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 iE. 31. iiaraljaU. ffi.iC- 1. 1B94 
 
CORNELL UNIVERSITY LIBRARY 
 
 3 1924 085 503 872 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924085503872 
 
THE 
 
 STATUTES AKD ORDERS 
 
 BEtAimG TO THB 
 
 PRACTICE AND-JUEISDICTION 
 
 OF TEE 
 
 COURT OF CHANCERY; 
 
 AND OF THE 
 
 COURT OF EREOR AND APPEAL, 
 
 -WITH nsroTES. 
 
 THOMAS WAEDLAW TAYLOR, M.A., 
 
 or OSSOODE HALL, BABBI8TEB-AT-LAW. 
 
 TEIBD EDITION. 
 
 TORONTO: 
 ADAM, STEVBKSON & Co., LAW PUBLISHERS. 
 
 1868. 
 
TOKONTO : 
 
 A. LOYELL A 00., LAW AND GENERAL PRINTERS, 
 
 TONGE STREET. 
 
PEEFACE TO THE THIED EDITION. 
 
 Since the last edition of this work was published 
 several important statutes affecting the Court of Chan- 
 cery have been added to the Statute Book. 
 
 Of these the Chancery Act, 28 Vic, c. 17, extending 
 the jurisdiction of the Court in matters of Lunacy, the 
 Act for Quieting Titles and the Property and Trusts Act 
 are included in this edition. The sections of the Acts 
 relating to County Courts, the Limitation of Actions, 
 and Evidence, printed in the last edition, have been 
 omitted, and in their place the Law Stamp Act, and 
 those important sections of the Attorneys' Act, providing 
 for the delivery and taxation of bills of costs have been 
 given. 
 
 During the present year the work of consolidating 
 the General Orders of the Court has been accomplished. 
 
 This will prove a great boon to the profession, for 
 although the consolidation is not so perfect as might be 
 wished, the Orders of Court are now collected together 
 and reduced to a more manageable form, 
 
 A Table of the Abrogated Orders shewing the Consoli- 
 dated Orders into which they are incorporated is pre- 
 fixed to this edition. 
 
 Thanks are due to Mr. G. M. Rae for the care and 
 labour he has bestowed upon the preparation of the 
 Index. 
 
 OSGOODE HAI-Ii, 
 
 October, 1868. 
 
TABLE OF CONTENTS. 
 
 PART I.— STATUTES. 
 
 Chancery Act 1 
 
 Con. Stat. 17. C. e. 12. 
 
 SURKOGATE CoURTS ACT 37 
 
 Con. Stat. U. C. c. 15. 
 Imprisonment FOR Debt Act 40 
 
 Con. Stat. U. C. c. 24. 
 Attorneys AND Soiicitobs Act 48 
 
 Con. Stat. U. 0. o. 35. 
 Ebligious Institutions Act 59 
 
 Con. Stat. U. C. o. 69. 
 Cttstody OF Infants Act 61 
 
 Con. Stat. TJ. C. c. 74. 
 Foreign Affidavits Act 63 
 
 26 Vio. 0. 41. 
 
 Law Stamps Act 66 
 
 27 & 28 Vic. c. 5. 
 
 Chancery Act 69 
 
 28 Vic. c. 17. 
 
 Quieting Titles Act 77 
 
 29 Vic. c. 25. 
 
 Property AND Trusts Act 98 
 
 29 Vio. c. 28. 
 Chancery Act 117, 
 
 20 & 30 Vic. c. 39. 
 
 PART IL— ORDERS. 
 
 Preliminary 118 , 
 
 Orders 1 — 7. 
 
 Officers or the Court 121 
 
 'Orders 8—39. 
 Solicitors and parties acting in person and ser- 
 vice ON THEM respectively 131 1< 
 
 Orders 40—52. 
 
vi contents. 
 
 Parties 138 
 
 Orders 53—65. 
 Pleadings and -wkitten pleadings generally. 156 
 
 Orders 66—73. 
 Bills 159 
 
 Orders 74^85. 
 Service of Bills 165 
 
 Orders 86—103. 
 Taking bills pkoconfesso 174 
 
 Orders 104—119. 
 Demukrers 183 
 
 Orders 120— 121. 
 Answers 185 
 
 Orders 122—133. 
 Production of Docttments , 190 
 
 Orders 134—137. 
 Examination of Parties 195 
 
 Orders 138—148, 
 Replication — Joining Issue 198 
 
 Orders 149— 155, 
 Notice to admit 200 
 
 Orders 156— 167. 
 Setting down and Hearing 201 
 
 Orders 158—184 
 Decrees and Orders 211 
 
 Orders 185—196. 
 Chambers , 214 
 
 Orders 197^^210. 
 Master's office 219 
 
 Orders 211— 257. 
 Affidavits 255 
 
 Orders 258—261. 
 Motions and Petitions 257 
 
 Orders 262—277. 
 Receivers , 269 
 
 Orders 278—283. 
 Injunction 274 
 
 Orders 284—285. 
 Stop Orders 277 
 
 Orders 286—287. 
 Process 279 
 
 Orders 288—303. 
 
CONTENTS. VH 
 
 C0ST3 , 284 
 
 Orders 304—321. 
 
 PEOOBEDINaS TO REVERSE, ALTER, OR EXPLAIN DECREES 
 
 AND Orders 293 
 
 Orders 322—336. 
 Revivor AND Supplement 297 
 
 Orders 337—357. 
 Payment of money into and out op court 305 
 
 Orders 358—373. 
 Sales 310 
 
 Orders 374—397. 
 Examination pro interbsse suo 317 
 
 Orders 398—401. 
 Copies 318 
 
 Orders 402—405. 
 Time 319 
 
 Orders 406—412. 
 Sittings op the Court 321 
 
 Orders 413—420. 
 Vacations 323 
 
 Orders 421—425. 
 Mortgage Suits 324 
 
 Orders 426—466. 
 Administration Suits 338 
 
 Orders 467—487. 
 Alimony Suits 345 
 
 Orders 488—491. 
 Quieting Titles 346 
 
 Orders 492—516. 
 Infants and Persons of unsound mind 353 
 
 Orders 517—537. 
 Miscellaneous... 368 
 
 Orders 538—546. 
 Supplementary 361 
 
 Orders 547—549. 
 
 Declaratory 362 
 
 Orders 550—552. 
 
 Appendix. 
 
 Schedules 365 
 
 Court of Error and Appeal Act 402 
 
 Court of Error and Appeal Orders 414 
 
 Appendix of forms ,.... 427 
 
^ TABLE 
 
 OP 
 
 ABROGATED ORDERS, 
 
 ASB OF 
 INTO WHICH THEY HAVE BEEN INOORPOHATED. 
 
 CHEONOLOGICALLT ARBANGED. 
 
 A~brogated Orders. 
 
 Incorpo- 
 rated into 
 
 Abrogated Orders. 
 
 Incorpo- 
 rated into 
 
 Srd June, 1853 Order I 
 
 
 
 3rd June, 1853 Order IX, s 
 
 . 19 
 
 Order 85 
 
 11 
 
 
 
 X 
 
 
 ... 546 
 
 
 III 
 
 
 Order 7 
 
 XI 
 
 
 ... 120 
 
 
 IV 
 
 T, 8. 
 
 1 
 
 ... 421 
 ... 406 
 
 ... XII, 
 
 .. 1 
 
 ( ... 122 
 i ... 123 
 
 
 
 2 
 3 
 
 ... 407 
 
 
 
 .. 2 
 
 f ... 88 
 1 ... 89 
 
 
 
 4 
 
 ... 408 
 
 
 .. 3 
 
 ... 133 
 
 
 
 5 
 
 ... 409 
 
 
 .. 4 
 
 ... 126 
 
 
 !! .".' vi, s. 
 
 1 
 
 
 
 
 ... 127 
 ... 128 
 
 
 
 2 
 
 ^ 
 
 "• 
 
 .. 5 
 
 
 ... r 
 
 1 
 
 
 ... XIII, 
 
 s. 1 
 
 ... 104 
 
 
 
 2 
 
 58 
 
 
 .. 2 
 
 . . lOS 
 
 
 
 3 
 
 ... 69 
 
 
 .. 3 
 
 ... 107 
 
 
 
 i 
 
 • ... 60 
 
 
 
 .. 4 
 
 ... 108 
 
 
 
 6 
 
 ... 61 
 
 
 
 ( ... 518 
 
 
 
 6 
 
 62 
 
 
 
 .. 5 
 
 \ ... 519 
 
 
 
 7 
 
 
 
 
 1 ... 620 
 
 
 
 8 
 
 
 
 .. 6 
 
 ... 109 
 
 
 !! ■.'.'. vii ■■ 
 
 
 
 
 .. 7 
 
 ... lU 
 
 
 ... VIII 
 ... IX, » 
 
 . 1 
 
 ( ... 74 
 
 \ ... 76 
 I ... 76 
 
 Z '." xiv, 
 
 .. 8 
 3. 1 
 .. 2 
 
 82 
 ... 417 
 ... 112 
 
 „, ... 
 
 2 
 
 / ... 77 
 I ... 87 
 
 ::: ;;: ::: 
 
 .. 3 
 
 .. 4 
 
 ... lis 
 
 ... 191 
 
 
 
 
 3 
 
 ... 86 
 f ... 87 
 1 ... 103 
 
 
 
 .. 5 
 
 J ... 114 
 I ... 116 
 
 
 
 
 i 
 
 ^^^ 
 
 .. 6 
 
 . . lis 
 
 
 
 6 
 
 ... 101 
 
 
 .. 7 
 
 ... 117 
 
 
 
 . 6 
 
 ... 99 
 
 ^^^ 
 
 .. 8 
 
 ... 328 
 
 
 
 7 
 
 
 
 .. 9 
 
 ... 118 
 
 
 
 , 8 
 
 ... 100 
 
 
 
 ..10 
 
 ... 119 
 
 
 
 
 9 
 
 78 
 
 
 
 f - ^l 
 
 
 '.'. '.'.'. '.'.'. '.'. 
 
 10 
 . 11 
 
 ... 79 
 80 
 
 ... XV, 
 
 i. 1 
 
 i ... 468 
 J ... 469 
 
 
 
 . 12 
 
 81 
 
 
 
 V. ... 470 
 
 
 
 13 
 
 83 
 
 
 
 .. 2 
 
 ... 471 
 
 
 
 14 
 
 r ... 344 
 
 ■! ... 845 
 
 (. ... 346 
 
 ... 347 
 
 '.'.'. '.'.. XVI 
 ... XVII 
 
 .. 3 
 
 ... 270 
 
 i ... 271 
 I ... 272 
 
 
 17 
 
 ... 322 
 
 ...XVIII, 
 
 9. 1 
 
 ... 149 
 
 '" 
 
 
 f ... 331 
 
 ■•• ••• 
 
 .. 2 
 
 ... 152 
 
 • •• 
 
 18 
 
 ■ ... 833 
 
 
 
 r .-.. 153 
 
 
 
 . ... 334 
 
 *■■ •!• 
 
 .. 3 
 
 ■5 ... 154 
 
 
 
 
 
 
 
 (. ... 155 
 
TABLE OF ABROGATED ORDERS. 
 
 Abrogated Orders. 
 
 Incorpo- 
 rated into 
 
 Abrogated Orders. 
 
 Incorpo- 
 rated into 
 
 8rd June, 1853 Order XIX, a. 1 
 ... XX, ». 1 
 
 2 
 
 8 
 
 4 
 
 5 
 
 ... XXI 
 
 ... XXTT, .. 1 
 
 2 
 
 3 
 
 4 
 
 6 
 
 :!! !!'xxiv, s" 1 
 
 2 
 
 ;:.' ::; xxvi ■" 
 
 ... XXVII. s. 1 
 
 2 
 
 ... XXVIII 
 ... XXIX 
 ... XXX 
 
 ... XXXI 
 
 ...XXXII, 8. 1 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 !;; ;■.; xxxnfs. i 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 ...XXXV, e. 1 
 2 
 
 ;:! ;:; xxxvii's. i 
 
 2 
 
 3 
 
 4 
 
 6 
 
 6 
 
 Order 46 
 
 f ... 134 
 
 1 ... 185 
 
 ... 137 
 
 ... 176 
 
 f ... 188 
 1 ... 189 
 
 ( ... 170 
 1 ... 171 
 
 r ... 141 
 
 ... 142 
 
 (. ... 143 
 
 J ... 147 
 
 I ... 148 
 
 j ... Ut 
 
 ( ... 145 
 
 ... 146 
 
 ... 140 
 
 ... 273 
 
 ... 274 
 
 ... 275 
 
 ... 196 
 
 ... 639 
 
 ... 284 
 
 ... 285 
 
 ... 538 
 
 57 
 
 56 
 
 ( ... 53 
 
 ] ... 64 
 
 (. ... 65 
 
 ; ... 428 
 
 J ... 429 
 
 ... 426 
 
 ... 427 
 
 ... 461 
 
 t ... 462 
 
 1 ... 463 
 
 / ... 432 
 
 I ... 433 
 
 ... 540 
 
 ... 541 
 
 ... 197 
 
 ... 210 
 
 ... 208 
 
 ( ... 198 
 
 { ... 203 
 
 ( ... 204 
 
 ... 199 
 
 r ... 205 
 
 1 ... 206 
 
 r ... 207 
 
 t ... 246 
 
 ... 200 
 
 ... 301 
 
 ... 202 
 
 ... 374 
 
 ... 376 
 
 ... 376 
 
 ... 877 
 
 ... 378 
 
 ... 382 
 
 3rd June,185S Order XXXVI,8.7 
 
 10 
 
 11 
 
 12 
 
 13 
 
 ... XXXVII, B.1 
 
 2 
 
 3 
 
 4 
 
 6 
 
 6 
 
 7 
 
 8 
 
 9 
 
 XXXVIII, 8.1 
 
 '.'.'. '.'.'. XXXES/s. 1 
 
 2 
 
 ... XL, 8. 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 8 
 
 9 
 
 ... XLI, s. 1 
 2 
 
 5 
 
 ... XLII, 8. 1 
 
 2 
 
 3 
 
 4 
 
 6 
 
 6 
 
 7 
 
 8 
 
 9 
 
 10 
 
 11 
 
 12 
 
 r ... 380 
 ... 381 
 ... 383 
 
 1 ... 384 
 ... 38S 
 
 L ... 388 
 ... 388 
 ... 389 
 
 ... 879 
 
 ... 527 
 
 ... 628 
 
 ... 629 
 
 ... 630 
 
 ... 631 
 
 ... 632 
 
 ... 633 
 
 ... 634 
 
 ... 635 
 
 r ... 278 
 
 ... 279 
 
 I ... 280 
 
 1 ... 281 
 
 ... 283 
 
 L ... 283 
 
 ... 537 
 
 ... 262 
 
 f ... 263 
 
 t ... 264 
 
 ... 48 
 
 f ... 260 
 
 1 ... 261 
 
 ... 268 
 
 r ... 266 
 
 I ... 268 
 
 ... 267 
 
 ... 269 
 
 ... 398 
 
 ... 401 
 
 ... 211 
 r ... 216 
 
 ... 217 
 J ... 228 
 1 ... 231 
 
 ... 232 
 L ... 240 
 r ... 283 
 ,' ... 234 
 1 ... 285 
 L ... 236 
 
 ... 288 
 f ... 229 
 t ... 280 
 
 ... 227 
 
 ... 237 
 C ... 213 
 i ... 214 
 C ... 213 
 
 ... 239 
 
 ... 212 
 f ... 224 
 I ... 225 
 
 ... 249 
 
TABLE DP ABEOQATED ORDERS. 
 
 XI 
 
 Abrogated Orders. 
 
 Incorpo- 
 rated into 
 
 AbroBited Orders. 
 
 Incorpo- 
 rated into. 
 
 3rd Jnne, 1853 Order XLIT, s. 13 
 ...14 
 
 16 
 
 16 
 
 ... XLIII, s. 1 
 
 4 
 
 6 
 
 6 
 
 7 
 
 11 
 
 12 
 
 ... XLIV. s. 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 ... XLV, s. 1 
 
 Order 220 
 C ... 221 
 
 ... 222 
 -, ... 223 
 
 ... 226 
 L ... 474 
 r ... 244 
 I ... 245 
 
 ... 247 
 
 ... 261 
 24 
 
 ... 40 
 
 44 
 
 f ... 648 
 
 \ ... 649 
 
 ... 321 
 
 26 
 ... 186 
 ... 187 
 
 r ... 189 
 
 i ... 190 
 
 (. ... 194 
 
 34 
 
 72 
 
 36 
 
 36 
 
 37 
 
 f ... 33 
 
 43 
 
 ... 304 
 
 ... 3115 
 
 ... 306 
 
 f ... 307 
 
 1 ... 308 
 
 f ... 288 
 
 t ... 289 
 
 ... 290 
 
 ... 292 
 
 ... 293 
 
 ... 294 
 ... 136 
 ... 297 
 ... 412 
 
 ... 626 
 f ... 50 
 1 ... 51 
 
 ... 622 
 
 ... 168 
 ... 167 
 
 f ... 159 
 
 I ... 160 
 
 ... 161 
 
 ... 163 
 
 aSrd Dec, 1857, Order II, s. 8 
 
 ..; 9 
 
 10 
 
 11 
 
 12 
 
 13 
 
 14 
 
 15 
 
 16 
 
 , III, s. 4 
 
 ::: ::: ::: ::: iJ 
 11 
 
 12 
 
 6th Feb., 1868, ... I, 
 
 II, 
 
 Ill, 
 
 ::: ::: ::: 'V 
 
 VI, 
 
 VII. 
 
 30th June, 1858. 
 
 13th April, 1859, ... I, 
 
 II, 
 
 Ill, 
 
 IV, 
 
 30th April, 1859. 
 
 5th Oct., 1859 
 
 Order 168 
 
 ... 172 
 ... 17S 
 
 ... 174 
 
 ... 164 
 ... 162 
 ... 183 
 ... 184 
 69 
 70 
 ... 71 
 
 ... 444 
 1 ... 439 
 1 ... 440 
 
 ... 44« 
 ... 447 
 ... 449 
 ... 466 
 ... 408 
 
 J ... 181 
 
 1 ... 182 
 
 ... 179 
 
 68 
 
 ... 647 
 
 2 
 
 8 
 
 ... XLVI. s 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 '.'.'. '.'.'. '.'.'. '.'.'. 9 
 
 10 
 
 ... XLVII 
 6th June, 1853 Order I. 
 IL 
 6th I'ebruary, 1854 
 
 29th June, 1861, I, 
 
 II, 
 
 III. 
 
 IV, 
 
 V, 
 
 VI, 
 
 VII, 
 
 VIII, s. 1 
 
 2 
 
 3 
 
 IX, 
 
 X, 
 
 XI, 8. 1 
 
 2 
 
 XIT, =. 2 
 
 XIII, s. 1 
 
 10th July, 1861, 
 
 22nd Feb., 1862, Order. I, 
 
 ;" '.'.'. '.'.'. Ill, 
 asth April, 1862, ... I, s. 1 
 
 '.'.'. '.'.'. '.'.'. '.'.'. s 
 
 II, 
 
 ; Ill, 
 
 IV, 
 
 V, ». 1 
 
 2 
 
 3 
 
 VI, a. 1 
 
 ; 2 
 
 ... 270 
 ... 464 
 ... 838 
 
 ... 316 
 ... 255 
 ... 2.56 
 ... 267 
 
 42 
 
 ... 260 
 
 ... 261 
 
 C ... 457 
 
 ) ... 458 
 
 ) ... 459 
 
 L ... 460 
 
 S ... 262 
 
 I ... 263 
 
 ... 254 
 
 ... 259 
 
 30th April, 1855. 
 
 17th September, 1856. 
 
 8th November, 1856 
 
 17th March, 1857. Order I. 
 
 !" '.'.'. '.'.'. III. 
 IV. 
 
 6th April. 1857. 
 
 2Srd Dec, 1857. Order I. 
 
 II, a. 1 
 
 2 
 
 S 
 
 4 
 
 , 6 
 
 6 
 
 7 
 
 ... 323 
 ... 241 
 ... 242 
 
xu 
 
 TABLE OF ABROGATED ORDERS. 
 
 Abrogated Orders. 
 
 Incorpo- 
 rated into 
 
 Abrogated Orders. 
 
 Incorpo- 
 rated into 
 
 28th April, 1863. Order VI. s. 
 
 8 
 
 Order 243 
 
 6th Feb., 1866. Order XXXII, 
 
 Order 14 
 
 v:i, 
 
 
 ... 175 
 
 XXXIII, 
 
 IS 
 
 Till, 
 
 
 
 XXXIV, 
 
 16 
 
 , IX, B. 
 
 1 
 
 
 XXXV. 
 
 
 
 
 2 
 
 
 XXXVI, 
 
 ... 248 
 
 
 s 
 
 
 XXXVII, 
 
 ... 311 
 
 
 i 
 
 
 XXXIX, 
 
 ... 312 
 
 9th May, 186^ Order "l, 
 
 II, 
 
 III. 
 
 
 ... 332 
 
 XXXVIII. 
 
 XL, 
 
 XLIi 
 
 ... SU 
 
 
 
 
 IV, 
 
 
 ... 277 
 
 XLII, 
 
 
 V, 
 
 
 
 XLIII. 
 
 
 6th June, 1862, Order I, 
 
 
 
 XTrTV, 
 
 
 II, 
 
 
 f ... 337 
 
 X1,V, 
 
 XLVI, 
 
 ... 188 
 
 in, 
 
 
 ... 838 
 ' ... 339 
 V. ... 810 
 
 XLVII, 
 
 XLVIII, 
 
 J ... 410 
 ( ... 411 
 
 10th Jan., 1863, Order I, 
 
 
 ... ,324 
 
 19th Sept., 1865, Order I, > 
 
 
 II, 
 
 
 ... 166 
 
 to } 
 
 
 Ill, 
 
 
 { ... 165 
 I ... 169 
 
 VIII. J 
 20th Dec, 1865, Order I, 
 
 ... 617 
 
 IV, 
 
 
 
 II, 
 
 ... 521 
 
 V, 
 
 
 ... 74 
 
 Ill, 
 
 ... 97 
 
 VI, 
 
 
 
 IV 
 
 ... 9S 
 
 VII, ». 
 
 1 
 
 2 
 
 
 ::: ::: ::: v^: 
 
 ... 6S 
 ... 348 
 
 
 3 
 
 4 
 
 ■ ... 90 
 
 VII, 
 
 f ... 349 
 
 X ... 350 
 
 ... 351 
 
 
 5 
 
 _ 
 
 VIII, 
 
 ,., ... 
 
 6 
 
 
 IX 
 
 ... 4ST 
 
 ,,, ,,, , 
 
 7 
 
 
 X. 
 
 ... 431 
 
 ,,, __, 
 
 8 
 
 
 XI. 
 
 ... 436 
 
 ... 
 
 9 
 
 
 XII, 
 
 
 6th Feb., 1865, Order I, 
 .... II, 
 
 ] 
 
 ... 66 
 
 XIII, 
 
 f ... «S 
 
 1 ... 473 
 
 ... 209 
 
 Ill, 
 
 ... 67 
 
 XIV, 
 
 IV, 
 
 
 ( ... 93 
 
 XV, 
 
 XVI. 
 
 ... 65 
 
 ... 178 
 
 V, 
 
 
 \ ... 94 
 
 ( ... 9fi 
 
 XVII, 
 
 XVIII, 
 
 ... 84 
 ... 319 
 
 VI, 
 
 
 ... 124 
 
 XIX, 
 
 ... 825 
 
 VII, 
 
 
 ... 160 
 
 XX, 
 
 ... S26 
 
 VIII, 
 
 
 
 XXI, 
 
 ... 388 
 
 IX, 
 
 
 t ... 125 
 
 XXII, 
 
 ... 475 
 
 
 1 ... 151 
 
 XXIII, 
 
 ... 476 
 
 X, 
 
 
 
 XXIV, 
 
 ... 477 
 
 XI, 
 
 
 ... 180 
 
 XXV, 
 
 ... 478 
 
 XII, 
 
 XIII, 
 
 
 ... 402 
 ... 403 
 
 XXVI, 
 
 5 ... 479 
 
 I ... 480 
 
 XIV, 
 
 
 ... 404 
 
 XXVII, 
 
 ... 481 
 
 XV, 
 
 
 ... 405 
 
 XXVIII, 
 
 ... 483 
 
 XVI. 
 
 
 ... 166 
 
 XXIX, 
 
 ... 488 
 
 XVII, 
 
 } 
 
 ... 157 
 
 XXX, 
 
 ... 484 
 
 XVIII, 
 
 XXXI, 
 
 ... 485 
 
 XIX, 
 
 
 J ... 104 
 
 I ... 105 
 
 XXXII, 
 
 ... 486 
 
 
 XXXIII, 
 
 ... 487 
 
 XX, 
 
 
 ... 195 
 
 XXXIV, 
 
 
 XXI, 
 
 
 ... 276 
 
 XXXV, 
 
 ... 218 
 
 XXII, 
 
 
 12 
 
 XXXVI, 
 
 ... 320 
 
 XXIII, 
 
 
 13 
 
 XXXVII, 
 
 ... 343 
 
 XXIV, 
 
 
 ... 466 
 
 XXXVIII, 
 
 ... 343 
 
 XXV. 
 
 
 
 XXXIX. 
 
 
 XXVI, 
 
 
 ... 325 
 
 XL. 
 
 
 XXVII, 
 
 
 
 XLL 
 
 
 XXVIII, 
 
 
 
 XLIL 
 
 
 XXIX, 
 
 
 ... 827 
 
 10th Sept,, 1866, Order I. 
 
 
 XXX, 
 
 
 ... 265 
 
 IL 
 
 
 XXXI, 
 
 
 ... 295 
 
 Ill, 
 
 
TABLE OF ABROGATED ORDERS. 
 
 Xlll 
 
 Abrogated Orders. 
 
 Incorpo- 
 rated into 
 
 Abrogated Orders. 
 
 Incorpo- 
 rated ml 
 
 10th Sept., 1866. Order IV. 
 
 
 l8t April, 1867. Order Vin, 
 
 Order 187 
 
 Order 32 
 
 
 
 X, 
 
 ... 62S 
 
 Til, 
 
 17 
 
 
 XI, 
 
 ... 624 
 
 Tin, 
 
 
 
 
 .. XII, 
 
 
 IX, 
 
 ... 192 
 
 
 
 .. XIII, 
 
 
 X 
 
 ... 193 
 
 
 
 .. XIV, 
 
 ... 341 
 
 JCI 
 
 XII, 
 
 ... 869 
 
 
 .. XV, 
 
 
 ... 360 
 
 
 
 .. XVI, 
 
 ... 810 
 
 XIII, 
 
 ... 861 
 
 
 
 .. XVII, 
 
 ... 31B 
 
 XIV, 
 
 ... 362 
 
 
 .. XVIII, 
 
 ... 814 
 
 XV, 
 
 ... 363 
 
 31st Aug., 1867, Order I, 
 
 ... 492 
 
 XVI. 
 
 
 II, 
 
 ... 498 
 
 XVII, 
 
 
 Ill, 
 
 ... 494 
 
 XVIII, 
 
 i ... 352 
 \ ... 355 
 
 IV, 
 
 V, 
 
 ... 495 
 ... 496 
 
 XIX, 
 
 ... 353 
 
 VI. 
 
 ... 497 
 
 XX, 
 
 ... 354 
 
 VII, 
 
 ... 498 
 
 XXI, 
 
 
 VIII, 
 
 ... 499 
 
 XXII, 
 
 ... 856 
 
 IX, 
 
 ... 600 
 
 XXIII, 
 
 ... 367 
 
 X, 
 
 ... 601 
 
 XXIV, 
 
 
 XI. 
 
 ... 602 
 
 XXV, 
 
 ... 36S 
 
 XII, 
 
 ... 603 
 
 XXVI, 
 
 ... 865 
 
 XIII, 
 
 ... 504 
 
 xxvii, 
 
 xxviii. 
 
 ... 866 
 
 XIV, 
 
 ... 605 
 
 ... 367 
 
 XV. 
 
 ... 606 
 
 XXIX, 
 
 ... 868 
 
 XVI, 
 
 ... 607 
 
 XXX, 
 
 
 XVII. 
 
 ... 5118 
 
 ;:. ... XXXI, 
 
 22 
 
 XVIII, 
 
 ... 609 
 
 XXXII, 
 
 ... 41 
 
 XIX, 
 
 ... 610 
 
 XXXIII, 
 
 ... 47 
 
 , XX, 
 
 ... 611 
 
 Ist April, 1867, Order I, 
 
 73 
 
 XXI, 
 
 ... 612 
 
 
 ... 434 
 
 XXII, 
 
 ... 613 
 
 ::: ::: ::; ni! 
 
 ... 126 
 
 XXlII, 
 
 ... 514 
 
 . IV 
 
 ... 177 
 
 XXIV, 
 
 XXV. 
 
 ... 615 
 
 v^ 
 
 10 
 
 ... 616 
 
 VI, 
 
 11 
 
 XXVI, 
 
 
 VIX. 
 
 
 
 
 
TABLE OF CASES CITED. 
 
 Abbott, Ee, 49 ; 67. 
 
 Aberdeen v. Chitty, 272. 
 
 Abraham T. Shepherd, 30. 
 
 Acaster v. Anderson, 339. 
 
 Aokland v. Gaisford, 236. 
 
 Acomb T. Landed Estate Co., 191 
 
 Adams v. Earner, 331. 
 
 Adamson, Re. 50. 
 
 Adamson v. Wilson, 276. 
 
 Aikens v. Blain, 272. 
 
 Ainslie v. Sims, 291. 
 
 Ainsworth V. Alman, 71. 
 
 Aitchison t. Coombs, 233 ; 243. 
 
 Alchim V. Buffalo and Lake Hnron 
 Railroad Co , 136. 
 
 Alcock, Re, 57. 
 
 Allan V. Pyper, 171. 
 
 Allan T. Hotfiden, 154; 184. 
 
 AIsop T. Ld. Oxford, 286. 
 
 Ames T. Birkenhead Dock Trustees, 
 273. 
 
 Anderson v. Anderson, 206. 
 do T. Stamp, 41. 
 do T. Stather, 354, 
 
 Andrews, Exparte, 58. 
 
 do V. Lockwood, 300. 
 do Re, 53. 
 Andrews V. Walton, 260. 
 Angello T. Had don, 244. 
 
 do T. Wescombe, 319. 
 Angel T. Smith, 273; 317. 
 Angerstciu v. Hant. 277. 
 Angle v. Strather, 256. 
 Anglo Danubian Co. y. Eogerson, 
 
 276. 
 Aiusley v. Sims, 291. 
 Ainsworth v. Alman, 71. 
 Annis v. Wilson, 333. 
 Ardagh v. Wilson, 331. 
 Armstead v. Durham, 165. 
 Arner v. McKenna, 29. 
 Arnold v. Arnold, 163 ; 200. 
 Arrowsmith, Exparte, 48. 
 Asiatic Banking Co. v. Anderson, 
 
 171. 
 Askew v. Peddle, 244. 
 Atkins V. Cooke, 292. 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 Atkinson^ Re, 50. 
 Atty.-Gen. v. Aiford, 227. 
 do do T. Earlier, 138. 
 V. Bolton, 139. 
 T. Brewers' Co., 139. 
 V. Cbaiptaan, 190. 
 V. Cooper, 163. 
 V. Corporation of Leices- 
 ter, 164. 
 Atty.-Gen. y. East Durham Corn 
 
 Exchange Co., 191. 
 Atty.-Gen. v. Fellowes, 160 ; 209. 
 do do ■ V. Foster, 167 ; 158. 
 do V. Grassett, 28 ; 238. 
 T. Haberdashers' Co., 139 
 T. Hailing, 72. 
 T. Ironmongers' Co., 139. 
 T. Kerr, 139. 
 V. Knight, 140. 
 V. Marsh, 164; 165 ; 275. 
 T. Mayor, ifec. of Poole, 
 
 do 
 do 
 do 
 do 
 do 
 do 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 
 do 
 184, 
 Atty.-Geh. v. Mercers' Co., 191. 
 
 do da V. Nfethercoat, 163. 
 
 do do v. Oglendre, 139. 
 
 do do r. Pearson,' 154. 
 
 do do V. Plumtree, 139. 
 
 do do T. Portreeve of ATon,303 
 
 do do V. Ray, 127; 360. 
 
 do do T. Smart, 138 ; 139. 
 
 do do T. Soley, 228. 
 
 do do V. Toronto Street Rail- 
 way Co., 160. 
 Atty.-Gen. v. Tyler, 139 ; 140. 
 
 do do V. Vivian, 139. 
 
 do- do T. Wilson, 141. 
 
 do do T. Wright, 138, 
 Austin T. Austin, 63. 
 
 B. 
 
 Babcock, Re, 339. 
 Bagnall v. Whitehead, 302. 
 Bagshaw, Re, 52. 
 Bailey t. Bailey, 135. 
 
 do T CoUett, 71. 
 
 do V. Gundry, 291. 
 Bailey, Re, 48; 58. 
 Bailey's Settlement, Re, 157. 
 
CASES CITXD. 
 
 XT 
 
 Bainbrigge v. Baddelej, 163 ; 166. 
 Baldwin t. Orawford, 2Y4. 
 
 do V. Darner, 265 ; 269. 
 Ballard t. White, 251. 
 Ball v. Harris, 104. 
 Bamford r. Bamford, 239. 
 Bampton v. Birchall, 161. 
 Bancroft v. Wardom, 184. 
 Band t. Handle, 147. 
 Bank, Anglo Austrian, Re, 190. 
 do of British North Aifierica, v. 
 Heaton, 278. 
 Bank of Montreal T. Eetchuin, 337. 
 do do v. Ryan, 263 ; 290 
 
 do do V.Wilson, 124; 295. 
 do Upper Canada t. Wallace, 
 337. 
 Bank, Royal Oaiiadian v. Mitchell, 
 
 143. 
 Bank, Toronto SftringST. Life AsSnr. 
 
 Co , 147. 
 Banks v. Cartwright, 246. 
 Barclay v. Russsi, 140 ; 175. 
 Bardin's Will, Re, 70. 
 Barfield t. Kelly, 205. 
 Barlee t. Barlee, 143. 
 Barlow v. McBurray, 304. 
 Barnard, Re, 51. 
 Barnes, Re, 256. 
 Barnes t. Ridgwayj 162. 
 do T. Tweddell. 131. 
 Barnewell v. Ironmonger, 341, 
 Barnsley, Exparte, 14 ; 17. 
 Baron de Feueheres t. DaViea, 189. 
 Barrington, Re, 115. ■. 
 
 Barron, Re, 66 ; 57. 
 Barry t. Brasiil, 340 f 355. 
 Bartels t. Benson, 275. 
 Bartlett v. Wood, 341 . 
 Bartley T. Bartly, 191. 
 Barton v. Barton, 146. 
 Barton, Exparte, 57. 
 do T. Latour, 260, 
 do T. Whitcomb, 172. 
 Bartrum, Re, 51. 
 Bateman v. Cook, 150. 
 
 do T. Margefison, 154 ; 208. 
 Bates T. Master of Christ's Coll. 194, 
 Bauman v. Matthews, 72. 
 Baxter t. Campbell, 202. 
 do T. Finlay, 312. 
 do v. West, 271. 
 Bayley v. Cass, 192. 
 do Re, 52 ; 57. 
 Baylis v. Watkias, 359. 
 BazelgetteT. Lowe, 172. 
 Beamish v. Pomeroy, 298. 
 
 Beardmore T. Gregory, 146; 304. 
 Bear t. Smith, 208. 
 Beaton t. Boomer, 293. 
 Beaufort, Duke of v.Berty, 237. 
 Beaven v. Burgess, 126. 
 
 do Re, 54. 
 Becke, Re, 66. 
 Beckett v. llees, 199 
 
 do V. Wra^g, 238, 293. 
 Beckweth, Re, 89. 
 Bedford Charity, Re, 139. 
 Bedminster Charity, 158. 
 Beecher, Barker & Street, Re, 50. 
 Beeching v. Lloyd, 146. 
 Begg V. Forbes, 202. 
 Bellamy v. Sabiiie, 1 61. 
 Bell V. Cade, 71 ; 359. 
 Bellchamber v. Giani, 259. 
 Bell v. Danmore, 188. 
 do V. Hastings, 170. 
 do T. Hornby, 211. 
 Belaham v. Perciral, 29S. 
 Belton, Exparte, 133 
 Benbow v. Davies, 180. 
 Bendystre, Re, 7o. 
 Bennett t. Baxter, 220. 
 do v. Bennett, 22. 
 do V. Duke of Manchester, 34. 
 do Exparte, 241. 
 do V. Lee, 296. 
 ' do V. LyttOD, 110. 
 
 do T, O'Meara, 132 j 185; 3l8; 
 861. 
 
 do Re, 58. 
 Benson v, Hadfield, 184. 
 Bernard v. Alley, 255- 
 do T. Jartis, 22, 
 do Re, 51. 
 Bernasconi t. Atkinson, 263. 
 Berne, City of, v. Bank of England, 
 
 140. 
 Berney v. Sewell, 235 ; 271. 
 Berrie v. Mackin, 267. 
 Bertie v. Ld Abingdon, 274. 
 Bertolacci v. Johnson, 223. 
 Berwick, Mayor of, t. Murray, 156; 
 
 229. 
 Betagh t. Concanon, 301. 
 Bethell v. Casson, 1 92. 
 Betts T. Clifford, 276. 
 do T. Menzies, 193. 
 Beven, Re, 51. 
 Bevis T. Boulton, 242; 243. 
 Bererley's Case, 14. 
 Bickford v. Skewes 158. 
 Bigger v. Beaty, 354. 
 Biggs V. Penn, 154. 
 
XVI 
 
 CASES CITED. 
 
 Bignold, Re, 50 ; 57. 
 Bingley v. Marshall, 276. 
 Binington v. Harwood, 233. 
 Birkenhead Dock Trustees v. Laird, 
 
 359. 
 Bishop T. Willis, 167. 
 Black V. Black, 294. 
 Blackborough v. Eavenhill, 215. 
 Blackburn v. Jepson, 141. 
 do V. Sheriff, 315. 
 Balgrave T. Routh, 52. 
 Blaln T. Ager, 142. 
 
 do V. Terryberry, 205 ; 841. 
 Blake T. Blake, 127. 
 Blakesley, Re, 53. 
 Blakney v. Defaur, 291. 
 Blanchard v. Cathorne, 271. 
 Blandy v. DeBurgh, 49. 
 Ulenkinsopp T. Blenkinsopp, 173. 
 Biles V. Collins, 100. 
 Bliss V. Putnam, 148. 
 Bloomfield T. Eyre, 237. 
 Blunt T. Heslop, 49. 
 Boddington v. Woodley, 161. 
 Bolton T. Corporation of Liverpool, 
 
 194. 
 Bolton T. Risdale, 153 ; 302. 
 
 do V. Stannard, 153. 
 Bones v. Angier, l7l. 
 Bonnardet t. Taylor, 191. 
 Booth V. Creswick, 205. 
 Bootle T. Blundell, 34. 
 Bosanquet v. Marsham, 184. 
 Bostwick V. Shortis, 44. 
 Bouciaault v. Delafield, 298. 
 Boughten, Re, 70. 
 Boultbee v. Cameroii, 185. 
 Boulton T. Robinson, 186. 
 Boutsfield V. Mould, 199. 
 Bovill v. Co-wan, 193. 
 Bowen v. Fox, 32. 
 
 do Re, 54. 
 
 do T. Turner, 163. 
 
 do V. Pearson, 1 93. 
 Bowker v. Nixon, 251. 
 Bowman T. Bell, 272. 
 
 do V. Bowman, 45. 
 Bowyer v. Beamish, 300 ; 301. 
 Box, Re, 114; 115. 
 Boyd v. Higginson, 161. 
 
 do T. Wilson, 328. 
 Boyle, Re, 57. 
 Bozon T. Bolland, 136. 
 Bracey, Re, 50. 
 
 do T. Sandiford, 145. 
 Bradley v. Bevington, 34. 
 Brady, Re, 67. 
 
 Brandon v. Elliott, 275. 
 
 do T. Wheeler, 175. 
 Brattle v. Waterman, 162. 
 Brewen v. Austin, 332. 
 Brian t. Waistell, 162. 
 Brierly t. Ward, 179 ; 180. 
 Bricker y. Ausell, 136. 
 Budget T. Hames, 151. 
 Bridgewater v. DeWinton, 194. 
 Bighold, Re, 50. 
 Bright T. Legerton, 211. 
 Brigriall t. Whitehead, 127. 
 Bristow V. Needham, 273. 
 
 do T. Whitmore, 359. 
 Brocas v. Lloyd, 261. 
 Brock V. Saul, 314. 
 Brodie v. Barry, 15 ; 271. 
 Bromley v. Williams, 160. 
 Brook, Ld., v. Hertford. Ld., 145. 
 Brooks V. Greathead, 317. 
 Brothers v. Lloyd, 331. 
 Broughten v. Lashmer, 211. 
 Brown v. Baker, 175. 
 
 do T. DeTastet, 242. 
 Brown, Re, 52 ; 57 ; 58 ; 70 ; 149. 
 Brown v. Lee, 167. 
 Brownlee v. Cunningham, 290. 
 Brown v. Perry, 273. 
 
 do 7. Weatherhead, 145. 
 Bryan T. Conuick, 273. 
 Bucan v. Wilks, 312. 
 Buck V. Colnaghi, 210. 
 Buckley y. Cooke, 261. 
 Bugden r. South, 194. 
 Bullen r. Eenwick, 306. 
 Bullerworth v. Bailey, 162 ; 803, 
 Bunn T. Barclay, 166 ; 175. 
 Bunn V. Bunn, 194. 
 Bunnett, Re, 260. 
 Bunting v. Marriott, 110. 
 Burbridge v. Robinson, 192. 
 Burchall v. Giles, 158. 
 Burden v. Burden, 231. 
 Burke v. Tyne, 327. 
 Burns v. Chisholm, 269. 
 Burrows t. Hamey. 318 ; 362. 
 Burton, Re, 1 9 ; 158. 
 Burton v. Shaw, 166. 
 Bush, Re, 49. 
 Bush T. Watkins, 208. 
 Busk V. Beetham, 291. 
 Butler T. Gardner, 258. 
 Butlin V. Masters, 34. 
 Butterworth v. Bailey, 162. 
 Byam t. Sutton, 148. 
 Byde Y. Masterman, 157; 158. 
 Byng T. Clark, 167. 
 
CASES CITED. 
 
 XVU 
 
 Byreh, Re, 50. 
 
 Byron Ld. v. Johnston, 274. 
 
 By water Re 272. 
 
 0. 
 
 Caddick t. Cook, 149. 
 Caddicks Settled Estate, Re, 70. 
 Cade T. Newhall, 253. 
 Caldwell, Re, 114. 
 CallicotiJe 25. 
 Calton V. Wyld, 73. 
 Calvert v. Day. 160 ; 291. 
 Cameron t. Evans, 217. 
 Cameron v. McRae, 336. 
 
 do V. Phipps, 35. 
 Cameron's Coalbrook Rail. Co., Re, 
 
 292. 
 Cameron v. VanEvery, 26R. 
 Campbell v. Campbell, 294. 
 
 do V. Ferris, 267. 
 
 do V. Garrett, 255. 
 
 do Re, 48. 
 
 do V. Taylor, 168. 
 Cane V. Martin, 136. 
 Cannan V. Evans 217. 
 Canning v. Bell 159. 
 Oardross Ld,, Exparle, 48. 
 Carew v. Davis, 191. 
 
 do Re, 56. 
 
 do V. White, 195. 
 Carlisle v. South Eastern Rail. Co., 
 
 146. 
 Carpenter v. Wood, 242. 
 Carr v, Carr, 13. 
 Carroll v. Hopkins, 337. 
 Carruthers v. Armour, 275. 
 Carter v. Sanders, 146, 
 Cartwright v, Diehl, 22. 
 
 do V. Sheppard, 299. 
 Carven, Re, SI ; 53. 
 Casborne v. Barsham, 34. 
 Casey, Re, 243. 
 Cast V. Poyser, 245. 
 Catholic Publishing Co. v. Wyman, 
 
 212. 
 Cattlin, Re, 50; 52; 133. 
 Cauty v, Holditch, 258. 
 Cawthra v. Maguire, 275. 
 Chaffers v. Baker, 354. 
 
 do V Headlam, 147. 
 Chalk V. Raine, 205. 
 Chalmers v. Lawrie, 152. 
 
 do V. Pigott, 205. 
 
 Chamberlain v. McDonald, 143 
 
 185, 
 Chambers Ro 53, 
 
 Champ V. Stokes, 49. 
 
 Chance v. Henderson, 196. 
 
 Chandler, Re, 137. 
 
 Charlton V. Allen. 211. 
 
 Charlton v. Coombs, 194. 
 
 Chapin v, Clark; 292 ; 293. 
 
 Chappell V, Davidson, 276, 
 
 Cherry v, Morton, 187 ; 188. 
 
 Chilcote, Re, 50, 
 
 Chisholm V, Sheldon, 163; 205. 
 
 Cholmondley Ltf. v. Lord Clinton, 
 
 304. 
 Christie v, Cameron, 171 ; 354. 
 Christmas, Re, 122. 
 Chuck V. Cremer, 127. 
 Churchill v. Collier, 201. 
 
 do Methodist Episcopal Ch., 
 
 Re, 60. 
 Churton V. Frewen, 187 ; IQ.'! ; 196. 
 Clarke v, Clarke, 72 ; 152 ; 275. 
 
 do V, Dunn, 202. 
 
 do V. Hawke, 195. 
 
 do V, Mayor of Derby, 163. 
 
 do V. Law, 202; 258. 
 
 do Re, 340, 
 Clark V. Ferguson, 292. 
 
 do T. Gill ; 261. 
 
 do V. Jaques, 258, 
 
 do Re, 25; 5,S; 70, 
 Olarkson v. Barber, 50. 
 Clegg v. Edmonson. 193 ; 194, 
 
 do V. Fish wick, 271. 
 
 do V. Rowland, 1)2. 
 Clement v. Bowes, 146, 
 Clement V. Griffith, 257; 258. 
 Cleveland v. McDonald, 153. 
 Clevelands Harte Estate— Duke of, 
 
 278. 
 Cliffe V. TiVilkinson, 293. 
 Clifton V, Bentall, 157. 
 Clinch V. Financial Corporation, 
 
 193 
 Churchville Methodist Episcopal Ch. 
 
 60. 
 Cockburn v. Gilespie, 154. 
 
 do V. Thompson, 142. 
 Cochenour v. Bullock, 324 ; 335. 
 Cochrane v. Pearon, 292, 
 do v. Johnson, 79. 
 do V, Willis, 184. 
 Cockerville v. Cholmelly, 103. 
 Cocks V, Gray, 235. 
 Coffin V. Cooper, 157. 
 Colborne v. Thomas, 205. 
 Colby V, Hawkins, 155. 
 Coldwell V. Hall, 232. 
 Colebrooke v. Attorney-General, 72. 
 
XVUl 
 
 CASES CITED. 
 
 Colebrook Exfarie, 72. 
 Coleman v. Mellersh, 246. 
 Coleman T.West Hartlepore Harbour 
 
 Co., 195. 
 Coldgrave v. Manley, 136. 
 CoUett T. Pieston, 163 ; 200. 
 Collier v. Stutley, 72. 
 Collins T. Collyer, 180. 
 
 do Re, 137. 
 CoUinson v. Lister, 29S. 
 Colman v. Northcote, 354. 
 Colquhoun, Re, 53. 
 Columbian GrOTernment v. Eothg- 
 
 child, 140. 
 Oolyer v. Colyer, 152; 192; 245; 
 
 300. 
 Commerell v. Hall, 304. 
 
 do T. Poynton, 136. 
 CongreTC, Re, 286. 
 Connell v. Curran, 31 ; 289. 
 Constable v. Guest, 249, 
 
 do T. Howick, 333. 
 Const T. Harris, 271. 
 Cook V. Banfield, 296. 
 
 do T. Baulton, 220. 
 
 do V Broomhead, 209. 
 
 do V. Oolliugridge, 230 ; 242. 
 
 do T. Dawson, 104. 
 Cooke V. Fryer, 143. 
 Cook V. Gillard, 49. 
 Coope v. Carter, 242. 
 Cooper r. Clark, 292. 
 
 do y. Purten, 292. 
 
 do T. Lane, 174. 
 
 do T. Lewis, 210. 
 
 do T. Uttoxeter Burial Board, 
 
 201. 
 Coppin T. Gray, 161. 
 Corbett v. Meyers, 279. 
 Cormack t. Beisley, 136, 
 Corry v. Ourlewis, 266. 
 Cory V. Thames Iron Co., 72. 
 Cossey v. Ducklow, 156. 
 Cotte T. Macbeth, 167. 
 C:otten v. Cameron, 266. 
 Cotton V. Wyld, 72. 
 CoulsoQ V. Sheehey, 300. 
 Courtney y. Stock, 209. 
 Courtois V, Vincent, 63. 
 Courtois' Will, Re, 159. 
 .Cousins V. Smith, 183; 276. 
 Co^ydell v. Neall, 48 ; 50. 
 Cox y. Stephens, 148 ; 134. 
 
 do y. Taylor, 148 
 Coy V. Henderson, 73. 
 Cozens v. McUougal, 253. 
 Craig y. Craig, 13. 
 
