■■■. ■■■:■.■' ^ .-■ ■' ''■:■■■:..:. , ■ ' ' : ' ' ' ■ . . ■ (ftmnttll ifouu Iktinnl Htbrarj) iKara^aU iEquttg (EolUrtimt, (Sift of IE. 1. Marshall. E.ffi. $. 1H34 CORNELL UNIVERSITY LIBRARY 3 1924 084 260 581 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/cu31924084260581 THE PEACTIOE OF THE CHANCERY DIVISION OP THE f&ftflft eotttt of 3fttj8tto« NOVEMBER, 1879. THE PRACTICE OP THE CHANCEEY DIVISION OF THE Hts& Court of justice; AND ON APPEAL THEREFROM. FOE THE USE OF PBACTITIONEKS AND STUDENTS. BY JOHN F. HAYNES, LL.D., AUTHOR OP "THE STUDENT'S STATUTES," "THE STUDENT'S LEADING* CASES/ &C, &C. LONDON: STEVENS & SONS, 119, CHANCERY LANE, fafo $ttbtts&e:ts mxb §aofat\lm. 1879. I-ONDOK : BRADBORV, AGNEW^ & CO., PRINTERS, "WHITEFRIARS, PREFACE. This work is not simply an addition to the many already existing upon the subject of the Judicature Acts and Rules. It owes its origin chiefly to the enactment in the Judicature Act, 1875 (s. 21), to the effect that the former practice, where not inconsistent with the Acts or Eules of Court, may continue to be used in the High Court of Justice and in the Court of Appeal ; and an attempt has been made, so far as the Chancery Division is concerned, to blend the old and the new procedure as far as possible into " one harmonious whole." In the Chancery Division in particular, very much of the procedure has been almost untouched by the, in some •respects, radical changes of recent years. Especially is this the case in regard to the practice of the Judges' Chambers, and on Motions and Petitions, and in the Pay Office. An absolute knowledge of the effect of the. grafting of the new system upon the old is not to be expected in every matter of detail; nor, indeed, can it be attained, Vl PREFACE. as, in many cases, it seems that considerable lack of uniformity and differences of opinion respecting some of the minor points of procedure exist in the various Offices and Chambers. In the main, however, the Author ventures to think that the book will be found useful to Practitioners and Students in both branches of the profession; and the more so, as it is believed that, however inadequately, it will fill a place hitherto unoccupied by any other work. The Author desires to express his great indebtedness to Mr. John Biddle,"bf the Master of the Rolls' Chambers, who has perused the whole of the sheets, and made many valuable additions and suggestions. London, Octoler, 1879. TABLE OF CONTENTS. PAGE TABLE OF CASES xxi TABLE OF STATUTES xxx iii TABLE OP THE EULES OF THE SUPREME COURT . . xxxviii ADDENDA ET CORRIGENDA xliii INTRODUCTION 1 PART I. THE OEDINAEY PROCEEDINGS IN AN ACTION IN THE CHANCEEY DIVISION, AND ON APPEAL THEEEFEOM. CHAPTER I. PARTIES. (1.) In General. — As to Plaintiffs 5 (2.) In General. — As to Defendants 8 (3.) Addition, Striking Out, and Substitution of Parties generally . . 9 (4.) As to Change of Parties on a change or transmission of interest or liability 11 (5.) As to adding Parties by service of Notice of Judgment . . . 15 (6.) As to appointing or dispensing with a representative of a Party or Parties 19 CHAPTER II. THE WRIT OF SUMMONS. (1.) General Regulations 21 (2.) Indorsements 21 (3.) Joinder of Causes of Action 24 (4.) Issuing the Writ 26 (5.) Renewing the Writ 28 (6.) Amending the Writ 29 (7.) Registering the Action as a Lis Pendens 31 (8.) Service of the Writ .33 viii TABLE OF CONTENTS. CHAPTEE III. l-AOK PROCEEDINGS BY THE DEFENDANT BEFORE THE PLEADINGS. (1.) Appearance 3E * (2.) Application to set aside the Writ or Seryice thereof ... 42 (3.) Interpleader . ... . . ' . • • • '. . 43 (4.) Removal of the Action from a District Registry to London . . 45 (5.) Payment into Court 46 (6.) Obtaining Disclosure from Plaintiff's Solicitor . . . .47 (7.) Proceedings to bind a person not a Party to the Action . . . 47 CHAPTER IV. PROCEEDINGS IN CASE OF NON-APPEARANCE. (1.) The Affidavit of Service 51 (2.) Plaintiff's proceedings in an Action for a Debt or Liquidated Demand '. ... 61 (3.) Plaintiff's proceedings in an Action to recover Goods and Damages, or either of them 64 (4.) Plaintiff's proceedings in an Action for a Debt or Liquidated Demand, and also for the Detention of Goods and Pecuniary Damages, or Pecuniary Damages only 68 (5.) Plaintiff's proceedings in an Action for the Recovery of Land only 59 (6.) Plaintiff's proceedings in an Action for the Recovery of Land and for Mesne Profits or arrears of Rent in respect of the premises claimed or for Damages for the breach of any Contract under which the premises are held . 60 (7.) Plaintiff's proceedings where the Writ is indorsed with a Claim for an Account under Ord. III., t. 8 61 (8.) Plaintiff's proceedings in Actions assigned to the Chancery Divi- sion by s. 34 of the Judicature Act, 1873, where no Order for an Account is made under Ord. XV 62 (9.) Defendant's proceedings to set aside a Judgment entered for want of appearance 62 CHAPTER V. PLAINTIFF'S PROCEEDINGS BEFORE THE PLEADINGS IN CASE OF APPEARANCE. (1.) Application to set aside Appearance . , . . . 64 (2.) Application for liberty to sign Judgment, notwithstanding Ap- pearance, where the Writ is specially indorsed under Ord. Ill r - 6 '.64 (3.) Proceedings where the Writ is indorsed with a Claim for an Account under Ord. III., r. 8 gg TABLE OF CONTENTS. IX. , PAGE (4.) Proceedings where the Defendant has paid money into Court ■ 67 (5.) Applications for names of Persons who are Co-partners in a de- fendant firm .68 (6.) Application that the Action may proceed in the District Registry 68 CHAPTER VI. THE PLEADINGS. (1.) General Regulations 69 (2.) The Statement of Claim 72 (3.) The Statement of Defence 74 (4.) Set-off and Counter-Claim 77 (5.) The Statement of RepV 81 (6.) Pleadings subsequent to Reply 82 (7.) Demurrer 82 8.) Pleading Matters arising pending the Action .... 87 (9.) Moving upon an admission of facts in the Pleadings . . . 89 (10.) Amending Pleadings 91 CHAPTER VII. PROCEEDINGS IN DEFAULT OF PLEADING. (1.) Default in delivery of Statement of Claim 97 (2.) Default in delivery of a Defence or Demurrer .... 98 (3.) Proceedings to set aside Judgment for want of Defence . . . 101 (4.) Proceedings in default of delivery of a PleadiDg subsequent to Defence 101 (p.) Proceedings where issues arise other than between Plaintiff and Defendant, and a Party to any such issue makes default in de- livering a Pleading 101 CHAPTER VIII. EVIDENCE. (1.) Admissions . . . . . 103 (2.) Documentary Evidence 104 (3.) Evidence Viva Voce : .... 108 (4.) Evidence by Affidavit 117 (5.) Examination of Witnesses de bene esse 129 CHAPTER IX. TRIAL. (1.) Notice of Trial and Countermand of Notice 131 (2.) Proceedings to settle Mode of Trial 132 (3.) Place of Trial 136 TABLE OF CONTENTS. PAGE (4.) Entering the Action for Trial 137 (5.) SpecialJury 1*0 (6.) Obtaining a View for the Jury 141 (7.) The Brief . . 141 (8.) Advancing and Postponing the Trial 142 (9.) Trial of the Action 143 (10.) New Trial 145 CHAPTER X. JUDGMENT. (1.) Motion for Judgment 149 (2.) Entry of Judgment 153 (3.) Rectifying and Adding to Judgments 158 (4.) Eegistration of Judgments 159 CHAPTER XI. FURTHER CONSIDERATION iGl CHAPTER XII. EXECUTION. (1.) In general 166 (2.) Service of the Judgment 171 (3.) Application for Leave to issue Execution 172 (4.) Application to stay Execution 173 (5.) Writ of Fieri Facias, and Writs in aid thereof 174 (6.) Writ of Elegit, and Writs in aid thereof 178 (7.) Attachment of Debts 181 ' (8.) Charging Orders 183 (9.) Writ of Possession 185 (10.) Writ of Delivery 186 (11.) Writ of Sequestration 186 (12.) Writs of Fieri Facias de bonis Ecclesiasticis and Sequestrari Facias de bonis Ecclesiasticis 189 (13.) Writ of Attachment 190 (14.) Committal to Prison 193 (15.) Renewal of Writs of Execution 195 (16.) Amendment of Writs of Execution 196 (17.) Registration of Writs of Execution 198 (18.) Discharging and Setting aside process of Execution , . . 197 (19.) Enforcing the Judgment in Scotland or Ireland . , , . 197 (20.) Enforcing in England an. Irish or Scotch Judgment . . , 198 TABLE OP CONTENTS. XI CHAPTER XIII. 2-AGB APPEALS TO HEE MAJESTY'S COUET OF APPEAL! (1.) Constitution and Jurisdiction of the Court of Appeal . . .199 (2.) Cases in which no Appeal lies, and in which no Appeal lies with- out leave 202 (3.) Procedure on Appeal 204 CHAPTER XIV. APPEALS TO THE HOUSE OF LOEDS. (1.) Statutory Provisions * 215 (2.) Procedure on Appeal 217 PART II. PARTICTJLAK ACTIONS. CHAPTER I. ACTION FOE PAETITION; OE FOE THE SETTLEMENT OF BOUNDAEIES. (1.) Proceedings in case of an actual Partition 225 (2.) Sale in lieu of Partition, under the Partition Acts, 18G8 and 1876 231 (3.) The Settlement of Boundaries 236 CHAPTER II. ACTION FOR FORECLOSURE 237 CHAPTER III. ACTION FOR REDEMPTION 243 CHAPTER IV. ACTION FOR SPECIFIC PERFORMANCE 248 Xll TABLE OF CONTENTS. CHAPTER V. PAGE INTERPLEADER ACTION 252 CHAPTER VI. ACTION TO PERPETUATE TESTIMONY .... . 254 PART III. THE STATUTORY JURISDICTION OF THE CHANCERY DIVISION. INTRODUCTION : ... 257 CHAPTER I. THE SETTLED ESTATES ACT, 1877. (1.) Settlement.— Settled Estates 258 (2.). Jurisdiction and Powers of the Court 258 (3.) Leases 260 (4.) Sales 265 (5.) Dedication and Laying Out of Roads, &c. . • ... 265 (6.) Conveyance 266 (7.) Application of proceeds of Sale or of Monies to be set aside under Leases of Minerals 267 (8.) Proceedings for Protection of Settled Estate .... 268 (9.) Procedure under the Act 269 CHAPTER II. STATUTES RELATING TO CHARITIES. (1.) Order or Certificate of Charity Commissioners j and Regulations concerning applications therefor 281 (2.) Sir Samuel Romilly's Act 283 (3.) The Charitable Trusts Acts, 1853 to 1869 284 (4.) The Charitable Uses Acts 295 (5.) Jurisdiction under Miscellaneous Acts relating to Charities . . 296 TABLE OP CONTENTS. Xlii CHAPTEE III. THE LEOACY DUTY ACT 297 CHAPTER IV. THE TRUSTEE RELIEF ACTS 299 CHAPTER V. THE TRUSTEE ACTS, 1850 AND 1852 306 CHAPTER VI. THE LAW OF PROPERTY AND TRUSTEES' RELIEF. AMEND- MENT ACTS 326" CHAPTER VII. THE LANDS CLAUSES CONSOLIDATION ACT, 1845 . . .329 ' CHAPTER VIII. 1 THE COPYHOLD ACTS 341 CHAPTER IX. THE COMPANIES ACTS, 1867 and 1877 342 CHAPTER X. THE RAILWAY COMPANIES ACT, 1867 349 CHAPTER XI. ' THE MARRIED WOMEN'S PROPERTY ACT, 1870 .... 3 56 XIV TABLE OF CONTENTS. / CHAPTEE XII. PABE \THE CUSTODY OF INFANTS ACT, 1873 357 CHAPTEE XIII. THE VENDOE AND PURCHASER ACT, 1874 359 CHAPTEE XIV. THE TRADE MARKS REGISTRATION ACTS 360 CHAPTEE XV. JURISDICTION UNDER CERTAIN MISCELLANEOUS STATUTES 362 PART IV. PROCEEDINGS BY AND AGAINST PARTICULAR PERSONS. — » — CHAPTEE I. INFANTS. (1.) When Plaintiffs ... 366 (2.) When Defendants . . , , 370 CHAPTEE II. LUNATICS. (1.) When Plaintiffs 375 (2.) When Defendants 375 CHAPTEE III. PERSONS OF UNSOUND MIND NOT SO FOUND BY INQUISITION. (1.) When Plaintiffs 377 (2.) When Defendants 377 TABLE OF CONTENTS. XV CHAPTER IV. MARRIED "WOMEN. (1.) When Plaintiffs 380 (2.) When Defendants 382 CHAPTER V. PARTNERS. (1.) When Plaintiffs 3S5 (2.) When Defendants 386 CHAPTER VI. PAUPERS. (1.) When Plaintiffs 388 (2.) When Defendants 390 PART V. PEOCEEDINGS IN THE JUDGES' CHAMBEBS. — * — CHAPTER I. GENERAL COURSE OP PROCEEDINGS IN CHAMBERS IN THE CHANCERY DIVISION. (1.) Jurisdiction and Powers of the Judges and Chief Clerks . . . 391 (2.) Directions to District Registrar to take Accounts or make Inquiries 396 (3.) Summonses and the Return thereof 398 (4.) Vacation business 40S (5.) Evidence in Chambers 405 (6.) Orders made in Chambers 408 (7.) Allowance pending Litigation 409 CHAPTER II. ADMINISTRATION OF ESTATES ON SUMMONS . . . .411 XVI TABLE OF CONTENTS, 1 CHAPTER III. PACJB PROCEEDINGS UNDER JUDGMENTS AND ORDERS. (1.) Conduct of Cause or Proceedings 415 (2.) Carrying in Judgment or Order 415 (3.) Summons to Proceed 416 (4.) Directions as to Prosecution 417 (5.) Parties entitled to Attend- . - 417 (6.) Additional Accounts or. Inquiries 420 (7.) Claims ••,..... 420 (8.) Inquiries as to Legacies and Annuities . . . . . . 427 (9.) Inquiry as to Title in Actions for Specific Performance . . 428 (10.) Accounts- 429 (11.) Settlement of Deeds 433 (12.) Sales by the Court ■ 436 CHAPTER IV. ADJOURNMENT FROM COURT TO CHAMBERS AND VICE VERSA 449 CHAPTER V. INFANTS. (1.) Appointment and Removal of Guardians 451 (2.) Maintenance and Advancement _ 453 (3.) Management of Property .455 (4.) Marriage and Marriage Settlements 456 CHAPTER VI. PERSONS OF UNSOUND OR WEAK MIND NOT SO FOUND . 460 CHAPTER VII. THE CHIEF CLERK'S CERTIFICATE ... 461 CONTENTS. < xvii" •PART VI. INTEELOCUTOEY AND INCIDENTAL , APPLICATIONS, AND MISCELLANEOUS AEATTEES. «j - < * ■4 CHAPTER 'I. -><-_ • '-••- - - <•- •• PAGE MOTIONS AND PETITIONS. . . : .. . (1.) Motions 467 (2.) Petitions • •«. 473 CHAPTER II. DISCONTINUANCE AND WITHDRAWAL OF STATEMENT OF CLAIM OR DEFENCE 481 CHAPTER III. STAYING PROCEEDINGS 483 CHAPTER IV. TRANSFER AND REMOVAL. (1.) Transfer from one Division to another, or from one judge to another of the Chancery Division 489 (2.) Transfer from a District Registry to London, and vice versa . 492 (3.) Removal of Causes and Matters from the High Court of Justice to a County Court 493 (4.) Removal of Causes and Matters from an Inferior Court to the High Court of Justice 494 CHAPTER V. CONSOLIDATION OF ACTIONS 498 CHAPTER VI. DISCOVERY. (1.) By Interrogatories 500 (2.) Discovery of Documents 507 (3.) Discovery by Inspection of Documents 511 (4.) Discovery by Inspection of Property 517 b XViii CONTENTS. CHAPTEE VII. PAGB APPLICATION FOB ORDER FOR INQUIRIES AND ACCOUNTS . 619 CHAPTER VIII. SPECIAL CASE. (1.) When stated by the parties to an action under Ord. XXXIV. . . 520 (2.) Under 13 & 14 Vict. c. 35 522 CHAPTEE IX. REFERENCES TO REFEREES AND ARBITRATORS. (1.) References for Report 524 (2.) References for Decision ■/ '• • 53 ° CHAPTEE X. INJUNCTIONS AND RESTRAINING ORDERS, AND WRITS AND ORDERS IN THE NATURE THEREOF. (1.) Injunctions °37 (2.) Mandamus 542 •(3.) Restraining Orders under 5 Vict. c. 5 543 (4.) Distringas 544 (5.) Stop Orders 547 CHAPTEE XI. RECEIVERS. (1.) Appointment of Receiver 549 (2.) The Receiver's Powers, Duties, and Liabilities .... 554 (3.) The Receiver's Accounts 556 (4.) Discharge of Receiver 560 CHAPTEE XII. PROCEEDINGS IN THE CHANCERY PAT OFFICE. (1.) Regulations as to Orders to be acted upon by the Chancery Paymaster 5g2 (2.) Payment and Transfer into and Deposit in Court . . . 564 (3.) Placing on Deposit and Investment of Money in Court '. . 567 (4.) Carrying over Securities and Cash in Court to Separate Accounts 571 CONTENTS. xk PASS (5.) Payment of Dividends and Interest on Fund in Court . . .571 (6.) Payment of Money, and Sale, Transfer, and Delivery of Securities and effects out of Court 575 (7.) Miscellaneous Regulations 582 CHAPTEE XIII. COSTS. (1.) In General 585 (2.) Security for Costs 588 (3.) Taxation of Costs 593 CHAPTEE XIV. SOLICITORS. (1.) Admission 608 (2.) Striking off the Roll 609 (3.) Re-admission 610 (4.) Taking out and Renewing Certificate to Practice . . . . 611 (5.) Change of Solicitor or Agent 612 (6.) Delivery and Taxation of Bills of Costs under 6 & 7 Vict. c. 73 . 613 (7.) Enforcing Solicitor's Lien 616 CHAPTEE XV. ARREST ON MESNE PROCESS. (1.) Writ of Ne Exeat Regno 617 (2.) Arrest under the Debtors Act, 1869 619 CHAPTEE XVI. PROHIBITION 621 CHAPTEE XVII. TIME 623 APPENDIX 625 INDEX 635 b 2 TABLE OF CASES. Abergavenny (Lord) v. Thomas, 236 Abud v. Riches, 191 Acaster v. Anderson, 411 Acres v. Little, 369 Adams, Re, 265, 608 Adderley r. Dixon, 248 Aird, Re, 499 Aitkin v. Dunbar, 473 Albion Steel Co., % 423 Alexanders. Osborne, 384 Allen v. Kennet, 25 Allhusen v. Labouchere, 502, 504 Alvine v. Bond, 440 Ambrose, Re, 207 Amos v. Chadwick, 499' Anderson r. Bank of British Columbia, 503, 505 Andrews, Re, 265 «. Craddock, 366 Angell v. Baddeley, 177 Anglo-Italian Bank v. Davies, 180, 550 Anonymous, 139, 302, 366, 383, 432, 452 Anson v. Towgood, 442 Anstey r. North and South Woolwich Sub- way Co., 506 Appleton i'. Cbapel Town Paper Co. , 5 Arden, Lord, Re, 331 Armitage v. Elworthy, 433 Ashley v. Taylor, 505 Ashton Charity, Re, 284 v. Wood, 466 Ashworth v. Ontram, 190, 203, 213, 594 Associated Home Co. v. Whichcord, 48 Atherley i: Harvey, 503 Atkins, Re, 12 v. Taylor, 75 Attenborough v. London and St. Katlic- rine Docks Co., 45 Attorney-General v. Corporation of Hali- fax, 473 v. Day, 550 a. Ray, 106 v. Swansea Improve- ment Co., 173,214 v. Tomline, 158 v. Wilson, 104 i Attwood v. Chichester, 63, 382 Austin r. Amhurst, 89 Ayles v. Cox, 317 Aynsley v. Reed, 244 Back i\ Hay, 134 Bacon v. Bacon, 505 Bagnall v. Carlton, 184 Bagot v. Easton, 24 Baillie's Trusts, Re, 209 Bainbrigge v. Blair, 560 Baiues v. Wormsley, 600 Bamford v. Watts, 446 Barber, Re, 304 Barlee v. Bailee, 382 Barlow v. Bailey, 518 Barnes, Re, 389 Barnett v. Moxon, 319 Barrington, Re, 327, 474 Barton v. Chambers, 470 v. Latour, 446j Bastard v. Clarke, 239 Batley v. Kynock, 518 Battell, Re, 303 Battersby's Trusts, Re, 321 Banm, Re, 589 Baxter, Re, 315 Beall v. Smith, 377 Beauclerk, Re, 302, 304* Beaufort (Duke of) v. Berty, 453 Beavan v. Carpenter, 255, 256 Beavor v. Luck, 245 Becke, Re, 614 Beckett v. Buckley, 244 Beckingham v. Owen, 65 Beddington v. Beddington, 28, 88, 43 Beddow v. Beddow, 538 Bedford Charities, Re, 284 Begg v. Cooper, 65 Beioley v. Carter, 259 Belcher v. Belcher, 415 Bell v. Wilkinson, 85 Benand, Re, 451 Benecke v. Frost, 48 Bennett v. Baxter, 415 v. Moore, 90 Benson v. Paull, 542 XX11 TABLE OP CASES. Bentley v. Craven, 410 Berdan v. Birmingham Small Arms Co. , 206 v. Greenwood, 47, 93 Berkeley v. Standard Discount Co., 501 Berry v. Exchange Trading Co., 473 Besant, Re, 358 Bigg, Re, 302 Bigsby v. Dickinson, 212, 213 Biola, The, 502 Bingley School, Re, 281 Birch, He, 334 e. Anderton, 182 Birtle, Re, 258 Bissicks v. Bath Col. Co., 175 Blackburn Union v. Brooks, 118 Blackwood, Re, 476 Blake v. Albion Life Assurance Co., 93 v. Appleyard, 81 v. Smith, 377 Blanchard, Re, 321 Bligh, Re, 460 Bloxam v. Metropolitan Railway Co., 472 Blunt v. Heslop, 614 Blyth v. Green, 379 Boddy v. Wall, 96 Bolton, Re, 304 v. Bolton, 109 Bolton Estates Act, Re, 268 Bond v. Barnes, 367 Bonelli, Sec. Co., Re, 302 Bonfield v. Grant, 370 Bordier v. Burrell, 134 Bourton v. Williams, 239 Bower v. Hartley, 48, 49 Bowey v. Bell, 586 Bowles v. Rump, 225 Bown v. Stenson, 444 Box, Re, 327 Boyes v. Cook, 149 Boyle v. Bettwys, &c. Co., 550 Bbynton v. Boynton, 15 Bradshaw, Ex parte, 306 v. Bradshaw, 452 Brackenbury, Re, 324 Brandon v. Brandon, 335 Brandreth's Trade Mark, Re, 361, 585 Braye, Re, 572 Brearly, Re, 277 Breed, Re, 454 Breton v. Mockett,' 149 Brewer, Ex parte, 451 Briant v. Tibbut, 466 Bright v. Marner, 48 Bristol, &c, Railway Co., Re, 349 Bristol School, Re, 330 British Dynamite Co. v. Krebs, 224 Broadwood, Re, 267 Broadwood's Settled Estates, Re, 277 Brocklebank v. King's Lynn Steamship Co., 590 Bromley, Re, 614 Brooke v. Wigg, 118, 134 Brookfield v. Bradley, 159 Brophy v. Bellamy, 454 Brown, Ex parte, 283 v. Brown, 369 v. Cole, 245 v. Oakshott, 447 v. Rye, 494 o. Thames, &c, Co., 501, 509 - v. Weatherhead, 369 Browne, Re, 331, 332 Browning v. Sabin, 190 Bryant, Re, 305 Bryson o. Warwick and Birmingham Canal Co., 110 Buccleugh (Duke of) v. Metropolitan Board of Works, 535 Buckworth v. Buckworth, 454 Budding v. Murdock, 92 Bullen v. King, 587 Bulley v. Bulley, 616 Bullock v. Corrie, 505 Burdin's Will, Re, 258 Burgoine v. Taylor, 143, 148 Burmester v. Moxon, 240 Burnell's Estate, Re, 330 Burnell v. Burnell, 232 Burrell, Ex parte, 609 Burroughs v, Elton, 421 Burroughs, Lynn, & Sexton, Re, 250, 358 Barton v. Roberts, 181 Bustros v. White, 203, 505, 507, 513, 514 Butler v. Butler, 454 Byrd v. Nunn, 71, 75, 76, 103 Caddiok, Re, 274, 452 Callander v. Hawkins, 89 Cambrian Railways Co., Re, 355 Cameron v. Reynolds, 178 Campbell v. Attorney-General, 255 v. Campbell, 367 v. Dalhousie, 254 v. Holyland, 241 Canadian Oil Works v. Hay, 73 Canning v. Canning, 228 Cardell v. Hawke, 422 Carne v. Brancker, 164 Carr, Re, 261 Carver v. Pinto Leite, 504 Cashin v. Craddock, 93, 508 Cast v. Poyser, 406 Castro v. Murray, 485 Cauty v. Houlditch, 472 Cawthorne, Re, 302, 303 Central African Co. v. Grove, 79 Chamberlain, Re, 272 Chambers, Re, 455 v. Green, 621 Champion v. Formby, 89 Chapman v. Real Property Trust, 490 Charity Commissioners, Ex parte, 292 •Charnock, Ex parte, 609 TABLE OP CASES. xxm Chennell, Re, 203, 212 Chesterfield Collieries Co. v. Black, 92, 506, 509 Chilcott, Re, 278 Child v. Stenning, 8, 9 Chilton v. Corporation of London, 89 Cholmondeley v. Clinton, 245 Christian v. Field, 244 Christie v. Ovington, 311 Clarendon (Earl) v. Hornby, 228 Clark v. London School Board, 338 Clarke's Charity, Re, 2S3 Estate, Re, 330 Clarke, Re, 332 v. Callow, 71 v. Cookson, 74, 133 v. East India Co., 115 Claytons. Clarke, 451 * v. Kenton, 305 Clegg v. Rowland, 420, 421 Clement v. Griffith, 472 Clergy Orphan Corporation, Re, 327 Cleveland (Duke of), Re, 268 Clitheroe's Settled Estates, Re, 267 Clowes v. Hilliard, 10 Clutton r. Lee, 33, 90 Coal Consumers' Association, Re, 423 Coal Economising Gas Co., .Re, 109, 472, 477 Cockle v. Joyce, 132, 148 Cochrane v. Willis, 248 Cockshott v. London General Cab Co. , 132 Cohen, Re, 412 Colebonrne v. Colebonrne, 29, 538, 542, 550 Collett v. Collett, 258 Collette v. Goode, 75, 103 Colman v. Turner, 412, 414 Combe v. Corporation of London, 504 Commercial Union Assurance Co. v. Uzielli, 450 Commissioners of Sewers v. Gellatly, 6 Cook v. Enchmarch, 25 v. Bosslyn (Earl), 252 Cooke v. Fryer, 369 Cooper, Ex parte, 589 v. Cooper, 174, 214 v. Jones, 317 Cork (Earl) v. Russell, 238, 244 Corporation of Hastings r. Ivall, 509 Sons of the Clergy *. Trustees of Stock Exchange, 294 Corsellis v. Patman, 240 Corticine Floor Cloth Co. v. Tull, 597 Cotton, Re, 454 Coulson, Re, 302 Coulthurst v. Smith, 238 Court v. Perrin, 529 Conrtois's "Will, -Re, 304 Cowley (Earl) v. Wellesley, 267 Cox v. Barker, 9 - v. Watson, 241 - v. Wright, 369, 469 Cracknall !'. Janson, 128 Craig v. Phillips, 207 Crane's Estate, Re, 332, 334 Crane v. Loftus, 15 Crawford r. Hornsea Co., 213 Credit Foncier, Re, 343 Creen v. Wright, 148, 585 Cresswell v. Parker, 37 Crookes v. Whitworth, 236 Cross's Charity, Re, 261 Crouch v. Waller, 389 Crowe, Re, 311 v. Barnicott, 78 Cruikshank v. Floating Swimming Baths Co., 135, 530 Crystal Palace Bailway Co., Re, 335 Cummins v. Heron, 205 Cundee, Re, 277 Currie, Re, 308 Cuthbert v. Wharinly, 420 Cuthbertson v. Wood, 327 Dalby v. Pullen, 437 Dale v. Hamilton, 437 Dalston v. Nanson, 506, 507 Dalton, Re, 459 Darcy v. Whittaker, 15 Dare Valley Railway Co., Re, 534, 535 Darkin ». Marye, 443 Darley v. Darley, 454 Daubeny v. Coghlan, 466 v. Shuttleworth, 152, 469, 470, 473 Daun v. Simmins, 148 Davenport's Charity, Re, 289 i'. Stafford, 156 David v. Frowd, 421 Davies v. Garland, 29 Davis, Re, 306 v. Ashwin, 240 v. Flagstaff Silver Mining Co., 495, 621 v. Marlborough, Duke of, 550 v. Prout, 381 v. Spence, 65 Davy v. Garrett, 93, 134, 204 Dawkins r, Penrhyn, Lord, 70 v. Prince Edward of Saxe Wei- mar, 485 Day v. Kadcliffe, 10 — v. Whittaker, 607 De Hart v. Stevenson, 6 De la Salle v. Moorat, 412, 414 Delves v. Delves, 447 Dempsey v. Dempsey, 444 Denning v. Henderson, 444 Dennis, Re, 327 v. Seymour, 66 Desborongh v. Harris, 300 De Visme v. De Visme, 444 Deykin v. Coleman, 469 Dickson v. Harrison, 206, 409 Dimruock v, Hallett, 444 XXIV TABLE OF CASES. Disney v. Longbourne, 500 Dixon v. Pyner, 437 Docker, Ex parte, 615 Dodds v. Shepherd, 45, 176 Dodson v. Bishop, 440 D'Oechsner v. Scott, 389 DomviHe v. Berrington, 437, 440 Down v. fillis, 425 Doyle v. Kaufman, 29 Drake v. Trefusis, 267 Draper's Settlement, Re, 320 Drinkwater v. Katcliffe, 232, 233 ' Drought v. Bedford, 465 Duckett v. Gover, 10 Dunabui-g, &c. Bailway Co., Re, 343 Dunkirk College Co. v. Lever, 527 Dunn v. Dunn, 369 v. Pearson, 147 Dunraven Estates, Re, 332 Dursley v. Fitzhardinge Berkeley, 254 Dymondu. Croft, 38, 55, 56, 59 Eade v. Jacobs, 503 Earp v. Faulkner, 146 East and West India Docks Bailway Co., Re, 336 East Lancashire Bailway Co. v. Hatters- ley, 472 Eden v. Naish, 486 Edmunds v. Attorney-General, 485 Edwards v. Cunliffe, 241 v. Edwards, 551 < v. Lowther, 10 v. Martin, 238 Eldridge v. Burgess, 13 Electric Telegraph Co. oflreland, Re, 407 Telegraph Co. v. Nott, 472 Ellis, Re, 306 — v. Ambler, 500 — v. Fleming, 621 Elmer v. Creasy, 504 Else v. Else, 438, 444 Elsom, Re, 202 Elton v. Elton, 231 Elwes v. Elwes, 522 ' Elworthy v. Billing, 440 Emma Mine v. Grant, 136 , The, 502 England, Ex parte, 455 v. Downs, 381 English v. Tottie, 505, 513 v. Vestry of Camberwell, 539, 543 Estate Co., Re, 343 Estconrt v. Ewington, 383 Evans, Re, 303, 304 v. Bagshaw, 225 v. Buck, 24 v. Debenham, 499 Eyre v. Cox, 6, 29, 30, 88 — -0. Hanson, 241 Farmer v. Dean, 440 Faulkner v. Daniel, 560 Faund v. 'Wallace, 146 Fawcet v. FothergiU, 244 Fawkner-i). Watts, 454 Fellows, Re, 321, 324 Felstead v. Gray, 139 Felthouse v. Bailey, 110 Field v. Carnarvon, &c. Bailway Co. ,338 Finch v. Shaw, 241 Fingal v. Blake, 550 Fisher, the T., 78 v. Hughes, 506 «. Owen, 503 • v. Val de Travers Co., 200 Flack, Re, 304 Flamank, Ex parte, 330 Fleming v. East, 164 Flight v. Bolland, 366 Flitchcroft, Re, 317 Flower, Ex parte, 338 Ford v. Olden, 243 Fortescue v. Fortescue, 510 Foster, Re, 389 v. Foster, 234 v. Gamgee, 89 v. Harvey, 239 v. Parker, 373 v. Usherwood, 493 Foulds v. Midgley, 256 Fowler v. Enoop Bank Ass. , 48 v. Boberts, 181 Fox v. Suwerkrop, 367 Freason v. Lowe, 97 Freeman v. Cox, 564 Friend v. London, Chatham, and Dover Bailway Co. , 505 Frost v. Ward, 367 Fryer v. Boyle, 6 v. Wiseman, 118 Fuller v. Lance, 375 Furness v. Booth, 48, 77 Gaitskell, Re, 614 Gardner's Trusts, Re, 308 Garland v. Garland, 551 Garling v. Eoyds, 134 Garnett v. Bradley, 585 Gawthorpe v. Gawthorpe, 549 Gedye v. Matson, 237 Gee v. Gee, 366 Geldard r. Hornby, 241 -o. Bandall, 440 Gilbert v. Endean, 121, 487 -o. Smith, 90, 233 Gilliatt v. Giliiatt, 438 Gillott v. Kerr, 90 Qlazbrook v. Gillatt, 474 Goddard v. Thompson, 174, 214, 487 Goggs v. Huntingtower, 33 Golden v. Newton, 416 Golding v. Wharton Saltworks Co., 204 Good v. Blewitt, 421 Goodrich v. Marsh, 226 TABLE OF CASES. XXV Goodwin's Settled Estates, Re, 258 Gordon, Re, 303 . Gore Langton, Re, 331, 332 Gornall, Re, 452 Gongh p. Bage, 322 Graham, Re, 451 v. Campbell, 203 Grant i>. Banque Franco-Egyptienne, 207, 214, 590 !'. Grant, 425 v. Holland, 612 Graves v. Taylor, 527 Great Australian Gold Mining Co. r. Martin, 37 Greaves v. Fleming, 67 Green, Re, 258 o. Coleby, 149 *. Measures, 416 v. Wynn, 244 Greig r. Somerville, 421 Griffiths r. Jones, 447 Grills v. Dillon, 207, 590 Grimstone, Ex parte, 244 Grimwood v. Battels, 234 Groves v. Groves, 514 Grundy v. Buckeridge, 321 Guest v. Smythe, 440, 447 Gunn v. Bolckow, Vaughan and Co., 564 Gunnell r. "VYhitear, 302 Gurney v. Jackson, 241 Guy v. Guy, 367, 369 Gynn v. Gilbard, 451 H., Re, 550 H. v. H., 550 Hidley r. McDougall, 510 Hair, Re, 614 Hall's Charity, Re, 284 Policy, Re, 200 Hall v. Eve, 82 v. Hall, 445 v. Pritchett, 182 Halliday, Re, 277 Hallums v. Hills, 147 Halsam, Ex parte, 383 Haly v. Barry, 185] Hancock v. Guerin, 500, 508 Hancocks r. Lablache, 382 Hancox v. Spittle, 313 Handford v. Handford, 406 Handley v. Davis, 302 Haney, Re, 302 Hankin v. Turner, 208 Hanmeri>. Flight, 66 Hansard v. Hardy, 247 Hansford, Se, 302 Hanson v. Stubbs, 491 Harbord r. Monk, 500 Hare v. Hare, 521 Hargrave r. Hargrave, 366 Hargreave, Re, 266 Hargreaves v. Scott, 593 Harker, Re, 209 Harris v. Aaron, 211 v. Gamble, 70, 76, 77, 103 v. Hamlyn, 371, 378 v. Harris, 367 v. Warre, 71 Harrison v. Bottenheim, 65 v. Wearing, 593 Harry i\ Davy, 10 Hartley v, Owen, 506 Hartnall, Re, 314, 315 Harvey v. Hall, 30 Hastie v. Hastie, 212 Hatton v. Haywood, 180 Hawkes, Re, 304 Hayes, Re, 330 Haymes v. Cooper, '548 Haywaid v. Hayward, 395, 407 Heath v. Crealock, 238 Heinrich v. Henshaw, 616 Hennessey u. Bohmann, 538, 543, 549 Heritage, Re, 615 Heugh v. Chamberlain, 93 Hewitt v. Nanson, 437 Heywood v. Wait, 469 Higginbottom t". Aynsley, 97 Higgs v. Schrader, 616 Hightonr. Treherne, 206, 207 Hillary, Re, 298, 451 Hillman r. Mayhew, 78, 248, 490 HiUs v. Croll, 248 Hilton's Trusts, Re, 265 Hobson'g Trusts, Re, 330 Hobson v. Sherwood, 227, 555 Hodge's Settlement, Re, 451 Hodges, Re, 475 v. Hodges, 84 Hodson v. Mocni, 78 Holbrook, Re, 315 Holford v. Tate, 241 Holland v. Gwynne, 614 Holloway v. York, 73, 79, 490 Holme v. Guy, 282 Holmes v. Hervey, 490, 499 Honduras Railway Co. v. Lefevre, 8 Hooper v. Giles, 98 v. Strutton, 306 Horn's Settled Estates, Re, 258 Horrocks v.' Rigby, 80 Horwell v. London General Omnibus Co., 48, 49 Hoskin's Trusts, Re, 203 Hoth'am (Lord), Re, 327 Hough v. Rankin, 408 Houseman v. Houseman, 487 Howard, Re 38, 43, 317 v. Chaffers, 164 i>. Harris, 244 Howell v. West, 93 Hughes v. Hughes, 454 v. Rees, 177 Humphreys v, Edwards, 490 XXVI TABLE Of CASES, Hunt v. City of London Real Property Co., 133, 146, 151 Hunter v. Hunter, 205, 211 Hurst v. Hurst, 239 Hutchins and Eomer, Ex parte, 207 Hutchinson, Re, 415 v. Ward, 47, 397 Hutton v. Mansell, 444 I. C, Ex parte, 457 Insley v. Jones, 493 International, &c, Society v. City of Moscow Gas Co., 206, 207 Irby, Me, 302 Ireland v. Eade, 556 Isaacs, Ex parte, 208 Ives, Be, 226 Ivory, Be, 208 Jackson v. Jackson, 454 v. Mawby, 192 v. NorthEasternKailwayCo.,13 Jacobs v. Brett, 621 James, Be, 274, 452 v. Crow, 132, 478 v. James, 240 Jeffreys'!). Connor, 334 Jenkins v. Davies, 76, 90, 103 Jenneri). Morris, 406 Johnasson v. Bonhote, 71, 83 Johnson v. Diamond, 181 . v. Holdsworth, 238 ■». Smith, 509 Jones, Be, 29, 30, 88 v. ChenneU, 212 v. Davis, 151 v. Jones, 13 v. Meredith, 244 v. Powell, 452, 453, 466 v. Robinson, 231 v. Smith, 245 v. Thomas, 252 i>. Thompson, 181 Jope v. Morshead, 225 Joselyne, Ex parte, 182 Joyce, Be, 306 Judd v. Green, 208, 591 Julia Fisher, The, 588 Justice v. Mersey Steel, &c, Co., 214 Kanitz v. Scarborough, 209 Kaye, Be, 452 Keightley v. Birch, 178 Kelland v. Fulford, 330 Kemp v. Wade, 466 Kenyon v. Kenyon, 367 Kettlewell v. Barstow, 504, 510 Kilmorey (Lord), Be, 278 Kingsford v. Poile, 241 King v. Bryant, 416 v. Corke, 92 v. King, 302 ■ v. Sandeman, 148 King v. Savery, 159 v. Smith, 244 Kipling v. Todd, 170 Kirkwood v. Thompson, 245 Kitching v. Kitching. 25 Knatchbull v. Fowle, 118 Knight o. Knight, 311, 367 Knott, Be, 423 v. Cottee, 437 Knowles, Be, 327 Krehl v. Burrell, 206 Lact v. Burchnall, 367 Lafitte, Be, 593, 594 Lafone v. Falkland Islands Co., 107, 516 Laing's Trusts, Be, 258 Lambert v. Newark, 475 Lambton, Ex parte, 330 Land Credit Co. of Ireland, Be, 420 Lander v. Ingersoll, 368 Landore Siemens Steel Co, Be, 491 Lang v. Griffith, 548 Langton v. Langton, 436 Large v. Large, 29 Larken, Be, 327 Lascelles v. Butt, 135 Laslett v. Cliffe, 240 Latch v. Latch, 8 Law v. Garrett, 487 Lawley v. Halpen, 382 Lawrence, Be, 207 v. Campbell, 505 Lawson, Ex parte, 336 Lazenby v. White, 209 Leach v. Leach, 454 Lechmere v. Clamp, 241 Lee v. Angus, 104 Lees v. Coulton, 319 — v. Patterson, 78, 619 Leese v. Knight, 372 Leigh, Be, 135, 203, 508, 513, 526 Leigh's Estate, Be, 332 Leigh v. Brooks, 135, 525 Lespinasse v. Bell, 551 Levett, Be, 304 Lewis's Estate, Be, 272 Lewis v. Hillman, 304 v. Nobbs, 366 Loyman v. Latimer, 83 Lindsey v. Tyrell, 389 Lingen v. Simpson, 505 Lister v. Bell, 403 Lister's Hospital, Be, 281, 331 Litton v. Litton, 90 Livesey v. Harding, 436 Lloyd's Banking Co. v. Ogle, 65 Lloyd v. Davies, 366 v. Dimmack, 14 v. Lewis, 536 v. Lloyd, 238 v. Wait, 244 v. Whittey, 239 Lockhart v. Hariry, 242 TABLE OP CASES. XXV11 London and County Assurance Co.,i?e, 407 Bank ?'. Dover, 240 Provincial Mutual Insurance Co. v. Davies, 500 Brighton, and South Coast Rail- way Co., Re, 284, 329 Chatham, and Dover Railway Co. v. Imperial Merc. Credit Asso- ciation, 209 Syndicate, Limited, v. Lord, 564 v. Roffey, 147 Long, Re, 334, 336 Longbourne v. Fisher, 415 Longman r. East, 135, 525, 526, 52S Lord,i?e, 431 Lorimer, Re, 303 Lowe v. Blakemore, 182 v. Lowe, 206 Lows, Ex parte, 132, 205, 478 , Re, 478 Lucas v. Dalziel, 457 Lucretia, The, 211 Ludlow, Corporation of, v. Greenhouse, 283 Lukef. South Kensington Hotel Co., 238 Lushington v. Sewell, 370 Lydall v. Martinson, 142 Lyons v. Blenkin, 367 Mao F adzes v. Corporation of Liverpool, 501, 509 Mackenzie v. Mackenzie, 315 Mackley v. Chillingworth, 597 Maclean's Trusts, Re, 302 Magdalen Land Charity, Re, 283 Major v. Major, 156 Manby v. Bewicke, 503 v, Manby, 29 Manchester, &c. Railway Co. v. Brooks, 9, 78 Manisty v. Kenealy, 25 Mansel, Re, 207, 209 Mansell v. Feeney, 504 Mansfield r. Childerhouse, 504 Manson v. Thacker, 444 Margate Pier Co. v. Perry, 75 Marner, Re, 303 Marquis of Bute's Case, 451 Marriage, Re, 335 Marriott v. Kirkham, 239 v. Marriott, 30, 93 Marsh, Re, 202 v. Isaacs, 144, 146 Marshall, Re, 277 Mason v. Mason, 308 Mayor, &c. of London v. Cox, 621 Matthew v. Brise, 455 McAndrew v. Barker, 205 McCarthy v. Goold, 188 McCorquodale v. Bell, 505 McDonald v. Foster, 47, 204, 397 McWade v. Broadhurst, 8 Mellin v. Monico, 525,"526, 528 Melling v. Bird, 330 v. Melling, 368 Mellor v. Sidebottom, 90 Meluish r. Milton, 538, 543, 549 Mem., 490, 586 Mercer r. Lawrence, 173 Mercers' Co., Ex parte, 586 Mercier v. Cotton, 500 Meredith v. Treffey, 433 Merry v. Nickalls, 174 Merryweather, Re, 302 Metcalfe, Re, 302 Metropolitan Board of Works v. New River Co., 204, 521 District Railway Co, Re, 336 Railway Co. v. Defries, 84 Meyrick, Re, 282 v. Laws, 474 Michell's Trusts, Re, 47 Midland Railway Co., Re, 330 Mildmay v. Quicke, 234 Mildred v. Austin, 244 Mills v. Griffiths, 10 Milton (Lord) v. Stuart, 132, 470 Minet v. Morgan, 504, 505 Minor, Ex parte, 442 Mirehouse v. Barnett, 134 Mitchell v. Lee, 181 Mockett, Re, 327, 328 Moffat v. Cornelius, 487 Mole v. Mansfield, 229 Molesworth v. Snead, 162 Moor v. Anglo Italian Bank, 423 Moore v. Craven, 504 Moorehead v. Moorehead, 231 Mordue v. Palmer, 532 Morgan, Re, 265, 304 r. Elford, 174, 214 Morley v. Finney, 425 Morris v. Freeman, 384 Morrison v. Arnold, 255 Mortimer v. West, 367 Mortimore v. Cragg, 175 Morton v. Miller, 55, 56, 59, 61, 62 u. Mynn, 181 *. Quick, 499 Mosely, Re, 300 Mostyn v. West Mostyn Coal, &c. Co. , 79, 505 Mountain v. Young, 302 Moxham, the M., 113 M. T., Re, 610 Mulcaster, Re, 506, 507 Munro v. Wivenhoe, &c, Railway Co., 472 Murr v. Cooke, 202 Murray v. Simpson, 181 Mutlow's Trusts, Re, 338 Myer3 v. Defries, 586 N. v. T., 610 National Funds Association Co,, Se, 209 xxvm TABLE OF CASES. Naylor, Re, 302 Naylor v. Fairer, 78, 80 v. Smith, 415 Nelsons). Barter, 252 Newall v. Telegraph Construction Co., 511 New British Marine Insurance Co. a. Peed, 508, 510 New Gas Co., Re, 211 Newington v. Levy, 88 Newland v. Steer, 104 Newman's Settled Estates, Re, 267 Newman tf. Selfe, 239, 370 Newton v, Curzon, 454 v. Sherry, 420 New Westminster Brewery Co. v. Han- nah, 11, 118 Nicholson v. Squire, 456 Noakes v. Noakes, 538 Noelv. Noel, 511 Norris v. Beazley, 10 v. Irish Land Co., 542 Northampton Coal, &c, Co. v. Midland Waggon Co., 202, 589, 590 Northumberland (Duke of) v. Todd, 122 North Wheal Exmouth Mining Co., Re, 400 Norton v. London and North-Western Ry. Co., 205 Nottley v. Palmer, 455 Nowell, Re, 548 - — v. Whittaker, 388, 390 Noyes, Re, 277 v. Crawley, 84 Oakwbll Collieries, Re, 210 Oastler v. Henderson, 146 Odessa Tramways Co. v. Mendel, 248 O'Donnell, Re, 311 Ogden v. Lowry, 41 2 Olney Charity, Re, 283 Omichund v. Barker, 117 O'Neill *. Clason, 386 Original Hartlepool Collieries Co. c. Gibb, 80 Ormaston v. Association of Land Finan- ciers, 128 Ormerod, Re, 308 Ormsby, Re, 554 Osbaldiston v. Crowther, 413 Osborne v. Homburg, 493 Oulton v. Radcliffe, 41 Owen v. Henshaw, 616 v. Wynn, 508 Padwiok v. Scott, 49, 80 Palmer, Re, 302 v. Hendrie, 242 v . Walesby, 376 Palmes v. Danby, 244 Panton v. Labertouche, 591 Papa de Rossie, The, 593 Paradice v. Shepherd, 389 Parke, Re, 320 Parker v. Dunn, 556 v. Gerrard, 225 v. Trigg, 233 Parkes's Charity, Re, 284 _ Parkinson v. Hanbury, 245, 289 Parpaite v. Dickenson, 24 Parsons v. Harris, 91 v. Tinling, 585 Partington v. Reynolds, 411, 420, 474 Pasmore, Be, 474 Paterson v. Paterson, 317 Pattison v. Wooler, 118 Pawley v. Colyer, 244 Paxton v. Bell, 590 Payne v. Little, 366, 382 Peacock, Re, 265 v. Harper, 119 Pearce v. Morris, 245 Peareth v. Marriott, 459 Pearl, Ex parte, 474 ■ v. Deacon, 244 Pearse v. Cole, 469 Pease, Re, 265 v. Fletcher, 550 Pelling v. Goddard, 304 Pemberton v. Barnes, 232, 233 Pender, Re, 614 Pendleton v. Mackray, 451 Pennington v. Dalbiae, 234 Peppett's Estate, Re, 8 Perrin, Re, 529 Perry v. Barker, 242 Peyton v. Bond, 368 Phillipott's Charity, Re, 283 Phillips v. Gutteridge, 239 Phillipson v. Gibbon, 249 Phosphate Sewage Co. v. Hartmont, 208, 590 Pioard v. Hine, 494 Pidduck v. Boultbee, 469 Piggott v. Anglo-American Telegraph Co., 518 Pigott v. Young, 414 Pike v. Keen, 385 Pilcher v. Hinds, 25 Pile v. Pile, 330 Pilley v. Baylis, 134 Playford v. Playford, 244 Pollini v. Gray, 209 Pollock v. Campbell, 34, 36 Pontifex v. Severn, 525, 526, 528 Pooley v. Bosanquet, 33 Poplar, &c. , Free School, Re, 281 Popple & Barratt, Re, 250, 258 Porter v. Lopes, 233 Potts v. Leighton, 554 Poulett (Earl) v. Wood, 327 Powell v. Elliott, 249 v. Jewesbury, 84 Pratt v. Browne, 61 Preston v. Lamont, 38, 41. 43, 93 Prince v, Hine, 455 TABLE OF CASES. XXIX Printing and Numerical Co., Re, 423 Prowse v. Spurgin, 465 Purnell v. Great Western Railway Co., 205 Pym v. Bowreman, 244 Queen v. Overseers of Walsall, 202 Raffety v. King, 244 Eailway Steel, &c, Co., Re, 423 Ramsbottom v. Willis, 244 Rand v. Cart-wright, 244 Kandell v. Thompson, 4S7 Reaston's Estate, Re, 332 Redmayne v. Vaughan, 74 Redondot). Chaytor, 588 Regent United Stores, Re, 423 Republic of Bolivia v. National Bolivian Navigation Co. , 521 — r— of Costa Rica v. Erlanger, 590 v. Strousberg, 508 of Liberia v. Roye, 501, 509 of Peru v. Weguelin, 214 Reynolds, Re, 330 Rhodes v. Buckland, 244 v. Jenkins, 207, 209 Richards Re, 302, 423 v. Kitchen, 190 Riley v. Croydon, 244 Ritchie v. Humberston, 414 Roach v. Garvan, 453 Robarts v. Buee, 601 Roberts v. Ball, 300 v. Evans, 381 Robertson v. Howard, 74, 83 Robinson v. Aston, 371 v. Robinson, 526 Roe v. Davies, 92 Roffey v. Miller, 15 Rolfe v, Maclaren, 81, 86, 90 Roughton v. Gibson, 232 . Rourke v. White Moss Col. Co., 591 Rowcliffe v. Leigh, 135, 203, 502, 506, 508, 509, 513, 525 Rowe v. Gray, 233 Rowley v. Adams, 446 v. Burgess, 410 Royle, Re, 6 Rudd v. Rowe, 485 Rudge v. Weedon, 383 Rump v. Greenhill, 411, 414 Rumsey v. Read, 90 Runnacles v. Mesquita, 65 Russell v. Sharp, 368, 372 Ruston v. Tobin, 133 Rutley v. Gill, 444 Rutter v. Marriott, 444 Rylar, Re, 272 Safjebv, Ex parte, 207 Sale v. Sale, 368 Salisbury (Marquis), Re, 359 Sandford v. S-adford, 366 Sargant v. Reed, 539, 550 Saull v. Browne, 504, 511 Saunders v. Jones, 503 Saville v. Bruce, 261 Saxtonv. Bartley, 232 Scott v. Royal Wax Candle Co., 37 Scotto v. Heritage, 494 Scully v. Lord Dundonald, 486 Seaton v. Twyford, 238 Seidler, Ex parte, 474 Sexton Burn's Settled Estates, Re, 268 Sharp, Steward and Co., Re, 343 Sharp v. Lush, 419 Sharpley, Re, 321 Shaw, Re, 327 v. Bunny, 245 v. Hope, 147 v. Rhodes, 558 Shephard v. Beane, 48 Shepheard's Estate Re, 258, 259 Shepherd v. Churchill, 225 Sheppard v. Harris, 371, 378 Sherwin v. Selkirk, 427 Ship Constantini, 207 Shrewsbury v. Scott, 260 Sichell v. Raphael, 619 Siddons v. Lawrence, 586 Sidney v. Ranger, 437 Simpson's Estate, Re, 578 Simpson v. Denny, 226 v. Ritchie, 231 Singer Manufacturing Co. v. Long, 133 Skinner, Ex parte, 283, 284 Skynner v. Pelichet, 315 Smallwood r. Rutter, 367 Smith, Re, 265,397 v. Buller, 593, 594 v. Dobbin, 41 v. Grindley, 210 v. Pilgrim, 119 v. Robinson, 239 Smyth, Re, 321 Somerset, &c, Railway, Re, 355 South, Re, 179 South Wales Railway Co. , Ex parte, 338 Southwark and Vauxhall Water Co. v. Quick, 505 Spence, Re, 451 Spike v. Harding, 225, 236 Spittle v. Hughes, 406 Spratt v. Ward, 133 Sprunt v. Pugh, 187 Spurstowe's Charity, Re, 330 Spurway's Settled Estates, Me, 271 St. Giles and St. George, Bloomsbury, Re, 281 Stace v. Gage, 226 Stahls3hmidt v. Walford, 482 Stand ird Discount Co. v. Barton, 490 v. Otard de la Grange, 205 Stanger-Leathes v. Stanger-Leathes, 598 Staniland v. Staniland, 367 XXX TABLE OF CASES. Stanley f. Stanley, 184 i). Wrigley, 225 Staples Ex parte, 332 Staves v. Staves, 487 Stebbing », Atlee, .406 > Stephens, Ex parte, 361 Ee, 361 . v. Wanklin, 110 Steuart v. Gladstone, 142 Stevens, Ex parte, 338 ■«. Phelips, 182 v. Savage, 456 c. Stevens, 367 Stevenson v. Marriott, 425 Stewart, Re, 20 Stobart v. Todd, 109 Stockton Iron Furnace Co., Re, 205 Stokes v. Grant, 93 Story v. Johnson, 229 Street v. Gover, 81 Stubbs's Estate, Re, 491 v. Boyle, 527 Sugg v. Silber, 133, 135, 145, 524 Swallow v. Binns, 20 Swansea Shipping Co. -v. Duncan, 48, 49 Swindell v. Birmingham Syndicate, 133, 134, 206 Tabiey (Lord de), Re, 277 Talbot *. Earl of Shrewsbury, 453 v. Talbot, 368 Tapp v. Jones, 181, 182 Tappen v. Norman, 368 Tasker v. Small, 245 Tawell v. Slate Co., 25, 237 Taylor, Be, 357 v. Batten, 509, 510 v. Duckett, 149 v. Jones, 623 v. Oldham, 367 v. Oliver, 510 v . Taylor, 270, 272 Teign Valley Kail way Co., Re, 355 Telegraph Co., Re, 343 Tennant v. Trenchard, 238, 440 Tewart v. Lawson, 560 Thomas v. Ellis, 389 v. Elsom, 202 v. Griffith, 421 v. Thomas, 371, 378 Thompson, Re, 259, 265 o. Thompson, 413 Thome, Re, 277 v. Steel, 65 Thornhill v. Millbank, 267 Thorp, Re, 277 v. Holdsworth, 71, 90, 103 Tibbett, Re, 277 Tibbs, Re, 455 Tildesley v. Harper, 11, 92 Timms, Re, 491 Tooke ^..Hartley, 242 Towsey i>. Groves, 368 Trail v. Jackson, 206 Treleven v. Bray, 49, 77 Trick, Re, 303 Trott, Re, 427 Trowell v. Shenton, 205 Tuck, Re, 327 Tunstall's Will, Re, 321 Tumbull v. Janson, 597 Tamer, Ex parte, 181 v, Hednesford Gas Co., 77, 78, 79 „. Turner, 465, 466 Turney v. Bailey, 504 Turquand v. Fearon, 69 v. Wilson, 90, 249, 519 Twycross v. Grant, 12, 506 Tylden, Re, 330 Unroll., Re, 302 Upton Warren, Re, 283 Usil v. Brearly, 208 Vale v. Oppert, 208, 209, 485, 591 Vallance v. Birmingham Corporation, 10 Vane v. Vane, 461 Vaughan v. Fitzgerald, 256 Venour, Re, 267 Verrall *. Catheart, 234 Vesey v. Ehvood, 442 Victoria, The, 207 Vincent, Re, 6 Viney, Exparte, 207, 623 Wabdell v. Blockey, 207 Wainwright v. Bland, 115 Wake v. Parker, 381 Wakelee v. Davis, 70 Waldy v. Gray, 238 Walker v. Balfour, 48 v. Hicks, 24 v. Jones, 242 v. Robinson, 397 Wallis v. Hepburn, 98 v. LichEeld, 529 Walsh v. Wason, 547 Walton, Re, 613 Ward v. Ward, 98, 368 Warner v. Murdock, 74, 133, 137, 143 & Powell, Me, 534 v. Twining, 49, 77 Watson v. Arundel, 551 v. Hawkins, 73, 79, 184, 502 v. Northumberland, Duke of, 229 v. Rodwell, 204 Watt, Re, 182 v. Barnett, 36, 63 v. Leach, 236 Watts, Re, 121, 301 Waugh, Re, 308 v. Land, 244 Wayn v. Lewis, 240 Webb's Policy, Re, 300 Webb v. Bornford, 502 v, Mansell, 210 TABLE OF GASES. XXXI Wellesley v. Duke of Beaufort, 451 v. Momington, 389 r. Wellesley, 389 Welply v. Buhl, 493 Welsh Steam Collieries Co. v. Gtaskell, 509 West of England, &c, District Bank v. Canton Insurance Co., 508, 510, 513 v. White, 134 Westhead v. Westhoad, 202 Westman'?;. Aktiebolaget Snickarefabrick, 37, 38, 43 Whetstone v. Dewis, 25 Whistler v. Hancock, 98, 484, 506 White v. Boby, 249 v. Simmons, 238 v. Witt, 205 Whitfield v. Roberts, 239, 210 Whitling, Re, 304 Whittaker v. Robinson, 491 Wickenden v. Rayson, 436 Wickens v. Townshend, 555 Wicks r. Scrivens, 244 Widgery v. Tepper, 184 Wigham v. Measor, 239 Wilding v. Andrews, 444 Wilkinson v. Clements, 248 i). Joberns, 232 v. Smart, 616 Wilks v. Groom, 306 WiUan, Re, 370 v. Plummer, 227 Wilcock v. Terrell, 188 Williams, Me, 259 Williams's Settled Estates, Be, 258 Williraas v. Games, 233 v. South-Eastern Railway Co., 48 v. Symonds, 548 Williamson, Ex parte, 334 Wilson, Ex parte, 203 Wilson Re, 260 v. Church, 9, 10, 11, 501 v. Dundas, 181 v. Greenwood, 440 ■ v. Smith, 208, 590 Wilts and Somerset Railway, Re, 451 Windsor, &c. , Railway Co. , Re, 336 Wing v. Tottenham, 338 Winterfield v. Bradnum, 78, 588 Wise, Re, 475 Witt v. Corcoran, 203 - v. Parker, 44, 177 Witts v. Campbell, 582 Wood, Re, 303, 306 — v. Anglo-Italian Bank, 502, 509 — v. Bamicott, 530 — v. Hamblet, 137 — v. Mclnnes, 37 ■ — ■ v. Weightman, 420 Woodard, Re, 614 Woodfine, Re, 136 Woodford v. Brooking, 240 Woods, Re, 304 Woof «. Barron, 240 Woolf v. Pemberton, 368 Wormsley, Re, 600 v. Sturt, 431 Worraker v. Pryor, 6 Worthington v. M'Craer, 455 Wortley, Re, 10, 11 . Wright v. Clifford, 148 v. Swindon, &c, Railway Co., 12,13 v. Tatham, 255, 256 Wurtnaby v. Wurtnaby, 377 Wymer v. Dodds, 31, 95 Wynne v, Styan, 244 Yettes v. Biles, 473 York Union Co. v. Astley, 240 Young, Re, 304 v. Brassey, 37 TABLE OF STATUTES. PAGE PACE 9 Will.. 3, c. 15 530, 532 6 & 7 Vict . u. 82 116. 1 •>..; 2 & 3 Anne, c. 4 . 159 8 Vict. o. 16, s. 135 35 5 & 6 Anne, v. 18 . 159 c. 18, s. 2 329 6 Anne, u. 18 363 s. 69 32! , 330 c. 35 . ■ 159 s. 70 331 7 Anne, c. 20 . 159 s. 71 332 7 Geo. 2, o. 20, s. 2 . 238 s. 72 333 s. 3 . . 238 s. 73 333 8 Geo. 2, c. 6 . 159 s. 74 334 13 Geo. 3, c. 63, s. 44 . . 115 s. 76 334 36 Geo. 3, c. 52, s.,32 . 297, 569 s. 77 334 42 Geo. 3, u. 116 . 363 s. 78 335 52 Geo. 3, t . 101 283, 284 s. 79 335 4 Geo. 4, <;. 76, a. 16 . . 456 s. 80 336 B. 17 . . 456' s. 81 337 6 Geo. 4, c. 50, s. 34 . . 140 s. 82 337 7 Geo. 4, c. 46, s. 13 . . 169 s. 83 337 11 Geo. 4 & 1 Will. 4, c. 65. 363, 453 s. 85 338 1 Will. 4, c. 7, s. 1 . . 57 s. 87 338 c. 22, s. 2 115, 116 =. 88 338 s. 10 . . 115 ». 134 35 1 & 2 Will. 4, c. 58 43, 44 167, 176 c. 20, s. 138 35 3 & 4 Will. 4, c. 42, s. 40 . . 531 8 & 9 Vict. u. 16, ». 36 169 , 170 s. 41 . . 531 k. 70 '296 t . 74 363 u. 118 3S4 4 & 5 Will. 4, u. 29 . 364 9 & 10 Vict. c. 20 362 5 & 6 Will. 4, c. 76 296, 362 c. 95, s. 90 495 7 Will. 4&lVict.'c. 73, a. 21 . 169 10 & 11 Vict. c. 96, s. 1 299 s. 26 . 35 s. 2 303 1 & 2 Yict. c. 45, s. 2 . 176 12 & 13 Vict. c. 74 305 c. 110, s. 11 . 179 13 & 14 Vict. c. 35, s. 1 . 522 s. 14 . 183 ss. 19 -■ 15 '. 365 2 & 3 Vict. c. 11, s. 7. 31, 32 s . 28 . t 641 3 & 4 Yict. u. 77 . 296 ». 34 . 523 c. 82, s. 1 . 183 u. 60 s. 2 . 306 307 4 & 5 Vict. c. 35 . 340 s. 4 . 307 5 Vict. c. 5, s. 4 543, 544 s. 5 . 307 5 & 6 Vict. c. 59 . 254 s. 6 . 308 *. 94 . 364 s. 7 . 309 6 & 7 Vict. c. 23 . 340 s. 8 . 309 c. 73, s. 14 . . 608 ». 9 . 309 s. 15 . . 609 s. 10 . 309 s. 21 . . 609 a. 11 . 309 s. 37 • . 613 x. 12 . 310 s. 38 . . . 615 s. 13 . 310 s. 39 . . 615 s. 14 . 310 *. 40 . . 615 s. 15 . 310 XXXIV TABLE OF STATUTES. 13 & 14 Vict, o. 60; s. 16 . B. 19 . _ PAGE 311 312 15 & 16 Vict. c. 80, ». 33 . b. 34 . Ties . 463 463, 465 B. 20 . 313 d. 43 . . 435 s. 22 . 314 c. 85, 296, 362 B. 23 . 314 c. 86, s. 11 . . 367 B. 24 315 s. 18 . . 514 B. 25 . 315 s. 20 . . 514 B. 26 . 316 b. 22 . . 123 b. 27 . 317 s. 28 . . 406 B. 28 . 317 B. 31 . . 109 B. 29 . 318 b. 32 . 109, 110 ». 30 . 319 b. 33 . . Ill s. 31 23( , 250 319 s. 34 . . 110 B. 32 . 319 s. 37 . . 120 s. 33 . 319 s. 40, 109 ,115,406, B. 34 . 320 434, 472, 477, s. 35 . 320 503 b. 36 . 320 s. 42,6,10,18,159, b. 37 . 321 372 s. 41 . 321 s. 44 . . 19 s. 42 . 321 b. 45 . 411, 413 s. 43 . 322 B . 46 . . 412 b. 44 . 322 s. 47 . 411, 413 s. 45 . 323 s. 48 . 239, 240 s. 48 . 324 s. 54 . . 432 s. 51 . 324 s. 55 . 436, 445 s. 52 . 325 s. 56 . . 438 s. 53 . 325 s. 57 . . 410 14 & 15 Vict. u. 99, s. 14 . 106 16 & 17 Vict. c. 78 122, 123 15 & 16 Vict. u. 51 340 c. 117 . 363 c. 54 89 u . 134 296, 362 c. 55, b. 1 318 u. 137,=. 14 . . 292 b. 2 . 311 B. 17 . . 281 ». 3 . 314 s. 18 . . 281 ». 4 . 315 s. 20 . . 286 b. 5 . 316 s. 28 . 285, 290 a. 6 . 320 , 323 s. 29 . . 286 B. 8 . 321 s. 30 . . 286 a. 9 . 319 B. 32 . 4, 28 5 B. 10 . 308 s. 35 . . 286 s. 11 . 308 s. 37 . . 290 s. 13 . 324 s. 41 . . 285 c. 76, s. 16 . 34 b. 42 . . 287 s. 109 . 140 s. 43 . . 286 s. Ill 140 s. 44 . . 290 s. 112 . 140 s. 48 . . 288 s. 122 56 s, 49 . . 289 B . 212 . 485 s. 50 . . 289 b. 219 . 486 s. 51 . . 289 b. 222 . 196 s. 62 . . 294 c. 80, b. 11 . 391 s. 64 . . 293 s. 13 . 391 s. 65 . . 362 s. 14 . 392, 4 '■'.! s. 66 . . 293 s. 17 . 394 17 & 18 Vict. c. 34 . 116 s. 26 . 392 c. 87 . 362 s. 27 . 449 c. 104 182, 364 s. 28 . 398 c. 125, s. 3 . 135 s. 29 . 519 a. 30, 109, 123, 394, s. 5 . ». 8 . . 535 . 535 487, 536 . 533 . 533 406, s. 31 . 407 395 s. 11 . s. 12 . s. 32 . 461, 463 s. 13 . TABLE OP STATUTES. XXXV PAGE PAGE 17 & 18 Vict. c. 125, s. 14 . 534 23 & 24 Vict. c. 145, s. 34 . 454 a. 15 . 534 25 & 26 Vict. c. 63 . 364 a. 16 . . 535 c. 89 34. 170, 589 a. 17 . . 532 c. 100 . 362 s. 72 . 543 c. 108 . 365 s. 73 . 543 c. 112 . 295 s. 78 . . 186 27 Vict. u. 13, o. 3 . 295 s. 93 . . 588 27 & 28 Vict. c. 89 . 364 18 & 19 Vict. c. 15 . 32 c. 112, a. 3 159, 196 c. 42 . 123 s. 4 . 180 c. 67 . 34 9. 5 . 180 c. 81 . 294 s. 6 . 180 «. 91 . 364 c. 114 . 364 c. 117 . 364 c. 127, s. 3 . 394 c. 124, a. 12 . 289 28 & 29 Vict. c. 78 . 365 s. 15 288, 289 c. 99 4, 242, 247, 305, s. 17 . 289 494, 497 s. 18 . 289 30 & 31 Vict. c. 40 s. 9 . 372 s. 22 . 289 u. 47 s. 2 32, 33 s. 26 . 289 o. 48 o. 5 . 438 c. 128 . 362 ». 7 . 447 18 & 19 Vict. c. 134, s. 6 . 106 u . 127, b. 5 . 351 ». 16 . 301 B. 6 . 351 19 & 20 Vict. u. 108, a. 26 . 147 B. 8 . 351 s. 38 . 496 B. 10 . 352 s. 40 . 496 S. 11 . 352 s. 41 497, 622 B. 12 . 352 20 & 21 Vict. c. 77, s. 64 . 106 a. 13 . 352 c. 81 . 362 s. 16 . 353 21 & 22 Vict. c. 27, s. 2 . 248 s. 17 . 354 o. 94 . 340 s. 18 . 354 22 Vict. u. 1 . 362 s. 19 . 354 <;. 20 116, 255 s. 36 . 337 22 & 23 Vict. c. 21 . 364 c. 131, s. 9 . 342 c. 35, ». 4 . 486 s. 10 . 342 s. 5 . 486 s. 11 . 343 s. 6 . 486 s. 15 . 347 s. 13 . 326 c. 142, s. 5 . 587 s. 30 . 327 s. 7 . 493 23 & 24 Vict. c. 34 . 365 a. 8 . 494 u. 38, s. 2 . 196, 197 B. 10 494, 589 ». 9 . 327 b. 24 . 305 c. 64 . 362 a. 25 . 305 c. 112 . 364 31 & 32 Vict. c. 40, s. 3 . 232 c. 115, s. 2 . 32 s. 5 . 233 c. 126, s. 1 . 485 s. 6 . 234, 440 s. 2 . 486 s. 9 15 ,18,159,225 s. 3 . 486 s. 10 . 231 a. 13 . 176 s. 12 4 a. 14 176, 204 u. 51, a. 1 198 s. 15 . 176 B. 2 198 s. 16 . 176 B. 3 198 s. 17 . 176 s. 4 198 m. 127 . 609, 612 c. 54 589 c. 134, s. 1 . 295 e. 142, s. 9 251 c. 136, a. 8 . 292 32 & 33 Vict. c. 62, s. 4 '. 191, 193 s. 9 . 292 s. 5 . 194, 195 3. 12 . 289 a. 6 . 619 s. 20 . 292 c. 68, b. 4 . 117 c. 145, s. 26 . 454 c. 71, »• 31 . 424 a. 32 . 454 a. 40 . 423 ». 33 . 454 s. 117 321 c 2 XXXVI TABLE OF STATUTES. 32 & 33 Vict. c. 91, c. 110, d. 13 . s. 8 PAGE . 396 . 291 36 & 37 Vict. c. 66, s. 77 s. 82 . PAGE 3, 122, 123 122, 123 s. 10 . B. 11 . s. 14 . . 292 . 292 . 294 s. 84 4 s. 87 . 122, 123, 394 . 608 33 & 34 Vict. c. 20 . 365 s. 90 . . 495 c. 30 . 182 s. 100 . 474, 478 c. 49 . 117 37 & 38 Vict. c. 57, s. 7 . . 245 o. 71 . 363 c. 68, s. 7 . . 609 c. 75, s. 20 . 339 B. 8 . . 609 u. 77, 8. 18 . 140 B. 10 . . 610 u. 93, s. 3 . 581 ». 11 . . 610 a. 9 . 356 c. 78, «. 4 . 307, 309 S. 10 . 356 B. 9 . 249, 359 34 & 35 Vict. c. 33 . 362 38 & 39 Vict. c. 36, ». 19 . . 339 35 & 36 Vict. c. 24, s. 13 . 296 c. 77, s. 4 . 199, 209 c. 44 566,568,575, s. 5 . 2 576, 580 s. 6 . 2 36 Vict. c. 12, s. 1 . . 357 s. 7 308, 375 s. 2 . 357 s. 10 . . 423 36 & 37 Vict. c. 35 . 365 s. 11 (2) . 489 c. 66, s. 4 s. 7 s. 8 s. 16 . 199 2,200 1 . 494 s. 12 . s. 20 . s. 22 . s. 34 . . 201 . 108 . 144 3, 257 s. 17 (•' ') . 375 c. 79, s. 2 . . 616 s. 18 . 201 e. 87, s. 48 . . 309 s. 19 . 202 c. 91 . 360 s. 24(3) . 77 39 & 40 Vict C 17, s. 3 '. 16, 226 s. 25 (5) . 243 ». 4 . . 235 s. 25 (6) . 300 B. 5 . . 235 s. 25 (8) 538, 542, 549 B. 6 . B. 7 . 236 . 236 s. 25 (11) . 170 C . 33 . 360 s. 29 . . 136 C . 59 , s. 4 . 217 s. 30 . . 132 s. 5 . 216 s. 31 1 g. 8 . 216 s. 33 . . 21 s. 9 . 217 s. 34 . 4, 180 s. 10 . 215 s. 39 2, 115, 391, 494 s. 11 s. 15 . 215 . 199 s. 42 I , 21, 143, 469, 474 s. 17 2, 151, 522, 524, 529 s. 45 . 4, 202 B. 19 . 200 s. 47 . . 202 b. 20 201, 204 s. 49 . 202, 203 s. 25 . 216 s. 50 . 202, 409 40 Vict c .9 1, 199 .. 52 . . 201 40 & 41 Vict . L . 18 , s. 2 . 258 b. 56 145, 522, 524, 529 s. 3 s. 4 . 258 . 261 p. 57 . 134, 519, 524, 525 B. 5 s. 6 . 261 . 262 s. 58 . 525, 526 s. 7 . 262 s. 59 . . 527 s. 8 . 262 s. 61 . . 114 s. 9 . 262 s. 62 . . 122 s. 10 . 262 s. 64 . . 52 s. 11 . 263 s. 65 . . 492 s. 12 . 263 s. 66 . 397, 519 s. 13 . 263 s. 67 493,494,587 s. 14 . 261 s. 76 122, 123, s. 15 . 262 180, 373 s. 16 . 265 TABLE OF STATUTES. XXXVU PAGE l'AGE 40 & 41 Vict. c. 18, ». 17 . . 269 40 & 41 Vict c 18 B. 41 . . 279 s. 18 . . 265 s. 46 . . 264 s. 19 . . 265 8. 47 . . 264 s. 20 . . 266 s. 48 . . 264 s. 21 . . 266 S. 49 . . 273 s. £2 . . 266 S. 50 . . 276 s. 23 . 269 B. 51 . . 276 s. 24 . . 270 S. 52 . . 277 s. 26 . . 271 B. 53 . 259 =. 27 . . 271 p 54 . . 270 s. 28 . . 272 s. 55 . . 259 s. 29 . . 272 s. 56 . . 259 s. 30 . . 272 s. 57 . 259, 264 s. 31 . . 277 s. 59 . . 263 s. 32 . . 260 u 25, s 23 . 609, 612 s. 33 . . 279 c. 26, s. 3 . . 342 s. 34 * . 267 s. 4 343 347, 348 8. 35 . . 268 s. 5 . . 348 s. 36 . . 268 u. 37 . 360 s. 37 . . 268 41 & 42 Vict. u. 35, iS. 2 ! 3 s. 38 . . 259 C. 54 . 194 a. 39 . . 259 42 & 43 Yict. C. 78 . 532 s. 40 . . 289 TABLE OF THE EULES OF THE SUPREME COURT, Order I. — (Form and commencement of Action.) E. 1 . . . .21 Order II. — (Writ of Summons.) E. 1 . . 21, 22, 550 E. 4 . . . .27 E. 8 . . 21, 55, 168 Order III. — (Indorsements of Claim.) E. 1 . . .22, 550 E. 2 . . .22, 550 E. 3 . . . 22, 550 E. 4 . . . . 22 E. 6 . . .23 E. 7 . . .22, 485 E. 8 . . .24, 61, 66 Order IV. — (Indorsement of Address.) E. 1 . . . . 23 E. 2 . . . .23 E. 3a . . . . 23 Order V. — (Issue of Writs of Summons.) E. 1 . . .27 E. 5 . . . . 21 E. 6 . . . .27 E. 7 . . . . 27 E. 8 . . . .27 E. 9 . . . . 27 Order VI. — (Concurrent Writs.) E. 1 . . . .28 E. 2 . . . . 28 Order VII. — (Disclosure by Solicitors and Plaintiffs.) E. 1 . . . 47, 483 E. 2 . . . . 385 Order VIII.— (Renewal of Writ.) E. 1 . . . 28, 29 E. 2 . . . . 29 Order IX.— (Service of Writ.) E. 1 . . . .35 E. 2 . . 14, 33, 35 E. 3 . . . 33, 383 E. 4 . . .33, 370 E. 5 . . 34, 376, 377 E. 6 . . ,34, 386 PAGE Order IX. — continued. E. 6a . . 34, 386 E. 7 . . . . 34 E. 8 . . . .35 E 13 . . . 38, 51 Order X. — (Substituted Service.) . 35 Order XI. — (Service out of the Juris- diction.) E. 1 . . R. la . . . 37 E. 3 . . . .37 E. 4 . . . . 37 E. 5. Order XII. — (Appearance.) E. 1 . E. 2. E. 3 . E. 4. E. 5 E. 6a R. 7 . R. 8. R. 9 . R. 12 R. 12a . R. 13 E. 14 . E 15 E. 18 . E. 19 R. 20 . R. 21 39 39 39 46 68 39, 40 39 40 40, 64 40, 386 40, 386 . 40 . 35 40, 41 . 42 . 42 . 41 42 Order XIII.— (Default of Appearance.) & 1 • . 371, 378 E - 2 . . . 51, 61 »• 8 . . 24, 51, 63 R.4. • . 24,51 £■ 5 • • . . 53 E. 5a . . . • 52 E7 ■ • ■ ' U R8 ' • ■ 59 £■ s • • . . 60 K. 9 . 53, 54, 58, 59, 62 TABLE OF THE RULES OF THE SUPREME COURT. XXXIX PAGE Order XIV. — (Leave to Defend where Writ specially indorsed. ) R. la . . 24, 65 R. 2 . . . . 65 R. 3 R. 4 R. 5. R. 6 65 66 66 Order XV. — (Application for Account where Writ indorsed under Order HI. r. 8.) R. 1 . . .24, 61, 66 R. 2 . . .61, 67 Order XVI.— (Parties.) R. 1 . R. 2 R. 3. R. 4 R. 5 . R. 6 R. 7. R. 8 R. 9 . R. 9a. R. 10 5, 379 .... 10 . 8 9 9 . . 8 . 10 366, 370, 380, 381, 383, 588 . 6, 9 . . 8 ~ . 68, 385, 386, 387 R. 10a . . . . 386 R. 11 . . 6, 372 R. 13 . 5, 9, 11, 13, 31 R. 14 . . .10 R. 15 . . . 11, 31 R. 16 . . 11, 73 R. 17 . . . 48, 253 R. 18 . . .48 R. 20 . . . . 49 R. 21 . . .50 Order XVII. --(Joinder of Causes of Action. ) R. 1 . . .24, 136 R. 2 . . . . 25 R. 3 . . . .25 R. 4 . . . . 25 R. 5 . . . .25 R. 6 . . . . 25 R. 7 . . . .25 R, 8 . . . . 25 R. 9 . . . .25 Order XVIII. — (Actions by and against Lunatics and persons of Unsound Mind.) . . . 375, 376, 377 Order XIX.— (Pleadings.) R:2. R. 3 R. 4. R. 5 R. 6. R. 7 R. 8. 72, 78 78, 80, 94 . 69 . 69, 574 . 14, 53, 54, 55, 56, 58, 59, 61, 62, 70, 78, 132, 139, 151, 402, 476 . . 70 73, 78 70, 85, Order XIX. — continued. R. 9 . R. 10 R. 11 R. 13 R. 14 R. 15 R. 16 R. 17 R. 18 R. 19 R. 20 R. 21 R. 22 R. 23 R. 24 R. 25 R. 26 R. 27 R. 28 R. 29 PAGE 73,75 78 76 76 81 76 76 86, 87, 103 70, 82 70 75 82 71,90 71 71 71 72 72 72 14, 53—56, 58, 59, 61, 62, 70, 78, 110—112, 132, 139, 151, 402, 476 Order XX. — (Pleading Matters arising Pending the Action.) R. 1 . . . .88 R. 2 . . .88 R. 3 . . . .88 Order XXI.— (Statement of Claim.) R. 1 . . .72, 73 R. 4 . , . . .74 Order XXII.— (Defence.) R. 1 . . . . 74 R. 2 . . . .75 R. 3 . . . . 75 R. 4. . . .76 R. 5 . . . . 79 R. 6 . . . .79 R. 7 . . . . 79 R. 8 . . .79, 80, 81 R. 9 . . . . 80 R. 10 . . .80 Order XXIII. — (Discontinuance.) R. 1 . 31, 96, 140, 481 R. 2 . . . 139, 482 R. 2a . . . . 482 Order XXIV. — (Reply and Subsequent Pleadings). R. 1 . . . .81 R. 2 . . . . 82 R. 3 . . . .82 Order XXVI.— (Issues) . . . 92 Order XXVII.— (Amendment of Pleadings). R. 1 . . .91, 128 R. 2 . . .91, 408 R. 3 . . . .91 R. 4 . . . . 96 R. 5 . . . .95 R. 6 . . .62, 128 R, 7. 94 xl TABLE OF THE RULES OP THE SUPREME COURT. Order XXVI I . — cent i mini. page K. 8 . 95 E. 9. . 95 E, 10 . . . 95 E. 11 . 29 Order XXVIII.— (Demurrer.) E. 1 . 79, 80, 83 It. 2. . 83 E. 3 . . . 84 R. 4. . 83 R. 5 . . . "83 R. 6. 84 R. 7 . . . 91 R. 8. . 85 R. 9 . . 85 E. 10 . 85 R. 11 . . . 85 E. 12 . 85 Order XXIX.— (Default of Pleading.) R. 1 " . . . 97 R. 2. . 98 R. 3 . 53, 60, 98 R. 4. 58, 99 R. 5 . 54, 60, 99 R. 6. 58, 99 R. 7 . . . 100 E. 8. 60, 100 R. 10 . . 62, 100 R. 11 55, 59, 62, 101 R. 12 . 81, 86, 87, 101 R. 13 79, 102, 149 E. 14 . . . 101 Order XXX. — (Payment into Court in satisfaction. ) R, 1 . . 46 E. 2 . . . 46 R. 3. . 67 E. 4 . G7, 576 Order XXXI. — (Discovery and In- spection. ) R. 1. . 500 E. 4 . . 501 E. 5. 501, 5U3, 504 E. 6 . . . 502 E. 7. . 502 E. 9 . . . 505 R. 10 . 506 E. 11 . 507, 514 E. 12 . 508 E. 13 . . . 509 E. 14 . 512, 514 R. 16 . 512, 514 R. 17 . 513 R. 18 . 513, 514 R. 19 . 502, 509 R. 20 . . . 506 R. 21 . 507 R. 22 . . . 507 R. 23 . 503 Order XXXII.— (Adniksi U1S.) R. 1. . 103 R. 2 . . 104 R. 4, . 104 !■) Order XXXIII.— (Inquiries and Accounts.) . . • ■ 519 Order XXXIV.— (Questions of Law.) E. 1 . . . .520 E. 2 . . 483, 520 E. 3 . . . .521 E. 4 . . . . 522 R. 5 . . . .522 Order XXXV. — (Proceedings in District Registries. ) R. la . . . 52, 138 R. 3 . . 52, 168, 607 E. 4 . . . . 45 E. 5 . . .397 R. 6 . . 397, 399 , E. 7 . . . .397 E. 8 . . . . 397 E. 10 . . . 398 E. 11 . . . 46, 68 E. 12 . 46, 68 R. 13 . . 492, 493 R. 14 . . . 492 Order XXXVI.— (Trial R. 1. R. 2 R. 3. R. 4 R. 4a R. 5 R. 6. R. 7 R. 8. R. 9 . R. 10 R. 10a R. 11 E. 12 . E. 13 E. 14 . E. 15 E. 16 . E, 17 R. 17a . E. 18 E. 19 . E. 20 E. 21 . E. 22« E. 23 . B. 24 E. 26 . R. 27 E. 29n . E. 294 R. 30 . R, 31 R. 32 . R. 33 E. 34 74, 137 133, 145 . 131 101, 131 101, 131 . . 135 . 136 . . 143 . 131 . . 131 131, 137 132, 137 . 132 . . 132 . 132 . 137 . 137 . 132 . 139 . 139 . 143 . 143 143, 147 142, 144 . 144 . 145 . 145 . 133 . 144 137, 528 138, 528 526 526 525 526 Order XXXVil^tf viJence gene ra lly.f K - 1 . 108 111 n » B. 2.108,120,47i,477;503 TABLE OF THE KULES OP THE SUPREME COURT. xli PAGE l'AGK Order XXXVII.— continued. Order XLIV. — (Attachment. ) R. 3 . 121, 471, 477 R. 1 . . . . 190 R. 4 108, 113, 114, 120 R. 2 . . . . 190 Order XXXVIII.- -(Evidence by Afli- Order XLV. — (Attachment of Debts.) davit. ) R. 1 . . . . 181 R. 1. . 118 R. •-'. . . .181 R. 4 . 119, 503 R. 3 . . . . 182 R. 5. . 120 R. 4. . . .182 R. 6 . 118, 131 R. 5 . . . . 183 Order XXXIX. - (Motion for New R. 6 . . . .183 Trial.) R. 7 . . . 183 R. 1. . 146 R. 8. . . .183 R. In . . 147 Order XLVL— (Charging of Stock or R. 2. . 147 Shares and Distringas. ) R. 3 . . 146 R. 1 . . . . 183 R. 4. . . 146 R. 2 . . . . 545 R. 5 . 147, 487 Order XLVII.— (Sequestration.) 167,187 Order XL. — (Motion for Judgment.) Order XLVIIL— (Writ of Possession.) R. 1. . 149 R. 1 . . . 171, 445 R. 3 . 149, 150 R. 2 . . . 167, 185 R. ia . 150, 151 Order XLIX.— (Writ of Delivery. ) 171, R. 5 . . 150 186 R. 7. . 149, 150 Order L. — (Change of Parties.) R. 8 . 136, 150 R. 1 . . . .11 R. 9. . 151 R. 2 . . . . 12 R. 10 . 148, 153 R. 3 . . . .12 R. 11 . 89 R. 4 . . . . 12 Order XLI.— (Entry of Judgment.) R. 5 . . . .14 R. 1 . . 153 R. 6 . . . . 14 R. 2 . . 158 R. 7 . . . .14 R. 3. 52, 158 Order LI. — (Transfers and Consolida- R. 4 . 52, 153 tion.) R. 5. . J53 R. 1 . . . . 489 Order XLII.— (Execution.) R. la . . . 491 R. 1 166, 174, 178, 190 R. 2 . . . . 490 R. 2. . 166, 190, 443 R. la . . . 491 R. 3 . 166, 185, 445 R. 4 . . . . 498 R. 4. . 166, 186, 190 Order LII. — (Interlocutory Orders as to R. 5 . 166, 190, 195, 445 Mandamus, Injunctions, or Interim R. 7. . 173 Preservation of Property, &e. ) R. 8 . 169, 173 R. 3 . . . .517 R. 9. . 168 R. 4 . . 538, 543, 549 R. 10 . . 168 Order LIII. — (Motions and Other Appli- R. 11 . 168 cations.) R. 12 . . 168 R. 1. . . . 468 R. 13 . 175 R. 2 . . . . 468 R. 14 . . 175 R. 3 . . . .468 R. 15 . 167, 171, 173 R. 4 . . . 152, 470 174, 175, 178 R. 5 . . . 471, 477 R. 16 . . 196 R. 6 . . . 471, 477 R. 17 . 196 R. 7 . . 61, 62, 470, 476 R. 18 . . 172 R, 8 . . . . 470 R. 19 . 172 Order LIV. — (Applications at Chambers. ) R. 20 167, 392, 409, 473, R. 1 . . . 397, 398 479 R. 2 . . . . 45 R. 21 . 168, 170 Order LV. (Costs.) R. 22 . . 174 R. 1 . . . 472, 585 R. 23 . 192 R. 2 . . . . 589 Order XLIIL— (Writs of Fieri Facias Order LVI. — (Notices, Papers, &c.) and Elegit.) R. 2 . . .21, 27, 69 R. 1 . . 174, 178 R. 3 . . . , 120 R. 2. , 177, 178, 189 Xlii TABLE OF THE RULES OP THE SUPREME COURT. Order LVII.— (Time.) E. 1 . . 17, 623 R. 2 . . . 476, 623 R. 3 . . . .623 R. 4 . 70, 84, 94, 623 R. 5 . 30, 70, 84, 88, 94, 502, 623 R. 6 . 30, 73, 75, 81, 82, 84, 88, 94, 96, 119, 147, 150, 502, 534, 624 Order LVIIa. — (Divisional and Other Courts. ) R. 1 . . . 4, 522 Order L VIII. —(Appeals.) R. 2 . . . . 204 E. 3 . . . .205 R. 4 . . . . 204 R. 5 . . . 212, 214 R. 5a . . . . 212 R. 6 . . . .211 R. 7 . . . . 211 Order LVIII.- -contimird. R. 8. ' . 209 R. 9 . 209, 355 R. 10 209 R. 11 . 213 11. 12 213 R. 13 . 214 R. 14 213 R. 15 . . 205, 207, 355 R. 16 173, 214 R. 17 . 173, 214 K. 18 214 R. 19 . 4 Order LIX.— (Effect of Non-Com- pliance.) . . .29, 41, 42 Order LX.— (Officers.) R. 1 . . . . 3 Order LXI.- — (Sittings and Vacations.) R. 5 . . . .405 R. 6 . . . . 405 R. 7 . . . .405 ADDENDA ET CORRIGENDA. Page G.— To note («) add*— "And see Re Blount, 27 W. E. 865." Page 23. — To note («) add : — " Leave to join other causes of action with a claim for recovery of land must be applied for before service of the writ. (Re Pitcher; Flicker v. Hinds, 11 Ch. 905.)" Page 46. — To note (y) add : — " Where money paid into Court was found suffi- cient, it was held that the costs were in the discretion of the Court, and that the proper mode of exercising that discretion was to give the plaintiff the costs up to payment, and the defendant the costs from that date. (Bueltton v. Jliggs, 4 Ex. D. 174.)" Page 56, line 7 from bottom : — Fur " or summons," read " on summons." Page 61. — To note (q) add:— "Where after an account has been directed under Order XV. issues are raised by the pleadings, the action should be brought to trial in the usual manner before further consideration. ( Gatti v. Webster, 27 W. R. 935.) " Page 65.— To note (7i) add : — "Leave to defend will be given to a corpora- tion on payment into Court. (Mnirhcad v. Direet U. S. Cable Co., 27 W. E. 708.) " Page 66. — To note («) add : — " An order giving the plaintiff leave to sign final judgment ought not to be made ' save where the case is free from doubt.' If the defendant's affidavit discloses facts sufficient to entitle him to defend, ' even though he does not quite show a good defence on the merits,' he should be given leave to defend on terms. If he discloses a good defence, he is entitled to leave to defend without any terms being imposed upon him. (Ray v. Barter, 48 L. J. 569.) " Page 71. — To note ()■) add : — " Mere general allegations of fraud in a plead- ing or petition are insufficient ; the facts relied on as constituting the fraud must be stated. (Re Rim Gold Washing Co., 11 Ch. D. 36.)" Page 77. — To note (g) add : — " Any claim of a defendant against a plaintiff, whether connected with the original subject-matter of the action or not, can be made the subject of a counter-claim ; and if it be embarrassing or inconvenient, the only remedy is by applying to strike it out. ( Qidn v. Ilession, 40 L. T. 70.) " Page 81. — To Blalis v. Applcyard, add, " And see Davidson v. Gray, 40 L. T. 192." Page 81. — To note (n) add : — " If claim and counter-claim are both dismissed" with costs, the plaintiff pays the general costs of the action, and the defendant pays the amount by which his counter-claim has increased the costs. (Saner v. Bilton, 11 Ch. D. 416.) " xliv ADDENDA ET CORRIGENDA. Page 86.— To note (e) ] add .__« As to the pl . p e r course where there are co- Page 87.— To note (?) I defendan tsseveringindefence,seeJmiraJ*«v. J 0i-<%», Page 101.— To note (?) ( ,. Ph -r) 7=0" Page 130,-To note (d) ) U Cn ' Dl 759 - Page 89— To note (g) add :—" Judgment directing sale and account by- plaintiff in possession in a partition action, and reserving further consideration, was given on admissions in the pleadings. {Burnett v. Burnett, 11 Oh. D. 213.) " Pago 103 line 11.- ) F „ Eeport » ,. ea a ^ Central." Page 172, line 5.— j r ' Page 134.— To note (c) add :— " Trial by a jury of an action for infringement of a trade-mark, in which only one issue of fact of comparatively slight impor- tance could have been conveniently so tried, was refused. (Spratt's Patent v. Ward $,- Co., 11 Ch. D. 240. And see Singer Manufacturing Co. v. Loog, id. 656)." Page 134. -To note (/) add :— " The Court of Appeal will not interfere with the discretion of a judge as to mode of trial except in a very strong case. {Huston v. Tdbin, 10 Ch. D. 558.) " Page 136, note {(>).— Euinm Mine v. Grant is now reported in 11 Ch. D. 918. Page 146.— To note (7t) add :— " Where a judge of the Chancery Division does not find a separate verdict on the facte, his judgment may be appealed from, but no new trial can be moved for on the ground of improper rejection of evidence. {Dollman v. Jones, 27 W. R. 877.) " Page 159, note {o).—Belete " Id." Page 173, note (««).— ) Wihon v. Church is now reported in 11 Ch. D. Page 214, note (a).-±- \ °^$- Page 173.— To note (n) add : — " After an appeal has been brought, notice of an original application to the Court of Appeal for a stay of execution must be given to the other side. {Emma Mining Co. v. Lewis, 48 L. J. 504.) " Page 207, note (/<).— For " Id." read " Ord. LVIII.' : Page 209, note (*). — Pottini v. Gray is now reported in 11 Ch. D. 741. Page 209. — To note (y) add : — " Notice of appeal was duly given, but as the appeal was irregularly set down, the appellant withdrew the notice and gave fresh notice, offering to pay any costs caused by service of the first notice. The appeal was then properly set down : Held, that the second notice was good, the first having been abandoned. {Morton v. L. § N. W. My. Co., 11 Ch. D. 118.) " ' Page 224. — To note (0), add :— '• The application should be made to the Court of first instance by which the decree appealed from was originally made. (British Dynamite Co. v. Krebs, 11 Ch. D. 448.) " Page 227, note (Ji).—For " 104," read " 114." Page 376.— To note (g) add :— " The defendant to an action for specific per- formance having been found a lunatic shortly before issue of writ, the Court directed service of writ on the person in whose care defendant was residine {Than v. Smith, 27 "W. E. 617.) " B Page 417, lines 7 and 8 from bottom.— Far " at Court or in Chambers," read " in Court or at Chambers." Page 419, margin. — For " district," read " distinct." ADDENDA ET CORRIGENDA. xlv Page 420, note (*).— For " 14 Eq.," read " 13 Eq." Page 423, note (del). — For "Ap.," read "Assoc.'' Page 427. — To note ttt) add : — '• Me Trott was followed in lie Summers, 27 W. R. 865." Page 427, note (ii).—For " Id. 10," read " Cons. Ord. XLII. r. 10." Page 430, line 8 from bottom. — Mr " so required," read " required." Page 490, note (n). — To Hollmvay v. Yurie, add, " And see Storey v, Waddle, 4 Q. B. D. 289." Page 501. — To note (j) add : — " A member of a, corporation interrogated under this rule is entitled to be paid the taxed costs of his affidavic in answer before filing it. {Berkeley v. Standard Discount Co., 27 W. R. 835.) " Page 506, line 7. — For "if a further answer," read "if for a further answer. " Page 508, note (ni). — Hancock v. Guerin is now reported in 4 Ex. D. 3. To that case add, " Phillips v. Phillips, 40 L. T. 815 ; 27 W. R. 939." Page 526, note Q).—Ibr " XXXI." read "XXXVI." Page 543, note (Z).— For " 510," read " 540." Page 550. — To note (I) add : — " A receiver was appointed on motion of plain- tiff in an action to recover land which was set down for trial, but was stayed, pending a cross-action which alleged that he was only a sub-mortgagee. (Ileal and Pert. Ad. Co. v. McCarthy, 27 W. R. 706.) " Page 588. — To note (6) add :— " A foreigner residing abroad was for conve- nience made plaintiff in an interpleader action. An order to compel him to give security for costs was refused. {Bclmonte v. Aynard, 4 C. P. D. 221 ; Affd. Id. 352.) " Page 588, note (6). — Medondo v. Cooper, is now reported in 4 Q. B. D. 453. Page 597, note (i). — For " Sttanger v. Leatlies," read " Stanger-Leatlies v. Sta/nger-Leathes." Page 610, line 16. — For " Division," read " Exchequer Division.'' Page 616. — To note (jii) add : — " The application may also be made by sum- mons. It is not necessary to entitle either the petition or summons in the matter of the Act. (Hamer v. (riles, 11 Ch. D. 942 ; but see Brown v. Trotman 41 L. T. 179.) " The current series of the Law Journal and Lam Times, and the Now Series of the Jurist, are respectively intended, except where the contrary is stated. NEW COMMON LAW PRACTICE. Just Published, in 2 vols, 'demy 8vo, price £3 3s. cloth. AECHBOLD'S PEACTICE OF THE QUEEN'S BENCH, COMMON PLEAS, AND EXCHEQUER DIVI- SIONS OF THE -HIGH COURT OF JUSTICE in Actions, &c, in which they have a Common Jurisdiction. The Thir- teenth Edition, by Samuel Pbentice, Esq., .of the Middle Temple, one of Her Majesty's Counsel. CHITTY'S FORMS.— NEW EDITION. Just Published, demy 800, price £1 18s. cloth. FOEMS OF PRACTICAL PEOCEEDINGS IN THE QUEEN'S BENCH, COMMON PLEAS, AND EX- CHEQUER DIVISIONS OF THE HIGH COURT OF JUSTICE ; with the Statutes and Rules relating thereto, and Notes and Observations thereon. By Thomas Chitty, late of the Inner Temple. Eleventh Edition, by Thomas Willes Chittt, of the Inner Temple, Esq., Barrister-at-Law. DANIELL'S CHANCERY FORMS.— THIRD EDITION. In, One thick Volume, price £2 2s. cloth. FOEMS AND PEECEDENTS OF PEOCEED- INGS IN THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE, and on Appeal thebefeom ; with Dissertations and Notes. Forming a Complete Guide to the Practice of the Chancery Division of the High Court and of the Courts of Appeal. ' By William Henry Upjohn, Esq., Student and Holt Scholar of Gray's Inn, &c. " Mr. Upjohn has restored the volume of Chancery Forms to the place it held ' before the recent changes, as a trustworthy and complete collection of precedents. It has all the old merits ; nothing is omitted as too trivial or commonplace • the solicitor's clerk finds how to indorse a brief, and how, when necessary to eive notice of action; and the index to the forms is full and perspicuous."— Solicitors' Journal. " It will be as useful a work to practitioners at Westminster as it will be to those m Lincoln s Inn. — Law Tirtws. THE PEACTICE OF THE CHANCEEY DIVISION OF THE HIGH COURT OF JUSTICE, AND ON APPEAL THEREFROM. INTRODUCTION. THE CONSTITUTION AND JURISDICTION OF THE CHANCERY DIVISION. By the Supreme Court of Judicature Act, 1873 (a), it is Constitu- enacted that the Chancery Division of the High Court of chancery 6 Justice shall consist of the following judges : The Lord Chan- Division, cellor, who is President of the Division, the Master of the Rolls, and the Vice-Chancellors of the Court of Chancery, or such of them as shall not. be appointed ordinary Judges of the Court of Appeal. Any deficiency of the number of three Vice- Vice-Chan- Chancellors may be supplied by the appointment of a new judge ce ors " in his place. By the Supreme Court of Judicature Act, Additional 1877 (b), power was given to Her Majesty to appoint a judge ^ ge ' of the High Court of Justice in addition to the previously authorised number of judges ; such judge (subject to the pow'er of transfer contained in the Judicature Act, 1873 (c)) to be attached to the Chancery Division. In pursuance of such power Mr. Justice Fry was appointed a judge of the Chancery Division. Any barrister of not less than ten years' standing is qualified Judges to be appointed a judge of the High Court of Justice (d) ; and ^ llfioa " (o) 36 & 37 Vict c. 66, sect. 81, («) 36 & 37 Vict. c. 66, sect. 81. jub-a. i. (d) 36 & 37 Vict. c. 66, sect. 8. (5) 40 Vict. c. 9. INTRODUCTION. Resignation of judges. Vacancy by promotion of judge. tenure of office. Judge can- not sit in House of Commons. Oaths to be taken by judges, — by Lord Chancellor. Precedence of judges. Powers of a single judge. Chancery actions to be heard before one judge. any such judge may vacate his office by resignation in writing under his hand, without any deed of surrender. The office of any judge of the High Court is vacated by his being appointed a judge of the Court of Appeal ; but the vacancy caused by any such appointment is not to prejudice the constitution of the Court (e). The judges of the Supreme Court, with the exception of the Lord Chancellor, hold their offices during good behaviour, subject to a power of removal by Her Majesty, on an address presented to her by both Houses of Parliament. No such judge is capable of being elected to or of sitting in the House of Commons. Every person appointed after the passing of the Judicature Act, 1875, to be a judge of the Supreme Court (other than the Lord Chancellor), when he enters on the exe- cution of his office, must take in the presence of the Lord Chancellor, the oath of allegiance and judicial oath, as defined by the Promissory Oaths Act, 1868. The oaths taken by the Lord Chancellor are the same as before the passing of the Act (/). The judges of the High Court of Justice who are not also judges of the Court of Appeal rank next after the judges of the Court of Appeal, and, among themselves (subject to tbe pro- visions in the Judicature Act, 1873, as to existing judges), according to the priority of their respective appointments (g). Any judge of the High Court may, subject to any Eules of Court, exercise in Court or in chambers all or any part of the jurisdiction by the Judicature Act, 1873, vested in the High Court, in all such causes and matters, and in all such proceedings in any causes or matters, as, before the passing of the Act, might have been heard in -Court or in chambers respectively by a single judge of any of the Courts whose jurisdiction was thereby transferred to the High Court, or as may be directed or authorised to be so heard by any Eules of Court to be thereafter made. In all such cases, any judge sitting in Court is deemed to constitute a Court (A). Subject to any Eules of Court, all business arising out of any cause or matter assigned to the Chancery Division is to be transacted and disposed of in the first instance by one judge (?) 36 & 37 Vict. c. 66, sect. 7. (/) 38 & 39 Vict. c. 77, sect. 5. (?) 38 & 39 Vict. c. 77, sect. 6. (h) 36 & 37 Vict. c. 66, sect. 39 ; and see 39 & 40 Vict. c. 59, sect. 17. INTRODUCTION. 3 only ; and every cause or matter ■which after the commence- . ment of the Judicature Act, 1873, may be commenced in the Chancery Division is to be assigned to one of the judges thereof, by marking the same with the name of such judge as the plaintiff or petitioner (subject to the power of transfer) may in his option think fit (i). All officers, who at the time of the commencement of the Officers of Judicature Act, 1873, were attached to the Court of Chancery ^-^ have been attached to the Chancery Division of the High Court of Justice (j). Subject to the provisions in the Judicature Act, Officers of 1873, contained with respect to existing officers of the Courts ° u P™ me whose jurisdiction is thereby transferred to the Supreme Court there are to be attached to the Supreme Court such officers as the Lord Chancellor, with the concurrence of the Presidents of the Divisions of the High Court of Justice, or the major part of them, of which majority the Lord Chief Justice of England is to be one, and with the sanction of the Treasury, may from time to time determine. Such of the said several officers re- spectively as may be thought necessary or proper for the per- formance of any special duties, with respect either to the Supreme Court generally, or with respect to the High Court of Justice or the Court of Appeal, or with respect to any one of the Divisions of the said High Court, or with respect to any parti- cular judge or judges of either of the said Courts, may by the same authority, and with the like sanction, be attached to the said respective Courts, Divisions, and judges accordingly. All Officers officers assigned to perform duties with respect to the Supreme ^^^'^j Court generally, or attached to the High Court of Justice or Lord Chan- the Court of Appeal, and all commissioners to take oaths or ce or " affidavits in the Supreme Court are to ' be appointed by the Lord Chancellor. All officers attached to the Chancery Division By whom who have been heretofore appointed by the Master of the Eolls, £^j^ d are to continue, while so attached, to be appointed by him ; cases. and all other officers attached to any Division of the High Court are to be appointed by the President of that Division. All officers attached to any j udge are to be appointed by such judge. Any officer of the Supreme Court (other than such Removal officers attached to the person of a judge, who are removable of officers. (i) 36 & 37 Vict. c. 66, sect. 42. Vict. c. 77, sect. 34 ; and 41 & 42 j) Ord. IjX. x-. 1. And see 36 Vict. u. 35, sect. 2. & 37 Vict. c. 66, sect. 77 ; 38 & 39 B 2 INTRODUCTION. Matters specially assigned to the Chancery Division. County Courts. by him at his pleasure) may be removed by the person having the right of appointment to the office held by him, with the approval of the Lord Chancellor, for reasons to be assigned in the order of removal (k). Subject to Rules of Court or orders of transfer to be made from time to time under the authority of the Act, the follow- ing matters are by the Judicature Act, 1873 (l), assigned to the Chancery Division : — (1.) All causes and matters pending in the Court of Chancery at the commencement of the Act. (2.) All causes and matters to be commenced after the commencement of the Act, under any Act of Par- liament, by which exclusive jurisdiction in respect to such causes or matters has been given to the Court of Chan- cery, or to any judges or judge thereof respectively (m), except appeals from County Courts (n). (3.) All causes and matters for any of the following purposes : — The administration of the estates of deceased persons; The dissolution of partnerships or the taking of partnership or other accounts ; The redemption or foreclosure of mortgages ; The raising of portions or other charges on land ; The sale and distribution of the proceeds of pro- perty subject to any lien or charge ; The execution of trusts, charitable or private ; The rectification, or setting aside, or cancellation of deeds or other written instruments ; The specific performance of contracts between vendors and purchasers of real estates, including contracts for leases ; The partition or sale of real estates ; The wardship of infants and the care of infants' estates. The County Courts have concurrent jurisdiction with the Chancery Division in many cases to the extent of £500 (nn). (h) 36 & 37 Vict. c. 66, sect. 84. and Old. LVIII. r. 19, (Z) 36 & 37 Vict. c. 66, sect. 34. (nn) See 16 Y 17 ' Vict c 137 (m) See Part III. s. 32 ; 28 & 29 Vict. c. 99; 30 (n) As to these, see 36 & 37 Vict. & 31 Vict. o. 142 : 31 & 32 VM c. 66, sect. 45 ; Ord. LVIIa, r. 1 ; c. 40, ». 12 PAET I. THE ORDINAKY PROCEEDINGS IN AN ACTION IN THE CHANCERY DIVISION, AND ON APPEAL THEREFROM. CHAPTER I. PARTIES. [As to actions by and against Particular Persons, see Part IV.} (1.) In General — As to Plaintiffs. No action is to be defeated by reason of the misjoinder of Misjoinder, parties, and the Court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it (o). All persons may be joined as plaintiffs in whom the right to Who may any relief claimed is alleged to exist, whether jointly, severally, ^ 3°™ ed or in the alternative. And judgment may be given for such tiffs, one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, is entitled to his costs occasioned by so joining any person or persons who shall not be found entitled to relief, unless the Court in disposing of the costs of the action shall otherwise direct (p). Two owners of distinct properties cannot join as plaintiffs in an action to restrain a nuisance (q). Where there are numerous parties having the same interest Numerous (o) Ord. XVI. r. 13. {g) Appletonv. Chapel Tovm Paper (p) Ord. XVI. r. 1. Co., 45 L. J. Oh. 276. 6 ORDINARY PROCEEDINGS IN AN ACTION. parties in one action, one or more of such parties may sue or be sued, sa^!n* he or ma y be authorised by the Court to defend in such action, terest. on behalf or for the benefit of all parties so interested (r). Where a plaintiff sues for the administration of real and per- sonal estate, on behalf of himself and others under this rule, the fact should be stated in the title of the writ and in the indorsement of claim (s). Other persons will not be ordered to be added merely that the defendant may have better security for costs (t). If the representatives be fairly selected, and the matter fairly contested, the whole class will be bound (m). Section 42 Subject to the provisions of the Judicature Acts and Rules, V" * 5 & 86 *^ e P rov i s i° ns as t° parties, contained in section 42 of 15 & 16 Vict. c. 86, are applied to actions in the High Court of Jus- tice (uu). By such section it is enacted that it shall not be competent to any defendant in any suit in the Court of Chancery to take any objection for want of parties to such suit in any case to which the rules next thereinafter set forth extend, namely: — Eule 1. Any residuary legatee or next of kin may, without serving the remaining residuary legatees or next of kin, have a decree for the administration of the personal estate of a deceased person. Rule 2. Any legatee interested in a legacy charged upon real estate, and any person interested in the pro- ceeds 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 administra- tion of the estate of a deceased person. Rule 3. Any residuary devisee or heir may, without serving any oo -residuary devisee or co-heir, have the like decree. Rule 4. Any one of several cestuis que trusts under any deed or instrument may, without serving any other of such cestuis que trusts have a decree for the execution of the trusts of the deed or instrument. Rule 5. In all cases of suits for the protection of pro- (r) Ord. XVI. r. 9. (() De ffm . f y Stev j Q B («) Worraker v. Pryor, 2 Ch. D. D. 313 cl 9 ^J° y w' ^n V- oft e ' 5 '<"> '«"«»***" of Severs y. Ch. D. 540 ; Eyre v. Oox, 24 W. R. Gellaily, 3 Ch. D. 610 317 ; Me Vincent, 26 W. E. 94. ( uu ) Ord. XVI. r. 11. PARTIES. 1 perty pending litigation, and in all cases in the nature of waste, one person may sue on behalf of himself and of all persons having the same interest. Rule 6. Any executor, administrator, or trustee may obtain a decree against any one legatee, next of kin, or cestui que trust for the administration of the estate or the execution of the trusts. Rule 7. In all the above cases the Court, if it shall see fit, may require any other person or persons to be made a party or parties to the suit, and may, if it shall see fit, give the conduct of the suit to such person as it may deem proper, and toay 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, accord- ing to the present practice of the Court, would be necessary parties to the suit shall be served with notice of the decree, and after such notice they shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit, and they may by an order of course have liberty to attend the proceed- ings 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. Rule 9. In all suits concerning real or personal estate which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent the persons bene- ficially interested under the trust, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons bene- ficially interested under the trusts parties to the suit ; but the Court may, upon consideration of the matter, on the hearing, if it shall so think fit, order such persons, or any of them, to be made parties. A cestui que trust is not entitled as of right to a decree for Cestui que trust. ORDINARY PROCEEDINGS IN AN ACTION. General adminis- tration. Where right of heir, or next of kin, or a class depends on construc- tion of in- strument. execution of the trusts (v). In case of the general administra- tion of an estate all the executors or accounting trustees must be parties (w). In any case in which the right of an heir-at-law or the next of kin or a class shall depend upon the construction which the Court may put upon an instrument, and it shall not be known or be difficult to ascertain who is or are such heir-at-law or next of kin or class, and the Court shall consider that in order to save expense or for some other reason it will be convenient to have the question or questions of construction determined before such heir-at-law, next of kin, or class shall have been ascertained by means of inquiry or otherwise, the Court may appoint some one or more person or persons to represent such heir-at-law, next of kin, or class, and the judgment of the Court in the presence of such person or persons shall be binding upon the party or parties or class so represented (a). Who may be joined as defen- dants. (2.) In General — .4* to Defendants. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment (5). If the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants to the intent that in such action the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties to the action (c). Where an agent's authority was disputed, the plaintiff was allowed to join both principal and agent, and claim relief against the principal, or, in the alternative, against the agent, in case it were determined that he had no authority (d). And a plaintiff was permitted to join an alleged trespasser, claiming under a grant from the plaintiff's landlord, and the landlord, who had covenanted for quiet enjoyment (e). A plaintiff who (») McWade v. Broadhurst, 24 W. R. 232. (w) latch v. Latch, 10 Ch. 464. Qa) Ord. XVI. r. 9a ; and see Peppett') Estate, 4 Ch. D. 230. (J) Ord. XVI. r. 3. (c) Ord. XVI. i. 6. (d) Honduras Ry. Co. v. Lefevre, 2 Ex. D. 301. (e) Child v. Stenning, 5 Ch. D. 695. PARTIES. 9 claims inconsistent alternative relief against separate defen- dants, may proceed against both at the hearing ; and the costs of the one against whom he fails may have to be paid by the other against whom he succeeds (/). The plaintiff may, at his option, join as parties to the same Several action all or any of the persons severally, or jointly and f^^™* 3 severally, liable on any one contract, including parties to bills contract. of exchange and promissory notes (g). It is not necessary that every defendant shall be interested Defendant as to all the relief prayed for, or as to every cause of action ; need not , be interested. but the Court or a judge may make such order as may appear as to all just to prevent any defendant from being embarrassed or put to tlle ^ elie ^ , , . ., , , f sought. expense by being required to attend any proceedings in the action in which he may have no interest (/»). Where there are numerous parties having the same interest Numerous in one action, one or more of such parties may be sued, or may P ar * ies be authorised by the Court to defend in such action on behalf the same of or for the benefit of all parties so interested («). interest. (3.) Addition, Striking Out and Substitution of Parties generally (j). The Court or a judge may at any stage of the proceedings, Power of either upon or without the application of either party, and on 9°? rt or such terms as may appear to the Court or a judge to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants, improperly joined be struck out, and that the name or names of any party or parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added. No person shall be added as a plaintiff suing without a next pi a j n tiff friend, or as the next friend of a plaintiff under any disability, no* to be without his own consent thereto (k). Any person whose pre- ut consent. (/) Child v. Stenning, 11 Ch. D. (i) Ord. XVI. r. 9; and see further 82. as to defendants, Id. rr. 7, 8, 10, (g) Ord. XVI. t. 5. and ante, p. 6 ; see also Wilson v. , (h) Ord. XVI. r. 4. See Cox v. Church, 9 Ch. D. 552. Barker, 3 Ch. D. 359 ; and Manches- (j) For forms, see Daniell's Forms, ter, dec, By. Co. v. Brooks, 2 Ex, D. 3rd ed. 5—7. 243. (*) Ord. XVI. r. 13. 10 ORDINARY PROCEEDINGS IN AN ACTION. Who may be added. Who may apply. Doubt as to right plaintiff. Section 42 of 15 & 16 Vict. c. 86. Applica- tion, how made. sence is necessary for deciding the questions involved in the action, may be added as a defendant under the foregoing rule ; but such person must be one against whom the plaintiff has a cause of action, and not one whom he does not wish to sue (I). In an action by lessor against lessee to recover the demised premises, on the ground of forfeiture, the mortgagee of the lessee was not allowed to be made a party under this rule (m). The application under Eule 13 may be made either by a plaintiff or a defendant (n). An application to strike out the name of a person added as a plaintiff without his consent, can only be made by the person so added (o). Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff or plaintiffs, the Court or a judge may, if satisfied that it has been so commenced through a bond fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as may seem just (p). The application under this Rule can only be made by a plaintiff, and the. plaintiff will be changed only in cases where the action has been " commenced through a bond fide mistake *' (g) ; although it matters not whether the mistake be one of law or of fact (r). In certain cases under section 42 of 15 & 16 Vict. c. 86, the Court may require any other person or persons to be made a party or parties (s). Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a judge at any time before trial by motion or summons, or at the trial of the action, in a summary manner (t). As a general rule, the application should be made by summons at chambers (u). The applica- (l) Norris v. Eeadey, 2 C. P. D. 80. And see Sorry v. Davey, 2 Ch. D. 721. (m) Mills v. Griffiths, 45 L. J. (Q. B.) 771. (») Re Worthy, 4 Cb. D. 180 Edwards v. Lowther, 24 W. R. 434 Day v. SadcUffe, 24 W. K. 844 Norris v. Beazley, 2 C. P. D. 80 Vallance v. Birmingham Corpora- tion, 2 Ch. D. 369. (o) Duckett v. Gover, 25 W. K. 554. (p) Ord. XVI. r. 2. (g) Clowes v. Milliard, 4 Ch. D. 413. (r) Duckett v. Gover, 6 Ch. D. 82. («) See Eule 7, p. 7, ante; and Ord. XVI. r. 7. (*) Ord. XVI. «-. 14. (u) Wilson v. Chwrch, 9 Ch. D. 552. PAETIES. 11 tion should be made on notice (v) ; but an order adding de- fendants was made on the ex parte application of the plaintiff, the order being conditional, but to become absolute, unless the defendants added showed cause to the contrary within eight days (w). An order adding, striking out, or substituting a party is in the discretion of the Court or judge (x). Where a defendant is added, unless otherwise ordered by the Plaintiff's Court or judge, the plaintiff must file an amended copy of and P™ cee dings sue out a writ of summons, and serve such new defendant with fendant such writ or notice in lieu of service thereof in the same added - manner as original defendants are served, or in such manner as may be prescribed by any special order, and the proceedings as against him are deemed to have begun only on the service of such summons or notice. If a statement of claim has been delivered previously to such defendant being added, the same must, unless otherwise ordered by the Court or judge, be amended in such manner as the making such new defendant a party shall render desirable, and a copy of such amended state- ment of claim must be delivered to such new defendant at the time when he is served with the writ of summons or notice, or afterwards, within four days after his appearance (y). An order will not be made to strike out the name of a Security plaintiff without providing that security for costs shall be given, unless such security be waived by the defendant (z). for costs. (4.) As to Change of Parties on, a cliange or transmission of interest or liability (a). An action does not become abated by reason of the marriage, Marriage, death, or bankruptcy of any of the parties, if the cause of | ^^j' action survive or continue, and does not become defective by the assignment, creation, or devolution of any estate or title pendente lite (b) ; but where on any event occurring after the Order to commencement of an action, and causing a change or trans- proceedings mission of interest or liability, or by reason of any person after interested coming into existence after the commencement of ; n ^.gg t ° the action, it becomes necessary or desirable that any person &c (v) Tildesleyv.Barper,3Ch.V.277. (y) Ord. XVI. rr. 13, 15, 16. (w) Re Woriley, i Ch. D. 180 ; (z) Daniell's Practice, 331. Wilson t. Church, 9 Ch. D. 552. [a) For forms, see Daniell's Forms (%) New Westminster Brewery Co. 3rd ed. 9 — 16. y. Hannah, 21 W. R. 899. (b) Ord. L. r. 1. !2 ORDINARY PROCEEDINGS IN AN ACTION. not already a party to the action should be made a party thereto, or that any person already a party thereto should be made a party thereto in another capacity, an order that the proceedings in the action shall be carried on between the con- tinuing parties, and such new party or parties, may be obtained ex 'parte on application to the Court or a judge, upon an allega- tion of such change, or transmission of interest or liability, or of such person interested having come into existence (c). In case of an assignment, creation, or devolution of any estate or title pendente lite, the action may be continued by or against the person to or upon whom such estate or title has come or devolved (d). In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to an action, the Court or a judge may, if it be deemed necessary for the complete settlement of all the questions involved in the action, order that the husband, personal representative, trustee, or other successor in interest, if any, of such party be made a party to the action, or be served with notice thereof, on such terms as the Court or judge shall think just, and shall make such order for the disposal of the action as may be just («). Application Order L. applies not only to an action, but also where pro- r ■ ■ ceedings have been originated by petition (/). An order to When order ., j- • j ■, , to carry on can 7 on the proceedings is necessary and proper only where necessary, the interest or liability of some party to the action devolves upon some person or persons not parties to the action, or where some person or persons not parties to the action When such become interested in the subject-matter thereof. Such an order ord.Gr iiTG" gular. ia irregular where the interest or liability of a party is by his death or other event altogether determined ; or his interest or liability survives to some person or persons already parties (g). Who may There being nothing in the new rules to alter the practice in order. tnis res P ect > it i g probable that before judgment an order to carry on the proceedings can be obtained only by the plaintiff or his successor ; but, after judgment, either by the plaintiff or Time for defendant, or the successor of either (h). The rules are silent application. ag to tne time w i tnm w hi c h the order should be obtained ; so (c) Ord. L. r. 4. As to what causes of action survive, () Cons. Ord. VII. t. 7 ; Dan. 3rd ed. 28—30. Pr. 363. ('•) See p. ?. (2) For forms, sec Daniell's Forms, (s) Dan. Pr. 180— 1 S3. to 20 ORDINARY PROCEEDINGS IN AN ACTION. Special cases and petitions. Mode of applica- tion. Special oases (t) and petitions (w) are within the section (v). The application is usually by motion ex parte ; but where, after judgment, the representation is required for the purpose of proceedings in Chambers, the application may be made there by summons ex parte. Before the order is drawn up, notice should be given to the person who is entitled to take out administration to the deceased (w). (t) Swallow v. Binns, 9 Hare, App. xlvii. (») Re StewaH, Id. xlii. (v) For other decisions, sec Morgan, 190—192. (w) Dan. Pr. 183. CHAPTEE II. THE WKIT OP SUMMONS. ( 1 . ) General Regulations (a) . All suits which were commenced in the Court of Chancery All actions by bill or information are to be instituted in the High Court of mence( j t,y Justice by a proceeding to be called an action (6) ; and every writ of action in the High Court is to be commenced by a writ of summons - summons (c). Writs of summons are to be prepared by the plaintiff or his By whom, solicitor, and are to be written or printed, or partly written JJLjared and partly printed, on cream wove machine drawing foolscap folio paper, 19 lbs. per mill ream, or thereabouts, with an inner margin about three-quarters of an inch wide, and an outer margin about two inches and a half wide (d). The writ must be marked with the name of one of the judges Name of of the Chancery Division (e) ; but by order of the Lord ■'" ge ' Chancellor, of June, 1877, no cause or matter may, until further order, be assigned to Mr. Justice Fry. by being marked by the plaintiff or petitioner with the name of the said Mr. Justice Fry. Every writ of summons must bear date on the day on which Date and it is issued, and must be tested in the name of the Lord writ Chancellor, or, if the office of Lord Chancellor be vacant, in the name of the Lord Chief Justice of England (/). (2.) Indorsements (g). The writ of summons must be indorsed with a statement, of Of nature the nature of the claim made, or of the relief or remedy re- olium - (a) For forma, see Daniell's Forms, (e) 36 & 37 Vict. e. 66, ss. 33, 3rd ed. 94—100. 42 ; Ord. V. rr. i, ia. (6) Ord. I. r. 1. (/) Ord. II. s. 8. (c) Ord. II. r. 1. {g) For forms, see Daniell's Forms, (d) Ord. V. r. 5 ; Ord. I/VX r. 2. 3rd ed. 101—118 ORDINARY PROCEEDINGS IN AN ACTION. Repre- sentative capacity. Indorse- ment of amount of debt and costs. Address of plaintiff and ad- dress for service. Agency Where plaintiff sues in person. quired in the action (A). Such indorsement must be made before the writ is issued ; but it is not essential to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled. By leave of the Court or judge, the indorsement may be amended so as to be extended to any other cause of action or any additional remedy or relief. If none of the forms of indorsement in Part II. of Appendix (A) to the Judicature Act, 1875, are found applic- able, then such other similarly concise form may be used as the nature of the case may require (i). If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the indorsement must show, in manner appearing by the statement in Appendix (A), Part II. Sec. 8 to the Judicature Act, 1875, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued (/). If the plaintiff's claim is for a debt or liquidated demand only, the indorsement, besides stating ttie nature of the claim, must state the amount claimed for debt, or in respect of such demand, and for costs respectively, and that upon payment thereof within four days after service, or, in case of a writ not for service within the jurisdiction, within the time allowed for appearance, further proceedings will be stayed (h). The solicitor of a plaintiff suing by a solicitor must indorse upon every writ of summons and notice in lieu of service of a writ of summons, the address of the plaintiff, and also his own name or firm and place of business, and also, if his place of business is more than three miles from Temple Bar{Z), another proper place to be called his address for service, which shall not be more than three miles from Temple Bar, where writs, notices, petitions, orders, summonses, warrants, and other docu- ments, proceedings, and written communications may be left for him. And where any such solicitor is only agent of another solicitor, he must add to his own name or firm and place of business the name or firm and place of business of the principal solicitor. A plaintiff suing in person must indorse upon every writ of summons and notice in lieu of service of a writ of (A) Ord. II. r. 1. H) Ord. III. rr. 1—3. (j) Ord. III.r. 4. (k) Ord. III. i. 7. (I) This would doubtless now be deemed to mean "three miles from the place where Temple Bar formerly stood." THE WRIT OF SUMMONS. 23 summons his place of residence and occupation, and also, if his place of residence is more than three miles from Temple Bar, another proper place for service, as above mentioned, in the case of the solicitor of a plaintiff suing by a solicitor (m). Where the writ is issued out of a District Kegistry the Addresses solicitor must give on the writ the address of the plaintiff, and J s ^ ™ t his own name or firm and his place of business, which shall, if of district his place of business be within the district of the registry, be re S 1Btr y- an address for service, and if such place be not within the district he must add an address for service within the district, and where the defendant does not reside within the district he must add a further address for service, not more than three miles from Temple Bar ; and where the solicitor issuing the writ is only agent of another solicitor, he must add to his own name or firm and place of business the name or firm and place of business of the principal solicitor. Where the plaintiff sues in person, he must give on the writ his place of residence and occupation, which shall, if his place of residence be within the district, be an address for service, and if such place be not within the district, he must add an address for service within the district, and where the defendant does not reside within the district, he must add a further address for service, not more than three miles from Temple Bar (n). In all actions where the plaintiff seeks merely to recover a Special debt or liquidated demand in money payable by the defendant, intlo J se " with or without interest, arising upon a contract express or implied, as, for instance, on a bill of exchange, promissory note, cheque, or other simple contract debt, or on a bond or contract under seal for payment of a liquidated amount of money, or on , a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt, or on a guaranty, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque, or note, or on a trust, the writ may be specially indorsed with the particulars of the amount sought to be recovered, after giving credit for any payment or set-off (o). A description on a writ, however intelligible of a cause of action, is not sufficient to constitute a special indorsement under Ord. III. r. 6, without (m) Ord. IV. rr. 1, 2. These rules (n) Ord. IV. r. 3a. only apply where the writ is issued in (o) Ord. III. r. 6. London. (R. 2 of Feb. 1876.) 24 ORDINARY PROCEEDINGS IN AN ACTION. Claim for an account. Order for account. Indorse- ment of service. particulars specifying the dates and amounts in respect of which the claim is made ( p). The advantage of thus specially indorsing the writ in cases where it may be done are very con- siderable, as not only may the plaintiff sign final judgment in case of non-appearance (q) ; but also notwithstanding appear- ance, unless the defendant satisfies a judge that he ought to be allowed to defend (r). In all cases of ordinary account, as, for instance, in the case of a partnership or executorship or ordinary trust account, where the plaintiff in the first instance desires to have an account taken, the writ must be indorsed with a claim that such account be taken (s). In default of appearance to a summons indorsed under Ord. III. r. 8, and after appearance unless the defendant, by affidavit or otherwise, satisfy the Court or a judge that there is some preliminary question to be tried, an order for the account claimed, with all the directions formerly usual in the Court of Chancery in similar cases, will be forthwith made on the plaintiff's application (t). The person serving the writ must make the prescribed indorsement as to service {u). Power of Court or judge to order sepa- rate trials. (3.) Joinder of Causes of Action (*). Subject as hereinafter mentioned, the plaintiff may unite in the same action and in the same statement of claim several causes of action, but if it appear to the Court or a judge that any such causes of action cannot be conveniently tried or dis- posed of together, the Court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof (y). Such causes of action may be either cumulative or in the alternative (z). (p) Pavrpaite v. Dickenson, 38 L. T. 178 ; and see Walker v. Micks, 3 0, B. D. 8. (2) See Ord. XIII. rr. 3, 4, post. Part I. Chap. IV. (r) See Ord. XIV. r. la, post, Part 1. Chap. V. (s) Ord. in. r. 8. («) Ord. XV. («) See post, Section 8. (x) For form of motion paper for leave to join other claims with claim for recovery of land, see Daniell's Forms, 3rd ed. 118. (y) Ord. XVII. r. 1. {z) Bagot v. Easton, 7 Ch. D. 1 ; and see Evans v. Buck, 4 Ch. D. 432, THE WfUT OF SUMMONS. 2o No cause of action may, unless by leave of the Court or a Where judge, be joined with an action for the recovery of land, except 7 e J 6 " claims in respect of mesne profits or arrears of rent in respect join causes of the premises claimed, or any part thereof, and damages for Milon - breach of any contract under which the same or any part thereof are held (o). An action to establish title to land is an action " for the recovery of land " within Ord. XVII. r. 2 (b) ; while a foreclosure action is not (c). Leave will be given to join with a claim for the recovery of land, a claim for the recovery and cancellation of a deed relating thereto (d). So leave has been given to join a clajm for an injunction to restrain the defendant from receiving rent (e) ; for a receiver (/) ; for administration of the personal estate, where the plaintiff was both heir-at-law and one of the next of kin (g) ; for an order that the defendant execute a conveyance of the same and other property (h) ; and for the recovery of personal estate, where both the real and the personal estate are comprised in the same instrument (i). Claims by a trustee in bankruptcy, as such, may not, unless Claims by by leave of the Court or a judge, be joined with any claim by ruptcy' him in any other capacity (j). trustee. Claims by or against husband and wife may be joined with Claims by claims by or against either of them separately (k). husband Claims by or against an executor or administrator, as such, and wife, may be joined with claims by or against him personally, pro- Claims by vided the last-mentioned claims are alleged to arise with refe- executors, rence to the estate in respect of which the plaintiff or defendant &c - sues or is sued as executor or administrator (£). Claims by plaintiffs jointly may be joined with claims by Joint and them or any of them separately against the same defen- ^J^* 8 dant (m). (a) Ord. XVII. r. 2 ; Pitcher v. (g) KUchiitg v. Kttching, 24 W. Hinds, 40 L. T. 422. B. 901. (6) Whetstone v. Dewis, 1 Ch. D. (h) Mcmisty v. Kenealy, 24 W. 99. E. 919- (c) Tawellr. Slate Co., 2 Ch. D. (i) Whetstone v. Dewis, sup. ; Cook g29. v. Enchmarch, sup. (d) Cook v. Enchmarch, 2 Ch. D. (j) Ord. XVII. i. 3. HI. (*) Ord. XVII. r. 4. (e) Cook v. Enchmarch, sup. (I) Ord. XVII. r. 5. (/) Allen v. Rennet, 24 W. R. (m) Ord. XVII. r. 6. 845. XVII. 26 ORDINARY PROCEEDINGS IN AN ACTION. Rules of Eules 4, 5, and 6 of Ord. XVII. are subject to Eules 1, 8, ' and 9 of the same order (n). Order Any defendant alleging that the plaintiff has united in the actfon'to same aotion several causes of action which cannot be conve- certain niently disposed of in one action, may at any time apply to the action. ° f Collrt or a judge for an order confining the action to such of the causes of action as may be conveniently disposed of in one proceeding ; and if, on the hearing of such application, it appears to the Court or a judge that the causes of action are such as cannot all be conveniently disposed of in one action, the Court or a judge may order any of such causes of action to be excluded, and may direct the statement of claim, or, if no statement of claim has been delivered, the copy of the writ of summons, and the indorsement of claim thereon, to be amended accordingly, and may make such order as to costs as may be Suggested just (o). Kule 1 of Ord. XVII. gives power to " order separate meaning o ^ r j a j s j> anv f g^jj cauges f action, or make such other order & 9 of Ord. as may be necessary or expedient for the separate disposal thereof." Eules 8 & 9 speak of an order " confining the action to such of the causes of action as may be conveniently disposed of in one proceeding," and ordering other causes of action " to be excluded." If these latter rules are to be construed strictly it seems probable that, except in some very extreme case, the former and less stringent power will be exercised, rather than the latter and more stringent. Possibly, however, the first rule may be regarded as the governing rule ; and the latter rules may be read as merely providing the machinery for giving effect to it. If so, an order confining the action may perhaps be read as meaning no more than an order under Eule 1 ; and the order for amending the proceedings mentioned in Eule 9 may be little more than an order for separate records, under sect. 41 of the C. L. P. Act, 1852 (p). (4.) Issuing the Writ (q). Out of In any action (other than a Probate action) the plaintiff gistry™ 5 ' wherever resident may issue a writ of summons out of the (n) Ord. XVII. .. 7. ( or during the pendency thereof where the Court shall be satisfied that the litigation is not prosecuted bond fide, make an order, if it shall see fit, for the vacating of the regis- tration without the consent of the party who registered it ; and may, in the discretion of the Court, direct the party on whose behalf the registration was made, to pay all the costs and expenses occasioned by the registration or the vacating thereof ; and that the application to the Court pending the litigation may be in a summary way by petition or motion in Court, or by summons at Chambers ; and if an order shall be made vacating any such* -registration, the Senior Master shall, upon the filing with him of an office copy pf such order, enter a discharge of such lis pendens on the register, and shall be en- titled for every such entry of discharge to the sum of Is. 9>d.; and may issue certificates of such entry, and may charge for every such certificate the sum of Is. Kequire- The acknowledgment under 23 & 24 Vict. c. 115 must be TcW^ 10 on parchment and signed by the plaintiff, or his executor or (») Ord. as to Court Fees, Oct., 2 & 3 Vict. c. 11, ss. 4, 7 ; 18 & 19 1875, Sehed. Vict. c. 15, s. 6 ; Sugd. V. & V. (o) Ord. as to Fees, April, 1876, 543 ; Ban. Pr. 328. Sched. As to re-registration, see THE WRIT OF SUMMONS. 33 administrator, and attested by a solicitor. If there are several ledgmente plaintiffs, and the signatures of all cannot' be obtained, those 24 vict who sign should do so on behalf of themselves and' their co- «• 115. plaintiffs (p). Under this Act the fee for entering satisfaction Fees. was 2s. Qd., and the Schedule to the Order as to Court Fees of Oct., 1875, is silent on the point ; it is therefore presumed that the old fee remains. For a certificate of the entry the fee is Is., payable by a stamp impressed on the certificate {q). Under 30 & 31 Vict. c. 47, s. 2, the application must be Application entitled in the matter of the act, and in the matter of the g"^^ & registered action (r) ; and unless notice be given to the plaintiff c. 47. an order nisi only will be made (s). When the defendant petitions for entry of satisfaction the Petition by consent of the plaintiff's solicitor to the prayer must be ob- defendant tained. If the plaintiff declines to apply, or to consent to the faction. defendant's petition, the order must be obtained on special petition, motion, or summons, on notice to the plaintiff (t). (8.) Service of the Writ (w). Where practicable, the service of the writ must be per- Personal, sonal (x) ;-by leaving with each defendant a true copy thereof, and showing the original to him if he desires it (y). When husband and wife are both defendants to the action , Husband service on the husband i« g""d sprvifiP. nn t.hfl wifa, hnl tha and wi e. Court or a judge may order that the wife shall be served with or without service on the husband (z). When an infant is a defendant to the action, service on his Infant. or her father or guardian, or, if none, then upon the person with whom the infant resides or under whose care he or she is, is, unless the Court or judge otherwise orders, good service on the infant ; but the Court or judge may order that service made or to be made on the infant shall be- good service (a). When a lunatic, or person of unsound mind not so found Persons of (p) Pask's Sup. 31, 32. (u) For forms, see Daniell"s Forms, (q) Ord. as to Conrt Fees, Oct., 3rd ed. 137—145. 1875, Sched. ; Ord. as to Fees, April, (x) Ord. IX. r. 2. 1876, Sched. (y) Goggs v. Huntingtower, 12 (r) Clutton v. Lee, 7 Oh. D. 541, n. M. & W. 503. (s) Podey v. Boscmguet, 7 Ch. D. («) Ord. IX. r. 3. 541. (a) Ord. IX. r. 4. (*') Id. ORDINARY PROCEEDINGS IN AN ACTION. ursound mind. Partners. Person trading in the name of a firm. Service under par- ticular statutes. Corpora- tion. Inhabit- ants of a hundred— or other place. Joint-stock Company. by inquisition is a defendant to the action, service on trie committee of the lunatic, or on the person -with whom the person of unsound mind resides, or under whose care he or she is, is, unless the Court or judge otherwise orders, good service on such defendant (b). Where partners are sued in the name of their firm, the writ may be served either upon any one or mor e of the partners or at the principal place, within the jurisdiction, of the business of the partnership upon any person having at the time of service the control or management of the partnership business there (c) ; and where one person carrying on business in the name of a firm apparently consisting of more than one person is sued in the firm's name, the writ may be served at the prin- cipal place, within the jurisdiction, of the business so carried on upon any person having at the time of service the control or management of the business there (d). Notwithstanding these rules, a writ issued under the Bills of Exchange Act (e) must be personally served on each partner (/). Whenever, by any statute, provision is made for service of any writ of summons, bill, petitioner other process upon any corpora- tion, or upon any hundred, or the inhabitants of any place, or any society or fellowship, or any body or number of persons, whether corporate or otherwise, the writ may be served in the manner so provided (g). By the Common Law Procedure Act, 1852 (A), a writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation; and such a writ issued against the inhabitants of a hundred or other like district may be served on the high constable thereof or on any one of the high constables thereof; and such a writ issued against the inhabitants of any county of any city or town, or the inhabitants of any franchise, liberty, city, town or' place not being part of a hundred or other like district, may be served on some peace officer thereof. By the Companies Act, 1862 (i), any summons, notice, order, or other document re- quired to be served upon the company may be served by leav- (i) Ord. IX. r. 5. (c) Ord. IX. r. 6. (d) Ord. IX. r. 6a. (e) 18 & 19 Yict. c. 50. (/) Pollock v. Campbell, 1 Ex. D. (?) Ord. IX. r. 7. (A) 15 & 16 Vict. e. 76, s. 16. (*) 25 & 26 Vict. c. 89, s. 62. THE WRIT OF SUMMONS. 35 ing tbe same, or sending it through the post in a prepaid letter addressed to the company, at their registered office (k). In an action to recover land, service may, in case of vacant Vacant •possession, when it cannot- otherwise be effected, be made by P° ssession - posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property (I). No service of tbe writ is required when the defendant, by his Service on solicitor, agrees to accept service, and enters an appearance (to). solicltor - A solicitor not entering an appearance in pursuance of his written undertaking so to do on behalf of any defendant is liable to an attachment («). Jf it be made to appear to the Court or to a judge that the Substi- plaintiff is from any cause unable to effect prompt personal tute ? service, tbe Court or judge may make such order for substituted or other service, or for the substitution of notice for service as may seem just (o). The application for such order must be supported by an affidavit setting forth the grounds of applica- tion (p). The affidavit should state the issuing of the writ and that no appearance has been entered thereto by the defendant. When the writ has been issued out of the London office, it will be sufficient in every case to search the cause book there. If the writ has been issued out of a district registry it will, if the defendant resides or carries on business within the district, be sufficient to search the cause book kept at the district registry ; but if he neither resides nor carries on business within the district, it will be necessary to search both the cause book kept at * the district registry and that kept at the Central Office; and the affidavit must then state that both cause books have been searched. It need not now be shown either that the writ has come to the knowledge of the defendant, or that he wilfully evades service (q). The order &r substituted service must be served together with the writ (r). \Substituted (k) See also the similar provisions (n) Ord. XII. r. 14. in the Companies Clauses Act, 1845 (o) Ord. IX. r. 2. (8 Vict. c. 16), s. 135 ; the Lands (p) Ord. X. Clauses Act, 1845 (8 Vict. c. 18), (q) Daniell's Forms, 3rd ed. 140. s. 134 ; and the Railway Clauses Act, (r) As to what persons the Court 1845 (8 Vict. c. 20), s. 138. And will order to be served in substitution, see 7 Will. 4 & 1 Vict. c. 73, ». 26, see Dan. Pr. 370, et seq. A universal as to service on companies chartered agent may be a substitute, and also a under that Act. particular agent, if the particular (F) Ord. IX. r. 8. matter of his agency be also the (m) Ord. IX. r. 1. matter involved in the action. D 2 36 ORDINARY PROCEEDINGS IN AN ACTION. Service out of the jurisdic- tion. Matters to be con- sidered by the judge. service under Ord. IX. r. 2, is, while the order remains undis- charged, equivalent for all purposes to personal service (*). Where a defendant showed that substituted service had failed to bring the proceedings to his knowledge, and that he had a good defence, he was allowed to defend an action in which judgment had been signed on an order for substituted ser- vice (<). Ord. IX. r. 2, so far as relates to substituted service, does not .apply to actions under the Bills of Exchange Act, 18 & 19 Vict. c. 67 (w). Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge whe never the whole or any part of the subject matter of the action is land or stock, or other prop erty situate within the j urisdiction, or any act, deed, will, or thing affecting such land, stock, or property, and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled, or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, was made or entered into within th e jurisdiction, and whenever there has been a breach within the jurisdiction of any contract wherever made , a nd whenever any act or thing sought to be res trained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction (v). When the action is brought in respect of any contract which is sought to be enforced or rescinded, dissolved, annulled or other- wise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, when such contract was made or entered into within the jurisdiction, or whenever there has been a breach within the jurisdiction of any contract wherever made, the judge, in exercising his dis- cretion as to granting leave to serve such writ or notice on a defendant out of the jurisdiction, is to have regard to the amount or value of the property in dispute or sought to be re- covered, and to the existence in the place of residence of the defendant, if resident in Scotland or Ireland, of a local Court of limited jurisdiction, having jurisdiction in the matter in question, and to the comparative cost and convenience of pro- ceeding in England or in the place of such defendant's residence, (») Watt v. Barnett, 3 Q. B. D. 183, 363. (*) Id. 50. (u) Pollock v. Campbell, 1 Ex. D. 0. (v) Ord. XI. r. 1. THE WKIT OF SUMMONS. 37 and in all the above-mentioned cases no such leave is to be granted without an affidavit stating the particulars necessary Affidavit, for enabling the judge to exercise his discretion in manner aforesaid, and all such other particulars (if any) as he may require to be shown (x). Where the affidavit contained no statement as to the existence of a local Court in Scotland it was held insufficient and leave refused (y). And leave was refused where the affidavit did not state that the defendant was resident out of the jurisdiction (yy). Every application for an order for leave to serve the writ or Evidence notice thereof on a defendant out of the jurisdiction must be ln su PP. ort supported by evidence, by affidavit, or otherwise, showing in cation. what place or country such defendant is or probably may be found, and whether he is a British subject or not, and the grounds upon which the application is made (z). The affidavit may be made by any person who can depose to the facts, and must show that a good cause of action arose within the juris- diction against the defendant, who is out of the jurisdiction. The affidavit will not be allowed to be controverted by the other side, nor will the merits of the case be tried on an ap- plication to set aside the order (a). The order giving leave to effect such service or give such Time for notice must limit a time after such service or notice within a PP ear " ance. which appearance is to be entered ; such time to depend on the place or country where or within which the writ is to be served or the notice given (6). If interrogatories are required the order should provide for Interroga- service thereof, and for an injunction, if sought; but the °™ es ' . plaintiff in his affidavit must show his right to claim the in- junction asked for (bb). Notice of a writ of summons may be given to a foreign cor- Notice to poration not having an office within the jurisdiction (c). porations. If a defendant objects to the order he must apply to have the objection (x) Ord. XI. r. la. (4) Ord. XI. r. 4. (y) Wood v. Melnnes, 4 C. P. D. (bb) Young v. Brassey, 1 Ch. D. 67. 277. (yy) See Cremodl v. Parker, W. (c) Scott v. Royal Wax Candle N. (1879), 73. Co., 1 Q. B. D. 404 ; Westman v. (2) Ord. XI. c. 3. Aktiebolaget Snickarefabrik, 1 Ex. D. (a) Or eat Australian Gold Mining 237. Co. v. Martin, 5 Ch. D. 1, 11, 12. 38 ORDINARY PROCEEDINGS IN AN ACTION. by defend- ant to order. Mode of service out of juris- diction. Substi- tuted service. Indorse- ment of service of writ. order and service set aside. He cannot raise the objection by his statement of defence (d). If the defendant out of the jurisdiction is a British subject, the writ is served in the ordinary way ; if he is not, it is proper to give notice to him in lieu of service (e). Such notice is given in the manner in which writs of summons are served (/); and must bear the same indorsement as to address as a writ of summons (y). If personal service of the writ or notice thereof cannot be promptly effected, an order for substituted or other service may be obtained, as in the case of a defendant within the jurisdiction. The person serving a writ of summons must, within tlvree days at the most after such service, indorse on the writ the day of the- month and week of the service thereof, otherwise the plaintiff cannot, in case of non-appearance, proceed by default ; and every affidavit of service of such writ must mention the day on which such indorsement was made (h). This rule does not apply to cases where an order has been made for substituted service (i). \d) Preston v. Lamont, 1 Ex. D. 361. (e) Westmanv. ATctiebolaget Snick- arefabrik, 1 Ex. D. 237; Bedding- tan v. Seddington, 1 P. D. 426 ; Me Howwrd, 10 Ch. D. 550. (/) Ord. XI. r. 5. (g) See Section 2 of this Chapter. (h) Ord. IX. t. 13. (i) "Dymond v. Croft, 3 Ch. D. 512. CHAPTEE III. PROCEEDINGS BY THE DEFENDANT BEFORE THE PLEADINGS. (1.) Appearance (h). Appearance is the process by which a person against whom Appear- an action has been commenced, submits himself to the juris- ance ' wllat diction of the Court, and subject to a few exceptions, a defen- dant will not be permitted to take any step in the action until an appearance has been entered by or for him. Even if he Condi- desires to object to the regularity of the proceeding by which tlonal ap " the plaintiff has sought to compel his appearance he must first enter a conditional appearance (I). If the writ is issued in London the defendant must appear Where to there ; if issued in a district registry, and the defendant resides be entered - or carries on business within the district, he must appear in the district registry ; but if he neither resides nor carries on business in the district he may appear either in the district registry or in London (m). The appearance is entered by delivering to the proper How officer (n) a memorandum in writing, dated on the day of delivery, and containing the name of the defendant's solicitor, or stating that the defendant defends in person (o). The soli- citor of a defendant appearing by a solicitor must state in such memorandum his place of business, and, if the appearance is entered in the London office, a place, to be called his address for service, not more than three miles from Temple Bar (p), and if the appearance is entered in. the district registry, a place, to be called his address for service, which must be within the dis- trict (j). A defendant appearing in person must state in such memorandum his address, and, if the appearance is entered in (K) For forms, see Daniell's Forms, Supreme Court ; in a district registry, 3rd ed. 147 — 155. the registrar. (Z) Dan. Pr. 459. (o) Ord. XII. r. 6a. (m) Ord. XII. rr. 1—3. (p) See note (I), p. 22. (») In London the Master of the (?) Ord. XII. r. 7. entered. 40 ORDINARY PROCEEDINGS IN AN ACTION. By part- ners. By person trading in name of a firm. May ba entered any time before judgment. Appear- ance for several defendants at same time. Foes. Notice of appear- the London office, a place, to be called his address for service, not more than three miles from Temple Bar, and, if the appear- ance is entered in a district registry, a place, to be called his address for service, which must be within the district (r). If the memorandum does not contain such address it will not be received ; and if any such address is illusory or fictitious, the appearance may be set aside by the Court or a judge on the application of the plaintiff («). Where partners are sued in the name of their firm, they must appear individually in their own names ; but all subse- quent proceedings will, nevertheless, continue in the name of the firm (t) ; and where any person carrying on business in the name of a firm apparently consisting of more than one person is sued in the name of the firm, he must appear in his own name ; but all subsequent proceedings will, nevertheless, con- tinue in the name of the firm (u). A. defendant may appear at any time before judgment (x). If two or more defendants in the same action appear by the same solicitor and at the same time, the names of all the de- fendants so appearing must be inserted in one memorandum {if). On entering appearance a fee of 2s. is payable in respect of each person for whom an appearance is entered (z). Where the appearance is entered for one defendant only, the fee is payable by a stamp impressed on the memorandum ; where appear- ances are entered for several defendants by the same memo- randum, the fees for all persons beyond the first may be paid either by impressed or adhesive stamps (a). Although it is customary to give notice of appearance it is only obligatory in the following cases: (1.) Where the defen- dant appears elsewhere than where the writ was issued he must on the same day give notice of his appearance to the plaintiff's solicitor, or to the plaintiff himself if he sues in person, either by notice in writing served in the ordinary way at the address for service within the district of the district registry, or by prepaid letter directed to such address, and posted on that day in due course of post (6). If the notice is not given the plain- er-) Ord. XII. i. 8. (i) Ord. XII. r. 9. (0 Ord. XII. r. 12. (») Ord. XII. e. 12a. (a) Ord. XII. i: 15. (y) Ord. XII. r. 13. (2) Ord. as to Court Fees, Oct., 1S75, Sched. (a) Ord. as to Fees, April, 18/6, Sched. (J) Ord. XII. r. 6a. 