^immrn :^*.''?'j*i?iiH''^tH.Ki?iri UNCO lMin n iTa t k , Olnrttpll Ham ^rl?nnl Hthrary iMaroIjaU Equttg CUnUcrtton dtft nf IE. 3. MaralfaU. 51.21. 1. 1834 CORNELL UNIVERSITY LIBRARY 3 1924 084 263 759 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263759 PLEADINGS IN EQUITY IN THE COUNTY COURTS, OOUPBIBINa PLAINTS, STATEMENTS IN DEFENCE, PETITIONS, (iKOLTTDnfO THOSE TTNDEE THE TEITSTBE BELIEF ACTS AND TEITSTEB ACTS,) DECREES, ORDERS, AFFIDAVITS, AND OTHER FORMS, WITH OBSERVATIONS, AND NOTES, AHD AN APPENDIX, CONTAINING Tbe Statutes conferring Equitable Jurisdiction, The Trustee Acts, And Trustee Relief Acts, and otber Statutes, AHS ALSO THE COUNTY COURT ORDERS IN EQUITY, BY P. M. LEONARD, Esq., M. A., Of Lincoln's Inn, BARRISTER- AT-LAW. Hontion : WILLIAM AMER, LAW PUBLISHEE, LINCOLN'S INN GATE, CAEBT STEBBT. 1869. 6^-3 5-;j LONDON: PRINTHU BY SHAW AND SOWS, FBTTBR LANE. TO THE HONOURABLE SIR JOHN STUART, VICE-CHANCELLOH, . AND APPELLATE JUDGE IN EQUITY %\& CMIttg CMrts, THIS WOKK WITH HIS PERMISSION, RESPECTFULLY DEDICATED. PREFACE. This collection of Eorms and Precedents of Pleadings in Equity has been prepared with the view of supplying a demand, which some con- siderable experience of proceedings in Equity, in the County Courts, has shown to be an urgent one. Especial care has been taken to frame the Precedents for such simple cases as ordinarily arise in the County Courts, and at the same time to provide that, by slight additions, they may be easUy adapted to more complicated circumstances. In order to make the Porms more useful, prac- tical notes upon several important matters have been inserted in the body of the work ; and the whole of it has been supplemented by an Appendix, containing the Statutes which relate to, or aflfect, and the Rules and Orders which V PREFACE. regulate, tlie jurisdiction and procedure of the County Courts in Equity. Tlie Author has, in the preparation of this Work, had the assistance of Richard S. Tripp, Esq., of the Chancery Bar, to whom he there- fore tenders his best thanks. The Author also has to thank Henry E.. Young, Esq., of the Chancery Bar, and Henry Nicoi, Esq., of the Treasury, for their perusal of this Work in MS. and in print, and for many valuable suggestioiis. TABLE or CONTENTS. CHAPTER I. PAGE Commencement of siiits ---.--._i Plaint to contain concise statement of facts - - . . i Statement to be divided into paragraphs and numbered - - i Plaintiff to pray specific and general relief; relief not to be inconsistent -------..i LiJTmction; receiver; ne exeat regno ■ . . . 2 15 & 16 Vict. c. 86, s. 42, parties under - - - - 2 Decision under sect. 51 not binding on absent parties . . 5 Executor de son tort --......5 Plaint to be written or printed ...... 5 Endorsement on plaint ---.....5 Copies of plaint ; delivery - - - - - - -5 Filing plaint; summons ; service . - . . - 6 CHAPTEE II. Titles and commencement of plaints - - - 7 — 11 CHAPTER III. Plaints under 28 ^ 29 Vict. c. 99, s. \, Art. 1. Plaint by a creditor against an executor ----- 12 against an administrator - - - - 14 against an executor and devisee - - - 16 ■ against administrator and heir-at-law - - 18 by the heir-at-law against the widow and administratrix of the plaintiff's father and the second husband of the widow for an account and administration - - - 20 vi Table of Contents. PAGE Plaint by a residuary legatee against executors and tenant for life of testator's estate, for an account and administration thereof ---------- 21 . by a specific legatee -------23 by a pecuniary legatee ------ 24 by a residuary legatee of personalty - - - - 26 by a feme covert for the administration of an estate, and for the settlement of her share of a legacy - - - 26 by a creditor against the personal representative and trustee of a married woman, to enforce a demand upon her separate estate ---------39 . by one of the next of kin of an intestate for an account and payment of the plaintiff's share of his estate - - - 32 by a creditor or legatee of a testator's estate where it is sought to charge the executor with mismanagement of the estate ----------33 charges in, against an executor ----- 35 allegation in, of misconduct against a defendant, an exe- cutor .--...----36 by an executor to obtain a declaration of the court as to the rights of parties --------37 Plaints under 28 ^ 29 Viet. c. 99, s. 1, Art. 2. Plaint by cestui que trusts for the execution of the trusts of a will 39 by one cestui que trust who has become absolutely entitled to a share of a fund in settlement for the execution of the trusts thereof -------..41 ' by an infant, by his next friend, against the trustees of his parents' marriage settlement, for the execution of the trusts thereof - - - - - 43 by a married woman, entitled for life to the income of a trust fund for her separate use, and her two infant children entitled after her death, to the principal of the fund, against the trustees of it, and her husband ----- 44 - by a married woman, entitled to separate property against her husband, there being no trustee of the property 46 — ^ by a creditor for execution of trusts of a deed executed by debtor --..---..47 Plaints under 28 Sf 29 Vict. c. 99, s. 1, Art. 3. Plaint by a mortgagee to foreclose the equity of redemption - 49 — — by an equitable mortgagee to enforce his security - - 51 ■ by a mortgagor for redemption and for an injunction to restrain an action at law, and the exercise of a power of sale - - 53 Table of Contents. vii PAGE Plaint by the assigjnee of the equity of redemption, against a purchaser from a mortgagee, and the mortgagee, praying to be at liberty to redeem ....--.55 by a mortgagee in possession of an insufficient security for foreclosure of the equity of redemption - - - 58 Plamts wider 30 <^ 31 Viet. c. 142, s. 9. Plaint by vendor for specific performance of an agreement to assign a lease --------60 by a vendor against a purchaser at a sale by auction, for specific performance of the agreement to purchase, and for an injunction -.----..-61 by a purchaser for the specific performance of an agree- ment where the agreement is constituted by letters - - 62 allegations in, of part performance in order to take a case out of the provisions of the Statute of Frauds. (29 Charles 2, cap. 3)-- -- ....64 for delivering up, or cancellation of an agreement for sale of a house, where undue advantage has been taken of the plaintiff's late husband ...... 64 allegation in, for deUvering up or cancelling an agree- ment, and prayer adapted thereto ..... 66 Plaints under 28 Sf 29 Vict. c. 99, s. 1, Art. 7. Plaint for the dissolution, and winding up of a partnership, and for the appointment of a receiver - - - - - 68 by one of two late partners, for an account, and winding up of the partnership - - - - - - 71 in a partition suit under the 31 & 32 Vict. c. 40, the Par- tition Act, 1868, sec. 12 73 CHAPTEK IV. Proceedings after service by a defendant ----- 75 Admission of allegations in plaint - - - 75 Disclaimer ...--.-.--75 Statement - - .-- .'. - - -76 Set-off; infancy; coverture; Pleas of 76 Statute of Limitations j bankruptcy ; Pleas of . - - 76 viii Table of Contents. CHAPTER V. PAGE Proceedings after service ; by a defendant ; forms - - 78 Title and commencement of forms ------ 78 Admission by the defendant of the truth of the allegations in the plaint -- - - - - - - - -78 Affidavit of signature of defendant's admission - - - - 78 Denial of the statements in plaintiff's plaint, and allegations to the contrary thereof ..^.-.-79 Qualified admission of the statements in the plaintiff's plaint - 79 Disclaimer by a defendant .--.-.-80 Disclaimer by a trustee of the trusts of a will - - - - 80 Disclaimer by a judgment creditor ------ 81 Allegation by a defendant of the Statute of Frauds, 29 Car. 2, c. 3, in bar to a plaint for the specific performance of a parol agreement for a lease - - - - - - -81 Allegation of the Statute of Limitations, -3 & 4 Will. 4, c. 27, by a mortgagor, as a bar to a plaint by the mortgagee, for sale or foreclosure ---------82 Form of statement of defendant claiming priority over the plaintiff upon a trust fund - ------83 Statement of settlement of accounts ------ 84 Statement by a defendant trustee of a release - - - - 84 Statement by defendant of the bankruptcy of the plaintiff in bar to his suit ---...---85 Statement by defendant of his bankruptcy - - - - 86 CHAPTER VI. Amendment of plaint --.---.-87 Leave to amend, discretionary with judge - - - - 87 Notice by a defendant requiring plaintiff to amend his plaint ; or revise his suit ---------88 Amendment of Orders ------- 89, 90 Order to amend by adding parties, or generally or in some particular ; suit being in the meantime adjourned - - 91 to appoint a next friend in place of one dead before decree - 91 of one dying after decree - 92 to change next friend before decree, upon new next friend giving security for costs - . - - - 92 to change next friend after decree - - - - - 92 to strike out the name of one of the plaintiffs, and make him a defendant, on giving security for costs - - - 93 Table of Contents. ix PAGE Order to strike out the name of a plaintiif (late an infant) who, OR coming of age, repudiates the suit - - - 93 for amendment by striking out amendments - - - 94 CHAPTER VII. Interlocutory applications - - . . - - 95 Where application should be after notice - - - - - 95 Affidavits in support ; filing of- - - - - - -95 As to costs of a motion - - -_ - - - - - 96 Interlocutory orders, drawing up, filing, and service of - - 96 Order appointing a receiver of a partnership - - - - 97 to restrain defendant drawing bills, &c. - - - - 97 appointing a receiver of real and personal estate - - 98 restraining transfer of stock ------ 98 ~ restraining felling timber by mortgagor in possession - 99 to restrain defendant from prosecuting an action of eject- ment to recover possession, and fi-om selling under a power of sale ----99 to restrain an action at law, after an administration decree 100 CHAPTER VIII. Dismissal of plaint on the part of plaintiff - - . - loi on the part of defendant, when plaintiff does not appear --------- 101 When suit becomes abated ------- 102 ■ defective - - - - 102 Order to dismiss plaint - - - - - - - -103 against a defendant who disclaims - - 103 Order to revive, or that plaint be dismissed - - - 103 — — that assignees take supplemental proceedings to carry on suit, or that plaint be dismissed - - . . . 104 CHAPTER IX. Evidence ; forms .-.-- -.. 105 The maxim tequilas sequitur legem, - - - - - -105 Practice as to evidence . - - . . - 105 X Table of Contents. PAGE Bocuments, as to the reception of ----- - 105 Examination of witnesses de bene esse ----- 105 Appointment of special examiner, as to - - - - - 106 Mode of examination -------- 106 Duty of examiner -------- 106 Documents, notice to admit and inspect ----- 106 application for summonses to produce _ - - 106 summons to witness - - - - - -106 Order to examine a witness, de bene esse ----- 107 to appoint examiner ------- 107 Depositions before special examiner ----- 108 Depositions before special examiner of a witness cross-examined on his affidavit ...----- 109 Affidavit, form of--------- 110 •^^-^-^ for obtaining an order appointing a guardian ad litem, of an infant, who is a defendant, or upon whom it is neces- sary to serve notice of a decretal order . - - - 111 as to books and papers ..--.- ill of there not being any settlement - - - - 112 of there being a settlement which does not comprise the fund 112 in answer to inquiries, and in support of accounts under decretal order - - - - 113 CHAPTER X. Hearing and costs ------.-. ne The day for hearing -- .--..jig Power of court to grant relief consistent with case though not specifically prayed .---..._ jlg Power of court to make final decrees or direct accounts and inquiries ---------- jig As to Costs. Costs in discretion of the court - - - - . -lie Jury, trial by----- ... j^y Table of Contents. xi CHAPTER XI. On Decrees. PAGE Decretal orders - - . . . . . . -118 Appointment of receiver - - - - - . . -118 Directions. When deed ordered to be prepared - - - - - -118 When real property ordered to be sold - - - - -118 When personal property ordered to be sold - - - - 1 18 When accounts or inquiries directed - - - - . us Minutes of decree - - - - - . . -119 Time for compliance with order to be fixed . . - . 119 As to adding to decretal order ------- 1 19 Final decree - - - - - - . - - -119 Endorsement on decrees - - - - . - - -120 Registration of decrees -----... 120 Decretal order ; adminidtration suit ; creditor's suit - . - 120 Decrees. Decree to administer personal and real estates of testator on plaint by a creditor against administrator - - - . 122 Decree on plaint by a specialty creditor to administer real and personal estate ; inquiry as to management of farm, and payments made by executors before specialty debts - - 123 Accounts where testator was interested in partnership business - 124 Declaration that testator's surplus estate, after payment of sepa- rate debts, was in equity liable to partnership debts - - 124 Declaration in a decree that realty is primarily liable for debts - 125 Decree for payment of plaintiff's debt on admission of assets - 123 Final decree where assets sufficient - - - - - - 126 in an administration suit by a creditor where the assets are not sufficient for payment of debts ... 127 Special direction for apportionment where the assets may be insufiScient --------- 127 Decretal order in an administration suit by a legatee - - 128 Decretal order in a legatee's suit, with special directions in consequence of the testator's business having been carried on by his executors -------- 129 Accounts and inquiries in a legatee's suit as to partnership assets ; and directions in a suit by executors of deceased partner against surviving partner ------ 130 Special inquiries in a legatee's suit as to testator's partnership business ---------- 131 b2 xii Table of Contents. Will proved - - 132 Trustee having disclaimed, heir declared trustee of trusts of will 132 Inquiry as to heirs or their real representatives ... 132 whether testator married, and whether he left any wife, children, or issue -------- 133 as to a testator's domicile ; what his property consisted of, and whether the will passed the same ... 133 as to legatee and his children or representatives - - 134 as to husband, and wife, and children - - - . 134 as to nephews and nieces and representatives - - 134 — as to children, and as to any appointment by their mother -. - - ,.. - - - - - - - 134 - as to carrying on business ----- 135 Final decree in an administration suit by a legatee - - - 135 — — — — in a suit by a residuary or general legatee for admi- nistration of a testator's estate, referred back to the County Court by the Court of Chancery . - - . . i3g Decree in an administration suit by a legatee where an executor is held personally liable for the payment of legacies - . 137 Residue declared distributable under the Statutes of Distribution 137 Feme covert's share of fund to be carried over - - - - 133 Infant's share to be laid out, so as to accumulate - - . 133 Executor (defendant) undertaking to pay legacies, the amount ordered to be paid to him ; residue to be carried over- - 139 Decretal order in an administration suit by next of kin - - 139 Final decree in an administration suit by next of kin - - . 140 Inquiries and accounts against surviving executor and trustee - 141 Decree to carry the' trusts of a will into execution ; accounts artd inquiries as to farming business ; children ; removal and appointment of new trustees ---.-- J42 Direction in a decree for the transfer of a fund to which a married woman is entitled to her husband, she consenting, and there being no settlement ••--... 143 Decree for settlement, where a married woman desires a settle- ment 144 Order embodying terms of settlement ----- 144 Decree for execution of trusts under deed of settlement - - 145 Direction in decretal order or decree to make annual rests and charge interest -- . - -- . _ -i4fi Decretal order for reference in foreclosure suit by legal mort- gagee against mortgagor - - - - - - -147 for sale in a suit by a legal or equitable mortgagee - 147 for foreclosure, where mortgage money is directed to be paid to the mortgagee, the mortgagor being in possession 147 Table of Contents. xiii PAGE Decretal order of foi'eclosure by first mortgagee against second mortgagee and mortgagor - - - - ' - - 148 Decree for payment to mortgagee in six months, debt and interest admitted --...... 149 Direction in a mortgage suit for sale in default of payment - 150 Common order enlarging- time on motion before default, where mortgagee is in possession - - - ' - - - 150 Inquiry whether sale by mortgagee be proper to be adopted, and as to costs ; accounts ; sums laid out in completing buildings 151 as to costs, charges, and expenses - - - 162 as to incumbrances on mortgaged estate and their priorities -- ..-.-.. 15-2 - as to incumbrances and parties interested - - - 152 The like inquiry ; with account of what is due thereon and sele 153 ' as to occupation rent ----- 153 as to deterioration - - 163 Directions to be introduced into decretal orders for foreclosure or redemption of a mortgage ; as to annual rests ; and occupation rent -- -----154 Account of insurance premiums . - - . 154 Final decree for foreclosure - ----- 154 Final decree in a Mortgage suit for foreclosure, where the mort- gage money is directed to be paid to the mortgagee - 155 Decree for redemption by mortgagor - - - 155 Decree in a suit for speciflc performance ; purchaser against vendor -------- - 156 foi* speciflc performance - - . - 156 for specific performance of agreement in suit by a vendor, where there is no inquiry as to title - - - 157 dismissing plaint of purchaser for speciflc per- formance .-- ..--. 158 Order dismissing plaint by vendor, and directing return of deposit ----- - -- 158 Decree for delivery up of an agreement to be cancelled - - 159 Partnership ; decree or decretal order for dissolution - - 160 Like decree from time of notice ; renewed lease ; declared part- nership assets ; inquiry as to most beneficial mode of sale ; and if as a going concern, or as wound up ; sale - - 161 Decree for account of partnership dealings and transactions - 163 on plaint by assignees of a bankrupt partner against exe- cutors of deceased partners .---.. 162 Partnership. — Decretal order on plaint by executor of deceased partner for an account against surviving partner - 163 Decretal order on plaint by executor of a deceased partner against the surviving partner, declaring partnership dissolved by the death of the partner ; accounts, &c. - - - - - 163. xiv Table of' Contents. PAGE Decretal order : house, &c., where business was carried on declared partnership assets - - - - - -164 Partnership. — Final decree - - - - - - - 164 CHAPTER XII. Parties. Parties, objection for want of, abolished ----- 165 - service of notice of decree on persons interested - - 165 ' leave to attend proceedings ----- 165 ■ duties of Registrar, as to notice to - - - - 165 ■ - where party to be served is an infant - - - - 165 Order for sei-vice of notice of decretal order upon father of an infant not a party to the suit - - - - - -166 appointing a guardian of an infant served with notice of a decretal order - - - - - - - -166 ■ for an infant served with notice of decretal order to attend proceedings ---.-..-- 166 Registrar's Certificate ; as to - - - - - - 167 Form of the Registrar's Certificate in a suit to administer an intes- tate's estates --------- 167 Special Certificate of Registrar in administration suit, where notice of decree has been given, but the amount of the estate is more than £500 ------- 169 Order for transferring suit where propei-ty exceeds £500 in value ---------- 171 of Court of Chancery for the further prosecution of the plaint directed in the County Court, although subject-matter of suit exceeds in amount £500. - - - - 171 CHAPTER XIII. Revivor and supplement - - - - - - -172 Suit, defect in, by event subsequent to institution of - - - 172 transmission of interest of party to - - - - 172 no person before the court in ----- - 172 Plaintiff, death or marriage of - - - - - -172 Defendant, death or marriage of ----- . 172 15 & 16 Vict. c. 86, 8. 62, Common Order to Revive - - - 172 Service of-------- _ 173 Table of Contents. xv _ , ,_ . , PAQB Order of Eevavor where sole plaintiff has died - - . - 173 to revive in case of marriage of plaintiff - - - . 174 — ^ to revive and to be at liberty to prosecute inquiries against executor of deceased defendant - - - - . -174 in the nature of a supplemental decree upon the bankruptcy of a plaintiff - -.-.-.. 175 to carry on proceedings in the absence of a personal repre- sentative - ........ 175 appointing a representative ad litem - - - - 175 CHAPTER XIV. In what cases an appeal lies ....... 173 As to notice of appealing and making deposit .... 176 Deposit and security - - - . . . . -177 Mode of appeal ......... 177 Transmission of case to court of appeal . - . . - 178 As to default in prosecution of appeal ..... 173 Judgment on appeal ....-.._ 179 As to appeals to the Court of Chancery of the County Palatine of Lancaster ........ 179 As to staying proceedings . . ... 179 Form of notice of appeal .... . . igO Notice on the part of respondent to stay proceedings - - 180 Form of case ......... isi CHAPTER XV. Maintenance and advancement of infants ; as to . - -183 Petition for maintenance ..... . 185 Payment of legacy into the Court of Chancery under 36 Geo, 3, c. 52, 3. 32 ; and 28 & 29 Vict. c. 99, 8. 5 - - .186 Time for payment ........ 186 CHAPTER XVI. Trustee Relief Acts ;a8to - - - - - - -187 Payment into court by trustees, under - - - . - 187 Consolidated Orders of Court of Chancery, Ord. 41, R. 1 - - 188 xvi Table of Contents. PAGE Affidavit of trustee - 18S Petition of trustee for opinion of judge .... 189 must be signed by counsel - - - - - 190 Payment of monies, &c., into savings bank, under 30 & 31 Vict. 0.142, s. 24 - 191 Affidavit of trustee - ... - 191 Duty of trustee, after filing -.-.--- 192 Affidavit of trustees upon paying money into a post office saving.*! bank ' . - . -192 to be filed by a trustee previously to paying trust money into court under the Trustee Relief Acts - - 194 Notice to parties beneficially interested, of payment of trust monies into court - - - - 199 Petition under Trustees Relief Acts .... 196 Petition under the Act further to amend the Law of Property, and to relieve Trustees, viz., the 22 & 23 Vict. c. 35 - - 198 Petition for transfer out of court of trust monies paid in under the Trustees Relief Acts, and invested in a post-office savings bank - 200 Petition for payment out of court of a share of a fund paid in under the Trustees Relief Acts, and carried over to a separate account to await the coming of age of the cestvi que trust • 201 Order on petition under the Trustees Relief Acts, for payment of money out of court .-.-.._ 203 CHAPTER XVIT. The Trustee Acts, 1850, 1852, as to 205 Appointment of new trustees .... 205 Vesting order - - .... . 305 Petition by widow and children of a testator for appointment of a new trustee of the father's will - ... 2O6 Petition o{ cestui que trusts of a settlement for the appointment of new trustees of it, the surviving trustees being out of the jurisdiction - - - -' . . 2O8 Petition by the owner of an equity of redemption of a mortgage 210 Affidavit of fitness of a trustee - - - - 211 verifying the consent of the person who is to become trustee - - - . - . . -211 Order for appointment of a new trustee of a will, on the petition of the widow and children of the testator . . -212 Order on petition of cestui que trusts of a settlement for the appointment of new trustees of it, the survivino- trustee being out of the jurisdiction -----. 2I'> Table of Contents. xvii PAGB Order on a petition presented by the owner of an equity of redemption of a mortgage - _ _ _ -213 Vesting order ; freehold lands ; deed; infant . - - - 214 freehold lands ; will ; infant - - . - 214 copyholds, &c. ; infant - . - . 215 leaseholds; deed; infant - - . . 215 lands ; sole trustee out of the jurisdiction, or not found - ----^.._ 216 lands ; joint trustee out of the jurisdiction, or not found -- -.--.._ 216 lands; uncertainty as to which of several trus- tees is the survivor - . . . . 216 Order vesting lands in a purchaser under a decree for sale - 217 - where a trustee refuses, or neglects for twenty- eight days after demand, to convey them ... 217 Order vesting stock, &c., where a person neglects for twenty- eight days after an order served on him to transfer the stock, &c. .... ... .218 Order vesting the right to sue for a chose in action, where a per. son refuses for twenty-eight days after an order served on him, to assign - . - - . - - -219 Order vesting the right to transfer stock, where one of two joint trustees is out of the jurisdiction ; or cannot be found ; or it is uncertain whether he be living or dead ; or, where"he is an infant - - ..... 219 Order vesting the right to transfer stock, where the sole trustee is out of the jurisdiction ; or cannot be found ; or it is uncer- tain whether he be living or dead ; or, where he is an infant 220 Order vesting the right to transfer stock, where the sole trustee neglects or refuses to do so ..... 221 Order vesting the right to transfer stock standing in the sole name of a deceased person ...... 221 Order vesting copyhold or customary lands - . - . 222 Order in a suit for specific performance by a vendor ; infant de- clared trustee ; person appointed to surrender copyholds - 223 Order in a suit for specific performance of an agreement to grant a lease ; infant declared trustee for the purpose of granting the lease ; and the contingent rights of persons not in esse to that extent barred ; a defendant appointed to assign - - 224 Decree for a partition, without commission or reference - -224 Partition ; person appointed to convey ..... 225 Short form of order for appointing new trustees ... 226 for vesting lands ..... 226 for vesting mortgaged estate; and right to sue for the sum secured .... . 227 xviii • Table of Contents. FAGB! Short form of order vesting a right to recover a chose in action - - ........ 227 CHAPTEE XVIII. Enforcement of Decrees and Orders . - - . - 228 Judge of County Court, power of ----- - 228 Eegistrar, authority of ------- 228 Co. Co. Ords. in Eq., Ord. 16, Hs. 1, 2, 3 - - - - 228 Rs. 4, 5, 6, & 7 - - - 299 Decree, service of copy of -.----. 230 Process ..-- 230 Orders, and warrants of committal - . - . . 230 Contempt of court ... - ... - 230 Attachment -... 230 Arrest for contempt of court, effect of - - - . 230 TABLE OF CASES. A. PAQB Abraham v. Newcombe 143 Acton O.White 28, 47 o. Woodgate 47 Allen V. Bone 8 Anonymous 9 Armstrong v. Bennet 23 Attorney-General v. Alford 187 ' V. Chapman . ■ . > 137 o. Flint 82 i u.MayorofNorwieh 1 Attwood V. Small 159 B. Bailey v. Ford 160 Balinhard v. Bullock 3 Barlee v. Barlee 9 Barlow v. McMurray 88 Barnard v. Pumfrett 137 Bamed v, Laing 2 Barrow v. Barrow * 27 Barrymore r. Ellis 29 Baskett v. Cafe 82 Bayley v. Adams 84 Beckham v. Drake 85 Bellamy v. Breckenden 80 Benson v. Hadfield • 1 Bentley v. Robinson 10 Beresford v. Hobson 27 Bickham ». Cruttwell 14 Blountv. Hipkins.- 14 Boehm v. Wood 159 Boddy V. Dawes 184 Bond «. Rosling 82 Booth V. Booth 45 V. Coulton 25 Bousfield V. Lawford > . • 17 BoTill o. Hitchcock 117 Bown V. Stenson 157 BoydjSx parte • • 1^ V. Brooks 16 Box, In re 198 PAQE Bridge v. Brown 185 Britten V. Britten 113 Broadwood, In re 187 Brown v. Temperley 184 Bruiton v. Birch 4 Buckley, In re 187 BuUpin V. Clarke 27 Burden v. Burden 45 Burroughs v. Oakley 157 Bnrrowes v. MoIIoy 49 Busly V. Seymour , 83, 18 C. Campbell e. Campbell 11 Cannings 8. Flower 184 Cates's Trust, In re 187 Catley v. Sampson 20 Cawley v. Poole 1 Cazneau, In re 187 Chamberlaine v. Chamberlaine ■ • ■ ■ 23 Chauncey V. Knowles 70 Clark V. Clark 14 Clayton v. Clarke 11 t». Benton 231 Clifford V. Turrell 82 Clive V. Carew 44 Cockbarn v. Thompson 5 CoUard v. Roe 174 CoUinson v. Lister 45, 129 Cook V. Gregson 13 Cotham v. West 146 Covington, In re 187 Cox V. Middleton 169 V. Taylor 4 Coxwell V. Franklin^ky 16 Creasor v. Bobinson 5 Curre v. Bowyor 100 D. Dalby v. Pullen 118 Dale V. Hamilton 81 XX Table of Cases. PAGE Darner V. Fortarlington 12 Darnley v. London, Chatham, and Dover Railway Company 87 Davies v Boulcott 4 V. Hodgson 163 Davis V. Front 27 II. Whilmore 80 Deale w. Hall 83 Dearmand v. Wyche 82 De Visme ». De Visme 157 Devonshire v. Elgin 81 Dixon V. Pyner 118 Docker V. Somes ..' 45 Doe V. Guy 23 ». Vardill 133 Doody V. Higgins 5 Dornville v. Bemngton 118 Downs V. Collins 163 Draper, Jn »■« 198 Drevor v. Mawdesley 47 Driver v. Farrand 14 Duncombe b. Greenacre 27 Dundas ». Murray 184 Uunkley v. Dunkley 27 E. Edwards v. Batley 174 Elliott V. Remmington 44 Ellison V. Ellison 47 Errat «. Barlow 184 Evans v. Massey . . , 184 F. Fairman v. Green 184 Finch V. Brown 54 Field ». Donoughmore 47 V. Evans 29 Fitzwilliams w. Kelly 23 Fludyer v. Coker 159 Forbes c. Forbes 133 V. Limond 47 Ford V. Earl of Chesterfield 80 Foster v. Blarkstone 83 Fowler v. Bayldon 4 Fox w. Garrett 17 Francis v. Brooking 27 Franks v. Cooper 16 Furber v. Furber 80 G. Garrard v. Lauderdale 47 Garrett «. Noble 129 PAGE Gaston ». Frankum 27 Gibbs J). Glamis 47 Gibson ». D'Este 159 Gilbert v. Lewis 27 Glover ». Webber 11 Goldsmid v. Stonehewer 3 Green v. Green 46 Green, In re 159 Griffith V. Ricketts 47 Haley ». Bannister 185 Hall V. Burrows 163 Hanbury ». Litchfield 116 Handley v. DaVies 187 Hanman v. Kiley 4 Harrison u. Harrison 11 t). Tennant 160 Heath v. Chadwick 85 Heath v. Perry 184 Heathcote v. Hulme 45 Heighington v. Grant 146 Hemming, In re 187 Heppisley v. Spencer 99 Hewitt V. Nanson 118 Biern». Mill 116 Higgins B. Frankis 80 Hill V. Great Northern Railway Com- pany 116 W.Walker 17 Hind 17. Whitmore 8, 9 Hinnings v. Hinnings 4, 136 Hooper, In re 1 98 Hoste t>. Pratt 184 Hughes t>. Hughes 184 Humphreys v. Harrison 99 Hunter v. Baxter 17 Insole, In re 31 Irvine ». Young 84 Jackson v. Leaf 100 V. North Wales Railway Com- pany ; 39 V. Riga Railway Company . . 175 Jenkins v. Jones 55 Jennings v. Badderley ; . . 16O V. Broughton 159 Jerdein v. Bright 8 Johnson v. Compton 18 V. Gallagher 31 Jones V. Binns \ gy V. Jones ' 100 V. Jukes ' ' j5 Joseph's Will, In re '..'', 193 Table of Cases. XXI K. Kebble, Ex parte 184 Kerrick v. Saffery 86 Kine v. Welfit 184 King V. Smith 99 KnatchbuU v. Fearnhead 23 Knight V. Davis 23 Knights Trusts 1 87 Knott ». Cottee 118 L. Lancaster, In re 9 Lane v. Husband 47 Lane v. Smith 86 Lawton v. Laweon 100 Layard v. March 83 Lazarus, In re 187 Lazonby v. Rawson 24 Leake, In re 187 Lechmere v. Brotheridge 143 Lee V. Hewlett 83 Levett, In re 197 Lincoln v. Wright 45, 81 Lindsay v. Lynch 1 Lloyd V. Lander 86 '— V. Mason 230 Lordi). Colvin 133 Lorenzo, In re 198 Loveridge v. Cooper, , 83 M. Machinnon v. Stewart 47 Major V. Arnott 9 Maiden v. Fyson 158 Margravine of Anspack !;. Noel .... 157 Marner's Trusts, In re 1 88 March v. Russel) 23 Maughan v. Blake 87 Maxwell v. Wightwick 80 McKeuna v. Everitt 105 Meacher v. Young 1 84 Metcalfe, In re 187 Mitchelson v. Piper 16 Montgomery v. Calland 65 Montifiord v. Guedalla 123 Morgan v. Morgan 10 Mug g ridge. In re 199 Munday v. Howe 184 Mundy ». JoUiffe 81 Murray v. Barlee 27 N. Nalder c. Hawkins t> 11 PAGE Nelson ». Booth 119 Newlands v. Paynter 46 Nunn u. Fabian 81 0. O'Brien a. Lewis 230 Orme v. Wright 55 Osborn v. Morgan 26, 27 Owens V. Dickenson 27 P Palmer B. Wakefield 185 Palraerston v. Turner 158 Parker v. Taswell 82 Parry, In re 187 Parsons v. Peters 185 Paxton V. Douglas 100 Paynter v. Houston 13 Pegg V, Wesden 157 Pemberton v. McGill 44 Penny v. Watts 5 Perry v . Meddowcroft 23 Phelps V. Sproule . '. 84 Phillipo V. Mummlngs 82 Phipps V. Child 157 Pimm V. Insoll 15 Plunkett V. Penson 13 Postlethwaite t'. Mounsey 137 Powell «. Thomas 81 Price V. Price 20 B. Bamsbottam v. Walter 49 Rawlings v. Wickham 159 Richardson v. Hortoa 15 Eidgway v, Wharton 81 Roberts v. Ball 187, 230 V. Edwards 23 V. Roberts 14 Robertson V. Quiddington 163 Rochford v. Battersby 85 Rodney v. Rodney 20 Rogers v. Jones 4 ». Soutten 24 Russell V. Sbarpe 11 S. Sandon v. Hooper 58 Sandys v. Long 7 Savage v. Lane 25, 137 Scott V. Spashelt 27 Sergrove v. Mayhew. 86 XS.ll Table of Cases. rAQ'B Sharp ti. Taylor 2 Shattock V. Shattoek 31 Sherwin ». Shakspear 158 Shrabsole o. Schneider 117 ■ Siggers v. Evans 47 Silk V. Prince _ 13 Simmond v. Palles 47 Simpson v. Chapman 163 V. Sadd 157 Skinner t>. McDouall 8? Smith V. Etches 9 V. Keating 47 jj.Moflfatt 85 V. Smith 27 V, Pilkington 65 ». Jaques -69 Spackman v. Timbrell 15 Spodea.Smith 23 Stahlschmidt v. Lett 17 Starten v. Bartholomew 11 Stephens v. Frost 32 Stocken «. Stocken 184 Start V. Mellish -'lO Styles V. Guy 45 Suggitt's Trusts, In re 144 Swallow V. Binns 4 Swan, In re 187 Symonds v. Wilkea • 29 Synnot v. Simpson 47 T. Talbot ». Kemshead 80 Tarratt v. Loyd 4 Tarsey's Trusts, In re 27 Tasker v. Small 53 Taylor M. Meads 27 Thompson v. Smith 2 Thorne v. Kere 18 Thorneycroft i), Crockett 65 Tilley o. Thomas ' 159 Tipping V. Power 80 Troughton V. Hunter 160 Troup V. Eicardo 85 Tubby V. Tubby 20 Trulock V. Robey 55 TuUett V. Armstrong 27 Turner v. Harvey 159 V. Marriott 159 V. Robinson 86, 184 V. Turner 184 Turnleys, In re Will 188 Tyler u. Lake 27 V. Vale t>. Meredith 80 Vidlerr. Parrett 123 W. Wade V. Stanley 8 Walburn v. Ingilby « 1 Walker v. Wetherall 185 Wallace v. Auldjo 27 Wallwyn v. Cputts 47 Ward V. Archer. 82 Warde, In re -. 123 o. Shakeshaft 80 V. Ward , H Waring, In re /. 187 Watkins v. Hogg 141 Watson V. Knight. 47 Webbers. Hunt 54 Wedderburn v. Wedderburn .... 82, 163 Welchman, In re -. . 27 Westwick v. Wyer 23 Wells «. Maldon 187 Webbs, In re Policy 187 Wastover v. Chapman 46 White V. Leatherdale 100 Whitworth v, Oaugain 1 Wiggins V. Peppin 8 Wilding V. Richards 47 Willes V. Levett 99 Williams v. Williams 9, 176 Willis V. Jermegan 84 WilmotB. Pike 83 Wilson V. Cluer 64 ». Metcalf. 54 'J.Paul 16 Wiltshire v. Rabbits 83 Woodburn, In re Trusts 187, 88 Wood V. Logsden 10 V. White 60 Woodgate «. Field 12 Wray v. Hutchinson 160 Wright V. Castle 7 V. Chard 27 In re 193 Wroe V. Seed 35 Wy Hies, In re Trusts !*..!!!!! 187 Wythos V. Lee 159 Y. Young V. Fernie 117 XXIU APPENDIX. Parts I.— IV. STATUTES. PAGE 9 & 10 Vict. c. 95. An Act for the more JEasy Recovery of Small Debts and Demands in England - - - . . 269 10 & 11 Vict. c. 96. An Act for better securing Trust Funds and for the Relief of Trustees - . - - . 287 12 & 13 Vict. c. 74. An Act for the further ReUef of Trustees ---.-.--.._ 288 12 & 13 Vict. c. 101. An Act to amend the Act for the more easy Recovery of Small Debts and Demands in England, and to abolish certain Inferior Courts - - . _ . 277 13 & 14 Vict. c. 35. An Act to Diminish the Delay and Expense of Proceedings in the High Court of Chancery in England --..-.-.._ 243 13 & 14 Vict. c. 60. An Act to Consolidate and Amend the Laws relating to the Conveyance and transfer of Real and Per- sonal Property vested in Mortgagees and Trustees - . - 298. 13 & 14 Vict. c. 61. An Act to extend the Act for the more easy Recovery of small Debts and Demands in England, and to amend the same .-..-.-.. 281 15 & 16 Vict. c. 55. An Act to extend the Provisions of the " Trustee Act, 1850" 311 15 & 16 Vict. c. 80. An Act to abolish the Office of Master in Ordinary of the High Court of Chancery, and to make Pro- vision for the more speedy and efficient Dispatch of business in the said Court .-...-.-. 261 15 & 16 Vict. c. 86. An Act to amend the Practice and Course of Proceeding in the High Court of Chancery - - 254 15 & 16 Vict. c. 87. An Act for the Relief of Suitors of the High Court of Chancery - 264 18 & 19 Vict. c. 43. An Act to enable Infants with the Ap- probation of the Court of Chancery, to make binding Settle- ments of their Real and Personal Estate on Marriage - - 323 19 & 20 Vict. c. 108. An Act to amend the Acts relating to the County Courts - - - - - 282 xxiv Table of Statutes. 21 & 22 Vict. c. 27. An Act to amend the Course of Proce- dure in the High Court of Chancery, the Court of Chancery in Ireland, and the Court of Chancery of the County Palatine of Lancaster - - - - ... 265 22 & 23 Vict. c. 35. An Act to further amend the Laiy of Property, and to relieve Trustees ..... 289 23 & 24 Vict. c. 38. An Act to further amend the Law of Property - - ... . - 334 23 k 24 Vict. c. 145. An Act to give to Trustees, Mort- gagees and others certain Powers now commonly inserted in Set- tlements, Mortgages, and Wills - - - - - 314 23 & 24 Vict. c. 149. An Act to make better Provision for the Relief of Prisoners in Contempt of the High Court of Chancery, and Pauper Defendants ; and for the more efficient Dispatch of Business in the said Court - ... - 328 Bo & 26 Vict. c. 42. An Act to regulate the Procedure in the High Court of Chancery, and the Court of Chancery of the County Palatine of Lancaster ...... 267 27 & 28 Viot. c. 112. An Act to amend the Law relating to future Judgments, Statutes, and Recognizances ... 331 28 & 29 Vict. c. 99. An Act to confer on the County Courts a limited. Jurisdiction in Equity - - - -231 30 & 31 Vict. c. 48. An Act for amending the Law of Auctions of Estates -- _..... 332 30 & 31 Vict. c. 132. An Act to remove Doubts as to the Power of Trustees, Executors, and Administrators to invest Trust Funds in certain Securities, and to declare and amend the Law relating to such Investments ...... 321 30 & 31 Vict. c. 142. An Act to amend the Acts relating to the Jurisdiction of the County Courts - -- . . .237 30 & 31 Vict, c, 4. An Act to amend the Law relating to Sales of Reversions ........ 334 31 & 32 Vict, e, 40. An Act to amend the Law relating to Partition .......... 334 APPENDIX. PART V. Orders and Rules in Equity - ... 337 Forms in Equity ....... sgs — 402 Scale of Costs and Charges in Equitable Matters - 403—406 COUNTY COURT PLAINTS. CHAPTER I. COMMENCEMENT OF SUITS. A. SUIT under either tbe 1st, 2nd, Srd, or 7tli clause of section 1, of the Stat. 28 & 29 Vict. cap. 99, or the 9th section of the 30th & 31st Vict. c. 142, must be commenced by plaint (a) or sumnions(aa), and if commenced by a plaint, such plaint may be entered in the county court within the district of which the Defendant, or one of the Defendants shall dwell or carry on his business at the time of bringing the [action or] suit, or it may be entered, by leave of the judge or registrar, in the county court, within the district in which the Defendant or one of the Defendants dwelt or carried on business, at any time within six calendar months next before the time of [action -or] suit brought, or with the like leave in tbe county court, in the district of which the cause of [action orj suit wholly or in part arose. Plaint to contain concise statement of Jacts. — The plaint^ must contain a concise statement of the facts material to the plaintiff's case, and of the grounds upon which he seeks relief (J). Statement to he divided into paragraphs and numbered. — The state- ment should be divided into paragraphs numbered consecutively (c). Plaintiff to pray for specific and general relief. Belief not incon- sistent. The relief asked for must be consistent with the case made by the plaint, which should pray not only for the specific relief to which the plaintiff conceives himself entitled, but also for general relief (d). the Plaintiff, however, must not claim by his plaint two sorts of relief, one of which is inconsistent with the other : Thus, a person who is the heir-at-law of a testator must not file a plaint to have the will established, claiming a devise under it, and also seeking, in the alter- native, for a declaration, that his right as heir-at-law in opposition to the will may be established (e). ■ (a) Co Co. OrdB. in Eq., Ord. I, B. 1. case which shows actaal breach of trust, (aa) 30 & 31 Vict. c. 142, B. 27. and not merely a case, which coupled with (6) Co. Co. Ords. in Eq., Oi-d. 1, R. 3. (6) something not alleged, would amount to a All facts' necessary for the purpose of breach of trust. lAttorniy-General y. Siowinff the Dlaintiff's title must be stated Mayor of Norwich, 2 My. & Cr. 406; noXely and with precision. [ WaWurn Mitf Eq. PI. (5th ed.) p. 46.] TMi/ri My. & K. 61, p. 77. Tripp's (c) Co. Co. Ords. in Eq., Ord 1, R. 6, Ch Kp.7j Mitf.Eq.Pl. (5thed.)p.4S.] and Form 4. App. pott, title Admmis- inri thnnleader should bear in mind that tration. ^wations aSen most strongly against (d) Co. Co. Ords. in Eq., Ord. I. R. .-«. fheSv making them. \_Benson\. Had- {e) Und,ay v. Lyv^h, 2 Sch. & L. 1. «.1/ 5 bX 546 :1 where therefore a Cawley v. PooU, 1 Hem. & M. SO, ofain'tiff "eek^ to charge a party with a Wkittaorth y. Gaugain, Cr. & Ph. 325, breach of trust, the plaint must state a p. 335. g Plaints, Parties. Injunction: Receiver : Ne exeat regno.-mme an injunction, or tbe appointment of a receiver is considered necessary, it should be prayed for by the plaint. (But see Co. Co. Ords. in Eq., Ord. 5, R. 3.) Where, also, the application is for a writ of ne exeat regno, the writ should be prayed for in like manner ( /). But if in the progress of a suit a case for a writ of ne exeat regno should be made out, the Court would grant an order for the issuuig of such writ, although not specially prayed for (g). 15 4- 16 Vic. c. 86, s. 42 ; parties under.— With, reference to tbe parties to suits in equity, it is provided by the 15 & 16 Vic. c. 86, s. 42, as follows :— Rule 1. Any residuary legatee or next of kin may, without servmg 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 proceeds of real estate directed to be sold, may, without serving any other legatee or person interested in the proceeds of the estate, have a decree for the administration of the estate of a deceased person. Rule 3. Any residuary devisee or beir may, without serving any CG-residuary devisee or co-heir, have the like decree. Rule 4. Any one of several cestms que trust under any deed or instrument may, without serving any other of such cestms que trust, have a decree for the execution of the trusts of the deed or instrument. 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 tbe trusts. Rule 7. In all the above cases tbe Court, if it shall see fit, may require any other person or persons to be made a party op parties to the suit, and may, if it shall see fit, give the conduct of the suit to such person as it may deem proper, and may make such order in any particular case, as it may deem just, for placing tbe 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. (/) Sharp V. Taylor, 11 Sim. 50. tained whether the debt be legal or equi- Ig) Bamed v. Lding, 13 Sim. 265. table: otherwise the writ will be refused. The Affidavit In aupport of the application Thompson v. Smith, 12 L. T. (N. S.) 9! for t^rit of ne exeat regno must show S. C; 34 Law J., Ch. (N. S.) 412' 11 that tbe amount of tbe debt is clearly ascer- Jui-ist (N. S.) 276. ' Plaints, Parties. 3 Rule 8. In all the above cases the persons who, according to the present practice of the Conrt [of Chancery], would be necessary parties to the suit, shall be served with notice of the decree (A), and after such notice they shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit, and they may, by an order of course, have liberty to attend the proceedings under the decree ; and any party so served may, within such time as shall in that behalf be prescribed by the General Order of the Lord Chancellor, apply to the Court to add to the decree (i). Rule 9. In all suitsconcerning real or personal estate which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent the persons beneficially interested under the-trusts, in the same manner and to the same extent as the executors or adminis- trators m suits concerning personal estate, represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially inte- rested 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 (J), By section 44, it is further provided that, if in any suit or other pro- ceeding before the Court, it shall appear to the Court that any de- ceased person who was interested in the matters in question has no legal personal representative, it shall be lawful for the Court either to proceed in the absence of anj' person representing the estate of such deceased person, or to appoint some person to represent such estate for (A) As to the mode in which directions with notice, under Co. Co. Ords. in Eq., are obtained on the question, what parties Ord. 7, B. 2, may apply to the Court at its are to be served with an order or decree, [then] next sitting, or by leave of the see Co. Co. Ords. in Eq., Ord. 7, R. 2, and Judge, at any subsequent sitting, to vary form of notice. App. Form 28. The or add to the decretal order, practice in the Court of Chancery is : After (j) Where, in a foreclosure suit by a first the parties who are interested in the mortgagee against the mortgagor and estate have been ascertained, the Judge, second mortgagees, the second mortgage upon the first summons before him in was held by the trustees of a settlement, chambers to proceed with the decree, under which trusts were declared for a hus- considers any circumstances that may be band and wife for their lives, and for the brought to his attention respecting any of children of the marriage in remainder, the the parties, and directs which of them are Court of Chancery held that, as the trustees to be served, and whether service on were in possession of settled funds only, any of them may be dispensed with, and not of funds applicable to the purpose Balinhard v. Bulloch, 9 Ha. App xiii. of redemption, the tenants for life under (i) By Ord. 23 of the Cons. Ords. of the the settlement, and the children who at- Co. of Ch. the time appointed for adding tained twenty-one, were necessary parties • to a decree is one month ; but by Co. Co. to the suit. Goldamid v. Stonehewer, Orda. in Eq. Ord. 7, R.3,any person served 9. Ha. App. xxxviii. - B 2 4 Plaints, Parties. all the purposes of the suit or other proceeding, on such notice to such person or persons (if any) as the Court shall think fit, either specially or generally by public advertisements ; and the order so made by the said Court, and any orders consequent thereon, shall bind the estate of such deceased person in the same manner in every respect as if there had been a duly constituted legal personal representative of such deceased person, and such legal personal representative had been a party to the suit or proceeding, and had duly appeared and submitted his rights and interests to the protection of the Court (ft). And by section 51, that it shall be lavirful for the Court to adjudicate on questions arising between parties, notwithstanding that there may be some only of the parties interested in the property respecting which the question may have arisen, or that the property in question is comprised with other property in the same settlement, will, or other instrument, without mkking the other parties interested in the property respecting which the question may have arisen, or interested under the same settle- ment, will, or other instrument, parties to the suit, and without requiring the whole trusts and purposes of the settlement, will, or other instrument, to be executed under the direction of the Court, and without takina: the accounts of the trustees or other accounting parties, or ascertaining the particulars or amount of the property touching which the question or questions may have arisen (I) : provided always, that if the Court shall (J) There is a distinction between suits Lloyd, 2 Jur. (N. S.) 371. Bogert t. against persons liaving the legal interest Jones, 1 Sni. & Gif. 17. See also Mor- only, where such persons are the executors gan's Ch. Acts, and Ord. (3rd ed.) 819, of the mortgagor, and suits where they are et. >eq. merely trastees under a settlement of the Wber»the share of a deceased legatee, in mortgaged property. Hanman v. mieg, a residue, was under £20, the Court made 9 Ha. App. xl. anorderforpaymentofthesharetothenext Where one of the defendants in a snit of kin of the deceased residuary legatee, died pendente lite, in poor circumstances, withoutrequiringadministtationtobetakea but his interest in the smt was identical out. Hinmgt v. Minings, 2 H. & M. 32. with that of those parties still before the (0 The Court will not, under sect. 61 of Court, the Court allowed the suit to be 15 & 16 Vict. c. 86, dispense with theper- prosecuted without a personal represeuta- sonalrepresentativeofatrustee.wheresuch ti»e of the ^eeeased defendant. Cox t. Tajf- representative bag active duties to perform I /.^•/;i'^;MS»i^"- " ""•" **^«'=' °^ "" ** execution of the trust, piwler v, lect. 44, of the 15* 16 Vict. c. 86, is, that ^aj^Am, 9 Ha. App. Ixxviil. whatever the circumstances of the case may There mi»t be some of the parties in- ^'twtr^n^f r^u^n " "J^cretionary terested in the question in eve^y point of with the Court, and the Court most con- view either before the Court or representwl Oder whether what is asked of it can be there. Where, therefore the ouMtioT™ done without injury to any one." Per between survW^T^^htt \nl " " Jiircn, iJL. J. (U.S.) Ch.9U. Astothe required the parties representinz the in- class of cases where personal represents- terests of deceLed children to be before it tives are dispensed with, see Damea v. Swalloio v. Binns 9 Ha Ann^I.!) « r' Bouleott, 1 Dr. & 8. 23. Tarratt v. 17 Jur 395 ' *'-^PP-*'"''S-*'- Parties filing Plaint, Summonses. 5 be of opinion that the application is fraudulent or collusive, or for some other reason ought not to be entertained, it shall have power to refuse to make the order praj'ed. Except, therefore, in some special cases, all persons materially in- terested in the subject matter of the suit, ought to be made parties, if within the jurisdiction, so that the Court may be enabled to do complete justice by deciding the rights of all such persons, and so that the orders of the Court may be safely executed, and future litigation prevented (»»). When, for instance, an estate is to be sold under the decree of the Court, the general rule (with a possible exception in some cases of extreme difiSculty) is, that all the persons interested in the proceeds of the sale must, to secure a proper and advantageous one, and protect the title of purchasers from being open to inquiry or impeachment, be parties to the suit, or be served with notice of the decree under the 8th Rule of Sect. 42 of the 15 & 16 Vict. c. 86 («). Decision under Sect. 51 not binding on absent parties. — It may also be observed that the 51st section of the 15 & 16 Vict. c. 86, which empowers the Court to adjudicate on questions between some only of the parties, does not render the decision binding on those who are absent, as the 42nd sect, of the same statute does when notice of the decree has been served under the 8th Rule of that Act (o). Executor de son tort. — Farther, when the personal estate of a de- ceased person is to be administered, the fact of an executor de son tort being before the Court will not dispense with a regular personal repre- sentative {p), inasmuch as the executor de son tort is only treated as executor for the purpose of being charged as such {q). Plaint. — The plaint should be either written or printed, and should be on foolscap paper; and it may be wholly or partially printed or written ; and dates and sums mentioned in the plaint may be expressed in figures (?•). Endorsement on plaint. — Where the plaint in equity is filed by an attorney, he should endorse thereon his name or firm and place of business, and that the plaintiff sues by him as his attorney (solicitor) («). Capies of plaint : delivery. — Where there are more plaintiffs than one, and the plaint is 'not filed by an attorney (solicitor), the plaintiff who (m) Mitf. Eq. PI. (5th ed.) p. 190. 325. Pee also Spence, Eq. Jur. vol. 2, p. Tripp's Ch. F. p. 8. As regards all suits in 695, note 6. equity, the strict rule is, that all persons (n) Doody v. Higgins, 9 Hare. App. materially interested in the subject of the p. xxxii. sait, however namerons, ought to be par- (o) Doody v. Higgint, ubi luprd. ties, that there may be a complete decree (p) Penny v. Watts, 2 Ph. 149. between all parties having material in- (q) Creaior v. Jiobinion, 14 Beav. 589, terests. Cochbum v. Thompson, 16 Ves. (r) Co. Co. Ords in Eq.,Ord.23,K. t. (») Co. Co. Ords. in Eq., Ord. 1, R. 4. 6 Summonses, Service. actually files it should endorse thereon his name and address {t). The plaintiff or his attorney (solicitor) should deliver at the office of the registrar as many copies.of the plaint as there are persons to be brought before the Court as defendants (m). There should also be an extra copy of the plaint left with the registrar for the use of the Judge (»). Filing plaint; summons; serwce-^The registrar should, on the filing of the plaint, make out a summons to the defendant (or to every defendant if more than one) to appear and submit to the judgment of the Court (iv). The summons, with a copy of the plaint annexed, should be then issued by the registrar to the bailiff, who should serve the same within seven days (a;). The service should be proved in conformity with the practice hitherto of the County Court {y). Any proceeding, (copy of a decree or order) or document may, by leave of the registrar, be served by the attorney of the party requiring to effect such service ; but the costs of such service, and of the proof thereof, will not be allowed except by order of the Judge (z). If a defendant is out of England, the Judge (or in his absence the registrar) may, upon an affidavit, stating the fact of the defendant's being abroad, direct the service of the plaint and summons to be effected within such time and in such a manner as the Judge (or registrar) may think fit (a). Where in other cases service of the summons cannot be effected by reason of the absence of the party, or from any other sufficient cause, the Judge may wholly dispense with such service or order substituted service (J). Every document, of which the mode of service is not specially defined by the County Court Orders in Equity may be served, and the service thereof proved in conformity with the practice which has hitherto prevailed in the County Court, except so far as the same relates to the time of service (c). (0 Co. Co. Ords. in Eq., Ord. 1, R. 4. (a) Co. Co. Ords. in Eq., Ord. 1, R. 10. (m) Co. Co. Ords. in Eq., Ord. 1, R. 6. (6) Co. Co. Ords. in Eq., Ord. 23, R. 14. (») Co. Co. Oris, m Eq., Ord. 23, R. 8. (c) See form of affidavit in support of (lo) Co. Co. Ords. m Eq., Ord. 1, R. 7. applicaHon for service abroad, or for snb- (=r\ an. Cn n.rt« in i?„ «,., t ^ n stituted service. Sch. of Forms, No. 2 App. post. See also Co. Co. Ords. ii Eq., Ord. 23, R. 3 ; and as to service sei Co. Co. Rules, IS.')?, Rules 44 to 58, an( Co. Co. Rules, 1864, Rule 10, App. post. , ■; ^ ^ "."=. i" Ji4., uiu. 1, n,. / . application tor service abroad, or for snb- r< o°' ^°- ^^'- '" ^'^■' °''^- ^' ^- 9- stituted service. Sch. of Forms, No. 2, (jO Co. Co. Ords. in Eq., Ord. 1, Rs. App. post. See also Co. Co. Ords. in / \'r. f. « J - ^ „ Eq., Old. 23, R. 3; and as to service see ^^(i) Co. Co. Ords. m Eq., Ord. 23, R. Co. Co. Rules, 18.57, Rules 44 to 58, and Plaints, Titles, Commencement. 5 CHAPTER ri. TITLES AND COMMENCEMENT OF PLAINTS. No. I. Plaint in Equity, In the County Court of , holden at A.B. of&c.(«) Plaintiff, and C. D. of (fee. [executor of, ^c, or administrator of, ^c, or devisee of, S^c, or legatee of, S^c, or heir-at- law of, ^c., or next-of-kin of, ^c., as the case maybe] Defendant. A. B., the above-named Plaintiff, states as follows : — No. II. Plaint in Equity. In the County Court of , holden at A. B. of (fee, and C. D., of &c., executors of the will of deceased ..... Plaintiffs, and E. F. of &c., and G. H. of &c. Defendants. A. B. and C. D., the above-named Plaintiffs, state as follows : — (a) Every plaint in eqnity must state name by which he is generally known, the name, address, and description of the Co. Co. Rules, 1857, B. 34. Co. Co. Ords. plaintiff and of the person intended to in Eq., Ord. 23, R. 7. be brought before the Court as defendant; Where a solicitor is employed to in. and where any party sues or is sued in a stitute proceedings, there ought to be a representative character, he must be so special authority given to him by the client described, Co. Co. Ords. in Eq., Ord. 1 , R. or clients for that purpose ; but a general 2. SaeSandyi v. Long, 2 My. & K. 487. authority is sufficient to enable the soli- Tripp's Ch. Forms, p. 1, n. (c). Where, citor to defend a suit. Wright v. Castle, however, the plaintiff is unacquainted with 3 Mer. p. 12. In that case Lord the defendant's Christian name, the de- Eldon observed, " there can be no doabt fendant may be described in the plaint by as to the course of this Court's jurisdic. his surname, or by hfs surname and the tion — if a solicitor files a bill in the name initials of his Christian name, or by that of his client without having authority 8 Plaints, Titles, Commencement. No. III. PLAINT BY HUSBAND AND WIFE. Plaint in Equity. In the County Court of , holden at - - - Plamtiffi<, . Befendants. A. B. and CD , the above-named Plaintiffs, state as follows: — A. B. of &c., and C. D., his wife (J) and E. F. of &c. and G. H. of &c. - No. IV. PLAINT BT A MARRIED WOMAN. Plaint in Equity. In the County Court of , holden at A. B. the wife of C. D. of &c., hereinafter named a Defendant, by G. H. of &c., her next friend (c) - Plaintiffs, and E. F. of &c., and C. D. of &c. - - - - - Defendnnts. A. B., the above-named Plaintiff, by G. H. her next friend, states as follows : — from him for so doing, then, if the plain- tiff wishes to have the bill dismissed, it will be 80 ordered, and the solicitor will be made to reimburse him all the ex- penses occasioned by the bill having been filed. It is also settled that if the soli- citor asserts, but the plaintiff denies, that any anthority vras given, and there is nothing but assertion against assertion, the Court will say that the solicitor ought to have secnred himself by having an authority in writing ; and that, not having done so, he must abide the consequences of his neglect." Before, therefore, a solicitor commences or defends a suit on behalf of a client, he should, as a matter of prudence, obtain a written authority for that purpose. See also Wade y. Stanley, 1 Jac. & W. 674. Wiggiru v. Peppin, 2 Beav. 403. Allen v. Bone, 4 Beav. 493. Jerdein v. Bright, 6 L. T. (N. 8.) 279, S. C. 10, W. R. 380. (i) The husband and wife are joined as co-plaintiffs in a suit where the subject matter of it is claimed by the husband in right of his wife. (f ) Where the wife sues in respect of her separate property, Jier husband should not be made a co-plaintiff, but she should sue by a next friend, and the husband should be made a defendant. The next friend must sign a written authority allowing his name to be used as such ; and inasmuch as he is responsible for the costs to which the plaintiff may become liable in the course of the suit or proceeding, he must be a substantial person. Co. Co. Ords. in Eq., Ord. 23, R. 19. Hind v. Whiimore, 2 K. & J. 458, S. C, 26 L. J. (N. S.) Ch. 394. Where a bUl was filed by a married Plaints, Titles, Commencement. No. V. PLAINT BY INFANTS. Plaint in Equity. In the County Court of , liolden at A. B. and C. D. of &o. (d), infants by E. F. of their next friend Plaintiflfs and G. H. of &c., and I. F. of (fee. - -" - - - Defendants. A. B. and 0. D., the above-named Plaintiffs, by E. F., their next friend, state as follows : — woman, by a next iriend who was in insol- vent circnmstances, the Court held that the next friend mnst give seenrity for costs. Smith v. Etches, 1 H. & M. 668 ; S. C, 10Jur.(N. S.)124.' The address and description of the next friend must be given in the title to the plaint or other proceeding. Major v. Ar- nott,2]uT. (N.S.) 80. And by Co.Co.Ords. in Eq., Ord. 23, R. 19, the next friend must sign an undertaking to. be responsible for any costs to which the plaintiff or applicant may become liable in the course of the suit or proceeding, and such undertaking is to he annexed to the plaint or proceeding. See Williamt v. Williams, II L. T. R. (N. S.) 681. Where, however, a married woman has no separate property, and is unable by reason of poverty to procure a person to act as her next friend, she may, upon a proper ca^e, obtain an order to sue alone informd pauperis. That application should be supported by an affidavit setting forth the grounds npon which she seeks for such indulgence, and the affidavit should also state that she has not £5 worth of pro- perty of her own. In re Lancaster, 18 Jur. 229. Hind v. Whitmore, ante. Where a next friend of a feme covert plaintiff died pending the suit, the Court ordered the bill to be dismissed unless a new next friend were appointed within two months. Barlee v. Barlee, 1 Sim. & S. 100. (d) In the case of an infant plaintiff, he must sue by a next friend, who must sign a written' authority for the use of his name as such ; and the address and de- scription of the next friend mnst also be stated in the title of the plaint. See Major V. Amott, 2 Jur. (N. S.) 80. By the practice of the Court of Chancery, while the next friend of a married woman must be a person of substance, that of an infant need not satisfy such requirement. Hind V. Whitmore, ante. The same princi- ple would appear to apply to proceedings on the equity side of the County Court, unless the I9th Rule of the 23rd Ord. of Co. Co. Ords. in Equity, which requires the next friend ofany infant, married woman, ovother party, to sign an undertaking to he respon- sible for any costs to which the plaintiff (or applicant) may become liable, should lie considered'to render it necessary that all next friends in proceedings in equity in the County Courts should be persons of sub.«7i*?ej^,2D. G. M.&G.390. Francis V. BrooHng, 19 Beav. 347. Buncombe v. Greenacre, 7 Jur. (N. S.) 650. Smith v. Smith, 7 Jur. (N. S.) 539. Seton on Decrees, vol. 2, 667. The power or right of a married ■woman to enjoy property for her separate use, independently of her husband, exists only, ot- rather is protected only by a Court of Equity. While a woman is discovert, the separate estate clause has no operation, but it arises upon the event of marriage, Tullett V. Armstrong, 1 Beav. 1, 32; S. C. on App. ; 4 My. & Cr. 390. "Separate estate" may be created for the benefit of a married woman, by any gift in her favour, which clearly shows an intention on the part of the grantor or settlor that she should so enjoy the property. The usual words by which property is limited for the separate use of a married woman are, for "her sole andgeparjteuae independently of her husband." The mere direction to pay the fund in the case of married women "into their own proper and respective hands, to and for their own use and benefit," was held not sutficient to vest the fund in them for their separate use. Tyler v. Lahe, 2 R. & My. 183. In Bavis v. Prout, 7 Beav. 288, where the gift was to trustees upon trust for the sole and absolute use of the testator's daughter. Lord Langdale, M. R., held, that a separate estate was created ; but in the recent case of Ghilbert v. Leioia, I De G. ; J. & S. 38 ; S. C. 32, L. J. (N. S.) Ch. 347 ; 9 L. T. (N. S.) 164 ; 9 Jur. (N. S.) 187 ; 11 W. B. 223, Lord Westbury held that a gift by a testator to his widow tor her " solo use and benefit," without the intervention of trustees, did not, upcn bur subsequent mamagc, create a separate estate for her. And see In Be Tarncy's Trusts, 1 Law Rep., Equity Ser. p. 561. When a married woman has separate property, she has, unless restrained by a condition or proviso accompanying the gift or settlement, power to dis- pose of such property — either inter vivos or by will, or by an instrument in the nature of a will. She may, moreover, render such property in a Court of Equity liable to her debts or engagements. See Bullpin V. Clarke, 17 Ves. 365. Murray V. Barlee, 3 M. & K. 209. Owens v. BicUnson, Cr. cSc Ph. 48-52. Gaston v. Fra7^hum, 2 De.G.kSm. 561. Wright V. Chard, 4 Drew, 673 ; S. C. 29 L. J. (N. S.) Ch. 82, and on App. ibid, 415; S. C. 1 L. T. (N. S.) 138, and on App., ibid, 182; S. C.5Jur. (N. S.)1334; and see the judgment of Lord Westbury, in Taylor v. Meads, 34, L. J. (N. S.) Ch. 203; S. C. 11 Jur. (N. S.)S.C. 166; 12L. T. (N. S.) 6; S. C. 13 W. Rep. 394, in which he reviewed the principles and doctrines of the Court of Chancery as applicable to the power of disposition of a married woman in respect of her separate estate, and held 28 Plaints. 4. The defendant M. N. has, since the death of the testator, pos- sessed himself of the whole of his personal estate. 5. On the day of the plaintiff intermarried with the defendant N. B., and there are issue of that marriage children, namely : [Here state names of children, and their ages.] 6. The said N. B. was, on the day of , duly adjudged bankrupt, and the defendant R. S. is the creditor's assignee of his estate. 7. No settlement was made on the occasion of the marriage of the plaintiff with the said N. B., nor has any been made since. 8. The plaintiff is desirous of having a proper settlement made on her of her share of the residuary estate of4he testator. 9. The plaintiff has applied to the defendant M. N., and also to the said R. S., and requested them to consent to the making of such settle- ment. The plaintiff has also requested the defendant M. N. not to pay over the said share of the plaintiff in the said residuary estate to the defendant R. S., but to retain the same until such settlement as afore- said shall be made thereout. The defendants have refused, and do still refuse to comply with such first-mentioned request ; and the defendant M. N. has always refused, and still refuses to comply with the last-men- tioned request ; and the defendant M. N. threatens to pay over the plaintiff's share of the said residuary estate to the defendant R. S. 10. The whole of the personal estate of the testator does not exceed in amount or value the sum of £500. that she might dispose of her equitable was declared by the will of the testator interest, either in fee or otherwise, by any she should hold for her separate use. instrument. His Lordship in that case ob- If, however, a married woman is re- served, " The whole matter lies between a strained from alienating, disposing of, or married woman and her trustees, and the anticipating her separate property or the true theory of her alienation is, that any income thereof, she cannot by any act or instrument, be it deed or writing, when dealing on her part render it liable to be signed by her, operates as a direction to affected by her. the trustees to convey or hold the estate No particular form of expression is ne- according to the now trust wliich is created cessary to create this fetter upon the or- by such direction ; and that is suHicient to dinary powers attaching to separate pro. convey the feme covert's equitable in- perty of a married woman, but the words terest. When the trust thus created is used must plainly show that it is iu- clothed by the trustees with the legal tended to restrain her from anticipation, estate, the alienation is complete both at The usual expressions are, " And it is law and in equity." In that case it was hereby declared that the [marring woman] held that a will, although not a valid shall not have any power to alienate, dis- execution of a power reserved to a married pose of, or anticipate the [property] or woman to appoint by any instrument in the interest or income thereof, and it is writing to be by her signed, sealed, and further declared that her receipt alone shall delivered, was a valid devise of real estate be a good and sufficient discharge, &c." given to her and her heirs, and which it See Acton y. White, 1 Sim. & S. 429. Plaints. 29 The Plaintiff therefore prays as follows: — 1. That an account may be taken of the personal estate of the testator, and that the same may be duly administered under the decree of the Court. 2. That it may be declared that the plaintiff M. B. is entitled, for the benefit of herself and her children, to have a settlement made upon her and them, and her other issue by the said N. B. (if any) out of the share to which the plaintiff M, B. is entitled in the residuary estate of the testator. 3. That proper directions may be given for the preparation and execution of such settlement. 4. That the defendant M. N. may be restrained by the order and injunction of this Court from paying to the defendant R. S. the share of the plaintiff M. B. in the said residuary estate. 5. And that the plaintiff may have such further or other relief as the Court may think fit. This Plaint is filed by [see ante, Chap. III., Prec. No. VIII.] No. XVIII. PLAINT BY A CREDITOR AGAINST THE PERSONAL REPRE8KNTATIVE AND TRUSTEE OF A MARRIED WOMAN, TO ENFORCE A DEMAND UPON HER SEPARATE ESTATE. Title and commencement, (finte, Chap. II., Tit. JVo. VI.) A. B. of states as follows : — 1. The said C. D. was at the time of the date of the deed next herein- after stated the wife of G. H. Sarrymore v. EllU, 8 Sim. I. Field v. the wife sliall, from the date of the sen- Usans, 15 Sim. 375; and Symondi v. tence, and whilst the separation shall con- Wilket, 12 W. R. 541, and on appeal, 13 tinue, be considered as a feme sole with W, R. 1026; and S. C, 10 L. T. (N. S.) respect to property of every description 153, and on appeal, 12 L. T. (N. S.) 548, which she may acquire, or which may and 11 Jur. (N. S.) 659. come to or devolve upon her, and such Under the provisions of the Act Amend- property may be disposed of by her in ing the Law relating to Divorce, 20 & 21 all respects as a feme sole ; and on her Tict. c. 85, 88. 25, 26, it is enacted that, deceme the same shall, in case she shall "In every case of a judicial separation, die intestate, go as the same would have 30 Plaints. 2. By a deed, dated, &c., made between the said G. H. of tLe one part, and C. D. of the other part, it was agreed by the said parties that they should live separate from each other, and that the said C. D. sliould have power to dispose of her real and personal estate in the same manner as if she were a feme sole. 3. The said C. D. and the said G. H, lived separate and apart from each other from the time of the date and execution of the said deed down to the time of her death. 4. The said C. D. subsequently to the execution of the said deed became entitled to cei-tain sums of money and other personal property for her separate use independently of her said husband. 5. The said C. D. was at the time of her death indebted to the plaintiff in the sum of , for goods sold and delivered by him sub- sequently to the execution of the said deed, upon her express promise and undertaking to pay the said debt out of her separate estate, and on account or in respect of the said debt, the said C D. accepted two bills of exchange. [Jlere state the Jonn of the bills, or the nature of the security, whatever it may be.] 6. The said C. D. duly made her will or testamentary appointment, [state the same}, and thereby gave the money assured to her by a policy on her life, and certain chattels, unto the defendant E. F., and she ap- pointed him executor of her said will. 7. The testatrix died on the day of , without having revoked or altered her said will. {Here state the nature of tlie property then in existence, and that it is now more than enough to satisfy the plaintiff^ s claim.} 8. On the day of administration, with the said will annexed, was duly granted by the Court of Probate to the defendant E. F., limited so far only as concerns all the right, title, and interest of the testatrix to such personal estate as she by virtue of the said deed of separation; had a right to dispose of, and had by her said will dis- posed of. 9. The plaintiff under the circumstances herein stated submits that he is entitled to have the before-mentioned property belonging to the said C. D. at the time of her death, for her separate use, applied for the repayment, with interest, of the said debt owing from her to himself, gone if her husband had been then dead : when such cohabitation shall take place, provided, that if any such wife should shall be held to her separate use, subject again cohabit with her husband, all however to any agreement in writing made such property as she may be entitled to between herself and her husband whilst Plaints. 31 and to her other creditors entitled to be paid their debts out of her separate estate. 10. The whole of the separate estate of the said C. D. does rot exceed in amount or value the sum of £500. The Plaintiff therefore prays as follows : — 1. That an account may be taken of what is due for principal and in- terest to the plaintiflf in respect of his said debt of , and of what is due for principal and interest, in respect of all other debts owing by the said C. D. at the time of her death, and which remain unpaid. 2. That an account may be taken of all sums of money or other pro- perty forming the separate estate of the said C. D., and of the receipts and payments of the defendant E. P. in respect thereof, and that the same estate may be applied in payment of the sepai-ate debts of the said C. D. (h). 3. That the plaintiff may have such further or other relief as the Court may think proper. This Plaint is filed by [see ante, Chap. III., Free. No. VIII.] separate." Me Insole, 13 L. T. (N. S.) of contract, and wrongs and injuries, and 455. S. C, 11 Jur. (N. S.) 1011. S. C.,. sueing and being sued in any civil pro- 35 L. J. (N. S.) Ch. 177 ; and see 21 & 22 ceeding." Vict. c. 108, s. 8. (A) See the recent case of ShattocJc v. " And in every ease of a judicial separa- Shattock, 2 L. R., Eq. Ser., 182; and tion, the wife shall, whilst so separated, be Johnson v. Gallagher, 30 L. J. (N, S.) considered as &feme sole, for the pui'poses Ch. 298. 32 Plaints. No. XIX. PLAINT BY ONE OF THE NEXT OF KIN OF AN INTESTATE FOB AN ACCOUNT AND PAYMENT OF THE PLAINTIFF's SHARE OF HIS ESTATE (J). Title and commencement, {ante, Chap. II., Tit. Ko. I.) 1. J. C, late of, , deceased, was at the time of his death possessed of or entitled to personal estate not exceeding in amount or value the sum of £600. 2. The said J. C. died at on the day of intestate, leaving the plaintiff and the defendant, (his brothers,) his sole next of kin. 3. On the day of the defendant procured letters of administration to the personal estate and effects of the said J. C. to be granted to him by Her Majesty's Court of Probate. 4. The defendant as such administrator as aforesaid has possessed himself of all the personal estate and effects of the said J. G. 5. The assets of the said J. C, which came to the hands of the defendant, were more than sufficient for the payment of all the debts, funeral, and administration expenses of the said J. C. 6. The defendant has in his hands a surplus of the intestate's per- sonal estate, which is divisible between the plaintiff and defendant as his sole next of kin (J). 7. The plaintiff has applied to the defendant to furnish him with an account of the personal estate of the intestate, and of the application thereof, and to divide the surplus thereof (after the payment of the debts and funeral expenses of the intestate, and the costs of the administration to such estate), between the plaintiff and the defendant; but the defendant has refused, and still refuses so to do. The Plaintiff therefore prays as follows : — [1 and 2 as in Paragraphs 2 and 3 of Plaint I., suhdituting " Intes- tate' for " Testator."] (i) One of the next of kin may maintain (J) There must be a charge that there is a suit for an account and payment of a a surplus after payment of debts and in. share of an intestate's estate without cumbrances. Stephens T. Froit, 2 Y. making the other next of kin parties. & Col. Ex. 297. 15 !c 16 Vict. c. 86, s. 42. Plaints. 33 • 3. That so much of the said personal estate as may be necessary may be applied under the order of the Court in the payment of the debts and funeral expenses, and the expenses of the administra- tion of the estate of the intestate. 4. That the surplus of the personal estate of the intestate (after such payments as last aforesaid) may be equally divided, and that one moiety thereof may be paid to the plaintiff, and the other to the defendant. 5. That the plaintiff may have such further or other relief as the court may think fit. This plaint is filed by [See ante, Chap. III., Free. No. VIII.] No. XX. PLAINT BY A CREDITOR OR LEGATEE OF A TESTATOR's ESTATE WHERE IT IS SOUGHT TO CHARGE THE EXECUTOR VITITH MIS- MANAGEMENT OF THE ESTATE. Title and commencement, (ante, Chap. II., Tit. No. I.) [State will of testator — death — proiate, as in Prec. No. VIII., para- graphs 2 and 3, uTid the particulars of his property at his death, as in Prec. No. X., paragraph. 5.] 3. The testator was at the time of his death possessed of, or entitled to the said messuag'e for some estate, term, or interest therein, which is still subsisting ; and the good-will of the business which was carried on by the testator, was and is [of considerable value, or, ifknown, state the value.'] 4. The defendant has carried on and is now carrying on the business which was so carried on by the testator, on the said premises, with the money and other assets of the testator, and in so doing has sold a certain portion of the stock-in-trade and other assets of the testator, and applied the moneys which he has received therefrom partly in buying goods in substitution for those which he has sold, and partly to his own use. 5. The defendant has contracted divers debts and liabilities since he has so carried on the said business. 6. The defendant is entirely without any means to enable him to pay the said debts, except by having recourse to the assets of the testator ; and the defendant is in fact in insolvent circumstances. 7. If the term or interest of the testator in the said premises, and the good-will of the said business were disposed of, the same would (together D 34 Plaints. with the property of tlie testator which is now in the possession of the defendant), realize a sufficient sum to satisfy all the testator's debta. 8. The defendant threatens and intends to assign, transfer, dispose of, or charge or incumber the said premises or the term or interest of the testator tberein. 9. The plaintiff submits that under the circumstances herein appear- ing, a manager or receiver ought to be appointed of the testator's out- standing estate, with proper directions for carrying on the said business until the same or the good-will thereof can be sold for the benefit of the testator's estate. 10. The whole of the personal estate of the testator does not exceed in amount or value the sum of £500. The PlaintiiF therefore prays as follows : — 1. That an account may be taken of the personal estate of the testator come to the hands of the defendant ; and that in taking such account he may be charged with all sums of money which may have been received by him in carrying on the before-mentioned business. 2. That it may be declared that the said premises, or the term and interest of the testator, or the term and interest of the defendant therein, together with the good-will of the testator's business carried on by him on such premises, formed, and are part of the assets of the testator, and that the same, together with the testator's stock-in-trade, and the stock, goods, and effects which have been bought by the defendant for the purpose of replacin" such of the effects of the testator as he has disposed of, may be directed to be sold ; and that the defendant may be directed to transfer or deal with the before mentioned premises, as this Court may direct. 3. That the personal estate of the testator may be applied in payment of his debts, and funeral and testamentary expenses, in a due course of administration. 4. That some proper person may be appointed to take, have, and su- perintend the management and carrying on of the said business until the same shall be sold, and to collect, get in, and receive the outstanding debts and effects of the testator. 5. That the defendant may be restrained by the order and injunction of the Court from collecting, getting in, receiving, or in any manner interfering with the said outstanding debts and effects, and from transferring or disposing of, or in any manner dealing Plaints. 35 with the said premises, or the term and interest of the testator or of the defendant therein. [If the premises are leasehold, say, and from transferring or parting roith the lease of the said premises, and from doing or causing, permitting, or omitting to he done any act wh&rely the said lease and license, or either of them, or the right of renewal thereof, may become forfeited.} 6. And for such further or other rehef as the court may think fit. This plaint is filed by [See ante, Chap. III., Free. No. VIII.] No. XXI. CHARGES AQAINST AN EXECUTOR {k). 1. The said defendant also, on the death of the testator, took possession of his business premises, fixtures, and stock-in-trade, and carried on the business and employed therein the capital and stock of the testator, from his death until the sale of the business hereinafter stated, and made large profits thereby. S. In the year the said defendant sold the good-will, remaining stock-in-trade, and shop-fixtures of the testator's business and his interest in the said shop, and received the proceeds of such sales, amounting to [here state the amount.] 3. The said defendant has long since paid and discharged all the tes- tator's debts and liabilities, and his funeral and testamentary expenses, and has invested part of the residuary personal estate of the testator in the purchase, in his own name, of £ annuities, [or, as the case may 6e.] 4. The plaintiff being desirous that the said sum of £ annuities should not remain under the sole control of the defendant, caused a writ of distringas to be issued on the day of , to restrain any transfer thereof. 6. On the day of Messrs. the plaintiff's solicitors, were served with a notice from the solicitors of the Governor and Company of the Bank of England in the usual form, stating that an application had been made to allow the transfer of the [gtoch], and that such transfer would be allowed unless an injunction was obtained, and served on or before the day of (k) In cases of palpable neglect of duty Seed, 4 Giff. 423. S. C, 9 Jur. (N. S.) by executors they may be ordered to pay 1122. S. C, 9 L. T. (N. S.) 254. tho costs of an administration suit, Wroe v. d2 36 Plaintg. No. XXII. ALLEGATION OF MISCONDUCT AGAINST A DEFENDANT, AN EXBCUTon, 1. After satisfyiDg the legacies bequeathed by the will, there wag a considerable net residue or surplus in respect of the general persoiml estate of the testator, which the defendant has applied to his own use. 2. The defendant, amongst other sums or allowances, of which he insists upon having the benefit^ claims to be allowed certain large sums ot" money for repairs alleged to have been done or performed to several of the messuages belonging to the testator, but which repairs have in fact never been done or performed ; and the several messuages are now in a dilapidated state for want of the needful reparations. 3. The defendant, during the perioii which elapsed between the date of the death of the testator and the day of occupied one of the messuages belonging to the testator, situate \»tate mliere], and which last-mentioned messuage was and is of the annual value of £ at least^ and might have been let to a tenant at that rent,, at which rate plaintiflF submits the said defendant ought to be charged in respect of bis occupation of the said premises. 4. The plaintiff submits that it was the duty of the defendant to have invested and accumulated the surplus income arising from the estate of the testator for the benefit of the plaintiff and the other parties interested therein; and that the said defendant ought to be charged with that sum or amount which would have been realized if he had invested and accumulated all surplus monies which were received by him in respect of the testator's estate, and with the interest from time to time accruing thereon in respect thereof; or that the said defendant ouorht at least to be charged with all and every the sum and sums of money received by him and not duly applied by him, together with interest ' from the respective times such sums of money were received. 1. The plaintiff prays that the trusts of the will of the testator may be carried into execution by and under the direction of this Court. 2. That an account may be taken of the sums from time to time re- ceived by the defendant in respect of the rents and profits of the leasehold estates, and of the sums of money properly paid or applied by the defendant; that the annual balances remaining- m the hands of the defendant may be ascertained; and that the defendant, in taking such account, may be charged with interest at the rate of £ upon such several balances. Plaints. 