where notice of trial before such judge has been given, and the defendant has given no counter-notice : (Maml/un v. Betteleii L. Rep. 6 Q. B. Div. 63.) 3. Of Questions of Fact in Different Ways, or one before Another. Subject to the provisions of the preceding rules [of O. XXXVI.] the court or a judge may, in any action at any time or from time to time, order that different questions of fact arising therein be tried by difEerent modes of trial, or that one or more questions of fact be tried before the others, and may appoint the place or places for such trial or trials, and in aU cases may order that one or more issues of fact be tried before any other or others : (O. XXXVl., r. 6.) In an action for injuries to a vessel, it was ordered that the question of liability should be tried before a jury, and the question of damages before an official referee : (Liverpool, &c., Oomparvy v. London, &c,, Bocks Company, W. N. 1875, p. 203.) In an action against several defendants involving various issues, the plaintifB having applied for an order for two simple issues to be tried as between themselves and two of the defendants before the rest of the action, the court made the order on the plaintiffs' undertaking not to seek relief against the said two defendants in respect of any cause of action other than that covered by the issues so to be tried, and also L L L 2 884 Trial. discontinaing sneh portion of the action as the court should direct : (Emma Sihier Mirvimg Company v. Qrant, L. Rep. 11 Oh. Div. 918; 40 L. T. Rep. N. S. 804.) An application to hare one issne in an action tried before another can only be granted on very special grounds. Where a defendant in a partnership action set up by counter-claim an agreement by the plaintiff foB sale to the defendant of his (the plaintiff's) intere.st in the partnership at a stated price, it was held that the defendant was not entitled to have the issue raised by his counter-claim tried before the plaintiff's issues in the action: (Piercy v. Young, L. Rep. 16 Oh. Div. 475; 42 L. T. iBep. N. S. 292.) Application may be made before delivery of the reply (Id.) ; but wiU not be allowed if made by a party who has exerpised his option for trial in another way : (Dent v. Sovereign Life AssuroMce Compomy, W. N. 1879, p. 33.) The Oourt of Appeal will not interfere with the discretion of a divisional cojirt, but a divisional court will interfere with the discretion of a judge at chambers : [Tasmcmiam, Railway Compamy v. Clark, W. N. 1879, pp. 88, 106.) 4. Of Sbvebai Oatjses op Action. Where the plaintiff unites in the same action and in the same statement of claim several causes of action, .... if it appear to the court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the court or judge may order separate triafe of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof : (O. XVII., r. 1.) Vin. PLACE OF TRIAL. 1. How Fixed. There shall be no local venue for the trial of any action, but when the plaintiff proposes to ha,ve the action tried elsewhere than in Middlesex, he shall in his statement of claim name the county or place in which he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so named. Where no place of trial is named in the statement of claim, the place of trial shall, unless a judge otherwise orders, be the countv of Middlesex: (O. XXXVL.r.l.) The plaintiff has the power to fix any place for the trial in cases in the Chancery Division : (Bedmayne v. Vaugham, 24 W; R. 983.) 2. Changiug. An order to change the place of trial will only be made where there is a clear preponderance of convenience in favour of the change : {Phim v. Normamton Iron Compamy, W. N. 1876, p. 105 ; Powell v. Williams, L. Rep. 12 Oh. Div. 234 ; 40 L. T. Rep. N. S. 679 ; 27 W. R. 796.) As to the order specifying the reason for the change, see O. XXXVI., r. 29a, post, XI., 3 (6.) IX. TRIAL BY JUDGE ALONE. 1. How Peocitbed. (a) By Notice of Trial. A party desiring to have ms action tried by a judge without a jury must give notice of trial in such a manner : (see sv/p., I., 2.) (6) By order. 'The court or a judge may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly Trial. 885 of law, arising in any cause or matter which previously to the passing of the Act could, without any consent of parties, be tried without a jury : (O. XXXVI., r. 26.) The whole action may be ordered to be tried without a jury : [Cla/rlce V. Cookson, L. Rep. 2 Oh. Div. 746 ; 34 L. T. Rep. N. S. 646 ; Bach v. Hay, L. Rep. 5 Oh. Div. 235 ; 36 L. T. Rep. N. S. 296 ; Swindell y. Birmingham Syndicate, L. Rep. 3 Oh. Div. 127 ; 35 L. T. Rep. N. S. 111.) In actions which could formerly only have been brought as suits in the Oourt of Chancery, the High Court has now the same discretion as the Court of Chancery formerly, whether there shall be a trial by jury ; and the parties have, in such cases, no absolute right to a trial by jury : (per James and Mellish, L.J J., Swindell v. Birrmngham Syndicate, sup. ; West V. White, L. Rep. 4 Oh. Div. 631 ; 46 L. J. 627, Oh, ; Bmston v. Tobin, L. Rep. 10 Ch. Div. 558 ; 40 L. T. Rep. N. S. Ill ; and see Bovill V. Sitchcoch, L. Rep. 3 Oh. App. 417.) The Court of Appeal will not interfere with the discretion of the court below, unless in a very strong case — as, for instance, where the judge below said he made or refused the order because he held a certain opinion as a matter of law, which the Court of Appeal considers wrong : {Swin- dell V. Birmingham Syndicate, svi/p. ; Bnbston v. Tohi/n, sup.) Where there are several defendants, and one of them only gives notice to the plaintiff that he desires to have the issues tried by. jury, notice of a plaintiff's motion that, notwithstanding the notice, the action may be tried without a jury, need not be served on the other defendants {Bach v. Say, L. Rep. 5 Ch. Div. 239) ; but the refusal of one defendant does not prevent an action being tried by jury ■ {Mirehouse v. Barnett, 47 L. J. 689, Ch.) The application may be made by motion or summons. The order may be made notwithstanding a cross-notice for a jury under Order XXXVI., r. 3 : (see sup., II.) Rule 6 was framed to meet cases which would, under the old system, have been tried in the Court of Chancery, and which might be considered, by reason of involving a mixture of law and fact, or from- great complexity, or otherwise, not capable of being conveniently tried before a jury. Where the case is of a nature fit to be tried by jury, the right of a larty should not ordinarily be interfered with : (per Hall, V.O., Clarhe . . Coohson, sup. ; per Jessel, M.R., Bordier v. Bwrrell, L. Rep. 5 Ch. Div. 512; and Wedderbv/rn v. Pickervng, L. Rep. 13 Oh. Div. 769 ; 41 L. T. Rep. F. S. 523 ; 28 W. R. 239 ; per Bacon, V.C, Singer Manufacturing Company v. Loog, L. Rep. 11 Oh. Div. 656 ; 40 L. T. Rep. N. S. 647; and West v. White, sup.; per Fry, J., Powell v. WUliams, L. Rep. 12 Ch. Div. 234; 40 L. T. Rep. N. S. 679; 27 W. R. 798-) , . . ,. Thus, there is no absolute right to a tnal by ]ury in actions— For specific performance {Syhes v. Mrth, 46 L. J. 627, Ch. ; Swxrkdell V. Birmingham Syndicate, sup.), although the writ by amendment claims, in the alternative, damages for misrepresentation {Pilley V. BcwZi*, L. Rep. 5 Oh. Div, 241) ; For cancellation or setting aside an agreement on the ground _ot fraud {Bach v. Say, sup. ; Bmston v. Tobin, L. Rep. 10 Ch. Div. 558 ; 4!b L. T. Rep. N. S. Ill ; 27 W. R. 588) ■ ^ , r For infringement of a trade mark {Spratt s Patent v. Wa/rd, li. Rep. 11 Ch. Div. 240 ; 40 L. T. Rep. N. S. 250 ; 27 W. R. 470) ; To restrain the use of a trade name {Si/nger Manrnfactunng Com- poMy V. Loog, L. Rep. 11 Ch. Div. 656) ; I 886 Trial. '. ' • \ _^ Wtere the correspondence was voluminous; and where the main question was one of title, depending on conveyances, plans, and photo- graphs, the action was ordered to be tried before a judge alone : {Crwrling V. Boyds, W. N. 1876, p. 291 ; Wedderbv/rn v. Pickering, L. Bep. 13 Oh. Div. 769 ; 41 L. T. Rep. N. S. 623 ; 28 W. B. 239; and see Wood v. Kay, W. N. 1879, p. 206.) An action for a mandatory injunction to restrain a defendant from, permitting a building to remain so as to obstruct the plaintifB's light, must be sent for trial by jury if either party requires it: (BordAer v. Bv/rrell, sv/p.) In the absence of special cause, a defendant in a nuisance case will not be deprived of his right to have the issues tried by a jury: {West v.. White, L. Rep. 4 Oh. Div. 631 ; 36 L. T. Rep. N. S. 95 ; 46 L. J. 627, Oh. ; Powell V. WilUams, L. Rep. 12 Oh. Div. 234 ; 40 L. T. Rep. N. S. 679;,27W. R. 796.) Where the principal questions in an administration action were as to the making of a bill of exchange, whether it was given for a gambling debt, and whether the plaintifE was the bond fide owner for value, a trid by jury was ordered: {Cla/rke v. Cookson, swp.) (c) By Setting Down in Chcmcery. A party who has set down his action for trial by a judge of the Chancery Division has exercised his option as to ■ the mode of trial, and is not afterwards entitled to apply for trial of an issue before a jury: (Dent Vi Sovereign Life Assurcmce Gompamy, 27 W. R. 379.) (d) By Agreement to take Evidence by Affidavit. Where the parties agree that the evidence shall be taken by affidavit, it is equivalent to an agreement that the action shall be tried by a judge without a jury, even where the party would otherwise be entitled as of right to a trial by jury : {Brooke v. Wigg, L. Rep. 8 Oh. Div. 510 ; 38 L. T. Rep. N. S. 549, 732 ; 47 L. J. 749, Oh. ; 26 W. R. 729.) 2. Hovir Tbiai takes Place. (a) Before one Judge only. .Every action aoad proceeding xa the High Oourt of Justice, and all business arising out of the same [except as thereinafter provided], shall, so . far as practicable and convenient, be heard, determined, and disposed of before a single judge : (A.J.A., 1876, s. 17.) ' The exception applies to Divisional Courts. (6) Publicity of Proceedings. Any trial in the High Court must be public. The only exceptions are in cases affecting lunatics, or wards of court, or where the practice of the old ecclesiastical courts is continued, or where a public trial would defeat the object of the action : {Naqle-Gillman v. Christovher, L. Rep. 4 Oh. Div. 173.) (c) Default of Appearance of Parties. [See Judgment, I., 5.] (d) Addresses of Counsel and Order of Proceedings. The general rules are as foUows : 1. On a question of fact only one counsel will be heard on each side : [Corvrmigton v. Gilliat, L. Rep. 1 Oh. Div. 691 ; 45 L. J. 273, Oh.) 2. Where there is a question of law two counsel will be heard on each side : (Id.) 3. Where the evidence is not viva voce, the plaintiff's leading counsel opens and argues his case ; the plaintiff's evidence is read ; the ;^aintiff 's Trial. 887 junior coimsel is heard ; the defendant's leading counsel opens and argues his case ; the defendant's evidence is read ; the defendant's junior counsel is heard; the plaintiff's leading counsel replies. 4. Where the evidenoe is vivd voce, the plaintiff's counsel are heard ; the plaintiff's witnesses are examined, cross-examined, and re-examined; the defendant's counsel are heard; the defendant's witnesses are examined, cross-examined, and re-examined : (Dan. 844-5.) In Mr. Justice Fry's Court, the plaintiff's leading counsel opens the case; the plaintiff's witnesses are examined, cross-examined, and re- examined; the plaintiff's junior counsel sums up the evidence; the defendant's leadmg counsel opens his case ; the defendant's witnesses are examined, cross-examined, and re-examined; the defendant's junior counsel sums up his evidence ; the plaintiff's leading counsel replies : {KinoY. Sudkin, L. Rep. 6 Ch. Div. 160.) In BorvneweU v. JenMns, W. N. 1877, p. 202, a short addxess by the plaintiff's junior counsel was allowed. In V.O. MaUns' Court, either the leader or junior may sum up, so that, however, in case of either plaintiff or defendant, one counsel only shall be heard after the evidence has been put in : (JfeizZer v. TFbod, W. If . 1877, p. 260 ; 37 L. T. Rep. N. S. 523 ; 47 L. J. 139, Ch. ; 26 W. R. 125.) 5. Where witnesses are cross-examined on their aflB.davits at the hearing, the cross-examination of each witness follows the reading of his affidavit : (Dan. 844.) 6. Subject to rules 7 and 8, if there are several sets of defendants, their counsel are heard, and their evidence is read, in the order in which the defendants' names appear on the record. 7. Counsel for the defendants having the same interest as the plaintiff are heard immediately after the plaintiff's counsel. 8. Where the plaintiff claims alternative relief against two defendants^ he is not at the hearing bound to elect against which of them to proceed, but he may go into the whole case. The counsel for one of the defen- dants may address the court in support of the plaintiff's case, and cross- exanune the plaintiff's witnesses : [Child v. Stenning, L. Rep. 7 Ch. Div. 413 ; 38 L. T. Rep. N. S. 232 ; 47 L. J. 211, Ch. ; 26 W. R. 265.) Where there are questions. of fact and questions of law to be raised at the trial, the judge may, if he choose, decide the question of law first : {Pooley V. Driver, L. Rep. 5 Ch. Div. 468.) (e) Ordering Witnesses out of Court. The court may order witnesses out of court during the examination of other witnesses, whether they are parties to the action or not : [Outram V. Outram, W. N. 1877, p. 75.) (/) Adjournment and Postponement. The judge may, if he think it expedient for the interests of justice, postpone or adjourn the trial for such time, and upon such terms, if any, as he shall think fit : (O. XXXVI., r. 21 ; and see post.) Where the case was adjourned to amend by adding a party, the party desiring the adjournment was made to pay all the costs occasioned by the case having been in the paper, and not merely a fixed sum for costs, as under the old Chancery jiractice : {I/ydall v. Ma/rtinson, L.' Rep. 5 Ch. Div 780 • 37 L T. Rep. N. S. 69 ; 25 W. R. 866 ; Dowdeswell v. Dowdes- weli, W. N. 1877, p. 228.) ,,,...., . ,■ * Where issues have been ordered to be tried, or issues or questions ot fact to be determined in any manner, and some only of such issues or questions of fa«t have been tried or determined, any party who considers that the result of such trial or determination renders the trial or deter- mination of the others of them imnecessary, or renders it desirable that 888 Trial. the trial or determinatiou thereof should be postponed, may apply to the court or a judge for leave to set down the action on motion for judgment, without waiting for such trial or determination. And the court or judge may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other questions of fact : (O. XL., r. 8.) fTpon production to the registrar of a request or consent signed by the solicitors of all parties, at the latest in the forenoon of the day before the day the cause is to be in the paper, it will be marked as standing over to a day to be named. If all parties do not consent, application should be made to the court for that purpose' at the latest in the forenoon of the day before the day the cause is to be in the paper ; otherwise, if the cause be placed in the paper and called on, it may be struck outj and in that case it must be again set down at the bottom of the list : (Ch. Beg. March, 1800, r. 13.) It shaU be lawful for the [judge] when sitting in open court to adjourn' for consideration in chambers any matter which, in the opinion of snoh judge, may be more conveniently disposed of in chambers : (15 & 16 Vict, c. 80, s. 27.) {g) Judgment, Further Consideration, omd Motion for Judgment. Upon the trial of an action the judge may, at or after the trial, direct that judgment be entered for any or either party, or adjourn the case for further consideration, or leave any party to move for judgment: (0. XXXVI., r. 22a., Dec. 1876, repealing O. XXXVI., r. 22; and see Judgment.) X. TRIAL BEFORE JUDGE AND ASSESSORS. Subject to any rules of court and to such right as may now exist to have particnUir cases submitted to the verdict of a jury .... in any cause or matter (other than a criminal proceeding by the Crown) before the High Court of Justice or before the Court of Appeal .... the High Court or the Court of Appeal may [if] it . . . think it expedient so to do, call in the aid of one or more assessors sp'ecially qualified, and try and hear such cause or matter wholly or partiaify with the assistance of such assessors. The remuneration, if any, to be paid to such assessors shall be determined by the court : (J. A., 1873, s. 56.) Trials with assessors shall take place in such manner and upon such terms as the court or a judge shall direct : (O. XXXVI., r. 28.) Notice of trial with assessors will not prevent a party giving notice for trial of issues of fact by a jury : (Sugg v. Silber, L.-Rep. 1 Q. B. Div. 362.) XI. TRIAL BY JURY. 1. How PBOCTJBBD. A party desiring to have his action tried by jury must give notice of trial in such a manner, or give cross-notice of his demand tor such trial : (see ««tp. I., 2 ; II.) Where, no. place of trial being named in the statement of claim, the action is set down in Middlesex, no special order is necessary : (Bunt v. City of London Beal Property Compamm, L. Rep. 3 Q. B. Div. 19 ; 37 L. T. Rep. N. S. 344.) 2. When had as op Right. [See swp. II. ; IX., 1 (6).] A party who has set down his action for trial by a judge of the Chancery Division has thereby exercised his option as to trial, and is not Trial. 889 •entitled to a trial by a jury : [DentY. Sovereign Life Assurance CompanA/, 3. Whbke Obderbd. (a) General Power. The court or a judge may, if it shaU appear either before or at the trial that any issue of fact can be more conveniently tried before a jury, direct that such issue shall be tried by a judge with a jury : (O. XXXVI., r. 27.) The trial may be directed either in London or Middlesex, or at the assizes : (Gla/rhe v. Coohson, L. Rep. 4 Oh. Div. 746 ; 34 L. T. Rep. N. S. 646.) In any cause the court or a judge of the division to which the cause is assigned may, at any time or from time to time, order the trial and determination of any question or issue of fact, or partly of fact and partly of law, by any commissioner or commissioners appointed in pursuance of the 29th section of the Judicature Act, 1873, or at the sittings to be held in Mid(^esex or London ; and such question or issue shall be tried and determined accordingly : (O. XXXYI., r. 29.) Her Majesty, by commission of assize or by any other commission, either general or special, may assign to any judge or judges of the High Court of Justice or other persons usually named in commissions of assize, the duty of trying and determining within any place or district specially fixed for that purpose by such commission, any causes or matters, or any. questions or issues of fact or of law, or partly of fact and partly of law, in any cause or matter depending in the said High Court, or the «xercise of any civil or criminal jurisdiction capable of being exercised by the said High Court ; and any commission so granted by Her Majesty shall be of the same validity as if it were enacted in the body ■of this Act; and any Commissioner or Commissioners ■ appointed in pursuance of this section shall, when engaged in the exercise of any . jurisdiction assigned to him or them in pursuance of this Act, be deemed to constitute a court of the said High Court of Justice ; and, subject to any restrictions or conditions imposed by rules of court and to the power of transfer, any party to any cause or matter involving the trial of a question or issue of fact, or partly of fact and partly of law, may, with the leave of the judge or judges to whom or to whose division the cause or matter is assigned, require the question or issue to be tried and determined by a Commissioner or Commissioners as aforesaid, or at sittings to be held in Middlesex or London as hereinafter in this Act mentioned, and such question or issue shall be tried and determined accordingly: (J. A. 1873, s. 29.) A cause or matter not involving any question or issue of fact may be tried and determined in like manner with the consent of all the parties -thereto : (J. A. 1873, s. 29.) Mr. Justice Fry may maie an order directing the trial of issues before a jury : {Lloyd v. Jones, inf.) The whole of an action assigned to the Chancery Division, or only issues therein, may be ordered to be tried at the London or Middlesex sittings or at the assizes : {Wood v. Eamblet, L. Rep. 6 Ch. Div. 113; 47 L. J. 114, Ch.) _ , ^ ' ' . The power to make an order directing the trial of issues betore a jury is discretionary : {Lloyd v. Jones, L. Rep. 7 Ch. Div. 390 ; 47 L. J. 470, Oh. ; 26 W. R. 262.) The court has the same discretion as it has in ■directing trials without a jury: (see Slip., II. ; IX., 1 (6.) The power wiU not be exercised on the application of a party who has been guilty of delay in giving notice of trial or taking other steps in the ■action : {Lloyd v. Jones, sup^ 890 . Trial. X (6) Order to specify reason therefor. Where in any action in the Chancery Division the action, or any question at issue in the action, is ordered to be tried before any. commis- sioner or commissioners of assize, or at the .London or Middlesex sittings of any division other than the Chancery Division, the order directing such trial shall state on its face the reason for vrhich it is expedient that the action, question, or issue should be so tried, and should ndt be tried in the Chancery Division : (O. XXXVI., r. 29a, Dee. 1876.) Per Bacon, V.C.: It is a sufficient reason that the defendant desires a trial by jury, and that the court sees no reason to the contrary: {West V. White, L. Rep. 4 Ch. Div. 631 ; 36 L. T. Bep. N. S. 95.) Per Jessel, M.R. : Such mere desire is not a sufficient reason. The reasons directed by him to be inserted in an order for trial at the Stafford- shire Assizes were " because both parties desire it, because the action is one for damages only, because it relates to land in StafEordshire, aid because there are a great many vsitnesses residing ill the neighbourhood " : {Wood V. Samblet, L. Rep. 6 Oh. Div. 113.) The reasons given in an order of Fry, J. were " that the locus in quo is more accessible from Hereford than from London, that a large number of witnesses reside in places from which Hereford is more accessible than from London, and that it, has not been made to appear to the court desirable to direct a trial without a jury of the issues of fact": {Powell v. Williams, L. Rep. 12 Ch. Div. 239.) 4. Whebe Tbiai Takes Place. A ease cannot be tried vrith a jury before a judge of the Chancery Division, but such action, or the issues therein, wiU be tried at the sittings in London or Middlesex or at the assizes, as the notice of trial, cross notice, or order of the judge may specify: {Warner v. Mm-doek, L. Rep. 4 Ch. Div. 750 ; Clarke v. Cookson, L. Rep. 2 Ch. Div. 746 ; 34 L. T. Rep. N. S. 646 ; 45 L. J. 753, Ch. ; Wood v. Ecmblet, sup.) 5. What Jukt Tbied Befobe. In any county, except London and Middlesex, the plaintiff .... shall be entitled to have the cause tried by a special jury, upon giving notice in writing to the defendant, at such time as would be necessary for a notice of trial, of his intention that the cause shall be so tried ; and the defen- dant .... shall be so entitled, on giving the like notice within the time .... limited for obtaining a rule for a special jury [more than six days before commission day, but not till after issue joined] : Provided that the court or a judge may at any time order that a cause shall be tried by a special jury, upon such terms as they or he shall think fit : (C. L. P. Act, 1852, s. 109.) In London and Middlesex .... any party to any action triable at any of the aforesaid sittings .... shall be entitled to have the cause tried by a special jury upon the same conditions as would entitle him to have it so tried in any county other than London and Middlesex : (Jury Act, 1870, s. 18.) In London and Middlesex every court or judge shall have the same power of oj^dering that a c^use be tried by a special jury as the like court or judge would have if the cause were tried in any county other than London and Middlesex : {Id. ; and see C. O. 41, r. 27.) _ Where notice has been given to try by special jury, either party may, 8ix_ days before the first day of the sittings in London or Middlesex, or adjournment day in London, or commission day of the assizes, give notice to the sheinff thnt such cause is to be tried by a special jury; and in case Trial. 891 no such notice be given no special jury need be summoned or attend, and the cause may be tried by a common jury, unless otherwise ordered by the court or a judge : (0. L. P. A., 1852, s. 112.) In all cases where notice is not given to the sheriff that the cause is to be tried by a special jury, and by reason thereof a special jury is not summoned or does not attend, the cause may be tried by a common jury, to be taken from the panel of common jurors, in like manner, as if no proceedings had been had to try the cause by a special jury : (0. L. P. A., 1852, s. 113.) 6. View by Juby. Either party shall be at liberty to apply by summons to a judge at chambers for a view by the jury summoned for any trial; and on the hearing of such summons each party shall name a shower for such view : (C. O. 41, r. 37.) The summons for a view, and the order to be made thereon, shall state the place at which the view is to be made, and the distance thereof from the of&ee of the under-sheriff. And the sum to be deposited in the hands of the under-sheriff shall be 101. in case of a common jury, and 16Z. in case of a special jury, if such distance shall not exceed five miles, and 15?. in case of a common jury, and 211. in case of a special jury, if it shall be above five miles ; aiid if such sum shall be more than sufficient to pay the expenses of the view, the surplus shall forthwith be returned to the solicitor or party who obtained the view ; and if such sum shall not be sufficient to pay such expenses, the deficiency shall forthwith be paid by such solicitor or party to the under-sheriff : (0. O. 41, r. 38.) The mode and practice [as to] a special jury, and the proceedings after any order for a view shall have been made as aforesaid, shall be the same in all respects as .... for the time being shall be in force in the [Common Law Divisions] when a special jury is ordered to be struck or a view is to be had, or as near thereto as the practice of [the] court wUl admit : (C. O. 41, r. 39.) 7. Position or Judge. (a) Before What Judge Tried. Every trial of any question or issue of fact by a jury shall be held before a single judge, unless such trial be specially ordered to be held before two or more judges : (O. XXXVI., r. 7.) (6) Leaving Issues to, cmd Directing Jury. Nothing in the Act [of 1873], nor in any rule or order made under the powers thereof, or of this Act, shall take away or prejudice the right of any party to any action to have the issues for trial by jnry submitted and left by the judge to the jury before whom the same shall come for trial, with a proper and complete direction to the jury upon the law, and as to the evidence applicable to such issues : Provided also, that the said right may be enforced either by motion m the High Court of Justice, or by motion in the Court of Appeal founded upon an exception entered upon or annexed to the record : (J. A. 1875, r. 22 ; CheeseY. Lovejoy, L. Rep. 2 P. Div. 161.) (c) Adjournment and Postponement. [See sup. IX., 2 (/).] ( Trustees. Where an infant is beneficially entitled, the order should not be made under this Act, but under 1 Will. 4, c. 65, s. 32 : [Be Westwood, 6 N. R. 316 ; but see two next cases.) Where a sole trastee of money for an infant and another invested it in stock in the joint names of himself and the infant, and after the deaths of the trustee and the other person, a suit was instituted, an order was made that the right to call for a transfer should vest in the executors of such other person foi; the purpose of transferring the fund into court : '{Sanders v. Homer, 25 Beav. 467,) Where a testator bequeathed a legacy to each child, and directed his executors to stand possessed of his residuary estate in trust for aU his children, shares of infants to be invested in CQnsols till payment at twenty-one' or marriage, and the will contained trusts for maintenance, &c., and the executors invested in consols and died, the court declaxed the infants to be trustees, ,and directed the administratrix of the last- surviving executrix to transfer the consols into court : {Gardner v. Cowles, L. Rep. 3 Ch. Div. 304.) Where money was by mistake invested in the names of infants beneficially interested in consols;, the court, on bill filed, declared the infants trustees for the plaintiffs, and directed a vesting order: (Rmes V. Bwaes, W. N. 1866, p. 144 ; see also Deuoy v. Devoy, 3 Sm. & Giffi. 403; Stone V. Stone, 3 Jur. N. S. V08.) (2) Trustee ouf of Jurisdiction, not to be found, or not known to be Alive or Dead. When any person or persons shall be jointly entitled with any person out of the jurisdiction of the court . . . . ' or who cannot be found, or ^concerning whom it shall be uncertain whether he be living or dead, to any stock or chose in action upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, either in such person Or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons together with any person or persons the .... said court may appoint : (Tr. A., 1850, s. 22.) When any sole trustee of any stock or chose in action shall be out of the jurisdiction of the said court, or cannot be found, or it shall be uncertain whether he be living or dead, it shaR be lawful for the said .... court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose m action, or any interest in respect thereof, in any person or persons the said .... court may appoint : (Tr. A., 1850, s. 22.) The husband of an executrix out of the jurisdiction is a trustee within the seetioA : {Ex parte Bradshaw, 2 De G. M. & G. 900.) Where an infant trustee is also out of the jurisdiction, the case ia withjn the sections applicable to infancy : {Be Cramer, 5 De G. & Sm. 312.) , A trustee of stock, absent from England in command of a merchant vessel on a voyage to India, is not out of the jurisdiction : {Hutchinson V. Stephens, 5 Sim. 498.) Where a debtor in India pledged' shares in a joint-stock banking company in England with a creditor in England, with a written authority by letter to sell, which was communicated to and recognised by the banking company and the creditoj-, accordingly sold the shares, upon the petition of the purchaser it was held that the shares were " stock," heldT by a constructive trustee, and the court ordered a specified person Trustees. 915 to transfer the shares to the petitioner : (Be Anqelo, 5 De G. & S. 278.) " Sole trustee " means a person originally a sole trustee, or who is proved ,to have become such by surviving, see Randall's Will, 1 Drew. 401. Where bank stock was standing in the name of four trustees, one of whom was abroad and difficult to remove, the court vested the right to receive the past and future dividends in the three other trustees during their joint lives : (Be Peyton, 25 Beav. 317 ; 2 De G. & J. 290 ;' but as to future dividends, see Be Sartnall, 5 De G. & Sm. 111.) It should appear on the face of the order that the trustee is out of the jurisdiction : . (Be Mainwaring, 26 Beav. 172.) And as to the form of order, see Coles v. Benbow, W. N. 1873, p. 60. . Orders have been made vesting the right to transfer stock in a cestm que trust absolutely entitled : {Ex pa/rte Bradshaw, 2 De G. M, & G. 900 ; Be Ryan, 9 W. E,. W! ; and see Be White, L. Rep. 6 Oh. App. 698.) The court, when asked to transfer stock to. new trustees appointed under a power, must be satisfied of the fitness of the trustees, and all interested persons must be served : (Be Maynard, 16 Jur. 1084 ; Lewin, 877.) , - (3) Trustee or Executor Refusing to Transfer after ReCtuest. Where any sole trustee of any stock or chose in action shall neglect - or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest iii respect thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request iu'writing for that purpose shall have been made to him by the person absolutely entitled thereto, it shall be lawful for the court . i. . . to make an order vesting the sole right to transfer stloh stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said court may appoint : (Tr. A., 1850, s. 23.) As to " sole trustee " see sup., 1. One of several trustees is not a person absolutely entitled within the meaning of sects. 