 Craig, Exparte, 71. 
 Cramner Exparte, 17, 
 Crandell y. Moon, 261. 
 Crawford- y. Birdsall, S54. 
 
 do y. Bradburn, 162. 
 
 do & Crombie, Re, 53. 
 
 do y. PoUey, 189. 
 
 Crawshay y, Collins, 229 ; 230. 
 Cresswell y. Batemen, 299. 
 Cresswell y. Byron, 136. 
 Cresy y. Beyan, 184. 
 Cridland y. Lord DeMauley, 165. 
 Crockett y. Bisbton, 256. 
 Crooks y. Crooks, 315. 
 . do y. Glenn, 313. 
 
 do y. Street, 253; 315. 
 Cropper y. Mellersh, 1 53. 
 Crossley y Stuart, 194. 
 Crowder y. Shee, 49. 
 Orowther v. Crowther, 237. 
 Crueze y. Hunter, 220, 
 Oruickshank y. Moss, 44. 
 Cryne y. Doyle, 178. 
 CuUen y. CuUen, 44. 
 Cummer y. Tomlinson, 3.S3. 
 Cummins y. Harrison, 328. 
 Cuppers y. Torston, 171. 
 Curling y. Marquis of Townshend. 
 
 188. 
 Currie, Ro, 57. 
 
 Currier's Co. v. Corbett. 72 ; 73, 
 Curtis y. Curtis, 62. 
 
 do V, Dale, 277, 
 
 do y. Lloyd, 210 
 
 D. 
 
 Dakin y. Cope, 236 ; 239. 
 
 Dalby, Re, 50. 
 
 Dale y. Hamilton, 311. 
 
 Dalmon, Ke, 50. 
 
 Dalton y. Hayter, 163 ; 265. 
 
 Dalton, Re, 70, 
 
 Danford y. Cameron, 170. 
 
 Dangar y. Stewart, 299. 
 
 Darby y. Whittaker, 73. 
 
 Darlow y. Simcook, 180 ; 181. 
 
 Daubney y. Leake, 152. 
 
 Daubuz V. Peel, 155. 
 
 Dayenport y. Davenport, 215; 276. 
 
 do y. Rylands, 22. 
 
 do y. Stafford, 123. 
 Dayey y. Durant, 240 ; 261. 
 
 do " y. Marshall, 276. 
 Dayidson v. Leslie, 136. 
 
 do y. McKillop, 264. 
 Davie, Re, 57. 
 
CASES CITED. 
 
 XIX 
 
 Davieav. Cracraft, I'? 4. 
 Davis V. Boulcolt, 147. 
 
 do V. Combermere, 222. 
 
 do T. Cripps, 157 ; 168. 
 
 do T. Duke of Marlborough, 271. 
 
 do V. Earl of Dysart, 52. 
 
 do T. May, 232. 
 
 do Re, 18, 115. 
 
 do T. SiSfken, 153. 
 Davy V. Davy, 164 1 275. 
 Daw V. Ely, 194. 
 Dawson v. Jay, 258. 
 
 do T. Raynus, 274. 
 Day V. Croft, 260. 
 do T. Day, 71 ; 176. 
 do T. Snee, 269. 
 Dean v. Allen, 110. 
 
 do T. Lethbridge, 136. 
 Deardon, Re, 57. 
 
 De Feucheres, t. Dawes, 127; 189. 
 De Geneve v. Hannon, 266. 
 De La Rue v. Dickenson, 194. 
 Delavante, Re, 339. 
 De Manneville v. De Mannville, 62. 
 Denison v. Curtis, 304. 
 do V. Devlin, 259. 
 Dennis, Re, 114. 
 Dent T. Basham, 54, 
 Dent V. Dent, 190. 
 DeTabley, Ld. Settled Estate, Re, 70, 
 Devaynes v. Robinson, 154. 
 
 do V. Morris, 157. 
 Devey v. Thornton, 207. 
 Dew V. Clarke, 206. 
 Dexter v. Cosford, 33 ; 161. 
 Dicker V. Clarke, 170. 
 Dickenson v. Duffil, 292. 
 Dickey v. Heron, 314. 
 Dickv. McNab, 315. 
 Dick V. Munden, 160. 
 Dickson v. Cook, 42. 
 
 do v. Draper, 1 53. 
 Dimes v. Wright, 49. 
 Dixon V. Gayfere, 161. 
 do. V. Tyner, 311. 
 Dobede v. Edwards,266. 
 Dobson V. Land, 232 ; 240. 
 Docker v. Somes, 228. 
 Dodson V. Samuell, 110. 
 Doe V. Hughes, 104. 
 do V. Read, 273. 
 do V. Ulph, 100. 
 Dolman, Re, 50. 
 Domville v. Lamb, 71. 
 Donald v Bather, 148. 
 Doody V. Higgins, 149, 
 Doubtfe;e v Elworthy, 260. 
 
 Dowler v. CoUis, 202. 
 
 Dowling V. Hudson, 272. 
 
 Drake v, Drake. 212. 
 
 Draper v. Manchester Rail Co., 191. 
 
 Drew V. Clifford, 49. 
 
 Drewry v. O'Neal, 328. 
 
 Drever v. Mandesley, 292. 
 
 Drummond v. Anderson, 213. 
 
 CO V. Tracey, 107. 
 Dryden v. Frost, 256. 
 Dudley V. Berczy, 327. 
 Dufaur, Re, 133. 
 Duffy V. O'Connor, 354. 
 Dugdale v. Johnson, 259. 
 Duggau V. McKay, 295. 
 Duncan v. Tarty, 34. 
 Duncombe v. Lewis, 163. 
 Dunt V. Dunt, 53. 
 Durell V. Pritchard, 73. 
 Durham, Earl of v. Legard, 300. 
 Durant v. Moore, 277. 
 Dutch WeBtIndiaCo.,v. Vanmoyses, 
 
 142. 
 Dyott r. Dyott, 292. 
 
 E. 
 
 Eades v. Harris, 145. 
 Eadie v. McEwen, 297. 
 Early v. McGill, 206. 
 Eastwood V. Lewis, 72. 
 Eccles, Re, 39. 
 Eden v. Earl of Bute, 212. 
 Edgcumbe v. Carpenter, 275. 
 Edge V. Duke, 163. 
 Edgson V. Edgson, 166. 
 Edmonds v. Foley, 192. 
 Edmunds v. Ackland, 220. 
 Edwards v. Bailey, 299. 
 
 do V. Burling, 327. 
 
 do V. Lawless, 49. 
 
 do T. Milbauk, 71. 
 Egg V. Dewey, 210. 
 Eggington v. Cumberlege, 49. 
 Eglinton, Lord, v. Lamb, 193. 
 Eidsforth v. Armstead, 104. 
 Electric Telegraph Co., v. Nott, 258. 
 EUertou v. Thirsk, 276. 
 Elliot V. Beard, 166. 
 Ellis V. Guitton, 71. 
 Ellison V. Thomas, 152. 
 Elmore, Re, 115. 
 Elmsley, Re, 57. 
 Elsey V. Adams, 211. 
 Ely, Dean & Chapter of, v. Edwards, 
 
 299. 
 \Ely, Dean of, v. Gayford, 148. 
 
XX 
 
 CASES CITED. 
 
 Ely V. Wilson, 275. 
 Emerson v. DalKon, 168. 
 do v. Emerson, 266. 
 England y. Tredegar, Ld., 110. 
 Engleheart v. Moore. 48. 
 English v. English, 340. 
 do T. Hayman, 298. 
 do Ee, 44. 
 Enthoven v. Cobb, 193. 
 Evans v. Coventry, 146 ; 172. 
 
 do T. Evans, 44; 210. 
 
 do Mxparte, 25. 
 
 do T. Lewis, 208. 
 
 do Re. 115. 
 
 do T. Root, 164 ; 275. 
 
 do T. Sanders, 71. 
 
 do V. Williams, 210. 
 Evely V. Chippendale, 292, 
 Everett v. Prytherg, 157. 
 Eyles v. Ward, 127. 
 Eyre v. Brett, 300. 
 
 do V. Hanson, 311. 
 
 do Re, 51. 
 
 do V. Saunders, 70. 
 
 Fairbanks, Re, 57. 
 Fairburn v. Pearson, 271. 
 Falqoner, Re, 340. 
 Fallows V. Ld. Dillon, 208, 
 Pane v. Richards, 299. 
 Parebrother v. Welcham, 275. 
 Parish v. Martin, 258. 
 Farrell v. Cruikshank, 205 ; 339. 
 
 do V. Stokes, 334. 
 Farringtou, Re, 158. 
 Farry v. Davis, l73. 
 Farwell v. Wallbridge, 277. 
 Faulkner v. Daniel, 155. 
 Fearer v. Williams, 19i. 
 Felkiu v. Ld Herbert, 194. 
 Fellojves v. Deere, 163. 
 Penden v. Stephens, 259. 
 Penhoulet v. Passavant, 157. 
 Pennal v. Brown, 256. 
 Penning v. Humphrey, 127. 
 Perne, Exparte, 17. 
 Perns, do 76. 
 Perrier v. Atwood, 194. 
 Field, Re. 51. 
 
 do v. Robinson, 211. 
 
 do V. Titmus, 244. 
 Pinch V. Brown, 232. 
 Findlay v. Lawrence, 266; 267. 
 Finn, Re, 62. 
 Fisher T. Coffey, 256. 
 
 Fisher, Re, 51. 
 
 Fiskeu t. Wride, 45. 
 
 Pitch v. Lockport, 277. 
 
 Fitzgerald v. Upper Canada Baildiog^ 
 
 Socieiy, 216. 
 Fitzpatrick v. Wilson, 22. 
 Flight V. Bolland, 144. 
 Flintoff V. Haynes, 245. 
 Flockton V,. Peake, 191. 
 
 do T. Slee, 299. 
 Flower v. Newton, 48 ; 49. 
 Fluker, Re, 50. 
 Foley V. Griffith, 126. 
 Foley, Re, 50. 
 Forbes v. Adamson, 324; S35. 
 
 do T. Peacock, 104. 
 
 do V. Ross, 225. 
 
 do V. Tanner, 190. 
 Ford T. De Pontes, 193. 
 do T. Dolphin, 193. 
 do V. Tennant, 194. 
 Forman v. Gray, 200. 
 Forrester, Re, 339. 
 Forsyth, Re, 48; 51; 5&. 
 Porster v. Harvey, 186. 
 
 do T. Menzies, 171 ; 30J. 
 
 do Re, 57. 
 Foster's Settled estate, 70. 
 Foster v. Thompson, 161. 
 Fowler v. Bayldon, 148 ; 15S. 
 
 do T. Bonlton, 196. 
 
 do T. Marshall, 339. 
 
 do v. Reynal, 1 54. 
 
 do V. Reynell, 208, 
 Francklyn v. Colborne, 136. 
 Francome T. Francome, 256. 
 Frankland v. Overend, 188. 
 Prankliahe t. Ball, 72. 
 Praser v. Bens, 312. 
 Fraser v. Praser, 257 ; 258. 
 Praser v. Sutherland, 154. 
 Freeman v. Butler, 194. 
 Freeman, Craigie & Proudfoot, Re, 
 
 53. 
 
 do V. Pennington, 300. 
 Frith V. Bush, 170. 
 Prowd T. Stiliard, 49. 
 Fuller, Re, 71. 
 Puller V. Taylor, 277. 
 FuUertou v. xaartin, 299. 
 Pulton V. Clark, 155. 
 Fulton T, Gilmour, 187; 188. 
 Fussel V. Blwin, 155. 
 Pyfe T. Arbuthnot, 359. 
 Pyson, Re, 56. 
 
CASES CITED. 
 
 XXI 
 
 ©. 
 
 Galbraith v. Armstrong, 298. 
 Galloway v. Corporation of London, 
 
 51. 
 Gardner v. Garrett, 339. 
 
 do V. Marshall, 285. 
 Garland v. Garland, 272. 
 Garlick v. Lawson, 859. 
 Gascoigne t. Chandler, 199. 
 Gates T. Beechland, 256. 
 Gathercole v. Wilkinson, 166. 
 Gaudee v. Stansfield, 1 94. 
 GaultT. Spencer, 291, 
 Geddes v. Allan, 300. 
 Gedye. Re, 62. 
 Gee V. Cottle, 166. 
 do V. Gnrney, 212. 
 Gelhard v. Hornby, 332. 
 George v. Whitmore, 34. 
 Geskett, v. Chambers, 171. 
 Gibb v. Morphy, 124; 295. 
 Gibraltar and Malta Banking Co., 
 
 Re, 257. 
 Gibson v. Jeyes, 15. 
 
 do T. Ingo, 136; 163. 
 
 do V. Lord Mountford, 274. 
 
 do V. 'Wills, 148. 
 Gidings v. Gidings, 293. 
 Gillespie v. Gillespie, 266. 
 Gillespie v. Alexander, 245. 
 Gillrie, Re, 63. 
 Gilmour V. Matthew, 172; 178. 
 
 do T. Meyers, 332 . 
 Girdleston v. Lavender, 324. 
 Glazbrook t. Gillatt, 260. 
 Glenham v. Stutwell, 300. 
 Glennie v. Glennie, 13. 
 Glover, Exparte, 76. 
 
 do T. Webber, 145. 
 GoddardT. Parr, 157; 256. 
 Goddayv. Sleigh, 211; 267. 
 Godfrey t. Tucker, S03. 
 Golden v. Newton, 180. 
 Goldsmith v. Stonehewer, 153. 
 Goodale v. Gawthorn, 262. 
 Goodfellow V. Hambly, 172; 177; 
 
 178. 
 do Re, 71. 
 Goodman t. Whitcomb, 271. 
 Goodwin v. Gosnell, 137. 
 Goodwin's Settled Estate, 70. 
 Gordon v. Calvert, 274. 
 do T. Johnson, 186. 
 Gosling T. Gosling, S59. 
 Gould V. Burritt, 253, 
 
 do T. Tancred, 296. 
 
 Goulder V. Camm, 165. 
 Gouthwaite v. Rippon, 164 ; 165, 
 Graham v. Chalmers, 188. 
 
 do V. Davis, 300; 327. 
 Grange v. Conroy, 175. 
 do V. Cooper, 191. 
 Grant v. Ellis, 288. 
 Greaves v. Greaves, 179. 
 Green v. Adams, 336. 
 
 do V. Aimey, 192. 
 
 do V. Jenkins, 296. 
 
 do Re, 110 ; 114; 115. 
 Greene, Re, 70. 
 
 do T. Bridges, 100. 
 Greenshield v, Blackwood, 333. 
 Greenwood v. Atkinson, 188. 
 
 do V. Sutherland, 359. 
 Gregg V. Taylor, 150. 
 Gregory v. Wilson, 100. 
 Gregson, Re, 192. 
 Greig v. Green, 179. 
 
 do V. Somerville, 245. 
 Gresley v. Mousley, 194. 
 Grey Coat Hospital, Governors of, 
 
 V. Westminster Commissioners, 
 
 171. 
 
 do V. Jenkins, 70. 
 Gridley v. Austen, 49. 
 Griffith V. Griffith, 272 ; 274. 
 Griffiths V. Cowper, 170. 
 Grimshaw v. Parks, 253 ; 330. 
 Groom V. Atty.-Gen., 175. 
 Groome, Be, 62. 
 Grotev. Bing, 215; 272. 
 Grove v. Lane, 148. 
 Grove v. Samson, 50. 
 Groves v. Groves, 191. 
 Gwynne v. Watney, 262. 
 
 H. 
 
 Hagerty v. Hagarty, 12. 
 Haig V. Grey, 154. 
 Haigh V. Oussey, 49 . 
 Hair, Re, 50; 51; 53. 
 Hakewell, Exparte, 62. 
 
 do V. Webber, 210. 
 Haldame v. Bckford, 304. 
 Hall V. Austin, 55. 
 
 do V. Olive, 298. 
 
 do v. Coldwell, 27 , 28 ; 29, 
 
 do V. Green, 266. 
 
 do Re, 137. 
 Hamilton v. Board, 276. 
 do V. Brewster, 274. 
 do T. Howard, 329. 
 Hampson v. Hampson, 193, 
 
XXll 
 
 CASES CITED. 
 
 Hammond v. Walker, 170. 
 Handford v. Hanford, 212. 
 
 do V. Storie, 210. 
 HanesT. Ball, 180. 
 Hanman t. Elley, 153. 
 Hansel], Re, 24. 
 Hansard v. Hardy, 211. 
 Hanslip v. Kitten, 158 ; 191. 
 Harding, Re, 58. 
 Harding v. Tingey, 2Y5. 
 Hardwicke v. Wriglit, 246. 
 Hare T. Smart, 175. 
 Hare, Re, 60. 
 
 Eargrave t. Hargrave, 84; 122. 
 Hargrave's Settled Estate, Re, 70. 
 Harkness v. Conway, 22. 
 Harper v. Harper, 354. 
 
 do Re, 57. 
 Harris v. De Tastet, 244. 
 
 do T. Ingledew, 205. 
 
 do T. Lewis, 258. 
 
 do T. Meyers, 42. 
 
 do Re, 256. 
 
 do Sturt, 50. 
 Harrison v. Jones, 28. 
 
 do V. Mayor of Southampton, 
 
 261. 
 Hartford v. Lloyd, 192. 
 Hartland v. Dancocks, 34. 
 Hartley, Re, 53 ; 55. 
 Hart T. Montefiore, 190 ; 244. 
 
 do T. Tulk, 272- 
 Harvay v. Smith, 291. 
 Harvey v. Clark, 70. 
 
 do T. Renon, 209. 
 Harvie t. Ferguson, 259. 
 Hasler V. Hollis, 187. 
 Hatch V. Searles, 245. 
 Hatt V. Park, 331. 
 Hawe T. Hunt, 72. 
 
 do V. Viokers, 148. 
 Hawes v. Bamford, 256 ; 275. 
 Hawkips, Re, 47. 
 Haven *v. Middleton^lOO. 
 Hazard v. Lane, 50. 
 Headden v. Emmott, 148. 
 Eeald v. Hay, 170. 
 Healy, Re, 26. 
 
 Heathcote v. Hulme, 238, 231. 
 Heath t. Chapman, 304. 
 
 do V. Lewis, 304. 
 Heeley, Re, 315. 
 Heighington v. Grant, 228. 
 Heley v. Lord Bexley, 148. 
 Homing t. Wilson, 52. 
 Henderson t. Mclver, 242. 
 Henna v. Dann, 244. 
 
 Henning, .Eaiparfe, 57; 58. 
 
 do T. Wilson, 52. 
 Henry t. The Commercial Bank of 
 
 Canada, 44. 
 Herchmer v. Benson, 164. 
 Herritt t. Reynolds, 361. 
 Heslop T. Metcalf, 136. 
 Heward v. Ridout, 312. 
 
 do V. Watson, 175. 
 Hewitson v. Todhunter, 148. 
 Hichens v. Congreve, 163. 
 Hiohins v. Tate, 48. 
 Hicks r. Sallitt, 237 ; 238. 
 Higgins V. Woolcot, 53. 
 Hiles V. Moore, 272. 
 Hillary, Re, 25. 
 Hill V. Hoare, 276. 
 do f. Maguire, 160. 
 do T. Rimell, 258. 
 Hills V. MoRae, 154. 
 Hilton V. Earl Granville, 277. 
 Hinde v. Morton, 298. 
 Hindley v. Emery, 72. 
 Hinton, Re, 50. 
 
 Hipkins v. Amery, 240. ^ 
 
 Hislop V. Wykeham, 260. 
 Hithcock V. Jaques, 199. 
 Hoare v. Newland, 240. 
 
 do Re, 70. 
 
 do V. Wilson, 191. 
 Hobhouse v. Holcombe, 273. 
 Hobler, Re, 260. 
 Hobson V. Seawood, 300, 
 Hoby T. Hitchcock, 291. 
 
 do V. Pritchard, 50. 
 Hodge V. Churchward, 202. 
 
 do Re, 25. 
 Hodkinson v. French, 837. 
 Hodson V. Sherwood, 273. 
 Hoghton V. Houghton, 208. 
 Holcombe v. Trotter, 166. 
 Holcomb V. Leach, 320. 
 Holden v. Waterloo, 277. 
 Holford V. Yate, 332, 
 Holland, Re, 51. 
 Holmes, Re, 15. 
 Hollywood V. Waters, 261. 
 Hood V, Cooper, 122. 
 Hooper v. Gumm, 191 ; 193. 
 
 do Re, 115. 
 Hope V. Carnegie, 170. 
 
 do V. Pox, 146. 
 
 do V. Hope, 62 ; 170 ; 206 ; 859. 
 
 do V. Liddell, 192. 
 Hopkiuson v. Lord Burleigh, 193. 
 Horlock V. Smith, 232. 
 Horry v. Calder, 170, 
 
CASES CITED. 
 
 XXIU 
 
 Horsley v. Fawcett, 154. 
 Horton v. Br'oklehurst, 199 ; 304. 
 Housten t. Briscoe, 300. 
 Howard v. Chaffers, 208. , 
 Howard v. Macara, 332. 
 
 do T. Robinson, 194. 
 Howcntt V. liees, 196. 
 Howell T. Howell, 237 ; 242. 
 Howe T. McKernon, 194. 
 Howkins v. Bennett, 170; 171. 
 Howland v. Grierson, 168. 
 Howlett V. Wilbraham, 355. 
 Hubbard, Re, 57 ; 286. 
 Hughes T. Evans, 142. 
 
 do Exparte, 241. 
 
 do V. Jones, 210. 
 
 do V. Williams, 189 | 234. 
 Hume V. Burton, 16. 
 Hunter T. Daniel, 300 . 
 Hunter v. Mountjoj, 260. 
 Hungate t. Gaseoyne, 296. 
 Hunt V. Lever, 170. 
 ■ Hurle's Settled Estate, Re, 70. 
 Hurst V. Hurst, l70; 171. 
 Hurst T. Padwick, 291. 
 Husband, Re, 256. 
 Hutchison, Re, 70. 
 Hyder v. Coleman, 159. 
 Hjman v. Roots, 31 ; 290. 
 
 I. 
 
 nderton. Re, 50. 
 
 Inoliley v. Allsop. 298. 
 
 Incorporated Society, Ac, v. Rich- 
 ards, 233. 
 
 Ingilby v. Shafto, 194. 
 
 Ingle, Re, 51. 
 
 Inglis V. Campbell. 182. 
 
 Irving V. Munn, 338. 
 do V. Strait, 172. 
 
 Jackes, Re, 24. 
 Jackson v. Jackson, 13. 
 
 do V. Riga Rail. Co., 299. 
 do V. Turnley, 359. 
 do V. Ward, 302. 
 Jacob, Re, 115. 
 James v. Aston, 148. 
 do V. Biou, 269. 
 do Exparte, 239. 
 do T. Rice, 180; 181. 
 do v. Robertson, 354. 
 do V. Wertheimer, 168. 
 Jay V. McDonell, 216 ; 253. 
 
 Jebb V. Tugwell, 299. 
 Jefferson v. Warrington, 50. 
 Jeffreys v. Evans, 48 
 Jenkins v. Bryant, 127 ; 136. 
 Jenkyn v. Bushby, 194. 
 Jennings v. Merton College, 187. 
 Jenour v. Jenour, 301. 
 Jerdein v. Bright, 160. 
 Jervis v. White, 126 ; 360. 
 Jervoise v. Clai%, 299. 
 Jesse V. Bennett, 151. 
 Jessop, Re, 56. 
 Johnson v. Ashbridge, 832. 
 do V. Barnes,- 136. 
 do T. Cowan, 162. 
 do V. Leek, SOU. 
 do V. Cass, 253. 
 do V. Tucker, 134. 
 Joint Stock Discount Co., Re, 191. 
 Jones V. B_ank of Upper Canada, 44. 
 Jones V. Batten, 285. 
 
 do V. Brandon, 171 ; 177. 
 
 do Foulk, 148. 
 
 do V. Foxall, 226 ; 227. 
 
 do V. James, 150. 
 
 do V. Jones, 134; 194. 
 
 do V. Lord Claremout, 163. 
 
 do V. Morgan, 265. 
 
 do V. Powell, 144. 
 
 do Re, 56. 
 
 do V. Roberts, 259. 
 
 do T. Taylor, 185. 
 
 do V. Turnbull, 256. 
 Jupp V. Geering, 300. 
 
 K. 
 
 Kay V. Hargreaves, 194. 
 Kay T. Sanson, 1 34. 
 Kaye, Re, 63. 
 Keaehie v. Buchanan, 166. 
 Keeling V. Hosking, 158. 
 Keene v. Ward, 49. 
 Kella-'vay v. Johnson, 154. 
 Kelly V. Ardell, 1 81. 
 
 do V. Macldem, 273; 266; 267. 
 
 do T.Smith, 195. 
 Kemp T, Latter, 180. 
 Kemp V. Mackrell, 301. 
 Kennedy, Re, 24. 
 
 do V, Sears, 275, 
 Kensington v. Bouverie, 234. 
 Kerwick v. Kerwiok, 250. 
 Kerr v. Clemow, 175. 
 Kerr, Re, 52 ; 54. 
 
 do V. Murray, 154. 
 Kidd V. Cheyne, 152. 
 
XXIV 
 
 CASES CITED. 
 
 Killaly T. Graham, 205. 
 Killing T. Killing. 259. 
 Kimptoii T. Eve, 276. 
 King V. Bryant, 180. 
 
 do T. Connor, 254 ; 331. 
 
 do T. Freeman, 2T5; 327. 
 King, The, v. Sheriff of Monmouth 
 
 44 
 King of Spain v Machado, 140. 
 Kiugham v. Maisey, 275. 
 Kingston t. Monger, 173. 
 Kinneir, Ee, 57. 
 Kinsman v Kinsman, 161. 
 Kirchoffer t. Stafford, 334. 
 Knott V. Cottle, 226; 311. 
 Knottinger v. Barber, 335. 
 Knowles v. Chapman, 240. 
 Knox T. Brown, 211. 
 
 Laing t. Avery, 79. 
 Laing v. Matthews, 78. 
 Laing's Settled Estate, Re, 70. 
 Lake v. Skinner, 205. 
 Lamb v. Danby, 127.; 860. 
 Lambert v. Hutchison, 145. 
 
 do T. Turner, 354. 
 Lamont v. Lamont, 239 ; 243. 
 Lancashire East Rail. Co , v. Hatt 
 
 tersley, 257. 
 Lancaster v. DeTrafford, 73. 
 Lancaster t. Thornton. 145.' 
 Land Credit Society, Re, 194. 
 Lane v. Glenny, 48. 
 Langdale v. Gill, 304. 
 Langdale, Lady, v. Briggg, 359. 
 Langley v. Fisher, 157. 
 Lanham t. Pirie, 149, 
 Larkin v. Armstrong, 253. 
 Lashley v. Hogg, 210 ; 244. 
 Lash v. Millar, f 99. 
 Laslett If. Cliffe, 324. 
 Latter v. Dashwflod, 232, 
 Laurason v. Fitzgerajd, 31. 
 Lautour v. Holcombe, 293. 
 Law V. London Indisputable Policy 
 
 Co., 191. 
 Lawrance v. Campbell, 193 
 Laurason v. Fitzgerald, 31 ; 290. 
 Lazarus v. Mozley, 191. 
 Lazier V. Ranney, 338. 
 Leather Cloth Co. v. Hirchfield, 262 
 Ledyard r. McLean, 216; 253. 
 Lee V. Hamerton, 193. 
 do V Lee, 304, 
 Lee cS: "Waterhouse, Ee, 39. 
 
 Lees, Re, 52 ; 55. 
 Legge, Re, 70. 
 
 do T. Winatanley, 171. 
 Leigh, Exparte, 25. 
 Leishman v. Eastwood, 292. 
 Leite t. Vicini, 180. 
 Leith v. Irvine. 241. 
 Lenaghan v. Smith, 151. 
 Le Neve v. Le Neve, 101. 
 Leslie v. Thompson, 71. 
 Lester v. Archdale, 165; 265. 
 Lester v. Lazarus, 48. 
 Lett V. Randall. 188. 
 
 do Ke, 50 ; 57. 
 
 Lewera v Earl of Shaftesbury, T2, 
 Lewes v. Morgan, %l6r 
 Lewin, Ee, 50. 
 Lewis V. Primrose, 4B, 
 
 do Re, 2L 
 Ley V. Brown, 137. 
 Ley V. McDonald, 277. 
 Leyeester v. Morris, 299. 
 Lillie V. Lillie, 292. 
 Lind V. Isle of Wright Perry Co. \^i 
 Lingren v. Lingren, 354. 
 Lister v. Leather, 211. 
 Lloyd V. Jones, 233. 
 
 do V. Lloyd, 1-79. 
 
 do V. Loaring 142. 
 
 do V. Smith, 154. 
 
 do V. Solicitors' Life Ass., (Jo. 135 
 
 do V. Wait, 223. 
 Lookett V. Carey, 192. 
 Lockey v. Lockey, 2i8. 
 Lockhart V. Hardy, .50. 
 Lodge V. Pritchard, 246. 
 Lomax v. Hide, 241. 
 London, Birmingham and Bucking' 
 
 ham Railroad Co., Re, 360. 
 London Gas Co, v. Spotiswood, 
 
 155. 
 London v. London, 167. 
 Longstaff's Settled Estate, Re, .70. 
 Long V. Storie, 148. 
 Lord V. Colvin, 261. 
 Jjord V. Purchase, 271. 
 
 4o Ee, 317. 
 Lornenz, Re, 114 ; 115. 
 Loveday, E^, 76, 
 Lovendenv. Miefora,J08. 
 Lowes V. LOiWeis, 2.88. 
 Low V. Mornisosn, 85; eg, 
 do V. Williams, 134. 
 Lowiten v. Jfayor of Colchester, 300 
 Ludgatery. Chaanell, 274. 
 Lund V. Blauchard, 151. 
 Luther y. War4, %%%. 
 
CASES cited; 
 
 XXV 
 
 Lyons V. Blenkifl, 62. 
 
 Macara v. Gwynne, 130. 
 
 Macdonald y. Maofarlane, 299. 
 
 Macdonell v. SlcKay, 191. 
 do V. Stfeet, 164. 
 
 Mackenzie v. Mackenzie, 256. 
 
 Macklem v. CumJning's, 359. 
 
 Macnamara v. Jones, 242. 
 
 Slacpherson v. Macpherson, 41, 
 
 Sfaerea v. SmitB, 190. 
 
 Maddison v. Chapman, 341. 
 do T. Skein, ft. 
 
 Magiay f. Min«s Royal Co , 274. 
 
 Major t. Arnott, 160. 
 do f. Major, 121 ; f22. 
 
 Makepeace v. Eoinieux, 157. 
 
 Hair ir. Keer, 327. 
 
 Malcolifl r. Malcolm, 184. 
 
 Malcolm t. O'Callaghan, 273. 
 
 Male r. Eoucter, 42. 
 
 Malins r. 6reen-*rood, 300. 
 
 Malloch T. PiBhey, 2Sf. 
 do V. Still, 306. 
 
 Manby v. Bem'erkff, 191 ; 192;- 21:1; 
 
 291. 
 Main«hester v. Leeds Eafl. Co., i58. 
 Manjey y. Williama, 119 i S3i. 
 Manning r. Bierley, 269'. 
 Manselv. Feeney, 194; ISS, 
 Mant .V. SufitJ], 49. 
 Manton t. R(je., 210. 
 Marner, Re, :70. 
 Marriott v. Anchor Co., 193. 
 Marsh y. Attorney--<Jeneral, 115. 
 do T. Beard, 291. 
 do <v. Keith, 19S-, 35:9. 
 Martens v. Haigh, 1-92. 
 Martin t. Headon, 12, 
 Martia v. Mitchell, 30. 
 do T. Novman, 23§. 
 do Re, 137. 
 'Massey, fie, 56, 
 Kasters -v. Sraban, 2?7. 
 Mason v.Seney,:338. 
 Mather v. Short, 196. 
 Matheson T. Olarke, 241. 
 Mathew v. Brise, 237 ; 238, 
 Matson v. Swift, 260. 
 Mavety y. Montgomery, 357. 
 MaTOr V. Dry, 304. 
 Maxwell T. Maxwell, 13. 
 Mayberry v. Brooking, 152 ; 155. 
 May V. Biggenden, 53. 
 ,^<do 7. Princepa, -ZSg. 
 
 May V. Selby, 164< 
 Meadon v. Sealey, 272. 
 Meek v. Ward, 256. 
 Melioruchy v. Melioruchy, 292. 
 Melling t. Melling, 145 
 Melish v. Williams, 296, 
 Menziers v. Ridley, 340'. 
 Merill t. Ellis, 167. 
 Merry's Estate, Re, 70 . 
 Michell, Re, 115. 
 Middleton v. Dodswell, 271. 
 Middleton T. Greenwood, 73. 
 Miles, Re, 114. 
 Millar v. McJTaugbten, 341. 
 Miller t. Attorney General, 71 y 
 
 do V. Gordon, 176. 
 
 do T. MacNaughten, 2Z0. 
 
 do r. Miller, 269. 
 
 do Re, 15. 
 Mill T. Hill, 239 ; 242. 
 Miligan v Mitchell, 163 ; 304. 
 Mills V. Dickson, 331. 
 Milne, Re, 17; 76. 
 Miltown, lid r. Stnart, 257. 
 Mitchell V Richie, 26.' 
 Mitchell V. Crook, 121. 
 Mobbs, Re, 50. 
 Mockett, Re, 1 14. 
 i Moffatt V. Hyde, 297. 
 
 do T. Ruddle, 215 ; 29T. 
 do T. White, 338. 
 Mole T. Smith, r42. 
 Mollett T. Enequist, 274 ; 304. 
 Montgomery v. Calland, 233, 
 Mouy penny T. Bristow, 237. 
 
 Dering, 164; 165 J 
 Mcynington, 194. 
 
 do 
 
 2?5. 
 Monyp*nny v. 
 UornVf Re, 62 . 
 
 do f. MBitft, iSs. 
 Morgan r. /ones, 1-66. 
 
 do r, Hi'ggilis, 4fl. 
 
 do V. Seu^aihore, 3t)0. 
 Morley v. MaMl'ews, 254'. 
 'Mftrnington, Eail of, v. Smith, 265j 
 
 :269. 
 ■JJg^BJUgton v. MornJSgSo*, W4. 
 MarpJ\y ,^ Kerr, 49. 
 Morris.y. jEieNevre, 2971 
 MosleyjJT. \WJard. 225. 
 Moss V. Angl«> jEgyptian JfatigSfion) 
 
 Co.,i83f 
 Moss, ge, &1. 
 
 Mosty4),.T. ^jnpiasBel, 299. 
 MorsJiiead, t. ReynoUds, 245. 
 Morrj^pp.T. McLean, 275. 
 
XXVI 
 
 CASES CITED. 
 
 Mount, Exparte, 19. 
 Mountain t. Porter, 331. 
 Muggeridge, Ee, 114. 
 MulhoUand v. Brent, 266. 
 
 do V. Hamilton, 294. 
 Muncli V. Cockerill, 151. 
 Munn T, Glass, 169. 
 Munro v, Keiley, ^5. 
 Murney v. Knapp, 172. 
 ■Murphy t. Lamphier, 24. 
 Murray T. Barlee, 50. 
 
 do V Prank, 14. 
 
 do T. Palmer, 237. 
 Morrow t. Wilson, 50 ; 293. 
 Musgrave t. Parry, 143. 
 Mussell T. Morgan, 121. 
 Muttlebury v. Hayward, 136. 
 Mynn v. Hart, 292 . 
 McAlpin T. Young, 313. 
 JJcCann t. Eastwood, 44. 
 licCarty T. Wessels, 172; 178'. 
 McCleneghan v. Bucianan, 196 ; 
 
 262. 
 McGulloch T. McOulloch, 13. 
 McDonald v. Garrett, 24. 
 
 do V. McDonald, 42. 
 
 do r. Putman, 193. 
 
 do Ee. 24. 
 
 do T. Richardson, 228. 
 
 do V. Wright, 253. 
 
 McDonell v. Street, 275. 
 McGachen v. Dew, 155. 
 McGillivrayv Oumeron, 334. 
 McGregor T. Keiley, 49. 
 Mcintosh V. Great Western Eail Co 
 192; 360. 
 
 Mclntyrev. Counell, 155. 
 McKay t, McKay, 13. 
 McKay, Re, 51. 
 McKenna v. Evertt, 206. 
 McKinnon t, McDonald. 187. 
 McLaughten, v. Whiteside. 263. 
 McLean t Beatty, 45. 
 
 do T. Dawson, 148. 
 MoLellan v. Jacobs, 324. 
 McLeod V. Annesley, 150. 
 
 do V. Miller, 31 ; 289 ; 290. 
 MoMaster v. Callaway, 277. 
 McMichael r. Thomas, 327. 
 McMutrichT, Hogan, 172. 
 McNabb v. Gwynne, 267. 
 McNamara v. Jones, 242. 
 McNaughton t. Hasker, 211. 
 McNnlty, Re, 74 
 MoPherson v. McOabe, 143. 
 McSherry, Ee, 14. 
 McVeagh, Ee, 115 ; 190. 
 
 N. 
 
 Nabob of the Carnatic v. East India 
 
 Co , 140. 
 Nail V. Punter, 188. 
 Nalder v. Hawking, 144. 
 Nanny v. Edwards, 331. 
 Neale v. Withrow, 205. 
 Neate, Re, 57. 
 Needham v. Oxley, 72. 
 Nelson v. Booth, 232. 
 
 do V. Olarkson, 202. 
 
 do V. Seaman, 163. 
 Nevieux v. Labadie, 338. 
 Neville v. Fitzgerald, 205. 
 Nevilles v. Nevilles, 237; 242. 
 Newbury v. Harrison, 73. 
 Newberry, Re, '63. 
 Newby v. Harrison, 73; 276. 
 Newburgh v. Bickerstafife, 237: 
 Newenham v. Pemberton, 167. 
 Newman, Re, 51 ; 57. 
 Newton, Ee, 256. 
 
 do T. Ricketts, 50, 
 
 do V. Thompson, 133. 
 NichoU T. Elliott, 192. 
 
 do V. Jones, 191. 
 Nichols V. McDonald, 253. 
 Nicholson v. Gibb, 304. 
 
 do T. Peile, 161 ; 165. 
 do Re, 52. 
 
 Noble V. Stow, 298. 
 Novel V. Ward, 251. 
 Nokes V. Gibbon, 261. 
 
 do V. Wharton, 57; 58. 
 Nolan V. Nolan, 13. 
 Norris v. Bell, 341. 
 
 do V. DeNeve, 296. 
 North V. Huber, 192. 
 Norton v. Hepworth, 27t ; 301. 
 Norway v. Rowe, 158. 
 Notter v. Smith. 276. 
 Notiinger v. Barber, 835; 
 Nugent V. Tetzera, 63, 
 Nudel V. Elliott, 339. 
 
 0. 
 
 O'Brien v. Lewis, 48. 
 
 do V. Maitland, 354. 
 Ogdens v. Battams,_ 246. 
 O'Grady v. Munro, 291. 
 Oldale V. Whitcher, 291. 
 Oldfield V. Cobbett 259. 
 Oliver v, Dickey, 206. 
 Olive, Re, 70. 
 O^Lone v. O'Lone, 22. 
 
CASES CITED. 
 
 XXVll 
 
 Ormsby, Re, 273. 
 
 Ottey V. Peosara, 251. 
 Owen V. Homan, 271, 
 Owens V. Dickenson, 244. 
 Oxenden v Compton, 14. 
 Oxford V. Bailey, 328. 
 
 Page V. Bennett, 100. 
 Paine v. Chapman, 184, 
 Pallard v. Doyle, 259. 
 Palmer v. Aylesbury. Ld., 34. 
 
 do V. Mitchell, 228. 
 Pant East Mining Co. t. Merry- 
 weather, 160. 
 Panton v. Labertoucbe, 293. 
 Paragon and Spero Mining Co., Re. 
 
 171. 
 Parby's Settlement, Re, 70. 
 Pare v. Clegg, 153. 
 Parker v. Morrell, 34; 212. 
 
 do V, Nickson, 304. 
 Parnell v. Kingston, 149. 
 Parry, Re, 70. 
 Parsons v. Gingell, 235. 
 
 do V. Early. 199. 
 Partington v. Hailey, 266. 
 
 do V. Reynolds, 242. 
 Pascoe V. Swan, 239 ; 242. 
 Passmore, Re, 50 ; 292 
 
 do V. Mcholls, 171. 
 
 Patch V. Ward, 193; 194. 
 Paton, Re, 15; 166; 213. 
 Pattison, Re. 341. 
 Patton, Re, 15. 
 Pawlett V. Delaval, 142 . 
 Payne v. Parker, 153, 
 Peach, Re, 52. 
 Peacock v. Sievier, 163. 
 Peareth v. Marriott, 71. 
 
 do T. Peareth, 135. 
 Pearson v. Campbell. 171, 
 
 do V. Ward, 206. 
 
 d(i V. Wilcox, 256. 
 'edder v. Pedder, 300. 
 
 Ped 
 
 Peile, Re, 53. 
 
 do V. Stoddart, 194. 
 PclhamLd. v. Duchess of Newcastle, 
 
 .317. 
 Pender, Re, 49 , 54. 
 Penkethara v. White, 193. 
 Penner v. Carniff, 328. 
 Penney V. Goode, 193. 
 Penniail v. Harlone, 100. 
 Penning. on v. Ld. of Munoaster, 
 
 251. 
 
 Penny v. Avison, 228. 
 
 do V. Francis, 340. 
 Percival v. Caney, 188. 
 Perkins v. Plebs, 172. 
 
 do Re, 50. 
 Perkins v. The National Assurance 
 
 and Investment Association, 44. 
 Perks V. Stottart, 261. 
 Perrott v. NoveUi, 291. 
 Peers, Re 53. 
 Perry V. Howell, 340. 
 
 do V. Knott, 154. 
 
 do V.Philips, 123; 296. 
 Peterborough r Conger, 166, 
 Peters v. Rule 34. 
 Petroleum Co, Re. 171. 
 Rett's Will, He, 114. 
 Peyton's Settlement, Rs, 115. 
 Phelps T. Prothero, 187. 
 Philby V. Hazle, 51. 
 Phillips V. Holmer, ] 94. 
 
 do V. Phillips. 294. 
 
 do V. Prentice, 250. 
 Phillipsou V. Gatty 154. 
 Phippen v. Brown, 299. 
 Phipps V. Daubeny, 49, 
 Pickauce, Re, 256. 
 Pickford v. Brown, 299. 
 Pierson v. Barclay. 1 54. 
 Pince V. Beattie, 51. 
 Pinfold V Pinfold, 267. 
 Piper V. Giitens, 266. 
 Pipe V. tihafer, 833. 
 Pitt V. Shewin, 100. 
 Playter v. Anderson, 291. 
 Pollard ¥. Doyle, 2.i8. 
 Pomfret v. Windsor, 205. 
 Port Darlington, Earl of, t. Darner, 
 
 259. 
 Porter, JExparte, 157. 
 Portman v. Paul, S'iS. 
 Potts T. Leighton, 273. 
 Potts, Re, 70. 
 Poulton, Re, 21. 
 Powell V. Martin. 210. 
 
 do V. Oakley, 70. 
 
 do V. Walworth, 220. 
 Powers V. Merriman, 333. 
 Pratt V. Barber, 163. 
 do V. Walker, 253. 
 Prentice y. Brennan, 239. 
 
 do V. Bunker, 176 ; 205. 
 
 do V. Prentice, 149. 
 Preston V. Dickenson, 173. 
 
 do V. Tubbin, 161. 
 Price V. Dewhurst, 294. 
 do T. Webb, 131 ; 161. 
 
xxvm 
 
 CASES CITED. 
 
 Prince v. Howard, 121 ; 122. 
 Prince of Wales Co. v. Palmer, 148 
 Proctor V. Grant, 196. 
 Proudfoot V. Thompson, 266. 
 Pugh, Re, 50 ; 52 ; 57. 
 Purdy V. Ferris, 266. 
 Palteney v. Shelton, 277. 
 Pjcroft V. Williams, 171. 
 
 Quarrell v. Beckford. 64 ; 240. 
 Quiu V. Eatclifife, 191 ; 194. 
 
 R. 
 
 Eadclyfife v. Duffy, 333. 
 
 Radenhurst v. Reynolds, 297. 
 
 Eae V. Shaw, 333. 
 
 Rainey v. Dickson. 171. 
 
 Ramsbottom v. Freeman, 272. 
 
 Ranee, Re, 57. 
 
 Ranger t. Great Western Rail. Co , 
 191. 
 
 Rana v. Lawless, 143 ; 292. 
 
 Ransom. Re, 51. 
 
 Raphael v. Boem, 224 ; 226. 
 
 Ratcliffe v. Roper, 136. 
 
 Rattray v. Bishop, 276. 
 do V. George, 157. 
 
 Rawlins v. McMahon, 1 48. 
 
 Rawlinson v. Moss, 136. 
 
 Reed v. Barton, 170. 
 do V. Prest. 153. 
 
 Eees V. Jacques, 266. 
 
 Reeve v. Hodson, 34. 
 
 Regina v. Mason, 16. 
 
 Reid V. Baldwin, 185; 190. 
 do v. Lang-lois, 193. 
 do V. Middleton, 272. 
 
 Reilley v. Reilley, 110. 
 
 Remnant, Re, 62. 
 
 Rendall v. Rendall, 271. 
 
 Eendle v. Metropolitan and Provin- 
 cial Bank, 262. 
 
 Rex V. Roberts, 16. 
 
 Reynals v. Caswell, 49. 
 
 Reynolds v. Godlee, 193 ; 194. 
 do r. Pitt, iOC. 
 
 Rhodes v. Nield, 192. 
 
 Rice T. George, 266 ; 268. 
 
 Richards, Exparte, 21. 
 do T. Perkins, 271. 
 do V. Scarboro' Market Co. 
 136. 
 
 Richardson v. Beaupre, 190, 
 do T. Hastings, 193. 
 
 Ridgway v. Darwin, 15. 
 Rigg V. Wall, 210; 211. 
 Rigney v. Fuller, 325. 
 Roaf V. Topping, 293. 
 Roberts v. Lucas, 49. 
 
 do V. Snell, 100. 
 Robertson v. Southgate, 300. 
 Robinson t. Cumraing, 232. 
 do V. Lowater, 104. 
 Robson V. Flight, 194. 
 
 do T. Whillingham. 73. 
 Rochester v. Lee, 34. 
 Rocke V. Hart, 225. 
 Rodger v. Roger, 314. 
 Rogers v. Hooper, 199. 
 
 do V. Rogers, 163. 
 Rolfev. Harris,: 100. 
 Rooke V. Ld. Kensington, 359. 
 Ross T. Hayes, 135 ; 166; 177, 
 do T. Perrault, 264. 
 do T. Steele, 32. 
 Rowlatt V. Cattell, 258. 
 Rowley, Re, 21. 
 Rucker v. Scholefield, 298. 
 Rudge v. Weedon, 299. 
 Rumbold v. Forteath, 191 ; 192 ; 194 
 Rump v. Greenhill, 215 ; 299 ; 839. 
 Russell V. East Anglican R. Co., 273 
 
 do V. Lucy, 155. 
 
 do T. Robertson, 241. 
 Rutter T. Chapman, 201 . 
 Ruttan V. Smith, 158 ; 164 ; 186. 
 Kyalls V. Reg, 49. 
 
 Sale T. Kitson, 15?. 
 
 do v. Sale, 144. 
 Salomon r. Stalman, 256. 
 Sanborn v. Sanborn, 26. 
 Sanderson v. Walker, 260. 
 Sandon v. Hooper, 240. 
 Sandy v. Long, 160 ; 291. 
 Sargeant v. Sharpe, 176. 
 Sargent v. Gannor, 49. 
 Saunders v. Furnival, 192. 
 Savage t. Hutchinson, 156. 
 Sayer v. Bash, 50. 
 
 do V. Waggstaffe, 67 ; 68. 
 Schneider v. Lizardi, 276. 
 Schroder v. Schroder, 71. 
 Scott T. Carter, 188. 
 
 do T. McDonald, 333. 
 
 do v. McKeown, 331. 
 
 do V. Wheeler, 171 ; 80 J. 
 Scottish Union Insurance Co. v. 
 Steele, 158. 
 
CASES CITED. 
 
