MARSHALL! KD 6939 .T68 OlornfU Katu ^t\\nai iltbrary iiarat}aU Iquttg (Hallertton mt of IE. ~S. MntBit&il, 5I.ffi. 1- 1094 L UNIVERSITY LIBRARY 924 085 504 003 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085504003 THE MODERN ^ ■ PEACTIOE m CHANCEEY, CONTAINING ALt THE FROM THE TRUSTEe'rELIEF ACT (10 & 11 VICT. C. 96) TO ' THE GENERAL ORdIeR OF 24.TH DEC. 1852 : EXPLANATORY NOTES, AND ALL THE REPORTED CASES TO 1853. BY SAMUEL SIMPSON TOULMIN, Esq., OF gray's inn, barrister at law. LONDON : S. SWEET, 1, CHANCERY LANE, 1863. ^f^/ LONDON: phiiited by c. kowortb and sons, bell tabd, tbufle bar. PREFACE. The alterations which have from time to time been made in the Practice of the Court of Chancery during the last few years, have been both extensive and importarit; and the main object of the present work is to show at one glance all the" recent alterations affecting any pdrticuMr head of practice. With this view, the modern enactments and regulations now in force will be found classified under separate heads, and as nearly as practicable according to the proceedings in a suit. In order to make the work more extensively useful, it was thought desirable that it should not be confined to the Statutes and Orders of 1862, and the Author has taken for its commencement the Trustee Relief Act of 1847, not only on account of the great practical utility of the Act (a), but also on account of its connection with the more recent alterations relating to the summary remedies by and against trustees and executors. The work contains all the sub- sequent Statutes arid Orders now in force relating to the Practice of the Court, and all the reported decisions down to the year 1853. It should be stated, however, that the Winding-up Acts are not included, inasmuch as they were not considered as coming within the scape of a work treat- ing only of the ordinary Practice of the Court. For the convenience of reference and citation, the sec- tions of Statutes and the Orders in the text (except formal words of enactment, &c.) are given verbatim, and may (o) See the Chancery Commissioners' Report of the 27th January, 1852. a2 iV • PREFACE. readily be found with the assistance of the Tables of Statutes and Orders which follow. In some few instances, with a view to save useless repetition, in cases where a section or an Order related to more than one subject, and could be conveniently divided, so much of it only has been inserted under each head as was applicable to the par- ticular subject; but whenever such a division has been made, it is pointed out by the word " Extrabi' in the side note. The side note to each paragraph gives the title and section of the Act, or the date and number of the Order of which it is a copy. It may be added, that the marginal abstracts of the Statutes are those of the Author and not those which are found in the printed copies. 1, New SaoARE, Lincoln's Inn, , bth February, 1853. TABLE OF CONTENTS. CLASS I. The Jddges of the Court. PAGE Sect. 1. The Lord Chancellor, the Lords Justices of the Court of Appeal, and their Officers . . 1 2. The Ma^er of the Rolls and the Vice-Chancel- ' lors, and their Clerks and Oifficers . . 7 CLASS II. The Officers of the Cotjrt. Sect. 1. The Officers in general .. .. . .» .. 15 2. The Masters in Ordinary and their Clerks . . 18 3. Conveyancing Counsel, Accountants, Merchants, Engineers, Actuaries, and other Scientific Persons . . . .^ . . . . . . 22 4. The Accountant-General and the Clerks in his Office 24 5. The Registrars and their Clerks . . . . 25 6. The Master of Reports and Entries .. .. 26 7. The Examiners 29 8. The Clerk of Inrolments and the Clerks of Re- cords and Writs . . . . . . . . ib. 9. The Taxing Masters and their Clerks . . . . 30 10. The Clerk of the Petty Bag ib. CLASS in. Jurisdiction. Sect. 1. Foreclosure Suits .. .. .. .. 31 2. Declaratory and partial Relief . . . . . . 32 3. Accounts . . . . . . 34 4. Sales of Real Estate 36 5. Allowance to Parties of Part of the Property in Litigation . . . . . . . . . . 38 6. Questions of Law . . . . . . . . 39 CLASS IV. Parties to Suits . . . . . . . . . . . . 40 VI TABLE OF CONTENTS. CLASS V. Bills and Claims. PAGE Sect. 1. Form of Bills, and Priming and Filing Bills and Claims 46 2. Service of Bills and Claims .. .. .- 51a 3. Amended Bills and Claims, and Service thereof. . 55 CLASS VI. Interrogatories for the Examination of Defendants TO Bills and Informations . . . . . . 57 CLASS VIL Pleas, Answers and Demurrers, and Exceptions for Insufficiency of Answers. Sect. 1. Frame of Ansvyers ,. .. .. .. 60 2. Time for putting in Plea, Answer or Demurrer, and Mode of taking same .. .. .. 61 3. Sufficiency of Answers, and Exceptions for In- sufficiency . . . . . . . . . . 63 CLASS VIII. Motion for Decree . . . . . . . . . . 68 CLASS IX. Production of Documents . . . . . . . . 70 CLASS X. Interrogatories for the Examination of the Plain- tiff . . ,. . . . . . . . . . 72 CLASS XI. Dismissal of Bill for want of Prosecution . . , . 74 CLASS XII. Joining Issue . . . . . . , . . . . , 75 CLASS XIII. Evidence. Sect. I. Mode of taking Evidence, and Time allowed for that purpose . . . . . . . . 75 Z. Affidavits generally .. .. .. .. §6 3. Other Matters relating to Evidence . . , . if,. TABLE OF CONTENTS. Vll CLASS XIV. FAGE Setting DOWN Causes, &c. 88 CLASS XV, Decrees and Orders. Sect. 1. Form, drawing up and inrolling . . • • 90 2. Other Matters relating to Decrees and Orders. . 95 CLASS XVI. Rehearings and Appeals . . . . . . • * 97 CLASS XVII. Proceedings in the Judges' Chambers . . . . . . 98 CLASS XVIIL Proceedings in the Masters' Offices . . . . • • 121 CLASS XIX. Injunction . . . . . . . . . • • • • • 1^1 CLASS XX. Receiver 134 CLASS XXI. Revivor and Supplement . . . . . • • • 135 CLASS XXII. Exceptions for Scandal . . . . • • • • . . 141 CLASS XXIII. Election to proceed at Law or in Equity . . . . 143 CLASS XXIV. Claims 14* CLASS XXV. Special Cases 178 TABLE OF CONTENTS. CLASS XXVI. SuMUARY Proceedings by and against Executors, Adminis- trators AND Trustees. PAGE Sect. 1. The Legacy Duty Acts (36 Geo. 3, c. 52, and 37 Geo. 3,0. 135) 186 2. The Trustees' Relief Acts (10 & 11 Vict. c. 96, and 12 & 13 Vict. c.;r4) 189 3. Sir George Turner's Act (13 & 14 Vict. c. 35) , 196 4. The Improvement of the Jurisdiction of Equity Act (15 & 16 Vict, c. 86) 202 CLASS XXVII. The Trustee Acts, 1850 and 1852 205 CLASS XXVIII. Office Copies and other Copies. . .. .. .. 213' CLASS XXIX. Time 217 CLASS XXX. Costs 218 CLASS XXX!l. Fees and Stamps. Sect. 1. Fees and Stamps in general . . . . . . 220 2. Fees in the Office of the Accountant-General . . 225 3. Fees for Affidavits ~ . . . . . . . . 227 4. Fees to Conveyancing Counsel, Accountants, Merchants, Engineers, Actuaries, and other Scientific Persons . . . . . . . . 228 5. Fees to the Doorkeeper of the Court of Chancery (abolished) .. .. .. .. .. iJ. 6. Fees at the Entering Seats . . . . , . 229 7. Fees in the Examiners' Office . . . . . . ib. 8. Fees in the Judges' Chambers . . . . . . 230 9. Fees in the Masters' Offices . . . . . . 231 10. Fees in the Record and Writ Clerks' Office . . 233 11. Fees in the Registrars' Office 236 12. Fees in the Report Office . . . . . , 240 13. Fees in the Lord Chancellor's Principal Secre- tary's Office . . . . . . . 241 14. Fees in the Office of the Secretary at the Rolls . 242 15. Fees of Solicitors .. .. .. .. 243- 16. Fees in the Taxing Masters' OflSce . . . . 246 Addenda et Corrigenda . . . . . . . . 247 250 TABLE OF STATUTES. PAGE 5 Eliz. c 9, 9. 12 82, D. 13Ch.2 30,u. 12Geo. I, c. 32 28, n. 36 Geo. 3, c. 52, s. 32 186 37 Geo. 3, c. 135 ...*..... 187, n. S3 Geo. 3, c. 24 9, n. 55Geo.3,c.64(L.&P.).. 7, n. 6 Geo. 4, c. 16, B. 67 138, n. 91 87, n, '6 Geo. 4, c. 84, ss. 2 & 5 . . 7, n. 7 Geo. 4, c, 57. s. 26 138, n. 1 Will. 4, c. 60 206, o. s. 12 205, n., 211, a. 14 210,11. 24 96, u. 2 & 3 Will. 4, u. 33 54, u. 2&3 WUI. 4,c. 116,». 1 .. 7, ii. 3&4 Will. 4, u. 49, s. 1 .. 81, u. 3& 4 Will. 4, u. 82, 8. 1 .. 81, u. 3 & 4 Will. 4, c. 94. 101, n., 232, n. s. 10 90, n., 214, n. 13 12n., 62,n., 125, 127, n. 14&15 12, n., 62, D., 125 27 79, n. 4 & 5 Will. 4. c. 82, s. 1 & 2 54, n. l&2Vict. C.77 81, n. 1 &2 Vict. c. 110 32, n. s. 53 138, n. 2&3 Viot.c. 11,8. 4&7.. 184, n. 5 Vict. c. 5 9,n. ». 8, 34 to 37 & 50 7, d. 5&6Vict, e.l03 18, n. 68c evict, c. 122, 8.21 95, n. 7,& 8 Vict. c. 96, 8, 16 138, n. 8&9Vict.c. 15 21, n. 9 & 10 Vict. 0. 95, 8. 22 . . 118, n. 10 & 11 Vict. c. 60, 8.1... . 19, n- 10 & 11 Vict. c. 96 212, n. 6. 1 189 PAGE 10 & 11 Vict. c. 96— continued. ».2 97, 197 4 193 lO&U Vict. c. 97, a. 1 18, 30,n. 2 30, n. 5 20, n. 6 30,D. 11 & 12 Vict. t. 10, ». 1 &2 30, n. 11 & 12 Vict. c. 94 30 12 & 13 Vict. c. 74, a. 1 . . 189, u., 194 12 & 13 Vict; 0. 106, S.67 95, n. 73 95 157 138 235 82, n., 86 / 276 86,n. 12 & 13 Vict. c. 109 30 13 & 14 Vict. t. 35. 8.1 178 2,to6 179 7 to 9 180 10 181,213 11 to 13 181 14 182 15& 16 183 17& 18 184 19 196 20&21 199 22&23 200 24& 25 201 26 11,62, n., 101, n. 27 .,63, 124,n.,127, n., 141 28 81, n. 29 10 30 & 31 .... 63, D., 184, n. 32 184 33 97, 183, n., 202 34 63, D., 178, n. 35 63, n., 124, n. Schedule 197 13 & 14 Vict. c. 50, 3. 49.... 96 13 & 14 Vict. 0.60, s. 2 205, n. TABLE OP STATUTES. PAGE 13 & 14 Vict. 0. 60— continued. B. 23 206,n. 37 205 38 206 39 & 40 207 41 &42 208 43 207, n., 208 44 209 48 &50 210 51 &53 211 58 205, n. 14 & 15 Vict. c. 4, ». 1 7 2&3 8 4&5 7,n. 6 ., 7, D., 8 14 & 15 Viet. c. 83, B.1 1 2 6 3 to 6 2 7 2,n. 8 3, ll,39,n,, 183,n.,248 9& 10 3 11 3,248 12&13 4 14 4, 11 15 4 17 l,n. 18 7,n. 19 ...... 1, n., 6, n., 7, d. 20 l,n. 21 25 22&23 25,n. 14 & 15 Vict. c. 99, s. 2 87 15 & 16 Vict. 0. 3, s. 1 139, 140, n. 3 140 15 & 16 Vict. c. 55 205, n. s. 13 212 15 & 16 Vict. c. 76, ». 210 132,11. 211 132 226 133 15 & 16 Vict. c. 80, s. 1 18,121 2 18 3 19,124,n. 4 19 5&6 19, n. 7 to 9 99, 122, 123 10 20,121, n., 124 n 98 12 99 13 99,251 14& 15 100 16&17 12, 100, n. IB to 20 13, 100, u. 21 to 25 14, 100, II. 26 62,n., 70, n., 101, 187,11. PAGE 15 & 16 Vict. c. 80— continued. S.27 102,251 28 102 29 108 30 86,n., 104, 109 31 110 32 Ill 33 113 34 114 35 12, II., 62, u., 125, 127, n. 36 115,121,n. 37 99,124,n. 38 98, n., 125, n., 217, n., 222, n. 39 ....125. 126, n., 127, n. 40 22, 37, u. 41 23, 23o, 37, n. 42 ....236, 125, u., 129, n. 43 228 44&45 12,11. 52 -. 8 53 & 54 9 55&66 9,n; 57 9 58 2P 59 21 60 6 15 & 16 Vict. u. 86, s. 1 49,60,n. 2 50,n.,5Ia, 148, D., 151,11. 3 50, D., 51a, 151, n. 4 .. 49, 50, n., 52, 147 D. 5 50, a., 52, 151, n. 6 49, 50, n., 52, 59, n., 149, n., 234, n. 7 & 8 50, n., 55, 213 9 .. 60, n., 148,n., 151.n. 10 46 11 49 12 57, 250 13 61, 68, 11., 101, n. 14 60 15 62,n.. 68, 250 16 69 17 46, n., 63, n., 124, n., 127, n., 128, n., 218 18 ....70,101,n.,101a,n., 1016, n. 19 7Jl 20 ....71, 101, n.,101o, n., 1016, u. 21 62 22 62,86,n. 25 63 26 75 27 74 28 76 29 77 30 78 31 78,251 TABLE OF STATUTES. XI PACE IS & 16 Vict. c. 86— continued. s. 32 & 33 79 34 29,80 35 29,81 36 81,251 37 86 38 82, lOlo, n. 39 :... 83,251 40 84 41 85, 109, D. 42 40, 42, 106, n., 149, n., 150, n., 204, n., 249 43 43, 88, n. 44 43, 185, n., 250 45 .. 103, 105, 197, u., 202 46 lOl.n., 105, 197, n., 204 47 197, U..204 48 31, 146,n.,348 49 «, 55, n., 135 50 32, 182, n. 51 33, 44, 249, 260 52 .... 136, 139, n. 53 56, n., 137, 252 54 34,87 55 36 56 236,37 57 38 58 131 59 131,134 60 41,11. 61 ..39, 88, n., 183, u., 249 62 40 63 31,u., 41,D., 76,n.,217, n., 222, Q. 64 .. '31, n., 41, u., 217, D. 65 29, n. 66 41,n.,86,n. PAGE 15 & 16 Vict, c. 86 — continued. s. 67 31,n., 40, n.,217,D. Schedule 51b 15 & 16 Vict. c. 87, S.1 ]5,221,n. 2 16,221 3 17,221, n. 5 15,u.,213 6 222 7 224 8 224, n. 9 17, 224, n. 12 225 13 17 16 l,n.,7,n. 18 & 19 24, n 20 21 22 24, n. 23 6, 15, u., 29, 233, n., 241,0. 24 6,n.,7 27 15, .1., 16, n., 29, n., 114, D., 228, n. 28 29, Sis, n., 233, n. 29 26,30, 86,n. 34 & 35 27 36 15,n.,28 37 &38..;... 16,n.,221, n. 39 24, D., 225 40 30 41 25,89,98 42 21 43 21, D. 46 18,n., 20, n. 47 18 52 14 TABLE OF ORDERS, &c. PAGE 1699, June 17 95, u. 1828, April 3, Ord.7&9 64, n., 67, n. 10 64, n., 68, n. 41 89, n. 42' 89, n., 98, n. 49 120, u. 51&52 106, n. 53,54,55 127, n. 61&62 34, n. 69 87, n. 75 129, n. 1833, December 21, Ord.l9 64,u. 27 90,..., 110, n. 28 90, n. 30 114, n., 214, n. 31.. 213, n., 214, n., 215, n. 1837, May 5, Ord. 1 9, n., 49, n., 198, n. 15 10, 198, n., !99,n. 1839, May 9, Ord. 6 11, n. 1839,MaylO 51, n. 1841, August 26, Ord.ll, 12&15 80,n. 16& 17 57, n. 30 43, n. 45 91, n. • 46& 47 116,n. 1841, November 11, Ord.l 49, n. 5 11, n.; 199, n. 1842, April 11, Otd. 6 . 80, n., 116, n. 1842, August 5 ...... 10, n., 199, n. 1842, October 26, Ord. 17 & 20. .48,u., 61, n., 75, ... 22 218, u. 23 75,u. 1842, October 29 ..,..,.. 124, n. 1845, May 8, Ord. 5 218, n. 8 64,n. 10 217,n., 218,11. 11 218, n. PAGE 1845, May 8 — contimud. Ord. 12 42, n., 218, n. 13 218,n. 14 218, n. Art.2 64, ..., 217, n. 16,Art. 1 53, n. 6to9 141, u. vlO 61, u. 17 to 19 89, n. 21..64,n.,66,n.,143,n. 22..64,n.,65,n.,143,n. 23 to25..64, n., 65, n. 26 64, □., 66, n. 27 & 28 64, n. 29 to 31.. 64, u., 67, n. 41 218, n. 17&19 64,n.,141,u. 21 95,u.,98, u. 26 56, n. 33&34 53, n. 38 &39 141, n., 142, n. 40 141, n. 41 141, u., 142, n. 42 141,0. 46 to 49 89, u. 93 75, n., 77, ... 103 81, u. 107 79, n. 122 128, n., 219, n. 126 86, n. 127 86, u., 814, n. 1847, April 21 19, n. 1848, June 10, Ord.l 193 2 190, n., 193 3 193 4 194 5 to 7 192, n., 194 8.. 194 1 848, December 29 30 1849, Augusts \ 30 1849, December 10 218 1850, February 23. .66,n., 88, 89, n., 241 1850, March 1 66, n., 88, 89, n. TABtE OF ORDERS. Xlll FADE 1850, April 22, Ord.l 144 2 147, 158, n. 3&4 147 5 148 6 148, 156, n. 7& 8 149 9 150 10 51a, n., 151 11&12 151 13 152 14&15 153 16 154,169, n. 17 154 18 155 19 155, 167, n. 20to22 165 23&24 156, 168, n. 25&26 .*..... 156 27to29 157 30 97,157 31&32 157 33 233, 236, 243 34 144, u. 35 86,n.,144,n. Schedule A 158 to 166 B 166 to 168 C 169 to 177 1850, Junes, Ord.l 106, n., 125 2&3 126 4 127 5 101, n., 127, 166, n. 6to8 127 9 128 10 & 11 120, n., 130 12 21 13 ". 22 14 26 1850, June 6 152 1850, No»ember 2 (Exceptions, &c.) Ord.l ....- 11, n., 64, n., 141, u., 143, n., 217, u. 2 64, u. 3 64, n., 141, n., 143, n. 4 64, 141,217 5&6 64,141 7 143 8&9 65 10 65, 68, n. 11 65 12 65,88,0., 141 13 66, 141, n., 143 14... .« 66 16to20 66 21 67, u., 68 22 68 23to25 142 26 10 PAGE 1850, Nov.2 (Exceptions)— continued. Ord.27 10,198 28 234,238 1850, Movember 2 (Transfers, &c.) Ord.l 49,n. 3ta7 8, u. 1850, November 6 (Notice) .. 1 52, n. 1850, November 7 (Notice).. 152, n. 1850, November 16 (Notice). . 152, n. 1851, March 22.. 220,227,n.,229,n., 231, n., 233, n., 236, n., 238, 240, n. 1851, July 16 246, n. Ord.l 128 2&3 129 4 130 1851, October 29, Ord. 1 49, u., 199, u. 2 .... 9, 49, 198, u., 199, n. 3to7 8, n. 1852, May4 24,187, n., 188 1852, May 7 24, 193, n., 195 1852, July 27 ...27, 187, n. 1852,July28 24 1852, August 7 (under 15 & 16 Vict. c. 86.) Ord.l 49, 60, n, 2 & 3 50 4 50, n., 243 5 & 6 50, u., 55, 213, n. 7 to 11 50, n., 56 12 50, ... 13 51a, 148, n. 14 :... 47 15 57 16 58 17 59,250 18 59 19 6I,n.,62, 68, n. 20 69 21 60 22to27 69 28 76 29 74 30 219 31 78, 85, u. 32 to 35 83, 85, u. 36 to 37 85, 85, n. 38 85, 109, n. 39.... 77 40&41 ..42, 106, n., 149, n. 42 103, 202, n., 203 43 137 44 138 . 45 131 46 217 TABLE OF ORDERS. PAGE ] 852, August 7— continued. Ord.47 42, n. 48 42,n.,86,n. Schedule (A.) 244 (B.) 47 (C.) 58 (D.) 60 (E.) 203 1852, August 7 (Appeals, &c.) Ord.l 97 2 to 4 94 5 95 6 95,97 7 94,n., 97, u. 1 852, September 7 222 1852, October 16, Ord.l 103 2 104 3 104,202,u. 4. 101, n., 105, 202, n., 204, n. 5S£ 6 105, 202, n. 7 105, 203, n. 8 90, 100 9 115 lO&U 116 12 37, 118 13&14 118 15 119 16 106, 127, n. 17 , 106 18 106, 126, n. 19 to 21 107 22 108, 127, n. 23 108,207, n., 213, n. 24&25 108 26&27 109 28 , 100 29 &30.. 36,111, n., 112, n., 119 31&32 119 33&34 120 35 116 36 115, a., 117 37&38 117 39 115, u., 117, n. 40 117 41 115, n., 117 42 118 43 no, lUim, 118 44 111,112, n., 113, n. 45 Ill, 113,11. 46 112 47to49 114 50 110,u.,112, n.,114 61 115 52 110, 114, n. 53 114, u., 115, n., 119 54&56 120 66 120,130,n. PAGE 1852, October 16 — continued. Ord. 57 72, 101a, n. 58 100, 121,n., 126, n. 59 105, n.,217 60 .... 36, n., 90, n., 103, n. 61 36, n.. 86, n., 90; n., 103, n., 106,11., 134, n. Schedule (A.) 103 (B.) .. 104 90 116 11-2 (C.) .. (D.) .., (E.) .. 1852, October 23, Otd.l 221, n., 230 2 222, h., 238 3 222, n., 234 4 221 5 244 1852, October 25, Ord.l 214 Bulelto4 214 5 to 9 215 2 215 3 215, 217, n. 4 216,217 5 ... 216 6 . . . . 223, 225, u., 227, n., 228, n., 229, n., 231, n., 232, n., 233, n., 234, n., 236, n., 239, n., 240, n., 241, n., 242, n., 246, n., 247, n. 1 24,223,246 8 24, n. 9 24, n., 226 1st Schedule . . 227, 229, 23 1 , 234,239,240,241, 242, 246, 247, n. 2nd Schedule 226 1852, November 3 216 1852, November 10 213 1852, November 10 (Notice). .62, n., 70, n., 82. n., 101, 202, n. 1852, December 3, Ord. 1 to 3 g 224 1852, December 4, Ord. I 246 2 235,239 1852, December 10 24, 26 1852, December 16, Ord.l & 2 « 23 3 to 5 23o 1852, December 24, Ord.l 23a 2 & 3 23 6 1 852, December 24 (Intimation) . .219 TABLE OF CASES. Abb; V. Gilford Addis V. Campbell . . Ainsworth v. Alman V. Roe . . PAGE .. 38 70 .. 185 146 Airey O.Hall 70 Alcock V. Alcuck . . • . . 87 Anderson i>, Guicbard . . . . 150 Andrewes v, Walton . . 51 Angelo, Re SIS Anning v. Lavers .. .. 146 Anon. 1 Y. & C. Ex 75 14 Jnr. 518'.. 144, 145, 147,149 9 Hare, App. zi. .. 252 ib. xxvii. . . . . . . 252 Armstrong v.Storer.. .. 115 Atkinson t). Parker .. ..136 Attorney-General v. Cooper . . 45 ■ ». Corporation of Chester.. 107, 127 • V. Drapers' Com- pany . . 23b ti. Corporation of London . . 71 V. Gibson . . 107 ■ ■ ». The Ironmon- gers'Company 107 V, Lambe, . • 71 ; v. Shore . . 107 V. Thompson 70, 7 1 Austin V. Prince , . . . 79 Ay Iwyn v. Bray , . . . 45 B. Bainbrigge v. Blair Baker v. Anthony . . Bangley's Trast, Re Bankier v. Poole . . Barfield v. Rogers Barnes v. Wilson . . Bartholomew;* Will, Re Batard, Re . . Bateman v. Margerison. • Bather v. Kearsley ■ . Battersby's Trust, Re . . .. 139 34, 155 .. 191 54 .. 206 94 .. 191 187 .. 138 45 .. 207 PAGE Baugham, Ex parte . . 194 Baynes v. Ridge . . . . 61a Beadon v. King . . , . 71 Bear V.Smith 81 Beaumont O.James .. 152 Bedminster Charities, Re 128, 219 Bell V. Hornby .. .. 153 D.Hyde 53 Bennett, Ex parte . . . . 1 87 Beresford (Lady) 0. Drirer .. 71 Berwick (Mayor of ) s. Murray 70 Bevan v. Baynton , , . . 147 Bichford v, Chalker . . 150 Bickford v. Skews . . 52, 53 Biddulph V. Lord Camoys . . 64 Biggs, Re .. .. 187,190 Billing i). Webb .. .. 206 Blackborongh k. Ravenhill 102, 134 Blake, Re 206 Blake and Young, Re . . 80 Blann t>. Bell 248 Blenkinsopp v. BlenkinsOpp 53, 70 Bloye'a Trust, Re .. 189,195! Bold 1). Powell .. .. .. 148 Bond V. Duke of Newcastle 51 Bonfil t). Purchas .. .. 136 Booth (or Booth) v.Tomlinson 85,251 Boscbetti v. Power . . , ^ 70 Boutcher v. Branscombe 58 Bowen v. Price . , 250 Bowyerjj. Phillips , , 148 Boyd V. Mills 56 Brace v. Fou'lkes 149 153 Bradburne, Re 208 211 Bradshaw v. Bradshaw.. , , 79 Bromitt v. Moor . . . , , 147 Brook u. Biddall 148 155 V. Purton , , 101a Brooks V. Mills 147 Broom u. Broom . . , , 208 Brown V. Oakshott , , 71 53 38 Bruce v. Elwin . . .. Burbidge v. Robiuson 70 Bnrgess v. Sturges 146 150 Burnet v. Theobald , , 94 Burr v. Mason .. 209 XVI TABLE OF CASES. PACE Burt, Re 212 Bush V. Watkins .. ..81 Butchart t>. Dresser ■ ■ . . 70 Bute (Marquis of) v. Glamorgan- shire Canal Compan; .. 71 Butler's Trust, Re .. ..192 Cable V. Cooper , 77 Caddick's Settlement, Re . , 23 Callaghan o.Egan .. , 209 Cant, Ex parte 208 211 Carmichael v. Ogilby 147 151 Carrington v. Cantlllon.. .. 54 Carter u. De Brune . . . 54 V. Smith . . , , 165 Carwardine », Wishlade . . 64 151 Catling, .Re 197 Cator V. Reeves , . . 146 248 Cawthorne, Re .. 190 191 192 Chaffers v. Headlam . . 260 Chalk 1). Sanders . . 150 Chamberlain's Charity, Re ,. 23 Chamberlain ti. Thacker ■ 43 Chambers v. Howell lOlo Chambre ». Maude . . 147 149 Chatfield v. Berchtoldt. . Slo Chesterfield (Earl) v. Bond 52 Chillingworth v. Chillingworth . . 107 Church's Will, Re .. . 191 Clarke v. Clarke 249 Cockell V. Pugli 209 Coffin V. Cooper 38 Coles V. Gurney 54 Cook V, Hall . . 76 Coombes v. Warwick 12 Coombs V. Brooks 38 Cooper i>. Knox 10 V. Wood 54 Cope V. Russell 54 Coster 11. Coster 38 Cousins 1). Vasey . . 250 Cox V. Barnard . . 43 ». Taylor 136 — V. Yorke 144 Coyle V. Alleyne . . '65, 66 Craig, Ex parte . . 179 181 Cramer, Ex parte.. . 250 V. Gennings ,. 149 Cridland v. Lord De Mauley 70 Crofts V. Middleton , . 251 Croyden's Trust, Re 189 D. Damer v. Lord Fortarliugton . . 71 Dance V.Shaw .. .. 139 Dando v. Dando PAGE 38 Danford v. Cameron . 54 Dansey v. Marshall .. 147 Darlton, Re . 192 Davenport v. Davenport .. 102 Davidson t). Marchioness of Has- tings.. ,. 52 Davies, Ex parte . . . 211 Davis V. Davis . . 145, 146 150 V. Lord Combermere 107 ,116 Dawson v. Young . , 145 Deaville v. Deaville . . , 251 De Baljnhard v. Bullock .. 172 De Beaumont, Ex parte . . 187 De Clifford's Estates, Re 212 De Crespigny v. Kitson . 96 Deerhurst i). Jones , . 248 Dunsem v. BIwoithy 249 Devey v. Thornton .. 8 Dicker v. Hugo 152,153 Digby «. Boycatt .. 38 Dixon 4. Pyner . . . . 107 Domville v. Lamb 181 Doody V. Higgins . . . 249 Drought V. Red ford , , 115 Dubois V. Hole . 53 Duffield V. Elwes 80 E. Early 1). Whiiling ..' 145,150 Eccles ». Cheyne, 145, 148, 150, 153 Edwards V. Jones .. .. 70 .Emmott V. Emmott . . . . 67 English V, Hendrick . . 54 Esdaile v. Molyneux . . . . 65 Evelyn d. Forster . . . . 207 Everett, Re i90 Ewington v. Fenn . . . . 252 Eyre' 1). Williams .. ..147 F. Falkner v. Grace Farquharson v. Balfour Fellowes «. Deere . . J). Till.. Ferris v, Ferris Field's Settlement, Re . , Fiott V. Mullins Fletcher, Ex parte Follett V. Jefferyes . . Forbes v. Forbes Forrest v. Scholfield Fowler v. Reynal Frankis v. Washbourne French, Ex parte Frith V. Humble 183 68 45 209 158 192 70 191 71 87 149 81 145 207 153 TABLE OV CASES. Fry B. Mantell . . Fulham, Re.. Fuller V. Newton Gaffee's Settlement, Re _ Gathercole v. WHkinson Gibson v. Hewett . . 0. Ingo Gilchrist V. Fonten.. Gilpin v. Magee .. 147, Girdlestone v. Lavender, Glover V. Hall Glyn V. Caulfeild Goldsmid v. Slonehewer Goodull V. Little . . ' V. Skerratt Goodchap V. Weaving Goode V, West . . . . Goodwin V. Goodwin Gordon v. Shaw Gore V. Bowser Gould T. Robertson Gray V. Dickinson . . I'. Rusbridger Gregg V. Taylor Grote V. Bing . . Groves v. Lane Guardner II. Boucher .. PjIGE . 67 311 . 1.S6 H. Haines v. Barton Hales V. Darell V, Sutton . . Hanman v. Riley . . Hanson's Trust, Re Hanson v. Games . . V. Lake Harford ». Rees Harrison t>. Stevrardson . Harrold, Re.. Hartv. Tulk .. Hartland v. Dancox Harvey o. Brooke Haverfield v. Pynian Hay V. Willougbby Hay ward v. Price . . Hemming v. Mayo Henderson v. Meggs Hennegal v. Evance . Heyn v. Heyn Hill V. Ledbrook V. Tollett Hills V. M'Rae . . Hiorns v. Holtom . . 191, 192 .. 52 71 .. 138 139 153, 154 146, 248 70,71 70, 71 .. 249 71 .. 144 70 147,189 ISB .. 5Y 80 .. 148 150 .. 157 38 102,134 250 .. 43 . 23 107 . 54 249 . 251 146 208,211 70 . 43 197 . 45 151 70 .. 248 1.50 .. 146 54 .. 79 107 .. 43 149 .. 150 146, 243 Hobhouse v, Courtney Hobson V. Neale Hogliton V. Hoghton Holden v. Chalcraft Holme V. Holme Hornby v. Holmes , , Howard v. Howard Hubbard v. Child . . Hughes, Ex parte V. Lipscoifibe Hume 11. Bentley Hunt i>. Lever Hunter v. Capron «. Nockolds Hurst V. Hnrst . . Hutchinson v, Taylor Hyde v. Forster I son V. Coe . Jackson v. Craig jjj Grant . James v. Bartley Jefferies ». Briggs . Jenkin v. Row . . Jersey, Lord, v. Jenkins .Tervoise, Re V. Clarke . 1). Silk.. Jeudwine v, Alcock . Johns ». Mason . . Johnson v, Barnes V, Tucker . Johnston v. Todd Jones v. Batten V. Beach . . I/. Geddes ». Harris .. V. Rose V. Swinford V. Woods Joseph's Will, Re PAGE . 54 249 . 81 151 . 245 54 . 77 154 . 208 58 . 251 54 . 71 lOla ,. 54 152 ,. 54 153 .. 185 150, 153 .. 151 150 .. 146 53 .. 190 129 .. 38 115 147, 152-3-4 .. 53 75 .. 38 234 .. 150 54 .. 53 45 145, 152 136 189, 190 K. Kent V, Waterhouse . . . . 68 Kinder v. Forbes . . . ■ 54 King. Be . . • • 206, 208 King U.Bryant .. .. 107 . V. Leach . . 206, 209, 21 1 V. Smith 211 King of the two Sicilies v. Wilcox 70 Kirby's Trust, Re . . . . 87, 192 b xvm TABLE 01 CASES. L. PAGE Ladbroke v. Bleaden . . . . 141 Lambert v. Lonias . . . . 59, 'iS-l Lancaster V. Lancaster . . ,, 13^ Lanev. Hardwicke .. .. 54 Langdale s. Gill . . . . 138 Law, Re . . . . 206, S07 Leathart V, Tliom ■■ .. 81 Leslie V. Sniilb .. .. 149 Levetl's Trust, Re .. ,.192 Lewis V, Baldwin . . . . ^ 53 D. Hlllman .. ..192 Liverpool t>. Cliippendall . . 68 Lloyd V. . . . . 150, 152 V, Makeam . . . . 45 ». Smith 43 V. Waring .. ., 139 Lorinier, Re .. .. .. 191 Lovell, Be 80 Lowes V. Lowes . ■ .. .. 136 Ljnch V. Lecesne . . . . 58 M. ManiTold, Re M'Coy V. Cross Macdermott v. Ward . . M'Hard; v. Hitchcock M'Intosh V. The Great Western Railway Company . . 70, 71 Mackenzie v. Mackenzie Mackreth v. Nicholson M'lireillie v. Acton Maden v. Veevers . . 190, 136, 149, Magawley's Trust, Re Man V. Ricketts Manners v. Charlesworth Marshall v. Davies Martin's Estate, Re Martin v, Hadlow Masters* Clerks, case of Matthews v. Pincomb . . Maynard's Settlement Trusts Mendham v. RobinE^on Mercers' Company v. The Great Northern Railway Company . . Merry, Re Mildmay ti. Methuen, Miller v. Knight Milligan v. Mitchell Money, Re Moore v. Sainley . . V. Smith ■ V. Vinten .. Mores v. Mores Morison v. Morison Morrell v. Tinkler 236, 206 151 147 71 ,77 210 53 251 132 11 192 139 211 152 23 155 109 156 207 139 86 211 125 208 138 192 150 218 96 75 107 23i Morrell d. Wootten Murray v. Vipart Musseiiden's Trusts, Re N. FAOK 70 .. 54 189, 192 Naylor v. Robson . . . . 157 Neck V. Gains . . . . 89 Newenham v. Pcmberton . . 53 Noad V. Backhouse . . 54 North of England Joint Stuck Banking Company, Re .. 124 Norton v. Hepworth . . 54 Nye V. Maule . . . . ■ ■ 38 0. Ommaney, Ex parte Ora II. Fawceit Osborne v. Foreman P. Palk V. Lord Clinton Palmer v. Wright . . Parker v. Burney V. Constable Parry, Re Pawsey «. Barnes ■ . Peacopp V. Humble Fearce v. Baron Pearse i). Pearse Peart, Ex parte Peck V. Beechy Peile V. Sloddart . . Penny v. Penny 144, 147, 149, loO, 153, 154, 252 Penruddock V. Hammond ., 71 Perishall v. Squire . . . . 38 Phipps ti. Budd .. .. 146 Flunket v. Joice .... 45 Potts V. Thames Haven Company 150 Preston v. Dickinson . . . . 53 Prylharch v. Havard . . 209 211 70 43 138 70 209 139 189 154 146 38 80 191 38 71 R. Rackham v. Cooper, Rayner i>. Rayner . . Rawlins v. M'Mahon Recce v, Trye . , Reid V. Langlois Reynell ti. Sprye . . Rhodes V. Morse Rice V. Gordon .. 152 148 .. 250 71 .. 70 70, 71 .. 148 71 TABLE OF CASES. PAGS Riclicord v. NedrifF , . . . 54 Rickford v. Young .. 145, 161 Rigg V. Wall 53 Rimell V. Simpson . . .. 187 Robinson's Trust, Re . . . . 207 Robinson v. Harrison (or Hewit- son) - V. Lamond - 1'. Newdick - V. Turner - V. Wood 241, S52 64, 66, 67 94 .. 146 206, 211 145, 150 70 145 Robson II. Jefferson Rodick v. Gandell . Rolling V, Hargrave . . Rooth (or Booth) v. Tomlinson 85, 251 Rose V. Smith . . . . . . 144 Ross's Trust, Re . . ..191,192 Rowland v. Oakley . . . . 152 Rowley ti. Adams .. .. 206 Russell, Ex parte . . . . 206 Russell V. Dight . . . . 68 S. St. John V. Stirling Salviati v. Denman Saunders v. Walter Scargill v. Hurry .. 212 148 .. 102 146, 149, 252 Scott v. Lord Hastings .. I5; V. Wheeler . . . . 70 Scarrah V. Scurrah .. .. 150 Sergison v. Beavan . . 52 Shallcross v. Weaver . . . . 71 Sharpe's Trustees, Re ,. 191-2 Sharpe 0. Blondeau .. ..51a Sbaw V. Simpson .. .. 129 Sherwood v. Vincent . . . . 251 Shewell v. Shewell . . . . 38 Shrewsbury Grammar School, Re Silver v. Stein Sims v. Helling .. Simson v. Muckleston Sitwell V. Heron Skegg V. Simpson . . Skinner v. Sweet Slade V, Robinson . . Sloggett V. Collins Small V. Attwood . . Smallwoodv. Rotter Smeathman v. Bray Smith V. Boucher -^— V. Constant . . V. Corles . . V. Edwards 107 250 97, 157 J51 .. 177 54 .. 38 145,152 .. 45 45 187,189 146 .. 208 152,154 150, 151 84 V. Hibernian Coal Company 54 V. Marshall , •• . ■ 54 c. Smith .. 14.'), 152 Snead v. Snead Snow I), Hole . . South CoUingham, Rectoi Spencer v. Mostyn Spickernell v. Hotham Staines v. Rudlin Stainton v. Chadwick . . Staples' Settlement, Re Steele v. Plonier . . Stilwell ». Mellersh Stinton v. Taylor .. Siutely, Ex parte Swallow V. Binns . . Swann v. Wortley of PAGE 151 54 23 . . 38 . 152, 158 .. 248 .. 71 191 52, 53, 54 206, 211 .. 75,218 .. 194 . . 185, 250 .. 87 Tagg V. South Devon Railway Company . . . . 70 Tanner v. Strutton . • . . 67 Tarlton I). Titley .. .. 147 Taylor, Re 80 Third Burnt Tree Building Society, Re Thistlewaite v. Gamier Thomas's Trust, Re Thomas v. Colsworth . . ^— ^ V, Earl Jersey V. Selby Thompson v. Jones t). Wilberforce Thornton v. Tenlow Tillstone's Trust, Re . . Tilt II. Jesselyu Tippins V. Cuates Toon V. Totterell Toulmin v. Copland Tourney, Exparte Tristram i). Roberts Tugwell V. Hooper Turner ii. Hind . . II. Turner Tyson, Ex parte Re U Upfull's Trust, Re 208,211 181, 185 208 .. 151 53 .. 54 54 .. 146 70 .. 190 147 79,80 145, 146 .. 38 191 .. 80 71 .. 43 115 .. 207 208 191 W. Wade 11. Nawnham 146 Waldron v. Sloper .. 152 Walker, Re 212 Wa.sh V. Trevanion . .. 80 Walters ti. Jackson .. 206, 209 TABLE OF CASES. PAGE PAGE Waiisey v. Tempest .. 71 Williamson u. JefiFreys .. 261 Warbarton v, Vauglian 206 Winter, Ex parte . . 207,211 Warden. Warde .. 71 Wisden v. Wisden 79,80 Waring, Re 19t WStherden v. Mercer 150 Warier v. .. 38 Wood's Settlement, Re .. 192 Watson V. Young . . 14? Wood v. Logsden . . 252 Watts V. Hjde .. 138 Woodford v. Woodford .. 145 Wear v. Wilkinson 38 Woodman i'. Farley . . 145, 147 Webb o. Salmon .. 54 Wright's Will, Re .. 190 Weymouth v. Lambert 54 Wright u. Angle 75 Whiffen v. Hartwriglit .. 71 V. Bratt .. 146 White V, Kimpton . . 157 Wroughton v. Barclay 70 Whltmare v, Ryan .. 53 Whittington v. Cordei 147 Whophara v. Wingfield .. 186 Wilding V, Richards 136 Y. Wilkin V. Nainby . . 218 Wilkinson v. Stiingfsr 84, 154 Yftte V. Lighthead 136, 152 Willans V. Loman .. 54 Yates, Ex parte 208 Willcocks V. Butcher 116 Yeatman v. Moulsey . . .. 49 STATUTES AND ORDERS. CLASS I. THE JUDGES OF THE COURT. ♦ Sect. 1, — The Lord Chancellor, the Lords Justices qf the Court of Appeal, and their Officers, 2. — The Master of the Rolls and the Vice-chancellors, and their Clerks and Officers. Sect. 1. — The Lord Chancellor (a), the Lords Justices of the Court of Appeal (6), and their Officers. It shall be lawful for her Majesty, from time to time, by 14 & 15 vict. letters-patent under the great seal of the United Kingdom, c. 83 (c). to appoint two persons, being or having been respectively „ ^^^^^^ (a) It may be understood generally that the expression " Lord Chan- cellor" means and includes the Lord High Chancellor of Great Britain and the Lord Keeper or Lords Commissioners of the Great Seal of the United Kingdom for the time being, unless such meaning is repugnant to or inconsistent with the context The acts relating to the Court of Chancery usually contain provisions to this effect. The salary of the Lord Chancellor is such a sum as, with his salary as Speaker of the House of Lords, will make up the yearly sum of 10,000i., and is now payable out of the consolidated fund. 14 & 15 Vict. c. 83, ». 17, and 15 & 16 Vict. c. 87, s. 16. {b) The salary of each of the Lords Justices is 60002. per annum, and is now payable out of the consolidated fund, 14 & 15 Vict. c. 83, s. 19, and 15 & 16 Vict c. 87, s. 16 ; and the crown is empowered to grant out of the consolidated fund to any such judge, on resignation, an annuity of 3750^ for life, if he shall have held office for fifteen years, or be affected with permanent infirmity, disabling him from the due execution of his office. 14 & 15 Vict. c. 83, s. 20. (c) "An Act to Improve the Administration of Justice in the Court of Chancery and in the Judicial Committee of the Privy Council." — Royal Assent, 7th August, 1851. B 2> Sec. III. Style, Sec. of judges. Oath. Sec. IV. 2 THE JUDGES OF THE COURT. [CtASS 1. 14&15V.C.83. barristers-at-law, of fifteen years standing, to be judges of the Court of Appeal in Chancery, and every judge so ap- pointed shall hold his office during good behaviour ; pro- vided always that it shall be lawful for her Majesty to re- move any such judge from his office upon an address of both Houses of Parliament ; and the Lord Chancellor, together with such two judges for the time being, appointed as afore- said, shall form the Court of Appeal in Chancery. The said judges shall be styled Lords Justices of the Court of Appeal in Chancery, and shall have rank and pre- cedence next after the Lord Chief Baron of the Court of Exchequer, and as between themselves shall have rank and precedence according to the order and time of their appoint- ment. Every judge so appointed shall previous to his executing any of the duties of his office take the following oath, which the Lord Chancellor or the Master of the Rolls for the time being is hereby respectively authorized and required to ad- minister : I do solemnly and sincerely promise and swear, that I will duly and faithfully, and to the best of ray skill and power, execute the office of Lord Justice of the Court of Appeal in Chancery. So help me God. From and after the first day of October, one thousand eight hundred and fifty-one, all the jurisdiction of the High Court of Chancery in England, which is now possessed and exercised by the Lord Chancellor in the said Court of Chan- cery, and all powers, authorities, and. duties, as well minis- terial as judicial, incident to such jurisdiction, now exercised and performed by the Lord Chancellor, shall and may be had, exercised, and performed by the said Court of Appeal. Where under any Act of Parliament any jurisdiction is vested in the Lord Chancellor, or any power, authority, or duty is to be exercised or performed by the Lord Chancellor, and under the directions of any Act or by the usage in this behalf, such power, authority, or duty is or ought to be ex- ercised or performed by the Lord Chancellor acting judicially Sec. V. General jurisdic- tion. Sec. VI. Statutory juris- diction (a). (o) By sect. 7, the jurisdiction possessed by the Vice- Chancellors in matters of bankruptcy is vested in the Court of Appeal ; and jurisdiction in lunacy also has since been conferred on the Lords Justices. Sect. 1.] THE JUDGES OP THE COURT. Sec. VIII. Court may sit with tlie assist- ance of a common in the said Court of Chancery, all such jurisdiction, power, 14&15V. c.83. authority, and duty, and the ministerial powers and authori- ties incident thereto or consequent thereupon, which are now exercised and performed by the Lord Chancellor, shall from and after the said first day of October, one thousand eight hundred and fifty-one, be had, exercised, and performed by the said Court of Appeal. It shall be lawful to the said Court of Appeal and the Master of the Rolls, and the Vice Chancellors, and for each of the said jurisdictions, to sit, with the assistance of any lawjudge. judge of either of her Majesty's Courts of Common Law /S^eeJVafs 10. "S^X at Westminster, upon the request of the Lord Chancellor, if any such common law judge shall find it convenient to attend upon such request. The decision of the majority of the judges of the Court of Appeal shall be taken and deemed to be the decision of ; the said Court; and if the judges of the Court be equally divided in opinion on any cause or matter brought before the Court by way of appeal, the decree or order appealed from shall be taken and deemed to be affirmed by the Court of Appeal. All decisions, decrees, or orders of the Court of Appeal, including decisions in matters of bankruptcy, shall be subject to appeal to the House of Lords in the cases and under the conditions in and under which the like decisions, decrees, or orders of the Lord Chancellor would have been subject to such appeal if this Act had not been passed ; but the ap- peal to the House of Lords in matters of bankruptcy shall be only on matters of law or equity, or on the rejection or admission of evidence, and on a special case to be approved and certified by one of the judges of the Court of Appeal hereby constituted, whose determination on the settlement of such case shall be final and conclusive. All the jurisdiction, powers, and authorities of the said Court of Appeal may be exercised either by one only of the judges for the time being appointed under this act and the Lord Chancellor sitting together as such Court of Appeal, ySeeJYofSJ'- o4fy. or by both of the judges so appointed sitting as such Court apart from the Lord Chancellor, either in his absence from the said Court of Chancery, or during the same time as he is b2 Sec. IX. Decision of ma- jority of judges and division in opinion. Sec. X. Appeal to the House of Lords. Sec. XI. How jurisdiction may be exercised. THE JUDGES OF THE COURT. [Class I. 14&15V.C.83. Reservation of separate jurisdic- tion of L. C. Sec. XII. L. C. to regulate sittings and busi- ness of Court of Appeal. Sec. XIII. Saving of the ministerial and certain other powers of L. C. sitting in such court : Provided always, that the Lord Chan- cellor shall and may also while sitting alone or apart from such two judges have and exercise the like jurisdiction, powers and anthorities as well as all such other jurisdiction, powers and authorities as might have been exercised by the Lord Chancellor if this Act had not been passed. The Lord Chancellor shall fix the times at which the two judges of the said Court of Appeal appointed under this Act, or either of them, shall sit with the Lord Chancellor, and at which such two judges shall sit apart from him as such Court of Appeal, and also what appeals and matters now usually heard and determined by the Lord Chancellor, and hereby made subject to the jurisdiction of the said Court of Appeal, shall be heard and determined by such Court when the Lord Chancellor is sitting with the said judges to be appointed under this Act, or one of them, and by such judges when sitting apart from such Lord Chancellor, and by such Lord Chancellor when sitting alone respectively, and generally may make such regulations as to him may seem proper for di- viding and regulating the business of the said Court of Appeal, and for the attendance of a registrar of the said Court of Chancery at the sittings of the said Court of Appeal. Nothing herein contained shall afiPect any of the powers, duties, or authorities attached to the office of Lord Chan- cellor, or exercised by the Lord Chancellor as keeper of the great seal, except the powers, authorities, and duties which are exercised and performed by him acting as a judge in the said Court of Chancery, either by virtue of his ordinary juris- diction or of any statute, and the ministerial powers and au- thorities incident thereto respectively, or affect the powers, authorities, and duties of the Lord Chancellor, under and by virtue of any appointment under the sign manual of the crown, as having the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, or in rela- tion to letters-patent, grants, or writings passed or to be passed under the great seal of the united kingdom, or the re- vocation of such letters-patent, grants, or writings, or the powers and authorities of the Lord Chancellor, in right or on behalf of her Majesty, as visitor of any charity or other foun- dation, or the powers of the Lord Chancellor of appointment to or removal from, or otherwise in relation to offices in the Sect, l.j the judges of the court. 5 Court of Chancery, or other offices, save as herein specially 14&15V. o.83. provided, or the powers of the Lord Chancellor to direct and regulate the sittings and duties of the Vice-Chancellors, or any powers of the Lord Chancellor (whether to be exercised by the Lord Chancellor alone, or with the concurrence or advice or consent of the Master of the Rolls, or of the Master of the Rolls and the Vice- Chancellors, or otherwise,) to make Rules or Orders for regulating the practice, proceedings, and business of the Court of Chancery, or the business or duties of any of the offices or officers of such Court ; and in all cases concurrence of where the concurrence, advice, or consent of the Master of maMng"|enerai" the Rolls and of one of the Vice-Chancellors, or of either of "**"• tliem, shall be requisite for the making of such Rules or Orders, the concurrence, advice, or consent of one of the judges appointed by virtue of this Act may be substituted for that of the Master of the Rolls or of such Vice-Cban- cellor. In case the Master of the Rolls or any Vice-Chancellor of sec. xiv. the High Court of Chancery shall be prevented by illness or maysit foVii.^K.! otherwise from sitting at any time when, according to ordi- " ' nary course, his Court would be open, the Lord Ciiancellor may, by writing under his hand, from time to time, so often as occasion may require, authorize one of the judges of the said Court of Appeal to sit for the hearing and deter- mining of causes and matters in lieu of the Master of the Rolls or such Vice-Chancellor, and the judge sitting under such authority as aforesaid may, for the purpose of disposing of any cause or matter which has been partly heard by him, continue such his sittings, notwithstanding the Master of the Rolls or Vice-Chancellor in whose stead he has partly heard such cause or matter may also be sitting for the hearing of other causes or matters ; and all decrees and orders made by such judge in pursuance of such authority shall be of the same effect and validity, and subject to revision and ap- peal, in the same manner, in all respects, as if made by the Master of the Rolls or Vice-Chancellor, as the case may be : provided always, that such judge shall not sit as a judge of the said Court of Appeal upon any appeal from any decree or order made by himself. , Sec.xy. IT 11 1111 ai r»*j I-ords Justices, if Everv person holdms or who has held the ofnce of a iudge privy councillors, f , A I- A 1 • nu 1 11 T u eu toheoftheJudi. of the Court of Appeal in Chancery shall, if a member oi her ciai committee. 6 THE JUDGES OF THE COURT. [CtASS I. 14& 15V. 0.83. Majesty's Privy Council, be a member of the Judicial Com- mittee of the Privy Council. 15&16V.C.80. Whereas it has frequently happened that after cases have L. c^inceruin been fully heard by the Lord Chancellor in the Court of I'uf^'^nLwh™ Chancery and are standing for judgment, the Lord Chan- out of office. cellor has delivered up the great seal without being able, by reason of other urgent public business, to deliver judgment therein, and much inconvenience and expense to the parties has been thereby occasioned : For remedy thereof be it enacted. That in every such case it shall be lawful for the person vyho has so delivered up the great seal, within six weeks after he shall have delivered up the same, to give in to the registrar of the said Court a written judgment therein, signed by him ; and a decree or order, as the case may re- quire, shall be drawn up in pursuance of such judgment ; and every such decree or order shall have the same force and effect as if the judgment in pursuance whereof it is drawn up had been given in open Court the day before he shall have so delivered up the great seal. Officers {a), 14&15V. C.83. ^^ shall be lawful for her Majesty, in and by such letters- offl ^'^''' 'd patent as aforesaid, or by any other letters-patent under the tendants of Lords great seal of the United Kingdom, to direct that each of the iTustices. . . . judges to be appointed in pursuance of this Act shall have a secretary, usher, and trainbearer, to be from time to time appointed and removed by such judge at his pleasure ; and the secretaries, registrars, and other officers appointed to attend the Lord Chancellor shall attend the said Court of Appeal, and the respective judges thereof as circumstances shall require, and the Lord Chancellor shall direct. 15&16V.C.87. The respective duties of the offices of the keeper or clerk ^e'^-b")" of ^^^ Majesty's hanaper and of chaff wax and sealer shall Pursebeai'er to L. C. (o) The following yearly salaries are payable to the officers of each of the Lords Justices : that is to say, 4002. to his secretary ; 250/. to his usher; and 100/. to his train-bearer. 14 & 15 Vict. c. 83, s. 19. From the 28th October, 1852, the yearly salaries following are made payable to the following officers of the Lord Chancellor in lieu of the fees received by them for their own use : that is to say, to the principal secretary, 1200/. ; to the gentleman of the chamber, 600/. ; to the purse- bearer, 500/. J and to the train-bearer, 200/. 15 & 16 Vict. c. 87, s. 24. Sect. 1&2.] the judges of the court. 7 thenceforth (a) be performed by the clerk of the crown in 15&16V.C.8 7. Chancery and the pursebearer to the Lord Chancellor re- spectively, as directed by the Act of the session holden in the third and fourth years of the reign of King William the Fourth, chapter eighty-four, upon such offices becoming vacant by the death, resignation, or removal of the then respective holders thereof, and such pursebearer shall be thenceforth entitled to such yearly sums for the expenses of the offices of chaff wax and sealer as are by the said last-mentioned Act directed to be paid to him. It shall be lawful for the Lord Chancellor to appoint a seo. xxiv. clerk to be employed in the office of such principal se- cierk to l. c.'s cretary, which clerk shall receive by way of salary such t'^"''' annual sum, not exceeding two hundred pounds, as the Lord Chancellor shall from time to time direct. Sect. 2. — The Master of the Rolls {b) and the Vice- Chancellors, their Clerks and Officers {c). [And see the proceedings at judges' chambers, fost, CLASS XVII.] It shall be lawful for her Majesty to appoint, by letters- I4&i5v.c.4. patent under the great seal of the United Kingdom, a fit Annotat'''ent of a person, beins or bavins been a barrister at law of fifteen ^jB- 'J* 2,'? p'^°' *^ ' ° ° ... of Sir J. Wigram. years standing at the least, to be an additional judge as- (a) Viz., from the 28th October, 1852 ; from which day those offices were by the same section abolished. (fr) The salary of the Master of the Rolls is now reduced to 6000Z. a year, and is payable out of the consolidated fund. 14 & 15 Vict. c. 83, s. 18 ; and see 15 & 16 Vict. c. 87, s. 16. (c) The salaries of each of the Vice-Chancellors is now 5000^ a year, payable out of the consolidated fund ; that of his secretary, 300i. a year ; his usher, 2002. a year ; his train-bearer, lOOi. a year ; and the persons appointed to keep order in his Court, 80i. a year. See 55 Geo. 3, c. 64 (L. and P.) ; 6 Geo. 4, c. 84, b. 2 ; 2 & 3 Will. 4, c. 116, s. 1 ; 5 Vict, c 5, ss. 8, 34, 35, 37, and 50 ; 14 and 15 Vict. c. 4, ss. 4 and ff; 14 & 15 Vict, c. 83, H. 19 ; and 15 & 16 Vict. c. 87, s. 16. And the crown is empowered to grant out of the consolidated fund to any Vice-Chancellor, on resigna- tion, an annuity of 3500?. for life, if he shall have continued in office for fifteen years, or shall be affected with permanent infirmity, disabling him from the due execution of his office. See 6 Geo. 4, c. 84, o. 5 ; 5 Vict, t. 5, ss. 36 and 37 i and 14 & 15 Vict. c. 4, s. 5. I4&15V. C.4. Sec. II. Hit> powers, &c. Sec. III. His officers and attendants. Sec. VI. {Extract.) Persons to keep order in his Court. 15&16V.C.80. Sec. LII. {Extract.) Power to appoint successors to V. C. Turner. THE JUDGES OF THE COURT. [CtASS I. sistant to the Lord Chancellor in the discharge of the judicial functions of his office, in the place of the said Sir James Wigram, and to be called Vice-Chancellor(a). The Vice-Chancellor to be appointed under this Act shall have all the same powers and privileges, and the same rank, and shall be subject to the same provisions, duties, and ob- servances, as the said Sir James Wigram had or was subject to under the said Act of the fifth year of her present Majesty, session one, chapter the fifth, excepting that he shall have rank and precedence next after the Vice-Chaucellors that now are. He shall have a secretary, usher, and trainbearer, to be from time to time appointed and removed by him at his pleasure ; and the secretaries, registrars, and other officers appointed to attend the Lord Chancellor shall attend such Vice-Chancellor wlien sitting for the Lord Chancellor, and also when sitting in his separate Court, as circumstances shall require, and as the Lord Chancellor shall order or direct. It shall be lawful for the Lord Chancellor to appoint one or more person or persons, removable at pleasure, for the purpose of keeping order in the Court of the Vice-Chan- cellor to be appointed under the authority of this Act (a). That it shall be lawful for her Majesty from time to time when and as any vacancy shall occur in the office of Vice- Chancellor, now held by the said Sir George James Turner, by the death, resignation, or removal from office of the said (a) It may be useful to mention here that in consequence of the death of the Vice-Chancellor of England, which took place in August, 1850, and of the resignation of Vice-Chancellor Wigram on the 26th October, 1850, all causes and matters which at the time of such resignation were attached to the Court of the late Vice-Chancellor Wigram were trans- ferred and attached to the Court of the then Vice-Chancellor Knight Bruce ; and all causes and matters which were attached to the Court of the late Vice-Chancellor of England at the time of his death were trans- ferred and attached to the Court of the then Vice-Chancellor Rolfe, afterwards Vice-Chancellor Lord Cranworth. See Orders III., IV., V., VI., and VII., of 2nd November, 1850; 12 Bea. xxix. And in con- sequence of the resignation of the then Vice-Chancellors Knight Bruce and Lord Cranworth, which took place in October, 1851, all causes and matters which ^ere then attached to the Court of the then Vice-Chan- cellor Knight Bruce were transferred and attached to the Court of the then Vice-Chancellor Parker ; and all causes and matters which were then attached to the Court of the then Vice-Chancellor Lord Cranworth were transferred and attached to the Court of Vice-Chancellor Kin- dersley. See Orders III., IV., V., VI., and VII., of 29th October, 1851 ; 14 Bea, xvj. SiiCT. 2.] THE JUDGES OF THE COURT. 9 Sir George James Turner, or his successor for the time being, 15& 16V.C.80. it shall be lawful for her Majesty, by letters-patent under the great seal of the ^nited Kingdom, to appoint a fit person, being or having been a barrister of fifteen years standing at the least, to supply such vacancy (a). The Vice-Chancellor to be appointed under this Act shall sec. tin. have all the same powers and privileges, and the same rank, sucrassors."" " and shall be subject to the same provisions, duties, and ob- servances, as the said Sir George James Turner shall, at or immediately before his death, resignation, or removal from office, have or be subject to under the said Act of the four- teenth and fifteenth years of her present Majesty, chapter four, and this Act, or any other Act or Acts then in force, excepting that, as between himself and the other Vice-Chan- cellors or Vice-Chancellor for the time being, he shall have rank and precedence next after the Vice-Chancellors or Vice- Chancellor, if any, who may be senior to him in appoint- ment to office. Such Vice-Chancellor shall have a secretary, usher, and sec. liv. train-bearer, to be from time to time appointed and removed attendaSsf'^ *"* by him at his pleasure ; and the secretaries, registrars, and other officers appointed to attend the Lord Chancellor shall attend such Vice-Chancellor when sitting for the Lord Chan- cellor, and also when sitting in his separate Court or in chambers, as circumstances shall require, and as the Lord Chancellor shall order and direct. It shall be lawful for the Lord Chancellor to appoint one gee. lvii. or more person or persons, removable at pleasure, for the courSeepers. purpose of keeping order in the Court of the Vice-Chan- cellor, to be appointed under this Act (6). That in all informations or bills to be marked under the 29 Oct. 1851. first Order of the 5th day of May, 1837(c), with the words inbiSsV/tobe " Lord Chancellor," the plaintiff shall, underneath the words marked l.c. the ^ ' • name of a V. C. to . be written, and (o) There are now three Acts of Parliament authorizing the appoint- to his Court, ment of the same number of Vice-Chancellors, viz., the 53 Geo. 3, c. 24, the 5 Vict. u. 5, and this Act. (6) The provisions for the salaries of such Vice-Chancellor and his officers and court-keepers, and for the retiring pension of the Vice- Chancellor, are similar to those made for the existing Vice-Chancellors and their ofBcers and court-keepers. See ss. 55, 56, and 57, and note (c), ante, p. 7. (c) By this Order of the 5th May, 1837, it was directed that every original information or bill should, at the option of the party by or on 10 THE JUDGES OF THE COURT. [Class I. 29 Oct 1851. 2 Nov. 1850. Ord. XXVII. Petitions, &c. under s. 19 of 13 & 14 V. c. 35, to be marked in the same manner as a bill. 13&14V.C.35. Sec. XXIX. (Extract.) Discharge of orders of course. 2 Nov. 1B50. Ord. XXVI. To what judge ap' plication to be made. " Lord Chancellor," write the name of one of the Vice-Chan- cellors at his option, and the cause shall thenceforth, unless removed by some special order of the Lord Chancellor, be attached to such Vice-Chancellor's Court (a). Every petition or motion paper for a reference under the 19th section of the said Act (6) is to be marked at or near the top or upper part thereof in the same manner as a bill is now marked with the name of the Lord Chancellor and one of the Vice-Chancellors, or with the name of the Master of the Rolls ; and every order for any such reference is to be marked in the same manner as the said petition or motion paper, and the matter in which such order is made is thence- forth to be considered as attached to the Court of the judge whose name shall be so marked upon such order, in like manner and other like purpose as causes are attached to such Court, but shall be subject to be transferred from such Court in the same manner as causes are so transferred : and the provisions of the Order comprised in the General Order of the 5th of May, 1837, which is numbered 15, and of the General Order of the 5th of August, 1842(c), shall apply to every matter so attached. That it shall be lawful for the Master of the Rolls and the Vice-Chancellors respectively to discharge, reverse, or alter any order made on motion or petition of course by any other of them, or by the Lord Chancellor. Applications to discharge, reverse, or alter any order made on motion or petition of course by the Lord Chancellor, the Master of the Rolls, or one of the Vice-Chancellors, are to be made to the judge to whom special applications in the cause or matter in which such order is made, ought to be made according to the practice of the Court, and the General Rules and Orders applicable thereto (d). whose tehalf the same should be filed, be distinctly marked at or near the top or upper part thereof, either with the words "Lord Chancellor," or with the words " Master of the Rolls." (a) The corresponding Order of the 1st November, 1841, has been discharged. See Order I. of 2nd November, 1850, and Order I. of 29th October, 1851. (6) 13 & 14 Vict c. 36, which affords to executors or administrators, on their application, in a summary way, the same protection against debts and liabilities of the deceased as they could obtain under a decree. (c) These two Orders relate to applications for special orders in the interval between the sittings after any term and the sittings before or in the following term. (d) See Cooper «. Knox, 21 Law J. 383. This Order assumes that an Sect. 2.] thb judges of the cobrt. U It shall be lawful for the said Court of Appeal, and the 14&15V.C.83. Master of the Rolls, and the Vice-Chancellors, and for each sec. viii. of the said jurisdictions, to sit, with the assistance of any may^s'ifwlth tS' judge of either of her Majesty's Courts of common law at romm"n!aw'' Westminster, upon the request of the Lord Chancellor, if any '""^se. such common law judge shall find it convenient to attend upon such request. In case the Master of the Rolls, or any Vice-Chancellor of sec. xiv. the High Court of Chancery, shall be prevented by illness ?Z&Xfy"^t or otherwise from sitting at any time when according to ordi- whi^'prevente/' nary course his Court would be open, the Lord Chancellor '™" si'tmg- may by writing under his hand from time to time, so often as occasion may require, authorize one of the judges of the said Court of Appeal to sit for the hearing and determining of causes and matters in lieu of the Master of the Rolls or such Vice-Chancellor, and the judge sitting under such authority as aforesaid may, for the purpose of disposing of any cause or matter which has been partly heard by him, continue such his sittings, notwithstanding the Master of the Rolls or Vice- Chancellor, in whose stead he has partly heard such cause or matter, may also be sitting for the hearing of other causes or matters ; and all decrees and orders made by such judge in pursuance of such authority shall be of the same effect and validity, and subject to revision and appeal in the same manner in all respects, as if made by the Master of the Rolls or Vice-Chancellor as the case may be : Provided always that such judge shall not sit as a judge of the said Court of Appeal upon any appeal from any decree or order made by himself. And whereas by an Act passed in the third and fourth l3&i4V.e.35. years of the reign of his late Majesty King William the Not4ithStag Fourth, intituled "An Act for the Regulation of the Pro- ssf'i3&i4judgt'8 ceedings and Practice of certain Offices of the High Court of "i^tae^a*"^*!' Chancery in England," it is enacted, " That the Masters in tiona therein JO' ' mentioned. Ordinary of the High Court of Chancery shall hear and determine all applications for time to plead, answer, or demur, and for leave to amend bills, and for enlarging publication, and all such other matters relating to the conduct of suits in the said Court as the Lord Chancellor, with the advice and order of course may be made by the judge of a Court other than that to which the cause is attached, and shows therefore that Order V. of 11th November, 1841, was not intended to comprise applications of course. Magan d. Magan, 16 Jur. 587. The 6th Order of 9th May, 1839, was discharged by Order I. of 2nd November, 1850. 12 THE JUDGES OF THE COURT. [Class I. 13&14V.e.35. assistance of the Master of the Rolls and Vice-Chancellor, or one of them, shall by any general order or orders direct, in such manner and under such rules and regulations as by any general order or orders, to be also issued by the Lord Chan- cellor, with the advice and assistance aforesaid, shall be directed, and that it shall be lawful for either party to appeal by motion from the order made on such application to the Lord Chancellor (a). Master of the Rolls, or Vice-Chancellor, and that the order made on such appeal shall be final and conclusive;" and it is enacted, " That no such application as above mentioned shall in future be heard by any of the judges of the said Court of Chancery except on appeal as herein- before provided." And whereas the last mentioned enact- ment has been found to be inconvenient, be it therefore enacted, that notwithstanding the provisions of the said Act, it shall be lawful for any of the judges of the said Court to hear and determine any such application as mentioned in the said Act in the first instance, if under special circumstances he shall think fit so to do (b). 15 & 16 V. c. 80(d). Sec. XVI. Chief clerks. Sec. XVII. Clerks (c). It shall be lawful for the Maste r of the Rolls, and every o f the Vice-Chan cellors for the time being respectively, with the approbation of the Lord Chancellor, to appoint two chief clerks each to be respectively attached to each such judge and his successors in office, for the purpose of assisting in the general business of each Court and the causes and matters belonging thereto, and on any vacancy in such office of chief clerk to supply such vacancy. No person shall be appointed chief clerk to the Master (o) In Coombes v. Warwick, 1 Coop. Rep. t, Cottenham, 282, the Lord Chancellor refused to bear such an appeal himself. (6) Ss. 13, 14 and 15 of 3 & 4 Will. 4, c. 94, were totally repealed by the Id & 16 Vict. c. 80, s. 35. (c) The salaries of each of the chief clerks is fixed at 1200/. a year, which, subject to the provisions of the Act, may be increased at the end of three years to 1500/. a year; and the salary of each junior clerk is 250i. a year, which may be increased at the end of five years to SOOl. a year ; and the Lord Chancellor is empowered to grant to any such clerk afflicted with permanent infirmity, disabling him from the due execution of his office, and desirous of resigning, an annuity not exceeding two- thirds of his salary. 15 & 16 Vict. c. 80, ss. 44 and 45. (d) " An Act to Abolish the Office of Master in Ordinary of the High Court of Chancery, and to make provision for the more speedy and efficient dispatch of business in the said Court." — Royal Assent, 30th June, 1852; Sect. 2.] the judges of the court. 13 of the Rolls or any Vice-Chancellor unless he shall have 15&16V.C.80. been chief clerk to one of the Masters in Ordinary of the said Court, or have been admitted on the roll of solicitors Qr_ attornies in one of the Courts of Westminster Hall, and p ractised as such solicitor or attorney for the perio d of ten ^ears at least im mediately preceding his appointment : Pro- vided always, that George Whiting and Henry Leman, the present chief clerks of the said Masters hereby released as aforesaid, and Charles Pugh, chief clerk in the oflSce of the Master now vacant, shall on the said first day of Michaelmas Term, one thousand eight hundred and fifty- two, become and they are hereby appointed chief clerks of three of the said equity fudges and their respective successors in oflSce. It shall be lawful for the judge of each Court to appoint a See. xviii. junior clerk to each chief clerk of his Court, and on any -f""" '=''*^- vacancy in such office to supply such vacancy. If any person who shall accept any office under this Act see. xix. shall engage in any other employment whatever whilst he 0^8!°"""° holds such office, or,shall receive any sum o f money o r benefit other than his salary and what may be allowed or directed to be taken by him under any Act of Parliament or Order of the said Court or of the Lord Chancellor, for any ae t-dpne or pretended to be done, or any attendance given or pretended to be given, either with or without the consent or direction or pretended consent or direction of the judge, in relation to or arising out of any proceeding in his office, or in any office of or connected with the Court of -Chancery, or if such person, being or having been a solicitor or attorney, shal l directly or indirectly r eceive or secure to himself any co ntini^ii}^ benefit 'from any business or firm in which he may have been en- gaged previously to his appointment to such office, the person so offending may be removed fr om his office by order of the Lord Chancellor, and shall be rendered incapable of afterwards holding any office, s ituation, or employment in the said Court. *" Every solicitor or attorney who shall be appointed to and . See. xx. shall accept any office under this Act shall cease to be an be struck off tbe attorney or solicitor, and shall forthwith procure himself to " '' be struck off the roll of solicitors of the High Court of Chancery, and off the roll of any of her Majesty's Courts of record at Westminster on which his name may be. 14 15&16V.C.80. Sec. XXI. Tenure of office. Sec. XXII. Sec. XXIII. Control of judges. Sec. XXIV. Subject to prohi- bitions, Sic. of 3 & 4 W. 4,'c. 9i. Sec. XXV. Power to remove chief clerks. 15&16V.C.87. Sec. LII. (Extract.) M. R. may ap- point clerks to the secretary at the KoUs. THE JUDGES OF THE COURT. [ClASS I. Every such chief clerk shall hold his o ffice during his good beh aviour, and so long as he shall personally give his attend- ance upon his duties, and shall conduct himself honestly and faithfully in the execution of the duties of his office, but subject to the power herein-after contained to remove any chief clerk for any cause which the Lord Chancellor and judges removing may think sufficient. Every such junior clerk shall hold his office at the pleasure of the jud ge towTiose Court he shall be attached. Such chief clerks and junior clerks shall be respectively under the control of the judge to whose Court they shall re- spectively be attached, and shall attend at such places, during such times, and for such hours in each day, and perform such duties, as such judge shall from time to time direct. Every chief clerk and every junior clerk to be appointed under this Act shall be subject and liable to such and the same prohibitions, prosecutions, penalties and punishments, as are by an Act passed in the session holden in the third and fourth years of the reign of King William the fourth, chapter ninety-four, imposed and directed with respect to persons holding any office, situation, or employment in the said Court of Chancery, or under any of the judges or officers thereof, in the same manner as if the enactments therein contained relating to such officers of the said Court respectively were here repeated. It shall be lawful for the Lord Chancellor, with the concur- rence of the Master of the Rolls and Vice-Chancellors for the time being, or any two of them, by any order to remove any chief clerk to be appointed under this Act from his office, without stating any cause for such removal. It shall be lawful for the Master of the Rolls to appoint a clerk or clerks to be employed in the office of the secretary at the Rolls, which clerk or clerks shall receive by way of salary such annual sum or sums as the Master of the Rolls shall from time to time fix and determine ; provided always, that such annual sum or sums shall not in the whole in any one year exceed the sum of three hundred pounds. ( 15 ) CLASS II. THE OFFICERS OF THE COURT. Sect. 1. — The Officers in general. 2. — The Masters in Ordinary and their Clerks. 3. — Conveyancing Counsel, Accountants, Merchants, En- gineers, Actuaries, and other Scientific Persons. 4. — The Accountant-General and the Clerlca in his Qfflce. 5- — T>ie Registrars and their Clerks. 6. — The Master of Reports and Entries. 7. — The Examiners. 8. — The Clerk of Inrolments and the Clerks qf Records and Writs. 9. — T?ie Taxing Masters and their Clerks. 10.— -The Clerk of the Petty Bag. Sect. 1. — The Officers in general (a). From and after the twenty-eighth day of October, one jg ^ jg y thousand eight hundred and fifty-two, no officer of the Court c. 87(6). of Chancery or of any of the judges thereof shall be entitled See. i. j^.„,.. - ,, Payment by sal»- to receive and retain for his own use any fee or reward what-, ilea in lieu of fees. soever (c), and all officers of the Court of Chancery and of (o) From the 28tli October, 1852, the following offices are abolished, that is to say, the keeper or clerk of her Majesty's hanaper, deputy clerk of the hanaper, the secretary of decrees and injunctions, one of the two gentlemen of the chamber attending the great seal, the chaff wax, the deputy chaff wax, the sealer and the deputy sealer, the patentee of the subpoena office, the deputy of the patentee of the subpcena office, the clerk of affidavits, the assistant clerk of affidavits, the second assistant clerk of affidavits, the clerk of reports, the doorkeeper of the CoGrt of Chancery, and the crier of the Court of Chancery, and the office of usher of the Court of Chancery, and the offices of clerks of accounts. 15 & 16 Vict. c. 87, ss. 23, 27 and 36. (6) " An Act for the Relief of the Suitors of the High Court of Chancery." Royal assent, 1 July, 1852. (c) And by s. 5, the allowances for copying provided for the clerk of reports, the clerks of entries, the assistant clerk of affidavits (whose office 16 THE OFFICERS OF THE COURT. [ClASS II. 15&16V.C87. the judges thereof now entitled to receive and retain any ffees or other payments for their own use, which by virtue of this Act they will cease so to receive after the twenty-eight day of October, one thousand eight hundred and fifty-two, and whose salaries are not fixed by this Act, shall, while they continue to hold their respective offices, receive in lieu of all fees or other payments whatsoever now received by or paid or payable to them for their own use such salary as, having regard to the emoluments heretofore received by them, and to the nature and tenure of such offices, the Commissioners of her Majesty's Treasury shall think just, and upon the present holders of such offices respectively ceasing to hold the same the Commissioners of her Majesty's Treasury shall fix the salaries to be thereafter received in respect thereof with reference to the nature and duties of such offices respectively. Sec. II. It shall be lawful for all officers of the Court of Chancery tinueto receive and of the judges thereof heretofore entitled to receive any theVtaufthe fee fees or emoluments for their own use, and for their suc- ^^°^ cessors in their respective offices, and their several and respective clerks or agents, to continue to receive and take all and every the fees and emoluments which have been accustomed to be paid to them, until the Lord Chancellor shall by any order or orders otherwise direct, and all such fees and emoluments as shall accrue and be received by such officers respectively, from and after the twenty-eighth day of October, one thousand eight hundred and fifty-two, shall be accounted for and paid by them respectively once in every month into the Bank of England, in the name of the Ac- countant-General of the Court of Chancery, to be placed to the account there intituled " The Suitors' Fee Fund Ac- count," the amount so received and paid by such officers respectively to be verified by the affidavit of the accounting party. was abolished by s. 27), the clerks of the Examiners, and the copying clerks of the Masters were directed to cease from the same day, and the Lord Chancellor is empowered to make such regulations as to copies of proceedings and documents, and the payment for the same, as may from time to time seem expedient. The Lord Chancellor is also empowered to make general orders relative to the offices abolished by the Act, and for carrying the Act into execution, and for altering and regulating the business of the offices of the Court. See ss. 87 and 38. Sect. l.J officers in general. 17 From and after the twenty-eighth day of October, one i5&i6V.c.87. thousand eight hundred and fifty-two, if any officer of the i^HrL Court of Chancery or of any of the judges thereof shall, for t°akegrat"uftie°s. anything done or pretended to be done relating to his office, situation, or employment, or under colour of doing anything relating to his office, situation, or employment, wilfully take, demand, receive, or accept, or appoint or allow any person whatsoever to take for him or on his account, or for or on account of any person by him named, any fee, gift, gratuity, or emolument, or anything of value, other than his salary and what is allowed or directed to be taken by him under this Act or any order to be made under this Act, the person so offending, when duly convicted, shall forfeit and pay the sum of five hundred pounds, and shall be removed from any office, situation, or employment he may hold in the said Court, and shall be rendered and he is hereby rendered incapable for ever thereafter of holding any office, situation, or employment in the said Court, or otherwise serving her Majesty, her heirs or successors. It shall be lawful for the Lord Chancellor to direct any of Sec. ix. the officers of the Court of Chancery whose duties may be ^ ° ° ^ *"'''■ diminished in consequence of the substitution of stamps for money payments, or otherwise, under this Act, to act under the directions of the Commissioners of Inland Revenue in the sale and distribution of all or any of the stamps to be used under this Act : Provided always, that in case it appear to the Lord Chancellor, having reference to the duties to be performed by such officers or any of them, that it is not con- venient that they should act as aforesaid in the sale and dis- tribution of stamps, it shall be lawful for the Commissioners of Inland Revenue to appoint persons for such sale and dis- tribution, and to allow to such persons so appointed by them such discount or poundage as they may think fit. If any officer of the Court of Chancery or other person See. xili. shall do or commit or connive at any fraudulent act or prac- frau(r&c"to be tice in relation to any stamp to be used under the provisions "™™° of this Act, or to any fee or sum of money to be collected or which ought to be collected by means of any such stamp, or if any such officer or person shall be guilty of any wilful act, neglect, or omi.ssion in relation to any such stamp or fee as aforesaid, whereby any fee or sum of money which ought to 18 15&16V.-C.87, Sec. XLVII. {Extract.) Removal, &c. of disabled officers. THE OFFICERS OF THE COURT. [CtASS II. be collected for ihei benefit of the said fee fund, shall be lost to the said fee fund, or the payment thereof evaded, every such officer or person so offending shall be dismissed from his office or employment, if the Lord Chancellor shall think fit so to order. From and after the passing of this Act, it shall he lawful for the Lord Chancellor, by order, to remove any officer of the Court of Chancery, or any officer or person employed in the offices of the. Masters in Lunacy, or the Registrar in Lunacy, who shall be afflicted with any infirmity which shall disable him from the due execution of his office, and who shall refuse to resign, or become incapable of resigning the same (a). 10&11V.C.97. Sec. I. (Sxtract.) Attendance at public office dis- continued. 15 & 16 V. c. 80 (c). Sec. I. Office of Master abolished, except certain duties. Sec. II. No vacancy to be filled up. Sect. 2. — The Masters in, Ordinary and their Clerks. [And see the proceedings in the Masters' offices, post, CLASS XVIIl.] ' That the attendance of the said Masters at the public office be discontinued from and after the time at which this Act shall come into operation (6). The office of Master in Ordinary of the High Court of Chancery shall be and the same is hereby abolished (d), but reserving and subject to the execution by the present Masters in Ordinary of the said Court as to such of the duties as here- inafter provided for ; and until they are released under this Act they shall for the performance of such duties continue to have all the powers conferred upon them by any Act of Parliament or otherwise vested in them. No vacancy which has already occurred or may hereafter "occur in the office of Master in Ordinary of the said Court (o) Upon such removal the Lord Chancellor is by the same section empowered to grant to such officer' a retiring allowance not exceeding two-thirds of his salary ; and by s. 46, the Lord Chancellor is empowered to grant a superannuation allowance to the officers of the Court, except any clerk of inrolments, clerks of records Euad writs, or Taxing Master to whom he may have given a retiring allowance under the 5 & 6 Vict, c. 103. (6) From the 10th August, 1847! see s. 6. (c) For the title, &c. of this Act, see ante, p. 12, note (d). (d) The office of Master, held by Master Lynch, had been previously Sect. 2.] masters. ig shall be filled up, nor shall any future Accountant General 15&16V.C.8Q. be made or become one of the Masters in Ordinary. On the first day of Michaelmas Term, one thousand eight Sec lii. hundred and fifty-two James William Farrer Esquire and ters released from William Brougham Esquire, two of the Masters in Ordinary aproviso'S'to' of the said'Court, shalFbe released from their duties as such """^ "*«''•'• Masters ; and as often thereafter as, in the judgment of the Lord Chancellor, from the state of business in the said Court, any other Master or Masters can be s.pared, it shall be lawful for the Lord Chancellor to release any such Master or Masters at such time or times as to him shall seem meet(a) : provided always, that nothing in this Act contained shall ex- tend to release, or to authorize the Lord Chancellor to release, any of the Masters from attendance upon the House of Lords without the order of the House : provided also, that if, from the nature of any particular matter or matters depending be- fore either of the said Masters hereinbefore respectively nam^d, it shall in the opinion of the Lord Chancellor be desirable that such matter or matters should be worked out by or before the said Master before whom the sajne shall be depending, it shall be lawful for the Lord Chancellor to direct such Master to continue the prosecution of such matter or matters, and such Master shall prosecute the same accord- ' ingly, in the same manner and with the same powers in every respect as if he had not been released from his duties under this Act. Every Master to be released by the Lord Chancellor shall „ , ^'"'- ^^■ ■^ , , ■' ^ Release of re- have the option to retire tendered to him according to his maining Masters. seniority in office ; and if any such Master shall, for one calen- dar month after such option tendered to him, neglect or decline to avail himself thereof, then the Lord Chancellor may tender the like option to the next in succession in seniority in office, and so toties quoties ; but when the Lord Chancellor shall be of opinion that the services of none of the Masters are any longer necessary for the due execution of the business of the abolished by the 10 & 11 Vict. e. 60, si. 1, and the causes and matters referred to him transferred to other Masters, under an order of the Lord Chancellor of the 21st April, 1847. (o) The Masters so released are to continue to receive, by way of retiring pension, the full amount of their salaries. See ss, 5 and 6. c 2 20 THE OFFICERS OF THE COURT. [CtASS II. 15&16V.C.80. said court, it shall be lawful for him to release every remain- ] ing Master. Sec. X. From and after the first day of Michaelmas Term one Future duties. jj^^yg^^j gjgjjj hundred and fifty-two no reference shall be made to any of the Masters in Ordinary of the said Court, except i n cases in which, from some p revious reference made In the~cause oT matter, or in so me other cause o r matter con nected theLe with. the Court may think it exp edient to make such reference, and except in matters arising under the Joint Stock Companies Windin g-up Acts 184 8 and 1849: provided always, that until all the Masters in Ordi- nary of the said Court shall have been removed by resigna- tion, death , or otherwise , or have been released from their duties under this Act, such of the Master s in Ordinary of the said Court as shall for the time being remain in office, and shall not be released from their duties under this Act, shall prosecute a ll the bu siness which on the first day of Michaelma s Term one thousand eight hundred and fifty- two shall be depending before the Masters, and also all the re- ferences which before the said first day o f Michaelmas Term one thousand eight hundred and fifty -two shall have been made under decrees or orders of the Court, or which on or aiter t he same firjit day of Michaelmas Term shall be made in relation toei^B^Xcepted matters as aforesaid ; and the same, if necessary, shall be distributed amongst such remaining Masters in such manner as the Lord Chancellor shall direct ; and the powers and authorities now vested in them are hereby reserved to them for the purpose of executing and performing all the duties, matters, and things which may be still referred to them, or which they may be lawfully called upon to perform. Sec. LViii. Nothing herein contained shall in anywise prejudice or MSerktocon-** affect the title of the present Masters in Ordinary of the said leased""'"' '^*' Court to the salaries payable to them as such Masters unless and until they shall be respertively released under this Act, or the power of the Lord Chancellor to order a retiring al- lowance to any of them or any of their clerks (a) who may (a) By the 10 & 11 Vict. c. 97, s. 5, power was given to order a retir- ing allowance to any such clerk, not exceeding two-thirds of his salary j and see the general provision for superannuation allowances to the officers of the Court, 15 & 16 Vict. c. 87. s. 46. Sect. 2.] masters. g] be or become afflicted with some permanent infirmity dis- 15&16V.C.80. abling him from the due execution of his office, and who '~~ shall be desirous of resigning the same ; and every of the present Masters in Ordinary of the said Court, until released under this Act, shall have the same establishment of clerks, whose salaries and compensations shall be payable out of the same funds as the salaries and compensations of their clerks are now payable; and all the expenses attending the establish- ment of the Masters' offices shall be paid in like manner as such expenses are now paid. Nothing herein contained shall preiudice or affect the rishts, Sec. Lix. J. "... ^1.^ 6' Saving of rights, duties, or privileges of the Accountant-General of the said &c. of Accountant Court of Chancery as a Master in Ordinary of the said Court, Master. or any salary or other payment payable to the said Accountant- General as such Master in Ordinary, or his right or title to any retiring allowance under any Act or Acts of Parliament now in force, nor shall the said Accountant-General be called upon or required to do or perform any duties or services as such Master in Ordinary other than such as are now usually performed by him. Nothing herein contained shall affect the rights, privileges, 15&16V. c.87. or duties to which the present Accountant-General is entitled iiieiute. ^' or which he is liable to perform as one of the Masters in Ordinary of the Court of Chancery. That it shall be lawful for any Master in Ordinary of the See. xlii. Court of Chancery, and for the chief clerk of any such Sales by auction. Master, and for every other person appointed in that bahalf by_a ny such ..Master, to sell any goods or chattels, lands, tenements, or hereditaments, or any interest therein, under any decree or order of the said Court, by auction or by any other mode of sale by competition, without any licence as an ^ auctioneer, and without being liable to the duty imposed by the said last-mentioned Act (a), or any other Act or Acts now in force (6). In case of the absence, from illness or otherwise, of any 3 June, 1850. Master to whom any cause or matter is referred, any other Mayaot fore'acii .. , .... .11 ^1 other in certain Master may, with his concurrence, act m the place ot the cases. Master so for the time being absent ; but any order or other (o) 8 & 9 Vict. c. 15. (6) And by s. 43, the Masters and their chief clerks are indemnified in respect of all former sales. 3 June, 1850. Ord. XIII. To consider addi- tional orders, &c. THE OFFICERS OF THE COURT. [CtASS II. proceeding to be made or had by or before such Master so acting, is to be entered as made or had by or before him for or in the place of the Master to whom the reference is made. The Masters are forthwith and from time to time to meet and consider such additional orders or regulations as may appear to them or the majority of them calculated to expedite and facilitate the satisfactory transaction of the business of the suitors in their offices ; and to report such additional orders or regulations to the Lord Chancellor, to the end that if the same should be approved by him, proper steps may be taken for such additional orders or regulations being adopted and duly made general rules and orders of the Court. Sect. 3. — Conveyancing Counsel, Accountants, Mer- chants, Engineers, Actuaries, and other Scientific Persons (a). From and after the first da y of Mi chae lma s Term, one thousand eight hundred aind fifty-tw oTitshall be lawful for 15&16V.C.80. Sec. XL. The Court and bars may take the the Court, or for any j udge thereof, when sitting at cham bers, veysmcing coun- to receive and act upon the opinion of conveyancing counsel in actual practice, to be nominated as hereinafter mentioned, in all cases in which, according to the present practice of the Court and of the Master's office, it has been usual for the Master to require or receive the opinion of c onveyan cing counsel, for his aid and assistance in the i nvestigation of~the titlel o 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 settlemen t of a draft of a c onveyance, mortgage, settlement, or other instr ument, or otherwise, and in sa£ other cases as the Lord Chancellor shall by any general order direct ; but it shall be competent for any party to object to any opinion of any such counsel when he shall (a) These professional and scientific persons, although not strictly officers of the Court, may be considered so pro Mc vice, and are in fact so designated by the Chancery Commissioners. See their Report of 27th Jan. 1852, pp. 35 and 43. Sect, 3.] conveyancers, etc. 23 deem it open to objection, and thereupon. the point in dispute '15&16V.C.80. shall be disposed of by the Court, or by the judge sitting in chambers, according to the nature of the case (a). It shall be lawful for the Lord Chancellor to nominate any „ s^"' 'P'^- . _ •' Nomination of number of conveyancing counsel in actual practice, not less conTeyancing ■ , *"r- i r-; • ' ^ r— r- , K. ' counsel. than SIX, who shall have practised as such for t en year s at leasIJTo be the conveyancing counsel, upon whose opinioiTthe Court, or any judge thereof, may act in any of the cases last before mentioned, and to supply vacancies in such list from time to time, and to distribute the business among such counsel in such order and manner as to the Lord Chancellor shall seem fit. The business to be referred to the conveyancing counsel 16 Dec. 1852. nominated by the Lord Chancellor, under the 15 & 16 Vict, Distribution ot c. 80, s. 41, is to be distributed among such counsel in rota- tion™^^ yroa- tion by th e first clerk to t he Re gistrars for the time being, and during his occasional or necessary absence by the second clerk to the Registrars for the time being, and during the oc-' casional or necessary absence of both such clerks, then by such one of the other clerltsto the Registrars as the First^ Registrar for the time being may nominate for that purpose. The clerk making such distribution as aforesaid is to be re- Ord. ll. ., , , I , • ■ T •, T ,. Jfode of distribu- sponsible that the business is distributed according to regu- tlon to be kept lar and just rotation, and in such manner as to keep secret from all persons the rota or succession of conveyancing coun- sel to whom such business is referred ; and it shall be his duty (a) Where money is to be invested under the sanction of the Court, the course is for the Court to be satisfied that the investment is a proper one, upon which a note to that effect is taken by the Registrar, and the appli- cation stands over until the opinion of the ofScial conveyancing counsel approving the title is obtained ; upon that being produced, verified by affidavit, the Registrar will take a note that the Court is satisfied with the title, and the matter is ordered further to stand over that the convey- ancing counsel may settle the draft of the deed. The Court will not prospectively make the order for payment of the money on the deed being settled by the conveyancing counsel, but when that has been done, the case must be mentioned again, and then an order is made providing for the completion of the business, Re Caddick's Settlement, 9 Hare, App. ix. ; Re Chamberlain's Charity, 45 L. O. 38 ; Re Martin's Estate, 20 Law T. 136 ; and Ex parte Rector of South Collingham, 9 Hare, App. xii. Where deeds are to be settled, the parties attend the judge in cham- bers, and if the parties differ, the matter is referred to one of the convey- ancing counsel, Haines v. Barton, 45 L. O. 37 ; and for the manner of settling deeds to be executed by incapacitated persons where money is paid into Court, see Harvey v. Brooke, 9 Hare, App. xi. ZSa THE OFFICEES OF THE COURT, [ClASS II. 16 Dee. 1852. to keep a record of such references, with proper indexes, and to enter therein all such references. Old. III. yfh&a. the Court, or a iudae sittins at chambers, shall direct Course of pro- ^- ^"-^ ' J » n ceeding before any b usjn ess to be referred to any such conveyancing counsel, Court or a judge, ^ •', -— '^xr^.