23 and 24 of the Act, nor is a cestui que trust who has only a life interest in the dividends, where the application is to transfer the stock : (Macltenzie v. Mackenzie, 5 D6 G. & Sm. 338 ; 16 Jur. 723.) Where stock was standing in the name of two trustees, both of whom refused to transfer, it was held that sects. 23 and 24 did not apply : (Be Bpawforth's Settlement, 12 W. R. 978.) Where the person entitled for life to dividends requested in writing two executors of a sole deceased trustee, in whose name ■ the trust stock was standing, to receive the dividends, and theymgde default for twenty-eight days, the court deckred the right to receive the dividends, which accrued prior to such request, to be vested in the person entitled for life, but held that it could not make any order as to any dividends accrued or to accrue subsequent to the date of the request : (-Be Sartnall, 21 L. J. 384, Oh.) , , . , Persons duly appointed new trustees are persons absolutely entitled to the stock within the meaning of the Act : (Expa/rte Bussell, 1 Sim. N. S. 404 ; Be Baxter's Will, 2 Sm. & G. App., v. ; Be Mlis, cited inf.) Where any one of the trustrees of any stock or chose in action neglects or refuses to transfer such stock, or to receive the dividends or incom^ thereof, or to sue for or recover such chose in action according to the N N N 2 916 Trustees. directions of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for thiit purpose shall have Deen made to him or her by such person, the «ourt [may] make an order vesting the right to tran3fer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, in the other trustee or trustees of the said stock or chose i/n action or in any person or persons whom the .... court may appoint jointly with such other trustee or trustees : (Tr. A., 1850, s. 24.) Where two executors of a surviving trustee refused to transfer, and the third executor was a lunatic, it was held that a vesting order could not be made under this section, and that a petition in lunacy must be presented. On a petition presented in lunacy and Chancery, an order was subsequently made ^resting the right to transfer the shares in the persons beneficially entitled : (iJe White, L. Rep. 5 Oh. App. 698.) ' When any stock [is] standing in the sole name of a deceased person, and his or her personal representative [is] out of the jurisdiction of the, court .... or cannot be found, or it [is] uncertain whether such personal repre- sentative be living or ^ead, or such personal representative iieglect or refuses to transfer such stock, or receive the dividends or income thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days nfext after a request in writing for that purpose .... made to him by the person entitled as aforesaid, the court [may] make an order vesting the right to transfer such stock, or to ' receive the 'di'wdends or income thereof, in any person or persons whom the .... court may appoint : (Tr. A., 1850, s. 25.) Where the executor of a surviving trustee had not proved, and neglected o transfer on the requisition of new trustees appointed by the court, an order was made vesting the right to transfer in them : {Be Ellis's Settle- rtvemt, 24 Beav. 426 ; and see Be Dixon, 21 W. E. 220 ; Cockell v. Pugh, 6 Beav. 293 ; Be Lunn's Charity, 15 Sim. 464.) Where the survivor of two trustees of stock under a wOl died, leaving no legal personal representative, on the petition of the cestuis que truster^, and two new trustees, who had been appointed under a power in the will, asking that the right to transfer the stock — ^which was then standing in the names of the deceased trustees — ^might vest in the new trustees, the court made the order without : {Be Crowe's Trust, L. Rep. 14 Ch. Div. 304, 610 ; 43 L. T. Rep. N. S. 112.) (4) Person Refusing to Transfer after Order. Where any person neglects or refuses to transfer any stock, or to receive the dividends or income thereof, or to sue for or recover any chose in action, or any interest in respect thereof, for the space of twenty-eight days next after an order of the court .... for that purpose [has] been .served upon him, the .... court [may] make an order vesting all the right of such person to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the .... court may appoint : (Tr. Ext. A., 1852, s. 4.) A petition for a preliminary or^let under this section need not be served upon the trustee : {Be Mount, 24 I*. T. Rep. N. S. 290.) ■ The order may be made upon motion {Be Holbrooh's Will, 8 W. R. 3) ; and must not deal with a larger subject-matter than the previous order which it proposes to enforce : {Skymner v. PeUchet,9 W. R. 191.) The order of the court must have been served personally, unless .the case is within Tr. A., 1850, s. 23 : {Coles -f.. Benhow, W. N". 1873, p. 60.) Trustees. ' '917 Wlien any stock shall be standing in the sole name of a deceased person, and his personal representative shall refuse or neglect to transfer such stock, or receive the dividends or income thereof for the space of twenty-eight days next after an order of the Court .... for that purpose shall have been served upon him, it shall be lawful 'for the Court' .... to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whoin the said court may appoint : (Tr. A., 1850, s. 5.) (5) On Appointing New Trustee. Upon making any order for appointing a new trustee or new trustees,' [the court may], either by the same or by any subsequent order, vest the right to call for a transfer of any stock subject to the trust, or to receive the dividends or income thereof, or to sue for or recover any ehose in action, subject to the trust, or any interest in respect thereof, in the person or persons who upon the appointment shall be the trustee or trustees : (Tr. A., 1850, s, 35.) Where the old trustee was beneficially interested in part of the stock, and the bank would not apportion the past dividend between the trust and the beneficial estate, the court (in lunacy) vested the right to receive the whole dividend in the new trustees, on their undertaking to invest the old trustee's portion for his benefit : (Be Stewa/rt, 2 De Gr. F. & J. 1.) ' An order was made under this section, vesting in a trustee appointed by the court the right to transfer stock standing in the name of a testator who had no legal personal representative : (Be Herbert, 8 W- K,- 272 ; and see Be Crowe's Trusts, sup. (8).) A vesting order operates from its date: (Woodfall v. Arbuthnot, L. Rep. 3 P. & M. 108.) An order cannot be made by the Chancery Division where the former trustee was a lunatic : {Be Smith's Trusts, Ir. Rep. 4 Bq. 180.) (6) In Persons not New Trustees. Under sect. 35 the court has vested stock in the trustees of another settlement : (Be SiUiard, 42 L. T. Rep. N. S. 79 ; and see in/. (/) (16).) (d) To make Vesting Orders of Charity Propert;^. It shall be lawful for the ... . court .... to exercise the powers herein conferred for the purpose of vesting anjr lands, stock, or chOse in action in the trustee or trustees of any charity or society over wbich charity or society the said court .... would have jurisdiction upon' suit- duly instituted, whether such trustee or trustees shall have been duly appointed by any power contained in any deed or instrument, or by the decree of the court .... or by order made upon a petition to the said court under any statute authorising the said court to make an order to that effect in a summary way upon petition : (Tr. A., 1850, s. 45.) (e) To appoint Person to Convey, &o. In every case where .... the court .... shall, under the .... Act. be enabled to make an order having the effect of a conveyance or assign- ment of any lands, or having the effect of a release or disposition of the contingent right of any person or persons, bom or unborn, it shall also be lawful for ... . the Court, should it be deemed more convenient to make an order appointing a person to convey or assign such lands, or release or dispose of such contingent right : (Tr. A., 1850, s. 20.) If a trustee of unsound mind is an infant, the Chancery Division has jurisdiction : (Be ArrowsnwXh, 4 Jur. N. S. 1123.) The conveyance or assignment, or felease or disposition of the person so appointed, shall, when in conformity with the teTms of the order by 918 Trustees. which he is appointed, have the same effect, in conveying or assigning the lands, or releasing or disposing of the contingent right, as an order of the .... court would in the particnla* case have had under the pro- visions of [the] Act : (Tr. A., 1850, s. 20.) _ , In every case where .... the court .... shall, under the provisions of [the Trustee Act, 1850] be enabled to mate an order vesting in any person or persons the right to transfer any stock transferable in the booli of the Governor and Company of the Bank of England, or of any other company or society established or to be established, it shall also be lawful for .... the court, if it be deemed more convenient, to make an order directing the secretary, deputy secretary, or accountant-general for the time being of the Governor and Company of the Bank of England, or any officer of such other company or society, at once to transfer or join in transferring the stock to the person or persons to be named in the order ; and the Act [is] a ftill and complete indemnity and discharge to the Governor and Company of the Bank of England, and all other companies or societies and their officers and servants, for all acts done or permitted to be done pursuant thereto : (Tr. A., 1850, s. 20.) Where there were persons under disability, and the estate was sold under a decree in lots, the court appointed the plaintiff's solicitor to coilvey the shares : {Sancox v. Spittle, 3 Sm. & Gi£E. 478 ; and see Wilks V. Groom, 6 De G. M. & G. 205 ; Shepherd v. Churchill, 25 Beav. 21 ; Be Cwming, L. Rep. 6 Ch. A_pp. 72.) As to ordering persons to ]oin in the transfer, see Wade v. HopMnson ; Hodgson t. Hodgson, Seton, 521 ; Coles v. Benibow, W. N. 1873, p. 60. Where stock was standing in the names of two deceased trustees, -the survivor having died intestate without a legal personal representative, the oottrt 'appointed the person absolutely entitfed trustee of the fund, and " ordered it to be tranferred into his name : {Be Dickson, 21 W. R. 220.) As to the conveyance, see Ex parte Foley, 8 Sim. 395. (/) To Appoint New Trustees. (1) General Rules. Whenever it shall be expedient to appoint anew trustee or new trustees, and it shall be found inexpedient, difficult, or impracticable so to do without the assistance of the court .... it shall be lawful for the said court .... to make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees (Tr. A., 1850, s. 32), whether there be any existing trustee or not at the time of making such order : (Tr. Ext. A., 1852, s. 9.) The court may act where the trust is a mere office without an estate : (Be Boyce, 10 Jur. N. S. 138.) Where there are distinct estates or separate shares under one trust instru- ment, separate trustees of each may be appointed : (Be Dennis, 12 W. R. 575 ; Be Gotterill, W. N. 1869, p. 183.) The person or persons who, upon the making of such order, .... shall be trustee or trustees, shall have all the same rights and powers as he or they would have had. if a;^paintedby decree in [an action] duly instituted : (Xr. .o.., looO, s. oo.j As to making vesting orders of lands, stock, and chases in action on appointing a new trustee, see gvp. (6) 10- and (c) (5). Any such appointment by the court of new trustees, and any such con- veyance, assignment, or transfer .... operates no further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instm- • ment would have done : (Tr. A., 1850, s. 36.) Trustees. - 919 (2) Limacy of Donee of Power. Where the donee of the power is lunatic, notwithstanding the power of theconunittee under an order in lunacy, the Chancery Division has also jurisdiction tq appoint : (JJe Heajpley, 18 W. {I. 1070 ; Be 8pa/rrow, L. Rep. 5 Oh. App. 662 ; Be richer s, L. Rep. 3 Ch. Div. 112.) The late Master of the Rolls (Romilly) required a committee to he appointed and served with the petition before making the order : (Be Parker, 32 Beav. 580.) (3) Absefice of Donee of Power. r Where the donee of the power was in India, a new trustee was ap- - pointed : {Be Humphry, 1 Jur. N. S. 921.) (4) Doubtful Power. Where trustee vrished to retire, and it was doubtful whether the power applied, the court appointed new trustees : {Be Woodgate's Settlement, 5 W. R. 448 ; Be Armstrong's Settlement, 5 W. R. 448 ; Cooper v. Macdonald, 14 W. R. 755.) Where there is difficulty in obtaining administration to, or no represen- tative of, a last-surviving trustee, the coUrt will appoint new trustees : {Davis V. Chanter, 4 Jur. N. S. 272; Be Mathews, 26 Beav. 463; Be Davis, L. Rep. 12 Eq. 214.) . (5) Saving Expense. Where it will save expense, the court will appoint trustees, thougl^ there is no difficulty in exercising the power : {Be Davies, 3 M. & G. 278 ; iZe Jlfflm.mmjr, Kay, App. 28.) (6) Imperfect Power; Where the power of appointing new trustees does not apply in the events which have happened, the court wiE exercise its powers : (Williams on Petitions, 253, citing Be Sarrison, 22 L. J. 60, Ch. ; Cooper v. Macdonald, 14 W. R. 765; Travis v. Illingworih, 2 Dr.'& S. 345; Be Dawson, 3 N. R. 397.) (7) Infancy. The court will appoint a new teustee in the place , of an infant trustee under a will (iJe Gartside, 1 W. R. 196 ; Be Porter, 25 L. J. 482, Ch.) ; without prejudice to any application by the infant to be restored to the trusteeship when he comes of age : {Be Shehnerdine, 33 L. J. 474, Oh.) (8) Residence Abroad. The court may appoint a new trustee in place of a trustee permanently residing abroad without his consent : {Be BignoU, L. Rep. 7 Oh. App; 223.) Where a trustee was resident abroad, and there was no evidence to show that he did not intend to return, the court refused to appoint a new trustee : {Be Mais, 19 Jur. 608 ; 21 L. J. 875, Ch.) ; but when it was known where, in Australia, the trustee was, the order was made : (Be aiirWsom, 22 L. J. 69, Ch.) A bookseller domiciled in New York for several years was held incapable of acting : {Mennard v. Welford, 1 Sm. & Gi£f. 426.) A temporary departure from the United Kingdom is insufficient : {Be Moravian Society, 4 Jur. N. S. 703 ; 26 Beav. 101 ; Be Watts' Settle- ment, 9 Hare, 106.) The fact that the trustee is also of unsound mind does not oust the jurisdiction of the Chancery Division : {Be Gardner, L. Rep. 10 Ch. Div. 29;40L. T. Rep. N. S. 52.) (9) Bankruptcy, Composition, &c.- Where a trustee became bankrupt, never surrehdered under the bank- ruptcy, absconded, and had not been heard of for several years, the court appointed a new trustee : {Be Benshaw, L. Rep. 4 Ch. App. 783.) 920 . Trustees. ' Where a banJmipt is a trtistee within the Trustee Act,' 1850, sect. 32 of that Act shall have effect so as to authorise the court to appoint a new trustee in substitution for the bankrupt (whether voluntarily resigning or not) if it appears to the court expedient to do so, and all provisions of that Act, and of any other Act relative thereto, shall have effect accordingly : (B. A., 1869, s. 117.) The'coxirt is the Chancery Division: {Comhis v. Brooks, L. Rep. 12llq. 61.) The section applies to a persta whose estate is in liquidation: ^ [Be Adams; L. Eep. 12 Ch. Div. 634 ; 41 L. T. Rpp. N. S. 667.) ■It is the duty of the court to remove a bankrupt trustee whenever the nature of the trust is such that he has to receive or deal with trust money so that he can misappropriate it : (Be Barker, I4. Rep. 1 Oh. Div. 43.) And where the trustee has either solely or jointly with others control over the trust property, the court will generally order his removal on the petition of the cesiwis gzte iritsfemf : (i2e .4cJam8, s™3.) The court has appointed new trustees where the truetee appointed by creditors to wind-up the estate and effects of a bankrupt under 24 & 25 Viet. c. 132, had died {Be Baphael's Trust Estate, L. Rep. 9 Eq. 233) ; where the trustees of a trust deed, registered under 24 & 25 Vict. , c. 134, had all died, and there was no power in the deed of appointing^ new trustees (Be Price's Trust Deed, L. Rep. 6 Eq. 460) ; where an assignee in bankruptcy resigned his office and went abroad the court made a ■ vesting order : (Be Jdyce, L. Rep. 2 Eq. 576.) See also Be Bache,W. N. 1868, p. 223. ■ As to the jurisdiction in lunacy, see Be Donisthorpe, Lj Rep. 10 Ch. App. 55. (10) Lunacy of Trustee. Where the trustee is a lunatic, though not so found by inquisition, the jurisdiction in lunacy applies (Be Burton's Trusts, Ir. Rep. 6 Eq. 270) ; , the petition may be presented in lunacy also : (15 & 16 Vict. c. 55, s. 10 ; Be Owen,, L. Rep. 4 Oh. 782.) (11) Doubt as to Person who holds Property. Where the trustees of a will are dead, and it is a question in whom the legal estate is, the court wiU appoint new trustees and continue a receiver already appointed : (Beeves, v. Neville, 10 W. R. 335.) (12) Where no Trustees. .Where a testator appointed no trustees, the court held, in an ad^mnis- tration suit, that it had inherent jurisdiction to appoint trustees (Dodhin V. Brwtit, -li. Rep. 6 Eq. 580) ; and so where though no trustees were originally appointed, certain persons were declared constructive trusteess 'on a petition under the Act : (Be Davis' trusts, L. Rep. 12 Eq. 214.) Whei^e all the trustees of a will died in the testator's lifetime, the court appointed new trustees : (Be Smirthwaite, L. Rep. 11 Eq. 251;) Where stock was standing in the name of a corporation which had ceased to exist, the court appointed trustees and directed them to transfer : (King of Hanover v. Bank of England, L. Rep. 8 Eq. 350.) ' (13) Disclaimer. Where both the trustees of a will disclaimed, the court appointed two other persons in substitution for such trustees (Be Tyler's Trust, 18 L. T. Rep. N. S. 105). A trustee should disclaim by deed; a disclaimer by' «ounsel appearing upon a petition is not sufficient (Be ElU^on, 2 Jur. N. S. 62) ; except where a ^rustee has never acted, in which case a disclaimer' by his counsel is sufficient : (Foster v. Dawber, 1 Drew. & Sm. 171.) Trustees. 921 (14) Invalid Tru^t Deed. ' On a petition for new trustees, the court will not enter into the question •- of the validity of the trust instrument : {Be Matthews, 26 Beav. 463.) (15) Felony of Trustee. When ai^y person is or shall be jointly or solely seised or possessed n of any lands or entitled to any stock upon any trust, and such person has been or shall be convicted of felony, it shall be lawful for the court .... upon proof of 'such conviction, to appoint any person to be a . trustee in the place of such convict, and to make an order for vesting '. Such lands, or the right to transfer such stock, and to receive the dividends or income thereof, in such person to be so appointed trustee ; and such order shaU have the same effect as to lands as iE the convict trustee had been free from any disability, and had duly executed a con- veyance or assignment of his estate and interest in the same : (Tr. Ext., A., 1852, s. 8.) (16]f Re-appointing Trustees. Where new trustees have been appointed under a power, on a petition for a vesting order, the court wiU re-appoint the new trustees, and vest the property in them: [Be Mundel, 6 Jur. N. S. 880 ; Be. Clay, W. N: 1873, p. 129 ; Be Dalgleish, L. Rep. 4 Ch. Div. 143 ; 35 L. T. Rep. N. S. 829 ; Be Crowe, L, Rep. 14 Ch. Div. 304, 610; 43 L. T. Rep. N. S. 112; 49 L. J. 442, Ch. ; 28 W. R. 806.) In such a case evidence of fitness is required : (Be Maynard, 16 Jur. 1084 ; Be Dalgleish, sup.) (17) Testing Order of Leasehold. ' Where the prOT)erty is leasehold, a vesting order may be made : {Be Matthews, 2 W. R. 85 ; Be Dalgleish, L. Rep. 4 Ch. Div. 143.) (18) Removal of Trustee or Donee of Power. Where the trust deed, gives power to appoint a new trustee, and the party is willing to exercise that power, the Act gives no jurisdiction to the court to appoint a new trustee {Be Sodson's Settlement, 9 Ha. 118 ; 15 Jur. 552). Not can a trustee be removed by virtue of the Act if he' is willing to perform the trusts: {Be Blanchard, 3 D. F. & J. 131; 4 L. T. Rep. N. S. 426.) The fact that a trustee is a solicitor does not alter the cases except as to acts done by bim as a solicitor, and not as a trustee : {Id.) The court refused to appoint a new trustee in the place of one who had executed the trust deed and declined to act : {Be G-artz, 10 L. T, Rep. N. S. 331.) , Where trustees of a will declined to act, new ones were appointed : {Be Bheppard, 4 D. F. & J. 423 ; Be Martinez, 22 L. T. Rep. N. S. 403.) An action is necessary to remove a trustee who is williig to act {Be Blanchard, swp. ; Be Bignold, L. Rep. V Ch. App. 223)^. except in the case of bankruptcy. (19) Who Appointed. A person absolutely entitled to stock was appointed trustee for his own - benefit, and the stock ordered to be transferred to hbn : {Be Dichson, W. N. 1872, p. 223.) , In selecting a new trustee, the court regards the wishes of the author of ,the trust as collected from the instjtenent creating the trust; A person win not be appointed with a view to the interest of some of the cestui que trustent in opposition to the interests of others. The court will have regard" to the question whether the appointment will promote or impede the execution of the trust ; but the mere fact of the continuing trustee 922 • Trustees. i-ef using to act with the proposed trustee is not sufficient to prevent the_ appointment : [Be Tempest, L. Rep. 1 Oh. App. 485.) The court will not in general appoint a cestui que trust to be a trustee : '{Be Oonyhea/re, 1 W. R. 458; Hx parte Glutton, 17 Jur. 988.) But where the trusts were complicated, and a stranger could not be found, a cestui que trust was appointed : {Be Clissold, 10 L. T. Rep. N. S. 642.) A near relative of the cestui que trust will not generally be appointed {Wilding v. Bolder, 21 Beav. 224) ; but the husband of 'a cestui que trust was appointed on undertaking to apply for the appointment of an addi- tional trustee : {BeHattatt, 18 W. B. 416.) An unmarried lady of indmendent property, and not exercising any calling, was appointed : {Be Ca/m/pbell's Trusts, 31 Beav. 176 ; but see Brook V. Brook, 1 Beav. 531.)- An alien has been appointed : {Be Sill, W. N. 1874, p. 228.)- Persons resident out of the jurisdiction wiU not in general be appointed (Be Guibert, 16 Jur. 852) ; but have been appointed under special circum- stances : {Be Curtis, Ir. Rep. 5 Bq, 429.) Where all the parties interested under a will resided in Australia, and the will permitted the investment of the trust funds in Australian securities, the court appointed new trustees residing in Australia, though some of the parties interested were infants, and the will contained a power, of appointing a new trustee in place of any who went beyond the seas for permanent residence ■ {Be Liddiard's Trusts, 42 L. T. Rep. N. S. 621 ; L. Rep. 14 Oh. Div. 310 ; and see Be Srmth, 20 W. R. 695.) - One of the firm^ of solicitors for the petitioners has been appointed {Be Brentnall, W. N. 1872, p. 77) ; but in a recent case (Nov. 13, 1880) Cotton, L. J., refused to appoint the three members constituting the firm of solicitors acting for the trust as trustees. (20) Number Appointed. But the court wiQ not appoint a sole trustee where there were more originally {Ellison's Trusts, 2 Jur. N. S. 62 ; Porter's Trusts, id. 349 ; Be Dickinson, 1 Jur. N. S. 724 ; and see Viscountess D'Adhema/r v. Bertrand, 35 Beav. 20 ; except under very special circumstances : {Be Beynault, 16 Jur. 233.) Two trustees have been appointed in the place of one {Sx -pa/rte Twnstall, 4 De G. & S. 421 ; 3 My. & Or. 292 ; Birch v. Cropper, 2 De G. 6 S. 255 ; Plenty v. West, 16 Beav. 356 ; and new trustees have been added to the original trustees : (Be Boycott, 5 W. R. 15 ; Be Brackenbury, L. , Rep. 10 Bq. 45.) The court has under special circumstances appointed two /in place of three {Be Marriott, 18 L. T. Rep. N. S. 749 ; Bulkeley v. Uarl of EgUnton, 1 Jur. N. S. 994) ; and three in place of four : {Binmet v. Clarke,. 7 Jur. N. S. 404.) Where a trustee has wished to retire or has gone abroad, and a successor could not be found, the continuing trustees have been appointed sole trustees : {Be Stokes, L. Rep. 13 Eq. 333 ; 26 L. T. Rep. N. S. 181 ; Be Tatham's Trusts, W. N. 1877, p. 259 ; Be Hwrford, L. Rep. -13 Oh. Div. 135 ; 41 L. T. Rep. N. S. 382 ; Be Shipperdson, W. N. 1880, p. 155 ; Be Gibbin, W. N. 1880, p. 99 ; Be Northrop, W. N. 1880, p. 184.) Cotton, L.J., declined to follow Be Stokes' Trusts, and Be Hfirford's Trusts, and to reappoint the two existing trustees in the place of three, when, the effect would be to oust one of the trustees ; and required the original number to be filled up : {Be Colyer, W. F., 1880, p. 131 ; 43 L. T. Rep. N. S. 454) ; and the same judge and James, L.J., have twice followed this decision. Trustees. 923 Ten trustees of a ©harity have been appointed, the estate being vested in the whole body, and a direction being given that when they were reduced to three the trustees should apply at chambers for a newappointmenf : {Be BerghoU, 2 Eq. Rep. 90.) 3. Applications. (a) Where Made. Where the trustee or mortgagee is a lunatic, so fotmd or not, the petition, if it affects his estate must be presented to the jurisdiction in - lunacy (Tr. A., 18S0, ss. 3, 6) ; unless such trustee is also an infant (JSe Arrowsmith, sup.) or out of the jurisdiction : (JJe Gardner, L. Rep. 10 Ch. Div. 29 ; 40 L. T. Rep. K. S. 62.) Where the donee of the power of appointment is lunaticx the petitioi may be presented in the Chancery Division : {Be Sparrow, L. Rep. 5 Oh. App. 662.) _ , Where the unsoundness, of mind is contested, the case is not within the Act at aU : {Be Walker, Cr. & Phil. 147 ; Be Campbell, 18 L. T. Rep. N. S. 202.) A petition mnst be presented in the Chancery Division and in lunacy : — (1) When one of several trustees is a lunatic, and a new trustee is to be appointed and a vesting order made of real estate : {Be Pea/rson, L. Rep. 5 Ch. Div. 982 ; 37 L. T. Rep. N. S. 299 ; 46 L. J. 670, , Oh. ; 25 W. R. 853.) (2) When a vesting order in new trustees is required of stock standing in the name of a lunatic trustee : {Be Gurrie, L. Rep. 10 Ch. Div. 93 ; 40 L. T. Rep. N. S. 110 ; 27 W. R. 369.) A petition for appointment in place of a lunatic trustee of property partly Irish, and for a vesting order, must be presented in lunacy and iii the Chancery Division : {Be Lamotte, L. Rep. 4 Oh. Div. 325 ; Be Hodgson, L. Rep. 11 Ch. Div. 888 ; 41 L. T. Rep. N. S. 327.) Where an order appointing a trustee is made by the lunacy juris- diction in place of a lunatic, other trustees may be appointed by the- same order, although the petition is not intituled ia the Chancery Division : {Be Owen, L. Rep. 4 Ch. App. 782 ; but see Be Boyce, 12 W. R. 359.) '. A new trustee may be appointed in place of a lunatic not so found, either in lunacy or in the Chancery Division : {Be Owen, svp. ; Be Donis- thorpe, L. Rep. 10 Oh. App. 55 ; Be VicTcers, L. Rep. 3 Oh. Div. 112.) , (6) By whom Made. , An order under any of the [previous] provisions for the appointment of a new trustee or trustees, or concerning any lands, stock, or chose in action, subject to a trust, may be made upon the application of any person beneficially interested in such lands, stock, or chose in action, whether under disability or not, or upon the application of any person duly appointed as a trustee thereof ; and .... an order under any of the [previous] provisions .... concerning any lands, stock, or chose in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the moneys secured by such mortgage : (Tr. A., 1850, s. 37.) Where there are infants eestuis que irustent they should join by their next friend : {Be Fellows, 2 Jur. N. S- 62.) A lunatic cestui que trust petitions by his next friend ; an order not being made on the petition of the committee alone : {Be Bourhe, 2 De G. J. & S. 426.) 924 ~ - Trustees. In the pase of a lunatic mortgagee, the committee may petition: (Be Wheeler, 1 De G. M. & Or. 434.) A person who has a contingent interest in real estate may petition for new trustees : (Be Sheppard, 4 D. F. & J. 423.) A trustee with a power of sale represents the cestuis que trustent -. (Be Blanchard, 3 D. F. & J. 131 ; Paetibs.) ■ Plaintiff creditors in an administration suit interested in proceeds of sale of real estate may apply for a vesting order : (Be Wragg, 1 De G. J. & S. 356.-) Where a decree for sal6 has been made, a petition may be presented by a purchaser whose money was in court : (Ayles V. Cox, 17 Beav. 584 ; Goitgh T. Bage, 25 L. T. Eep. N. S. 7^8.) Three purchasers of different lots may join in one petition : (Bowley v. Adams, 14 Beav. 130.) ', A newly-appointed trustee may petition : (JEkc pa/rte Bussell, 1 Sim. 'N.S.'404.) . (c) How made. Any person or persons entitled .... to apply for. an order from the .... court .... mays should he so thint fit, present a petition in the first instance to the court for such order, as he may deem himself entitled t6:.(Tr. A., 1850, s. 49.) [Application may be made by summons after] a decree or order .... for site or conveyance of any lands, manors, messuages, tenetnents or hereditaments, corporeal or incorporeal, of any tenure or deppription, what- ever may be the estate or interest therein : (0. O., 35, r. 1.) . But a vesting order cannot be made in chambers, even by the judge himself, of the right to transfer stock : (Frodsham v. Frodsham,X'. Rep. 15 Ch. Div.. 317 ; 43 L. T. Rep. N. S. 558.) ■ A cestui que trust may, instead of petitioning, bring an action for the . appointment, of a trustee (Legg v. Machrell, 4 L. T. Rep. N. S. 568) ; but the plaintiff may be ordered to pay the difference in costs (Thomas v. Walhei-,' 18 Be&Y. 521.) ■ An action is necessary to remove a trustee against hi^ will (svp. 2 {/) (18)) ; or where there is a disputed question of title : (Be Draper, 9 W. R. 805.) ■ ■ , An order may be made in a cause without a petition : (Wood v. Beetle- stone, 1 Kay & J. 213 : Lechmere v. Glamp, 30 Beav. 218 ; Viscov/ntess 'B^Adhemar v. Bertrand, 35 Beav. 19 ; Harrison v. Srvdth, 17 W. R. 646 ; and see Be Holbrook, 8 W. R. 3.) -An order removing a trustee and vesting the trust property may be made on motion for judgment on default in pleading : (Fisher v. Huqhes, 21 8. J. 478.) 1- s V y , A petition in a cause should be entitled in the matter of the Act, in the cause, if any (Gough v. Bage; 25 L. T. Rep. N. S. 738) ; and in the particular mattfer : (Ayok. 611.) In case of a charitj-, the petition must also be intituled in Romilly's Act and any other Acts applicable : (Be Gloucester ChaHties, 10 Hare App. •iij. ; Be Conyers- Grammar School, Id. v.) As to obtaining the Attorney-General's fiat, see Be Bolles Charity, 22 L. J. 760, Oh. ; and see Ohakities, II., 9; Lewin, 723;) Where property is vested in a lunatic, a petition in lunacy is necessary : . (Jeffryes v. Brysdale, 9 W. R. 428.) (d) Service. [The petitioner] may serve such person or persons with notice of such petition as he may deem entitled to the service thereof: (Tr. A., 1850, s. 40.) • Trustees. 