87 No. XXIII. PLAINT BY AN EXECUTOR TO OBTAIN A DECLARATION OP THE COURT AS TO THE RIGHTS OF PARTIES. Title and Commencement, (ante, Chap. II., Tit. JVo. I.) !• C. E. H., late of &c., duly made his will, dated the day of , and thereby directed that all his debts, funeral and testamen- tary expenses, should be paid by his executors, and devised and be- queathed to his wife M. A. H., (since deceased), the whole of the rents arising- from his freehold messuages, his household furniture, and other property, for her life ; and after her death he directed that the said free- hold messuages should be sold; and he bequeathed the money arising there- - from, together with all his other property, to his nephews and nieces, to be divided among them share and share alike, their heirs, executors, administrators, and assigns. And the testator appointed his wife the said M. A. H., the defendant A. E., and the plaintiff J. K., executors of his said will. 2. The testator died on the day of , without having revoked or altered his said will ; and the same was proved on the day of by his executors in the Court of 8. The testator never had any children, or nephews or nieces ; but he left his cousins, the defendants E. L., E. H., and A. C, his co-heiresses at law. He also left the said M. A. H. his widow, and the defendant C. H. his uncle, and sole next of kin. 4. The plaintiff and his co-executors possessed themselves of the testator's personal estate, and after payment thereout of all his debts, fiineral and testamentary expenses, a residue remained in their hands. The rents of the testator's real estate and the income of his residuary personal estate were received by the said M. A. H. during her life, 5. The said M. A. H., after the testator's death, married the plaintiff. She died on the day of and letters of administration to her estate and effects have been duly granted to the plaintiff. 6. On the death of the said M. A. H., the testator's residuary real and personal estate became divisible amongst the parties entitled thereto; but inasmuch as there never were any nephews or nieces of the testator, no disposition of the said estates can be made without the aid of this Court. 38 Plaints. 7. It is alleged by the defendants J. H. K. and E. K., the children of the said A. K., the plaintiff's co-executor, and who was a cousin of the testator, and by M. E. H., who is now living at [or out of the jurisdiction of this Court] ; and by A. F., who are the children of E. H, one of the cousins of the testator, that they, the said several defendants, were meant by the testator under the description of his nephews and nieces in the testator's will ; while, on the other hand, it is insisted by the defendants E. L., E. H., and E. C, as such co-heiresses, that the said testator's real estate has become and is undisposed of. The plaintiff submits that either the testator's personal estate did by the terms of the said will vest absolutely in the testator's widow, the said M. A. H., in which case the plaintiff claims the same as her administrator; or that the same has also become and is undisposed of, and belongs to the plaintiff, and the said C. H., the sole next of kin of the testator. 8. The plaintiff as such executor as aforesaid, in conjunction with his co-executor the defendant A. K., is in possession of the testator's residuary personal estate, and he is desirous to act as the Court shall direct, claiming such beneficial interest as the Court shall consider him entitled to. 9. The whole of the testator's estate does not exceed in amount or value the sum of £500. 'J'he Plaintiff therefore prays as follows : — 1. That it may be declared by this Court who are the parties respec- tively entitled to the testator's residuary real and personal estate. 2. That the testator's estate may be administered by this Court, and that for that purpose all proper directions may be given, and accounts taken, the plaintiff being ready to account for all the personal estate come to his hands as such executor as aforesaid. 3. That the costs of this suit may be provided for out of the testator's estate as this Court shall think proper. 4. That the Plaintiff may have such further or other relief as the nature of the case may require. This plaint is filed by [See ante, Chap. III., Prec. No. VIII.] Plaints. 39 No. XXIV. PLAINTS UNDER 28 & 29 VICT., 0. 99, SECT. 1, ART. 2. PiAINT By CESTUI QCE TRUSTS FOR THE EXECUTION OF THE TRUSTiS OF A WILL k). Title and commencement, (ante, Chap. II., Tit. No. I.) 1. W. N., late of , deceased, by his will devised and bequpathed all his freehold and leasehold estates unto the defendants upon trust as to his freehold and leasehold estates, to pay the rents thereof to M. P. for her life to and for her separate use, and after her death upon trust to sell the same, and after paying out of the proceeds of such sale the expenses incident thereto, to pay and divide the residue of such proceeds among the plaintiffs equally; and as to bis personal estate upon trust for the said M. P< absolutely ; and the testator appointed the defendants and the said M. P. executors and executrix of his will. (i) A trust is an equitable right or title to, or interest in, property real or per- sonal, distinct from the legal ownership thereof. Sturt v. MellUh, 2 Atk. 610; Story's Eq. Jur. vol. 2, s. 694. The jurisdiction of the County Court extends to every description of trust where the trust estate does not exceed in amount or value the sum of £500 ; 28 & 29 Vict. e. 99, 3. 1 , art. 2 ; and in dealing with the execution of trusts, the County Court has power to follow the trust fund into the bands of third parties, in such cases as those in which the Court of Chancery does so. 28 & 29 Vict. c. 99, s. 2. The mere allegation that the defendant is a trustee for the plaintiff, is not suiii- cient to give a Court of Equity jurisdic- tion ; but the plaintiff must state the neces- sary facts, to show that the defendant is a trustee for the plaintiff. Jackson v. North Wales Baihoay Company, 1 H. & T. 75 ; S. C. 18 L. J. (N. S.) Ch. 91 ; S. C. 13 Jur. 69 ; Sp. Eq. Jur. vol. 2, p. 6. By the 28 & 29 Vict. c. 99, sect. 10, art. 6, proceedings for the execution of trusts should be taken or instituted in the County Court within the district of which the defendants or any or either of them reside or carry on business. But see ante, p. 1, and 30 & 31 Vict. c. 124, s. 1. The precedent given in the schedule of forms annexed to the Co. Co. Ords. in Equity, under the head " Execution of Trusts," is that of » plaint by a trustee against the cestui que trust. The only guide to the practitioner with respect to any other plaint is the note at the end of the form, stating that " where a suit is by u cestui que trust, the plaint may be modelled mutatis mutandis, on the plaint by a legatee." It should, however, be borno in mind, that the Court of Chancery requires some sufficient reason to be stated by a trustee for originating proceedings in that Court, with a view of relieving himself from per- forming the trusts reposed in him. Some allegation, therefore, should be made in a plaint to justify a tiustee in filing it, such as a difficulty in putting a construc- tion upon the trust instrument; in de- termining who are the parties beneficially interested ; misconduct on the part of the cestui que trusts ; or, the age or infir- mities of the trustees ; or the like. The precedent In the schedule states no ground for instituting the suit. 40 Plaints. 2. The testator died in the month of without having revoked or altered his will, and the same was proved by the defendants and the said M. P. on the day of , in 3. The defendants duly accepted and acted in the trusts of the will. 4. The testator was at the time of his death seized and possessed of certain freehold and leasehold estates. 5 The defendants and the said M. P. paid all the debts and funeral and testamentary expenses of the testator out of his personal estate. 6. The defendants, after the death of the testator, entered into the receipt of the rents of the freehold and leasehold estates of which he was seized and possessed at the time of his death, and paid the said rents and profits to the said M. P. up to the day of her death. 7. The said M, P. died on the day of 8. The defendants continued to receive the rents of the testator's freehold and leasehold estates after the death of the said M. P. untU the sale thereof as hereinafter mentioned. 9. In the month of the defendants sold all the said freehold and leasehold estates, and received the purchase monies arising from such sale, and after deducting the expenses of and attending the sale there remained and still remains in their hands, a clear surplus, which ought to have. been and to be paid and divided among the plaintiffs ; the defen- dants however have only paid to the plaintiffs the sum of £ each in respect of their several shares in the testator's estates, and have retained in their hands the balance. 10. The plaintiffs have made frequent applications to the defendants to furnish them with an account of their receipts and payments in respect of the testator's freehold and leasehold estates, and the produce of the sale thereof, and to pay over the balance to them according to their .respective shares ; but the defendants have refused, and still refuse, to furnish any such accounts, or to make any such payments as last afore- said. 11. The trust estate in question in this suit does not exceed in amount or value the sum of £500. The Plaintiffs therefore pray as follows : — 1. That the trusts of the will of the testator, so far as the same remain unexecuted, may be carried into execution. Plaints. 41 2. That an account may be taken, under the direction of this Couit, of the estates (which the testator directed to be sold) of or to which he was entitled at the time of his death, and of the ^•ents and profits thereof, from the death of the said M. P., which have been received by the defendants or either of them, or by any other person by their or either of their order, or for their or either of their use. 3, That the like account may be taken of the estates of the tes- tator which have been sold or disposed of by the defendants, and of all sums of money which have been received by or come to the hands of the defendants or either of them, or of any other person by their or either of their order, or for their or either of their use in respect of the proceeds of such sale ; and that after allowing' the defendants all proper expenses which have been incurred in and about the sale of the said estates, and the sums which have been paid to the plaintiffs as aforesaid, the defendants may be charged with the balance remaining in their hands in respect of the said rents, and of the money produced by the sale of the testator's estates, with interest thereon at the rate of £i per cent, per annum. i. That the respective shares of the plaintiffs in the residue of the testator's estates may be ascertained, and that the defendants niay be decreed to pay such respective shares accordingly, together with such interest as aforesaid. 5. That the plaintiffs may have such further and other relief as the Court may think fit. This plaint is filed by [See ante, Chap. III., Free. Ho. VIII.] No. XXV. PLAINT BY ONE CESTUI QUE TRUST WHO HAS BECOME ABSOLUTELY ENTITLED TO A SHAHE OF A FUND IN SETTLEMENT, FOR THE EXECUTION OF THE TRUSTS THEREOF. Title and Commencement, (ante, Chap II., Tit. No. I.) E. B., of an inquiry on the a bill filed for redemption, claims for ex- subject. Sandon v. Hooper, 6 Beav. 246 j penditure made by him on the property, Seton on Decrees, (3rd ed.) p. 383. must prove such expenditure at the hear- Plaints, 59 mises, subject to the plaintiff's mortgage. So far as the plaintiff can discover, he is the only person other than the defendant T. P. who hath or claims any interest in the equity of redemption of the premises, or any part of them. The Plaintiff therefore prays as foUows : — 1. That an account be taken of what is due to him for principal, interest, and costs (including such necessary expenses as afore- said). 2. That unless the amount appearing due to the plaintiff on the account when taken be paid to him, together with the costs of this suit, by a day to be named by this Court, by the defendants or some or one of them, the defendants may stand absolutely foreclosed of all equity of redemption in the said premises. 3. That for the purposes aforesaid all necessary accounts may be taken, inquiries made, and directions given. 4. That the plaintiff may have such further or other relief as the nature of the case may require. This plaint is filed by [See ante, Chap. III., Free. No. VIII.] 60 Plaints. No. XXXV. PLAINTS UNDER 80 & 31 VICT., C. 143, SECT. 9. PLAINT BY VENDOK FOR SPECIFIC PEHFORMANCB OF AN AQHEEMENT TO ASSIGN A LEASE. («) Title and commenaemaBt, (ante, Chap. 11., Tit. No. I.) 1. The purchase money of the property in question in this suit does not excesd the sum of £500. 2. The plaintiff was at the time of entering into the agreement herein- after stated possessed of or entitled to a messuage, &c., situate, &c., for the residue of a term of \_eighty] years thereof granted by a certain indenture of lease, dated the day of , and made between 3. On &c., the plaintiff agresd to sell the said premises to the defen- dant, and the defendant agreed to purchase the same of the plaintiff for the residue of the said term of years, at the price or sum of £ ; and an agreement in writing was then executed by the plaintiff and defen- dant, and was as follows. \^E[ere state the agreement.'\ 4. The plaintiff has delivered to the defendant, an abstract of his title to the said lease, and the defendant has accepted the title thereto. 5. The plaintiff has made divers applications to the defendant to pay the purchase-money for, and to accept an assignment from the plaintiff of, the said lease ; but he has refused, and still refuses to do so. The Plaintiff therefore prays as follows :— 1. That the said agreement so made and entered into as aforesaid may be specifically performed by the defendant, the plaintiff hereby undertaking to perform his part thereof. (») By section 9, of the 30 k. 31 Vict, exceed £500 ; as to the County Court in c. 142,||the jurisdiction -which is given hy which the proceedings may be taken, see the 28 & 29 Vict. c. 99, so far as relates to ante, p. 1, and 30 & 31 Vict. c. 142, s. 1. cases within the fourth head of the 1st To a plaint for the specific performance, section of that Act may be exercised by the parties to the contract are in general the County Court in all suits for specific the only proper parties. Wood v. White, performance of, or for the reforming, de- 4 M. &C. 460; see also Mitf. Eq. P. (5th livering up or cancelling any agreement for ed.) Notes on Parties, section xviii. As the sale, purchase, or lease of any pro- to the right to a decree for specific per- perty where, in the case of a sale or pur- formance, see Seton on Decrees (3rd ed.), chase, the purchase-money, or in case of p. 601. a lease, the value of the property shall not Plaints. 61 2. That proper directions may be given for settling an assignment of the said premises to the defendant for the remainder of the plain- tiff's term therein under the said lease, the plaintiff being willing to execute the same, and that the defendant may thereupon be decreed to pay to the plaintiff the said purchase-money of £ and interest thereon from the day of 3. That the defendant may be ordered to pay the costs of the suit. 4. That the plaintiff may have such further or other relief as the nature of the case may require. This plaint is filed by {See ante, Chap. III., Free. No. VIII.] No. XXXVI. PLAINT BT A VENDOR AGAINST A PURCHASEB AT A SALE BY AaCTION, POR SPECIFIC PERFORMANCE OF THE AGREEMENT TO PURCHASE, AND FOR AN INJUNCTION. Title and commencement, (ante. Chap. II., Tit. No. I.) 1. The purchase-money of the property in question in this suit does not exceed the sum of £500. 2. On the day of , the plaintiff caused certain free- hold hereditaments, situate at , in the parish of in the county of , to be put up for sale by public auction, at the hotel, in , in lots. The said heredi- taments were described in printed particulars of sale, produced at the said auction, as lots 3. The said particulars of sale, so far as the same relate to lots are as follows : — [Here state particulars of Sale]. 4. The defendant attended the said auction, and bid for and was declared to be the purchaser of the said lots , at the price of £ , and paid a deposit of £ upon the said purchase, and the defendant and the plaintiff severally signed an agreement written at the foot of a copy of the said conditions of sale, to which a copj' of the said particulars of sale was annexed, and which agreement is as follows : — [Set out the agreement and the alleged payment of the deposit, according to the agreement]. 5. On the day of , an abstract of the plaintiff's title was delivered to the defendant. It appeared by the said abstract, as the fact is, that the plaintiff was, and is well seised of or entitled to sell and convey the said lots [ and ] for an estate of inheritance in fee simple, free from incumbrance. 62 Plaints. 5. No objection to the title to the said lots Las been made by the defendant. 6. The defendant, however, refuses to complete the said purchase, and alleges, but contrary to the fact, that there has been some misdescription in the particulars of sale as to the house forming; part of the property so sold to the defendant as aforesaid, inasmuch as, Ikere set forth alleged misdescription.'^ 7. The plaintiff has always been, and still is ready and willing speci- fically to perform- the said agreement on his part, nevertheless the defendant refuses to perform the same on his part, and on the day of he commenced an action in the Court of against the plaintiff to recover thesaid deposit of £ , and interest thereon, and such action is still pending. The Plaintiff therefore prays as follows : — 1. That the said agreement of the day of may be decreed to be specifically performed by the defendant, the plain- tiff hereby offering to perform the same on his part. S, That the defendant may be ordered to pay the purchase-money for the said hereditaments, with interest thereon, according to the said agreement, to the plaintiff. 8. That the defendant may be restrained from prosecuting the said action, and from commencing any other proceedings at law, for the same purpose, against the plaintiff. 4. That the Defendant may bo ordered to pay the costs of this suit as well as the costs incurred in the said action at law. 5. That the plaintiff may have such further or other relief as the nature of the case may require. This plaint is filed by [See ante, Chap. III., Free. Ifo. VIII.] No. XXXVII. PLAINT BY A PURCHASER FOR THE SPECIFIC PERFORMANCE OF AN AGREEMENT WHERE THE AGREEMENT IS CONSTITUTED Br LETTERS. Title and commencement, {ante, Chap. II., Tit. No. I.) 1. The purchase-money of the property in question in this suit does not exceed the sum of £500. 2. In the month of , the defendant was seised in fee of an estate, called , situate in the parish of in Plaints. 63 the county of , and being desirous of disposing of the same estate, he employed Mr. , of &c., as his agent for that purpose. The plaintiff being desirous of purchasing the said estate, employed Mr. , of &c., as agent for that purpose, and various negotiations took place between the said Mr. and Mr. , as the respective agents of the plaintiff and defendant. 3. On the day of , the said , as agent for the defendant, wrote and sent to the said , as agent for the plaintiff, a letter of that date, which was in words and %ures following, (that is to say) — [Sere state letters asking terms]. 4. On the day of , the said Mr. wrote and sent to the said Mr. in reply to his said letter, a letter of that date, which was in the words and figures following, (that is to say), [Here state Ihe letter in reply, agreeing to purcliase at price named in defendanfs letter"] . 5. The plaintiff claims to be entitled under the agreement and con- tract entered into by the said letters of the [date], to have the said [premises] conveyed to him, free from incumbrances. 6. The plaintiff has frequently applied Ho the defendant to furnish him with an abstract of the title of the said estate, and to carry the said agreement into execution, but he has refused to do so (m).' The Plaintiff therefore prays as follows': — 1. That the defendant may be decreed specifically to perform the agreement so entered into by him with the plaintiff as aforesaid, and to deduce a title to the said [pi'emises], and to execute a proper conveyance thereof, free from incumbrances, to the plain- tiff, the plaintiff hereby offering to perform the said agreement (w) In cases of sales it is expedient that offer is a simple acceptance, without the a regular written agreement should be introduction of any new term. At any signed by botfi parties, which should con- ti:iie before an offer is accepted the seller tain the names of the seller and buyer, the may add to or alter the terms he has description of the estate, and the price, offered, and of course the purchaser may with all necessary stipulations. Letters, act in like manner. See Sugd.'on Vendors bowerer, may amount to a sufficient and Purchasers, (13th edit.) pp.45, 111, agreement, but they will not constitute and the cases there cited, an agreement unless the answer to the 64 Plaints. and upon the execution of the said conveyance to pay to the defendant the amount of the said purchase-money, with such interest, if any, as the plaintiff may be bound to pay thereon. 2. That the defendant may be ordered to pay the costs of this suit. 3. That the Plaintiff may have such further or other relief, as the nature of the case may require. This plaint is filed by [See Chap. III., Free. No. VIII]. No. XXXVIII. ALLEGATIONS OF PART PEHFORMANCE, IN ORDER TO TAKE A CASE OUT OF THE PROVISIONS OF THE STATUTE OF FRAUDS. (29 CHARLES 2, CAP. 3.) A. The plaintiff, in pursuance of the said agreement so entered into be- tween the plaintiff and defendant as aforesaid, performed all the works so agreed to be performed by him to the said premises, including those mentioned in the said last-mentioned letter ; and the plaintiff in pur- suance of the said agreement, and in full faith and reliance that it would be performed on the part of the defendant, permitted the defendant to enter into, and he did accordingly, enter into and remain in posses- sion of the said premises. B. The defendant, however, now refuses to perform the said agreement on his part, and he pretends that no contract haj been entered into by or between the plaintiff and defendant for purchasing the said premises for the term and interest of the plaintiff therein, under and by virtue of tlie said indenture of lease : whereas the plaintiff charges the contrary of such pretences to be the truth. C. The defenda'nt at other times pretends that he has not accepted the title of the plaintiff as shown by the said indenture of lease : whereas the plaintiff charges that the defendant has accepted the plaintiff's title to the premises. No. XXXIX. PLAINT FOR DELIVERING UP, OR CANCELLATION OP AN AGREEMENT FOR SALE OF A HOUSE, WHERE UNDUE ADVANTAGE HAS BEEN TAKEN OF THE PLAINTIFF'S LATE HUSBAND. Title and commencement, {ante, Cluip. II., Tit. JVb. I.) 1. The value of the property in question in this suit does not exceed the sum of £500. 2. E. D. of &c., was previously to and at the time of the making of his will, and subsequently, on very intimate terms with the defendant. Plaints. 65 3. The said E. D., by his will, dated the day of devised to his wife, the plaintiff M. D., a messuage in fee, [here describe the property,] and appointed the plaintiff executrix of his will. 4. The defendant is one of the attesting witnesses to the said will, and exercised very considerable influence over the testator. 5. At the commencement of the year the health of the said E. D. became greatly impaired, and his intellect enfeebled. "While the said E. D. was in that state, the defendant proposed to the saidE. D. that he the said E. D. should sell the said messuage to him the defendant in consideration of the sum of £ to be paid by him. 6. The plaintiff's husband at the time of such last-mentioned trans- action, was of the age of 70, and he was, from his enfeebled state of body and mind, altogether incapable of forming a correct judgment with respect to any matter of business. 7. For the purpose of carrying the said proposal into effect, the defen- dant caused a memorandum in writing, dated, &c., to be prepared, and which was prepared by a friend of tha defendant's, whereby it was agreed, &c. [Sire state memorandum.] 8. The said E. D. had not, upon that occasion, any professional as- sistance or advice, and the said agreement was not nor was any draft or copy thereof previously to the execution thereof, perused by or by any one on behalf of the said E. D., nevertheless the said E. D., under the undue influence of the defendant, executed the said agreement, and the same was taken possession of by the defendant, and is now retained by him, 9. The alleged pecuniary consideration for the execution of the said agreement by the said E. D. was never paid to him by the defendant or by any person on his behalf, but a receipt or an acknowledgment in writing to that effect was endorsed on the said agreement. 10. It is however alleged by the defendant that subsequently to the execution of the said agreement, he advanced certain sums to the plaintiff. 11. Shortly after the date of the said agreement the said E. D. died, and the said B. D. at and for some time previously to the date and exe- cution of the said agreement, was wholly confined to his house, and was then in so weak a state, both of body and mind, as to be unable properly to transact any matter of business. 66 Plaints. IS. The said B. D. died, without having ia any manner revoked or altered his said vpill, and the same was duly proved by the plaintiff 13. The plaintiff submits that she is entitled to have the said agree- ment delivered up to her ; and she and her agents have accordingly made divers requests to the defendant to deliver up the same, but the defendant refuses to comply with such requests, and he alleges that he did not take any advantage of the said E. D. 14. The defendant well knew at the time when the said E. D. exe- cuted the said agreement, that he was wholly incapable of understanding any matters of business, and the • defendant took advantage of the con- dition of the said E. D., and fraudulently induced him to execute the said agreement. The Plaintiff therefore prays as follows : — 1. That the before-mentioned agreement, dated, &c., may be delivered up by the defendant to the plaintiff to be cancelled. 2. That the defendant may be ordered to deliver up possession of the said messuage to the plaintiff, and that he may be charged with an occupation rent in respect thereof. 3. That the plaintiff may have such further or other relief, as the nature of the case may require. This plaint is filed by [See Chap. III., Free. No. VIII.] No. XL. ALLEGATION IN A PLAINT FOK DELIVERING UP OR CONCEALING AN AGREEMENT, AND PRATER ADOPTED THERETO. D. The plaintiff has discovered, as the fact is, that the average monthly takings by the defendant for and in respect of the said business so car- ried on by him in the said beer shop and premises, did not during the period of three months immediately before the date of the before men- tioned agreement, exceed the sum of £ , and that his monthly takings never exceeded that sum. Plaints. 67 E. The representations which were so made by the defendant to the plaintiff as to his takings in respect of the said business, were false, and known to be so by the defendant, and the said representations were made by the defendant with the intent to deceive, and they did, in fact, deceive the plaintiff. F. Under the circumstances herein appearing', the plaintiff has applied to the defendant to deliver up the said duplicate copy of the agreement in the defendant's possession, to be cancelled, and to pay him the said sum of £ , and also the expenses which have been incurred by him, in consequence of his having been so induced to enter into the said agreement as aforesaid, but which the defendant refuses to do, and lie insists on the performance of the said agreement, and has filed a plaint in this Court against the plaintiff for the specific performance! of the contract. The Plaintiff therefore prays as follows : — A. A. That the said contract so entered into by the plaintiff for the purchase of the lease of the said messuage, called &o., and for the trade, goodwill, and possession thereof, may be rescinded, and that the agreement or duplicate copy thereof, in the possession of the defendant may be given up to be cancelled, the plaintiff being willing that the copy of the said agreement in his possession may also be cancelled. B. B. That the defendant may be decreed to re-pay to the plaintiff the sum of £ , so paid to him as a deposit as aforesaid, to- gether with interest thereon at the rate of, &c. C. C. That the defendant may also be decreed to pay to the plaintiff all the costs, charges, and expenses which he may have incurred or been put to in consequence of, or incidental to the said agree- ment, together with his costs in this suit. 68 Plaints. PLAINTS TJNDER 28 & 29 VICT. C. 99, SECT. 1, ART. 7. No. XLT. PLAINT FOR THE DISSOLUTION, AND WINDING XJP OF A PARTNEHSHIP, AND FOR THE APPOINTMENT OF A RECEIVER {x). Title and commencement, {ante, Chap. II., Tit. No. I.) 1 . By an indenture of partnership, dated the day of , and made and executed by and between the plaintiff of the one part and the defendant of the other part. The plaintiff and defendant entered into the mutual covenants therein contained. The material clauses of the said indenture were as follows : [Here state those clauses, showing the nature of the partnership business, and the others bearing upon the dissolution of it."] 2. In pursuance of the said indenture of partnership the plaintiff and defendant entered upon and commenced the said partnership, trade, and business, as from the said day of , and they are still carry- ing on the same. 3. The defendant since the commencement of the said partnership has been in the habit of receiving large sums of money, and of drawing cheques and bills of exchange on the partnership account, but the defen- dant wrongfully neglected to enter and did not enter such transactions in the partnership books. 4. On the day of , the plaintiff first discovered that the defendant had wrongfully drawn many bills, and had given many accep- tances, in the name of the partnership firm, not in respect of the partner- ship business, but for his own private purposes. 5. The defendant threatens and intends not only to wrongfully accept (x) By section 1, article 7, of 28 & 29 ship shall not exceed in amount or value Vict. e. 99, it is enacted that the County the sum of £-500, and by section 10 of the Court shall have and exercise all the power same act the proceedings thereunder should and authority of the Court of Chancery in be talien in the County Court within the all suits for the dissolution or winding up district of which the partnership business of any partnership in which the whole pro- was or is carried on. But see ante, p. I, perty, stocks, and credits of such partner- "and 30 & 31 Vict. c. 142, s. 1. Plaints. 69 other bills in the name of the partnership for his own private purposes, but also to collect and get in the debts owing to the said partnership, and wrong-fully to apply them to his own use. 6. The plaintiff therefore submits that under the circumstances here- inbefore stated, he is entitled to have the partnership dissolved by the court. 7. The accounts of the said partnership business were settled up to the day of ; and the result of such settlement was as follows : [here state the result.] 8. The whole of the property, stock, and credits of such partnership does not exceed in amount or value the sum of £500. The Plaintiff therefore prays as follows : — 1. That the said partnership may be declared to be dissolved as from the day of 2. That the accounts of the said partnership, and of the dealings and transactions thereof, may be taken under the direction of the court; and that in the taking of such accounts regard maybe had to the aforesaid settlement of the day of ■ ; and that the affairs of the said partnership may be wound up by the court. 3. That some proper person may be appointed to receive and get in tbe effects credits, and monies belonging and due to the said partnership (y), 4. That the defendant may be restrained by the order of this court from demanding, receiving, or obtaining possession of any debts, (y) To entitle one partner to an order, accounts ofthe partnership should lie taken upon motion for an injunction and a for which it may be necessary to resort to receiver, against his co-paitner, he mnst the court. show that he has a right to dissolve the A partnership not at will may be either partnership by notice under the deed, or voluntary or involuntary ; that is, it may show facts, which, if proved at the hearing, be the result either of an express agree- would entitle him to a decree for diesola- ment between the parties to it, or of their tion. Smith v. Jaques, i Beav. 503. acts. The agreement may be either writ- Partnerships are eitlier at will or not at ten or unwritten, and it may be for a term will. either certain or uncertain. If the agree- A partnership at will is dependant on ment be for a term uncertain at its coni- the will o/ the parties, and may be dissolved mencement, the term should be made by them, or either of them, on notice to determinable after the expiration of a de- the other, without the aid of the court, finite period, by a notice from either party Bubject however to this, that proper of an intention to dissolve the partnership 70 Plaints. monies, or property of or belonging to the said partnersiiip, and from signing, making, accepting, or indorsing any promis- sory note, or bill of exchange, in the name of the partnership firm, or so as to render the plaintiff liable. And that out of the share of the defendant in the produce of the partnership property, what shall be found due to him in respect of any liabilities or monies of the partnership so improperly applied by the defendant, may be made good, and all proper directions for the purpose aforesaid may be given. 5. And that the plnintiff may have such further or other relief as the nature of the case may require. The Plaint is filed by (See ante, Chap. III., JPrec. JN'o. VIII.) It follows that a partnership formed on an agreement in writing, whether by deed or otherwise, may be dissolved. 1. By the means prescribed by the agreement. 2. By any means not inconsistent with the provision of the agreement, unless indeed a 11 the partners consent to waive them, and to dissolve the partnership accordingly. The other groands on which an ordinary partnership, based on an agreement in writing, may therefore be dissolved, are — 1. The impossibility of going on with the partnership in consequence of (o) The hopeless state of the partner- ship business ; (i) The insanity of one of the part- ners; (e) The misconduct of either, and the destruction thereby of the mutnal confidence of the partners in each other ; {d) The transfer of a partner's interest in the concern ; (e) The happening of some event which would render the continuance of the partnership illegal. [Lindley on Partnership, vol. 1, p. 178, ed. 1860 ; and see also, ibid. p. 186, " on the effect of a transfer of the interest, and the death of a partner."] 2. It would seem also that misrepresen- tation by a partner, as to the amount of his profits, previous to the partner- ship, is a ground on which the court will decree a dissolution of the part- nership. Chauncey v. Knowles, 29 L. J., Ch. (N. S.) 95. It has been said that, notwithstanding the dissolution of a partnership, (whether we presume by decree or otherwise,) it continues to exist so far as may be neces- sary for the winding up of its business. But it has also been thought that that du- ration should be limited to this, that not- withstanding the dissolution, a partner has implied authority, to bind the parties separately, that dissolved partnership (and we presume their partnership estate), so far as may be necessary, to liquidate exist- ing demands, and to complete transactions begun, but not finished at the time of the dissolution. [Lindley on Partnership, vol. 1, pp. 332, 333.] Unless partners have expressly agreed to the contrary, any event which would have the effect of introducing a new partner into the partnership operates as ipso facto a dissolution of it. Either therefore ' the transfer of a partner's share in the partner- ship by death ; or the taking of it in exe- cution under a fi fa., or liis Bankruptcy, (or his Insolvency) , or if the partner be a female, her marriage operates as a disso- lution. [Lindley on Partnership, vol. 1 , p. 187.] A plaint by a partner for a dissolution, and winding up of a partnership, should pray for a dissolution of it, and for an ac- count of the partnership transaction ; set- tled accounts (if any) should not be dis- turbed ; and it should also pray for an in- junction, and a receiver, to restrain the defendant partner or partners (as the case may be) from executing securities in the name of the partnership, and from receiv- ing the partnership assets. Plaints. 71 No. XLII. PLAINT BY ONE OF TWO LATE PARTNERS, FOR AN ACCOUNT, AND WINDING UP OP THE PARTNERSHIP. Title and commencement, (ante, Chap. II., Tit. No. I.) 1. In the month of the plaintiff and the defendant became partners in the business of , at , within the jurisdiction of this court. 2. The capital stock of the said business comprised , acquired by the said co-partners, with and out of the joint monies of the said copartnership. 8. No articles of partnership, or any agreement in writing for the same were ever made or executed by the said co-partners or either of them, with reference to the said business. 4. On the day of , the said partnership was duly dis- solved by notice to the said defendant from the plaintiff. 5. No settlement or statement of the accounts of the said partnership has been made or come to between or by the plaintiff and defendant or either of them. Since the said dissolution thereof the plaintiff has made frequent applications to the defendant to come to a final settlement with respect thereto, but the defendant has always refused and still refuses to do so. 6. The whole property, stock, and credits of the said partnership does not exceed in amount or value the sum of £500. The plaintiff therefore prays as follows : — 1. That an account may be taken of the dealings and transactions of the plaintiff and defendant as such partners as aforesaid in the said business, from the commencement to the dissolution thereof, and that the affairs thereof may be wound up under the direction of the court. 2. That the Defendant may be directed to pay to the Plaintiff, what, if any thing, shall, upon taking such account, appear to be due 72 Plaints. from him to the plaintiff, on the plaintiff being ready and willing, and hereby offering to pay to the defendant what, if any thing shall appear to be due from the plaintiff to him. 3. That for the purposes aforesaid all necessary and proper directions may be given. 4. That the plaintiff may have such further or other relief as the nature of the case may require. This Plaint is filed by {See ante, Cltap. III., Free. No. VIII.) Plaints. 73 No. XLIIa. PLAINT IN A PARTITION SUIT UNDER THE 31 & 39 VICT. CH. 40, THE PARTITION ACT, 1868, SECT. 12 (a). Title and commencement, (ante, Chap. XI., JVb. I.) 1. By a deed, dated, &c., and made, fESS, DE BENE ESSE. Title, (as in form, ante, No. LXIV.) Upon the application of the plaintifi" lor of counsel for tlie plaintiff,] who alleged that the plaintiff filed his plaint in the County Court of ag-ainst the above-named defendants, that of is 70 years of ag-e, and is in an infirm state of health, [or that is the only person living who can give evidence in support of the several statements contained in the plaintiff's said plaint,] as by the afiidavit of filed on the day of appears ; and, upon reading the said afiidavit, it is ordered that the plaintiff be at liberty to examine the said as a witness for him in this suit, de bene esse, and that be appointed examiner of the said Seton on Decrees, Srd ed., vol. 2, p. 1236. No. LXXXIX. ORDER TO APPOINT EXAMINER. Title, (as in form, ante, No. LXIV.) Upon the application of the plaintiff, and upon hearing counsel (or the attorney) for the plaintiff, and counsel (or the attorney) for the defendant, and upon reading the affidavit of, &C. filed the day of it is (by consent) ordered that Esquire, (or the registrar of the County Court of ) be appointed examiner for the purpose of taking the examination of a witness in this suit, residing at [or if two examiners be appointed,] that A. and B. be appointed examiners for the purpose of takinc the examination of witnesses in this suit ; and that the said A. do alone act as such examiner, unless he is by illness, or other sufficient cause, incapacitated from acting, in which case the said B. is alone to act as such examiner.) Seton on Decrees, Srd ed., vol. 2, p. 1236. 108 Evidence. Forms. No. XC. DEPOSITIONS BKFOHE SPECIAL EXAMINER («). In Equity. Title (as in form, cmie, No. LXIV.) Depositions of witnesses produced, sworn, and examined on the day of 1 at the house of situate at in the county of Before me, A. B., A Special Examiner appointed hy an order in the ahove cause, hearing date the day of C. D., of in the county of a witness called on the part and behalf of the plaintiff (or defendant), sworn the day of saith as follows : — I am, &c. [If the witness is cross-examined, the examiner inserts in the depo- sition'], cross-examined on behalf of saith [7/" the witness is re-examined, in like manner the examiner inserts in the deposition], re-examined on behalf of saith [The witnesses sign their depositions in the presence of the parties. The examiner signs each sheet of the depositions, and should authenticate all alterations ; the most convenient mode of doing this- is by placing his initials in the margin opposite the alterations.] The following certificate should be written at the end of the depo- sitions : — The evidence contained on this and the preceding sheets of paper was taken by me, and afterwards read over to the witnesses with the alterations opposite (o) Form of declaration under the C. truly affirm and declare, that I shall true L. P A-, and afliimation : — answer make to all such questions as shall I, A. B., being one of the people be asked me without favour or affection to called Quakers, do solemnly, sincerely and either party, and therein I shall speak the Evidence. Forms, 109 to which my initials are placed in the margin, and signed by them in the presence of the parties attending. The depositions are written on paper, and when completed should be sealed up and transmitted hy the examiner to the registrar. The examiner should himself read the depositions, and not give them to the witnesses to read. No. xcr. DEPOSITION BEFORE SPECIAL EXAMINER OF A WITNESS CROSS- EXAMINED ON HIS AFFIDAVIT. In Equity. Title (as in form, ante, No. LXIV.) Depositions of witnesses produced, sworn, and examined on the day of at the house of situate at in the county of Before me, A. B., A special examiner appointed by an order in the above cause bearing date the day of C. D., of in the county of a witness sworn the day of and cross-examined on his affidavit, filed in the above matter, on the day of on behalf of saith : — truth, the whole truth, and nothing but the cerely and truly affirm and declare that I truth. shall true answer make to all such qaes- I, A. B., do solemnly, sincerely and truly tions as shall be asked me without favour affirm and declare that the taking of any or affection to either party, and therein I oath is, according to my religions belief shall speak the truth, the whole truth, and unlawful. And I do also solemnly, sin- nothing but the truth. K i! 110 Evidence. Form». No. XCII. AFFIDAVIT, FOHM OF (6). Title (as in form, ante, JVb. LXIV.) Affidavit filed on the part of by of his solicitor. Filed day of I, S. J., of (fee. (address and description) make oath and say, (or if more than one deponent, sai/,) We, S. J. of &c. and B, L., of (fee. severally make oath and say : — 1. I, S. J. say that I was present at an interview between the plaintiff and defendant at ifec. on (fee. when 2. And I, R. L., say (fee. [Here state the facts succinctly, numbering each distinct paraffraph]. 3. The facts herein deposed to, are within my own knowledge, and my means of knowledge appear from this my affidavit. Sworn at in the county of on the day of Before me, A Commissioner to administer Oaths in Chancery in England. S.J. -» R. L. / (6) As to the form of the affidavit. It land, or before a London commissioner to diould be expressed in the first person, and administer oaths in Chancery, or a corn- state the deponent's age, occupation and missioner for taking affidavits in any sn- residence, also what facts deposed to are perior court; (such commissioners, respec- withln his own knowledge — what facts de- tively, not being registrars,) or before a posed to are deiived irom other sources justice of the peace, of information, and what those sources are. The 15&16 Vict. c. 86, s. 23, applies Co. Co. Orders in Equity, Order 14, R. 1. to affidavits sworn in any part of the As to filing affidavits with any erasure or United Kingdom other than England and interlineation, see R. 6, of that order. Wales, or in one of the Channel Islands, or Affidavits may be sworn before a judge in any foreign possessions of this country, or registrar of a county court without the and the 18 & 19 Vict. c. 42, s. 11, to affi- payment of a fee, or before a commissioner davits sworn in foreign coantries. to administer oaths in Chancery in Eng- Evidence. Forms. Ill No. XCIII. AFFIDAVIT FOR OBTAINING AN ORDER, APPOINTING A GUARDIAN AD LITEM, OF AN INFANT, WHO IS A DEFENDANT, OR UPON WHOM IT IS NECESSARY TO SERVE NOTICE OF A DECRETAL ORDER. Title (as in form, ante, .2Vb. LXIV.) I, A. B., of make oath and saj, (1.) that C. D., of (oj- the above-named defendant, C. D.), is an infant of the age of years, or thereabouts, and of is the father {or ) of the said C. D., and has not any interest in the matter in qixestion in this suit adverse to the said C. D. (2.) The said is, as I believe, a proper person to be appointed guardian of the said C. D., by whom to defend this suit (c). Sworn &c. A. B. No. XCIV. AFFIDAVIT AS TO BOOKS AND PAPERS. Title (as in form, ante. No. LXIV.) I R. G., of &c., one of the above-named defendants, make oath and say :— 1. Neither I nor any person or persons for my use, or to my knowledge or belief, or with my privity or consent, have or hath, or ever had, in mine or his or their custody or power, any deeds, books, papers, or writings relating to the matters in question in this cause, save and except the several books, letters, and copies of letters, papers, and writings men- tioned and contained in the first schedule hereunder written, and save and except the books, papers, and writings mentioned and comprised in (c) In Chancery the solicitor uSuilly makes the affidavit. 112 Evidence. Forms. the second schedule hereunder written, which I delivered to of hy the direction of the solicitor for who was one of the under the above referred to, in the month of ; and also save and except the books, papers, and writings in the custody of the said the other above- named defendant, of which I have no list. Sworn, &c. E. G, The first Schedule referred to in the above-written affidavit. 19th Sept. 18 . Indenture of this date made, although a receiver vr&s not prayed for by the plaint. Co. Co. Ords. in Eq., Ord. 5, R. 3. The following directions, with respect to the several subject matters to which the decretal order or decree relates, must be attended to. Where any deed is ordered to be prepared and executed, it must be stated by what party it is to be prepared, and to whom it is to be sub- mitted for approval. Co. Ords. in Eq., Ord. 5, R. 2. Where real property is ordered to be sold, it must appear who is to have the conduct of the sale (a), and by whom the conditions and con- tracts of sale and the abstract of title are to be prepared, and where any conditions or contracts are ordered to be settled by a conveyancing counsel, the name of such counsel must be state. Co. Co. Ords. in Eq., Ord. 5., R. 4. Where any personal property is ordered to be sold, the same mast be sold, under the superintendence of the high bailiflF, by public auction, unless the court should otherwise order. Co. Co. Ords. in Eq., Ord. 5., R.6. Where any accounts or inquiries are ordered to be taken or made, or any acts are to be done by the registrar, high bailifif, or by the parties, a day must be named by which all such acts shall be done, and accounts and inquiries completed. Co. Co. Ords. in Eq., Ord. 5, R. 6. A day must (a) The conduct of a sale directed in a Ch. 49. And where the plaintiff obtained suit in Chancery is usually given to the leave to bid at the sale the conduct of it plaintiff. Knott v. Cottee, 27 Beav. 33 ; was given to the defendant. Domville v. but it will also be given to a person other Berrington, 2 Y. & C. 723. See also than the plaintiff when it is shown that Seton on Decrees, vol. 2, 3rd ed. p. 1184, such course would be beneficial to the et seq. The solicitor of the plaintiff having parties interested in the property. Dixon the management of the sale is to be con- T. Pyner, 7 Hare, 331 . In a suit by a sidered, as between the vendor and pur- second mortgagee, V. C. Kindersley gave chaser, to be the agent of all the parties the conduct of a sale, under 15 & 16 to the suit. Dalby y . PuUen, \ VMBi. k Vict. c. 86, s. 48, to the first mortgagee, Myl. 296. Hewitt v. Sanson, 28 L. J. R. (N. S.) Decrees. 119 aho he named, and not less than fourteen days ajter that day, on which the registrar is to certify the result of the accounts and inquiries, and what is to be done under such decretal order, and on what day the cause is to he further heard, and, if practicable, a final decree made. Co. Co. Ords. in Eq., Ord. 5, R. 6. The orders do not point to the preparation of any minutes of a decree before drawing up the decree itself; and we may hope that the terms of the decree which the judge may pronounce will be sufficiently clear and explicit, so as to prevent the necessity of the course adopted in the Court of Chancery being followed, of attendances before the registrar respecting the terms in which the decree ought to be framed after the court has given its judgment. It is to be observed that, in cases where an order is made for pay- meat of money, or for the performance of any other act, it is necessary to fix a limited time for compliance with the order ; Co. Co. Ords. in Eq., Ord. 5, R. 6 ; Ord. 16, R. 9. [/See further as to this in the chapter on " Enforcement of Decrees," post.] As to adding to a decretal order after it is drawn up, it may be as well to observe that the County Court, in suits in equity, for the purpose of giving effect to a decree, where an account is directed to be taken under the 15 & 16 Vict. c. 86, s. 54, has the same power which the Court of Chancery has after the decree has been made and drawn up. It conse- quently has power to give special directions as to the mode in which the account directed should be taken ; but no power exists to make any substantive alteration in the decree without a re-hearing. As for instance, where a decree had been made in a suit against a mortgagee in possession, but there was no direction to take the accounts against him with rests, it was held, that the court had no power to add a direction to take the accounts with rests. Nelson v. Booth, 3 De G. & J. 119. FINAL DECREE. When a decree does not adjourn the further consideration of a cause, it may be said to be a " final decree." Of this nature is a decree dismissing the plaintiff's plaint. So where the case is brought to a hearing in such a shape as to enable the court to determine the question or questions in litigation, without 120 Decrees. any further inquiries or investigation being necessary. And by Co. Co. Ords. in Eq., Ord. 9, the registrar is directed, when the court has determined all the questions raised between the parties, as soon thereafter as conveniently may be, to draw up a final decree in accordance with the judgment of the court, and seal and file the same. ENDOHSEMENT ON DECREES. On every decree there must be the following endorsement : "Take notice that unless you obey the directions contained in this order, obedience thereto will be enforced in such manner as the law provides." And at the foot of every decree or other process of the court, there must be the following memorandum: "Hours of attendance at the office of the registrar {place of office] from ten till four, except on [here insert the day on which the office will be closed] when the office will be closed at one." HEGISTERING OF DECREES. By the 24th Rule of Co. Co. Ords. in Eq., Ord. 23, it is directed that a note of every decretal order or final decree must be transmitted to the Eegistrar of County Courts Judgments, in London, in order that he may register the same. No. XCVIII. DECRETAL ORDER; ADMINISTRATION SUIT; CREDITOR'S SDIT(a). In Equity. In the County Court of holden at on the day of 186 . In the suit of Upon the hearing this day of Mr. for the plaintifF, and upon the hearing of Mr. for the defendant, (a) In a suit by a creditor no ac- of legacies, and no inquiry, in case of in- count, in tlie case of a will, is directed testacy, is directed as to the next of kin of Decrees. 121 It is ordered that the following accounts and inquiries be taken and made ; that is to say ; — 1. That an account be taken of what is due to the plaintiifs, and all other the creditors of A., deceased, the testator [or intestate] in the plaint named. 2. An account of the testator [or intestate's] funeral expenses. 3. An account of the testator's [or intestate's] personal estate come to the hands of the Defendants B. and C, the executors of his will, [or the administrators of hk effects,] or to the hands of either of them, or to the hands of any other person, by the order or for the use of the said defendants. 4. An inquiry what parts (if any) of the testator's [or intestates] personal estate are outstanding- and undisposed of, and let the same be got in or sold, [if, and cts the jndge shall direct.] 5. And it is ordered that on or before the day of the said defendants do bring in to the registrar an account of the testator's [or intestates] personal estate at his death, and of his funeral expenses and debts. 6. And it is further ordered that the testator [or intestate's] personal estate be applied in payment of his debts and funeral expenses, in a due course of administration. 7. And it is further ordered, that, for the purpose of the inquiries hereinbefore directed, the registrar shall advertise in the newspapers according to the practice of the court, or shall make such inquiries in any other way which shall appear to the registrar to give the most useful publicity to such inquiries. 8. And it is ordered, that the above inquiries and accounts be made and taken, and that all other acts ordered to be done be completed, before the day of 186 , and that the registrar do certify the result of the inquiries, and the accounts, and that all other acts ordered are completed, and have his certificate in that behalf ready for the inspection of the parties on the day of 186 . 9. And, lastly, it is ordered that this suit stand adjourned for making a final decree, to the day of 18 the testator : at least, that is the rule of the the purpose of obtaining a distribution of court of Chancery. the surplus amongst the next of kin, the If, therefore, a complete administration suit should be instituted by one of the is sought of a testator's estate, so that the next of kin. legacies may be satisfied, and the residue In the precedent in the text it is distributed amongst the residuary legatees, assumed that the personal estate is suifi- the suit should be instituted by a legatee, cient for payment of debts, and thai there and, in the case of an intestate's estate, for is not any real estate. 122 Decrees. No. XCIX. DECREE TO ADMINISTER PERSONAL AND REAL ESTATES OP TESTATOH ON PLAINT BY A CREDITOR AGAINST ADMINISTRATOR. Title and commencement, (as in form, ante, No. XCVIII.) [Usual accounts of persmml estate, as in last precedent, 'pars. 1-5.] And let the testator's personal estate be applied in payment of his debts and funeral expenses in a due course of administration. And in case the testator's personal estate shall be insufficient for the payment of his debts and funeral expenses, let the following further inquiries and accounts be made and taken (that is to say), — A. [If lieirship not proved at the hearing.'\ An inquiry, who was the heir-at-law of the intestate living at the time of his death, and who is now such heir-at-law ? B. An inquiry, what real estate the testator was seised of or entitled to at the time of his death ? C. An inquiry, whether any, and, if any, what incumbrances, affect the testator's real estate, or any and what parts thereof ? D. [If sale directed.'] An account of what is due to such of the incum- brancers, if any, as shall consent to the sale hereinafter directed in respect of their incumbrances ? E. An inquiry, what are the priorities of such last-mentioned incum- brancers ? F. And let the testator's real estate, or a sufficient part thereof, to make good the deficiency of his personal estate, be sold, with the approba- tion of the judge, free from the incumbrances, if any, of such of the incumbrancers as shall consent to the sale, and subject to the incum- brances of such of them as shall not consent. G. And it is ordered, that shall have the conduct of the sale of the real estate, and shall prepare the conditions and contracts of sale, and the abstracts of title, subject to the approval of the regis- trar ; and that in case any doubt or difficulty shall arise, the papers shall, with the like approval, be submitted to Esquire, to settle. Decrees. 1 33 H. And let the money to arise by the sale of the testator's real estate, or of such parts thereof respectively as are sulgect to the incumbrances, if any, of such of the incumbrancers as shall consent to the sale, be applied, in the first place, in payment of what shall appear to be due to such last-mentioned incumbrancers respectively, according to their priorities, and be in the meantime paid into court (a). I. And it is ordered, that, for the purposes, &c. [Here follow Nos. 7, 8, 9, of form, No. XCVIII.] No. C. DECREE ON PLAINT BY ' A SPECIALTY CREDITOR TO ADMINISTER REAL AND PERSONAL ESTATE; INQUIRY AS TO MANAGEMENT OF FARM, AND PAYMENTS MADE BY EXECUTORS BEFORE SPE- CIALTY DEBTS. Title and commencement, (as in form, ante, No. XCVIII.) 1. Account of what is due to plaintiffs, and all other specialty creditors of testator {then Jhlloro paragraphs 2, 3, 4, 5, as in form, No. XCVIII.) 6. And let the testator's personal estate be applied in payment of what shall appear to be due to the plaintiff, and all other specialty creditors, in a due course of administration ; and in case the testator's personal estate shall be insufficient to pay the specialty debts, let the following accounts and inquiries be made and taken. 7. An inquiry, what freehold and copyhold estates the testator was seised of or entitled to at the time of his death ? 8. An inquiry, whether any, and if any, what incumbrances, affect the testator's said real estate, or any, and what part thereof, and the priorities of such last-mentioned incumbrances? (a) By sect. 45 of the 19 & 20 Vict. The judge may, however, direct any c. 108, all money payable under, any money paid into court to be invested in judgment of the court is to be paid into Consolidated Bank Annuities, or in Bank court. Stock, or East India Stock (22 & 23 Vict, By sect. 26 of 30 & 31 Vict. c. 14, it is c. 35; 23 & 24 Vict. c. 38), " or any enacted, that any money paid into court in " securities, the interest of which is or sha,ll equitable proceedings shall, unless other- " be guaranteed by parliament, to the same wise ordered by the court, be invested by " extent and in the same manner as he may the registrar of the court in his name as " investsuch trustfund in such securities as registrar, within forty-eight hours of its "aforesaid," (30 & 31 Vict. c. 132). See payment into court, in the post office Seton on Decrees, p. 64. Re Warde, 2 J. savings bank established in the town in & H. 191. Vidler v. Parrelt, 12 W. which the court is held. See also Co. Co. Rep. 976; and Montifiord i. Guedalla, Ordjs. in Eq., Ord. 17, R. 2. M. R. W. N. (Ch.) March 21, 1868, p. 87. L 124 Decrees. 9. An inquiry, whether any and what sums of money have been pro- perly applied by the defendants B. and C, the executors, m stocking, cropping, managing, and cultivating the farm in the testator's will men- tioned, and in the support, maintenance, and education of his children, as by his said will directed ? 10. An inquiry, whether any and what simple contract debts of the testator have been paid by the defendants the executors, and whether any and which of such debts as have been so paid were paid previously to their having notice of the bond in the plaint mentioned ? such last- mentioned inquiries to be without prejudice to any question. 11. And it is further ordered, [here follow paragraphs 7, 8, 9, as in form. No. XCVIIL] No. CI. ACCOUNTS WHERE TESTATOR WAS INTERESTED IN PARTNERSHIP BUSINESS. G. Account of what is due to testator's separate creditors? H. An account of what was due at the death of the testator from the partnership of to the creditors of the said partnership, and what is now due in respect of such debts? No. CII. DECLARATION THAT TESTATOr's SURPLUS ESTATE, AFTER PAYMENT OP SEPARATE DEBTS, WAS IN EQUITY LIABLE TO PARTNERSHIP DEBTS. 4. Declare that the surplus of the testator's estate, after payment of his funeral and testamentary expenses, and his separate debts, was liable in equity at the time of his death to the joint debts then due from the testator, and in respect of the partnership theretofore carried on by them under the firm of but without prejudice • to the liability of the said thereto as between himself and the testator's estate. Decrees. 125 5. And let the testator's estate be applied in payment of bis separate debts in a due course of administration, and then in payment of the joint debts of the partnership (S). No. cm. DECLARATION IN A DECREE THAT REALTY IS PRIMARILY LIABLE FOR DEBTS. And it appearing by the will of the testator that the debts of the testator are exclusively charged on or .payable out of his real estates, let the same, or a sufficient part thereof, be sold, [here follow F. G. H. of form ^0. XCIX.] No. CIV. DECREE FOR PAYMENT OF PLAINTIFF'S DEBT ON ADMISSION OF ASSETS. 1. And the defendant B., the executor of the will, [or administrator of the effects] of A. the testator [or intestate] in the plaint named [by Ms counsel or solicitor] admitting assets of the testator [or intestate] or [Jbr the purposes of this suit, if debt admitted]. 2. And that the testator [or intestate] was at the time of his death indebted to the plaintiff as in the plaint mentioned (if amount admitted); and that the sum of £ is now due to him for principal and interest in respect of his debt. 3. Let the defendant B., within one month from this time pay to the plaintiff C. the said sum of £ with subsequent interest on the principal sum of £ part thereof, at the rate of £ per cent, per annum, from the day of to the day of payment, less income-tax. 4. And [if costs given,] let the defendant B. pay to the plaintiff C. Lis costs of this cause, to be taxed by the registrar, in case the parties differ. 5. Let all parties to this suit have liberty to apply to the Court, as they may be advised, 6. [Jf debt or amount not admitted, then say,] let an account be taken of what is due to the plaintiff for principal and interest in respect of his debt in the plaint mentioned. 7. And, lastly, [as in No. XCVIIL, p. 9]. (J) See Seton on Decrees, 3rd ed., p. 551, et se.q. L 2 126 Decrees. No. CV. FINAL DECREE WHERE ASSETS SUFFICIENT, In Greditoi'i Suit. Title and commencement (as in form, ante, No. XCVIII.) Upon hearing, &o. and upon reading the certificate of the registrar, dated, &c. it is ordered, — 1. That the registrar do tax the costs of the plaintiiF and defendants of this suit, including in the costs of the defendant their costs, charges, and expenses of the defendants (as executors) properly incurred, not being costs of suit. 2. And it is further ordered that subsequent interest be computed on the debts of the deceased, mentioned in the schedule to the registrar's certificate, at such rate as the same respectively carry. 3. And let the amounts due to the several creditors therein named, for principal and interest, in respect of their debts, and the total amount thereof to be certified [or let the amount of such subsequent interest from the date of the said certificate to the day of payment, and the amounts due to the several creditors for principal and interest in respect of their debts, and the total amount thereof, to be verified by affidavit, [be ascertained.] 4. And it is ordered, that out of the money in court to the credit of this suit, the said costs, and costs, charges, and expenses, be paid as follows, that is to say, — the costs of the plaintiff to Mr. his attorney, and the costs of the defendant to Mr. his attorney. 5. And it is ordered, that the several amounts appearing by the aforesaid aflSdavit to be due to the several creditors therein named, be paid to them respectively, or to the legal personal representatives of such of them as may be dead, or to any one of such representatives, if more than one, and in case of partnership, to any one of the partners. 6. And it is ordered, that the residue of the said money, subject to legacy duty, be entered in the cash book and ledger of equitable proceedings in trust in this suit, to an account^Jio be entitled " the legatee?' fund," (or as the case may be.) 7. With liberty for any parties interested to apply. Decrees. 127 No. cvr. PINAL DECREE IN AN ADMINISTRATION SUIT BY A CREDITOR, WHERE THE ASSETS ARE NOT SUFFICIENT FOR PAYMENT OF DEBTS. Upon the hearing- this day of the plaintiff and defendant, and upon hearing the registrar's certificate, dated the day of 186 read, and it appearing that the intestate's personal estate is not sufficient for the payment of his debts in full. 1. Let the registrar of the said court tax the costs of the plaintiff and defendant in this suit, and let the amount of the plaintiff's costs, when so taxed, be paid to him by the defendant out of the sum of £ the balance by the said certificate found to be due from him on account of the personal estate of the intestate. 2. Let the defendant retain the amount of his said costs, when so taxed, out of the residue of the said sum of £ 3. Let the balance of the said sum of £ after payment of plain- tiff's and defendant's costs as aforesaid, be apportioned among the creditors of the intestate named in the first schedule lo the said certifi- cate, in proportion to the amounts which are certified therein to be due to them respectively ; and let the several amounts so apportioned be paid by the defendant to such creditors, or to the legal personal representa- tives of such of them as may be dead. 4. And any of the parties are to be at liberty to apply to this court as they shall be advised. No. CVIL SPECIAL DIRECTION FOR APPORTIONMENT, WHERE THE ASSETS MAY BE INSUFFICIENT. 1. And let thereout also the several amounts which shall be certified [or appear by such qffidavif] to be due to the specialty creditors of the testator named in the schedule to the said certificate in respect of their debts and interest be paid to them respectively, or the legal personal representatives of such of them as may be dead. 2. But in case the residue of the said money, and any interest, shall not be sufficient to pay what shall be certified \or appear by stock affidavif] to be due to such specialty creditors, let the same be appor- tioned among such specialty creditors in proportion to the amounts which shall be certified to be due to them, and let the amounts so 128 Decrees. apportioned be certified [or verified by affidavit] ; and let the same be paid to such specialty creditors, or their legal personal representatives as aforesaid. 3. And in case there shall be any residue of the money and interest after the payments aforesaid, let the same be apportioned among the simple contract creditors of the testator [or intestate] named in the schedule to the said certificate, in proportion to the amounts which shall be certified [or appear by such affidavit] to be due to them respectively. 4. And let the several amounts so apportioned be certified [or verified by affidavit]. 5. And let the same be paid to such simple contract creditors, or to the legal personal representatives of such of them as may be dead. [See Seton on Decrees, 3rd ed., vol. 1, p. 141. No. CVIII. DECRETAL OEDER IN AN ADMINISTRATION SUIT BY A LEGATEE. 1 . An account of the testator's debts. 2. An account of the funeral and testamentary expenses. 3. An account of the personal estate of the deceased come to the hands of the defendants, or either of them, or to the hands of any other person or persons by their order, or the order of either of them, or for their use or the use of either of them. 4. An inquiry, what part (if any) of the personal estate of the deceased is outstanding and undisposed of. 5. An account of the legacies given by the testator's will. 6. And it is further ordered that the defendant do on or before the day of 186 , pay into court the sum of £ admitted to be in his hands. 7. And it is further ordered, that on or before the day of the plaintiff and defendant do bring in to the registrar an account of the testator's personal estate at his death, and of his funeral and testamentary expenses and debts, and also an account of the legacies given by the testator's will. 8. And it is further ordered, that the said testator's personal estate be applied in payment of his debts and funeral expenses in a due course of administration, and then in payment of the legacies (if any) given by his will. 9. 10, & 11 [as in form. No. XCVIII./ paragraphs 7, 8, and 9.] Decrees. 129 No. CIX. DECRETAL ORDER IN A LEGATEE'S SUIT, WITH SPECIAL DIRECTIONS IN CONSEQUENCE OP THE TESTATOR'S BUSINESS HAVING BEEN CARRIED ON BY HIS EXECUTORS. Upon the hearing, this day of of Mr. for the plaintiff and Mr. for the defendant, and upon read- ing the probate of the will of W. H., the testator, the affidavit of &c., and upon seeing the exhibit, marked A., &c., and upon hearing the evidence of the plaintiff. It is ordered that the following accounts and inquiries be taken and made, that is to say : — 1. An account of the debts, &c., and personal estate of the testator W. H., deceased. 2. An account of the personal estate of the testator come to the hands of the defendants or either of them, or to the hands of any other person or persons by their or either of their order, or for their or either of their use. 3. An account of the legacies given by the testator's will. 4. That an inquiry be made, whether the trade in which the testator was engaged, or any other and what trade was (c) continued or carried on after his decease by, or by the direction of the defendants, or either and which of them, and during what period and under what circum- stances, and whether any and what part or parts of the testator's stock- in-trade or of his other personal estate, and to what amount or respective amounts or value was or were employed, and by whom, for the purpose of carrying on the said trade, or for any and what other purpose and under what circumstances? 5. And it is ordered that in making the said inquiry, &c. and in taking the account of the personal estate of the testator, such part of the testator's estate as may have arisen from interest which has accrued since the testator's death from profits made in carrying on the said trade, be distinguished. (c) Except for the purpose of winding- will, or under the direction of the court, up the trade of their testator, executors are Collinson v. Lister, 20 Beav. 2.36. Garrett not justified in carrying it on after his v. iVoJZe, 6 Sim. 604, and see Williams on death; unless authorized to do so by the Executors, 6th edition, pp. 1654-5. 130 Decrees. 6. An inquiry, what parts (if any) of the personal estate of the de- ceased are outstanding and undisposed of. 7. And it is further ordered, that the defendants respectively do pay into court the balance of all sums of money which shall he found to be due from them in taking the account of the personal estate of the testator within fourteen days after the registrar shall have made his certificate, 8. And that the registrar do sell the personal estate of the testator and the goodwill of his business. [Here follow pars. 8 and 9 of form No. XCVIIL] No. ex. ACCOUNTS AND INQUIRIES IN A LEGATEE'S SUIT AS TO PARTNERSHIP ASSETS ; AND DIRECTIONS IN A SUIT BY EXECUTORS OF DECEASED PARTNER AGAINST SURVIVING PARTNER. 1. Account of all dealings and transactions between the testator in the plaint named, &c. and the defendant up to the death of the testator in respect of the partnership : any settled account not to be disturbed. 2. An account of the receipts and payments, dealings and transactions of the defendant in respect of the business of the said partnership sub- sequent to the testator's death. 3. An inquiry, what sums have been paid by the defendant to the plaintiffs as the testator's executors in respect of the said business, or the testator's capital therein since the testator's death : 4. An inquiry, what amount of capital the plaintiffs as such executors and the defendant respectively had at the testator's death, and have since from time to time continued to have in the said business : 5. An account of the profits of the said business since the testator's death : 6. An inquiry, whether the defendants C. D. and E. F. (the execu- tors) of the testator are subject to any and what liability in respect of any covenants or agreements contained in the lease of tlie premises in Decrees. 131 the plaint mentioned, and whether any and what provision ought to be made for the indemnity of the said defendants in respect of such liability : 7. An account of the stock-in-trade and other property and effects belonging- to the said partnership at the death of the testator, and of what the same now consist {d). No. CXI. SPECIAL INQUIRIES IN A LEGATEE'S SUIT AS TO TESTATOr's PARTNERSHIP BUSINESS. A. An inquiry, what was the amount of the testator's capital, credits, debts, and liabilities in the partnership business in the plaint men- tioned at the time of his death : B. An inquiry, whether any and which of the debts due to the said part- nership remain unpaid, anjd under what circumstances, and whether any and what step ought to be taken for recovering the same : C. An inquiry, what is the present amount of the capital, and of the credits, debts and liabilities of the said business, and how such capital has been derived : D. An inquiry, what sums of money have been paid by the defendant to the plaintiff or to any other person, &c., accordingly: E. An inquiry, whether it will be fit and proper and for the benefit of the infant plaintiff that the said business should be carried on, and in what manner and upon what terms : F. Let the defendant be charged with all money received by him, and allowed all sums properly paid or applied by him in carrying on the business under the direction in that behalf contained in testator's will in the plaint mentioned. (rf) See Seton on Decrees, p. 552. 133 Decrees. No. CXII. WILL PROVED. Declare that the will of the testator in the plaint named, dated, &c. is well proved, and.that the same ought to be established, and the trusts thereof performed and carried into execution ; and order and decree the same accordingly. No. CXIII. TRUSTEE HAVING DISCLAIMED, HEIR DECLARED TRUSTEE OF TRUSTS OF WILL. Declare that by the effect of the deed of disclaimer, dated the day of and executed by the trustees in the will named, the legal estate in the freehold property, of which the testator was seised at the time of his death, descended upon and became vested in the defendant as the heir-at-law of the testator in the plaint named, but as a trustee only for the purposes of and upon the trusts of the said will, and that he is bound to give effect thereto. No. CXIV. INQUIRY AS TO HEIRS OR THEIR REAL REPRESENTATIVES. An inquiry, who was or were the heir or co-heirs-at-law (or customary heirs or heir) of L. M., the testator in the plaint named, at the time of his death, and who is or are now the heir or co-heirs-at-law (or customary heirs or heir) or real representatives of the heir or co-heirs at law, (or customary heirs or heir) of the testator ? Decrees. 133 No, CXV. INQUIRY WHETHER TESTATOR MARRIED, AND WHETHER HE LEFT ANY WIFE, CHILDREN, OR ISSUE. An inquiry, whether the testator in the plaint named was ever married, and if so, when and to whom ; and whether he left a wife, or any and' what children him surviving, and when such children, if any, were respectively born, and whether any of them are since dead, leaving any and what issue ? No. CXVI. INQUIRY AS TO A TESTATOr's DOMICILE; WHAT HIS PROPERTY CONSISTED OF, AND WHETHER THE WILL PASSED THE SAME. A. An inquiry, where the testator was domiciled at the time of making his will and at the time of his death.? B. An inquiry, of what the testator's personal property at his place of domicile consisted, and whether the testator's will was sufficient to pass any and what part of such property, and to whom, and who, according to the law of the testator's place of domicile, would be entitled to such part of the testator's personal property as did not pass by his will (e) : (e) The disposition of the personal pro- nions where he had his domicile of origin, perty of a deceased person is governed by and no such will shall be held to be revoked the law of the place of his domicile; while or become invalid, or the construction that of realty is governed by the law of the thereof be altered by the subsequent change country where the property is situate. Doe of domicile. A man cannot, with reference v. Vardill, 5 B. & Cr. 438, 451. See to the law of succession of personal estate also Williamson Executors, 6th ed. p. 1401. at least, have two domiciles. Forbes v. Itshouldalsobeobservedthatby the24&25 Fortes, Kay, 341 ; S. C. 23 L.J. (N. S.) Vict. c. 114, 8. 1, wills of British subjects, Chan. 724. See also Lord v. Calvin, 4 made out of the United Kingdom, shall, as Drew, 366; Jarman on Wills, p. 19. And regards personal estate, be held to be well see also 24 & 25 Vict. c. 121, whereby it executed for the purpose of being admitted is enacted that no British subject dying in to probate, if made according to the form a foreigu state wherein Her Majesty shall required by the law of the place where the by convention agree that the provision or same was made, or by the law of the place that Act shall be applicable, shall acquire where such person was domiciled when a domicile unless resident there for one the same was made, or by the law then in year preceding his or her death, force in that part of Her Majesty's domi- 134 Decrees. No. CXVII. INQUIRY AS TO LEGATEE AND HIS CHILDREN OR REPRESENTATIVES' An inquiry, whether the legatee in the testator's will named is living or dead, and if dead, when he died, and what was his age at the time of his death, and whether he died intestate, or left any and what estate ; and whether he was married, and if so, when and to whom; and whether he had any children, and if so, whether he left any child or children him surviving; and who is, or are, his or their, legal personal representative or representatives ? No. CXVIII. INQUIRY AS TO HUSBAND, AND WIFE, AND CHILDREN. An inquiry, whether N. and B., his wife or any children of the said N. is or are now living or dead ; and if any of them are dead, when he or they respectively died ; and when such children were respectively bom ; and whether the said N. and B., his wife, and any and which of the children of the said N. were living at the death of the testatrix ; and if any of them have since died, who are their respective legal personal repre- sentatives ? No. CXIX. INQUIRY AS TO NEPHEWS AND NIECES AND REPRESENTATIVES. An inquiry, what children G. and L. the brother and sister of the tes- tator had living at the time of his death, or born since; and whether any and which of such children are now living, and if any of them are dead who are his or their respective real and personal representatives? No. CXX. INQUIRY AS TO CHILDREN; AND AS TO ANY APPOINTMENT, BY THEIR MOTHER. An inquiry, what children in the plaint named has had, and Decrees. 135 when they were respectively born, and whether they are all living, or if any of them are dead, when they respectively died; and whether the said is living or dead, and if dead, when she died, and whether she ever, and when, and in any and in what manner exercised the power of appointment contained in the testator's will. No. CXXI. INQUIRY AS TO CARRYING ON BUSINESS. An inquiry, whether it will be fit and proper and for the benefit of the persons interested in the testator's estate, that his business in the plaint mentioned should be carried on, and if not, what should be done in respect thereof? No. CXXII. FINAL DECREE IN AN ADMINISTRATION SUIT BY A LEGATEE. 1. It is ordered that the defendant do on or before the day of pay into court the sum of £ the balance by the said certificate found to be due from the said defendant on account of the personal estate of the testator, and also the sum of £ for interest, at the rate of £ per centum per annum, from the day of to the day of amounting together to the sum of £ 2. Let the registrar of the said court tax the costs of the plaintiff and defendant in this suit, and let tbe amount of the said costs, when so taxed, be paid out of the said sum of £ ordered to be paid into court as aforesaid, as follows, viz. : — A. The costs of the plaintiff to Mr. hissolicitor, and the costs of the defendant to Mr. his solicitor. B. And {if any debts are due,') with the residue of the said sum of £ after payment of the plaintiff's and defendant's costs as aforesaid, let the sums found to be owing to the several creditors men- tioned in the schedule to the registrar's certificate, together with subsequent interest on such of the debts as bear interest, 136 Decrees. be paid ; and after making such payments, let the amount coming to the several legatees mentioned in the schedule, together with subsequent interest (to be verified as afore- said,) be paid to them (_/). 3. And if there should then be any residue, let the same be paid to the residuary legatee. No. CXXIII. FINAL DECREE IN A SUIT BY A HESIDUAKY OB GENERAL LEGATEE, FOR ADMINISTRATION OF TESTATOR's ESTATE, REFERRED BACK TO THE COUNTY COURT BY THE COURT OF CHANCERY. Upon the hearing, this day of of Mr. attorney for the plaintiff, and upon the hearing of attorneys for the defen- dant, and for upon whom notice of the decretal order in the cause was served on, &c., and upon reading, &c., and an order of Vice Chancellor dated, &c., and the certificate of the registrar of this court, dated and filed this day, that the sum of £ had been paid into court, and was standing to the credit of the cause to an account, [here state the account^ at the bank of 1. It is ordered that the costs as well of all parties to this suit, as of the said ■ [including the costs of the next hereinafter-mentioned assignment, and incidental thereto], be taxed as between attorney and client, and that the same, when so taxed, be paid by the registrar out of the sum of £ [the money paid into court]. The costs of the plaintiff to Mr. his attorney, and the costs of the defendant and of to Messrs. their attornies. 2. And let the registrar enter the balance of the said sum of £ in the cash book and ledger for equitable proceedings (g) of this court, to the account of the (suit or matter in which it is paid), and let him further pay the said sum of £ into the post office savings bank in accordance with the provision of 30 & 31 Vict. c. 142, s. 26 ; and let the interest of the fund to be produced by the payment into the said post office savings bank, of the said sum of £ be paid to the said during her life, or until the further order of this court. 