>_ , — -"T - , ~,. : — . ' , a snort memorandum or minute ot such direction is to be prepared ^iH signed by the Registrar , if the same shall have been given in Cour t, or. by the judge's chief clerk if given in c hambers , and the party prosecuting such direction, or his solicitor, is to take such memorandum or minute to the Re- gistrar's clerk, whose duty it shall be to make such distribu- tion as aforesaid ; and such clerk is to add at the foot thereof a note_specifying the name^CT the convey ancing co unsel in rotation, to whom such business is to be referred, and such memorandum or minute is to be left by the party prosecuting such direction, or his solicitor, with such _conveyancing coun- sel, and shall be a sufficient authority for him to proceed with the business so referred. Ord. IV. In case the conveyancing counsel in rotation shall from ill- Frovision for case _ , , , , i t ofinabuityorre- ncss or irom any other cause be unable or decline to accept any such reference, the same shall be offered to the other con- veyancing counsel appointed as aforesaid successively, ac- cording to their seniority at the bar, until some one of them ■a ,11.1 '^ ~ - — - '-^^^^^ ^^ — ' shall accept the same, Ord. V. The preceding orders are not to interfere with the power judge unaffected, of the Court, or of the judge sitting at chambers, to direct or transfer a reference to any one in particular of the sa^ conveyancing counsel, where the circumstances of the case may, in his opinion, render it expedient. 24Dec. 18S2. When any of the Masters in Ordina ry shall request the Courserfpro- Opinion of any of the con veyancing cou nsel, nominated by MlS^r^""*^""* the Lord Chancellor under the 15 & 16 Vict. c. 80, s. 41, to be taken upon any matter depending before such Master, such business is to laid before the conveyancing counsel in rotation, to be ascertained in the manner prescribed by the general orders of the 16th day of December, 1852 ; and a memorandum or min ute of every such request is to be pre- pared by the Master^s chief clerk, and signed by him, and such memorandum or minute, when marked with the name of the conveyancing co unsel in rotation, shall be a sufficient authority for such counsel to proceed with such business ; and if the conveyancing counsel in rotation shall be unable or de- Sect. S.] conveyancers, etc. ZSb cline to proceed therewith, the same shall be offered to the 24 Dec, 1852. other conveyancing counsel, nominated as aforesaid, suc- cessively, according to their seniority at the bar, until some one of them shall accept the same. > Before any estate or interest shall be put up for sale under 15&16V.C.86. a decree or order of the Court of Chancery, anabsfract of Abst/iwttobe'iaid the title thereto shall, with the approbation of"the't3ourt, be veyancin?coun- laid before ^me^ con veyancing cmH isel to b¥^ppinoved by tole'&eComL^' the Court, for the opinion of such counsel thereon, to the intent that the said Court may be the better enabled to give such directions as may be necessary respecting the conditi ons of sale of such estate or interest, and other matters connected with the sale thereof; and when an estate or interest shall be so put up for sale, a time for the delivery of the abstract of title thereto to the purchaser or his solicitor shall be specified in the said conditions of sale . Where, under a decree or order of the Court, whether 24 Dec. 1852 already made or hereafter to be made, any estate or interest xheUke,' where shall be put up for sale with the approbation of one of the sale befo're a Maa- Masters in Ordinary, an abstract of the title to such estate or interest is, upon the request of the Master, to be laid before the conveyancing counsel in rotation, for the opinion of such counsel thereon, to the intent that the said Master may be the better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest. Notwithstanding the preceding Orders, the Master is to be ord. iii. ° . . „ . • 1 /. Master may taks at liberty to request the opinion of any one in particular of tie opinion of any . , "^ . , , 1 , one of such coun- the said conveyancing counsel to be taken upon any matter aei. before such Master, where the circumstances of the case may render it expedient to do so. It shall be lawful for the said Court, or any judge thereof, 15&16V.C.80. in such way as they may think fit, to^obtain the assisUnce of Accountants, '&c. accouintants, merchants, engineers, actuaries, or other scien- tific persons, lhe~bettier to enable such Court or judge to determTne~any matter at issue in any cause or proceeding, and to act upon the certificate of such persons (a). (a) If after a reference to the Master it is desired to obtain the scien- tific aid provided for by the recent statute, the poper cours e is to obtain a transfer of the reference to the judge in chafflb^rS, MiTdraay v. Lord MetBSSTTIKS^yraTeTTiTSFrilrii: Tinkler, rffire, App. 1. The Court will not appoint a surve yor w ho has already g iven evidence in the case, Attorney-Ueneral v. lie brapers' Company, iu La,wl'. tsi. 24 THE OFFICERS OP THE COURT. [ClASS II. Sect. 4. — The Accountant-General and the Clerks in his Office (a). [As to the investment of the income of funds in Court under the Legacy Duty and Trustee Relief Acts, see Orders of 4th and 7th May, 1852, post, pp. 188 and 19S ; and as to the fees of taxation of costs pay- able out of a fund in Court, see Order 7 of 25th October, 1852, post, p. 246.] 28 July, 1852. That in any case in which the Accountant-General shall ~Ord. of L. c. have been directed to pay to parties to be named in the Mas- v^TOTs'ot personal ter's report, and the Master shall have reported a sum as due representatives. ^^ ^^^ persons as personal representatives, the Accountant- General shall be at liberty to pay to the survivors or survivor of them. 10 Dec. 1852. In any case where the said Court has heretofore by any ^lExtrlci^' order directed, or shall hereafter direct, any such deposit (6), StJonaDPeais^" *"^ portion of deposit, to be paid, the same shall be paid by *<'• the Accountant-General of the said Court, out of any sum of cash which at the time of such payment may be in the Bank to his credit the account entitled " The Appeal Deposit Account," to the party or parties to whom such deposit or portion of deposit is ordered to be paid, or to his or their solicitor, to be named in such order, whose receipt in such latter case shall be a sufficient discharge for the same. And for the purpose of such payments, the Accountant-General is from time to time to draw on the Bank according to the form prescribed by the Act of Parliament, and the General Rules and Orders of this Court in that case made and provided, without such direction being contained in each particular order. (o) By the 15 & 16 Vict. c. 87, s. 18, and Order 8 of 25 October, 1852 (post, Class XXXI.), the Accountant-General is to pay into the Bank the brokerage to he received by him ; and in lieu thereof, and in addition to his salary and allowance for books and stationery, he is by s. 19 to re- ceive a salary of 2700/. and by s. 22 the salary of every future Account- ant-General is to be 3000(. By s. 39, and Order 9 of 25 October, 1852 {post. Class XXXI.), the first, second, and third clerks in each division of the office are to continue to perform certain duties and to receive cer- tain fees, by the amount of which their salaries are to be fixed. (6) i. e. the deposit on appeals, &c. mentioned in the former part of the order, post, p. 26. Sect. 4 & 5.] registrars. 25 Sect. 5. — The Registrars and their Clerks. [ As to drawings up the- ordeis o£ the judges ia charabers, see post, p. 100 ; as to countersigning cheques, and signing office copies and certificates, see post, Sect 6; and as to the distribution of business among the Conveyancing Counsel by the Registrars' Clerks, see ante, Sect. 3.] It shall be lawful for the Lord Chancellor (in case it shall 14&15V.e.83, hereafter appear to be necessary.) by writing under his hand, See. xxi. to appoint one additional Registrar of the Court of Chancery, an idalttonS Re- and from time to time to fill up any vacancy in the said b"^''"- office ; and the person to be appointed such additional Re- gistrar shall be the seniof of the Clerks to the Registrars of the said Court for the time being, to whom no sufficient objection to the satisfaction of the Lord Chancellor shall be made (o); and such additional Registrar shall rank next after the junior of the Registrars for the time being, appointed under the Act of the fifth year of the reign of her present Majesty, chapter five, and shall personally do and perform all the duties, and have and enjoy all the rights and privileges; heloiig- ing to the office of Registrar, and shall be subject to the several provisions and penalties contained in the said Act relating to the Registrars of the said Court, and be entitled, in case of permanent infirmity or after continuance in office for forty years, to the like annuity as if he had been appointed Registrar in and by the said Act : provided always, that the acceptance of the office of additional Registrar by such senior Clerk for the time being, shall be without prejudice to all his rights of succession to the office of Registrar under the said Act. The deposit now payable on setting down appeals and ex- i5&i6V.c.87. ceptions for hearing shall continue to be payable, and such Deposit's^nm. deposits shall be paid to and received by the senior Registrar p^^'*- of the Court of Chancery for the time being, who shall once in every three months pay all sums so received by him into the Bank of England, to the credit of the Accountant-Gene- ral of the said Court (the amount so received and paid by such Registrar, to be verified by affidavit), and the several (a) By s. 22 such additional Registrar is to have a salary of 1250/., and also lOOZ. per annum for copy money ; and by s. 23 the eleventh clerk of the Registrars is to have a salary of 400/. 26 THE OFFICERS OF THE COUET. [ClASS II. 15&16V.C.87. 10 Dec. 1852. Ord. of L. C. (Mxlract.) The like. 3/une, 1850. Ord. XIV. To consider addi- tional orders, &c. sums when so paid in shall be from time to time placed to an account to be intituled " The Appeal Deposit Account," and the monies which shall from time to time be standing to such account shall be paid and applied as the Court of Chancery shall from time to time in that behalf order or direct. That the balance of cash in the hands of the Registrars of the said Court, or any of them, arising from deposits on ap- peals, re-hearings and exceptions, which deposits were made previously to the passing of the said Act (a), be ascertained, and the amount, to be verified by affidavit, be, pursuant to the said Act, paid into the Bank to the credit of the Accountant- General of the said Court to the account to be entitled "The Appeal Deposit Account ;" and that the senior Registrar for the time being do set down the deposits received by him under the said Act in a book to be kept by him for that purpose, together with a memorandum of the name of the cause or matter on which each deposit is made, and of the party making the same, and of his solicitor. The Registrars are forthwith and from time to time to meet and consider such Orders or Regulations as may appear to them, or the majority of them, calculated to expedite and facilitate the satisfactory transaction of the business of the suitors in their office, and to report such Orders or Regula- tions to the Lord Chancellor, to the end that, if the same be approved by him, proper steps may be taken for such Orders or Regulations being adopted and duly made General Rules and Orders of the Court. 158cl6V.c.87. Sec. XXIX. {Extract.) Duties of the Clerk of Reports, Sect. 6. — The Master of Reports and Entries, and Clerks in his Office. The duties of Ibe Clerk of Reports shall be performed by such perspn or persons as the Lord Chancellor shall appoint for that purpose, and such person or persons shall be entitled under this Act to such salary or salaries as the Commis- sioners of her Majesty's Treasury shall by any order direct, provided that the whole amount of such salaries shall not in any one year exceed the sum of four hundred pounds. (o) 16 & 16 Vict. c. 87. Sect. 5 & 6,] master of reports. 27 And whereas all notes and cheques for the payment of 15&16V.C.87. money drawn by the Accountant-General of the Court of See. xxxiv. Chancery upon the Bank of England have been heretofore to' gning'" °°"°' countersigned by the Registrars of the said Court, in pursu- tolS'^optel"" ance of the provisions of the Act of the session holden in the twelfth year of the reign of King George the First, chapter thirty-two : and whereas all copies and extracts taken from the Registrar's books, deposited in the office of the Master of the Reports and Entries, have been heretofore signed by the said Registrars : and whereas the performance of such duties by the said Registrars is attended with inconvenience, and interrupts them in the execution of their other duties ; and it is expedient that the Master of Reports and Entries should be empowered to sign such documents as well as the said Registrars: be it therefore enacted, that the duties re- lating to the countersigni ng the notes or cheques drawn by the Accountant-General of the said Court upon the Bank of England, and to the signing the copies and extracts made in or issuing from the oMc'gj oOIik.Migter of Reports andEn- tries, heretofore performed by the Registrars of the saiSn Court, so far as it shall be found necessary or expedient to continue such duties, shall be performed by th e Master o f Reports and^ Entries, _OTllieRegistrars of the said Court, in such manner and under such rules and regulations as the Lord Chancellor shall from time to Jime b y any order direct . The Masterof Reports and Entries shall also perform all sec. xxxv. such other duties as the Lord Chancellor shall from time to time by any order direct. That >TiP n ppipn nr .figjyacts m ade in or issuing from the 27 July, 1852. office of the Mast er ofRepor ts a nd En tries^ and certificates signature of office of no cause shown, shall be signed by him alone; save, that S't^™*"*"'" when he shall be prevented f rom signing the same by absence or some unavoidable or reasonable ground, ^e same sha ll be signed by the Reffl strar who shall be employed in counter- signing as next hereinafter mentioned. That until further order, the duty of countersjgn ing the countersigning . notes or cheques drawn by the Accountant-General of the "^'lues. said Court upon the Bank of England, shall be discharged, as nearly as conveniently may be, during three days in each weglst by tlie Master of Repo rts and Entries, and during the other three .da ys in each week by some one of the Registrars, 28 THE OFFICERS OF THE COURT. [ClASS II. 27 July, 1852. in such order and rotation as shall be agreed upon by and Ora.ofL.c. between the Registrars and the Master of Reports and En- tries, or the majority of them ; provided that such notes or cheques sliall be equally valid and available to all intents and purposes, whether signed by the Master of Reports or by any one of the Registrars, 15&16V.C.87. Whereas under an order of the said Court, recited in the AulraStapiko- said last-mentioned Act (a), and thereby confirmed, an account of BuTtOTs^onSs! of all monies, securities and effects, belonging to the suitors of'ciie''u°?"''""* of ^^^ ^^'^ Court, was directed to be kept at the Report Office; and whereas, since the passing of such Act, three account of such monies, securities and effects, have been respecti vely kept , that is to say, one at Th"e Report Office by the Clerks of Accounts, another in the offic e of^ the Account- ant-General of the said Court, and a third at the^ "B&BE oT * England : and whereas it is considered that the acco55Pis~ kept at"the Report Office is no longer necessary, and may be disco ntinued : be it therefore enacted, that from and after the first day of October, one thousand eight hundred and fifty-two, t he account so kept at t he Report O ffice ^g afore- sai d sh all be discontinued, and the offices of Clerk s o f Accounts shalTbe abolfshed ; and so much of the said last- mentioned order as requires, that when any money belonging to the suitors of the said Court should be directed to be paid by order of the said Court, the note drawn for such money upon cheque paper, as thereby directed, should be carried to the Report Office, and an entry made thereof there, and intratur written thereon, shall be repealed; and from and after the first day of October, one thousand eight hundred and fifty-two, every note or cheque fo r the payment of money, under any order of the said Court, si gned b y the Accountant - General of the said Court, and co unte^gned b v the Mastgj^ onteports and Entries, or one of the Kegistrars^ of the said Court, as hereinbefore required, shall be sufficient authority to the Bank of England to pay the money mentione3~in" sucb~ note or cheque to the person named therein, or to such person as he or she, by indorsement, shall order to receive the same. (a) 12 Geo. 1, c. 32. SeCT.6, 7&8.] EXAMINER, CLERK OF INROLMENTS, ETC. 29 Sect. 7. — The Examiners (fl). [And see post, title " Evidence," CLASS XIII. Sect. 1.] When the examination of witnesses before any Examiner 15&16V.C.86. shall have been concluded, the original depositions, authenti- seo. xxxiv, caled by the signature of such Examiner, shall be transmitted SaSsmiSfSae by him to the Record Office of the said Court, 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 in such manner as shall be provided by any general order of the Lord Chancellor in that behalf. It shall not be necessary to sue out any commission for the See. xxxv. examination of any witnesses within the jurisdiction of the said teroaths.^ "™'" Court; and any Examiner appointed by any order of the Court shall have the like power of administering oaths as Commissioners now have under commissions issued by the Court for the examination of witnesses. Sect. 8. — The Clerk of Inrolments, and the Clerks of Records and Writs. The duties theretofore (6) performed by the Secretary of 15&16V. c.87. Decrees and Injunctions shall thenceforth be performed by Isxu-act.) the Clerks of Records and Writs. t^'o?Decreer From and after the twenty-eighth day of October, one ""s^e'.'xxvTrr- thousand eight hundred and fifty-two, the execution of the ''""^V*®"*- ° .'^^.——.i — - — -^„_ — _ „.. poena Office, ^ duties of the Subpoena Office {c) shall be tranaferred to the Clerks of Records and Writs, and such duties shall be per- (a) By the 15 & 16 Vict. e. 86, a. 65, reciting the alteration in the nature of the duties and the increase of the responsibility of the Ex- aminers under the provisions of the Act, the Lord Chancellor was em- powered to order to be paid to each of them such a sum as should, together with the sums then payable, make up the annual sum of 1500/., but if either of the present Examiners should feel himself unable or should decline to continue his services upon the conditions provided by the Act, the Lord Chancellor was empowered to order to be paid to such Examiner retiring, an annuity not exceeding three-fourths of his salary. (4) i. e. from the 28th October, 1852, from which day the office of such secretary was by the same section abolished. (n) The offices of the patentee of the subpoena office and his deputy were abolished by s. 27. 30 THE OFFICERS OF THE COURT. [ClASS II. 15&16V.C.87. formed by them in such manner as they are directed to per- form the same by the Act of the session holden in the eighth and ninth years of the reign of her present Majesty, chapter one hundred and five, after the death, resignation, or removal from his ofBce, of the present patentee of the Subpoena Oflfice. From and after the twenty-eighth day of October, one Sec. XXIX. thousand eight hundred and fifty-two, the duties of the Affi- DutiesofAffl'iiavit davit OflSce of the Court of Chancery (a^ shall be performed ■ by the CrefEs^of R ecords and Writs, but affidavits or affirm- ations may be sworn, affirmed or attested upon honour and declarations made before the Clerk of Inrolments for the time being, as occasion may require, for the better despatch of business. Sect. 9. — The Taxing Masters and their Clerks. [The only recent provision relating to the offices of the Taxing Masters is the increase of the salaries of their clerks to 35 OZ. per annum by the 15 & 16 Vict. c. 87, s. 40.] Sect. 10. — The Clerk of the Petty Bag. [This officer was substituted for the Clerks of the Petty Bag by the 11 & 12 Vict. c. 94, and the office is now regulated by that Act, the general orders of the 29th December, 1848, partly discharged by the general order of the 3rd August, 1 849, (11 Bea. xi. and xxi.) and the Act of 12 & 13 Vict. c. 109. But as these provisions relate to the common-law side of the Court they do not come within the plan of the present work.] (o) By the 10 & 11 Vict. c. 97, the attendance of the Masters in Ordinary at the public office was discontinued from the 10th August, 184!7, and the duties directed by the 13 Ch. 2 (therein recited), to be performed by the Masters in the public office were directed to be per- formed by the Clerks of Affidavits ; see ss. 1, 2 and 6. By the 11 & 12 Vict c. 10, s. 2, the Clerks of Affidavits are empowered to administer all such oaths, declarations, affirmations and attestations upon honour as might be administered by a Master in Ordinary. These duties and powers have of course devolved upon the Clerks of Records and Writs, with the assistance of the Clerk of Inrolments. The Clerk_of Inrolmcnft Smd the Clej^g^ Records and Writs are, by s. 1 of tEelast-mentioned Act, also empoweredto^ffig^any dec larations required for the purpose of inrolling any deed or other_documentm CKancery. ( 31 ) CLASS III. JURISDICTION. Sect. 1. — Foreclosure Suits. 2. — Declaratory and Partial Relief. 8. — Accounts. 4. — Sales of Seal Estate.' 5. — Allowance to Parties of Part qfthe Property in Litigation. 6. — Qaiestions of Law. Sect. 1. — Foreclosure It shall be lawful for the Court in any suit for the fore- 15 ^ jg y closure of the equity of redemption in any mortgaged pro- 0. 86 (n). perty, upon the request of the mortgagee, or of any subse- See. xlviii. ' . — ° ° ' ■' """-* may direet quent mcnm brancer, or of the mortgagor, or any person sale of mortgaged , » ■ I , , . , - ,. i i . property instead claimmg under them respectively, to direct a sale of such of a foreclosure. property, instead of a foreclosure of such equity of redemp- tion, 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 snnh rpfjj pst. shall be made byany such subsequent incutnbrancer) or by the mortgag or. orby any person claiming under them respectively, the Court shall not airect any such sale, without th e consent o f the mortgagee or the persons claiming unde r him, unless t he party making such request shall deposit in (Jourt a reasonable sum (a) This Act is intituled "An Act to amend the Practice and Course of Proceeding in the Court of Chancery," and received the royal assent on the 1st of July, 1852, but takes effect only from the 1st of November, 1852, B. 67. It contains a power for the Lord Chancellor, with the advice and assistance of other judges of the Court, to make general orders, but not to take effect before the Act, and to be subject to the approbation of both Houses of Parliament, ss. 63, 64, 67. 32 jUBismcTioN. [Class III. 15&I6V.C.86. of money, to be fixed by the Court, for the purpose of secur- ~~ ing the performance of such terms as the Court may think fit to impose on the party making such request (a). Sect. 2. — Declaratory and Partial Relief Qi).'^ Sec. L. No suit in the said Court shall be open to objection on the Declaratory de- • i i » i — -r - - i cree. ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Court to make bi nding^ declarations of right witlTout granting consequential relief. (a) With respect to suits by or against mortgagees or persons in the position of mortgagees, the Chancery Commissioners say: — " If after a first mortgage the property should have been subject to several successive incumbrances, the first mortgagee desiring to foreclose the estate does in fact seek relief directly against the subsequent in- cumbrancers. They are all interested in contesting or reducing his demand, and are all interested in taking the accounts of his receipts if he have been in possession. The Act passed in the 1st and 2nd year of the Queen, cap. 110, altering the law in respect of judgment debts, has, by the operation of the provision making all registered judgment debts equivalent to equitable mortgages, increased the difficulties of a foreclosure or redemption suit, and imposed a serious hardship on the other incumbrancers of the judgment debtor. " Where a mortgagee or other incumbrancer institutes a suit for the purpose of realizing his security, all the subsequent incumbrancers who are all separately interested in contesting or reducing his demand, and in rendering their own securities available, are necessary parties to the suit When the decree in such a suit is for foreclosure, the decree of foreclosure cannot be pronounced until the priorities inter se of all the incumbrancers subsequent to the plaintiff have been ascertained ; the effect of which is that the plaintiff's remedy is delayed by the necessity of settling rights between ^e defendants. This inconvenience does not esist where the plaintiff is entitled to a decree for sale ; in such a case the estate may be sold at once, and the plaintiff's demand satisfied, the surplus remaining in Court as a fund to be applied in or towards satis- faction of the claims of the defendants when ascertained." (Report of 27lh of January, 1852, p. 19.) (J) It is a rule of Courts of Equity not to execute trusts partially, and not to make decrees merely declaratory. If, therefore, there are any questions of construction on a testator's will, the Court will not entertain such questions except in a suit for administering the estate, and after taking the accounts and ascertaining the property ; and where an estate is incumbered, and there is a question of priority between two incumbrancers in which no other party is concerned, such question cannot be determined except in a suit of the most comprehensive kind, to which every incumbrancer, and the owners subject to the incum- brances, must be parties. There seems no substantial reason for this. If, for instance, on the construction of a will there be a question who are the parties entitled to the residue, it would be generally convenient and economical to determine that before the accounts are taken ; and Sect. 1 & 2.] jurisdiction. 33 It shall be lawful for the Court to adjudicate on questions 15&16V.c,86 arising between parties notwithstanding that they may be See. li. so me only of the partie s interested in the property respecting which the question may have arisen, or that the property in question is comprised with other property in the same settle- ment, will, or other instrument, without making tli£ other parties interested in the property respecting which the ques- tion may have arisen, or interested under the same settlement, will or other instrument, parties to t hesuit, and witho ut re- quiring the whole trusts and purposes of the settlement, will, so with regetrd to other questions affecting specific portions of, or in- terests in, the trust or testamentary estate. So it might be convenient to enable one incumbrancer to institute a suit against another for the purpose of ascertaining their respective priorities by a declaratory decree. The rule of the Court making it impossible in such oases to obtain a decision on the question really in dispute, except in a suit embracing matters as to which no one desires the intervention of the Court, has an obvious tendency to load the record with unnecessary parties, and is a fruitful source of expense. This evil is in some degree remedied by the recent law enabling the parties by agreement to take the opinion of the Court on a s pecial case. — — — — — ~-~"~~-" The following oDservations on the subject of partial relief were made by Sir G. Turner, V. C. in his evidence before the Lords' Committee on the Masters' Jurisdiction in Equity Bill of 1851. " It is very desirable that power should be given to parties to apply to the Court for partial relief; but it requires, in my judgment, very great guards ; for the effect will be, that application will be made to the Court for one purpose, and the estate will be exhausted by the expenses of that application, and then an application may again be made to the Court, in relation to the same estate, for another purpose, upon another matter ; and successive applications will tend very much to exhaust the estate, in the same manner as the separate reports, which have been commonly made in suits, have tended to exhaust the estate. The expenses are very greatly increased by the successive applications which are made ; but with proper guards and cautions to prevent applications being made to the Court successively, I think that clause is a very beneficial clause, and I have reason to know that Lord Cottenhara thought so; but he thought it necessary that it should be guarded. In the bill to which I have re- ferred (13 & 14 Vict. c. 35) there is a provision for partial relief to executors, enabling them to relieve themselves from responsibility by an order of course, referring it to the Master to take an account of the debts and liabilities affecting the estate ; and in the interview which I had with the late Lord Cottenham upon the subject of that bill, he asked me why I did not extend it to all cases of partial relief; and the answer I gave him was, that I was apprehensive that that extension might be attended with the consequence which I have pointed out, namely, that successive applications might be made to the Court. I did not, at the moment, see the means of guarding against those successive applica- tions, nor did Lord Cottenham ; and we, therefore, both thought it more safe to leave the clause as it stands ; but we both had in view the ex- tension of that clause ; and I think the power of applying to the Court for partial relief may be very usefully extended with proper guards." {Report of 2Ut July, 1851, p. 114.) D 34 JURISDICTION. [Class IIIt 15&16V.C.86. or other instrument to be executed under the direction of the Court, and without taking the account of the trustees or other accounting parties, of ascertaining the particulars or amount of the property touching which the question or questions may have arisen : Provided always, that if the Court shall be of opinion that the application is fraudulent or collusive, or' for some other reason ought not to be entertained, it shall have power to refuse to make the order prayed. Sect. 3. — Accounts (a). Sec. Liv. It shall be lawful for the Court, in any case where any Dixections as to . • i i t\ — 1~~ — - i 1 • accounts and account IS required to be taken, to give such special direc- tion s, if any, a s it may think fit with respect to the mode in (a) On the subject of the mode in which accounts should be taken, the Chancery Commissioners observe, it is plainly impracticable to take accounts in open Court, or before a judge at chambers, without a great waste of judicial time, and we think that they should be taken before an officer of the Court, but not in the mode in which accounts have hitherto been taken in the Master's office. We are of opinion that the system of proceeding to take accounts by charge and discharge, state of facts, and counter-state of facts, should be entirely abolished. We think that an account should be taken in the Court of Chancery in the same way in which it would be taken by any man of business. The accounting party should bring in his account, and should furnish a copy to the opposite party. This account should be gone through, not, as at present, from time to time, and at considerable intervals, but as far as practicable continuously. The accounts should be kept in the office for reference when necessary, and should not be an- nexed to the report in the form of schedules, as is now generally the case, the report stating the results merely, not the materials upon which these results were arrived at. The mode which we recommend of taking accounts is substantially the same as that which has always prevailed with respect to receivers' accounts, and which, as to accounts generally, was recommneded by the Commissioners under the Chanceiy Commis- sion issued in 1826 ; the 61st and 62nd of Lord Lyndhurst's orders of 1828 were directed to this object, but they have been construed as appli- cable only to the mode of bringing in the accounts, and not to the course of proceeding upon them, the consequence of which has been that the practice remains unchanged. It often happens that accounts are directed, extending over a long series of years, or which have been long closed, and when by the loss of evidence from deaths or other accidents, there is very gi'eat difficulty in vouching the accounts. By the strict practice, it is necessary in all cases to prove each item in the account by independent evidence, though there may be no real dispute between the parties as to many of the items. The expense of this course of proceeding, and the hardship to parties. Sect. 2 & 3.] jubisdiction. 35 which the account should be taken or vouched, and such 15&16V.C.86. s pecial directio ns may be given, eitEer by the decree o r order directing such account, or by any subsequent order or orders, upon its appearing to the Court that tlie circiimstances of the case are such as to require such special directions ; and par- ticularly it shall be lawful for the Court, in cases where it shall think fit so to do, to direct that in taking the account especially after a great lapse of time, are very great. In many cases, also, the accounts are so long and complicated, that it is absolutely im- possible to take them judicially, if all the items be questioned and vouched. We propose that the Court should have a discretionary power of giving special directions with respect to the mode in which the ac- count should be taken or voucbed, either at the hearing of the cause, or upon a certificate of the officer before whom the account is taken, that there ai-e special circumstances requiring such directions. In some cases, particularly in partnership and mercantile cases, the books of account might be taken, primA facie, to be correct, but with liberty for the opposite party to challenge the accuracy of any items or particulars in them, and to correct and supply errors and omissions, as is now the practice where liberty is given to surcharge and falsify a set- tled account. It is to be observed that the accounts of executors and trustees, who are the principal accounting parties in the Court of Chancery, essen- tially differ from mercantile accounts. With respect to mercantile ac- counts, there are generally books to which all parties interested have had access, and the transactions are, for the most part, known to both the litigant parties. This is not the case with the accounts of executors and trustees ; the persons who call them to account are commonly igno- rant of the property under their management, and unable without care- ful scrutiny to detect errors and omissions. We think that, in the ab- sence of special circumstances, accounts, especially those of executors and trustees, should be taken before a permanent officer of the Court, but in the improved mode which we have suggested. We think, however, that power should be given to the Court of Chancery to make references to merchants, accountants, engineers, actuaries, and other scientific or professional persons who should be appointed officers of the Court pio hie vice. The practical experience and knowledge of such persons woiJd be of great utility in many cases. {Report of 27tli January, 1852, pp. 34 and 35.) In a subsequent part of their report, the Commissioners, with regard to the taking of accounts, propose that the mode of proceeding by charge and discharge, and states of facts, should be discontinued ; and that the accounting party should bring in his statement of account and furnish a copy to the opposite party, and that it should be at once proceeded upon before the officer, and, as far as practicable, continuously ; and that the account, when settled, should be kept in the office for the purpose of reference, and should not be annexed to the report by way of schedule ; and that the Court should have power to give special directions in cer- tain cases, such as where accounts are directed, after a long lapse of time, in order to obviate the hardship of taking such accounts in strict judicial form ; and that in some cases, particularly in partnership and mercan- tile cases, the books of account should be allowed to be taken as primi facie evidence of the account — p. 43. d2 86 JURISDICTION. [Class III. 15&16V.C.86. the books__of account in which the accounts required to be taken have been kept, or any of them, shall be taken as primd facie evidence of the truth of the matters therein con- tameST lytith liberty to the parties interested to take such objections thereto as they may be advised (a). Where any account is directed to be taken, the accounting party is, unless th e judge shall other wise dire ct, to make out his account and verify the same by affidavit. The items on each side of the account are to be numbered cons ecuti vely, and the account is to be referred to by the affidavit as an exhi bit and to be left i n the judge's c hambers . Any party seeking to charge any accounting party beyond what he has by his account admitted to have received, is to give notice thereof to the a ccounting party, stating so far as he is able the amount sought to be charged and the parti- culars thereof in a short and succinct manner. 16 Oct. 1852 (A). Ord. XXIX. Mode of making out and verifying accounts. Ord. XXX. Mode of Bur- charging. 15&16V.C.86. Sec. LV. Ileal estate may be sold at any time pending suit. Sect. 4. — Sales of Real Estate. [And see Foreclosure Suits, ante, p. 31 ; and Proceedings in the Masters' Office, foit, Class XVIII.] If after a suit shall have been instituted in the said Court in relation to any real estate, it shall appear to the Court that it will be necessary or expedient that the said real estate or any part thereof should be sold for the purposes of such suit, it shall be lawful for the said Court to direct the same to be (o) The power now given to the Court to direct books of account to be taken as ■prima facie evidence was probably conferred upon it in conse- quence of the existence of a contrary practice in the Master's office, sis appears by the evidence taken before the Chancery Commissioners. See their Report of 27th January, 1852, Appendix, p. 100. The exercise of this jurisdiction being discretionary in the Court will obviate the objec- tion of Sir G. Turner, V. C, viz., that the effect of such a power would be that if an executor chooses to enter on his books payments of money, those items may be allowed, and thus the onus will be shifted from the party on whom the law casts it on to a party on whom the law casts none. See his evidence before the Lords' Committee on the Masters' Jurisdiction in Equity Bill, Report of 21st July, 1851, p. 111. (6) These orders take effect and come into operation from and after the first day of Michaelmas Term, 1852, Order 60. For the interpreta- tion of certain words in them, see Order 61, post. Class XVII. note. Sect. 3 & 4.J jurisdiction. 37 sold a t any tim e after the institution thereof, and such sale 15&I6V.C.86. shall be as valid to all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such cause ; and any par ty to the suit i n possession of such estate, or in receipt of the rents_aa.d profits thereof, shall be com- pelled to deliver up such possession or receipt to the pur- chaser or such other person as the Court shall direct. Where an order is made directing any property to be sold, 16 Oct. 1852. unless otherwise ordered, the same is to be sold, with the ap- Mode of sale.' probation of the judge to whose Court the cause or matter is attached to the best purchaser that can be got for the same, to be all owed by such judge, and a ll proper parties are to jointherein as such judge shall direct (a). Before any e state or interest shall be put up f or sale under 15&16V. c.86. a decree or order of the Court of Chancery, an abstrac t of Abstract to be laid the title thereto shall, with the approbation of the Court, be i'^'™^ """"^^ • laid b efore some c onvey ancing counsel (b\ to be approved by the Court, for the opinion ot such counsel thereon, to the intent that the said Court may be the better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest and other matters connected with the sale thereof (c) ; and when an estate or interes'' shall be so put up for sale, a time for the delivery of the abstract of title thereto to the purchaser qx his solicitor shall be speci- fied in the said conditions of sale. (o) This order is applicable to all cases whether originating in cham- bers or not. The direction which it contains is one which has hitherto been inserted in every order for a sale of estates, the judge being now substituted for the Master. For the practice relating to sales before the Masters, see Sudgen's Ven. & Pur. 61 to 91 (11th ed.). (A) By the earlier Act of the same session, c. 80, the Lord Chancellor is empowered to nominate conveyancing counsel, upon whose opinion the Court may act in all the cases therein mentioned, in which, according to the then practice of the Court and of the Master's office, it had been usual for the Master to require or receive the opinion of counsel, and in all such other cases as the Lord Chancellor shall by general order direct. See ss. 40 and 41, ante, pp. 22 and 23. (c) It was one of the duties of the Masters to sell estates directed by the Court to be sold : tbey settled the particulars and conditions of sale, and for that purpose considered the title to the estate, and the necessary limitations and conditions which it might be advisable to impose on pur-, chasers. (Chancery Commissioners' Report of 21th January, 1852, p. 27.) 38 JURISDICTION. [Class III. 15&16V.C.86. Sec. LVII. Court may allow to parties part of personalty, or the whole or part of the annual in- come of realty or personalty. Sect. 5.— Allowance to Parties of Part of the Property in Litigation. Where any real or personal property shall form the subject of any proceedings in the Court of Chancery, and the Court shall be satisfiedjhat t he same vvill be more t han sufficie nt iq^^^ answer all the claims thereon which ought to be provided for i"rrsucli suitj'ft shall be lawful for the said Court at any time after the commencement of such proceedings to allow to the parties interested therein, or any one or more of them, the whole or part of the annual income of such real property, or a part of such personal property, or a part or the whole of the income thereof, up to such time as the said Court shall direct, and for that purpose to make such orders as may appear to the said Court necessary or expedient (a). (o) The Court has in some cases, where it was satisfied that the estate was ample, ordered payments to parties interested, before the accounts were finally taken : for instance, part payment of a legacy was by con- sent ordered in Pearce v. Baron, 12 Ves. 469 ; and see Coffin v. Cooper, there cited p. 460 ; but without consent this was refused in Digby a. Boycatt, 4 Hare, 444. In the last mentioned case, a jointure and several annuities were ordered to be paid, although as to future payments this was refused in Skinner ». Sweet, Coop. 54. Maintenance was allowed in Jervoise ». Silk, Coop. 52 ; and see Coster v. Coster, 1 Keen, 199. And the whole income of the fund was allowed in Dando v. Dando, 1 Sim. 510 J Shewell v. Shewell, 2 Hare, 154 ; but refused, without the con- sent of the executor, in Abby i>. Gilford, 11 Bea. 28. Where accounts are withheld, or the taking of them delayed, an interim allowance will be made. Wear v. Wilkinson, cited 13 Ves. 93 ; but not where the applicant is an accounting party, Warter v. , 13 Ves. 92 ; at all events, without directing an inquiry, Toulmin ■;. Copland, 3 Young & C. Ex. p. 643 ; Skinner v. Sweet, supra. An application made after the Master's report by one of several claimants to portions of an aggregate fund was postponed till the hearing on further directions, Bruce v. Elwin, 9 Hare, 294; and see Spencer v. Mostyn, 11 Jur. 234. In some cases the Court has, upon proper security being given for its replacement, allowed to a party presumptively entitled to the fund a small part of it to enable him to support his right to it in an issue directed by the Court, Gregg i). Taylor, 4 Russ. 279 ; Coombs v. Brooks, 3 DeG. & S. 452 ; and see Perishall v. Squire, 1 Dick. 31, and the cases cited in Nye V. Maule, 4 Mylne & C. p. 344 ; but on the other hand it has been said that this practice has gone too far, and applications of a similar nature were refused in Peck b. Beechey, 2 Sim. 40 ; Nye v. Maule, supra ; and Johnston v. Todd, 3 Bea. 218. Sect. 5 & 6.] jurisdiction. 39 Sect. 6. — Questions of Law (a). It shall not be lawful for the said Court of Chancery, in 15&16V.C.86. any cause or matter, to direct a case to be stated for the sec. lxi. opinion of any Court of common law, but the said Court of stated for opinions Chancery shall have full power to determine any questions ° ^""^8 of Law. of law which in the judgment of the said Court of Chancery shall be necessary to be decided previously to the decision of the equitable question at issue between the parties. (a) "It often happens at thg hearing of the cause, that what is termed a question of law arises, — generally some question on the construction of an Act of Parliament or of a will or deed, as to which it is considered that either party, if he desire it, is entitled to the opinion of a Court of law. And a special case is therefore directed for the opinion of a court of law hefore which the matter is argued ; and if the opinion should not be wholly satisfactory to the Judge in equity, the case is sent to another Court, and sometimes to a third. Instances have occurred in which, after obtainiong opinions from more than one Court of law, the Court of Chan- cery has declined to adopt any of them, and has at last decided upon its own view of the case. " In some cases where the Court entertains doubts as to the alleged right on which the plaintiff's case is founded, it requires the plaintiff in the first instance to bring an action at law for the assertion of his legal right. In these cases the proceedings are wholly under the control of the Court of common law, and the Court of Chancery grants or refuses its assistance according to the result of the proceedings at law, when they have arrived at a final conclusion. "It sometimes also happens that there is a conflict of testimony, so that on the written depositions the Court does not feel itself in a position to come to a satisfactory decision, but thinks it necessary to have the ver- dict of a jury on an issue directed for that purpose. In some cases a party is entitled to an issue as a matter of right, as in the case of an heir-at-law where the will is sought to be established against him. Where an issue is directed, the proceedings are wholly under the control of the Court of Chancery, and any application for a new trial is made, not to the Court of common law, but to the Court of Chancery." (Ch. Comm. Report of 21 Ih Jamuary, 1852, p. 10.) The Commissioners add (/A. p. 24), "A recent enactment [14 & 15 Vict c. 83, s. 8, ante, p. 3] having enabled the judges in equity to ob- tain the assistance of the judges of the Courts of common law in those cases in which they may find it necessary to avail themselvrs of such assistance, we are of opinion that the practice of sending cases for the opinion of Courts of common law should be discontinued. " As regards those cases in which the Court of Chancery declines to act until the plaintifi" has established his right in an action, we think that the duty should be imposed on the Court of ascertaining and de- ciding the questions of law and of fact on which the plaintiff's right depends, using for that purpose where required its power of submitting any question of fact to a jury, by means of an issue. " We trust that the alterations which we have proposed as to the mode of taking evidence in the Court of Chancery, will enable the Court itself to adjudicate in many cases in which issues are now directed." 40 JURISDICTION. [Class III. 15&16V.C.86. In cases where, according to the present practice of the Sec. LXii. Court of Chancery, such Court declines to grant equitable deto^toTiel^' relief until the legal title or right of the party or parties seek- title or right. jj^g g^^j, relief shall have been established in a proceeding at law, the said Court may itself determine such title or right without requiring the parties to proceed at law to establish the same. CLASS IV. PARTIES TO SUITS (fl). 15 & 16 V. It shall not be competent to any defendant in any suit in c. 86(6). the said Court to take any obiection for want of parties to Sec. XLII. . , . , 1 , • /. No objection for such suit, in any case to which the rules next hereinafter set want of parties in - - , , ,ii,i t ii certain cases. forth extend ; and such rules shall be deemed and taken as (o) " In order fully to comprehend the extent of the expense with which proceedings in suits are attended, it is necessary to bear in mind one of the fundamental rules of Chancery procedure, viz. that a suit shall em- brace all parties interested in the result. As for example, if there be a complaint of a breach of trust, all the persons interested in the trust estate must be parties to the suit, and, subject to some modifications made by recent orders, all the persons parties to the breach of trust. It very commonly happens that some of the parties liable have died, and that it is necessary to enforce the claim against their estates, in which case their legal personal representatives, and, if it be necessary to affect their real estates, all persons interested in those real estates, must be made parties. By another rule, if any person joined as co- plaintiff should by any act, or by conduct amounting to assent or ac- quiescence, have disentitled himself to relief, all the co-plaintiffs are bound by it and deprived in that suit of the relief they might otherwise have had ; and it is therefore considered good pleading in such case to have a single plaintiff, and that plaintiff, if possible, an infant, who can- not, by any act or any omission, have prejudiced his right to relief, the other parties interested being made defendants. By these rules and from these considerations it is necessary frequently to have a very large number of persons defendants to a Chancery suit, who may all appear by separate solicitors, and all put in separate answers, and against whom all the proceedings above stated must ordinarily be taken." (Ch. Com. Report of 27th Jan. 1852, p. 8.) (b) " An Act to amend the Practice and Course of Proceeding in the High Court of Chancery." This act received the royal assent on the 1st July, 1852, but takes effect from the 1st November, 1852, s. 67. It contains power for the Lord Chancellor, with the advice and assistance of other judges of the Court, to make general orders, not to take effect Class IV.] parties to suits. 41 part of the law and practice of the said Court, and any law 15&16V.C.86. or practice of the said Court inconsistent therewith shall be and is hereby abrogated and annulled. Rule 1 , Any residuary legatee or next of kin may, without serving t he remaining residuary legatees or next oT kin"'" have a decree for the administration of the personal esta tejof a d eceas ed person^ — — . Rule 2. Any legatee interested in a legacy charged upon real estate , and any person interested in the proceeds of real estate directed to be sold, may, without serving any other legatee or person interested in the proceeds of the estate, have a decree for the administration of the estate of a deceased person. Rule 3. Any r esidua ry devisee or heir m ay, without serving any co-residuary devisee or co-heir, have the like decree. Rule 4. Any one of several cest uisq ue trust under any deedjor instrument may, witli&irinserviil'^any other of such cestuisque trust, have a decree for the execution of the trusts of the deed or instrument. Rule 5. In all cases of suits for the protection of property pending litigation, and in all cases in the nature o f waste, one p erson may sue on behalf of himself and of all persons having the same interest. Rule 6. Any executor, a dministrato r, or trustee may obtain a decree agsmst any one legatee , n ext of kin , or cestiiig[ue trust for the administration of the estate, or the execution of the trusts. Rule 7. In all the abo ve cases the Court, if it shall see fit, may require any other person or persons to be made a party or parties to the suit, and may, if it shall see fit, before the Act, and subject to the approbation of both Houses of Parlia- ment, ss. 63, 64 and 67. And as to the construction of the Act, the words " bill of complaint" are to mean also and include information j the word " affldavit" is to mean also and include affirmation ; and the expression " General Order of the Lord Chancellor" is to mean General Order of the Lord Chancellor with such advice and assistance as afore- said. S. 66. Sect. 60 is as follows : " In case any of the directions herein contained with respect to the practice and course of proceeding in the said Court of Chancery shall by mistake of parties fail to be followed in any suit or proceeding in the said Court, it shall be lawful for the said Court, if it shall think fit, upon payment of such costs as such Court shall direct, to make such order giving effect to and rectifying such proceedings as may be justified by the merits of the case." 42 PARTIES TO SUITS. [ClASS IV. 15&16V.lc.86. givejhe .conduct of the suit to such person as it may — leenTproper, and may make such order in any particular case as it may deem just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question. Rule 8. In all the above cases the persons who, according ry 7f/% a/)?- '° '^^ present practice of the Court, w ould be necessary ^e€J.JCfTcJ?.0^, parties to the suit, shall be served with notice oT the decree, and after such notice they shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit, and they may by an order of course have liberty to attend the proceedings under the decree ; and any party so served may, within such time as shall in that behalf be prescribed by the General Order of the Lord Chancellor, apply to the Court to add to the decree. 7 Aug. 1852 (a )7~"^ — The time within which a party s erved with notice of a °^^' ^ ■ decree under section 42 of the above Act may^aggly^_to the Court to add t o the decree, is to be one mon th (6) after such service. ' Ord. XLI. A memorandum of the service upon any person or persons of notice of the decree in any suit under the said section, rule 8, is to be entered in the office of the clerks of records and writs upon due proof by affidavit of such service. 15&16V.C.86. , Rule 9. In all suits concerning real or personal estate which icmtinued.) is vested in t rustees under a will, se ttlement, or other- // -jiT yy/o^ wise, such trustees shall represent t he persons beneficially jeeu Wttf^.J^, interested under the trust, in the s ame manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons benefi- (a) The Orders of the 7th August, 1852, are to come into operation on the 2nd November, 1852, Order 47. And by Order 48 the following words in these Orders have the several meajiings thereby assigned to , them, over and above their several ordinary meanings, unless there be something in the subject or context repugnant to such construction, viz. : 1. Words importing the singular number include the plural number, and words importing the plural number include the singular number. 2. Words importing the masculine gender include females. 3. The word ' bill ' includes information. 4. The word ' party' includes a body politic or corporate. 5. The word ' affidavit' includes aifirmation. (4) When the time for doing any act or taking any proceeding is limited by months not expressed to be calendar months, such time is to be computed by lunar months of twenty-eight days each. Order 12 of 8th May, 1845. Class IV.] parties to suits. 43 cially interested in such personal estate; and in such cases 15^16V.o.86. it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit; but the Court may, upon consideration of the matter, on the hearing (a), if it shall so think fit, order such persons, or any of them, to be made parties (6). The practice of the said Court of setting down- a cause sec. xliii. merely on an objection for want of parties to the suit shall be cluse?n o^ec- abolished(c). "°''- If in any suit or other proceeding before the Court it shall See. XLiv. appear to the Court that any deceased person who was in- sonai repiesenta- terested in the matters in question has no legal personal re- '™' presentative, it shall be lawful for the Court either to proceed __ ^ . ^ in the absence of any person representing the estate of such /J^-/yOTP^.'Jlli or other instrument, without making the other parties interested iii the property respecting which the ques- tion may have arisen, or interested under the same settlement, will, or other instrument, p arties to the sui t, and without re- q uiring t he whole trusts and purposes of the settlement, will, or other instrument to be executed under the direction of the Court, and without ta king the account s of the trustees or other accounting parties, or ascertaining the particulars or amount of the property touching which the question or ques- tions may have arisen : provided always , that if the Court shall be of opinion that the application is fraudulent or collusive,, or for some other reason ought not to be enter- tained, it shall have powe r to refuse t o make the order prayed. Sec. XLIX. No suit in the said Court shall be dismiss ed b y reason only of the misjoinder of person s as plaintiffs therein, but wherever it shall appear to the Court «that, notwithstanding the conflict of interest in the co-plaintiffs, or the want of in- terest in some of the plaintiffs (a), or the existence of some ground of defence affecting some or one of the plaintiffs, the plaintiffsj or some or one of them, are or is entitled to relief, contained in the order, as to the residuary legatees and their representa- tives, Rogers ». Jones, 20 L. T. 50. (a) This is a very strict rule, and the Court will not accede to thj ob- jection without the greatest possible reluctance, if not made before the hearing of the cause, Pearce t>. Watkins, 16 Jur. 832. Misjoinder. Class IV.] parties to suits. 45 the Court s hall have power to grant such rel ief, and to modify 15&16 V. c.86. its decree, according to the special circumstances of the case, and for that purpose to direct such amendments, if any, as may be necessary, and at the hearing, before such amend- ments are made, to treat any one or more of the plaintiifs as if he or they was or were a defendant or defendants in the suit, and the remaining other plaintiff or plaintiffs was or were the only plaintiflF or plaintiffs on the record (a) ; and where there is a misjoinder of plaintiffs, and the plaintiff having an interest shall have died leaving a plaintiff on the record without an interest, the Court may, at the hearing of the cause, order the cause to stand revived (6) as may appear just, and proceed to a decision of the cause, if it shall see fit, and to give such directions as to costs or otherwise as may appear just and expedient. (a) It would seem, therefore, that in the cases contemplated, that is to say, a conflict, or want of interest in plaintiffs, or a ground of defence affecting some of them, the Court may at the hearing direct an amend- ment hy striking out the names of co-plaintiffs and making them de- fendants. The cases in which the Court has allowed such amendments are, where there has been a conflict of interest, Flunket v. Joice, 2 Sch. & L. 159, in which the plaintiff whose name was so struck out was an infant ; Small v. Attwood, 2 Young & J. 512 ; and Hart v. Tulk, 6 Hare, 612. The cases of want of interest are, Lloyd v. Makeam, 6 Ves. 145 ; Sloggett V. Collins, 13 Sim. 456 ; and Jones v. Rose, 4 Hare, 52 j but in these cases the plaintiffs whose names were struck out were not made de- fendants. There existed a ground of defence as to some of the plaintiffs in Aylwyn v. Bray, 2 Young & J. 518, n., and Bather v. Kearsley, 7 Bea. 545. But the Court will not allow such an amendment unless it appears either that without the alteration justice will not be done, or that the suit cannot be conveniently prosecuted if the alteration be not made, Attorney-General v. Cooper, 3 Mylne & C. 258. In these cases it is generally one of the terms of the order that security should be given for the costs of the suit either by bond or payment into Court of a sum of money to be approved of by the Master, Fellowes v. Deere, 3 Bea. 354. (6) As to revivor see post, Class XXI. ( 46 ) [Class V. CLASS V. BILLS (a) AND CLAIMS. Sect. 1. — Form {f Bills, and Printing and Filing Bills and Claims. 2. — Service of Bills and Claims. S. — Amended Bills and Ckrnns, and Service thereof. Contents of bill. [And as to Claims, see also post, CLASS XXIV.] Sect. 1. — Form of Sills, and Frivlmg and Filing Bills arid Claims. Every bill of complaint to be filed in the said Court after c. 86((»). ' the time hereinafter appointed for the commencement of this ic. X. Act shall contain as concisely as mt^^^hea. narrative of the ma- te rial fact s, matters and ci rcumstances on which the plaintiff relies, such narrative being divided int o par a gra phs numbered c onsecut ively, and each p aragraph con ^ning , as nearly as may be, a se parate and distinct statement or allegation , and shall pray specifically f or the r^ief w hich the plaintiff may conceive himself e ntitled to , and also f or general relief ; but such bill of complaint shall not contain any interrogatories for the examination of the detendant. (a) The practitioner will bear in mind that in the construction of the 15 & 16 Vict. c. 86, and in the General Orders of 7th August, 1852, the word "bill" includes " information." See ante, pp. 40 and 42, notes (6) and (a). The practice of excepting to bills and informations for impertinence is now aboli^ed, and the Court may direct the costs occasioned by imper- tinent matter to be paid by the party introducing the same. IS & 16 Vict. c. 86, s. 17, vost, " Costs." (fc) For the title and time of commencement of the Act, and a pro- vision in cases of mistakes in the practice thereunder, and for the inter- pretation of certain words therein and in the General Orders of the 7th August, 1852, made in pursuance of the Act, see ante, pp. 40 and 42, notes {b) and (o). Sect. 1.] bills akd claims. 4,7 Bills maybe in a form similar to the form set out in schedule 7Aug.l852(a). (B) to these orders, with such variations as the nature and — ord. xiv. — circumstances of each particular case may require. Form of bm. In Chancery. SCHEDULE (B). Form of Bill, John Lee .... Plaintiff. James Styles •\ and J . . Defendants. Henry Jones J Bill of Complaint. To tlie Right Honorable Edward Burtenshaw, Baron St. Leonards, of Slaugham, in the county of Sussex, Lord High Chancellor of Great Britain, Humbly complaining, sfaoweth unto his lordship, John Lee, of Bedford- square, in the county of Middlesex, Esq., the above-named plaintiff, as follows : — 1. The defendant, James Styles, being seised in fee simple of a farm called Blackacre, in the parish of A. in the county of B., with the appurtenances, did, by an indenture dated the 1st of May, 1850, and made between the defendant James Styles of the one part, and the plaintiff of the other part, grant and convey the said farm, with the appurtenances, unto and to the use of the plaintiff, his heirs and assigns, subject to a proviso for redemption thereof, in case the de- fendant James Styles, his heirs, executors, administrators, or assigns, should, on the 1st of May, 1851, pay to the plaintiff, his executors, administrators, or assigns, the sum of 5000A, with interest thereon at the rate of 51, per centum per annum, as by the said indenture will appear. 2. The whole of the said sum of 5000/. together with interest thereon at the rate aforesaid, is now due to the plaintiff. 3. The defendant, Henry Jones, claims to have some charge upon the farm and premises comprised in the said indenture of mortgage of the 1st of May, 1850, which charge is subsequent to the plaintiff's said mortgage. 4. The plaintiff has frequently applied to the defendants, James Styles and Henry Jones, and required them either to pay the said debt, or else to release the equity of redemption of the premises, but they have refused so to do. 5. The defendants, James Styles and Henry Jones, pretend that there are some other mortgages, charges, or incumbrances affecting the premises, but they refuse to discover the particulars thereof. 6. There a'e divers valuable oak, elm, and other timber and timber- (o) See ante, p. 42, note (a). 48 BILLS AND CLAIMS. [ClASS V. 7 Nov, 1852. like trees growing and standing on the farm and lands comprised in ~~~ the said indenture of mortgage of the 1st of May, 1850, which trees and timber are a material part of the plaintiff's said security ; and if the same or any of them were felled or taken away, the said mort- gaged premises would be an insufficient security to the plaintiff for the money due thereon. 7. The defendant, James Styles, who is in possession of the said farm, has marked for felling a large quantity of the said oak and elm trees and other timber, and he has, by handbills, published on the 2nd of Becember instant, announced the same for sale, and he threatens and intends forthwith to cut down and dispose of a considerable quan- tity of the said trees and timber on the said farm. Prayer. The plaintiff prays as follows : — 1. That an account may be taken of what is due for principal and interest on the said mortgage. 2. That the defendants, James Styles and Henry Jones, may be decreed to pay to the plaintiff the amount which shall be so found due, together with his costs of this suit, by a short day to be appointed for that purpose, or, in default thereof, that the defendants, James Styles and Henry Jones, and all persons claiming under them, may be absolutely foreclosed of all right and equity of redemption in or to the said mortgaged premises. 3. That the defendant, James Styles, may be restrained by the injunction of this honourable court from felling, cutting, or disposing of any of the timber or timber-like trees now standing or growing in or upon the said farm and premises comprised in the said indenture of mortgage, or any part thereof. 4. That the plaintiff may have such further or other relief as the nature of the case may require. Names of defendants. The defendants to this bill of complaint are — James Styles, Henry Jones. Y. Y. (name of counsel.) Note. — This bill is filed by Messrs. A. B. and C. D., of Lincoln's Inn, in the county of Middlesex, solicitors for the above named plain- tiff(o). (a) Bills and informations must also be indorsed with the names or firms and places of business of the plaintiff's solicitors and agents, or of the plaintiff himself, if suing in person ; and also (if more than three miles from the Record and Writ Clerks' Office) with an address for service not more than that distance. Orders 17 and 20 of 26th October, 1842. Sect. 1.] bills and claims. 49 That in all informations or bills to be marked under the 290ct 1851(n). first Order of the 5th day of May, 1837(6), with the words ord. ii. " Lord Chancellor," the plaintiff shall, underneath the words marked l.c. the "Lord Chancellor," write the name of one of the Vice- SeTri?fen?'' ''^ "" Chancellors at his option, and the cause shall thenceforth, unless removed by some special order of the Lord Chancellorj be attached to such Vice-Chancellor's Court. Before the name of any person shall be used in any suit to 15&16V.C.86. be instituted in the said Court as next friend of any infant, written authority married woman, or other party, or as relator in any informa- °l^^oT. '"™'' ™ tion, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill, information, or claim.' From and after the time herein-after appointed for the com- See. i. . - . Bills and claims mencement of this Act, the practice of engrossing on parch- to be printed. ment bills of complaint or claims to be filed in the said Court, and of filing such engrossment, shall be discontinued ; and the clerks of records and writs of the said Court shall receive and file a printed(c) bill of complaint or claim, in lieu of an engrossment thereof, in like manner as they now receive and file such engrossment (d). Bills and claims are to be printed on writing royal paper, 7 Aug. 1852. quarto, in pica type, leaded ; and the copy to be filed is to be Mode of printing. interleaved with paper of the same description (e). The filing of a printed bill of complaint or claim in the 15&16V.C.86. said Court shall have the same effect as the filing of a bill of (sxirad) complaint or claim in the same Court, and the issuing of a Effect of filing. subpoena or writ of summons thereon respectively, now have(rf). Notwithstanding the provisions herein-before contained, the Sec. vi. , , „ ■,,.,., .,,-, • J Written bills may clerks of records and writs ot the said Court may receive and be filed under certain circum- ■ — — stances. (a) Order 1 of the 11th November, 1841, was discharged by Order 1 of the 2nd November, 1850 ; and again by Order 1 of the 29th Oct. 1851. (6) By this order of the 5th May, 1837, it was ordered that every original information or bill should, at the option of the party by or on whose behalf the same should be filed, be distinctly marked at or near the top or upper part thereof, either with the words "Lord Chancellor," or with the words " Master of the Rolls ;" and that the clerks of records and writs should not file any original information or bill of complaint which should not be so marked. (r) A slight alteration (for instance, the transposition of a name)jmay be made in MSS., Yeatman v. Moulsey, 16 Jur. 1004. (d) See infra, p. 50, note (a). (c) Ibid, note (*). E 50 BILLS AND CLAIMS. [ClASS V, 15&16 V.C.86. file a written copy of any bill of complaint praying a writ of injunction or writ of ne exeat regno , or filed for the purpose either solely or among other things of making an infant a ward of the s aid Court, upon the pe rsonal undertaking o f the p laintiff or his solicitor to file a printed c opy of such bill w ithin fourteen days, and every bill of complaint so filed shall be deemed a nd taken to have been filed a t the time of filing the written copy thereof; and a written copy of any such bill of complaint stamped as aforesaid and with such i ndorsemen t thereon as aforesaid may be served on any de- fendant thereto, and such service snail have the same effect astne service of' a. printed copy (a). 7 Aug. 1852. No costs a re to be allowed, either as between party and CoBts°ormritten party, or as Ibetween solicitor and client, for any written bill Mis and copies. ^^ written copy of a bill, filed under the 15th and 16th Vict. c. 86, s. 6, or tor any written copy thereof, served upon any defendant thereto, or for any written brief of such bill, unless • the Court shall , in disposing of the costs of the cause, direct t lie allowance^h ereof (6\ ord. III. Tlie clerks of records and writs shall, at the expirat ion of notfiiSgaprLted fourteen days from the filing o f any wri tten bill or written °°^^' copy of a bill, " talte^ff the files of the Court, without further order, t he bill o r copy so filed, u nless a printe d copy thereof shall in the meantime have been filed, and the pl aintiff in the suit, or his solicitor^ who shall personally have undertaken to file such printed copy, s hall pay t o the defendant a ll the costs incurred by him in the suit, such costs to be taxed by the Taxing Master, without further order, upon production to him of the certificate of the clerk of records and writs, that a printed copy of the bill has not been filed pursuant to such (a) By s. 9 of the Act the Lord Chancellor is empowered to make from tim« to time any order or orders directing that the provisions therein- before contained ({. e. in ss. 1 to 8), as to printing or otherwise, shall be discontinued or suspended until further order, and to direct that all or any of the then practice as to the filing of bills and claims and the issuing and service of subpoenas and writs of summons may be revived and come into operation as if this Act had not passed. (6) By Order 12 of 7th August, 1852, it was ordered that none of the preceding orders (i. e. Orders 1 to 11 of that date) are to apply to bills or claims filed before the orders of August, 1852, came into operation (viz. 2nd November, 1852), though afterwards amended, and that the existing practice of the Court is to continue in force with reference to the amendment of such bills and claims. Sect. 1 & 2.] bills and claims. 51 undertaking, and to be recoverable in like manner as costs 7 Aug. 1852. ordered to be paid by a party in a suit to another party in a ~~~~" suit are now recoverable (o). (a) See note (5), supra, p. 50. The mode in which costs are recoverahle at the ii^tanceoiand against p arties to the record, is by subpcena and attachment ; ana w here costs a re directeg to be paid by aiTtifder, diey mai?T?recovered by nen tacias or eleg it, under the orders of fOtFi May, 1839. Where plaintiffs a re decreed to pay a defendant t he c osts of a sujl, the d efendant m ay either proceed against all the plaintiff s or sel ect any one or more of them, and wBefe* defendailtS itife drJefeJ to^ay costs, the plaintiff has a similar power ot selection. 'Jliie T axing TCT aster hav ing certifie d the amount of the costs, and his c ertificat e having been filea, the partv to whom the costs are directed to be paid i ssues a subpcena for the costs as taxed, which are made payable to such party or to the bearer of the subpcena. The su bpcena is served p ersonal ly and the c ostsTmiliailde d, but as they are made payable to ine bearer of the subpcena as well as to the party, it is not necessary either that the party to whom they are directed to be paid by the order should demand them, or that he should authorize the bearer to do so by power of attorney. On an affid^vi^jji f the p ersonal service of the subpoena, and of demand and n on-pavmpn tT an att achment issues without order. The attachment is d irected to the sheriff in the usual way. It is not bailable , and if the d efendant is t aken h e is co mmitted to the county gaol, and the sheriff returns accordingly, and the party to receive trie costs moves for a habeas to bring him up, and, when Drought up, moves tha t h"e rtiSJr be tUrneVT over to the Queen's Prison , and is entitled o n his committal to the prison to a sequestration, w hich is granted on a m otion as o i course . If the attachmen t is returned 7ion est inventus, the party prosecuting the contempt may proceed to a se rjeant-at-arms , and on the return of the se rieant-at-arm s. to a s equestration . To reco v e r costs against a peer or a mein be^)f t he House of Cpm- mons, either may be p ersonally servea with a subpoena ; and upon failing to pay, a nd on an affidavit ot personai s g jjjfi ^ thereof and of non-pay- m^ELlhe party entitled' JEo't^e costs obtains an order nisi for a sequestra- tion on a motion as of course; and upon an affidavit of personal. service of such order, it is a motion as oTcourse to make the s ame abs olute, un- l.ess cause is shown._ ' LJosts are ' recoverabl e against a corporation by subpoena , and on de- fault o t payment the corporation is proceeflea against in the"same manner as to compel payment of a sum of money found due from them and or- dered to be paid j that is to say, on an affidM^t . of servic e, a distringas is made out by the solicitor and sealed by the (Jlerk of Records and Writs. If the sheriff returns nulUi liana an a lias distringas and then a.pluries distringas i s issued, ana'il' the sheri ff again r eturns n ulla bona a seques- ffation IS ordered upon a motion as W course. If the sneriti returns ""issues 40s." to the first distringas, or issues in the increased amount to either of the subsequent writs of distringas, a sequestration nisi is or- dered, Smith's Handbook, 372, 378 ; and see Andrewes v. Walton, 1 Mac. & G. 380. 51a SERVICE OF BILLS AND CLAIMS. [CtASS V. Sect. 2. — Service of Bills and Claims. 7 Aug. 1852. The existing practice of the Court with reference to issuing Ord. XIII. and serving writs of subpoena to appear to and answer bills daimBflie/°eft)re ^""^ writs of Summons on claims (a) is also to continue in force 2nd Nov. 1852. ^jjjj respect to bills and claims filed before these orders come into operation. 15&16V.C.86. The writ of subpoena to appear to and answer a bill of com- Writs^of'subpeena plaint in the said Court, and the writ of summons upon a aboiih""™' claim, shall respectively be abolished (6). Sec. III. In lieu of serving tbe defendant to a bill of complaint in Service of bill and ,, . , ,^ .? • ^ i ^ claim with in- the said Court with a writ oi subpoena to appear to and answer the same, and in lieu of serving the defendant to a claim in the said Court with a writ of summons upon such claim, in the mode and according to the practice now adopted in the said Court with reference to such writs respectively, the defendant sh a ll be served with a printed bill of complaint or claim, with an i ndotsemenj; thereon 'in the i'orm orto the e3ect~set out in the schedule to this Act, with such variations as circumstances may require(c) snrh prin to>1 KHI of complaint or claim so to be served being previ ously stamped with a proper stamp by o ne of the clerks of records and writs, in- dicating tbe filing of such bill of complaint or claim, and the date of the filing thereof (6). (o) For the practice as to issuing subpoenas see Smith's Handbook, 108, except that the duties of the Subpoena Office are now executed by the Clerks of Records and Writs, IS & 16 Vict. c. 87, s. 28, ante, p. 29. As to the service of writs of subpoena see note (d), injf^ra, p. 52 ; and as to writs of summons, the mode of service was by Order 10 of 22 April, 1850 (post, p. 151), to be subject to the same rules as writs of subpoena to appear to and answer bills. (6) See note (a), supra, p. 50. (o) It is not necessary that in every case the indorsement should be printed, Sharpe i). Blondeau, 20 Law T. 154. The form of indorsement given in the schedule is applicable to all ordinary cases where the de- fendants are within the jurisdiction. If the defendants are out of the jurisdiction, and it is necessary to obtain an order of the Court fixing special terms of service, the indorsement may be altered and the time fixed by the Court inserted instead of the eight days, or such other va- riation made as the circumstances may require, Chatfield v. Berchtoldt, 9 Hare, App. xxviii. ; Baynes v. Ridge, ib. xxvii. The alteration may be made after service, Sharpe v. Blondeau, supra. Sect. 2,] service of bills and claims. 515 . SCHEDULE. Form of Indorsement on BUI of Complaint. 15& I6 V.c.86. Victoria R. schedule. To the withm-named defendant, C. D., greeting. ment on biU. We command you [" and every of you," where there is more than one defendant^, that within eight days aft er service h ereof on you, exclusive of the day of such service, you cause an appearan ce to be entered for you in our High Court of Chancery to the wittin till of complaint of the Vfithin-named A. B., and that you observe what our said court shall direct. Witness ourself at Westminster, the day of , in the year of our reign. Note. — If you fail to comply with the above directions you will be liable to be arrested and imprisoned. Appearances are to be entered at the Record and Writ Clerks' 0£Sce, Chancery Lane, London. Form of Indorsement on Claim. Victoria R. To the within-named defendant, C. D., greeting. We command you [" and every of you," where there is more than one defendant^, that within eight days after service hereof on you, exclusive of the day of such service, you cause an appearanc e to he entered for you in our High Court of Chancery to the within claim of the within-named A. B. ; and further, that on the fourteenth day .after the .service h ereof, or on the seal or motion d ay then next following, you do pers onally or by counsel a ppear in the Court of our Lord Chan- cellor before the Vice-Chancellor [naming him'] [or, in the Court of our Master of the Rolls], at ten of the clock in the forenoon, and then and there show cause i f you can why t he said A. B. should not h ave such relief a gainst you as is within claimed, or why s uch order as 1 not be Oil sh all b e just with reference to the claim sh ould not be mad e. Witness ourself at Westminster, the day of , in the year of our reign. Note. — Appearances are to be entered at the Record and Writ Clerks' OflSce, Chancery Lane, London, and if you neglect to enter your appearance, and either personally or by your counsel to appear in the High Court of Chancery at the place and on the day and hour above- mentioned, you will he subject to such order as the Court may think fit to make against you in your absence for payment or satisfaction of the said claim, or as the nature and circumstances of the case may require. The like on claim. 52 SERVICE OP BILLS AND CLAIMS. [ClASS V. 15&16V.C.86. Sec. IV. Effect of filing, and service of printed, bill or claim. Sec. VI. {Extract.) The like of writ- ten MI. See. V. Mode of service. The filing of a printed bill of complaint or claim i n the said court shall have the same^fFect as t he filing of a bil| of complaint or claim in the same Court, anci the rssu'ing or a subpoena or writ of summons thereon respective'ly now Kav"e,"and t he"sem^e ''u'pon"thedefenaant of a printed bill of complaint or of a claim so filed, with such i ndorsement^there- on, so stamped as aforesaid, shall have the s ame effect as the service on him of a writ of subpoena or writ of summons r e- spectively now has, and shall e ntitle the plaintiff in such suit to such reme dies for default ofTapgearance and otherwise as he is now entitled to in case of due and proper service of a subpoena to appear to and answer a bill of complaint or of a writ of summons upon a claim (a). A written copy of any such bill of complaint (6), stamped as aforesaid, and with such indorsement thereon as aforesaid, may be served on any defendant thereto(c), and such service shall have the same effect as the service of a printed copy (a). The service upon any defendant of a printed copy of a bill of complaint or of a claim in the said Court shall be effected in the same manner as service of a writ of subpoena to appear to and answer a bill of complaint is now effected(d), save only (a) See antey p. 50, note (a), (6) That is to say, the written bill mentioned in the former part of this section, for which see supra^ p. 49. (c) Leave will now be given, without an affidavit of merits, to serve a bill for an injunction to restrain an action at law, upon the attorney for the plaintiff at law, the plaintiff himself being out of the jurisdiction. Sergison v. Beavan, 16 Jur. 1111. (rf) Ser y i ce o f a sutooena is now effected either by d elivering a copy of the w rit an3 of tne indorsement thereon, and at the same time jiro- ducing f Seori ginal wr it, or, in cases where a subpoena might formerly have been served by leaving the body thereof at the party's dwelling- house or otherwise than personally, it is sufficient to leave a copy of such subpoena in the same manner, producing the original writ to the person with whom such copy shall be so left. Order 4 of 21st December, 1833 ; and as service at the dwelling-house of a defendant of a subpoena to appear and answer was in all cases good service, it is of course unneces- sary to serve such a subpoena personally, 1 Smith, Pr. 115, 2nd ed. j Bickford v. Skewes, C. P. Coop. 441 ; Steele v. Plomer, 2 Ph. 782, n. (a). Service is good at the residence of a defendant who is abroad at the time, Thomas v. Earl Jersey, 2 Mylne & K. 398 ; Davidson v. Marchioness of Hastings, 2 Keen, 509 ; and it is no objection to the service that the copy of the writ is inclosed in a sealed letter, Earl Chesterfield v. Bond, 2 Beei. 263 ; but the mere sending of a letter inclosing the copy writ, the receipt of which was acknowledged by the defendant, is insufficient, Gathercole v. Wilkinson, I De G. & S. 681. If the subpoena includes a Sect. 2.] service of bills and claims. 53 that it shall not be necessary to produce the original bill or 15&I6V.c.8fi. claim, which will be on the files of the Court ; provided that hii!}hai[^fl anH wife, service upon him is good service upon both, 1 Turn. & Ven. 106 ; Steele v. Plomer, 2>S.''7ia,'n.l?yr Bul: inKe "smTrelateg. to her separate estate , s he m ust be jerved also, Jones ». HarFisTTTea!' 