925 ,^ Where the appointment of trustees is jietitioned for, as a general rule, all the ce&tui que trustent must be served or join in the application [Be jRiehards, 5 De G. & Sm. 636 ; Be Fellows, 2 Jur. N. S. 62 ; as to infants, see Be Fellows (id.), and Be Youfig, 21 L. T. Rep. N". S. 556.) Trustees having a power of sale represent the cestuis que trilsieht : (Be Blanchard, 3 D. P. & J. 131.) Where the parties are numerous, some of the cestuis que trustent may be represented by others : (Be Smyth, 2 De G. & Sm. 781 ; Be Blanchard, 3 De G. F. & J. 131 ; Be SharpUy, 1 W. R. 271.) Where new trustees 'are appointed in the place of existing trustees, the latter must be served : (Be Sloper, 18 Beav. 69Sy Futvoye v. Kennard, 3 L. T. Rep. K". S. 687.) " > ' Trustees refusing to transfer or convey need not be served with notice of an application for an order under sects. 23 or 24 {Be Baxter, 2 Sm. & Giff. App. V.) ; and the same rule applies as to a mortgagee : (Be Crowe, L. Rep. 13 Eq. 24; Be Russell, 1 Sim. N. S. 409.) . A petition for appointment in place of a bankrupt trustee need not be served when he has absconded: {Combes v. Broohes, L. Rep. 12 Eq. 61;^ Be Benshaw, L. Rep. 4 Oh. App. 783.) ' And generally when the appointment is in place of a trustee perma- nently residing out of the jurisdiction, the petition need not be served on' him: (J2ePj^e, 42L. T. Rep.N. S. 247.) T-n cases otherthan those of heirs of mortgagees, and bare trustees' (37 & 38 Viet. c. 78, s. 4 ; 38 & 39 Vict. c. 87, s. 48), a petition for a vesting order, or appointment of person to convey, need not be served on the infant heir of a trustee or mortgagee, or his guardian : {Be Tweedy, 9 W. R. 398 ; Be Wise, 5 De G. & Sm. 415 ; Be Little, L. Rep. 7 Eq. 323 ; but see Be Cooper, 9 W. R. 531 ; Be Jones, 22 W. R. 837.) Service of the petition on the infant heir is necessary Where the visndqr died before conveying: {Be Bussell, W. IS., 1866, p. 125, where a guardian was appointed.) As to whether service is required where the heir is of age, compajre Purvis V. Abraham, W. K, 1866, p. 126, and Be Oxenham, W. N., 1876, p. 6.) ' ■ ' • , Where aU the trustees have died before the testator, his heir must be served : {Gunson v. Simpson, L. Rep. 5 Eq. 332 ; Be Smirthwtiite, L. Rep. llEq. 251.) A mortgagor in whom the estate is vested, and by whom it is asked th^t ■ it may be conveyed, should be served : {Be Phillips, L. Rep. 4 Oh. App. 629 ; Be Jones, L. Rep. 2 Oh. Div. 70.) A trustee of unsound mind not so found need not be served with a petition for a trustee or vesting order: {Be East, L. Rep. 8 :Ch. App. 735 ; Be Green, L. Rep. 10 Ch. App. 272.) The committee of a lunatic must be served : {Be Savmerez, 8 D. M. ifc ■ G. 390 ; Be Wood, 7 Jur. N. S. 323.) A vesting order of an estate subject to an annuity may be obtained without service on the annuitant : {Be Winteringham, 3 W. R. 578.) As to service on the freeholder where leaseholds are afEeoted, compare Be Matthews, 2 W. R. 86 ; Be Farrant, 20 L. J. 532, Oh.) A petition by a tenant for life for a vesting order to a new trustee, appointed in the place of a trustee out of the jurisdiction, must be served on the remainderman : {Be Mayna/rd's Settlement, 16 Jur. 1084.) The lord of the manor need not be served where copyholds are afBected : {Patterson v. Patterson, L. Rep. 2 Eq. 31.) , „ t -o Service out of the jurisdiction may be ordered : {Be Wycherley, 7 h. R. Ir. 12.) 9^6 Trustees. A petition for a preliminary order, imder sect. 4 of the Act of 1852, need not be served on- the trustee : {Be Mount, 24i L. T. Rep. N. S. 290.) 4. Evidence. [The petitioner] may give evidencfr by affidavit, or otherwise, in support of such petition before tie said court . . . . : (Tr. A., 1850, s. 40.) A-n application to divest an estate must be supported by strict evidence,: {Be Tmell, 4 K. & J. 338 ; Be Wise, 5 De G. & S. 416.) The devolution of "the beneficial estate may be traced by affidavit with- out strict evidence by certificates and affidavits of identity : (Lewin, 887, citing Be EosTevns, 4 De G. & J. 436.) - The legal title must be strictly proved. Death or disability of trustees must be strictly proved : ( Wms. Pet.^ 261.) ' Affidavits used in an action have been allowed on petition : {Be Pick- nance, 10 Hare App. xxxv.) An affidavit of ^tness of proposed trustees ought not generally to be made by the solicitor : {Grundy v. BucTcridge, 22 L. J. 1007, Ch. ; Be Hartley, W. N., 1879, p. 197.) An affidavit of one person as to fitness is sufficient to Satisfy Cotton, L.J., sitting in lunacy, but Hall, Y.O., requires two persons to testify, An ordei; wiU be made without a reference to chambers : {Re Battersby, 16 Jur. 900.) The court requires the written consent of the proposed trustees : {Id.) • The signatures to the consent must be verifiedby affidavit : {Id.) ^ It is unnecessary to produce a disclaimer under seal : (Seton, 548.) A renunciation of probate has been required from an executor befbre resting the estate in a co-executor : {Be Badcoele, 2 "W. R. 386.) Ilew trustees were appointed, and a vesting, order of r§al estate mad,e, 'before a will was proved, on evidence of due execution: {Be Wickens, W. N. 1879, p. ISI.) The lord of the manor should not appear to consent to a vesting order 6f copyhold, but his written consent must be produced, verified by ■affidavit: {Ayles v. Cox, 17 Beav. 584.) ' . 5. Heabing. Upon the hearing of any such petition it shall be lawful for the said court) should it be deemed necessary, to direct a reference to [chambers .for inquiry] into any facts which require such an investigation, or it shall be lawful for the said court to direct such motion or petition to stand over, to enable the petitioner or petitioners to adduce evidence or further evidence before- the said court .... or to enable notice or any further notice of such motion or petition to be served upon any person or persons : (Tr. A., 1850', s.'41 ; Stat. L. R. A., 1875.) Generally the proposed trustees should not appear by counsel: (lie ' Draper, 2 W. R. 440 ; JBe Parker, 21 L. T. Rep. 218.) - ^ ' Upon any petition .... being presented .... the .... court .... [may] postpone majdng any order upon such petition until the right of the petitioner or petitioners has been declared in [an action] duly instituted for that purpose : (Tr. A., 1850, s. 53.) For cases where suits have been directed, see Be Burt, 9 Hare, 289 ; B,e Cm-penter, Kay, 418; Be ColUnson, 3 De G. M. & G. 409; Be Weeding, 4 Jur. N. S. 707.) Upon the hearing, .... whether any certificate or report shall have been obtained or' not, it shall be lawful for .... the court to dismiss 8uch_. . . . petition, with or without costs, or ... . make an order thereupon in conformity with the provisions of [the] Act : (Tr. A., 1850, -s. 42; Stat. L. R. A.,1875.) Trustees. 927 6. OaDBE. Whensoever, in any cause or matter, either by the evidence adduced therein, or by the admissions of the parties, or by a report .... the facts necessary for an order ... appear to the court to be sufficiently proved, it shall be lawful for the said court, either upon the hearing of the said canse or of any petition or motion in the said cause or matter, to make such order : (Tr. A., 1860, s. 43.) ; , Where any order shall have been made under any of the provisions of [the Trustee Act], vestmg the right to any stock in any person or persons appointecl.by .... the Court .... such legal right shall vest accord- ingly, and thereupon the person or persons so appointed are .... authorised and empowered to execute all" deeds and powers of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names or otherwise, or relating to tha receipt of the dividends thereof, to the extent and in conformity with the terms of such order ; and the Bank in trust in any cause then depending concerning such money, or, if there shall be no such cause, to the credit of such infant or person of unsound mind, subject to the order or disposition of the .... court ; and it shall be lawful for the court upon petition in a summary way, to order any money so paid to be invested in the public funds, and to order payment or distribution thereof, or payment of the dividends thereof, as to the said court shall seem reasonable ; and every cashier of the Bank of England who shaE receive any such money is . . . required to give to the person paying the same a receipt for such money, and such receipt shall be an effectual discharge for the money therein respectively expressed to have been received : (Tr. A., 1850, s. 48.) IV. TRUSTEE RBLIEP ACTS, 1847 AND 1849. 1. Who May Pat, ob Teanspee into Oouet. / (a) Without Order. All trustees, executors, administrators, or other persons, having, in their hands any moneys belonging to any trust whatsoever, or the major part of them, shall be at liberty, on filing an affidavit shortly describing the instrument creating the tmist, according to the best of their knowledge and belief, to pay the same, with the privity of the [Paymaster-General] into the Bank of England, to the account of such [Paymaster- General] in the matter of the particular trust (describing the same by the names of the parties, as accurately as may be, for the purpose of distinguishing it), in trust to attend the orders of the said court : (Tr. R. A., 1847 ; 10 & 11 Vict. c. 96, s. 1.) A trustee must have ownership of the property subject only to an equity in favour of the cestuis que trustent : (Smith v. Anderson, L. Rep. 15 Oh. Div. 247 ; 43 L. T. Eep. N. S. 329.) An owner of an estate charged with a sum in favour of another is not a trustee : (Be Buckley, 17 Beav. 110.) Trustees. 933 The survivors or survivor of trustees may pay money in : (Ayck., 453.) Trustees willing to execute the trust without the court's aid are not bound to pay in (Mountain v. Young, 18 Jur. 769) ; but where trustees, requested to pay trust funds into court by cestuis que trustent, declined, and a suit was accordingly instituted to secure the fund, the trustees had . to pay the costs thereof : (Ayck., 453.) Trustees of a charity may pay money in without the consent of the Charity Commissioners, but it is proper to apply first to such commis- sioners : (Be Poplar and Blachwall School, L. Rep. 8 Ch. Div. 543 ; 39 L. T. Rep. N. S. 88 ; 26 W. R. 827.) The relation between an assurance company and a person claiming the moneys due under the policy is one of debtor and creditor; there is no trust or constructive trust to entitle the company to pay the money into court under the Trustee Relief Act ; and the payment into court is no defence to an action for the moneys, unless the case comes within sect. 25, sub-sect. 6, of the Judicature Act, 1873 : [Matthew v. Northern Assurance Company, L. Rep. 9 Ch. Div. 80 ; 38 L. T. Rep. N. S. 468 j 47 L. J. 562, Ch. ; 27 W. R. 61.) As to whether a trustee holding a chose in action to which a married woman is entitled, is entitled to pay it into court, compare Re Swan, 2 H. & M. 34 ; Be Roberts, W. N., 1869, p. 88.) The objection that there is no trust to justify payment in cannot be taken on a petition for payment out : (-Be Haycoch, L. Rep. 1 Ch. Div. 611 ; Be Sutton, L. Rep. 12 Ch. Div. 175 ; 48 L. J. 355, Ch. ; 27 W. R. 529.) 'All trustees, or other persons, having any annuities or stocks standing in the books of the Govemo* and Company of the Bank of England, or of the East India Company, or South Sea Company, or any government or parliamentary securities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon any trusts whatsoever, or the major part of them, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said [Paymaster-General], with his privity, in the matter of the particular trust (describing the same as aforesaid), in trust to attend the orders of the said court : (Tr. R. A., 1847, s. 1.) Bonds of a foreign Government are not included : (Be Lloyd, 2 W. R. 371.) But railway stock may now be transferred into court under this Act and sect. 3 of the Chancery Funds Act : (Be Boss, 28 W. R. 418.) [Where there has been] any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person, from whom the assignor would have been entitled to receive or claim such debt or chose in action . . . . , if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor, or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees : (J. A., 1875, s. 25, sub-s. 6.) The section does not apply in the case of conflicting claims to money on deposit in a bank, where there has been no absolute assignment in writing : (Be Sutton, L. Rep. 12 Ch. Div. 175.) 934 Trustees. (b) Under Order. If, upon any petition presented to the [Chancery Di-yision] in the matter of the [Trustee Relief] Act, it shall appear to the judge of the court .... before whom such petition shall be heard, that any moneys, annuities, stocks, or securities, are vested in any persons as trustees, executors, or administrators, or othervrise,',upon trusts within the meaning of the said .... Act, and that the major part of such persons are desirous of transferring, paying, or delivering the same to the [Paymaster- General] of the .... Court .... under the provisions of the said . . . Act, but that for any reason the concurrence of the other or others , of them cannot be had, it shall be lawful for such judge as aforesaid to order and direct such transfer, payment, or delivery, to be made by the major part of such persons without the concurrence of the other or others of them : (Tr. R. A., 1849 ; 12 & 13 Vict. c. 74, s. 1.) Railway debenture stock, railway consolidated stock, and India 4Z. per cent, stock, have been ordered to be paid in : (Be Oledstane's Trusts, W. N., 1868, p. 26.) Where one of three trustees was of unsound mind, an order was made (Jn the petition of the others : (Se Broadwood, 8 L. T. Rep, N. S. 632.) The petition must be served on the non-concurring trustees : (Re Brya/nt, W. N. 1868, p. 123.) Where any such moneys or Government or parliamentary securities shall be deposited with any banker, broker, or other depositary, it shall be lawful for such judge as aforesaid to make such order for the payment or delivery of such moneys. Government or parliamentary securities,- to the major part of such trustees, executors, administrators, or other persons as aforesaid, for the purpose of being paid or delivered to the said [Paymaster- General] as to the said judge shall seem meet : (Tr. R. A., 1849, 8. 1.) Every transfer of any annuities, stocks, or securities, and every pay- ment of money or delivery of securities, in pursuance of any such order, shall be as valid and. efEectual as if the same had been made on the authority or by the act of all the persons entitled to the annuities, stocks, or securities so transferred, or the moneys or securities so paid or delivered respectively, and shall fuUy protect and indemnify the Governor and Company of the Bank of England, the East India Company, and the South Sea Company, and all other persons acting under or in pursuance of such order : (Tr. R. A., 1849, s. 1.) 2. Amount Paid is. Unless the trustees pay in the whole fund, if there is no mistake or ground of justification, they have to bear the costs of accounting for the balance : (Mitchell v. Gobi, 17 L. T. Rep. O. S., 25.) The reasonable costs of payment in may be deducted where no dispute has arisen, or is likely to arise as to the deduction : (Beaty v. Curson, L. Rep. 7 Eq. 194.) 3. Ari'iDAViT. (a) FiUng and Contents. A trustee or other person desiring to pay money or transfer securities into, or deposit securities in court, under the Act 10 & 11 Vict. c. 96, shall file an affidavit, entitled in the matter of the same Act, and in the matter of the trust, and setting forth : — (1.) His own name and address. (2.) The place where he is to be served with any petition, summons, or order, or with notice of any proceeding relating to such money or securities. Trustees. 935 (3.) The amount of money and description and amount of securities which he proposes to pay or transfer into, or deposit in court, and the credit to which he wishes it to be placed ; and if such money or securities are chargeable with legacy or succession duty, a statement whether such duty or any part thereof has or has not been paid. (4.) A short description of the trust, and of the instrument creating it. (5) The names of the persons interested in or entitled to the money or securities, and their places of residence, to the best of his knowledge and belief. (6) His submission to answer all such inquiries relating to the appli- . cation of the money, stock, or securities, paid or transferred into or deposited in court under the Act, as the court or judge may make or direct. (7.) A statement whether the money so to be paid into court, or the dividends on the securities so to be transferred into, or deposited ia court, and all accumulations of dividends thereon, are desired to be invested in Consolidated 3/. per cent. Annuities, or reduced 31. per cent. Annuities, or New 31. per cent. Annuities, or whether it is deemed unnecessary so to invest the same, or to place the same on deposit : (Oh. F. R., 1874, r. 34.) The affidavit must not relate tne history of the trust {Be Waring, 16 Jur. 652) ; but it is the duty of a trustee paying money into court to mention in the affidavit, or by a supplemental affidavit, all claims on the fund of which he receives notice. Where a trustee who had filed an affidavit before transferring funds into court, subsequently, but before the money was paid in, became aware that an assignee of some of the funds had placed a distringas thereon, omitted to mention the claim of such assignee, in his subsequent affidavit, and the assignee, in order to prevent the ' fnnds being transferred out, obtained a stop-order, the trustee was held personally liable for the costs thereof : (Be Allen, 40 L. T. Rep. If. S. 456.) All the trustees should properly join in the affidavit, but under particular circumstances the court orders the Paymaster- General to receive the affidavit of one of several : (1 Jur. N. S. 974.') (b) Printing. Affidavits under this rule are to be printed under the superintendence of the Masters of the Supreme Court, upon cream wove machine drawing foolscap folio paper 191b. per mill ream, in pica type leaded, with an inner margin abont three quarters of an inch wide, and an outer margin about two inches and a half wide: (Ch. F. R., 1874, r. 34; Ch. O. 15th May, 1862, r. 2 ; C. O. 9, r. 3.) Dates and sums occurring therein are expressed by figures instead of words (C. O. 9, r. 3), and the affidavits are printed in all other respects in such form and manner as the Masters of the Supreme Court deem to be convenient : (Id.) Solicitors and parties, on filing affidavits .... required to be printed, are to leave with the Masters of the Supreme Court a fair copy of each, affidavit .... written on draft paper on one side only, and certified to be a correct copy : (Ch. F. R., 1874, r. 34 ; Ch. 0. 16th May, 1862, r. 3.) The Chancery Paymaster [will] not act upon an office copy of any such affidavit .... which is not so printed : (Ch. P. R., 1874, r. 34.) 4. DlEBCTION FOB PLACING TO TeUST AcOOTJlfT. The Chancery Paymaster, on production of any such affidavit 936 Trustees. [gives] the necessary directions for sneh payment, transfer, or deposit to the account of the particular trust mentioned in the nffidavit : (Oh. F. R., 1874, !■. 34.) 5. Title op Account. The money must not be paid in by an executor to an account "The trusts of the testator's will, as this implies a general administration, but the account must be made as limited as possible : (Lewin, 855 ; Morg. & 'Oh. 67.) Money paid in to a too general' account may be ordered to be carried over to a moi-e particular account -. (Lewin, 855 ; Morg. & Oh. 67.) 6. Receipt or Cebtipicatb pok Money, Stocks, oe Secueities. In eveiT such case [mentioned gwp., (a)] the receipt of one of the cashiers of' the said bank for the money so paid, or, in the case of stocks or securities, the certificate of the piroper officer, of the transfer or deposit of such stocks or securities, shm be a sufficient discharge to [the] trustees or other persons for the money so paid, or the stocks or securities so transferred or deposited : (Tr. R. A., 1847, s. 1.) The payment into court is a discharge only as to the money paid in, and leaves the trustee liable to a suit in respect of the costs deducted by him, or in respect of any other moneys that might be recovered upon the footing of the trust ; and the trustee cannot require a fund to be kept in court to indemnify him against threatened proceedings : (Lewin, 856.) 7. Bppect op Payment In. The payment in gives the court jurisdiction only as to the fund paid in, and not generally over the trust : (Ayck, 453.) TSie payment in does not invest the court or Paymaster-Greneral with the character of trustee : (Jd.) The trustees, by paying in, retire from the trust, and cannot afterwards exercise its powers (Lewin, 856 ; Be Poplar and Blachwall School, L. Rep. 8 Oh. Div. 543; 39 L. T. Rep. N. S. 88 ; 26 W. R. 827) ; but it is otherwise where the trustees have a discretionary power as to the application of the fund : {Be London, 40 L. J. 370, Oh.) 8. -Notice op Payment In. A person having made a payment or transfer of money or securities into, or a deposit of securities in court .... [must] lorthwith give notice thereof to the several persons named in his affidavit .... as interested in or entitled to such moneys or securities: (Oh. P. A. O., 1874, r. 5.) Where a cestui que trust was believed, but not known, to be in New York, notice by publication in two newspapers there was directed : (Be Goodmcm, W. N. 1870, p. 152 ; see also Be Hansford, 7 W. R. 199, 254 ; Be Palmer, W. N. 1873, p. 101.) Where the parties are very numerous substituted notice may be ordered : (Be Colson, 2 W. R. 111.) Where, on payment into court, the address of the person interested in "the fund was not known, the court declined to give any direction as to how the notice required by the Chancery Funds (Amended) Orders, 1874, r. 5, should be given, holding that the party paying in the fund ought to take that reBponsibility upon himself (Be Mwrdley, L. Rep. 10 Oh. Div. 664 ; 40 L. T. Rep. N. S. 409 ; 48 L. J. 335, Oh.) ; James, L.J., intimated, however, that if the applicant wrote to the brother in England of such person and advertised in newspapers in the country in which he had last been heard of, the court would consider that the applicant had done everything incumbent on him : (Id.) Trustees. ' 937 9. Investment and Payment op Dividends. Such orders as shall seem fit shall be from time to time made by the Court .... in respect of the trust moneys, stocks, or securities so paid in, transferred, and deposited as aforesaid, and for the investment .... ■of any such moneys, or of any dividends or iiiterest on any such stocks or securities: (Tr. R. A., 1847, s. 2.) [Application for such order may be made by] a petition to be presented in a summary way .... by such party or parties as to the court .... shall appear to be competent and necessary in that behalf : (Tr, B. A., 1847, s. 2.) The service of the petition is regulated by the same section and roles as service of a petition for payment out : (see post, 10.) An investment in New Three per Cent. Annuities has been ordered : {Be Bunster, 3 W. R. 267 ; see also Be Sillar, W. N. 1871, pi 3.) All dividends subject at the commencement of [the] rules to be invested in pursuance of [the Consolidated Order 41, rule 3], may, where or so soon as they exceed 102. be invested as if the said 3rd rule had not been abrogated : (Ch. F. R., 1874, r. 66.) [Where it is deemed unnecessary to have the money or the dividends or interest of stock or securities invested in the mean time, the affidavit shall further contain a statement to that effect. But where the affidavit' contains no such statement, the [Paymaster- General] shall be at liberty to invest, as soon as conveniently may be, the money in Bank 3Z. per Cent. Annuities ■ in the matter of the particular trust, or in cases of dividends or interest on stock or securities transferred, such dividends or interest in the like stock, and aU accumulations of the dividends of the stock in which such money shall be invested, and of the dividends or interest on such stock or securities as aforesaid, from time to time in the like matter, without any special order made by the court in that behaK, and without any formal request for that purpose. Provided always, that where at any time a request in writing, by or on behalf of any party claiming to be entitled, that such investment be discontinued, is left with the [Paymaster-General], he shall be at liberty to cease making any further investment in the matter of the particular trust until the court shall have made some order in that behalf : (C. O. 41, r. 3.)] When the affidavit contains a statement that it is desired' that the money intended to be paid into court in pursuance of the Act, or the dividends accruing on the securities intended to be transferred or deposited in pursuance of the said Act, and the accumulations thereon, shall be invested in Consolidated SI. per Cent. Annuities, or Reduced 3Z. per Cent. Annuities, or New 3Z. per Cent. Annuities, the Chancery Pay- master shall (if or so soon as such money shall amount to such dividends or shall amount to or exceed lOi.) invest the same respectively in Con- solidated 32. per Cent. Annuities, or Reduced 32. per Cent. Annuities, or New Three per Cent. Annuities, without any order or further request for that purpose : (Ch. F. R., 1874, r. 66.) If such money does not amount to 402., the Chancery Paymaster [will, unless the sum is under 102.] as soon as conveniently may be, place such money on deposit without a request for that purpose, unless such affidavit contains a statement that it is deemed unnecessary to place such money on deposit, or unless notice in writing be left at his office of an order having been made, or of an intended application to the court affecting such money, securities or dividends : (Ch. F. R., 1874, r. 66.) Income has, by one order, been directed to be paid to the first tenant for life, and after proof of his death, to the second tenant for life : {Be Brent, 8 W. R. 270.) 938 Trustees. 10. Administeation and Payment Out. (a) Application. (1) How made. Such orders as shall seem fit shall be from time to time made by the [Chancery Division] in respect of the trust moneys, stocks, or securities so paid in, transferred, and deposited as aforesaid, and for the investment and payment of any such moneys, or of any dividends or interest on any such stock or securities, and for the transfer and delivery out of any such stocks and securities, and for the administration of any such trusts fenerally, upon a petition to be presented in a summary way to the Chancery Division] without [action] : (Tr. B. A., 1847, s. 2.) Where an executor, after paying in, discovered debts of the testator, the money was paid back to him on Ms undertaking to apply it properly : (Dx parte Tournay, 3 De G. & Sm. 677.) [An application may be made] by petition, or in cases where the fund does not exceed 300?. cash, or 3001. in securities, by summons, as occasion may require, respecting the investment, payment out, or distribution of the money or securities, or of the dividends or interest of such securities : (Ch. T. A. O., 1874, r. 6.) The application cannot be made by motion (Be Masselin, 15 Jnr. 1073) ; by action (Felling v. Goddard, L. Rep. 9 Ch. Div. 185) ; on further directions in an action : {Otte v. Cattle, 1 W. B. 64.) Where an order has once been made on petition, further proceed- ings may be taken at chambers : (Be Hodges, 4 D. M' & G. 491.) Proceedings may be taken by the claimant in forma pauperis : (Be Money, 13 Beav. 109.). Every petition for dealing with money or securities in court, charge- able with duty payable to the revenue under the Acts relating to legacies or succession duty, or the dividends on such sfecurities, shall contain a statement whether such duty or any part thereof has or has not been paid : (Ch. P. A. O., 1874, r. 11.) The petition must set out the material statements only of the original affidavits : [Be Leoett, 6 De G. & Sm. 619 ; Be CuHois, 17 Jur. 852.) A petition by a person entitled to an aliquot share should ask that the other shares should be carried to the separate accounts of the other persons entitled^ to save service on future applications: {Be Hawhe, 18 Jur. 33.) Petitions .... and summonses .... [must] be entitled in the matter of the .... Act, and in the matter of the particular trust : (Ch. P. A. O., 1874, r. 10.) (2) Address for Service. N'o ipetition relating to such moneys or securities .... shall be set down to be heard, and no summons relating thereto shall be sealed until the petitioner or applicant has first named in his petition or summons a place where he may be served with any petition or summons, or notice of any proceeding or order relating to such money or securities or the dividends thereof : (Oh. P. A. O., 1874, r. 9.) (3) By whom Made. A petition [may] be presented .... by such party or parties as to the cotirt shall appear to be competent and necessarv in that behalf : (Tr B A . 1847,8.2.) The persons interested in or entitled to any [such] moneys or securities .... and named in the affidavit, or any of such persons, or the person so paying or transferring into or depositing in court, may apply Trustees. > 939 . , . . respecting the investment, payment out, or distribntion of the moneys or securities, or of the dividends or interest of such securities : (Ch. F. A. O., 1874, r. 6.) Trustees are not proper persons to petition, unless asked to do so by all the cestuis que trustent, and will generally only get respondents' costs if they do so : (Be Cazneaii, 2 K. & J. 249 ; Be Hutchinson, 1 Dr. & Sm. 27 ; Be Cooper, cited in Be Cazneau.) A petition may be presented by a person entitled to an aliquot sharfe without bringing the other parties interested before the court : {Be Befford, 21 L. T. Rep. O. S. 164.) Any person interested in or entitled to money paid into court under the Trustee Relief Act, whose name is omitted in the trustee's affidavit, should apply for payment out of court by petition and not institute an action : {Felling v. Goddard, L. Rep. 9 Ch. Div. 185 ; 38 L. T. Rep. N. S. 811 ; 47 L. J. 646, Ch. ; Be Puttrell, L. Rep. 7 Ch. Div. 647.) (4) Service and Notice. Service of such petition shall be made upon such person or persons as- the court shall see fit and direct : (Tr. R. A., 1847, s. 2.) A person who has paid or transferred money or securities into, or deposited securities in court .... [must] be served with notice of any application made to the court or judge in chambers, respecting such money or securities, or the dividends thereof, by any person interested therein or entitled thereto : (Ch. F. A. O., 1874, r. 7.) The persons interested in or entitled to such money or securities [must] be served with notice of any application made by the trustee to the court or judges respecting such moneys or securities, or the dividends thereof : (Ch. F. A. O., 1874, r. 8.) A trustee who has not concurred in the payment-in must be served : {Be Bryant, W. N. 1868, p. 123.) Where part of the money has by order been carried to the separate account of a cestui que trust, trustees need not be served on an applica- tion for payment-out to him : (Be Young, 5 W. R. 400.) \ The court, if satisfied that the trustees try to avoid service, will make the order without service : {Ex parte Baughan, 16 Jnr. 325.) On a petition for payment out of court of a fund to which numerous parties were entitled, most of whom were not before the court, a former order having been made directing class inquiries, and the chief clerk having' made his certificate, it was ordered that the petitioner be at liberty to serve a copy of the petition, the former order, and thp chief clerk's certificate, together with the present order, upon the several persons named in the certificate, and that the petition stand over till such persons had been served : {Be Battersby, L. Rep. 10 Ch. Div. 228.) Where money has been paid into court under the Act, and the court, in an action brought for the fund, has declared the rights of the persons interested; on an application made by the trustee and the person so interested, for payment-out, it is unnecessary to serve notice of the application on persons who, although stated in the trustee's affidavit as being interested in the fund, have been declared not to be so by the court : (.Be J-osfcitrj/, 39 L. T. Rep. N. S. 422.) , . , , - It is unnecessary to serve remaindermen with petitions tor payment ot income, unless it is asked that the costs shaU be thrown on the corpus : {Be Marner, L. Rep. 3 Eq. 432; Be Whitling, 9 W. R. 830; Hx parte Pear*, 17 L. J. 168, Ch.) Service on remaindermen was dispensed with, when they were very numerous, and the money was only carried over: {Be Hodges, 6 W. R. 487.) 