'PROCEEDINGS BY DEPENDANT BEFORE PLEADINGS. 41 tiff may enter judgment as for want of appearance (c). (2.) If the defendant appears at any time after the time limited for appearance (d) he - must, on the same day, give notice to the plaintiff's solicitor, or to the plaintiff himself, if he sues in person (e). (3.) Where a person not named as defendant in a writ of summons for the recovery of land has obtained leave to appear and defend, and appears accordingly, he must forthwith give notice of such appearance to the plaintiff's solicitor, or to the plaintiff if he sues in person (/). (4.) On entering a con- ditional appearance. After judgment the defendant cannot appear without leave. Appear- The order may be obtained on petition of course if the plaintiff an ° e afte 5 * * * judgment. consents ; if not, notice of motion or a summons must be served on him ; and it will only be granted on the defendant submitting to be bound by the judgment and proceedings already had. A copy of the order, when entered, should be served on the solicitors of the other defendants, and on the plaintiff's solicitor, if made on petition. On production of the order to the Master of the Supreme Court an appearance may be entered in the usual way (g). If the defendant desires to object to the regularity of the Condi- proceeding by which the plaintiff has sought to compel his tl0nal a P" appearance, he must enter a conditional appearance (h) ; as the proceedings in an action are not void for irregularity unless the Court or a judge shall so direct, but may be set aside, amended, or otherwise dealt with as the Court or judge shall think fit (i). An ordinary appearance operates as a waiver of the objec- tion (&). The conditional appearance is entered with the Kegistrar, and an order is necessary. The order is obtained on an ex parte motion, or on petition of course ; but the defendant must consent to submit to any process which may be issued against him on such appearance. The appearance is entered by the defendant's solicitor attending at the entering seat in (c) Smith v. Dobbin, 3 Ex. D. (g) Dan. Pr. 139, 140. 338. (A) Id. 459. {d) If within the jurisdiction, (i) Ord. LIX. See Section 2 of eight days after service of the writ, this Chapter, inclusive of day of service. (*) Oidton v. Raddiffe, 9 C. P. (e) Ord. XII. t. 15. 189 ; Preston v. Lamont, 1 Ex. D. (/) Ord. XII. r. 20. 361. 42 ORDINARY PROCEEDINGS IN AN ACTION. Limitation of defence in action to recover land. Appear- ance as landlord. Applica- tion for leave to appear in action to recover land. the Eegistrar's office, producing the order,, and signing the entry thereof (I). Any person appearing to a writ of summons for the recovery of land, may limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance or in a notice intitled in the cause, and signed by him or his solicitor ; such notice to be served within four days after appearance ; and an appearance where the defence is not so limited will be deemed an appearance to defend for the whole (m). A person appear- ing to defend an action for the recovery of land as landlord in respect of property whereof he is in possession only by his tenant, must state in his appearance that he appears as land- lord (n). Any person not named as a defendant in a writ of summons for the recovery of land, may, by leave of the Court or judge, appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or his tenant (o). The application for leave is ex parte, unless judgment has been signed against the defendant named in the writ, when it must be by motion or summons on notice ( p). Effect of noncom- pliance with rules. Condi- tional ap- pearance. When ap- plication to be made. Order for service out of juris- diction. (2.) Application to set aside ilie Writ or Service tliereof (q). Noncompliance with any of the Eules of Court does not render the proceedings in the action void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or judge shall think fit (r). Before making the application a conditional appearance must be entered ; as an ordinary appear- ance operates as a waiver of the objection («). The application should be made as soon as possible after entering the conditional appearance, and before taking any fresh step. If a defendant objects to an order for leave to serve a writ out of the juris- diction as wrongly granted, he should apply under Ord. LIX. to have it set aside ; he cannot raise the objection by his (I) Dan. Pr. 460. (m) Ord. XII. r. 21. (n) Ord. XII. r. 19. (o) Ord. XII. r. 18. (p) Chitty's Forms, 555, As to notice of appearance, see p. 40. (j) For forms, see Daniell's Forms, 3rd ed. 155—159. (r) Ord. LIX. («) See p. 41. PKOCEEDINGS BY DEFENDANT BEFOEE PLEADINGS. 43 defence (t). Where an order was made for leave to serve a foreigner out of the jurisdiction with a writ of summons, the order and service were set aside. The proper way is to give notice of the writ (u). The application under Ord. LIX. must Affidavit. be supported by affidavit. (3.) Interpleader (x). By Ord. I. r. 2, it is provided with respect to interpleader, Former that the procedure and practice used by Courts of Common Law extended under the Interpleader Acts, 1 & 2 Will. 4, c. 58, and 23 & to High 24 Vict. c. 126, Bhall apply to all actions and all the divisions of the High Court of Justice ; and that the application by a Tim e for defendant shall be made at any time after being served with t j on the writ of summons and before delivering a defence. A sheriff interpleads as soon as he receives notice of the adverse claim. By 1 & 2 Will. 4, c. 58, it is enacted that upon appli- 1 & 2 cation by or on behalf of any defendant by affidavit or other- 5 j_ ' wise, showing that sucb defendant does not claim any interest in the subject matter of the suit, but that the right thereto is claimed by or supposed to belong to some third person who has sued or is expected to sue for the same, and that sucb defendant does not in any manner collude with sucb third party, but is ready to bring into Court or to pay or dispose, of the subject matter of the action in sucb manner as the Court or any judge thereof may order or direct, t he Co urJ; or a judge may make orders calling upon such third party to appear, and to state the nature and particulars of his claim, and to maintain or relinquish his claim, and may hear the allegations as well of such third party as of the plaintiff, and in the meantime may stay the proceedings in such action, and finally may order the third party to make himself defendant in the same or some other action, or to proceed to trial on one or more issue or issues, and may also direct which of the parties shall be plaintiff or defendant in such trial, of, with the consent of the plaintiff and such third party, their counsel or attorneys, the Court or judge may dispose of the merits of their claims, (t) Preston v. Lament, 1 Ex. D. 10 Ch. D. 550 ; and see Beddington 361. v. Beddington, 1 P. D. 426. (m) Westmanv. Abtiebolaget Snick- (x) For forms, see Daniell's Forms, arefabrik, 1 Ex. D. 237 ; Be Howard, 3rd ed. 161—163. 44 ORDINARY PROCEEDINGS IN AN ACTION. and determine the same in a summary manner, and make such other orders therein as to costs, and all other matters, as may- appear to be just and reasonable (y). If such third party shall not appear upon such order to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any order to be made after appearance, the Court or judge may declare such third party, and all persons claiming by, from, or under him, to be for ever barred from prosecuting his claim against the original defendant ; saving the right or claim of such third party against the plaintiff (z). If, upon applica- tion to a judge, in the first instance, or in any later stage of the proceedings, he shall think the matter more fit for the decision of the Court, he may refer the matter to the Court, and the Court shall and may hear and dispose of the same in the same manner as if the proceeding had originally commenced by rule of Court, instead of the order of a judge (a). 23 & 24 By 23 & 24 Vict. c. 126, the powers conferred by 1 & 2 Vi ^- Will. 4, c. 58, may be exercised though the titles of the claimants to the property in question have not a common origin, but are adverse to and independent of each other (6). The Court or judge may, upon the order to appear, wherever from the smallness of the amount in dispute, or of the value of the goods, it appears desirable and right so to do, at the request o f either party , dispose of the merits of the respective claims of the parties, and determine the same in a summary manner (c). Where the question is one of law, and the facts are not in dis- pute, the judge may decide the question without directing an action or issue, or he may order a special case to be stated for the opinion of the Court (d). The judgment in any action or issue directed in any interpleader proceedings, and the decision of the Court or a judge in a summary manner are final and Appeal. conclusive (e). It has, however, been held that an appeal lies to the Court of Appeal under section 19 of the Judicature Act, 1873, from a judgment in an interpleader issue entered on a motion for judgment (f); but that a summary decision under {y) Sect. 1. (d) Sect. 15. (z) Sect. 3. (e) Sect. 17. (a) Sect. 5. (/) Witt v. Parker, 25 W. R. (b) Sect. 12. 518. (c) Sect. 14. PROCEEDINGS BY DEFENDANT BEFORE PLEADINGS. 45 section 14 of 23 & 24 Vict. c. 126, is final, and no right of appeal can be given even with consent (g). An interpleader order may be made even if one of the Damages, claimants claims damages in addition to the subject matter of the common claim (A). The interpleader costs are a first Costs, charge on the property in dispute (i). It would seem that a District Kegistrar has the same juris- District diction in interpleader matters as a judge at chambers exce pt re S lstrar - where all parties concerned consent to a final determination ot the question in dispute without a jury or special case, and except where the sum in dispute is less than £50, and one of the parties desires such a determination. . In such cases the question must be determined by the judge, unless the parties agree to refer it to the District Eegistrar (k). (4.) Removal of the Action from a District Registry to London (I). Where an action is commenced in a district registry and the In what sole defendant appears, or all the defendants appear in the cases- district registry, or if all the defendants who appear appear in the district registry, any defendant may remove the action from the district registry as of right in the cases and within the times following : — (1.) Where the writ is specially indorsed under Ord. III. r. 6, and the plaintiff does not within four days after the appearance of such defendant give notice of an applica- tion for an order against him under Ord. XIV. : then such defendant may remove the action as of right at any time after the expiration of such four days, and before deliver- ing a defence, and before the expiration of the time for doing so. (2.) Where the writ is specially indorsed and the plain- tiff has made such application as in the last paragraph mentioned, and the defendant has obtained leave to defend in manner provided by Ord. XIV. : then such defendant ig) Dodds v. Shepherd, 1 Ex. D. (k) Ord. XXXV. r. 4 ; and Ord. 75. LIV. i'. 2, as amended by Rule 4 of (h) Atteribarough v. London and Nov., 1878. St. Katharine Docks Co., 3 C. P. D. (I) For form of notice, see Daniell's 450. Forms, 3rd ed. 163. W Id. 46 ORDINARY PROCEEDINGS IN AN ACTION. Notice of removal. Power of Court or judge. may remove the action as of right at any time after the order giving him leave to defend, and before deliver- ing a defence, and before the expiration of the time for doing so. (3.) Where the writ is not specially indorsed any defendant may remove the action as of right at any time after appearance, and before delivering a defence, and before the expiration of the time for doing so (m). Any defendant desirous so to remove an action as of right may do so by serving upon the other parties to the action, and delivering to the district registrar, a notice, signed by himself or his solicitor, to the effect that he desires the action to be removed to London, and the action will be removed accord- ingly ; but if the Court or a judge shall be satisfied that the defendant giving such notice is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such Court or judge may order that the action may proceed in the district registry notwithstanding such notice (n). (5.) Payment into Court (o). When to be made. Must be pleaded. Notice to plaintiff. Where cause of action denied. Where any action is brought to recover a debt or damages, any defendant may at any time after service of the writ, and before or at the time of delivering his defence, or, by leave of the Court or a judge, at any later time, pay into Court a sum of money by way of satisfaction or amends. Payment into Court must be pleaded in the defence, and the claim or cause of action in respect of which such payment is made must be specified therein ( p). Such sum must be paid to the proper officer, who will give a receipt for the same. If such payment be made before delivering the defence, the defendant must thereupon serve upon the plaintiff a notice that he has paid in such money, and in respect of what claim (q). As a general rule payment into Court may be pleaded together with defences (m) Ord. XII. r. 4 ; Ord. XXXV. f. 11. (») Ord. XXXV. r. 12. (o) For forms, see Daniell's Forms, 3rd ed, 164, 165. (jp) Ord. XXX. r. 1. (?) Ord. XXX. r. 2. As to plain- tiff's proceedings where money paid in, see Chap. V. Sect. 4. PROCEEDINGS BY DEFENDANT BEFORE PLEADINGS. 47 denying the existence of a cause of action (r). Money cannot District be paid into Court in a district registry (s). registry. The form of request for directions to the Bank of England to Payment receive the money can be obtained at the Chancery Pay Office. ln ° an ' The reference to the record must be authenticated by the seal of the Master of the Supreme Court (t). The request is then left at the Chancery Pay Office, and the directions to the Bank will be ready after two or three clear days. The directions and money must then be taken to the Bank, and the money paid in. The cashier at the bank will give a receipt, but the receipt of the proper officer referred to in Ord. XXX. r. 2, is probably the certificate of the Chancery Ifeymaster, of which an office copy may be obtained (m). (6.) Obtaining Disclosure from Plaintiff's Solicitor (x). Everysolicitor whose name is indorsed on any writ of summons Demand by must on demand in writing made by or on behalf of any defendant, defendant who has been served therewith or has appeared there- to, declare forthwith whether such writ has been issued by him or with his authority or privity ; and if such solicitor shall declare that the writ was not issued by him or with his authority or privity, all proceedings upon the same will there- upon be stayed, and no further proceedings may be taken thereupon without leave of the Court or a judge (y). (7.) Proceedings to bind a Person not a Party to the Action (z). "Where a defendant is or claims to be entitled to contribution Order to or indemnity, or any other remedy or relief over against any ^8^^,° other person, or where from any other cause it appears to the as against Court or a judge that a question in the action should be de- termined not only as between the plaintiff and defendant, but as between the plaintiff, defendant, and any other person, or between any or either of them, the Court or a judge may, on (r) Berdan v. Greenwood, 3 Ex. D. (u) Daniell's Forms, 3rd ed. 164. 251. (») For forms, see Daniell's Forms, («) Hutchinson v. Ward, 6 Ch. D. 3rd ed. 165, 166. 692 ; McDonald v. Foster, 25 W. R. (y) Ord. VII. r. 1. 602. (z) For forms, see Daniell's Forms, («) Chancery Funds Cons. Rules 3rd ed. 168—174. 1874, r. 26. third persons. 48 ORDINARY PROCEEDINGS IN AN ACTION. Notice to person not a party. How co- defendant bound. When leave ■will be refused. Person brought in cannot bring in another. Costs. Affidavit. notice being given to such, last-mentioned person, make such order as may be proper for having the question so deter- mined (a). Where a defendant claims to be entitled to a contribution, indemnity, or other remedy or relief over against any person not a party to the action, he may, by leave of the Court or a judge, issue a notice to that effect, stamped with the seal with which writs of summons are sealed. A copy of such notice must be filed with the proper officer and served on such person according to the rules relating to the service of writs of summons. The notice must state the nature and grounds of the claim and must, unless otherwise ordered by the Court or a judge, be served within the time limited for delivering his statement of defence. A copy of the statement of claim, or if none, then a copy of the writ must be served with the notice (6). If the person against whom relief is sought is a defendant to the action the co-defendant seeking relief binds him by deliver- ing to him a copy of his statement of defence, and not by notice as above mentioned (c). Where the defendant cannot, from the nature of the case, become entitled to any remedy or relief over against the person whom it is wished to serve, leave will be refused (d ). If, however, any one material question in the action is a material question between the defendant and a third person it is sufficient (e). The power to order notice to be served will not be exercised if it will delay or prejudice the plaintiff (/). A person brought in as a defendant has no right to bring in as a defendant another person against whom he may have a claim (gr). If judgment is given for the defendant a third party brought in is not en- titled to costs as against the plaintiff (A). The application for leave to serve notice should be supported by affidavit. Notice (a) Ord. XVI. r. 17. Sc v. Marner, W. N. (1878), 211. (6) Ord. XVI. i. 18. (c) See Shephard v. Beane, 2 Ch. D. 223 ; Furness v. Sooth, 4 Ch. D. 586. (d) Horwdl v. London Gen. Om. Co., 2 Ex. D. 365. (e) Swansea Shipping Co. v. Dun- can, 1 Q. B. D. 644 ; Benecke v. Frost, 1 Q. B. D. 419. (/) Bower v. Hartley, 1 Q. B. D. 652 ; Associated Home Co. v. Which- cord, 8 Ch. D. 457. (SO Walker v. Balfow, 26 W. K. 511 ; but see Fowler v. Knoop Bk. As., 36 L. T. 219. (A) WiUiams v. S. E. JR. Co., 26 W. R. 352. PROCEEDINGS BY DEFENDANT BEFORE PLEADINGS. 49 \ may be served out of the jurisdiction (i). The fee on issuing .Servicaout the notice is 2s. 6d., payable by a stamp impressed on or <*jp is - adhesive to the notice (&). V *Fees If a person not a party to the action, who is served with the Appear- notice, desires to dispute the plaintiff's claim in the action as an . ce b y against the defendant on whose behalf the notice has been given, par ty. he must enter an appearance in the action within eight days from the service of the notice. In default of his so doing he will be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise. But a person so served and failing to appear within the said period of eight days may t,pply to the Court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the Court or a judge shall think fit (I). An affidavit should be made explaining the delay. If the person served is resident out of the jurisdiction -the order will limit the time for appearance (m). The Kules do not enable a defendant to obtain any actual Defendant present relief against the person served with notice, but only ^™™. secure a binding decision with a view to future relief in an sent relief, action to be brought by the defendant (»). If the person served intends to apply to have the notice set Condi- aside, he should enter a conditional appearance ; as an ordinary ™~JJ?" appearance might operate as a waiver of his objection (o). The Affidavit, grounds of application should be shown by affidavit. A sufficient ground would be that the bringing in of a third party will delay or prejudice the plaintiff ( p) ; or that the defendant giving the notice cannot, from the nature of the case, become entitled to the remedy or relief sought against such third party (q). If the person served appears pursuant to the notice, the Applica- party giving the notice may apply to the Court or a judge for directions. directions as to the mode of having the question in the action (i) Swansea Shipping Co. v. Dun- see Treleven v. Bray, 45 L. J. Ch. can, 1 Q. B. D. 644. 113; Padmch v.Scott, 2 Ch. D. 736 ; (£) Ord. as to Court Fees, Oct., Warner v. Twining, 24 W. K. 536. 1875, Sched. ; Ord. as to Fees, April, (o) As to conditional appearance, 1876, Sched. see Section 1 of this Chapter. (Z) Ord. XVI. r. 20. (p) Bower r. Hartley, 1 Q. B. D. (m.) Swansea Shipping Co. v. Dun- 652. can, 1 Q. B. D. 644. (j) Horwett v. London Qen. Om. (») See Wilson, 2nd ed. p. 182 ; and Co. , 2 Ex. D. 365. E ORDINARY PROCEEDINGS IN AN ACTION. i. determined; and the Court or judge, upon the hearing of such y application, may, if it shall appear desirable so to do, give the *< person so served liberty to defend the action upon such terms ' as may seem just, and may direct such pleadings to be de- livered, or such amendments in any pleadings to be made, and generally may direct such proceedings to be taken, and give such directions as to the Court or judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the person so served shall be bound or made liable by the decision of the question (r). (»■) Ord. XVI. r. 21. CHAPTER IV. PROCEEDINGS IN CASE OF NON-APPEARANCE. (1.) The Affidavit of Service (a). Where any defendant fails to appear to a -writ of summons, Affidavit and the plaintiff is desirous of proceeding upon default of ap- oi se ;™ e pearance, he must, before taking such proceeding upon default, before pro- file an affidavit of service, or of notice in lieu of service, as the needing for default. case may be (b). The affidavit of service, where the service has been personal, must mention the day on which the indorsement of service was made (c). (2.) Plaintiff's Proceedings in an Action for a Debt or Liquidated Demand (d). In case of non-appearance by the defendant where the writ is Where writ specially indorsed, under Ord. III. r. 6, the plaintiff may sign ?P») Chitty's Forms, 10th ed. 510. (n) Ord. XIX. rr. 6, 29 ; Ord. LIII. r. 7 ; Dymond v. Croft, 3 Ch. D. 512 ; Morton v. Miller, 3 Ch. D. 516. (o) Chitty's Forms, 534, ... (J). PROCEEDINGS IN CASE OF NON-APPEARANCE. 57 purpose. The summons should be supported by an affidavit of the special facts. All that the plaintiff has to prove, or that the defendant Proof will be permitted to controvert upon the execution of the writ, re 1 uned - is the amount of the ^images ; the cause of action stated in the indorsement of claim on the writ of summons, and the right to some damages in respect of it, are admitted by the defendant by his permitting judgment by default (p). The Witnesses. witnesses are summoned and the evidence is taken in the same Evidence. manner as on the trial of an action (q). The return is indorsed on the writ. The inquisition is Inqdsi- engrossed on parchment, and signed and sealed in the name of the sheriff and by the jurors. At the expiration of four days from the return-day, the writ and inquisition may be obtained from the sheriffs office (r). The sheriff or other officer before whom the writ was Certificate executed may prevent the entering of judgment immediately, e „^^f™ if he certify on the writ that judgment ought not to be entered judgment. till the defendant shall have had an opportunity of applying to the Court to get the execution of the writ set aside. If the sheriff has not so certified, and the defendant cannot apply to the Court to set aside the execution on account of there being no sitting of the Court to which the application should be made, he may apply to a judge to stay the proceedings in order that the application may be made to the Court (*). And if the Application order is refused, and final judgment entered and execution ?° Be * .^. ° issued, the Court has power to vacate the judgment entered, to stay or set aside the execution and grant a new writ of in- quiry (t). The application to set aside the inquisition and have a new inquiry might formerly have been made within four days after the return-day of the writ, or, it seems, at any time before final judgment. It was looked upon as on the same footing with an application for a new trial (u). If it should be regarded in the same light now, and there appears no reason why it should not, it should be made within the time limited by Ord. XXXIX. r. la, for making applications for new trials (v). (y) Chitty's Arch. 12th ed. 1001 (*) Id. s. 4 ; and see Chitty's Arch. -3. 12th ed. 1003, 4. (q) See Chapter VTII. Section 3. («) Chitty's Arch. 12th ed. 1004. (r) Chitty's Arch. 12th ed. 1003. (v) As to new trials generally, see (s) 1 Will. 4, c. 7, ». 1. Chapter IX. Section 9. 58 ORDINARY PROCEEDINGS IN AN ACTION. Entry of judgment. Where the writ of inquiry was executed in vacation and the sheriff has certified under section 1 of 1 Will. 4, c. 7, as above mentioned, judgment cannot be entered until after the first day in the next sittings on which the Court to which the application to set aside the execution of the v/rit should be made has actually sat to hear motions. And, of course, if the sheriff has not so certified, but a judge's order has been obtained under section 4, that judgment be not entered until a day named in such order, the judgment cannot be entered before that day. On entering final judgment, the interlocutory judgment, sheriff's return and inquisition, and two forms of final judg- ment must be produced (w). Judgment cannot be entered for want of ap- pearance. Filing statement of claim. Default in delivering defence or demurrer. Order to ascertain like trial of a ques- tion in an action. Where some of (4.) Plaintiff's Proceedings in an Action for a Debt or Liquidated Demand, and also for the Detention of Goods and Pecuniary Damages or Pecuniary Damages only. Where the action is for a debt or liquidated demand, and also for the detention of goods and pecuniary damages or pecuniary damages only, judgment cannot be entered for default of appear- ance, but the plaintiff must file an affidavit of service, and then proceed as if the defendant or all the defendants, as the case may be, had appeared (x). The statement of claim, in the case of any defendant who has not appeared, may be filed with the Master of the Supreme Court, or with the District Eegistrar, as the case may be (y). If the defendant or defendants Failing to appear, do not, within the time allowed for delivering a defence or demurrer, appear and deliver a defence or demurrer, the plaintiff may, if the defendant (if only one) or all the defendants (if more than one) so make default, enter final judgment for the debt or liquidated demand, and interlocutory judgment for the value of the goods and damages, or damages only, as the case may be. But the Court or a judge may order that instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way in which any question arising in an action may be tried (z). If, however, there are several defendants and one or some only make such default, the plain- tiff may either set down the action at once on motion for judg- (mi) For practice on entering final judgment, see Chapter X. Section 2. (x) Ord. XIII. r. 9. (y) Ord. XIX. rr. 6, 29. (2) Ord. XXIX. rr. 4, 6. PROCEEDINGS IN CASE OF NON-APPEARANCE. 59 ment against the defendant or defendants so making default, several or may set it down against him or them at the time when it is d ™ n ° ant3 entered for trial or set down on motion for judgment against fault. the other defendants (a). (5.) Plaintiff's Proceedings in an Action for the Recovery of Land only (6). In case no appearance is entered in an action for the recovery if no a p- of land, within the time limited for appearance, or if an appear- pearance, ance is entered hut the defence is limited to part only, the limited. plaintiff may enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which the defence does not apply (c). This judgment does not carry costs. If there are several de- Several fendants, and one or some appear, and another or others do defendanta ' not, the plaintiff cannot enter judgment against them in respect of land for which any other defendant defends, but must file an affidavit of service, and the action may then proceed as if all the defendants had appeared (d). The statement of claim, Filing in the case of any defendant who has not appeared, may be s * atel ? ent filed with the Master of the Supreme Court, or with the District Registrar, as the case may be (e). If the defendant or defen- Default in dants who have not appeared do not, within the time allowed delivering c± defence or for delivering a defence or demurrer, appear and deliver a demurrer. defence or demurrer, the plaintiff cannot enter judgment against them in respect of land for which any other defendant defends, but should set down the action on motion for judg- ment against such defendant or defendants so making default, at the same time when it is entered for trial or set down on motion for judgment against the other defendants (/). In Filing case of any defendant who fails to appear, the notice of motion notl ? e of •> Jrr motion. may be filed with the Master of the Supreme Court, or with the District Registrar, as the case may be ; or if such defendant was duly served with the writ, may be served upon him {g). (a) Ord. XXIX. i. 11. (/) Ord. XXIX. r. 11. (o) For forms, see Daniell's Forms, (g) Ord. XIX. rr. 6, 29 ; Ord. 3rd ed. 202. LIII. r. 7 ; Dymond v. Croft, 3 Ch. (c) Ord. XIII. r. 7. C. 512 ; Morton v. Miller, 3 Ch. D. (d) Ord. XIII. i'. 9. 516. (e) Ord. XIX. rr. 6, 29. 60 ORDINARY PROCEEDINGS IN AN ACTION. Entry of On entering judgment the notice or notices (if any) limiting ju gmen . ^ ,j e f ence mugt ^ e p ro( j uce( j i n addition to the other necessary documents. If the defence is limited by the appearance, and judgment be entered in London, a certificate of the fact from the Master of the Supreme Court must be produced (h). (6.) Plaintiff's Proceedings in an Action for the Recovery of Land and for Mesne Profits or Arrears of Rent in respect of the premises claimed, or for Damages for the breach of any Contract under which the premises are lield (i). n-ap- Where the plaintiff has indorsed a claim for mesne profits, or arrears of rent in respect of the premises claimed, or any part thereof, or damages for the breach of any contract under which the premises are held, upon a writ for the recovery of land, he may, in case the defendant or all the defendants, as the case may be, fail to appear within the time limited, enter judgment for the land as before mentioned (/). If the other part of his claim is for a debt or liquidated demand he may proceed under Ord. XIII. r. 5 (Je) ; or if for damages he may proceed under Several Ord. XIII. r. 6 (I). If there are several defendants, and some appear and others do not, the plaintiff must proceed under Ord. XIII. r. 9, as mentioned in the preceding section of this chapter ; except that in case the defendants who have not appeared do not, within the time allowed for delivering a defence or demurrer, appear and deliver a defence or demurrer, final judgment may be entered against them for the arrears of rent, and execution may be issued thereon, without prejudice to the right to proceed against the other defendants (m) ; and interlocutory judgment may be entered against such defen- dants not appearing as aforesaid, as to the claim for mesne profits, or damages for breach of contract, and the action may proceed against the other defendants, and the damages to be recovered from the defendants so making default will, unless the Court or a judge otherwise direct, be assessed at the same time with the trial of the action or issues against the other defendants (»). (A) As to entering judgment, see this Chapter. Chapter X. Section 2. (jfc) See p. 53. (i) For forms, see Daniell's Forms, (I) See p. 54, Ord. XIII. i. 8 3rd ed. 203—205. s ( m ) Ord. XXIX. rr. 3, 8. (;) See the preceding section of (n) Ord. XXIX. rr. 5 8. defendants. for order. PROCEEDINGS IN CASE OF NON-APPEARANCE. 61 Judgment for recovery of arrears of rent carries costs. On Entry of entering judgment in London the Master of the Supreme Court's J ud 6 ment - certificate of the filing of the particulars of the plaintiff's claim must be produced in addition to the other necessary documents (o). (7.) Plaintiff's Proceedings where the Writ is indorsed with a Claim for an Account under Ord. III. r. 8 (p). In default of appearance to a summons indorsed with a claim In what for an ordinary account, as, for instance, in the case of a ^ju j, e partnership or executorship or ordinary trust account, where made, the plaintiff, in the first instance, desires to have an account taken, and after appearance unless the defendant, by affidavit or otherwise, satisfy the Court or a judge that there is some preliminary question to be tried, an order for the account claimed, with all directions formerly usual in the Court of Chancery in similar cases, will be forthwith made (q). The Application application must be made by summons, and be supported by an affidavit filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account ; and may be made at any time after the time for entering an appearance has expired (r). In case of non-appearance an affidavit of service must be filed (s), and if the action is proceeding in London the Master of the Supreme Court's certificate that no appearance has been entered must be procured. If the defendant was duly served with the writ, the summons may be served upon him although he has not appeared j or it may be filed with the Master of the Supreme Court, or with the District Kegistrar, as the case may be (t). At the Eolls, where the account claimed is an executor- ship or administration account, the usual administration decree will be made, and not merely an order for accounts (m). And this course has since been adopted at the other chambers. (o) As to entering judgment, see (t) Ord. LOT. r. 7 ; Ord. XIX. Chapter X. Section 2. rr. 6, 29 ; Dymond v. Croft, 3 Ch. (y) For form of summons, see D. 512 ; Morton v. Miller, 3 Ch. D. Daniell's Forms, 3rd ed. 206. 516. (q) Ord. III. r. 8 ; Ord. XV. («) Daniell's Forms, 3rd ed. 206, r . l. referring to Pratt v. Brovme, M. K. (r) Ord. XV. r. 2. at Chambers, 17th Dec, 1875. («) Ord. XIII. r. 2. 62 ORDINARY PROCEEDINGS IN AN ACTION. Non-ap- pearance. Filing statement of claim. Motion for judgment. (8.) Plaintiff's Proceedings in Actions assigned to the Chancery Division by Section 34 of the Judicature Act, 1873, where no Order for an Account is made under Ord. XV. In actions assigned by the 34th section of the Judicature Act, 1873, to the Chancery Division, and where the plaintiff has not obtained an order for an account as in the preceding section of this chapter mentioned, in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service, the action may proceed as if such party had appeared (v). The statement of claim, in the case of any defendant who has not appeared, may be filed with the Master of the Supreme Court, or with the District Registrar, as the case may be (w). If the defen- dant or defendants who have not appeared do not, within the time allowed for delivering a defence or demurrer, appear and deliver a defence or demurrer, the plaintiff may, if all the defendants make default, set down the action on motion for judgment (a;) ; but in case one or some only of the defendants make default, the plaintiff may either set down the action at once on motion for judgment against the defendant or defendants so making . default, or may set it down against him or them at the time when it is entered for trial or set down on motion for judgment against the other defendants (y). The notice of motion for judgment against any defendant so making default in appear- ing may be filed with the Master of the Supreme Court, or with the District Registrar, as the case may be, or if such defendant was duly served with the writ, such notice may be served upon him (2). Power of Court or judge. (9.) Defendants Proceedings to set aside a Judgment entered for want of 'appearance (a). Where the plaintiff has signed final judgment in case of non- appearance by the defendant, to a writ of summons specially* indorsed under Ord. III. r. 6, the Court or a judge may set (v) Ord. XIII. 1. 9. (w) Ord. XIX. rr. 6, 29. (as) Ord. XXIX. 1. 10. (y) Ord. XXIX. r. 11. (a) Ord. XIX. rr. 6, 29 ; v. Croft, 3 Ch. D. 512 ; Morton v. Miller, 3 Ch. D. 516; Ord. LIII. r. 7. (a) For forms, see Daniell's Forms, 3rd. ed. 207—209. PROCEEDINGS IN CASE OF NON-APPEARANCE. 63 aside or vary such judgment upon such terms as may seem just (6). Ord. XXIX. r. 14, however, goes farther than this, and provides that any judgment by default, under any of the Rules, may be set aside by the Court or a judge, upon such terms as to costs or otherwise as such Court or judge may think fit. The application is by summons, supported by affidavit, which Application should disclose a good defence on the merits, and explain why ° s ^ e .•„,}„. judgment was allowed to go by default (c). The application ment. should be made without delay, although mere delay will not be a sufficient ground for /efusing it, unless such delay has caused an irreparable injury to the plaintiff (d). As a rule, the application will only be granted upon payment of the plaintiff's costs of the proceedings which it is sought to set aside, and the costs of the application, in addition to such other terms as the Court or judge may think proper. And the defendant may be ordered to pay money into Court, or give security (e). An application to set aside the judgment and for leave to appear and defend, should be made only where the writ of summons is regular, and the defendant admits the jurisdiction of the Court ; where there is an irregularity in the writ itself, or the writ before service ceased to be in force, or the defendant denies the jurisdiction, he should apply to set aside the writ of summons (/). If it is desired to have the judgment set aside on the ground Application of irregularity, an application should be made by motion or to . ?* • , _ summons within a reasonable time and before any fresh step ment for is taken by the applicant after knowledge of the irregularity. J rr ?j> u " The application should be supported by affidavit, and the notice of motion or summons should specify the irregularity complained (6) Ord. XIII. i-. 3. 183, 363. (c) Watt v. Barnett, 3 Q. B. D. (/) Daniell's Forms, 3rd ed. 208. 183, 363. As to setting aside writ, see Chapter (rf) Attwood v. Chichester, 3 Q. B. III. Section 2. D. 722. (g) Chitty's Arch. 12th ed. 987. (e) Watt v. Barnett, 3 Q. B. D. CHAPTER V. PLAINTIFFS PROCEEDINGS BEFORE THE PLEADINGS IN CASE OF APPEARANCE. Where address for service illusory or fictitious. Applica- tion, how made. Applica- tion on any other ground. (1.) Application to Set Aside Appearance (a). If the address for service is illusory or fictitious, the appear- ance may be set aside by the Court or a judge on the applica- tion of the plaintiff (6). The application is made by motion or summons, supported by an affidavit of the facts, after the expiration of the time limited for appearance, and before the plaintiff takes any freBh. step with knowledge of the irregularity. The notice of motion or summons must be served on the defendant or left at his place of residence, if he appears in person, or served upon his solicitor at his place of business if he appears by a soli- citor (c). A similar application may be made if it is sought to set aside the appearance upon any other ground than that the address for service is illusory or fictitious. Service of the notice of motion or summons in this case may be effected in the ordinary way. Affidavit as to no defence. (2.) Application for Liberty to Sign Judgment, notwithstanding Appearance, where the Writ is specially Indorsed under Ord. III. r. 6 (d). Where the defendant appears to a writ of summons specially indorsed under Ord. III. r. 6 (e), the plaintiff may, on affidavit made by himself, or by any other person who can swear posi- es) For forms, see Daniell's Forms, 3rd ed. 210, 211. (6) Ord. XII. r. 9. (c) Cons. Ord. III. rr. 6, i. (d) For forms, see Daniell's Forms, 3rd ed. 212—214. (e) See p. 23. plaintiff's proceedings before pleadings. 65 tively to the debt or cause of action, verifying the cause of action, and stating that in his belief there is no defence to the action, call on the defendant to show cause before the Court or a judge why the plaintiff should not be at liberty to sign final judgment for the amount so indorsed, together with interest, if any, and costs. A copy of the affidavit must accompany the summons or notice of motion. The Court or a judge may Order to thereupon, unless the defendant, by affidavit or otherwise, ment S ~ satisfy the Court or a judge that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, make an order empowering the plaintiff to sign judgment accordingly (/). The applica- tion is to be made by summons returnable not less than two clear days after service (jr). The defendant may show cause against the application by Procedure offering to bring into Court the sum indorsed on the writ, or by y *; e " affidavit. In such affidavit he must state whether the defence he alleges goes to the whole or to part only, and if so, to what part, of the plaintiff's claim. And the judge may if he think fit, order the defendant to attend and be examined upon oath ; or to produce any books or documents or copies of or extracts therefrom (h). The defendant's affidavit may contain hearsay evidence, and it will be sufficient if it shows enough to entitle him to interrogate the plaintiff. It need not show a good de- fence on the merits if it suggests a reasonable defence (i) ; and if it gives reason for thinking that the defendant has a substan- tial defence, he will not be ordered to pay money into Court as a condition of being allowed to defend {J). A judge has a dis- cretionary power to allow the plaintiff to file an affidavit in answer to that of the defendant (k). If it appear that the defence set up by the defendant applies Where only to a part of the plaintiff's claim ; or that any part of his claim is admitted to be due ; the plaintiff will have judgment part only of claim (/) Ord. XIV. t. la. As to the W. R. 362. contents of the affidavit, see Begg v. (f) Runnacles v. Mesquita, 1 Q. Cooper, 40 L. T. 29. B. D. 416 ; Lloyd's Banking Co. v. (g) Ord. XIV. r. 2. It would seem Ogle, 1 Ex. D. 262 ; Beckimgham v. from r. la that the application may Owen, W. N. (1878), 215 ; Thome also be made by notice of motion. v. Steel, Id. (h) Ord. XIV. r. 3. (*) Davis v. Spence, 1 C. P. D. (i) Harrison v. Bottenheim, 26 719. defence exists as to 66 ORDINARY PROCEEDINGS IN AN ACTTON. Joint- defendants. Leave to defend. Entry of judgment. forthwith for such part of his claim as the defence does not apply to or as is admitted to be due, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into Court by the sheriff, the taxa- tion of costs, or otherwise, as the judge may think fit. And the defendant may be allowed to defend as to the residue of the plaintiff's claim (I). If it appears to the judge that any defendant has a good defence to or ought to be permitted to defend the action, and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff will be entitled to enter final judgment against the latter, and issue execution thereon, without pre- judice to his right to proceed with his action against the former (m). Leave to defend may be given unconditionally or subject to such terms as to giving security, or otherwise, as the Court or a judge may think fit (n). On entering judgment the original writ and the order giving leave to enter judgment must be produced (o). When order for account will be made. Applica- tion, how and when to be made. (3.) Proceedings where the Writ is Indorsed with a Claim for an Account under Ord. III. r. 8 (p). After appearance to a summons indorsed with a claim for an ordinary account, as, for instance, in the case of a partnership or executorship or ordinary trust account, where the plaintiff in the first instance desires to have an account taken, unless the defendant, by affidavit or otherwise, satisfy the Court or a judge that there is some preliminary question to be tried, an order for the account claimed, with all directions formerly usual in the Court of Chancery in similar cases, will be forthwith made (g). The application must be made by summons, and be supported by an affidavit filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account ; and may be made at any time after the time for entering an ap- (Z) Ord. XIV. r. 4 ; Flight, 36 L. T. 279 ; Seymour, 4 Ex. D. 80. (m) Ord. XIV. i. 5. (») Ord. XIV. r. 6. Sanmer v. (o) As to entering judgment, see Dennis v. Chapter X. Section 2. {p) For form of summons, see Daniell's Forms, 3rd ed. 206. (?) Ord. III. r. 8 ; Ord. XV. r. 1. PLAINTIFFS PROCEEDINGS BEFORE PLEADINGS. 67 pearance has expired (r). At the Kolls, where the account claimed is an e xecutorship or administration account, the usual administration decree will be made, and not merely an order for accounts (sj. And th lsTcqurse "has since been adopted at the other chambers. (4.) Proceedings where the Defendant has paid Money into Court (t). Money paid into Court by the defendant (u) may, unless Payment otherwise ordered by a judge, be paid out to the plaintiff, or to ?, ut °* his solicitor, on the written authority of the plaintiff ; and no affidavit is necessary to verify the plaintiff's signature to such written authority unless specially required by the officer of the Court (v). Notwithstanding this rule, however, the Chancery- Paymaster will not pay money out of Court without an order (w). The plaintiff, if payment into Court is made before delivering Acceptance a defence, may within four days after receipt of notice of such . s ,™ . ' •> ■> * r paid in in payment, or if such payment is first stated in a defence de- satisfac- livered, then may before reply accept the same in satisfaction tlon- of the causes of action in respect of which it is paid in ; in which case he must give notice to the defendant, and, in case the sum paid in is accepted in satisfaction of the entire cause of action, may tax his costs (x), and in case of non-payment within forty-eight hours, may sign judgment for his costs so taxed (y). On entering judgment the notice of payment in, the notice Entry of of acceptance, and the taxing-master's certificate must be pro- ■ |u gmen ' duced, in addition to the other necessary documents (z). (r) Ord. XV. r. 2. 1874, r. 36. As to obtaining money (a) Daniell's Forms, 3rd ed. 206, out of Court, see Part VI., "Pro- referring to Pratt v. Browne, M. E. ceedings in Pay Office. " at Chambers, 17th Dec. 1875. (x) I.e., if the sum carries costs, (<) For forms, see Daniell's Forms, as to which, see Chapter on Costs, 3rd ed. 214, 215. post, Part VI. («) As to payment into Court by (y) Ord. XXX. r. 4. See Greaves defendant, see Chapter III. Section 5. v\ Fleming, 4 Q. B. D. 226. (») Ord. XXX. r. 3. (z) As to entering judgment, see (to) Chancery Funds Cons. Rules, Chapter X. Section 2. v 2 68 ORDINARY PROCEEDINGS IN AN ACTION. Applica- tion, how made. (5.) Applications for Names of Persons who are Co-Partners in a Defendant Firm (a). Where any two or more persons liable as co-partners are sued in the name of their firm, any party to the action may apply by summons to a judge for a statement of the names of the persons who are co-partners in such firm, to be furnished in such manner and verified on oath or otherwise, as the judge may direct (6). When action pro- ceeds in London. Grounds of application •for order for action to proceed in district registry. (6.) Application that the Action may proceed in the District Registry (c). When the writ is issued out of a district registry, but the defendant or any defendant appears in London, or a defendant who. has appeared in the district registry gives notice of his desire to remove the action to London, the action will usually proceed in London ; but if the Court or a judge is satisfied that any defendant so appearing in London or giving such notice is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such Court or judge may order that the action proceed in the district registry notwithstanding such appearance in London or such notice (d). (a) For form of summons, see Daniell's Forms, 3rd ed. 88. (6) Ord. XVI. r. 10. • (c) For form of notice of motion or summons, see Daniell's Forms, ed. 216. (d) Ord. XII. x. 5 ; Ord. XXXV rr. 11, 12. CHAPTER VI. THE PLEADINGS. (1.) General Regulations. Every pleading must contain as concisely as may be a state- Contents of ment of the material facts on which the party pleading relies, P leadin S s - but not the evidence by which they are to be proved, such statement being divided into paragraphs, numbered consecu- tively, and each paragraph containing, as nearly as may be, a separate allegation. Dates, sums, and numbers must be ex- pressed in figures. Signature of counsel is not necessary (a). It is, however, still the practice in the Chancery Division for counsel to sign the pleadings. Every pleading containing less than ten folios of seventy-two When to be words each (every figure being counted as one word) may be P rinte) Ord. XIX. r. 9. (s) Ord. LVII. t. 6. (as) Ord. XIX. t. 20. 76 ORDINARY PROCEEDINGS IN AN ACTION. Denial of right of party to claim in repre- sentative capacity. Costs of improper denial or non-ad- mission. Action to recover land. Plea in abatement. Not guilty by statute. that the allegations of fact in the statement of claim were admitted (y). If the defendant wishes to deny the right of any other party to claim as executor, or as trustee whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he must deny the same specifically (z). Where the Court or a judge shall be of opinion that any allegations of fact denied or not admitted by the defence ought to have been admitted, the Court may make such order as may be just with respect to any extra costs occasioned by their having been denied or not admitted (a). No defendant in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases before mentioned, it will be sufficient to state by way of defence that he is so in possession. And he may nevertheless rely upon any ground of defence which he can prove, except as before mentioned (6). No plea or defence may be pleaded in abatement (c). The defendant may still plead not guilty "by statute ; " and every defence of not guilty by statute has the same effect as a plea of not guilty by statute under the old practice (d). The defend- ant must in such case insert in the margin of the defence the words " By Statute," adding the year, chapter, and section of any statutes on which he relies, and stating whether they are public or not (e). (y) Harris v. Gamble, 7 Ch. D. 877. Also see Jenkins v. Domes, 1 Ch. D. 696 ; Byrd v. Nunn, 5 Ch. D. 781, 7 Ch. D. 284. (z) Ord. XIX. r. 11. (o) Ord. XXII. *-. 4. (6) Ord. XIX. r. 15. (c) Ord. XIX. r. 13. A plea in abatement in a Common Law action was a plea which, without disputing the cause of action alleged, stated facts showing that the plaintiff could not properly recover in the action as brought. Such a plea was generally founded upon some personal dis- ability of parties, or upon defect of parties, Wilson, 2nd ed. 197. (d) Ord. XIX. r. 16. The defence of not guilty by statute puts in issue not only the defences peculiar to the statute, but also all that would have arisen at Common Law. (c) R. a. T. T. 1853, r. 21. THE PLEADINGS. 77 (4.) Set-off and Counter-claim (/). [See also Section 1 of this Chapter.'] A counter-claim is a pleading -whereby a defendant claims Definition some remedy or relief, either against the plaintiff alone, or °[ a j™ nter " against the plaintiff together with some other person or persons, whether already parties to the action or not (g). By the Judicature Act, 1873 (A), it is enacted that the High Power of Court of Justice and the Court of Appeal, and every judge c?l eine d thereof, shall have power to grant to any defendant in respect judges of any equitable estate or right, or other matter of equity, and to^hte also in respect of any legal estate, right, or title claimed or claimed by asserted by him, all such relief against any plaintiff or pe- detendants titioner as such defendant shall have properly claimed by his pleading, and as the said Courts respectively, or any judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner ; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the cause or matter, or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of Court, or any order of the Court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose ; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim, as if he had been duly served in the ordinary way by such defendant. The Kules of Court provide that a defendant in an action may Effect of set-off, or set up, by way of counter-claim against the claims of set-off or the plaintiff, any right or claim, whether such set-off or counter- claim 01 " claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross (/) For forms, see Daniell's Forms, Harris v. Gamble, 6 Ch. D. 748; 3rded. 257—267. Turner v. Hednesford Gas Co., 3 (g) Blackburn, J., in Treleaven v. Ex. D. 145. Bray, 45 L. J. Ch. 115. And see (A) 36 & 37 Viet. o. 66, s. 24, Warner v. Twining, 24 W. R. 536 ; sub-s. 3. Furness v. Booth, 4 Ch. D. 586; 78 ORDINARY PROCEEDINGS IN AN ACTION. action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim (i). These provisions are aimed against a multiplicity of suits, and the construction to be put upon them stiould be as wide as possible (j), A defendant may set up any number of counter- claims, subject to the power of the Court to exclude them (k). Where several plaintiffs sue for a joint claim, the defendant may set up a separate counter-claim, sounding in damages, against each plaintiff individually (I). The defendant may set up a counter-claim for the non-performance of the contract, which is the subject of the action, by the plaintiff, and join as party to the counter-claim the plaintiff's surety for due performance (m). In an action against a married woman in respect of her separate estate, it was held that her husband, who was merely a formal defendant, could set up a counter- claim not in respect of the separate estate (n). The counter- claim need not be for an amount equal to that of the plaintiff's claim (o). The defendant, by setting up a counter-claim, be- comes in the position of a plaintiff in a cross action ( p) ; and if resident out of the jurisdiction will be ordered to give security for costs, and on his failing to do so the counter-claim will be dismissed (q). Where any defendant seeks to rely upon any facts as support- ing a right of set-off or counter-claim, he must, in his statement of defence, state specifically that he does so by way of set-off or counter-claim (r). It is not, however, necessary that the set-off or counter-claim should be separated by a marked line from the defence, or that the paragraphs in which the facts relied upon as giving the right to set-off or counter-claim are stated, should be differently numbered ; it is only necessary that there should be a specific statement of the facts relied on (*). Nature of The counter-claim must be as brief as the nature of the case Facts in support must lie ' stated spe cifically. (t) Ord. XIX. r. 3. {j) Brett, L. J., in Turner v. Hednesford Gas Co., 3 Ex. D. 145. (1c) Naylor v. Farrer, 26 W. R. 809. (V) Manchester, ) Ord. LVII. rr. 4, 6, 6. (o) Hodges v. Hodges, 2Ch.D.112. (r) Ord. XXVIII. r. 6. THE PLEADINGS. 85 to must, unless the Court otherwise order, pay to the demur- ring party the costs of the demurrer ; and where a demurrer is overruled the demurring party must pay to the opposite party the costs occasioned by the demurrer, unless the Court shall otherwise direct (*). If a demurrer to the whole of a statement of claim be allowed, the plaintiff, subject to the power of the Court to * allow the statement of claim to be amended must pay to the demurring defendant the costs of the action, unless the Court shall otherwise order (t). Where a demurrer to any pleading or part of a pleading, not Effect of being a demurrer to the whole of a statement of claim, is j^™ uner allowed, then (subject to the power of the Court to allow an allowed. amendment) the matter demurred to will as between the par- ties to the demurrer be deemed to be struck out of the plead- ings, and the rights of the parties will be the same as if it had not been pleaded (w). Where a demurrer is overruled the Court may make such Effect of order and upon such terms as to the Court shall seem right for J enlurrer r ° being over- allowing the demurring party to raise by pleading any case he ruled. may be desirous to set up in opposition to the matter demurred to (v). When a demurrer is overruled, the party demurring is entitled to plead to the merits upon compensating the plaintiff in costs and expediting the proceedings (w). If a demurrer to t he whole of the statement of claim be overruled and leave to'jjlead be not given, it would seem that theplamtiff may proceed to obtain judgment by default under Ord. XXIX. (x) ; but if it be held that a defendant who has put in a demurrer alone, which has been overruled, has not " made default in delivering a defence or demurrer " within Ord. XXIX., then the plaintiff should move for judgment under Ord XL. r. 1 (y). If the demurrer be to part only of the state- ment of claim and the defendant has pleaded to the other part, the cause of action demurred to will be deemed to be ad- mitted (z), and the plaintiff may move under Ord. XL. r. 11 (a), as upon an admisssion of fact in the pleadings; or he may, (») Ord. XXVIII. rr. 8, 11. 275. (<) Ord. XXVIII. r. 9. (a) See Chapter VII. (*) Ord. XXVIII. i. 10. \y) See Chapter X. Section 1. (v) Ord. XXVIII. r. 12. (a) Ord. XIX. .-. 17. (w) Sell v. Wilkmaon, 26 W. R. [a) See Section 9 of this Chapter. 86 ORDINARY PROCEEDINGS IN AN ACTION. Where demurrer to defence allowed.* Demurrer to counter- claim. without moving, reply to the defence, and bring the action on for trial in the ordinary way, and on the trial the cause of action demurred to will be deemed to be admitted by the defendant (6). If a demurrer to the whole statement of defence be allowed the plaintiff may, unless leave to amend be given as above mentioned, proceed to obtain judgment by default under Ord. XXIX. (c) ; but if the demurrer be to part only of the defence, the plaintiff must reply to the other part. If a de- murrer to the statement of defence be overruled, and no leave to reply is given, the pleadings will be deemed to be closed, and the statements of fact in the defence, or the part thereof demurred to, will be deemed to be admitted (d) ; and if the plaintiff does not within six weeks, or within such extended time as a Court or judge may allow, give notice of trial, the defendant may do so ; or may apply to the Court or judge to dismiss the action for want of prosecution (e). Where a person who has successfully demurred to the whole of a counter-claim is not a party to the original action, but has been brought in under Ord. XXII. r. 6 (/), he will be entitled to recover from the defendant setting up the counter-claim his whole costs of the action, and not merely those of the de- murrer (g). If a demurrer to a counter-claim be overruled, and no leave to reply is given, if the demurring party is the plaintiff, the statements of fact in the counter-claim, or the part thereof demurred to, will be deemed to be admitted (h) ; and if the plaintiff does not within six weeks after the close of the pleadings, or within such extended time as a Court or judge may allow, give notice of trial, the defendant may do so (i) ; but he cannot move under Ord. XL. r. 11, for an order on ad- missions in the pleadings (j). If the party demurring be not the plaintiff, and no leave to reply is given, if the demurrer is to the whole of the counter-claim, the defendant can move for judgment against such party either under Ord. XXIX. r. 13 (Jc) (6) Daniell's Forms, 3rd ed. 279. (c) See Chapter VII. (d) Ord. XIX. r. 17 ; Ord. XXIX, r. 12. (e) Ord. XXXVI. rr. 4, 4a. See Chapter X. Section 1, .(f) Seep. 79. (g) Daniell's Forms, 3rd ed. 279. (h) Ord. XIX. r. 17 j Ord. XXIX. r. 12. (i) Ord. XXXVI. r. 4. U) Rolfe v. Maclaren, 3 Ch. D. 106. (fc) See Chapter VII. Section 5. THE PLEAD1XGS. 87 or Ord. XL. r. 1 (I) ; if, however, the demurrer is to part only of the counter-claim, the allegations of fact in that part will be taken to be admitted (m) ; and if the plaintiff does not within six weeks after the close of the pleadings, or within such extended time as a Court or judge may allow, give notice of trial, the defendant may do so (re). If a demurrer to the whole or part of a statement of reply Demurrer delivered by the plaintiff be allowed, and no leave to amend be t0 re P 1 y- given, the allegations of fact in the defence or counter-claim will, if the demurrer were to the whole reply, be deemed to be admitted (o) ; or if to part of the reply, will be taken to be admitted so far as they are not denied by the other part of the reply (p). And if the plaintiff does not within six weeks after the close of the pleadings, or within such extended time as a Court or judge may allow, give notice of trial, the defendant may do so ; or may apply to the Court or judge to dismiss the action for want of prosecution (q). If the reply was delivered by some other party than the plaintiff, and no leave to amend , was given, if the demurrer were to the whole reply, the defen- dant can apply for judgment under Ord. XXIX. r. 13 (r) ; but if to part only of the reply, the allegations of fact in the counter-claim will be taken to be admitted so far as they are not denied by the other part of the reply (s). And if the plaintiff does not within six weeks after the close of the plead- ings, or within such extended time as a Court or judge may allow, give notice of trial, the defendant may do so (t). If a demurrer to a reply be overruled, and no leave be given to the defendant to plead to the reply, the pleadings will be deemed to be closed, and the statements of fact in the reply or the part demurred to will be deemed to be admitted (w). (8.) Pleading Matters arising pending the Action (v). Any ground of defence which has arisen after action brought, Ground of but before the defendant has delivered his statement of defence, J[J^ and before the time limited for his doing so has expired, may (Q See Chapter X. Section I. (r) See Chapter VII. Section 5. (to) Ord. XIX. r. 17. («) Ord. XIX. r. 17. (») Ord. XXXVI. r. 4. (S) Ord. XXXVI. i. i. (o) Ord. XXIX. r. 12. («) Ord. XXIX. r. 12 (p) Ord. XIX. r. 17. (*) For forms, see Daniell's Forms, (?) Ord. XXXVI. rr. i, in. 3rd ed. 288—292. 88 ORDINARY PROCEEDINGS IN AN ACTION. Ground of defence to set-off or counter- claim. Defence after de- livery of defence or reply. Applica- tion for leave to deliver further defence or reply. Confession of defence. be pleaded by the defendant in his statement of defence, either alone or together with other grounds of defence. And if, after a statement of defence has been delivered, any ground of defence arises to any set-off or counter-claim alleged therein by the defendant, it may be pleaded by the plaintiff in his reply, either alone or together with any other ground of reply (w). Where any ground of defence arises after the defendant has delivered a statement of defence, or after the time limited for his so doing has expired, the defendant may, and where any ground of defence to any set-off or counter-claim arises after reply, or after the time limited for delivering a reply has expired, the plaintiff may, within eight days after such ground of defence has arisen, and by leave of the Court or a judge, deliver a further defence or further reply, as the case may be, setting forth the same (x). The application for leave to deliver a further defence or reply should be made as soon as the grounds arise upon which such application is based. In computing the eight days for leave and delivery the time of the long vacation is not reckoned, and the time may be enlarged, although the ap- plication is not made until the period allowed has expired (y). The application should be supported by affidavit, setting forth the new grounds of defence or reply, as the case may be, and also, if the application is not made until after the eight days allowed for leave and delivery have expired, explaining and accounting for the delay. Whenever any defendant in his statement of defence, or in any further statement of defence, as above mentioned, alleges any ground of defence which has arisen after the commence- ment of the action, the plaintiff may deliver a confession of such defence, and may thereupon sign judgment for his costs up to the time of the pleading of such defence unless the Court or a judge shall, either before or after the delivery of such con- fession, otherwise order (z). The plaintiff cannot after such confession bring another action in respect of the matters in question (a). A plaintiff who has confessed to a defence of his bankruptcy after action brought pleaded after a defence in bar (w) Ord. XX. t. 1. (x) Ord. XX. r. 2. {y) Ord. LVII. rr. 5, 6 ; He Jones, Eyre v. Cox, 25 W. E. 303. (s) Ord. XX. t. 3. (a) Newington v. Levy, 5 C. P. 607; 6C. P. 180. THE PLEADINGS. 89 of the action is entitled to his costs incurred up to the time such defence of bankruptcy is pleaded (6). And where the defence states that the defendant has been adjudicated a bank- rupt since action brought, and that the subject matter of the action was then in his order and disposition, the plaintiff may confess such defence, and sign judgment for his costs (c). In an action for breach of covenant and other causes of action the defendant paid money into Court in satisfaction, and pleaded that the covenant had since been performed. The plaintiff took the money out of Court, and confessed the statement as to the covenant. On an application for costs under Ord. XX., it was held that the statement confessed did not amount to " a defence " within Rule 3 of that 'Order, and that the plaintiff was only entitled to costs under Ord. LV., or under 15 & 16 Vict. c. 54 (d). On entering judgment a duplicate of the confession and the Entry of certificate of the Taxing Master will be required, in addition to ■ |a gmen ' the other necessary documents (e). (9.) Moving upon an admission of facts in the Pleadings (f). Any party to an action may at any stage thereof apply to the Applica- Court or a judge for such order as he may, upon any admissions °? or of fact in the pleadings, be entitled to, without waiting for the determination of any other question between the parties. Any such application may be made by motion, so soon as the right of the party applying to the relief claimed has appeared from the pleadings. The Court or a judge may, on any such ap- plication, give such relief, subject to such terms, if any, as such Court or judge may think fit ($r). The application should be made by motion (A). The motion need not be set down in the cause book, but may be brought on as an ordinary motion ; but if, on the motion being made, it appears that there must be a discussion or argument, it may be ordered to go into the general paper, subject to any order (1) Foster v. Gamgee, 1 Q. B. D. Chapter X. Section 2. 166. (/) F° r f orm °f notice of motion, (c) Champion v. Formby, 7 Ch. D. see Daniell's Forms, 3rd ed. 294. 37 3_ (g) Ord. XL. r. 11. See Chilton v. (d) CaUander v. Hawkins, 26 W. Corporation of London, 7 Ch. D. 735. g_ 212. (*) Austin v. Amhurst, M. R. at (e) As to entering judgment, see Chambers, 15th Jan., 1878. 90 ORDINARY PROCEEDINGS IN AN ACTION. Default in pleading is not "an admission of fact." Construc- tion of Ord. XL. t. 11. Evasive denial. Several defendants, for its being advanced (i). The judges have a discretion to grant or refuse " relief on admissions," and the Court of Appeal will not interfere with such discretion (/). The application may be made as soon as it appears on the pleadings that some- thing is admitted which entitles the party making the motion to relief (A). Default in delivering a pleading is not " an admission of fact on the pleadings " (I). Default in replying does not operate as an admission of a defence, so as to entitle the defendant to move under Ord. XL. r. 11, for dismissal of the action before the time limited for setting down the action for trial. If the plaintiff does not set it down for trial, the defendant should do so, or move under Ord. XXXVI. r. 4a (m), to dismiss for want of prosecution (»). And a defendant whose set-off or counter- claim is admitted by the plaintiff cannot move against the plaintiff under Ord. XL. r. 1 1 (o). It is not an answer to the motion that the order asked for would be equivalent to a judgment for the whole of the relief sought by the statement of claim ; the rule is to be read as if the words " if any " were inserted after the words " without waiting for the determination of any other question " (p). An evasive denial under Ord. XIX. r. 22 (q) in a partnership action will operate as an admission of the statement of claim so as to entitle the plaintiffs to an order for dissolution under Ord. XL. r. 11 (r). Where two defendants joined in a defence which disclosed no defence as to one of them, an order was made under Ord. XL. r. 11, against such defendant equivalent to final judgment (s). Where one defendant had not appeared, and the defences of the others entitled the plaintiff to judgment, it was held that the proper course was to move against all the defendants together (») Registrar's Notice, Dec, 1876. Wilson, 2nd ed. 275. ( j) Mellor v. Sidebottom, 5 Ch. D. 342. (k) Gilbert v. Smith, 2 Ch. D. 686. (I) Gillott v. Kerry 24 W. B. 428. (m) See Chapter X. Section 1. (») Litton, v. Litton, 3 Ch. D. 793. (o) Molfe v. Maclaren, 3 Ch. D. 106. (p) Clutton v. Lee, 24 W. K. 607. (?) See p. 71. Thorp v. Holds- worth, 3 Ch. D. 637. And see Turquand v. Wilson, 1 Ch. D. 85 ; Bumsey v. Reade, 1 Ch. D. 643 ; Bennett v. Moore, 1 Ch. D. 692. (?■) See p. 89. (s) Jenkins v. Hades, 1 Ch. D. THE PLEADINGS. 91 under Ord. XXIX. r. 10 (*), and Ord. XL. r. 11; and that notice of motion had been properly served on the defaulting defendant by being filed under Ord. XIX. r. 6 (it). (10.) Amending Pleadings (v). The plaintiff may, without any leave, amend his statement Without of claim once at any time before the expiration of the time leaTe " limited for reply (w) and before replying^ or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last ap- peared (x) ; and a defendant who has set up in his defence any set-off or counter-claim may, without any leave, amend such set-off or counter-claim at any time before the expiration of the time allowed him for pleading to the reply (y), and before plead- ing thereto, or in case there be no reply, then at any time before the expiration of twenty-eight days from the filing of his defence (z). But while a demurrer to the whole or any part of While a pleading is pending, such pleading cannot be amended unless pending* by order of the Court or a judge, and no such order will be made except on payment of the costs of the demurrer (a). The plaintiff cannot, under Eule 2, amend his statement of No part of claim by withdrawing any part or parts of his alleged cause of jnayta complaint ; nor can the defendant, under Eule 3, amend his withdrawn set-off or counter-claim by withdrawing any part thereof. If ^yjj r rr ' such withdrawal be deemed advisable, the party desiring it 2 & 3. must proceed as mentioned in Ord. XXIII. r. 1 (6). The Court or a judge may, at any stage of the proceedings, Power of allow either party to alter his statement of claim or defence or 9^ ™ reply, or may order to be struck out or amended any matter in to amend- such statements respectively which may be scandalous, or ment- which may tend to prejudice, embarrass, or delay the fair trial of the action, and all such amendments may be made as may be necessary for the purpose of determining the real questions or question in controversy between the parties (c). Application («) See Chapter VII. Section 2. (as) Ord. XXVII. i. 2. (a) Parsons r. Harris, 6 Ch. D. (y) As to this, see p. 82. 694. As to Ord. XIX. r. 6, see (s) Ord. XXVII. r. 3. p _ 7o, (a) Ord. XXVIII. r. 7. (») For forms, see Daniell's Forms, (6) See Part VI. Chapter 2.' 3rd ed. 297-303. (<0 Ord. XXVII. r. 1. (w) As to time for reply, see p. 81. 92 ORDINARY PROCEEDINGS IN AN ACTION. Applica- for leave to amend may be made by either party to the Court hon for or a j u( jg e m chambers, or to the judge at the trial of the amend. action, and such amendment may be allowed upon such terms as to costs or otherwise as may seem just (d) ; or if it appears to the judge that the statement of claim or defence or reply does not sufficiently define the issues of fact in dispute between the parties, he may direct them to prepare issues, and shall settle such issues if the parties differ (e). Cases in The Court will allow a plaintiff to amend his statement of which leave ] a i m -within a short limited time without an affidavit as to the given. materiality of the amendment, on payment of the costs of the application (/). Leave was given to amend the writ and state- ment of claim by turning them into an information and action, without prejudice to a pending motion, the sanction of the Attorney-General having been obtained (g). Leave was given at the hearing to amend a statement of claim, so as to raise an entirely new case, the defendant having liberty to amend his defence (h). And where the plaintiff charged wilful default, but did not allege any particular act, but alleged that upon the evidence as it stood he could prove wilful default, he was allowed to amend at the hearing, but he was not to enter into Refusal of new evidence and was to pay the costs of the hearing (i). A amend" re f usal of l ea ve to amend will only be given where the party desiring it has acted maid fide, or where, through his blunder, some injury has been done to the other side which cannot be compensated by costs or otherwise (?'). "Scandal." Scandal consists in the allegation of anything which is un- becoming the dignity of the Court to hear, or is contrary to good manners, or which charges some person with a erime not necessary to be shown in the_ cause : to which may be added, that any unnecessary allegation, bearing cruelly upon the moral character of an individual, is also scandalous. There are many cases, however, in which, though the words are very scandalous, yet, if they are material to the matter in dispute, (d) Ord. XXVII. i. 6. And see (h) Budding r. Murdoch, 1 Ch. Ord. XXVIII. r. 7, sup. D. 42. (e) Ord. XXVI. (,•) King v. Corke, 1 Ch. D. 57. (/) Chesterfield v. Blade, 25 W. And see Roe v. Davits 2 Ch D E. 409. 729. ' ' ' (?) Caldwell v. Pagham Haroour (j) TUdesley v. Harper 10 Ch D Co., 2 Ch. D. 221. 393. THE PLEADINGS. 93 they will not be considered as scandalous ; the Court, therefore, always judges whether, though matter be primd facie scan- dalous, it is or is not of absolute necessity to state it ; and if it materially tends to the point in question, and is become a necessary part of the cause, and material to the defence of either party, the Court never looks upon it to be scandalous (k). Allegations that the conduct set out was " the usual course of instances conduct " of the defendants were struck out as scandalous and of scandal, irrelevant (I). The whole of a statement of claim, which con- tained a mass of irrelevant matter and a number of reckless charges against the defendants, so mixed up as to be practically inseparable from the actual Claim, was ordered to be struck out, without prejudice to the plaintiff's right to deliver a fresh statement (m). And the whole of a statement of defence, which raised only a question proper for the decision of a judge at chambers was struck out (n). An "embarrassing" pleading is one in which matter is "Embar- pleaded which the party pleading is not entitled to make use rassl °g" of (o). A statement of claim of more than 200 folios, which contained statements of immaterial facts and evidence, and set out documents in extenso, was struck out as embarrassing ; but leave was given to deliver a new one (p). The Court will in- terpret the words " fair trial of the action " liberally, and will hold that a pleading which tends to prejudice, embarrass, or delay a party at any stage of the proceedings in the action, is a pleading which affects the fair trial of the action within the rule. A defendant does not, in general, prejudice or embarrass the fair trial of the action by paying money into Court at the same time that he denies the existence of the cause of action (q). Applications to strike out pleadings should be made by sum- Applica- mons, and the costs of a motion will not be allowed (r) ; but, if t i°\ to by consent, the order may be obtained on motion or petition of pleading, course ; and an order to amend by the correction of merely (£) Dan. Pr. 290, 291. K. 742 ; and see Stokes v. Grant, i (I) Eldke v. Albion Life Ass. Co., C. P. D. 25 ; Howell v. West, W. S. 35 L. T. 269. 1879, p. 90. (m) Cashin v. Craddock, 3 Ch. D. (p) Davy v. Garrett, 7 Ch. D. 473. 376. (?) Berdan v. Greenwood, 3 Ex. (n) Preston v. Lamont, 1 Ex. D. D. 251. 361. (r) Marriott v. Marriott, 26 W. (o) Heugh v. Chamberlain, 25 W. R. 416 94 ORDINARY PROCEEDINGS IN AN ACTION. Amend- ment of claim where defendant added. Where new case made by amend- ment. Costs of opposite party where cause of action or ground of defence struck out. Time for amend- ment. clerical errors may be obtained at any time, on motion or petition of course, and without consent. Tbe motion paper or petition, and the order, sbould specify the errors. Where a defendant is added under Ord. XVI. r. 13 (s) after a statement of claim has been delivered, such statement of claim must, unless otherwise ordered by the Court or a judge, be amended. If an alteration in the parties has been made by order, an amendment of the title of the pleadings previously delivered will be necessary (s). Where a plaintiff amends his statement of claim, or a defen- dant amends a set-off or counter-claim set up by him, so as to make an entirely new case, the defendant in the former case, or, in the latter case, the plaintiff or any person who has been served with the counter-claim, may apply to be put in the same position as if the plaintiff, instead of amending had discon- tinued his action, and commenced a new one, or as if the de- fendant, instead of amending had withdrawn his set-off or counter-claim, and delivered a new one. Upon the same prin- ciple, where the party amending his pleading strikes out any cause of action or ground of defence, set-off, counter-claim, or reply, or any allegations in his pleading, and the opposite party has incurred any costs in respect of the matter so struck out, he may apply to have siich costs taxed and paid to him (t). If a party who has obtained an order for leave to amend a pleading delivered by him does not amend the same within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order will, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a judge (it). The long vacation is not reckoned in the computa- tion of the time for amendment ; nor can a pleading be amended in the long vacation unless directed by a Court or a judge (»). The time for amendment may be enlarged, although the time allowed has expired (w). (s) See p. 9. Amendments may also be found to be necessary under Ord. XVI. rr. 13, 16, 18—21, see pp. 9, 11, 48—50 ; Ord. XVII. rr. 8, 9, see p. 26 ; Ord. XIX. r. 3, and XXII. x. 9, see p. 80 ; or Ord. XXIII. 1. See Part VI. Chapter 2. («) See Dan. Pr. 861, 352. (») Ord. XXVII. c. 7. (») Ord. LVII. rr. i, 5. (w) Ord. LVII l-. 6. THE PLEADINGS. 95 A pleading may be amended by written alterations in tbe How- pleading which has been delivered, and by additions on paper JjjJ)^" to be interleaved therewith if necessary, unless the amendments made, require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the pleading difficult or inconvenient to read, in either of which cases the amendment must be made by delivering a print of the pleading as amended (x). When- ever any pleading is amended, such pleading when amended must be marked with the date of the order, if any, under which it is amended, and of the day on which the amendment is made, in manner following, viz. : " Amended day of " (y). The words " By order dated ,'' should follow, in cases where the amendment is by order. Whenever a pleading is amended, such amended pleading Delivery o£ must be delivered to the opposite party within the time allowed ~w[j£!r for amending the same (z). If the amendments introduced into a pleading under an Appliea- order are not warranted by the order to amend or are improper, gtrikeout the opposite party may move on notice that the amendments amend- be struck out, and the pleading restored to its original state (a). men s " Where an order to amend as the party may be advised has been obtained, it would seem to be irregular to amend by striking out any cause of action or ground of defence, set-off, or counter-claim (6) ; and where such an amendment is made, the opposite party may either apply to have the amendment disallowed, and the pleading restored to its original state, or he may waive the irregularity and apply for the payment of any costs that he may have incurred in respect of the matter so withdrawn (c). Where any party has amended his pleading under Ord. XXVII. Applica- r. 2 or r. 3 (d), the other party may apply to the Court or a judge f 1011 f ° r for leave to plead or amend his former pleading within such plead or time and upon such terms as may seem just (e). If a state- amen(i ment of claim is amended the defendant may obtain leave to amend- ment. (k) Ord. XXVII. r. 8, i.e., if it (5) See Ord. XXIII. r. 1, post, Part contains ten folios or upwards. See VI. Chapter 2 ; Wymer v. JDodds, 40 p. 69. I*. T. 420. (y) Ord. XXVII. r. 9. (c) Daniell's Forms, 3rd ed. 301. (z) Ord. XXVII. r. 10. (d) See p. 91. (a) Dan. Pr. 351. (e) Ord. XXVII. r. 5. 96 ORDINARY PROCEEDINGS IN AN ACTION. ments. amend his defence ; and if he does not, his original defence will stand as an- answer pro tanto, and the amendments will be taken to be admitted upon the pleadings (/). Applica- Where any party has amended his pleading under Ord. XXVII. disallow r- 2 or r. 3 (g),'the opposite party may, within eight days {h) amend- after the delivery to him of the amended pleading, apply to the Court or a judge, to disallow the amendment, or any part thereof, and the Court or judge may, if satisfied that the jus- tice of the case requires it, disallow the same, or allow it sub- ject to such terms as to costs or otherwise as may seem just (i). If the amendment on the part of a plaintiff has been the with- drawal of a part of the alleged cause of complaint, or on the part of the defendant the withdrawal of any set-off or counter- claim, the amendment will be irregular (f) ; and the opposite party may either apply to have the amendment disallowed, and the, pleading restored to its original state, or he may waive the irregularity and apply for the payment of any costs that he may have incurred in respect of the matter so withdrawn (k). (/) Boddy v. Wall, 7 Ch. D. cation should be by summons. See 164. ' p. 93. (g) See p. 91. (J) Ord. XXIII. r. 1. See Part (A) As to extension of time, see VI. Chapter 2. Ord. LVH. r. 6. (k) DanieU's Forms, 3rd ed. 300. (i) Ord. XXVII. r. i. The appli- CHAPTER VII. PROCEEDINGS IN DEFAULT OF PLEADING. (1.) Default in Delivery of Statement of Claim (a). If the plaintiff, being bound to deliver a statement of claim, Applica- does not deliver the same within the time allowed for that * 1 . on *° _ dismiss purpose (6), the defendant may, at the expiration oT that time, for want apply to the Court or a judge to dismiss the action with costs, ° P rose - for want of prosecution ; and on the hearing of such applica- tion the Court or judge may, if no statement of claim have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as to the Court or judge shall seem just {c). If, after notice of the application is served, but before the Delivery of application is heard, the plaintiff delivers a statement of claim, ®J. a ^!^ m " t it will be a good answer to the application ; but the defendant after notice may bring the application on in order to obtain the costs ° fa PP lloa - thereof. The plaintiff should, therefore, on delivering the statement of claim after such notice, tender to the defendant his costs of the application up to the time of such delivery, and if he does so, the defendant will not be allowed subsequent costs in respect of such application. On the hearing, the Court usually grants it with costs, or gives the plaintiff a short further time to deliver his statement of claim, making him pay the costs of the application (d). The application should in general be made by summons (e), AppHca- supported by affidavit that a statement of claim has not been m ™' tovir dispensed with and has not been delivered, and the certificate of the Master of the Supreme Court, or the District Registrar, (a) For forms, see Daniell's Forms, (d) See Dan. Pr. 706—710. Big- 3rd ed. 304, 305. gimbottom v. Aynsley, 3 Ch. D. 288. (6) See p. 72. (e) See Freason v. Lowe, 26 W. R. (c) Ord. XXIX. 1. 1. 138. B 98 ORDINARY PROCEEDINGS IN AN ACTION. as the case may be, that an appearance has been entered by the defendant making the application. The defendant cannot have the action dismissed as against other defendants (/). An order was made that unless the statement of claim was delivered within a week the action should be at an end. The plaintiff took out a summons to set aside the appearance, but before it was heard the week expired. On appeal from an order dis- missing a subsequent application to extend the time for deliver- ing the statement of claim, it was held that the action was at an end, and that there was no jurisdiction to make the order (» judgment against the defendant so making default, or may set it down against him at the ..time when it is entered for trial or set down on motion for judgment against the other de- fendants (d). (3.) Proceedings to set aside Judgment for want of Defence (e). Any judgment by default may be set aside by the Court or a judge upon such terms as to costs or otherwise as such Court or judge may think fit*(/). (4.) Proceedings in default of Delivery of a Pleading subsequent to Defence. If the plaintiff does not deliver a reply or demurrer, or any party does not deliver any subsequent pleading, or a demurrer, within the period allowed for that purpose (g), the pleadings will be deemed to be closed at the expiration of that period, and the statements of fact in the pleading last delivered will be deemed to be admitted (h). The plaintiff in such case should give notice of trial. If he does not do so within six weeks after the close of the pleadings, or within such extended time as a Court or judge may allow, the defendant may either do so, or apply to have the action dismissed for want of prosecution («). (5.) Proceedings where issues arise other than between Plaintiff and Defendant, and a party to any such issue makes default in delivering a Pleading (J). In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party (d) Ord. XXIX. r. 11. As to (g) See Chapter VI. setting down action on motion for (A) Ord. XXIX. r. 12. judgment, see Chapter X. Section 1. (i) Ord. XXXVI. rr. 4, 4a. See (e) For forms, see Daniell's Forms, Chapter IX. Section 1. 3rd ed. 313, 314. O - ) For form of notice of motion (/) Ord. XXIX, r. 14. As to for judgment, see Daniell's Forms, mode of proceeding, see pp. 62, 63. 3rd ed, 451. 102 ORDINARY PROCEEDINGS IN AN ACTION. may apply to the Court or a judge for such judgment, if any, as upon the pleadings he may appear to be entitled to. And the Court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties (k). (k) Ord. XXIX. r. 13. As to Ord. XVI. rr. 17, 18, 21, pp. 47— when issues may arise other than 50 ; Ord. XXII. r. 5, p. 79. between plaintiff and defendant, see CHAPTER VIII. EVIDENCE. (1.) Admissions (a). Ant party to an action may give notice, by his own state- By notice. ment or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in the statement of claim, defence, or reply of any other party (6). Admissions are frequently made by mutual agreement be- By mutual tween the parties to save expense or prevent delay. All a S reement - written admissions whereon any order is founded, must be in- dorsed by the Kegistrar and filed at the Eeport Office (c). Every allegation of fact in any pleading in an action, not When alle- being a petition or summons, if not denied specifically or by 1^°^ ° necessary implication, or stated to be not admitted in the pleadings pleading of the opposite party, will be taken to be admitted, admissions except as against an infant, lunatic, or person of unsound mind not so found by inquisition (tZ). Either party may call upon the other party to admit any Notice to document, saving all just exceptions ; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document must be paid by the party so neglecting or re- fusing, whatever the result of the action may be, unless at the hearing or trial the Court certify that the refusal to admit was reasonable; and no costs of proving any document will be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing officer, a (a) For forms, see Daniell's Forms, v. Dairies, 1 Ch. D. 696 ; Thorp v. 3rd ed. 322 — 328. Holdsworth, 3 Ch. D. 637 ; Byrd v. (i) Ord. XXXII. t. 1. Nunn, 5 Ch. D. 781 ; 7 Ch. C. 284 ; (c) Dan. Pr. 746, 747. Collate v. Goode, 7 Ch. D. 842 ; (•) Braithwaite's Oaths, 45 (») Dan. Pr. 792, 793. EVIDENCE. 125 * " Re-sworn," then the first jurat should not be struck out, or in any manner interfered with ; but if the second jurat commences with the word " Sworn " — in other words, if the jurat on the re-swearing is such as is used when a document is first sworn to — then the first jurat must be struck out, and the striking out authenticated by the initials of the commissioner before whom the affidavit is last sworn (s). If more than one de- ponent is sworn at the same time the name of each deponent so sworn must be inserted in the jurat. A commissioner to administer oaths is entitled to a fee of Fees. 1*. Qd. for each oath, and Is. for marking each exhibit (t). Where an affidavit is taken before an officer of the Court the fee is Is. 6d. and for each exhibit marked by him Is., payable by a stamp impressed upon or adhesive to the affidavit (u). The Masters of the Supreme Court, or the District Registrar, Altera- as the case may be, may refuse to file any affidavit in which tlons ' e 5 a * there is any knife-erasure ; or which is blotted so as to obliterate any word ; or which is improperly written ; or so altered as to cause any material disfigurement ; or in which there is any in- terlineation, unless the person before whom it is sworn authen- ticates such interlineation with his initials, so as to show that it was made before the affidavit was sworn, and so as to mark the extent of such interlineation (v). A notice has recently been issued by the Masters of the Supreme Court to the effect that no affidavit in which any unauthenticated alteration occurs will be filed without permission of the judge to whose Court the action is attached ; and no consent will be accepted as waiving any irregularity or informality in the affidavit (w). It must be stated in a note at the foot of every affidavit filed, Statement on whose behalf it is so filed, and such note must be printed on "l*? *?* every printed copy of an affidavit or set of affidavits, and copied on every office copy and copy furnished to a party (x). No affidavit may be used before it is filed (y). On filing an Filing and affidavit a fee of 2,s. is payable by a stamp impressed upon or procuring copies. (a) Dan. Pr. 645. Braithwaite's Oaths, 59. (t) Rules as to Costs, Sched. (x) Rules as to Costs, Ord. V. («) Ord. as to Court Fees, Oct., r. 11. 1875, Sched. ; Ord. as to Fees, April, (y) Cons. Ord. XVIII. r. 5 ; but 1876, Sched. see Chan. Funds Cons. Rules, 1874, (v) Cons. Ord. I. r. 36. i. 86, as to affidavits for use in the (w) Daniell's Forms, 3rd ed. 3S6 ; Chancery Pay Office. 126 ORDINARY PROCEEDINGS IN AN ACTION. adhesive to the affidavit (z). The party by or on whose behalf any affidavit is filed must leave a copy with the officer with whom the same is filed, who will examine it with the original, and mark it as an office copy ; and such copy must be printed where the affidavit is to be printed (a) ; and such party must produce such office copy upon every proceeding to which the same relates (6). Kegulations have lately been issued as to copies of affidavits left to be examined as office copies, which provide (inter alia) that after the original affidavit has been marked at the divi- sional seat, the copy and original must be taken to the stationer ; that copies left on a day preceding a motion day, and required for use on the hearing of a motion, and other copies required for immediate use, are to be marked with a special mark at the divisional seat ; that copies specially marked will be examined in priority to all copies not specially marked, left the same day ; and that all copies should be left before two p.m. of the day preceding that on which they are required to be delivered out, as, if left afterwards, the Masters of the Supreme Court cannot undertake that such copies shall be ready for delivery at the opening df the office next day. Furnishing Where an affidavit is printed (c), the party printing must, on thfother demand in writing, furnish to any other party or his solicitor side. any number of printed copies, not exceeding ten, upon payment therefor at the rate of Id. per folio for one copy, and \d. per folio for every other copy (d). The solicitor of the party print- ing must give credit for the whole amount payable by any other party for printed copies (e). A party entitled to be furnished with a print will not be allowed any charge in respect of a written copy, unless the Court or judge shall otherwise direct (/). Where any party is entitled to a copy of an affidavit filed by or on behalf of another party, which is not required to be printed, such copy must be furnished by the party by or on whose behalf the same has been filed or prepared (#) ; and the party requiring any such copy, or his solicitor, must make a written (z) Ord. as to Court Fees, Oct., (c) Seep. 118. 1875, Sohed. ; Ord. as to Fees, April, (d) Rule3 as to Costs, Ord. V. 1876, Sched. r. 3. {a) Eules as to Costs, Ord. Y. (e) Id. r. 4. r- 6. (/) H. r. 5. (b) W. '■• 7. (ff) Id. r. 8. EVIDENCE. 127 application to the party by whom the copy is to be furnished, or his solicitor, with an undertaking to pay the proper charges, and thereupon such copy must be made and ready to be de- livered at the expiration of twenty-four hours after the receipt of such request and undertaking, or within such other time as the Court or judge may in any case direct, and must be fur- nished accordingly upon demand and payment of the proper charges (h). In the case of an ex parte application for an in- junction or writ of ne exeat regno, the party making such ap- plication must furnish copies of the affidavits upon which it is granted, upon payment of the proper charges, immediately upon the receipt of such written request and undertaking as afore- said, or within such time as may be specified in such request or may have been directed by the Court (i). The name and ad- dress of the party or solicitor by whom any copy is furnished must be indorsed thereon in like manner as upon proceedings in Court, and such party or solicitor is answerable for the same being a true copy of the original, or of an office copy of the original, of which it purports to be a copy, as the case may be (f). The folios of all printed and written office copies, and copies delivered or furnished to a party, must be numbered consecutively in the margin thereof, and such written copies must be written in a neat and legible manner on the same paper as in the case of printed copies (k). In case any party or solicitor who shall be required to furnish a written copy shall either refuse or, for twenty-four hours from the time when the application for such copy has been made, neglect to furnish the same, the person by whom the application is made may procure an office copy from the office in which the original shall have been filed, and in such case no costs will be due or payable to the solicitor so making default in respect of the copy or copies so applied for (I). Upon filing an affidavit, it is usual to give notice to the Notice of other side, and this must be done in the case of a claimant ng ' coming in under a judgment in answer to an advertisement (m) ; and where on the hearing of any petition, motion, or summons, Notice of intention (h) Rules as to Costs, Ord. V. r. 9. {I) Id. r. 14. (i) Id. r. 10. («n) Cons. Ord. XXXV. r. 38. This (j) Id. i. 12. rule is abrogated by (Jen. Ord. 27th (A) Id. r. 13. As to paper, see May, 1865, r. 11, so far as it relates , ] 20. to creditors. 128 ORDINARY PROCEEDINGS IN AN ACTION. to use affidavits previously tiled, on the hearing of peti- tions, &c. Scandalous and irre- levant matter. it is intended to read affidavits filed before the petition, notice of motion, or summons was presented, served, or issued, notice of such intention must be given to the opposite party (n). If an affidavit contain scandalous and irrelevant mattes it may be ordered to be taken off the file, or the scandalous matter may be ordered to be expunged (o). When an affidavit is too long, and contains scandalous matter, the best course is to take it off the file (p). An application for an order that an affidavit be taken off the file may be made by motion or summons. The former mode of obtaining an order to have scandalous matter, contained in- a pleading or in an affidavit in- tended to be used before the Court expunged, was by filing exceptions for scandal. This practice has not been expressly abolished, but in the case of scandalous pleadings a more summary mode has been provided, viz., an application to the Court or a judge at Chambers, or a judge at the trial, to strike out or amend the scandalous matter (pp) ; and it is conceived that in the case of affidavits intended to be used before the Court which contain scandalous matter, an application should be made by motion to expunge the matter in question (g) ; but if an affi- davit contains scandalous statements, the Court can act in the matter without any application at all (qq). If any party wishes to complain of any matter introduced into any affidavit before the judge'in Chambers on the ground that it is scandalous, he may take out a summons for the judge to examine such matter, and the judge may cause any such matter which he may deem to be scandalous to be expunged (r). When an order has been made that scandalous matter be expunged, the officer who has the custody of the affidavit will expunge the scandalous matter accordingly upon production of the order : and will write a memorandum of the fact in the margin of the affidavit opposite the expunged passage. If an office copy has been taken, it will be amended on being left with the officer («). (n) Daniell's Forms, 3rd ed. 403. (o) Dan. Pr. 789. As to what is scandalous matter, see p. 92. (p) Ormaeton v. Association of Land Financiers, W. N. (1878), 101. (pp) Ord. XXVII. rr. 1, 6. (q) Daniell's Forms, 3rd ed. 404. (qq) Cracknall v. Janson, 39 L. T. 81. (r) Cons. Ord. XXXV. r. 60. (*) Dan. Pr. 296. EVIDENCE. , 129 (5.) Examination of Witnesses Be Bene Esse (t). The Court or a Judge may, iu any cause or matter where it Power to shall appear necessary for the purposes of justice, make any j u( j ge to order for the examination upon oath before any officer of the order ex- Court, or any other person or persons, and at any place, of any „n oath.° n witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a judge may direct («). The examination of a witness de bene esse ordinarily takes In what place where there is danger of losing his testimony, as where cases ' he is suffering from a dangerous illness, or is seventy years old or upwards, or is about to go abroad ; or where he is the only witness to an important fact (v) ; but by the above rule such examination may be ordered in any case where it shall appear necessary for the purposes of justice. The application may be made by either party at any stage of Applica- the action. Where the ground of application is that the witness (^j. 01 is dangerously ill, or is seventy years of age or upwards, or is about to go abroad, the order may be obtained ex parte on motion or petition of course ; in other cases the application must be by motion or summons upon notice. When the order is obtained ex parte, it must be served upon the opposite party. In any case the application must be supported by an affidavit of the facts which form the ground of application ; and if the ground is that the witness is the only witness to a fact, the affidavit should state the particular points to which his evidence will apply, and should show the ground for believing that the witness is the only witness to the fact or facts in question (w). Forty-eight hours' notice of the examination is sufficient to Notice of the other side, and the notice must state the name and de- ^ mlna " scription of the witness, and the time and place of examina- tion (%). Depositions taken de bene esse cannot be made use of without Applica- an order ; and the ordinary course of the Court is not to allow tlon for ' J order to use deposition. («) For forms, see Daniell's Forms, (w) Dan. Pr. 817, 818. 3rd ed. 405—408. (x) Ord. Feb., 1861, r. 22. As (u) Ord. XXXVII. r, 4. to mode of taking the examination, (v) Dan. Pr. 814. see pp. 109—111. K 130 ORDINARY PROCEEDINGS IN AN ACTION. of their use unless it is impracticable to obtain the evidence of the witness in the ordinary course. The application is by- motion on notice, supported by an affidavit showing that the evidence of the witness cannot be obtained in the ordinary course, and, when the evidence in the action has been taken by affidavit, showing that the affidavit of such witness could not have been obtained (y). (y) Dan. Pr. 819—821. CHAPTER IX. TRIAL. (1.) Notice of Trial and Countermand of Notice (a). The plaintiff may give notice of trial with his reply, or at When any time after the close of the pleadings (6). If the evidence triiUto be has been taken by affidavit, by consent (c), notice of trial should given, be given after the close of the evidence. If the plaintiff does not give notice of trial within six weeks after the close of the pleadings, or, where the evidence has been taken by affidavit, within six weeks after the close of the evidence, or, in either case, within such extended time as the Court or a judge may allow, the defendant may, before notice of trial given by the plaintiff, give notice of trial, or, instead thereof, apply to the Court or a judge to dismiss the action for want of prosecu- tion (d). The notice of trial must state whether it is for the trial of Statements. the action or of issues therein (e), and must specify the proposed ™ yj, 1 * 6 m mode of trial (/). Ten days' notice of trial must be given, unless the party to Length of whom it is given has consented to take short notice of trial ; not1013, and is sufficient in all cases, unless otherwise ordered by the Court or a judge. Short notice of trial is four days' notice (g). The notice must be given before entering the action for trial (h). Unless within six days after notice of trial is given the cause When is entered for trial by one party or the other, the notice will be n " " '" ceases to be in force. (a) For forms, see Daniell's Forms, XXXVIII. r. 6. 3rd ed. 410—418. (c) Ord. XXXVI. t. 8. (6) Ord. XXXVI. r. 3. (/) Id. rr. 3, 4. (c) See p. 118. fer) Id. r. 9. (d) Ord. XXXVI. rr. 4, 4a ; Ord. (h) Id. r. 10. K 2 132 ORDINARY PROCEEDINGS IN AN ACTTON. Operation of notice. Service of notice. Proof of service. Counter- mand. Modes of trial. no longer in force. But this rule does not apply to trials not in London or Middlesex (i). Notice of trial for London or Middlesex (/) will not be or operate as for any particular sittings ; but will be deemed to be for any day after the expiration of the notice on which the action may come on for trial in its order upon the list (k) ; and the list or lists of actions for trial at the sittings in London or Middlesex respectively are prepared, and the actions allotted for trial, without reference to the division of the High Court to which such actions are attached (I). Notice of trial elsewhere than in London or Middlesex will be deemed to be for the first day of the then next assizes at the place for which notice of trial is given (m). In the case of any party who has appeared, the notice of trial may be served by being left at the address for service. In the case of any defendant who has not appeared, the notice may be filed with the Master of the Supreme Court or the District Registrar, as the case may be (n). The party giving the notice of trial should be prepared to prove the service of the notice, in case the party to whom notice is given should fail to appear (o). Proof may be given by means of an affidavit of service or by the certificate of the officer with whom the notice has been filed, as the case may be. The proof must be given before the rising of the Court on the day of the trial ( p). No notice of trial may be countermanded, except by con- sent, or by leave of the Court or a judge, which leave may be given subject to such terms as to costs, or otherwise, as may be just (q). (2.) Proceedings to Settle Mode of Trial (r). Actions may be tried and heard either before a judge or judges, or before a judge sitting with assessors, or before a judge and jury, or before an official or special referee, with or (i) Ord. XXXVI. r. 10a. (j) See 36 & 37 Vict. c. 66, s. 30. (*) Ord. XXXVI. r. 11. (I) Id. r. 16. (m) Id. r. 12. (») Ord. XIX. rr. 6, 29. (o) Coc&shott v. London Gen. Cab Co., 26 W. R. 31 ; Cockle v. Joyce, 7 Ch. D. 56. But see James v. Crow, 7 Ch. D. 410 ; Ex p. Lows, 7 Ch. D. 160. (p) Miltovm v. Stewart, 8 Sim. 34. (?) Ord. XXXVI. r. 13. (»■) For forms, see Daniell's Forms, 3rd ed. 410—418, 434—437. TRIAL. 133 without assessors («). The party giving the notice of trial must thereby specify one of the modes of trial above men- tioned (t). If the mode of trial specified is other than that of trial before Notice of a judge and jury, the party to whom the notice is given may, have^ssues upon giving notice within four days from the time of the service of fact of the notice of trial, or within such extended time as a Court „ j.„,„ or judge may allow, to the effect that he desires to have the issues of fact tried before a judge and jury, be entitled to have the same so tried (u). This is, however, to be read subject to the qualifications hereafter mentioned. Chancery actions for trial by jury must be tried at the Chancery assizes or at the London or Middlesex sittings of the judges trial"bv attached to the Common Law Divisions ; and the same rule jury. applies to issues in Chancery actions (v) ; and where in Chan- cery actions notice of trial by jury is given under Ord. XXXVI. r. 3, no reason need be given by the judge under Ord. XXXVI. r. 29a, why it is expedient that the trial should not take place in the Chancery Division (w). The Court or a judge may, if it shall appear desirable, direct Where a trial without a jury of any question or issue of fact, or partly 5? a ^ of fact and partly of law, arising in any cause or matter which may be previously to the passing of the Judicature Act, 1873, could, dlrected - without any consent of parties, be tried without a jury (a 1 ). Either party has, however, a primd fade right to insist on having an action tried by a jury ; and the discretion of the Court to interfere with such right ought only to be exercised in cases where trial by jury would be obviously cumbrous and inconvenient (y). Still, such discretion is rightly exercised in refusing a jury in cases which, under the old practice, would have been within the exclusive cognizance of the Court of Chancery without a jury (z) ; and even when a Chancery action is of such a nature that the chief question would usually be tried by a jury, a judge has an absolute discretion to order (*) Ord. XXXVI. r. 2. {x) Ord. XXXVI. r. 26. (t) Id. rr. 3, 4. (y) Clwrke ». Codkton, 2 Ch. D. («) Id. Sugg v. Siller, 1 Q. B. 746. And see Huston v. Tobim, 10 D- 362. Ch. D. 558; Spratt v. Ward, 11 Ch. (y) Warner v. Murdoch, 4 Ch. D. D. 240 ; Singer Mawufactwing Co, 750. T . Long, W. N. (1879), 94. (w) Hunt t. CUy of London Real (z) Swindell v. Birmingham Syn- Prop. Co., 3 Q. B. D. 19. dicate, 3 Ch. D. 127. 134 ORDINARY PROCEEDINGS IN AN ACTION. Order for trial of questions or issues before referees. otherwise if, having regard to all the questions which may arise, he thinks it ought not to be so tried. Where the intention of the parties must be collected from a bulky correspondence, it ought not to be so tried (a). Where only one of several defen- dants wishes for a jury, he has not an absolute right to it under Rule 3. A jury was refused under Rule 26, on the ground that one defendant did not wish for it, that the same question had already been tried by two juries with different results, and that it would be more convenient and less expensive to have a trial in the Chancery Division (b). A defendant in an action for a mandatory injunction to restrain him from interfering with the plaintiff's ancient lights is entitled to a trial by jury ; and the discretion given to the Court by Rule 26 does not apply to such a case (c). The discretion of the Court will be exercised when the principal question is whether a contract was induced by fraud (d). If the parties agree to take the evidence by affi- davit, a trial by jury ought not to be allowed (e). When the judge has exercised his discretion such discretion cannot usually be appealed from (/ ). In any cause or matter (other than a criminal proceeding by the Crown) before the High Court in which all parties interested who are under no disability consent thereto, and also without such consent in any such cause or matter requiring any prolonged examination of documents or accounts, or any scien- tific or local investigation which cannot, in the opinion of the Court or a judge, conveniently be made before a jury, or con- ducted by the Court through its other ordinary officers, the Court or a judge may at any time, on such terms as may be thought proper, order any question or issue of fact or any ques- tion of account arising therein to be tried either before an official or special referee (g). The Court or judge has no power to refer the whole action to an official or special referee. Under- section 57 the Court or a judge can order any question or issue of fact or account to be tried. There is no power to refer {a) Garling v. Eoyds, 25 W. R. 123 ; West v. White, 4 Ch. D. 631. (b) Mirehouse v. Barnett, 26 W. R. 690. (c) Bordier v. Bwrrell, 5 Ch. D. 512. (d) Bach v. Ray, 5 Ch. 235. And see Pilky v. Baylis, 5 Ch. D. 241. (e) Brooke v.. Wigg, 8 Ch. D. 510. (/) Swindell v. Birmingham Syn- dicate, 3 Ch. D. 127; West v. White, sup. ; Davy v. Garrett, 7 Ch. D. 473. (g) 36 & 37 Vict. c. 66, s. 57. TRIAL. 135 actions, but only questions or issues of fact in actions (h). A trial will not be directed before a referee unless it is a better mode of trial than any other (i) ; and a reference under section 57 will not be ordered, except by consent, where the reputation of one of the parties is at stake, e.g., when there are charges of fraud (j). Where the matter in dispute consists wholly or in part of Matters matters of mere account, which cannot conveniently be tried in accoun t. the ordinary way, the Court or judge may decide the matter in a summary manner, or may order that such matter, either wholly or in part, be referred Jo an arbitrator appointed by the parties, or to an officer of the Court (k). In references to arbitration the 17 & 18 Vict. c. 125 (C. L. P. Act, 1854), is to be read with the Judicature Act, 1873 (I). In any case in which neither the plaintiff nor the defendant Applica- has given notice as above mentioned that he desires to have the °^. 0( j e issues of fact tried before a judge and jury, or in any case of trial, within the 57th section of the Judicature Act, 1873 (m), if the plaintiff or defendant desires to have the action tried in any other mode than that specified in the notice of trial, he must apply to the Court or a judge for an order to that effect, within four days from the time of the service of the notice of trial, or within such extended time as a Court or judge may allow (n). An order cannot be made under Eule 5 depriving either party of his right to a jury, even if a judge with assessors would be a more fitting tribunal (o). A party cannot apply to change the mode of trial specified in his own notice of trial ( p). If the application is that the trial may take place before asses- sors or before a special referee, it should go on to ask for the appointment of assessors or of a special referee, and to fix their remuneration (q). Subject to the provisions of Ord. XXXVI. rr. 1 — 5 (r), the Order for Court or a judge may, in any action at any time or from time ^g^j^ to time, order that different questions of fact arising therein be questions of fact. (h) Longman v. Mast, 3 C. P. D. mJmg Baths Co., 1 C. P. D. 260. 142. (m) See p. 134. (i) Me Leigh, Rowcliffe v. Leigh, (m) Ord. XXXVI. r. 5. 3 Ch. D. 292. ' (o) Sugg v. Siller, 1 Q. B. D. 362. {]) Leigh v. Brooks, 5 Ch. D. \p) Lascelles v. Butt, 2 Ch. D. 592. 588. (h) 17 k 18 Vict. c. 125, s. 3. (?) Darnell's Forms, 3rd ed. 417. (l) Cruikshank v. Bloating Swim- (r) See supra. 136 ORDINARY PROCEEDINGS IN AN ACTION. Order for separate trials of different causes of action. Applica- tion to set down on motion for judgment where some issues tried. Plaintiff moy name place of trial. tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoint the place or places for such trial or trials, and in all cases may order that one or more issues of fact be tried before any other or others («). And if the plaintiff has united in the same action several causes of action and it appears to the Court or a judge that any such causes of action cannot be conveniently tried or dis- posed of together, the Court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof (t). In deciding whether a claim and counter- claim shall be tried together or separately, the Court is guided by the question of convenience (u). Where issues have been ordered to be tried, or issues or ques- tions of fact to be determined in any manner, and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or deter- mination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or de- termination thereof should be postponed, may apply to the Court or a judge for leave to set down the action on motion for judgment, without waiting for such trial or determination. And the Court or judge may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other questions of fact (uu). (3.) Place of Trial (v). When the plaintiff proposes to have the action tried else- where than in Middlesex, he must in his statement of claim name the county or place in which he proposes that the action shall be tried, and the action will, unless a judge otherwise orders, be tried in the county or place so named. Where no place of trial is named in the statement of claim, the place of trial will, unless a judge otherwise orders, be the county of (s) Ord. XXXVI. r. 6. See Emma Mine v. Grant, W. N. (1878), 228 ; W.N. (1879), 29. (*) Ord. XYTI. r. 1. {v.) Re Woodfine ; Thompson v. Woodfine, 26 W. R. 678. {uu) Ord. XL. r. 8. And see 36 & 37 Vict. c. 66, ». 29. (v) For form of application to change place of trial, see Daniell's Forms, 3rd ed. 416. TRIAL. 137 Middlesex. Any order of a judge as to .such place of trial may be discharged or varied by a Divisional Court (mi). Where in any action in the Chancery Division the action or Chancery any question at issue in the action is ordered to be tried at the „°j e °^ to assizes, or at the London or Middlesex sittings of any Division be tried other than the Chancery Division (ww) the order directing such y^jjj™ trial must state on its face the reason for which it is expedient Chancery that the action, question, or issue should be so tried and should Dmslon - not be tried in the Chancery Division (x). This rule only ap- plies where an order is made by a judge of the Chancery Divi- sion under Ord. XXXVI. r. 29, for the trial of any question or issue of fact, or partly of fact and partly of law, at the assizes, or at the sittings in Middlesex or London, and does not affect the right of parties to try at the assizes, or to try their issues of fact by jury in London or Middlesex (y). A Chancery action was ordered to be tried at the Staffordshire Assizes because (1) both sides desired it, (2) it was for damages only, (3) it related to land in Staffordshire, and (4) the witnesses resided in that neighbourhood. The desire of the parties would not, alone, be a sufficient reason (2). (4.) Entering the Action for Trial (a). Notice of trial must be given before entering the action for When, and trial (b) ■ and within six days after notice of trial is given the f" 7 wlu) m cause must be entered for trial by one party or the other, other- entered, wise the notice of trial will be no longer in force. This rule does not apply to trials at the assizes (c). If notice of trial is given for the assizes, either party may enter the action for trial. If both parties enter it, it will be tried in the order of the plaintiff's entry (<#). If the party giving notice of trial for London or Middlesex omits to enter the action for trial on the day or day after giving notice of trial, the party to whom notice has been given may, unless the notice has been counter- manded (e), within four days enter the action for trial (/). (*>) Ord. XXXVI. r. 1. 3rd ed. 419—423. (tow) See p. 133. (6) Ord. XXXVI. 1-. 10. (x) Ord. XXXVI. x. 29a. (e) Id. r. 10a. (y) Warner v. Murdoch, 4 Ch. D. (d) Id. r. 15. 750. (e) As to countermand of notice of (z) Wood v. Hamblet, 6 Ch. D. trial, see p. 132. 113. (/) Ord. XXXVI. r. 14. (a) For forms see Darnell's Forms, 138 ORDINARY PROCEEDINGS IN AN ACTION. Chancery actions. Chancery actions for trial by jury- Official referee. Chancery actions in district registry. Chancery actions to be tried by a judge are entered for trial ' with the Eegistrar. As to trials of Chancery actions before a judge and jury, the following notice was issued in February,- 187 7 : — "In actions assigned to the Chancery Division, when the plaintiff under Ord. XXXVI. r. 3, of the Eules of the Supreme Court, gives notice of trial before a judge and jnry(g) the action is to be entered for trial with the associates, instead of with the Chan- cery Registrar. Where after the plaintiff has given notice of trial in any other manner and has set down the action in the Chancery Division the defendant has, under the provisions of the said rule, given notice that he desires to have the issues of fact tried before a judge and jury, the action will be marked in the cause book "jury trial at defendant's instance," on the re- quest of the solicitor for either party, and on the certificate of such solicitor that such notice has been duly given within the time, or extended time referred to in Eule 3. Actions which have been so marked will be added by the associates to their list of actions for trial, upon the solicitor for either party bringing to them the certificate of the Chancery Eegistrar in the form given below, jmnexed to the statement of elairt h Su ch actions will be placed in the list in the order in which they are entered with the associates. [Reference to record and Short Title.] " I certify that this action was entered for trial in the cause book of the Chancery Division on the day of , and that it has been this day marked ' Jury trial at defendant's instance,' in accordance with a notice given by the defendant under Order XXXVI. rule 3, of the Rules of the Supreme Court Dated the day of , 18 . A. B., for the Senior Registrar " (gg). If notice of trial before an official referee has been given, a duplicate of the notice must be produced to the Registrar's clerk who will indorse thereon a note specifying the name of the official referee in rotation before whom the action is to be tried ; and such indorsement will be a sufficient authority for the official referee to proceed (h). If an action in the Chancery Division is proceeding in a district registry it must be entered for trial with the District Eegistrar (i). (?) See pp. 132, 133. (gg) W. N. (1877), Pt. II. p. 162. (h) Ord. XXXVI. r. 29b. (j) Ord. XXXV. r. la. TKIAL. 139 On entering the action for trial a copy of the notice of trial Entry of and two copies of the whole of the pleadings must be delivered aotlon - to the officer. Such copies of the pleadings must be in print, except as to such parts, if any, of the pleadings as are by the Eules permitted to be written (j). A fee of £1 on the lower or £2 on the higher scale is payable Fees - on entering the action. Where entered with the associate the fee is payable by a stamp impressed upon or adhesive to a copy of the pleadings ; in other cases, by a stamp impressed on the prceeipe (k). In Chancery actions the praecipe should bear an indorsement Indorse- to the effect that there is no infant defendant, or if there is, precipe. that a guardian ad litem has been appointed. An action may without consent be marked "short" on the "Short" production of the certificate of counsel for the party setting ac lons " down the action that it is fit to be so heard. It will then be placed in the paper for trial on the first short cause day after the day for which notice of trial is given. This practice obtains only in the Chancery Division (I). The certificate of the plaintiff's counsel is prima facie ground for setting down a cause as short. If a defendant desires it to go into the general paper, he must show some fair reason ; if he do not,- it will be heard short (m). An action will not be heard as " short " unless the evidence has been taken by affidavit («). Notice that the action has been marked short must be given to the defendant. If he has appeared, it may be left at the address for service ; if not, it may be filed with the Master of the Supreme Court or the District Eegistrar, as the case may be (o). If the notice has been served, an affidavit of service Bhould be made, in case the defendant should not appear at the trial (oo). If the notice has been filed, a certificate of the fact should be procured from the officer with whom it was filed. When a cause has been entered for trial, it may be with- With drawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing, signed by the parties ( p) ; (j) Ord. XXXVI. rr. 17, 17a. As (I) Daniell's Forms, 3rd ed. 420. to when pleadings must be printed, (m) Fdetead v. Gray, 18 Eq. 92. see p. 69. (n) Anon., W. N. (1875) 193. (h) Ord. as to Court Fees, Oct., (o) Ord. XIX. rr. 6, 29. 1875, Sched. ; Ord. as to Pees, (oo) See Seton, 4th ed. 18. April, 1876, Sched. (p) Ord. XXIII. i. 2. drawal of action. 140 ORDINARY PROCEEDINGS IN AN ACTION. but except by consent, it is not competent to the plaintiff to withdraw the Record without leave of the Court or a judge (q). Where an action is compromised, after it is entered for trial, the plaintiff's solicitor must certify the fact to the Eegistrar (r). Notice of trial by. Order for trial by common jury. jury may be ordered t y Court or judge. Expenses of. Notice to sheriff. (5.) Special Jury (s). Either party may give notice to have the action tried by a special jury. The plaintiff must give the same notice as in the case of a notice of trial (t). The defendant must give such notice more than six days before the day for which notice of trial is given (u). Where the action is to be tried in London or Middlesex, and the defendant gives such notice, the Court or a judge, if satisfied that the notice is given for the purpose of delay, may order that the action be tried by a common jury (v). The application by the plaintiff for such order should be supported by an affidavit of the facts (w). The Court or a judge may at any time order that a cause be tried by a special jury, upon such terms as shall be thought fit (x). The party giving the notice of trial by special jury must bear the expenses of such jury, and will not, though successful, be entitled to recover them from the opposite party, unless the judge before whom the action is tried certifies at the trial that the action was proper to be tried by a special jury (y). Where an action is to be tried by a special jury, notice must be given to the sheriff six days before the day for which notice of trial is given, otherwise no special jury need be summoned or attend, and the action may be tried by a common jury in like manner as if no proceedings had been had to try the action by a special jury (z). ( 9 ) Ord. XXIII. r. 1. (r) Cons. Ord. XXI. r. 7. (s) For forms, see Daniell's Forms, 3rd ed. 423, 424. (0 See p. 181. (m) 15 & 16 Vict. c. 76, s. 109; 33 & 34 Vict. c. 77, s. 18 ; Reg. Gen. H. T. 1853, i. 44. (v) 15 & 16 Vict. c. 76, a. 111. (w) Chitty's Arch. 12th ed. 367. (a:) 15 & 16 Vict. <;. 76, s. 109. (y) 6 Geo. 4, c. 50, „. 34. (*) 15 & 16 Vict. c. 76, ss. 112, 113. TRIAL. 141 (6.) Obtaining a View for the Jury (a). Either party may apply by summons to a judge at Chambers, Applica- tor a view by the jury summoned for any trial ; and on the (^j^,. hearing of the summons each party is to name a shower for view, such view (6). The order when passed and entered should be left at the sheriff's offioe, together with a list of the jury, where it is special, and the jurymen have beeu struck (c). The summons for a view, and the order to be mads thereon, Deposit, must state the place at which the view is to be made, and the distance thereof from* the office of the Under-Sheriff. The sum to be deposited in the hands of the Under-Sherifi is £10 in case of a common jury, and £16 in case of a special jury, if such distance does not exceed five miles, and £15 in case of a common jury, and £21 in case of a special jury, if it is above five miles. If such sum is more than sufficient to pay the expenses of the view, the surplus will be forthwith returned to the solicitor or party who obtained the view. If such sum is not sufficient to pay such expenses, the deficiency is to be forth- with paid by such solicitor or party (d). (7.) The Brief (e). The plaintiff's brief will consist of a copy of all the pleadings Contents in the action, and (where evidence has been taken by affidavit) a copy of such evidence. The defendant's brief will consist of a copy of his own and the plaintiff's pleadings, and (where evidence has been taken by affidavit) a copy of his own and the plaintiff's evidence. A copy of any particulars that have been delivered in the action, of the notice of trial, of any notices to admit and to produce that have been given in the action, and of any ad- missions that have been made should accompany the brief. Copies of or extracts from documents which have been made evidence, or which will be put in evidence, or which will be used upon the trial, should also accompany the brief. Where the evidence is taken by the viva voce examination of witnesses in open Court, counsel should also be furnished with a concise (a) For forms, see Daniell's Forms, (i) Cons. Ord. XIJ. r. 37. 