486 ; ana s ervice upon her alonel s sufficTenTiT' the h usband cannot b e made amenaoie to the process of the Court, Dubois v. Hole, a Vern.OTS ; Bell V. Hyde, Free. Ch. 328. Service upon a n infant d efendant is effected in the same manner as upon an adult, 1 Daniel, ft. 413, 2nd ed. ; and service against a corporation must be made upon one of its members, Hinde, 87. A subpoena against a prisoner in actual custody may be served upon the keeper of the prison, 1 Turn. & Ven. 106 ; but if on a criminal charge, not without lea ve. Anon. Mos. 237 ; see, however, JN ewenham v. Pemberton, 2 CJoIl. St. Service on a Sunday is irregular, Mackreth ». Nicholson, 19 Ves. 367. Service of the subpoena is also irregular if the copy served, has not the indorsement required by the orders of the Court, Johnson ». Barnes, 1 De G. & S. 1 29 j and the ser^ vice is of ng validity if not made within twelve weeks after the teste of 'the writ, UMer Ife'-of 8th May, lifib. Ai-T t. " The altiffavi't nf^grv'iqa must stat e when, where, h ow and by whom th e s ervice was effected . Order 34 of 8th May, 1845; Bic^Jord u.Skewes, 9 Sim. 428, and that the copy served contained the indorsement. Lord Jersey v. Jenkins, 1 C. P. Coop, 441 ; and see Rigg v. Wall, ih. and 3 My. & Cr. SOS. The foregoing cases relate only to ordinary service and within thejuris- diction of the Court ; but a subpoena to appear and answe r may also be served out of the j urisdiction u pon certa in cond itions ; and in certain casea,the Court will airect suostituted' s ervice, wliich will form the suo- ject of the next note. ^ With respect to service out of the jurisdiction, by Order 33 of 8th May, iJ&/l/J%,QJ^ 1845, it is provided, that where a defendant in any suit is out of the ^^ ^ _j, CI jurisdiction of the Court, " 1. The Court, upon application supported by ^CJv'^i--v€t.%r" such evidence as shall satisfy the Court in what place or country such defendant is or may probably be found, may order that the subpoena to appear to or to appear to and answer the bill, may be served on such defendant in such place or country or within such limits as the Court thinks fit to direct. 2. Such order is to limit a time (depending on the place or country within which the subpoena is to be served) after service of the subpoena within which such defendant is to appear to the bill, and also (if an answer be required) a time within which such defendant is to plead, answer or demur, or obtain from the Court further time to make his defence to the bill. 3. At the time when such subpoena shall be served, the plaintiff is also to cause such defendant to be served with a copy of the bill, and a copy of the order giving the plaintiff leave to serve the subpoena. 4. And if upon the expiration of the time for appearing, it appears to the satisfaction of the Court that such defendant was duly served with the subpoena, and with a copy of. the bill and a copy of the order, the Court may, upon the application of the plaintiff, order an appearance to be entered for such defendant." This order gives the Court a discretion, according to the circumstances of the case, to permit such service in any suit whatever, Whitmore v. Ryan, 4 Hare, 612 i Blenkinsopp ». Blenkinsopp, 2 Ph. 1 j and for a case in which it was held that the discretion of the Court was properly exercised, see Lewis ». Baldwin, 11 Bea. 153; the evidence in support of the application is also in the discretion of the Court, Blenkinsopp u. Blenkinsopp, miira; S.C. 1 Coop. Rep. tern. Cottenham, 20. It is not necessary that the order should specify the particular place for service, S. C. 8 Bea. 612, or limit the time for demurring alone, ib. ; and Brown v. Stanton, 7 Bea. 582 ; * Preston v. Dickinson, ib. note. The Court will not allow service upon a 54 SERVICE OF BILLS AND CLAIMS. [ClASS V. 15&16V.C.86. the Court shall be at liberty to direct substituted service (a) of such printed bill or claim, in such manner and in such cases as it shall think fit (b). father to be good service upon his infant children also, Jones v. Geddes, 9 Jur. 1002 ; but service upon a husband for himself and wife, as in ordinary cases, will warrant the entering of an appearance by the plain- tiff for the wife for whom the husband had not appeared, Steele v. Plomer, 2 Ph. 782, n. (a). _ (a) SubgtJtjjtjBi service of subpoena to appear and answer will be AaifTjl-i^/^g ■ alloweAin proper cases where the defendants are either out of the juris- '^^^ diction or cannot be found. The cases in which such service has been allowed are : upon the partner of a defendant abroad . Carrington v. Can- tillon, Bunb. 107 ; Coles v. (jurney, 1 Madd. 1877 Kinder v. Forbes, 2 Bea. 503 j and see Lane v. Hardwicke, 5 Bea. 222 ; Snow v. Hole, 10 Law J. (N. S.) 178: upon the mother of infant defendants whom she has secreted . Smith v. Marshall, 2'^Atk. VO: and upon the father-in-law oi an iniant> ' xhompson v. Jones, 8 Ves. 141 : so seryicej may be s ubstituted tiy send ing the w rit, a ddress ed to the defendant undercover, to apersonjo whSfflTrejiasjIirected Jn 3"letter^ ^ besent Hunt ii".~Eever, 5 Ves. 1^7 : or upon the pr^ ^rs, who were also agents of the defendant, English vT Hencfrick, 6 JVl'aX'205 : upon a co-aet'en5an t. the son ot ai^i admini^ strator w ho was abroad, t he son having t aken out tHs'TeEVers of"adm> nistration aS attorney, anJ received the rents, Weymouth v. Lambert, 3 Bea. 333 ; and see Hales v. Sutton, 1 Dick. 26: on a person to whom the defendant out of the jurisdiction had given special authority to act as his agent with respect to the prn pgrty iir q] ,) ggfinn. Hobhouse ». Courtneyi iz oim. 140 ; Hyde v. I'orster, 1 Dick. 102: so on the person who had acted as the defendant's solicitor relating to the matters in question. Cooper v. Wood, S Bea. 391 ; jkornby v. Holmes, 4 Hare, 306 ; Bankier v. Poole, 3 De G. & S. 375 ; but see Rickcord v. Nedriff, 2 Mer. 458 ; Webb ». Salmon, 3 Hare, 251 j Bond v. Duke of Newcastle, 3 Brown, C. C. 386; Cope v. Russell, 11 Jur. 463 ; and Hurst ». Hurst, 1 De G. & S. 694. Service will n^tJ) e allow ed on the g eneral agent of a person abroad. Smith v. Hibernian (Joal TCompany, 1 'Iscn. ic L. iihs, overruling Hales v. Sutton, and Carter v. De Brune, 1 Dick. 26, 39 ; but whether, u p on soli (:Ji[pr ^ who had appeared fora defmdant to a former bill, quare, I' ' " ' ~' -___ , quarei JNoad v. Backhouse, 2 Young & C. C. C. 529; but . it ha s been ordere d upon a person to whom the defendant has given a special authority IB act i n the suit, Murray ». Vipart, 1 Ph. 521 ; Willans V. TSBffinfHfHnde, 90, cmira : so service of a subpoena to answer a bill of revivor upon the solicitor who had appeared to the original bill, the defenaant having gone aoroad, Norton v. Hepworth, 1 Mac. & G. 54 ; Henderson D. Meggs, 2 Brown, C. C. 127, contra. It has been allowed upon the defen dant's w ife who stated that she did not know where her husband wSs, Kaker «. Anthony, 14 Bea. 26 : so on the wife in receipt of the rents, the husband being abroad, Carwardine i>. "Wishlade, iS" Jur. 913 ; but as to service on a wife generally, see Thomas v. Selby, 9 Bea. 194. TflSTStffTISas'also a digI!PSB8BSiyTST)'S»OTin the suits men- tioned in the 2 & 3 Will. 4, c. 33, and the 4 & 5 Will. 4, c. 82, to direct that the service upon the receiver, steward, or other person receiving or remitting rents, shall be deemed good service of the party ; and further, to order substituted service in such suits when a defendant cannot be found, and there is ground for believing that he is avoiding service. See ES. ] and 2 of the last-mentioned Act Applications for leave to substitute service may be made ex parte. See Skegg v. Simpson, 2 De G. & S. 454, and the cases mentioned in the note to that case at pp. 456, 457 ; and Danford v. Cameron, 8 Hare, 329. (6) See ante, p. 50, note (a). Sect. 2 & 3.] service of bills and claims. 55 The plaintiff in any suit to be commenced in the said Court 15&16V.C.86. after the time hereinafter appointed for the commencement of sec. vii. this Act shall be bound t o^deliver to the defendant or his fotS»t.°^*'' solicitor, upon applicatio n lor the samers uc^li aTlmmbe r of p rinted copies of his bill of complaint or claim as he shall have occasion for, upon being pai d for the same at such rate as shall be prescribed by any general order of the Lord Chancellor in that behalf (a). No defenda nt shall be, at liberty to demand from the plain- 7 Aug." 1852. tiff more than ten printed copies of his bill orclaim (6). Numterof copies. The payment to be made by the defendant to the plaintiff „ Ord. v. , , ^ Payment for for printed copies of the bill or claim shall be at the rate of copies. one halfpenny per folio j[6). Sect. 3. — Amended Bills and Claims, and Service thereof. [As to special applications for leave to amend, see proceedings in the Judges' chambers, post, CLASS XVII.] Upon the amendment (c^ of any bill of complaint or claim 15&16V. c.86. to be filed in the said Court after the time hereinafter ap- ProTisions as to pointed for the commencement of this Act, the p rovision s S™iafias,and hereinbefore contained with respect to filing and serving and °^' "' deliverin g p rinted copies thereof shall, so far as may be, extend and be applicable to the bill or cl aim as a mended : Provided that w here, according to the present practice of the said Court, a n amendment of a bill or claim may be made without a new engrossment thereof (rf), or under such other (a) See ante, p. 50, note (a). (A) Ibid, note (6). (c) It will no longer be necessary to file a supplemental bill for the purpose only of stating or putting in issue facts or circumstances which may have occurred after the institution of any suit ; but such facts or circumstances may be introduced by way of amendment into the original bill if the cause is otherwise in such a state as to allow of an amendment being made in the bill, 15 & 16 Vict. c. 86, s. 53, post, Class XXI. And as to the power of the Court to amend in case of misjoinder of plaintiffs, see ib., s. 49, ante, p. 44. (d) In all cases where the amendments do not exceed t wo folios ^80 words) in any one place, a n ew enffl'ossment Will "o^'be re iySireS^;. but if the amendments are m ore exte nsive^ or the bill has been so often aniendeJihit thVamendmeilfS lU Uh iusimed, although under two folios. 56 15&16V.C.86. 7 Aug. 1852. Old. VII., Mode of amend- ment. Ord. VIII. Amending copy bill abolished. Ord. IX. Service on de- fendant or bis so- licitor. Ord. X. Service of bill on solicitor. Ord. XJ. On defendant in person. AMENDED BILLS AND CLAIJJS, AND SEKVICE THEREOF. [ClASS V. circumstances as shall be p res cribed by any general order of the Lord^hancellOT"in that behalf, a bill or claim m ay be wholly or part ially amended ^ by w ritten alterations in the p rinted bill, of complaint or claim so to be filed as afore- said (o). Where, according to the present practice of the Court, an amendment of a bill or claim may be made without a new engrossment thereof, a bill or claim may be a mended by written alterations in the printed Dili, of complaint or claim so to be filed, and by additions on the paper to be interleave d therewith, according to the directions of Order 1 (6). The practice of amending a defendant's copy of the bill shall, with respect to\he amendment of bills filed after these orders come into operation, be abolished ( 6). A CORY of an am ended bill o r claim, whether upon an amendment by a reprint, or by such alterations and additions as mentioned in Order 7, is to be served u pon the defend ant or his solicitor ; and s uch cop y may be p artly printed and partl y written , if the amendment is n ot made by a reprint ; but in every case the copy to be served is to be stamped with tfi'e'pr operstamp by one of the clerks of records and writs, in dicating the filiflg. of such amended bill or claim, and the date of the fil ing thereo f CM. ~ In all cases wher e, according to the present practice of the Court, a subpoena to appear to and to answer an amended bill may be served upon the solicitor of a defendant (c), serviceupon the defendant's solicitor 61 a copy o'i'an~araended bill, whether wholly "printed ,"^r partly printed "and partly written, shall be good service on the defendant (d). Where a defendant has appeared in person to any bill, s ervice at the address for service o f such defendant of a copy of an amended bill, whether wholly printed, or partly printed and partly written, shall be good service on the defendant (<2). cannot be interlined upon the record, or, a re so considefrab^ ^ to blot an d , 4ef?S P- th e record, it should be taken off tlie ni e, and a new recoW put upon it, 1 'i'iirn. & Ven. 169 ; and liee'Umde, 1Z, and Boyd v. Mills, 13 Ves. at p. 86. (o) See ante, p. SO, note (o). (h) Ibid, note (6). (c) By the present practice, service upon a defendant's solicitor of a subpoena to answer an amended bill is to be deemed good service upon the party, Order 26 of 8th May, 1845. (d) See ante, p. 50, note (6). ( 57 ) CLASS VI. INTERROGATORIES FOR THE EXAMINATION OF DE- FENDANTS TO BILLS AND INFORMATIONS. [As to interrogatories upon » third answer held insufficient, see Order XXII. of 2nd Nov. 1850, post, CLASS VII. Sect. 3.] Within a time to be limited by a General Order of the 15 & ig v. Lord Chancellor in that behalf, the plaintiff in any suit in the "■ 86(n). said Court commenced by bill may, if he requires an answer . . See. xii. i'jZi i. J ntftrrniyatnnfiH to from any defendant thereto, file in the Kecord Office of the ue filed and copies , , '^ u delivered. said Dourt interrogatories for the examination of the de- fendant or detendants, or such of them from whom he shall pee.Mt^&^eTJ^ilTiz require an answer, a nd deliver to the defendant or defendants _p^i'y ■ so required to answer, or to his or their solicitorT a copy o f such interrogatories, or o f s uch of them as shall be applicable to the particular defendant or defendants ; and n o defendant shall be called upon or req uired to put in any answer to a bill unles s interrogatori es shall have been so til ed (6), and a copy thereof deliv ered t o him or his solicitor, within the time so to be limited, or within such further time as the Court shall think fit to direct. The interrogatories for the examination of the defendant to 7 Aug. 1852((!). a bill may be in a form {d) similar to the form set out in Form of inter- rogatories. (a) For the title and time of commencement of this Act, and a pro- vision in cases of mistakes in the practice thereunder, and for the inter- pretation of certain words therein, and in the General Orders made in pursuance of the Act, see anle, p. 40, note (i), and p. 42, note (n). (A) A defendant is not bound to answer any statement or charge in a bill, unless specially and particularly interrogated thereto, nor any inter- rogatory, except those which he is required to answer. Order 16 of 26th August, 1841 ; and where the interrogatory is in general terms, the answer may be in the same terms, Gordon v. Shaw, 14 Sim. 393. (c) See ante, note (a). (d) Under Order 17 of August, 1841, which directed that interroga- tories to a bill should be conveniently divided and numbered consecu- tively, it was held that it was not necessary to prefix a number to each separate interrogatory, but that where the defendant was called on to answer an interrogatory of a specified number, he must answer all the 58 INTERROGATORIES. [CtASS VI. 7 Aug. 1852. Schedule (C) to these Orders, with such variations as the nature and circumstances of each particular case may re- quire. SCHEDULE (C). Form of Interrogatories. In Chancery. John Lee Plaintiff. James Styles -> and S . . . Defendants. Henry .Tones 3 Interrogatoiies for the examination of the ahove-named defendants in answer to the plaintiff's bill of complaint. 1. Does not the defendant Henry Jones claim to have some charge upon the farm and premises comprised in the indenture of mortgage of the 1st of May, 1850, in the plaintiff's bill mentioned? 2. What are the particulars of such charge, if any, the date, nature and short effect of the security, and what is due thereon 1 3. Are there or is there any other mortgages or mortgage, charges or chargey incumbrances or iacumbrance, in any and what manner affect- ing the aforesaid premises, or any part thereof? 4. Set forth the particulars of such mortgages or mortgage, charges or charge, incumbrances or incumbrance ; the date, nature, and short effect of the security ; what is now due thereon ; and who is or are entitled thereto respectively; and when and by whom, and in what manner, every such mortgage, charge, or incumbrance was created. The defendant James Styles is required to answer all these interro- gatories. The defendant Henry Jones is required to answer the interroga- tories numbered 1 and 2. Y. Y. (name of counsel.) Old. XVI. In cases in which the plaintiff requires an answer to any ™' " ^' bill from any defendant or defendants thereto, the interro- questions under that number, Boutcher v. Branscombe, 5 Bea. 541. Where the interrogatories are not properly numbered, the Court will stay the proceedings until the General Order has been complied with, ib. But a sole defendant is not exempted from answering, on the ground that the interrogatories are not numbered, or specified in a note, Lynch o. Lecesne, 1 Hare, 626. One of several defendants, however, is not bound to put in an answer, where he is not required to do so by the note, Hughes v. Lipscombe, 3 Hare, 341. Class VI.] INTERROGATORIES. 59 Ord. XVII. Marking and de- livering copies where defendant appears in due time. gatories fo r the e xamination o f such defendant or defendants 7 Aug. 1852. are to be filed within eight days after the time limited for the " appearance o t' stich defendant or'detiendants (a). If _t.he defendant appear in person, or by his own solicitor, within the time limited for that purpose by the rules of the Court, thT^ TSftrfifiT sTwithin eight days after the time allowed ^111 I II * a. III Viii , 11-.^ „,, „ ,1 I ,1,1 ^^nauM^A for such appiearance, to deliver to the defendant or defendants so requi red t om ans w er, or to his or their solicitor or solicitors, a copy of the i nterrogatories so filed as aforesaid.. pj. of sjip h of them as the par ticular defend ant or defendants shall be re- quir ed to answe r. And the copy s o to be delivered is to be examined with the origin a l , and the number of folios counted by the clerks of recor ds and writs, who o n finding that such copy is duly stamped and properly written are to I ■ iii.i n I ■ «w*«w"i I 'I I' I iiv '■ .Mfci ^■ . ■.... ffl ■. II n. i M n W.IU mark the sa me as an offic g copy. If a njr defenda nt to a suit commenced by bill do not appear in person, or by his own solicitor, within the time allowed for that purpose by the rules of the Court, and the plaintiff has Ord. XVIII. The like where de- fendant does not appear in due time. filed interrogatories for his exam ination, the plaintiff may deliver a copy of s uch interrogatories so examined and marked as aforesaid t o the defend ant, at any time after the time allowed to such defendant to appear, a ncl" tieiorenirappear^ ance m person or by his own'solicitor ; or the plaintiff may deliver a copy of such in terrogato ries, so exammed and marked as aforesaid, to the defend ant' or his solicitor, after the ap- pearance of such defendant in person or by his own solicitor, but within eight days after such appearance. Aft er the time allowed by Order XVI. (6) for filing inter- rogatories for the examination of any defendant, no interro- gatories ar e to be filed f or the examination of such defendant, without special leave o f the Court, to be applied for upon notice of motion. Ord. XX. Further time for filing. (o) In terrogatorie s must be filed withiri the time limited bv this order in the case or a written bill undfer s. 6 ot IS & it) Vict, c. 86 (see ante, p. 49), al though a P''£g_tea'q)pv 9? the bill has not been filed under that section, iJamlfcert v. iJoESs, 16 Jur, 1 008. — (6) Supra, p. 58. ( 60 ) [Class VII. CLASS VII. PLEAS, ANSWERS AND DEMURRERS, AND EXCEP- TIONS FOR INSUFFICIENCY OF ANSWERS. 15 & 16 V. c. 86(a). Sec. XIV. Contents, &c. of answer. 7 Aug. 1852(c). Ord. XXI. Foim of answer. Sect. 1. — Frame of Answers. 2. — Time for putting in Plea, Answer or Demurrer, and Mode of talcing sarne. Z.— Sufficiency of Answers, and Exceptions for Insufficiency. Sect. 1. — Frame of Answers. That the answer of the defendant to any bill of complaint in the said Court may con tain not only the answer of the def endant to t he interrogatories so filed as aforesaid (6), but such statements material to the case as the defendant may t hink it necessary or advisable to set forth th erein, and such a nswe r shall also be " divided i nto p aragraphs nu mbered con- secutively, eac h paragraph co ntaini n g as nearly as may be a separate and distinct state ment or al legation. Answers may be in a form similar to the form set out in schedule (D.) to these orders, with such variations as the nature and circumstances of each particular case may re- quire (rf). SCHEDULE (D). Form of Answer. In Chancery. John Lee Plaintiff. James Styles ^ and J Henry Jones j The answer of James Styles, one of the above-named defendants to the bill of complaint of the above-named plaintiff. In answer to the said bill, I, James Styles, say as follows: — 1. 1 believe that the defendant, Henry Jones, does claim to have a (a) See ante, p. 40, note (6). (6) As to answers to interrogatories, see anle, p. 57, notes (/j) and (d). (<;) See anle, p. 42, note (o). (rf) Answers and pleas and d emurre rs must also be indorsed with the Defendants. Sect. 1 & 2.] frame of answers, 61 charge upon the farm and premises comprised in the indenture of 7 Aug. 1852. mortgage of the 1st of May, 1850, in the plaintiff's bill mentioned. 2. Such charge was created by an indenture dated the 1st of No- vember, 1850, made between myself of the one part, and the said defendant, Henry Jones, of the other part, whereby I granted and con- veyed the said farm and premises, subject to the mortgage made by the said indenture of the 1st of May, 1850, unto the defendant, Henry Jones, for securing the sum of 2000/. and interest, at the rate of 5/ per centum per annum, and the amount due thereon is the said sum of 2000/., with interest thereon from the date of such mortgage. 3. To the best of my knowledge, remembrance, and belief there is not any other mortgage, charge or incumbrance affecting the aforesaid premises. M.N. (name of counsel.) Sect. 2. — Time for putting in Plea, Answer or De- murrer, and Mode of taking same. [As to the time for answering exceptions, see the next Section.] [As to setting down pleas and demurrers, see " Setting down Causes," post, CLASS XIV.] Whether the plaintiff in any suit in, the said Court com- 15&16V.C.86. menced by bill does o r d oes not require any answer from the Timerfor piead- defendant or any one or more of the defendants to the ™^' *'-°" bill, such de fendan t or de fendan ts may, without any leave of the Court, p ut in a plea , answer , or diemurrer to the plaintiff's bill within the time now allowed to the defendant for demurring alone to a biil, or withm such other time as shall be fixed by any general order of the Lord Chancellor in that behalf (a) ; but after that time a defendant or de- ^''^"gj fendants not required to answer the plaintiff's bill shall not Where no answer be at liberty to put in a ji,lea, answer , or d emurrer tp thejjill. names of firms, and tilaces of yinainess nf the defendant's solicitors'—^ and a gents , or of the d efendant himself, i f defending in perso n ; an3^so (if U6re tEan three miles trom the Record and Writ Clerks' Office) with an address for service, not more than that distance. Orders 17 and 20 of 26th October, 1842. (a) Where a defendant is required to answer a bill, his time to plead, answer or demur is fixed by Order 19 of 7th August, 1852, infra. Where he is not required to a nswer, hi s time to plead^ a nswer er demur i s twelve Jays atter appearance; bdag the time within which he might lormerly demur alone. Order le.'aHTlO, of 8th May, 1845. ' ' 62 PLEA, ANSWER OR DEMURRER. [ClASS VII. 15&16V.C.86. without leave of the Court ; provided that the power of the Court (a) to grant f^irther jitaejbr pleading, a nswering, or demurring to any bill, upon the application of any defendant or defendants thereto, whether required to answer the bill or not, shall remain in full force, and sh all not be in anywise prejudiced or affected (5) ; provided also, that if the Court sballgranr any" further time to any defendant for pleading, answeringror"demufring~to the bill, the plaintiff's right to move for a decree under the provisions herem-atter con- tained (c) shalllinlthe meantime be suspended. 7 Aug. 1852. A defendant required to answer a bill must put in his plea, where^aMw le- answer, or demurrer thereto, not demurring alone, within *"'"'^' fourTeen days j i-om the delivery to him or his solicitor of a copy ofthe intferro gatorie s which be is required to answer ; but the Court shall have fu ll power to enlarge the time from time to time upon application tieihg made to the uoiirt for that purpose. 15&16V.C.86. The practice of the said Court, of issuing commissions to neaaTsic. within take pleas, an s wers, disclaimers, an d examinations in causes tSta"^oralDd and matters pending in the said CourrshST with respect to ffled^iike an affi- pleaSj_ answers, disclaimers, and examinations taken within t he jurisdiction of the Court, be and the same is hereby abolished ; and any such ple a, answer, disclaimer, or ex- amination mayj^£j51g4 wit hout any furth er or other formality than is required in the swearingandfiling of an affidavit. Sec. XXII. All "pleas, answers, disclaimers, examinations, affidavits, be sworn and declarations, affirmations, and attestations of honour in causes iretodjtiiechani or matters depending in the High Court of Chancery, and nei Islands, &c. also acknowledgments required for the purpose of enrolling any deed in the said Court, shall and may b e sworn and^ taken in Scotland o r Ireland , or the Channel Islands, oijn a ny°cdlony , island, plantation, or place under tKe~3omTnion of (a) By the 13 & 14 Vict. c. 35, s. 26, (ante, p. 11,) the Court was empowered to hear and determine applications for time to plead, answer or demur, concurrently with the Masters, if, under special circumstances, it should think fit ; but now as to the Masters, see the next note. (6) Applications to plead, answer or demur may be made to a judge at chambers, if he should think that they may be more conveniently dis- posed of there than in open Court, IS & 16 Vict. c. 80, s. 26, post, Class XVII. ; and see the notice of 10th November, 1852, stuck up in the Judges' chambers, post, Class XVII. Such applications can no longer be made to the Masters, 15 & 16 Vict c. 80, s. 35, repealing ss. 13, 14 and 15 of 3 & 4 Will. 4, c 94. (c) See 15 Si 16 Vict. u. 86, b. 15, post, Class VIII. Sect. 2 & 3.] flea, answer or demurrer. 63 her Majesty in forei gn parts , before any judgej court, notary 1S&16V. u.86 public^ or person lawfully auth orized to a dminister oaths in such country, colony,.is1and, plantation, or place respectively, or before a ny of her Majesty's consuls or vice-co nsuls in any foreign parts out o f her Majesty's dominions ; and the judges and other officers of the said Court of Chancery shall take judicial notice of the seal or signature, as the case may be, of any such court, judge, notary public, person, consul, or vice-consul attached, appended, or subscribed to any such pleas, answers, disclaimers, examinations, affidavits, affirma- tions, attestations of honour, declarations, acknowledgments, or other documents to be used in the said Court. Pleas, answers, disclaimers, or examinations, whether taken _, ^^''l-'^^ by commission out of the jurisdiction of the said Court or filed without oath •' . . of messenger. oth erwise, may be filed witho ut the oath of a messenger, and any alterations madeTfierein previously to the taking thereof shall be authenticated according to the practice now in use with respect to_affidavits (a). Sect. 3. — Sufficiency of Answers, and Exceptions for Insufficiency. That all exceptions for scandal {c), impertinence (d) and 13 & 14 V. insufficiency , which according to the existing practice of the sec. xxvii. ^ Exceptions to be ■ heard by the Court. (a) TSo erasures should be made ; c orrections sh ould be written^ bove a mistake ; and s uch corfectt6 ns"5B'd all i nterlineation s must be marked with the i nitial s oi tfaepersorl befor e wh om'the affidavit is sworn, Smith's Handbook, Vb. '™ ———'——— ..—_•-.■— ,a (6) This act is intituled " An Act to diminish the Delay and Expense of Proceedings in the High Court of Chancery in England." It re- ceived the royal assent on the 15th July, 1850, and took effect from the 1st November, 1850. S. 35. It contained power for the Lord Chancellor, with the advice and consent of other judges of the Court, to make General Orders in respect of the matters to which the Act relates, and which Orders were to have the same effect as an Act of Parliament, pro- vided they should be expressed to be made in pursuance of this Act, ss. 30 and 31. For the interpretation of certain terms contained in the Act, see s. 34, post, Special Case, Class XXV., note. (c) As to exceptions for scandal, see post, Class XXII. (d) The practice of e xcepting to answers for i mpertinence is now abolished, and the C ourt may direct th e costs oc caBJoned by impertinent nialiar Itf be paid by tne party introducing the same. 15 & 16 Vict, c. 86, s. 17, post. Costs, Class XXIX. 64 13&14V.C.35. 2 Nov. 1850 (o). Ord. IV. YacatiohB not to be leckoned. Ord. V. Orders not to apply to old references. Ord. VI. No order to file nunc prtr tunc. SUFFICIENCY OF ANSWERS, ETC. [ClASS VII. said Court are referred to the Masters of the said Court, shall not any longer be so referred, but shall be heard and determined by the said Court in the first instance. The t imes of vacati oQ (6) are n ot to be reckoned in the co mputation of- the time allowed for filing o r s etting down, exceptions for scandal (c), impertinence (rf), or in sufficienc y, m cases where the time is not limited by notice given pur- suant to the 13th of these Orders (e). These orders do not apply to any reference for scandal (c), impertinence (rf), or insufficiency pending before any of the Masters at the time when these orders come into operation (_/"), but as to all such references the existing rules and orders of the Court are to remain in force (§•). No order to be made for leave to file exceptions nunc pro tunc (Ji). (a) The General Orders of this date comprised in this section, were, with others of the same date, expressed to be made in pursuance of the 13 & 14 Vict. c. 35, and therefore have statutory force, (see note (6) ), supra. They took effect on the day of their date (Order 3,) and were substituted for the following General Orders, which, by Order I., were discharged, viz. Orders 7, 9 and 10, of 3rd April, 1828, Order 19, of 21st December, 1833, and Order 14, art. 2, Order 16, arts. 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31, and Orders 17 and 19, of 8th May, 1845 ; but all former Orders, and parts of Orders, not specified in Order 1, so far as the same were then in force, and consistent with these Orders of the 2nd November, 1850, or applicable to the same, or the subject-matter thereof, were by Order 2 to remain in force. (6) The times of vacation (except in the accountant-general's office), are as follows ; viz. Easter vacation, commences and terminates on such days as the Lord CIiiUKJBllur yeafly directs, and is usually ten days shortly previous to Easter Term ; Whitsun vacatio n cOmilltillu'tiil on llie' third day after Easter Term , and terminates on the second d ay before T rinity Ter m ; the li ong Vacatio n commences on the l Otn Au gust, and termitiates on the 28tn Uctq ber ; and the Christmas vacaLiuii dUUlllltihces on the 24th Decembe r, and terminates on the 6th January; inclusive of the days ot sucn commencements and terminations. Order 8 of 8th May, 1815. (c) As to exceptions for scandal, see post, Class XXII. (d) See ante, p. 63, note (rf). (e) See post, p. 66. (/) 2nd November, 1850 ; see Order 3. (g) But old exceptions, which have once been before the Master, may, upon the coming in on a further answer, be heard before the Court, with- out a further reference. Robinson v. Lamond, 15 Jur. 240. (A) This Order is the same as the discharged Order 17 of 8th May, 1845, under which it was held that although an Order could not be drawn up in the forbidden form, even by consent, yet an order might be made for referring the exceptions, notwithstanding the time limited had expired. Biddulph ». Lord Camoys, 9 Bea. 155. Sect. 3.] sufficiency of answers, etc. 65 After the filing of a defendant's answer , the plaintiff has 2 Nov. 1850. six weeks within which he may file exceptions thereto for orTvm insufficiency. ^rc„reTu?is If he d oes not file exceptions within six weeks, such °'*«''^""- answer on the expiration of the six weeks is to be deemed sufficient (a ). A defendant desiring to pr event exceptions to his answer . Ord. ix. for in sufficien cy being set down for hearing , has for that purpose only eight days after th e filing of such exceptions within which he may submit to the same ( 6). If a d efendan t not being in contempt submits to exceptions Ord. x. to his answer for insufficiency before the plaintiff has set when defendant submits. them down fo r he aring , he is allowed three w eeks from the date of the submission within which he is to put his further answer to t he bill (6). • The plaintiff having filed e xceptions for insufficiency to a ord. xi. defendant s answer is not to set them down for hearing, before for eight days, '™ the expiration of eight days from the filing of such exceptions, ' unless in a case of election h e is required b y notice in writing from su ch d efendan t to set them down in four days , pursuant to the 13th of these Orders (c), or in a case where the common injunction (d) may be obtained or retained on the allowance of such exceptions (6). E xceptions to a nswers for ins ufficiency, or to any pleading ord. xii. or other matter depending before the Court for scandal or foTn! and notice impertinence, or for scandal and impertinence (e), are to be set *''°"°^- down f or hearing bv the registrar a t the request of the party filing t he sarne upon the p roduction of a ce rtificate o f the clerk of records and writs o f the filing of such exceptions (/) ; 0-l/''€^-^ (o) This Order is the same as the discharged Order 16, art. 22, of 8th May, 1845. Where plea and answer filed , and pl ea overruled, the case is within this Order, and the six week s begins to run from the time of the overruling of the plea. Esdaile v. Molyneux, 2 doll. 641. (ft) Tnese Orders are respectively substitutions for the discharged Order 16, Arts. 23, 24 and 25, of 8th May, 1845. (c) See this Order, infra, p. 66. (d) The practice with respect to injunctions to stay proceedings at law is now assimilated to the practice with respect to special injunc- tions generally, see post, " Injunctions," Class XIX. (e) As to scandal, see post, Class XXII, ; and as to impertinence, see ante, p. 63, note {d). (/5 This Order is permissive only, and does not take away the old right of obtaining an order of service for the same purpose, Coyle v. Alleyne, 14 Bea. 171; Orders to set down exceptions before the Lord Chancellor or Vice-Chancellors may be drawn up by the registrars upon 66 2 Nov. 1850. Ord. XIII. Time for setting down in case of election. Ord. XIV. To be set down for hearing after eight days, but within fourteen days. Ord. XVI. Old exceptions to be set down in fourteen days. SUFFICIENCY OF ANSWERS, ETC. [ClASS VII. or (in the case of exceptions to an answer for insufficiency) of the filing of a further answer (a), and the same are to be advanced and put in t he paper fo r hearing on an early day (6), and the party setting down any such exceptions shall on the day on which the same shall be so set down s erve a notice tliereof on the party whose pleading or other matter is ex- cepted toTotherwise'the said exceptions shall be deem ed not set Sown. A defendant, whose answer is excepted to, a lleging that the pl aintHJFls prosecuting him in this C ourt an d also at law fo r the same matter, may by not ice in writin g r equire the plain- tifF to set down the exceptions within four days from the service of the notice. And if the plaintiff does not set down such exceptions within such four days, such d efendant is entitled as of course, on motion or petition^ to obtain the usual order for the plaintiff to make h is election in which Court he will proceed (c). The p laintiff having filed exceptions for insufficienc y to a defendant's answer is to set them do wn f or hearing after the expiration of eight days, but within fourteen days from the filing of such exceptions. i f he does not, the answer on the expiration of such fourteen days is to be deemed sufficient (d ). After the filin g of exceptions to a defendant's answer for insudiclency, and any further an swer p ut in, the plaintiff has fo urteen days from t he tiling of such further answer within which he may set down the old exceptions. If the o ld exceptions be not set ^wn w ithin fourteen days after such further answer put in, the answer is on petition to the Lord Chancellor, left with the registrar without any fiat or direction from the Lord Chancellor ; the solicitor applying to have exceptions set down for hearing, is to subscribe on such petition his name or firm, and the party for whom he acts, and also the date ; and every order drawn up on such petition will bear the last-mentioned date, see Order of 23rd February 1850, and Regulations of the registrars of 1st March, 1850, post, " Setting down Causes," Class XIV. (a) Although the original exceptions were referred to the master, Ro- binson V, Lamond, supra. (6) See Coyle i>. AUeyne, supra. (c) This Order was substituted for the discharged Order 16, Art. 21, of 8th May, 1845. With respect to Election, see post, Class XXIII. (d) This Order was substituted for the discharged Order 16, Art. 26, of 8th May, 1845. Sect. 3.] sufficiency of answers, etc. 67 the expiration of such fourteen days to be deemed suf- 2 Nov. 1850. cient (a). ' After exc eptions to an answer for insufficiency are set ord. xvii. J p 1' ■ ./. 1 n 1 1 • • T — -JPurthei answer gown t or hearing, ii a deiendan t not being in contempt sub- within time to be ' .. . , X, , , , 1.1, 1 i.™i'ii.i ■ rii.iiiS III, aa^ appointed by the mits to answe r, or t he Court holds the answer to be i nsutH- Court. cient , the Court may in such, cases a ppoint tEe Timie'within" which such defendant is to put his further answer ( 6). If su ch defendant does not obtain time from the Court, or does not answer within th e time which the Court allows, the plaintiff may sue out process of contempt against such defendant (a). The answer o f a defendant is to be deemed sufficient — Ord. xviil. 1. If no exceptioh for in sufficiency be filed thereto flcient. within si x week s a fter the filing of such answer. or insufficient. 2. If e xceptions being filed the plaintiff* do es not set t hem down fo r hearing within fourteen" d ays alter the filing t hereof. 3. If within fourteen days a fter the filing of a further answer , the plaintiff* does not set down the old fexcep^ tions (e). If after a defendant's s econd or t hird answer is filed the Ord. xix. pl aintiff sets down the old exceptions (d) for in sufficiency , tions, the particu- then th e pa rticular exception or exceptions to which he re- be stated. quires a furt her answer is or are to be stated in the notice o f setting down such exceptions (e) — (_/"). If u pon t he hearing of exceptions the answer be held suffi- Ord. xx. ■^ '^ • ' - ■ Time from which Cient, It shall be deemed to be so from the date o f the order answer rafflcient made on the hearing; and if the defendant submit to answer without an order from the Court, the answer sh all be deemed insu fficient from the date of the submission (e ) — (g). (a) THese Orders were respectively substituted for the discharged Order 16, Arts. 29 and 30, of 8th May, 1845. (6) And see Order 21, post, p. 68. (c) This Order was a substitution for the discharged Order 16, Art. 31, of 8th May, 1845. (d) The old exceptions are to be set down before the Court after a further answer, although originally referred to the master, Robinson v. Lamond, supra. (e) These Orders were respectively substituted for the discharged Orders 7 and 9, of 3rd AprU, 1828. (/ ) The notice must not be in general terms applying to all the ex- ceptions, Tanner ». Strutton, 15 Jur. 457; and if the particular excep- tions are incorrectly stated, it is an irregularity, Emmott v. Emmott, 12 Bea. 557 ; Fry v. ManteU, 5 Bea. 99. (g) And the defendant, if not in contempt, is allowed three weeks F 2 gg SUFFICIENCY OF ANSWERS, ETC. [ClASS VII. 2 Nov. 1850. The Court holding a first or second a nswer to be i nsiiflB- ord. XXI cient, may app oint the time w ithin which a defendant who is wUhttirro"« rSoTm contem-pt , is to Hie a further answer . ap^mtedbythe ^^^^ ^ third answeV'be mg Feld^^obe insufficient, the ord. XXII. Court may order the defendant to be examined upon i nter^ third answer held rogatories to the pointri TeTcrTo be insufficient, and to stand insufficient. committed until he shall have perfectly an swered th e interro- gatories fani the defendant is to pay sucn costs as the Court shall think fit to awara {a). CLASS VIII. MOTION FOR DECREE. 15 & 16 V. The pl aintiff in any s uit commenced by bill shall be at c. 86(6). liberty, at any time after the time allowed (c) to the defend- piaintiffmay ant for answering the same shall have expired (but before move for a decree .... i/-( i*- in* on notice, rephcation), to move th e Cou rt, upon such notice as shall in '^''^^^^^"- that behalf be prescribed by any General Order of the Lord from the date of his submission, to put in his further answer, Order 10, anU, p. 65. , (a) This Order is a substitution for that of the discharged Order 10 of 3rd April, 1828. The course of proceeding to examine the defendant upon interrogatories, is fully stated in Farquharson u. Balfour, Turn. & Russ. 184'! but the practitioner will bear in mind that what is said in that case with reference to a fourth answer, is now applicable to =1 third answer. In Farquharson v. Balfour it was laid down that the motion that a defendant should he examined upon interrogatories, and stand committed, was of course ; but that practice has since been doubted in Kent v. Waterhouse, 9 Jur. 8. The defendant will not be allowed to put in a fourth answer, Russell v. Dight, 6 Sim. 430 j Liverpool v. Chip- pindall, 14 Jur. 301. (fc) See note (6), anle, p. 40. (c) The time allowed to the defendant to answer a bill is fourteen days, in case the plaintiff requires an answer, and twelve days, if he does not require an answer, with power for the Court to grant further time, 15 & 16 Vict. c. 86, s. 13, and Order 19 of 7th August, 1852, anie, p. 61, and note (o). And by the last mentioned section, if the Court shall grant any further time to answer, the plaintiff's right to move for a decree under this section is in the mean time suspended. Class VIII.] motion for decree. 69 Chancellor, for such decre e or decretal order as he may think 15&16V.C.86. himself entitled to ; and the plaintiff and defendan t respec- and affidavits lively shall be at li berty to file affidavits in support of arid in "^y"^^''"' opposition to the motion so to be made, and to use the same on the hearing of such motion ; and if such motion shall be made after an answer filed in the cause, the answer shall , for the purposes of the motion, be treated as an affidavi t. One month's Cft) notice is to be given by the plaintiff to 7 Aug. 1852(a). the defendant or defendants of the motion for a decree or Month's bS. decretal order. ~ — — >' The affidavits to be used in support of such motion are to Ord. xxiir. i_ ll^ j', r. , . - I * * r , ,. „ . Plaintiff's afflda- be tiled, betore the service of such notice, and a lis t of such vits. affidavits is to be set forth at the foot of such noticeT The defendant, within fourteen days after service of such Ord. xxiv. ^^"^^'^"'"^'^ ^'^■^^^^■^"^■^"^'"''"^^ ^^^H^v^^^^^^BPi^^^ ^fiffiTid anil's Si^ii^ notice, is to file his affidavits in answer, and to furnish the davits. plaintiff o r his solicitor with a list thereof. Within seven days after the expiration of such fourteen Ord. xxv. days the plaintiff is to file his a ffidavits in reply , which affl- F^'haraflidavits. davits shall be confined to matters stncnyinreplv , and he is to furnish the d efendant or his solicitor with a list t hereof; and except so far as these affidavits a re in replva they are not to be r egarded by the Court, unless u pon the hearing of the motion the Court s hall give leave to the defendant to answer th em, and in that case the costs of suqh affidavits, and oi tKe" f urther affidav its consequent upon them, shall be paid by the plaintiff, u nless t he C ourt s hall ot herwise order. No further evidence on either side is to be used upon such orf. xxvi. MM ■ . 1 K I Furthei evidence. motion for a decree or decretal order without leave o f the Court. Every notice o f motion for a decree or decretal or der i s to Ord. xxvii. , . , - fj"***r"*'^^ ' , ''*'**' ' ' , . - _ Hearing. be entered w ith the registra r, who is to make out a list o i such motibns, and the same are to be heard according to such list, unless the Court shall make order to the contrary. U pon a ny such motion for a decree o r decretal order it l5&16V.e.86. shall be d iscretionary with the Court to g rant or refuse the Decree°'o?rader motion, or to make an order giving such directions for or with ^'scretionary. respect to the f urther prosecution of the suit as the circum- stances of the case may require, and to make such order as to costs as it may t hink right. ~ (o) See note (a), ante, p. 42. (6) i. 6. a lunar month, see note (ft), ante, p. 42. ( 70 ) CLASS IX. PRODUCTION OF DOCUMENTS (fl). 15&16V.C.86. It shall be lawful for the Court , upon the applicat ion of See. XVIII. the plaintiff in any sui t in the said Oourt, whether commenced feiJdan't""'""'**' by bill or by claim, and as to a suit commenced by bill, whether the defendant may or may not have been required (a) Applic'ktions for the production of documents are to be disposed of by the Master of the Rolls and Vice-Chancellors sitting at chambers, if they shall think that such applications may be more conveniently dis- posed of in chambers than in open Court, 15 & 16 Vict. c. 80, s. 26 ; and the judges have accordingly determined that such applications are to be made at chambers ; see notice of 10th November, 1852, stuck up in the judges' chambers, post, Class XVII. But if there appears to be any difficulty as to the production, the judge vrill adjourn the matter into Court, in order that it may be argued there, Thornton v. Tenlow, 16 Jur. 988. Notwithstanding these regulations, however, applications founded upon the admissions made by a defendant in his answer may properly be made to the Court in the first instance, Morris v. Hannam, 45 L. O. 63. Applications by defendants for production, under the 20th section of the Act, must specify the documents asked for, and must be supported by primd facie evidence, at least, of the plaintiff's possession of some documents relating to the matters in question, Fiott i>. MuUins, 16 Jur, 946 J M'lntosh v. The Great Western Railway Company, ib. 989. The practice as it has hitherto existed (and much of it will in any event still be applicable) will be found in 2 Dan. Pr. pp. 1661 to 1694 {2nded.); and for some later cases, see on the subject of admissions, Addis V. Campbell, 1 Bea. 261 ; Boschetti v. Power, 8 Bea. 98 ; Palmer V. Wright, 10 Bea. 234; Rodick v. Gandell, ib. 270; Scott v. Wheeler, 12 Bea. 366 ; Edwards v. Jones, 1 Fh. 501 ; Blenkinsopp v. Blenkinsopp, 2 Ph. 607 ; Reid v. Langlois, 1 Mac. & G. 627 ; Burbidge v. Robinson, 2 Mac. & G. 244; and Reynell v. Sprye, 15 Jur. 1046. As to the pos- session of a public officer, Butchart i>. Dresser, 1 1 Jur. 196; of agents and third persons, Airey v. Hall, 2 De G. & S. 489 ; Cridland v. Lord De Mauley, 13 Jur. 442; Reid v, Langlois, sufra; The King of the Two Sicilies v. Willcox, 1 Sim. N. S. 301 ; Morrell ». Wootten, 13 Bea. 105 ; and Glyn t>. Caulfeild, 3 Mac. & G. 463 : where a lien is claimed by a solicitor, Wroughtonu. Barclay, 11 Jur. 274, and Goodchap. u. Weaving, 16 Jur. 586 : where a collateral purpose is to he served, Tagg v. South Devon Railway Company, 12 Bea. 151. As to the interest in the docu- ments. Glover v. Hall, 2 Ph. 484. As to motion after amendment after answer, Haverfield v. Pyman, 2 Ph. 202 ; but where the case not varied, Reynell v. Sprye, 1 1 Bea. 618. When the admission of relevancy is quali- fied, Attorney-General ». Thompson, 8 Hare, 106 ; Ord v. Fawcett, 14 Jur. 456 J and Harford v, Rees, 15 Jur. 663. Upon the question whether the Class IX.] production of documents. 71 to answer the bill, or may or may not have been interrogated 15&16V.C.86. as to the possession of documents, to make an order f or the production by any defendant, u pon oath, of such of the do- cuments m his possession or power relating to matters in question in the suit, as the Court shall think right ; and the Courtj mav deal wi th such document s, when produced, in such manner as shall appear iust. It shall be lawful for the Court, upon the application of „ /™-.^^- ^ ' r < rr Production by any defendant in any suit , whether commenced by bill or by plaintiff. claim, but as to suits commenced by bill where th e defendant is required to answer the plaintiff's bill, not until after he has put in a full and s ufficient answer to the bill, unless the Court shall make any order to the contrary, to make an order for the production by the plaintiff in such suit, on oath, oi such 01 the doc uments in his possession or power relating to the matters in question in the suit, as the Court shall think right ; and the Conrt may deal with such documents, when produced, in such manner as shall appear just. documents support the plaintiff's title, see Hunter v. Capron, 5 Bea. 93 ; Marquis of Bute v. Glamorganshire Canal Company, 1 Ph. 681 ; Mayor of Berwick v. Murray, 1 Mac. & G. 530 ; Goodall v. Little, 1 Sim. N. S: 155 ; M'Hardy v. Hitchcock, 11 Bea. 73 ; Stainton v. Chadwick, 13 Bea. 320 ; 3 Mac. & G. 575 j and Attorney-General v. Thompson, supra. When the question arises in a suit to set aside a deed or other transac- tion, see FoUett v. Jefferyes, 13 Jur. 465, 972 ; S. C. 1 Sim. N. S. 3 ; Bea- don V. King, 17 Sim 34 j Dandy v. Cross, 11 Bea. 91 ; Reynell v. Sprye, ib. 618; Shallcross ». Weaver, 12 Bea. 272. Where the objection to production is that the documents relate exclusively to the defendant's case, see Peile v. Stoddart, 1 Mac. & G. 192, and Attorney-General v. Corporation of London, 12 Bea. 8; 2 Mac. & G. 247: and where the plaintiff has no case except a negative of the defendant's claim, Attor- ney-General V. Lambe, 12 Jur. 386 ; but see Wansey v. Tempest, 9 Bea. 407.' If the defendant refers to the document as part of his answer, M'Intosh V. Great Western Railway Company, 1 Mac. & G. 73, and Glover v. Hall, 2 Ph. 484. With respect to exemption from production on the ground of privileged communications professional or otherwise, see Tugwell v. Hooper, 10 Bea. 348 ; Reynell v. Sprye, supra ; Beadon >■. King, 17 Sim. 34 ; Warde v. Warde, 1 Sim. N. S. 18 ! 3 Mac. & G. 365 ; Reece v. Trye, 9 Bea. 316 ; Penruddock v. Hammond, 11 Bea. 59 j Brown v. Oakshott, 12 Bea. 252; Reid d. Langlois, supra; Goodall v. Little, 1 Sim. N. S. 155; Lady Beresford v. Driver, 14 Bea. 387, and Glyn V. Caulfeild, 3 Mac. & G. 463 ; and that the privilege may be shown by affidavit, see Penruddock v. Hammond and Goodall v. Little, sujira. It is no answer to the motion that the documents tend to support an in- dictment for perjury against the defendant, Rice v. Gordon, IS Sim. 580 ; but a correspondence agreed to be without prejudice is protected, Whif- fen II. Hartwright, 11 Bea. 111. In a suit for redemption and foreclosure, see Gibson v. Hewett, 9 Bea. 293 ; and, lastly, as to production by a plaintiff, see Darner v. Lord Portarlington, 15 Sim. 380. 73 PRODUCTION OF DOCUMENTS. [CtASS IX. 16 Oct 1852. Where any deeds or other documents are ordered to be ord. Lvii. left or deposited, the same are to be left or deposited in the |SftTfte"Recora Record and Writ Office, and are to be subject to such di- I ana Writ Office, ^g^jj^^g ^^ ^^y j^g gj^g^ {•„, ^^^ production thereof. CLASS X. INTERROGATORIES FOR THE EXAMINATION OF THE PLAINTIFF. 15&16V.C.86. Sec. XIX. Defendant, after answer, may file interrogatories for examination of plaintiff. It shall be lawful for any defendan t in any suit, whether commenced by bill or by claim, but in suits commenced by bill which the defendant is required to answer, not until after he shall have put in a sufficient answer to the bill, and without filing an y cross bill of discovery, to file i n the Record Office of the said Court interrogatories (a) for the examination of the plaintiff , to v yhich shall be prefixed a concise statemen t of the sub jects on which a di scovery is ^sought, and to deliver a copy o f such interrogatories to t he plaintiff or his solicitor ; and such plaintiff shall be bound to answer such interroga- tories, in like manner as if t he same hacTTieen contained in a bil l of discovery filed by the defendant against him on the day w hen such i nterrogatories shall have been filed , and as if the defendant to such bill of discovery had on the same ctay duly appeared (6); and the practice of the' Clourt with reference to excepting to answers for insufficiency, or for scandal (c), shall extend and be applicable to answers put in (o) For the form of interrogatories for the examination of the defendant, see ante, p. 58. (6) For the practice relating to cross bills of discovery, see Smith's Handbook, 496. (c) For the practice of the. Court with reference to exceptions to an- swers for insufficiency, see 1 Daniel's Pr. 725 to 739 (2nd ed.), and Smith's Handbook, 228 to 240 ; and as altered by the General Orders of Class X.] ikterrogatokies, 73 to. such interrogatories; provided that in determining the 15 & 16V. 0.86. materiality or r elevancy (a) of any such answer, or of any ex ception" th ereto, the Court is to h ave regard, in suits com- menced by bill, to the sta tements c ontained in the original bill, and in th e answer w hich may have been put in thereto by the defendant exhibiting such interrogatories for the ex- amination of the plaintiff, and in suits co mmenced b y claim, to the statements therein, and in any affidavits which may have been filed either in support thereof or in opposition thereto : Provided also, that a defendant, if he shall think fit so to do, may exhibit a c ross bill of dis covery against the plaintiff*, instead of filing mterrogatories for his examina- tion (6).* ' 2nd Nov. 1850, see ante, p. 63. As to excepting for scandal, see 1 Daniel's Pr. 721 to 725 (2nd ed.)j Smith's Handbook 578 to 582, and post, Class XXII. (a) The cases relating to the defendant's right to exempt himself from answering on the ground of immateriality (which in its present applica- tion must he considered as synonymous with irrelevancy, Hare on Dis. 158) will he found in 1 Dan. Pr. 683, 684 (2nd ed.) (6) It frequently happens that a defendant to a hill in equity is ad- vised to become himself a plaintiff in what is called a cross bill. He may require from the plaintiff in the original suit admissions of facts or the production of documents necessary for his defence. The original case may be founded on a deed or instrument which he may be entitled to have set aside for fraud or error; or he may on other grounds, accord- ing to the case made by him, be entitled not merely to resist the plain- tiff's demand, but to ha^* a decree giving him relief in respect of the property or transactions the subject of the original suit. He is not, how- ever, able to obtain any such discovery or production of documents, or any such relief, without a cross bill ; and in the cross suit the proceedings are similar to those in an original suit. Evidence is frequently required in such cross suit In some cases witnesses are examined in both suits, and the same interrogatories which are administered in the one suit are sometimes administered over again to the same witnesses in the other. — Report of Chancery Commissioners of 27th Jan, 1852, p. 10. ( 74 ) CLASS XI. DISMISSAL OF BILL FOR WANT OF PROSECUTION, 15 & 16 V. Wherea defendant to a suit in the said Court commenced c. 86(a;. jjy jjjjj shall not have been required to an swer the bill and Dismissaifor ' shall not have answered the same, such defendant' shall be wantofproseou- at liberty to move to dismiss the bill for want of prosecution, at such times, and under such circumstances, and subject to such restrictions as shall be in that behalf prescribed by any general order of the Lord Chancellor. 7 Aug. 1852(a). A defendant to a suit commenced by bill, who shall not Atwhattime.' have been required to answer the bill, and shall not have answered the same, shall be at liberty to apply for an order to dismiss t he bill for want of prosecution, at any time after tbe expiration of three montbs\6) from the time of his ap- pearance, unless a m otion l or a decree or decretal o rder (c) shall nave been set down in the meantime , or th e cause shall have been set down to be heard ; and the Court may , upon such applicatio n, if it shall think fit, make an order dismissing the bill, or make such other orde r or impos e such terms as may appear just and reasonable. — — (o) See note {b), ante, p. 40, and note (a), ante, p. 42. ^(fc) Lunar months , see note (6), ante, p. 42. («) See ante, p. 68. ( 75 ) CLASS XII. JOINING ISSUE. In suits in the said Court commenced by bill, where notice 15 & 16 V. of motion for a d ecree, or decretal order shall not have been <:-BS(a) . given, or^ having been given, where a d ecree o r d ecreta l iasul°mfy^b^^' order shall not have been m ade thereon, issue shall be ioined JoiMfii>yfliipg« » -«■ ' ^M^^a^^ t^^,^^,^^ plication m the by filing a replication in the form or to the effect of the re- present form. plication now in use in the said Court (6) ; and where a de- fendant shall not ha ve been r equired to answer and shall not have answered the plaintiff's bill, he shall be considered to have traversed the case made by the bill. ~~ (a) See note (6), ante, p. 40. (b) The replication now in use is in the form following, or as near thereto as circumstances admit and require. Order 93 of 8th May, 184.5:— Between A. B Plaintiff, and C. D., E. F., G. H., &c. . . Defendants. The plaintiff in this cause hereby joins issue with the defendant C. D. [a/2 the defendants who have answered or pleaded, or against whom a traversing vole has been filed}, and will hear the cause on bill and answer against the defendant E. F. [a// the defendants against whom the cause is to be heard on bill and answer'], and on the order to take the bill as confessed against the defendant G. H. [as the case may be]. If more than one plaintiff, say "A. B. and another" (or " others"), without setting forth their names; but all the defendants should be named. Smith's Handbook, 370, u. 2. The replication must be indorsed with the names and addresses of the solicitors and agents, or parties acting in person^ Orders 17 and 20 of 26th Oct. 1842. And it should be borne in mind that notice of its b eing filed is to be given to the adverse parties on thesame day. Order 23 o: zotn Oct. 1842, and a noncompli- ance with tliis Order "Has been held a sufficient ground for taking the replication off the file, Johnson ». Tucker, IS Sim. 599; though it has since been laid down that the proper course is to extend the time allowed to the opposite party for taking the next step, Wright v. Angle, 6 Hare, 107. Only one replication is to be filed, unless the Court otherwise orders, Order 93 of 8th May, 1845 ; but in a proper case the Court will allow a replication to be filed against some of several defendants, Mores V. Mores, 6 Hare, 127, and will also allow a separate replication to be withdrawn, and a joint one filed, so that the proceedings may go on pari passu, Stinton v. Taylor, 4 Hare, 608. 76 7 Aug. 1852 (a). Ord. XXVIII. Same form where bill traversed. JOINING ISSUE. [Class XIII. Where a defendant shall not have been r equired to answer and shall not have answerec l" the plaintiff's bill, so that under the 15th & 16th Vict. c. 86, s. 26, he is to be considered as having traversed the case made by the bill, . issue is neverthe- less to be joinedby filing a replication in the form or to the effect of the replication now in use(bj. CLASS XIII. EVIDENCE. Sect. 1. — Mode of taking Evidence, and Time allowed for that purpose. 2. — Affidavits generally. 3. — Other matters relating to Evidence. Sect. 1. — Mode of taking Evidence, and Time allowed for that purpose. 15 & 16 V. '^^^ mode of examining witnesses in causes in the said c. 86(c). Court, and all the practice of the said Court in relation there- Sec. XXVIII. ' 1 ■ , 11 L • ■ • , 1 1 Mode of examin- to, SO far as such practice shall be inconsistent with the mode Sboiisheirexcept hereinafter prescribed of examining such witnesses, and the order. ™^ practice'in relation thereto, shall, from and after the time ap- pointed for the commencement of this Act, be abolished (c{) : Provided always, that the Court may, if it shall think fit, order any particular witness or witnesses within the juris- diction of the said Court, or any witness or witnesses out of (o) See note (o), ante, p. 42. (6) See note (6), ante, p. 75. (c) See note (d), ante, p. 40. The power of making) general orders given to the judges by s. 63, is very comprehensive, for such orders may be made, not only for carrying the purposes of the Act into effect and for regulating the proceedings and practice of the Cciurt generally, and the fees of officers and solicitors, but also so far as may be found expedient for altering the course of proceeding prescribed by the Act, and such orders may be rescinded or altered. {d) Examiiialions de bene esse arg within the Act, Cook v. Hall, 16 Jur. 1008. : " " Sect. 1.] evidence. 77 the jurisdiction of the said Court, to be examined upon in- 15&16V.c.8e. terrogatories in the mode now practised in the said. Court; and that with respect to such witness or witnesses the prac- tice of the said Court in relation to the examination of wit- nesses shall continue in full force, save only so far as the same may be varied by any general order of the Lord Chan- cellor in that behalf, or by any order of the Court with refer- ence to any particular case. In suits in which issue shall have been joined (6 ) when 7 Aug. 1852 (o). these oraerT come into opera"tip n, the e vidence to be used at siSts*ii?wMc?' the heating of the cause"shall be taken according to the ex- jSdf'***'^ is tinpr practice o f the Court, unless t he parties shall consent, or the Court shall order , that the same shall be taken in the mode prescribed by the Act 15 & 16 Vict. c. 86, and these orders (c). When any suit commenced by bill shall be at issue (6), the 15&16V.C.86. plaintiff shall, within .such time thereafter as shall be pre- piatatifSy^give scribed in that behalf by any ge^eral order of the Lord feSt''thlt evl Chancellor, give notice to the defendant that he desires that *r by affidavT"'' the evidence to be adduced in th^ cause shall be taken orally or upon affidavit, as the case may be ; and if the plaintiff shall desire the evidence to be adduced upon affidavit, and the defendant, or some or one of the defendants, if more than one, shall not, within sueh time as shall be prescribed in that behalf by any general order of the Lord Chancellor give notice to the plaintiff, or his solicitor, that he or they desire the evidence to be oral, the plaintiff and defendants respec- (a) See note (a), ante, p. 42. (b) Issue is joined upon the filing of the replication, and the de- fendant may then proceed to examine his witnesses ; the plaintiiF may likewise proceed to examine his witnesses as soon as notice of the repli- cation has been duly served. Order 93 of 8th May, 1845. {c) The Court ordered the evidence to be taken under the provisions of the Act and these Orders on the application of the plaintiff, upon being satisfied that it was a case in which viod voce evidence would be best, although the application was opposed by the defendant, he having at one time been ready to consent to its being taken under the Act. Cable V. Cooper, 16 Jur. 969. So upon the application of defendants, the Court made a similar order in a case in which a witness had already been examined de bene esse, but from the judgment of the Court in that case, it may be collected that the cases contemplated by the above order were those in which the evidence may have been taken either altogether or to a great extent according to the old practice, and not those cases in which issue had been joined simply, Macintosh v. The Great Western Railway Company, 20 L. T. 77, 16 Jur. 1012. A similar Order was made in Howard v. Howard, 45 L. O. 86. 78 EVIDENCE. [Class XIII. 15&16V.C.86. tively shall be at liberty to verify their respective cases by afHdavit. 7 Aug. 1852. The time w ithin which the plaintiff i n any suit commenced Times for giving by bill . IS to give the d efendant nojice of the modejn whicTi notices. jjg desires that the evid ence to be adduceil in the cause shall be taken, is to be seven days after issue ioin ed therein (a"), and if the plaintiff shall not, within such time,, give any such notice, or if th e p laintiff shall give such notice, and shall therein desire the evidence to be aSctuced upo'n'affidavit, the plai ntiff and defendant respectively shall be at liberty to v erify th eir respective cases by aflSdavit , unless the defend- ant, or some or one ol the defendants if more than one, - shall, within f ourteen days after the expiration of the said period of seven gay s, give notice to the plaintiff, or his soli- citor, that he or they desire the evidence to be oral. 1S&16V.0.86. When any of the parties to any suit commenced by bill Evidence may be desires that the evidence should be adduced orally , and gives quired?tat'sub"' notice thereof to the opposite party as herein-before pro- ?Mei"tothemaer vided, the s ame sha ll be t aken orally, in the manner herein- after provided ; provided, that if the evidence be required to be oral merely by a party without a sufBcient interest in the matters in question, the Court may, upon application in a summary way, make such order as shall be just. Sec. XXXI. All witnesses to be examined orally under the provisions oral examinations of this Act shall be SO examined by or before one of the ducted. ' examiners of the Court, or by or before an examiner to be specially appointed by the Court (6), the e xam iner being "^^J^^ Jurnished by the plaintiff with a copy of t he bUT and of the ^ answer , if ^nyi Iti " tBe^ause ; and s uch examination shall take place in the p resence of the parties , th eir counse l, soli- citors, or agentj, and the witnesses so examined orally shall be subject to cr oss-examinat ion and re-examination ; and such ex aminatio n, cross-examination, and re-examination sTiall be conducted as nearly as may be in the mode now in use in C ourtj of co mmon law with respect to a witness a bout t o go abroad, and not expected to be present at the trial of a cause (c). of the Court. (o) See note (6), ante, p. T7. (6) See Cook v. Hall, 16 Jur. 1008. (c) The examination should be conducted by the same rules as the examination of a witness on a trial at nisi prius. 1 Archbold's Pr. by Chitty, 317 (8th ed.) For the rules as to the examination of witnesses at Sect. LJ evidence. 79 The de positions taken upon any such oral examination as 15&16V.C.86. aforesaid shall be t aken down in writing by the examiner , See. xxxii. ~ not ordinarily by question and answer, but in the form "of a ^"°^'"'"™° narrativgj^), and when completed shall be read over to the witness, and si gned by him in the presence of ' tlie parties, or such of them as may think fit to attend: Provided always, that in case the witness sh all refuse to sjct the said deposi- tions, then the exammer s hall sign the same, and such ex- aminer m ay, upon all examinations, state any special matter to the Court as he shall think fit : Provided also, that it shall be in the discretion of the examiner to put down any parti- cular question or answer, if there should appear any speciat reason for doing so ; #nd any question or questions which may be o bjected to shall be no ticed'o'r reterre d to bythe ex- aminer in or upon the depositions , and he shall state his op inion thereon to the counsel, solicitors, or parties, and shall refer to su ch statement on the lace of the depositions, but he snaU not have power to decide upon the materiality or rele- vancy of any q uestion o r questions ; and the Court shall have power to deal with the costs of immaterial or irrelevant depositions as may be just. If a ny person produced before any such examiner as a See. xxxiii. witness shall r efuse t o be sworn, or to answer a ny lawful sued in case of"'" question put to him by the examiner, or by either of the to bTsworn or'"^ parties, or by his or their counsel, solicitor, or agent, the same mun/ng.*' "' *°" c ourse shall be adopted with respect to such witness as is n ow pursued in the case of a witness produced for examin- ation before an examiner of the said Court, upon written interrogatories, and refusing to be sworn, or to answer some lawful question (6) : Provided always, that if any witness nisi prius, see 3 Chitty's General Practice of the Law, 892 (1st ed.)j Starkie on Evidence, 166 (4th ed.) ; 2 Phillips on Evidence, 456 (10th ed.); 2 Taylor on Evidence, 928 ; Roscoe on Evidence, 137 (8th ed.) ; Best on Evidence, 490, and Cox's Advocate, 351. (o) And in the first person, 3 & 4 Will. 4, c. 94, s. 27, and Order 107 of the 8th May, 1845. (ft) A witness r efusing to be sworn ( Hennegal ». Evance, 12 Ves. 201), or refusing to answer (Ausfin'o. i'niTce, 1 Sim. 348 ; Bradshaw v. Brad- shaw, 1 Russ. & M. 358 ; Tippins v. Coates, 6 Hare 16, and on appeal, 12 Jur. 339 ; Wisden ». Wisden, 6 Hare, 549), will he ordered to attei^ j the examiner and be examined in four days after personal service of the order or stand committed. The application for this purpose is ex parte, and is'iriade upon an aJHciavit of the personal service of the subpoena and of the written notice therein referred to, of the time and place of the examination, and the examiner's certificate of the witness's default. This order must be personally served, and upon affidavit of service and 80 EVIDENCE. [Class XIII. 15&16V.C.86. shall demur or object to^ny question or questions which may be put to him (a), the qu estion or questions so put, and the de murre r or objection of the witness thereto, shall be taken down b y the e xaminer, and transmitted by him to the Record Office of the said Court, to be there filed ; and the v alidity of such demurrer or objection shall be decided by the Court, and the cost s of and occasioned by such demurrer or ob- jection shall be in the discretion of the Court. When the examination of witnesses before any examiner shall have been concluded, the original depositions, authen- ticated by the signatui-e of such examiner, shall be trans- mitted by him to the Record Office of the said Court, to be there filed, and any party to the suit may have a copy thereof iSeo. xxxiv. Depositions to lie filed in the Re- cord Office. the examiner's certificate of default, an order is made upon motion of course for the committal of the witness, upon which a warrant is issued by the Lord Chancellor and delivered to the tipstaff for the apprehension of the witness and his custody in the Queen's Prison, where the wit- ness must remain until he not only submits to his duty as a witness, but has paid the costs incurred by his contempt. A witness thus dealt with will, after he has put in his examination and paid or tendered all costs, and upon production of the examiner's certificate of the examination being taken and complete, be discharged upon motion or petition j or he may be discharged by the party at whose instance he was committed, if the keeper of the prison can he prevailed upon to take such a discharge ; •\ see Hinde, 329, 330 ; Smith's Handbook, 304, 305. Qt, i nstead of the \c ourse above poitited out, the witness may, w hen the first orSeFB asTeeiT' job tained , be procee3e(l'"gainst by attachment, u nder the lath Order of Au'gOBl, ISil ; Smith's Handbook, sfio, n., tnat is to say, in the same manner as if he had been a party to a cause ( not " in a matter," Re Lovell, 9 Bea. 332 ; Re Blake and Young, ib. 209 ; Re Taylor, 10 Bea. 221). ^he course by attachment is to serve upon the wit- ness a copy of the first order, such copy being indorsed as follows, viz., " If you, the within named A. B., neglect to obey this order by the " time therein limited, you will he liable to be arrested under a writ of " attachment, issued out of the High Court of Chancery or by the " serjeant-at-arms attending the said Court, and also be liable to have " your estate sequestered for the purpose of compelling you to obey the " same order," see Order 12 of 26th August, 1841, as amended by Order 6 of 11th April, 1842. On due service of this order (i. e. personal service before the expiration of the four days, Duffield v. Elwes, 2 Bea. 268) an attachment will be issued, and if the witness be taken on the attachment and do not obey the order, a sequestration may be issued against his estate and effects, or on a return by the sheriff of mm est inventus to the writ of attachment there may issue either a sequestration in the first instance, or otherwise an order for the seijeant-at-arms, and such other process as has been hitherto used upon a return of nan est inventus made by the commissioners, named in a commission of re- bellion, issued for the non-performance of an order or decree. Order 11 of 26th August, 1841, as amended by Order 6 of 11th April, 1842. (a ) For the practice relating to demurrers by witnesses, see Gresley on Evidence, 77, (2nd ed.), and the subsequent cases of Tipping v. Coates and Wisden v. Wisden, supra; Tristram v. Roberts, 10 Jur. 125 j Walsh V. Trevanion, 15 Sim. 577 j Pearse v. Pearse, 1 De G. & S. 12, and Gore V, Bowser, 5 De G. & S. 30. Sect. 1.] evidence. 81 or of any part or portion thereof upon payment f or the same l5&16V.c.n6. in such manner as shall be provided by any General Order of the Lord Chancellor in that behalf. It shall not be necessary to sue out any commission for the Seo.xxxv. « . .,.,..,.. „ , Commissions for exammation of any witnesses writhm the jurisdiction of the examination of said Court ; and any examiner appointed by any order of the ^nre^withT Court shall have the like power of administering oaths as Commissioners now have under commissions issued by the Court for the examination of witnesses (a). Not withstan ding that the plaintiff or the defendant in any Sec. xxxvi. . . ''V "^ ,, , *■" 4 " — , - ■Y" " '*"" . "1 . Affidavits by par- suit m the said Court may have el ected that the eviden ce in ticular witnesses, the cause should be ta ken oral ly, a ffi3avits by pa rticula r "acts. ° ^^ "^ wit nesses, or affidavits as to particular facts or cir cumsta nces, may, by consent, or by leave of the Cou rt obtained upon notice, be used on the hearing of any cause (6), and such consent, with the approbation o f the Court, may be given by or on the part of married women or i nfant s or other persons under disability. (a) The power conferred upon Commissioners for the examination of wit- nesses, was to examine them upon their corporal oaths, taken upon the Holy Evangelists, or, in the case of Quakers, upon their solemn affirmation and declaration, or in such other solemn manner as is or may be autho- rized by law, see the form of commission. Order 103 of 8th May, 1845. For the form of affirmation by Quakers, see 3 & 4 Will. 4, c. 49, s. 1 ; by persons having been Quakers, 1 & 2 Vict. c. 77, and by Separatists, 3 & 4 Will. 4, c. 82, s. 1, and as to the mode of swearing persons of other religious denominations, see Gresley on Evidence, 65, n. (/) (2nd ed.) (6) By the 13 & 14 Vict. c. 35, s. 28, it is enacted that, notwithstanding any rule or practice of the said Court to the contrary, it shall be lawful for the Court, at the hearing of any cause or of any further directions therein, to receive proof by affidavit of all proper parties being before the Court, and of all such other matters as are necessary to be proved for enabling the said Court to order payment of any monies belonging to any married woman, and of all such other matters not directly in issue in the cause as in the opinion of the said Court may safely and properly be so proved. Under this Act affidavits have been admitted to prove that certain persons before the Court were the whole of a class, Bush v. Watkins, 14 Bea.33; andDevey ».Thornton,9 Hare,p. 233 ; that some of the plaintiffs possessed the character ascribed to them by the bill. Fowler v. Reynal, 3 Mac. & G. 500 ; that the number of persons represented by the plaintiffs suing on behalf of themselves and others exceeded twenty in number, Leathart «. Thorn, 15 Jur. 162 ; that no appointment had been made under a particular power, Devey v. Thornton, supra ; and to verify the proportions of a fund distributable amongst creditors. Bear v. Smith, 5 De G. & S. 92 ; but an affidavit for the purpose of showing that a marriage was entered into on the faith of a certain arrangement was re- fijsed in Hoghton v. Hoghton, 21 Law J. 482. O 82 EVIDENCE. [Class XIH. 15&16V.C.86. The e vidence o n both sides in any suit in the said Court, Sec. xxxviiT whether taken orally or upon affidavit, shall be cl^gi within ^dSsldf ""'" such time or respective times after issue joined (o) as shall in that behalf be prescribed by any General Order of the Lord Chancellor, but with power to the Court to enlarge the same as it may see fit(6); and after the time fixed for closing the evidence no further evidence, whether oral or by affidavit, shall be receivable, without special leave of the Court pre- but witnesses by viously obtained for that purpose : Provided always, that any tS,lect'to°o«i witness w ho has made an affidavit filed by any party to a S rISS'i™ cause sliall be subject to'oral cross-exam inat i o^ within such ''""• time after the time fixed for closInglKe evidence as shall be prescribed in that behalf by any order of the Lord Chancel- lor, by or before an examiner, in the same manner as if the evidence given by him in his affidavit had been given by him orally before the examiner, and after such cross-ex- amination may be re-examined orally by or on the part of the party by whom such affidavit was filed; and such witn e s s shall be boun d to attend before such examiner to be so cross- examined and re-examined, upon receiving due and proper notice, and payment of his reasonable expenses , in like man- ner's if he had been duly served with a writ of subpcena ad testificandum before such examiner (c) ; and the expenses Service of notice of disputing an act of bankruptcy may also be proved by affidavit upon the hearing, 12 & 13 Vict. c. 106, s. 235, infra, p. 86. (a) Issue is joined upon the filing of replication, see note (6), anU, p. 77. (b) Applications to enlarge the time for closing evidence are to be made at chambers. See Notice of 10th November, 1852, stuck Up in the Judges' chambers, post. Class XVII. (c) At law no witness is bound to appear in a civil case unless his ^ , appears is he bound to give i charges are actually paid or tendered, except he rSide within the weekly bills of mortamy, ari3 be summoned To give evidence wiBiin tfisw, in whiich case "it'iB usual to leave a shilling with the subpoena ticket. The necessity of this previous tender arises from the special provision of 5 Eliz. c. 9, s. 12. With respect to compensation for loss of time, the general law laid down by the Court is, that it ought not to be allowed except to professional men, but the practice of the taxing officers at law appears to be at variance with the cases, and witnesses are allowed for loss of time. The rules in equity are substantially the same as those at law, Hinde, 328 ; Smith's Hand-book, 800. A copy of the subpcena and of the indorsement thereon is delivered personally to the witness, and at the same time the original subpoena is produced and shown to him. A notice of the appointment to attend Sect. l.J evidence. 83 attending such cross-examination and re-examination shall 15&16V.C.86. be paid b y the parties respectively, in like manner as if the vritness so to be cross-examined were the witness of the party c ross-examini ng, and shall be deemed costs m the cause oi'~ s uch partie s respectively, unless the Court shall think tit otW- wise to direct. The e videnc e on both sides i n any cause, to be used at the 7 Aug. 1852. hearing thereof, whether taken orally (and including the cross- Time for closing examination and re-examination of any witness or witnesses) crosB™xamtai^™ or taken upon affidavit, is to be closed within nine weeks *'™* after issue joineii therein, except that any witness who has made a n" a ffidav it intended to be used by any party to such cause at the hearing thereof shall be subject to cross-ex-, aminatio n within one month ( a) after the expiration of such period of nine weeks. No affidavit filed before issue joined in any cause shall be Ora. xxxiii. ". J ■ I ■ " " . , „ , ... Affidavits filed be- received or r eceivable a t the hearing t hereof, unless within fore issue joined. one month (a ) after i ssue joined notice in writing shall have ■ been given, by the party intending t o use'ttie same, to the opposite party of his intention in that behalf. Any party desiring to cross-examine a witness who has Ord. xxxiv. , fv. 1 • • ■ , , , , Notice of cross- made an atndavit in any cause intended to be used at the examination. hearing th ereof, shall give forty-eight hours ' notice to the party on whose behalf such affidavit was filed, or to the party intending to use the same, of the time and place of Such intended cross-examination, in order that such party may, if he shall think fit, be present at such cross-examination. The r e-examination of any such witness is i mmedia t ely t o Ord. xxxy. follow h is c ross-e xamination, and is not to be dela yed to a future period. - Upon the hearin g of any cause depending in the said 15&16V.C.86. Court, whether commenced by bill or by claim, the Court , courtmayrequire if it shall see fit so to do, may require the pr oduction and of witnesses or o ral examination before itself of any witness or party in the u^it^ ^ °" JO- 3^, before the Examiner is served on the witness, either together with the copy of the subpoena, or within a reasonable time before that fixed for the examination ; but within what precise period before the time fixed by the examination it is necessary to serve the subpoena and the notice, does not appear to be settled. Smith's Hand-book, 301. yC (a) Lunar month. See note (6), ante p. 42. ■ ' g2 84 EVIDENCE. [Class XIlI- 1S&16V.C.86. cause (a), and may direct t he costs of and attending the pro- duction and examination of such witness or party, to be paid by such of the parties to the suit or in such manner as it may think fit. Sec. XL. Any party in an y cause or matter depending in the said diims! &c.°" Court may, b y a writ of subpoen a ad testificandum or duces tecum, require the at tendance of any witness before an ex- arainer oTTBe'-said Court, or' befor^"an "'e xaminer specially appointed for the purpose, and examine su ch witness orally, for the pu rpose of using -his evidence upon any claim, motion , p etition , or other p roceeding before the Court, in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause ; and any party having made an affidavit to be used or which shall be used on any claim, motion, petition, or other proceeding before the Court s hall be boup d on beina; served with such wr it to attend be fore an examin ar. for the purpose of being c ross-examined: Provided always, that the Court shall always have a discre- tion ary power o f acting upon such evidence as may be before it at the time, and of making such interim orders or other- wise as may appear necessary to meet the justice of the case. (a) The Chancery Commissioners say, "We think that the Court should also, in every case and on every occasion, have the power to re- quire the production of a witness for its own satisfaction. By the adoption of this system, we hope that great advantages will he obtained. That in all those cases in which there is little contention as to the facts, and in all those in which the matters to be deposed to, or the witnesses by whom they are to be deposed to, are of such a character as that the opposite party would not desire to have an opportunity of cross-examining or weighing the exact words of the witness, the parties and the Court would he satisfied with the affidavit. In every other caseprovisions would be made for a really satisfactory and efficient examination and cross-examination of the witnesses. At present, many persons who are, when subpoenaed, willing to come forward, and are able to give most important testimony, decline making affidavits, in order to avoid the appearance of being volunteers and partisans of the one side against the other ; but who, if the alternative were that they would be subpoenaed to give evidence, would willingly make their statements in writing in the form of affidavit. We think too, that affidavits would be very much improved in their cha- racter, if the solicitor preparing them, and the persons deposing to them were aware that the deponents would in all cases be liable to cross- examination." Report of 21 Jan. 1852, p. 22. In a case where there was not sufficient evidence for the plaintiff to induce the Court to direct an issue, it refused to call for an oral exami- nation on the mere speculation as to what evidence might come out on such examination, and the Court intimated that if a case had been made, it would have examined witnesses, as there was but one single issue, and Sect. 1.] evidence. 85 Any party i n any cause or matter requiring the attendance 7 Aug. 1852. of any witness before an examiner, for the "purpose of his Ord. xxxvi. , . ! 3 \ ' i r • 1 • 1 ■ . Notice of exami- bemg exammed or cross-exammed, with a view to his evi- nation. dence being used upon any claim, motion, petition, or other proceeding before the Court, not being the hearing of a cause, shall give to the opposite party or parties forty-eight hours' notice a t least of his intention to examine such wit- ness, and of the time and place o f such examination, unless the Court shall in any case think fit to dispense with such notice. And where it is desired to cross-examine any party, ord.xxxvii. whether a party t o the cause or matter or not, who has made examination.