940 Trustees. Where an infant ,is to be served, a guardian ad litem should be appointed : {Be Ward, 2 Giffi. 122.) Substituted service, and service out of the jurisdiction, may be ordered : (Be Bolton, W. N. 1869, p. 226 ; Be Bonelli'g Electric Telegraph, L. Rep. 18 Eq. 665 ; but see, as to service abroad. Be Hamey, L. Rep. 10 Oh. App. 275; Be Morant, W. N. 1879, p. 144.) (6) Order. The court has not only administered the part of the fund paid in, but the remainder of the fund : {Be Wright, 1 Sm. & G. App., v.) The court, if not satisfied as to the facts by affidavit or when asked, may order an inquiry : (Be Wood, iS Sim. 469 ; Be Trower, 1 L. T. Rep. N.S.54; o. xxxni.) In making the order, the court has a discretion : (Be Gamier, L. Rep. 13Bq. 532.) . The court may delay the validity or invalidity of a deed (Lewis v. milman, 3 H. of L. Cas. 607 ; Be Bird, L. Rep. 3 Oh. Div. 214) ; or make a declaration as to the rights of parties : (Be Walker, 16 Jur. 1154.) Where the petitioner turned out not to be entitled, the trustees desiring the opinion of the court, it declared the rights and gave all parties, their costs: (Be Woolard, 18 Jur. 1012.) The court has directed an issue to be tried : (Be Allen, Kay, App. li.) Where money in which a lunatic is interested has been paid into court, a judge of the High Court has jurisdiction under the Act to order repayment to the Poor Law Guardians of the expenses incurred by them for support of the lunatic, or in the case of a lunatic not so found by inquisition to order his maintenance : (Lewin, 854 ; and see Lfnatics.) ^ On the petition of a person entitled to an aliquot share, liberty may be rfven to other parties entitled to apply at chambers: (Winkworth v. Winkworth, 32 Beav. 233.) Where the persons claiming in opposition to the petitioner live abroad, time may be given to them to make out their case : (Be Hodson, 22 L. J. 1055, Oh.) Every order made upon any such petition [has] the same authority and effect, and [is] enforced and subject to ... . appeal, in the same manner ■ as if the same had been made in a suit regularly instituted in the court : (Tr. R. A., 1847, s. 2.)- An order for maintenance, out of the fund, of an infant entitled thereto, constitutes him a ward of court : (Be Hodge, 3 E. & J. 213.) If it shall appear that any such trust funds cannot be safely distributed without the institution of one or more suit or suits, the [judge] may direct any such suit or suits to be instituted : (Tr. R. A., 1847, s. 2.) A suit is directed for the court's own satisfaction only, not for th6 con- venience of the petitioner : (Be Harris, 18 Jur. 721.) See also Be Way's Settlement, 10 Jur. N. S. 1166 ; Be Foyard, 1 K. & J. 233 ; Be Puttrell, L. Rep. 7 Oh. Div. 647. 11. Costs. Even before the Judicature Acts, the costs were in the discretion of the court : (Boherts v. Ball, 24 L. J. 471, Oh.) The former rules as to costs may still be looked at as a guide : (Myers V. Bffries, L. Rep. 5 Ex. Div. 180 ; 42 L. T. Rep. N. S. 137 ; 49 L. J. 266, Ex. ; 28 W. R. 406.) A trustee commencing an action when he might have paid in under the Act, win only be allowed such costs as he would have got under the Act : (Wells V. Malbon, 31 Beav. 48 ; Ghinnell v. Whitear, L. Rep. 10 Ea. 664.) Trustees. 941, An objection that the moneys were liot properly paid in and that the trustee is therefore not entitled to his costs of payment-in and appearance^ cannot be taken on a petition for payment-out : (Be Haycoek, L. Rep. 1 Oh. Div. 611 ; Ee Sutton, L. Rep. 12 Oh. Div. 175.) The court has no jurisdiction as to the costs deducted by the paying-in trustee {Be Bloye, 1 Mac. & G. 504; Be Barber, 9 Jur. N. S. 1098); but where he is allowed the costs of the petition, his costs, including those deducted, will be taxed : (Be Sue, 27 Beav. 337.) An action may be brought for recovery of costs improperly deducted : (Beaty v. Cv/rson, L. Rep. 7 Eq. 194.) A trustee who objected to act with a proposed new trustee, and on his appoiutment paid the fund into court, was allowed his costs : (Be Williams, 6 W. R. 218.) A trustee holding money ia respect of which equity to a settlement is claimed, may pay it in : (Be Swan, 2 Hem. & M. 34 ; but see Be Boheris, W. N. 1869, p. 88.) Costs, charges, and expenses of trustees of properly paying in are, if not previously deducted, paid out of corpus : (Be Whitton, L. Rep. 8 Bq. 353.) A trustee guilty of gross misconduct in paying in may be made to pay the costs of the petition personally : (Be Woodburn, 1 De G. & J. ^33 ; Be Gates, 25 Beav. 361, 366 ; Be Elliott, L. Rep. 15 Bq. 194 ; Be RQsUns, L. Rep. 5 Ch. Div. 230 ; L. Rep. 6 Oh. Div. 281.) , Per Jessel, M.R. — When it is doubtful to whom a legacy is payable, the better course is not by payment in under the Act, but by an administra- tion summons, waiving accounts, simply to obtain the judge's decision, or, after taking out such summons, when both parties agree, by submitting a statement of facts in the nature of special cases for the judge's opinion. If the executor does pay the legacy in, he will be left to take his costs out of the residuary estate, and will not have them out of the legacy ■ (Be Birlcett, L. Rep. 9 Ch. Div. 576.) Trustees who are served are prima facie entitled to their costs as between solicitor and client : (Be Brshine, 1 K. & J. 302 ; Be Wylly, 28 Beav. 458 ; Be Wright, 3 K. & J. 419; Be Macleam, L. Rep. 19 Bq. 28^ ; Be Haycock, L. Rep. 1 Ch. Div. 611;) A trustee will not have his costs of appearance where he pays money in capriciously (Be Leake, 32 Beav. 135) ; for insufficient reason (Be Coving- ton, 1 Jur. N. S. 1157 ; Be Kerning, 3 K. & J. 40 ; Be Gull, L. Rep. 20 Eq. 561) ; to avoid an action : (Be Waring, 16 Jur. 652.) An executor must take his costs of paying in out of the estate of the testator, whose awkwardly framed will has created the doubt, the subse- quent costs coming out of the fund : (Be Cawthorne, 12 Beav. 56 ; Be Jones, 3 Drew. 679.) If the fund has been first severed, and then paid in by a trustee, all the costs come out of the severed fund : (Be Lorimer, 12 Beav. 521.) Costs cannot be directed to be paid out of another fund paid in to another account, though forming the testator's residuary estate: (Be Hodgson, 18 Jur. 786.) As to throwing costs on residue, though not paifl in, see Be Ham, 2 Sim. N. S. 106; Be Bartholomew, 13 Jur. 380; Be Sharpe, 15 Sim. 470 ; Be Trick, L. Rep. 5 Ch. App. 170. Trustees who are served are not allowed costs of taking copies of claimant's affidavits : (Be Lazarus, 3 K. & J. 555.) Where a life assurance company paid money into court, and appeared to raise a question on which they failed, they were allowed their costs of paying in, but refused their costs of appearance : (Be Bosier, W. N., 1877, p. 225.) «42- Trustees. The costs of a, petition by a tenant for life for payment of income, and of the trustees, and all other parties necessarily appearing on the petition, ■will come out of income : (Be Marner, L. Rep. 3 Eq. 258 ; Be Hvans, L. Rep. 7 Ch. App. 609.) But a tenant for life, who is about to petition for payment of income, should write to the trustee that the corpus is not intended to be affected. If the tenant for life's, title is clear, the trustee should not appear: {Be EvaHs, sup.) Parties served, who have no interest in the money ought not to appear : (Be Smith, 3 Jur. N. S. 659.) A remainderman served who appears merely to look after his own interests wiE not be allowed costs : (Be Thornton, 9 W. R. 475.) As to notice not to appear and tender of costs to persons served, see Add. R., Aug. 1876, Sp. All., r. 17, cited Costs. A person, who does not appear by the affidavit to havp any interest, is served, and disclaims at the bar, is not allowed costs : [Be Parry, 12 Jur. 615 J Be Smith, svp.) If a petitioner's incumbrancer will take all the fund, and he serves a sub- sequent incumbrancer with notice that his costs will be objected to, the latter will not be allowed costs of appearance : (Boberts v. Ball, 24 L. J. 471, Ch.) Costs of an unsuccessful claimant may be allowed : (Be Birch, 2 EI. & J. 369 ; BeDicTcson, 1 Sim. BT. S. 37.) A respondent, whose wrongful claim has caused the payment in, may, on his appearance and opposition, be ordered to pay the costs : (Be Armstan, 4 N. R. 450 ; 4 D. J. & Sm. 454.) V. OF CHARITIES. [See Charities.] VI. LEAYE TO SELL MINES OR LANDS SEPARATELY. [See Confirmation op Saxes.] VIL PURCHASE OP REVERSION OP ECCLESIASTICAL ESTATE. [See EccLBSiASTicAi Estates.] VIII. AS PARTIES. [See Pakties.] UNCLAIMED STOCK. [See National Debt Act.] UNSOUND MIND, PERSONS OP. ISee Lunatics, II. ; Parties ; Writ of Summons ; Appearance ; Judgment.] Vacations. 943 VACANT POSSESSION. [See Recovery oj' Land, III.] VACATIONS. I. PERIODS ASSIGNED FOR. The vacations to be observed in the several courts and offices of the Supreme Court shall be four in every year, viz., the Long Vacation, the Christmas Vacation, the Easter Vacation, and the Whitsun Vacation. The Long Vacation shall commence on the 10th Aug. and terminate on the 24th Oct. : (O. LXI., r. 2.) The Christmas Vaeatiom shall commence on the 24th Dec. and terminate on the 6th Jan. : [Id.) The Easter Vacation shall commence on Good Friday and terminate on Easter Tuesday : (Id.) The Whitsun Vacation shall commence on the Saturday before Whit- sunday and shall terminate on the Tuesday after Whitsunday : (Id.) The days of the commencement and termination of each .... vacation shall be included in such . . . vacation : (0. LXI., r. 3.) n. TRANSACTION" OF BUSINESS. Provision shall be made by Rules of Court for the hearing, in London or Middlesex, during vacation by judges of the High Court of Justice and the Court of Appeal respectively, of all such applications as may require to be immediately or promptly heard : (J. A., 1873, s. 28.) No rule as to applications to the Court of Appeal has been made. Two of the judges of the High Court shall be selected at the com- mencement of each Long Vacation for the hearing in London or Middlesex during vacation of all such applications as may require to be immediately or pronrotly heard. Such two judges shall act as vacation judges for one year from their appointment : (O. LXI., r. 5.) The vacation judges may sit either separately or together as a divisional court as occasion shall require, and may hear and dispose of all actions, matters, and other business to whichever division the same may be assigned : (O. LXI., r. 6.) .^y other judge of the High Court may sit in vacation for any vacation judge: (Id.) Every vacation judge shall have the same power and authority as here- tofore : (O. LVIlA., r. 3, Dec. 1876.) In the interval between the close of the sittings .... and the c6m- mencement of the [next] sittings, any judge of the court may sign and adopt any certificate made by the chief clerk of any other judge ; and decrees or orders made by any judge of the court may be prosecuted at the chambers of any other judge by his permission; and in case the prosecution thereof shall not be completed during such interval, the. prosecution may be" continued at the chambers of the same judge, if and 80 far as he shall think fit. In all cases in which any judge signs and adopts a certificate made in pursuance of a decree or order made by any other judge, it shall be expressed that he does so for such other judge ; and such certificate shall in all future proceedings be deemed to be signed and adopted by the judge for whom it is signed and adopted, save that no application to discharge or vary such certificate 944 Vacations — Vendor and ■Purchaser. shall be made to the judge for whom the same is signed and adopted, without the consent of the 3udge hy whom it has been signed and adopted ; and the judge by whom it has been signed and adopted shall have the same power to discharge or vary the certificate as he would hare had if it had been made in pursuance of a decree or order made by himself : (0. O. 35, r. 59.) The vacation judges of the High Court may dispose of all actions, matters, and other business of an urgent nature during any interval between the sittings of any division of the High Court to which such business may be assigned, although such interval may not be called or known as a vacation : (O. LXI., r. 7.) ' Jhis rule applies where a judge has, during the sittings, adjourned his court': (Wilson v. Watson, 38 L. T. Eep. BT. S. 380.) A chief clerk has no power in vacation to give special leave to serve notice of motion. Applications for such leave must be made to the vacation judge : {Conacher v. Conacher, 70 L. T. 186.) No order made by a' vacation judge shall be reversed or varied except by a Divisional Coiurt or the Court of Appeal, or a judge thereof, or the judge who made the order : (O. LXI., r. 6.) VENDITIONI EXPONAS. [See ExECTJTiojr, XV., (1).] VENDOR AND PURCHASER. I. ON SALES BY THE OOTJIIT. [See Peopbety, Till.] II. SPECIFIC PERFORMANCE OP CONTRACTS BETWEEN. [See Specimc Peepokmance.] III. SUMMARY PROCEDURE ON SALES. (1) JUEISDICTION. A vendor or purchaser of real or leasehold estate in England, or their ^representatives respectively, may at any time or times, and from time to time, apply in a summary way to a judge of the [Chancery Division] in England in chambers, in respect of Any requisitions or objections ; or Any claim for compensation ; or Any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract) : , (V. & P. Act, 1874, 37 & 38 Vict. c. 78, s. 9.) The judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid : (V. & P A 1874, s. 9.) The Act does not apply in the case of voluntary grants, but a nominal cohsideration is sufficient as a foundation for proceedings under it : (Seton, 1318, citing Be Marquis of Salisbury, 23 W. R. 824.) The following questions have been determined under the Act — Whether the purchaser's objections and requisitions have been suffi- ciently answered, and whether a good title has been shown in Vendm' and Purchaser. 945 accordance with the particulars and conditions of sale {Be Burroughes, Lynn, and Sexton, L. Rep. 5 Ch. Div. 601 ; Be Osborne to Bowlett, L. Rep. 13 Oh. Div. 774; 42 L. T. Rep. N. S. 650- 49 L. J. 310, Ch. ; 28 W. R. 366 ; Be ColeMan and Jarrom, L. Rep 4 Oh. Div. 165 ; Be Brown and Sibly, L. Rep. 3 Oh. Div. 156 ; Be Cooke's Contract, W. N. 1877, p. 5 ; Be Kearsley and Clayton's Com^rocf, L. Rep. 7 Oh. Div. 616) ; Whether a tmstee under a liquidation was ahle to convey (Be ; Waddell's Contract, L. Rep. 2 Oh. Div. 176) ; Question of construction (Be Coleman and Jarrom, L. Ren. 4 Oh Div. 166); , 1- V. As to copxpensation {Be Springall and Goldsach, W. N. 1876, p. 225: W. ]Sr. 1876,p.44); 'i- ' Whether the legal estate passed under a will, part of the title (Be Packman and Moss, L. Rep. 1 Oh. Div. 214) ; Whether a power has ^een properly exercised {Be Frith and Osborne, L. Rep. 3 Oh. Div. 618) ; or is exercisahle {Be Cooke's Contract, W. N. 1877, p. 5) ; Whether the survivor of two liquidators could affix the company's seal to an assignment {Be Metropolitan Bank and Jones, L. Rep. 2 Oh. Div. 366) ; Whether succession duty is payahle {Be Cooper and Allen's Contract - L. Rep. 4 Oh. Div. 802); Whether a post-nuptial settlement was void as against the vendor {Be Foster and Lister, L. Rep. 6 Oh. Div. 87) ; Whether an appointment of trustees was good {Be Cvnmingham and Bradley's Contract, W. N. 1877, p. 268) ; Whether an estate in fee simple passed hy the words of a will {Be White and Hindle's Contract, W. IST. 1877, p. 260) ; Whether a surety had heen discharged by the operation of an Act of Parliament {Finch v. Jukes, W. N . 1877, p. 211) ; Whether the vendor was bound to answer completely the requisition as to incumbrances {Be Ford and Hill, L. Rep. 10 Oh. Div. 366). 2. Application. The application is by summons : (see sup. 1, and Ohambees, XIU., 4.) The summons is entitled in the matter of the agreement, and in the matter of the Act. The title should shortly state the date of the agree- ment, the parties to it, and the particulars of the property comprised in it: (Seton, 1318.) Where the court decides a question of whether duty is payable the Crown will not be bound unless represented on the summons : {Be Cooper and Allen's Contract, L. Rep. 4 Oh. Div. 802, 827.) The summons may be adjourned into court : {Be Brown and Sibley, L. Rep. 3 Ch. Div. 166 ; Be Cooper and Allen's Contract, L. Rep. 4 Ch. Div. 802.) 3. Evidence. The Court of Appeal has intimated an opinion that the summary juris- diction was not intended to apply to a case where there were disputed facts, but was only meant to afford a ready means of settling short points of law or construction : (Be Popple and Barratt, 25 W. R. 248.) In a subsequent case, Jessel, M.R. refused to admit affidavits and cross-examinations on the ground that evidence by affidavit upon requisi- tions as to title ought not be given unless required by the judge : but on appeal' it was held that the evidence ought to have been acumitted, for p p p \ 946 Vendor and Pwrehaser. that, on a smnmons under the Act, the parties are in the same position as ~ they would have been under a reference as to title in a suit for specific penonuance : {Be Burroughes, Lynn, cmd Sexton, L. Bep. 6 Oh. Div. 601.) Where a witness refused to make an affidavit, the court, on an ex parte application, directed that his evidence should be taken before an examiner : {Be Springhall and Goldsaek, W. N. 1875, p. 225.) 4. Apfeai.. An order under the Act must be appealed from within twenty-one days : {Be Blyth and Young, L. Kep. 13 Oh. Div. 416 ; 41 L. T. Bep. N. S. 746; 28W. E. 266.) _' 5. Costs. The costs are in the discretion of the court : (see g^(p., 1.) The summons may be dismissed with costs : {Be Packma/a, L. Bep. 1 Ch. Div. 214.) A purchaser who has raised an objection, which he has failed to sustain on a vendor's summons, may be ordered to pay the costs of the summons : {Be Waddell's Contract, L. Bep. 2 Ch. Div. 172, 176; Be Coolers Contract, W. N. 1877, p. 5.) Where a purchaser failed on an objection as to incumbrances, each party had to pay his own costs of a vendor's summons : {Fmch v. Jukes, W. N. 1877, p. 211.) Per Jessel, M.B., the general rule is that a purchaser must pay the costs if he fails on a vendor's summons caused by an objection to the title : {Be Osborne to Bowlett, swp.) . But the Master of the BoUs made no order as to costs where the former decisions on the question were conflicting : {Id.) Where a purchaser makes an improper requisition, his summons should be dismissed with costs : (Per James, L.J. Be Ford and Hill, L. Bep. 10 Ch. Div. 365, 371.) Where the court decided in favour of the propriety of a purchaser's requisition, the vendor was ordered to pay the costs of the purchaser's summons : (Hall, Y.C. in Be Ford and Hill, swp.) Quaere, whether, on reversing the order of the court below, the Court of Appeal wiU give the appeUant costs below : (see Be Ford and Hill, swp.) VENUE. [See Tkial, VIH.] VERDICT. [See Tbial, XI. ; New Triai..] VESTING ORDER. [See Tbttstees, IV.] Windmg-wp. 947 WANT OF PROSECUTION. I See Dismissing Action ; Judgment, II., 2 (a) (c) and 4 ; DiSCOVEKT ; CoSTS, I., 1 (flf).] WARD. [See Infants, II.] WINDING-UP. I. BEGISTEEED COMPANIES AND ASSOCIATIONS UNDER THE COMPANIES ACT, 1862. 1. By the Coubt. (a) Under what CiecwmstaTuxs. (b) Who may Petition. (1) Shareholders' Petition. (2) Creditors' Petition. (3) Seouiity for Costs. (c) The Petition. (1) Title. (2) Service. (3) Verification. (4) Advertisement. (5) Furnishing Copies. (6) Amendment. (7) Transfer. (8) Priority. (9) Costs. (d) Kea/rmg. (e) WindAng-up Order. (1) In Case of Two or More Companies. (2) On Several Petitions. (3) Appointment of Liquidator {nee post (I) (3)]. (4) Copy for Eegistrar. (5) Advertisement and Service. (6) Efeect. (i.) Dispositions of Property, (ii.) Actions, (iii.) Process. (/) Staying and Trantferrimg Wmdrng-up and Other Proceedmgs. (1) Power to Stay Winding-up Proceedings. (2) Power to TrajiBfer Winding-up Proceedings to Bankruptcy Court. (3) Power to Refer Winding-up Proceedings to County Court. (4) Transfer from one County Court to another. (5) Staying and Transferring Actions, &o. (i.) Before Winding-up Order, (ii.) After Winding-up Order. (g) Carrying into Qhambere. (h) Siirnvmom to Proceed, (i) Directions on Retwm of Swrvmons. (fc) Adjourmnent. {[) Liqvidators. p p p 2 948 W:f,'ii(Mng-up. (1) Power to Appoint. (2) FroTiBional Liquidatox. (i.) Appointmest of. (ii.) Application for. (iii.) Powers, (ir.) Bnles Applicable. (3) Official liquidator. (i.) Person Appointed, (ii.) When Appointed, (iii.) How Appointed, (iv.) Seonrity. Power to Order. How Given. Time. Certificate of Chief Clerk. Fresh Secnrity. (t.) Advertisement of Appointment, (vi.) Description, (vii.) Duties. (viii.) Representative Character, (ix.) Powers. Without Court's Sanction. With Court's Sanction. General Scheme of Liquidation. Compromise of Claims, &c. Sanction of Judge : As to Bills and Notes. As to Compromising Clcmns. As to Other Proceedings. (x.) Application of Moneys and Securities in Hands of Official Liquidator. Payment into Bank. Neglect to Pay. Account. Investment of Moneys. Dividends Thereon. Depositing Securities. Delivery out of Securities, (xi.) AccoTmts. Eeeping. (xii.) Solicitor. (xiii.) Cpsts. (xiv.) Remuneration. (xv.) Bemoval. (xvi.) Custody of Property where no Liquidator Appointed, (m) CredMors, (1) Claims. (i.) Directions as to Bringing in. (ii.) What Claims Admissible, (iii.) Application of Assets in Parent, (iv.) Sales of Property. (2) Advertisement for Creditors. (3) Attendance of Creditors. (4) List of Debts. (5) Allowance of Debts. (6) Proof of Debts. (i.) Date of Valuation, (ii.) Interest. Winding-up. 94:9 (iii.) Costs of Proof. (7) Chief Clerk's Certificate upon Adjudication, (m) Contnbutories. (1) Breparatiou and Verification of List. (2) Varying List. (3) Appointment for Jadge to Settle List. (4) Notice of Appointment. (5) Settlement by Judge ; Rectification of Begister. (i.) Laches on Part of Contributory, (ii.) Costs when Liability is Disputed. (6) Chief Clerk's Certifioate of Settlement. (7) Delivery of Property by Contributory. (8) Payment of Debts by Contributory. (9) Calls. (i.) Power to Make, (ii.) Application for. (iii.) Notice of. (iv.) Adjournment of Proceedings, (v.) Payment. (ti.) Payment into Bank. Notice. Affidavit of Liquidator. Account of Liquidator to be Credited, (vii.) Default by Kepresentative Contributory. (10) Order Conclusive Evidence. (11) Bights of Contributories to be Adjusted. (12) Costs. (13) Absconding Contributory. (14) Powers of Court Cumulative, (o) Qeneral Practice in Chambers. (1) General Practice to Apply. (2) Judge at Chambers. (3) Power of Judge. (4) Register and FUe of Proceedings. (5) Parties Entitled to Attend. (6) Representative Parties. (7) Name, &o., of Parties to be Registered. (?) (1) Affidavits. (i.) Piling, (fi.) Title, (iii.) May be Sworn Abroad. (2) Evidence of Books. (3) Inspection of Books. (4) Admission of Documents. (5) Special Commissioners for Receiving Evidence. (6) Examination of Persons in Scotland: (g) Svm/monaes, Notices, Sfc. (1) Title. (2) How Served. (3) Service not to be Invalidated, (r) Orders. (») Ad/aerlAsemenis. (t) Fees. (1) Solicitor's. (2) How Collected. (3) Taxation of Costs. (u) Dissolution. (1) Order for. 950 Winding-wp. (2) Minnte. (3) Disposal of Books, &o. (c) Termma1Aval. (■i) Oonlrihatones. (1) Calla. (2) Order Conclnsive Evidence [see swp. 1 (w) (10)]. (3) Costs [see sup. 1 (n) (12)]. (4) Absconding Contributory [see «u/p. 1 (m) (13)]. (5) Powers of Court Cumulative [see sttp. 1 («) (14)]. (fe) General Practice in, Chambers [see swp. 1 (o)]. (I) ^OTdewce [see sup. 1 (p)]. (•m) Svmmonses, Notices, ^c. [see sup. 1 (g)]. (m) Orders [see sitp. 1 (r)]. (o) ^dijertisements [see sup. 1 (s)]. Op) Fees [see sup. 1 (i)]. (g) Dissolution [see sup. 1 (tt)]. (r) *i/orceme»it of Orders [see sup. 1 (ui)]. (s) .^jppeaZs. (1) Prom Winding-up Order [see Appeais.] (2) Prom Orders during Winding-up [see si*p. 1 (as)]. (t) Incidental Powers [see sup. 1 (i/)]. II. UNEEGISTEEED COMPANIES (Bt thb Coxtet). 1. What Compaotes. 2. UnDEB what CrECUMSTANCES. 3. Effect of Winding-up Okdbb. 4. Peopektt to Vest in Official Liqttidatobs. 5. Application of Peovibions Eelating to the Winding-up of Eegistebed Companies. m. LIFE ASSURANCE COMPANIES (Special Peovibions). 1. Beoistbation. 2. How Wound-up. (a) Under what drcm/nstamces. (1) Insolvency. (2) Other Circumstances, (t) CalUng Up of Capital. (c) Who may Petition. Id) The Petition. (e) Hearing. (1) Security for Costs. (2) PrimA facie Case. (/) Reduction of Contracts in lAeu of Windmg-up. • (jr) Liquidator. (h) Valuation of Policies and Armmties. (i) SuhsidAavy Convpamy. 952 Winding-up. (l).May be Wound-up in conjunction with Principal Company, (2) Wlio may Petition. (3) Commencement of Winding-up. (4) Liquidator. (5) Begardto Circumstances. (6) Consideration, in Ordering Winding-up, when not included in Original Winding-up. (7) When being Wound-np by Different Branches of Court. (8) May be Wound-up together or in Separate Groups. rV. EAIIiWAT COMPANIES. I. REGISTERED COMPANIES AiTD ASSOCIATIONS UNDER THE COMPANIES ACT, 1862. 1. By the Cotjbt. (a) Under what Circwmstances. (1) Whenever the company has passed a special resolution requiring the company to be wound-up by the court : (0. A., 1862, s. 79 (1).) (2) "Wienever the company does not commence its business within a year from its incorporation, or suspends its business for the space of a whole year : (C. A., 1862, s. 79 (2).) The jurisdiction to wind up a company which does not commence its business , within a year from its incorporation is discretionary, and an order maybe refused if the deky is satisfactorily accounted for : (Buckley, 3rd edit. 169.) Delay arising from a wish to wait for a time when business can be carried to more profitably is not suiBBcient: {Me Middlesborough Com/pomg, L. Rep. 14 Ch. Div. 104; 42 L. T. Rep. N. S. 609.) (3) Whenever the members are reduced in number to less than seven : (C. A., 1862, s. 79 (3).) (4) Whenever the company is unable to pay its debts : (C. A., 1862, s. 79 (4).) A company .... shall be deemed to be unable to pay its debts, , (i.) Whenever a creditor, by assignment or otherwise, to whom the company is indebted, at law or in equity, in a sum exceeding fifty pounds then due, has served on the company, by leaving the same at their registered office, a demand under his hand requiring the company to pay the sum so due, and the company has for the space of three weeks succeeding the service of such demand neglected to pay such sum, or to secure or compound for the same to the reasonable satisfaction of the creditor : (C. A., 1862, s._80 (1).) A petitioner, who relies upon statutory demand and non-payment for twenty-one days, must allow the period to expire before presenting his petition, otherwise he has no ground for his petition. Neglect of a statutory notice must be proved, and that it took place before petition presented : (Buck. 174.) _ n the petitioning creditor's debt be less than 50J., he must show his right to a winding-up order otherwise than by non-payment of his debt three weeks after demand • (Buck. 177.) (ii.) Whenever, in England and Ireland, execution or other process issued on a judgment, decree, or order obtained in any court in favour of any creditor, at law or in equity, in any proceeding instituted by such creditor against the company, is returned unsatisfied in whole or in part ; Winding-up. 953 (iii.) Whenever, in Scotland, the indudw of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest have expired without payment being made ; (iv.) Whenever it is proved to the satisfaction of the court that the company is unable to pay its debts : (C. A., 1862, s. 80.) (5) Whenever the court is of opinion that it is just and equitable that the company should be wound-up : (C. A., 1862, s. 79 (5).) This clause is interpreted only in reference to matters ejusdem generis as those in the preceiUng clauses. If the company were plainly and commercially — ^though not in a technical sense — insolvent, the court would probably consider it "just and equitable " to wind-up the company. Thus, if the company is unable to meet its current demands, If the company never had a proper foundation, and was a mere " bubble company," the court considers it comes within this clause. It is no bar to the jurisdiction of the court to wind-up a company that all the operations of the company are in a foreign country, if the ~ management be in this country, and the business be substantially transacted here : (Buck. 170-2.) (6) Who may Petition. [A petition] may be presented by the company, or by any one or more creditor or creditors, contributory or contributories of the company, or by all or any of the above parties, together or separately : (0. A. 1862, s. 82.) If the petitioner, dies before the hearing of the petition, his legal personal representative may obtain an order to carry it on : (Buck. 471.) (1) Shareholders' Petition. No contributory .... shall be capable of presenting a petition .... unless the members of the company are reduced in number to less than seven, or unless the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him and registered in his name for a period of at least six months during the eighteen months previously to the commencement of the winding-up, or have devolved upon biTn through the death of a former holder. Provided that where a share has, during the whole or any part of the six months, been held by or registered in the name of the wife of a contributory, either before or after her marriage, or by or in the name of any trustee or trustees for such wife or for the contributory, such share shall, for the purposes of [the] section, be deemed to have been held by and registered in the name of the contributory : (0. A., 1867, s. 40.) A shareholder de jwe, who by the company's default is not registered as a shareholder de facto, may petition. The petition of a shareholder, who is in arrear in the payment of calls, due from him to the company, may, on that account, be dismissed. A holder of fully paid-up shares may present a petition : (Buck. 177-8.) A petition to wind-up a company, presented by a shareholder who has not paid his calls, wiU be heard if he undertakes to pay before the order is made. A petition by a fully paid-up shareholder to wind-up a company which it alleges to be insolvent is demurrable. Beous, if it alleges that the insolvency is caused by the fraud of the directors, and that enough can be recovered from them under sect. 165 of the Companies Act, 1862, to make the company solvent : (Be Biamond Fuel Gom/pamj, L. Rep. 13 Ch. Div. 400 ; 41 L. T. Rep. N. S. 572 ; 49 L. J. 301, Ch. ; 28 W. R. 309.) It is not imperative on the court to issue a winding-up order, and it wiU exercise its judicial discretion if the application be made by a shareholder. 