3rd ed. 424—426. (e) For forms, see Daniell's Forms, (b) Cons. Ord. XLI. r. 36. 3rd ed. 426—428. (c) Dan. Pr. 953. 142 ORDINARY PROCEEDINGS IN AN ACTION. Consent to advance of trial. Request of postpone- ment. Power of judge. Postpone- ment for parties to be added. statement in a narrative form of his client's case, and also with a statement of the material facts which each witness to be called can prove. Where the evidence is taken by affidavit this will be unnecessary ; but in that case the brief should be ac- companied by any necessary and proper observations. Where witnesses are to be cross-examined, it will often be useful to furnish counsel with a separate paper of notes or instructions for the cross-examination of particular witnesses. Where the papers sent to counsel are numerous they should be numbered consecutively in the top right-hand corner, and an index should accompany (/). (8.) Advancing and Postponing tlie Trial (g). The solicitors of the parties may consent in writing to the action being placed in the paper for trial before the day named in the notice of trial, and may apply to the Court for an order to that effect ; but otherwise it will not be placed in the paper until after the day named in such notice, unless an order be obtained for that purpose by motion on notice. Upon production to the Registrar of a request or consent signed by the solicitors for all parties, at the latest in the fore- noon of the day before the day the action is to be in the paper, it will be marked as standing over to a day to be named (A). The judge may, if he thinks it expedient for the interests of justice, postpone or adjourn the trial for such time, and upon such terms, if any, as he shall think fit (i). But the indulgence of postponing the trial ought not to be granted to the plaintiff, unless he has used due diligence, and has good and strong reasons for seeking a postponement (/). An action brought to a hearing in an imperfect state as to parties was allowed to stand over for the representatives of a deceased plaintiff to be added as parties, on payment by the other plaintiffs of the costs of the day (k). (/) Daniell's Forms, 3rd ed. 426, (i) Ord. XXXVI. r. 21. 427. (j) Steuart v. Gladstone, 7 Cn. D. (g) For forms, see Daniell's Forms, 394. 3rd ed. 428, 429. (£) Lydatt v. Martinson, 5 Ch. D. (h) Registrar's Regs., March, 1860, 780. (. 13. TKLAL. 143 (9.) Trial of the Action. A trial before a judge in the Chancery Division takes place Before a before a single judge (I) ; and a trial of a question or issue of ^"S 1 ^ fact by a jury at the sittings in London or Middlesex, or at the assizes, takes place before a single judge, unless it be specially ordered to be held before two or more judges (m). If, when the action is called on for trial, the plaintiff appears, Where and the defendant does not appear, then the plaintiff may prove d^noT' his claim, so far as the burden of proof lies upon him. If the appear, defendant appears, and the plaintiff does not appear, the de- Where fendant, if he has no counter-claim, will be entitled to judg- jj^jjj[ ment dismissing the action, but if he has a counter-claim then appear, he may prove such claim so far as the burden of proof lies upon him (n). Any verdict or judgment obtained where one party Setting does not appear at the trial, may be set aside by the Court or ment where a judge upon such terms as may seem fit, upon an application one party made within six days after the trial (o). appear. The formal mode of hearing the cause when all the parties p^c^ure appear upon its being called on, is this : the leading counsel for on hearing, the plaintiff opens the plaintiff's case, pointing out the matters in issue and the questions arising therefrom, and adduces his arguments in support of the plaintiff's case ; after which the plaintiff's evidence is read, and junior counsel for the plaintiff heard ; the statement and argument of the leading counsel for the defendant, the defendant's evidence, and the argument of his junior counsel, follow next; if there are several sets of defendants, their counsel and evidence are heard and read in the order in which the defendants'. names appear on the record : subject to the qualification that the counsel for the defendants who have the same interest as the plaintiff are heard im- mediately after the plaintiff's counsel ; the plaintiff's senior counsel is then heard in reply. When the evidence in chief is taken viva voce at the hearing, the plaintiff's witnesses are ex- amined after his counsel have been heard, and the defendant's witnesses after the defendant's counsel have been heard ; and the cross-examination and re-examination of any witness follow (I) 36 & 37 Vict. c. 66, s. 42. (o) Id. r. 20. See Bwrgoine v. (m) Ord. XXXVI. r. 7 ; Warner Taylor, 9 Ch. D. 1 ; and Seton, 4th v. Murdoch, 4 Ch. D. 750. ed. 18. (») Ord. XXXVI. it. 18, 19. 144 ORDINARY PROCEEDINGS IN AN ACTION. Number of counsel. Judge may direct facts to be tried before jury. Postpone- ment and adjourn- ment. Right of parties as to ques- tions of fact. Judgment. Where several distinct Entry of findings by associate. immediately upon his examination in chief ; and so, where a witness is cross-examined at the hearing upon his affidavit or deposition, $|ie cross-examination and re-examination follow im- mediately after «Bhe reading of the affidavit or deposition (p). If questions of fact are so severed from questions of law that they can be disposed of separately, upon the questions of fact only one counsel will be heard on each side ; but upon the questions of law two counsel will be heard (q). The Court or judge may, if it shall appear either before or at the trial that any issue of fact can be more conveniently tried before a jury, direct that such issue shall be tried by a judge with a jury (r). The judge may if he think it expedient for the interests of justice postpone or adjourn the trial for such time, and upon such terms, if any, as he shall think fit (s). In case of trial by jury, each party has a right to have the issues for trial submitted and left by the judge to the jury, with a proper and complete direction to the jury upon the law, and as to the evidence applicable to such questions ; and such right may be enforced by motion either in the High Court of Justice or in the Court of Appeal (£). Upon the trial of an action the judge may, at or after the trial, direct that judgment be entered for any or either party, or adjourn the case for further consideration, or leave any party to ' move for judgment. No judgment may be entered after a trial without the order of a Court or judge (u). In a trial before a judge with a jury in which there are several distinct issues, the judge may, without any consent, accept the verdict of the jury on those issues on which they are agreed, and discharge them upon the others, and judgment may be directed upon the causes of action upon which the jury have found, and a new trial may take place of the undecided issues (v). Upon every trial at the assizes, or at the sitting in London and Middlesex, where the officer present at the trial is not the officer by whom judgments ought to be entered, the associate will enter all such findings of fact as the judge may direct to be ( p) Dan. Pr. 844, 845. ( S - ■ (m) Ord. XL. t, 8." (*) Id. i, 7. JUDGMENT. 151 year from the time when the party seeking to set down the same first became entitled so to do (n). Where, at or after the trial of an action by a jury, the judge Applica- has directed that any judgment be entered, any party may, tlon *? without any leave reserved, apply to set aside such judgment judgment and enter any other judgment, on the ground that the judg- directed to ment directed to be entered is wrong by reason of the judge having caused the finding to be wrongly entered with reference to the finding of the jury upon the question or questions sub- mitted to them. Where at or after the trial of an action before a judge, the judge has directed that any judgment be entered, any party may, without any leave reserved, apply to set aside such judgment and to enter any other judgment, upon the ground that, upon the finding as entered, the judgment so directed is wrong. An application under this Rule is to be made to the Court of Appeal (o). Such application must not be made ex 'parte, but by motion on notice (p) ; and the notice should state the grounds for the motion and specify the relief sought. The motion for judgment should be made before the judge of Procedure ' the Chancery Division to whom the action is attached ; but ? n lno * 1 ™ whether this is so when there has been a trial of the action ment. before a judge at the sittings in London or Middlesex or at the assizes, quaere (q). In a recent case, however, in which a Chancery action was tried by a Middlesex special jury the motion was made before the judge of the Chancery Division. The notice must be served before the action is set down on the motion (r). If there is an address for service the notice may be _ served by being left at such address («) ; and in case of any de- fendant who has not appeared, it may be filed with the Master of the Supreme Court or the District Registrar, as the case may be (t). In case the notice has been served at the address for service, an affidavit of such service should be made : if it has been filed, a certificate of the filing should be obtained. (n) Ord. XL. r. 9. see S. C. on appeal, 3 Q. B. D. 19. . (o) Id. r. 4a. (0 Seton, 4th ed. 39. (p) Jones v. Davis, W. N. (1877) (s) Ord. XIX. -r. 6 ; Cons. Ord. 86. HI. rr. 2, 5. (2) Daniell's Forms, 3rd ed. 451. (t) Ord. XIX. rr. 6, 29 ; Dymwnd And see 39 & 40 Vict. c. 59, a. 17 ; v. Croft, 3 Oh. D. 5l2 ; Morton v. Hunt v. City of London Real Prop. Miller, Id. 516. , ■ • Co., Limited, 2 Q. B. D. 605; but V 152 ORDINARY PROCEEDINGS IN AN ACTION. Brief. Advancing or post- poning hearing. Unless the Court or judge give special leave to the contrary there must be at least two clear days between the service of the notice of motion and the day named in the notice for hearing the motion («). And the day named must be a day on which the Court sits ; but it need not be a motion day. Notice to defendants on Dec. 20th, that the Court would be moved on Dec. 22nd, was held invalid (1) because under Order LXI. r. 1, the Michaelmas Sittings end on Dec. 21st ; (2) because there were not two clear days as required by Ord. LIII. r. 4 ; and the defendants appearing were not allowed their costs (v). It is advisable that notices of motion for judgment should, if it be intended to mark them " short " (w), contain a statement to that effect, and also a statement that no further notice will be given of their having been so marked. Such statements will dispense with the necessity for giving further notice that the motion has been marked short. Motions for judgment may be marked short on the production of counsel's certificate, and will then be placed in the paper on the first short cause day after the day for which notice is given (x). It seems to be the proper course to bring on short actions for hearing on motion for judgment, as no pleadings ought in general to be delivered in such actions, and thus no notice of trial can be given (y). < Motions for judgment are not brought on as ordinary motions, but are set down in the cause book (2) or, if the action is pro- ceeding in a district registry, with the District Registrar. The present practice is to serve notice of motion for judgment before setting down the action on the motion, and a copy of the notice of motion must be produced to the Registrar on setting down (a). The brief on the hearing of the motion for judgment will consist of a copy of the pleadings (if any) in the action, of any evidence , t which may have been filed in support of or in opposi- tion to the motion, of such exhibits and other documents as may be necessary, and of any necessary and proper observa- tions (6). As to advancing or postponing the hearing of the motion, see Chapter IX. section 8 (p. 142). («). Ord. LIII. r. 4. (v) Daubney v. ShutUeworth, 1 Ex. D. 53. (w) See p. 139. (x) Daniell's Forms, 3rd ed. 452 ; Judges' Notice of April, 1876 ; Seton, 4th ed. 39. (y) Daniell's Forms, 3rd ed. 455. (z) Judges' Notice, supra, (a) Seton, 4th ed. 39. (A) Daniell's Forms, 3rd ed. 456. JUDGMENT. 153 Upon a motion for judgment, the Court may, if satisfied that Power of it has before it all the materials necessary for finally determin- '!'* °? ing the questions in dispute, or any of them, or for awarding judgment. any relief sought, give judgment accordingly, or may, if it shall be of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand, over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made as it may think fit (c). (2.) *Entry of Judgment (d). Except where the judgment has been pronounced by the Documents rGQiiirtiil Court in the Chancery Division, the judgment will be prepared an d pro -' by the party or his solicitor. In this case, the party or his cedure on solicitor must produce to the proper officer two copies of the judgment. judgment, a copy of the whole of the pleadings in the action, except of any pleading of which a copy has already been delivered on entering any previous judgment in the action, and the affidavit, notice, order, certificate, report, return, award, or other document showing the right of the party to enter the judgment ; this document will be examined by the officer, and if it be regular and contain all that is by law required, he will proceed to enter the judgment (e). When the action is pro- ceeding in London, the judgment is entered by the Eegistrar of the Chancery Division ; but when it is proceeding in a dis- trict registry the judgment must be entered there. Where such a judgment is entered in London the course of proceed- ing is as follows : the party or his solicitor files a copy of the pleadings, if any, in the action in the Central Office, where a memorandum of such filing is made on the judgment ; the copies of the judgment, and the document upon which judg- ment is entered, are then taken to the Clerk at, the order of course seat in the Eegistrar's Office, by whom the documents are examined, and if found correct the copies of the judgment are marked as examined ; the Eegistrar of the day for signing certificates of sale and transfer will then pass the judgment by (c) Ord. XL. r. 10. Practice of Signing Judgment, 99- (d) For forms, see Daniell's Forms, 131. 3rd ed. 457—465. And see for (e) Daniell's Forms, 3rd ed. 462 ; forms of judgments, Walker, on the Ord. XLI. rr. 1, 4, 5. 154 ORDINARY PROCEEDINGS IN AN ACTION. putting his initials to it and affixing his seal to the duplicate, and the judgment will then be entered at the entering seat, the duplicate being left with the entering clerk (ee). Where the judgment has been pronounced by the Court in the Chancery Division a note of it is taken down by the Regis- trar in attendance, who prepares a draft of the judgment, copies Bespeaking of which are issued to the solicitors of the parties. Within ju gmen . geven ,j a y g a ft er the judgment is pronounced, one of the parties must bespeak the judgment, and leave with the clerk to the Registrar who was in Court when judgment was pronounced, his counsel's briefs and such other documents as may be required by the Eegistrar for the purpose of enabling him to draw up the same (/); otherwise the Registrar may decline to draw up the judgment, without the leave of the Court {g). The seven days are (except as to judgments delivered in vacation) to be computed exclusive of vacatiors (A). The word "party" means any person appearing at the hearing of the action or the ap- plication, as the case may be (i). Papers to The following documents must be left with the Registrar on be left with k eS p ea ]j m g the judgment: The senior counsel's brief; any documents or evidence required to be produced to the Court (J); office copies of any affidavits which have been read at the trial and any exhibits therein referred to (k). If any documents have been proved at the trial, vivd voce or by affidavit, the order authorising them to be so proved, with the office copies of the affidavits (if any) and the documents proved (I). When- ever any fund in Court is to be dealt with, the certificate of the chief clerk of the Paymaster-General, and, if the funds are re- strained by any order, the restraining order, or an office copy thereof (m). Where payment out of Court is ordered to legal personal representatives, the probate, or letters of administra- tion, stamped for 'a sufficient amount (ji). Orders for payment of specified sums to the Receiver-General of inland revenue, for legacy and succession duty, will not be drawn up until the (ee) Seton, 4th ed. p. 12. r. 15. (/) Cons. Ord. I. rr. 20, 21. (i) Id. r. 27. (g) Id. r. 22. (I) Id. r. 28. (A) Prelim. Cons. Ord. r. 10, art. (m) Id. i. 16; Ord. 12th Feb., 11. 1863. (») H. (n) Registrars' Regs., March, 1860, (j) Registrars' Regs., March, 1860, r. 17. JUDGMENT. 155 calculation has been examined at the legacy and succession duty department, and a certificate obtained of the proper amount payable for duty (o). If the Court fees are payable according to the lower scale (except orders on petition or sum- mons, other than summons originating" proceedings in cham- bers), a copy of the certificate for paying the lower scale of Court fees, duly marked by the Master of the Supreme Court (p). If any party or person served does not appear at the hearing, an affidavit of service on such party or person (q). In addition to the papers and documents above mentioned others may be required by the Registrar under particular circumstances (r). At the time of delivering out the draft of any judgment Appoint- which requires to be settled by the Registrar in the presence of m ™, t t0 the parties, the Registrar will deliver out to the party on whose application the draft has been prepared, an appointment in writing of a time for settling the same (s). A copy of such appointment must be served on the opposite party one clear day at least before the time fixed thereby for settling the draft judgment; and the party serving such copy and the party so served are to attend such appointment, and to produce to the Registrar their briefs and such other documents as may be necessary to enable him to settle the draft (t). Service of such appointment is to be effected by leaving a copy thereof at the place for service of the party to be served, or by transmitting a copy thereof by the post to such party at such place for service (it). At the time fixed for settling the draft, the original appoint- Proof of ment, together with a memorandum indorsed thereon of the serT1 . oe oi ' ° . . appomt- service of a copy thereof on the opposite party, and signed ment. by the person by whom such service was effected, is to be delivered to the Registrar, in order that he may be satisfied that service has been duly effected ; but the Registrar may require such service to be verified by affidavit (v). If any party fails to attend the Registrar's appointment for Power of settling the draft of, or passing any judgment, or fails to pro- j,, 6 ^^ duce his briefs or such other documents as the Registrar may absence. require to enable him to settle such draft, or pass such judg- (o) Registrars' Keg., March, 1860, 870—873. r. 18. (s) Cons. Ord. I. r. 23. (y) Id. r. 20. (0 H. x. 24. (g) Id. r . 21. («) Id. r. 25. (r) See further hereon, Dan. Pr. (v) Id. v. 26. 156 ORDINARY PROCEEDINGS IN AN ACTION. ment, the Eegistrar may proceed to settle the draft, or pass the judgment in his absence ; and the Eegistrar is to be at liberty to dispense with the production of counsel's briefs, and to act upon such evidence as he may think fit of the actual appear- ance by counsel of the party failing to attend or to produce such documents or papers as aforesaid, or may require the matter to be mentioned to the Court (w). Appoint- The Eegistrar may adjourn any appointment for settling the ™ e ^™y draft of, or passing any judgment, to such time as he may journed. think fit ; and the parties who attended the appointment must attend such adjournment without further notice (x). Registrar The Eegistrar may, notwithstanding the preceding rules, in aiuf pass? 6 case te tlul ik Jt expedient, settle and pass the judgment without judgment making any appointment for either purpose, and without notice Sicf to any party (y). Applica- If> u P on perusing the minutes, or draft of the judgment, it tion to vary appears that anything is doubtfully expressed, or contrary to the plain sense and meaning of the Court, or that anything has been omitted which ought to have been inserted, and the Eegistrar refuses to make an alteration in them, an application must be made to the Court to vary the minutes. The ap- plication is usually by motion on notice. The notice must specify the particular matter to be added or altered, and the Eegistrar should be previously informed of the application. Sometimes, at the hearing, leave is given that the cause be put in the paper " to be spoken to upon the minutes : " in which case, the application to have the cause put in the paper should be made within a fortnight at the utmost. Where a variation is made by the Court in the minutes or draft settled by the Eegistrar, the variation is embodied in the judgment originally made, and, except when the costs of the application are ordered Alterations to be paid, no order is drawn up (z). The Eegistrar may, by by consent. conse nt, allow such alterations to be made in the judgment as his knowledge and experience teach him would be sanctioned by the Court if mentioned thereto (a). After the judgment has been settled by the Eegistrar, it cannot be altered in the absence of any of the parties interested (b). (w) Cons. Ord. I. r. 28. (a) Davenport v. Stafford, 8 Beav. (a;) Id. r. 31. 503. [y) Id. i. 32. (6) Major v. Major, 13 Jur. 1. (z) Dan. Pr. 874, 875. JUDGMENT. 157 When the draft judgment has been settled by the Registrar, Appoint- he names a time in the presence of the several parties, or else ment *° delivers out an appointment in writing, of a time for passing the judgment ; and, in the latter case, such appointment must be served on the opposite party, in like manner as an appoint- ment to settle a judgment ; and the original appointment, to- Proof of gether with a memorandum indorsed thereon of the service of service, a copy thereof on the opposite party, and signed by the person by whom such service has been effected, must be delivered to the Registrar, in order that he may be satisfied that service has been duly effected ; but the Registrar may require such service to be verified by affidavit (c). If the time is fixed verbally, it must be by the Registrar himself, and in the presence of the parties (d). The judgment, having been prepared from the draft, is Examina- delivered, together with the draft, to the party bespeaking it : re turn of by whom it should be carefully compared with the draft. If judgment, the party having thus received the original judgment, neglects to return it to the Registrar, in order that it may be passed and entered, he will, on motion, of which notice must be given, be ordered to do so (e). At the time appointed the solicitors of the various parties Passing attend at the Registrar's Office, and examine the engrossment ' of the judgment with their copies of the draft ; and, if no ob- jections remain undisposed of, the engrossment and draft are left with the Registrar's clerk ; and the judgment is said to be " passed '' when the Registrar has inserted his initials in the margin at the foot of the last page, as an authority to the clerk of entries to enter it in the proper book. Rules 28, 31, and 32, of Cons. Ord. I., apply as well to passing as to settling a judgment (/). Before the judgment is passed, a copy of the pleadings in the Copy plead- action must be filed with the Master of the Supreme Court or ^|^_ the District Registrar, as the case may be, and a memorandum of such filing made on the engrossment of the judgment (g). Judgments obtained in Michaelmas and Hilary sittings, and Entry of the vacations following, should be entered before the first day JU gmen " (c) Cons. Ord. I. r. 27. (e) Dan. Pr. 876. (d) The London and County Gene- (/) See supra. ral Agency Association, Limited, Ex {g) Seton, 4th ed. p. 33. parte Pvttrook, 17 W. R. 1075. 158 ORDINARY PROCEEDINGS IN AN ACTION. Date of judgment. Applica- tion to vary judg- ment. Fees. Getting back papers. Orders to be acted on by Chan- cery Pay- master. of Michaelmas Sittings following ; and judgments obtained in Easter and Trinity Sittings, and the vacations following, should be entered before the first day of the ensuing Easter Sittings ; otherwise an order must be obtained to enter them nunc pro tunc. Such order may be obtained on motion or petition of course ; and, when passed, must be left with the entering clerk, at the Kegistrar's office, as his authority to enter the judgment (h). If the judgment is pronounced by the Court or a judge in Court, the entry of the judgment will be dated as of the day on which such judgment is pronounced, and the judgment will take effect as from that date ; in other cases the judgment will be dated as of, and take effect from, the day on which the re- quisite documents are left with the proper officer for the purpose of entry (t). A consent to a judgment, if given by mistake, may be with- drawn before the judgment is passed and entered, and application may be made to the Court to vary the judgment ; but if the judgment has been passed and entered, it cannot be varied on the ground of mistake, except for reasons sufficient to set aside an agreement (f). On entering a judgment a fee of 10s. on the lower, or £1 on the higher scale is payable by a stamp impressed upon or adhesive to the judgment (k). The judgment and other papers and documents left with the Eegistrar may usually be obtained by the solicitor having the carriage of the judgment, from the Registrar's clerk on the second day after the judgment has been left for entry. For regulations as to orders to be acted upon by the Chancery Paymaster, see Part VI., Chapter on " Proceedings in the Chan- cery Pay Office." (3.) Rectifying and Adding to Judgments (I). After judg- passed and After the judgment has been passed and entered it cannot be entered. varied in any material point except on a new trial or appeal, (A) See Dan. Pr. 877, 878. (i) Ord. XLI. rr. 2, 3. (j) B6U v. Jesse, 3 Ch. D. 177 ; Attorney-General v. Tomline, 7 Ch. D. 388. (Jc) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord as to Fees, April, 1876, Sched. (V) For forms, see Daniell's Forms, 3rd ed. 465, 466. JUDGMENT. 159 unless the parties consent (m) ; but clerical mistakes, or errors arising from any accidental slip or omission may be corrected upon motion or petition (ra) ; and are sometimes corrected by the Registrar upon the application of the solicitor having the carriage of the judgment, without any order. This frequently happens in the case of judgments to be acted upon by the Chancery Paymaster, who often requires or suggests that some little alteration should be made (nn). As a rule the Court will not correct a judgment in which the Where error is apparent, if the proposed alteration would involve new ^^rent directions (o) ; but if it appears that it would be expedient that p.^^ further accounts should b6 taken or further inquiries made, the accounts or judge may order the same to be taken and made accord- in< l llmea ' ingly (p). An application under this rule is usually made by summons at Chambers. Any person served with notice of a judgment under 15 & 16 15 & 16 Vict. c. 86, s. 42, r. 8 (q), or under 31 & 32 Vict. c. 40, s. 9 (r), J^ C g 2 86 '• may within one month after such service, apply to the Court Yict. c. 40. to add to the judgment. (4.) Registration of Judgments (s). No advantage is now gained by registering a judgment in the When Common Pleas Division (i) ; but if the judgment debtor is necessai 7- possessed of lands in Middlesex or Yorkshire or the county of the town of Kingston-upon-Hull, it will be necessary, if it is desired that the judgment should operate as a charge upon such lands, to register a memorial of such judgment in the proper registry, otherwise a purchaser without notice will not be bound by such judgment. And a memorial of any judgment or order having the effect of a conveyance, as in the case of a vesting order under the Trustee Act, 1850, must, if it affects lands in either of the above-mentioned places, be likewise registered in the proper registry (u). (m) King v. Savery, 2 Jur. 431. (q) See p. 15. (m) Cons. Ord. XXIII. r. 21. (r) See Part II. Chapter 1. (nn) See Chan. Funds Cons. Rules, (s) For forms, see Daniell's Forms, 1874,r. 16. Part VI. Chapteron "Pro- 3rd ed. 467. eeedings in the Chancery Pay Office." (t) See 27 & 28 Vict. c. 112, s. 3. (o) Id. ; BrookfieU v. Bradley, 2 (u) 2 & 3 Anne, c. 4 ; 5 & 6 S. & S. 64. Anne, c. 18 ; 6 Anne, c. 35 ; 7 Anne, (p) Cons. Ord. XXXV. t. 19. u. 20 ;' 8 Geo. 2, u. 6. . 16° ORDINARY PROCEEDINGS IN AN ACTION. Memorial. The memorial for registration must be engrossed on parch- ment and must be stamped with' a 2s. 6d. stamp. A certificate of the entry of the judgment, signed by the Master of the Supreme Court, is written at the foot of the memorial, and the '. signature of such clerk must be verified by affidavit. CHAPTER XI. FURTHER CONSIDERATION (a). Where accounts or inquiries have been directed, the judg- When ment, at the original hearing, adjourns the further consideration neceBSar y- of the action ; and in order to obtain a final judgment, the action must be set down to be heard on further consideration. The action cannot, however, be set down until the accounts or inquiries directed by the judgment have been taken or made, and the Chief Clerk's certificate of their result filed; or a special certificate obtained, showing why the accounts and inquiries, or any of them have not been proceeded with (b). When any action has, at the original or any subsequent Setting hearing, been adjourned for further consideration, it may, after £ ow ? for eight day s and wit hin fourteen days from trie filing -nf t.ha Ohip.f Clerk's certificate, be set down for further consideration ^on the writtenrequest of the solicitor for the plaintiff or party having the conduct ot tne action ; and after the expiration of such fourteen days it may be set down on the written request of the solicitor for +Vy pi p m tiff, or for any other party- T he action when set down, is not to be put in the paper f or ten da ys, and to be so marked (c). By consent , however, the action may be set down at any time after the filing of the certificate. The written request is left at the order of nourse a^ a:t in the Regis- trar's office. The judgment or order adjourning further con- sideration, or an office copy thereof, and an office copy of the Chief Clerk's certificate, or a memorandum of the date when such certificate was filed, indorsed on the request by the Clerk of Reports, must be produced to the Registrar's clerk ( d). Notice of setting down the action mast be given to the other Notice (a) For forms, see Daniell's Forms, (c) Cons. Ord. XXI. r. 10. 3rd ed. 682—686. {d) Registrar's Regs., 15th March, (b) Dan. Pr. 1228. 1860, ,. 9. 162 ARY PROCEEDINGS IN AN ACTION. Marking action as "short." Where matter originated in Cham- bers. Papers for use of Court. parties,' including persons served with notice of the judgment arid-who have obtained leave to attend the proceedings, at /least six days before the day for which the same may be marked for further consideration (e). An affidavit of service should be made and an office copy procured. , An action may be marked for hearing on further consideration as a short action, upon the production of the certificate of the plaintiff's counsel that the action is fit to be so heard, without the consent of the solicitors for any of the defendants ; but it will not be so marked for any day, until after the expiration of the ten days above mentioned ; unless by censent of all parties (/). Unless so marked by consent, notice that the action has been marked for hearing as " short " should be given to the solicitors for the other parties, by the plaintiff's solicitor (g). If the matter has originated in Chambers, it may, after the expiration of eight days, and within fourteen days from the filing of the Chief Clerk's certificate, -be brought on for further con- sideration by a summons to be taken out by the plaintiff or party having the conduct of the matter ; and after the expiration of such fourteen days, by a summons to be taken out by any other party ; and such summons must be served on the other parties six clear days before the return thereof (h). By consent, however, the summons may be made returnable immediately after the certificate has been filed. Upon the return of the summons the matter will be heard on further consideration in Chambers, or, if there is a question which the judge thinks ought, or the parties desire, to be argued by counsel, it will be adjourned into Court. Where the hearing on further consideration is adjourned into Court, a note signed by the Chief Clerk to that effect is left with the clerk at the order of course seat in the Registrar's office; and when the matter has been set down, notice thereof should be given to the other parties, by the solicitor at whose instance it is set down (i). At least one clear day before the hearing on further con- sideration the solicitor for the party who has set down the («) Cons. Ord. XXI. »-. 10 ; Seton, 4th ed. 42. (/) Registrar's Kegs. , 15th March, 1860, r. 10. (g) Mohsworth v. Snead, 11 W. R. 934. {h) Regs., 8th Aug., 1857, r. 18. (»") Dan. Pr. 1234, 1235; Seton, 4th ed. 43. FURTHER CONSIDERATION. 163 action or matter must leave with the usfr fir fnr f hn uga tiff thr ^S ourt a copy 01 tne judgment or order -which directs the ad- journment oi further consideration, of the Chief Clerk's certifi- cate made in pursuance thereof, and of any intermediate orders (such as orders adding to the judgment and orders to revive or carry on the proceedings), or certificates, and in cases where minutes of the proposed order on further consideration have been prepared, two copies of such minutes. The brief of each party on further consideration will consist Brief, of the judgment or order made at the former hearing, the Chief Clerk's certificate, and ar*y intermediate orders or certificates ; but no part of the schedules to the certificate, or of any account filed therewith, should be included, unless the special circum- stances of the case may render the same necessary. The brief should be accompanied by such observations as may be deemed advisable, and by the brief and other papers held by counsel at the former hearing or hearings (/). If any affidavits material to the further consideration have been filed since the certifi- cate, they should be briefed and follow the certificate (&). If any party or person served with notice of the action or Proof of matter having been set down for hearing on further considera- sar/lce ln ° ° case ot tion does not appear at the hearing, an office copy of the affidavit non-ap- of service must be produced to the Kegistrar before the rising P earanoe - ^ of the Court (Z). SIf it is intended to deal with the proceeds pi any estates Service of sold under the judgment, the purchaser must be served, unless notl( f on it appears on the proceedings that he has obtained his convey- ance, and if he does not appear, an affidavit not only of service, but that his conveyance has been delivered to him, must be produced. If the purchaser has obtained his conveyance he should not appear, as he will not be allowed his costs, except under special circumstances (I). If any stop order affects the funds to be dealt with, the Service on person who obtained it must be served with notice, and if ? erso ? ° he doe8 not appear, an affidavit of service must be pro- tained a duced(Z). stop order. A person or party served should also be prepared with an Affidavit of affidavit that he has been served, in case the party serving the navin | been notice should not appear. (;") Dan. Pr. 1236. (0 See Seton, 4th ed. p. 42, and (Jc) Daniell's Forms, 3rd ed. 685. cases there cited. m 2 164 ORDINARY PROCEEDINGS IN AN ACTION. Persons found to be inte- rested may appear. Original judgment will not be altered. New facts. Further accounts and in- quiries. Money of married Non-ap- pearance or neglect of solicitor. Drawing up, pass- ing, and entering order. Any person who has been found by the certificate to be interested in the subject-matter of the suit : such as a creditor whose claim has been allowed : has a right to appear upon the hearing of the action or matter for further consideration, to protect his own interest ; and he may do so, without previously obtaining leave to appear, provided he desires to take advantage of nothing but what appears in the certificate (m). Creditors however, do not usually so appear, and would not be allowed their costs of so doing except under very special circumstances, if at all. The Court will not, on further consideration, alter, or add to the original judgment ; nor will it permit facts to be brought before it, in order to ground upon them a direction not war- ranted by the original decree (n). Any facts, however, which have occurred since the original judgment, and have altered the situation of the parties, or affected their rights in the sub- ject-matter, and which have not been brought before the Court by supplemental proceedings, and are not directly in issue in the action or matter, may be proved by affidavit at the hearing on further consideration (o) ; and when circumstances have arisen rendering it necessary, further accounts and inquiries may be directed to carry out the judgment ( p). If any money belonging to a married woman is to be dealt with on further consideration, the Court will receive proof by affidavit of all such matters as are necessary to enable the Court to order payment thereof (q). If the hearing cannot be conveniently proceeded with, in consequence of the solicitor for any party having neglected to attend personally, or by some proper person, or of his having neglected to deliver the proper papers for the use of the Court, such solicitor may be ordered personally to pay to any of the parties such costs as the Court may think fit to award (r). The order made on further consideration is drawn up, passed, and entered in the same way as the original judgment («). The party who bespeaks the order must leave with the clerk of the (m) Dan. Pr. 1236, and cases there cited. (») W. 1229, 1236. (o) 13 & 14 Vict, cr 35, ». 28. (p) Fleming v. East, 18 Jur. 1112 ; Howard v. Chaffers, 11 W. R. 585 ; Game v. Brancker, 17 W R. 837. (a) 13 & U Vict. c. 35, b. 28. («•) Cons. Ord. XXI. rr. 11, 12. (s)' See Chapter X. Section 2, p. 153. FURTHER CONSIDERATION. 165 Registrar in attendance in Court on the day the order was pro- nounced, counsel's brief; the original judgment, or the last order on further consideration, and any subsequent orders to revive or carry on the proceedings, or office copies thereof; an office copy of the Chief Clerk's certificate ; office copies of affi- davits and any exhibits, documents, or other evidence used at the hearing ; and a consent brief for any purchaser, or an affidavit of notice to him, and that the conveyance has been executed and delivered to him (t). If any fund in Court is dealt with, the Paymaster-General's certificate, and, if the funds are restrained by any osder, the restraining order, or an office copy thereof must be left (w). If payment is ordered to legal personal representatives, the probate or letters of administra- tion, stamped for a sufficient amount, must also be left (v). The fee payable on drawing up and entering the order is 10s. Fees. on the lower and £1 on the higher scale, payable by a stamp impressed upon or adhesive to the order (w). (0 Cons. Ord. I.r. 20 ; Registrar's (») Id. l. 17. Kegs., 15th March, 1860, rr. 29, (w) Ord. as to Court Fees, Oct., 30. 1875, Sehed. ; Ord. as to Fees, April, (u) Registrar's Kegs., 15th March, 1876, Sched. 1860, i. 16. CHAPTER XII. EXECUTION. (1.) In General. On judg- A judgment for the recovery or payment of money may be "anient of- enforced (1) by a writ of fieri facias ; (2) by a writ of elegit; money. (3) by the attachment of debts due to the judgment debtor ; (4) by an order charging with the amount of the judgment debt any Government stock, funds, or securities, or any stock or shares of or in any public company in England, standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, or in which the judgment debtor has any interest, whether in possession, remainder, or reversion, and whether vested or contingent ; (5) by a writ of sequestra- tion ; (6) by committal to prison for a term not exceeding six weeks (a). On judg- A judgment for the recovery or for the delivery of the recovery possession of land may be enforced by writ of possession (b). of land. A judgment for the recovery of any property other than On judg- i an( j or mone y mav be enforced : (1) By writ for the delivery recovery of of the property ; (2) by writ of attachment ; (3) by writ of ofteTthan se( l uestratio11 ( c )- land or A judgment for the payment of money into Court may be money. enforced by writ of sequestration, or in cases in which attach- On judg- men t is authorised by law (d) by attachment (e). payment of A judgment requiring any person to do any act other than CourT 111 * the payment of money, or to abstain from doing anything, may On judg- be enforced by writ of attachment, or by com mittal I f). And [a) Ord. XLII. r. 1 ; Daniell's ( execution may issue in manner following : (1) Against any property of the partners as such. (2) Against any person who has admitted on the pleadings that he is, or has been adjudged a partner. (3) Against any person who has been served, as a partner, with the writ of summons, and has failed to (m) Ord. XLII. rr. 9, 10 ; R. 17 rr. 11, 12. of June, 1876. (n) Ord. XXXV. r. 3. (mm) Ord. II. r . 8 ; Ord. XLII. (o) Ord. XLII. ,-. 21. EXECUTION. 169 appear (p). If the party who has obtained judgment claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court or a judge for leave to do so ; and the Court or judge may give such leave if the liability be not disputed, or if such liability be disputed, may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined (q). By 7 Geo. 4, c. 46, s. 13, it is provided that upon any Execution judgment obtained against any public officer of any corporation u , nder . ^ or co-partnership carrying on business under that. Act, execu- . 46. ' tion may be issued against any member or members thereof for the time being ; and that, if such execution prove ineffectual, execution may by leave of the Court be issued against any person or persons who was or were a member or members of the corporation or co-partnership at the time when the en- gagement upon which such judgment was obtained was entered into, or became a member before such engagement was exe- cuted, or was a member at the time of judgment obtained; but such leave is not to be granted after the expiration of three years next after any such person or persons shall have ceased to be a member or members of such corporation or co-partner- ship. The application for leave must be made by motion upon notice to the person sought to be charged. By 7 Win. 4 & 1 Vict. c. 73, s. 24, a judgment or order Execution obtained against the public officer of a company constituted under 7 under that Act, has the same effect against the persons, pro- l Vict. perty, and effects of the individual existing or former members 0l ^ 3 - of such company, as if such judgment or order had been ob- tained in a proceeding to which all such members had been parties, and execution may be issued accordingly ; but when the extent per share of the liability of individual members is limited, no execution can be issued against an individual member for a greater sum than the residue of the amount for which he is liable in respect of the share or shares held by him. By 8 & 9 Vict. c. 16, s. 36, it is enacted that if execution has Execution been issued against the property and effects of a company in- un( !? r 8 & corporated under that Act, and there cannot be found sufficient c. 16. (p) Ord. XLII. r. 8. (q) Id. c. 170 ORDINARY PROCEEDINGS IN AN ACTION. •whereon to levy such execution, execution may, by leave of the Court, be issued against any of the shareholders to the extent of their shares respectively in the capital of the company not then paid up ; and for the purpose of ascertaining the names of the shareholders and the amount of capital remaining to be paid upon their respective shares, the person entitled to the execution may, at all reasonable times, inspect, without a fee, the register of shareholders kept by the company. The ap- plication for leave to issue execution is to be made by motion, upon notice to the person sought to be charged. 19 & 20 There are no similar provisions to the above contained in the 25& 26 47 ' Joint Stock Com P anies Acts of 1856 and 1862 - Vict. c. 89* At law, it was held under the old practice, that, upon a Qucere as judgment obtained against a company, or the public officer of Bractice" 1 a com P an y> execution could not issue against a shareholder under 7 therein without a scire facias being issued ; but in equity the c 46 7 practice was, upon an application under 8 & 9 Vict. c. 16, s. 36, Win. 4 & 1 for leave to issue execution, to order execution to issue unless and 8°& 9' cause were shown to the contrary by a certain day. It is ap- Viot. c. 16. prehended that under the new practice execution may be issued against a shareholder or a member of a company con- stituted under 7 Geo. 4, c. 46, 7 Wm. 4 & 1 Vict. c. 73, or 8 & 9 Vict. c. 1 6, upon a judgment recovered against the company or a public officer thereof, without any scire facias, or writ of summons, which seems to have taken the place of a scire facias, the leave of the Court being obtained in those cases in which it is necessary that leave should be obtained (r). In a recent case, however, writs of scire facias were issued against the share- holders of a company whose special Act incorporated the 8 & 9 Vict. c. 16 (s). Fees. On issuing a writ of execution a fee of 5s. on the lower and 10s. on the higher scale is payable by a stamp impressed upon the praecipe (t). (?•) Daniell's Forms, 3rd ed. 689 ; 350. and see 36 & 37 Viet. c. 66, s. 25 (t) Ord. as to Court Fees, Oct., (11) ; Ord. XLII. r. 21. 1875, Sched. ; Ord. as to Fees, («) Kipling v. Todd, 3 C. P. D. April, 1876, Sehed. EXECUTION. 171 (2.) Service of the Judgment (u). Before issuing a writ of execution a copy of the judgment or Whenjudg- order must be served upon the person against whom or against ™* n * need whose property it is intended to issue execution, except in the served. following cases: — (1) Writs of fi. fa. and elegit upon a judg- ment or order for the payment or recovery of money (v). (2) A writ of possession on a judgment for the recovery of the possession of land (w). (3) A writ of delivery on a judgment for the recovery of property other than money or land (x). Every judgment or order requiring a person to do an act. Judgment must state the time, or trie time after service of such judgment ™ °Jj r ? * or order, within which the act is to be done (y). If, however, a person the judgment or order omits to fix a time, the Court will upon j^. au , motion, of which notice must be given, make a supplemental order fixing the time ; or if the defective order was made in Chambers, the application is made by summons. Such supple- mental order must be indorsed and served in like manner as the copy for service of an original judgment or order (z). If the judg- ment or order names a specific day for doing the act, it must be served before the day named ; if not so served, an applica- tion must be made by motion or summons for an order enlarg- ing the time ; and such further order must be indorsed and served like an original order (a). Upon the copy of the judgment or order to be servgd upon Memoran- the person required to obey the same, there must be indorsed r", m t0 . a memorandum to the effect that if such person neglect to on copy obey the judgment, or order, by the time therein limited, he BerveJ - will be liable to have his property sequestered for the purpose of compelling him to obey the same judgment, or order ; and that he may also be liable to be arrested and committed to prison (b). If the service is to be made on a peer, or member of the House of Commons, or on a corporation aggregate, the reference to arrest and committal is omitted. The service of the judgment or order must (unless otherwise Mode of authorised by the Court) be personal; and is effected by (u) For forma, see Daniell's Forms, Ord. Jan., 1870, r. 1. 3rd ed. 690—692. («) Dan. Pr. 904. (■») Ord. XIII. r. 15. (a) Id. (w) Ord. XLVUI. r. 1. (&) Cons. Ord. XXIII. r. 10 ; Ord. \x) Ord. XLIX Jan., 1870, r. 1. (y) Cons. Ord. XXIII. r, 10 ; service. 172 ORDINARY PROCEEDINGS IN AN ACTION. delivering to, and leaving with the person required to do the act a true copy of the judgment or order properly indorsed, at the same time producing and showing to the person served the original as passed and entered, or an office copy thereof sealed with the seal of the Report Office, and signed by one of the Masters of the Supreme Court (c). Substituted The Court will sometimes allow substituted service. The service ' order is obtained ex parte on motion, or, in the case of proceed- ings in Chambers, by summons. The affidavit in support should state the efforts which have been made to effect personal service, and why personal service cannot be effected ; also the mode of service proposed to be adopted. If the order is made, a copy thereof must be served with the copy of the judgment or order (c). (3.) Application for Leave to Issue Execution (d). Six years As between the original parties to a judgment, execution allowed to m j ssue at a time w ithin six years from the recovery of the issue exe- •> J cution. judgment (e). Applica- Where six years have elapsed since the judgment, or any *J™, f 'f„„ change has taken place by death or otherwise in the parties SIX years or o ■*■ ** change in entitled or liable to execution, the party alleging himself to be parties. entitled to execution may apply to the Court or a judge for leave to issue execution accordingly. And such Court or judge may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties, shall be tried in any of the ways in which any question in an action may be tried. And in either case such Court or judge may impose such terms as to costs or otherwise, as shall seem just (/). Applica- If judgment has been obtained against partners in the name of pre- °f t ^ le fi rm > an d * ne P^ty wno h as obtained judgment claims to sumed De entitled to issue execution against any other person as being pa a member of the firm, and such other person has neither admitted on the pleadings that he is, nor has been adjudged to be a partner, nor has been served as a partner with the writ of summons and has failed to appear, such party so claiming to be (c) Dan. Pr. 905. (e) Ord. XLII. r. 18. (d) For forms, see Daniell's Forms, (/) Id. r. 19. 3rded. 693-696. EXECUTION. 173 entitled to issue execution may apply to the Court or a judge for leave so to do ; and the Court or judge may give such leave if the liability be not disputed, or if such liability be disputed, may order that the liability of such person be tried and deter- mined in any manner in which any issue or question in an action may be tried and determined (j£ An order that the executors of a plaintiff who had recovered c. 16. judgment and then died, should be at liberty to issue execution, Leave given was made on motion ex parte, but without the costs of the t (n ^ x ^ u " application (i). plaintiff. (4.) Application to Stay Execution (/). The Court or a judge may stay execution either at the time Power of of giving judgment or afterwards (&). Court or An appeal will not operate as a stay of execution or of proceed- T f ings under the decision appealed from, except so far as the appeal. Court appealed from, or any judge thereof, or the Court of Appeal may so order ; and no intermediate act or proceeding will be invalidated, except so far as the Court appealed from may direct (I). The application for a stay of execution must be made in the first instance to the Court appealed from (m), by motion on notice («). fa) Ord. XLII. r. 8. (Z) Ord. LVIII. ,-. 16. (h) Id. r. 7. H Id. r. 17. See Att.-Qen. v. (s) Mercer v. Lawrence, 26 W. R. Swansea Improvement Co., 9 Ch. D. 506. 46 ; but see Wilson v. Church, W. (j) For forms, see Daniell's Forms, N. (1879), 90. 3rd ed. 696, 697. (») Rep. of Peru v. Weguelm, 24 (*) Ord. XLII. r. 15. W. R. 297. 174 ORDINARY PROCEEDINGS IN AN ACTION. Jurisdic- tion of Court of Appeal. Pending appeal to House of Lords. Applica- tion on ground of new facts. The Queen's Bench Division refused a rule nisi for a new trial. The plaintiff then moved the Court of Appeal for a rule nisi on the same grounds, and it was granted. The rule as drawn up contained an order for the stay of proceedings. On motion to set aside so much of the rule as ordered a stay, it was held that the Court of Appeal has no jurisdiction to grant a stay, except on appeal from a refusal of such an order (o). An order was made to stay proceedings under a decree for payment of money, pending an appeal to the House of Lords, on the terms of the defendant paying the money to the plain- tiff, the latter giving security to refund it. The costs of such an application must be paid by the party making the applica- tion ( p). And where a decree had been made against a defen- dant with costs, an order staying proceedings pending an appeal was made upon payment into Court of the costs below, and payment of the costs of the motion (g). No proceeding by audita querela (r) may now be used ; but any party against whom judgment has been given may apply to the Court or a judge for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded ; and the Court or judge may give such relief and upon such terms as may be just (s). Force and effect of writ. When may he issued. (5.) Writ of Fieri Facias, and Writs in Aid thereof (t). [See also Section 1 and Sections 15 — 18 of this Chapter]. Writs of fieri facias have the same force and effect and are executed in the same manner as under the former practice; and all writs in aid of a writ of fieri facias may be issued and executed in the same cases and in the same manner as under the former practice (u). A writ of fieri facias may be issued upon any judgment for the recovery by or payment to any person of money (v). (o) Goddard v. Thompson, 38 L. T. 166. (p) Merry v. Nickalls, 8 Ch. 205. (q) Cooper v. Cooper, 2 Ch. D. 492. And see Morgan v. Elford, 4 Ch. D. 352, 388. (r) Audita querela was a process in the nature of an action, whereby a party against whom judgment had been obtained might prevent execu- tion on the ground of some matter of defence which there was no oppor- tunity of raising in the original action. Wilson, 2nd ed. p. 287. (*) Ord. XLII. c. 22. \t) For forms, see Daniell's Forms, 3rd ed. 697—712. («) Ord. XLIII. (») Ord. XLII. rr. 1, 15. EXECUTION. . 175 Except in the cases previously mentioned (w) the writ may be issued immediately after the entry of the judgment, unless execution is stayed by the Court or a judge (x). As to the cases in -which leave must be obtained before Leave to issuing the writ, see pp. 167, 172, 173. issue - The writ must be so moulded as to follow the substance of Writ must the judgment or order {y) ; so that the full amount of the debt -°i^L t or damages for which judgment has been recovered must be inserted, even if the judgment debtor has made a payment on account. The writ is directed to* the sheriff of the county, unless he To whom be a party to the action, when it is directed to the coroner, dlrectetl - and, in that case, it must contain a statement to the effect that the sheriff is a party. Every writ of execution for the recovery of money must be Indorse- indorsed with a direction to the sheriff or other officer or person ? ent t - to to whom the writ is directed, to levy the money really due and sheriff, payable and sought to be recovered under the judgment, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of £i per cent, per annum from the time when the judgment was entered up, provided that in cases where there is an agreement between the parties that more than £4 per cent, interest shall be secured by the judgment, then the indorsement may be accordingly to levy the amount of interest so agreed (z). In every case of execution the party entitled to execution Poundage, may levy the poundage, fees, and expenses of execution, over &c- and above the sum recovered (a). And there is a sufficient execution to render poundage' and levy fees payable if the sheriff's officer goes with the warrant for executing a fi. fa. to the debtor's premises and explains the particulars of the war- rant, and that unless the debt is paid a man must remain in possession, even if the debtor thereupon pays the amount demanded (b). Where the writ is issued after a change in the parties, the After change which has taken place must be shown on the face ^-^ of (w) See pp. 167, 172, 173. (a) Id. r.' 13. (x) Ord. XLII. r. 15. (A) Bissicks v. Bath Col. Co., (y) Note to Form 1 in App. (P) to 26 W. E. 365. And see Mortimore Rules of Supreme Court. v. Cragg, 38 L. T. 116. (z) Ord. XLII. r. 14. 176 ORDINARY PROCEEDINGS. IN AN ACTION. Inter- pleader by sheriff. Summary of pro- cedure. Appeal on inter- pleader. thereof; and in such a case the writ cannot be issued without leave (c). The procedure and practice formerly used by Courts of Common Law under the Interpleader Acts, 1 & 2 Will. 4, c. 58, and 23 & 24 Vict. c. 126, applies to all actions and all the divisions of the High Court of Justice (d). When any claim is made by any person not being the party against whom execution is issued, to any goods or chattels taken, or intended to be taken in execution under any process, or to the proceeds or value thereof, the Court from which the process issued, or any judge thereof, may, upon the application of the sheriff or other officer, call before them or him the party issuing the. process, and also the party making such claim. If the claimant fails t o appear, the Court or judge may bar his claim to thegoods in question ; if the . claimant appears and maintains his claim, the Court or judge may, with the consent of the parties, or without such onnapnt, wrifiravBr from the smallness of the amount in dispute, or of the value of the goods. seized, jt appears to ijthem or him desirable and right so to do . dispose of the merits of the respective claims of such parties and determine the same in a summary manner ; or, if the question is one of law and the facts are not in dispute, the judge may decide the question himself, or order a special case to be stated for the opinion of the Court ; or the Court or judge may direct an action to be brought or an issue to be tried, for the purpose of determining the rights of the parties (e). If the claimant claims to be entitled to the goods or chattels by way of security for a debt, the Court or judge may order a sale of the whole or part thereof, upon such terms as may seem ju*(/). An appeal lies from the judgment of the Court upon a spe- cial case ; but not from the decision of the Court or judge in a summary manner (g). As to a judgment in an action or issue directed to try the right, it was enacted by 23 & 24 Vict. c. 126, s. 17j that such judgment shall be final. It has, however, been decided that an appeal lies to the Court of Appeal under sec- (c) See p. 172. (d) Ord. I. r. & (e) 1 & 2 Will, 4, e. 58, s. 6 ; 1 & 2 Vict. c. 45, s. 2 ; 23 & 24 Yict. c. 126, Bf. 14, 15. (/) 23 & 24 Vict. c. 126, d. 13. (?) Id. S3. 16, 17 ; Doddsv. SJ,ep- herd, 1 Ex. D. 75. EXECUTION. 177 tion 19 of the Judicature Act, 1873, from a judgment on an interpleader issue entered on a motion for judgment (A). The application by the sheriff must be supported by an am- Affidavit, davit of the facts ; and the claimant should support his claim by an affidavit showing the grounds of his claim. The sheriff does not usually return a writ of fi. fa. unless Return of he is ordered to do so. It is necessary to compel a return in tIle writ# the following cases : Where the sheriff has levied part only under the writ ; where the sheriff has seized goods which re- main in his hands for want of buyers ; and where the person against whom execution is, issued is a beneficed clerk having no goods or chattels nor any lay fee within the bailiwick (i). To obtain a return of the writ a motion must be made to the Court that the sheriff be ordered to return the writ within the 1 - time to be named in the order. If the order is on the sheriffs of London or the sheriff of Middlesex the time is four days ; in other cases eight days (/). The order may be enforced by attachment (h). An execution creditor has no right to an order calling on the sheriff to return the writ pending an interpleader issue (I). Where any sum, however trifling, has been levied under one Issue of writ, no other writ may be issued until the former has been ? £ returned, and the second writ must recite the former writ and the return thereto (m). Where it appears upon the return of a writ of fi. fa. that Venditioni the sheriff or other officer has, by virtue of such writ seized, ex P onas - but not sold, any goods of the person against whom execution is issued, the person to whom any money is payable under the judgment may immediately after such writ of fi. fa. with the return thereto shall have been filed as of record, sue out a writ of venditioni exponas (»). This writ is not a process distinct from the fi. fa., but a branch of it; it is a' species of fi. fa. directing the sheriff to execute the fi. fa. in a particular man- ner (o). After the delivery of this writ to the sheriff he is (h) Witt v. Parker, 25 W. R. (I) Angell v. Baddeky, 3 Ex. D. 518. 49. (i) Darnell's Forms, 3rd ed. 706, (to) Daniell's Forms, 3rd ed. 703. 707. (m) Cons. Ord. XXIX; r. 9 ; Ord. (j) Reg. Gen. H. T. 1853, r. 130. XLIII. r. 2. As to service of the order, seep. 171. (o) Hughes v.\~Rees, 4 M. t f , (k) As to attachment, see Section 438. 13 of this Chapter, p. 190. 178 ORDINARY PROCEEDINGS IN AN ACTION. gas nuptr vice- comiiem. bound to sell the goods, and have the money in Court imme- diately after its execution ( p). Where a sheriff goes out of office, after returning that he has levied, but that the goods remain in his hands for want of buyers, instead of suing out a venditioni exponas, the plaintiff may sue out a distringas nuper vicecomitem, directed to the present sheriff, commanding him to distrain the late sheriff to sell the goods (q). Force and effect of ■writ. When may be issued. Leave to issue. Writ must follow judgment. Execution of writ. (6.) Writ of Elegit, and Writs in Aid tliereof (r). [See also Section 1, and Sections 15 — 18 of this Chapter.] Writs of elegit have the same force and effect and are exe- cuted in the same manner as under the former practice ; and all writs in aid of a writ of elegit may be issued and executed in the same cases and in the same manner as under the former practice («). A writ of elegit may be issued upon any judgment for the recovery by or payment to any person of money (t). Except in the cases previously mentioned (it) the writ may be issued immediately after the entry of the judgment, unless execution is stayed by the Court or a judge (v). As to the cases in which leave must be obtained before issuing the writ, see pp. 167, 172, 173. The writ must be so moulded as to follow the substance of the judgment or order (w) ; so that the full amount of the debt or damages for which judgment has been recovered must be inserted, even if it has been partly satisfied (x). Upon the receipt of the writ of elegit the sheriff must em- pannel a jury to inquire of the goods and chattels of the judg- ment debtor, and appraise the same, and also to inquire of his lands and tenements and the value thereof. No notice of the (p) Cameron v. Reynolds, Cowp. 493 ; Keigktley v. Birch, 3 Camp. 405. As to compelling return of writ, see supra. (q) Chitty's Arch. 12th ed. 679, 680 ; Ord. XLIII. i. 2. As to com- pelling return of writ, see supra. (?•) For forms, see Daniell's Forms, 3rd ed. 712—723. («) Ord. XLIII. (0 Ord. XLII. it. 1, 15. (u) See pp. 167, 172, 173. (») Ord. XLII. r. 15. (w) Note to Form 1 in App. (F) to Rules of Supreme Court. (x) As to direction to sheriff, see p. 175. EXECUTION. 179 taking of the inquisition need be given to the judgment debtor. The attendance of witnesses before the jury may be enforced by writs of subpoena ad test, and subpoena duces tecum. After the inquisition the sheriff must deliver the goods and chattels of the judgment debtor to the judgment creditor at the price set upon them by the jury, and, if the judgment debt be not thereby satisfied, he must also deliver to the judgment creditor the possession of the lands of the judgment debtor. The sheriff must then return the writ and inquisition (y). By 1 an order directing performance of some act other than the payment of money (/). If an order for committal be made, an office copy thereof, having an indorsement thereon by the Master of the Supreme Court of the direction to the sheriff to execute the same must be delivered to the sheriff ; and office copies of the order may be delivered concurrently to different (g) Gen. Ord. Jan., 1870, r. 10 ; 32 & 33 Vict, is. 62, s. 5. (A) Gen. Ord. Jan., 1870, rr. 11, 12. (*) Id. r. 13. (j) Id. x: 18. See preceding sec- tion of this Chapter. EXECUTION. 190 sheriffs for execution in different counties (k). The sheriff must within two days after the arrest indorse upon the order the date of the arrest, and return the order to the party prose- cuting the judgment or order, or his solicitor (I). An applica- Order does tion for a committal order or an arrest thereunder, does not "?* P re J u_ a? 1-11 "ice exe " affect the right of the party making the application or obtain- oution. ing the order to issue execution against the property of the debtor (m). Upon payment of the amount mentioned in the Certificate committal order, and of the costs of the application for such of payment, order, and the sheriff's fees, the person committed is entitled to a certificate of such payment, signed by the solicitor of the party prosecuting the judgment or order, or, if such party be acting in person, by the party himself, in which case it must be attested by a solicitor or justice of the peace ; and upon such certificate the person committed will be entitled to be dis- charged (re). A person may also be committed to prison for disobedience Committal to a judgment or order requiring him to do any act other than ? T . not the payment of money, or to abstain from doing anything (o). ordered. In this case, the mode of proceeding is the same as that pointed out in the preceding section of this Chapter. (15.) Renewal of Writs of Execution (p). A writ of execution if unexecuted will remain in force for How long one year only from its issue, unless renewed as mentioned J 11 m below ; but such writ may, at any time before its expiration, by leave of the Court or a judge, be renewed, by the party Leave t0 issuing it, for one year from the date of such renewal, and so on from time to time during the continuance of the renewed reneW al. writ, either by being marked with a seal of the Court bearing the date of the day, month, and year of such renewal, or by such party giving a written notice of renewal to the sheriff, signed by the party or his attorney (sic), and bearing the like seal of the Court ; and a writ of execution so renewed will (i) Gen. Ord. Jan., 1670, r. 15. 32 & 33 Vict. c. 62, s. 5. (I) Id. r. 16. (o) Ord. XLII. r. 5. (m) 32 & 33 Vict. u. 62, a. 5 ; (p) For forms, see Daniell's Forms, Gen. Ord. Jan., 1870, r. 14. 3rd ed. 762. (n) Gen. Ord. Jan. 1870, r. 17 ; o 2 196 ORDINARY PROCEEDINGS IN AN ACTION. have effect, and be entitled to priority, according to the time of the original delivery thereof (q). Evidence of The production of a writ of execution, or of the notice renewal. renewing the same, purporting to be marked with such seal as above mentioned, showing the same to have been renewed, will be sufficient evidence of its having been so renewed (r). (16.) Amendment of Writs of Execution (*). C. L.R ^ By Section 222 of the C. L. P. Act, 1852 (15 & 16 Vict. c. 76) it is enacted that the Court or a judge may at all times amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend, or not ; and upon such terms as to the Court or judge may seem fit ; and all such amendments as may be necessaiy for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made. This section extends to writs of execution (t). Act, 1852, (17.) Registration of Writs of Execution (u). 23&24 By 23 & 24 Vict. c. 38, and 27 & 28 Vict. c. 112, it is and 27 & ' enacted that no judgment entered up after the passing of the 2S Vict. latter Act shall affect any land of auy tenure until the writ of execution has been registered in the name of the debtor in the Common Pleas in the manner provided by the 23 & 24 Vict, c. 38, and until such land shall have been actually delivered in execution. How regis- The registry required of any writ of execution is made by a memorandum or minute referring to the judgment being left with the Senior Master of the Common Pleas Division, who enters the particulars in a book in alphabetical order by the name of the debtor (»). The memorandum must be on parch- ment and may be obtained at the registry. (o) Ord. XLII. r. 16. (it) For form of memorandum, see (r) Id. jr. 17 Daniell's Forms, 3rd ed. 763. (s) For form of summons to amend, (v) 23 & 24 Vict. c. 38, s. 2 ■ 27 see Daniell's Forms, 3rd ed. 763. & 28 Vict. c. 112, B . 3. tsred. (0 Chitty's Arch. 12th ed. 642. tion. EXECUTION. 197 A fee of 5s. is payable on registering a writ of execution (w). Fees. For searching the register a fee of Is. for each name is payable by a stamp impressed upon a praecipe (x). Satisfaction of the registry of a writ of execution may be Satisfac- procured in the manner before mentioned respecting a lis pen- dens (y). It may also be procured, if by consent, by an order obtained on petition of course. (18.) Discliarging and Setting Aside Process of Execution (z). * If the writ of execution be irregular, or ought not to have In what issued, the Court or a judge will, in general, set it aside, and, cases if goods or money have been levied under it, order them to be restored, or, if the party be in custody under it, order him to be discharged. So, if the execution has been irregularly exe- cuted, they will, in general, order such restoration or discharge. But the execution will not, in general, be set aside where too- large a sum has been levied ; all the Court or a judge will do in such a case is to compel the plaintiff to refund the over- plus (a). The application should be made within a reasonable time and before waiver of the irregularity (6) ; and should be supported by an affidavit of the facts. (19.) Enforcing the Judgment in Scotland or Ireland (c). Where judgment is obtained for any debt, damages, or costs, Judgments on production to the Master of the Common Pleas Division of ]S enslon Her Majesty's High Court of Justice in Ireland, or at the office kept in Edinburgh for the registration of deeds, bonds, protests, and other writs registered in the books of council and session, of a certificate of such judgment purporting to be signed by the proper officer of the Court, such certificate will be registered in a register or book to be kept for that purpose, and thereupon the judgment may be enforced in Ireland as if (w) 23 & 24 Vict. c. 38, s. 2. summons, see Daniell's Forms, 3rded. (x) Ord. as to Court Fees, Oct., 765. 1875, Sched. ; Ord. as to Fees, April, (a) Chitty's Arch. 12th ed. 640. 1876, Sohed. (S) Id. 1472, 1473. (y) See p. 32. (c) For forms, see Daniell's Forms, (z) For form of notice of motion or 3rd ed. 767. 198 ORDINARY PROCEEDINGS IN AN ACTION. it were a judgment of the High Court of Justice in Ireland, or in Scotland as if it were a decreet of the Court of Session (d). (20.) Enforcing in England an Irish or Scotch Judgment. If it is desired to enforce an Irish judgment or a Scotch decreet in England, the judgment or decreet must be registered with the Senior Master of the Common Pleas Division ; and the execution must be issued out of that Division (e). (d) 31 & 32 Tict. o. 54, ss. 1, 2. (e) Id. ss. 1, 3, 4. CHAPTEE XIII. APPEALS TO HER MAJESTY'S COURT OP APPEAL (a). (1.) Constitution and Jurisdiction of the Court of Appeal. The Supreme Court consists of two permanent Divisions, one "Her of which, under the name of " Her Majesty's Court of Appeal " ^1%* exercises appellate jurisdiction with such original jurisdiction Appeal." as may be incident to the determination of any appeal (6). The Court of Appeal is constituted of five ex officio- judges, and Judges. six ordinary judges. The ex officio judges are the Lord Chancellor, the Lord Chief Justice of England, the Master of the Eolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer. Whenever the office of an ordinary judge of the Court of Appeal becomes vacant a new judge may be appointed thereto by Her Majesty by Letters Patent (c). The Lord Chancellor is President of the Court of Appeal ; Precedence and the other ex officio judges of such Court rank in the order ° ■' u ges ' of their respective official precedence before the passing of the Judicature Acts (d) . The ordinary j udges of the Court of Appeal, if not entitled to precedence as Peers or Privy Councillors, rank according to the priority of their respective appointments as such judges (e). The style of the ordinary judges of the Court Style of of Appeal is " Lords Justices of Appeal" (/). ■' u ges ' The office of any judge of the Court of Appeal may be Besigna- vacated by resignation in writing, under his hand, addressed to -juclicial the Lord Chancellor ; and such Court will be deemed to be office - (a) For forms, see Daniell's Forms, & 40 Vict. i>. 59, s. 15. 3rd ed. 780 — 791. (d) See preceding paragraph. (J) 36 & 37 Vict. c. 66, s. 4. (e) 38 & 39 Vict. c. 77, s. 6. (c) 38 & 39 Vict. c. 77, s. 4 ; 39 (/) 40 Vict. c. 9, s. 4. 200 ORDINARY PROCEEDINGS IN AN ACTION. A judge may not hear an ap- peal f 010 his own judgment. Request as to at- tendance of addi- tional judges. Number of judges re- quired to hear ap- duly constituted during and notwithstanding any vacancy in the office of any judge thereof (g). No judge of the Court of Appeal may sit as a judge on the hearing of an appeal from any judgment or order made by him- self, or made by any Divisional Court of which he was and is a member (h). But a judge of the Division in which the action is pending who took no part in making the order appealed from can sit as one of the judges of the Court of Appeal (i). The Lord Chancellor may by writing, addressed to the Pre- sident of any one or more of the following Divisions of the High Court of Justice, viz., the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, and the Probate, Divorce, and Admiralty Division, request the attendance at any time, except during the times of the spring or summer circuits, of au additional judge from such Division or Divisions (not being ex officio judge or judges of the Court of Appeal) at the sittings of the Court of Appeal, and a judge, to be selected by the Division from which his attendance is requested, shall attend accordingly. Every additional judge, during the time that he attends the sittings of the Court of Appeal, has all the jurisdiction and powers of a judge of such Court, but is not otherwise deemed a judge thereof, or to have ceased to be a judge of the Division of the High Court to which he belongs (;'). Where a judge has been so requested to attend, such judge, although the period has expired during which his attendance was requested, shall attend the sittings of the Court of Appeal for the purpose of giving judgment or otherwise in relation to auy case which may have been heard by such Court during his attendance (k). Every appeal to the Court of Appeal shall, where the subject- matter of the appeal is a final order, decree, or judgment, be heard before not less than three judges of the said Court sitting together, and shall, when the subject-matter of the appeal is an interlocutory order, decree, or judgment, be heard before not less than two judges of the said Court sitting together. Any doubt which may arise as to what decrees, orders, or judgments are final, and what are interlocutory, shall be determined by (^) 36 & 37 Vict. c. 66, ». 7. As to tenure of office, see p. 2. (A) 38 & 39 Vict. c. 77, ». i. (i) Fishery. Val de Trarera Co., 1 C. P. D. 259. (/) 38 & 39 Vict. c. 77, s. 4. ( submitted themselves to the jurisdic- tion of the judge personally they cannot appeal from his decision (y). No order made by the High Court of Justice or any judge Appeal thereof, as to costs only, which by law are left to the discre- t0 costs tion of the Court, is subject to any appeal, except by leave of only, the Court or judge making such order (w). An appeal from an order declaring that a defendant has committed a breach of an injunction, but only ordering payment of costs, is not an appeal for costs within section 49 (x) ; but where a judge, on refusal to commit for contempt, made the costs costs in the cause, it was held that no appeal lay (y). Trustees cannot appeal upon the sole question of their liability to pay the costs of a petition under the Trustee Eelief Act (z) ; but an appeal from an order directing payment of costs, charges, and ex- penses of trustees may be brought without leave (a). Where a judge adopted a referee's report, which said nothing about costs, and left them to be dealt with by the taxing master, an appeal from the judge's order on the ground that he ought to have exercised his discretion as to costs was held to be an appeal "as to costs only," and was dismissed (6). And where, on a bill having been dismissed without costs, the defendant appealed on the ground that it should have been dismissed with costs, and that an inquiry as to damages in respect of an ex parte injunction should have been granted, the Court of Appeal directed the inquiry as to damages, but held that the order could not be disturbed as to costs (c). Where by Act of Parliament it is provided that the decision No appeal of any Court or judge the jurisdiction of which Court or judge X t™ is transferred to the High Court of Justice is to be final, an provides appeal does not lie in any such case from the decision of the (a) 36 & 37 Vict. c. 66, s. 49. (2) Re Hoskiris Trusts, 6 Ch. D. (») Ex parte Wilson, 7 Ch. 45 ; 281. Sustros v. White, 1 Q. B. D. 423, (a) Re OkcnneU, Jones v. Chen- 427. nell, 8 Ch. D. 492. (w) 36 & 37 Vict. t. 66, s. 49. (b) Re Leigh, Roweliffe v. Leigh, (x) Wilt v. Corcoran, 2 Ch. D. 69. 26 W. R. 729. (y) Ashworth v. Outram, 5 Ch. D. (c) Graham v. Campbell, 7 Ch. D 943. 490. that de- cision of 204 ORDINARY PROCEEDINGS IN AN ACTION. High Court or judge is to be final. Where matter ■within judge's discretion. Notice of motion. Length of notice required. Service of notice. High Court of Justice, or of any judge thereof, to Her Majesty's Court of Appeal (d). A summary decision on an interpleader under the C. L. P. Act, 1860 (23 & 24 Vict. c. 126), s. 14, is final, and no right of appeal can be given even with consent. The above rule is to be read together with sections 19 & 50 of the Judicature Act, 1873, and these, taken together, have made no alteration in this respect (e). As a general rule, the Court of Appeal will not interfere where the question is within the discretion of the judge below (/) ; but in extreme cases the appeal will be entertained (g). (3.) Procedure on Appeal. All appeals to the Court of Appeal are to be by way of re- hearing, and are to be brought by notice of motion in a summary way, and no petition, case, or other formal proceed- ing other than such notice of motion is necessary. The ap- pellant may by the notice of motion appeal from the whole or any part of any judgment or order, and the notice of motion must state whether the whole or part only of such judgment or order is complained of, and in the latter case must specify such part (h). If a party appeals from part only of the judgment or order, he thereby admits the remainder to be correct (i). Notice of appeal from any judgment, whether final or inter- locutory, is a fourteen days' notice, and notice of appeal from any interlocutory order is a, four days' notice (/). The notice of appeal must be served upon all parties directly affected by the appeal, and it is not necessary to serve parties not so affected ; but the Court of Appeal may direct notice of the appeal to be served on all or any parties to the action or the proceeding, or upon any person not a party, and in the mean- time may postpone or adjourn the hearing of the appeal upon such terms as may seem just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties. Any {d) 39 & 40 Vict. c. 59, s. 20. (e) Dodds v. Shepherd, 1 Ex. D. 75. (/) Golding v. Wharton Salt- works Co., 1 Q. B. D. 374 ; Metro- politan Board of Works v. New Eirer Co., 2 Q. B. D. 67 ; Watson v. liodwell, 3 Ch. D. 380; Macdonald v. Foster, 6 Ch. D. 193. (y) Davy v. Garrett, 7 Ch. D. 473. (h) Ord. LVIII. r. 2. (i) Ban. Pr. 1335. (]) Ord. LVIII. r. 4. tinguished. APPEALS TO HER MAJESTY'S COURT OF APPEAL. 20-3 notice of appeal may be amended at any time as to the Court of Appeal may seem fit (k). If on the hearing of the appeal the appellant does not appear, the respondent will not be required to prove that he has been served with notice of appeal (l). No appeal from any interlocutory order may, except by Time special leave of the Court of Appeal, be brought after the ex- appea i. piration of twenty-one days, and no other appeal may, except by such leave, be brought after the expiration of one year. These respective periods are calculated from the time at which the judgment or order is signed, entered, or otherwise perfected, or, in the case of the refusal of an application, from the date of such refusal (m). In determining what orders are, made on final, and what on Final and interlocutory applications, the substance of the case is looked t a ppli- at ; where, therefore, on the hearing of an action on further cations dh consideration, and of a summons to vary the Chief Clerk's cer- tificate, one order was made, dismissing the summons to vary, and granting an injunction and ordering payment of compensa- tion in accordance with the Chief Clerk's certificate, it was held that an appeal from this order must be brought within twenty- one days, the substantial part of the order appealed from being that dismissing the summons to vary, which, was made on an interlocutory application (w). An order made under Ord. XIV. r. 1 (o), is interlocutory, and an appeal from such order must be brought within twenty-one days (p). An appeal from an interpleader issue must be brought within twenty-one days, although it may, practically, decide the action (q). An order overruling or allowing a demurrer is not, however, an interlo- cutory order as respects the time for appealing (r). Where an (*) Ord. LVIII. r. 3. For cases in (m) Ord. LVIII. r. 15. which the Court of Appeal has directed (ri) Cummins v. Herroa, 4 Ch. D. notice to be served on persons not 787. And see White v. Witt, 5 Ch. originally served, see Purnett v. 0. D. 589. W. Ry. Co., 1 Q. B. D. 636 ; Hunter (a) See p. 65. t. Hunter, 24 W. R. 504. As to (p) Standard Discount Co. v. granting leave to amend, see Re Otard de la Grange, 3 C. P. D. 67. Stockton Iron Furnace Co., 10 Ch. (?) McAndrewv. Barker, 7Ch.D. D. 335 ; see also Norton v. L. & N.- 701. W. Ry., 11 Ch. D. 119. (r) Trowell v. Shenton, 8 Ch. D. (I) Ex parte Lows, re Lows, 7 Ch. 318, 321. D. 160. 206 ORDINARY PROCEEDINGS IN AN ACTION. order is made in the Chancery Division in Chambers, an ap- plication for a rehearing in Court must be made within twenty- one days, unless the judge extend the time ; and an appeal lies from such rehearing to the Court of Appeal within twenty-one days therefrom (*). An appeal from an order of a Divisional Court making absolute a rule for a new trial is an appeal from an interlocutory judgment, and therefore must be brought within twenty-one days (t). In an action in the Chancery Division tried by a judge without a jury, if the judge takes upon himself the trial of specific questions of fact and finds his verdict upon them as a matter separate from the judgment which he gives upon that verdict, the judge's verdict upon the questions of fact is an interlocutory order and cannot be ap- pealed from after the expiration of twenty-one days (u). Refusal As mentioned above, where the appeal is from the refusal of of appli- an a pp]i ca tion, the time runs from the date of refusal ; and it makes no difference though an order as to costs be also made (v). The dismissal of an action is the refusal of an ap- plication, and notice of appeal must be given within a year from the date of the dismissal, and not from the entry of judgment (w). In an appeal from a refusal of part of an ap- plication, the time runs from the date of the refusal (x) ; and where an order on summons granted two of several applications and did not mention the others, it was held that an appeal must be brought within twenty-one days from the hearing of the ap- plications (y). Where, however, the application included only one claim, and an order was made giving the applicant some- thing, but not all that he asked for, it was held that an appeal by the applicant from such order was not an appeal from the refusal of an order, and, consequently, that the time for ap- pealing ran from the date of the entry of the order (2). The crucial step which must be taken within the time limited, is the (s) Dickson v. Harrison, 47 L. J. dicate, 3 Ch. D. 127. (Ch.) 761. (■«) International, &c, Society v. (t) ffighton v. Treherne, 39 L. T. City of Moscow Gas Co., 7 Ch D 411. 241. (u) Xrehl v. Burrell, 10 Ch. D. (x ) Trail v. Jackson, 4 Ch. D. 7. 420. Where no definite issues of fact (y) Btrdan v. Birmingham SmaU are settled on the commencement of A rms Co. , 7 Ch. D. 24. the trial, see Lowe v. Lowe, 10 Ch. ( z ) Se MicheU's Trusts 9 Ch D. 432. D. 5. (v) Swindell v. Birmingham Syn- APPEALS TO HER MAJESTY'S COURT OF APPEAL. 207 service of the notice of motion of appeal ; it is not enough to set down the motion for hearing without serving the notice (a). Special leave to appeal will not be given ex parte after the Special time for appealing has expired ; even though the decision ap- eave ' pealed against may, in the meantime, have been reversed by the House of Lords in another action (6). The Court will not enlarge the time unless the appellant has been misled by the other side, or by the officer of the Court, or unless there has been some unavoidable accident; and the fact that the ap- pellant has misunderstood the provisions of the Rules of Court is not a sufficient ground (c). The time will not be enlarged where, owing to a mistake, made bond fide, by the appellant's legal advisers, the time within which the appeal should have been brought has been allowed to run out (d). And the fact that the Court of Appeal has, subsequently, arrived at a different decision in a similar case is not, in itself, sufficient reason for enlarging the time (e). Where a valid notice of appeal was withdrawn under the impression that it was irregular, and two days after the time for notice a fresh notice was given, the Court extended the time (/). Such deposit or other security for the costs to be occasioned Security by any appeal must be made or given as may be directed under costs " special circumstances by the Court of Appeal (?). The applica- tion for security for costs is by motion to the Court of Appeal on notice (h) ; but it is not necessary to obtain leave to serve the notice of motion (i). It will be too late to apply after the costs have been actually incurred, and the time for the hearing fixed (;'). The application must be supported by affidavit show- ing the special circumstances (k). Where an appellant was (a) Ex parte Viney, 4 Ch. D. Case, 8 Ck. D. 643. 794 ; Ex parte Saffery, 5 Ch. D. (g) Ord. LVIH. t. 15. See Wad- 365. dell v. Blochey, 10 Ch. D. 416. . (b) Me Lawrence, Evennett v. Law- (h) Id. r. 18. Before giving such rence, 4 Ch. D. 139. notice the respondent should apply to (c) International, &c, Society v. the appellant for security out of Court, City of Moscow Gas Co., 7 Ch. D. see Ship Constantini, W. N. (1879), "241 ; Be Mantel, Rhodes v. Jenkins, 124. 7 Ch. D. 711. (i) Grills v. Dillon, 2 Ch. D. 325. (d) Highton v. Treherne, 39 L. T. {j) Grant v. JBanque Franco- ill ; Rhodes v. Jenkins, sup. Egyptienne, 1 C. P. D. 143. And see (e) Craig v. Phillips, 7 Ch. D. Ex parte Eutchins and Romer, W. 249. N. (1879), 99. (/) Re Ambrose, &c, Taylor's Qe) The Victoria, 1 P. D. 280. 208 ORDINARY PROCEEDINGS IN AN ACTION. proved to have no meaus to answer the costs, the appeal was stayed until he deposited £50 ; but the Court declined to dis- miss the appeal if he did not make the deposit within a specific time (l). In another case, an appellant was ordered to give security for £200 for costs of appeal, either by paying the money into Court, or by giving a bond with two sureties ; the costs of the motion to follow the result of the appeal (m). The Court of Appeal will, in considering whether security for costs should be given by an impecunious appellant, take into con- sideration the peculiar circumstances of the case, e.g., that the appeal is vexatious («■}. Where, in an action brought for the administration of the estate of an intestate against a person who had obtained letters of administration to the estate, a motion by the plaintiff, who was a pauper, for an injunction to restrain the defendant from getting in or dealing with the estate and for the appointment of a receiver, was refused, and the plaintiff appealed, it was held that the fact that the plaintiff sought the injunction without taking proceedings to have the letters of administration revoked, coupled with the fact of the poverty of the plaintiff, amounted to special circumstances justifying the Court in requiring the plaintiff to give security for the costs of appeal (o). And where an ap- pellant in bankruptcy was ordered on the 26th June to give additional security for the costs of the appeal, and on -the 4th Nov., the security not having been given, the respondent, without any previous communication with the appellant, gave notice of motion to dismiss the appeal for want of prosecution, and the appellant gave the security on the 13th Nov., the day before that appointed for the hearing of the motion, it was held that the appellant must pay the costs of the motion before the appeal could come on to be heard (p). Where, however, an appellant failed for nine months to comply with an order to give security for costs, the appeal was dismissed with costs for want of prosecution {q). And, in another case, where the appellant had delayed giving security for four months after the order to do so, his appeal was dismissed (r). Such security must be (I) Wilson v. Smith, 2 Ch. D. 67. 10 Ch. D. 372 ; 39 L. T. 285 (m) PJiospJiale Sewage Co. v. Hart- ( p) Ex parte Isaacs '; Re Haum, .mont, 2 Ch. D. 811. 39 L. T. 520. (n) Usii v. Brearly, 3 C. P.'d. 206. (q) Judd v. Green,, 4 Ch. D 784. (0) lie Ivory, Hanlcin v. Twnrr, (,-) Vtih v. Oppert, 5 Ch. D. 633. APPEALS TO HER MAJESTY S COURT OF APPEAL. 209 given within a reasonable time if no date is fixed by the order (s). Where an ex parte application has been refused by the Court Appeal to below, an application for a similar purpose may be made to the 9 ourt ? f Court of Appeal ex parte within four days from the date of such after re- refusal, or within such enlarged time as a judge of the Court fusal of CX TJCbVtB below or of the Appeal Court may allow (t). application The time for appealing from any order or decision made or belo ' Br - given in the matter of the winding up of a company under the Time j° r provisions of the Companies Act, 1862, or any Act amending winding-up the same, or any order ox decision made in the matter of any cases " bankruptcy, or in any other matter not being an action, is the same as the time limited for appeal from an interlocutory order under Rule 15 (u). This rule extends to the winding up order itself, as well as to any order made in the course of winding up (v). An appeal from an order under the Trustee Eelief Act is within this rule (w). The party appealing from a judgment or order must pro- Setting duce to the proper officer of the Court of Appeal the judgment down or order or an office copy thereof, and must leave with him a copy of the notice of appeal to be filed, and such officer must thereupon set down the appeal by entering the same in the proper list of appeals, and it will come on to be heard accord- ing to its order in such list, unless the Court of Appeal or a judge thereof shall otherwise direct, but so as not to come into the paper for hearing before the day named in the notice of appeal (x). Notice of an appeal must be given to the proper officer before the day named in such notice (or before the next sitting of the Court if such day is in vacation) to be entered by him, otherwise the respondent will be entitled to have the motion treated as abandoned, and dismissed with costs {y). (s) Vale v. Oppert, 5 Ch. D. 633. officer is the Registrar. As to ad- And see Kanitz v. Scarborough, W. vancing appeals, see L. C. & D. N. (1878), 216 ; Pollini v. Gray, By. Co. t. Imp. Merc. Credit Ass., W. N. (1879), 84. 3 Ch. 231 ; Lazenby v. White, 6 Ch. {() Ord. LVIII. r. 10. And see 89. r. 17, infra. (y) Re National Funds Ass. Co., (m) Ord. LVIII. r. 9. See Rule 15, 4 Ch. D. 305; Re Mamel, Rhodes p. 205, sup. v. Jenkins, 7 Ch. D. 711. Where (v) Re National Funds A ss. Co., 4 the delay in setting down the appeal Ch. D. 305. was caused by respondent, see Re (w) Re Saillie's Trusts, Id. 785. Ilarker, Goodbarn v. FothergiU, 10 (x) Ord. LVIII. r. 8. The proper Ch. D. 613. P 210 ORDINARY PROCEEDINGS IN AN ACTION. Notice as to appeals from cer- tain inter- locutory orders. "With- drawal of Notice in lieu of Where an appeal is not set down, and therefore is not in the paper, the respondent should not appear, but should give notice of motion for his costs (z). In case the appeal is from the refusal of an application only, it is not necessary to produce the order or a copy thereof in order to have the appeal set down (a). On setting down the appeal for hearing a fee of £1 on the lower and £2 on the higher scale is payable by means of a stamp impressed upon the praecipe (6). The following notice was issued in January, 1877 : — " The Senior Registrar has been directed to give notice that, in future, appeals from interlocutory orders in any of the follow ^ ing cases will be set down for hearing in a separate list : — (1.) On applications for injunctions^ prohibit ions, writs of w e exeat regno, or certiorari, and for stop-orders on securities or docu- ments in Court. (2.) On applications for and relating to tho appointment of receivers, managers, or official liquidators. (3.) On applications for enlarging the time for redemption, for pay- ment into Court, or for doing any other act, or for taking any proceedings. (4.) On applications relating to wards or infants and the management of their property. (5.) On applications relating to all matters of contempt, and to the execution of decrees, judgments, and orders. (6.) On applications relating to the discovery and inspection of documents. (7.) And, generally, on all applications relating merely to matters of practice or procedure. The solicitor applying to set down any appeal in such list will be required to produce his notice of motion, and certify at the foot thereof the class to which it belongs " (66). If it be desired to withdraw an appeal, the leave of the Court of Appeal must fee obtained. The application is by motion ex parte to the Court of Appeal if the respondent con- sents ; but if he does not, the application must be by motion on notice, and the respondent will be entitled to the costs of the appeal, including the costs of the application to withdraw it(c). It is not, under any circumstances, necessary for a respon- (s) Webb v. Mansel, 2 Q. B. D. 117 ; Re Oakviell Colleries, 7 Ch. D. 706. (a) Smith v. QrimMey, 3 Ch. D. 80. (6) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord. as to Fees, April, 1876, Sched. (bb) W. N. (1857),,Pt. II. 162. (c) Dan. Pr. 1352, 1353 ; Re Oah- well Colleries, 7 Ch. D. 706. APPEALS TO HER MAJESTY'S COURT OP APPEAL. 211 dent to give notice of motion by way of cross appeal, but if a cross ap- respondent intends, upon the hearing of the appeal, to contend pea1- that the decision of the Court below should be varied, he must within the time specified in Rule 7 of Ord. LVIIL, or such time as may be prescribed by special order, give notice of such intention to any parties who may be affected by such contention. The omission to give such notice will not diminish the powers conferred by the Act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal, or for a special order as to costs (d). Subject to any such special order as to time, such notice by a respondent must, in the case of any appeal from a final judgment, be an eight days' notice, and, in the case of an appeal from an inter- locutory order, a two days' notice (e). Where a respondent, without giving notice, asked for relief against a co-respondent, it was held that all the co-respondent could ask for was further time (/). A bill was dismissed without costs. On appeal this decision was affirmed, and it was held that the defendant could not ask for costs without having given notice as above mentioned (g). And where, in affirming a judgment of the Court below upon the merits, the Court of Appeal considered that a wrong order had been made as to costs, the Court declined to open the whole judgment in order to make the proper order as to costs, as no notice of cross appeal had been given (h). A person who, though not a party to the proceeding has an Appeal by interest in the subject-matter which is affected by the judg- ^ party. ° ment or order, may obtain leave to appeal therefrom, by motion on notice (i). The brief on the appeal will consist of counsel's brief on the Brie trial or hearing in the Court below ; a copy of the notes of any evidence given orally in the Court below ; a copy of the judg- ment or order appealed from ; a copy of the notice of appeal motion ; a copy of the respondent's notice (if any) of his inten- tion to contend that the judgment or order appealed from ought to be varied, and of any other notices relating, to the appeal : where it is desired to adduce further evidence upon the appeal, a copy of such further evidence, if it has been taken id) Ord. LVIIL r. 6. See The 527. Lwwretta, 4 P. D. 25. (g) Harris v. Aaron, 4 Ch. D. 749. (e) Id. r. 7. (h) Re New Gas Co., 25 W. R. 643. (/) Hunter v. Hunter, 24 W. R. (i) Dan. Pr. 1330—1332, 1348. p 2 212 ORDINARY PROCEEDINGS IN AN ACTION. Powers of Court of Appeal. Further evidence. by affidavit or deposition; or, if it is intended to examine witnesses orally in open Court, a concise statement of the material facts which each witness can prove. The brief should also be accompanied by any necessary and proper observations (/). The Court of Appeal has all the powers and duties as to amendment and otherwise of the Court of First Instance, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon interlocutory applica- tions, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) will be admitted on special grounds only, and not without special leave of the Court. The Court of Appeal has power to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. Such powers may be exercised notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respon- dents or parties may not have appealed from or complained of the decision (k). If upon the hearing of an appeal from a judg- ment pronounced by a judge or Court on the verdict or finding of a jury, or of a judge without a jury, it appears to the Court of Appeal that a new trial ought to be had, the Court of Appeal may, if it shall think fit, order that the verdict and judgment shall be set aside, and that a new trial shall be had Qck). Where an appellant desires to produce further evidence on the hearing of an appeal, he need not give formal notice of motion, but may give (without leave) notice to the other side of his intention to apply at the hearing for leave to produce the evidence (I). New evidence has been admitted on appeal although the judge below had refused to admit it (m). (j) Daniell's Forms, 3rd ed. 790, 791. (k) Ord. LVIII. r. 5. (kk) Id. r. 5a. Ord. March, 1879. (I) Hastk v. Hastic, 1 Ch. D. 562. (m) Bigsby v. Dickinson, 4 Ch. D. 24; Re Ohennell, Jones v. Chen- veil, 8 Ch. D. 492. APPEALS TO HER MAJESTY'S COURT OF APPEAL. 213 No interlocutory order, from which there has been no appeal, Interloou- will operate so as to bar or prejudice the Court of Appeal from t01 7 order ..,,.. , , . to be no giving such decision upon the appeal as may seem just (mm). bar. When any question of fact is involved in an appeal, the Evidence evidence taken in the Court below bearing on such question, £ se ,, m must, subject to any special order, be brought before the Court below, of Appeal as follows : — (1.) As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed. (2.) As to any evidence given orally, by the production of a copy of the judge's notes, or such other materials as the Court may deem expedient (n). The costs'of taking and transcribing shorthand notes of the evidence and proceedings' at the trial, to be used on the hearing in the Court of Appeal, will not be allowed as costs of the appeal without the special directions of the Court of Appeal (o). The Court of Appeal has in several instances, to save expense to the parties, dispensed with the necessity of taking office copies of affidavits for the use of the Court. In one case, the officer of the Court was directed to attend with the originals ; and in another case, the office copy taken by each side of its own affidavits, with the plain copies delivered to the opposite side, were held sufficient (p). Where evidence has not been printed in the Court below (q), order for the Court below or a judge thereof, or the Court of Appeal or a evidence judge thereof, may order the whole or any part thereof to be printed, printed for the purpose of the appeal. Any party printing evidence for the purpose of an appeal without such order must bear the costs thereof, unless the Court of Appeal or a judge thereof shall otherwise order (r). Where the viva voce evidence was voluminous, and it was necessary to refer to it all, the Court of Appeal allowed the costs of the transcript and print- ing of shorthand notes of the evidence, but refused to allow the costs of attendance of the shorthand writer (s). If, upon the hearing of an appeal, a question arise as to the Evidenco [mm) Ord. LVIII. r. 14. See v.Norris, 45 L. J. (C. P.) 148 ; Craw White v. Witt, 5 Ch. D. 589. ford v. Hornsea Co., 24 W. E. 422. (») Ord. LVIII. r. 11. (?) See p. 110. (o) Askworth v. Outram, 9 Ch. D. (r) Ord. LVIII. r. 12. 483. (») Bigsby v. Dickinson, i Ch. D. ( p) 'Wilson, 2nd ed. p. 328 ; Sickles 24. 214 ORDINARY PROCEEDINGS IN AN ACTION. as to rul- ing of judge. Coats. Effect of appeal on the pro- ceedings. When ap- plication to be made first to Court below. ruling or direction of the judge to a jury or assessors, the Court will have regard to verified notes or other evidence, and to such other materials as the Court may deem expedient (t). The Court of Appeal has power to make such order as to the whole or any part of the costs of the. appeal as may seem just (w). It is the rule that costs follow the event of an appeal, unless the Court for special reasons otherwise orders (y). An appeal does not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the Court appealed from, or any judge thereof, or the Court of Appeal may so order ; and no intermediate act or proceeding will be invalidated, except so far as the Court appealed from may direct (w). An application to stay proceedings pending an appeal must be made upon notice (x). Where a decree had been made against a defendant with costs, an order staying pro- ceedings pending an appeal was made upon payment into Court of the costs below, and payment of the costs of the motion (y). Eule 16 does not apply to appeals to the House of Lords (z). Wherever under the rules an application may be made either to the Court below or to the Court of Appeal, or to a judge of the Court below or of the Court of Appeal, it must be made in the first instance to the Court or judge below (a) ; and every application to a judge of the Court of Appeal must be by motion (6). (0 Ord. LVIII. r. 13. («) Ord. LVIII. r. 5. (») Lord Cairns, C, 1 Ch. D. 41. (to) Ord. LVIII. r. 16. See God- dard v. Thompson, 26 W. R. 362 ; Grant v. Banque Franco-Egyptienne, 3 C. P. D. 202. (%) Sep. of Peru v. Weguelin, 24 W. R. 297. (j) Cooper v. Cooper, 2 Ch. B. 492. (2) Justice r. Mersey Steel, a decree for partition might have been made, cation of then if the party or parties interested, individually or collec- terartedto tivelv > to tne extent of one moiety or upwards in the property extent of a to which the suit relates, request the Court to direct a sale of ""wards' the P ro P ertv and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions (/). The 4th section seems to be perfectly distinct from the 3rd, for whereas the 3rd section in terms applies only where the Court is satisfied that a parti- tion is inconvenient and not beneficial for the parties, there is no such condition inserted in the 4th section; and whereas under the 3rd section a discretionary power was given to the Court to order a sale, if it thought a sale more beneficial than a partition, the 4th section makes it imperative on the Court, in a certain state of circumstances, to order a sale, and if less than half desire a partition, then the half requiring a sale shall have the preponderating voice, and the Court shall be bound to give them a sale wholly irrespective of the 3rd section. But still there is a certain discretion left to the Court, so that the Court can refuse a sale where it is manifestly asked through vindictive feeling, or is on any other ground unreasonable (g). The circumstance that the owner of one moiety of an estate occupies the whole for commercial purposes as yearly tenant, is no good reason why a sale should not be decreed under section 4 (h). Where one of two tenants in common had ex- pended money in improving his moiety, an inquiry was directed as to how far the value of the estate had been thereby in- (d) 31 & 32 Vict. c. 40, ». 3. In (g) Lord Hatkerlcy, in Peniberton Burmll t. BurneU, 11 Ch. D. 213, v. Barnes, 6 Ch. 685, at p. 693. a sale was ordered on motion, upon And see Saxton v. Bartley, W. N. admissions in the pleadings, under (1879), 94. Ord. XL. r. 11. (h) Wilkinson v. Joberns, 16 Eq. (e) Dimkwater v. Ratcliffe, 20 Eq. 14. And see RougMon v. Gibson, 528. 25 W. R. 269. (/) 31 & 32 Vict. c. 40, =. 4. ACTION FOR PARTITION. 233 creased (i). A representation that a sale would diminish the income of an infant presumptively entitled to one moiety of ten leasehold houses was held not a sufficient reason under section 4 for refusing a sale requested by the parson absolutely entitled to the other moiety, and contingently interested in the infant's moiety (/). Where the plaintiff and defendant were entitled in equal moieties to a mansion and 185 acres, and the plaintiff, who was in the occupation of the house, desired a partition on the ground that he was tenant for life of a larger estate, which almost surrounded and was intermixed with the 185 acres, and with which the mansion had formerly been held, and the de- fendant, who was also an adjoining landowner, asked for a sale, and wished to buy the property, it was held that the plaintiff had shown no " good reason " against a sale. Leave was given to both parties to bid (k). In a suit for partition, where, if the Partition Act, 1868, had Sale where not been passed, a decree for partition might have been made, P a ™ es d0 then if any party interested in the property to which the suit take to relates requests the Court to direct a sale of the property and a ghareoT distribution of the proceeds instead of a division of the property party re- between or among the parties interested, the Court may, if it JJ u ^} e mg thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions, and in case of such undertaking being given the Court may order a valuation of the share of the party requesting a sale in such manner as the Court thinks fit, and may give all necessary or proper consequential directions (I). Section 5 gives the Court a power distinct from sections 3 and 4, and the provisions applying to sales under the former do not apply to sales under the latter (m). It has been decided that the Court has no power to compel a part owner who asks for a sale to sell his share at a valuation to the other part owners who ask for a partition (n). On any sale under the Partition Act, 1868, the Court may, Leave to if it thinks fit, allow any of the parties interested in the pro- f nterestei i (i) Parker v. Trigg, W. N. (1874), Eq. 528. 27. (") Williams v. Games, 10 Cli. U) Howe v. Gray, 5 Oh. D. 263. 204 ; and see Gilbert v. Smith, 11 (i) Porter v. Lopes, 7 Ch. D. 35?. Ch. D. 78. But see remarks of Lord (I) 31 & 32 Vict. c. 40, s. 5. Hatherley in Pemberton v. Barnes, (m) Drinkwater v. Ralcliffe, 20 6 Ch. 685. to bid. 234 PARTICULAR ACTIONS. Proceeds of shares of persons under dis- ability. County Courts. Distribu- tion of proceeds where ser- vice of notice dis- ■with under 39&40 Vict. b. 17. perty to bid at the sale, on such terms as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part thereof instead of paying the same, or as to any other matters, as to the Court seem reasonable (o). The Partition Act, 1868, s. 8, enacted that certain sections of the Settled Estates Act (19 & 20 Vict. c. 120) should extend and apply to money to be received on any sale effected under the authority of the Partition Act. The corresponding sections of the Settled Estates Act, 1877 (40 & 41 Vict. c. 18) are ss. 34, 35, and 36. The effect of these sections is that where real estate held in trust for infants is sold under a decree in a par- tition suit, the proceeds of sale are treated as realty (p). So, where a married woman (defendant in a partition suit), who had agreed to sell her share under section 5, died before conveyance, the purchase money of her share was held to pass to her heir- at-law (q). So, where a lunatic, so found in Chili, but not in England, was entitled to a share of real estate sold under the Partition Acts, it was held that his share of the proceeds must be treated as real estate, and could not be paid out to his curator ad bona (r). Jurisdiction in partition is given to the County Courts where the property does not exceed in value the sum of £500 («). Where an order is made under the Partition Act, 1876, dis- pensing with service of notice on any person or class of per- sons (t), and property is sold by order of the Court, the following provisions will have effect : — (1.) The proceeds of sale are to be paid into Court to abide the further order of the Court. (2.) The Court will, by order, fix a time, at the expira- tion of which the proceeds will be distributed, and may from time to time, by further order, extend that time. (3.) The Court will direct such notices to be given by advertisements or otherwise as it thinks best adapted for notifying to any persons on whom service is dispensed with, who may not have previously come in and established their claims, the fact of the sale, the time oi the intended (o) 31 & 32 Vict. c. 40, s. 6. And see Pennington v. Dalbiac, 18 W. R. 684 ; VerraU v. Cathcart, W. N. (1879), 100. (p) Foster v. Foster, 1 Ch. D. 588. (?) MUdmay t. Quiche, 46 L. J. (Ch.) 667. (r) Grimwood v. Bartels, 46 L. J. (Ch.) 788. (s) 31 & 32 Vict. b. 40, s. 12. (*) See p. 226. ACTION FOE PARTITION. 235 distribution, and the time within which a claim to partici- pate in the proceeds must be made. (4.) If at the expiration of the time so fixed or extended the interests of all the persons interested have been ascer- tained, the Court will distribute the proceeds in accordance with the rights of those persons. (5.) If at the expiration of the time so fixed or extended the interests of all the persons interested have not been ascertained, and it appears to the Court that they cannot be ascertained, or cannot be ascertained without expense disproportionate to> the value of the property or of the unascertained interests, the Court will distribute the pro- ceeds in such manner as appears to the Court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the Court, and with such reservations (if any) as to the Court may seem fit in favour of any other persons (whether ascer- tained or not) who may appear from the evidence before the Court to have any primd facie rights which ought to be so provided for, although such rights may not have been fully established, but to the exclusion of all other persons, and thereupon all such other persons will be excluded from participation in those proceeds on the dis- tribution thereof, but notwithstanding the distribution any excluded person may recover from any participating person any portion received by him of the share of the excluded person (u). Where in an action for partition two or more sales are made, Provision if any person who has by virtue of the Partition Act, 1876, been wnere P er " excluded from participation in the proceeds of any of those eluded sales establishes his claim to participate in the proceeds of a fr01 ? P™' r x *■ ceeds oi subsequent sale, the shares of the other persons interested in prior sale the proceeds of the subsequent sale will abate to the extent (if establishes 1 * x his claim any) to which they were increased by the non-participation of on subse- the excluded person in the proceeds of the previous sale, and 1 uent sa ' e - will to that extent be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale if his claim thereto had been established in due time (v). («) 39 & 40 Vict. c. 17, s. i. (*)• Id. s. 5. 236 PARTICULAR ACTIONS. Request for sale or un- dertaking to purchase on part of persons under dis- ability. Claim for partition unneces- In an action for partition a request for sale may be made or an undertaking to purchase given on the part of a married woman, infant, person of unsound mind, or person under any other disability, by the next friend, guardian, committee in lunacy (if so authorised by order in lunacy), or other person authorised to act on behalf of the person under such disability ; but the Court is not bound to comply with any such request or undertaking on the part of an infant unless it appear that the sale or purchase will be for his benefit (w). A person of un- sound mind, not so found, may, by his next friend, bring an action for a sale in lieu of partition (x). And where persons under disability request a sale without appearing by a next friend, the Court will order a sale at the request of their counsel as a " person authorised to act on behalf of the person under disability," and the judgment will be prefaced accordingly (y). For the purposes of the Partition Acts, 1868 and 1876, an action for partition includes an action for sale and distribution of the proceeds, and in an action for partition it is sufficient to claim a sale and distribution of the proceeds, and it is not necessary to claim a partition (z). Mode of proceeding. (3.) The Settlement of Boundaries. In an action in the Chancery Division for-the ascertainment and settlement of boundaries a commission may issue as for- merly; but the usual course now seems to be to direct an enquiry at Chambers (a). A commission to settle boundaries partakes very much of the same nature as a commission of partition : it is nearly in the same form, and is sued out, executed, and returned, and the certificate of the Commissioners is objected to, confirmed, or quashed, in the same manner (aa). The judgment directs that after the lands have been set out the defendant is to deliver possession to the plaintiff, and that the plaintiff and his heirs are to hold and enjoy the same against the defendant, or any person or persons claiming under him (b). (w) 39 & 40 Vict. u. 17, s. 6. (x) Watt v. Leach, 26 W. E. 475. (y) Croohes v. Whit-worth, 10 Ch. D. 289. (z) 39 & 40 Vict. c. 17, s. 7. (a) See Spike v. Harding, 7 Ch. D. 871, at p. 876. (aa) Dan. Pr. 1033. (6) Lord Abergarenny v. Thomas, 1 West, 649. CHAPTER. II. ACTION FOR FORECLOSURE (a). a- This is an action brought by a mortgagee to obtain, the Nature of. judgment of the Court for payment of the amount due to him in respect of the mortgage, or that in default, the mortgagor be for ever foreclosed from his equity of redemption. By s. 34 of the Judicature Act, 1873, actions for foreclosure Indorse- are assigned to the Chancery Division, and the following is the me " t ° u form of indorsement of claim on the writ of summons provided summons, by App. A. Part II. of the Judicature Act, 1875 : — " The plaintiff's claim is to have an account taken of what is due to him for principal, interest, and costs on a mortgage dated the day of , made between [or by deposit, of title deeds], and that the mortgage may be enforced by foreclosure or sale." A foreclosure action is not an action for the recovery of land May be within Ord. XVII. r. 2 (b), and may, therefore, be joined with j^ with other causes of action without leave (c). causes of As a general rule, all persons interested in the security *° 10 . n- primarily, as the mortgagee, or derivatively, as his heir or personal representative, or as assignee or devisee of the security or debt are necessary parties to foreclosure actions (d) ; and all subsequent incumbrancers must also be made parties (e), A surety for the mortgagor who has paid a part of the debt is a necessary party (/). Since the 27 & 28 Vict. c. 112 (g), judg- ment creditors who have not issued execution need not be made (a) For forms, see Daniell's Forms, (d) Seton, 4th ed. 1050. 3rd ed. 831. (e) Fish. Mort. 890. (6) See p. 25. (/ ) Gedye r. Matson, 25 Beav. (c) Tawdl ». Slate Co., 3 Ch. D. 310. 629. (ff) See p. 179. 238 PARTICULAR ACTIONS. When ac- tion may be brought. Where several mort- Where trustee is also mort- Purchaser without notice. Action may be brought notwith- standing bankruptcy &c, of mortgagor. Applica- tion under 7 Ueo. 2, c. 20, ss. 2, 3. parties (h). In an action to foreclose lands in a register county, judgment creditors not registered are not necessary parties (t). If there be no special provision to the contrary, the mortgagee may bring an action for foreclosure at any time after default. And where there is an agreement that the debt shall not be called in for a certain time, the arrangement is to be under- stood to be conditional upon punctual payment of interest unless otherwise specified (j) ; or, if the property be leasehold, on due performance of the covenants (k). One of several joint mortgagees cannot, except under special circumstances (e.g., collusion), maintain an action for foreclosure against the mortgagor and his co-mortgagees (I). A trustee who is also a mortgagee of the trust estate may be allowed to sell, but not to foreclose, although under the instru- ment creating the trust he may have become expressly entitled to a charge (m). A purchaser for value without notice of a prior mortgage, which had been fraudulently concealed is liable to be fore- closed («). A mortgagee may bring an action for foreclosure notwith- standing the bankruptcy or liquidation of the mortgagor (o) ; and a mortgagee of a company in course of being wound up may, except under special circumstances, bring a like action (p). By 7 Geo. 2, c. 20, ss. 2 and 3, power is given to the Court, in a suit of foreclosure, upon application by the defendant having a right to redeem, and upon the admission of the right and title of the plaintiff, before the cause is brought to a hear- ing, to make such order or decree as the Court could have made if the cause had been regularly brought to a hearing ; but not where the right to redeem is disputed, or where questions of priority arise between incumbrancers, or where the premises are chargeable with further sums not appearing on the mort- gage, or where subsequent incumbrancers would be prejudiced. (h) Sari of Cork v. Russell, 13 Eq. Hotel Co., 7 Ch. D. 789. 21 °- (m) Tennant-v. Trenchard, 4 Ch. (i) Johnson v. Holdsworth, 1 Sim. 537. N - s - 106 - («) Heath y. Crealoch, 10 Ch. 22 ; U) Seaton v. Twyford, 11 Eq. Waldy v. Gray, 20 Eq. 238. 591 - (o) White t. Simmons, 6 Ch. 555 ; (A) Edwards v. Martin, 25 L. J. Coulthurst v. Smith, 29 h. T. 243. (Ch.) 284. (p) Lloyd v _ Lloyd> 6 Ch _ D 339 _ (Z) Luke v. South Kensington closure. ACTION FOR FORECLOSURE. 239 And the Act has been held not to extend to oases where relief apart from foreclosure is sought (q). Independently, however, of the Act, and where the requisitions have not been strictly complied with, payment to the mortgagee, or into Court, of the amount of the mortgage debt and interest will discharge the mortgagor, so that a foreclosure action cannot be maintained against him (r). By 15 & 16 Vict. c. 86, s. 48, the Court may in any suit for Applica- foreclosure, upon the request of the mortgagee, or of any subse- s Jg fau^ quent incumbrancer, or of the mortgagor, or any person claim- of fore- ing under them respectively, direct a sale of the property, instead of a foreclosure, on such terms as the Court may think fit to direct, and, if the Court shall so think fit, without pre- viously determining the priorities of incumbrances, or giving the usual or any time to redeem ; but if such request is made by any subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the Court is not to direct any such sale, without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in Court a reasonable sum of money, to be fixed by the Court, for the purpose of securing the performance of such terms as the Court may think fit to impose on the party making such request. A legal mortgagee cannot obtain an order for sale under the above section, unless it woidd be for the advantage of all parties (*). By consent, an immediate sale may be directed (t) ; and in some cases an immediate sale has been ordered adversely to the mortgagor («). In other cases a sale has been directed after a lapse of an interval varying from one to six months (y). The sum (if any) ordered to be deposited will be what is con- sidered enough to cover the expenses in case the sale should prove abortive ; and is applicable to indemnify the first ({) Bustard v. Clarice, 7 Ves. («) Marriott v. Kirkham, 3 Giff. 489. 536 ; Foster v. Harvey, 11 W. R. ()■) Seton, 4th ed. 1045, citing 899 ; Phillips r. Gutteridge, 4 D. &, Bourton r. Williams, 5 Ch. 655. J. 531 ; Smith v. Robinson, 1 Sm. & And as to payment into Court gene- Q. 140 ; Newman v. Selfe, 33 Beav. rally, see p. 46. 522. (8) Hurst v. Hurst, 16 Beav. (v) Smithy. Robinson, svp. ; New- 375. man v. Selfe, sup. ; Whitfield v. (t) Wigham v. Measor, 5 W. R. Roberts, 5 Jur. N. S. 113 ; Lloyd v. 394. Whittey, 17 Jur. 754. 240 PARTICULAR ACTIONS. Proceeds of sale. ■ Remedy of equitable mortgagee. Usual directions on the hearing. Mode of conducting sale. Attendance to receive money found to be due. mortgagee for the costs of an attempted sale (w). The order for sale must usually be made at the hearing (#). A, sale of mortgaged property has been ordered upon an interlocutory motion by the plaintiff in an action for fore- closure (y) ; but in a recent case this was refused (yy). According to the present practice, the proceeds of sale are directed to be applied in payment of what shall be certified to be due to the plaintiff, and in the meantime to be paid into Court ; and under the liberty to apply the plaintiff may by summons at Chantbers obtain payment (z)-. The remedy of an equitable mortgagee by deposit of deeds is by foreclosure and not by sale (a) ; but if the deposit is accom- panied by an agreement to execute a legal mortgage with power of sale, the Court may direct a sale under s. 48 of 15 & 16 Vict. c. 86 (6). An action for foreclosure proceeds , in the same way as an ordinary action up to the hearing, upon which, unless a sale be directed as before mentioned, an account is directed to be taken of what is due upon the mortgage security and for the costs of the action, and the plaintiff is directed to reconvey'the mort- gaged premises upon payment of the amount found to be due within six months after the date of the Chief Clerk's certificate, and to deliver up upon oath to the defendant or some person appointed by him all deeds and writings in his custody or power relating to the mortgaged premises; or that in default the defendant shall thenceforth be absolutely foreclosed from all equity of redemption in such premises. 'If a sale is directed, the proceedings thereupon take place in the manner pointed out in Part V., Chapter 3, Section 12. The plaintiff must, unless the time has been enlarged, attend either personally or by his attorney duly authorised, at the time and place appointed, to receive the money found due to him ; and if, upon that occasion, the defendant does not attend to (w) Whitfield v. Roberts, 5 Jur. N. S. 113 ; Bwrmestcr v. Moxon, 35 Beav. 310 ; Corsellis t. Patman, i Eq. 156. (a) Wayn v. Lewis, 1 Dr. 487 ; but see Laslett v. Cliffe, 2 S. & Q. 278 ; Woodford v. Brooking, 17 Eq. 425. (y) 16 & 16 Vict. c. 86, s. 48 ; Ord. XL. r. 11 ; Davis v. Ashwin, 26 W. R. 139. (yy) London and County Bank v. Dover, 11 Ch. D. 204. (z) Seton, 4th ed. 1048. (a) James v. James, 16 Eq. 153. (b) Woof v. Barron, W. N. (1873) 71 ; and see York Union Co. v. Artley, 11 Ch. D. 205. ACTION FOR FORECLOSURE. 241 pay the money, the plaintiff's right to the estate will become absolute. He must, however, in order to complete his title, Final procure a final order confirming it : otherwise the decree for order - foreclosure will not be pleadable. This order is obtained on motion of course, supported by an affidavit of the plaintiff, or his attorney, of due attendance at the appointed place, and of non-payment by the defendant of the amount certified to be due. Where the plaintiff does not attend personally, he must, nevertheless, make an affidavit of non-payment (c). The Court will make the' order absolute although the person who attended to receive the money was not authorised by power of attorney, if no one attended to pay it (d). Where one of two joint mort- gagees died before the day for payment, a fresh day was appointed for payment to the survivor (e). The Court will enlarge the time in a proper case, but not as of course (/) ; and usually only upon payment of the interest and costs certified to be due (g) ; and the costs of the application (h). An order absolute for foreclosure may be reopened at the discretion of the Court (i). Judgment for foreclosure does not discharge other collateral Effect of securities which the mortgagee may have. He may either first fore °l° Bure enforce such securities, and then foreclose for the balance ; or lateral he may foreclose first, and afterwards if the value of the pro- seountles - perty prove less than his debt, he may realise his collateral securities ; but by so doing he opens the foreclosure and gives a new right of redemption to the mortgagor. If after foreclosure he sells the estate so that he cannot restore it, and thus puts it out of the mortgagor's power to get it back by redemption, he will be restrained from putting in force any collateral security, although the amount due on the mortgage has not been realised by the sale ; but even after foreclosure if the inability to restore the estate on payment of the mortgage money arises from eviction of the mortgagee, through no default on his part, he is still entitled to prove for the amount due for principal, interest, and costs (f). (e) Dan. Pr. 858, 859. 287 ; Eyre v. Sanson, 2 Beav. 478. (d) Cox v. Watson, 7 Ch. D. 196 ; (g) Geldard v. Hornby, 1 Hare, but see Ourney t. Jackson, 1 S. & G. 251. App. 26 ; Lechmere v. Clamp, 31 (h) Holford v. Tate, 1 K. & J. Beav. 578. 