 XXIX 
 
 Seath V. McTlroy, SI ,• 290. 
 Secord v. Terryberry, 290, 
 Seidler, Exparte, 292. 
 
 do V. Sheppard, 154. 
 Senior T Pawson, 72. 
 
 do T. Pritchard, 274. 
 SergisouT. BeaTen, 170. 
 Severn y. Fletcher, 304 ; 336. 
 
 do v. Severn, 12 | 18. 
 Sewell V. Ashley, 839. 
 Sexton Barnes' Settled Bstate, Ee, 
 
 70. 
 Shackell, Exparte, 67. 
 Sharp V. Lamb, 201. 
 Sharpley, Re, 149. 
 Khaw V. Acker, 173. 
 do V. Borrer, 104. 
 do V. Hardingham, 153. 
 do V. Liddell, 154; 177. 
 do Re, 53. 
 Shaver v. Alison, 265. 
 Shea T. Fellowes, 175. 
 ShefiSeld Water Works v. Yeoman 
 
 185. 
 Shelley v. 'Westbrooke, 62. 
 Shepperd v. Layball, 87. 
 Sherwiu v. Shakespear, 234; 236. 
 Sherwood v. Beveridge, 212. 
 do V. Campbell, 311. 
 do V. Freeland, 147. 
 do V. Sanderson, 14; 17. 
 SHllito T. CoUett, 62. 
 Shirley v. Earl Terrett's, 248. 
 Shipton V. Rawdns, 154. 
 Shrewsbury v. North Staffordshire 
 
 Rail Co., 184 
 Sidden v. Liddiard, 243. 
 Siffkin V. Davis, 153. 
 SillooxT. Sells, 29. 
 Silver v. Bishop of Norwich, 271. 
 
 do T. Stein, 148. 
 Simes V. Byre, 154. 
 Simmonds t. Lord Kinnaird, 272 
 Simpson v. Brown, 193. 
 
 do T. Chapman, 230; 231. 
 do Exparte, 157. 
 do V. Ottawa and Prescott 
 Rail. Co., 269; 271; 273. 
 Simpson v. Smith, 184. 
 do V. Smyth, 27. 
 Sims V. Ridge, 220. 
 Simson, Re, 115. 
 Sivell V. Abraham, 211. 
 Skidmore, Re, 158. 
 fcjkipps V. Harwood, 271. 
 Sladden, Re, 57; 58. 
 Slatar T. Fisken, 32. 
 
 Sleight V. Lawaon, 242 ; 246. 
 Smith v. Acton, 122. 
 
 do V. Andrews, 153. 
 
 do V. Barnes, 194. 
 
 do V. Bird, 201. 
 
 do V. Etches, 146. 
 
 do T. Gunn, 302. 
 
 do V. Harley, 187. 
 
 do V. Harwood, 260. 
 
 do V. Horsefall, -J 98; 300. 
 
 do V. Leathart, 208. 
 
 do T. Lines, 301. 
 
 do V. Muirhead, 134. 
 
 do V. Port Hope Harbour Co., 
 210. 
 
 do Re, 49; 75; 136. 
 
 do V. Smith, 110 ; 162; 271. 
 
 do v. Swansea Dock Co., 257" 
 
 do V. Webster, 223. 
 
 do V. Wells, 202. 
 Sombre Dyce, Re, 14. 
 Somerville v. Kerr, 169 ; 291. 
 Sollies V. Boules, 13. 
 Southcote, Exparte, 75. 
 South wood V. Taylor. 276. 
 Sparks v. Redhead, 336. 
 Spawn V. Nelles, 268. 
 Speidall v. Jervis, 179 ; 180. 
 Spencer v. Barough, 201. 
 Speyer v. Bernard, 49. 
 Spicer v. Dawsen, 261. 
 Spiller, Re, 1 14. 
 Sprye v. Reynell, 265. 
 Stacpool v. Stacpool, 231. 
 rttaggv. Knowles, 267. 
 Staunton v. Carron, 246. 
 Standish v. Radley, 296. 
 Stanley v. Bond, 179. 
 Stanuard, Re, 215. 
 Stansfield v. Hobson, 153. 
 Stan- v. Newberry, 71. 
 Starton v. Bartholomew, 144. 
 Steedman v. Toole, 257. 
 Steele, Exparte, 48 ; 
 
 do V. Plomer, 166. 
 
 do Re, 57. 
 
 do V. Stewart, 193. 
 Sterling v. Campbell, 330. 
 Stephen, Re, 57 . 
 Stephens v. Workman, 277. 
 Stevenson V. Huffman, 30; 257. 
 do V. Nichol, 220 ; 294. 
 do V. Foot, 257, 
 Stewart v. Hunter, 153 ; 250. 
 
 do V. Stewart, 315. 
 Stinton V. Taylor, 199; 200; 265; 
 
 269. 
 
XXX 
 
 CASES CITED. 
 
 Stinsonv. Martin, 292. 
 
 St. John, Ld,v. St. John, Lady, 
 
 15Y. 
 Stokes V. Crysler, 293. 
 
 do v..Trumper, 50; 52. 
 Stone V. Wishart, 272. 
 Strachau v. Devlin, 337. 
 Strachan v. Murney, 179; 836. 
 Strange v. Colling, 188. 
 Strong V. Moore, 152. 
 Strother, Re. 51; 57. 
 Stuart V. Ansell, 276. 
 
 do V. Marquis of Bute, 25. 
 
 do Re, 215. 
 Stubbs V. Moylneu, 244. 
 Stupartv, Arrowsmith, 146. 
 Sturch V. Young, 258. 
 Sturgis V. Morse, 261. 
 Sullivan v. Bevan, .341. 
 Snmmertille v. Pritchard, 191 . 
 Sutherland v. De Virenne, 148. 
 do y. Dieksou, 32? 
 do V. Rogers, 244; 249. 
 Sutton Harbour Co., v. Hitchens, 267. 
 Swaine v. Great Northern Rail. Co 
 
 72. 
 Swallow V. Binns, 149. 
 Swansea Vale Rail. Co., V. Budd, 191, 
 Swanzy v. ywanzy, 292. 
 Swift V. Swift, 62. 
 Sykes v. Hastings, 272. 
 
 T. 
 
 Talbot T. Marahfield, 194; 195. 
 
 Tague, Re, 44. 
 
 Taner v. Ivie, 145. 
 
 Tarbutt, Re, 70 . 
 
 Tardrew v. Howell, 340. 
 
 Tarrett V. Lloyd, 148. 
 
 Tate V . Hiohins, 49 . 
 
 do V. Leithead, 299. 
 Taylor t. Ansley, 854. 
 
 do V. Barclay, 140. 
 
 do V. Cutbbert, 333. 
 
 do V. Hodgson, 49. 
 
 do Re, 56; 62. 
 
 do V. Rundell, 193. 
 
 do v., Stead, 330. 
 
 do V. Taylor, 13. 
 
 do T. Wulker, 311 ; 325. 
 Tebba v. Carpeeter, 225. 
 Teed v . Beere, 245 . 
 Templeman, Re, 133. 
 Tench v. Cheese, 157; 158. 
 Thibado v. Collar, 336. 
 Thistlewaite, V. Qarnier, 71. 
 
 Thomas v. Bernard, 26*3 . 
 
 do V. Buchanan, 269, 
 
 do V. Cross, 48. 
 
 do V. Rawlins, 193. 
 
 do Re, 133. 
 
 do V. Roberts, 62. 
 
 do V. Torrance, 153; 273. 
 Thompson, Re, 51 ; 57 ; 58 ; 133 ; 160. 
 do Settled Estate, Re, 70 
 
 do V. Walker, 253. 
 
 Thorndyke v. Hunt, 137. 
 Thornhill v. Manning. 332. 
 Thorpe v. Jackson, 154. 
 Thorp, Exparte, 157 ; 158. 
 Thrasher v. Connolly. 164. 
 Thurgood v. Kane, 180. 
 Thurgood, Re, 50 . 
 Tid swell v. Bowyer, 188. 
 Tiffany v. Thompson, 29 ; 238. 
 Tilletv. Charing Cross Rail. Co., 
 
 72. 
 Timpson v. London & W. Western 
 
 Rail. Co. 299. 
 Toghillv. Grant, 53. 
 Tollett V. Tollett. 102. 
 Token T. Jervis 123; 213. 
 Tomlinson, Re. 62. 
 Tommey V. White, 296. 
 Topping v. Searson, 136. 
 Toronto, City of, t. McGill. 203. 
 Toronto Congregational Church, Ke, 
 
 59. 
 Torrance r. Crooks, 188. 
 Torr V. Torr. 183, 
 Totten V. Mclntyre, 318. 
 Towend v. Towend, 22-7. 
 Towle Re, 57; 58. 
 Townsley v. Neil, 24. 
 Trafford, Re, 73. 
 Trevelyan v. Charter, 237. 
 TrezevantT. Broughton, 299. 
 Trilly v. Keefe, 180; 181. 
 Trim v. Baker, 184. 
 Trimleston v. Hamill, 240 . 
 Trulock V. Robey, 239 ; 296. 
 Tucker v. Wilkius, 301. 
 Tudor V. Morris, 153, 
 Tugwell V. Hooper, 170. 
 Turner v. Burkenshaw, 194. 
 
 do Exparte, 57. 
 
 do V. Turner, 261 ; 286. 
 
 do T. Sowden, 354. 
 Turney v. Bayley, 194. 
 Tyce V. Meyers, 329. 
 Tyler t. Bell, 184. 
 
 Tyrone, Earl of, v , Marquis of Water- 
 ford, 71. 
 
CASES CITED, 
 
 XXXI 
 
 u. 
 
 trmpelby v. Waveney Valley Rail. 
 
 Co.. 300. 
 United States V, Wagner, 140 j 184. 
 Unity, &c. Assotiation, Re, 171. 
 Upper Canada Mining Co, v, Attor- 
 
 ney-Genera\, 267, 
 Ure V. Lord, 298. 
 
 Vane v . "Whittington, 201. 
 Vansandan v. Rose, 276. 
 Vanwinlvle v. Chaplin, 143 ; 292. 
 Vardy, Re, 56. 
 Varteg Iron Works, Re, v. Wesleyan 
 
 Chapel, 256. 
 Varty v. Duncan, 34. 
 Taughan V, Rogers. 180; 182. 
 Veitch V. Irving, 293. 
 Ventilation & Sanitary Improvement 
 
 Co. V. Edelsten. 211. 
 Vines, Re, 52. 
 Vorweig V. Barweiss, 156. 
 
 ■ W. 
 
 Waddellv. McCoU, 251; 288; 332, 
 Waddilove V. Taylor, 136; 278. 
 Wadeer V. East India Co., 193. 
 Wakefield v. Duke of Buccleugh, 
 
 276. 
 Wake V. Parker, 143. 
 Walker v. Easterby, 291. 
 
 do V. Fletcher, 256. 
 
 do V. Woodward, 228. 
 Wallace V. Ford, 266. 
 Waller V. Pedlington, 163. 
 Wall V. Hall, 70. 
 Walmsley V. Froude, 209. 
 Walton, Re, 48 ; 133. 
 Walsh V. Walsh, 12. 
 
 do Re, 68, 
 Warbartonv. Hill, 278. 
 Ward, Exparle, 1 7. 
 
 do Re, 18, 114. 
 
 do Re, Lord's case, 15. 
 
 do v. Shakeshaft, 299, 
 
 do V. Swift, 136. 273. 
 Warde V. Dickson 263. 
 
 do V. Warde, 62. 
 Wardle v. Cla.>:ton, 185. 
 Warren v. Buck, 143. 
 Waterton V. Croft, 171 ; 174. 
 Watkins v. Aitchison, 34. 
 
 do T. Brent, 271. 
 
 Watts v. Hughes 171. 
 Watson V. Ham, 261 ; 299. 
 
 do V. Moore, 253. 
 
 do V. Parker, 212. 
 Watteau v. Billam, 292. 
 Waugh V. Waddell, 48 ; 50. 
 Wavell, Re, 50; 51. 
 Wayn v. Lewis. .S24. 
 Weals V. Rice, 246 
 Webb V. Byng, S59. 
 
 do V. Rorkp, 240. 
 
 do V. Wardle, 304. 
 Webber v. Hunt, 232, 
 Webster v. LeHunt, 13B. 
 
 do V. O'Closter, 35. 
 
 do V. Taylor, 281. 
 VVedderburnv. Wedderburn, 231. 
 Wedmore v. Corporation of Bristol, 
 
 72. 
 Weeks v. Stourton, 194. 
 Weightmau v. Powell, 162; 164; 
 
 165; 176. 
 Weir v. Matheson. 196. 
 
 do V. Tiiylor, 338. 
 
 do V. Weir, 12. 
 Welcham, Re, 67. 
 Weldon v. Templeton, 354. 
 Wellesley v. Duke of Beauford, 62. 
 
 do V. llornington, 278. 
 
 Wells, Re, 52 ; 56 ; 57. 
 
 do V. Wood, 187. 
 Welsh V. Sil well, 49. 
 Westacott v. Cockerline, 164; 275. 
 Western Assurance Co. v. Capreol, 
 
 333. 
 Whalley, Re, .53. 
 
 do V. Whalley, 136.- 
 
 do V. Williamson, 53. 
 
 Whatton v. Craddock, 332. 
 \\ barton v. Swanh, 16. 
 Wheal North Ksmouth Mining Co., 
 
 Re, 261; 262. 
 Wheatley v.Bastow, 137. 
 Wheeler, Re, 21. 
 Whiteaves v. Melville, 148. 
 White V. Baskerville, 185. 
 
 do V. Tourtney, 253. 
 
 do V. Greathead, 291. 
 
 do V. White, 291. 
 Whitehead v. North, 220. 
 Whitelegg v. Whitelegg, 274. 
 Whitfield V. Roberts, 332. 
 Whitmars v. Ford, 354. 
 Whitmore v. Ryan, 173. 
 Whittington v. Gooding, 143. 
 Wilde V. Wilde, 211. 
 Wilkins v. Reeves. 153. 
 
XXXll 
 
 CASES CITED. 
 
 "Wilkens v. Stevens, 127. 
 •Wilkinson v. Wilkinson, 242. 
 ■Williams V. Allen, 148. 
 
 do V. Griffiith,48. 
 
 do V . Page, 146 ; 266 . 
 
 do V. Powell, 228. 
 
 do V. Prince of Wales' Ass. 
 
 Co , 191; 193. 
 Williams, Re, S2; 51; 115; 136. 
 
 do V. Salmond, 146. 
 
 do V. Williams, 10; 206. 
 WillettT. Blanford, 229; 231. 
 ■Willimot V. Ogelby, 298. 
 Wills, fie, 159. 
 Wilson, Y. Bennett, Vl. 
 
 do V. Brunskill, 193. 
 
 do T. Casey, 263. 
 
 do V. Clapham, 236. 
 
 do V. Cluer, 232; 233. 
 
 do V. Emmett, 133. 
 
 do Exparte, 235 . 
 
 do T. Goodman, 154. 
 
 do V. Metcalfe, 233. 
 
 do V. Peake, 12Y. 
 
 do T . Whateley, 7 1 . 
 
 do T. Wilson, 100; 271. 
 Wiltshire v. Marshall, 261. 
 Wiltshire, Re, 339. 
 Wiman v. Bradstreet, 193. 
 Winchester, Bishop of, v. Bowker 
 
 192; 194. 
 Winchester, Bishop of, v. Payne, 
 
 161. 
 Windham, Re, 76. 
 Winsoom, Re, 62. 
 Winterbothara. Re, 51. 
 Winthrop v. Elderton, 261. 
 
 do V. Murray, 163;' 266. 
 
 do V. Winthrop, 261 
 
 Winters V. Kingston Permt. Build- 
 ing Society, 284 ; 294. 
 Wintle T. Bristol Rail. Co. 205 ; 275 
 Wisewold, Re, 133 . 
 
 Wood V. Gray, 293 
 do V. Lambirth, 261. 
 Woods T. Woods, 157 ; 153. 
 Woodhatch v. Francis. 340. 
 
 do T. Freeland, 256. 
 
 Woodroffev. Titterson, 222. 
 Woodstock V. Niagara, 199. 
 Woodward v. Earl of Lincoln, 276. 
 Woodyattv. Gresley, 272. 
 WooUett, Re, 53. 
 Wormsley v. Sturt, 217 ; 248. 
 Worth y . McKenzie, 355 
 Wortham v. PeUiberton, 143. 
 Worts T. How, 187; 188. 
 Wrftgg V. Beckett, 28; 
 
 do Exparte, 17. 
 Wright V. Angle, 266. 
 
 do V. Barlow, 267. 
 
 do V. Morrow, 175. 
 
 do V. Wilkin, 261. 
 
 do y. Woodham, 71. 
 Wrigley v. Sykes. 104. 
 Wyattv. Sadler 220. 
 Wykeham, Re, 75. 
 Wyllie V. EUice, 291. 
 Wynne V. Humberstone, 190; 192; 
 
 194. 
 Wynne v. Ld, Newburgh, 273. 
 
 Yaggie, Re. 315. 
 
 Yarrington v. Lyon, 183. 
 
 Yeoman t. Haynes, 245. 
 
 Yetts, Re, 50. 
 
 York Building Co. T. McKenzie 
 
 239; 241. 
 York & Midland Rail Co. v. Hudson, 
 
 167. 
 Young V. Goodsou. 
 
 do V. Keighly, 296. 
 
 do T. W»rd, 153. 
 
CHANCERY ACT. 
 
 CON. STAT. U. C, CAP. XII.— AN ACT RE- 
 SPECTING THE COURT OF CHANCERY. 
 
 TER MAJESTY, by and with the advice and con- 
 L sent of the Legislative Council and Assembly of 
 Canada, enacts as follows : 
 
 H' 
 
 I. The Court of Chancery now existing in Upper 
 Canada is hereby continued, and shall continue to be 
 called the Court of Chancery for Upper Canada. 7 W. 
 4, c. 2, s. 1. 
 
 II. The Governor in Council may, from time to time, 
 determine and declare the seal to be used in the Court, 
 and by which its judgments and proceedings shaH be 
 certified and authenticated. 7 W. 4, c. 2, s. 18. 
 
 III. The Court shall be presided over by a Chief 
 Judge, to be called the Chancellor of Upper Canada, and 
 two additional Judges, to be called Vice-Chancellors. 
 12 V. c. 64, s. 1. 
 
 IV. Her Majesty may from time to time, as vacancies 
 occur, appoint, by Letters Patent under the Great Seal 
 of this Province, one person, being a Barrister at Law of 
 not less than ten years' standing at the Bar of Upper 
 Canada, to be Chancellor, and two persons, being Bar- 
 risters of not less than ten years' standing at the said Bar, 
 to be Vice-Chancellors; and the Chancellor of Upper 
 Canada shall have rank and precedence next after the 
 
2 CHANCERY ACT. 
 
 Chief Justice of Upper Canada ; and the Vice-Chancel- 
 lors and the Puisne Judges of the Superior Courts of 
 Common Law shall have rank and precedence as between 
 themselves according to seniority of appointment to their 
 respective Offices. 12 V. c. 64, s. 2. 
 
 V. The Judges shall hold their offices during good 
 behaviour; but the Governor in Council may remove 
 any of them upon the address of the two Houses of the 
 Parliament of the Province; and in case a Judge so 
 removed thinks himself aggrieved thereby, he may with- 
 in six months appeal to Her Majesty in Her Privy Council, 
 and in that case such amotion shall not be final until 
 the appeal has been determined by Her Majesty in Her 
 Privy Council. 12 V. c. 64, s. 3. 
 
 VI. In respect to the salaries of the Judges, there shall, 
 out of the Consolidated Revenue Fund of the Province, 
 (after paying or reserving sufficient to pay all such sums 
 as were before the thirtieth of May, one thousand eight 
 hundred and forty-nine, directed by any Act of Parliament 
 of this Province, to be paid out of the same, but with 
 preference to all other payments thereafter charged upon 
 the same) be paid to the Chancellor, five thousand dollars 
 per annum ; and to each of the other Judges, four thousand 
 dollars per annum ; and these sums shall be paid quar- 
 terly, free from all taxes and deductions, on the first day 
 of January, the first day of April, the first day of July, 
 and the first day of October, by equal portions, the first 
 payment to be made on the first of those days which 
 occur after the appointment of the Judge entitled to 
 receive the same ; and in case any of the Judges be 
 removed from office or die or resign office, such Judge 
 or his executor or administrator shall be entitled to 
 receive such proportionable part of the salary as accrued 
 during the time that he executed the office subsequent 
 to the last payment, and the successor to the office 
 
-CHANCERY ACT. 3 
 
 vacated by such Judge shall receive such portion of the 
 salary as accrues from the day of his appointment. 12 
 V. c. 64, s. 4. 
 
 VII. In case any Judge of the said Court of Chancery 
 has continued in the office of a Judge of one or more of 
 the Superior Courts of Law or Equity in Upper Canada, 
 for fifteen years, or becomes afflicted with some perma- 
 nent infirmity disabling him from the due execution of his 
 office, and in case such Judge resign his said office of 
 Judge, Her Majesty may, by Letters Patent under the 
 Great Seal of this Province, reciting such period of 
 service or permanent infirmity, grant unto such Judge an 
 annuity equal to two-thirds of the salary annexed to the 
 office of such Judge, to commence immediately after the 
 period of his resignation and to continue thenceforth 
 during his natural life ; and such annuity shall be 
 charged upon and be paid out of the Consolidated 
 Revenue Fund of this Province, after paying or reserv- 
 ing sufficient to pay all such sums of money as by any 
 Acts of the Parliament of this Province in force on the 
 thirtieth day of May, one thousand eight hundred and 
 forty-nine, have been directed to be paid thereout, but 
 with preference to all other payments thereafter charged 
 upon the same fund ; and such annuity shall be paid 
 quarterly, by equal portions on the first days of January, 
 April, July and October, in each year, free from all 
 taxes and deductions whatsoever ; and the first quarterly 
 payment, or a proportionate part thereof to be computed 
 from the time of his resignation, shall be made on such 
 of the said days as next happens after the resignation ; 
 and the executors or administrators of the person to whom 
 the annuity has been granted shall be paid such propor- 
 tionate part of the same as accrued from the commence- 
 ment, or the last quarterly payment thereof, as the case 
 may be, to the day of his death. 12 V. c. 64, s. 5. 
 
4 CHANCERY ACT. 
 
 VIII. Every Judge shall, previous to executing the 
 duties of his office, take the following oath, which oath 
 shall be administered to the Chancellor before the 
 Governor in Council, and to the Vice-Chancellors in 
 open Court in presence of the Chancellor: 12 V. c. 64, 
 s. 6. 
 
 "J, , , do solemnly and sincerely pro- 
 
 " raise and swear, that I will duly and faithfully, and to 
 " the best of my skill and knowledge, execute the pow- 
 " ers and trusts reposed in me, as Chancellor (or Vice- 
 " Chancellor). So help me God." 
 
 IX. The Governor in Council may, from time to time, 
 under the Great Seal of the Province, appoint during 
 pleasure, one Registrar, one Master in ordinary, one Ac- 
 countant, and a Sergeant-at-Arms, to the Court; and 
 these Officers shall, in addition to the duties usually per- 
 formed by the like officers in England, be liable to per- 
 form any other duties assigned to them by the Court. 7 
 W. 4, c. 2, s. 9,-12 V. c. 64, s. 12. 
 
 X. The Registrar and Master in ordinary may each 
 appoint one Clerk, subject to the approval of the Judges, 
 and may with the like approval remove such Clerlf at 
 pleasure. 13, 14 V. c. 50, s. 3,-12 V. c. 64, s. 12. 
 
 XI. The Master in ordinary, Registrar, or Clerk so 
 appointed, shall not take for his own benefit, directly or 
 indirectly, any fee or emolument, save the salary to 
 which he may be entitled by law ; but the like sums 
 and fees heretofore payable and receivable in the Court 
 shall continue to be payable and receivable by the like 
 persons ; and all the fees received by or on account of 
 the Master and Registrar, shall form part of the Conso- 
 lidated Revenue Fund of the Province. 12 V. c. 64, 
 s. 13. 
 
CHANCERY ACT. O 
 
 By the 21 and 28 Vie. c. 5, all the fees mentioned in this section are 
 made payable by Stamps. 
 
 XII. The Master in ordinary and Registrar respective- 
 ly shall, on the four quarterly days hereinbefore men- 
 tioned, render to the Minister of Finance a true Account 
 in writing of all the fees received by or on account of 
 his office, in such form and with such particulars as the 
 Minister of Finance from time to time requires ; and 
 shall sign the account, and declare the truth thereof 
 before one of the Judges of the Court ; and shall, within 
 ten days after rendering the account, pay over the 
 amount of the fees to the Receiver General ; and if 
 default be made in such payment, the amount shall be 
 deemed a specialty debt to Her Majesty. 12 V. c. 64, 
 s. 14. 
 
 XIII. The Judges may, from time to time, under the 
 Seal of the Court, appoint, and at their discretion remove, 
 local Masters and Deputy Registrars (both of which of- 
 fices may be held by one person,) in such places respec- 
 tively out of Toronto, as the Judges may think expedient 
 for the purpose of promoting as far as practicable the 
 local administration of Justice ; and the Judges may 
 likewise in manner aforesaid, appoint and remove Com- 
 missioners for administering oaths and taking affidavits 
 and depositions in the said Court with the powers for- 
 merly possessed by Masters Extraordinary and Exam- 
 iners ; and also an Usher to attend on the Court, and the 
 respective Judges thereof, during the sittings of the Court 
 and Judges respectively for the transaction of business, 
 and to execute such pi"0cess of the Court as may be 
 directed to him. 13, 14 V. c. 50, s. 1,-20 V. c. 56, ss. 
 17, 19,-7 W. 4, c. 2. s. 10. 
 
 A bill of complaint may be filed either with the Clerk of Records and 
 Writs, or in the office of a Deputy Registrar, at the option of the plaintiff, 
 Ord. 11 ; but all the subsequent pleadings must be filed in the same 
 office as the bill, Ord. 1i. 
 
b CHANCERY ACT. 
 
 Local Masters and Deputy Regiatrars respectively are to perform the 
 duties of their sereral offices in the same manner, and under the same 
 regulations as the like duties are performed by the Master and by the 
 Clerk of Records and Writs respectively ; and all orders, rules and reg- 
 ulations, in force respecting the Master and Clerk of Records and Writs 
 respectively, and respecting the regulations of their respective offices, are 
 to be in force and applicable to the Local Masters and Deputy Registrars 
 respectively, in relation to such duties as they are required to perform ; 
 and the like sums and fees payable to the Master and Clerk of Records 
 and Writs respectively, are to be payable to the Local Masters and Deputy 
 Registrars respectively in relation to similar matters, Ord. 84. 
 
 Where the bill is filed in an outer County, the Local Master may also 
 hear and dispose of all applications in the progress of the suit, for the 
 following purposes, viz: — to appoint guardians ad Kiem for infanta, — 
 for time to answer or demur, — for leave to amend before replication, — to 
 postpone the examination of witnesses, or to allow further time foe the 
 production of evidence, — for security for costs, Ord, 86, 
 
 All office copies of decrees to be served on parties, added in the Mas- 
 ter's office, may be certified by the Deputy Registrar, at the place where 
 the reference is being prosecuted, Ord. 547 ; Deputy Registrars are also 
 required to transmit to the Clerk of Records and Writs at Toronto, every 
 six months, a list of all bills filed with them during the preceding half 
 year, Ord. 39. Certificates of the filing of bills, and certificates of de- 
 crees for registration, may also be given by Deputy Registrars, Con. 
 Stat. V. a, c. 12, ss. 64, 65. 
 
 XIV. There shall be paid out of the Consolidated Re- 
 venue Fund of the Province, (after paying or reserving 
 sufficient to pay all such sums as were directed by any 
 Act of the Parliament of this Province before the 
 Thirtieth day of May, one thousand eight hundred and 
 forty-nine, to be paid thereout, but with preference to all 
 payments thereafter charged upon the same) the yearly 
 sums following as and for the salaries of the Master in 
 ordinary, the Registrar and the Clerk of the Registrar, 
 that is to say ; to the Master, two thousand dollars ; to 
 the Registrar, one thousand six hundred dollars ; and to 
 the Clerk, five hundred dollars ; which sums shall be 
 paid quarterly, free from all taxes and deductions, on the 
 four quarterly days hereinbefore mentioned; but the 
 payment to be made in each case on the first of the 
 
CHANCERY ACT. 7 
 
 quarterly days which happens after the right thereto 
 accrues, shall be a rateable proportion of a Quarter's 
 Salary, according to the time then elapsed since the ac- 
 crual of the right ; and in case of a vacancy in the office 
 of such Master, Registrar or Clerk, the person making 
 the vacancy, his executors or administrators, shall be 
 entitled to a proportional part of his salary accordihg to 
 the time elapsed between the vacancy and the last quar- 
 terly payment ; and there shall also be paid out of the 
 Consolidated Revenue Fund of the Province (after pav- 
 ing or reserving sufficient to pay all such sums as have 
 been directed by any Act of the Parliament of this Pro- 
 vince before the tenth day of August, one thousand eight 
 hundred and fifty, to be paid out of the same, but with 
 preference to all payments thereafter charged upon the 
 same) the yearly sum of five hundred ^dollars, for the 
 salary of the Clerk in the Master's Office. 12 V. c. 64, 
 s. 12,-13, 14 V. c. 50, s. 3. 
 
 XV. The local Masters, the Deputy Registrars, and 
 the Commissioners may retain to their own use all the 
 fees of office which they respectively receive not belong- 
 ing to any fee fund, and need not account to the Crown 
 for any portion of such fees. 20 V. c. 56, s. 16. 
 
 XVI. The Governor in Council may, from time to 
 time, appoint an additional Clerk or additionaL Clerks in 
 the Court, when the business of the Court requires the 
 same and the Judges of the Court apply for such appoint- 
 ment, and the Clerk or Clerks shall perform such duties 
 as the Court may, from time to tiine, by general orders 
 or otherwise, direct. 20 V. c. 56, s. 18. 
 
 XVII. Every Officer of the Court before he enters 
 upon his duties shall take and subscribe the following 
 oath, which oath shall be administered by the Judges, 
 or one or more of them in open Court : 
 
8 
 
 CHANCERY ACT. 
 
 " I, A. B., of , do hereby solemnly swear, 
 
 " that I will, according to the best of my skill, learning, 
 " ability and judgment, well and faithfully execute and 
 " fulfil the duties of the office of Master, &c., {as the 
 case may be,) without favour or affection, prejudice or 
 " partiality, to any person or persons whomsoever. So 
 " help me God." 7 W. 4, c. 2, s. 20. 
 
 XVIII. When not convenient to a person appointed to 
 any office to attend at Toronto, to take the oath of office,, 
 the Court may direct the oath to be taken before the 
 Judge of the County Court of the County in which such 
 Officer resides, and the oath shall be certified by such 
 Judge and filed in the Office of the Registrar. 1 V. c. 
 14, s. S. 
 
 XIX. Sheriffs, Deputy Sheriffs, Gaolers, Constables 
 and other Peace Officers, shall aid, assist and obey the 
 Court and the Judges thereof respectively in the exercise 
 of the jurisdiction conferred by this Act, and otherwise, 
 whenever by any general or other order of the Court or 
 of a Judge thereof, required so to do. 20 V. c. 56, s. 6» 
 —7 W. 4, c. 2, s. 14. 
 
 All commissions of sequestration are to be directed to the sheriff, un- 
 less some good reason exists for the contrary, Ord. 292. 
 
 XX. The Court shall be holden at the City of Toronto 
 or in any other place from time to time appointed by 
 Proclamation of the Governor. 7 W. 4, c. 2, s. 1. 
 
 XXI. The Judges shall sit together for all business 
 not directed by general or other orders to be transacted 
 before a single Judge, and in such case the Chancellor 
 or, if he be absent, the Senior Vice-Chancellor, shall 
 prqs^de. 12 V. c. 64, s. 7. 
 
 At present all causes are heard before a single Judge in the first in- 
 stance ; either on circuit, ■when issue has been joined, and witnesses have 
 
CHANCERY ACT. 9 
 
 been examined, or at Toronto, on motions for decree, or pro confesso. The 
 full Court of three Judges sits at Toronto, for the purpose of re-hearing 
 causes, three times a year, on the third Thursday in February, last Thurs- 
 day in August, and first Thursday in December, Ord. 413. 
 
 XXII. The Judges may sit separately, either at the 
 same time or at diiferent times, for the hearing and dis- 
 posing of such matters and the transaction of such 
 business as may from time to time in that behalf be 
 directed by general or other orders of the Court ; and the 
 decrees and orders made by a single Judge in such cases 
 shall have the force and effect of, and be deemed for all 
 purposes to be, decrees and orders of the Court, but 
 shall be subject to re -hearing before the full Court or 
 otherwise, in such cases as the Court, by general orders 
 or otherwise, from time to time directs or appoints ; and 
 every Judge so sitting separately, whether at Toronto or 
 elsewhere, shall have all the powers of the full Court, 
 subject to any general orders in that behalf. 20 V., c. 
 56, s. 7. 
 
 The Judges availing themselves of the power given by this section, sit 
 in Court separately, on alternate weeks. Monday is appropriated to the 
 hearing of causes and demurrers, Tuesday to motions, and the remaining 
 days of the week to hearings pro confesso, motions for decree, further 
 directions, petitions, and appeals from Masters' reports. Ord. 41 G. 
 
 XXIII. The Judges, or one or more of them, shall also 
 take circuits for the transaction of such business of the 
 Court as it may be practicable and conducive to the 
 interests of suitors and the convenient administration of 
 justice to dispose of on such circuits ; and for that pur- 
 pose, the Court, or one or more of the Judges thereof, may 
 hold sittings for the purposes of taking such evidence and 
 hearing such causes and other matters, and transacting 
 such other business, and at such periods and at such 
 County Towns, as the Court from time to time sees fit to 
 direct and appoint; and such sittings may, at the dis 
 cretion of the Court or of the Judge who is to hold the 
 
10 CHANCERY ACT. 
 
 same, be held in the Court House of the County Town 
 in which the same are appointed to be held, or in such 
 other place in the County Town as the Judge selects ; 
 and the Judge shall in all respects have the same au- 
 thority as a Judge at Nisi Prius in regard to the use of 
 the Court House, Gaol and other buildings or apartments 
 set apart in the County for the administration of justice. 
 20 V. c. 56, s. 6. 
 
 In pursuance of the authority given by this section the Court has 
 divided the Province into three circuits> and has appointed a number of 
 County Towns as places at which witnesses may be examined and causes 
 heard. 
 
 The Venue must be laid at one of the Towns so appointed for holding 
 examinations, Ord. li. 
 
 Causes are now heard at the same time that the witnesses are examined, 
 upon the close of such examination ; no evidence to be used on the hear- 
 ing of a cause is to be taken before any Examiner or Officer of the Court, 
 unless by the order first had of the Court, or a Judge thereof, upon 
 special grounds adduced for that purpose, Ord. 166. It is presumed the 
 application to have the evidence taken otherwise than before the Court, 
 must be on notice, and not ex parte. 
 
 When the examination of witnesses before a Judge is to be had in any 
 Town or place other than that in which the pleadings are filed, the party 
 setting down the cause must procure the transmission of the pleadings 
 and such other documents as may be required, from, the office in which 
 they are filed, to the Registrar or Deputy Registrar, at the place where 
 the examination is to take place, Ord. 165. 
 
 XXIV. All witnesses in any business pending before 
 the Court, or before any of the Masters thereof, shall 
 give their testimony viva voce, and be subject to examin- 
 ation by Counsel, in the presence of one or more of the 
 Judges, or of the Masters, unless it be otherwise ordered 
 by the Court, on special grounds, or with the consent of 
 the parties in the suit or controversy to which the testi- 
 mony relates. T W. 4, c. 2, s. 5. 
 
 XXV. The rules of decision in the Court shall, except 
 when otherwise provided, be the same as governed the 
 Court of Chancery in England in like cases on the fourth 
 
CHANCERY ACT. 11 
 
 day of March, one thousand eight hundred and thirty- 
 seven, and the Court shall possess power to enforce obe- 
 dience to its orders, judgments and decrees, to the same 
 extent as was then possessed by the Court of Chancery 
 in England. 7 W. 4, c. 2, s. 6,-12 V. c. 64, s. 9. 
 
 XXVI. The Court shall have the like jurisdiction and 
 power as by the laws of England were at the said date 
 possessed by the Court of Chancery in England, in re- 
 spect of the matters hereinafter enumerated, that is to 
 say:— (1.) Iii all cases of fraud and accident ; (2.) And 
 in all matters relating to trusts, executors and adminis- 
 trators, co-partnership and account, mortgages, awards, 
 dower, infants, idiots, lunatics and their estates; (3.) 
 And also to stay waste ; (4.) To compel the specific per- 
 formance of agreements ; (5.) To compel the discovery 
 of concealed papers or evidence, or such as may be 
 wrongfully withheld from the party claiming the benefit 
 of the same ; (6.) To prevent multiplicity of suits ; (7.) 
 To stay proceedings in a Court of Law prosecuted 
 against equity and good conscience ; (8.) To decree the 
 issue of Letters Patent from the Crown to rightful claim- 
 ants ; (9.) To repeal and avoid Letters Patent issued 
 erroneously or by mistake or improvidently or through 
 fraud; (10.) And generally, the like jurisdiction and 
 power as the Court of Chancery in England possessed on 
 the tenth day of June, one thousand eight hundred and 
 fifly-seven, as a Court of Equity to administer justice in 
 all cases in which there exists no adequate remedy at 
 Law. 7 W. 4, c. 2, s. 2,-16 V. c. 159, s. 21,-13, 14 
 V. c. 50, s. 4,-20 V. c. 56, s. 1,-12 V. c. 64, s, 8. 
 
 XXVn. The Court may grant an injunction to stay 
 waste in a proper case, notwithstanding that the party in 
 possession claims by an a.dverse legal title. 20 V. c. 56, 
 s. 4. 
 
12 CHANCERY ACT, 
 
 XXVIII. The Court shall have jurisdiction to try the 
 validity of Last Wills and Testaments, whether the same 
 respect real or personal estate, and to pronounce such 
 Wills and Testaments to be void for fraud and undue in- 
 fluence or otherwise, in the same manner and to the same 
 extent as the Court has jurisdiction to try the validity of 
 deeds and other instruments. 12 V. c. 64, s. 10. 
 
 XXIX. The Court shall also have jurisdiction to decree 
 alimony to any wife who would be entitled to alimony 
 by the law of England, or to any wife who would be en- 
 titled by Ihe law of England to a divorce and to alimony 
 as incident thereto, or to any wife whose husband lives 
 separate from her without any sufficient cause and under 
 circumstances which would entitle her, by the law of 
 England, to a decree for a restitution of coajugal rights ; 
 and alimony when decreed shall continue until the fur- 
 ther order of the Court. 7 W. 4, c. 2, s. 3,-20 V. c. 
 56, s. 2. 
 
 In suits for alimony tiie Court or a Jadge thereof may, in a proper case, 
 order a writ of arrest to issue at any time after the bill has been filed, 
 and shall in the order fix the amount of bail to be given by the defendant, 
 in order to procure his discharge, Con. Stat. U. C, c.24, s. 9 ; the amount 
 of bail shall not exceed suflSoient to cover the amount of future alimony 
 for two years, besides arrears and costs-, but may be for less at the dis- 
 cretion of the court. Ibid., s. 10. 
 
 Although in England the mere fact of desertion by the husband, will 
 not entitle the wife to a decree for alimony ; still, as in this country, the 
 court cannot decree restitution of conjugal rights, desertion would be 
 sufficient to warrant a decree for alimony, and desertion coupled with 
 other acts of cruelty forms a material ingredient in determining a wife's 
 right to relief, Severn v. Severn, 3 Grant, 431, 
 
 The bill should allege that the husband has refused to receive his wife ; 
 it is not sufficient to allege merely that they are living apart, Walsh v. 
 Walsh, 1 Cham. R. 234. 
 
 An offer by the husband to support his wife separately is no bar to a suit 
 for alimony, and an affidavit of the husband shewing his willingness to 
 support his wife separately cannot be received, Weir v. Weir, 1 Cham, 
 B, 194 ; 10 Grant, 565 ; and the Court will not sanction the payment by 
 the husband of a sum in gross, in lieu of an annual sum by way of 
 alimony, Hagarty v. Hagarty, 11 Grant, 562. 5et, 36 Z.B.£.9^'S?„.^.^ 
 
 cUt.^, <^w U-cj, u,^ '^^^y u.cy£-^ (^ ^ i\^^^'t£e a__j /^t^ 
 
CHANCERY ACT. 13 
 
 Where, a tew days after her departure from her husband's house, the 
 wife was found with severe bruises and injuries upon her person, which 
 in the opinion of a medical man, must have been caused by external 
 physical violence not occasioned by a fall or other accident, and the 
 husband having been shown to have used violence towards her on other 
 occasions, and in other ways had so conducted himself as to raise a 
 strong presumption that the bruises and injuries were inflicted by him, 
 the court made a decree for alimony, Jackson v. Jackson, 8 Grant, 499. 
 
 The Court will in a proper case grant interim alimony pendente lite, 
 Soules V. Soules, 3 Grant, 113. 
 
 As to the practice for obtaining interim alimony, see Ord. 488 et seq. 
 
 On a motion in Chambers for interim alimony it is not necessary to 
 prove any of the allegations in the bill, except that of the marriage, 
 Nolan V. Nolan, 1 Cham. R. 368 ; Carr v. Carr, 2 Cham. R. 11. The 
 afSdavit should state by whom and how the marriage was celebrated, 
 giving such particulars as will show the Court that the parties are really 
 married, Taylor v. Taylor, 1 Cham. R. 234. Sei~ f/nc ^J'laeA'eL. -^e/i. J-/. 
 
 Where interim alimony had not been applied for, the Court refused to 
 carry the allowance for alimony back to a date beyond the time of mak- 
 ing the decree, Soules v. Soules, 3 Grant, 113. In suits for alimony, the 
 plaintiff, when she succeeds, is entitled, as a general rule, to her full 
 costs of suit. Ibid; and even where, at the hearing, the bill was dismissed, 
 the Court refused to dismiss the bill until the arrears of interim alimony, 
 and costs taxed de die in diem had been paid by the defendant, McKaj v. 
 McKay, 6 Grant, 383. 
 
 Where the plaintiff in an alimony suit, after an order for interim ali- 
 mony bad been made, returned to her husband's house, and resided there 
 for some time, but was afterwards obliged to leave by reason of cruelty, 
 a motion to set aside the interim order on the grouud of condonation was 
 refused with costs, Maxwell v. Maxwell, \ Cham. R. 11. 
 
 The defendant having signed a consent to an order being made direct- 
 ing him to pay the plaintiff a certain sum for alimony, on motion in 
 Chambers for an order in terms of the consent ; held, that the matter 
 must be brought before the Court, as such an order would amount in 
 reality to a decree in the cause, Craig v. Craig, 1 Cham. R. 41. 
 
 In fixing the amount of alimony to be paid, the husband's income is the 
 proper guide, Severn v. Severn, 1 Grant, 109; McCulloch v. McCuUoch, 
 10 Grant, 320 ; allowance increased from £25 to £200 per annum. It being 
 shown that the hisband's income had increased, Severn v. Severn, 7 
 Grant, 109. 
 
 The test for the allowance of costs in an alimony suit seems to be 
 whether or not they have been vexatiously incurred, Glennie v. Glennie 
 1 Cham. R. 155. 
 
 An order or decree for alimony may now be registered against the 
 lands of the defendant, 2S Fie, c. 17, *. 4 
 
14 CHANCERY ACT. 
 
 XXXI. In the case of Lunatics, Idiots and persons of 
 unsound mind, and their Property and Estates, the juris- 
 diction of the Court shall include that which in England 
 is conferred upon the Lord Chancellor by a Commission 
 from the Crown, under the Sign Manual. 9 V. c. 10, s. 1 . 
 
 As to the distinction between the jurisdiction exercised by the Lord 
 Chancellor in Chancery and in Lunacy, see Murray v. Frank, 2 Dick. 
 555 ; Sherwood v. Sanderson, 19 Yes. 280. 
 
 There are according to Coke " four manners cf non compos mentis," 
 to whom the Royal Perogative extends : 1. Idiot, or fool natural. 2. He 
 who was of good and sound memory, and by the visitation of God has 
 lost it. 3. Lunatieus qui gaudet lucidis intSrvallis, and sometimes is of 
 good and sound memory, and sometimes non compos mentis. 4. He that 
 is so by his own act as a drunkard, Beverley's case, 2 Co., pt. 4. 
 
 XXXII. The word " Lunatic " is used in the subse- 
 quent sections of this Act as including an Idiot or other 
 person of unsound mind. 9 V. c. 10, s. 1. 
 
 The words " lunatic," " idiot," " unsound mind," are the legal terms 
 usually introduced into modern Acts of Parliament to denote mental 
 incapacity. The latter term is that which is most commonly used, as 
 included in the expression " non compos mentis," and less open to objec- 
 tion than either of the other terms, ^x parte Barnsley, 3 Atk. 168 f and 
 see Re McSherry, 10 Grant, 390. 
 
 XXXIII. The Court may, on sufficient evidence, de- 
 clare a person a lunatic without the delay or expense of 
 issuing a Commission to inquire into the alleged lunacy, 
 except in cases of reasonable doubt. 20 V. c. 56, s. 5. 
 
 The Court may now inquire into and determine the alleged lunacy, 
 with or without the aid of a jury, but the alleged lunatic has a right to 
 demand that the enquiry be submitted to a jury, 28 Vic. c. 11, s. 5; the 
 enquiry must be confined to the question whether or not the person is, at 
 the time of such enquiry, of unsound mind, and incapable of managing 
 his affairs, Ibid. 
 
 The great object contemplated in all the proceedings is the promotion 
 of the benefit and advantage of the particular iudividual. Re Dyce Som 
 bre, 1 Mac. & G., 116; Oxenden v. Compton, 2 Ves. 69. 
 
 There are cases in which the Court, in the exercise of its discretion, 
 may consider that the proceedings would not tend to this end, though 
 
CHANCERY ACT. 15 
 
 the mental infirmity may be such as fully to support them, Lord Ward's 
 case, 2 M. it K. , 64 ; Brodie v. Barry, 2 V. & B. 36 ; and there are other* 
 in which, from even a less degree of mental incapacity, it is necessary 
 for the interests of the individual that he and his property should receive 
 protection, Gibson v. Jeyes, 6 Yes. 26T ; Ridgway v. Darwin, 8 Ves. 66 ; 
 lie Holmes, 4 Buss. 182. 
 
 Notice of the application must be served upon the alleged lunatic, and 
 any Counsel or other person he may desire to see in relation to the matter 
 must be allowed access to him, Re Miller, 1 Cham. R. 215 ; but notice 
 may be dispensed with where service on the lunatic would be dangerous 
 to him, Re Patton, 1 Cham. R. 192. 
 
 XXXIV. When a Commission has been issued and an 
 inquisition thereupon returned into Court, by which a 
 person is found Lunatic, in case any one entitled to tra- 
 verse the inquisition desires to do so, he may within 
 three months from the day of the return and filing of the 
 inquisition, present a petition for that purpose to the 
 Court, and the Court shall hear and determine the peti- 
 tion subject to the following provisions : 9 V. c. 10, s. 2. 
 
 1. In every order giving effect to such petition, the 
 Court shall limit a time not exceeding six months from 
 the date of the order, within which the person desiring 
 to traverse, and all other proper parties, shall proceed to 
 the trial of the traverse ; but the Court may under the 
 special circumstances of any case, and upon a petition 
 being presented for that purpose, and upon the circum- 
 stances being substantiated upon affidavit, allow the tra- 
 verse to be had or tried after the time limited ; and in 
 such special case, the Court may make such orders as 
 seem just ; 9 V. c. 10, s. 3. 
 
 2. The trial may be ordered to take place in any Court 
 of Record in Upper Canada, or before a Judge of the 
 Court of Chancery with the aid of a Jury, according to 
 the circumstances of the case and the situation of the 
 parties ; ^f V. c. 10, s, 3—20 V. c. 66, s. 13. 
 
 3. The Court may order that the person to traverse, if 
 he is not the party who has been found Lunatic, shall. 
 
16 CHANCERY ACT. 
 
 within one month after the date of the order, file with 
 the Registrar of the Court a bond, with one or more sure- 
 ties, in favor of the Registrar for the time being, and 
 conditioned for all proper parties proceeding to the trial 
 of the traverse within the time limited; such boad before 
 the filing thereof being approved of and certified to be 
 sufiicient by the Judge of the County Court of the 
 County in which the parties reside, or by one of the 
 Judges or Masters of the Court of Chancery ; 
 
 4. Every person who does not present his petition, or 
 who neglects to give the security, or who does not pro- 
 ceed to the trial of the traverse, within the times respec- 
 tively limited therefor, and the heirs, executors and 
 administrators of every such person, and all others claim- 
 ing through him, shall be absolutely barred of the right 
 of traverse. 9 Vic. c. 10, s. 3. 
 
 As to the mode of proceeding, where the inquiry is had by the Court, 
 with or without a jury, or before a Court of Record, see 28 Vic. c. 17 
 0. 5. 
 
 A finding of insanity under an inquisition may be traversed, but a find- 
 ing of sanity cannot, Hume v. Burton, 1 Ridg. P. 0. 313. 
 