3. And it is further ordered, that the sale of the outstanding personal (/) Where a legacy is nnder £20, the Hinnings v. Hinnings, 2 H. & M. 32; court will direct it to be paid to the repre- S. C. 10 L. T. (N. S. )294. sentative of a deceased legatee, without (j;) See C. C. Ords. in Eq., Ord. 17, requiring them to take out administration. Rules 2 and 3. Decrees. 137 estate of the testator, by the defendant, in the registrar's certificate of, &c., mentioned be confirmed, and that an assignment be executed to of such outstanding personal estate, in which assignment all necessary parties are to join, such assignment to be prepared by the atlornies for the defendants, the executrix and the executor, and in case any difference shall arise respecting the same, it is ordered — that it be referred to this court for settlement. 4. And it is further ordered, that all parties shall be at liberty to apply to this court for such further order as they may be advised. No. CXXIV. DECREE IN AN ADMINISTRATION SUIT BY A LEGATEE, WHERE AN EXECUTOR IS HELD PERSONALLY LIABLE FOR THE PAYMENT OF LEGACIES. 1. Declare that the defendant is (A) personally liable to pay the legacy of £ bequeathed to the plaintiff; 2. And it is ordered that an account be taken of what is due for principal ' and interest on the said legacy; 3. And it is also ordered that the defendant do within weeks after the date of the registrar's certificate, pay to the plaintiff the amount of what the registrar shall certify to be due for principal and interest ; 4. And it is ordered that the defendant do pay the plaintiff his costs of suit, the same to be taxed in case the parties differ. No. CXXV. RESIDUE DECLARED DISTRIBUTABLE UNDER THE STATUTES OF DISTRIBUTION. Declare that one-third part of the clear residue of the intestate's estate (ft) The Court of Chancery will, in eer- General v. Chapman, 3 Beav. 265. tain cases, hold an executor personally Postlethwaite v. Momtsey, 6 Hare, 33; bound to pay creditors or legatees without but in order to raise a case, the plaint taking the accounts, in order to ascertain should state the circumstances under the state of the assets ; for instance, where which the defendant is sought to be charged there has been an admission of assets, personally. Savage v. Zone, 6 Hare, 32. ; Barnard v. Pumfrett, 5 My. & C. also Seton on Decrees, Vol. 2, 3rd. ed., 63. Payment of interest unexplained is p. 737. an admission of assets. The Attorney 1 38 Decrees. is divisible between the plaintiff and the other next of kin of the intestate entitled thereto under the statutes for the distribution of intestate's estates. No. CXXVI. FEME covert's SHARE TO BE CARRIED OVER. And let so much of the said money as shall be certified to be due to the wife of B. be entered in the cash book of the registrar to the credit of this cause, to an account to be entitled " the account of the wife of B." (subject to legacy duty), subject to further order ; and let the said be at liberty to apply concerning the same as she may be advised, [or, let the registrar enter the said sum of'Sj in the cash hook and ledger of this court, to the credit of this suit, to an account to be entitled " the account," ^c, and forthwith pay the same into the pots office savings hank, in accordance reith the provisions oftheZO Sf 31 Vict. c. 142, s. 26, and let the interest to he produced hy the payment into the said savings bank of the said sum, he paid to the said during her life, for her separate use, or until further order.] No. CXXVII. infant's share to be laid out, so as to ACCUMULATE. 1. Let the said money that shall be verified to be due to the infant A. be entered by the registrar in the cash book and ledger of this court, to an account to be entitled " the account of the infant A.," (subject to legacy duty), and let the registrar forthwith pay the said sums so certified as aforesaid into the pest office savings bank, in accordance with the provisions of the 30 & 31 Vict. c. 142, sect. 26 ; and let the interest of the fund to be produced by the payment into the said savings bank of the said sum of £ be accumu- lated. 2. Let all parties to this suit have liberty to apply to the court, as they may be advised. Decrees. 139 No. CXXVIII. EXECUTOR UNDERTAKING TO PAY LEGACIES, THE AMOUNT TO BE PAID TO him; residue TO BE CARRIED OVER. And let the sum of £ part of the sum of £ be paid to the defendant the executor of the testator, he (by his counsel), undertaking fortliwith to apply the same in payment of the several lega- cies mentioned in his said affidavit ; and out of the residue of the sum of £ , let the sum of £ be entered by the registrar in the cash book and ledger, &c. \as in the latter part of No. CXXVI.] No. CXXIX. DECRETAL ORDER IN AN ADMINISTRATION SUIT BY NEXT OF KIN. 1. That an inquiry be made, who were the next of kin of the deceased in the plaint mentioned, at the time of her death, and whether any of them have since died, and if so, who are their legal personal representa- tives, if any, and an inquiry what share, if any, the plaintiff is entitled to as one of the nest of kin of the intestate. 2. An account of the intestate's debts. 3. An account of her funeral expenses. 4. An account of the personal estate of the intestate come to the hands of the defendant or to the hands of any other person by her order or for her use. 5. An inquiry, what part (if any), of the personal estate of the intes- tate is outstanding and undisposed of, and let the same be got in or sold, if and as the judge shall direct. 6. And it is ordered that on or before the day of at o'clock in the morning, the defendant do bring in to the registrar an account of the intestate's personal estate at her death, and of her funeral expenses and debts; 7. And it is ordered, that on or before the day of the plaintiff do bring in to the registrar a statement of the next of kin of the intestate at her death. [8, 9, 10, and 11, as in form, No. XCVIII., paragraphs 6, 7, 8, aTid 9.] M 140 Decrees. No CXXX, FINAL DECREE IN AN ADMINISTRATION SUIT BY NEXT OF KIN. 1. Let the registrar of the said court tax the costs of the plaintiiFs and defendant in this suit, and let the amount of the said plaintiffs' costs, when so taxed, be paid by the defendant to the plaintiffs out of the sum of £ the balance by the said certificate, found to be due from the said defendant on account of the personal estate of E. F. the intestate, within one week after the taxation of the said costs by the said registrar, and let the defendant retain for her own use out of such sum, her costs, when taxed. 2. And it is ordered, that the residue of the said sum of £ after payment of the plaintiffs' and defendant's costs as aforesaid be paid and applied by defendant as follows : — A. Let the defendant within one week after the taxation of the said costs by the registrar as aforesaid, pay one-third share of the said residue to the plaintiffs A. and B. his wife, in her right, as the sister and one of the next of kin of the said E. F. the intestate. B. Let the defendant retain for her own use one other third share of the said residue, as the mother, and one other of the next of kin of the said E. F. the intestate. C. And let the defendant within one week after the taxation of the said costs by the registrar as aforesaid, pay the remaining one-third share of the said residue to G. H., as the brother and the other next of kin of the said E. F. the intestate. Decrees. 141 No. CXXXI. INQUIRIES AND ACCOUNTS AGAINST SURVIVING EXECUTOR AND TRUSTEE (a). Upon hearing, &c., it is ordered that the following accounts and inquiries be respectively taken and made : — 1. An account of the sums come to the hands or received by the defendant [either alone or jointly with his deceased co-trustee.] 2. An inquiry, of v?hat particulars the trust estate or funds consist, and how they are invested ? 3. And in case it shall appear in taking the said accounts that any unauthorised investments have been made of the said trust funds, then an inquiry whether any and what loss has beeh sustained thereby, and if so, how and under what circumstances? 4. An inquiry, what balances from time to time remained in the hands of the said trustees or either of them ? 5. And in case it shall appear in taking the said accounts that any part of the said trust funds has improperly remained uninvested, then let there be an inquiry, whether any and what loss has been sus- tained by reason thereof, and if so, when and under what cir- cumstances ? 6. And it is ordered [here add Pars. 8 and 9 of form, No. XCVIII.] (a) A3 to the liability of a trustee forthe 116; and Seton on Decrees, 3rd ed. vol. 2, acts or defaults of his co-trustee, see note, 752, et leq. ante, p. 46, and Wathins v. Hogg, 3 Giff. M 2 143 Decrees. No. CXXXII. DECREE TO CARRY THE TRUSTS OF A WILL INTO EXECUTION ; ACCOUNTS AND INQUIRY AS TO FARMING BUSINESS J CHILDREN; REMOVAL AND APPOINTMENT OF NEW TRUSTEES. [Title and commencement, as in form, ante, No. XCVIII.] This cause, &c. Declare that the trusts of the will of the testator, in the plaint named, dated the day of ought to be per- formed and carried into execution, and decree the same accordingly ; and let the following accounts and inquiries be made and taken:— 1. An account of the testator's estate and effects come to the hands of the defendants or of any of them, or to the hands of any other person or persons by the order or for the use of the said defendants or any of them : 2. An inquiry, what parts (if any) of the testator's personal estat-e are outstanding or undisposed of : 3. An account of the testator's debts : 4. An account of the testator's funeral expenses : 5. An inquiry, what freehold and copyhold estates the testator died sei?ed of, [and as to incumbrances, as inform, ante, JVb. XCIX.] 6. An inquiry, whether any and what debts of the testator have been paid by the said defendants or any of them ? 7. An inquiry, whether any, and what sum or sums of money have been properly applied by the defendants or any of them, in stocking, cropping, managing, and cultivating the farm in the testator's will men- tioned, and in the support and maintenance of the Defendant the testator's widow, and of all or any of his children, as by his said will directed ? 8. An inquiry, what children the testator had living at the time of his death, or born since, and whether any and which of such children are now living, and if any of them be dead, when and at what age they respectively died, and whether any of them were married and when and to whom, and whether they left any child or children or issue respec- tively them surviving, and who are their respective legal personal repre- sentatives ? 9. The defendants by their counsel, expressing their desire to Decrees. 143 retire from the trusts of the testator's will in the plaintiff's plaint mentioned, and to be discharged therefrom, let two or more persons be appointed trustees of the said will, jointly with the said the continuing trustee ; and let the defendants convey, assign, and transfer the trust estate vested in them by the said will, so as to vest the same in the trustees so to be appointed jointly with upon the trusts mentioned in the said will, or such of them as are now subsisting or capable of taking effect; and that such conveyance and assignment be settled by the judge, in case the parties differ ; and let the defendants deliver to such new and continuing trustees, upon oath, all deeds and writings in their custody or power relating to the trust estates. 10. Direction to tax costs, as in form, No. CXXII. (b). 11 . And let the further consideration of this cause, and of the costs, not hereinbefore otherwise provided for, be adjourned. 12. Let all parties to the suit have liberty to apply to the court as they may be advised. No, CXXXIII. DIRECTION IN A DECREE FOR THE TRANSFER OP A FUND TO WHICH A MARRIED WOMAN IS ENTITLED TO HER HUSBAND, SHE CON- SENTING, AND THERE BEING NO SETTLEMENT. And upon reading an affidavit of and his wife, of there being no settlement, and the said [the wife] being (c) (6) The costs of trustees are generally but the court must order a proper settle, allowed as betwen solicitor and client, ment to be made; and see Abraham v. (c) By the 8th Rule of the 17th Ord. of the Neiocom.be, 12 Sim. 566. No such exami- Co. Co. Ords. in Eq., adopting the practice nation or consent is necessary where a in Chancery, it is directed, that where any woman is entitled to money, or to a sum married woman [of/uH ogre], is interested of stock for her separate use. In the one in any principal money, stocks, shares, or case, the court will order the money securities, exceeding in value £200, or £10 to be paid to her on her sole receipt ; and in annual payments, she shall be examined in the other, will order the stock to be sold, by the judge apart from her husband, to and the money produced thereby to be ascertain whether she is desirous the same paid to her in like manner. Leclimere v. shall be transferred or paid to him, or made Brotheridge, 32 Beav. 353. the subject matter of a settlement. Where the value of the sum is under If, however, the married woman should £200, or £10 a year, the court may order be under the age of 21 years, her consent it to be paid to the husband, cannot be taken to the transfer of the fund ; But in all these eases, previously to the 144 Decrees. present in court and examined, and consenting and desiring that the sum of £ standing in the cash book and ledger of this court to the credit of this suit, to the account of, &c. should be paid to the said (her husband). It is ordered, that the said sum of £ and any interest due thereon, be paid to the said in right of his wife. No. CXXXIV. DECBEE FOR SETTLEMENT, WHERE A MARRIED WOMAN DESIRES A SETTLEMENT (d). And the said {the wife),hemg present in court and examined, and desiring that the said sum of £ should be settled for the benefit of herself and children, it is ordered, that a proper settlement be made, to be approved of by the judge; and any of the parties are to be at liberty to apply to the court as to the terms of such settlement, and the disposition of the said fund. No. CXXXV. ORDER EMBODYINO TERMS OF SETTLEMENT. Upon hearing, &c. 1. It is ordered that it be referred to the registrar to tax the plaintiff (or the petitioner), and the said their costs of this application and consequent thereon as between solicitor and client. 2. And it is ordered, that so much of the £ Bank £3 per Cent. Annuities standing in the names of &c., as will raise the said costs, be sold. court making any order for payment, there special circamstances, as when the hnsband mnst be an affidavit by the hnsband and is abroad, the coni-t allows the affidavit wife, either deposing that no settlement to be made by the wife alone. ElUott v. has been made, or that ho settlement has Remmington, 9 Sim. 502. been made of the fond. In the latter case, (cQ See ante, p. 27 ; and Re Suggitt't the settlement most bo produced to show Trust, 3 L. K. Ch. App Cases, 215. that the fact is as represented. Under Decrees. 145 3. And it is ordered, that out of the money to arise by the said sale, the costs of the plaintiff [or of the petitioner}, and of the said be paid to &c., their solicitor. 4. And it is ordered, that the residue of the said Bank Annuities, after such sale, he transferred into the names of the treasurer and registrar of this court; and that the registrar do enter in the cash book and ledger for equitable proceedings in this court, to an account to be entitled the account of the settlement of and his wife, the amount so transferred. 5. And this court doth d^lare that the said Bank Annuities are to be held in trust for the said during her life, or for and during her present eoverture, for her separate use, without power of anticipation ; and after her decease, in case the defendant (the husband) should survive her, in trust for the said defendant during his life, or until the further order of this court; and after the decease of the survivor of them, in trust for all the children of the said and of the said defendant, who, being a son or sons, shall attain the age of twenty-one years, or, being a daughter or daughters, shall attain that age, or marry, in equal shares. 6. And it is ordered, that the interest to accrue on the said Bank Annui- ties, and any interest which may accrue on the said Bank Annuities pre- viously to the said sale, be paid to the said the wife of the defendant for her separate use during her life, or until the further order of this court ; and after the decease of the said in case the defendant should survive her, to the said defendant during his life, or until the further order of this court. No. CXXXVI. DECREE FOR EXECUTION OF TRUSTS UNDER DEED OF SETTLEMENT. Upon hearing, &c. 1. It is ordered that the trusts of the deed of settlement, &c. [or the will of, &c.] be carried into execution under the direction and decree of the court [direct inquiry, if necessary, as to the trust funds]. 146 Decrees, 2. And it is ordered, that the registrar do tax the costs of the plaintiff and defendants as between solicitor and client, including in the costs of the defendants {tlie trustees) their costs, charges, and expenses, if any, properly incurred. 3. And it is also ordered, that the defendants {the trustees) do raise the said costs, and costs, charges and expenses, when taxed, by a sale of a suffi- cient part of the trust fund of £ Bank £3 per Cent. Annuities; and with the money produced by such sale do pay the said costs, and costs, charges and expenses, as follows, (that is to say), the costs of the plaintiff to his solicitor, the costs of the defendant to his solicitor, and the costs, and costs, charges and expenses of the defen- dants {the trustees) to their solicitor. 4. And it is ordered, that the defendants {the trustees,) do, after satis- fying the said costs, and costs, charges and expenses, transfer the residue of the said £ Bank £3 per Cent. Annuities, now standing in their names into the names of the treasurer and registrar of this court, 5. And it is ordered, that the dividends to accrue on the said Bank Annuities, or the residue thereof, after such sale, be paid previously to the transfer by the defendants {the trustees,) and after the transfer by of this court, to the defendant the wife of the defendant during her life, or until the further order of this court, upon her sole receipt, with liberty for any person interested to apply upon the death of the said No CXXXVII. DIRECTION IN DECRETAL ORDEH OR DECREE TO MAKE ANNUAL RESTS, AND CHARGE INTEREST (e). 1. And it is ordered, that the balance of the residuary personal estate of the testator in the hands of the defendants at the death of the said be ascertained, and that annual rests be made of the clear balance of such personal estate in the hands of the defendants since the death of the said (e) Par. 2 of this Precedent was the di- " specific than that in the decree then un- rection in the decree in Cothavi v. West, 1 •'■ der consideration, and more so than any Beav. 380, of which Lord Cottenham, in " other referred to." See Seton on Decrees, Heighington v. Grant, 5 M. & Cr. 368, 3rd ed. vol. 2, p. 762, et seq. observed, " that it P'as more dietinct and Decrees. 147 2. And it is ordered, that interest be computed on the balance which shall be ascertained as aforesaid, at the rate of £ per cent, per annum ; and in making such annual rests (except the first), the in- terest of each preceding balance is to he included in the balance then stated, so as to charge the said defendants with compound interest thereon, 3. And it is ordered, that an account be taken of the rents and profits since the death of the said received by the defendants respectively, or either of them 4. And in taking such account, let annual rests be made of the clear balance of such rents and profits in the hands of the said or either of them. 5. And let interest be, computed on such balance, at the rate of £ per cent, per annum. 6. And in making such annual rests (except the first) the interest of each preceding balance is to be included in the balance then stated, so as to charge the said defendants with compound interest thereon. No. CXXXVIII. DECBETAL ORDER FOR REFERENCE IN FORECLOSURE SUIT BY LEGAL MORTGAOEE AGAINST MORTGAGOR. See Co. Co. Forms in Equity, No. XXIII. No. CXXXIX. DECRETAL ORDER FOR SALE IN A SUIT BY A LEGAL OR EQUITABLE MORTGAGEE. See Co. Co. Forms in Equity, No. XXIV. No. CXL. DECRETAL ORDER FOR FORECLOSURE, WHERE MORTGAGE MONEY IS DIRECTED TO BE PAID TO THE MORTGAGEE, THE MORTGAGOR BEING IN POSSESSION. 1. It is ordered, that it be referred to the registrar to take an account of what is due to the plaintiff for principal and interest on the mortgage in 148 Decrees. the plaint stated, and for his costs of this suit, such costs to be taxed by the registrar. 2. And upon the defendant paying to the plaintiff what shall be certified to be due to him for principal, interest, and costs, as aforesaid, within six calendar months after the date of the registrar's certificate at such time and place as shall be thereby appointed, it is ordered that the plaintiff do re-convey {or re-surrender, or re-assign), the heredita- ments, &c., comprised in the said mortgage, free from all incum- brances by him or any persons claiming by, from, or under him, and do deliver up upon oath all deeds and writings in his custody or power relating thereto to the defendant or to such person as he shall appoint. 3. But in default of the defendant paying to the plaintiff what shall be so certified to be due to him for such principal, interest, and costs as afore- said by the time aforesaid, it is ordered, that the defendant be from thence- forth absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption of, in, and to the said mortgaged hereditaments. No. CXLI. DECRETAL ORDER OF FORECLOSURE BY FIRST MORTGAGEE AGAINST SECOND MORTGAGEE AND MORTGAGOR. 1. It is ordered, that it be referred to the registrar to take an account of what is due to the plaintiff for principal and interest on the mortgage mentioned in the plaint, and to tax the plaintiff^s costs of this suit, and that the registrar do certify to the court on the day of what he shall find to be due for principal and interest as aforesaid, and for costs. 2. And upon the defendant [second mortgagee'] paying into court what shall be certified to be due to the plaintiff for principal and interest as aforesaid, together with the said costs within six months after the regis- trar shall have made his certificate, it is ordered, that the plaintiff do reconvey the said mortgaged premises, &c., and that upon such recon- veyance being made, &c., the registrar shall pay out to the plaintiff the said sum so paid in as aforesaid for principal, interest, and costs. 3. But in default of the defendant [second mortgagee] paying into court such principal, interest, and costs, as aforesaid, by the time aforesaid, then it is ordered that such defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the said premises. 4. And it is ordered, that in case of such foreclosure the plaintiff's subse- quent interest be computed, &c., and subsequent costs be taxed. Decrees. 149 5. And that upon the defendant {mortgagor,] paying into court what shall be certified to he due for principal, interest, and costs, together with such subsequent interest and costs as aforesaid, within three calendar months after the registrar shall have presented his subsequent certificate, it is ordered, that the plaintiff do reconvey the said mortgaged premises, free and clear, aviesv.Hodgson,25Beay.m. Bobert- And as to account of profits made subse- son v. Quiddington, iS Beav. 529. As to quently to a partner's decease, Wedde- trade mark. Hall v. Barrows, 33 L. J. 6ar» V. Werfrfeftura, 22 Beav. 84. And (N. S.) Ch. 204; S. C. 11 W. Rep. 626. as to a goodwill, ibid. 104. See also Simp- 164 Decrees. 3. Account of the partnership debts and liabilities at the time of the testator's death. 4. An inquiry, what has since become of the partnership property, and whether any, and if any, what parts thereof remain in specie or outstand-> ing and undisposed of ? 5. An inquiry, whether any, and which of the partnership debts and liabilities have been since paid or satisfied, and by whom, and out of what fund ? And let such of the partnership property and effects as still remain in specie, be sold, &c. (as inform, No. XCIX ) No. CLXIX. HOUSE, ETC. WHERE BUSINESS WAS CARRIED ON DECLARED PARTNER- SHIP ASSETS. Declare that the leasehold house, &c. at, &c. in the plaintiff's plaint mentioned, and comprised in the indenture of lease, dated, &o., and in the indenture of assignment, dated, &c., and wherein the partnership business between the plaintiff and the defendant has been carried on, are assets of the said partnership. And let the said leasehold premises, together with the trade fittings and fixtures thereon, be sold, with the approbation of the judge. No. CLXX. PARTNERSHIP. — FINAL DECREE (I). See Form of Final Decree (No. XXVII.) in Schedule of Forms to Co. Co. "Ords. in Eq. ^'^/L*? ''°^^^ of suit, it maybe ob- is, that each party to a suit for a dissolu- served, that, except under special circum. tion, pays his own costs, stances, the rule of the Court of Chancery CHAPTER XII. PARTIES. Formerly it was necessary to the due constitution of a suit in equity that all persons interested in the subject matter of it should be made, either as plaintiffs or defendants, parties to it; but by the 15 & 16 Vict. c. 86, s. 42, an Act to amend the Practice and Course of proceeding in the Court of Chancery, defendants to suits are precluded from taking objec- tion for want of parties in any of the cases to which the first six rules of that section apply, (for those cases, see ante, p. 2). By the 7th rule of the same section, the court may require, in those cases, any other person to be made a party to the suit; and by the 8th rule of the same section in the cases provided for by the above rules, the persons who according to the then practice of the court, would be necessary parties to the suit, must be served with notice of the decree, and after such notice they are bound by the proceedings in the same manner as if they had been originally made parties to the suit. They may, by an order of course, have liberty to attend proceedings under the decree, and any party so served may within the time prescribed by the general order of the Lord Chancellor apply to the court to add to the decree. By the Co. Co. Orders in Eq., Ord. 7, R. 1, where any matter is referred to the registrar by a decretal order, he must, as soon as conveniently may be, ascertain if there are any parties, who, if the decretal order had been made in a suit pending in the Court of Chancery, ought under the 42nd sect, of the 15 & 16 Vict. c. 86, to be served with a notice under rule 8 of that section. By rule 2 of that order, where it shall be neces- sary to serve any parties with the notice mentioned in the foregoing rule (a), the same must be prepared by the registrar, and issued by him to the bailiff, who is to serve the same ; and upon such notice, the party- served therewith, may attend the proceedings under the decretal order. By rule 3 of that order, any party who shall be served with a notice under the last foregoing rule, may apply to the court at the next sitting, or by leave of the judge at any subsequent sitting, to vary or add to the decretal order. Where, however, the party to be served is an infant, the practice of the court of Chancery should be followed ; and an order obtained. (a) For form of notice, see Co. Co. Ords. in^Eq. App. form No. XXXVIII. 166 Parties. Forms. directing to whom on his hehalf, notice of the decretal order should be given ; which would be to the father, guardian, or person standing in loco parentis to the infant. If the infant or person acting on his behalf should desire to attend the proceedings, a guardian, ad litem, must be appointed to the infant. As to dispensing with service or ordering substituted service or notice by advertisement. See Co. Co. Ords. in Eq., Ord. 23, R. 14. No. CLXXI. OBDEK FOR SERVICE OF NOTICE OF DECRETAL ORDER UPON FATHER OF AN INFANT NOT A PARTY TO THE SUIT. Upon the application of the plaintiff, and upon hearing his solicitor, and an affidavit of (fee. to show that \the interest of the infant], and that he is under age, and it being alleged that of who is required-to be served with notice of the decretal order made in this suit, bearing date, &c. is still an infant, I do order that notice of the said de- cretal order be served upon the said by serving the same upon (his father) and that a copy of the order be also served with the said notice. No. CLXXII. ORDER APPOINTING A GCTARDIAN OF AN INFANT SERVED WITH NOTICE OF A DECRETAL ORDER. Upon the application of an infant, by his attorney, and upon reading the affidavit of, &c. I do order that of the father of the said be and he is hereby assigned the guardian of the said by whom he may defend this suit. No. CLXXIII. ORDER FOR AN INFANT SERVED WITH NOTICE OF DECRETAL ORDER TO ATTEND PROCEEDINGS. Upon the application of an infant, by his guardian It is ordered that the said by his guardian be at liberty to attend the proceedings under the decretal order in this suit, bearing date, &c. Decrees. 167 REGISTRAR'S CERTIFICATE. FORMS. The registrar must prepare his certificate seven days before the day appointed by the decretal order for presenting the same, and give notice thereof to all parties; any of whom, upon applying and paying the costs thereof will be entitled to a copy. Co. Co. Ords. in Eq., Ord. 8, Rules 2 and 3. As to the variation of the registrar's certificate, any party interested, who desires to have the same varied, may apply for that purpose to the court on the day appointed for presenting the same, when the judge may either vary or confirm the certificate. No. CLXXIV. FORM OF THE REGISTRAR'S CERTIFICATE IN A SUIT TO ADMINIS- TER AN intestate's ESTATES («). In the County Court of holden at In the suit of Plaintiff, and Defendant. In obedience to the decretal order of this court, made in the above suit, I hereby certify that the result of the accounts and inquiries which have been taken and made, in pursuance of the decretal order, made in this suit, dated the day of 186 , is as follows : — 1. The plaintiffs and defendants have attended by themselves, or by their reispective attorneys. (a) The registrar has all the powers, ments, accounts, and inquiries are to be and can discharge all the duties of a chief taken and made, clerk of thejudges oftheCourt ofChancery. Upon reference to such rules, it will be See Co. Co. Ords. in Eq., Ord. 6, rule 2, seen, that a creditor is not, in the first and 15 & 16 Vict. c. 80, ss. 30, 31, as instance, required to make any affidavit to duties of chief clerk. The practitioner of his debt, or a statement, but merely to is also referred to the 3rd, 4th, 6th, 8th, forward the full particulars of his claim, 9th, 10th, 11th, 12th and 13th rules of with the security (rules 4, 5, and 6.) Ord. 6, as to the mode in which the state- But at the time appointed for adjudica- 168 Certificates. Forma. 2. The debts of the intestate including the plaintiff's, which have been allowed, are set forth in the first schedule hereto, and with the interest thereon, mentioned in the said schedule, are due to the plaintiff and the other persons therein mentioned, and amount altogether to £ 3. No other claim has been allowed, and no other person has come in and proved any debt against the estate of the said intestate, and the time fixed by advertisement for that purpose has expired. 4. The interest on such debts is computed down to the date of this certificate, and after the rate of £ per centum per annum, from the day of the date of the said decretal order, unless otherwise specified in the said schedule. 5. The funeral expenses of the intestate, amounting to the sum of £ have been paid and are allowed the defendant, the adminis- trator of the said intestate, as hereinafter mentioned. 6. The administration expenses of the intestate, amounting to the sum of £ have been paid, and are allowed the defendant, the adminis- trator of the said intestate, in the account of personal estate hereinafter mentioned. 7. The defendant the administrator of the intestate, named in the decretal order, has received personal estate to the amount of £ and he has paid, or is entitled to be allowed on account thereof the sum of £ leaving a balance due from him of £ on that account. 8. The particulars of the above receipts and payments appear in the account marked " A.," verified on oath by the said defendant, and filed the day of and which account is to be filed with the certificate. 9. There is no personal estate of the intestate outstanding or undis- posed of. Dated the day of Registrar. tion, the registrar is to take the evidence of If further evidence is required from any the personal representatives of the de- creditor, notice must be given to him for ceased upon the claims, and, in his dis- that purpose, and to attend and prove his cretion, either allow the claims, or require claim, upon a given day \the day to which further evidence. the adjudication shall be adjourned]. Certificates. Forms. 169 No. CLXXV. SPECIAL CERTIFICATE OF REGISTRAR IN ADMINISTRATION SUIT, WHERE NOTICE OF DECREE HAS BEEN GIVEN ; BUT THE AMOUNT OF THE ESTATE IS MORE THAN £500. In obedience to the decretal order of this court, made in the above suit, dated, &c., I hereby certify that the result of the accounts and inquiries which have been taken and made, in pursuance of the said order, is as follows : — 1. The plaintifts and defendants have attended me by their respective attorneys. 2. Notice of the said decretal order of, &c., was served on H. H., of, &c„ on, &c., who is joint residuary legatee with the plaintiff, under the will of the testator, W. H., and the only person interested under his will, except the parties to this suit, and the said H. H. has attended me in person, and by his attorney. 3. The defendants, the executrix and executor of the said testator, named in the said decretal order, have received personal estate to the amount of £ and they have paid debts, funeral, and testamen- tary expenses of the said testator, amounting to the sum of £ leaving a balance due from them of £ on that account. 4. The particulars of the receipts and payments appear in the account marked A., verified by the affidavit of the said defendants sworn, &c., and which account is filed with this certificate. 5. I have caused advertisements to be inserted in the and the of, (fee, for the creditors of the said testator to send in their claims to me, on or before the day of ; or in default, that they would be peremptorily excluded from the benefit of the said order, and I hereby certify that no claim has been sent in. 6. There are no legacies given by the testator's will. 7. The trade in which the said testator was engaged was that of, &c., and was continued and carried on by the defendant the executrix, to the day of for her own benefit, as directed by the will of the said testator. 8. The said trade and business has been since carried on by the defen- dants for the benefit of the said testator's estate. 9. I find that the whole of the testator's stock-in-trade, amounting in value to, &c., was employed by the said defendants in carrying on the said trade in manner aforesaid. 170 Certificates. Forms. 10. I find that the sura of £ has accrued to the estate of the said testator, from the profits of carrying on the said trade and business from, &c., to the date of this my certificate. 11. The particulars of the receipts from the said trade and business, and of payments made by the defendant in carrying on the same during the last-named period, appear in the account marked B., also verified by the aforesaid affidavit of the defendants, and which account is filed, with this certificate, except that of the items of disbursement in the said account, I have deducted from the items numbered the sum of £ 12. The personal estate of the said testator, outstanding or undisposed of, and which by the said decretal order of, &c., I am^directed to sell, con- sists of the particulars set forth in the schedule hereto. 13. The whole of such outstanding personal estate, with the exception of the goodwill of the said trade, and the lease of the house and premises wherein the same is carried on, has been valued at the sum of £ 14. The defendant, M. H., has ofiiered and agreed to purchase the same at such valuation, and has also offered and agreed to purchase the goodwill of the business, and the lease of the said premises, for the sum of £ 15. Such oifer has been submitted to the Plaintiff, and to, &c., the only parties beneficially interested in the distribution of the testator's estate, who have both attended me, with their respective attornies, and have consented to such sale. 16. I find that it will be for the benefit of the said testator's estate to effect such sale of the outstanding personal estate of the said testator, to the defendant, M. H., for the sum of £ 17. The estate of the said testator will thus consist of the following items : — Cash balance in executor's hands - - £ Value of outstanding personal estate - - £ Total £ 18. I therefore find that the suliject matter of this suit exceeds the amount to which the jurisdiction of this court is limited, and certify the same accordingly to the court. Dated, (fee. The Schedule before referred to. The stock-in-trade valued at £ The household furniture and effects valued at £ Forms. 171 No. CLXXVI. ORDER FOR TRANSFERRING SUIT WHERB PROPERTY EXCEEDS FIVE HUNDRED POUNDS IN VALUE (J). In the County Court of holden at In the suit of Plaintiff, and Defendant. Whereas, it appearing' that the subject matter of this suit exceeds in amount the sum of £500, It is ordered that this suit be transferred to the High Court of Chancery, together with the annexed certificate of the registrar of this court, showing the state of the suit, and the pro- ceedings that have been had therein in this court. Dated, &c. Eegistrar. No. CLXXVII. ORDER OF COURT OF CHANCERY FOR THE FURTHER PROSECUTION OF THE PLAINT DIRECTED IN THE COUNTY COURT, ALTHOUGH SUBJECT MATTER OF SUIT, EXCEEDS IN AMOUNT £500. L. C. V. C. Stuart. Upon the application of the plaintiff, and upon hearing the solicitors for the plaintiff and for the defendants, who consent hereto, and upon reading a plaint, filed in the County Court of an office copy of the will of, &c., the testator, probate whereof was granted on, &c., to the defendants and the order of the said County Court, dated, (fee, the registrar's certificate, dated, &c., and filed, &c., and an order of the judge of the County Court of dated, *«• cellors courts as the Lord Chancellor may by general order direct ; and such Vice-chancellor shall have power to regulate the whole of the procedure in the said suit or matter when so transferred : Pro- vided always, that it shall be lawful for any party to apply to such Vice-chancellor at chambers for an order authorizing and directing the suit or matter to be carried on and prosecuted in the county court, notwithstanding such excess in the amount of the limit to which jurisdiction io the matter is hereby given to the county courts ; and the Vice-chancellor, if he shall deem it right to summon the other parties or any of them to appear before him for that purpose, after hearing such parties, or on default of the appearance of all or any of them, shall have full power to make such order. ^o^diDg°B"Iha]i ^^- ^^*^ respect to the court in which proceedings in equity shall fce taken. be taken — 1. Proceedings under this Act which relate to the recovery or sale of any mortgage, charge, or lien on lands, tenements, or here- ditaments shall be taken in that county court within the district of which the lands, tenements, or hereditaments, or any part thereof, are situate : 2. Proceeding's under the Trustee Acts, 1850 and 1852, shall be taken in the county court within the district of which the persons making the application, or any of them, reside or resides : 3. Proceedings for the administration of the assets of a deceased person shall be taken in the county court within the district of which the deceased person had his last place of abode in England, or in which the executors or administrators, or any one of them, shall have their or his place of abode : 4. Proceedings in pai-tnership cases shall be taken in the county court within the district of which the partnership business was or is carried on ; 6. Proceedings for the specific performance or the delivery up or cancelling of ag^reements shall be taken in the coun^ court within the district of which the defendants, or any one of them, reside or resides, or carry on or carries on business : 6. Proceedings in any suit or other matter under this Act, which are not otherwise provided for, shall be taken or instituted in the county court within the district of which the defendants, or any or either of them, shall reside or carry on business. As to traoBfer of 1 1 • If during the progress of a suit or matter it shall be made to »nit from one appear to the court that the same could be more conveniently pro- mother""^ '" s^^uted in some other county court, it shall be competent for the court to transfer the same to such other county court, and thereupon the suit or matter shall proceed in such other county court. Bemuneratfon 12. The registrars and high bailiffs of the county courts shall be Md^'M»rff f6™i™erated for the duties to be performed by them under the in matters oV ' jurisdiction in equity given to the courts by this Act, by receiviriff Equity. for their own use such fees as may be from time to time authorized to be taken by any orders to be made by the commissioners of the treasury, with the consent of the Lord Chancellor; and the commis- sioners of the treasury are hereby authorized and empowered, with such consent as aforesaid, from time to time to make such order. Certain fees to 13. In addition to the fees to be authorized to be taken bv order De taken, and to '' 28 # 29 Vict. Cap. 99. 235 of the commissioners of Her Majesty's treasury as aforesaid, there be paid over to shall be paid by the suitors the several fees which are specified and the consolidated set forth in the schedule to this Act, or such further or other fees as sai" ries"of the the said commissioners, with the consent of the Lord Chancellor, shall judges to be from time to time by order direct, which fees shall be received by 3005^*"^*^^ the registrar of the court, and accounted for and paid over by him to the treasurer of the court, who shall, at such times as the said commissioners shall direct, pay such fees into the Bank of England to the credit of the paymaster-genei-al, to be by him paid over to the credit of the consolidated fund of the United Kingdom of Great Britain and Ireland, and the salaries paid out of such fund to the judges of the county courts shall be increased by three hundred pounds a year : Provided always, that the salary of the successor to any judge who under this Act shall receive a larger salary in the whole than one thousand five hundred pounds shall not exceed one thousand five hundred pounds . Provided also, that if any judge heretofore appointed shall resigTi his office by reason of any perma- nent infirmity before he shall have received or become entitled to receive the increased amount of salary payable to him under this Act for the full period of five years, any annuity which the Lord Chan- cellor may recommend to be paid to him upon such retirement shall be calculated with reference to the average amount of salary received or receivable by him for the five years next preceding the date of such retirement, and not with reference to the yearly salary which he shall be entitled to as a judge of county court at the time of presenting his petition for the grant of an annuity. 14. No judge of any county court shall be obhged to hold any l^^?^°* courts during the month of September in any year, unless he shall be hold courts ordered by the Lord Chancellor so to do ; and if any judge shall be jn the month of desirous of holding courts in the said month of September, and of s«Pt«'n''e'- being relieved from the obligation to do so at some other period of the year, it shall he lawful for such judge, with the sanction of the Lord Chancellor, to close the courts upon his circuit for any period or periods of time of which the Lord Chancellor shall approve, not exceeding in the whole four weeks in any one year : Provided always, that every county court shall always he open for the receipt and payment out of money due under any order of the court, pursuant to the rules and orders in force for the time being, or for any proceeding in bankruptcy before the registrar. 15. Such of the judgments and decrees as may be directed by any ^^^°^^ ^^ rule or order shall be registered with the Registrar of the County Court judgments in Judgments in London m such manner as may be therein directed. London. 16. The county court judges appointed or to be appointed by the Lord p™=;^'»,^. Chancellor from time to time to frame rules and orders for regulatmg a„d orders the practice of the courts, and forms of proceeding therein, under the "Jder thii-ty-second section of an Act passed in the nineteenth and twentieth J"*/" *'«• years of the reign of Her present Majesty, chapter one hundred and eight, shall frame the rules and orders for regulating the practice of the county courts under this Act, and forms of proceedings therein, and from time to time amend such rules, orders, and forms ; and such rules, orders, and forms, or amended rules, orders, and forms, certified under the hands of such judges or of any three or more of them, shall be sub- mitted to the Lord Chancellor, who may allow or disallow or alter the same, and so from time to time ; and the rules, orders, and forms, or amended rules, orders, and forms, so allowed or altered, shall, from a s 236 Appendix. Scale of costs to be framed by the judges. Parties ag- grieved may appeal. Appeal to be made either to the high court of Chancery or a Tice- chancellor. Registrar of the Bloomsbury county court of Middlesex, not being an attorney, to be entitled to retire from his office with compen- sation. This Act and 9 & )0 Vict. c. 99, and any Act amend- ing or altering day to be named by the Lord Chancellor, be in force in every county court. 17. The county court judges mentioned in the last section shall be empowered to frame a scale of costs and charges to be paid to counsel and attorneys with respect to all proceedings which are herein authorized to be taken, and- from time to time to amend such scale ; and such scale or amended scale, certifled under the hands of such judges or any three or more of them, shall be submitted to the Lord Chancellor, who from time to time may allow or disallow or alter the same ; and the scale or amended scale so allowed or altered shall, from a day to be named by the lord chancellor, be in force in every county court. 18. If any party in a suit or matter under this Act shall be dissatis- fied with the determination or direction of a judge of a county court on any matter of law or equity, or on the admission or rejection of any evidence, such party may_appeal from the same to the Vice-chancellor authorized as aforesaid, provided tjiat such party shall, within thirty days after such determination or direction, give notice of such appeal to the other party or his attorney, and also deposit with the registrar of the county couit the sum of ten pounds as security for the costs of the appeal ; and the said court of appeal may make such final or other decree or order as it shall think fit, and may also make such order with respect to the costs of the said appeal as such court may think proper ; and such orders shall be final : Provided that nothing herein contained shall authorize any party to appeal against any deci- sion of a county court, given upon any question as to the value of any real or personal property, for the purpose of determining the question of the jurisdiction of the court under this Act, nor to appeal against the decision of a county court on the ground that the proceedings might or should have been taken in any other county court. 19. In any case which may be the subject of an appeal under this Act in causes arising within the county palatine of Lancaster, the appeal may be made either to the High Court of Chancery or a Vice- chancellor thereof, or to the court of Chancery of the county palatine of Lancaster or the Vice-chancellor thereof; and that in case of an appeal to the court of Chancery for the said county palatine or the vice-chancellor thereof, the order on such appeal shall have the same effect as if it had been made by a Vice-chancellor of the High Court of Chancery ; but no appeal shall be made to the court of Chancery of the said county palatine or the vice-chancellor thereof unless the con- sent thereto in writing of the respondent or respondents on such appeal or of his or their solicitor or solicitors, shall be first ob- tained. 20. The present registrar of the Bloomsbury county court of Middlesex, not being an attorney or solicitor, but holding his office by virtue of section twelve of the Act passed in the session of par- liament holden in the ninth and tenth years of her present Majesty, chapter ninety-five, shall be entitled on the passing of this Act to claim and receive compensation for the loss of such office in the same manner as is provided by section thirty-eight of the said act ; and the amount of compensatin to be awarded shall be paid out of monies that may be voted by pariiament for that pui-pose. 21. This Act and the Act passed in the session of parliament holden in the ninth and tentn years of the reign of her present Majesty, chapter ninety-five, and any Act amending or altering . 30 if 31 Vict. Cap. 142. 237 the same, shall be read and construed as one Act, as if the several 'he Bame, to be provisions contained in the said Acts referred to, not inconsistent geaer?'^ '"" with the provisions of this Act, were repeated and re-enacted in this Act. 2-2. The salary of Thomas Eodgers, esquire, who in respect of l^'J^'Eg his abolished office of deputy steward of the court baron of the joinl registrar' of manor of Ecclesall in the county of York became, under the pro- uie county court visions of section eleven of the Act passed in the ninth and tenth hoideflt'"' years of the reig-n of her present Majesty, chapter ninety-five, joint Sheffield, to be . registrar of the county court of Yorkshire, holden at Sheffield, shall, ■*™<' » ?«»"■■ in consideration of the great increase of labour and responsibility of the said last-mentioned office, be from the passing of this Act seven hundred pounds a year, notwithstanding the restriction contained in section eighty-two of the Act passed in the nineteenth and twentieth years of the reign of her present Majesty, chapter one hundred and eight ; and upon the death, removal, or resignation of either of the persons now in possession of the office of registrar of the said county court no other person shall be appointed to such office of registrar, jointly or otherwise, until both the persons holding such office on the first day of June in the year one thousand eight hundred and sixty- five shall have died, been removed, or have resigned. 23. The provisions of this Act shall come into operation on the Commencement first day of October one thousand eight hundred and sixty-five, ° °'' except the provisions relating to framing a scale of costs and making rules and orders of practice and forms of proceeding, and except the provision which relieves the judges from the obligatix)n of holding courts during the month of September, without the order of the Lord Chancellor, which provision shall come into operation on the passing of this Act. SCHEDULE. On the commencement of every suit or matter - On setting down any matter for hearing - - - On application for final decree or decretal order £ s. d. 10 1 1 30 & 31 VICT. Cap. 142. An Aet to amend the Acts relating to the Jurisdiction of the County Courts. [20th August, 1867.] 1. A plaint may be entered in the county court within the district where summons of which the defendant or one of the defendants shall dwell or carry may issue, on his business at the time of bringing the action or suit, or it may be entered, by leave of the judge or registrar, in the county court within the district of which the defendant or one of the defendants dwelt or carried on business, at any time within six calendar months next before the time of action or suit brought, or, with the like leave, in the county court in the district of which the cause of action or suit wholly or in part arose. « * * * * I" s3 238 Appendix. Proeecriings in g. Where any suit or proceeding shall be pendinff in the Hig-h fransLTed ?o Court of Chancery, which suit or proceeding might have been com- comity couru menced in a county court, it shall be lawful for any of the parties which might thereto to apply at chambers to the judge to whose court the said Vherei^."""^" suit .or proceeding 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, or without such application, if he shall see fit, 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, and the parties thereto shall have the same right of appeal that they would have had had the suit or proceeding been commenced in the county court. 9. fSee ante, 28 & 39 Vict. cap. 99, s. 1, cl. 4. » » m • * * Court may award i4_ Whenever an action or suit is brought in a county court !i°8tt»"ck'out fof wl'ich the court has no jurisdiction to try, the judge shall order want of juris- the cause to be struck our, and shall, unless the parties consent to diction. ^jje court having juri-diction to tiy the same, have power to award costs in the same manner, to the same extent, a,nd recoverable in the same manner, as if the court had jurisdiction in the matter of such plaint, and the plaintiff had not appeared, or had appeared and failed to prove his demand. Scale of costs to i5_ The judges of the county courts appointed or to be appointed fudges?"'' '"'' "" "jy the Lord Chancellor from time to time to frame rules and orders for regulating the practice of the courts and forms of proceeding therein under the thirty-second section of "The County Courts Act, 1856," shall be empowered to frame a scale of costs and charges to be paid to counsel and attorneys with respect to all proceed- ings which are herein authorized to be taken, or with respect to proceedings in plaints for the recovery of tenements, or in actions of replevin, and from time to time to amend such scale ; and such scale or amended scale, certified under the hands of such judges, or any three or more of them, shall be submitted to the Lord Chancellor, who from time to time may allow or disallow or alter the same, and the scale or amended scale so allowed or altered shall, from a day to be named by the Lord Chancellor, be in force in every county court. Judges to ic 20. Any judge of county courts shall be capable of acting for any auxiliary ^o^one other judge of county courts in or without the districts presided over deputy of judge by Such judge, and the deputy of a judge of county courts or regis- onegistrarto trar, duly appointed, shall have all the powers and privileges and powere'ofhis perform all the duties of the judge or registrar for whom he shall principal. have been so appointed which have been given or shall be given to such judge or registrar by any Act passed or to be passed, anything to the contrary notwithstanding ; and where, in the absence of a judge, a deputy of such judge shall, from illness or otherwise, be incapable of performing his duties as such deputy, it shall be lawful for the Lord Chancellor to appoint another person, duly qualified, to be the deputy of such judge. Trustees may pay 24. Any monies, annuities, stocks, or securities vested in any transf^stocit" persons as trustees, executors, administrators, or otherwise, upon and securities trusts within the meaning of an Act passed in the session of par- jnto the court, liament holden in the tenth and eleventh years of the reign of her 30 ^ 31 Vict. Cap. 142. 239 present Majesty, chapter ninety-six, " for better securing Trust Funds, and for the Belief of Trustees," where the same does not exceed in amount or value the sum of five hundred pounds, upon the filing by such trustees or other persons, or the major part of them, to or with the registrar of the county court within the district of which such persons or any of them shall reside, an affidavit shortly describing the instrument creating the trust according to the best of their knowledge, may in the case of money be paid into a post office savings bank established in the town in which the county court is held in the name of the registrar of such court, in trust to attend the orders of the court, and upon such persons tiling with the registrar the receipt or other document given to them by the officer of the said bank the registrar shall record the same, and give to them an acknowledgment in such form as may be directed by any rule of practice, which acknowledgment shall be a sufficient dis- charge to such persons for the money so paid, and in the case of stocks or securities may be transferred or deposited into or in the names of the treasurer and registrars of such court, in trust to attend the orders of the court, and the certificate of the proper officer of the transfer or deposit of such stocks or securities shall be a sufficient discharge to such persons for the stocks or securities so transferred or deposited ; provided that where there is not a treasurer a person shall be nominated by rule of practice to whom the transfer or deposit in conjunction with the registrar may be made. 25. For the purposes of the last section all the powers and authorities Extension of given to the court of Chancery by the Act passed in the session of p™"i,y parliament holden in the twelfth and thirteenth years of the reign of 12 & is Vict. Her present Majesty, chapter seventy-four, " for the further Belief"- '*■ '° of Ti-ustees," shall be possessed and exercised by the county courts, chancery and any order made by virtue of such powers and authorities shall to county fully protect and indemnify all persons acting under or in pursuance ™'""- of such order. 26. Any money paid into a county court in equitable proceedings Monies paid shall, unless otherwise ordered by the court, be invested by the re- into a county gistrar of the court in his name as registrar, within forty-eight hours eq"tabie of its payment into court, in a post office savings bank established proceedings in the town in which the court is held, without restriction as to UJyJsJ'/j ;„ ^ amount, and without the declaration required of a depositor in a post office savings bank ; and no part of any money invested in a post office savings savings bank under this Act shall be paid out to any registrar, except "" " upon an authority addiessed to the postmaster general by the com- missioners of Her Majesty's treasury. 27. Any proceeding taken in the county courts imder " The County proceedings Courts Act, 1865," conferring an equitable jurisdiction on such courts, inequity may, if so directed by rules and orders to be made under such Act, be "iSmenced commenced by summons. _ ty summons. 28. From and after the passing of this Act no action or suit which no action or can now be brought in any county court shall henceforth be commenced suit to be or be maintainable in any hundred or other inferior court not being a ,?°"^y™u'*. court of record ; and every person who is legally entitled to any fran- drcd or chise or office in or in respect of any of the said courts, the value of fl^^J^^^^ which shall be diminished or taken away by the operation of this Act, po,?crTo" shall be entitled to make a claim for compensation to the commis- certain per- sioners of Her Majesty's treasury within twelve months after the e?aim"'t"°''* passing of this Act; and the said commissioners, in such manner as compensa- they shall think fit, may inquire what was the nature of the franchise ''""• 240 Appendix Where action un- necessarily brouglit in an inferior conrt, only county court costs to be allowed. High bailiff may inter- plead where claims as to goods fallen in execution are made. City of London court. Tliis Act and other counry courts Arts to be construed together. Meaning of the words " County Court" in this and future Acts, and shall or office, and what was the tenure thereof, and what were the lawful fees and emoluments in respect of which such compensation should be allowed ; and the said commissioners in each case shall award such compensation as they shall think just, upon consideration of the special circumstances of each case : Provided that if any person so compensated accepts any public employment, he shall, during the continuance of such emplo3-ment, receive only so much (if any) of compensation as, with the remuneration for that empolyment, will equal such compensation ; and the several compensations herein-be- fore granted shall be paid out of monies to be voted by parliament, and the commissioners of Her Majesty's treasury of the said United Kingdom are hereby authorized to pay the same accordingly. 29. Where any action or suit shall be brought in any other court than the superior courts of law which could have been brought in a county court, and the verdict recovered is for a less sum than ten pounds, the plaintiff shall not recover from the defendant a greater amount of costs than he would have been allowed if the action or suit had been brought in such county court, unless the judg^ shall certify that the action or suit was a iit one to be brought in such other court. 31. If any claim shall be made to or in respect of any goods or chattels taken in execution under the process of a county court, or in respect of the proceeds or value thereof, by any person, it shall be lawful for the registrar of the court, upon application of the high bailiff, as well before as after any action brought against him, to issue a summons calling before the said court as well the party issuing such process as the party making such claim, and the judge of the court shall adjudicate upon such claim, and make such order between the parties in respect thereof, and of the costs of the proceedings, as to him shall seem tit, and shall also adjudicate between such parties, or either of them, and the high bailiff, with respect to any damage or claim of or to damages arising or capable of arising out of the execu- tion of such process by the high bailiff, and make such order in respect thereof, and of the costs of the proceedings, as to him shall seem fit ; and such orders shall be enforced in like manner as any order in any suit brought in such court, and shall be final and conclusive as between the parties, and as between them, or either of them, and the high bailiff, unless the decision of the court shall be in either case appealed from, and upon the issue of the summons any action which shall have been brought in any court in respect of such claim, or of any damage arising out of the execution of such process, shall be stayed. 3-2. The section numbered twenty-six in " The County Courts Act, 1856," shall extend and apply to the city of London court. 34. This Act, and the several Acts specified in schedule (D.) to this Act, shall, except such provisions of the same Act« respectively as are hereby repealed, be construed together as one Act, and may be re- spectively cited for all purposes by the short titles respectively given to them in such schedule, and this Act may be cited for all purposes as " The County Courts Act, 1867.'* 35. The words " County Court," when used in this Act or in any future Act, shall mean a court holden by virtue of the Act passed in the session of parhament holden in the ninth and tenth years of the reign of Her present Majesty, chapter ninety-five, " for the more 30 §- 31 Vict. Cap. 142. 241 easy Recovery of Small Debts and Demands in England," and shall include the ciiy mean and include the courts held by virtue of " The London (City) of London Small Debts Extension Act, 1852," unless otherwise provided, and °'""''" such courts shall be holden by the name of " The City of London Court," and shall be a court of record, and its decisions shall be sub- ject to appeal in the same way and on the same conditions as the decisions of a county court are subject for the time being. The rules and orders in force for the time being for regulating the practice of and costs in the county courts, and forms of proceedings therein, shall be in force m " The City of London Court," to the exclusion of any rules and orders now in force in that court ; and the sam-e fees shall be taken for proceedings in which jurisdiction i« hereby given to the court as upon similar proceedings in the county courts, and such fees shall be apphed in the same manner as the fees taken under the pro- visions of the said Act of 1852 : Provided that nothing in this Act, or in any of the Acts specified in schedule (D.) to this Act, shall take away, lessen, or diminish any of the powers, rights, or privileges of the judge of the said court, or the authority of the mayor, aldermen, and commons of the city of Loudon in common council assembled in relation to such court, or to the judge or officers thereof, or to the fees taken therein, as such powers or authority existed previously to the passing of this Act. ■ 36. This Act shall come into operation on the first day of January Commence- aeit after the passing hereof. '"™' °' ■*°'' PART II. CHAPTER I. JURISDICTION AND PROCEDURE ACTS, [EQUITABLE.] 13 & U VICT. Cap. 35. An Act to diminish the Delay and Expense of Proceedings in the High Court of Chancery in England. [15th July, 1850.J Whbkeas proceedings in the High Court of Chancery in England are attended with great delay and expense, which it is expedient to diminish : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assemb'ed, and by the authority of the same, that it shall be lawful for persons interested or claiming to be interested in any question cognizable in folw^^nteSed the said court as to the construction of 'any Act of parliament, will, in questions cog- deed, or other instrument in writing, or any article, clause, matter, "j''cha°„c"rv'to'' or thing therein contained, or as to the title or evidence of title to any suie special real or personal estate contracted to be sold or othewise dealt with, or case* t°^ «■"; as to the parties to or the form of any deed or instrument for carrying "JJ,"'™ "' " any such contract into effect, or as to any other matter falling within the original jurisdiction of the said court as a court of equity, or made subject to the jurisdiction or authority of the said court by any statute not being one of the statutes relating to bankrupts, and includ- ing among such persons all lunatics, married women, and infants, in the manner and under the restrictions hereinafter contained, to concur in stating such question in the form of a special case for the opinion of the said court, and it shall also be lawful for all executors, administrators, and trustees to concur in such case. 2. And be it enacted, that the committee of the estate of any lunatic how lunatic interested or claiming to be interested in any such question as afore- may concur. said may, after having been authorized in that behalf by the Lord Chancellor, concur in such case in his own name and in the name and on the behalf of the lunatic. 244 Appendix. How married 3. And be it enacted, that a husband interested or claiming to be CTn°™.™*^ interested in right of his wife in any such question as aforesaid may concur in such case in his own name and in the name of his wife wh ere the wife has no clai ra to any interest distinct from her husband, and that a married woman having or claiming any interest in any such question as aforesaid distinct from her husband may in her own right concur in such case, provided that her husband also concurs^ therein. TOncur"'™' ™^^ ■*• ^^^ ^^ ^* enacted, that the guardian of any infant interested or •claiming to be interested in any such question as aforesaid may concur in such case in the name and on thebehalf of the infant, unless such guardian has an interest in such question adverse to the interest of the mfant therein. CTMa^aiTto be ^' -^^ ^^ '* enacted, that it shall be lawful for the said court, by appointed for a Order to be made in the matter of any lunatic not found such by lunatic not found inquisition, or, in the matter of any infant, upon the application of mission, and'f or ^^J I^erson on the behalf of such lunatic, or upon the application of Infant. such infant, by motion or petition, to appoint any person shown by affidavit to be a fit person, and to have no interest adverse to the interest of the lunatic or infant, to be the special guardian of such lunatic or infant for the purpose of concurring in such case, in th« name and on behalf of the lunatic or infant, and any such person so appointed may lawfully so concur : Provided always, that it shall be lawful for the said court to require notice of such application to be given to such person, if any, as the court shall think fit. siwciai'guMdUn' ^- ^^^ ^^ '' enacted, that in any case in which any such order as of an infant may aforesaid shall havc been made by the said court in the matter of any be discharged by infant without notice to the guardian of the infant, it shall be lawful witiiout notice. ^°^ ^^ 8*id Court, if it shall think fit so to do, to discharge such order, upon the application of such guardian, by motion or petition ; and the said court, if it shall think fit, may thereupon appoint some other fit person to be the special guardian of such infant tor the pui-pose of such special case, and may also give such directions as may be neces- sary for substituting in such special case either the name of the guardian so applying, or of the special guardian so appointed in lieu of the name of the special guardian so displaced : Provided always, that the discbarge of any order appointing a special guardian shall not invalidate anything which shall in the meantime have been done by such special guardian, unless the court shall, upon notice to all parties, specially so direct. ^^daTcI^es to ''' ' ^^^ ^^ '* enacted, that every such special case shall be entitled *e entitled. as a cause between some or one of the parties interested or claiming to be interested as plaintiffs or plaintiff and the others or other of them as defendants or defendant ; and that in the title to such cases lunatics and infants shall be described as such, and their committees, guardians, or special guardians named ; and that where in any such case a married woman is named as a plaintiff and her husband as a defendant thereto, a next friend of such married woman shall be named in the title to such case. Form of special 8. And be it enacted, that every such special case shall concisely state such facts and documents as may be necessary to enable the court to decide the question raised thereby ; and that upon the hearing of such case the court and the parties shall be at liberty to refer to the whole contents of such documents ; and the court shall be at libei-ty to draw from the facts and documents stated in any such 13 Sr 14 Vict. Cap. 35. 245 special case anjr inference which the court might have drawn there- ffom if proved in a cause. 9. And be it enacted, that every such special case to which an Special caae to infant or lunatic is a party by his guardian or spetial guardian shall ^^^^ ""cOTs^itu'ted also state how such guardian or special guardian was constituted; and the con- ' and that where any married woman having or claiming any interest currence of mar- distinct from her husband is a party to such case, it shall be stated "°* women, therein that she concurs in such case in her own right. 10. And be it enacted, that every such special case shall be signed jj"";'*} "H'^ *° by counsel for aU parties, and shall be filed in the same manner as counsel! and bills are tiled, and that the defendants mav appear thereto in the filed, and ap- same manner as defendants appear to bills'; and that no defendant ?n?Ired"by "de- shall be required to take an ofBce copy of a special case, but an office (endants. copy thereof shall be taken by the plaintiif. 11. And be it enacted, that after a special case shall have been After a special filed, and the defendants shall have appeared thereto, all the paities case died, parties to such special case shall be subject to the jurisdiction of the court in s?a*|ment"''after the same manner as if the plaintiff in the special case had filed a bill defendants have against the parties named as defendants thereto, and such defendants appeared, except had appeared to such bill ; and upon the special case being filed, and imams, and™""' appearances entered thereto as aforesaid, all parties to such special lunatics, wiio are case, other than married women, infants, and lunatics, shall, for the ^°^ lea've'eiven purposes of such special case, be bound by the statements therein ; by court to se" and that mai-ried women, infants, and lunatics made parties to a i' down, special case shall, for the purposes of such special case, be bound by the statements therein, when, and not before, leave shall have been given by the court to set down such special case in manner herein- after provided. 12. And be it enacted, that so soon as all the defendants shall have How case to be ' appeared to the special case the same may, subject to the provisions |fej^°""' '"'' hereinafter contained, be set down for hearing, and subpoenas to hear judgment issued and served according to the practice of the said court. 13. And be it enacted, that when any married woman, infant, or when a married lunatic is party to a special case, application may be made to the woman, infant, court by motion for leave to set down the same, of which motion part}"appiication notice shall be given to every party to such case in whom, as executor, to be made to the administrator, or trustee, any property in question therein is or is "™f' ''°'" '^^'^ '" alleged to be vested in trust for or for the benefit of such married down, woman, infant, or lunatic, and also, if such application be not made by or on behalf of such married woman, infant, or lunatic, to such married woman and her husband, or to such infant, or to such lunatic and his committee, if any, as the case may be ; and that upon the hearing of such motion the said court may give leave to set down such ca.se, if it shall be of opinion that it is proper that the question raised therein shall be determined thereon, and shall be satisfied by aifidavit or other sufficient evidence that the statements contained therein, so far as the same affect the interest of such married woman, infant, or lunatic, are true, but otherwise may refuse such application : Provided always, that in case the said court, upon the hearing of such apphcation, shall be of opinion that it is proper that the question raised in such case shall be determined thereon, but shall not be satisfied that the statements contained therein, so far as they affect the interest of such married woman, infant, or lunatic, are true, it shall be lawful for the said court to refer it to one of the masters thereof to make such inquiries as to the court shall seem proper, and 246 Upon heafing, court to deter- mine question, and Toake decla* ration. Proviso that a case may be sent to common law court. Proviso that court may refuse to decide. Protection to be afforded to trus- tees by declara- tion. The court may suspend the acting upon declaration. Special case to be a lis pendens, and may be re- gistered. 2 & 3 Vict. c. 11. Mode of identi- fying documents, and court may order production. Appendiic. upon further application being made, by motion as aforesaid, upon the said master's report, to give or refuse leave to set down such case as to the said court shall seem fit. 14. And be it enacted, that it shall be lawful for the said court, upon the hearing of any puch special case as aforesaid, to determine the questions raised therein or any of them, and by decree to declare its opinion thereon, and, so far as the case shall admit of the same, upon the right involved therein, without proceeding to administer any relief consequent upon such declaration ; and that every such decla- ration of the said court, contained in any such decree shall have the same force and effect as such declaration would have had, and shall be binding to the same extent as such declaration would have been, if contained in a decree made in a suit between the same parties in- stituted by Bill : provided always, that it shall be lawful for the said court, if it shall see fit so to do, before proceeding to make such decree as aforesaid, to send any case or cases for the opinion of any of Her Majesty's courts of common law, reserving the consideration of all further directions and of the costs, and to make such decree as afore- said upon such further directions ; provided also, that if upon the hearing of such special case as aforesaid the court shall be of opi- nion that the questions raised thereby or any of them cannot pro- perly be decided upon such case, the said court may refuse to decide the same. 15. And be it enacted, that every executor, administrator, trustee, or other person making any payment or doing any act in conformity with the declaration contained in any decree made upon a special case shall in all respects be as faUy and effectually protected and indem- nified by such declaration as if such payment had been made or act done under or in pursuance of the express order of the said court made in a suit between the same parties instituted by bill, save only as to any * rights or claims of any person in respect of matters not determined by such declaration. 16. And be it enacted, that where any person shall be desirous to have a special case re-heard, or to appeal from the decision thereon, it shall be lawful for the said court, upon application for that purpose, either at the time of the decree upon such special case being made or at any time afterwards, and upon such conditions, if any, as the court shall think fit, to order that the declaration contained in such decree shall not be acted upon for such time as the said court shall think just. 17. And be it enacted, that the filing of a special case, and the entering of appearances thereto by the persons named as defendants therein, shall be taken to be a hs pendens, and may be registered under the provisions of an Act made and passsed in the second year of the reign of Her present Majesty, intituled "An Act for the better Protection of Purchasers against Judgments, Crown Debts, Lis pen- dens, and Fiats in Bankruptcy," in like manner as any other lis pen- dens in a court of equity may now be so registered, and, unless and until so registered, shall not bind a purchaser or mortgagee without express notice thereof. 18. And be it enacted, that any documents referred to in a special case, and any copies thereof or extracts therefrom, identified by the signature of the solicitors for all parties or of the London agents of such solicitors, may be produced and read at the hearing of such case, without further proof; and that it shall be lawful for the said court, at any time after the filing of the special case, and the en- 13 ^ 14 Vict. Cap. 35. 247 tering' of appearances thereto by the persons named as defendants therein, to order any document which may be admitted thereby to be in the possession of any party to such case to be deposited and produced in such manner and for such purposes as the court shall think fit. 19. And whereas it is expedient to provide means for enabling court, on appii- executors or administrators of deceased persons to ascertain whether nation of execu- there are any outstanding debts or liabilities affecting the personal irators, may by estates of such persons, without the delay and expense of suits to order of course administer such estates : Be it therefore enacted, that it shall be lawful JeJI^J^j J'^^ for the said court, upon the application of the executors or adminis- master to take an trators of any deceased person, by order to be made upon motion or ^° j°]'."L,°^. ''"'''' petition of course, and to be in the form or to the effect set forth in the schedule hereto, with such variations as circumstances may re- quire, to refer it to one of the masters of the said court to take an account of the debts and liabilities affecting the personal estate of such deceased person, and to report thereon : provided always, that no such order shall be made until the expiration of one year next after the death of such deceased person, or pending any proceedings to administer the estate of such person, and that in case at any time after the making of such order any decree or order for administering the estate of such deceased person shall be made, it shall be lawful for the said court by such decree or order to stay or suspend the pro- ceedings under such order of course on such terms and conditions, if any, as to the said court shall seem just. 20. And be it enacted, that it shall be lawful for any person who Master's report may have come in before the master under any such order, and ""^ ^^ objected claimed to be a creditor upon the estate of the deceased person, or to j^e co"t, of" ° have any demand upon such estate by reason of any liability, and winch notice whose debt or claim may not have been wholly allowed by the said ^''^" '^ s'"™- master, to apply to the said court by motion, of which notice shall be given within fourteen days after the filing of the master's report, to have such claim allowed by the court, either wholly or partially ; and it shall be lawful for the said executors or administrators, and for any creditor of the deceased person who may be authorized by special leave of the said court so to do, to apply to the said court by motion, of which notice shall be given within the time aforesaid, to have any debt or claim allowed by the said master disallowed by the court, either wholly or partially ; and at the expiration of fourteen days after the fifing of the said report the same shall, except as to any debt or claim as to which any such notice as aforesaid may have been given, be absolute, as if the same had been confirmed by order of the court. 21. And be it enacted, that upon the hearing of any such motion Proceeding of as aforesaid the said court may either dismiss such motion, or may ^^i?™"" °°'"='' order the debt or claim to which such motion relates to be allowed or disallowed, as the case may be, and either wholly or partially, or may direct further inquiry or further proceedings, by way of action or otherwise, touching such debt or claim, and after such inquiry or pro- ceedings may, upon further motion, deal with such debt or claim as to the said court shall seem just : provided always, that no new evi- dence shall be received by the said court upon the hearing of any such motion without special leave of the said court. 2-2 And be it enacted, that in case any debt or any certain habihty if debts or eer- shall have been allowed as aforesaid, and shall not within fourteen ^J.'jf'^J^'i'" days after the report has become absolute as to such debt or hability, „ot paid or 248 Appendix. provided for, Older may be made for pay- ment or ac- counts. Court, on appli- cation of exe- cutors or administrators, may direct ap- propriation of money to answer contingent liability. Court may restrain pro- ceedings against executors and administrators. Protection to be afforded to Exe- cutors and admlBistrators. or after the same ahall have been allowed by the said court, be paid or provided for by appropriation to the satisfaction of the person who has estabUshed such liability, it shall be lawful for the said court, by order, to be made, in case of any debt remaining due, upon the ap- plication by motion or petition of the person to whom the debt remains due, and on notice to the executors or administrators, and in case of any certain liability remaining unprovided for by appropriation, upon the application by motion or petition of the person by whom such liability has been established, or of the executors or administrators, and on notice by the party applying' to the other of them, to order payment of the debts which may have been allowed and remain unpaid, and to provide for the certain liabilities which may have been allowed and remain unprovided for, in like manner as the same could or might have been paid or provided for in a suit for that purpose instituted by bill, or to refer it to the master to take an account of the debts and certain liabilities allowed as aforesaid which remain unpaid or unpro- vided for, and also the usual accounts of the personal estate of the deceased person, with all usual and proper directions ; and every such order shall have the same force and effect and shall be prosecuted and carried on in like manner as a decree in a creditor's suit instituted by bill. 23. And be it enacted, that in case any contingent liability shall be allowed by the said report or by the said court, it shall be lawful for the said court, by order, to be made upon the application of the executors or administrators, by motion or petition, on notice to the person who may have established such contingent liability, to order such sum of money, part of the estate of the deceased person, as to the said court shall seem just, to be set apart and appropriated for answering such contingent liability, and to give such directions as the said court shall think fit touching the payment of such sum of money into court, and the investment thereof, and the payment, application, or accu- mulation of the interest or dividends thereof in the meantime and until the same shall be required to answer such hability, and when such liabihty shall be ascertained or determined to give such direc- tions as to the payment of such sum out of court as the said court shall deem right : provided always, that no order to be made as afore- said shall in any manner bind the assets so appropriated as against the persons entitled to the estate of the deceased subject to the con- tingent liability ; and any person interested in such appropriated assets may apply to the court touching the same as he may be advised. 