677 ; Finch v. Shaw, 20 Beav. 556. (c) Kingsford r. Poile, 8 W. E. (i) Campbell v. Holyland, 7 Ch. 110. D. 166. (/) Edwards v. Cunliffe, 1 Madd. (;') Seton, 4th ed. 1088, 1089, R 242 ' . PARTICULAR ACTIONS. Costs. The mortgagee is entitled to the costs of an action for fore- closure, and such right can only be lost by positive misconduct, of a vexatious, oppressive, or fraudulent character, or by im- proper resistance to the right of the mortgagor to redeem (k). _ And by Ord. LV. r. 1, a mortgagee is not to be deprived of any right to costs out of a particular estate or fund to which he ■would be entitled according to the rules theretofore acted upon in Courts of equity. In actions for foreclosure, or for enforcing any charge or lien in which the mortgage whereon the suit is founded, or the charge or lien sought to be enforced, is under the amount of £1000, the lower scale of costs is allowed (I). County The County Courts have jurisdiction in actions for fore- closure, or for enforcing any charge or lien, where the mortgage, charge, or lien does not exceed £500 (m). citing Lockhart v. Hardy, 9 Beav. Walker v. Jones, 1 P. C. 50 ; Re 349 ; Palmer v. Hendrie, 27 BeaT. BurreU, 7 Eq. 399. 349, 28 Beav. 341 ; Tooke v. Hart- (k) Seton, 4th ed. 1059, 1060. ley, 2 Bro. C. C. 125 ; Perry v. (I) Add. Rules (Costs), Ord. VI. Barker, 8 Ves. 527, 13 Ves. 198 ; (m) 28 & 29 Vict. c. 99, n. 1. Courts. CHAPTER III. ACTION FOR REDEMPTION (a). » This is an action brought by a mortgagor against the mort- Nature of. gagee for leave to redeem the mortgaged estate, notwithstand- ing the time limited in the mortgage deed for the repayment of the mortgage money has expired. Until foreclosure, the mortgagor, whether in possession or Doctrine of not, is considered in equity as substantially the owner of the ^"'ty estate (6). Hence, if the mortgagor applies to be allowed to re- deem before the right of redemption is lost, the mortgagee will then be treated precisely as a trustee for the mortgagor, inasmuch as he will be compelled to reconvey the estate, and account for every kind of profit that he has made in the ordinary way, or which, but for his wilful default, he might have made. (66). The common equity of redemption, or ordinary right which Nature of the mortgagor has in equity of redeeming the estate, is so in- ^wy o£ separable an incident to a mortgage, that it cannot be disan- tion. nexed from such a transaction, or controlled even by an express agreement. The mortgagor may, however, by a subsequent deliberate act, extinguish his equity of redemption. Thus a mortgagee may purchase the equity of redemption of the mort- gagor (c). But the Court views with suspicion the sale of the equity of redemption to the mortgagee, and where it is for a price considerably below the value and induced by pressure on the part of the mortgagee it will be set aside (d). By s. 34 of the Judicature Act, 1873, actions for redemption Indorse- are assigned to the Chancery Division, and the following is the aie ." t * form of indorsement of claim on the writ of summons provided summons. by App. A., Part II. of the Judicature Act, 1875 : — (a) For forms, see Daniell's Forms, (lb) Sm. Man. Eq. 12th ed. 345, 346 3rd ed. 831. (<0 Id. 346, 347. (4) See 36 & 37 Vict. e. 66, s. 25 (5). (d) Ford v. Olden, 3 Eq. 461. » 2 244 PARTICULAR ACTIONS. " The plaintiff's claim is to have an account taken of "what, if any thing, is due on a mortgage dated and made between [parties], and to redeem the property com- prised therein." Parties. As a general rule, all persons interested in the equity of re- demption, and, therefore, in the proper taking of the account, either primarily, as the mortgagor, or derivatively, as the trustee in bankruptcy of the mortgagor, the assignees of the equity of redemption, the devisee and heir of the mortgagor, and his personal representative are necessary parties to redemption actions (e). And, as a general rule, the mortgagor and all persons having any interest in the equity of redemption have a right to redeem (ee). The right extends to judgment creditors who have issued execution under 27 & 28 Vict. c. 112 (/) ; credi- tors who have obtained a decree for sale (g) ; assignees of the mortgagor (h) ; a doweress married since 1st Jan. 1834 (t) ; a jointress (/) ; guardians (k) ; committees of lunatics (with leave of the Court) (I) ; the heir-at-law (m) ; joint tenants and tenants in common (n) ; tenants by the curtesy (o) ; tenants for life (p) ; tenants in tail, who have joined with the tenants for life in mortgaging the estate (q) ; subsequent mortgagees (?•) ; sureties for the mortgagor (*) ; volunteers (t) ; sequestrators (w) ; trus- tees in bankruptcy (v). The right to redeem must be clearly (e) Seton, 4th ed. 1050. (o) Jones v. Meredith, Bunb. 346. (ee) See Id. 1051—1053, for the {p) Riley v. Croydon, 2 Dr. & illustrations of the rule which follow. Sm. 293 ; Pawley v. Colyer, 16 W. (/) Mildred v. Austin, 8 Eq. R. 114; Safety v. Ming, 1 Keen, 220 ; Beckett v. Buckley, 17 Eq. 618 ; Wicks v. Scrivens, 1 J. & H. 435 ; Earl of Cork v. Russell, 13 Eq. 215 ; Aynsley v. Reed, 1 Dick. 249. 210. ( 2 ) Playford v. Playford, 4 Ha. (g) Christian v. Field, 2 Ha. 546. 177. (r) Ramsbottom v. Willis, 5 L. J. (h) Fish. Mort. 3rd ed. 764. (Ch.) 92 ; King v. Smith, 1 Coll. (i) Id. 759. 555 ; Rhodes v. Buckland, 16 Beav. (;') Howard v. Harris, 1 Ver. 33, 212. 190- («) Green v. Wynn, 4 Ch. 204 ; (k) Palmes v. Danby, Prec. Ch. Pearl t. Deacon, 24 Beav. 180. 13 7. (t) Howard v. Harris, 1 Ver. {I) Exp. Grimstone, Amb. 706. 193 ; Sand v. Cartwright, 1 Ch. Ca. (m) Lloyd v. Wait, 1 Ph. 61 ; 59. Pym v. Bowreman, 3 Swan. 241, n. («) Fawcet v. FothergiU, 1 Dick. (n) Wynne v. Styan, 2 Ph. 306 ; 19 ; Jones v. Meredith, Bunb. 347. Waugh v. Land, G. Coop. 130. (v) Pish. Mort. 3rd ed. 770. ACTION FOR REDEMPTION. 245 shown (w) ; but a person only partially interested in the equity of redemption may redeem, the reconveyance being, of course, subject to the rights of the other parties interested (x). A purchaser of an equity of redemption cannot bring an Action by action to redeem until he has completed his purchase (y). purchaser. A second mortgagee, buying under a power of sale in the first Purchase mortgage cannot be redeemed (z) ; unless he has notice that mortgagee the terms of the power requiring notice of sale to be given to under the mortgagor have not been complied with (a). ]^Jein first Where distinct estates of different values are separately mort- mortgage, gaged as securities for .distinct debts, or successively to secure Consolida- the same debt with further advances, by one mortgagor to the same mortgagee, the latter has a right to consolidate, i.e., to hold all the estates as a security for the aggregate of all the debts, and to require that if the smaller estate will not pay the whole debt, the mortgagor shall not redeem the more valuable without also paying the debt which is secured upon the less valuable estate, i.e., he cannot redeem one without redeeming all (b). Where there are more incumbrancers than one, the mesne in- Where cumbrancers must successively redeem all prior to them, or be ? everal ^ * ' lncum- foreclosed ; and must be redeemed by, or will be entitled to hrancers. foreclose all subsequent to them. And a puisne mortgagee cannot bring an action to redeem those mortgagees who are prior to himself without making all subsequent to himself parties (c). By 37 & 38 Vict. c. 57, s. 7, it is enacted that when a mort- "WTien ac- gagee shall have obtained the possession or receipt of the profits * io " "iust of any land or the receipt of any rent comprised in his mort- (37 & 38 gage, the mortgagor or any person claiming through him, shall ^ lc h. not bring any action or suit to redeem the mortgage but within twelve years next after the time at which the mortgagee ob- tained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of (w) Brown v. Cole, 14 Sim. 427. Beav. 494. [x) Pearce v. Morris, 5 Ch. 227. {a) Parkinson v. Hanhury, 2 H. See, however, Cholmondeley v. Clin- L. 1. ton, 2 J. & W. 134. (5) Seton,4thed. 1157, citing Jones (y) TasJcer v. Small, 3 My. & C. v. Smith, 2 Ves. Jr. 376 ; Beevor v. 69. Luck, 4 Eq. 537. (z) KirhviooA v. Thompson, 2 H. (c) Seton, 4th ed. 1085. & M. 392; Shaw v. Bunny, 33 21-6 PARTICULAR ACTIONS. Provision ■where more than one mortgagor or mort- Usnal directions on the hearing. his right to redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee or the person claiming through him ; and in such case no such action or suit shall be brought but within twelve years next after the time at which such acknowledgment, or the last of such, if more than one, was given. When there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if given to all such mortgagors or persons ; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mort- gagees or persons shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money, or land, or rent ; and where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage. An action for redemption proceeds in the same way as an ordinary action up to the hearing, upon which an account is directed to be taken of what is due to the defendant upon the mortgage security, and for the costs of the action, and the de- fendant is directed to reconvey the mortgaged premises upon payment of the amount found to be due within six montlis after the date of the Chief Clerk's certificate, and to deliver up upon ACTION FOR REDEMPTION. 247 oath to the plaintiff or some person appointed by him all deeds and writings in his custody; or power relating to the mort- gaged premises ; or that in default the plaintiff's action do stand dismissed out of Court, with costs to be taxed. Each succeeding party after the first, who is entitled to redeem, is allowed a period of three months for that purpose from the ex- piration of the time allowed for - redemption to the party im- mediately preceding him ; and the Court will not, as a general rule, extend the time limited for redemption (d). The defendant must attend either personally or by his attorney Attendance duly authorised by ppwer of attorney (dd), at the time and t0 recelve place appointed, to receive the money found due to him, and to found to deliver up the deeds and writings relating to the property. If te due - the plaintiff makes default in payment, it will be necessary for o ^ the defendant to obtain a final order to dismiss the action, which may be obtained on motion of course, supported by an affidavit of the defendant, or his attorney, of due attendance at the appointed place, and of non-payment by the plaintiff of the amount certified to be due. If the defendant does not attend personally he must nevertheless make an affidavit of non-payment. The final order is equivalent to a judgment for foreclosure (e). The mortgagee is entitled to the costs of an action for Costs, redemption, and such right can only be lost by positive miscon- duct, of a vexatious, oppressive, or fraudulent character, or by improper resistance to the right of the mortgagor to redeem (ee). And by Ord. LV. r. 1, a mortgagee is not to be deprived of any right to costs out of a particular estate or fund to which he would be entitled according to the rules theretofore acted upon in Courts of equity. In actions for redemption in which the mortgage whereon the suit is founded is under the amount of £1,000, the lower scale of costs is allowed (/). The County Courts have jurisdiction in actions for redemp- County tion where the mortgage does not exceed £500 (g). Courts. (d) See Seton, 4th ed. 1085. (ee) Seton, 4th ed. 1059, 1060. (dd) But see p. 241, n. (d). (/) Add. Rules (Costs), Ord. VI. (e) Hansard v. Hardy, 18 Ves. (g) 28 & 29 Viet. c. 99, s. 1. 460. CHAPTER IV. Ground of jurisdic- tion. Action must be brought in Chancery Division. Valuable considera- tion neces- sary. Decree for per- formance of part of an agree- ment. Damages. ACTION FOR SPECIFIC PERFORMANCE (a). The specific performance of contracts is decreed not upon any distinction between realty and personalty, but because damages may not, in the particular case, afford a complete remedy (b). But if from the peculiar circumstances of the case damages would not amount to an adequate compensation specific performance will be decreed of contracts respecting personalty. By s. 34 of the Judicature Act, 1873, all causes and matters for the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases, are assigned to the Chancery Division. And it has been decided that if in another Division a question of specific performance arises the case is one which ought to be transferred to the Chancery Division (c). Specific performance will not be decreed unless the agreement is supported by valuable consideration (d). Generally speaking, specific performance will not be decreed of part only of an agreement (e) ; but where contemporaneous agreements or parts of one agreement are held to be separable and not to constitute a single arrangement, specific performance may be decreed of one of them, although the remainder may be incapable of being enforced, or may not have been performed by the plaintiff (/). By 21 & 22 Vict. c. 27, s. 2, it is enacted that in all cases in (a) For forms, see Daniell's Forms, 3rd ed. 831. (6) See judgment of Sir J. Leach, V. -C. , in Adderley v. Dixon, 1 S. & S. 610. (c) Hillman v-. Mayhem, 1 Ex. D. 132. (d) Cochrane v. Willis, 34 Beav. 359. (e) Sills v. Oroll, 9 Jur. 645. (/) Seton, 4th ed. 1296, citing Odessa Tramways Co. v. Mendel, 8 Ch. D. 235 ; Wilkinson t. Clements, 8 Ch. 96. ACTION FOE, SPECIFIC PERFORMANCE. 249 which the Court has jurisdiction to entertain an application for the specific performance of any covenant, contract, or agree- ment, the Court may, if it shall think fit, award damages to the party injured, either in addition to, or substitution for, such specific performance. But a plaintiff will not obtain damages instead of specific performance, unless he can show that he had an equity at the time of issuing the writ (g). In almost every case it is the duty of a vendor, when there is no question at issue but that of title between him and the purchaser, to avail himself of the opportunity of having an im- mediate reference, and so saving the multiplication of unneces- sary costs (h) ; and by Ord. XXXIII. the Court or a judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be made or taken, notwith- standing that it may appear that there is some special or further relief sought for or some special issue to be tried. When an order has been made for inquiry as to title, a final judgment may be made at the hearing without further con- sideration (i). Generally where there is a difference capable of being ascer- tained between what is promised, and what can be performed, the Court may measure the difference, and decree specific performance with compensation (/). By the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 9, a vendor or purchaser of realty or leaseholds in England, or their representatives respectively, may apply in a summary way to a judge of the Chancery Division, in Cham- bers, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or con- nected with the contract (not being a question affecting the existence or validity of the contract), and the judge shall make such order upon the application as to him shall appear just ; and shall order how, and by whom, all or any of the costs of and incident to the application are to be borne (h). The appli- Inquiry as to title. Compensa- tion. Applica- tion under Vendor and Purchaser Act, 1874. (g) White v. Bob]/, 37 L. T. 652. (A) James, L. J. in Phillipson v. Qibbon, 6 Ch. 438. As to inquiry at Chambers as to title, see Part V. Chapter III. Section 9. (i) See Turquand v. Wilson, 1 Ch. D. 85. U) Seton, 4th ed. 1315, 1316, citing Lord Brooke v. Bounthwaite, 5 Ha. 298, 303 ; Powell v. Elliott, 10 Ch. 424. There are, however, many exceptions to the rule, for which see Seton, 4th ed. 1316, and cases there cited. (£) For forms under this section, see Daniell's Forms, 3rd ed. 1252. 250 PARTICULAR ACTIONS. Plaintiff's remedies where de- fendant refuses to comply with judg- ment. Trustee Act, 1850. cation is to be made by summons entitled in the matter of the agreement, and in the matter of the Act. The title should shortly state the date of the agreement, the parties to it, and the particulars of the property comprised in it (I). When such a summons has been taken out, the parties are in precisely the same position as if a decree for specific performance and a reference to Chambers as to title had been made. Therefore evidence will be admitted, and facts, as well as points of law, decided (m) ; but not questions of controverted facts (n). The remedies open to a plaintiff where the defendant refuses to comply with the judgment or decree are as follows : — (1.) He may obtain an order fixing time and place for payment and conveyance, or a period within which the judgment or decree is to be obeyed, and if this order be not obeyed, may proceed against the defendant for contempt. (2.) If a purchaser of land, he may enforce the agreement by means of a vesting order. (3.) He may apply for an order rescinding the agree- ment. (4.) If a vendor, he may enforce his vendor's lien (o). By s. 30 of the Trustee Act, 1850 (13 & 14 Vict. c. 60), where a decree is made for specific performance of a contract concerning lands, the Court may declare that any of the parties to the suit wherein such decree is made are trustees of such lands, or any part thereof, within the Act, or declare concerning the interests of unborn persons who might claim under any party to the suit, or under the will or voluntary settlement of any person deceased, who was during his life a party to the transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who, upon coming into existence, would be trustees within the Act, and the Lord Chancellor, or the Court, may make such orders as to the estates, rights, and interests, of such persons, born or unborn, as the Court or Lord Chancellor may under the Act make concerning the estates, rights, and interests of trustees, born or unborn. After a decree for conveyance, applications for vesting orders under this section- may be made in Cham- bers (p). (Z) Seton, 4th ed. 1318. (m) lie Burroughs, Lynn, and Sexton, 5 Ch. D. 601. (n) Re Popple and JBwrratt, 25 W. E. 248. (o) Seton, 4th ed. 1327. (p) Cons. Ord. XXXV. r. 1 (4). ACTION FOR SPECIFIC PERFORMANCE. 251 The County Courts have jurisdiction in actions for specific County performance of any agreement for the sale, purchase, or lease Courta - of any property where, in the case of a sale or purchase, the purchase money, or, in case of a lease, the value of the property does not exceed £500 (g). ({) 30 & 31 Vict. o. 142, s. 9. CHAPTER V. When an inter- pleader action lies. Affidavit of no col- lusion. INTERPLEADER ACTION (a). An interpleader action may be brought in cases where two or more persons claim the same thing by different or separate interests, and another person, not knowing to which of the claimants he ought of right to render a debt or duty, or to deliver property in his custody, fears he may be hurt by some of them; his object in bringing the action being to compel them to contest the matter between themselves without involving him in any vexatious litigation respecting it (J). Thus, where a tenant is liable to pay rent, but there are several persons claiming title to it in privity of contract or tenure he may bring an interpleader action to compel them to ascertain to whom the rent is payable ; but if a claim to rent is set up by a mere stranger, under a title paramount, and not in privity of contract or tenure, the tenant cannot compel his landlord to interplead with such stranger; for the demand made by the latter is not a demand of the same nature or in the same right ; and, besides, the tenant is under a contract to pay the rent to his landlord (c). So, in the case of principal and agent, if the principal has created an interest in or lien on the funds in the hands of the agent, in favour of a third person, and the nature and extent of that interest or lien is controverted between the principal and such third person, an interpleader will lie; but otherwise, property put into the hands of a private agent by his principal, or received by an agent for his principal, is not the subject of an interpleader (d). In order to prevent an interpleader being made the instru- (a) For forms, see Daniell's Forms, 3rd ed. 121, 122. (6) Mit. PI. 5th ed. 58 ; Jones v. Thomas, 2 Sni. & G. 186 ; Nelson v. Bwrter, 10 L. T. 743. (c) Sm. Man. Eq. 12th e3. 439; Cook v. Sari of Spsslyn, 1 Gif. 167. (d) Sm. Man. Eq. 12th ed. 440. INTERPLEADER ACTION. 253 ment of delay or of collusion with one of the parties, the Courts require that the plaintiff should make an affidavit that there is no collusion between him and any of the other parties ; and also, if it is a case of money due by him, that he should bring the money into Court, or at least should offer to do so (e). A copy of the affidavit should be annexed to each copy of the writ of summons for service. Where it appears to the Court or a judge that a question in Power of an action should be determined not only as between the plaintiff ^ge ^ and defendant, but as between the plaintiff, defendant, and any order ques- other person, or between any or either of them, the Court or a deter- judge may, on notice being given to such last-mentioned person, mined make such order as may be proper for having the question so par ti e s to determined (/). an action As to the practice upon an interpleader summons after action other " y brought, see p. 43. person. Inter- pleader (e) Sm. Man. Eq. 12th ed. 441, (/) Ord. XVI. r. 17. See pp. summons. 442. 47, 48. CHAPTER VI. ACTION TO PERPETUATE TESTIMONY (a). Grounds j T h ap p en8 occasionally that a person entitled presumptively for action. „ . . . . , . .... . . , to some future interest in property finds his title impeached or threatened by some other person interested in disputing it, and yet, in consequence of the future or reversionary nature of that title, the law affords him no means of asserting and establish- ing it. Meanwhile, the very testimony upon which his title depends may be in danger of perishing by the death of those who, if alive, would be able to give evidence in its support. In this state of things it is competent to the party claiming such future interest to bring an action against all those who are interested in disputing it, asking that witnesses may be examined respecting the point in controversy, and that the testimony may thus be perpetuated (6). 5 & 6 Vict. By 5 & 6 Vict. c. 69, it is enacted that any person who c- 69- would, under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot be brought to trial before the happening of such event, may [bring an action] to perpetuate any testimony which may be material for establishing such claim or right ; and that if the Crown has any interest in the matters in question, the Attorney-General must be made a defendant, to represent such interest. But the Act does not give a party any stronger rights than would belong to him in an actual and present litigation (c). (a) For forms, see Daniell's Forms, FUzhardinge Berkeley, 6 Ves. 25. 3rd ed. 833. (c) Campbell v. Dalhousie, 1 H. L. (6) Haynes's Outlines of Eq., Lect. Sc. 462. VI., 4th ed. 190, citing Dwsley v. ACTION TO PERPETUATE TESTIMONY. 255 An affidavit of the circumstances by which the evidence Affidavit intended to be perpetuated is in danger of being lost must be of faots " filed upon the issuing of the writ of summons ; and under the old practice the bill must have shown that the facts, to which the testimony of the witnesses proposed to be examined was conceived to relate, could not be immediately investigated by the Court, or that, before the facts could be adjudicated upon, the evidence of a material witness was likely to be lost by his death or departure from the realm. The bill must also have alleged that the plaintiff had an interest which was not capable of being barred by the defendant, and that the defendant had or claimed to have an interest to contest the title of the plaintiff in the subject of the proposed testimony (d). It is presumed that under the new practice these facts should be stated in the affidavit above mentioned, and that a copy of such affidavit should be annexed to each copy of the writ of summons for service. Under the former practice, the plaintiff obtained an appoint- Time for ment from the Examiner and proceeded to examine his tion of witnesses as soon as the replication had been filed ; and, by witnesses. analogy, it is presumed that the proper time for examination of witnesses under the present practice would be after the close of the pleadings. If the plaintiff should neglect to proceed, the Court will, on Neglect of motion by the defendant, order him to proceed to the examina- P lalntlff tion of his witnesses within a limited time, or, in default, that he pay the defendant's costs of the action (e). The evidence is taken before one of the examiners of the Evidence, Court, or an examiner specially appointed, in the presence of tow te ken. all parties; and the cross-examination and re-examination follow immediately upon the examination in chief; or the evidence may be taken, either wholly or partially, by affidavit : the witness being, however, subject to cross-examination (/). If a witness is resident out of the jurisdiction, the provisions of the 22 Vict. c. 20 (g) may be resorted to (h). When the witnesses have been examined the action is at an Applica- end (i) ; and if the defendant has not examined any witnesses tlon y (d) Dan. Pr. 1419, 1420. (g) See p. 116. (c) Semen v. Carpenter, 11 Sim. (A) Campbell v. Attorney-Oeneral, 22 ; Wright v. Taiham, id. 459. 2 Ch. 571. (/) Dan. Pr. 1421. (i) Mormon v. Arnold, 19 Yes. 256 PARTICULAR ACTIONS, defendant for his costs. Evidence to be filed. Order to use evi- dence at trial. in chief he may obtain an order for his costs on motion or petition of course (f). When the evidence has been taken it is transmitted to the Central Office to be filed (k). The evidence cannot be used at the trial without an order of the Court. The order is obtained on motion, of which notice must be given ; and must be supported by evidence of the death of the witness, or that he is too ill, or cannot be com- pelled, to attend to give evidence (I). 670 ; Vwughan v. Fitzgerald, 1 Sch. & Lef. 316. ( j) Foulds v. Midgley, 1 V. & B. 138; Wright v. Tathcm, 2 Sim. 459 ; Beavan v. Carpenter, 11 Sim. 22. (Jc) See p. 110. (Z) Dan. Pr. 1422. PAKT III. THE STATUTORY JURISDICTION OF THE CHANCERY • DIVISION. INTRODUCTION. By the Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 34, all Statutory causes and matters to be commenced after the commencement l urlsd ; e " tion ot of that Act, under any Act of Parliament, by which exclusive Court of jurisdiction in respect to such causes or matters has been given cl,ance ^y r ° assigned to to the Court of Chancery, or to any judges or judge thereof re- Chancery spectively, except appeals from County Courts, are assigned to Dlvlsl0n - the Chancery Division of the High Court of Justice. Where a petition is presented under the authority of an Act Petition, of Parliament to the High Court of Justice, the petition must title( j be entitled in the matter of that Act, and in a substantial matter also. In practice the substantial matter is usually and more conveniently placed before the title of the Act (a). (a) Darnell's Forms, 3rd ed. 1150, where see examples. "Settle- ment." ' Settled •CHAPTEK I. THE SETTLED ESTATES ACT, 1877 (a). (40 & 41 Viot. c. 18.) (1.) Settlement — Settled Estates. A "settlement," within the above Act, is Parliament, deed, or other instrument under hereditaments of any tenure, or any estates therein, stand limited to or in trust for any persons by way of succession ; and " settled estates " are all hereditaments of any tenure, and all estates or interests in any such hereditaments which are the subject of a settlement. In determining what are settled estates under the Act, the Court is to be governed by the state of facts, and by the trusts or limitations of the settlement at the time of the settlement taking eifect (b). any Act of which any or interests Court may exercise powers re- peatedly unless con- trary to settlement. (2.) Jurisdiction and Powers of the Court. Matters under this Act are to be assigned to the Chancery Division (c). The Court may repeatedly exercise any of the powers con- ferred on it by the Act, and in respect of the same property or not, but not if an express declaration that they shall not be exercised is contained in the settlement. And the circumstance of the settlement containing powers to effect similar purposes is not to preclude the Court from exercising any of the powers conferred by the Act, if it shall think that the powers of the (a) For forms, see Daniell's Forms, 3rd ed. 1255—1271. (6) 40 & 41 Viet. c. 18, s. 2. As to what were held to be settled estates under the corresponding de- finitions of the former Acts, see Re La'mg's Trusts, 1 Eq. 416 ; Collett v. Collebt, 2 Eq. 203; Re Green, 10 Jur. 1098 ; Re Shep- heard's Estate, 8 Eq. 571 ; Re Horn's Settled Estates, 29 L. T. 830 ; Re Bwrdin's Will, 2 L. T. 70 ; lie Birth, 11 W. R. 739 ; Re Williams's Settled Estates, 20 W. R. 967 ; Re Goodwin's Settled Estates, 3Giff. 620. (o) 40 & 41 Vict. e. 18, s. 3. THE SETTLED ESTATES ACT, 1877. 259 settlement ought to be extended (d). But nothing in the Act Court may is to be construed to empower the Court to authorise any lease, autn ° rlse ~ J ' no act sale, or other act beyond the extent to which in the opinion of which the Court the same might have been authorised in and by the set * 1 ° r settlement by the settlor or settlors (e). authorise. After the completion of any lease or sale, or other act under Acta of the authority of the Court, and purporting to be in pursuance Court not of the Act, the same is not to be invalidated on the ground validated, that the Court was not by the Act empowered to authorise the same, except that no such lease, sale, or other act is to have any effect against persons whose concurrence or consent ought to be obtained, or who ought to be served with notice, or in respect of whom an order dispensing with such service ought to have been obtained (/). Nothing in the Act is to be construed to create any obligation Act creates on any person to make or consent to any application to the ".° otll S a " Court, or to exercise any power (g). The Act does not authorise a sale or lease beyond twenty- Entails one years of any settled estates in respect of which by any Act ? re ^ e ? f of Parliament tenants in tail, are restrained from barring their Parlia- estates, or where the reversion is vested in the Crown (h). Nor ment ' does the Act authorise a lease of copyholds not warranted by the custom of the manor, without the consent of the lord, nor otherwise prejudice his rights (i). The Act applies to all matters existing at the time of the Applica- passing thereof (,;'), whether proceedings were actually pending tlon or not ; and proceedings in such matters may be continued or taken under the Act as if originating thereunder, or under the Acts thereby repealed, or partly under the repealed Acts, and partly under the existing Act, according to circumstances ; but with respect to demises to be made without application to the Court, the Act extends only to settlements made after 1st Nov. 1856 (/£). No application is to be granted by the Court where a similar Applica- application has been rejected by Parliament on its merits, or * ion no \ H' ' 'be granted (d) 40 & 41 Vict. u. 18, s. 38. As 573 ; Beioley y. Carter, 4 Ch. 230. to what is an "express declaration," (g) 40 & 41 Vict. c. 18, a. 53. see Be WiUiams, W. N. (1878), 189. (h) Id. a. 55. (e) 40 & 41 Vict. u. 18, a. 39. (i) Id. s. 56. (/) Id. s. 40. As to effect of (;) 28th June, 1877. this provision, see Be Thompson, (k) 40 & 41 Vict. c. 18, s. 57 Joh. 418 ; Be Shepheard, 8 Eq. 571, S 2 260 THE STATUTORY JURISDICTION. where similar application rejected by Parlia- ment. reported against by the judges ; and evidence must be pro- duced on every petition to the Court that no such application has been made by the petitioner or any person entitled ; or, if made, that it was not rejected on its merits, or reported against by the judges to whom it was referred (I). Where an applica- tion had been rejected by Parliament the Court assumed a rejection on the merits (m). Power to Court to authorise certain conditions. (3.) Leases. The Court may, if it shall deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in the Act contained, authorise leases of any settled estates, or of any rights or privileges over or affecting any settled estates, for any purpose whatsoever, whether involving waste or not, provided the following conditions be observed : — (1.) Every such lease is to be made to take effect in possession at or within one year next after the making thereof, and it is to be for a term of years not exceeding for an agricultural or occupation lease, so far as relates to estates in England, twenty-one years, or so far as relates to estates in Ireland, thirty-five years, and for a mining lease, or a lease of water mills, way leaves, water leaves, or other rights or easements, forty years, and for a repairing lease sixty years, and for a building lease ninety-nine years. But any such lease (except an agricultural lease) may be for such term of years as the Court shall direct, where the Court shall be satisfied that it is the usual custom of the district, and beneficial to the inheritance, to grant such a lease for a longer term. (2.) On every such lease is to be reserved the best rent or reservation in the nature of rent, either uniform or not, that can be reasonably obtained, to be made payable half yearly or oftener without taking any fine or other benefit in the nature of a fine. In the case of a mining lease, a repairing lease, or a building lease, a peppercorn rent, or any smaller rent than the rent to be ultimately made (I) 40 & 41 Vict. c. 18, s. 32 ; Ord. 17 of Settled Estates Act Orders, 1878. (m) Me Wilson, 1 L. T. 25; Shrewsbury v. Scott, 6 C. B (N. S ) 1, 221. THE SETTLED ESTATES ACT, 1877. 261 payable, may, if the Court shall so direct, be made payable during all or any part of the first five years of the term. (3.) Where the lease is of any earth, coal, stone, or mineral, a certain portion of the whole rent or payment reserved is to be from time to time set aside and invested as in the Act mentioned (n) ; namely, when and so long as the person for the time being entitled to the receipt of such rent is a person who, by reason of his estate, or by virtue of any declaration in the settlement, is entitled to work such earth, &c, for his own benefit, ,pne fourth part of such rent, and otherwise three-fourth parts thereof; and in every such lease sufficient provision is to be made to ensure such appli- cation of the aforesaid portion of the rent by the appointment of trustees, or otherwise as the Court shall deem expedient. (4.) No such lease is to authorise the felling of any trees except so far as shall be necessary for the purpose of clear- ing the ground for any buildings, excavations, or other works authorised by the lease. (5.) Every such lease is to be by deed, and the lessee is to execute a counterpart thereof, and every such lease is to contain a condition for re-entry on non-payment of the rent for a period of twenty-eight days, or for some less period to be specified in that behalf (o). Leases have been authorised for very long terms where proved Long to be beneficial and according to the custom of the locality, as termB> for "600 years (p), and 999 years (q). Subject and in addition to the conditions contained in section 4, Provision every such lease is to contain such covenants, conditions, and ^f-JLi stipulations as the Court shall deem expedient with reference to covenants, the special circumstances of the demise (r). In orders under the Act for vesting any powers of leasing, no Orders conditions are to be inserted requiring that th e leases the reby lln ^ r Act 1 p ' not to con- authorised should be submitted to or settled b y the Court or a tain con- iudge, or be made conformable with a model lease deposited in dltlons tflat . , *■ » leases be the judge s Champers, unless the parties applying for the orde r settled by desire to have any such condition inser ted, or it shall appear to 9 " rt ^ : the Court that there is some special reason therefor (s). And in (») See p. 267. (?) Be Carr, 9 W. R. 776. And (o) 40 & 41 Vict. e. 18, b. 4. see Savile v. Bruce, 29 Beav. 557. (p) Re Cross's Charity, 27 Beav. (r) 40 & 41 Vict. c. 18, s. 5, 592. (a) Id. a. 14. 262 and con ditions so inserted may be ordered to be struck out. /. THE STATUTORY JURISDICTION. Order to give direc tions as to contents o Whole O] any part of estate may be leased. Surrender and re newal. Prelimi- nary con- tracts. Copyholds, Mode in which leases ma; be autho- rised. all cases of orders (whether under the existing Act or under the corresponding enactment of the Acts thereby repealed) in which any such condition shall have been inserted, any party in- terested may apply to the Court to alter and amend such order by striking out such condition. The order so altered is to have the same validity as if it had originally been made in its altered state ; but it is not obligatory on the Court to act under this provision in any case in which from any evidence it shall appear to the Court that there is any special reason why in the case in question such a condition i* necessary or expedient (t). In cases where the Court authorises a lease the order is to direct that the lease shall contain such conditions as are re- quired by the Act, and such other covenants, conditions, and stipulations as the Court shall deem expedient with reference to the special circumstances, or may direct the same to contain such covenants, conditions, and stipulations as may be approved by the judge at Chambers, without directing the same to be settled by the judge (u). The power to authorise leases, conferred by the Act, extends to authorise leases either of the whole or any parts of the settled estates, and may be exercised from time to time (t>). Any leases, whether granted in pursuance of the Act or otherwise, may be surrendered either for the purpose of obtain- ing a renewal of the same or not, and the power to authorise leases extends to authorise new leases of the whole or any part of the hereditaments comprised in any surrendered lease (w). The power to authorise leases extends to authorise pre- liminary Contracts to grant any such leases, and any of the terms of such contracts may be varied in the leases (x). The powers to authorise and to grant leases include powers to authorise and powers to lords of settled manors to give licenses to their copyhold and customary tenants to grant leases to the same extent as leases may be granted of freeholds (y). The power to authorise leases may be exercised by the Court, either by approving of particular leases, or by ordering that powers of leasing, in conformity with the provisions of the Act, shall be vested in trustees (z). (t) 40 & 41 Vict. c. 18, s. 15. (a.) Id. s. 7. (u) Ord. 25 of Settled Estates Act \x) Id. s. 8. Orders, 1878. \y) Id. s. 9. («) 40 & 41 Vict. c. 18, s. 6. (s) Id. s. 10. 263 vidence. Direction as to lessor. THE SETTLED ESTATES ACT, 1877. When application is made to the Court either to approve of B|vi a particular lease, or to vest any powers of leasing in trustees, the applicant will be required to produce such evidence as the Court shall deem sufficient to enable it to ascertain the nature, value, and circumstances of the estate, and the terms and con- ditions on which leases thereof ought to be authorised (a). And the Court is to be satisfied by sufficient evidence that it is proper and consistent with a due regard for the interests of all parties entitled under the settlement that such powers should be granted ; and it must be stated in the affidavit why, and upon what ground, it is deemed to be so (6). When a particular lease or contract for a lease has been ap- proved by the Court, the Court is to direct what person or persons shall execute the same as lessor ; and the lease or con- tract executed by such person or persons is to take effect in all respects as if he or they was or were at the time of execution absolutely entitled to the whole estate or interest which is bound by the settlement, and had immediately afterwards f settled the same according to the settlement, and so as to / operate (if necessary) by way of revocation and appointment of/ the use or otherwise as the Court shall direct (c). I Where the Court shall deem it expedient that any general/ Powers ot powers of leasing any settled estates conformably to the AciJ ^™| should be vested in trustees, it may by order vest such power vested in either in the existing trustees of the settlement or in any other! trustees - persons, such power to take effect as if originally in the settle- ment, and in every such case the Court may impose conditions as to consents or otherwise on the exercise of such power, and may authorise the insertion of provisions for the appointment of new trustees for the purpose of exercising such powers of leasing (d). The Act is not to interfere with the exercise of any powers lUnrepealed to authorise or grant leases conferred by any Act not thereby t^^of expressly repealed (e). Wring. Any person entitled to the possession or to the receipt of the Beases by- rents and profits of any settled estates, for an estate for any life j T^\l or for a term of years determinable with any life or lives, or for any greater estate, either in his own right or in right of his^ (a) 40 k 41 Vict. c. 18, s. 11. (b) Ord. 15 of Settled Estates Act Orders. 1878. (c) 40 & 41 Vict. c. 18, s. 12. (d) Id. s. 13. (e) Id. s. 59. 264 THE STATUTORY JURISDICTION. Evidence of execu- tion of counter- part. Applica- tion of Act as to wife, unless the settlement shall contain an express declaration that it shall not be lawful for such person to make such demise ; and also any person entitled to the possession or to the receipt of the rents and profits of any unsettled estates as tenant.by the curtesy, or in dower, or in right of a wife who is seised in fee, without any application to the Court, may demise the same or any part thereof except the principal mansion house and the demesnes thereof and other lands usually oc- cupied therewith, from time to time, not exceeding twenty-one years, so far as relates to estates in England, and thirty-five years so far as relates to estates in Ireland, to take effect in possession at or within one year next after the making thereof. Every such demise is to be made by deed, and the best rent that can reasonably be obtained is to be thereby reserved with- out any fine or other benefit in the nature of a fine, which rent is to be incident to the immediate reversion. And such demise is not to be made without impeachment of waste, and must contain a covenant for payment of the rent and such other usual and proper covenants as the lessor shall think fit, and also a condition of re-entry on non-payment of the rent for twenty-eight days after it becomes due, or for some less period, to be specified in that behalf ; and a counterpart of every lease is to be executed by the lessee (/ ). Every demise authorised by section 46 of the Act is to be valid against the person granting the same, and all other per- sons entitled to estates subsequent to the estate of such person under or by virtue of the same settlement, if the estates be settled, and in case of unsettled estates against the wife of any husband granting such demise of estates to which he is entitled in right of such wife, and against all persons claiming through or under the wife or husband (as the case may be) of the person granting the same (g). The execution of any lease by the lessor or lessors is sufficient evidence that a counterpart of such lease has been duly exe- cuted by the lessee as required by the Act (h). The provisions of the Act respecting demises to be made without application to the Court extend only to settlements made after 1st Nov., 1856 (t). (/) 40 & 41 Vict. c. 18, s. 46. {h) Id. s. 48. {g) Id. s. 47. (t) Id. s. 57. THE SETTLED ESTATES ACT, 1877. 2(i" (4.) Sales. The Court may, if it shall deem it proper and consistent with Court may a due regard for the interests of all parties entitled under the autuon9e settlement, and subject to the provisions of the Act, from time to time authorise a sale of the whole or any part of any settled estates or of any timber (not being ornamental timber) growing on any settled estates, and every such sale is to be conducted in the same manner as a sale of lands under a decree (J). The Court will not empower the trustees to make sales generally, but will only authorise the particular sale mentioned in the petition, and such others as it is satisfied will be beneficial (h). The Court may direct a sale although there is a power of sale in the settlement (I) ; and may accelerate the operation of a postponed power (m). The sale will not usually be allowed to take place otherwise than with the approbation of the judge in the usual manner (n) ; but a sale out of Court has been allowed, subject to a reserved price to be fixed at Chambers, and the purchase money to be paid into Court (o). And a conveyance to the petitioner was directed, if upon reference to Chambers it should be certified that it was fit and proper and for the benefit of all parties that he should be the purchaser (p). When land is sold for building, the Court may, if it shall see Fee-farm fit, allow the whole or any part of the consideration to be a rent ren " issuing out of such land (q). On a sale of land, any earth, coal, stone or mineral may be Minerals, excepted, and any rights or privileges reserved, and the pur- ? c- ' ™ ay chaser may be required to enter into any covenants or submit cepted. to any restrictions which the Court may deem advisable (r). (5.) Dedication and Laying out of Roads, &c. The Court may, if it shall deem it proper and consistent with Powers of a due regard for the interests of all parties entitled under the Court as t0, 0') 40 & 41 Vict. c. 18, s. 16. (m) Re Morgan, 9 Eq. 587. As to sales under direction of the (n) Re Smith, W. N. (1878) 196 ; Court, see Part V. Chapter III. Re Pease, M. R. 22nd June, 1878. Section 12. (o) Re Adams, 9 Ch. D. 116 ; Re (k) Re Peacock, 15 W. R. 100. Andrews, sup. See, however, Re Andrews, 26 W. R. (p) Re Hilton's Trusts, 14 L. T. 811. 129. (1) Re Thompson, Joh. 418 ; Grey (q) 40 & 41 Vict. u. 18, s. 18. v. Jenkins, 26 Beav. 351. (r) Id. s. 19. 266 THE STATUTORY JURISDICTION. settlement, and subject to the provisions of the Act, direct that any part of any settled estates be laid out for streets, roads, paths, squares, gardens, or other open spaces, sewers, drains, or watercourses, either to be dedicated to the public or not ; and the Court may direct that the parts so laid out shall renfain vested in the trustees of the settlement, or be conveyed to or vested in any other trustees upon such trusts for securing the continued appropriation thereof to such purposes, and with such provisions for the appointment of new trustees when re- quired, as by the Court shall be deemed advisable (s). The Court may direct that any such roads and other works, including all necessary or proper fences, pavings, connections, and other works incidental thereto, be made and executed, and that all or any part of the expenses thereof be raised by sale or mortgage of or charge upon any part of the settled estates, or out of the rents and profits thereof, or out of any monies or investments representing monies liable to be laid out in the purchase of estates to be settled to the same uses, or out of the income of such monies or investments, or out of accumula- tions of rents, profits, or income. And the Court may direct the repair or maintenance of such streets, roads, and other works out of any such rents, profits, income or accumulations during such period or periods as the Court shall deem ad- visable (t). The Court usually, but not always, requires plans of the proposed dedications to be submitted (u). Court is to direct who shall execute. (6.) Conveyance. On every sale or dedication under the Act, the Court may direct who shall execute the conveyance, and the deed so exe- cuted will take effect as if the settlement had contained a power enabling such person or persons to effect such sale or dedication (v). (*) 40 & 41 Vict. c. 18, s. 20. t«) Id. ». 21. (u) Re Ewgream, 15 W. R. 54. (*) 40 & 41 Vict. c. 18, s. 22. and applied to certain purposes, as Court shall direct. THE SETTLED ESTATES ACT, 1877. 267 (7.) Application of Proceeds of Sale or of Moneys to be set asi under Leases of Minerals. All money to be received on any sale under the Act, or to be [Money to set aside out of the rent or payments reserved on any lease of jintTcour earth, coal, stone, or minerals (u>), may, if the Court shall think fitj be paid to any trustees of whom it shall approve, or other- wise the same is to be paid into Court ex parte the applicant in the matter of the Act ; and such money is to be applied, as the Court shall from time to time direct, to some one or more of the following purposes, viz. : — So far as relates to estates in England, the purchase or redemption of the land tax, and so far as relates to estates in Ireland, the purchase or redemption of rentcharge in lieu of tithes, Crown rent, or quit rent ; The discharge or redemption of any incumbrance affect- ing the hereditaments in respect of which such money was paid, or affecting any other hereditaments subject to the same uses or trusts ; or The purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid ; or The payment to any person becoming absolutely en- titled (ww). Money to be invested in land will be ordered to be employed in the erection of new buildings on the settled land, but not in repairs or permanent improvements which do not place new buildings on the land (x). Money arising from timber cut by order of the Court was ordered to be expended in farm buildings and other permanent improvements (y). J Payment out of Court to a tenant in tail will not be ordered Payment unless a disentailing deed has been executed (z). And an order tenant in for payment out must be supported by an affidavit showing tail, that there are no incumbrances (a). (w) See Section 4 (3), p. 261. L. J. (Ch.) 869 ; Be Venow, 2 Ch. {ww) 40 & 41 Vict. c. 18, s. 34. D. 522. (x) Drake v. Treftms, 10 Ch. {y) Be Newman's Settled Estates, 364. See, however, Be Clitheroe's swp. Settled Estates, 17 W. R. 345 ; Be (z) Be Broadwood, 1 Ch. D. 438. Newman's Settled Estates, 9 Ch. (a) ThornAiU v. MiUbarik, 12 W. 681 ; Earl Cowley v. WelUsley, 46 E. 523. 268. THE STATUTORY JURISDICTION. Court may direct trustees to apply money without applica- tion. Interim in- vestment. Court may direct ap- plication in respect of leases or reversions. The application of the money as mentioned in section 34 may, if the Court shall so direct, be made by the trustees (if any) without application to the Court, or otherwise, upon an order of the Court upon the petition of the person who would be entitled to the possession or receipt of the rents and profits if the money had been invested in the purchase of land (6). Quaere whether upon a petition under section 35 it is necessary to serve the parties interested (c). Until the money can be applied as before mentioned, the same is to be invested as the Court shall direct in some or one of the investments in which cash under the control of the Court is for the time being authorised to be invested, and the interest and dividends of such investments are to be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land (d). Where any purchase money paid into Court under the pro- visions of the Act shall have been paid in respect of any lease for a life or lives or years, or for a life or lives and years, or any estate in lands less than the whole fee simple thereof, or of any reversion dependent on any such lease or estate, the Court may, on the petition of any party interested in such money, order that the same shall be laid out, invested, accumulated, and paid in such manner as the Court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or rever- sion in respect of which such money shall have been paid, or as near thereto as may be (e). Powers of Court as to. (8.) Proceedings for Protection of Settled Estate. The Court may, if it shall deem it proper and consistent with a due regard for the interests of all parties who are or may be entitled under the settlement, and subject to the provi- sions of the Act, sanction any action, defence, petition to Par- liament, parliamentary opposition, or other proceedings appear- ing to the Court necessary for the protection of any settled (6) 40 & 41 Vict. c. 18, s. 35. (c) See Re Duke of Cleveland, 1 Dr. & Sm. 481 ; Sexton Barns Settled Estates, 10 W. R. 416 ; Me Bolton Estates Act, 19 W. R. 429. (d) 40 & 41 Vict. c. 18, «. 36. (e) Id. s. 37. THE SETTLED ESTATES ACT, 1877. 269 estate, and may order that all or any part of the costs be raised and paid by a sale or mortgage of or charge upon all or any part of the settled estate, or be raised and paid out of the rents and profits of the settled estate, or out of any moneys or investments representing moneys liable to be laid out in the purchase of hereditaments to be settled in the same manner as the settled estates, or out of the income of such moneys or investments, or out of any accumulations of rents, profits, or income (/). (9.) Procedure under the Act. The first step in an application under the Act is to prepare Tie peti- and present the petition, which must be entitled in the matter tio \ of the estates settled by the settlor or settlors, naming one of them, and referring to the instrument by which the settlement shall have been created, and mentioning the parish, or place, or county, in which the lands, messuages, or tenements proposed to be dealt with are situate, and in the matter of the Settled Estates Act, 1877, and must be marked with the words, " In the High Court of Justice, Chancery Division," and the title of the judge before whom the petition is to be heard (g). Any person entitled to the possession or to the receipt of the The appli- rents and profits of any settled estates for a term of years oants - determinable on his death, or for an estate for life or any greater estate, and also any person entitled to the possession or to the receipt of the rents and profits of any settled estates as the assignee of any person who but for such assignment would be entitled to such estates for a term of years determinable with any life, or for an estate for any life or any greater estate, may apply to the Court by petition to exercise the powers con- ferred by the Act (h). For the purposes of the Act, a person is deemed to be entitled to possession or receipt of the rents and profits, although his estate may be charged or incumbered either by himself or by the settlor or otherwise ; but the estates or interests of the parties entitled to any such charge or incum- brance are not to be affected by the acts of the person entitled to possession or receipt of the rents and profits unless they (/) 40 & 41 Vict. c. 18, a. 17. Settled Estates Act Orders, 1878. (ff) Ord. 2, and App. Form 1 of (h) 40 & 41 Vict. c. 18, s. 23. 270 THE STATUTORY JURISDICTION. Description of property. Address for service. Parties required to consent. Infant tenant in tail. Notice to persons who do not concur or consent. concur therein (i). An equitable tenant for life may present a petition (j). The petition must contain, either in the body of it or in a schedule thereto, or on a plan annexed, a detailed description of the property dealt with (k) ; and the name, address, and description of the petitioner, in addition to an address for service within three miles from the site of Temple Bar (I). Subject as hereinafter mentioned, every application to the Court must be made with the concurrence or consent of the following parties, viz. : — Where there is a tenant in tail under the settlement in existence and of full age, then the parties to concur or consent are such tenant in tail, or if there is more than one such tenant in tail, then the first of such tenants in tail, and all persons in existence having any beneficial estate or interest under or by virtue of the settlement prior to the estate of such tenant in tail, and all trustees having any estate or interest on behalf of any unborn child prior to the estate of such tenant in tail. And in every other case the parties to concur or consent are all the persons in existence having any beneficial estate or interest under or by virtue of the settlement, and also all trustees having any estate or interest on behalf of any unborn child (m). Where an infant is tenant in tail under the settlement, the Court may, if it shall think fit, dispense with the concurrence or consent of the person if only one, or all or any of such persons, if more than one, entitled, whether beneficially or otherwise, to any estate or interest subsequent to the estate tail of such infant (n). Where, on an application under the Act, the concurrence or consent of any such person as before mentioned shall not have been obtained, notice must be given to such person in such manner as the Court to which the application shall be made shall direct (o) requiring him to notify, within a time to be specified in such notice, whether he assents to or dissents from such application, or submits his rights or interests, so far as (j) 40 & 41 Vict. c. 18, s. 54. (j) Taylor v. Taylor, 3 Ch. D. 145. (A) Ord. 2 of Settled Estates Act Orders, 1878. (I) Ord. 31, id. (m) 40 & 41 Vict. c. 18, s. 24. (n) Id. s. 25. (o) See Settled Estates Act Orders, 1878, App. Form 3. THE SETTLED ESTATES ACT, 1877. 271 they may be affected by such application, to be dealt with by the Court, and every such notice must specify to whom and in what manner such notification is to be delivered or left. In case no notification shall be delivered or left in accordance with the notice, and within the time thereby limited, the person to or for whom such notice shall have been given or left will be deemed to have submitted his rights and interests to be dealt with by the Court ( p). By Ord. IV. of the Settled Estates Act Orders, 1878, the notice may be given before th e hearin g (and afterwards if the judge shall not otherwise direct), without any other direction of the Court, to any person within the jurisdiction, except in the case of a person of unsound m ind not so found by inquisition, by delivering to such person a notice in the Form No. 3 in the Appendix to the Orders, varied as circumstances require ; and the time to be specified in such notice for the notification in answer thereto is, in the case of a guardian of an infant, to be such time as directed in the order appointing the guardian, and in the case of a married woman or committee of a lunatic not less than twenty-eight clear days after service, and in other cases not less than fourteen days after service. In the case of per- sons of unsound mind not so found, or without the jurisdiction, or if some other mode of service is desired, the petitioner must make an ex parte application at Chambers for the direction of the judge. Where, on an application under the Act, the concurrence or Court may consent of any such person as before mentioned shall not have ^^Mtice been obtained, and in case such person cannot be found, or in in certain case it shall be uncertain whether he be living or dead, or in case it shall appear to the Court that such notice as aforesaid cannot be given to such person without expense dispropor- tionate to the value of the subject matter of the application, then, and in any such case, the Court, if it shall think fit, either on the ground of the rights or interests of sueh person being small or remote, or being similar to those of any other person or persons, or on any other ground, may by order dispense with notice to such person, who will thereupon be deemed to have submitted his rights and interests to be dealt with by the Court (q). (p) iO & 41 Vict. c. 18, s. 26. (}) Id. s. 27. See Re Spurway's Settled Eitates,lO Ch. D. 230. 272 THE STATUTORY JURISDICTION. Court may dispense with con- sent hav- to the number and inte- rests of parties. Notice of applica- tion to be served on trustees, &e. An order may be made upon any application, notwithstand- ing that the concurrence or consent of any such person as before mentioned shall not have been obtained or shall have been refused ; but the Court, in considering the application is to have regard to the number of persons who concur in or consent to the application, and who dissent therefrom, or who submit or are to be deemed to submit their rights or interests to be dealt with by the Court, and to the estates or interests which such persons respectively have or claim to have in the estate as to which such application is made ; and every order of the Court made upon such application will have the same effect as if all such persons had been consenting parties thereto (r). Where the interests of the opposers were nearly equal to those of the supporters of the application, the Court refused to dis- pense with the consent of the former (s). Where a married woman in New Zealand was interested, the Court directed a notice to be sent to her by letter, requiring her to assent or dissent within a limited time (t). The Court has dispensed with service on an infant born after petition presented (u) ; and on infants who might become interested in place of their parents (v). The Court may, if it shall think fit, give effect to any petition, subject to and so as not to affect the rights, estate, or interest of any person whose concurrence or consent has been refused, or who has not submitted or is not deemed to have submitted his rights or interests to be dealt with by the Court, or whose rights, estate or interest ought in the opinion of the Court to be excepted (w). Notice of any application to the Court under the Act is to be served on all trustees who are seised or possessed of any estate in trust for any person whose consent or concurrence to or in the application is required by the Act, and on any other parties who, in the opinion of the Court, ought to be so served, unless the Court shall think fit to dispense with such notice (x). On every petition where there are any such trustees, evidence (r) 40&41 Vict. u. 18, s. 28. («) Taylm v. Taylor, 1 Ch. D. 426 ; S. C. on appeal, 3 Id. 145. (0 Re Ri/lar, 24 W. R. 949. (w) /?" Lewis's Estate, 24 \T, E. 103. (v) Re Chamberlain, 23 W. 852. (w) 40 & 41 Yict. c. 18, s. 29. [x) Id. s. 30. THE SETTLED ESTATES ACT, 1877. 2*73 is to be produced that such notice has been served on them (y). The mode of obtaining the concurrence or consent of the Concur- necessary parties is :— (1.) By joining them as petitioners. renoe °? (2.) By their appearing on the petition. (3.) By serving them how ob- with notice under section 26. It will now be unnecessary in any tamed - case to serve the petition on anybody, because, where it is n e e dnot necessary to serve any person, he is to be served with notice (?). be served. And by Ord. 22 of the Settled Estates Act Orders, 1878, any inspection person served with a notice pursuant to section 26, and any of petition, trustee or other person served with notice pursuant to section 30, may, upon reasonable .notice to the petitioner's solicitor, inspect and peruse the petition, without payment of any fee, and is entitled to be furnished with a copy thereof upon such application, terms, and conditions as are provided by rules 8, 9, 12, and 13 of Order V. of the Additional Bules of Court under the Supreme Court of Judicature Act, 1875, dated 12th Aug. 1875 (a). All powers given by the Act and all applications to the Court Provision under the Act, and consents to and notifications respecting such ?". . applications may be executed, made, or given by, and all lunatics, notices under the Act may be given to guardians on behalf of infants, and by or to committees on behalf of lunatics, and by or to trustees or assignees of the property of bankrupts, debtors in liquidation, or insolvents. But in the cases of infant or lunatic tenants in tail, no application to the Court or consent to or notification respecting any application, may be made or given by any guardian or committee without the special direction of the Court (6). Where it is desired that any guardian of an infant shall Appoint- make or consent to any application to the Court under the Act, ment ° f J rr ' guardian or make any notification respecting any application to the in ease of Court, or that notice may be given to any such guardian on lnfanti behalf of an infant, the Court may appoint a guardian to such infant for the purposes of the Act, and an application for such appointment may, after the petition is presented, be made at Chambers by the petitioner by summons. And if an infant is the petitioner the petition may be presented by the infant by (jr) Ord. 16 of Settled Estates Act (z) Seton, 4th ed. 1483. Orders, 1878. And see App. thereto, (a) See pp. 126, 127. Form No. 12. (5) 40 & 41 Yict. c. 18, „. 49. T 274 THE STATUTORY JURISDICTION. Provision as to lunatic or infant tenant in tail. his next friend, and after the petition has been presented and answered, and a guardian appointed, the word " guardian " is to be substituted in the petition for the words " next friend," and the name of the guardian (if the next friend and guardian are not the same person) for the name of the next friend (c). It is necessary that a special guardian should be appointed ; the infant's father, or testamentary guardian not being sufficient (d). Upon an application to appoint a guardian to an infant under the Act, the su mm ons is to be served upon th e parent, testa- , m entary guardian, or guardian appointed by the Court of Chancery, or Chancery Division, of t he infant, if there be any such parent or guardian, unless the Court or judge shall dis- pense therewith (e). Upon an application to appoint a guardian of an infant the following facts must be proved :■ — (1.) The age of the infant. (2.) Whether he has any parent, testamentary guardian, or guardian appointed by the Court of Chancery, or Chancery Division, and, if so, whether such parent or guardian has any interest in the application, and, if he has, the nature of such interest, and whether or not adverse to the interest of the infant. (3.) Where and under whose care the infant is residing, and at whose expense he is maintained. (4.) In what way the proposed guardian is connected with the infant, and why pro- posed and how qualified to be appointed. (5.) That the pro- posed guardian has no interest in the application, or, if he has, the nature of his interest, and that it is not adverse to the interest of the infant. (6.) The consent of the guardian to act (/). In the case of a lunatic or infant tenant in tail by his" committee or guardian applying, or consenting to, or giving a notification in respect of an application to the Court, an application may be made by the petition er at Chambers, after the petition is presented, for the direction of the judge that such committee or guardian may apply, or consent, or give such notification; and in the case of an infant such application may be combined with an application to appoint a guardian ($r). In cases where the committees or guardians of lunatic or infant tenants in tail are served with notice of the (c) Ord. 5 of Settled Estates Act Orders, 1878. (d) Re James, 5 Eq. 334 ; Re Caddick, 7 W. R. 334. (c) Ord. 8 of Settled Estates Act Orders, 1878. (/) Ord. 10, id. (g) Ord. 6, id. THE SETTLED ESTATES ACT, 1877. 275 application under section 26, an application may be made at Chambers by the petitioner, before the expiration of the time specified in such notice, that such committees or guardians may notify that they either assent to or dissent from such applica- tions, or submit their rights or interests, so far as they may be affected by such application, to be dealt with by the Court (h). Upon any application that a committee or guardian of a lunatic or infant tenant in tail may be directed to make or consent to any application on behalf of such lunatic or infant, or to notify that the lunatic or infant assents to or dissents from such application, or submits his rights or interests so far as they are affected by such application to be dealt with by the Court, the summons is to be served on the committee of such lunatic, or the guardian appointed or proposed to be appointed of such infants for such purpose (i). Upon an application that a com- mittee of a lunatic tenant in tail may be directed to make or consent to any application, or to give any notification respect- ing any application, the authority of the judge or judges, e ntrusted with the care of lunatics, to such committee to act, must be produced, and if it shall appear thereby that such judges are of opinion that it is proper and consistent with a due regard for the interests of the lunatic that the committee shall make or consent to the application, or give any specific notifica- tion respecting.the application, such authority will, unless the Court or judge shall for any special reason require further evidence, be sufficient evidence upon which the committee may be__ djrected t6 act in conform ity with such au thority (./) . Although the Act nowhere provides that either the guardian of an infant or the committee of a lunatic shall apply for the direction of the judge to make an application, unless such infant £* Ci or lunatic is tenant in tail, it would seem obvious that in any case of a lunatic, the committee would not be justified in acting without the authority of a judge in lunacy (&). Upon an application that the guardian of an infant tenant in tail may be directed to make, or consent to, or to give any notification in respect of, any application, evidence must be produced to satisfy the judge that it is, and the guardian is to make an affidavit that he believes that it is, proper and consistent with a due (h) Ord. 7 of Settled Estates Act (j) Ord. 11, id. Orders, 1878. (£) Seton, 4th ed. 1480. (i) Ord. 9, id. T 2 "7? women. 276 THE STATUTORY JURISDICTION. regard for the interest of such infant that such direction shall be given (I). Married Where a married woman applies to the Court, or consents to an application under the Act, she is to be first examined apart from her husband touching her knowledge of the nature and, effect of the application, and it is to be ascertained that she freely desires to make or consent to such application, and such examination is to be made whether the hereditaments are settled to her separate use or not ; and no clause or provision in any sett lement restraining anticipation is to prevent the Court from exercising, if it shal l think fit, any of the powers of the Act, and no such exercise is to occasion forfeiture (m). Su ch examination, if the married woman is resident within the juris- diction of the Court, is to be made either by the Court or by some solicitor duly appointed by the Court, who is to certify that he has examined her apart from her husband, and is satisfied that she is aware of the nature and effect of the in- tended application, and that she freely desires t6 make or con- sent to the same. When she is resident out of the jurisdiction, any person, whether a solicitor or not, may be so appointed, and must certify as aforesaid. The appointment of a person not a solicitor is to afford conclusive evidence that the married woman was at the time of such examination resident out of the juris- diction (»). The examination may be taken at any time after the petition is presented and answered (o). When it is desired that a married woman resident within the jurisdiction of the Court shall be examined otherwise than by the Court, a solicitor who is a perpetual commissioner to take acknowledgments of deeds by married women may be appointed for that purpose by the judge at Chambers ( p ), without summons or order, upon the request of the petitioner, and a certificate of the solicitor for the petitioner (q), that the person to be appointed is not a solicitor for the petitioner, or for any party whose concurrence or con- sent to the application is required, but where an examination by such solicitor will cause unreasonable expense, delay, or in- convenience, or where the married woman is resident out of the (Z) Ord. 12 of Settled Estates Act Orders, 1878. Orders, 1878. (p) See Form No. 7, App. to (m) 40 & 41 Vict. c. 18, s. 50. Settled Estates Act Orders, 1878. (n) Id. s. 51. ( 9 ) See Form No. 7, id. (o) Ord. 13 of Settled Estates Act THE SETTLED ESTATES ACT, 1877. 277 jurisdiction of the Court, an application by summons may be made ex parte by the petitioner at Chambers to appoint a solicitor if such woman is resident within the jurisdiction of the Court, and, if not so resident, a person, whether a solicitor or not, to take such examination (r). The examination of a married woman under the repealed Acts was in several cases dispensed with (s). Neither the solicitor acting in the matter (t), nor the solicitor of the husband may take the examination (u). As under the Act and Orders the only mode in which a married woman's concurrence or consent can be taken is by her examina- tion, she should always be examined, except in cases where the Court thinks fit to dispense with her concurrence or consent altogether, in which case the order should be so expressed. If, however, she submits, or is to be deemed to have submitted, her rights, her examination will not be required (v). Subject to such examination, married women may make or consent to any applications, whether they are of full age or infants (w). If she is an infant her consent is taken by examination as if she were of full age (x). The fee allowed to solicitors for attendances at the judge's Chambers to procure the appointment of an examiner is 1 3s. Ad. on the lower and £1 Is. on the higher scale (xx). Notice of any application under the Act is to be inserted in Provisions such newspapers (if any) as the Court shall direct, and any J? Notice" person or body corporate, whether interested in the estate or of applioa- not, may apply by motion for leave to be heard in opposition to ^^^. or in support of any such application, and the Court may per- plications mit such person or corporation to appear and be heard on such t ° r b g ave terms as it shall think fit (y). If upon the hearing of the heard, petition the Court is of opinion that notice ought to be served on any person not served, or that notice ought to be inserted in any newspaper, the Court is to give directions accordingly, and ' (»•) Ord. 14 of Settled Estates Act (t) Re Brearly, 5 W. R. 613. Orders, 1878. For forms, see Forms («) Re Noyes, 6 W. R. 7. 7—11 in App. to Settled Estates Act (v) Seton, 4th ed. 1484. Orders, 1878. (ui) 40 & 41 Vict. c. 18, s. 52. (s) See Re Lord de Tdbley, 11 W. (x) Re Broadwood' s Settled Estates, R. 936 ; Re Tibbett, 17 W. R. 394 ; 7 Ch. 323. Re Cundee, W. N. (1877) 184 ; Re (xx) Ord. 29 of Settled Estates HaMday, 12 Eq. 199 ; Re Thome, Act Orders, 1878. 20 W. R. 587 ; Re Marshall, 15 Eq. (y) 40 & 41 Vict. c. 18, s. 31 . 66 ; Re Thorp, W. N. (1876) 251. 278 THE STATUTORY JURISDICTION. Inspection of petition. Appoint- ment for bearing. the petition is to stand over generally or to such time as the Court shall direct (z). When the Court at the hearing has directed notice of any application to be inserted in any news- papers, any person may, within the time specified in the notice, apply to the Court by motion, either ex parte or upon notice to the petitioner, for leave to be heard in opposition to or in support of the application, but if the motion be made ex parte, and the Court shall think fit to give such leave, it will be subject to such order as the Court shall think fit to' make as to costs (a). Any person having obtained leave under Ord. 19 may, upon reasonable notice, inspect and peruse the petition at the office of the solicitor for the petitioner, upon payment of a fee of 1 3s. id. on each inspection, and is entitled (either with- out or after such inspection) to be furnished with a copy of such petition upon such application, terms, and conditions as are provided by Rules 8, 9, 12, and 13 of Ord. V. of the Ad- ditional Rules of Court, under the Judicature Act, 1875, dated 12th Aug., 1875 (6). Any order made on an ex parte motion giving leave to such person to be heard on any application is to be served on the solicitor for the petitioner (c). The practice is only to direct advertisements under special circumstances (d). Upon the presentation of the petition, a day is to be ap- pointed for hearing not less (unless the judge gives special leave) than eight clear days after such presentation, exclusive of Sundays and other days on which the offices are closed (e) ; but when the petition has been put into the paper for hearing, and by reason of the parties not bemg ready, or for any other cause, the judge allows it to stand over generally, it may be put into the paper for a subsequent day, without any application to the Court or judge, on the petitioner Or his solicitor applying for that purpose to the Secretary of the Lord Chancellor or Master of the Rolls (as the case may be), and notice of the appoint- ment of such subsequent day must be given by the petitioner or his solicitor two clear days before the day fixed, to the other parties entitled to appear on such petition (/). (z) Ord. 18 of Settled Estates Act Orders, 1878. (a) Ord. 19, id. (b) Ord. 20, id. See pp. 126, 127. (c) Ord. 21, id. {d) See Re Chilcott, W. N. (1877) 259 ; Re Lord Kilmorey, 26 W. K. 54. (c) Ord. 2 of Settled Estates Act Orders, 1878. (/) Ord. 3, id. THE SETTLED ESTATES ACT, 1877. 279 When the petition comes on to be heard, the Court must be satisfied that all necessary persons are petitioners, or that they consent or have been served with notice ; and it must be shown whether those who have been served with notice have or have not made any notification in answer to such notice, and if any, what is the purport thereof; and if any of the preliminary steps have been omitted with a view to the Court dis- pensing therewith, the attention of the Court must be drawn thereto (g). The Court is to direct that some sufficient notice of any Indorse- exercise of any of the powers conferred on it by the Act shall be me ^ t of f placed on the settlement or otherwise recorded in any way it order under may think proper, in all cases where it shall appear to the Court to tlie Actl be practicable and expedient for preventing fraud or mistake (/i). In all cases in which land in a register county or district is affected by the exercise of any powers conferred on the Court by the Act, and the Court shall direct notice to be recorded, such notice may be given by directing a memorial of the order to be registered. And in all cases in which the Court shall not think it practicable or expedient that notice should be re- corded, the order is to state that no record of the order need be made (i). The existing practice of directing notice of the order to be indorsed on the probate of a will or on a settlement will be continued, except where the Court, under the wider discre- tion given it by the Act and Orders, expressly dispenses there- with (/). The Court may order the costs of parties to applications under Costs. the Act to be a charge on the hereditaments the subject of the application or other hereditaments in the same settlement ; and may direct that such costs be raised by sale or mortgage of a sufficient part of such hereditaments, or out of the rents or profits thereof, such costs to be taxed as the Court shall direct (&). In all cases where the Act and Orders require any proceeding Meaning of to be taken before making any application "the making of the " m ^ km S application' means bringing the petition on for hearing, and tion." not the presenting the petition (I). (g) Seton, 4th ed. 1481. (J) Seton, 4th ed. 1495. (A) 40 & 41 Vict. e. 18, s. 33. (k) 40 & 41 Vict. c. 18, s. 41. (i) Ord. 23 of Settled Estates Act (I) Seton, 4th ed. 1481. Orders, 1878. 280 THE STATUTORY JURISDICTION. Power to judge to with orders. Contents of order. Forms. Existing procedure. Fees. The judge in person sitting in Court or in Chambers, in case of any petition, may by special order dispense with all or any of the Settled Estates Act Orders, 1878, so far as they are ap- plicable to such petition in any case in which he shall think fit, and upon such terms and conditions (if any)' as he may deem proper (m). Every order is to state, in addition to the names of the peti- tioners, the names of the persons other than the petitioners who concur or consent or to whom notice of the application has been given, or who (under Ord. 19 of the Settled Estates Act Orders, 1878,) may have obtained leave to be heard in opposition to or in support of the application, and whether any notification was received from the persons to whom notice has been given, and if any has been received, the purport thereof, and also the names of the persons, if any, notice to whom has been dispensed with, and whether the order is made subject to any and what rights, estate or interest of any person whose concurrence or consent has been refused, or who shall not or shall not be deemed to have submitted his rights or interests to be dealt with by the Court, or whose rights or interests ought, in the opinion of the Court, to be excepted (n). The forms set forth in the appendix to the Orders are to be adhered to, subject only to such variations as may be necessary to meet the circumstances- of the case or direction of the Court (o). In all cases not provided for by the Act, or Orders, the exist- ing forms and mode of procedure and general practice of the Court on similar proceedings are to apply to proceedings under the Act (p). The fees to be taken by the officers of the Court in respect to proceedings under the Act are such as are provided by the Orders under the Judicature Act, 1875, dated 28th Oct., 1875, and are applicable in such proceedings; and every request under Order 14 of the Settled Estates Act Orders, 1878, is to bear a stamp of 2s. if the lower scale of fees is applicable, and 3s. in other eases (g). (m) Ord. 32 of Settled Estates Act Orders, 1878. («) Onl. 24, id. (o) Ord. 27, id. (p) Ord. 28, id. (?) Ord. 30, id. CHAPTER II. STATUTES RELATING TO CHARITIES. (1.) Order or Certificate of Charity Commissioners ; and Regulations concerning Applications therefor (a). Before any suit, petition, or other proceeding ( not being an When application in which any person claims any property or seeks cert ;fi cate any relie f adversely to any charity, and not being an application necessary, in any suit or matter actually pending at the time the applica- tion is made), for obtaining any renet, order, or direction con- cerning or relating to any charity, or the estate, funds, property or income thereof, shall be commenced, presented, or taken by any person whomsoever (other than the Attorney- General), he must obtain from the Board of Charit y Com- missioners an order or certificate, s inrnp.d by their secretary, authorising or directing su ch proceeding to be tak en ; and no proceeding for obtaining any such relief, order, or direction as aforesaid will be entertained or proceeded with by the [Chancery Division], or by any Court or judge, except upon and in con- formity with an order or certificate of the said Board (6). The above enactment extends to an application made to the Cases Court under a special Act of Parliament (c). But the sanction requ i rei j of the Commissioners is not required where a charity fund has been paid into Court under the Trustee Eelief Act (d), or the Lands Clauses Act (e) ; nor to deal with an estate, for the purposes of a college, where a part of the estate belongs to a (a) For form of application, see (d) Re St. Giles and St. George, Daniell's Forms, 3rd ed. 1152. Bhomsbwry, 25 Beav. 313 ; Re (b) 16 & 17 Vict. c. 137, ss. 17, Poplar, . 8. v 2 292 THE STATUTORY JURIS DICTION. one days after written notice, under the hand of such appellant, of his or her intention to present such petition, shall have been delivered to the Commissioners at their office (a). A petition is not to be presented to the [Chancery Division] under section 8 of the Charitable Trusts Act, 1860, before the expiration of twenty-one days after written notice under the hand of the applicant of his intention to present such petition has been served on the Attorney-General, by delivering the same to the solicitor who acts for him in ex officio proceedings relating to charities (6). The Attorney-General, or any person authorised by him or by the Commissioners, may appear as the respondent upon any such appeal ; and the Court may make any order respecting the costs, charges, and expenses of the Attorney-General or other respondent (c). Contempt. If any person refuses or wilfully neglects to comply with any lawful requisition or order of the Commissioners, or destroys or withholds any document required to be produced or transmitted by him, or to answer any lawful questions or inquiries, or to attend in obedience to any lawful precept of, or give evidence before any inspector, or if any person wilfully alters, destroys, withholds, or refuses to produce any document which may be lawfully required to be produced before any inspector, evejy person so offending is to be deemed and taken to be guilty of a contempt of the Court, and is liable to be attached and com- mitted on summary application by the Commissioners to the Court, or any judge thereof; and may be ordered to pay the costs of and attending such contempt ; and the Court may, at any time, discharge such person, upon such terms as it may deem just (d). Disputes Any question or dispute among the members of any charity, between whether within or excepted from the operation of the Act in members A > of charity, relation to any office, or the fitness or disqualification of any trustee or officer, or his election or removal, or generally in relation to the management of the charity, may be referred to the Commissioners by two-thirds of the members present at a (a) 23 & 24 Vict. c. 136, s. 8; 18 & 19 Vict. c. 124, s. 9 ; 23 & 24 32 &c - order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said Court may appoint (v). When any stock shall be standing in the sole name of a Provision deceased person, and his personal representative shall refuse or w . £ e (o) 13 & 14 Vict. c. 60, s. 24. (s) 15 & 16 Vict. c. 55, a. 4. {p) ReHartnaU, 5 De G. & S. 111. \t) Re Bolbrook, 8 W. E. 3. (5) Mackenzie v. Mackenzie, 5 De < («) Shyrmer v. Pelichet, 9 W. E. G. & S. 338, 341. 191. (r) Re Baxter, 2 S. & G. App. 5. (») 13 & 14 Vict. c. 60, s. 25. 316 THE STATUTORY JURISDICTION. stands in neglect to transfer such stock or receive the dividends or income debased * thereof for *e space of twenty-eight days next after an order of person, the [Chancery Division] for that purpose shall have been served personal u P on n ' m ' tne [Chancery Division] may make an order vesting representa- the right to transfer such stock, or to receive the dividends or T't a f SeB income thereof, in any person or persons whom the Court may &c. appoint (w). Effect of Where an order shall have been made under any of the pro- order T^ st " visions of the Acts vesting the right to any stock in any person stock. " o r persons appointed by the Lord Chancellor, or the [Chancery Division], such legal right will vest accordingly ; and thereupon , the person or persons so appointed are authorised and em- powered to execute all deeds and powers -of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names or otherwise, or relating to the receipt of the dividends thereof, to the extent and in conformity with the terms of such order ; and the Bank of England and all companies and associations whatever, and all persons will be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terms of such order, as the said Bank of England, or such companies, associations, or persons, would have been bound and compellable to comply with the requisitions of the person in whose place such appoint- ment shall have been made ; and will be equally indemnified in complying with the requisition of such person or persons so ap- pointed as they would have been indemnified in complying with the requisition of the person in whose place such appointment shall have been made ; and after notice in writing of any such order of the Lord Chancellor, or of the [Chancery Division], concerning any stock shall have been given, it sball not be lawful for the Bank of England, or any company or association whatever, or any person having received such notice, to act upon the requisition of the person in whose place an appoint- ment shall have been made in any matter whatever relating to the transfer of such stock, or the payment of the dividends or produce thereof (a;). Effect of Where any order shall have been made under the provisions order vest- of the ActSj either hj the Lord chancellor, or by the [Chancery (hj) 15 & 16 Vict. c. 55, s. 5. (a;) 13 & 14 Tict. u. 60, s. 26. THE TRUSTEE ACTS, 1850 AND 1852. 317 V Division], vesting the legal right to sue for or recover any ing legal chose in action or any interest in respect thereof, in any xi ^ to person or persons, sueh legal right will vest accordingly ; and choses in thereupon the person or persons so appointed may carry on, actlon commence, and prosecute, in his or their own name or names, any action or other proceeding at law or in equity for the re- covery of such chose in action, in the same manner in all re- spects as the person in whose place an appointment shall have been made could have sued for or recovered such chose in action (y). Whensoever under any of the provisions of the Acts, an order Effect of shall be made, either by the Lord Chancellor, or the [Chancery ^°"* Division], vesting any copyhold or customary lands in any pointing person or persons, and such order shall be made with the consen t P erson ° of the lord or lady of the manor whereof such lands are holden, copyholds, then the lands will without any surrender or admittance in respect thereof, vest accordingly ; and whenever, under any of the provisions of the Acts, an order shall be made either by the Lord Chancellor, or the [Chancery Division], appointing any person or persons to convey or assign any copyhold or customary lands, such person or persons may do all acts and execute all instruments for the purpose of completing the assurance of such lands ; and all such acts and instruments so done and executed will have the same effect, and every lord and lady of a manor, and every other person, will, subject to the customs of the manor and the usual payments, be equally bound and com- pellable to make admittance to such lands, and to do all other acts for the purpose of completing the assurance thereof, as if the persons in whose place an appointment shall have been made, being free from any disability, had duly done and executed such acts and instruments ( z ). The lord need not appear in Court to consent ; it is sufficient to produce his written consent, which must be verified (a). Even where he does not consent he ought not to be served with the petition, because the order is without prejudice to his rights (b). When a decree shall have been made by [the Chancery Decree foi Division] directing the sale of any lands for the payment of the 3ale o£ (y) 13 & 14 Vict. i;. 60, s. 27. (*) Re Flitchcroft, 1 Jur. 418 ; (s) Id. s. 28. Re Howard, 3 W. R. 605; Paterson la) AyUs v. Cox, 17 Beav. 584 ; v. Paterson, 2 Eq. 31 ; Ayles v. Cooper v. Jones, 25 L. J. (Ch. ) 240. Cox, sup. 318 THE, STATUTORY JURISDICTION. realty to pay debts. Court may make vest- ing order, in lieu of conveyance by a party to the suit, after an order for Applica- tions by summons. Court may declare what par- ties are trustees of lands in any suit ; and as to the inte- rests of unborn persons. debts of a deceased person, every person seised or possessed of such lands, or entitled to a contingent right therein, as heir, or under the will of such deceased debtor, will be deemed to be so seised or possessed, or entitled, as the case may be, upon a trust within the meaning of the Acts ; and the [Chancery Division] is empowered to make an order wholly discharging the con- tingent right, under the will of such deceased debtor, of any unborn person (c). When any decree or Order shall have been made by [the Chancery Division] directing the sale of any lands for any purpose whatever, every person seised or possessed of such land, or entitled to a contingent right therein, being a party to the suit or proceeding in which such decree or order shall have been made, and bound thereby, or being otherwise bound by such decree or order, will be deemed to be so seised or possessed, or entitled (as the case may be), upon a trust within the meaning of the Trustee Act, 1850; and in every such case, the [Chancery Division] may, if the said Court shall think it expedient for the purpose of carrying the sale into effect, make an order vesting such lands or any part thereof, for such estate as the Court shall think fit, either in any pur- chaser or in such other person as the Court shall direct ; and every such order will have the same effect as if such person so seised or possessed, or entitled, had been free from all disability, and had duly executed all proper conveyances and assignments of such lands for such estate (d). Applications under 13 & 14 Vict. c. 60, s. 29, "and 15 k 16 Vict. c. 55, s. 1, are made by summons at Chambers (e). Where any decree shall be made by [the Chancery Division] for the specific performance of a contract concerning any lands, or for the partition or exchange of any lands, or generally when any decree shall be made for the conveyance or assignment of any lands, either in cases arising out of the doctrine of election or otherwise, the said Court may declare that any of the parties to the suit wherein such decree is made are trustees of such lands or any part thereof, within the meaning of the Trustee Act, 1850, or declare concerning the interest of unborn persons who might claim under any party to the said suit, or under the will or voluntary settlement of any person deceased who was (c) 13 & 14 Vict. c. 60, s. 29. Id) 15 & 16 Vict. c. 55, a. 1. (e) Cons. Ord. XXXV. r. 1 (4). THE TRUSTEE ACTS, 1850 AND 1852. 319 during his lifetime a party to the contract or transactions con- cerning which such decree is made, that such interests of un- born persons are the interests of persons who, upon coming into existence, would be trustees within the meaning of the Trustee Act, 1850; and thereupon the Lord Chancellor, or the [Chancery Division], as the case may be, may make such order or orders as to the estates, rights, and interests of such persons, born or unborn, as the [Chancery Division] or Lord Chancellor might under the provisions of the Acts make concerning the estates, rights, and interests of trustees born or unborn (/). Applications under this section to the Chancery Division, after a conveyance has been directed, are made at Chambers (g). The Lord Chancellor, or the [Chancery Division] may make Directions declarations and give directions concerning the manner in mav be ... given as which the right to any stock or chose m action vested under to exercise the provisions of the Acts shall be exercised ; and thereupon ° £ "S^ the person or persons in whom such right shall be vested will vested be compellable to obey such directions and declarations by the under the same process as that by which other orders under the Acts are enforced (h). Whenever it shall be expedient to appoint a new trustee or Court may new trustees, and it shall be found inexpedient, difficult, or ^P " 1 * 1 _. new trus- impracticable so to do without the assistance of the [Chancery tees. Division], the [Chancery Division] may make an order appoint- ing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees (i) ; and such order may be made whether there be any existing trustee or not at the time of making such order (j). The person or persons who, upon the making of such order Rights of as last aforesaid, shall be trustee or trustees, will have the a™ s *fXd° same rights and powers as he or they would have had if appointed by decree in a suit duly instituted (k). The [Chancery Division], upon making any order for appoint- Court may ine a new trustee or new trustees, may, either by the same or 7 est lands e iii m new by any subsequent order, direct that any lands subject to the trustees— (/) 13 & 14 Vict, c. 60, s. 30. (i) 13 & 14 Vict. c. 60, s. 32. For meaning of word "unborn," see (j) 15 & 16 Vict. c. 55, s. 9. As Burnett v. Moxcm, 20 Eq. 182 ; to appointment of new trustees with- Lees v. Coulton, id. 20. out the assistance of the Court, see (g) Cons. Ord. XXXV. r. 1 (4). 23 & 24 Vict. c. 145, ss. 27, 28. (h) 13 & 14 Vict. c. 60, s. 31. (Ic) 13 & 14 Vict. c. 60, s. 33. 320 THE STATUTORY JURISDICTION. — and the right to call for a transfer of stock, &c, or to sue for choses in action. Former trustees not dis- charged from lia- bility. Applica- tion of section 32. New trus- tees must consent. Affidavit of fitness. trust shall vest in the person or persons who upon the appoint- ment shall be the trustee or trustees, for such estate as the Court shall direct ; and such order will have thesame effect as if the person or persons who" before such order were the trustee or trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estate (I). The [Chancery Division] __ upon making an order for appoint- ing a new trustee or new trustees, may, either by the same or by any subsequent order, vest the right to call for a trans- fer (m) of any stock subject to the trust, or to receive the dividends or income thereof, or to sue for or recover any chose in action, subject to the trust, or any interest in respect thereof, in the person or persons who upon the appointment shall be the trustee or trustees (n). Any such appointment by the Court . of new trustees, and any such conveyance, assignment, or transfer as aforesaid, will operate no further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have done (o). Section 32 only provides machinery in cases where, on the face of the instrument, it appears difficult, impracticable, or inexpedient to act without the Court's aid ; and does not give the Court jurisdiction to consider the validity of the instrument or the conduct of trustees on petition. Cases where it is im- practicable to appoint new trustees without the aid.of the Court arise where there is a power given by an instrument for appointment of new trustees, but either (1) the donee of the power is incapacitated by lunacy or other causes, or (2) the words of the power do not apply to the case which has arisen ( p). The new trustees appointed must either give a written con- sent to act or counsel must consent for them (q) ; but they need not appear in order to consent (r). An affidavit of fitness (I) 13 & 14 Vict. c. 60, s. 34. (m) Under this section the Court is only empowered to "vest the right to call for a transfer " of stock ; but under 15 & 16 Vict. c. 55, s. 6, post, the right to the stock itself may be vested. (n) 13 & 14 Vict. c. 60, s. 35. (o) Id. s. 36. (p) Morg., 5th ed., 99, 100. (?) Be Parke, 21 L. T. 218. (r) Be Draper's Settlement, 2 W. E. 440. THE TRUSTEE ACTS, 1850 AND 1852. 321 is required (s) ; and it is not usually sufficient if made by the solicitor (<). Where a person has been convicted of felony, the Court may Where appoint a new trustee in his place" (m). And so where a bank- f^^tr rupt is a trustee (v). bankrupt. An order under any of the foregoing provisions, for the Who may appointment of a new trustee or trustees, or concerning any *™^. t ] ie lands, stock, or chose in action, subject to a trust, may be made Act?. upon the application of any person beneficially interested in such lands, stock, or chose in action, whether under disability or not, or upon the application of any person duly appointed as a trustee thereof; and an order under any of the said pro- visions, concerning any lands, stock, or chose in action, subject to a mortgage, may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the monies secured by such mortgage (w). An application under these Acts is usually made by petition. Applica- But a vesting order,' or an order appointing a person to convey, iioD ' llow 103,0.6. in pursuance of a decree or order directing the sale or con- veyance of land, or any estate or interest therein, is applied for in Chambers (x). In general all the cestuis que trusts, including Serrice. infants, must either be co-applicants or be served with the petition or summons (y) ; but where they are very numerous such service may be dispensed with (2) ; and trustees having a power of sale are deemed to sufficiently represent their cestuis que trusts (a). Upon the hearing of the application, the Court or Lord Power of Chancellor may make an order thereon in conformity with the hearing" Acts, or may order the case to stand over for further evidence, or to enable notice, or any further notice, of the application to be served, or may refer the matter to Chambers, or may dismiss the application, either with or without costs (6). Where in any cause or matter the facts necessary for an Power to make an (s) Re Battersay's Trusts, 16 Jur. (») Cons. Ord. XXXV. r. 1 (4). 900 ; Re Tunstall's Will, 15 Jur. \y) Re Fellows, 2 Jur. 62. 645, 981. \z] Re Shwrpley, 1 W. E. 271 j (t) Grundy v. Buckeridge, 22 h. Re Smyth, 2 De GK & S. 781. J. (Ch.) 1007. (a) Re Blwnchard, 3 D. P. J. («) 15 & 16 Vict. c. 55, *. 8. 131. (v) 32 & 33 Vict. c. 71, s. 117. (5) 13 & 14 Vict. c. 60, ss. 41, (w) 13 & 14 Vict. c. 60, s. 37. 42. 322 THE STATUTORY JURISDICTION. order under the Acts in a cause. Orders founded on certain allegations, to T)e con- . elusive evidence of the matter so Proviso. Bank of England and com- panies are to comply with orders. order under the Acts are sufficiently proved, the Court may, either upon the hearing of the cause, or of any petition or motion therein, make such order (c). The petition, even if presented in a suit, should be entitled in the matter of the Acts (d). Whenever any order. shall be made under the Acts, either by the Lord Chancellor, or by the [Chancery Division], for the purpose of conveying or assigning any lands, or for the pur- pose of releasing or disposing of any contingent right, and such order shall be founded on an allegation of the personal in- capacity of a trustee or mortgagee, or an allegation that a trustee or the heir or devisee of a mortgagee is out of the juris- diction or cannot be found, or that it is uncertain which of several trustees, or which of several devisees of a mortgagee, was the survivor, or whether the last trustee, or the heir or last surviving devisee of a mortgagee be living or dead, or on an allegation that any trustee or mortgagee has died intestate without an heir, or has died, and it is not known who is his heir or devisee, then in any of such cases the fact that the Lord Chancellor, or the [Chancery Division] has made an order upon such an allegation, will be conclusive evidence of the matter so alleged in any Court of law or equity upon any question as to the legal validity of the order ; provided that the [Chancery Division] may direct a reconveyance or reassign- ment of any lands conveyed or assigned by any order under the Acts, or a redisposition of any contingent right conveyed or disposed of by such order ; and the said Court may direct any of the parties to any suit concerning such lands or contingent right to pay any costs occasioned by the order under the Acts when the same shall appear to have been improperly obtained (e). When any order being or purporting to be made under the Act of 1852 or of 1850, shall be made by the Lord Chancellor, or the [Chancery Division], vesting the right to any stock, or vesting the right to transfer any stock, or vesting the right to call for the transfer of any stock, in any person or persons, in every such case the legal right to transfer such stock will vest accordingly ; and the person or persons so appointed may exe- cute all deeds and powers_of attorney, and perform all acts (c) 13 & 14 Vict. c. 60, s. 43. 237. (d) Gow S h v. Bage, W. N. (1871), (c) 13 & 14 Vict. c. 60, s. 44. THE TRUSTEE ACTS, 1850 AND 1853. 323 relating to the transfer of such stock into his or their own name or names, or otherwise, to the extent and in conformity with the terms of the order ; and the Bank of England, and all com- panies and associations whatever, and all persons, will be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terms of such order, as the said Bank of England or such companies, associations, or per- sons would have been bound and compellable to comply with the requisitions of the person in whose place such appointment shall have been made (/). Every order made or to be made under the Acts, by the Indemnity- Lord Chancellor, or by the [Chancery Division], and duly to ^ ank passed and entered, will be a complete indemnity to the Bank panies. of England, and all companies and associations whatever, and all persons, for any act done pursuant thereto ; and it will not be necessary for the Bank of England, or such company or association or person, to enquire concerning the propriety of such order, or 'whether the Lord Chancellor, or the [Chancery Division], had jurisdiction to make the same (g). The Lord Chancellor, or the [Chancery Division] may Trustees of exercise the powers conferred by the Acts for the purpose of ollarltles> vesting any lands, stock, or chose in action in the trustee or trustees of any charity or society over which the [Chancery Division] would have jurisdiction upon suit duly instituted, whether such trustee or trustees shall have been duly appointed by any power contained in any deed or instrument, or by the decree of the said [Chancery Division], or by order made upon a petition to the said Court under any statute authorising the said Court to make an order to that effect in a summary way upon petition (h). Where any infant or person of unsound m ind shall be en- Money of titled to any money payable in discharge of any lands, stock, or mfants a ° d chose in action conveyed, assigned, or transferred under the unsound Acts, the person by whom such money is payable is to pay the ? lnd - 1 ? t0 same into the Bank of England, in the name and with the into Court, privity of the [Paymaster-General], in trust in any cause then depending concerning such money, or, if there shall be no such cause, to the credit of such infant or person of unsound mind, (/) 15 & 16 Viot. c. 55, ». 6. (h) 13 & 14 Vict. o. 60, s. 45. (?) Id. s. 7. y 2 324 THE STATUTORY JURISDICTION. subject to the order or disposition of the said Court ; and the said Court may, upon petition in a summary way, order any money so paid to be invested in the public funds, and order payment or distribution thereof, or payment of the dividends thereof, as to the said Court shall seem reasonable ; and every cashier of the Bank of England who shall receive any such money is to give to the person paying the same a receipt for such money, and such receipt will be an effectual discharge for the money therein expressed to have been received (i). The Lord Chancellor, and the [Chancery Division], may order the costs and expenses, or any of them, of and relating to the petitions, orders, directions, conveyances, assignments, and transfers to be made in pursuance of the Acts, 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 (/). If the application is for the general benefit of the estate, e. g., the appointment of new trustees, the costs will be directed to be paid out of the corpus, as between solicitor and client ; but if it is for the advantage of the tenant for life alone, he will be ordered to pay the costs (k). Where an additional trustee was appointed on the petition and for the benefit of reversioners they were ordered to pay the costs (I). Stamp All orders made under the Acts which have the effect of a conveyance or assignment of lands, or a transfer of stock which is only transferable by deed, are chargeable with the same stamp duty as the conveyance, assignment, or transfer would have been chargeable with (m). The Commissioners of Inland Revenue have intimated to the Chancery Registrars that in their opinion the following descriptions of orders made under the Trustee Act, 1850, are chargeable under the Stamp Act, 1870, with the following duties : — (1.) Order appointing new trustees: one stamp of 10s. (2.) Order appointing new trustees and vesting in them the right to transfer stock: one stamp of 10s. (3.) Order appointing new trustees, and vesting land in them : two stamps of 10s. each. (4.) Order appointing new trustees, and vesting in them the right to sue for choses in (i) 13 & 14 Vict c. 60, s. 48. (Z) Re Brackenlwry, 10 Eq. 45. (j) Id. s. 51. (m) 15 & 16 Vict. c. 55, s. 13. (£) He FeUowes, 2 Jur. 62. duties THE TRUSTEE ACTS, 1850 AND 1852. 325 action : two stamps of 10*. each. When the choses in action are in the nature of a mortgage, bond, debenture, covenant, or foreign security, or of any money or stock secured by any such instrument, or by any warrant of attorney to enter up judgment, or by any judgment, and the total amount thereby secured is under £2000, an ad valorem stamp at the rate of 6d. per £100 is to be substituted for the second stamp of 10s. In no case when new trustees are appointed, and a vesting order made, are more than two 10s. stamps required. No stamp is required in respect of any order merely vesting the right to call for a transfer of, and to transfer, any stock (n). The Registrars are not to pass any such order, requiring to be stamped, until it has been duly stamped (o). Upon a petition concerning a person of unsound mind, a Commis- com mission de lunatico inquirendo may be directed (p). * 10D of In any case, the making any order upon the application may An act ; on be postponed until the right of the applicant has been declared may be in a suit duly instituted for that purpose (q). (a) Registrar's Notice, March, (p) 13 & 14 Vict. c. 60, s. 52. 1871. (?) Id. ». 53. (o) Id. Dec, 1862. CHAPTEE VI. Belief where purchase money paid to tenant for life. Proceed- ings by trustees, &c, to obtain opinion, &c, of judge. THE LAW OF PROPERTY AND TRUSTEES' RELIEF AMENDMENT ACTS. (22 & 23 Vict. c. 35 ; 23 & 24 Vict. c. 38) (a). Where, under a power of sale, a honafide sale shall be made of an estate with the timber thereon, or any other articles attached thereto, and the tenant for life or any other party to the transaction shall, by mistake, be allowed to receive for his own benefit a portion of the purchase money as the value of the timber or other articles, the [Chancery Division] may, upon [action brought] or application in a summary way, as the case may require or permit, declare that upon payment by the pur- chaser, or the claimant under him, of the full value of the timber and articles at the time of sale, with such interest thereon as the Court shall direct, and the settlement of the said principal monies and interest, under the direction of the Court, upon such parties as in the opinion of the Court shall be entitled thereto, the sale ought to be established ; and upon such payment and settlement being made accordingly, the Court may declare that the said sale is valid, and thereupon the legal estate will vest and go in like manner as if the power had been duly executed ; and the costs of the application as between solicitor and client are to be paid by the purchaser or the claimant under him (6); Any trustee, executor, or administrator may, without the institution of a suit, apply by petition to a judge of the [Chancery Division], or by summons upon a written statement to such judge at Chambers, for the opinion, advice, or direction of such judge on any question respecting the management or administration of the trust property, or the assets of any testator or intestate : such application to be served upon or the (a) For forms, see Daniell's Forms, 3rd ed. 1225—1228 ; Seton, 4th ed., 491, 2. (ft) 22 & 23 Viet. c. 35, s. 13. trustees' relief amendment acts. 327 hearing thereof to be attended by all persons interested in such application, or such of them as the judge shall think expedient ; and the trustee, executor, or administrator, acting upon the opinion, advice, or direction given by the judge, will be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator in the subject- matter of the application; but the Act does not extend to indemnify any trustee, executor, or administrator in respect of any act done in accordance with such opinion, advice, or direction as aforesaid, if such trustee, executor, or adminis- trator shall have been»guilty of any fraud or wilful conceal- ment, or misrepresentation, in obtaining such opinion, advice, or direction ; and the costs of the application are in the dis- cretion of the judge to whom the application is made (c). As the Act does not give any right of appeal, it was not Act does intended to decide nice questions of law, its object being to J 10 * exten(i procure for trustees at a small expense the assistance of the tions of Court upon points of minor importance arising in the manage- law - ment of the trust (d). When questions of construction arise, proceedings must either be taken under the Trustee Relief Acts (e), or an action must be brought (/). Among the matters upon which the Court has given advice Instances , under Section 30 are the following : — As to investments (g) ; °; V g^ ce as to payment of debts (h) ; as to the propriety of the trustees' consenting to a sale (i) ; as to the advancement of money for maintenance, or repairs (J) ; and as to granting leases (k). The application under Section 30 should be made by peti- Mode of tion m. ?P plica- v ' tion. The practice as to service of the petition seems to be un- g er _; ce settled. In one case it was held unnecessary to serve any person (m). The judge may require the petitioner or applicant to attend Attend- him by counsel, either in Chambers or in Court, where he ance b T • « / counsel, deems it necessary to have the assistance of counsel (n). (c) 22 & 23 Vict. c. 35, s. 30. (*) EarlPoulett v. Hood, 5Eq.ll5. (d) Lewin, 7th ed., 535. (j) Be Lord Sotham, 12 Eq. 76 ; \e) See Chapter IV., p. 299. Cuthbertson v. Wood, 19 W. R. 265. (/) Re Mockett, Johns. 628 ; Re (Jc) Re Shaw, 19 W. R. 125. Barrington, 1 J. & H. 142. (Z) Re Dennis, 5 Jur. 1388. {g) Re Knowles, 18 L. T. 809 ; Re- \m) Re Larken, W. N. (1872), 85 ; Clergy Orphan Corp., 18 Eq. 280. and see Re Tuck, W. N. (1869), 15. (h) Re Box, 1 H. & M. 552. (») 23 & 24 Vict. c. 38, s. 9. 328 THE STATUTORY JURISDICTION. Title and form of ings. Practice on summons. Service. No evi- dence ad- mitted. Judge's opinion, ' &c, to be passed and entered. All petitions, summonses, statements, affidavits, and other written proceedings under Section 30 are to be entitled in the matter of the Act, and in the matter of the particular trust, will, or administration ; and every such petition or statement must state the facts concisely, and must be divided into paragraphs, numbered consecutively ; and every such summons must, except as to its title, be in the form of the general summons (o). At the time when any such summons is sealed, the state- ment upon which it is grounded must be left at Chambers, and is, on the conclusion of the proceeding, to be transmitted to the Registrar by the Chief Clerk, with the minutes of the opinion, advice, or direction given by the judge ; and the Registrar is to cause such statement to be transmitted to the Report Office to be filed (p). Every such petition or su mm ons must be served seven clear days before the hearing thereof, unless the person served shall consent to a shorter time (q). No evidence is admitted on the application and no inquirks will be directed (r). The opinion, advice, or direction of the judge is to be passed and entered, and remain as of record, in the same manner as any order made by the Court or judge, and is to be termed a "Judicial Opinion," or " Judicial Advice," or "Judicial Direction," as the case may be (s). (o) Ord. 20th March, 1860, r. 1. (p) Id. r. 2. (2) Id. r. 3. (r) Re Mockett, Johns. 628. (s) Ord. 20th March, 1860, r. i. CHAPTER VII. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. (6 Vict. c. 18) (a). The purchase-money or compensation payable in respect of Provision lands, or of permanent damage to lands, to parties under dis- ^'"t„ ability, or having a partial or qualified interest, and not entitled Court, to sell except under the Lands Clauses Consolidation Act, 1845, or the special Act (6), if amounting to or exceeding £200 is to be paid into Court, with the privity of the [Paymaster-General], to the credit of Ex parte the promoters of the undertaking, in the matter of the special Act ; and is to remain so deposited until applied in either of the modes hereinafter mentioned (c). If the money has been paid by mistake to a person under dis- ability he may apply by petition to pay it into Court (d). v ~— >, The money may be applied by the order of the Court to somo Applica- one or more of the following purposes : — (1.) In the purchase tlon or redemption of the land tax, or the discharge of any debt or incumbrance affecting the land in respect of which such money shall have been paid, or affecting other lands settled therewith to the same or the like uses, trusts, or purposes ; or (2.), in the purchase of other lands : to be conveyed, limited, and settled upon the like uses, trusts, and purposes, and in the same manner, as the lands in respect of which such money shall have been paid stood settled ; or (3.), if such money shall be paid in respect of any buildings taken under the authority of this or the special Act, or injured by the proximity of the works, in removing or replacing such buildings, or substituting others in . (a) For forms, see Daniell's Forms, relates and incorporated with the 8 3rd ed. 1183—1192. Vict. c. 18 (s. 2). (o) " The Special Act " means any (c) 8 Vict. c. 18, s. 69; Ch. Act passed after the. 8 Vict. c. 18, Funds Kules, 1874, r. 32. authorising the taking of lands for (d) Re L. B. & S. 0. Ry. Co., i the undertaking to which the same W. B. 315. 330 THE STATUTORY JURISDICTION. Quality of money paid in. Disentail- ing deed. Payment to parties entitled. Order for / application j or invest-/ J ment. / J their stead, in such manner as the [Chancery Division] shall direct ; or (4.), in payment to any party becoming absolutely entitled to such money (e). On payment of a fund into Court under section 69 there is a constructive reconversion which the person becoming entitled to the fund may stop ; but until it is stopped the money is to be considered as land (/). Where, however, land was taken from a person of weak mind, but who had not been found a lunatic, the purchase-money was held to be personalty (g). It seems now to be settled that where a fund in Court is claimed by the person who would have been tenant in tail of the land, a disentailing deed must be executed before the pay- ment out (h) ; but where the sum was less than £200 this has been dispensed with (i). I Persons entitled to a share of the fund may apply for the same without serving the other persons entitled (J). Where a married woman is entitled, the fund will not usually be paid without a deed acknowledged by her, or her consent given in Court (k) ; but this was not required where the sum was only £50 (Z). Trustees with power of sale (m ) and trustees of charities (n) are parties absolutely entitled. Mortgagees in possession were held to be entitled to a fund representing a part of the mortgaged property, and to a further sum repre- senting the decrease in value of the goodwill (o). The transfer of the fund to a separate account is equivalent to a payment out ( p) ; but not where the fund has been transferred to the ■ Recount of trustees who had no real interest in it (q). J J An order for the application of the purchase-money will be / made on the petition of the party who would have been entitled I to the rents and profits of the lands in respect of which the j | money shall have been deposited ; and until the money can be (e) 8 Viot. c. 18, s. 69. (/ ) Kelland v. Pvlford, 6 Ch. D. 491. (g) Ex parte Flamanh, 1 Sim. 260. (h) Re Reynolds, 3 Ch. D. 61. (i) Be Tylden, 11 W. E. 869. (j) Me Midland My. Co., 10 Jur. 1095 ; MeUimg v. Bird, 17 Jar. 155. (A) Re Hayes, 9 W. E. 769. [l) Me Clarke's Estate, 13 W. R. 401. (m) Re Bdbson's Trusts, 7 Ch. D. 708. (») Re Spurstowe's Charity, 18 Eq. 279. (o) Pile v. Pile, Ex parte Lamb- ton, 3 Ch. D. 36. (jp) MeUmg v. Bird, sup.; Re Bristol School, 47 L. J. (Ch.) 317. (2) Re Burnett's Estate, 12 W. K. ,568. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 331 so applied it may, upon the like order, be invested by the [Pay- master-General], in £3 per cent, consolidated or £3 per cent, reduced annuities, or in Government or real securities, and the interest, dividends, and annual proceeds paid to the party who would for the time being have been entitled to the rents and profits of the land (r). The petitioner claiming to be entitled to the money paid in Affidavit of must make an affidavit, not only verifying his title, but also claimant- stating that he is not aware of any right in any other person, or of any claim made by any other person, to the sum men- tioned in the petition, or any part thereof ; or if he is aware of any such right or claim, he must in such affidavit state or refer to and except the same (s). Even if the application is merely for transfer to a separate accou nt, and for payment of the in terest to a tenant for life, the practice of the Court is to ' require the production of such an affidav it ; but the Court may dispense with the affidavit being made by all the petitioners. In the case of charity land, an affidavit by the clerk to the trustees was held sufficient ; and the affidavit of the bursar of a college, or of the solicitor or secretary of a company or cor- poration is accepted (<). The petition should be entitled in the matter of the par- etition, ticular will or settlement, and of the Lands Clauses Con- ?° W j en " ' titled. solidation Acts, 1845, 1860, and 1869, and the special Act. And if an order with reference to the fund has already been i n -what made in one branch of the Division, subsequent applications branch of should be made to the same branch (w). When two funds t, e pre- having been separately dealt with in different branches are to senteii - be invested in one purchase, one petition only should be pre- sented (v) ; and by consent of both judges leave was given to present one petition in both matters, without transfer of either (w). Where the fund belongs to a charity, it is not necessary to Charity obtain the sanction of the Charity Commissioners to the fnn ' petition (x). Although the application must (in the absence of express Applica- statutory provision) be made in the first instance by peti- Q h °^™ ers («•) 8 Vict. o. 18, s. 70. (») Be Gore Langton, 10 Ch. 328. (s) Cons. Ord. XXXIV. r. 3. \w) Be Lord Artie*,, 10 Ch. 445. (t) Seton, 4th ed. 1425. (a) Ee Lister's Hospital, 6 De Q. («) Be Browne, 14 W. B. 298. M. & G. 184. 332 THE STATUTORY JURISDICTION. Service of petition. Where fund is above £20 and under £200. Where fund does not exceed £20. tion (y), yet where it is proposed to invest part only of the fund, leave may be given to apply in Chambers as to the in- vestment from time to time of the balance (z) ; and where a fund was ordered to be carried to the separate account of infants, the Court gave leave to apply at Chambers for pay- ment out of the shares as the infants came of age (a). The petition should be served on the company, but need not be served on the remaindermen (6) ; unless it is presented under section 74 as well as under section 70 and the remainder- men are " parties interested '' within section 74 (c) ; or unless it seeks reinvestment in investments other than lands (d). Persons having charges on the lands taken should be served, and should, if their interests are not affected, be tendered 42s. for costs (e). If the purchase-money or compensation does not amount to £200, and exceeds £20, the same may either be paid into the Bank in the manner directed by section 69 (/), or the same may be paid to two trustees, to be nominated by the parties entitled to the rents or profits of the lands in respect whereof the same shall be payable ; such nomination to be signified in writing under the hand of the party so entitled ; and in case of the coverture, infancy, lunacy, or other incapacity of the parties entitled to such monies, such nomination may be made by their respective husbands, guardians, committees, or trustees; but such last-mentioned application of the monies is not to be made unless the promoters of the undertaking approve thereof, 1 and of the trustees named for the purpose ; and the money so paid to such trustees, and the produce arising therefrom, is to be by such trustees applied in the manner before directed with respect to money paid into the Bank (g) ; but it shall not be necessary to obtain any order of the Court for that purpose (h). If the money does not exceed £20, it is to be paid to the parties entitled to the rents and profits of the lands in respect whereof the same shall be payable, for their use and benefit, or, (y) Ee Clarke, 6 W. R. 812 ; Be JoUiffe, 9 Eq. 668. (s) Ee Dunrmen Estates, 10 W. R. 56. (a) Be Eeaston's Estate, 13 Eq. 564. (i) Ex parte Staples, Be Browne, 1 De G. M. & G. 294. (c) Be Oram's Estate, 7 Eq. 322. (d) Ee Leigh's Estate, 6 Ch. 887. (c) Be Gore Langton, 10 Ch. 328 ; and see Rules of Supreme Court, Costs (Special Allowances), r. 17. (/) See pp. 329,330. (?) H. (A) 8 Vict. c. 18, s. 71. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 333 in case of the coverture, infancy, idiocy, lunacy, or other in- capacity of any such parties, then such money is to be paid for their use to the respective husbands, guardians, committees, or trustees of such persons (i). All sums of money exceeding £20, which may be payable by Provision the promoters of the undertaking in respect of the taking, as to ™ ms using, or interfering with any lands under a contract or agree- £20, where ment with any person who shall not be entitled to dispose of pe ?.° ] n ? " ot such lands or of the interest therein contracted to be sold by dispose of him absolutely for his own benefit, are to be paid into the Bank J* u ? s for ** their own or to trustees in manner aforesaid ; and it shall not be lawful benefit. for any contracting party not entitled as aforesaid to retain to - v his own use any portion of the sums so agreed or contracted to be paid for or in respect of the taking, using, or interfering with any such lands, or in lieu of bridges, tunnels, or other accommodation works, or for assenting to or not opposing the passing of the bill authorising the taking of such lands ; but all such monies will be deemed to have been contracted to be paid for and on account of the several parties interested in such lands, as well in possession as in remainder, reversion, or expectancy : but it is in the discretion of the [Chancery Division], or the said trustees as the case may be, to allot to any tenant for life, or for any other partial or qualified estate, for his own use, a portion of the sum so paid into the Bank, or to such trustees as aforesaid, as compensation for any injury, inconvenience or annoyance which he may be considered to sustain, independently of the actual value of the lands to be taken, and of the damage occasioned to the lands held there- with, by reason of the taking of such lands and the making of the works (j). Where any purchase money or compensation, paid into the Provision Bank under the provisions of the Lands Clauses Consolidation wnfl re Act, 1845, or the special Act, shall have been paid in respect pa id in is of any lease for a life or lives, or for years, or for a life or lives in res P cct . ',,..', ' ' , , , „ j of an estate a nd years, r "- nny eataie m lands leas than the wbr>1» fo | P | m ™-pU Iesgthan thereof, or of any reversion dependent on any such lease or tue fee - e state, th n [nba.Tip.pry Divis ion] may, on the petition of any parties interested in such money, order that the same shall be laid out, invested, accumulated, and paid, in such manner as (i) 8 Vict. c. 18, ». 