954 Winding-up. It the court is satisfied that the petition is presented in bad faith it vrill dismiss the petition. Where the number of shareholders is very small, and there are no difficulties in the way of a voluntary winding-up, the court wiU, in its discretion, refuse to make an order on a shareholder's petition : (Buck. 165.) Where, on a winding-up petition, fraud is alleged, the facts constituting the fraud m,nst be stated, although it is not necessary to state the eTidence- of the facts alleged. Where there is only a vague allegation of fraud, evidence of the act of fraud is not admissible. Qiicere, whether a winding-up petition can be maintained, where the petitioner, a fuUy paid- up shareholder, alleges there are no available assets except those to be -obtained by the successful prosecution of proceedings against directors and others to get back money they were liable to pay by reason of fraud : (-Be l^ca Gold Washing Company, L. Rep. 11 Oh. Div. 36; 40 L. T. Rep. N. S. 531.) (2) Creditors' Petition. Where a creditor, who cannot obtain payment of his debt, comes for a winding-up order, the court must, ex debito justitice, make it, if he brings. Ms case within the Act. But the court may order the petition to stand over to give the company an opportunity of arranging for payment of its- debts, when there is reasonable hope of such an arrangement being made. If also the company has no assets that a winding-up order can reach, and other creditors oppose, the court may refuse an immediate order. For the court has, in all cases of winding-up, complete discretion, and may con- sider what is most for the interest of all parties. A winding-up petition is not a legitimate method for a creditor to adopt in order to obtain payment of a debt which is bond fide disputed by the company, and any attempts so to enforce payment will be discouraged by the court (Buck. 166-8) ; and an injunction will be granted to restrain the presentation of the petition : (John Brown and Co. v. Keehle, W. N., 1879, p. 173.) In a proper case, however, the dispute will be decided by the court at the hearing of the petition, and it wiU make a winding-up order without waiting until the debt has been established at law. But if the court sees that the debt is disputed on some ground which is not reasonable and substantial, it will itself decide on the question of fact, and will make a winding-up order, with a direction that it be not drawn up for some short time, in order to give the company the opportunity to meet the demand. If the creditor have, by reason of the constitution of the company, a special remedy by the appointment of a receiver, he cannot claim an order- ex debito justiticB until the special remedy has been tried and has failed : (Buck. 166-168.) A creditor who has presented and advertised a petition is not bound to- bring the petition to a hearing, but he is entitled to dismiss it, or to agree with the company to its withdrawal upon terms : (Buck. 179.) Where bonds with coupons attached were issued by a Umited company, each bondholder being entitled to a " bonus share " under a trust deed by which the company bound itself to pay to the trustees interest on the bond, and an annual sum as sinking fund to provide for the repayment of the bonds, each bond containing a covenant by the company with the trustees to pay the bearer thereof 1001., and to pay interest to the holder of the coupon, it was held (1), that a bondholder was not entitled to a winding-up order in respect of unpaid interest, on the ground that, as he had no right of action except through the trustees, he was not a creditor of the company either in respect of the bond as to principal, or of the Winding-up. 955 coupon as to interest ; and (2) that even if he were a creditor, inasmuch as a large majority of the bondholders opposed the petition, and he would be in no better a pdsition by obtaining his order, the court had a discretion under sect. 91 of the Act of 1862 [see post, y (1)], which in this case was properly exercised by a refusal of the wiuding-up order : [Re Uruguay, &e.. Railway Company, 41 L. T. Rep. N. S. 267 ; L. Rep. 11 Oh. Dir. 372.) (3) Security for Costs. A petitioner residing out of the jurisdiction (including Scotland) must gve security for costs, and the amount under the old practice was 1001. Under the new practice the amount is discretignary, but special reason ought to be shown if more thsai 1001. is asked for : (Buck. 178.) (c) The Petition. Any application to the court for the winding-up of a company .... shaE be by petition : (d, A., 1862, s. 82.) A winding-up .... by the court shall be deemed to commence at the time of the presentation of the petition .... : (0. A., 1862, s. 84.) Where the order is made upon more than one petition, the order, and therefore the commencement of the winding-up, dates from the earliest : (Buck. 183.) (1) Title. Every petition for the winding-up of any company by the court, or subject to the supervision of the court j shall be intituled in the matter of " The Companies Acts, 1862 and 1867," and of the company to which such petition shall relate, describing the company by its most usual style or firm: (G. 0. 1868, r. 1.) (2) Service. Every .... petition shall, unless presented by the company, be served at the registered office, if any, of the company, and if no registered office, then at the principal or last known principal place of business of the company, if any such can be found, upon any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by being left at such registered office or principal place of business, or by being served on such member or members of the company as the court may direct : (G. O., 1862, r. 3.) ^ Where service cannot be effected according to the rule, on account of there being no office, &c., the court will direct the manner of service: (Buck. 473.) Where a company was in voluntary liquidation and its registered office was unoccupied, and there was no one on the premises upon whom service of a petition for a compulsory winding-up could be effected, service of the petition upon the liquidator in the voluntary winding-up was held sufficient : (Be Stewart and Bra., W. N., 1880, p. 15.) A petition for winding-up a company had not been served at the registered office of the company, but service had been accepted by a soBcitor on its behalf, and he had been instructed to take proceedings with reference to it at a meeting attended by all the directors. Held that, as the solicitor had been duly authorised to act for the company, his acceptance of service rendered it unnecessary to serve the petition at the registered office. Rule 3, G. O., 1862 (see sup.), which provides for service of a petition at the registered office of the company, is not imperative, but is merely directory : [JRe Begent United Service Stores Assooiation, L. Rep. 8 Ch. Div. 75, 616; 38 L. T. Rep. N. S. 84, 130, 493 ; 47 L. J. 677, Ch.) 956 Winding-up. (3) Verification. Every petition for the winding-np of any company by the conrt, or subject to the supervision of the court, shau be verified by an affidavit referring thereto .... made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by the company, by some director, secretary, or other principal officer thereof ; and sworn after and filed within four days after the petition is presented, and such affidavit shall be sufficient prvmd facie evidence of the statements in the petition : (G. O., 1862, r. 4.) For the form see G. O., 1862, sch. 3, form No. ,2. The time for filing the affidavit may, in a proper case, be enlarged. In the case of a corporation, other than a • liquidating company being a petitioner, an order must be obtained allowing the affidavit to be made by some officer of the petitioning company, otherwise the affidavit will be insufficient : (Buck. 474-6.) Where one company presents a petition to wind-up another company, it seems unnecessary that leave should be obtained for the affidavit to be made by the manager in support of the petition, but on application being made leave was granted : {Re Cakemore Causeway, &e., Gom/pa/ny, W. N., 1880, p. 15.) (4) Advertisement. Every .... petition shall be advertised seven clear da.y8 before the learing, as follows : (i.) In the case of a company whose registered office, or if there shall be no such office, then whose principal, or last known principal place of business is or was situate within ten miles from Lincoln's Inn Hall, once in the London Gazette, and once at least in two London daily morning newspapers, (ii.) In the case of any other company, once in the hondon Gazette, and once at least in two local newspapers circulating in the district where such registered office, or principal or last known place of business, as the case may be, of such company is or was situate. The' advertisement shall state the day on which the petition was pre- / sented, and the name and address of the petitioner, and of his solicitor and London agent (if any) : (G. O., 1862, r. 2.) . The , seven days may be counted in the vacation. Advertisement on a Friday for hearing on the following Friday is not sufficient ; but the court may, under special circumstances, waive the irregularity. It does not invalidate the petition that the sidvertisements have a,ppeared on the morning of the day on which the petition is presented, and have thus actually preceded by a few hours the presentation of the petition. An error in the name of the company in the advertisement renders the advertisement absolutely void. The advertisement of the petition is notice to all the world of its presentation, that is, if the parties have had. such reasonable time as that knowledge of the advertisement may be imputed to them ; and is notice to parties interested, if not properly represented, to appear: (Buck. 470-1.) (5) Furnishing Copies. ' Every contributory or creditor of the company shall be entitled to be famished, by the solicitor to the petitioner, with a copy of the petition, within twenty-four hours after requiring the same, on paying at the rate Winding-up. 957 of fourpence per folio of seventy-two words for such copy : (G. O., 1862, r. 5.) (6) Amendmeut. The petition may by leave be amended at the hearing : (Buck. 195.) If petitioner has petitioned in a wrong character, the petition may be amended, and an order made upon it : (Buck. l80.) (7) Transfer. Where several petitions are presented in different branches of the court, they are transferred to that branch of the court where the first petition was presented : (Buck. 180.) (8) Priority. Where two or more petitions are presented, they will take priority according to their dates of advertisement, not according to their dates of presentation : (Buck. 182.) (9) Costs. The order usually made as to costs gives them to the petitioner if the petition succeeds, and to the company if it fails, and further gives oile set of costs to the contributories, and one to the creditors who support the winning side. If the petition succeeds, these costs are given out of the company's estate ; if it fails, they are given against the petitioner. There is no exception to deprive of their costs creditors appearing on a shareholders' petition which fails. They are invited by the petitioner to appear by the advertisement of the petition, and if he fails he must pay their costs : (Buck. 197.) A creditor who appears upon an abandoned petition for winding-up a company is entitled to his costs of appearance where the circumstances- indicate an invitation to appear: (Be Anglo-Virginian Freehold Land Company, W. N., 1880, p. 154.) Costs were given to a creditor who opposed a petition by a paid-up shareholder to wind-up an insolvent company : [Be Garnctrvonshire Slate Company, 40 L. T. Rep. BT. S. 35.) Wliere on a creditor's winding-up petition the company consented to an order, the court declined to give costs to creditors and contributories who supported the petition, it appearing that all the counsel, including counsel f (vr the company, had been instructed by the same solicitor : {Be Military and General Tailoring Company, 47 L. J. 141, Ch.) Where successive petitions are presented in ignorance of prior petitions, the court in making the order allows one set of costs on all the petitions. Where, at desire, a shareholder's petition is dismissed, the dismissal, if at the time of the presentation of the petition there was a bond fide case for petitioning, may be without costs : (Buck. 197.) The court may direct the petition to be filed in order to enable the costs of a person who has appeared thereon to be paid : (Be Northfleet Brick Company, W. N., 1880, p. 83.) (d) Hea/ring. ' Upon hearing the petition the court may dismiss the same with or without 'costs, may adjourn the hearing conditionally or unconditionally, and may make an interim order, or any other order that it deems just : (C. A., 1862, s. 86.) The only persons entitled to be heard upon the petition are the company, its creditors and contributories, and although the court may, in its discretion, hear other persons who have an interest in the matter, yet such persons can be heard only as amid curiae, and have no locus standi^ to appeal against the decision. At the hearing of the petition any creditol- 958 W'vnclmg-up. or shareholder will be heard to support or oppose ; but this does not apply- to applications made in the winding-up : (Buet. 195.) (e) WmdMfig-v/p Order. (1) In Oasp of Two or More Companies. Two companies cannot be included in one winding-up order : (Buck. 199.) (2) On SeTeral Petitions. Where several petitions are presented under justifiable circumstances, an order is made on all the petitions : (Buck. 200.) When a winding-up order is made upon two petitions, the advertise- ments of which appear in the same number of the London, Gazette, the petitioner whose petition has been first presented is entitled to the carriage of the order : (Be Storforth Lane Colliery Gom/pamm, L. Kep. 10 Ch. Div. 487.) (3) Appointment of Liquidator [see post (2) (3)]. (4) Copy for Registrar. When an order has been made for winding-up .... a copy of such order shall forthwith be forwarded by the company to the Biegistrar of Joint Stock Companies, who shall maike a minute thereof in his books relating to the company : (C. A., 1862, s. 88.) (5) Advertisement and Service. Every order for ... . winding-up of a company by the court or eabjeet to its supervision^ shall, within twelve days after the date thereof, be advertised by the petitioner once in the London Gazette, and shall be served upon such persons (if any) and in such manner as the court may direct: (G. O., 1862, r. 6.) Where from delay in obtaining the order the time has expired, leave may be given to post-date the order ; but leave will not be given except in • the presence of all parties : (Buck. 195.) (6) EfPect. (i.) Dispositions of Property. Where any company is being wound-up by the court or subject to the supervision of- the court, all dispositions of the property, efEects, and things in action of the company, and every transfer of shares, or altera- tion in the status of the members of the company- made between the commencement of the winding-up and the order for -winding-np, shall, unless the court othei-wise orders, be void : (C. A., 1862, s. 153.) (ii.) Actions. When an order has been made for winding-up .... no suit, action, or other proceeding shall be proceeded with or commenced against the company except with the leave of the court, and subject to snch terms as the court may impose : (C. A., 1862, s. 87.) No suit, action, or other legal proceeding shall be'' commenced or pro- ceeded with against any contributory of the company in respect of any debt of the company, except -with the leave of the court, and subject to such terms as the court may impose : (C. A., 1862, s. 198.) (iii.) Process. Where any company is being wound-up by the court or subject to the supervision of the court, any attachment, sequestration, distress, or execu.; tion put in force against the estate or effects of the company after the commencement of the winding-up shall be void to all intents ■ fO A 1862, s. 163.) ■ *■ ' ■up. 959 (/) Staying and Transferring Winding-up and other Proceedings. (1) Power to Stay Winding-up Proceedings. The court may at anytime after an order has been made for winding-up .... upon the application by motion of any creditor or contributory of the company, and upon proof to the satisfaction of the court that all pro- ceedings in relation to such winding-up ought to be stayed, make an order staying the same, either altogether or for a limited time, on such terms and subject to such conditions as it deems fit : (C. A., 1862, s. 89.) (2) Power to Transfer Winding-up Proceedings to Bankruptcy Court. • ■ ■ -^ Where the court .... makes an order for winding-up .... it may, if it thinks fit, direct all subsequent proceedings .... to be had in the Court of Bankruptcy : (0. A., 1862, s. 81.) (3) Power to refer Winding-up Proceedings to County Court. Where the [Chancery Division] makes a [winding-up order], it may, if it thinks fit, , direct all subsequent procee£ngs to be had in a County Court .... and thereupon such County Court shall .... be deemed to be " the court " . . . . and shall have .... all the juris- diction and powers of the [Chancery Division] : (0. A., 1867, s. 41.) (4) Transfer from one County Court to another. If during the progress of a winding-up it is made to appear to the [Chancery Division] that the same could be more conveniently prosecuted in any other County Court, it shall be competent for the [Chancery Division] to transfer the same to such other County Court, and thereupon the winding-up shall proceed in such other County Court : (C. A., 1867, 8. 42.) (5) Staying and Transferring Actions, &c. (i.) Before Winding-up Order. As formerly the Court of Chancery might upon the application of the company or any creditor or contributory, restrain actions, &c., against the company, so the court in which such actions are pending may, upon the application of the company, &c., stay the actions, &c. ; (J. A., 1873, s. 24 (5).) See JBe Artistic Colour Compamy, L. Kep. 14 Ch. Div. 502 ; 42 L. T. Rep. N. S. 802. See also Stating Peoceedings. (ii.) After Winding-up Order. When [a winding-up] order has been made .... the judge in whose court such winding-up .... shall be pending shall have power without any further consent to order the transfer to such judge of any action pending in any other division brought or continued by or against [the] company : (J. A., 1873, O. LI., r. 2a. ; see Buck. 201.) See Teansfbk II., 2 (6) (4). IJnless the application is made soon after the winding-up to stay an action in which execution has been issued, the order will only be made on condition of the company paying the amount of the execution into court : (Everingham v. Co-operative Beer Company, W. N., 1880, p. 99.) Except under special circumstances, a mortgagee will have leave, as a matter of course, to continue a foreclosure action, unless the company flfPer to give him at once a foreclosure or sale, as the case may be : (Buck. 202.) An order in a winding-up, directing inquiries to ascertain the priorities of the incumbrancers of the company's property, raises no equity to pre- vent an action for foreclosure being brought by persons claiming to be first mortgagees, in whose presence tne order had been made, and who had 960 Wintcy, judge of a County Court, commissioner of bank- rupt, assistant barrister, or recorder, or as a sheriff of a county, have in the matter so referred to him all the powers of summoning and examining witnesses, and requiring the production or deKvery of docu- ments, and punishing defaults by witnesses, and allowing costs and charges and expenses to witnesses, as the court which made the order for winding-up the company has ; and the examination so taken shall be returned or reported to such last-mentioned court in such manner as it directs : (0. A., 1862, s. 126.) (6) Examination of Persons in Scotland. The court may direct the examination in Scotland of any person for the time being in Scotland, whether a contributory of the company or not, in regard to the estate, dealings, or affairs, of any company in the course of being wound up, or in regard to the estate, dealings, or affairs of any person being a contributory of the company, so far as the company may be interested therein by reason of his being such contributory, and the order or commission to take such examinaraon shall be directed to the sheriff of the county in which the person to be examined is residing or happens to be for the time, and the sheriff shall summon such person to appear before him at the time and place to be specified in the summons for examination upon oath as a witness or as a haver, and to produce any books, papers, deeds, or documents, called for which may be in his possession or power, and the sheriff may take such examination either praUy or upon written interrogatories, and shall report the same in writing in the usual form to the court ; and shall transmit with such report the books, papers, deeds, or documents produced, if the originals thereof are required and specified by the order, or otherwise such copies thereof, or extracts therefiom, authenticated by the sheriff, as may be necessary; and, in case any person so summoned fails to appear at the time and place specified, or, appearing, refuses to be examined or to make the prpduction required, the sheriff shall proceed against such person as a witness or haver duly cited, and failing to appear, or refusing to give' evidence or make production, may be proceeded against by the law of Scotland; and the sheriff shall be entitled to such and the like fees, and the witness shall be entitled to such and the like allowances, as sheriffs when acting as commissioners under appointment from the Court of Session, and as witnesses and havers are entitled to in the like cases according to the law and practice of Scotland : If any objection is stated to the sheriff by the witness, either on the ground of his incom- petency as a witness, or as to the production required to be made, or on Winding-up. 979 any other ground whatever, the sheriff may, if he thinks fit, report such objection to the court, and suspend the examination of such witness tmiH such objection has been disposed of by the court : (0. A., 1862, s. 127.) (g) Simvmonses, Notices, &c. (1) Title. All notices, &c., shall be intituled in the matter of the Companies Acts, 1862 and 1867, and of the company to which [the same] shall relate, describing the company by its most usual style or firm : (G. O., 1868, r. 1.) (2) How Served. Services upon contributories and creditors shall be effected (except when personal service is required) by sending the notice, or a copy of the summons, or order, or other proceeding, through the post in a pre-paid letter, addressed to the solicitor of the party to be served (if any) or otherwise to the party himself at the address entered, or last entered, pursuajit to [rule 62 (see sup. (o) (7)] ; or, if no such entry has been made, then, if a contributory, to his last known address or place of abode ; and, if a creditor, to the address given by him [see sup. {m) (2)] ; and such notice, or copy summons, order, or other proceeding, shall be considered as served at the time the same ought to be delivered in the due course of delivery by the post-oflice, and notwithstanding the same may be returned by the post-office : (G. O., 1862, r. 63.) As to service out of the jurisdiction, see Be British Tnvperial Compcmy, W. N. 1877, p. 129; BeMaughan, 22 W. R. 748. (3) Service Not to be Invalidated. No service [upon contributories and creditors] shall be deemed invalid by reason that the Christian name, or any' of the Christian names, of the person on whom service is sought to be made, has been omitted, or designated by initial letters, in the list of contributories, or in the summons, order, notice, or other document wherein the name of such contributory or creditor is contained, provided the judge is satisfied that such service is in other respects sufficient : (G. O., 1862, r. 64.) (r) Orders. All orders made in chambers shall be drawn up in chambers, unless specially directed to be drawn up by the registrar, and shal^ be entered in the same manner, and in the same office, as other orders made in chambers : (G. O., 1862, r. 52.) (s) Advertisements. When an advertisement is required for any purpose, , except where otherwise directed by [the General Orders] the advertisement shall be inserted once in the London Gazette, and, in such other newspaper or newspapers, and for such number of times as may be directed. The judge may, in such cases as he shall think fit, dispense with any advertise- ment required by [the General Orders] : (G. C, 1862, r. 63.) (t) Fees. (1) Solicitor's. Solicitors shall be entitled to charge, and be allowed the fees set forth and referred to in the first schedule [to the General Orders, 1862], unless the court or judge shall otherwise specially direct : (G. O., 1862, r. 70.) (2) How Collected. The fees of court set forth and referred to in the second schedule [to the General Orders, 1862] shall be paid in relation to proceedings in B K B 2 980 Winding-up. the Court .... under the Companies Act, 1862, and shaR be collected by means of stamps, in the manner prescribed by the 39th of the Consoli- dated General Orders : (G. O., 1862, r. 71.) (3) Taxation of Costs. Where an order is made in court or chambers for payment of any costs, the order shall direct the taxation thereof by the taxing master ; except in cases where a gross sum in lieu of taxed costs is fixed by the order, in accordance with the 37th rule of the 40th of the Consolidated General Orders : (G. O., 1862, r. 72.) (m) Bissohdion. (1) Order for. When the affairs of the company have been completely wound-up, the court shall make an order that the company be dissolved from the date of such order, and the company shall be dissolved accordingly : (C. A., 1862, s. 111.) An order is seldom or never taken under this section, since great incon- venience might result if anything should afterwards turn up (if, for instance, assets should be afterwards discovered) which might render farther proceedings in the winding-up necessary : (Buck. 237.) (2) Minute. Any order [of dissolution] shall be reported by the official liquidator to the registrar, who shall make a minute accordingly in his books of the dissolution of such company : (C. A., 1862, s. 112.) (3) Disposal of Books, &c. Where-'any company has been wound-up .... and is about to be dis- solved, the books, accounts, and documents of the company -and of the liquidators may be disposed of in the following way ; that is to say, where the company has been wound-up by or subject to the supervision of the court, in such way as the court directs, and where the company has been wound-up voluntarily, in such way as the company by an extraordinary resolution directs ; but after the lapse of five years from the date of such dissolution, no responsibility shall rest on the company, or the liquidators, or any one to whom the custody of such books, accounts, and documents has been committed, by reason that the same, or any of them, cannot be made forthcoming to any party or parties claiming to be interested therein : (C. A., 1862, s. 155.) (■».) Termination of WinMng-v/p. (1) Balance Sheet of Liquidator. Upon, the termination of the proceedings in chambers for the winding- up of any company, a balance-sheet shall be brought in by the official liquidator of his receipts and payments, and verified by his affidavit ; and the official liquidator shall pass his final account, and the balance (if any) due thereon shall be certified. And upon payment of such balance, in such manner as the court or judge shall direct, the recognisance entered into by the official liquidator and his sureties may be vacated : (G. O., 1862, r. 65.) (2) Certificate of Chief Clerk. When the official liquidator has passed his final account, and the balance (if any) certified to be due thereon has been paid .in such manner as the judge shall direct, a certificate shall be made \)j the chief clerk, that the affairs of the company have been completely wound up ; and in case the company has not been already dissolved, the official liquidator shall, immediately after such certificate has become binding, apply to the judge Winding-up. 981 ^^ ^ '?;?®' **^* *^® company be dissolved from the date of such order : (G. O., 1862, r. 66.) [See sup. (Z.)] (3) Deposit of Documents in Central Office. / When the proceedings for -winding-up any company have been com- pleted, the file of proceedings, and the book containing the official " hqmdators account, shall be deposited in the -[Central] Office: (G. O., 1862, r..67.) {w) Enforcement of Orders. (1) In What Manner. All orders [in winding-up] made by the court may be enforced in the same manner in which orders of such court made in any suit pending therein may be enforced : (C. A., 1862, s. 120 ; and see Execution.) (2) In other Courts. Any order made by the court in England .... shaU be enforced in Scotland and Ireland iu the courts that would respectively have had jurisdiction .... if the registered, office of the, company had been situate in Scotland or Ireland, and in the same manner in all respects as if such order had been made by the courts that are hereby required to enforce the same; and in lite manner orders, interlocutors, and decrees made by the court in Scotland shall be enforced in England and Ireland; and orders made by the court in Ireland .... shall be enforced in England and Scotland by the courts which would respectively have had jurisdiction .... if the registered office of the compajiy were situate in the division of the United Kingdom where the , order is required to be enforced, and in the same manner in a^ respects as if such order had been made by the court required to enforce the same in the case of a company within its own jurisdiction : (C. A., 1862, s. 122.) (3) Mode of Dealing with Orders. Where any order, interlocutor, or decree made by one court is required to be enforced by another court, as . . . before provided, an office copy of the order, interlocutor, or decree so made shall be produced to the proper officer of the court required to enforce the same, and the production of such office copy shall be sufficient evidence qf such, order, interlocutor, or decree having been made, and thereupon such last-mentioned court shall take such steps in the matter as may be requisite for enforcing such order, interlocutor, or decree, in the Same manner as if it were the order, interlocutor, or decree of the court ., enforcing the same : (C. A., 1862, c. 123.) {x) Appeals. (1) From Winding-up Order [see Appeal]. (2) From Orders during Winding-up. .... Appeals from any order or decision made or given in the matter of the winding-up of a company by any court having jurisdiction .... may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same court in cases within its ordinary jurisdiction : (C A., 1862, 8. 124.) (3) Who may Appeal. Creditors and contributories who appeared below may appeal, and besides the official • liquidator and the parties to the application in the court below, any creditor or contributory of the company. may appeal without leave obtained for that purpose. 