 By the Common Law, where the King becomes seised of any estate of 
 freehold or inheritance, by matter of record, whether judicial or ministe- 
 rial, or by matter of fact found by office, the party aggrieved could have 
 no traverse of the inquest, but he was put to his petition of right. The 
 remedy by petition having been found inconvenient, the stat. 34 Edw. 3, 
 c. 14, provided that in certain cases, after the return of the office in 
 Chancery, the aggrieved party might traverse the office in Chancery, 
 and the process was directed to be sent into the King's Bench to be 
 tried according to law. By stat. 2 & 3. Edw. 6, it was providedi 
 that if any person be untruly founi lunatic or idiot, every person and 
 persons aggrieved by such ofSce or inquisition shall and may have 
 his or their traverse to the same, immediately, or after, at his or their 
 pleasure, and proceed to trial therein, and have like remedy and advan- 
 tage as in other cases of traverse upon untrue inquisitions or offices 
 found. This statute applies not to particular inquisitions ouly, but to 
 all inquisitions, Co. Liti. 116; 12 East, 115. * 
 
 A person traversing an inquisition is considered in the nature of a 
 defendant opposing the title found for the Crown, and not in the nature 
 of a plaintiff, Reffina v. Mason, 2 Salk. 447 ; Rex v. Roberts, 2 Str. 1208, 
 
CHANCERY ACT. 17 
 
 X traverse to the retui^a of an inquisition finding a person a non compos 
 mentis seems a. right by law, though the Court is not dissatisfied with 
 the return upon the eyidence, Ex parte Feme, 5 Ves. 832 ; Ex parte 
 Wragg, 5 Ves. 450 ; Ex pa,rte Ward, 6 Ves. 569; Ex parte Oranmer, 12 
 Ves. 445 ; Sherwood v. Sanderson, 19 Ves. 280. 
 
 A party having been found a lunatic under two inquisitions, the Court 
 refused to allow him to traverse the second ; but such inquisitions are 
 not conclusive, and m(!fcy be again questioned in actions at law or by suits 
 in equity, Ex parte Samsley, 3 Atk. 184. 
 
 The alienee of a lunatic, or other person having a title tOj or interest 
 in, his land, may traverse an inquisition as well as the lunatic himself 
 and a person who has entered into a contract with a non compos for the 
 purchase of any portion of his property, is such an equitable alienee as 
 will give him the right to traverse. 
 
 The Court may, upon petition, quash a commission of lunacy and the 
 inquisition taken under it, without putting the party to the expense and 
 delay of a traverse, Re Milne, 11 Grant, 153; but where the Judge who 
 granted the commission thought a prima facie case of insanity made out, 
 and the jury found the insanity, the Court, though quashing the inquisi- 
 tion, refused to charge the party applying for the commission with costs, 
 Ibid. 
 
 XXXy. In case the Court declares a person a lunatic 
 without issuing a Commission, any person who might 
 traverse an inquisition to the same effect, may move 
 against the order containing the declaration, or may ap- 
 peal therefrom, as the case requires ; and the right so to 
 move or appeal shall as to time be subject to the same 
 rules as the right to traverse. 20 V. c. 56, s. 5. 
 
 Any order in a matter of lunacy by a single Judge shall be subject to 
 a hearing before the full Court, and any order of the full Court shall be 
 subject to an appeal to the Court of Error and Appeal, 28 Vic. c. IT, s. 8. 
 
 XXXVI. In case the Court be dissatisfied with the 
 verdict returned upon a traverse, the Court may order a 
 new trial, or more than one new trial as in other cases. 
 9 V. c. 10, s. 4. 
 
 XXXVII. In order to afford due protection to the 
 property of Lunatics, the following provisions shall in 
 erery case be observed : 9 V. c. 10, s. 5. 
 
18 CHANCERY ACT. 
 
 1. The Committee of the estate shall give two or more 
 responsible persons as sureties, in double the amount of 
 the personal estate, and of the annual rents and profits of 
 the real estate, for duly accounting for the same once in 
 every year, or oftener if required by the Court ; and the 
 security shall be taken by bond or recognizance in the 
 name of the Registrar of the Court for the time being, in 
 such manner as the Court or a Master thereof may di- 
 rect, and the same shall be filed in the office of the Regis- 
 trar ; 
 
 2. The Committee of the estate shall, within six months 
 after being appointed, file in the office of the Registrar a 
 true inventory of the whole real and personal estate of 
 the Lunatic, stating the income and profits thereof, and 
 setting forth the debts, credits and effects of the Lunatic, 
 so far as the same have come to the knowledge of the 
 Committee ; 
 
 3. If any property belonging to the estate be discovered 
 after the filing of an inventory, the Committee shall file 
 a true account of the same from time to time, as the 
 same is discovered ; and 
 
 4. Every inventory shall be verified by the oath of the 
 Committee. 9 V. c. 10, s, 6. 
 
 Where the application is made to a Judge to declare a person a lunatic, 
 it is now usual to have the name of the proposed Committee, affidavits of 
 his fitness, and as to the amount of the lunatic's estate, submitted to the 
 Judge before any order is drawn, and in such case the person is declared 
 a lunatic, the Committee appointed and the amount in which he is to 
 give security fixed, by the same order. This is done to ayoid the delay 
 and expense occasioned by a reference to a Master ; but a reference is 
 still sometimes ordered. 
 
 The Court cannot appoint a Committee of a lunatic on his giving his 
 own security only. Re Ward, 2 Cham. R. 188 ; 3 U. C. L. J. N. S, 206 ; 
 but where the personal estate of the lunatic consisted of a mortgage for 
 a large amount which was over due, and the object in getting a com- 
 mittee appointed was to take proceedings to foreclose, the Committee 
 was ordered to give security in double the annual income of the real es- 
 tate, and doable the amount likely to be realized from the personal 
 estate, Rt Davis, V. C. Mowat, 25th Feb., 1867. 
 
CHANCERY ACT. 19 
 
 The Committee of the person does not give security, and will not be 
 accepted as a surety for the Committee of the estate, Re Burton, Ex 
 parte Mount, 21 L. J., Ch. 221. 
 
 As to the duties of the Committee of the person and estate, see Elmer's 
 Pr. 83, et seq. 
 
 XXXVIII. Whenever the personal estate of a Lunatic 
 is not sufficient for the discharge of his debts, the fol- 
 lowing steps may be taken : 9 V. c. 10, s. 7. 
 
 1. The Committee of his estate shall petition for 
 authority to mortgage, lease or sell so much of the real 
 estate as may be necessary for the payment of such 
 debts ; 
 
 2. Such petition shall set forth the particulars and 
 amount of the estate real and personal of the Lunatic, 
 the application made of any personal estate, and an ac- 
 count of the debts and demands against the estate ; 
 
 3. The Court shall, by one of the Masters or other- 
 wise, inquire into the truth of the representations made 
 in the petition, and hear all parties interested in the real 
 estate ; 
 
 4. If it appears to the Court that the personal estate 
 is not sufficient for the payment of debts, and that the 
 same has been applied to that purpose as far as the cir- 
 cumstances of the case render proper, the Court may 
 order the real estate or a sufficient portion of it to be 
 mortgaged, leased or sold either by the Committee or 
 otherwise ; 
 
 5. The Court shall direct the Committee to discharge 
 such debts, out of the money so raised, and the Court 
 may order the Committee to execute conveyances of the 
 estate, and to give security for the due application of the 
 money, and to do such other acts as may be necessary 
 in such manner as the Court may direct ; and 
 
 6. In the application of any moneys so raised, the 
 debts shall be paid in equal proportion without giving 
 any preference to those which are secured by sealed in- 
 struments. 
 
20 CHANCERY ACT. 
 
 XXXIX. When the personal estate, and the rents, 
 profits and income of the real estate of the Lunatic, are 
 insufficient for his maintenance or that of his family, or 
 for the education of his children, an application may be 
 made by the Committee, or by any member of the 
 family of the Lunatic, that the Committee be authorized 
 or directed to mortgage or sell the whole or part of the 
 real estate, as may be necessary ; upon which the like 
 reference and proceedings shall be had, and a like order 
 made, as for payment of debts. 9 V. c. 10, s. 8. 
 
 XL, In case of any mortgage, lease or sale being 
 made, the Lunatic and his heirs, next of kin, devisees, 
 legatees, executors, administrators and assigns, shall 
 have the like interest in the surplus which remains of 
 the money raised as he or they would have in the estate, 
 if no mortgage, lease or sale had been made ; and such 
 money shall be of the same nature and character as the 
 estate mortgaged, leased or sold ; and the Court may 
 make such orders, as are necessary for the due applica- 
 tion of the surplus. 9 V. c. 10, s. 9. 
 
 XLI. When a Lunatic is seised or posessed of real 
 «state, by way of mortgage, or as a Trustee for others in 
 any manner, the Committee may apply to the Court for 
 authority to convey such real estate to the person entitled 
 tliereto, in such manner as the Court may direct ; and 
 thereupon the like proceedings shall be had as in the 
 case of an application to sell the real estate ; and the 
 Court upon hearing all the parties interested may order 
 a conveyance to be made ; and on the application, by 
 bill or petition, of any person entitled to a conveyance, 
 the Committee may be compelled by the Court, after 
 hearing all parties interested, to execute the conveyance. 
 9 V. c. 10, s. 10. 
 
 If the Mortgagor is desirous of paying off his mortgage he should give 
 notice to the Committee. 
 
CHANCERY ACT. 2t 
 
 If the Mortgagor is satisfied with a vesting order under the Trustee 
 Act, and does not require a re-oonreyance, the moat convenient course is 
 for the Oommittee to obtain leave for him to pay in his money to the 
 credit of the Lunacy, and then by petition, to obtain the vesting order" 
 But if he requires a re-conveyance, it is the duty of the Committee, by 
 petition, to obtain an order authorizing him on payment of the money 
 into Court, to execute such re-conveyance. 
 
 The costs incurred in the lunacy are paid out of the Lunatic's estate; 
 Ex parte Richards, Re Lewis, 1 J. & W. 264 ; and those of the re-convey- 
 ance by the Mortgagor. If the Mortgagor presents the petition he may 
 have to pay all the costs, unless the Committee had refused to present it. 
 Re Wheeler, 1 D. M. <fe G. 434. The petition by the Committee should 
 not be served upon the Mortgagor, Re Rowley, 82 L.J. N. S. Ch. 168. 
 
 An ad interim Committee cannot recovey. Re Poulton, 1 Mac. & G. 100. 
 
 XLII. Every conveyance, mortgage, lease and assur- 
 ance made by the Committee under direction of the 
 Court, pursuant to any of the provisions of this Act, shall 
 be as valid as if executed by the Lunatic when of sound 
 mind. 9 V. c, 10, s. 11. 
 
 XLIII. The Court may compel the specific perform- 
 ance of any contract made by a Lunatic while capable 
 of contracting, and may direct the Committee to execute 
 all necessary conveyances for the purpose ; and the pur- 
 chase money, or so much thereof as remains unpaid, 
 shall be paid to the Committee or otherwise as the Court 
 directs. 9 V. c, 10, s. 12. 
 
 XLIV. The Court may order any expenses and costs 
 of and relating to the said petitions, orders, directions 
 and conveyances to be paid and raised from the lands, 
 rents or personal estate of the Lunatic, in respect of 
 which the same were respectively made, in such manner 
 as the Court thinks proper. 9 V. c. 10, s. 13. 
 
 XLV. In regard to the partition and sale of estates of 
 joint tenants, tenants in common and coparceners, the 
 Court shall possess the same jurisdiction as by the laws 
 of England on the tenth of August, one thousand eight 
 
22 CHANCERY ACT. 
 
 hundred and fifty, was possessed by the Court of Chan- 
 cery in England, and also as by the laws of Upper Can- 
 ada is possessed by the Courts of Queen's Bench and 
 Common Pleas or by the County Courts. 13, 14 V. c. 
 50, s. 4. 
 
 Where on the hearing of a cause for partitioa it was shewn that a 
 division of the land would be less beneficial to the owners, than a 6ale, 
 the Court without waiting for any return to that effect, ordered the lands 
 to be sold, Beiinett v. Bennett, 8 Grant, 446. 
 
 The fact that there is an outstanding term in lands to portions of 
 which infailits are entitled, is no defence to a bill of partition, although 
 it may influence the Court in deciding between a sale or partition of the 
 estate, Fitzpatrick -v. Wilson, 12 Grant, 440. 
 
 In suits between joint owners for partition or sale, the costs are to be 
 borne by the parties in proportion to their respective interests in the 
 property, except that in the case of partition, the Court, if it sees fit, may 
 give no costs to either party up to the hearing, Carlwright v. Diehl, 1 3 
 Grant, 860 ; Bernard v. Jarvis, 1 Cham. R. 24. 
 
 The costs in partition suits are, as in other suits, party and party costs ; 
 and where any of the parties are not eui juris costs as between so- 
 licitor and client, are not decreed even by consent, Harkness v. Conway, 
 12 Grant, 449. 
 
 Where a decree, which reserved no further directions, directed that a 
 sale or partition of the property should take place according as the 
 master should consider either course more for the interest of the 
 parties, but contained no directions as to the conveyances or possession, 
 or the execution of deeds, and the master reported in favour of partition ; the 
 Court on motion, ordered the execution of conveyances, and the delivery 
 of possession, 0' f one v. O'Lone, 2 Grant, 642. 
 
 XLVI. In such cases, any Decree, Order or Report by 
 which a partition or sale is declared or effected, or any 
 Deed executed by the Master of the Court, to give effect 
 to such partition or sale, shall have the same effect at 
 law and in equity as the Record of a Return in the Court 
 of Queen's Bench or Common Pleas or in the County 
 Court has in matters of partition, or as Sheriff's Deeds 
 now have in other cases. 13, 14 V. c. 60, s. 4. 
 
 XLVII. Any partition or sale made by the Court shall 
 be as effectual for the apportioning or conveying away of 
 
^- yji~\ (n*f>/U U^cj u„.^Ct^ A!tt4 ^-wfc.^-,-- rt^:^ A. s^^ ^ 
 
CHANCERY ACT. 23 
 
 the estate or interest of any married woman, infant or 
 lunatic, party to the proceedings by which the sale or 
 partition is made or declared, as of any person compe- 
 tent to act for himself. 13, 14 V. c. 50, s. 6. 
 
 XLVIII. An oflbice copy of the Decree, Order or Report 
 declaring a partition, shall be sufficient evidence in all 
 Courts of the partition declared thereby, and of the several 
 holdings by the parties of the shares thereby allotted to 
 them. 13, 14 V. c. 50, s. 4. 
 
 XLIX. The Court shall also have jurisdiction respect- 
 ing the custody of infants in the cases and subject to the 
 provisions mentioned in the Statute relating to the custody 
 of infants. 18 V. c. 126. 
 
 The Statute here mentioned is Con. Stat. U. C, c. li. 
 
 L. When an infant is seised or possessed of or entitled 
 to any real estate in fee, or for a term of years, or other- 
 wise howsoever, in Upper Canada, and the Court is of 
 opinion that a sale, lease or other disposition of the same 
 or of any part thereof, is necessary or proper for the main- 
 tenance or education of the infant, or that, by reason of 
 any part of the property being exposed to waste and dil- 
 apidation, or to depreciation from any other cause, his 
 interest requires or will be substantially promoted by 
 such disposition, the Court may order the sale, or the 
 letting for a term of years, or other disposition of such 
 real estate or any part thereof, to be made under the 
 direction ol the Court or one of its officers, or by the 
 guardian of the infant, or by any person appointed by the 
 Court for the purpose, in such manner and with such 
 restrictions as to the Court may seem expedient, and 
 may order the infant 1o convey the estate as the Court 
 thinks proper. 12 V. c. 72, ss. 1, 2,-13, 14 V. c. 50, 
 s. 8. 
 
 For the mode of proceeding under the provisions of this Act, see Ord 
 527, et seq. 
 
24 CHANCERT ACT. 
 
 In directing the sale of infants' real estate, the Court is not governed 
 by the consideration of what is most for their present comfort, but what 
 is fo^ their ultimate benefit; the Court will order a sale of a portion of 
 an infants' estate to'save the rest when it is made to appear to be for the 
 benefit of the infant, Re McDonald, 1 Cham. R., 91. 
 
 On applying.for the sale of real estate settled upon infants, the mother' 
 by whom the application was made, was required to join in the convey- 
 ance for the purpose of surrendering the life interest vested in her unde^" 
 the settlement, Ee Kennedy, 1 Cham. R., 91. 
 
 Where the estate of the infant is small, it is usual to advertise for 
 tenders, to save the expense of a sale by auction. Re Haniell, 1 Cham. R- 
 189. 
 
 Where a reference is directed to a Master to enquire what would be a 
 proper sum to allow for the maintenance and education of an infant, the 
 order should not contain any authority for the payment, until the report 
 s brought before the Court for approval, Murphy v. Lamphier, 12 Grant, 
 241. 
 
 Where a contract for the sale of an infants' estate had been approved 
 of by the Court, it is not necessary for the purpose of obtaining a Decree 
 for specific performance, to allege that the sale was a proper one under 
 this Statute, McDonald v. Garrett, 8 Grant, 290. 
 
 On an application under this section for the sanction of the Court to a 
 renewal of a lease made by the infant's ancestor, and containing a cove- 
 nant for renewal none of the circumstances under which alone the Court 
 s empowered to act, being alleged, an order was refused, Re Jacket, 3 U. 
 0. L. J. N. S., 70 ; such an application can be made under the Imp, Act, 
 11 Geo. IV., & 1 Wm. IV. c. 65, s. 16, Ibid. 
 
 The guardian of an infant appointed by the Court, without the sanction 
 of the Court, executed a lease for a term of years, during the existence of 
 which the infant died, and an application having been made for the ten- 
 ant to deliver up possession, he was ordered to do so, and on payment 
 into Court of the arrears of rent, he was permitted to remove the build- 
 ings and erections put by him upon the property, doing no damage to the 
 freehold, but the Court refused to make him any allowance out of the 
 rents, for improvements made by him on the property, Tovmsley v. Niel, 
 10 Grant, 72. 
 
 LI, But no sale, lease or other disposition shall be 
 made against the provisions of any will or conveyance 
 by which the estate has been devised or granted to the 
 infant or for his use. 12 V., c, 72, s, 2. 
 
 Where property was devised by a testator to his widow for the main- 
 tenance of his family, until the youngest child should come of age, and 
 
i./. 6^-i'>--^'<^'^-2.S1L 
 
CHANCERY ACT. 25 
 
 then to one of his sons charged with certain payments to his widow and 
 the children, with a provision for the substitution of another son in the 
 event of the devisee dying under age or without issue, it was held that 
 the court had no jurisdiction to order a sale or mortgage of such property , 
 and that such property was not the property of the infants within the 
 meaning of the act, Re Callicott, 1 Cham. R. 182. 
 
 As to the power of the Court to order leases of infants' lands, unless 
 the infant is indefeasibly seised in fee or in tail, in possession, see Ex 
 parte Evans, 2 M. & K 318 ; Ex parte Leigh, 15 Sim. 445 ; Re Clark, 1 L. 
 E. Ch. 292. 
 
 LII. The application shall be ia the name of the 
 infant by his next friend, or by his guardian ; but shall 
 not be made without the consent of the infant if he is of 
 the age of seven years or upwards. 12 V. c. 72, s. 1. 
 
 The petition is to be presented in the name of the infant, by his guar- 
 dian, or by a person applying by the same petition to be appointed 
 Guardian, Ord. 528 ; when the infant is above the age of seven years he 
 is to be examined apart, upon the matter of the petition, and his consent 
 thereto, and when he is under the age of seven, the fact is to be certified 
 by the Judge or Master before whom he is produced, Ord. 532. 6t?2<r£i£ct-v<f^. /y^. 
 
 Where a petition is presented for the appointment of a guardian to an 
 infant, the infant becomes a ward of court, Stuart v, Marqida of Bute, 9 
 H. L. 440 ; also where an order is made respecting the infant under the 
 Trustee Relief Act, Re Hodge, 8 K. & J. 213, 218, but see Re Hillary, 2 
 Dr. & Sm. 461 as to the effect of the payment into court of money belong- 
 ing to an infant. 
 
 LIII. Where the Court deems it convenient that a con- 
 veyance should be executed by some person in the place 
 of the infant, the Court may direct some other person in 
 the place of the iniant, to convey the estate. 12 V. c. 
 72, s. 3. 
 
 LI V. Every such conveyance whether executed by the 
 infant or some person appointed to execute the same in 
 his place, shall be as effectual as if the infant had executed 
 the same, and had been of the age of twenty-one years 
 at the time. 12 V. c. 72, s. 3. 
 
 LV. The moneys arising from any such sale, lease or 
 
26 CHANCERY ACT. 
 
 Other disposition, shall be laid out, applied and disposed 
 of in such a manner as the Court directs. 12 V. c. 
 
 72, s. 4. 
 
 The rule is that money belongiag to an infant is not ordered, in equity, to 
 be paid to his guardian, whether appointed by the Surrogate Court or 
 otherwise, but is secured for the benefit of the infant under the authority 
 of the Court; but the rule may not apply where the amount is gmall and 
 is required for the maintenance, education or other immediate use of the 
 infant, or where some other special circumstances exist justifying an ex- 
 ception to the rule, Mitchell v. Ritchie, 13 Grant, 4i5. 
 
 But where the infant was resident in a foreign country, the Court 
 directed money belonging to the infant to be invested for his benefit in the 
 securities of such foreign country, Sanborn v. Sanborn, 11 Grant, 359. 
 
 An application to invest the money of an infant, pursuant to an order 
 of Court, should be made by the infant, not by the person wishing to 
 borrow, Re Healey, 1 Cham. R. 190. 
 
 LVI, On any sale or other disposition so made, the 
 money raised, or the surplus thereof, shall be of the 
 same nature and character as the estate sold or disposed 
 of; and the heirs, next of kin, or other representatives of 
 the infant, shall have the like interest in any surplus 
 which may remain of the money at the decease of the 
 infant, as they would have had in the estate sold or dis- 
 posed of if no sale or other disposition had been made 
 thereof. 12 V- c. 72, s. 5. 
 
 LVII. If any real estate of an infant is subject to 
 dower, and the person entitled to dower consents in 
 writing to accept in lieu of dower any gross sum which 
 the Court thinks reasonable, or the permanent invest- 
 ment of a reasonable sum in such manner that the inter- 
 est thereof be made payable to the person entitled to 
 dower during her life, the Court may direct the payment 
 of such sum in gross or the investment of such other sum, 
 out of the proceeds of the sale of the Real Estate of the 
 Infant. 12 V. c. 72, s. 6. 
 
 LVIII. Whereas the law of England was at an early 
 
f7-^/ct,<.,.y6r-c^c^ u ^i/^ c.^/^ ccL.^^ Cr-zz^ c&yt^jf ^J^t-ct* 
 
 yf^ e>i 'U^e^c^oKy A-, cx^c^£^ Lt,^^^..^->-cJs, ^^^^~~^^»/ rt <u>w,>^x-*;,„^ 
 
CHANCERY ACT. 27 
 
 period introduced into Upper Canada, and continued to 
 be the rule of decision in all matters of controversy rela- 
 tive to property and civil rights, while at the same time, 
 from the want of an equitable jurisdiction, until the 
 fourth day of March, one thousand eight hundred and 
 thirty-seven, it was not in the power of mortgagees to 
 foreclose, and mortgagors out of possession were unable 
 to avail themselves of their equity of redemption, and in 
 consequence of the want of these remedies the rights of 
 the respective parties, or of their heirs, executors, ad- 
 ministrators or assigns, may be attended with peculiar 
 equitable considerations, as well in regard to compensa- 
 tion for improvements, as in respect to the right to 
 redeem, depending on the circumstances of each case, 
 and a strict application of the rules established in Eng- 
 land might be attended with injustice ; the Court shall 
 have authority in every case of mortgage, where, before 
 the said fourth day of March, one thousand eight Imndred 
 and thirty-seven, the estate had become absolute in law, 
 by failure in performing the condition, to make such 
 decree in respect to foreclosure or redemption, and with 
 regard to compensation lor improvements, and generally 
 with respect to the rights and claims ot the mortgagor 
 and mortgagee, and their respective heirs, executors, 
 administrators or assigns, as may appear to the Court 
 just and reasonable under all the circumstances of the 
 case, subject however, to appeal by either party. 7 W. 
 4, c. 3, s. 11. 
 
 The Court of Chancery may under certain circumstances refuse redemp- 
 tion, notwithstanding twenty years have not elapsed since the mortgagor 
 went out of possession, Simpson v. Smyth, 1 Error and Appeal, R. 172. 
 
 In cases of actual mortgage, that is where the proviso for redemption 
 appears on the face of the instrument creating the incumbrance, the 
 dormant equities act does not apply ; but such cases are to be dealt with 
 under the 11th clause of the original Chancery Act, Hall v. CoMwell, 8 
 U. C. L. J. 93. 
 
 The allowance for improvements is discretionary with the Court under 
 
28 CHANCERY ACT. 
 
 all the pircumgtances ; where upon a reference to the Master to take the 
 iisaal acco'ints under a decree for redemption, where the mortgage had 
 become abaolule before 1837, the Master had allowed the mortgagee in 
 possession the price of certain valuable improvements, stating that he 
 made such allowance solely under the provision of the statute, the Court on 
 appeal referred the matter back to the Master, leaving it open to him to 
 allow or disallow such improvements, Harrison v. Jones, 10 Grant, 99. 
 
 LIX. Whereas by the act to establish the Court of 
 Chancery in Upper Canada, it was provided that the 
 rules of decision in the said Court should be the same as 
 governed the Court of Chancery in England ; and 
 whereas in regard to claims upon, or interests in real 
 estate arising before the said date, it is just to restrict the 
 future application of the said rules of decision to cases 
 of fraud, and in regard to other cases, it is expedient 
 to extend thereto in manner hereinafter provided, the 
 authority so given to the court as aforesaid in case of mort- 
 gages : Therefore, no title to or interest in real estate 
 which is valid at law, shall be disturbed or otherwise 
 affected in Equity by reason of any matter or upon any 
 ground which arose before the 4th day of March, A. D. 
 1837, or for the purpose of giving effect to any equitable 
 claim, interest or estate, which arose before the said date, 
 unless there has been actual and positive fraud in the 
 party whose title is sought to be disturbed or affected. 
 18 V. c. 124, s. 1. 
 
 This section does not apply to cases of actual mortgage, where the 
 proviso for redemption appears on the face of the instrument creating the, 
 incumbrance ; such cases are to be dealt with under section 11 of the 
 original Chancery Act, Hall v. Coldwell, 8 U. C. L. J. 93. 
 
 It was held by the Court of Chancery that express trusts are not witliin 
 the statute relating to Dormant Equities, Atty. Gen. v. Orassett, 6 Grant, 
 486 ; but the Court of Appeal has decided that the act applies as well to 
 express trusts, as to trusts created by implication of law, Wragg v. Beck- 
 ett, Y Grant, 220 ; qutere whether the act applies to every case of express 
 trust, or whether a case of express trust so direct and plain might not 
 arise, that the Court would feel authorised to hold that the statute does 
 not extend to it, though no exception of express trusts is contained In 
 the Act, Jtti/. Gen. u. Grassett, (in appeal) 8 Grant, 130. 
 
CHANCERY ACT. 29 
 
 In jlrner v. McKenna, 9 Grant, 226, the three Judges of the Court of 
 Chancery decided, [1] that notwithstanding the Dormant Equities act, 
 the Court would grant relief in the case of an equitable title to land 
 which had been embraced in a conveyance by mistake, where the legal 
 title of the grantee under such conveyance was not asserted before the 
 passing of the Chancery Act, and where the equitable title of the grantor 
 had been asserted by possession after the passing of that Act ; and [2] 
 that it was an actual fraud within the meaning of the exception in the 
 dormant equities act, for the grantor under the circumstances to assert' 
 his legal title. 
 
 In Malloch v. Pinhey, 9 Grant, 650, the first point decided in Arner v. 
 McKenna, was decided in the same way by V. 0. Esten, in favor of a 
 plaintiff who filed a bill to have an absolute deed made before the pass- 
 ing of the Chancery Act declared a mortgage, and forredemption, where 
 the defeasible nature of the title had been admitted, and no absolute title 
 had been asserted till long after the passing of that act. The V. C. also 
 expressed his opinion that the decision in Hall v. Caldwell applied to this 
 case, though this point was not determined. 
 
 In Tiffany v. Thompson, 9 Grant, 244, Vankoughnet, C, said, " In my 
 opinion the Dormant Equities Act does not apply to a case of express 
 trust, for breach of which the cestui que trust seeks redress against the 
 trustee, and in the case of such a trust as the present, in which the 
 trustee is called to account, it can form no defence to him. I think the 
 rule of construction should be that the act does not apply as between 
 trustee and cestui que trustent to the cases of such trust, but that ex- 
 ceptional cases arising upon such trusts may find protection under it. I 
 agree with what has been so well said by the late Chancellor, and T. C. 
 Spragge in Wragg v. Beckett, upon the question which I do not understand 
 to be settled by any judgment of the Court of Appeal." 
 
 LX. In regard to any other equitable claim or right 
 which may have arisen before said date, the Court shall 
 have authority (subject to appeal) to make sach Decree 
 as may appear to the Court just and reasonable, under 
 all the circumstances of the particular case, provided 
 that the suit be brought within twenty years from the 
 time when the right or claim arose ; and no further time 
 shall be allowed for bringing any such suit, notwith- 
 standing any disability of the claimant or of any one 
 through whom his right accrued. 18 V. c. 124, s. 2. 
 
 The Dormant Equities Act applies only to cases which arose before the 
 passing of the act, •Silcox v. Sells, 6 Grant, 237. 
 
30 CHANCERY ACT. 
 
 LXI. The Court shall have jurisdiction to entertain 
 appeals, by either party against any Order or Decree made 
 by the Judge of a County Court under the equitable 
 jurisdiction thereof, and the Court of Chancery shall 
 make such Order thereupon in respect to costs or other- 
 wise, or for referring back the matter to the Judge before 
 whom the same was first heard, as may be just and 
 proper. 16 V. c. 119, s 18. 
 
 Injunctiona to restrain the committing of waste or trespass to property 
 by unlawfully cutting, destroying or removing trees or timber, may be 
 granted by the Judge of any County Court, and such injunctions shall 
 only remain in force for a period of one month, unless sooner dissolved 
 on an application to the Court of Chancery ; but the power to grant such 
 injunctions shall not authorize the prosecuting of the suit in the County 
 Court, and the injunction may be extended and the suit further prosecuted 
 to judgment or otherwise in the Superior Court in the like manner as if 
 the same had originated in that Court, Con. Stat. U. C, t. 15, s. 35. 
 
 A defendant moving to dissolve an injunction issued from a County 
 Court, is not bound to have the proceedings returned from the County 
 Court ofSce, Abraham v. Shepherd, i Grant, 260 ; but, where the plaintiff 
 moves to extend an injunction issued in a County Court, it is his duty to 
 have the papers transmitted before the motion is heard, Stevenson v, Huff- 
 man, 4 Grant, 318. 
 
 Any claim entered on the Equity side of a County Court may be re- 
 moved by either party into the Court of Chancery by order of that Court, 
 to be obtained on a summary application by motion or petition supported 
 by afEdavit, of which reasonable notice shall be given to the opposite 
 party, and the order shall be made on such terms as to payment of costs, 
 or upon such other terms as to the Court of Chancery may seem just ; but 
 no claim shall be removed, unless the Court of Chancery be of opinion 
 that the nature of the claim renders it a proper one to be withdrawn 
 from the jurisdiction of the County Court, and disposed of in the Court 
 of Chancery, and the said Court of Chancery shall make the necessary 
 regulations for the practice to be observed in proceedings under this sec- 
 tion, Can. Stat. U. C, c. 15, s. 67. 
 
 A suit in the County Court can be removed into the Court of Chan- 
 cery only when the suit is one in which the County Court has jurisdic- 
 tion ; so where on an application to remove the suit it appeared that the 
 County Court had no jurisdiction to entertain it, the application was 
 refused, Martin v. Mitchell, 1 Cham. E. 384. 
 
 i»jfAs to what suits may be brought on the equity side of the County Court, 
 see Con. Stat. U. C. c. 15, s. 34. 
 

CHANCERY ACT. 31 
 
 "When a plaintiff filed his bill in the Court of Chancery to foreclose a 
 mortgage within the jurisdiction of the County Court, he was refused his 
 costs, the fact that the defendant is resident in another County than that 
 in which the land is situate being no reason for resorting to the Court of 
 Chancery, Connell v. Curran, 1 Cham. R. 11 ; but the necessity for 
 obtaining an order for substitutional service is a sufficient reason for 
 filing a bill in Chancery, Seath v. Mcllroy, 2 Cham. R. 93 ; or where 
 the defendant is resident out of the jurisdiction, Lawrasoh v. Fitzgerald, 
 9 Grant, 371 ; or where the defendants live in diflerent Counties, McLeod 
 V.Millar, 12 Grant, 194. Where the bill is filed in respectof a demand, not 
 exceeding £50, the plaintiff should proceed in Chancery, if there is a sub- 
 sequent incumbrance exceeding that sum, Hyman v. Roots, 11 Grant 
 202 ; Seaih v. Mcllroy, 2 Cham, R. 93. 
 
 LXII. The Court shall also have jurisdiction on any 
 appeal from the judgment or decision of the Commis- 
 sioners under the Act for the protection of the lands of 
 the Crown in Upper Canada, except as in the said Act 
 is otherwise provided; and the Court may alter, affirm 
 or annul, the decision of the Commissioners, or order 
 further inquiry to be made, or direct an issue touching 
 the matter in dispute, to be tried at law or before the 
 Court or a Judge thereof with the assistance of a Jury, 
 and may make such orders and directions therein for 
 payment of costs, and other matters respecting the same, 
 as to the Court seem just ; and the decree of the Court 
 shall be conclusive on the party appealing, as well as on 
 the Commissioners. 2 V. c. 15, s. 11. 
 
 LXIII. In every case in which the Court has authority 
 to order the execution of a deed, conveyance, transfer or 
 assignment of any property, real or personal, the Court 
 may make an order or a decree vesting such real or per- 
 sonal estate in such person or persons, and in such man- 
 ner, and for such estates, as would be done by any such 
 deed, conveyance, assignment or transfer if executed; 
 and thereupon the order or decree shall have the same 
 effect both at Law and in Equity as if the legal or other 
 estate or interest in the property had been actually con- 
 
32 CHANCERY ACT. 
 
 veyed, by deed or otherwise, for the same estate or 
 interest, to the person in whom the same is so ordered to 
 be vested, or in the case of a chose in action, as if such 
 chose in action had been actually assigned to such last 
 mentioned person. 20 V. c. 56, s. 8. 
 
 The Court caa make a vesting order ia those cases only in which it has 
 authority to order the execution of a deed, conveyance, transfer or assign- 
 ment of any property. So where the plaintiff in a mortgage suit for sale 
 has leave to bid, and becomes the purchaser, the Court cannot make an 
 order vesting the property in him, inasmuch as he is the person who, in the 
 event of a third person having become the purchaser, would have had to 
 execute the conveyance ; the mortgagor or his heirs not being proper par- 
 ties to such a conveyance, Ross v. Steele, 1 Cham. R. 94 ; Ee Williams, 
 21 L. J., N. S., Ch. 437 ; £owen v. Fox, 1 Cham. R 381. 
 
 A party purchasing under a decree of the Court, has a right to call for 
 evidence, shewing that persons whose interests were intended to be dis- 
 posed of, were alive at the time of such sale, before accepting title by 
 means of a vesting order. Slater v. Fisken, 1 Cham. R. 1 . 
 
 LXIV. The filing of a bill or the taking of a proceed- 
 ing, in which bill or proceeding any title or interest in 
 land is broiaght in question, shall not be deemed notice 
 of the bill or proceeding to any person not being a party 
 thereto, until a certificate by the Registrar or a Deputy 
 Registrar of the Court, in the form mentioned in this sec- 
 tion, has been registered in the Registry Office of the 
 County in which the land is situate : — 
 
 " I certify that in a suitor proceeding in Chancery be- 
 "tween A. B. and C. D., some title or interest is called 
 " in question in the following land (describing it.)" 
 
 But no certificate is required lo be registered of a suit 
 or proceeding for the foreclosure of a registered mort- 
 gage. 18 V. c. 127, s. 3. 20 V. c. 56, s. 9. 
 
 The form of certificate given in the recent Registry Act, ,S1 Vic. c. 20, 
 3. 5Y, differs from the above in requiring the addresses of the parties to 
 the suit to be given . 
 
 Where a certificate of lis pendent has been regis tered, and the bill is 
 afterwards dismissed, it is not necessary to obtain an order discharging 
 

CHANCERY ACT. 33 
 
 the certificate from the registry, the registration of the decree dismissing 
 the bill being sufficient for all purposes, Dexler v. Coaford, 1 Cham. 
 R. 22. 
 
 LXV. Every decree affecting land may be registered 
 in the Registry Office of the County where the land is 
 situate, on a certificate by the Registrar or a Deputy 
 Registrar of the Court, setting forth the substance and 
 effect of the decree, and the land affected thereby. 18 
 V. c. 127, s. 4. 
 
 No judgment, rule, order or decree for the payment of money in any 
 Court in Upper Canada shall create or operate as a lien or charge upon 
 lands or any interest therein, 24 Vic. c. 41, s. 10. 
 
 A decree for alimony may be registered so as to bind the lands of the 
 defendant, 23 Vic. c. 1 1, s. 4. 
 
 [Sections 66, 67 & 68 were repealed by 24 Tic. c. 41, s. 1.] 
 
 LXIX. In any case in which the Court requires an 
 issue to be tried by a jury, it shall not be necessary to 
 commence any feigned action in a Court of Law ; but 
 upon an office copy of the decree or order directing the 
 trial of the issue, being entered for trial in the same 
 manner as a Nisi Prius record is entered, the issue 
 shall be tried at the Assizes, or at the sittings of a County 
 Court in Upper Canada, in the same manner as issues 
 are tried in actions brought in the Superior Courts of 
 Law or in the County Courts, and the finding of the jury 
 shall be endorsed upon such office copy and signed by 
 the presiding Judge, and the office copy shall then be 
 transmitted to the Registrar of the Court of Chancery ; or 
 instead of directing an issue to be tried at law, the Court 
 may try the same by a jury without the intervention of a 
 Court of Common Law, and may issue a precept or order 
 directed to the Sheriff of any County the Cpurt sees fit, 
 requiring him to strike and summon a Jury for that pur- 
 pose ; and at the trial, one Judge or more of the Court of 
 Chancery may sit or preside. 20 V. c. 56, s. 13. 
 
 The order directing the issue specifies the question or questons of fact 
 S 
 
34 CHANCERY ACT. 
 
 to be submitted to the jury, and it usually provides that tte parties are 
 to be at liberty to read the depositions taken in the cause, of any witness 
 who may be dead, or incapable of attending the trial, Palmer v. Lord 
 Aylesbury, 15 Ves. 1'76 ; Watkins v. Jitchison,' 10 Hare. app. 46. 
 
 The order also directs at what assizes the issue is to be tried, and reserves 
 further directions, or adjourns the further hearing until after the trial. 
 
 A party to an issue is not, by going to trial, precluded from appealing 
 against the order directing the issue, Bullin v. Masters, 2 Phil. 290 ; 
 Parker v. Morrell, 12 Jur., 253. 
 
 When the plain tilf n«glects to proceed to trial of the issue, the opposite 
 party should move upon notice, that the plaintiff may proceed to trial at 
 the next assizes, or in default that the issue may be taken pro confesso, 
 Casbome v. Sarsham, 5 M. & C. 113, and where the defendant in the suit, 
 is made plaintiff in the issue the plaintiff may make the like motion, 
 Hartland v. Dancocks, 5 De G. & S.,. 561. But the Court will not adopt 
 this course under particular circumstances, or where material witnesses 
 were unable to attend at the trial, Hargrave v. Hurgrave, 8 Beav. 289 ; 
 or where by mistake the plaintiff has neglected to give notice of trial in 
 time, Variy v. Duncan, 11 Jur. 809 ; and see Reeve v. Hodsonill Jur. 344. 
 
 If any of the parties are dissatisfied with the verdict, they may apply 
 for a new trial, the motion for which is made to the Court of Chancery, 
 and not to the Court of Law, Bootle v. Blundell 19 Ves. 494. Under 
 special circumstances the Court has directed a third trial of an issue, 
 Hargrave v. Hargrave. 13 Jur. 463. As to the principles which guide 
 the Court in granting a new trial upon the ground of misdirection, see 
 Bennett v. Duke of Manchester, 2 W. E. 644; S. C. 23 L. T. 331. 
 
 The general rule with respect to the costs of an issue is that they follow 
 the event, and are given to the party who prevails at law, Rochester v. 
 Lee, 2 D. M. & G. 427; but this is liable to exceptions. The costs of 
 an issue directed on an interlocutory application may be disposed of after 
 the issue is decided, without waiting for the hearing, Duncan v. Varty 
 2 Phil. 696. 
 
 Trial by Jury in Chancery will not generally be directed where either 
 party desires a trial at law, Peters v. Rule, 1 W. E. 1*71 and cannot be 
 directed, except at a stage of the suit, and in circumstances in which it 
 has been the practice to direct an issue, Bradley v. Bevington, 4 Drew. 
 511; 6 Jar. N. S. 562. 
 
 The Court will not direct a trial before it, on an opposed application for 
 the purpose, before the hearing; where it is clear the question is proper 
 for such trial, the parties should agree to the application, to save the 
 ■expense of taking the evidence twice. George v. Whitinore, 26 Beav. 557. 
 
 LXX. In any suit instituted in the Court of Chancery 
 by a mortgagee or judgment creditor, or by any other per- 
 
CHANCERY ACT. 35 
 
 s6n having a charge on real property, for the foreclosure 
 ■or sale of property, and to which suit any judgment 
 creditor of the mortgagor or of the judgment debtor, or 
 of the person liable to the charge, is a defendant, personal 
 service on such defendant shall not be necessary, and it 
 shall be sufficient to serve the process of the Court, 
 whether the same be an office copy of the bill or an office 
 copy of the decree or decretal order, upon his Attorney 
 in the action at Law in which the judgment has been 
 recovered ; bat the plaintiff in any such suit in Chancery 
 may elect to serve the judgment creditor persoaally in- 
 stead of serving the Attorney. 20 V. c. 56, s. 14. 
 
 This section applies only to cases of foreclosure or sale by an incum- 
 brancer, Munro v. Keiley, 1 Cham. R. 23. 
 
 When under this section an office copy of the bill is served upon the 
 Attorney at law, the seven days notice of motion required by Ord. 107, must 
 be given, before the bill can be taken pro confesso ; but the notice of mo- 
 tion may be served on the attorney, Webster v. O'Closter, 6 Grant, 278. 
 
 In moving for an order pro confesso after service upon the attorney of a 
 judgment creditor, the affidavit of service must follow the words of the 
 act, and shew that the party served appears as the attorney of the creditor 
 on the roll of the judgment in respect of which he is made a party to the 
 suit, Cameron v. Phipps, 1 Cham. K. 4. 
 
 LXXI. An absent defendant may be served at any 
 place out of the jurisdiction of the Court, with a copy of 
 any bill or proceeding, without an application being pre- 
 viously made to the Court for the allowance of such ser- 
 vice, and the service shall be allowed on proof to the 
 satisfaction of the Court that the same was duly made. 
 20 V. c. 56, s. 15. 
 
 In practice this section was never acted upon until recently, as the 
 Court would not upon default of answer, grant an order pro confesso, 
 nntil an order limiting the time within which the defendant was to answer 
 had been obtained, and had been served personally upon him ; and thip 
 «ven allthough the endorsement upon the office copy of the bill required 
 by Ord. 86, had been altered so as to give the defendant thp same time for 
 answering, as the Court would give by the order authorizing service of 
 the bill out of the jurisdiction. 
 
36 CHANCERY ACT. 
 
 The necessity for obtaining an order giving leave to serve out of ibe 
 jurisdiction is now done away witli, and the time within which a defend- 
 ant is to answer, according to the distance of the place where served, is 
 regulated by a general order, Ord. 90. 
 
 The powers of the Court as to serving absent defendants have been 
 further extended by 28 Tic. c. 17, a. 12. 
 
 LXXII. All moneys that become subject to the control 
 and distribution of the Court, shall be paid in the name 
 of the Accountant General of the Court into the hands of 
 such person or body corporate, or be vested in the name 
 of the Accountant General in the public funds of the 
 province, or in such other securities, as the Court from 
 time to time directs, and all interest arising from the 
 sums so deposited or vested, shall be added to the prin- 
 cipal sum, and be distributed therewith to the persons 
 entitled to receive the same. 7 W. 4, c. 2, s. 7. 
 
 LXXIII. A fee of ten cents shall be paid to the Regis- 
 trar or Deputy Registrar, on the filing of every bill and 
 of every answer or demurrer, in addition toother fees and 
 charges thereon ; and such fee shall be paid in to an ac- 
 count to be called " The Suitors' Fee Fund Account," 
 which account shall be kept and managed as may from 
 time to time be directed by the Court, and the sums, at the 
 credit of such account, shall be applied by the Court as 
 may be necessary for the protection of infants and other 
 persons not sui juris on whose behalf proceedings may be 
 had in the Court, or may, by the Court, be ordered to be 
 had in other Courts. 20 V. c. 56, s. 20. 
 
 By 28 Vic. c, IT, s. 10, this section is amended by inserting the words 
 " or non compos mentis," immediately after the words sui juris. 
 
 LXXIV. All general orders of the Court existing when 
 this Act takes effect are hereby confirmed and declared 
 to be as effectual as if the same were hereby specially 
 enacted ; but the same may, from time to time, be sus- 
 pended, repealed, varied and re-enacted by the Courty 
 
A, nZv ^'Ity&^'c:' Tl^-L-.^CCi ^Ai-t-A-^t, /^l«XA ^CL-* £t.t».J-l>» '^L^ 
 
CHANCERY ACT. 37 
 
 and shall, in all respects be subject to the control and 
 direction of the Court and the respective Judges thereof, 
 as in the case of any other general orders which the Court 
 is empowered to make under the general or other juris- 
 diction thereof. 20 V. c. 56, s. 21. 12 V c. 64, s. 9. 
 
 LXXV. The Court may, from time to time, make such 
 general orders as to the Court may seem expedient, for 
 regulating the Offices of the Masters and Registrars, and 
 for regulating and securing the due performance of the 
 duties of all the Officers of the Court, and for regulating 
 and adapting to the circumstances of this Province, the 
 practice and proceedings of the Court, and more especi- 
 ally the nature and form of the process and pleadings, the 
 taking, publishing, using and hearing of testimony, the 
 examination of the parties to a suit upon their oaths, viva 
 voce or otherwise, the allowance and amount of costs and 
 every other matter deemed expedient for better attaining 
 the ends of Justice, and advancing the remedies of 
 Suitors ; and the Court may, from time to time, suspend, 
 -repeal, vary or revive any such orders, but no such order 
 shall have the effect of altering the principles or rules of 
 decision of the Court. 12 V. c. 64, s. 11. See c. 72, s. 
 7,_7 W. 4, c. 2, s. 4,-20 V. c. 56, s. 21. 
 
 LXXVI. All gaols in Upper Canada shall be prisons 
 for the Court. 7 W. 4, c. 2, s. 14,-9 V. c. 10, s. 14. 
 
 CON. STAT. U. C. CAP. XVI.— AN ACT RESPECT- 
 ING THE SURROGATE COURTS. 
 
 SS. XXVI.— XXXI., XLII.— XLV. 
 
 XXVI. Any person considering himself aggrieved by 
 any order, sentence, judgment or decree of any Surrogate 
 Court, or being dissatisfied with the determination of the 
 
38 8DRRUGATE ACT. 
 
 Judge thereof in point of law in any matter or cause 
 under this Act, may, within fifteen days next after such 
 order, sentence, judgment, decree or determination, ap- 
 peal therefrom to the Court of Chancery, in such manner 
 and subject to such regulations as may be provided for 
 by the rules and orders made under the Surrogate Courts 
 Act, 1858, or under this Act, and the said Court of Chan- 
 cery shall hear and determine such appeals ; but no such 
 appeal shall be had or lie unless the value of the goods, 
 chattels, rights or credits to be affected by such order, 
 sentence, judgment, decree or determination, exceeds two 
 hundred dollars. 22 V. c. 93, s. 20. 
 
 XXVII. In every case in which Ihere is contention as 
 to the grant of Probate or Administration, and the parties 
 in such case thereto agree, such contention shall be re- 
 ferred to and determined by either of Her Majesty's Su- 
 perior Courts of Law or by the Court of Chancery, on a. 
 case to be prepared, and the Surrogate Court having 
 jurisdiction in such matter shall not grant Probate or 
 Administration until such contention be terminated and 
 disposed of by judgment, decree or otherwise. 22 V. c. 
 93, s. 21. 
 
 XXVIII. Any cause or proceeding in the said Surrogate ■ 
 Courts in which any contention arises as 1o the grant of 
 Probate or Administration, or in which any disputed, 
 question may be raised (as to law or facts), relating to 
 matters and causes testamentary, shall be removable by 
 any party to such cause or proceeding into the Court of 
 Chancery by order of a Judge of the said Court to be ob- 
 tained on a summary application supported by affidavit, 
 of which reasonable notice shall be given to the other 
 parties concerned. 22 V. c. 93, s. 22. 
 
 Where the controversy was as to the validity of the will, and the sworn 
 allegation was, that " the questions to be tried and determined are of such 
 importance and difficulty that the deponent believes the same can be more 
 
SUBROGATE ACT. 39 
 
 effectually tried and disposed of in this Court than in the Surrogate Courts"' 
 the Osurt in the absence of any counter aflSdavit, ordered the removal of 
 the case, Re Eccles, 1 Cham. R. 376 ; to justify the remoTal of a cause 
 there must be sonje disputed question of Iftw or fact, a contest who should 
 be administrator and the delay occasioned thereby, is not a suificient rea- 
 son, Re Beclcmth, 5 U. 0. L. J. 256. 
 