^ an affidavit to be used, or vfhich shall be used on any claim, motion, petition, or other proceeding before the Court, not being the hearing of a cause, the party desiring so to cross- examine such deponent shall give spch notice t,o the,opaDsite • -^z.^ fi'-X^Mc- party as is required by Order XXXTv(o)/w'tnTCTerence to the cross-examination of a witness who has made an affidavit to be used on the hearing of a cause. In cases where it shall be necessary for any party to any 15&I6V.C.86. cause depending in the said Court to go into evidence sub- Evidence^subse- sequently t o t he hearing o f such cause, such evidence shall gj^nt to the heat- be t aken as nearly as may be in the manner herein-before p rovided with reference to the taking of evidence with a view to su ch hearing ( &). All the above orders with reference to the examination, 7 Aug. 1852. cross-examination, and re-examination of witnesses (c) shall Examination, &o. extend and be applicable to evidence taken in any cause sub- sequemiy to the' s equently to th e hearing thereof. hearmg. such issue was a fit subject for such an examination, Wilkinson D. Stringer, 16 Jur. 1003. In Smith ». Edwards, 16. 1041, the evidence of the fact that one of the defendants was out of the jurisdiction being in- sufficient, application was made at the hearing of the cause for the exa- mination of the plaintiff vivi. voce to prove such fact j but the Court thought that the proper course was to let the cause stand over till another day, in order to give the plaintiff an opportunity of proving his case in his own way. (a) See ante, p. 83. (6) Where there has been a decree to examine the defendant on inter- rogatories, he cannot be examined vM voce under this section, but the case must be proceeded with according to the old practice. Booth v. Tomlinson, 45 L. O. 69. (c) i. e. the Orders Nos. 31 to 37, ante, pp. 78, 83, and 84, and sufra. 86 EVIDENCE. [Class XIII. Sect. 2. — Affidavits(a) generally. [And see ante, Sect. 1 i and for affidavits in particular cases, see the respective titles.] 15&16V.C.86. Every afBdavit to be used in the said Court shall be di- sec. XXXVII. vided into paragraphs, and every paragraph shall be num- ^"-lf^F ! : bered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject (6). Sect. 3. — Other matters relating to Evidence. 12 & 13 V. That in all suits in equity, other than a suit brought by See." ccxxxv. *^ assignees for any debt or demand, for which the bankrupt tadta'^^md act of ™g^' ^^'^^ sustained a suit in equity had he not been ad- bankruptcy. judged bankrupt, and wheth er at t he suit of or against the assignees, no proof shall be required at the hearing of the petitioning creditor's debt, or of the trading or ant nf bank- ruptcy respectively, as against any of the parties in such suit, except such parties as shall, within ten days (d) after rejoin- (o) In the 15 & 16 VicL c. 86 (see s. 66); in the General Orders of the 7th August, 1852 (see Order 48), and in the General Orders of the 16th Octoher, 1852 (see Order 61), the word " affidavit" includes affir- mation, and in the General Orders of 22nd April, 1850 (see Order 35), the word " affidavit" includes affirmation and declaration of honour. Affidavits and affirmations may now be sworn before the Clerks of Record and Writs and the Clerk of Inrolments, 16 & 16 Vict c. 87, s. 29, ante, p. 30, and note (a), and the chief clerks of the judges, 15 & 16 Vict c. 80, s. 30, post. Class XVII. In a very pressing case an affi- davit will be allowed to be sworn in open Court, The Mercers' Company V. The Great Northern Railway Company, 14 Bea. 20. In Scotland or Ireland, or the Channel Islands, or the colonies &c, affidavits may be taken before any judge. Court notary public, or person authorized to ad- minister oaths there, or before consuls or vice-consuls in foreign parts, out of her Majesty's dominions, and the judges and officers of the Court are to take judicial notice of the seal or signature, 15 & 16 Vict. c. 86, s. 22, ante, p. 62. (6) And affidavits are to be expressed in the first person, otherwise the costs thereof are not to be allowed on taxation. 6nterff'126 and 127 of 8th May, 1845. (c) This is the Bankrupt Law Consolidation Act, 1849. (d) Exclusive of the first and i nclusive of the last day, unless the last day shall happen to teill on a Sundav , Ch ristmas-da y, cl ood Frida y, Monday or Tuesday in Easter wee k, or a day'appointed for a public fast s. 276. or i nanKSgiving, in whic6 case tHe time shall be reckoned exclusive of that day also; Sect. 3.] evidence. 87 der (a), give notice in writing t o the assignees of their inten- 12 & 13 V. tion to d ispute so me and which of such matters ; and where "• ^^^' such notice s hall have been given, if the a ssignees shall prove the matter s so disputed, the costs occasioned by such notice shall, if the Court see fit, be p aid by the parties so giving such notice, and the service of such notice may be proved by affidavit upon the hearing of the cause (6). On the trial of any iss ue join ed, or of any matter or ques- 1 4 & 15 V.c.99. tion, or on any inquiry a rising in any suit, action, or other Paittes^to be ad- proceeding in any Court of justice, or before any person hav- ™s|es!°^" ing by law or by consent of parties authority to hear, receive and examine evidence, the p arti<^^ thereto a nd the persons in whose behalf any such suit, action or other proceeding may be brought or defended shall, except as hereinafter excepted , be c ompetent a nd co mpellable to give evidence, either vivd voce o r by d eposition , according to the practice of the Court, on behalf of either or any of the parties to the said suit, action or other proceeding (c). It shall be lawful for the Court , in cases w here it shall think 15& 16 V. c.86. fit s o to do, to direct th at, in taking th e account ( d), the books {Extract.) of account in which the accounts required to be taken have evidence.^"""" been kept, or any of them, shall be taken as primd facie evi- dence of the truth_ of the matters therein contained, with l iberty t o the parties interested to take such objections thereto as they may be advised. (a) Sic, quare, "Replication." (b) This provision is a repetition, with some alterations, of s. 91 of 6 Geo. 4, c. 16. (c) A married woman w ho is a party to the suit cannot give evidence for or against ner nuspanS. ^ The Act only removes the objection to this evidence wnicn arises from the fact of the witness being a party, and leaves every other cause of objection unaltered j so, for instance, in the case of a solicito r, his client is privileged and has a right to say that his s olicitor snail not be examinea against him, to give in evidence confi- deVftTal communications between tnem; again, the Act says that parties shall be compellable to give evidence, but suppose a party required to be e xamined on matters which would expose hi m to petal ties, the Act leaves the objection to his being compelled to give ejiaenc e untouchea. See AicocK v. Aicock, 16 Jur. 653. »— — ' * Since this Act it is no longer necessary to obtain the common order for leave to examine a defendant, Swann v. Wortley, 9 Hare, 460. A party may obtain the usual commission for the examination of himself as a witness de bene esse on the ground of his being of great age and out of the jurisdiction, Forbes v. Forbes, ib. 461 ; and the power of the masters to examine witnesses vivi voce (see Order 69 of 3rd April, 1828) is ex- tended to the examination of parties, Re Kirby's trust, 16 Jur. 758. (d) See the former part of this section, ante, p. 34, and see note («), ib. ( 88 ) CLASS XIV. SETTING DOWN CAUSES, ETC. 23 Feb. 1850. Causes for hearing may lie set down before L. C. or V. C. without flat. I The like as to causes fur further I directions and equity reserved, and pleas, de- murrers and ex- ceptions. 1 March, 1850. Regulations as to causes for hear- ing. As to causes for further directions, &c. FAnd see titles "Claims," post, Class XXIV., and " Special Cases," post, Class XXV.] That all causes required to be heard before the Lord Chancellor or one of the Vice-Chancellor s shall, on and after the first day of March next, be set down for hearing by the registrars, upon p roduction t o them of the c ertificate of the proper officer that the same is in a fit state t o be set down for hearing, without any fiat, order or direction from the Lord Chancellor for that purpose. That, on and after the first day of March next, all causes for further directions, or on equity reserved, after a trial at law shall have been had, or the certificate of a Court of law (a) shall have been obtained in pursuance of a decree or order pronounced by the Lord Chancellor or one of the Vice- Chancellors, and all pleas, demurrers, exceptions (6), and nh- jJ^^^%^t'M-tY 1845. ii^pBtis set downSltef thethree weeks, il wifr Bi be struck out of the book of causes with costs. See Neck v. Gains, U Jur. 763 ; 1 De G. & S. 223. (i) The deposit on appeals is now 201., and on exceptions to Masters' reports 101. Orders 41 and 42 of 3rd April, 1828. Deposit. ( 90 ) [Class XV. CLASS XV. DECREES AND ORDERS. Sect. l.—Form, drawing vp and enrolling, 2. — Other matters relating to Decrees and Orders. Ord. VIII (i). Form of order di- recting accounts or inquiries. [For Decrees iind Orders in particular cases, see the respective heads.] Sect. 1. — Form, drawing up and enrolling. 160ot.l852(o). In all cases in which by any o rder (c) any a ccounts are di- rected to be taken, or inquirie s to be made, e ach direction shall be numbered, so that, as far as may be, each distinct account and inquiry may be designated by a number, and such order may be in the form set forth in Schedule (C.) to these orders, with such variations as the circumstances of the case may require (d). SCHEDULE (C). Form of Order, This Court doth order that the following accounts and inquiries be taken and made ; that is to say — 1 . An account of the personal estate not specifically bequeathed of A. B., deceased, the testator in the pleadings named, come to the hands of, &c. 2. An account of the said testator's debts. (a) These orders came into operation from and after the first day of Michaelmas Term, 1852. See Order 60. (6) This order is applicable to all cases, whether originating in chambers or not. . (c) The word " order" includes dec ree and decretal orde r. See Order 61, poa. Class X\ni., note. - (d) For the introductory statements and recitals in decrees and orders, see 3 & 4 Will. 4, c. 94, s. 10, and Order 27 of 21st December, I8S3, and the forms subjoined thereto ; and for some of the requisites in orders to be acted upon by the Accountant-General, see Order 28 of the same date. Sect. 1.] decrees and orders. 91 3. An account of the said testator's funeral expenses. 16 Oct. 1852. 4. An account of the said testator's legacies. 5. An inquiry what parts (if any) of the said testator's personal es- tate are outstanding or undisposed of (a). And it is ordered, that the said testator's personal estate not specially bequeathed be applied in payment of his debts and funeral expenses in a course of administration, and then in payment of his legacies. And it is ordered, that the following further accounts and inquiries be taken and made ; that is to say — 6. An inquiry what real estate the said testator was seised of or entitled to at the date of his will and at the time of his death. 7. An inquiry what encumbrances affect the said testator's real estate. 8. An account of the rents and profits of the said testator's real estate received by, &c. 9. And it is ordered, that the said testator's real estate be sold. And it is ordered, that the further consideration of this cause be adjourned, and any of the parties are to be at liberty to apply as they may be advised. Minutes op Decrees — Counsel's brief of the pleading s Directions as to and the correct title of the cause, the names o f the several minutes, decrees defendants being corrected from their answers and the names "*" °" of the guardians o f a ny infants i nserted. If a memorandum of seroice of copy hill on any of the defendants has been entered — The order to enter memo- randum, with the record and writ clerk's certificate of the entry thereof and of no appearance by the same de- fendants. If a traversing note has been filed, and the defendant does not appear at the hearing — The record and writ clerk's certificate that the note ha s bee n filed, an affida- vit of service of a copy of the note and of subpoena to hear judgment. If the bill has been, taken fro confesso — The order for the record and writ clerk to attend at the hearing with the record of the bill and all previous orders a s to the contempt . (a) See Order 45 of 26th August, 184.1. (6) These directions are stuck up in the Registrar's office, and are headed " Directions to solicitors as to the papers and documents to be left on bespeaking minutes, decrees or orders in the Chancery Registrar's office." They were issued previously to the alterations In practice by the enactments and orders of 1852, and therefore, in some few instances, are not quite consistent with the new practice. DECREES AND ORDERS. [ClASS XV, If any exhibits proved in .the cause are to he entered as read — A l ist and correct description of each in the fol- lowing form : — " An Exhibit marked A, being the Indenture dated in the pleadings mentioned. " An Exhibit marked B, being a Letter dated , and ad- dressed by the plaintiff to the defendant. " An Exhibit marked C, being an Extract from the Register of Baptisms for the parish of , so far as relates to the bap- tism of A. B., Sec, &c., &c." If any admissions are to be entered as read — The ori- ginal p aper of adm issions, s igned by the parties or their solicitors, must be produced to be indor sed b y the regis- trar, and must be filed in the Repor t Office , before the order is left to be passed. If any documents have been proved at the hearing vivd voce or by affidavit — The order authorizin g them to be so proved, with the o ffice copies of th e afBdayits (if any) andthe documents proved. Minutes of Orders on further Directions — Counsel's brief, the o riginal d ecree and s upplemental decrees (if any), ortne ord er on furt her directions, reserving the further di- rections on which the cause is heard, and any subsequent or ders to revive ; the o ffice copy of the Master's k eport, an7 the o rder confirmin g the same absolutely. If a memorai^dutn of service of copy bill has been en- tered — A certi ficate o f no appearan ce having been en- tered. If the order on further directions deals with any purchase • money — C onsent briefs for the p urchaser , or affidavits of n otice of the intended ap plicatio n of the purcKase money, and t h at the co nveyance to the purchaser has been duly executea. ' Minutes and Orders on Motion — C ounsel's brief , with h is indors(;ment nf the order m ade ; the no tice of motion (if any) a nnexed , and o ffice copies o f the affidavits and the other evidence iwed on the hearing of the motion. Minutes and Orders on Petition — The o riginal petition and co unsel's briefy with his indorsem ent of the order made, ~ any e vidence used on the hearing, and any decree , order, or office copy report on which the petition is founded. "~~ Sect. 1.] decrees and orders. 93 Minutes and Orders for Payment of Purchase Money INTO Court — The office cop y report of purchase , the order confirming the same absolute, and the conditio ns of sale. If any deposit shall have been paid — I'he order autho- rizing the deposit to be taken, the affidavit s howing the amount thereof on each lot , and the Accountant-Gene- ral's certificate of the payment of the deposir intcrT?"our't7 Minutes and Orders under Acts authorizing Public Works. 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 A ccountant-General's certificate ^ of the payment into Court of the sum sought to be dealt with, and also the Accountant-General's certificate of the fund in Court to the credit of the undertaking ; and when the order directs the carrying over the money to a separate ac- count, or payment o t the same out of Court to any per- son absolutely entitled thereto, also an affidavit of the petitioner verifying the petition, and of no adverse inte- rest or claim. Minutes and Orders vacating Receiver's Recogni- zances— An office copy of the receiver's recognizances from the office of the clerk of enrolments. Order arsolute under Winding-up Acts — The affidavit of the servi ce of the petition, and the London Gazette an J Newspapers containing the advertisement thereof. Order on Appeal from Master's Decision under Wind- ing-up Acts — The Ma ster's cer tific at e of his_ decision. Minutes of Decrees and Orders dealing with any Fund in Court. Whenever any fund in Court is to be dealt with — The Accountant-General's certificate, and if the funds are restramed by any order, the restrai ning order , or an office copy t hereof. Where payment out of Court is ordered to executor or administrator —The probate o r let ters of administratio n. In all cases of Non-Appearance of any party or person served at the hearing of any cause, matter, petition or mo- tion — An affi davit of service on the party or person not ap- pearing. DECREES AND OKDEES. [Class XV. Ord. IV. Caveat. 7 Aug. 1852(a). Ord. II. Time for enrol- ment. Ord. III. Special order. Generally any docum ents or evidence required to be produced to the Court s houi? be left with the registra r on bespeaking the minutes of the decree or order. N. B. Solicitors and their clerks, on applying respecting minutes or orders, are requested to state by which judge and on what day the order was pronounced, and where the order is made on any ex parte matter, the title thereof as the same appeared in the Cou rt japer^ That all decrees and orders , and all dismissions p ronounced or made in an y cause, claim o r niatter, in this Court, which shall be enr olled, shall be so enrolled within six cale ndar months after the same shall be so pronounced or made re- spectively, and not at any time after wit hout special leave of the Court, such leave to be obtained in manner next Iherein- after mentioned (5). In case any party is d esirous to enrol a de cree, or order, or dismission a fter t he expiration of six calendar month s from the time the same* shall have been made, he shall obtain an order for that purpose, and which order, unless made by consent of the adverse party, or on motion and notice to all the parties, shall be a conditional order in the first instance, but shall b ecome absolute withour^rther order, unless cause is shown agains t it within twenty- eight days a fter service of the order. That where a caveat is entered with the proper officer to stay th e sign ing o f the docket of the enrolm ent of any decree, order, or dismission, such caveat s hallDe prosecuted with effect within twenty-eight days( c) a fter the, docket of such decree, order or dismission shall lie left to be signed with the proper officer by the party who entered the same (d), other- wise such caveat shall be of no force ; and the docket of such decree, order or dismission may, immediately after the ex- Co) These orders took effect on the 28th October, 1852. See Order 7. (A) By the previous practice the order to enrol nvnc pro tunc after the expiration of six calendar months was of course, Robinson v. Newdick, 3 Mer. 13. The enrolment is complete by the delivery of the docket to the proper officer for signature, Barnes v, Wilson, 1 Russ. & M, 486, (c) Clear days, Robinson v. Newdick, supra. (d) And notice given by such officer to the opposite party, Burnet v. Theobald, 1 P. Wms. 609 ; Robinson ti. Newdick, supra. Sect. 1 & 2,] decrees and orders. 95 piration of the said twenty-eight days, be presented to be 7 Aug. 1852. signed, as if no such caveat had been entered (a). That no enrolment of any decre e, or der or dismission shall Ord. v. i_ 11 ""tT"^?^"'^"' . ■ . ' I 5""^"^ ^^""""^ Iiimit of time- be allowed alter th e expiration of fi ve years from the date thereof (6). That the Lord Chance'.lo r. either sitting alone, or with the ord. vi. Lords Justices, or e ither of them , shall be at lfi{>erty, wKereTTtime. shall appear t'o him under the pec uliar circumsta nces of the case to be just and expedient, to enlarg e the periods herein- before appointed for a rehearing , or an appeal (c ), or for an enrolment (c{). Sect. 2. — Other Matters relating to Decrees and Orders, That if any decree or order shall be pronounced in any 12 & 13 v. cause depending m any Court of Equity, or any order shall <=• "P-l-l^h be made m any matter of bankruptcy of lunacy, asainst any Trader disobeying ; ■ ■*■! ; ■" T i order of Court for such trader (/), ordering such trader to pay any sum of payment of money ' II I , - 1 n T , , ^ 4 ' ^ ' -, anact of banlt- money, andT such trader shall disobe y such decree or order, mptcy. the same having been duly served upon him, the person en- t itled to receive such sum under such decree or order, or in- terested in enforc ing the payment thereof pursuant thereto, ma y apply to the Court by which the same shall have been pronounced to fix a peremptory day for the payment of such money, which siiall accordingly ITe fixed by an orcterfor that purpose ; and if such trad er, being pe rsonally served with such last-mentioned order seven days before tlie day therein appointed for payment of such money, shall neglec t to pay the same, every such trader shall be deemed to have com- mitted an act of bankruptcy on the eighth day after the ser- vice of such order {£). (o) This order is a repetition, with some little alteration, of the General Order of 17th June, 1699. (6) Prior to this order there seems to have been no limit to the time for enrolling of a decree or order. (c) As to rehearings and appeals, see Order 1, post. Class XVI. (d) And see Order 21 of 8th May, 1845. (e) This is the Bankrupt Law Consolidation Act, 1849. (/) That is to say, any trader liable to become bankrupt. See s. 67. {g) This section is similar to s. 21 of 5 & 6 Vict. c. 122, the times fixed having been shortened from fourteen days to seven days, and from the fifteenth day to the eighth day. 96 DECREES AND ORDERS. [ClASS X V . 13 & 14 V. That where in any suit commenced or to be commenced in "• ^°('')- the Court of Chancery it shall be made to appear to the Court D!c?;e^nttilb- by affidavit that diligent search a nd inquiry has been made senceofatruBtee. aftg, ^„y person made a c iefendan t, who is only a truste e, to serve him w ith the process of the Court, and that he cannot be found, it shall bTTawIul for the said Court to hear and determine such cause, and to make such absolute decree therein against every perso n who shall appear to thera to be only a trustee, and not otherwise concerned in interest in the matter in question, in such and the s ame m anner as if such trustee had been duly served with the process of the Court, and had appeared and filed his answer thereto, and had also appeared by his counsel and solicitor at the hearing of such cause : Provided always, that no such decree shall bind, affect or in anywise pre iudice any person against whom the same" shall be made, witho ut service of process upon him as afore- said, his heirs, executors or ad ministrators, for or in respect of any estate, right or interest which such person shall have at tl>e time of making such decree for his own use or benefit, or otherwi se than as a trustee as aforesaid (c). (a) This is the Trustee Act, 1850. (6) This section is the same as s. 24 of 1 Will. 4, c. 60. (c) Proof by affidavit may be given at the hearing of the cause, De Crespigny v, Ketson, cited in Moore v. Yinten, 12 Sim. at p. 163. ( 97 ) CLASS XVI. REHEARINGS AND APPEALS. [And see Class I., Sect. 1, ante, and 10 & II Vict. c. 96, s. 2, post, Class XXVI., Sect. 2.] That all decrees and orders m ade under the provisions of 13 & 14 v. this Act shall be subject to re-hearing , appeal and review, °-35(a). and may be discharged and v aried, i n the same and the like Decreefand or-' manner as decrees and orders of the said Court made in suits ders under this instituted 'By bill. " Any order of the M aster of the Roll s or of any of the 22 Apr. 7 850(6). V ice-Chancello rs may be discharge d or varied by the Lord ordMs'on ci^s. C hancellor on motion. " That no appeal from any decree, order or dismission, or 7 Awg. 1852(c). a ny re-hearinp of the case on which such decree, order or Timefor.'ltaited. dismission is founded, shall be allowed, unless th e same is set " down for hearing, and the requisite notice th ereof duly served , within fi ve years from the date of a ny such decr ee, order or dismission respectively (rf). That the Lord Charicellor . either sitting alone or with the oid.vi. Lords Justices , or either of them, shall be at liberty , where tim"^°™*° ° it shall appear to him, under the peculiar circumstances of the case, to be just and expedient, to enlarge the periods herein- (o) " An Act to diminish the Delay and Expense of Proceedings in the High Court of Chancery in England." It relates particularly to Sp ecial cases , and to Sum mary proceedings by e xecutors a nd adminis- (b) These orders relate to Claims. The course of practice as to the opening and reply on an appeal from a decree or order made on the hearing of a claim, is the same as in the case of a suit by bill, Sims v. Helling, 16 Jur. 899. (c) These orders took effect on the 28th October, 1852. See Order 7. {d) Previously to this order there was no fixed time within which an appellant was bound to present his appeal, although there have been many cases in which he has been considered as precluded from appealing by his conduct The present term of five years has probably been fixed upon by analogy to the practice of the House of Lords. H 98 REHEARINGS AND APPEALS. [CtASS XVI. 7 Aug. 1 852. before appointed for a rehearing or an appeal, or for an en- rolment (o). The deposits now payable on setting down appeals (6) and exceptions for hearing shall continue to be payable, and such deposits shall be paid to and received by t he senior regist rar of the Court of Chancery for the time being. 15&16V.C.87 See. XLI. {Extract.) Deposit on. CLASS XVII. PROCEEDINGS IN THE JUDGES* CHAMBERS. [And see proceedings in the Master's office, next Class ; Claims, post, Class XXIV. ; proceedings by and against Executors and Trustees, post, Class XXYI. ; and the Trustees Acts, post. Class XXVII.] Power and Jurisdiction. From and after the first day of Michaelmas Term one thousand eight hundred and fifly-tn^o it shall be lawful for the Master of the Rolls and the Vice-Chancellors for the 15 & 16 V. c. 80 fc). Sec. XI. \ Master of the I Rolls and Vice- ... , , , , . , . , , I Chancellors to sit time being, and they are hereby required, to sit at chambers (at chambers. I •' ^ (o) And see Order 21 of 8th May, 1845. As to enrolment, see Orders 2, 3, 4 and 5, ante, pp. 94 and 95. (A) The deposit on appeals and rehearings is novr 201. Order 42 of 3rd April, 1828. (c) " An Act to abolish the Office of Master in Ordinary of the High Court of Chancery, and to make Provision for the more speedy and efficient Dispatch of Business in the said Court" Royal assent, 30th June, 1852. By s. 38 the Lord Chancellor and the Master of the Rolls and the Vice-Chancellors, or dny two of them, are required to make General Orders for regulating the times and forms, and mode of pro- cedure before the judges sitting at chambers, and their chief clerks, and generally the practice of the Court in respect of the matters to which the Act relates, and for regulating the fees and allowances to solicitors in respect to such matters, and the fees jiayable by suitors to the officers of the Court in respect of the business to be conducted before the judges sitting at chambers and their chief clerks : provided that no greater amount of fees is to be payable by the suitors to the officers in respect of the business to be conducted before the judges sitting at chambers and their chief clerks than was levied in respect of similar or analogous business in the Masters' offices. Class XVII.] powek and jurisdiction. 99 for the despatch of such part of the business of the said 15&16V.C.80. Court as can, without detriment to the public advantage arising from the discussion of questions in open Court, be heard in chambers, according to the directions herein-after in that behalf specified or referred to ; and the times at and during which they respectively shall so sit shall be from time to time fixed by them respectively. The chamber business of the Master of the Rolls and of Seo. xii. every Vice-Chancellor shall be carried on in conjunction vdth with their Court his Court business ; but as no rooms are attached to the Courts of the Vice-Chancellors in which such chamber busi- ness can be transacted, it shall be lawful for the Lord Chan- cellor to cause chambers 'to be provided for every of them respectively for that purpose until Courts with proper rooms attached can be provided for them. The Master of the Rolls and every of the Vice-Chancel- Seo. xiii. . ... Judges m Cham- lors respectively when sittmg in chambers shall have the beis to have same , . . , , . jurisdiction as if same power and jurisdiction in respect of the business to be sitting iu court. brought before them, as if they were respectively sitting in /^eac^e/iodi/n open Court. From and after the first day of Michaelmas Term one Seo.xxxvi. thousand eight hundred and fifty-two all or any of the of Mas°ters^mir' powers, authorities and jurisdiction given to the Masters in judges^™' ^ Ordinary of the said court by any act or acts then in force may be exercised by the Master of the Rolls and Vice- Chancellors respectively. From and after the first day of Michaelmas Term one Sec. xxxvii. 1 1.11111/./. 1 . Judges may exer- thousand eight hundred and fifty two the powers given to cise powers given the Masters in Ordinary of the said Court, and to the Court, 7°8andTand^' by sections seven, eight and nine of this act (a), may be ex- such°causet"&c. in ercised by the Master of the Rolls and Vice-Chancellors re- °*^° '"" ' spectively with respect to causes, matters and things which may be depending before them respectively in chambers ; and if and when any such judge shall be of opinion that any cause, matter, or thing so depending ought to be finally dis- posed of, unless the parties or some of them can show good cause to the contrary, he shall direct the same to stand in his paper in open Court, giving such notice thereof, if any, (o) For these sections, see fost. Class XVIII. H 2 100 [Class XVII. 15&16V.C.80. as he shall deem right, and proceed to dispose thereof ac- cordingly. 16 Oct. 1852. Powers and authorities given to the Masters in Ordinary Judges ml"exer- of ^he Court of Chancery by any general order or orders toKtosbf " "f tlie Court, may be exercised by the judge sitting in cham- general orders. bers 15&16V.C.80. Sec. XIV. Orders made at chambers, how to be drawn up. 16 Oct. 1852. Ord. XXVIII. How to be en- tered. 15&16V.C.80. Sec. XV. Efiect of orders. 16 Oct. 1852. Ord. VIII. Form of orders di- recting accounts, Sec. Orders. The orders made by the Master of the Rolls and Vice- Chancellors respectively when sitting in ch ambers s hall ordi- narily be drawn up there by their respective clerks to be appointed as Hereinafter mentioned (g), but with p ower to each of such judges to direct any of such orders to be drawn up by the registrar ot' the said Court m like manner as orders made oy a judge of the said Court in open Court are drawn up, for which purpose the registrars of the said Court shall, when require d, a ttend the Master of the Rolls and the Vice- diancellors respectively when sitting at chamb ers in such order and manner as shall be found most convenient for fur- thering the business of the said Court, and as the Lord Chancellor, with the concurrence of the Master of the Rolls and Vice-Chancellors, or any two of them, shall from time to time by any general order direct. All ord ers jn ade in chambers and drawn up by the chief clerks o r registrars are to be^ientere d in the same manner and in the same office as orders made in opeiTXl aMIt are entered. All orders of the Master of the Rolls or of any Vice-Chan- cellor ma de by him at chambers, shall have the force and effect of orders of the Court o fCiiancery, and such orders m ay be signed and enrolled i n like manner. In all cases in which by any order any accounts are di- rected^ to be taken, o r inquiries to be made, eacli~direction distinct shall be numbered, so that as far as may be each account and inquiry may be designated by a number, and such order may be in the form set forth in schedule (C) to these orders (6) with such variations as the circumstances of the case may require. (a) See ss. 16 to 25, ante, pp. 12 to 14. (6) See this schedule, ante, p. 90. /■ ''J Class XVII.l business at chambers. IQJ Business at Chambers, '"~-~ The business to be disposed of by the Master of the Rolls 15&16V.C.80, and Vice-Chancellors respectively, while sitting at chambers, See. xxvi. shall consist of such of the following matters as the judge aispSof in shall from time to time think may be more conveniently dis- ''^*™''™'- posed of in chambers than in open Court (a) ; videlicit, a pplications for time to plead, answer, or demur ; for leave to amend bills or claims ; for e nlarging publication ; and also applications for the pi'oduction of documents ; applications relating to the conduct of suits o rTnatters ; applications as to the guardianship an3' maintenance of i nfan ts ; matters con- nected with tne" management oi property; and such other matters as each such juage may irom time to time see fit, or as may from time to time be directed by any general order of the Lord Chancellor. The following applications are to be made at chambers : — lo Nov. 1852. 1. As to g uardianship of infants (c) (e xcept the appoint- ^?c'Sf„^s*tob?' ment of guardians ad litem.) " ?**?.?* °''*°'" 2. As to mainte nsmce (c) or advancement of infants. 3. For the ad ministration of estates under the act of 15 & 16 Vict. c. 86 (rf). ""■"" (a) And the Court itself may, in the first instance, if under special circumstances it shall think fit to do so, dispose of the applications mentioned in the 3 & 4 Will. 4, c. 94, that is to say, applications for time to plead, answer or demur, and for leave to amend bills (and, as to claims, see that title, post, Class XXIV.), and for enlarging publication and such other matters relating to the conduct of suits as shall be di- rected by general order, 13 & 14 Vict. c. 35, s. 26, ante, p. 11 ; and as to applications for leave to plead, answer or demur, see also 15 & 16 Vict, c. 86, s. 13, ante, p. 61 ; with respect to applications for the production of documents, see ib. ss. 18 and 20, ante, pp. 70 and 71. By Order 5 of 3rd June, 1850, the Masters were directed to give priority to applications under the 3 & 4 Will. 4, c. 94, and to any other applica- tions requiring immediate despatch. This rule will no doubt be followed by the judges in chambers. (6) This notice in which various alterations have been made from time to time is stuck up in the judges' chambers, (c) By Order 4 of 16th October, 1852, {infra, p. 105), it is provided that in cases of applications for guardianship and maintenance of infants originating in chambers, a duplicate of the summons is to be filed in the Record and Writ Office, and in cases where service is required, the copies served are to be stamped in the manner provided by sect. 46 of the Act of 15 & 16 Vict. c. 86, that is to say, with a stamp of such office indicat- ing the filing thereof; see post, p. 204. (d) For the practice relating to the administration of estates under this Act, see post, Class XXVI., sect. 4. 101a BUSINESS AT CHAMBER S. [CtASS XVII. 10 Nov, 1852. 4. For time to plead, answer or demur (a). 5. For leave to amend b ills or claims. 6. For e nlarging publication or the t ime for closing evi- dence (6). 7. For the production of documents (e). (a) In a case where time was given to " answer" merely, but the order thereupon was drawn up with the words " plead, answer or de- mur," the words " plead or demur" were struck out, and a plea was taken ofiF the file. Brooks v. Purton, 1 Y. & C. C. p. 278 ; Chambers v. Howell, 12 Bea. 563 ; but on the other hand, it has been held that under an order for time to answer simply, a plea may be filed. Hunter v. Nock- olds, 6 Hare, 12; 2 Ph. 540. (A) As to the time allowed for closing evidence, see 15 & 16 Vict. c. 86, s. 38, ante, pp. 82 and 83. («) And see ante, Class IX. The following forms of Orders to be made at chambers for the production of documents, and applicable to cases of plaintiffs as well as defendants, have .been settled by the judges ; the' first is for the production at the Record and Writ Office, in which case it will be remembered the documents are, by Order 57 of 16th October, 1852, (ante, p. 72), to be subject to such directions as may he given for the production thereof j the second form is for the production at the solicitor's of&ce : — Order for Production of Documents at the Record and Writ Office, under ISth and 2Qth Sections of the Act of 15 S; 16 Vict, cap, 86. Master of the Rolls, C , the day of , in the or, Vice-Chancellor, < year of the reign of her Majesty Queen at Chambers. ( Victoria, 185 . against Upon the application of , and hearing the solicitor for the , It is ordered, that the do, within , make and file a full and sufficient affidavit, stating, whether he has or has had in his possession or power any, and if any, what documents relating to the matters in question in this suit, and accounting for the same. And it is ordered, that the said do, within , produce and leave with the Clerk of Records and Writs in whose division this cause is, such of the said documents as by such affidavit shall appear to be in his possession or power, except such of the same (if any) as he may by his said affidavit object to produce. And it is ordered, that the said , his solicitors or agents, be at liberty to inspect and peruse the documents so produced and left, and to take cppies thereof and abstracts and extracts therefrom, as the shall be advised, at his expense. And it is ordered, that the said Clerk of Records and Writs do pro- duce the same before any Examiner of this Court, and at the hearing of this cause, as the shall require. And the said is to be at liberty to make such further application as to all or any of the documents mentioned in the said affidavit as he may be advised. Class XVII.] business at chambers. 1016 8. Relating to the conduct of suits or matters. 10 Nov. 1852. Order fer ProducHm of Documents at Solicitor's Cffice, under IWi and 20th Sections qfthe Jet of 15 S[ 16 Vict. caj>. 86. Master of the Rolls, C , the day of , in the or, Vice-chancellor, ^ year of the reign of her Majesty Queen at Chambers. (. Victoria, 185 . against Upon the application of , and hearing the solicitor for the It is ordered, that the do within make and file a full and sufficient affidavit, stating whether he has or has had in his possession or power any, and if any, what documents relating to the matters in ques- tion in this suit, and accounting for the same. And it is ordered, that the said do at all seasonable times, upon reasonable notice, produce at the office of , at , such of the said documents as by such affidavit shall appear to be in his possession or power, except such of the same, if any, as he may by his said affidavit object to produce. And it is ordered, that the said , his solicitor or agent, be at liberty to inspect and peruse the documents so produced, and to take copies thereof, and abstracts and extracts therefrom, as the shall be ad- vised, at his expense. And it is ordered, that the said • do produce the same before any Examiner of this Court, and at the hearing of this cause, as the said shall require. And the said is to be at liberty to make such further application as to all or any of the documents mentioned in the said affidavit as he may be advised. The following form of affidavit, to be made in compliance with the foregoing orders, has also been settled by the judges j it is not obligatory, but when made will be considered satisfactory : — Farm of Affidavit as to Production of Documents under Sections 18 and 20 qfthe Act of 15 8; 16 Vict. cap. 86. In Chancery. Between, &c. I, , of , make oath and say as follows : — 1. I say I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first Schedule* hereto annexed. 2. I further say, that I object to produce the said documents set forth in the second part of the said first Schedule hereto. 3. I further say, \^State upon what grounds the objection is made, and verify the facts so far as may he.'] 4. I further say, that I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit, set forth in the second Schedule hereto annexed. * The Schedule to be divided into two parts, when the deponent objects to the production of any of the documents. The first part is to contain the documents in the deponent's possession, to the production of which he does not object ; the second part is to contain the documents in the deponent's possession, if any, to the production of which he does object. 102 BUSINESS AT CHAMBERS. [ClASS XVII. 10 Nov. 1852. 1 15&16V.C.80. Sec. XXVII. Adjournment firom Court to chambers, and vice versd. Sec. XXVIII. Proceeding by summons. 9. As to matters connected with the management of property £q ). 10. For the payment into Court of purcha se monies u nder sales by' or der "oT tlie fcourt (6),~ and investing same. 11. For stop orders, where the assignor and assignee conc ur. """ It shall be lawful for the Master of the Rolls, and every of the Vice-Chancellors respectively, when sitting in open Court, to adjourn for consideration in chambers any matter which in the opinion of such judge may be more conveniently dis- posed of in chambers, or when sitting in chambers, to direct any matter to be heard in open Court which he may think ought to be so heard (c). Summons and Proceedings thereon. The mode of proceeding before the Master of the Rolls and Vfce-Chancellors respectively at chambers shall be by summons, a nd as near as may be according to the form now adopted by the judges of the superior Courts of common law when sitting at chambers. 5. I furtber say, that the last-mentioned documents were last in my possession or power on \_state wkeji]. 6. I further say, \_State what has became cfthe last-mentioned documents, and in whose pos- session they now are^, 7. I further say, according to the hest of my knowledge, remembrance, information, and belief, that I have not now, and never have had, in my own possession, custody, or power, or in the possession, custody or power of my solicitors or agents, or solicitor or agent, or in the possession, custody, or power of any other persons or person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract fi-om any such document, or any other document whatsoever, relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the said first and second Schedules hereto. Note, — If the party denies having any, he is to make an Affidavit inform (jf the 7th paragraph, omitting the exception. (a) A pplications f or the appoi ntment of Recei vers by consent should be made at cnamoers, Blackborough v. jiavenhiU, 16 Jur^lUSi." (6) And see Davenport v. Davenport, 9 Hare, App. 1 ; Grote v. Bing, 20 Law T. 124. (c) The Court will, in a proper case, adjourn the proceedings from Court to chambers for a specific purpose, and if any substantial difficulty arises, the judge will adjourn it from chambers into Court to be formally argued, see Saunders «. Walter, 9 Hare, App. v. ; 16 Jur. 1008 : 22 Law J. 11. Class XVIT.] summons and proceedings theeeon. 103 The summons for the purpose of proceedings before the 160ct.l852(o). Master of the Rolls and Vice- Chancellors respectively at ord. i. chambers, whether originating in chambers or not, may be in by^udgr""'" a form similar to the form set forth in schedule (A.) to these orders, with such variations as the circumstances of the case may require. SCHEDULE (A). Form of Summons. In Chancery. In the matter of John Thomas, an Infant, or Joseph Wilson against William Jackson. Let all parties concerned attend at my chambers [in the Rolls Yard, Chancery Lane, Middlesex], for, .at No. — , Square, Lincoln's Inn, Middlesex], on , the day of , at of the clock in the noon, on the hearing of an application on the part of [liere state on whose behalf the application is made, and the pre- cise object of the application]. Dated this day of , 1852. John Romilly, Master of the Rolls, or, George James Turner, Vice-Chancellor, or, Richard T. Kinderslet, Vice-Chancellor, or, John Stuart, Vice-Chancellor. This summons was taken out by A. and B., of Lincoln's Inn, in the county of Middlesex, solicitors for To ThefollowinsNoteto be added to the original summons where p roceeaings originate in chambers ; and when the 'time is altered by endorsement, the endorsement to be referred to as below. Note. — If you do not attend, either in person or by your solicitor, at the time and place above mentioned [or, at the place above men- tioned, at the time mentioned, in the endorsement hereon], such order will be made, and proceedings taken, as the judge may think just and expedient. N.B. — The Form of Summons to be obtained under section 45 of the Act 15 4-16 Vict. c. 86, is prescribed by Rule XLII. of the Orders of 7 August, 1852. (a) These orders take effect and come into operation from and after the first day of Michaelmas Term, 1852. Order 60. And by Order 61, 10* SUMMONS AND PROCEEDINGS THEREON. [ClASS XVII. 16 Oct. 1852. The summons to be issued under section 30 (a) of the act ord. II. of 15 & 16 Vict. c. 80, may be in a form similar to the form Form of summons . , , - i i • • by chief clerk. set forth in schedule (B.) to these orders, with such variations as the circumstances of the case may require (6). SCHEDULE (B). Form of Summons by Chief Clerk. In Chancery. In the matter of the estate of John Thomas, late of ' the county of , deceased, or . . — Joseph Wilson _ William Jackson. The defendant, William Jackson [or, A: B. of, &c.] is hereby sum- moned to attend at the chambers of the Master of the Rolls [or, Vice- Chancellor ], in the Rolls Yard, Chancery Lane, [or, No. — , Square, Lincoln's Inn, Middlesex], on , the day of , at of the clock in the noon, to be examined [or, to be examined as a witness on the part of the ], for the purpose of the proceedings directed by the Master of the Rolls [or, the said Vice- Chancellor] to be taken before me. Dated this day of , 1852. A. B. Chief Clerk. This summons was taken out by A. and B. of Lincoln's Inn, in the county of Middlesex, solicitors for . Pre arin 'and ^ ®^^^ '^ fortliwith to be provided for the chambers of the sealing summons. Master of the RoUs and each of the Vice-Chancellors, and summonses are to be prepared by the parties, and sealed by one oi' tne clerks at the chamber s of tl&ejuage from whose the following words have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there be some- thing in the subject or context repugnant to such construction ; viz: — 1. Words importing the singular number include the plural number, and words importing the plural number include the singular number. 2. Words importing the masculine gender include females. 3. The word " party" includes a body politic or corporate. 4. The word " affidavit," includes affirmation. 5. The word " order," includes decree and decretal order. 6. The word "receiver," includes consignee and manager. (a) See infra, p. 109. (h) Qnmre, whether the same note should not be added to this summons as to the summons for the purpose of proceedings before the judge, supra, p. 103. Class XVII.] summons and proceedings thereon. 105 chambers they are issued, and a copy of such summons is to 16 Oct. 1852. be left at the judge's ch ambers Iby the party obtaining such summons. In cases of applications under 15 & 1 6 Vict. c. 86, s. 45 (a), Ora. iv. applications for g uardians hip and m aintenance of infants, ^""^ *"*''"=»'*• originating in cham^bersT ^and of all other applications or i- gi nating in ^ambers, a d u p licate of the summons is to be fi led in theRec^JTana WrifOBic eTand in caieslvEere service is required, lli n U UplHiS iiferved a re to be stamped i n\he manner ~"" provided by sect. 46 (a) of the act of 15 & 16 Vict. c. 86. In cases where proceedings originate in cha mbers, the oriei- O"^*- ''^• , . - , II u -■■" _^'"'" for service. nal summons is to be served seven clear days before the return tFereoS"^ All other summoaa gs, not being summonses re- ferred to in Order II., are to be served two cl ear days before the return thereof. In cases where proceedings originate in chambers, and Ord. vi(6). , . 1 " . ' ■ ■• '-' Extension of time where irom any cause the summons may not have been served for service. upon any party seven clear days before the return thereof, an e ndorsement may be made upon the summons, and upon a cop y thereof st amped for ser vice, ap pointingf a new time. for the parties not before s erved To attend at the chambers of t'lie"'jTlfl^'e [c), and suclh e ndorsements are to be sealed a t the judge's chambers, and the service of the copy so endorsed and sealed, is to have the s ame tbrce and ettect a s the service of an o riginal summon s ; and where any party has been served be fore such endorseme nt, the hearing thereof ma y, upon the ret urn of the sum mons, be ad journed to the new time s o appointed. Appearances. In all cases where proceedings originatein chamber s, the , Ord.vii. ^^•■■ii""* ^ '^ ° ,, n rin«iir.r-..«r j^ ^^^^ onginat- parties served are, before they are heard in chambe rs, to ing at chambers. enter appearances in the Record and Writ Office, and give notice thereof. (a) See post, Class XXVI., sect. 4. (A) The power of the Court and of the judges at chambers to enlarge or abridge the time for doing any act or taking any proceeding, and to give any special direction as to the course of proceeding in any cause or matter, is unaffected by the general orders of this date. See Order 59, post, Class XXIX. (c) The note to the summons must also be altered. See the form, supra, p. 103. 106 PROCEEDINGS IN CHAMBERS, ETC. [CtASsXVII. 16 Oct. 1852. Ord. XVI. Further attend- ance without summons. Ord. XVII. Leaving copy order. Ord. XVIII. Proceedings on return of sum- mons. Proceedings in Chambers, and Orders and Directions applicable to all Cases, whether originating in Chambers or not. In all cases where matters, in respect of which summonses have been issued, are not disposed of upon the return of the summons, the parties are to attend from ti me to time without further summons, at such time or times as may be appomted for the consideration or further consideration of the matter. In all cases of proceedings in chambers under any order (o), the solicitor prosecuting the same shall le ave a~opy O t such orderat the jud ge's chamber s, and shall c ertify the s a m e to beatruecogj^f the order as passed and entered (6). Upon a copy of the order being left, a summons is to be issued to proceed with the accounts or inquiries directed, and upon the return of such summons, the ju dge is to be satisfied by proper evidence that all necessary parties have been s erved with noti ce of the order (c) ; anci thereupon directio ns are to be given as the manner in which eacti oF the accounts and inquiries is to be prosecuted, the evidence to be adduced in~ support thereof, the°parRes°who are^t^TattencTon the several accounts and inquiries, and tde time within which each pro- ceeding is to be taken (d) ; and a day or days may be ap- (u) Or " decree." See Order 61, supra, p. 103, note (a). (6) By the practice in the Master's office, if t he order is not brought in w ithin t en days, from its being passed and entered, any other party may bring in t he same, and is to h aV^ t he carnage of th?*prtit^iedlflt;s;"~' tnflEgriHe 'S Tisteraiall otheifwiiie' ait' giT.°~SS'fe"13rder 1 oTSrSnuhe, i8swr?ss?rcKjr5tvre — (c) In th^cases to which the Rules 1 to 7 of s. 42, of the 15 & 16 Vict c. 86, extend, the persons who, according to the then practice of the Court, would be necessary parties to the suit, are to be served with notice of the decree, and after such notice they will be bound by the proceedings in the same manner as if they had been made parties to the suit, and they may by an order of course have liberty to attend the proceedings under the decree. They may also, within one month (lunar), after service of notice of the decree, apply to the Court to add to the de- cree. Rule 8 of the same section, and Order 40 of 7th August, 1852, ante, p. 42. The service of the notice must be duly proved by affidavit, and a memorandum of the service entered in the office of the Clerks of Records and Writs. Order 41 of 7th August, 1852, ante, p. 42. ■ (d) The directions to be given by the judge correspond to some ex- tent with the directions heretofore given by the Masters under the 51st and 52nd Orders of 3rd April, 1828. For some of the leading principles which regulated the decisions of the Masters as to the rights of parties to attend before them, see Smith's Handbook, 386. It has been decided that the solicitors of trustees, as representing all t he cestui que trusts ClASsXVII.] PROCEEDINGS IN CHAMBERS, ETC. 107 pointed for the further attendanc e of the parties, and all such 16 Oct. 1852. directions may atte rwards be vari ed or added to as may be found necessary. * J^i^upon t he hearing o f the summons, it shall appear to the ord. xix. judge th at by reason of absence, or for any other sufficient dfs"eme°d ^th'or cause, the s ervice of notice of the order upon any party ™**'""'^*- cannot be made, or ought to be dispensed with , Tiie ' jITclge" may, it Tie stiall think Tit;"wh"oIly dispense with such service, or may, at his discretion, order any substituted service (a), or notic e by advertisement 'or otherwise, in lieu of such ser- vice. If, i n the prosecution of the order, it shall appear to the Ord. xx. judge that it would be expedient t hat further acco unts should or inquWes. be taken or fu rther inquiries made, he may order t he sam e to be taken or made accordingly, or if desS^etTlbyany party may direct the same to be consi dered in open Coyr |. At the time any summons or appointment is obtained, an Ord. xxi. entry thereof is to be made in a book, called " The Summons mons in took. and Appointment Book," stating the date on which the sum- mons is issued or appointment made, the name of the cause or matter, and by what party, and shortly, for what purpose w ere entitled to attend the Master on an inquiry as to proprie ty of .io r. vest ing aTund on mortgage, alth ough some of the cestui que trusts were rejli-esihted' by their solicitors, Davis v. Lord Comhermere, 14 Sim. 402. In a case in which there were B naiiy inc 'TtteantiRrjiii whose i nterests. tidal, the Master was held justiKed in in respect of the suit were identical, the Master was held justm allowing only one of them to attend the proceedings in his office, Hales V. Darell.'L'alveft on Parties, ' 3i}?~(2nd ■eTJ^TTirMasters were jiot bound to give the conduct of a sale to th e plaintiff, a lthough he was not in default, Dixon 'v. Pyner, '/ Hare, 33l1Tma *Trts said that only the party conducting the sale is allowed to attend b efore the Master on the reference. of title . Chillingwdrth v. Cfiillingworth, 2 Smith's Pr. 200 (2nd ed.) For the rules as to the attendance of parties before the Master in charity cases, see Attorney-General v. Gibson, 1 Mylne & C. 398 ; At- torney-General V. The Ironmongers' Company, ib., n. (a) ; Attorney- General D. Shore, ib. 394 ; Re The Shrewsbury Grammar School, 1 Mac. & G. 324. Under a decree vro confesso ior wa nt of an answer, the de- fendant cannot attend t he Master w ithout le ave ol tne'"C gaiTr-Heyn v. Heyn, Jac. 49, although he mus t l>e~serve3"wit'h warrants to attend , King V. Bryant, 3 IWyillff * Cf. JSIK An e xcluded party co m plaining of the Master's decision should not wait fo r the report, but shoul d appis to the Court forthwith to review s uch gecision, Davis v. Lord Comber- mere, su^ha ; and see Morison v. Morison, 17 Law J. 6.5. On the subject of evidence, a party consenting to an affidavit in lieu of an examination is not precluded from afterwards insisting on an ex- amination if the affidavit is unsatisfactory, Attorney-General v. The Corporation of Chester, 11 Bea. 169. (a) For a collection of cases on the subject of substituted service, see note (a), ante, p. 5i, 108 PROCEEDINGS IN CHAMBERS, ETC. [CtASS XVII. 16 Oct. 1852. Ord. XXII. Daily lists of mat- ters appointed. Old. XXIII. Course of proceed- ing in chambers. Old. XXIV. Notice of using affidavits. Ord. XXV. Evidence before examiner to be subject to special directions. 15&16V.C.80. Sec. XXIX. Judges to order what matters shall be investi- gated by their chief clerks and themselves re- spectively. such summons or appointment is obtained, and at what time returnable. Lists of matters appointed for each day are to be made out and affixed outside the doors of the chambers of the respec- tive judges, and, subject to any special direction, such matters are to be heard in the order in which they appear in such list. The course of proceeding in chambers is ordinarily to be the same a s the course of proceeding in Court upon motions. No states of facts, charges, or discharges are to be "brought in. But when directed, copies, ab stract s, or extrac ts of or from accounts, deeds, or other documents, and pedigrees and concise statements, are to be supplied for the use of the ju(}ge and his chief clerk, anST^here so directed, copies are to be handed over t o the other partie s. But no copies to be made of deeds or documents where the originals can be brought in, without special d irection . The party intending to use any affidavit on any proceeding in chambers is to give notice to the other parties concerned of his intention in that behalf. The practice of the Court with respect to evidence before the hearing, when applied to evidence to be taken before an examiner in any cause subsequently to the hearing, is to be subject to any special directions which may be given in any particular case. From and after the first day of Michaelmas Term one thousand eight hundred and fifty-two, the Master of the Rolls and the Vice-Chancellors respectively shall have the sole power (subject to any rules which may be made by the Lord Chancellor with the advice and assistance of them or any two of them) to order what matters and things shall be investigated by and before their respective chief clerks, either with or without their direction, during their progress, and what matters and things shall be heard and investigated by themselves ; and p articular ly, if the judge shall so direct, his ch ief cler ks respectively shall take accounts^ "and make suc h inauiries ^^ as have u sually been p rosecuted before the chief clerks of the pre sent masters (a) ; and the judge shall (a) In an affidavit filed the 11th December, 1815, in support of a petition against the appointment of a junior or copying clerk in the Master's office to the place of chief clerk, and made by three Masters' Class XVII.] proceedings in chambers, etc. 109 give such aid and directions in every or any such account or 15&16V.C.80. inquiry as he may think proper, but subje c t j n evertheless to the right herein-after provided for the suito r to bring any particular point before the judge liimself (a). ""^ Each chief clerk shall, for the purpose of any proceedings seo. xxx. directed by the Master of the Rolls or any Vice-Chancellor clerks. to be taken before him have full power to issue advertise? ments, to s ummon partie s and witnesses ( 6), to administe r oaths, to take a ffidavits and ackn owledgme nts, other than acknowledgments by married women, to receive affir m ations, and, when so direct ed by the j udge to whose clourt ne is attached, to examine p arties and witnesses, either upon inter- rogatories or viv4 voce, as such judge shall direct (c). Where a chief clerk is directed by the judge to examine 16 0ot.l852. any witness, the practice and mode of proceeding is to be practice Ord. XXVI. on exa- the same as in the case of the examination of witnesse s before ™°ge*'™ "iS*" the examiner (d) subje ct to a n y special directi ons which may <=ierks. be given in any particular case. The original examinations and de positio ns of parties and Ord. xxvii. ' I ■ L ii M , , . ^ ' s ' ""; ^ , I . , Depositions to be Witnesses taken by or before the chiet clerk, authenticated filed. clerks and seven solicitors, the duties performed by the Masters' chief clerks are thus defined : Drawing and settling recognizances of receivers, consignees, and guar- dians and other sureties ; taking the accounts of receivers and con- signees, and of executors, trustees and other accounting parties ; taking partnership accounts ; taking the accounts of mortgagees, and ascertain- ing the amounts due on their securities ; computing and ascertaining the amounts due to annuitants, legatees and creditors ; making appor- tionments of funds and costs, and generally making all computations and calculations ; comparing abstracts of title with the original documents, and ascertaining the accuracy of recitals in deeds to be settled by the Master ; settling particulars and conditions of sale ; conducting sales in town and the country ; drawing and settling all reports and certificates of every description ; drawing up orders on special applications; and (pre- viously to this duty being teansferred to other persons) the expunging of scandal and impertinence. Report of Committee of' the House of' Commons on Fees, 9th July, 1847, p. 106, and see the case of the Masters' clerks, 1 Ph. 650. (a) See s. 33, infra. (6) See the form of summons, supra, p. 104. (c) By the IS & 16 Vict. c. 86, s. 41 (ante, p. 85), evidence sub- sequently to the hearing is to be taken as nearly as may be in the manner provided in that Act, with reference to the taking of evidence with a view to such hearing; and by Order 38 of 7th August, 1852 (ante, p. 85), all the previous orders of that date, with reference to the examination, cross-examination and re-examination of witnesses (for which see ante, pp. 83, 84, and note (n), and p. 85), are to extend and be applicable to evidence taken in any cause subsequently to the hearing thereof. (d) For the practice as to the examination of witnesses before the examiner, see ante, p. 78 et seq., and notes. 110 PROCEEDINGS IN CHAMBERS, ETC. [CtASS XVII. 16 Oct. 1852. by his s ignatur e, are to be transmitted by hjm to the Record and WritjOffice, to be there filed, and any party to the su it or proceeding may have acopjr_thereof, or of any part or portion thereof, upon payment of the proper fee. ord. XLiii. In cases where the Court directs any computation of In- In certain cases n /« t^'^^T^ I * t_ " certificate o£ chief terest, or the apportionment of any lund , which is to be be acted on. *^ acted upon by the Accountant-General or other person, with- out any further order from the Court, the order to be made by the Court may direct such computation or apportionment to b e made by on e of the chief clerks attached to the Court of such judge, and may direct the certificate t hereof, signed by sucli chief clerk, to be acted upon accordingly, without the same being signed and adopted by the judge (a). Ord. Lit. Certificates of the chief clerk madle as mentioned in rule Rnfih cBrtificsifis tobe fiiedeif^ XLIII., and not required to be signed and adopted by the •^^•O^tflT/fjudge, are to be transmitted and filed in the same manner as ^^^'^ • those signed and adopted by the judge (6), 15&I6V.C.80. Parties and witnesses so summoned (c) shall be bound to Liatrntiesofpar- attend in pursuance of any such summons, and s hall be liable not attending ^'" '° proc ess of con t emp t, in like manner as parties or wit- by chief SeX^ nesses(rf) are now liSle thereto in case of disobedience to C«7>s*»i^e=s; any order of the said Court, or in case of default in attend- A^**^ I ance in pursuance of any order of the said Court, or of any writ of subpoena ad testificandum ; and all persons swearing or affirming before any such chief clerk shall be liable to all su ch penaltie s, punishments and consequences for any wilful and corrupt false swearing or affirming contained therein as if the matters sworn or affirmed had been sworn or affirmed before any person now by law authorized to administer oaths, to take affidavits, and to receive affirmations. (a) In such_cg|;ti£fiale$ the a mounts of monie s should he stated, and in words at length , e xcep t in ca'ses ot resiaue" remaining after certain deductions, tne amount oi which cannot De ascertained at the time, and i n such cases the amounts are to he as certained by affi davit. The persons, bodies corporate, companies or societies, should also De descriBeS by names or titles at full length, and not merely as plaintifis or petitioners ; b'ut this rule d oes n ot app ^v to re presentatives where no probate or letters ot administration kave been taKen out. OrSer "28 oi iJIst l)e- cember, 1833. (A) That is to say, to be transmitted by the chief clerk with the ac- counts, if any, to be filed therewith, to the Report Office, to be there filed. See Order 50 of 16th October, 1852, iw/ro. (c) That is to say, by the chief clerk. See s. 30, supra, p. 109. (d) See note (6), anle, p. 79. Class XVII.] certificates and reports. Ijl Certificates and Reports. The directions to be given by the Master of the Rolls or 15&I6V.C.8O. any Vice-Chancellor for or touching any proceedings before seo.xxxii. his chief clerk shall require no particular form, but the result Se 'S report' of such proceedings shall be stated in the shape of a short toji^s^- c ertificate to the iudp( a\ and shall not be embodiecTin a formal report, unless in any case the judge shall see fit so to direct ; and w hen th e j udge shall approve of such certificate or report he shall sign the same in testimony of his adopting the same. Where an accoun t has been directed, the c ertificate o r re- 16 Oct. 1852. port is to s tate the result of such accoun t, and not to set the con°tem?o"iI' same out by way of schedule (6), but is to refer to the ac- "^ases of account. count v e rified by the affi davit filed (c,, and to specify by the^ number^ attached to the items m the account which, if any, of s uch item s have been d isallowed or varied, and fo state w hat addition s, if any, have been made by way of surcharge (rf). In an y case m which the ac count verified by the affidavit has been s o altered t hat it is necessary to have a fair transcript of the account so altered, su ch transcrip t may be required to be made by the sol icitor prosecutin g the order, and is then to be re ferred t o by the c ertificat e or report. The accounts and the tr anscrip ts, if any, referred to by certificates or re- ports are to be filed therewith , but no copies thereof are to be required to be taken by any party. The ce rtificates or repor ts to be made by the chief clerk ord. XL v. to the judge are not, except the special circumstances of the but to refer to'or- case shall render it necessary, to set out the order, or any ^^' *°' documents, or evidence, or reasons, but are to refer to the o rder, docu ments, and evi dence, or par ticular paragr aphs thereof, so that it may appear upon what the result stated in any such certificate or report is founded (e). (o) For cases in which the chief clerk may make a certificate without the eignature or adoption of the judge, see Order 43 of 16th October, 1852, iujrra. (6) For the accounts which may be set out by way of schedule, see the form of certificate, paragraphs 1, 2, 4, 5, 6, 7 and 8, infra, p. 1 13. (c) See Order 29, infra, (d) See Order 30, infra. (e) And should strictly follow the order of reference, Armstrong v. Storer, 9 Bea. 277. 1^^ CEETinCATES AND REPORTS. [CtASS XVII. 16 Oct. 1852. The ce rtificate of the chie f clerk to the judge may be in ord. XLvi. a form similar to the form set forth in schedule (E) to these Fomi, and how to , •,! i • ,- i • . X , be prepared. orders. With such variations as the circumstance of the case may require, and w hen prepared and settled it is to be trans- cribed by the so licitor prosecuting the proceedings, in such fbrnTanSrwithm such time as the chief clerk shall require, and is then to be signed by the ch i ef clerk at an adjournment to be made for that purpose. But where , from thenatiire of the case, the certificate can be dra wn and copied in chambers whilst the parties ar e present beibre the chief clerk, the same sli air be" then coinple ted'and signed by him without any ad- journment. " — SCHEDULE (E). Form of Certificate of^ Chief Clerk. In the matter of , [or, Between .] [State title."] In pursuance of the directions given to me by the Master of the Rolls [or, the Vice-Chancellor ], I hereby certify, that the result of the accounts and inquiries ivhich have been taken and made, in pur- suance of the order in this cause, dated the day of , is as follows : — 1. The defendants , the executors of , the testator, have received personal estate to the amount of £ , and they have paid, or are entitled to be allowed on account thereof, sums to the amount of £ , leaving a balance due from [or, to] them of £ , on that account. The particulars of the above receipts and payments appear in the account marked , verified by the affidavit of (o), filed on the day of , and which account is to be filed with the cer- tificate (i), except that in addition to the sums appearing on such sceount to have been received, the said defendants are charged with the^following sums [state the same here, or in a scheduW], and except that I have disallowed the items of disbursement in the said account numbered and (c). [Or in cases where a transcript has been made.'] The defendants , have brought in an account verified by the affidavit of , filed on the day of , and which account is marked , and is to be filed with this certificate. The account has been altered, and the account marked , and which is also to be (o) See Orders 29 (infra), and 44 (supra, p. Ill), of 16th October, 1852. (6) See Orders 44 (supra, p. Ill), and 50 linjra), of 16tli October, 1852. (c) SeeOrders30(in/ro),and44(suyro,p. Ill), of 16th October, 1852. Class XVII.] certificates and reports. 113 filed with this certificate, is a transcript of the account as altered and 16 Oct. 1852. passed (o). 2. The debts of the testator which have been allowed are set forth in the schedule hereto, and with the interest thereon and costs mentioned in the schedule, are due to the persons therein named, and amount altogether to £ . 3. The funeral expenses of the testator amount to the sum of ■£ ) which I have allowed the said executors in the said account of personal estate. 4. The legacies given by the testator are set forth in the sche- dule hereto, and with the interest therein mentioned remain due to the persons therein named, and amount altogether to £ . 5. The outstanding personal estate of the testator consists of the particulars set forth in the schedule hereto. 6. The real estate to which the testator was entitled consists of the particulars set forth in the schedule hereto. 7. The incumbrances affecting the said testator's real estate are specified in the schedule hereto. 8. The defendants have received rents and profits of the testator's real estate, &c. [m a form similar to that provided with respect to the personal estate']. 9. The real estates of the testator directed to be sold have been sold, and the purchase money, amounting altogether to £ , have been paid into court. N.B. — The above numbers are to correspond with the numbers in the decree. After each statement the evidence produced is to be stated as follows : — The evidence produced on this account \or inquiry] consists of the probate of the testator's will, the affidavit of A. B. filed — — , and paragraph No. of the affidavit of C. D. filed (6). No exceptions shall lie to any ce rtificate or report o f the 15&16V.C.80, chief cleTk, although signed and adopted by the judge ; but No"«?p^i"to any party sh all, either during the proceedings before such port^bufopinSn chief clerk, or wi thin such time after such proceedings shall rfjudge may be have been concluded, and before the certificate or report shall have been signed and adopted, as the Lord Chancellor shall by any general order direct, be at liberty to take the opinion of the judge upon any part icular point or matter arising in the cours e of the proceeding s, or upon the resu lt of the whole proceeding when it is brought by the chief clerk to a con- cIusio n._ (a) See Order 44, jupra, p. 111. (A) See Order 45, supra, p. 111. I 114 16 Oct 1852. Ord. XLVII. Time for taking opinion of judge. Ord. XLVIII. Summons for tliat purpose. Ord. XlIX, Signatlure by judge. Ord. 15&16 Sec. XXXIV. Certificate, &c. signed by judge, to be binding, un- less discharged upon application. CERTIFICATES AND REPORTS. [ClASS XVII. The time within which any party is to be at liberty to take the opinion of the judge upon any proceeding which shall have been concluded, but as to which the certificate or report of a chief clerk shall not have been signed and adop ted by the iudpe^ is to be foiir clear days after the certincate or report shall have been si gned by the chief clerk ( a). Any party desiring to take the opinion of the judge, as mentioned m the last preceding rule, is, within four clear day s a fter t he c ertificate or report shall have been s igned by the chief clerk, to obtain a s ummon s for such purpose (a). At the expiration 'of four cle ar days after the certificate or report shall have been signed by the chief clerk, if no party has in the meantime obtained a summon s to take the opinion of the judge thereon, the chief clerk is to submit the certifi- cate or report to the judge for his appro valTanJ the judge may thereupon, if h e approve the same , sign such certificate or report in testimony of his adoption thereof as follows ; — " Approved, this day of («)•" The certificate or report, when signed by the judg e, with the accounts7ifany, tobe'filed therewith, is to be transmitted V, by the chief clerk to the Report Of fice, to be there filed . ■^c.SO. When any certificate or report of the chief clerk shall have been signed and adopted by the judge, the same shall be filed in like manner as reports are now filed (6), and shall thence- forth be binding on all the parties to the proceedings, unless discharged or varied, either at chambers or in open Court, according to the nature of the case, upon application by sum- mons or motion within such time as shall be prescribed in that behalf by any general order of the Lord Chancellor ; and n othing her ein contained s hall prejudice or affect the power of t he Court at any time to open any s uch certifica te or report upon the same or the like grounds as any report of a Master ^^iy (a) These orders are not applicable to c ertificates on passing receivers' accounts, which may be approved ana sigriea'B'y tne judge without delay, ana one to be filed and forthwith acted upon. Order 53, infra, p. 119. (6) By Order 30 of 21st December, 1833, all reports were directed to be left with the clerk of reports, to be by him filed or preserved under the direction of the Master of the Reports and Entries, but the office of clerk of reports is now abolished by the 15 & 16 Vict. c. 87, s. 27, and the certificates or reports of the judge or his chief clerk, with the ac- counts, if any, to be filed therewith, are to be transmitted by the chief clerk to the Report Office, to be there filed. Orders 50 (supra) and 52 (ante, p. 110) of 16th October, 1852. Class XVn.] certificates and reports. 115 of the said Court which has been absolutely confirmed may 15&16V.C.80. now be opelied (a). The time within which an application may be made by 16 Oct. 1852. s ummons o r motion to discharge or vary any certificate or Timeft^' ^plica- report which has been signed and ad optea oy the ju'cig e sit- *"'°' /^t ting in chambers, is to be eight clear da ys after the filing of ^ "^^f^ such certificate or report (6). ^ From and after the first day of Michaelmas term one thou- 15&16V.C.80. sand eighty hundred and fifty-two all or any of the powers, statatory powers authorities, and jurisdiction given to the Masters in Ordinary beraercSiOy of the said Court by any Act or Acts then in force may be J"*ees. exercised by the Master of the Rolls and Vice-Chancellors respectively. Creditors and other Claimants (c). Where an order is made directing an account of debts, 16 Oct. 1852. claims, or liabilities, or an inquiry for next of kin or other Time for claim- unascertained persons, unless otherwise ordered (rf), all per- to'come'ta'. "*"^ sons who do not come in and prove their claims within the ti me which m ay be fixed for that purpose by advertisement, are to be excluded fr om the benefit of the order"(e57" ™" (a) For the cases in which a Master has been ordered to review his report after confirmation, see an elaborate note to Turner v. Turner, 1 Swans, p. 156, and the cases there cited, and the subsequent cases of Turner v. Turner, 1 Jac. & W. 39 ; Drought v. Redford, 1 Moll. 572 ; and Armstrongs. Storer, 9 Bea. 277; and in questions of title if, after con- firmation of the report, a new fact appear, the report will be opened, Jeudwine v. Alcock, 1 Mad. 597 ; but a report confirmed and followed by an order or further directions, will not be opened as long as that order stands. Turner v. Turner, 1 Swans. 154. (6) This order is not applicable t o c ertificates on passing receivers' accounts. wBlWl IhayD'* ' aJjjil'drSff and signea by the judge without " dfl'iy, and are to be filed and forthwith acted upon. Order 53, infra, p. 119. (c) As to advertisements, see infra, p. 120. (d) See Order 41, infra, p. 117. (e) Previously to these orders, no objection could be made to the re- ception of a claim in the Master's office, provided the same was left before the warrant on preparing the report was issued, although the terms of the decree and of the advertisement were to exclude those claimants who delayed bringing in their charges within the time limited. tiff Te specified by th' s -a a- WB a ' te gmeOTTor , m case ofan aajon mment unaer Order 35. f our dlSatniBVa betore the adjournment aay~ otherwise the claims will n5t"5'" received, iihless~By spe cial leave a na upon terms. See OrTlCTS 36 anTi:l,inJrii, p.'l 1 1 ~~~ ' 116 CREDITORS AKD OTHER CLAIMANTS. [ClASS XVII. Ord. X. Interest on debts. Ord. XI. Interest on lega- raes. 16 Oct. 1852. Where an order is made directing an account of the debts of a deceased person, unless otherwise ordered, interest is to be compute^ on such debts as to such of them as carry m- terests after the rate they respectively carry^ and as to all others a fter the rate of four per cent, per annum, i 'rom tne date of the order (a). Where an order is made directing an account of legacies, unless otherwise ordered, interest is to be computed on such legacies after the rate of four per cent, per annum, from th e end of one year after th e d eceased's "death , unless any other time of payment or rate of interest is directed by the will, and in that case according to the will (i). Ad vertisements for c reditors or other claimants are to fix a time for the creditors or claimants to come in and"prove their claims, and to appoint a day for the hearing and adjudicating thereon, and may be in a torm similar to tlie form set f^tli in Schedule (D) to these orders, with such variations as the cir- cumstances of the case may require. Ord. XXXV. Form of adver- tisements. SCHEDULE (D). Form of Advertisement. Pursuant to a decree or order of the High Court of Chancery, made in a cause against the creditors of [or persons claiming debts, liabilities affecting the estate of, or the persons claiming to be next of kin to, or the heir of^ as the case may 6e], , late of , in the county of , who died in or about the month of , are by their solicitors, on or before the day of , to come in and prove their debts or claims at the chambers of the Master of the Rolls, in the Rolls Yard, Chancery Lane, [or, of the Vice-Chancellor , No. — , (o) And see the corresponding Order 46 of 26th August, 1841, under which it was held that the claim must be established in the same suit, Davis V. Combermere, 15 Sim. 394. It has also been decided that in- terest wi ll be allowed upon an amount found due for arrears o f jnterestT NTiIlcocks V. Butcher, TO Sim. 80C;''^"c regTSrlirlirMso'^ ailowed Ms coste pf e stablishing his debt. O rder 47 of ^lU AUgUyi, 1841, as amended tJy'Urcler'e of lltn April, 1842, the amount of which in ordinary cases was fixed at \l. 15». .. See memorandum of the Masters of 26th April, 1842, Toulmin's Statutes and Orders, 244, n. (i!i) This is the form of the direction which has usually been inserted in decrees directing an account of legacies. Class XVII.] creditors and other claimants. 117 square, Lincoln's Inn], Middlesex, or in default thereof they will 16 Oct. 1852. be peremptorily excluded from the benefit of the said decree [or order]. Monday, the day of , at o'clock in the noon, at the said chambers, is appointed for hearing and adju- dicating upon the claims. Dated this day of , 1852. A. B. Chief Clerk. C laiman ts coming in pursuant to advertisement are to enter Ord. xxxvi. t heir claims at the .c hambers of the judge in the " Summons be entered. ° and Appointment Book," for the day appointed for hearing by the advertisement (a) and are to give notice thereof and o f the affid avit filed t o the solicitors in the cause , vyithin the time specitied in the advertisement for bringing in claims. The claimants filing affidavits are not to be required to take Ord. xxxvii. , ' ^ . -I _ Office copies. oince copies ; out the party prosecutin g tne cause or matter is to take office copie s, and produce the same at the hearing, unless otherwise ordered in chambers. 11" on the day a ppointed for hearing the claims, there are Ord. xxxvill. ' I , ■ |. 1 « ' .'. — 1 /. 1 • Adjourned hear- an y not t hen disposed ot, an adjournment day for hearing ing and closing such claims is to be tixed ; and where turtne'r evidence is to *" ™°'' be adduced, a t ime may be named within 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. Any claimant who has not before en tered his claim may be ord. xxxix. 1 5 I.J- ..J -jji i i.'!' Claim before ad- heard on such adjournment-day, pro vided he ent ers his claim joumment day. and files his affidavit t our cle ar days prior to such day, and no certificate of debts or claims shall in the meantime have been made. Creditors claiming debts not exce eding 5 1. need not attend Ord. XL. HBMMMHn^ _ *^ ■ "^*— J^T^^*^^ *— —^^ II I Creditors under on the day of hearing, unless required to do so by notice from 5t. some party. A fter the ti me fixed b y the advertisement, n o cla ims are to Ord. xli. be received except as before provided in case of an adjourn- times fixed. ment, unless the judge at c hambers shall think fit to g ive spe- cial leave, upon application made by summon s, and then upon sucli terms and conditions as to costs and otherwise as the judge shall think fit. (o) But see Order 39, infra. 