72. ( j) Id. s. 73. 334 THE STATUTORY JURISDICTION. the Court may consider will give to the parties interested in such money t he same ben°f t thetefcam «« thsg wo uld lawfully ave had from the lease, estate, or reversion, in respect of which Provision where owner refuses to accept purchase money, &c. such mone y shall J ha 1 ye..hBai*. -paidj- ©b~ as- ji< J[e~[kj. jThe remainderman should be made a respondent to a petition by a tenant for life under this section, and the pro- moters will have to pay the costs of such remainderman (I). The interest of a life-tenant is to be affected as little as possible ; accordingly, when the dividends of the purchase money are not equal to the rent of the leaseholds taken, or to an annuity charged thereon, the tenant for life, or annuitant, has been held entitled to the same income as he formerly enjoyed, and sales from time to time of the corpus to make up the deficiency have been directed ; the costs of such periodical sales being payable by the company. Where, however, the dividends were much less than the rent, the Court would not make up to the life- tenant his full income (m). Where in the case of a house let for a term at rack rent, which stands limited to a tenant, for life and a remainderman, the s dividends exceed the rent, the tenant for life will only be entitled to the amount of the rent, and the rest will be accumulated ; but if the tenant for life survive the term he will be entitled to the dividends of the whole accumulated fund for the restjaf his life («). If the owner of any lands taken, or of any interest therein, on tender of the purchase money or compensation, refuses to accept the same, or fails to make out a satisfactory title, or refuses to convey, or is absent from the kingdom, or cannot be found, the purchase money or compensation ma y be p aid__into^ the Bank as before mentioned : to be placed, except in the cases otherwise provided for by the Act, to the account of the [Paymaster-General], to the credit of the parties interested in such lands (describing them, so far as the promoters of the undertaking can do), subject to the control and disposition of the Court. The estate and interest in the lands will then vest in the promoters of the undertaking, upon a deed-poll being executed by them (o). (4) 8 Vict. c. 18, s. 74. (I) Re Cram's Estate, 7 Eq. 322. . (m) Seton, 4th ed. 1436, citing Ex 'parte WUUamson, 3 Dr. & S. 633 ; Jeffreys v. Connor, 28 Beav. 328 ; Re Long, I W. K. 226 ; Re Birch, 10 Jur. 673. (to) Re Mctte's Estate, 7 Eq. 72. (o) 8 Vict. c. 18, ss. 76, 77. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 335 Upon the application by petition of any party making claim to the money deposited under section 76, or any part thereof, or to the lands in respect whereof the same shall have been so deposited, or any part of such lands, or any interest in the same, the [Chancery Division] may, as to such Court shall seem fit, order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment of the dividends thereof, according to the respective estates, titles, or interests of the parties making claim to such money or lands, or any part thereof, and may make such other order in the premises as to such Court shall seem fit (p). The petition must be supported by an affidavit of title (q). If it should appear that the claimant has not the whole of the interest he claims, the Court will ascertain and pay to him the value of his interest, and order the residue to be re-paid to the company (r). A mortgagee or his transferee may apply for payment under section 78 (s). The Court cannot make any order respecting interest on money paid in under section 76 (t). If any question arise respecting the title to the lands in Questions respect whereof such monies shall have been so paid or de- oi title - posited as aforesaid, the parties respectively in possession of such lands as being the owners thereof, or in receipt of the rents of such lands as being entitled thereto at the time of such lands being purchased or taken, will be deemed to have been lawfully entitled to such lands, until the contrary be shown to the satisfaction of the Court ; and unless t he contrary be so shown, the pa rties so in possession, and all parties claimin g " tinder them, or consistently with their possessi on, will be deemed entitled to the money so deposited, and to the dividend 's ojjnterest of the annuities or securities purchased therewith, and the same win pe paid ana applied accordingly ( u). J In au cases ot monies deposited in the Bank under the pro- Costs. visions of the Lands Clauses Consolidation Act, 1845, or the special Act (v), or any Act incorporated therewith, except where such monies shall have been deposited by reason of the wilful refusal of any party entitled thereto to receive the same, or to (p) 8 Vict. c. 18; s. 78. («) Re Or. Pal. Ry. Co., 1 Jur. (?) See p. 331. 995. (r) Brandon v. Brandon, 2 Dr. & («) 8 Vict. c. 18, s. 79. S. 305 ; BeN. L. Ry. Co. id. 312. \v) See p. 329, note (6). (s) Re Marriage, 9 W. E. 843. 336 | THE STATUTORY JURISDICTION. convey or release the lands in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required, the [Chancery- Division] may order the costs of the following matters, including therein all reasonable charges and expenses, incident thereto, to be paid by the promoters of the undertaking (that is to say), the costs of the purchase or taking of the lands, or which shall have been incurred in consequence thereof, other than such costs as are herein otherwise provided for, and the costs of the invest- ment of such monies in Government or real securities, and of the re-investment thereof in the purchase of other lands, and also the costs of obtaining the proper m-rW g far an y nf t.ha pur- poses aforesaid, and of Lite ortt erflfr™ *' ha pny ^nt of th e dividends and interest of the securities upon which such monies shall be invested, and for the payment out of Court of the principal of such monies, or of the securities whereon the same shall be invested, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants ; but the costs of one application only for re-investment in land are to be allowed, unless it shall appear to the [Chancery Division] that it is for the benefit of the parties interested in the said monies that the same should be invested in the purchase of lands in different sums and at different times ; in which case, the Court may, if it think fit, order the costs of any such investments to be paid by the promoters of the under- taking (w). In dealing with the question of costs under the Act, the sympathies of the Court will, if there is any doubt, be on the side of the owner whose land is compulsorily taken ; and his refusal or neglect to convey will not be considered wilful, unless it has arisen from caprice {x). The costs of all conveyances of lands purchased under the provisions of the Lands Clauses Consolidation Act, 1845, or of the special Act, or any Act incorporated therewith, are to be borne by the promoters of the undertaking ; and such costs are to include all charges and expenses, incurred on the part as (w) 8 Vict. o. 18, s. 80. Met. Dint. Ry. Co., Ex parte Law- (x) Dan. Pr. 1875, citing Re Long, son, 17 W. R. 186. For other 10 Jur. 417; Re Windsor, &c, Ry. decisions under Section 80, see Dan. Co., 12 Beav. 522; Re E. & W. Pr. 1875—1882; Seton, 4th ed. IndiaDocks Ry. Co., 12 Jur. 888 ; Re 1442—1447. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 337 well of the seller as of the purchaser, of all conveyances and assurances of any such lands, and of any outstanding terms or interests therein, and of deducing, evidencing, and verifying the title to such lands, terms, or interests, and of making out and furnishing such abstracts and attested copies as the promoters of the undertaking may require, and all other reasonable ex- penses incident to the investigation, deduction, and verification of such title (y). If the promoters of the undertaking, and the party entitled Provision to any such costs, do not agree as to the amount thereof, such *? r ^ costs are to be taxed by one of the Taxing Masters of the costs not [Chancery Division], upon an order to be obtained upon pe- a S reed - tition in a summary way by either of the parties (z) ; and the promoters of the undertaking are to pay what the Master shall certify to be due in respect of such costs to the party entitled thereto ; or, in default thereof, the same may be recovered in the same way as any other costs payable under an order of the [Chancery Division] ; or by distress in the manner by the Act provided in other cases of costs (a) ; and the expense of taxing such costs is to be borne by the promoters of the undertaking, unless, upon such taxation, one-sixth part of the amount of such costs shall be disallowed : in which case the costs of such taxation are to be borne by the party whose costs shall be so taxed, and the amount thereof is to be ascertained by the Master, and de- ducted by him accordingly in his certificate of such taxation (6). The promoters of the undertaking may enter upon the lands Entry by required, before an agreement has been come to, an award P romo ' ers - made, or a verdict given, for the purchase money or compensa- tion, on payment into Court of the amount claimed, or of the estimated value of the lands : to be estimated in the manner in the Act mentioned (c) ; and on giving a bond (d ) for payment into the Bank by way of/security of all purchase money or com- pensation which may be/payable by them, with interest at the rate of £5 per cent. The amount so deposited may, on the application by petition of the promoters, be invested in bank annuities or government securities ; and on the condition of the (y) 8 Vict. c. 18, ss. 81, 82. For (6) 8 Vict. c. 18, s. 83. decisions under these sections, see (c) As amended by 30 & 31 Vict. Dan. Pr. 1883, 1884 ; Seton, 4th ed. c. 127, s. 36. 1448, 1449. (a!) As to sureties, see 30 & 31 (2) The petition is of course. Vict. c. 127, ». 36. (a) See 8 Vict. ^. 18, s. 83. 338 THE STATUTORY JORISDrCTEOX . Provision where Pay Office closed. bond being fully performed, the deposit, or the funds in which it has been invested, and any accumulations thereon, may, upon the like application, be ordered to be paid or transferred out to the promoters ; or, if the condition of the bond is not fully performed, the Court may order the deposit to be applied as it shall think fit, for the benefit of the parties for whose security it was deposited («). The promoters are not entitled to enter on the land before purchase under section 85 (as amended by 30 & 31 Vict. c. 127, s. 36) unless there is an urgent necessity for immediate entry (/). Section 85 does not extend to a case of interference with an easement {g). Pay- ment of the deposit into Court does not affect the vendor's lien for unpaid purchase money (/<,). If the conditions of the bond are not performed, the Court may, on the petition of the vendor, apply the deposit in payment of the purchase money (£). The provisions of section 80 as to costs (/) apply to monies paid in under section 85 (k). The owner of the land must either be made a co-petitioner on the application for repayment of the deposit, or the petition must be served on him ; and he is entitled to his costs of appearing (I). If, in consequence of the [Chancery Pay Office] being slosed, the usual direction for the payment into the Bank of ;he deposit cannot be procured, the company may, upon a written request to the Governor and Company of the Bank of England, signed by their secretary or solicitor, pay the amount into the Bank to the credit of such party or cause as the case may require ; but within ten days after the reopening of the [Chancery Pay Office], the solicitor for the promoters must bespeak a direction for the payment in of the amount ; and upon production of such- direction at the Bank, the amount previously paid in will be placed to the credit of the [Pay- master-General], and the usual receipt given (to). («) 8 Vict. c. 18, ss. 85, 87. (/) Field v. Carnarvon, die., Ry. Co., 5 Eq. 190. (g) Clark v. London School Board, 9 Ch. 120. (A) Wing v. Tottenham, how ceeding relative thereto, must be entitled in the matter of " The Railway Companies Act, 1867," and in the matter of the company in question (e) ; and must be marked, either with the name of one of the Vice-Chancellors, or with the words " Master of the Rolls ; " and the matter of such scheme (unless removed by some special order of the Lord Chancellor) will accordingly be attached to the Court of such Vice-Chancellor, or to the Court of the Master of the Rolls, as the case may be (/). (a) For forms, see Daniell's Forms, (c) This includes " stock," s. 3. 3rd ed. 1193—1204. (d) 30 k 31 Vict. c. 127, s. 6. (6) See such a scheme in extenso (e) Ord. 24th Jan., 1868, r. 4. in Re Bristol, ;. 12, ». 2. (6) 36 Vict. c. 12, s. 1. infant to mother. 358 THE STATUTORY JURISDICTION, legal power and natural authority ; and that the law will not permit a father to delegate his rights and powers over his infant to the mother ; and, therefore, if the utmost effect were given to the separation deed, it would only place the infant in the position of a fatherless child (e). (e) Re Besant, 40 L. T. 469. CHAPTER XIII. THE VENDOR AND PURCHASER ACT, 1874. (37 & 38 Vict. c. 78) (a). By section 9 of this Act it is provided that a vendor or pur- Summons chaser of realty or leaseholds in England, or their representa- "1 res P?° t tives respectively, may apply in a summary way to a judge of sitions the [Chancery Division], in Chambers, in respect of any requisi- que st jon S tions or objections, or any claim for compensation, or any other arising question arising out of or connected with the contract (not JJJLjLg* being a question affecting the existence or validity of the con- tract), and the judge will make such order upon the application as to him shall appear just ; and will order how, and by whom, all or any of the costs of and incident to the application are to be borne. The application is to be made by summons entitled in the matter of the agreement, and in the matter of the Act. The title should shortly state the date of the agreement, the parties to it, and the particulars of the property comprised in it (6). When a summons has been taken out, the parties are in pre- Decisions, cisely the same position as if a decree for specific performance and a reference to Chambers as to title had been made ; and therefore evidence will be admitted to the same extent as upon such a reference (c). Short points of law or construction arising upon the abstract, or upon the requisitions, or in respect of the contract may be brought before the judge, but not ques- tions of disputed facts (d). The Act does not apply in cases of voluntary grants, although a nominal consideration is suffi- cient as a foundation for proceedings thereunder («). (a) JFor forms, see Daniell's Forms, (d) Popple and Barratt, 25 W. E. 3rd ed. 1252. 248. (J) Seton, 4th ed. 1318. (e) He Marquis of Salisbury, 23 (c) Me Burroughs, Lynn, and W. K. 824. Sexton, 5 Ch. D. 601. CHAPTER XIV. Provision for regis- tration of trade marks. Refusal to register. Applica- tion for rectifica- tion of register. THE TRADE MARKS REGISTRATION ACTS. (38 & 39 Vict. c. 91 ; 39 & 40 Vict. c. 33 ; 40 & 41 Vict. 37) (a). The Trade Marks Registration Act, 1875 (b), provides for the establishment of a register of trade marks, and of the proprie- tors thereof, under the superintendence of the Commissioners of Patents. By the same Act, as extended and amended by the Trade Marks Registration Amendment Act, 1876 (c), from and after the 1st July, 1877, no proceedings may be instituted to prevent, or to recover damages for, the infringement of any trade mark as denned by the Act of 1875 until and unless such trade mark is registered in pursuance of that Act, or until and unless, with respect to any device, mark, name, or combination of words, or other matter or thing in use as a trade mark before the passing of the Act of 1875 (d), registration thereof as a trade mark under the Act of 1875 shall have been refused. By section 2 of the Act of 1876, on the refusal of an application to register as a trade mark a device, mark, name, word, combi- nation of words, or other matter or thing proposed for registra- tion, which has been in use as a trade mark before the 1 3th August, 1875, the Registrar is, on request and on payment of the prescribed fee, to give to the applicant a certificate of such refusal ; and a certificate so granted will be conclusive evidence of such refusal. Any person aggrieved by the wrong entry on the register of the name of some one else, or the omission of his own name as proprietor of a trade mark, or by the registration as a trade mark of a mark not authorised by the Act, may apply to the Chancery division by motion, or by application in Chambers, or (a) For forms, see Daniell's Forms, 3rd ed. 1253, 1251. (1) 88 &39 Vict, c 91. (c) 39 & 40 Vict. c. 33. [d) 13th Aug., 1875. THE TRADE MARKS REGISTRATION ACTS. 361 in such other manner as the Court may direct, for an order of the Court that the register may be rectified ; and the Court may make an order for rectification of the register, and award damages to the party aggrieved (dd). In proceedings under section 5 the Court may decide all questions necessary or expe- dient to be decided for the rectification of the register, and may direct an issue to be tried for the decision of any question of fact which may require to be decided for the purposes of the section. Conflicting claims are, unless the Court otherwise orders, to Conflicting be submitted to the Court by special case, to be settled by the olaims - Registrar in case the parties differ, or in such other manner as the Court may direct (e). Applications for registration of a trade mark on refusal of Applica- the Registrar are to be made by motion. Two clear days' notice reg j s tra- of motion must be given, and the motion must be supported by tion re- an affidavit of the applicant verifying his case (/). A trade mark, as defined by the Act of 1875 (or), consists of Definition , , , - . , ■ , of trade a name of an individual or firm printed, impressed, or woven in ma rk. some particular and distinctive manner ; or a written signature, or copy of a written signature, of an individual or firm ; or a distinctive device, mark, heading, label, or ticket ; and there may be added to any one or more of these particulars any letters, words, or figures, or combination of letters, words, or figures ; also any special and distinctive word or words, or com- bination of figures or letters, used as a trade mark before the passing of the Act, may be registered as such under the Act. In section 10 the word " figures " means numerical figures (h). Figures. The Court refused to direct the registration as a trade mark, Single adopted since the passing of the Act of 1875, of a single word word - or combination of letters (i). The Court has, under Ord. LV., discretion over the costs of Costs. proceedings under the Trade Marks Registration Acts from the moment that such proceedings come into Court ; but not over the costs of proceedings in the office of the Registrar of Trade Marks (j). (dd) 38 & 39 Vict. u. 91, =. 5 ; 819. Rules under Trade Marks Act, 2, (#) 38 & 39 Vict. c. 91, s. 10. 43. (h) Re Stephens, 24 W. R. 963. (c) Rules under Trade Marks Act, (i) Id. 44 45. (j) Re Brandreth's Trade Mark, (/) Ex parte Stephens, 24 W. R. 9 Ch. D. 618. CHAPTER XV. JURISDICTION UNDER CERTAIN MISCELLANEOUS STATUTES. In addition to the statutes mentioned in the preceding Chapters of this Part, the Chancery Division has jurisdiction in respect of various other Acts, a mere passing allusion to some of the chief of which is all that the limits of this work will allow. . (1.) The Burial Acts (a). Whereby the sanction of the Court is necessary in order that charity lands vested in parochial trustees may be taken for burial grounds. (2.) The Municipal Corporations Acts (6). Whereby the Court may appoint new trustees of property held by a corporation for charitable purposes. (3.) The Parliamentary Deposits Act (c). Whereby provisions are made for payment into Court of monies required by the Standing Orders of either House of Parliament to be deposited by the subscribers to any under- taking to be executed under the authority of an Act of Parlia- ment. (a) 15 & 16 Vict. c. 85 ; 16 & 17 (6) 5 & 6 Wm. 4, c. 76, s. 71 ; Vict. c. 134 ; 17 & 18 Vict. c. 87 ; 16 & 17 Vict. c. 137, s. 65. For 18 & 19 Vict. u. 128 ; 20 & 21 Vict. form of petition, see Daniell's Forms, c. 81 ; 22 Vict. c. 1 ; 23 & 24 Vict. 3rd ed. 1160. c. 64 ; 25 & 26 Vict. c. 100 ; 34 & (c) 9 & 10 Vict. c. 20. For forms, 35 Vict. c. 33. For form of peti- see Daniell's Forms, 3rd ed. 1180— tion, see Daniell's Forms, 3rd ed. 1182. 1158. JURISDICTION UNDER MISCELLANEOUS STATUTES. 363 (4.) Act for Production of Cestui Que Vie (d). Whereby the owner in expectancy, upon affidavit that he has cause to believe that the cestui que vie is dead, may obtain an order from the Chancery Division for his production. (5.) The Land Tax Redemption Acts (e). Whereby part of a settled estate may be sold or mortgaged, or timber growing thereon may be ordered to be cut and sold, and the proceeds applied in redeeming the land tax. (6.) The National Debt Act, 1870 (/). Whereby application may be made for the payment or trans- fer of unclaimed stock or dividends in favour of the persons claiming to be entitled thereto. (7.) The Property Law Amendment Act (g). Whereby provision is made for the surrendering and renewing of renewable leases in the case of infants and married women ; and the granting of leases where infants are entitled in fee or in tail. (8.) Tlie Act for the Abolition of Fines and Recoveries (h). Whereby the Lord Chancellor, or other person or persons entrusted with the care of persons found lunatic, is constituted protector of the settlement where any protector shall be a lunatic, idiot, or of unsound mind, whether or not so found by inquisition ; and whereby the [Chancery Division] is consti- tuted protector if any protector shall be convicted of treason or felony, or, not being the owner of a prior estate under the (d) 6 Anne, c. 18. For forms, Forms, 3rd ed. 1212. see Daniell's Forms, 3rd ed. 1204— (g) 11 Geo. 4 & 1 ffm. 4, c. 65. 1206. For forms, see Daniell's Forma, 3rd («) 42 Geo. 3, c. 116 ; 16 & 17 ed. 1214-1217. Vict. c. 117. For form of petition (A) 3 & 4 Win. 4, c. 74. For for leave to cut and sell timber, see form of petition for consent of Court Daniell's Forms, 3rd ed. 1211. as protector, see Daniell's Forms, 3rd (/) 33 & 34 Vict. c. 71, «. 55. ed. 1217. For form of petition, see Daniell's 364 THE STATUTORY; JURISDICTION, settlement, shall be an infant, or the protector is living or dead, if it shall be uncertain whether (9.) Investment on Real Set urities in Ireland Act (i). Whereby the Court may authorise monies of persons not sui juris to be lent upon real securities in Ireland. (10.) The Dtfence Acts (J). Whereby provision is made nor payment into Court of com- pensation amounting to more than £200 payable by the War Department in respect of lands required under these Acts, in the case of persons not sui juris, or who cannot be found, or refuse to accept the compensation, or who neglect or fail to make out a title as therein mfentioned. (11.) The Improvement of Zand Act, 1864 (k). Whereby the Court may direct the Inclosure Commissioners to proceed with applications under the Act notwithstanding the dissent of certain persons interested. (12.) The Inclosure Act, 1845 (I). Whereby provision is made for payment into Court and ap- plication of monies payable under the Act to persons under disability. (13.) The Merchant Shipping Acts (m). Whereby a ship or share of a ship vested by transmission in an unqualified owner may be ordered by the Court to be sold. (i) 4 & 5 Wm. 4, c. 29. For form of petition, aee Daniell's Forms, 3rd ed. 1218. (j) 5 & 6 Viot. c. 94, ss. 25—28 ; 18 & 19 Viet, c.' 117 ; 22 & 23 Vict, c. 21, s. 8 ; 23 & 24 Vict. c. 112, ss. 20—24, 29, 45 ; 27 & 28 Viot. c. 89. For forms, see Daniell's Forms, 3rd ed. 1221—1223. (4) 27 & 28 Vict. c. 114, ss. 18, 19, 21. For form of summons, see Daniell's Forms, 3rd ed. 1222. {1) 8 & 9 Vict. c. 118, ss. 134 137—140. (m) 17 & 18 Vict. c. 104, ss. 62— 65, 514 ; 18 & 19 Vict. c. 91, s. 10 ; 25 & 26 Vict. c. 68. For forms, see Daniell's Forms, 3rd ed. 1224, 1225. JURISDICTION UNDER MISCELLANEOUS STATUTES. 365 (14.) The Confirmation of Sales Act (m). Whereby trustees not expressly forbidden by the trust instru- ment may petition for leave to dispose of land ■without the minerals ; or of the minerals without the land. (15.) The Mortgage Debenture Acts(o). Whereby a mortgagor of a registered security, upon default of the company, may apply at Chambers for an order for the discharge thereof on the register of the company's securities ; and whereby on default of payment of principal or interest due on a mortgage debenture, the person entitled thereto may apply for the appointment of a receiver (p). (16.) Debts and Liabilities — Sir George Turner's Act () Dan. Pr. 149—152. (y) Cons. Ord. X. r. 1 ; Id. (*) Foster y. PwrTcer, 8 Ch. D. XXVIII. it. 6, 9. 147. 374 PROCEEDINGS BY AND AGAINST PARTICULAR PERSONS. or firm and place of business of the principal solicitor or solici- tors (z). The fee on issuing the subpoena is 2s. @d. on the lower and 5s. on the higher scale, payable by a stamp impressed upon the prcecipe (a). If the, party served does not appear tp the subpoena within the time limited, the judgment will be made absolute upon an ex parte motion supported by evidence of the infant having attained full age, of service of the subpoena, and by the Kegis- trar's certificate of no cause shown (6). fe) Cons. Ord. XXVIII. r. 1. 1876, Se.hed. (o) Ord. as to Court Fees, Oct., (5) Dan. Pr. 155. 1875, Sched. ; Ord. as to Fees, April, CHAPTER II. LUNATICS. (1.) Wien Plaintiffs (a). A lunatic must sue by the committee of his estate, if he By whom has one ; if he has not, or if the committee has an interest in ?°o°" n( . the subject matter of the action adverse to that of the lunatic, the action must be brought by the lunatic's next friend (b). And no action can be brought by or on behalf of a lunatic without the committee of his estate, if he has one, being made either a plaintiff or defendant (c). The committee should, before bringing an action on behalf of Sanction the lunatic, obtain in the matter of the lunacy, the sanction of the ° sue ' Lord Chancellor or the Lords Justices of Appeal, which is done by laying a proposal before one of the Masters in Lunacy, who makes his report thereon, upon which an order is made by the Lord Chancellor or the Lords Justices of Appeal (cc). If an action is brought in the name of a lunatic, without Where either a committee or next friend, the defendant may move to J ctlon ^ 7 J brought dismiss the action ; or, if it appears upon the face of the state- without ment of claim that the plaintiff is a lunatic so found by inqui- comml t tee . r J ' or next sition, he may take advantage of the defect by demurrer, or by friend, his statement of defence, if it do not so appear (d). If a plaintiff is found a lunatic, and a committee is appointed Where after the commencement of the action, an order should be P lai °* lfl lunatic (a) For forms, see Daniell's Forms, usually makes orders in lunacy pending 3rd ed. 55 — 58. matters ; and since the Judicature the action. (6) Ord. XVIII. As to appoint- Acts the Lord Chancellor has made ment, removal, &c, of next friend, no orders in lunacy ; although, of see Section 1 of the preceding Chapter ; course, he is still the supreme autho- the practice being the same as in the rity in lunacy matters. See 36 & 37 case of the next friend of an infant. Vict. c. 66, s. 17 (3) ; 38 & 39 Vict. (c) FvUer\.Lamce,lQ&. inCh. 19. c. 77, s. 7. (cc) In practice one Lord Justice (d) Dan. Pr. 81, 83. 376 PROCEEDINGS BY AND AGAINST PARTICULAR PERSONS. obtained for the committee to carry on the proceedings ; and if during the action the committee dies or is removed, and a new committee is appointed, a similar order should be obtained. If the plaintiff's solicitor neglects to obtain an order in either of such cases, to carry on the proceedings, the defendant may, before judgment, move to dismiss the action, unless the order is obtained within a limited time ; after judgment the defendant may obtain the order himself (e). Service of writ of summons. How lu- natic to defend. New com- mittee. (2.) When Defendants (/). When a lunatic is a defendant to an action, service of the writ of summons on the committee of such lunatic will, unless the Court or judge otherwise orders, be deemed good service on such defendant (g). A lunatic must defend by the committee of his estate, if he has one ; if he has not, or if the committee has an interest in the subject matter of the action adverse to that of the lunatic, the lunatic must defend by guardian ad litem (h). Before appli- cation for appointment of a guardian ad litem an appearance should be entered on behalf of the lunatic. If, during the action, the committee should die, or be re- moved, and a new one appointed, an order should be obtained to carry on the proceedings against the new committee (j). (c) Ord. L. ; Daniell's Forms, 3rd ed. 55. ( / ) For forms, see Daniell's Forms, 3rd ed. 58—61. (g) Ord. IX. r. 5. (A) Ord. XVIII.' As to appoint- ment, removal, &c, of a guardian ad litem, see Section 2 of tbe preceding Chapter ; the practice being the same as in the' case of a guardian ad litem to an infant. (i) See Part I. Chapter I. Section '4 (P. 11). CHAPTER III. PERSONS OF UNSOUND MIND NOT SO FOUND BY INQUISITION. (1.) When Plaintiffs (a). Persons of unsound mind not so found by inquisition sue as Sue by plaintiffs by their next friend (b). friend. If an action has been brought in the name of a person who Dismissal was, at the time, in a state of mental incapacity, the defendant of actl0n - may move to dismiss it ; but otherwise if the plaintiff becomes imbecile after he has commenced an action in "the ordinary way (c). Where an action is brought by a next friend in the name of a person alleged to be of unsound mind, but who is really of sound mind, the action will on his application be ordered to be dismissed with costs against the next friend (d). (2.) When Defendants (e). When a person of unsound mind not so found by inquisition Service of is a defendant to the action, service of the writ of summons on ™ ° „ the person with whom the person of unsound mind resides or under whose care he or she is, will, unless the Court or judge otherwise orders, be deemed good service on such defen- dant (/). Persons ot unsound mind defend by their guardian ad Guardian litem (g). Before application for appointment of a guardian a ^f ttem - (a) -For forms, see Daniell's Forms, infant. 3rd ed. 62—64. (c) Wartndby r. Wartnaby, Jac, (5) Ord. XVIII. As to the effect 377; Blake v. Smith, Tounge, 596. on an "action by a next friend of the (d) Palmer v. Walesby, 3 Ch. 732. subsequent appointment of a com- (e) For forms, see Daniell's Forms, mittee, see BeaU v. Smith, 9 Ch. 85. 3rd ed. 64— 73. As to appointment, removal, &c., of (/) Ord. IX. r. 5. next friend, see Section 1 of Chap- (g) Ord. XVIII. As to appoint- ter I. ; the practice being the same as ment, removal, &c, of a guardian ad in the case of the next friend of an litem, see Chapter I. Section 2 ; the 378 PROCEEDINGS BY AND AGAINST PARTICULAR PERSONS. Applica- tion by plaintiff that a guardian Service of notice of judgment. ad litem, an appearance should be enter ed on behalf of the person of unsound^mind. Where no appearance has been entered to a writ of summons for a defendant who is a person of unsound mind not so found by inquisition, the plaintiff may apply to the Court or a judge for an order that some proper person be assigned guardian of such defendant, by whom he may appear and defend the action. But no such order is to be made unless it appears on the hear- ing of such application that the writ of summons was duly served, and that notice of such application was after the expira- tion of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the appli- cation, served upon or left at the dwelling-house of the person with whom or under whose care such defendant was at the time of serving such writ of summons (h). The application under this rule is by motion, supported by affidavit showing the service of the writ of summons, the non-appearance of the person of unsound mind, and service of notice of the applica- tion in the manner required by the rule. If, however, an appearance has been entered for the person of unsound mind, but his solicitor has neglected to obtain the appointment of a guardian ad litem, the plaintiff may apply by motion for such an appointment, and notice of the motion may be served on such solicitor. The application must be supported by an affi- davit showing that an appearance has been entered but no guar- dian ad litem appointed. The solicitor to the Supreme Court is usually appointed if no relative or other proper person will undertake the defence (t) ; and the Court usually directs the plaintiff to pay his costs and add them to his own (J). Where it is necessary to serve notice of a judgment or order upon a person of unsound mind not so found by inquisition, an ex parte application must be made to the judge by summons for directions as to the manner of service. Such application must be supported by affidavit, which must show, as far as the applicant is able : — Where, and under whose care, the person of unsound mind is residing, and at whose expense he is main- tained ; who are his nearest relations ; and that the relations practice being the same as in the case of a guardian ad litem of an infant. (A) Ord. XIII. i-. 1. (i) Thomas v. Thomas, 7 Beav. 47 ; Sheppard v. Harris, 10 Jur. 0. S. 24. (j) Cons. Ord. XL. r. 4 ; Harris v. Hamlyn, 3 De G. & S. 470. PERSONS OF UNSOUND MIND NOT SO FOUND. 379 or persons upon whom it is proposed to serve the notice, have no interest in the matters in question, or, if they have, the nature of such interest, and that it is not adverse to the interest of the person of unsound mind (h). A memorandum must be indorsed on the notice of the judgment or order, giving the person of unsound mind or other the person served therewith, as the case may be, notice that from the time of service he will be bound by the proceedings in the cause in the same manner as if he had been originally made a party ; and that he may, by an order of course, have liberty to attend the proceedings, and may, within one month after service, apply to the Court to ■ add to the judgment or order (I). A person of unsound mind not so found by inquisition who has been served with notice of a judgment or order and desires to attend the proceedings thereunder, must obtain leave to do so, and must then attend by his guardian ad litem. The application is by motion or petition of course, supported by affidavit (m). In practice, the applications for leave to attend the proceedings, and for the appointment of a guardian are combined in one (n). If a guardian ad litem dies pending the proceeding a new one Appoint- must be appointed : the application for the purpose is made by ment rr > er r r j new guar- motion or petition of course, and must be supported by evidence dian ad of the death of the former guardian, and of the fitness of the lttem ' \ proposed guardian, and also by evidence of the continued mental incapacity of the defendant (o). All orders appointing guardians ad litem must be left at the Entry of Central Office for entry. Where the fact of the defendant's infirmity is disputed, or an Motion to order appointing a guardian ad litem has been irregularly ^Vap- obtained by the defendant, the plaintiff may move on notice pointing to discharge the order; and the defendant on his recovery S uarcian - may apply, by motion on notice to the plaintiff and to the guardian, that the order assigning the guardian may be dis- charged from the date of the order on such motion (p). (k) Cons. Ord. VII. r. 5 ; Kegs. Old. VII. r. 6 ; Ord. XVI. r. 1. 8th Aug., 1857, r. 7. (») Dan. Pr. 363. (Z) Cons. Ord. XXIII. r. 20. (o) Id. 159, 160. (to) 15 & 16 Viot. c. 86, ». 42 (8) ; (p) Id. 161 ; Blyth v. Green, W. 30 & 31 Vict. c. 40, . 9 ; Cons. N. (1876), 214. CHAPTER IV. MARRIED WOMEN. When married woman may sue in her own Where action brought ■without consent of married woman. When (1.) When Plaintiffs (a). A married woman may bring an action in the Chancery Division in her own name in the following cases: — (1.) If her husband is civilly dead, or (2.) is undergoing a sentence of transportation or penal servitude, or (3.) is an alien enemy. (4.) After a decree for judicial separation. (5.) When she has obtained a protection order under 20 & 21 Vict. c. 85. (6.) Where the action is brought to recover property by the Married Women's Property Act, 1870 (33 & 34 Vict. c. 93), declared to be her separate property. (7.) Where the action is brought to recover property belonging to her before marriage, and which her husband has by writing under his hand, under the same Act, agreed with her shall belong to her after marriage as her separate property. (8.) Where the Court or a judge has, under Ord. XVI. r. 8, given her leave to sue without her husband and without a next friend. In other cases the husband must be a co-plaintiff, or the wife must sue by her next friend in the same manner as an infant (6) ; except that her consent is required before the action is commenced. If an action should be brought on behalf of a married woman without her consent, she may apply by special motion supported by affidavit to have it dismissed with costs to be paid by the person who has brought the action. Where the wife sues by her next friend, the husband must be made a party, either as co-plaintiff or defendant, and he is (o) For forms, see Daniell's Forms, 3rd ed. 74—81. (5) Ord. XVI. r. 8. I. Section 1. See Chapter MARRIED WOMEN. 381 usually made a defendant (c). In an action to recover the husband wife's separate estate he should be made a defendant and not ne < 5 f ssar y 1 party, a co-plaintiff (d). The next friend of a married woman need not be a relation, who may but he must be a person of substance, because he is liable to ** ne , xt ■ • • Tn. mend, costs ; and m this respect there is a material difference between the next friend of a feme covert and of an infant ; for any per- son may bring an action in the name of an infant, but the suit of a feme covert is substantially her own suit, and her next friend is selected by her. In the former case, the Court does not require that the next friend should be a person of substance, because if the friends of an infant are poor, the infant might, by such a rule, be deprived of the opportunity of asserting his right ; but in the case of a feme covert, as the object for which a next friend is required is, that he may be answerable for the costs, the Court expects that the person she selects to fill that office should be one who can pay the costs, if it should turn out that the proceeding is ill-founded ; and, therefore, if the next friend is in insolvent circumstances, it will order the suit to be stayed until he gives security for costs (e). Married women may by leave of the Court or a judge sue Married without their husbands and without a next friend, on giving w ° man such security (if any) for costs as the Court or a judge may for leave to / j \ sue alone, require (/). If the married woman cannot obtain a person of substance to Where act as her next friend she may apply by motion ex parte, sup- suit ^le ported by an affidavit of the facts and certificate of counsel that cannot be the case is proper for relief, for leave to proceed in formd obtained. pauperis. As to practice in case a female plaintiff marries after action Marriage brought, see Part I., Chapter I., Section 4 (p. 11). JS" Where a next friend dies, leave to appoint a new next friend Wew next may be obtained on motion or petition of course. friend. Where, however, the married woman desires to change her next friend, she should apply by motion or summons on notice to the defendants for leave to do so. It is in the discretion of the Court to grant or refuse the application ; and it will be (c) Wake v. Parker, 2 Keen, 59 ; 830. England v. Downs, 1 Beav. 96 ; (e) Dan. Pr. 104. As to security Davis v. Prout, 7 Bear. 288. for costs, see Part VI. Chapter XIII. (d) Roberts v. Evans, 7 Ch. D. (/) Ord. XVI. r. 8. 382 PROCEEDINGS BY AND AGAINST PARTICULAR PERSONS. Entry of orders. refused when there is reason to believe that the defendant's security for costs will be thereby prejudiced. If the order be made, the new next friend is usually required to give security to answer past costs, and to abide by the order of the Court as to future costs ; and the retiring next friend may be required to give security for costs incurred up to the time of the change (g). If, in case of the death of a next friend, the plaintiff neglects or refuses to obtain the appointment of a new next friend, the defendant may apply by motion upon notice for an order for the plaintiff to name a new next friend within a limited time, or that in default the action may be dismissed with costs (/a). All orders appointing next friends must be left at the Central Office to be entered. Husband must usu- ally be joined. Exceptions. Service of writ of summons. (2.) When Defendants (i). As a general rule the husband must be made a co-defendant to every action brought against his wife ; even where the wife is sued in respect of her separate estate ; and the law has not been altered as to this either by the Married Women's Property Act, 1870, or by the Judicature Acts and Rules (_;'). The general rule admits, however, of the following exceptions : — (1.) Where the husband is himself the plaintiff, or (2.) is civilly dead, or (3.) is undergoing a sentence of transportation or penal servitude, or (4.) is an alien enemy. (5.) Where there has been a decree for judicial separation. (6.) Where the wife has ob- tained a protection order, under 20 & 21 Vict. c. 85. (7.) Where the action is brought to recover a debt of the wife contracted before the marriage and for which under the Married Women's Property Act, 1870 (33 & 34 Vict. c. 93), and the Married Women's Property Act, 1874 (37 & 38 Vict. c. 50), the husband is not liable to be sued. Where husband and wife are both defendants to the action, service of the writ of summons on the husband will be deemed (g) Dan. Pr. 105, 106, citing 100. Jones v. Fawcett, 2 Phil. 278 ; Lowley v. Ealpen, Bunb. 310 ; Witts v. Campbell, 12 Ves. 492 ; Payne v. Little, 14 Beav. 647 ; 16 Bear. 563. (h) Barlee v. Bovine, 1 S. & S. (i) For forms, see Daniell's Forms, 3rd ed. 82—85. (j) Hancocks v. Lablache, 3 C. P. D. 197. And see Atwood v. Chiches- ter, 3 Q. B. D. 722. MARRIED "WOMEN. 383 good service on the wife, but the Court or a judge may order that the wife shall be served with or without service on the husband (k). Where husband and wife are joined as defendants they must Defence. put in a joint defence, unless either of them obtains leave to put in a separate defence ; and if a separate defence is put in without leave, the plaintiff may make application by motion on notice to have it struck out. The Court or a judge may give leave to a married woman to Married defend without her husband on giving such security (if any) for may ap pi y costs as the Court or a judge may require (l). Under the f °r kave former practice such leave was given where the wife claimed an a i one , adverse interest (m), or was living apart from her husband (n), or where he was mentally incompetent to defend (o), or where she disapproved of his intended defence ( p). The order is obtained on motion or petition of course. If the husband wishes to put in a separate defence he may Separate apply for leave to do so, by motion on notice, supported by an j, b nce 1 - affidavit of the circumstances (pp). If the husband has put in a defence separately from his wife Plaintiff's under an order so to do ; or without an order, and the plaintiff P rooee) See Ord. XXXVII. t. 2. (h) Lush & Lopes, JJ., 24th 40G PROCEEDINGS IN THE JUDGES CHAMBERS. Right to use pro- ceedings in evidence. Exhibits. Alterations in veriiied accounts. examiner (q) ; or before commissioners (r) ; or before the Chief Clerk («). The right to use the proceedings in the cause, as evidence at Chambers, is subject to the same rules and restrictions as govern the admissibility of similar evidence before the Court therefore, evidence will not be •admissible merely because it appears on the decree to have been taken at the hearing of the cause : for the evidence may be admissible against one defen- dant, or for one purpose, and not against another defendant, or for another purpose (t). Affidavits which have been previously made and read in Court, upon any proceeding in a cause or matter, may be used in Chambers (u) ; and all evidence taken at the hearing of any cause may be used in any subsequent proceeding in the same cause (v). If such affidavits are used in Chambers the wit- nesses may be cross-examined thereon (w). A party intending to use any affidavit on any proceeding in Chambers must give notice to the other parties concerned of his intention in that behalf (x). An undertaking not to use an affidavit at the hearing does not preclude it from being used in Chambers (p). Accounts, extracts from parish registers, particulars of credi- tors' debts, and other documents referred to by affidavit, are not to be annexed to the affidavit, or referred to in the affidavit as annexed, but are to be referred to as exhibits (z). Every certificate on an exhibit referred to in an affidavit, signed by the commissioner or officer before whom the affidavit is sworn, must have the short title of the cause or matter (a) ; and every alteration in an account verified by affidavit, to be left at Chambers, is to be marked with the initials of the commissioner or officer before whom the affidavit is sworn, and such altera- tions are not to be made by erasures with the knife or other instrument (6). (g) 15 & 16 Vict. c. 86, s. 40 ; Cast v. Poyser, 3 S. & (J. 369 ; Stebbing v. Atlee, 26 L. J. (Ch.) 255. (r) 15 & 16 Vict. c. 86, * 28. (s) 15 & 16 Vict. c. 80, ». 30 4 Cons. Ord. XXXV. rr. 4, 30 ; Ord. 5th Feb., 1861, r. 15. And see Ord. XXXVII. 1'. 4. (0 Dan. Pr. 1058, citing Hand- ford v. Handfard, 5 Hare, 212. («) Cons. Ord. XXXV. r. 28. (v) Ord. 5th Feb., 1861, r. 15. (to) Spittle v. Hughes, 11 Jur. 151. (x) Cons. Ord. XXXV. r. 27. iy) Jenner v. Morris, 10 W. R. 640. (2) Regs., 8th Aug., 1857, i-. 11. (a) Id. r. 12. (4) Id. 1. 10. GENERAL COURSE OF PROCEEDINGS IN CHAMBERS. 407 A Chief Clerk's summons may when necessary or required Chief contain the names of three witnesses. s summons. A Chief Clerk's summons may be varied in form, as the cir- cumstances of the case may require (c) ; so that a party may be summoned to produce documents, without the necessity of a subpoena duces tecum. Where the Chief Clerk is directed by the judge to examine Examina- any witness, the practice and mode of proceeding are the same ^J^^gg as in the case of the examination of witnesses before the exa- before miner (d), subject to any special directions which may be given ™ j* k in any particular case (e). 'The witness is entitled, after he is sworn, to take the opinion of the judge as to whether he shall be examined before the judge, or the examiner, instead of before the Chief Clerk (/). The original examinations and depositions of parties and witnesses, taken by or before the Chief Clerk, authenticated by his signature, are transmitted by him to the Central Office, to be there filed ; and any party to the suit or proceeding may have a copy thereof, or of any part or portion thereof, upon payment of the proper fee (g). The Chief Clerk may, if so directed by the judge, take the Interroga- examination of a party or witness upon interrogatories (h). The torles - interrogatories are prepared by the party on whose behalf the examination is to be taken, and are usually drawn or settled by counsel A copy is left at Chambers ; an appointment to settle is obtained ; and notice thereof is given to the party to be in- terrogated, or to his solicitor. At such appointment or an adjournment thereof, the interrogatories are gone through and settled; and are then written, in duplicate, on paper of the same description and size as that on which proceedings are printed ; and the Chief Clerk's signature is obtained to a memorandum of allowance in the margin thereof. The inter- rogatories so allowed are left at Chambers ; and notice thereof is given by the party examining to the examinant. The ex- aminant should then obtain at Chambers the duplicate of the interrogatories ; and prepare and file his answer and examina- (c) Cons. Ord. XXXV. r. 4. Co., 5 W. R. 794 ; He Electric Tel. \d) See p. 109, et seq. Co. of Ireland, 24 Beav. 137. («) Cons. Ord. XXXV. r. 30. (g) Cons. Ord. XXXV. r. 31. (/) Hayward v. Hayward, Kay, (h) 15 & 16 Vict. c. 80, s. 30. App. 31 ; Re London & County Ass. 408 PKOCEEDINGS IN THE JUDGES' CHAMBERS. Order for attendance for cross- examina- tion. tion thereto, within the "time fixed by the Chief Clerk when the interrogatories were settled ; or, where no time has been fixed, with due diligence. If the examination is not filed in due course, the party examining may apply by summons, which must be served on the examinant, that the examination may be filed by a limited time. The order, when made, should be drawn up, entered, and served. On the other hand, the ex- aminant may apply by summons, which must be served on the party examining, for further time to put in the examination. The examination is usually drawn or . settled by counsel. It must be written on paper of the same kind as the interroga- tories ; and must' be sworn. It is then annexed to the dupli- cate of the interrogatories, and filed therewith at the Central Office ; and notice of filing should be given on the same day to the party examining : who should then procure an 1 office copy of the examination ; and, if not satisfied therewith, obtain at Chambers an appointment to consider the sufficiency thereof, and serve notice thereof on the examinant. The ex- amination will then be compared, at Chambers, with the in- terrogatories ; and the sufficiency or insufficiency thereof de- termined (i). The Court or a judge may, on the application of either party, order the attendance for cross-examination of a person who has made an affidavit to be used on the hearing of any summons (J). The notice must be given within fourteen days next after the filing of the affidavit (k) ; and the party to whom the notice is given may compel the attendance of the witness for cross- examination in the same manner as he might compel the attendance of a witness to be examined (I). (6.) Orders made in Chambers (m). May be The judge may direct any orders made at " Chambers to be directed to drawn up by the Registrar, in like manner as orders made in be drawn '' up by Re- gistrar. (i) Dan. Pr. 1061—1063. \j) Ord. XXXVII. r. 2. \h) Ord. as to Evid. 5th Feb., 1861, t. 19. On a proceeding in Chambers after judgment it is not essential that the notice should be given within the fourteen days ; Sough v. Rankin, M. R. at Cham- bers, 14th June, 1877. (J) Ord. as to Evid. 5th Feb., 1861, i: 19. (m) For forms, see Daniell's Forms, 3rd ed. 497, 498. GENERAL COURSE OF PROCEEDINGS IN CHAMBERS. 409 open Court («) : for which purpose, the Registrar, when required, must attend the judge when sitting at Chambers, in such manner as may be found convenient, and as may be directed by any General Order (o). In practice only orders of a simple kind are drawn up at Chambers (p). All orders made in Chambers, and drawn up by the Chief Entry. Clerk or Registrar, must be entered in the same manner, and in the same office, as orders made in open Court are entered (§) ; and every order made by a judge in Chambers may be enforced How en- in the same manner as a. judgment to the same effect (r). forced. On drawing up and entering judgments, decrees or decretal Fees. orders made upon originating summonses at Chambers the fee is £1 on the higher and 10s. on the lower scale ; and 5s. on the higher and 3s. on the lower scale in respect of other orders, payable by a stamp impressed upon or adhesive to the order (s). Every order made in Chambers may be set aside or dis- Setting charged upon notice by the judge sitting in Court (t). An aside application for a re-hearing in Court must be made within twenty-one days, unless the judge extend the time ; and an appeal lies from such re-hearing to the Court of Appeal within Appeal, twenty-one days therefrom (u). (7.) Allowance pending Litigation (v). Wherever any real or personal property forms the subject of Power of any proceedings, and the Court is satisfied that the same is ^ t0 more than sufficient to answer all the claims thereon which orders for ought to be provided for in such suit, it may, at any time after the commencement of the proceedings, allow to any of the parties interested 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 annual income thereof, up to such time as in) See Part I., Chapter 10, Sec- 1875, Sched. ; Ord. as to Fees, tion 2 (p. 153). April, 1876, Sched. (0) 15 & 16 Vict. c. 80, s. 14. (t) 36 & 37 Vict. c. 66, a. 50. (p) Dan. Pr. 1066. (u) Dickson v. Harrison, 9 Ch. D. (2) Cons. Ord. XXXV. r. 32. 243. And generally, as to appeals See Part I., Chapter 10, Section 2 from the judge in Chambers, see (p. 153). p. 202. (r) Ord. XLII. r. 20. (v) For form of summons, see (s) Ord. as to Court Fees, Oct., Daniell's Forms, 3rd ed. 498. allowance. 410 PROCEEDINGS IN THE JUDGES' CHAMBERS. the Court shall direct ; and may, for that purpose, make such orders as may appear to be necessary or expedient (w). The application is by summons ; and it will not usually be granted unless there is some pressing, reason for it, and the title of the parties clearly appears (#). (mi) 15 & 16 Vict, c 86, s. 57. 362 ; Rowley v. Burgess, 2 W. E. (x) BenOey v\ Craven, 1 W. E. 652. CHAPTER II. ADMINISTRATION OF ESTATES ON SUMMONS («). Ant person claiming to be a creditor, or a specific, pecuniary, By whom or residuary legatee, or the next of kin, or some or one of the obtalnable - next of kin, of a deceased person, may obtain, as of course, without any preliminary proceedings, a summons from the Master of the Eolls, or any of the Vice-Chancellors, requiring the executor or administrator, as the case may be, of such deceased person, to attend before him at Chambers, for ths purpose of showing cause why an order for the administration of the personal estate of the deceased should not be granted (6). And where the whole of the real estate of a deceased person is Real by devise vested in trustees, who are by the will empowered to es a e " sell such real estate, and authorised to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate, any person claiming to be a creditor of such deceased person, or interested under his will, may, in a similar manner, obtain a like summons requiring the trustees to show cause why an order for the administration of his real estate should not be made (c). A summons for administration can only be issued in simple Where cases (d). It is not applicable where questions of construction notapp 1 };. upon a written instrument are likely to arise (e) ; nor where the cable, defendant is sought to be charged for wilful default (/). It is sufficient, under s. 47, if the trustees are empowered to Oases with- (a) For forms, see Daniell's Forms, 512. 3rd ed. 499 — 503. (e) Acaster v. Anderson, 19 Beav. (6) 15 & 16 Vict. c. 86, s. 45. 161. (c) Id. s. 47. (/) Partington v. Reynolds, 4 \d) Bump v. OreenhUl, 20 Beav. Drew. 253. 412 PROCEEDINGS IN THE JUDGES' CHAMBERS. in s. 47 of 15 & 16 Vict. o. 86. Issue, &c, of sum- mons. Operation of sum- mons as a lis pen- dens. Service out of jurisdic- tion. Evidence in support of sum- mons. sell the realty, even if it is not expressly devised to them (g). And where the sale was to be delayed for five years it was held that an application for administration could be made by sum- mons (h). A devisee of real estate, subject to payment of debts, is a trustee within s. 47 (i). As to the preparation, issue, and service of the summons, see Section 3 of the preceding Chapter. The filing of the duplicate of the summons has the same effect with respect to lis pendens as the issue of a writ of sum- mons (j). If it is desired to serve the summons out of the jurisdiction, application for leave must be made by summons, supported by affidavit, showing the case to be of such a nature that if an action had been brought such service might properly have been allowed (jj). An application by administration summons should be sup- ported by evidence proving the plaintiff's title to sue, and that the defendant is the legal personal representative of the deceased person, where the application is confined to the personal estate ; and where it extends to the real estate, it must also be shown that the whole of the real estate is vested in the defendant, and that he is by the will empowered to sell and authorised to give receipts. In cases within the 23 & 24 Vict. c. 145, s. 29, the absence of an express power in the will authorising trustees to give receipts would seem to be immaterial, where they have by the will a power of sale. The fact that the defendant is the legal personal representative, or trustee of the real estate, of the deceased person should be established by production of the probate or letters of administration, or by other primary evidence of the grant. The plaintiff should, therefore, either when he serves the administration summons, or in due time before its return, serve a notice on the defendant, requiring him to produce such probate or letters at the hearing of the sum- mons. If the defendant fails to produce the same, the order will not be made till an official copy under seal of the whole or (g) Colman v. Turner, 10 Eq.. 230. (h) De la Salle v. Moorat, 11 Eq. 8. (*) Ogden v. Lowry, 4 W. R. 156. (?) See 15 & 16 Vict. o. 86, ». 46. The summons may be registered as a lis pendens in the same way as a writ. See p. 31. (Jj) Be Cohen, Alcan v. Cohen, 1 De G. J. & S. 398. ADMINISTRATION OF ESTATES OX SUMMONS. 413 of the material part of the will, or an official certificate of the grant of the letters of administration is produced (k). The defendant must, before he can be heard in Chambers, Appear- whether in person or by his solicitor, enter an appearance at anoe r J ' rr summons. the Central Office, and give notice thereof (I) ; and, if he be (j uai .^iau under disability, a guardian ad litem must be appointed for ad litem. him (m). At the hearing of the summons, upon proof by affidavit of ^ rde . r on the due service thereof, or on the appearance in person, or by his solicitor or counsel, of the executor or administrator, or of the trustee of the real estate, as the case may be, and upon like proof of such other matters as the judge may require, the judge in his discretion may make the usual order for the administra- tion of the estate of the deceased, with such variations and in- quiries, if any, as the circumstances of the case may require, and the order so made will have the force and effect of a decree to the like effect made upon the hearing of a cause between the same parties ; but the judge has full discretionary power to grant or refuse such order, or to give any special directions touching its carriage or execution, and, in the case of applica- tion for any such order by two or more different persons, or classes of persons, to grant the same to such one or more of the claimants, or of the classes of claimants, as he may think fit ; and, if the judge shall think proper, the carriage of the order may subsequently be given to such party interested, and upon such terms, as the judge may direct (n). If the order is refused on the merits the plaintiff may appeal Course from the decision ; but cannot commence an action for adminis- or( j er tration (o). refused. On the defendant's submitting to pay the plaintiff's claim stay of and costs, the proceedings will, as in other cases, be stayed. P r °°eed- The defendant may either make the submission at the hearing payment of the summons, or he may take out a summons for that purpose of °l alm - before or after the hearing (p). The practice as to service of notice of judgment, and obtain Service of (&) Dan. Pr. 1073, 1071. («) 15 & 16 Vict. c. 86, ss. 45, (Z) Cons. Ord. XXXV. r. 9. 47. (m) Osbaldiston v. Crowiher, 1 S. (o) Thompson v. Thompson, 11 & Q. App. 12. As to appointment W. K. 797. of guardian ad litem, see p. 370. (p) Dan. Pr. 1075. 414 PROCEEDINGS IN THE JUDGES' CHAMBERS. ■ notice of m g leave to attend the proceedings, applies also to matters order originated by administration summons (q). Stay of If an action for administration is brought after an order has action after j, een ma( j e upon an administration summons, the action will be order made r -,•*■, • on sum- stayed, unless further relief can be obtained in the action than upon the summons (r). (q) See p. 171. B,. 235 ; Coleman v. Tvrner, 10 Eq. (r) Ritchie v. Mumberston, 17 230 ; De la Salle v. Moorat, 11 Jur. 756 ; Rump v. OreenhiU, 20 Eq. 8. Beav. 512 ; Pigott v. Young, 7 W. mons. CHAPTEE III. PROCEEDINGS UNDER JUDGMENTS AND ORDERS. (1.) Conduct of Cause or Proceedings (a). The plaintiff usually has the conduct of the proceedings, Plaintiff and in case of more suits than one, the plaintiff in that first jj^j ^ instituted (6) ; but if sufficient reason appear, e. g., if the conduct. plaintiff be guilty of delay or other misconduct, the conduct of the proceedings will be given to some other party (c). Where proceedings are necessary against persons who have Executor had dealings with a testator whose estate is being administered, £Twg n . the executor has the right to the conduct of the proceedings in ciaries. preference to the beneficiaries, unless misconduct on the part of the executor is clearly proved, or it is made out that the course of justice will be impeded thereby (d). Whenever the trusts of any will or settlement are being Trustees administered, and a sale is ordered of any property vested in ^J^ t0 the trustees of such will or settlement upon trust for sale or sale of with power of sale by such trustees, the conduct of such sale is realt y- to be given to such trustees unless the judge shall otherwise direct (e). If the conduct of the proceedings is taken from one party Effect of and given to another, the latter stands in the place of the tra ^j^ former, and may inspect and take copies of the documents in his possession or that of his solicitor (/). (2.) Carrying in Judgment or Order. Whenever proceedings are to be taken at Chambers under a Copy judg- (o) For forms, see Daniell's Forms, 528 ; Cons. Ord. XXXV. r. 23. 3rd ed. 508 — 510. (d) Longbourne v. Fisher, 40 L. (6) Belcher v. Belcher, 13 W. H. T. 124. 913. (e) Rule 7 of March, 1879. (c) Re Hutchinson, 1 Dr. & Sm. (/) Bennett v. Baxter, 10 Sim. 27 ; Naylor v. Smith, 15 W. K. 417. 416 PKOCEEDINGS IN THE JUDGES CHAMBEES. ment or order to he left at Chambers. Directions to be an- swered in Chambers are to be numbered consecu- tively in .. judgment or order. Note of solicitors' names — — and copy writ of summons must be left at Chambers. Issue and service. judgment or order, the party prosecuting the same muBt leave a copy at the judge's Chambers, and certify the same to be a true copy of the judgment or order as passed and entered (7i). If the party entitled to prosecute a judgment or order, directing accounts or inquiries, does not bring such judgment or order into Chambers within ten days after the same has been passed and entered, any other party to the cause or matter may do so ; and will have the prosecution of the judgment or order, unless the judge otherwise directs (i). For this purpose, such other party obtains an office copy of the judgment or order, and leaves at the Chambers a copy thereof, certified by him to be a true copy of such office copy (_/). The copy of the judgment or order left at the Chambers must be written on foolscap paper, bookwise (k). r-> In drawing up the judgment or order, care should be taken that every account, inquiry, and direction to be answered at Chambers is numbered consecutively, and that the other direc- tions are not numbered (I). The reason for this is that the answers in the Chief Clerk's certificate may be numbered to correspond. At the time the judgment or order is left at Cham- bers, a note, stating the names of the solicitors for all the parties, and showing for which of them tbey are concerned, and a [copy of the writ of summons], if the matter has been instituted by writ of summons, must also be left (m). -^ (3.) Summons to Proceed (n). Upon the copy of the judgment or order being left at Cham- bers, a summons to proceed with the accounts or inquiries thereby directed must be issued (o) ; and must be served upon all the parties to the cause or matter, whether they have appeared or not ( p) ; but a person who has been served with notice of the judgment, and has not obtained leave to attend the proceedings need not be served (§•). (/,) Cons. Ord. XXXV. r. 15. For form of certificate of verification, see Daniell's Forms, 3rd ed ; 510. (i) Ord. XXXV. r. 2*2. (j) Dan. Pr. 1084. (A) Regs., 8th Aug., 1857, v. 17. I) Id", i. 4. (m) Id. rr. 5; 6. (n) For forms, see Daniell's Forms, 3rd ed. 510, 511. (o) Cons. Ord. XXXV. r. 16. (p) King v. Bryant, 3 M. & 0. 191 ; Golden v. Newton, Johns. 720. (q) Green v. Measures, W. N. (1866), 122. PROCEEDINGS UNDER JUDGMENTS AND ORDERS. 417 (4.) Directions as to Prosecution. Upon the return of the summons to proceed, the judge, if Judge s satisfied by proper evidence that all necessary parties have been ^returti served with notice of the judgment or order, will thereupon of sum- give directions as to the manner in which each of the accounts ^"ggj and inquiries is to be prosecuted, the evidence to be adduced in support thereof, the parties who are to attend on the several accounts and inquiries, and the time within which each pro- • ceeding is to be taken ; and a day or- days may be appointed for the further attendance of the parties, and all such directions may afterwards be varied or added to as may be found neces- sary (s). The portion of the rule which provides that the judge must be satisfied as to service of the notice on the parties is in practice departed from, to the extent at least of directing advertisements to be published, and fixing the times for the accounts to be brought in, and the inquiries answered (<). Where any persons have been served with notice of the judg- Where ment, a copy of the Master of the Supreme Court's certificate j^elf of his entry of the memorandum of the service, certified to be served a true copy by the solicitor who lodged the memorandum with ^ ^J,. 1 ce him, and, if they have obtained liberty to attend the proceed- ment. ings, of the order giving such liberty, certified by their solicitor, must be left at Chambers (w). (5.) Parties entitled to Attend (v). In general, all parties beneficially interested, either in the General estate or in the fund in question, are considered entitled to attend on those proceedings which may affect their interests, or increase or diminish their proportion of the fund (w) ; but where any party appears upon any application or proceeding at Court or in Chambers in which he is not interested, or upon which, according to the practice of the Court, he ought not to attend, he is not to be allowed any costs of such appearance unless the Court or Judge shall expressly direct such costs to (*) Cons. Ord. XXXV. r. 16. (v) For forms, see Daniell's Forms, (0 Dan. Pr. 1086. 3rd. ed. 512, 513. (») Kegs., 8th Aug., 1857, r. 8. {w) Dan.Pn 1086. E E rule. 418 PKOCEEDINGS IN THE JUDGES* CHAMBERS. Summons for leave to attend. Classes of parties may be required to be re- presented by one solicitor. Parties entitled to take copies of evi- dence. Certificate for soli- citors' at- tendance Judge may direct par- be allowed (x). Persons not parties, or quasi parties, who can show sufficient reason, may apply by summons for an order for leave to attend. The summons must be served on the parties to the cause, and should be supported by an affidavit of the facta. The order is usually made on terms as to the costs of such attendance (xx). Where, upon the hearing of the summons to proceed, or at any time during the prosecution of the judgment or order, it appears to the judge, with respect to the whole or any portion of the proceedings, that the interests of the parties can be classified, he may require the parties constituting each or any class to be represented by the same solicitor ; and where the parties constituting such class cannot agree upon the solicitor to represent them, the judge may nominate such solicitor for the purpose of the proceedings before him ; and where any one of the parties constituting such class declines to authorise the solicitor so nominated to act for him, and insists upon being represented by a different solicitor, such party must personally pay the costs of his own solicitor of and relating to the pro- ceedings before the judge, with respect to which such nomina- tion has been made, and all Buch further costs as shall be occasioned to any of the parties by his being represented by a different solicitor from the solicitor so to be nominated (y). Parties attending in Chambers are, as a general rule, entitled to take copies of all evidence and other documents in any way affecting their interests, which are brought into Chambers in the course of those proceedings which they are entitled to attend ; and the judge or his Chief Clerk may also direct copies of documents supplied for his use, to be handed over to the other parties (2). On the conclusion of the proceedings at Chambers, a cer- tificate is made of the fees allowed for attendance, for the guidance of the taxing master ; and care should be taken by the solicitors that each attendance, and the fee allowed for it, are marked by the Chief Clerk (a). Whenever, in any proceeding before the judge, the same solicitor is employed for two or more persons, the judge may, (x) Eules as to Costs (Special Al- lowances) r. 21 ; and see before Cons. Ord. XL. 1. 28. (xx) Dan. Pr. 1088. (y) Cons. Ord. XXXV. 1. 20. (a) Id. r. 26 ; Dan. Pr. 1088. (a) Dan. Pr. 1089. PROCEEDINGS UNDER JUDGMENTS AND ORDERS. 419 at his discretion, require that any of the parties shall be re- ties to be presented before him by a distinct solicitor, and adjourn such jjydiSrict proceeding until such party is so represented (6). solicitors. The following Regulations of the Master of the Rolls, as to Ro11b ' attendance of parties on proceedings in his Chambers under judg- tions Jan. ments and orders were issiied in January, 1879 : — 18 ? 9 - If on ijhe return of the summons to proceed under the judg- ment or order it shall appear that all necessary parties are parties to the action or have been~ served with notice of the judgment or order and are bound, directions are to be given as to the parties who are to attend on the proceedings. If on the return of such su mmo ns it shall appear that all necessary parties are not parties to the action or have not been served with notice of the judgment or order, directions may be given for adv ertis ement for creditors, and for leavi ng the accounts i n Chambers, but the adjudication on creditors' claims and the accounts are not to be proceeded with, and no other proceeding is to be taken, except for the purpose of ascertain- ing the parties to be served, until all necessary p arties shall have been served, and are bound, or service shall have been dispensed with, and until directions shall have been given as to the parties who are to attend on the proceedings. / Any of the parties other than those who shall have been directed to attend may attend at their own expense, and upon paying the costs, if any, occasioned by such attendance, or, if they think fit, they may apply by summons for liberty to attend at the expense of the estate or to have the conduct of the action either in addition to or in substitution for any of the parties who shall have been directed to attend (66). An order is to be drawn up on a summons to be taken out by the plaintiff or the party having the conduct of the action, stating the parties who shall have been directed to attend, and such of them (if any) as shall have elected to attend at their own expense, and such order is to be recited in the Chief Clerk's certificate. The proceedings in Chambers are to include the settling and signing of the certificate and all applications relating to the administration of the property the subject of the action. (5) Cons. Ord. XXXV. r. 21. (Jo) See Sharp v. Lush, 10 Ch. D. 468, 473. K E 2 420 PROCEEDINGS IN THE JUDGES' CHAMBERS. Judge may make or- ders for. Applica- tion for. (6.) Additional Accounts or Inquiries (c). Where in the prosecution of the judgment or order, it appears to the judge that it would be expedient that further accounts should be taken, or further inquiries made, he may order the same to be taken or made accordingly ; or, if desired by any party, may direct the same to be considered in open Court (d) ; but such accounts or inquiries must be auxiliary to, and not at variance with, the judgment pronounced by the Court (e). The application is made by summons, which must be served on all parties, and also on persons who have obtained leave to attend the proceedings ; and the additional accounts and in- quiries should be numbered consecutively, in continuance of the numbers of the original accounts and inquiries directed (/ ). Advertise- ments for claims. By whom prepared. (7.) Claims (g). Wherever the persons interested under the judgment or order cannot be conclusively ascertained by evidence, it is usual to issue an advertisement, calling upon all persons, claim- ing to be so interested, to come in and prove their claims at the judge's Chambers ; for example, where an account is directed of the debts of a deceased person (h) ; but this need not usually be done where advertisements have been inserted under 22 & 23 Vict. c. 35, s. 29 (i). The advertisements are prepared by the party prosecuting the judgment or order, and submitted to the Chief Clerk for approval, and, , when approved, are signed by him ; and such signature is sufficient authority to the printer of the Gazette to insert the same (f). (c) For form of summons, see Daniell's Forms, 3rd ed. 513. (d) Oons. Ord. XXXV. r. 19. (e) Partington v. Reynolds, 4 Drew. 253 ; 4 Jur. 200. (/) Seep. 430. {g) For forms, see Daniell's For,ms, 3rd ed. 513—531. (h) Dan. Pr. 1091. (j) Cuthbert v. Wharmby, W. N. 1869), 12. Where the statutory advertisements have been insufficient in regard to time, place of publica- tion, or number of insertions, further advertisements under the judgment will be directed. As to the effect of the statutory advertisements, see Clegg v. Rowland, 3 Eq. 368; Wood v. Weightman, 14 Eq. 434 ; Re Land Credit Co, of Ireland, MarkweWs case, W. N. (1872), 210 ; Newton v. Sherry, I. C. P. D. 246. U) Cons. Ord. XXXV. r. 36. PROCEEDINGS UNDER JUDGMENTS AND ORDERS. 421 The advertisements must fix a time for the claimants to come Effect of in and prove their claims, and must appoint a day for the not'comino- hearing and adjudicating thereon (£) ; and all persons who do in within not come in and prove their claims within the time which may ^L 1 " be fixed will be excluded from the benefit of the judgment or order (I) ; unless the judge at Chambers shall think fit to give special leave upon application made by summons, and then upon such terms and conditions as to costs and otherwise as the judge shall think fit (m). After distribution under a judg- ment, persons making further claims may proceed by action against those persons who have received the assets, but not against the executors (n). Where an advertisement is required for the purpose of any Only one proceeding in Chambers, a peremptory and only one will be a ' lvertlse " issued, unless for any special reason it may be thought neces- usually sary to issue a second advertisement or further advertisements ; lssue f and any advertisement may be repeated as many times and in such papers as may be directed (o). The party prosecuting the Evidence of judgment or order should procure a copy of the Gazette, and of lnse each newspaper in which the advertisement has appeared ; and produce such copies at Chambers, as evidence of the due in- sertion of the advertisement ( p ). A claimant coming in pursuant to advertisement must enter Entry of his claim at the Chambers of the judge in the " Claims Book," „ . for the day appointed for hearing by the advertisement, and file an affidavit in support, and give notice thereof to the solicitors in the cause, within the time specified in the ad- vertisement for bringing in claims (q). The number of the entry of the claim must be stated in the notice (r). Ihe Affidavit affidavit should state the nature and particulars of the claim (s); and any document referred to therein should not be annexed, but referred to as an exhibit (t). Claimants filing affidavits arc not required to take office-copies ; but the party prosecuting the cause or matter must take such copies, and produce the (i) Cons. Ord. XXXV. r. 37. 555. (I) Id. r. 12. See, however, as to (o) Cons. Ord. XXXV. r. 35. creditors, infra. {p) Dan. Pr. 1092. (m) Cons. Ord. XXXV. r. 43. (}) Cons. Ord. XXXV. r. 38. See, («) Clegg v. Rowland, 3 Eq. 368 ; however, as to creditors, infra. David v. Frowd, 1 M. & K. 200 ; (r) Kegs., 8th Aug., 1857, r. 9. Good v. BUwilt, 19 Ves. 330 ; Greig (s) Burroughs v. Elton, 11 Ves. v. Somerville, 1 K. & M. 338 ; 29. Thomas v. Griffith, 2 De G. F. & J. («) Kegs., 8th Aug., 1857, r. 11. 422 PROCEEDINGS IN THE JUDGES CHAMBERS. Plaintiff in creditors' suit must prove his debt. Hearing and ad- judication. Adjourn- ment. Close of evidence. Regula- tions as to claims of creditors. same at the hearing : unless otherwise directed by the judge («). In a creditors' suit the plaintiff must prove his debt in pro- ceedings under the judgment, even if he has established his right to the judgment ; and evidence not adduced at the hear- ing may be brought forward for the purpose of contesting the claim,, by the personal representatives of a deceased person whose estate is being administered (v). On the day appointed for hearing and adjudicating on the claims, the party prosecuting the cause or matter, and any other parties to whom leave to attend has been given by the judge at Chambers, and the claimants (mi), attend at the judge's Chambers, and the adjudication upon the claims is proceeded with (sc). Where, on the day appointed for hearing the claims, any of them remain undisposed of, an adjournment day for hearing such claims will be fixed ; and where further evidence is to be adduced, a time may be named within which the evidence on both sides is to be closed ; and directions may be given as to the mode in which such evidence is to be adduced (y). Any claimant (z) who has not before entered his claim may be heard on such adjournment day, provided he has entered his claim and filed his affidavits four clear days prior to such day, and no certificate of debts or claims has been made in the mean- time (a). The foregoing Rules of Cons. Ord. XXXV. have been con-' siderably affected with respect to the claims of creditors, by the Order of 27th May, 1865. In these cases, every advertisement issued pursuant to any judgment or order directs every creditor, by a time thereby limited, to send to the executor or adminis- trator of the deceased, or to such other party as the judge shall direct, or to his solicitor, named and described in such ad- vertisement, the name and address of such creditor, and the full particulars of his claim, and a statement of his account, and the nature of the security (if any) held by him ; and, at the time of directing such advertisement, a time is to be fixed («) Cons. Ord. XXXV. r. 39. {v) Cardell v. Bwuike, 6 Eq. 464. (w) See, however, as to creditors, infra. (a) Dan. Pr. 1093. (y) Cons. Ord. XXXV. r. 40. (z) As to creditors, see infra. (o) Cons. Ord. XXXV. r. 41. PROCEEDINGS' UNDER JUDGMENTS AND ORDERS. 423 for adjudicating on the claims (6). The time limited for send- ing the particulars is, in general, a month from the issuing of the advertisemeut. The time fixed by the advertisement for adjudicating on the claims is usually three weeks after the ex- piration of the time for sending the particulars; but if the claims are expected to be complicated or numerous, and ad- ditional time will consequently be required to investigate them, a month or other extended period will be appointed. The particulars are, ordinarily, directed to be sent to the solicitor of the executor, administrator, or other party by whom the claims are to be examined (c). » By the Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 10, it Rule as to is enacted that in the administration by the Court of the assets J d ™ lnls -. ' tration, in of any person who may die after the commencement of the Judicature Act (d), and whose estate may prove to be insufficient for the ^ at > 18 ' ?5 - payment in full of his debts and liabilities, and in the winding up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and lia- bilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the law of bankruptcy with re- spect to the estates of persons adjudged bankrupt ; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person, or out of the assets of any such company, may come in under the decree or order for the administration of such estate, or under the winding up of such company, and make such claims against the same as they may respectively be entitled to by virtue of the Judicature Act, 1875 (dd). By the Bankruptcy Rules of Act, 1869 (32 & 33 Vict. c. 71), s. 4.0, it is enacted that a banklu P*=y ? \ /? 7 as to se- creditor holding a specific security may, on giving up the same, cured cre- ditors. (&) Ord. 27th May, 1865, r."i. lie Begent United Service Stwes, 38 (c) Dan. Pr. 1094. L. T. 130 ; Ex parte Railway Steel, (d) 1st Nov., 1875. &e., Co., 8 Ch. D. 183 ; Be Print- (dd) On the construction of Sec. 10, img and Numerical Co., Id. 535 j see Be Coal Consumers, Ap. 4 Ch. Moor v. Anglo-Italian Bank, 10 Ch. D. 625 ; Be Knott, 7 Ch. D. 549, n. ; D. 681 ; Be Richards, W. N. (1879), Be Albion Steel Co. 7 Ch. D. 547 ; 65. 424 PROCEEDINGS IN THE JUDGES CHAMBERS. Attendance of creditors to produce securities, and proye claims. Examina- tion and verification of claims. prove for his whole debt. He is also entitled to a dividend in respect of the balance due to him after realising or giving credit for the value of his security ; but a creditor holding such security, and not complying with the foregoing conditions, will be excluded from all share in any dividend. By s. 31, demands in the nature of unliquidated damages arising otherwise than by contract or promise are not provable in bankruptcy. No creditor on the estate of a deceased person need make any affidavit, nor attend in support of his claim (except to produce his security), unless he is served with a notice requiring him to do so (e). Every creditor" must produce the security (if any) held by him, before the judge, at such time as shall be specified in the advertisement for that purpose, being the time appointed for adjudicating on the claims ; and every creditor 'must, if required by notice in writing, to be given by the exe- cutor or administrator of the deceased, or by such other party • as the judge shall direct, produce all other deeds and documents necessary to substantiate his claim before the judge, at his Chambers, at such time as shall be specified in such notice ; and in case he neglects or refuses to comply with this direction, he will not be allowed any costs of proving his claim, unless the judge otherwise dkects (/). The notice may, unless the judge otherwise directs, be transmitted by post, prepaid, to the creditor, according to the address given by him in the claim sent in by him pursuant to the advertisement, or, if he has employed a solicitor, to such solicitor, according to the address given by him (g). Where the creditor claims in a representa- tive character, notice should be given to him to produce the probate, letters of administration, or other instrument under which he claims title (A). The executor or administrator of the deceased, or such other party as the judge shall direct, must examine the claims sent in pursuant to the advertisement, and ascertain, so far as he is able, to which of such claims the estate of the deceased is justly liable ; and he must at least seven clear days prior to the time appointed for adjudication, file an affidavit — to be made by such executor or administrator, or one of the executors or administrators, or such other party, either alone or jointly with (c) Ord. 27th May, 1865, (/) Id. rr. 3, 4. (g) Id. r. 13. (A) Dan. Pr. 1095. PROCEEDINGS UNDER JUDGMENTS AND ORDERS. 425 his solicitor, or other competent person, or otherwise as the judge shall direct— verifying a list of the claims the particulars of which have been sent in pursuant to the advertisement, and stating to which of such claims, or parts thereof respectively, the estate of the deceased is, in the opinion of the deponent, justly liable, and his belief that such claims, or parts thereof respectively, are justly due and proper to be allowed, and the reasons for such belief (i). In case the judge thinks fit so to direct, the making of this affidavit may be postponed till after the day appointed for adjudication ; and will then be subject to such directions as the judge may give (j). At the time appointed for adjudicating upon the claims on judge may the estate of a deceased person, or at any adjournment thereof, "J 1 ^ the judge may, in his discretion, allow any of the claims, or . or require any part thereof respectively, without proof by the creditors, fu^er and direct such investigation of all or any of the claims not allowed, and require such further particulars, information, or evidence, relating thereto, as he May think fit ; and may, if he so think fit, require any creditor co attend and prove his claim, or any part thereof ; and the adjudication on such claims as are not then allowed will be adjourned to a time to be then fixed (h). An office copy of the affidavit of investigation of the office copy claims sent in, together with the list of such claims made an affidavit of exhibit thereto, must be produced at the time of adjudicating tiqn of upon the claims ; and where no claim is sent in pursuant to ola i ma the advertisement, an affidavit to that effect must be made and' produced filed, and an office copy produced at the time appointed for on adjudi- adjudicating on the claims (/). If. a creditor has received money on account since the death of the deceased person, and creditor from his estate, he must bring it into Court (m). In adjudi- ha . s r ?" eating on the claims the Court will not proceed on the unsup- money on ported evidence of the claimants alone (n). account. Notice must be given by the executor or administrator, or Ev ; den °e of such other party as the judge directs, to every creditor whose alone, not claim, or any part thereof, has been allowed without proof by suffioient - the creditor, of such allowance ; and to every such creditor as a n owance of claim— (i) Ord. 27th May, 1865, r. 5. (1870), 112. (j) Id. r. 6. (n) Down v. Ellis, 35 Beav. 578 ; (£) W. r. 7. Grant v. Grant, 34 Beav. 623 ; (I) Pan. Pr. 1096. Morley v. Finney, 18 W. K. 490. (m) Stevenson v. Marriott, W. N. 426 PROCEEDINGS IN THE JUDGES' CHAMBERS. ■^-or to attend and prove claim. Creditors may send in before any day to which ad- judication adjourned. leave to bring in claim. claim as allowed. List of claims allowed. Claimants not coming in in due time will be ex- cluded. Applica- tion to vary certificate. Interest. the judge directs, to attend and prove his claim or such part thereof as is not allowed, by a time to be named in such notice, not being less than seven days after such notice, and to attend at a time to be therein named, being the time to which the adjudication thereon shall have been adjourned; and in case any creditor does not comply with such notice, his claim, or such part thereof as aforesaid, will be disallowed (o). Any creditor who has not before sent in the particulars of his claim pursuant to the advertisement may do so four clear days pre- vious to any day to which the adjudication is adjourned (p). After the time fixed by the advertisement, no claim 'will be received (except as before provided in case of an adjournment), unless the judge shall think fit to give special leave upon appli- cation made by summons ; and then upon such terms and con- ditions, as to costs and otherwise, as the judge shall direct (q). When the judge at Chambers is satisfied that the claim is properly made out, the Chief Clerk marks the entry of it as allowed ; and it will then form an item in the certificate. When the adjudication upon the claims is completed, the judge may require the party prosecuting the judgment or order to leave in his Chambers a list of all those which have been allowed. The names of the creditors are to be inserted alphabetically in the list (r). Where a judgment or order is delivered or made, whether in Court or in Chambers, directing an account of debts, claims, or liabilities, or an inquiry for heirs, next of kin, or other unascer- tained persons, unless otherwise ordered all persons who do not come in and prove their claims within the time which may be fixed for that purpose by the advertisement, will be excluded the benefit of the judgment or order (s). As to applications to vary the Chief Clerk's certificate, by persons whose claims have been disallowed, see Chapter VII. Where a judgment or order is made directing an account of the debts of a deceased person, unless otherwise ordered, interest will be computed on such debts, as to such of them as carry interest, after the rate they respectively carry, and, as to all others, after the rate of four per cent, per annum, from the (o) Ord. 27th May, 1865, r. 8. As to mode of giving notice, see Id. r. 13, p. 424. (p) Ord. 27th May, 1865, r. 9. (2) Id. r. 10. (»•) Dan. Pr. 1100 ; Cons. Ord. XXXV. r. 44. (J) Cons. Ord. XXXV. r. 12. PROCEEDINGS UNDER JUDGMENTS AND ORDERS. 427 date of the judgment or order (t). But where the estate of the debtor is insolvent, and he has died since October, 1875, a creditor whose debt carries interest by law is only entitled to interest to the date of the judgment or order, which since the Judicature Act, 1875, s. 10, is equivalent to an adjudication in bankruptcy (tt). A creditor whose debt does not carry interest, who comes in and establishes the same before the judge in Chambers, under a judgment or order, is entitled to interest upon his debt at the rate of four per cent, per annum from the date of the judgment or order, out of any assets which may remain after satisfying the costs of the suit, the debts established, and the interest of such debts as by law carry interest (w). A creditor who has come in and established his debt in the Costs. judge's Chambers, under a judgment or order, is entitled to the costs of so establishing his debt ; and the sum to be allowed for such costs is fixed by the judge, unless he thinks fit to direct the taxation thereof; and the amount of such costs, or the sum allowed in respect thereof, is added to the debt so established (v). (8.) Inquiries as to Legaciesand Annuities (w). Where an account is ordered to be taken of the legacies or Adrertise- annuities given by a will, no advertisement, for such legatees and annuitants to come in, need.be issued, when their names app ear by the will . If, however, legacies are given to a class, and its members cannot be conclusively shown by evidence, or where it is unknown whether a legatee is living, or, though proved to be dead, who is his personal representative, or where an inquiry is directed as to incumbrances created by legatees or next of kin, upon their legacies or shares of residue, advertise- ments calling upon such legatees, or next of kin, or the persons claiming under them, to come in and prove their claims, are often directed to be issued (x). (t) Cons. Ord. XLII. r. 9. L. T. 701, overruling Hilton r. Jones, (tt) Re Trott, M. R. in Chambers, 9 Ch. D. 620. 14th Nov., 1878, Reg. Lib. B. 3332. (u) Id. r. 10. The administration of the assets of a (v) Cons. Ord. XL. r. 24. person who died between 1st Nov., (w) For forms, see Daniell's Forms, 1873 and 1st Nov., 1875, is not 3rd ed. 532— 534. affected by the Judicature Act, 1873, (x) Dan. Pr. 1109, 1110. s. 25 (1); Sherwin v. Selkirk, 40 428 PROCEEDINGS IN THE JUDGES CHAMBERS. Lists of legacies and an- nuities. Interest. Lists of the legacies unpaid, and of the annuities and arrears due, are ordinarily required to be supplied for the use of the judge and his Chief Clerk. It should be shown by these lists : what are the names and descriptions of the legatees, the amounts of their legacies, the payments, if any, which have been made on account of the legacies, and from what time interest is due ; the names and descriptions of the annuitants, the nature and the amounts of the annuities, and the amounts of the arrears remaining due in respect thereof, and when due from any other period than the death of the testator, then also from what time such arrears are due. These lists will be examined at Chambers with the probate. Any payments which have been made in respect of the legacies are proved by the production of the receipts of the legatees or annuitants, and for the legacy duty (y). Where an account of legacies has been directed by a judg- ment or order, interest will be computed on such legacies after the rate of four per cent, per annum, from the end of one year after the testator's death : unless otherwise ordered ; or unless any other time of payment, or rate of interest, is directed by the will, and in that case according to the will (?). (9.) Inquiry as to Title in Actions for Specific Performance (a). Course of On the return of the summons to proceed on a judgment or procedure. or der directing an inquiry as to title, the abstract of title, and a statement of the objections and requisitions, or points in dispute between the parties, is usually directed to be left at Chambers ; and a day is named to proceed thereon. On the day appointed, or at an adjourned meeting, the questions in contest are discussed before the Chief Clerk, and afterwards, if necessary, before the judge in person, either in Chambers or in open Court. The opinion of one of the conveyancing counsel of the Court may also be obtained, on a reference to him either on the title generally, or on any particular points in dispute ; in which case, a memorandum or minute of the matters on which such opinion is desired is prepared and signed by the (y) Dan. Pr. 1110. (z) Cons. Ord. XLII. t. 11. (a) For forms, see Daniell's Forms, 3rd ed. 534—538. As to actions for specific perfoimance, see p. 248. PROCEEDINGS UNDER JUDGMENTS AND ORDERS. 429 Chief Clerk, and submitted to such counsel The opinion having been procured, the proceeding is renewed at Chambers, by obtaining and serving notice of an appointment for the pur- pose. When the proceeding is brought to a conclusion, the Chief Clerk will make his certificate of the result (6). Where an action has been brought by the vendor against the^ Further purchaser, and the title is found to be good, the further order crd . er \ n , , action by usually directs, in effect, that an account be taken of what is vendor, due to the ^plaintiff for purchase-money, interest, and costs ; and that, upon his executing a conveyance of the estate to the defendant or his nominee, such conveyance to be settled by the judge in case the parties differ, and delivering up the title- deeds, the defendant pay to the plaintiff the amount so due to him. A certified copy of the order is left at Chambers, and a summons to proceed thereon is taken out and served ; upon the return of which, evidence of the amount due will be directed to be brought in ; and where the costs are to be included in the account, the proceeding will be adjourned till after the taxa- tion ; but where the costs are not to be included, a day will be named to proceed with the account. On the proceedings at Chambers being brought to a conclusion, the Chief Clerk will make his certificate as to the result (c). Where the action is by the purchaser against the vendor, the Further further order, after the title is approved, is similar in form to orlJer ln , , action by the order in the converse case above stated : except that the purchaser. direction to pay precedes that to convey ; and the account is taken, the costs are taxed, the conveyance is settled, and the certificate is made, in like manner (d). (10.) Accounts (e). Where an account is directed to be taken by a judgment or (j ene ral order, directions will be given, on the return of the summons to directions, proceed thereon, as to the manner 'in which the account is to be prosecuted, the evidence to be adduced in support thereof, the parties who are to attend upon it, and the time within which the account must be left at the Judge's Chambers ; and a day will be appointed for the further attendance of the parties (/). (6) Dan. Pr. 1112, 1113. (e) For forms, see Daniell's Forms, (e) Id. 1115, 1116. 3rd ed. 551—568. (d) Id. 1117. (/) Cons. Ord. XXXV. r. 16. 430 PROCEEDINGS IN THE JUDGES' CHAMBERS. Direction to Regis- trar to draw order for account to be brought in by a limited time. Applica- tion for extension of time. Affidavit of verifica- tion. Adminis- tration action. How ac- count pre- The plaintiff, or other party conducting the proceedings, is entitled at the first meeting, or at any adjournment thereof, to obtain from the Chief Clerk, without taking out a summons for the purpose, a direction to the Registrar to draw up an order requiring the accounting party to leave his account by the time thereby limited, and such order may be drawn up, indorsed, and served, and, if disobeyed, 'enforced by attachment or other process. A like direction may be obtained where the account brought in by the accounting party is held to be insuffi- cient. If no direction for the order has been obtained, as above explained, an application for it may be made by summons : which must be served on the accounting party (g). . . If, after such an order has been served upon him, the accounting party is unable to prepare and leave his account within the time thereby limited, he may apply by summons for an extension of time. The summons should be supported by an affidavit showing the necessity for further time, and must be served on the party prosecuting the account. Unless otherwise directed by the judge, the account is made out by the accounting party, and verified by his affidavit (/t). The judgment or order made in an administration action usually directs the following accounts to be taken : — (1.) Of the personal estate of the deceased. (2.) Of his debts. (3.) Of his funeral expenses ; and the legacies and annuities bequeathed by his will. (4.) And an inquiry is ordered to be made as to what parts of his personal estate are outstanding or undisposed of. If there is any real estate to be administered, it is further ordered that an inquiry be made as to what real estates the de- ceased died seised or possessed of, and what (if any) incum- brances affect the same ; and such estate is usually directed to be sold with the approbation of the judge. The information necessary to work out directions of this description is ordi- narily so required to be furnished by the personal and real representatives respectively by affidavits and schedules and exhibits thereto. The items on each side of every account must be numbered consecutively, and the account must be referred to in the affi- davit as an exhibit, and not annexed thereto (i). The account (g) Dan. Pr. 1121. (ft) Cons. Ord. XXXV. (i) Cons. Ord. XXXV. r. 83 33. Regs., 8th Aug., 1857, i. 11. PROCEEDINGS UNDER JUDGMENTS AND ORDERS. 431 must be written on foolscap paper bookwise (/) ; and any alterations therein must be marked with, the initials of the commissioner or officer before whom the affidavit is sworn, and must not be made by erasure with the knife or other in- strument (h). If necessary a further account or further accounts should Further be brought in, so as to bring down the account to the time the aoooun ■ Chief Clerk's certificate is made ; but no sums which have been paid by the accounting party to his solicitor for costs, charges, and expenses, incurred in or during the action, should be in- cluded in the account (I), The party leaving the account shoul d, on the same day g-ive km .;™ f notice ther eof, an d of any affidavit fijfljL irl ""pp™*, ta fflfih^^J. parties as are entitled to attend upon it; and copies of thg ac count aja^ffi 'daylTmay THe obtained by any party an enfr'tlfid to attend (11). Any party seeking to charge any accounting party beyond Notice of what he has by his account admitted to have received must cliat B™8 J accounting give notice thereof to the accounting party, stating, so far as he party be- is able, the amount sought to be charged, and the particulars ? or r at thereof, in a short and succinct manner (m). And an ac- admitted. counting defendant, who is cross-examined on the affidavit which he has filed verifying his account, is entitled to notice of the points on which he is to be so cross-examined (n). The account is vouched by the production of the proper Vouching vouchers, such as receipts : which documents, when produced and tte ao " allowed, are marked by either the Chief Clerk or his junior clerk, with his initials, as evidence of such inspection and al- lowance. It seems that the vouchers will be admitted as evidence of the payment of the sums therein specified, and credit given to the accounting party in the account, unless the other side shows some reasonable ground for impeaching the vouchers ; but that if any party objects, the affidavit or oral evidence of the person who received the money is required ; and if this cannot be had, then proof must be given of his signature to the voucher. All vouchers must be stamped with the proper stamp (if any required) : otherwise they will be rejected. Should {j) Regs., 8th Aug., 1857, r. 17. (m) Cons. Ord. XXXV. r. 34. caused by the death of a guardian, or by the marriage of a guardian." female guardian, is made by summons, and the application must be supported by evidence of the facts, and also of the fitness of the proposed new guardian and his willingness to act (nn). (2.) Maintenance and Advancement (o). By 11 Geo. 4 & 1 Wm. 4, c. 65, s. 32, the Court may by llGeo. 4& an order to be made on the petition of the guardian of any infant in whose name any stock is standing (or any sum of money by virtue of any Act for paying off any stock), and who is beneficially entitled thereto, or, if there is no guardian, by an order to be made in any cause, direct all or any part of the dividends due, or to become due, in respect of such stock, or any such sum of money, to be paid to any guardian of such infant, or to any other person, according to the discretion of the Court, for the maintenance and education, or otherwise for the benefit of such infant : such guardian or other person being named in the order directing such payment. By 23 & 24 Vict. c. 145, it is enacted that in all cases 23 & 24 where any property is held by trustees in trust for an infant, yj° t- c - either absolutely or contingently on his attaining the age of twenty-one years, or on the occurrence of any event previously to his attaining that age, such trustees, at their sole discretion, may pay to the guardians (if any) of such infant, or otherwise apply for or towards his maintenance or education, the whole or any part of the income to which such infant may be entitled in respect of such property, whether there be any other fund ap- plicable to the same purpose, or any other person bound by law to provide for such maintenance or education, or not ; and the trustees are to accumulate all the residue of such income by way of compound interest, by investing the same, and the resulting income thereof, from time to time, in proper securi- (») Talbot v. E. of Shrewsbury, 9 Beav. 345. 4 My. & Cr. 673 ; Duke of Beaufort (rm) Dan. Pr. 1197. v. Berty, 1 P. Wms. 704 ; Roach v. (o) For forms, see Daniell's Forms, Gwrvan, 1 Ves. 160; Jones v. Powell, 3rd ed. 655— 660. 454 PROCEEDINGS IN THE JUDGE'S CHAMBERS. ties, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations shall have arisen ; but the trustees may at any time, if it appear to. them expedient, apply the whole or any part of such accumula- tions, as if the same were part of the income arising in the then current year (p). This power cannot, however, be exer- cised if it is negatived by the trust instrument ; and even if not negatived it must be exercised subject to the express terms of such instrument (q). The Act does not empower the trus- tees to deal with or affect the rights of any persons soever, except to the extent to which they might have dealt with or affected such rights if the instrument under which the trustees are empowered to act had contained express powers for such trustees so to deal with or affect such rights (r) ; and the pro- visions of the Act extend only to persons entitled or acting under a deed, will, codicil or other instrument executed after the passing of the Act (s), or under a will or codicil confirmed or revived by a codicil executed after that date (t). The power of maintenance given by the 23 & 24 Vict, c. 145, extends only during minority (u). But trustees may under the Act apply for maintenance the income of property held on trust for the infant contingently on his attaining twenty-one (v) ; provided the infant on coming of age will be entitled to both the principal and the income for the interme- diate period (w). The word " guardian '' in section 26, includes the father (x). Where The Court will not usually order maintenance while the living father of the infant is living (y) ; but otherwise if he be unable to maintain and educate his infant children according to the position in which their fortune may be expected to place them (g). And if there is an express gift or trust for main- tenance the rule does not apply (a). (p) Section 26. 515 ; Fawkner v. Watts, Id. 408 ; (5) Section 32. Sutler v. Butler, 3 Atk. 60 ; Darley (r) Section 33. v. Darley, Id. 399. (s) 28th Aug., 1860. (z) Buckworth v. Buckworth, 1 (i) Section 34. Cox, 80. («) Re Breed, 1 Ch. D. 226. (a) Hughes v. Hughes, 1 Bro. C. (v) Re Cotton,, Id. 232. C. 387 ; Hawkins v. Watts, 7 Sim. (ro) Re George, 5 Ch. D. 837. 199 ; Leach v. Leach, 13 Sim. 304; (x) Re Cotton, sup. Newton v. Curzon, 16 L. T. 696 ; (y) Jackson v. Jackson, 1 Atk. Brophy v. Bellamy, 8 Ch. 798. to main- tenance. INFANTS. 455 The Court will not, except in cases of necessity, order that Applica- any portion of the capital shall be applied for the maintenance ^ital of the infant (6). An application at Chambers for the allowance of main- Procedure tenance is made by an ordinary summons, in cases where a suit ™j^^" or matter is pending : in other cases it is made by a summons mainten- in the form used for originating proceedings at Chambers. The anoe- summons must be served on the trustees, or other persons interested in the fund out of which the -maintenance is to be paid; and must be supported by evidence showing that the income or corpus of the fund is applicable to the purpose. A scheme, showing the heftds of the intended expenditure, should also be put in evidence. If an increase of the allowance is afterwards required, the application for it is made by an ordi- nary summons, supported by an affidavit showing the necessity for the increase. The summons should be served on the persons above mentioned (c). Where, on the hearing of a cause, directions are given as to Inquiry as the appointment of guardians, or an allowance for maintenance; an inquiry what is proper to be allowed for the maintenance of the infant, and out of what fund the allowance ought to be made, will be directed (d). The County Courts have jurisdiction in proceedings relating County to the maintenance or advancement of infants where the pro- Courts - perty of the infant does not exceed in amount or value the sum of £500 (e). (3.) Management of Property. The guardian must act for the benefit of the infant ; he can- How guar- not make any profit for himself out of the office • and he is in dl ® ,n snoul< l the position of a trustee for the infant as to any property of the infant which comes into his possession. As a general rule the Conversion guardian cannot convert the real estate into personalty nor the personal property into realty (/). And as a general rule the Court will not change the nature of an infant's property by (6) Ex parte Chambers, 1 Russ. & (c) Dan. Pr. 1201, 1202. M. 577 ; Ex parte England, Id. 499 ; \d) Id. 1202. Nottley v. Palmer, 11 Jur. 968 ; Re (e) 28 & 29 Vict. c. 99, s. 1 (6). Tihbi, 17 W. E. 304 ; Prince v. (/) Matthew v. Brise, 14 Beav. Sine, 26 Beav. 634 ; Wortkmgton 345 ; Sleeman v. Wilson, 13 Eq. v. M'Craer, 23 Beav. 81. 36. of infant's property. 456 PROCEEDINGS IN THE JUDGE'S CHAMBERS. directing a conversion of real into personal or of personal into real estate, except under particular circumstances, where it is manifestly for the advantage or the convenience of the infant ; but what the Court might do in such a case by its own order, trustees or guardians will be allowed to do (g). It is, however, desirable that the guardian should obtain the sanction of the Court to any act of this kind. By 11 Geo. 4 & 1 Wm. 4, c. 65, an infant or his guardian may, with the sanction of the Court, accept renewals of leases and grant leases, as in the Act mentioned. Marriage of ward of Court without consent. Persons required to consent to marriage of infants. (4.) Marriage and Marriage Settlements (i). If a man marries a ward of Court without the consent of the Court, even though with the consent of the guardian, he, and all others eoncerned in aiding and abetting the act, are treated as guilty of a contempt of Court ; and even though he was ignorant that she was a ward of the Court, he is deemed guilty of a contempt (_/). In such cases, an application may be made by motion, or petition of the infant, or of the guardian, or any other person, for an inquiry as to the validity of the marriage, . and the approval of a proper settlement. The application must be supported by affidavit. If it is found that the marriage, is ; invalid, a valid marriage may be ordered (k). If the husband has been committed for contempt he may, on executing the settlement and paying the costs, petition for his discharge (I). By 4 Geo. 4, c. 76, ss. 16, 17, the persons whose consent is required to the marriage of an infant, not being a widower or widow, are the father ; if the father be dead, the guardians of the person of the infant, or one of them ; if there be no such guardians, the mother if unmarried ; if no mother unmarried, the guardians of the person appointed by the Court, if any, or one of them. If any of the persons whose consent is so required shall be rum compos mentis, or be beyond the seas, or shall un- reasonably or from undue motive withhold consent, an applica- tion may be made to the Court by petition; and if the proposed marriage appear proper, a judicial declaration to that effect (g) Seton, 4th ed. 740. (i) For forms, see Daniell's Forms, 3rd. ed. 660-672. (j) Sm. Man. Eq. 12th ed. 474. (i) Dan. Pr. 1207, 1208. (Z) Nicholson v. Squire, 16 Ves. 259; Stevens v. Savage, 1 Ves. Jr. 154. INFANTS. 457 may be made, which shall be as effectual as if the father, guardians or guardian, or mother had consented thereto. These provisions do not apply where a father is beyond seas or unreasonably refuses his consent ; but only, in the case of a father, where he is non compos mentis (m). The petition must pray a declaration that the marriage is a fit and proper marriage within the Act, and must be supported by affidavit. An application for leave for a ward of Court to marry is AppHca- usually made by petition. Where, however, it is unnecessary tl0n t0 . J J r ' J marry ward to resort to the 18 & 19 Vict. c. 43 (n) the application may be of Court, made by summons ; and usually is so, if the infant's property is small. In such case the settlement may often be effected by the order, without a deed. The petition is ordinarily presented by the intended husband, but sometimes by a female ward, by her next friend or guardian ; and sometimes by both parties. Where, however, the settlement cannot be effected except under 18 & 19 Vict. c. 43, it would seem the petition must be pre- sented by the infant, or his or her guardian (o)./ The petition should state the age of the ward ; the nature of his or her fortune ; the contemplated marriage ; and the age, rank, position in life, and fortune of the person to whom the infant is proposed to be married ; and should pray for an inquiry whether the contemplated marriage is a proper one for the ward ; that, if so, proposals for a settlement may be received • that a proper settlement may be approved ; and that, upon the execution thereof, the parties may be at liberty to intermarry. The allegations in the petition must be supported by affidavit ; but it is usual, on the petition being opened in Court, to adjourn it wholly to Chambers, without any order thereon being then drawn up (p). In proceeding on the petition in Chambers, the propriety of the marriage is, in the first place considered ; and if that is shown, the proposals for the settlement are brought in and discussed ; and when these are settled, the matter is adjourned for a deed to be prepared to carry them into effect. The draft of such deed is then prepared by the lady's solicitor ; a copy is (m) Ex parte I. C. , 3 My. & Cr. a petitioner or applicant in every 471. case ; Lucas v. Daltiel, W. N. (1879), (n) Infra. 151. (o) Dan. Pr. 1209, 1210. It seems (p) Dan. Pr. 1210. that the intended husband should be 458 PROCEEDINGS IN THE JUDGE'S CHAMBERS. left at Chambers, and is there settled, usually with the aid of the conveyancing counsel ; the fitness of the proposed trustees and their consent to act must be shown ; and an approval of the deed is signed by the Chief Clerk, in the usual manner. The Chief Clerk then prepares and signs the minute of an order approving the marriage and settlement, and directing that, upon the execution thereof by the persons therein named, the parties be at liberty to intermarry. The minute is transmitted to the Eegistrar, by whom the order is drawn up (§). Settle- By 18 & 19 Vict. c. 43, every male infant who has attained mentsby ^g a g e f ^ weQ ij y eargj an ) Per Leach, V. C. 1 S. & S. 153, et seq. 357 ; Seton, 4th ed. 58. (u) Registrar's Regs., 15 March, (q) Attorney General v. Corp. of 1860, rr. 16, 31. Halifax, 18 W. R. 37. (v) Ord. as to Court Fees, .Oct., (r) Berry v. Exchange Trading 1875, Sched. ; Ord. as to Fees, Co., 1 Q. B. D. 77 ; Aitkin v. Dun- April, 1876, Sched. bar, 25 W. R. 366 ; Ycttes v. Biles, {w) Ord. XLII. t. 20. As to 25 W. R. 452. enforcing judgments, see Part I. (») Daubney v. Shuttleworth, 1 Chapter XIX. (p. 166). . Ex. D. 53. (*) For forms, see Daniell's Forms, (t) See "Entry of Judgment," p. 3rd ed. 852—857. 474 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Petitions of course. "Plead- ing" in- cludes petition. How en- titled. To whom Petitioner. Persons under disability. Security for costs. Footnote. which may be moved for of course may also be obtained, as of course, upon petition (y). Petitions for orders of course are usually presented to the Master of the Rolls, notwithstanding the cause or matter is not attached to his branch of the Division (z). It is important to bear in mind that in the construction of the Judicature Acts and Eules the term " pleading " includes a . petition (a). Petitions are. not, however, required to be printed (6). The petition must be entitled in the cause or matter in which it is presented. If presented under an Act of Parlia- ment it must be entitled as mentioned on p. 257, ante- A special petition in any cause or matter must be presented to the judge to whose Court the cause or matter is attached ; and must be marked with the name of such judge (c). The petition must state by whom it is presented. If the petitioner is not a party to the action or matter, his residence and description must also be stated (d). Infants, and married women entitled for their separate use, or when the interest of their husbands is adverse, must petition/ by their next friend ; and the Court will require a guardian to be appointed to an infant respondent (e). A lunatic petitions by his committee, and a person of unsound mind not so found, by guardian. If the petitioner is resident out of the jurisdiction, and is not a party to the action or matter in which it is presented, he may be compelled to give security for costs (/). 3 If the petition is not for an order of course there must be written at the foot thereof, and of everycopy thereof, a state- ment of the persons, if any, intended to be served therewith ; or, if no person is intended to be served with it, a statement to that effect (#>). The respondents must be mentioned by name (gg). (y) Dan. Pr. 1451. (i ) Id. (a) 36 & 37 Vict. c. 66, s. 100. As to preparation, delivery, &c, of pleadings, see Part I. Chapter TI» (o) Ord. XIX. r. 5. (c) 36 & 37 Vict. c. 66, s. 42 ; Cons. Ord. VI. rr. 5, 9. (d) Olazbrooh v. GiUatt, 9 Beav. 492. (e) Re Sarrington, 27 Beav. 272 ; Re Ward, 6 Jur. 441. (/) Re Pasmore, 1 Beav. 94 ; Ex parte Seidler, 12 Sim. 106 ; Parting- ton v. Reynolds, 6 W. K. 307. (g) Cons. Ord. XXXIV. t. 1. (gg) Meyrkk v. Laws, W. N. . (1877), 223. MOTIONS AND PETITIONS. 475 A petition is addressed to Her Majesty's High Court of Petitions Justice. If it is not for an order of course, and the cause or "°t f matter is attached to the Kolls' branch of the Chancery course. Division, the petition will be answered on being left at the Office of the Secretary of Causes at the Eolls ; if not so attached, it will be answered on being lodged at the Office of the Lord Chancellor's principal secretary. The answer consists of a memorandum, written in the margin of the petition, and signed by such secretary, directing all parties concerned to attend on the next day of petitions ; unless upon previous application to the judge before whom the petition is to be heard, permission has been given to have the petition answered for an earlier day. A fair copy of the petition must be left at the same time. When the petition is answered it is taken away by the person presenting it ; and the copy is forwarded from the Secretary's office to the judge by whom the petition is to be heard (A). If the petition is for an order of course, it must be lodged Petitions with the Secretary of Causes at the Eolls : who will draw up f ° r or(lers ot course. the order thereon, in such form as the Master of the Rolls may direct; and will sign every such order as passed, with his initials (i). Every such order is entered in a book kept at the Secretary's office at the Eolls, for that purpose, and is marked and signed with the initials of the Secretary as entered ; and the suitors of the Court and their solicitors have access to the book, during office hours, without the payment of any fee ; and every such order has the same force and effect as orders of course passed by the Eegistrar have (f). All petitions, except those which are of course, require Service, service upon all parties interested; but if there is no other party interested in the matter, as in the case of petitions for the transfer or sale of stock, or the payment out of Court of money, standing to the separate account of the petitioner, no service is necessary. Under special circumstances, the rule as to service may be wholly or partially dispensed with (k). Unless the Court gives special leave to the contrary, there must be at least two clear days between the service of a petition (h) See Dan. Pr. 1453, 1454. bert v. Newark, 3 De G. & S. 405 ; (i) Id. 1454. Re Wise, 5 De 9. 4 S. 415 ; Ex (j) Id. Cons. Ord. XXIII. r. 17. parte Peart, 17 L. J. (Oh.) 168; (A) Dan. Pr. 1454, 1455 ; Lam- Me Hodges, 6 W. R. 487. 476 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Service. Guardian ad litem for infants or person of unsound mind. Setting and the day appointed for hearing it (I) ; and where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, and Good Friday are not to be reckoned in the Computation of such limited time (m). Where the person to be served with a petition is a party suing or defending by a solicitor or in person, the petitiom is (except in matters of contempt requiring personal service) served upon such solicitor or party in the same way as proceed- ings not requiring personal service (w). Where a person who is not a party appears in any proceeding, service upon the solicitor in London by whom such party appears will be good service, except in matters of contempt requiring personal ser- vice (o). A petition in the case of a defendant who has not appeared may be served by being filed with the proper Master of the Supreme Court, or with the District Kegistrar, as the case may be ; or if such defendant was duly served with the writ, the petition may be served upon him (p). Service is effected by delivering to and leaving with the person served a true copy of the petition and footnote thereto, and of thejiat or answer thereon, and at the same time showing him the original petition and answer thereto (q). If an order for substituted service is required, it may be applied for on motion ex parte, supported by an affidavit of the facts. Where several infants were living with their mother, service on any one of them, or on their mother, was allowed to be substituted for service on all (r). Where a petition is served upon an infant or a person of unsound mind, a guardian ad litem must be appointed, by whom he may appear. The application for such appointment is made by motion of course, or by petition of course at the Eolls ; and is supported by an affidavit of the petition having been served and of the fitness and consent to act of the pro- posed guardian (s). Petitions are set down by the secretary to the Lord Chancellor (I) Cons. Ord. XXXIV. r. 2. (m) Ord. LYII. r. 2. (») Dan. Pr. 1455. (o) Cons. Ord. III. r. 7. (p) Ord. XIX. rr. 6, 29 ; Dymond v. Croft, 3 Ch. D. 512 ; Morton v. Miller, Id. 516 ; Ord. LIII. r. 7. (?) Dan. Pr. 1455. (?•) He Blackwood, W. N. (1867), 114. (s) Dan. Pr. 1456. MOTIONS AND PETITIONS. 477 or to the Master of the Rolls, as the case may be, and a list down, and thereof sent to the Registrar to be put in the paper (f). The calling ° n ' petitions are called on in their regular order ; precedence is, in the first instance, given to unopposed petitions ; and should any petitions remain undisposed of at the end of the petition day, they are placed in an adjourned list, preserving their original order ; and are taken generally on the next petition day, in priority to the opposed petitions in the new list (m). Counsel's brief will consist of a brief copy of the petition and The brief, of the evidence on each side, together with such observations as may be deemed necessary (v). If on the hearing the Court or judge shall be of opinion that Where any person to whom notice has not been given ought to have n ? tlce not J r ° ° given to or to have had such notice, the Court or judge may either dis- all proper miss the application, or adjourn the hearing; in order that such P ersons - notice may be given, upon such terms, if any, as the Court or judge may think fit to impose (w) ; and the hearing may from time to time be adjourned upon such terms, if any, as the Court or judge shall think fit (x). Upon any motion, petition, or summons evidence may be Evid- " given by affidavit ; but the Court or a judge may, on the appli- ence Cr- eation of either party, order the attendance for cross-examina- tion of the person making any such affidavit (z). In these affidavits, statements as to the witnesses' belief, with the grounds thereof, are admitted (a). Where a witness is examined viva voce for the purpose of Vivd voce using his evidence upon any application by petition, such eTldence ' examination generally takes place before an examiner of the Court, or an examiner specially appointed for the purpose (6) ; but it may take place before the Court at the hearing (c). The regulations respecting evidence by affidavit upon a peti- Affidavit tion are substantially the same as those relating to evidence by eTidence - affidavit upon a motion (e). When the petition is called on, if any of the respondents do Default in appearing. (0 Seton, 4th ed. 52. (z) Ord. XXXVII. r. 2. («) Dan. Pr. 1456. (a) Id. r. 3. (») Id. (6) 15 & 16 Vict. c. 86, s. 40. (w) Ord. LIII. r. 5. (c) Re Coal Economisirig Gas Co., (*) Id. r. 6. Gover's. Case, 24 W. R. 36. ($) As to evidence generally, see (e) See p. 472. p. 103, et sea. 478 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. to list. not appear, the Court, upon production of an affidavit of service of the petition upon such respondents, will make an order as prayed, or such other order as may be just. If the petitioner does not appear, the petition will be dismissed with costs, on the application of the respondent, and on production of an affi- davit of having been served with the petition (/). The affidavit of service must be filed at latest before the rising of the Court on the day the order is made ; and the affidavit should be pro- duced to the Eegistrar (g). Restoration Where an unopposed petition is directed to stand over, with- journed ou * fi xm g a day for it to be again put into the paper, the petitions Eegistrar in attendance in Court, upon the written request of the solicitor, will direct the same to be restored to the paper for the following petition day (A). In other cases, where the further consideration of a petition is adjourned, or any portion of a petition is directed to stand over, the Eegistrar will restore the petition to the paper for hearing, upon being satisfied that the object for which it was adjourned has been accomplished, upon production to him of a written request of the solicitor having the conduct of the proceeding. Notice that a petition has been restored to the paper for hearing must be given to the other persons entitled to appear upon it (i). Amend- By Ord. XXVII. r. 6, application for leave to amend any pleading (J) may be made by either party to the Court or a judge in Chambers ; and leave may be given on such terms as to costs or otherwise as may seem just. Leave to amend the petition is almost of course. Petitions have been amended after the hearing, and the passing and entry of the order. Facts occurring after leave to amend given may be stated in the amendments. An amended petition does not in general require re-answering. The Eegistrar will, if required, indorse the direction on the brief or petition as an authority to the secretary to make the amendment, but counsel's indorsement is in general sufficient (k). (/) Dan. Pr. 1459; Seton, 4th (h) Registrar's Regs., 15th March, ed. 52. Queen, however, whether 1860, r. 14. Such last-mentioned affidavit is now. (i) Dan. Pr. 1457, 1458. necessary. See i'x parte Lows, lie (j) The term "pleading "includes Lows, 7 Ch. D. 160 ; James v. Crow, petitions ; 36 & 37 Vict. c. 66, s. Id. 410. 100. (t/) Seton, 4th ed. 52. (£} Seton, 4th ed. 52. ment. MOTIONS AND PETITIONS. 