 As to costs where order for removal made, Re Lee ^ Waterhouse, 5 TJ. 
 C. L. J. 266. 
 
 XXIX. The Judge making such order may impose 
 such terms as to payment or security for costs or other- 
 wise as to him may seem fit; but no case'or proceeding 
 shall be so removed unless it be of such a nature and of 
 such importance as to render it proper that the same should 
 be withdrawn from the jurisdiction of the Surrogate 
 Court and disposed of by the Court of Chancery, nor un- 
 less the personal estate of the deceased exceeds two thou- 
 sand dollars in value. 22 V. c. 93, s. 22. 
 
 XXX. Upon any cause or proceeding being so removed 
 as aforesaid, the Court'of Chancery shall have full power 
 to determine the same, and may cause any question of 
 fact arising therein to be tried by a jury and otherwise 
 deal with the same as with any cause or claim originally 
 entered in the said Court of Chancery ; and the final order 
 or decree made by the said Court of Chancery in any 
 cause or proceeding removed as aforesaid, sha:ll, for the 
 guidance of the said Surrogate Court, be transmitted by 
 the Surrogate Clerk to the Registrar of the Surrogate Court 
 from which such cause or proceeding was removed. 22 
 V. c. 93, s. 22. 
 
 XXXI. There shall be a Clerk appointed to be called the 
 Surrogate Clerk, who shall perform the duties required 
 of the Surrogate Clerk by this Act, as well as the duties 
 that by the rules and orders made as hereinbefore men- 
 tioned may be required of such Surrogate Clerk, and also 
 such other duties as may be required of him by the Court 
 of Chancery, and such Surrogate Clerk shall be deemed 
 
40 SURROQATB ACT. 
 
 an officer of the said Court of Chancery, and be paid a 
 fixed salary not exceeding one thousand six hundred 
 dollars yearly, and the Governor shall from time to 
 time appoint and at his pleasure remove such Clerk. 23 
 V. c. 93, s. 23. 
 
 XLII. In case it appears by the certificate of the Sur- 
 rogate Clerk that application for Probate or Administra- 
 tion has been made to two or more Surrogate Courts, the 
 Judges of such Courts respectively shall stay proceedings 
 therein, leaving the parties to apply to one of the Judges 
 of the said Court of Chancery to give such direction in 
 the matter as to him may seem necessary. 22 V. c. 93, a. 
 28. 
 
 XLIII. On application made to any one of such Judges, 
 he shall enquire into the matter in a summary way, and 
 adjudge and determine what Surrogate Court has juris- 
 diction, and shall proceed in the matter. 22 V. c. 93, s. 
 28. 
 
 XLIV. The Judge of the Court of Chancery may order 
 costs to be paid by any of the applicants, and the order 
 shall be enforced by the Court of Chancery. 22 V. c. 
 93, s. 28. 
 
 XLV. The determination of such Judge shall be final 
 and conclusive, and as soon as may be after such deter- 
 mination made, the Surrogate Clerk shall transmit a 
 certified copy thereof to the Registrars of the several 
 Surrogate Courts wherein such applications as aforesaid" 
 have been made. 22 V. c. 93, s. 28. 
 
 CON. STAT. U. C, CAP. XXIV.— AN ACT RE- 
 SPECTING ARREST AND IMPRISONMENT 
 FOR DEBT. 
 
 ss. VIII— XI, xrii— XVI, XIX— XXIII, xli. 
 
 VIII. The Writ of Ne exeat Provincia shall be called 
 
ARREST AND IMPRISONMENT ACT. 41 
 
 a Writ of Arrest, and no order shall be granted for a 
 Writ of Arrest unless the party applying for the writ has 
 a cause of suit to at least such an amount, and shews by 
 affidavit such facts and circumstances, as this Act re- 
 quires in the case ,of a special order for holding a party 
 to bail under the fifth section of this Act. 22 V. c. 
 33, s. 1. 
 
 The fifth section of thisAct, which relates to applications to hold to 
 bail at Common Law, requires an afBdavit shewing that the party apply- 
 ing has a cause of action to the amount of $100 or upwards, and shew- 
 ing such facts and circumstances as satisfy the Judge that there is good 
 and probable cause for believing that the defendant is about to quit 
 Canada with intent to defraud his creditors generally or the plaintiff in 
 particular. 
 
 As to setting aside a writ of arrest, see jliiderion v. Stamp, 11 Jur. N. 
 S. 169; Macpherson u. Macpherson, 2 Cham. K. 222. 
 
 IX. In suits for alimony, instituted after this Act takes 
 effect, the Court or a Judge thereof may, in a proper case, 
 order a Writ of Arrest to issue at any time alter the bill 
 has been filled, and shall, in the order, fix the amount of 
 bail to be given by the defendant, in order to procure his 
 discharge. 20 V. c. 56, s. 3. 
 
 X. In case an order is made for a Writ of Arrest, in 
 a suit for alimony, the amount of the bail required shall 
 not exceed what may be considered sufficient to cover 
 tSte amount of future alimony for two years, besides 
 arrears and costs, but may be for less at the discretion of 
 the Court. 22 V. c. 33, s. 2. 
 
 XI. The bail or security required to be taken under a 
 " Writ of Arrest " shall not be that the person arrested 
 will not go or attempt to go out of Upper Canada, but 
 shall merely be to the effect that the person arrested will 
 perform and abide by the orders and decrees made or to 
 be made in the suit, or will personally appear for the 
 purposes of the suit at such times and places as the 
 Court may from time to time order, and will, in case he 
 
42 ARREST AND IMPEISO.VMENT ACT. 
 
 becomes liable by law to be committed to close cus- 
 tody, render himself (if so ordered), into the custody of 
 any Sheriff the Court may from time to time direct. 22 
 V. c. 33, s. 3. 
 
 The bail of a defendant who has been arrested under a writ otne exeat, 
 cannot be discharged from their bonds upon the defendant rendering 
 himself to the custody of the Sheriff, McDonald v. McDonald, 1 Cham, 
 R. 22. 
 
 XIII. Process of contempt for non-payment of any sum 
 of money, or for non-payment of any costs, charges or 
 expenses, payable by any decree or order of the Court 
 of Chancery or of a Judge thereof, or by any rule or 
 order of the Court of Queen's Bench or Common Pleas 
 or of a Judge thereof, or by any decree, order or rule of 
 a County Court or of a Judge thereof, is abolished; and 
 no person shall be detained, arrested or held to bail for 
 non-payment of money, unless a special order for the 
 purpose be made on an affidavit*br affidavits establishing 
 the same facts and circumstances as are necessary for 
 an order for a Writ of Capias ad Satisfaciendum, under 
 this Act ; and in such case the arrest when allowed 
 shall be made by means of a Writ of Attachment corres- 
 ponding as nearly as may be to a Writ of Capias ad 
 Satisfaciendum. 22 V. c. 33, s. 4 
 
 The court will not detain a person in gaol merely for the non-paym^t 
 of money ; but in order to punish any one who has been guilty of a con- 
 tempt of Court, it may iipprison him for a stated period, allowing him 
 to be discharged if he pay the costs of his contempt before the expiration 
 of such period, Harris v. Meyers, 1 Cham. R. 229. 
 
 An attachment to commit a party for contempt will not be granted 
 merely for non-payment of the costs of the contempt, Dickson v. Cook, 
 1 Cham. R. 210; nor will the Court order a commitment for disobeying 
 a decree, where the disobedience is in effect the non-payment of money, 
 Male V. Boucher, 1 Cham. R. 359. 
 
 XIV. But in case a party be arrested under a Writ of 
 Arrest, it shall not be necessary before suing out a writ 
 under the preceding section of this Act to obtain a 
 

ARREST AND IMPRISONMENT ACT. 43 
 
 Judge's order therefor, or to file any further affidavit than 
 the affidavits on which the order for the Writ of Arrest 
 was obtained. 22 V. c. 33, s. 5. 
 
 XV. Every decree or order of the Court of Chancery, 
 and every rule or order of the Court of Queen's Bench 
 or Common Pleas, and every decree, order or rule of a 
 County Court, directing payment of money or of c< sts, 
 charges or expenses, shall, so far as it relates to such 
 money, costs, charges or expenses, be deemed a judg- 
 ment, and the person to receive payment a creditor, and 
 the person to make payment a debtor, within the mean- 
 ing of this Act ; and the said persons shall respectively 
 have the same remedies, and the Courts and Judges and 
 the officers of Justice shall in such cases have the same 
 powers and duties, as in corresponding cases under this 
 Act. 22 V. c. 33, s. 14. 
 
 XVI. In case a person has been heretofore, or may after 
 this Act takes effect, be arrested and committod to gaol 
 in any other County than that in which he- vesided or 
 carried on business at the time, such person shall be 
 entitled to be transferred to the gaol of his own County 
 on prepaying the expense of his removal ; andtlie Sheriff 
 in whose County he was arrested may, if he be satisfied 
 of the facts, transfer him accordingly ; but if the Sheriff 
 declines to act without an order of the Court or a Judge, 
 such an order shall be made on the application of the 
 prisoner and notice to the opposite party. 22 V. c. 
 33, s. 9. 
 
 XIX. For the purpose of enforcing payment of any 
 money or of any costs, charges or expenses payable by 
 any decree or order of the Court of Chancery, or any 
 rule or order of the Court of Queen's Bench or Common 
 Pleas, or any decree, order or rule of a County Court, the 
 person to receive payment shall be entled to Writs of 
 Fieri Facias and Venditioni Exponas respectively,^ 
 
44 ARREST AND IMPRISONMENT ACT. 
 
 against the property of the person to pay, and shall also 
 be entitled to attach and enforce payment of the debts 
 of or accruing to the person to pay, in the same manner 
 respectively and subject to the same rules, as nearly as 
 may be, as in the case of a judgment at law in a civil 
 action ; and such writs shall have the like effect as 
 nearly as may be, and the Courts and Judges shall have 
 the same powers and duties in respect to the same and 
 in respect to the proceedings under the same, and the 
 parties and Sheriff respectively shall have the same 
 rights and remedies in respect thereof, and the writs 
 shall be executed in the same manner and subject to the 
 same conditions, as nearly as may be, as in the case of 
 like writs in other cases ; but subject to such general 
 orders and rules varying or otherwise affecting the 
 practice in regard to the said matlers, as the Courts 
 respectively may from time to time make under their 
 authority in that behalf. 22 V. c. 33, s. 12. 
 
 Where a,fi. fa. for costs was issued as soon as the taxatioQ was com- 
 pleted, and placed in the Sheriff's hands, without allowing the tfoUcitor 
 "whose client had to pay the costs a reasonable time to communicate the 
 •result of the taxation, the writ was set aside with costs, Cullen v. Cullen, 
 2 Cham. R. 94 ; Jones v. Bank of Upper Canada, Y. C. Mowat, 8th Octo- 
 ber, 1867 ; and see Perkins v The National Assurance and Investment Asso- 
 ciatim, 2 H. & N. 71 ; Cruickshank v. Moss, 8 L. T. N. S 439 | Henry v. 
 The Commercial Bank of Canada, 17 U. C. Q. B. 104. 
 
 Where the Sheriff made a mistake in his return to a JJ. fa., an amend- 
 ment was allowed on payment of costs, McCann v. Eastwood, 2 Cham. 
 E. 182 ; The King v. the Sheriff of Monmouth, 1 Marsh. 344. 
 
 The Court will make an order for the examination of a defendant to 
 jtscertain what debts are due to him, with a view of garnishing such 
 debts under this section, Bostwick v. Shortis, 1 Cham. E. 69. 
 
 Where an application is made to compel a garnishee to pay over to the 
 creditor, debts due by him to the debtor, which have been garnished, 
 ■notice must be served on the garnishee. Re English, 1 Cham. E. 197. 
 
 A creditor applying for a garnishing order is entitled to the costs of 
 the application. Evans v. Evans, (on appeal), 1 Cham. E. 303. 
 
 A debt due to an administrator in his representative character, cannot 
 
ARREST AND IMPRISONMENT ACT. 45- 
 
 be attached to answer a debt dae from him in his private capacity, Bow- 
 man T. Bowman, 1 Cham. R. 1'72. 
 
 An award for an amoant together with costs having been made in 
 favour of a party, the costs were taxed by consent, and the amount 
 promised to be paid to the solicitor of the party ordered to receive such 
 costs. A garnishing order was subsequently obtained by a third party, 
 under which the amount awarded and the costs were paid over to such 
 third party, with notice, however, of the solicitor's lien for the costs- 
 Under these circumstances, a motion made to stay proceedings to enforce 
 payment of the costs under the award at the instance of the solicitor, to 
 whom they were payable, was refused with costs, McLean v. Beatty, 1 
 Cham. K. 138. 
 
 XX. In case a decree or order in Chancery, or of a 
 County Court in the exercise of the equitable jurisdiction 
 of such County Court, directs the payment of money 
 into Court or to the credit of any cause, or otherwise than 
 to any person, the person having the carriage of the 
 decree or order, so far as relates to such payment, shall 
 be deemed the plaintiff within the- meaning of this Act. 
 22 V. c. 33, s 15. 
 
 XXI. The Court of Chancery may also issue Writs of 
 Sequestration as hitherto or in such cases as by general 
 or other orders the Court may think expedient ; and 
 nothing in this Act shall be construed to take away the 
 jurisdiction of the Court under or by means of such writs ; 
 and no writ shall issue from Chancery against the lands 
 of the person to pay, but if the decree or order be regis- 
 tered, the Court may enforce the charge thereby created 
 upon real estate, according to the practice of the Court in 
 the case of a charge on real estate created by other means. 
 22 V. c. 33, s. 13. 
 
 The latter part of this section, commencing with the words, " and no 
 writ shall issue" has been repealed by 24 V. c. 41, s. 4. 
 
 A writ of sequestration cannot be issued upon precipe ; before the writ 
 can issue, the order for the payment of the money, must be served and an 
 affidavit of the service and non-payment of the money filed, Fishen v. 
 Wride, 2 Cham.R. 212. 
 
 Decrees or orders for the payment of alimony may be registered, 28 K, 
 
 c. 17,8. 4. 
 
46 ARREST AND IMPRISONMENT ACT. 
 
 XXII. For the purpose of carrying out the provisions 
 of this Act, so far as relates to the Courts of Queen's 
 Bench and Common Pleas, and to the County Courts as 
 Courts of Law, the several provisions of the Common 
 Law Procedure Act shall, so far as applicable and not 
 inconsistent with this Act, apply to this Act, and sec- 
 tions 333 to 340, and section 344 of the said Common Law 
 Procedure Act, shall be deemed incorporated herewith, 
 as if the provisions therein contained had been repeated 
 in this Act and expressly made to apply hereto, and it 
 shall not be necessary to lay before Parliament any rules, 
 orderiS or regulations made for the purpose of this Act. 
 22 V. c. 33, s. 18. 
 
 XXIII. The Court of Chancery shall, with reference to 
 the proceedings in the Court of Chancery under this Act, 
 and to proceedings under this Act in the County Courts 
 in the exercise of their equitable jurisdiction, have all 
 the powers which the next preceding section of thip Act 
 gives to the Common Law Courts, in respect to the cases 
 to which the sections of the Common Law Procedure 
 Act therein specially mentioned refer. 22 V. c. 33, s. 
 19. 
 
 The sections of the Common Law Procedure Act referred to, are those 
 which empower the Judges of the Superior Courts of Law, to make rules 
 for regulating the practice. 
 
 XLI. In case any party has obtained a judgment in 
 any Court in Upper Canada, such party, or any person 
 entitled to enforce ^ch a judgment, may apply to such 
 Court or to any Judge having authority to dispose of mat- 
 ters arising in such Court, for a rule or order that the 
 judgment debtor shall be orally examined upon oath 
 before the Clerk of the Crown, or before the Judge or 
 Clerk of the County Court within the jurisdiction of 
 which such debtor may reside, or before any other person 
 to be named in such rule or order, touching his estate 
 
ARREST AND IMPRISONMENT ACT. 47 
 
 and effects, and as to the property and means he had 
 when the debt or liability which was the subject of the 
 action in which judgment has been obtained against him 
 was incurred, and as to the property and means he still 
 hath of discharging the said judgment, and as to the 
 disposal he may have made oi any property since con- 
 tracting such debt or incurring such liability; and incase 
 such debtor does not attend as required by the said rule 
 or order, and does not allege a sufficient excuse for not 
 attending, or if attending, he refuses to disclose his pro- 
 perty or his transactions respecting the same, or does not 
 make satisfactory answers respecting the same, or if it 
 appears from such examination that such debtor lias con- 
 cealed or made away with his property in order to defeat 
 or defraud his creditors or any of them, such Court or 
 Judge may order such debtor to be committed to the 
 Common Gaol of the County ia which he resides for any 
 time not exceeding twelve months, or such Court or 
 Judge may, by rule or order, direct that a writ of capias 
 ad saiisfaciendum may be issued against such debtor, and 
 a writ of capias ad satisfaciendum may thereupon be 
 issued upon such judgment, or ia case such debtor enjoys 
 the benefit of the gaol limits, such Court or Judge may 
 make a rule or order for such debtor's being committed 
 to close custody under the thirty-fifth section of this Act. 
 22 V. c. 96, s. 13. 
 
 The 21 <fc 28 T. c. 25, enacts, that the words, "in cage any party has 
 obtained a judgment in any Court in Upper Canada," as used in sectioii 
 41 of chapter 24 of the Consolidated Statutes for Upper Canada, shall 
 from the comidg into force of this Act, for all the purposes of the said 
 cited Act, be taken to mean, as well a party defendant as a party plaiu- 
 tifF, and to extend to all judgments, whatever the cause of action for 
 which the sum may be recovered. 
 
 Before the passing of the 27 & 28 V., c. 25, it was held that a plaintiff^ 
 against whom the defendant had recovered a judgment for costs only, 
 was not liable to be examined or committed, Jie Hawkins, 9 U. C. L.J. 
 295. 
 
48 SOLICITORS ACT, 
 
 CON. STAT. U. C, CAP. XXXV. AN ACT RE- 
 SPECTING ATTORNEYS AT LAW. 
 
 ss. xxvii-xliv. 
 
 XX VII. No Suit at Law or Equity shall be brought 
 for the recovery of fees, charges or disbursements, for 
 business done by any Attorney or Solicitor as such, until 
 one month after a Bill thereof, subscribed with the pro- 
 per hand of such Attorney or Solicitor, his Executor, 
 Administrator or Assignee, (or, in the case of a partner- 
 ship, by one of the partners, either with his own name, 
 or with the name or style of such partnership,) has been 
 delivered to the party to be charged therewith, or sent by 
 the Post to or left for him at his counting-house, office of 
 business, dwelling-house, or last known place of abode, 
 or been enclosed in or accompanied by a letter subscribed 
 in like manner, referring to such Bill. 16 V. c. 175, 
 s. 20. 
 
 The Act should be construed liberally for the client, Williams v. Grif- 
 fiths, 10 M. <fe W. 125; Enghheart v. Moore, 15 M. & W. 548. 
 
 As to whether Courts of Equity have, independently of Statute, juris- 
 diction to order taxation of bills of costs, see Ex parte J-rrowsmith, la 
 Ves. 124; Ex parte Lord Cardross, 5 M. 4 W. 645; Cowdell v.Neale, 1 
 C. B. N. S. 332 ; Re Forsyth, 34 Bear. 140 ; 1^ W. R., 932. 
 
 An assignee In bankruptcy, is an assignee within the meaning of this 
 Act, Re Walton 4 K. A J. 78. 
 
 As to pleading non-delivery at law, see Flower v. Newton, 11 Jar. 815 ; 
 Lane v. Glenny, 7 Ad. & tl. 83 ; Hichins v. Tate, 1 0. B. 875. 
 
 An attorney may set off a bill before delivery, Lester v. Lazarus, 2 C. 
 M. & B. 665 ; or prove in bankruptcy, Ex parte Prideaux, 1 Gl. & Jam. 
 28 ; Ex parte Steele, 16 Ves. 161 ; or sue on a promissory note or other 
 collateral agreement, Jeffreys v. Evans, 14 M. <6 W. 210 ; Thomas v. Cross, 
 13 W. R. 166. See, in the latter case, comments on Waugh v. Waddell, 
 16 Beav. 521. 
 
 The summary jurisdiction does not exclude the right of a client to file 
 a bill against his solicitor for an account, Morgan v. Higgins, 5 Jur. N. S. 
 236 ; O'Brien v. Lewis, 9 Jur. N. S. 321 ; or to enforce an ag-reement for 
 delivery by petition, Re Bailey, 34 Beav. 892. 
 
 After taxation, an action by the solicitor is a contempt, Re Campbell,. 
 3 D. M. G. 585. 
 

aOLICITOKS ACT. 49 
 
 By "month," a calendar month is meant, Ry alls v. Reg. 12 Jur. 458; 
 tand the month is to be computed exclusively of the days on which the 
 *ill is delivered and the action brought ; Munt v. Heslop, 8 Ad. & El. 
 ■511 1 Re Morphy ^ Kerr, 2 Cham. K. 66. 
 
 As to what constitutes delivery, see Welsh v. Silwell, 11 Jur. 471 ; 
 Flower v. Newton, 11 Jm. 815; Eggington v. Cumhtrhge, 11 Jur. 932; 
 Blandy v. DeBurgh, 6 0. B. 623 ; GrUley v. Austen, 16 Q. B. 604 ; Phippt 
 V. Daubeny, 16 Q. B. 514 ; Spyer v. Bernard, 8 L. T. N. S. 396 ; in the case 
 of a public officer, Champ v. Stokes, 6 H. AN. 683; and in that of the 
 committee of a public company, Edwards v. Lawless, 5 Rail. Ca. 35 V ; 
 Mant V. Smith, 4 H. A N. 324. 
 
 Delivery to a duly authorized agent of the client is sufficient, Re Bush, 
 S Beav. 66 ; or to his servant, McOregor v. Keiley, 3 Exch. 794 ; but not 
 ■to his solicitor, nor to a friend or relation, Re Abbott, i L. T. N. S. 676 ; 
 Gridleyv. Austen, 16 Q. B. 504, 5U. 
 
 The bill may be sent by post, Roberts v. Lucas, 11 Exch. 41 ; Taylor v. 
 Hodgson, 3 Dowl. &Low. 115. 
 
 Where the action was brought against the executors of the client, de- 
 livery to the client in his lifetime was considered enough, Reynolds v. 
 Caswell, 4 Taunt. 193 ; Tate v. Hichins, 1 0. B. 875. 
 
 The bill must be left, not shown merely, Crowder v. Shee, 1 Camp. 437 ; 
 Phipps V. Daubeny, 16 Q. B. 514. 
 
 The bill, or some accompanying document must specify the persons to 
 he charged, Taylor v. Hodgson, 3 Dowl. & Low. 116 ; Roberts v. Lucas, 11 
 Exch. 41 ; Gridley v. Austen, 16 Q. B. 504 ; Champ o. Stokes, 6 H. <fc. N. 
 683 ; the Court in which the business was done, Lewis i>. Primrose, 6 Q. 
 B. 265 ; Dimes v. Wright, 8 C. B. 831 ; the name of the cause, Keene v. 
 Ward, 13 Q. B. 515 ; and the particular items charged for, Drew v. Clif- 
 ford, 2 Car. & P., 69 ; Re Smith, 4 Beav. 309; Re Pender, 10 Beav. 390. 
 
 It is sufficient, as a general rule, if the bill gives such information as 
 will enable the client to obtain advice as to taxation, Frowd v. Stillard, 
 4 Car. & P. 51 ; Sargent v. Gannon, 1 C. B. 742 ; Cook v. Gillard, I El. & 
 Bl. 26 ; Haigh v. Oussey, 1 El. & Bl. 678. 
 
 XXVIII. Upon the application of the party chargeable 
 by such Bill within such month, any of the Superior 
 Courts of Law or Equity, or any Judge thereof, or any 
 Judge of a County Court shall, without any money being 
 brought into Court, refer the Bill, and the demand thereon, 
 to be taxed by the proper officer of any of the Courts in 
 which any of the business charged for in such Bill was 
 done ; and the Court or Judge making such reference 
 
50 SOLICITORS ACT. 
 
 shall restrain the bringing any suit for such demand^ 
 pending the reference. 
 
 A party in contempt may apply for taxation, Newton v. Ricketts, 11 
 BeaT. 67. 
 
 A married woman who has separate estate, which she has by agree- 
 ment made liable, is a party chargeable within the Act, Waugh v Wad- 
 dell, 16 Bear. 521 ; Murray v. Barlee, 3 M. & K. 209 ; but see Re Pugh, 
 17 Beav. 336 ; so is the next friend of an infant, Re Fluker, 20 Bear. 143 ;; 
 or the executors of the party originally liable, Jefferson v. Warrington, 
 7 M. & W. 137 ; or jhis assignee in bankruptcy, Clarkson v. Barber, 7 
 Dowl. 87. 
 
 A married woman must apply by her next friend, Waugh v. Waddell^ 
 16 Bear. 508. 
 
 Where several parties are jointly chargeable, they should concur in the 
 application, Re Lewin, 16 Bear. 608 ; Me Perkins, 8 Beav. 241 ; Re 
 Mobbs, 8 Beav. 499 ; and an order obtained by one of them, on an allega- 
 tion that he alone employed the solicitor, will be discharged as irregular, 
 Re Beecher, Barker and Street, 2 Cham. E. 215 ; Hoby v. Pritchard, 2 M. 
 
 6 W. 124. 
 
 If one of the parties liable refuses to concur, the order may be obtained 
 by the other. Hazard v. Lane, 3 Mer. 285 i^ckhart v.''Sardy, 4 Beav. 224 ; 
 the one refusing to concur should be served with the petition, Ee Hair,. 
 10 Beav. 187 ; 11 Jur. 139; but the 'order cannot be made after action 
 has been brought against the two. Re Chilcote, 1 Beav. 421. 
 
 As to security for costs being requiredjfrom the party applying, see Re 
 Dolman, 11 Jur. 1095 ; Re Pasmore, IJBeav. 94 ; Re Foley, 11 Beav. 456 f 
 Murroa v Wilson, 12 Beav. 497. 
 
 The fact that an action is pending for thf amount of a bill, does not 
 give the Common Law Judg^e jurisdiction to tax the bill, Sayer v. Bush, 
 
 7 Man. & Gr. 1027 ; Cmodell v. Neale, 1 0. B. N. S. 332. 
 
 An order of course, though right on the merits, will be dismissed if 
 obtained in a case where a special application was necessary, Harris v. 
 Sturt, 4 M. & G. 261 ; Grove v. Samson, 1 Beav. 297 ; Gregg v. Tayler, 
 
 1 Beav. 123; as to the costs of a special application, where an ex parte 
 application would have been sufficient, see Re Cattlin, 8 Beav. 121 ; Re 
 Braeey, 8 Beav, 338 ; Re Bignold, 9 Beav. 269 ; Re jldamson, 18 Beav. 
 460 ; Re Atkinson, 26 Beav. 151 ; Re Lett, 31 Beav. 488. 
 
 A special application is necessaryQwhere the application is to tax part 
 only of the bill claimed, Re Byrch, SJBeav. 124 ; Re Dolby, 8 Beav. 469 ; 
 Re Wavell, 22 Beav. 634; Re Yetts, 33 Beav. 412 ; Stokes v. Trumper, 
 
 2 K. & J. 232 ; but see Re Hinton, 15 Beav. 192 ; Re Fluker, 20 Beav. 
 148 ; or where it is made by some onlyjj of several parties jointly liable. 
 Re Uderion, 33 Beav. 201 ; or where there is a special agreement as to 
 retainer, Re Thurgood, 19 Beav. 541 ; or a^special agreement as t6 the costs,. 
 
Su^'k '5 A^. .^1^^:^ ,^/. /^ ^;_ ^ ^^ s_ Xc M^j^ /sAc^. 
 
 (^<^wv^^lJr^^^'— <^^^^-^^'^''^^^ /^^r^w^^.2^ 
 
^ y y^- ^ T-C/ T^-^ttt^^U^ O^^^JYo. _ &I-^ 7 tX\ZZ, ^OX^-y-l^T-. '^Uy&^.,yei^ <^^^'">*M*^ 
 
SOLICITORS ACT. 51 
 
 Re Wvnterbotham, 15 Bear. 80; or to give the solicitor a lien, Re Moss, 
 11 Beav. 59; and see Re Ransom, 18 Beav. 220; Re Fisher, 18 Beav. 183. 
 
 A special agreement respecting part of the costs, unless it goes to the 
 whole bill, is not a bar to an order for taxation, though formerly held to 
 te so. Re Eyre, 10 Beav. 569; 2 Phil. 367 ; Re Forsyth, 34 Beav. 140 ; 
 Re JTiompson, 14 L. T. N. S. 6 ; but if the fact of the agreement is sup- 
 pressed, the order will be discharged, Re Carven, 8 Bear. 436 ; Re Holland 
 19 Beav. 314 ; Re Ingle, 21 Beav. 275. 
 
 An agreement to charge a fixed sum in lieu of costs hereafter to be 
 incurred is void, PhUby v. Hazle, 1 Jur. N._S. 125 ; Pince v Beattie, 11 W. 
 E, 979 ; Re Newman, 30 Beav. 196 ; but as to an agreement to pay a 
 solicitor a fixed salary, see Galloway v. Corporation of London, 4 L. E, 
 Eq. QO.Mtvif ^.S.fr. Sf- 8 U.C.C.P. Z80. 
 
 The Solicitor may waive an irregularity in obtaining the order, Re 
 Hair, 11 Beav. 96; Re Sevan, 12 W. E. 196 ; Be Bartrum, 12 W. R. 660, 
 Re Field, 16 Beav. 593 ; Re Wavell, 22 Beav. 634. 
 
 XXIX. In case no application be made within the 
 month, then the Court or Judge upon the application of 
 either party may order a reference with such directions 
 and conditions as he may deem proper ; and may upon 
 such terms as may be thought just restrain any suit for 
 such demand pending the reference. 
 
 XXX. No such reference shall be directed upon appli- 
 cation made by the party chargeable with such Bill after 
 a verdict has been obtained or a Writ of Inquiry executed, 
 or after twelve months from the time such Bill was de- 
 livered, sent or left as aforesaid, except under special 
 circumstances, to be proved to the satisfaction of the 
 Court or Judge to whom the application for the reference 
 is made. 
 
 To entitle a client to taxation after twelve months' he must shew either 
 " pressure accompanied by some overcharge," or " gross overcharge amount- 
 ing to fraud," Re Strother, 3 K. <t J. 618 ; Re McKay, 15 L. T. N. S. 101. 
 
 As to what circumstances constitute such pressure or fraudulent over- 
 charge, see notes to Section 42. 
 
 Where the client has not had proper opportunity to examine the bill, 
 taxation after twelve months has been allowed, Re Williams, 15 Beav. 
 417 ; but he must shew that there has been no undue lacbes or acquies- 
 cence on his part. Re Barnard, 2 D. M. & G. 369. 
 
52 SOLICITORS ACT. 
 
 The lapse of less than twelve months may be an objection to granting 
 the application, Re BayUy, 18 Bear. 415 ; Re Pugh, 32 Beav. 173 ; 11 W 
 R. '762 ; Re Browne, 1 D. M. & G. 322. 
 
 A dispute and correspondence as to alleged omissions in the bill held 
 gufficient apology for the lateness of the application, Re Bagihawe, 2 DeG. 
 k Sm. 205 ; and where the relation of solicitor and client continued until, 
 within a year before the application was made, and the last account had 
 been delivered within the year, it was held a material circumstance in 
 accounting for the delay, Re Nicholson, 3 D. P. & J. 93, 100 ; but the 
 solicitor's possession of the papers in the suit was not, Re Gedye, 14 
 Beav. 56. 
 
 For cases where lapse of time and laches have been a bar to taxation, 
 see Re Vines, 2 D. M. & G. 842 ; Blagrave v. Routh 8 D. M. & G. 620. 
 
 The Court on ordering taxation after the twelve months, will, if neces- 
 sary, restricjt the taxation within certain limits, Re Nicholson, 3 D, P. & 
 J. 93. 
 
 XXXI. In case either party to any such reference, 
 having due notice, refuses or neglects to attend the tax- 
 ation, the officer to whom the reference is made, may tax 
 the Bill ex parte ; and in case the reference is made upon 
 the application of either party, and the party chargeable 
 with the Bill attends the taxation, the costs of the refer- 
 ence shall be paid according to the event of the taxation, 
 except that if a sixth part be taxed off, the costs shall be 
 paid by the party by whom or on whose behalf, such Bill 
 was delivered ; and if less than a sixth part be taxed off, 
 then by the party chargeable with such Bill, if he applied 
 for or attended the taxation. 
 
 Where the solicitor obtains the order for taxation, and the client does 
 not attend on the taxation, the Court has no discretion as to allowing 
 the costs of the taxation, Ra Kerr, 2 Cham. R. 47. 
 
 Only those payments are allowed on taxation which are made by the 
 solicitor in his professional capacity, iJe Remnant, 11 Beav. 603; cash 
 payments made by the solicitor in proceedings where he was not pro- 
 fessionally concerned, are not allowed to be included, Heming v. Wilson, 
 4 Car. & P. 818 ; Re Lees, 5 Beav 410; Prothero v. Thomas, 6 Taunt. 196. 
 
 Where a solicitor has been retained for a particular business, his bill 
 of costs for carrying it through, constitutes one bill, Stokes v. Trumper, 
 2 K. & J. 232 ; Re Peach, 2 Dow. & L". 33. 
 
 After the bill has been referred for taxation no alteration can be made 
 in it, Re Wells, 8 Beav. 416 ; Re Catlin, 18 Beav. 519 ; Davis v. Earl of 
 
gOLICIXORS ACT- ^S 
 
 Dysart, 21 Bear. 121 ; 8 D. M. <& G-. 33 ; ezcept by consent, or on special 
 application for leave to amend, Re Andrews, 17 Bear. 510, 514. This 
 leave has been given to amend, by inserting omitted Items, and increasing 
 under charges, Re Crawford <fc Crottibie, 2 Cham. R. 13 ; but not to de- 
 crease over charges, Re Whalley, 20 Beav. 576 ; nor to withdraw items 
 improperly inserted, Re Carven, 8 Beav. 436 ; Re Jones, 8 Beav. 479 ; Re 
 Blakesly, 32 Beav. 3l9.7A.lli/. 9o 
 
 A solicitor having delivered his bill, is bound by it so far, that he can- 
 not substitute another bill for it, even before notice of an order to tax is 
 served on bim, without paying all the costs incurred by the client up to 
 the date of obtaining such order, Re Ch.ambers,3i Beav. 177. oP^actZct^'Xt/r. /S, 
 
 The rule as to one sixth is imperative in an ordinary reference to tax- 
 ation, jRe WooUett, 12 If. & W. 504 ; but where the reference is special, 
 the costs are in the discretion of the Judge, Toghill v. Grant, 6 Beav. 348 ; 
 Higgins V. Woolcot, 5 B. 4- 0. 760 ; and see May v. Siggenden, 24 Beav. 207 
 Re Hair, 11 Beav. 96. 
 
 Where more than a sixth is taken off, the assignees of an insolvent, or 
 bankrupt solicitor are personally liable for the costs of taxation, lie Peers, 
 21 Beav. 520; Re Peile, 25 Beav. 561 ; and under similar circumstances, 
 the insolvent was, notwithstanding his discharge, held personally liable, 
 Whalley v. Williamson, 6 Man. & Gr. 269. 
 
 Where a bill was ordered to be taxed, (questions as to liability being 
 reserved,) and less than a sixth was struck off, it was held that, whatever 
 might be the result of the questions reserved, the client must pay the 
 costs of taxation, Re Shaw, 20 L. J. Q. B. 280. 
 
 Where the Master disallows some items and adds others, the bill is to 
 be considered as increased by the items nllowed, and iben reduced by 
 those disallowed. Re Hartley, 2 Jur. N. S. 448 ; and see Re Clark, 13 
 Beav. 173 ; 1 D. M. & G.43.7A„^«/}. f^ 
 
 Items included, which are chargeable against another person, must be 
 reckoned in as against the solicitor, Re Colquhoun 1 Sm. & G. app. 1 ; 
 5 D. M. & G. 35. 
 
 Where a solicitor offered to make a reduction in his bill, the Court 
 held the Master should not charge him with the costs of taxation, unless 
 the bill has been reduced one sixth independently of the voluntary de- 
 duction, Re Freeman, Craigie If Proudfoot, 1 Cham. R. 102. 
 
 XXXII. Every order for such reference shall direct the 
 Officer to whom the reference is made, to tax the costs 
 of the relerence, and to certify what, upon the reference, 
 he finds to be due to or from either party in respect 
 ol such Bill and of the costs of the reference, if payable. 
 
 An order directing taxation of the costs of a suit warrants taxation up 
 
54 SOLICITORS ACT. 
 
 to the date of the Taxing Master's report, Quarrell v. Beckford, 1 Mad. 
 285. 
 
 XXXIII. Such Officer may certify specially any cir- 
 cumstances relating to such Bill or taxation, and the 
 Court or Judge may thereupon make such Order as may 
 be deemed right respecting the payment of the costs of 
 the taxation. 
 
 XXXIV. In case such reference be made when the 
 same is not authorized, except under special circum- 
 stances as hereinbefore provided, the Court or Judge in 
 making the same may give any special directions rela- 
 tive to the costs of the reference. 
 
 XXXV. Where no Bill has been delivered, sent or left 
 as aforesaid, and where such Bill if delivered, sent or left, 
 might have been referred as aforesaid, any such Court 
 or Judge may order the delivery of a Bill, and may also 
 order the delivery up of Deeds or papers in the posses- 
 sion, custody or power of the Attorney or Solicitor, his 
 Assignee or representatives, in the same manner as has 
 heretofore been done in cases where any such business 
 had been transacted in the Court in which such Order 
 was made. 
 
 Orders under this section may be enforced by attachment, Re Bowen, 
 11 W. E. 607; no action at law lies for disobedience to the order, Dent v. 
 Badiam, 9 Exch. 469. 
 
 Where the order was not obeyed, and the solicitor swore that he had 
 no papers from which he could make out his bill, the Court refused to 
 commithim for non-delivery, Re Kerr, 12 Bear. 390. 
 
 The Court will, before the completion of the taxation, order the de- 
 liyery of papers to the client, either upon payment into Court of the 
 amount claimed, or where it appears from the solicitor's own account that 
 a balance is due from him to the client, Re Beaven, 33 Beav. 439 ; as to 
 inserting a direction for delivery of papers in the common order for taxa- 
 tion, see Re Pender, 8 Beav. 299 f Re Teague, 11 Bear. 318. 
 
 As to delivery of papers, and the sslicitor's lien for his costs, where 
 the solicitor is changed, or discharges himself pendent lite, see notes to 
 Ord. 49. 
 
XJCj^V. Sc^^^iZi^c^ ^_ -PW..^^^^^ ^^X:^^/s/^y /^^ 
 
SOLICITORS ACT. 55 
 
 XXXVI. In proving a compliance with this Act, it 
 ^hall not be necessary in the first instance to prove the 
 ■contents of the Bill delivered, sent or Jleft, but it shall 
 be sufficient to prove that a Bill of fees, charges or dis- 
 bursements subscribed in the manner aforesaid, or en- 
 closed in or accompanied by such letter as aforesaid, 
 was delivered, sent or left in manner aforesaid ; but the 
 other party may shew that the Bill so delivered, sent or 
 left, was not such a Bill as constituted a bona fide com- 
 pliance with this Act. 
 
 XXXVII. Any Judge of the Superior Courts of Law 
 or Equity, or a County Judge, on proof tojhis satisfaction' 
 that there is probable cause for believing that the party 
 -chargeable is about to quit Upper Canada, may authorize 
 an Attorney or Solicitor to commence an action for the 
 recovery of his fees, charges or disbursements against the 
 party chargeable therewith, although one month has not 
 expired since the delivery of a Bill as aforesaid. 16 V. 
 c. 175, s. 20. 
 
 XXXVIII. When any person not being chargeable as 
 the principal party is liable to pay or has paid any Bill 
 either to the Attorney or Solicitor, his Assignee, or re- 
 presentative, or to the principal party entitled thereto, the 
 party so paying,^ his Assignee or representative, may 
 make the like application for a reference thereof to taxa- 
 tion and in like manner as the party chargeable there- 
 with might himself have made, and the same proceed- 
 ings shall be had thereupon, as if such application had 
 been made by the party so chargeable. 
 
 A mere volunteer, under no previous liability, undertaking to pay a 
 solicitor's bill, does not require a right to tax it, Re Becke 5 Beav. 406 ; 
 but where a suit was compromised, plaintiff agreeing to pay defendant's 
 costs, plaintiff was held entitled to an order for taxation of the bill, Re 
 Hartley, 30 Beav. 620. 6-PlCi.ci2iA-^*/i. 6S. 
 
 The bill of a mortgagee's solicitor for business done in regard to the 
 mortgaged estate, may be taxed by the mortgagor, Re Lees, 5 Beav. 410 ; 
 
do SOLICITOBS ACT. 
 
 Re Carew, 8 Beav. 160 ; Re Wells, 8 Bear. 416; or by a subsequent incuia- 
 brancer, Re Taylor, 18 Beav. 165 ; Be Jessop, 32 Bear. 406. 
 
 The taxation at the instance of the third party mast be as between the 
 solicitor and his client, not as between the solicitor and the third party. 
 Re Wells, 8 Beav. 416 ; Re Jones, 8 Beav. 479 ; Re Ft/son, 9 Beav. llY j 
 Re Barron, 17 Beav. 547 ; and if the client is not entitled to tax the bill, 
 as if it has been paid without pressure, &c., the third party cannot tax 
 it ; but if an exesssive amount has been paid he must file a bill against 
 the client who paid the bill to reduce his liability, Re Massey, 34 Beav.. 
 463 i and see Re Forsyth, 34 Beav. 140 ; on appeal, 13 W. R. 932. 
 
 XXXIX. In case such application is made when,, 
 under the provisions hereinbefore contained a reference 
 is not authorized to be made except under special cir- 
 cumstances, the Court or Judge to whom the application 
 is made, may take into consideration any additional 
 special circumstances applicable to the person making- 
 it,-although such circumstances might not be applicable 
 to the party chargeable with the Bill, if he was the pariy 
 making the application. 16 V. c. 175, s. 21. 
 
 As to the meaning and effect of this section, see Re Vardy, 20 L. J^ 
 Ch. 325. 
 
 ■ XL. For the purpose of any such reference upon the- 
 application of the person not being the party chargeable, 
 or of a party interested as aforesaid, such Court or Judge- 
 may order the Attorney or Solicitor, his Assignee or 
 representative, to deliver to the party making the appli- 
 cation a copy of Ihe Bill, upon payment of the costs of 
 the copy. 16 V. c. 175, s. 22. 
 
 XLI. No Bill previously taxed shall be again referred,, 
 unless under the special circumstances, the Court or 
 Judge to whom the application is made thinks fit to direct 
 a relaxation thereof. 16 V. c. 175, s. 22. 
 
 XLII. The payment of any such Bill as aforesaid, 
 shall in no case preclude the Court or Judge to whom 
 application may be made from referring such Bill for tax- 
 
SOLICITORS ACT. 57 
 
 ation, if the application be made within twelve months, 
 and if the special circumstances of the case in the 
 opinion of such Court or Judge appear to require the 
 same, ilpon the terms and subject to the directions which 
 to the Court or Judge seem right. 16 V. c. 175, s. 23. 
 
 The giving of security is for the purpose of this section equivalent to 
 payment, Ex parte Turner, 6 D. M. & tr. 540 • Sayer v Waggataffe, 5 
 Bear. 415; Be Currie, 9 Beav. 602; Re Harper, 10 Bear. 2S4; Re Fair- 
 lankt, 1 Cham. B. 222 ; but retainer by the Solicitor is not, Re Steele, 20 
 L. J. Ch. 562 ; Re BIgnold, 9 Beav. 269 ; but see Ex parte Shackell, 2 JP. 
 M, & G' 842 ; Ex parte Heming, 28 L. T. 144. 
 
 "Special circumstances" have generally been held to signify either 
 " pressure, accompanied by some overcharge," or " overcharges or errors 
 BO gross as to amount to fraud." •L.Ji. 2. ("■</. /f /» 
 
 For cases of pressure, such as the refusal to deliver up deeds, see Re 
 Ahock, 2 Coll. 92 ; Re Elmslie, 12 Beav. 538 ; Re Lett, 31 Beav. 488 ; Re 
 Pugh, 32 Beav. 173 ; 1 D. J. & S. e'TS; or threats to enforce securities. 
 Re Kinniir, 1 W. R. 175; Re Ranee, 22 Beav. 177 ; Re Foster, 2 D. P. 4 
 J. 105 ; or generally taking advantage of the exigences of the client's 
 position, Re Stephen, 2 Ph. 562 ; Nokes v. Wharton, 5 Beav. 448. These 
 cases do not apply if the client has had an opportunity of examining 
 and taxing the bill. Re Neate, 10 Beav. 181 ; Re Welchman, 11 Beav. 
 319; Re Currie, 9 Beav. 602; Re Boyle, 6 D. M. & G. 540; Re Browne, 
 1 D. M. & 6. 322. In Re Barrow, 17 Beav. 547, the M. R. said the 
 doctrine of pressure in cases of taxation after payment is not to be 
 extended. 
 
 The Court will only direct taxation if there is at least a reasonable 
 belief that if the bill be taxed, some of the charges will be disallowed, 
 Re Sladden, 10 Beav. 488 ; therefore some items of overcharge should be 
 pointed out, Re Brady, 15 W. R. 632 ; though not necessarily such as 
 amount to fraud. Re Newman, 15 W. R. 630 ; Be Wells, 8 Beav. 416 ; Be 
 Hubbard, 15 Beav. 251 ; Re Abbott, 18 Beav. 393 ; Re Towle, 30 Beav. 
 170. 
 
 The absence of any affidavit or other evidence as to items of over- 
 charge, will be a reason for dismissing the petition. Ex parte Barton, 16 
 Beav. 585; 4 D. M. & G. 108 ; Re Thompson, 2 Cham. R. 100. 6 P^ a.t^''^^ ^c/'- ///[ 
 
 That the bill was paid under protest is material only if connected with 
 circumstances of overcharge or pressure, and where a bill is paid under 
 protest, the items objected to should, if possible, be pointed out, Re 
 Dearden, 9 Exch. 210, Re Bat/ley, 18 Beav. 415 ; Re Davie, 8 W. E. 15. 
 
 Where there has been no pressure the Court will, after payment, order 
 taxation only on proof of " overcharges amounting to evidence of fraud," 
 Re Stioiher, 3 E. & J. 618. Some of the particnlar items relied on muB^ 
 
58 SOLICITORS ACT. 
 
 be specifically poiated out, Dunt v. Dunt, 9 Bear. 146 ; Re Towle, 30 
 Beav. 170; Re Browne, 1 D. M. & G. 322, 333; trifliag items will be 
 insufficient, Re Drake, 8 Bear. 123 ; Re Thompson, 8 Bear. 23t ; Re Bay- 
 ley, 18 Bear. 416 ; if the practice in the taxing-master's office as to 
 allowing the Items objected to is uncertain, the solicitor has the benefit 
 of the doubt. Re Walsh, 12 Beav. 490 ; and generally the onus rests on 
 the client to shew that the charges under the special circumstances were 
 fraudulent, Re Towle, 30 Bear. 170. 
 
 Where the overcharges evidence actual fraud, very slight circum- 
 stances will induce the Court to re-open the taxation, Nokes v Warton, 5 
 Beav. 448 ; Re Harding, 10 Beav. 250. 
 
 gee also as to great overcharges, Sayer v Wagstaff, 6 Beav. 415; Re 
 Bennett, 8 Bear. 467; Re Sladden, 10 Beav. 488 ; Ex parte Andrews, 13 
 L. J. Ch. 222 ; Ex parte Hemming, 28 L. T. 144. 
 
 XLIII. In all cases in which a Bill is referred to be 
 taxed, the Officer to whom the reference is made may 
 request the proper Officer of any other Court, to assist 
 him in taxing any part of such Bill, and such Officer, so 
 requested, shall thereupon tax the same, and shall have 
 the same powers, and may receive the same fees in 
 respect thereof, as upon a reference to him by the Court 
 of which he is such Officer, and he shall return the Bill, 
 with his opinion thereon, to the Officer who so requests 
 him to tax the same. 16 V. c. 175, s. 24, 
 
 XLIV. All applications made to refer any Bill to be 
 taxed, or for the delivery of a Bill, or for the delivering 
 up of deeds, documents and papers, shall be made " in 
 the matter of such Attorney or Solicitor ; " and upon the 
 taxation of any such Bill, the certificate of the Officer by 
 whom the Bill is taxed shall (unless set aside or altered 
 by order of a Judge, Decree or Rule of Court,) be final 
 and conclusive as )o the amount thereof, and payment of 
 the amount certified to be due and directed to be paid 
 may be enforced according to the course of the Court in 
 whcih the reference has been made. 16 V. c. 175, 
 s. 25. 
 
RELIGIOUS INSTIIUTIONS ACT. 59 
 
 CON. STAT. U. C. CAP. LXIX.— AN ACT RE- 
 SPECTING THE PROPERTY OF RELIGIOUS 
 INSTITUTIONS IN UPPER CANADA. 
 
 ss. VIII.— xir. 
 