24. And be it enacted, that after the filing of such report as afore- said it shall be lawful for the said court, upon the application of the executors or administrators of the deceased, by order, to be made on motion, to restrain by injunction any proceedings at law against them by any person having or claiming to have any demand upon the estate of the deceased by reason of any debt or liability, other than the persons who may have established contingent liabilities under the said order for which no appropriation may have been made. 25. And be it enacted, that in case no debt or liability, or no debt or liability other than a contingent liability, shall have been allowed as aforesaid, or in case any debt or liability other than as aforesaid ahall have been allowed as aforesaid, then after the same shall have been paid or provided for by appropriation as aforesaid, all payments made by the executors or administrators, for any of them, on account 13 ^ 14 Vict. Cap. 35. 349 of the estate of the deceased person, and all dispositions of such assets made by them or any of them on account of such estate, shall, as against all persons having- or claiming to have any demand upon such estate By reason of any debt or liability, other tltian persons who may have established under the said order any contingent liability for which no such appropriation as aforesaid may have been made, be as good and effectual as if the same had been made under a decree of the said court : provided always, that nothing herein contained shall in any manner affect or prejudice the rights of any creditor or other person having any demand or claim upon the estate of the deceased against any assets so paid or disposed of, or against the persons to whom such payment or disposition may have been made, or against any assets appropriated under the provisions of this Act, and the appropriation of which, if made under a decree of the said court in a suit to which he was not a party, would not have been binding upon him. 26. And whereas by an Act passed in the third and fourth years Notwithstandin of the reign of his late Majesty King William the Fourth, intituled ^"i^i^^f^^ " An Act for the Regulation of the Proceedings and Practice of certain 94, judges of ' Offices of the High Court of Chancery in England," it is enacted, "'« ^o'"'' ">»? "That the Masters in Ordmary of the High Court of Chancery shaU ™?ne IptSioD. hear and determine all applications for time to plead, answer, or mentioned in demur, and for leave to amend Bills, and for enlarging publication, H^'t'flt'^^^ and all such other matters relating to the conduct of suits in the said Court as the Lord Chancellor, with the advice and assistance of the Master of the Rolls and Vice Chancellor, or one of them, shall by any general order or orders direct, in such manner and under such rules and regulations as by any general order or orders, to be also issued by the Lord Chancellor, with the advice and assistance afore- said, shall be directed, and that it shall be lawful for either party to appeal by motion from the order made on such application to the Lord Chancellor, Master of the Rolls, or Vice Chancellor, and that the order made on such appeal shall be final and conclusive ;" and it is enacted, " That no such application as above mentioned shall in future be heard by any of the judges of the* said Court of Chancery, except on appeal as hereinbefore provided :" And whereas the last- meniioned enactment has been found to be inconvenient : Be it therefore enacted, that, notwithstanding the provisions of the said Act, it shall be lawful for any of the judges of the said Court to hear and determine any such apphcation as mentioned in the said Act in the first instance, if under special circumstances he shall think fit so to do. 27. And be it enacted, that all exceptions for scandal, impertin- Exception! ence, and insufficiency, which according to the existing practice of fm'^rt"„''e''^ee^ the said court are referred to the Masters of the said court, shall and inBufflcie'ncy not any longer be so referred, but shall be heard and determined by *° jf, ''*'"'*( the said court in the first instance. 28. And be it enacted. That, notwithstanding any rule or practice Power for of the said court to the contrary, it shall be lawful for the said ^""h'landVng comi; at the hearing of any cause or of any further directions any mie, &e. therein, to receive proof by affidavit of all proper parties being before J° f^^^""""^"^' the court, and of all such matters as are necessary to be proved for proof by- enabling the said Court to order jpayment of any monies belonging to affidavit, any married woman, and of all such other matters not directly in issue in the cause as in the opinion of the said court may safely and properly be so proved. 250 Appendix. Decrees and orders to be subject to appeal, &c, Interpretation of terms. Goramencement of Act 33. And be it enacted, that all decrees and orders made under the provisions of this Act shall be subject to re-hearing', appeal, and review, and may be discharged and varied, in the same and the like manner as decrees and orders of the said court made in suits instituted by Bill. 34. And be it enacted, that the following words and expressions in this Act shall have the several meanings hereby assigned to them, unless thei-e be something either in the subject or the context repug- nant to such construction : Words importing the singular number only shall include the plural number, and words importing the plural number only shall include the singular number : Words importing the masculine gender only shall include females : The expression " Lord Chancellor " shall mean and include the Lord Chancellor, Lord Keeper and Lords Commissioners of the Great Seal of the United Kingdom for the time being : The word " Master " shall mean Master in Ordinary of the High Court of Chancery in England : The word " Lunatic " shall include idiots and persons of unsound mind, and whether found such by inquisition or not : The word " Guardian " shall mean father or testamentary gaardian, or guardian appointed by the Court of Chancery (not being a special guardian appointed under the provisions of this Act). 35. And be it enacted. That this Act shaU commence and take effect from and after the first day of November one thousand eight hundred and fifty. SCHEDULE referred to by the foregoing Act. \Date:\ In the matter oi A.3. late of county of may ie,] deceased. in the banker, [or as the case Upon motion this day made unto this court by Mr. of counsel for CD. of the executor for administrator] of the above-named A.B. [or upon the humble petition of C. D. of the executor (or administrator) of the said A. B., this day preferred unto the right honourable the Master of the Rolls for the reasons therein contained], it is ordered, [that it be referred to the master of this court in rotation to take an account of the debts and liabilities affecting the personal estate of the said A. B., and to compute interest on such of the said debts and liabilities as caiTy interest after the rate of interest the same respectively carry ; and the said master is to cause an advertisement to be pub- lished in the London Gazette and such other public papers as he shall think fit for the persons claiming in respect of any such debts or liabilities to come in before the said master, and prove their debts and claims, and he is to fix a peremptory day for that purpose ; and. 15 8f 16 Vict. Cap. 80. 251 such of the said creditors as shall not come in and prove their debts and claims by the time so to be limited are to be excluded the benefit of this order : and it is ordered, that the said master do distinguish debts from liabilities, and liabilities certain from liabilities contingent : and it is ordered, that the personal estate of the said A.B. be applied in payment and satisfaction of such debts and liabilities of the said A. B.in a due course of administration ; and for the better taking the said accounts and discovery of the matters aforesaid the parties are to produce before the said master, upon oath, all deeds, books, papers, and writings in their custody or power relating thereto, and are to be examined upon interrogatories as the said master shall direct ; and any of the partif s are to be at liberty to apply to the court as there shall be occaaan. 15 & 1(1 VICT. Cap. 80. An Act to abolhh the Office of Master in Ordinary of the High Cuurt of Chancery, and to vtake P rovision for the more speedy and efficient Despatch of Business in the iuid Court. [30th June, 1862.] IJ. From and aiter the first day of Michaelmas term, one thou- Power to Master sand eight hundred and fifty-two, it shall be lawful for the Master of "'*^ ^""= """i the Rolls and the Vice-chancellors for the time being and they are ,„ ,Ta?Xmbe« hereby required to sit at chambers for the dfspatch of such part of for the despatch tlie business of the ..^aid court as can, without detriment to the public "'""'*>">e6»> *"" advantage arising from the discu,ision of questions in open court, be heard in chambers, according to the directions hereinafter in that behalf specified or referred to ; and the times at and during which they respectively shall so sit shall be from time to time fixed by them respectively. ****** 13. The Master of the Rolls and every of the Vice-chancellors re- judges to have spectively when sitting in chambers shall have the same power and ?»™e power and jurisdiction in respect of the business to be brought helbre them, as if ipen'^coiir" ^' '" they were respectively sitting in open court. 14. The orders made by the Master of the Rolls and Vice-chancellors Orders made in respectively when sitting in chambers shall ordinarily be drawn up cijombers to be there hy their respective clerks, tu be appointed as hereinafter-men- "p {JJfjlJdge™"" tioiied, but with power to each of .such judges to direct any of such cirrks, but judges orders to be drawn up bv the registrar of the said court in like SY„ "!,"''"' "'°°' 1 1 *i ' . T /■ 1 -1 • , to be drawn up manner as orders made by a judge or the said court in open court are by registrars of drawn up, for which purpose the registrars of the said court shall, "'" oourt, and when required, attend the.Master of the KoUs and the Vice-chancellors thefr a'tend^nce respectively when sitting at chambers in such order and manner as at chambers for shall be found most convenient for furthering the business of the said ""* purpose. court, and as the lord chancellor, with the concurrence of the Master of the Rolls and Vice-chancellors, or any two of them, shall from time to time by any general order direct. 15. All orders of the Master of the Rolls or of any Vice-chancellor, orders made nt made by him at chambers, shall have the force and effect of orders of =''""''""■'' '" '"'''' T 252 Appendw. same force as the coui't of Chanceiy, and such orders may be signed and enrolled orders of court, j„ 2ike manner. Business lobe 26. The business to be disposed of by the Master of the Rolls and chamte1-s°by'the Vice-chancellors re.ipectively while sitting at chambers shall consist judges. of such of the following matters as the judge shall from time to time think may be more conveniently disposed of in chambers than in open court ; videlicjt, applications for time to pleadj.answer or demur ; for leave to amend bills or claims ; for enlarging publication ; and also applications for the production of documents ; applications relating to the conduct of suits or matters; applications as to the guardiaiiship and maintenance of infants ; matters connected with the manage- ment of property ; and such other matters as each such judge may from time to time see fit, or as may from time to time be directed by any general order of the Lord Chancellor. Judges mny ad- 27. It shall be lawful for the Master of the Rolls and every of the couruocham-" Vice- chanecllors respectively when sitting in open court to adjourn bere, and trice for Consideration in chambers any matter which, in the opinion of vend, for i\ie s,uch judge, may be more conveniently disposed of in chambers, or, any'matJer™ ° when sitting in chambers to direct any matter to be heard in open court which he may think ought to be so heard. MedinB'bSe '^'*- '^'^^ ^°^^ of proceeding before the Master of the Rolls and Viee- judges at cham- chancellors I'espectively at chambers shall be by summons, and bers to be by as near as may be according to the form now adopted by the jijid^e» common' aw.^' °^ *^^ Superior courts of common law when sitting at chambers. Power to the ~^' ■^■''"" "'"^ after the first day of Michaelmas term, one thou- judges to direct sand eight hundred and flftj'-two, the Master of the Rolls and the "■"^J """«'■»■ ^«- Vice-chancellors respectively shall have tlie sole power (subject to any and ini^esMgaicd ''"'*^' which may be made by the Lord Chancellor with the advice and by themselves, assistance of them or any two of them) to order what mattere and ihcir"^hief'derits ^^^S^ s^"^' ""^ investigated by and before their respective chief ■ clerks, either with or without their direction, during their pro- gress, and what matters and things shall be heard and investigated , by themselves; and particularly, if the judge shall so direct, his chief clerks respectively shall take accounts, and make such inquiries as have usually been prosecuted before the chief clerks of the present- Hlght to suitor masters; and the judge shall give such aid and directions in every or point before the ^"^ ^"'•'^ account Or inquiry as he may think proper, but subject jvidge. nevertheless to the rio^ht hereinafter provided for the suitor to bring liny particular point before the judge himself. Power to chief .30. Each cliief clerk shall, for the purpose of any proceedings' clerks to i.-sue directed by the Master of the Rolls or any Vice-chancellor to be taktn anr'ummomes ^^^'°^^ I''™' have full power to issue advertisements, to summon to administer ' parties and witnesses, to administer oaths, to take afSdavits and •"ud''e'st%d'"" '"^''"°^'^'^^™*"*''' °'-^^' than acknowledgments by married women, judges ja 1- jy receive affirmations, and when so directed by the judge to whose court he is attached, to examine parties and witnesses either upon in- terrogatories or vivd voce, as such iudge shall direct. Pcrties, ice. not 31. Parties and witnesses, so summoned shall be bound to attend in to props'; of "'n-P"""''"'^^ of any such summon.^, and shall be liable to process of con- tempt and to tempt, in like manner as parties or witnesse:< are now liable thereto penalties for false in case of disobedience to any order of the said court, or in case of swearmg, &c. defatilt in attendance, in pursuance of any order of the said court, or ' of any writ of subpcBna ad testificandum ; and all persons swearing or affirming before any such chief clerk shall be liable to all such penalties, punishments and consequences for any wilful and corrupt false swearing or affirming contained therein as if the mattera sworn 15 ^ 16 Vict. Cap. 80. 253 or affirmed had been sworn and affirmed before any person now by law authorized to administer oaths, to take affidavits, and to receive affirmations. .32. The directions to be given by the Master of the Rolls or any Result of pro- Vice-chancellor for or touching' any proceedings before his chief clerk ^edings before shall require no pai'ticular form, but the result of such proceedings embodied in forrii shall be stated in the shape of a short certificate to the judge, and of short certifl- shall not be embodied in a formal report, unless in any case the judg'e '^'''^' *'"• shall see lit so to direct; and when the judge shall approve of such ceititiciite or report he shall sign the same in testimony of his adopt- ing the same. 33. No exceptions shall Ife to any ceititicate or report of the chief No exceptions clerk, although signed and adopted by the judge; but any party J°'^°^^ '"'"'''■ shall, either during the proceedings before such chief clerk, or within ' such time after such proceedings shall have been concluded, and Parties at liberty before the certificate or report shall have been signed and adopted, as '° ."J" "Pinion the Lord Chancellor shall by any general order diiect, be at liberty to Sny^particula" take the opinion of the judge upon any pai-ticular point or matter point. arising in the course of the proceedings, or ui]on the i-esult of the whole proceeding when it is brought by the chief cleik to a con- clusion. 34. When any certificate or report of the ciiief clerk shall have Certificate, ice, been signed and adopted by the judge the same shall be filed in like *'?"'?/?'', manner as reports are now filed, and shall thenceforth be binding on binding on all ^^' all the parties to the pioceedings, unless discharjfed or varied, either parties, unless at the chambers or in ojien court, according- to the nature of the case, y^jeSy^'* °' upon application by summons or motion within such time as shall be prescribed in that behalf by any general order of the Lord Chancellor ; and nothing herein contained shall prejudice or affect the power of the court at any time to open any such certificate or report upon the same or the like grounds as any report of a master of the said court which has been absolut^ily confirmed may now be opened. « « ' * # « # 39. From and after the said flr.-y appoint consequent thereon, shall bind the estate of such deceased person in ° '"' the same manner in every respect as if there had been a duly consti- 260 Creditor, &r., may Bummon executor, &c. to show cauee why an order for administra- tion of per- sonal estate should not be granted. Power to judge to order admi- nistration of such estate. Copy of sum- mons to be tiled in re- ■coid office of court. Creditor, &c,, may obtain an order for adminis- tration of real estate. Court may direct sale of mortgaged property instead of a foreclosure on such terms •as it may think tit. Appendix. tated legal personal representative "of such deceased person, and such legal personal representative had been a party to the suit or proceed- ing, and had duly appeared and submitted his rights and interests to the protection of the court. 45. It shall be lawful for any person claiming to be a creditor, or a specific pecuniary or rfesiduary legatee, or the next of kin, or some or one of the next of kin, of a deceased person, to apply for and obtain 9& of course, without bill or claim filed, or any other preliminaiy proceedings, a summons from the Master of the Rolls or any of the Vice-chancelloi"s requiring the executor or administrator, as the case may be, of such deceased person, to attend before him at chambers, for the purpose of showing cause why an order for the administration of the personal estate of the deceased should not be granted ; and upon proof by affidavit of the due service of such summons, or on the appearance in person or by his solicitor or counsel of such executor or administrator, and upon proof by affidavit of such other matters, if any, as such judge shall require, it shall be lawful for such ju(^e, if in his discretion he shall think fit so to do, to make the usual order for the administration of the estate of the deceased, with such varia- tions, if any, as the circumstances of the case may require ; and the order so made shall have the force and effect of a decree to the like effect made on the hearing of a cause or claim between the same par- ties : Provided that such judge shall have full discretionary power to grant or refuse such order, or to give any special directions touching the carriage or execution of such order, and in the case of applications for any such order by two or more different persons or classes of per- sons, 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. 46. A duplicate or copj' df such summons shall, previously to the service thereof, be filed in the record office of the said court ; and no service thereof upon any executor or administrator shall be of any vitality unless the copy so served shall be stamped with a stamp of such office indicating the filing thereof; and the filing of such sum- mons shall have the same effect with respect to lis pendens as the filing of a bill or claim. 47. It shall be lawful for any perron claiming to he a creditor of any deceased person, or interested under his will, to apply for and obtain in a summary way, in the manner herein-before provided with respect to the personal estate of a deceased person, an order for the administration of the real estate of a deceased person, where the whole of such real estate is by devise vested in trustees who are by the will empowered to sell such real estate, and authorized to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate; and all the provisions herein-before contained with respect to the application for such order in relation to the per- sonal estate of a deceased person, and consequent thereon, shall extend and be applicable to an application for such order as last herein- hefore mentioned with respect to real estate. 48. It shall be lawful for the cOurt in any suit for the foreclosure of the equity of redtmption in any mortgaged property, upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or any person claiming urder them respectively, to direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the court may think fit to direct, and 15 ^ 16 Vict. Cap. 86. 261 if the court shall so think fit, without previously determining the iiriorities of incumbrances, or giving- the usual or ai^.y time to redeem : Provided that if such request shall be made by any" such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the court shaill not direct any such sale, without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in court a reason- able 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. 49. No suit in the said court shall be dismissed by reason only Suit not lo bo of the misjoinder of persons as plaintiffs therein, but wherever it shall Jjj?^'?^^'' '"j appear to the court that, notwithstanding the conflict of interest in ^laintiffs^but the co-plaintiffs, or the want of interest in some of the plaintiffs, or couit may the existence of some ffround of defence affecting: some or one of T°™'/ !lL„,.j the plamtiirs, the plamtifts, or some or one of them, are or is entitled ing to special, to relief, the court shall have power to grant such rehef, and circumstances, to modify its decree, according to the special circumstances of the case, and for that purpose to direct such amendments, if any, as may be necessary, and at the hearing, before such amendments ar«^ made, to treat any one or more of the plaintiffs as if he or they was or were a defendant or defendants in the suit, and the remain- ing or other plaintiff or plaintiffs was or were the only plaintiff or plaintiffs on the record ; and where there is a misjoinder of plaintiffs, and the plaintiff having an intere;,t shall have died leaving a plaintiff' on the record without an interest, the court may, at the hearing of the cause, order the cause to stand revived, as may appear just, and proceed to a decision of the cause, if it shall seem fit, and to give such directions as to costs or otherwise as may appear just and expedient. 50. No suit in the said court shall be open to objection on the No suit to be ground that a merely declaratory decree or order is sought thereby, objecieii to and it shall be lawful for the court to make binding declarations of jf^^r^^,^i^-^ right without granting consequential relief. order sought. 51. It shall be lawful for the court to adjudicate on questions aris- Court may ing between parties notwithstanding that they may be some only of ^'"''^ betwei'n the parties interested in the property respecting which the question parties without may have arisen, or that the property in question is comprised with makins otiiers other property in the same settlement, will or other iiistrumpnt, jo'u'irsuft.''*'"'^' without making the other parties interested in the p-operty respecting which the question may have arisen, or interested under the same settlement, will or other instrument, parties to the suit, and without requii-ing the whole trusts and pui-poses of tlie settlement, will or other instrument to be executed undei- the direction of the court, and without taking the accounts of the trustees or other accouiiting parties, or ascertaining the particuli'• being made in court the judge shall proceed in a summary way to try the cause, and give judgement, without further pleading or formal joinder of issue. 75. And be it enacted, that no evidence shall be given by the ^^^"g'j;^''™^^/'' plaintiff on the trial of any such cause as aforesaid of any demand is notin «um- or cause of action, except "such as shall be stated in the summons ™o"'- hereby directed to be issued. 76. And be it enacted, that no defendant in any court holden under Notices id be this Act shall be allowed to set off any debt or demand claimed or ^f'spej^afae-'"" recoverable by him fiom the plaintiff, or to set up by way of de- fences, who shall fence and to claim and have the benefit of infancy, coverture, or fj^,"""'j"'?u any statute of limitations, or of his discharge uncier any statute piaiS! relating to bankrupts, or any Act for relief of insolvent debtors, without the consent of the plaintiff, unless such notice thereof as shall be directed by the rules made for regulating the practice of the court shall have been given to the clerk of the court ; and in every case in whiqh the practice of the court shall require such notice to be given, the clerk of the court shall, as soon as conveniently may be after receiving such notice, communicate the same to the plaintiff by the post, or bv causing the same to be delivered at his usual place of abode, or business ; but it shall not be necessary for the defendant to prove on the trial that such notice was communicated to the plaintiff oy the clerk. . , , = ,. 77. And be it enacted, that the judge may in any case, with the f^'iJJ^J"^*/^ consent of both parties to the suit, order the same, with or without tr.tion. other matters within the jurisdiction of the court in dispute between auch parties, to be referred to arbitration, to such person or persons. 272 Appendix. and in such manner and on such terms as he shall think rea- sonable and just ; and such reference shall not be revocable by either party, except by consent of the judge ; and the award of the arbi- trator or arbitrators or umpire shall be entered as the judgment in the cause, and shall be as binding and eifectual to all intents as if given by the judge : provided that the judge may, if he think fit, on application to him at the first court held after the expiration of one week after the entry of such award, set aside any such award so given as aforesaid, or may, with the consent of both parties aforesaid, re- voke the reference, or order another reference to be made in the manner aforesaid. Proceedings if plaintiff does not appear or prove his case. Proceedings if the defendant does not appear. ' Judge may.grant time. Defendant may pay money into c mrt . Notice of such payment to be given to plaintiff. 79. And be it enacted, that if upon the day of return of any sum- mons, or at any continuation or adjournment of the said court, or of the cause for which the said summons shall have been issued, the plaintiff shall not appear, the cause shall be struck out ; and if he shall appear, but shall not make proof of his demand to the satis- faction of the court, it shall be lawful for the judge to nonsuit the plaintiff, or to give judgment for the defendant, and in either case, where the defendant shall appear and shall not admit the demand, to award to thedefendant, by way of co.its and satisfaction for his trouble and attendance, such sum as the judge in his discretion shall think fit, and such sum shall be recoverable from the plaintiff by such ways and means as any debt or damage ordered to be paid hy the same court can be recovered: Provided always, that if the plaintiff shall not appear when called upon, and the defendant, or some one duly authorized on his behalf, shall appear, and admit the cause of action to the full amount claimed, and pay the fees payable in the first instance by the plaintiff, the court, if it shall think tit, may j.ro- ceed to give judgment as if the plaintiff had appeared. 80. And be it enacted, that it on the day so named in the sum- mons, or at any continuation or adjournment of the court or cause in which the summons was issued, the defendant shall not appear, or sufficiently excuse his absence, or shall neglect to answer when called in court, the judge, upon due proof of service of the summons, may proceed to the hearing or trial of the cause on the part of the plaintiff only, and the judgment thereupon shall be as valid as if both parties had attended : Provided always, that the judge in any such case, at the same or any subsequent court, may set aside any judgment so given in the absence of the defendant, and the exe- cution thereupon, and may grant a new trial of the cause, upon such terms, if any, as to payment of costs, giving security, for debt or costs, or such other terms as he may think fit, on sufficient cause shown to him for that purpose. 81. And be it enacted, that the judge may in any case make orders for granting time to the plaintiff or defendant to proceed in the prosecution or defence of the suit, and also may from time to time adjourn any court, or the hearing or fuither hearing of any cause, in such manner as to the judge may seem fit. 82. And be it enacted, that it shall be lawful for the defendant, in any action brought under this Act, within such time as shall be directed by the rules made for regulating the practice of the court, to pay into court such sum of money as he shall think a full satis- faction for the demand of the plaintiff, together with the costs in- curred by thp plaintiff up to the time of such payment ; and notice of such payment shall be communicated by the clerk ^f the court to 9 ^10 Vict. Cap. 95. 373 the plaintiff by post, or by causing' the same to be delivered at his usual place of abode or business ; and the said sum of money shall be paid to the plaintiff; but if he shall elect to proceed, and if the plaintiff shall recover no further sum in the action than shall have been so paid into court, the plaintiff shall pay to the defendant the costs incurred by him in the said action after such payment ; and such costs shall be settled by the court, and an order shall thereupon be made by the court for the payment of such costs by the plaintiff. 83. And be it enacted, that on the hearing' or trial of any action, ojhg^'',^^'' ,,g or on any other proceeding under this Act, the parties thereto, their examined.'^ wives and all other persons, may be examined, either on behalf of the plaintiff or defendant, upon oath, or solemn affirmation in those cases in which persons are by law allowed to make affirmation instead of taking an oath, to be administered by the pi-oper officer of the court. 84. And be it enacted, that every person who in any examina- persons giving tion upon oath or solemn affirmation before any judge of the county '»■?<'■ fVidence court shall wilfully and corruptly give false evidence shall be deemed f^^yj ° ''"" gxdlty of perjury. 85. And be it enacted, that either of the parties to the suit or any Summonses to other proceeding's under this Act may obtain, at the office of the witnessei. clerk of the court, summonses to witnesses, to be served by one of the bailiffs of the court, with or without a clause requiring the production of books, deeds, papers, and writings in their posses- sion or control, and in any such summons any number of names may be inserted. 86. And be it enacted, that every person on whom any such sum- penally on wit- mons shall have been served, either personally or in such other nesscB neglecting manner as shall be directed by the general rules or practice of the summons. courts, and to whom at the same time payment or a tender of pay- ment of his expenses shall have been made on such scale of allowance as shall be from time to time settled by the general rules of practice of the court, and who shall refuse or neglect, without sufficient cause, to appear, or to produce any books, papers, or writings required by such summons to be produced, and also every person present in court who shall be required to give evidence, and who shall refuse to be sworn and give evidence, shall forfeit and pay suth tine, not exceed- ing ten pounds, as the judge shall set on him ; and the whole or any part of such fine, in the discretion of the judge, after deducting the costs, shall be apphcable towards indemnifying the party injured by such refusal or neglect, and the remainder thereof shall form part of the general fund of the court in which the line was imposed. 99. And be it enacted, that if the party so summoned shall not oommiiment for attend as required by such summons, and shall not allege a sufficient frauds, &o. excuse for not attending, or shall, if attending, refuse to be sworn, or to disclose any of the things aforesaid, or if he shall not make answer touching the same to the satisfaction of such judge, or if it shall appear to such judge, either by the examination of the party or by any other evidence, that such party, if a defendant, in incurring the debt or liabihty which is the subject of the action in which judgment has been obtained, has obtained credit from the plaintiff under false pretences or by means of fraud or breach of trust, or has wilfully contracted such debt or liability without having had at the same time 274 Appendix. a reasonable expectation of hems able to pay or discharge the same, or shall have made, or cause to be made, any g^ft, delivery, or transfer of any property, or shall have charged, removed, or concealed the game, with intent to defraud his creditors or any of them ; or if it shall appear to the satisfaction of the judge of the said court that the party so summoned was then, or has had since the judgment obtained against him, sufficient means and ability to pay the debt or damages or costs so recovered against him, either altogether or by any instal- ment or instalments which the court in which the judgment was obtained shall have ordered, and if he shall refuse or neglect to pay the same as shall have 1 een so ordered, or as shall be ordered pur- suant to the power hereinafter provided, it shall be lawAil for such judge, if be shall think fit, to order that any such party may be com- mitted to the common gaol or house of correction of the county, dis- trict, or place in which the party summoned is resident, or to any prison wmch shall be provided as the prison of the court, for any period not exceeding forty days, ^^"na"?* 100. And be it enacted, that it shall be lawful for the judge of any alter orden. court before whom such summons shall be heard, if he shaQ think fit, whether or not he shaU make any order for the committal of the defendant, to rescind or alter any order that shall have been pre- viously made against any defendant so summoned before him for the payment, by instnlments or otherwise, of any debt or damages re- covered, and to make any further or other order, either for the pay- ment of the whole of such debt or damages and cost^ forthwith, or by any instalments, or in any other manner as such judge may think reasonable and just. Power to M- 101. And be it enacted, that in every case where the defendant in m?t"athraiSg'of 3"y s™* brought in any county court shall have been personally the cause. served with the summons to appear or shall personally appear at the trial of the same, the judge at the hearing of the cause, or at any adjournment thereof, if judgment shall be given against the defendant, shall have tfae same power and authority of examining the defendant and the plaintiff and other parties touching the several things hennn- before mentioned, and of i ommitting the defendant to prison, and of making an order, as he might have and exercise under the pro- visions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after the judgment obtained as hereinbefore mentioned. Mode of issuing 102. And be it enacted, that whenever any order of commitment and executing shall havc been made as aforesaid, the clerk of the said court shaU mtt^"^" """" issue under the seal of the court a warrant of commitment, directed to one of the bailiffi of any county court, who by such warrant shall be empowered to take the body of the person against whom such order shall be made ; and all constables and other peace officers within their several jurisdictions shall aid in the execution of every such warrant ; and the gaoler or keeper of every gaol, house of correction, and prison mentioned in any such order shall be bound to receive and keep the defendant therein until discharged under the provisions of this Act, or otherwise by due course of law. impriEonment 103. And be it enacted, that no imprisonment under this Act shall a° atofJS for '° anywise operate as a satisfaction or extingui.-hment of the debt, or tiie debt, &c. other cause of action on which a judgment has been obtained, or pro- tect the defendant from being anew summoned and imprisoneti for any new fraud or other default rendering him hable to be imprisoned under this Act, or deprive the plaintiff of any right to take out exe- 9 «f 10 Vict. Cap. 95. 275 cution against the goods and chattels of the defendant, in the same manner as if such imprisonment had not taken place. 104. And be it enacted, that in all cases where a wairant of execu- how execution tion shall have issued against the goods and chattels of any party, or may be had out an order for his commitment shall have been made under this'Act, of the''TOurt!°''''° and such party, or his goods and chattels, shall be out of the jurisdic- tion of the court, it shall be lawful for the high baihff of the' court to send such warjaiit of execution or of commitment to the clerk of any other court constituted under this Act, within the jurisdiction of which such party or his goods and chattels shall then be or be believed to be, with a warrant thereto aimexed, under the hand uf the high bailiff and seal of the court from which the original warrant issued, requiring execution of the same, and the clerk of the court to which the same shall be sent shall seal or stamp the same with the seal of his court, and issue the same to the high bailiff of his court, and thereupon such last-mentioned high bailiff shail be authorized and required to act in all respects as if the original warrant of execu- tion or commitment had been directed to him by the court of which he is the high bailiff, and shall, within such time as shall be specified in the rules of practice, return to the hig'h bailiff of the court from which the same originally issued what he shall have done in the execution of such process, and in case a levy shall have been made shall, within such time as shall be specified in the rules of practice, pay over all monies received in pursuance of the warrant to the high bailiff of the court from which the same shall have originally issued, retaining the fees for execution of the process ; and where any order of commit- ment shall have been made, and the person apprehended, he shall be forthwith conveyed, in custody of the bailiff or officer apprehending him, to the gaol or house of correction or other prison of the court within the juiisdiction of which he shall have been apprehended, and kept therein for the time mentioned in the warrant of commitment, unless sooner discharged under the provisions of this Act ; and all constables and other peace officers shall be aiding and assisting within their respective districts in the execution of such warrant. 105. And be it enacted, that if it shall at any time appear to the Power to judge satisfaction of the judge, by the oath oi affirmation of any person, or J.ut'ioJfj^a ce*r"in otherwise, that any defendant is unable, from sickness or other suffi- cases. cient cause, to pay and discharge the debt or damages recovered against him, or any instalment thereof ordered to be paid as aforesaid, it shall be lawful for the judge, in his discretion, to suspend or stay any judgment, order, or execution given, made, or issued in such action, for such time and on such terms as the judge shall think fit, and so from time to time until it shall appear by the like proof as aforesaid that such temporary clause of disability has ceased. 109. And be it enacted, that in or upon every warrant of execution EiecuHon to bo issued against the goods and chattels of any person whomsoever, the superseded on clerk of the court shall cause to be inserted or endorsed the sum of oSd"o'sis?' **' money and costs adjudged, with the sums allowed by this Act as in- creased costs for the execution of such warrant ; and if the party against whom such execution shall be issued shall, before an actual sale of the goods and chattels, pay or cause to be paid oi' tendered unto the clerk of the court out of which such warrant of execution has issued, or to the bailiff holding the warrant of execution, such sum of money and costs as aforesaid, or such part thereof as the person entitled thereto shall agree to accept in full of his debt or 276 Appendix. Debtor to be dJBcharged from custody upon payment of debt and costs. Minutes of pro- ceedings to be kept. SaitoTS* money nnclaimed in six years, to go to general fnnd. Power of com- mittal for con- tempt. damages and costs, together with the fees herein directed to be paid, the execution shall be superseded, and the g^oods and chattels of the said party shall be discharged and set at liberty. 110. And be it enacted, that any person imprisoned under this Act who shall have paid or satisfied the debt or demand, or the instalments thereof payable, and costs remaining due at the time of the order of imprisonment being made, together with the costs of obtaining such order, and all subsequent costs, shall be discharged out of custody, upon the certificate of such payment or satisfaction, signed by the clerk of the court, by leave of the judge of the court in which the order of imprisonment was made. 111. And be it enacted, that the clerk of every court holden under this Act shall cause a note uf all plaints and summonses, and of all orders, and of all judgments and executions, and returns thereto, and of all fines, and of all other proceedings of the court, to be feirly entered from time to time in a book belonging to the court, which shall be kept at the office of the court ; and such entries in the said book, or a copy thereof bearing the seal of the court, and purporting to be signed and certified as a true copy by the clerk of the court, shall at all times be admitted in all courts and places whatsoever as evidence of such entries, and of the proceeding referred to by such entry or entries, and of the regularity of such proceeding, without any further proof. 112. And be it enacted, that the clerk or clerks of every such court shall, in the month of March in each year, make out a correct list of all sums of money belonging to suiters in the court which shall have been paid into court, and which shall have remained unclaimed for five years before the first day of the month of January then last past, specifying the names of the parties tur whom or on whose account the same were so paid into court ; and a copy of such list shall be put up and remain during court hours in some conspicuous part of the court-house, and at all times in the clerk's office, and all sums of money which shall have been paid into any such court to the use of any suitor or suitors thereof^ and which shall have remained un- claimed for the period of six years before the passing of this Act, and which are now in the hands of any commissioner, trustee, judge, or officer of such court, or otherwise held in trust for such suitors, and aU further sums of money which shall hereafter be paid into any such court, to the use of any suitor or suitors thereof, shall, if unclaimed for the period of six years after the same shall have been so paid into court, be applicable as part of the general fund of the court, and shall be carried to the account of such fund, and no person shall be entitled to claim any sum which shall have remained unclaimed for six years ; but no time during which the person entitled to claim such sum shall have been an infant or Jevfie covert, or of unsound mind, or beyond the seas, shall be taken into account in estimating the said period of six years, 113. And be it enacted, that if any person shall wilfully insult the judge or any juror, or any bailiff, clerk, or officer of the said court for the time being, during his sitting or attendence in court, or in going to or returning from the court, or shall wilfully intermpt the proceedings of the court, or otherwise misbehave in court, it shall be lawful for any bailiff or officer of the court, with or without the assistance of any other person, by the order of the judge, to take such offender into custody, and detain him until the rising of the court ; and the judge shall be empowered, if he shall thinkfit, by a warrant 12 Sr 13 Vict. Cap. 101. 277 under his hand, and sealed with the seal of the court, to commit any such offender to any prison to which he has power to commit offenders under this Act for any time not exceeding seven days, or to impose upon any such offender a fine not exceeding five pounds for every such offence ; and in default of payment thereof, to commit the offender to any such prison as aforesaid for any time not exceeding seven days, unless the said fine be sooner paid. 142. And be it enacted, that in construing this Act all things interpretation directed or authorized to be done by or with respect to the Lord ^°'- Chancellor, shall and may be done by or with respect to a lord keeper or the first commissioner for the custody of the great seal of the United Kingdom of Great Britain and Ireland; and all things directed or authorized to be done by or with respect to the commis- sioners of Her Majesty's treasury, shall and may be done by and with respect to three or more of the said commissioners or the lord high treasurer; and the word "person" shall be understood to mean a body politic, corporate or collegiate, as well as an individual ; and every word importing the singular number shall where necessary to give full effect to the enactments herein contained, be understood to mean several persons or things as well as one person or thing ; and every word importing the masculine gender shall, where necessary, he understood to mean a female as well as a male ; and the words " county court" shall be understood to mean any court holden under this Act; and the term "landlord" shall be understood to mean the person entitled to the immediate reversion of the lands, or, if the property be holden in joint tenancy, coparcenary, or tenancy in common, shall be understood to mean any one of the persons entitled to such reversion ; and the word " clerk " shall be understood to mean " chief clerk," or " registrar," and the words " attorney at law" shall be understood to include a soUcitor in any court of equity ; and the word "bailiff" shall be understood to include high bailiff; unless in any of these cases there be something in the context incon- sistent with such meaning. 12 & 13 VICT. Cap. 101. An Act to amend the Act for the more easy Recovery of Small Debts and Demands in England, and to abolish certain Inferior Courts. [1st August, 1849.] Whereas by an Act passed in the tenth year of her present Majesty, intituled " An Act for the more easy Recovery of Small Debts and Demands in England," power is given to the judge in the cases therein mentioned to order that a party summoned in respect of an unsatisfied judgment or order, or a defendant in any suit, miiy be 278 Appendix. committed to the common gaol or house of correction of the county, district, or place in which such party or defendant is resident, or to any prison which should be provided as the prison of the court, for any period not exceeding forty days : and whereas it is expedient that persons shonld be committed under the said Act to houses of correction : Be it therefore enacted by the Queen's most excellent - Majesty, by and with theconsent of the Lords Spiritual andTemporal, and Commons, in this present parliament assembled, and by the To what prisons authority of the same, that from and after the thii-ty-iirst day of persons may be August one thousand eight hundred and forty-nine, so much of the ™"™"«^ "'"'«'■ said Act as authorizes anyjudge to order any such party or defendant frauds, kc " to he committed as hereinbefore mentioned shall be repealed ; and it shall be lawful for any judge who would have been authorized under the said Act to order any party or defendant to be conunitted as aforesaid for any such period as aforesaid, to order such party or defendant to be committed for the like period to the common gaol wherein the debtors under judgment and in execution of the superior courts of justice may be confined for the county, city, borough, or place in which such party or defendant is resident, or to any other gaol, or debtors' prison for the same county, city, borough, or place which shall by any declaration of one of Her Majesty's principal secretaries of state be allowed as a place of imprisonment for pereons committed under the said Act, so long as such declaration shall remain in force and unrevoked, or to any prison which has been or shall be provided as in the said Act mentioned as the prison of the court by the judge of which such order may be made ; and all the provisions of the said Act applicable to and consequent upon the order for com- mitment under the power hereinbefore repealed, and tu the prisons to which persons might be committed under such ordpr, shall apply to and be construed with reference to any order made under the power hereinbefore contained, and the prisons to which persons may be committed under such order. To what prisons 3. And whereas by the said Act of the tenth year of Her Majesty persons may be jt ^^A enacted, that if any person should wilfally insult the judge or tteMi'd Artfcr" '■^^J juror, or any baiUif, clerk, or officer of the court for the time contempt. being, during his sitting or att«ndance in court, or in going to or returning from the court, or should wilfully interrupt the proceedings of the court, or otherwise misbehave in court, the judge should be empowered, if he should think fit, by a wanunt under his hand, and sealed with the seal of the court, to commit any such offender to any prison to which he had power to commit offenders under the said Act for any time not exceeding seven days, or to impose upon any such offender a fine not exceeding five pounds for every such offence, and in default of payment thereof to commit the offender to any such prison as aforesaid for any time not exceeding seven days, unless the said fine were sooner paid : Be it enacted, that from and after the thirty-first day of August, one thousand eight hundred and forty-nine, so much of the last recited enactment as authorizes the judge to commit any such offender to any such prison as therein mentioned shall be repealed, and in any case in which any judee would under such enactment have been authorized to commit any such offender to any such prison as therein mentioned for such period as therein mentioned, such judge shall be empowered, if he think fit, by warrant, as therein mentioned, to commit such offender for the like period to any common gaol wherein the debtors under judgment and m execution of the superior courts of justice may be confined 12 ^ 13 Vict. Cap. 101. 279 for any county, city, borough or place wholly or in part within any district of such judse, or to any other gaol or debtors' prison for any- such county, city, borough, or place which shall by declaration as aforesaid be allowed as a place of imprisonment for persons com- mitted under the said Act, so long as such declaration shall remain in force and unrevoked, or to any prison which has been or may be provided, as in the said Act mentioned, as the prison of the court by the judge of which such offender shall be committed. where debtors' 3. Provided always, and be it enacted, that where by reason of prison is situated any common gaol wherein debtors under judg-ment and in execution at an inconve- of the superior courts of justice may be confined being situated at ",. crowded, ' an inconvenient distance, or of the crowded state of any such gaol, secretary of state or otherwise, it shall appear to one of her Majesty's principal may authorize secretaries of state expedient so to do, it shall be lawful for such k°'"s°"'f'corrOc- secretary of state, by order under his hand, to authorize to be used uon. for the purposes of commitments under the said Act of the tenth year of her Majesty any house of correction or common gaol in which such debtors as aforesaid may not be confined (to be men- tioned in such order), and to make orders for altering the regulations of such house of correction or gaol as last aforesaid, so far as respects the treatment of persons to be committed under this Act, in order that such persons may he treated as nearly as may be in like manner as if they had. been committed to a gaol in which such debtors as aforesaid may be confined, notwithstanding the regula- tions in force in such house of correction or gaol to which such persons may be committed ; and every such order may from time to time be revoked or varied by such secretary of state as occasion may require. 4. Provided also, and be it enacted, that where, under the pro- Gaois marntained visions hereinbefore contained, persons might be committed to any ^^^'^^^ of iiber- gaol or prison not now used for the purposes of the said Act which, persons not to be by reason of the tenure of any liberty or franchise, or otherwise, is ""* without maintained at the private charges of the lord of such liberty or """' ■='"'«*'"• franchise, or of any other private person, such gaol or prison shall not to be used for the purposes of commitments under the said Act until such lord or person as aforesaid shall have given his consent in writing to such araol or prison being so used. 5. And whereas by tne said Act of the tenth year of her Majesty it was enacted, " that it should be lawful for any court holden under that Act, with the approval of one of her Majesty's principal secre- taries of state, to use as a prison for the purposes of that Act any prison then belonging to any court holden under any of the Acts cited in the schedules (A.) and (B.) to that Act in all cases where it should appear to the said secretary of state that the common gaol or house of correction of the county, district, or place in which the court was established was inconveniently situated, or was not ap- plicable for the use of the said courts; and whenever any such prison should be so allowed to be used, it should be deemed one of the common gaols of the county for which it should be used, as if it had been provided after presentment of the insufficiency of one common gaol for such county, under the provisions of an Act passed in the sixth year of the reign of her Majesty, intituled " An Act to amend the Laws concerning Prisons:" And whereas a prison used under the said recited enactmtnt for a division of a county may be deemed a gaol for the county at large : Be it declared and enacted, that j^ ^^^„„ ^,^g where a prison allowed to be used with the approval of such secre- under recited 280 Appendix. enactment for tarj" of State shall be so used for any riding, part^, or division of a ordivwonof'a"' County having a distinct commission" of the peace, or a distinct rate, county, to be in the nature of a county rate, applicable to the maintenance of a deemed a com- pi-jgon for such riding, parts, or division (and not for the county at such ffding"' large), such prison shall be deemed one of the common gaols for the parts or division, riding, parts, or division for which it is so used (and not for the county at large), as if it had been provided after presentment of the insufficiency of one common gaol for such riding, parts, or division under the said Act of the sixth year of her Majesty. ****** So much of re- 7. And be it enacted, that so much of the said Act of the tenth Vict.^M^s.*'^'' y^^^ °^ ^s"" Majesty as directs that the clerk of every court holden as directs clerk ' under the said Act shall pay over to the treasurer of the court, quar- to pay over terly Or oftener in every year, by order of the court, the monies monies to wqs^ *'»- ' ^ * t i '11 !■ /■ i i surer, repealed, remaming m hxs hands over and above his own tees, and such balance as he shall be allowed \>y order of the court to retain for the Clerk to pay current expenditure of the court, shall be repealed ; and the clerk of arthe'treasury* 6'^6ry eourt holden under the said Act shall pay over to the treasurer may direct. of the court, quarterly or oftener in every year, as he may be directed by the commissicners of her Majesty's treasury, the monies re- maining in his hands over and above his own fees, and such balance as he shall be allowed by order of the said commissioners to retain for the current expenditure of the court. Somuchof9&io 8. And be it enacted, that so much of the said Act of the tenth M enacts t'h^t ^''' y*^^ "^ ^^^ Majesty as enacts that the clerk of every court, under clerks shall make the directions of the commissioners of her Majesty's treasury, and all necessary con- subject to such regulations as they may require to be enforced, shall pealed.*"'" "' Hittke all necessary contracts or otherwise provide for repairing and furnishing, and for cleaning, lighting, and warming the court- house and offices of such court, and tor supplying the said court and tErcaaury to pro- offices with law and office books and stationery, and for defraying all J'y"?*',' *^ other necessary expenses, not otherwise provided for, incident to the an™d^frayThe°'' holding of the said court, and as provides that no payment for any expenses. charge shall be allowed in the clerk's account until allowed under the hand of the judge, shall be repealed ; and it shall be lawful for the commissioners of her Majesty's treasury to provide for the several purposes, and for defraying the several expenses aforesaid, in such manner and by the agency of such officers of the court, or otherwise as to them shall seem fit. * ' * * * * « Judge may au- 10. And be it enacted, that it shall be lawful for the judge of any thorize bailiffs to court holden under the said Act of the tenth year of her Majesty, by act as brokers. ^^^ writing under his hand, to authorize any of the bailiffs appointed by the high bailiff under the said Act to act as brokers or appraisers, for the purpose of selling or valuing any goods, chattels, or effects taken in execution under the said Act; and the bailiffs so authorized by the judge maj-, without other licence in this behalf, do and per- form all the duties and shall be entitled to the poundage which sworn brokers or appraisers may now do and perform and are entitled to under the said Act. * * * * * * 13 if 14 Vict. Cap. 61. 281 13 & 14 VICT. Cap. 61. An Act to extend the Act for the more easy Recovery of Small Debts and Demands in England, and to amend the same, [14th August, 1850.1 * tt * # t * 2. And be it enacted, that this Act and the said recited Acts of This Act to be the tenth and thirteenth years of her Majesty shall be read and con- o"^^'^ y* t"" 95 strued as one Act, as if the several provisions in the said recited Acts and 12 & isvict! contained, not inconsistent with the provisions of this Act, were re- c. 101. peated and re-enacted in this Act. » » •_ * * * 8. And he it enacted, that any person against whom a plaint Confession of shall be entered in any county court may, if he think tit, whether he ^^?J^ °&,?"nd°' be summoned upon such plaint or not, in the presence of the clerk judgment tiiere- or assistant clerk, of the court in which such plaint shall have been "p<">- fentered, or one of their clerks respectively, or in the presence of an attorney of one of the superior courts, sign a statement confessing and admitting the amount of the debt or demand or part of the amount of the debt or demand for which such plaint shall have been entered ; and such clerk or assistant clerk shall, as soon as conve- niently may be after receiving such statement, send notice thereof to the plainti&j by the post, or by causing the same to be delivered at his usual place of abode or business ; and thereupon it shall not be necessary for the said plaintiff to prove the debt or demand so con- fessed and admitted as aforesaid; but the judge of such court at the next sitting of such court, whether the parties or either of them attend such court or not, shall, upon projf by aifidavit of the signa- ture of the party, if such statement were not made in the presence of the clerk or assistant clerk, proceed to give judgment for the debt or demand so confessed and admitted, in the same manner and subject to the same conditions as if he had tried the cause and given judgment thereupon under the provisions of the said flrst- recired Act. 9. And be it enacted, that if the person against whom a plaint Agreement as to shall be entered in any county court can agree with the person on ^^.^^"""and' whose behalf such plaint shall have been entered upon the amount of cond'iuons of the debt or demand in respect of which such plaint shall have been.pi'y'nent. entered, and upon the terms and conditions upon which the same shall be paid and satisfied, it shall be lawful for such persons respec- tively, in the presence of the clerk or assistant clerk of the court in which such plaint shall have been entered, or one of their clerks respectively, or in the presence of an attorney of one of the superior courts, to sign a statement of the amount of the debt or demand so agreed upon between such persons respectively, and of the terms and conditions upon which the same shall be paid or satisfied, such clerk or assistant clerk shall receive such statement, and shall there- upon, upon proof by affidavit of the signature of the party, if such statement were not made in the presence of the clerk or assistant clerk, enter up judgment for the plaintiff for the amount of the debt 282 Appendix. or demand so agreed on, and upon the terms and conditions men- tioned in such statement ; and such judgment shall to all intents and purposes be the same, and have the same effect, and shall be enforced and enforceable in the same manner, as if it had been a judgment of the judge of the said court. If plaintiff or iiis 10. And be it enacted, that in every case where the plaintiff shall attorney do not not appear, either by himself or his attorney, upon the day of the hearing!"cosS °' return of any summons for hearing, or at any continuation or adjoum- may be 'awarded ment of the said hearing, and the defendant shall appear either by his*tTOibie"'nd'^ himself or his attorney upon such day of hearing, continuation or attendance.*" adjournment, it shall be lawful for the judge to award to the defen- dant or to his attorney, by way of costs of his attendance and satisfac- tion for his trouble, such sum as the judge in his discretion shall think tit; and the sum so awarded shjall be recoverable from the plaintiff by such ways and means as any debt or damage ordered to be paid by the same court can be recovered. ****** Appeal to te in 15. And be it enacted, that such appeal shall be in the form of a rafe'aereed on '^^^^ agreed on by both ptirties, or their attornies, and if they can- by botli parties, not agree, the judge of the county court, upon being applied to by but if they cannot tjjem or their attornies, shall settle the case and sig^ it; and such seWe'and stgn it. Case shall be transmitted by the appellant to the Rule Department of the Master's Office of the court in which the appeal is to be brougrht. 19 & 20 VICT. Cap. 108. An Act to amend the Acts relating to the Covnty Courts. [29th July, 1856.J lliisActand 3- This Act and the Aits passed in the sessions of parliament |}&iovict.c.ns; holden in the ninth and tenth years of the reign of her present Ma- c^ioi'-'ia'&'u J^^*yj chapter ninety-iive, in the twelfth and thirteenth years of the Vict. c. 81 ; and reign of her present Majesty, chapter one hundred and one, in the ''m'* h'"'" thirteenth and fourteenth years of the reign of her present Majesty, i*n& together." chapter sixty-one, and in the fifteenth and sixteenth years of the reign of her present Majesty, chapter fifty-four, shall be read and construed as one Act. as if the several provisions in the said recited Acts contained, not inconsistent with the provisions of this Act, were repeated and re-enacted in this Act. • »*••» Summons may 17. A summons may be served, or a warrant executed, within ^e^T^^S^ five hundred yards of the boundary of the district of the county within 500 yards court from which the same issued by the bailiff of such court, or, by of district, &c. order of the judge of such court, by such bailiff within the district of any other court. 19 «f 20 Vict. Cap. 108. 283 18. Where a plaintiff shall dwell or cany on business in the '''''"ots of the district of the Bloomsbury county court of Midd'lesex, or in the district ?rpoiil°to bl '°°' of the Brompton county court of Middlesex, or in the district of treated aa one the Clerkenwell county court of Middlesex, or in the district of the 'lis'".'!' for Lambeth county court of Surrey, or in the district of the Marylebone " purposes. county court of Middlesex, or in the district of the Shoreditch county court of Middlesex, or in the district of the Southwark county court of Surrey, or in the district of the Westminster county court of Mid- dlesex, or in the district of the Whitechapel county court of Middle- sex, and the defendant shall dwell or carry on business in the district of any of the said courts, the summons may issue and be served either in the district in which the plaintiff shall dwell or carry on business, or in the district in which the defendant shall dwell or carry on business. 19. A judge proposing to sue any person dwelling or carrying Where judge of on business in any disirict of which he is the judge may bring his county court can action in the county court of any adjoining district of which he is '"^ ^" ™"'* not the judge; and any person proposing to sue a judge may bring his action in any county court of a district adjoining the district of which the defendant is judge. 20. If an action be brought by an officer of a county court in the if officer of court court of which he is an officer, except in case of the registrar suing be plaintiff in hi> as official assignee, the judge shall, at the reques-t of the defendant, drtmay'remo™ order that the venue be changed, and that the cause be sent for the cause to an hearing to the court of some convenient district of which he is not ailJ?"'"S dis- the judge ; and the registrar of the first-mentioned court shall forth- with transmit by post to the registrar of such last-mentioned court a certified copy of the plaint as entered in the plaint book, the dupli- cate copy of the summons and particulars served on the defendant, and a certified copy of the order for changing the venue as entered in the minute book; and the judge of such last-mentioned court shall appoint a day for the hearing, notice whereof shall be sent by post or otherwise by the registrar of such last-mentioned court to both parties. 21. If an action be brought against an officer of a county court, where officer sf the summons may issue in the district of which he is an officer, or in may be sued! any adjoining district the judge of which is not the judge of a court of which the defendant is an officer. 23. The county courts shall not have jurisdiction to try any if parties agree, action for criminal conversation ; but with respect to all other actions ^"""'^"""'to''^" which may be brought in any superior court of Common Law, if both certain causes parties shall agree by a memorandum signed by them or their "'"J^sh the respective attornies that any county court named in such memoran- "s*jurisdretiOT°.° dum shall have power to try such action, such county court shall have jurisdiction to try the same. 31. A judge of a county court, in any case where he shall see Judge may issue fit, upon application on affidavit by either party, may issue an order ^^^^^^^l ^ under his hand and the seal of the court for bringing up before such prisoner to giro court any prisoner or person confined in any gaol, prison, or place, evidence, nnder any sentence, or under commitment for trial or otherwise, ex- cept under process in any civU action, suit or proceeding, to be examined as a witness in any cause or matter depending or to be inquired of or determined in or before such court ; and the person required by any such warrant or order to be brought before such X 284 Appendije. court shall be so brought, under the same care and custody, and be dealt with in like manner in all respects, as a prisoner, required by any writ of habeas corpus awarded by any of her Majesty's superior courts of law at Westminster to be brougrht before such court to be examined as a witness in any cause or matter depending before such court, is now by law required to be dealt with : Provided always, that the person having the custody of such prisoner or person shall not be bound to obey such order unless a tender be made to him of a reasonable sum for the conveyance and maintenance of a proper officer or officers, and of the prisoner or person in going to, remain- ing at, and returning from such county court. wherejudgment 45^ Where judgment has been obtained in a county court for a aorjudee^ay 8um not exceeding twenty pounds, exclusive of costs, the judge may order jMyment order such Bum and the costs to be paid at such time or times, and by insiaiments. j,y gy^j, instalments, if any, as he shall think lit, and all such monies In other cases, shall be paid into court ; but in all other cases he shall order the full corisent of plain- amount for which judgment has been obtained to be paid either forth- t s necessary, ^jjj,^ gj, ^jtijjn fourteen clear days from the date of the judgment, unless the plaintiff, or his counsel, attorney, or agent will consent that the same shall be paid by instalments, in which case the judge shall order the same to be paid at such time or times, and by such instal- ments, if any, as shall be consented to ; and all such monies, whether payable in one sum or by instalments, shall be paid into court. Priori^ of M- 46. The precise time when any application shall be made to a out'o'fcoimw°^ registrar to issue a warrant against the goods of a party, shall be court. entered by him in the execution book, and on the warrant; and when more than one such waiTant shall be delivered 10 the high bailiff to be executed, he shall execute them in the order of the times so entered. Priority of ei- 47. When a writ against the goods of a party has issued from ou't"i"uper.or^ ^ Superior court, and a warrant against the goods of the same party court and county has irsued from a county court, the right to the goods seized shall be fiourt. determined by the priority of the time of the dehvery of the writ to the sheriff to be executed, or of the application to the registrar for the issue of the warrant to be executed ; and the sheriff, on demand, shall, by writing signed by any clerk in the office of the under sheriff, inform the high bailiff of the precise time of such delivery of the writ, and the bailiff, on demand, shall show his warrant to any sheriff's officer, and such writing purporting to be so signed, and the indorse- ment on the warrant, shall respectively be sufficient justification to any high bailiff or sheriff acting thereon. Summons for 48. A judgment summons authorized by the ninety-eighth section m^rbyTaJe of "^ ^^^ Act of the ninth and tenth years of the reign of her present court, issue jn Mujesty, chapter ninety-five, may, by leave of the judge, be obtained S'Lrat'wi'' ^^"^ '''^^ '^°"^^ '" which judgment was obtained, although the judg- obtlined. "*" ment debtor shall not then dwell or carry on business within the dis- trict of such court, if the judge shall think fit, in the exercise of his discretion, to grant such leave. • **««« Md^f^u anT"* , F- The Judge of a county court may at all times amend all errors of pro- detects and errors in any proceeding in such court, whether there is ceedlng., &c. anythmg in writing to amend by or not, and whether the defect or error be that of the party applying to amend, or not; and all such amendments may be made with or without costs, and upon such terms as to the judge may seem fit ; and all such amendments as may be 19 ^ 20 Vict. Cap. 108. 285 necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made, if duly applied for. 58. Any aiEdavit to be used in a county court may be sworn Bsfore whom before a judge or registrar of a county court," without the payment of bwom!"' "*'' *' any fee, or before a commissioner to administer oaths in Chancery in England, or a London commissioner to administer oaths in Chancery, or a commissioner for taking affidavits in any superior court, such commissioner respectively not being registrars, or Defore a justice of the peace. 59. Every warrant of commitment which shall issue from a county Warranto of com- conrt shall, on whatever day it may be issued, bear date on the day on jSn^to'be'^ which the order for commitment was made, and shall continue in force force. for one year from such date and no longer, but no order for commit- ment shall be drawn up or served. ****** 62. The bankruptcy or insolvency of the plaintiff in any action Bankruptcy and in a county court, which the assignees might maintain for the benefit jJia^ntMrnjUo of the creditors, shall not cause the action to abate if the assignees cause action to shall elect to continue such action, and to give security for the costs abate, if assig- thereof, within such reasonable time as the judge shall order, but the tiifue'itf' '"*"'"" hearing of the cause may be adjourned until such election is made ; and in case the assignees do not elect to continue the action, and to give such security within the time hmited by the order, the defendant may avail himself of the bankruptcy or insolvency as a defence to the action. ****** 69. No appeal shall lie from the decision of a county court, if Parties may before such decision is pronounced both parties shall agree, in writing p|™ ""' '" *P" signed by themselves or their attornies or agents, that the decision of a judge shall be final, and no such agreement shall require a stamp. 70. Where by this Act, or any Act relating to the county courts, How securities a party is required to give security, such security shall be at the "ourTActTto^bo cost of the party giving it, and in the form of a bond, with sureties, given and en- to the other party or mtended part.y in the action or proceeding : '<>"=''• Provided always, that the court in which any action on the bond shall be brought may by rule or order give such relief to the obligors as may be just, and such rule or order shall have the effect of a defeasance of such bond. 71. Where by this Act, or any Acts relating to the county courts, jy,Ie"^i,'e5"to"be a party is required to give security, he may la lieu thereof deposit gi'lr"a depoai" with the registrar, if the security is required to be given in a county of money may be court, or with a master of a superior court if the security is required {hereof? ''°" to be given in such court, a sum equal in amount to the sum for which he woujd be required to give security, together with a me- morandum, to be approved of by suchregistrar or master, and to be signed by such party, his attorney or agent, setting forth the condi- tions on which such money is dep'sited, and the registrar or master shall give to the party paying a written acknowledgment of such payment; and the judge of the county court, when the money shall have been deposited in such court, or a judge of the superior court when the monev shall have been deposited in a superior court, may, on the same evidence as would be required to enforce or avoid such bond as in the last preceding section is mentioned, order such sura 80 deposited to be paid out to such party or parties as to him shall seem lust. ■' x2 286 Appendix. claimant of goods taken in execution must deposit their values or pay costs of keeping possession, other- wise goods shall be sold. Acknowledg- ments by married women under S & 4 Will. i. c. 74, to be re- ceived by judge. 72. Where any claim shall be made under section one hundred and eighteen of the Act of the ninth and tenth years of the reign of her present Majesty, chapter ninety-flve, to or in respect of any goods taken in execution under the process of a county court, the claimant may deposit with the bailiff either the amount of the value of the goods claimed, such value to be affixed by appraisement in case of dispute, to be by such bailiff paid into court, to abide the decision of the judge upon such claim, or the sum which the bailiff shall be allowed to charge as costs for keeping possession of such goods until such decision can be obtained, and in default of the claimant so doing the bailiff- shall sell such goods as if no such claim had been made, and shall pay into court the proceeds of such sale, to abide the decision of the judge. 73. Any acknowledgment to be made by any married woman of any deed under the Act of the third and fourth years of the reign of his late Majesty King William the Fourth, chapter seventy-four, may be received by a judge of a county court in the same maimer as such acknowledgment may be received by a judge of a superior court. PART III. CHAPTER I. TRUSTEES RELIEF ACTS. 10 & 11 VICT. Cap. 96. An Act for better securing Trust Funds, and for the Relief of Trustees. [22nd July, 1847.] Whereas it is expedient to provide means for better securing trust funds, and for relieving trustees from the responsibility of administer- ing trust funds in cases where they are desirous of being so relieved : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, that all trustees, executors, administrators, or other persons, havine in J''"^'*^^ may their hands any monies, belonging to any trust whatsoever, or the or transfer stockj major part of them, shall be at liberty, on filing an affidavit shortly ?"''^'=™'''''es describing the instrument creating the trust, according to the best of chlncery."'"' °^ their knowledge and belief, to pay the same, with the privity of the accountant general of the High Court of Chancery, into the Bank of England, to the account of such accountant general in the matter of the particular trust (describing the same by the names of the parties, as accurately as may be, for the purpose of distinguishing it), in trust to attend the orders of the said court ; and that all trustees or other per- sons having any annuities or stocks standing in their name in the books of the governor and company of the Bank of England or of the East India Company or South Sea Company, or any government or parliamentary securities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon any trusts whatsoever, or the major part of them, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said accountant general, with his privity, in the matter of the particular trust (describing the same as aforesaid), in trust to attend the orders of the said court; and in every such case the receipt of one ^hlSJorrartu Of the cashiers of the said bank for the money bo paid, or, in the case flcate of proper 288 Appendvv. officer, to be sufficient diB- charge. Court of Chan- cery to in;ike orders on peti- tion, without bill, for applica- tion of trust monies and ad- ministration of trust. of Stocks or securities the certificate of the proper officer, of the transfer or deposit of such stocks or securities, shall be a sufficient discharge to such trustees or other persons for the money so paid, or the stocks or securities so transferred or deposited. 2. And be it enacted, that such orders as shall seem fit shall be from time to time made by the High Court of Chancery in respect of the trust monies, stocks, or securities so paid in, transferred, and deposited as aforesaid, and for the investment and payment of any such monies, or of any dividends or interest on any such stocks or securities, and for the transfer and delivery out of any such stocks and securities, and for the administration of any such trusts generally, upon a petition to be presented in a summary way to the lord chancellor or the master of the rolls, without bill, by such party or parties, as to the court shall appear to be competent and necessary in that behalf, and service of such petition shall be made upon such person or persons as the court « shall see fit and direct ; and every order made upon any such petition shall have the same authority and effect, and shall be enforced and subject to rehearing and appeal, in the same manner as if the same bad been made in a. suit regularly instituted in the court; and if it shall appear that any such trust funds cannot be safely distributed vcithout the institution of one or more suit or suits, the lord chancellor or master of the rolls may direct any such suit or suits to be instituted. 3. Provided always, and be it enacted, that the additional remunera- tion which the said accountant general may receive in consequence of oouu an genera . ^j^^ operation of this Act shall not have the effect of giving to him any claim for a larger income by way of salary or otherwise, in the event of the said office of accountant general being hereafter regulated by competent authority, than would have been assigned to him if this Act had not been passed. 4. And be it enacted, that the Lord Chancellor, with the assistance of the Master of the Rolls or of one of the Vice-chancellors, shall have power and is hereby authorized to make such orders as from time to time shall seem necessary for belter carrying the provisions of this Act into effect. ression " Lord ®' ^^^ ^^ '^ *°^'^'s'^» 'hat in the construction of this Act the expression Chancellor." " the Lord Chancellor" shall mean and include the Lord Chancellor, Lord Keeper, and Lords Commissioners for the custody of the great seal of Great Britain for the time being. Begulating salary of ac- Lord Chancellor, with Master of the Rolls, &c., may make ge- neral orders. Co'" Btruction of 12 & 13 VICT. Cap. 7i- An Act for the further Relief of Trustees [•28th July, 1849.] 10 & 1 1 Vict. 0.96. Whereas difficulties have arisen in the tranfer of securities vested in trustees in certain cases under the provisions of an Act passed in the session of parliament holden in the tenth and eleventh years of the reign of her present Majesty, intituled " An Act for better securing Trust Funds, and for the Eelief of Trustees," and it is expedient to make further provision for carrying into effect the objects of the said 22 8f 23 Vict. Cap, 35. 