118 16 Oct. 1852. Ord. XLII. List of claims. SALES, ETC. [Class XVII. A list of all c laims allowed shall, w hen require d by the judge, be niade__out_3Bid_le& in the judge's chambers by the partm)rosecuting the order. Ord. XII. How sale to be made. Sales. Where an order is made directing any property to be sold, unless otherwise ordered, the same is to be sold, with the ap- probation of the judge to whose court the cause or matter is attached, to the best purchaser that can be got for the same, to be allowed by such judge, and all proper parties are to join therein as such judge shall direct (o). Ord. XIII. Security and salary or lUlow- ance. Ord. XIV. General orders to apply mutatia muiandis. Receivers (6). Where an order is made directing a receiver to be appointed, unless otherwise ordered, the person to be appointed is first to give securit y, to be allowed by the judge to whose court the cause is attached, and taken before an officer or agent of the Court in the country if there shall be occasion, duly to acc ount fo r what he shall receive on account of the rents and profits , for the receipt of which he is to be appointed, at such periods as such judge shall appoint, and to account for and pay the same as the court shall direct, or, as the case may be, to be answerable for what he shall reaeive in respect of the pe rsonal estate for the getting in and collection of which he is to be appointed, and to account for and pay the same as the Court shall direct ; anHTTe^eVsonsoTcTbe'appoinTei is to be allowed a proper salary f or his care and pains in receiv- ing s uch rejits and profi ts, or, as the case may be, to have an allowance made to him in respect of his collecting such per- sonal estate (c). The general orders of the Court with respect to receivers, shall, mutatis mutandis, apply to receivers appointed under (a) This is the form of direction which has usually been inserted in decrees for sale, the judge being now substituted for the Master. (6) Including consignees and managers. See Order 61, p. 104, note. (c) This is substantially the same direction as has usually been in- serted in decrees or orders appointing receivers. The judge is now sub- stituted for the Master, and the security, instead of being taken as heretofore by a Master extraordinary In the country, is to be taken before an officer or agent of the Court For this purpose the assistance of the judges and officers of the County Courts may now be made avail- able. See 9 & 10 Vict. c. 95, s. 22. Class XVII.] accounts, etc. 119 orders made after these rules and regulations come into oper- 16 Oct. 1852. ation. R ecognizances which have been heretofore given to the ord. xv. Master of the Rolls and the Senior Master in Ordinary are »*"8"'^^'"==^- hereafter to be given t o the Master of the Rolls a nd the Senior Vice -Chan cellor for the time heliiii.'" " Upon a rec eiver's accou nt be ing left i n the judge's chambers Ord. xxxi. to be passed, a su mmons to proce ed thereon is to be taken out; *°''°"°'- and the ac count when pas sed is to be entered b y the solicitor of the receiver in books in the same manner as tieretotbre ; but the a ffidavit verifying the account so passed is to refer to it as an exhibit , and not to be annexe d to it (a). When a r eceivership has been c ompleted, the book contain- Ord.xxxii. ing the accounts is to be deposited in the^ Record and Writ ^°°'^" Office (a). The Orders XLVII., XLVIII., XLIX., and LI. (6), are ord. Lin. not to apply to certificates on passing receivers' accounts, not t^ apply to Such certificates may be approved and signed by the judge """'"• without d elajf. and upon being so signed are to be tiled anii forthwith acted upon. '°""""" Accounts. Where any account is directed to be taken, the a ccountin g Oid.xxix. part^ is, unless the judge shall otherwise direct, to make out Ho™f Llountf" his account and verify th e same by affidavit . The items on each side of the account are to be numbered consecutively, and the account is to be re ferred to by the affidavit as an ex- hibit, and to beleft in the judge's chambers. ■■ Any part y seeking to charge any accounting party beyond ord. xxx. what he nas by nis account admitted to have received is to give notice thereof to the accounting party, stating , so far as he his able, the amount sough t to be charged, and the par- ticulars thereof, in a s hort and succinct manner. (a) Heretofore the practice has heen for the Meist«r's clerk to eater the receiver's account in a book called the Rec eiver's Book, which was kept in the Master's office, and a lso in a dupli cate Dool grwBich was the property of the receiver, and at the toot ot tne account m the book kept by the Master was appended the affidavit verifying the account. See Smith's Handbook, 492. (6) See these orders, supra, p. 114. They relate to the time allowed for taking the opinion of the judge upon the certificate or report of the chief clerk, and for the approval thereof by the judge, and also to the time allowed for any application to discharge or vary it. 120 COSTS, ETC. [Class XVII. Advertisements (a\ 16 0ct.l8S2. Where a dvertisem ents are required for any purpose, a per- emptory and only one is to be issued, unless for any special reason it may be tho ught necessa ry to issue a second advertise- ment or furt her ad v ertis etiignts ; and any advertisement may be repeated as many times and in such papers as may be di- rected. The advertisements are to be prepared b y the solic itor, and submitteif lu'Theti HIeT c lerk for approval, atid, when approved, are to be signed by him, and such signature to be sufficient authority to the pnnter of the Gazette to insert same. Ord. XXXIII. Only one adver- tieement. Ord. XXXIV. How prepared and signed, &c. Ord. LIV. Register to be kept. Register of Proceedings. A register is to be kept of all proceedings in the judge's chambers, with proper dates, so that all the proceedings in each cause or matter may appear consecutively and in chro- nological order, with a short statement of the questions or points decided or ruled at any hearing (6). Ord. LV. Parties attending ^tbout leave. Ord. LVI. Counsel. Costs. P arties attending any proceeding i n chambers , without having obtained the previous leave of the judge to attend the same, are not t o be allowed any costs of such attendance, unless b y speci al order of the court. The costs of co unsel attending the judge in chambers are not in any case to be allowed, unless th e jud ge certifies., it to be a proper case for counsel to attend (c). (a) And see head "Creditors and other Claimants," supra, p. 115. (6) See the previous practice in the Masters' offices. Order 49 of 3rd April, 1828. (c) This order is similar to Order 11 of 3rd June, 1850, relating to the attendance of counsel before the Master i and by Order 10 of that date the allowances on the taxation of costs in respect of fees to such counsel are to be regulated upon the same principle as if the proceedings were before the Court. See these Orders, post, p. 130. ( 121 ) CLASS XVIII. PROCEEDINGS IN THE MASTERS' OFFICES. [And see ante, Class II., Sect 2, "Masters in Ordinary;" and Class XVII., " Proceedings in the Judges' Chambers." The office of Master in Ordinary of the High Court of is & ig v. Chancery shall be and the same is hereby abolished, but re- c. 80 (a). serving and subject to the execution by the present Masters oacerf^MMter in Ordinary of the said Court, as such, of the duties here- oSoiisied, except . . certain duties, inafter provided tor ; and until they are released under this Act they shall for the performance of such duties continue to have all the powers conferred upon them by any Act of Parliament or otherwise vested in them (6). (a) For the title &c. of this Act see anti p. 12, note (d). (6) Certain duties are stiU to be performed by the Masters, and for the performance of them all the powers and authorities vested in them at the time of the passing of this Act (30th June, 1852), are reserved to them by this section and section 10, infra, p. 124. At the same time all the powers and authorities vested in the Masters may be exercised by the Master of the Rolls and Vice-Chancellors sitting in chambers. See s. 36 and Order 58 of 16th October, 1852, ante, pp. 99 and 100. The general duties of the Masters (and these duties will still have to be performed by the Masters under existing references, and also by the judges in causes and matters coming under their jurisdiction at chambers), are thus stated by the Chancery Commissioners, viz. : " One most important branch of these duties consists in taking the accounts of executors, trustees, mortgagees in possession, partners, agents and other accounting parties. "The Master ascertains what is due for the debts and legacies of any deceased person whose estate is to be administered, and determines on the claims of creditors and legatees. " Another branch of the Master's duties is to ascertain, when so re- quired by the Court, the heir-at-law of a deceased party, or the persons constituting a class such as we have referred to in a former part of our report. " It is the ofiSce of the Master, when directed by the Court to do so, to appoint receivers of real and personal estate, guardians of infants and new trustees, and it is his duty to take annually the accounts of such re- ceivers. " He also, either by his clerk or by an auctioneer, or other person ap- pointed by him for the purpose, sells estates directed by the Court to be sold ; he settles the particulars and conditions of sale, and for that 122 PROCEEDINGS IN THE Masters' OFFICES. [Class XVIII. 15&I6V.C.80. In order as expeditiously as may be to wind up all the Sec. VII. causes, matters, and things which may from time to time be Power for Masters ° /. i i »/r to summon par- depending before or have been referred to the Masters in causes, &c'. before Ordinary of the said Court, it shall be lawful for every Master at any time after the passing of this Act to summon as he shall deem fit all or any of the parties to any cause, matter, or 1 -T f < : ■ ■ — — — purpose considers the title to the estate and the necessary limitations and conditions which it may be advisable to impose on purchasers. " If any dispute arises as to the title, the form of the conveyance, or as to compensation for a real or supposed misstatement in the particulars, the dispute is settled by the Master under the direotioni,of the Court. " In cases where money, in which infants or married women are in- terested, has to be laid out under the orders of the Court in the purchase or mortgage of real estates, the Master has to inquire into the expediency of the investment, to approve of the title, and of the conveyance or mortgage. Again, on the marriage of an infant ward of the Court, it is generally referred to the Master to consider the propriety of the marriage, and to approve of the proposals for a settlement, and he reports his opinion to the Court, and afterwards settles the deed for carrying the proposals into effect. " In other matters relating to infants and the administration of their estates, the Court usually exercises its protective functions through the medium of the Master. He appoints the guardians, inquires into the amount of the infants' property, and determines the proper sum to be allowed for maintenance ov advancements. He approves of leases and other acts to be done in the management of the infants^ property. " The sanction of the court is often required to arrangements in which infants or other persons undl!r disability are interested, and it has been the habit of th? Court to make references to the Master as to the pro- priety of such arrangements. " If a fund has to be apportioned between different parties according to their respective interests, if legatees or creditors have to abate, an- nuities to be valued, or other calculations to be made, the matter is generally referred to the Master. " Another common subject of reference is to determine how much of a fund coming to a married woman should be paid to her husband or those claiming under him, and how much should be settled on herself and her children. " If interrogatories for the examination of witnesses are alleged to be leading, the question is referred to the Master; and special cases, directed by the Court, are often referred to the Master for settlement. " In suits for specific performance, where the purchaser alleges that the seller's title is defective, the title is referred to the Master. " In cases where it is necessary to settle the priorities of mortgages or other incumbrances on an estate, the Master settles and determines such priorities. " The Master also settles schemes for the administratisn of charity property. " These are the more common duties performed by the Master ; but it is the habit of the Court, in addition, to refer to the Master questions of fact, and questions involving law as well as fact, which it finds itself unable to decide in the first instance, or without further inquiry, as, for example, the law of a foreign country or the domicile of a party. " Special inquiries are also frequently sent to the Master with refer- ence to matters which are not sufficiently ascertained by the pleadings and evidence to enable the Court to adjudicate upon the rights of the Class XVIIL] proceedings in the masters' offices. 123 thing so depending, or their solicitors, and thereupon to pro- 15&16V.C.80. ceed with such cause, matter, or thing, and give such direc- tions and make su ch order a s he may think necessary for the purpose ot s ettling and winding up ttie same ; but any such order sh all be subject to be discharged or varied by the Court upon application ' made for tnat purpose ; and the Alaster shall be at liberty to proceed for the purposes aforesaid in the absence of any of the parties or solicitors neglecting or refusing to attend the summons. In ca se the Mastej- should be unable, b y reason of the con- Sec. viii. duct of parties, or otherwise, to finally dispose of any cause, ter"repor™tS'*'' matter, or thing, he shall be at liberty to dispos-e of any part " togpoe^°° thereof within his power, and t o report o r certify on the whole "^^•'"'*=''- of the case ; and upon such report or certificate the Court shall m ake such orcler as il shall UllBk proper on all or any of the parties, for the f urther prosecution of the suit or mat- ter, orjor the fi nal disposal thereof, and for the payment of the costs th ereof, including any of the costs which may have been incurred by reason of the conduct of the parties. In the event of the parties in any cause, matter, or thine, See. ix. •' ■ ' ,. !" • „-£?-—« — ~_,i«.— — ' ' . S' SoUcitor to or their solicitors, re fusing or neglec ting, within a time to be Suitors' Fund to fixed by the Master, t o bring the M aste r's report or certifi- i^ft before the cate before the Court, the same may, by direction of the of parties. ° *" Master, be brought before the Court by the solicitor for the time being to the Suitors' Fund ; and the Cour t is hereby em^ powered to order_pa yment of the costs and expenses of the solicitor to the Suitors' Fund out oF^uch of the funds in the parties ; and whenever questions arise between co-defendants upon mat- ters not in issue between them and the plaintiffs, the present practice of the Court requires that preliminary inquiries of this description should be made and the facts found by the Master, the course of the pleadings not admitting of issues being joined between co-defendants. "It thus happens that the most complicated and difficult questions often arise in the Master's office, which it becomes necessary to argue by counsel. " In all these cases the Masters act under an order of the Court, which order limits and defines the subject of the reference, and coupled with the established practice of the Court in such cases, indicates the course to be pursued. "For the purpose of enabling the Masters more eflfectually to pro- secute the reference made to them, they have the power of directing advertisements to be inserted in the public papers, of examining on in- terrogatories parties and claimants, of compelling the production of documents, and various other powers." {Report of llth January, 1852, p. 26.) 124 PROCEEDINGS IN THE MASTERS* OFFICES. [ClASS XVIII. 15&16V.C.80. cause, matter, or thing, or by such . parties, as to the Court shall seem just ; and in case payment thereof cannot be ob- tained by any of the means aforesaid, the same, by the direc- tion of the Court, may be paid out of the Suitors' Fund (a). Sec. X. From and after the first day of Michaelmas Term one Future duties of , , •; -- . , , . Masters. thousand eight tiundred and fifty- two no relerence snail be made to any of the Masters in Ordinary of the said Court(6), exc ept in case s in which, from so me previous referenc e made iii the cause or matter, or in s ome othercause or matter connected "thTrewith, the Co urt may think it expedie nt to make such reference, and except in matters arismg under the J oint Stock Comganies Winding-up Acts 1848 and 1 849 ^provided always, that until all tne Master s in Ordi- ISry'f the said Court shall have been r emoved by resigna- tion, death. or _, 9 , thprvi ; is e. or have been released from their duties under this Act, s uch of the Masters in Ordinary of the said Court as shall for the time being re main in oflfice , and shall not be released from their duties under this Act, shall prosecu te all the business which on the first day of Michaelmas Term one thousand eight hundred and fift;y-two shall be depending before the Masters, and also all the re- ferences which before the said first day o f Mich aelnTas Te rm one tliousand eight hundred and fifty-two shall have been made under decrees or orders of theX6urt(c), or which on or after the same first day of Michaelmas Term shall be made in relation to each excepted matters as aforesaid ; and the same, if necessary, shall be distnoiited amongst such remaining Masters in such manner as the Lord Chancellor shall direct ; and the powers and authorities now vested in them are hereby reserved to them for the purpose of executing and (o) The powers given to the Masters by this and the two preceding sections may be exercised by the judges in chambers or in Court. See s. 37, ante, p. 99. It seems that costs of the solicitor to the Suitors' Fund may be paid out of the fund, Re North of England Joint Stock Banking Company, 3 Mac. & G. 362, n., although by Order of 29th October, 1842, a salary of 6001. is payable to him out of the fund, in lieu of all his costs, charges and expenses as such solicitor, except his payments out of pocket (6) References to the Masters of exceptions for scandal, impertinence (abolished by 15 & 16 Vict. c. 86, s. 17) and insufficiency had already ceased from the 1st November, 1850. 13 & 14 Vict c. 35, ss. 27 and 35. (c) But the two Masters released by s. 3 (ante, p. 19), are, by that section, to continue the prosecution of such matters depending before them as it shall, in the opinion of the Lord Chancellor, be desirable should be worked out by them. Class XVIII.] proceedings in the masters' offices. 125 performing all the duties, matters, and things which may be 15&l6V.o.8t). still referred to them,, or which they may be lawfully called upon to perform. From and after the said first day of Michaelmas Term Sec.xxxix. one thousand eight hundred and fifty-two, the course of Masters' offices J practice and proceeding in the offices of the Masters in Ordi- toatof the judges.; nary of the said Court, so far as the same may be inconsis- tent with the rules and regulations to be so as aforesaid made by the Lord Chancellor, with such advice and consent as aforesaid (a), shall be abolished ; and the Masters in Ordinary of the said Court shall, with reference to the proceedings before them, adopt all such rules and regulations (6), and shall conduct the business of their respective offices.as nearly as may be in the manner in which similar business shall be conducted by the Master of the Rolls and Vice-Chancellors respectively, save only that the Master, inst ead of communi- catingdirectly with the judge, is to report shortly the resuft of his inquiries to the CourfCc). ' From and after tne hrst day of Michaelmas Term, one sec. xxxv. thousand eight hundred and fifty-two, the thirteenth, four- i/and is of '3 &;' 4 teenth, and fifteenth sections of the Act passed in the session ' ' °° of parliament holden in the third and fourth years of the reign of his majesty King William the fourth, chapter ninety- four, shall be repealed (d). Proceedings generally. Every decree or order of reference is to be brought 3 June, 1850(e). i nto the Mast er^otfice by the party having the carriage Time for "bringing "'" -^ 5««2;^ _ . jj Qj^gj. Qf refef - (a) See s. 38, ante, p. 98, note (c). The rules now made are dated ^°°°' '^O ^tfit^ the 16th October, 1852. See ante, Class XVII., passim. .-—, .. j„„,a„„. Upon application by motion or petition to the Court, in 15&16V.C.86. a ny suit d epending therein lor an injunction or a receiver , or Answer to be re- to dissolve an injunction, or discharge an order appointing a favit.* ^ *° **" (a) In practice, injunctions are of two kinds. An injunction of the first kind is grantable as an order of course, without reference to merits upon the defendant's making default in appearing or in pleading, an- swering or demurring within the time prescribed by the practice of the Court An injunction of the second kind is, on the contrary, always granted upon merits, and may, under circumstanees, be granted at any stage of a suit after the bill is on the file, without reference to whether the defendant has or has not made default. An injunction of the first kind is properly called a common injunc- tion, and is that which is most generally obtained in suits where the object of the injunction is to stay proceedings at law. To this circum- stance probably it is owing that the common injunction is sometimes distinguished as that which is granted to stay proceedings at law. This is not, however, the true distinctive character of the common injunction, for though the common injunction is never applied to stay waste and simiar injuries to property, the special injunction is frequently applied to stay proceedings at law. The true distinction between the common and the special injunction is, that the former is obtained when the de- fendant has made default on a common order or order of course to which no opposition can be offered ; whereas the latter is always obtained on merits, and never as an order of course. An injunction of the second kind is called a special injunction because it is granted upon special ajpjplication and not as an order of course. Drewry on Injunctions, Introduction, p. v. and note (6), and p. vi. K 2 rent and costs. 132 INJUNCTION. [Class XIX. 15&16V.C.86. receiver, the answer of the defendant shall, for the purpose of evidence on such motion or petition, be regarded merely as an affidavit of the defendant, and affidavits may be received and read in opposition t hereto (a). 15 & 16 V. In case the said lessee (c), his assignee, or other person •=• ^piy; claiming any right, title, of interest, in law or equity, of, in, or Lessee not to have to the said lease fc"), shall, within the time aforesaid (c), proceed injunotion with- . ^/' - -r, . , ,\i , out payment of for relief m any Court of liquity, such person shall n ot hav e or continue any i njunction agamstthe_ijrocee^ingg,at law on such ejectment, unless he does or shall, within fort y days next afte r aT ulI and perfect answer shall be made by the claimant in such ejectment, bring into Court and lodge with the proper officer such sum a nd sums of money as the lessor or landlord shall in his answer swear t o be due and in arrear over and above all just allowances, and also the c osts taxed in the said suit, there to remain t ill the heantig o t" the cause, o r to be paid o ut to the lessor or landlord o n good s ecurity, subject to the decree of the Court ; and in case such proceed- ings for relief in, e quity shall be taken within the time afore- said, and after execution is executed, the lessor or landlord shall be accountable only for so much and no more as he shall r eally a nd bond fide, without fraud, deceit, or wilful neglect, nia ke of the demised premises from the time of his entering into the actual possession thereof; and i f what shall be so made by the lessor or landlord happen to be less th an the rent r eserved on tlie said lease, then th e said lessee or his assignee, before he shall be restored to his possession, shall (a) It has been held that this section does not apply to s uits instituted b efore the com men cement of^^^ ^cU .Lancaster u. i^ancaster, 20 J-iaw 1'. l46. H'ox the rormer practice relating to this subject in cases of appli- cations for special injunctions, see Drewry on Injunctions, 373, and Maden V. Veevers, 5 Bea. d03; in cases of applications to dissolve in- junctions, see Drewiy on Injunctions, 424 and 428, and Supplement, 101 and 103. (6) This is the Common Law Procedure Act, 1852. (c) These words relate to the provisions contained in s. 210, that is to say, to cases between landlord and tenant where half a year's rent shall be in arrear, and the landlord hath right by law to re-enter for the nonpayment thereof, and the lessee or his assignee or other person claim- ing or deriving under the lease shall suffer judgment and execution in ejectment, without paying the rent and arrears syith costs, and without proceeding for relief in equity within six months after execution executed, in which cases the lessee, his assignee and all other persons claiming and deriving under the lease is to be barred and foreclosed from all relief or remedy in law or equity, other than by bringing error for reversal of the judgment, with a proviso in favour of mortgagees not in possession. Class XIX.] injunction. 133 p ay such lessor o r landlord what t he money so by him made 15&16V. o.76. fell short of the reserved rent for the time such lessor or landlord held the said lands. And whereas it is expedient that injunctions and orders to Seo. ccxxvr. stay proceedings should be rendered more effectual, be it orders to stay pro- enacted as follows : In case a ny action, suit, or proceeding in speclficeffect" any court of law or equity shall be co mmenced, sued, or pro- secuted in disobedien ce of and contrary to any writ of injunc- tion, rule, o r order of either o f the s uperio r courts of law or equity at Westminster, or of any judge thereof, in any other Court t han th at by or in which such injunction may have been issued or rule or order made, upon the production to any sucV other Court or judge thereof of such writ of injunction, rule, or order, the said o ther Court (in which such action, suit, or proceeding may be commenced, prosecuted, or taken) or any judge thereof sh all stay all further proceedings contrary to any such injunction, rule, or order; and thenceforth all fur- ther and subsequent proceedings shall be utterly null and void to all intents and purposes : Provided a lways, that no- thing herein contained shall be held to diminish , alter, abridge, or vary the liability of any person or persons commencing, suing, or ] osecutin g any such a ction, suit, or proceeding contrary tc any injunction, rule, or order of either of the Courts afo jsaid, to any attachment, punishment, or other proceeding o which any such person"or persons are, may, or shall be lia le in cases of contemp t of either of the Courts aforesaid in regard to the commencing, suing, or prosecuting such action, suit, or proceeding. ( 134 ) CLASS XX. RECEIVER (a). [For the practice in the Judges' Chambers relating to Receivers, see that title, ante, Class XVII., p. 118.] 15&16V.c,86. Upon application by motion or petition to the Court in any Sec. Lix. su^' depending therein for an injunction or a receiver (6), or to BMderas°aifaffi- dissolve an injunction or discharge an order appointing a re- ■'*"'• ceiver, the answer of the defendant shall, for the purpose of evidence on such motion or petition, be regarded merely as an affidavit of the defendant, and affidavits may be received and read in opposition thereto (c). I (n) In the interpretation of the General Orders of the 16th October, I 1852, the word " receiver "" includes c onsignee and manager, unless I there is something in tne sul)ject or context repugnant to sucn construc- I tion. See Order 61 of that date, an(e, Pi 104, note. 1 (6) A re ceiver ma y be appointed in a s uit b y claim ; see post, Class XXIV. An uno pposed applicati on for a receive? Should be made before a ju dge i n chambers, Blackborongh v. Ravenhill, 20 Law T. 88 ; 16 Jur. 108a; antTTt has ^een laid down, that w here a receiver is in the first in- stance sought to be appointed in the place ot some person already in possession of the property, the motion sbould be made i mopen Court; hi'it thj it. in cases w here a r eceiver h as been al ready appointea, and a vr ' . -^ — =-- L_..C _: .i/_ j-_.t oj tion (c) The former practice as to" reading affidavits in cases of receivers was analogous to the practice in case of special injunctions, as to which see ante, p. 132, note (o), and see 1 Newl. Pr. 314 (3rd ed.) ( 135 ) CLASS XXI. REVIVOR AND SUPPLEMENT (fl). ♦ —* — Where there is a misjoinder of plaintiflfs, and the plaintiff 15 & 16 V. having an interest shall have died leaving a plaintiff on the ' Sec. XLIX. (a) The following observations are made by the Chancery Commis- Revivor in case of sioners on the subject of proceedings by Bills of Revivor and Supple- misjoinder, ment. On the death of a plaintiff, his legal personal representative or heir, as the case may be, files a fresh bill against all the parties to the original suit, who are all served and have all to enter appearances ; each separate solicitor taking an office copy of the bill of revivor, for which he pays office fees. Similar proceedings take place on the marriage of a female plaintiff. Sometimes one of several plaintiffs dies, or is married, and the legal personal representative or husband is disinclined to go on as plaintiff. In this case the other plaintiffs file their bill of revivor against all the old defendants and the new parties. If a defendant dies, a similar bill is filed against his personal representative or heir. In cases of simple revivor, after the lapse of a few days, and no objection being taken, an order of course is obtained for reviving the suit, as it is technically called ; the suit being, until revivor, considered abated or suspended. In the cases of revivor it nevertheless happens frequently, that an answer must be put in, and the cause formally heard, and a decree taken. The ordinary instance of this is, when the person dead was an accounting party, and it is necessary to obtain a decree charging his assets with the debt to be found due from him. The cases, moreover, in which a simple order of revivor will suffice are comparatively rare. If the transmission of interest be any thing other than simple transmis- sion by marriage, heirship, executorship, or grant of administration, the bill must be what is called a bill of supplement. If there be a devise ; or a marriage settlement ; or a bankruptcy or insolvency ; or a change of office, as in the case of a bishop or incumbent or the like ; or if a new person has come into existence interested in the subject of the suit, a bill is in that case filed, to which answers are required, and all the formalities of a hostile Chancery suit gone through, in order to obtain what is called the usual supplemental decree ; that is, a decree directing that the pro- ceedings in the original suit may be carried on between the parties in the supplemental suit in the same way as between the original parties. There are other cases in which supplemental bills are now required to be filed. It is a rule of the Court that any thing which has occurred since the original institution of the suit, cannot be introduced into the bill by way of amendment, and that there must be a new bill with a new subpoena, a new appearance, and a new answer, in order to bring such supple- mental matter before the Court. The reasons for this are merely techni- cal. The plaintiff and defendant being both before the Court litigating the matter in question, there seems no reason why the plaintiff should not be at liberty to show anything which has occurred since the institu- tion of the suit calculated to throw light on the matter in dispute, or which may affect the decree to be pronounced, without the formality, delay, and expense of a new and distinct suit. {Chancery Commissioners' Report of Vllh Januarij, 1852, pp. 20 and 21.) (6) For the title and the time of coraraenceinent of this Act, and the 136 REVIVOR AND SUPPLEMENT. [ClASS XXI. 15&16V.C.86. record without an interest, the Court may, at the hearing of the cause, order the cause to stand revived as may appear just, and pr oceed to a decision ofthe cause, iHt shall see fit, and to ^iv e such directions a s to costs or otherwise as may appear just and expedient. Sec. Lii. Upon any suit in the said Court (aj becoming abated by In case of abate- , , . , . i /. • i ^"""TT""* ment or defect of death, marriage, or otherwise, or Hpfpctive by reason ot some be made to'the ^^ change (6) or transmission of interest or liability, it shall not same effect as an i ^ l •!_•.. u*n r • i * i order to revive or be necessary to exhibit any bill of revivor or supplemental deS'™™*^ bill in order to obtain the usual order to revive such suit, or the usual or necessary decree or order to carry on the pro- ceedings ; but an order to the effect of the usual order to r evive o r of the usual su pplemen tal decree may be obtained as of course (c) upon an allegation of the abatement of such suit, or of the same having become defective, and of the change or transmission of interest or liability ; and an order so obtained, when served upon the party or parties who ac- cording to the present practice of the said Court would be defendant or defendants to the bill of revivor or supplemental bill, shall from the time of such service be bi nding on such party or parties in the same manner in every respect as if such order had been regularly obtained according to the ex- isting practice of the said Court ; and such party or parties shall thenceforth become a party or parties to the suit, and shall be bound to enter an appearan ce thereto in the office of the clerks of Records and Writs, within such time and in like manner as if he or they had been duly served with pro- construction of certain words therein, and also a provision in case of mistakes of parties with respect to the practice and course of proceeding thereunder, see ante, p. 40, n. (6). (a) This section applies to suits wh ich had become abated before the Act came ifttD-opSFation, Jones v. Woods, 20 L. T. 50 ; (Jox «. 1 aylor, ib. ; Lowes v. Lowes, 16 Jur. 968 ; and to s uits by claim a s well as by bill, a lthough it speaks of bills only, Martin ». Hadiow, ii. 964. (6) The birth of a chilH TFuUerton v. Newton, 45 L. O. 86), or the vesting in trus tees ot the pl aintiff 's interest in the subject matter of the suiEXAtkirison v. rarker, 161 ul'. 1000 J, Ifj a change or transmission of interest wit hin the meanin g of this section. ~ (c) W here tne orde r asked for is to the effect of a mere o rder to revive, or the u sua l"supp[emental decree, it is of course, and 'need n6t be men- tioned to the iJourt, Wiming v. nicharas, zu i.aw T. 60 j Martin v. Had- iow, 16 Jur. 964 j Bonfil ». Purchas, ib. 965 ; and the case of an abate- ment by the death of a c reditor sole plaintiff, was on the a pplicatio n of anotner credi tor f ield to be wi thin ifais provisio n. Lowes v. liowes, 16 Jur. »(JS, Hyi. Where the o rder asK ed for is more tha n the commo n order, a supplemental bill or claim musi be filed", Tate v. Lighthead, ii. 964. — — Class XXI.] revivor and supplement. 137 cess to appear to a bill of revivor or supplemental bill filed 15&16V.C.86. against him ; p rovided t hat it shall be open to the party or parties so served, within such time after service as shall be in that behalf prescribed by any general order of the Lord Chancellor, to a pply to the Court by m otion or petitio n to discharge such order on any ground which would have b een open to him on a bill of revivor or supplemental bill, stating the previous proceedings in the suit and the alleged change or transmission of interest or liability, and praying the usual relief consequent thereon : Provided also, that if any party so served shall he under any disabilit y other than coverture, suc h or der shall be of no force or effect as against such party until a g uardian or guardian s aj litem shall have been duly appointed for such party, and such time shall have elapsed thereafter as shall be prescribed by any general order of the Lord Chancellor in that behalf. Any p arty under no disability, or under the disability of 7 Aug. 1852(a). coverture, who may be served with an order to revive any Time''to'appiy'for suit, or to carry on the proceedings therein, may apply to fo'revhre! °* "*" the Court t o dis charge such, order within t welve d ays after such service ; and any party be ing under any disability , other than coverture, who may so served, may apply to the Court to discharge such order within t welve days a fter the appoint- ment of a guardian or guardians ad litem for such party ; and until such period of twelve days siiall" have expired, such order shall have no force or effect as against such last men- tioned party. It shall not be necessary to exhibit any supplemental bill 15&I6V.C.86. in the said Court for the purpose only of stating or putting ^^ fupi^Sentai in issue facts or circumstances which may have occurred pjJttin?ta1ssue' after the institution of any suit ; but such facts o r circum- "^^ '^'^''■ stances may be introduced by way of amendm ent into the . original bill of complaint in the suit if the cause is otherwise in such a state as to allow of an amendment being made in the bill (i), and if not, the plaintiff shall £e at liberty to (o) For the time of the commencement of the orders of 7th of Nov. 1852, and the meaning of certain words therein, see ante, note (o), p. 42. (6) A plaintiff may, with more or less facility at various stages of a cause, and under circumstances and upon conditions varying according to the state of the proceedings, but the consideration of which would be out of place here, obtain leave to amend his bill even after he has filed replication. See Order 68 of 8th of May, 1815. But after publication 138 REVIVOR AND SUPPLEMENT. [ClASS XXI. 7 Aug. 1852. Ord. XIIV. Mode of putting in issue new facts. 15&16V.C.86, State such facts or circumstances on the record, in such manner and subject to such rules and regulations with re- spect to the proof thereof, and the affording the defendant leave and opportunity of answering and meeting the same, as shall in that behalf be prescribed by any general order of the Lord Chancellor. If the plaintiff, in any cause which is not in such a state as to allow of an amendment being made in the bill, shall desire to state or put in issue any facts or circumstances which may have occurred after the institution of the suit, he may state the same, and put the same in issue b y filing i n the Record and Writ Clerks' Office a statement , either written or prinfefl, to be annexed to the bill (a) ; and such proceed- ings by way of answer, e vidence, and otherwise, are to be had and taken upon the statement so fileJ. as if the same were embodied in a supplemental bill ; provided always, that the Court may make any order which it shall think fit for accelerating the proceedings thereunder, or proceedings there- in, in any manner which may appear just and practicable. That whenever an assignee shall die, or be removed, or a new assignee shall be 6hosen, no action at law or suit in equity shall be thereby abated, but the Court in which any action or suit is depending may, upon the suggestion of such death or removal and new c hoice, allow the name of the sur- vivin g or n ew assignee, to be s ubstituted in the place of the former, and such action or suit shall be prosecuted in the name or names of the said surviving or new assignee or as- signees in the same manner as if he had originally com- menced the same (c). 12 & 13 V. c. 106(6). Sec. CLVII. No abatement on death or removal of assignee. passed, a bill cannot be amended except for the purpose of adding parties or showing that parties may be dispensed with, or in matters ot form, such as adding to the prayer and the like, Goodwin v. Goodwin, 3 Atk. 370 ; Palk v. Lord Clinton, 12 Ves. 48 ; Watts v. Hyde, 2 Coll. 368, as reversed on appeal 2 Ph. 406, and see Milligan v. Mitchell, 1 Myine & C. 433 ; Gibson v. Ingo, 5 Hare, 156, and Bateman i>. Margeri- son, 6 Hare, p. 502. (a) The Court will not at the instance of a defendant direct the plain- tiff to file such a statement, Langdale i>. ijiU, 16 Jur. 1041. (b) This is the Bankrupt Law Consolidation Act, 1849. (c) This section is similar to sect. 67 of the former Baukrupt Act, 6 Geo. 4, c. 16. The former and present Insolvent Debtors Acts also con-- tain similar -clauses, see 7 Geo. 4, c. 37^ s. Z6, 1 ik 'i Vict. c. TOT, s. 53, and 7 JK » Vict. c. VO, s, 16, and therefore the decisions upon either of the above sections are equally applicable to the others. It has been decided that these provisions extend to provisional and official assignees Class XXI.] revivor and supplement. 139 So often as her Majesty, by any warrant under her sign 15 & 16 V. manual, shall be pleased to direct the solicitor for the time <:.3(a). being for the affairs of her Majesty's treasury to apply for proceedings by and obtain letters of administration of the personal estate or against the _ *^ solicitor of the and effects of any person dying intestate to whose personal treasury as admi- j«.,-_. ^ nistrator in right estate and effects her Majesty may have become entitled in °t "le crown may .,. „, , . , „,.. . be continued by right ot her royal prerogative, or letters of administration and against his (whether general or limited) of the personal estate and ef- ^""^^^°^ ^ ■ fects of any other person deceased, where in respect of the interest of her Majesty in such estate and effects such ad- ministration may be rightfully granted to a nominee of her Majesty, it shall be lawful for any competent Court in Eng- land, upon application, in pursuance of such warrant, to grant administration accordingly to such solicitor for the time being and his successors in the office of solicitor for the af- fairs of her Majesty's treasury for thfe use and benefit of her Majesty; and in every such case the administration so granted, and the office of administrator under the grant, with all the estates, rights, duties, and liabilities of such administrator, shall, upon the death, resignation, or removal of the solicitor for the affairs of her Majesty's treasury for the time being, devolve upon and become vested and continue in the suc- ceeding solicitor by virtue of his appointment, and so in per- petual succession without any further grant of administration or any assignment or transfer of the estates of the adminis- trator ; and all actions, suits, informations, and other pro- ceedings whatever at law or in equity by or against any such solicitor for the time being as such administrator at the time of his death, resignation, or removal, shall continue and may be proceeded with by, in favour of, and against the succeed- as well as to creditors' assignees, Mendham v. Robinson, 1 Mylne & K. 217 ; Dance v. Shaw therein cited, p. 219 ; Man v. Ricketts 7 Bea. 484, 1 Ph. 617, and the cases cited 7 Bea. 486 ; Lloyd v. Waring, 1 Coll. 536, but the provisions apply only to assignees plaintiffs. Bain- brigge v. Blair, Younge, 386 ; Mendham v. Robinson, supra, over- ruling Gilchrist v. Ponten, Younge, 387, n. On the change of an as- signee defendant, a supplemental bill was formerly necessary, Parker v. Constable, 11 Jur. 765 ; but now see 15 & 16 Vict c. 86, s. 52, supra, p. 136. An assignee so substituted as plaintiff may issue a writ oifl.fa. for money ordered to be paid to his predecessor, Man v. Ricketts, 10 Jur. 913. (a) " An Act to ja:ovide for the administration of personal estates of intestates and others, to which her Majesty may be entitled in right of her prerogative, or in right of her Duchy of Lancaster." Royal Assent, 20 April, 1852. 140 REVIVOE AND SUPPLEMENT. [CtASS XXI. 15 & 16 V. c. 3. Sec. III. Administrations granted to the late solicitor of the treasury, to be continued by the solicitor of the treasury for the time being^ ing solicitor in like manner ; saving always the effect of every limitation in duration or otherwise under the terms of the grant of any such administration ; and saving to every Court having jurisdiction in this behalf all such right and authority to revoke or repeal any such administration as such Court would have had during the continuance of a like ad- ministration granted to a nominee of her Majesty in case this Act had not been passed. In every case where letters of administration of any per- sonal estate or effects of any intestate or other person de- ceased have been granted to the said George Maule (a) as the nominee, or for the use and benefit of any of her Majesty's predecessors, or as the nominee of her Majesty, or for the use and benefit of her Majesty, and now remain unrevoked, such letters of administration shall not be deemed to have determined by his decease, but such administration and the office of administrator under the grant, and all the estates, rights, duties, and liabilities vested in the said George Maule as such administrator at the time of his decease, or which would have been vested in the said George Maule as such administrator if living, shall, upon the passing of this Act, devolve upon, and become vested and continue in the solicitor for the affairs of the treasury for the time being, with the like succession and in like manner as in case of the administrations which may be granted to the solicitor for the affairs of the treasury for the time being in pursuance of this Act ; and all actions, suits, informations, and other pro- ceedings at law or in equity had, commenced, or taken by or against the said George Maule as administrator under any such administration, and pending at the time of his decease, shall not be deemed to have abated or been discontinued by the decease of the said George Maule, but shall continue and take effect by, in favour of, and against the said solicitor for the time being for the affairs of her Majesty's treasury, as the same would have continued and taken effect if such ad- ministration had been granted to the said George Maule as solicitor for the time being of her Majesty's treasury under the provisions of this Act. (a) i. e. George Maule, Esq. deceased, late the solicitor for the affairs of her Majesty's treasury, see s. 1. ( 141 ) CLASS XXII. EXCEPTIONS FOR SCANDAL. That all exceptions for scandal, impertinence (6), and in- 13 & x4 V. sufRciency (c), which, according to the existing practice of c. 35(a). the said Court, are referred to the Masters of the said Court, Sec. xxvii. shall not any longer be so referred, but shall be heard and heMdVytL" determined by the said Court in the first instance, '^°™'' The times of vacation (e) are not to be reckoned in the 2Nov. 1850(d). computation of the time allowed for filing or setting down vacaHons'^t to exceptions for scandal, Mif^kh&eiQe \b), or"~insufficiency in be reckoned. cases where the time is not limited by notice given pursuant to the 13th of these orders (/). These orders do not apply to any reference for scandal, ord. v. hnperti(ftai>^ (6), or insufficiency (c) pending before any of piyt"o?drefer'' the Masters at the time when these orders come into opera- ™™^' tion (g), but as to all such references the existing rules and orders of the Court are to remain in force. No order is to be made for leave to file excepti ons nunc Ord. vi. . /7\ " No order to file \ pro tunc (^h). nunc pro tunc. \ Exceptions to answers for i nsufficiency (r^ or to any plead- Ord. xii. ing or other matter depending before the Court for scandal dom' and no'tice "^ thereof. (o) For the title and commencement of this Act and the power therein contained to make general orders, see note (^), an/e, p. 63 ; and for the interpretation of certain terms contained in the Act, see post, " Special Case," Class XXV., note. (ft) As to impertinence, see ante, p. 63, note (d). (c) As to exceptions for insufficiency, see ante, p. 63. (d) These seven orders were, with others of the same date, expressed to be made in pursuance of the 13 & 14 Vict. c. 35, and therefore have statutory force. They took effect on the day of their date (see Order 3 ), and were substituted for the following general orders, which by Order 1 were discharged, viz.. Order 16, Arts. 6, 7, 8 and 9, and Orders 17, 19, 38, 39, 40, 41 and 42 of 8th May, 1845 ; and see note (o), ante, p. 64. (e) For the times of vacation, see ante, p. 64, note (ft). (/) The 13th Order (for which see ante, p. 66,)applies only to excep- tions for i nsufficiency of answers. (g) i. e. on the '2tid Wovemher, 1850. See Order 3. (h) See note (ft), ante, p. 64. U'Z 2 Nov. 1850. Ord. XXIII. Exceptions to be in writing. Ord. XXIV. Time for setting down exceptions. Ord. XXV. Expunging scan- dalous matter. EXCEPTIONS FOR SCANDAL. [ClASS XXII. or impferti^nee, or for scandal and impertinence (a), are to be se t down for heari ng by the registrar at die request of the party filing the same upon the production of a certificate •of the C lerk of Record s and Writs of t he filing o f such ex- ceptions (6), or (in the case of exceptions to an answer for insufficiency) of the filing of a further^answer ; and the same are to be advanced and puTTri'the paper for hearing on an early da vCc), and the party setting down any such exception shall, on the day on which the same shall be so set down, serve a notic e thereof on the party whose pleading or other matter is excepted to, otherwise the said exceptions shall be deemed not set down. No pleading or other matter depending before the Court is to be set down for hearing for scandal or imp/^tiijence (a), unless e xceptions are taken i n writing and s igned by counsel , describing the particular passages which are alleged to be sc andalous or im pertine nt (a) — (a). Where any person or party having filed exceptions to any pleading or other matter depending before the Court for scandal, and any person or party having filed such excep- tions for impertinence (a), does not "set the same down for hearing w ithin six days after th e filing, t hereof, such excep- tions are to be considered as abandoned, and the person oT party by whom such exceptions" were'filed is to pay to the opposite party such costs as may have been incurred by such party in respect of such exceptions (e). Upon the production o f an orde r, made upon its being held that any pleading or other matter depending before the Court is scandalous or impertinent (a), the officer having the custody or charge of such pleading or other matter is to expunge from such pleadfng oF'otlTer matter s uch parts thereof as the Court has held to be scandalous or imperti- nent (a), and thereupon the person or party requiring such scandalous or impertinent (a) matter to be expunged, is to pay to the officer expunging the same the same fee as on the like occasion has heretofore been paid (/). (a) As to impertinence, see ante, p, 63, note (d). (6) See note (/), ante, p. 65. (c) See note (6), ante, p. 66. (d) This order was substituted for the discharged Order 38 of 8th May, 1845. (e) This order was substituted for the discharged Order 39, ih. (/) This order was substituted for the discharged Order 41, ib. ( 143 ) CLASS XXIII. ELECTION TO PROCEED AT LAW OR IN EQUITY. A defendant, whose answer is not excepted to or set down 2Nov. I850(o). for hearing on former exceptions, alleging that the plaintiff is ora. vii. prosecuting him in this Court and also at law for the same in™ora°ei to'eiect, matter, may, upon the expiration of eipht days after his TxcepMd to!' "°* answer, o r further an swer , is filed, obtain as of course, on motion or petitipn, the u sual order f or the plaintiff to make his e lection in which Court he will proceed. A defendant, whose answer is excepted to, alleging that Ord. xiii. . ;..«,. . — f.* . r^ — 7^1 , , , The like, where the plaintittis prosecutmg him m this Court and also at law answer excepted for the same matter, may, by notice in writing, require the ' plaintiff to set down the exceptions within tour days from the service of the notice. • And if the plaintiff does not set down such excep- tions w ithin such i'our\ days, such Jefenciant is entitled as of cours^ on motion or petition, to obtain the usual order for the plaintiff to make his election in which Court he will proceed^ " (a) These two orders were, with others of the same date, made in pursuance of the 13 & 14 Vict. c. 35, and therefore have statutory force. They took effect on the day of their date (see Order 3), and were sub- stituted for Arts. 21 and 22 of Order 16 of 8th May, 1845, which by Order 1 were discharged ; and see note (o), ante, p. 64. ( 144. ) CLASS XXIV. CLAIMS. [And see titles "Bills and Claims," Class V. ; "Interrogatories for the Examination of the Plaintiff," Class X.j "Evidence," Class XIII.; "Decrees and Orders," Class XV.; "Rehearings and Appeals," Class XVI. ; " Proceedings in the Judges' Chambers," Class XVII. ; " Proceedings in the Masters' Offices," Class XVIII. ; " Receiver," Class XX. ; " Revivor and Supplement," Class XXL] 22Apr.l850(a). Any person seeking equitable relief may, without special Ord. I. leave of the Court, and instead of proceeding by bill of com- fliedta certain plaint in the usual form, file a claim in the Record and Writ °^^^' Clerks' Office in any of the following cases (6) ; that is to say, in any case where the plaintiff is or claims to be, — 1. A cr editor u pon the estate of any de ceased person , seek- ing payment of his debt out of the deceased's per- sonal (cj assets (ct). (a) These orders came into operation on the 22nd May, 1850. Order 34. In these orders and the schedules the following words have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there be something in the subject or context repugnant to such construction, viz. 1. Words importing the singular number include the plural number, and words importing the plural number include the singular number. 2. Words importing the masculine gender include females. 3. The word " affidavit" includes "affirmation" and " declaration on honour." 4. The word " person or party" Includes a body politic or corporate. 5. The word " l egacy" in cludes " an an- nuity,", and a sp ecific a s well as a Ti ecuniary ipffanv- 6. The word " legatee" includes a p erson interested in a legacy. 7. The expression "residuary legatee" includes a person Interested in theresidue. Order 35. (6) But it is in the discretion of the Court to grant or refuse the relief sought. Penny v. Penny, 9 Hare, 39. Since the date of these orders, proceedings in some of the cases therein provided for (for instance in cases by and against executors or administrators) have been much sim- plified. See post. Class XXVI., sects. 3 and 4. !(c) Where the claim affects real estate , leave to file it is necessary , and will be granted under Order 6 (infra), Cox v. Yorke, 14 Jur. HiS; Rose V. Smith, ib. 544 ; Anon., ib. 518 ; Goodall v. Skerratt, i6. 845. (rf) This case is applicable where the cl aimant is not the original Class XXIV.] claims. 145 2. A legatee un der the will of any deceased person, seek- 22 April, 1850. ing payment or delivery of his legacy o ut of the de- ceased's personal (a) asse ts (6). 3. A re sidu ary legatee, or one of the residuary legatees, of any deceased person, seeking an account of the resid ue and payment or appropriation of his share therein (a) — (c). ''~" 4. The person or any of the persons entitled t o the per- sonal estate o f any person who liiay have died intes- tate, and seeking a n acco unt of such personal estate andpajment of his share thereof (d). 5. An e xecutor or a dmin istrator of any deceased person seeking to have the personal estat e of such deceased pCTSon~ a dministered under the d irections of the Court (e). creditor, but h as become in^firi-sffifl i n or entitled to the debt j see note at the end of form 1 ot ^Schedule A., post, p. 158. The Court will make the c ommon administration decree only, and will not order payment, Jones 'v. y winfSfa,~t*" JuK S68: "^ ■ (o) See note (c), ante, p. 144. (6) This article includes the case of a specific legacy to executors in tt^ljpr a p grson for life, and then for children wko were the claimants, Smith v. Smith, 14Jur.513 , but not wherB'the fund has beeii invested in the names of trustees, Early v. Whitling, ib. 658. It is applicable gene- rally where the legacy is an annuity, or specific, o r where the claimant is not the legatee , b ut has beco me entitled to or interested m the legacy, iiee note to i'orm 2 of schedule A., posi, p. laSl' (c) This case is applicable where the claimant is not the residuary legatee, but has become entitled to or interested in the residue ; see note to form 3 of schedule A., post, p. 160. A claim by a legatee, who was also a residuary legatee, may he filed without leave, Anon. 14 Jur. 518 ; but leave is necessary where the representative of the residuary legatee is also administrator de bonis non of the testator. Robson i>. Jefferson, ib. Where the gift h as become a trust, leave is necessary, see Woodford V. WoocUbrd, ib. 846; Dawsoii iC Young,TSr847,' and^ FrShkis v. Wash- bourne, ib. 848 J in which l ast case th ere was also a c harge of misappli- cation of the funds and of w jlhil de fault ; and as to wilful default, see also 'I'oon V. Ootterell, ib. 846 ; Davis v. Davis, ib. 848 ; and Eccles ti. Cheyne, 9 Hare, 215. Liberty may be given to the Master to state special cir- cumstances, Slade ». Robinson, 14 Jur. 584. (d) A claim by a married woman does not require leave, although part of the relief asked was a settlem ent. Rolling v. Hargrave, 14 Jur. 543. "(e) Itls no'obje cHoh'to a "c laim bv a n executor that an ad ministration spit is p endin?] ^"o" ne of the n e xt of kin. W oodman v. Farley, 14 Jur. 898 J nor that the ex ecutor_h as not possessed any of the assets. H olme v. HolmeTTS'Jur. 1 004. ^.. f ave -is necessUry H ie Cling a claim by executors who are also dg visees in trust. Rickford v. Young, 14 Jur. 428, and also by an a dministrator de on"" """ty 'bn i;^ afpn the representative of the r esiduary legatee of the testator, Robson v. Jefferson, supra, but not bv an executor who had attained his majority against the administrator durante minori state, unless in a case of wilful default, Davis v. Davis, supra; and as to wilful default, see also note (c), supra. 146 CLAIMS. [Class XXIV. 22ApriI,I8S0. 6. A legal Or equitable mortgagee or person entitled to a lienas security for a debt, seeki ng foreclosu re o r sale, or otherwise to enforce his security (a). 7. A person entitled to redeem any legal or equitable mSrtgage br any hen, s eeRmg 'to redeem the same (6). 8. A person entitled to' the specific performance of an agreement for the sale or purchase' S^Plnyproperty, seeking'Suchj peciBnjte Efiapp ancejc). 9. A person entitled to an account of the dealings and transactions of a partnership disggj ged nr expired , seeking such account (d). In the case provided for by this article, any one person, who might have claimed relief under the 3rd or 4th Articles, and the co-executor or co-administrator, if any, of the plaintiff, may be named as defendants to the suit, and in the first instance no other person need be named. See Order 7, post, p. 149, and note thereto. (o) A claim for foreclosure may be filed, without leave, by a mortgagor against a mortgagee and his judgment creditor, Hanson v. Games, 14 Jur. 543 ; but where there are subsequent incumbrancers, leave seems to be necessary, Wadeu. Nawnham, i6.518 ; Peacoppo. Humble, ift.; so where, in addition to foreclosure, the claim asked for the conveyance of the fee in pursuance of a covenant for that purpose, Phipps e. Budd, 15 Jur. 99. At the hearing of a claim for foreclosure the plaintiff may take either the common order or an enquiry as to other incumbrancers, who may be brought before the Court by supplemental bill, Robinson v. Turner, 9 Hare, 129 and 488 ; Smeathman v. Bray, IS Jur. 1051 ; but see Burgess V. Sturges, 14 Bea. 440. In a case where a claim incorrectly asked for a foreclosure instead of a sale, an order was made for a sale without re- quiring an amendment, Jenkin », Row, 5 De G. & S. 107. The Court may now i n all suits for f oreclosure d irect a sale instead of foreclosure, in sucn terras as the Court may direct, and w ithout previously d e termining the pri orities o f incu mbran ces. See 15 & 16 Vict. c. 86, s. 48, ante, p. 31. For cases'mi3er this section, see Anning v. Lavers, 20 Law T. 61 j Cator V. Reeves, 16 Jur. 1004 ; Hiorns v, Holtom, ih. 1077 ; and Girdle- stone V. Lavender, ib. 1081 ; and for the form of ofder in such cases, see Staines v. Rudlin, 16 Jur. 965. (6) Under this article a claim maybe filedagainsta mortgagee in pos- session without leave. Toon v. Cotterell, 14 Jur. 846 ; but leave must be obtained to file a claim to redeem a first and also a second mortgage, Ainsworth v. Roe, «6. 584. In an order on a claim for redemption the costs of a pending suit to foreclose will be provided for, S. C. ib. 874. J Tj- (c) For the specific perf ormance of an agreement for a lease l e ave to ^non ^ y JitZTe^ gle a claim is requisit'e , see iscargill v. Hurr^TrjufrS^^fs^h a case" A -yl where a lease contained a power for the lessee to purchas/the fee simple "i^p. _i/ . y^ ^jjij jjjg lessor died, having by his will devised the property to trustees, leave was considered necessary to file a claim for specific performance, Thompson ». Wilberforce, 14 Jur. 518 ; leave is a lso n ecessary to file a c laim fo r the purpose of compelling the production of deeds pu rsuant to _ a covenant for that purpose, W right ». craw, ii>. 84/. 'Leave"is not necessafy"5ierely because the title has been accepted, so that no reference is necessary, Hemming v. Mayo, 14 Jur. 847. (d) Leave was considered necessary to file a claim for an account of profits of a particular business not being a general partnership, Eyre v. CtASS XXIV.] CLAIMS. 147 10. A p erson entitled to an equitable estate or interes t, 22 April, 1850. and seeking'To usePtE e'nam'e of his trustee in prose- cuting a n action for his own sole l)enetit(a). 11. A person entitled to have a new trustee appointed in a case where there is no poweF in "the instrument creating the trusts to appomFnew ^trustees, or wheir?' the power cannotbe_exerdsed, and seeking to appoint a new trustee (6). Such claim in the several cases enumerated in Order I. Ord. ii. is to be in the form and to the effect set forth in schedule A. hereunder written (c) as applicable to the particular case, and the filing of such claim is, in all cases, not otherwise provided for, to have the force and efiect of filing a bill (rf). Every such claim is to be marked at or near the top or ord. iii. upper part thereof in the same manner as a bill is now marked ^^ '° ** '°^^' with the name of the Lo rd Chancellor, and one of the Vice- Chancellors, or with the name of the Master of the Rolls (e). Upon filing such claim, the plaintifftEere'&y claiming may ■jyj.jt'Jf^uX' mons. Williams, 14 Jur. 568 ; Sevan v. Baynton, ib. 846 ; but leave will not be ^ven to file a claim for taking special accounts and for an injunction, such a case being considered as not being within the orders, Carmichael V. Ogilby, 19 Law J. 424. (a) Leave w as considered n ecessary in order to enable a cestui que trust to file a clans' seeking to use^the name of executors in suing a lessee on covenants entered into by him with file testator who was lessor, Macdermott v. Ward, 14 Jur. 518. (6) In Tilt V. Jesselyn, 14 Jur. 848, it was held that leave was not ne- cessary for filing a claim under this article in the case of a lunatic donee of a power, although it was suggested that he might recover any day, and be able to exercise the power. But leave is necessary w here the donee of the power refijse^^jct upon it. Anon., 14 Jur. 518; Tarfton B. litley, ib, 848 ; anSTBrooMTTMills, ib. 1080 ; so where all the pers ons whose c o nsent to the appointment w as required were deadj Chamore v. Ikllauc^ 10. bii). (c) See infra, pp. 158 to 166. In point of form, a claim should state the whole subject matter, and therefore instrument sEould be set out fiillv. b ansev v. Jvtarshall. 14 Jur. 639. 'frsEouIg state all the material tacts which are within the knowledgeof the plaintiff, Goode v. West, 9 Hare, 378; Broini!rer Mooi=rl5. oTT; Whittington ». Corder, 16 Jur. 1034 ; and all the requi site facts upon which the d ecree is to be founded. Penny v. Penny, 9 HareTSS Pand must pray for any special relief in - tended to be asked for. Woodman «i. J'Sfley, 14 Jur. 898 j for the orders were not intended at all to alter the ordinary rule of the Court to pro- ceed secundum allegata et probata, Johns v. Mason, 9 Hare, 29 ; and see Gilpin V. Magee, 20 Law J. 639. (d) By the 15 & 16 Vict. c. 86, it is provided that claims shall be p rinted, a n d by s. 4 of that Act, the filing of a printed claim is to have tbe same effect as the filing of a claim and the issuing of a summons then had. See ante, p. 49. (e) For the manner in which bills are so marked, see ante, p. 49. l3 Ord. V. Form of auni' mens. Ord. VI. Provision for claims in other cases. 1 18 CLAIMS. [Class XXIV. 22 April, 1850. sue out a writ of summons (a) against the defendant to the claim, requiring him to cause an appearance to be entered to such writ, and also requiring him, on a day or time to be therein named, oil on the seal or motion day then next follow- ing, to show cause, if he can, why such relief as is claimed by the plaintiff shfculd not be had, or why such order as shall be just with refere nee to the claim should not be made. Such writ of si mmons (ci) is to be in the form and to the effect in that beha f set forth in No. I. of schedule B. here- under written, w3th such variations as circumstances may require, and is tof be sealed with the seal of the ofHce of the Clerks of Records and Writs. In any case, ot|ier than those enumerated in Order I. (6), or inlmycase to"wfiich the forms set forth in schedule A. (c) are not applicable, the C ourt ( if it shall so think fit) may upon the e x-parte applicati on of any person seeking equitable relief, and upon reading the claim proposed to be filed, give leave to file such claim, and sue out a writ of summons (a) thereon under these orders (d) ; and if such leave be given, (a) The writ of summons was abolished from the 1st November, 1852, except on claims filed previously. See IS & 16 Vict, c. 86, s. 2, and Order 13 of 7th August, 1852, ante, p. 51 ; but the Lord Chancellor is empowered to revive the practice of issuing and serving vmts of sum- mons. See s. 9 of the above Act, ante, p. 50, note (o). (6) Anle, pp. 144 to 147. (c) Post, pp. 158 to 166. (d) Th ese orders w ere intended for simple cases, that is to say for cases w here, according to the case made by thT claim, the decree wo «ld be of course u pon a bill filed, provided all proper parties were before tKeT!b"urir and thereforSTa claim for an account of trust monies, that the trustees should be charged with wilful default, and for an appointment of new trustees, was, as to the appointment of new trustees, and the prayer for wilful default, dismissed, Eccles v. Cheyne, 9 Hare, 215. But be- sides the special cases stated in the notes to Order 1, ante, pp. 144 to 147, in which the Court will grant leave to file claims as not coming .jvkhin the terms of the respective articles of that order, leavehasalso been give n to fi le claims in the following cases, viz., to enlbrce the dis^ tribution " of the' '{i lfo'cee ^ of a sale, Brooke v. Biddall^ 14 Jur. Sit!;" for the transfer of a trust rttH3*wIie?e the point in dispute was a question of foreigA law, Salviairs. Denman, ib. 543 ; to compel the defendant to make his election un der a will, Rayner v. Rayner, ib. ; for the arrears of an annuity c harged oii [real a rid personal estate, ib. 613 ; by iSe tenant" of a fund^der a settlemen t, for its i nvestment an d for payment to him of the income. Bold ». Fowell, ib. 682 ; to compel t he rene wal by the defendant of his lostjli,eaye on his beingindCTtiMlled,''K1tBaes v. MorseT ib. 800 ; by a creSitrn Mibehalf, ScTfor flie execiiiron of the trusts of an a ssignment for, the .iienefit of creditors, a xidUSf ail agCaiHlI, ijowyer v, Phillips, ib. 848 ; and to enable ' "^ deed after the time limited for so doing was past, (iould ». Robertson, I II.. iide er a similar ips, ib. 848 ; and to enable a creditor to _come_ after the time limited for so doing was (6. J a claim will also lie for a partition of real estate, and notwithstand- Class XXIV.} claims. 149 an endorsement thereon by the registrar upon the proposed 22April,1850. claim shall be a sufficient authority for the Record and Writ Clerk to receive and file such claim (a). In the case provided for by the 5th Article of Order Ord.vii. I. (6)i any one person who, under the 3rd or 4th Article of cases under 5th Order I. (c), might have~claimed relief against the executor or administrator of t!ie"1ffeceaieJ"per§on vJhose personal es- tate is sought to be administered, and the co-executor or co- administrator (if any) of the plaintiff, may be named in the •wmt-o£sjiiiimons-(rf) a s defendant s to the suit ; and i n the first injtance no other person need be therein named (e). In othercasggi the only person who need be named itp^he— «. ord. viii. n ■ """" ■^- ' / ,v V /. 1 "— ; -— — ^--'-'-';-- Y Defendants in WHt . at . smtWHens^a) as defendant to the suit m the first other cases. instanc eX/*) is the person against whom the relief is directly claimed (g). ing the pendency of a suit by bill, Brace v. Foulkes, 16 Jur. 738. It would seem also that these orders werenotintended to apply to cases of i njunctio n, or ne exeat regno, or for malon^infants wards of the Court, inasmuch as by the lb & lb Vict. c. 8ff, s. 6 (onte, p. ISTTwr'itten iBSteaRl of printed bills may be filed for those purposes, but there is no provision for written claims. Where leave to file a claim ought to have been, but was not, obtained, the Court at the hearing will order it to be struck out of the paper and give leave for it . to be filed as a special claim, Chambre v. Maude, li Jur. 540 ; but on the hearing of another case, before another judge, a few days afterwards (in which Chambre v. Maude was not cited), per- mission to file the claim nunc pro tunc was given, and the case was pro- ceeded with, Scargill v. Hurry, ib, 847, and see Matthews v, Pincomb, 20 Law J. 395. Claims m ay be filed without le aye^not only in the cases expressly mentlbnedln Order 1 (ante, pp. ijjf "to 147, and see the notes thereto), but also in ruRpn whpre thflrp i s an union of several of the claims s peci- fied in the articles ofThat order. See Anon. 14 Jur. i)t»; Forrest v. Scholfield, ib. 845 ; and Hill v. Toilet, ib. 848 ; but see Cramer ». Jen- nings, ib. 518 J this case however may be reconciled on the ground that there was a charge of wilful default. (o) All c laims requiring leave fo r filing must be settled a nd signed bv counsel. See the cases cited in tlie foregoing notes passim, -^(h) Supra, p. 145. (c) Ibid. (d) See note (o), ante, p. 148. (e) And see Leslie v. Smith, 6 De G. & S. 78 i see' also 15 & 16 Vict, c. 86, H. 42, rules 6, 7 and 8, and Orders 40 and 41 of 7th August, 1852, ante, pp. 41 and 42. (/) As to the meaning of the words " in the first instance," see Penny V. Penny, 9 Hare, 39. (g) In a claim by some of the residuary legatees the others are not necessary parties, but they ought to be summoned before the Master, Watson V. Young, 1 Sim. N. S. 114; one of the objects for which these orders are designed being to avoid the expense occasioned by making numerous parties to a bill in respect of concurrent interests with that of the plaintiff in the subject of the suit, and to revert to the practice of the 150 CLAIMS. [Ct ASS XXIV. 22 April, 1850. All claims, and all writs, caveats, proceedings, directions, ord. IX. and orders consequent thereon, either before the Court or in subject totte" ^ the Masters' offices, are to be deemed proceedings, writs, and general practice. Qj-^gf^ subject to the general rules, orders, and practice of the Court, so far as the same are or may be applicable to each particular case and consistent with these orders (a) ; and all Court which existed and was acted upon in Lord Hardwicke's time, when it was said of parties having such interest that they might come in before the Master, see Eccles v. Cheyne, 9 Hare, 215 ; but a n admini stration claim canno t be mai ntained against oneof_sevCTal executors m ffie^ a b- seUBB^f flife' others, or dftSe personSTrepfraenSSves of those who are SeadTl'enny v. Penny, 9 Hare, 39. This rule, however, does not extend further than the immediate representatives of the testator, and therefore it is sufficient to make the surviving executor of a deceased executor a defendant without the representatives of his deceased co-executor, Rob- son V. Jefferson, 14 Jur. SiS. In a claim by an e quitable mortgagee of alTTEeSll real e state fo r sale, it was held that a ll tlie subsequen t mortgagees were necessary parTie sTand that it was not suillcient to summon tb^inbefore tbe Master, Burgess v. Sturges, 14 Bea, 440 ; but in a claim ay ainst the represe ntatives of a d eceased partne r, it was considered sufficien t to sWRmonTfi^" siSmvIngpOTtner Detore the Master, Hills v. M'±tae, 9 tiare,'2Wr^~In caseswher e married women are interested their husb ands niust_be j)arties, Gray v. Dickinson, i4 Jur. 846 ; but in a siiBse^ttSHf" case It wfe BSRl that this was not an objection in limine, see Jackson v. Grant, 15 Jur. 72. The necessity for making persons having concurrent and beneficial interest parties to a suit has been much obviated by the 15 & 16 Vict. t. 86, s. 42. See ante, Class IV., p. 40. (a) Many of tbe proceedings under these orders differ so materially irom the proceedings in suits by bill, that in such cases a different practice has become necessary, and accordingly a cj^m which ^ fnulti- farious wUl be taken off the file, Witherden ». Mercer, 14 Jur. 613; tut "SfiTDavies v. I>a.^es;'2t"LSwT. 543. Orders toamend must be obtained fi-om the court, see Early v. Whitling,"12 Jtiea. 349 ; Potts v. TEames ffaven Company, 15 Jur. 762 ; but the Court i s not so strict with these forms of proceedings as with bills, and will allow an amendment at the hesffing, see Jones v. Beach, 21 Law J. i)4g, as well as after it has been seTSwn for hearing , Potts v. Thames Haven Company, supra. The ap- plication to amenoDy adding parties does not require notice. Hayward V. Price, 14 Jur. lUsS. The Couri will no( allow an appearance to be entered by the plaintiff for an absconding defendant, under Order 31 of 8th May, 1845, inasmuch as the 13th of these orders do not authorize the Court to make a decree against a defendant/or whom an appearance has been entered, and therefore such an appearance would be inoperative. Smith V. Corles, 1 Sim. N. S. 259 ; it seems also by the same case as reported in 15 Jur. 4, that a claim cannot be taken pro tonfesso, as there are no provisions for that purpose, and see Lloyd v. , 14 Jur. 568. Payment of money into Court and production of documents will be ordered on an interlocutory application founded upon admissions con- tained in the defendant's affidavit, Jefferies v. Biggs, 20 Law J. 638. The Court will annointa receiver, Chalk v. Sanders, 14 Jur. 847, and see Scurrah ». Scurralir«ft^ 8?4 T aTfBough no t pray e d for by the claim, Bichford v. Chalker, ib. 997 ; and a' receiver'will be appointed pendente lite, upon a claim filed for that purpose, Anderson v. Guichard; but such a suit should not be brought to a hearing, ib. An i o ji iTO ripn nfty""'^ be obtained on a claim, Moore v. Saintey, 14 Jur. 668 j Holden?. Class XXTV.] claims. 151 orders of the Court made in such proceedings are to be en- 22 April, 1850. forced in the same manner and by the same process as orders of the Court made in a cause upon bill filed. Writs of summons (a) are, as to the number of defend- . Oid. x. ants to be named therein, as to the mode of service thereof, mons. and as to the time and mode of entering appearances thereto, to be subject to the same rules as writs of subpoena to appear to and answer bills (6). The time for shoy ving c ause named in any writ of sum- Ord. xi. , ———————--— -~~~-~-'™-=» _ Time for showingr mons (a) (except a writ or summons to revive or carry on pro- cause, ceediftgsjt is to be fourteen days. at the lea st a fter serv ice of the'^yiil, but by consent of the parties and with leave of the Court, cause may be shown on any earlierda2\. At the time for showing cause named in the writ or on the Ord. xii. , • ^. 1 , r^" — ~'' f Defendant to seal o r motionjday then next lollowmg, or so soon after as show cause the ease can be heard, "tHe defendant having previously "^*"'* '^ *""" a ppeared , is personally or by counsel to show cause hi court Chalcraft, tfc. 846 ; and see Carmichael v. Ogilby, 19 Law J. 424. A defendant may disclaim at the hearing wit hout a n affidavit of the fact, LaaDroke e. iiieaden, 16 Jgr.~eg(n~a'M iiiaytafce- advantage of the S tatute o f liiitiitat.inna w ithout pleadingjt, but if the'^rfflrMTtriaken b^''5ni'pi'fl3"tlli; dikim wUng"ardafecrtb ' stand overtn-Qfaer to enable ■Rtin'tirnreet the case, Sneed i>. Sneed, ib. 7?.' AfCST an issue has been directed a nd aft erwards abandoned by one ot tne parties, tllfi"pi^opdt ' course is lor a motion to De made to t akeTKgT^uS"pro confesso a gainst that party, upon which an order will be made, the eltect ot wnich Will be that the claim will be placed m the same situation as if the issue had been tried and found in favour o f the party moving, Hartland d. Dan- cox, 21 Law J. liy, (o) See note (o), ante, p. 148. (6) As to the mode of service of writs of subpoena to appear and answer, see ante, p. 52, n. (d). Writs of subpoena to appear and answer, and writs of summons upon claims are now abolished, 15 & 16 Vict. c. 86, s. 2, ante, p. 51, and in lieu of service thereof, the defendant is to be served with^ajgrinted biU or clam^si. s. 3, and such service is' to be eflScteHln'tSe^^eTlfanner'arservice'of a writ of subpoena to ap- pear and answer, except that it is not necessary to produce the original bill or claim, ib. s. 5, ante, p. 52. But the Lord Chancellor is empowered to direct these provisions to be discontinued, and the practice as to issuing and service of writs of subpoena and summons to be revived, ib. s. 9, ante, p. 50, n. (a). Service of a writ of summons was allowed to be substituted In the same way as a writ of subpoena, Carwardine v. Wishlade, 15 Jur. 913 ; but see Smith v. Corles, 15 Jur. 4. For the cases in which substituted ser- vice of subpoenas is allowed, see ante, p. 54, n. (o). Service of writs of summons out of the jurisdiction was allowed in the same manner in! Simson v. Muckleston, 14 Jur. 543 ; M'Coy v. Cross, ib. 613 j and Thomas v. Colswortb, 14 Bea. 208 ; and as to service of subpoenas out of the jurisdiction, see ante, p. 53, note. Where some of the par- ties interested are out of the jurisdiction they need not be served, but the decree may be taken as on a bill in the like case, James v. Bartley, 14 Jur. 847. 152 [Class XXIV. 6 June, 1850. (Extract.) Notice as to set- ting down and hearing claims and motions. 22 April, 1850. if he can (and if ^necessary by_aflSdavit), why such relief as is claimed by the claim should not be had against him. Every claim i iled under the Orders of Court of 22nd April, ] 850, is to be set down fbr_hearing with the Regis- trar (a), which will be 'done^( without fee) as soon as the,Ji&t^^ jo£-*iivnmeft9 has been served on the defendant, or (if more than one) on all the ^defendants, up on productio n to the Re gistrar by the plaintiff or \ns solicitor, of a certificate from the clerk of Records and Writs of the filing'^of sucB claim. —————— ——I ' ^* Every claim so set down will be heard in rotation in the respective Courts of the Master of the Rolls and Vice-Chan- cellors on such days as they shall respectively appoint (a). All moti ons arising out of claims filed are to be made on the ge neral seal a nd motion 'days? At the time appointed for showing cause, upon the motion of the plaintiff, and on hearing the claim, and what may be alleged on the part of the defendant (6), or upon reading a certificate of the appearance being entered by the defendant, or an affidavit of the writ of summons being duly served (c), 22 April, 1850. Ord. XIII. Order to be made. (o) And see notices of the 6th, 7th and 16th Novemher, 1850, 12 Bea. xxxi. to xxxiii. If a claim is not set down in the cause list pursuant to the regulations of the Court, proceedings under the order will be stayed. Dicker ii. Hugo, H Jur. 562. Claims may also be marked and heard as short claims in the same manner as short causes, see the notices above referred to ; and if a claim is set down as a short claim when it is not short, the party setting it down must pay the costs of the day, Waldron v. Sloper, 15 Jur. 187. (6) But e vidence is equally necessary a s in suits by bill, see Johns v. Mason, 9 Hare, '/.y, and a claim, a lTiTjou g h" unopposed, m ust be supported byagdaxifc-Lloy'^ "• — -,'l4 Jiir. AbbT; Hutchinson v. Taylor, lo. 846;" u nless the de fendant a ppears and does not dispute the claim, Slade v. Robinson, i6."^5. ' Asan ordinary rule,"claiiiSsTiay be decided upon evidence by afBdavit only, Smith ». Constant, 1 5 Jur. 97 ; but a contract, if disputed, must be produced and proved in the regular way, Marshall V. Davies, 14 Jur. 997 ; in like manner a will, Spickernell v. Hotham, 9 Hare, 73 ; and in an administration suit the probate or letters of ad- ministration must be produced, Beaumont v. James, 15 Jur. 714 ; but this will not be insisted upon if the defendant who is sworn to have them does not appear, Jones ». Swinford, 14 Jur. 568. If a husband and wife who have assigned the wife's share in a testator's estate, refuse to make the usual affidavit of no settlement, the fact may be proved by some other person, Rowland ». Oakley, ib. 845 ; and i f a fact is no t suffi- c iently proved, the judge will, in his discretion, direct the claim"t o stanJ" over wit li lib°'''^y '^" ail'' *" the evidence instead of dismissing It, SftlltU — - o. Uon'stant, supra. (c) Where the plaintiff did not appear, it was in one case held that the claim could not be dismissed without an affidavit of service, Rackham v. Cooper, 15 Jur. 870 ; but it is now considered that the certificate of the Class XXIV.] claims. 153 the Court may, if it shall think fit, make an order^ranting(fl!) 22 April, 1850. or refusing the felief claimed (6), or dire cting any accou nts or inquiries to be taken or made (e), or other proceedings to be had, for the purpose of ascertaining the plaintiff'sTifle to the relief claimed ; and further, the Court may direct such (if any) persons or classes of persons (d) as it shalTtKink neces- sary or~fil to be summoned or ordered t o appear as parties to the claim, or on any proceedings before the Master (e), with reference to any accounts or inquiries directed to be taken or made, or otherwise. Every order to be so made is to have the effect pf and may oid. xiv. be enforced as a decree or decretal order made in a suit com- ^°' ° "*"' menced by bill, and duly prosecuted to a hearing according to the present course of the Court (/). If, upon the application for any such order, or during any ora. xv. proceedings under any such order when made, it shall appear tmto be filed?"' to the Court that for the purposes of justice between the par- ties it is necessary or expedient that a bill should be filed, the Court may direct or authorize such bill to be filed, subject to such terms as to costs or otherwise as may be thought pro- per (g). defendant's appearance shows that he has been served, so that an affi- davit is unnecessary, Bell v. Hornby, 14 Bea. 439. (a) The Court granted the relief claimed without inquiries in Ison v. Coe, 14 Jur. 845. (A) See Penny ti. Penny, 9 Hare, 39. After decree in an administra- tion suit by bill the Court refused to make an administration order on a claim, but gave leave to apply if the decree was not prosecuted with due diligence. Dicker v. Hugo, 14 Jur, 562 j but after a suit by bill for a partition, in which no decree had been made, the Court refused to post- pone the hearing of a claim for a partition of part of the property. Brace v. Foulkes, 16 Jur. 738 ; nor would the Court stay the hearing of a claim for the execution of certain trusts, on the ground that a suit by bill was pending for the execution of the same trusts, and seeking some additional relief, Scott v. Lord Hastings, 9 Hare, 35. (c) For an instance of special inquiries directed, see Eccles v. Cheyne, 9 Hare, 219, and for cases in which the Court has refused to direct spe- cial inquiries, see Johns v. Mason, 9 Hare, 29 ; Penny ». Penny, ib. 39 ; and Gilpin ». Magee, 20 Law J. 639. (d) And the Court will direct inquiries as to the persons constituting a class, Smith v. Smith, 14 Jur. 846, and see Frith v. Humble, ib. 544 ; Brittain ». Kendall, ib. 846. (e) Seeonfe, p. 121, and note (6). (/) For the mode of enforcing decrees and orders, see Smith's Hand- book, 364. (g) The number of cases in which the Court has felt itself unable to deal satisfactorily with a matter by way of claim, and has left the parties to proceed by bill, is small. Report of Chancery Commissioners of 27 th January, 1852, p, 13. In Jackson v. Grant, 15 Jur. 72, it was intimated Ord. XVI. Form of orders, Ord. XVII, Power of the Masters. 154 CLAIMS. [Class XXIV. 22April,1850. The orders made for granting relief in the several cases to which the forms set forth in schedule A. are applicable may, if the Court thinks fit, be in the form and to the effect set forth in schedule C. (a) as applicable to the particular case, with such variations as circumstances may require (6). Under every order of reference to the Master (c) under these orders, the Master (c) is, unless the Court otherwise orders, to be at liberty to cause the parties to be examined on inter- rogatories, and to produce deeds, books, papers, and writings, as he shall think fit, and to cause advertisements for creditors, and if he shall think it necessary, but not otherwise, for heirs, and next of kin, or other unascertained persons, and the re- presentatives of such as may be dead, to be published in the usual forms, or otherwise, as the circumstances of the case may require ; and in such advertisements to appoint a time within which such persons are to come in and prove their claims, and within which time, unless they so come in, they are to be excluded the benefit of the order ; and in taking any account of a deceased's personal estate under any such order of reference, the Master (c) is to inquire and state to the Court what part, if any, of the deceased's personal estate is outstanding or undisposed of, and is also to compute inter- est on the deceased's debts, as to such of them as carry interest after the rate they respectively carry, and as to all others after the rate of four per cent, per annum from the date of the order, and to compute interest on legacies after the rate of four per cent, per annum from the end of one year after the deceased's death, unless any other time of pay- ment or rate of interest is directed by the will, but in that case according to the will ; and under every order whereby any property is ordered to be sold with the approbation of the Master (c), the same is to be sold to the best purchaser by the Court that where there was a conflict of affidavits, the proper course was to file a bill in the first instance ; but that rule was qualified in Smith v. Constant, ib. 97 ; see further, Johns ». Mason, 9 Hare, 29 j Penny v. Penny, ib. 39 ; Pawsey v. Barnes, 15 Jur. 943, and Gilpin v. Magee, 20 Law J. 639. Since the 15 & 16 Vict. c. 86, the Court will, in a proper case, order witnesses to be examined vlvd voce rather than put the parties to the expense and delay of filing a bill, Wilkinson v. Stringer, 16 Jur. 1033. (a ) See post, p. 169. (6) The evidence should be entered, see Hubbard v. Child, 14 Jur. 541. (c) See ante, note (6), p. 121. Class XXIV.] claims. 155 that can be got for the same, to be allowed by the Master (a), 22 April, 1850. wherein all proper parties are to join as the Master (a) shall ~ direct (b). If upon the proceedings before the Master (a) under any oid. xviii. such order it shall appear to the Master (a) that some per- ttes Tte^im"' sons, not already parties, ought to be enabled to attend the ™™=*' proceedings before him, he is to be at liberty to certify the same ; and upon the production of such certificate to the Record and Writ Clerk, the plaintiff may sue out a writ of summons requiring the persons named in such certificate to appear to the writ, and such persons are thereupon to be named and treated as defendants to the suit (c). Such writ of summons under an order or Master's (a) cer- ord. xix. tificate, is to be in the form and to the effect in that behalf fu"" ^s""'' set forth in No. 2 (d) of schedule B., with such variations as circumstances may require. The persons so summoned having appeared, are to be at ord.xx. ^erty to attend, and to be entitled to notice of the proceed- attend proc»ed- ings before the Master (a) under the oyder of reference, "^^' subject to such directions as the Master (a) ni% make in respect thereof. Where any proceedings originally commenced by claim and ord. xxi. writ of summons (e) shall by the death of parties, or other- a'^™™'- ^ wise, have become abated or defective for want of parties, and no new relief is sought, a claim to revive or carry on the suit may be filed (_/) ; and such claim is to be in the form set forth in No. 12 (g) of schedule A. The party claiming simply to revive or carry on proceed- ord. xxii. ings may sue out a writ of summons requiring the defendant ^^_™°"* '° ''' (a) See ante, note (6), p. 121. (b) For the present course of proceeding at chambers, see titles " Proceedings in the Judges' Chambers," ante. Class XVII., and "Pro- ceedings in the Masters' Offices," Class XVIII. (c) Incumbrancers may appear before the Master under this order. Brook V. Biddall, 15 Jur. 762. Service of the writ of summons under this order may be substituted, Baker v, Anthony, 14 Bea. 26 ; and as to substituted service generally, see ante, p. 54, note (o), and p. 151, note (li). (d) See post, p. 167. (e) See ante, p. 148, note (o). (/ ) A claim cannot be filed to carry on proceedings in a suit com- menced by bill. Carter v. Smith, 14 Jur. 518. For the new practice in cases of revivor and supplement (which is applicable to suits by claim as well as to suits by bill, Martin ». Hadlow, 16 Jur. 964 ; Yate v. Light- head, ib.), see ante. Class XXI. /v, I3i^a4~^4^^: {g) See post, p. 166. 