982 Winding-up. A contributory who has been settled on the list may make an original motion to settle other persons on the list as well, and a contributory may by leave appeal from an order excluding another contributory from the list : (Buck. 250.) (4) Time. Under 0. A., 1862, s. 124, and J. A., 1873, O. LVIII., rr. 9, 15, an appeal from an order made on a winding-up petition must be brought within law^enty-one days : (Buck. 248.) As a general rule an application to discharge an order made in chambers to place a person on the list of contributories of a company ought to be made within three weeks, which is the time limited for bringing an appeal: {Dickson's case, L. Rep. 12 Ch. Div. 298 ; 41 L. T. Rep, N. S. 184.) (5) Notice. [No] appeal shall be heard unless notice of the same is given within three weeks after any order complained of has been made, in manner in which notices of appeal are ordinarily given, according to the practice of the court appealed from, unless such time is extended by the Court of Appeal : (0. A., 1862, s. 124.) (y) Incidental Powers. (1) Consulting "Wishes of Creditors or Contributories. The court may, as to all matters relating to the winding-up, have regard to the wishes of the creditors or contributories, as proved to it by any sufficient evidence, and may, if it thinks it expedient, direct meetings of the creditors or contributories to be summoned, held, and conducted in such manner as the court directs, for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the court : in the case of creditors, regard is to be had to the value of the debts due to each creditor, and in the case of contributories to the number of votes con- ferred on each contributory by the regulation of the company : (C. A., 1862, s. 91.) ■ This section applies whether a winding-up order has been made or not : (Buck. 207.) As to cases where the section has been acted upon, see Buck. 207 ; Jle Sofbury Bridge Coal Convpany, W. N., 1879, p. 51. (i.) Notice of Meetings. When the judge shall direct a meeting of the creditors or contribu- tories of the company to be summoned, the official liquidator shall give notice in writing, seven clear days before the day appointed for such meeting, to every creditor or contributory, of the time and place appointed for sndbi meeting, and of the matter upon which the judge desires to asceriiain the wishes of the creditors or contributories; or, if the judge shall so direct, such notice may be given by advertisement, in which case the object of the meeting need not be stated, and it shall not be neces- sary to insert such advertisement in the London Gazette : (Gr. 0., 1862, r. 45.) (ii.) Votes at Meetings. The votes of the creditors or contributories of the company at any meeting summoned by the direction of the judge, may be given either personally or by proxy ; but no creditor shall appoint a proxy who is not a creditor of the company whose debt or claim has been allowed, and no contributory shall appoint a proxy who is not a contributory of the com- pany : (G. 0., 1862, r. 46.) Winding-up. 983 (iii.) Chief Clerk's Certificates Respecting Meetings. The direction of the judge for any meeting of creditors or contribu- tories .... and the appointment of a person to act as chairman of any such meeting, shall be testified by a memorandum signed by the chief clerk of the judge : (G. O., 1862, r. 47.) (2) Sanotioniug Arrangement. Where any compromise or arrangement shall be proposed between a company which is ... . being wound-up either voluiatarily or by or under the supervision of the court . . . . , and the creditors of such com- pany, or any class of such creditors .... the court [may] .... on application in a summary way of any creditor, or the liquidator order that a meeting of such creditors .... shall be summoned in such manner as the court shall direct; and if a majority in number representing three- fourths in value of such creditors .... present either in person or by proxy at such meeting shall agree to any arrangement or compromise, such arrangement or compromise shall, if sanctioned by order of the court, be binding on all such creditors . . . and also on the liquidator and contributories of the .... company : (J. S. C. A. A., 1870, s. 2.) Where the approval of the shareholders of a company, by the requisite majority, has been given to an honest arrangement between the company and its creditors, such approval is not a conditiou precedent to giving the sanction of the court: (Smith v. The Dynevor, Dyffryn, &c.,' CollieHes Company, 40 L. T. Rep. N. S. 409.) The court will not sanction a compromise when the effect of such an arrangement, if sanctioned, would be to affect a non-assenting creditor, who has a preferential right, which would have been respected if a winding-up order had been made. Where a petition for winding-up has been presented, whether by the company or by creditors thereof, the court will not allow a judgment creditor, who has been, induced by the repre- sentations and prayers of a comipany for delay of execution not to issue execution, to be deprived of the benefits which he would otherwise have obtained : (-Be Richards and Co. Limited ; Ex parte Crawshay, L. Rep. 11 Ch. Div. 676; 40 L. T. Rep. N". S. 315 ; 48 L. J. 555, Ch.) (3) Summoning Officers, &e., to Inform as to Property, (i.) Power to Summon. The court may, after it has made an order for winding-up .... summon before it any officer of the company or person known or snspected to have in his possession any of the estate or effects of the company, or supposed to be indebted to the company, or 'any person whom the court may deem capable of giving information concerning the trade, dealings, estate,, or effects of the company : (0. A., 1862, s. 115.) WTiere the liquidator is one of the parties charpd, he may be summoned by a contributory on making out a prima facie case, and before instituting any proceedings. A witness who is summoned under the section must be so by a- summons in the form, No. 54, in the schedule to the General Order, 1862, and not by subpoena. The witness is entitled to a reasonable notice, but not necessarily to the forty-eight hours required by the 22nd rule of the Order of the 5th Feb. 1861. . . . ^ . The liquidator need only show the court that there is a,pnma^ facie probability that the person is capable of giving important information. Witnesses refusing to attend will be made to pay the costs of compelling their attendance. 984 Windi/ng-up. The witness may be attended by his counsel and solicitor: (Buck. 239-42.) Except in an extreme case the Court of Appeal will not interfe;re with the discretion of a judge who has ordered persons to be summoned for examination on the ground that they are capable of giving information concerning the trade dealings, estate or efEects of the company : (Re Gold Company, L. Bep. 12 Oh. Div. 77.) (ii.) Examination of Parties. The court may examine upon oath, either by word of mouth or upon written interrogatories, any person appearing or brought before them , . . . . concerning the affairs, dealings, estate, or effects of the company, and may reduce into writing the answers of every such person, and, recfuire him to subscribe the same : (O. A., X862, s. 117.) (iii.) Production of Documents, &c. The court may require any such officer or person to produce any books, papers, deeds, writings, or other documents in his custody or power relating to the company : (0. A., 1862, s. 115.) (iv.) Lien on Documents, &c. In cases where any person claims any lien on papers, deeds, or writings or documents produced by him, such production shall be without preju- dice to such lien, and the court shall have jurisdiction in the windiiig-up to determine all questions relating to such lien : (Id.) (v.) Refusal to Appear. If any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the court at the time appointed, having no lawful impediment (made known to the court at the time of its sitting, and allowed, by it), the court may cause such person to be apprehended, and brought before the court for examination : (IS.) (4) Assessment of Damages against Delinquent Officers. "Wliere, in the course of the winding-up . . . . , it appears that amy pa^t or present director, manager, ofacial or other liquidator, or any officer of such company, has misapplied or retained in his own hands or become liable or accoxmtable for any moneys of the company, or been guUty of any misfeasance or breach of trust in relation to the company, the court may, on the application of any liquidator, or of any creditor or contributory of the company, notwithstanding that the offence is one for which the offender is criminally responsible, examine into the conduct of such director, manager, or other officer, and compel him to repay any moneys so misapplied or retained, or for which he has become liable or accountable, together with interest after such rate as the court thinks just, or to contribute such sums of money to the assets of the company by way of compensation in respect of such misapplication, retainer, misfeasance, or breach of trust, as the court thinks iust : (0. A., 1862, 8. 165.) Leave may be obtained to summon officers of the company resident in Scotland : (Buck. 493.) The executors of a director, deceased, not being officials of a company, cannot be proceeded against by summons taken out under the provisions of the above section. On summons by the liquidator and a whole life policy holder jointly, under the 165th section, for a declaration that the directors were liable to account to the company for premiums received, it was held that the summons was maintainable as against the surviving directors ; that the directors were liable, as for a breach of trust, for the premiums which Winding-up. ' 985 ought to have been invested ; and that the policy holder was a creditor of the_ company and rightly joined with the liquidator in the summons : (JBe British Guardian Life Assurance Company, L. Rep. 14 Oh. Div. 335.) (5) Prosecution of Delinquent Officers. Where any order is made for winding-up a company" by the court or under the supervision of the court, if it appear in the course of such winding-up that any past or present director, manager, officer, or member of such company has been gnuty of any ofEence in relation to the company for which he is criminally responsible, the court may, on the application of any person interested in such wiading-up, or of its own motion, direct the official liquidators .... to institute and conduct, a prose- cution or prosecutions for such offence, and may order the costs and expenses to be paid out of the assets of the company : (0. A., 1862, 2. VOLUNTAEILT. (a) Application to the Gov/rt. Every application .... [to the court] shall be made by petition or motion, or, if the judge shall so direct, by summons at chambers : (G-. O., 1862, r. 51.) (6) Liquidator. (1) Appointment. If from any cause whatever there is no liquidator acting in the case of a- voluntary winding-up, the court may, on the application of a contribu- tory, appoint a liquidator or liquidators : (0. A., 1862, s. 141.) (2) Removal. The court may .... on due cause shown, remove any liquidator, and appoint another liquidator to act in the matter of a voluntary winding-up : (Id.) The jurisdiction of the court to remove a liquidator for "due cause shown " is not to be exercised in the same way as if the power had been for the court to remove the liquidator " if the court shall think fit." Some unfitness in the liquidator must be shown in order to justify his removal, and the removing him is not a matter of pure judicial discretion : {Be Sir John Moore Gold Mining Company, L. Rep. 12 Ch. Div. 325.) (c) Exercise of Compulsory Process. .... The liquidators or any contributory of the company may apply to the court .... to determine any question arising in the matter of [a voluntary] winding-up, or to exercise, as respects the enforcing of calls, or in respect of any other matter, all or any of the powers which the court might exercise if the company were being wound up by the court ; and the court .... if satisfied that the determination of such question, or the required exercise of power, will be just and beneficial, may accede, wholly or partially, to such application, on such terms and subject to such conditions as the court tMnis fit, or it may make such other order, inter- locutor, or decree on such application as the court thinks fit : (C. A., 1862, 8.138.) The liquidators may apply by motion or summons to determme any question fairly arising in the winding-up : {Be Union Bank of Kingston- upon-Hull, L. Rep. 13 Ch. Div. 808; 42 L. T. Rep. N". S. 390.) A voluntary liquidator who applies to the court under the above section of the Companies Act, for an order under the 115th sectioiji to examine a person in respect of the affairs of the company, is not entitled as of right to the order, but must satisfy the court that it will be just and beneficial for the purposes of the winding-up : {Be Metropolitam, Bank, imf.) 986 Winding-up. Where a volvmtary liquidator has brouglit an action on behalf of the company against an officer of the company, and has exhibited interroga- tories which have been fully answered by the defendant, he will not be entitled to an order under the 115th section for the examination of the defendant unless he satisfy the court that, notwithstanding the interroga- tories already exhibited, he has a strong case for a further examination : {Be Metropolitan Bamik, Heir on' s Case, L. Rep. 15 Ch. Div. 139.) (d) Appeal. Any creditor or contributory of a company that has .... entered intO' any arrangement with its creditors may, within three weeks from the date of the completion of such arrangement, appeal to the court against such arr^gement, and the court may thereupon, as it thinks just, amend, vary, or confirm the same : (C. A., 1862, s. 137.) The remedy of a creditor of a company in voluntary liquidation, who cannot get payment of his debt, is to obtain a winding-up order before the expiration of a year after the passing of the special resolution. When a liquidator in a voluntary winding-up wishes to appeal against an order of a judge, he must first obtain leave from the judge, otherwise, in the event of his appeal failing, as a general rule, he will have his costs disallowed : (iJe Vity and Cownty Investment Gompa/ny, 42 L. T. Rep. N. S. 303 ; L. Rep. 13 Oh. Div. 475.) The court has no jurisdiction over a company when dissolved, under sect. 143 of the Companies Act, 1862, or any of its shareholders in a. voluntary winding-up under supervision, after the expiration of three months from the date of the registration of a return by the liquidators of a meeting having been held in pursuance of sect. 142 of the Act, where the creditor mating the claim has had notice of the winding-up proceed- ings. And where the summons has been served on the former uquidatois, shareholders, opposing on the ground that the liquidators have 'been discharged by reason of the dissolution, will not be allowed their costs of appearance : {Re The Westbourne Grove Drapery Compamy, Limited, 39' L. T. Rep. N. S. 30.) A company being in voluntary liquidation, and a petition for a compul- sory winding-up having been dismissed, the court, on the motion of the petitioner, who alleged misfeasance on the part of certain officers of th& company, gave liberty to summon such persons for the purpose of giving information as to the alleged misfeasance, but upon the terms that the costs should be reserved, and should be dealt with as the court should think fit : {Ex parte Carter ; Be The Gold Company, 40 L. T. Rep. N.S. 772.) The court has no jurisdiction to make an order for winding up a company which has been voluntarily wound up pud dissolved under the 142nd and 143rd sections of the Companies Act, 1862, unless the dissolution can be impeached on the ground of fraud : (Be London and Caledonian Marine Inswrance Company, L. Rep. 11 Ch. Div. 140 : 40 L. T. Rep. N. S. 666 ; 27 W. R. 713.) . . (e) Effect. The voluntary winding-up of a compauy shall not be a bax to the right of any creditor of such company to have the same wound-up by the court, if the court is of opinion that the rights of such creditor wiU be prejudiced by a voluntary winding-up : (C. A., 1862, s. 145.) As to the circumstances under which a company may be wound-up by the court, see svp. 1 {a) ; see also post. As_ to whether the' section, by specifying creditors, does not exclude contributories, and whether after the commencement of a voluntary Wimding'Up. 987 winding -np, a compulsory order can be made on a contributory's petition, see Buck. 145-6. After a resolution has been passed for winding-up a company voluntarily, a shareholder cannot, as a general rule, obtain a compulsory order for winding-up, or an order for continuing the voluntary winding-up under supervision. The only exceptions to 8ie rule are where the resolution has been passed fraudulently, or where creditors appear to support the petition : (Be Gold Company, L. Rep. 11 Oh. Div. 701 ; 40 L. T. Rep. N. S. 5 ; 48 L. J. 281, Oh.) (/) Adopting previous Proceedings. Where a company is in course of being wound-up voluntarily, and proceedings are taken for the purpose of having the same wound-up by the court, the court may, if it thinks fit,, notwithstanding that it makes an order directing the company to be wound-up by the court, provide in such order or in any other order for the adoption of all or any of the proceedings taken in the cpurse of the voluntary winding-up : (0. A., 1862, s. 146.) ig) Order for Criminal Prosecution. Application for leave to prosecute delinquent officers or members must be made by petition : (G. O., 1862, r. 51.) 3. Subject to Stjpekvision of Gottbt. (a) Voluntary Winding-up may he continued subject to Sfipervision of Court. When a resolution has been passed by a company to wind-up voluntarily the court may make an order directing that the voluntary winding-up should continue, but subject to such supervision of the court, and with such liberty for creditors, contributories, or others, to apply to the court, and generally upon such terms and subject to such conditions as the court thinks just : (C. A., 1862, s. 147.) It is cheaper and better in a large liquidation to get a compulsory order at once, as ' it saves the costs of frequent applications by the liquidator to the court : (Per jessel, M.R. ; Be Western District Bank, W. N. 1879, p. 151.) The winding-up under supervision is deemed to commence W the commencement of the voluntary winding-up (Buck. 271) ; and at the appointment of the provisional liquidator : [Bradshaw's case, L. Rep. 15 Oh. Div. 465.) The court has jurisdiction to make a compulsory winding-up order after a voluntary winding-up has been continued, subject to supervision of court, but will only do so in exceptional cases : {Be Orrdl Colliery Company, W. N. 1879, p. 106.) (6) Who may Petition. [See sup. 1 (6)1, Unless it appears that in passing the resolution for a voluntary winding- up the minority have been overborne by fraud, &c., the court will not generally on the petition of a contributory make an order to continue the voluntary winding-up under supervision : (Buck. 270.) (c) Wishes of Creditors or Contributories to be regarded. The court may, in determining whether a company is to be wound up altogether by the court or subject to the supervision of the court, in the appointment of liquidator or liquidators, and in aU other matters relatmg to the winding-up subject to supervision, have regard to the wishes of the creditors or contributories as proved to it by any sufficient evidence, and may diuect meetings ' of the creditors or contributories to be 988 WinMng-ii/p. smmnonecl, held, and regulated in such manner as the court directs for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the court : In the case of creditors, regard shall be had to the value of the debts due to each creditor, and in the case of contributories to the number of votes conferred on each contributory by the regulations Of the company : (C. A., 1862, s. 149.) {d) The Petition. (1) Title [see «Mp., 1 (c) (1)]. (2) Service. Every petition .... shall also be served upon the liquidator (if any) appointed for the purpose of winding-up the affairs of the company: (G. O., 1862, r. 3.) The petition must be served on the company also : (Buck. 271.) [See sup.; 1 (c) (2).] (3) Verification [see sup., 1 (c) (3)]. (4) Advertisement [see sitp.j 1 (c) (4)]. (5) Furnishing Copies [see sup., 1 (c) (5)]. (6) Effect. A petition, praying wholly or in part that a voluntary winding-up should continue, but subject to the supervision of the court .... shall,' for the purpose of giving jurisdiction to the court over suits and actions, be deemed to Ije a petition for winding-up the company by the court : (0. A., 1862, s. 148.) (7) Amendment [see sup., 1 (c) (6)]. (8) Transfer [see sv^., 1 (c) (7)]. (9) Priority [see sup., 1 (c) (8)]. (10) Costs [see sup., 1 (c) (9)]. (e) Bearing [see swp., 1 (d)]. (/) Winding-up Order. (1) Generally [see sup., 1 (e)]. (2) Copy for Registrar [see sup., 1 (e) (4)]. (3) Advertisement and Service [see sup., 1 (e) (5)]. (4) Effect. (i.) Dispositions of Property [see sup., 1 (e) (6) (i.)]. (ii.) Actions. Any order made by the court for a winding-up subject to the super- vision of the court shall for all purposes, including the staying of actions, suits, and other proceedings, be deemed to be an order of the court for winding-up the company by the court : (C. A., 1862, s. 151.) (iii.) Process [see sup., 1 (e) (6) (iii.)]. (/) Stofying and Transferring Winding-up and other ProeeedAngs [see sup. (/) (4) (iii.) and 1 (/). (fe) Liquidators [see sup., 1 (t)]. (1) Additioniil Liquidators, (i.) Power to Appoint. Where any order is made by the court for a winding-up subject to the supervision of the court, the court may, in such order or in any subse- quent order, appoint any additional liquidator or> liquidators : (0. A., 1862, s. 150.) Winding-up. 989 (ii.) Person Appointed. The court will have regard to the wishes of the creditors or contribu- tories in the appointment : (see sup. 3 (c).) (2) Security [see sup., 1 (l) (3) (iv.)]- (3) Description. In the construction of the provisions ^hereby the court is empowered to direct any act or thing to be done to or in favour of the official liquidators, the expression official liquidators shall be deemed to mean the liquidators conducting the winding-up, subject to the supervision of the court : (0. A., 1862, c. 151.) (4) Powers. Any [additional] liquidators appointed by the court shall have the same powers, be subject to the same obligations, and in all respects stand in the same position as if they had been appointed bv the company : (C. A., 1862,8.150.) The liquidators appointed to conduct [a] winding-up [under supervision of the court] may, subject to any restrictions imposed by the court, exercise all their powers, without the sanction or intervention of the court, in the same manner as if the company were being wound-up altogether voluntarily : (C. A., 1862, s. 151.) (5) Remuneration [see sup. 1 (I) (3) (xiv.).] (6) Removal. The court may from time to time remove any [additional] Uquidators appointed by the court, and fill up any vacancy occasioned by such removal, or by death or resignation : (C. A., 1862, s. 150.) See sup. 2 (6) (2), as to power of court to remove the liquidators appointed bythe company or the court in a voluntary winding-up. (i) Contributories. (1) CaUs. [The order for a winding-up subject to the supervision of the court] shall confer full anthority on the court to make calls, or to enforce calls made by the liquidators, and to exercise all other powers which it might have exercised if an order had been made for winding-up the company altogether by the court : (C. A., 1862, s. 151.) [And see sup., 1 (n) (9).] (2) Order Conclusive Evidence [see sup., 1 (n) (10).] (3) Costs [see sup., 1 (n) (12).] (4) Absconding Contributory [see swp., 1 (n) (13).] (5) Powers of Court Cumulative [see sup., 1 (w) (14).] (k) General Practice in Chambers [see svp., 1 (o).] (l) Evidence [see sup., 1 (p).] (m) Summonses, Notices, &o. [see swp., 1 (g).] (n) Orders [see sv/p., 1 (r).] (o) Advertisements [see swp., 1 («).] (p) Fees [see sup., 1 (t).'] {q) Dissolution [see sup., 1 (u).} (r) Bnforcemmt of Orders [see sup., 1 (to).] 990 Winding - up . , (s) Appeals. (1) From Winding-up Order [see Appeal.] (2) Prom Orders During Winding-up [see sup., 1, (»).] (7) Incidental Powers [see sup., 1 (j/).] II. UNREGISTERED COMPANIES (BY THE COURT). 1. What Companies. Any. partnership, association, or company, except railway companies incorporated by Act of Parliament, consisting of more thaji seven members, and not registered under [the] Act, and .... included under the term unregistered company, may be wound-up under [the] Act, and all the prpvisions of [the] Act with respect to winding-up shall apply to such - company [subject to the] exceptions and additions [set forth in the Act] (see infra) : (0. A.,_ 1862, s. 199.) Where an unregistered society, which was insolvent, had at one time more than seven members, but at the date of the petition consisted of only four members, although six former members who had withdrawn (without authority to do so in the society's rules) were then living, Jessel, M.R., refused a winding-up order ou the ground of there not being eight actual members : {Re Bolton Benefit Loan Society, L. Rep. 12 Ch. Div. 679.) This was contrary to an earlier decision of Lord RomiUy in a case where an unregistered society, which at one time consisted of thirty members, had, at the date of the petition, five only. It was held that the court had jurisdiction to wind-up an unregistered company of less than seven members, which had formerly consisted of more than seven members, an(J an order was made accordingly: (Be National Building Society, W. N. 1867, p. 225.) An unregistered company shall, for the purpose of determining the court having jurisdiction in the matter of the winding-up, be deemed to be registered in that part of the United Kingdom where its principal place of business is situate, or, if it has a principal place of business situate in more than one part of the United Kingdom, then in each part of the United Kingdom where it has a principal pla<;e of business ; more- over the principal place of business of an unregistered company, or (where it has a principal place of business situate in more than one part of the United Kingdom) such one of its principal places of business as is situate in that part of the United Kingdom in which proceedings are being insti- tuted, shall, for all the purposes of the winding-up of such company, be deemed to be the registered office of the company: (C. A., 1862, s. 199 (1).) No unregistered company shall be wound-up under [the] Act voluntarily or subject to the supervision of the court : (0. A., 1862, s. 199 (2).) 2. Undek what Circttmstances. (1) Whenever the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding-up its afeairs : (0. A., 1862, s. 199 (3) (a.) ) (2) Whenever the company is unable to pay its debts : {Id. (6.) ) An unregistered company shall, for the purposes of this Act, be deemed to be unable to pay its debts, (i.) Whenever a creditor to whom the company is indebted, at law or in equity, by assignment or otherwise, in a sum exceeding fifty pounds then due, has served on the company, by leaving the same at the principal place of business of the company, or by delivering to the secretary or some director or principal officer of the company, or by otherwise serving the same in such manner as the court may approve or direct, a demand under his hand Winding-up. 991 requiring the company to pay the sum so due, and the company has for the space of three weeks succeeding the service of such demand neglected to pay such sum, or to secure or compound for the same to the satisfaction of the creditor, (ii.) Whenever' any action, suit, or other proceeding has been instituted against any member of the company for any debt or demand due or claimed to be due, from the company, or from him in hie character of member of the company, and notice in writing of the institution of such action, suit, or other legal proceediug having been served upon the company by leaving the same at the principsfl place of business of the company, or by delivering it to ifiie secretary, or some director, manager, or principal officer of the company, or by otherwise serving the same in such manner as the court may approve or direct, the company has not within ten days after service of such notice paid, secured, or compounded for such debt or demand, or procured such action, suit, or other legal proceeding to be stayed, or indemnified the defendant to his reasonable satisfaction against such action, suit, or other legal proceeding, and against all costs, damages, and expenses to be incurred by him by reason of the same. (iiL) Whenever, in England or Ireland, execution or other process issued on a judgment, decree, or order obtained in any , court in favour of any creditor in any proceeding at law or in equity instituted by such creditor against the company, or any member thereof as such, or against any person authorised to be sued as nominal defendant on behalf of the company, is returned unsatisfied. (iv.) Whenever, in the case of an unregistered company engaged in working mines within and subject to the jurisdiction of the Stannaries, a customary decree or order absolute for the sale of the machinery, materials, and effects of such mine has been made in a creditor's suit in the court of the Vice- Warden. (t.) Whenever, in Scotland, the inducice for a charge for payment or an extract decree, or an extract registered bond, or an extract registered protest, have expired without payment being made, (vi.) Whenever it is otherwise proved to the satisfaction of the court that the company is unable to pay its debts : (0. A., 1862, s. 199 (4).) (3) Whenever the court is of opinion that it is just and equitable that the company should be wound-up : (0. A., 1862, s. 199 (3) (c.) ) See further, hereon, Buck. 346-351. 3. Effect of Winding-up Obdee. Where an order has been made for winding-up an unregistered company, in addition to the provisions .... contained [in the Act] in the ea^e of companies formed under [the] Act, it is hereby further provided that no suit, action, or other legal proceeding shall be commenced or proceeded with against any contributory of the company in respect of any debt of the company, except with the leave of the court, and subject to such terms as the court may impose : (0. A., 1862, s. 202.) 4. Peopektt to test in Official Liquidatobs. If any unregistered company has no power to sue and be sued in a common name, or if for any reason it appears expedient, the court may by the order made for winding-up such company, or by any subsequent order, direct that all such property, real and personal, including all interest, claims, and rights into and out of property, real and personal, and including things in action, as may belong to or be vested in the 992 Winding-top. company, or to or in any person or persons on tmst for or on behalf of the company, or any Tparb of snch property, is to vest in the ofS.cial liquidator or ofS.cial nqnidators by his or their official name or names, and thereupon the same or such part thereof as may be specified in the order shall vest accordingly, and the official liquidator or official liquidators may in his or their official name or names, or in such name or names and after giving such indemnity as the court directs, bring or defend any actions, suits, or otHer legal proceeding relating to any property vested in him or them, or any actions, suits, or other legal proceedings necessary to be brought or defended for the purposes of efPectna,Uy winding-up the company and recovering the property thereof : (0. A., 1862, s. 203.) A vesting order can be obtained on an ex parte motion. A schedule of the property upon which the vesting order is to operate should be annexed to the petition : (Buck. 355.) 5. ApPLicATioif OF Pkovisions Relating to the Winding-tip of Registeked Companies. The provisions made by ... . the Act with respect to unregistered companies shall be deemed to be made in addition to and not in restriction of any provisions .... with respect to winding-up companies by the court, and the court or official liquidator may, in addition exercise any powers or do any act in the case of unregistered companies which might be exercised or done by it or him in winding-np companies formed under [the] Act ; but an unregistered company shall not, except in the event of its being wound-up, be deemed to be a company under [the] Act, and then only to the extent provided by [the] Act : (0. A., 1862, s. 204.) [See sup. I., 1.] III. LIFE ASSURAKTCE COMPANIES (SPECIAL PROVISION'S). 