289 recited Act : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, that if upon any petition presented to the "ourt of Chan- Lord Chancellor or Master of the Rolls in the matter of the said Act it applimaf.'n'by'' shall appear to the judge of the court of .Chancery before whom such majority of petition shall be heard that any monies, annuities, stocks, or securities o'Ser Mj^nt or are vested in any persons as trustees, executors, or administrators, or transfer of trust otherwise, upon' trusts within the meaning of the said recited Act, and monies, stocks, or that the major part of such persons are desirous of transferrins, paying, joun oi Chan- or delivering the same to the accountant general of the High Court of eery. Chancery under the provisions of the said recited Act, but that for any reason the concurrence of the other or others of them cannot be had, it shall be lawful for such judge as aforesaid to order and direct such transfer, payment, or delivery to be made by the major part of such persons without the concurrence of the other or others of them ; and where any such monies or government or parliamentary securities shall be deposited with any banker, broker, or other depositary, it shall be lawful for such judge as aforesaid to make such order for the payment or delivery of such monies, government or parliamentary securities, to the major part of such trustees, executors, administrators, or other persons as aforesaid, for the purpose of being paid or delivered to the said accountant general as to the said judge shall seem meet ; and every transfer of any annuities, stocks, or securities, and every payment of money or delivery of securities, in pursuance of any such order, shall be as valid and effectual as if the same had been made on the authority or by the act of ail the persons entitled to the annuities, stocks, or secu- rities so transferred, or the monies or securities so paid or delivered respectively, and shall fully protect and indemnify the governor and company of the Bank of England, the East India Company, and the South Sea Company, and all other persons acting under or in pur- suance of such order. 22 & 23 VICT. Cap. 35. An Act to further amend the Law of Property, and to relieve Trustees. [13th August, 1859.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : — Leases. I. Where any licence to do any act which without such licence Keatriolion on would create a forfeiture, or give a right to re-enter under a condition ^f. o'"'™"* or power reserved in any lease heretofore granted or to be hereafter granted, shall at any time after the passing of this Act be given to any 290 Appendix. lessee or his assigns, every such licence shall, unless otherwise ex- pressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant made or to be made, or to the actual assginment, under-lease, or other matter thereby specifically authorized to be done, but not so as to prevent any proceeding for any subsequent breach (unless otherwise specified in such licence), and all rights under covenants and powers of forfeiture and re-entry in the lease contained shall remain in full force and virtue, and shall be available as against any subsequent breach of covenant or condition, assignment, under- lease, or other matter not specifically authorized or made dispunishable by such licence, in the same manner as if no such licence had been given ; and the condition or right of re-entry shall be and remain in all respects as if such licence had not been given, except in respect of the particular matter authorized to be done. Keitricted ope- 2. Where in any lease heretofore granted or to be hereafter granted ration of partial tjjere is or shall be a power or condition of re-entry on assigning or un- derletting or doing any other specified Act without licence, and a licence at any time after the passing of this Act shall be given to one of several lessees or co-owners to assign or underlet his share or interest, or to do any other act prohibited to be done without licence, or shall be given to any lessee or owner, or any one of several lessees or owners, to assign or underlet part only of the property or to do any other such act as aforesaid in respect of part only of such property, such licence shall not operate to destroy or extinguish the right of re- entry in case of any breach of the covenant or condition by the co-lessee or co-lessees, or owner or owners of the other shares or interests in the property, or by the lessee or owner of the rest of the property (as the case may be) over or in respect of such shares or interests or remaining property, but such ri^ht of re-entry shall remain in full force over or in respect of the shares or interest or property not the subject of such licence. 3. Where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned, the assignee of each part of the reversion shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for nonpayment of the original rent or other reservation, in like manner as if such conditions or powers had been reserved to him as incident to his part of the reversion in respect of the apportioned rent or other reservation allotted or belonging to him. Apportionmeat of coDditions of re-entry in cer- tain cases. Policies of Insurance. Belief against forfeiture for breach of cove- nant to Insure in certain cases. When relief granted the same to be recorded. 4. A court of equity shall have power to reheve against a forfeiture for breach of a covenant or condition to insure against loss or damage by fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the application to the court in con- formity with the covenant to insure, upon such terms as the court may seem fit. 5. The court, where relief shall be granted, shall direct a record of such relief having been granted to be made by endorsement on the lease or otherwise. 22 ^ 2a Vict. Cap. 35. 291 6. The court shall not have power under this Act to relieve the same court not to person more than once in respect of the same covenant or condition ; relieve any per- nor shall it have power to grant any relief under this Act where a for- once"in're*pMt feiture under the covenant in respect of which relief is sought shall of the same have been already waived out of court in favour of the person seeking covenant, &c. the relief. 7. The person entitled to the benefit of a covenant on the part of a Lessor to have lessee or mortgagor to insure against loss or damage by fire shall, on inforn'ia' "" loss or damage by fire happening, have the same advantage from any insurance, then subsisting insurance relating to the building covenanted to be in- sured, effected by the lessee or mortgagorinrespect of his interest under the lease or in the property, or by any person claiming under him, but not effected in conformity with the covenant, as he would have from an insurance effected in conformity with the covenant. 8. Where, on the bondjide purchase after the passing of this Act of Protection of a leasehold interest under a lease containing a covenant on the part of jP"rch"ser against the lessee to insure against loss or damage by fire, the purchaser is fur- covenantfor nished with the written receipt of the person entitled to receive the rent, insurance or his agent, for the last payment of rent accrued due before the com- JfrtSnMMs'." pletion of the purchase, and there is subsisting at the time of the com- pletion of the purchase an insurance in conformity with the covenant, the purchaser or any person claiming under him shall not be subject to any liability, by way of forfeiture or damages or otherwise, in respect of any breach of the covenant committed at any time before the com- pletion of the purchase, of which the purchaser had not notice before the completion of the purchase; but this provision is not to take away any remedy which the lessor or his legal representatives may have against the lessee or his legal representatives for breach of covenant. 9. The preceding provisions shall be applicable to leases for a term Preceding of years absolute, or determinable on a life or lives or otherwise, and app^oleaSs also to a lease for the life of the lessee or the life or lives of any other for a term of person or persons. • g?'^ absolute, flentcharges. 10. The release from a rentcharge of part of the hereditaments S^SdhJ^d charged therewith shall not extinguish the whole rentcharge, but shall not to he an operate only to bar the right to recover any part of the rentcharge out extinguishment. of the hereditaments released, without prejudice, nevertheless, to the rights of all persons interested in the hereditaments remaining unre- leased, and not concurring in or confirming the release. Judgments. 11. The release from a judgment of part of any hereditaments charged JJ?}^^'^^ "^"^ therewith shall not affect the validity of the judgment as to the here- „oitoaffect'^* ditaments remaining unreleased, or as to any other property not speci- judgment, fically released, without prejudice, nevertheless, to the rights of all persons interested in the hereditaments or property remaining unre- leased, and not concurring in or confirming the release. Powers. 12. A deed hereafter executed in the presence of and attested by two Mode of eiecu- or more witnesses in the manner in which deeds are ordinarily executed *"'" ° p™^"- 292 Appendix. Sale under power not to be avoided by reason of mis- taken payment to tenant for life. Devisee in trust may raise money by sale, notwith- standing want of express power in the will. Powers given by last section extended to survivors, devisees, &c. and attested shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some addi- tional or other form of execution or attestation or solemnity : Provided always, that this provision shall not operate to defeat any direction in the instrument creating the power that the consent of any particular person shall be necessary to a valid execution, or that any Act shall be performed in order to give validity to any appointment, having no relation to the mode of executing and attesting the instrument, and nothing herein contained shall prevent the donee of a power from executing it conformably to the power by writing or otherwise than by an instru- ment executed and attested as an ordinary deed, and to any such exe- cution of a power this provision shall not extend. 13. Where under a power of sale a hondjide 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 pur- chase money as the value of the timber or other articles, it shall be lawful for the court of Chancery, upon any bill or claim or application in a summary way, as the case may require or permit, to declare that upon payment by the purchaser, or the claimant under him, of the full value of the timber and articles at the time of sale, with such interest thereon as the court shall direct, and the settlement of the said princi- pal monies and interest, under the direction of the court, upon such parties as in the opinion of the court shall be entitled thereto, the said sale ought to be established ; and upon such payment and settlement being made accordingly the court may declare that the said sale is valid, and thereupon the legal estate shall vest and go in like manner as if the power had been duly executed, and the costs of the said application as between solicitor and client shall be paid by the purchaser or the claimant under him. 14. Where by any will which shall come into operation after the passing of this Act the testator shall have charged his real estate or any specific portion thereof with the payments of his debts, or with the payment of any legacy or other specific sum of money, and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express pro- vision for the raising of such debt, legacy, or sum of money out of such estate, it shall be lawful for the said devisee or devisees in trust, no'- withstanding any trusts actually declared by the testator, to raise such debts, legacy, or money as aforesaid by a sale and absolute disposition by public auction or private contract of the said hereditaments or any part thereof, or by a mortgage of the same, or partly in one mode and partly in the other, and any deed or deeds of mortgage so executed may reserve such rate of interest and fix such period or periods of repay- ment as the person or persons executing the same shall think prope-. 15. The powers conferred by the last section shall extend to all and every person or persons in whom the estate devised shall for the time being be vested by survivorship, descent, or devise, or to any person or persons who may be appointed under any power in the will, or by the court of Chancery, to succeed to the trusteeship vested in such devisee or devisees in trust as aforesaid. 22 ^ 23 Vict. Cap. 35, 293 16. If any testator who shall have created sach a charge as is described Executors to in the fourteenth section shall not have devised the hereditaments l"".™ power of charged as aforesaid in such terms as that his whole estate and interest &c' where th/re therein shall become vested in any trustee or trustees, the executor or is no sufficieot executors for the time being named in such will (if any) shall have the "leTise. same or the like power of raising the said monies as is hereinbefore vested in the devisee or devisees in trust of the said hereditaments, and such power shall from time to time devolve to and become vested in the person or persons (if any) in whom the executorship shall for the time being be vested ; but any sale or mortgage under this Act shall operate only on the estate and interest, whether legal or equitable, of the testator, and shall not render it unnecessary to get in any outstand- ing subsisting legal estate. 17. Purchasers or mortgagees shall not be bound to inquire whether Purchasers, &c. the powers conferred by sections fourteen, fifteen, and sixteen of this fnqui™ "s to Act, or either of them, shall have been duly and correctly exercised by powers. the person or persons acting in virtue thereof. 18. The provisions contained in sections fourteen, fifteen, and sixteen Sections 14, 15, shall not in any way prejudice or affect any sale or mortgage already ^J* iSnotto made or hereafter to be made, under or in pursuance of any will com- sales, «rc. nor to ing into operation before the passing of this Act, but the validity of any extend to devises such sale or mortgage shall be ascertained and determined in all respects '° *'*'"' '" *^'^' as if this Act had not passed ; and the said several sections shall not extend to a devise to any person or persons in fee or in tail, or for the testator's whole estate and interest charged wi h debts or legacies, nor shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do. Inheritance. 19. Where there shall be a total failure of heirs of the purchaser, or Descent ho» to where any land shall be descendible as if an ancestor had been the pur- be traced. chaser thereof, and there shall be a total failure of the heirs of such ances- tor, then and in every such case the land shall descend and the descent shall thenceforth be traced from the person last entitled to the land as if he had been the purchaser thereof. 20. The last preceding section shall be read as part of the Act " for Preceding the Amendment of the Law of Inheritance," of the session of the third ,3?^° with'sTi and fourth years of the reign of King William the Fourth, chapter one w.4, c.io6. hundred and six. Assignment of Personalty, 21. Any person shall have power to assign personal property now by Assignment law assignable, including chattels real, directly to himself and another *o^^ »°'l person or other persons or corporation, by the like means as he might assign the same to another. Purchasers. 22. From and after the thirty-first day of December, one thousand After Dec. si, eight hundred and fifty-nine, the provisions for re-registry of judgments, ^^^^ fjgisiry" decrees or orders, rules or orders contained in the Act of the session of contained in the second and third years of Qu#en Victoria, chapter eleven, as ex- * * » Vict. c. 11, 294 and 18 & 19 Vict c. 15, to apply to crown debts. Kot to be bound to see to the application of purchase money. Funiabment of vendor, &c. for fraudulent concealment of deeds, &c. or falsifying pedigree. Interpretation of terns. Appendix. plained and ameoded by the Act of the session of the eighteenth and nineteenth years of Queen Victoria, chapter fifteen, shall extend and apply to every such judgment, statute, recognizance, inquisition, obli- . gation, specialty, or acceptance of office as is by section eight of the first-mentioned A.ct required to be registered, so that it shall be obliga-' tory on the crown, in order to bind the lands, tenements, or heredita* ments of its debtors or accountants, as against purchasers, mortgagees, or creditors becoming such after the thirty-first day of December, one thousand eight hundred and fifty-nine, to re-register in like manner as it is obligatory on a private person, and so that notice of any such judg* ment, statute, recognizance, inquisition, obligation, specialty, or accep- tance of office, not duly re- registered, shall not avail against purchasers, mortgag;ees, or creditors becoming such after the thirty-first day of December, one thousand eight hundred and fifty-nine, as to lands, tenements, or hereditaments ; and this provision shall apply to every such judgment, statute, recognizance, inquisition, obligation, specialty, or acceptance of office as since the passing of the first-mentioned Act has been registered under the provisions therein contained, or as shall hereafter be so registered : this section shall not extend to Ireland. 23. The hoiidjide payment to and the receipt of any person to whom any purchase or mortgage- money shall be payable upon any express or implied trust shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplica- tion thereof, unless the contrary shall be expressly declared by the in- strument creating the trust or security. 24. Any seller or mortgagor of land, or of any chattels, real or personal, or choses in action, conveyed or assigned to a purchaser, or the solicitor or agent of any such seller or mortgagor, who shall after the passing of tliis Act conceal any settlement, deed, will, or other instrument material to the title or any incumbrance from the purchaser, or falsify any pedigree upon which the title does or may depend, in order to induce him to accept the title offered or produced to him, with intent in any of such cases to defraud, shall be guilty of a misdemeanor, and being found guilty shall be liable, at the discretic^ of the court, to suffer such punishment by fine or imprisonment for any time not exceeding two years, with or without hard labour, or by both, as the court shall award, and shall also be liable to an action for damages at the suit of the purchaser or mortgagee, or those claiming under the purchaser or mortgagee, for any loss sustained by them or either or any of them in consequence of the settlement, deed, will, or other instru- ments or incumbrance so concealed, or of any claim made by any person under such pedigree, but whose right was concealed by the falsification of such pedigree , and in estimating such damages, where the estate shall be recovered from such purchaser or mortgagee, or from those claiming under the purchaser or mortgagee, regard shall be had to any expenditure by them or either or any of them in improvements on the land ; but no prosecution for any offence included in this section against any seller or mortgagor, or any solicitor or agent, shall be commenced without the sanction of Her Majesty's attorney-general, or in case that office be vacant of Her Majesty's solicitor-general ; and no such sanction shall be given without such previous notice of the application for leave to prosecute to the person intended to be prose- cuted as the attorney-general or the solicitor-general (as the case may be) shall direct. 25. In the construction of the previous provisions in this Act the term " land " shall be taken to include all tenements and heredi- 22 4r 23 Vict. Cap. 35. 295 taments, and any part or share of or estate or interest in any tenements or hereditaments, of what tenure or kind soever ; and Tlie term " mortgage" shall be taken to include every instrument by virtue whereof land is in any manner conveyed, assigned, pledged, or charged as security for the repayment of money or money's worth, lent, and to be reconveyed, re-assigned, or released on satisfaction of the debt ; and The term ■' mortgagor " shall be taken to include every person by whom any such conveyance, assignment, pledge, or charge as aforesaid shall be made ; and The term " mortgagee " shall be taken to include every person to whom or in whose favour any such conveyance, assignment, pledge, or charge as aforesaid is made or transferred : The term "judgment" shall be taken to include registered decrees, orders of courts of equity and bankruptcy, and other orders having the operation of judgments. Trustees and Executors. 26. No trustee, executor, or administrator making any payment or Trustee Ice doing any act hondjide under or in pursuance of any power of attorney making' payment shall be liable for the monies so paid or the Act so done by reason that ^^^'' fov%i of the person who gave the power of attorney was dead at the time of to be"uaWe bj such payment or act, or had done some act to avoid the power, pro- leason of death vided that the fact of the death, or of the doing of such act' as last "nch'^owSy"'^ aforesaid, at the time of such payment or act bona fide done as afore- said bysuch trustee, executor, or administrator, was not known to him : provided always, that nothing herein contained shall in any manner affect or prejudice the right of any person entitled to the money against the person to whom such payment shall have been made, but that such person so entitled shall have the same remedy against such person to whom such payment shall be made as he would have had against the trustee, executor, or administrator if the money had not been paid away under such power of attorney. 27. Where, an executor or administrator, liable as such to the rents, Asto liability covenants, or agreements contained in any lease or agreement for a of executor or lease granted or assigned to the testator or intestate whose estate is res^ect^**"*" ' being administered, shall have satisfied all such liabilities under the covenants, or ' said lease or agreement for a lease as may have accrued due and been agreements. claimed up to the time of the assignment hereafter mentioned, and shall have set apart a sufiBcient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property demised, or agreed to be demised, although the period for laying out the same may not have arrived, and shall have assigned the lease or agreement for a lease to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part, or any further part (as the case may be,) of the personal estate of the deceased to meet any future liability under the said lease or agreement for a lease ; and the executor or administrator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said lease or agreement for a lease ; but nothing herein con- 296 Appendix. As to liability of executor, jcc. in respect of rents, &c. in conveyances on rentficharge. As to distribu- tion of tlie assets of testator or intestate after notice given by executor or administrator. Trustee, execu- tor, &c. may apply by pe- tition to judge of Chancery for opinion, advice, &c. in manage- ment, &c., of trust property. tained shall prejudice the right of the lessor or those claiming under him to follow the assets of the deceased into the hands of the person or persons to or amongst whom the said assets may have been dis- tributed. 28. Id like manner, where any executor or Administrator, liable as such to the rent, covenants, or agreements contained in any convey- ance on chief rent or rentcharge (whether any such rent be by limita- tion of use, grant, or reservation,) or agreement for such conveyance, granted or assigned to or made and entered into with the testator or intestate whose estate is being administered, shall have satisfied all such liabilities under the said conveyance, or agreement for a conveyance, as may have accrued due and been claimed up to the time of the con- veyance hereafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the grantee to be laid out on the property conveyed, or agreed to be conveyed, although the period for laying out the same may not have arrived, and shall have conveyed such property, or assigned the said agreement for such con- veyance as aforesaid, to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto .respectively, without appropriating any part or any further part (as the case may be) of the personal estate of the deceased to meet any future liability under the said conveyance or agreement for a conveyance ; and the executor or administrator so dis- tributing the residuary estate shall not, after having made or executed such conveyance or assignment, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any »Hbsequeat claim under the said conveyance, or agreement for con- veyance ; but nothing herein contained shall prejudice the right of the gralUor, or those claiming under him, to follow the assets of the de- ceased into the hands of the person or persons to or among whom the said assets may have been distributed. 29. Where an executor or administrator shall have given such or the like notices as in the opinion of the court in which such executor or administrator is sought to be charged would have been given by the court of Chancery in an administration suit, for creditors and others to send in to the executor or administrator their claiirs against the estate of the testator or intestate, such executor or administrator shall, at the expiration of the time named in the said notices or the last of the said notices for the sending in such claims, be at liberty to distri- bute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which such executor or administrator has then notice, and shall not be liable for the assets or any part thereof so distributed to any person of whose claim such executor or administrator shall not have had notice at the time of distribution of the said assets or a part thereof, as the case may be ; but nothing in the present Act contained shall prejudice the right of any creditor or claimant to follow the assets or any part thereof into the hands of the person or persons who may have received the same respectively. 30. Any trustee, executor, or administrator shall be at liberty, without the institution of a suit, to apply by petition to any judge of the High Court of Chancery, or by summons upon a written state- ment to any such Judge at chambers, for the opinion, advice, or direc- tion of such judge on any question respi cting the management or ad- ministration of the trust property or the assets of any testator or 22 ^ 23 net. Cap. 35. 297 intestate, such application to be served upon or the hearing thereof to be attended by all persons interested in such application, or such of them as the said judge shall think expedient ; and the trustee, executor, or administrator acting upon the opinion, advice, or direction given by the said judge shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator in the subject matter of the said application ; provided nevertheless, that this Act shall not extend to indemnify any trustee, executor, or administrator in respect of any act done in accordance with such opi- nion, advice, or direction as aforesaid, if such trustee, executor, or administrator shall have been guilty of any fraud or wilful concealment or misrepresentation in obtaining such opinion, advice, or direction ; and the costs of such application as aforesaid shall be in the discre- tion of the judge to whom the said application shall be made. 31. Every deed, will, or other instrument creating a trust either ex- Every trust pressly or by implication shall, without prejudice to the clauses actually 'nstrumem to contained therein, be deemed to contain a clause in the words or to contain clauses the effect following ; that is to say, " That the trustees or trustee for fof 'he indem- the time being of the said deed, will, or other instrument shall be re- buraemoit o"the spectively chargeable only for such monies, stocks, funds, and securi- trustees. ties as they shall respectively actually receive, notwithstanding their respectively signing any receipt for the sake of conformity, and shall be answerable and accountable only for their own acts, receipts, neglects, or defaults,and not for those of each other, nor for any banker, broker, or other person with whom any trust monies or securities may be deposited nor for the insufficiency or deficiency of any stocks, funds, or securities, nor for any other loss, unless the same shall happen through their own wilful default respectively ; and also that it shall be lawful for the trustees or trustee for the time being of the said deed, will, or other instrument to reimburse themselves or himself or pay or discharge out of the trust premises all expenses incurred in or about the execution of the trusts or powers of the said deed, will, or other instrument." 32. When a trustee, executor, or administrator shall not, by some As to invest- in^tromeuts creating his trust, be expressly forbidden to invest any trust "™t|eaf fund on real securities, in any part of the United Kingdom, or on the stock of the Bank of England or Ireland, or on East India Stock, it shall be lawful for such trustee, executor, or administrator to invest such trust fund on such securities or stock ; and he shall not be liable on that account as for a breach of trust, provided that such investment shall in other respects be reasonable and proper. Extent of Act. 33. This Act shall not extend to Scotland, A„t „ot ^g extend to Scotland. CHAPTEK II. 13 & 14 VICT. Cap. 60. An Act to consolidate and amend the Laws relating to the Conveyance and Transfer of Real and Personal Property vested in Mortgagees and Trustees. [5th August, 1850.] Whereas an Act was passed io the first year of the reign of His late 11 Geo. 4 and Majesty, King William the Fourth, intituled "An Act for amending 1 w. 4, C.60. jjjg Ljj^g respecting Conveyances and Transfers of Estates and Funds vested in Trustees and Mortgagees, and for enabling Courts of Equity to give Effect to their Decrees and Orders in certain Cases:" and whereas an Act was passed in the fifth year of the reign of his late 4 & 5 w. 4, Majesty, King William the Fourth, intituled " An Act for the Amend- "' ■ ment of the Law relative to the Escheat and Forfeiture of Real and Personal Property holden in trust :" and whereas an Act was passed 1 & 2 Vict. in the second year of the reign of Her present Majesty, intituled " An "■ 88- Act to remove Doubts respecting Conveyances of Estates vested in Heirs and Devisees of Mortgagees :" and whereas it is expedient that the provisions of the said Acts should be consolidated and enlarged : be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, that all proceedings under the said Acts or any of them commenced before the passing of this Act may be proceeded with under the said recited Acts, or according to the provisions of this Act, as shall be thought expedient, and, subject as aforesaid, that the said recited Acts shall be and the same are hereby repealed : provided al- ways, that the several Acts repealed by the said recited Acts shall not be revived, and that such repeal shall only be on and after this Act coming into operation. Interpretation ^' whereas it is expedient to define the meaning in which cer- of terms. tain words are hereafter vised : it is declared that the several words hereinafter named are herein used and applied in the manner following respectively ; (that is to say,) The word " lands" shall extend to and include manors, messuages, tenements, and hereditaments, corporeal and incorporeal, of every tenure or description, whatever may be the estate or interest therein : The word '' stock" shall mean any fund, annuity, or security trans- ferable in books kept by any company or society established or to be established, or transferable by deed alone, or by deed accom- panied by other formalities, and any share or interest therein : 13 4" 14 Vict. Cap. 60. 299 The word " seised" shall be applicable to any vested estate for life or of a greater description, and shall extend to estates at law and in equity, in possession or in futurity, in any lands : The word " possessed " shall be applicable to any vested estate less than a life estate, at law or in equity, in possession or in expec- tancy, in any lands : The words " contingent right," as applied to lands, shall mean a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or future, and whether vested or con- tingent : The words " convey" and " conveyance," applied to any person, shall mean the execution by such person of every necessary or suitable assurance for conveying or disposing to another lands whereof such person is seised or entitled to contingent right, either for the whole estate of the person conveying or disposing, or for any less estate, together with the performance of all formalities required by law to the validity of such conveyance, including the Acts to be performed by married women and tenants in tail in accordance with the provisions of an Act passed in the fourth year of the reign of His late Majesty King William the Fourth, intituled " An Act for the Abolition of Fines and Recoveries, and 3 & 4 Will. 4, the Substitution of more simple Modes of Assurance," and includ- "• '■*• ing also surrenders and other acts which a tenant of customary or copyhold lands can himself perform preparatory to or in aid of a complete assurance of such customary or copyhold lands : The words " assign " and " assignment " shall mean the execution and performance by a person of every necessary or suitable deed or act for assigning, surrendering, or otherwise transferring lands of which such person is possessed, either for the whole estate of the person so possessed or for any less estate : The word " transfer " shall mean the execution and performance of every deed and act by which a person entitled to stock can transfer such stock from himself to another : The words " Lord Chancellor" shall mean as well the Lord Chancellor of Great Britain as any lord keeper or lords commissioners of the great seal for the time being : The words " Lord Chancellor of Ireland " shall mean as well the Lord Chancellor of Ireland as any keeper or lords commissioners of the great seal of Ireland for the time being : The word " trust " shall not mean the duties incident to an estate conveyed byway of mortgage; but, with this exception, the words " trust " and " trustee" shall extend to and include implied and constructive trusts, and shall extend to and include cases where the trustee has some beneficial estate or interest in the subject of the trust, and shall extend to and include the duties incident to the office of personal representative of a deceased person : The word "lunatic" shall mean any person who shall have been found to be a lunatic upon a commission of inquiry in the nature of a writ de lunatico inquirendo : The expression " person of unsound mind" shall mean any person, not an infant, who, not having been found to be a lunatic, shall be incapable from infirmity of mind to manage his own affairs : The word " devisee " shall, in addition to its ordinary signification, Y 300 Lord Chancellor may convey estates of lunatic trustees and mortgagees ; may convey tion'.ingent rigtits. Lord Chancellor may transfer Block of lunatic trustees and mortgagees. Power to transfer stock of deceased person. Appendix. mean the heir of a devisee and the deviaeee of an heir, and ge- nerally any person claiming an interest in the lands of a deceased person, not as heir of such deceased person, but by a title depen- dent solely upon the operation of the laws concerning devise and descent : The word " mortgage " shall be applicable to every estate, interest, or property in lands or personal estate which would in a court of equity be deemed merely a security for money : The word " person " used and referred to in the masculine gender shall include a female as well as a male, and shall include a body corporate : And generally, unless the contrary shall appear from the context, every word importing the singular number only shall extend to several persons or things, and every word importing the plural number shall apply to one person or thing, and every word importing the masculine gender only shall extend to a female. 3. And be it enacted, that when any lunatic £«■ person of unsound mind shall be seised or possessed of any lands upon any trustor by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted by virtue of the Queen's sign manual with the care of the persons and estates of lunatics, to make an order that such lands be vested in such person or persons in such manner and for such estate as he shall direct ; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate. 4 And be it enacted, that when any lunatic or person of unsound mind shall be entitled to any contingent right in any lands upon any trust or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted as atoresaid, to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said Lord Chancellor shall direct ; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a deed so releasing or disposing of the contingent right. 5. And be it enacted, that when any lunatic or person of unsound mind shall be solely entitled to any stock or to any chose in action upon any trust or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order Treating in any person or persons the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such cAose in action, or any interest in respect thereof; and when any person or persons shall be entitled jointly with any lunatic or person of unsound mind to any stock or cAose in action upon any trust or by way of mortgage, it shall be lawful for the said Lord Chancellor to make an order vesting the right to transfer such stock, or to receive the divi- dends or income thereof, or to sue for and recover such cAose in arlion, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or per- sons together with any other person or persons the said Lord Chancellor may appoint. 6. And be it enacted, that when any stock shall be standing in the name of any deceased person whose personal representative is a lunatic or person of unsound mind or when any chose in action shall be vested in any lunatic or person of unsound mind as the personal represen- tative of a deceased person, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order vesting the right to transfer 14 # 15 net. Cap. 60. 301 such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in any person or persons he may appoint. 7. And be it enacted, that where any infant shall be seised or pos- Court of sessed of any lands upon any trust or by way of mortgage, it shall be Chancery lawful for the court of Chancery to make an order vesting such lands ^lYteToflnfant in such person or persons in such manner and for such estate as the trustees and said court shall direct ; and the order shall have the same effect as if ?'°'''s»s«'"'- the infant trustee or mortgagee had been twenty-one years of age, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate. 8. And be it enacted, that where any infant shall be entitled to any Contingent contingent right in any lands upon any trust or by way of mortgage, "ghts of infant it shall be lawful for the court of Chancery to make an order wholly mortglgMs^ releasing such lands from such contingent right, or disposing of the same to such person or persons as the said court shall dirt ct ; and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly executed a deed so releasing or disposing of the contingent right. 9. And be it enacted, that when any person solely seised or possessed court of of any lands upon any trust shall be out of the jurisdiction of the Chancery may- court of Chancery, or cannot be found, it shall be lawful for the said e°tate''of''a court to make an order vesting such lands in such person or persons trusteee out of in such manner and for such estate as the said court shall direct ; and 'he jurisdiction the order shall have the same effect as if the trustee had duly executed "=<""■ ■ a conveyance or assignment of the lands in the same manner and for the same estate. 10. And be it enacted, that when any person or persons shall be Court may make seised or possessed of any lands jointly with a person out of the iuris- "'.'^^'^ '" ""^^ diction of the court of Chancery, or who cannot be found, it shall be are seised of lawful for the said court to make an order vesting the lands in the 'ands jontly person or persons so jointly seised or possessed, or in such last-men- ^f juHsd^cUon"' tioned person or persons together with any other person or persons, in of court, &c. such manner and for such estate as the said court shall direct j and the order shall have the same effect as if the trustee out of the jurisdic- tion, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same manner for the same estate. 11. And be it enacted, that when any person solely entitled to a Contingent riglitg contingent right in any lands upon any trust shall be out of the juris- '■'"stees. diction of the court of Chancery, or cannot be found, it shall be lawful for the said court to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or per- sons as the said court shall direct ; and the order shall have the same effect as if the trustee had duly executed a conveyance so releasing or disposing of the contingent right 12. And be it enacted, that when any person jointly entitled with court may mak« any other person or persons to a contingent right in any lands upon ""-dor in cases trust shall be out of the jurisdiction of the court of Chancery, or rre^j'ointiy en- cannot be found, it shall be lawful for the said court to make an order titled with disposing of the contingent right of the person out of the jurisdiction, °f'^^l ?urisdic- or who cannot be found, to the person or persons so jointly entitled as tion of the court aforesaid, or to such last-mentioned person or persons together with '? a contingent any other person or persons ; and the order shall have the same "'"' ' ""'"'• effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance so releasing or disposing of the con- tingent right. Y 2 302 When it is uncertain which of several trustees was the BurviTor. When it is uncertain whether the last trustee be living or dead. When trustee dies without an heir. Contingent right of unborn trus- tee. Power to convey in place of a refusing trustee. Power to convey in place of per- son entitled to contingent right. Appendix. 13. And be it enacted, that where there shall have been two or more persona jointly seised or possessed of any lands upon any trust, and it shall be uncertain which of such trustees was the survivor, it shall be lawful for the court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct ; and the order shall have the same effect as if the survivor of such trustees had duly executed a convey- ance or assignment of the lands in the same manner for the same estate. 14. And be it enacted, that where any one or more person or per- sons shall have been seised or possessed of any lands upon any trust, and it shall not be known, as to the trustee last known to have been seised or possessed, whether he be living or dead, it shall be lawful for the court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct ; and the order shall have the same effect as if the last trustee bad duly executed a conveyance or assignment of the lands in the same manner for the same estate. 15. And be it enacted, that when any person seised of any lands upon any trust shall have died intestate as to such lands without an heir, or shall have died and it shall not be known who is his heir or devisee, it shall be lawful for the court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct ; and the order shall have the same effect as if the heir or devisee of such trustee bad duly executed a conveyance of the lands in the same manner for the same estate. 16. And be it enacted, that when any lands are subject to a con- tingent right in an unborn person or class of unborn persons who upon coming into existence would in respect thereof become seised or possessed of such lands upon any trust, it shall be lawful for the court of Chancery to make an order which shall wholly release and discharge such lands from such contingent right in such unborn person or class of unborn persons, or to make an order which shall vest in any person or persons the estate or estates which such unborn person or i i.ss of unborn persons would upon coming into existence be seised or pos- sessed of in such lands. 17. And be it enacted, that where any person jointly or solely seised or possessed of any lands upon any trust shall, after a demand by a person entitled to require a conveyance or assignment of such lands, or a duly authorized agent of such last-mentioned person, have stated in writing that he vf ill not convey or assign the same, or shall neglect or refuse to convey or assign such lands for the space of twenty -eight days next after a proper deed for conveying or assigning the same shall have been tendered to him by any person entitled to require the same, or by a duly authorized agent of such last-mentioned person, it shall be lawful for the court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct ; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner for the same estate. 18. And be it enacted, that where any person jointly or solely en- titled to a contingent right in any lands upon any trust shall, after a demand for a conveyance or release of such contingent right by a person entitled to require the same, or a duly authorized agent of such last- meatloned person, have stated in writing that 'he will not convey or 13 «f 14 VicL Cap. 60. 303 release such contingent right, or shall neglect or refuse to convey or release such contingent right for the space of twenty-eight days next after a proper deed for conveying or releasing the same shall have been tendered to him by any person entitled to require the same, or by a duly authorized agent of such last-mentioned person, it shall be lawful for the court of Chancery to make an order releasing or dis- posing of such contingent right in such manner as it shall direct ; and the order shall have the same eflFect as if the trustees 8o neglecting or refusing had duly executed a conveyance so releasing or disposing of the contingent right. 19. And be it enacted, that when any person to whom any lands fewer to conrey have been conveyed by way of mortgage shall have died without having gages."' " °"" entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of such mortgage shall have been paid to a person entitled to receive the same, or such last-men- tioned person shall consent to an order for the reconveyance of such lands, then in any of the following cases it shall be lawful for the court of Chancery to make an order vesting such lands in such, person or persons in such manner and for such estate as the said court shall direct ; that is to say, When an heir or devisee of such mortgagee shall be out of the juris- diction of the court of Chancery, or cannot be found : When an heir or devisee of such mortgagee shall, upon a demand by a person entitled to require a conveyance of such lands, or a duly authorized agent of such last-mentioned person, have stated in writing that he will not convey the same, or shall not convey the same for the space of twenty-eight days next after a proper deed for conveying such lands shall have been tendered to him by a person entitled as aforesaid, or a duly authorized agent of such last-mentioned person : When it shall be uncertain -which of several devisees of such mort- gagee was the survivor : When it shall be uncertain as to the survivor of several devisees of such mortgagee, or as to the heir of such mortgagee whether he be living or dead : When such mortgagee shall have died intestate as to such lands, and without an heir, or shall have died and it shall not be known who is his heir or devisee : Aad the order of the said court of Chancery made in any one of the foregoing cases shall have the same effect as if the heir or devisee or surviving devisee, as the case may be, had duly executed a con- veyance or assignment of the lands in the same manner and for the same estate. 20. And be it enacted, that in every case where the Lord Chancellor, Power^to^appoint intrusted as aforesaid, or the court of Chancery, shall under the pro- venn^erto"" visions of this Act, be enabled to make an order having the effect of a cases. conveyance or assignment of any lands, or haviiig the effect of a release or disposition of the contingent right of any person or persons, born or unborn, it shall also be lawful for the Lord Chancellor, intrusted as aforesaid, or the court of Chancery, as the case may be, should it be deemed more convenient, to make an order appointmg a person to con- vey or assign such lands, or release or dispose of such contmgent right • and the conveyance or assignment, or release or disposition, of thepe'rson so appointed, shall, when in conformity with the terms of the order by which he is appointed, have the same effect, m conveying or assignig the lands, or releasing or disposing pf the contingent right, 304 Appendix. as an order of the Lord Chancellor, intrusted as aforesaid, or the cdarT of Chancery, would in the particular case have had under the pro- visions of this Act ; and in every case where the Lord Chancellor, in- trusted as aforesaid, or the court of Chancery, shall, under the pro- visions of this Act, be enabled to make an order vesting in any person or persons the right to transfer any stock transferable in the books o{ the governor and company of the Bank of England, or of any other company or society established or to be established, it shall also be lawful for the Lord Chancellor, intrusted as aforesaid, or the court of Chancery, if it be deemed more convenient, to make an order directing the secretary, deputy secretary, or accountant general for the time being of the governor and company of the Bank of England, or any officer of such other company or society, at once to transfer or join in transferring the stock to the person or persons to be named in the order; and this Act shall be a full and complete indemnity and discharge to the governor and company of the Bank of England, and all other com- panies or societies and their officers and servants, for all Acts done or permitted to be done pursuant thereto. As to lands in 21. And be it enacted, that as to any lands situated within the DurSun ' *"^ duchy of Lancaster or the counties palatine of Lancaster or Durham, it shall be lawful for the court of the duchy chamber of Lancaster, the court of Chancery in the county palatine of Lancaster, or the court of Chancery in the county palatine of Durham, to make a like order in the same cases as to any lands within the jurisdiction of the same courts respectively as the court of Chancery has under the provisions herein-before contained been enabled to make concerning any lands; and every such order of the court of the duchy chamber of Lancaster, the court of Chancery in the county palatine of Lancaster, or the court of Chancery in the county palatine of Durham, shall, as to such lands, have the same effect as an order of the court of Chancery : provided always, that no person who is anywhere within the limits of the juris- diction of the High Court of Chancery shall be deemed by such local courts to be an absent trustee or mortgagee within the meaning of this Act. When trustees of 22. And be it enacted, that when any person or persons shall be jiristotion! ""^ jointly entitled with any person out of the jurisdiction of the court of Chancery, or who cannot be found, or concerning whom it shall be un- certEun whether he be living or dead, to any stock or chose in action upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, cither in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons together with any person or persons the said court may appoint ; and when any sole trustee of any stock or chose in action shall be out of the jurisdiction of the said court, or cannot be found, or it shall be un- certain whether he be living or dead, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in any person or persons the said court may appoint. When trustee of 23. And be it enacted, that where any sole trustee of any stock or Sn^f'"'' '° '^^"^^ '" "''''"" ^^^" neglect or refuse to transfer such stock,' or to re- ceive the dividends or income thereof, or to sue for or recover such cAose in action, or any interest in respect thereof, according to the direction of the person absolutely entitled thereto, for the space of twentv-eight 13 §- 14 Vict. Cap. 60. 305 days next after a request in writing for that purpose shall have been made to him by the person absolutely entitled thereto, it shall be lawful for the court of Chancery to make an order vesting the sole right to transfer such stock, or to receive the dividends or incime thereof, or to sue for and recover such cftose in action, or any interest in respect thereof, in such person or persons as the said court may appoint. 24. And be it enacted, that where any one of the trustees of any ^vhen one of stock or chose in acftion shall neglect or refuse to transfer such stock, several trustee! or to receive the dividends or income thereof, or to sue for or recover ?' !'°°'t,?'"^°' ,,. . ,. ,-.. -, totiansieror sucii cftosB t» artton according to the directions of the person abso- receive and pay lutely entitled thereto, for the space of twenty-eight days next after a '"'«"■ dividends, request in writing for that purpose shall have been made to him or her by such person, it shall be lawful for the court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, in the other tiustee or trustees of the said stock or cAose in action, or in any person or persons whom the said court may appoint jointly with such other trustee or trustees. 25. And be it enacted, that when any stock shall be standing in the when stock is sole name of a deceased person, and his or her personal representative standing in tlie shall be out of the jurisdiction of the court of Chancery, or cannot be T^fj"' '"'°' -,.1. . 11 . . .,-1 ceased person. found, or it shall be uncertain whether such personal representative be living or dead, or such personal representative shall neglect or refuse to transfer such stock, or receive the dividends or income thereof, accord- ing to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that pur - pose shall have been made to him by the person entitled as aforesaid, it shall be lawful for the court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said court may appoint. 26. And be it enacted, that where any order shall have been made Effect of an under any of the provisions of this Act vesting the right to any stock order vesting (he in any person or persons appointed by the Lord Chancellor, intrusted as ^irlmbfetMk. aforesaid, or the court of Chancery, such legal right shall vest accord- ingly, and thereupon the person or persons so appointed are hereby authorized and empowered to execute all deeds and powers of attorney, and to perform ail 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 orders and tie Bank of England, and all companies and associa- tions whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terms of such order as the said Bank of England, or such companies, associations, or persons, would have been bound and compellable to comply with the requisitions of the person in whose place such appointment shall have been made, and shall be equally indemnified in complying with the requisition of such person or persons so appointed as they would have been indemnified in complying with the requisition of the person in whose place such appointment shall have been made ; and after notice in writing of any such order of the Lord Chancellor, intrusted as afore- said, or of the court of Chancery, concerning any stock shall have been given, it shall not he lawful for the Bank of England, or any company or association whatever, or any person having received such notice, to act upon the requisition of the person in whose place an appointment 306 Appendix. Effect of an order vesting legal right in a cliose in action. Effect of an order vesting copyliold lands, or appointing any person to shall have been made in any matter whatever relating to the transfer of ' such stock, or the payment of the dividends or produce thereof. 27. And be it enacted, that where any order shall have been made under the provisions of this Act, either by the Lord Chancellor, intrusted as aforesaid, or by the court of Chancery, vesting the legal right to sue for or recover any chose in action or any interest in respect thereof in any person or persons, such legal right shall vest accordingly, and thereupon it shall be lawful for the person or persons so appointed to carry on, commence, and prosecute, in his or their own name or names, any action, suit, or other proceeding at law or in equity for the recovery of such chose in action, in the same manner in all respects as the person in whose place an appointment shall have been made could have sued for or recovered such chose in action. 28. And be it enacted, that whensoever, under any of the provisions of this Act, an order shall be made either by the Lord Chancellor, in- trusted as aforesaid, or the court of Chancery, vesting any copyhold or customary lands in any person or persons, and such order shall be imday ""'''''"'''' made with the consent of the lord or lady of the manor whereof such lands are holden, then the lands shall, without any surrender or ad- mittance in respect thereof, vest accordingly ; and whenever, under any of the provisions of this Act, an order shall be made either by the Lord Chancellor, intrusted as aforesaid, or the court of Chancery, appointing any person or persons to convey or assign any copyhold or customary lands, it shall be lawful for such person or persons to do all acts and execute all instruments for the purpose of completing the assurance of such lands ; and all such acts and instruments so done and executed shall have the same effect, and every lord and lady of a manor, and every other person, shall, subject to the customs of the manor, and the usual payments, be equally bound and compellable to make admittance to such lands, and to do all other acts for the purpose of completing the assurance thereof, as if the persons in whose place an appointment shall have been made, being free from any disability, had duly done and executed such acts and instruments. When a decree is 29. And be it enacted, that when a decree shall have been made by any court of equity directing the sale of any lands for the payment of the debts of a deceased person, every person seised or possessed of such lands, or entitled to a contingent right therein, as heir, or under the will of such deceased debtor, shall be deemed to be so seised or pos- sessed or entitled, as the case may be, upon a trust within the meaning of this Act ; and the court of Chancery is hereby empowered to make an order wholly discharging the contingent right, under the will of such deceased debtor, of any unborn person. 30. And be it enacted, that where any decree shall be made by any court of equity for the specific performance of a contract concerning comprised in any 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 other- wise, it shall be lawful for the said court to declare that any of the parties to the said suit wherein such decree is made are trustees of such lands or any part thereof, within the meaning of this Act, or to declare concerning the interests 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 during his lifetime a party to the contract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who upon coming into existence would be trustees within the meaning of this Act, and there- real estate for payment of debts. Court to declare what parties are trustees of lands suit, and as to the interests of persons unborni 13 if 14 Vict. Cap. 60. 307 upon it shall be lawful for the Lord Chancellor, intrusted as aforesaid, or the court of Chancery, as the case may be, to make such order or orders as to the estates, rights, and interests of such persons, born or unborn, as thesaid court or the said Lord Chancellor mightunder the provisions of this Act make concerning the estates, rights, and interests of trustees born or unborn. 31. And be it enacted, that it shall be lawful for the Lord Chancellor, Power to mako intrusted as aforesaid, or the court of Chancery, to make declarations fhe'righuo"" and give directions concerning the manner in which the right to any transfer stock to stock or chose in action vested under the provisions of this Act shall be ^ exercised, exercised ; and thereupon the person or persons in whom such right shall be vested shall be compellable to obey such directions and delara- tions by the same process as that by which other orders under this Act are enforced. 32. And be it enacted, that whenever it shall be expedient to appoint Power to court a new trustee or new trustees, and it shall be found inexpedient, diffi- •" "'?''? °'^"' cult, or impracticable so to do without the assistance of the court of trusteei!"^ " " Chancery, it shall be lawful for the said court of Chancery to make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees. 33. And be it enacted, that the person or persons who, upon the ™'°'" *""•**' making of such order as last aforesaid, shall be trustee or trustees, shall powers ofirua- have all the same rights and powers as he or they would have had if tees appointed appointed by decree in a suit duly instituted. *'' ^'"™ " °""* 34. And be it enacted, that it shall be lawful for the said court of Power to court Chancery, upon making any order for appointing a new trustee or new n°ewTrus^e3V trustees, either by the same or by any subsequent order to direct that any lands subject to the trust shall vest in the person or persons who upon the appointment shall be the trustee or trustees for such estate as the court shall direct ; and such order shall have the same eflfect as if the person or persons who before such order were the trustee or trus- tees (if any) had duly executed all proper conveyances and assignments of such lands for such estate. 35. And be it enacted, that it shall be lawful for the said court of Power to court Chancery, upon making any order for appointing a new trustee or new l^^'^l il^'u" trustees, either by the same or by any subsequent order to vest the new trustees, right to call for a transfer of any stock subject to the trust, or to receive the dividends or income thereof, or to sue for or recover any cAo*e 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. 36. And be it enacted, that any such appointment by the court of Old trustees not new trustees, and any such conveyance, assignment, or transfer as '"„^ uMnij'^ aforesaid, shall 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. 37. And be it enacted, that an order, under any of the hereinbefore who may apply, contained provisions, for the appointment of a new trustee or trustees, or concerning any lands, stock, orcAose in action subject to a trust, may be made upon the application of any person beneficially interested in such lands stock, or chose in action, whether under disability or not, or upon the application of any person duly appointed as a trustee thereof; and that an order under any of the provisions hereinbefore contained concerning any lands, stock, or chose in action subject to a mortgage may be made on the application of any person beneficially interested in 308 Appendix. in the first in- stance. «the equity of redemption, whether under disability or not, or of any person interested in the monies secured by such mortgage. Power to go 38. And be it enacted, that when any person shall deem himself before the master entitled to an order under any of the provisions hereinbefore contained, '""""""" either from the Lord Chancellor, intrusted as aforesaid, or from the court of Chancery, it shall be lawful for him to exhibit before any one of the masters of the High Court of Chancery a statement of the facts whereon such order is sought to be obtained, and adduce evidence in support thereof ; and if such evidence shall be satisfactory to the said master, he shall, at the request of the person adducing such evidence, give a certificate under his hand of the several material facts found by him to be true, and of his opinion that such person is entitled to an order in the form set forth in such certificate. Power to petition 39. And be it enacted, that any person who shall have obtained Sfdch'"']!^ such certificate may apply by motion to the court of Chancery, or to the Lord Chancellor, intrusted as aforesaid, for an order to the effect set forth in such certificate, or for such other order as such person may deem himself entitled to upon the facts found by the master. Power to present 40. And be it enacted, that any person or persons entitled in manner ^"f*?" ™ ""^ aforesaid to apply for an order from the said court of Chancery, or from the Lord Chancellor, intrusted as aforesaid, may, should he so think fit, present a petition in the first instance to the court of Chan- cery, or to the Lord Chancellor, intrusted as aforesaid, for such order as he may deem himself entitled to, and may give evidence by affidavit or otherwise in support of such petition before the said court, or the Lord Chancellor, intrusted as aforesaid, and may serve such person or per- sons with notice of such petition as he may deem entitled to service thereof. 4U And be it enacted, that upon the hearing of any such motion or petition it shall be lawful for the said court or for the said Lord Chan- cellor, should it be deemed necessary, to direct a reference to one of the masters in ordinary of the court of Chancery to inquire into any facts which require such an investigation, or it shall be lawful for the said court or for the said Lord Chancellor to direct such motion or petition to stand over, to enable the pptitioner or petitioners to adduce evidence or further evidence before the said court or before the said Lord Chancellor, or to enable notice or any further notice of such motion or petition to be served upon any person or persons. 42. And be it enacted, that upon the hearing of any such motion or petition, whether any certificate or report from a master shall have been obtained or not, it shall be lawful for the court, or the Lord Chan- cellor, intrusted as aforesaid, to dismiss such motion or petition, with or without costs, or to make an order thereupon in conformity vsrith the provisions of this Act. 43. And be it enacted, that whensoever in any cause or matter, either by the evidence adduced therein, or by the admissions of the parties, or by a report of one of the masters of the court of Chancery, the facts necessary for an order under this Act shall appear to such court to be sufficiently proved, it shall be lawful for the said court, either upon the hearing of the said cause or of any petition or motion in the said cause or matter, to make such order under this Act. 44. And be it enacted, that whenever any order shall be made under this Act, either by the Lord Chancellor, intrusted as aforesaid, or by the founded on cer- court of Chancery, for the purpose of conveying or assigning any lands, to be^Susi™ °'^ ^°'^ *« purpose of releasing or disposing of any contingent right, evidence of the and such order shall be founded on an allegation of the personal inca- What may be done upon peti- tion. Court may dis- miss petition, with or without costs. Power to make an order in a cause. Orders made by tbe court of Ciianceryj 13 ^ 14 Vict. Cap. 60. 309 pacity of a trustee or mortgagee, or on an allegation that a trustee or the matter contained heir or devisee of a mortgagee is out of the jurisdiction of the court of J?,'"'^'' ""^sa- Chancery, 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, intrusted as aforesaid, or the courtof Chancery, has made an order upon such an allegation, shall 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 always, that nothing herein contained shall prevent the court of Chancery directing a recon- veyance or reassignment of any lands conveyed or assigned by any order under this Act, or a redisposition of any contingent right con- veyed or disposed of by such order ; and it shall be lawful for the said court to direct any of the pai-ties to any suit concerning such lands or contingent right to pay any costs occasioned by the order under this Act, when the same shall appear to have been improperly obtained. 45 . And be it enacted, that it shall be lawful for the Lord Chancellor, Trustees of intrusted as aforesaid, or the court of Chancery, to exercise the powers "'•^"''es. herein conferred for the purpose of vesting any lands, stock, or chose in action in the trustee or trustees of any charity or society over which charity or society the said courtof Chancery 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 instru- ment, or by the decree of tlie said court of Chancery, or by order made upon a petition to the said court under any statute authorizing the said court to make an order to that eflfect in a summary way upon petition. 46. And be it enacted, that no lands, stock, or chose in action vested No escheat of in any person upon any trust or by way of mortgage, or any profits Ppp^.'^fus't^OT thereof, shall escheat or be forfeited to her Majesty, her heirs or sue- mortgage, cessors, or to any corporation, lord or lady of a manor, or other person, by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or sur- vive to his or her co-trustee, or descend or vest in his or her represen- tative, as if no such attainder or conviction had taken place. 47. And be it enacted, that nothing contained in this Act shall ^^1°^^^^^"' prevent the escheat or forfeiture of any lands or personal estate vested ^^ forfeiture in any such trustee or mortgagee, so far as relates to any beneficial of beneficial interest therein of any such trustee or mortgagee, but such lands or '"terert- personal estate, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if this Act had not passed. 48. And be it enacted, that where any infant or person of unsound Money of infants mind shall be entitled to any money payable in discharge of any lands, ^"foPndTi",! stock, or chose in action conveyed, assigned, or transferred under this to be paid into Act, it shall be lawful (or the person by whom such money is payable >=<»"■'• to pay the same into the Bank of England, in the name and with the privity of the accountant general, in trust in any cause then depending concerning such money, or, if there shall be no such cause, to the credit of such infant or person of unsound mind, subject to the order or dis- position of the said court ; and it shall be lawful for the said court, upon petition in a summary way, to order any money so paid to be in- vested in the public funds, and to order payment or distribution thereof, or payment of the dividends thereof, as to the said court shall seem 310 Court maj make a decree in tlie absence of a trustee. foners or the master. Costs may be paid out of the estate. Commission concerning per- son of unsound mind. Suit may be di- rected. Powers of court of Chancery Appendix. reasonable ; and every cashier of the Bank of England who shall receive any such money is hereby required to give to the person paying the same a receipt for such money, and such receipt shall be an effectual discharge for the money therein respectively expressed to have been received. 49. And be it enacted, that where in any suit commenced or to be commenced in the court of Chancery it shall be made to appear to the court by aflSdavit that diligent search and inquiry has been made after any person made a defendant, who is only a trustee, to serve bim with the process of the court, and that he cannot be found, it shall be lawful for the said court to hear and determine such cause, and to make such absolute decree therein against every person who shall appear to them to be only a trustee, and not otherwise concerned in interest in the matter in question, in such and the same manner as if such trustee had been duly served with the process of the court, and had appeared and filed his answer thereto, and had also appeared by his counsel and solicitor at the hearing of such cause : Provided always, that no such decree shall bind, affect, or in anywise prejudice any person against whom the same shall be made, without service of process upon him as aforesaid, his heirs, executors, or administrators, for or in respect of any estate, right, or interest which such person shall have at the time of making such decree, for his own use or benefit, or otherwise than as a trustee as aforesaid. 50. And be it enacted, that when any person shall, under the pro- visions of this Act, apply to one of the masters of the court of Chan- cery in the first instance, and adduce evidence for the purpose of ob- taining the certificate of such master as a foundation for an order of the said Lord Chancellor, intrusted as aforesaid, or the said court of Chan- cery, it shall be lawful for the said master to order service of such ap- plication upon any person, or to dismiss such application, and to direct that the costs of any persons consequent thereon shall be paid by the person making the same ; and all orders of the master under this Act shall be enforced by the same process as orders of the court made in any suit against a party thereto. 51. And be it enacted, that the Lord Chancellor, intrusted as afore- said, and the court of Chancery, may order the costs and expenses of and relating to the petitions, orders, directions, conveyances, assignments, and transfers to be made in pursuance of this Act, or any of them, to be paid and raised out of or from the lands or personal estate, or the rents or produce thereof, in respect of which the same respectively shall be made, or in such manner as the said Lord Chancellor or court shall think proper. 52. And be it enacted, that upon any petition being presented under this Act to the Lord Chancellor, intrusted as aforesaid, concerning a person of unsound mind, it shall be lawful for the said Lord Chancellor, should he so think fit, to direct that a commission in the nature of a writ de lunatieo inquirendo shall issue concerning such person, and to postpone making any order upon such petition until a return shall have been made to such commission. 53. And be it enacted, that upon any petition under this Act being presented to the Lord Chancellor, intrusted as aforesaid, or to the court of Chancery, it shall be lawful for the said Lord Chancellor or the said court of Chancery to postpone making any order upon such petition until the right of the petitioner or petitioners shall have been declared in a suit duly instituted for that purpose. 54. And be it enacted, that the powers and authorities given by this 15 ^ 16 Vict. Cap, 5S. 311 Act to the court of Chancery in England shall extend to all lands and '" «^'encJ to pro- personal estate within the dominions, plantations, and colonies belong- colonies. " ing to her Majesty (except Scotland). 55. And be it enacted, that the powers and authorities given by this powers given to Act to the court of Chancery in England shall and may be exercised in court of Chancery like manner and are hereby given and extended to the court of Chancery "^ that courUn* in Ireland with respect to all lands and personal estate in Ireland. Ireland. 56. And be it enacted, that the powers and authorities given by this Powers of Lord Act to the Lord Chancellor of Great Britain, intrusted as aforesaid, shall Chancellor in extend to all lands and personaj estate within any of the dominions, to"property ta plantations, and colonies belonging to her Majesty (except Scotland the colonies. and Ireland). 57. And be it enacted, that the powers and authorities given by this Powers of Lord Act to the Lord Chancellor of Great Britain, intrusted as aforesaid, shall Chancellor in and may be exercised in like manner by and are hereby given to the exercised by Lord Lord Chancellor of Ireland, intrusted as aforesaid, with respect to all Chancellor of lands and personal estate in Ireland. '^ "" ' 58. And be it enacted, that in citing this Act in other Acts of par- Short title. liament, and in legal instruments and in legal proceedings, it shall be suflScient to use the expression "The Trustee Act, 1850." 59. And be it enacted, that this Act shall come into operation on Commencement the first day of November one thousand eight hundred and fifty. "' ^"'■ 15 & 16 VICT. Cap. 55. An Act to extend the Provisions of the " Trustee Act, 1850." [20th June, 1852.] Whereas it is expedient to extend the provisions of the Trustee Act, 1850: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, 1. That when any decree or order shall have been made by any Court of Chan- court of equity directing the sale of any lands for any purpose what- an^oMerfor veit- ever, every person seised or possessed of such land, or entitled to a ing the estate, in contingent right therein, being a party to the suit or proceeding in Ueu of convey- which such decree or order shall have been made, and bound thereby, to the suit "after or being otherwise bound by such decree or order, shall be deemed to a decree or order be so seised or possessed or entitled (as the case may be) upon a trust '""■ ™'°- within the meaning of the Trustee Act, 1850 ; and in every such case it shall be lawful for the court of Chancery, if the said court shall think it expedient for the purpose of carrying such sale into effect, to make an order vesting such lands or any part thereof, for such estate as the court shall think fit, either in any purchaser or in such other person as the court shall direct ; and every such order shall have the same efi'ect as if such person so seised or possessed or entitled had been free from all disability, and had duly executed all proper conveyances and assign- ments of such lands for such estate. 2. That sections numbered seventeen and eighteen in the Queen's Power to make Printer's Copy of the Trustee Act, 1850, be repealed j. and in every case fng^h^e es'Ste?™ 312 Appendix. refuEal or neglect of a trustee to conrey or re- lease. Power to malce an order for the transfer or re- ceipt of dividends of stocif in name of aninfEint trustee. On neglect to transfer stock for 28 days, order may be made Testing riglit to transfer in sucli person as- the court shall ap- point. On like neglect by executor, similar order may be made. Bank of Eng- land and com- panies to comply with such orders. where any person is or shall be jointly or solely seised or possessed of any lands or entitled to a contingent right therein upon any trust, and a demand shall have been made upon such trustee by a person entitled to require a conveyance or assignment of such lands, or a duly autho- rized agent of such last- mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right, it shall be lawful for the court of Chancery, if the said court shall be satisfied that such trustee has wilfully refused or neglected to convey or assign the said lands for the space of twenty-eight days after such demand, to make an order vesting such lands in such person, in such manner and for such estate as the court shall direct, or releasing such contingent right in such manner as the court shall direct; and the said order shall have the same efifect as if the trustee had duly executed a conveyance or assignment of the lands, oi a release nf such right, in the same manner and for the same estate. 3. That when any infant shall be solely entitled to any stock upon any trust, it shall be lawful for the court of Chancery to make an order vesting in any person or persons the right to transfer such stock, or to receive the dividends or income thereof; and when any infant shall be entitled jointly with any other person or persons to any slock upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, either in the person or persons jointly entitled with the infant, or in him or them together with any other person or persons the said court may appoint. 4. That where any person shall neglect or refuse to transfer any stock, or to receive the dividends or income thereof, or to sue for or re- cover any chose in action, or any interest in respect thereof, for the space of twenty-eight days next after an order of tlie court of Chancery for that purpose shall have been served upon him, it shall be lawful for the court of Chancery to make an order vesting all the right of such person, to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said court may appoint. o. When any stock shall be standing in the sole name of a deceased person, and his personal representative shall refuse or neglect to transfer such stock or receive the dividends or income thereof for the space of twenty-eight days next after an order of the court of Chancery for that purpose shall have been served upon him, it shall be lawful for the court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said court may appoint. 6. When any order being or purporting to be under this Actor under the Trustee Act, 18.50, shall be made by the Lord Chancellor intrusted as aforesaid, or by the court of Chancery, vesting the right to any stock, or vesting the right to transfer any stock, or vesting the right to call for the transfer of anv stock, in any person or persons, in every such case the legal right to transfer such stock shall vest accordingly ; and the person or persons so appointed shall be authorized 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, to the extent and in conformity with the terms of the order ; and the Bank of England, and all companies and associations whatever, and all persons shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the 15 # 16 Vict. Cap. 55. 313 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 ap- pointment shall have been made. 7. That every order made or to be made, being or purporting to be indemnity to made under this or the Trustee Act, 1850, by the Lord Chancellor bank and com- intrusted as aforesaid, or by the court of Chancery, and duly passed fn".'*' ^° " °^' and entered, shall be a complete indemnity to the Bank of England, and all companies and associations whatsoever, and all persons, for any act done pursuant thereto ; and it shall not be necessary for the Bank of England, or such company or association, or person, to inquire concerning the propriety of such order, or whether the Lord Chancellor intrusted as aforesaid, or the court of Chancery, bad jurisdiction to make the same. 8. That when any person is or shall be jointly or solely seised or Power to appoint possessed of any lands or entitled to any stock upon any trust, and pew trustees such person has been or shall be convicted of felony, it shall be lawful son'/convkTted for the court of Chancery, upon proof of such conviction, to appoint of felony. any person to be a trustee in the place of such convict, and to make an order for vesting such lands, or the right to transfer such stock, and to receive the dividends or income thereof, in such person to be so appointed trustee ; and such order shall have the same effect as to lands as if the convict trustee had been free from any disability, and had duly executed a conveyance or assignment of his estate and in- terest in the same. 9. That in all cases where it shall be expedient to appoint a new Power to tlie trustee, and it shall be found inexpedient, difficult, or impracticable so oourt to appoint to do without the assistance of the court of Chaucery, it shall be where there lawful for the said court to make an order appointing a new trustee is no existinr; or new trustees, whether there he any existing trustee or not at the '■"^"''• time of making such order. 10. In every case in which the Lord Chancellor intrusted as afore- Chancellor may said has jurisdiction under this Act, or the Trustee Act, 1850, to order jJ^p^^tntoeTt '" a conveyance or transfer of land or stock, or to make a vesting order, of trustees it shall be lawful for him also to make an order appointing a "^^ ^j*°^"Jj," *^°8 trustee or new trustees, in like manner as the court of Chancery may ^shouidbe do in like cases, without its being necessary that the order should be made in Chan- made in Chancery as well as in lunacy, or be passed and entered by "^^^ '"'• the registrar of the court of Chancery. 11. That all the jurisdiction conferred by this Act on the Lord ^;J°^J°„7" Chancellor, instructed by virtue of the Queen's sign manual with the intrusted with care of the persons and estates of lunatics, shall and may be ^i^d, the^care of exercised, and performed by the person or persons for the time being intrusted as aforesaid. »„,,„!,„ 12. That this Act shall be read and construed accordmg to the de- fj^^'^^t ™°- finitions and interpretations contained in the second section of the of Trustee Act, Trustee Act, 1850, and the provisions of the said last- mentioned Act 1850. (except so far as the same are altered by or inconsistent with this Act) shall extend and apply to the cases provided for by this Act, in the same way as if this Act had been incorporated with and had formed part of the said Trustee Act, 1850. .