 VIII. When land held by trustees for the use of a con- 
 gregation or religious body, becomes unnecessary to be 
 retained for such use, and it is deemed advantageous to 
 sell the land, the trustees for the time being may give public 
 notice of an intended sale, specifying the premises to be 
 sold and the time and terms of sale ; and after publica- 
 tion of the notice for four successive weeks, in a weekly 
 paper published in or near the place where the lands are 
 situated, they may sell the land at public auction ac- 
 cording to the notice, but the trustees shall not be obliged 
 to complete or carry a sale into effect if in their judgment 
 an adequate price is not offered for the land. 
 
 IX. The trustees may thereafter sell the land either by 
 public or private sale ; but a less sum shall not be ac- 
 cepted at private sale than was offered at public sale. 
 
 X. Before a deed is executed in pursuance of a public 
 or private sale, the congregation or religious body for 
 whose use the lands are held, shall be duly notified there- 
 of, and the sanction of the Court of Chancery obtained 
 for the execution of the deed. 18 V. c. 119, s. 5, — IS 
 V. c. 91, s. 2. 
 
 On an application to the Court under this section, the deed under which 
 thetrustees hold the property must be produced, in order that the Court 
 may be satisfied that the property is vested in them as trustees within the 
 meaning of this Act. 
 
 It is essential that all the requirements of the statute should he com- 
 plied with, Re Second Congregational Church Toronto, 1 Cham. R. 349. 
 Where land was vested in Trustees for the use of, and as a place of 
 residence for, a Minister of a religious body, and for such other purposes 
 as the ministers of such religious body, at their general conference, migh' 
 'rom time to time appoint, it is not " land held by the trustees for the con" 
 
60 RELIGIOUS INSTITUTIONS ACT. 
 
 gregation or religious body" withia the meaning of this Act, and the 
 Conrt has no power to sanction the exception of any deed conveying the 
 land by the trustees, Re Methodist Episcopal Church, Ckurehville, 1 Cham. 
 B. 305. 
 
 XI. Trustees selling or leasing land underthe authority 
 of this act shall, on the first Monday in July in every 
 year, have ready and open for the inspection of the con- 
 gregation or religious body which they represent, or of 
 any member thereof, a detailed statement shewing all 
 rents which accrued during the preceding year, and all 
 sums of money whatever in their hands for the use and 
 benefit of the congregation or religious body, which were 
 in any manner derived from the lands under their control 
 or subject to their management, and also shewing the 
 application of any portion of the money, which has been 
 expended on behalf of the congregation or body 18 V. 
 c. 119, s. 6. 
 
 XII. The Court of Chancery may in a summary man- 
 ner, on complaint upon oath by three members of a con- 
 gregation or religious body, of any misfeasance or mis- 
 conduct on the part of trustees in the performance of 
 duties authorised by this Act, call upon the trustees to 
 give in an account ; and may enforce the rendering of 
 such account, the discharge of any duties, and the pay- 
 ment of any money, so that the congregation or religious 
 body may have the benefit thereof; and the Court may 
 compel the trustees, in case of any misconduct, to pay 
 the expense of the application, or may award costs to 
 the trustees in case the application be made on grounds 
 which the Court considers insufficient or frivolous or 
 vexatious. 18 V. c. 119, s. 7 
 

 ^ /^oc^^i^ XJi^t^2./^0^ 
 
INFANTS ACT. 61 
 
 CON. STAT. U. C. CAP. LXXIV— AN ACT RE- 
 SPECTING CUSTODY OF INFANTS. 
 
 SS. VIII. -XL 
 
 VIII. Any of the Superior Courts of Law or Equity ia 
 Upper Canada, or any judge of any of such courts, upon 
 hearing the petition of the mother of any infant, being 
 in the sole custody or control of the father thereof, or of 
 any person by his authority, or of any guardian after the 
 death of the father, may, if such Court or Judge sees fit, 
 make order for the access of the petitioner to such infant, 
 at such times and subject to such regulations as such 
 Court or Judge thinks convenient and just, and if such in- 
 fant be within the age of twelve years, 'may make order 
 for the delivery of such infant to the petitioner, to remain 
 in the care and custody of the petitioner until such infant 
 attains the age of twelve years, subject to such regula- 
 tions as such Court or Judge may direct, and such Court 
 or Judge may also make order for the maintenance of 
 such infant by payment by the father thereof, or by pay- 
 ment out of any estate to which such infant may be en- 
 titled, of such sum or sums of money from time to time, 
 as, according to the pecuniary circumstances of such 
 father or the value of such estate, such Court or Judge 
 thinks just and reasonable. 18 V. c. 126, s. 1. 
 
 IX. The Court or Judge as aforesaid may enforce the 
 attendance of any person before such Court or Judge, to 
 testify on oath respecting the matter of such petition by 
 ■order or rule made for that purpose, and on the service 
 of a copy thereof and the payment of expenses as a wit- 
 ness, in the same manner asJ in a suit or action in the 
 said Courts respectively, or may receive affidavits re- 
 specting the matters in such petition. 18 V. c 126, s. 2. 
 
 X. All orders made by the' Court or a Judge by virtue 
 
62 INFANTS ACT. 
 
 of this Act, shall be enforceable by process of contempt 
 by the Court or Judge by which or by whom such order 
 has been made. 18. V. c. 126, s. 3. 
 
 XI. No order directing that the mother shall have the 
 custody of or access to an infant shall be made by virtue 
 of this Act, in favor of a mother, against whom adultery 
 has been established by judgment in an action for crimi- 
 nal conversation, at the suit of her husband against any 
 person. 18 V. c. 126, s. 4. 
 
 As to the objects contemplated by the English Act 2 ib 3 Yic. c. 54, 
 upon which this statute is founded, see Lord Oottenham'a judgment in 
 Wardev. Warde, 2 Phill. 78 T. 
 
 As to where jurisdiction will be exercised by the Court, see Be Mnn, 
 2 DeG. A S. 45t; Re Tomlinson, 8 DeG. & S. 3Tl ; such jurisdiction ex- 
 tends both to foreign infants in the country, and native infants out of the 
 jurisdiction, Hope v. Hope, 4 D. M. ^ G. 328. 
 
 Under this statute a married woman may petition in her own name, 
 without naming a next friend, Re Groom, 1 Hare 38 ; or, in forma pauperis 
 Ex parte Hakewell, 3 D. M. & G. 116; and the order may be made ear 
 parte, if the necessity of the case requires it. Re Taylor, 11 Sim. 178. 
 
 The Courts in England have refused to interfere, where the wife has un- 
 justifiably deserted her husband, Re Taylor, 11 Sim. 178 ; where the 
 mother has contracted extravagant habits, is without means of contri- 
 buting to the child's support, and has married a second time, concealing 
 the fact from the child's guardians, Skillito v. Gollett, 8 W. R. 683 ; or 
 where there had been prior immorality on her part and there was want 
 of bona fides in the application, where there was an alleged object in 
 view and a probable chance of contamiaation. Re Moore, 1 1 Irish Com. 
 Law Reports, 1 ; Re Winscom, 2 H. & M. 540. 
 
 The Court has removed the children from the father on the grounds, of 
 notorious immorality, Wellesley v. Duke of Beaufort, 2 Buss. 1 ; Thomat 
 V. Roberta, 3 DeG. & Sm. 758 ; avowed infidelity, Shelley v. Weitbrooke, 
 Jac. 266 ; infamous criminality, though not followed by judicial convic- 
 tion, ^non, 2 Sim. N. S. 54; Swift v. Swift, 34 Beav. 266; cruelty and 
 removal out of jurisdiction, DeManneville v. DeManneville, 10 Tes . 52 ; 
 but have refused to do so on the ground of poverty, or of peculiar 
 religious views, Curtis v. Curtis, 5 Jur. N. S. 1147. 
 
 On the other hand, where the father had abandoned the care of the 
 children to their aunt the guardian of their fortunes, and was himself in 
 embarrassed circumstances, his application to have them returned to him 
 was refused, Lyons v Blenkin, Jac. 245. 
 
FOREIGN AFFIDATITS ACT. 63 
 
 4 
 
 Where natural children had been provided for by the father and were 
 under the care of a guardian appointed by him, the Court did not debar 
 the mother from access to the children, but referred to the Master to 
 ascertain what might reasonably be allowed, Courtois v^ Vincent,3a.c. 268. 
 
 For other cases on the subject see those referred to in the eases cited 
 abore. 
 
 As to the principles which govern the Court in relation to guardianship, 
 and religious education of infants, see Austin v Austin, 34 Beav. ZS'? ; Re 
 Newberry, 1 L. R. Bq. 431 ; 1 L. E. Ch. 263; Be Eaye, 1 L. R. Ch. 387 -, 
 Nugent V. Vetzera, 2 L. R. Eq. 704; Anon, 6 Grant, 632. 
 
 Although no suit is pending, the Court will, on the petition of the 
 guardian duly appointed by the Surrogate Court, interfere summarily and 
 order the person of the infant to be delivered into the custody of the 
 guardian, where there is danger of the infant being removed out of the 
 jurisdiction, Re Gillrie, 3 Grant, 279. 
 
 As to the right of a father to the custody of his children, and his obli- 
 gations, and the jurisdiction of the Court to remove the children from his 
 custody, if he neglects his duty, or on account of his immorality and 
 profligacy, see 2 W.^ T. Leading Cases, 613, 625, 651. 
 
 26TH VIC. CAP. XLI.— AN ACT RESPECTING 
 AFFIDAVITS, DECLARATIONS AND AFFIR- 
 MATIONS MADE OUT OF THIS PROVINCE, 
 FOR USE THEREIN. 
 
 HER Majesty, by and with the advice and consent of 
 the Legislative Council and Assembly of Canada, 
 enacts as follows : 
 
 I. The Governor in Council may, by one ot more com- 
 mission or commissions under his hand and seal, from 
 time to time, empower such and as many persons as he 
 may think fit and necessary, to administer oaths and take 
 and receive affidavits, declarations and affirmations in the 
 United Kingdom of Great Britain and Ireland, or any 
 Colony or dependency thereof, in or concerning any 
 cause, matter or thing depending or in anywise concern- 
 ing any of the proceedings to be had in the Courts of 
 Queen's Bench and Common Pleas, the Superior Court, 
 
64 FOREIGN AFFIDAVITS ACT. 
 
 and the Court of Chancery, or any other Court of Law or 
 Equity of Record in this Province, whether now existing 
 or hereafter to be constituted ; and every oath, affidavit, 
 declaration or affirmation taken or made as aforesaid, 
 shall be as valid and effectual, and shall be of the like 
 force and effijct to all intents and purposes, as if such 
 oath, affidavit, declaration or affirmation had been ad- 
 ministered, taken, sworn, made or affirmed before a 
 Commissioner for taking affidavits therein, or other com 
 pelent authority of the like nature. 
 
 II. The Commissioners so to be appointed shall be 
 styled " Commissioners for taking affidavits in and for 
 the Canadian Courts." 
 
 III. Oaths, affidavits, affirmations or declarations admin- 
 istered, sworn, affirmed or made, out of Canada, before 
 any Commissioner authorised by the Lord Chancellor to 
 administer oaths in Chancery in England, or before any 
 Notary Public, certified under his hand and official seal, 
 or before the Mayor or Chief Magistrate of any City, 
 Borough or Town Corporate in Great Britain or Ireland, 
 or in any Colony of Her Majesty, or in any foreign coun- 
 try, and certified under the common seal of such City, 
 Borough or Town Corporate, or before a Judge of any 
 Court of supreme jurisdiction in any Colony belonging 
 to the Crown of Great Britain, or any dependency thereof, 
 or before any Consul, Vice-Consul, Acting- Consul, Pro- 
 Consnl or Consular Agent of Her Majesty exercising his 
 functions in any foreign place, for the purposes of and in 
 or concerning any of the proceedings to be had in 
 the said Courts, shall be as good, valid and eifectual, and 
 shall be of like force and effect to all intents and pur- 
 poses, as if such oath, affidavit, affirmation or declara- 
 tion had been administered, sworn, affirmed or made in 
 this Province before a Commissioner for taking affidavits 
 therein, or other competent authority of the like nature. 
 
FOREIGN AFFIDAVITS ACT. 65 
 
 IV. Any document purporting to have affixed, impres- 
 sed, or subscribed thereon or thereto the signature of 
 any such Commissioner, or the signature and official seal 
 of any such Notary Public, or the seal of the Corpora- 
 tion and the signature of any such Mayor or Chief 
 Magistrate as aforesaid, or the seal and signature of any 
 such Judge, Consul, Vice-Consul, Acting-Consul, Pro- 
 Consul or Consular Agent, in testimony of any such 
 oath, affidavit, affirmation or declaration having been 
 administered, sworn, affirmed or made, by or before him, 
 shall be admitted in evidence without proof of any such 
 signature or seal and signature being the signature or the 
 seal and signature of the person whose signature or seal 
 and signature the same purport to be, or of the official 
 character of such person. 
 
 V. Any affidavit, declaration or affirmation proving the 
 execution of any Deed, Power of Attorney, Will, or 
 Probate or Memorial thereof, for the purpose of registra- 
 tion in this Province, may be made before a Commis- 
 sioner appointed under this Act, or other person autho- 
 rized hereby to administer or take oaths, affidavits, de 
 clarations and affirmations. 
 
 VI. No informality in the heading or other formal re- 
 quisites to any affidavit, declaration or affirmation made 
 or taken before any Commissioner or other person under 
 this Act, shall be any objection to its reception in evi- 
 dence, if the Court or Judge before whom it is tendered 
 think proper to receive it. 
 
 VII. If any person shall tender in evidence any such 
 document as aforesaid with a false or counterfeit seal or 
 signature thereto, knowing the same to be false or coun- 
 terfeit, he shall be guilty of felony, and shall be subject 
 to the punishment by Law provided for felony. 
 
66 I/AW STAMPS ACT. 
 
 27 & 28 VIC, CAP. v.— AN ACT FOR THE COL- 
 LECTION BY MEANS OF STAMPS, OF FEES 
 OF OFFICE, DUES AND DUTIES PAYABLE TO 
 THE CROWN, UPON LAW PROCEEDINGS 
 AND REGISTRATIONS. 
 
 SS. I, XI.— XX, XXIX, XXX. 
 
 WHEREAS it is expedient that all Fees and 
 Charges, payable to the Crown, for or upon any- 
 proceeding or matter in this Act mentioned shall be 
 collected in the manner herein provided : Therefore, Her 
 Majesty, by and with the advice and consent of the 
 Legislative Council and Assembly of Canada, enacfs as 
 follows : 
 
 I. Upon, from and after the first day of October nest, 
 Stamps shall be issued by order of the Governor in 
 Council in such form and subject 1o such other directions 
 as shall be thereby and as shall thereafter be from time 
 to time by the like order provided, for the purposes 
 hereinafter mentioned. 
 
 XI. Upon, from and after the day in the first section 
 mentioned, no money shall be paid to or shall be received 
 by any Court or to or by any officer entitled to receive 
 any such fees as aforesaid, for any such fee due and 
 payable to the Crown, under any of the said Acts. 
 
 The acta referred to in this section are, Con. Stat. U. C, cc. 15, 16, 19^ 
 4; 33; c. 10, s. 29; c, 12, s. 11 ; c. 13, s. 65; and c. 35, a. 26. 
 
 XII- Upon, from and after the said day, no matter or 
 proceeding whatever upon which any fee is due or pay- 
 able to the Crown as aforesaid, shall be issued dr shall 
 be received or acted upon by any Court or by any officer 
 entitled to receive any such fee until a stamp or stamps 
 under this Act for the sum corresponding in amount with 
 the amount of the fee so due or payable to the Crown as 
 
LAW STAMPS ACT. 67 
 
 aforesaid, for, upon or in respect of such matter or pro- 
 ceeding, and in lieu of such sum so due and payable to 
 the Crown, shall have been attached to or impressed 
 upon the same. 
 
 XIII. Every matter and proceeding whatever, upon 
 which any such fee is due and payable to the Crown as 
 aforesaid, and which is not so duly stamped shall, if not 
 afterwards stamped under the provisions of this Act, be 
 absolutely void for all purposes whatsoever. 
 
 XIV. In all cases of search, examining and authenti- 
 cating office copies of papers made by the Attorney or 
 Solicitor, and in all other cases where it has not been 
 customary to use in reference to such search, exami- 
 nation, authentication, matter or thing, any written or 
 printed document or paper whereon the stamp could be 
 stamped or affixed, the party or his Attorney or Solicitor, 
 requiring such matter or thing so to be done, shall make 
 application for the same by a short note or memorandum 
 in writing, and a stamp or stamps to the amount of the 
 fee so payable, shall be stamped on or affixed to such 
 note or memorandum. 
 
 XV. No Sheriff or other officer or person shall serve 
 or execute any writ, rule, order or proceeding, or the copy 
 of any writ, rule, order or proceeding upon which any 
 such fee or charge is due or payable, and which is not 
 duly stamped under this Act, and every such service and 
 execution contrary to this Act shall be void, and no re- 
 compence shall be allowed therefor. 
 
 XVI. No matter or proceeding which may have been 
 duly stamped for the purpose for which it may have been 
 used, shall be considered as stamped for any other pur- 
 pose, in case another fee or charge is due or payable 
 thereon for any other or further use of the same matter 
 or proceeding. 
 
68 LA.W BtHitPt A.CT. 
 
 XVII. The Court in which any such matter or pro- 
 ceeding is, or is pending, which ought to be, but is not so 
 duly stamped, shall not, nor shall any Judge of such 
 Court take or allow any matter or proceeding to be had 
 or taken upon, or in respect of such matter and proceed- 
 ing, although no exception be raised thereto by any of 
 the parties, until such matter or proceeding has been first 
 duly stamped. 
 
 XVIII. Any party to any matter or proceeding in any 
 Court which ought to be, but is not so duly stamped, 
 may apply to the Court in which such matter or proceed- 
 ing is pending, or to any Judge having jurisdiction in the 
 case for leave to have the same duly stamped, and in 
 case this Act has not been knowingly and wilfully vio- 
 lated, the application shall on payment of costs be 
 granted for the duly stamping of such matter or proceed- 
 ing with stamps of such amount beyond the fee due 
 thereon as may be thought reasonable, not exceeding ten 
 times the amount of the stamp. 
 
 XIX. The affixing of such stamp or stamps, under 
 any order for that purpose, shall have the same effect as 
 if the said matter or proceeding had been duly stamped 
 in the first instance. 
 
 XX. In every case in which a stamp or stamps has or 
 have, under this Act, been attached to or impressed 
 upon £my matter or proceeding, it shall be the , duty of 
 the officer who may issue or who may receive such 
 matter or proceeding, forthwith upon the issue or upon 
 the receipt thereof, to cancel the same by writing or 
 stamping or impressing in ink on such stamp his name and 
 the date thereof, so as effectually to obliterate and 
 cancel the stamp, and so as not to admit of its being 
 used again. 
 
 XXIX. Every person who shall knowingly issue, or 
 
LAW STAMPS ACT. 69' 
 
 shall knowingly receive, procure or deliver, or who shall 
 knowingly serve or execute any writ, rule, order, matter 
 or proceeding upon which any fee is due or payable tc 
 the Crown as aforesaid, without the same being first duly 
 stamped under this Act, for the fee payable thereon, 
 shall be subject for the first offence, to a fine not exceed- 
 ing ten dollars, for the second. offence, to a fine not ex- 
 ceeding fifty dollars, and for the third and every subse- 
 quent offence, to a fine of two hundred dollars ; and in 
 default of payment of such fines to an imprisonment not 
 exceeding one month for the first offence, l^hree months 
 for the second offence and one year for the third and any 
 subsequent offence. 
 
 XXX. Every person who shall fail or omit to obliterate 
 and cancel any stamp in the manner and at the time 
 hereinbefore provided, shall be subject to a fine not ex- 
 ceeding twenty dollars, and in default of payment thereof, 
 to imprisonment for a period not exceeding two months. 
 
 28TH VIC. CAP. XVII.— AN ACT TO AMEND 
 THE CONSOLIDATED STATUTE RESPECT- 
 ING THE COURT OF CHANCERY. 
 
 HER Majesty, by and with the advice and consent of 
 the Legislative Council and Assembly of Canada, 
 enacts as follows : 
 
 I. The Court of Chancery in Upper Canada shall have 
 the same jurisdiction as the Court of Chancery in Eng- 
 land has, in regard to leases and sales of settled estates, 
 and in regard to enabling minors, with the approbation 
 of the Court, to make binding settlements of their real 
 and personal estate on marriage ; and in regard to ques- 
 tions submitted for the opinion of the Court in the form 
 of special cases on the part of such persons, as may by 
 
70 CHANCERY ACT. 
 
 themselves, their committees or guardians, or otherwise, 
 concur therein. 
 
 The jurisdiction exercised by the Court of Chincery in England, in 
 regard to leases and sales of settled estates, is regulited by the Imp. Acts 
 19 4 20 Vic. v;. 120 ; 21 it 22 Vic. c. T7 ; 25 A 26 Vic, c. 108 ; & 28 Vic. 
 c. 46. 
 
 As to what are settled estates within the meaning of these Acts, see 
 iJe Laing"$ Settled Ettalea, 1 L. R. Eq. 416 ; Re Greene, 10 Jar. N. S. 
 1098; Re Sardin's Will, 1 W. R. 711 ; lie Clark, 1 L. R. Ch. 292. 
 
 As to the mode of applying to the Court and the parties who may do 
 BO, see Harvey v. Clark, 25 Bear. 1 ; Williams v. Williams, 9 W. R. 888 ; 
 Jie Thompton't Settled Eitates, Johns. 418 ; Re Goodwin't Settled Eitatet, 
 3 Giff. 620. 
 
 Aa to appointment of guardians for infants who may be interested, Re 
 Longttaff's' Settled Ettate; 1 Dr. & Sm. 142 ; Re Hargreave^s Settled 
 Estates, 7 W. R. 156 ; Re Caddick'e Settled Estates, 7 W. R. 834. 
 
 As to married women, and consents by them, see Re Foster's Settled 
 Estates, 24 BeaT. 220 ; 1 De G. & J. 886 ; Re Lord Be Tabley's Settled 
 Estates, 11 W. R. 936 ; Re Sendyshe, 3 Jur. N. S. 727. 
 
 As to the persons to be served with notice, or whose consent must be 
 obtained, Re Boughton, 12 W. R. 34 ; Re Tarbutt, 8 L. T. N. S. 657 ; Eyre 
 V. Saunders, 4 Jur. N. S. 830 ; Grey v. Jenkins, 26Beav. 351 ; Rs Potts, 15 
 W. R 29 ; Re Brown, 11 W. R. 19. 
 
 If consent refused, lease cannot be made, however beneficial it 
 might have been to the estate; Rs Merry's Estate, 15 W. R. 307; Re 
 Hutchinson, 14 W. R. 473 ; Re Hurle's Settled Estate, 2 H. & M. 196 ; but 
 an order may be made " subject to, and so as not to affect the rights, 
 estate and interest of any person whose consent has been refused or can- 
 not be obtained," Re Legge, 6 W. R. 20 ; Re Parry, 34 Bear. 462 ; and 
 see Re Tarbutt, 8 L. T. N. S. 603, where the consent of a lunatic, not so 
 found by inquisition, was dispensed with. 
 
 As to re-investment of the proceeds arising from the sale. Wall v Hall, 
 11 W. R. 298 ; Re Sexton Barm' Settled Estate, 10 W. R. 416. 
 
 As to coats, see Re Parby's Settlement, 29 L. T. 72 ; Re Marner, 3 L. 
 R. Eq. 432. 
 
 The Imp. Act 18 & 19 Vic. c. 43, is that which enables minors in Eng- 
 land, to make binding settlements of their real and personal estate on 
 marriage. Under this Act it has been held that the Act does not impose 
 on the Court any dnty of enquiring as to the propriety of the marriage, 
 but that it can consider the propriety of the settlement only, Re Dalton, 
 3 Sm. <fc G. 331 ; 6 D. M. & G. 201 ; where the lady's portion was consid- 
 erable the Court referred the whole matter to Chambers, Re Olive, 11 W. 
 R. 819. The Act extends to post nuptial settlements, Re Hoare, 11 W 
 R. 181 ; Powell v. Oakley, 84 Beav. 575 ; but the Court cannot approve 
 
CHANCERY ACT. 71 
 
 a settlement originally made without its concurrence, lie Fuller, 
 1860. 
 
 A petition is necessary though a suit is pending, Pearetk v Marriott, 1 
 W. N. 48. 
 
 The jurisdiction of the Court in England, as to special cases depends 
 upon the Imp. Act 13 & 14 Tic c. 35. By that Act a husband interested 
 in right of his wife in any question, may concur in a special case in his 
 own name and in the name of his wife, where she has no claim to an 
 interest distinct from her husband, and where a married woman has 
 such distinpt interest she may concur in her own right, provided her 
 jiusband concurs also. The Committee of a lunatic must obtain authority 
 from the Court before he can concur. 
 
 An application for a guardian ad litem, or for a special guardian, on 
 behalf of an infant, for the purpose of concurring in a special case, should 
 be made by motion, Re Goodfellow, 1 W. R. 446 ; and need not be by a 
 neit friend ; and should be supported by an afflddvit of the fitness of the 
 proposed guardian. Ex parte Craig, 15 Jur. 762. 
 
 The father of the infant being a party to the special case and having 
 no adverse interest, it was held not necessary to appoint a guardian ad 
 litem, Ellis v. Ouitton, 18 L. T. 260 ; but the interest of the infant should 
 at the hearing be protected by separate Counsel, Wright v. Woodham, l.T 
 L. T. 293. 
 
 The affidavit should be styled " In the matter of the infant," and " In 
 the matter of the Act," Star v. Newberry, 20 Beav. 14 ; not " In the special 
 case, &c.," Madditon v. Skein, 6 L. T. N. S. 20. 
 
 A special case may be amended,' Thiiilethteaite v. Gamier, 5 De G. & Sm. 
 73 ; where it had been set down for hearing, Domville v. Lamb, 9 Hare 
 App. 55 ; and even at the hearing. Belt v. Cade, 2 J. <fe H. 122 ; and it 
 may on abatement be revived, WiUon v. Whateley, 1 J. ife H. 331; Aina- 
 worth V. Mman, 14 Beav. 697. 
 
 Generally the Court will only give its opinion on questions of con- 
 struction, and not bind the rights of parties, Bailey v. Collett, 23 L. J. 
 Ch. 230. 
 
 As to what the Court will or will not decide on a special case, see 
 Schroder v. Schroder, Kay 578 ; Evant v. Saunders, 1 Drew. 415, 654 ; Day 
 V. Uay, 18 Jur. 1013 ; Leslie v. Thompson, 9 Hare 268 ; Wilson v. Bennett, 
 20 L. J. Ch. 279 ; Edwards v. Milbank, 4 Drew. 608 ; Bell v. Cade, 2 J. & 
 H.122; Earl of Tyrone v. Marquis of Water ford, 1 D. P. & J. 618. 
 
 II. The Court shall have the same equitable jurisdic- 
 tion in matters of revenue as the Court of Exchequer in 
 England possesses. 
 
 Before the passing of this Act it was held that the Court did not pos- 
 vsess snch jurisdiction. Miller v. Atty.-Gen., 9 Grant, 558. 
 
72 CHANCERY ACT. 
 
 As to the equitable jurisdiction possessed by the Court of Exchequer 
 in England, in revenue matters, see 33 Hen. 8, c. 39, i. 79 ; jltty.-Gtn. 
 V. Hailing, 15 M. k W. 687 ; Ex parte Colebrooke, 1 Price, 87 ; Colebrooki 
 V. Atty.-Gen., 1 Price, 146 ; Manning's Exch. Pr., 101. 
 
 III. In all cases in which the Court has jurisdiction 
 to entertain an application for an injunction against a 
 breach of any covenant, contract or agreement or against 
 the commission or continuance of any wrongful act, or 
 for the specific performance of any covenant, contract or 
 agreement, the Court, if it thinks fit, may award damages 
 to the party injured either in addition to or in substitu- 
 tion for such injunction or specific performance, and such 
 damages may be ascertained in such manner as the 
 Court may direct, or the Court may grant such other 
 relief as it may deem just. 
 
 The question of damages will not be entertained, Picept in cases where 
 the Court has jurisdiction irrespective of any right to them, i)ur<W v. 
 Pritchard, 1 L. R. Ch. 244 j Hindley v. Emtry, 1 L. R. Eq. 52 ; Zewers v. 
 Earl of Shaftesbury, 2 L. E, Eq. 270 : Wtdmore v. Corporation of Brittol, 
 11 W. R. 136; Swaint v. Great Morthern Rail. Co., 12 W. R. 391. If the 
 jurisdiction existed at the time of filing the bill, the Court will entertain 
 the question of damages, though something occurs during the litiga- 
 tion which prevents the jurisdiction attaching at the hearing, Davenport 
 V. Hylands, 1 L. R. Eq. 302 ; Eaittcood v. tewit, 33 L. J. Ch. 865 ; Cory v. 
 Thames Iron Co., 11 W. R. 689. 
 
 Ad inquiry as to damages sustained by infringement of a patent, will 
 not be given where an issue as to damages was not submitted to the 
 jury, which in the same suit tried the validity of the patent, Needham v. 
 OxUy, 2N. R. 388. 
 
 The Court may, and in some cases does, grant damages in substitution for 
 other relief, as the more appropriate remedy, Senior v. Pawion, 3 L. R. 
 Eq. 330 ; Martin v. Htadon, 2 L. R. Eq. 425 ; Durell v. Pritchard, 1 L. R. 
 Ch. 244 ; Hawev. Hunt, 81 Beav. 420 ; Franklithe v. Ball, 33 Beav. 560 ; 
 Cotton V. Wyld, 82 Beav. 266 ; Tillett v. Charing Cross Rail. Co., SS 
 Beav. 419. 
 
 If the plaintiff docs any act which disentitles him to specific perform- 
 ance of the agreement, he will not be entitled to damages, Collier v. 
 Stuteley, 1 W. R. 710 ; Bauman v. Matthias, 4 L. T. K. S. 784 ; so if th« 
 injury complained of is trivial, Clarke v. Clarke, 1 L. R. Ch. 16 ; Cur- 
 riers' Co. V. Corbett, 13 W. R. 1056 ; but in such a case the dismissal of 
 
CHANCERY ACT. 73 
 
 the bill will be without prejudice to the plaintiff's right to bring an action 
 at law, Robton v. WMitingham, 1 L. R. Ch. 442. 
 
 "Where the agreement is uncertain, damages will not be given, Lancat- 
 ttT V. Be Trafford, 10 W. R. 474; Darby v. Whittaker, 4 Drew. 134. 
 
 Damages may be granted though not prkyed by the bill, Currieri Co. 
 V. Corbett, 2 Dr. <k Sm. 355 ; Calton v. Wyld,'32 Bear. 266. 
 
 For form of decree directing special enquiry as to damages, see Mid- 
 dleton V Greenwood, S W. R. 150. 
 
 On an application for an injunction the Court always now requires the 
 plaintiff to give an undertaking as to damages. The undertaking should 
 be inserted in the order for the injunction in these words : " And the plaiB- 
 tiff, by hia Counsel, undertaking to abide by any order the Court may 
 make as to damages, in case this Court should hereafter be of opinion 
 that the defendant shall have sustained any, by reason of the order which 
 the plaintiff ought to pay." An order directing an inquiry as to damages 
 may be obtained after a decree dismissing the bill," Newby v. Harriaon, 
 1 Jar. N. S. 981 ; Coy v. Henderson, Chambers. 
 
 • 
 
 IV. An Order or Decree for alimony may be registered 
 in any Registry Office in Upper Canada, and such regis- 
 tration shall, so long as the Order or Decree registered 
 remains in force, bind the estate and interest of every 
 description which the defendant has in any lands in the 
 County or Counties where such Registration is made, 
 and operate thereon for the amount or amounts by 
 such Order or Decree ordered to be paid in the same 
 manner and with the same effect as the Registration of 
 a charge of a life annuity, created by the defendant on 
 his lands would ; and such Registration may be effected 
 through a certificate by the Registrar of the Court of 
 such Order or Decree. 
 
 V. Where a commission of lunacy would have been 
 heretofore necessary or proper, the Court in lieu thereof 
 may, with or without the aid of a Jury (which the Court 
 or a Judge thereof may cause to be empanelled as in 
 other cases) hear evidence and enquire into and deter- 
 mine upon the alleged lunacy, provided that the alleged 
 lunatic shall have a right in such cases to demand that 
 the inquiry be submitted to a jury, or the Court may or- 
 der that the enquiry be had before any Court of Record, 
 
74 CHANCERY ACT. 
 
 and every such inquiry, whether under a commission of 
 lunacy, or before any such Court of Record, shall be con- 
 fined to the question, whether or not the person who is the 
 subject of the inquiry, is at the lime of such inquiry of 
 unsound mind or incapable of managing himself or his 
 affairs, and the verdict rendered by a Jury shall in every 
 ease be returned unto the Court, certified by the Judge 
 before whom the inquiry has been had, and shall be final 
 as to the question on such inquiry, unless the same be 
 ^et aside. 
 
 By the Imp. Act 25 & 26 Vic. t. 86, ». .3, no evidence as to anything 
 
 done or said by the supposed lunatic, or as to his demeanour or state of 
 
 mind at any time being more than two years before the time of the 
 
 |t inquiry, shall be receiTed in proof of insanity on any such inquiry, or on 
 
 any trarerse of an inqnisition, flnless the Court shall otherwise direct. 
 
 Where on an application in lunacy the Court ordered the Sheriff to 
 empanel a Jury, for the then next sittings of the Court, and the matter 
 was not proceeded with until the sittings succeeding the next, it was 
 laid that the panel was not properly constituted, and that the Sheriff's 
 authority to summon a Jary was confined to the first sittings after the 
 date of the order. Be McNulty, 13 Grant, 463 ; an alleged lunatic should 
 receire the same notice of a trial before the Court, as on an inquisition 
 under the former practice. Ibid. 
 
 VI. Where any such inquiry is had by the Court, with 
 or without the aid of a Jury or before a Court of Record, 
 no traverse shall be allowed, but the Court, if dissatisfied 
 with the finding of a Jury, may, at the instance of any 
 party who would be entitled to traverse an inquisition 
 under commission of lunacy, direct a new trial or new 
 trials from time to time upon application therefor made 
 to the Court within three iponths from the time the ver- 
 dict is rendered, or such further time as the Court, 
 under special circumstances, may permit, and subject to 
 such directions and upon such conditions as to the Court 
 may seem proper, and the Court may order any such 
 new trial to be had before the same Court in which the 
 verdict was rendered or before any other Court. 
 
 See notes to Con. Stat. 0. C. c. 12, ss. 34 & 35. 
 
CHANCERY ACT. 75 
 
 VII. On every such inquiry, the alleged lunatic,' if he 
 be within the jurisdiction of the Court, shall be produced 
 and shall be examined at such times and in such man- 
 ner either in open Court or privately before the Jury shall 
 retire to consult about their verdict, as the presiding 
 Judge may direct, unless the Court ordering such inquiry 
 shall beforehand by order have dispensed with such ex- 
 amination. 
 
 By the Imp. Stat. 35 & 26, Vic. c. 86, a. 6, the alleged insane person 
 13 to be examined before the taking of the evidence is commenced, and 
 at the close of the proceedings, before the jury consult as to their verdict, 
 unless the presiding Judge otherwise direct. 
 
 As to the inspection of the alleged lunatic by the jury, see Re Smith 
 1 Swan, 4 ; Ex parts Southcote, Ambler, 109. 
 
 A lunatic taken out of the jurisdiction, may be directed to be brought 
 back for the purpose of the inquiry, Re Wykeham, 1 T. ife R. 537, 
 
 VIII. Any order by a single Judge in a matter of lunacy, 
 shall be subject to rehearing before the full Court, and 
 any order of the full Court shall be subject to an appeal 
 to the Court of Error and Appeal respectively within the 
 same times and under the same conditions as in other 
 cases in the said Court of Chancery, unless the said 
 Court or a Judge thereof, shall otherwise order. 
 
 Under this seclion the practice as to appealing in lunacy matters seems 
 to differ from that in ordinary suits. By Con. Stat. U. C, c. 12, a. 22, 
 decrees and orders made by a single Judge have the force and effect of, 
 and are deemed for all purposes to be, decrees and orders of the Court ; 
 so that a decree made by a single Judge used not be reheard, but may 
 be carried direct to the Court of Error and Appeal In lunacy, rehearing 
 seems necessary before going to the Court of Error and Appeal. 
 
 IX. The Court may order the costs, charges and ex- 
 penses of and incidental to the presentation of any 
 petition for a commission of hinacy or any inquiry, in- 
 quisition, issue, traverse, or other proceeding in lunacy, 
 to be paid either by the party or parties presenting such 
 petition or prosecuting the same or such inquiry or other 
 proceeding in lunacy, or by the party or parties opposing ^ 
 
76 CHANCERY ACT. 
 
 ihe same, or out of the estate of the alleged lunatic, or 
 partly in one way and partly in another. 
 
 Where the jury found a verdict of lunacy and the alleged lunatic had 
 eo conducted himself as to afford grounds for the application againit 
 him, the Court, while quashing the inquisition, refused to charge the party 
 applying for the commission with the costs, Re Milne, 11 Grant 187 ; and 
 where the enquiry ended in a Terdict of sanity, the Court, considering 
 that upon the whole evidence there was reasonable ground for queetien- 
 ing the sanity, refused to order the applicants for the enquiry to pay th» 
 costs of the alleged lunatic, lis Windham, 8 Jnr. N, S. 448 ; 31 L. J , N. S. 
 Ch. 720 ; see as to costs. Re Loveday, 1 D. M. 4 G. 276 ; Ex parte Glower, 
 1 Mer. 269; Ex parte Fernt, 5 Ves. 832. 
 
 Where the wife of an alleged lunatic presented a petition praying an 
 enquiry as to his state of mind, which was ordered to stand over, and in 
 the meantime the husband recovered, the costs of the petition were 
 ordered to be paid out of the lunatic's estate. Re F. S3 L. J. N. S. 333. 
 
 X. The seventy-third section of the said Act is amend- 
 ed by inserting therein immediately after the words " sui 
 juris " the words " or non compotes mentis." 
 
 XI. The Court shall have the same powers of regulat- 
 ing the practice in matters of lunacy and in all matters 
 under this Act as in other cases within the jurisdiction 
 of the Court. 
 
 XII. Where a defendant or respondent in any suit or 
 matter is absent from the Province or cannot be found 
 therein to be served, the Court may authprize proceedings 
 to be taken against him according to the practice of the 
 Court in the case of a defendant, whose residence is un- 
 known, or in any other manner that may be provided or 
 ordered, if the Court shall, under the circumstances of 
 the case, deem such mode^of proceeding conducive to 
 the ends of justice. 
 

QUIETING TITI-ICS ACT. " 77 
 
 29th VIC. CAP. XXV.— AN ACT FOR QUIETING 
 TITLES TO REAL ESTATE IN UPPER CANADA. 
 
 WHEREAS it is expedient to give certainty to the 
 title to real estate, in Upper Canada, and to facili- 
 tate the proof thereof; and also to render the dealing with 
 land more simple and economical : Therefore, Her Ma- 
 jesty, by and with the advice and consent of the Legis- 
 lative Council and Assembly of Canada, enacts as fol- 
 lows: 
 
 I. Any owner of an estate in fee simple in land in Up- 
 per Canada, or anjr trustee for the sale of the fee simple, 
 shall be entitled to have his title judicially investigated 
 and the validity thereof ascertained and declared ; and 
 he shall be so entitled whether he has the legal estate or 
 not, and whether his title is subject or not to any charges 
 or incumbrances. 
 
 The principal objects sought to be attained by this Act, are the giving 
 greater certainty to titles, and by facilitating the proof of them to render 
 the dealing with land simple and leas eipensiTe. As the law stood before 
 the passing of this Act, an owner of land might hare an indisputable 
 title, erery link in the chain of which he could easily prove, but he had 
 no certainty that when years after he might be called upon to prove his 
 title, he could do so. Title deeds might in the meantime be lost, or acci- 
 dentally destroyed, witnesses might die, or important facts might have 
 escaped from their memories. Kven if his title was in any way attacked 
 he had in most cases only an opportunity of shewing his legal title. In 
 an action at law, questions of the eqni[(able title or of equitable interests 
 in the property are rarely touched, and whatever the result of the action 
 may be, it is binding only upon the parties to the action. If repeated ac- 
 tions are brought, the same steps have to be gone through, and the same 
 evidence adduced in each action. 
 
 Besides, many of the defects in a title are such that if known of In time 
 they can easily be remedied, but are incurable after the lapse of some 
 yean. The original parties to the transaction may be dead, and their 
 heirs, minors or unknown, so that confirmation deeds cannot be got. 
 Or those who are In a position to take advantage of the defect, may be 
 tempted to do so, by a rise in the value of the property. 
 
 This Act is intended to remedy these evils as far as possible, by permit- 
 ting any owner of land to have his title submitted to judicial inrestiga- 
 
78 QUIETING TITLES ACT. 
 
 tion, and adjudicated upon, even though no hostile claina is being made. 
 
 When the owner has established his title, after due enquiry and every 
 precaution on the part of the Court against error or fraud, he is to be 
 entitled to a certificate, which is to be conclusire against every person, 
 that at its date the person named in it was the owner of the property 
 and which is intended to be a new starting point for his title. 
 
 By this means, in the case of every person who has the wisdom to take 
 advantage of the Act, the dealing with his property will be a matter of 
 great simplicity. • 
 
 Where a certificate of title has been obtained under this Act, many of 
 the questions arising on every title will be avoided. An intending pur- 
 chaser need not enquire into the genuineness of the various deeds, or a» 
 to their due execution ; all doubt as to the sufficiency of any will forming 
 a link in the title, or the capacity of the testator when he executed it^ 
 will be set at rest. Where married women have been the grantors, there 
 will be no need for enquiry as to whether they were duly examined as 
 required by law, and certificates of the fact in due form endorsed on the 
 deeds. He knows that these and all similar questions have been submitted 
 to a close and careful scrutiny, and satisfactorily established. 
 
 All reasonable precautions are provided by the Act to prevent the pos- 
 sibility of injustice. Before a certificate of indefeasible title is granted, 
 the Court is to make, either itself or by a competent oflScer acting under 
 the supervision of a Judge, a thorough examination of all the deeds and 
 evidences of title which are in the possession or power of the petitioner ; 
 the Registry office must be carefully searched, and copies of all memo- 
 rials relating to deeds, the originals of which cannot be found, must be 
 produced. The petitioner must make an affidavit that he knows of no 
 adverse claim, and his solicitor or counsel must certify that he has ex- 
 amined the title and conferred with the applicant, and that he believe^ 
 the title to be a good one, and the affidavit true. 
 
 Notice of the application is also to be given, not only to any one who 
 may appear to have an adverse claim, but to any one the Judge may 
 think should have notice of the proceedings. Notice is also to be pub- 
 lished in the Gazette, and other Newspapers, so that if there is any claim- 
 ant, whose title does not appear on Registry nor in the deeds, and who is 
 unknown to the petitioner or fcis advisers, he may, if possible have notice 
 of what is going on, and have an opportunity of asserting his rights. 
 
 Where a petitioner in proceeding under this Act, makes out his title sat- 
 isfactorily, he is entitled to a, certificate unless the title can be sucoess- 
 fally impeached at law or in equity ; and if a bill filed by the contestant 
 impeaching the transaction, by which the claimant's title arose, could be 
 successfully resisted by claimant on any ground, it will form no obstacle 
 to a certificate being granted to the claimant, Laing v. Matthewt, 14 Gr. 36. 
 
 If the opposing claim is such that had a bill been filed by the party en- 
 titled to enforce it, the claimant would have had a good defence as » 
 
QUIETING TITLES ACT. 79 
 
 bona fide purchaser for value, without notice, the claimant will be entitled 
 to a certificate of title, Cochrane v. Johnston, a. 14 Gr. 111. 
 
 U. Any other person who has any estate or interest, 
 legal or equitable, in or out of land in Upper Canada, 
 may also apply for the investigatioa of his title and a de- 
 claration of the validity thereof ; but it shall be in the dis- 
 cretion of the Judge by or before whom the proceedings are 
 taken, to grant or refuse the application for the investi- 
 gation ; and such discretion may be invoked and exer- 
 cised at any stage of the proceedings, and the decision of 
 the Judge in exercising such discretion shall be subject 
 to appeal like any other decision. 
 
 III. The application shall be to the Court of Chancery 
 or any Judge thereof, and may be by a short petition in 
 the form given in Schedule A. 
 
 The solicitor should carefully and thoroughly investigate the title, and 
 the evidence which can be adduced in support of it before filing- the pe- 
 tition. If on such investigation he discovers an insurmountable defect, 
 or that the evidence on any material point is unattainable, he should not 
 file the petition, as the registration of a petition as required by the Act, 
 without any certificate following it, will form a cloud upon the title. 
 When the solicitor has examined the title and found it perfect, he should 
 prepare the petition, following the form given by the Act, which should 
 strictly be followed, and varied only in special cases. 
 
 The filing of a petition is not such a proceeding as will save the rights 
 of a party contestant, otherwise barred by the Statute of Limitations) 
 Laing v Avery, 14 Gr. 33. 
 
 IV. A certificate by the Registrar of the said Court, of 
 the petition being filed, shall be registered in the Regis- 
 try Office of the County in which the land lies, and this 
 certificate may be in the form given in Schedule B. 
 
 V. The application shall be supported by the following 
 particulars : 
 
 1. The title deeds (if any) and evidences of title re- 
 
'80 QOIETIWQ TITLES ACT. 
 
 lating to the land that are in the possession or power of 
 the applicant ; 
 
 2. A certified copy of the memorials of all other regis- 
 tered instruments affecting the land, or of all since the 
 last judicial certificate, if any under this Act, was given 
 (as the case may be), up to the time of the registering 
 of a certificate of the petition as provided for by section 
 four ; 
 
 3. The certificate of the Registrar of the County in 
 which the land lies, as to bills and proceedings in Chan- 
 cery or in any County Court on its equity side, relating 
 to the land, and of which a certificate has been registered 
 in his office ; 
 
 4. A concise statement of such facts as are necessary 
 to make out l^he title, and which do not appear in the pro- 
 duced documents ; but no abstract of produced docu- 
 ments shall be required, except on special grounds ; 
 
 5. Proofs of any facts which are required to be proved 
 in order to make out the title, and which are not estab- 
 lished by the other produced documents, unless the Judge 
 shall dispense with such proofs until a future stage of 
 the investigation ; 
 
 6. An affidavit or deposition by the person whose title 
 is to be investigated and a certificate of one of his Coun- 
 sel or Solicitors, to the effect hereinafter respectively men- 
 mentioned, unless the Judge sees fit, for some special rea- 
 son, to dispense with the same respectively ; 
 
 7. A Schedule of the particulars produced under the 
 preceding six subsections. 
 
 The solicitor should, before anf proofs are laid before the Master or 
 other Referee, obtain all the necessary affidavits proving possession of 
 the land to hare gone with the ownership, the heirship of parties claim- 
 
QUIETING TITLES ACT. 81 
 
 ing by descent, the death of parties entitled to dower, or tenancy by the 
 curtesy, that the land is not chargeable with any Crown debts, or with 
 certain debts only, that all taxes on the land have been paid up to the 
 first of January next preceding the filing of the petition, that there are no 
 writs of execution in the Sheriff's hands against any person interested in 
 the land, and that the land has not been sold for taxes within eighteen 
 months preceding the filing of the petition, or under execution within six 
 months preceding. 
 
 Where the Registrar is unable, from the description of the property, to 
 certify that the memorials mentioned are all that affect the land, a Sur- 
 Teyor or other competent person should examine the property, and after 
 examining the Registry books, should make an aflidaTit that the memo- 
 rials produced are all those that affect the land. 
 
 Where the deeds are lost or cannot be produced, the same evidence of 
 their loss and contents must be given as on a trial at law, before second- 
 ary evidence can be received. 
 
 Where title is derived through Sheriff's sale under an execution, the 
 affidavit should state the volume and page of the Gazette, and the names 
 and dates of the local Newspapers, in which the advertisements appeared ; 
 and where the title is derived through a Sheriff's sale for taxes, the affi- 
 davit must shew that all the requirements of the Statute have been strictly 
 complied with. 
 
 By evidences of title, in the first clause, is meant especially written 
 documents other than title deeds ; not proofs of facts, which are provided 
 for by clause five. 
 
 Where a deed is executed under a power of attorney, the power of at- 
 torney must be produced, or secondary evidence of it given, as in the 
 case of any other title deed, and evidence should be furnished that at the 
 time when the power was acted upon, the owner was alive ; except in 
 cases coming under the 29 Vic. c. 28, ss. 23, 24. 
 
 Clause two shews that until the certificate of filing the petition is re- 
 ^stered, the particulars to support the application cannot be delivered to 
 the Referee, for prior to the registering the certificate a certified copy of 
 all memorials " up to the time of registering the certificate " cannot be 
 procured. 
 
 If a petitioner intends to use certified copies of memorials as evidence, 
 he must also procure and produce certified copies of the afSdavits of ex- 
 ecution. 
 