156 CLAIMS. [Class XXIV. 22 April, 1850. Ord. XXIII. Form of sum- mons. Old. XXIV. Caveat against Ord. XXV. Supplemeutal re- Uef, <^ ^ 'fiJidt ■O^. Ord. XXVI. Su{)plemental claim by leaTe. thereto to appear to the writ, and to show cause, if he can, why the proceedings should not be revived or carried on (a). Such writ of summons is to be in the form and to the effect in that behalf set forth in No. 3(6) of schedule B,, with such variations as circumstances may require (a). If any defendant to any such writ is desirous of showing cause why the proceedings should not be revived or carried on, he is to appear and to file a caveat against such revivor or carrying on in the Record and Writ Clerk's Office, in the form set forth in No. 4 (6) of schedule B., and to give notice thereof in writing to the opposite party. If no such caveat be filed within eight days from the time limited for his appear- ance to the writ, then at the expiration of such eight days the proceedings are to be revived, and may be carried on without any order for the purpose ; and a certificate of the Record and Writ Clerk, that no caveat has been filed within the time limited is to be a sufficient authority for the Master (c) to proceed. But if any such caveat be filed, tne proceedings are not to be revived or carried on without an order to be obtained on motion, of which due notice is to be given {a). Where any further or supplemental relief is sought, and such supplemental relief is^sucTTa sls^ provided for in any of the cases enumerated under Order I. (d), a supplemental claim may be filed in such of the forms set forth uT sctedule A7(e) as is applicable to the case (a) — (f). If such supplemental relief is not such as is provided for by Order XXV., a supplemental claim may be filed stating shortly the nature of the plaintiff's case, and the supplemental relief claimed, but the leave of the Court is to be obtained previously to the filing thereof, upon an ex-parte application foFtlie'purpos^ in the liianner specified in Order VI. (g). (a) See note (/), ante, p. 155. (&) See post, p. 168. (c) See note (6); ante, p. 121. (ri) Ante, pp. 144 to 147. (e) Past, p. 158. (/) Where a legatee had obtained an order on a claim for payment of his legacy with interest from a certain time, and afterwards discovered that he was entitled to interest from a previous date, it was held that a claim might be filed for such additional interest, but that leave was ne- cessary, Matthews v. Pincomb, 20 Law J. 395. (g) For Order 6, see anle, p. 148. Leave was given to file a supple- Class XXIV.] claims. 157 A writ of summons may be sued out and other proceedings 22April,1850. may be taken upon a supplemental claim in like manner as ord. xxvii. . _ . . 1 1 . / N Summons on sup- upon an origmal claim (a). piementai claim. Guardians ad lite m to defend may be appointed for infants ord. xxviii. — ™- — — * ^^ — _ _^_,_^ ^ ^ I , Guardians ad or persons or weak or unsound mind, against whom any writ litem. of summons (a) may have issued under these orders, in like manner as guardians ad litem to answer and defend are now appointed in suits on bills filed (6). Any order or proceeding made, or purporting to be made, Ord. xxix. „\ f u J- 1 J -1 ' Discharging or- m pursuance ol these orders, may be discharged, varied, or ders and acceie- set aside on motion (c), and any order for accelerating pro- ings. ceedings may be made by consent. Any order o f the Master of the RoUs or of any of the Vice- Ord. xxx. Chancellors may be discharged or varied by the Lord Chan- " i^ cellor on motion (c ). If any of the cases enumerated in Order I. (d) involve or Ord. xxxi. are attended by such special circumstances, affecting either cumstaiTces'biii the estate or the personal conduct of the defendant as to ™*'' require special relief, the plaintiff is at liberty to seek his re- lief by bill as if these orders had not been made. If at any time after these orders come into operation, any Ord. xxxii. suit for any of the purposes to which the forms set forth in proceedtog'by " schedule A. (d) are applicable,'shall be commenced by bill and ciaim.^under prosecuted to a hearing in the usual course, and upon the ">sse orders. hearing it s hall appear to the C ourt that an order to the effect of the decree then made, or an order equally ben eficial to the plaintiff might have been obtained upon a proceeding by &ummans^(a).-in the manner authorized by these orders, the Court may order that the inc reased costs w hich have been oc casioned by th e proceeding Dy bill oeyoiTd the amount of mental claim to render eflfectlve proceedings upon an origfinal claim which had been carried on after an abatement, Naylor v, Robson, 21 Law J. 280 i and also to bring representatives of deceased parties before the Court, Gray v. Rusbridger, 16 Jur. 682 j but now see the title " Re- vivor and Supplement," ante, Class XXI. (o) But see ante, p. 148, note (a). (6) A guardian ad litem will under this order be appointed by the Court, on production of an affidavit of the fitness of the party proposed, White V. Kimpton, 14 Jur. 845. (c) But the practice on an appeal f rom a decretal ord er on_a claim is the same as on an anneal trom a decree in a sdit by bill, Sims v. HelHflg, 16 .rur.899. ((/) Ante, pp. 144 to 147. 158 CLAIMS. [Class XXIV. 22 April, 1850. costs which would have been sustained in the proceeding by summons (a) shall be borne and paid by the plaintiff. _ SCHEDULE (A)(6). Forms of Claim. Forms of claim. 1. Bt/ a Creditor upon the Estate of a deceased Person, seeking Pay- ment of his Debt out of the Deceased's Personal Assets (c). In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming Aim], or, [Master of the Rolls]. Between A. B., Plaintiff, £. F., Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B. states, that C. D., late of — — , deceased, was, at the time of his death, and that his estate still is, justly indebted to him the said A. B. in the sum of £ for goods sold and delivered by the said A. B. to the said C. D, [or otherwise, as the case may he, or, if the debt is secured by any written instrument, state the date and nature thereof] And that the said C. D. died in or about the mouth of , and that the above-named defendant E. F. is the executor [or administrator] of the said C. D., and that the said debt hath not been paid ; and there- fore the said A. B. claims to be paid the said deb t or sum of £ with his costs pf Jbjssuit, and i n default thereof he claims to have the p ersonal estate of the said C. D. administered in this Court on behalf o f him self and all other the unsatisfied creditors of the said CD ., and for that purpose 'that all proper directions may be given and accounts tak en. Note. — This form may be varied, according to the circumstances of the case, where the claimant is not the original creditor, but has become interested in or entitled to the debt, in which case the character in which he claims is to be stated. (a) But see ante, p. 148, n. (o). (6) See Order 2, ante, p. 147. (c) Where the claim relates to real estate also, see Ferris v. Ferris, 14 Jur. 845, and Spickernell v. HoflBni;-^-Hare-,'fft Class XXIV.] claims. 159 2. Bj/ a Le^ateejmder the Will of any d eceased Person, seeking Pay- 22 April, 1850. ment or Delivery of his Legacy out of the Testator's Personal Foims of claim. Assets. ■~— — In chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B., of , the ahove-named plaintiff. The said A. B. states, that he is a legatee to the amount of £ , under the will, dated the day of , of , late of , deceased, who died on the day of , and that the above-named C. D. is the executor of the said , and that the said legacy of £ , together with the interest thereon after the rate of £ per cent, per annum from the day of [iAe day mentioned in the will for the pay- ment of the legacy, or the expiration of twelve calendar months after the said testator's death"], is now due and owing to him the said A, 6., [or still unpaid or unsatisfied,] [or unappropriated or unsecured,] and the said A. B. therefore c laims to be paid [or satisfed] t he said legacy and interest, [o r to have the said legacy and interest appropriated and secured.] and i n default thereo f he claims to have the personal estate of the said administered in this^ourt,pn Jaehalf of himself and all other the legatees of the said , and for that purpose that all proper directions may be given and accounts taken. Note. — This form may be varied, according to the circumstances of the case, where the legacy is an annuity, or specific, or where the plaintiff is not the legatee, but has become entitled to or interested in the legacy, in which case the character in which the plaintiff claims is to be stated. 3. By a R esiduary Legate e, or any of several Residuary Legatees, of any deceased Person, seeking an Account of the Residue, and Pay- ment orr Appropriation of his Share therein. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B. states that he is the residuary legatee [or one of the residuary 160 CLAIMS. [Class XXIV. 22 April, 1850. legatees] under the will, dated the day of , of , late of Forms of claim. j who died on the day of , and that the ahove named defendant C. D. is the executor of the said ——, and that the said C. D. hath not paid to the said A. B. the [or his share of the'] residuary personal estate of the said testator ; the said A. B. t herefore claims to have the personal estate o f the sai d - — — admi nistered m this Court, and to have his costs of this suit , and for that purpose fESTal! proper" directions may be given and accounts taken. *— — . Note. — This form may he varied according to the circumstances of the case, where the plaintiff is not the residuary legatee, but has become entitled to or interested in the residue, in which case the character in which he claims is to be stated. 4. By the Person, or any of the Persons, entitled to the Personal Esta te of any "Person who may have died intestate, and seeking an Account of such Personal Estate and Payment of his Share thereof. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him"], or, [Master of the. Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B. states that he is the next of kin [or one of the next of kin], according to the statutes for the distribution of the personal estate of intestates, of , late of , who died ou the day of in- testate ; and that the said A. B. is entitled to [or to a share of] the personal estate of the said deceased, and that the said defendant C. D. is the administrator of the personal estate of the said , and that the said C. D. has not accounted for or paid to the said A. B. the [or the said A. B.'s share of the] personal estate of the said intestate. The said A. B. therefore claims to have the personal estate of the said administered in this Court, and to have his costs of this suit, and for that purpose that all proper directions may be given and accounts taken. Class XXIV.] claims. 161 5. By the Executor or Administrator of a deceased Person, claiming 22 April, 1850. to have the Personal Esta te of the Testator administered under Fonns of claim. the Direction of the Court (a). In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B., of . The said A. B. states, that he is the executor [or administratorl of E. F., late of , but now deceased, who departed this life on or about , and that he hath possessed the personal estate of the said E. P*. to some amount, and that he is wil- ling and desirous to account for the same, and that the whole of the personal estate of the said E. F. should be duly administered in this Court for the benefit of all persons interested therein or entitled there- to ; and that C. D. is interested in the said personal estate as one of the next of kin [or residuary legatee'] of the said E. P., and the said This form may be ATji- 1 1 ^ o J .... varied according A. a. claims to have the personal estate of the said h. t. apphed m to circumstances a due course of administration 'under the direction of this Court, and tiff?co-ex^cu?or in the presence of the said C. D.and^uch^JtSer'persons interested in the said estate as this Court may be pleased to direct, or that the said C. D. may show good cause to the contrary : And that the costs of this suit may be provided for ; and for these purposes, that all proper direc- tions may be given and accounts taken. or co-administra- tor is a defendant. 6. Sj/ a legal or equitable Mortgagee o r Person entitled to a Lien a s Secu rity for a De bt, seeking Foreclosure or Sale, or otherwise to enforce his S ecurity. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him"], or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B. states, that under or by virtue of an indenture [or other docu- (a) For the form of a claim by executors and devisees in trust for the administration of the real and personal estate, and to establish the will against the heir at law, see Rickford v. Young, 14 Jur. 428. 162 CLATMS, [ClASsXXrV. 22 April, 1850. merit'], dated the day of , and made between [^parties]. Forms of claim L"'"^ " transfer thereof made by indenture dated the day of , The names only ""'' made between \_parties],'] the said A. B. is a mortgagee [or an of the parties are equitable mortgagee] of [or is entitled to a lien upon] certain freehold the substance or property [or copyhold, or leasehold, or other property, as the case may me^nt." " °™" be], therein comprised, for securing the sum of pounds and in- Ifthereisnowrit- terest, and that the time for payment thereof has elapsed; and that ieferred?ofthe ° ^^ above-named C. D. is entitled to the equity of redemption of the desSed MM-^ ^^^^ mortgaged premises [or the premises subject to such lien], and the rally. said A. B. therefore claims to be pa i d the said sum of pounds and i nterest, and th e_co3ts o f this suit, and in default th ereof he claims to foreclose the equity of redemption of the the said mortgaged premises [or to have the said mortgaged premises sold, or to have the premises subject to such lien sold, as the case may be], and the p roduce thereof applied in or towards pay ment of his said debt and costs, a nd for that purpose to have all proper directions given and accounts taken. 7. By a Person e ntitled to the Redemption of any legal or equitable Mortgage, or any Lien, seeking to redeem the same. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Between A, B., Plaintiff. C. D., Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B. states, that under or by virtue of an indenture [or other docu- ment], dated the day of and made between [parties], [and the assurances herein-after mentioned, that is to say, an indenture dated the day of , the will of , dated the day of ], the said A. B. is entitled to the equity of redemption of certain freehold property [or copyhold, or leasehold, or other property, as the case may be,] therein comprised, which was originally mortgaged [or pledged] for securing the sum of pounds and interest ; and that the above- named defendant C. D. is now, by virtue of the said indenture, dated the day of [and of subsequent assurances], the mortgagee of the said property [or holder of the said lien], and entitled to the prin- cipal money and interest remaining due upon the said mortgage [or lien] ; and he believes that the amount of principal money and inte- rest now due upon the said mortgage [or lien] is the sum of Class XXIV.] claims. 163 pounds, or thereabouts ; and that the said A^^B^ath made or caused 22 April, 1850. to be made an application to the sai3"C. D. to receive the said sum of Foims of claim, pounds, an3~any costs justly^yabTe to hilll, and to feCOHV^y'td the said A. B. the said mortgaged property [or property m^ect ^o the said liert}, upon payment thereof, and of any costs due to him in re- spect of the said security, but that the said C. D, has not so done ; and therefore the said A. B. claims to be entitled to redeem the said mortgaged property [or property subject' to the said lieri], and to hav e the same r econve yed [or delivered up'] to him, upon payment of the" principal money and in terest and costs due and owing upon the said mortgage [or lieri], and for that purpose" to have all proper directions given and accounts taken. 8. By a Person entitled to the specific Performance of an Agreement for the Sale or Purchase of any Property, seeking such specific Performance. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B., of , the above-named plaintiff. The said A, B. states, that by an agreement dated the day of and signed by the above-named defendant C. D., he, the said C. D., con- tracted to buy of him [or to sell to him] certain freehold property [or copyhold, leasehold, or other property, as the case may be], therein de- scribed or referred to, for the sum of pounds; and that he has made or caused to be made an application to the s aid C. D. specifically to perfOTm the said agreementonTuTpart, hut that he has not done so,^ and the said"A. B. therefore claims to^e entitled to a specific perform- ance of the said agreement, and to have his costs of this suit, and lor that purpose to have all proper directions given. And he hereby offers specifically to perform the same on his part. M 2 164 CLAIMS, [Class XXIV. 22 April, 1 850. 9. By a Person entitled to anAccountofihe Dealings and Transactions Forms of claim. of a Partnership dissolved or expired, seeking such Account. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the EoUs]. Between A. B., Plaintiffl C. D., Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B states, that from the day of down to the day of , he and the above-named C. D. carried on the business of in copartnership, under certain articles of copartnership, dated the day of —. — , and made between \_parties'] [or without ar- ticles, as the case may ie] ; and he saith that the said partnership was dissolved \i> r expired, as the case may be,"] on the day of , and he c laims an acconnt of the partnership dealings and transactions between him and the said C. D., and to ha ve the affa irs and business of the said partnership w ound up and settled under the direction of this Court, and for that purpose that all proper directions may be given and accounts taken. 10. By a Person entitled to an e quitable Estate or Interest , and claim- ing to use the Name of his Trustee in prosecuting an /Action, for his o wn sole benefit. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B. states, that under an indenture dated the day of , and made between [parties'], he is entitled to an equitable estate or interest in certain property therein described or referred to, and that the above-named defendant is a trustee for him of such property, and that being desirous to prosecute an action at law against in re- Class XXIV.] claims. 165 spect of such "property, he has made or caused to be made an appli- 22 April, 1850. cation to the said defendant to allow him to bring such action in his poims of claim, name, and has oflfered to indem ni f y \ }m ap ;ainat the costs of such action, but that the said defendant has refused or neglected to allow his name to be used for that purpose ; and the said A. B. therefore claims toTjranowed to prosecute the said action in the name of the s aid defendant,_a nd hereby off ers to indemnify him against the costs of such action. 11. By a Person entitled to have a new Tru stee appointed in a Case where there is no Power in the Instrument creating the Trust to appoint new TrSSiees^r when the Power cannot be ex ercised, and seeking to appoint a new Trustee. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him'], or, [Master of the Rolls}. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B., of , the above-named plauitiff. The said A. B. states, that under an indenture dated the day of , and made between [^parties] [or will of , or other document, as the case may he\, he the said A. B. is interested in certain trust pro- perty therein mentioned or referred to, and that the above-named de- fendant C. D. is the present trustee of such property \or is the real or personal representative of the last surviving trustee of such property, as the case may be] ; and that there is no power in the said indenture [or will or other document] t o apBpin t new trustees [or^that the power in the said indenture [or other document'] to appoint new trustees can- not be executed^ ; and the said A. B. therefore claims to have new trus'tee's'appointed of the said trust property in the place of [or to act in conjunction with] the said C. D. 166 , t [Class XXIV. 22 April, 1850. 12. By a Part y entiti '.d to revive or to carry on a Suit, and seeking to Forms of claim. I ivive or carry on the Suit. In Chancery. '[Lord Chancellor, Vice-Chlncellor of England, or Vice-Chancellor, Twrajng him\. As in I or, original ■ [Master If the Rolls]. ' claim. \ Between A, B., PlaintiiF, & C. D., Defendant, and Title \f this claim. Between G. H., Plaintiff, & K. L., Defendant. The claim of G. H., dt , the ahove-named plaintiff. The said G. H. states, that the said A. B. filed his claim in this suit on or about ; that on orlabout the said A. B. died [or became bankrupt or insolvent'] ; tlat the said suit, and all proceedings there- under, have thereby become abated [or defective^ ; that the said G. H. has become and is the executor [or administrator, or the assignee of the estate and effects'] of tie said A, B., and he claims to be entitled to revive the said suit and Vproceedings [or to he entitled to carry on the said suit and proceedings], and to have all such relief as the said A. B. would have been entitled to if he had lived [or had not become bankrupt or imohent] ; or tthat the said C. D. ought to show good cause to the contrary. Note. — This form may il applied to any case to which Order XXI. (a) applies, and may be varied according to the circumstances on each case. Forms of sum- mons. ^^ SCHEDULE (B). (No. 1.) Form pf Writ of Summons on Claim (b). Victoria, by the grace of God, of the united kingdom of Great Britain and Ireland Queen, Defender of the Faith, to C. D. greeting : Whereas A. B. hath caused to be filed with the Record and Writ Clerks of our High Court of Chancery, a claim as follows [claim to be (a) See ante, p. 155, and note (/). (6) See Order 5, ante, p. 148, and note (o). Class XXIV.] claims. 167 set forth verbatim]; therefore we command you [and every of you, 22 April, 1850. where there is more than one defendant], that within eight days after Forms of sum- the service of this writ on you, exclusive of the day of such service, ™°"*' laying all excuses and other matters aside, you do cause an appear- ance to this writ to be entered for you in our High Court of Chancery; and further, that on the fourteenth day after the service of this writ or on the seal or motion day then next following, you do, personally or by your counsel, appear in the Court of our Lord Chancellor before the Vice-Chancellor of England {or the Vice-Chancellor, naming him], [or in the Court of our Master of the Rolls], at ten of the clock in the forenoon, and then and there show cause, if you can, why the said A. B. should not have such relief against you as is claimed by the said claim, or why such order as shall be just with reference to the claim should not be made*; and hereof fail not at your peril. Witness oui'self at Westminster, the day of , in the year of our reign, [ The following memorandum to be placed at the foot.] Appearance to be entered at the Record and Writ Clerks' Office in Chancery Lane, London ; and if you neglect to enter your appear" ance, and either personally or by your counsel to appear in the High Court of Chancery, at the place and on the day and hour above men- tioned, you will be subject to such order as the Court may think fit to make against you in your absence for payment or satisfaction of the said claim, or as the nature and circumstances of the case may require. SCHEDULE (B). (No. 2) (a). Victoria, &c., to , greeting. Whereas A. B. hath caused to he filed a claim against D., claiming, &c. [set forth only the claim, without the introductory statement]. And whereas by an order made in the said cause dated the day of it was ordered And whereas Mr. , the Master to whom the said order stands referred, hath, by his certificate, dated the day of , certified to us that you ought to be a party to the said cause, and to be served with a writ of summons therein; therefore we command you, that within eight days after service of this writ on you, exclusive of the day of such service, you do cause an appearance to be entered for you in our High Court of Chancery, and that you do attend the proceed- ings in the said cause as a party defendant thereto, and do and ob- serve such things as are by our said Court ordered and directed in the said cause: and herein fail not. Witness, &c. (a) See Order 19, ante, p. 155. 168 22 April, 1850. Forms of sum^ mons. CLAIMS. [Class XXIV. [ The following memorandum to be placed at the foot.'] Appearance to be entered at the Record and Writ Clerks' Office, Chancery Lane, London ; and If you neglect to appear, the proceed- ings vpill be carried on without further notice to you. SCHEDULE (B). (No. 3) (a). Victoria, &c., to , greeting. Whereas A. B. hath caused to he filed a claim against C. D., claim- ing, &c. [set fojrth the claim cerAaiim.] And whereas the said A. B. hath departed this life, \or become bankrupt'] [or as the case may be,] whereby the said suit hath become abated [or defective], and G. H. is now the legal personal represent- ative [or assignee] of the said A. B., and as such claims to he entitled to revive [or cany on] the said suit ; therefore we command you, the said C. D., that within eight days after the service of this writ on you, exclusive of the day of such service, you do cause an appearance to be entered for you in our High Court of Chancery, and further, that within sixteen days after such service you do show good cause, if you can, why the suit, and all proceedings thereunder, sliould not be re- vived against you, and be in the same plight and condition as the same were in at the time of the said abatement thereof [or why the suit and proceedings should not be carried on against you as claimed]. Witness, &c. [The following memorandum to be placed at the foot.] Appearance to be entered at the Record and Writ Clerks' Office in Chancery Lane, London ; and if you desire to show cause, you are to enter a caveat at the same office within the time limited, otherwise the suit will stand revived, or may be carried on, without further order. Form of caveat. SCHEDULE (B). (No. 4.) Form of Caveat against Rev'ivor (6). Between A. B., Plaintiffi C. D., Defendant. And between G. H., Plaintiff K. L., Defendant. The said K. L. objects to the suit in the plaintiff's claim mentioned being revived [or carried on] against him in the manner claimed by the plaintiff. (o) See Order 23, ante, p. 156. (6) See Order 24, ante, p. 156. Class XXIV.J claims. 169 SCHEDULE (C)(a). 1. Form of Order for Payment of a Deht or Legacy. 22 April, 185). In Chancery. Fonns of orders. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming Aim], or, [Master of the Rolls]. Bate. Between A. B., Plaintiff. C. D., Defendant. Upon motion this day made unto this Court by Mr. , of coun- sel for the plaintiff) and upon hearing Mr. , of counsel for the defendant [or upon reading a certificate of an appearance having been entered by the defendant^, [or upon hearing an affidavit of service upon the defendant of the writ of summons issued in this cause], and upon reading the claim filed in this cause on the day of [and an affidavit of filed in this cause], \or the defendant by his counsel admitting assets of the testator or intestate in the said claim nameS], this Court doth order that the defendant do, within a month after ser- vice upon him of this order, pay to the plaintiff the sum of £ , together with interest thereon, at the rate of £ per cent, per annum, from the day of to the time of such payment, to- gether with the costs of this suit, to be taxed by the Taxing Master in rotation. 2. Form of Order on Fxecutor or Administrator to account, on Claim by a Creditor of Testator or Intestate. In Chancery, [Lord Chancellor, Vice Chancellor of England, or Vice-Chancellor, naming him'], or, [Master of the Rolls]. Date. Between A. B., Plaintiff. C. D., Defendant. Upon motion, &c. [as in Form No. 1] this Court doth declare that all persons who are creditors of the said testator or intestate are en- (o) See Order 16, ante, p. 154. 170 CLAIMS. [Class XXIV. 22 April, 1850. titled to the benefit of this order, and it ia ordered that it be referred Forms of orders, to the Master of this Court in rotation to take an account of what 18 due to the plaintiff, and all other the creditors of , deceased, the testator [or intestate] in the plaiutiflf's claim named, and of his funeral expenses : And it is ordered, that the Master do take an account of the personal estate of the said testator [or intestate} come to the hands of the said defendant, his executor [or administrator'], or to the hands of any other person or persons by his order or for his use : And it is ordered, that the said testator's [or intestate'sl personal estate be ap- plied in payment of his debts and funeral expenses in a due course of administration ; and this Court doth reserve the consideration of all further directions, and of the costs of this suit, until after the said Master shall have made his report. 3. Form of Order to account, on Claim by a Legatee. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him'], or, [Master of the Rolls]. Date. Between A. B., a legatee of , j piainjig- deceased . > CD. . . Defendant. Upon motion, &c. [as in Form No. 1] this Court doth declare, that all persons who are legatees of the said testator are entitled to the benefit of this order. And it is ordered, that it be referred to the Master of this Court in rotation to take an acccount of the personal estate not specifically bequeathed of deceased, the testator in the plaintiff's claim named, come to the hands of the defendant, or to the hands of any other person or persons by his order, or for his use : And it is ordered, that the said Master do take an account of the said testator's debts, funeral expenses,~Bnd-of the legacies given by his will : And it is ordered, that the said testator's said personal estate be applied in payment of his funeral expenses and debts in a due course of administration, and then in payment of his legacies. And this Court doth reserve the consideration of all further directions, and of the costs of this suit, until after the said Master shall have made his report. Class XXIV.] claims. 171 4. Form of Order to account, on Claim h/ a Residuari/ Legatee, or 22 April, 1850. one of several Residuary Legatees. Forms of orders. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming Aim], or, [Master of the Rolls]. Date. Between A. B., a residuary legatee j p, . ..~ of , deceased 5 CD. . . Defendant. Upon motion, &c. [as in Form No. I] this Court doth declare, that all the residuary legatees named or described in the will of , de- ceased, the testator named in the plaintiff's claim, are entitled to the benefit of this order, and to attend the proceedings under the same before the Master ; and it is referred to the Master to inquire and state to the Court who were the residuary legatees of the testator living at the time of his death, and whether any of them are since dead, and if dead who is or are their legal personal representative or representatives ; and if the Master shall find that all such residuary legatees, or their legal personal representatives (a), have been duly served with writs of summons, he is to proceed to take an accounti &c. [as in Net. 3, to the end}. 5. Form (f Order to account, on Claim hy the next of Kin, or one of the next of Kin, of an Intestate. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him}, or, [Master of the Rolls]. Date. Between A. B., Plaintiff. C. D., Defendant. Upon motion, &c. [as in Form No. 1] this Court doth declare, that all the next of kin, according to the statutes of distribution, of , (o) For the new practice as to making co-residuary legatees, and other persons having concurrent interests, parties to suits, see ante, p. 40, 172 CLAIMS. [Class XXIV. 22 April, 1850. the intestate named in the plaintiff's claim, are entitled to the benefit Fonns of orders, of this order, and to attend the proceedings before the Master under the same ; and it is referred to the Master of this Court in rotation to inquire and state to the Court who were the next of kin, according to the statutes of distribution, of the said , living at the time of his decease, and whether any of them are since dead, and if dead, who is or are their legal personal representative or representatives ; and if the said Master shall find that such next of kin (a) have been duly served with writs of summons to attend the proceedings before him under this order, then it is ordered, that it be referred to the said Master to take an account of the said intestate's personal estate [usual accounts of personal estate, debts, andjunerd expenses, SfC, as in Form No. 3.] 6. Form of Order for Account of Personal Estate of a deceased Person, on the Claim of the Executor or Administrator, In Chancery. [Lord Chancellor, Vice- Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Date. B.etween A. B., Plaintiff. C. D., Defendant. Upon motion, &c. [as in Form No. 1 ] this Court doth declare, that all persons interested in the personal estate of the said testator [or intestate^ are entitled to the benefit of this order, and it is ordered that it be referred to the Master to take an account of the testator's [or intestate's'] personal estate possessed by the plaintiff or by any other person by his order or for his use, and also to take an account of the testator's [or intestate's'] funeral expenses, debts, and legacies ; and it is ordered, that such personal estate be applied in a due course of administration in payment of such funeral expenses, debts, and legacies; and any further directions which may be necessary are here- by reserved. Sic. (a) See note last page ; and for the proper form of order according to the present mode of proceeding, see De Balinhard v. Bullock, 9 Hare, App. 13. Class XXIV.] claims. 173 7. Form of Order of Foreclosure, on Claim by a legal or equitable 22 April, 1850. Mortgagee. Forms of "orderT In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him"], or, [Master of the Rolls]. Date. Between A. B., Plaintiff. C. D., Defendant. Upon motion, &c. [as in Form No. 1] this Court doth order, that it be referred to the Master of this Court in rotation to take an ac- count of what is due to the plaintiff for principal and interest on the mortgage [or equitable mortgage^ in the plaintiff 's claim mentioned : And it is ordered, that it be referred to the Taxing Master in rotation to tax the plaintiffhis costs of this suit : And upon the defendant pay- ing to the plaintiff what shall be reported due to him for principal and interest as aforesaid, together with the said costs when taxed, within six months after the said Master shall have made his report, at such time and place as the said Master shall appoint, it is ordered, that the plaintiff [do reconvey the mortgaged premises in the plaintiff's affidavit of claim mentioned, free and clear of all incumbrances done by him, or any claiming by, from, or under him, and"] do deliver up all deeds and writings in his custody or power relating thereto, upon oath, to the said defendant, or to whom he shall appoint ; but in default of the de- fendant paying unto the plaintiff such principal, interest, and costs as aforesaid by the time aforesaid, it is ordered, that the defendant [do stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the said mortgaged premises'] do convey to the plaintiff the premises comprised in the equitable mortgage in the plaintiff's affidavit of claim mentioned, iree and clear of all right, title, interest, and equity of redemption of, in, and to the said pre- mises ; and the Master is to settle the conveyance if the parties differ about the same. 174 CLAIMS, [Class XXIV. 22 April, 1850. 8. Form of Order of Sale, on Claim by a legal or equitable Mortgagee Forms of orders. "'" Person entitled to a Lien, In Chancery. [Lord Chancellor, Vice-Chanoellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Date. Between A. B., Plaintiff. C. D., Defendant. Upon motion, &c, [as in. Form No. 1] this Court doth order, that It be referred to the Master of this Court in rotation to take an ac- count of what is due to the plaintiff for principal and interest on the mortgage [or equitable mortgage or Hen] in the plaintiff's claim men- tioned : And it is ordered, that it be referred to the Taxing Master in rotation to tax the plaintiff his costs of this suit : And upon the defendant paying to the plaintiff what shall be reported due to him for principal and interest as aforesaid, together with the said costs, within six months after the said Master shall have made his report, at such time and place as the said Master shall appoint, it is ordered, that the plaintiff \do reconvey the mortgaged premises in the plain- tiff's affidavit of claim mentioned, free and clear of all incumbrances done by him, or any claiming by, from, or under him, ani] do deliver up all deeds and writings in his custody or power relating thereto, upon oath, to the defendant, or to whom he shall appoint ; but in de- fault of the defendant paying to the plaintiff such principal, interest and costs as aforesaid, by the time aforesaid, then it is ordered, that the said mortgaged premises [or the premises subject to the said equit- able mortgage or lien] be sold, with the approbation of the said Master : And it is ordered, that the money to arise by such sale be paid into Court to the end that the same may be duly applied in pay- ment of what shall be found due to the plaintiff for principal, interest, and costs as aforesaid; and this Court doth reserve the consideration of all further directions until after the said Master shall have made his report. Class XXIV.] claims. 175 9. Foi-m of an Order for Redemption, on Claim by Person entitled to 22 April, 1850. redeem. Forms of orders. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vioe-Chancellor, naming him'], or, [Master of the Rolls]. Date. Between A. B., Plaintiff. C. D., Defendant. Upon motion, &c. [as in Form No. 1] this Court doth order, that it be referred to the Master in rotation to take an account of what is due to the defendant for princig^ and interest on his mortgage [or equitable mortgage or lien] in the plaintiff's claim mentioned : And it is ordered, that it be referred to the Taxing Master in rotation to tax the defendant his costs of this suit : And upon the plaintiff paying to the defendant what shall be reported due to him for principal and interest, together with such costs, when taxed, within six months after the said Master shall have made his report, at such time and place as the said Master shall appoint, this Court doth order, that the defendant do reconvey the mortgaged premises [or deliver up possession of the property subject to the equitable mortgage or lien] in the plaintiff's claim mentioned, free and clear from all incumbrances done by him, or any claiming by, from, or under him, and do deliver up all deeds and writings in his custody or power relating thereto, upon oath, to the plaintiff or to whom he shaU appoint, but in default thereof the plaintiff's said claim is to stand dismissed out of this Court, with costs to be taxed by the said Taxing Master, and to be paid by the plaintiff to the defendant. 1 0. Form of Order of Ueference of Title, on Claim of Person seeking specific Performance. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him], or, [Master of the Rolls]. Date. Between A. B., Plaintiff. C. D., Defendant. Upon motion, &c. [as in Form No. 1] this Court doth order, that it be referred to the Master of this Court in rotation to inquire whether 176 CLAIMS. [Class XXIV, 22 April, 1850. a good title can be made to the property comprised in the agreement Fonns of ordeis, in the aaid plaintiff's claim mentioned ; and in ease the said Master shall be of opinion that a good title can be made, it is ordered, that he do state at what time it was first shown that such good title could be made; and this Court doth reserve the consideration of all further directions, and of the costs of this suit, until after the said Master shall have made his report. 11. Form of Order for an, Account of Partnership Dealings and Transactions, on Claim of Person entitled to the Account. In Chancery. [Lord Chancellor, Vice- Chancellor of England, or Vice-Chancellor, naming himl, or, [Master of the Rolls]. Date. Between A. B., Plaintiff. C. D., Defendant. Upon motion, &c. [as in Form No. 1] this Court doth order, that it be referred to the Master of this Court in rotation to take an ac- count of the partnership dealings and transactions between the plain- tiff and the defendant from the day of : And it is ordered, that what upon taking the said account shall be found due from either of the said parties to the other of them be paid by the party from whom to the party to whom the same shall be found due ; [and this Court doth reserve the consideration of all further directions, and of the costs of this suit, until after the said Master shall have made his report.] 12. Form of an Order on Claim by a Person claiming to use the Name of his Trustee. In Chancery. [Lord Chancellor, Vice-Chancellor of England, or Vice-Chancellor, naming him"], or, [Master of the Rolls]. Date. Between A. B., Plaintiff. CD., Defendant. Upon motion, &c. [as in Form No. 1] this Court doth order, that the plaintiff be at liberty to use the name of the defendant in prose- Class XXIV.] claims. 17.7 cuting the action at law in the plaintiff's claim mentioned, on indem- 22 April, 18 0. nifying the defendant against the costs of such action : And it is or- poims of orders. dered, that it be referred to the Master of this Court in rotation to settle the indemnity to be given by the plaintiff to the defendant, in case the parties differ about the same. 13. Form of Order on Claimjbr the Appointment of new Trustees. In Chancery. [Lord Chancellor, Vice-Chancellor of England,, or Vice-Chancellor, naming himj, or, [Master of the Rolls]. Dale. Between A. B., Plaintiff. C. D., Defendant. Upon motion, &c. [^as in Form No. 1] this Court doth order, that it be referred to the Master of this Court in rotation to appoint proper persons to be new trustees under the indenture [^or will or other instrument] in the plaintiff's claim mentioned, in the place of [or to act in conjunction with'] the defendant : And it is ordered, that the defendant do convey [assign or transfer] the trust fund or property [referring io it (a)] to such new trustees [or so as to vest the same in such new trustees jointly with himself], upon the trusts of the said in- denture [or will or other document], or such of them as are now sub- sisting and capable of taking effect, and they are to declai-e the trust thereof accordingly, such conveyance [or assienment] to be settled by To be omitted in ., -, , .' ,, ''. j.i .... r 1 J -, • the case of infants the said Master, m case the parties ditter about the same : [And it is or ehajities. ordered, that the defendant do deliver over to such new trustees all where the defend- deeds and writings in his custody or power relating to the said trust ™' j^ continued a property.] (a) Where the property has been changed, the order may he drawn up so as to refer to the property vested in the defendant upon the trusts of the settlement. Sitwell v. Heron, 14 Jur. S^S. ( 178 ) CLASS XXV. SPECIAL CASES. 13 & 14 V. That it shall be lawful for persons interested or claiming c. 35 (a). to be interested in any question cognizable in the said Court Sec. I. as to the construction of any Act of Parliament, will, deed, or Tower to state . ... n ■ — "-"^ special cases for Other instrument in writing, or any article, clause, matter, or Court. thing therein contained,jor as to the jitle or e viden ce of title to any real or personal estate contracted to be sold or other- wise dealt with,#or as to the parties to or the form of_ any deed_or instrument for c arrying a ny such co ntract into eff ect, / ^ or as to any other matter falling within the origi nal i urisd iction of the sai3 CJourt as a Court of Equity, or made subject to the jurisdiction or authority of the said Court by any statut e ( not b eing one of the statutes relating to bankrupts ^nd in- cluding among such persons all l unati cs, married women, and infants, in the manner and under the restrictions hereinafter contained, to concur in stating such question in the form of a special case Jbr the opinion of th e sai d Court, and it shall also be lawful for all executors, ad ministrators , and tru.stees to concur in such case. (o) This is commonly called Sir George Turner's Act. For its title and the time of its commencement, see ante, p. 63, note (h). By s. 34 it is enacted, " That the following words and expressions in this Act shall have the several meanings thereby assigned to them, unless there be something either in the subject or in the context repugnant to such construction : Words importing the singular number only shall include the plural number, and words importing the plural number only shall i'lclude the singular number : Words importing the masculine gen- der only shall include females : The expression " Lord Chancellor" shall mean and include the Lord Chancellor, Lord Keeper and Lords Commissioners of the Great Seal of the United Kingdom for the time being : The word " Master" shall mean Master in Ordinary of the High Court of Chancery in England : The word " Lunatic" shall include idiots and persons of unsound mind, and whether found such by inqui- sition or not : The word " Guardian" shall mean father or testamentary guardian, or guardian appointed by the Court of Chancery (not being a special guardian appointed under the provisions of this Act). Class XXV.] special cases. 179 That the committee of the estate of any lunatic interested 13&14V.C.35. or claiming to be interested in any such question as aforesaid sec. ii. may, after having been a uthorize d in that behalf by the Lord concur!'"' "' "*'' C hancellor, concur in such case in his own name and in the name and on the behalf of the lunatic. That a husband interested or claiming to be interested in sec. iii. . , jy, . '"^-^f,, ..I.. 1 ■ /. • 1 • How married wo- rignt oi his vviie in any such question as atoresaid may concur in men may concur. such case in his own na me and in the name o f his wife where the wi fe has no claim to any interest dT stincL 'rom her hus- band, and that a married woman ha'^ing or claimin g any interest in any such question as aforesaid distinct from her hus- oand, t nay in he r own right concur . in such case, p rovided that her h usband a lso concurs therein. That the guardi an of any infant interested or claiming to sec. iv. , 3 ^1 , '' . "• . . - How infant may be interested in any such question as aforesaid, may concur concur. in such case in the name and on the behalf of the infant, un- jess such guardian has an interest in such question adverse _ to the interest of the infant therein. That it shall be lawful for the said Court by order to be Sec. y. made in the matter of any lunatic not found such by inquisi- be appointed for tion, or in the matter of any infant, upon the appl ication of found by inquisi- any person on the behalf of such lunatic , or u pon the appli- ^™' " ™ ™ *" • cation of such infantfa''. by motion or petition , to appoint any persoiTsIiown by affidavit to be a fit person, a nd to have no interest ad verse to the interest of the lunatic or infant, to be tlie special guardi ^ of such l unatic or infant , for the pur- pose of concurring in such case in the name and on behalf of the lunatic or infant, and any such person so appointed may lawfully so concur: Provided always, that it shall be lawful for the said Court to require notice of such applica- tTon to be giventosuch_£erson, if any, as the Court shall think fit. That in any case in which any such order as aforesaid shall Sec. vi. . Ill III ' F . , .-, -.. -r- r ■ e ^ Order appomtmg have been made by the said Court in the matter of any intant guardian of infant witho ut notice t o the guardian of the infant, it shall be lawful charged. for the said'Court, if it shall think fit so to do, to discharge su ch orde r, u pon th e appljcation of s uch guardian , by m otion or petition; and the said Court, if it shall think fit, may (a) An infant may apply for the ap pointment_ _9 f a Ruardian under this section. 'w iTmmr the intervention of a next friend. Ex. Craig, 15 Jur. 762, 20 Law J. 136. N 2 180 sPEciAt CASES. [Class XXV. 13&14V. C.35. thereupon appoint some other Jit_ person to be the special g uard jai) of such ini'ant for the purpose of such special case, and may alsogive -suc h directions as may be necessary for substituting in s uch special _c ase either the n ame of the guardian so_agpl\^ing, or of the s pecial guar dian so appointed, in lieuof the name of the special guardian so displaced : Provided always, that the discharge of any order appointing a special guardian shaUj iot"?" vf1i''^-^S- any thing which shall in the meantime have been done by such special guardian, unless the Court shall, upon notice to all parties, sp eciall y so direct. Sec. VII. That every such special case shall be entitled as a cause How special eases , -^n , ..- ,, fn m, mw,» . '"•■T"™"^ i .**^f~~~~' to be entitled. between Some o r one ol Hie parties interested or claiming to be interested as plaintiffs o r plaintiff, and the others or other of them as defendants or defendant ; and thaTl n" the titl e to such cases lunatics and infants shall be d escribed as such , and their committees, gua rdians , or special g uardia ns n amed ; and that w here in a ny such case a m arried woman is named as a p laintiff and her husband as a defendant thereto, a next friend of such marriecfwmHan shall be named in the title to sucti case. Sec. VIII. That every such special case shall Mnclsely state such facts ciaicase. and documents as may be necessary to enable the Court to decide the q uesti on raised thereby ; and that u pon the hear- ing^f such case the Court and the parties shall be at liberlv to re fer to the whole con f.gnf;}; of such documents ; and the Court shall be at liberty to draw from the facts and docu- ments stated in any such special case any infe rence w hich the Court might have drawn therefrom if proved in a cause (a). Sec. IX. That every such special case to which an infant or lunatic ' '■ is a party by his guardian or special guardian, s hall also state how s uch g uardian or special guardian was c onstituted ; and that w here any m arried woma n having or claiming any in- terest 5istinct from her husband is a party to such case, it shall be stated therein that she concurs in such case in her (o) But the Court c an not act upon i nferences d rawn by the ymtjes. and therefore t lie case ibii'st, wuh reference to any material p oin^upon which the e vidence is doubtful , state aUth^fecte upoHTBfflfflSJSSl which can be ascerTaTneHTancmiarn oTurthei' BVICTehce ca n be given on the subject ; and it must be left to the Court to judge o{ tne result of the statement. Domville v. Lamb, 9 Hare, App. Iv. Class XXV.] special cases. 181 That every such special case shall be sign ed by counsel for 13&14V.C.35. a]LBarXie^'(ig). and shall be filed in the same manner as bills sec. x. are^ffledTand that the d efen^ant sTnav a ppear th ereto m the MSnse"fliing ap- same manner a s defendants appear to bills ; and that no S ^onie^?'' defendant shall be requir ed t o take an office copy of a special case, but an off ice copy th ereof shall be taken by the plaintiff. " ———> That after a special case shall have been filgd, and the See. xi. d efendants s hall h ave appeared thereto, a ll the parties to such statements!" ^ special case shall be subiect to the iurisdiction of the Court m the same manner as if the plaintiff in the special case had filed a bill against the parties named as defendants thereto, and such defendants had appeared to such bill ; and upon the special case being filed, and appearances entered thereto as aforesaid, all parties to such special case, other than marr ied wome n, i nfants and lunatics , shall, for the p urposes of such speci al ca se, be bound by the statements tJierein ; and that married women, infants, and l unatTc s raacTe"parties to a special case shall, for the purposes of such special case, be bound by the stat ement s therein, when, and not before, le ave shall h ave been given b y the Court to set down su ch special case in manner hereinafter provided. That sqsoon a s all the defendants sliall have appeared to Sec. xil. .~, * ,'■'" •*- ' * , . ^ ^, "«=" ■. -f Setting down for the special case, the same may, subject to trie provisions hearing and sub- hereinafter contained, be set down for hearing (6), and sub- i"*"*'- poenas to hear judgment issued and served according to the practice of the said Court. That when any married wo man, infant (c), or lunatic is See. xiil. . , , " ' , . : "^' " J .'"'■«*^«=»» Wlien married wo- party to a special case, a pplication may be made t o the Lourt man, infant or lu- by motion for l eave to set down the same, of which motion application to be notice shall be given to e very party to such case jn whom, as ^? downier'" T " ' " " (o) The same counsel may sign for the plaintiff, and also for some of the defendants. Ex. Craig, supra. (i) In order to prevent delay, the Court will, on application for the purpose, order a special case to be set down with the petitions. Ex. Craig, (c) Where a fter a sp ecial case had been s et down, an i nfant tenant ^ in tail was bom, 'i t was held tTiat the proper course wag that tlie" order for' se tting down the case should be di s'charged, tffat the case s hould be am'enHed hvaddin g the infant as a party , that an a ppearance for the in- tSnt and fresh ^P'pearances tor a ll theother pa rties snould oe entered. that the le ave dftHe Cotirt sh ould be obta'ined uiider this section to set dow n the case fo rj hearing ; and it might then be restored to its former place in the paperi Thisflethwaite «. Gamier, 5 De G. & S. 73. 182 SPECIAL CASES. [Class XXV. 13&14V.C.35, e xecutor , adm inistr ator, or tr ustee, a ny p roperty in question therein is or is alleged to be vested i n t rust for or for the benefit of such marr ied wom an, i nfant , or l unatic , and also, if such ap plication be not made b y or on behalf of suc h marrie d woman, mfant, or lunatic, to such married woman and her husband , or to such infant, or to such lunatic and his commit- tee, if any, as the case may be ; and that upon the hearing of such motion the said Court may give leave to set dowti such case, if it sh all be of opinion that it is proper that the ques- tion raised therein shall be determined thereon, and shall be satisfied by affidavit or other s ufficient evidence th at tFe statements contained therein, so far as the same affect the interest of such married woman") infafft, or lunatic, are True, but otherwise may r efuse s uch application : Provided always. that in case the said Court, upon the hearing of such applica- tionj shall be of opinion that it is proper that the question raised in such case shall be determined thereon, but shall not be satisfied that the statements contained therein, so far as they affect the interest of such married woman, infant, or lunatic, are true, it shall be lawful for the said Court to refer ' it to one of the Masters (a) thereof to make such inquiries as to the Court shall seem proper, and upon further application being made, by motion as aforesaid, upon the said Master's (a) report, to give or refuse leave to set down such case as to the said Court shall seem fit. That it shall be lawful for the said Court, upon the hearing of any such special case as aforesaid, to determine the ques- tions raised therein, or any of them, and by decree to declare its opinion thereon, and, so far as the case shall -admit of the same, upon the right involved therein, without proceeding to administer any relief consequent upon such declaration (6) ; and that every such declaration of the said Court contained in any such decree shall have the same force and effect as such declaration would have had, and shall be binding to the same extent as such declaration would have been, if contained in a decree made in a suit between the same parties instituted Sec, XIV. Upon hearing, Court to deter- mine questions without conse- quential relief. (o) As to the Masters, see ante, p. 121. (6) Now, no suit in the Court of Chancery is open to objection on the ground that a merely declaratory decree or order is sought thereby, and the Court may make binding declarations of right without granting con- sequential relief. See 15 & 16 Vict. c. 86, s. 50, ante, p. 32, and notes. Class XXV.] special cases. 183 by bill(o): Provided always, that it shall be lawful for the 13&14V.C.35. said Court, if it shall see fit so to do, before proceeding to tnalie such decree as aforesaid, to send any case or cases for the opinion of any of her Majesty's courts of common law (6), reserving the consideration of all further directions and of the costs, and to make such decree as aforesaid upon such further directions; provided also, that if upon the hearing of such But court may re- special case as aforesaid the Court shall be of opinion that ^e1it°onr''^° ""^ the questions raised thereby, or any of them, cannot properly be decided upon such case, the said Court may refuse to decide the same. That every executor, administrator, trustee, or other per- sec. xv. .. ^jfc. .• r-i'i- Protection afford son makmg any payment or (fbmg any act in conformity with ed to execuiors. the declaration contained in any decree made upon a special case, shall in all respects be as fully and effectually protected and indemnified by such declaration as if such payment had been made or act done under or in pursuance of the express order of the said Court made in a suit between the same parties instituted by bill, save only as to any rights or claims of any person in respect of matters not determined by such declara- tion. That where any person shall be desirous to have a special Sec. xvi. case reheard, or to appeal from the decision thereon, it shall of appeal suspend be lawful for the said Court, upon application for that pur- pose, either at the time of the decree upon such special case being made, or at any time afterwards, and upon such condi- (o) And such decrees are subject to rehearing, appeal and review, and may be discharged and varied in the same manner as decrees made in suits instituted by bill. See s. 33, ante, p. 97. (6) It is no longer in the power of the Court of Chancery to send cases for the opinion of a court of common law, but it may itself deter- mine any question of law which in the judgment of the Court shall be necessary to be decided previously to the decision of the equitable ques- tion at issue between the parties. See 15 & 16 Vict. t. 86, .s. 61, ante, p. 39 and note. The judges of the Court of Chancery may also obtain the assistance of a common law judge, 14 & 15 Vict c. 83, s. 8, ante, pp. 3 and 11. On this subject V. C. Turner has expressed his opinion that it is desirable for the Court to avoid as far as possible sending cases for the opinion of another Court j and that the aid of a Court of Law, or the assistance of the judges of a Court of Law may be properly resorted to in cases where the question is one of importance to the general law of the country, or where the decision may have an extensive operation in a public point of view ; but not on questions which turn merely on the construction of particular instruments. Falkner v. Grace, 9 Hare, at p. 283. SPECIAL CASES. [Class XXV. 13&14V.C.35. Sec. XVII. Special case to be a lis pendens, and may be registered. Sec. XVIII. Identifying and production of do- cuments. Sec. XXXII. General practice and costs. tions, if any, as the Court shall think fit, to order that the declaration contained in such decree shall not be acted upon for such time as the said Court shall think just. That the filing of a special case, and the entering of ap- pearances thereto by the persons named as defendants therein, shall be taken to be a lis pendens, and may be registered under the provisions of an Act made and passed in the second year of the reign of her present Majesty (a), intituled " An Act for the better Protection of Purchasers against Judgments, Crown Debts, Lis pendens, and Fiats in Bankruptcy," in like manner as any other lis pendens in a Court of Equity may now be so registered, and, unless and until so registered, shall not bind a purchaser or mortgagee wit hout express n otice thereof. That any docume nts referred to in a special case, and any copies thereof or extracts therefrom, identified by the signa- ture of the s olicitors f or all parties, or of the London agents of such solicitors, may be produced and read at the hearing of such case without further proof; and that it shall be lawfur for the said C o urti fc). at any time after the filing of the special case, and the entering of appearances thereto by the persons named as defendants therein, t o order any d ocument which may be admitted thereby to be in the possession of any party to such case to be depos ited and produced in such man- ner and for such purposes as the Court shall think fit. That in the meantime, and until any such general rules or orders shall be made (c), and in so far as the same, when made, shall not be applicable, the proceedings under this Act (a) C. 11, whereby it is provided that no lis pendens shall bind a pur- chaser 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 affected thereby, and the Court of equity, and the title of the cause or information, and the day when the bill or information was filed shall be left with the senior Master of the Court of Common Pleas at Westminster, who shall forthwith enter the same par- ticulars in a book in alphabetical order by the name of the person whose estate is intended to be affected by such lis pendens. See s. 7 ; and such lis penden s must be re-enterei^ e very five years ; i b. and s. 4. '(i)) 'As to the proauction ot documents, see ante, p. 70. (c) i. e. the general rules and orders authorized to be made by ss. 30 and 31, see ante, p. 63, note (6) ; but none have been made relating to -special cases. Class XXV.] special cases. 185 shall be governed and regulated by the provisions herein con- 13&14V.C.35. tained, so far as the same extend, and in so far as the same do not extend, shall, as well with respect to the persons who ought to be made parties(rt) to special cases as in every other respect, be governed and regulated by the rules, orders, and practice of the said Court in suits instituted by bill, so far as the same can be applied thereto (6), and, subject to such general rules and orders as aforesaid, the costs of all pro- ceedings under this Act shall be i n the discretion of th e said Court (c). (o) The provisions of the 15 & 16 Vict c. 86, are applicable to Special Cases, and tlierefore the executois of a father who survived, and became the sole next of kin of, his deceased children, may be appointed by the Court, under the 44th section of that Act {ante, p. 43), to represent the estates of the deceased children for the purposes of a Special Case. Swallow V. Binns, 9 Hare, App., xlvii. (6) A fter a special case had been set down for hearing, one of the poi-Hoc •{^'•r', a"rt i> '■'ag held that his representatives might be' Drougntr* b efore the Cour t b y amendment, there beStig no ^ttleiTpractice, ana"EBe rule applicable 16 bills not being applicable to special cases, Ainsworth v. Alman, 14 Bea. 597 ; and see Thistlethwaite v. Gamier, supra, p. 181. (c) Under this section the Court has power to direct paym ent of costs out of the estate, Jackson v. Craig, J.a Jur. 811 ; ZtTEaWTJ. 2U4. ( 186 ) [Class XXVI. CLASS XXVI. SUMMARY PROCEEDINGS BY AND AGAINST EXECU- TORS, ADMINISTRATORS AND TRUSTEES. Sect. I.— The Legacy Duty Acts (36 Geo. 3, c. 52, and Zl Geo. 3, c. 135). 2.— The Trustees' TUlief Aets (10 Sj 11 Vict. c. 96, and 12 ^ 13 Vict. c. 74). 3.— Sir George Turner's Act (13 S; 14 Vict. c. 35). 4. — The Imjyrovement qf the Jurisdiction of Equity Act (15 ^ 16 Vict. c. 86). Sect. 1. — The Legacy Duty Acts (36 Geo. 3, c. 52, anrf 37 Geo. 3, c. 135). 36G.3,c.52(o). That where by reason of the infancy or absence beyond Sec. XXXVI. seas of any person entitled to any legacy, or to'tlre 'resmue orabsencebeyond oTmy personal estate, or any part thereof, chargeab le with m^' ii?^afd'toto duty by virtue of t his^Act; the person or persons having or theBank,^dUia taking the burthen of any will or Tesitamentary 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 (6) for such person or persons to pay such legacy, (a) An Act for repealing certain duties on legacies and shares of per- sonal estates, and for granting other duties thereon in certain cases." Royal-Assent 26th April, 1796. (6) Although this Act is in its terras permissive only, yet if in a case coming within its provisions an executor does not avail himself of them he wiU not be allowed his costs out of the estate, see Whopham v. Wingfield, 4 Ves. 630 ; and where executors, instead of paying an in- fant's legacy into Court, had invested it in consols in their own names, and when the infant came of age, offered her the amount produced by sale of the stock with the interest, it was held, on a bill being after- Sect, l.j the legacy duty acts. 187 or residue, or any parts or part thereof respectively, or any 36G.3, c.52. sum or sums of money on account thereof, after deducting the duty chargeable thereon, into the Bank of England w7tli~ the privity of the Accountant-G eneral of the Court of Chan- cery, to be placed to the account of the person or persons for whose benefit the same shallHoe^ paid (a) ; for payment o f whi ch money th e said Accoun tant-General s hall give his cer- tificate as usual in such cases (6), on production of the cer-, ti ficate oAhe co m missioners of stamps , that the duty thereon lias been duly pai J'; and* such paym ent into the Bank shall be a sufficient discharge for the money so paid in, p rovided the d u ty 'he al so p aid thereon as aforesaid ; and such money (c) when paid In shall be laid out b y the said Account- ant-General, wit hout any for mal reque st for that purpose, in the purchase of three pounds per centum consolidated annui- ties, which, with the dividends thereon, shall be transferred and paid to the person or p ersons entitl ed thereto, or other-"' wise applied for his or their benefit (rf), on a pplication to the Court of Chancery, by petition or motion (e), in a summary way(/): Frovided always, that if it shall afterwards appear if money impro- that such money, or any part thereof, has been improperly couit may d!s,- paid into the Bank as aforesaid, it shaU also be lawful for the P^/ofi^wA*^ said Court of Chancery, upon petition, in a summary way, to dispose thereof, and of the annuities purchased therewith, and of the dividends received thereon, in such manner as wards filed, that the executors ought to have paid the legacy into Court ; and they were decreed to pay the amount of the legacy with interest at four per cent, and the costs of the suit. Rimellv. Simpson, 18 Law. J. S5 ; and see Smallwood v. Rutter, 9 Hare, 24. (a) No order is required. See note (a) to Re Biggs, 11 Bea. 27. (6) iUe aV ueo. a, c. laa, regulated the mode in which the Accountant- General's certificate should be filed, and in which his draft for the money should be entered and signed ; but these regulations have been altered by the recent Act of 15 & 16 Vict. t. 87, and the order of the L. C. of the 27th July, 1852. See Class II., sect. 6, ante, p. 26. The 37 Geo. 3, c. 135, also empowered the Court to make orders to carry into execu- tion the 36 Geo. 3, c. 52, and that Act. (c) And the dividends and accumulations thereon. See Order of L. C. of 4th May, 1852, iii/ra. (d) On proper authority given by a foreigner and his wife, resident abroad, payment was ordered to be made to their solicitor in this country. Ex parte De Beaumont, 1 3 Jur. 354. (e) The application was made by motion in Ex. Bennett, 19 Saw J. 375. (/) AJrpliTHtinUT nnfl"" <^^° .*r.t ff)'- piynnpnt nf r^nr^f^y f,>4 ^(MeM-tt^ are now (made before the Maater of the Rolls and Vice-(Jhancellors sitting inlchambers. See 15 & IJB Vict. c. 80, s. 26 ; Re BataJd, 9 Hare, — ' ■— ■ *' • er, li^^, art^jB^jmUjp^m. 188 IHE LEGACY DUTY ACTS. [ClASS XXVI. 36G.3, C.S2. justice shall require: Provided also, that if it shall appear I If too much duty that the duty paid in respect of any such sum of money was I Commissioner w-^Jn ore than ought to have been paid, it shall be lawful for the ' cxMs's^j"™ perfeciii or persons who shall have paid such duty, to apply to the said commissioners for management of the stamp duties, to repay such excess of duty ; and the said commissioners are hereby authorized, upon such application, to repay such excess of duty to the person or persons who shall appear to them entitled to receive the same, or to pay such excess of duty into the Bank, with the privity of the said Accountant- General, for the benefit of the person or persons entitled, there to be placed to the same account, and to be applied in the same manner as the same would have been applicable, if paid together with the remaider of the legacy, or sum of money, in respect of which the same shall have been paid; and the said commissioners are hereby authorized to make such payments respectively out of the monies in their hands, and if too little, arising from duties imposed by this Act : and if tiie duty paid the Court on pay- i.j .. ,,, ment of the full to the said commissioners shall appear to be 'ess than the duty may order , ... , , , . , . , ,, , its repayment out 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 full duty to the said commis- sioners, in such manner as the same ought to be paid, with such penalties, if any, as ought to be paid In respect thereof, to apply to the Court of Chancery, in a summary way, for the repayment of the further sum paid to the said commis- sioners 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 hereby authorized to order. 4 May, 1852. That the Accountant-General be at liberty, unless he shall finve'stment of di- have received, on behalf of some party claiming to be enti- mulattons'^^ t'^'^j notice in writing of an intended application to the Court M^CJ^ "t^ for otherwise disposing of the fund, from time to time, to lay <^<(tVMjt**4ne if such an Act had not passed. All that the Act has done is to facilitate the mode of getting money into Court ; it saves the expense of a suit in many cases, and the expense of appointing new trustees ; it saves also all those proceedings which are necessarily expen- sive and productive of delay where, after a bill filed and on their answer, trustees are permitted to pay money into Court. Per Lord Cottenham, C, In re Bloye's Trust, 1 Mac. & G. at p. 499, 500. The Charcery Commissioners observe (Bepoi'f of 27th Jan. 1852, p. 12) that great use has been made of this Act, and that the Court has had no difficulty in ascer- taining and giving effect to the rights of the persons interested in the trust funds. (6) Stock standing in the names of four trustees, two of whom were dead, may be transferred into Court by the survivors. Re Parry, 6 Hare, 306. (c) A trustee paying into Cou rt a sum of money l ess t han t he amount of the trujFTilhd m BiSTaBcIs is di scharged as to fh^^roney so paid in, which caH Wily US rtcovere'd under the Act, an"d the ortTlnary iurisdicTion of the Court is c onfined to the b a lance w hich may remain'in the hands" oTtKS ffusWE, GoSle v. West, \i'HiVi, !J78 ; and see Re Bloye's Trust, 1 Mac. & G. 488, and Re Joseph's Will, 11 Bea. 625. (d) See 12 & 13 Vict, c, 74, s. 1, infra. (e) A t rustee is not only justified in transfer ring the trust fund in to CourtTf anSTEat without t4^ard to ils ettect on {he liability of other par- tiS"as to the payment of costs. Re Croyden's Trust, 14 Jur. 54 ; Re Mussenden's Trusts, 4 Ir. Jur. 389); but if he does not do so, t he Court may, in a suit afterwards instituted, take thlt cir cumstan ce into coRi sideration iiT^ealfflg' *ith thi qu'iSStion of costs. See 'Smallwoog^'C~ RuRSl^ THare.-Z^pnrd the other cases cited, supra, page 186, note (6). 190 THE trustees' RELIEF ACTS. [ClASS XXVI. 108tnv.c.96. filing an affidavit (a) shortly describing the i nstrument cre- at ing th e trust, according to the best of their knowledge and belief, to pa y the s ame, with the privi ty of the Ac c ountant- General of the High Court of Chancery, into the Bank of England, to the accou nt of such Accountant^General jn the matter of th e particula r trust (describing the same by the names of the parties, as accurately as may be, for the purpose of distinguishing it (6)), in trust to attend the orders of the said Court ; and that all trustees or other persons haviiig" any annuities or stocks st anding in their names in the books of the Governor and Company of the Bank of Englan d, or of the East India Company or So uth Sea Compa ny, or any government or parliamentary securities standing in their names, or in the nam^ of any deceased persons of whom they sSall be p ersonaTreprese n^Hyes^ upon any lrusts what- soever, or the major part of th«n ,(c), shall be at liberty (rf) to tr ansfer or deposit such stocks or securities into or in the name of the said Accountant-General, with his privity, in the matter of the particumr trust (describing the same as afore- (a) No order of the Court is necessary, Ke Biggs, 11 Bea. 27; and see Order 2 of 10th June, 1 848, infra, and for the form and contents of the affidavit, see Order 1 of same date, infra, p. 193, and note (6). (b) An account headed " In the Matter of the Trusts of the Will of S. J.' ' is too general, as it involves the necessity of seeing to the payment of the debts and to the due administration of the estate ; so an account headed " In the Matter of the Trusts of the Will of W. E., dated, &c., in relation to one-fourth part of the sum of, &c. bequeathed by the said Will to Trustees for A. K. and M. K., as in the said Will is mentioned," for the trustees must take on themselves the responsibility of separating the fund finally and for ever, not only from the other assets, but irom all the other trusts of the will, and of saying that the fund belongs to those to whose particular account he desires the fund to be carried, but that he declines to take upon himself the responsibility of ascertaining the per- sons or making the payment In cases where the fund stands to an account which is too general, it will not be paid back again, but must be transferred to a particular account. See Re Joseph's Will, 11 Bea. 625 ; Re Everett, 12 Bea. 485 i Re Wright's WiU, 18 Law T. 268; and Re Tinstone's Trust,- 9 Hare, App. lix. F o r some for ms of headings of separate accounts in the Accountant-Ctei'ielal's b(iuKS, i jegTiCTe't o Re Jervoise, 1 2 Bea. at p. 21 0. Notwithstanding the above-mentioned ob- jection to tlie gtflltfmllLy (STan account on the ground of its involving an administration of the estate, the Court will, where the fiind is of small amount, direct the common administration accounts, without putting parties to the expense of instituting other proceedings, Re Magawley's Trust, 5 De G. & S. 1. A fund may be carried to " the account of the cestui que trust and her incumbrancers," Re Cawthorne, 18 Law J. 116 ; in which case the Court decided a question of priority between the in- cumbrancers. (c) See note (d), supra, p. 189. (d) See note («), supra, p. 189. Sect. 2.] the trustees' relief acts. 191 said), in trust to attend the orders of the said Court; and in lO&llV. c.96. every such case the receipt of one of the cashiers of the said Receipt of ijank ^ , „ , ■ ■ . ■ -.„_»«-—• cashier, or oerti- c ank to r t he money so paid, or in the case oi stocks or secu - floats ot proper rities, the cer tificate of _ the proper offi cer, of the transfer or charge of such ' de posit o f such stocks or securities, shall be a sufficient dis- cliar^eto s uch trustees or other persons for the money so paid (o), or the stocks or securities so transferred or depo- sited. That such orders as shall seem fit (b) shall be from time to _ ?f°'2^; V ' Court to make or- time made by the High Court of Chancery, in respect of the ders on petjjjan. '' ° ^ ^ •'/ ^ m respect of trust trust monies, stocks or securities, so paid in, transferred and monies, and for . •ii^i- 1 administration of deposited as aforesaid, and for the investment and payment trusts. (o) See note (c), supro, p. 189. (6) Where a sum of money was paid into Court by an executor, in the belief that it was a clear residue, and debts were afterwards discovered to be due ti:om the estate, the Court, with the consent of the persons bene- ficially interested, ordered the money to be paid out again to the exe- cutor, he undertaking to apply it in a due course of administration, Ex. Tournay, 3 De G. & S. 677. Where a lunatic, entitled to a fund inC^jgfa, had been placed by guardians of the poor in a lunatic asylum, arjxn^d paid and were liable to pay various sums of money on his behalf, ixwas ordered that the monies expended by the guardians should be paid to them out of the fund, and that the residue should not be transferred without notice to them. Re UpfuU's Trust, 3 Mac. & G. 281 ; and where a fund belonged to a felon, it will be paid to the Crown, Re Church's Will, 16 Jur. 517. With respect to the costs of proceedings under the Act, it has been held that the costs o f the trus tees of bringing the fund into Court must come out of the general estate^ Ke^ <-Jawthorne, I'z tiea. 56; ke Waring, ^ fb Ttltrfigyr^niffTITgC^neir costs of an application respecting the fund must come out of the fund, to. ; ana lie koss's Trust, 1 Jiim. w. is. i»o. - In one caseTlTWayllieldthat the tru stees' cos ts of an ap plication for payment only of the dividen ds were payauie aiTCriiPh'e.-eer-piii6.-.o£tthe ^ fund. Re Staples' SettleriTSHC 1'3 Jur. 273 ; but it has since been consi- dered that they should come out of the income. Re GafFee's Settlement, as reported in 13' Jur. 78, and 19 Law J. 179. Executors were refused their costs where, being informed that a bill was about to be filed against them by a person entitled to a shai-e of residue, charging them with breaches of trust, they paid a sum into Court as the share of that person. Re Waring, supra. Costs o f trustees and executors un der the Act are taxed as between s olicitor and "c l ient ; see the cases cited supra. Costs of preliminary inquiries relating to a class^flegatees p etitioning for the fiMnjjUt^fime'ouTorfhe testafbr's estate , "Keahafpt's TruStSm; 15 Sim. " i70 ; but the costs of all parties to a p~etition for payment of the fund out of Coiirtmurrcome~^out of the fund,'K e"Bartholoniew's Will; as re - - jjortid in lU Jur. 380 j ev^_oLan un^cessful respon dent, ib. ; but see Re Ross's Trust, supra. ~ With resjSSET to'tKe costs "of lenants for life applying for payment of the income of the fund, there is a difierence of judicial opinion : on the one hand it was held by V. C. Knight Bruce in Ex parte Fletcher, 1 2 Jur. 61 9, and Ex parte Peart, ib. 620 ; by Lord Langdale, M. R. in Re Lorimer, 12 Bea. 521 ; and by V. C. Kindersley in Re Bangley's Trust, 16 Jur. 682, that the costs must come out of the income, and not out of the corpus of the fund ; and on the other hand, it has 192 THE trustees' relief acts. [Class XXVI. lO&ll V.C.96. of any such monies, or of any dividends or interest on any such stocks or securities, and for the transfer and delivery out of any such stocks and securities, and for the administra- tion of any such trusts generally, upon a petition (a) to be presen ted in a su mmary way to the Lord 'Charicellbr tjnffi"* Jviaster of the Rolls, without bill, by such party or parties as to the Court shall appear to be competent and necessary in that behalf (6), and serv ice of such p etition shall - be made upon such person or persons as the Court shall see fit and di- rect (c) ; and every order made upon any such petition shall have the same authority and effect, and shall be enforced and subject to rehearin"g~and appeal, in the same manner as if the same had KeeiS* made 'in 'a SUit regularly instituted in the Court ; and if it shall appear tha^ any such trust funds can- not be safely distributed without the institution of one or more suit or suits, the Lord Chancellor or Master of the Rolls may direct any such suit or suits to be institutedj^). been decided by V. C. Lord Cranworth in Re Ross's Trust, supra, and by Sir John Romily, M. R. in Re Butler's Trust, 16 Jur. 324., and Re Field's Settlement, ib. 770, that the costs may come out of the capital. It should be observed, however, that neither of the cases before V. C. Knight Bruce, Lord Langdale, or V. C. Kindersley was cited before Lord Cranworth or Sir John Romilly ; whereas the case of Ross's Trust, and the case of Field's Settlement, which was decided upon the autho- rity of Ross's Trust, were cited before V. C. Kindersley, and the last- mentioned case was expressly disapproved of. (a) The application cannot be made by motion^ R e Masselin's Trusts, 15 Jur. 1073. The p etitiog"S lRruia state the aflidavit made by the trus- tees on paym ent of tl ie lUHIl into Court, as it is tne aeclaration of trust oif'WBtBh" lie Court 'acts. Re Levett's Trusts, 16 Jur. 1063. (6) If the fund is cl aimed by more than one party, a p etition should be prese iiBid 4T V-» aeh par tY_L out tney may agree tp the question b eing d ecide d on the petition of one of theni, Iti lilAye's Trust, supra ; but one order flllly will be made upon tne petitions. Re Magawley's Trust, supra^ A~cl3lmant may proceed in forma pauperis, Re Money, 13 Bea. 109. (c) See Orders 5, 6, and 7 of 10th June, 1848, infra, p. 194. (d) The cases in which the Court has distributed the funds without the institution of a suit are : on questions of priority between incum- brancers. Re Cawthorne, 18 Law J. 116 j as to the restraint on anticipa- tion of a provision for the separate use of a married woman. Re Gaffee, 7 Hare, 101, 1 Mac. & G. 541 j on the validity of a,purchase by a trus- tee, or a solicitor conducting the sale of t he pr pperty, Re BToye'sTriist, nSrSSrS G. '43li,lira in rrvriom^ Lewis V. HMman, 19 Law T. 329 j on the con ptTuction of the terms of a marriage settlem ent, Re Dalton, 1 De G., i/LUii. aUS ; and on the va lidity ot a trust a ^a gainst creditor s of the author of it. Re Magawley's Triist, 6 Ue U. St S. iTin wnicti case a general administration of a deceased's estate was also directed. In some cases the Court will direct a reference to the Master, and without prejudice to the right of the petitioner to file a bill. Re Wood's Settle- ment, IS Sim. 469 ; Re Sharpe's Trustees, ib. 470 ; Re Kirby's Trust, 5 De G. & S. 228. Sect. 2.] the trustees' relief acts. 193 That the Lord Chancellor, with the assistance of the Mas- 10&HV.C.96. ter of the Rolls, or of one of the Vice-Chancellors, shall seTTv! have power, and is hereby authorized to make such orders General Orders, as from time to time shall seem necessary for better carrying the provisions of this Act into effect. Any trustee desiring to pay money or transfer stock or lo June, 1848. securities into the name of the Accountant-General of the _.,, O"^?- ^■.„, Title and contents Court of Chancery under the said Act (a) is to file an afR- "f trustee's affida^ davit, entitled in the matter of the Act and of the trust, and setting forth (6), 1. His own name and address, 2. The place where he is to be served with any petition or any notice of any proceeding or order of the Court relating to the trust fund. 3. The amount of stock, s ecurities, or money^ which he proposes to deposit or to transfer or to pay into Court to the credit of the trust. 'PS' 4. A short description of the trust and of the instrument creating it. 5. The names of the parties i nterested in or entitled to the fund to the best of the knowledge and belief of the trustee. 6. The s ubmission of the trustee to answer all such en- quiries re lating to the application of the stocks, se- curities or money, transferred, deposited or paid in under the Act as t he Court rqa y thjnk proper to make or direct. The Ac countant - G eneral on pr oduction of an office c ppy old. ii. of the aflSdavit is to give the necessary directions for transfer, nS'Tdu^ir^ °" deposit or payment, and to place the stock, securiti es o r m^ney tolhe a ccount of the particular tru st, and such transfer, deposit or payment is to be certified m the usual manner (c). The trustee having made the payment, transfer or deposit Ord. iii, is forthwith to give notice thereof to the several persons interested. name&Tn'"BS affidavit, as interested in or entitled to the fund. (a) 10 & 11 Vict. t. 96, supra. (6) And where the parries deem it unnecessary to have the money or the dividend s, or i nterest of stnr^: nr sennrities in vested in the meantime. s ui^h atHrlj^y if ia also to contain a statement to that ettect. Kee uraer ot 7th May, 1852, infra, p. 1^0. (c) For the duties of the Accountant-General as to investment, see Order of 7th May, 1852, infra, p. 195. 194 10 June, 1848. Ord. IV. Who may apply. Ord. V. Service of notice on trustee. Ord. VI. And on parties interested. Ord. VII. Address for ser- vice. Ord. VIII. Title of petitions and affidavits. 12 & 13 V. 0. 