„ j j •^ 13. That every order to be made under the Trustee Act, 1850, ot J^n^l^^^^^o this Act which shall have the effect of a conveyance or assignment of ^ct, i860, or any lands, or a transfer of any such stock as can only be transferred fj^Act '<,be by stamped deed, shall be chargeable with the like amount of stamp f^e ^Ime eiamp A«tv «a it would have been chargeable with if it had been a deed exe- duty as deeds uuiy no 11. "uu, a of convBTttBce. 314 Appendix. cuted by the person or persons seised or possessed of such lands, or entitled to such stoclt ; and every such order shall be duly stamped for denoting the payment of the said duty. 23 & 24 VICT. Cap. US. An Act to give to Trustees, Mortgagees, and others certain Powers now commonly inserted in Settlements, Mortgages, and IVilU. [28th August, I860.] Whereas it is expedient that certain powers and provisions which it is now usual to insert in settlements, mortgages, wills, and other instruments should be made incident to the estates of the persons in- terested, so as to dispense with the necessity of inserting the same in terms in every such instrument : be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament as- sembled, and by the authority of the same, as follows : PART I. Powers of Trustees for Sale, Sfc, and Trustees of renewable Leaseholds. Trustees em- powered to sell may sell In lots, and either by auction or private contract. Sale may be made under special condi- tions, and trus- tees may buy in, &c. 1. In all cases where by any will, deed, or other instrument or settlement it is expressly declared that trustees or other persons therein named or indicated shall have a power of sale, either generally or in any particular event, over any hereditaments named or referred to in or from time to time subject to the uses or trusts of such vfill, deed, or other instrument, it shall be lavirful for such trustees or other persons, whether such hereditaments be vested in them or not, to exercise such power of sale by selling such hereditaments, either together or in lots, and either by auction or private contract, and either at one time or at several times, and (in case the power shall expressly authorize an ex- change) to exchange any hereditaments which for the time being shall be subject to the uses or trusts aforesaid for any other hereditaments in England or Wales or in Ireland (as the case may be), and upon such exchange to give or receive any money for equality of ex- change. 2. It shall be lawful for the person making any such sale or ex- change to insert any such special or other stipulations, either as to title or evidence of title, or otherwise, in any conditions of sale, or contract for sale or exchange, as they shall think fit, and also to buy in the hereditaments or any part thereof at any sale by auction, and to rescind or vary any contract for sale or exchange, and to re-sell the hereditaments which shall be so bought in, or as to which the contract 23 ^ 24 Vict. Cap. 145. 315 shall be so rescinded, without being responsible for any loss- which may be occasioned thereby, and no purchaser under any such sale shall be bound to inquire whether the persons making the same may or may not have in contemplation tuiy particular re-investment of the purchase money in the purchase of any other hereditaments or otherwise. 3. For the purpose of completing any such sale or exchange as Trustees eiep- aforesaid, the persons empowered to sell or exchange as aforesaid shall cising power of have full power to convey or otherwise dispose of the hereditaments powered lo in question, either by way of revocation and appointment of the use, convey. or otherwise, as may be necessary. 4. The money so received upon any such sale or for equality of Moneys arising exchange as aforesaid shall be laid out in the manner indicated in that f °£^ jaid'out"" behalf in the will, deed, or instrument containing the power of sale in other lands; or exchange, or if no such indication be therein contained as to all or any part of such money, then the same shall with all convenient speed be laid out in the purchase of other hereditaments in fee simple in possession to be situate in England or Wales or in Ireland (as the case may be), or of lands of a leasehold or copyhold or customary tenure, which, in the opinion of the persons making the purchase, are convenient to be held therewith or with any other hereditaments for , the time being, subject to the subsisting uses or trusts of the same will, deed, or other instrument of settlement in which the power of sale or exchange was contained ; and all such hereditaments so to be pur- chased or taken in exchange as aforesaid as shall be freeholds of in- heritance shall be settled and assured to the uses, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, and declarations, to which the hereditaments sold or given in exchange were or would have been subject, or as near thereto as the deaths of parties and other intervening accidents will admit of, but not so as to increase or multiply charges ; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be of leasehold or copyhold or customary tenure shall be settled and assured upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisoes, and declara- tions, as shall as nearly as may be correspond with and be similar to the aforesaid uses, trusts, intents, and purposes, powers, provisoes, and declarations, but not so as to increase or multiply charges, and so that if any of the hereditaments so to be purchased shall be held by lease for years the same shall not vest absolutely in any tenant in tail by purchase who shall not attain the age of twenty-one years ; and any such purchase as aforesaid may be made subject to any special conditions as to title or otherwise : provided, that no leasehold tene- ment shall be purchased under the powers hereinbefore contained which is held for a less period than sixty years. 5. Provided nevertheless, that it shall be lawful for the persons or in payment of exercising any such power as aforesaid, if they shall think fit, to apply incumbrances. any money to be received, upon any sale or for equality of exchange as aforesaid, or any part thereof, in lieu of purchasing lands therewith, in or towards paying oflF or discharging any mortgage or other charge or incumbrance which shall or may affect all or any of the hereditament's which shall then be subject to the same uses or trusts as those to which the hereditaments sold or given in exchange ' were or was subject. 6. No money arising from any such sale or exchange of lands or Money arising hereditaments in England or Wales shall be laid out in the purchase of noUo^be^lkid"' lands or hereditaments situate elsewhere than in England or Wales, out, nor lands z 316 Appendix, Until purchase of lands, &:c.» money to be invested at in- terest. Trnstees of re- newable lease- holds may renew. exchanged, else- and no lands situate in England or Wales shall, under any such power where than in aforesaid, be exchanged for any lands or hereditaments situate else- tne country in , , . -n » i -.-.t , . • • r which lands sold where than in England or Wales ; and no money arising irom any or exchanged are guch sale or exchange of lands in Ireland shall be laid out in the situated. purchase of lands or hereditaments situate elsewhere than in Ireland, and no lands or hereditaments situate in Ireland shall, under any such power as aforesaid, be exchanged for any lands or hereditaments situate elsewhere than in Ireland. 7. Until the money to be received upon any sale or for equality of exchange as aforesaid shall be disposed of in the manner herein men- tioned, the same shall be invested at interest for the benefit of the same parties who would be entitled to the hereditaments to be pur- chased therewith as aforesaid, and the rents and profits thereof in case such purchase and settlement as aforesaid were then actually made. 8. It shall be lawful for any trustees of any leaseholds for lives or years which are renewable from time to time, either under any cove- nant or contract or by custom or usual practice, if they shall in their discretion think fit, and it shall be the duty of such trustees, if there- unto required by any person having any beneficial interest, present or future or contingent, in such leaseholds, to use their best endeavours to obtain from time to time a renewed lease of the same hereditaments on the accustomed and reasonable terms, and for that purpose it shall be lawful for any such trustees from time to time to make or concur in making such surrender of the lease for the time being subsisting, and to do all such other acts as shall be requisite in that behalf; but this section is not to apply to any case where by the terms of the settle- ment or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew the lease or to contribute to the expense of renewing the same, 9. In case any money shall be required for the purpose of paying for and'fo/reriewai equality of exchange as aforesaid, or for renewal of any lease as afore- or leases ma; be said, it shall be lawful for the persons effecting such exchange or renewal to pay the same out of any money which may then be in their hands in trust for. the persons beneficially interested in the lands to be taken in exchange, or comprised in the renewed lease, whether arising by any of the ways and means hereinbefore men- tioned or otherwise, and notwithstanding the provisions for the application of money arising from sales or exchanges herein-before contained ; and if they shall not have in their hands as aforesaid sufficient money for the purposes aforesaid, it shall be lawful for such persons to raise the money required by mortgage of the here- ditaments to be received in exchange or contained in the renewed lease (as the case may be), or of any other hereditaments for the time being subject to the subsisting uses or trusts to which the hereditaments taken in exchange or comprised in the renewed lease (as the case may be) shall be subject, and for the purpose of effecting such mortgage such persons shall have the same powers of conveying or otherwise assuring as are herein contained with reference to a conveyance or sale ; and no mortgagee advancing money upon such mortgage purporting to be made under this power shall be bound to see that such money is wanted, or that no more is raised than is wanted for the purposes aforesaid. b^madewUhout l^-. ^o such Sale or exchange as aforesaid, and no purchase of consent of tenant hereditaments out of money received on any such sale or exchange for life, &c. as aforesaid, shall be made without the consent of the person appointed to consent by the will, deed, or other instrument, or if no such person Money for equa- raised by mort- gage, &c. 23 ^ 24 Vict. Cap. 145. 317 be appointed, then of the person entitled in possession to the receipt of the rents and profits of such hereditaments, if there be such a person under no disability ; but this clause shall not be taken to require the consent of any person where it appears from the will, deed, or other instrument to have been intended that such sale, exchange, or purchase should be made by the person or persons making the same without the consent of any other person. PART II. Powers of Mortgagees. H. Where any principal money is secured or charged by deed on Powers incident any hereditaments of any tenure, or on any interest therein, the person '" mortgagees. to whom such money shall for the time being be payable, his executors, administrators, and assigns, shall, at any time after the expiration of one year from the time when such principal money shall have become payable, according to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission to pay any premium on any insurance which by the terms of the deed ought to be paid by the person entitled to the pro- perty subject to the charge, have the following powers to the same extent (but no more) as if they had been in terms conferred by the per- son creating the charge ; namely, 1st. A power to sell or concur with any other person in selling the whole or any part of the property by public .auction or private contract, subject to any reasoaable conditions he may think fit to make, and to rescind or vary contracts for sale, or buy in and re-sell the property, from time to time, in like manner : 2nd. A power to insure and keep insured from loss or damage by fire the whole or any part of the property (whether affixed to the freehold or not) which is in its nature insurable, and to add the premiums paid for any such insurance to the principal money secured at the same rate of interest : 3rd. A power to appoint or obtain the appointment of a receiver of rents and profits of the whole or any part of the property in manner herein-after mentioned. 12. Receipts for purchase money given by the person or persons Receipts for pur- exercising the power of sale hereby conferred shall be sufficient dis- chase money charges to the purchasers, who shall not be bound to see to the appli- charges. cation of such purchase money. 13. No such sale as aforesaid shall be made until after six months Notice to be notice in writing given to the person or one of the persons entitled to buVpuchase/^'* the property subject to the charge, or ciffixed on some conspicuous part relieved from of such property; but when a sale has been effected in professed '"'J"'"'? "« '"<>''■- exercise of the powers hereby conferred, the title of the purchaser shall sale. not be liable to be impeached on the ground that no case had arisen to authorize the exercise of such power, or that no such notice as afore- said had been given ; but any person damnified by any such unautho- rized exercise of such power shall have his remedy in damages against the person selling. 14. The money arising by any sale effected as aforesaid shall be Application of applied by the person receiving the same as folloWs ; first, in payment '""'' ""' """^y" of all the expenses incident to the sale or incurred in any attempted z 2 318 Conveyance to the purchaser. Owner of charge may call for title deeds and con- veyance of legal estate. Appointment of receiver. Heceiver deemed to be the agent of th mortgagor. Powers of receiver. Receiver may be removed. Receiver to recjeive a commission fiot exceeding ^ve per cent. Appendia!, sale ; secondly, in discharge of all interests and costs then due in re* spect of the charge in consequence whereof the sale was made ; and thirdly, in discharge of all the principal monies then due in respect of such charge; and the residue of such money shall be paid to the person entitled to the property subject to the charge, his heirs, executors, administrators, or assigns, as the case may be. 15. The person exercismg the power of sale hereby conferred shall have power by deed to convey or assign to and vest in the purchaser the property sold, for all the estate and interest therein which the person who created the charge had power to dispose of, except that in the case of copyhold hereditaments the beoeiicial interest only shall be conveyed to and vested in the purchaser by such deed 16. At any time after the power of sale hereby conferred shall have become exerciseable, the person entitled to exercise the same shall, be entitled to demand and recover, from the person entitled to the pro- perty subject to the charge, all the deeds and documents in his pos- session or power relating to the same property, or to the title thereto, which he would have been entitled to demand and recover if the same property had been conveyed, appointed, surrendered, or assigned to and were then vested in him for all the estate and interest which the person creating the charge had power to dispose of, and where the legal estate shall be outstanding in a trustee the person entitled to a charge created by a person equitably entitled, or any purchaser from such person, shall be entitled to call for a conveyance of the legal estate to the same extent as the person creating the charge could have called for such a conveyance if the charge had not been made. 17. Any person entitled to appoint or obtain the appointment of a receiver as aforesaid may from time to time, if any person or persons has or have been named in the deed of charge for that purpose, appoint such person or any one of such persons to be receiver, or if no person be so named, then may, by writing, delivered to the person or any one of the persons entitled to the property subject to the charge, or affixed on some conspicuous part of the property, require such last- mentioned person or persons to appoint a fit and proper person as receiver, and if no such appointment be made within ten days after such requisition, then may in writing appoint any person he may think fit. IS. Every receiver appointed as aforesaid shall be deemed to be the agent of the person entitled to the property subject to the charge, who shall be solely responsible for his acts or defaults, unless otherwise pro- vided for in the charge. 19. Every receiver appointed as aforesaid shall have power to demand and recover and give efl^ectual receipts for all the rents, issues, and pro- fits of the property of which he is appointed receiver by action, suit, distress, or otherwise, in the name either of the person entitled to the property subject to the charge, or of the person entitled to the money secured by the charge, to the full extent of the estate or interest which the person who created the charge had power to dispose of. 20. Every receiver appointed as aforesaid may be removed by the like authority or on the like requisition as before provided with respect to the original appointment of a receiver, and new receivers may be ap- pointed from time to time. 21. Every receiver appointed as aforesaid shall be entitled to retain out of any money received by him, in lieu of all costs, charges, and ex- penses whatsoever, such a commission, not exceeding five per centum on the gross amount of all money received, as shall be specified in his appointment, and if no amount shall be so specified, then five per centum on such gross amount. 23 ^ 24 Vict. Cap. 145. 319 22. Every receiver appointed as aforesaid shall, if so directed in KcceWerto ■writing by the person entitled to the money secured by the charge, in- j,^^^'i*^^f sure and keep insured from loss or damage by fire, out of the money received by him, the whole or any part of the property included in the charge (whether affixed to the freehold or not) which is in its nature insurable. i r r f 23. Every receiver appointed as aforesaid shall pay and apply all the ^^P;;""™";;;^ money received by him in the first place in discharge of all taxes, rates, by him. and assessments whatsoever, and in payment of his commission as afore- said, and of the premiums on the insurances, if any, and in the next place in payment of all the interest accruing due in respect of any prin- cipal money then charged on the property over which he is receiver, or on any part thereof, and, subject as aforesaid, shall pay all the residue of such money to the person for the time being entitled to the property subject to the charge, his executors, administrators, or assigns. 24. The powers and provisions contained in this part of this Act ™^»/^„^'J^» relate only to mortgages or charges made to secure money advanced ,,y ^^^ „f or to be advanced by way of loan, or to secure an existing or future mortgage only. debt. PART III. Provisions as to Investment of Trust Funds. Appointment and Powers of Trustees and Executors, 8[C. 25. Trustees having trust money in their hands which it is their duty o^.whaUecun- to invest at interest shall be at liberty, at their discretion, to invest the ^^^ ^^ juvested. same in any of the parliamentary stocks or public funds, or m govern- ment securities, and such trustees shall also be at liberty, at tlieir dis- cretion, to call in any trust funds invested in any other securities than as aforesaid, and to invest the same on any such securities as aforesaid, and also from time to time, at their discretion, to vary any such invest- ments as aforesaid for others of the same nature: Provided always that no such original investment as aforesaid (except in the Three per Cent. Consolidated Bank Annuities), and no such change of mve t- ment as aforesaid, shall be made where there is a P^'^^°'' "/>'!" "°^- ability, entitled in possession to receive the '■?^°"'.^. °', j^j^Vfe or for for his life, or for a term of years determinable ^"^ his life, or for any greater estate, without the ^°°^^"^'" "■•:''"S of «u^h person ^^__^^^^^ 26 In all cases where any property is held by trustees m trust lor .^^^^^ Zb. in »'' ^^°.^^ J", ,..|^ or contingently on his attaining the age of oFproperty of an infant, either absolutely or concingeuuy nreviouslv to his infauts, &c., for twenty-one years, or on the occurrence of any event P«y^°"^'y "^j their main-' attaining that age, it shall be lawful for such ^^^f^^' ^Vr Jtherw se to ''"*""• cretion, to pay to the guardians (if any) ''f/"'^^ '"f^f ' °1° „f^^t th" appiv for or towards the maintenance or education of =uchmfanth 320 Appendix. Provisions for appointmeDt of new trustees on death, &c. Appointment of new trustees in cases herein named. Trustees' re- ceipts to be discbarges. -Executors may compound, &c. any part of such accumulations as if the same were part of the income arising in the then current year. 27. Whenever any trustee, either original or substituted, and whether appointed by the court of Chancery or otherwise, shall die, or desire to be discharged from or refuse or become unfit or incapable to act in the trusts or powers in him reposed, before the same shall have been fully discharged and performed, it shall be lawful for the person or persons nominated forlhat purpose by the deed, will, or other instrument creating thetrust(ifany),or iftherebenosuch person, or no such personable and willing to act, then for the surviving or continuing trustees or trustee for the time being, or the acting executors or executor or administrators or administrator of the last surviving and continuing trustee, or for the last retiring trustee, by writing, to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying, or desiring to be discharged, or refusing or becoming unfit or incapable to act as aforesaid ; and so often as any new trustee or trustees shall be so appointed as aforesaid all the trust property (if any) which for the time being shall be vested in the surviving or continuing trustees or trustee, or in the heirs, executors, or administrators of any trustee, shall with all convenient speed be conveyed, assigned, and transferred so that the same may be legally and effectually vested in such new trus- tee or trustees, either solely, or jointly with the surviving or continuing trustees or trustee, as the case may require ; and every new trustee or trustees to be appointed as aforesaid, as well before as after such con- veyance or assignment as aforesaid, and also every trustee appointed by the court of Chancery either before or after the passing of this Act, shall have the same powers, authorities, and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the deed, will, or other instrument creating the trust. 28. The power of appointing new trustees hereinbefore contained may be exercised in cases where a trustee nominated in a will has died in the lifetime of a testator. 29. The receipts in writing of any trustees or trustee for any money payable to them or him by reason or in the exercise of any trusts or powers reposed or vested in them or him shall be sufficient discharges for the money therein expressed to be received, and shall eflFectually exonerate the persons paying such money from seeing to the application thereof, or from being answerable for any loss or misapplication thereof. 30. It shall be lawful for any executors to pay any debts or claims upon any evidence that they may think sufficient, and to accept any composition, or any security, real or personal, for any debts due to the deceased, and to allow any time for payment of any such debts as they shall think fit, and also to compromise, compound, or submit to arbi- tration ail debts, accounts, claims, and things whatsoever relating to the estate of the deceased, and for any of the purposes aforesaid to enter into, give, and execute such agreements, instruments of composition, releases, and other things as they shall think expedient, without being responsible for any loss to be occasioned thereby. 30 ^ 31 Vict. Cap. 133. 321 PART IV. General Provisions. 31. For the purposes of this Act, a person shall be deemed to be Tenants for life, entitled to the possession or to the receipt of the rents and income of cute power^ land or personal property, although his estate may be charged or en- notwithstanding cumbered, either by himself or by any former owner, or otherwise how- '•"="n't™"«s. soever to any extent ; but the estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to the possession or to the receipts of the rents and income as aforesaid, unless they shall concur therein. 32. None of the powers or incidents hereby conferred or annexed to Powers, Sec, particular offices, estates, or circumstances shall take effect or be exer- ^^^ be^"™ ciseable if it is declared in the deed, will, or other instrument creating negatived by such offices, estates, or circumstances that they shall not take effect ; |^''j^'',. and where there is no such declaration, then if any variations or limit- ations of any of the powers or incidents hereby conferred or annexed are contained in such deed, will, or other instrument, such powers or incidents shall be exercisable or shall take effect only subject to such variations or limitations. 33. Nothing in this Act contained shall be deemed to empower any No persons trustees or- other persons to deal with or affect the estates or rights of "'''^'^ t'"™ any persons soever, except to the extent to which they might have dealt under the settle- with or affected the estates or rights of such persons if the deed, will, ment, &c., to be or other instrument under which such trustees or other persons are em- *°^'"'*' powered to act had contained express powers for such trustees or other persons so to deal with or affect such estates or rights. 34. The provisions contained in this Act shall, except as hereinbefore Commencement otherwise provided, extend only to persons entitled or acting under a " ° ' deed, will, codicil, or other instrument executed after the passing of this Act, or under a will or codicil confirmed or revived by a codicil executed Jlfipr tiDSt! Q&t^6 35. This Act shall not extend to Scotland. ^^*'"' "^ ^'='- 30 & 31 VICT. CAP. 132. An Act to remove Doubts as to the Power of Trustees, Executors, and Administrators to invest Trust Funds in certain Securities, and to declare and amend the Law relating to such Investments. [20th August, 1867.] Whereas by an Act passed in the session holden in the twenty-second 22 & as Tlct. and twenty-third years of Her present Majesty, chapter thirty-five, c, 35. " to further amend the law of property, and to relieve trustees," it is enacted, that " when a trustee, executor, or administrator shall not by 323 Appendix. some instruments creating his trust be expressly forbidden to invest any trust fund on real securities in any part of the United Kingdom, or on the Stock of the Bank of England or Ireland, or on East India stock, it shall be lawful for such trustee, executor, or administrator to invest such trust fund on such securities or stock, and he shall not be liable on that account as for a breach of trust, provided that such investment ghall in other respects be reasonable and proper:" And whereas doubts have arisen as to the legal effect and significa- tion of the words " East India Stock " in the said Act mentioned : Be it therefore enacted and declared by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : Application o* 1. The words " East India ^tocV in the said Act passed in the 8to™k"fn'redted session holden in the twenty-second and twenty-third years of Her Act. Majesty, chapter thirty-five, shall include and express as well the East India Stock which existed previously to the thirteenth day of August one thousand eight hundred and fil'ty-nine, when the said Act received the assent of Her Majesty, as East India Stock charged on the revenues of India, and created under and by virtue of any Act or Acts of parlia- ment which received Her Majesty's assent on or after the thirteenth day of August one thousand eight hundred and fifty-nine ; and it shall be lawful for every trustee, executor, or administrator to invest any trust fund in his possession or under his control in the stock created by the last- mentioned Act or Acts to the same extent, and for the same purposes and objects, as he can now invest such trust fund in the East India Stock which existed previously to the thirteenth day of August one thousand eight hundred and fifty-nine. Tnistcesmay 2. It shall be lawful for every trustee, executor, or administrator to securities inlerest invest any trust fund in his possession or under his control in any wiiereon is securities the interest of which is or shall be guaranteed by parliament Mriiament! "'^ *° ''^^ ^^™^ extent and in the same manner as he may invest such trust fund in such securities as aforesaid. PAET IV. MISCELLANEOUS ACTS. 18 & 19 VICT. Cap. 43. An Act to enable Infants, with the Approiation of the Court of Chan- cery, to make binding Settlements of their Real and Personal Estate on Marriage. [2nd July. 1855.] Whereas great inconveniences and disadvantages arise in consequence of persons who marry during minority being incapable of making binding settlements of their property: For remedy Vfhereof be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : 1 . From and after the passing of this Act it shall be lawful for every Infanti may, infant upon or in contemplation of his or her marriage, with the sane- uo* of 'the'' court tion of the court of Chancery, to make a valid and binding settlement of Chancery, or contract for a settlement of all or any part of his or her proDertv, ">'>'£<' Taiid lettie- . L'-Li. 1.1. j^ -,■' ments or contracts or property over which he or she has any power oi appomtment, for aettlementi or whether real or personal, and whether in possession, reversion, re- ttie" real and mainder. or expectancy ; and every conveyance, appointment, and Spon marriage. assignment of such real or personal estate, or contract to make a con- veyance, appointment, or assignment thereof, executed by such infant, with the approbation of the said court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty-one years : Pro- vided always, that this enactment shall not extend to powers of which it is expressly declared that they shall not be exercised by an infant. 2. Provided always, that in case any appointment under a power of in case infant die appointment, or any disentailing assurance, shall have been executed ""<'«.'' »se, by any infant tenant in tail under the provisions of this Act, and such tobe'Towt" ' ° infant shall afterwards die under age, such appointment or disentailing assurance shall thereupon become absolutely void. 3. The sanction of the court of Chancery to any such settlement or The sanction of contract for a settlement may be given, upon petition presented by the chancery °to ba infant or his or her guardian, in a summary way, without the institu- given upon tion of a suit ; and if there be no guardian, the court mny require a petition, guardian to be appointed or not, as it shall think fit ; and the court also may, if it shall think fit, require that any persons interested or appearing to be interested in the property should be served with notice of such petition. 4. Provided always, that nothing in this Act contained shall apply JJaJeg" Jn^'er 20 to any male infant under the age of twenty years, or to any female or females under infant under the age of seventeen years. 17 y™'s of age. 334 Appendix. 23 & 24 VICT. Cap. 38. ^n Act to further amend the Law of Property. [23rd July, I860.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present parliament assembled, and by the authority of the same, as follows : Writs of eiecu- 1. Whereas it is desirabls to place freehold, copyhold, and cus- tion of Judgmonta tomary estates on the same footing with leasehold estates, in respect of to be registered, judgments, statutes, and recognizances as against purchasers and mort- gagees, and also to enable purchasers and mortgagees of estates, whether freehold, copyhold, or customary or leasehold, to ascertain when execution has issued on any judgment, statute or recognizance, and to protect them against delay in the execution of the writ : be it therefore enacted, that no judgment, statute, or recognizance to be en- tered up after the passing of this Act shall affect any land (of what- ever tenure) as to a bondfide purchaser for valuable consideration, or a mortgagee (whether such purchaser or mortgagee have notice or not of any such judgment, statute, or recognizance,) unless a writ or other due process of execution of such judgment, statute, or recognizance shall have been issued and registered as hereinafter is mentioned before the . execution of the conveyance or mortgage to him, and the payment of the purchase or mortgage money by him : provided always, that no judgment, statute, or recognizance, to be entered up after the passing of this Act, nor any writ of execution or other process thereon, shall affect any land of whatever tenure as to a hond fide purchaser or mort- gagee, although execution or other process shall have issued thereon, and have been duly registered, unless such execution or other process shall be executed and put in force within three calendar months from the time when it was registered. „ , . 2. The registry hereinbefore required of any writ of execution, or ing. ' other due process on any judgment, statute, or recognizance in order to bind a purchaser or mortgagee, shall be made by a memorandum or minute referring to the judgment, statute, or recognizance already registered, so as to conduct the registry of the writ of execution or other process therewith ; such memorandum or minute to be left with the senior master of the court of Common Pleas at Westminster, who shall forthwith enter the particulars in a book in alphabetical order by the name of the person in whose behalf the judgment, statute, or re- cognizance upon which the writ of execution or other process issued was registered, and also the year and the day of the month when every such memorandum or minute is left with him, and such officer shall be entitled for any such registry to the sum of five shillings ; and all per- sons shall be at Kberty to search the same book, in addition to all the other books in the same office, on payment of the sum of one shilling only ; and all the provisions of this Act in regard to writs of execu- tion or other process and the registry thereof, or otherwise relating thereto, shall extend mutatis mutandis, to writs of execution or other due process issuing on judgments of the several courts of common pleas of the county palatine of Lancaster, and of pleas of the county palatine of Durham : but none of these provisions are to extend to Ireland. 23 ^ 24 Vict. Cap. 38. 335 3. And whereas by an Act passed in the fourth and fifth years of ProTision for their late Majesties King William and Queen Mary, intituled " An Act protection of for the better Discovery of Judgments in the Courts of King's Bench, toTa^insHn-' Common Pleas, and Exchequer, in Westminster," it was enacted, that registered Judg- no judgment not docketed and entered in books in the manner thereby '°«"*=- provided should affect any lands or tenements as to purchasers or mortgagees, or have any preference against heirs, executors, or admi- nistrators in their administration of their aocestors, testators, or intes- tates estates : and whereas by several later Acts judgments are required to, be registered with more particulars than were required by the said recited Act; and it is thereby enacted that judgments not so registered shall not affect any lands, tenements, or hereditaments as to purchasers, mortgagees, or creditors unless and until the same shall be registered in manner thereby required ; and in obedience to a direction in one of the same Acts contained the dockets existing under the said first- recited Act have been finally closed : and whereas the said several later Acts do not expressly enact that judgments not docketed as thereby required shall not have any preference against heirs, executors, or ad- ministrators in their administration of their ancestors, testators, or intestates estates, in consequence whereof such heirs, executors or administrators have been held to have lost the protection which they enjoyed under the said first-recited Act, and it is expedient that the same should be restored : be it therefore declared and enacted, that no judgment which has not already been or which shall not hereafter be entered or docketed under the several Acts now in force, and which passed subsequently to the said Act of the fourth and fifth years of King William and Queen Mary, so as to bind lands, tenements, or here- ditaments as against purchasers, mortgagees, or creditors, shall have any preference against heirs, executors, or administrators in their administration of their ancestors, testators, or intestates estates. 4. No Judgments which since the passing of an Act of the first and judgments as second years of Her Majesty Queen Victoria, intituled " An Act for against heirs and abolishing Arrest on Mesne Process in Civil Actions except in certain re-reglstered. Cases, for extending the Remedies of Creditors against the property of Debtors, and for amending the Laws /or the Relief of Insolvent Debtors in England," (being one of the Acts hereinbefore referred to), have been registered under the provisions therein contained, or con- tained in the later Act of the second and third years of Queen Victoria, chapter eleven, as explained and amended by the Act of the session of the eighteenth and nineteenth years of Queen Victoria, chapter fifteen (being two other of the Acts hereinbefore referred to), or which shall hereafter be so registered shall have any preference against heirs, executors, or administrators in their administration of their executors, testators or intestates estates, unless at the death of the testator or intestate five years shall not have elapsed from the date of the entry thereof on the docket or from the only or last re-registry thereof, as the case may be, which re-registry from time to time is hereby authorized to be made in manner directed by the said Act of the second and third of Queen Victoria, as explained and amended by the Act of the eigh- teenth and" nineteenth of Queen Victoria; but it shall be deemed suf- ficient to secure such preference as aforesaid, if such a memorandum as was required in the first instance is again left with the senior master of the Common Pleas within five years before the death of the testator or intestate, although more than five years shall have expired by effluxion of time since the last previous registration, before such last- 326 Appendix. Extent of the word "judg- ment." BeGtriction .of effect of waiver. Provision for cases of future and contingent mentioned memorandum or minute was left; and so toHes guolies upon every re-registry. 5. In the construction of the previous provisions the term judgment shall be taken to include registered decrees, orders of courts of equity and bankruptcy, and other orders having the operation of a judgment. 6. Where any actual vraiver of the benefit of any covenant or con- dition in any lease on the part of any lessor, or his heirs, executors, administrators, or assigns, shall be proved to have taken place after the passing of this Act, in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance or any breach of covenant or condition other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear. 7. Where by any instrument any hereditaments have been or shall be limited to uses, all uses thereunder, whether expressed or implied by law, and whether immediate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise by force of and by relation to the estate and seisin originally vested in the person seised to the uses, and the con- tinued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of or to give effect to future or contingent or executory uses, nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere. 8. The section twenty-four in the Act of the session of the twenty- second and twenty-third of Queen Victoria, chapter thirty-five, shall be read and construed as if the words " or mortgagee " had followed the word " purchaser " in every place where the latter word is introduced in the said section. Form of applying g. Where any trustee, executor, or administrator shall apply for the judge,™c. under opinion, advice, or direction of a judge of the court of Chancery under ■ection so, of 28 the thirtieth section of the Act of the twenty-second and twenty-third of her present Majesty, chapter thirty-five, the petition or statement shall be signed by counsel, and the judge by whom it is to be answered may require the petitioner or applicant to attend him by counsel either in chambers or in court where he deems it necessary to have the assis- tance of counsel 10. It shall be lawful for the Lord Chancellor, lord keeper or lords «. ^^ ..„„ ...>, commissioners for the custody of the great seal of England, with the lreEnd'to"mak6 advice and assistance of the Master of the Rolls, the Lords Justices of general orders as the Court of Appeal in Chancery, and the Vice-Chancellors of the said cash'unSr"!]" court. Or any three of them, and for the Lord Chancellor of Ireland, control of the with the advice and assistance of the Lords Justices of Appeal and the ' court. Master of the KoUs in Ireland, to make such general orders from time to time as to the investment of cash under the control of the court, either in the Three per Cent. Consolidated or Reduced or New Bank Annu- ities, or in such other stocks, funds, or securities as he or they shall with such advice or assistance, see fit ; and it shall be lawful for the Lord Chancellor, lord keeper or lords commissioners in England, and for the Lord Chancellor in Ireland, to make such orders as he or they shall deem proper for the conversion of any Three per Cent. Bank Annuities now standing or which may hereafter stand in the name of the ac- countant general of the said court of Chancery, in trust in any cause or matter, into any such other stocks, funds, or securities upon which, ^y sny such general order as aforesaid, cash under the control of the coxirt may be invested ; all orders for such conversion of Bank Aonui- Sect. 24, of as & S3 Vict. c. 35, extended to mortgagees. fcasVict. C.35. Power to Lord Chancellors, See. of England and 23 ^ 24 Vict. Cap. 38. 337 ties into other funds or securities to be made upon petition to be pre- sented by any of the parties interested in a summary way, and such parties shall be served with notice thereof as the court shall direct. 11. When any such general order as aforesaid shall have been made Trustees, &c. to it shall be lawful for trustees, executors or administrators having Junds'inlhe power to invest their trust funds upon government securities, or upon stocks, &c. in parliamentary stoclis, funds, or securities, or any of them, to invest ?[•'"'='' '=?'*'; ""Jf' •;„ I, . ..,■', \ .1. r ■ ^ iu .^ 1 i- J the control of the sucn trust funds, or any part thereof, in any ol the stocks, funds, oreourtmaybe securities in or upon which by such general order cash under the con- invested. trol of the court may from time to time be invested. 12. Clause thirty-two of the said Act of the twenty-second and Clause sa of as & twenty-third of Queen Victoria, chapter thirty-five, shall operate retro- actTetrosiiec*-' '° spectively. tively. 13. Whereas by the Act of parliament of the third and fourth of Extension of William the fourth, chapter twenty-seven, section forty, it was enacted r^ff'/'^i^ that after the thirty-first day of December one thousand eight hundred to cases of claims and thirty-three no action or suit or other proceeding should be to estates of brought to recover any sum of money secured by any mortgage, judg- '"'^states. ment or lien, or otherwise, charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same should have accrued to some person capable of giving a discharge for or release of the same unless such acknowledgment in writing or payment of principal or interest as therein mentioned should have been given or made, and then within twenty years next after such payment or acknowledgment, or the last of such payments or acknowledgments : and whereas it is expedient that the said enactment should be extended to the case of claims to the estates of persons dying intestate : be it therefore enacted, that after the thirty-first day of December one thousand eight hundred and sixty no suit or other proceeding shall be brought to recover the personal estate, or any share of the personal estate, of any person dying intestate, possessed by the legal personal representative of such intestate, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a dis- charge for or release of the same, unless in the meantime some part of such estate or share, or some interest in respect thereof, shall have been accounted for or paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person accountable for the same, or his agent, to the person entitled thereto, or his agent ; and in such case no such action or suit shall be brought but within twenty years after such accounting, payment, or acknowledgment, or the last of such accountings, payments, or acknowledgments, if more than one was made or given. 14. The order to take an account of the debts and liabilities affect- Order to take ing the personal estate of a deceased person, pursuant to the nine- Sf°™?'a°J,^|°Jf' teenth section of the Act of the thirteenth and fourteenth years of person under sect. Victoria, chapter thirty-five, may be made immediately or at any time iB.^of^is^i; u^^ after probate or letters of administration shall have been granted ; and ^^ ^^j^ -mme- such order maybe made either by the court of Chancery upon motion diately after or petition of course, or by a judge of the said court, sitting at cham- probate granteo. hers, upon a summons in the form used for originating proceedings at chambers; and after any such order shall have been made, the said court or judge may, on the application of the executors or administra- tors, by motion or summons, restrain or suspend, until the account directed by such order shall have beep talien, any proceedings at law against such executors or administrators by any person having, or 328 Appendix. claiming to have, any demand upon the estate of the deceased, by reason of any debt or liability due from the estate of the deceased, upon such notice and terms and conditions (if any) as to the said court or judge shall seem just ; and the judge, in taking an account of debts and liabilities pursuant to any such order shall, on the application of the executors or administrators, be at liberty to direct that the par- ticulars only of any claim or claims which may be brought in pursuance to any such order shall be certified by his chief clerk, without any adjudication thereon ; and any notices for creditors to come in which may be published in pursuance of any such order shall have the same force and eflFect as if such notices had been given by the executors or administrators in pursuance of the twenty-ninthsectionof the Act of the twenty-second and twenty-third years of Victoria, chapter thirty-five. Act not to ex- 15. This Act is not to extend to Scotland, nor are any of the clauses, tend to Scotland, except clause six and the subsequent clauses, to extend to Ireland. 23 & 24 VICT. Cap. 149. An Act to make better Provision for the Relief of Prisoners in Con- tempt of the High Court of Chancery, and Pauper Defendants ; and for the more efficient Despatch of Business in the said Court. [28th August, I860.] Whereas by an Act passed in the session of parliament holden in the eleventh year of the reigu of his late Majesty King George the Fourth and the first year of the reign of his late Majesty King William the Fourth, chapter thirty-six, intituled " An Act for altering and amend- 11 Geo. i and ing the Law regarding Commitments by Courts of Equity for Contempt lWilL4, o. 36. and taking Bills pro co?ifes«o," it was enacted, amongst other things, that the rules and regulations thereinafter provided and contained should be adopted by the High Court of Chancery, and should from thenceforth become orders and rules of the said court of Chancery, and be observed and enforced in and by the said court ; and it was by the sixth of such rules directed that if a defendant, upon being brought before the court upon an habeas corpus, should make oath (which should be administered to him by the registrar, and he should be examined in open court,) that he was unable, by reason of poverty, to employ a soUcitor to put in his answer, the court should thereupon refer it to a master in rotation to inquire into the truth of that allegation, and to report thereon to the court forthwith, and thereupon the court might make such order as upon other reports of the like nature under the provisions thereinafter contained ; and by the seventh of such rules it was directed that on the thirtieth day of January, the thirtieth day of April, the thirtieth day of July, and the thirtieth day of October in every year, or if any of those days should happen on a Sunday then on the following day, one of the masters of the court of Chancery, to be named by the court, should visit the Fleet Prison and examine thepri- soners confined there for contempt, and should report his opinion on their respective cases to the court, and thereupon it should be lawful for the court to make such order as therein mentioned : And whereas by an Act passed in the session of parliament holden in the fifth and sixth years of the reign of her Majesty, chapter twenty-two, intituled 23 ^ 24 Vict. Cap. 149. 329 " An Act for consolidating the Queen's Bench, Fleet, and Marshalsea 5 & o Vict. c. aa. Prisons, and for regulating the Queen's Prison," it was enacted amongst other things, that the prison to be called the Queen's Prison should be the only prison for all persons who before the passing of that Act might lawfully have been imprisoned in the Fleet Prison and other prisons therein nam«d : And whereas by an Act passed in the session of parliament holden in the fifteenth and sixteenth years of the reign of her Majesty, chapter eighty, intituled "An Act to abolish the Office 13 & 18 Vict, of Master in Ordinary of the High Court of Chancery, and to make "•**'" Provision for the more speedy and efficient Despatch of Business in the said Court," the office of Master in Ordinary of the High Court of Chancery was abolished, but reserving and subject to the execution by the then Masters in Ordinary of the said court of the duties thereinafter provided for, and until they were released under the same Act they were for the performance of such duties to continue to have all the powers conferred upon them by any Act of parliament or otherwise vested in them ; and it was enacted that, on the first day of Michaelmas term one thousand eight hundred and fifty-two, two of the said masters should be released, and that as often as in the judgment of the Lord Chancellor any other master or masters could be spared it should be lawful for the Lord Chancellor to release any such master or masters, and that when the Lord Chancellor should be of opinion that the ser- vices of none of the masters were any longer necessary for the due execution of the business of the said court it should be lawful for him to release every remaining master : And whereas since the passing of the last-mentioned Act one of the Masters in Ordinary of the said court has died, and all the others have been released except three, two of whom are quite incapable from ill health of performing the duties of their office, and the other of whom is of advanced age and very infirm, and has held the office of master in the court of Exchequer and the court of Chancery for the period of thirty-nine years and upwards : And whereas it has been considered desirable for the better discharge of the business of the said court that the causes and matters now re- maining in the offices of the said masters should be transferred to the judges chambers, and accordingly the Lord Chancellor, with the advice and assistance of all the judges of the court, has, by order bearing date the twenty-third day of August one thousand eight hundred and sixty, ordered and directed that all causes, matters, and things now depend- ing before the masters shall be proceeded with and prosecuted before the respective judges of the court : And whereas the only duty now remaining to be performed by the masters is that of visiting the prison as required by the first recited Act, and it is expedient that they should be relieved from such duty, and that some other provision should be made for the performance thereof: And whereas it is also expedient that some further provision should be made for the relief of prisoners in custody for contempt of the said court : And whereas since the date of the first hereinbefore recited Act various alterations have been made in • the practice and procedtire of the said court, by reason whereof several of the rules and regulations contained in the same Act may require to be varied, and it is expedient that the Lord Chancellor should have power to make such general orders as may from time to time be necessary in that behalf: be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : — 330 Masters in ordi- nary discbarged from certain duties. The Queen's prison to be visited quarterly. Pri-soners and Dt^er persons may be Exa- mined on oath. Court may direct reference as to poverly of pri- soners. Gaolers to make reports to Lord Chancellor of all Chancery pri- soners. 1. The Masters in Ordinary of the High Court of Chancery shall be and they are hereby discbarged from the several duties imposed on them by the said first recited Act. 2. In the last week in January, in the last week in April, in the last week in July, and in the last week in October in every year, the present solicitor to the Suitors Fund, or in case of his illness or unavoidable absence, some ofiScer of the court of Chancery to be appointed by the Lord .Chancellor from time to time during such illness or absence, and after the death or retirement of the present solicitor to the Suitors Fund, the solicitor to the Suitors Fund for the time being, or some other officer of the court of Chancery to be appointed by the Lord Chan- cellor from time to time, shall visit the Queen's Prison, and examine the prisoners confined there for contempt, and shall report his opinion on their respective cases to the Lord Chancellor, and thereupon it shall be lawful for the Lord Chancellor, if he shall think fit, to assign a soli- citor to any such prisoner, not only for defending him informd pauperis, but generally for taking such steps on his behalf as the nature of the case may require, and to make all or any such orders as the Lord Chan- cellor was empowered to make after the like report of a master under the seventh rule of the said first hereinbefore recited Act, and all the pro- visions of the same rule shall apply to the reports hereby directed, and the orders to be made thereunder. 3. It shall be lawful for the solicitor to the Suitors Fond or other officer visiting the prison as aforesaid to examine the prisoners and all other persons whom he may think it proper to examine upon oath, and to administer an oath or oaths to any such prisoner and other persons accordingly, and to cause any officers, clerks, and ministers of any court of law or equity to bring and produce upon oath before him any records, orders, books, papers, or other writings belonging to the said courts, or to any of the officers within the same, as such officers. 4'. In all cases where, in pursuance of the said sixth rule contained in the first hereinbefore recited Act, a defendant shall be brought to the bar of the court, and shall make oath that he is unable by reason of poverty to employ a solicitor to put in his answer, the court, if not satisfied of the truth of that allegation, may direct an inquiry as to the truth thereof, and may appoint a solicitor to conduct such inquiry on the behalf of such defendant, and if it is ascertained by means of such inquiry, or if the court is satisfied without such inquiry, that such defendant is unable by reason of poverty to employ a solicitor to put in his answer, the court may thereupon make such order as is authorized by the said sixth rule after a report by a master. 6. When any person shall be committed to any prison other than the Queen's prison under any writ or order of the court of Chancery, the gaoler or keeper of the prison in which such person shall be confined shall, within fourteen days after such person shall have been in the custody of such gaoler or keeper, make a report to the Lord Chancellor, containing the name and description of such prisoner, with the cause and date of his commitment, and a copy of the writ or order under which he was committed ; and if such prisoner shall make oath before one of the visiting justices of such gaol, or a commissioner for taking oaths in the court of Chancery, that he is unable by reason of poverty to employ a solicitor, the report shall contain a statement to that effect, and it shall thereupon be lawful for the Lord Chancellor to direct the solicitor to the Suitors Fund to ascertain the truth of such statement, and if true to take such steps on behalf of any such prisoner as the 27 ^ 28 Vict. Cap. 112. 331 nature of the case may require ; and the Lord Chancellor may there- upon, if he shall see fit. make such order or orders as he is empowered to make under the second section of this Act. 6. The solicitor to the Suitors Fund shall make the necessary and Expenses in- proper payments out of pocket which may be requisite in the proceed- """edforpri- ings taken on behalf of the prisoners and defendants under the order of defcndanis to be the said court, and shall be allowed the same as part of his disburse- P"'* ■>"' "f ments in respect of the Suitors Fund : Provided that if any such pri- =""<"»'""'*• soner or defendant shall be or become entitled to any funds in the cause, such funds shall be applied in the repayment to the Suitors Fund of the sums expended on his behalf as aforesaid : Provided also, that in case any prisoner or defendant shall become entitled to any costs in any such suit or proceeding, such costs shall be received by the solicitor to the Suitors Fund, and paid by him into the Suitors Fund. 27 & 28 VICT. Cap. 112. An Act to amend the Law relating to future Judgments, Statutes, and Recognizances. [29th July, 1864.] Whereas it is desirable to assimilate the law affecting freehold, copy- hold, and leasehold estates to that affecting purely personal estates in respect of future judgments, statutes, and recognizances : therefore be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : 1. No judgment, statute, or recognizance to be entered up after the Future judg- passing of this Act shall affect any land (of whatever tenure) until such ments, &c., not land shall have been actually delivered in execution by virtue of a writ „° yj Ymiie- of elegit or other lawful authority, in pursuance of such judgment, livered in execu- statute, or recognizance. ''""• 2. In the construction of this Act the term "judgment" shall be j„(„p,j(j„g„ „, taken to include registered decrees, orders of courts of equity and bank- ternu. ruptcy, and other orders having the operation of a judgocent ; and the term "land" shall be taken to include all hereditaments, corporeal or incorporeal, or any interest therein ; and the terra "debtor" shall be taken to include husbands of married women, assignees of bankrupts, committees of lunatics, and the heirs or devisees of deceased persons. 3. Every writ or other process of execution of any such judgment, .,^j..jjj^,^^^i,jj_ statute, or recognizance, by virtue whereof any land shall have been tion to be regij- actually delivered in execution, shall be registered in the manner pro- '°g*^^bc'd'b"°' vided by an Act passed in the session of the twenty-third and twenty- as^ft 24 Vict'! fourth years of her present Majesty, intituled " An Act to further c. 38. araend the Law of Property," but in the name of the debtor against whom such writ or process is issued, instead of, as under the said Act, in the name of the creditor j and no other or prior registration of such judgment, statute, or recognizance shall be or be deemed necessary 333 Appendix. Creditor to whom land delivered In execution en titled to obtain Bum- mary order from court of Chancery for sale. Where there are other creditors, notice of sale to be serred upon them. Parties claiming interest through debtor bound by order for sale. Extent of Act. for any parpose'; and no reference to any such prior registration shall be required to be made in or by the memorandum or minute of such writ or other process of execution which shall be left with the senior master of the court of Common Pleas for the purpose of such registry. 4. Every creditor to whom any land of his debtor shall have been actually delivered in execution by virtue of any such judgment, statute, or recognizance, and whose writ or other process of execution shall be duly registered, shall be entitled forthvrith, or at any time afterwards while the registry of such writ or process shall continue in force, to obtain from the court of Chancery, upon petition in a summary way, an order for the sale of his debtor's interest in such land, and every such petition may be served upon the debtor only ; and thereupon the court shall direct all such inquiries to be made as to the nature and particulars of the debtor's interest in such land, and his title thereto, as shall appear to be necessary or proper ; and in making such inqui- ries, and generally in carrying Into effect such order for sale, the prac- tice of the said court with respect to sales of real estates of deceased persons for the payment of debts shall be adopted and followed, so far as the same may be found conveniently applicable. 5. If it shall appear on making ^uch inquiries that any other debt due on any judgment, statute, or recognizance is a charge on such land, the creditor entitled to the benefit of such charge (whether prior or subsequent to the charge of the petitioner) shall be served with notice of the said order for sale, and shall after such service be bound thereby, and shall be at liberty to attend the proceedings under the same, and to have the benefit thereof ; and the proceeds of such sale shall be distri- buted among the persons who may be found entitled thereto, according to their respective priorities. 6. Every person claiming any interest in such land through or under the debtor, by any means subsequent to the delivery of such land in execution as aforesaid, shall be bound by every such order for sale, and by all the proceedings consequent thereon. 7. This Act shall not extend to Ireland. 30 & 31 VICT. Cap. 48. An Act for amending the Law of Auctions of Estates. [15th July, 1867.] • «•••• Short title. I . This Act may be cited for all purposes as the " Sale of Land by Auction Act, 1867." Commencement 2. This Act shall commence and take effect on the first day of August, of Act. 1867. Interpretation of ^- "Auctioneer'' shall mean any person selling by public auction terms. any land, whether in lots or otherwise : "Land" shall mean any interest in any messuages, lands, tene- ments, or hereditaments of whatever tenure : "Agent" shall mean the solicitor, steward, or land agent of the seller. 30 8f 31 Vict. Cap, 48. 33 "PuflFer" shall mean a person appointed to bid on the part of the owner. 4. And whereas there is at present a conflict between Her Majesty's Where sales are courts of law and equity in respect of the validity of sales by auction of '"""'i'' '" '»" '» land where a puffer has bid, although no right of bidding on behalf of ll^^, ™^°'"' '" the owner was reserved, the courts of law holding that all such sales are absolutely illegal, and the courts of equity under some circumstances giving effect to them, but even in courts of equity the rule is unsettled : and whereas it is expedient that an end should be put to such con- flicting and unsettled opinions : be it therefore enacted, that from and after the passing of this Act whenever a sale by auction of land would be invalid at law by reason of the employment of a puffer, the same shall be deemed invalid in equity as well as at law, 5. And whereas as sales of land by auction are now conducted many Rule reipectini of such sales are illegal, and could not be enforced against an unwilling "'^ w'thout re- purchaser, and it is expedient for the safety of both seller and purchaser ""' that such sales should be so conducted as to be binding on both parties : be it therefore enacted by the authority aforesaid as follows : that the particulars or conditions of sale by auction of any land shall state whether such land will be sold without reserve, or subject to a reserved price, or whether a right to bid is reserved ; if it is stated that such land will be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person. 6. And where any sale by auction of land is declared either in the Rule respecting particulars or conditions of such sale to be subject to a right for the •?' J ""^J^^' '<> seller to bid, it shall be lawful for the seller or any one person on his "^i ashl^nmj ° behalf to bid at such auction in such manner as he may think proper, think proper. 7. And whereas it is the long settled practice of courts of equity in Practice of open- sales by auction of land under their authority to open biddings even ™l biddings, by i J , . • T_ • J 1 ._■ order of Chan- more than once, and much inconvenience has arisen from such practice, eery, except on and it is expedient that the courts of equity should no longer have the gfind of fraud, power to open biddings after sales by auction of land under their tinned."™"" authority : be it further enacted by the authority aforesaid, that the practice of opening the biddings on any sale by auction of land under or by virtue of any order of the High Cfourt of Chancery shall, from and after the time appointed for the commencement of this Act, be discon- tinued, and the highest bondjide bidder at such sale, provided he shall have bid a sum equal to or higher than the reserved price (if any), shall be declared and allowed the purchaser, unless the court or judge, shall, on the ground of fraud or improper conduct in the management of the sale, upon the application of any person interested in the land (such application to be made to the court or judge before the chief clerk's certificate of the result of the sale shall have become binding), either open the biddings, holding such bidder bound by his bidding, or dis- charge him from being the purchaser, and order the land to be resold upon such terms as to costs or otherwise as the court or judge shall think fit. 8. Except as aforesaid, nothing in this Act contained shall affect any Court of Chan- sale of land made under or by virtue of any order of the High Court of S'r respe'cu Chancery in England, of the high court of Chancery in Ireland, or of the excepted from landed estates court there, or of the court of Chancery in the county operation of Act. palatine of Lancaster, or of any county or other court having jurisdic- tion in equity. 9. This Act shall not extend to Scotland. Not to extend to Scotland. A a2 334 Appendix. 31 VICT. Cap. 4. jin Act to amend the Law relating to Sales of Reversiong. [7th December, 186?.] No purchMC, mad« bon^ flde^ of reversionftry interests to be let aside merely on tile ground of undervalue. Interpretation of " purcliase." Commencement of Act. 1. No purchase, made bond fide and withont fraud or unfair dealing, of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue. 2. The word "purchase" in this Act shall include every kind of contract, conveyance, or assignment under or by which any beneficial interest in any kind of property may be acquired. 3. This Act shall come into operation on the first day of January one thousand eight hundred and sixty-eight, and shall not apply to any purchase concerning which any suit shall be then depending. 31 & 32 VICT. Cap. 40. An Act to amend the Law relating to Partition. [25th June, 1868.] Short title. As to the term " the court." Power to court to order sale Instead of division. 1. This Act may be cited as the Partition Act, 1868. 2. In this Act the term " the Court " means the Court of Chancery in England, the court of Chancery in Ireland, the Landed Estates Court in Ireland, and the court of Chancery of the County Palatine of Lancaster, within their respective jurisdictions. 3. In a suit for partition, where, if this Act had not been passed, a decree for partition might have been made, then if it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others 3 1 ^ 32 Vict. Cap. 40. 335 of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. 4. In a suit for partition, where, if this Act had not been passed, a Bale on appU- decree for partition might have been made, then if the party or parties """o" "' neriain interested, individually or collectively, to the extent of one moiety or paTefinto-' upwards in the properly to which the suit relates, request the court to rested. direct a sale of the property 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 conse- quential directions. 5. In a suit for partition, where, if this Act had not been passed, a Asto purchaw decree for partition might have been made, then if any party interested of share of parly in the property to which the suit relates requests the court to direct a **'"""« '»'"• sale of the property and a distribution of the preceeds instead of a division of the property between or among the parties interested, the court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions, and in case of such 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. 6. On any sale under this Act the court may, if it thinks fit, allow Authority for any of the parties interested in the property to bid at the sale, on such parties intereated terms as to nonpayment 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. 7. Section thirty of The Trustee Act, 1850, shall extend and apply Application of to cases where, in suits for partition, the court directs a sale instead of Trustee Act. a division of the property. L'^o\'* ^'°'' 8. Sections twenty-three to twenty-five (both inclusive) of the Act Application of of the session of the nineteenth and twentieth years of Her Majesty's f™™'*' rf sale. reign (chapter one hundred and twenty), " to facilitate Leases and o. 120.) ' Sales of settled Estates," shall extend and apply to money to be received on any sale effected under the authority of this Act. 9. Any person who, if this Act had not been passed, might have P^.''"«" '? P«- maintained a suit for partition may maintain such suit against any one ' ""' ""' "' or more of the parties interested, without serving the other or others (if any) of those parties ; and it shall Lot be competent to any de- fendant in the suit to object for want of parties'; and at the hearing of the cause the court may direct such inquiries as to the nature of the property, and the persons interested therein, and other matters, as it thinks necessary or proper with a view to an order for partition or sale being made on further consideration ; but all persons who, if this Act had not been passed, would have been necessary parties to the suit, shall be served with notice of the decree or order on the hearing, and after such notice shall be bound by the proceedings as if they had been originally parties to the suit, and shall be deemed parties to the suit ; and all such persons may have liberty to attend the proceedings ; and any such person may, within a time limited by general orders, apply to the court to add to the decree or order. 336 Appendix. Co«i« in parti- 10. In a suit for partition the court may make such order aa it tion suits. thinks just respecting costs up to the time of the hearing. Jurisdiction of 12. In England the county courts shall have and exercise the like parut^n"""* '" power and authority as the court of Chancery in suits for partition (28 & 29 Vict. (including the power and authority conferred by this Act) in any case c. 99.) where the property to which the suit relates does not exceed in value the sum of five hundred pounds, and the same shall be had and exercised in like manner and subject to the like provisions as the power and authority conferred by section one of The County Courts Act, 1865. PART V. COUNTY COURT ORDERS AND RULES IN EQUITY. ORDER I. Plaint and Summons, All suits under the 1st, 2d, 3d, or 7th clauses of the first section of Kulel. the Act, and under the ninth section of 30 & 31 Vict. c. 142, shall o<»n™oiicement be commenced by filing a plaint in equity in the county court to which jurisdiction in the matter is given by the 10th section of the Act. Every plaint in equity shall state the name, address, and description Kule 2. of the plaintiff, and of the person intended to be brought before the n''c'^'Euie as court as defendant : and vfhere any party sues or is sued in a repre- sentative character he shall be so described in the plaint ; but this rule shall be subject to the 38th rule of the preceding county court rules (o). Every plaint in equity shall contain a concise statement of the jj^jg g_ grounds upon which the plaintiff seeks to obtain relief; and shall ask Plaint. for the specific relief to which he conceives himself entitled, and also for general relief. Where the plaint is filed by an attorney he shall endorse thereon Rule 4. his name or firm and place of business, and that the plaintiff sues by fA^^gy'^'* ^^ him as attorney ; and where there is more than one plaintiff, and the plaint is not filed by an attorney, the plaintiff who actually files the same shall endorse thereon his name and address. (a) That Bale ia as follows : — proceedings under sects. 79 and 80 ^ ^^ j^ ^j^^ ^ "Where the plaintiff is unac- of 9 S^ W Vict. c. 95, may be taken gs, ss. n and' guainted withthe defendant's chris- as if the true christian name and so. tian name, the defendant may be surnamehad been stated inthe sum- described by his surname, or by his mons, and all subsequent proceedings surnatneand the initial of his chris- thereon may be taken in conformity tian name, or by such name as he is toith such description, but loithout generally known by, and thedefen- pryudice to any amendment made dant Tnay be so described in the sum- at any future time by direction of mons; and in the event oftheplain- the judge." tiff or d^endant not appearing, the 338 Rule B. Form of plaint. Bule 6 Delirery to re- gistrar and filing of plaints. Rule 7. Bumraonfi on plaint. Rule S. Date and return of summons. Rule 9. Service of summons. Rule 10. Service when defendant is out of jurisdiction of 'county courts. County Court Orders, and Plaints in equity may be in forms similar to those set out in the schedule to these orders, with such variations as the nature and cir- cumstances of each particular case may require. The plaintiff or his attorney shall deliver at the office of the registrar the plaint, with as many copies thereof as there are persons to be brought before the court as defendants, and the registrar shall forth- with endorse on the plaint a memorandum of the day on which the same was received by him, and when such plaint shall be so endorsed it shall be taken for all purposes to have been duly filed on the date so endorsed thereon. The registrar shall, on the filing of such plaint, make out a sum- mons to the defendant, or to every defendant where there is more than one, to appear, and submit to the judgment of the court thereon. The summons shall be in the form in the schedule, and be dated of the day on which the plaint was filed, and may be returnable at any court to be holden' not less than one calendar month nor more than three calendar months from the filing thereof. The summons, with a copy of the plaint annexed thereto, shall be issued by the registrar to the bailifiF forthwith, who shall serve the same within seven days, and the service thereof shall be proved, in conformity with the present practice of the county courts j provided always, that the court may, upon facts duly verified by affidavit, allow substituted service where justice requires it. Where a defendant shall be out of England, the judge, or in his absence the registrar, may, upon an affidavit of the fact, direct the service of the plaint and summons to be effected within such time and in such manner as the judge or registrar may think fit. CRDER 11. Proceedings after Service. Rule 1. Admission. Rule 2. Notice of ad- mission. Where any defendant desires to admit the truth of the allegations in the plaint, and to submit to the judgment of the court, he may at any time before the return day of the original summons, in the pre- sence of a registrar of a county court, or in the presence of one of his clerks, or of an attorney of one of the superior courts, sign an admission in the form contained in the schedule to these orders ; and the signature of the defendant thereto shall be verified by affidavit, unless signed in the presence of the registrar of the court in which the suit is, or of one of his clerks. The admission shall be delivered to the registrar, together with a dopy thereof for each of the plaintiffs, or, where the plaint is filed by an attorney, with a copy for such attorney only j and the registrar shall forthwith file the same, and transmit a copy by post to each plaintiff, or the attorney, as the case may be, and after the receipt of such copy the plaintiff shall be entitled to the costs then already incurred, and to the further costs of attending the court and obtaining the decree or order to be made upon such admission, but to no other costs. Rules in Equity. 339 • The defendant may, within eight days after the service of the sum- Rule 3. mons, by a statement in writing signed by him, disclaim any interest the nattuo o" a in the subject matter of the suit, or admit or deny any of the state- disclaimer or ments in the plaint, or raise any question of law on such statements aied by dofen-° without admitting the truth thereof ; or he may state concisely any dant. new fact or document upon which he intends to rely as a defence at the hearing, or which he thinks advisable to bring to the notice of the court. Provided always, that in exercising his discretion as to costs, the judge shall consider the fact of a defendant having or not having availed himself of the powers given by this rule. The statement under the last foregoing rule shall be delivered to the Kule i. registrar, together with a copy thereof for each of the plaintiffs, or ^'igj,™™' '° ""^ where the plaint is filed by an attorney, with a copy for such at- torney only ; and the registrar shall forthwith file the same, and transmit a copy by post to each plaintiff or the attorney, as the case may be. Where the statement is filed by an attorney he shall endorse , Rules, thereon his name or firm and place of business, and that the defen- statement filed dant defends by him ; and where it is not filed by an attorney, the ^^ attorney. defendant who actually files the same shall endorse thereon his name and address. The plaintiff may, at any time before the return day of the sum- jjy,^ g mons, by notice in writing delivered at the office of the registrar. Dismissal of require the plaint to be dismissed as against all or any of the defen- ^'"'• dants, with costs, without prejudice to further proceedings or suits, and such notice shall operate as an order to dismiss accordingly ; and the registrar shall forthwith file such notice, and forward a copy thereof by post or otherwise to each of the defendants. ORDER III. Evidence. Except where otherwise provided by these orders, the evidence of Rule I. witnesses shall be taken vivd voce on oath according to the present ^^^^''^vt voce. practice on the hearing of plaints. Where a party desires to give in evidence any document, he may, Rule s. not less than five days before the hearing, give notice to any other party As to admission in the cause who is competent to make admissions, requiring him to ° '"="™°" '• inspect and admit such document ; and if such other party shall not 21 & 22 Vict, within a reasonable time make such admission, any expense of prov- o.27, s. 7. ing the same at the hearing shall be paid by him, whatever be the result of the cause, unless the court shall otherwise order; and no costs of proving any document shall be allowed unless such notice shall be given, except in cases where, in the opinion of the re- gistrar, the omission to give such notice has been a saving of expense. Where a party desires to inspect any document in the possession or Rule 3. under the control of any other party, he may, five days before the Inspection of hearing, give notice to such other party that he or his attorney desires p°°™i°n „" to inspect the same at any place to be appointed by such other party ; control of an 340 County Court Orders, and opposite partf. IStc 16 Vict, c. S6, s. 18. Rule 4. Summons to witness. Bule 6. Compulsory production of^^, documents by parties to suit. 15 & 16 Tlct. c. 86, m, 18 & Rule 6. Documents unobjected to received without formal proof. Rule 7. Affidavit. Rule 8. Examination de bene esse. Rule 9. Special exa- miner. Rule 10. How examination conducted. Rule 11. Allowance to and if such other party shall not appoint a convenient place, or allow the party giving such notice, or his attorney, to inspect such docu- ment virithin three days after receiving such notice, the judge may adjourn the hearing, and make such order as to costs as he shall think fit. Where a party requires the attendance of any other party, or of any witness, either to give evidence or to produce documents, he shall apply to the registrar to issue a summons requiring such other party or witness to attend the court or the registrar, as the case may be, or to attend and produce documents ; and such summonses shall respectively be drawn up by the registrar, and be issued by him to the bailiff, who shall serve the same : and in every summons to produce documents the registrar shall insert a description of the documents required. Where a party served with a summons under the last rule shall not at the hearing produce the documents required, the court may, upon admission or proof of the service of such summons within a rea- sonable time, and that such documents are in the possession of the party so served, and that they relate to the matter then pending before the court, make an order for their production by bim, and the court may deal with them when so produced, and with all costs occasioned by their non- production, as may appear just : pro- vided that nothing herein shall prevent the court from receiving secondary evidence of any document of which notice to produce has been given. Where any documents are produced to the court from proper cus- tody, they shall be read without further proof, if they appear genuine, and' if no objection be taken thereto ; and if the admission of any document so produced be objected to, the judge may adjourn the hearing for the production of the documents, and the party ob- jecting shall pay the costs caused by such objection, in case the documents shall afterwards be proved, unless the judge shall otherwise ' order. Where a party desires to use at the hearing an afiSdavit by any par- ticular witness, or an affidavit as to particular facts, he may, ten days before the hearing, give a notice, with a copy of such affidavit annexed, to the party against whom such affidavit is to be used ; and unlpss such last-mentioned party shall within five days give notice to the other party that he objects tp the use of such affidavit, he shall be taken to have consented to the use thereof. Where it shall be necessary to examine a witness de bene esse, appli- cation upon affidavit shall be made to the judge to appoint an examiner for that purpose. Upon the application of a party desirous to examine a witness resid- ing out of the jurisdiction of the court, the judge may, if he thinks fit, appoint the registrar of the court within the district of which such witness resides to take the examination of such witness. Where any witness is examined by a registrar he shall be examined on oath, and the registrar shall transcribe the answers of such wit- ness, and the deposition shall be subscribed by the witness and the registrar who shall have so examined him, and shall then be trans- mitted by post to the registrar of the court in which the suit or proceeding is pending. The allowance to be made to witnesses for attendance either before the court or registrar shall in no case exceed the highest rate of the allowances in actions. Rules in Equity. 