479 The order made on a petition is drawn up, passed, and entered Drawing in the usual way (I). On bespeaking the order, the original up order- petition, and counsel's brief, with his endorsement of the order made, and any judgment, order, or the office copy of any cer- tificate, on which the petition is founded, and office copies of any affidavits, and any exhibits or other evidence used at the hearing, must be left with the Kegistrar; and if a fund in Court is to be dealt with, the Chancery Paymaster's certificate of the fund must also be left (m). Before the order is passed, the original petition must be filed in the Central office, and a note thereof made on the order by the proper officer there (n). On drawing up and entering the order a fee of £1 on the Fees. higher or 10s. on the lower scale is payable by a stamp impressed upon or adhesive to the order (o). An order made on petition may be enforced in the same Order, how manner as a judgment to the same effect (p). eniorced. Where a petition in any cause or matter assigned to the Costs. Chancery Division is served on a respondent, with notice that if he appear his costs will be objected to, the tender of costs for perusing the same is to be £2 2s., which is to be allowed to the party making the payment if the service was proper, but not otherwise. This is without prejudice to the right of either party to costs or to object to costs where no such tender is made, or where the Court or judge shall consider the party entitled notwithstanding such notice or tender to appear in Court. In any other case in which a solicitor of a party served necessarily or properly peruses any such petition without appear- ing thereon, he is to be allowed a fee not exceeding £2 2s. (q). Any party appearing on any application or proceeding in which he is not interested, or which he ought not to attend, will not be allowed costs unless expressly directed (r). On petitions for payment of funds out of Court, where the Adjourn- evidence is complicated, or the persons representing a class or ™^^ to family are numerous, and much time would be occupied in Chambers, investigating their title in Court, and in the case of petitions (I) See "Entry of Judgment," p.. April, 1876, Sched. 153, et seq. (p) Ord. XLII. r. 20. As to (m) Registrars' Regs., 15th March, enforcing judgments, see Part I. 1860, rr. 16, 32. Chapter XII. (p. 166). (n) Cons. Ord. XXIII. r. 23. (?) Add. Rules, 1875 (Special (o) Ord. as to Court Fees, Oct., Allowances), r. 17. 1875, Sched. ; Ord. as to Fees, (r) Id. r. 21. 480 INTEHLOCUTO&Y AND INCIDENTAL APPLICATIONS. for leave for an infant to marry, the more usual course now is, to adjourn the consideration of the whole matter to Chambers. A summons is then taken out to proceed on the petition in Chambers, where, if right, the order may be made; and, in that case, a minute of the order, and of the evidence adduced, written on the fold of the original petition to be filed therewith, is sent to the Registrar to enabla him to draw it up. By this course, the expense of a certificate and of a further order and attend ance in Court is saved. If a petition is adjourned to Chambers, that the matter may be looked into there, and is then to be brought on again to be disposed of in Court, without a formal certificate being made, a minute of the result is annexed to the judge's copy of the petition and sent to the judge in Court, and a note of the evidence used will be made by the Chief Clerk, for the Registrar, on the fold of the original petition (s). When any matter is adjourned to Chambers, or any directions are given to be acted upon at Chambers, without an order being drawn up, a note signed by the Registrar, stating the purpose of the adjournment or directions, must be left at Chambers (*). In the case of a petition, such direction should be indorsed by the Registrar on the original petition, and a note thereof should also be given by him on a separate sheet for use in Chambers («). (o) Seton, 4th ed. 54. (a) Seton, 4th ed. 54. (*) Regs., 8th Aug., 1857, r. 3. CHAPTEK II. DISCONTINUANCE AND WITHDRAWAL OF STATEMENT OF CLAIM OB DEFENCE (a). The plaintiff may, at any time before receipt of the defendant's Discon- statement of defence, or after the receipt thereof before taking J™"^ any other proceeding in the action (save any interlocutory ap- drawal by plication), by notice in writing, wholly discontinue his action or ■ pl -i? tl f withdraw any part or parts of his alleged cause of complaint, leave, and thereupon he must pay the defendant's costs of the action, Costs - or, if the action be not wholly discontinued, the defendant's costs occasioned by the matter so withdrawn. Such costs are to be taxed, and such discontinuance or withdrawal, as the case may be, will not be a defence to any subsequent action. Save as Leave to in this rule otherwise provided, it is not competent for the h° w By consent, an order to discontinue the action on certain terms (a) For forms, see Daniell's Forms, (J) Ord. XXIII. r. 1. 3rd ed. 316—320. 482 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Order by consent. Special petition. Where defence alleges new matter. Where action referred. With- drawal of record. Costs. agreed on, may be obtained on motion of course, or on petition of course, or on special motion or petition, or on summons. Where any of the parties are not sui juris, or are executors or trustees, or a fund in Court is dealt with, or the terms are com- plicated, the application is usually made by special petition (c). If the statement of defence sets up matters arising after the issue of the writ of summons, the truth of which the plaintiff cannot deny, and which afford a good answer in law, the proper course for the plaintiff will be, not to discontinue under Order XXIII., but to enter a confession of the defence, and take judgment for his costs under Ord. XX. r. 3 (d). Leave to discontinue, being discretionary, ought not to be granted to a plaintiff where an action has been referred to an arbitrator to state a special case, and the arbitrator has found nearly all the facts of the case in favour of the defendant («). When a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing, signed by the parties (/). A defendant may sign judgment for the costs of an action if it is wholly discontinued, or for the costs occasioned by the matter withdrawn if the action be not wholly discontinued (g). (c) Dan. Pr. 696. (d) Wilson, 2nd ed. p. 211. As to confession under Ord. XX. jr. 3, see (e) StaJilschmidt v. Walford, i Q. B. D. 217. (/) Ord. XXIII. i-. 2. (g) Ord. XXIII. r. 2a. CHAPTEE III. STAYING PROCEEDINGS (a). Every solicitor whose name shall be indorsed on any writ Demand by of summons must, on demand in writing made by or on def < sn ? ant ' , D J as to issue behalf of any defendant who has been served therewith or has of writ. appeared thereto, declare forthwith whether such writ has been issued by him or with his authority or privity ; and if such solicitor shall declare that the writ was not issued by him or with his authority or privity, all proceedings upon the same will be stayed, and no further proceedings may be taken there- upon without leave of the Court or a judge (b). When a writ is sued out by partners in the name of their Demand firm, the plaintiffs or their solicitors must, on demand in writing ° r names ' r ' ° oi partners by or on behalf of any defendant, declare forthwith the names and places of residence of all the persons constituting the firm. And if the plaintiffs or their solicitor fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the Court or a judge may direct (c). If it appear to the Court or a judge, either from the statement Stay of of claim or defence or reply or otherwise, that there is in any P r00eec '- r J J ings pend- action a question of law, which it would be convenient to have ing deci- decided before any evidence is given or any question or issue of slon .. fact is tried, or before any reference is made to a referee or an of law. arbitrator, the Court or judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case, or in such other manner as the Court or Judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed (d). (a) For forms, see Daniell's Forms, (c) Id. t. 2. 3rd ed. 952—965. (d) Ord. XXXIV. r. 2. (6) Ord. VII. r. 1. I I 2 484 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Where action brought on behalf of infant. Where two or more actions brought in name of infant. Where action brought on behalf of married woman. Where plaintiff has not paid costs of former action. Where plaintiff ordered to give secu- rity or to do any act. The Court will, upon the application of the defendant, or of any person acting as next friend of the plaintiff for the purpose of the application, where a case is shown that an action is not for the infant's benefit, or is instituted from improper motives, either dismiss the action with costs, or direct an inquiry as to the propriety of the action (e). Where two or more actions for the same purpose are com- menced in the name of an infant by different persons acting as his next friends, the Court will, where no judgment has been given in any of the actions, direct an inquiry which action is most for his benefit, and when that point is ascertained will stay the proceedings in the other actions (/). If an action is commenced by a next friend on behalf of a married woman (being an adult) without her consent, it will upon special motion, supported by her affidavit of the matter, be dismissed with costs to be paid by the next friend (g). Where the plaintiff has made default in payment of the costs of a former action against the same defendant, or the person whom he represents, for the same purpose, the defendant may obtain an order, on motion, with notice to the plaintiff, staying all further proceedings until the plaintiff has paid such costs ; and where, after great delay, the costs still continue unpaid, the Court will order the plaintiff to pay them within a limited time, or, in default, that the second action stand dismissed (/*). The effect of such an order is, that at the expiration of the time limited for payment, unless the amount has been paid, the action is at an end ; and an order made after the expiration of the time, giving further time for payment, is ultra vires (i). The defendant should apply before taking any step in the new action. If the plaintiff has been ordered to pay or give security for costs, or to do any act, proceedings in his action may be stayed until compliance with such order, and in default the defendant may take proceedings to obtain an order to dismiss for want of prosecution (/). (e) Dan. Pr. 69. (/) Id. 68. And see further hereon, and as to dismissal of action on infant coming of age, ante, pp. 367, 369. (g) Dan. Pr. 103, 104. As to actions by married women without a next friend and without leave, see ante, p. 380, el seq. (A) Dan. Pr. 696, 697. (t) Whistler v. Mancoch, 3 Q. B. D. 83. U) Seton, 4th ed. 1540. STAYING PROCEEDINGS. 485 Actions -will sometimes be stayed as frivolous, vexatious, and Frivolous, &c, ai tions. an abuse of the process of the Court (k). An action was stayed on these grounds where the question at issue had been already decided in a prior case (/). These actions may be stayed upon summons at Chambers (»). Where the defendant offers to comply with the demand of Where the plaintiff, and would have done so before action brought had d ° fem ' a nt an application been made to him for that purpose, the proceed- comply ings may be stayed without costs (n). with de- When the plaintiff's claim is for a debt or liquidated demand T^^ ele only, the proceedings will b.e stayed, without any application debt, &c, for the purpose, upon payment by the defendant within four V* 1 . TJ im days after service, or, in case of a writ not for service within after ser- the jurisdiction, within the time allowed for appearance, of the T10 . e ot amount claimed by the indorsement on the writ for debt, or in respect of the plaintiff's demand, and for costs respectively (o). In case of an action by a landlord to recover land for non- in action payment of rent, if the tenant or his assignee shall at any time J^ landlo «l before the trial, pay or tender to the lessor or landlord, his possession. executors or administrators, or his or their solicitor in that cause, or pay into Court the rent and costs, all further pro- ceedings in the action are to cease and be discontinued (p). The Court or a judge has power to give relief in a summary manner in case of an action brought by a landlord to recover land for non-payment of rent (q). The Chancery Division has power to relieve against a for- Where feiture for breach of a covenant or condition to insure against covenant ° to insure loss or damage by fire, where no loss or damage by fire has broken. happened, and the breach has, in the opinion of the Court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of application to the Court in conformity with the covenant to insure, upon such terms as to the Court may (£) See Castro v. Murray, 10 Ex. sup. 213 ; Dawkins v. Prince Edward of (n) Rudd v. llowe, 10 Eq. 610. Saxe- Weimar, 1 Q. B. D. 499; (o) Ord. IU. r. 7. As to stay of Edmunds v. Attorney-General, 26 proceedings by payment into Court W. K. 550; Vale v. Oppert, 5 Ch. in satisfaction, see Ord. XXX. rr. 1, D. 969. *, PP- 4S> 67. (1) Dawkins v. Prince Edward of ( p) 15-& 16 Vict. o. 76, s. 212. Saxe- Weimar, sup. (?) See 23 & 24 Vict. c. 126, s. 1. (to) Edmunds v. Attorney-General, 486 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Action by mortgagee to recover Stay of proceed- ings by consent. seem fit. Where relief is granted, the Court is to direct a record thereof to be made by indorsement on the lease or other- wise. The Court may not relieve the same person more than once in respect of the same covenant or condition, nor may it relieve where the forfeiture has been already waived out of Court (r). In case of an action by a mortgagee to recover possession of the mortgaged premises, the payment by the mortgagor to the mortgagee, or into Court, of the principal; interest, and costs, will, if no action for foreclosure or redemption be pending touching such mortgaged premises, be deemed a full satisfac- tion, and the Court may compel the mortgagee to recouvey, and deliver up the title deeds ; but this does not extend to any case where the person against whom the redemption is prayed, shall (by writing under his hand or of his solicitor or agent, to be delivered before such payment into Court, to the solicitor for the other side) insist either that the party praying the redemp- tion has not a right to redeem, or that the premises are charge- able with other or different principal sums than what appear on the face of the mortgage, or shall be admitted by the other side ; or to any case where the right to redemption shall be controverted or questioned by or between different defendants in the same cause ; or shall prejudice any subsequent incum- brance (s). By consent, an order staying proceedings on certain terms agreed on, may be obtained on motion of course, or on petition of course, or on special motion or petition, or on summons. Where any of the parties are not sui juris, or are executors or trustees, or a fund in Court is dealt with, or the terms are com- plicated, the application is usually made by special petition (t). Under section 24, sub-sections 5, 7, of the Judicature Act, 1873, the Court has jurisdiction, upon motion or summons, to stay all further proceedings in an action, in accordance with the terms of an agreement of compromise (w). And the Court refused to allow an action to be set down for trial after an (r) 22 & 23 Vict. c. 35, ss. 4—6. By 23 & 24 Vict. u. 126, ss. 2, 3, similar powers were given to the Superior Courts of Common Law. (s) 15 & 16 Vict. c. 76, ss. 219, 220. («) Dan. Pr. 696. (it) Eden v. Naish, 7 Ch. D. 781 ; Scully v. Lord, Dundonald, 8 Ch. D. 658. STAYING PROCEEDINGS. 487 agreement of compromise had been come to (v). Where such an agreement was alleged to have been obtained by the fraudulent concealment of a material fact, it was held that the question of the validity or invalidity of the agreement ought to have been tried in a new action, and not upon a summary applica- tion in the original action (tv). As to stay of proceedings after judgment in another action or After judg- proceeding for the same purpose, or where several actions are me ^ ln brought in which the same question is raised, see Chapter on action ; " Consolidation of Actions," post (p. 498). or vh f e When the parties to any instrument in writing executed after actions the passing of the Common Law Procedure Act, 1854, agree brou 8 llt - that any existing or future differences between them shall be par ties referred to arbitration, and any one or more of the parties so agree to agreeing shall, nevertheless, commence an action against the le ei- other party or parties, or any of them, in respect of the matters so agreed to be referred, the Court or a judge may, on the ap- plication of the defendant or defendants after appearance, and before [defence], make an order staying all proceedings in such action (x). An order nisi for a new trial operates as a stay of proceedings Order nisi in the action, unless the Court orders that it shall not be so as *°F , new trial. to the whole or any part of the action {y). An appeal does not operate as a stay of execution or of pro- Appeal, ceedings under the decision appealed from, except so far as the Court appealed from, or any judge thereof, or the Court of Appeal may so order (z). If the plaintiff's title to sue has since the judgment been put Where an end to, e.g., in an action for administration, by revocation P Ia i ntl ff's ' a . i tltle S one - and fresh grant of administration, all further proceedings may be stayed on the application of the person who has acquired the title to sue (a). Where an originating summons (b) has been filed without Originating (v) Staves r. Staves, 3 P. D. 42. (y) Ord. XXXIX. r. 5 ; and see \w) Gilbert v. Endean, 9 Ch. D. Goddardv. T/tompson, 26 W. R. 362. 259. (z) As to applications to stay pro- (x) 17 & 18 Vict. c. 125, s. 11. ceedings pending appeal, see p. 214. See Law v. Garrett, 8 Ch. D. 26 ; (a) Houseman v. Houseman, 1 Banddl v. Thompson, 1 Q. B. D. Ch. D. 535. 748 ; Moffat v. Cornelius, 26 W. R. (6) As to originating summonses, S14. see pp. 399, 400. 488 INTERLOCUTORY. AND INCIDENTAL APPLICATIONS. summons authority an application may be made to take it off the file, out autho- Such application should be made by summons, and not by rity. motion (c). Applioa- Except as before mentioned, the application for stay of pro- made ° W ceedings may be made by motion upon notice or by summons. The application should be supported by an affidavit of the facts. (c) Dan. Pr. 1051. CHAPTER IV. TRANSFER AND REMOVAL. (1.) Transfer from one Division to another, or from one judge to another of tlie Chancery Divisipn (a). If any plaintiff or petitioner assign his cause or matter to Where any division of the Court to which the same ought not to be cau . s , e or •>_ ° matter assigned (6), the Court, or any judge of such division, upon assigned being informed thereof, may, on a summary application at any *° Y™° s stage of the cause or matter, direct the same to be transferred to the division of the Court to which the same ought to have been assigned, or he may, if he think it expedient so to do, retain the same in the division in which the same was com- menced ; and all steps and proceedings whatsoever taken by the plaintiff or petitioner, or by any other party, in any such cause or matter, and all orders made therein by the Court, or any judge thereof, before any such transfer, will be valid and effec- tual to all intents and purposes, in the same manner as if the same respectively had been taken and made in the proper division of the Court to which such cause or matter ought to have been assigned (c). The application should be supported by an affidavit stating the cause of the action or proceeding. Any action or actions may be transferred from one division Transfer to another of the High Court, or from one judge to another of J? n } ° ne . ° ' j a Division to the Chancery Division, by an order of the Lord Chancellor ; another ; but no transfer may be made from or to any division without or . om J •* one judge the consent of the President of the Division (d). Where all to another parties consent, the Lord Chancellor will direct the transfer on chancery a written application, accompanied by the written consent of Division. (a) For forms, see Daniell's Forms, see p. 4. 3rd ed. 986—990. (c) 38 & 39 Vict. c. 77, s. 11 (2). (6) As to assignment of particular (d) Ord. LI. r. 1. matters to the Chancery Division, 490 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. all parties (e) ; if all the parties do not consent, an application upon notice given must be made to the Lord Chancellor (/). An order for transfer from one division to another is not effectual until the necessary consents of the Presidents of the Divisions have been obtained (g). Any action may, at any stage, be transferred from one Divi- sion to another by an order made by the Court, or any judge of the Division to which the action is assigned ; but no such transfer is to be made without the consent of the President of the Division to which the action is proposed to be trans- ferred (h). This rule applies only to transfers from one Division to another, and not to transfers from one judge to another of the same Division («'). The application must be made on notice (J) ; and may be made either to the Court or at Chambers (k). Where an action has been commenced in a Common Law Division, a defendant does not entitle himself to have the action transferred to the Chancery Division by insti- tuting a cross-action against the plaintiff in that Division, unless the two matters are so connected as to render it neces- sary that they should be tried together (I). "Where an action for breach of an agreement, and a cross-action for specific per- formance, were pending in the Exchequer and Chancery Divi- sions respectively, the former was transferred, in order that both might be consolidated in the Chancery Division, after issue joined in both actions (in). And where, in an action to rescind a contract for the sale and purchase of land and to recover the deposit paid, on the ground that the vendor had failed to make out a title, the defendant filed a counter-claim for specific performance, the action was ordered to be transferred from the Exchequer Division to the Chancery Division (re). After an order nisi to sign judgment obtained in the Exchequer Division against an executrix, but before judgment was signed, an administration order was made in the Chancery Division: Held, that the Exchequer action must be transferred, and that the (e) Mem. 1 Ch. D. 41. (i) HiUman v. Mayhem, 1 Ex. D. (/) Daniell's Forms, 3rd ed. 987. 132. () Ord. XXXV. r. 13. (a) Dyson v. Pickles, 27 W. E. 376. (y) Ord. XXXV. i. 14. TRANSFER AND REMOVAL. 493 the Court or a judge for an order to remove the action from a district London to any district registry, and such Court or judge may re S lstl T- make an order accordingly, if satisfied that there is sufficient reason for doing so, upon such terms, if any, as shall seem just (2). (3.) Removal of Causes and Matters from the High Court of Justice to a County Court (a). The provisions contained in the 7th section of the County 30 & 31 Courts Act, 1867 (30 & 31 Vict. c. 142), are to apply to all Vict, c actions commenced or pendiflg in the High Court of Justice, in which any relief is sought which can be given in a County Court (b). Section 7 of the County Courts Act, 1867, enacts that where, in any action of contract brought or commenced in any of the Superior Courts of Common Law, the claim indorsed on the writ does not exceed £50, or where such claim, though it originally exceeded £50, is reduced by payment, an admitted set-off, or otherwise, to a sum not exceeding £50, the defendant in the action may, within eight days from the day upon which the writ shall have been served upon him, if the whole or part of the demand of the plaintiff be contested, apply to a j-udge at Chambers for a summons to the plaintiff to show cause why the action should not be tried in the County Court, or one of the County Courts, in which the action might have been com- menced, and on the hearing of such summons the judge shall, unless there be good cause to the contrary, order such action to be tried accordingly. Under the above section the payment reducing the claim below £50 must be made before action. If, therefore, it be made after action the defendant has no right to remove the case into the County Court (c). Where an indorsement on the writ was for " £50 and interest " it was held that the action was not within section 7 (d). The action remains in the High Court until the writ and order remitting the action are lodged with the registrar of the County Court (e) ; but when this has (z) Ord. XXXV. r. 13. 48; Foster v. Usherwood, 3 Ex. D. 1. (a) For forms, see Daniell's Forms, (d) Insley v. Jones, i Ex. D. 16. 3rd ed. 992—995. (e) Welply v. Buhl, 3 Q. B. D. (6) 36 & 37 Vict. c. 66, s. 67. 80, 253. (c) Osbornz v. Homlurg, 1 Ex. D. 491. INTEKLOCTTTORY AND INCIDENTAL APPLICATIONS. been done, the effect is to transfer the action to the County Court altogether ; and the County Court named in the order has all the same powers and jurisdiction with respect to the action as if both parties had agreed, by a memorandum signed by them, that such County Court should have power to try the action, and the same had been commenced by plaint in such County Court (/). 30 & 31 The provisions contained in the 8th section of the County litl' 8. Courts Act ' 1867 ( 30 & 31 Vict c - 142 )' are t0 a PP lv t0 a11 actions commenced or pending in the High Court of Justice, in which any relief is sought which can be given in a County Court (g). Section 8 of the County Courts Act, 1867, enacts that where any suit or proceeding shall be pending in the High Court of Chancery which might have been commenced in a County Court, any of the parties thereto may apply, at Chambers, to the judge to whose Court the said suit or pro- ceeding shall be attached, to have the same transferred to the County Court, or one of the County Courts, in which the same might have been commenced, and such judge shall have power, upon such application, to make an order for such transfer, and thereupon such suit or proceeding shall be carried on in the County Court to which the same shall be ordered to be transferred. Concurrent The High Court has concurrent jurisdiction with the County jurisdic- Courts in matters within the equitable jurisdiction of the High Court County Courts (h) ; and a transfer will not be ordered in the ■with Coun- absence of any special reason (i). ty Courts. J r (4.) Removal of Causes and Matters from an inferior Court to the High Court of Justice (j). 28 & 29 By the County Courts Act, 1865 (28 & 29 Vict. c. 99), Vict. c. 99, g 2, any one of the Vice-Chancellors (k) upon the application, at Chambers, of any party to any suit or matter pending in a County Court under that statute, has power then and there, or, if he think fit, after hearing a summons served (/) 30 & 31 Vict. u. 142, s. 10. (j) For forms, seeDaniell's Forms, (ff) 36 & 37 Vict. c. '66, s. 67. 3rd ed. 995—999. (h) Scotto v. Heritage, 3 Eq. 212 ; (k) Noiv, any judge of the High Brown v. Rye, 17 Eq. 343. Court. See 36 & 37 Vict. c. 66, s>. (i) Picard v. Hine, 18 L. T. 705. 16, 39. TRANSFER AND REMOVAL. 495 upon the'other party or parties, to transfer such suit or matter to the [Chancery Division], upon sxich terms, if any, as to security for costs or otherwise, as he may think fit. The application is by summons, and should be supported by an affidavit showing the circumstances which render the transfer necessary or desirable. By the Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 90, it 334 37 is enacted that where, in any proceeding before an inferior s 9 q ^ Court having jurisdiction in equity, or at law and in equity, any defence or counter-claim of the defendant involves matter beyond the jurisdiction of the Court, such defence or counter- claim is not to affect the competence, or the duty, of the Court to dispose of the whole matter in controversy so far as relates to the demand of the plaintiff and the defence thereto, but no relief exceeding that which the Court has jurisdiction to administer is to be given to the defendant upon any such counter-claim ; but in such case the High Court, or any Divi- sion or judge thereof, may, if it be thought fit, on the applica- tion of any party to the proceeding, order that the whole proceeding be transferred from such inferior Court to the High Com-t, or to any Division thereof; and in such case the record in such proceeding is to be transmitted by the Kegistrar, or other proper officer, of the inferior Court to the High Court ; and the same is thenceforth to be continued and prosecuted in the High Court, as if it had been originally commenced therein (I). The application under this section may be by motion or by an originating summons (m), and in either case it seems that it should, at least in the first instance, be made ex parte. The application should be supported by an affidavit stating the counter-claim, and showing that it involves matter beyond the jurisdiction of the inferior Court (w). By the County Courts Act, 1846 (9 & 10 Vict. c. 95), 9 & 10 s. 90, no plaint entered in any Court holden under that J 1 "*- c- 95 ' Act is to be removed or removable from the said Court into any superior Court of record by any writ or process, unless the debt or damage claimed exceeds £5, and then only by leave of a judge of a superior Court, in cases which appear to the judge fit to be tried in a superior Court, and (Z) See on this section, Davis v. (»n) As to originating summonses, Flagstaff Silver Mining Co., 3 C. P. see pp. 399, 400. D. 228, 234. (») Daniell's Forms, 3rd ed 996. 496 INTEELOCUTOEY AND INCIDENTAL APPLICATIONS. 19&20 Vict, o, 108, ». 38. Applica- tion for certiorari. Stay of proceed- Applica- tion that action be retained and prose- cuted in the High Court. Issue and service of writ. Notice. upon such terms as to payment of costs, giving security for debt or costs, or sugh other terms as the judge shall think fit. By the " Act to amend the Acts relating to the County Courts" (19 & 20 Vict. c. 108), s. 38, an action commenced in a County Court for a claim not exceeding £5, may be removed by certiorari into a superior Court, if such superior Court or a judge thereof deem it desirable that the action should be tried therein, and if the party applying for the writ give security for the amount of the claim and the costs of the trial, not exceed- ing in all £100, and further assent to such terms, if any, as the superior Court or judge may think fit to impose. . The application for a certiorari may be made ex parte ; and may be made either to the Court or at Chambers. When made at Chambers it must be by originating summons (o). In the Chancery Division it is usual to entitle the application in the matter of the proceeding in the inferior Court ( p). Where, on the hearing of an ex parte application, the Court or judge directs an order or summons to show cause to be served, he may stay the proceedings in the County Court in the meantime (cj). As the order for the certiorari to issue will not be made, under either the 9 & 10 Vict. c. 95, s. 90, or the 19 & 20 Vict. c. 108, s. 38, unless the judge is satisfied that the action ought to be tried in the High Court, it seems proper to include in the application, an application that the action when removed may be retained and prosecuted in the High Court ; by this means the expense of an application after the writ is returned is saved (r). The writ should be engrossed on parchment. On sealing it the order giving leave to issue it must be produced (s). The prcecipe must bear a stamp of 10s. on the higher, or 5s. on the lower scale, impressed upon it (t). The writ should be served on the judge of the County Court, or on the Registrar thereof, or upon a person acting as clerk at the office of the Registrar (m). A party who has issued a writ of certiorari to the judge of a (o) Daniell's Forms, 3rd ed. 997. As to originating summonses, see pp. 399, 400. (p) Seton, 4th ed. 335. (q) 19 & 20 Vict. t . 108, s. 40. (r) Daniell's Forms, 3rd ed. 993. (s) Id. 769. (t) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord. as to Fees, April, 1876, Sched. (u) Chitty's Arch., 1321. TRANSFER AND REMOVAL. 497 County Court ex parte, must give notice thereof to the opposite party two clear days before the day fixed for hearing the cause in the County Court, otherwise he may be ordered to pay the costs of the day (v). The certiorari is obeyed by returning the record of the action Return of formally made up. If the judge does not return the writ and wnt- record, an application should be made for an order upon him to do so (m>). When the writ has been returned, and the action thus removed into the superior Court, the defendant should enter an appearance in the High Court in the action removed, and the action then proceeds according to the practice of the High Court (x). If, during the progress in a County Court of any suit or Order for matter, it appears that the subject-matter thereof exceeds the P roceei1 : ,....„ , . , mgsto be limit in point of amount to which the jurisdiction of County carried on Courts is limited by the County Courts Act, 1865 (28 & 29 c 01 frt Unty Vict. c. 99), any party thereto may apply, at Chambers, to notwith- such Vice-Chancellor as the Lord Chancellor may, by general staudln S order, direct, for an order authorising and directing the suit or beyond matter to be carried on and prosecuted in the County Court, j urisdl °" notwithstanding such excess ; and the Vice-Chancellor, if he deem it right to summon the other parties, or any of them, to appear before him for that purpose, after hearing such parties, or on default of the appearance of all or any of them, has full power to make such order (y). Applications under this section must be made to the Vice-Chancellor Malins (z), by originating summons (a). (v) 19 & 20 Vict. u. 108, ». 41. (z) Ord. of Court, 17th Ap. 1871. (w) Chitty's Arch., 1313, 1321. (a) As -to originating summonses, (x) Daniell's Forms, 3rd ed. 999. see pp. 399, 400. (y) 28 & 29 Vict. c. 99, s. 9. CHAPTEE V. Meaning of "Consoli- dation of actions." Practice. Applica- tion to con- solidate. Transfer before con- solidation. CONSOLIDATION OP ACTIONS (a). The term, consolidation of actions, is used in two senses. First, if a plaintiff brings tw^, actions against the same de- fendant, for matters which might properly be combined in one action, and the double proceeding is shown to be vexatious, the Court, in the exercise of its ordinary power to prevent any abuse of its own process, will consolidate the actions ; that is to say, will stay proceedings absolutely in one action, and re- quire the plaintiff to include the whole of his claims in the other ; and this has been done with costs as against the plaintiff. But the term consolidation is more frequently used in a different sense. - Where actions are brought by the same plaintiff against different defendants, but the questions in dispute in all are sub- stantially the same, the Court will, on the application of the defendants, stay proceedings in all the actions except one until that one action has been determined, upon the terms that the various defendants agree to be bound by the event of the action which proceeds (6). Actions may be consolidated by order of the Court or a judge in the manner formerly in use in the Superior Courts of Common Law (c). The application may be made immediately after appearance ; and should be entitled in all the actions (d). Where the actions have been assigned to different divisions of the Court, or to different judges of the Chancery Division, there must, before the application to consolidate is made, be a transfer of all the actions to the same division, or the same (a) For forms, see Daniell's Forms, 3rd ed. 948—951. (6) Wilson, 2nd ed. 303, 304. (c) Ord. LI. r. 4. (d) Chitty's Arch. 1360. CONSOLIDATION OF ACTIONS. 499 judge of the Chancery Division, and the application to con- solidate is then made to the division to which, or the judge to whom, all the actions are attached (e). Where seventy-eight similar actions had been commenced Test ac- against the same defendant by different plaintiffs the Court tlons ' refused to consolidate them at the request of the plaintiffs ; but directed two to proceed as test actions, and stayed proceed- ings meanwhile in the others (/). And where one of several actions was ordered to be tried as a test action, and judgment went by default, another action was substituted as a test action ( or a * an y subsequent time not later than the close of the tories may pleadings, and a defendant may, at the time of delivering his vered " defence, or at any subsequent time not later than the close of the pleadings, without any order for that purpose, and either party may at any time, by leave of the Court or a judge, deliver in- terrogatories in 'writing for the examination of the opposite party or parties, or any one or more of stich parties, with a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer ; but no party may deliver more than one set of interrogatories to the same party without an order for that purpose (6). In the Chancery Division a plaintiff may deliver interrogatories before delivery of de- fence (c) ; but interrogatories delivered before defence may be struck out under r. 5, unless there be some special reason for delivering them at that stage (d). The Court will not usually make an order allowing the defendant to deliver interrogatories before defence («). Interrogatories will not be allowed after the pleadings are closed, unless the delay in administering them is satisfactorily explained (/). Leave was given to a defendant after the close of the pleadings to serve interrogatories within two days, although there had been undue delay ; the trial of the action not to be delayed if they were not answered in time, and costs to be costs in the cause (g). (a) For forms, see Daniell's Forms, (e) Disney v. Longbowrne, 2 Ch. 3rd ed. 908—918. . D. 704. See, however, Harbord v. (b) Ord. XXXI. r. 1. Monk, sup. (c) Harbord-r. Monk, 9Ch.D.616. (/) ElMm. Ambler, 25 W.K.557. {d) Merrier v. Cotton, 1 Q. B. D. (g) London and Provincial M. J. 442; Hancochv.Chierin,27 ^W.E.112. Co. v. Davies, 5 Ch. D. 775. DISCOVEKY. 501 The Court in adjusting the costs of the action will at the Costs of instance of any party inquire or cause inquiry to be made into "y ei T n " the propriety of exhibiting such interrogatories, and if it is the interroga- opinion of the taxing-master or of the Court or judge that such t01lesi - interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interro- gatories and the answers thereto are to be borne by the party in fault (/*). The taxing officer is to inquire into the matters \ referred to in this rule, whether specially ordered or not (i). If any party to an action be a body corporate or a joint stock Delivery of company, whether incorporated or not, or any other body of J nt ? rr °g a " persons, empowered by law 'to sue or be sued, whether in its case of a own name or in the name of any officer or other person, any cor P oratlon opposite party may apply at Chambers for an order allowing pany. him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly (J). The name of a member or officer of a corpora- tion made a party for the purpose of discovery only will be ordered to be struck out (F). Upon the hearing of the sum- mons the only question which will be gone into is the fitness of the member or officer named in the summons to give discovery; the interrogatories proposed to be delivered will not be looked at, nor their propriety considered (I). An application to set aside interrogatories on the ground AppHca- that they have been exhibited unreasonably or vexatiously, or tio J\ to set to strike out any interrogatory or interrogatories on the ground strike out that it or they is or are scandalous, may be made at Chambers j n * ea ' r ° sa ' within four days after service of the interrogatories (rn). In- terrogatories delivered after a demurrer to the whole of the statement of claim has been delivered, and whilst it is pend ing will be set aside ; for, as tne~3emurrer admits all the facts properly pleaded by the plaintiff in his statement of claim, the plaintiff has no right to discovery (n) ; and while a demurrer (A) Ord. XXXI. i. 2. J. (C. P.) 112 ; Rep. of Liberia v. (i) Kules as to Costs, "Special Roye, 1 App. Cas. 139. Allowances," &c, r. 18. Qc) Wilson v. Church, 9 Ch. D. 552. (j) Ord. XXXI. i. 4. As to the (I) Berkeley*. Standard Discount member or officer who Ehould be Co., 9 Ch. D. 643. interrogated, see MacFadzen v. Corp. (m) Ord. XXXI. r. 5 (Rules, Nov. of Liverpool, 3 Ex. 279 ; Corp. of 1878, v. 3). Hastings v. Ivall, 8 Ch. 1017 ; (n) Dan. Pr. 466, 1689 j Seton, Brawn v. Thames, ). In the form of affidavit, the paragraphs numbered 2, 3, and the sub-division of the first schedule are necessary only where the party making the affidavit claims privilege for any of his documents ; the paragraphs numbered 4, 5, 6, and the second schedule are necessary only where the party has parted with documents relating to the matters in question. The affidavit (?) Orel. XXXI. r. 19. 112 ; MacFacken v. Corp. of Liver- (r) Wood v. Anglo-Italian Bank, pool, 3 Ex. 279 ; Corp. of Hastings 34 L. T. 255 ; Bowcliffe v. Le'vjh, 6 v. Ivall, 8 Ch. 1017 ; Rep. of Liberia Ch. D. 256. v. Boye, 1 App. Ca. 139. (s) Can. Pr. 1677. («) Ord. XXXI. r. 13. For form (t) See Dan. Pr. 1677 ; Seton, 4th of affidavit, see Darnell's Forms, 3rd ed. 150 ; and compare with Ord. ed. 922. XXXI. r. 4, p. 501. As to the (i>) Welsh Steam Collieries v. officer or member by whom the am- Gaskell, 36 L. T. 352 ; Johnson v. davit should be made, see Brown v. Smith, 25 W. K. 539 ; Taylor v. Thames, &c, Co., 43 L. 3. (C. P.), Batten, 27 W. E. 106. 510 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. General rule as to production. Where other per- sons inte- rested. Procedure where affi- davit in- formal. must specify all the documents which the deponent has in his possession or power, relating to the matters in question, even though he claim privilege for them ; but any identification of documents which is sufficient to enable the Court to order their production is sufficient. Thus, where documents were described as "numbered from 30 to 70 and tied up in a bundle and initialed," this was held a sufficient description ; so, a defendant in an action for the recovery of the possession of land, when making discovery of his title deeds, need only say that he has in his possession certain title deeds numbered consecutively, and give the numbers (w). If the deponent objects to produce any documents, the affidavit must state, clearly and distinctly, the reasons or objections against production, and must verify the facts upon which such reasons or objections depend (x). The general rule is, that all documents relating to the matters in question in the action must be produced (y) ; but a party may resist the production of documents upon the same general grounds upon which he may resist giving any other discovery (z). It is not a valid ground for resisting production of documents that other persons not parties to the suit have an interest therein ; but a party cannot be required to produce documents which are in the joint possession of himself and other persons not parties, for the reason that it is not in his power to produce such documents ; but in such a case the party may be compelled, by means of interrogatories, to discover the contents of the documents (a). In an action on a marine policy a party may be required to produce documents in the possession of persons not parties to the action (&). Where the affidavit is informal by reason of its not contain- ing a clear admission or denial of the possession of documents, or a sufficient description of them, or otherwise, a summons to consider the sufficiency of the affidavit should be taken out ; if the affidavit is held to be insufficient, the order merely ex- (w) Daniell's Forms, 3rd ed. 922, citing Taylor v. Batten, 27 W. R. 106 ; Fortescue v. Fortescue, 24 W. R. 945 ; Taylor v. Oliver, 34 L. T. 902 ; New British M. I. Co. v. Peed, 3 C. P. D. 198. (x) Daniell's Forms, 3rd ed. 923 ; Dan. Pr. 1679. {y) Dan. Pr. 1687. (2) Daniell's Forms, 3rd ed. 923. As to grounds for resisting discovery, see pp. 503—505. (a) Kettleaell v. Barstow, 7 Ch. 686 ; HadUy v. McDowjall, 7 Ch. 312 ; Dan. Pr. 1684—1686. (6) West of England, &c., District Bank v. Canton Insurance Co., 2 Ex. D. 472. DISCOVERY. 511 presses the judge's opinion to that effect, and the effect of this is that the party who is ordered to make the affidavit is con- sidered not to have complied with the order, and may be proceeded against accordingly (c). The deponent cannot be cross-examined upon his affidavit as Where to documents (d) : nor can evidence be adduced to contradict docum f n t s . v suspected it (e). If the party seeking discovery suspects that any docu- of being in ments have been kept back, as a rule his only course is to party' 8 . .. >■/,-/., . , , possession interrogate upon the point (/) ; but if there is anything in the are not affidavits or pleadings of the party making the affidavit as to admitted documents, throwing discredit upon that affidavit, then, but affidavit, not otherwise, the party seeking discovery may apply for an order requiring the other party to make a further affidavit as to the possession of the documents which from his pleadings or affidavits appear to be in his possession (g). It is not necessary that there should be an express admission in the other affidavits or pleadings of the party, of the possession of relevant documents, not admitted by his affidavit as to docu- ments; it is sufficient if the judge be satisfied, by inference from statements in such other affidavits or documents, that the party has in his possession relevant documents, not admitted by his affidavit as to documents (A). As to consequences of failure to comply with- an order for Failure to discovery, see Ord. XXXI. r. 20 (p. 506). wnl^rde- (3). Discovery by Inspection of Documents (i). Every party to an action or other proceeding is entitled, at Notice to any time before or at the hearing thereof, by notice in writing, P roduoe to give notice to any other party, in whose pleadings or affida- for inspec- vits reference is made to any document, to produce such docu- taon * ment for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof; and any party not complying with such notice may not after- (c) Dan. Pr. 1680. (g) Noel v. Noel, 1 D. J. S. 468 ; (d) Dan. Pr. 1680 ; Seton, 4th ed. Wright v. Pitt, 3 Ch. 809 ; Saull v. 149. Browne, 17 Eq. 402 ; Dan. Pr. 1681 ; (e) Wood, V.-C, in NewaU v. Seton, 4th ed. 149 ; DanielPs Forms, Telegraph Construction Co., 2 Eq. 3rd ed. 925. 756, at p. 762. {h) Saull v. Browne, tup. (/) Newall t. Telegraph Construe- (i) For forme, see Darnell's Form?, tion Co., 2 Eq. 756. 3rd ed. 927—942. 512 -INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Copies and extracts. Order for determina- tion of question or issue. Notice that documents are ready for inspec- tion. Where matter partly irrelevant. wards put any such document in evidence on his behalf in such action or proceeding, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the action, or that he had some other sufficient cause for not complying with such notice (J). - The party giving the notice is entitled to take copies of or extracts from the documents, for which he must pay the solicitor of the party producing the documents at the rate of Ad. per folio ; but if such solicitor refuses or neglects to supply such copies or extracts, then the solicitor requiring the same will be at liberty to make them, and the solicitor for the party producing will not be entitled to any fee in respect thereof (k). No costs will be allowed in respect of any notice or inspection, unless it be shown to the satisfaction of the taxing officer that there were good and sufficient reasons for giving such notice or making such inspection (I). As to order for determination of a question or issue in dis- pute in the action before deciding the right to inspection, see Ord. XXXI. r. 19 (p. 502). The party to whom notice is given under Ord. XXXI. r. 14, must, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in r. 13 (m), or if any of the documents referred t j in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, and stating which (if any) of the documents he objects to produce, and on what ground (»). If any of the documents relevant to the matters in question contain also matter not relevant, or matter which the party producing the documents claims to be privileged from-produc- tion, the party may not mutilate the documents by cutting out the irrelevant or privileged matter, but should apply for leave to seal up such parts as, by affidavit, he shall swear do not {j) Ord. XXXI. r. 14. (k) Rules as to Costs, Sched., " Special Allowances," r. 16. (I) Id. t. 15. (m) See p. 509. (n) Ord. XXXI. r. 16. As to grounds for resisting discovery, see pp. 503—505. D1SC0VEKY. 513 relate to the matters in question, or are privileged (o). An affidavit must be made as to the.sealing up of the irrelevant or privileged matter ; and the documents should be exhibited (p.) If the party served with notice to produce documents omits Applica* to give notice of a time for inspection as above mentioned, or . n ™ objects to give inspection, the party desiring it may apply to a where judge for an order for inspection (q) ; and except in the case of J* 08 , documents referred to in the pleadings or affidavits of the inspection party against whom the application is made, or disclosed in his not . S 1Ten >' r J ° rr ' or mspee- affidavit of documents, such application must be founded upon tion ob- an affidavit showing of what^ documents inspection is sought, J eoted t0 - that the party applying is entitled to inspect them, and that they are in the possession or power of the other party (r). In actions on marine policies, a party may apply for an order for the inspection of documents in the possession, custody, or power of persons not parties to the action (s). Notwithstand- ing a reference to a referee, the application should be made to the judge (f). A judge has no discretionary power to refuse inspection by one party to the action of documents relating to the matters in question, in the possession or power of another party, except on the ground of privilege ; the party has a right to such inspection where no privilege can be established (it). Where any party has by his affidavit as to documents (v), or Summons' by a notice under Ord. XXXI. r. 16 (w), claimed, on any l^ 1 ^" ' ground, to protect from production documents relating to the withstand-- matters in question, and the opposite party considers he is !? g ob J ec ' entitled to have such documents produced, the proper form of raising the question is by taking out a summons for their production notwithstanding the objection (x). It is a not uncommon practice at the judges' Chambers, upon questions of discovery, by consent to show the documents in question to (o) Dan. Pr. 1681, 1682 ; Seton, (t) He Leigh, Sowcliffe v. Leiyh, 4th ed. 155, 156. 4 Oh. D. 661. (p) See Daniell's Forms, 3rd ed. («) Bustros v. White, 1 Q. B. D. 929. 423 ; and see English v. Tottie, 1 Q. (q) Ord. XXXI. r. 17. As to B. D. 141, 144. As to grounds for service of the order on the solicitor of resisting discovery, see pp. 503 — 505. the party, see pp. 506, 507. (v) See p. 509. (r) Ord. XXXI. r. 18. (w) See p. 512. (*) West of England, &c, District {x) See Dan. Pr. 1679, 1680; Bank T. Canton Insurance Co., 2 Daniell's Forms, 3rd ed. 932. Ex. D. 472. L L 514 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. To whom documents must be produced. Copies and extracts. Costs. Power of Court to deal with documents. Applica- tion for deposit of documents in Court. Regula- tions as to deposit of documents in Court. the judge, and take his decision thereupon. Where this is done, no appeal lies from his order (y). An order for production to a party, his solicitors, and agents, means only to the solicitors in the action, and persons profes- sionally connected with them, or the general agents of the party, and does not compel production to an accountant or agent specially employed for the particular purpose of inspect- ing the documents ; but, if necessary, an order will be made directing production to such a special agent (z). As to taking copies and extracts, and as to costs of inspec- tion, see pp. 511, 512. The Court may deal with documents relating to the matters in question in the action which are in the possession or power of any party to the action in such manner as appears just (a). The Court of Chancery had formerly a similar power (b) ;. but the practice in that Court was to order inspection simply of the documents, without removing them from the possession of the party in whose possession it found them, unless some special ground were shown by the opposite party for ordering the documents to be deposited in Court (c). The rules of the Supreme Court (d) seem to show that, as a general rule, inspection of documents will take place without altering their custody ; it would appear, therefore, that an application to have documents deposited in Court should be supported by an affidavit showing some necessity or reason for securing the safe custody of the documents in that manner (e). When any documents are ordered to be left or deposited, they must be ordered to be left or deposited with the proper Master of the Supreme Court (/ ), or in the office of a District Regis- trar (g). An order has, however, been made that documents should be produced to and left with the Chief Clerk (/»). On depositing the documents, the original order should, if possible, be produced ; and, in every case, a copy of the order and a schedule of the documents must be left at the time the deposit is made. The documents must be made up in a parcel, or (y) Bustros v. White, 1 Q. B. D. 423. (2) Dan. Pr. 1696, 1697. (a) Ord. XXXI. r. 11. (6) 15 & 16 Vict. c. 86, ss. 18, 20. (c) Dan. Pr. 1696. (d) Ord. XXXI. rr. 14, 16, 18. (c) Daniell's Forms, 3rd ed. 935. (/) Cons. Ord. XLII. r. 3 j 42 & 43 Vict. c. 78. (g) 36 & 37 Vict. c. 66, s. 66. (A) Cfroves r. Groves, V. C. W. 13th Dec, 1853, Reg. Lib. A. 585 ; Seton, 4th ed. 140. DISCOVERY. 515 enclosed in a wooden or tin box ; and the short title of the action, and the name and address of the solicitor or party making the deposit, must be written on the parcel or box. Strong brown or cartridge paper should be used for the parcel. Where the parcel would exceed about twelve inches in length and width, and ten in depth, or fifteen in length, twelve in width, and six in depth, a box will, in general, be required. The box must have a lock and key ; and the key should have a parchment label : with the short title of the action, and the name of the solicitor or party written thereon (i). The docu- ments, when deposited, are subject to such directions as maybe given for the production thereof (j). ' Inspection of documents deposited under an order will be Inspection refused, as well to the parties depositing the documents, as to °- t d ? p f" a plaintiff or defendant : unless he is suing in person, or is ments. introduced by his solicitor. Where liberty to inspect is given in the ordinary form, the party entitled to inspect may do so in the absence of the party depositing the documents ; where, therefore, it is desired that this practice should be modified, the order should be qualified accordingly (k). On inspection of documents deposited in Court a fee is pay- Fees, able of 2s. 6d. for each hour or part of an hour occupied, not exceeding on one day 10s. The fee is payable by stamps im- pressed upon a form provided in the office (I). The party in- Copies, specting may, however, make copies of or extracts from the documents without payment of any further fee (m). If documents deposited in Court are afterwards required to Production be produced upon any examination of witnesses in the action or ™ n °fj e . at the trial thereof, the officer will, if the order for the deposit posited in of the documents be drawn up in the ordinary form, attend ^j^ 011 with them on request, on a memorandum bespeaking his at- tion of tendance being left with him, and on payment of his fee. If ^^ production be sought on any other occasion an order must be trial, obtained for the officer to attend. The order may be obtained on motion of course, or on petition of course at the Bolls, supported by an affidavit that the production of the documents is necessary for the purposes of evidence (n). In the absence of special circum- (i) Dan. Pr. 1698. 1875, Sched. ; Ord. as to Fees, April, {j) Cons. Ord. XLII. r. 3. 1876, Sched. (k) Dan. Pr. 1698. (m) See Dan. Pr. 1698. II) Ord. as to Court Fees, Oct., (») Daniell's Forms, 3rd ed. 937. L L 2 516 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. stances, documents deposited in Court will not be allowed to be taken out of the jurisdiction (o). On bespeaking the attendance of the officer a fee is payable (in addition to the reasonable ex- penses of the officer) of, for each day or part of a day that he is necessarily absent from his office, £1 ; and the officer may require a deposit of stamps on account of any further fees, and a deposit of money on account of any further expenses, which may probably become payable, beyond the amount paid for fees and expenses on the application, and the officer or his clerk taking such deposit must make a note thereof on the memo- randum bespeaking his attendance ; the officer may also require an undertaking in writing to pay any further fees and expenses which may become payable beyond the amounts so paid and de- posited (p). The fee for the first day's attendance is to be denoted by a stamp either impressed upon or adhesive to the memoran- dum, and if the officer's attendance be required beyond one day, the additional fee per diem, after the first day, is to be taken by means of a praecipe with the stamp impressed thereon, filed in the department from which the officer is summoned (q). Where a deposit is required, the following regulations are to be observed: (1) The party or his solicitor from whom the deposit is required must present for the signature of the officer requiring the same, a certificate duly stamped for the amount of the deposit. Forms of certificate may be obtained at the Inland Revenue Office, Somerset House, and at other places appointed by the Commissioners of Inland Revenue. (2) When the fees and expenses are ascertained, the officer by whom the deposit was required must indorse upon the certificate the amount so ascertained. (3) If the amount is in excess of the deposit, the certificate bearing an additional stamp equal to the excess must be produced to the officer. (4) If the amount of fees and expenses is less than that of the deposit the holder of the certificate may obtain repayment of the difference upon presenting the certificate endorsed as above mentioned at the Inland Revenue Office, Somerset House (r). Delivery When the purpose for which the documents have been de- documents. P osited iu Court is satisfied, the person who has deposited them (o) Lafone v. Falkland Islands (q) Ord. as to Fees, April, 1876, Co., 4 K. & J. 39. Sched. (p) Ord. as to Court Fees, Oct., (r) Ord. as to Fees, April, 1876. 1875, Soiled. DISCOVERY. 517 is entitled to have them delivered out to him. An order is, however, necessary : which may be obtained on motion or sum- mons with notice ; or, by consent, on petition of course. A copy of the order, or of so much thereof as directs the delivery out, with a receipt signed by the person to whom the delivery out is directed to be made, and witnessed, must be left, and the original order must be produced, at the Central Office, at the time the application for the delivery out is made (s). It is not necessary that the party to whom the documents are ordered to be delivered should personally attend at the Central Office [or the District Registry, as the case may be] to receive them ; nor is a power of attorney necessary to authorise another person to receive them on his behalf. If the documents to be delivered out comprise part only of the documents deposited in the action, then the documents to be delivered out must be selected by the solicitor, and compared by the Master of the Supreme Court [or the District Registrar, as the case may be] with the order directing the delivery, and afterwards handed to the person ap- plying for them. In such case, the Master of the Supreme Court [or District Registrar] will retain the box or parcel con- taining the rest of the documents in the action, and place therein the copy order, and receipt ; and will make an entry in the Exhibit Book that the other documents have been delivered out (t). As to consequences of failure to comply with an order for the Failure to production of documents for inspection, see Ord. XXXI. ^Jf 1 ^ r. 20 (p. 506). for produc- tion. (4.) Discovery by Inspection of Property (u). The Court or judge may, upon the application of any party Power to to an action, and upon such terms as may seem just, make any j 3 ™^ ™ order for the inspection of any property, being the subject of order in- such action, and for that purpose may authorise any person or potion, persons to enter upon or into any land or building in the pos- session of any party to such action, and may authorise any samples to be taken, or any observation to be made or experi- ment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence (v). («) Dan. Pr. 1699. 3rd ed. 943-947. (t) Daniell's Forma, 3rd ed. 941. (») Ord. LIT. r. 3. (u) For forms, see Daniell's Forms, 518 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Similar jurisdic- tion of Court of Chancery. Mineral trespass. Infringe- ment of letters patent. The Court of Chancery, under its similar jurisdiction, would not grant an inspection on the application of the plaintiff, unless satisfied that he had a case to be tried at the hearing ; nor in any case unless the inspection asked for was necessary for the purpose of enabling the party applying for it to prove his case (w). In a nuisance action, an application to inspect the defendant's works to ascertain how the nuisance was oc- casioned was refused, as proof of the nuisance could be obtained from external sources (%). Upon a prima facie case of mineral trespass or encroachment by the defendant, or where the fact of trespass (which is denied) can only be ascertained by inspection, and no injury will result to the defendant therefrom, an interlocutory order will be made for the inspection of his mine ; and the order will, when neces- sary, extend to the removal of obstructions to the inspec- tion (y). The rule in actions for the infringement of letters patent is, that where a plaintiff is unable to obtain clear and satisfactory evidence of infringement, the Court, upon a fair prima facie case being made out, will order the defendant to permit an inspec- tion to be made of his premises and machinery, by proper persons named on behalf of the plaintiff (z). (w) Piggott v. Anglo-American Td. Co., 19 L. T. 46; Batley v. Kynock, 19 Eq. 90. (x) Barlow v. Bailey, 18 W. R. 783. {y) Seton, 4th ed. 208, and cases there cited. (z) Id. 351, and cases there cited. CHAPTEE VII. APPLICATION FOR ORDER FOR INQUIRIES AND ACCOUNTS (a). The Court or a judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner (b). The inquiries and accounts will in general be made and taken by the Chief Clerk (c) ; but they may be ordered to be made and taken before a District Registrar (d) ; or before an official or special referee (e). Power to Court or judge to direct in- quiries or accounts. By whom made and taken. {a) For form of notice of motion or summons, see Daniell's Forms, 3rd ed. 321. (J) Ord. XXXIII. See Twrquand v. WU»on, 1 Ch. D. 85. (c) 15 & 1G Tict. c. SO, s. 29 : Cons. Ord. XXXV. it. 33, 46. See Part V. (eZ) 36 & 37 Tict. c. 66, s. 66. (e) Id. s. 57. CHAPTEE VIII. SPECIAL CASE. May be stated after issue of writ. How pre- pared. Court or judge may direct a case to be stated. (1.) When stated by the parties to an action tinder Ord. XXXIV. of the Rules of the Supreme Court (a). The parties may, after the writ of summons has been issued, concur in stating the questions of law arising in the action in the form of a special case for the opinion of the Court. Every such special case must be divided into paragraphs numbered consecutively, and must concisely state such facts and docu- ments as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of such case the Court and the parties may refer to the whole contents of such documents, and the Court may draw from the facts and docu- ments stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial (&). If it appear to the Court or a judge, either from the state- ment of claim or defence or reply or otherwise, that there is in any action a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the Court or judge may make an order accord- ingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or judge may deem expedient, and all such* further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed (c). The applica- tion may be made immediately after appearance ; but, in that case, it must be shown by affidavit or otherwise that there are no facts in dispute, but only a question of law, or that there is (a) For forms, see DanieU's Forms, 3rd ed. 438—443. (6) Ord. XXXIV. t. 1. (c) Id. r. 2. SPECIAL CASE. 521 a question of law in the action which will render the determi- nation of the disputed facts unnecessary (d). An order under r. 2 is in the discretion of the judge, and the Court of Appeal will not interfere, except in a very strong case (e). Under Ord. XXXIV., only such questions of law can be Whatques- raised for the decision of the Court as must necessarily arise in ^™.™^ the action (/ ). Every special case must be printed by the plaintiff, and Printing, signed by the several parties or their solicitors, and must be ^J^f' filed by the plaintiff. Printed Copies for the use of the judges must be delivered by the plaintiff (jr). The special case need not, however, be signed by counsel (h). On filing a special case a fee of 10s. on the lower and £1 on Fees. the higher scale is payable by a stamp impressed, where prac- ticable, on the special case, and in other cases on a -praecipe to be filed (i). Before a special case is set down for argument, an order Amend- giving leave to amend it may by consent of all parties be ment - obtained on motion or petition of course. Where all parties do not consent, or where the case has been set down for argument, a special order must be obtained on motion or summons on notice (j). The draft of the case as amended must be signed by the parties or their solicitors ; and if the amendments do not extend in any one place to more than 144 words, the officer with whom the case has been filed will insert the amendments in the original case on the draft amended case being left with him, together with a praecipe ; if the amendments exceed this limit, a new print must be filed. The order to amend must be produced to the officer (/:). No special case in an action to which a married woman, Where infant, or person of unsound mind is a party can be set down ^""dis- for argument without leave of the Court or a judge, the appli- ability are cation for which must be supported by sufficient evidence that l )artles - the statements contained in such special case, so far as the (d) Met. Board of Works v. New 44. River Co., 1 Q. B. D. 727. (*) Ord as to Court Fees, Oct., (e) Id. 2 Q. B. D. 67. 1875, Sched. ; Ord. as to Fees, April, (/) Reg. of Bolivia v. National 1876, Sched. Bolivian Nav. Co., 24 W. K. 361. ( j) Dan. Pr. 1704. (ff) Ord. XXXIV. r. 3. (i) Id. 1705. (Ji) Mare v. Bare, W. N. (1876), 522 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Entry for argument. Fees. Brief. Effect of order on argument. Before whom to be argued. &£&£* In what cases and by whom a case may be stated under 13 & 14 Vict. c. 35. same affect the interest of such married woman, infant, or person of unsound mind are true (£). In a case stated under 13 & 14 Vict. c. 35, s. 13 (m) counsel's statement was accepted as sufficient evidence (n). Either party may enter a special case for argument by delivering to the proper officer (o) a memorandum of entry, and also if any married woman, infant, or person of unsound mind be a party to the action, producing a copy of the order giving leave to enter the same for argument ( p). On entering the special case for argument a fee of £1 on the lower and £2 on the higher scale is payable by a stamp im- pressed upon the memorandum (q). The Brief should consist of a copy of all the pleadings (if any) in the action, a copy of the special case, copies of any material documents not fully stated in the pleadings or the special case, and of such observations as may be necessary and proper (r). The order made on the argument of the special case, or of the question of law, merely declares the opinion of the Court on the questions of law raised (s) ; the party who, upon the decision of the questions, is entitled to judgment, must obtain such judgment by moving for it (t). A special case must be argued before a single judge, unless all parties agree otherwise ; when it will be heard by a divi- sional Court (m)., Under 13 & 14 Vict-jf 35 (»). By 13 & 14 Vic/, c. 35, s. 1, it is provided that it shall be lawful forepersons interested or claiming to be interested, in any question cognisable in the Court, as to the construction of any Act of Parliament, will, deed, or other instrument in writing, or any article, clause, matter or thing therein contained, or as to the title or evidence of title to any real or personal (I) Ord. XXXIT. r. 4. (m) See Section 2 of this Chapter. (») Elwes v. Elwes, 20 W. K. 4S0. (o) I.e., the Registrar. (p) Ord. XXXIV. r. 5. (g) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord. as to Fees, April, 1876, Sched. (r) Daniell's Forms, 3rd ed. 442. (*) Seton, 4th ed., 44. (t) See Ord. XL. r. 1. (a) 39 & 40 Vict. c. 59, s. 17 ; Ord. LVIIa. r. 1. («) For forms, see Daniell's Forms, 3rd ed. 834—842. SPECIAL CASE. 513 estate contracted to be sold or otherwise dealt with, or as to the * parties to or the form of any deed or instrument for carrying any such contract into effect, or as to any other matter falling within the original jurisdiction of the Court as a Court of Equity, or made subject to the jurisdiction or authority of the Court by any Statute : not being one of the statutes relating to bankrupts ; and including among such persons all lunatics (w), married women, and infants, in the manner and under the restrictions thereinafter contained, to concur in stating such question in the form of a special case for the opinion of the said Court ; and that it shall also be lawful for all executors, administrators and trustees to concur in such case. This form of procedure was at first of great utility ; but, in Effect of consequence of the changes which have been subsequently ^°|^ ln introduced into the general practice of the Court, its utility has been much diminished (x). (w) This includes idiots and per- (x) Dan. Pr. 1701, where see the sons of unsound mind, whether so practice relating to special cases under found by inquisition or not ; 13 & 14 13 & 14 Yict. c. 35. "Vict, c 35, =. 34. Power to refer ques- tions to official or special referees. The whole CHAPTEE IX. EEFEEENCES TO EEFEBEES AND ARBITRATORS. (1.) References for Report (a). By the Judicature Act, 1873 (36 & 37 Yict. c. 66), s. 56, it is provided that subject to any Rules of Court, and to the right of a party to have particular cases submitted to the verdict of a J ur y (&)> an y question arising in any cause or matter (other than a criminal proceeding by the Crown,) before the High Court of Justice, or before the Court of Appeal, may be referred by the Court, or by any Divisional Court, or judge before whom such cause or matter may be pending, for inquiry and report t o an y official or special referee, and the report of any such refere e may be ado pted wholly or partially by th e Court, and may (if so adopted ) be enlorced as a judgment by tne_£joji£L^ iij s. OY it is provided that in any cause or matter (other than a criminal proceeding by the Crown) before the High Court in which all parties interested who are under no disability consent thereto, and also without suc h consent in any su ch cause or matter requiring rany prolonged examination of docu- ments or accounts, or a ny scientific or local investigatio ns which cannot, in the opinion of the Court or a judge, conveniently be made before a jury, or conducted by the Court through its other ordinary officers, the Court or a judge may, at any time, on such terms as may be thought proper, order any question or issue of fact, or any question of account arising therein to be tried e ither before an official refe ree, or befor e a special refere e to be agreed on between the parties ; and any such special referee so ag reed on shall have the same powers and duties and proceed in the same manner as an official referee. The Court or a judge has no power to refer the whole action (a) For forms, see Daniell's Forms, 3rd ed. 1017—1024. (6) See Sugg v. Silber, 1 Q. B. D. 362. REFERENCES TO REFEREES AND ARBITRATORS. 525 to an official or special referee. Under s. 56 h e may refer any question arising in any cause or matter for report to a referee, and upon such an order the referee is to find the materials for the Court to act upon, and is not to determine the action. Under s. 57 the Court or a judge can order any question or issue of fact or account to be tried. By consent the Court or a judge can order any question whatever to be tried in the same way as in the case of a compulsory reference. There is no power to refer actions, but only questions or issues of fact in actions (c). / The expression " question of account " in s. 57 will receive a large construction ; and a claim in an administration suit, con- sisting of twenty-four items, was referred to an official referee ; but the Court will not direct a reference unless that be a better mode of disposing of the question than any other (d). In an action to set aside the sale of 130 pictures for fraud, it was held that there was no jurisdiction to refer under s. 57 ; and that, even if there had been, a question of fraud affecting the character of the defendant ought not, against his will, to be tried otherwise than in open Court (e). In all cases of any reference to or trial by referees under the Judicature Act, 1873, the referees are deemed to be officers of the Court, and haye such authority for the purpose of such reference or trial as shall be prescribed by Eules of Court or (subject to such rules) by the Court or judge ordering such reference or trial ; and the report of any referee unon any question of fact on any suc h trial is (unless set aside bv the Cour t) equivalent to the verdict of a jury (/). Trials before referees are to be conducted in such manner as may be prescribed by Eules of Court, and, subject thereto, in such manner as the Court or judge ordering the same shall direct (u&6~3 miLJ38 A a. »"* ■ drv wn thf- action for hearing on further, consideratio n (g). Where a motion is necessary, it would seem to be a motion for judgment ; it will not therefore be brought on as an ordinary motion^ but must be set down in the cause book (h). Old prac- tice not repealed. Different kinds of references to arbi- tration. (2.) References for Decision (i). The old practice before the Judicature Acts of referring matters in dispute for decision, is not repealed by, but exists alongside of, the new practice introduced by the Supreme Court of Judicature Act, 1873, ss. 56, 57, of referring questions for report (/). Three kinds of references to arbitration are in habitual use (besides those under the Lands Clauses Acts and other Acts of the same class) : — (1.) References to arbitration, by consent, of controversies as to which no action or suit is pending, but in which, if the conditions of the Acts be complied with, the submission may be made a rule of Court, and the award may be enforced under 9 Wm. 3, c. 15, and s. 17 of the Common Law Procedure Act, 1854. (2.) References of actions by con- sent of the parties. Such references have usually taken one or another of three forms : The submission has been of the action simply ; or of the action and all matters in difference, so (e) Seton, 4th ed. 398 ; 42 & 43 Vict. c. 78. (/) Wood v. Barnicott, W. N. ' (1878), 25. (g) As to further consideration, see p. 161. (h) Daniell's Forms, 3rd ed. 1023 ; Registrar's Notice of April, 1876. (i) For forms, see Daniell's Forms, 3rd ed. 1026—1039. (J) Cruikshanh v.' Floating Baths Co., 1 C. P. D. 260 ; per Brett, L.J., in Longman v. Bast, 3 C. P.D. 142, at pp. 152, 153. REFERENCE TO REFEREES AND ARBITRATORS. 581 as to refer all controversies though not included in the action ; or of the action and all matters in difference, with power to say what shall be done, so as to enable the arbitrator not only to determine rights or award damages, as the case may be, but to direct the doing of such acts as may be desirable. (3.) Com- pulsory references to the Masters in cases in which the matter in dispute consists wholly or in part of matters of mere account, under ss. 3 — 10 of the Common Law Procedure Act, 1854, (k). By 9 Will. 3, c. 15, persons desirous of settling their con- 9 Will. 3, troversies by arbitration, may agree that their submission of u ' the suit to the award of any person shall be made a rule of any Court of Record ; and it is further enacted that any arbitration procured by corruption or undue means may be set aside. By 3 & 4 Will. 4, c. 42, the authority of an arbitrator ap- 3 & i pointed by or in pursuance of any rule of Court, or judge's ^^- *> order, or under an agreement that the submission may be made a rule of Court is irrevocable except by leave of the Court, and the arbitrator is to proceed with the reference, notwithstanding any such revocation, and to make his award, although the person making the revocation does not afterwards attend the reference ; and the Court may from time to time enlarge the term for any such arbitrator making his award (I). The. Court or a judge may compel the attendance of witnesses before an arbitrator, or the production of documents. Conduct money is to be paid, and witnesses need not produce documents which would be privileged on a trial (m). The arbitrator may ad- minister an oath to the witnesses («). By the Common Law Procedure Act, 1854 (17 & 18 Vict. Common c. 125), it is provided that " every .agreement or submission to Law Pro " arbitration by consent, whether by deed or instrument in 1854. ' writing not under seal, may be made a rule of any one of the Agreement Superior Courts of Law or Equity at Westminster, on the ap- g[ on u t bmis " plication of any party thereto, unless such agreement or sub- arbitration mission contain words purporting that the parties intend that j^ C0 " s . en J' it should not be made a rule of Court ; and if in any such may be agreement or submission it is provided that the same shall or ™j de f a may be made a rule of one in particular of such Superior Courts, Court. it may be made a rule of that Court only ; and if, when there is no such provision, a case be stated in the award for the (h) Wilson, 2nd ed., 265. (m) Section 40. (0 Section 39. («) Section 41. M 11 2 532 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Applica- tion to make sub- mission a rule of Court. Cesser of arbitrator's authority. Setting aside award. Contempt for not executing award. Appoint- ment of arbitrator or umpire by judge on failure of appoint- ment by parties. opinion of one of the Superior Courts, and such Court be specified in the award, and the document authorising the re- ference have not, before the publication of the award to the parties, been made a rule of Court, such document may be made a rule only of the Court specified in the award ; and where in any case the document authorising the reference is or has been made a rule or order of any one of such Superior Courts, no other of such Courts shall have any jurisdiction to entertain any motion respecting the arbitration or award " (o). The application to make the submission a rule of Court is made by motion : which must be on notice, unless the sub- mission provides that either party may make it an order of the Court without notice to the other party j and the execution of the submission must be proved, unless the application is con- sented to (p). The order will not be passed until the submission has been filed in the Central Office, and a note thereof made on the order by the proper Master of the Supreme Court (q). When the arbitrator has signed the award his authority is at an end, and he. cannot even rectify a clerical error, but an ap- plication for that purpose should be made to the Court (r). If the arbitrator has been guilty of misconduct, or has ex- ceeded, his "authority, or has not awarded on all the matters referred to him, or if the award has not followed the terms of the submission, or is uncertain, or inconsistent, an application may be made to set the award aside (s). The application to set aside the award is made by motion, of which notice must be served on the other parties and the arbitrators (t). Any party neglecting or refusing to execute the award, or any part thereof, is guilty of a contempt of the Court of which the submission was made a rale (m). " If, in any case of arbitration, the document authorising the reference provides that the reference shall be to a single arbi- trator, and all the parties do not, after difficulties have arisen, concur in the appointment of an arbitrator — or if any appointed arbitrator refuse to act, or become incapable of acting, or die, and the terms of such document do not show that it was in- to) 17 & 18 Vict. c. 125, s. 17. (p) Dan. Pr. 1902. (S) Cons. Ord. XXIII. r. 23 ; 42 & 43 Vict. c. 78. (r) Mordue v. Palmer, 6 Ch. 22. (») Gutty's Arch., 12th ed. 1662, ctseq. (t) Dan. Pr. 1903. («) 9 Wm. 3, c. 15, s. 1. REFERENCES TO REFEREES AND ARBITRATORS. 533 tended that such vacancy should not be supplied, and the parties do not concur in appointing a new. one— or if, where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not , appoint an umpire or third arbitrator — or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorising the reference do not show that it was intended that such a vacancy should not be supplied, and the parties or arbitrators respectively do not appoint a new one — then, in every such instance, any party may serve the remaining parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator respectively; and if within seven clear, days after such notice shall have been served no arbitrator, umpire, or third arbitrator be appointed, it shall be lawful for any judge of any of the Superior Courts of Law or Equity at Westminster, upon summons to be taken out by the party having served such notice as aforesaid, to appoint an arbitrator, umpire, or third arbitrator, as the case may be ; and such arbitrator, umpire, or third arbitrator respectively, shall have the like power to act in the reference and make an award as if he had been appointed by consent of all parties " (v). " When the reference is or is intended to be to two arbi- Substitu- trators, one appointed by each party, it shall be lawful for arWtrator W either party, in the case of the death, refusal to act, or inca- pacity of any arbitrator appointed by him, to substitute a new arbitrator, unless the document authorising the reference show that it was intended that the vacancy should not be supplied ; and if on such a reference one party fail to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party shall have appointed an arbi- trator, and shall have served the party so failing to appoint with notice in writing to make the appointment, the party who has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator in the reference, and an award made by him shall be binding on both parties as if the appointment had been by consent ; provided, however, that the Court or a judge may revoke such appointment on such terms as shall seem just" («). " When the reference is to two arbitrators, and the terms of Appoint- 17 & 18 Vict. c. 125, 8. 12. (w) Id. & 13. 534 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. ment of umpire. Time for making award. Enlarge- ment of time. Order for delivery of possession of lands or tene- ments. the document authorising it do not Bhow that it was intended that there should not be an umpire, or provide otherwise for the appointment of an umpire, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award (x), unless they be called upon by notice as aforesaid to make the appointment sooner " {y). The arbitrator acting under any such document as aforesaid, or under any order referring the award back (z), is to make his award under his hand, and (unless such document or order respectively shall contain a different limit of time) within three months after he shall have been appointed, and shall have entered on the reference or shall have been called upon to act by a notice in writing from any party, but the parties may by consent in writing enlarge the term for making the award ; and the Court of which the submission, document, or order is or may he made a rule or order, or any judge thereof, may, for good cause to he stated in the rule or order for enlargement, from time to time enlarge the term for making the award ; and if no period be stated for the enlarge- ment in such consent or order for enlargement, it will be deemed to be an enlargement for one month ; and in any case where an umpire shall have been appointed he may enter on the reference in lieu of the arbitrators, if the latter shall have allowed their time or their extended time to expire without making an award, or shall have delivered to any party or to the umpire a notice in writing' stating that they cannot agree (a). The ap- plication to enlarge is made upon notice ; and the order may be made after the expiration of the time for making the award (6). " Where any award made on any such submission, document, or order of reference as aforesaid, directs that possession of any lands or tenements capable of being the subject of an action of ejectment shall be delivered to any party, either forthwith or at any future time, or that any such party is entitled to the possession of any such lands or tenements, it shall be lawful for the Court of which the document authorising the reference is, or is made, a rule or order, to order any party to the reference (x) As to time for making award, see s. 15, infra, (y) 17 & 18 Vict. c. 125, s. 14. (2) See s. 8, infra. (a) 17 & 18 Yict. c. 125, s. 15. (i) Re Warner and Powell, 3 Eq. 261 ; Re Bare Valley Ry. Co., 4Ch. 554 ; Ord. LVII. r. 6. REFERENCES TO REFEREES AND ARBITRATORS. 535 who stall be in possession of any such lands or tenements, or any person in possession of the same claiming under or put in possession by him since the making of the document autho- rising the reference, to deliver possession of the same to the party entitled thereto, pursuant to the award ; and such rule or order to deliver possession shall have the effect of a judg- ment in ejectment against every such party or person named in it ; and execution may issue, and possession shall be delivered by the sheriff as in a judgment in ejectment " (c). The arbitrator may, if he shall think fit, and if it is not pro- Arbitrator vided to the contrary, state his- award, as to the whole or any ^^} ate part thereof, in the form of a special case for the opinion of the case. Court (d) ; and the case, when so stated, will, on application by motion oh notice, be set down for hearing (e). The Court or judge may, from time to time, and on such Matters terms as may seem fit, remit the matters referred, or any of refel T e(1 them, to the reconsideration and redetermination of the arbi- remitted trator (/). The object of this provision is, to enable the Court, *? rec ° n - where any error, formal or otherwise, has occurred which would of arbi- vitiate the award, to send it back to the arbitrators to correct trator> such errors, instead of setting the award wholly aside, which was all the Court had power to do before this enactment (g). The evidence of an arbitrator is admissible in explanation of Evidence his award ; and when it appears from such evidence that there J^o,. 1 " has been a mistake on his part, either as to the subject-matter referred to him, or in point of legal principle affecting the basis on which the award is made, the award will be set aside or referred back again to the arbitrator (A). " Whenever the parties to any deed or instrument in writing Stay of to be hereafter made or executed, or any of them, shall agree p rooee ^ - . rr- i m S s whore that any then existing or future diflerences between them or action any of them shall be referred to arbitration, and any one or b ™ u s ht J . after agree- more of the parties so agreeing or any person or persons claim- ment to ing through or under him or them, shall nevertheless commence refsr " any action at law or suit in equity against the other party or parties, or any of them, or against any person or persons claim- ing through or under him or them in respect of the matters so (c) 17 & 18 Vict. c. 125, s. 16. (g) Dan. Pr. 1905. (d) Id. s. 5. (h) Id., citing Re Dare Valley Ry. (e) Dan. Pr. 1904. Co., 6 Eq. 429 ; Duke of Buceleuch (/) 17 & 18 Vict. c. 125, s. 8. v. Met. Board of Works, 5 Ex. 221. o36 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. agreed to be referred, or any of them, it shall be lawful for the Court in which action or suit is brought; or a judge thereof, on application by the defendant or defendants, or any of them, after appearance and before [defence], upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration according to such agreement as aforesaid, and that the defendant was at the time of the bringing ofsuch action or suit, and still is, ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in such action or suit, on such terms as to costs and otherwise as to such Court or judge may seem fit : Provided always, that any such rule or order may at any time afterwards be discharged or varied as justice may require " (i). An application under this section is made by motion on notice. Entry of Where an action has been referred to an arbitrator under the Common Law Procedure Act, 1854, judgment may be entered in accordance with the award, without motion for judgment (,/). (i) 17 & 18 Viet. o. 125, s. 11. (j) Lloyd v. Lewis, 2 Ex. D. 7. CHAPTEE X. INJUNCTIONS AND RESTRAINING ORDERS, AND WRITS AND ORDERS IN THE NATURE THEREOF. (1.) Injunctions (a). A writ of injunction is a judicial process, whereby a party What is is required to refrain from doing a particular thing, according t^„ njlJnc " to the exigency of the writ. The process is, therefore, rather preventive than restorative : though it is not confined to the former object (6). Injunctions are either provisional or perpetual. Provisional Different injunctions are such as are to continue until a certain specified ^ l " ds of . . _ .. . - lnjunc- period : such as the coming in of the defence ; or the hearing tions. of the cause. Perpetual injunctions are such as form part of the judgment made at the hearing, upon the merits, whereby the defendant is perpetually enjoined from the assertion of a right, or perpetually restrained from the commission of an act which would be contrary to equity and good conscience (c). Injunctions may be also either total or partial, qualified or unconditional (d). Courts of equity have constantly declined to lay down any In what rule limiting their power and discretion as to the particular casel * , cases in which injunctions should be granted or withheld (e). The more ordinary instances, however, in which applications are made to the Court for injunctions are in cases arising with respect to waste, nuisances, letters patent for inventions, in- fringement of copyrights, infringement of trade-marks, breach of contract, trespass, the publication of private letters, and partnership transactions. (a) For forms, see Daniell's Forms, datory injunctions. 3rd ed. 862—869. (c) Dan. Pr. 1462. (6) Dan. Pr. 1462. Those in- (d) Sm. Man. Eq., 12th ed. 449. junctions which are in their nature (e) Id. 450. restorative are sometimes called man- 538 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Power of Court to grant in- junctions under Ju- dicature Act, 1873. Jurisdic- tion of Court or judge. Indorse- ment of writ. How appli- cation for injunction made. By the Judicature Act, 1873 (/), it is enacted that an injunction may be granted by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made ; and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just ; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court shall think fit, whether the person against whom such injunc- tion is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title ; and whether the estates claimed by both or by either of the parties are legal or equitable. The High Court, or any judge thereof, has jurisdiction to restrain by injunction any act which any Court of law or equity could formerly restrain () Dan. Pr. 1531. (ro) See p. 186. (x) Dan. Pr. 1536. INJUNCTIONS. 541 course, where there is an irregularity, is to move at once, upon notice, that it may be discharged for irregularity (y). An interlocutory injunction may be dissolved at any time Applica- before the hearing. An application to dissolve an interlocu- ^g j° e tory injunction is made by motion : of which notice should be interlocu- given in the usual manner. The notice should be given for ; u ^yJ" n one of the days appropriated to the hearing of motions ; but if it be important that the motion should be made without wait- ing for such a day, application should be made to the Court, before the notice of motion is served, for permission to give the notice of motion for a*particular day; and the fact of such permission being given should be mentioned in the notice of motion. The plaintiff is sometimes, by the interim order, required to undertake that he will accept short notice to dis- charge the order. If the injunction was obtained on a mis- statement of the 'facts, the motion should be to discharge the order, and not to dissolve the injunction (z). The application to dissolve an injunction must be supported by evidence (which is usually given by affidavit), on the part of the defendant, in answer to that upon which the injunction was obtained ; and the case thus made by the defendant may be met by counter evidence on the part of the plaintiff (a). If, upon hearing the motion, the Court is of opinion that the injunction was obtained by a suppression of material facts, or that it was improperly granted, or that the case made by the plaintiff is contradicted or not supported, it will order the injunction to be dissolved, either with or without costs, as the justice of the case may require. But if the defendant does not succeed in satisfying the Court that the injunction ought to have been refused, or that it ought not to be continued, or the Court considers that the defendant is estopped by his own laches or acquiescence, the application will be refused, and the injunction continued (6). An injunction which has been granted upon an interlocutory Interlocu- application, is superseded by the decree made at the hearing. t™7 "»■ If, therefore, it is intended that it should still remain in force, superseded it must be expressly continued (c). b ? decree. (y) Dan. Pr. 1536. (J) Id. (t) Id. 1526—1528. (e) Id. 1530. (o) Id. 1528. 542 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. (2.) Mandamus (d). Common By the Common Law Procedure Act, 1854 (17 s - *• summary way, without [action], restrain the Governor and Company of the Bank of England, or any other public company, whether incorporated or not, from permitting the transfer of any stock in the public funds, or any stock or shares in any public company, which may be standing in the name or names of any person or persons, or body politic or corporate, in the books of the Governor and Company of the Bank of England, or in the books of any such public company, or from paying any dividend or dividends due or to become due thereon ; and every order of the said Court, upon such motion or petition, is to specify the amount of the stock, or the particular shares to (i) Ord. MI. r. 4. (m) 17 & 18 Vict. 0. 125, s. 72. (j) See Mduish, v. Milton, 24 W. (») Id. s. 73. As to Attach- E. 679 ; Hennessey t. Bokmann, W. ment, see p. 190. N. (1877), 14. (0) Ord. as to Court Fees, Oct., (k) English v. Vestry of Camber- 1875, Scried.; Ord. as to Fees, well, W. N. (1875), 256. April, 1876, Sched. (T) Daniell's Forms, 3rd ed. 871. (p) For forms, see Daniell's Forms, As to service of writ of injunction, 3rd ed. 872, 873. see p. 510. 544 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Applioa- - tion, how made. Drawing up and service of 1>rder. Effect of order. Applica- tion to discharge or vary order. be affected thereby, and the name or names of the person or persons, body politic or corporate, in which the same shall be standing ; but the Court has full power, upon the application of any party interested, to discharge or vary such order, and to award such costs, upon such application, as to the said Court shall seem fit. An application under 5 Vict. c. 5, s. 4 is made ex parte, by motion or petition. The petition must state the circumstances on which the applicant relies, to induce the Court to make the order. The motion or petition must be supported by affidavit showing the amount of the stock, or the particular shares, sought to be affected, or in whose name the same is or are standing ; and stating facts to satisfy the Court that there is a necessity for its intervention (q). The order, when made, is drawn up by the Eegistrar, and passed and entered in the usual way (r). The order must then be served on the Chief Accountant of the Bank of England, if that corporation is restrained, or upon the Secretary or other proper officer of any other public company restrained by the order, by delivering to the person served a true copy of the order, and at the same time showing him the original order («). The effect of the order seems to be the same as that of an injunction ; and it continues in force until discharged by an order of the Court (I). Any person interested may apply to 'discharge or vary the order (u). The application is made by motion, with notice to the person by whom the order was obtained ; and should be supported by affidavit (v). Meaning of dis- tringas. (4.) Writ of Distringas (ui). Distringas is a process by which any person claiming stock or shares may restrain the Bank of England or other company from parting with the stock or shares, or any dividend upon them. The practical effect of a distringas is to secure that the property is not dealt with without notice to the person putting on the distringas (x). (j) Dan. Pr. 1538, 1539. (»•) See "Entry of Judgment,'' p. 153. (a) Dan. Pr. 1539. («) Id. («) 5 Vict. c. 5, s. 4. {v) Dan. Pr. 1539. (w) For forms, see Daniell's Forms, 3rd ed. 874—877. («) Wilson, 2nd ed. 296. DISTRINGAS. 545 Any person claiming to be interested in any stock trans- Who may ferable at the Bank of England, standing in the name of any ™ j t ° ut other person, may siie out a writ of distringas pursuant to the Statute, 5 Vict. c. 8 (y) as heretofore. Such writ to be issued Where writ out of any office of the High Court in London, where. writs of j^fjj 16 summons are issued (z). Although the Bank of England only is mentioned in this rule, yet the practice has been that the writ may issue to restrain the transfer of stock, &c, in any public company, whether incorporated or not, and will probably be the same under the new procedure (a). In order to obtain the jvrit, the person seeking to restrain Affidavit. the fund, or his solicitor, must make an affidavit that the appli- cant is beneficially interested in the stock in question. If the affidavit is made by the solicitor, it must be shown thereby that he is the solicitor of the applicant (6). Where two or more persons apply, an affidavit by one of them will be suffi- cient (c). The affidavit must be entitled in a fictitious suit by the applicant against the Bank (d) ; and must specify the amount of the stock to be affected by the writ, and in whose name it is standing (e). The affidavit will, however, be acted on by the Master of the Supreme Court, where the applicant swears that he is " trustee for and on behalf of, &c, who are beneficially interested," or if the species of stock only, and not the amount of it, is specified. The residence and the description of the applicant must be stated in the affidavit ; and when he is under disability, a next friend must be named on his behalf in the proceedings ; but the written authority of such next friend to use his name is not required to be filed or produced. In the latter case, the affidavit may be made either by the solicitor or the next friend. The affidavit is left with the proper Master of the Supreme Court, to be filed ; but no office copy of it need be taken (/). The writ must be prepared on parchment, by the solicitor of The writ, the applicant, and a praecipe must be left with the officer. On (jr) 5 Vict. c. 5, is doubtless in- (c) Cons. Ord. XXVII. r. 2. tended to be referred to. (d) Or other public company. (s) Ord. XLVI. r. 2. (e) Cons. Ord. XXVII. r. 2. (a) Seton, 4thed.*285. (/) Braithwaite's Pr. 191, 192. (J) Dan. Pr. 1510. 546 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Fees. Return of writ. Service of writ. Effect of ■writ. Discharge of writ. issuing the writ a fee of 10s. on the higher or 5s. on the lower scale is payable by a stamp impressed upon the prcecipe (g). The writ is made returnable on a day certain ; but there must not be less than eight clear days between the teste and the return. The return does not, however, affect the operation of the writ; nor hinder any application to discharge it being made before the date of the return (7j). The writ is served on the Bank of England, accompanied with a notice that the object of the writ is to prevent the transfer of the stock therein mentioned, and the payment of the dividends thereon, or as the case may be. In practice, the service is effected by taking the writ and notice to the office of the solicitors of the Bank of England. Their fee is 13.S. id. In the case of other public companies, the writ and notice are ordinarily served at the company's office, on the secretary, or other proper officer (i). Where the Bank has been served with a writ of distringas, and a notice not to permit the transfer of the stock in such notice and in the affidavit specified, or not to pay the dividends thereon, it will not permit the stock to be transferred, or the dividends to be paid, without notice to the person who has ob- tained the writ ; but if the Bank afterwards receives a request from the person in whose name such stock is standing, or some person on his behalf, or representing him, to allow such transfer, or to pay such dividends, the Bank is not, by force or in con- sequence of such distringas, authorised, without the order of the Court, to refuse to permit such transfer to be made, or to withhold payment of such dividends, for more than eight days after the date of such request (/). The writ of distringas, and all process thereunder, may at any time be discharged by an order : to be obtained, as of course, upon the petition of the person on whose behalf the writ was issued : or to be obtained upon the application by motion on notice, or by petition duly served, of any other person claiming to be interested in the stock sought to be affected by such writ ; and upon or after such application, such costs thereof and in relation thereto, and to the writ, as to the (g) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord. as to Fees, April, 1876, Sched. {h) Braithwaite's Pr. 192, 193. (i) Dan. Pr. 1541, 1542. U) Dan. Pr. 1542 ; Cons. XXVII. r. i. Ord. STOP OKDERS. 547 Court seems just, may, if the Court thinks fit, be awarded and ordered to be paid by the person on whose behalf the writ was issued ; or, upon an application by any other person, by such person (k). (5.) Stop Orders (I). Any person, although not a party to the cause or proceeding By whom in which a fund in Court is standing, who has become entitled an ~ . m „ GJ / what cases to any such fund, or a share thereof, or to any lien or charge obtainable, thereon, may apply to that branch of the Court to which the cause or proceeding is attached, for an order to prevent the fund in question from being paid out, or otherwise dealt with, without notice to the applicant (m). The application must in all cases be made by summons (n). Applica- The application must be supported by evidence of the title tl0n .' ovr of the person, the payment of whose fund is intended to be Evidence restrained : although it is not absolutely necessary that the par- in support ticular share of the fund to which he is entitled should be shown. y „ pp 10a ' The title of the assignee must also be shown. The"_title of the assignor will usually appear from the proceedings in the cause : where this is not the case, the facts must be estab- lished by affidavit. The title of the assignee is generally proved by the person whose fund is to be affected appearing and ad- mitting the fact : when this is not the case, it must be proved in the regular way (o). The application must also be sup- ported by the Chancery Paymaster's voluntary certificate of the fund (p). It is not necessary to serve the summons on the parties to the Service of cause; but the person whose interest is intended to be affected must be served (3). The order when duly passed and entered, or an office copy, Order to be must be left at the Chancery Pay Office j and, until this has q^* Pay been done, it does not take effect. The Chancery Paymaster will, however, delay parting with a fund, if he has received notice of an intended application for a stop order (r). (£) Cons. Ord. XXVII. r. 3. (0) Dan. Pr. 1544. (Z) For forms, see Daniell's Forms, (p) Daniell's Forms, 3rd ed. 880. 3rd ed. 878—883. (2) See Cons. Ord. XXVI. rr. 1, 2 ; (m) Dan. Pr. 1543. Dan. Pr. 1545. (») Wrench v. Wynne, 17 W. R. (r) Dan. Pr. 1545 ; Seton, 4th ed. 198 ; Walih v. Waaon, 22 W. K. 304. 676. NN 2 548 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Solicitor's lien. Effect of order. ment by assignee of his inte- rest. Documents deposited in Court. Discharge of order for irregu- larity. A solicitor's lien on a fund recovered by his exertions, has priority over a stop order obtained by an assignee from his client (s). The fund to which the stop order applies will not be paid out or otherwise dealt with, until it is either directly dis- charged or some order is made expressly directing the fund to be dealt with, notwithstanding the stop order. A person who has obtained a stop order must, therefore, be served with notice of any application to deal with the fund ; and at the hearing of the application the Court will either discharge the stop order or direct payment to the person who has obtained it, according to what appears to be the rights of the parties ; or, if the rights of the parties cannot then be satisfactorily ascertained, it will direct the fund to be retained in Court for a limited time, to give the claimant an opportunity of taking the necessary steps for asserting his claim (t). Where the person who has obtained a stop order afterwards assigns his interest in the fund affected thereby, the assignee may obtain a stop order in his favour on summons, supported by production of the former stop order, and an affidavit of his title (u). An order may be obtained to stay the delivery out, without notice to the applicant, of documents deposited with the Master of the Supreme Court (v) ; or the Chancery Paymaster (w). A stop order will be discharged with costs if it has been irregularly obtained (x). (s) Haymes v. Cooper, 33 Eeav. Chambers, 5th Nov., 1870; Seton, 431. 4th ed. 302. («) Dan. Pr. 1546, 1547. (v>) Williams v. Symonds, 9 Bear. («) Id. 1547. 523. (v) Lang v. Griffith, M. K. at {x) Be NoweU, 11 W. R. 896. CHAPTER XI. EECEIVEES. (1.) Anointment of Receiver (a). A Receiver is an indifferent person, between the parties, who is a appointed by the Court to receive the rents and profits of real reoe i Ter - estate, or to get in and collect personal estate, or other things in question, pending the suit, where it does not seem reason- able to the Court that either party should do so ; or where a party is incompetent to do so (6). By the Judicature Act, 1873, s. 25 (8) (c), a receiver may be Judicature appointed by an interlocutory order of the Court in all cases in ^e 1 ^. 8 ' which it shall appear to the Court toie just br convenient that such order should be made ; and any such order may be made either unconditionally or upon such terms and conditions as the Court shall thiuk just. Under this enactment there is no limit to the power of the Court to appoint a receiver on an interlocutory application, except that such power is only to be exercised where "just or convenient " (d). An application for an order under s. 25, sub-s. 8, of the Applica- Judicature Act, 1873, may be made to the Court or a judge by ^^ r any party. If the application be by the plaintiff it may be receiver. made either ex parte or with notice, and if it be by any other party, then on notice to the plaintiff and at any time after ap- pearance by the party making the application (e). The order will not in general, however, be made ex parte; but in a case of emergency it will (/ ). (a) For forms, see Darnell's Forms, N. (1878), 91. 3rd ed. 884—895. («) 0rd - WI - r - 4 - (J) Dan. Pr. 1563. (/) Meluish y. Milton, 24 W. E. (c) 36 & 37 Vict. c. 66. 679 ; Hennessey t. Sohmomn, W. N. (d) Qawthorpe v. Gawthorpe, W. (1877), 14. 550 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Under Judicature Act, 1873, *». 25 (8), find Ord. HI. r. 4. Indorse- ment of writ. Who may be ap- pointed. Where a plaintiff was legal mortgagee as to part and equit- able mortgagee as to other part, the Court appointed a receiver of the whole {g). A receiver was appointed before service of the writ where loss to trust estates through bankruptcy was anticipated (h). Under Ord. LIL r. 4, a defendant may apply before judg- ment for an injunction and receiver; and this, although the plaintiff has previously given notice of a like motion. The circumstances under which one member of a dissolved partner- ship will be appointed receiver and manager considered (i). A plaintiff claiming specific performance of a parol agreement to mortgage chattels was appointed interim receiver for a fort- night without security, there being immediate danger of the chattels being sold ( j). The unpaid vendors of leasehold property, to a company which became insolvent and was being voluntarily wound up, were appointed receivers and managers, without salary and without security, in an action by them against the company (k). Where a judgment debtor's interest in real estate is equitable, the judgment may be enforced by the appointment of a receiver in the action in which such judgment was recovered (Z). If the appointment of a receiver is a substantial object of the action, the writ of summons should be indorsed with a claim for such appointment (m). As a rule a receiver should be a person disinterested in the subject matter of the action ; but in some cases persons inter- ested may be appointed (n). Leave of the Court must be obtained before a party to the action can propose himself as receiver (o). The right to the appointment of a receiver belongs in the first instance to the parties interested, and not to a stranger ( p). The most fit person should be appointed, with- (C1 conditional upon his giving security. A further order is not named in then necessary ; but a copy of the order is left at Chambers, order ™. aiie and a summons to settle the security is issued and served upon cation to the parties interested ; and thereupon the amount of the security a PP? mt to be given will be settled upon the like evidence, and the recognizance will be approved, completed, and enrolled, in the manner before described. The Chj^jj^jj^wiU then make a certificate of the completion of the security, and of the periods fixed for the passing of the accounts and payment over of the balances; and such certificate is completed in the usual way (/). On an application at Chambers to appoint a receiver, the Expense of expense of a certificate, in addition to an order, may be saved, certlf j^ te by the recognizance being completed and enrolled before an saved. order is drawn up. In such case the recognizance should recite that the judge has approved the proposed receiver subject to (e) Dan. Fr. 1587, 1588. (h) Cons. Ord. XXIV. r. 2. (/) Id. 1588. (*) Dan. Pr. 1588. (g) Cons. Ord. XLII. r. 12. (j) Id. 1588, 1589. 554 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Costs. Allowance to receiver. his giving security, instead of reciting the order directing a receiver to be appointed ; and the order should, after reciting that the recognizance has been enrolled, appoint the receiver, and fix the days for him to bring in his accounts, and pay the balances (k). The costs incurred -with reference to the completion of the receiver's security, and subsequent thereto are, in the first instance, paid by the receiver, and will be allowed him in passing his first account (I). The usual allowance to a receiver is £5 per cent, on the gross rental of the estates ; but where the rental is very con- siderable, a per-centage at a lower rate is allowed, or a fixed salary. A party interested proposing himself is usually required to act without salary, unless by consent (m). A receiver may be entitled to an allowance beyond his salary for extraordinary trouble and expenses (n) : if incurred with the approbation of the Court or judge (o). (2.) Tlie Receivers Powers, Duties, and Liabilities (j>). Order to deliver or attorn. Where a receiver has been appointed of real or leasehold estates, the parties are usually directed by the order to deliver up to him the possession of such parts of the property as are in their holding ; and the tenants of such other parts as are let are ordered to attorn to the receiver, and to pay to him their rents in arrear, as well as the growing rents. The receiver, therefore, as soon as his appointment is complete, should apply to the parties and tenants to deliver possession and attorn accordingly ; and if they refuse, he should report their refusal to the solicitor of the party on whose application the order was made : to the intent that he may take the necessary steps to Order to enforce the order of the Court (j). An order may, however, be pay rent to obtained on motion or summons, with notice to the tenant, for (k) Dan. Pv. 1589. (I) Id. (m) Seton, 4th ed. 425, 426. (n) Potts v. Leigltton, 15 Tes. 276. (o) Se Ormsby, 1 Ba. & B. 189. (p) For forms, see Daniell's Forms, 3rd ed. 896—899. (?) Dan. Pr. 1590. As to pro- ceedings to compel attornment, see Dan. Pr. 1591. RECEIVERS. 555 payment of rent by him to the receiver, notwithstanding he has not attorned (r). Any party to the proceedings who is in possession of property Procedure ordered to be delivered to the receiver, and who neglects to wl ?! re , , . > b party neg- deliver accordingly, should be served personally with the order lects to directing such possession to be delivered : and if possession is deliver «p ... . _ possession* still withheld from the receiver, an application should be made by motion, esc parte, for a writ of assistance, directed to the sheriff of the county wherein the property is situate, to put the receiver into possession, pursuant to the order. The applica- tion should be supported by an affidavit of service of the order, and of non-compliance (s). The possession of a receiver is deemed to be that of the Disturb- Court ; and any attempt to disturb it without the leave of the an ° e - of , ^^ 1 CCC1 \ Gr S Court first obtained is a contempt on the part of the person possession. making it ; and will be restrained by injunction ; or the person making it may be committed for his contempt (<). If a solicitor in the matter has received rents, he must pay Solicitor them over to the receiver : and he will not be permitted to set """* VW INPUTS Tfl up a lien thereon for his costs («). receiver. After the tenants have attorned to the receiver and so Distress by created a tenancy between them, the receiver may distrain in reoelTer - his own name, for rent accrued during such tenancy. It appears that the practice is for the receiver to distrain at his own dis- cretion for rent in arrear within the year ; but if in arrear for more than a year, then an order is necessary. An application for leave to distrain is made at Chambers, and ordinarily by sum- mons : but it is not usual to draw up a formal order in such cases ; the minute made by the Chief Clerk of the directions given being deemed sufficient (v). In an ordinary case, a receiver may, in his discretion, let for' Power to a year certain or less, or for any term not exceeding three let> years, without applying for the sanction of the judge. He has also an implied authority to determine such tenancies by a regular notice to quit ; but he ought not to raise the rents, on slight grounds, without leave of the Court ; and he cannot (r) Hobson v. Sherwood, 19 Beav. (u) Widens v. Tovmskend, 1 R. 575. & M. 361. («) Dan. Pr. 1590. («) Dan. Pr. 1596, 1597. it) Dan. Pr. 1592. 55G INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Expendi- ture. For -what receiver liable. Applica- tion for directions. take any step to evict a tenant without the sanction of the judge (w). The Court will not permit a receiver to lay out more than a small sum at his own discretion. It is improper, therefore, for a receiver to do without the sanction of the judge any act which may involve the estate in expense (x). A receiver will be responsible for any loss which may be occasioned to the estate from his wilful default : therefore, if he places money received by him in what he knew to be im- proper hands, the Court -will oblige him to pay it out of his own pocket. But if he deposits the monies with a banker for safe custody, he will not be answerable for the failure of the banker if the monies are not mixed with his own monies, and they were bond fide deposited for safe custody, under circum- stances in which they could not properly have been paid into Court. A receiver, however, will be held answerable for the loss occasioned by the failure of a banker with whom he deposited monies for security, if the deposits are made in such a way that he parts with the absolute control over the fund (y). If. it should become necessary to take the directions of the judge, the receiver should apply to the party conducting the proceedings to make the application : and, in the event of refusal, the receiver may himself apply («). The application is usually made by summons. Must leave accounts on day appointed. How ac- count to be made out. (3.) The Receiver's Accounts (a). A receiver must leave his accounts at the judge's Chambers on the days appointed for that purpose by the judge (6). The account should be made out in the prescribed form (c). In the first account the receiver passes he should state, in the column for observations, how each tenant holds ; and every alteration should be noticed in the subsequent accounts ; in this column should also be entered any remarks the receiver may think proper to make as to the arrears of rent, the state of (w) Dan. Pr. 1597. (x) Id. (J) Id. 1599. (z) Ireland v. Bade, 7 Beav. 55 ; Parker v. Dunn, 8 Beav. 497. (a) For forms, see Daniell's Forms, 3rd ed. 900—906. (6) Cons. Ord. XXIV. r. 2 ; Kegs., 8th Aug., 1857, r. 16. (c) Kegs., 8th Aug., 1857, r. 24. * RECEIVERS. 557 repairs or otherwise (d). If the account is drawn up in an irregular manner, the receiver may be ordered to draw it up in a proper form, and to pay the costs occasioned by his irre- gularity (e). On leaving the first account, a copy of the order appointing Copy order the receiver, certified by the solicitor to be a true copy thereof, ment to" 1 *" must be lodged at Chambers, if not previously done (/). be left at Upon leaving the account, a summons to proceed thereon is m taken out by the receiver's solicitor, and served upon such to proceed. parties as are entitled to attend upon the passing of the accounts {g). If the receiver neglects to take out this summons, any of the parties may do so. The receiver is usually directed Copies of to hand copies of his account to such of the parties as are entitled to attend upon the passing thereof; and to charge for the same in his costs ; and where a plaintiff or defendant is entitled to attend, he is not allowed to take a copy, if his solicitor is also the solicitor for the receiver (A). The receiver also brings in his. bill of costs on passing the Costs. account ; which is then taxed and the amount included in his disbursements (i). Parties attending the passing of a receiver's account have costs from the receiver only after a judgment disposing of the costs of the suit, and showing who is entitled to costs out of the rents ; in other cases, the costs of the parties are costs in the cause (J). Where the parties are entitled to have their costs paid by the receiver, such costs are taxed at Chambers, and paid by the receiver and included in his account (k). If the receiver does not attend and substantiate his accounts, Effect of he may be charged with the amount of his receipts, but may " on : at " jo i > j tendance be disallowed such of his payments as he failed to vouch (I). of receiver. On taking the account of a receiver or manager, a fee is Fees on payable, where the amount found to have been received, with- a ^,o°„ t out deducting any payment, does not exceed £200, of 2s. ; and where such amount does exceed £200, for every £50, or fraction of £50, a fee of 6d. The fees are upon payment to be (d) Bloxam, 51. the account before the Chief Clerk, (e) Dan. Pr. 1600. see pp. 417, 429—432. (/) Id. (i) Dan. Pr. 1601. (g) Cons. Ord. XXIV. r. 3. (/) Bloxam, 52. (A) Dan. Pr. 1600, 1601. As to (i) Dan. Pr. 1601. attendance of parties on the return of (I) Id. the summons, and as to going through 558 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Entry of account. Certificate of allow- ance. Applica- tion to pay in monies. Procedure where re- ceiver does not leave account or pay in balance. allowed in the account, unless the Court or judge otherwise directs; and are to be paid by a stamp impressed upon or adhesive to the certificate (m). When the account is passed it is entered by the solicitor of the receiver in duplicate books, and the entry in each book must be verified by his affidavit : which must refer to the account as an exhibit, and not be annexed to it. The books, with an office copy of the affidavit, are then left at the judge's Chambers, and a memorandum of the allowance of the account is written at the foot of it, and signed by the Chief Clerk. One of these books, which is called " The Keceiver's Book," is retained at the Chambers until the completion of the receiver- ship : when it is deposited at the Central Office. The other is delivered back from time to time to the receiver («). A certificate of the allowance of the account, stating the balance due from the receiver, and the day on which it is to be paid into Court, is then made and signed by the Chief Clerk, and approved and signed by the judge without delay; and, upon being so signed, is filed at the Central Office, and forthwith acted upon (o). Although a receiver is only bound by bis recognizance to pass his accounts at the periods appointed by the judge, he may, at any time apply to the Court to pay in monies in his hands ; and if, in the interval between passing his accounts, he receives sums of such an amount as to make it worth while to lay them out, he ought to apply, by summons, for an order to pay them into Court (p). If the receiver does not leave his account, or pay in the balance found to be due from him, at the appointed times, any party interested in the account may apply, by summons, that he may leave his account, or pay in the balance, within a limited time (usually four days) after service upon him of the order to be made on the summons, and pay the costs of the application. The summons must be served on the receiver ; and if he does not appear, the order will be made, on produc- tion of an affidavit of service of the summons, or, where the (m) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord. as to Fees, April, 1876, Sched. (n) Dan. Pr. 1601 ; Cons. Ord. XXIV. rr. 3, 4. (o) Dan. Pr. 1601, 1602 ; Cons. Ord. XXXV. r. 54. (p) Dan. Pr. 1602, citing Shaw v. Modes, 2 Rugs. 539. RECEIVERS. 559 default consists in not making a payment into Court, of the order and certificate under which such payment is to be made ; and the Chancery Paymaster's certificate of such default must be produced in support of the application. The order is drawn up by the Registrar ; and an endorsed copy of the order must be served personally upon the receiver ; or if personal service of the order cannot be effected, an order giving leave to substi- tute service should be obtained at Chambers, on an ex parte application by summons, supported by affidavit ; and the order must be served in conformity with the directions thereby given. If, after such original or substituted service, the receiver neg- lects to obey the order, a motion may be made, on notice, for his committal for contempt in not obeying the order. This motion must be supported by affidavits of service of the order, and notice of motion, and the Chancery Paymaster's certificate of default. A similar course should be pursued against a re- ceiver who is directed to pay his balance to the parties instead of into Court, and neglects to do so (q). Where a receiver neglects to leave or pass his account, and pay the balances thereof at the time fixed by the judge for the purpose, the judge before whom such receiver has to account will from time to time, when his subsequent accounts are pro- duced to be examined and passed, not only disallow the salary therein claimed by such receiver, but also charge him with interest, after the rate of £5 per cent, per annum, upon the balances so neglected to be paid by him, during the time the same shall appear to have remained in his hands (r). In case of default by any receiver in leaving or passing any account, or in making any payment, he may be required to attend at Chambers, at a time to be appointed for that purpose, to show cause why such account has not been left or passed, or payment made ; and thereupon such directions may be given at Chambers, or by adjournment in open Court, as shall be proper to ensure the prosecution thereof by some person in- terested therein, and for the discharge of the receiver and appointment of another, and for payment of the costs incurred by any neglect or default ; or a certificate by the Chief Clerk (2) Dan. Pr. 1602, 1603. (r) Id. 1603 ; Cons. Ord. XXIV. r. 2 ; Kega., 8th Aug., 1857, r. 16. 560 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. of such neglect or default, or of any abandonment or abatement of 'the proceedings or otherwise, according to the facts, may. be made and filed, without any fee being payable thereon ; and after such certificate has been so made, unless the same is dis- charged, none of tbe parties are to be at liberty to further pro- secute the proceedings at Chambers, unless and until the Court or judge shall, upon application, make an order directing tbe same to be prosecuted; and upon such certificate becoming binding, any party may apply to the Court, and the Court may make such order relative to costs, and to relieve any party from the effect of any decree or order before made, or proceeding taken, which shall not have been duly prosecuted, or otherwise, as may be thought proper. And for the purposes aforesaid, any party, or the solicitor of the [Supreme Court], may be directed to summon the persons whose attendance is required, and to conduct any proceedings, and carry out any directions which may be given; and the costs of the solicitor of the [Supreme Court] are to be paid by such parties, or out of such funds, as the Court or judge may direct (s). Applica- tion for, by receiver himself. Applica- tion for, must not be ex parte. Applica- tion for, how made. (4.) Discliarge of Receiver (t). When a receiver has been- appointed, and has given security, he cannot be discharged upon his own application, without showing some reasonable cause why he should put the parties to the expense of a change (u). The receiver being appointed for the benefit of all parties interested will not be discharged on the ex parte application of the party at whose instance he was appointed (r) ; but when the object of his appointment has been fully effected (w), or his continuance becomes unnecessary, he will be dis- charged (a - ). The application to discharge and to vacate the recognizances may be by petition, or motion, or summons, or the direction (s) Cons. Ord. XXXV. r. 23. (t) For forms, see Daniell's Forms, 3rd ed. 906, 907. (v.) Dan. Pr. 1613. (») Faulkner v. Daniel, 3 Ha. 204 ; Bainhrigge >•. Blair, 3 Beav. 421. (w) See Teviart v. Lawson, 18 Eq. 490. (x) Seton, 4th ed. 453. RECEIVERS. 