 The concise statement of facts spoken of in clause four, is intended to 
 to embrace all facts necessary to make out the title, and which do not 
 appear on the documents produced— as title by length of posession, deaths, 
 . descents, Ac, dates being given in all cases where possible. 
 
 iThe proof of facts referred to in clause five, such as length of possession, 
 marriages, deaths, loss of deeds, searches for them and their contents, 
 
82 Q0IET1NG TITLES ACT. 
 
 Bhould accompany the deeds when delivered to the Referee, unless viva 
 voce eTidence hag to be given. 
 
 Where the wife of a grantor does not join in a conveyance, evidenc& 
 should bS given that the grantor was unmarried, or that dower is barred 
 by time or otherwise. 
 
 The word Judge, in sub-section 6, includes Referee, see sees. 25, 52. 
 
 VI. The affidavit or deposition of the person whose 
 title is to be investigated, shall state to the effect, that to 
 the best of his knowledge and belief he is the owner of 
 the estate or interest (whatever it is) which is claimed 
 by the petition, subject only to the charges and incum- 
 brances set forth in the petition or in the schedule there- 
 to, or that there is no charge or incumbrance affecting, 
 the land ; that the deeds and evidences of title which he 
 produces, and of which a list is contained in the Schedule 
 produced under the precedina; section, are all the title 
 deedi and evidences of title relating to the land that are 
 in his possession or power, and that he is not aware of 
 the existence of any claim adverse to or inconsistent with 
 his own to any part of the land or to any interest therein, 
 or if he is aware of such adverse claim, he shall set forth 
 every such adverse claim, and shall depose that he is not 
 aware of any except what he sets forth ; and the affida- 
 vit or deposition shall also set forth whether any one is 
 in possession of the land, and under what claim, right or 
 title ; and shall state that to the best of the deponent's 
 knowledge, information and belief, the said affidavit or 
 deposition, and the other papers produced therewith, 
 fully and fairly disclose all facts material to the title 
 claimed by the Petitioner, and all contracts and dealings 
 which affect the same or any part thereof, or give any 
 right as against the applicant. 
 
 If there is more than one petitioner, all should join in the affidavit,. or 
 some reason be assigned why they do not. 
 
 VII. This affidavit or deposition may, in a proper case, 
 be dispensed with, or may be made by some other per- 
 
MIL Sc^JLRi^o^ <^trt.^ A<.^^ ^V^^-^/^t.//. 
 
QUIETING TITLES ACT. 83 
 
 son instead of the person whose title is to be investigated, 
 or an affidavit or deposition as to part may be made by 
 the one, and as to part by another, at the discretion of 
 the Judge to whom the application is made ; and in such 
 case, the affidavit shall be modified accordingly. 
 
 Bee aections 26 & S2 as to the powers of a Eeferee. 
 
 VIII. The certificate of the Counsel or Solicitor shall 
 state to the effect, that he has investigated the title and 
 believes the party to be the owner of the estate which 
 the petition claims in the land in question, subject only 
 (if such be the case) to any charges or incumbrances 
 that may be set forth in the Schedule to the petition ; 
 or that he so believes, subject to any condition, qualifi- 
 cation or exemption to be set forth in the certificate), 
 and that he has conferred with the deponent on the sub- 
 ject of the various matters set forth in the affidavit or 
 deposition referred to in the preceding two sections, and 
 believes the affidavit or deposition to be true. 
 
 IX. The Judge in investigating the title may receive 
 and act upon any evidence that is now received by any 
 of the Courts on a question of title ; and any evidence 
 which the practice of English Conveyancers authorizes 
 to be received on an investigation of a title out of Court ; 
 or any other evidence, whether the same be or be not 
 receivable or sufficient in point of strict law, or according 
 to the practice of the English Conveyancers, provided the 
 same satisfies the Judge of the truth of the facts intended 
 to be made out thereby. 
 
 Ab a general rule the evidence should include not only what a pur- 
 chaser's solicitor would satisfy himself of by search and enquiry accord- 
 ing to the rules laid down by Oonveyancers, but also what is necessary 
 for a vendor to produce to a purchaser on a strict investigation of title. 
 Higher evidence is necessary than such as would merely prevail in eject- 
 ment. There are erroneous judgments upon defective or unsound evi- 
 dence which may be cured by another ejectment ; but if the doubts upon. 
 
84 QUIETING TITLES ACT. 
 
 a title should after completion ripen into defects, the purchaser may 
 find it impossible to regain the position which he held before the con- 
 tract. Thus a seven years' absence without tidings, though it prevails 
 as evidence of death in ejectment, is clearly insuflScient between vendor 
 and purchaser, that the title is good against all the world, and not 
 merely sufiScient to prevail against certain contending parties. 
 
 A vendor may therefore be required to furnish evidence which would 
 be elicited by adverse proceedings, to prove or disprove facts, which, if 
 he were a party litigant, it would be the business of his opponent to 
 negative or (Stablish. 
 
 Where there is any doubt whether some person other than the peti- 
 tioner may not be interested in the property, notice should be given ; and 
 the same should be done where the title is not a clear paper title, proved 
 by the production of the original deeds. 
 
 If the purchaser's title rests on the Statute of Limitations, notice 
 should be given to the person said to be barred, as in various ways, as 
 by acknowledgment of title, the effect of the statute may be defeated. 
 
 So where secondary evidence is given by production of a memorial and 
 afBdavit of execution, if the memorial is not in full and not signed by the 
 grantor, notice should be given to the grantee. 
 
 In the case of a title derived under a sale for taxes, the person who but 
 for the sale would be the owner, should have notice of the proceedings, 
 and as a general rule, where the registry shews a conveyance from a 
 person, through whom the petitioner does not claim, and who on registry 
 has no apparent title, notice should be given to the grantee. 
 
 The Eeferee must, howevei, in giving notice, exercise a discretion, to 
 avoid, on the one hand, doing injustice to some person probably inter- 
 ested, and on the other hand, putting the petitioner to unnecessary 
 expense. 
 
 The Referee has the same powers as a Judge, see sees. 25 & 62. 
 
 X. The proofs required may be by, or in the form of, 
 affidavits or certificates ; or may be given viva voce; or 
 may be in any other manner or form that mider the cir- 
 cumstances of the case is satisfactory to the Judge in 
 regard to the matters to which the same relate. 
 
 Frequently title deeds are lost or destroyed, and the party claiming 
 under them is desirous of giving secondary evidence of their contents, 
 and in such a case, before this secondary evidence can be received, evi- 
 dence of search in the proper quarter and proof of their destruction must 
 be given. It is always important, and sometimes essential, to shew that 
 possession has gone with the deeds. 
 
QUIETING TITLES ACT. 85 
 
 Where the patent is not produced, an exemplification or a certified 
 copy must be got. 
 
 XI. If the Judge is not satisfied with the evidence or 
 title produced in the first instance, he shall give a rea- 
 sonable opportunity of producing further evidence, or 
 of removing defects in the evidence produced. 
 
 XII. Before giving a certificate or conveyance under 
 this Act, the Judge shkll direct to be published in the 
 Canada Gazette, and if he sees fit in any other newspa- 
 per or newspapers, and in such form and for such period 
 or periods as the Judge thinks expedient, a notice either 
 of the application being made, or of the order or decision 
 of the Judge thereon ; and the certificate or conveyance 
 shall not be signed or executed until after the expiration 
 of at least four weeks from the first publication of such 
 notice, or such other period as the Judge may appoint. 
 
 XIII. When the Judge is satisfied respecting the title, 
 and considers that the certificate of title can safely be 
 granted without any other notice of application than the 
 published notice so required, he shall grant the certifi- 
 cate accordingly. 
 
 Where a Referee finds in farour of a title acquired by adverse posses- 
 sion, against the legal paper title, his certificate should shew of what 
 portion of the lot the claimant has been in possession ; as by occupation 
 of one or more acres of a wild lot of land, a party will not acquire title 
 to the whole lot, but only to so much as he is in actual possession of, 
 Low V. Morrison, 14 Gr. 192. 
 
 As to the duty of the Referee, see Ord. 503, 504. 
 
 XIV. In case of there appearing to exist any claim ad- 
 verse to or inconsisent with that of the Petitioner to or 
 in respect of any part of the land, the Judge shall direct 
 such notice as he deems necessary to be mailed to or 
 served on the adverse claimant, his solicitor, attorney, 
 or agent. 
 
 The word Judge inoludes Referee. 
 
86 QUIETING TITLES ACT. 
 
 XV. In all cases he may require from time to time 
 any further publication to take place, or any other notice 
 to be mailed or served, that he deems necessary before 
 granting his certificate. 
 
 XVI. Before a certificate of title is granted, satisfactory 
 evidence shall be given by certificate, affidavit or other- 
 wise, that all taxes, rates and assessments, for which 
 the land is liable, have been paid, or that all except those 
 for the current year have been paid. 
 
 XVII. Every claim of title under this Act shall be pre- 
 sumed to be subject to the following exceptions and 
 qualifications, unless the petition for investigation ex- 
 pressly alleges the contrary : 
 
 1. The reservations (if any) contained in the original 
 grant from the Crown ; 
 
 2. Any municipal charges, rates or assessments there- 
 tofore imposed for local improvements, and not yet due 
 and payable ; 
 
 3. Any title or lien which, by possession or improve- 
 ment or other means, the owner or any person interested 
 in any adjoining land has acquired to or in respect of the 
 land mentioned in the certificate ; 
 
 4. Any lease or agreement for a lease, for a period yet 
 to run, of not exceeding three years, where there is actual 
 occupation under the same. 
 
 XVIII. But if the applicant desires- the certificate to 
 declare the title to be free from the said particulars, or 
 any of them, his petition shall so state, and the investiga- 
 tion shall proceed accordingly. 
 
 XIX. Any person having an adverse claim, or a claim 
 not recognized in the applicant's petition, may at any 
 
QUIETING TITLES ACT. 87 
 
 time before the certificate of title is granted, file and 
 serve on the applicant, his solicitor or agent, a short 
 statement of his claim, which may be in the form set 
 forth in Schedule C. 
 
 XX. This claim shall be verified by an affidavit to be 
 filed therewith. 
 
 XXI. In case of a contest, the Judge may either decide 
 the question of title on the evidence before him, or may 
 refer the same or any matter involved therein to the full 
 Court, or to any mode of investigation which is usual in 
 other cases, or which he may deem expedient, and may 
 defer granting the certificate until afterwards, according 
 as the circumstances of each case render just or expe- 
 dient. 
 
 Where the contestant having filed his claim rerified by affldavit, and 
 complied with the requirements of sections 19 & 20, does not take an 
 appointment to proceed thereon, the petitioner ought to obtain a warrant 
 from the Referee, on the return of which the Referee will regulate tha 
 course of proceeding and appoint a time for the claimant to proceed with 
 the consideration of his title, and for the contestant to bring in and pro- 
 ceed upon his objections. 
 
 At the time appointed the necessary evidence is to be adduced and the 
 questions at issue argued. 
 
 XXII. The Judge may, at any stage of the cause, order 
 security for costs to be given by the applicant for a cer- 
 tificate, or by any person making any adverse claim. 
 
 A contestant, served with notice, will not be prevented from asserting 
 his rights until payment of costs of proceedings instituted by him against 
 the claimant, in respect of the property in question, ordered to be paid 
 ■by the contestant. Shepherd v. Hayball, 13 Gr. 681. 
 
 A Referee has the same power. 
 
 XXIII. The Judge may order costs either as between 
 palrty and party, or as between solicitor and client, to be 
 paid by or to any person, party to any proceeding under 
 
88 QUIETING TIT1.es ACT. 
 
 this Act, and may give directions as to the fund out^ of 
 ■which any costs shall be paid. 
 
 See sees. 25 & b2, as to the powers of the Referee. 
 
 Costs do not follow as a matter of course on proceedings under this 
 Act, Low V. Morrison, 14 Gr. 192; where a party having acquired title 
 by adverse possession, institutes prtioeedings to quiet his title, he must 
 establish his right at his own expense ; and although such adverse title 
 is established, he may be made to pay the costs of an unsuccessful con- 
 testant. Ibid. 
 
 XXIV. The Petitioner may by leave of the Judge 
 withdraw his application at any time before final ad- 
 judication, on payment of all costs incurred in the inves- 
 tigation either by himself or by any adverse claimant. 
 
 XXV. With a view of expediting investigations, and 
 subject to any general orders in this behalf, the Judge, 
 if he sees fit, may refer any petition presented under this 
 Act to the Master or a Deputy Master or any other officer 
 of the said Court, or to any Counsel named by the Judge, 
 and in such case the referee shall proceed as the Judge 
 himself should do under this Act, had the reference not 
 been made, and shall have the same powers. 
 
 See Ord. 494, for the oflBcers to whom petitioners may be referred. 
 
 XXVI. The Judge may also refer any title to counsel 
 named by the Judge, for a preliminary report or exam- 
 ination, and may call for the assistance of counsel in 
 any other way and for [any other purpose that may tend 
 to the despatch of business under this Act. 
 
 XXVII. The Judge may give one Certificate of title, 
 comprising all the land mentioned in the Petition, or 
 may give separate Certificates as to the title of separate 
 parts of the land. 
 
 XXVIII. The certificate of title may be in the form 
 contained in Schedule D to this Act, and shall be under 
 
Q0IETING TITLES ACT. ' 89 
 
 the seal of the Court, and shall be signed by one of the 
 Judges and by the Registrar of the Court, and the same 
 and the Schedule (if any) thereto, or a duplicate or coun- 
 terpart of the. same, shall be registered in full, both in 
 the Court of Chancery and in the Books of the Registry 
 Office of the County where the land lies, without any 
 further proof thereof. 
 
 XXIX. A memorandum or certificate of the registra- 
 tion may be endorsed on the certificate of title or on any 
 counterpart or certified copy thereof thus : — 
 
 " Registered in Chancery, 186 , Book 
 
 , Page , A. G. Registrar. 
 
 Registered in the Registry Office for the County of 
 , Book , Page , (Date) Registrar," 
 
 €ind a memorandum or certificate so signed shall be 
 evidence of the registration mentioned therein. 
 
 XXX. The certificate of title when so sealed, signed 
 and registered, shall be conclusive at law and in equity, 
 and the title therein mentioned shall be deemed absolute 
 and indefeasible, from the day of the date of the certifi- 
 cate, as regards Her Majesty and all persons whatever, 
 subject only to any charges or incumbrances, exceptions 
 or qualifications mentioned therein, or in the Schedule 
 thereto, and shall be conclusive evidence that every ap- 
 plication, notice, publication, proceedings, consent and 
 act whatsoever, which ought to have been made given 
 and done previously to the granting of the certificate, 
 has been made, given and done by the proper parties. 
 
 XXXI. After a certificate of title is duly registered, a 
 copy of the certi ficate,T)urporting to be signed and certified 
 as such copy, by the Registrar in Chancery, or by the Re. 
 gistrar for the County in which the land lies, shall be 
 admissible evidence of the certificate for all purposes 
 
90 QUIETING TITLES ACT. 
 
 whatsoever, without further evidence of such copy, and 
 without accounting for the non-production of the cer- 
 tificate. 
 
 XXXII. In case of a Chancery sale, the Court of Chan. 
 eery, if it thinks fit, may investigate the title with a view 
 to granting an indefeasible title, and in that case, a con- 
 veyance executed to the purchaser under the seal of the 
 Court and purporting to bs under the authority of this 
 Act, shall have the same conclusive effect as a certificate. 
 
 XXXIII. The conveyance may be in the form set forth 
 in Schedule E to this Act. 
 
 XXXIV. Where a decree is made for the specific per- 
 formance of a contract for the sale of an estate, and it is 
 part of the contract that the vendor shall have an indefea- 
 sible title, the Court shall make the like investigation, and 
 the conveyance may be in the form set forth in the same 
 Schedule E. 
 
 XXXV. In case any person domiciledin Upper Canada, 
 or claiming any real estate in Upper Canada, desires to 
 establish, not his title to some specific property, but gene- 
 rally that he is the legitimate child of his parents, or that 
 the marriage of his father and mother, or of his grand- 
 father and grandmother, was a valid marriage, or that 
 his own marriage was a valid marriage, or that he is the 
 heir, or one of the co-heirs of any person deceased, or 
 that he is a natural born subject of Her Majesty, he may, 
 if the said Court thinks fit, have any of the said matters 
 judicially investigated and declared. 
 
 XXXVI. The application may be by a short petition 
 stating the object of the applicatiom 
 
 XXXVII. The petition shall be supported by an affidavit 
 •of the applicant verifying the statements of the petition, 
 
QUIETI.VG TITLES ACT. "^ 
 
 and stating furtlier that his claim is not disputed or ques- 
 tioned by any person ; or if his claim is to his knowledge 
 disputed or questioned, he shall set forth the facts in re- 
 lation to such dispute or question, and shall depose that 
 he is not aware of any dispute or question except what 
 he has set forth, and he shall state in the afSdavit such 
 other facts as may satisfy the Court of the propriety of 
 proceeding with the investigation. 
 
 XXXVIII. The investigation shall be made by the same 
 judicial authority, and in the same manner, and on the 
 same evidence, and the same publication or other notice 
 shall be required, and the same proceedings generally 
 shall be had, and the certificate granted on such investi- 
 gation shall be registered in the same way, and may be 
 proved by the same evidence, as nearly as may be re- 
 spectively, as in cases under the first section of this Act. 
 
 XXXIX. This certificate when registered shall be con- 
 clusive and indefeasible in favor of the party on whose ap- 
 plication the same was granted, and all persons claiming 
 by, from, through or under him, and shall be primd facie 
 evidence in favor of all other persons, and against aU 
 persons of the truth of the fact therein declared. 
 
 XL. A separate book shall be kept in Chancery for 
 the registering of these and other certificates of title, and 
 conveyances given under this Act, and the certificates 
 and conveyances registered therein shall be numbered 
 jfl order, and convenient indexes to the book shall be 
 kept in such form as the Court from time to time directs. 
 
 XLI. In case any person who, if not under disability, 
 might have made any application, given any consent, or 
 done any act, or been party to any proceeding under this 
 Act, is a minor, an idiot or a lunatic, the guardian of the 
 minor, or committee of the estate of an idiot or lunatic, 
 may make such application, give snch consent, do such 
 
92 QUIETING TITLES A<2T. 
 
 act and be party to such proceeding as such person might, 
 if free from disability, have made, given, done or been 
 party to, and shall otherwise represent such person for 
 the purposes of this Act ; and if the minor has no guar- 
 dian, or the idiot or lunatic no committee of his estate, 
 the Court or Judge may appoint a person with like 
 power to act for the minor, idiot or lunatic ; but a mar- 1 
 ried woman shall, for the purposes of this Act, be deemed I 
 a feme-sole. 6 J'lOe^u^'^i- /90- 
 
 XLII. After a certificate is granted in regard to any of 
 the matters investigated under this Act, any party ag- 
 grieved thereby may, on petition, and after satisfactorily 
 accounting for his delay, have the title or claim re-inves- 
 tigated on such terms as may be just. 
 
 XLIII. But no proceeding on such petition shall affect 
 the title of any person who, in the meantime, and after 
 the registration of the certificate, shall have acquired, by 
 sale, mortgage or contract, for valuable consideration, 
 any estate or interest in the land specified in the certifi- 
 cate of title ; or (in case the certificate was under the 
 thirty-fifth section of this Act,) in any land or other pro- 
 perty, the title to which was derived from, through or 
 under the person named in the certificate, in the char- 
 acter which is thereby declared to belong to him. 
 
 XLI V. Proceedings under this Act shall not abate or be 
 suspended by any death or transmission or change of in- 
 terest, but in any such event the Court or Judge may 
 require notices to be given to persons becoming interested, 
 or may make any order for discontinuing, or suspending, 
 or carrying on the proceedings, or otherwise in relation 
 thereto, as under the circumstances may be just. 
 
 XLV. No petition, order, affidavit, certificate, registra- 
 tion or other proceeding under this Act shall be invalid 
 by reason of any informality or technical irregularity 
 
%IIL t:.M^^^,^ o^.^ Pnc^i^ -e^A-^X^^ ^7^ 
 
QUIETING TITLES ACT. 93 
 
 therein, or of any mistake not affecting the substantial 
 justice of the proceeding. 
 
 XLVI. - An appeal ohall lie from any urJei. ui deeiHiun 
 • of g Judge under thia Act tu ihu full CourL, aud from lire 
 fall Conrt to the Court of Erro r and Appealb, dh in the 
 nntr nf Orflnr P ) D r nrprn Tliilfi nnri Tnrljmrnti, in n n ifi 
 
 An appeal to a Judge lies from the order of the Referee. 
 
 XLVII. The foregoing provisions of this Act shall be so 
 construed and carried out, as to facilitate, as much as 
 possible, the obtaining of indefeasible titles by the owners 
 of estates in land, through the simplest machinery, at the 
 smallest expense, and in the shortest time, consistent 
 with reasonable prudence in reference to the rights or 
 claims of other persons. 
 
 XLVIII. If in the course of any proceeding under this 
 Act, any person acting either as principal or agent, shall, 
 knowingly, and with intent to deceive, make, or assist or 
 join in or be privy to the making of, any material false 
 statement or representation, or suppress, conceal or assist 
 or join in or be privy to the suppressing, withholding or 
 concealing from the Court any material document, fact 
 or matter of information, every person so acting shall be 
 deemed to be guilty of a misdemeanor, arid on convic- 
 tion shall be liable to be imprisoned in the Provincial 
 Penitentiary for a term not exceeding three years, and 
 not less than t-\iv'o years, or to be imprisoned in any 
 other prison or place of confinement for any term less^ 
 than two years, and in the latter case with or with- 
 out hard labor, or to be fined such sum as the Court 
 by which he is convicted shall award; any order or 
 declaration of title obtained by means of such fraud or 
 falsehood, shall be null and void for or against all persons 
 other than a purchaser for valuable consideration with- 
 out notice. 
 
QUIETING TITLES ACT. 
 
 XLIX. 'If in the course of any proceeding before ihe 
 Court, under this Act, any person shall fraudulently forge 
 or alter, or assist in forging or altering, any certificate or 
 other docament relating to such land or the title thereto, 
 or shall fraudulently offer, utter, dispose of or put off any 
 such certificate or other document, knowing the same to 
 be forged or altered, such person shall be guilty of felony, 
 and upon conviction shall be liable, at the discretion of 
 the Court by which he is convicted, to be imprisoned in 
 the Provincial Penitentiary for life, or for any term not 
 less than three years, or to be imprisoned in any other 
 prison or place of confinement for any term not exceed 
 ing two years, and in the latter case with or without 
 b'ard labor. 
 
 L. No proceeding or conviction for any act hereby 
 declared to be a misdemeanor, shall affect any remedy 
 which any person aggrieved by such act may be entitled 
 to, either at law or in equity, against the person who has 
 committed such act. 
 
 LI. Nothing in this Act shall entitle any person to 
 refuse to answer any question or interrogatory in any 
 civil proceeding in any Court of law or equity, but no 
 answer to any such question or interrogatory shall be 
 admissable in evidence against such person in any civil 
 proceeding. 
 
 LII. The said Court may, from time to time, make 
 general orders for referring all or any applications under 
 this Act, to any mdster, deputy master or other officer of 
 the Court, or to any Counsel or other person appointed 
 by the Court in that behalf, and to regulate the fees to 
 be paid on such reference, and the referee shall have the 
 same powers as a Judge within the limits prescribed by 
 such general orders ; and the Court may also, from time 
 to time, make other general orders for the purposes of this 
 Act, and for regulating the practice under the same ; and 
 
QUIETING TITLES ACT. 95 
 
 all general orders made in pursuance of this section may 
 from time to time be rescinded or altered by the said 
 Court. 
 
 SCHEDULE A. 
 
 IN CHANCER¥. 
 
 Form of Petition for the Investigation, Sect. 3. 
 
 In the matter of {the East half of lot No. in the 
 
 Concession in the Township of or as the case 
 
 may be, describing the property very biiefly.) 
 
 To the Honorable, the Judges of the Court of Chancery. 
 
 The Petition of 
 
 Sheweth, — 
 
 That your Petitioner is absolute owner in fee simple 
 in possession (or as the case may be,) of the following 
 property [describing it.) 
 
 That there is no charge or other incumbrance affecting 
 your Petitioner's title to the said land, (except, fyc, or, — 
 that your Petitioner's title is subject only to the charges 
 or incumbrances in the schedule hereto mentioned, and 
 that the only persons having or claiming any charge, in- 
 cumbrance, estate, right or interest in the said land are 
 set forth in the schedule hereto annexed, and that the 
 charge, incumbrance, estate, right or interest belonging 
 to or claimed by each is therein set forth.) Your Peti- 
 tioner therefore prays that his title to the said land may 
 be investigated and declared under the Act for quieting 
 titles to real estate in Upper Canada. 
 
 (Signed,) A. B. 
 
 or 
 C. D., Solicitor for A. B. 
 
96 QUIETING TITIiES ACT. 
 
 SCHEDULE B. 
 
 Form of Registrar's Certificate of an Application under 
 this Act, Sect. 4. 
 
 I certify that an application has been made by 
 to the Court of Chancery, under the Act for quieting 
 titles to real estate in Upper Canada, for a certificate of 
 title to the following lands [stating them.] 
 
 ALEX. GRANT, 
 
 Registrar. 
 
 SCHEDULE C. 
 
 Form of an Adverse Claimant's Statement, Sec. 19. 
 
 In the matter of, &c., (as in petition.) 
 
 A. B. of, &c., claims to be the owner of the said land, 
 &c., &c., {stating very briefly the nature of the claim and 
 the grounds q/ it.) Dated this day of 186 . 
 
 (Signed,) A. B 
 
 or 
 C. D., Solicitor for A. B. 
 
 SCHEDULE D. 
 
 Form of Chancery Certificate of Title, Sect. 28. 
 
 No. 
 
 These are to certify under the authority of the Act for 
 
 quieting titles to real estate in Upper Canada, that A. B. 
 
 is the legal and beneficial owner in fee simple 
 
 in possession {or as the case may be,) of all, &c., [here 
 
QUIETING TITLES ACT. 97 
 
 describe the property,] subject to the reservations men- 
 tioned in the seventeenth section of the said Act and 
 therein numbered respectively one, two, three and four, 
 {or as the case may be,) and to (specifying either by 
 reference to a schedule or otherwise any of the other 
 charges or incumbrances, exceptions or qualifications to 
 which the title of A. B. is subject) but free from all other 
 rights, interests, claims and demands whatever. Or 
 that [^stating the facts found and declared under the thirty- 
 Jifth Section of this Act, and stating on whose applica- 
 tion the same are declared.] 
 
 In Witness whereof [Chancellor or one of the 
 
 Vice Chancellor s,]oi the said Court, has hereunto set his 
 hand, and the seal of the said Court has been hereunto 
 affixed, this day of 
 
 A Grant, Registrar. CD. L. S. 
 
 SCHEDULE E. 
 Form of Chancery Deed, Sees. 33 and 34. 
 
 No.. 
 
 The Court of Chancery for Upper Canada, under the 
 authority of the Act for quieting titles to real estate in 
 Upper Canada, doth hereby grant unto A. B., &c., [here 
 describe the premises sold] , to hold the same unto the said 
 his heirs and assigns forever [as the case 
 may be], subject to [here specify as in the case of a 
 Chancery certificate of title.] 
 
 In Witness whereof [ Chancellor, or one of the 
 
 Vice- Chancellors of the said Court,] has hereunto set 
 his hand, and the seal of the said Court has been hereto 
 set, this day of , in the year 
 
 of Our Lord, 
 
 A. Grant, Registrar. C. D. L. S. 
 
98 PKOPEBTV ANOP TRUSTS ACT. 
 
 29TH VIC. CAP. XXVIII.— AN ACT TO AMEND 
 THE LAW OF PROPERTY AND TRUSTS IN 
 UPPER CANADA. 
 
 HER Majesty, by and with the advice and consent 
 of the Legislative Council and Assembly of 
 Canada, enacts as follows : 
 
 I. Where any license to do any act which, without 
 such license,, would create a forfeiture, or give a right to 
 re-enter, under a condition 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 lessee or his assigns, every such license 
 shall, unless otherwise expressed, 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 assignment, under-lease, or other 
 matter thereby specifically authorised to be done, but 
 not so as to prevent any proceeding for any subsequent 
 breach (unless otherwise specified in such license) ; 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 subse- 
 quent breach of covenant or condition, assignment, 
 under-lease, or other matter not specifically authorised 
 or made dispunishable by such license, in the same man- 
 ner as if no such license had been given and the condi- 
 tion or right of re-entry shall be and remain in all 
 respects as if such license had not been given, except in- 
 respect of the particular matter authorised to be done. 
 
 II. Where in any lease heretofore granted or to be 
 hereafter granted, there is or shall be a power or condi- 
 tion of re-entry on assigning or underletting or doing any 
 other specified act without license, and a license at any 
 time after the passing of this Act shall be given to on& 
 
PROPERTY AND TRUSTS ACT. 99 
 
 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 license, 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 pro- 
 perty such license shall not operate to destroy or ex- 
 tinguish the right of re-entry in case of any breach of 
 the covenant or condition by the co-lessee or co-lqssees 
 or owner or owners of the other shares or interests in the 
 property, or by the lessee or owner of the rest of the pro- 
 perty, (as the case may be), over or in respect of such 
 shares or interests or remaining property, but such right 
 of re-entry shall remain in full force over or in respect of 
 the shares or interests or property not the subject of such 
 license. 
 
 By Dumpor'a case, 4 Co. Eep. 119 ; 1 Smith's L. C, it was decided that a 
 condition of re-entry was in law indivisible ; so that a license to do the 
 act intended to be restricted, though in a particular instance, destroyed 
 the condition altogether. 
 
 III. Where any actual waiver of the benefit of any 
 covenant or condition 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 in- 
 stance 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 such covenant 
 or condition, unless an intention to that eifect shall appear. 
 
 IV, 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 be- 
 longing to him, have and be entitled to the benefit of all 
 
100 PBOPERTY AND TRUSTS ACT. 
 
 conditions or powers of re-entry for non-payment 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 reservation in respect of the 
 apportioned rent or other reservation allotted or belonging 
 to him. 
 
 This section does away with the second resolution in Knight's case, 5 
 Eep. 65 ; see Roberts v. Snell, 1 M. & Gr. 611 ; Blies v. Collins, 4 Mad. 
 229 ; 5 Barn & Aid. 876. 
 
 V. The Court of Chancery shall have power to relieve 
 against a forfeiture for breach of a covenant or condition 
 to insure against loss or damage by fire, where no loss 
 or damage by fire has happened, and the breach has, in 
 the opinion of the Court, been committed through acci- 
 dent 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 conformity with the 
 covenant to insure, upon such terms as to the Court may 
 seem fit. 
 
 This section has been held to apply to a breach committed since the 
 passing of the Act, though the lease in which the covenant was contained 
 was executed before that time, Page v. Bennett, 2 Giff. 117; 6 Jur. N. 
 S. 419. 
 
 By the corresponding English statute the Court has no power to 
 relieve the same person more than once in respect of the same covenant 
 or condition. Before this statute, Courts of Equity could not relieve 
 against such forfeiture for not insuring, Reynolds v. Pitt, 19 Ves. 134 ; 
 2 Price, 212 n. ; Gregory v. Wilson, 9 Ha. 683 ; and a forfeiture would be 
 committed though the prenLiums had been paid before action and the 
 policy was then on foot, Doe d. Pitt v. Shewin, Z Camp. 134 ; Doe v. 
 Ulph, 13 Q. B. 204 ; Wilson v. Wilson, 14 0. B. 616 ; and the covenant 
 to insure would be broken by the most trifling departure from its terms, 
 Haven v. Middleton, 10 Ha. 641; Penniall v. Harbor ne, 11 Q. B. 368; 
 though committed by mere mistake, Rolfe v. Harris, 2 Price, 206, n. ; 
 Greene v. Bridges, 4 Sim. 96. 
 
 VI. 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. 
 
PROPERTY AND TRUSTS ACT. . 101 
 
 VII. The person entitled to the benefit of a covenant on' 
 the part of a lessee or mortgagor to insure against loss 
 or damage by fire, shall, on loss or damage by fire hap- 
 pening, have the same advantage from any then subsist-- 
 ing insurance relative to the building or other property^ 
 covenanted to be insured, effected by the lessee or mort- 
 gagor in respect 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. 
 
 VIII. Where on the bona fide purchase, after the pass- 
 ing of this Act, of a leasehold interest under a lease con- 
 taining a convenant on the part of the lessee to insure 
 against loss or damage by fire, the purchaser is furnished 
 with the written receipt of the person entitled to receive the 
 rent, or his agent, for the last payment of the rent accrued 
 due before the completion of the purchase, and there is 
 subsisting at the time of the completion of the purchase, 
 an insurance in conformity with the covenant, the pur- 
 chaser or any person claiming under him, shall not be 
 subject to any liability by way of forfeiture or damage 
 or otherwise, in respect of any breach of the covenant 
 committed at any time before the completion of the pur- 
 chase, 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. 
 
 As to what constitutes notice, see notes to Le Neve v. Le Neve, 2 White 
 & Tndor's L. C. 38. 
 
 IX. The preceding provisions shall be applicable to 
 leases for a term of years absolute, or determinable on a 
 life or lives, or otherwise, and also to a lease for the life 
 
^03 PHOPEKTY AND TH0STS ACT, 
 
 of the lessee or the life or lives of any other person or 
 persons. 
 
 X. The release from a rent-charge of part of the here- 
 ditaments charged therewith shall not extinguish the 
 whole rent-charge, but shall operate only to bar the right 
 to recover any part of the rent-charge out of the heredita- 
 ments released, without prejudice, nevertheless, to the 
 rights of all persons interested in the hereditaments 
 remaining unreleased, and not concurring in or confirm- 
 ing the releases. 
 
 XI. A deed hereafter executed in the presence of, and 
 attested by two or more witnesses in the manner in 
 which deeds are ordinarily executed 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, not- 
 withstanding it shall have been especially required that 
 a deed or instrument in writing, made in exercise of 
 such power, should be executed or attested with some 
 additional 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 exe- 
 cuting and attesting the instrument; and nothing herein 
 contained shall prevent the donor of a power from exe- 
 cuting it conformably to the power, by writing or other- 
 wise, than by an instrument executed and attested as an 
 ordinary deed, and to any such execution of a power, 
 this provision shall not extend. 
 
 See notes to Tollett v. Tollett, 1 White & Tudor's L. C, 184. 
 
 XII. Where, under the power of sale, a bona fide sale 
 
/£. _S<^ Jup^ p . Ma^^cL 1/Si£uU, /f6'Z- 
 
PROPERTY AND TRUSTS ACT. 103 
 
 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 mis- 
 take, be allowed to receive for his own benefit a portion 
 of the purchase money or 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 of 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 principal moneys and in- 
 terest 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 there- 
 upon 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. 
 
 This Beotion is intended to meet the case of CockerM v. Cholmelej, 1 
 R. & M, 418 ; 1 C. A F. 60. 
 
 XIII. Where, by any will which shall come into opera- 
 tion after the passing of this Act, the testator shall have 
 charged his real estate or any specific portion thereof, 
 with the payment of his debts, or with the payment of 
 any legacy or other specific sum of money, and shall t' 
 have devised the estate so charged to any trustee or trus- 
 tees for the whole of his estate or interest therein, and 
 shall not have made any express provision 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, 
 notwithstanding any trusts actually declared by the tes- 
 
104 PROPERTY ANB TRUSTS ACT. 
 
 tator, to raise such debt, 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 repayment as the person 
 or persons executing the same shall think proper. 
 
 The law was in an unsettled state as to the right person to sell under 
 a will where the estate was rested in trustees charged with debts or 
 legacies upon trusts declared by the testator, but without any provision 
 ^or raising the debts or legacies ; or where there was such a charge, but 
 the testator's whole interest was not devised to trustees, see Doe v. 
 Hughes, 6 Ex. 223. ; Robimon v. Lomater, 5 D. M. & G , 272 ; Wrigley v. 
 Sykes, 21 Beav. 337; Cook v. Dawson, 29 Beav. 123. 
 
 Before this statute the cases appear to have decided that where there 
 was a general charge of debts upon real estate, the executors had in 
 equity an implied power to sell it, and they alone could give a valid re- 
 ceipt for the purchase money ; but as they did not take by implication a 
 legal power to sell, and could not convey the legal estate, the persons in 
 whom it was vested must have joined with them in the conveyance, Shaw 
 T. Borrer, 1 Keen, 559; Robinson v. Lowater, 17 Beav. 592; 5 D. M. & 
 G., 272 ; Forbes v. Peatock, 12 Sim., 528 ; Eidsforth v. Armstead, 2 E. & 
 J., 333 ; BaU v. Harris, 4 M. <fe C, 264. 
 
 XIV. The powers conferred by the last section shall ex- 
 tend to all and every person or persons in whom the 
 estate devised shall for the time being be vested by sur- 
 vivorship, 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. 
 
 XV. If any testator who shall have created such a charge 
 as is described in the thirteenth section, shall not have 
 devised the hereditaments charged as aforesaid, in such 
 terms as that his whole estate and interest therein shall 
 become^ vested in any trustee or trustees, the executor or 
 executors for the time being, named in the will, if any> 
 
PROPERTY AND TRUSTS ACT, 105 
 
 shall have the same or the like power of raising the said 
 moneys as is hereinbefore vested in the devisee or de- 
 visees 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 out 
 standing subsisting legal estate. 
 
 XVI Purchasers or mortgagees shall not be bound to 
 inquire whether the powers conferred by sections thir- 
 teen, fourteen and fifteen of this Act, or either of them, 
 shall have been duly and correctly exercised by the per- 
 son or persons acting in virtue thereof. 
 
 XVII. The provisions contained in sections thirteen, 
 fourteen, fifteen and sixteen, shall not in any way prejudice 
 or affect any sale or mortgage already made or hereafter to 
 be made, under or in pursuance of any will coming into 
 operation before the passing of this Act, but the validity 
 of any 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 testa- 
 tor's whole estate and interest charged with debts or 
 legacies ; nor shall they affect the power of any such de- 
 visee or devisees to sell or mortgage as he or they may 
 by law now do. 
 
 XVIII. 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 im- 
 mediate 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 
 
106 PROPERTY AND TRUSTS ACT. 
 
 to the estate and seizin originally vested in the person 
 seized to the uses, and the continued existence in him or 
 elsewhere of any seizin 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 seizin to uses or scintilla juris be deemed 
 to be suspended, or to remain or to subsist in him or else- 
 where. 
 
 XIX. Any person shall have power to assign personal 
 property, now by law assignable, including chattels real, 
 directly to himself and another person or other persons 
 or corporation, by the like means as he might assign the 
 same to another. 
 
 XX. Any seller or mortgagor of land, or of any chat- 
 tels, real or personal, or choses in action, conveyed or 
 assigned to a purchaser or mortgagee, or the solicitor or 
 agent of any such seller or mortgagor, who shall, after the 
 passing of this Act, conceal any settlement, deed, will or 
 other instrument material to the title, or any incum- 
 brance, from the purchaser or mortgagee, or falsify any 
 pedigree upon which the title does or may depend, in or- 
 der 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, or being found guilty, sheill 
 be liable, at the discretion of the Court, to suffer such 
 punishment, by fine or by 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 incumbrance so concealed, or of any claim made 
 by any person under such pedigree, but whose right A^as 
 concealed by the falsification of such pedigree ; and in 
 
/6: s.i.^ 
 
PROPEETT AND TRUSTS ACT. 107 
 
 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 prosecu- 
 tion 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 At- 
 torney-General for Upper Canada, or in case that oflSce 
 be vacant, of Her Majesty's Solicitor-General for Upper 
 Canada ; and no such sanction shall be given without 
 such previous notice of the application for leave to prose- 
 cute, to the person intended to be prosecuted, as the At- 
 torney-General or the Solicitor-General (as the case may 
 be) shall direct ; and no prosecution for concealment 
 shall be sustained unless a written demand of an ab- 
 stract of title was served by or on behalf of the purchaser 
 or mortgagee before the completion of the purchase or 
 mortgage. 
 
 See Drummond v. Tracey, 1 Johns, 608. 
 
 XXI. In the construction of the previous provisions in 
 this Act, the term " land " shall be taken to include all 
 tenements and hereditaments, and any part or share of 
 or estate or interest in any tenements or hereditaments, 
 of what tenure or kind soever ; and 
 
 The term " mortgage " shall be taken to include every 
 instrument by virtue whereof land is in any manner con- 
 veyed, assigned, pledged or charged as security for the 
 repayment of money or money's worth lent, and to be 
 re-conveyed, re-assigned or re-leased 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 
 
108 PROPERTY AND TRUSTS ACT. 
 
 Tlie term " mortgagee " shall be taken to include every 
 person to whom or in whose favor any such conveyance, 
 assignment, pledge or charge as aforesaid is made or 
 transferred. 
 
 XXII. A power of attorney executed by a married wo- 
 man for the sale or conveyance of any real estate of or 
 to which she is seized or entitled in Upper Canada, or 
 authorizing the attorney to execute a deed barring or re- 
 leasing her dower in any lands or hereditaments in Up- 
 per Canada, shall be valid both at law and in equity ; 
 provided, (1) that she be examined and a certificate 
 indorsed on the power of attorney, as required in regard 
 to deeds and conveyances by a married woman, under 
 the Consolidated Statutes of Upper Canada respectively, 
 intituled : An Act respecting Dower, and An Act re- 
 specting the conveyance of Real Estate by Married Wo- 
 men ; and provided (2) that her husband is a party to 
 and executes such power of attorney or the deed or other 
 instrument executed in pursuance thereof, where the 
 power is for the sale or conveyance of her real estate. 
 
 XXIII. In case a power of attorney for the sale or man- 
 agement of real or personal estate, or for any other pur- 
 pose, provides that the same may be exercised in the 
 name and on the behalf of the heirs or devisees, execu- 
 tors or administrators of the person executing the same, 
 or provides by any form of words that the same shall 
 not be revoked by the death of the person executing the 
 same, such provision shall be valid and effectual to all 
 intents and purposes both at law and in equity, accord- 
 ing to the tenor and effect thereof, and subject to such 
 conditions and restrictions, if any, a3 may be therein 
 contained. 
 
 XXIV. Independently of any such special provision in 
 a power of attorney, every payment made and every act 
 
PROPERTY AND TRUSTS ACT. 109 
 
 done under and in pursuance of any power of allomey, 
 or any power, whether in writing or verbal, and whether 
 expressly or impliedly given, or an agency expressly or 
 impliedly created after the death of the person who gave 
 such power or created such agency, or after he has done 
 some act to avoid the power or agency, shall, notwith- 
 standing such death or act last aforesaid, be valid as re- 
 spects every person party to such payment or act, to^ 
 whom the fact of the death, or of the doing of such act 
 as last aforesaid was not known at the time of such pay- 
 ment or act bona fide done as aforesaid, and as respects 
 all claiming under such last mentioned person. 
 
 XXV. Where an executor or administrator, liable as 
 such to the rents, covenants or agreements contained in any 
 lease or agreement for a lease granted or assigned to the 
 testator or intestate whose estate is being administered, 
 shall have satisfied all such liabilities under the said 
 lease, or agreement for a lease, as may have accrued due 
 and been claimed up to the time of the assignment herein- 
 after 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 lessee to be laid out on the property de- 
 mised, 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 pur- 
 chaser thereof, he shall be at liberty to distribute the 
 residuary personal estate of the deceased, to and amongst 
 the parties entitled thereto respectively, without appro- 
 priating 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 re- 
 siduary estate, shall not after having assigned the said 
 lease, or agreement for a lease, and having, where neces- 
 sary, set apart such sufficient fund as aforesaid, be per- 
 
110 PROPEBTY AND TRUSTS ACT. 
 
 sonally liable in respect of any subsequent claim under 
 the said lease, or agreement for a lease ; but nothing 
 herein contained 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 distri- 
 buted. 
 
 This section has been held to be retrospective, Smith v. Smith, 1 Dr. k 
 Sm. 384 ; Be Green, 2 D. P. & J. 121 ; reversing Dodson v. Sammell, 8 W. 
 B. 252, on this point; and see Reilli/ v. Reilly, 34 Beav. 406 ; Bennett v- 
 Lytton, 2 J. (fe H. 155, 158. 
 
 The case of a leasehold assigned to a residuary legatee is not within 
 this section, such legatee not being a purchaser, Dedson v. Sammell, 9 W 
 R. 887. 
 
 Executors acting bona fide, under an order of the Court of Chancery, 
 are protected from liability, and have no need to retain any portion of the 
 assets to indemnify them against possible liability in respect of the tes- 
 tator's covenants, Dean v. Allen, 20 Beav. 1 ; England v. Lord Tredegar, 
 1 L. R. Eq. 344. 
 
 As to setting apart a fund in an . administration suit to meet claims 
 in respect of leaseholds assigned, and as to payment out of each fund 
 with the consent of the lessor, to residuary legatees, see Bunting v. Mar- 
 riott, 9 W. R. 264. 
 
 XXVI. In like manner where an executor or adminis- 
 trator, liable as such, to the rent, covenants or agreements 
 contained in any conveyance on chief rent or rent-charge, 
 (whether any such rent be by limitation 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 administerecj, shall 
 have satisfied all such liabilities under the said convey- 
 ance, or agreement for a conveyance, as may have accrued 
 due and been claimed up to the time of the conveyance 
 hereinafter mentioned, and shall have set apart a suffi- 
 cient 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 
 
PROPERTY AND TRUSTS ACT. Ill 
 
 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 agree- 
 ment for such conveyance 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 per- 
 sonal estate of the deceased, to meet any future liability 
 under the said conveyance, or agreement for a convey- 
 ance ; and the executor or administrator so distributing 
 the residuary estate, shall not, after having made or exe- 
 cuted such conveyance or assignment, and having, where 
 necessary, set apart such sufficient fund as aforesaid, be 
 personally liable in respect of any subsequent claim un- 
 der the said conveyance, or agreement for conveyance ; 
 but nothing herein contained shall pifejudice the right of 
 the grantor, or those claiming under him, to follow the 
 assets of the deceased into the hands of the person or 
 persons to or among whom the said assets may have been 
 distributed. 
 
 XXVII. 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 Chan- 
 cery in an administration suit, for creditors and others to 
 send in to the executor or administrator their claims 
 against the estate of the testator or intestate, such execu- 
 tor or administrator shall, at the expiration of the time 
 named in the said notices, or the last of the eaid notices, 
 lor sending in such claims, be at liberty to distribute the 
 assets of the testator or intestate, or any part thereof, 
 amongst the parties entitled thereto, having regard to the 
 claims of which such executor or 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 
 
112 PROPERTY AND TRUSTS ACT. 
 
 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 con- 
 tained shall prejudice the right of any creditor or claim- 
 ant to follow the assets, or any part thereof, into the hands 
 of the person or persons who may have received the same 
 respectively. 
 
 As to the proceedings m admiaistration suits, and the notices given to 
 creditors and others, see Ord. 468 et seq. 
 
 An executor who has distributed theassetta of the tesiator, after issuing 
 advertisements, and taking the steps pointed out by this section, will 
 have the same protection as if he had administered the estate under a de- 
 cree of the Court; and if he should have retained any legacies as trustee, 
 after appropriating them for the benefit of the cestui que trusts, he will 
 no longer be under any liability qua executor, Glegg v. Rowlaud, 3 L. R, 
 Eq. 368. 
 
 XXVIII. On the administration of the estate of any 
 person dying after the passing of this Act, in case of a defi- 
 ciency of assets, debts due to the Crown, and to the exe- 
 cutor or administrator of the deceased person, and debts to 
 others, including therein respectively debts by judgment, 
 decree or order, and other debts of record, debts by spe- 
 cialty, simple contract debts, and such claims for dama- 
 ges as by statute, are payable in like order of adminis- 
 tration as simple contract debts — shall be paid /)an ^jasju 
 and without any preference or priority of debts of one 
 rank or nature over those of another ; but nothing herein 
 contained shall prejudice any lien existing during the 
 lifetime of the debtor on any of his real or personal es- 
 tate. 
 
 XXIX. In case the executor or administrator gives 
 notice in writing to any creditor or other person of whose 
 claims against the estate such executor or administrator 
 has notice, or to the attorney or agent of such creditor or 
 other person, that the said executor or administrator rejects 
 or disputes such claim, it shall be the duty of the claimant 
 
PROPERTY AND TRUSTS ACT. 113 
 
 to commence his suit in respect of such claim, within 
 six monlhs after such written notice was given, in case 
 the debt, or some part thereof, was due at the time of the 
 notice, or within six months from the time the debt, or 
 some part thereof, falls due, if no part thereof was due at 
 the time of the said notice, and in default the said suit 
 shall be forever barred. 
 
 XXX. After the first day of January, one thousand eight 
 hundred and sixty-six, 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, pos- 
 essed by the legal personal representative of such intes- 
 tate, but within the time within which the same might 
 be brought to recover a legacy, that is to say, within 
 twenty years next after a present right to receive the 
 same, shall have accrued to some person capable 6i giving 
 a discharge for or release of the same, unless in the 
 meantime some part of such estate or share, or some in- 
 terest in respect thereof shall have been accounted for 
 or paid, or some acknowledgement of the right thereto 
 shall have been given in writing, signed by the person 
 accountable for the same, or his agent, to the person en- 
 titled 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 acknowledgement, or 
 the last of such accountings, payments and acknowledge- 
 ments, if more than one was made or given. 
 