1. Registration. Every insurance company registered under the Act, 8 Vict. c. 110, shall Tregister itself as a company under the Companies Acts, iii manner and subject to the regulations therein contained : (0. A., 1862, s. 209.) 2. How WouND-trp. Registered life assurance companies may be wound-up compulsorily, voluntarily, or under supervision of the court : (see sup. I., 1, 2, 3.) Unregistered life assurance companies must be wound-up compulsorily : (see sup. II.) ■ (a) Under what Circumstances. (1) Insolvency. The court majr order the winding-up of any company, in accordance with the Companies Act, 1862, .... upon its being proved to the satis- faction of the court that the company is insolvent, and in determining whether or not the company is insolvent the court shall take into account its contingent or prospective liability under policies and annuity and other existing contracts : (L. A. C. A., 1870, s. 21.) If the company is unable to meet current demands, it is commercially insolvent, and may be wound-up apart from the special grounds of what may be called prospective insolvency : (Buck. 551.) (2) Other Circumstances. [The court may order the winding-up of] every company which makes default in complying with the requirements of [the Life Assurance Companies Act, 1870] .... for a period of three months after notice of default by the Board of Trade, which notice shaR be published in one Winding-up. 993 or more newspapapers as the Board of Trade may direct : (L. A. C. A., 1870,8.18.) (6) Calling up of Capital. In the case of a- proprietary company having an uncalled capital of an amount sufficient with the future premiums receivable by the company to make up the actual invested assets equal to the amount of the estimated liabilities, the court shall suspend further proceedings on the petition for a reasonable time (in the discretion of the court) to enable the uncalled capital, or a sufficient part thereof, to be called up ; and if, at the end of the original or any extended time for which the proceedings shall have been suspended such an amount shall not have been realised by means of calls as, with the already invested assets, to be equal to the liabilities, an order shall be made on the petition as if the company had been proved insolvent : (L. A. C. A, 1870, s. 21.) (g) Who May Petition. [Application for winding-up shall be made by petition by] one or more policy-holders or shareholders: (L. A. G.,A., 1870, ss. 18, 21.) (d) The Petition. The petition must be entitled under the Life Assurance Companies Act, 1870: (Buck. 561.) (e) Searing. (1) Security for Costs. The court shall not give a hearing to the petition until security for costs for such amount as the judge shall think reasonable shall be given : (L. A. C. A., 1870, 8. 21.) (2) Prima Facie Case. [The court shall not give a hearing to the petition] until a primd facie case shall also be established to the satisfaction of the judge: (Id.) Where a policy-owner in a life insurance company, being a creditor, presented a petition for the winding-up of the company, it was held that the provisions of the Life Assurance Companies Act, 1870, s. 21, had not been complied with, and that the proper course is to mark such a petition with a special ^ai, directing an inquiry before the judge in chambers as to whether or not there is a primd facie case of insolvency, in order to justify the hearing of the petition : {Be Great Britain Life Assurance Society, W. N. 1880, p. 164 ; 70 L. T. 24; see post, (/).) The company is not heard on the preliminary inquiry, for the petitioner is only required to make out a primd facie case. If the company were heard, the result would in fact be that the real matter in issue on the petition would be fought out on the preliminary inquiry, Thus either the solvency of the company would be tried in a private proceeding, or the company would lose the benefit of the privacy, which the Act desires to maintain until ajsriwa/acie case is shown: (Buck. 650. )_ . The practice is to mark the petition with a special ^ai m the followmg " The court doth order that this petition be referred to the judge in chambers to inquire whether a prima facie case within the meaning of sect 21 of the Life Assurance Companies Act, 1870, is established and to consider the security for costs to be given pursuant to the same section, and the result of such inquiry is to be certified to the court." The matter then goes to chambers, and is there heard ex pa/rte. Upon the result of the proceedings in chambers, the petition wiU be answered for hearing in the usual way : (Buck. 550.) s s s 994 WincUng-up. (/) Beduction of Contracts in Lieu of Winding-v/p. The court,- in the. case of a company which has been proved to be insolTent, may, if it thinks fit, reduce the amount of the contracts of the company upon such terms, and subject to such conditions, as the court thinks just, in place of making a wiitding-up order : (L. A. 0. A. 1870, s. 22.) Where, after a winding-up order had been made, certain policy-holders applied to the court to order a meeting of policy-holders to be held to ascertain their wishes, and with a Tiew to reduce the contracts of the society, pursuant to the above section, the court discharged the winding- up order, and complied with the wishes of the policy-holders, and directed a. meeting to be called : {Be Great Britain Life Assurance Society, W. N. 1880, p. 181 ; 43 L. T. Rep. N. S. 684; see sup. (e) (2).) {g) Liquidator. The court will not appoint a provisional liquidator ex pa/rte before the preliminary inquiry has been answered : (Buck. 551.) (h) Valuation of Policies and Annuities. .... The official liquidator in the case of all persons appearing by the books of the company to be entitled to or interested in policies granted by such company, for life assurance, endowment, annuity, or other payment, is. to ascertain the value of such policies, and give notice of such value to such persons, and any person to whom notice is so given shall be bound by the value so ascertained unless he gives notice of his intention to dispute such value in manner and within a time to be prescribed by a rule or order of the court : (L. A. 0. A., 1872, sch. II.) .... The value of every life annuity and life policy requiring to be valued in [the] winding-up shall be estimated in manner provided W the first schedule to [the Life Assurance Companies Act, 1872] : (L. A. 0. A., 1872, s. 6.) (i) Subsidiary Company. (1) May be Wound-up in conjunction with Principal Company. Where the business or any p^rt of the business oi a life assurance company has .... been transferred to another company under an arrangement in pursuance of which such first-mentioned company ( . . . . called the subsi(Uary company) or the creditors thereof has or have clsums against the company to which such transfer was made ( . . . . called the principal company) then, if such principal company is being wound-up .... the court shall (subject as hereinafter mentioned) order the subsidiary company to be wound-up in conjunction with the principal company : (L. A. C: A., 1872, s. 4.) (2) Who may Petition. An application may be made in relation to the winding-up of any subsidiary company in conjunction with a principal company by any creditor of, or person interested in, such principal or subsidiary company : (3) Commencement of Winding-up. The commencement of the winding-up of the principal company shall, save as otherwise ordered by the court, be the commencement of the winding-up of the subsidiary company : (Id.) See GoA-diner's case, L. T. 63 (Eur. Arb.) ; 17 Sol. J. 64 ; Conquest's case, L. T. 121 (Eur. Arb.) (4) Liquidator. [The court] may by the same or any subsequent order appoint the same person to be Cqnidator for the two companies, and make provision for such Winding-up. 995 other matters as may seem to the court necessary, with a view to such companies heing wound-up as if they were one company : (L. A. C. A., 1872, s. 4.) (5) Regard to Circimistanees. _ The court nevertheless shall have regard, in adjusting the rights and liabilities of the members of the several companies between themselves, to the constitution of such companies, and to the arrangements entered into between the said companies, in the same manner as the court has regard to the rights and liabilities of different classes of contributories in the case of the winding-up of a single company, or as near thereto as circumstances admit : (Id.) (6) Considerations, on Ordering Winding-up, where not Included in Origind Winding-up. Where any subsidiary company or company alleged to be subsidiary is not in process of being wound-up at the same time as the principal company to which it is subsidiary, the court shall not direct such subsidiary company to be wound-up unless after hearing aU objections (if any) that may be urged by or on behalf of such company against its being wound-up, the court is of opinion that such company is subsidiary to the principal compajiy, and that the winding-up of such company in conjunction with the principal company is just and equitable : (Id.) (7) When being Wound-up by Different Branches of Court. Where amy subsidiary company and principal company are being woimd- up by different branches of the court, the [Lord Chancellor] shall make an order directing in which branch the winding-up of such companies is to be carried on, and the necessary proceedings shall be taken for carrying such order into effect : {Id.) ; See Tbansfeb.) (8) May be Wound up Together or in Separate Groups. Where a company stands in the relation of a principal company to one company, and in the relation of a subsidiary company to some other company, or where there are several companies standing in the relation of subsidiary companies to one principal company, the court may deal with any number of such companies together or in separate groups, as it thinks most expedient, npon the principles laid down in this section : (Id.) See Buck. 566. IV. RAILWAT COMPANIES. For' the special provisions relating to the winding-up of raUway companies, see Companies XI., 1, and Buckley, 348. WITHDRAWAL. fSee DiscoNTiNUASfCE AND Withdrawal.] WITNESS. [See Evidence ; Tkial.] s s s 2 996 Writ. WRIT. Oe Assistance. [See Execution, XXIII.] Op Attachment. [See Execution, XX."] Of Oektiobari. [See Oeetioeaei]. De Contumacb Capiendo. [See Judgment, XXV., 1(c).] Op Delivery. [See Execution, XXIV.] Op Distbing-as Nupek Vice Oomitem. [See Execution, XV., 1.] Op Elegit. [See Execution, XIV.] Op Eibei Facias. [See Execution, Xin.] Op Pieei Facias de Bonis Ecclesiasticis. [See Execution, XV., 3.] Op Inquiet. [See Inquieibs, II.] Op Mandautts. [See Mandamus.] Op Nb Exeat Regno. [See Abeest, II., 2.] Op Possession. [See Execution, XXII.] Op Pbohibition. [See Pbohibition.] Op Sequesteaei Facias de Bonis Ecclesiasticis. [See Execution, XV., 3.] Op Seq^bsteation. [See Execution, XVII.] Op Subpcena. [See Evidence ; Solicitoes, IV.] Op Summons. [See "Weit op Summons.j Op Venditioni Exponas. [See Execution, XV., I.] Writ of Summons. 997 WRIT OF SUMMONS. I. WHAT PEOCEEDmeS COMMENCED BY WKIT. n. PEEPAEATION. ni. PAPER, Ac. IV. DATE AOT) TESTING. V. DIVISION AND JUDGE. VI. DIRECTION AS TO APPEARANCE. Vn. FORMS. 1. Wkit pob Seevioe within Jukisdiction. 2. Wkit tok Sekvice out of Jukisdiction. 3. Notice or Writ fob Service out of Jttbisdiction. Vm. INDORSEMENTS. 1. Of Claim. (a) General Rules. (b) Different Kinde. (1) General, not being for a Debt or Liquidated Demand. (2) General, for a Debt or Liquidated Demand. (3) Special Indorsement. (4) Indorsement for Account. (c) Joinder of Causes of Action. (1) Several in one Claim. (2) Claim for Recovery of Land. (3) Claims by Tmstees in Bankruptcy. (4) Claims by or against Husband and Wife. (5) Claims by or against Executors or AdministratoiB. (6) Joint and Several Claims. (7) By Amendment. (8) Separating Joined Causes. 2. Of Address foe Service. (o) Where Writ Issued out of London Office, (b) Where Writ Issued out of District Registry. IX. ISSUE. 1. Leave for Wbit foe Service out of Jubibdiction. 2. Place op Issue. 3. Mode of Issue. X. PILING AND ENTRY. XI. HOW ACTION DISTINGUISHBD. XIL RENEWAL. 1. When Nbcessabt. 2. How Application Made. 3. When Application Made. 4. Oedee foe Renewal. 5. How Renewal Made. 6. Effect. 7. Evidence of Renewal. Xm. AMENDMENT. XIV. SERVICE. 1. Within the Jubibdiction. (a) When Vrmecessary. (6) How Effected. (1) In Ordinary Cases. (2) On Wife, where Defendant with Husband. (3) On Infant. (4) On Lunatic, so Pound. 998 Writ of Summons. (5) On Lunatic, Not ao Found. (6) On Partnership Firm. (7) On Corporations, &c., under Statutes as to Service. (8) On New Defendant, 2. Out of the Jtjbisdiction. (a) When Allowed. (h) When Application Made. (c) How AppUcaUon Made. (d) Evidence. (e) How Discretion Exercised im, Action on Contract, (f J Order. (g) How Writ Served or Notice Given, (h) How Order Set Aside. 3. Substituted Sbkvice. (a) In Action for Recovery of Lamd. (6) By Order in Other Cases. XV. ESTDOESEMENT OP DATE OP SEKVICE. XVI. EEGISTEATION [see Lis Pendens]. XVIL DISCLOSUEE BY SOLICITOES, PLAINTIPPS, AND PAETNBES. XVm. CONCUEEENT WEITS. I. ' WHAT PROCEEDINGS COMMENCED BY WRIT. All actions [formerly] commenced by writ in the Superior Courts of Common Law, or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, and all suits [formerly] commenced by bill or information in the High Court of Chancery, or by a cause in rem or in persona/m in the High Court of Admiralty, or by citation or otherwise in the Court of Probate, shall be instituted in the High Court of Justice by a proceeding, to be called an action : (O. I., r. 1.) Every action in the High Court shall be commenced by a writ of sum- mons : (O. II., r. 1.) n. PREPARATION. Writs of summons shall be prepared by the plaintifE or his solicitor : (O. v., r. 5.) ni. PAPER, ETC. Writs of summons shall be written or printed, or partly written and partly printed, on paper of the same description as hereby directed in the case of proceedings toected to be printed (O. V., r. 5) ; {i. e'., cream-wove machine drawing foolscap folio paper, 191b. per mill ream : (O. LVI., r. 2.) IV. DATE AND TESTING. Every writ of summons .... shall bear da,te on the day on which the same shall be issued, and shall be tested in the name of the Lord Chan- cellor, or if the office of Lord Chancellor shall be vacant, in the name of the Lord Chief Justice of England : (O. 11., r. 8.) V. DIVISION AND JUDGE TO BE SPBCIFIBD. [The] writ of summons .... shall specify the division of the Hjgh Court to which it is intended that the action should be assigned : (O. fl., r. 1.) Subject to the power of transfer, every person by whom any cause or matter may be commenced in the High CoTu^i of Justice which would have been within the non-exclusive cognisance of the High Court of Admiralty if the said Act had not passed, shall assign such cause or matter to any Writ of Summons. 999 one of the divisions of the said High Court .... as he may think fit, by marking the document by which the same is commenced with the name of the division, and giving notice thereof to the proper of&cer of the court. If so marked for the Chancery Division, the same shall be assigned to one of the judges of such division by marking the same with the name of such of the said judges as the plaintiff .... subject to such power of transfer, may think fit : (O. T., r. 4 ; J. A., 1873, s. 33. STo cause or matter is to be assigned to Mr. Justice Fry, by being marked with his name, imtil further order: (Order of L. C, 19th June, 1877, W. N., 1877, p. 307.) VI. DIRECTION AS TO APPEARANCE. In all cases where a defendant neither resides, nor carries on business, within the district out of the registry whereof a writ of summons is issued, there shall be a statement on the face of the writ of summons that" such defendant may cause an appearance to be entered at his option either at the district registry or the London office, or a statement to the like effect : (O. v., r. 2.) In all cases where a defendant resides, or carries on business, within the district, and a writ of summons is issued out of the district registry, there shall be a statement on the face of the writ of summons that the defendant do cause an appearance to be entered at the district reg^try, or to the like effect : (O. v., r. 3.) VII. FORMS. 1. Weit for Sebtice within Jukisdiction. The writ of summons for the commencement of an action shall, except in the cases in which any different form is hereinafter provided, be in Form No. 1, in part 1 of Appendix A. to [the Rules of 1875] with such variations as circumstances may require : (O. II., r. 3.) The form of a writ issued out of a district registry is given in Sched. A. lb. to the Rules of April, 1880. 2. Weit foe Seetice out op Jtjeisdiotion. A writ of summons to be served- out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be in Form No. 2 in part 1 of Appendix A. [to the Rules of 1875] with such variations as circum- stances may require : (O. II., r. 5.) Form 2 .... in Part I. of Appendix A. to the Rules of the Su_preme Court shall be read as if the words " by leave of the court or a judge" were not therein : (O. II., r. 3a., June, 1876.) A form of specially indorsed writ issued from the Central Office for service out of the jurisdiction is given in Scbed. A. 2a. to the Rules of April, 1880.) , ^ ^. ^ . ^ Forms of ordinary and specially indorsed writs issued from a district registry for service out of the jurisdiction are given in Schedules A. 2b. and A. 2c. to the same rules. 3. Notice of Weit foe Seevice out of Jueisdiction. [A notice of a writ of summons to be served out of the jurisdiction] shall be in Form No. 3 in [Part. I., of Appendix A. to the Rules of 1875] with such variations as circumstances may require : (O. II., r.,5.) Form 3 in Part I. of Appendix A. to the Rules of the Supreme Court shall be read as if the words " by leave of the court or a judge " were not therein : (O. II., r. 3a., June, 1876.) .„,,,,„,,,„, „ The district registry form is given in Schedule A. da. to the Rules ot April, 1880. 1000 Writ of Summons. VIII. INDOBSEMBNTS. 1. Op Claim. (a) General Rules. [The writ of summons] shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action : (O. II.. r. 1.) In the indorsement required by Order II., r. 1, it shaU not be essential to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintm considers himself entitled : (O. III., r. 2.) If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the indorsement shall show, in manner appearing by the statement in Appendix A. [to the SulesJ, part II., sect. 8, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued : (O. III., r. 4.) The indorsement of claim may be to the effect of such of the forms in Part II. of Appendix A. [to the rules] as shall be applicable to the case, or if none be found applicable then such other similarly concise form as the nature of the, case may require : (O. III., r. 3.) The indorsement of claim shall be made on every writ of summons before it is issued : (O. III., r. 1.) Any costs occasioned by the use of any more prolix or other forms of writs, and of indorsements thereon, than the forms .... prescribed, shall be borne by the party using the same, unless the court shall otherwise direct: (O. II., r. 2.) (6) Different Kinds. There are five different kinds of indorsement of claim : (1) General, not being for a debt or liquidated demand. (2) General, for a debt or liquidated demand. (3) Special. (4) For account. No writ shall hereafter be issued under the Summary Procedure on BUls of Exchange Act, 1855 (18 & 19 Vict. c. 67) : (O. II., r. 6, April, 1880.) (1) General, not being for a Debt or Liquidated Demand. Examples of forms of claim where no debt or liquidated demand is claimed are set out in Appendix A., part II., ss. 1, 4, 5, and 6. Those in sect. 1, relating to matters assigned to the Chancery Division [see .A.CTION], are set forth under the proper titles. (2) General, for a Debt or Liquidated Demand. Wherever the plaintiff's claim is for a debt or liquidated demand only, the indorsement, beside stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs respectively, and shall further state, that upon payment thereof within four days after service, or in case of a writ not for service within the jurisdiction within the time allowed for appearance, further proceedinsrs will be stayed : (O. IH., r. 7.) re The claim, as to the money, must be in one of the forms in Appendix A., part 2, s. 2. Such statement may be in the form in Appendix A part II s. 3 : (O. ni., r. 7.) The following is the form — And I. for coats ; and if the amount claimed be paid to the plaintiff or his solicitor within four days [or if the writ is to he served out of thejwrisdAc- Uon, or notice in Ueu of service allowed, insert the time for appecirance limited by the order"] from the service hereof further proceedings wiU be stayed : (App. A., P. n., s. 3.) Writ of Bummons. 1001 The defendant may, notwithstanding such payment, have the costs taxed, and if more than one-sixth shall be disallowed, the plaintiff's solicitor shall pay the costs of taxation : (O. III., r. 7.) ■ Where the plaintiff issued a writ indorsed with the amount of the debt and a sum for costs, and more than four days after serrice accepted payment of the fuU amount indorsed, without any agreement as to costs, it was held that the defendant was entitled to tax the costs under the rule : (Hoole v. Earnshaw, 39 L. T. Rep. N. S. 410.) (3) Special Indorsement. In all actions where the plaintiff seeks merely to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising upon a contract, express or implied, as, for instance, on a bill of exchange, promissory note, cheque, or other simple contract debt, or on a bond or contract under seal for payment of a liquidated amount of money, oir on a statute where the sum sought to ,be recovered is a fixed sum of money or in the nature of a debt, or on a guaranty, whether under seal or not, where the claim against the ■ principal is in respect of such debt or liquidated demand, bill, cheque, or note, or on a trust, the writ of summons may be specially indorsed with the particulars of the amount sought to be recovered, after giving credit for any payment or set-off : (O. ni., r. 6.) Examples of forms of special indorsement are given in Appendix A'., Part II., sect. 7, and Schedules A. la. and A. 2a. to the Rules of April, 1880. Forms for service in the district registry are given in Schedules A. Ic. and A. 2c. to the Rules of April, 1880. Sufficient particulars ought to be given to enable the defendant to satisfy his mind Whether he ought to pay or resist: {Walker y. Hicks, L. Rep. 3 Q. B. Div. 8; 37 L. T. Rep. N. S. 529 ; 47 L. J. 27, Q. B. ; 26 W. R. 113; Parpaite Freres v. Dickinson, W. N. 1878; p. 51; 38 L. T. Rep. N. S. 178 ; 26 W. R. 179 ; Smith v. Wilson, L. Rep. 4 C. P. Div. 392 ; L. Rep. 5 0. P. Div. 25 ; 41 L. T. Rep. N. S. 433 ; 49 L. J. 96 ; 28 W. R. 57.) . , Where there is a claim for costs, the amount must be ascertained so that the claim may be for a specific sum of money : (French v. Lea/r, 21S. J. 479.) ^ ^ ^ The same forms as those used under s. 25 of the Common Law Pro- cedure Act, 1852, will suffice : {Aston v. Surtoitz, 41 L. T. Rep. N. S. 521 ; W. N. 1879, p. 194.) , , ^ A writ indorsed for an injunction and other rehef, and tor payment of a sum of 10002., alleged to have been received by the defendant as plaintiff's solicitor, is not a specially indorsed writ : {Yeatmanv. Snow, %2 L. T. Rep. N. S. 502 ; 28 W. R. 674.) ^ As to the effect of a special indorsement, see Judgment, I., 1 (6) ; 111. A plaintiff may be ordered to give particulars of items which are, in his cLim, placed to the defendant's credit : {Godden v. Corsten, L- Rep. 5 0. P. Div 17 ; 41 L. T. Rep. N. S. 627 ; 49 L. J. 112, C. P. ; 28 W. R. 305.) (4) Indorsement for Accouni>. In all cases of ordinary account, as, for instance, in the case of a partnership or executorship or ordinary trust account, where the plaintiff, in the first instance, desires to have an account taken, the writ ot summons shall be iadorsed with a claim that such account be taken: (O. III., r. 8; and see Account.) 1002 Writ of Summons. (c) Joinder of Causes of Action. (1) Several in one Claim. Subject to the following rules [RnleS'2-9 of Ord. XVII.] the plaintiff may unite in the same action and in the~ same statement of claim several causes of action : (O. XVII., r. 1.) Alternative relief may be asked for (per Cairns, L.O., Botgot V. Boston, L. Rep. 7 Ch. Div. 1 ; 37 L. T. Rep. K S. 369 ; 47 L. J. 225, Ch. ; 26 W. R. 66) ; but it must not be inconsistent : {Id. ; Ede v. Vyse, W. N. 1877, p. 98.) Claims by a purchaser for return of a deposit on the ground of misdescription, and, alternatively, specific performance of the contract if the court thought h^m bound by it, was held too inconsistent : {Ede v. Vyse, svp.) Claims for an injunction agaiust breach of covenant on the footing of an agreement continuing, and for recovery of possession notwithstanding the agreement, were held too inconsistent : {Evans v. Davis, L. Rep. 10 Oh. Div. 747 ; 39 li. T. Rep. N. S. 391.) Nothing can be granted by way of further relief, inconsistent with what is expressfy asked : {Cargill v. Bower, L. Rep. 10 Ch. Div. 502.) See also Pleading, in., 7, and post (8). (2) Claim for Recovery of Land. No cause of action shall, unless by leave of the court or a judge, be joined with an action for the recovery of land, except claims in respect of mesne profits or arrears of rent in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held : (O. XVII., r. 2 ; and see Rbcoveet op Land, II.) (3) Claims by Trustees in Bankruptcy. Claims by a trustee in bankruptcy as such shall not, unless by leave of the court or a judge, be joined with any claim by him in any other capacity : (O. XVIL, r. 3.) The application for leave must be made before service of the writ : (see Be Pilcher, Pileher v. Hinds, L. Rep. 11 Ch. Div. 905; 40 L. T. Rep. N. S. 422, 832; 48 L. J. 5l2, 587, Ch.) (4) Claims by or against Husband and Wife. Claims by or against husband and wife may be joined with claims by or against either of them separately : (O. XVII., r. 4.) This rule is subject to the rules mentioned post (8) : (O. XVII., r. 7.) _A writ of summons issued by the next friend of a married woman, without the employment of a solicitor, will be set aside with costs • {Swaim V. Swann, 43 L. T. Rep. N. S. 530.) (6) Claims by or against Executors or Administrators. Claims by lor against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator : (O. XVII., r. 5.) The claim must be against assets, qua assets : {Johnson v. Bu/rgess, 47 L. J. 552, Chi) . The rule is subject to the rules mentioned, post (8) : (O. XVII., r. 7.) (6) Joint and Several Claims. Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant : (O. XVII., r. 6.) This rule is subject to the rules mentioned ^oat (8) : (O. XVII., r. 7.) Writ of Summons. 1003 (7) By Amendment. The plaintiff may by leave of the court or judge amend [his] indorse- ment so as to extend it to any other cause of action or any additional remedy or relief : (O. III., r. 2.) When a statement of claim has been delivered, amendment of the indorsement is unnecessary : [Large v. Large, W. N. 1877, p. 198.) (8) Separating Joined Causes. If it appears to the court or a judge that any such causes of action [as are mentioned sup. (1), (4), (5), and (6)] cannot be conveniently tried or disposed of together, the court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof : (O. XVII., r. 1 ; Id., r. 7.) Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of in one action, may at any time apply to the court or a judge for an order con- fining the action to such of the causes of action as may be conveniently disposed of in one proceeding : (O. XVII., r. 8.) If on the hearing of such application as in the last preceding rule mentioned, it shall appear to the court or a judge that the causes of action are such as cannot all be conveniently deposed of in one action, the court or a judge may order any of such causes of action to be excluded, and may direct the statement of claim, or, if no statement of claim has been delivered, the copy of the writ of summons, and the indorsement of claim on the writ of summons to be amended accordingly, and may make such order as to costs as may be just : (O. XVIL, r. 9.) 2. Of Addbess foe Service. (a) Where Writ issued out of London Office. The solicitor of a plaintiff suing by a solicitor shall indorse upon every writ of summons and notice in lieu of service of a writ of summons the address of the plaintiff, and also his own name or firm and place of business, and also, if his place of business shall be more than three miles from Temple Bar, another proper place, to be called his address for service, which shall not be more than three miles from Temple Bar, where writs, notices, petitions, orders. Summonses, warrants, and other docu- ments, proceedings, and written communications may be left for him. And where any such solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor : (0. IV., r. 1.) ^Notwithstanding anything to the contrary contained in Order IV. of " the Rules of the Supreme Court," rule 1 .... of such order shall only apply where the writ of summons is issued out of the London ofiice : (O. rV., r. 2a., Feb. 1876.) As to disclosure of solicitor's authority, see post, XVII. A plaintiff suing in person shall indorse upon every writ of summons and notice in Ueu of service of a writ of summons his place of residence and occupation, and also, if his place of residence shall be more than three miles from Temple Bar, another proper place, to be called his address for service, which shall not be more than three miles from Temple Bar, where writs, notices, petitions, orders, summonses, warrants, and other documents, proceedings, and written communications may be left for him : (O. IV., r. 2.) Notwithstanding anything to the contrary contained in Order IV. of the Rules of the Supreme Court, rule .... 2 of such order shaJl only- 1004 Writ of Summons. apply where the writ of summons is issued out of the London office : (0. rV., r. 2a, Feb. 1876.) Thb name and address of the plaintifE who is actually suing must be given : (Leathley t. McAnd/rew, W. N. 1876, p. 269.) (6) Where Writ issued out of District Registry. In all cases where a writ of summons is issued out of a district registry, the solicitor shall give on the writ the address of the plaintifE and ms own name or firm and his place of business, which shall, if Ms place of business be within the district of the registry, be an address for service, and, if such place be not within the district, he shall add an address for service within the district ; and where the defendant does not reside within the' district, he shall add a further address for service, which shall _not_ be more than three miles from Temple Bar ; and where the solicitor issuing the writ is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the, principal sohcitor : (0. IV., r. 3, Feb. 1876.) As to disclosure of solicitor's authority, see post, XVI.) Where the plaintifE sues in person, he shall give on thewrit his place of residence and occupation, which shall, if his place of residence be within the district, be an address for service, and if such place be not within the district, he shall add an address for service within the district, and where the defendant does not reside within the district, he shall add a further address for service, which shall not be more than three miles from Temple Bar : (O. IV., r. 3, Feb. 1876.) IX. ISSUE. 