561 may be given in the decree or order on further consideration ; and the recognizances will be vacated on a proper affidavit' of payment to the party entitled to receive the balance, or on the Chancery Paymaster's or Chief Clerk's certificate (y). {y) Seton, 4tlied., 458. CHAPTEE XII. PROCEEDINGS IN THE CHANCERY PAY OFFICE. Orders to be drawn up by registrar. Printing. Sums and Clerical mistakes. (1.) Regulations as to Orders to be acted upon by the Chancery Paymaster. Every order which is to be acted upon by the Chancery Paymaster (except reports of the Masters in Lunacy confirmed by fiat, and orders drawn up by the Eegistrar in Lunacy) are to be drawn up by and entered with the Registrars of the Court ; and every order to be acted upon by the Chancery Paymaster (except the said reports) must either be wholly printed, or, in cases in which printed forms can be used, may be partly printed and partly written; but the Registrars may issue any such orders in writing if of an urgent nature (a). The printing of orders is to be under the control of the Registrars, and the orders are to be printed on cream wove machine made foolscap folio paper 18 lbs. per mill ream, or thereabouts, in pica type leaded, with an inner margin about three-quarters of an inch wide, and an outer margin about two inches and a half wide, except as to the schedule or tabular statement in any such order contained or referred to, which may be printed in such smaller type as the Registrars shall direct (6). Sums occurring in the body of every such order are to be expressed in words ; dates occurring therein, and any sums in the schedule or tabular statement, are to be expressed in figures' instead of words ; and each separate direction in such orders is, as far as may be, to be contained in a distinct paragraph ; and in all other respects such orders are to be printed in such form and manner as the Registrars shall deem expedient (c). Clerical mistakes or errors arising from any accidental slip (a) Chancery Funds Consolidated (5) Id. Rules, r. 15. (c) Id. PROCEEDINGS IN THE CHANCERY PAY OFFICE. 563 or omission in such printed orders may be amended in writing ; but no amendment is to be made in any order to provide for a new state of circumstances arising after the date of the order ; nor is any order to be amended for the purpose of extending the time thereby limited for making any payment or transfer into or deposit in Court of money or securities ; and every such amendment is to be stamped by the Clerks of Entries, or by a Master of the Supreme Court, with their or his official seal, as evidence that the duplicate or record has been also amended (d). The Kegistrars are to cause a duplicate of every printed or Duplicate partly printed order to be made at the same time with the order - original ; and the original order is to be passed by a Eegistrar in the usual way (e), and stamped with his official seal on every leaf thereof, and to be transmitted by him to the Clerks of Entries with the duplicate. The duplicate order is to be re- tained and filed by the Clerks of Entries, as the record, -and the original order, when examined and stamped by them, and marked with a reference thereon to the duplicate or record so filed, is to be returned to the Eegistrar to be delivered out to the solicitor of the party having the carriage of the order (/ ). The Eegistrar may cause to be printed additional copies of Additional printed orders, or printed portions of orders, according to the re- c °P ies - quirements of the parties or their solicitors, and such additional copies are to be transmitted to the Central Office ; and when such printed or partly printed orders have been passed and entered such additional copies upon being duly completed and signed or certified by one of the Masters of the Supreme Court and duly authenticated may be issued as office or certified copies (g). Persons who are directed by an order to pay or transfer into, Persons or deposit in Court, any money or securities must be described direi ? ted ' to in the order by name and not merely as plaintiffs or petitioners must be or the like (A). named - Every order directing money or securities to be brought into Title of Court must state, in the body of the order, the title of the cau f Jl e °\ ' -ci matter to cause or matter, and the separate account, if any, to the credit he stated. of which such money or securities are to be placed (i). The (<[} Chancery Funds Consolidated Rules, r. 18. Rules, 1. 16. (9) H. r. 19. (e) See"EntryofJudgment,"p.l53. (A) Id. r. 12. (/) Chancery Funds Consolidated (i) Id. x. 7. 2 564 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Length of title. length of the title of an account may not exceed thirty-six words^ unless sufficient reason be assigned for extending the title ; but in the case of a separate account in a cause or matter, the title of the cause or matter in which such separate account is raised is not to be reckoned in the thirty-six words (J). Procedure on order for pay- ment into Court. Lodging money to Chancery suspense account. (2.) Payment and Transfer into and Deposit in Court (k). Where an order for payment of money into Court has been obtained, the order should be taken to the Chancery Pay Office, and a direction bespoken to the Bank to receive the money and place it to the credit of the Chancery Pay Office Account ; the money and the direction should then be taken to the Bank, where a receipt will be given for the money, and the Bank will return the direction to the Chancery Pay Office with a certificate thereon that the money has been received and placed to the credit of the Chancery Pay Office Account. Upon receipt of this direction and certificate, the Chancery Paymaster will file in the Central Office his certificate of the payment, stating therein the title of the cause or matter to which the money has been placed, and an office copy of this last mentioned certificate will be received as evidence of the payment into Court therein mentioned (/). When it is desired to bring money into Court without waiting the time necessary to obtain a direction to the Bank to receive such money, it may be lodged at the Bank to a Chancery suspense account, upon a written application signed by the person desiring to lodge the same, or his solicitor, and ad- dressed to the Bank, specifying the amount and the title of the cause or matter in respect of which it is desired to be lodged ; but the person making the lodgment, or his solicitor, must forthwith bespeak a direction from the Chancery Paymaster to the Bank to receive the money and place the same to the credit of the Chancery Pay Office Account, and must produce such (j) Chancery Funds Consolidated Rules, r. 94. (&) For forms, see Daniell's Forms, 3rd ed. 1048—1064. (I) Chancery Funds Consolidated Rules, rr. 28 — 30. As to cases in which payment into Court will be ordered hostilely, see Dan. Pr. 1619 — 1628 ; Gunny. Bolckow, Vavujkcm & Co., 10 Ch. 491 ; London Syn- dicate Limited v. Lord, 8 Ch. D. 84 ; Freeman v. Cox, Id. 148. PROCEEDINGS IN THE CHANCERY PAX - OFFICE. 565 direction at the Bank for the purpose of having the money transferred to the Chancery Pay Office Account (m). Money or securities may be paid, or transferred into, or de- Paying, or posited in, Court, and be placed in the books of the Chancery *™ nsfer - Pay Office to the credit of a cause or matter, on a direction to depositing be obtained from the Chancery Paymaster upon the written ™°^;ties request of the person desirous of so paying, transferring, or de- in Court ' positing, or of his solicitor, without an order ; but such payment, ^^er transfer, or deposit, cannot be so made to a separate account in a cause (except to a security for costs account), unless such se- parate account has been directed to be opened by an order. This Applica- rule does not apply to money or securities directed by order to tl0 ] n oi be paid or transferred into or deposited in Court ; nor to monies or securities payable or transferable into Court in pursuance of an Act of Parliament or general order of the Court, by which some particular authority is required to enable the payment, transfer, or deposit to be made (n). The request must contain the title of the cause and the reference to the record, and the correctness of the reference must be authenticated by-the seal of the Masters of the Supreme Court being impressed on the re- quest (o). A person making a payment or transfer into or deposit in Court under r. 25 must forthwith give notice thereof to the solicitors on the record for the parties, or in case of a matter, to the persons interested, if known, or to their solicitors (p). A person directed by an order to make a payment or transfer Making into or deposit in Court may make the same without further P a y m « nt > order, notwithstanding the order may not have been served, or or deposit the time thereby limited for making the payment, transfer, or w ^ ere deposit may have expired ; and if any further sum of money served, or has by reason of such default become payable by such person tl . me ex " for interest or in respect of dividends, he may pay such further sum into Court upon a request under r. 25 (q) ; but such subse- quent payment, transfer, or deposit will not affect or prejudice any liability, process, or other consequences which such person may have become subject to by reason of his default in making the same within the time limited (r). Such person must forth- (m) Chancery Funds Consolidated (p) Chancery Funds Amended Rules, r. 81. Orders, r. 4. (n) Id. r. 25. (g) See swpra. (o) Id. r. 26. As to the request, (r) Chancery Funds Consolidated see further, j-. 93, in Section 7 of this Rules, i. 27. Chapter. 566 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Dividends or interest, how ascer- tained. Income tax. What securities may be directly transferred into or de- posited in Court. Procedure on order for trans- fer into Court. ■with give notice of such payment, transfer, or deposit to the solicitors of the persons upon whose application the order direct- ing the payment, transfer, or deposit was made, or to such persons, if they have no solicitors ; or if the order was made on the application of the person making such payment, transfer, or deposit, then to the solicitors of the other parties appearing on the application (s). The time for making a payment, transfer, or deposit may, if necessary, be extended by a supplemental order, referring to the former order ; such supplemental order may be made on summons at Chambers (i). Dividends or interest directed by order to be paid into Court, the amount of which cannot be ascertained at the date of the order, may be ascertained by affidavit or by statutory declara- tion under 5 & 6 Will. 4, c. 62 (w). In computing interest, income tax is to be deducted, unless the qrder otherwise directs; and the affidavit or declaration must state that' income tax, if any, has been deducted (v). " The following securities may be directly transferred, into or deposited in Court : (1.) Securities of the Government of the United Kingdom. (2.) Securities of any foreign state. (3.) Securities of any part of Her Majesty's dominions out -of the United Kingdom. (4.) Securities of any body corporate or company in the United Kingdom, or standing in books kept by any body corporate, company, or person in the United Kingdom (w). Other securities will not be received into Court except in a box (»). When an order has been obtained for a transfer into Court, it should be taken to the Chancery Pay Office, and a direction be- spoken for the transfer to be made to the account of the Pay- master-General for the time being on behalf of the Court; the securities should then be transferred accordingly, and the bank, body corporate, or company in whose books the transfer is made or registered, will return the direction to the Chancery Pay Office with a certificate thereon that the securities therein specified have been transferred to the said account. The Chancery Paymaster will thereupon file in the Central Office a (s) Chancery Funds Amended Orders, r. 4. («) Chancery Funds Consolidated Rules, r. 27. («) Id. rr. 8, 10, 86. (v) Id. r. 10. (w) Chancery Funds Act, 1872 (35 & 36 Vict. c. ii), ss. 3, 6. . {x) Seton, 4th ed. 84. PROCEEDINGS IN THE CHANCERY PAY OFFICE. 567 certificate of such transfer, stating therein the title of the cause or matter to which such securities have been placed ; and an office copy of such last-mentioned certificate will be received as evidence of the transfer into Court therein mentioned (y). Dividends received in respect of securities standing to the Dividends. Chancery Pay Office Account will be placed to the credit to which the securities whereon such dividends accrued were standing at the time of the closing of the transfer books of such * securities previously to the dividends becoming due (z). When an order for the deposit of securities in Court has been Procedure obtained, the order should be taken to the Chancery Paymaster, ? n °* del who will issue a direction to the Bank to receive and place the of seou- same to the Chancery Pay Office Account ; the direction and o* 16 ! 111 securities should then be taken to the Bank, where a receipt will be given for the securities, and .the Bank will return the direction to the Chancery Pay Office with a certificate thereon that the securities have. been received and placed to the credit of the Chancery Pay Office Account. The Chancery Paymaster will then, file in the Central Offiee a certificate of such deposit, stating therein the title of the cause or matter to which the securities have been placed ; and an office copy of such last- mentioned certificate will be received as evidence of y the Registrar on bespeaking the order, there must also be left with him the Chancery Paymaster's certificate of the fund in Court, and, if the funds are restrained by any order, the restraining order, or an office copy thereof («.) ; and if the payment is ordered to legal personal representatives, the pro- bate or letters of administration, stamped for a sufficient amount (o) ; and if the order deals with any purchase money, a consent brief for the purchaser, or an affidavit of notice to him of the intended application, and that the conveyance has been executed and delivered to him (p) ; and if 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 Chancery Paymaster's Certificate of the payment into Court of the sum sought to be dealt with, and also his certificate of the fund in Court to the credit of the undertaking, and an affidavit of the petitioner verifying the petition, and negativing any adverse right or claim (q). Order to An order directing the payment of dividends, or other (0 Dan. Pr. 1649. (p) Id. r. 30. (m) Id. 1650. ( 9 ) Id. r. 34 ; Cons. Ord. XXXIV. (») Regs., March, 1860, r. 16. t . 3 ; Re Braye, 9 Ha. App. 7. (o) Id. r. 17. PROCEEDINGS IN THE CHANCERY PAY OFFICE. 573 periodical payments, must (except in the case of dividends specify directed to be paid as they accrue due) specify the time when tlmes °* the first of such payments, and when all subsequent payments, whether quarterly, half-yearly, yearly, or otherwise shall be made (s). Persons to whom money is directed to be paid, and persons Description for or during whose lives, or other less period, payments are ° u order 8 directed to be made, must be described in the order, or in a certificate of a Chief Clerk or taxing master, by name, and not merely as plaintiffs, or petitioners, or the like ; unless such payments are to be made to trustees or other persons in suc- cession, or to representatives when no probate or administra- tion has been taken out at the date of the order or certificate (t). When the person to whom payment is directed is entitled to the money as real estate, or as trustee, executor, or adminis- trator, or otherwise than in his own right or for his own use, the fact that he is entitled to the same as real estate, or the character in which he is entitled must be stated in the order or in a certificate (u). Where payment is directed to a woman, she must be described in the order as "spinster," or "widow," or "the wife of," &c. (v). When dividends or interest not exceeding in the whole £10 Dividends in annual payments, are directed to be paid to a woman not ^ ^ C q e " married at the date of the order, and such woman afterwards per annum marries, such dividends or interest may be paid to the woman ^woman" and her husband upon proof of the marriage, and upon an affi-- who after- davit to the effect mentioned in the rule (w). ries. S "^ Where several persons are entitled to interest for life in Persons succession, the Court usually only directs payment to the first entitled in succession. for his life, and on his death a further order must be obtained ; but where the persons so entitled are husband and wife, the Court directs payment to them in succession (x). If the money is to be paid to a corporation, the application Payment may be either for payment to the treasurer thereof (naming ^J^ 01 *" him) as treasurer ; or for payment to the corporation : in the (s) Chancery Funds Consolidated before payment, see id. rr. 53, 56, in Rules r. 13. Section 6 of this Chapter. (t) Id. r. 12. W Seton, 4th ed. 91. (u) Id. r. 53. As to payment to (w) Chancery Funds Consolidated the representatives of the person Eules, r. 52. named in the order, where he dies (x) Seton, 4th ed. 92. 574 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Paymaster may defer payment of divi- dends until request left. Order must be left to obtain first dividend. ? Income tax. Order on t conditions. With- drawal of dividends placed on deposit. Sale of securities upon which dividends invested. latter case a power of attorney under the seal of the corpora- tion will be required (y). When an order has been made for the payment out of dividends to accrue on securities in Court, the Chancery Paymaster may defer giving effect thereto until a request in writing has been left at the Chancery Pay Office (2) ; but in practice this request is not required (a). Ftir the purpose of obtaining payment of the first dividend which accrues due after the date of the order, the order must be left at the Chancery Pay Office, and the Chancery Paymaster will thereupon cause a cheque to be issued, which must be indorsed by the payee or his attorney (b). For the subsequent dividends cheques will be drawn as they accrue without being bespoken (c). Where an order directs an annuity or other periodical pay- ment to be made out of- dividends on securities in Court, in respect of which dividends income tax has been deducted, the Chancery Paymaster will draw only for so much of t ne sum directed to be paid as remains after deducting income tax therefrom at the same rate as has been deducted from the dividends, unless the sum is directed to be paid without making any deduction (d). Where the order for payment contains conditions to be fulfilled before payment can be made, on the occasion of each payment evidence will be required by affidavit or statutory declaration to show that the condition has been fulfilled (e). When dividends accruing subsequently to the date of an order for their payment out have been placed on deposit, they must be withdrawn from deposit (/) ; and the dividends when so withdrawn, and any interest credited in respect thereof, will be applied in the same manner as the dividends would have been applied if they had not been placed on deposit (g). If the dividends have been invested, the securities purchased therewith will be sold, and the proceeds of sale and any divi- dends accrued in respect of such securities will be applied in (y) Seton, 4th ed. 92. (z) Chancery Funds Consolidated Rules, r. 37. (a) Daniell's FormB, 3rd ed. 1075. (6) Chancery Funds Consolidated Rules, r. 38. (c) Daniell's Forms, 3rd ed. 1075. As to payment under power of at- torney, see infra. (d) Chancery Funds Consolidated Rules, r. 59. (c) Daniell's Forms, 3rd ed. 1075. (/) Chancery Funds Consolidated Rules, rr. 74, 75. (g) Id. x. 50. PROCEEDINGS IN THE CHANCERY PAY OFFICE. 575 the same manner as the dividends invested would have been applied if they had not been invested (h) ; and the Registrar will, upon production of a certificate of investment, issue his certificate for sale (i). If the person entitled to receive principal money, or interest Power of or dividends, under an order, is unable to attend at the Chancery ^e™ 67 Pay Office to receive the cheque for the amount due to him, he P a y ee must authorise some one to act for him by a special power attend. of attorney. This power of attorney is prepared in the Chancery Pay Office. For the purpose of obtaining it, a written request must be signed by the solicitor himself bespeaking the power, or, if it is bespoken by a firm of solicitors, the request must be signed by one of the firm with his own name on behalf of the firm, and must be left with the order directing the payment at the Chancery Pay Office. The Chancery Paymaster will then prepare the power of attorney. The power when issued from the Chancery Pay Office has annexed to it instructions as to the mode of execution thereof, and also a form of affidavit of due execution thereof (/). -For preparing the power a fee of 3s. is payable by a stamp impressed on the power (£). On each occasion that a payment of dividends or other periodi- cal payments is made to a person under a power of attorney, the existence of the payee's life on the day on which the pay- Proof of ment becomes due must be proved ; this is done by means of a P. 3 :^ 6 being request sighed by the payee, under which is written a certificate from the minister and one of the churchwardens, or, in the absence of the minister, from both of the churchwardens of the parish in which the party resides ; or, if the party is resident abroad, a certificate from the ambassador, secretary of embassy, consul-general, or a notary ; or by an affidavit or statutory declaration (I). (6.) Payment of Money, and Sale, Transfer, and Delivery, of Securities and Effects out of Court (m). No securities standing to the account of the Paymaster- Order General in pursuance of the Chancery Funds Act, 1872 (»), are necessar y- (A) Chancery Funds Consolidated 1876, Sched. This is in addition to Boles, r. 48. the stamp duty. (i) Id. i. 49. (J) Daniell's Forms, 3rd ed. 1081. \j) Daniell's Forms, 3rd ed. 1080. (to) For forms, see Daniell's Forms, (&) Ord. as to Court Fees, Oct., 3rd ed. 1082— 1112. 1875, Sched. ; Ord. as to Fees, April, (») 35 & 36 Vict. c. 44. 576 INTEKLOCUTOKY AND INCIDENTAL APPLICATIONS. Applica- tion for order. Service of petition or summons. Papers to be left with registrar. Order must express amount of money ov securities. to be transferred, sold, or delivered out except in pursuance of an order of the Court (o) ; and money in Court is not to be paid out, except in pursuance of an order (p). The application for a payment, transfer, or delivery out, is made by petition or summons. When made by petition, the petition should show the state of the funds in Court and should state who are interested in the fund, and the nature of their in- terests therein (g). The petition or summons must be entitled in the cause or matter (but not in any separate account therein), to the credit of -which the money or securities are placed in the books at the Chancery Pay Office (r) ; and every petition or summons issued in a cause must be marked with a reference to the record (*). Every petition for dealing with money or secu- rities in Court chargeable with legacy or succession duty, or the dividends on such securities, must contain a statement whether the duty or any part thereof has or has not been paid (*). As to service of the petition or summons and evidence in support, and as to papers to be left with the Eegistrar on be- speaking the order, see p. 572. Every order dealing with money or securities in Court, must express the amount of money or securities standing in the books of the Chancery Pay Office at the date of such order, to the credit of the cause or matter to which the money or securi- ties to be dealt with may be placed ; and must also express the exact amount of money or securities to be dealt with, whenever it can be ascertained ; and in every case the exact amount of money or securities to be dealt with, must be expressed either in an order or in a certificate of a Chief Clerk or taxing master ; unless the money be payable for legacy or succession duty ; or be described as dividends to accrue on securities in Court, or to be brought into Court, or as interest to be credited in respect of money on deposit ; or be described as money to arise by the realisation of securities ; or be described as the residue of such dividends, interest, money, or securities respectively, after deducting an amount expressed in an order or in a certificate, (o) 35 & 36 Vict. c. 44, s. 10. {p) Chancery Funds Consolidated Eules, r. 36. An order is required even where money has been paid in under Ord. XXX. r. 4, see p. 67. (j) Daniell'a Forms, 3rd ed. 1082. (r) "Chancery Funds Consolidated Rules, r. 7. (s) Chancery Funds Amended Orders, r. 17. (*) Id. r. 11. PROCEEDINGS IN THE CHANCERY PAY OFFICE. 577 or an amount of securities directed to be realised unascertained at the date of the order directing the realisation thereof, or as an aliquot or proportionate part of such dividends, interest, money, securities, or residue respectively (w). For the purpose of ascertaining the amount of any residue or aliquot or pro- portionate part of money, securities, dividends, or interest, the Chancery Paymaster may, without any direction in the order for that purpose, receive and act upon an affidavit or statutory declaration (v). Every order dealing with money or securities in Court, must Title of state in the body of the order, and not merely by reference to cau , s . e or _ . _ in titter the title of it, the exact "title of the cause or matter and must be separate account, if any, to the credit of which the money or stated - securities dealt with are standing (w). As to description in the order of persons to whom money or Description securities are directed to be paid, transferred, or delivered, of P a y ees - see p. 573. If money or securities are directed to be paid, transferred, Provision or delivered to a person not appearing to be entitled thereto as in oase of -, , death of real estate, or as trustee, executor, or administrator, or other- pa yee. wise than in his own right or for his own use, and such person dies, the money or securities, or any portion thereof remaining unpaid, untransferred, or undelivered, may, upon proof of the death of such person, be paid, transferred, or delivered to his legal personal representatives, or to the survivors or survivor of them (x) ; but no money or securities will be so paid or trans- ferred to representatives under a probate or letters of adminis- tration granted at any time subsequent to the expiration of six years from the date of the order (y). Where money or securities are payable, transferable, or Payment to deliverable to any persons as legal personal representatives, surTlvin g such money or securities, or any portion remaining unpaid, atives. untransferred, or undelivered, may, upon proof of the death of any such representatives, be paid, transferred, or delivered to the survivors or survivor of them (2). When money in Court is directed to be paid to persons Payment to described in the order or in a certificate as co-partners, the C0 'P ttrt " («) Chancery Funds Consolidated (x) Id. r. 53. Rules, r. 8. (y) Id. r. 56. (v) Id. rr. 8, 86. (s) Id. r. 5i. (w) Id. r. 7. 578 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. money may be paid to any one or more of such co-partners; and if any of such co-partners die before payment, the money may, upon proof of death, be paid to the survivors or sur- vivor of them (a). Payment to As to payment to a corporation, see p. 573. tiou. When payment is directed to a woman, she mu st be described Payment to in the order as " spinster," or " widow," or " the wife of, &c." (b). a woman. When money or securities in Court are directed to be paid, transferred, or delivered to a woman not married at the date of the order, and before payment, transfer, or delivery the woman marries, the money, -if it does not exceed .£200, or the securities, if they or the aggregate of such securities and money do not exceed in value £200, may be paid, transferred, or delivered to the woman and her husband, upon proof of the marriage, and an affidavit of the woman and her husband of no settlement or agreement for a settlement, or identify- ing the settlement or agreement for a settlement, and stating that no other has been made or entered into, and (where there is a settlement or agreement for settlement) an affida- vit of the solicitor of the woman and her husband that such settlement or agreement does not comprise or affect the money or securities or any part thereof (c). The judges have laid down a rule, that a sum not exceeding £500, standing to the account of " A., the wife of B. C," may be ordered to be paid to the married woman on her separate receipt, with- out having her examined (cc) ; but in each case the discretion is to be exercised by the judge himself (d). Where sum As a general rule, the Court will not order payment of a fund each per-° to anv °t ner person than the person entitled thereto; but son does if the amount payable to each person does not exceed £10, the £10? XCee Court will order payment to the solicitor having the conduct of the proceedings, or to one of the parties, upon his undertaking to distribute the fund among the persons entitled thereto ; and, in general, a written authority of the persons interested must be produced, stating that they consent to the fund being so paid, (a) Chancery Funds Consolidated woman by commissioners, see Dan. Rules, rr. 53, 54. Pr. 87 90. (6) Seton, 4th ed. 91. (d) DanieU's Forms, 3rd ed. 1085, (c) Chancery Funds Consolidated citing Re Simpson's Estate, M. R in Rules, r. 52. Chambers, 14th Dec, 1876 ; and see (cc) As to examination of a married Seton, 4th ed. 668. PROCEEDINGS IN THE CHANCERY PAY OFFICE. 579 and the signatures to this authority must be verified by affidavit ; but the authority is sometimes dispensed with (e). Before an order dealing with money on deposit can be acted Bequest on, a request in writing signed by a person claiming to be j"?/ 3 *??, entitled to such money or interested therein, or by a solicitor Office. acting on his behalf, for the withdrawal of such money from deposit, must be left at the Chancery Pay Office. As soon as may be, and not later than a week after the leaving of such request, the money will be withdrawn, and will then be applied as directed by the order (/ ). Where, subsequently to the date of an order for the payment Money of money out of Court, the money has been placed on deposit, a ^fj^ te the same when withdrawn from deposit, and any interest of order for credited in respect thereof, are to be applied in the same manner P a y ment - as the money would have been applied had it not been placed on deposit (ff). When an order directs the payment out of money in Court, Paymaster the Chancery Paymaster may defer giving effect to such direc- ™™ent tion until a request in writing to give effect thereto has been until re- left at the Chancery Pay Office (#) ; but in practice this request <1 " est left- is not required, it being sufficient to leave the order at the Chancery Pay Office (h). When money is to be paid out of Court, the Chancery Pay- Mode of master will, in ordinary cases, cause a cheque to be issued, P avment - which must be endorsed by the payee named therein or his lawful attorney (i). If such cheque be not cashed within a month it becomes void (j). When money, in Court is payable to any official person for whom an account is kept at the Bank of England, the order should direct the amount to be trans- ferred to the proper account of such official person, and the Chancery Paymaster will, upon the requisition of such person, (e) Dan. Pr. 1654, 1655; Daniell's (/) Chancery Funds Consolidated Forms, 3rd ed. 1085 ; Seton, 4th ed. Kules, rr. 74, 75. 104, 105. In creditors' suits where (ff) Id. r. 50. there are numerous creditors to be (g) Id. r. 37. paid sums under £10 each, a written (A) Daniell's Forms, 3rd ed. 1082. authority is usually not required. At (i) Chancery Funds Consolidated the Rolls' Chambers, in such cases, Kules, i. 38. For procedure, where a circular is sent to each creditor in- the payee cannot attend to receive forming him that an order has been cheque, see p. 575. made to pay the amount to the solicitor, (j) Daniell's Forms, 3rd ed. 1082. on his undertaking. P P2 580 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Sale of securities. Dividends accruing subse- quently to date of order to realise. Procedure on order for trans- fer out of Court. direct the Bank to transfer the amount payable from the Chancery Pay Office account to the account of such official person (k). Where securities are directed to be sold in order to raise a sum for payment out of Court, the certificate of a Registrar of the Court must be obtained (l) ; for which purpose, the original order or an office copy thereof must be produced to the Kegis- trar (to). The order and the Registrar's certificate must then be left with the Chancery Paymaster, who will thereupon issue a direction to the Bank of England to receive the proceeds of sale and place them to the Chancery Pay Office account, and such proceeds will be placed in the books at the Chancery Pay Office to the credit to which the securities were standing at the time of the sale. Upon production of the Registrar's certificate countersigned by the Chancery Paymaster, and of the receipt from the Bank of England for the proceeds of sale, the bank, body corporate, or company, in whose books or with whom the securities sold are standing or deposited, will cause the transfer or delivery of the securities necessary to complete the sale to be made by their proper officer (»). When securities in Court are directed to be realised, and the whole of the proceeds paid out or carried over in one sum, or in aliquot or proportionate parts (except where the realisation is to raise a specific sum of money), any dividends accruing on such securities subsequent to the date of the order directing the realisation, will be added to the proceeds and applied in like manner therewith (o) ; and if such dividends have been invested, the securities purchased therewith will be sold, and the proceeds of sale applied in the same manner as the dividends so invested would have been applied if they had not been in- vested (p). Upon production of a certificate of investment, the Registrar will issue his certificate for sale (q). Where a transfer out of Court is directed, the certificate of a Registrar of the Court must be obtained (r) ; for which pur- pose, the original order or an office copy thereof must be pro- (A) Chancery Funds Consolidated (n) Id. r. 43. Eules, r. 41. (o) Id. r. 46. (I) 35 & 36 Vict. c. 44, s. 10. (p) Id. r. 48. (m) Chancery Funds Consolidated (q) Id. r. 49. Rules, i: 42. (,•) 35 & 36 Vict. c. 44, ». 10. PROCEEDINGS IN THE CHANCERY PAY OFFICE. 581 duced to the Eegistrar («). The order and the Eegistrar's certificate must then be left with the Chancery Paymaster, who will thereupon issue a direction for the transfer. This direc- tion, and the Registrar's certificate countersigned by the Chan- cery Paymaster, must be produced to the bank, body corporate, or company in whose books the securities are standing, and the transfer will thereupon be made by their proper officer, and the direction will be returned to the Chancery Pay Office with a certificate of transfer thereon (t). When securities in Court are directed to be transferred out, Dividends dividends accruing thereon, subsequently to the date of the ^™ ng order for transfer, will be paid to the persons to whom the quently to securities are directed to be transferred (u) ; or if such' divi- ° rder for dends have been invested, the securities purchased with the dividends will be transferred, and any dividends accrued in respect thereof will be paid to such persons (v) ; and upon a certificate of investment, the Registrar will issue his certificate for transfer (w). Previously to the transfer of a fund into the name of a mar- Transfer ried woman under s. 3 of the Married Women's Property Act, 1 ^ 7 ^^ 1870 (x), the form provided by the Bank under that section woman must be signed by the married woman, and lodged at the S^y-jj. Bank. c. 93. In order to obtain a delivery out of Court of securities pass- Delivery ing by delivery, the certificate of a Registrar of the Court must secur jti6s be obtained (y) ; for which purpose, the original order or an passing by office copy thereof must be produced to the Registrar (z). The c e ivery- order and Registrar's certificate must then be left with the Chancery Paymaster, who will issue a direction for the delivery out. This direction and the Registrar's certificate, counter- signed by the Chancery Paymaster, must be lodged at the Bank, and thereupon the delivery out will be made by the proper officer of the Bank. The Bank will return the direction to the Chancery Pay Office with a certificate of delivery thereon (a). (s) Chancery Funds Consolidated (#) 33 & 34 Vict. c. 93. Knles, r. 42. (y) 35 & 36 Vict. c. 44, s. 10. {t) Id. r. 45. (z) Chancery Funds Consolidated («) Id. 1: 46. Eules, r. 42. (») Id. r. 47. , (fi) Id. r. 45. (w) Id. r. 49. 582 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Dividends accruing subse- quently to date of order for delivery out. Registrar's certificate. Memoran- dum to be signed by solicitor. If subsequently to the date of the order, dividends have accrued on the securities directed to be delivered out, such dividends will be paid to the persons to whom the securities are to be delivered (6) ; or if such dividends have been invested, the securities purchased therewith will be transferred or de- livered to such persons (c) ; and upon a certificate of invest- ment, the Eegistrar will issue his certificate for transfer or delivery (d). The certificate of a Eegistrar is a necessary authority for the purpose of making any sale, transfer, or delivery out of secu- rities in Court (e). For the purpose of obtaining the certificate, the original order, or (if the absence of the original order be satisfactorily accounted for) an office copy thereof must be pro- duced to the Eegistrar. The certificate must express the exact amount of money to be raised by sale, or the exact amount and description of securities to be sold, transferred, and deli- vered out (/). The Eegistrars cannot, without a special direc- tion of a judge, be required to issue certificates for sale transfer, or delivery of securities in vacation (g). In case of the transfer out of securities, the solicitor having the conduct of the proceedings, must sign, at the foot of the certificate, a memorandum stating the name, address, and de- scription of the person into whose name the securities are to be transferred (h). Certificate of dealing with money or securi- ties. (7.) Miscellaneous Regulations (i). When securities have been purchased, sold, transferred, or delivered out, or money or securities have been carried over, or otherwise dealt with in the books of the Chancery Pay Office, the Chancery Paymaster may, in his discretion, issue a certifi- cate thereof, upon a request in writing made by or on behalf of any person claiming to be interested in such money or securities (j). (6) Chancery Funds Consolidated (g) Chancery Funds Amended Rules, r. 46. (c) Id. t. 47, (d) Id. r. 49. (c) 35 & 36 Vict. e. 44, ». 10. (/) Chancery Funds Consolidated Rules, i. 42. Orders, r. 12. (A) Dan. Pr. 1666. (s) For forms, see Daniell's Forms, 3rd ed. 1045—1047. (j) Chancery Funds Consolidated Rules, r. 89. PROCEEDINGS IN THE CHANCERY PAY OFFICE. 583 The Chancery Paymaster, upon a request in writing made by Certificate or on behalf of a person claiming to be interested in money or ?■% securities standing in the books of the Chancery Pay Office, to judge or the credit of a cause or matter stated in such request, may, in J? ?? t his discretion, issue for the information of a judge or an officer of the Court, a certificate of the amount and description of such money or securities (Fj ; but where such money or securities stand to the credit of a cause or matter contained in the official list of funds undealt with, no information will be given by the Chancery Paymaster respecting such money or securities until he has been furnished with a statement in writing by a solicitor requiring such information of the name of the person on whose behalf he applies, and that in such solicitor's opinion the applicant is beneficially interested in such money or securi- ties (7). Upon a request in writing made by or on behalf of a person Paymaster claiming to be interested in money or securities standing in the ^Loripta books at the Chancery Pay Office to the credit of a cause or of accounts. matter stated in such request, the Chancery Paymaster may, in his discretion, issue a transcript of the accounts in the said books in respect of such cause or matter (m). A fee of 2s. for each opening of the transcript is payable by a stamp impressed upon or adhesive to the transcript (n). The Chancery Paymaster may in his discretion, on a request Paymaster in writing, supply such information with respect to any trans- m , y su K>'y actions in the Chancery Pay Office as may from time to time be tion. required in any particular case (o). The request mentioned in the above rules may be either The re- written or printed, and must have written or printed thereon 1 uest - the name and address of a solicitor (p). On a request for information a fee of 2s. Gd. is payable by a stamp impressed on the request (q). If an order to bring money, securities, or effects into Court Negative within a limited time has not been complied with, a negative certlncate - (h) Chancery Funds Consolidated (o) Chancery Funds Consolidated Rules, r. 87. Enles, r. 90. (J) Id. i. 91. (P) H. r. 93. (m) Id. r. 88. (?) Ord. as to Court Fees, Oct., (n) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord. as to Fees, April, 1875, Sched. ; Ord. as to Fees, April, 1876, Sched. 1876, Sched. 584 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. certificate "will be required for the purpose of proving the fact. To obtain such a certificate such documents as would be re- quired on bespeaking a direction for bringing in the money, securities, or effects, must be left at the Chancery Pay Office (r). (r) Dan. Pr. 1635. CHAPTEE XIII. COSTS. (1.) In General. Subject to the provisions of the Judicature Acts, the costs General of and incident to all proceedings in the High Court are in the rul ® aa *° discretion of the Court ; but nothing in this rule contained is to deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in Courts of Equity ; but where any action or issue is tried by a jury, the costs are to follow the event, unless upon application made at the trial for good cause shown the judge before whom such action or issue is tried or the Court shall otherwise order (a). All the Statutes as to costs, except such of the provisions of Effect of the County Courts Act, 1867, as are preserved' by s. 67 of the Judicature Act, 1873, are repealed by Ord. LV. (6). The " event " mentioned in Ord. LV. r. 1, is the result of Decisions, the entire litigation ; it is the conclusion of the whole matter or proceeding which commenced with the writ of summons and ended with the final judgment ; so that the party who succeeds in his action 'is, in the absence of any special directions or orders, entitled to the whole costs of the entire action (c). The costs over which, under Ord. LV. r. 1, the Court has a discretion, are only the costs of proceedings which have actually come into Court, and from the time that such pro- ceedings have come into Court (d). (a) Ord. LV. r. 1. 354 ; Field v. Great Northern Ry. (b) Pwrtons v. Tinliwj, 2 C. P. Co., 3 Ex. D. 261 ; Affd. 39 L. T. 80. D 119 • Gannett v. Bradley, 3 App. (d) Re Brandreth's Trade Marie, Cas. 914. 9 Ch. D. 618. (c) Creen v. Wright, 2 C. P. D. 586 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. The Court has a discretion as to costs in the case of a petition under a statute which provides for costs (e). Where no application has been made to the judge at the trial of an action to deprive a successful plaintiff of his costs, it is nevertheless competent to the defendant to come to the divisional Court, which has jurisdiction, for good cause shown, to make an order that costs shall not follow the event ; but such application must be made promptly (/). Under the new practice a successful appellant will get his costs of appeal unless otherwise ordered (g). When order Not order made by the High Court or any judge thereof as to cannofbe costs on * v ' wmcn ^ y * aw are ^ eft to tne discretion of the Court, appealed is subject to any appeal except by leave of the Court or judge from. making such order (A). Previous The rules, orders, and practice as to costs existing before the Judicature Acts, 1873 and 1875, are, so far as not inconsistent with the Acts and Eules, to remain in force (i). Rule where As a general rule, wherever an estate or fund is administered fundis° r k v the Court, the costs of all necessary and proper parties to adminis- the proceedings are a first charge ; and must be defrayed there- the Court ou * before the claims of the persons beneficially entitled thereto are satisfied. But the costs only of those proceedings which were, in their origin, properly directed for the benefit of the estate will be ordered to be thus paid ; and the costs of any unnecessary a nd useless proceedings must be paid by the pp.rRon at whose instigation they were taken (.;*). f Costs of Trustees, agents, and receivers, accounting fairly, and pay- trustees, j n „ their money into Court, are entitled to their costs out of agents, &c. ° •> the estate, as a matter of course ; and the same rule extends to personal representatives : to wham, as they can only obtain complete exoneration by having their accounts passed in the Court, the Court will give every opportunity of exonerating themselves, by passing their accounts at the expense of the estate. The rule is not confined to cases in which they are brought before the Court as defendants : it being a general principle, that a trustee has a right to the protection of the (e) Ex parte Mercers' Co., 10 Ch. (g) Memorandum, 1 Ch. D. 41. D. 481. (h) 36 k 37 Viot. u. 66, s. 49. (/) Bowey v. BeU, 4 Q. B. D. 95 ; (i) Rules as to Costs (Special AUow- ■s v. Defriet, and Siddons v. ances), r. 28 ; Ord. LXIII. Lawrence, 40 L. T. 795. (j) D an . j> Im 1271. COSTS. 587 Court, in the execution of his trust ; he is therefore entitled to his costs, whether he comes before the Court as plaintiff or defendant, unless the act required to be done leads to no re- sponsibility, or his motive is obviously vexatious (k). Although trustees, and other persons standing in that character are generally held entitled to their costs out of the estate, yet they •will not be permitted unnecessarily to burden the fund by costs which they might have avoided : they must, therefore, as a general rule, institute or defend a suit jointly ; and if they sever, they will be allowed only one set of costs : except in some cases where there is a special reason justifying their severance (I). The provisions contained in ss. 5, 7, 8 and 10 of the County County Courts Act, 1867 (m), apply to all actions in the High Court of °°^ sAot > Justice in which any relief is sought which can be given in a County Court (n). By s. 5 of the County Courts Act, 1867, it is enacted that if in any action commenced after the passing of the Act in any of Her Majesty's Superior Courts of Record the plaintiff shall recover a sum not exceeding £20 if the action is founded on contract, or £10 if founded on tort, whether by verdict, judg- ment by default, or on demurrer, or otherwise, he shall not be entitled to any costs of suit unless the judge certify on the record that there was sufficient reason for bringing such action in such superior Court, or unless the Court or a judge at cham- bers shall by rule or order allow such costs. The word " recover " applies to all cases in which the plaintiff obtains a judgment for less than the specified amount ; as, for instance, where the action is referred ; or where money less than the specified sum is paid into Court and accepted in satisfaction'; or where the plaintiff's claim has been reduced by set off or counter-claim (o). Where an order of reference by consent provides for the costs Costs of of the action, and of the application to refer, but is silent as to reference ' the costs of the reference, the arbitrator has no power over the costs, and each party must pay his own (p). Ik) Dan. Pr. 1272. (°) Wilson, 2nd ed. 62, and oases (I) Id. 1274. there cited. (m) 30 & 81 Viet. e. 142. (i>) Built* v. King, 36 L. T. 732. (») 36 & 37 Vict. c. 66, s. 67. 588 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. In 'what cases. Where plaintiff or counter- claiming defendant resident out of the jurisdic- tion. (2.) Security for Costs (q). Security for costs may be directed to be given in (inter alia) the following cases : — (1.) Where the plaintiff or a counter-claim- ing defendant is resident out of the jurisdiction. (2.) Where the next friend of a married woman plaintiff is not a person of substance (r). (3.) Where a married woman applies for leave to sue or defend -without her husband and without a next friend (s). (4.) Where a plaintiff brings a second action to recover land against the same defendant in respect of the same premises (t). (5.) Under s. 10 of the County Courts Act, 1867 (it). (6.) Under s. 69 of , the Companies Act, 1862 (»). (7.) Under Ord. LVIII. r. 15 (w). (8). On appeal to the House of Lords (x). If the plaintiff, or his next friend, or the petitioner is re- sident out of the jurisdiction, the Court will, on the application of the defendant or respondent, order him to give security for the costs of the action or petition, and will in the meantime direct all proceedings to be stayed (y) ; but where the claim of a plaintiff resident out of the jurisdiction was admitted by the defendant, and the latter set up a set-off and counter- claim against the plaintiff in a sum exceeding the plaintiff's claim, it was held that the defendant was really the litigant party, and that he was not entitled to an order requiring the plaintiff to give security (z). Where a defendant setting up a counter-claim is resident out of the jurisdiction, the Court will order him to give security, and that for the costs of the whole action, and not of the counter-claim merely (a). A plaintiff who is a foreigner domiciled abroad, and has come to England for the purpose of bringing the action, and intends to leave England as soon as the action is decided, cannot be compelled to give security for costs (6). A party is not now entitled to security for costs on the ground that the opposite (j) For forms, see Daniell's Forms, 3rd ed. 966—976. (r) See p. 381. (s) Ord. XVI. r. 8. See p. 381. (t) 17 & 18 Vict. c. 125, s. 93. («) 30 & 31 Vict. c. 142, see infra. (v) 25 & 26 Vict. u. 89, see infra. (v>) See p. 207. (x) Seep. 219. (y) Dan. Pr. 28. (2) Winterfidd v. Bradnum, 3 Q. B. D. 324. (a) The Julia Fisher^ P. D. 115. (6) Redondo v. Ckaytor, 40 L T 797. COSTS. 589 party is resident out of the jurisdiction in Scotland or Ire- land (c). By the County Courts Act, 1867 (d), s. 10, the defendant in County any action of tort brought in a superior Court, may make ^cSTlW an affidavit that the plaintiff has no visible means of paying the ». 10. defendant's costs should a verdict be not fovind for the plaintiff, and thereupon a judge of the Court in which the action is brought has power to make an order that, unless the plaintiff shall within a time to be therein mentioned, give full security for the defendant's costs, to the satisfaction of one of the masters of the said Court, or satisfy the judge that he has a cause of action fit to be prosecuted* in the superior Court, all proceedings in the action shall be stayed, or, in the event of the plaintiff being, unable or unwilling to give such security, or failing to satisfy the judge as aforesaid, that the cause be remitted for trial before a County Court therein named. By the Judicature Act, 1873 (e), s. 67, the provisions contained in the 10th section of the County Courts Act, 1867, are to apply to all actions in the High Court of Justice, in which any relief is sought which can be given in a County Court. By the Companies Act, 1862 (/), s. 69, where a limited Companies' company is plaintiff in any action or other legal proceeding, ' any judge having jurisdiction in the matter may, if it appears by any credible testimony that there is reason to believe that, if the defendant be successful in his defence, the assets of the company will be insufficient to pay his costs, require sufficient - security to be given for such costs, and may stay all proceed- ings until such security is given. Where the plaintiffs were a limited compauy in liquidation, an order was made that they should give security for costs () Dan. Pr. 33, Zi. (») If the bond is 'for a larger sum (x) Id. 34. than £100, an additional stamp of (y) Panton v. LabertoucJie, 1 Phil. 1*. 3d. is required for each additional 265. £50 up to £300, and 2s. 6d. for 592 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Procedure where defendant dissatis- fied with bond. Procedure where defendant objects to obligor. Failure to comply with order for secu- rity. Applica- tion for costs out of money paid into Court. The defendant on receiving notice that a bond has been lodged .in the first instance, may, if dissatisfied with the bond, apply by special motion, or. summons, that in lieu of, or in addition to, such bond, the plaintiff may be ordered, -within a limited time, to give security for costs, according to the course of the Court, or, in default thereof, that the action may be dis- missed with costs, and that in the meantime all proceedings may be stayed. The application should be supported by an affidavit showing that the obligor is not a solvent person ; and may be opposed by his own affidavit, justifying in double the amount named in the bond, and by other evidence that he is a person of substance (z). Where the plaintiff in the first instance submits, for approval, the name of the proposed obligor, the defendant, if he objects to the person proposed, must notify his objection to the plain- tiff's solicitor within a reasonable time : otherwise the plaintiff may complete and lodge the bond. The plaintiff, on receiving notice of the defendant's objection, must either propose another person, or the person already offered must justify by affidavit in double the sum for which he is to be bound ; and, in the latter case, it is presumed the plaintiff should file the affidavit, and lodge the bond, and give notice thereof to the de- fendant (a). If the plaintiff fail to comply with the order to give security, the defendant may apply by special motion, or summons, that the plaintiff give security within a limited time, or, in default, that the action may be dismissed with costs ; and that proceed- ings may, in the meantime, be stayed (6). Where money has been paid into Court as security for costs, in lieu of a bond, an application may be made at Chambers, by summons, for payment thereout of any costs ordered to be paid by the plaintiff to the defendant. The summons must be served on the plaintiff, and on any co-defendants interested in the fund, and must be supported by evidence of such payment having been directed, and of the amount payable, and by pro- duction of the Chancery Paymaster's certificate of the fund being in Court (c). (z) Dan. Pr. 35. (a) Id. (6) Id. For the procedure in case it should become necessary to put the bond in suit, see Dan. Pr. 36. (c) Dan. Pr. 36. COSTS. 593 (3.) Taxation of Costs (d). The general rule of the Court is, that all costs are to be General taxed as between party and party, except where they are specially directed to be taxed as between solicitor and client ; whence it follows, that, where the direction is simply to tax the costs of the suit, it is always construed to mean as between party and party (e). As to costs to be paid or borne by another party, no costs are Costs "as to be allowed which do not appear to the taxing officer to have be !T ?en d been necessary or proper for the attainment of justice or de- party." fending the rights of the party, or which appear to the taxing officer to have been incurred through over caution, negligence, or mistake, or merely at the desire of the party (/) ; while in Costs "as taxations as between solicitor and client, the party will be b ^ w .^ en allowed as many of the charges which he would have been com- and client." pelled to pay his own solicitor, as being costs of suit, as fair justice to the other party will permit (g). In taxing a bill of costs as between solicitor and client the taxing master has no jurisdiction to decide whether items of costs necessary were made so by the negligence of the solicitor (7t). As a general rule the costs of more than two counsel will not Counsel, be allowed. The rule is not, however, inflexible, although it will not be lightly departed from (i). In a heavy suit where the junior counsel had been called within the bar, costs of three counsel were allowed (/). In Chancery actions no refreshers are allowed if the evidence is by affidavit. If the evidence is vivd voce, refreshers are allowed after the first day (k). Where it is not shown that the master has failed to exercise his dis- cretion in a reasonable manner regarding the sum to be allowed for counsel's fees and refreshers, the Court will not interfere (I). The usual counsel's fee for cross-examination of £5 5s. a day after the first day may be increased to £7 7s. in a heavy case (m). (d) For forms, see Daniell's Forms, (i) Smith y. BvUer, 19 Eq. 473. 3rd ed. 1041—1044. (}) Re Lafttte, 20 Eq. 650. (e) Dan. Pr. 1299. (*) Harrison y. Wearing, 11 Ch. (/) Kules as to Costs • (Special D. 206. Allowances), r. 26. ) H. (?) H. (»•) Ashworih v. Outram, 9 Ch. D. 483. (t) Wilson, 2nd ed. 346, 348, 354 («) See p. 4. COSTS. 595 heirs-at-law or next of kin, in which the personal or real or personal and real estate for or against or in respect of which or for an account or administration of which the demand may- be made shall be under the amount or value of £1,000. (2.) For the execution of trusts or appointment of new trustees in which the trust estate or fund shall be under the amount or value of £1,000. (3.) For dissolution of partnership or the taking of partnership or any other accounts in which the partner- ship assets or the estate or fund shall be under the amount or value of £1,000. (4.) For foreclosure or redemption, or for enforcing any charge or lien in which the mortgage whereon the suit is founded, or the charge or Ken sought to be enforced, shall be under the amount or value of £1,000. (p.) And for specific performance in which the purchase- money or consideration shall be under the amount or value of £1,000. (6.) In all proceedings under the Trustees Eelief Acts, or under the Trustee Acts, or under any of such Acts, in which the trust estate or fund to which the proceeding relates shall be under the amount or value of £1,000. (7.) In all proceedings relating to the guardianship or maintenance of infants in which the property of the infant shall be under the amount or value of £1,000. (8.) In all proceedings by original special case, and in all proceedings relating to funds carried to separate ac- counts, and in all proceedings under any Kailway or Private Act of Parliament, or under any other statutory or summary jurisdiction, and generally in all other cases where the estate or fund to be dealt with shall be under the amount or value of £1,000 (v). In causes and matters by the 34th section of the Judicature Act, 1873, assigned to the Chancery Division, the solicitor or party acting in person must, on any proceeding in which he claims to pay fees according to the lower scale, file with the proper officer a certificate in the form hereunder set forth : — (*) Rules as to Costs, Ord. VI. r. 1. Q Q 2 596 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. {Title of catcse or matter.) I hereby certify that to the best of my judgment and belief the lower scale of fees of Court is applicable to this case. Dated, &c. A. B. Solicitor for Plaintiff, or Defendant. The officer is, at the request of any solicitor or any party acting in person in the cause or matter, to mark a copy of the certificate without a fee. On production of such copy all officers of the Court are to receive and file all proceedings in the cause or matter bearing stamps according to the lower scale. In any case certified for the lower scale of Court fees, in which it shall happen that the solicitor shall become entitled to charge and be allowed according to the higher scale of solicitors' fees, the deficiency in the fees of Court is to be made good. In any case in which the fees have been paid upon the higher scale, and in which it shall happen that the solicitor shall become entitled to charge and be allowed only according to the lower scale of solicitors' fees, the excess of fees so paid may be allowed upon the taxation of costs, if the circumstances of the case shall, in the judgment of the taxing officer, justify such allowance (w). Higher Solicitors are entitled to charge and will be allowed the fees set forth in the column headed "higher scale " in the schedule to the Eules of the Supreme Court (Costs) (x), in all actions for special injunctions to restrain the commission or continuance of waste, nuisances, breaches of covenant, injuries to property and infringement of rights, easements, patents and copyrights, and other similar cases where the procuring such injunction is the principal relief sought to be obtained, and in all cases other than those to which the fees in the column headed " lower scale " are made applicable (y). Power of Notwithstanding rr. 1 and 2 of Ord. VI. of the Eules as to judge to Costs, the Court or judge may in any case direct the fees set alloweither forth in either of the said two columns to be allowed to all or either or any of the parties, and as to all or any part of the (w) Ord. as to Court Fees, Oct., (y) Eules as to Costs, Ord. VI. 1875, r. 3. r. 2. (x) See Appendix. scale. COSTS. 597 costs (2). The judge has, however, no power to delegate the discretion vested in him by this rule to a master (a). As to writs of summons requiring special indorsement, ori- Allowances ginal special cases, pleadings and affidavits in answer to inter- *, or s P e01 ^ 1 rogatories, and other special affidavits, when the higher scale is where applicable, the taxing officer may, in lieu of the allowances for hl ^ er instructions and preparing or drawing, make such allowance for plioable. work, labour, and expenses in or about the preparation of such documents as in his discretion he may think proper (6). As to drawing any pleading or other document, the fees Copy for allowed are to include any copy made for the use of the solicitor, use - agent, or client, or for counsel to settle (c). As to instructions to sue or defend, when the higher scale is Instruc- applicable, if in consequence of the instructions being taken o°jgf j Ue separately from more than three persons (not being co-partners) the taxing officer shall consider the fee provided inadequate, he may make such further allowance as he shall in his discretion consider reasonable (d). As to affidavits, when there are several deponents to be Affidavits. sworn, or it is necessary for the purpose of an affidavit being sworn to go to a distance, or to employ an agent, such reason- able allowance may be made as the taxing officer in his discre- tion may think fit («). The allowances for instructions and drawing an affidavit in answer to interrogatories and other special affidavits, and at- tending the deponent to be sworn, include all attendances on the deponent to settle and read over (/). As to delivery of pleadings, services, and notices, the fees are Services not to be allowed when the same solicitor is for both parties, ^ ^Je unless it be necessary for the purpose of making an affidavit of same soli- service {g). As to perusals, the fees are not to apply where the ^ *™ same solicitor is for both parties (h). ties. As to evidence, such just and reasonable charges and ex- Evidence, penses as appear to have been properly incurred in procuring evidence, and the attendance of witnesses, are to be allowed (i). (z) Rules as to Costs, Ord. VI. (d) Id. 1. 3. r. 3. M Id - r - 4 - (a) Corticine Floor Cloth Co. v. (/) Id. r. 5. TuU, 27 W. B. 373. (flO Id - r - 6 - (J) Rules as to Costs (Special (h) Id. r. 7. Allowances), 1-. 1. W M- r. 8. See MacUey v. Chil- (c) Id. »■. 2. Hngworth, 2 C. P. D. 273 ; TnrnbuU 598 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Agency correspond- ence. Attend- ances at Chambers. As to agency correspondence, in country agency causes and matters, if it be shown to the satisfaction of the taxing officer that such correspondenee has been special and extensive, he is to be at liberty to make such special allowance in respect thereof as in his discretion he may think proper (J). As to attendances at the judges' Chambers, where, from the length of the attendance, or from the difficulty of the case, the judge or master shall think the highest of the fees in the schedule (k) an insufficient remuneration for the services per- formed, or where the preparation of the case or matter to lay it before the judge or master in Chambers, or on a summons, shall have required skill and labour for which no fee has been allowed, the judge or master may allow such fee in lieu of the fee of £1 Is. provided by the said schedule, not exceeding £2 2s., or where the higher scale is applicable £3 3s., or in proceedings to wind up a company £5 5s., as in his discretion he may think fit ; and where the preparation of the case or matter to lay it before a judge at Chambers on a summons shall have required and received from the solicitor such extraordinary skill and labour as materially to conduce to the satisfactory and speedy disposal of the business, and therefore shall appear to the judge to deserve higher remuneration than the ordinary fees, the judge may allow to the solicitor, by a memorandum in writing expressly made for that purpose and signed by the judge, specifying distinctly the grounds of such allowance, such fee, not exceeding 10 guineas, as in his discretion he may think fit, instead of the above fees of £2 2s., £3 3s., and £5 5s. (I). As to attendance at the judges' Chambers, where by reason of the non-attendance of any party (and it is not considered expedient to proceed ex parte), or where by reason of the neglect of any party in not being prepared with any proper evidence, account, or other proceeding, the attendance is adjourned without any useful progress being made, the judge may order such an amount of costs (if any) as he shall think reasonable to be paid to the party attending by the party so absent or neglectful, or by his solicitor personally; and the party so absent or neglectful is not to be allowed any fee as against any v. Janson, 3 C. P D. 264; Stanger- Leathes v. Stanger-Zeathes, W. N. (1879), 86. (;') Rules as to Costs (Special Allowances), r. 9. (A) See Appendix. (I) Rules as to Co3ts (Special Allow- ances), i. 10. COSTS. 599 other party, or any estate or fund in which any other party is interested (to). Such costs of procuring the advice of counsel on the pleadings, Counsel evidence, and proceedings in any cause or matter as the taxing officer shall in his discretion think just and reasonable, and of procuring counsel to settle such pleadings and special affidavits as the taxing officer shall in his discretion think proper to be settled by counsel, are to be allowed ; but as to affidavits a separate fee is not to be allowed for each affidavit, but one fee for all the affidavits proper to be so settled, which are or ought to be filed at the same time (w). As to counsel attending at judges' Chambers, no costs thereof are in any case to be allowed, unless the judge certifies it to be a proper case for counsel to attend (o). As to inspection of documents under Ord. XXXI. r. 14 (p), Inspection no allowance is to be made for any notice of inspection, unless ^| e „^ u " it is shown to the satisfaction of the taxing officer that there were good and sufficient reasons for giving such notice and making such inspection (q). As to taking copies of documents in possession of another Copies of party, or extracts therefrom, under Eules of Courts or any j n posses . special order, the party entitled to take the copy or extract is sion °t to pay the solicitor of the party producing the document for p ar t y . such copy or extract as he may, by writing, require, at the rate of id. per folio ; and if the solicitor of the party producing the document refuses or neglects to supply the same, the solicitor requiring the copy or extract is to be at liberty to make it, and the solicitor for the party producing is not to be entitled to any fee in respect thereof (r). A folio is to comprise 72 words, every figure comprised in a Length of column being counted as one word (s). f ° 10- Where a petition in any cause or matter assigned to the Tender of Chancery Division is served, and notice is given to the party serT i ng served that in case of his appearance in Court his costs will be petition. objected to, and accompanied by a tender of costs for perusing the same, the amount to be tendered is to be £2 2s. The party making such payment is to be allowed the same in his costs, (m) Bales as to Costs (Special (p) See p. 511. Allowances), r. 11. (a) Rules as to Costs (Special (n) Id. r. 13. Allowances), r. 15. (o) Id. x. 14. (r Id. r. 16. (s) Id. r. If. 600 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Disallow- ance of costs in respect of unneces- sary pro- ceedings. Set-off of counter costs. provided such service was proper, but not otherwise ; but this order is without prejudice to the rights of either party to costs, or to object to costs, where no such tender is made, or where the Court or judge shall consider the party entitled, notwith- standing such notice or tender, to appear in Court. In any other case in which a solicitor of a party served necessarily or properly peruses any such petition without appearing thereon he is to be allowed a fee not exceeding £2 2s. (t). The Court or judge may, at the hearing of any cause or matter, or upon any application or procedure in any cause or matter in Court or at Chambers, and whether the same is objected to or not, direct the costs of any pleading, affidavit, evidence, notice to cross-examine witnesses, account, statement, or other proceeding, or any part thereof, which is improper, unnecessary, or contains unnecessary matter, or is of unneces- sary length, to be disallowed, or may direct the taxing officer to look into the same and to disallow the costs thereof, or of such part thereof as he shall find to be improper, unnecessary, or to contain iinnecessary matter, or to be of unnecessary length ; and in such case the party whose costs are so disallowed must pay the costs occasioned to the other parties by such unneces- sary proceeding, matter, or length ; and in any case where such question shall not have been raised before and dealt with by the Court or judge, the taxing officer may look into the same (and, as to evidence, although the same may be entered as read in any decree or order) for the purpose aforesaid, and there- upon the same consequences are to ensue as if he had been specially directed to do so (u). The taxing master must inquire into the propriety of proceedings in an action although the Court may not give any special directions to that effect (v). In any case in which under r. 18, or any other rule of Court, or by the order or direction of a Court or judge, or otherwise, a party entitled to receive costs is liable to pay costs to any other party, the taxing officer may tax the costs such party is so liable to pay, and may adjust the same by way of deduction or set-off, or may, if he shall think fit, delay the allowance of the costs such party is entitled to receive until he has paid or tendered the costs he is liable to pay; or such officer may It) Rules as to Allowances), r. 17. (») Id. r. 18. Costs (Special (v) Re Wormsky, Wormsky, 39 L. T. 85. Baines v. COSTS. 601 allow or certify the costs to be paid, and the same may be re- covered by the party entitled thereto in the same manner as costs ordered to be paid may be recovered (w). Where in the Chancery Division any question as to any costs Note of is under r. 18 dealt with at Chambers, the chief clerk is to disall ? w " ance in make a note thereof, and state the same on his allowance of Chambers, the fees for attendances at Chambers, or otherwise as may be convenient for the information of the taxing officer (as). Where any party appears upon any application or proceeding Unneces- in Court or at Chambers, in which he is not interested, or ^^ c ' oa t upon which, according to the practice of the Court, he ought Chambers, not to attend, he is not to be allowed any costs of such ap- pearance unless the Court or judge shall expressly direct such costs to be allowed (y). As to applications to extend the time for taking any pro- Applica- ceeding limited by Eules of Court (subject to any special order- ^tension as to the costs of and occasioned by any such application), of time, the costs of one application are, without special order, to be allowed as costs in the cause or matter, but (unless specially ordered) no costs are to be allowed of any further application to the party making the same as against any other party, or any estate or fund in which any other party is interested (z). As to any work and labour properly performed and not pro- Work not vided for by the Rules of the Supreme Court (Costs), and in P™ Tlded respect of which fees have heretofore been allowed, the same or similar fees are to be allowed for such work and labour as have heretofore been allowed (a). As to all fees and allowances which are discretionary, the Discretion same are, unless otherwise provided, to be allowed at the ° ffic g r _ discretion of the taxing officer, who, in the exercise of such dis- cretion, is to take into consideration the other fees and allow- ances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies, the nature and im- portance of the cause or matter, the amount involved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedings, and all other circumstances (6). (w) Bules as to Costs (Special (y) Id. r. 21. Allowances), r. 19. See Robarts v. (s) Id. r. 22. Bubs, 8 Ch. D. 198. («) Id - '• 27 - (x) Rules as to Costs (Special (i) Id. •.-. 29. Allowances), r. 20. 602 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Powers of taxing officers. Parties to attend taxation. Refusal or neglect to bring in bill or tax costs. to be to masters in rotation. Procedure to procure bill of The taxing officers of the Supreme Court, or of any division thereof, have, for the purpose of any proceeding before them, power and authority to administer oaths, and, in relation to the taxation of costs, are to perform all such duties as were per- formed by any of the masters, taxing masters, registrars, or other officers of any of the Courts whose jurisdiction is trans- ferred to the High Court of Justice or Court of Appeal, and they have, in respect thereof, such powers and authorities as previous to the commencement of the Judicature Act were vested in any of such officers, including examining witnesses, directing production of books, papers, and documents, making separate certificates or allocaturs, requiring any party to be re- presented by a separate solicitor, and to direct and adopt all such other proceedings as could be directed and adopted by any such officer on references for the taxation of costs, and taking accounts of what is due in respect of such costs, and such other accounts connected therewith as may be directed by the Court or a judge (c). The taxing officer has authority to arrange and direct what parties are to attend before him on the taxation of costs to be borne by a fund or estate, and to disallow the costs of any party whose attendance such officer shall in his discretion con- sider unnecessary in consequence of the interest of such party in such fund or estate being small or remote, or sufficiently protected by other parties interested (d). When any party entitled to costs refuses or neglects to bring in his costs for taxation, or to procure the same to be taxed, and thereby prejudices any other party, the taxing officer is at liberty to certify the costs of the other parties, and certify such refusal or neglect, or may allow such party refusing or neglect- ing a nominal or other sum for such costs, so as to prevent any other party being prejudiced by such refusal or neglect (e). All references for the taxation of costs are made to the taxing master in rotation ; or, if there has been any former taxation of costs in the same cause or matter, then to the taxing master before whom such former taxation has taken place (/). For the purpose of procuring a bill of costs to be taxed by the taxing master, the bill should be prepared, and copied (c) Rules as to Jlowances), r. 23. (d) Id. r. 24. Costs (Special (e) Id. r. 25. (/) Cons. Ord. XL. r. 2. COSTS. 603 bookwise, on foolscap paper : with a clear margin on the left costs to hand side, in order that the taxed-off amounts may be there be taxedl placed by the master in taxing the bill ; and the bill must be then left, together with a full copy of the decree or order, at the office of the proper taxing master. The copy of the decree or order is also written on foolscap paper (//), and in the margin must be written a certificate by the solicitor pro- curing the taxation, that it is a true copy of the original decree or order as passed and entered. If there has been a previous taxation in the cause or matter, the bill of costs, and the copy of the decree or order, are taken at once to the office of the master before whom the previous taxation took place. If there has been no previous taxation, the solicitor must write a certi- ficate to that efiect in the margin of the original decree or order, and of the copy ; and must take the decree or order to the offi ce of the sitting mas ter : who will insert the name of the taxing master in rotation, in a certificate prepared for him by the solicitor in the margin of the decree or order, and will sign such certificated A copy of this certificate must then be added t o the copy of the decree or order : w hich is then left with the clerk of the master in rotation (ff). On leaving the bill of costs, a warrant which is underwritten Warrant to that effect, is taken out, and must be served on the several ^ eaving parties entitled to attend the taxation ; and an appointment to proceed with the taxation must also be obtained ; but previously to the warrant to proceed being obtained th e several papers and vouchers, in respect whereof charges are contained in the bill of costs, must be left with the master's clerk. A warrant stating Warrant the time of the appointment, and underwritten with the object t0 tax - thereof, must be issued and served on the parties (h). On issuing Fees. a warrant, a fee of 2s. on the lower or 3s. on the higher scale is payable by a stamp impressed upon or adhesive to the warrant (i) ; except where costs are payable out of a fund in Court (ii). On being served with the warrant on leaving, any party Copies of entitled to attend the taxation who requires a copy of the bill ^J." should make a written application for such copy, with an under- ties, taking to pay the proper charges, to the solicitor or party by (ff) If, however, the order is (i) Ord. as to Court Fees, Oct., printed, a printed copy must be left. 1875, Sched. ; Ord. as to Fees, April, (g) Dan. Pr. 1311, 1312. 1876, Sched. (A) Id. 1312. (**) See p. 605. 604 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. whom the bill has been left (f). Upon such application and undertaking, the copies are to be made by such solicitor or party (&) ■ who is to be answerable for the same being true copies (I). The copies are to be made side for side, so as to correspond with the bills of costs left in the office (m) : the folios being numbered consecutively in the margin : and the name and address of the party or solicitor, by whom the same is made, being endorsed thereon (n) ; and they are to be ready to be delivered at the expiration of forty eight hours after the delivery of the request and undertaking, or within such other time as the Court may in any case direct ; and are to be de- livered accordingly on demand, upon payment of the proper charges (o). The copies are to be written on paper of a con- venient size, with a sufficient margin, and in a neat and legible manner, similar to that which is usually adopted by law stationers; and unless so written, the parties or solicitors delivering them are not entitled to be paid for the same (p). Where any party or solicitor who is required to deliver any such copy either refuses to deliver the same, or does not deliver the same within the time allowed for that purpose, the person making the application iB at liberty to procure a copy from the office in which the original has" been left ; in the same way as if no such application had been made to the solicitor ; and in such case no costs are payable to the solicitor so making default, in respect of the copy so applied for (q) ; and an addition of two clear days will 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 (r). Taxation. The bills are usually gone through, and compared with the papers and vouchers, by the master's principal clerk, in the presence of the parties, at an appointment made for that purpose, prior to anyattendance before the master (rr). At the appointed time for U) Cons. Ord. XXXVI. r. i. (p) Cons. Ord. XXXVI. r. 11. (J) Id. r. 5. Dan. Pr. 1313. (1) Id. i. 8. ( 2 ) Cons. Ord. XXXVI. r. 12. (m) Id. r. 7. (r) Cons. Ord. XXXVII. r. 16. (») Id. j.-. 8. (jt) If however the taxation is not (p) Id. r. 6. The charge is id. a heavy one, the clerk often goes per folio ; except in pauper cases, through the papers in the absence of when it is l|d. per folio ; Kegul. the parties, to Cons. Okl. IV. rr. 1—3. COSTS. 605 taxation, the parties attend before the master ; and the taxa- tion is proceeded with, and completed then, or at subsequent adjournments. If any parties entitled to attend the taxation fail to attend, the master will proceed in their absence, on proof by affidavit of the due service of the warrants on them. The affidavit is made before the master and indorsed on the original warrant (s). A fea of Is. 6d. is payable for the oath, by a stamp impressed upon or adhesive to the warrant (t). When the taxation is completed the master signs the bill. Signature If it is intended to enforce payment of the costs by any further ^Jgr J proceedings, or evidence of the amount is required, the items taxed are added up, and the result of the taxation ascertained by the solicitors, and checked by the taxing master's clerk ; Certificate, and a certificate of the taxation must be obtained from the taxing master and filed in the Central Office, and an office copy taken (it). The following fees are payable on taxation : Where the Fees on amount allowed does not exceed £8, on the lower scale, 2s. ; on taxatlon - the higher scale, 4s. Where the amount allowed exceeds £8, then, for every £2 allowed or fraction thereof, on the lower scale, 6d. ; on the higher scale, Is. (v). These fees are to be taken on signing the certificate, or on the allowance of the bill of costs as taxed, and are to be paid by a stamp impressed on the certificate ; but the fees will be due and payable, though no certificate or allocatur is required, on the amount of the bill as taxed, or on the amount of such part thereof as may be taxed (such amount to be fixed by the taxing officer), and in that event the proper stamps are to be affixed to the bill of costs (w). Where, however, the costs are directed to be paid out of money Where in Court, or out of the proceeds of securities in Court, the tax- °°^j ^ ing master is to certify the amount of the fees of taxation pay- be paid out able in respect of such costs, unless he shall certify that such °* ™°^ fees are included in the costs as taxed ; and the Chancery Pay- master will carry over the amount so certified to be payable from the account to which such money or proceeds are placed (*) Dan. Pr. 1314. («) Ord. aa to Court Fees, Oct., («) Ord. as to Court Fees, Oct., 1875. 1875, Sched. ; Ord. as to Fees, April, (w) Id. ; Ord. as to Fees, April, 1876, Sched. 1876. («) Dan. Pr. 1314, 1315. 606 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Direction to tax costs in case parties differ. Objection to allow- ance or disallow- ance of taxing officer. Recon- sideration of taxation by taxing officer. Applica- tion to judge to review taxation. to a separate account in the books of the Chancery Pay Office for fees of taxation (x). Where the direction is to tax costs in case the parties differ about the same, the party claiming the costs must bring the bill of costs into the taxing master's office, and give notice of his having done so to the other party ; and, at any time within eight days after such notice such other party may inspect the same, without fee, if he thinks fit ; and at or before the expira- tion of the eight days, or such further time as the taxing master in his discretion may allow, he must either agree to pay the costs or signify his dissent therefrom ; and thereupon he is at liberty to tender a sum of money for the costs ; but, if he makes no such tender, or if the party claiming the costs refuses to accept the sum so tendered, the taxing master will proceed to tax the costs ; and where the taxed costs do not exceed the sum tendered, the costs of taxation are to be borne by the party claiming the costs (y). Any party who may be dissatisfied with the allowance or dis- allowance by the taxing officer, in any bill of costs taxed by him, of the whole or any part of any item or items, may, at any time before the certificate or allocatur is signed, deliver to the other party interested therein, and carry in before the taxing officer, an objection in writing to such allowance or disallowance, specifying therein by a list, in a short and concise form, the item or items, or parts or part thereof, objected to, and may thereupon apply to the taxing officer to review the taxation in respect of the same (2). Upon such application the taxing officer will reconsider and review his taxation upon such objections, and he may, if he shall think fit, receive further evidence in respect thereof, and, if so required by either party, he will state either in his certifi- cate of taxation or allocatur, or by reference to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances relating thereto (a). Any party who may be dissatisfied with the certificate or allocatur of the taxing officer, as to any item or part of an item which may have been-objected to as aforesaid, may apply to a (x) Chancery Funds Consolidated Rules, r. 58. (!/) Cons. Ord. XL. r. 39. (z) Rules as to Costs (Special Allowances), r. 30. - (a) Id. r. 31. As to issue and service of warrant to proceed, see p. 603. COSTS. 607 judge at Chambers for an order to review the taxation as to the same item or part of an item, and the judge may thereupon make such order as to the judge may seem just ; but the cer- tificate or allocatur of the taxing officer is to be final and con- clusive as to all matters which shall not have been objected to in manner aforesaid (6). Such application will be heard and determined by the judge upon the evidence which shall have been brought in before the taxing officer, and no further evidence will be received upon the hearing thereof, unless the judge shall otherwise direct (c). When a writ of summons for the commencement of an action District is issued from a district, and when an action proceeds in a regIS ry " district registry, all fees and allowances, and rules and direc- tions relating to costs, which would be applicable to such pro- ceeding if the writ of summons were issued in London, and if the action proceeded in London, ap ply to such wr it .of su mmons issued from and othe r proceedings in the district registry (d). Where final judgment is entered in a district registry, costs are to be taxed in such registry unless the Court or a judge shall otherwise order (e). It has, however, been held that taxation of costs in a district registry should only be allowed in simple cases (/). (6) Rules as to Costs (Special (c) Ord. XXXV. r. 3. Allowances), r. 32. (/) Pay v. Whittaker, 6 Ch. D. (c) Id. r. 33. 734. (d) Id. r. 34. CHAPTER XIV. SOLICITORS. By whom admitted. Notice of admission. Affidavit of service. Articles not to be assigned. Affidavit of service with bar- rister or agent. (1.) Admission (a). Solioitoes are admitted by the Master of the Kolls (b). Every gentleman applying to be admitted a solicitor of the Supreme Court must, six weehs at least before the first day of the month in which he shall propose to be admitted, cause to be delivered at the Petty Bag Office a notice in writing, signed by himself, containing a statement of his then place of abode and the name or names and place or places of abode' of the person or persons with' whom he has served as an articled clerk during the continuance of his articles of clerkship, and con- taining, in addition theretoj a statement of his place or places of abode or service for the last preceding twelve months (c). An articled clerk, before being admitted, must make an affidavit of due service under articles of clerkship, and of delivery of notice of admission, as above mentioned (d). Articles of clerkship ought not to be assigned, but supple- mental articles should be entered into (e) ; and where supple- mental articles have been entered into an affidavit of due service thereunder will be required. An affidavit is also required where the applicant for admis- sion has served a portion of his clerkship with a barrister or special pleader (/) ; or with the London agent of the solicitor to whom he was articled (g). (a) For forms, see Daniell's Forms, 3rd ed. 1113—1116. (6) 36 & 37 Vict. c. 66, s. 87. (c) Notice of the Master of the Rolls, Jan., 1878. (d) See 6 & 7 Vict. c. 73, s. 14. As to time of service, see id., s. 3; 23 & 24 Vict. c. 127, ss. 2—5 ; 40 & 41 Vict. c. 25, n. 13 ; Kegs., Dec., 1877, r. 3. (e) Re Adams, 23 W. E. 595. (/) As to service with a barrister or special pleader, see 6 & 7 Vict. c. 73, s. 6 ; 23 & 24 Vict. c. 127, s. 6. (o-) As to service with London agent, see 6 & 7 Vict. c. 73, s. 6 ; 23 & 24 Vict. u. 127, ss. 1, 3, 4, 6. SOLICITOES. 609 The admission must be written on parchment and signed by The admis- the Master of the Rolls (/i). . sion - On admission, a stamp duty is payable of £25 by a stamp Stamp impressed upon the form of admission (i) ; and a Court fee duty - of £5 by a stamp also impressed upon the form of admis- sion (J). Admission forms, with the stamps impressed, may be obtained at the Inland Revenue Office, Somerset House. No particular days are now appointed for the admission of No parti- solicitors, as formerly : gentlemen may be admitted solicitors T^ 31 , dA P on any day on which the Master of the Rolls sits in Court. sion! Before admission, the form of admission, duly stamped, the Papers to necessary affidavit or affidavits as to service, the articles of before ad- clerkship, and supplementary articles (if any), and the mission. Examiners' certificate of having passed the Final Examination, must be left at the Petty Bag Office. " (2.) Striking off the Boll (kj. A solicitor may, upon his own application, by motion or Applica- petition of course, and upon filing a' proper affidavit, be struck tlI ij? >7 the application) off the roll, notice in writing of such intended person, application must be given to the Registrar of Solicitors fourteen clear days before the application is made, and copies of all affidavits intended to be used in support of the application must be delivered to the Registrar with the notice (n). An affidavit of service of the notice, and of the delivery of the (A) 6 & 7 Vict. c. 73, s. 15 ; 40 3rd ed. 1117—1120. & 41 Vict. c. 25, s. 23, andSched. 2, (I) 6 & 7 Vict. c. 73, s. 21 ; 23 Part 2. & 24 Vict. c. 127, s. 24 ; Daniell's (j) Stamp Act, 1870, s. 29, and Forms, 3rd ed. 1117. Sched. ( m ) E® parte Charnoch, 1 W. W. (j) Ord. as to Court Fees, Oct., & H. 548; Em parte Burrell, 11 1875, Sched. ; Ord. as to Fees, April, Jur. 1062. 1876, Sched. (») 37 & 38 Vict. c. 68, ss. 7, 8. (£) For forms, see Daniell's Forms, r. p. 610 INTERLOCUTORY ANT) INCIDENTAL APPLICATIONS. Mode of applica- tion. .Service of order. Practice where no cause shown. Entry and filing of order. tear of solici- tors may appear. copies of the affidavits, must be produced in Court when the application is made (o). The application may be made to any judge (p) ; and is by ex parte motion for an order nisi (q). It should be supported by affidavits, and should be entitled in the matter of the solicitor, and, where there is a cause or matter pending, in reference to -which the misconduct took place, it may also be entitled in such cause or matter (r). If an order nisi be granted, it should be served upon the solicitor personally; but if personal service cannot be effected, an application should be made to substitute service (s). The practice in the Chancery Division, where no cause is shown against an order nisi, is to move, ex parte, upon an affidavit of service, and the Registrar's certificate of no cause shown, to make absolute the order nisi (t) ; but it has been held by the Exchequer Division, upon a motion to make abso- lute a rule nisi, that no cause having been shown, the rule was already absolute (u). An order to strike the name of a solicitor off the roll must, before being acted upon, be produced to the Registrar of Solicitors for the purpose of being entered (») ; and must then be filed with the Clerk of the Petty Bag (w). The Registrar of Solicitors may appear on the application to strike a solicitor off the roll ; and may draw up the order if not drawn up by the applicant ; or may move that the order nisi may be made absolute (x). Notice of applica- tion. (3.) Readmission (y). On an application to readmit a solicitor of the Supreme Court who has been struck off the roll, the applicant must, six weeks before the application is intended to be made, give notice thereof, as in the case of an original admission, and the affida- vits in support of such application must be filed at the Fetty (o) 37 & 38 Vict. c. 68. (p) 36 & 37 Vict. c. 66, B . 87. (j) Smith's Pr. 116. (r) Daniell's Forms, 3rd ed. 1119, 1120. («) See N. v. T., 18 Jan. 1856, Beg. Lib. B. 324. («) Dan. Pr. 1439. («) Re M. T., 8 Kx. 63, note(l). (») 23 & 24 Vict. c. 123, s. 24. («j) Rules of Nov., 1875. (a) 37 & 38 Vict. c. 68, ss. 10, 11. (y) For forms, see Daniell's Forms, 3rd ed. 1121—1123. SOLICITORS. 611 Bag Office, and a copy thereof at the same time left with the Clerk of the Petty Bag, to be delivered by him to the Registrar of Solicitors (z). An affidavit is required of the service of the notice at the Affidavit. Petty Bag Office and the leaving there the copies of the affi- davits filed in support of the application (a). If the applicant wishes to be re-admitted on a day not six Procedure weeks distant, he must take out a summons at the Petty Bag J her f ^y ... J ~o forgiving Office, calling upon the Registrar of Solicitors to show cause notice has before the Master of the Rolls why the applicant should not be v assed - at liberty to give notice of his intention to apply for re-ad- mission notwithstanding that the day for giving notice has passed. An application for re-admission is made by petition to the AppHca- Master of the Rolls, presented at the Petty Bag Office, without tion > how the payment of any fee, and a copy of the petition must be served on the Registrar of Solicitors not less than fourteen days before the same is heard (b). The statements in the petition^ and also any other material facts on which the petitioner relies, should be verified by affidavit (c). On hearing the petition, the Master of the Rolls may dispose of the same, or may refer the same to any other division of the High Court of Justice. The order for re-admission, if granted, must be filed with the Clerk of the Petty Bag (d). (4.) Taking out and Renewing Certificate to Practice («). If a solicitor neglects for a year after his admission to take Order re- out a certificate to practice, the Registrar of Solicitors will not „^ e ^ ter afterwards grant a certificate to him except under an order of a year. the Master of the Rolls ; and if a solicitor, after having at any time taken out a stamped certificate, neglects for a whole year after the expiration thereof to renew the same for the following year, the Registrar will not afterwards grant a certificate to such solicitor except under an order of the Master of the Rolls, (2) Kales as to Re-admission, 2nd (d) Kules as to Re-admission, 2nd Nov., 1875. Nov., 1875. ( a \ id, (e) For forms, see Daniell's Forms, (j) ia. 3rd ed. 1123, 1124. (c) Daniell's Forms, 3rd ed. 1122. R E 2 612 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Notice of applica- tion after lapse of a year. Affidavit. Applica- tion to dis- pense with notice. ■who may direct the Registrar to issue a certificate to such person on such terms and conditions as he may think fit (/). On an application to take out or renew the annual certificate of a solicitor, after the lapse of a year, as above mentioned, the applicant must, six weelcs before the application is intended to be made, give notice thereof as in the case of an admission, and the affidavits in support of such application must be filed at the Petty Bag Office, and a copy thereof at the same time left with the Clerk of the Petty Bag to be delivered to the Registrar of Solicitors (g). The application is disposed of without any petition being presented or summons issued (h). An affidavit is required of the service of the notice at the Petty Bag Office, and the leaving there the copies of the affidavits filed in support of the application (t). If it is desired to make an application to dispense with the required notice of intention to take out or renew a certificate, a summons must be taken out at the Petty Bag Office, and served on the Registrar of Solicitors, calling on him to show cause within ten days, why such taking out or renewal of certi- ficate should not be allowed ; and if no cause be shown, the Master of the Rolls may make an order for allowing such certificate to be issued (j). Order necessary. Order silent as to costs. Death of solicitor or agent. (5.) Change of Solicitor or Agent (k). A party suing or defending by solicitor is not at liberty to change his solicitor without an order of the Court for that pur- pose, which order must be served on all the other parties to the proceeding, and entered at the Central Office. The order may be obtained on motion or petition of course (I). The rule now is, that an order for changing a solicitor shall be made without any provision as to payment of his costs (m). Where a solicitor dies, or where the London agent of a soli- citor dies, no order to appoint a new solicitor or agent need be (/) 23 & 24 Vict. c. 127, s. 23 ; 1875. 40 & 41 Vict. c. 25, a. 23. (ff) Rules as to taking out and renewal of certificates, 2nd Not., 1875. (ft) Daniell's Forms, 3rd ed. 1123. (i) Rules as to taking out and -renewal of certificates, 2nd Nov., 180. U) H. (*) For forms, see Daniell's Forms, 3rd ed. 1126—1133. (I) Cons. Ord. III. r. 3. Dan. Pr. 379. (m) Grant v. Holland, 3 C. P. D. SOLICITOKS. 613 obtained ; but notice of the appointment should be given to the other parties and to the proper Master of the Supreme Court (n). If on the death of the solicitor of a party, such party does not appoint another, or obtain an order giving him leave to act in person, the other side may sue out a subpoena against him to name a new solicitor (o). On sealing the subpoena a fee of 2s. 6d. on the lower or 5s. on the higher scale is payable by a stamp impressed upon the praecipe (p). The executor or administrator of a deceased plaintiff, or any Executors, new plaintiff, need not employ the former solicitor in the cause : &0 :' need A v. • ■ • * no * employ ana wnere a new solicitor is appointed, no order for the purpose former need be obtained, but notice of the name and address for solicitor ' service of the solicitor acting for the new parties should be served on the other parties and on the proper Master of the Supreme Court (q). (6.) Delivery and Taxation, of Bills of Costs under 6 & 7 Vict. c. 73 (r). No solicitor, nor any executor, administrator, or assignee (s) 6 & 7 Vict. of any solicitor may commence or maintain any action for the c - 73, s. 37. recovery of any fees, charges, or disbursements for any busi- ness done by such solicitor, until the expiration of one month (t) after such solicitor, or executor, administrator, or assignee of such solicitor shall have delivered unto the party to be charged therewith, or sent by the post to, or left for him at his count- ing-house, office of business, dwelling-house, or last known place of abode, a bill of such fees, charges, and disbursements, and which bill must either be subscribed with the proper hand of such solicitor, (or, in the case of a partnership, by any of the partners, either with his own name, or with the name or style of such partnership), or of the executor, administrator, or assignee of such solicitor, or be inclosed in or accompanied by a letter subscribed in like manner, referring to such bill (it)- (n) Dan. Pr. 1724, 1725. 3rd ed. 1134—1145. (o) Id. 1725. (s) Including trustees in bank- (p) Ord. as to Court Fees, Oct., ruptcy ; Re Walton, 4 K. & J. 78. 1875, Sched. ; Ord. as to Fees, April, (<) Calendar month ; 6 & 7 Vict. 1876, Sched. c. 73, s. 48. (q) Dan. Pr. 1725. («) 6 & 7 Vict. c. 73, s. 37. (r) For forms, see Daniell's Forms, 614 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Order of course for taxation. Order on special applica- tion for taxation. Taxation Within one calendar month from the delivery of the bill, ex- clusive of the day of delivery, the client may obtain an order for taxation under s. 37 of 6 & 7 Vict. c. 73, on motion of course or on petition of course (v ). ^fter pna mnnt.Ti. a.Tiri hfifore the ex piration of twelve from delivery — provided there has not been a verdict or writ of inquiry in an action by the solicitor to recover the amount, nor payment of the bill (not being a mere payment on account) — the order, though accompanied with such special directions as the Court may think proper to impose, is still of course, and obtained ex parte (w). When the order is obtained ex parte it should be served on the party against whom it is obtained (x). Aft er twel ve mont hs frorn delivery — and within that period, after verdict, writ of inquiry, or payment — a special applica- tion on notice must be made, a nd the order will not be made except under special circumstances to be proved to the satis- faction of the Court or judge to whom the application shall be made (y). All such special applications must be made to a judge at Chambers by summons (z) ; and should be supported by an affidavit proving the circumstance relied on (a). If a special application is made by summons when the order might have been obtained as of course, the applicant will be ordered to pay the costs of the application, although the order is made (b) ; but the objection must taken in time (c). And conversely, an order of course obtained where a special applica- tion is necessary, is liable to be discharged for irregularity, though there may be a case for granting taxation (d). The application for taxation must be entitled in the matter of the solicitor (e). Where the defendant has paid the costs indorsed on a writ (v) Blunt v. Heilop, 8 A. & E. 577 ; Be Becke, 5 Beav. 409 ; Re Bromley, 7 Beav. 488 ; Holland, v. Gwynne, 8 Beav. 124. (w) Seton, 4th ed. 607, citing Re Woodard, 18 W. R. 37 ; Be Gaits- Tcell, 1 Phill. 576; Re Pender, 2 Phill. 69. (x) Dan. Pr. 1735. (y) Seton, 4th ed. 607. (z) Gen. Ord., 17th April, 1867, . 1. (a) DanieU's Forms, 3rd ed. 1142- (6) Dan. Pr. 1735. (c) Re Hair, 11 Beav. 96. (d) Seton, 4th ed. 608. (e) 6 & 7 Vict. c. 73, s. 43. SOLICITORS. G15 of summons, he may have such costs taxed notwithstanding of costs payment, without showing special circumstances (/). Ori HI™ Where any person not the party chargeable becomes liable r. 7. to P a y> or shall have paid a bill of costs, he may make applica- Applica- tion for taxation in the same manner as the party chargeable ; thkdparty but in case application is made when a reference is not autho- for taxa- rised except under special circumstances, the judge may take tlon " into consideration any additional special circumstances applic- able to the applicant, although not applicable to the party chargeable if he had made the application (g). When a trustee, executor, or administrator becomes chargeable with any such bill, the same may, on the "application of a party interested in the property out of which such trustee, executor, or adminis- trator may have paid or be entitled to pay such bill, be referred to taxation, subject to such conditions as the judge shall think fit ; but if the solicitor shall be ordered to pay any money, the same may be ordered to be paid to such trustee; executor, or administrator, instead of to the applicant, and if the applicant shall pay money to such solicitor in respect of such bill, he shall be repaid by such trustee, executor, or ad- ministrator (gg). On an application for taxation by other persons than the party chargeable, the solicitor may be ordered to deliver a copy of the bill to the applicant on payment of the costs for the same (A). A solicitor may be authorised by a judge of the Superior Authority Courts of Law and Equity to commence an action for the ^ s° llcltor recovery of his fees, charges, or disbursements against the before a party chargeable therewith, or to refer his bill of fees, charges, ^°^^ e . and disbursements, and the demand of such solicitor thereupon, livery of to be taxed and settled by the proper officer of the Court in l ' which such reference shall be made, without any money being brought into Court, although one month shall not have expired from the delivery of the bill, on proof to the satisfaction of the judge that there is probable cause for believing that the party chargeable therewith is about to quit England, or to become a bankrupt or a liquidating or compounding debtor, or to take any other steps or do any other act which, in the opinion of the (/) Daniell's Forms, 3rd ed. 1145. this section, see Re Heritage, ex parte See Ord. III. r. 7, p. 22. Docker, 3 Q. B. D. 726. (g) 6 & 7 Viet. c. 73, a. 38. As (gg) 6 & 7 Vict. c. 73, s. 39. to what persons may apply under (h) Id. s. 40. 616 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. judge, would tend to defeat or delay such solicitor in obtaining payment (i). This section applies to claims made under 33 & 34 Vict. c. 28 (Solicitor's Act, 1870) (/). (7.) Enforcing Solicitor's Lien (&). 23 & 24 By the Solicitor's. Act, 1860 (23 & 2i Vict. c. 127), s. 28, 28° ' ' ^ ae ^ ov ^ or J u dg e before whom any proceeding has been heard or is depending, may declare that the solicitor through whose instrumentality any property of whatsoever nature has been recovered or preserved in such proceeding is entitled to a charge thereupon for his taxed costs, charges, and expenses of or in reference to such proceeding (I). Applioar The application is usually by petition, which should be *' on ™ der entitled in the cause or matter in which the property has been recovered or preserved, and in the matter of the Act; and the parties to the cause or matter should be served (m). The application must be heard by the judge before whom the cause or matter in which the property was recovered or preserved, and the costs incurred, was heard (n). (i) 38 & 39 Vict. c. 79, ». 2. 479. U) Wilkinson v. Smart, 33 L. T. (m) Daniell's Forms, 3rd ed. 1148. 573. (») Heinrich v. Svtton, 6 Ch. (Jc) For forms, see Daniell's Forms, 865; Owen v. Henshaw, 7 Ch. D. 3rd ed. 1146—1149. 385 ; Biggs v. Schroder, 3 C. P. D. {1) See BvOey v. Bullet), 8 Ch. D. 252. CHAPTER XV. ARREST ON MESNE PROCESS. (1.) Writ of Ne Exeat Regno (a). The writ of ne exeat regno is a prerogative writ which is Nature of issued to prevent a person from leaving the realm, even though wnt ' his usual residence is in foreign parts (6). The writ will not be granted except in cases of equitable When will debts and claims. To this, however, there are two exceptions : be s»nted. (1.) Where alimony was actually decreed by the Ecclesiastical Court, and no appeal was made against the decree, the writ was granted, unless the husband made it appear that he did not intend to leave the kingdom. And it is presumed the writ would now be granted under similar circumstances in the case of alimony decreed by the Divorce Court. (2.) Where there is an admitted balance due from the defendant to the plaintiff, but a larger sum is claimed by the latter (c). The equitable demand for which the writ will be issued must be certain in its nature, of a pecuniary character, and actually payable, and not contingent (d). The application for a writ of ne exeat regno is made by an ex Applica- parte motion, and may be made before service of the writ tlo " for of summons in the action. It should be made as promptly as possible, and must be supported by evidence (which is usually given by affidavit), of the existence of the debt, and of the in- tention of the party to go abroad. The affidavit is usually made by the plaintiff, unless he is under some legal disability : it must be positive ; an affidavit as to information and belief, except in case of an account, not being sufficient (e). (a) For forms, see Daniell's Forms, (c) Id. 458, 459. 3rd ed. 977—981.* (d) Id. 459. (5) Sm. Man. Eq., 12th ed. 458. (e) Dan. Pr. 1554, 1555. 618 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Undertak- ing as to damages. Copies of affidavits. Prepara- tion and issue of writ. Indorse- ments. Execution of writ. Applica- tion to discharge writ. Inquiry as to damages. The order for the writ states the amount for which security is to be given ; and before it will be made, the applicant is almost invariably required to give his undertaking to abide by any order the Court may make as to damages (/). The party making the application for the writ must furnish copies of the affidavits upon which it is granted, upon payment of the proper charges, immediately upon the receipt of an application for such copies, and an undertaking to pay the proper charges, or within such time as may be specified in such application, or as may have been directed by the Court (g). The writ must be ingrossed on parchment ; and is sealed with the seal of the Central Office. The order for the writ must be produced, and a prcecipe left, at the time the writ is presented for sealing (A). On issuing the writ a fee of 10s. on the higher, or 5s. on the lower scale is payable by a stamp im- pressed on the prcecipe (i). As to indorsement of the writ with the name and address of the solicitor or party issuing it, see Cons. Ord. III. rr. 2, 5 (p. 22). The writ must also be indorsed, in words at length, with the amount of the sum for which the defendant is to give security (J). To carry this process into effect, the writ must be delivered to the proper sheriff or other officer, with instructions for exe- cuting it ; and the sheriff, after he has executed the writ, ought to return it : indorsing upon it a proper return of what he has done (k). The party may apply by motion, with notice, to discharge the writ, on the ground of irregularity, or upon the merits, supported, if necessary, by evidence. The Court will discharge the writ upon the merits whenever it appears either that the plaintiff has no case, or that the defendant is not going out of the jurisdiction. The Court will also discharge the writ upon the defendant's paying into Court the sum for which the writ is marked (I). Where the usual undertaking as to damages has been given, the Court will, if it considers that the writ has been improperly obtained, direct an inquiry as to the damages sustained by the (/) Dan. Pr. 1557. (o-) Rules as to Costs, Ord. V. r. 10. (h) Dan. Pr. 1557. (i) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord. as to Fees, April, 1876, Sched. U) Dan. Pr. 1557. (A) Id. 1558, 1559. (Q Id. 1559, 1560. ARREST ON MESNE PROCESS. 619 defendant, and order payment of the amoiint certified in respect thereof (m). Where the defendant claims damages he should move to discharge the writ before the hearing ; otherwise he will be taken to have submitted to it (n). (2.) Arrest under the Debtors' Act, 1869 (o). Where the plaintiff in any action in which, if brought prior 32 & 33 to the 1st January, 1870, the defendant would have been liable J'g* - c- 62 ' to arrest, proves at any time before final judgment, on evidence by oath to the satisfaction of a judge, that the plaintiff has good cause of action against the defendant to the amount of £50 or upwards, and that there is probable cause for believing that the defendant is about to quit England unless he be apprehended, and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecu- tion of his action, the judge may order the defendant to be arrested and imprisoned for a period not exceeding six months, unless and until he has previously given security, not exceed- ing the amount claimed in the action, that he will not go out of England without the leave of the Court (p). Applications under the above section are made ex parte ; but Applica- the defendant may, at any time after the arrest, apply to counter- rescind or vary the order, or to be discharged from custody, or applioa- for such other relief as may be just (q). Concurrent orders may be issued for arrest in different Concurrent counties (r). order3 - The security to be given by the defendant may be a deposit Security. in Court of the amount mentioned in the order, or a bond to the plaintiff by the defendant and two sufficient sureties (or, with leave of a judge, more than two) or, with the plaintiff's consent, any other form of security. The plaintiff may, within four days after receiving particulars of the names and addresses of the proposed sureties, and the form of the proposed bond, give notice that he objects thereto, stating therein in what particulars ; and, in case of his so doing, the -sufficiency of the (m) SicheU v. Raphael, 4 L. T. 3rd ed. 982—985. 114 _ (p) 32 & 33 Vict. c. 62, s. 6. («) Zees v. Patterson, 7 Ch. D. (j) Reg. 0en. M. T. 1869, r. 6. 866. W Id - (o) For forms, see Daniell's Forms, 620 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. on pay- ment, or giving security. security will be determined by the Master, who has power to award the costs of such reference to either party. It is the plaintiff's duty to obtain an appointment for that purpose, and unless he does so within four days after giving notice of objec- tion, the security will be deemed sufficient («). Unless otherwise ordered, the costs of and consequent on an order to arrest, are costs in the cause (t). Upon payment into Court of. the amount mentioned in the order, a receipt will be given by the proper officer ; and upon receiving the bond or other security, a certificate to that effect must be given, signed or attested by the plaintiff's solicitor ; and the delivery of such receipt or certificate to the sheriff will entitle the defendant to be discharged out of custody (u). (s) Eeg. Gen. M. T. 1869, *. 7. (t) Id. r. 9. («) Id. r. 10. CHAPTEK XVI. PROHIBITION (a). A writ of prohibition is a writ issued out of the High Court Nature of of Justice to restrain inferior Courts from exceeding their juris- writ - diction (6). Where in an action brought in an inferior Court, in respect Counter- of a claim within the jurisdiction of the Court, a counter-claim clain ? ex - is, under s. 89 of the Judicature Act, 1873, set up, involving jurisdic. matter beyond the jurisdiction of the inferior Court, the High tion - Court will not prohibit the inferior Court from entertaining the counter-claim ; but the inferior Court can only give effect to the counter-claim by way of defence to the original claim (c). Where there is an absence of jurisdiction altogether in the Issue of inferior court, the writ may be issued at once ; but where the wrlt- inferior Court has a general jurisdiction in respect of the subject-matter, the writ cannot be issued until the pleadings raise some issue which the inferior Court is incompetent to try (rf). The writ may be issued even after execution (e). The writ issues as of course out of the Petty Bag Office, without any order, upon production of an affidavit, stating the proceedings in the inferior Court, and showing clearly and distinctly that the inferior Court has no jurisdiction in respect of such proceedings, or is exceeding its jurisdiction (/). It may issue on the application of any person, either a party to the proceeding in the inferior Court, or a stranger (g). (a) For forms, see Daniell's Forms, (c) Com. Dig. "Prohibition." 3rd ed. 1008, 1009. (/) Daniell's Forms, 3rd ed. 1008 ; (b) Daniell's Forms, 3rd ed. 1008. Jacobs v. Brett, 20 Bq. 5 ; Chambers (c) Davis v. Flagstaff Silver Mm- v. Oreen, Id. 552. ing Co. of Utah, 3 C. P. D. 228 ; (g) Jacobs v. Brett, sup. As to Affd. id. 234. setting aside writ where issued by a (d) Mayor, &c, of London v. stranger, see Chambers v. Green, swp. ; Cox, 2 H. L. 239. Mis v. Fleming, 1 0. P. D. 237. 622 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Affidavit. To whom writ di- rected. Service of writ. Where writ issued to County Court. The affidavit upon which the writ issues may be entitled in the matter of the proceeding in the inferior Court (h). The writ should be engrossed on parchment, and should be directed to the judge of the inferior Court, and to the plaintiff proceeding therein (i). On issuing the writ a fee of 10s. on the higher, or 5s. on the lower scale is payable by a stamp impressed upon the pxcecipe (/). The writ should be served upon the judge of the inferior Court, and also upon the parties to the proceeding there ; and ' if the judge or any party proceeds after the prohibition, it is a contempt of Court (&). Where the writ is issued to a County Court, it must be lodged with the Kegistrar thereof, and notice given to the opposite party two clear days before the day fixed for hearing the cause, otherwise the party obtaining the writ may be ordered to pay the costs of the day (I). (A) Daniell's Forms, 3rd ed. 1009. (i) Id. (j) Ord. as to Court Fees, Oct., 1875, Sched. ; Ord. as to Fees, April, 1876, Sched. (Jk) Daniell's Forms, 3rd ed. 1009. {I) 19 & 20 Vict. c. 108, s. 41. CHAPTER XVII. TIME. Where by the Eules of Court or by any judgment or order Months. given, or made after the commencement of the Judicature Acts, time for doing any act or taking any proceeding is limited by months, not expressed to be lunar months, such time is com- puted by calendar months (a). Where any limited time less than six days from or after any L ess than date or event is appointed or allowed for doing any act or six days, taking any proceeding, Sunday, Christmas Day, and Good Friday are not reckoned in the computation of such limited time (6). Where the limited period is not less than six days Sundays are counted (c). Where the time for doing any act or taking any proceeding D ays w h en expires on a Sunday, or other day on which the offices are offices closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding will, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open (d). Under this rule, where the eight days limited for appeals from Chambers expire on a Sunday, the motion may be made on the next day (e). No pleadings are to be amended or delivered in the long Long vaca- vacation, unless directed by a Court or judge (/). tion - The time of the long vacation is not to be reckoned in the computation of the times appointed or allowed by the Eules for filing, amending, or delivering any pleading, unless otherwise directed by a Court or a judge {g). (a) Ord. IiVII. t. 1. (e) Taylor v. Jones, 45 L. J. (C. (b) Id. r. 2. P.), HO. (c) Ex parte Vimey, W. N. (1877), (/) Ord. LTII. r. 4. 53. (?) Id - r - 5 - (d) Ord. LVII. r. 3. 624 INTERLOCUTORY AND INCIDENTAL APPLICATIONS. Enlarging A Court or a judge has power to enlarge or abridge the time ing time, appointed by the Kules, or fixed by any order enlarging time, for doing any act, or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed (h). (A) Ord. LVII. r. 6. APPENDIX. SCHEDULE TO THE EULES OF THE SUPEEME COUET (COSTS). i* An Order or Rule herein referred to by number shall mean the Order or Rule so numbered in the First Schedule to the Supreme Court of Judicature Act, 1875. "Weits, Summonses, and Warrants, Lower Scale. & S. d. Writ of summons for the commencement of any action .068 And for indorsement of claim, if special . . ..060 Concurrent "writ of summons 6 8 Renewal of a writ of summons 6 8 Notice of a writ for service in lieu of writ out of jurisdic- tion 040 Writ of inquiry 110 Writ of mandamus or injunction 10 Or per folio . . 014 Writ of subpoena ad testificandum duces tecum . .068 And if more than four folios, for each folio beyond four .014 Writ or writs of subpoena ad testificandum for any number of persons not exceeding three, and the same for every additional number not exceeding three ..068 Writ of distringas, pursuant to statute 5 Yict. c. 8 (a) . 13 4 Writ of execution, or other writ to enforce any judgment or order . . 070 And if more than four folios, for each folio beyond four .014 Procuring a writ of execution or notice to the sheriff, marked with a seal of renewal 6 8 Notice thereof to serve on sheriff 4 Any writ not included in the above 7 These fees include all indorsements and copies, or praecipes, for the officer sealing them, and attendances to issue or seal, but not the Court fees. (a) This refers to the 5 Vict. c. 5, see p. 645. Higher Scale. £ s. d. 13 4 5 6 8 6 8 5 1 1 1 1 1 4 6 8 1 4 6 8 13 4 10 1 4 6 8 5 10 Higher Scale. & s. d. 6 8 1 1 2 4 626 APPENDIX. Lower Scale. £ s. d. Summons to attend at Judges' Chambers . . . .030 Or if special, at taxing officer's discretion, not exceeding .068 Copy for the judge, when required 2 Or per folio Original summons for proceedings in Chambers in the Chancery Division . . - 13 4 110 And attending to get same and duplicate sealed, and at the proper office to file duplicate and get copies for service stamped 13 4 13 4 Copy for the judge 020 020 Or per folio 004 Indorsing same and copies under 8th rule of the 35th of the Consolidated General Orders of the Court of Chancery -068 068 Services, Notices, and Demands. Service of any writ, summons, warrant, interrogatories, petition, order, notice, or demand on a party who has not entered an appearance, and if not authorised to be served by post 050 050 If served at a distance of more than two miles from the nearest place of business, or office of the solicitor serving the same, for each mile beyond such two miles therefrom 010 010 Where, in consequence of the distance of the party to be served, it is proper to effect such service through an agent (other than the London agent), for correspon- dence in addition 070 070 Where more than one attendance is necessary to effect service, or to ground an application for substituted service, such further allowance may be made as the taxing officer shall think fit. For service out of the jurisdiction such allowance is to be made as the taxing officer shall think fit. Service where an appearance has been entered on the solicitor or party 026 026 Or if authorised to be served by post . . . .016 016 Where any writ, order, and notice, or any two of them, have to be served together, one fee only for service is to be allowed. In addition to the above fees, the following' allowances are to be made : — As to writs, if exceeding two folios, for copy for service, per folio beyond such two 004 004 As to summons to attend at Judges' Chambers, for each copy to serve 010 020 Or per folio 004 004 APPENDIX. 627 Lower Scale. Higher Scale. £ s. d. £ s. d. As to notices in proceedings to wind up companies, for preparing or filling up each notice to creditors to attend and receive debts, and to contributories to settle list of contributories 010 010 And for preparing or filling up each notice to contribu- tories to be served with a general order for a call, or an order for payment of a call . -. . . ..010 010 And for drawing notice to be served on contributories or creditors of a meeting, per folio 10 10 For each copy of the last-mentioned notice to serve, per folio 004 00 For preparing or filling up for service in any other cause or matter, each notice to creditors to prove claims, and each notice that cheques may be received, specifying the amount to be received for principal and interest, and costs, if any 010 010 For preparing notice to produce or admit, and one copy .050 076 If special or necessarily long, such allowance as the taxing officer shall think proper, not exceeding per folio ..008 014 And for each copy beyond the first, such allowance as the taxing master shall think proper, not exceeding per folio 004 For preparing notice of motion 2 Or per folio 010 Copy for service 010 Or per folio — For preparing any necessary or proper notice, not other- wise provided for, and demand 016 016 Or if special, and necessarily exceeding three folios, for preparing same, for each folio beyond three . . .010 010 And for each copy for service, per folio beyond such three 4 4 Copies for service of interrogatories and petitions, and of orders with necessary notices (if any) to accompany, per folio 004 00 Except as otherwise provided, the allowances for services include copies for service. Where notice of filing affidavits is required, only one notice is to be allowed for a set of affidavits filed, or which ought to be filed together. In proceedings to wind up a company, the usual charges relating to printing shall be allowed in lieu of copies for service, where the fee for copies would exceed the charges for printing, and amount to more than £3. Where any appointment is or ought to be adjourned, service of a notice of the adjournment, or next appoint- ment, is not to be allowed. s s 2 4 5 1 1 4 628 APPENDIX. Appkarances. Lower Scale. Higher Scale. £i a. d. £ 0. d. Entering any appearances 068 068 If entered at one time, for more than one person, for every defendant beyond the first 10 2 If a person appearing to a, writ of summons to recover land limits his defence by his memorandum of appear- ance, in addition to the above 6 8 6 8 8 13 4 i 2 2 8 13 4 8 13 4 Instructions. To sue or defend 6 For statement of complaint 13 For statement or further statement of defence . ..06 For counter claim 6 For reply by plaintiff when defendant sets up a counter claim 13 4 110 For reply or further reply in any other case by plaintiff or other person, with or without joinder of issue . .068 13 4 For confession of defence 068 13 4 For joinder of issue without other matter and for de- murrer 068 13 4 For special case, special petition, any other pleading (not being a summons), and interrogatories for examination of a party or witness 068 13 4 To amend any pleading . , 068 13 4 For affidavit in answer to interrogatories, and other special affidavits 068 068 To appeal 13 4 110 To add parties by order of Court or judge . . ..068 13 4 For counsel to advise on evidence when the evidence in chief is to be taken orally 068 068 Or not to exceed 13 4 110 For counsel to make any application to a Court or judge where no other brief . . . . . .068 10 For brief on motion for special injunction , . . . 