74(c), f Majority of trus- tees, &c. may act. THE trustees' BELIEF ACTS. [ClASS XXVI, Such persons, or any of them, or the trustee may apply by :i i j i II ■ 11 1 , Mil m m . I ^' petition, as occasion may require, respe cting the investment, pay ment' out , or dis tribution of the fund, or of the divicfends or i nterest thereof. The trustee is to be served with notice of any ap plication made to the Court respecting the fun37 or the dividends or interest thereof, by any party interested therein or entitled thereto (a). The parties interested in or entitled to the fund are to be served with notice oi any application made to the Court by the trustee respecting the fund in Court, or the interest or di- vidends thereof (ft). No petition is to be set down to be heard until the petitioner has nrst named a place where he may be served w ith any pe- tition or notice of any" proceeding or order of the Court re- lating to the trust fund. S Petitions presented and affidavits filed ^dex-the said Act are to be entitled in the matter of the said Act (10 & II Vict. 96) and in the matter of the particular trust. Whereas difficulties have arisen in the transfer of securities vested in trustees in certain cases under the provisions of an Act passed in the session of parliament holden in the tenth and eleventh years of the reign of her present Majesty, inti- tuled "An Act for better securing Trust Funds, and for the Re- lief of Trustees (rf)," and it is expedient to make further pro- vision for carrying into effect the objects of the said recited Act : Be it therefore enacted by the Queen's most excellent Ma- jesty, by and with the advice and consent of the lords spiri- tual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that if upon any petition presented to the Lord Chancellor or Master of (o) Leave will be given to serve the trustee at the address for service given in his affidavit made on transfer of the fund into Court, Ex parte Baugham, 16 Jur. 325. (ft) Where a married woman, having a power of appointment over a reversionary trust fund, appointed it by way of mortgage, with power of sale, and her trustees paid it into Court, it was held that the assignees of her husband, who had become bankrupt, ought to be served with a peti- tion, presented by the mortgagees, for payment to them, Ex parte Stutely, 1 De G. & S. 703. (c) " An Act for the further Belief of Trustees." Royal assent, 28th July, 184i9. (d) 10 & 11 Vict. c. 96, supra, p. 189. Sect. 2.] the trustees' relief acts. 19S the Rolls in the matter of the said Act it shall appear to the 12&13V.C.74. judge of the Court of Chancery before whom such petition shall be heard that any monies, annuities, stocks, or securities are vested in any persons as trustees, executors, or adminis- trators, or otherwise, upon trusts within the meaning of the said recited Act, and that the major part of such persons are desirous of transferring, paying, or delivering the same to the Accountant-General of the High Court of Chancery under the provisions of the said recited Act, but tha t for any reason the concurrence of the other or others of the m can not be had, it shall be lawful for such judge as aforesaid to order and direct such transfer, payrqent, or delivery to be made by the major pa 7t""or~such persons' without the "cShcu'rrence of the other or othersof them ; and where anyVuch' monfes 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 monies, government or parliamentary securities, to the major part of such trustees, executors, ad- ministrators, or other persons as aforesaid, for the purpose of being paid or delivered to the said Accountant-General as to the said judge shall seem meet; and every transfer of any annuities, stocks, or securities, and every payment of money or delivery of securities, in pursuance of any such order, shall be as valid and efiectual 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 monies or securities so paid or delivered respectively, and shall fully 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. Where any trustee desirous to pay money or transfer stock 7 May, 1852. or securities into the name of the Accountant-General of the Sy^ertment of ° Court of Chancery, under the said Act, is, under a General ^S'ereJt.*™*' Order of the said Court, dated the tenth day of June, one thousand eight hundred and forty-eight, directed to file an affidavit entitled in the matter of the Act and of the trust, setting forth certain matters and things in the said Order of Court specified and declared, in future, such affidavit, inevery case where the par ties deem it unnecessary to have the raonej^ 196 THE trustees' RELIEF ACTS. [CtASS XXVI. 7 May, 1852. or the dividends or interest of stock or securities invested in tlw mean time, sh all fur tliei;,,cp,i;itaina_statement to that effect i^ and If tjie.afl^davaLghall contain no such statement, theT^c- countant-General shall be at nberty^ to invest, asTdon as con- venientiy may'Be',' the said cash in Bank 31. per cent._annuities, in the matter of the particular trust ; or i n cases of dividends or interest on stock or securities transferredjsuch dividends or mterest in the like stock, and all accumulation s of the dividends of "the stbcITiri wnich sucT cash shall be invested, and of the dividends or interest on such stock or securities as aforesaid, from time to time, in the like manner, without any special order made by the Court in that behalf, and without any formal request for that purpose. And the Accountant- General is to declare the trust thereof when purchased, sub- ject to the order of this Court. And for the purposes afore- said, the Accountant-General is to draw on the Bank, accord- ing to the form prescribed by the Act of Parliament and the General Rules and Orders of this Court in that case made and provided. Provided al.ways. th at if, at any time, a re- quest in writing, b y or on behalf of any party claiming to be entitled, that such investment be~ctiscoritiniJie3, shall be left with the Accountant-Gener al, he shall be at" liFerty to cease making any further investment in the matter of the particular tru"§rTJntir'tfie""Court shall have made some o rder in that be- half. Sect. 3.— Sir George Turner's Act (13 ^ 14 Vict. c. 35). 13 & 14 V. And whereas it is expedient to provide means for enabling Sec. XIX.' executors or a dministrator a of deceased persons to ascertain Muntof'drtts vfliether there are any outstanding debts or liabilities affect- &c. of a deceased ji,™ tjjg personal estates of such persons without the delay on application by o r ^ ^ ^ r j executor or ad- ajj^ expense of suits to administer such estates : be it there- I miiustrator. '^ (o) This is commonly called Sir George Turner's Act. For its title and the time of its commencement, and the powers of making general orders thereunder, see ante, p. 63, note (6) ; and for the construction of some of the terms in it, see ante, p. 178, note (o). It has heen stated (see the Appendix to the Chancery Commissioners' Report of the 27th January, 1852, p. 209) that the orders which have been made under this and the following sections of the Act are very few ; and the objections to proceeding under it seem to be (see ih. 178) that the power to apply is given to the executor^r administrator only, that the application cannot be made till 'year S£fae death, and that there is no Sect. 3.] sir george turner's act. 197 fore enacted, that it shall be lawful for the said Court, upon 13&14V.C.35. the application of the executors or administrators of any de- ceased person, by order , to be made upon motion or petition of course (a), and to be in the form or to the effect set forth in the schedule hereto (6), with such variations as circum- stances may require, to refer it to one of the Masters (c) of the said Court to take an account of the debts and liabilities affect- ing the personal estate of such deceased person and to report thereon (c) : provided always, that no such order sh all be made until the expiration of one year next after th e death of such deceased person, or pending any proceedings to admi- nister th e estate of such person, and that in case at any time after the making of such orcfer any decree or order for ad- ministering the estate of such deceased person shall be made, it shall be lawful for the said Court by such decree or order to stay or suspend the proceedings under such order of course, on such terms and conditions, if any, as to the said Court shall seem just. SCHEDULE referred to ly the foregoing Act. [Doie.] In the matter of A. B., late of , in the county of , Porm of order(ii). banker, [or as the case may ie], deceased. Upon motion this day made unto this Court by Mr. , of counsel for C. D, of , the executor \or administrator] of the above-named A. B. [or upon the humble petition of C. D. of , the executor (or administrator) of the said A. B., this day preferred unto the right honourable the Master of the Rolls, for the reasons therein contained], it is ordered, that it be referred to the Master of this Court in rotation power of staying proceedings either at law or in equity j that is to say, until after the filing of the Report ; see s. 24, infra, p. 201. These obiec- tions seem to be removed by the 15 & 16 Vict. c. 86, ss.45, 46, and 47, in/ra, sect. 4 of this Class ; but as that Act does not provide for summary pro- ceedings hy executors or administrators, it will in such cases still be necessary to resort to the Act now under consideration. (o) The application must be supported by affidavit, a nd be mentioned to the Court. The woras " ot course" mean only that no service is requisite. Re Harrold, 15 Jur. 763. (*) See the schedule, infra. \c) Since the Masters in Chancery Abolition Act (15 & 16 Vict. c. 80) these o rders will be taken bv the judges sitting in chambers u nder the provisions of that Act and the general orders maae m pursuance thereof. See Class XVII., ante, p. 98, and Re Catling, 9 Hare, App. vii. (d) This form will now be altered so as to correspond with the practice in the judges' chambers ; see note (c), supro. 198 SIR GEORGE TUKNEE's ACT. [ClASS XXVI 13&14V. C.36. to take an account of the debts and liabilitieg affecting the persona Form of order. estate of the said A. B., and to co mpute interest on such of the saii debts and liabilities as ca rry interest a fter the rate of interest the same r espectively carry ; and the said Master is to cause an advertisemeni to be published in the London Gazette and such other public papers as he shall think fit for the pe rsons claiming_ in respect of any such debts or liabilities to come in before the said Master, and prove their debts and claims, and he is to fix a peremptory day for that purpose ; and such of the said creditors as shall not come in and prove their debts and claims by the time so to be limited are to be excluded the benefit of this order : And it is ordered, that the said Master do djsting ui sh debts fr om liabilities, and li abilities certain from li abilities contingent : And it is ordered, that the p ersonal esta te of the said A. B. be applied in payment and satisfaction of such debts and liabilities of the said A. B. in a due couise of administration ; and for the better taking the said accounts and discovery of the mat- ters aforesaid, the parties are to produce before the said Master, upon oath, all deeds, books, papers and writings in their custody or power relating thereto, and are to be examined upon interrogatories as the said Master shall direct ; and any of the parties are to be at liberty to apply to the Court as there shall be occasion. 2 Nov. 1850. Every p etition or motion-paper f or a reference under the f Pe?WoiH^"t ^^'^ section of the said Act is to be marked at or near the I be marked with top OF upper part thereof in the same manner as a bill is now I name of L. C. and '^ I r r V. c. or M. R. marked with the nanne of the Lord Chancellor and one of the Vice-Chancellors, or with the name of the Master of the Rolls (a) ; and every order for any such reference is to be mark ed in the same manner as the said petition or motion- paper, and the matter in which such order is made is thence- forth to be considered as attached to the Court of the judge whose name shall be so marked upon such order, in like manner and for the like purpose as causes are attached to such Court, but shall be subject to be tranferred from such Court in the same manner as causes are so transferred ; and the provisions of the order comprised in the General Order of the 5th of May, 1837, which is numbered 15, and of the General Order of the Sth of August, 1842, shall apply to every matter so attached (6). (a) For the manner in which a bill is so marked, see Order 1 of Sth May, 1837, ante, p. 49, note (6), and Order 2 of 29th October, 1851, anU, p. 49. (6) By the 15th Order of the Sth May, 1837, it is provided that, in the interval between the close of the sittings after any term and the Sect. 3.] sir george turner's act. 199 That it shall be lawful for any person w ho may have come 13&14V.C.35. in before the Master (a) under any such order, and claimed Sec. xx. to be a creditor upon the estate of the deceased person, or to the Court on the have any demand upon such estate by reason of any liability, p y" J' f "^'j and whose debt or claim may not ha ve been w holly allow ed by the said Master (a), to a pply to the said Court by motion. of which n otice s hall be given wi thin fourteen d ays after the filing of the Master's (a) Report, to have such claim allowed by the Court, either wholly or partially ; and it shall be law- ful for the said executors or administrators, and for any cre- ditor of the deceased person who may be authorized by special leave of the said Court so to do, to apply to the said Court by motion, of which notice shall be given within the time aforesaid, to have any debt or claim allowed by the said Master (o) disallowed by the Court, either wholly or partially ; Report when st- and at the expiration of fourteen days after the filing of the said report the same shall, except as to any debt or claim as to which any such notice as aforesaid may have been given, be absolute, as if the same had been confirmed by order of the Court. That upon the hearing of any such motion as aforesaid the See. xxi. said Court may either dismiss such motion, or may order the such motion. debt or claim to which such motion relates to be allowed or disallowed, as the case may be, and either wholly or partially, commencemeut of the sittings before or at the beginning of the next en- suing term, applications for special orders may be made to any judge of the Court, in the same manner as if the Orders of the Sth May, 1837, had not been made ; but that the orders which shall be made in any such interval by the Lord Chancellor, or by the Master of the Rolls, or by the Vice-Chancellor, shall, if not made by the judge to whom the applica- tion, if made during the ordinary sittings of the Court, would have been made pursuant to the directions contained in those Orders, be marked as having been made for such judge, and shall in the future proceedings of the cause be deemed to be the order of such judge in all respects save this, — that no order so made by one judge for another, under the circum- stances aforesaid, shall be reheard for the purpose of being discharged or varied otherwise than by the Lord Chancellor. And by the Order of the Sth August, 1842, it is provided, that the said 15th Order of the Sth May, 1837, shall extend to applications for special orders to be made, in the interval therein mentioned, to, and also to orders to be made in such interval by, any judge of the Court of Chancery, as such Court was then constituted ; and that, subject to the provisions of the said 15th Order of the Sth May, 1837, the said Sth Order of the 11th November, 1841 (now discharged and replaced by Orders 1 and 2 of 29th October, 18S1, see ante, p. 49, and note (a)), shall not extend to applications and orders to be made in such interval as aforesaid, (a) See note (c), jupro,p. 197. 200 SIR GEORGE TURKER's ACT. [ClASS XXVI. Sec. XXII. Court may order debts, &c. to be paid, or accounts to be taken. 13&14V. C.35. or may direct further inquiry or further proceedings, by way of action or otherwise, touching such debt or claim, and after such inquiry or proceedings may, upon further motion, deal with such debt or claim as to the said Court shall seem just : Provided always, that no new evidence shall be received by the said Court upon the hearing of any such motion without special leave of the said Court. That in case a ny deb t or any certain liability shall have been allowed as aforesaid, and shall not within fourteen day s after the report has become absolute as to such debt or lia- bility, or after the same shall have been allowed by the said Court, be paid or pro vided for by appropriation to the satis- faction of the person who has established such liability, it shall be lawful for the said Court, by order , to be made, in case of a ny debt remaining due, upon the application by motion or petition of the person to whom the debt remains due, and on notice t o the executors or administrators, and in case of any certain liability remaining unprovided for by appropri- ation, upon the application by motion or petiti on of the person b y whom s uch liability has been established, or of the exe- cu tors or administ rators, and on notice b y the party applying to the other of them, t o order payment of the debts which may have been allowed and remain unpaid, and to provide for the certain liabilities whch may have been allowed and re- main unprovided for, in like manner as t he same could or might have been paid or provided for in a suit for that pur- pose instituted by bill, or "^t* r':-^'!'r Tt tn7lip"'^'r'^f"-(rt) t" take an account of the debts and certain liabilities allowed as afore- said 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 shall have the same force and effect and shall be prosecuted and carried on in like manner as a decree in a creditor's suit instituted by bill. That in case any contingent liability shall be allowed by the said report or by the said Court, it shall be lawful for the said Court, by order, to be made upon the application of the executors or administrators, by motion or petition, on notice to the person who may have established such contingent lia- Sec. XXIII. Orders as to con- tingent liabilities. Ct-ttj/l 02)(,.A^4_ (a) See note (c), supra, p. 197. Sect. 3.] sir george turner's act. 201 bility, to order such sum of money, part of the estate of the 13&14V.C.35, deceased person, as to the said Court shall seem just, to be set apart and appropriated for answering such contingent lia- bility, and to give such directions as the said Court shall think fit touching the payment of such sum of money into Court, and the investment thereof, and the payment, application, or accumulation of the interest or dividends thereof in the mean- time and until the same shall be required to answer such lia- bility, and when such liability shal l be ascertain ed or deter- mined to give such directions as to the payment of such sum out of Court as the said Court shall deem right : Provided always, that no order to be made as aforesaid shall in any manner bind the assets so appropriated as against the persons entitled to the estate of the deceased subject to the contingent liability ; and any_persQn intereste d in such appropriated as- sets may apply to the Court touching the same as he may be advised. That after the filing of such report as aforesaid it shall be Sec. xxiv. lawful for the said Court, upon the application of the execu- strata proceedings tors or administrators of the deceased, by order, to be made and admtaistia-" on motion, to restrain by injunction any proceedings at law '""■ 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 esta- blished contingent liabilities under the said order for which no appropriation may have been made. That in case no debt or liability, or no debt or liability Sec. xxv. other than a contingent liability, shall have been allowed as afforded to exe- aforesaid, or in case any debt or liability other than as afore- nistrators. said shall have been allowed as aforesaid, then after the same shall have been paid or provided for by appropriation as aforesaid, all payments made by the executors or administra- tors, or any of them, on account of the estate of the deceased person, and all dispositions of such assets made by them or any of them on account of such estate, shall, 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 contin- gent liability, for which no such appropriation as aforesaid may have been made, be as good and effectual as if the same had been made under a decree of the said Court : Provided 202 SIR GEORGE TURNER'S ACT. [Cl^SS XXVI. 13&UV. C.35. always, that nothing herein contained shall in any manner affect or prejudice 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 disposed of, or against the per- sons to whom such payment or disposition may have been made, or against any assets appropriated under the provisions of this Act, and the appropriation of which, if made under a decree of the said Court in a suit to which he was not a party, would not have been binding upon him. That all d ecrees and orders m ade under the provisions of this Act shall be subject to rehearing, appeal and r eview , and may be di scharged and v aried in the same and the like manner as decrees and orders of the said Court made in suits instituted by bill. Sec. XXXIII Rehearing and appeal. 15 & 16 V. c. 86 Co). Sec. XLV. Order for admi- nistration of per- isonal estate. Sect. 4. — The Improvement of the Jurisdiction of Equity Act {}b ^ \Q Vict. c.SQ). It shall be lawful for any person claiming to be a creditor , or a specifi c p ecuniar y or re siduary Ipgate e. or the next of kin, or some or one of the next of kin, of a deceased p erson, to a pply for and obtain as of course, without bill or claim filed, or any other preliminary proceedings, a summons (h ) from the Master of the Rolls or any of the Vice-Cnancellors, r equiring the executor or administrator, as the case may be, of such deceased person, to attend before him at chambers , for the purpose of s howing cause w hy an order for the admi- n istration of the personal estate o f the deceased should not be granted ; and upon proof by affidavit nf the due service (a) This Act is known as " The Improvement of the Jurisdiction of Equity Act." For its title and commencement, and the power thereby conferred of making general orders, and a provision in cases of mistake in the practice thereunder, and for the interpretation of certain words therein contained, see antt, p. 40, note (A). Proceedings for the admi- nistration of estates under this Act are to be made a t chambers. Notice of 10th November, 1852, Art. 5, ante, p. 102. For the summary mode of proceeding b\j executors and administratirs, see ante, p. 196, and note (a). (fc) For the form of summons, see Order 42 of 7th August, 1852, infra ; and for the regulations as to its preparation, sealing, leaving copy at chambers, filing duplicate at the Record and Writ OfBce, service of copies, appointment of new time for attendance, indorsement and re-service, see Orders 3, 4, 5, and 6 of 16th October, 1852, ante, pp. 104 and 105. Sect. 4.] improvement of jurisdiction of equity act. 203 of such suramons, or on the ap pearance (a ) in person, or by 15&16V.C.86, his solicitor or counsel, of such ex ecutor or administ rator, and upon proof by affidavit of such other matters, if any, as suc h j udge shall rec [ uire, it shall be lawful for such judge, if in his discretion he shall think fit so to do, to make the usual order ( b) for the administratio n of the estate of the deceased, with such variations, if any, as the circumstances of the case may re- quire ; and the order so made shall have the force and effect of a d ecree to the like effect made on the h earing of a cause or claim between the same parties ; provided that such judge shall have full disc retionar y power to g rant or refuse such order, or to give any special directions touching the carriage or execution of such order, and in the case of applications for any such order, by t wo or more d ifferent p ersons or class es of persons, to g rant 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 shall think proper, the c arriage of the order may su bsequen tly be given to s uch party interested, and upon such terms as the judge may direc t. The summons to be obtained under section 45 of the above 7 Aug. 1852. Act, may be in a form similar to the form set forth in schedule Ponnof sum-" (E.) to these orders, with such variations as the circumstances ™™'- of the case may require. SCHEDULE (E). " Form of Summons. In Chancery. In the matter of the estate of John Thomas, late of the parish of A., in the county of B., deceased. Joseph Wilson against William Jackson. Upon the application of Joseph Wilson, of Russell-square, in the county of Middlesex, Esq., who claims to be a creditor upon the estate of the above-named John Thomas, let William Jackson, the executor of the said John Thomas, attend at my chambers [in the Rolls-Yard, Chancery-Lane, Middlesex], [or, at No. — , (a) Parties are fo enter appearances in the Record and Writ Office, and give notice thereof, before they are heard in chambers. Order 7 of 16th October, 1852, ante, p. 105. (6) For the form of the usual order, see ante, p. 90. mons to be filed in Recoid Office, SOdf IMPKOVEMENT OF JURISDICTION OP EaniTY ACT, [CtASS XXVI, 7 Aug. 1852. Square, Lincoln's Inn, Middlesex], on the day of , at of the clock in the afternoon, and show cause, if he can, why an order for the administration of the personal estate of the said John Thomas by the High Court of Chancery should not be granted. Bated the day of , 1853. John Romilly, Master of the Rolls, or, G. J. Turner, Vice-Chancellor, or, Richard T. Kindbrslet, Vice-Chancellor, or, James Parker, Vice-Chancellor. Note. — If the above-named William Jackson does not attend, either in person or by his solicitor, at the time and place above men- tioned (a), such order will be made in his absence as the judge may think just and expedient. This summons was taken out by A. and B., of Lincoln's Inn in the county of Middlesex, solicitors for the above-named Joseph Wilson. 15&16V.C.86. A duplicate or copy of such sutnmons shall, previously to DupUcaS^uni- ^^ service thereof, be filed in the Record Office of the said Court; and no service thereof upon any executor or adminis- /jtrator shall be of any validity, unless the copy so served shall be stamped with a stamp of such office, indicating the filing thereof (b) ^ and the filing of such summons shall have the same effect with respect to lis pendens (c) as the filing of a bill or claim. Sec. XLVii. It shall be lawful for any person claiming to be a creditor nistration oflreai of any d ecease d person, or interested under his will, to apply estate, ur«»-^j^ ^^^ ^^^ obtain in a summary way, in the manner hereinbefore provided with respect to the personal estate of a deceased person, a n 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 (rf ), who are b y the will empowered to sell s uch real estate, and authorized to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate ; and all the provisions hereinbefore con- tained with respect to the application for such order, in rela- {a) Where the time for service is extended under Order 6, ante, p. 105, this note will be altered In the manner pointed out in the note to the summons at p. 103, ante. (b) And see Order 4 of 16th October, 1852, ante, p. 105. ( (•) With respect to lis pendens, see ante, p. l'84i, note (o). (<2) As to parties to suits concerning real estate vested in trustees, see now 15 & 16 Vict. c. 86, s. 42, ante, p. 40. Sect. 4.] improvement of jurisdiction of equity act. 205 tion to the personal estate of a deceased person, and consequent IS & 16 V. c. 86. thereon, shall extend and be applicable to an application for ' such order as last hereinbefore mentioned with respect to real estate. CLASS XXVII. THE TRUSTEE ACTS 1850 AND 1852(o). That an order, under any of the hereinbefore contained pro- 13 & 14 V. visions, for the a ppointment o f a new trustee or trustees, _ *xxxvm i or_concernina any lands, stock or ch ose in actio n, subject to who may apply ° , ■' , Z — : ; ■' for orders. a trust, may be made upon the application of any person (a) In accordance with the plan of this work, the only provisions of these Acts intended to he treated of are those relating to the practice of the Court for carrying the Acts into effect. (6) This Act is intituled " An Act to consolidate and amend the Laws relating to the Conveyance and Transfer of Real and Personal Property vested in Mortgagees and Trustees j" but in citing it, it is sufficient to use the expression " The Trustee Act, 1850 j" see s. 58. It received the royal assent on the 5th August, and came into operation on the 1st November, 1850 The meaning of certain words used in the Act is defined by s. 2, which it is not thought necessary to set out here. On the subject of the Trustee Acts, the Chancery Commissioners in their Report of the 27th January, 1852, at p. 12, say : " The important Acts introduced by Sir Edward Sugden" (now Lord St. Leonards) " con- solidating; and amending prior statutes, commencing so far back as the reign of Queen Anne, enabled the Court to deal with trust estates, and the appointment of new trustees, and with the estates of persons under disability, upon summary application by petition. These Acts, so far as they relate to trust estates, have been consolidated -and extended by the recent Act introduced by Mr. Headlam. The provisions of these statutes are acted upon to a very great extent" These provisions have since been extended by the IS & 16 Vict. t. 65, which received the royal assent on the 30th June, 1852. (c) This section, stating who are the persons entitled to apply for summary orders under this Act, does not make any material alteration in the law as it was enacted by the 12th (11th) sect, of 1 Will. 4, m. 60, Headlam's Trustee Acts, p. 6), note (a), 2nd ed. 206 THE TRUSTEE ACTS. [ClASS XXVII. 13Scl4V.c.60. be neficial ly interested (a) in such lands(6), stock or chose in action, w hether und er disability or n ot, or up on the applica- tion of any person dul y appointed as a trustee t hereof; and that an orde r under any of the provisions hereinbefore con- tained, concerning any lands, stock or chose in action, subject to a mortgage, may be made on the application of any person b eneficially interested in the e quity of redemption, w hether under disability or not, or of any person interested in the monies s ecured by such mortgage. That when any person shall deem himself entitled to an order under any of the provisions hereinbefore contained, either from the Lord Chancellor, intrusted as aforesaid, or from the Court of Chancery, it shall be lawful for him to exhibit before any one of the Masters (c) of the High Court of Chancery, a statement of the facts (rf) whereon such order Sec. XXXVIII. Power to proceed at chambers in the first instance. (a) New trustees are persons " absolutely entitled," within the meaning of the 23rd sect of the Act ; so that they are proper persons to make an application under this section, Re Law, 4 Bea. S09 ; Ex parte Russell, 1 Sim. N. S. 404 ; but a person beneficially entitled only to a life interest cannot make the application, in which respect the present Act differs from the 1 Will. 4, c. 60, ib., and Re King, 10 Sim. 605. (h) In the case of a decree for the sale of land, the application should be by the purchaser, and not by the party entitled to the purchase- money ; see Robinson v. Wood, 5 Bea. 246 ; Billing v. Webb, 1 De G. & S. 716; Walters v. Jackson, 12 Sim. 278. In Stilwell « Mellersh, 4 My. & Cr. 581, it was held that the proper course for a purchaser under a decree to take to procure a conveyance from a necessary party, was to move against that party that he be ordered to convey, and not to move against the plaintiffs that they be ordered to procure him to convey. The Court, said the Lord Chancellor, is the vendor ; and see Re Blake, 3 Jo. & Lat 265. But in the case of a decree for a sale on the application of an equitable mortgagee, the mortgagor has been held to be a trustee for the mortgagee, and not for the purchaser. King ii. Leach, 2 Hare, 57 i and see Barfield ii. Rogers, 8 Jur. 229. In Warburton v. Vaughan, 4 You. & C. 247, the order for the conveyance of the real estate of a deceased debtor to purchasers was made on the petition of the executor, who was a defendant Where the executor of a mortgagee had been paid in the interval between the order for reference and the application for a con- veyance, the petition was amended by making it the petition of the mortgagor. Re Manifold, 4 Hare, 308 ; and in a case where the petition was presented by the plaintiffs who were interested in the purchase- money, and it was qbjected that it ought to have been presented by the purchasers, permission was given to make them co-petitioners, Rowley v, Adams, 14 Bea. 130. (c) Sinca the 15 & h6 Vict c. 80, by which the office tof Master was abolished, md the Masw^ of the Roll^ and Vice-Chance lors were em- powered tc sit at chambers (see Class II sect 2, ante, p. 18, and Class XVII., ant , p. 98), applications under the Trustee Acts 850 and 1852 are to be m ide at chambers, Notice of 10th November, 18i 2, Art 4, ante, p. 102. (d) No states of facts are now to be brought in ; but, when directed. Class XXVII.] the trustee acts. 207 is sought to be obtained, and adduce evidence in support i3&l4V.c.60. thereof; and if such evidence shall be satisfactory to the said Master (a), he shall, at the request of the person adducing such evidence, give a certificate under his hand of the several ma- terial facts found by him to be true, and of his opinion that such person is entitled to an order in the form set forth in such certificate. That any person who shall have obtained such certificate sec. xxxix. may apply by motion to the Court of Chancery (o), or to O'^er thereon, the Lord Chancellor, intrusted as aforesaid, for an order to the effect set forth in such certificate, or for such other order as such person may deem himself entitled to upon the facts found by the Master (a). That any person or persons entitled in manner aforesaid te_ Sec XL. a pply for an orde r from the said Court of Chancery, or from by petittonTo'the the Lord Chancellor, intrusted as aforesaid, may , should he in°s"tance. so think fit, pr esent a p etitio n (A) in the first instance to the Court of Chancery (a), or to the Lord Chancellor, intrusted as aforesaid, for such order as he may deem himself entitled to, and may give e vidence by affidavit (c ) o r otherwise , in support of such petitio n before the said Court (a), or the copies, abstracts or extracts of documents, and pedigrees and concise statements, are to be supplied for the use of the judge and his chief clerk J and where so directed, copies are to be handed over to the other parties, see Order 23 of 16th October, 1852, ante, p. 108. (a) See note (c), ante, p. 206. (b) The mode of proceeding before the judges at chambers (see supra, note (o)) is by summons in the form given, on(e, p. 103 ; and for the sub- sequent proceedings thereon, see generally, ante, Class XVII., ante, p. 98. Although applications under these Acts are directed to be made at chambers, yet in cases of difficulty they will be adjourned for discussion in Court, and then the proceeding must be in the mode pointed out by the Act, i. e. by petition, and not by motion, see Evelyn v. Forster, 8 Ves. 96 ; except in the cases provided for by s. 43, infra, p. 208 ; and see note (t/). The petition should be entitled in the matter of the Act as well as in the matter in question, Re Law, 4 Bea. 509 ; and see Ex parte French, 2 Jones & L. 243. (c) On an application for vesting property in a new trustee, see May- nard's Settlement Trusts, 16 Jur. 1084. Where the executors named in the will of a deceased trustee refuse to take out probate, the affidavit should state not merely that fact, but that application has been made to them to transfer the stock in question, and to take the necessary steps for that purpose, and that they have refused, Ex. Winter, 5 Russ. 284J For the proper evidence in case of escheat, see Ex. Tyson, 1 Jur. 472. Where the application is for the appointment of new trustees, they must join in the petition, or appear and consent, Re Robinson's Trust, IS Jur. 187 ; or their consent to accept the office must be given in writing, Re Battersby's Trust, 16 Jur. 900 ; and must be verified by affidavit. 208 THE TRUSTEE ACTS. [ClASS XXVII. 13&14V.O.60. Lord Chancellor, intrusted as aforesaid, and may serve such person or persons with notice of such petition as he may deem entitled to service thereof(a). Sec. XLi. That upon the hearins of any such motion or petition, it upon petition. shall be lawful for the said Court, or for the said Lord Chan- cellor, should it be deemed necessary, to direct a reference to nnnnfthf . A/Tnntnrc in 5ii-i1|»;Bfy ^f.^ pf ffip C^nrt pf '^bri n - ■eery- to inquire into any facts which require such an investi- gation, orjt shall be lawful for the said Court, or for the said Lord Chancellor, to di rect such mo tion or petition t o stand over, to enable the petitioner or petitioners to adduce evidence or f urther evidenc e before the said Court, or before the said Lord Chancellor, or t o enable notice or any f urther notic e of such motion or petition to be s erved upon any person or per- sons. Sec. XLll. That upon the hearing of any such motion or petition, whe- miss petition with ther any certificate or report from a Master (i) shall have been obtained or not, it shall be lawful for the Court, or the Lord Chancellor, intrusted as aforesaid, to dismiss such mo- tion or petition, with or without costs (c), or to make an order thereupon in conformity with the provisions of this Act. Sec. XLiii. That whensoever in any caus p nr rmtttpr^ either by the evi- orderinacause or dence adduced therein, or by the admissions of the parties, or matter. ^^ ^j^^ ^gp^^j ^f ^^g gf tj,e Masters (6) of the Court of Chan- cery, the facts necessary for an order under this Act sh all appear to such Court to be sufficiently prove d, it shall be lawful for the said Court, either upon the hearing of the said cause, or of any petit ion or motio n (d) in the said cause or matter (e), to make such order u n der this Act . (a) A trustee reiiising to convey need not be served with the petition, Re The Third Burnt Tree Building Society, 16 Sim. 296. As to infant trustees, see Ex parte Cant, 10 Ves. 55i ; Re Bradburne, 12 Law J. 353 ; and as to trustees out of the jurisdiction. Ex parte Hughes, 1 Jo. & Lat. 32. In an application made under the escheat clause (s. 46), it is not necessary to give notice to the Attorney-General, Re Tyson, 1 Jur. 281. All parties interested must be served with notice of subsequent appli- cations to the Court, Ex parte Yates, 11 Jur. 33 ; Re Thomas's Trust, 15 Jur. 187. (6) See note (c), supra, p. 206. (e) See Re King, 10 Sim. 605, and s. 51 and note thereto, infra. (d) But not by motion of course, Smith v. Boucher, 16 Jur. 1154. (e) Where an infant heir is declared by a decree of the Court to be a trustee for a purchaser, the Court will direct a conveyance by the same decree, Walter ». Merry, 6 Sim. 328 ; Broom v. Broom, 3 Mylne & K. 443 ; Miller ii. Knight, 1 Keen, 129 ; Hanson v. Lake, 2 Young & C. C. C. Class XXVII.] the trustee acts. 209 That whenever any order shall be made under this Act, l3&l4V.c.60. either by the Lord Chancellor, intrusted as aforesaid, or by sec. XLiv. the Court of Chancery, for the purpose of conveying or c/rtainaUegations assigning any lands, or for the purpose of releasing or dis- evidence onhe^ posing of any contingent right, and such order shall be ™»"«»'i«e^*' founded on an al legation of the pe rsonal incapacity o f a trus- tee or mo rtgagee, o r on an a llegation that a t rustee or the heir or devisee of a m ortgagee is out of the jurisdiction of the Court of Chancery, or cannot be found, or th at it is un- certain w hich o f several trustees, or which of several devi- sees of a mortgagee, was the s urvivor, or w hethe r the last trustee, or the heir o r l ast survivi ng de visee o f a mo rtgage e, be living or dead, or on an allegation that any trustee or mort- gagee has died intestate with out an heir , or has died and it is no t know n who is his hei r or devisee, then in any of such cases the fact that the Lord Chancellor, intrusted as afore- said, or the Court of Chancery, has made an order upon such an allegation, shall be c onclusive evidence o f the matter so alleged in any Court of law or equity, upon any question as to the legal validity of the order (a) : Provided always, that n gthing herein contained s hall pre vent the Court of Chancery directing a reconveyance or rea ssignmen t of any lands, con- veyed or assigned by any order under this A ct, or a redis- p osition of any c ontingent right conveyed or disposed of by su ch order ; and it shall be lawful for the said Court to direct 328 ! and cannot be made upon, petition before the hearing of the cause, see Burr v. Mason, 2 Sim. & Stu. 11. If, however, the direction to con- vey cannot, according to the ordinary practice of the Court, be made contemporaneously with the general decree, a separate petition or mo- tion under the Act is necessary ; see Fellowes v. Till, 5 Sim. 319 ; Pry- tharch v. Havard, 6 Sim. 9 ; Anon., I Young & C. Ex. 75 ; Callaghan V. Egan, 1 Dru. &. Wal. 187 , Parker v. Biirney, 1 Bea. 492 ; Walters v. Jackson, 12 Sim. 278; King v. Leach, 2 Hare, 57 ; Cocke)! v. Pugh, 6 Bea. 293. (a) This provision it is said will materially add to the value of the proceedings under the Act ; and with respect to all the Acts enumerated in this section, it is anticipated that no conveyancer will be entitled to demand any proof of them to establish that the Court was justified in making an order under the Act ; but it does not establish the fact of a person being a trustee, Headlam's Trustee Acts, 67, note (n), (2nd ed.). Considering the manner in which these orders are obtained ex parte, this section appears to me to have removed in a great measure the only real check upon them — that if the allegations were unfounded the order could not be maintained, and that upon a sale the purchaser would re- quire the evidence upon which the order was made. How the Courts will deal with such a case as against a purchaser remains to be seen. Sug- den's Real Property Statutes, 398, note (I). P 210 THE TRDSTEE ACTS. [CtASS XXVII. Sec. XLVIII. Money of infants and persons of unsound mind to be paid into Court. 13&14V. C.60. any of the parties to any suit concerning such lands or con- tingent right, to pay any costs occasioned by the order under this Act, when the same shall appear to have been improperly obtained. That where any i nfant o r person of u nsound mi nd shall be entitled to any money payable in discharge of any lands, stock or chose in action, conveyed, assigned or transferred, under this Act, it shall be lawful for the person by whom such money is payable, to pay the same into the Bank of England, in the name and with the privity of the Accountant- General, in tr ust in a ny cause then depe nding 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 disposuion of the said Court ; and it shall be lawful for the said Court, upon petition in a summary way, to order any money so paid to be inve sted in the public funds, and to order payment or distri bution thereof, or payment of the dividends thereof, as to the said Court shall seem reasonable ; and every cashier of the Bank of England, who shall receive any such money, is hereby required to give to the person paying the same, a receipt for such money, and such receipt shall be an effectual discharge for the money therein respectively expressed to have been received (a). That where any person shall, under the provisions of this Act, apply to one of the Masters(i) of the Court of Chancery in the first instance, and adduce evidence, for the purpose of obtaining the certificate of such Master (b), as a foundation for an order of the said Lord Chancellor, intrusted as afore- said, or the said Court of Chancery, it shall be lawful for the said Master (6) to order service of such application upon any person, or to dismiss such application, and to direct that the costs of any persons consequent thereon shall be paid by the person making the same ; and all orders of the Master (6) under this Act shall be enforced by the same process as orders of the Court made in any suit against a party there- to (c). Sec. L. Powers of the Masters. (o) This section is nearly the same as the 14th section of the 1 Will. 4, c. 60, but it is made applicable to persons of unsound mind as well as to infants, (6) See ante, p. 206, note (c). (c) For the mode of enforcing orders against a party to a suit, see Smith's Plandbook, S64 ; and see Mackenzie v. Mackenzie, 5 De G. & S. ClASS XXVII.] THE TRUSTEE ACTS. 211 Tliat the Lord Chancellor, intrusted as aforesaid, and the 13&14V.C.60. Court of Chancery, may order the costs and expenses of and sec. li. relating to the petitions, orders, directions, conveyances, as- out of The estate' signments, and transfers to be made in pursuance of this Act, °^ otherwise. or any of them, to be paid and raised out of or from the lands or personal estate, or the rents or produce thereof, in respect of which the same respectively shall be made, or in such manner as the said Lord Chancellor or Court shall think proper (a). That upon any petition under this Act being presented to Sec.Liii. , the Lord Chancellor, intrusted as aforesaid, or to the Court rected. ( of Chancery, it shall be lawfyl for the said Lord Chancellor, or the said Court of Chancery, to postpone making any order upon such petition until the right of the petitioner or peti- tioners shall have been declared in a suit duly instituted for that purpose (5). 342 (a case under this Act), in which an attachment was discharged on the ground that the title of the affidavit of service of the order did not follow the title of the order. (o) On the rec onveyanc e of a mortgaged estate, the cos ts of a peti tion under this Act must be home by the mortgagor or his estate , although occasioned by the infancy of the heir of the mortgagee," Kx parte Om- maney, 10 Sim. 298 ; or the absence of one of his devisees, King v. Smith, 6 Hare, 473. In the case of a sale, the i nfant li eir of the vendo r will have the c osts out of the ve ndor's personal estat eT the purchaser be aring his own c osts, Hanson v. Lake, 2 Young & C. C. C. 328 ; and see Kobinson v. vV^ood, 5 Bea 246; but the purchaser was allowed his costs in King ii. Leach, 2 Hare, 57 ; and see Stilwell v. Mellersh, 4 Mylnfi & C. 581, in which case (although it does not so appear by the report) the costs were eventually paid out of the fund. A trustee who has been ordered to convey is entitled to his gosts. Ex parte Cant, 10 Ves. 554 ; Re The I'faird Burnt Tree Building Society, 16 Sim. 296 ; but if he has im properly made the p etition necessa ry, he will be ordered t o pay the costs, Manners v. Charlesworth, Sugden's Acts by Jemmet, ISB, note (a), (2nd edition). A re sponde nt will be e;ititled to his costs of re sisting even a successful application, if th ere was a s ufficient reason for his so doing. Ex parte Winter, 5 Kuss. 284 ; but not if his resistance is i mproper , although he is an infant. Re Bradburne, 12 Law J. 353. The Court under this section has jurisdiction to order the costs of ap- pointing a new trustee of real estate to be a charge upon the inheritance. Ex parte Davies, 16 Jur. 882 ; but it has no jurisdiction under this sec- tion to order payment of any costs incurred in proceedings under the former Act, Re Fulham, 15 Jur. 69. (6) The 12th section of the 1 Will. 4, c. 60, empowered the Court in certain cases to direct a bill to be filed to establish the right j and under that Act Lord Brougham (as stated in 2 Mylne & K. 625), in a case where the petitioner's title depended upon the fact that the debts and legacies of the testator had been paid, and that a certain person was dead without issue, refused to make an order on petition, on the ground that the case was one of too much complication, see Re Merry, 1 Mylne & K. 677 J on the other hand, Lord Lyndhurst, in a case where the ap- p 2 212 15 & 16 V. e. 55 (o). Sec. xrii. Orders having the effect of eon- Teyances, &c. chargeable with stamp duties. THE TRUSTEE ACTS. [ClASS XXVII. That every order to be made under the Trustee Act 1850, or this Act, which shall have the effect of a c onveyance o r as- signment of any lands, or a t ransfer o f any such stoc k as can only be tra nsferred by stamped deed , shall be chargeable with the like amount of kamp duty as it would have been chargeable with, if it had been a deed e xecuted by the per- son or persons seised or possessed of such lands or entitled to such stock ; and every such order shall be duly stamped for denoting the payment of the said duty. plicants claimed in respect of interests devised in remainder after the de- termination of prior estates tail which had failed, thought the discretion might be safely exercised, and made an order on petition, Re The De Cliffords' estates, 2 Mylne & K. 624. It has been held that the summary jurisdiction does not apply to a case in which the fact of lunacy is con- tested, Re Walker, Craig & P. 147 ; nor to a case in which it was sought to declare the infant heir of the deceased partner a trustee for the sur- vivor, Re Burt, 9 Hare, 289. But in a case of constructive trusts, where the evidence was simple, it was held that the jurisdiction might be ex- ercised by petition, Re Angelo, 5 De Gr. & S. 278 ; and see the cases under the 10 & 11 Vict. c. 96, ante, p. 192, n. (;. 86, ss. 7, 8, and Orders 5 and 6 of 7tli August, 1852, ante, p. 55; as to Copies of Documents for the use of the Judges in Chamhers and their Chief Clerks, see Order 23 of the 16th October, 1852, ante, p. 108 ; and as to Office Copies of Special Cases, see 13 & 11 Vict. c. 35, s. 10, ante, p. 181.] From and after the twenty-eighth day of October one thou- 15 & 16 V. sand eight hundred and fifty-two, the several allowances for c 87(a). copying provided for and directed to be paid to the clerk of Sec. v. 1 ,1 /. - 1 ■ ,,/./v^i- Allowances for reports, the clerks of entries, the assistant clerk of affidavits, copying to cease, , I 1 n , . 1 , . . . ™* power to the clerks 01 the examiners, and the copying or writing Lord chancellor clerks of the Masters in Ordinary of the said Court by any tions as to copies. Act or Acts of Parliament now in force, shall cease ; and it shall be lawful for the Lord Chancellor, by any order or orders to be from time to time made by him, to make such regulations as to the making and delivering copies of the pleadings and other proceedings in the said Court, and of the documents relating thereto, and the manner in which such copies should be paid for, and the amount of charge for the same, and by whom the amount to be so charged should be received, as may from time to time seem expedient. All office copies and other copies of proceedings and docu- 10 Nov. 1852. ments shall be counted after the rate of ninety words to the chanceUor°M to aty • "the folio J 6), and w here the same, or any portion thereof, shall be counting folios of written with columns containing figures, in every such case, each figure, or combination of figures, representing a dis- ^ (o) " An Act for the Relief of the Suitors of the High Court of Chan- cery." Royal assent, 1st July, 1852. (6) And see Order 31 of 21 December, 1833. 214 OFFICE COPIES AND OTHER COPIES. [ClASS XXVIII. 25 Oct. 1852. Ord. I. How and when copies of proceed- ings are to be made. (Exception.) 10 Nov. 1852. tinct d enominat ion, shall be counted as one word^ therefore^ £4151 : 16i. 9d. would count as three words (a). In lieu of copies of pleadings and other proceedings in the Court of Chancery, and of the documents relating thereto, being made and delivered by officers of the Court at the office in which they are filed or left, copies of such pleadings, proceedings, and documents (save as hereinafter excepted), are to be made, delivered, charged, and paid for according to the following regulations : — 1. The fo llowing copies are exempted from this order, that is to say, office copies of proceedings filed in the Report Office (6 ) ; of fice c opies of answers, pleas , and d emurrers ; office copies ot ae positions o f witnesses, and e xaminatio n of parties to be made fo r and t aken by t he party on whose be- _ half such d eposition s and e xaminatio ns have been taken ; office copies of affidavits to be made for and t aken by the p arty filing the same ; and office copies of affidavits to be taken under Order XXXVII. of 16th October, 1852 (c). 2. The party or his solicitor re quiring any cop y, save as hereinbefore excepted, is to make a w ritten application, to be delivered to the party by w hom the copy is to be fur- nished, or his solicitor, with an u ndertakin g to pay the proper charges. 3. TJpon such re quisitio n being made with such undertak- ing as aforesaid, copies o f such pleadings, proceedings, or documents, are t o be made by the party o r his solicitor filing or l eaving the s ame, or who,*^ under the first rule, may hav e taken office cop ies thereof . 4. The copies are to be ready to be d eliver ed at the expi- (o) This order, so far as it relates to the counting of figures in co- lumns, is a repeal of the latter part of the 31st Order of 21 December, 1833. (6) Any person is at liberty to take an office copy of so much only of any decree, order, report or exceptions as he may require. 3 & 4 Will. 4, c. 94, s. 10. Office copies of reports, exceptions to reports, and petitions (Order 30 of 21 December, 1833), and copies of affidavits (Order 127 of 8 May, 1845), are to he ready for delivery within forty-eight hours after the same are bespoke. (c) That is to say, affidavits by claimants coming in, pursuant to ad- vertisements issued from the judges' chambers. See the Order, ante, p. 117. Every person, although not a party to the suit, has a right to office copies. Per Master of the Rolls, in St. John v. Stirling, 7 Law. J. 190. Class XXVIII.] office copies and other copies. 215 ration of fo rty-eight hours afte r the delivery of such request 25 Oct. 1852. and undertaking, or within such other time as the Court may in any case direct, and are to be delivered accordingly upon demand and payment of the proper charges. 5. The charges for all such copies are to be at the rate of id. per folio . 6. C opies of b ills of costs are to be made side for side, so as t o correspond with the bills of c osts l eft in the offic e. 7. The folios of all copies are to be numbered consecu- tively in the margin t hereof, and the name and address o f the party or solicitor, by whom the same is made, is to be .en- d orsed thereon in like manner a s upon the proceedint;s in the Court ; and such party or jolicitor is to be answerable for the same being t rue copies of the original, or of an office copy of the original pleadings, proceeding, or document, of which it purports to be a copy, as tlie case may be. 8. In cases of ex parte applications for injunctions , or writs of ne exeat regno , the ■gartymaking such application is to de- liver copies o f the a ffidavits upon which it is granted, upon p ayment of the pro per charges i mmediately upon the receipt of such wri tten re quest and undertaking as aforesaid^ or within such time as may be specified in such request, or may have been directed by the Court. 9. A ny party or solicitor who has ta ken any office copy mentioned in Rule 2 ( a), is to prfdin-" ^^-fl sff"'° ir rinm-)-, or to the judge's chambers, when_ESliuiied for the purpose of the proceedings to which the same relate. That all office copies, and copies to be furnished by parties Ord. ii. , . — rr-: — , ■■ , . /. . ^ How copies to be or their solicitors, shall be written on paper oi a convenient written. size (6), with a sufficient margin , and in a neat and legible manner, similar to that which is usually adopted by law sta- tioners; and in the case of copies to be furnished by parties or their solicitors, unless so written , the parties or solicitors fur- nishing them shall not be entitled to b e paid f or the same. That in case any solicitor who shall be required to furnish „ ,. 9'*- ^^^i , •' n c 1 Solicitor neglect- any such copy as aforesaid shall either refuse, or for two clear ing to furnish ' , , ,. . » , copies not en- days from the time when the application tor such copy shall titled to costs. (o) Quare, whether this does not mean Rule 1, ante, p. 214. (6) Office copies are to be written o n foolscap paper, baajjajge, and to contain two folios on each page. Order 31 of 21 December, 1833. 216 OFFICE COPIES AND OTHEa COPIES. [ClASS XXVII, 25 Oct. 1852. Ord. IV. And time for pro- ceeding to be en- larged. Ord.V. Costs, 3 Nov. 1852. Notice of Master of tlie Rolls as to copies. 1 JvLyim^l^ Order IE. have been made shall neglect, to furnish the same, the person by whom such applicat ion shall be made shall be at liberty to pr ocure a copy fr om the office in which the original sha ll have been filed, in the same way as if no such application had been made to the solicitor, and in such case no costs shall be due or payable to the s olicitor so m aking default in respect of the copy or copies so applied for. That in case any solicitor by whom any such copy ought to be furnished shall neglect to do so for such two clear _days as aforesaid, or for one clear day, an addition of two clear days or one clear day, as the case may be, s hall be made to the period within which any proceeding which may have to be taken after obtaining such copy ought to be so taken, so that the person requiring such copy may be as little prejudiced as possible by such neglect as aforesaid. That the Ta xinpr Master shall not allow any cos ts in respect of any copy so taken as aforesaid, unless the same shall ap- pear to him to have been requisite, and to have been made with due care both as regards the contents and the writing thereof. The Master of the Rolls directs that all papers brought into his chambers shall be copied on f oolscap pape r b ookwi se, with a guard margin (not less than t hree quarters of an inc h wide). Tiauperis arXohxi ^icitoi shall teat ^eiote oftr ■ \eri6l\jo . y>vA sho^ such ■paTSona.fto.rwa.Td^ become euUtleA to diwes coals he islovay the. -U-rvytto ccp-ply tadopiei ■fAumiSil'^i 1}U th&paTty ii-rafe^ fa;^ ihe (JosU jnothl/Mi micitQC. ( 217 ) CLASS XXIX. TIME. [ For the Times of proceeding in particular cases, see the respective heads. ] The power of the Court tcenlarge or abridge the time for 7 Aug. 1852(a). doing any act, or taking any proceedings in any cause or ora. xlvi. ^, i_ -J. . .1 ' .' n .^ Power to enlarge matter, upon sucb, 11 any, terras as the justice 01 the case or abridge time. requires, is unaffected by these orders. The power of the Court and of the judge sitting in cham- igOct 1852(6). bers, to enlarge or abridge the time for doing any act or The°iike^'''''' taking any proceeding, and to give any special direction as to the course of proceeding in any cause or matter, is unaffected by these orders. That in case any solicitor, by whom any such copy( c) 25 Oct. 1852. ought to be furnished, shall neglect to do so for such two AddiUontVtime. clear days as aforesaid, or for one clear day, an addition of t wo clea r_days, or o ne clear d ay, as the case may be, shall be raade to the period within which any proceeding which may have to be taken after obtaining such copy ought to be so taken, so that the person requiring such copy may be as little prejudiced as possible by such neglect as aforesaid. The times of vacation (e) are not to be reckoned in the 2 Nov. 1850(d). computation of the time allowed for filing o r setting down vacaUons^Mt to be reckoned. (a) By the 15 & 16 Vict. c. 86, authority was given to the Court to make general orders for regulating the times of procedure in respect of the matters to which the Act relates, see ss. 63, 64 and 67. (fr) By the 15 & 16 Vict. c. 80, s. 38, authority was given to the Court to make general orders. for regulating the times of procedure hefore the judges sitting at chambers and their chief clerks, in respect of the matters to which the Act relates. (c) See Order 3, ante, p. 215. (d) This order was substituted for art. 2 of Order 14 of 8 May, 1845, which was discharged by Order 1 of 2 November, 1850. (e) For the times of vacation, see ante, p. 64, note (b). These may be altered by the Lord Chancellor by special order. Order 10 of 8 May, 1845. The times of vacation are also excluded from the computation of the times allowed for amending or obtaining orders for le ave to ame nd ^18 [Class XXIX. 2 Nov. 1850. e xception s for scandal, impoilinciiat ^a), or insufficiency, in cases where the time is not limited by notice given pursuant to the 13th of these orders (6). CLASS XXX. COSTS. 10 Dec. 1849. Order in cases of paupers. 15&16V.0.86. Sec. XVII. In cases of im- pertinence. [As to Costs under particular heads before treated of, see the respeC' tive titles.] That in all cases in which costs ar e ordered to be paid to a part y suing or defending in fn rmA ° \ . •' Sec. 11. fees or emoluments for their own use, and for their successors Fees to continue , . • rr' 11- II ■ payable until m their respective oihces, and their several and respective l. c. shall other- 1 , . .1.1111 wise direct, and clerks or agents, to continue to receive and take all and every to be paid into the fees and emoluments which have been accustomed to be * * • paid to them, until the Lord Chancellor shall by any order or orders otherwise direct ; and all such fees and emoluments as shall accrue and be received by such officers respectively, from and after the 28th day of October, 1852, shall be ac- counted for and paid by them respectively once in every month into the Bank of England, in the name of the Account- ant-General of the Court of Chancery, to be placed to the account there entitled " The Suitors' Fee Fund Account," the amount so received and paid by such officers respectively to be verified by the affidavit of the accounting party. All fees received by officers of the Court, under the pre- 23 Oct. 1852. ceding orders (/), are to be accounted for and paid by them certa?ns'feM to ^^_________^______^^^^_^__^_^____^^___^__^___„^_______^__ be paid into the Bank. (a) See infra, p. 231, note (6). (A) See infra, p. 238. (c) See in/ro, p. 246, note (a). (d) See infra, p. 227, note (o). (c) " An Act for the Relief of the Suitors of the High Court of Chan- cery," Royal assent 1st July, 1852. By s. 1, (for which see ante, p. 15,) no officer of the Court is thereafter to receive fees for his own use, but all officers are to be paid by salary j and by s. 3, (for which see ante. p. 17,) the officers of the Court are prohibited from taking gratuities. The Lord Chancellor is empowered to make general orders for carrying the Act into execution, and for altering and regulating the business of the officers of the' Court. See ss. 37 and 38. (f) That is to say, the fees to be taken under Order 1 by the chief 222 FEES AND STAMPS IN GENEKAC. [ClASS XXXI. 23 Oct. 1852. respectively, once in every month, into the Bank of England, * in the name of the Accountant-General, to be placed to the account there entitled " The Suitors' Fee Fund Account," the amount so received and paid by such officers respectively to be verified by the affidavit of the accounting party. 15&16V.C.87. It shall be lawful for the Lord Chancellor, by any order or Power to vary^, Orders to be from time to time made by him, to vary, reduce, lish fees, and to" or aboHsh all or any of the fees payable in relation to pro- coUectfon by *" ceedings in the Court of Chancery, and to substitute one or stamps. more fee or fees in lieu thereof (a), and to direct that all or any of such fees shall, from a day to be named in such order or orders, and thenceforth, be collected by means of stamps, to be provided and used in manner hereinafter mentioned, 7 Sept. 1852. That certain fees payable in relation to proceedings in the Certain fees' to be Court of Chancery shall, on and from the twenty-eighth day certain amounts" of October next, and thenceforth, be collected by means of stamps, to be provided and used as by the said Act is directed, and that the stamps for denoting the payment of the said fees shall be of the amounts set forth in the schedule hereto an- nexed. That this order be communicated to the Commis- sioners of Inland Revenue, so as that the said Commissioners may give the necessary directions for carrying the same into effect as is provided by the said Act, That the said Commis- sioners of Inland Revenue shall once in every month cause to ^ be paid into the Bank of England, to the credit of the Ac- countant-General of the Court of Chancery, to be placed to the account there entitled " The Suitors' Fee Fund Account," such sums of money as may have been received by them for the stamps hereinbefore mentioned, after deducting the costs, charges, and expenses incurred by them, or by their direction, in carrying such order into efTect, and all sums of money re- paid on allowance for spoiled stamps, and that notice of each such payment shall, at the time of making the same, be given clerks of the Master of the Rolls and Vice-Chancellors, for which see " Fees in the Judges' Chambers," infra, p. 230 ; the fees to be taken under Order 2, by the Registrars, for which see that head, irtfra, p. 238 ; and the fees to be taken under Order 3, by the Record and Writ Clerks, see that head, hijra, p. 234. (o) By the 15 & 16 Vict. c. 86, s. 63, the Court is empowered to make general orders for regulating the fees and allowances to the officers of the Court and solicitors, in respect of the matters to which that Act relates. And by the IS & 16 Vict. c. 80, s. 38, the Court is empowered to make general orders for regulating the fees and allowances to solicitors in respect of the matters to which that Act relates. Sect, 1.] fees and stamps in general. 323 by the Commissioners of Inland Revenne to the Accountant- 7 Sept. 1852. General of the Court of Chancery, who shall certify the amount of such payment to the Court. Schedule. One penny, fourpence, sixpence, one shilling, one shilling and six- pence, two shillings, three shillings, four shillings, five shillings, ten shillings, one pound, two pounds, thcee pounds, four pounds, five pounds, ten pounds. That from and after the first day of November next all the 25 Oct. 1852, fees now payable in relation to such proceedings in the said certain fees ato- Court as are mentioned in the first part of the first schedule !„ be''co'ue*ct°e'd1^y hereinafter contained (a) shall* be abolished ; and the fees s'^mps. specified in the second part of such schedule (6) shall be pay- able, and the same (save as provided by the seventh of these orders (c)) shall be collected, not in money, but by means of stamps denoting the amount of such fees, stamped or affixed, at the expense of the parties liable to pay the fees, on or to the vellum, parchment, or paper on which the proceedings in respect whereof such fees are payable are written, or printed, or which may be otherwise used in reference to such pro- ceeding. And where any of the fees specified in the second part of the said first schedule shall be payabl e in respect of any matter or thing to be done by any officer, or in any office of the Court, a nd it shall not have bee n customary to use a ny written or prin ted document or paper m reference to such mat- ter or thing, whereon the stamp could be affixed, the party (a) That is to say, the fees in the Master's Office, post, p. 232, note; in the Kegistrars' OiBce, post, p. 236, note (o) ; in the Report Office, post, p. 240, note (i) ; at the Entering Seats, post, p. 229, note (o) ; at the Affidavit Office, post, p. 227, note (a) ; at the Examiners, post, p. 229, note (6) ; at the Record and Writ Clerks, post, p. 233, note (o) ; at the Taxing Masters, post, p. 246, note (a) ; to the Doorkeeper, post, p. 228, note (a) ; to the Secretaries at the Rolls, post, p. 242, note (o) i in the office of the Accountant-General, post, p. 225, note (a) ; at the Chancery Subpoena Office, post, p. 233, note (a) ; and in the office of the Secretary of Decrees and Injunctions, post, p. 233, note (u). (b) That is to say, the fees in the Judges' Chambers, post, p. 231 i in the Masters' Offices, post, p. 231 ; in the Registrars' Office, post, p. 239 ; in the Report Office, post, p. 240 j for affidavits, post, p. 227 ; in the Examiners' Office, post, p. 229 ; in the Record and Writ Clerks' Office, post, p. 234; in the Taxing Masters' Office, post, p. 246 ; in the Lord Chancellor's Principal Secretary's Office, pott, p. 241 ; and in the office of the Secretary at the Rolls, post, p. 212. (c) See this order, post, p. 246. FEES AND STAMPS IN GENERAI.. [ClASsXXXI. 25 Oct. 1852. 3 Dee. 1852. Ord. I. Certain stamps upon adhesive paper. Ord. II. And to be affixed by the parties. Ord. III. And to be defaced by the officers of the Court. 15&16V.C.87. Sec. VII. Fees to be re- ceived by stamps on the docu- ments. or his solictor requiring such matter or thing to be so done, sh all make application for the same by a short note or me- morandum in writing, and a stamp denoting the arHount of the fee so payable shall be st^anijied on or a ffixed to such note or memorandum. That the Commissioners of Inland Revenue (a) do prepare stamps impressed upon adhesive paper, of the amounts fol- lowing ; that is to say, — Threepence, Fourpence, Eightpence, One Shilling and Fourpence, One Shilling and Sixpence, Two Shillings and Sixpence, and Two Shillings and Eightpence. That such stamps shall be affixed by the parties requiring to use the same on the vellum, parchment, or paper on which the proceeding in respect whereof such stamps may be re- quired is written, printed, or engrossed, or which may be otherwise used in reference to such proceeding. That every officer of the Court of Chancery who shall re- ceive any document to which a stamp shall be so affixed, shall, immediately upon the receipt thereof, obliterate or deface such stamp, by impressing thereon a seal to be provided for that purpose, but so as not to prevent the amount of the stamp from being ascertained, and no such document shall be filed or delivered out until the stamp thereon shall be obli- terated or defaced as aforesaid. From and after the day named in such order or orders (b), unless and until the Lord Chancellor shall otherwise direct, none of the fees mentioned in such orders respectively shall be received in money, but by a stamp denoting the amount of the fee which otherwise would be payable ; and where any fee shall be payable in respect of any document, such stamp shall, at the expense of the party liable to pay the fee, and in such manner and under such regulations as shall by any order or orders be directed, be stamped or affixed on the vellum, parchment, or paper on which the proceeding in respect whereof such fee is payable is written or engrossed, or which may be otherwise used in reference to such proceeding. (a) By the IS & 16 Vict. c. 87, s. 8, the Commissioners of Inland Revenue are directed upon the receipt of any order of the Lord Chancellor, to give the necessary directions for carrying the same into effect, and to provide everything that is requisite for that purpose ; and other revenue regu- lations are contained in the same and several following sections of the Act. By s. 9, (ante, p. 17,) the Lord Chancellor is empowered to direct certain oilicers of the Court to act in the sale and distribution of the stamps to be used under the Act (b) That is to say, the orders mentioned in s. 6, supra, p. 222. Sect. 1 & 2.} fees in accountant-general's office. 125 No document which by any order or orders to be respec- 15&16V.C.87. tively made as aforesaid shall be required to have a stamp gee. xii. impressed thereon or affixed thereto, shall be received or tevludSfieL'" filed, or be used in relation to any proceeding in the Court of «'»™p«'1- Chancery, or be of any validity for any purpose whatsoever, unless or until the same shall have a stamp impressed thereon or affixed thereto, in the manner directed by such order: Provided always, that if at any time it shall appear that any such document which ought to have had a stamp impressed thereon or affixed thereto has, through mistake or inadver- tence, been received or filed or used without having such stamp impressed thereon or a^xed thereto, it shall be lawful for the Lord Chancellor, if he think fit, to order that such stamp shall be impressed thereon or affixed thereto, and thereupon, when a stamp shall have been impressed on such document or affixed thereto, in compliance with any such order, such document, and every proceeding in reference thereto, shall be as valid and effectual as if such stamp had been impressed thereon or affixed thereto in the first in- stance. Sect. 2. — Fees in the Office oftheAccountant-General{a). It shall be lawful for the Lord Chancellor, if he shall see Sec.xxxix. n ,• ,1- 1/. 1 ii'iii ^"^^ ^^^ certain lit, to authorize and direct the first, second and third clerks duties of some of m each division of the office of the said Accountant-General, (a) By Order 6 of 25th October, 1852, {ante, p. 223,) the following fees in the ofBce of the Accountant-General are abolished from the 1st November, 1852 ; viz. £ s. d. Certificate of payment in under order 2 Ditto under Act of Parliament 4 Certificate of transfers into Court under order 2 Ditto under Act 4 Certificate of investment of principal money 3 6 Ditto of interest money 2 Certificate of sale of stock 2 6 Certificate of transfer of stock out of Court 1 6 Carried over 2 6 Deposit of Exchequer bills 5 Delivery out of ditto : 5 Investment of principal money in Exchequer bills 5 6 Ditto of interest money in ditto 4 Sale of Exchequer bills ,. • 5 Exchange of Exchequer bills ••.. S 226 FEES IN accountant-genekal's office. [Class XXXI. 15atl6V.c.87, from and after the twenty-eighth day of October, one thou- sand eight hundred and fifty-two, to continue to perform the acts or duties hitherto performed by such clerks, in addi- tion to the duties prescribed by Act of Parliament, as here- tofore, in exclusion of any other person, and to direct them to be paid such yearly salaries as the Lord Chancellor, with the consent of the Commissioners of her Majesty's Treasury, shall think just ; and it shall be lawful for the Lord Chan- cellor to fix the fees to be paid for such Acts as aforesaid, which shall be accounted for in like manner as the other fees now received in the office of the said Accountant-General. 25 Oct. 1852. That, subject to the superintendence and direction of the (Extract.) Accountant-General of the Court of Chancery, with the ap- The like. probation of the Lord Chancellor, the first, second and third clerks in each division of the Accountant-General's office, shall, from and after the said 28th day of October, 1 852, and until other order or provision shall be made in that behalf, continue to perform the acts or duties hitherto performed by such clerks, and which are mentioned in the said second schedule, in addition to the duties prescribed by Act of Par- liament as heretofore ; and such fees as are specified in the second schedule hereto shall be paid for such acts as afore- said, to be accounted for in like manner as the other fees now received in the office of the said Accountant-General, and to be collected by means of stamps in like manner as provided by Order VI. (a), and from and after the said 28th day of October, 1852, no other person shall perform such acts or duties. The Second Schedule to which the foregoing Order refers: — In the Office of the Accountant-General. £ s. d. 1. For preparing English power of attorney with afiSdavit, excludve of stamp duty 3 6 2. For preparing foreign power of attorney without affi- davit 030 3. For special power of attorney 5 4. For copies of accounts, debtor and creditor's dde, per folio, as to be explained by General Order . .003 5. Upon every application for a search . . . .050 (a) Ante, ^,223. Sect. 2 & 3.] fees for affidavits. 227 Sect. 3. — Fees for Affidavits {a). £ s. d. For filing every affidavit, with or without schedules or other papers thereto annexed, including ex- hibits, if any 2 6 For the copy of every affidavit, for each folio. .. . 4 Upon every application to inspect an affidavit. ... 6 Upon every application for the officer to attend with an affidavit or affidavits at the Lord Chan- cellor's, or at any of the Courts at Westminster or in London^ each day 10 (o) These fees are to be collected by meiins of stamps, Order 6, of 25th October, 1852, ante, p. 223. By Order of 22nd March, 1851, (ante, p. 220,) the following fees were to be received and taken by the Clerk of Affidavits and Assistant Clerks of Affidavits, from the 31st of that month ; viz. £ s. d. For every office copy of an affidavit (in lieu of the present fee of 4d. per side, and 4d. per side for registering), per folio.. 4 And by the same order, the following fees in the Affidavit Office were abolished from the same date ; viz. For registering every affidavit, for each side 4 For expunging impertinence from an affidavit 1 And by Order 6, of 25th October, 1852, (ante, p. 223,) the following fees in the Affidavit Office were abolished from the 1st November, 1852 ; viz. For filing every affidavit, with or without schedules, or other papers thereto annexed 4 For-the Registrar's or his deputy's hand to every copy of an affidavit, vrith or without schedules or other papers thereto annexed 1 For every search for an affidavit for each term 6d., with the liberty of reading it over, if found 6 For searching for, and taking an original affidavit off the file in order to attend the Lord Chancellor or Master of the Rolls therewith, or to be made use of in any Court 6 8 For attending therewith, at the Lord Chancellor's, or at any of the Courts at Westminster, or in London, each time .... 6 8 For examining the copy of every affidavit with the original, in order to make use of such copy as evidence in any other Court than the Court of Chancery 1 Taking affidavits for distringas 1 For carrying an original affidavit by the Registrar, or his deputy, to any assizes, for each day, including horse hire and expenses ■.. 1 1 For trouble, attendance, and taking security to return an original affidavit to the office, when by an order of the Court such original affidavit is directed to be delivered to an associate or clerk of assize, to be made use of at the assizes ....o 6 8 For every exhibit 2 6 a2 25 Oct. 1852. Ord. VI. 1st Schedule. Part II. ■ {,Extraot.) 228 FEES FOR AFFIDAVITS, ETC. [ClASS XXXI. 25 Oct 1 852. Upon every application for the officer to carry an £ s. d, original affidavit to any assizes, for each day, besides reasonable expenses of officer 1 For every deponent, affirmant, or declarant to an affidavit, affirmation or declaration sworn, af- firmed or declared in London, or within ten miles of Lincoln's Inn Hall 1 6 Upon any application fojCf^the officer to attend an invalid, including the 'attendance 10 Sect. 4. — Fees to Conveyancing Counsel, Accountants^ v. Merchants, Engineers, Actvaries, and other Scientific Persons. 15&16V.C.80. The allowances in respect of fees to such conveyancing To be regulated counsel, accountants, merchants, engineers, actuaries, and Master. Other scientific persons, shall be regulated by the Taxin g Master of the said Court, sub iect, to an appeal to the judge to whose Court the cause or matter shall be attached, whose decision shall be final. Sect. 6. — Fees to the Doorkeeper of the Court of Chan- cery {abolished) (a). (a) By the 15 & 16 Vict. c. 87, s. 27, tKe. office of doorkeeper was abolished from the 28th October, 1852 ; and-by Order 6, of 25th October, 1852, (onte,p. 223,) the following fees to tlfe Doorkeeper were abolished from the 1st November, 1852 j viz. ,. £ s. d. For every cause heard, on each side 13 In every further directions, ditto 13 In every exceptions, each set , 13 Every appeal, or rehearing, one side 13 Every plea, or demurrer, one side 13 Every guardian assigned 13 Out of 12. paid on setting down every petition 3 Every lunatic petition 3 Every witness examined vivi voce 1 6 Every prisoner by Ueas corpfis 2 6 Setting down causes to be heard 1 Setting down cause at Rolls 1 Term fee from Attorney General 1 10 Term fee from Solicitor-General 1 Upon swearing into offices befpre the Lord Chancellor 2 12 6 From each Queen's Counsel per term ,.,.....,,,. 1 12 Sect. S to 7.] fees in the examinurs'' office, etc. 229 Sect. 6. — Fees at the Entering Seats (a). Sect. 7. — Fees in the Examiners' Office (b). £ s. d. For filing interrogatories .; 7 For all office copies, per folio 4 For every witness sworn and examined, including oath, for each hour 5 For every witness sworn and examined abroad (besides coach hire and reasonable expenses) . . 17 If more than five miles from the Examiner's Office, for the first day 2 15 For every other day 2 2 For attending the Lord Chancellor or the Master of the Rolls with record, per day 10 For attending any Master at his office 10 (o) By Order of 22nd March, 1851, {ante, p. 220,) the following fees at the Entering Seats were abolished from the 31st of the same month ; viz. £ s. d. For every certificate on Master's report •>•. 1 For entering every attachment 2 And by Order 6 of 25th October, 1852, {ante, p. 223,) the following fees at the Entering Seats were abolished from the 1st November, 1852; viz. For every order or decree left for entry, containing 168 words on a side 6 For every certificate on Master's report 1 Entering every attachment 2 (i) These fees are to be collected by means of stamps ; Order 6 of 25th October, 1852, ante, p. 223. By Order of 22nd March, 1851, (ante, p. 220,) the following fees in the Examiner's Office were abolished from the 31st of the same month ; viz. £ s. d. For every certificate signed by Examiner 3 4 For drawing every folio of depositions, where no office copy taken, when two terms shall have elapsed without the ex- amination of any witnesses 10 For every interrogatory added 1 For every subpoena notice 1 And by Order 6 of 25th October, 1852, {ante, p. 223,) the following fees of the Examiners were abolished from the 1st November, 1862 ; viz. Every witness sworn, including oath 2 6 Ditto, sworn, and not examined, including oath 5 Every witness examined on close holidays 1 7 8 Examining copy depositions, with record to prove on trial at law, if more than 40 sheets, for each sheet 2 25 Oct. 1852. Ord. VI. 1st Schedule. Part II. (Extract.) 230 FEES IN THE JUDQfis' CHAMBERS, ETC. [ClASS XXXI, 25 Oct. 185 2. For attending with record in any other Court or £ s. d. place in London or Westminster, per day 1 If in the country, per day, besides reasonable ex- penses „ 2 Upon every application to inspect depositions, in- cluding the inspection 3 Upon every application to examine copies of depo- sitions with record, to prove on. trial at law .... 5 Upon every application to search book for causes, including search 1 Upon every application to search book for deposi- tions, including search 1 N.B. — These fees will shortly cease to be payable when the new system comes into operation. Sect. 8. — Fees in the Judges' Chambers. 23 0ct.l8S2. The Chief Clerks of the Master of the Rolls and Vice- '''^•'- Chancellors respectively, are directed to take the following fees : — £ s. d. 1. For every origi nal summ ons for the purpose of proceedings o riginating in chambers 5 2. For every duplicate thereof 5 3. For every o ther summ ans 3 . 4. For every advertisement 1 5. For every certificate or report 1 6. For every certificate upon the passing of a re- ceiver's or consignee's account, a further fee in respect of each lOOl. received, of 10 7. For every order drawn up by the chief clerk, made upon applications for time to plead, an- swer or demur, for leave to amend bills or claims, or for enlarging publication or the period for closing evidence, or for the produc- tion of documents, or applications relating to the conduct of suits or matters 5 8. For every other order drawn up by the Chief Clerk 1 Sect. 7 to 9.] fees in the masters' offices, etc. 231 In the Judges' Chambers (a). For every original suminons for the purpose of pro- £ ceedings originating in chambers For every duplicate thereof For every other summons For every order drawn up by the chief clerk, made upon applications for time to plead, answer or demur, for leave to amend bills or claims, or for enlarging publication or the period for closing evidence, or for production of documents, or applications relating to th^ conduct of suits or matters For every other order drawn up by the chief clerk 1 For every advertisement 1 For every certificate or report 1 For every certificate upon the passing of a re- ceiver's and consignee's account, a further fee in respect of each lOOZ. received of 10 5 35 Oct. 1852. Ord. VI. 1st Schedule, Part II. [^Extract.) Sect. 9. — Fees in the Masters' Offices (S). £ For every warrant or summons For every certificate or report 1 For taking the acknowledgment of every married woman 1 For attending any Court per day by the clerk .... For every oath s. d. 3 6 8 14 1 6 (a) These fees are to be collected by means of stamps j Order 6 of 25th October, 1852, ante, p. 223. (?/) These fees are to be collected by means of stamps j Order 6 of 26th October,. 1852, ante, p. 223. By Order of 22nd March, 1851, {anU, p. 220,) the following fees were to be received and taken by the Clerks to the Masters in Ordinary, from the 31st of that month ; viz. For entering accounts of receivers, consignees, and com- £ a. d. mittees, in each book (in lieu of the present fee of 6d. per folio,) per folio 4 For entering accounts of parties accounting before a Master in a book, if required, (in lieu of the present fee of 6d. per folio,) per folio 4 And by the same order, the following fees in the offices of the Masters in Ordinary were abolished from the same date ; viz. ZSZ PEES IN THE masters' OFFICES. [CtASS XXXI. 25 Oct. 1852. For every certificate upon the passing of a re- £ s, d. ceiver's and consignee's account, a further fee in respect of each lOOl. received of 10 For investigating every title brought in before the Master to £ i. d. be settled, and perusing the abstract thereof, upon the first 25 folios thereof 6 8 Upon every succeeding 25 folios thereof 3 4 For every advertisement issued by the Master 1 1 For every peremptory advertisement for the sale of property with the approbation of the Master, in addition to the fore- going fee, to be repaid if property shall not be offered for sale 3 For signing the allowance of every deed, recognizance, set of interrogatories, account, or other document allowed and signed by the Master S For every order upon a warrant 5 For perusing and settling the draft of every deed brought before the Master to be settled (except lease for a year), where such deed shall not exceed 30 folios 1 Where such deed shall exceed 30 folios and not exceed 50 folios 1 10 And where such deed shall exceed 50 folios and not exceed 100 folios 2 10 And where such deed shall exceed 100 folios 3 Fee on preparing recognizance 1 1 For an examination fee on each witness, exclusive of oath ..050 For examining ingrossment of deeds, each skin 3 4 For comparing deeds, books, and papers with the schedule, on their being deposited or delivered out, where the sche- dule shall not amount to 50 folios 6 8 Where the schedule shall amount to 50 folios 13 4 For expunging scandal or impertinence out of every record or document referred, on every such record or document .... 