1. Leave foe Writ pok Sbevice out of Jtjeisdiction. No writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of a court ot judge : (O. II., r. 4.) The court has a discretion as to giving leave : [Preston v. Lcmiont, 24 W. R. 928.) The order wiU be made on an affidavit as to the merits : (YovMg v. Brassey, L. Rep. 1 Ch. Div. 277.) This application and the application for leave to serve the writ must be made together : (see^osf, XIV., 2 (6).) 2. Place of Issue. In any action other than a probate action, the plaintifE wherever resident may issue a writ of summons out of the j-egistry of any district : <0. v., r. 1.) Every writ of summons not issued out of a district registry shall be issued out of the Central Office': (0. V., r. la, April, 1880.) 3. Mode of Isstte. Every writ of summons shall be sealed by the proper officer, and shall thereupon be deemed to be issued : (O. V., r. 6.) Before the name of any person shall be used in any suit to be instituted .... as next friend of any infant, married woman, or other party, or as a 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 [writ] :_(16 & 16 Vict. c. 86.) A writ issued by a next friend, without the employment of a solicitor, will be set aside with costs ; (Bwann v. Swann, 48 L. T. Bep. N. S. 530.) The plaintifE or his solicitor shall, on presenting any writ of summons lor sealing, leave with the officer a copy, written or printed, or partly Writ of Summons. 1005 written and partly printed, on paper of the description aforesaid, of such writ, and all the indorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiiE himself if he sues in person : (O. T., r. 7.) The copy is sufficient evidence, in another trial, of the institution of the action : {Beg. v. Scott, L. Rep. 2 Q. B. Div. 415.) If an order has been made for leave to issue and serve a writ out of the jurisdiction, the order must be copied on the copy writ for filing : (Dan. Forms, 3rd edit., 98.) X. PZLING AKD ENTRY. The officer receiving such copy shall file the same, and an entry of the filing thereof shall be made in a book to be called the Cause Book, which is to be kept in the manner in which Cause Books have heretofore been kept by the Clerks of Records and Writs in the Court of Chancery : (O. Y., r. 8.) XI. HOW ACTION DISTINGUISHED. The action shall be distinguished by the date of the year, a letter, and a number, in the manner in which causes are now distinguished in such last-mentioned Cause Books : (O. Y., r. 8.) When such action shall be commenced in a district registry, it shall be further distinguished by the name of such registry : {Id., June, 1876.) Xn. RENEWAL. 1. When Necessary. Renewal becomes necessary when service has not been effected imtil nearly the expiration of the time during which the writ' is in force. No original writ of summons shall be in force for more than twelve months from the day of the da,te thereof, including the day of such date : (O. Yin., r. 1.) 2. How Application Made. If any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to a judge, or the district registrar, for leave to renew the writ : {Id.) > [Evidence must be produced so that the judge or the registrar may be] satisfied that reasonable efforts have been made to serve the defendant, or ... . other good reason [must be shown] : (7c?.) 3. When Application Made. [The application must be made] before the expiration of the twelve By leave it may be renewed afterwards {Be Jones, W. N. 1877, p. 38 ; 46 L. J. 316, Ch.), unless the Statute of Limitations has run in the meantime : {Doyle v. Kaufmcm, L. Rep. 3 Q. B. Div. 7, 340 ; 47 L. J. 26, Q. B.; 26 W. R. 98.) 4. Okdeb foe Renewal. The judge or registrar, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal,.and so from time to time during the currency of the renewed writ : (O. YIH., r. 1.) , „ „„ ^ ^, _ , » . ., The form of order is given in Schedule H. 20, to the Rules oi April, 1880- 5. How Renewal Made. The writ shall in such case be renewed by being marked with a seal bearing the date of the day, month, and year of such renewal ; such seal 1006 Writ of Summons. to be provided aad kept for that purpose at the proper office, and to be impressed npon the writ by the proper officer, upon delivery to him by the plaintiff or his solicitor of a memorandum in [the proper] form : (13.) If the original writ has been lost, it cannot be renewed by the seal being impressed on a verified copy : {Davies v Garland, L. Rep. 1 Q. B. Div. 250 ; 33 L. T. Rep. N. S. 727 ; 45 L. J. 137, Q. B.) A form of prceeipe is given in Schedule E. 19, to the Rules of April, 1880. 6. ElTECT. A writ of summons so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commence- ment of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons : (O. VUI., r. 1.) If leave to renew is granted during the currency of the original writ, but the seal is not impressed before the currency has expired, it cannot be then impressed. Where a writ was issued within six years after accrual of a debt, but never served, and the plaintiff took out an administration summons for the same debt within six months and when the action was barred unless saved by the writ, it was held that the writ only saved the bar in the divisionjout of which it was issued, and that the administration suit was barred : {Manby v. Manhy, L. Rep. 3 Oh. Div. 101.) 7. Evidence of Renewal. The production of a writ of summons purporting to be marked with the seal of the court, showing the same to have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the first date of such renewed writ for aU purposes : (O. VIII., r. 2.) XTTT. AMENDMENT. The court or judge may, at any stage of the proceedings, allow the plaintiff to amend the writ of summons jn such manner and on such terms as may seem just : (O. XXVIL, r. 11, Feb., 1876.) An action may, by amendment of the writ and statement of claim, be turned into an information and action, the Attomey-G-eneral's sanction being obtained : (Caldwell v. Paqham Ha/rbour Commarvu, L. Rep. 2 Ch. Div. 221.) . Where statement of claim has been delivered, it is unnecessary to amend the indorsement of the writ: (Large v. Large, W. N. 1877 p. 198.) An amended writ must in all cases be served in the same way as an original writ would be nnder similar circumstances: {The Cassiopeia, 40 L. T. Rep. N. S. 869 ; 48 L. J. 39, P. D. & A. ; 27 W. R. 703.) Before defence delivered, amendment may be ordered on motion or petition of course : (Dan. Forms, 3rd edit., 128.) After defence delivered, amendment may be ordered on motion or petition of course, if all parties consent, otherwise on summons, except in case of mere clerical errors, which may be ordered to be amended on motion or petition of course : (Dan. Forms, 3rd edit., 128.) Where leave has been given to amend, the amendment wiU be made on production of the brief in the case indorsed by counsel, and initialled by the registrar, without the order being drawn up : (Mathias v. Mathias. W. N. 1876, p. 214.) The amen^ent must be made within fourteen days from the date of the order unless a further time is allowed : (Seton, 1519.) Writ of Summons, 1007 Where notice of trial, or for a receiver or injunction, has been given, the order to amend should be obtained on summons asking that the amendment may be without prejudice, otherwise the notice wiD be waived: (Dan. Forms, 3rd edit. 128.) As to service of amended writ, see post, XIV., 1 (b) 8. XIV. SERVICE. 1. Within the Jukisdiction. (a) When Unnecessary. No service of writ shall be required when the defendant, by his solicitor, agrees to accept service, and enters an appearance : (O. IX., r. 1.) (6). How Effected. (1) In Ordinary Cases. Where service is required the writ shall, wherever it is practicable, be served in the manner iu which personal service [was] made [when the new procedure came into operation] : (O. IX., r. 2.) Service must, if practicable, be personal. Service is effected by delivering a copy, and showing the defendant the original writ if he requires to see it : (Oh. Arch. Pr. 13th edit. 231.) An amended writ must in all cases be served in the same way as an original writ would be under similar circumstances : {The Cassiopeia, 40 L. T. Rep. N. S. 869 ; 48 L. J. 39, P. D. & A. ; 27 W. R. 703.) (2) On Wife where Defendant with Husband. When husband and wife are both defendants to the action, service on the husband shall be deemed good service on the wife, but the court or a judgfe may order that the wife shall be served with or without service on the husband : (O. EX., r. 3.) (3) On Infant. When an infant is a defendant to the action, service on Ids or her father or guardian, or, if none, then upon the person with whom the infant resides, or under whose care he or she is, shall, unless the court or judge otherwise orders, be deemed good service on the infant, provided that the court or judge may order that service made, or to be made, on the infant shall be deemed good service : (O. IX., r. 4.) (4) On Lunatic so Pound. When a lunatic .... is a defendant to the action, service on the committee of the lunatic .... shall, unless the court or judge otherwise orders, be deemed good service on such defendant : (O. IX., r. 5.) Service on the hinatic asylum keeper has been ordered : {Thorn v. Smith, W. N. 1879, p. 81.) (5) On Lunatics Not so Pound. When a person of unsound mind not so found by inquisition is a defen- dant to the action, service .... on the person with whom the person of unsound mind resides, or under whose care he or she is, shall, unless the court or judge otherwise orders, be deemed good service on such defen- dant : (O. IX., r. 6.) (6) On Partnership Firm. Where partners are sued in the name of their firm, the writ shall be served either upon any one or more of the partners, or at the principal place within the jurisdiction of the business of the partnership upon any person having at the time of service the control or management of the partnership business there; and, subject to the rules hereinafter con- tained, such service shall be deemed good service upon the firm : (0. IX., 6.) 1008 '.- ■ Writ of Summons. WSjerfe; ((ae- person carrying on business in the name of a firm appa- reiitlyieoosisfing of more than one person, shall be sued in the firm name, the. Ty^rit may he served at the principal place within the jurisdiction of the business so carried on, upon any person having at the time of service the control or .majiagement of the business there ; and subject to any of the rules of the Supreme Court such service shall be deemed good service on the person so sued : (O. IX., r. 6a, Rules, June, 1876.) If service is effected on the manager, it is immateirial that the defen- dant is out of the jurisdiction : {O'Neill v. Clason, 46 L. J. 191, Q. B.) (7) On Corporations, &c., under Statutes as to Service. Whenever, by any statute, provision is made for service of any writ of summons, bill, petition, or other process, upon any corporation, or upon any hundred, or the inhabitants of any place, or any society or fellowship, or any body or number of persons, whether corporate or otherwise, every writ of summons may be served in the manner so provided : (O. IX., r. 7.) Corporation Aggregdte. Every .... writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation : (15 & 16 Yict. c. 76, s. 160 : ', Hwnd/red. Every writ issued against the inhabitants of a hundred, or other like district, may be served on the high constable thereof, or any one of the high constables thereof : (15 & 16 Vict. c. 76, s. 16.) In every action to be brought .... against any hundred, or other like district of which there is no high constable, the process for appear- ance in the action, and the notice required in the case of the claim, shaU be served upon the chief constable, or other acting chief officer of police for the time being, of the county in which such hundred or district is situate : (32 & 33 Vict. c. 47, s. 5.) District, Not being Biindjred. Every .... writ issued against the inhabitants of any county of any city or town, or the inhabitants of any franchise, liberty, city, town, or .place, not being part of a hundred or other like district, on some peace officer thereof : (15 & 16 Vict. c. 76, s. 16.) Limited Com/party. Any summons, notice, order, or other document required to be served upon the company may be served by leaving the same, or sending it through the post in a prepaid letter addressed to the company at the registered office : (25 & 26 Vict. c. 89, s. 62.) An^ document to be served by post on the company shall be posted in such time as to admit of its being delivered in the due course of delivery vrithin the period (if any) prescribed for the service thereof; and in proving service of such document it shall be sufficient to prove that such document was properly directed, and that it was put as a prepaid letter into the post-office : {Id., s. 63.) Trading Compam,y. In all cases wherein it may be necessary for any person to serve any .... writ upon [any company under the Act] service thereof .... on the clerk, or by leaving the same at the head office for the time being .... or in case such clerk of the said office shall not be found or known, then service thereof on any agent or officer employed by the company, or by leaving the same at the usual place of abode of such agent or officer. Writ of Summons. 10§-9 shall be deemed good and sufficient service on the compaijy. ; ;(7JWiIt 4 &lVict.o. 73, s. 26.) ■..••.;;.■,•., Clerk means chief clerk, not a mere clerk employed under a secretwy) or other clerk : [Walton v. Universal Salvage Company, 16 M. & W. 438, cited Day's 0. L. P. Acts.) Railway and other Public Companies. Any writ .... requiring to be served upon the company, may be served by the same being left at, or transmitted through the post directed to the principal office of the company, or one of their principal offices, where there shall be more than one, or being given personally to the secretary, or in case there be no secretary, then by being given to any one director of the company : (8 & 9 Vict. c. 16, s. 135 ; 8 & 9 Vict. c. 20, s. 138.) See Lawrenson v. Dublin Metropolitan Junction Railway Company, 87 L. T. Rep. N. S. 32. Promoters. Any writ .... requiring to be served upon the promoters of [an! undertaking may be served by the same being left at, or transmitted through the post directed to the principal office of the promoters of the undertaking, or one of the principal offices, when there shall be more than one, or being given or transmitted through the post directed to the secretary, or in case there be no secretary, the solicitor of the said pro- moter : (8 & 9 Vict. c. 18, s. 134.) (8) On New Defendant. All parties whose names are .... added as defendants shall be served with a summons or notice [in lieu of service] in the same manner as original defendants are served, or in such manner as may be prescribed by any special order, and the proceedings as against them shall be deemed to have begun only on the service of such summons or notice : (O. XVI., r. 13 ; and see r. 15.) Where a defendant is added, unless otherwise ordered by the court or judge, the plaintiff shall file an amended copy of and sue out a writ of summons, and serve such new defendant with such writ or notice in lieu of service thereof in the same manner as original defendants are served (O. XVI., r. 15) ; and an amended writ must be served in the same manner as if it had been an original writ: {The Cassiopeia, L. Rep. 4 P. Div. 183.) Where an order is obtained, adding a new party in place of one who has married, died, &c., it seems necessary only to serve the order : (see O. L. r. 5 ; Paeties, VI„ 2 (6) (2).) 2. Out op the Jubisdiction. (a) Where Allowed. Service out of the jurisdiction of a writ of suminons or notice of a writ of summons may be allowed by the court or a judge whenever the whole or any part of the subject matter of the action is land or stock, or other property situate within the jurisdiction, or any act, deed, will, or thing affecting such land, stock, or property, and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled, or other- wise affected in any such action, or for the breach whereof damages or other relief are or is demanded ia such action, was made or entered into within the jurisdiction, and whenever there has been a breach within the jurisdiction of any contract wherever made, and whenever,any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be doneflr is situate within the jurisdiction : (O. XL, r. 1.) T T T 1010 Writ of Summons. Seotlaad and Ireland are included in the rule as to service out of the jurisdiction : [Swamsea Shipping Convptmy V. Bunean, L. Rep. 1 Q. B. Div. 644; 45 L. J. 638, Q. B. ; Green r. Browning, W. N. 1876, p. 190; 34 L. T. Bep. N. S. 760 ; Catling v. ErigUsh, &c., Company, W. N. 1877, p. 276.) "Within the jurisdiction" means within the territorial jurisdiction {Be Smith, L. Bep. 1 P. Div. 300 ; 45 L. J. 92, Adm. ; 35 L. T. Bep. N. S. 380 ; The Viva/r, L. Bep. 2 P. Div. 29; 35 L. T. Bep. II. S. 782), which does not extend beyond low -water mark : {Harris v. Owners of the Framoonia, L. Bep. 2 C. P. Div. 173.) The rule extends both to individuals and foreign corporations : {Scott v. Boyal Wax Candle Company, L. Bep. 1 Q. B. Div. 404.) Where one contract was made out of the jurisdiction and another con- tract was made within the jurisdiction, which constituted a breach within the jurisdiction of the first contract, service on defendants in Scotland was allowed : {Karris v. Fleming, L. Bep. 13 Ch. Div. 208 ; 49 L. J. 32, Oh. ; 28 W. R. 389.) Service on the ambassador of a foreign sovereign will not be allowed : {Stewart Y. Bank of England, W. N., 1876, p. 263.) Notice of the writ, and not the writ or a copy, must be served on a foreigner: {Westman v. Aktiebolaget Fkmans MekanisTca Snickarefdbrik, L. Bep. lEx. Div. 237 ; 45 L. J. 327, Ex ; Be Howard, Padley v. Caaiya- hausen, L. Bep. 10 Oh. Div. 550 ; 48 L. J. 364, Oh. ; 27 W. E. 217.) A British subject must be served with the writ in the ordinary way : {Bacon v. Turner, L. Bep. 3 Ch. Div. 275.) The question whether leave ought to be given to issue the writ is for the judge at chambers, and cannot be raised by statement of defence : {Preston v. Lamont, L. Bep. 1 Ex. Div. 361 ; 45 L. J. 797, Ex.) A statement in the nature of slander of title, made out of the jurisdic- tion concerning property within the jurisdiction, will not entitle the plaintiff to an order : {Casey v. Arnott, L. Bep. 2 0. P. Div. 24 ; 46 L. J. 3 C. P.) (b) When Application Made. Application should be made before the writ is issued : {Ghreat AustraUam, Cfold Mining Comparvy v. Ma/rtvn, L. Bep. 5 Ch. Div. 16.) (c) How Application Made. The application should be made at chambers : {Catling v. English, &c. Co., W. N . 1877, p. 275 ; but see Be British Imperial Corporation, L. Bep. 5 Oh. Div. 749 ; Bandall v. Camphell, W. N. 1877, p. 201.) Leave to serve and leave to issue the writ must be sought for by one application. The application is generally made by leaving at chambers the unsealed vrrit, and an office copy of the affidavit mentioned post {d) : (Dan. Forms, 3rd edit. 98.) No summons is issued : {Id.) {d) Evidence. Every application for an order for leave to serve such writ or notice on a defendant out of the jurisdiction shall be supported by evidence, by affidavit, or otherwise, showing in what place or country such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the appUcation is made : (0.XI.,r.3.) It is not sufficient for the affidavit to follow the indorsement. It must specifically allege a cause of action within the jurisdiction: {Great Australian Gold Mi/ni/ng Compa/ny v. Martin, sup.) The evidence will not be allowed to be controverted, or the merits of the case gone into : {Great Australian Gold Mining Company v. Martin, sitp.) Writ of SiMnmons. 1011 To obtain leave to serve a defendant in Scotland, it is not enough to shew the amount of the claim, that the contract was made and the breach of it occurred in London; that the plaintiff and also the agent of the defendant (who signed the contract) reside in London, that all the pkintLff's witnesses reside in London, and that it would be more convenient and less expensive to try the action in London than in Scotland. The affidavit should go on to show in what respect, regard being had to the facilities for trying the cause in the neighbourhood of the defendant's residence, it would be cheaper and more convenient to try in London : {Vfoods v. M'lrmes, L. Rep. 4 O.P. Div. 67.) An affidavit (wherever an affidavit is necessary) shall be thus intituled : " In the matter of the Judicature Acts of 1873 and 1875." " In the matter of an intended action between A. B., plaintiffs, and O. D. and others, defendants :" (Directions of Master of the RoUs adopted by all the judges of the Chancery Division.) For the rest of the fojm to be used, see Dan. Forms, 3rd ed., 142-4. [In actions on contract] no such leave is to be granted without an affidavit stating the particulars necessary for enabling the judge to exercise his discretion in manner [mentioned ^osi, (e)], and all such other particiilars (if any) as he may require to be shown : (O. XI., r. 1a., June, 1876.) And an affidavit seems to be always necessary : ITo-ung v. Brassey, L. Eep. 1 Ch. Div. 277.) (e) How Discretion exercised in Actions on Contract. Whenever any action is brought in respect of any contract which is sought to be enforced or rescinded, dissolved, annulled, or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, when such contract was made or entered into within the jurisdiction, or whenever there has been a breach within the jurisdiction of any contract wherever made, the judge, in exercising his discretion as to granting leave to serve such writ or notice on a defendant out of the jurisdiction, shall have regard to the amount or value of the property in dispute or sought to be recovered, and to the existence in the place of residence of the defendant, if resident in Scotland or Ireland, of a local court of limited jurisdiction, having jurisdiction in the matter in question, and to the comparative cost and convenience of proceeding in England or in the place of such defendant's residence : (O. XL, r. 1a, June, 1876.) Leave was refused to serve the writ in an action to administer the trusts of a settlement of Scotch property; where the trustees resided in Scotland, although the plaintiff resided in England : [Cresswell v. Parher, L. Rep. 11 Ch. Div. 601 j 40 L. T. Rep. N. S. 599 ; 27 "W. R. 897.) Where a charter-party had been entered into in Scotland between persons both resident there, the court refused to direct service of a writ in an action for a breach of the charter-party, on the ground that the plaintiff had a complete remedy in the Scotch court : {Ex parte McPhail, L. Rep. 12 Ch. Div. 632 ; 41 L. T. Rep. N. S. 338 ; 48 L. J. 415, Ch. ; 27W.R. 535.) And leave was refused where the plaintiff, temporarily residing in England, commenced an action for dissolution of a partnership, the business of which was principally carried on in Ireland : {Tottenham v. Barry, L. Rep. 12 Ch. Div. 797.) Where, in an action by first mortgagees of a British ship and her freight against a second mortgagee, the mortgagees and puisne incum- brancers claiming an account, the plaintiffs, the first mortgagees, discovered part of the mortgaged property in the hands of R. and Co., 1012 Writ of Summons. a firm of Antwept merchants, who claimed to retain it as against a debt due to them from the second mortgagee, and the plaintiffs thereupon obtained an order for leave to amend, by adding B. and Co. as defendants, and for leave to serve them with notice of the writ, the Court of Appeal discharged the order for service of notice out of the jurisdiction : McSte^ims v. Ca/rnegie, 42 L. T. Hep. N. S. 309 ; 28 W. R. 385.) (/) Order. . ^. „ Any order giving leave to effect such service or ^ve such notice shall limit a time after such service or notice within which such defendant is to enter an appearance, such time to depend on the place or country where or withm which the writ is to be served or the notice given : (O. XI., r. 4) The order is put upon the writ, and a copy of the order is put on the copy filed : (Dan. Form, 3rd edit. 98.) The form of order is given Sched. H. 18 to the Rules of April, 1880. . - The order will provide, if necessary, for service of interrogatories, and for an injunction : (Young v. Brassey, L. Bep. 1 Oh. Div. 277.) (g) Bow Writ Served or Notice Given. Notice in lieu of service shall be given in the manner in which writs of summons are served : (0. XI., r. 5.) The writ will be served in the same manner as one within the juris- diction. The usual addresses must be indorsed : (see twp., YIII., 2.) (Ji) How Order Set Aside. If the defendant, after service, think the order was wrongly made, he ought to enter a conditional appearance (see ApfeasAnce) ; and then move to set aside the order. The objection cannot be taken by the statement of defence : {Preston v. Lamont, L. Bep. 1 Ex. Div. 361.)- 3. Stjbstitttted Seevice. (a) In Actions for Recovery of Lcmd. Service of a writ of summons in an action to recover land may, in ease of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property : (O. IX., r. 8.) A foreclosure action is not within this rule: (Tawell v. Slate Compcmy, W. N. 1876, p. 219.) (6) By Order in other Cases. >■ If it be made to appear to the court or to a judge that the plaintiff is from any cause unable to effect prompt personal service, the court or judge may make such order for substituted or other service, or for the substitution of notice for service, as may seem just : (O. IX., r. 2.) Every application to the court or a judge under Order IX., r. 2, for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon •which the application is made : (O. X.) The affidavit must state : The issuing of the writ ; that no appearance has been entered ; that searches nave been made in the cause book in London, or the district registry, or both, according to circumstances : (Dan. Forms 3rd edit. 140.). The form of order is given in Schedule H. 19 to the Rules of April 1880. *^ ' Substituted service can only be ordered to be made on some person or persons, or body corporate, on whom there could be oripnal service : {Sloman v. Government of New Zealand, L. Rep, 1 0. P. Div. 563.) Writ of Summons. 1013 It cannot be made on a colonial or foreign government : (Id. ; Stewart V. Bcmk of England, W. N. 1876, p. 263.) The order wul be made whenever the defendant has absconded, and his address cannot be ascertained : {Cook v. B&y, L. Rep. 2 Gh. Div. 218 ; Crane t. JulUon, Id. 220; Bank of Whitehaven v. Thompson, W. N. 1877, p. 46.) Leave for substituted service of writ on a defendant should not be given unless there is a probability of the defendant being thereby reached : (Wolverhamipton and Staffordshire Banking Company v. Bond, 70 L. T. ^ijO.) It is generally ordered to be effected by leaving a copy of the writ at the defendant's last known residence or club, and by inserting an adver- "tisement in the Gazette and one or more newspapers so framed as to give notice that in default of appearance the plaintiff wiU move for judgment at such time and place as may be proper : {Id. ; Rafael v. Ongley, 34 L. T. Bep. N. S. 124 ; Kgmilton v. Bavies, W. N. 1880, p. 82.) A notice in lieu of service will not be ordered to be given in ordinary cases where the defendant is within the jurisdiction : {Cook v. Bey, sttp.) The service, if effected according to the order, is equivalent for every purpose to personal service, so long as the order remains undischarged, and the fact that the defendant has not had notice of the proceedings, is not of itself sufficient ground for setting the order aside. If he proves a good defence on the merits as well, the court may let' him in to defend, and may impose terms: {Watt v. Barnett, L. Rep. 3 Q. B. Div. 863; 38 L. T. Bep. N. S. 903 ; 26 W. R. 400 ; 47 L. J. 329, Q. B.) XV. INDORSEMENT OF DATE OF SERVICE. The person serving a writ of summons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by defa^ilt ; and every affidavit of service of such writ shall mention the day on wliich such indorsement was made : (O. IX., r. 13.) The rule only applies in cases where the sernce is personal : {Bymond v. Croft, L. Rep. 3 Oh. Div. 512 ; 34 L. T. Rep. N. S. 786; 46 L. J. 601, Ch. ; 24 W. R. 842.) Where a notice in lieu of a writ is served out of the jurisdiction, the affidavit may either refer to the notice, a copy being annexed, or may state that the deponent " has personally served the defendant with a notice of the writ of summons in this action, which appeared to me to have been regularly issued out of the Chancery Division of the Honourable Court," and that " at the time of the service of such notice in manner aforesaid, memoranda were subscribed to the said: writ, and indorsements were made thereon, and on the said notice in the manner and form prescribed by the rules of the Supreme Court " : {Bustros v. Bustros, Ii. Bep. 14 Ch. Div. 849.) XVI. REGISTRATION. • [See Lis Pendens.] XVII. DISCLOSURE BY SOLICITORS, PLAESTTIFFS, AND PARTNERS. Every solicitor whose name shall be endorsed on any writ of summons shall, on demand in writing made by or on behalf of any defendant who has been served therewith or has ajipeared thereto, declare forthwith whether such writ has been issued by him or with his authority or privity ; vv V 1014 Writ of Summons, and if such solicitor shall declare that the writ was not issued by him or with his authority or privity, all proceedings upon the same shall' be stayed, and no further proceedings shall be taken wiereupon without leave of the court or a judge : (O. VII., r. 1.) "When a writ is sued out by partners in the name of their firm, the plaintiffs or their solicitors shall, on demand in writing by or on behalf of any drfendamt, declare forthwith the names and places of residence of all the persons constituting the firm. And if the plaintiffs or their solicitors shall fail to comply with such demand, aU proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the court or a judge may direct. Aid when the names of the partners are so declared, the action shall proceed in the same manner and the same consequences in aU respects shall foUow as if they had been named as the plaintiffs in the writ. But all proceedings shall, nevertheless, continue in the name of the firm : (O. VII., r. 2.) Any two or more persons claiming or being liable as co-partners may sue or be sued in the name of their respective firms, if any ; and any party to an action may in such case apply by summons to a judge for a statement of the names of the persons who are co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge may direct : (O. XVI., r. 10.) [And see 'Discotbet.] XVin. CONCURRENT WRITS. The plaintiff in any action may, at the time of or at any time during twelve months after the issuing of the original writ of summons, issue one or more concurrent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a seal bearing the word " concurrent, and the date of issuing the concurrent writ ; and such seal shall be impressed upon the writ by the proper officer : Provided always, that such concurrent writ or wiits shall only be in force for the period during which ike original writ in such action shall be in force : (O. VI.,r. I.) A writ for service withlii the jurisdiction may be issued and marked as a concurrent writ with one for service, or whereof notice in lieu of service is to be given, out of the jurisdiction ; and a writ for service, or whereof notice in lieu of service is to be given, out of the jurisdiction, may be issued and marked as a concurrent writ with one for service within the jurisdic- tion: (O. VI., r. 2.) mkkP^ ^O'Ciy: mm: ^k^A^ ?w^^^^. m h-A »'WC ^^jWV^^w«^wys^> '1«|^gPB5P^^^s*^^' ^W^WWtv->.g_W.