13 4 110 For brief on hearing or trial of action upon notice of trial given, whether such trial be before a judge, with or without a jury, or before an official or special referee, or on trial of an isBue of fact before a judge, com- missioner, or referee, or on assessment of damages .110 2 2 For such brief, and for brief on the hearing of an appeal when witnesses are to be examined or cross-examined, such fee may be allowed as the taxing officer shall think fit, having regard to all the circumstances of the case, and to other allowances, if any, for attendances on witnesses and procuring evidence. The fees for instructions for brief are not to apply to a hearing on further consideration. Higher Scale. £ s. d. 1 1 1 10 1 1 1 1 APPENDIX. 629 Drawing Pleadings and other Documents. Lower Scale. £ s. d. Statement of claim 10 Or per folio 010 Statement of defence 5 Or per folio 010 Statement of defence and counter claim . . . .050 Or per folio 010 Reply, with or without joinder of issue, confession of de- fence, joinder of issue without other matter, demurrer, and any other pleading (not being a petition or sum- mons) and amendments of any pleading . . .050 0100 Or per folio 010 010 Particulars, breaches, and objections, when required, and one copy to deliver 050 068 Or such amount as the taxing officer shall think fit, not exceeding per folio 008 014 If more than one copy to be delivered, for each other copy per folio 004 004 Special case, whether original or in an action, affidavits in answer to interrogatories and other special affidavits, special petitions, and interrogatories, per folio . ..010 010 Brief, on trial or hearing of cause, issue of fact, assess- ment of damages, examination of witnesses, demurrer, special case and petition before a Court or judge, sheriff, commissioner, referee, examiner, or officer of the Court, when necessary and proper in addition to pleadings, in- cluding necessary and proper observations, per folio .010 Brief on application to add parties 6 8 Or per folio 010 Brief on further consideration, per sheet of 10 folios .068 Accounts, statements, and other documents for the Judges' Chambers, when required, and fair copy to leave, per folio 008 014 Advertisements to be signed by judge's clerk, including attendance therefor 068 13 4 Bill of costs for taxation, including copy for the taxing officer (J) . 008 008 (6) 8d. per folio is doubtless meant. 1 10 1 6 8 630 APPENDIX. Copies. Lower Scale. Higher Scale. £ 0. d. £ 0. d. Of pleadings, briefs, and other documents where no other provision is made, at per folio 004 004 Where, pursuant to rules of Court any pleading, special case or petition of right, or evidence is printed, the solicitor of the party printing shall be allowed for a copy for the printer (except when made by the officer of the Court), at per folio 004 004 And for examining the proof print, at per folio . ..002 002 And for printing the amount actually and properly paid to the printer, not exceeding per folio (e) . .010 010 And in addition for every 20 beyond the first 20 copies, at per folio (c) . 1 1 And where any part shall properly be printed in a foreign language, or as a f ac-simile, or in any unusual or special manner, or where any alteration in the docu- ment being printed becomes necessary after the first proof, such further allowance shall be made as the tax- ing officer shall think reasonable. These allowances are to include all attendances on the printer. The solicitor for a party entitled to take printed copies shall be allowed, for such number of copies as he shall necessarily or properly take, the amount he shall pay therefor. In addition to the allowances for printing and taking printed copies, there shall be allowed for such printed copies as may be necessary or proper for the following but for no other purposes (videlicet) : Of any pleading for delivery to the opposite party, or filing in default of appearance Of any special case for filing •Of any petition of right for presentation, if presented in print, and for the solicitor of the Treasury, and service on any party Of any pleading, special case, or petition of right, for the use of the Court or judge Of any affidavit to be sworn to in print .... And of any pleading, special case, petition of right, or evidence for the use of counsel in Court, and in country agency causes when proper to be sent as a close copy for the use of the country solicitor, at per folio ..002 003 (c) By r. 20 of June, 1876, these in addition, for every twenty beyond the charges are altered as follows: — "The first twenty copies of any document not allowance for printing a document not exceeding twenty-four folios, 2«." exceeding ten folios, shall he 10s., and, APPENDIX. 631 Lower Scale. Higher Scale. & s. d. £ s. d. Such additional allowances for printed copies for the Court or judge, and for counsel, are not to he made where written copies have been made previously to printing, and are not in any case to he made more than once in the progress of the cause. Close copies, whether printed or written, are not to be allowed as of course, but the allowance is to depend on the propriety of making or sending the copies, which in each case is to be shown and considered by the taxing officer. Inserting amendments in a printed copy of any pleading, special case, or petition of right, when not reprinted .010 050 Or per folio . . . . * 004 004 Perusals. Of statement of complaint, statement of defence, reply, joinder of issue, demurrer, and other pleading (not being » petition or summons) by the solicitor of the party to whom the same are delivered . . . .06 Or per folio — Of amendment of any such pleading in writing . .06 Or per folio — If same reprinted 6 1 Or per folio of amendment — Of interrogatories to be answered by a party by his solicitor 6! Or per folio — Of special case by the solicitor of any party except the one by whom it is prepared 6! Or per folio — Of copy order to add parties, notice of defendant's claim against any person not a party to the action under Order XVI., rule 18, and of defendant's statement of defence and counter claim served on a, person not a party under Order XXII., rule 6, by the solicitor of the party served therewith, and in these several cases the perusal of the plaintiff's statement of complaint is also to be allowed unless the solicitor has been pre- viously allowed such perusal 068 0134 Or per folio — 004 Of notice to produce and notice to admit by the solicitor of the party served 068 13 4 Of affidavit in answer to interrogatories by the solicitor of the party interrogating, and of other special affi- davits by the solicitor of the party against whom the same can be read, per folio 004 004 13 4 4 6 8 4 13 i 4 13 4 4 13 4 4 63a APPENDIX. ATTENDANCES. Lower Scale. Higher Scale. £ s. d. £ s. d. To obtain consent of next friend to sue in his name . .068 13 4 To deliver or file any pleading (not being a petition or summdns) and a special case 034 068 To inspect, or produce for inspection, documents pursuant to a notice to admit 068 13 4 Or per hour . . 068 068 To examine and sign admissions 6 8 13 4 To inspect, or produce for inspection, documents referred to in any pleading or affidavit, pursuant to notice under Order XXXI., rule 14 ;.068 6 8' Or per hour 068 068 To obtain or give any necessary or proper consent ..068 068 To obtain an appointment to examine witnesses . .068 068 On examination of witnesses before any examiner, com- missioner, officer, or other person 13 4 13 4 Or according to circumstances, not to exceed , . .220 220 Or if without counsel, not to exceed — 3 3 On deponents being sworn, or by a solicitor or his clerk to be sworn, to an affidavit in answer to interrogatories or .other special affidavit 068 Q68 On" a summons at Judges' Chambers 6 8 6 8 Or according to circumstances, not to exceed . . .110 J 1 In the Chancery Division, all allowances for attending at the Judges' Chambers are to be by the judge or chief clerk as heretofore. To file chief .clerks' and taxing masters' certificates, and get copy marked as an office copy 068 068 On counsel with brief or other papers — If counsel's fee one guinea 034 068 J£ more and under five guineas 6 8 6 8 If five guineas and under twenty guineas . . .068 13 4 If twenty guineas 13 4 110 If forty guineas or more — 2 2 On consultation or conference with counsel . . . . 13 4 13 4 To enter or set down action, demurrer, special case, or appeal, for hearing or trial 068 068 In Court on motion of course and on counsel and for order 10 13 4 To present petition for order of course and for order . .068 0134 In Court on every special motion, each day . . ..068 13 4 On same when heard each day 13 4 13 4 Or according to circumstances 110 220 On demurrer, special case, or special petition, or applica- tion adjourned from the Judges' Chambers, when in the Bpecial paper for the day, or likely to be heard . .068 10 On same when heard 13 4 110 Or according to circumstances, not to exceed . . .110 2 2 APPENDIX. 633 Lower Scale. Higher Scale. & s. d. £ c d. On hearing or trial of any cause, or matter, or issue of fact, in. London or Middlesex, or the town where the solicitor resides or carries on business, whether before a judge with or without a jury, or commissioner, or referee, or on assessment of damages, when in the P a Per * . . . 10 10 When heard or tried 13 4 110 Or according to circumstances 220 220 When not in London or Middlesex, nor in the town where the solicitor resides or carries on business, for each day (except Sundays) he is necessarily absent .220 330 And expenses (besides actual reasonable travelling ex- penses) each day, including Sundays . . . .110 110 Or if the solicitor has to attend on more than one trial or assessment at the same time and place, in each case .110 1 11 6 The expenses in such case to be rateably divided. To hear judgment when same adjourned . . ..068 13 4 Or according to circumstances 13 4 110 • To deliver papers (when required) for the use of a judge prior to a hearing 068 068 If more than one judge 13 4 13 4 On taxation of a bill of costs 068 068 Or according to circumstances, not to exceed . . .220 220 In causes for purposes within the cognizance of the Court of Chancery before the Act passed, such further fee as the taxing officer may think fit, not exceeding the allowances heretofore made. To obtain or give an undertaking to appear . . ..068 To present a special petition, and for same answered .068 On printer to insert advertisement in Gazette . . .068 On printer to insert same in other papers, each printer . — Or every two 068 — On registrar to certify that a cause set down is settled, or for any reason not to come into the paper for hearing .068 068 For an order 'drawn up by chief clerk, and to get same entered t .068 068 On counsel to procure certificate that cause proper to be heard as a short cause, and on registrar to mark same .068 To mark conveyancing counsel or taxing master . .068 For preparing and drawing up an order made at Chambers in proceedings to wind up a company and attending for same, and to get same entered 13 4 And for engrossing every such order, per folio . . .004 Note.— An order of course means an order made on an ex parte application, and to which a party is en- titled as of right on his own statement and at his own risk. 6 8 6 8 6 8 6 8 6 8 6 8 13 4 4 634 APPENDIX. Oaths and Exhibits. Lower Scale. Higher Scale. £ s. d. & s. d. Commissioners to take oaths or affidavits. For every oath, declaration, affirmation, or attestation upon honour in London or the country 016 016 The solicitor for preparing each exhibit in town or country . . . 010 010 The commissioner for marking each exhibit . ..010 010 Teem Fees. Fot every term commencing on the day the sittings in London and Middlesex of the High Court of Justice commence, and terminating on the day preceding the next such sittings, in which a proceeding in the cause or matter by or affecting the party, other than the issuing and serving the writ of summons, shall take place 15 15 And further, in country agency causes or matters, for letters 060 060 Where no proceeding in the cause or matter is taken which carries a term fee, a charge for letters may be allowed, if the circumstances require it. In addition to the above an allowance is to be made for the necessary expense of postages, carriage and trans- mission of documents. INDEX. ABATEMENT, plea in, 76 ACCOUNT, claim for, on writ, 24 ' order for, 61 proceedings where writ indorsed with claim for, 66 decision of matters of, 135 ACCOUNTS may be ordered to be taken in District Registry, 396 additional, 420 general directions as to, 429 direction to Registrar to draw order for, 430 affidavit of verification of, 430 in administration actions, 430 how prepared, 430 further account, 431 notice of leaving, 431 notice of charging accounting party beyond what he has admitted, 431 vouching, 431 special directions, 432 just allowances, 432 certificate of result, 432 fees on taking, 433 application for order for, 519 of receiver, 556 — 560 ADDRESS, indorsements as to, on writ, 22, 23 ADJOURNMENT from Court to Chambers, and vice versa, 449 ADMINISTRATION, rule as to, in Judicature Act, 1875, 423 ADMINISTRATION SUMMONS, by whom obtainable, 411 real estate, 411 where not applicable, 411 issue of, 412 operation of, as a lis pendens, 412 service out of jurisdiction, 412 evidence in support of, 412 appearance to, 413 order on hearing, 413 where order refused, 413 stay of proceedings on payment of claim, 41 INDEX. ADMINISTEATOES. See " EXECUTOBS AND Administeators." ADMISSION of facts in pleadings, 89 — 91. ADMISSIONS by notice, 103 by mutual agreement, 103 when allegations of fact in pleadings operate as, 103 ADVANCEMENT of infants, 453—455 ADVERTISEMENTS under Partition Act, 16, 17 under Settled Estates Act, 277, 278 for claims, 420 AFFIDAVIT of service of writ, 51 as to no defence, 64 power of Court or judge to order facts to be proved by, 118 consent to take evidence by, 118 time for filing affidavits, 118 further affidavits, 119 cross-examination on, 119 how prepared, 120 description of deponent, 121 subject-matter, 121 schedules, 122 exhibits, 122 before whom sworn, 122, 123 how sworn, 123, 124 jurat, 124 fees, 125 alterations, &c., 125 statement at foot of, 125 filing, and procuring office copies, 125, 126 furnishing copies, 126, 127 notice of filing, 127 notice of intention to use affidavits previously filed, 127, 128 scandalous and irrelevant matter, 128 in interpleader action, 253 in action to perpetuate testimony, 255 , under Trustee Relief Acts, 300 of claimant of money paid, into Court under Lands Clauses Act, 331 in support of claim, 27 by auctioneer in case of sale by order of Court, 441 to obtain distringas, 545 ALLOTMENT by Partition Commissioners, 228 ALLOWANCE pending litigation, 409 ALTERATIONS in affidavits, 125 in summonses, 398 in verified accounts, 406 INDEX. 637 AMENDMENT of writ of summons, 29 — 31 of statement of claim where defendant added, 73 of pleadings, 91 — 96 of writs of execution, 196 of originating summons, 402 of petition, 478 of special case, 521 ANNUITIES, inquiries as to, 427, 428 APPEAL from judgment in an interpleader issue, 44 judge may not hear, from his own judgment, 200 number of judges required to hear, 200 from order in Chambers. 202 by consent, 203 as to costs only, 203 none, where any Act provides that decision of judge shall be final, 203,204 where matter within judge's discretion, 204 notice of, 205 service of notice, 205 time limited for, 205 final and interlocutory applications distinguished, 205 refusal of application, 206 Special leave, 207 security for costs, 207, 208 to Court of Appeal after refusal of ex parte application below, 209 in winding-up cases, 209 setting down, 209, 210 registrar's notice as to certain interlocutory orders, 210 withdrawal of, 210 notice in lieu of cross-appeal, 211 by a person not a party, 211 brief on, 211 powers of Court of, 212 evidence on, 2l2, 213 to House of Lords, 215—224 from orders as to charities, 286 from District Registrar, 397 from order at Chambers, 409 stay of proceedings pending, 487 where none from order as to costs, 586 APPEAEANCE by persons not parties, 14 what is, 39 conditional, 39, 41, 42, 49 where to be entered, 39 how entered, 39 by partners, 40, 387 by persons trading in name of firm, 40 may be entered any time before judgment, 40 for several defendants at same time, 40 fees on entering, 40 notice of, 40 after judgment, 41 as landlord, 41 in action to recover land 42 638 INDEX. APPEARANCE— continued. course where none entered in action to recover land, 69 course where none entered in actions assigned to Chancery Division, 62 proceedings to set aside judgment for want of, 62, 63 application to set aside, 64 to originating summons, 403 to administration summons, 413 ARBITRATION. See " References to Referees and Arbitrators." ARBITRATORS. See " References to Referees and Arbitrators." ARREST ON MESNE PROCESS by writ ne exeat regno, 617 under Debtors Act, 1869, 619 ASSESSORS, trials with, 145 ATTACHMENT of debts, 181—183 in what cases writ of, may be issued, 190 effect of writ of, 190 leave to issue, 190 affidavit to support motion for, 190 costs of application for, 191 preparation of writ of, 191 return of writ, 191, 192 discharge of writ, 192 AWARD. See " References to Referees and Arbitrators." BANKRUPTCY of sole plaintiff, 13 of some of several defendants, 14 claims by trustee in, 25 BIDDINGS. See " Sale." BOUNDARIES, settlement of, 236 BRIEF, contents of, 141, 142 on motion for judgment, 152 on further consideration, 163 on appeal, 211 on motion, 470 on petition, 477 on special case, 522 BURIAL ACTS, jurisdiction of Chancery Division under, 362 CARRYING OVER FUND IN COURT, procedure under order for, 571 CAUSES OF ACTION, order confining action to certain, 26 joinder of, 24—26 order for separate trials of different, 136 INDEX. 639 CEPI CORPUS, return of, 191 CERTIFICATE of allotment, 229 And see " Chief Clebk's Certificate." CERTIORARI, writ of, 496, 497 CESTUI QUE TRUST may have decree for administration, 6 CESTUI QUE VIE, Act for production of, 363 CHAMBERS, appeal from, 202 * orders in, 392, 408, 409 business disposed of in, 392 — 394 staff of, 394 delay in proceedings in, 396 register of proceedings in. 396 summons and appointment book, 396 daily lists, 396 evidence in, 405 — 408 parties entitled to attend at, 417 — 419 adjournment to, from Court, 449 adjournment from, to Court, 449 And see "Accounts." — "Chief Cleek's Certificate." — " Summonses at Chambees." CHANGE OP PARTIES. See " Parties." CHARGING ORDERS, general rule as to, 183 Acts relating to, 183, 184 when may be obtained, 184 nisi, 184 absolute, 185 where fund in Court, 185 v CHARITIES, Sir S.Romilly's Act, 283, 284 jurisdiction as to, 284—286, 290 of County Courts as to, 286 applications at Chambers as to, 286, 287 vesting orders, 288 official trustee of charity lands, 288, 289 orders as to transfer of stock, &c., 289 appeal from Chambers, 290 orders made by mistake, 290 appeal by Attorney-General or other person authorised, 291 contempt, 292 disputes between members of, 292 meaning of " charity," 293 cases to which Charitable Trusts Acts do not extend, 293 Roman Catholic charities, 294 jurisdiction of Charity Commissioners, 295 powers given to trustees of, by Trustee Acts, 323 640 INDEX. CHAEITY COMMISSIONERS, order or certificate of, 281—283 CHIEF CLERKS, powers of, 394 examination of witnesses before, 407 CHIEF CLERK'S CERTIFICATE, general provision, 461 general- and separate certificates, 461 how drawn up, 461 draft of, 462 appointment to settle, 462 where can pe acted upon without being signed by judge, 463 summons to take opinion of judge, 463 signature and adoption by judge, 464 filing, 464 office copies, 464 , application to discharge or vary, 465 direction to review, 466 CHIEF CLERK'S SUMMONS. See " Summonses at Chambees." CLAIM. See " Statement ot Claim." CLAIMS, - advertisements for, 420, 421 effect of claimant not coming in within time limited, 421 entry of, 4gl affidavit in support, 421 plaintiff in creditor's suit must prove his debt, 422 hearing and adjudication, 422 adjournment, 422 close of evidence, 422 regulations as to claims of creditors, 422 rule as to administration in Judicature Act, 1876, 423 secured, creditors, 423 attendance of creditors to prove claims, 424 examinatfon of, 424 • judge may allow claims, or require further particulars, 425 office copy affidavit of investigation, 425. where creditor has'received money on account, 425 evidence of claimant alone not sufficient, 425 notice of allowance of, 425 notice tp attend and prove claim, 426 creditors may send in, before day of adjournment, 426 special leave to bring in, 426 marking as allowed, 426 list of, allowed, 426 exclusion of claimants, 426 application to vary certificate, 426 interest, 426 costs, 427 CLASS, where right of, depends upon construction of instrument, 8 CO-DEFENDANT, relief against, 48 INDEX. 641 COMMISSION to examine witnesses abroad, 1 14 to effect partition, 227 And see " Pabtition." COMMITTAL under Debtors Acts 1869 and 1878, 193—195 COMMITTEE of lunatic, 375, 376 COMPANIES,- execution against, 169, 170 COMPANIES ACTS 1867 and 1877, power to reduce capital, 342 addition to name -of company, 342 application for orderjconfirming reduction, 343 application as to settling list of creditors, 344 notice of petition, 344 affidavit verifying list of creditors, 344 copies of list, 344 notice to be sent by company, 344 publication of notice of list of creditors, 345 affidavit by company's solicitor, 345 notice to creditors whose claims are not admitted, 345 costs, 346, 347 certificate of result, 346 placing petition in list, 346 notice of hearing, 347 certain creditors entitled to oppose, 347 Court may give directions as to securing claims, 347 registration of order confirming reduction, 347 Court may require publication of reasons, 348 reduction by cancellation, 348 COMPENSATION in action for specific performance, 249 CONCURRENT "WRITS, issue of, 28 CONDITIONS OF SALE. See " Sale.'! CONDUCT of proceedings, 415 of sale, 437 CONFESSION of defence, 88 CONFIRMATION OF SALES ACT, jurisdiction of Chancery Division under, 365 CONSOLIDATION , of mortgages, 245 of actions, 498, 499 CONTEMPT of order of charity commissioners, 292 CONTRACT, effect of bare denial of, in pleadings, 71 implied, how alleged in pleadings, 72 642 INDEX. CONVEYANCE under Settled Estates Act, 267 after .sale by Court, 444, 445 CONVEYANCING COUNSEL, reference to, 435 COPIES, certified, 106 of depositions taken before examiner, 110 of affidavits for other side, 126, 127 COPYHOLD ACTS, proceedings under, 340, 341 COPYHOLDS, effect of order vesting, or appointing a person to convey, 317 CORPORATION, service of wilt in case of, 33 execution against, 169, 170 delivery of interrogatories in case of, 501 COSTS, indorsement as to, on writ, 22 of interpleader, 45 of prolix pleadings, 72 of improper denial or non-admission, 76 of demurrer, 84, 85 of application for attachment, «191 of appeal, 214 in foreclosure action, 242 in redemption action, 247 of defendant in action to perpetuate testimony, 255, 256 of applications under Settled Estates Act, 279 under Trustee Relief Acts, 302, 303 under Trustee Acts, 324 under Lands Clauses Act, 335 — 337 of proceedings by companies to reduce capital, 346, 347 under Trade Marks Registration Acts, 361 liability of married woman for, 384 where summons abandoned, 403 of parties attending summons unnecessarily, 404 of creditors, 427 of motion, 472 of petition, 479 in case of discontinuance or withdrawal, 481, 482 of receiver, 551 general rule as to, 585 effect of Order LV., 585 decisions as to, 585, 586 when order for, cannot be appealed from, 586 where estate or fund administered by Court, 586 of trustees, agents, &c, 586 in actions within concurrent jurisdiction of County Court 587 of reference, 587 delivery and taxation of, under 6 & 7 Vict. c. 73 613 And see " Sechibity foe Costs "— " Taxation of Costs." INDEX. 643 COUNSEL, attendance by, on writ of inquiry, 85 how many will be heard, 144 attendance of, at Chambers, 404 COUNTER-CLAIM AND SET-OFF, definition of, 77 power of Court and judges as to, 77 effect of, 77, 78 facts in support, 78 nature of, 78, 79 against plaintiff and third person, 79, 80 application that counter-claim be refused, 80 excluded, 80 effect where established, 80 withdrawal of, 481 COUNTY COURTS, • concurrent jurisdiction of, 4 jurisdiction of, in actions for partition, 234 foreclosure, 242 redemption, 247 over charities, 286 under Trustee Relief Acts, 305 as to infants, 455 removal of causes and matters to, 493 from, 494—497 COURT OF APPEAL, order by, for new trial, 148 judges of, 199 resignation of judicial office, 199 request for attendance of additional judges, 200 may sit in two divisions, 201 power of a single judge in, 201 jurisdiction of, 201 And see " Appeal," CREDITORS, claims of, 422—427 secured, 423 And see " Claims." CROSS-APPEAL, notice in lieu of, 210, 211 to House of Lords, 221 CROSS-EXAMINATION, on affidavits, 119 DAMAGES, application to ascertain, like a question in an action, 55 in action for specific performance, 248 DEATH of parties, 11 DEBT, indorsement of, on writ, 22 And see "Claims." DEBTS AND LIABILITIES, jurisdiction of Chancery Division to take account of, under Sir Geo. Turner's Act, 365 T T 2 644 INDEX. DECLARATION, in lieu of oath, 117 DECREE, notice of, 7 DEEDS. See " Settlement of Deeds." DEFENCE. See " Statement op Defence." DEFENCE ACTS, jurisdiction of Chancery Division under, 364 DEFENDANTS. See " Parties." DEMAND, as to issue of writ by solicitor whose name is indorsed, 47 DEMURRER, default in delivering, 58, 59, 98 general rule as to, 82 form of, 83 and defence, combined*83, 84 leave to plead and demur to same matter, 83 cases proper for, 83, 84 delivery of, 84 entry for argument, 84 costs, 84, 85 effect of allowance of, 85 overruling of, 85 where demurrer to defence allowed, 86 to counter-claim, 86 to reply, 87 by witness, 110 DEPOSIT, in case of view by jury, 141 DEPOSITIONS of witnesses before examiner of the Court, 109 — 113 DISCONTINUANCE by plaintiff without leave, 481 costs, 481, 482 leave to discontinue, 481 application for, how made, 481, 482 order by consent, 482 where defence alleges new matter, 482 where action referred, 482 And see " Staying Proceedings." DISCOVERT, rules as to, 503 matters as to which discovery may be resisted, 503 — 505 service of order for, 506 of documents, 507—511 by inspection of documents, 511 — 517 by inspection of property, 517, 518 And see " Interrogatories." DISMISSAL OF ACTION for want of prosecution, 86, 87, 101, 131 And see " Staying Proceedings." INDEX. 645 DISTRICT REGISTRAR, jurisdiction of, in cases of interpleader, 45 direction to, to take accounts, or make inquiries, 396 applications to, 397 ' may refer matters to judge, 397 appeal from order of, 397 DISTRICT REGISTRY, removal of action from, 45, 46 application that action may proceed in, 6S issue of execution from, 168 accounts or inquiries in, 396 transfer from and to, 492 taxation of costs in, 607 DISTRINGAS, nuper vicecomitem, J 78 writ of, 544—547 DIVIDENDS, on fund in Court, 571 DOCUMENTS, notice to produce, 105 certified copies of, 106 production of, deposited in Court, 106 production of, 507 — 511 inspection of, 511 — 517 deposit of, in Court, 514 — 517 ELEGIT, force and effect of, 178 when may be issued, 178 leave to issue, 178 must follow judgment, 178 execution of, 178, 179 whole of lands may be delivered under, 1 79 option of judgment creditor, 179 sale of lands, 179 equitable interests, 180 EMBARRASSING PLEADINGS, meaning of, 93 EQUITABLE MORTGAGEE, remedy of, 240 And see " Fobeclosttbe." EQUITY OF REDEMPTION, nature of, 243 And see " Redemption." ERASURES in affidavits, 125 EVIDENCE on writ of inquiry, 57 documentary, 104 — 108 notice to produce, 105 of intention to give probate in evidence to establish a devise, 105 certified copies, 106 646 INDEX. EVIDENCE— continued. production of record, 106 documents deposited in Court, 106 taken in another cause, 107 proving exhibits at hearing, 107 now far rules of, affected by Judicature Acts, 108 how to be taken, 108 on motion, petition, or summons, 108, 109, 471, 472, 477 examination of witnesses before an examiner of the Court, 109 — 113 examination of witnesses before special examiner, 113 general power of Court or judge to order evidence to be taken, 113, 114 commission to examine witnesses abroad, 114 writ for examination of witnesses in a British Colony, 115 power of Court or judge to-order facts to be proved by affidavit, 117, 118 consent to take, by affidavit, 118 cross-examination of deponents, 119 improper admission of, 146 on appeal, 2i2, 213 on commission to effect partition, 228 in actions to perpetuate testimony, 255, 256 in chambers, 405 in support of administration summons, 412 on motion, 471, 472 on petition, 477 of arbitrator, 535 costs of procuring, 597 EXECUTION on judgment for payment of money, 166 recovery of land, 166 recovery of property, 166 payment of money into Court, 166 requiring a person to do or abstain from an act, 166, 167 orders may be enforced like judgments, 167 when may be issued, 167 judgment must be produced on issuing, 167 prceeipe, 167 date and teste of writ, 168 indorsement of writ, 168 when to be issued from District Registry, 168 by or againBt persons not parties, 168 in case of partners, 168 in case of corporations and companies; 169, 170 fees on issuing, 170 • service of judgment, 171, 172 application for leave to issue, 172, 173 to stay, 173, 174 fieri facias, 174—178 venditioni exponas, 177 elegit, 178—180 against garnishee, 182 writ of possession, 185 delivery, 186 sequestration, 186 — 189 fieri facias de bonis ecclesiastieis, 189, 190 seqnestrari facias de bonis ecclesiasticis, 189, 190 writ of attachment, 190 — 193 committal, 193 — 195, renewal of writs of, 195 amendment of writs of, 196 registration of writs of, 196 discharging and setting aside process of, 197 enforcing judgment in another part of the Kingdom, 197, 198 INDEX. 647 EXECUTORS AND ADMINISTRATORS may have decree for administration, 7 claims by and against, 25 leave given to, to issue execution, 173 may pay money and transfer stock into Court, 299 order for payment or transfer into Court, 304, 305 proceedings by, to obtain opinion of judge, 326 — 328 EXHIBITS, proving, at the hearing, 107 requisites as to, 122 what documents are to be referred to as, 406 FACTS, allegations of, in pleading, 70, 71, 72, 75, 103 in support of counter-claim, 78 denial of, alleged in defence, 82 moving upon admission of, in pleadings, 89 notice of desire to have issues of fact tried before jury, 133 order for trial of different questions of fact, 135 judge may direct, to be tried before jury, 144 right of parties as to questions of fact, 144 FEES ON issue of writ of summons, 27 issue of concurrent writs, 28 renewal of writ, 29 issue of amended writ, 31 registering action as a lis pendens, 32 discharging a lis pendens, 33 entering appearance, 40 issuing notice to person not a party, 49 • entering judgment, 53, 158 issue of writ of inquiry, 55 examining witnesses, 112, 113 swearing affidavits, 125 entering action for trial, 139 entering order on further consideration, 165 issuing execution, 170 setting down appeal, 210 applications under Settled Estates Act, 280 issuing summons at Chambers, 400 drawing up orders at Chambers, 409 taking accounts, 433 order on motion, 473 order on petition, 479 inspection of documents deposited in Court, 515 filing special case, 521 entering special case for argument, 522 references, 529 issuing writ of injunction, 540 mandamus, 543 distringas, 546 taking account of receiver, 557 taxation of costs, 604 FIERI FACIAS, force and effect of, 174 when may be issued, 174 leave to issue, 175 648 INDEX. FIERI FACIAS— continued. must follow judgment, 175 to whom directed, 175 direction to sheriff, 175 poundage, &c, 175 after change of parties, 175 return of, 177 * »second, 177 FIERI FACIAS BE BONIS ECCLESIASTICIS, writ of, 189, 190 FINES AND RECOVERIES Abolition Act, 363 FOLIO, length of, 599 FORECLOSURE, nature of action of, 237 indorsement on writ, 237 may be joined with other causes of action, 237 parties, 237 ■when action for, may be brought, 238 where several mortgagees, 238 where trustee is also mortgagee, 238 purchaser without notice, 238 bankruptcy of mortgagor, 238 application under 7 Geo. 2, c. 28, 238 sale in lieu of, 239, 240, 436 equitable mortgagee, 240 directions on hearing, 240 attendance to receive money, 240, 241 final order for, 241 effect of, on collateral securities, 241 costs, 242 jurisdiction of County Courts, 242 FRAUD, allegation of, in pleadings, 71 FURTHER CONSIDERATION, when hearing on, necessary, 161 setting down action for hearing on, 161 notice, 161, 162 marking action as " short," 162 where matter originated in Chambers, 162 papers for use of Court, 162 brief on, 163 proof of service of notice, 163 service of notice on purchaser, 163 service of notice on person who has obtained a stop order, 163 affidavit of having been served, 163 who may appear, 164 original judgment will not be altered, 164 new facts, 164 further accounts and inquiries, 164 money of married woman, 164 non-appearance or neglect of solicitor, 164 passing and entering order, 164, 165 fees, 165 INDEX. 6 19 GARNISHEE, execution agaitist, 182 payment by, 183 GUARDIAN AD LITEM, of infant, 370—372 of person of unsound mind, 377 — 379 * GUARDIANS, recognizance, 452 marriage of female guardian, 452 no survivorship between, when appointed by Court, 452 necessary to consent, under certain Acts, 452 power of Court over testamentary, 453 removal of, 453 appointment of, to persons of unsound or weak mind not so found, 460 * GUARDIANSHIP, applications as to, 451, 452 HABEAS CORPUS AD TEST. writ of, 116 HEIR, may have decree for administration, 6 where right of, depends on construction of instrument, i HOUSE OF LORDS, appeal to, 216 — 224 HUSBAND AND WIFE, service of notice of judgment on, 17 claims by or against, 25 service of writ in case of, 33 And see " Married Women." IMPROVEMENT OF LAND ACT, 1864, jurisdiction of Chancery Division under, 364 LNCLOSURE ACT, 1845, jurisdiction of Chancery Division under, 364 INDORSEMENT of writ of summons, 21 — 24 INFANTS, service of notice of judgment in case of, 17, 371, 372 service of writ in case of, 33, 370 consent on behalf of, to application under Settled Estates Act, 273 — 276 partition, in case of, 230 where trustee or mortgagee is an infant, 308, 309 Custody Act, 357, 358 how sue, 366 cannot sue for specific performance, 366 who may be next friend, 366 authority to solicitor, 366 where two or more actions for same cause brought in name of, 367 650 INDEX. INFANTS— cmtinued. inquiry as to propriety of action, 36,7 infant co-plaintiff may be made defendant, 368 removal of next friend, 368 substitution of next friend, 368 service of order appointing new next friend, 369 * where action brought without next friend, 369 effect of infant coming of age, 369 how defend, 370 who may not be guardians ad litem,, 370 guardian ad litem to be appointed after appearance, 370 application for appointment of guardian ad litem, 370, 371 appointment of new guardian ad litem, 372 entry of order appointing guardian ad litem, 372 removal of guardian, ad litem, 372 effect of absolute decree against, 372 power of Court to deal with real estates of, 373 showing cause against judgment, 373, 374 matters relating to, assigned to Chancery Division, 451 how constituted wards of Court, 451 applications as to guardianship, 451, 452 maintenance and advancement of, 453 — 455 how guardians should act, 455 conversion of property of, 455 leases of property of, 456 marriage of, 456 settlements by, 458, 459 stay of proceedings where action brought in name of, 484 INJUNCTION, what is an, 537 different kinds of, 537 in what cases granted, 537 power of Court to grant, under Judicature Act 1873, 538 indorsement of writ in action for, 538 application for, h«w made, 538 copies of affidavits, 539 notice of, 539 how writ of, prepared and issued, 539 fees, 540 service of writ of, 540 remedy for breach of, 540 irregularity, 540 interlocutory, superseded by decree, 541 INQUIRIES, may be ordered to be made in District Registry, 396 additional, 420 application for order for, 519 INSPECTION, of documents, 511 — 517 of property, 517, 518 INTEREST, after judgment order or directing account of debts, 42G on legacies, after account directed, 428 on purchase-money, 443 on money on deposit, 568 - INDEX. 651 INTERPLEADER, former practice applies to all actions, 43 Acts, 43, 44 by sheriff, 176, 177 action, 252, 253 INTERROGATORIES, at Chambers, 407 when and by whom may be delivered, 500 costs of unreasonable, 501 in case of a corporation or company, 501 application to set aside or strike out, 501 order for determination of issue or question before, 502 how and when to be answered, 502 cross-examination on affidavits in answer, 502 using answers in evidence, 503 objections to answer 1 , 503 sufficiency of answer, how determined, 505 application for order to answer or answer further, 506 effect of failure to comply with order, 506 And see " Discovery." INVESTMENT of money in Court, 567 — 570 on Real Securities in Ireland Act, 364 IRREGULARITY, ■proceedings to set aside judgment for, 63 in injunction, 540 ISSUES, proceedings where parties to, make default in delivering pleading, 101 order for trial of, before referees, ,134 t where several distinct, 144 where garnishees dispute liability, 182 JOINT STOCK COMPANY, service of writ in case of, 34 delivery of interrogatories in case of, 501 And tee " Companies" and "Companies Acts 1867 and 1877.' JUDGES, additional, 1 qualification of, 1 resignation of, 2 vacancy in judicial office, 2 tenure of office, 2 cannot sit in House of Commons, 2 oaths of, 2 precedence of, 2 powers of a single judge, 2 of Court of Appeal, 199 may not hear appeals from their own judgments, 200 number of, required to hear appeals, 200 power of single judge in appeal cases, 201 jurisdiction of, 391 effect of order of, 392 vacation judges, 405 652 INDEX. JUDGMENT, adding parties by service of notice of, 15 application to add to, 17 in case of non-appearance where writ specially indorsed, 51 where entered, 51 entry in London, 52 entry in district registry, 52 Vhere defendant had option of appearing in London or district registry, 52 date of, 52 fees, 53 where writ not specially indorsed and defendant does not appear, 53 several defendants, 53, 54 certificate of .particulars, 53 interlocutory, 54, 55 certificate to prevent entry of, after inquisition, 57 entry of, after inquisition, 58 entry of, in action to recover land, 60, 61 proceedings to set aside, for want of appearance, 62, 63 irregularity, 63 application to sign, notwithstanding appearance, 64 — 66 setting aside for want of defence, 101 where one party does not appear, 143, 147 direction as to, at trial, 144 application to set aside judgment directed to be entered, 151 passing and entry of, 153 — 158 date of, 158 application to vary, 158 fees on entering, 158 rectifying and adding to, 158, 159 registration of, 159, 160 service of, 171, 172 enforcing in Scotland or Ireland, 197 England an Irish or Scotch judgment, 198 service of notice of, on infant, 371 effect of absolute decree against infant, 372 where infant defendant allowed a day to show cause against, 373, 374 service of notice of, in case of person of unsound mind, 378 by default, against married woman, 384 carrying into Chambers, 415, 416 entry of, under award, 35 JURAT, requisites as to, 124, 125 JURISDICTION of Chancery Division, 4 of Court of Appeal, 201 of judges, 391 JURY, notice of desire to have issues of fact tried before, 133 Chancery actions for trial before, 133, 138 trial without, 133 special, 140 LAND, joinder of other causes of action with action to recover, 25 course where no appearance entered in action to recover, 59, 60 when title must be pleaded in action to recover, 76 INDEX. 653 LANDS CLAUSES CONSOLIDATION ACT, payment into Court, 329 application of money, 329 quality of money paid in, 330 disentailing deed, 330 payment to parties entitled, 330 order for application or investment, 330 affidavit of claimant, 331 petition, 331, 332 charity fund, 331 applications in Chambers, 331 where fund above £20 and under £200, 332 where fund does not exceed £20, 332 sums exceeding £20 where persons not entitled to dispose of lands for their own benefit, 333 where money paid in, in respect of an estate less than the fee, 333 where owner refuges to accept purchase-money, 334 questions of title, 335 costs, 335—337 entry by promoters, 337 where Pay Office closed, 338 Elementary Education Act, 339 Artizans, &c, Dwellings, &c, Act, 339 LEASES of settled estates, 260—264 LEGACIES, inquiries as to, 427, 428 LEGACY DUTY ACT, payment of legacies into Bank, 297 order in case of stock, 297 investments, 298 application for payment or transfer out, 298 payment in under, does not make infant ward of Court, 298 LIEN, of solicitor, 616 LIS PENDENS, registering action as, 31 — 33 operation of administration summons as, 412 LONG VACATION, delivery of pleadings in, 70 LUNATICS, service of writ in case of, 33 partition in case of, 230 consent on behalf of, to application under Settled Estates Act, 273—276 where trustees or mortgagees are, 307, 308 how sue, 375 sanction to sue, 375 where actions brought without committee or^next friend, 375 where plaintiff found lunatic pending the action, 375 service of writ, 376 how defend, 376 new committee, 376 654 INDEX. MAINTENANCE of infants, 453 — 455 MALICE, allegation of, in pleadings, 71 MANDAMUS, writ in nature of, to examine witnesses in a British Colony, 115 under Common Law Procedure Act 1854, 542 under Judicature Act 1873, 542 application for, 542 preparation of writ of, 543 fees, 543 MARRIAGE of parties, 11 of female plaintiff, 13, 381 of female defendant, 384 of female guardian, 452 of ward of Court, 456 of infants, 456 MARRIED WOMEN, dealing with money of, on further consideration, 1 64 consent by, to application under Settled Estates Act, 276, 277 when may sue in their own name, 380 where actions brought without consent of, 380 when husband necessary party to action by, 380, 381 next friend of, 381 application by, for leave to sue alone, 381 marriage of female plaintiff, 381 husband must usually be joined in actions against, 382 service of writ of summons in case of, 383 defence in case of, 383 application by, for leave to defend alone, 383 separate defence by husband, 383 marriage of female defendant, 384 judgment by default against, 384 liability of, for costs, 384 stay of proceedings where action brought in name of, 484 And see " Husband and Wife." MARRIED WOMEN'S PROPERTY ACT, 1870, questions between husband and wife under, 356 assurance for benefit of wife, &c, 356 MERCHANT SHIPPING ACTS, jurisdiction of Chancery Division under, 364 MESNE PROFITS, course where no appearance entered in action for, 60 MINERALS may be excepted on sale of settled estates, 265 MISJOINDER, action not to be defeated by, 5 MORTGAGE DEBENTURE ACTS, jurisdiction of Chancery Division under, 365 INDEX. 655 MORTGAGEE, vesting orders after death of, 311, 312 may pay surplus after sale into Court, 300 stay of proceedings in action by, 486 And see " Fobeclostjre." — " Redemption." MOTION, evidence on, 108, 109, 471, 472 what is a, 467 of course, 467 special, 467 applications to Court to be by, 468 where notice of, necessary, 468 ex 2>arte,^i68 to make absolute previous order nisi, 468 notice of, 468, 469 before whom to be made, 469 where person under disability, 469 service of notice of, 469—471 counsel's fees, 471 hearing of, 471 adjournment of, 471 costs of, 472 order on, 473 fees, 473 MOTION FOE JUDGMENT, application to set down on, where some issues tried, 136 cases in which judgment must be obtained on, 149 where no judgment directed at trial, 150 setting down on, where issues tried, 150 time for setting down on, 150, 151 procedure on, 151,152 power of Court on, 153 MUNICIPAL CORPORATIONS ACTS, ji risdiction of Chancery Division under, 362 NATIONAL DEBT Ad, 1870, jurisdiction of Chancery Division under, 3G3 NE EXEAT ME Giro, writ of, 617 NEW TRIAL. See " Teial." NEXT FRIEND of infant, 366, 368, 369 of person of unsound mind, 377 of married woman, 381 NEXT OF KIN may have decree for administration, 6 where right of, depends on construction of instrument, 8 NON EST INVENTUS, return of, 191 NOT GUILTY BY STATUTE, effect of defence of, 76 656 INDEX. NOTICE of decree or judgment, 7, 15 of writ of summons, -38 allegation- of, in pleadings, 71 of admissions, 103 to admit, 103 to produce, 105, 511 Of filing affidavit, 127 of intention to use affidavits previously filed, 127, 128 of trial, 131, 132 of countermand, 132 of trial by special jury, 140 of setting down for further consideration, 161, 162 of appeal, 204, 218 in lieu of cross-appeal, 210, 211 under Settled Estates Act, 270—272, 277 under Trustee Belief Acts, 301 of motion, 468, 469 that documents are ready for inspection, 511, 512 of injunction, 539 OATH,' how administered, 117 declaration in lieu of, 117 And see " Affidavit." OFFICERS of Chancery Division, 3 of Supreme Court, 3 OFFICIAL REFEREES. See " References to Refebees and Arbitrators." ORDERS on further consideration, 164 may be enforced like judgments, 167 appeal from, 202, 203 made in Chambers, 408, 409 to be acted on by Chancery Paymaster, 562 — 564 ORIGINATING SUMMONS. See " Summonses at Chambers.' PARLIAMENTARY- DEPOSITS ACT, • jurisdiction of Chancery Division under, 362 PARTIES, misjoinder, 5 who may be joined as plaintiffs, 5 numerous parties having same interest, 5, 6, 9 rules as to, in 15 & 16 Vict. c. 86, s. 42 ; 6, 7 who may be joined as defendants, 8, 9 adding, striking out and substituting, 9 — 11 plaintiff cannot be added without consent, 9 who may be added, 10 doubt as to right plaintiff, 10 plaintiff's proceedings where defendant added, 1 ] marriage, death, &c, of, 11 change of interest or liability, 11 — 15 marriage of female plaintiff, 13 bankruptcy of sole plaintiff, 13 some of the defendants, 14 INDEX. '657 PARTIES— coftWTOted. status of new party, .15 change in registered public officer, 15 adding, by service of notice of judgment, 15 — 19 where no legal personal representative of deceased person interested, 19 to. partition action, 225, 226 V) to foreclosure action, 237 to action for redemption, 244, 245 to originating summonses, 399 entitled to attend at Chambers, 417 — 419 PARTITION Act, 1876, dispensing with service under, 1 6 who cannot bring action, for, 225 parties to action for, 225, 226 commission for, 227i- attendance of witnesses on commission, 227, 228 evidence on commission, 228 proceedings before commissioners, 228 allotment, 228, 229 , certificate of allotment, 229 in Chambers, 229 mutual conveyances, 230 in case of infant, 230 lunatic, 230 title-deeds, &c, 231 costs, 231 sale in lieu of, 231—236 jurisdiction of County Courts as to, 234 claim for, unnecessary, 236 PARTNERS, service of writ in case of, 34, 386 application for names of, 68, 385, 483 execution against, 168, 169,- 172 may sue in name of firm, 385 summons for names of, 385, 387 non-compliance with demand or order "to furnish names, 386 may be sued in name of firm, 386 appearance by, 386 PAUPERS, actions by and against, 388 — 390 PAYMENT INTO COURT, where action brought to recover debt or damages, 46, 47 procedure on order for, 564 lodging money to suspense account, 564 , without an order, 565 where order not served, or time expired, 565 PAYMENT OUT OF COURT, to plaintiff or his solicitor, 67 PAY OFFICE IN CHANCERY, orders to be acted on in, 563 U u 658 INDEX. PEBPETUATION OF TESTIMONY,' grounds for action for, 254 5 & 6 Vict. c. 69, 254 affidavit, 255 time for examination of witnesses, 255 neglect of plaintiff to proceed, 255 evidence, how taken, 255 Application by defendant for costs, 255, 256 evidence to be filed, 256 order to use evidence at trial, 256 PEBSONS OP UNSOUND MIND, actions by or against, 377 — 379 And see " Lunatics." PETITION, evidence on, 108, 109, 477 under statute, how entitled, 257 under Settled Estates Act, 269 under Trustees Belief Acts, 302 under Lands Glauses Act, 331, 332 different kinds of, 473 of course, 474, 475 pleading includes, 474 how entitled, 474 to whom presented, 474 petitioner's description, &c., 474 of persons under disability, 474 security for costs, 474 foot-note, 474 special, 475 service of, 475, 476 guardian ad litem, for infant or person of unsound mind, 476 setting down, 476, 477 brief on, 477 where notice not given to all proper persons, 477 default in appearing, 477, 478 restoration of adjourned petition to list, 478 amendment, 478 order on, 479 fees, 479 costs, 479 adjournment of, to Chambers, 479 PETITION OP BIGHT, jurisdiction of Chancery Division under, 365 PLAINTIFFS, See " PabtiEs." PLEADINGS, contents of, 69 when to be printed, 69 how to be marked, 69 delivery of, 70 long vacation, 70 allegations of fact, 70, 71, 103 facts must be pleaded, 70 inconsistent, 70 bare denial of contract. 71 contents of documents, 71 allegations of malice, 71 fraud, 71 notice, 71 implied contracts, 72 INDEX. 659 PLEADINGS— continued. facts presnmed, 72 costs of prolixity, 72 statement of claim, 72 — 74 defence, 74—76 set-ofE and counter-claim, 77 — 81 statement of reply, 81, 82 subsequent to reply, 82 demurrer, 82—87 pleading matters arising pending the action, 87 — 89 > moving on admission of facts in, 89, 90 amending, 91—96 embarrassing, 93 application to strike out, 93 proceedings in default of delivery of a pleading subsequent to defence 101 PROBATE, notice of intention to give probate in evidence to establish a devise, 105 PRODUCTION OF DOCUMENTS, power to Court or judge to order, 507 general rule as to, 510 notice to produce, 511 summons for, 513 PROHIBITION, writ of, 621 PROPERTY LAW AMENDMENT ACT, jurisdiction of Chancery Division under, 363 PROSECUTION, dismissal of action for want of, 86, 87, 101, 131 PURCHASE-MONEY, relief where paid to tenant for life, 326 QUESTIONS OF LAW, staying proceedings pending decision of, 483 RAILWAY COMPANIES ACT, 1867, preparing and filing scheme, 349, 350 proceedings, how entitled, 349 scheme to be printed, 350 copies of scheme, 350 notice of filing scheme, 351 certificate of filing scheme, 351 restraining order, 351 execution after publication of notice, 351 assent to scheme, 351 of creditors, 352 application for confirmation of scheme, 353 notice of petition, 353 appearance by opposing parties, 354 order of confirmation of scheme, 354 enrolment of scheme, 354 notice of confirmation and enrolment, 354, 355 rights of outside creditors, 355 orders, where drawn up, 355 u u 2 680 INDEX. EECEIVEE, who is a, 549 appointment of, under Judicature Act 1873, 549, 550 application for order for, 549 indorsement of writ with claim for, 550 who may be appointed, 550 security, 551 recognizance, 551 order appointing, 552 practice where appointment made in Chambers, 552, 553 receiver named in order to appoint, 553 costs, 654 allowance to, 554 order to deliver possession or to attorn, 554 pay rent to, 554 procedure where party neglects to deliver up possession, 555 disturbance of possession of, 535 solicitor must pay rents to, 555 distress by, 555 power to let, 555 expenditure, 556 for what losses liable, 556 application for directions, 556 must leave accounts on day appointed, 556 how accounts to be made out, 556 copy order of appointment to be left at Chambers, 557 summons to proceed, 557 copies of account, 657 costs, 557 effect of non-attendance, 557 fees on taking account, 557 entry of account, 558 certificate of allowance, 558 application to pay in monies, 558 where receiver does not leave account or pay in balance, 558 — 5G0 discharge of, 560, 561 BECOGNIZANCE, in case of sale by Court, 439 of guardian, 452 of receiver, 651 EECOED, production of original, 106 EEDEMPTION, nature of action for, 243 doctrine of equity, 243 nature of equity of redemption, 243 indorsement of writ in action for, 243 parties to action for, 244, 245 action for, by purchaser, 245 , purchase by second mortgagee, 245 consolidation of mortgages, 245 where several incumbrancers, 245 when action for, must be brought, 245 where more than one mortgagor or mortgagee, 246 directions at hearing, 246 attendance to receive money, 247 final order, 247 costs, 247 jurisdiction of County Courts, 247 INDEX. 661 REFEREES, order for trial of issues before, 134 notice of trial before official, 13S And see " References to Referees and Arbitrators." REFERENCES TO REFEREES AND ARBITRATORS, power to refer questions to official or special referees, 624 question of account, 525 question of fraud, 525 authority of referees, 525 report of referee, 525, 526 trials before referees, 525, 527 order of reference, 528 distribution of business among official referees, 528 summons to proceed before official referee, 529 appointment to proceed before special referee, 529 fees and expenses, 529 filing report, 530 opinion of Court on report, 530 different kinds of references to arbitration, 530 submission may be made a rule of Court, 531 application to make submission a rule of Court, 532 cesser of arbitrator's authority, 532 setting aside award, 532 contempt for not executing award, 532 appointment of arbitrator or umpire by judge, 532 substitution of new arbitrator, 533 appointment of umpire, 533, 534 time for making award, 534 order for delivery of possession of lands, 534 arbitrator may state special case, 535 remitting matters to reconsideration of arbitrator, 535 evidence of arbitrator, 535 stay of proceedings where action brought after agreement to refer, 535 entry of judgment on award, 536 REGISTERED PUBLIC OFFICER, change in, 15 REGISTRATION of writs of execution, 198 REMAINDER, estate in, cannot be delivered under elegit, 179 REMOVAL OF ACTION from District Registry to London, 45, 46 And see " Transfer and Removal." RENEWAL of writs of summons, 28 REPLY. Sea " Statement of Reply." REPRESENTATIVE CAPACITY, indorsement as to, on writ, 22 denial of right to claim in, 76 RESERVED BIDDING. See " Sale." RESIDUARY DEVISEE may have decree for administration, 6 662 INDEX. EESIDUAEY LEGATEE may have decree for administration, 6 RESTRAINING ORDERS under 5 Vict. c. 5, 543, 544 ROADS, laying out of, &c, under Settled Estates Act, 265, 266 SALE of lands delivered under elegit, 179 in lieu of partition, 231 — 236 foreclosure, 239, 240, 436 of settled estates, 265 sales of realty, assigned to Chancery Division, 436 Court may direct, 436 incumbrances, 436 under 27 & 28 Vict., c. 112, 437 to be with approbation of judge, 437 conduct of, 437 particulars, 437 abstract of title, 438, 442 conditions of, 438, 439 reserved bidding, 439 recognizance, 439 prints of conditions to be left at Chambers, 440 leave to bid, 440 directions to auctioneer, 441 affidavit by auctioneer, 441 certificate of result, 442 putting unsold property up again, 442 status of purchaser before certificate binding, 442 requisitions, 442, 443 order to pay in purchase money, 442, 443 where title certified bad, 443 interest, 443 possession, 443 separate purchasers, 443 title should be accepted before money paid, 444 effect of taking possession without authority, 444 compensation for errors, 444 conveyance, 444, 445 order for delivery of possession, 445 order to pay purchase money should be lodged at Pay Office, 445 authority for purchaser to concur in distribution of purchase money, 446 arrangement with incumbrancers, 446 resale, 446 substitution of purchaser, 447 opening biddings, 447 by private contract, 447 SATISFACTION of lis pendens, 32, 33 acceptance of sum paid into Court in, 67 SCANDAL, meaning of, 92 instances of, 93 in affidavits, 128 INDEX. 663 SCHEDULES to affidavits, 122 SECURITIES, deposit of, in Court, 567 investment on, 569 SECURITY FOR COSTS, on appeal, 207, 208, 219 where petitioner out of jurisdiction, 474 stay of proceedings until order for, complied with, 485 in what cases, 588 where plaintiff or counterclaiming defendant resident abroad, 588 in actions of tort, 589 where limited company is plaintiff, 589 amount and form of, 589, 590 application for ordej for, 590 already incurred, 590 application to Court of Appeal for, 590 manner in which given, 591 where defendant dissatisfied with bond or obligor, 592 failure to comply with order for, 592 SEQUESTRAR1 FACIAS BE BONIS ECCLESIASTICIS, writ of, 189, 190 SEQUESTRATION, nature of, 186 cases in which writ may be issued, 187 effect of, ^87 preparation of writ, 187 powers of sequestrators, 187 real estate, 187, 188 pension, 188 returns of sequestrators, 188 examination pro inter esse sua, 188 dissolution of, 189 SERVICE of writ, indorsement as to, 24 And see " Motion."—" Petition."—" Summonses at Chambebs." — " Wbit op Summons." SET-OFF. See " Counter-claim and Set-off." SETTING ASIDE. See " Appeabance."— " Judoment." SETTLED ESTATES, meaning of, 258 SETTLED ESTATES ACT, 1877, Court may exercise' powers of, repeatedly, 258 ' authorise no act which settlor could not, 259 acts of Court not to be invalidated, 2.39 creates no obligation, 259 entails created by statute, 259 application of, 259 . , application not to be granted where similar application rejected by Parliament, 259, 260 leases under, 260—264 long terms, 261 special covenants, 261 - orders not to contain conditions that leases be setled by Court or judge, 261 664 INDEX. SETTLED ESTATES ACT, 1877— continued. order to give directions as to contents of leases, 262 whole or any part may be leased, 262 surrender and renewal, 262 preliminary contract, 262 copyholds, 262 mode in which leases may be authorised 262 evidence, 263 directions as to lessor, 263 powers of leasing may be vested in trustees, 263 unrepealed statutory powers of leasing, 263 leases by tenants for life, &c, 263, 264 evidence of execution of counterpart, 264 application of Act as to leasee, 264 Court may authorise sales, 265 fee farm rent, 265 minerals may be excepted, 265 laying out roads, &c, 265, 266 conveyance, 266 application of monies, 267, 268 payment out of Court to tenant in tail, 267 protection of settled estate, 268, 269 petition under, 269 applicants, 269 description of property, 270 address for service, 270 infant tenant in tail, 270 notice to non-consenting persons, 270, 271 dispensing with notice, 271 consent, 272 notice of application, 272 consent, how obtained, 273 petition need not be served, 273 inspection of petition, 273, 278 provision as to infants, lunatics, &c, 273, 276 married women, 276, 277 public notice of application, 277 appointment for hearing, 278 indorsement of notice of order, 279 costs, 279 meaning of making application, 279 power to judge to dispense with orders, 280 contents of order, 280 forms, 280 existing procedure, 280 fees, 280 SETTLEMENT OF DEEDS, course of procedure, 433 reference to conveyancing counsel, 434 appointment to settle draft, 435 where deed ordered to be settled by judge if parties differ 435 affidavit, 435 memorandum in margin, 436 SETTLEMENTS, meaning of, 258 by infants, 458, 359 SHORT ACTIONS, how marked for hearing, 139 INDEX. 665 SITTINGS, intervals between, 405 SOLICITOUS, admission. of, COS striking off the roll, 609 re-admission of, 610 taking out and renewing certificate, 611 change of, 612 delivery and taxation of bills of costs under 6 & 7 Vict. c. 73, 613 enforcing lien of, 610 SPECIAL CASE, when may be stated, 520 how prepared, 520 Court or judge may direct, 520 what questions may be raised, 521 printing and filing, 521 fees, 521, 522 amendment, 521 where persons under disability are parties, 521 entry for argument, 522 brief, 522 effect of order on argument, 522 before whom to be argued, 522 under 13 & 14 Vict. c. 35, 522 may be stated by arbitrator, 535 SPECIAL JUEY on writ of inquiry, 56 And see " Jtjby." SPECIFIC PERFOKMANCE, ground of jurisdiction as to, 248 action for, must be brought in Chancery Division, 248 valuable consideration necessary, 248 decree for performance of part of an agreement, 248 damages, 248 inquiry as to title, 249 compensation, 249 application under Vendor and Purchaser Act 1874, 249 refusal to comply with judgment, 250 Trustee Act 1850, 250 jurisdiction of County Courts as to, 251 infant cannot sue for, 366 inquiry as to title in actions for, 428, 429 STAMP DUTIES under Trustee Acts, 324 STATEMENT OF CLAIM, when to be delivered, 73 delivery when not required, 73 relief claimed must be specified, 73 amendment and delivery where defendant rdded, 73 extension of time for delivery, 73 where writ specially indorsed, 73, 74 place of trial to be named in, 74 default in delivery of, 98 withdrawal of, 481 666 INDEX. STATEMENT OF DEFENCE, default in delivering, 58, 59, 98 when to be delivered, 74 voluntary, 75 where leave to defend given under Order XIV., 75 extension of time, 75 facts must be alleged, 75 denial of allegations of fact, 75 denial of right of party to claim in representative capacity, 7(3 costs of improper denial or non-admission, 76 action to recover land, 76 plea in abatement, 76 not guilty by statute, 76 withdrawal of, 481 STATEMENT OF REPLY, when to be delivered, 81 by party to counter-claim, 81 extension of time, 81 new assignment, 81 new matter, 81 denial of facts alleged in defence, 82 pleadings subsequent to, 82 STAYING PEOCEEDINGS, on administration summons, 413 after order made on administration summons, 414 where demand as to issue of writ not complied with, 4S3 where demand as to names of partners not complied with, 4S3 pending decision of questions of law, 483 where action or actions brought on behalf of infaut, 484 where action brought on behalf of married woman, 484 where plaintiff has not paid costs of former action, 484 where plaintiff ordered to give security or do any act, 484 in frivolous, &c, actions, 485 where defendant offers to comply with demand, 485 where debt, &c., paid within 4 days after service of writ, 485 in action by landlord to recover possession, 485 where covenant to insure broken, 485 in action by mortgagee to recover possession, 480 by consent, 486 after judgment in another action, or where several actions brought, 487 where parties agree to refer, 487, 535 by order nisi for new trial, 487 effect of appeal as to, 487 where plaintiff's title gone, 487 where originating summons filed without authority, 487, 488 application, how made, 488 And see " Discontinuance."—" Dismissal of Action." STOP ORDERS, to prevent dealings with funds in Court, 547, 548 BUBPCENA duces tecum, 104 for attendance of witness before examiner, 111 ad test., 116 « SUBSTITUTED SERVICE of writ of summons, 35, 38 INDEX. 067 SUMMONS, how evidence taken on, 108, 109 SUMMONSES AT CHAMBERS, classes of, 398 contents of, 398 by whom prepared, 398 alterations, 398 issue of originating, 399 parties, 399 entry of originating, 399 fees on, 400 when must be served, 400 where originating summons not duly served, 400 where ordinary summons not duly served, 401 mode of service, 401 substituted service*402 service of Chief Clerk's summons, 402 amending originating, 402 appearance to, 403 return of, 403 costs where abandoned, 403 failure of parties to attend, 403 costs of parties attending unnecessarily, 404 Judge may direct representation by separate solicitors, 404 attending by counsel, 404 Chief Clerk's summons, 407 SUMMONS TO ADMINISTER ESTATE. See ■' Administration Summons." SUMMONS, ORIGINATING. See " Summonses at Chambers." SUMMONS TO PROCEED, issue and service of, 41G directions on return of, 417 TAXATION OF COSTS, of appeal to House of Lords, 224 general rule, 593 as between party and party, 593 solicitor and client, 593 counsel, 593, 599 skilled witnesses, 594 solicitor's clerk, 594 drawings, 594 shorthand notes, 594 lower scale, 594 higher scale, 596 power of Court or Judge to allow either scale, 596 special documents, 597 instructions to sue or defend, 597 affidavits, 597 evidence, 597 agency correspondence, 598 attendance at Chambers, 598 inspection of documents, 599 copies of documents, 599 length of folio, 599 tender of costs on serving petition, 599 unnecessary proceedings, 600 set-off of counter-costs, 600 note of disallowance in Chambers, 601 unnecessary appearance at Chambers, 601 668 INDEX. TAXATION OF COSTS— continued. applications for extension of time, 601 work not provided for, 601 discretion of taxing officer, 601 powers of taxing officer, 602 parties to attend, 602 refusal or neglect to bring in bill or tax costs, 602 references to be to masters in rotation, 602 procedure to procure, 602 warrant on leaving bill, 603 to tax, 603 copies of bill for other parties, 603 taxation, 604 signature of bill by Master, 005 certificate of, 605 fees on, 605 where costs directed to be paid ou; of money in Court, 605 in case parties differ, 606 objection to allowance or disallowance of taxing officer, 606 reconsideration of taxation, 606 application to Judge to review, 600 in district registry, 607 TESTIMONY. See " Perpetuation of Testimony." THIRD PARTIES, order to determine questions as against, 47 notice to person not a party, 48 appearance by third party, 49 leave to defend, 50 TIME, rules as to, 623 TITLE, when, must be pleaded in action to recover land, 76 inquiry as to, 249, 428, 429 TRADE MARKS Registration Acts, 360, 361 TRANSFER AND REMOVAL, where cause or matter assigned to wrong Division, 4S9 from one Division to another, or from one Judge to another of the Chancery Division, 489, 490 consent of Lord Chancellor, 491 of Chancery actions for trial only, 491 of winding-up and administration matters, 491 from district registry to London, and vice versa, 492 from High Court of Justice to County Courts, 493, 494 from inferior Court to High Court of Justice, 494—497 TRANSFER INTO COURT without an order, 565 where order not served or time expired, 565 what securities may be directly transferred into Court, 666 procedure on order for, 566 TRIAL, order for separate trials, 24 place for, to be named in statement of claim, 74 LNDEX. 669 TEIAL — continued. notice of, 131 modes of, 132 notice of desire to have issues of fact tried before a jurr, 133 Chancery actions for trial by jury, 133 where trial without a jury may be directed, 133 order for, of questions or issues before referees, 134 matters of mere account, 135 application to vary mode of, 135 order for, of different questions of fact, 135 order for separate trials of different causes of action, 13S place of, 136, 137 entry of action for, 137—140 special jury, 140 view by jury, 141 advancing and postponing, 142 before a single Judge, 143 where either party does not appear at, 143 procedure at, 143 number of counsel, 144 Judge may direct facts to be tried before jury, 144 postponement and adjournment, 144 right of parties as to questions of fact, 1 44 direction as to judgments at, 144 where several distinct issues, 144 entry of findings, 144 associate's certificate, 145 assessors, 145 new trial, 145 — 148 before referee, 525, 526 TRUSTEE ACTS, 1850 and 1852, meaning of " trust " and " trustee," 306 " lunatic," 306 " contingent right," 307 . provisions where trustee or mortgagee lunatic, 307, 308 new trustees, 308 " Lord Chancellor," 308 when application must be made in lunacy, 308 estate tail, 308 provisions where trustee or mortgagee is an infant, 308, 309 where trustees out of jurisdiction, 309, 313 where survivor of several trustees uncertain, 310 where not known if trustees living, 310 where trustee died intestate without heir, or heir or devisee unknown, 310 contingent right in unborn person, 311 where trustee refuses or neglects to convey, 311 vesting orders after death of mortgagee, 311, 312 reconveyance by personal representative, 312 order appointing a person to convey or transfer, 312, 313 vesting right to transfer stock, &c, in case of infant trustees, 314 where trustees neglect or refuse to transfer stock, 314, 315 where stock stands in name of deceased person whose personal repre- sentative is out of the jurisdiction, 315 where stock stands in name of deceased person whose personal repre- sentative refuses to transfer, 316 effect of order vesting right to stock, 316 legal right to sue for choses in action, 317 or appointing person to convey copyholds, 317 decree for sale of realty to pay debts, 317, 318 Court may make vesting order in lieu of conveyance, 318 670 INDEX. TRUSTEE ACTS, 1850 AND 1852— continued. applications by summons, 318 Court may declare who are trustees of lands, 318 directions as to exercise of rights to stock, 319 Court may appoint new trustees, 319 right of new trustees, 319 Court may vest lands, &c, in new trustees, 319, 320 former trustees not discharged from liability, 320 new trustees must consent, 320 affidavit of fitness, 320 where trustee felon or bankrupt, 321 who may apply under, 321 applications, how made, 321 power of Court on hearing, 321 power to make an order under, in a cause, 321, 322 orders founded on certain allegations, 322 Bank and companies are to comply with orders, 322, 323 indemnity to Bank or companies, 323 trustees of charities, 323 money of infants or persons of unsound mind to be paid into Court. 323 costs, 324 stamp duties, 324 commission of lunacy, 325 action may be directed, 325 TRUSTEES may have decree for administration, 7 in bankruptcy, claims by, 25 may pay money and transfer stock into Court, 299 order for payment or transfer into Court by, 304, 305 proceedings by, to obtain opinion of judge, 326 — 328 entitled to conduct of sale of realty, 415 costs of, 586 And see " Trustee Acts, 1850 and 1852." VACANT POSSESSION, service of writ in case of, 35 VACATION JUDGES, rule as to, 405 mode of sitting, 405 reversal of orders of, 405 VENDITIONI EXPONAS, writ of, 177 VENDOR AND PURCHASER ACT, 1874, applications under, 249, 359 VESTING ORDERS, under Charitable Trusts Acts, 288, 289 And see " Tbustee Acts, 1850 and 1852." VICE-CHANCELLORS, provision for deficiency in, 1 VIEW by jury, 141 INDEX. 67 1 WART) OF COURT, how infant cons'.ituted, 451 marriage of, 456, 457 And see " Infants." WITNESSES, examination of, before examiner of Court, 109 — 113 special examiner, 113 commission to examine, abroad, 114 writ to examine, in British colony, 115 compelling attendance of, 115, 116 where in prison, 116 declaration in lieu of oath, 117 examination of, tie iene esse, 129, 130 before Chief Clerk, 407 And see " Evidence.'' WITHDRAWAL of action, 139 of appeal, 210 of statement of claim, 481 defence or counter-claim, 4S1 of record, 482 And see "Discontinuance." — "Staying Proceedings. " WRIT OF DELIVERY, in what cases may be issued, 185 WRIT OF INQUIRY, preparation of, 55 fees on issuing, 55 date and teste, 55 when to be left with sheriff, 56 return of, 56 indorsement as to address, 56 to whom directed, 56 notice of executing writ, 56 attendance by counsel, 56 special jury, 56 proof required, 57 evidence, 57 inquisition, 57 certificate to prevent entry of judgment, 57 application to set aside inquisition, 57 ■ entry of judgment after, 58 WRIT OF POSSESSION, in what cases may be issued, 185 WRIT OF SUMMONS, all actions to be commenced by, 21 by whom, and how prepared, 21 name of judge, 21 date and teste, 21 indorsement of nature of claim, 21, 22 as to representative capacity, 22 of amount of debt and costs, 22 of address of plaintiff, 22 for service, 22 as to agency, 22 where plaintiff sues in person, 22 where issued out of district registry, 23 672 INDEX. WRIT OF SUMMONS— continued. special indorsement, 23 indorsement of claim for account, 24 service, 25 issue of, 26—28 fees on issue, 27 copy for filing, 27 . for service out of jurisdiction, 27 concurrent writs, 28 renewal of, 28, 29 amendment of, 29 — 31 service of, 33 — 38 in case of husband and wife, 33, 382 infant, 33, 370 persons of unsound mind, 33, 37 service of, in case of partners, 34, 386 a corporation, 34 inhabitants, 34 a joint-stock company, 34 on solicitor, 35 substituted service, 35 service out of jurisdiction, 36 — 38 in case of lunatic, 376 demand as to issue of, 483 THE END. EBADBCRT A(;NEW, & CO., PRIKTERS, WHITEFRURS. March, 1880. .A. OATALOGUB OP LAW WORKS, PUBLISHED BY STEVENS AND SONS, 119, CHANCERY LANE, LONDON, W.C. {Formerly of Bell Yard, Lincoln's Inn). Law Books Purchased or Valued. 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BANKING.— Walker's Treatise on Banking Law. In- cluding the Crossed Checks Act, 1876, with dissertations thereon, also references to some American Cases, and full Index. By J. DOUGLAS WALKER, Esq., Barrister-at-Law. Demy 8vo. 1877. 14s. "The work has been carefully written, and will supply the want of a compact sum- mary of Banking Law."— Solicitors' Journal. "Persons who are interested in banking law may be guided out of many a difficulty by consulting Mr. Walker's volume."— Law Times. BANKRUPTCY.— Bedford's Final Examination Guide to Bankruptcy.— Third Edition. 12mo. 1877. 6s. Havnes. — Vide " Leading Cases." Lvneh's Tabular Analysis of Proceedings in Bankruptcy, for the use of Students for the Incorporated Law Society's Examinations. Second Edition. 8vo. 1874. Net, is. Scott's Costs in Bankruptcy.— Vide "Costs." Smith's Manual of Bankruptcy.— A Manual relating to Bankruptcy, Insolvency, and Imprisonment for Debt ; comprising the New Statute Law verbatim, in a consolidated and readable form. With the Rules, a Copious Index, and a Supplement of Decisions. Bv JOSIAH W. SMITH, B.C.L., Q.C. 12mo. 1873. 10s. * * The Supplement may be had separately, net, 2s. bd. Williams' Law and Practice in Bankruptcy: WILLIAMS, of Lincoln's Inn, Esq., and WALTER VAU(xHAN V AU standard Lav, Worlo are kept in Stock, m law calf and otlw Urging*. STEVENS AND SONS' LAW PUBLICATIONS. BAR,GUIDETOTHE.— Shearwood.— Vide "Examination Guides." BILLS OF EXCHANGE— Chalmers' Digest of the Law of Bills of Exchange, Promissory Notes, and Cheques. By M. D. CHALMERS, of the Inner Temple, Esq. Barrister-at-Law. Demy 8vo. 1878. 12«. 6d. • 4 * This work is in the form of the Indian Codes, besides the English Cases it is noted up with reference to the French Law and the German Code, and on doubtful points to the more recent American Decisions ; it also contains a table of overruled or doubted cases. " Mr. Chalmers has done wisely in casting his book into its present form, and the plan, thus well conceived, has been most effectually carried out. As a handy book of reference on a difficult and important branch of the law, it is most valuable, and it is perfectly plaiu that no pains have been spared to render it complete in every respect. The index is copious and well arranged." — Saturday Review. " The book is not only well planned, but well executed for the rising genera- tions and for men of business this digest will be a gift of no small value." — Pall Mai Gazette. Chitty on Bills of Exchange and Promissory Notes, with references to the law of Scotland, France and America. — Eleventh Edition. By JOHN A. RUSSELL, Esq., LL.B., one of Her Majesty's Counsel, and Judge of County Courts. Demy 8vo. 1878. * 11. 8s. Eddis' Rule of Ex parte "Waring. By A C. EDDIS, B.A.,of Lincoln's Inn,Barrister-at-Law. Post8vo. 1876. Net, 2s. 6d. BILLS OF SALE. — Cavanagh.— Vide "Money Securities." Millar's Bills of Sale.— A Treatise on Bills of Sale, with an Appendix containing the Acts for the Registration of Bills of Sale Precedents, &c. (being the Fourth Edition of Millar and Collier's Treatise on Bills of Sale). By F. C. J. MILLAR, of the Inner Temple, Esq., Barrister-at-Law. 12mo. 1877. 12* " The original work is brought down to date, and the latest cases are referred to and considered. The value of the work is enhanced throughout by careful annotation." ■—Law Magazine. BOOK-KEEPING.— Bedford's Intermediate Examina- tion Guide to Book-keeping. — Second Edition. 12mo. 1875. Net, 2s. U. CANAL TRAFFIC ACT.— Lely's Railway and Canal Traf- fic Act, 1873. — And other Railway and Canal Statutes ; with the General Orders, Forms, and Table of Fees. Post 8vo. 1873. 8«. CARRIERS. — Browne on Carriers. — A Treatise on the Law of Carriers of Goods and Passengers by Land and Water. With References to the most recent American Decisions. By J. H. BALFOUR BROWNE, of the Middle Temple, Esq., Barrister-at- Law, Registrar to the Railway Commission. 8vo. 1873. 18s. CHANCERY, and Vide " EQUITY.'' Daniell's Chancery Practice. — Sixth Edition, by LEONARD FIELD and EDWARD CLENNELL DUNN, Barristers-at-Law; assisted by W. H. UPJOHN, Student and Holt Scholar cf Gray's Inn, &c, &c, Editor of " Daniell's Forms, Third Edition." 2 vols. 8vo. (In pi-eparation.) Daniell's Forms and Precedents of Proceed- ings in the Chancery Division of the High Court of Justice and on Appeal therefrom; with Dissertations and Notes, forming a complete guide to the prac- tice of the Chancery Division of the High Court and of the Courts of Appeal. Being the Third Edition of "Daniell's Chancery Forms." By WILLIAM HENRY UPJOHN, Esq., Student and Holt bcholar of Gray's Inn, Exhibitioner in Jurisprudence and Roman *»* All standard law Works are kept in StocJc, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.O. 5 CHANCERY.-**"**™*. Law in the University of London, Holder of the First Senior Stu- dentship in Jurisprudence, Roman Law and International Law awarded by the Council of Legal Education in Hilary Term, 1879. In one thick vol. Demy 8vo. 1879. 21. 2s. " Mr. Upjohn has restored the volume of Chancery Forms to~the place it held before the recent changes, as a trustworthy and complete collection of precedents. It has i i c° ld merits ; nothing is omitted as too trivial or commonplace ; the solicitor's clerk finds how to indorse a brief, and how, when necessary, to give notice of action ; and the index to the forms is full and perspicuous."— Solicitors' Journal. "It will be as useful a wtrk to practitioners at Westminster as it will be to those in Lincoln's Inn." — Law Timet. Haynes' Chancery Practice— The Practice of .the Chancery Division of, the High Court of Justice and on Appeal therefrom, for the use of Practitioners and. Students. — By JOHN F. HAYNES, LL.D. Author of the " Student's Leading Cases," &c. Demy8vo. 1879. 11. 5s. *' Materials for enabling the practitioner himself to obtain the information he may require are placed before Mm in a convenient and accessible foim. The arrangement of the work appears t j be good." — Law Magazine and Review, February, 1880. Morgan's Chancery Acts and Orders.— The Statutes, General Orders, and Rules of Court relating to the Practice, Pleading, and Jurisdiction of the Supreme Court of Judicature, particularly with reference to the Chancery Division, and the Actions assigned thereto. With copious Notes. Fifth Edition. Carefully revised and adapted to the new Practice by GEORGE OSBORNE MORGAN, M.P., one of Her Majesty's Counsel, and CHALONER W. CHUTE, of Lincoln's Inn, Barrister- at-Law, and late Fellow of Magdalen College, Oxford. Demy 8vo. 1876. 11. 10s. " This edition of Mr. Morgan's treatise must, we believe, be the most popular with the profession." — Law Times. Morgan and Davey's Chancery Costs. — Fide "Costs." Peel's Chancery Actions. — A Concise Treatise on the Practice and procedure in Chancery Actions.— By SYDNEY PEEL, of the Middle Temple, Esq., Barrister-at-Law. Demy 8vo. 1878. 7s. 6d. " To Chancery practitioners of both branches the volume will doubtless prove very useful." — Law Times. CHANCERY PALATINE OF LANCASTER — Snow and Win- stanley's Chancery Practice.— The Statutes, Consoli- dated and General Orders and Rules of Court relating to the Practice, Pleading and Jurisdiction of the Court of Chancery, of the County Palatine of Lancaster. With Copious Notes of all practice cases to the end of the year 1879, Time Table and Tables of Costs and Forms. By THOMAS SNOW. M.A., and HERBERT WINSTANLEY, Esqrs., Barristers-at-Law. Royal 8vo. 1880. {Nearly ready.) CIVIL LAW — Bowyer's Commentaries on the Modern Civil Law.— By Sir GEORGE BOWYER, D.C.L., Royal 8™. 1848. , ^ ^ TT 18 '- Bowyer's Introduction to the Study and Use of the Civil Law.— By Sir GEORGE BOWYER, D.C.L. Royal 8vo. 1874. , _ , J'- Cumin's Manual of Civil Law, containing a lranslation of, and Commentary on, the Fragments of the XII. Tables, and the Institutes of Justinian ; the Text of the Institutes of Gaius and Justinian arranged in parallel columns ; and the Text of the Frag- ments of Ulpian, &e. By P. CUMIN, M.A., Barrister-at-Law. Second Edition. Medium Svo. 1865. ,.,.-. ,. ,. * ♦ All standard Law Worksarekeptin Stock,inlaw calf and otter landings. 6 STEVENS AND SONS' LAW PUBLICATIONS. CIVIL LAW.— Continued. Voet Commentarius ad Pandeetas, Translated into English. — Part I. The Contract of Sale. (Book xviii.) By SIR ROLAND KNYVET WILSON, Bart., of Lincoln's Inn, Barrister-at-Law. Royal 8vo. 1876. Net 11. Is. COLLISIONS. — Lowndes' Admiralty Law of Collisions at Sea.— 8vo. 1867. 7s. 6d. Marsden on Maritime Collision. — A Treatise on the Law relating to Collisions between Ships, Compulsory Pilotage, and the Rule of the Road at Sea. With a Summary of English and American Decisions thereon, references to Foreign Law, and an Appendix containing the International Regulations (of 1863 and 1880) for preventing Collisions at Sea ; the Thames, Mersey, and other local Rules of Navigation ; and Extracts from the Merchant Shipping Acts. By REGINALD G. MARSDEN, Esq., Barrister-at-Law. (In the press.) COLONIAL LAW.— Clark's Colonial Law.— A Summary of Colonial Law and Practice of Appeals from the Plantations. 8vo. 1834. 11. is. COMMENTARIES ON THE LAWS OF ENGLAND Bedford.— Vide "Examination Guides." Broom and Hadley's Commentaries on the Laws of England.— By HERBERT BROOM, LL.D., of the Inner Temple, Barrister-at-Law ; and EDWARD A. HAD- LEY, M.A., of Lincoln's Inn, Barrister-at-Law ; late Fellow of Trinity Coll., Cambridge. 4 vols, 8vo. 1869. SI. 3s. " Messrs. Broom and Hadley have been unsparing in their editorial labours. There are abundant reference notes, so that tbe diligent student can consult the authorities if he is so disposed. Nothing that could be done to make the work useful and handy has been left undone. " — Law Journal. Dickson's Analysis of Blackstone's Commen- taries.— In Charts for the use of Students. By FREDERICK S. DICKSON. 4to. 10s. 6d. COMMERCIAL LAW.— Levi.— Vide "International Law.'' COMMON LAW.— Archbold's Practice of the Queen's Bench, Common Pleas and Exchequer Divi- sions of the High Court of Justice in Actions, etc., in which they have a common jurisdic- tion.— Thirteenth Edition. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. 2 vols. Demy 8vo. 1879. SI. 3s. Archibald. — Vide "Judges' Chambers Practice." Chitty. — Vide "Forms." Foulkes. — Vide " Action." Fisher. — Vide " Digests." Prentice. — Vide "Action." Smith's Manual of Common Law.— For Practitioners and Students. A Manual of Common Law, comprising the funda- mental principles and the points most usually occurring in daily life and practice. By JOSIAH W. SMITH, B.C.L., Q.C. Eighth Edition. 12mo. 1878. 14s. COMMONS AND INCLOSURES.— Chambers' Digest of the Law relating to Commons and Open Spaces, including Public Parks and Recreation Grounds, with various official documents ; precedents of by-laws and regulations. The Statutes in full and brief notes of leading cases. By GEORGE F. CHAM- BERS, of the Inner Temple, Esq., Barrister-at-Law. Imperial 8vo. 1877. 6s. 6d. Cooke on Inelosures.— With Forms as settled by the Inclosure Commissioners. By G. WINGROVE COOKE, Esq. Barrister-at-Law. Fourth Edition. 12mo. 1864. 16s. %* AU standard Law Works are kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. COMPANY LAW.— Finlason's Report of the Case of Twyeross v. Grant. 8vo. 1877. Net, 2s. 6d. Palmer. — Vide "Conveyancing." Palmer's Shareholders' and Directors' Com- panion. — A Manual of every-day Law and Practice for Pro- moters, Shareholders, Directors, Secretaries, Creditors and Solicitors of Companies, under the Companies' Acts, 1862, 1867, and 1877. Second Edition, By FRANCIS B. PALMER, Esq., Barrister-at- Law, Author of "Company Precedents." 12mo. 1880. Net, 2s. 6d. Thring.— Vide " Joint Stocks." CONTINGENT REMAINDERS.— An Epitome of Fearne on Contingent Remainders and Executory De- vises. Intended for the Use of Students. By W. M. C. Post . 8vo. 1878. 6s. 6d. "An acquaintance with Fearne is indispensable to a student who desires to be thoroughly grounded in the common law relating to real property. Suca student will find a perusal of this epitome of great value to him." — Law Journal. CONSTITUTIONAL LAW.— Bowyer's Commentaries on the C ons titutional La"w of England. — By Sir GEO. BOWYER, D.C.L. Second Edition. Eoyal 8vo. 1846. 11. 2s. Haynes.— FicZe " Leading Cases." CONTRACTS. — Addison on Contracts. — Being a Treatise on the Law of Contracts. By C. G. ADDISON, Esq., Author of the "Law of Torts." Seventh Edition. By L. W. CAVE, Esq., one of Her Majesty's Counsel, Recorder of Lincoln. Royal 8vo. 1875. U18s. "At present this is by far the best book upon the Law of Contract possessed by the Profession, and it is a thoroughly practical book." — Law Times. Leake on Contracts. — An Elementary Digest of the Law of Contracts (being a new edition of " The Elements of the Law of Contracts"). By STEPHEN MARTIN LEAKE, Barrister-at- Law. 1 vol. Demy 8vo. 1878. 11. 18s. Pollock's Principles of Contract at Law and in Equity ; being a Treatise on the General Principles relating to the Validity of Agreements, with a special view to the comparison of Law and Equity, and with references to the Indian Contract Act, and occasionally to American and Foreign Law. Second Edition. By FREDERICK POLLOCK, of Lincoln's Inn, Esq.. Barrister-at- Law. Demy8vo. 1878. 1Z. 6s. The Lord chief Justice in his judgment in Metropolitan Railway Company v. Brog- den and others, said, "The law is well put by Mr. Frederick Pollock in his very able and learned work on Contracts."— The Times. " Jfor the purposes of the student there is no book equal to Mr. Pollock's."— The E °^Bs has succeeded in writing a book on Contracts which the working lawyer will find as useful for reference as any of its predecessors, and which at the same tjme will give the siudent what he will seek for in vain elsewhere, a complete rationale of the law. — ^ wtSnolSg rq^fyinthe praise we bestowed on the first edition The chapters on unlawful and impossible agreements are models of full and clear treatment. — Solution Journal. Smith's Law of Contracts.— By the late J. W. SMITH, Esq Author of "Leading Cases," &c. Seventh Edition. By VINCENT T. THOMPSON, Esq., Barrister-at-Law. Demy 8vo. 1878 ^' * s " " We know of few books equally likely to benefit the student, or marked by such dis- ttoguTshe?quaUt!eroriucidity, order, and accuracy as the work before «*."-«<**«■*' Journal, December 28, 1878. * * All standard Law Works are Tceptin StocTc, im law calf and other Undings. 8 STEVENS AND SONS' LAW PUBLICATIONS. CONVICTIONS.— Paley's Law and Practice of Sum- mary Convictions under the Summary Juris- diction Acts, 1848 and 1879; including Proceedings preliminary and subsequent to Convictions* and the responsibility of convicting Magistrates and their Officers, with Forms. Sixth Edition. By W. H. MACNAMAKA, Esq., Barrister-at-Law. Demy 8vo. 1879. 11. is. Stone.— Vide " Petty Sessions." Templer. — Vide " Summary Convictions." Wigram.— Vide " Justice of the Peace." CONVEY ANCINO.-Dart Vide " Vendors and Purchasers." Greenwood's Manual of Conveyancing. — A Manual of the Practice of Conveyancing, showing the present Practice relating to the daily routine of Conveyancing in Solicitors' Offices. To which are added Concise Common Forms and Precedents in Conveyancing ; Conditions of Sale, Conveyances, and all other Assurances in constant use. Fifth Edition. By H. N. CAPEL, B.A., LL.B., Solicitor. Demy 8vo. 1877. 15s. "A careful study of these pages would probably arm a diligent clerk with as much useful knowledge as he might otherwise take years of desultory questioning and observing to acquire." — Solicitor? Journal. The young solicitor will find this work almost invaluable, while the members of the higher branch of the profession may refer to it with advantage. We have not met with any book that furnishes so simple a guide to the management of business entrusted to articled clerks." Hayries. — Vide " Leading Cases.'' Martin's Student's Conveyancer. — A Manual on the Principles of Modern Conveyancing, illustrated and enforced by a Collection of Precedents, accompanied by detailed Remarks. Part I. Purchase Deeds. By THOMAS FREDERIC MARTIN, Solicitor. Demy 8vo. 1877. 5s. 6d. " It should be placed in the hands of every student." Palmer's Company Precedents. — Conveyancing and other Forms and Precedents relating to Companies' incorporated under the Companies' Acts, 1862 and 1867. Arranged as follows : — Agreements, Memoranda of Association, Articles of Association, Resolutions, Notices, Certificates, Provisional Orders of Board of Trade, Debentures, Reconstruction, Amalgamation, Petitions, Orders. With Copious Notes. By FRANCIS BEAUFORT PALMER, of the Inner Temple, Esq ., Barrister-at-Law. Demy 8vo. 1877. It 5s. " There had never, to our knowledge, been any attempt to collect and edit a body of Forms and Precedents exclusively relating to the formation, working and winding-up of companies. This task Mr. Palmer has taken in hand, and we are glad to say with much success .... The information contained in the 65't pages of the volume is rendered easily accessible by a good and full index. The author has evidently not been sparing of labour, and the fruits of his exertions are now before the legal profession in a work of great practical utility." — Law Magazine. " To those concerned in getting up companies, the assistance given by Mr. Palmer must be very valuable, because he does not confine himself to bare precedents, but by intelligent and learned commentary lights up, as it were, each step that he takes. The volume beforeus is ict, therefore a book of precedents merely, but, in a greater or less degree, a treatise on certain portions of the Companies' Acts of 1862 and 1867. There is an elaborate index, ami the work is one which must commend itself to the profession." — Law Timts. "The precedents are as a rule exceedingly well drafted, and adapted to companies for almost every conceivable object. 8o especially are the forms of memoranda and articles oi association; and these will be found extremely serviceable to the conveyancer. . . . All the notes have been elaborated with a thoroughly scientific knowledge of the principles of company law, as well as with copious references to the cases substantiating the principles. . . . We venture to predict that his notes will be found of great utility iu guiding opinions on many complicated questions of law and practice. " -Lau> Journal. %* All standard Law Works are kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. CONVEY ANCING.-a»"»w«ri. Prideaux's Precedents in. Conveyancing. — With Dissertations on its Law and Practice. Ninth Edition. By FREDERICK PRIDEAUX, late Professor of the Law of Real and Personal Property to the Inns of Court, and JOHN WHITCOMBE, Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1879. 31. 10s. " We have been always accustomed to view 'Prideaux' as the most useful work out on conveyancing. It combines conciseness and clearness in its precedents with, aptness and comprehensiveness in its dissertations and notes, to a degree superior to that of any other work of its kind." — Law Journal, February 8, 1379. "Prideaux has become ao indispensable part of the Conveyancer's library. The new edition has been edited with a care and accuracy of which we can hardly epealc too highly The care and completeness v. ith which the dissertation has been revised leaves us hardly any room lor criticism." — Solicitors' Journal. "The volumes are now something more than a mere collection of precedents; they contain most valuable dissertations on the law and practice with reference to conveyancing These dissertations are followed by the precedents on each subject dealt with, and are in themselves condensed treatises,embodyiug all the latest case and statute law . . .'Having regard to the wide general knowledge required of all lawyers in the present day, such a work as this must prove highly acceptable to the whole Profession." — Law Times. COPYRIGHT.-Phillips' Law of Copyright.— The Law of Copyright in Works of Literature and Art, and in the Appli- cation of Designs. With the Statutes relating thereto. By CHARLES PALMER PHILLIPS, of Lincoln's Inn, Esq., Barrister-at-Law. 8vo. 1863. 12s. CORONERS. — Jervis on the Office and Duties of Coroners. — With Forms and Precedents. Fourth Edition, (In preparation.) COSTS. — Morgan and Davey's Treatise on Costs in Chancery.— By GEORGE OSBORNE MORGAN, M.P., one of Her Majesty's Counsel, late Stowell Fellow of University College, Oxford, and Eldon Scholar ; and HORACE DAVEY, M.A., one of Her Majesty's Counsel, late Fellow of University College, Oxford, and Eldon Scholar. With an Appendix, containing Forms and Precedents of Bills of Costs. 8vo. 1865. 11. Is. Scott's Costs in the High Court of Justice and other Courts. Fourth Edition. By JOHN SCOTT, of the Inner Temple, Esq., Barrister-at-Law, Reporter of the Com- mon Pleas Division. Demy 8vo. 1880. 11. 6s. "Mr. Scott's introductory notes are very useful, and the work is now a compendium on the law and practice regarding costs, as well as a book of precedents."— Law Times, January 3, 1880 „ , j T ■ • j *. ■ Scott's Costs in Bankruptcy and Liquidation under the Bankruptcy Act, 1869. Royal 12mo. 1873. ne ^ ^ s ' Summerhays and Toogood's Precedents of Bills of Costs in the Chancery, Queen's Bench, Common Pleas, Exchequer, Probate and Divorce Divisions of the High Court of Justice in Conveyancing, Bankruptcy, the Crown Office, Lunacy, Arbitration under the Lands Clauses Consolidation Act, the Mayor's Court, London; the County Courts, the Privy Council, and on Passing Residuary and Succession Accounts ; with Scales of Allow- ances and Court Fees, the Law Society's Scale of Commission in Pnnvpvancino; • Forms of Affidavits of Increase, and Objections to Taxation. By Wm. FRANK SUMMERHAYS, Solicitor, and THORNTON TOOGOOD. Third Edition, Enlarged. Royal 8vo. 1879 " In the volume before ns we have a very complete manual of taxation. The work is beautifully printed and arranged, and each item catches the eye mstantly.-'-.z™ *°*™ \ standard Law Works are kept in Stock, in law calf and other bindings. * 3 a 10 STEVENS AND SONS' LAW PUBLICATIONS. COSTS.— Continued. Webster's Parliamentary Costs. — Private Bills Election Petitions, Appeals, House of Lords. By EDWARD WEBSTEB, Esq., of the Taxing and Examiners' Office. Third Edition. Post 8vo. 1867. 20s. COUNTY COURTS.— The Consolidated County Court Orders and Rules, 187S, with Forms and Scales of Costs and Fees, as issued by the Lord Chancellor and Committee of County Court Judges. Authorised Edition. Super-royal 8vo. 1875. Net, 3s. Pitt-Lewis' County Court Practice.— A Complete Practice of the County Courts, including Admiralty and Bankruptcy, embodying the Act, Rules, Eonns and Costs, with Table of Cases and Eull Index. By G. PITT-LEWIS, of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, sometime Holder of the Studentships of the Eour Inns of Court, ' assisted by H. A. DE COLYAR, of the Middle Temple, Esq., Barrister-at-Law, Author of " A Treatise on the Law of Guaran- tees." (In the press.) CRIMINAL LAW,— Arehbold's Pleading and Evidence in Criminal Cases. — With the Statutes, Precedents of Indictments, &c, and the Evidence necessary to support them. By JOHN JEKVIS, Esq. (late Lord Chief Justice of Her Majesty's Court of Common Pleas). Nineteenth Edition, including the Practice in Criminal Proceedings by Indictment. By WILLIAM BRUCE, of the Middle Temple, Esq., Barrister-at-Law, and Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 1878. 11. lis. 6d. Cole on Criminal Informations and Quo War- ranto.— By W.R.COLE, Esq., Barrister-at-Law. 12mo. 1843. 12s. Greaves' Criminal Law Consolidation and Amendment Acts of the 24 & 2S Viet— With Notes, Observations, and Eonns for Summary Proceedings. By CHARLES SPRENGEL GREAVES, Esq., one of Her Majesty's Counsel, who prepared the Bills and attended the Select Committees of both Houses of Parliament to which the Bills were referred. Second Edition. Post 8vo. 1862. 16s. Haynes. — Vide " Leading Cases." Roscoe's Digest of the Law of Evidence in Criminal Cases.— Ninth Edition. By HORACE SMITH, Esq., Barrister-at-Law. Royal 12mo. 1878. 11. lls.6d. Russell's Treatise on Crimes and Misdemea- nors— Eifth Edition. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. 3 vols. Royal 8vo. 1877. 5?. 15». 6rf. This treatise is bo much more copious than any other upon all the subjects contained in it, that it affords by far the best means of acquiring a knowledge of the Criminal Law in general, or of any offence in particular ; so that it will be found peculiarly useful as well to those who wish to obtain a complete knowledge of that law, as to those who desire to be informed on any portion of it as occasion may requite. "What better Digest of Criminal Law eould we possibly hope for than 'Russell on Crimes ? * " — Sir James Fitzjames Stephen's Speech on Codification, " No mole trustworthy authority, or more exhaustive expositor than 'Russell' can he consulled." — Law Magazine and Review. "Alterations have been made in the arrangement of the work which without intorferio" with the genera! plan are sufficient to show that great care and thought have been bestowed We are amazed at the patience, industry and skill which arc exhibited in U Students, but Practitioners. The Notes are drar, pointed and concise. 1 ' — Law limes. " We think that this book will supply a want .... the b ofe is singularly well arranged for reference." — Law Journal. * The statements of the various cases are fairly full and clear, and many of the notes are good."— Law Magazine. Shirley's Leading Cases in Common Law made Easy. By W. SHIRLEY SHIRLEY, M.A., Esq., Barrister-at- Law, North-Eastern Circuit. (In the press.) LEXICON.— Vide "Dictionary." LIBRARIES AND MUSEUMS.— Chambers' Public Libraries and Museums and Literary and Scientific Institutions generally, a Digest of the Law- relating to. Second Edition. By G. F. CHAMBERS, of the Inner Temple, Barrister-at-Law. Imperial 8 vo. 1879. Ss. 6d. LICENSING. — Lely and Foulkes' Licensing Acts, 1828, 1869, 1872, and 1874; Containing the Law of the Sale of Liquors by Retail and the Management of Licensed Houses ; with Notes to the Acts, a Summary of the Law, and an Appendix of Forms. Second Edition. By J. M. LELY and W. D. I. EOULKES, Esqrs., Barristers-at-Law. Royal 12mo. 1874. 8s. " Messrs. Lely and Foulkes* plan is to print in tall the principal Acts, and to inter- pjl.lts between the sections of each of these statutes all subsidiary enactments, distin- guishing them by brackets and marginal ni.tcs These notes are usually sensible and to the point and give evidence both of care and knowledge of the subject." — Solicitors' Journal. LIENS Cavanagh.— Vide "Money Securities." LIFE ASSURANCE.— Scratchley s Decisions in Life As- surance Law, collated alphabetically according to the point involved ; with the Statutes. Revised Edition. By ARTHUR SCRATCHLEY, M.A.. Barrister-at-Law. Demy 8vo. 1878. 5*. LIGHTS.— Woolryeh's Practical Treatise on the Law of Window Lights.^-Second Edition. 12mo. 1864. 6s. LOCKE KING'S ACTS.— Cavanagh.— Fide "Money Securities." LORD MAYOR'S COURT PRACTICE.-Candy.- Vide "Mayor's Court Practice." ... „,.,.. LUNACY.— Elmer's Practice in Lunacy.— The Practice in Lunacy under Commissions and Inquisitions, with Notes of Cases and Recent Decisions, the Statutes ai.d General Orders, Forms and Costs of Proceedings in Lunacy, an Index and Schedule of Cases. Sixth Edition. By JOSEPH ELMER, of the Office of the Masters in Lunacy. 8vo. 1877. 21s. MAGISTERIAL LAW.— Burn.— Vide " Justice of the 1 eace. Leeming and Cross.— Fide " Quarter Sessions." Pritchard. — Vide " Quarter Sessions." Stone.— Vide " Petty Sessions." Wigram.- Vide " Justice of the Peace. * * All standard Law Works are k<%t in Stock, in law calf and other Utidings, 22 STEVENS AND SONS' LAW PUBLICATIONS. MANDAMUS. — Tapping on Mandamus. — The Law and Practice of the High Prerogative Writ of Mandamus as it obtains both in England and Ireland. Royal 8vo. 1848. Net, 11. Is. MARITIME COLLISION.— Lowndes.-Marsden.-Fa "Col- lision." MAYOR'S COURT PRACTICE.— Candy's Mayor's Court Practice. — The Jurisdiction, Process,Practice, and Mode of Plead- ing in Ordinary Actions in the Mayor's Court, London (commonly called the "Lord Mayor's Court"). Founded on Brandon! By GEORGE CANDY, Esq., Barrister-at-Law. Demy 8vo. 1879. " lis. "The * ordinary ' practice of the Court is dealt with in its natural order, and is simply and clearly stated." — Law Journal. MERCANTILE LAW.— Boyd.— Fide "Shipping." Russell. — Tide "Agency." Smith's Compendium of Mercantile Law. — Ninth Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., one of Her Majesty's Counsel. Royal 8vo. 1877. 1?. 18s. " We can safely Bay that, to the practising Solicitor, few books will be found more useful than the ninth edition of ' Smith's Mercantile Law.'" — Law Magazine. Tudor's Selection of Leading Cases on Mercan- tile and Maritime La w.— With Notes. By 0. D. TUDOR, Esq., Barrister*at-Law. Second Edition. Royal 8vo. 1868. K. 18*. METROPOLIS BUILDING ACTS.-Woolryeh's Metropolis Building Acts, with Notes, Explanatory of the Sections and of the Architectural Terms contained therein. Second Edition. By NOEL H. PATERSON, M.A., Esq., Barrister-at-Law. 12mo. 1877. 8*. 6d. MINES.— Rogers' Law relating to Mines, Minerals, and Quarries in Great Britain and Ireland; with a Summary of the Laws of Foreign States and Practical Directions for obtaining Government Grants to work Foreign Mines.- Second Edition Enlarged. By ARUNDEL ROGERS, Esq., Judge of County Courts. 8vo. 1876. 11. lis. 6d. " The volume will prove invaluable as a work of legal reference.''— Th& Mining Journal. MONEY SECURITIES.— Cavanagh's Law of Money Secu- rities. — In Three Books. I. Personal Securities. II. Securities on Property. III. Miscellaneous; with an Appendix containing the Crossed Cheques Act, 1876, The Factors Acts, 1823 to 1877, Locke King's, and its Amending Acts, and the Bills of Sale Act, 1878. By CHRISTOPHER CAVANAGH,B.A.,LL.B. (Lond.), of the Middle Temple, Esq., Barrister-at-Law. In 1 vol. Demy 8vo. 1879. 21*. "We know of uo work which embraces bo much that is of every-day importance, nor do we know of any author who shows more faniliaiity with bis subject. The book is one which wo shall certainly keep near at hatd, and we believe that it will prove a decided acquisition to the practitioner."— Law Times. "The author has the gift of a pleasant style ; there are abundant and correct references to decisions of a recent date ; and, in the matter of newly-enacted statutes ; attempts are made, and, as we think, not without success, to grapple with points of practice and interpretation which as yet remain judicially unsolved. An appendix, in which is embodied the full text of several important statutes, adds to the utility of the work as a book of reference ; and there is a good index." — Solicitors' Journal. "In the second book bills of sale extend over some sixty- three pages ; and the treatise on them seems on the whole well written, especially with reference to the alterations made by 41 & 42 Vict. c. 31." — Law Journal. " May be the means of saving enormous labour to thousands of readers." — Bullioniit. MORTGAGE. — Coote's Treatise on the Law of Mort- gage.— Third Edition. Royal 8vo. 1850. Net, 11. MORTMAIN.— Rawlinson's Notes on the Mortmain Acts ; shewing their operation on Gifts, Devises and Bequests for Charitable Uses. By JAMES RAWLINSON, Solicitor. Demy 8vo. 1877. Interleaved. Net, 2s. 6d, * # * All standard Law Works are kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 23 NAVY. — Thring's Criminal Law of the Navy, with an Introductory Chapter on the Early State and Discipline of the Navy, the Rules of Evidence, and an Appendix comprising the Naval Discipline Act and Practical Forms. Second Edition. By THEODORE THRING, of the Middle Temple, Barrister-at-Law, late Commissioner of Bankruptcy at Liverpool, and C.E. GIFFORD, Assistant- Paymaster, Royal Navy. 12mo. 1877. 12s. 6d. " A fall series of forms of warrants, minates, charges, Ac. , and a good Index, complete the utility of a work which should be in the hands of ail who have to deal with the regu- lating and governing of the Fleet." — Late Magazine. " In the new edition, the procedure, naval regulations, forms, aud all matters con- nected with the practical administration of the law have been classified aud arranged by Mr. Gifford, so that the work is in every way useful, complete, and up to date." — Naval and Military Qazette. NISI PRIUS.— Roseoe's Digest of the Law of Evidence on the Trial of Actions at Nisi Prius.— Fourteenth Edition. By JOHN DAY, one of Her Majesty's Counsel, and MAURICE POWELL, Barrister-at-Law. Royall2mo. 1879. 2Z. (Bound in one thick volume calf or circuit, 5s., or in two convenient vols, calf or circuit, 9s. net, extra.) "The task of adapting the old text to the new procedure was one requiring much patient labour, careful accuracy, and conciseness, as well as discretion in the omission of matter obsolete or unnecessary. An examination of the bulky volume before us affords good evidence of the possession of these qualities by the present editors, aud we feel sure that the popularity of the work will continue unabated under their conscientious care." — • Law Magazine. Selwyn's Abridgment of the Law of Nisi Prius.— Thirteenth Edition. By DAVID KEANE, Q.C., Recorder of Bedford, and CHARLES T. SMITH, M. A., one of the Judges of the Supreme Court of the Cape of Good Hope. 2 vols. Royal 8vo. 1869. (Published at 21. 16s.) Net, 11. tiOTMOk.— Vide "Digests." NOTARY.— Brooke's Treatise on the Office and Prac- tice of a Notary of England. — With a full collection of Precedents. Fourth Edition. By LEONE LEVI, Esq., P.S.A., of Lincoln's Inn, Barrister-at-Law. 8vo. 1876. 11. 4s. NUISANCES.— FitzGerald.— Vide "Public Health." OATHS.— Braithwaite's Oaths in the Supreme Court of Judicature. — A Manual for the use of Commissioners to Administer Oaths in the Supreme Court of Judicature in England. Part I. containing practical information respecting their Appoint- ment, Designation, Jurisdiction, and Powers ; Part II. comprising a collection of officially recognised Forms of Jurats and Oaths, with Explanatory Observations. By T. W. BRAITHWAITE, of the Record and Writ Clerks' Office. Fcap. 8vo. 1876. 4s. 6d. " Specially useful to Commissioners."— Law Magazine. " The work will, we doubt hot, become the recognised guide of commissioners to administer oaths."— Solicitors' Journal. PARTITION.-Foster.— rtde" Real Estate. PARTNERSHIP.— Pollock's Digest of the Law of Part- nership. By FREDERICK POLLOCK, of Lincoln's Inn, Esq Barrister-at-Law. Author of " Principles of Contract at Law and in Equity." Demy 8vo. 1877. Js.Sd. * * The object of this work is to give the substance of the .Law of Partnership (excluding Companies) in a concise and definite form, "Of the execution of the work, we can speak in terms of the highest praise. The language is simple, concise, and clear; and the general propositions may bear comparison Vi ^°Vot^Z^V^^^^^ , V .«" book is praiseworthy ^^nWo^wS^^ nerhaps reniove some drawbacks, and render English law a pleasanter and easier subject tostndy'thanitisatpresent."— The Examiner. . ... ♦ * In, standard Law Works are kept m Stock, in law calf and other bmdmgs. 24 STEVENS AND SONS' LAW PUBLICATIONS. PATENTS.— Hiiidmareh's.Treatise on the Law rela- ting to Patents— 8vo. 1846. 11. Is, Johnson's Patentees' Manual; being a Treatise on the Law and Practice of Letters Patent, especially intended for the use of Patentees and Inventors.— By JAMES JOHNSON, Barrister-at-Law. and J. H. JOHNSON, Solicitor and Patent Agent. Fourth Edition. Thoroughly revised and much enlarged. Demy 8vo. 1879. 10s. 6d. " A very excellent manual."— Lav Times, February S. 1879. *' Tlie authors have uot enly n knowledge of the law, but of the workirjg of the law. Be- sides the table of cases there is a copious index to subjects.,' — Low Journal, Marchl, 1879. Thompson's Handbook of Patent Law of all Countries.— ThirdEdition, revised. By WM. P. THOMPSON, C.E., Head of the International Patent Office, Liverpool. 12mo. 1878. Net 2s. 6d. PERSONAL PROPERTY.— Smith.— Tide "Real Property." PETITIONS Palmer. — Vide " Conveyancing." PETTY SESSIONS.— Stone's Practice for Justices of the Peace, Justices' Clerks and Solicitors at Petty and, Special Sessions, in Summary Matters and Indictable Offences, with a List of Summary Convictions and of Matters not Criminal. With Forms. Eighth Edition. By THOMAS SIRRELL PRLTCHABD, of the Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock. In 1 vol. Demy 8vo. 1877. 11 10s. 11 The book, as a whple, is thorougbJy satisfactory, and, having gone carefully through it , we can recomnxend it with confidence to the numerous body of our readers who are daily interested in the subjects to which it relates."— Solicitors' Journal. POOR LAW. — Davis' Treatise on the Poor Laws. — Being Vol. IV. of Burns' Justice of the Peace. 8vo. 1869. 11. lis. 6d. POWERS. — Farwell on Powers. — A Concise Treatise on Powers. By GEORGE FARWELL, B.A., of Lincoln's Inn, Esq., Barrister-at-Law. 8vo. 1874. 11. Is. " We recommend Mr. FarwelTs book as containing within a small compass what would otherwise have to be sought out in the pages of hundreds of confusing reports." — The Lav. PRECEDENTS. — Tide " Conveyancing." PRINCIPAL AND AGENT.— Petgrave's Principal and Agent. — A Manual of the Law of Principal and Agent. ' By E. C. PETGRAVE, Solicitor.. 12mo. ,1857. 7s. 6d. Petgrave's Code of the Law of Principal and Agent, with a Preface. By E. C. PETGRAVE, Solicitor. Demy 12nio. 1876. Net, sewed, 2s. PRIVY COUNCIL. — Finlason's History, Constitution, and Character of the Judicial Committee of the Privy Council, considered as a Judicial Tribunal, especially in Ecclesiastical Cases, with special reference to the right and duty of its members to declare their opinions. By W. F. FINLASON, Barrister-at-Law. Demy 8vo. 1878. 4s. 6d. Lattey's Handy Book on the Practice and Pro- cedure before the Privy Council.— By ROBERT THOMAS LATTEY, Attorney of the Court of Queen's Bench, and of the High Court of Bengal. 12mo. 1869. 6s. PROBATE. — Browne's Probate Practice : a Treatise on the Principles and Practice of the Court of Probate, in Contentious and Non-Contentious Business, with the Statutes, Rules, Fees, aid Forms relating thereto. By GEORGE BROWNE, Esq., Barrister- at-Law, Recorder of Ludlow. 8vo. 1873. 11. Is. " A cursory glance through Mr. Browne's work shows that it has been compiled with mote than ordinary care and intelligence. We should consult it with every confidence." — Law Times. Haynes. — Vide "Leading Cases." .%* AU standard Law Worteare kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 25 PUBLIC HEALTH.— Chambers' Digest of the Law re- lating to Public Health and Local Govern- ment.— "With Notes of 1073 leading Cases. Various official documents ; precedents of By-laws and Regulations. The Statutes in full. A Table of Offences and Punishments, and a Copious Index. Seventh Edition, enlarged and revised, with Supplement containing new Local Government Board By-Laws in full. Imperial 8vo. 1S75-7. ll 8s. *** The Supplement may be had separately, price 9s. FitzGerald's Public Health and Rivers Pol- lution Prevention Acts.— The Law relating to Public Health and Local Government, as contained in the Public Health Act, 1875, with Introduction and Notes, showing all the alterations in theExistingLaw,withreferenceto the Cases, &c; together with a Sup- plement containing 1 " The Rivers Pollution Prevention Act, 1876." With Explanatory Introduction, Notes, Cases, and Index. By G. A. R. FITZGERALD, Esq., Barrister-at-Law. Royal 8vo. 1876. 11. Is. "A copious and well-executed analytical index completes the work which we can confidently recommend to the officers and members of sanitary authorities, and all interested in the subject matter of the new Act.'' — Law Magazine and Review. " Mr. FitzGerald comes forward with a special qualification for the task, for he was employed by the Government in the preparation of the Act of 1875; and, as he himself says, has necessarily, for some time past, devoted attention to the law relating to public health and local government." — Late Journal. PUBLIC MEETINGS — Chambers' Handbook for Public Meetings, including Hints as to the Summoning and Manage- ment of them ; and as to the Duties of Chairmen, Clerks, Secretaries, and other Officials ; Rules of Debate, &c, to which is added a Digest of Reported Cases. By GEORGE E. CHAMBERS, Esq., Bar- rister-at-Law. ' 12mo. 1878. Net, 2s. 8d. QUARTER SESSIONS. — Leeming & Cross's General and Quarter Sessions of the Peace. — Their Jurisdiction and Practice in other than Criminal matters. Second Edition. By HORATIO LLOYD, Esq., Recorder of Chester, Judge of County Courts, and Deputy-Chairman of Quarter Sessions, and H. E. THURLOW, of the Inner Temple, Esq., Barrister-at-Law. 8vo. 1876. 11. Is. " The present editors appear to have taken the utmost pains to make the volume com- plete, and, from our examination of it, we can thoroughly recommend it to all interested in the practice of quarter sessions." — Law Timet Pritchard's Quarter Sessions. — The Jurisdiction, Prac- tice and Procedure of the Quarter Sessions in Criminal, Civil, and Appellate Matters. By THOS. SIRRELL PRITCHARD, of the Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock. *8vo. 1875. 2Z. 2s. "We can confidently say that it is written throughout with clearness and intelligence, and that both in legislation and in case law it is carefully brought down to the most recent date."— Solicitors' Journal. RAILWAYS.— Browne and Theobald's Law of Rail- ways. By J. H. BALFOUR BROWNE, of the Middle Temple, Registrar of the Railway Commissioners, and H. S. THEOBALD, of the Inner Temple, Esqrs., Barristers-at-Law. (In preparation.) Lely's Railway and Canal Traffic Act, 1873.— And other Railway and Canal Statutes ; with the General Orders, Forms, and Table of Fees. By J. M. LELY, Esq. Post 8 vp. 1873. 8s. * * All standard Law Works are kept in Stock, in law calf and other binding 26 STEVENS AND SONS' LAW PUBLICATIONS. RATES AND RATING.— Castle's Practical Treatise on the Lav/ of Rating. By EDWARD JAMES CASTLE, of the Inner Temple, Barrister-at-Law. Demy 8vo. 1879. 11. Is. " Mr. Castle's book is a correct, exhaustive, clear and concise view of the law." — Law Times. "Th.e book is a useful assistant in a perplexed blanch of Law."— Law Journal. Chamber's Law relating to Rates and Rating ; with especial reference to the Powers and Duties of Rate-levying Local Authorities, and their Officers. Being the Statutes in full and brief Notes of 550 Cases. By G. E. CHAMBERS, Esq., Barrister-at-Law. Imp. 8vo. 1878. 12s. REAL ESTATE.— Foster's Law of Joint Ownership and Partition of Real Estate. By EDWARD JOHN FOSTER, M.A., late of Lincoln's Inn, Barrister-at-Law. 8vo. 1878. 10s. 6d. "Mr. Foster may be congratulated on having produced a very satisfactory vade mecum on the Law of Joint Ownership and Partition. He has taken considerable pains to make his treatise practically useful, and has combined within the fifteen chapters into which the book is divided, brevity of statement with completeness of treatment." — Law Magazine. REAL PROPERTY.— Green-wood's Recent Real Pro- perty Statutes. Comprising those passed during the years 1874-1877 inclusive. Consolidated with the Earlier Statutes thereby Amended. With Copious Notes, and a Supplement containing the Orders under the Settled Estates Act, 1878. -By HARRY GREENWOOD, M.A., Esq., Barrister-at-Law. 8vo. 1878. iOa. " To students particularly this collection, with the careful notes and references to previous legislation, will be of considerable value." — Law Times. "The author has added notes which, especially on the Vendor and Purchaser Act, and the Settled Estates Act, are likely to be useful to the practitioner . . . so far as we have tested them, the statements appear to be generally accurate and careful, and the work will be found exceedingly handy for reference."- Solicitors' Journal. " Mr. Greenwood's book gives such of the provisions of the amended statutes as are etill in force, as well as the provisions of the new statutes, in order to show more clearly the effect of the recent legislation."— Law Journal. Leake's Elementary Digest of the Law of Pro- perty in Land. — Containing : Introduction. Part I. The Sources of the Law.— Part II." Estates in Land. By STEPHEN MARTIN LEAKE, Barrister-at-Law. 8vo. 1874. 12. 2s. *,* The above forms a complete- Introduction to the Study of the Law of Real Property. Shearwood's Real Property. — A Concise Abridgment of the Law of Real Property and an Introduction to Conveyancing. Designed to facilitate the subject for Students preparing for Examination. By JOSEPH A. SHEARWOOD, of Lincoln's Inn, Esq., Barrister-at-Law. Demy 8vo. 1878. 6s. 6d. " The present law is expounded paragraphically, eo that it could be actually learned without understanding the origin from which it has sprung, or the principles on which it is based."— Law Journal. Shelford's Real Property Statutes.— Eighth Edition. By T. H. CARSON, Esq., Barrister-at-Law. 8vo. 1874. 11. 10s. Smith's Real and Personal Property. — A Com- pendium of the Law of Real and Personal Property, primarily connected with Conveyancing. Designed as a second book for Students, and as a digest of the most useful learning for Practi- tioners. By JOSIAH W.SMITH, B.C.L., Q.C. Fifth Edition. 2 vols. Demy 8vo. 1877. 21. 2s. " He has given to the student a book which he may read over and over again with profit and pleasure.''— Law Times. " The work before us 'will, we think, be found of very great service to the practitioner." — Solicitors' Journal. * t *AU standard Law Works are kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 27 REGISTRATION.— Brown e's(G.L,athom)Parliamentary and. Municipal Registration Act, 1878 (41 & 42 Vict. cap. 26) ; with an Introduction, Notes, and Additional Forms. By G. L ATHOM BROWNE, of the Middle Temple, Esq., Barrister-at-Law. 12mo. 1878. 5s. 6d. REGISTRATION CASES.— Hopwood and Coltman's Registration Cases.— Vol. I. (1868-1872). Net,2l.l8s. Calf. Vol. II. (1873-1878). Net, 2Z. 10s. Calf. RIVERS POLLUTION PREVENTION.— FitzGerald's Rivers Pollution Prevention Act, 187S.— With Explanatory Introduction, Notes, Cases, and Index. Royal 8vo. 1876. 3s. 6d. ROMAN LAW.— Cumin.— Fide "Civil." Greene's Outlines of Roman Law. — Consisting chiefly- of an Analysis and Summary of the Institutes. For the use of. Students. By T. WHITCOMBE GREENE, B.C.L., of Lincoln's Inn, Barrister-at-Law. Third Edition. Foolscap 8vo. 1875. 7s. 6d. Mears' Student's Ortolan.— An Analysis of M. Ortolan's Institutes of Justinian, including the History and Generalization of Roman Law. By T. LAMBERT MEARS, M.A, LL.D. Lond., of the Inn er Temple, Barrister-at-Law. Published by permission of the lateM, Ortolan. Post 8vo. 1876. 12s. 6d. Ruegg. — Vide "Justinian." SAUNDERS' REPORTS.— Williams' (Sir E. V.) Notes to Saunders' Reports. — By the late Serjeant WILLIAMS. Continued to the present time by the Right Hon. Sir EDWARD VAUGHAN WILLIAMS. 2 vols. Royal 8vo. 1871. 21. 10s. SETTLED ESTATES.— Middleton's Settled Estates Act, 1877, and the Settled Estates Act Orders, 1878, with Introduction, Notes and Forms, and Summary of Practice. Second Edition. By JAMES W. MIDDLETON, B.A., of Lincoln's Inn, Barrister-at-Law. 12mo. 1879. 4s. Gd. " A complete work as a practical edition of the Settled Estates Act, 1877, and will be found exceedingly useful to legal practitioners." — Law Journal. " The book is a well-timed and useful manual of the Act."— Solicitor? Journal. " The book is excellently arranged, particularly in the summary of practice." — Saturday SHERIFF LAW Churchill's Law of the Office and Duties of the Sheriff, with the Writs and Forms relating to the Office. By CAMERON CHURCHILL, B.A., of the Inner Temple, Barrister-at-Law, assisted by A. CARMICHAEL BRUCE, 'B.A., of Lincoln's Inn, Barrister-at-Law. Demy 8yo. 1879. 18s. " This is a work upon a subject of large practical importance, and seems to have been compiled with exceptional care There is an appendix of forms which will be found useful." — Law Times. " Under-Sheritts, and lawyers generally, will find this a useful book to have by them, both for perusal and reterence." — Law Magazine. SHIPPING, and vide " Admiralty." Boyd's Merchant Shipping Laws ; being a Consolida- tion of all the Merchant Shipping and Passenger Acts from 1854 to 1876, inclusive ; with Notes of all the leading English and American Cases on the subjects affected by Legislation, and an Appendix containing the New Rules issued in October, 1876 ; forming a com- plete Treatise on Maritime Law. By A. C. BOYD, LLB., of the Inner Temple, Esq., Barrister-at-Law, and Midland Circuit. 8vo. 1876. . , ll - 5s - " We can recommend the work aB a very useful compendium of shipping law. '— Law SIGNING JUDGMENTS.— Walker.— Vide "Judgments.' * t * All standard Law Works are kept in Stock, in law calf and other bindings. 28 STEVENS AND SONS' LAW PUBLICATIONS. SOLICITORS. — Cordery's' Law relating to Solicitors of the Supreme Court of Judicature. — With an Appendix of Statutes and Kules. By A. CORDERY, of the Inner Temple, Esq., Barrister-at-Law. Demy 8vo. 1878. 148. " Mr. Cordery writes tersley and clearly, and displays in general great industry and care in the collection of cases."— Solicitor^ Journal. " The chapters on liability of solicitors and on lien may be selected as two of the best in the book." — Law Journal. SOLICITORS' GUIDES Vide "Examination Guides." STAMP LAWS.— Tilsley's Treatise on the Stamp Laws. — Being an Analytical Digest of all the Statutes and Cases relating to Stamp Duties, with practical remarks thereon. Third Edition. With Tables of all the Stamp Duties payable in the United Kingdom after the 1st January, 1871, and of Former Duties, &c, &c. By E. H. TILSLEY, of the Inland Revenue Office. 8vo. 1871. 18*. STATUTES, andwde " Acts of Parliament." Biddle's Table of Statutes. — A Table of References to unrepealed Public General Acts, arranged in the Alphabetical Order of their Short or Popular Titles.' Second Edition, including Refer- ences to all the Acts in Chitty's Collection of Statutes. Royal 8vo. 1870. {Published at 9s. 6d.) Net, 2s. Sd. Chitty's- Collection of Statutes, with Supple- ments, to 1878. — A Collection of Statutes of Practical Utility ; with Notes thereon. The Third Edition, containing all the Statutes of Practical Utility in the Civil and Crim inal Administration of Justice to the Present Time. By W. N. WELSBY and EDWARD BEAVAN, Esqrs., Barristers-at-Law. In 4 very thick vols. Royal 8vo. 1865. (Published at 121. 12s.) Seduced to, net, 61. 6s. Supplements to the above. By HORATIO LLOYD, Esq., Judge of County Courts, and Deputy-Chairman of Quarter Sessions for Cheshire. Royal 8vo. Part I., comprising the Statutes for 1873, 7s. Gd. Part II., 1874, 6s. Part III., 1875, 16s. Part TV., 1876, 6s. 6d. Part V., 1877, is. 6d. Part VI., 1878, 10s. Part VII., 1879, 7s. 6d„ sewed. %* Continued Annually. " When he (Lord Campbell) was upon the Bench he always had this work by him, and no statutes were ever referred to by the Bar which be could not find in it." •The Revised Edition of the Statutes, a.d. 1285- 1868, preparecl under the direction of the Statute Law Committee, published by the authority of Her Majesty's Government. In 15 vols. Imperial 8vo. 1870-1878. 19J. 9s. Vol. 1.— Henry III. to James II., 1235-1685. 11. Is. Od. „ 2.— Will. & Mary to 10 Geo. III., 1688-1770 .10 „ 3.— 11 Geo. III. to 41 Geo. Ill , 1770-1800 . 17 „ 4.— 41 Geo. III. to 51 Geo. III., 1801-1811 . 18 „ 5.-52 Geo. III. to 4 Geo. IV, 1812-1823 .15 „ 6.-5 Geo. IV. to 1 & 2 Will. IV, 1824-1831 .16 „ 7.-2 & 3 Will. IV. to 6 & 7 Will. IV., 1831-1836 . 1 10 B 8.-7 Will. IV & 1 Vict, to 5 & 6 Vict., 1837-1842 . 1 12 6 „ 9.-6 & 7 Vict, to 9 & 10 Vict., 1843-1846 . 1 11 6 „ 10.— 10 & 11 Vict, to 13 & 14 Vict., 1847-1850 .17 6 „ 11.— 14 & 15 Vict, to 16 & 17 Vict., 1851-1853 .14 „12.— 17 & 18 Vict, to 19 & 20 Vict., 1854-1856 .16 „ 13.— 20 Vict, to 24 & 25 Vict., 1857-1861 . 1 10 „ 14.— 25 & 26 Vict, to 28 & 29 Vict., 1862-1865 . 1 10 „ 15.-29 & 30 Vict, to 31 & 32 Vict., and ) lg61867 _ 8 y 1Q g Supplement, S ' *„* The above Work is now completed. \* All standard Law Works are kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 29 STATUTES.— Continued. •Chronological Table of and Index to the Statutes to the end of the Session of 1878. Fifth Edition, imperial 8vo. 1879. 14s. •Public General Statutes, royal 8vo, isBued in parts and in complete volumes, and Bupplied immediately on publication. * Printed by Her Majesty's Printers, and Sold by Stevens & Sons. Head's Statutes by Heart; being a System of Memoria Technica, applied to Statutes, and embracing Common Law, Chan- cery, Bankruptcy, Criminal Law, Probate and Divorce, and Convey- ancing. By FREDERICK WILLIAM HEAD, of the Inner Temple, Student-at-Law. Demy 8vo. 1877. Net, Is. 6d. SUMMARY CONVICTIONS— Paley's Law and Practice of Summary Convictions under the Sum- mary Jurisdiction Acts, 1848 and 1879 ; including Proceedings prelimin»ry and subsequent to Convictions, and the responsibility of convicting Magistrates and their Officers, with Forms. Sixth Edition. By W. H. MACNAMARA, Esq., Bar- rister-at-Law. Demy 8vo. 1879. 11. 4s. "We gladly welcome this good edition of a good book."— Solicitors' Journal. Templer's Summary Jurisdiction Act, 1879.— Rules and Schedules of Forms. With Notes. By FREDERIC GORDON TEMPLER, of the Inner Templer, Esq., Barrister-at- Law. Demy 8vo. 1880. 5 S . " We think this edition everything that could he desired." — Sheffield Post, Feb. 7, 1880. Wigram. — Vide "Justice of the Peace." SUMMONSES AND ORDERS.— Archibald.— Vide "Judges' Cham- bers Practice." TORTS. — Addison on Wrongs and their Remedies.— Being a Treatise on the Law of Torts. By C. G. ADDISON, Esq., Author of " The Law of Contracts." Fifth Edition. Re-written. By L. W. CAVE, Esq., MA., one of Her Majesty's Counsel, Recorder of Lincoln. Royal 8vo. 1879. 11. 18s. "Since the last edition of this work was published, by the operation of the Judi- cature Acts, great changes have been effected in practice and pleading. . . . . In the present edition the nature of the right infringed has been taken as the basis of the arrangement throughout. ..." Every effort has been made, while assimilating this edition in form to the companion treatise On Contracts, to maintain the reputa- tion which the work has already acquired." — Extract from Preface. _ '* As now presented, this va'uable treatise must prove highly acceptable to judges and the profession." — Law Times, February 7th, 1880. » " Cave's 'Addison on Torts ' will be recognized as an indispensable addition to every lawyer's library.'' — Law Magazine and Review, February, 1880. TRADE MARKS— Rules under the Trade Marks' Re- gistration Act, 187S (by Authority). Sewed. Net, Is. Sebastian on the Law of Trade Marks.— The Law oT Trade Marks and their Registration, and matters connected there- with, including a chapter on Goodwill. Together with Appendices containing Precedents of Injunctions, &c. ; The Trade Marks Regis- tration Acts, 1875 — 7, the Rules and Instructions thereunder; The Merchandise Marks Act, 1862, and other Statutory enact- ments; and The United States Statute, 1870 and 1875, and the Treaty with the United States, 1877 ; and the New Rules and Instructions issued in February, 1878. With a copious Index. By LEWIS BOYD SEBASTIAN, B.C.L., M.A., of Lincoln's Inn, Esq., Barrister-at-Law. 8vo. 1878. 14s. " The book cannot fail to be of service toa large class ot lawyers."— Solicitors' Journal. " Mr Sebastian has written the fullest and most methodical book on trade marks which has appeared in England since the passing of the Trade Marks Registration "Viewed as a compilation, the book leaves little to be desired. Viewed as a treatise on ' a subject of growing impi rtaice, it a s > strikes us as being well, and at any rate carefully executed " Law Journal. ••Mr Sebastian's book is a carerul statement of the law,"— Lorn Fanes. * *AU Standard Law Works arc kept in Stock, in law calf and other bindings. 30 STEVENS AND SONS' LAW PUBLICATIONS. TRADE MARKS.-C