841 ORDER IV. Suits. Hearing. Upon the day on which the summons is returnable all parties shall Rule l. come to the court prepared, so far as the nature of the case will admit, How partien to with evidence to enable the judge to try the whole matter of the suit °°°° VKv^^ei. upon the merits, and then to determine the same by a final decree or to make such decretal order, or give such directions for adding parties to the suit, for making inquiries, taking accounts, realizing assets, or doing any Act which the judge may consider necessary to enable him to make a final decree upon a day to which the hearing may be adjourned. A suit in equity shall be heard in open court as plaints in the County Rule 2. Court are now tried. Hearing. Affidavits and depositions used at the hearing shall be read as the Rule 3. evidence of the person by whom they are used. Affidavit!. Upon the hearing the court may dismiss the suit, or grant the relief Bnlo i. asked by the plaint, or any part thereof, or may grant any other relief ^^^ "J ^°' consistent with the case made by the plaint, or make any order giving directions for, or with respect to, the prosecution of the suit, as the circumstances of the case may require, and also make such order as to costs as the court may think fit. Where the court shall order any question of fact, or any question as Rule 6. to the amount of damages, to be tried by a jury, the court shall adjourn '"'J'- the hearing, and appoint a day for the trial of such question by a jury ; "• ''• of ♦he Act. and thereupon the practice shall be in all respects the same as in actions where either party has required a jury, including the power to direct a new trial when necessary. Where the court shall order any question of fact, or any question as Buie 6. to the amount of damages, to be tried by a jury, the judge' shall reduce Record for trM. the question into writing, and the same shall be called the "Record for Trial." ORDER V. Sdits. Decretal Orders. Where the court makes any decretal order the Registrar shall, as Rule l. soon thereafter as conveniently may be, draw up, seal, and file such J^^^'^'""' *" '*'''"' Where a decretal order directs any deed to be prepared and executed, Rn'o 2. it shall state by what party the said deed shall be prepared, and to derf'.""'''"" " * whom it shall be submitted for approval. 342 County Court Orders, and Where upon the hearing it appears to the court expedient that a re- ceiver be appointed, such appointment shall be made by the decretal order, whether the same be asked as part of the relief in the plaint or not. Where real property is ordered to be sold, the decretal order shall direct who shall have the conduct of the sale, and by whom the con- ditions and contracts of sale, and the abstract of title, shall be pre- pared. And where any conditions or contracts are ordered to be settled by a conveyancing counsel it shall name the counsel to whom they are to be submitted. Where a decretal order directs any personal property to be sold, the Sals of personal same shall be sold, under the superintendence of the high bailiff, by public auction, unless the court shall otherwise order. Where any decretal order directs any accounts or inquiries to be taken or made, or any Acts to be done, by the registrar, high bailiff, receiver, or parties, it shall name a day within which all such acts shall be done, and accounts and inquiries completed, and shall also name a day, not less than fourteen days after that day, on which the registrar shall certify the result of the accounts and inquiries, and what has been done under such decretal order, and on which the cause will be further heard, and if practicable a final decree made. Bule ». Becelver. Bule 4. Bale of real property. properly, Bole 6. Accounts or in. quiries. ORDER VI. Execution of Decretal Orders. Bule I. Deed how settled. Rules. In taking ac- counts, &c., registrar to be chief clerk. 15 & 16 Vict, c. 80, ss. 30, 31 Rule 3. In taking ac- counts, account books to be prima facte evidence of the matters therein contained. Rule 4. AdvertiBement for creditors, &c. Where a deed is ordered to be prepared, and the parties cannot agree upon the form thereof, the judge may, upon the application of either party, settle the same himself, or name a conveyancing counsel by whom the same shall be settled, subject to the final approval of the judge. Where a decretal order directs that any account be taken or inquiry made, such account shall be taken and inquiry made by the registrar, and he shall for that purpose have all the powers and discharge ail the duties of a chief clerk of the Master of the Rolls or a Vice-chancellor in the court of Chancery ; and all parties prosecuting any such accounts or inquiries shall have the same power of summoning wit- nesses, including as witnesses any parties in the cause, and of examin- ing them on such accounts or inquiries, and of compelling the produc- tion of documents, as they had on the original hearing ; and all rules as to the summoning, swearing, and examining of witnesses, and the production of documents at the hearing, shall be applicable (as far as may be) to such summoning, swearing, examining, and production on taking any such accounts, or prosecuting any such inquiries. Where a decretal order directs accounts to be taken, any books of account in which the accounts required to be taken, or any of them, have been kept, shall, unless the judge shall otherwise direct, be taken as primd fade evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised. Every advertisement for creditors or other persons having any claim upon or interest in the distribution of any assets to be administered by the court, which shall be issued pursuant to any decretal order, shall Mules in Equity. 343 direct every such creditor or other person, by a time, to be thereby limited, to send to the registrar his name and address, and the full par- ticulars of his claim or interest, 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 shall be fixed for adjudicating on the claims. No such creditor or other person need make any affidavit, or attend in support of his claim, unless he is served with a notice requiring him „ ,,?"'« ^- . toJ„ 1,'ri -11 ^o Creditors need do SO, as heremafter provided. not .ttend with- Every creditor shall produce or transmit to the registrar any security out notice, held by him, at such time as shall be specified in the advertisement for Rule 6. that purpose, being the time appointed for adjudicating on the claims ; deeds' aud and every creditor shall, if required, by notice in writing to be given by documents to be the registrar, produce or transmit to the registrar all other deeds and JegSer.'' '° documents necessary to substantiate his claim before the registrar at bis office at such time as shall be specified in such notice. Every person claiming as heir-at-law, devisee, next of kin, or legatee shall, if required, by notice in writing to be given by the registrar, pedigree or" produce or transmit to the registrar any pedigree or proof mentioned in proof to he such notice within such time as shall be therein specified. regfstra* '° In case any creditor or other person shall neglect or refuse to comply with the two last preceding rules, he shall not be allowed any costs of j^^'if ^' proving his claim unless the registrar shall otherwise direct. allowed. At the time appointed for adjudication upon the debts or claims, the registrar shall take the evidence of the executor, administrator, or other p,oofof debti accounting party upon such debts or claims, and may thereupon, in or claims his discretion, allow any of such debts or claims without further proof, and may direct such investigation of all or any of the debts or claims not allowed, and require such further particulars, information, or evi- dence relating thereto as he may think fit, and may, if he so think fit, require any creditor or other person to attend and prove his claim, or any part thereof; and the adjudication on such claims as are not then allowed shall be adjourned to a time to be then fixed. Notice of allowance shall be given by the registrar to every creditor jjotji^"*! "*• or other person whose claim, or any part thereof, has been allowed, and allowance, notice shall also be given by him to every such creditor or other person as he shall think fit, 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 such creditor or other person shall not comply with such notice, his claim, or such part thereof as aforesaid, shall be disallowed. j{„je n. Any such creditor or other person who has not before sent in the claims not particulars of his claim pursuant to the advertisement, may do so two before made, days previous to any day to which the adjudication is adjourned. if any claim be sent in after the time fixed by the advertisement, d^i^;" ?„„ j^te, (except as before provided in case of an adjournment) the registrar may, Hule 13. upon special application, entertain the same, upon such terms and con- Allowances. ditions as to costs and otherwise as he thinks fit. In taking any account directed by any decretal order, all just allow- i?'^\^„5,*;„ ances shall be made without any directions for that purpose in such j„^ge'°ftir ° order. further direc- Where the registrar, high bailifl^, receiver, or any party has by any tiemmeromotu. decretal order been directed to do any act for doing which it may be found necessary to have further directions or an order of the court, the 344 County Court Orders, and registrar shall apply to the jadge for such direction or order, and upon such application the judge may give such direction or make such order as he may think fit, or may appoint a time to hear all parties upon the application so made by the registrar ; and if the judge shall make such appointment for hearing, the same shall operate as a stay of proceedings in the suit until the day so appointed, if he shall so direct. ORDER VII, Suits. Absent Partiea. Hide 1. Where any matter is referred to the registrar by a decretal order, he rartieZ " '" shall, as soon as conveniently may be, ascertain if there are any parties who, if the decretal order had been made in a suit pending in the court of Chancery, ought, under the 42nd section of the 15 & 16 Vict. c. 86, to be served with a notice under Rule 8 of such section. Rule 2. Where it shall be necessary to serve any parties with the notice men- Notice to parties, tioned in the foregoing rule, the same shall be prepared by the regis- trar, and issued by him to the bailiff, who shall serve the same, and upon such notice the party served therewith may attend the proceed- ings under the decretal order. Kuie 3. Any party who shall be served with a notice under the last fore- Applicatton to going rule, may apply to the court at the next sitting, or by leave of d^eLl order, the judge at any subsequent sitting, to vary or add to the decretal order. ORDER VIII. SuitA. Bule 1. Begifitrar's certificate. Rule 2. Registrar's cer- tidcate to lie in Bule 3. Tariation of registrar's cer- Uflcatc. Rule 4. Confirmation of Certificate. Registrar's Certificate. Where a registrar has been ordered to certify to the court upon any matter he shall present to the court a certificate in writing signed by him. The registrar shall prepare his certificate seven days before the day appointed for presenting the same, and shall give notice by post to all parties to the suit that the same lies in his office for the inspection of any parties interested therein or affected thereby ; and he shall deliver a copy thereof to any person requiring the same upon payment of the costs of such copy. Where any party interested in, or affected by, the registrar's certi- ficate desires to have the same varied, he shall apply by himself, his counsel or attorney, at the court on the day appointed for presenting the same, and the judge shall thereupon hear and determine such application, and shall confirm or vary the certific'ate, and make such further order thereupon as he may think fit. If no application shall be made to vary the certificate, it shall be taken as confirmed, unless the judge shall otherwise order. Rules in Equity. 345 ORDER IX. Suits. Final Decree. When the court has determioed all the questions raised between the . ''»''' '• parties the registrar shall, as soon thereafter as conveniently may be. ^'"'" **"'""'■ draw up a final decree in accordance with the judgment of the court, and seal and file the same. ORDER X. Suits. Revivor and Supplement. Upon any suit becoming abated by death, marriage, or otherwise, or Rule 1. defective in consequence of any change or transmission of interest or °5"'^',g°Yf't liability, the judge shall, on application of any person having a right so c. se. s. 62.' ' to apply, make an order reviving the said suit, or such supplementary decree or order as may have become necessary in consequence of any such matters as aforesaid. An order under the foregoing rule shall be drawn up by the registrar Rule 2. and sealed with the seal of the court, and issued to the bailiff, who f///^'" '" shall serve the same upon such person or persons as the court shall direct. After service of such order, the suit shall, as between the party by Eulo s. whom the order has been obtained and the party on whom it has been f°"° j„'"h"* served, be in the same plight and condition as it was in before it had thereb; and become abated or defective as aforesaid ; provided that the person so may appeal, served may move the court at the next sitting, or by leave of the judge Jfgg ',^ J^^' at any subsequent sitting, to discharge such order, and such motion shall be made upon affidavit of the facts relied upon to support the same. ORDER XI. I^OCEEDINOS UNDEB THE 5th, 6th, AND 8th CLAUSES OF THE 1st Section of the Act, and Section 24 of 30 & 31 Vict. c. 142. All proceedings under the 5th and 6th clauses of the first section of Raje i. the Act shall be by petition, and such petition need not show title Petition. except so far as is provided by the rules in this order. Where a trustee petitions under the said 5th clause for an order in B.\ile 2. any matter relating to the trust, he shall file his petition at the office of Petition! by the registrar, and leave thereat as many copies thereof as there are *""'™'- persons beneficially interested in the due execution of the trust, and he shall state in such petition his own name, address, and description, and also the names, addresses, and descriptions of the persons bene- ficially interested, so far as he is able, and the nature of the trust, and 846 Rule S. FetitionB by guardian or trustee of infant or next friend. Bule 4. Application for injunction. Rule 6. SO & 31 Vict. c. 142, 1. 24. Rule? Form of affi- davit. Rule 8. Endorsement on affidavit. Rule 9. Certificate of registrar. County Court Orders, and how created, the property or money to which the same relates, and the substance of the order which he seeks to obtain. Where any guardian or trustee of any infant petitions for an order relating to the maintenance or advancement of such infant, he shall file his petition at the office of the registrar, and where any person, as next friend of an infant, petitions on behalf of such infant for an order upon or against the guardian or trustee of such infant, he shall file his petition al the office of the registrar, and leave thereat as many copies thereof as there are guardians or trustees. And in such petition shall be stated the names, addresses, and descriptions of the petitioner, and of all the persons to whom such order is intended to relate, and shall also state the nature of the guardianship or trust, and how created, of the property to which the trust relates, and the substance of the order which the petitioner seeks to obtain. Where any person intends to apply under the 8th clause of the first section of the Act, for an order in the nature of an injunction (except as is provided in Order XII. for. urgent cases) he shall deliver at the office of the registrar a notice of his intention to apply for the same, together with as many copies thereof as there are persons upon or against whom such order is intended to be obtained, and he shall state in such notice his own name, address, and description, and, so far as he can, the names, addresses, and descriptions of all such persons, and also the substance of the order which the petitioner seeks to obtain. Any person desiring to pay money, transfer stock, or deposit security in trust to attend the orders of any county court, under section 24 of 30 & 31 Vict. c. 142, shall file with the registrar of the county court having jurisdiction in the matter an affidavit, entitled in the matter of the last Act, and of the particular trust, and setting forth : 1 . His own name, address, and description : 2. The place where he is to be served with any petition or summons, or any notice of any proceeding or order of the court relating to the trust fund : 3. The amount of money, stock, or security which he proposes to pay, transfer, or deposit in trust to attend the orders of the court : 4. A short description of the trust or of the instrument creating it : 5. The names, addresses, and descriptions of the persons interested in or entitled to, or claiming to be interested in or entitled to, the fund, to the best of the knowledge and belief of the trustee : 6. The submission of the trustee to answer all such enquiries re- lating to the application of the money or stock paid in or trans- ferred or security deposited as the court may think proper to make or direct. The affidavit may be in the form set out in the schedule to these orders, with such variations as each particular case may require. Immediately on the receipt by the registrar of the affidavit, he shall endorse thereon a memorandum of the day on which the same was received by him, and when such affidavit shall be so endorsed it shall be taken for all purposes to have been duly filed on the date so endorsed thereon. The persons filing the affidavit, or any of them, may apply to the registrar to give to them a certificate entitled in the matter of the Act 30 & 31 Vict. c. 142, and of the particular trust, and under the seal of the court, certifying that the affidavit has been filed, and such certifi- Rules in Equity. 347 cate maybe in the form set out in the schedule to these orders, with such variation as each particular case may require. In the case of money, the persons filing the affidavit, or any of them, Rule lo. may, upon the receipt of the before-mentioned certificate, pay the i^o™""* °' money into a post office savings bank, under section 24 of 30 & 31 Vict. c. 142, and obtain from the officer of the bank a receipt for the same, and shall forthwith leave the said receipt with the registrar, and the registrar shall accordingly endorse thereupon a memorandum of the day on which the same was received by him, and when such receipt shall be so endorsed it shall be taken for all purposes to have been duly recorded on the date so endorsed thereon. In the case of stocks, the persons filing the affidavit, or any of them, euIo u. may, upon the receipt of the before-mentioned certificate, transler the Transfer of stocks into the names of the treasurer and registrar of the county court ' "'^ ' mentioned in the said certificate, in trust to attend the orders of the court, and shall forthwith leave the transfer ticket with the registrar, and the registrar shall immediately endorse thereon a memorandum of the day on which the same was received by hira, and when such transfer ticket shall be so endorsed it shall be taken for all purposes to have been duly recorded on the day so endorsed thereon. r r la In the case of security, the person filing the affidavit may forthwith Deposit of deposit the security with the registrar in the name of the treasurer and security, registrar, in trust to attend the orders of the court, and the registrar shall immediately endorse on the affidavit a memorandum of the day on which the security was deposited with him. The registrar shall, within twenty-four hours after the deposit of the ,^"^% "' security, send notice thereof by post to the treasurer of the court, stating treasurer of therein the particulars of the deposit, which notice may be in the form in deposit. the schedule, with such variations as each particular case may require. Where there is a county court in which there is not a treasurer, the Rule 14. transfer or deposit shall be made into the name of the registrar and of ^here no the superintendent of the county court department of the treasury for the time being. Immediately after the recording of the receipt or transfer ticket, or Kulc is. the deposit of the security, the registrar shall give to the persons paying 4ent of pay- in the said money, or transferring the said stocks or depositing the mcnt. security an acknowledgment or certifieate of such payment or transfer or deposit, and such acknowledgment or certificate may be in the form set out in the schedule to these rules, with such variations as each particular case may require. Immediately after the recording of the receipt or transfer ticket, or Rule le. giving a certificate of deposit of security, the registrar shall cause the ^„"g"j'*^" necessary entry to be made in "The Suits and Proceedings in Equity ' Book," including the title of the particular trust, and the amount of money or stock paid or transferred, or security deposited, and the names and addresses of the person or persons mahing such payment, transfer or deposit, and the names of every person stated in the affidavit to be or to claim to be interested in or entitled to such money or stock, and their addresses and descriptions, as given in the affidavit; and the registrar shall forthwith, by post, send to each of such last-mentioned persons, to the addresses given in the affidavit, a notice of the said payment, transfer, or deposit it, which notice shall be under the seal of the court, and may be in the form set out in the schedule to these rules, with such variations as each particular case may require. Any person interested in or entitled to the fund, or (if need be, but Hule 17. not otherwise,) the trustee may apply by petition, respecting the invest- "" "'"'' P^''" 34S County Court Orders, and tion for order as tnent, paying out, or distribution of the fund or income thereof, and to fund. the petition shall be filed at the office of the registrar ; and the peti- tioner shall leave thereat, where the petition relates to the income only of the fund, aa many copies thereof as there are trustees and persons, other than the petitioner, interested in the due execution of the trust so far as regards the income only, and in all other cases as many copies thereof as there are trustees and persons, other than the peti- tioner, interested in the due execution of the trust, and he shall state in such petition his own name, address, and description, and a place where he may be served with any petition, or notice of any proceeding or order of the court, relating to the said fund, and also the names, addresses, and description of the other persons interested, so far as he is able, the nature of the trust, and how executed, the trust property, and the substance of the order which he seeks to obtain . Unless the judge shall otherwise direct, the. trustee shall be served with notice of every application made to the court respecting the fund or the income, by any person beneficially entitled thereto. Where a trustee shall have availed himself of the provisions of section 24 of 30 & 31 Vict, c, 142, without sufficient reason, the judge may direct such trustee to bear his own costs, and pay the costs of any other parties, or to bear and pay any part of such respective costs, as the judge shall think fit. Under this order petitions shall be filed and notices shall be delivered at the office of the registrar seven days before the sitting of the court at which the petition is to be heard or application made. The registrar, upon receiving any such petition or notice and the copies thereof, shall issue the copies under the seal of the court to the bailiff for service upon the respective persons to whom they are addressed, together with a notice, signed by himself and under the seal of the court, informing them of the day and hour on which the petition or application will be heard, and that if they do not attend, either in person or by their attorneys, such order will be made and pro- ceedings taken as the judge may think just and expedient. The bailiff of the court shall, four days at least before the hearing, serve all copies of such petitions and notices. Upon the hearing of any petition or application under this order, unless the judge shall otherwise direct, the facts relied upon in support of or in opposition to such petition or application shall be proved by affidavit. Where the judge makes an order upon such petition or application, the registrar shall, as soon thereafter as conveniently may be, draw up, seal, and file such order. The preceding orders relating to suits shall, in all cases where they "Jita" extend to ^""^ applicable, be construed as extending to proceedings under this proceedings. Order. Rule 18. Notice to trus- tees, Bule 19. When trustee to pay costs. Rule 30. Time of filing petitions and giving notices. Rule 21. Registrar to issue not'Ces. Rule 22. Service of peti- tions and no- tices. Rule 23. Pacts may be supported by affidavit. Bule 24. Registrar to draw up order, Rule 25. Orders as to Rule I. Peremptory mo- tions. ORDER XII. SUITS AND PROCEBDINQS. Ex parte Applications. Whenever in any suit or proceeding it shall become necessary to secure the possession of any property, or to obtain security from any person for any monies in his possession, or to enforce the deposit or Rules in Equity, 349 the payment into court thereof pending litigation, or the immediate sale of any goods or chattels, and the deposit or payment into court of the purchase money thereof, or to Obtain an order in the nature of an injunction, any party may apply ex parte to the judge, either in or out ot court, upon affidavits setting forth the facts rendering such order immediately necessary, and upon such application the judge may either make an order absolute in the first instance, or make an order to be absolute at any time to be ordered by him unless cause be shown to the contrary, or may make such other order or give such directions in the matter as the judge may think fit, and may order immediate execution. The draft of all orders under the foregoing rule shall be prepared Kule 2. beforehand by the registrar of the court in which snch suit or proceeding 4,'^™ ""^ IS pending, and shall be presented by the party when he makes such apphcation to the judge to settle and sign. The draft so signed shall be transmitted by the applicant to the B"J« *■ registrar of the court in which the suit or proceeding is pending, who ?,awn anle«- shall draw up the order in confoimity therewith, and seal and file the cuted. same, and issue a copy thereof under the seal of the court to the bailiff for service, and execution shall be issued thereon, as by the order is directed. ORDER XIII. SUITS AND PROCEEDINGS. Amendmenls. The judge may, at or during the hearing, and before a final decree or Rule 1. order be made in any suit or proceeding under the Act, exercise all Amendments, powers of amendment mentioned in the 57th section of the I9 & 20 l^^^mJia^' Vict. c. 108 (6), so far as the same may be applicable to suits and pro- and es. ceedings in equity, and also all the powers and authorities of a judge of the High Court of Chancery ; and the Rules relating to Amend- ment in Actions shall apply, so far as they are applicable, to all suits and proceedings in equity. Those rules are as follows ; — 1 1 9. Where a person other than the defendant appears at the hearing, '9 & 20 Vict. and admits that he is the person whom the plaintiff intended to charge, "' '"*' '" "'" his name may be substituted for that of the defendant, if the plain- tiff consents, and thereupon the cause shall proceed, as to set-off and other matters, as if such person had been originally named in the summons, and the costs of the person originally named as the defendant shall be in the discretion of the judge. 120. Where a party sues or is sued in a representative character, but at the hearing it appears that he ought to have sued or been sued in his own right, the judge may, at the instance of either party and on such terms as he shall think fit, amend the proceedings accordingly, and thereupon the cause shall proceed, as to set-off and other matters, as if the proper description of the party had been given in the summons. (6) Vide Appendix, Part II. eh. xi. ante. B b2 350 County Court Orders, and 121. Where a party sues or is sued in his own right, but at the hearing it appears that he ought to have sued or been sued in a representative character, the judge may, at the instance of either party, and on such terms as he shall think fit, amend the proceedings accordingly, and thereupon the cause shall proceed, as to set-off and other matters, as if the proper description of the party had been given in the summons. 122. Where the name or description of a plaintiff in the summons la insufficient or incorrect, it may at the hearing be amended at the instance of either party by order of the judge, on such terms as he shall think fit, and thereupon the cause shall proceed, as to set-off and other matters, as if the name or description had been originally such as it appears after the amendment has been made. 123. Where the name or description of a defendant in the summons is insufficient or incorrect, and the defendant appears and objects to the description, it may at the hearing be amended at the instance of either party by order of the judge, on such terms as he shall think fit, and thereupon the cause shall proceed, as to set-off and other matters, as if the name or description had been originally such as it appears after the amendment has been made ; but if no objection it taken to the name or description the cause may proceed, and in the judgment, and all subsequent proceedings founded thereon, the defen- dant may be named and described in the same manner. 124. In actions by or against a husband, ifawife be improperly joined or omitted as a party, the summons may at the hearing be amended at the instance of either party by order of the judge, on such terms as he shall think fit, and thereupon the cause shall proceed, as to set off and other matters, as if the proper person had been made party to the suit. 125. Where it appears at the hearingthat a greater number of persons have been made plaintiffs than by law required, the name of the person improperly joined may, at the instance of either party, be struck out by order of the judge on such terms as he shall think fit, and there- upon the cause shall proceed, as to set-off and other matters, as if the proper party or parties had alone been made plaintiffs. 126. Where it appears at the hearing that a less number of persons have been made plaintiffs than by taw required, the name of the omitted person may, at the instance of either party, be added, by order of the judge, on such terms as he shall think fit, and thereupon the cause shall proceed, as to set-off and other matters, as if the proper persons had been originally made parties ; and if such person shall, either at the hearing or at some adjournment thereof, personally or by writing signed by him or his agent, consent to become a plaintiff in manner aforesaid, the judge shall then pronounce judgment as if such person had originally been made a plaintiff; but if such person shall not consent to become a plaintiff in manner aforesaid, either at the hearing or at the adjournment thereof, judgment of nonsuit shall be entered. 127. Where it appears at the hearing that agreater number of persons have been made defendants than by law required, the name of the person improperly joined may, at the instance of either party, be struck out by order of the judge, on such terms as he shall think fit, and thereupon the cause shall proceed, as to set-off and other matters, as if the proper party or parties had alone been made defendants, and the cost of the person improperly joined as a defendant shall be in the discretion of the judge. 128. When two or more persons are made defendants, and some of them have not been served, the name or names of the defendant or defen- Rules in Equity. 351 dants who have not been served, may, at the instance of either party, he struck oat by order of the judge, on such terms as he shall think fit ; and thereupon the cause shall proceed, as to set-off and other matters, as if the party or parties vrhose name or names have not been struck out, had alone been made defendant or defendants. ORDER XIV. SUITS AND PU0CEEDING8. jiffidavits. All affidavits shall be expressed in the first person of the deponent. .«= ,^"'f !' ,. A II rcj '.. i_ 11 ^ . ^^i_ 3 ^» • t* Mviii,, Affidavits to be All anidavits snail state the deponent s age, occupation, quality, and expressed in the place of residence, and also what facts or circumstances deposed to are ""■*' pe^'son. within deponent's own knowledge, and his means of knowledge, and source's'of*' what facts or circamstances deposed to are known to, or believed by knowledge to him by reason of information derived from other sources than his own ""^ ***'"•• knowledge, and what such sources are. The costs of affidavits not in conformity with the last two preceding Kule 3. rules shall be disallowed on taxation, unless the court shall otherwise affldavitt when direct. disallowed. Before any affidavit is used it shall be filed in the office of the Biile *• ' No affidavit in which there is any knife erasure, or which is blotted Rule 5. so aa to obliterate any word, or which is illegibly written, or so altered Krasure, biot- as to cause it to be illegible, nor any affidavit in which there is any inter- Jj"^' ^"„'"fn"™' lineation, unless the person before whom the same is sworn shall have affld'avits. duly authenticated sm;h interlineation with his initials in such manner as to show that such interlineation was made before it was sworn, shall be filed or used in any suit or proceeding. ORDER XV. SUITS AND PB0CEED1N08. Rehearing. No decree or order once made shall be reheard unless in any case ^^^^^^gl^ in which the judge, on special grounds, shall think such rehearing 1,0 allowed on necessary, and then only on such terms as the judge may think Just. tpecial grounds 352 County Court Orders and ORDER XVI. SUITS AND paOCEEDINGS. Enforcement of Decrees and Orders. Bule 1 Service of decree or order. On the application of the party entitled to the benefit of the decree or order, the registrar shall issue to the bailiflF a copy of such decree or order under the seal of the court with a notice to the party to be bound endorsed thereon, and the bailiff shall forthwith serve the same upon the party to whom such notice is addressed. No process shall issue to enforce any decree or order, unless by leave of the judge, until three days after a copy thereof under the seal of the court shall have been served upon the party to be bound thereby. Where any decree or order is made for the payment of money into court or by one party to another, the registrar shall, after the expira- tion of the time, if any, appointed by the decree or order for the pay- ment thereof, and after the expiration of the time limited by this order, upon application by the person having the conduct of the suit, or by the payee, issue to the bailiflF of the court a writ of fieri facias as a warrant of execution, as provided by section 94 of 9 & 10 Vict, c. 95. Where by a decree or order made in any suit or proceeding for the delivery up to any person of lands or tenements, goods or chattels, either as owner thereof, or to be sold, or to be held in possession until an order is made as to the disposition thereof, the registrar shall, upon the application of the person entitled to such possession, issue to the bailiff either a warrant of possession, or warrant of assistance, as the case may require. tK Where an order in the nature of an injunction has been made, whether made ex parte or not, the registrar shall, if the party by whom it was obtained desires to have the same served by his attorney, issue for service a copy of such order, under the s«al of the court, to such party. Where any breach of an order in the nature of an injunction shall have been made, the registrar shall, upon application by the person having the conduct of the suit, issue to the high bailiff or to such person iMjuiit.iuu, f""" service by his attorney, a notice under the seal of the court, requir- notice to be served ing the person who shall have been guilty of the breach of the said raus" whyto'""' °'^" *° appear at a court, to be held on a day to be named therein, to should not be show cause why he should not be committed for contempt for having disobeyed the said order. Where any person is required by any decree or order to pay money or do an act within a certain number of days after service of the copy of the decree or order, and such person shall not have paid such money or done such act within the time mentioned therein, the registrar shall, upon application by the person having the conduct of the suit, issue to the high bailiff, or to such person for service by bis attorney, a notice under the seal of the court, requiring the person who shall have neglected to obey the decree or order to appear at a court to be held on a day to be named therein, to show cause why he should not be com- mitted for contempt in having neglected to obey such decree or order. Rule z. when execu- tion may issue. Rule 3. Warrant,of Jl./a. Rule 4. Warrant of possession or assistance. Bule 5. Service of orders in the nature of an Injunction. Rule 6. Where a person makes breach of an order in the nature of an injunction, committed. Bule 7. Where a person neglects to obey a decree or order, notice to be served on him to show cause why he should not be committed. Rules in Equity. 353 Provided always, a party shall rot by proceeding under this ruie be pre- cluded from enfotcing the order by warrant of execution or any other process of the court. ORDER XVII. FUNDS IN COURT. The accounts of a registrar in equitable proceedings shall be examined .^"'^,'" and audited by the treasurer in the same manner as his accounts in accounts to be other proceedings are now or shall be examined and audited. audited. Where a party is directed to pay money into court, he shall attend fiule 2. and pay the same into the oflSce of the registrar, and obtain a receipt ^qiJ"'"' '"*" for the amount ; and the registi-ar shall, unless otherwise ordered by the judge, pay the same into a post office savings banl^, in accordance with the provisions of section 26 of 30 & 31 Vict. c. 142. The registrar shall enter in the " cash book " and " ledger for equi- Rule 8. table proceedings " all sums so paid to the account of the suit or ^"^Yinto"^' matter, in which it is paid, and where the interest of any fund, paid court and into a post office savings bank, has been directed to be paid to any payment of person, the registrar shall pay the same half-yearly out of any general '" ^"° ' monies in his hands. In the first week of January in each ^-ear the registrar shall transmit Kule 4. to the postmaster general his bank book, and upon its return he shall ,^ansinSVank send a letter, in the form in the schedule, to the commissioners of the book to treasury requesting them to authorize the postmaster general to allow postmasier- him to draw out a sum equal to the interest which he may have paid to Sonera . persons during the then past year, and shall apportion the same and carry the proportion to the account of each fund on which he has paid interest as aforesaid. The registrar wherever he shall be directed by the court to draw out ^""f „®,- „, D , .,-./.! J. ,1 i. J ■ 't. iJj'awing out 01 of a post office savings bank the fund or part of the fund m any suit or money from matter he shall send a letter to the commissioners of the treasury in savings bank. the form in the schedule. Where money has before the 1st January, 1868, been invested in stocks J^^J^^ll^^ and the investment is in the names of the treasurer and registrar alone, investments. the registrar shall from time to time receive the dividends of all the funds so standing in their names, and shall re-invest the dividend in the same names, except where and so far as the court shall otherwise direct, and shall apportion the amount so re-invested in his books to the right accounts. Where any order has been made upon any person to pay to the g^^^J^'^^^^^ accountant-general in Chancer)- any sum of money under section 5 of ^„^^^ j. 5 of the Act, such order shall be drawn up by the registrar and issued to the Act. the bailiff of the court ; by whom the same shall be served personally upon the person ordered to make the payment. -■ t, , a Where default shall be made in the production of the certificate of ^^ »;««•„„ the accountant-general the registrar shall give notice in writing to ^^^^^ ;„ payment the judge of the fact of such default, and the judge may thereupon to accountant- direct a warrant of execution to issue in accordance with section 5 ot^^_^^.( ^f^ian. the Act. "■■/• 354 County Court Orders, anfi Bule I Married vomen. Where any married woman is interested in any principal money, stocks, shares, or securities exceeding in value £200, or £10 in annual payments, she shall be examined by the judge apart from her husband to ascertain whether the same shall be paid to him or made the subject matter of a settlement, but if she be under age the court shall order a proper settlement to be made. ORDER XVIII. THANSFEB OF PROCEEDINGS TO OR FROM COURT OF CHANCERY. Rule 1. TraDBfei' to court of Chan- cery where subject matter exceeds the amount to which jurisdic- tion is given by Act. Bule 2. Transfer from court of Chan- cery under section 8 of 30 & 81 Yict. c. 142. Rule 3. Endorsement. Rule i. Registrar to apply to judge for instructions. If during the progress of any inquiry under order of the court it shall be made to appear that the subject matter of the suit or proceeding exceeds the amount to which the jurisdiction of the court is limited, the registrar may proceed with the particular account or inquiry which is then before him, unless he thinks it inexpedient so to do, but he shall at the next sitting of the court present a certificate of the state of the suit and proceedings, and if the judge shall be of opinion that such excess exists, he shall make an order for the transfer of the suit or mat- ter to the court of Chancery ; and the registrar shall make and file with the record a copy of such certificate and order, and shall transmit the original, together with the order of the judge thereupon, under the seal of the court, by post or otherwise, to the office of the clerk of records and writs in Chancery, or to such other office or oflicer as the liOrd Chancellor may by general order direct, and shall also send notice, by post or otherwise, of the fact, to all parties and persons entitled to be served with a copy of the decree. Where any suit or proceeding is transferred under section 8 of the 30 & 31 Vict. c. 142, to a county court, the plaintiff shall lodge with the registrar thereof the order of transfer, together with all original documents in the suit or proceeding in his possession, and also a state- ment of the names and addresses of the several parties to the suit, and their attorneys, and the defendant shall lodge all original documents in the suit or proceeding in his possession, and either party shall from time to time lodge office copies of any further documents thejudge or registrar may require. The registrar shall forthwith endorse on the order of transfer the date on which the same was lodged. When the order of transfer is lodged the registrar shall forthwith apply to thejudge for directions as to the further steps in the suit or proceeding, and thereupon the judge may give such directions for carry- ing on the suit or proceeding as he may think fit, or he may appoint a time to hear and determine any matters in such suit or proceeding, and direct the registrar to summon all parties to appear on the day so appointed. And the judge shall also, if he think fit, order the registrar to give notice to the parties to the suit or proceeding, or any of them, that the order of transfer has been lodged. Rules in Equity. 355 ORDER XIX. Where any party desires to appeal under section 18, of the' Act Eule I. against the deterraioation or direction of a judge of a county court, ^^f'""''^''^ such appeal shall be had in accordance with the provisions of section 13 & I4 Tict. ] 5 of 13 & 14 Vict. c. 61, upon a case to be stated for the opinion of a^J'j.^"' '^' '*' the Vice-chancellor appointed in that behalf by the Lord Chancellor. is & 19 of the" The notice of appeal shall be in writing, and shall be signed by the Act. appellant, his counsel or attorney, and such notice shall be sent, toge- Notice "of appeal ther with the statement of the grounds, by post or otherwise, to the registrar as well as to the successful party. The pendency of an appeal shall not operate as a stay of proceed- Rule 3. ings, but the Vice-chancellor to whom such appeal is made, or the judge ^™"sta°^d"°' from whose decree or order the appeal is made, may stay the proceed- unless Vice-chan- ines pending the appeal, on such terms as to eivine security or other- cellor or judge • i . TT- 1. 11 'J ^, otherwise order. Wise as to such Vice-chancellor or judge may seem tit. The appellant shall prepare the case for appeal, and all cases on Rule 4. appeal shall, unless the judge shall otherwise order, be presented to ^y judje.^ signeA him for signature at the court held next after the parties shall have agreed upon the same ; and if the judge approves thereof it shall be signed by him, and sealed with the seal of the court ; but where the judge does not approve of the case submitted to him, both parties shall be summoned to attend him where and when the judge shall appoint, and at the place and time so appointed both parties shall be heard as to the form of the case, and the judge shall finally settle and sign the same, and it shall then be sealed by the registrar. Where the parties do not agree upon the form of the case to be Rule 5. stated, the appellant shall lodge with the registrar the draft case pre- „„j ^gree on pared by him, and the registrar shall give notice to the parties that the case, judge to same has been so lodged, and will, on a day to be named in the notice, =*'"* "*""'• be presented to the judge for his signature, and on such day the parties may appear before the judge, who shall determine the form of the case, and finally settle and sign the same, and it shall then be sealed by the registrar. When the case shall be so signed and sealed, a copy thereof shall be Rule 6. deposited with the registrar, and another sent by post or otherwise by a°^J,i°^''^ith the appellant to the successful party within three days next after the registrar. time of signing and sealing the same, and if the appellant do not comply with this rule the successful party may proceed upon the decree or order unless the judge shall otherwise direct. ' The appellant shall, within three days next after the case has been case to be signed and sealed, transmit the same with a copy thereof under the transmitted, seal of the court, by post or otherwise, to the oflSce of the clerks of records and writs in Chancery, or to such other office or officer in the court as the Lord Chancellor may by general order direct, and shall give notice, by post or otherwise, to the successful party that he has done so; in default whereof the successful party .may proceed on the decree or order, and shall, on the application to the court, be entitled to such costs as he shall have incurred in consequence of the appellant's pro- ceedings J provided that, instead of proceeding on such decree or order. 356 Rule 8. If appeal not prosecuted suc- cessful party to proceed. Bute 9. Entering judg- ment on app^. Bule 10. Appeal to Lan- caiiter court of Chancery. County Court Orders, and the respondent, if he think fit, may, within twenty-eight days from the signing and sealing of the case, transmit it in the manner prescribed, and give the lil^e notice to the appellant of such transmission. If, after the case has been transmitted, the appellant do not pro- secute his appeal, the court of appeal may dismiss the same for want of prosecution, and thereupon the decree or order appealed from may be prosecuted and enforced as if there had been no such appeal, and the respondent in the appeal shall be entitled to all costs he may have incurred by reason of the appeal, to be recovered cis costs in the court below. When the court of appeal shall have made a decree or order either party may deposit the same, or an oflSce copy thereof with the regis- trar of the county court, and upon being so deposited such decree or order shall be filed and may be enforced as if it had been made by the county court. All the rules in this order shall apply to appeals under section 1 9 of the Act to the court of Chancery of the county palatine of Lancaster, and the Vice-chancellor thereof, except that the case when signed and sealed shall be transmitted to the registrar of that court. ORDER XX. DUTIES OF BEGISTBAB. Bule I. Begistrar to keep books, and enter proceedings therein. Bule 3. Documents to be distinguished by the number of the plaint and letters. Bule 3. Duty of registrar when he rejects affidavits, or where documents are imperfect. Bule 4. Summons, &C-, to be sealed. Bule 5. Begistrar to appoint time and place for induiries and taking accoun;s. Rule 6. Hearing before Tegistrar. The registrar shall keep a book to be called " The Suits and Pro- ceedings in Equity Book," and shall enter and number in such bock each suit or proceeding consecutively in the order in which they are entered, and shall also enter therein a note of all documents filed and steps taken in such suit or proceeding. Upon the filing of any document it shall be distinguished by the number of the plaint or petition in respect of which it is filed being en- dorsed thereon, and it shall be further distinguished from other docu- ments filed in the suit or proceeding by placing after the number a distinctive letter of the alphabet. Where a registrar rejects an affidavit under Order XIV., he shall give notice, by post or otherwise, to the party offering the same for filing, and of the reasons for such rejection ; and where any other do- cument is so imperfect upon the face thereof, or by reason of having blanks therein, that it cannot be easily read or understood, the regis- trar may refuse to file, and may return the same by post, or otherwise, to the party offering the same, to be re-written, or the blanks filled up. Before any summons, notice, or other document, or any copy thereof, shall be issued by the registrar, the same shall be sealed with the seal of the court. Where the registrar is required by any decretal order to make inqui- ries or to take accounts, he shall appoint some day, being not less than twenty-one days from the date of such order, to sit in his office or at the court to hear and determine all matters relating to such inquiry and accounts, and he shall forthwith prepare and insert advertisements in conformity with such order, stating the time, place, and purpose of such sitting, and shall insert the same fourteen days previous to such sitting. Upon the day so appointed the registrar shall sit at the time and Rules in Equity . 357 place appointed, and shall hear all parties interested, their counsel or attorneys. Where a registrar is not prepared to certify to the court on the day Rule 7 mentioned in the order he shall apply to the judge for an extension of ^/tiflcate."" '"' time, and state the reason for making the application, and he shall give notice, by post or otherwise, to the parties of the enlargement of the time and of the day on which he is to certify. Whenever a notice for appeal is given, the registrar shall detain the . R"ie 8. proceeds of any execution which may then be in or may come into his reiai"money to hands pending such appeal, to abide the event of such appeal, unless abide result of the judge shall otherwise order. appeul. The registrars shall comply with all regulations which may from Rule 9. time to time be made by the Commissioners of Her Majesty's Treasury fe"u'°a^B°' for the safe custody of any securities deposited with them under section 24 of 30 & 31 Vict. c. 142. ORDER XXI. DUTIES or HIOH BAILITF. Rule I. Where any personal property is directed to be sold by auction, the is to sale of pei'- high bailiCF shall superintend the sale ; and where the property is to be 'o""' property- sold by private contract he shall carry out the directions of the court in respect of such sale. Kule 2. The high bailifif shall serve all documents issued to him by the re- Services and gistrar for service, and execute all warrants. '^"""buU^'s. Where a warrant shall direct the high bailiff to take possession of. Possession. without selling or delivering to a party, any goods or chattels, he shall make or caose to be made an inventory or appraisement of the goods or chattels which he may take into his possession, and may, upon re- ceiving as a deposit the amount of such appraisement or sufficient secu- rity, to be approved by the registrar, for the safe custody, and for the delivery up of possession upon request, of such goods and chattels, relinquish the possession thereof on condition that the same shall be re-delivered to him or held to abide the order of the court. All monies coming into the hands of the high bailiff shall be paid payment^v'er of over by him to the registrar to the credit of the suit or proceeding in money. which the same was so received by him within twenty-four hours after he shall have received the same. ORDER XXII. DUTIES OF BECBIVER. Every receiver appointed bv the court, other than the high bailiff. Rule 1. shall give such security by bond to the registrar for the faithful dis- fte^j.ver to give charge of his duties, and the payment over of money, as the court shall direct. 358 Bule 2. His accounts to be audited by registrar and when. Bule 3. To produce voucher and if required verify on oath. Rule 4. To produce account for audit upon notice. BuIeS. Audit once a year. Bule 6. Parties need not attend audit. Bule 7. Court may order income to be paid direct to parties. County Court Orders, and The receiver shall submit to the registrar, and the registrar shall audit, the accounts of the receiver, vrhich need not be in any particular form, as soon as conveniently may be after the receipt or realization of the assets, and immediately after such audit shall pay over to the registrar the balance found thereby to be in his hands. The registrar may require any receiver to produce any receipt, ac- counts, and vouchers necessary for verifying the accounts, and may disallow any item not proved to his satisfaction, and may, if he shall think fit, require any receiver to verify such accounts and vouchers upon oath. The receiver shall, at any time before the complete realization of the assets, produce his accounts to be audited in manner provided by this order, upon receiving seven days' notice in writing from the registrar so to do, and such notice may be sent by post or otherwise to the address of the receiver. Where the duties of the receiver are continuous, no longer period than one year shall in any case be allowed to intervene between each audit. In no case shall it be necessary for any party to attend at the audit of the receiver's account,- but where a party is dissatisfied with a receiver's account he may apply to the court or registrar for a revision of the registrar's allowances. The court may order the receiver to pay over, at such time or from time to time as it shall see fit, to the party entitled to the beneficial interest therein, or to the guardian of any infant, any yearly or other accruing rents or interest instead of paying the same into court, and to take credit for such payments in his accounts when audited. ORDER XXIII. Bale 1. Proceeding may be wholly or parUy printed. Bule 2. Documents to be sealed. Bule S. Service. Bule t. Change of attorney. Bule 5. Setting down for hearing. All plaints, petitions, statements, and documents whatsoever in any suits or matter under the Act which are required to be filed shall be on foolscap paper, and may be wholly or partly printed or written, and dates and sums occurring therein may be expressed in figures. All judicial or ofiicial documents in any suit or proceeding, and all copies thereof respectively issued by the court, shall be stamped by the registrar with the seal of the court. Every document, the mode of serving which is not specially defined by these orders, maybe served, and the service thereof may be proved in conformity with the practice that has heretofore prevailed in the county courts as to the service of summonses, excepting so far as the same relates to the time of service. Where any party to a suit or proceeding changes his attorney he shall give notice in writing of such change to the registrar, stating the name or firm and place of business of the new attorney, and the registrar shall file the notice. On the entry of a plaint or filing of a petition, the registrar shall set down the suit or matter for hearing by, in the case of a plaint, making the summons returnable on a day certain, and, in the case of a petition, inserting in the notice the day on which the matter is to be heard. Rules in, Equity. 359 The times of the sitting of the county court in matters of equity K"i« 6- shall be those appointed for the transaction of the general business fuZ^! ''""^ of the court, unless the judge shall otherwise order, and shall appoint a special day or days for a sitting of the court in matters of equity. Where any party to any suit or proceeding is unacquainted with the Rule 7. christian name of any person whose name he desires to insert in any J^e'unknown" plaint, proceeding, or document, he may describe such person by his surname, or by his surname and the initial of his christian name, or by such name as he is generally known by. Where any proceedings or documents are filed an extra copy, in ad- -, !*"•« 8. dition to the copies to be delivered under these orders, shall be left with nierits'for T"' ruse the registrar for the use of the judge. o' judge. The registrar shall transmit by post, prepaid, to the judge, five days »"'" 9. before the sitting of the court, all copies of proceedings and documents Sfngs to'be left for his use under these orders. forwarded to Copies of all proceedings or documents shall be prepared by the J'«'se. registrar for any person requiring the same, upon payment of the costs Registrar to pre- of such copies when the order for the same is given. pare all copies. Where by these orders any act is to be, or may be, done by any party Kule il. to a suit or proceeding, such act may be done either in person or by don^lly^coiinsel his attorney. or attorney. Where a party acts by attorney, service of any proceeding or docu- Bute 12, ment upon such attorney, or delivery of the same at his office, or sending Service on the same to him by post, shall be good service upon the party for oien" Mcept" whom such attorney acts, as upon the day when the same is so seived where penoiml or delivered, or upon which in the ordinary course of post it would be ^^JJ'^^'I delivered, except in cases where by these orders personal service upon a party is required. Any proceeding or document may by leave of the registrar, be served Kule 13. by the attorney of the party requiring to effect such service ; but the feY™of'the ^^ costs of such service, and proof thereof, shall not be allowed, except registrar be by order of the judge. atkinfe* ""^ ""^ Where by reason of the absence of any party, or from any other jj^,^ j^ sufficient cause, the service of any summons, notice, proceeding, or Substituted document cannot be made, or ought in the opinion of the judge to be service, dispensed with, the judge may wholly dispense with such service, or may, at his discretion, order any substituted service or notice by adver- tisement or otherwise in lieu of such service. The judge shall order in what newspaper any advertisements which Hule is. may from time to time be ordered in any suit or proceeding shall f"''^Sat°iiew6-' be inserted ; and when there is no fund in court, the expense of such papers adver- advertisements shall be paid to the registrar by the party requiring the l^s^™^^^" same before they are inserted. costs thereof to All advertisements to be inserted in the London Gazette shall be be repaid, transmitted to the Registrar of County Court Judgments in London, j^j^^tljgj;^;,, who shall cause them to be classified and inserted in lists under the i„ London direction of the commissioners of Her Majesty's treasury. Gazette. The judge may order what party shall have the conduct of any suit jju,g jj_ or proceeding, or any part thereof, and may rescind or alter such order, Conduct of or make new orders in that behalf, from time to time as he shall think '""•jj^o jg fit. Court may The judge may, if he think fit, enlarge or abridge any of the times ^gJ^J^* ",.;„ j, fixed by these orders for taking any step, or filing any document, or ^cntiMied in ' giving any notice, in any suit or proceeding. these orders. Before the name of any person shall be used in any suit or proceed- Rule 19. ing as next friend of any infant, married woman, or other party, such ^^"j'J^f^?^^^ '"'' to pay costs. 360 County Court Orders, and Sule 20. TraDBfer of suits or proceedings from one court to another in certain cases. Bule 81. Taxing officer. Bule 22. Interest on debts. Bule 23. Interest on legacies. Bule 24. Decrees to lie registered. Sec. 15 of the Act. Bule 26. Person in custody may apply to the registrar tor his discharge. Bule;^26. Forms. Bule 27. General prac- tice rule. person shall sign an undertaking, in the form given in the schedule, to be responsible for any costs to which the plaintiCF or applicant may become liable in the course of the suit or proceeding, and such un- dertaking shall be annexed by the registrar to the plaint or petition. Where suits or proceedings shall be commenced in different courts by parties in the same interest such suits or proceedings shall be trans- ferred to the court in which the first plaint or petition was filed, and shall there be proceeded with in the same way in all respects as if they had been commenced in that court. The registrar shall be the taxing officer of the court. Creditors are to be entitled to interest in respect of debts as to such of them as carry interest after the rate they respectively carry, and as to all others after the rate of il. per cent, per annum, from the date of the decretal order, and to costs of successfully proving such debts ac- cording to the scale of costs in that behalf. Interest is to be computed on legacies after the rate of il. per cent, per annum, from the end of one year from the date of the testator's death unless otherwise ordered or a different rate is directed by the will. A note of every decretal order or final decree made in any suit or of an order made on a petition shall be transmitted to the Registrar of County Court Judgments in London, who shall register the same under the direction of the commissioners of Her Majesty's treasury. Any person who may be in custody may apply to the Registrar for his discharge therefrom, upon giving to the party at whose suit he was committed notice of his intention so to appIy,>two days previous to bis applying. All proceedings and documents may be in forms similar to the forms in the schedule to these orders where the same are applic- able ; and in cases where no forms are provided, parties shall frame the proceedings or documents, using as guides those contained in the schedule. The rules and forms and practice in actions in the county courts shall, subject to these orders, be adopted with reference to suits and proceedings in equity, so far as they shall be respectively ap- plicable. ORDER XXIV. INTERPRETATION. Bule 1. Interpretation. In the Orders in Equity the following words shall have the several meaning hereby assigned to them, over and above their several ordi- nary meanings, unless there be something in the subject or context repugnant to such construction ; (viz.) (1.) The words " the Act" shall mean 28 & 29 Vict. c. 99 : (2 ) The word " party " shall mean a party to a suit or proceeding; and "person" shall mean any person, whether a party to the suit or proceeding or not; and the words " person " or " party " shall include a body politic or corporate : (3.) The word " affidavit " shall include statutable affirmations, attestations upon honour, and the word " sworn " shall in- clude affirmed according to the statute and attested upon honour : Rules in Equity. 361 (4.) Where any number of days is mentioned it shall mean " clear days." (5.) The word " court " shall mean the county court having juris- diction in the suit or proceeding, and the words " judge '■ and " registrar " shall respectively mean the judge and re- gistrar of that court. ORDERS UNDER THE COMPANIES ACT, 1867; and THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT, 1862. The General Order, Rules, and Forms of the High Court of Chan- cery regulating for the time being the mode of proceeding under " TTie Companies Act, 1862," shall be the Orders, Rules, and Forms in all 25 & 26 Viet, proceedings in the County Courts for the winding up of a society ™- ^'' *^- registered under " The Industrial and Provident Societies Act, 1862," 30 & 31 Vict- or for the winding up of a company under " The Companies Act, 1867," ■:• '31- so far as the same are applicable : Provided that, where it shall appear to the Court inconvenient that the Bank of England should be the bank used for the purposes mentioned in the Order and Rules, it shall be competent for the court to name some bank to be used in lieu of the Bank of England. FORMS IN EQUITY. 1867. Genera.!, Form of Heading and Conclusion for Plaints, No. of plaint in equity. In the county court of holden at A.B. of, &c. [address and description], plaintiff, and CD. of, &c. [jaddress and description], defendant. » • . * * This plaint was filed by of attorney for the plaintiff, or by of General Form of Heading and Conclusion for Affidavits. No. of plaint in equity. In the county court of holden at In the suit of A.B, v. CD. » * * * Sworn at in the county of "1 this I day of one thousand eight r hundred and sixty , before me J General Form of Heading and Conclusion for Petitions. Proceeding in equity. In the county court of holden at In the matter of The petition of A.B. of, &c. [address and description]. • » • ■• This petition was filed by of attorney for the plaintiff, or by c c 364 County Court Orders, and Gbnbrai. Form op Heading for Notices, Admissions, Statements, Orders, Certificates, and Warrants. Proceeding in equity. In the county court of holden at In the suit otA.B. v. CD. General Form op Heading fob and Conclusion for Decretal Order or Decree or Orders of Committal. No. of plaint or proceeding. In the county court of holden at on the day of In the suit of A.B. v. CD. [or in the matter of the petition of] Upon the hearing this day of Mr. for the plaintiffs and upon the hearing of Mr. for the defendants [or if some of the defendants do not appear, then for the defendants CD. &c. and no one appearing for the defendants E. and F. ;] it is ordered. » ♦ * • Given under the seal of the court this day of . 18 . By the court. E.F., Registrar. Take notice that unless you obey the directions contained in this order, obedience thereto will be enforced in such manner as the law provides. Mem. to be placed at Foot of every Summons, Notice, Decree, or Order of Court, or ant other Process op the Court. Hours of attendance at the office of the registrar [place of office] from ten till four, except on [fiere insert the day on which the office mill be closed], when the office will be closed at one. Rttles in Equity. 365 Undertaking by Next Friend op Infant to be responsible for defendant's costs. In the county court of holden at I, the undersigned , being the next friend of A. S., who is an infant, and who is desirous of entering a plaint [or of taking proceedings] in this court against C. J), of, &c., hereby undertake to be responsible for the costs of the said C. J). of, &c., in the cause, and that if the said A. B. fail to pay to the said C. D,, when and in such manner as the court shall order, all such costs of such cause as the court shall direct him to pay to the said C. D., I will forthwith pay the same. Dated this day of (Signed). Affidavit in support of Application for substituted Service. I, J. S. of [address and description], make oath and say as follows : — State facts showing that defendant has been rvithin the jurisdiction of the county courts at some time not more than two years before the plaint was filed, and that he is beyond the seas. Or, that upon inquiry at his usual place of abode (if he had any^, or at any other place or places where prior to the time when the plaint was Hied he might probably have been met with, he could not be found so as to be served, and that in either ease there is just ground to believe that he has gone out of the realm or otherwise absconded to avoid being served, and that service on J. N. will be effective to reach C. D. Then state deponent's means of knowledge of the facts deposed to. Sworn, &c. 3. Order for Substituted Service. It appearing to me, upon the affidavit of that it is desirable for the purposes of this suit that service of the plaint c c2 366 Cornity Court Orders, and be made upon at , and that such service be deemed good service on the defendant C. D., I do order that service of the plaint and summons in this suit be deemed good service upon the said defendant C. D. Dated this da.j of J, S., Judge. Administkation. — f Clause 1. of Sect. 1. of the Act.] By Creditor. A. B., the above-named plaintiff, states as follows : — 1. E. F. late of , was at the time of his death, and his estate still is, indebted to the plaintiff in the sum of [Jiere insert nature of debt and security if any]. 2. The said E. F. duly made his last will, dated the day of and thereof appointed C. D. executor \or devised his estate in trust, &c., or died intestate, as the case may be]. 3. The said will was duly proved by the said C. D. \or letters of administration were granted, &c.J 4. The defendant has possessed himself of the personal [and real, or the proceeds of the real] estate of the said E. F., and has not paid the plaintiff his said debt. 5. The said E. F. died on or about the day of and had his last place of abode within the jurisdiction of this court. [Omit this if C. J), has his place of abode within the jurisdiction of this court.] 6. The whole of the personal [and real] estate of the said E. F. does not exceed in amount \pr valuej the siun of 500Z. 7. The plaintiff prays that an account may be taken of the per- sonal [and real] estate of the said E. F. deceased, and that the same may be duly administered under the decree of the court, and for such further or other relief as the court may think fit. By Legatees (Specific). Omit paragraph" 1, and commence paragraph 2, E. F. late of duly made his last will, dated the • day of and thereof appointed C. D. executor " and by such will bequeathed to the plaintiff [^e state the specie legacg]." Rules in Equity. 367 For paragraph 4, substitute — The defendant is in possession of the personal estate of the said JE. F., and, inter alia, of the said [here name the subject of the specific bet/uest]. For the commencement of paragraph 7, substitute — The plaintiff prays that the defendant may be ordered to deliver to him the said [here name the subject of the specific bequest], or that, ^0. By Legatees {Pecv/niary). Omit paragraph 1, and substitute for paragraph 2, E. F., late of duly made his last will, dated the day of and thereof appointed C. D. executor, and by such will bequeathed to the plaintiff a legacy of £ ." In paragraph 4, substitute "legacy" for "debt." By Legatees ( Residuary). Omit paragraph 1, and substitute for paragraph 2, E. F., late of duly made his last will, dated the day of , and thereof appointed C. D. executor, and by such will bequeathed to the plaintiff the residue [or a part of the residue] of his personal [or and the proceeds of his real] estate. In paragraph 4, substitute " the residue [or share of residue] so bequeathed " for " said debt." Next of Kin. For paragraphs 1, 2, 3, and 4, substitute — 1. E. F. late of was at the time of his death possessed and entitled of personal estate. 2. He died on or about the day of intestate. 3. Letters of administration were duly granted to the defendant and that he has possessed himself of the personal estate of the deceased [leave out "letters of administration were duly granted to the defendant and that" if none have been granted]. 4. That the plaintiff is next of kin [or one of the next of kin] f the said E. F. 3C8 County Court Orders, and Execution of Trusts. [Clause 2 of Section 1 of the Act]. • Plaint in equity. In the county court of holden at A. B. of, &c. [address and description] - - - Plaintiff, and ' C. D. of, &c. [address and description], the or one of the cestui que trusts (see Rule 6 of 15 & 16 Vict. c. 86, s. 42.) - Defendant. A. B., the above-named plaintiff, states as follows : — 1. He is one of the trustees under a deed of settlement bearing date on or about the day of made upon the marriage of the said E. F. and G. H., the father and mother of the defendant \or a deed of assignment of the estate and effects of E. F. for the benefit of C. D. the defendant, and other the creditors of E. F.] 2; The said A. B. has taken upon himself the burden of the said trust, and is seized of or in possession of [or of the proceeds of] the lands, tenements, and hereditaments, goods and chattels], conveyed [or assigned] by the before-men- tioned deed, 3. The trust estate [or fund] does not exceed in amount [or value] the sum of £500. 4. The said C. D. claims to be entitled to a beneficial interest under the before-mentioned deed. . 5. The plaintiff is desirous to account for all the rents and profits of the said lands, tenements, and hereditaments [and the proceeds of the sale of the said or part of the said lands, tenements, and hereditaments, or goods and.chattels, or the proceeds of the sale of or part of the said goods and chattels, or the profits accruing to the plaintiff as such trustee in the execution of the said trust] ; and he prays that the court will take the accounts of the said trust, and also that the whole of said trust estate may be administered in the court for the benefit of the said C. D. the defendant, and all other persons who may be interested in such administration, in the presence of the said C. D., and such other persons so interested as the court may direct, or that the said C. D. may show good cause to the contrary. ' [N. B, — Where the suit is by a cestui-que trust the plaint may he modelled, rw\\,&\xxs mutandis, on the plaint hy a legatee, and if breach of trust is alleged hy may of wilful default or otherwise, the plaints shall shortly state the circumstances and pray for consequential Rules in Equity. 369 FoHBCLOS0BB. — [Clause 3 of Section 1 of the Act.] A. B., the above-named plaintiff, states as follows : — 1. By an indenture of mortgage bearing date on or about the day of 18 , a freehold [copy- hold or leasehold] cottage, with the garden and appurtenances, situated within the jurisdiction of this court, were conveyed [or assigned] by the defendant to him the plaintiff, his heirs {or executors, adminis- trators,] and assigns, for securing the principal sum of £ together with interest thereon after the rate of £5 per centum per annum, subject to redemption upon payment by the said defendant of the said principal and interest at a day long since past. , 2. There is now due from the defendant to the plaintiff the sum of £ for principal and interest on the said mortgage. 3. The plaintiff prays that the court will order the defendant to pay him the said sum of £ with such further interest as may accrue between the filing of the plaint and the day of payment, and also the costs of this suit, on some day to be named by the court, and in default that the equity of redemption of the said mortg-aged premises may be foreclosed, or that the said premises may be sold, and the proceeds applied in and towards the payment of the said principal, interest, and costs ; and he prays that for that purpose all proper directions may be given and account taken by the court. Redemption. Transpose parties and also the facts in paragraph 1. For paragraph 2, substitute — 2. There is now due from the plaintiff to the defendant, for prin- cipal and interest on the said mortgage, the sum of £ , which the plaintiff is ready and willing to pay to the defendant, of which the defendant before filing this plaint had notice. For paragraph 3, substitute — The defendant prays that he may redeem the said premises, and that the defendant may be ordered to reconvey [or re-assign] the same to him upon payment of the said sum of £ and interest, with such costs as the court may order (if any), upon a day to be named by the court, and that the court will give all proper directions for the preparation and execution of such re-conveyance [or assign- ment] and doing such other acts as may be necessary to put him into possession of the said premises, freed from the said mortgage. 370 County Court Orders, and 7- Specifio Perfobmance.— [Section 9 of 30 & 31 Vict. c. 142.] A. B., the above-named plaintiff, states as followB: — 1. By an agreement dated the day of _ , and signed by the above-named defendant C. D., he the said C. D. contracted to' buy of [or sell to] him certain property, therein described and referred to, for the sum of £ 2. He has applied to the said C. D. specifically to perform the said agreement on his part, but that he has not done so. 3. The said A. B. has been and still is ready and wUling specifi- cally to perform the agreement on his part, of which the said C. J). has had notice. 4. The plaintiiF prays that the court will order the said A. B. spe- cifically to perform the said agreement, and to do all acts necessary to put the said A. B. in full possession of the said property [or to accept a conveyance and possession of the said property], and to pay the costs of the suit. [N.B. — In suit for delivery up to be cancelled of any agreement, omit paragraphs 2 and 3, and substitute a paragraph stating gene- rally the grounds for requiring the agreement to he delivered vp to be cancelled, such as that the pkiintiff signed it by mistake, nnder dis- tress, or by the fraud of the defendant, and alter the prayer accord- ing to the' relief sought. 1 Under Trustee Relief Act. — [Clause 5 of Section 1 of the Act.] Showeth, 1. That by a deed of settlement bearing date the day of made upon the marriage of C. D. with E. F. certain freehold property in the settlement mentioned was conveyed to [or ttat C. D. deceased, by his will bearing date the day of , and proved on the day of , by your petitioner and O. H. in the Prerogative Court of the Arch- bishop of Canterbury, certain freehold property in the will mentioned was devised to] the petitioner, together with O. H., upon certain trusts inter alia [here set out the clause or portion of the trust deed or mill upon which the order of the court is required], 2. That the said G. H. died on or about the day of , leaving the petitioner surving trustee. 3. That disputes and doubts have arisen under the clause before set out, as to whether [here set out the specie question upon which the opinion, advice, or direction of the court is required]. Rules in Equity. 371 4. That the trust estate [or fund] to which this proceeding relates does not exceed in value the sum of 500/. 5. That the persons interested in this application are /. J, of, &c., [address and description\, K. L. of, &c. 6. Your petitioner prays the court to declare its opinion, advice, or direction whether [here state specific question tvliich the court is asked to determine]. N.B.—By Stat. 23 S^ 24 Vict. c. 38, s. 9, this must be signed by counsel. 9. Under Trustee Acts. Showeth, 1. That C. D. deceased, by his will bearing date the day of , and proved on the day of , by your petitioner and 6. H. in the Prerogative Court of the Arch- bishop of Canterbury, certain freehold property in the will men- tioned was devised to [or that by deed of settlement bearing date the day of , made upon the marriage of C D. with E. F. certain freehold property in the settlement mentioned was conveyed to] the petitioner, together with O. H. upon certain trusts. 2. That the said. G. H. died on about the day of , leaving the petitioner surviving trustee. 3. That the said trusts are still unexecuted, and that the petitioner is unable by reason of having left the neighbourhood [or his bodily infirmity, or any cause for relimivishivg trust] further to execute the said trusts ; that it is for the advantage of the parties beneficially interested' in the due execution of the trust that new trustees be appointed by the court in the place of the petitioner. 4. That and of, &c., [address and description] are proper persons to appoint as such trustees. 5. That /. J. of, &c., [address and description], and L. M, of, &c., ^address and description], are the persons beneficially interested in the said trust. 6. Your petitioner prays that the said and , or some other persons to be named by the court,- be appointed trus- tees in his place and stead, and that the cost of the proceeding be ordered to be paid out of the trust fund, and to give such dh-ections as may be necessary for executing such order. 373 County Court Orders, and 10. Maintenance and Advancement op Infants. [Clause 6, of Section 1, of the Acts.] Showeth, 1. That he is guardian [or trustee] of C. D., an infant, and that by the will of E. F. a sum of £ was bequeathed to the peti- tioner, upon trust to apply the income thereof to the maintenance and education of the said C. D. during his minority, and to pay the said principal sum of £ to the said C. D. upon his attaining the age of twenty -one years. 2. That the said C. D. is now of the age of fourteen years or thereabouts, and is now resident within the jurisdiction of this court, and the petitioner has heretofore spent the whole of the accruing interest upon his maintenance and education. 3. That in the opinion of your petitioner it would be greatly to the interest and advancement of the said C. D. H a. sum of £ , part of the said principal money of £ , was now expended by the petitioner in payment to G. H. of , saddler, as a premium to the said G. H. to take and receive the said C. D. as his indoor apprentice. 4. The petitioner prays that he may direct him to use and appro- priate the said sum of £ , part of the said principal trust money or sum of £ for the apprenticeship of the said infant accordingly. 11. Partnership. — [Clause 7, of Section I, of the Act.] A. B., the above-named plaintiff, states as follows : — 1. He and the said C. D. the defendant have been for the space of years \or months] last past carrying on business, together at within the jurisdiction of this court, under certain articles of partnership in writing, signed by them respectively, [or under, a certain deed sealed and executed by them respectively, or under a verbal agreement between them, the said plaintiff and defendant.] 2. Divers disputes and differences have arisen between the plaintiff and defendant as such partners, whereby it has become impossible to cariy on the said business in partnership with advantage to the partners. 3- The whole of the property, stock, and credits of such partner- ship do not exceed in value the sum of 600^. Rules in Equity. 373 4. The plaintiff desires to have the said partnership dissolved, and he is ready and willing to bear his share of the debts and obligations of the partnership according to the terms of the said articles [deed or agreement]. 