1 And by Order 6 of 25th October, 1852, {ante, p. 223,) the following fees in the Master's Office were abolished bom the 1st November, 1852 j viz. For drawing every report exclusive of schedules of accounts of parties accounting before the Masters, and exclusive of the fee on signing, per folio 1 For drawing schedules of accounts of parties accounting before the Master, per folio 6 For taking the acknowledgment of any deed 6 For searching for papers in a cause or matter not in immediate progress before the Master : 6 8 For entering accounts of receivers, consignees, and com- mittees, per folio, in each book 4 For entering accounts of parties accounting before the Master in a book, if required, per folio 4 For every exhibit 2 6 When a Master shall be required to attend a party to adminis- ter an oath, there shall be paid a further fee of 10s. over and besides the coachhire, or reasonable travelling expenses of the Master 10 And for copies of every document or writing made in the Master's office, and also for the transcript of every report, pursuant to the Act of Parliament 3 & 4 Will. 4, c 94, and the General Orders of 26th October, 1842, per folio 4 Sect. 9 & 10.] fees in the record and writ clerks' office. 233 Sect. 10.— i^ees in the Record and Writ Clerks' Office{a). The Record and Writ Clerks are directed to take the fol- ^2 April, 1850. lowing fees : £ s. d. 1. For filing a claim 5 2. For sealing every writ of summons (6) 5 3. For filing a caveat ■ 2 6 For appearances, office copies, certificates, &c., the same fees as directed by the schedules of fees now in force. Ord. XXXIII. [Extract.) On claims. (o) By Order of 22nd March, 1851 {ante, p. 220), the following fees in the Record and Writ Clerks' Office were abolished from the 31st of the same month, viz. : — £ s. d. For sealing of every dedimus to take an answer 10 For sealing of every special dedimus by order of Court .... 18 For filing every answer or demurrer 10 For every consent 7 Q For filing every note , 7 For filing replication 10 For entering every memorandum of service of copy bill on every defendant 7 And by Order 6 of 25th October, 1852 {ante, p 223), the following fees of the Record and Writ Clerks' Office were abolished from the 1st November, 1852, viz. : Sealing special injunction 1 10 Reseating any writ, or any alteration thereof 3 Every exemplification, per skin, exclusive of parchment and duty 1 14 Amending every office copy if more than 10 folios, for every folio over 4 Search for records when in record room, or for any person not being a party in the cause, for each year after the first year 10 Every exhibit to an affidavit, &c 2 6 By the same order the following fees in the Chancery Subpoena Office (the duties of which were by the 15 & 16 Vict c. 87, s. 28, transferred to the Clerks of Records and Writs) were abolished from the same date, viz. : — For every subpoena 5 6 For sealing every distringas 5 6 For filing affidavit 1 And by the same order the following fees in the Office of the Se- cretary of Decrees and Injunctions (whose duties were by the 15 & 16 Vict. c. 87, s. 23, directed to be performed by the Clerks of Records and Writs) were abolished from the same date, viz. : — Enrolling Lord Chancellor's and Vice-Chancellor's decree .. 10 6 The like, Master of the Rolls 10 6 Petition to enrol nunc pro tunc 1 Answering same 10 If private seal enrolling decree, extra 3 9 Searching if decree enrolled or caveats entered 1 (6) See ante, p. 148, note (a). S34 FEES IN THE RECORD AND WRIT CLERKs' OFFICE. [CtASS XXXI, 2 Nov. 1850. The fees to be received and taken by the Registrars and Ord. XXVIII. their Clerks, and by the Clerks of Records and Writs, and their On special cMBs. Clerks respectively, for filing a special case and all proceed- ings thereupon, are to be the- same as are now received and taken by them respectively for filing a bill and for proceed- ings in suits instituted by bill. 23 Oct. 1852. The Record and Writ Clerks are directed to take the fol- <"*• "'• lowing fees : For office copies of original depositions, and exa- & s, d, minations, per folio 4 For entering appearances to judge's summons, same charge as for appearing to a bill. For stamping every copy of a bill or claim for ser- vice 5 For stamping every copy of a judge's summons for 'f service 5 For examining every copy or part of a copy of a set of interrogatories, and marking same as an ofHce copy 5 In the Record and Writ Clerks' Office (a). 25 Oct.1852. For all office copies, per folio 4 ist°sch7Me. Filing every bill or information (b) 1 (IS"/.) For filing every claim 5 For filing every special case 1 Upon entering every appearance if not more than three defendants 7 If more than three and not exceeding six defend- ants 14 And the same proportion for every number of defendants. For sealing an attachment or distringas, for not appearing or answering 8 For every certificate 4 For every copy of a bill or claim to be served . . 5 For every writ of summons, distringas or subpoena 5 (o) These fees are to be collected by means of stamps, Order 6 of 25th October, 1852, ante, p. 223. (6) Where a written copy of a bill was filed under sect. 6 of 16 & 16 Vict. c. 86, and was duly stamped, the printed copy to be afterwards filed does not require a stamp. Lambert t'. Lomas, 9 Hare, A pp. Ivii. ; and Jones V. Batten, ib., and 2 De G., M. & G. HI. Sect. 10.] fees in the record and writ clerks' office. For filing and entering duplicate of every judge's £ s. d, summons 5 For stamping every copy thereof 5 For sealing every other writ 1 For every oathj affirmation, declaration, or attesta- tion upon honor 1 6 For examining every copy, or part of a copy, of a set of interrogatories, and marking same as an office copy 5 Upon every application for a search for a record, and for searching 2 Upon every application to inspect a record, and for inspecting the same ....' 5 Upon every application to inspect exhibits, if occu- pied not more than one hour 5 If more than one hour, per diem 10 Upon every application for the officer's attendance in Courts of law per diem, and for his attendance, besides reasonable expenses of the officer .... 1 Upon every application for the officer's attendance in a Court of equity, per diem ........" 10 For examining and signing enrolments of decrees and orders 3 For filing caveat against claim to revive, or against decree or order or enrolment 5 For filing supplemental statement or statement for revivor 10 For office copies of depositions taken before ex- aminer, at per folio 4 The fees hereunder specified shall hereafter be collected, not in money, but by means of stamps, denoting the amount of such fees, stamped or affixed, at the expense of the parties liable to pay the fees, on or to the vellum, parchment or paper on which the proceedings in respect whereof such fees are payable, are written or printed, or which may be otherwise used in reference to such proceedings. Znd. In the Record and Writ Clerks' Office. £ s. d. For amending every record of any bill 10 For amending every office copy thereof 5 Copies of documents left as exhibits, per folio . . 4 235 25 Oct. 1852. 4 Dec. 1852. Ord. II. {Extract.} FEES IN THE registrars' OFFICE. [ClASS XXXI. Sect. 11. — Fees in the Registrars' Office (a). 22 April, 1850. The Registrars are directed to take the following fees : Ord. XXXIII. I ■ Foi" every order on the hearing of a claim, and £ s, d. OncSr*'* on further directions 2 2. For every office copy thereof 10 (o) By Order of 22nd March, 1851 {ante, p. 220) the following fees in the Registrars' Office were abolished from the 3 1st of the same month, vir, : — For every certificate signed by the Registrar for the sale or £ s. d. transfer of annuities, stock, or Exchequer bills, or for deli- very out of the latter 2 6 For ev^ry other certificate signed by the Registrar 1 For every copy of minutes of any decree or order, per side ..010 For exhibit proved vM voce in Court 2 6 For entering every plea or demiurer 1 For setting down causes, exceptions, further directions, pleas, and demurrers, each (except for setting down causes on the Registrar's days) ; 1 For setting down causes on the Registrar's days 1 1 And by Order 6 of 25th October, 1852 (onte, p. 223), the following fees in the Registrar's Office were abolished from the 1st November, 1852; viz. :— 1. For every decree or order on the original hearing of the cause, and on further directions 3 10 2. For every office copy thereof 2 3. For every order on petition or motion of course, not ex- ceeding one side , 3 4. For every additional side of such order 1 5. For every order on other petitions, where the reference is directed, but the decision of the Master is not to be final, and also where the petition is dismissed 10 6. For every office copy thereof 10 7. For every order for a special injunction, or for the ap- pointment of a receiver 2 10 8. For every office copy 1 9. For every order for payment of money out of Court, and for no other purpose, where the sum or sums thereby spe- cifically directed to be paid shall not exceed in the whole loot 10 10. For every office copy thereof 5 1 1. For every order of transfer out of Court, or sale of any sum or sums of Government Stock or South Sea Annui- ties (excepting Long Annuities and annuities for terms of years), and for no other purpose, where the sum or sums thereby specifically directed to be transferred or sold shall not exceed in the whole 100/. stock or annui- ties 10 1 2. For every office copy theireof 5 13. For every order for payment out of Court of any annuity or annuities, not exceeding in the whole 51. per annum, or of any interest or dividends upon stock or annuities, not exceeding in the whole SI. per annum, and for no other purpose 10 14. For every office copy thereof 5 Sect. 11.] fees in the registrars' office. 237 £ s. d. 3. For every order on arguing exceptions 1 22 April, 1 850. 4. For every office copy thereof 5 5. For every order for transfer out of Court, or sale of any sum of Government Stock, &c., exceeding lOOZ. Stock or Annuities, and for every order for payment out of Court of any annuity or annuities, or of any interest or dividends upon stock or annuities, exceeding in the vrhole 51. per annum 1 10 6. For every office copy thereof 10 £ s. d. 14a. For every office copy of every «other order for payment or transfer out of Court 1 15. For every other order on special motions I 16. For every office copy thereof 10 17. For every order on arguing exceptions ,... 2 18. For every office copy thereof 1 19. For every order on arguing pleas and demurrers 1 20. For every office copy thereof 10 21. For every order on petition of appeal or rehearing 2 22. For every office copy thereof 1 23. For every order on petitions not herein otherwise specified 2 24. For every office copy thereof • 1 25. For every order in any matter of lunacy .• 10 26. For every office copy thereof .•.. 5 27. For every order in any matter of bankruptcy 10 28. For every office copy thereof 5 29. For every copy of a petition of appeal on the rehearing, per side 6 30. For every order on the hearing of a claim on further di- rections 2 31. For every office copy thereof 10 32. For every order on arguing exceptions (on claim) 1 33. For every office copy thereof 5 34. For every order (on a claim) for transfer out of court or sale of any Government Stock, &c., exceedipg lOOt stock or annuities ; and for every order for payment out of Court of any annuity or annuities, or of any interest or dividends upon stock or annuities, exceeding in the whole SJ. per annum 1 10 35. For every office copy thereof 10 36. For every order for payment of money out of Court where the sum or sums thereby directed to he paid shall exceed 100/. and shall not exceed in the whole 500i. ; and for transfer out of Court or sale of any sum or sums of Go- vernment Stock or South Sea Annuities (excepting Long Annuities or annuities for terms of years), when the sum or sums thereby directed to be transferred or sold shall exceed 1002. and shall not exceed in the whole 500/., and for payment out of Court of any annuity or annuities ex- ceeding 51. and not exceeding in the whole 25/. per annum, or of any interest or dividends upon stock or annuities exceeding 51. and not exceeding in the whole 25/. per annum, and for no other purpose 10 37. For every office copy thereof 10 38. For every other order for payment or transfer out of Court 2 238 FEES IN THB REGISTRARS* OFFICE, [ClASsXXXI. 22 April, 1850. For every other order and office copy, the same fees as now received by the Registrars and their Clerks under the schedules of fees now in force. Ord.'xkviii". T''^ ^^^® *° ^^ received and taken by the Registrars and On special cases, tj^gir Clerks, and by the Clerks of Records and Writs, and their Clerks respectively, for filing a special case and all proceed- ings thereupon, are to be the same as are now received and taken by them respectively for filing a bill and for proceedings in suits instituted by bill, and the fees to be received and taken by the Registrars and their Clerks for setting down exceptions' for scandal, impertinence (a), and insufficiency, and for orders made thereon, are to be the same as are now received and taken for setting down exceptions and for orders made thereon. Fees to be received and taken by the Registrars and their Clerks. 22 March, 1851. For every order for payment of money out of £ s. d. ^"fil/rM")'' Court where the sum or sums thereby directed to be paid shall exceed lOOZ. and shall not ex- ceed in the whole SOOZ. ; And for transfer out of Court or sale of any sum or sums of Government Stock or South Sea Annuities (excepting Long Annuities or annuities for terms of years), when the sum or sums thereby directed to be transferred or sold shall exceed lOOZ. and shall not exceed in the whole SOOZ. ; And for payment out of Court of any annuity or annuities exceeding 51. and not exceeding in the whole %5l. per annum, or of any interest or di- vidends upon stock or annuities exceeding 51. and not exceeding in the whole ^51. per annum ; and for no other purpose, in lieu of the present feeofS/. lOi ." 10 For every office copy thereof, in lieu of the present feeofH 10 For every other order for payment or transfer out of Court, in lieu of the present fee of 2/. Ids. ..200 23 Oct. 1852. The Registrars are directed to take the following fees : — Ord. II. YoT orders made by a judge in chambers, drawn up by the Registrar, the like fees as before directed to be taken by the Chief Clerk for orders drawn up by him. (a) See anle, p. 63, not$ (d). Sect, n.] fees in the registrars' office. 239 Ord. VI. ]at Schedule. Fart II. {Extract.) In the Registrars' Office (a). For every decree or decretal order on the hearing £ s. d. 25 Oct. 1852. of a cause, or on further directions ; and on the hearing of a special case, including the court fee and the charge for entry 4 For every order for transfer or payment out of Court of an amount not exceeding 200Z. stock or cash, or interest on stock not exceeding lOl. per annum, and for every order on petition where the petition is dismissed 10 For every order for transferror payment out of Court of an amount exceeding 200Z., but not exceeding 500/, stock or cash, or interest on stock exceeding 10/. per annum, and not exceed- ing 25/. per annum, and for every order on spe- cial motion not herein otlierwise specified 1 For every order on the hearing of claims, pleas, demurrers, exceptions, or on petitions not herein otherwise specified, or on petitions of appeal, rehearing for injunctions, receivers, and for writs of ne exeat regno 2 For every ofBce copy of a petition of appeal or re- hearing • 1 For every order on petition or motion of course, including the entry thereof 5 For every oiSce copy of a decree or order 1 The fees hereunder specified shall hereafter be collected, not in money, but by means of stamps denoting the amount of such fees, stamped or affixed, at the expense of the parties liable to pay the fees, on or to the vellum, parchment or paper on which the proceedings in respect whereof such fees are payable are written or printed, or which may be otherwise used in reference to such proceedings. ] st- In the Registrars' Office. For orders made by a judge in chambers, drawn up by the Registrar, the like fees as by the order of the 23rd October, (o) These fees are to be collected by means of stamps ; Order 6 of 25th October, 1852, ante, p. 223. 4 Dec. 1852. Ord. II. (Extract.) 240 FEES IN THE REPORT OFFICE, ETC. [ClASS XXXI. 4 Dec. 1852. 1852, are directed to be taken by the Chief Clerks to the Judges for orders drawn up by such Chief Clerks. New Orders. Regulations at 1 . The amount of th e stamp to be marked on the minut es. office(o). 2. The writer will supply the s tamp when the order is copied, and will retur n the pape rs to the seat, but retain the ordfii. 3. When the solicitor applies for the order, his papers will be delivered to him, and he^ill be told that he w ill rece ive the qrde.r from the writer, on paying for the stamp. Orders of course, — Printed Forms. 4. W here printed forms are used, the regi strar's clerk will tell t he solicu or what form is required, and the solicitor will obtain th e stamped form from the writer, and leave it with his papers. Office Copies, 5. The stamps will be paid for to the writer on bespeaking. Orders dated p rior to Michaelmas Term, 1852. The writer will get st amps affixed on orders requiring the same, which shall have been marked with the proper amount of stamp by the registrar, thus (stamp 21.), and left with the writer, with the money. Sect. 12. — Fees in the Report Office (b). £ s. d. 25 Oct. 1852. Upon every application for a search 6 iBt Schedule. For all oiSce copies, at per folio 6 4 Part II. "^ '^ (Extract.) (o) See the "Legal Observer," of the 20th November, 1852, p. 47. (6) These fees are to be collected by means of stamps ; Order 6 of 25th October, 1852, ante, p. 223. By Order of 22nd March, 1851 {ante, p. 220), the following fees in the Report Office were abolished from the 31st of the same month, viz. : — For every attendance with a report at the Master's OflSces, for £ s. i. any material alteration to be made therein 6 8 And by Order 6 of 25th October, 1852 {ante, p. 223 ), the following fees in the Report OfSce were abolished from the 1st November, 1852, viz.: — Searches, 6d. per year 6 Examination of office copies for evidence, per folio of ninety words 1^ Sect. 11 TO 13.] fees in l. c.'s principal secretary's office. 241 Sect. 13. — Fees in the Lord Chancellor's Principal Secretary's Office, That in lieu and in stead of the fees heretofore receivable 23 Feb. 1850. by the Lord Chancellor's Principal Secretary, on his own ac- (Extract.) count and on account of the Gentlemen (a) of the Chamber, or of any other officer of the Court of Chancery, and paid at the office of the said Principal Secretary, he shall receive and take only the fees set out in the schedyle hereto, except as to all petitions presented previous to the said first day of March next, the court fees upon which are to be paid as heretofore. SCHEDULE above referred to. £ s. d. For every appeal or petition for rehearing of a cause .10 For every petition for a letter to any peer of this realm and for the letter 10 For every petition, whether in a cause or where no cause is depending, including the fee on the hearing hereto- fore payable to the Gentlemen (a) of the Chamber to the Lord Chancellor 10 For copies of aiBdavits 4d. per folio. In the Lord Chancellor's Principal Secretary's Office (b). On all attendable petitions (c), appeals, rehearings, 25 Oct. 1852. and letters missive ......c 1 On all non-attendable petitions 10 On a matter-of-course order, on a petition of right 10 On an order for a commission, on a petition of right 1 Ord.VI. 1st Schedule. Part II. (Extraef.) (a) By the 15 & 16 Vict. c. 87, s. 23, the ofSce of one of the two Gendenien of the Chamber ceased from the 28th October, 1852. (&) These fees are to be collected by means of stamps ; Order 6 of 25th October, 1852 (ante, p. 223). (c) Where a petition had been presented by a single woman who af- terwards married, it was allowed to be amended, by making it the peti- tion of the husband and wife, without a fresh stamp, Robinson v. Harrison, 1 Drewry, 307 ; but in a report of the same case (nam. Robinson v. Hew- itson) in 20 L. T. 154, it is stated to have been held that a new stamp was necessary. FEES IN THE SECRETARY AT THE ROLLS OFFICE. [ClASS XXXI. Sect. 14, — Fees in the Office of the Secretary at the Rolls (a). 25 Oct. 1852. On every petition (6) set down for hearing, to in- £ s. d. Old. VI. elude the fee on hearing 1 1st Schedule. /-v i . • #. ^ n ,^ .^ « Part II. Vn the petition for every order of course 7 On the admission of every solicitor 117 (o) These fees are to be collected by means of stamps ; Order 6 of 25th October, 1852, ante, p. 223. By the same Order the following fees of the Rolls Court Secretaries were abolished from the 1st November, 1852, viz. : — £ s. d. For drawing and copjring every order of course •• 5 6 For entering every order of course 6 For entering every order for setting down further directions, exceptions, pleas, and demurrers 6 For filing every petition for an order of course 1 For answering and setting down every petition for hearing . . 6 6 For setting down every cause for hearing 1 For setting down every cause on further directions 12 6 For setting down every set of exceptions 10 Ditto demurrer 10 Ditto plea 10 Ditto rehearing •.• 1 For advancing every cause 10 For entering every caveat against the enrolment of a decree or order • 5 For every docket of decree or order signed by the Master of the Rolls 2 6 For every office copy of an order ••. 6 For every fiat of enrolment i 5 6 On hearing out of Term of every cause, further directions, pleas, demurrers, and where decree is made, each party . . 13 On hearing of every petition in which an order is made, the petitioner pays 7 From each party on the hearing of a cause in Term time .... 2 6 From each party on the hearing of a cause in Michaelmas and Hilary Terms only 1 For papers left at the Secretary's Office for the Master of the Rolls on further directions, exceptions, &c 5 For every recognizance vacated 6 On the appointment of every guardian in Court for infants out of Term 7 For silk gowns. — A fee payable by each of her Majesty's counsel atttending at the Rolls Court, for each Term .... 012 6 (6) See ««pro, p. 241, note (c). Sect. 14 & 15,] fees of solicitors. 243 Sect. 15. — Fees of Solicitors. Solicitors are entitled to charge and be allowed the follow- 22 April, 1850. ins fees (a) : £ s. d. ord. xxxm. ■I-. • • ■. n ■, „ ^ n {Extract.) tor instructions to sue or defend 6 8 on claims. For instructions for every claim 13 4 For preparing and filing a claim 2 2 For preparing a writ of summons , . . . 13 4 For each writ after the first 6 8 For engrossing claims and writs, per folio 6 For parchment : as paid " For each copy of writ to serve, per folio 4 For the brief to counsel to move for leave to file claim (exclusive of a copy of the claim for coun- sel and the Court) 10 For the brief and instructions to counsel, on the hearing (exclusive of any necessary copies). ... 1 For taking instructions to appear and for entering appearance : — For one or more defendants if not exceeding three 13 4 If exceeding three, and not more than six, an additional sum of 6 8 If exceeding six, for every number not ex- ceeding three, an additional sum of 6 8 For settling minutes, passing and entering order on hearing : the same charges as on a decretal order For entering a caveat 6 8 For procuring certificate of no caveat 6 8 For term fee : as in a suit And also all such fees as by the present practice of the Court they are entitled to, save such as are varied or rendered unnecessary by these present orders. In lieu of the fees now payable to Solicitors for instructions 7 Aug. 1852. for bills, for engrossing bills and claims, for copies of bills °"'' " and claims, for abbreviating bills and making a brief thereof, (o) As to some of these fees, see now Order 4 of 7th August, 1852, and Schedule A. thereto, infra, and see ante, p. 148, note (a). k2 244 FEES OF SOLICITORS. [CtASS X XXI 7 Aug. 1852. Solicitors shall be entitled to charge, and be allowed in suits commenced after these orders come into operation, the fees specified in schedule (A.) to these orders, SCHIUDULE (A). Table of Fees. £ s. d. For instructions for bill 1 14 For making a copy of a bill or claim for the printer, per folio 004 For correcting the proof sheet, per folio . . • .002 For printer's bill (as paid), deducting any copies paid for by the defetidant For amending each copy of a bill or claim to serve where there is no reprint . 13 4 Instructions for brief: to be allowed on a replication being filed, or on a motion for a decree on a bill, or in an in- junction cause on moving for the injunction ; but so that this fee shall be charged once only in the progress of a cause ... 110 For amending each brief of a bill or claim where there is no reprint , , . . . . . . . 13 4 For perusing and considering the bill on behalf of each de- fendant, or set of defendants, appearing by the same so- licitor 110 23 Oct. 1852. Solicitors are entitled to charge and be allowed the foUov?- ord.v. ■ ingfees:— For instructions to commence proceedings origi- £ s, d. nating in chambers, or to defend the same .... 13 4 For preparing an original summons for the purpose of proceedings originating in chambers, and the duplicate thereof 15 4 For attending at chambers to get such summons and duplicate examined and sealed 6 8 For attending at the Record and Writ Office to file duplicate and examine copies, and get same stamped 6 8 For endorsing a summons and the copies under Order VI. of 16th October, 1852, and attending to get same sealed 6 8 For entering the appearance for one or more de- fendants, if not exceeding three 6 8 Sect. 15.] fees of solicitors. 24S If exceeding three, for every additional number £ s, d. 23 Oct. 1852. not exceeding three an additional sum of 6 8 In cases of proceedings originating in chambers the same term fee as in a suit. For preparing every other summons and attending to get same filled up and sealed at chambers ..068 For each copy of a summons to serve or leave at chambers 2 For attending on a summons or other appointment, each day, a fee of 6*. 8d., 13s. 4rf., or 11. Is.,- according to circumstances ; but the fee is to be 6s. 8d.) unless a larger fee is allowed by the judge or his chief clerk. Where from the length of the attendance, or from the difficulty of the case, the ju dge shall thin k the hi ghest of the above fees an insufficient re- muneration for the services performed, or where the preparation of the case to lay it before the judge shall have required skill and labour for which no fee has been allowed, the judge may allow such further fee, not exceeding one guinea, as in his discretion he may think fit. For preparing every advertisement 6 8 For attending to get same approved and signed . . 6 8 For attending for every order drawn up by the Chief Clerk, and at the Registrar's Office to get same entered 6 8 For attending to enter claim under Order XXXVI, of 16th October, 1 852, and to file affidavit 6 8 For perusing the affidavits of claimants coming in under Order XXXVI. of 16th October, 1852, and attending in chambers at the time appointed by the advertisement, where the number of claims does not exceed five 1 I Where the number exceeds five, for every addi- tional number, not exceeding five, an additional sum of 1 1 For attending to bespeak and procure office copy of certificate or report 6 8 For all other business performed, such fees as by the practice of the Court they are entitled to for similar business. 246 FEES IN THE TAXING masters' OFFICE. [CtASS XXXI. '■ Sect. 16. — Fees in the Taxing Masters' Office (a). ord. yi. For every warrant or summons, but not more than £ s. d. 1st Schedule. j ■ i ■ i Part, II. °n6 order or summons is to be issued on one (Extract.) bill, Or set of bills, unless the Taxing Master shall think it necessary to issue a new warrant or summons 3 On signing every report and certificate 1 Upon the Master's certificate of every bill of costs, as taxed, where the amount shall not exceed 20/. 10 Upon every additional 201. or fractional part thereof, a further fee of 10 For every oath, affirmation, or attestation upon honor 1 6 Where costs pay- That in all cases where the costs a re direct ed to be pa id taCoTt."'*^'^* out of a fund in Court , the f ees of taxatio n shall n ot be p ay- able by means of stamps, b ut shall be carried over by the Acc ountant-Gen eral to the credit of the Suito rs' Fee Fund ; and to that intent the Taxing Master shall in such cases cer- tify the amount of such fees. 4 Deo. 1852. Whe n no certificate of the t axation of a bill of costs shall ■Where no certifl- be required, the a d valorem duty directed by the order of cate required. ^^^ gStT'day of October to be l evied by stamps on the Master's certificate shall nevertheless be due, and s hall be payable on the amount of the bill as taxed, or on the amount of such part thereof as may have been taxed ; and the Solicitor is in such case to ca use the proper stamp (the a moun t thereof to be fi xed by the Master ) to be i mpressed on or annexed to t he bill of costs. (o) These fees (except in the cases in Order 7, infra) are to be collected by means of stamps ; Order 6 of 25th October, 1852, ante, p. 223. By Order of 22nd March, 1851 (ante, p. 220), the following fees were to be received and taken by the Taxing Masters and their Clerks from the 31st of that month, viz. : — £ a. d. Per-centage on amount of every bill of costs as taxed, in lieu of the present fee of 3< 2 10 And by the same Order the following fees in the Offices of the Taxing Masters were abolished from the same date, viz. : — For signing the allowance to every set of interrogatories, ac- count, or other document 5 For an examination fee on each witness, exclusive of oath . . 5 And by Order 6 of 25th October, 1852, the following fees of the Tax- ing Masters were abolished from the Ist November, 1852, viz. : — For copies of bills of costs, and other documents, per folio . . 4 For drawing every report, per folio ■ 1 Per-centage on amount of every bill of costs as taxed ..>>.. 2 10 For every exhibit 2 6 ( 247 ) ADDENDA OF CASES REPORTED DURING THE PROGRESS OP THE WORK THROUGH THE PRESS. Page 3.— Note to s. 8 of 14 & 15 Vict. c. 83, " Where it is wished that the Court shall have the assistance of a common law judge, the judge in equity will write to the Lord Chancellor to request him to make the application. Hay v. Willoughby, 9 Hare, App. xxx. ; Deerhurst v. Jones, 16 Jur. 988." 3. — Note to s. 11 of the same Act, " After a judgment pronounced by the Lords Justices on an appeal, it will not be allowed to be reheard before the full Court ; but after a rehearing before the Lords Justices, and no judgment pronounced, there may be a rehearing before the full Court. Blahn v. Bell, 16 Jur. 1103." 31.— Note to s. 48 of 15 & 16 Vict. c. 86, " Under this section the Court will not order a sale unless by consent, except in cases where ttiere is such complication th at the common decree cannot be c onveniently worked.. ' tliorns v. Holtom. 16 Jur. lo7/. For the lorm of decree in an ordi- nary case see Staines v, Rudlin, 1 6 Jur. 965 ; and in a case where there are several incum- brances, Cator V. Reeves, ib. 1004 ; after a de- cree has been made for a foreclosure, the Court will not vary it by directing a sale under this Act, Girdlestoiie v. Lavender, 9 Hare, App. liii." 33. — Note to s. 51 of the same Act. " This section ^ does not render the decision binding on the ab- sent parties as the 42nd section does when notice of the decree has been served, Doody v, Higgins, 9 Hare, App. xxxii." 39. — Note to s. 61 of the same Act. " This section has not a retrospective effect, so as to prevent the argument in a Court of Law of a case sent from the Court of Chancery before the day on which 248 ADDENDA. Page S9— (continued). the Act came into operatioHj Hobson v. Neale, 16 Jur. 1023 (Ex.)." 42.— Note to rule 8 of s. 42 of the same Act. " All the persons interested in the proceeds of the sale of real estate to be sold under the decree must be served with notice of the decree, Doody v, Hig- gins, 9 Hare, App. xxxii ; and an infant must be served in the same way as any other party, Clarke v. Clarke, 20 Law T. 88." 42. — Note to rule 9, ib. " It has been held that the devisees in trust under a will represent the per- sons beneficially interested in a suit by a mort- gagee for foreclosure or sale, Hanman v, Riley, 9 Hare, App. xl ; but that in a similar suit against trustees under a settlement it is neces- sary to make the adult cestui que trusts parties, Goldsmid v, Stonehewer, ib. xxxviii. In a suit for sale of real estate and distribution amongst residuary legatees, all of whom were made par- ties, it was held that the trustees of a marriage settlement of one of the shares were also neces- sary parties, but that they would sufficiently re- present the children of the marriage, Densem v. Elworthy, 9 Hare, App. xlii." 43. — Note to s. 44 of the same Act. " A suit by cre- ditors under a trust deed for their benefit against the trustees was allowed to proceed without a personal representative of the deceased debtor, where no such representative existed, and the estate was insolvent, Chafiers v. Headlam, 9 Hare, App. xlvi. The executors of a father who survived, and became the sole next of kin of his deceased children, may be appointed to represent the estates of the dieceased children. Swallow V. Binns, 9 Hare, App. xlvii ; so per- sons who had been appointed executors of a will which was not proved were ordered by the Court to represent the personal estate of the tes- tator for the purposes of the proceeding then before the Court, Ex Cramer, 20 Law T. 87 ; but this section does not apply to the case where the estate to which it is desired to appoint a re- presentative is the very estate which is being administered in the suit, Groves v. Lane, 16 Jur. 1061 ; Silver c. Stein, 1 Drewry, 295; nor to the case of an application for the payment of money out of Court, Rawlins v, M'Mahon, ib. ADDENDA. S-l-O Page 43 — (continued). 325. Applications under the provisions of this section must he made upon notice, Chaffers v. Headlara, supra." 44. — Note to s, 51 of the same Act. " See addendum to p. 33." 57. — ^Note to s. 12 of the same Act, and to Order 17 of 7th August, 1852, p. 59. " The delivery of the copy of interrogatories to the defendant's solicitor need not be personal, Bowen v. Price, 1 Drewry, 307 ; and on appeal, 20 law T. 174." 68. — Note to s. 15 of the same Act. "The motion for decree may be made in suits commenced before as well as since the Act came into operation. Cousins V. Vasey, 9 Hare, App. xxxi." 78. — Note to s. 31 of the same Act. " The examiner is appointed in Court, and not by a judge at chambers, M'Neillie v. Acton, 20 Law T. 154; and may be appointed for the examination of witnesses vivd voce out of the jurisdiction of the Court, Crofts v. Middleton, 9 Hare, App. xviii. The parties may agree on the person to be named, otherwise he will be named by thejjCourt, ib." 81. — Note to s. 36. " For a case in which the Court refused to allow the evidence of a particular witness to be taken upon affidavit, see Crofts v. Middleton, supra ;" and to note (b) add, " In a suit for specific performance, an affidavit was, on the hearing on further directions, allowed for the purpose of proving facts showing the .per- formance of a covenant in a lease, Hume v. Bentley, 16 Jur. 1109." 83. — Note to s. 39. " In a case in which the Court would before the statute have given leave to bring an action, it will now direct the oral examination of a witness before itself, Deaville v. Deaville, 9 Hare, App. xxii." 85. — To note (6) add, " and nom. Rooth v. Tomlinson, 22 Law J. 75 ; Sherwood v. Vincent, 9 Hare, App. xix." 99.— Note to s. 13 of 15 & 16 Vict. c. 80. " The jud ge in dealing with a matter at chamber s' i'Jill bntui' into consideration of any special circumstances which h^ may deem material, and 11 ly IIU lUIiyor necessary that a decree or order should contain any direction on that subject, Williamson v. Jef- freys, 9 Hare, App. Ivi." 250 ADDENDA. Page 102. — Note to s. 27. " A charity petition will be or- dered to stand over and the petitioners to at- tend the judge in chambers with proposals for a scheme, and the Attorney General to be served with the summons for attendance on settling the same, Re Hanson's Trust, 9 Hare, App. liv." 137.— Note to s. 53 of the 15 & 16 Vict. c. 86. " A petition is within this section, Robinson v. Hewitson, 20 Law T. 154." 146. — Note (c) to Scargill v. Hurry add, " Anon. 9 Hare, App. xi." 150. — Note, line 6, to Penny v. Penny, add, " Ewington V. Fenn, ib. App. x." 157. — To note (6) add, " who should be some adult and competent person already a party in the cause not having any adverse interest, rather than a solicitor or other stranger. Anon. 9 Hare, App. xxvii. Upon an application of the plaintiff, an affidavit of the service of the writ of sum- mons was considered unnecessary where the infant had appeared, Wood v. Logsden, ib. xxvi. CORRIGENDA. Page 187, dele note (/) ; and page 206, dele note(f). ( 251 ) INDEX. A. ABATEMENT. See Revivor, and Supplement. ABSTRACTS OF TITLE. to be laid before counsel to be approved by the Court, 23ft, 37. time for delivery of, to be specified in the conditions of sale, 236, 37. ACCOUNTANT-GENERAL. ' not in future to be a Master, 19. rights as Master saved, 21. may pay to survivors of personal representatives, 24. to pay out deposits on appeals, &c., 24i. to pay into the Bank the brokerage received by him, 24, n. (o). salary of, 24, n, (a), may invest dividends under 36 Geo. 3, u. 52, h. 32 . . 188. income under 10 & 11 Vict. u. 96.. 195. cheques of, how to be countersigned, 28. duties under the Trustees' Relief Acts, 193. ACCOUNTANTS. assistance of, may be obtained by the Court, or a judge, 236. cannot be obtained by the Masters, 236, n. (a), 125, n. (6). ACCOUNTS. And see Judges' Chambers. Court may give special directions as to the mode of taking, 34. books of, may be directed to be taken as primA facie evidence, 35. opinion of the Commissioners relating to, 34, n. mode of making out and verifying, 36, surcharging an accounting party, 36. ACT OF BANKRUPTCY, proof of, 86. by trader disobeying order for payment of money, 95. ACTUARIES. assistance of, may be obtained by the Court, or a judge, 236. cannot be obtained by the Masters, 236, n. (o), 125, n. (6). ADMINISTRATORS. See Executors and Administrators. ADVERTISEMENTS. See Judges' Chambers. AFFIDAVITS. And see Affirmations. may be sworn before the Clerks of Records and Writs, and the Clerk of Inrolments, 30. before whom to be sworn out of the jurisdiction, 62. may be used at the hearing. by particular witnesses, or as to particular facts, 81, Add. 249. of matters not directly in issue, ib. n. (6). Add. 249. of service of notice of disputing act of bankruptcy, &c., 86, that a trustee defendant cannot be found, 96. but if filed before issue joined, previous notice to be given, 83. T 252 INDEX, AFFIDAVITS— continued. to be divided into numbered paragraphs, 86. to be expressed in the first person, ib. n. (6). notice of using, in Judges' Chambers, 108. form of, in cases of orders for production of documents, 1016, n. may be read in opposition to answer on applications for, or to dissolve injunctions, and on applications for or to discharge receivers, 132. AFFIDAVIT OFFICE. duties of, to be performed by the Clerks of Records and Writs, 30. AFFIRMATIONS. may be taken before the Clerks of Records and Writs, and the Clerk of Inrolments, 30. before whom to be sworn and taken, out of the jurisdiction, 62. by Quakers, and persons having been Quakers, and by Separatists, 81, 11. (a). ALLOWANCE TO PARTIES. the Court may allow them the whole or part of the income of realty or personalty, or part of the personalty, the subject of litigation, 38. practice as to payments to parties pending litigation, 38, n. ANSWERS. contents and form of, 60. time allowed for putting in, where no answer required, 61. where answer required, 61, n. (a), 62. furtlier time may be granted, 62. taken, within the jurisdiction, may be sworn and filed like an affida- vit, 62. before whom to be sworn and taken, out of the jurisdiction, 62. may be filed without oath of messenger, 63. alterations in, how to be authenticated, 63. when to be deemed sufficient, 65 to 67- exceptions to, for insufficiency. time far filing, 65, 67. titne for submission, S5. time for answering, 65, 67, 68. time for setting down for bearing, 65 to 67. in case of dection, 66. old exceptions, 66, 67. mode of setting down for he*ing and notice thereof, 65. notice of setting down old exceptibns to state the par- ticular exceptions, 67. proceedings when third answer held insufficient, 68. fourth answer cannot be put in, 68, n. (a), may be treated as siftdavits, oh motions for decree, 69. to interrogatories for examination of plaintiff, see InterrogatoHes. APPEALS. from decrees and orders undSr 13 & ll Vict. c. 35, .97. Court may suspend decree, 183, from orders under general orders of 22nd April, 1850. .97, 157. practice on, 157, n. (c). time for, limited, 97. enlargetn^nlt of time, 97. setting down for hearing and notice thereof, 97. deposit on setting down, 98. under the Trustees' Relief Acts, 192. APPEARANCES. to proceedings in Judges' Chambers. See Judges' Chambers. of persons made parties, by order, to abated and defective suits, 136. INDEX. 25S APPLICATIONS. for special orders between the sittings, 10. for time to plead, &c., for leave to amend, to enlarge publication, and matters relating to the conduct of suits, may he heard by the judges, 11. ATTESTATIONS OF HONOUR. may be taken before the Clerks of Records and Writs, and the Clerk of Inrolments, 30. before whom to be sworn and taken, out of the jurisdiction, 62. ATTORNEYS. See Solicitors. AUTHORITY. to solicitor to use name of next friend or relator, 49. B. BANKRUPTCY. And see Act cf Bankruptcy. jurisdiction vested ia the Court of Appeal, 2, n. affidavits of service of notice of disputing, may be used at the hearing, 81, n. (6). BILLS OF COMPLAINT. to be marked either "Lord Chancellor," or "Master of the Rolls," 9, D., 49. marked L. C. to be also marked with the name of a y. C, and the suit to be attached to his Court, 9. what to contain, 46. to be divided into paragraphs, 46. prayer of, 46. not to contain interrogatories, 46. form of, 47. indorsement of, 48, n. to be printed, and in what manner, 49. effect of filing, 49. Vfnritten bills may stiU be filed in certain cases and upon certain terms, 49. consequences of not afterwards filing a printed copy, 50. service of, with indorsement, 51a. form of indorsement, 516. effect of service of printed bill, 52. written bill, 52. mode of service, 52. service out of the jurisdiction, 53, n. substituted service, 54. copies to be delivered to the defendant on Jiis paying for same, 65. number of copies and rate of payment, 55. amendment of, by the introduction of new facts, 137. how to be made, 55, 56. defendant's copy, practice abolished, 56. copy amended bill to be served, 56. service on the solicitor, in what cases, 56. defendant in person, where, S?, orders 1 to 11 of 7th August, 1852, not to apply to bills filed before 2nd November, 1852, although afterwards amende^, 5Q, n. (b). former practice as to filing bills and issuing subpoenas may be revived, 50, n. (a), dismissal of, for want of prosecution, when defendant may apply for, 74. order on application, 74. BOOKS OF ACCOUNT. to be taken as primd/aaie evidence, 87. T 2 254 CASE FOR THE OPINION OF COURT OF LAW. not to be directed, 39, 183, n. (6). former practice relating to, 39, u. CERTIFICATES OF JUDGES' CLERKS. See Juiges' Chambers. CHAFFWAX AND HIS DEPUTY. office abolished, 7, n., 15, n. duties to be performed by purse-bearer, 6. CHANNEL ISLANDS. pleas, &c., before whom to be sworn and taken in the, 62. CLAIMS. may be filed in certain cases without special leave, 144 to 147. in other cases, with leave of the Court, 144, n. (c),'145, n. (t), (c), (c), 146, n. (o), (6), (c), and Add., 250, n. (d), 147, n. (o), (6), 148, and n. (d). must be settled and signed by counsel, 149, ii. (o). forms of, 147, 158 to 165. how to be marked, 147. writ of summons abolished, 51a, 147, 148, n. (a). but may be revived, 51, n. (a), 148, n. (o), 151, n. (i). present practice to continue as to claims already filed, 51a. form of, 148, 166. number of defendants, service and appearance, 151. substituted service, 151, n. (6). to be printed, and how, 49. efiect of filing, 49. service of, with indorsement, 51a. form of indorsement, 516. effect of service, 52. mode of service, 52, 151, n. (6). service out of the jurisdiction, 53, n, substituted service, 54, and n. (a), copies to be delivered to the defendant on his paying for same, 55. number of copies and rate of payment, 55. amendment of, and how to be made, 55, 56. copy amended claim to be served, 56. orders 1 to 11 of 7th August, 1852, not to apply to claims filed before 2nd November, 1852, although afterwards amended, 50, ii. (6). former practice as to filing claims and issuing writs of summons may be revived, 50, n. (a). to what cases applicable, 148, n. (rf). who to be defendants in a claim by personal representatives, 149. in other cases, 149, and Add. 250. to be subject to the general practice, 150, and see n. (a), time for showing cause, 151. manner of showing cause, 151. setting down and hearing, 152. short claims, 152, n. (a), motions arising out of, 152. evidence on hearing, 152, n. (6). order to be made on, 152, 153, and notes, efiect of, 153. » bill may be directed to be filed, 153, and n. (g). forms of, 154, 169 to 177. of reference, powers of Masters under, 164. INDEX. 255 CLAIMS — continued. order of reference — continued. persons not parties may be summoned under, 15S. form of summons, 155, 167. may attend proceedings, 155. may be discharged or varied on motion, 157. abatement or defect for want of parties, 155. form of claim to revive, 155, 166. form of summons to revive, 156. caveat against revivor, 156. form of, 156, 168. for supplemental relief without leave, 156. with leave, 156. summons and proceedings, 157. proceedings may be accelerated by consent, 157. if cases provided for require special relief, bill may be filed, 157. consequences of proceeding by bill instead of claim, 157. CLERKS OF ACCOyNTS. offices abolished, 15, u., 28. CLERKS OF ACCOUNTANT-GENERAL, duties, fees and salaries, 24, n. (a), 225, 226. CLERK OF AFFIDAVITS AND HIS ASSISTANT CLERKS, offices abolished, 15, n. CLERK OF THE CROWN. to perform duties of Clerk of the Hanaper, 6. CLERK OF THE HANAPER AND HIS DEPUTY. offices abolished, 15, n. CLERK OF INROLMENTS. may swear affidavits, &c., 30. CLERKS TO THE MASTER OF THE ROLLS AND VICE- CHANCELLORS, appointment of cliief clerks, 12. junior clerks, 13. salaries and retiring pensions, 12, n. tenure of office, 14. to be under control of the judges, 14. to be subject to prohibitions, &c. of 3 & 4 Will. 4, t. 94 . . 14. chief clerks may be removed, 14. CLERKS OF MASTERS IN ORDINARY, retiring allowances to, 20, n. may sell by auction without license or payment of duty, 21. CLERK OF THE PETTY BAG. regulations of the office, 30. CLERKS OF RECORDS AND WRITS. to perform duties of Secretary of Decrees and Injunctions, 29. of subpoena office, 29. of affidavit office, 80. CLERKS TO THE REGISTRARS. to distribute the business among the conveyancing counsel in rotation, 23, 23a. salary of the eleventh clerk, 25, n. (a). CLERK OF REPORTS. office abolished, 15, n. by whom duties to be performed, 26. CLERKS OF TAXING MASTERS. increase of salaries, 30. 256 INDEX. COLONIES. pleas, &o., before whom to be sworn and taken in the, 62. COMMISSIONS. for taking pleas, answers, disclaimers, and examinations within the jurisdiction abolished, 62. for examination of witnesses within the jurisdiction not necessary, 81. power of administering oaths under, 81, n, (a). CONDUCT OF SUIT. may be given to certain parties, 41. CONSEQUENTIAL RELIEF. rights may be declared without granting, 32, 182. CONSIGNEES.— See Judges' ChaMen—tith, " Receivers." CONSTRUCTION OF WORDS. in statutes. See Statutes. in general orders. See General Orders. CONVEYANCING COUNSEL. opinion of, may be acted upon by judges at chambers, 22. practice thereon, 23, n. (a), may be objected to by parties, 22. have to be nominated, 23, 37, n. distribution of business among, 23, 23a. course of proceeding on reference by the Court or a judge at chambers, 23a. on request of a Master, 23o. provision in case of inability or refusal to act, 23ii. not to prevent a reference to any particular one, 23o, 236. abstract of title to be laid before, 236, 37. COPIES, including OFFICE COPIES. of printed bills and claims to be delivered, 55. bf documents for judges in chambers, and parties, 108. office copies of special cases, 181. allowances for, to certain offices to cease, 213. mode of counting folios, 213. of certain pleadings, proceedings, and documents to be made by the parties, and their solicitors, 214. how to be obtkined, 214. when to be ready for delivery, 214. charges for, 215. of bills of costs, how to be made, 215. folios and indorsements of, 215. of affidavits in cftses of injunction and writs of ne exeat, 21 5i certain office copies to be taken as heretofore, 214. and to be produced in Court or at chambers when required, 215. how to be written, 215, 216. consequences of default of solicitor in ftirnishing copies, 215, 216. costs of, allowance of, 216. COSTS. of written bills or copies, 50. of not filing a printed copy after filing a written bill, 60. of affidavits in reply, on motion for decree, and affidavits consequent upon them, 69. of immaterial or irrelevant deposition^, 79. of cross-examination and re-examination of witness who has made an affidavit, 83. of proving debt, trading, or act of bankruptcy, 87. of creditors, of proving debts, 116, n. of parties attending the Judges' Chambers without leave, 120. TVffi/"^-" fULCytrxMyVl^ $'0- INDEX. 257 COSTS— coMimtied. of counsel attending the Judges in Chambers, 120. the Master, 130. of matters in the Masters' Offices ordered to be prosecuted, &c., 123. of parties refusing to employ solicitor nominated by the Master, 126. of non-attendance of parties in the Master's office, 127. of undue delay in the Master's office, 128. of impertinent matter in proceedings in the Masters' Offices, 128. under the Trustee Acts, 210, 211. of copies of pleadings, &c., allowanoe of, 216. of parties suing or defending ixt fvrmi pauperis, 218. of impertinent matter, 218. application for, 219. of settling drafts by counsel other than the conveyancing counsel, 219. COUNTY COURT JUDGES AND OFFICERS. may act as officers of the Court of Chancery, 118, n. (c). COURT OF APPEAL. to consist of the Lord Chancellor and two other judges, 2. jurisdiction of, and how to be exercised, 2, 3, Add. 247. may sit with the assistance of a common law judge, 3, 11, Add. 247. decision by a majority of its Judges, and if equal, decree to stand confirmed, 3. appeal from, to the House of Lords, 3. sittings and business to be regulated by the Lord Chancellor, 4. CREDITORS. See Judges' Chambers. D. DECLARATIONS. may be taken before the Clerks of Records and Writs and the Clerk of Inrolments, 30. before whom to be taken, out of the jurisdiction, 62. DECLARATORY RELIEF. may be granted without consequential relief, 32. DECREES AND ORDERS. And see Orders. notice of decree to be served upon certain persons, 42, time for service of, 42. memorandum of service and affidavit, 42. , application to add to decree, 42. motion for decree. See Motions. directions in, for accounts or inquiries to be numbered, 90. form of, 90. bespeaking minutes of, in the Register Office, 91—94. enrolment of, time for, with and without leave, 94, 95. enlargement of, 95. caveat against, 94. disobedience of, by trader, an act of bankruptcy, 95. against trustees, defendants, not to be found,' 96. orders made at Judge's Chambers for production of documents, forms of, lOlo, 1016, n. orders to stay proceedings in other Courts, eflFect of, 133. DEMURRER. time allowed for putting in, where no answer required, 61. where answer required, 61, n. (a), 62. further time may be granted, 62. of witnesses, 80. DEVISEES IN TRUST. See Trustees. DISABILITY. persons under, may consent to affidavits being used on the hearing, 81. 258 INDEX. DISCLAIMERS. taken within the jurisdiction may be sworn and filed like an affidavit, 62. before whom to be sworn and taken, out of the jurisdiction, 62. may be filed without oath of messenger, 63. alterations in, how to be authenticated, 63. DISMISSAL OF BILL for want of prosecution. See Bill of Complaint. £. ELECTION to proceed at law or in equity. time for obtaining order, where answer not excepted to, 143. where answer excepted to, 143. ENGINEERS. assistance of, may be obtained by the Court or a Judge, 236. cannot be obtained by the Masters, 236, n. (a), 125, n. (6). EVIDENCE. And see Witnesses. mode and practice of examining witnesses abolished, 76. examinations de bene esse within the act, 76, n (a). except any particular witness if the Court shall think fit, 76. not where issue joined before the act, unless by consent or by order, 77. notice {ly plaintiff of evidence being taken either orally or upon affi- davit; 77. time for giving such notice, 78. notice by defendant of evidence being oral, 77. time for giving such notice, 78. by affidavit, after notice by plaintiff and no notice by defendant, 77. orally upon notice by any party with a sufficient interest, 78. if by a party without a sufficient interest, order to be made by the Court, 78. oral examinations, how to be conducted, 78. appointment of examiner. Add. 249. depositions upon, how to be taken, 79. special matter may be stated, 79. objections to be noticed, 79. materiality or relevancy of questions, how to be decided, 79. witnesses' demurrers, or objections to questions, 80. depositions of witnesses to be filed, 80. copies or extracts for parties, 80. commissions for examination not necessary, 81. power of examiners to administer oaths, 81. forms of affirmation and mode of swearing persons of various religious denominations, 81, n. (a), affidavits by particular witnesses, or as to particular facts. See Affidavits. when to be closed, 82, 83. applications to enlarge time, 82, n. (6). cross-examination and re-examination of witness who has made an affidavit, 82. notice of cross-examination, 83. re- examination immediately to follow cross-examination, 83. oral examination before the Court, of witness or party, 83, Add. 249. examination and cross-examination of witnesses on claims, &c., 84. notice thereof, 85. subsequent to the hearing, 85, Add. 249. notice of intention of disputing debt, trading, or act of bankruptcy, 86. books of account to be taken as primd facie evidence, 87. EXAMINATIONS. taken within the jurisdiction may be sworn and filed like affidavits, 62. INDEX. 259 EXAMINATIONS— con*im»ed. before whom to be sworn and taken, out of the jurisdiction, 62. may be filed without oath of messenger, 63. alterations in, how to be authenticated, 63. EXAMINERS. to transmit depositions to the Record Office, 29, 80. appointed by the Court may administer oaths, 29, 81. increase of salary of, and retiring annuity to, 29, n. manner of taking down depositions on oral examinations, 79. to sign depositions on refusal of witness, 79. to notice objections, and state their opinions thereon, 79. not to decide upon materiality or relevancy, 79. EXCEPTIONS FOR IMPERTINENCE. See Imperthence. EXCEPTIONS FOR SCANDAL AND INSUFFICIENCY. exceptions for scandal to be in writing, and signed by counsel, 142. to be heard by the Court in the first instance, 63, 141. vacations not to be reckoned in time allowed for filing or setting down, 64, 141. Orders of 2nd November, 1850, not to apply to references then pend- ing, 64, 141. no order for leave to file nunc pro time, 64, 141. to answers for insufficiency. See Answers. how to be set down for hearing, eind notice thereof, 65, 141. time for setting down exceptions for scandal, 142. parts of pleadings, &c., held scandalous to be expunged by the officer having the custody thereof, 142. EXCEPTIONS TO REPORTS OR CERTIFICATES. See Judges' Chambers. EXECUTORS AND ADMINISTRATORS. And see Trustees. indemnity under decrees on special cases, 183. may pay legacies or residues of infants or persons abroad into Court, 186. discharged by such payment, 187. may obtain order to take account of deceased's debts and liabilities, 196. order not to be obtained until after a year from the deceased's death, or pending proceedings to administer estate, 197. proceedings under, may be stayed by an administration decree, 197. order to be obtained by motion or petition of course, 197. petition or motion-paper and order to be marked with name of judge, and be attached to his Court, 198. form of order, 197. application to the Court by claimant whose claim not allowed, 199. by executors, &c., and creditors, where claim allowed, 199. no new evidence on such application, 200. proceedings thereon, 199. Court may order debts to be paid, or an administration account, 200. contingent liabilities, how to be dealt with, 200. injunction to restrain proceedings at law against, 201. protection afforded to, 202. not to prejudice rights of claimants against assets of deceased, 202. proceedings to be regulated by the practice of the Court, 184. rehearings and appeals, 202. proceedings against, by summons, at the suit of creditors, legatees, or next of kin, 202. 260 INDEX. EXECUTORS AND ADMINISTRATORS— contmuerf. order for administration of personal estate, 203. discretionary power to grant or refuse order, or to give special directions as to its carriage or execution, and to grant same to one or more of several claimants, 203. form of summons, 203. duplicate to be filed in Record Office, 204. stamped copy to be served, 204. filing of, to be a Us pendeits, 204. FEES. abolished and reduced, 220, 221, 223. to be paid into the Bank, 221. power to vary, reduce, or abolish, 222. direct collection by stamps, 222. to be paid by stamps, 222 to 224. stamps to be impressed upon adhesive paper, 224. to be affixed by the parties, 224. to be effaced by the officers, 224. necessary directions to be given by Commissioners of Inland Re- venue, 224, n. (a), unstamped documents to be of no validity, 225. in particular offices, and for particular purposes, viz. for expunging scandalous or impertinent matter, 142. in the office of the Accountant-General, 225. for affidavits, 227. to conveyancing counsel, accountants, merchants, engineers, actu- aries, and other scientific persons, 228. to the doorkeeper of the Court of Chancery (abolished), 228. at the Entering Seats, 229. in the Examiners' Office, 229. in the Judges' Chambers, 230. in the Masters' Offices, 231. in the Record and Writ Clerks' Office, 233. in the Registrars' Office, 236. in the Report Office, 240. in the Lord Chancellor's Principal Secretary's Office, 241. in the office of the Secretary at the Rolls, 242. of Solicitors, 243. in the Taxing Masters' OSee, 246. FORECLOSURE SUITS. sale may be directed upon request of certain parties, 31, Add. 247. but not without the consent of the mortgagor, ex- cept on terms, 31. G. GENERAL ORDERS. See Table of Orders. power of making, under 10 & 11 Vict. c. c. 96, < 193. 13 & 14 Vict. c. 35..63, n. (5). IS & 16 Vict. c. 80.. 98, n. (c). c. 86.. 31, n. (a), 40, n. (6), 50, n. (o), 76, n. (c). construction of words in Orders of 22nd April, 1850.. 144, n. (o). Orders of 7th November, 1852.. 42, ii. (o> Orders of 16th October, 1852. . 103, u. INDEX. 261 GENERAL ORDERS -continued. discharged, 1828, April 3, Orders 7, 9, 10. .64, u. (o). 1833, December 21.. 64, n. (o). 1841, November 11, Order 1..49, n. (a). 1845, May 8, Order 14, Art. 2. .64, n. (a), 217, n. (d). Order 16, Arts. 6, 7, 8, 9. .141, n. (d). Arts. 21 and 22.. 64, n. (a), 143, n. (a). Arts. 23, 24, 25, 26, 27, 28, 29, 30, and 31.. 64, n. (a). Orders 17 and 19. .64, n. (a), 141, n. (d). Orders 38, 39, 40, 41 and 42.. 141, n. (d). GENTLEMAN OF THE CHAMBER. salary of, 6, n. ofSce of one, abolished, 15, u. GUARDIANS AD LITEM. for persons under disability, served vrith orders of revivor or supple- ment, 137. to defend for infants or lunatics on claims, 157, Add. 250 H. HOUSE OF LORDS. appeal to, irom Court of Appeal, 3. I. IMPERTINENCE. practice of excepting for, abolished, 63, n. (d). in proceedings before the Master, may be disallowed, 128. INFANTS. for making wards of the Court, written copies of bills may be filed, 49. may consent to affidavits being read at the hearing, 81. guardians ad litem for, on claims, 157. may concur in special cases by guardian, 179. how guardian to be appointed, 179. order for, may be discharged, if no notice given to guardian, 179. being parties to a special case, how it is to be set down for hearing, 181. INFORMATIONS. See Bills. INJUNCTIONS. vnritten copy bill for, may be filed, 49. to stay proceedings at law. practice assimilated to that of special injunctions, 131. not to be granted as of course, 131. lessee in certain cases not to have, without payment into Court of rent and costs, 132. in applications for or to dissolve, answer to be regarded as an affidavit, 132. efiect of injunction or order of the Superior Courts to stay proceedings in any other Court, 133. delivery of copies of affidavits in oases of ex parte applications, 215. INSUFFICIENCY. See Answers— Exceptions. INTEREST on debts and legacies, 116. INTERROGATORIES. not to be contained in bill, 46. may be filed for the examination of defendants, 57. form of, and numbering, 57. within what time to be filed, 57. 262 INDEX. INTERROGATORIES— continued. copies to be delivered to defendants, 57, Add. 249. time allowed for that purpose, 59. to be marked as office copies, 59. for the examination of the plaintiff, 72. copy to be delivered, 72. statement to be prefixed to, 72. answers to, 72. exceptions to, 72. materiality or relevancy of, 73. IRELAND. pleas, &c., before whom to be sworn and taken in, 62. ISSUE. how to be joined, 75, 76. J. JUDGES' CHAMBERS, proceedings in. Master of the Rolls and Vice-Chancellors may sit at chambers, 98. in conjunction with their court business, 99. with same jurisdiction as if in court, 99, Add. 249. may exercise powers of the Masters, 99, 100. powers given by, ss. 7, 8 and 9 of 15 & 16 Vict, c. 80.. 99. Orders, how to be drawn up and entered, 100. to have same effect as orders of the Court, 100. form of, where accounts or inquiries directed, 100. business to be disposed of at chambers. applications as to guardianship of infants (except the appointment oi guardians ad litem), 101. as to maintenance or advancement of infants, 101. for the administration of estates under 15 & 16 Vict. c. 86.. 101. for time to plead, answer, or demiu:, 101, 102. for leave to amend bills or claims, ib. for enlarging publication or the time for closing evidence, ib. for the production of documents, ib. forms of orders and affidavit, lOlo. ii., lOli. n. relating to the conduct of suils or matters, 101, 1016. as to matters connected with the management of property, including unopposed applications for receivers, 101, 102, 134, n. (6). for payment into court and investment of purchase monies, 102. for stop-orders where the assignor and assignee concur. 102. such other matters as the judge may see fit, or the Lord Chan- cellor may direct, 101. adjournment of, from court to chambers, and vice versd, 102, Add. 250. proceedings by summons, 102. form of summons, 102. the like by chief clerk, 104. preparation and issuing, 104. filing duplicate, 105. stamping copies for service, 105. times for service, 105. extension of, 105. appearances in cases originating in chambers, 105. notice thereof, 105. further attendance without further summons, 106. copy order to be left, 106. summons to proceed, 106. INDEX. 263 JUDGES' CHAMBERS— coniiniied. summons to proceed — continued. judge to be satisfied that all necessary parties served with notice of order, 106. directions to be given as to the accounts and inquiries, evidence, parties and times of proceeding, 106. days appointed for further attendance, 106. service of order may be dispensed with or substituted, 107. judge may order further accounts or inquiries, or direct the considera- tion in open court, 107. entry of summons in book, 107. lists of matters appointed for each day, 108. course of proceedings the same as in Court on motions, 108. no states of facts, charges, or discharges, 108. copies of documents to be made when directed, 108. notice of intention to use affidavit, 108. evidence before examiner to be subject to special directions, 108. judges to order matters to be investigated by themselves and their chief clerks respectively,*108. chief clerks to issue advertisements, 109. summon parties and witnesses, 109. liabilities of parties and witnesses for non-attendance, 110. administer oaths, &c., 109. examine parties and witnesses when directed, 109. practice on examination of witnesses, 109. depositions to be filed, 109. in certain cases certificate may be acted upon without signature of the judge, 110. such certificate to be filed, 110. certificates and reports to be made by chief clerk, and signed by judge, 111. form of, in cases of account, 111. accounts referred to, to be filed, but no copy need be taken, 111. not to set out orders, documents, evidence, or reasons. 111. form of, 112. to be transcribed by the solicitor, 112. no exceptions to, but opinion of judge may be taken, 113. time for taking opinion of judge, 1 14. time for obtaining a summons for that purpose, 114. signature by judge, 114. filing, 114. power of Court to open, 114. time allowed for that purpose, 115. powers of the masters may be exercised by the judges, 115. creditors and other claimants to come in within the time fixed, 115. costs of, 116, n. interest on debts and legacies, 116. advertisements for creditors, 116. form of, 116. entry and notice of claims, 117. office copies of affidavits, 117. adjournment day for hearing, 117. mode of adducing evidence, 117. time for closing evidence, 117. new claim may be entered four days before adjournment day, 117. creditors under 51., 117. no claims to be entered after times fixed, without leave, 117. list of claims, 118. sales to be made with approbation of judge to the best purchaser, and all parties are to join, 118. 264 INDEX. JUDGES' CHAMBERS— contmucd. receivers (including consignees and manages). security and salary, or allowance, 118. general orders as to, to be applicable, 118. recognizances, 119. account and affidavit, 119. book, 119. certificates on passing accounts to be approved and signed without delay, 119. to be filed, 119. accounts, form and verification, 119. notice of surcharge, 119. advertisements, one only, and peremptory, 120. how to be prepared and signed, 120. register of proceedings to be kept, 120. costs of parties attending, without leave, 120. counsel, 120. JUDGES OF COMMON LAW COURTS. may assist the Court of Appeal, Master of the Rolls, and Vice-Chan- cellors, 3. JUDGMENT. may be delivered by the Lord Chancellor when out of o£Sce in certain cases, 6. K. KEEPER OF THE HANAPER, ofiice abolished, 7. duties to be performed by Cleik of the CrowJi, 6. L. LEGACIES. of infants or persons abroad may be paid into court, 186. and invested without request, 187. investment of dividends and accumulations, 188. paid out on application, 187. if improperly paid in, court may dispose of, 187. if too much duty has been paid, 188. if too little, 188. consequences of the nan-payment into court, 186, n. (6). LEGAL TITLE OR RIGHT. may be determined by the court, 40. LIS PENDENS. by the filing of, and appearance to, a special case, 184. by the filing of a summons against executors and administrators, and devisees in trust, 204. LORD CHANCELLOR. construction of term, 1, n. to form with two other judges the Court of Appeal, 2. jurisdiction of, not taken away, 4. to regulate sittings and business ofCourt of Appeal, 4. may deliver judgments when out of office in certain cases, 6. LORDS JUSTICES OF COURT OF APPEAL. appointment, salary, tenure of office, removal, and retiring pension, 1, 2. style and rank, 2. oath of office, 2. jurisdiction in lunacy, 2, n. may concur in making general orders, i5. may sit for the Master of the Rolls or Vioe-Cbancellors, 5, 11. INDEX. 265 LORDS JUSTICES OF COURT OF APPEAL— conjinued. not to sit as judge on appeal from order made by himself, 5, 11. to be of the Judicial Committee of the Privy Council, 5. their officers and attendants, 6. LUNACY. jurisdiction conferred on the Lords Justices, 2, n. LUNATICS. guardians ad litem lot, 157. the committee of the estate may concur in special cases, 178, 179. special guardian for the purpose of concurring in special cases, 179. being parties to a special case, bow it is to be set down for hearing, 181. M. MANAGERS. See Judges' Chambers — Receivers. MARRIED WOMEN. may consent to affidavits being used on the hearing, 81. may, with their husbands, concur in special cases, 178, 179. next friend o^ to be named in special cases, 180. being parties to a special case, how it is to be set down for hearing, 131. MASTER OF REPORTS AND ENTRIES. to countersign Accountant-General's cheques, and to sign office copies &c., and perform such other duties as the Lord Chancellor shall direct, 27. MASTER OF THE ROLLS. And see Master ef the Rolls and Viee- Chancellors. salary of, 7, n. MASTER OF THE ROLLS AND VICE-CHANCELLORS. And see Judges' Chambers. may sit, with the assistance of a common law judge, 3, 11, Add. 24:7. if prevented sitting, may be assisted by Lords Justices, 5, 11. may exercise powers of Masters, 115. MASTERS' OFFICES, proceedings in. And see Masters in Ordinary. until released. Masters to continue to have the powers now vested in them, 121, 124. duties of Masters, 121, n. (6). Masters may summon parties, and wind up matters depending before them, 122. if Master unable to dispose of any matter, he may report to the Court, which may order the prosecution or disposal thereof, 123. Master's report to be brought before the Court by the Solicitor of the Suitors' Fund on default of the parties, 123. no future references to the Masters except in certain cases, 124. remaining Masters to prosecute the pending business, 124. practice assimilated to that of the judges, except Masters' reports, 125. report of Masters to state shortly the result of their inquiries to the Court, 125. repeal of ss. 13, 14 and 15 of 3 & 4 W. 4, c. 94. . 125. time for bringing order of reference into the office, 125. classes to be represented by the same solicitor, 126. course of proceeding subject to control of Master, 126. duration of warrants not to be limited, 127. certain matters to have priority, 127. proceedings ex parte, 127. costs of non-attendance, 127. undue delays to be reported, 127. impertinent matter to be disallowed, 128, 266 INDEX. MASTERS' OFFICES— continued. sales may be made in London or the country, and by a person appointed by the Master, 128. reserved bidding, 129. deposit, 129. by private contract, 129. MASTERS IN ORDINARY. And see Masters' Offices. attendance at the Public OflBce discontinued, 18, 30, n. office of, abolished, except present Masters, 18, 121. no vacancy to be filled up, 18. no future Accountant-General to be a Master, 19. two released from duties, except certain matters, 19. retiring pension, 19. release of remaining Masters, 19. future duties of, 20. rights of, preserved, 20. may sell by auction without licence or payment of duty, 21. may act for each other in case of absence, 21. to meet from time to time to consider additional orders, &c. 22. MATERIALITY. of answers to interrogatories for the examination of plaintiff, 73. of questions not to be decided by Examiners, 79. MERCHANTS. assistance of, may be obtained by the Court or a Judge, 236. cannot be obtained by the Masters, 236, n. (o), 125, n. (6). MINUTES OF DECREES AND ORDERS, bespeaking, in Register Office, 91 to 94. MISJOINDER. course of proceeding where there is a conflict of interest or want of interest in co-plaintiffs, 44. MISTAKES in practice, 41, u. MONTHS. how to be computed, 42, n. MOTIONS. under 14 & 15 Vict. c. 35, o. 19, paper to be marked in the same man- ner as bills, 10. for decree after time for answering expired, 68, Add. 249. notice of, 69. affidavits in support of, 69. answers may be treated as, 69. in support, when to be filed, and list to be given, 69, in answer, the like, 69. in reply, the like, 69. to be confined to matters in reply, 69. costs of, and of affidavits consequent upon them, 69. no further evidence without leave, 69. hearing of, 69. discretionary power of the Court on, 69. N. NE EXEAT REGNO. written copy bill for, may be filed, 49. delivery of copies of affidavits in cases of ex parte applications, 215. NEXT FRIEND. to sign written authority to solicitor, 49. INDEX. 267 o. OATHS. by whom may be administered, 30, u. (o). OBJECTION FOR WANT OF PARTIES. See Parties to Suits, OFFICE COPIES. See Copies. OFFICERS. of the Lord Chancellor to attend the Court of Appeal, 6. under the 15 & 16 Vict. c. 80, not to engage in another employment, 13. payment of, by salaries in lieu of fees, IS. certain allowances for copying abolished, 15, n. to pay fees into the fee fund, 16. not to take gratuities, 17. may be directed to sell and distribute stamps, 17. guUty of &aud relative to stamps may be dismissed, 17. disabled, may be removed, 18. retiring allowances to, 18, n. superannuation allowances to, 18, n. OFFICES ABOLISHED, Clerk of the Hanaper and his deputy, 15, n. (o). Secretary of Decrees and Injunctions, ift. one of the Gentlemen of the Chamber, ib. ChaSTWax and his deputy, ib. Sealer and his deputy, ib. Patentee of the Subpoena Office and his deputy, ib. Clerk of Affidavits and his assistant-clerks, ib. Clerk of Reports and Clerks of Accounts, ib. Doorkeeper, Crier, and Usher, ib. Master in Ordinary, 18. held by Master Lynch, ib., n. (d). OPINIONS. of conveyancing counsel may be acted upon by the judges at cham- bers, 22, may be objected to by parties, 22. ORDERS. And see Decrees and Orders. under 14 & 15 Vict. c. 35, s. 19, to be marked in the same manner as bills and the matter attached to the same Court, 10. bespeaking at the Register Office, 93, 94. ORDERS OF COURSE. of one jndge may be discharged, &c., by another, 10. to what judge application for discharge, &c., to be made, ib. by what judge may be made, ib,, n. P. PARTIAL RELIEF. Court may adjudicate between some only of parties interested in the property in question, and although such property is part only of the property comprised in the same instrument, 38. PARTIES TO SUITS, 40. And see Misjoinder, general rules as to, 40, n. defendants not to take objections for want of, in the following suits, viz. by any residuary legatee or next of kin for the administration of personal estate 41. by any legatee for a legacy charged on real estate, or by any per- son interested in the proceeds of real estate directed to be sold for the administration of the estate, 41. u 26S INDEX. PARTIES TO SUITS— continued. defendants not to take objections for want of, in suits, — continued, by any devisee or heir in a similar suit, 41. by any cestui que trusty for th^ execution, of the trustSj 41 by a person suing on behallf, &c. in suits for the protection of-pro- perty.pending.Etigation.andin cases in the nature of waste, %U by an executor, &c. against a legatee, &c^ fijr the, a,dminis^tipn, of the estate, or execution of the' tftists, 4l, and the Court may require others to be made parties, Scct ti^ other persans.;t()LbeL served wiith notice ofitjie. decree, lio be. bound by,tjie pioceedingB, a^ to have liberty, to attend the. same, and may apply to the Court, to. add to. the decree, 4^, who is to be served with notice, of^ the decree, Add; 24&. trustees to represent persons beneficially.iiijtereetedv iSt Addi 24^. setting down cause on objection for want ofi aljolisbed; 43k personal representative, dispensed with, or another., person ^pointed to represent the. estate, 43, Add. 248. Court may adjudicate between some only ofithe. parties int^ested^ 44. PERSONAL REPRESENTATIVE disB^seiw^j)j,43, PETITIONS under 14 & 15 Vict. c. 35, to be markedti!i.ljie.same.,inanne):. as bills, 10. PLEAS. time allowed for putting in, where no answ^er required, 6L where answer required, 61, D-'fo^) 6^;_ further time, may'tJe granted, 62. taken within the jurisdiction may be sworn ^nd nlect like aii affidavit, 62. ■"' ■'■■■■' ' ■'" " ■ """ -■■ ' '^ ..-. . before whom to be sworn and takeni, out of tlje jurisdijjtion^ 62. may be filed without oath of messenger^ 63. ' '^' ' alterations in, how to be.authenticated, 63. PRODUCTION OF DOCUMENTS. l)yidefes^d?mt,7^i._ by plaintiff, Tl. where ordered, they are to be Ie|t ii),th^,I^(^4,ap4|^ii^Qffl<;e, 72. applications for, at Judges' Chambers, and forms of orders aiu) E^fQdavib 101a. *""'^"'' ' " ' '"■ ^ ' * PUBLIC OFFICE. attendance of Masters at, disc^tinued^ 30« n, PURSEBEARER. to perform duties of- chaff-wax and sealer, 6:^ salary of, 6, n. a QUAKERS. form of affirmation by, and by persons having beejj.Qu^^, 8}, n.j[iO^. QUESTIONS OF LA,\Kj ■ 'riiay.he detqrmiijed.by.the.Court, 3fl» Addi 247v R. R]^p^iy^ii8, c}iam})ex^,ip2.13fen,.(6J» oftappTfcatipflg%,ofjt9,.dj,ss)i|f6e,,ansi|i[pr *9 M-.^^m^f^i^^ *" »™- davit, 134. REGISTRARS. to attend the Court of Appeal, %. appointment 6f additional registrar, his rigli'ts, salary, &c., 25. may be directed to dra* up oftes made by Judges in ohambiers), 100. deposit on appeals to be received by senior registrar and jpaid into the Bank, 25, 26. , ,, , , ■ ., to meet and consider additiotiai drder'S in'd rdgUfetferiSj 2'^. regulations as to countersigning accountailt-'gteftfer^'fe the^iife, and signing o£Sce copies, &c. 27. REHEARINGS. See Appeals. RELATOR. to sign written authority to solicitor, 49. RELEVANCY. of answers trf interrogatories fbr thfe exaiiairlatioh df plSiiltifFj 73. of questions not to be dfetided by examilierSj 79". REPLifcAtlON. form of, 75, a. (6). * REPORTS. of Masters. See Masters' Offices', of Judges' clerks. See Judges' Chambers. RESIDUES OF PERSONALTY. S^-Le^cUs. REVIVOR AND SUPPLEMENT, in case of defijh of the only plaintiff having an intferest) suit may be revived, 135. ii <■ on abatfeih'ent or defefet 8f suit, did'ei niijf be OMained to the effect of an order to revive, or a supplemental decree, 139; application to 'dischai'ge Order, 137; fime for application, 137. efffect of ofder on parties under disSbilit^i 137. supplemental bill unnecessary for the purpose of putting in issue new facts, 137. new facts ma^ be iritroduced by afriehdnlbht or by statement on the record, 137, Add. 250. mode of stating new facts and the prooeedii!)!|^ thereon, 138. no abatement by death or removal of assignees df barikrupts, or insol- vent debtors, being jflsdritiffs, 138 and ri. (6). proceedings by or against the Solicitor 6f thfe TreftStir J' as adiiiiitlistrator to be continued by and against his successor; 139, lib: in case of claims. See Claims. S. SALES. And see Masters' Offices. real estate ma!y be sold at any time pending siiitv 36. property is to be sold with the approbation of the Judge, 37. abstract to be laid before counsel to be approved by the Court, 37; time for delivery off to be spefcified in the conditiofis, 37. in the Judges' chiamb&rs. See Judges' Chambers: SCANDAL. See Exceptions for Scandal and Insufficiency. SCIENTIFIC PERSONS. assistance ofj may be obtained by the Court or a Judge, 236. . cannot be obtained by the Masters, 236, n. (o), 125, n. (6). SCOTLAND. pleas, &c. before whom to be sworn and taken in, 62. SEALER AND HIS DEPUTY, office of, abolished, 15, n. u2 270 INDEX. SECRETARIES. of Lord Chancellor to attend Court of Appeal, 6. salary of principal secretary, 6, n. clerk in his office, 7. of Lords Justices and their salaries, 6. of Vice-Chancellors, salaries of, 7, n. SECRETARY OF DECREES AND INJUNCTIONS. office abolished, 15, n. SECRETARY AT THE ROLLS. clerks in his office, 14. SEPARATISTS. form of affirmation by, 81, n. (a). SETTING DOWN CAUSES, &c. causes to be heard before the Lord Chancellor or Vice-Chancellors, 88. the like, on further directions, or equity reserved, ib. the like, pleas, demurrers, and exceptions, ib, indorsement on Record and Writ Clerk's certificate, and on petition, ib. statements in petition, and order thereon, 89. certificates to be annexed to petitions, ib. when to be set down, ib. deposits on appeals and exceptions, 89. SOLICITORS. accepting office under 15 & 16 Vict. c. 80, not to receive any continu- ing benefit &om their business, 13. to be struck off the roll, 13. to have a written authority from next friend or relator, 49. SOLICITOR OF THE TREASURY. See K«|.j»or and Supplement. SPECIAL CASES. may be stated for the opinion of the Court, 178. concurrence of lunatics, married women, and infants, 178, 179. special guardian for lunatic or infant may be appointed, 179. mode of appointment, 179. order for, may be discharged, in what case, 1 79. how to be entitled, 180. statements in, 180. parties bound by, 181. reference, on hearing, to full contents of documents, 180. inferences to be drawn by the Court, 180. signature by counsel, 181. filing, 181. appearance to, 181. office copies of, 181. parties to, subject to the jurisdiction of the Court, 181. setting down for hearing, 181. in cases where married women, infants, or lunatics are parties, 181 . subpoenas to hear judgment, 181. questions may he determined without consequential relief, 182. Court may refuse to decide, 183. protection and indemnity to executors, administrators, and trustees, 183. decree may be suspended with a view to an appeal, 183. to be a lis pendens, 184. production and reading of documents at the hearing, 184. before the hearing, 184. proceedings to he regulated by the Act and the practice of the Court, 184. parties to, 185. costs to be in the discretion of the Court, 185. rehearings and appeals, 97. INDEX. 271 STAMPS. And see Fees. on orders under the Trustee Acts, 212. STATES OF FACTS abolished, 108. STATUTES. See Table of Statutes. construction of words in, 1, n. (o). 13 & 14 Vict c. 35.. 178, n. 15 & 16 Vict. c. 86.. 41, n. STOP-ORDERS. application for, to be made at chambers, when the assignor and assignee concur, 102. SUBPCENA OFFICE. office of patentee and his deputy abolished, 16, n., 29, n. SUBP(ENA TO APPEAR AND ANSWER. abolished, except as to bills filed before 2nd November, 1852.. 51(i. preictice as to, may be revived, 50, n. (o.) present practice to continue as to bills already filed, 51a. SUMMONS OF JUDGE. See Judges' Chambers. SUMMONS ON CLAIM. See Claims. SUMMONS AGAINST EXECUTORS AND ADMINISTRATORS AND DEVISEES IN TRUST. See Titles " Eiecutors and Adminis- trators" and " Trustees." SUPPLEMENT. See Revivor and Supplement. T. TAXING MASTERS, 30. TIME. how to be reckoned under the Bankrupt Law Consolidation Act, 1 849, 86, n. (d). power of the court and judge in chambers to enlarge or abridge, 217. addition to, in case of neglect to furnish copies of proceedings, 217. vacations, when not to be reckoned, 217. times of, 64, n. (6), 217, n. (e), expiration of, on a day on which the offices are closed, 218, n. limited after a date or event, how to be reckoned, ib. " months" to mean lunar months, 42, n. (6). of the day for service of proceedings, 218, n. TRAINBEARER. of Lord Chancellor, salary of, 6, n. of Lords Justices and their salaries, 6. of Vice-Chancellors, salaries of, 7, n. TRANSFER. of causes, &c. firom the late V.C. of England to V.C. Cranworth, 8, n. from the late V.C, Wigram to V.C. Knight Bruce, ib. from the late V.C. Knight Bruce to V.C. Parker, ib. from tbe late V.C. Cranworth to V.C. Kindersley, ib. TRAVERSE. of bill by defendant, 75. TRUSTEES. not to be found, decree against, 96. indemnity under decrees on special cases, 183. or a majority of them may pay trust monies, and transfer stocks and securities into court, 189. majority may act without the concurrence of the others, 194, 195. where the sum paid in is less than the full amount, 189, n. (c). consequences of their not so doing, 189, n. (e). affidavit to be made, 190. Z72 INDEX. TRUSTEES— continued. affidavit to be made — conHnfeed. heading and contents olj 190, 193 -td 1B5. heading of the account, 190. office copy to he produced 'to the Aceoiintahl-General, 193. duties of the Accountant-Geneiral, 19^. , investment thereof, and of dividends and acciimuIationB, 195. notice to the persons interested, 1'93. discharge of, 191. trust mooJeB tb be dealt *itih tiy fli% CbUH i»i peliSdh; i9U who to apply, 194. statement in petition, 192, n. (a), service ef petition on trustees and p^'ties interesKn}) 192, addressof tii^ p^titibhe"!- fbt sfirvifefe, il94. ^^ (Steditbts riiay obtaih ordet ih a sUiilhiai'jr *dy for the ^dihimstrafion of the realty of a deceasM, vtetfed ih f iJilStefis by dfevise, who arte em- powered tb Sell ahd givfe JBfcSiJite, J294. applications for such order to he gbVei-iied by tlSfe i*6vifeidns respecting applications for an order against esecu^ors and administrators, relating to tlie person^ estate of a deceased (see EiecutDfi and Afjhkfstftjrtyj), 2'04. TRUSTEE ACTS 1850 and U6i. applications under, by whom to be made, 205. may be mad£ at ch^nib^si 206. practice thereon, 210. order thereon, S07. may be made to the Court, 20t. order thereon, 208. ord^ undel-, may be mad^ ifi a bause br mattfer,- 30^. orders under, founded on certain edlegations, to be cotfehi^ivc Evidence theredf, 809. tb be charged with Stamp duties, 212. money belonging to infants Had lunatics may be paM ifit^ G-oiirl; 210. costs under, 211. postponement of order until rig^t deiilared V.f Sitif j Zi I. U. USHERS. of Lords Justices and their salaries, 6. of Vice Chancellors, salaries of, f, note. V. VACATIONS, 04, n. (6). VICE-CHANCELLORS. And sfie MUsf^ ef tht Molls and Vice-Chan- cel/oi'a, afid Judges' Chatiibirsi salaries Slid retiring pensions, 7," n., d, A. salaries of officers, ib., and 9, n. appointment of one, in the place of Sir J. Wigrani i his officers, &c., 7, 8. of successors to Sir G. J. Turner ; their officers^ &o., 8, 9'. W. WITNESSES. And see Evidence. refusing to be sworn or to answer, course to be adopted, 79^ demurrers, or obieetions of, to questions, to be taken down by the ex- aminer and decided by the Court, 80. practice relating to, ib. n. (a). INDEX. 273 WITNESSES— continued. who have made affidavits, cross-examination and re-'Cxamination of, 82, 84. expeuces of, ib, subpcena for attendance of, before examiners, on claims, motions, and petitions, 84. parties to suits may give evidence, 87. but a wife cannot be a witness against her husband, ib., n. (c). no longer necesary to obtain order for leave to examine a defend- ant, ib. may be examined de bene esse, ib. may be examined vivd voce by the Masters, ib. BY THM SAME AVtHOR. Price 14s., boards. The STATUTES and ORDERS relating to Practice atid Pleading in the High Covirt of Chancery, from 1813 to fiaster Term, 1847, classified according to the respective proceedings in a Suit, with a Time Table and Notes. . " This is an exceedingly useful method in a work on the practice of the Court J for the saving of time, by readily finding whatever may be required, is of the greatest moment both to Counsel and Solictors actively engaged in the midst of pressing business. This is a very useful collection of Statutes and Orders." — Legal Observer. S. SWEET, Law Bookseller, 1, Chancery Lane. LONDON: PRINTED BY C. ROWORTH AND SONi, BELL YARD, TEMPLE BAR.