5. The plaintiff prays the court to decree a dissolution of the said partnership, and that the accounts of the said partnership trading may be taken by the court, and the assets thereof realized, and that each party may be ordered to pay into court any balance due from him upon such partnership account, and that the debts and liabilities of the said partnership may be paid and discharged and that the costs of the suit may be paid out of the partnership assets, and that any balance remaining of such assets, after such payment and discbarge, and the payment of the said costs, may be divided between the {ilaintiff and defendant, according to the terms of the said articles deed or agreement], or that if the said assets shall prove insufficient he the plaintiff and the said defendant may be ordered to contribute in such proportions as shall be just to a fund to be raised for the pay- ment of ana discharge of such debts, liabilities, and costs. And to give such other relief as the court shall think St. [N.B. — In suits for minding-up of any partnership omit the prayer for dissolution ; hit instead thereof insert a parc^graph stating the fact of the partnership having been dissolved.] 12. < Notice of Application for Obder in the Nature op Injunction. [Clause 8, of Section 1, of the Act.] Take notice that I A, B. intend to apply at the sitting of the court as aforesaid on the day of [or to Mr. Judge at his sittings, or at on the day of , as the case may he] for an order in the nature of an injunction to restrain C. D. from further prosecuting an action which he has commenced against me in the Exchequer of Pleas to recover damages for the breach of the contract for the specific performance of which this suit was commenced \or to restram him from receiving and giving discharges for any of the debts due to the partnership in the matter of the partnership, between us for the winding up of which the suit was commenced, or from digging the tiuf from the land which was agreed to be sold by him to me by the agreement the specific performance of which this suit is com- menced to enforce, or as the case may be]. Dated this day of , 186 . A.B. To C. B. [N.B. — Where the order in the nature of an injunction is to be applied for against a party whose name and address does not appear upon any proceeding already filed in this suit, it viust be stated in full to enable the high bailiff to serve the notice.] 374 County Court Orders, and 13. Summons on Plaint. "So. of plaint in equity. In the county court of , holden at {Seal.) A. B. [Address, description] plaintiff, and C. D. [Address, descHption] defendant. You are hereby summoned to appear at a county court, to be holden at , on the day of , at the hour of in the noon, to show cause why the relief prayed for in the plaint hereunto annexed should not be granted. Dated this day of , 186 . Registrar. To C. 2)., defendant [or one of the defendants]. N.B. — If you do not attend either in person or by your attorney at the time and' place above mentioned, such decree or order will be made and proceedings taken as the judge may think just and expedient. \ EndorseTnent on Summons]. If you desire to lessen the amount of costs which you may be put to, you should follow such of these directions as may apply. If you desire to admit the truth of the allegations in the plaint, and to submit to the judgment of the court, you may, at any time before the return day of the original summons, appear before the registrar, and in his presence sign an admission of the truth of the plaint, and a consent to abide by and perform any decree or order the court may make. If you desire to disclaim any interest in the sulgect matter of the suit, or if you'intend at the hearing to deny any of the statements in the plaint, or raise any question of law upon such statement without admitting the truth thereof, you may deliver to the registrar, within eight days after the service of the summons upon you, a statement signed by you to that effect. If you mtend to rely on a set-off, infancy, coverture, a Statute of Limitations, or a dischage under a Bankrupt or an Insolvent Act, as a defence, you must give notice of such special defence to the registrar five days before the day of hearing, and such notice must contain the particulars required by " The County Court Rules ;" and you must deliver to the registrar as many copies of such notice as there are plaintiffs, and an additional copy for the use of the court. If your defence be a set-off, you must, with each notice thereof, deliver to the registrar a statement of the particulars thereof. Summonses for witnesses and for the production of documents will be issued upon application at the office of the registrar of the court upon payment of the proper fee. Rules in Equity. 375: 14. Notice to Admit and Inspect. Take notice that the plaintifP \or defendant or petitioner] proposes to adduce in evidence on the trial in this cause {or matter] the several documents hereunder specified], and that the same may he inspected by the defendant [or plaintiff or petitioner], his attorney or agent, at , on , Detween the hours of ; and the defendant \or plaintiff, or petitioner] is hereby rec^uired, within forty-eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were re- spectively written, signed, or executed as thejr purport respectively to have been ; that such as are specified as copies are true copies ; and that such documents as are stated to have been served, sent, or deli- vered, were so served, sent, or delivered respectively, saving aU just exceptions to the admissibility of all such documents as evidence on such trial. Dated the To E. F., attorney for day of G. H., attorney for Originals. Description of the Documents. Date. Copies. Description of Docaments. Original or Duplicate served, sent, or delivered, when, how, and by whom. 15. Application fob Summons to Pkoduce. To the registrar of the above court. I, A. B. \pr C. D.I hereby apply for a summons to issue, calling upon : day 01 following documents , of - - - - ^^^ attend to court upon the , and then and there to produce the A. B. [or C. D.] 376^ County Court Orders, and Obiginals. Description of the Documents. Date. Copies. Description of Documents. Dates. Original orDnplicate served, sent, or delivered, when, how, and by whom. 16. Summons to Witness. No of pkint in equity. In the County Court of holden at In the suit of ^. B. v. C. D. You'are hereby required to attend at [court house in ], on " ,the day of ,186 , at the hour of in the noon, to give evidence in the above cause on behalf of the [plaintiff or defendant, as the ease may be'], and then and there to have and produce [the several documents hereunder specified], and all other books, papers, writings, and other documents relating to the said action, which may be in your custody, possession, or power. In default of your attendance you will be liable to a penalty of 10?. Dated this day of , 186. . Registrar. To [Here insert list of documents mentioned in the application Jor the summons.] Rules in Equity. 377 17. Defendant's Admission. I, the undersigned defendant, admit the truth of the allegations in the plaint, and hereby submit to the judgment of the court thereon. (Signed) C. D., defendant. Signed in the presence of [This paper, marked (A.) is the paper referred to in the annexed affidavit.] 18. Affidavit of Signature to Defendant's Admission.' I, of , .gentleman, an attorney of Her Majesty's court of , at "Westminster, make oath and say, that I was present on the day of , one thou- sand eight hundred and sixty , and did see the above-named C. D., the defendant, sign the statement hereunto annexed, marked with the letter A., and that the name set to the said statement is in the handwriting of the defendant, and that the name set to the said statement as the witness attesting the same is in my handwriting. 19. Defendant's Statements. I, the undersigned defendant [or one of the defendants] disclaim all interest under the will of the said E. F. in the plaint named [or as heir-at-law, of, or as next of kin, or one of the next of kin of E. F. deceased in the said plaint named]. Or, I the undersigned defendant state, that I admit [or deny \Tiere repeat in the language of the plaint the statements admitted or denied.] Or, I the undersigned defendant submit that upon the facts stated , in the plaint it does not appear that there is any agreement which can be legally enforced [or that it appears upon the said plaint that I am jointly liable with one E. F., who is not a party to the suit, and not severally liable as by the plaint appears, or that it appears by the said plaint that O. H. should have been a joint plaintiiF with the said A. B. in the said suit, or as the case may le]. Or that the plaintiif has conveyed [or assigned] his interest in the said mortgage \pr equity of redemption] to one I. J. or that I have conveyed or assigned to U. L. by way of further charge for securing i 378; County Court Orders, and the sum of £ , the equity of redemption in the propety sought by the suit to be foreclosed]. Or that since the dissolution of the partnership the plaintiff has executed a deed under seal, whereby the plaintiff covenants to dis- charge all debts and. liabilities of the partnership, and generally to release me from all claims and liabilities either by or to himself and others in respect of the said partnership trading \or ag the case may be.l (Signed) C. D., Defendant. Where filed by attorney add — This statement was filed by of ' Attorney for the defendant. 20. Decretal Obdeb. — Administration Suit. - It is ordered that the following accounts and inquiries be taken and made ; that is to say, In Creditor's Suit. 1. That an account be taken of what is due to the plaintiff and all other the creditors of the deceased. • In Suits hy Legatees. An account be taken of the legacies given by the testator's will. In Suits by Next of Kin. An inquiry be made and account taken of what, or of what share, if any, the plaintiff is entitled to as next of kin \or one of the next of kin] of the intestate. ^After the first paragraph, the decretal order nAll, where neces- sary, order, %n a creditor's suit, inquiry and accounts for legatees, devisees, heirs-at-lam, and next of kin. In suits by claimants other than creditors, after the first paragraph in all cases an order to inquire and take an account of' creditors mill follow) the first para-: graph, and such of the others as may be necessary mill follow, omitting the ^rst formal words. The form is continued as in a creditor' ssmt.l Rules in Equity. 379 3. An account of the funeral and testamentary expenses. 4. An account of the personal estate of the deceased come to the hands of the defendant, or to the hands of any other person hy his order or for his use. 5. An inquiry what part (if anv) of the personal estate of the deceased are outstanding and undisposed of. 6. And it is further ordered, that the defendant do, on or before the day of next, pay into court all sums of money which shall be found to have come to his hands, or to the hands of any person by his order or to his use. 7. And that if the registrar shall find it necessary for carrying out the objects of the suit to sell any part of the personal estate of the deceased, that the same be sold accordingly. 8. And that Mr. be receiver in the suit [or pro- ceeding], and receive and get in all outstanding debts and outstand- ing personal estate of the deceased, and pay the same into the hands of the registrar [and shall give security by bond for the due per- formance of his duties to the amount of £ .J 9. And it is further ordered, that if the personal estate of the de- ceased be found insufficient for carrying out the objects of the suit, then the following further inquiries be made, and accounts taken ; that is to say, 10. That an inquiry be made what real estate the deceased was seised of or entitled to at the time of his death. 11. What are the incumbrances (if any) affecting the real estate of the deceased, or any part thereof. 12. An account, so far as possible, of what is due to the several incumbrancers, and to include a statement of the priorities of such of the inevimbrancers as shall consent to the sale hereinafter directed. 13. And that the real estate of the deceased, or so much thereof as shall be necessary to make up the fund in court sufficient to carry out the object of the suit, be sold, with the approbation of the judge, free from incumbrances (if any) of such incumbrancers as shall consent to the sale, and subject to the incumbrances of such of them as shall not consent. 14. And it is ordered, that shall have the conduct of the sale of the real estate, and shall prepare the condi- tions and contracts of sale, and the abstract of title, subject to the approval of the registrar, and that in case any doubt or difficulty shall arise the papers shall, with the like approval, be submitted to , Esquire, to settle. 15. And it is further ordered, that, for the purpose of the inquiries herein-before directed, the registrar shall advertise in the newspapers according to the practice of the court, or shall make such inquiries in any other way which shall appear to the registrar to give the most useful publicity to such inquiries. 16. And it is ordered, that the above inquiries and accounts be D D 380 County Court Orders, and made and taken, and that all other acts ordered to be done be com- pleted, before the day of and that the regis- trar do certify the result of the inquiries and the accounts, and that all other acts ordered are completed, and have his certificate in that behalf ready for the inspection of the parties on the day of 17. And lastly it is ordered, that this suit [or matter] stand adjourned for making* a final decree to the day oi [Such part only of this decretal order is to he used as is applicable to the particular case.] 21. FoHM OF Order under Order VI. Hule 14, or under Order XII. It appearing to me that it will be for the benefit of the estate that the remaming outstanding debts be sold, I do order that the debts now due to the estate or £!. P., the testator [or intestate] in the plaint in this suit mentioned, be sold as soon as conveniently may be by [the receiver] by private contract [or public auction] for the highest price that can be obtained for the same. Bated this day of J. S., Judge. 22. Form op Order under Order VI., Rule 14, or under Order XII. It appearing to me that it is necessary for carrying out the objects of this suit that the real estate [or part of the real estate] of the deceased be sold, I do order that all that freehold [copyhold or lease- hold] messuage or tenement, &c., [setting out parcels as in last con- veyanee\ being the real [or part of the real] estate of E. F., late of in the county of deceased, the testator [or intestate] in the plaint in the suit mentioned, be offered for sale by public auction at the Hotel at by Mr. auctioneer, and be then and there sold [pro- vided the sum bid for the same be not less than £ or] to the highest bidder without reserve. Dated this day of J. S., Judge. Rules in Equity. 381 23. DECRKT4.L Order for Rbference in Foreclosure Suit BY Legal Mortgage. It is ordered that it be referred to the registrar to take an account of what is due to the plaintiff for principal and interest on the mort- gage mentioned in the plaint (making allowance on one side or the other for any rents or profits received by the plaintiff and for any sums of money lawfully expended by the plaintiff about the mort- gaged premises), and to tax the plaintiff's costs of this suit, and that the registrar do certify to the court, on the day of what he shall find to be due for principal and interest as aforesaid and for costs : And upon the defendant paying into court what shall be certified to be due to the plaintiff for principal and interest as aforesaid, together with the said costs, withm six months after the registrar shall have presented his certificate, it is ordered that the Elaintiff do reconvey the said mortgaged premises, free and clear rom all incumbrances done by him, or any claiming by, from, or under him, and do deliver up to the registrar all deeds and writings in his custody or power relating thereto, and that upon such recon- veyance being made, and deeds and writings being delivered up, the registrar shau pay out to the plaintiff the said sum so paid in as aforesaid for principal, interest, and costs ; but in default of the defendant paying into court such principal, interest, and costs as aforesaid by the time aforesaid, then it is ordered that the defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the said premises, and the registrar is to settle the conveyance if the parties differ about the same ; and it is further ordered, that after the expiration of the said six months, the plaintiff shall be at Uberty to apply to the court for a final decree for the foreclosure of the said mortgage. [N.B. — Where the state of the account is ascertained at the Jirst hearing, instead of the order of reference to the registrar, begin. It is declared that the sum of f is now due to the plaintiff for principal and interest on the mortgage mentioned in the plaint, and it is ordered that the registrar do tax the plaintiff's costs of this suit, and that] 24. Decretal Order of Sale in a Suit bt a Legal or Equitable Mortgagee or Person entitled to a Lien. It is ordered that it be referred to the re^trar to take an account of what is due to the plaintiff for principal and interest on the D 2 382 County Court Orders, and mortgage {or equitable mortgage or lien] mentioned in the plaint, and to tax the plaintiff's costs of this suit, and that the registrar do certify to the court on the day of what he shall find to be due for principal and interest as afore- said, and for costs : and upon the defendant paying into court what shall be certified to be due to the plaintiff for principal and interest as aforesaid, together with the said costs, withm six months after the reg^istrar shall have presented his certificate, it is ordered that the plaintiff [do re-convey the said mortgaged premises free and clear ftom all incumbrances done by him, or any claiming by, from, or under him,] and do deliver up to the registrar all deeds and writings in his custody or power relating thereto, and that upon such re-conveyance being made, and deeds and writings bemg delivered up, the registrar shall pay out to the plaintiff the said sum 80 paid in as aforesaid for principal, interest, and costs ; but in default of the defendant paying into court such principal, interest, and costs as aforesaid by the time aforesaid, then it is ordered that the said mortgaged premises \or the premises subject to the said equitable mortagee or lien] be sold with the approbation of the registrar : and it is ordered that the money to arise by such sale be paid into court, to the end that the same may be duly applied in payment of what shall be found due to the plaintiff for principal, interest, and costs as aforesaid, and that the balance (if any) shall be paid to the de- fendant. 25. Decretal Oroer. — Dissolution of Partnership, It is declared that the partnership in the plaint mentioned be- tween the plaintiff and defendant ought to stand dissolved as from the day of , and it is ordered that the dissolution thereof as from that day be advertised in the London Gazette, &:c. And it is ordered that be the receiver of the partner- ship estate and effects in this suit, and do get in all the outstanding book debts and claims of the partnership. And it is ordered that the following accounts be taken : — 1 . An account of the credits, property, and effects now belonging to the said partnership. 2. An account of the debts and liabilities of the said partnership. 3. An account of all dealings and transactions between the plaintiff Wid defendant from the foot of the settled account exhibited in this suit Mpd marked (A.), and not disturbing any subsequent settled accounts. And it is ordered that the goodwill of the business heretofore carried on by the plaintiff and defendant as in the plaint mentioned, Rules in Equity. 383 and the stock-in-trade, be sold on the premises, and that the registrar may, on the application of any of the parties, fix a reserved bidding for i^l or any ot the lots at such sale, and that either of the parties are to be at liberty to bid at the sale. And it is ordered that the above accounts be taken, and all the other acts required to be done be completed, before the day of , and that the registrar do certify the result of the accounts, and that all other acts are completed, and have his certificate in that behalf ready for the inspection of the parties on the day of And lastly it is ordered that this suit stand adjourned for making a final decree to the day of 26. Final Decree fob Fobeclostjkb. Whereas it appears to the court that the defendant has not paid into court the sum which was on the day of last certified by the registrar to be due to the plaintiff for principal and interest upon the mortgage in the plaint mentioned, and for costs, pursuant to the decretal order made in this suit on the day of last, and that the period of six months has elapsed since the said day of . It is ordered that the defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the said mortgaged premises. 27. Partnership. Final Decree. It is ordered that the fund now in court, amounting to the sum jj£ £ be applied as follows : — 1 In payment of the debts due by the partnership set forth in the regi'stra/s certificate, amounting in the whole to £ 2 In navment of the costs of all parties in this suit, amounting to z. XII vo^i ^These costs must he ascertained before the decree u drawn up.] 384 County Court Orders, and 3. In payment of the sum of £ to the plaintiff as his share of the partnership assets, and of the sum of £ > being the residue of the said sum of £ now in court to the defendant as his share of the partnership assets. [Or, and that the remainder of the said sum of £ be paid to the said plaintiff [or defendant] in part payment of the sum of £ certified to be due to him in respect of the partner- ship accounts. And that the defendent [or plaintiff! do, on or before the day of pay to the plaintiff [or defendant] the sum of £ being the balance of the said sum of £ due to him which will then remain due]. 28. Notice of Decketal Order to absent Partt. Take notice that on the day of the decree of which a copy is hereunto annexed was made in this cause, and that from the. service of this notice you will be bound by the proceedings in the above cause in the same manner as if you had been originally made a party to the suit, and that you may attend the proceedings under the said decretal order, and that you may apply to the court to add to the decretal order. Dated this day of 186 , Begistrar. To 29. Notice to Creditor to prove his Ct.AlM. You are hereby required to prove the claim sent in by you against the estate of A. B. deceased, by filing such affidavit as you may be advised in support thereof, and by giving notice thereof to me, on or before the day of next, and by attending at my office on the day of ^.^^ J ?* o'clock in the noon, being the tune appointed for adjudicating on the claim. Dated this day of 186 Registrar. To Rules in Equity. 385 30. Notice to Ckbditor of Allowance op Claim. The claim sent in by you against the estate of A. B. deceased, has been allowed at the sum of , with interest thereon at per cent per annum, from the day of 186 , and for costs. [If part only allowed add], if you claim to have a larger sum aUowed, you are hereby required to prove such further claim, by filing such affidavit as you may be advised in support thereof, and by giving notice thereof to me on or before the day of next, and by attending at my office on the day of 186 , at o'clock in the noon. Dated this day of 186 Registrar. 31. Eegistbab's Certificate. In obedience to the decretal order of this court made in the above suit, I hereby certify that the result of the accounts and inquiries [or of the sale and apportionment] which have been taken and made in pursuance of the made this dated the day of 186 , is as follows. The Plaintiffs and defendants have attended by themselves or by their respective attomies. Notice of the said Decretal Order. Notice of the said decretal order of the day of 186 , has been served upon . The persons so served mclude all the now hving, and the personal representatives of such of them as are dead, except such as are parties to this suit, and except herein-after named • . , Service of notice of the said decretal order upon the said was dispensed with. Personal Estate Account. The defendant tlie executor [or administrator] ^£ the testator [or intestate] named m the said 386 County Court Orders, and have received personal estate to the amount of £ , and they have paid or are entitled to be allowed on account thereof sums to the amount of £ , leaving a balance due from \pr to] them of £ on that account. References to Account. The particulars of the above receipts and payments appear in the account marked A^ verified by the affidavit of the said de- fendant filed the day of and the account marked B. verified by the affidavit of filed the day of and which accounts are to be filed with this certificate. Variation from Accounts. Except that in addition to the sums appearing in such account to have been received, the said defendant [or plaintiff] is [or are] charged with the following sums, (that is to say,) £ and except that of the items of disbursements in the said account I have disallowed those numbered , and I have deducted from the item numbered the sum of £ and from the item numbered the sum of £ and in addition to the disbursements appearing in such account the said defendant ha paid and been allowed the sum of £ Special Allowances in Accounts. The payments allowed to the said defendant [or plaintiff] in the said account include the sum of £ , paid into court to the credit of this cause, on the day of 186 . Reference to Transcript of Account. The before-mentioned account marked A. has been altered, and the account marked A. B., and which is also to be filed with the certifi- cate, is a transcript of the said account marked A. as altered and No Personal Estate received. The defendant , the executor [or administrator ] of the testator [or intestate] named in the said have not, nor hath any or either of them, or any person or persons by their or any or either of their order, or for their or any or either of their use, received any part of the personal estate of the said testator [or in- tf state]. Rules in Equity. 387 Funeral Expenses. The funeral expenses of the testator [or intestate], amounting to the sum of _£ , have been paid and are allowed the defendant \or plaintiff ] the executor [or administrator] of the said testator [or intestate] in the said account of personal estate [herein- after mentioned]. Dehts. The debts of the testator [or intestate, including the plaintiff's] which have been allowed are set forth in the schedule hereto, and with the interest thereon, and costs mentioned in the said schedule, are due to the plaintiff and the other persons named therein, and amount altogether to £ . No other person has been allowed, or come in and proved, any debt against the estate of the said testator [or intestate], and the time fixed by advertisement for that purpose has expired. Such of the said debts as are specialty are set forth in the first part of the said schedule, and amount to £ ; such as are simple contract are set forth in the second part of said schedule, and amount to £ Interest on Dehts. The interest on such debts is computed down to the date of this cei-tiflcate, and after the rate of il. per centum per annum, from the day of 186 , the date of the said decretal order, unless otherwise specified in the said schedule. ■ Legacies and Annuities. The l^acies given by the testator, other than annuities, are set forth in iSe first part of the schedule hereto, and, with the interest therein mentioned, remain due to the persons therem named, and amount altogether to £ • . , , j ..t. The annuities given by the testator, with the arrears due thereon, are set forth in the second part of the said schedule, such arrears amount to £ Interest on Legacies. The interest on such legacies is computed down to the date of this certificate, and after the rate of il. per centum per annum, from ^jjg day of , 186 , the end of one year after the testator's death, unless otherwise specified in the said schedule. The arrears of the annuities are computed to the date of this 388 County Court Orders, and certificate, and from the testator's death, unless otherwise specified in the said schedule. Outstanding Estate. The personal estate of the said testator [or intestate] [not specifi- cally bequeathed] outstanding or undisposed of consists of the particu- lars set forth in the schedule hereto. Meal Estate. The real estate which the said testator [or intestate] was seised of or entitled to consists of the particulars set forth in the schedule hereto. Incumbrances on Heal Estate. The incumbrances afiecting the said testator's [or intestate's] real estate are specified in the schedule hereto. Bents and Profits Account. The defendants [or plaintifis ] the trustee named in the said decretal order have received rents and profits of the testator's real estate to the amount of £ ' , and they have paid or are entitled to be allowed on account thereof sums to the amount of £ , leaving a balance due from [or to] them of £ , on that account. No Bents and Profits received. The defendants [or plaintiff ] the trustees named in the said decretal order have not, nor hath any or either of them or any person or persons by their or any or either of their order, or for their or any or either of their use, received any sum or sums of money on account of the rents and profits of the testator's [or intes- tate's] real estate. Next of Kin. The next of kin, according to the statutes for the distribution of the effects of mtestates, of the intestate named in the said BmIbs in Equity. 389 living at the time of his death were , of whom the said have since died. The legal personal representative of the said The legal personal representative of the said The legal personal representative of the said Dated this day of Kegistrar. 32. NOTICE THAT RBGISTRAS's CERTIFICATE MAY BE INSPECTED. Take notice that the certificate of the result of the inquiries made and accounts taken by me under the decretal order of this court made on the day of , in this cause lies in my office and can be inspected by you up to and inclusive of the day of [here insert the day htfore the cause is to be further heard]. Registrar. To ^ 3-3. BOND TO BE GIVEN BY RECEIVER. Know all men by these presents, that we, A. B. Of, &c., and C D. of, &c., and E. F. of, &c., are jointly and severally held and firmly bound to G. H., registrar of the county court of , holden at , in £ , to be paid to the said G. H., or his cer- tain attorney, executors, administrators, or assigns. For which pay- ment to be made we bind ourselves, and each and every of us, in the whole, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , one thousand eight hundred and And whereas a plaint in equity has been filed in this court by A. B. against C. D. for the purpose of \here insert ohject of suit']. And whereas the said A. B. has been appointed, by order of the above-mentioned court, to receive the rents and profits of the real [or freehold or copyhold or leasehold] estate [or estates] [and to get in the outstanding persona! estate] of CD., the testator in the said plaint named. Now the condition of this obligation is such, that if the above - bounden A. B. do and shall duly account for all and every the sum and sums of money which he shall so receive on account of the rents and profits of the real estates, and in respect of the personal estate of the said C. D. [or as may be] at such periods as the said court shall appoint, and do and shall duly pay the balances which 390 County Court Orders, and shall from time to time be certified to be due from him as the said court hath directed or shall hereafter direst, then this obligation shall be void and of none effect, otherwise shall remain in full force and virtue. A. B. (i,.s.) C. D. (L.S.) Signed, sealed, and delivered by the above- bounden in the presence of Note — If deposit of money he mads the memorandum thereof should follow the terms of the condition of the bond, and mill not require a stamp. 34 WARRANT OP BXBCUTION ON A DEORBB OR ORDER OF THE COURT FOR THE PAYMENT OF MONET. Whereas on the day of 186 , this court did, in the matter of this suit, decree \or order] that A. B. \or C. B.] should pay to C. D. {or A. B.I \or should pay into court] the sum or £ : and whereas a copy of such decree \or order] was duly served upon A. B. \or C. D.\, as the case may be : and whereas the said A. B. [or C. B.\ has not paid the said sum of money according to the said decree \or order] ; these are therefore, to require and order you forthwith to make and levy, by distress and sale of the goods and chattels of the said A. B. [or C. 2J.], wheresoever they may be found within the district of this court, (except the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of live pounds,) the sum stated at the foot of this warrant, being the amount directed to he paid by the said decree [or order], including the costs of this execution, and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, t»romis8ory notes, bonds, specialties, or securities for money, of A .B. or C, B.'i which may there be found, or such part or so much thereof as may be suflScient to satisfy this execution, and the costs of making and executing the same, and to pay what you shall have so levied to the registrar of this court, and make retura of what you have done under this warrant immediately upon the execution thereof. Given under the seal of the court, this day of 186. By the court. ' Registrar. To the High Bailiff of the said court, and others the Bailiffs thereof. Amount ordered to be paid ... Costs . - . - - . - Total amount to be levied £ Rules in Equity. 391 35 WAKRASTT OF ASSISTANCE. "Whereas, according to the tenor and true meaning of a decree [or an order] bearing date the day of , 186 , made in the matter of this suit, the said defendant C. B. was ordered to deliver up possession to A. B. in the said order named of all that, &c. \us in order] : and whereas a copy of such decree [or order] was duly served upon the said C. D., yet nevertheless he the said C. D. and other ill-disposed persons, his accomplices, have refused io pay obedience thereto, and detain and keep the possession of the said house [or tenement and premises] : these are, therefore, to authorize and require you to forthwith enter into and upon the said messuage [or tenement and premises], and that you do remove, eject, and expel the said C. D. , his tenants, servants, and accomplices, each and every of them, out of and from the said messuage [or tenement and pre- mises], and every part and parcel thereof, and that you do place and put the said A. B. and his assigns into the full, peaceable, and quiet possession thereof, and defend and keep him and his said assigns in such peaceable and quiet possession when and as often as any inter- ruption may or shall from time to time be given or offered to them or any of them, according to the true intent and meaning of the said order ; and herein you are not in anywise to fail. Givenunderthe seal ofthe court, this day of ,186 . By the court. Registrar. To the High Bailiff of the said court, and others the Bailiffe thereof. 36. Warbant of Possession. Whereas, on the day of 186 , this court did in the matter of this suit, decree, ior order] that you, the high bailiff of this court, should [or that A. B. should] take possession of the goods and chattels of E. F. deceased, in the said suit mentioned, and which at the date of the said order were in the possession of the defendant [and sell and convert the same into money or keep and hold the same to abide the further order of the court, as the case ■niese'are therefore by virtue of the said decree [or order] and the statute in such case made and provided to will and require, authorize and empower, you and eveiy one of you to whom this warrant is directea forthwith to enter into and upon the house and houses of the said CD., and also in all other place or places belonging to 392 County Court Orders, and the 8aid C. D. where any of the goods or chattels, part of the estate of the said E. F., deceased, are suspected to be ; and there to seize all the goods and chattels whatsoever belonging to the estate of the said E. P. deceased. And in case of resistance, or of not having the key or keys of any door, or loek of any premises belonging to the said (J. D., where any of the goods or chattels, part of the estate of the said E. P. are sus- pected to be, you shall break open or cause the same to be broken open, for the better execution of this warant. Griven under the seal of the court this day of , 186 . By the court. Registrar. To the High Bailiff of the said Court, and others the Bailiffs thereof. 37. Notice of Change of Attohnbt. To the Registrar of the Court. Take notice that I, A. B. [or C. D.] have hitherto employed as my attorney G. H. oi , in the above-mentioned cause, but that I have ceased to employ him, and that my present attomer is /. K. of A. B. [or C. D.'\ 38. Ordeb of Revivor. Upon application of [here state hy whom the application is Tnade and the events which have happened rendering it necessary to apply], I do order that this suit stand revived and be in the same plight and condition as the same was in at the time of the said abatement. Dated this day of J. S., Judge. Rules in Equity. 3Q3 39. Order of Payment op Legacy iirro Court op Chancery. Whereas it has been found by this court by its decree of thej •i*y . , in this suit (or matter] that K. L. of *v, -J E- X •' ^ entitled to the sum of ; and whereas tne said K. L. is an infant [or absent beyond seas], and it appearing a *^i.?°'^ *^** '* ^ desirable that, under the power given to it by the hfth section of the Act of parliament passed m the twenty-eighth mdtwenty-mnth years of Her Majesty's reign, chapter ninety-nine, C. U the defendant m this suit, [or matter, as the ease may beS should be ordered to pay such sum of money to the accountant- general of the court of Chancery, in accordance with the provisions ot section thirty-two of an Act passed in the session of parliament if rJ!?- *^^ thirty-sixth year of the reign of his Majesty King George the Third, chapter flfty-two, it is ordered that the said [ ] do pay the same accordingly, and do within days produce to the registrar of this court the certificate of the said accountant- general of the payment to him of such money. By the court. Registrar. [Endorsement on last Order.] N.B. — Your attention is drawn to the following provisions of the Act 36 Geo. 3, c. 52, and to the rule of this court. Any legacy or sum of money to which any person who is an infant or absent beyond seas may be found or declared entitled by any county court in any suit or matter under this Act may be ordered by the court to be paid to the accountant-general of the court of Chan- cery, in accordance with the provisions of section thirty-two of an Act passed in the session of parliament held in the thirty-sixth year of the reign of his Majesty King George the Third, chapter flfty- two ; and the person ordered to pay the same shall, within such time as the court shall direct, produce to the registrar of the court the cer- tificate of the accountant-general of the payment of such money ; and if default be made in such payment the judge may direct a warrant of execution to issue to the high bailiff of the court, who by such warrant shall be empowered to levy or cause to be levied by distress and sale of the goods and chattels of such person a sum of money equal in amount to the sum which he was ordered to pay to the said accountant-general and to the costs incurred by reason of such default, and the sum so levied shall be paid to and be receivable by the said accountant-general under the direction of the court. Bule of Court. — Where default shall be made in the production of the certificate of the accountant-general the registrar shall give notice 394 County Cmirt Orders, and in writing to the judge of the fact of such default, and the judge may thereupon direct a warrant of execution to issue in accordance with section 5 of the Act. 40. Obdeb op Transfer op Suit or Matter to Court op Cham CERT. Whereas it appearing that the subject matter of this suit exceeds in amount the sum of £500, it is ordered that this suit [or matter] be transferred to the High Court of Chancery, together with the annexed certificate of the registrar of this court, showing the state of the suit \or matter] and the proceedings that have been had therein in this court. By the court. Registrar. 41. Order in the Natttrb of an Injunction. The plaintiff undertaking [by his counsel or attorney] to abide by any order this court may make as to damages, in case tms court shall hereafter be of opinion that the defendant shall have sustained any, by reason of this order, which the plaintiff ought to pay : Now, therefore, C. D., the defendant in this cause, his servants, agents, and workmen are hereby strictly enjoined and restrained from pulling down or suffering to be pulled down the house being number 16, Blank Street, Islington, in the county of Middlesex, and from selling the ma- terials whereof the said house is composed, [or from entering into any contract or contracts, and from accepting, drawing, indorsing, or negoti- ating any bills or bill of exchange, notes or note, or written securities or security, in the name of the partnership Arm of , and from con- tracting any debts or debt, and buying and selling any goods, and from making or entering into any verbal or written promise, agreement, or undertaking, and from doing or causing to be done any acts or act in the name or on the credit of the said partnership firm, or whereby the said partnership firm can or may in any manner become or be made liable to or for the payment of any sums or gum of money, or for the performance of any contract, promise, or undertaking, or, as the case may be,] until the day after the day upon which the cause shall be heard, or until further order [or until the day of , upon which day this court will consider whether this order shall be further continued]. Dated this day of J. S., Judge. ^ If you the said C. D. [your servants, agents, or workmen,] act in disobedience to this order, you the said C. D. wiU be liable to be Rules in Equity. 395 committed by this court, and also be liable to have your estate sequestered. 42. Notice of Application fob Committal. Take notice that the plaintiff A. B. will on the day of ,18 , apply to this court for an order for your com- mittal to prison for having' disobeyed the order of this court made on the day of , 18 , enjoining and restraining you \or for having neglected to obey the decree or order made on the day of , 18 , requiring you] {here set out the mandatory part of the decree or order') ; ana further take notice that you are hereby required to attend the court on the flrst-men- tioned day to show cause why an order for your committal should not be made. Dated this day of , 18 . E. F., Registrar. To C. D., the defendant. 43. OBDEB OF COMMITTAL POll BBEACH OF AN OBDBE IN THE NATUEE OF AK INJUNCTION. Whereas by an order of this court, dated the day of 18 , [here recite the order]: now, upon the application of the plaintiff, and upon hearing the defendant [or if the defendant does not appear, reading the affidavit of X. Y., or where service has been hy bailiff, of L. M., a bailiff of this court, or the County Court of , holden at , showing, or being satisfied on oath, that a copy of the said order and notice of this application have been severally served upon the defendant C. X».], and upon reading the affidavit, of &c., {enter evidence], the court beinff of opinion, upon consideration of the facts disclosed by the said affidavit [or affidavits], that the said defendant C. B. has been ffuilty of a contempt of this court by a breach of the said order, doth order that the said defendant CD. do stand committed to \here insert prison used hy the court] for his said contempt. 396 County Court Orders, and 44 ORDER OF COMMITTAL FOR NBGIBOT TO OBEY DECREE OB ORDER. Whereas by a decree {or order] of this court dated the day of ■ ) 18 \here recite the decree or order'] : now, upon the application of the plaintiff, and upon hearing' the derendant, [or if the Mfendant does not appear, reading the affidavit of X. F., or where service has been by bailiff, of L. M., a bailiff of this court, or the County Court of , holden at , showing, or being satisfied on oath, that a copy of the said decree \or order] and notice of this appUcation have been severally served upon the Defendant C. D.,] and upon reading the afBdavit of, &c., [enter evidence], the court being of opinion, upon consideration of the facts disclosed by the said affidavit [or affidavits], that the said C. D. has been guilty of a contempt of this court by neglecting to obey the said decree I or order^, doth order that the said defendant C. J), do stand committed to [here insert prison used by the court] for hia said contempt. 46. WARRANT OF COMMITTAL. To the high bailiff and others the bailiffs of the said court and all peace officers within the jurisdiction of the said court, and to the governor or keeper of the [here insert prison used by the court] Whereas by an order bearing date the day of , it was ordered that the defendant C. D. should stand committed to prison for contempt of this court : These are therefore to require you forthwith to arrest and appre- hend the defendant C. D. and him safely convey and deliver to the governor or keeper of the [prison used by this court], and you, the said governor or keeper, to receive the defendant C. D. until further orders of this court. Dated this day of , 18 . E. F., Registrar of the Court. 46. NOTICE OF APPLICATION FOR DISCHARGE FROM CTJSTODT. Take notice that I intend on the day of 18 to apply to this court [or the registrar of this court] to discharge me from custody, I being desirous of clearing my contempt. Dated th& day of , 18 . C. J)., defendaikt. To ^.S., plaintiff. Ritles in Equity. 397 47. ORDER OP DISCHARGE PROM CUSTODY. Upon application made this day of , by , for the defendant, who was committed to prison for contempt, by order of this court dated the day of ,18 , and upon reading the affidavit of the defendant filed the day of ,18 , showing' that he is desirous of clearing his contempt, and upon hearing , the plaintiff, [or if no one appears for plaintiff, then upon being satisfied that notice of this application has been duly served upon the plaintiff], this court \or I, the undersigned registrar of this court,] do hereby order that the said defendant be discharged out of the custody of the governor [or keeper] of \h,ere insert name of prison] as to the said contempt, but not as to the costs of the said contempt Dated this day of , 18 . a. F., Registrar of the Court. 48. AFFIDAVIT, under 30 & 31 Vict. c. 142, s. 24. In the County Court of , holden at In the matter of " The County Courts Act, 1867," and of [add the title of the particular trust, as " the trusts of a certain indenture of mortgage, dated the day of , and made between A. B. and C. D. "] I, C. D. of [address and description], make oath and say, as follows — 1. State place for service, as— M J hoMBe being . > '^ the place where I am to be served with any potice or application relating to the trust fund hereinafter mentioned. 2. State the amount of money or stock proposed to be paid, or transferred, or security deposited in trust to attend the orders of the court as under the provisions of the said Act, I desire to pay into the Post bffice Savings Bank the sum of hereinafter mentioned. 3. Set out a short description of the trust and of the instrument creating it, as, by the indenture before mentioned a certain messuage situate at > '^^^^ ^^^ appurtenances, was mortgaged by the said A.B.to me, my heirs and assigns, for securing to me the repayment on the day of > 18 > of the sum ot £■ > '^^^^ interest for the same at the rate of £ per cent, per annum, and the said indenture contained a power of safe in case of default in payment, and it was by the Bald indenture declared that the monies to arise from any such sale should after retaining thereout the expenses of executmg the said ' E B 2 398 County Court Orders, and power, and the said principal money and interest, be paid to the said A. B., his heirs or assigns. The said A. B. died on or about the day of _ , and by his will dated the day of , appointed prfMn'Sdress ^•^- °^*> executor thereof, and devised the said hereditaments, and description, subject to the said mortgage, unto G. H. of* and J. K. of* in trust If the address of fop (hg aa,id E. P., for his hfe, and after his death upon certain trusts toreited'bTun- for sale, and for the division of the proceeds amongst the following known to the persons, namely, the testator's son Jif. N. of *, and his children or ftci musfb'e set '''^'^'^' ^""^ *^^ testator's daughter O., the wife of P. Q. of*, and her forth in the children or child. affid»Tit. The said S. P. proved the said will in [state in nihat cov/rt\, and is stiU hving. The said G. H. never acted in the trusts of the said wiU, &c. On or about the day of , I sold the said here- ditaments by public auction to X. T. of [address and description\ at the price of £ After retaining out of the said £ the costs of sale, and the sum of £ , being the total amount of principal monies and interest due upon the said mortgage, and the sum of £ , being the costs of paying the fund into court, a balance of £ now remains in my hands, and the sum of £ , which I desire to pay into the Post-office Savings Bank, in trust to attend the orders of this court, is the said balance of£ 4. State the names of the persons interested in, or entitled to, the fund, to the best of the trustees hnorvledge or belief, as — To the best of my knowledge and beUef, the said G. H. and J. K., as such trustees as aforesaid, and the said E. P., M. N. and his children or child (stating,if known, their names), and O. P. and her children or child [stating if' known, their names], are the only persons interested in the said fund. 6. Add submission to answer inquiries, as — I submit to answer all such inquiries relating to the application of the said fund of £ , as the court may think proper to make or direct. Sworn at, &c. 49. Ceh.tit'icate in case op Momet. In the County Court of , holden at (Seal.) In the matter of " The County Courts Act, 1867." In the matter of the [trusts of ]. I hereby certify, that [state name, address, and description of party making the application] nas this day filed with me, the registrar of this court, an affidavit entitled as above mentioned, with re^rence to a trust fund or sum of therein mentioned, which sum, as therein stated, he desires to pay into my name as such registrar as Rules in Equity. 399 foresaid into a Post-office Savings Bank, as provided by the above Dated this day of Registrar of the Court. 50. Certificate in case of Transfer op Stock. In the County Court of , holden at (Seal.) In the matter of "The County Courts Act, 1867." In the matter of this I hereby certify, that [state name, address, and description of party making application] has this day filed with me, the registrar of this court, an affidavit entitled as above mentioned, with reference to a trust fund of £ , Bank £3 per Cent. Consolidated Annuities in the books of the Governor and Company of the Bank of England, which, as therein stated, he desires to transfer into the names of the treasurer and of the registrar of this court [or the super- intendent, Sj'c], as provided by the above Act. Dated this day of , 18 . Registrar of the Court. 51. Acknowledgment of Filins of Receipt or Transfer Ticket. In the county court of holden at (Seal.) In thematter of " The County Courts Act, 1867." and In the matter of this I hereby acknowledge, that [state the name, address, and description of the party giving to the registrar the receipt of the Post-office Savings Bank, in the case of money, or the transfer ticket in the case of stock,] has this day delivered to me, the registrar of the court, a receipt dated [name of officer of the Post-office Savings Bank], for the sum of £ , stating that [state receipt] [or, a transfer ticket of the Governor and Company of the Bank of England, stating that [state as in ticket]. Registrar of the Court. 400 County Court Orders, and 52. Certificate op Deposit of Sbcueitv. In the county court of holden at In the matter of " The County Courts Act, 1867," and In the matter of this (Seal.) I herehy certify that [state the name, address, and description of the party depositing with the registrar the security^ has this day deposited with me, the registrar of this court, in the name of myself and the treasurer \here state the nature of the security deposited]. Registrar of the Court. 53. Notice of Payment into Post Office Savings Bank ob or Tbansfeb of Stock ob Deposit of Secdeitt. No. In the county court of holden at (Seal.) In the matter of " The County Courts Act, 1867," and In the matter of this Take notice, that on the day of [state name, address, and description of party who has paid in the money] under the said Act paid into the Post-office Savings Bank at , in the name of me, the registrar of trus couit, the sum of £ , and in lus affidavit filed in this court on the day of shortly described the instrument creating the trust, and stated the names of the per- sons interested in or entitled to the fund, to the best of his knowledge and belief, as follows, that is to say [state from the affidavit tlie paragraph containing the names of the persons interested or entitled] [or, " transferred into the names of of " , and of me, the registrar of this court, in the books Rules in Equity. 401. " of the Governor and Company of the Bank of England, the sum of £ Bank £3 per Cent. Consolidated Annuities, in trust to attend the orders of this court, or deposited with me in the " names of of " and of me the registrar of this court in trust to attend the orders " of this court [here describe security"]. And further, take notice, that any person interested in or entitled to the said fund may apply to this court respecting the investment, paymeut out, or distribution of the fund, or of the income thereof, according to the practice of the court. Registrar of the Court. 54. Notice to Tkbasdker. No. In the county court of ' holden at (Seal.) In the matter of « The County Courts Act, 1867," and In the matter of this Take notice, that on the day of [state name, address, and description of party who has deposited the security] under the said Act deposited with the registrar of this court, in the names of yourself and myself, in trust to attend the orders of this court {here describe security). To E. F., Treasurer, Registrar of the Court. {or as the case may be.) 65. Letter to Commissioners or Treasury as to drawing OUT Monet. (Seal) County Court Office, My Lords, I have the honour to request that an authority may be ad- dressed to the Postmaster-General to allow me to draw out of the 402 County Court Orders, and Rules in Equity. Post-office Savings Bank the sum of £ [here insert the sum desired to be drawn out, adding/, where the sum is not to pay interest] being the sura I am directed to draw out by order of court, dated the day of 186 . I am, my Lords, Your obedient servant, Registrar of the County Court of holden at O. X. BUSSELL. J. B. Dasbnt. j. 'worlledqb. Rupert Kettle. W. FUBNBB. I approve of these rules, orders, and forms, to come into force, in all county courts on the 1st day of January, 1868. CHELMSFORD, C. A SCALE COSTS AND CHARGES TO BB PAID TO COUNSEL AND A T T O R N I E S IN EQUITABLE MATTERS TTNDER " THE COUNTY COURTS ACT 1865," AND " THE COUNTY COURTS ACT, 1867." Instructions to sue or defend . . . . . Application for substituted service or service out of England -------- Service sum allowed by judge. Drawing plaint or petition or statement by defendant, or preparing instructions for counsel to draw the same, and attendance therewith - - . . - Fee to counsel and clerk therewith - - - - Attendance, and filing plaint, petition, admission, or statement - - -.- Every copy of plaint, petition, admission, or statement - Examining and taking minutes of evidence of each wit- ness afterwards allowed by the judge (whether coun- sel employed or not) -.-.-. If above six folios, allowed on taxation for every additional folio ...... Drawingbrief for counsel, per folio . - - - Copy brief, per folio, and necessary documents to accom- pany same ....... Attending counsel therewith - - - - Fee to counsel and clerk, sum paid not exceeding If conference with counsel allowed, appointing it and attending counsel ------ Fee to counsd and clerk, on conference - - - Attending court on tiial, with counsel . - - - Attending court and conducting cause, where no counsel employed .-----.- Lower Scale not exceed' ing£100. £ s. d. 10 4 Higher Scale above £100. £ I. d. 15 6 13 4 1 1 3 6 2 4 6 3 4 6 8 2 3 3 4 6 8 1 1 1 1 4 4 3 4 3 4 3 5 6 5 10 10 13 4 1 6 1 6 13 4 1 1 1 10 2 2 404 Equity. Costs. Lower Scale not exceed' ing£100, Higher Scale above £100. Where judgment is deferred, attending court to hear it - Plans and models, where necessary for use at hearing, by special order on taxation, not exceeding Witnesses' expenses, according to scale in force. Attending taxing costs ...... Occasional Costs. Lodging order of transfer - . - Ifotice to produce, notice to admit, — notice of application for a new trial, or to set aside proceedings, — includ- ing copies or duplicate originals and service, and attending registrar of the court therewith, such no- tices and copies being signed by the attorney On receipt of notice to produce or admit perusing same, and advising thereon ...... Attending inspecting documents . . . . . Mileage, one way, from the attorney's place of business to place of inspection of documents, for each mile, not exceeding, unless by special order ofjudge, in the whole 20 miles All necessary affidavits, not exceeding five folios, in- cluding filing, each ...... For eveiy additional folio .... Oath, (sum paid). Attending court to support or oppose any application or motion without counsel ..... Attending in the last-mentioned cases with counsel Fee to counsel and clerk not exceeding ... Preparing admission by defendant . . . . Attorney^ travelling expenses to attend court, one way, not exceeding 20 miles, per mile .... If above 20 miles, actual cost. Where in the opLoion of the registrar he cannot return the same night, in addition to the above mileage . Any attendance on the registrar, or before an examiner, or any attendance upon the opposite party, which the registrar may, upon taxation, think was necessary . When the attendance is longer than one hour, then for every additional hour or part of an hour All costs for letters, and for searches for certificates of births, inarriages, and deaths, which the registrar may, upon taxation, think necessary, such sum as the registrar shall deem reasonable. Fees and copies ; (sum paid). Drawing accounts and other documents not included in the foregoing costs, but allowed upon taxation of costs to be necessary, per folio .... £ s. d. 6 8 2 2 6 8 10 6 8 6 8 6 8 10 5 1 I 1 15 13 6 3 4 10 1 11 6 6 4 £ ». d. 6 8 2 2 6 8 16 8 13 4 13 4 6 8 per hour. 1 6 10 110 15 2 4 6 6 8 10 1 II 6 7 6 8 8 Equity. Costs. 405 For perusing and adapting old abstracts of title, per three sheets ........ Drawing abstracts of additional deeds and documents, per sheet ..---._. For preparing conditions and contracts of sale, and fair copy, per folio -..---'- Where condition and contract are not submitted to coun- sel, in addition to the above there shall be allowed for perusing abstracts, every three sheets Where conditions and contracts are to be settled by coun- sel, instructions to counsel to accompany abstract, and attendance therewith, or letter . . _ Fee to counsel clerk ...... Pair copies of abstracts of title or of accounts, documents, opinion of counsel, and of papers received from coun- sel, perfolio ....... Attending sale -....-..' Where by any proceeding taken by the opposite party it becomes necessary to advise or receive instruction from a client in the progress of a suit or matter, for each attendance ...... Where in the course of a cause or matter a party suing or sued in a fiduciary or representative character neces- sarily incurs costs not allowed upon taxation between party and party, the registrar shall apply to the judge to allow such sums as he may think fit out of any funds in court applicable to that purpose. Attending taxing costs ...... All necessary copies, per folio . . . . . OflSce copies obtained from Court of Chancery, (sum paid). Letters and messages - ..... Costs of the Day on Adjournment. Attending court where no counsel employed Attending with counsel - - - - Eefresher fee to counsel and clerk not exceeding - Witnesses' expenses same as on trial. Costs on Appeal. Preparing notice of appeal, including copies and service - Preparing case, including copies - - - - - Attending judge to sign .' ' ' ' " " Attending judge m case of diflerence to settle Application to stay proceedings - - - Transmitting case and copies, including notice to success- ful party - - - - j.","^" Application to judge for leave to proceed on judgment - Depositing decree or order of court of appeal Lower Scale uot exceed' ing £100. Higher Scale above £100. 3 4 6 8 8 3 4 6 8 6 8 5 £ ». d. 3 4 6 8 8 3 4 13 4 4 2 2 13 4 7 4 10 15 1 10 15 1 3 6 2 4 6 7 10 10 15 5 7 9 10 15 7 10 5 7 5 .7 3 4 jj_B_ 7%g registrar is to tax the hills of costs upon the lower scale when the subject matter of the suit or proceeding does not exceed £100, and upon the higher when it exceeds £100. 406 Equity. Costs. A SCALE OP COSTS AND CHARGES TO BE PAID TO COUNSEL AND ATTOENIES, . UNDER " THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT 1862," AND « THE COMPANIES ACT 1867." Attorneys shall be entitled to charge and he allowed in proceedings nnder " The Industrial and Provident Societies Act, 1862," and in proceedings transferred to a County Court under " The Companies Act, 1867," the same costs and charges as they would be allowed in the Court of Chancery, except that where the amount of the subscribed capital of the society or company shall not exceed £2000, they shall be allowed such costs and charges according to the lower scale authorized by the second rule of the 38th Consolidated General Orders of the Court of Chancery. INDEX. ABATEMENT OP SUIT. See aUo "Revivor." By death of plaintiff or defendant, 172, 345. By marriage of female plaintiff, 172. ABROAD. Service of process, 6, 838. ABSENT PARTIES. Inquiry as to, 3. Notice to, of decretal order, 3, 344. ACCOUNTANT GENERAL. Payment of legacy under 86 Geo. 3, c. 52, s. 32, 186, 353. ACCOUNT. Taking of, by registrar, 167, 342. Just allowances to be made in taking of, 343. Books of, primd facie evidence, 342. In mortgagee's snit. See " MoRTGAeE." In pai-tnership suit. See " Partnership." Notice of allowance of, 343 ACQUIESCENCE IN BREACH OF TRUST, 44. ADDING TO DECREE, 3, 119, 344, ADJOURNMENT OF HEARING. When, 116, 341. ADMINISTRATION SUIT. In what court to be instituted, 12, 234. Jurisdiction in, to order the sale of real estate, 14. Order in which assets are administered, 14. When real estate liable to debts, 14. When mortgaged estate primarily liable, 15. Retainer of debt, by executor or administrator, 16. ADMINISTRATOR. See title " Exeoittoe." In what court to sue and be sued, 12, 234. ADMISSION. How made and certified, 75, 338. May be partial, 75, 339. Of documents, on notice, 339. Costs not allowed, when, 339. Index. ADVANCEMENT, 183. See " Maintenance and Advancement op Infants." Proceedinga for, 185, 234, 345,346. ADVERTISEMENTS. For creditors, heirs-at-law, next of kia, 342. In what newspapers advertisements to be inserted, 359. AFFIDAVIT. . How it should be framed, 110, 351. Before whom to be sworn, 110. No erasure allowed in ; must be legibly written ; and any interlineation authenticated, 110, 351. Duty of registrar when he rejects affidavit, 356. For substituted service or service abroad, 16, 338. Of signature to admission by defendant, 75, 338. May be used at hearing, if party on notice does not object, 340. In support of application upon, to examine a witness de bene esse, 105. In support of, or in opposition to, a petition, or application for an injunction, 95, 348. Under Trustees Belief Acts, what it should state, 191, 346. Upon paying money into Post Office Savings Bank, 191, 346. Upon paying money into court, 191, 346. AGREEMENT. Suit for specific p£rformance of, or for the reforming of, or for the delivery up of, 60, 231. In what court such suit is to be instituted, 60, 234. Jurisdiction of court, 60. Parties to plaint, 60. What constitutes part performance of an agreement, 81. ALLEGATIONS ON PART OF DEFENDANT. See title " Defendant." AMENDMENT OF PLAINT, 87,91, As to application to amend, when to be made, 87, 349. When granted at the heaiing, 87. Power of court to proceed with the hearing before amendment directed is made, 93, 261, 349, 350. APPEAL. In what cases an appeal lies, 176, 236, 282. As to notice of appeal, 176, 236. Deposit and security for costs of, 177, 236. Mode of appeal, 177 282, 355. Transmission of case to Court of Appeal, 178, 355. Case to be settled by judge, when, 177, 355. Not to operate as a stay of proceedings, 179, 355. Default in prosecution of appeal, 178, 356. Judgment on appeal, 179, 356. Appeals to the Court of Chancery of the County Palatine of Lan- caster, 179, 236, 356. Index. APPEARANCE. At hearing of plaint by both parties, 271 , 3 1. By plaintiff only. 272. r » i • By defendant only, 272. APPLICATIONS. Exparte, 95, 348. For committal, 95, 852. For discharge from custody, 360. ASSESSMENT OF DAMAGE IN EQUITY. By jury, 117, 233, 266, 271, 341 . ASSIGNEE OF BANKRUPT. As to appointment of, 85. What rights of action pass to, 85. See title, " Bankrupt." ASSISTANCE, WARRANT OF, 229. ATTORNEY.— SOLICITOR. Retainer of, 7. Change of attorney, 358. Notice of change, 858. Service on attorney, 359. Scale of costs and charges, 403, 406. Taxing officer, 360. BANKRUPT. What rights pass to assignee of, 11, 85. When the defence of bankruptcy may be raised, 86. When bankruptcy of defendant is a good plea, 86. BREACH OF TRUST, 44. CERTIFICATE OF REGISTRAR. Application to vary, 167, 344. Confirmation of, 344. Inspection of, 344. Preparation of, 167, 344. CESTUI QUE TRUST. As to the jurisdiction of court over, 39. As to parties to plaint by, 42. As to acquiescence by, in breach of trust, 44. CHANCERY, COURT OF. Power and authority of, to be exercised in certain suits or matters by County Courts, 281. Proceedings in, may be transferred to County Courts, 238. Officers of County Courts to discharge any duties of an officer of the Court of Chancery, 232 Vice- Chancellor of, to order transfer of any suit or matter from one County Court to another, 233. Duties of chief clerk to be discharged by registrar, 342. Appeal to a Vice-Chancellor, 176, 236, 355. Index. CHANGK OP ATTORNEY. By party, notice of, 358. CHARGE. Jurisdiction in suits for enforcing a, on lands, 49, 231. In what courts suits to be instituted, 49, 234. CLAIMS. Of creditors to be transmitted to the Registrar, 343. Of heir-at-law and next of kin, 343, Commitment, 230. CONDITIONS OF SALE. Decretal order to direct, who to prepare, 118, 342. And the conveyancing counsel who is to settle them, 118, 342, CONDUCT OF SUIT, 118, 359. CONTEMPT OF COURT. How punishable, 239, 352. To what prisons commitment may be made, 278. Commitment no satisfaction of debt, 231, 274. CONVEYANCING COUNSEL. When to settle conditions of sale, 118, 342. To be named by judge, 118, 342. COSTS. General rule as to, 116. Taxation of, by Registrar, 360. Scale of, to be framed by Judges, 236. CREDITORS. Advertisement for, in administration suit, 342. Need not attend in support of cliiim unless required, 343. Where required to transmit or produce security, and any deed, &c., to the Registrar, 343. Evidence of accounting party to be taken as to claims of, 843. Where claims of, allowed, notice to be given, 343. Claims sent too late may, on certain conditions, be entertained, 342. CUSTODY. Discharge from, 360. DAMAGE. Assessment of, by jury, 117, 233, 266, 271, 341. DAYS. Computation of, 361. DB BENE BSSB. Examination of a witness, 105. Application for an order to examine, 106, 340. Index. DECREE, FINAL. To be drawn up by Registrar, 119. How enforced, 228, 362. DECRETAL ORDER. As to, 118. To be drawn up by Registrar, 118, 341. As to preparation of, and execution of a deed in pursuance of, 118, 341. As to appointment of a receiver, 118, 342. As to sale of real property, 118, 342. As to personal estate, 118, 342. Day to be named in, for Registrar to certify result of inquiries, 118, 342. Where it directs accounts to be taken, 118, 342. Notice of, to absent parties, 3, 344. Enforcement of, 230, 352. To be entered in a book, 356. When interlocutory and tvlien final, 118. What directions it ought to contain, 118. Minutes not required, 119.. As to conduct of sale, to whom given, 118. As to adding to decree, 1 19. Final decree, as to, 119. Endorsement on, 120. Registering, 120. In creditor's suit, 120. DEED. Where parties cannot agree on form of, 342. Registrar may require production of by claimant against an estate, 343. DEFENCE. Infancy, 76. Coverture, 76. Statute of Limitations, 76. Bankrupt Act, discharge under, 76. DEFENDANT. To be served with summons with plaint annexed, 6, 338. After receipt of copy, defendant to be liable to costs then incurred, 75, 338. Proceedings by defendant, 75, 338. As to admission to be made by defendant, 75, 338. Disclaimer, 75, 339. Statement by defendant, 76, 339. Set off, infancy, covei-ture, or bankruptcy, notice to be given of, 76. DEPOSITIONS OF WITNESSES. On examination of, by a Registrar, 106, 340. DEVISEE, SUIT BY. In what court instituted, 12, 231, 234. Claim by, how proved, 343. r F Index- DISCHARGE FROM CUSTODY, 360. DISCLAIMER. As to disclaimer by defendant, 75. Forms of, 80, 81. DISMISSAL. Of suit or proceeding at request of plaintiff, 101, 339. By judge, 116, 341. DISSOLUTION OF PARTNERSHIP, SUITS FOR. In what court they may be instituted, 68, 232, 234. Upon what grounds dissolution granted, 69. DOCUMENTS. Notice to admit, 106, 266, 839. to inspect, 106, 254, 339 Production of, surainons for, 106, 254, 340. Secondary evidence of, 340. When unobjected to may be read without formal proof, 340. Party objecting to pay costs of, in certain cases, 340, ENFORCING DECREE, AS TO, 228, 230. Notice of decree to be served upon party to be bound by, 228, 352. Process not to issue until three days after service of decree, 228, 352. Where made for payment of money, warrant of execution may issue, 228, 352. Possession of lands, goods, &c,, how obtained, 229, 352. Committal of party, 229, 352. ENLARGING TIME. Power of judge to make order for, 359. EVIDENCE. Of witnesses to be taken viva voce, unless otherwise provided for by orders, 105, 339. Where parties do not object, may be given by affidavit, 340. Affidavits and depositions read at the hearing shall be read as the evidence of the party using them, 341. Account books to be taken as primiJ/acie evidence of the matters contained therein, 342. Notice to admit, and inspect books, 106, 375. Summons to witness, to produce books, 106, 375, 376. Order to examine witnesses do bene esse, 107. Order to appoint examiner to take, 107. Depositions before special examiner on taking, 108. Declaration, form of, 108. Depositions before special examiner of a witness cross-examined on his affidavit, 109. Affidavit, form of, 110. See also titles "Depositions op Witnesses," and "Affi- davit." EXAMINATION OF WITNESSES Vivd voce at the hearing in suits, 105, 339. By affidavit in proceedings, 340. Out of district of court in which plaint entered, 340. De bene esse, 107, 340. Index. EXECUTOR. Suits by or against; in what court suit or proceeding to be had, 12, 234. EXPENSES OF WITNESSES. Scale on which to be allowed, 340. FACT, QUESTIONS OF. When to be tried by a jury, 117, 233, 266, 271, 341. FIERI FACIAS. Warrant in the nature of a writ of, 228, 352. FILING Of plaint, 6, 337. Of requisition by plaintiff to dismiss plaint, 339. Of admission by defendant, 75, 388. Of disclaimer, 76, 339. Of decretal orders, 341. Of final decree, 345. Of defendant's statement, 76, 339. Of petitions and notices, 192, 348. Oforderon, 192, 348. Of change of attorney by a party, 358. Of other documents, 356. FINAL DECREE. To be drawn up by Registrar, 1 19, 345. FORECLOSURE, SUITS FOR. In what court instituted, 49, 231, 234. FORMAL PROOF OF A DOCUMENT. When dispensed with, 340. FUNDS IN COURT. Registrar's accounts to be audited, 353. As to payment into court, 123, 187, 190, 191, 192, 353. As to entry and payment of interest on, 353. Registrar to transmit bank book to Postmaster-general, 353 Drawing out of money from, 363. Interest on investments, 353. Service of order, 363. Where default is made in payment to Accountant-geueral, 353. As to married women's interests in, 354. GUARDIAN, Appointment of, ad litem, by infant defendant, or by j udge, 10. Petition by, 346. HEARING. When to take place, 338. Time for, may be abridged, 359. Parties to be prepared with evidence, 1 16. To be in open court, 341. Court may dismiss the suit or grant relief on the, 116, 341, Before a jury as to questions of fact, and as to amount of damages, 117, 233,266,271,341. ff2 Index. HEIR-AT-LAW. Claims by, bow proved, 343. HUSBAND AND WIFE. When joined as co-plaintiffs in a suit, 8. When wife sues by next friend, 8. INFANT. Suits by, must sue by next friend, 9. Undertaking of next friend to be responsible for costs, 9, 359. Who may institute a suit for an infant, 11. As to control exercised by court over suit, 11. As 10 course when two suits are instituted on behalf of, 11. As to removal of next friend, 11. In case of death of next friend, 11. As to appointment of guardian ad litem, 10. Proceedings for advancement or maintenance of an, 183, 185, 233, 345. In what court proceedings to be taken, 334. Legacy to which an infant may be entitled may be ordered to be paid into Court of Chancery under s. 3-2 of 36 Geo. 3, c. 52, 186, 353. Warrant of execution in default of payment, 186, 353. INFANT DEFENDANT. Guardian ad litem to be appointed to, at hearing, 10. INJUNCTION. Order in the nature of, obtained on notice, 95, 232, 346. Without notice, 348. How enforced, 229, 352. In administration suit, to restrain action at law, 100. When mortgagee is entitled to restrain felling timber by mortgagor, 99. INQUIRIES AND ACCOUNTS. To be made and taken by Registrar, 167, 342. In taking, all just allowances to be made, 343. To appoint a day for, 356. INSPECTION OF DOCUMENTS. See " Documents." INTEREST. On debts, 360. On legacies, 360. INTERPRETATION OF TERMS, 360. INVENTORY. Of goods seized, 357. JUDGMENTS [" COUNTY COURT."] Registry of London, 120, 260. Note of decretal order, &c., to be sent to the Registrar, 120, 360. JURISDICTION. County court to have all the powers and authority of Court of Chan- cery in administration suits, 231. Index. JURISDICTION— eonMnued. In suits for execution of trusts, 231 . For foreclosure or redemption, 231. For enforcing any charge or lien, 231. For specific performance, 231. For the delivery up or cancelling agreement for sale or purchase of property, 231. For the dissolution or winding up of partnerships, 231 . In proceedings under trustee relief, 231. Under Trustee Acts, 231. In' proceedings for the maintenance or advancement of infants, 232. In proceedings for an order in the nature of an injunction, 232. In what court suit or proceedings to be had, 234. Of Sheriff's Court of London, 232. JURORS. Duties and obligations of, 233. All enactments in County Court Acts as to trial by, to apply to suits In equity, 233. JURY. Trial of questions of fact by, or as to amount of damages, 117, 341. Trial by, in discretion of judge, 117, 341. KIN, NEXT OF. Claims by, how proved, 343. LEGACIES. Interest on, 360. LEGATEES. Advertisements for, 342. Claims by, how proved, 343. LIMITATIONS, STATUTE OF. Plea of, 82. MAINTENANCE AND ADVANCEMENT OF INFANTS. Proceedings for, 183, 185, 232, 234. In what court to be taken, 234. Form of petition for maintenance, 189, 372. MARRIED WOMAN. Where interested in any money, stocks, &c., exceeding £200, examinedbyjudge, 143, 354. When she sues alone in respect of her separate property, 8. When next friend necessary, 8, 9. ^ , - q Course to be taken where no separate estate ot, y. Her powers and liabilities in respect thereof, a>. Her rights in case of judicial separation, 31. Her equity to a settlement, 36. MISJOINDER. Of parties as plaintiffs, 350. MONEV. Payment of, into court, how enforced, 229, 352. Index. MORTGAGE. Jurisdiction in suits for foreclosure, or redemption of a, 49, 231. In wliat court suits to be instituted, 49, 234. Mortgagee entitled to ebforce all his securities at same time, 99. As to parties, 49. As to persons entitled to redeem, 53. As to annual rests, and an occupation rent, 54. When mortgagee subject to costs, 55. When injunction granted in case of power of sale, 55. When mortgagor entitled to an inquiry as to expenditure,.58. NEXT FRIEND. To sign an undertaking to pay costs, 9, 359. NEXT OF KIN. Advertisement for, 342. Claim by, how proved, 343. NON-APPEARANCE. Of plaintiff at the hearing, 272. Of defendant, 272. NOTICE. Of admission by defendant, 75, 338. Of disclaimer or answer, 75, 339. Of dismissal of suit, 101, 339. To admit documents, 106, 339. To inspect, 106, 339. Of intention to use affidavit at bearing, and of objection thereto, 340. Requiring a claim to be proved, 343. To heir-at-law, next of kin, &c., to prove claim, 343. Of allowance of claim, 343. To absent parties, 3, 844. That Registrar's Certificate may be inspected, 344. Of petition, 348. Of application for an order in the nature of an injunction, 346. Of day on which petition or application will be heard, 348. Of decree or order, on party to be bound by, 228, 352. Of transfer of proceedings to Court of Chancery, 354. From Court of Chancery, 355. Of intention to appeal, 176. Of lodgment of appeal, 355. Of transmission of case to Court of Appeal, 355. Of rejection of an affidavit by Registrar, 356. Of sitting of Registrar to take accounts, &c., 356. Of application by Registrar for enlargement of time to certify any matter to the court, 357. To receiver to produce hie accounts, 358. Of change of attorney by party, 858. OATH. Evidence at the hearing to be taken vivd voce on oath, 339. Of witnesses on, before Registrar, 340. Index. OFFICE COPIES. To be prepared by Begistrar, 359. PARTIES. As to parties to a plaint, general rule, 5, What parties dispensed with under 15 & 16 Vict. c. 86, ss. 42 44 2 and 3, 175. ' As to service of notice of decree on absent parties, 3. As to parties to foreclosure suits, 3, 49. See also titles " Amendment op Plaint, Personal Ke- PKESENTATIVB." PARTNERSHIP. Suits for dissolution of, jurisdiction of court in, 68. Nature of partnerships, 69. As to partnership at will, 69. Grounds for dissolution of partnership, 69, 70. Jurisdiction in suits for dissolution or winding up of, 68, 232. In what court suits to be instituted, 68, 234. PARTITION. Suits for, 73, 232. In what court suit to be instituted, 234. PAYMENT. Into court, 123, 186, 187, 353. PERFORMANCE, SPECIFIC. Jurisdiction in suits for, 60, 231. In what court suits to be instituted, 234. Plaints for, 60, 66. PLAINT. Commencement of suit by, 1, 337. In what court, 1, 237. What statements plaint should contain, 1, 337. As to prayer, 1, 237. As to praying injunction, or ne exeat regno, 2. As to parties, 2, 3, 4, 5. As to absent parties, 5. Form of, 1, 6, 338. Indorsement on, 5, 337. Delivery of copies of, 5, 338. Filing of, 6, 338. Authority to solicitor to filo, 7. Titles and commencement of, 7. By husband and wife, 8. By maiTied woman, 8. By infant, 9. By assignee of creditor, 11. POSSESSION. Warrant of, 229, 352. Index. POST OFFICE SAVINGS BANK. Investments in, 123, 187, 353. By trustees, 187, 346. N otice of inyestment in, to be given by Registrars to cestuis que trust, 347. PRINTING. Of proceedings, 5, 358. PROCESS. Service of, how proved, 6, 338. Substituted service of plaints, 6, 338, Service wJien out of England, 6, 338. PROOF. Of debts and claims, 343. PRODUCTION OF DOCUMENTS. Summons for, 340. PROPERTY. Sale of, 118, 342. PURCHASE-MONEY. Paying in, bybigh bailiff, 357. QUESTIONS OF FACT. May be tried by jury, 117, 341. Practice in such case, 117, 341. REAL ESTATE. Sale of, conduct of, 118, 342. Conditions of sale, 118, 343. RECEIVER. Appointment of, 2, 342. If not high bailiff, to give security, 357. Duties of, 358. Audit of accounts of, 358. REFERENCES. To conveyancing counsel, 118, 342. REGISTRAR OF JUDGMENTS. Registration of decrees by, 120, 360. To Insert advertisements in Gazette, 369. Registrar of court, his duties, 167, 856. As to plaints and summons, 356. Indea:. REHEARING. When granted, 351. REVIVOR, ORDER OF. When suit becomes abated, 172, 345. Order of revivor, how obtained, 172, 345. Service of, 173, 345. REVIVOR. Where sole plaintiff has died, 172, In case of marriage of female plaintiff, 172. Against executor of deceased defendant, 172. Upon the bankruptcy of plaintiff, 175. SALE OF PROPERTY. Suit for reforming, delivering up ov cancelling an agreement for, 60, 231. In what court suit to be instituted, 60, 234. Of real property, 118, 342. Of personal property under superintendence of high bailiff, 118, 342. SECONDARY EVIDENCE. Of a document, when admissible, 340. SERVICE. Of plaint, 6,338. Of summons on witness, 340. Of notice to absent parties, 3, 344. Of order of revivor, 345. Of petition, 348. Of notice of intention to apply for an injunction, 346. Of order in the nature of an injunction, 349. Of decree or order, 352. Of order to pay money into court to the credit of the Accountant- General in Chancery, 363. SPECIAL EXAMINER. Appointment of, 106, 340. STATUTE OF FRAUDS. Allegation by defendant of, 81. When defence of the statute may be raised, 82. When lease should be sealed, 82. STAYING PROCEEDINGS. On appeal, 179, 355. STOCK. Transfer of, to Registrar and Treasurer, 191, 238, 347. SUBSTITUTED SERVICE. Order for, when granted, 6, 359. Index. SUITS. Transfer of, to Court of Chancery, 232, 354. from Court of Chancery, 238, 354. - from one court to another, 234. When to be remitted to Court of Chancery, 233. In what County Court to be instituted, 234. SUMMONS. As to commencing suit by, I, 239. SUMMONS FOR COMMITMENT. See "Commitment.' TAXATION OF COSTS. Registrar to be Taxing Master, 360. TIME, ENLARGEMENT OF. For doing any act, may be granted by judge, 359. TRANSFER OF PROCEEDINGS. To Court of Chancery, 233, 354. From Court of Chancery to County Court, 238, 354. From one County Court to another, 234. TRANSFER OF STOCK, &c. By trustees and others, 194, 238, 347. TREASURER. Who to discharge duties of, where there is no treasurer, 347. TRUSTEE RELIEF ACTS. Jurisdiction of County Courts under, 187, 191, 234. Proceedings under, to be by petition, 345. Court in which proceedings are to be taken, 234. Petition to be filed seven days before hearing, 348. • Service of copy of petition with notice to attend the bearing, 348. Facts relied on in support of petition, to be proved by affidavit, 348. Registrar to draw up order of court under, 348. Same practice as to suits, to be followed on petitions, 348. Payment of money into Post Office Savings Bank under, 238, 346. Transfer of stock to Registrar and Treasurer under, 238, 347. Deposit of security under, 347. Affidavit of trustees upon paying money into a Post Offiee Savings Bank under, 191. On paying money to court under, 190. Notice to parties beneficially interested under, 348. VIVA VOCE. Witness to be examined, 105. VICE CHANCELLOR. May, on application, transfer suit from County Court to Court of Chancery, 232, 364. Index. VICE CHANCELLOR— rowiinued. When suit is to be transferred to, 233. May remit suit back to County Court, 233. May transfer suit to a County Court, 238. WARRANTS. OSfi.fa., 229, 3.52. Of assistance, 229, 352. Of possession, 229, 352. High bailiff to execute, 357. WIFE. To be examined apart from her husband, where interested in money to the amount of £200, 143, 364. WITHDRAWAL Of plaint, 339. WITNESS. Summons to, to give evidence or produce documents, 340. Process, if he neglects or refuses to appear or produce, 228, 229, 352. When evidence may be taken by affidavit de bene esse, 340. How examined when he resides out of the jurisdiction of the court in which the plaint is entered, 340. Allowance to, 340. London : Printed by Shaw and Sons, Futter Laflc. Ml-fV-m* '*'il.(liL*-i3