 XXXI. Any trustee, executor or administrator shall be 
 at liberty, without the institution of a suit, to apply by pe- 
 tition to any Judge of the Court of Chancery, or by sum- 
 mons upon a written statement to any such Judge in 
 Chambers, for the opinion, advice, or direction of such 
 Judge on any question respecting the management or 
 administration of the trust property or the assets of any 
 testator or intestate ; such petition or statement to be ac- 
 
114 PROPERTY AND TRUSTS ACT, 
 
 companied by a certificate of counsel, to the effect that in 
 his judgment the case stated is a proper one for the opin- 
 ion, advice, or direction of the Judge under this Act, and 
 such application to be served upon, or the hearing there- 
 of to be attended by, all persons interested in such 
 application or such of them as the said Judge shall thipk 
 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 trus- 
 t€'e, executor, or administfator, 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 to any act done in accordance 
 with such opinion, advice or direction as aforesaid, if 
 such trustee, executor or administrator shall have been 
 guilty of any fraud or wilful concealment or misrepre- 
 sentation in obtaining such opinion, advice or direction ; 
 and the costs of such application as aforesaid shall be in 
 the discretion of the Judge to whom the said application 
 shall be made. 
 
 The application under this section should be by petition, Re Dennis, & 
 Jur. N. S. 1388 ; for form of petition, see Re Pelfs Will, 27 Beav. 576 r 
 Re Miles, 27 Beav. 579. 
 
 The Court may make an order on the petition of a cestui que trust, Re 
 Ward, 14 W. E. 96 ; and of one trustee without the concurrence of his 
 co-trustee, Re Muggeridge, Johns. 625. 
 
 It was at one time held that the direction of the Judge as to the par- 
 ties to be seiTcd, should be obtained in the first instance, but this prac- 
 tice has since been disapproved of. Re Green, 8 W. E. 403. 
 
 It is not necessary to serve all parties interested, unless there is a de- 
 ficiency of assetts, Re MocTceti, Johns. 628. 
 
 The Act was not intended to decide nice questions of law, but to pro- 
 cure for trustees at a small expense the assistance of the Court upon 
 points of minor importance arising in the management of the trust. Re 
 Caldwell, 2 Cham. E. 160 ; Re Spiller, 2 L. T. N. S. 71 ; so advice has 
 been given as to investments, Re Lorem, 1 Dr. & Sm. 401 ; or payment 
 of debts, Re Box, 1 H. & M. 552. 
 
PROPERTY AND TRUSTS ACT. 115 
 
 The Court will not on such a petition decide questions of detail wliere 
 affidavits are required, Rt Barrington, 1 J. & H. 142 ; nor questions of 
 difficulty, He Simaon, 1 J. & H. 89 ; and see Marsh v. Attorney General, 
 2 J. <St H. 61 ; nor pronounce an opinion on an hypothetical case, Re 
 Box, 1 H. & M. 552. 
 
 Where questions of construction arise, a suit must be instituted, Re 
 Evam, 30 Beav. 232; Re Lorem, 1 Dr. <fc Sm. 401 ; Re Hooper, 29 Bear. 
 656 ; and see Re Williamt, 1 Cham. E. 372. 
 
 These cases seem to oyerrule cases where questions of validity or con- 
 struction of a bequest have been determined. Re Michell, 28 Bear. 39 ; 
 Re Green, 8 W. R. 403 ; Re Davis, 9 W. R. 134 ; Re Elmore, 6 Jur. N. S. 
 1325 ; Re Jacob, 29 Beav. 402 ; but see Re Peyton's Settlement, 10 W. E. 
 515. 
 
 As a general rule, the costs of an application will be ordered to be 
 paid out of the corpus of the trust property. Re MeVeagh, Seton, 773 ; 
 but where the question was as to the application of income, the costs were 
 given out of the income, Anon, 8 W. R. 333. 
 
 XXXI. Every deed, will, or other document creating a 
 trust, either expressly or by implication, shall, without 
 prejudice to the clauses actually contained therein, be 
 deemed to contain a clause in the words or to the effect 
 following, that is to say : — " That the trustees or trustee, 
 " for the time being, of the said deed, will or other in- 
 " strument, shall be respectively chargeable only for such 
 " moneys, stocks, funds and securities as they shall 
 " respectively actually receive, notwithstanding their 
 " respectively signing any receipt for the sake of confor- 
 " mity 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 moneys or securities 
 " may be deposited ; nor for the insufficiency or defi- 
 " ciency 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 prernises all expenses incurred in or about the 
 
116 PROPF.RTY AND TRUSTS ACT. 
 
 " execution of the trusts or powers of the said deed, will 
 " or other instrument." 
 
 XXXIII. When any person shall, after the thirty-first of 
 December, one thousand eight hundred and sixty-five, 
 die seized of or entitled to any estate or interest in any 
 land or other hereditaments, which shall at the time of 
 his death be charged with the payment of any sum or 
 sums of money by way of mortgage, and such person 
 shall not, by his will or deed, or other document, have 
 signified any contrary or other intention, the heir or de- 
 visee to whom such land or hereditaments shall descend 
 or be devised, shall not be entitled to have the mortgage 
 debt discharged or satisfied out of the personal estate, or 
 any other real estate of such person, but the lands or 
 hereditaments so charged shall, as between the different 
 persons claiming through or under the deceased person, 
 be primarily liable to the payment of all mortgage debts 
 with which the same shall be charged, every part thereof, 
 according to its value, bearing a proportionate part of the 
 mortgage debts charged on the whole thereof; Provided 
 always, that nothing herein contained shall affect or 
 diminish any right of the mortgagee on such lands or 
 hereditaments to obtain full payment or satisfaction of 
 his mortgage debts, either out of the personal estate of 
 the person so dying as aforesaid or otherwise ; Provided 
 also, that nothing herein contained shall affect the rights 
 of any person claiming under or by virtue of any will, 
 deed, or document already made or to be made before 
 the first day of January, one thousand eight hundred and 
 sixty-six. 
 
HEARING OF CAUSES ACT. Ill 
 
 29th & 30th VIC, CAP. 39.— AN ACT RE- 
 SPECTING THE HEARING OF CAUSES IM 
 THE COURT OF CHANCERY FOR UPPER 
 CANADA. 
 
 HER Majesty, by and with the advice and consent 
 of the Legislative Council and Assembly of 
 Canada, enacts as follows : 
 
 I. Any sitting of the Court of Chancery for Upper 
 Canada, for the hearing of causes, may be held by any 
 one of Her Majesty's Counsel learned in the law, of the 
 Upper Canada Bar, upon such Counsel being 'required 
 by the Chancellor or one of the Vice-Chancellors to at- 
 tend for the purpose ; and such Counsel, while holding 
 such sitting, shall possess, exercise and enjoy all the 
 powers and authorities of a Judge of the said Court. 
 
 II. The Counsel may give his decision either during 
 the sitting or afterwards, and in case any party is dis- 
 satisfied with the decision of such Counsel, he shall be 
 entitled to have the same reviewed by the said Court in 
 the same manner and within the same time as in the 
 case of a decision by a Judge of the said Court ; and the 
 order made thereupon shall be applicable to the Court of 
 Error and Appeal in the same manner as other decrees 
 and orders of the said Court of Chancery. 
 
 See Orders 192, 193. 
 
 III. The said Court shall have the power from time to 
 time to make General Orders for regulating the practice 
 under this Act, and to suspend, repeal, vary or revive 
 such Orders as to the said Court may seem fit. 
 
 END OF PART I. 
 
118 ORDERS 1 — 4. 
 
 PART II , 
 
 ORDERS IN CHANCERY. 
 
 PRELIMINARY. 
 
 The Judges of the Court of Chancery for Upper Can- 
 ada, do hereby, in pursuance and execution of all powers 
 and authorities eiiabling them in that behalf, order and 
 direct in manner following : — 
 
 1. From and after the first day of July, 1868, all the 
 General Orders of this Court which have been at any 
 time heretofore made, shall be abrogated ; and in lieu 
 thereof, the Orders hereinafter expressed shall constitute 
 
 the General Orders of the Court. 
 
 ■J 
 
 2. The abrogation hereinbefore made shall not affect 
 any practice of the Court, or any practice or usage of, in, 
 or connected with any of the offices of the Court, or the 
 officers thereof, which originated in, or was sanctioned 
 by, any of the Orders hereby abrogated, except so far as 
 the same may be inconsistent with anything hereinafter 
 contained. {Eng. Con. Ord. Prelim, r. 6.) 
 
 3. Where any of the Orders hereby abrogated were 
 intended to abolish any office, writ, practice, matter, fee, 
 or thing, such abrogation shall not have the effect of re- 
 viving the same. {Eng. Con. Ord. Prelim, r. 6.) 
 
 4. Every Order or part of an Order hereinafter con- 
 tained which is a repetition, without variation, of an Or- 
 
ORDERS 5 — 6. 119 
 
 der or part of an Order hereby abrogated, shall receive 
 the same construction as was put on the abrogated Order 
 or part of an Order, and shall operate, not as a new Or- 
 der, but in the same maaner, whether as to the time of 
 operation or otherwise, as the abrogated Order or part of 
 an Order would have operated if this consolidation had 
 not been effected. {Eng, Con. Ord. Prelim, r. 7.) 
 
 5. Every Order or part of an Order hereinafter con- 
 tained which is a repetition, with variation, of an Order 
 or part of aa Order hereby abrogated, shall receive the 
 same construction as was put on the abrogated Order, or 
 part of an Order, and shall operate not as a new Order, 
 but in the same manner, whether as to the time of ope- 
 ration, or otherwise, as such abrogated Order or part of 
 an Order would have operated if this consolidation had 
 not been effected, except so far as such variation indi- 
 cates a contrary intention. And where the variation is 
 of such a character as to be reasonably attributable, not 
 to a variation of intention, but simply to a design to, har- 
 monize the style or language of the several Orders here- 
 inafter incorporated, such variation shall not be deemed 
 to indicate any such contrary intention. (Eng. Con. 
 Ord. Prelim, r. 8.) 
 
 6. The following writs, pleadings, and proceedings, 
 are abolished : — 
 
 Subpoenas to appear and answer ; 
 
 Subpoenas to rejoin ; 
 
 Attachments with proclamations ; 
 
 Commissions of rebellion ; 
 
 Bills of revivor ; 
 
 Original bills in the nature of bills of revivor ; 
 
 Supplemental bills ; 
 
 Original bills in the nature of supplemental bills ; 
 
 Bills of revivor and supplement ; 
 
120 ORDER 7. 
 
 Bills in the nature of bills of review ; 
 
 Bills to impeach decrees on the. ground of fraud ; 
 ' Bills to suspend the operation of decrees ; 
 
 Bills to carry decrees into operation ; 
 
 Pleas ; 
 
 Appearance eitlier^by the defendant, or by the plain- 
 tiff on his^behalf; 
 
 Exceptions to "bills, answers, or other proceedings 
 for scandal or impertinence ; 
 
 Riiles to produce witnesses ;. 
 
 Rules to pass publication ; 
 
 Orders nisi ; 
 
 Applications to bej^exarained pro inieresse sua ; 
 
 Setting down a cause on an objection for want of 
 parties merely. 
 
 It shall not be necessary, in order to enforce any order 
 or decree to obtain any order for, or sue out a warrant to, 
 the Sergeant-at-arms. 
 
 7. In these Orders, and in all Orders to be passed here- 
 after, the following words shall have the meanings hereby 
 assigned to them, besides their ordinary meanings, unless 
 there is something in the subject or context repugnant to 
 such construction, viz : 
 
 1. Words importing the singular number include the 
 plural number ; and words importing the plural 
 number include the singular number. 
 
 2. Words importing the masculine gender include 
 females. 
 
 3. The word " person " or " party " includes a body 
 politic or corporate. 
 
 4. The word " bill " includes information. 
 
 5. The word " plaintiff" includes informant. 
 
 6. The word " affidavit " includes affirmation. 
 
 7. The word " legacy " includes an annuity and a 
 specific as well as a pecuniary legacy. 
 
ORDERS 8 9. 121 
 
 8. The word " legatee " includes a person interested 
 in a legacy. 
 
 9. The expression " residuary legatee " includes a 
 person interested in the residue. 
 
 10.- The word " order " includes decree and decretal 
 order. 
 
 11. The word "Master" includes Accountant and 
 Local Master. 
 
 12. The word " month " means calendar month. 
 
 II. OFFICERS OF THE COURT. 
 
 REGISTRAR. 
 
 8. All orders made in open Court, or to be issued on 
 precipe for foreclosure', sale, or redemption, or for a sale 
 instead of foreclosure on the application of an incum- 
 brancer, are to be drawn up, settled and passed by the 
 Registrar. 
 
 The minutes having been settled by the Registrar, should not be altered 
 in the absence of any party, Major v. Major, 13 Jur. 1 . A case ought 
 not to be spoken to on the minutes until they have been prepared by the 
 Registrar, unless he himself requires it, Prince v. Howard, 14 Bear. 208. 
 
 Under Orders 434 & 435, decrees are issued in precipe, in suits for the 
 foreclosure, sale or redemption of a mortgage, where no answer is filed ; 
 or where the answer admits the facts entitling the plaintifl' to a decree. 
 
 By Order 456, an incumbrancer, made a party in the Master's office and 
 entitled to a sale of the mortgaged property, may on depositing in Court 
 $80 to meet the expenses of the sale, obtain an order for a sale instead of 
 foreclosure. 
 
 The Court will not set aside a decree regularly obtained upon precipe, 
 except upon affidaylt shewing that the defendant will be damnified by 
 the decree being permitted to stand against him, Mitchell v. Crooks, 2 
 Grant, 123. 
 
 9. After an order is passed and signed by the Regis- 
 trar, the same is to be entered by the Entering Clerk, 
 and issued by the Registrar to the party entitled thereto. 
 
 A decree when passed and entered can only be varied on a re-hearing, 
 except in cases of fraud, Mitford's Eq. PI, 73 ; and even in case of fraud 
 it cannot be rectified on petition, Mussell v. Morgan, 4 Bro. C. 0. 74. 
 
122 ORDERS 10—12. 
 
 10. Every order is to be bespoken, and the briefs and 
 other documents required for preparing the same are to 
 be left with the Registrar, within seven days after the 
 order is pronounced or finally disposed of by the Court. 
 (1st April, 1867 ; Ord. 5.) iEng. Con. Ord. 1, r. 21.) 
 
 11- In case an order is not bespoken, or the briefs and 
 other documents are not left, within the time prescribed 
 by Order 10, the order is not to be drawn up without 
 leave being obtained on an application in Chambers. 
 (1st April, 1867 ; Ord. 6.) (Eng. Con. Ord. 1, r. 22.) 
 
 12. No notice to settle minutes or pass an order is 
 to be given unless by direction of the Registrar. (6th 
 Feb. 1865 ; Ord. 22.) 
 
 The Registrar may under this order settle the minutes of any decree or 
 order ex parte, but notice should always be given unless the case is an 
 exceedingly simple one. 
 
 A somewhat similar order is in force in England, Eng. Con. Ord. 1, r. 32. 
 Before the enactment of that order notice of passing a decree was held 
 necessary, Hargrave v. Hargrave, 3 Mao. & G., 348 ; and on account of 
 the omission of such notice the enrolment of a decree has been vacated, 
 Davenport v. Stafford, 8 Beav., 503. 
 
 A notice of selling or passing served one day for the next is regular, 
 Me Christmas, 19 Beav., 519. 
 
 If the parties do not attend it is usual to serve a second notice, but an 
 order drawn up in the defendant's absence will not be set aside unless 
 error be shown, Smith v. Acton, 26 Beav. 559 ; but if the minutes have 
 •been settled by the Registrar they cannot be altered in the absence of any 
 of the parties interested. Major v. Major, 13 Jur. 1. 
 
 When upon a perusal of the minutes it appears that anything is doubt- 
 fully expressed, or contrary to the meaning of the Court or that something 
 has been omitted which should have been inserted, and the Registrar 
 refuses to alter them, an application must be made to the Court to vary 
 the minutes. 
 
 This is done by notice of motion served 'upon all parties, and the alter- 
 ation desired should be expressed in the notice, Prince v. Howard, It 
 Beav. 208 ; Mood v. Cooper, 26 Beav. 373. There is no time limited within 
 which the motion must be made, but the application will be entertained 
 -at any time while the decree remains in minutes. Questions of import- 
 
ORDERS 13—15. 123 
 
 ance should not be raised on motions to vary minutes, but this rule is not 
 strictly adhered to, and discussions of great moment have been permitted, 
 Perry v. Phelips, 1 Ves. 250. 
 
 The minutes having been settled, the decree is engrossed and notice is 
 served appointing a time to pass it. The parties having attended upon 
 the motion to pass, and passed the decree, it is next entered in the decree 
 book in the Registrar's office, and the date of such entry is written ia 
 the margin of the book. All proceedings under a decree or order before 
 it is entered, are voidable and Irregular, Tolson v. Jenis, 8 Beav. 364 • 
 Drummand v. Anderson, 3 Grant, ISO. A decree founded on a bill taken 
 pro confesso, must be passed and entered as other decrees, Ord. 191. 
 
 13. Where a. notice is given to settle minutes, or to 
 pass an order, and the party served attends thereon 
 but the party giving the notice does not attend, or is not 
 prepeired to proceed, the Registrar may proceed ex parte 
 to settle the minutes, or pass the order, or may in his 
 discretion, order the party giving the notice to pay to the 
 other the costs of his attendance ; or if a party served 
 asks for delay, the Registrar may grant the delay on such 
 terms as he thinks reasonable as to payment of costs or 
 otherwise. (6th Feb. 1865 ; Ord. 23.) {Eng. Con. Ord. 
 1, r. 28.) 
 
 ACCOUNTANT. 
 
 14. The Accountant is to take and dispose of such 
 references of account and other matters as shall from 
 time to time be made to him by any order. (6th Feb., 
 1865; Ord. 32.) 
 
 15. The Accountant is, in regard to matters referred 
 to him, to have the same powers as the Master in Ordi- 
 nary to issue warrants, make appointments, and settle 
 and sign reports and certificates, and is to have all other 
 powers and privileges of the Master, except taxation of 
 costs ; and the reports, certificates, and other acts of the 
 Accountant, are to have the same effect, and be subject 
 to the same Orders and Rules as those of the Master. 
 (6th Feb., 1865; Ord. 33.) 
 
124 ORDERS 16—17. 
 
 By the original Chancery Act, 1 Wm. IV., c. 2, s. 9, it was enacted 
 that it should be lawful for the Governor, Lieutenant-Governor, or per- 
 son administering the government of the Province, from time to time, 
 under the great seal of the Province, to appoint, during pleasure, one 
 Registrar, two Masters, one Accountant, and a Sergeant-at-Arms, to the 
 said Court of Chancery, who,, when appointed, shall, in addition to the 
 duties usually performed by the like officers in England, be liable to per- 
 form such other duties as shall be assigned to them by the Vice-Chancel- 
 lor of Upper Canada. 
 
 Although, from the wording of the statute, it would appear as if the 
 Registrar had the first rank, the Master the second, and the Accountant 
 the third, the order should, in fact, be reversed. The Master takes rank 
 over the Registrar, and the Accoantaut-General is the Senior Master. 
 In England there were, prior to 15 & 16 Vic, cap. 80, when the oiEce of 
 Master was abolished, twelvfe Masters. The Master of the Rolls was one, 
 and the chief; the Accountant-General was usually the Senior Master 
 of the remaining eleven ; and the ten others were the ordinary Masters 
 in Chancery, Bennett's Master's Office, 1. 
 
 The powers and duties of the Master are defined by Orders 211 et seq., 
 to which, and the notes appended, the reader is referred. 
 
 16. The Accountant is to be entitled to take and re- 
 ceive for his own use, the same fees for all warrants, 
 reports, certificates, and other matters as are allowed to 
 the Local Masters. (6th Feb., 1865 ; Ord. 34.) 
 
 JUDGES' SECRETARY. 
 
 17. In the absence of the Judge, the Judges' Secretary- 
 is to sit in Chambers, and hear any applications which 
 the parties may choose to bring before him for this pur- 
 pose ; and he is immediately thereafter to submit the 
 same, with his opinion thereon, to a Judge for his order ; 
 and the Secretary is to adjourn to a future day any ap- 
 plications he does not hear and of which notice was 
 given. (10th Sept., 1865; Ord. 7.) 
 
 Applications to vary or discharge orders made by the Judges' Secre- 
 tary, are to be made within fourteen days, and are in the first instance to 
 be to a single Judge, upon notice, Ord. 329. 
 
 An appeal will not lie from an order made by the Judges' Secretary 
 until it is signed and entered, Gibb v. Murphy, 2 Cham. R. 132. A party 
 cannot use affidavits not used before the Judges' Secretary or make a 
 new case, on an appeal, Bank of Montreal v. Wilson, 2 Cham. R. 117. 
 
ORDERS 18—23. 125 
 
 18. The Judges' Secretary is to take and dispose of 
 such references, and to perform such other duties, and 
 render to the Judges such other services, as the Judges 
 may respectively from time to time require. 
 
 19. All orders made in Chambers are to be prepared 
 and signed by the Judges' Secretary ; and are to be au- 
 thenticated by the stamp of the office and issued by the 
 Judges' Secretary. 
 
 20. Such orders made in Chambers, as require to be 
 entered, are to be entered by the Entering Clerk in a 
 separate book kept for that purpose. 
 
 No order of course, and no order obtained ex parte and not being of a 
 special nature, is to be entered unless tlie entry thereof is directed by the 
 Court or a Judge, Ord. 195. 
 
 21. The Judges' Secretary is to have, in reference to 
 Chamber orders, the powers given to the Registrar by 
 Orders 12 and 13, respecting the passing of orders. 
 
 By these orders the Registiar may proceed to settle the minutes of an 
 order ex parte, when the party giving the notice does not attend, or may 
 order the party giving notice to pay the costs of the attendance, or if the 
 jsarty served with the notice asks delay, he may grant it upon such terms 
 as be thinks reasonable. 
 
 22- The Judges' Secretary is to keep in a book an 
 account of the fees received by him, and to report to the 
 Judges quarterly the particulars and amount thereof. 
 (10th Sept., 1866; Ord. 31. 
 
 CLERK OF RECORDS AND WRITS. 
 
 23. The Clerk of Records and Writs is to perform the 
 duties heretofore performed By the Registrar and his 
 Clerks in relation to the several matters hereinafter men- 
 tioned, that is to say : 
 
 1. Receiving, filing and custody of pleadings, re- 
 
126 ORDER 23. 
 
 ports, depositions, affidavits, and other papers 
 and proceedings, and making entries thereof in 
 the proper books. 
 
 2. Amending bills. 
 
 3. Entering consents, and notes pro confesso. 
 
 4. Setting down causes. 
 
 5. Certifying proceedings. 
 
 6. Examining anil authenticating office copies of 
 
 pleadings and other proceedings. 
 
 7. Preparing and issuing writs, commissions and 
 
 orders of course. 
 
 8. Preparing certificates for registration, procuring 
 
 the Registrar's signature thereto, and issuing 
 the same. 
 
 9. Attending on the opening of commissions. 
 
 10. Attending with records and exhibits on the 
 
 Judges of the Court or elsewhere. 
 
 11. InroUment of decrees or orders. 
 
 12. The care and custody of all documents ordered 
 
 to be deposited for safe keeping, or produced 
 under any order of Court. 
 
 13. The care and custody of the books kept under 
 
 the Act for Quieting Titles, and making the 
 necessary entries therein. 
 
 14. Preparing certificates of the filing of petitions, 
 
 procuring the Registrar's signature thereto, and 
 
 issuing the same. 
 16. Transmitting petitions to the proper Reieree. 
 16. Entering and issuing certificates of title and con- 
 
 veyaoces granted under the Act. 
 
 A certificate of the Clerk of E*ords and Writs is conclusive as to the 
 filing of a pleading, Beavan v. Burgess, 10 Jur. 63. 
 
 An affidavit cannot be read against the certificate of an officer of the 
 Court, Foley v. Griffith, 2 Moll. 318. 
 
 The Court will not order production of the original document unless- 
 sitisfied that an office copy is insufficient, Jervis v. While, 8 Tes. 313 : 
 
ORDERS 24—27. 127 
 
 Attorney- Oefieral v. Ray, 6 Bear. 335 ; 2 Ha. 518 ; 3 Ha. 335 ; Anon, 13 
 Beav. 420 ; and the application for an order must be on notice, Lamb v. 
 Danby, 9 W. R. '765. 
 
 24. The Clerk of Records and Writs is to keep in his 
 office a book to be called " The Solicitor's and Agent's 
 Book," in which each solicitor residing elsewhere than 
 in the City of Toronto, is to specify the name of an agent 
 being a solicitor of this_ Court, and having an office in 
 the City of Toronto, upon whom pleadings, writs, notices, 
 orders, appointments, warrants, and other documents 
 and communications may be served. (3rd June, 1853 ; 
 Ord. 43, s. 1.) 
 
 As to the consequences of neglecting to comply with this order, see 
 Ord. 42. 
 
 25. All orders of course are to be drawn up by the 
 Clerk of Records and Writs upon precipe. (3rd June, 
 1853 ; Ord. 43, s. 9.) 
 
 If an order of course is irregular the proper course is to moTe to dis- 
 charge it, Eyles v. Ward, Moselej 255 ; it cannot be treated as a nullity, 
 Chuck V. Gremer, 2 Phill. 113 ; Wilkins v. Stevens, 10 Sim. 617 ; Penning 
 V. Humphrey, 4 Beav. 1 ; Blake v. Blake, 1 Beav. 514. 
 
 An order obtained ex parte on an incorrect statement of facts will be 
 discharged, De Feucheres v. Dawes, 11 Beav. 46 ; Jenkyns v. Byrant 3 
 Drew. 70; Brignallv. Whitehead, 30 Beay. 229. 
 
 All orders drawn up by the Clerk of Records and Writs without the 
 special direction of the Court, may be drawn up by the Deputy Registrar 
 with whom the bill is filed, Ord. 37. 
 
 26. On Thursday in each week the Clerk of Records 
 and Writs is to make out and transmit to the Registrar a 
 list of all causes and matters set down for hearing during 
 the ensuing week. 
 
 27. The Clerk of Records and Writs is on the last 
 days of January, April, July and October in each year, 
 to pay into Court to the credit of " The Suitors' Fee Fund 
 Account," all moneys belonging to that Fund recived 
 by him during the preceding three months. 
 
12S ORDERS 28—30. 
 
 28. The Clerk of Records and Writs is to pay all 
 money received by him under Order 39 forthwith into 
 Court to the credit of" The Suitors' Fee Fund Account," 
 and is on the 31st day of January, and 31st day of July, 
 in each year, to lay before the Court a statement of the 
 amount belonging to the said fund, received during the 
 preceding six months, and the names of the Deputy 
 Registrars (if any) who are in arrear thereto, or who 
 have not made a return. 
 
 By Order 39 Deputy Registrars are required erery half year to make a 
 return to the Clerk of Record and Writs of the number of Bills, Answers 
 and Demurrers filed during the preceding six months, and to transmit 
 therewith the money belonging to the Suitors' Fee Fund. 
 
 29. The Clerk of Records and Writs is to perform 
 such other duties as the Court by General Order, or other- 
 wise, may from time to time direct. 
 
 30- All affidavits and papers filed with the Registrar or 
 in Chambers, are to be transmitted to the office of the 
 Clerk of Records and Writs the same day. 
 
 REGISTRAR'S CLERK. 
 
 31. The Registrar's Clerk in addition to his other 
 duties, is to be the Ledger Clerk to the Suitors' Accounts, 
 and is to keep the books required by the General Orders 
 relating to the suitors' accounts, mortgages and other in- 
 vestments, and to be responsible for the due keeping of 
 the same in accordance with the General Orders, and for 
 the correctness of all entries therein. 
 
 As to the payment of money into and out of Court, and the Books to 
 be kept in connection therewith, see Ord. 352, et seq. 
 
 ENTERING CLERK. 
 
 32. The Entering Clerk is to note in the margin of the 
 book the day of entering a decree or order, and is at 
 
ORDERS 33—34. 129 
 
 Ihe foot of the decree or order to note the same date, and 
 the book in which the entry has been made and the pages 
 -oi such book. (10th Sept. 1866 ; Ord. 6.) 
 
 DEPUTY REGISTRARS. 
 
 33- Every Deputy Registrar is to keep in his office a 
 .book to be called " The Solicitors' and Agents' Book," 
 in which each solicitor residing elsewhere than in the 
 County in'which such Deputy Registrar's office may be, 
 is to specify the name of an Agent, being a solicitor of 
 this Court, and having an office in the City or Town 
 where the office of such Deputy Registrar is situated, 
 upon whom all writs, pleadings, notices, orders, war- 
 ants, and other documents, and written communicationsr 
 dn relation to proceedings coiiducted in the office of the 
 .Local Master or Deputy Registrar of such County, may 
 ibe served. (3rd June, 1853; Ord. 44, s. 6.) 
 
 As to the consequences of neglecting to comply with this order, see 
 •Ord. 43. 
 
 f 
 
 34. Local Masters and Deputy Registrars respectively 
 are to perform the duties of their several offices in the 
 same manner, and under the same regulations, as the like 
 duties are performed by the Master and by the Clerk of 
 Records and Writs respectively ; and all orders, rules and 
 Tegulations, in force respecting the Master and Clerk of 
 Records and Writs respectively, and respecting the regu- 
 lation of their respective offices, are to be in force and 
 -applicable to the Local Masters and Deputy Registrars, 
 respectively, in relation to such duties as they are hereby 
 required to perform ; and the like sums and fees payable 
 to the Master and Clerk of Record and Writs respec- 
 tively, are to be payable to the Local Masters and Deputy 
 Registrars, respectively, in relation to similar matters. 
 <3rd June, 1853; Ord. 44, s. 1.) 
 
130 ORDERS 35 — 38. 
 
 Deputy Registrars and Local Masters are appointed by the Judges, wha 
 may at tLeir discretion remove them, Con. Stat. U. C, c, 12, s. 13 ; they 
 may retain for their own use all the fees of office, not belonging to any 
 fee fund, Ibid, s. 15. 
 
 35 Where a bill is filed with a Deputy Registrar, the 
 Local Master and Deputy Registrar respectively in the 
 County where such bill has been filed, are to have all 
 such powers and authorities in relation to such suit as 
 belong to the Master and Clerk of Records and Writs 
 respectively. (3rd June, 1853 ; Ord. 44, s. 3.) 
 
 The plaintiff has, prima facie, a right to have the reference directed to 
 the Master resident in the County where the bill is filed, Macara v. Gvynne^ 
 3 Grant, 310. 
 
 36. In addition to the powers and authorities conferred 
 upon Local Masters by Order 35, the Local Master in 
 the County where the bill has been filed may hear and 
 dispose of all applications in the progress of such suit, 
 for the following purposes, viz : — 
 
 1 . To appoint guardians ad litem for infants. 
 
 2. For time to answer or demur. 
 
 3. For leave to amend before replication. 
 
 4. To postpone the examination of witnesses, or tO' 
 allow further time for the production of evidence. 
 
 5. For security for costs. (3rd June, 1863 ; Ord. 44,, 
 s. 4.) 
 
 For the mode of proceeding to appoint a guardian ad litem, see Ord. 
 519 ei seq.; and aa to amendment of bills, see Ord. 18, el seq. 
 As to security for costs, see Ord. 409, and notes. 
 
 37. All orders which are drawn up by the Clerk of 
 Records and Writs without the special direction of the 
 Court may be drawn up by the Deputy Registrar with 
 whom the bill is filed. (3rd June, 1853 ; Ord. 44, s. 5.) 
 
 38. Every Deputy Registrar may issue decrees on pre- 
 cipe for foreclosure, sale or redemption, where the suit 
 
ORDERS S9 — 4Q.. I3J 
 
 is between the original mortgagee and mortgagor only,, 
 and is to enter such decrees in a book, t o be approved of 
 by the Court, and kept for that purpose by the Deputy 
 Registrar. 
 
 As to decrees in mortgage suits, see Ord. 426, ei seq. 
 
 39. Every Deputy Registrar is forthwith, after the 30th 
 June and 31 st of December, in every year, to make a 
 return to the Clerk of Records and Writs, of the number 
 of bills, answers and demurrers, filed with such Deputy 
 Registrar during the preceding six months, and is to 
 transmit with such return the amount of fees payable 
 iato " The Suitors' Fee Fund Account." 
 
 As to the duty of the Clerk of Records and Writs on receiving such 
 returns, or where they are not made, see Ord. 28. 
 
 III. SOLICITORS, AND PARTIES ACTING IN 
 PERSON, AND SERVICE ON THEM RE- 
 SPECTIVELY. 
 
 40- Upon every writ sued out, and upon every bill, 
 demurrer, answer or other pleading or proceeding, there 
 shall be endorsed the name or firm and place of business 
 of the solicitor and solicitors by whom such writ has 
 been sued out, or such pleading or other proceeding has 
 been filed ; and when such solicitors are agents only, 
 then there shall be further endorsed thereon the name or 
 firm, and place of business of the principal solicitor. 
 (3rd June, 1853 ; Ord. 43, s. 2.) 
 
 Service of subpoena to appear and answer, without endorsement, may 
 be set aside on speedy application, Johnson v. Barnes, 1 DeG. & S. 129 ;, 
 omision of the address for service does not necessarily make the writ 
 Toid, but the Court will stay process till the rule is complied with, Price 
 V. Webb, 2 Hare, 511. An attachment was discharged with costs, endorse-, 
 ment of subpoena on which it issued being defective, Barnes v. Tweddell^ 
 Coop. 440. 
 
132 ORDERS 41 — 42. 
 
 An irregularity in the endorsement on a pleading, of the name and 
 place of business of the solicitor filing it, is waived by demanding and 
 receiving a copy of the pleading, Bennettv, O'Meara, 2 Cham. R. 167. 
 
 As to changing a solicitor, see Ord. 49, and the notes. 
 
 41 . Where the name and place of business of a soli- 
 citor have been endorsed upon any pleading or proceeding 
 filed, it shall not be necessary to indorse such place of 
 business on any pleading or proceeding in the same 
 cause or matter subsequently filed or subsequently served 
 on any person who was served with the former proceed- 
 ing. (10th Sept., 1866; Ord. 32.) 
 
 42. Where the pleadings in any cause have been filed 
 in the office of the Clerk of Records and Writs, or in the 
 office of any Deputy-Registrar, all notices, appointments, 
 warrants, and other documents and written communi- 
 cations in relation to matters transacted in Court or 
 Chambers, or in the office of the Master, Registrar or 
 Clerk of Records and Writs, which do not require per- 
 sonal service upon the party to be affected thereby, are to 
 be served upon the solicitor when residing in the City of 
 Toronto ; and when the solicitor to be served resides else, 
 where than in the City of Toronto, then such notices, 
 appointments, warrants, and other documents, and writ- 
 ten communications aforesaid, may be served either upon 
 such solicitor or upon his Toronto agent named in the 
 " Solicitors' and Agents' Book ; " unless the Court, or a 
 Judge thereof, or a Master, before whom any such pro. 
 ceeding is had shall give any direction as to the solicitor 
 upon whom any such notice, appointment, warrant, or 
 other document or written communication is to be served. 
 If any solicitor neglect to cause such entry to be made in 
 the " Solicitors' and Agents' Book," as is required by Order 
 24, the posting up a copy of any such notice, appoint, 
 raent, warrant or other document, or written communi- 
 cation for the solicitor so neglecting as aforesaid, in the 
 office of the Clerk of Records and Writs, is to be deemed 
 
ORDERS 43—44. 133" 
 
 sufficient service, unless the Court direct otherwise. 
 (29th June, 1861.) 
 
 As to service on solicitors generally, see Re Wuewold, 16 Beav. 357; ■ 
 Se Dufaur, 16 Beav. 113; He CatUn, 18 Bear. BOS; Wilson v. Emmett 
 19 Beav. 233 ; iJe Thornton, 20 Beav. 645 ; Ex parte Belton, 25 Beav. 368 ,' 
 Re Walton, 4 K. & J. TS. 
 
 The Court, under peculiar circumstances, allowed service to be affected' 
 upon the solicitor by placing it under the door of his chambers, Re Tern- 
 pieman, 20 Beav. 574; where a solicitor had absconded, he was held pro- 
 perly served with a notice of motion left at his unoccupied place of busi- 
 ness, "Sewton V. Thompson, 22 L. J. Ch. 10. <? Pi OlcAtcil. JR^- .^Z 
 
 43. All writs, pleadings, notices, orders, warrants, and 
 other documents and written communications which do 
 not require personal service upon the party to be affected 
 thereby, may be served upon his solicitor residing in the 
 county where such proceedings are conducted, or, where 
 such solicitor does not reside in the county where such 
 proceedings are conducted, then upon the agent named 
 in " the Solicitors' and Agents' Book," provided for by 
 Order 33. And if any such solicitor neglect to cause 
 such entry to be made in " the Solicitors' and Agents' 
 Book," the posting up a copy of any such writ, pleading, 
 notice, order, warrant or other document or written com- 
 munication for the solicitor so neglecting as aforesaid in 
 the office of such Deputy Registrar, is to be deemed suf- 
 ficient service. „(3rd June, 1853 ; Ord. 44, s. 6.) 
 
 See notes to preceding Order. 
 
 44. Every party suing or defending in person is to 
 .cause to be endorsed or written upon every writ which 
 he sues out, and upon every bill, demurrer, answer, or 
 other pleading or proceeding, his name and place of resi- 
 dence, and also (when his place of residence is more 
 than three miles from the office where such pleading or 
 other proceeding is filed) another proper place, to be 
 called his address for service, not more than three miles 
 from the said office, where writs, notices, orders, war- 
 
134 ORDERS 46 — 46. 
 
 rants, and other documents, proceedings and written com- 
 munications may be left for him. (3rd June, 1853 ; 
 Ord. 43, s. 3.) 
 
 See notes to Order 40. 
 
 45. Where a party sues or defends in person, and no 
 address for service of such party is written or printed 
 pursuant to the directions of Order 44, or where a party 
 has ceased to have a solicitor, all writs, notices, orders, 
 summonses, warrants, and other documents, proceedings 
 and written communications, not requiring personal ser- 
 vice upon the party to be affected thereby, shall, unless 
 the Court shall otherwise direct, be deemed to be suffi- 
 ciently served upon such party, by posting up a copy 
 thereof in the office of the Clerk of Records and Writs or 
 Deputy Registrar where the bill is filed. But if an ad- 
 dress for service is written or printed as aforesaid, then 
 all snph writs, notices, orders, summonses, warrants and 
 other documents, proceedings, and written communi- 
 cations, shall be deemed sufficiently served upon such 
 party if left for him at such address for service. 
 
 46. Where a party or a solicitor causes an answer, 
 demurrer or replication to be filed, he is to give notice 
 thereof, on the same day, to the solicitor of the adverse 
 party or to the adverse party himself if he act in person. 
 (3rd June, 1853; Ord. 19.) (Eng. Con. Ord. 3, r. 9.) 
 
 This is important, as the defendant cannot move to dismiss unless he 
 is prepared to prove the service of notice of his .answer being filed, Kay 
 V. Sanson, 1 Cham. R. 71. In Jones u. Jones, 1 Jar. N. S., 863, this was 
 held unnecessary, but the Court has refused to act upon this case, as ren- 
 dering this order inoperative; and see Zoa v. Williams, 12 Beav. 482. 
 
 The omission to serve notice does not entitle the opposite party to 
 treat the pleading as a nullity or as irregular, Smith v. Muirhead, 2 
 Grant, 395. 
 
 Where a month elapsed between the' filing of the replication and serv- 
 ing the notice, the replication was ordered to be taken oS the files, John- 
 son V. Tucker, 15 Sim. 599 ; but the proper course seems to be, not to 
 
ORDERS 47 — 49. 135 
 
 move to take it off the files, but to more to enlarge the time for taking 
 ■the next step in the cause, Wright v. Angle, 6 Hare 107 ; Lloyd v. Solicitors' 
 Life Assurance Co., 3 W. R., 640. In this case V. C. Wood, to discourage 
 the practice of such summary applications on a mere slip, refused to give 
 any costs. 
 
 47. Where an acceptance of service of any bill, order, 
 •or other proceeding, and an undertaking to answer or 
 appear thereto are given by a solicitor, such acceptance 
 and undertaking are to be equivalent to personal service 
 upon the party for whom the same are given, within the 
 meaning of the Order requiring personal service, and an 
 affidavit of personal service is in such case dispensed 
 with. (10th Sept. 1866 ; Ord. 33.) # 
 
 Where a solicitor accepts service of an office copy of a bill and under- 
 takes to answer, the bill may be noted pro confesso in default of an 
 answer, without any notice being served. 
 
 When the solicitor accepts service only, notice of motion for an order 
 pro confesso must be given, but the notice may be served upon the 
 ; solicitor, Ross v. Hayes, 6 Grant, 277. 
 
 48. Admissions and acceptances of the service of a 
 bill, order, notice of motion or other paper, upon the 
 opposite solicitor, need not be verified by affidavit (3rd 
 June, 1853; Ord. 40, s. 1.) 
 
 49. A party suing or defending by a solicitor, shall 
 not be at liberty to change hip solicitor in any cause or 
 matter without an order of the Court for that purpose, 
 which may be obtained on precipe ; and until such order 
 is obtained and served, and notice thereof given to the 
 •Cleik of Records and Writs, or Deputy Registrar with 
 whom the pleadings are filed, the former solicitor shall 
 be considered the solicitor of the party. 
 
 Before this order it was not necessary to obtain an order to change the 
 -solicitor, Bailey v. Bailey, 2 Cham. R. 57. 
 
 All the plaintiffs in a suit should appear by oae solicitor, Peareih v. 
 .Peareih, Johns. 58. 
 
136 ORDER 49. 
 
 An order to change, operates as a discharge of the solicitor by the ■ 
 client, Webster v. Le Hunt, 9 W. R. 804 ; Ward v. Swift, 6 Ha. 309. 
 
 The order applies where there has been a change only in the firm of 
 solicitors, Muttlebury v. Bayward, 8 Jur. 1085. Where the solicitor dies, 
 pending the suit no order is necessary, Whalley v. Whalley, 22 L. J. Ch. 
 632 ; Mchin v. Buffalo and Lake Huron Rail. Co., 2 Cham. R. 45. Where 
 money is standing to the separate account of a party to the cause, he 
 may apply for payment out by a new solicitor, Waddilove », Taylor, 17 
 L. J. Ch. 384. 
 
 If the solicitor of a party to the suit dies, and he neglects to appoint a- 
 new one, he should he served with a subpoena to name a solicitor. Rat- 
 cliffe V Roper, 1 P. Wms. 420-; FrancJrlyn v. Colborne, 12 Ves. 2 ; Gibson- 
 V. Ingo, 12 Jur. 105 ;' 2 Phil. 402 j and when a defendant's solicitor died,, 
 and the plaintiff obtained an order that he should name a new one, which ■ 
 he faUed to do, the Court directed accounts to be taken in his absence, 
 X>eaBTO. Lethbridge, 26 Bear. 397. 
 
 Where an order of course to change a solicitor was obtained, suppres- 
 sing a speciar contract respecting the employment of a solicitor, it was 
 discharged with costs, Jenkins v. Bryant, 3 Drew, 70 ; Richards v. Scar- 
 borough Market Company, 1 1 Bear. 83 ; Topping v. Searson, 2 H. <fe M. 
 205. 
 
 Although a solicitor may, for sufficient cause, give notice to his client, 
 that he will not act as such solicitor, and thus terminate the connection' 
 between them, the Court will not make an order for that purpose upon 
 the ex parte application of the BoMciloi, Bricker v. Ansell, 1 Cham. R. 367. 
 
 Where the solicitor is changed without an order, services effected upon 
 the old solicitor are regular, Davidson v. Leslie, 9Beav. 104; Wright v. 
 King, 9 Beav. 161. 
 
 As to the lien of a solicitor who is discharged by an order changing 
 the solicitor, see Cresswell v. Byron, 14 Ves. 271 ; Commerall v. Poynton, 
 1 Swans, 1 : Colgrave v. Manley, T. & R. 400 ; Heslop v. Metcalfe, 3 M. & 
 C. 183 ; Bozon v. Bolland, i M. & C. 354 ; Cane v. Martin, 2 Beav. 584. 
 
 A solicitor who conducts a case to its conclusion in the place of one 
 who by arrangement with his client retires from the conduct of it, has- 
 priority for his costs in case of a deficiency of assets, Cormack v. Beisly,^ 
 SD.A J., 157. 
 
 Where a solicitor voluntarily withdraws ho must deliver the client's 
 ■ papers to the new solicitor, but where he is discharged by the client, he 
 is not disentitled to his lien, even though the reason is that he is in em- 
 barrassed circumstances. Re Smith, 9 W. R. 396 ; Re Williams, 28 Beav. . 
 465; 3D. F. & J. 157. 
 
 The client is entitled to the convenient use of his papers in pending., 
 business, even where the lien exists, RawHason v. Mofs, 9 W. R. 733 ; and 
 where a solicitor refused to carry on a suit unless money was advanced, or - 
 
ORDERS 50 — 52, 137 
 
 to deliyer up tte papers until his costs were paid, the Court on the 
 client's application, ordered a taxation, and that the papers should be 
 delivered to the new solicitor on his undertaking to hold them subject to 
 the former solicitor's lien, if any, and to re-deliver them within ten days 
 after he had ceased to have occasion for them for the purposes of the 
 suit, Ley v. Brown, 1 Cham. R. 1 79. 
 
 50. Where a solicitor is struck off the roll of solicitors 
 or prohibited from practising as a solicitor, for malpractice 
 or misconduct as a solicitor, or other sufficient cause, 
 the Registrar is forthwith to certify under the seal of this 
 Court, such dismissal or prohibition, and the grounds 
 thereof expressed in general terms, and transmit such 
 certificate to each of the Superior Courts of Ontario. 
 (6th Feb. 1854.) 
 
 51. This Court on receipt of a similar certificate from 
 the Court of Queen's Bench, or Court of Common Pleas, 
 of any attorney of either of the said Courts respectively, 
 having been struck off the roll of such Court, or pro- 
 hibited from practising therein, will thereupon take pro- 
 ceedings for striking such person, being a solicitor of 
 this Court, from the roll of solicitors ; or for prohibiting 
 his practising therein, according to the course and prac- 
 tice, and in like manner and under like circumstances, 
 observed in similar cases in the Superior Courts in 
 England. (6th Feb. 1854.) 
 
 52. Where a case appears justifying or requiring by 
 the practice hitherto, an order against a solicitor that he 
 be struck off the roll of solicitors, unless he shall before 
 a time therein limited, shew unto the Court good cause 
 to the contrary, it shall be competent for the Court in lieu 
 thereof to issue an order calling upon the solicitor to 
 answer the matters appearing on affidavit or otherwise. 
 
 For the mode of proceeding before this order, see Goodwin v. Gosnell, 
 2 Coll. 467, 462 ; WAeatley v. Bastow, Re Collins, T D. M. & G. 261, 558; 
 Thorndyke v. Hunt, 5 Jur. N. S. 879, 882; .Re Martin, 6 Beav. 337; Re. 
 Chandler, 22 Beav. 253; Re Hall, 2 Jur. N. S. 633. 
 
138 ORDER 53. 
 
 IV. Parties. 
 
 Formerly the subject of parties was one of great intricacy, and difficult 
 questions often arose'as to the applications of the general rules. At the 
 present day the learning on the subject has been greatly simplified, but, 
 as it still deserres, and should receive, careful study, a few observations 
 may be made as to persons by whom a suit may be instituted. The gene- 
 ral rule is that every person may, on his own behalf, file a bill, if that be 
 the proper remedy, and the subject be within the jurisdiction of a Court 
 of Equity; but the matter in dispute must be of sufficient value to warrant 
 the interference of the Court. 
 
 There are, however, two leading exceptions to the foregoing rule ; the 
 one of persons enjoying peculiar privileges, the other of persons labouring 
 under disabilities. Among the first class are, the Crown, those who par- 
 take of its prerogative, or whose rights are under its protection, and for 
 eign States ; among the second class are, married women, and infants. 
 
 1. The Crown. 
 
 Where a suit is instituted on behalf of the Crown, the matter of com- 
 plaint is offered to the Court by the Attorney General by way of infor- 
 mation. Where the rights of the Crown are immediately concerned, the 
 Attorney General proceeds upon his own authority, but where they are 
 not immediately concerned, he depends on the relation of some person 
 whose name is inserted in the record, and who is called the relator, Mit- 
 forWsEq. PI. 22. This person in reality sustains and directs the suit; 
 and is answerable to the Court and the parties for the propriety of the 
 proceedings and the conduct of them, DanieVs Oh. Pr. \\ ; and he is lia- 
 ble for the costs, Atty. Oen. a. Smart, 1 Ves. Sen. 72. He cannot, how- 
 ever, take any step in the cause, in his own name and independent of the 
 Attorney General, Atty. Oen. v. Wright, 3 Beav. 447. In the last men- 
 tioned case, a notice of motion having been given on behalf of the relator, 
 an objection was made that it ought to have been on behalf of the Attor- 
 ney General, and Lord Langdale decided that the notice was irregular, 
 and said that " relators should know that they are not parties to informa- 
 tions, and have no right of their own authority to make any application 
 to the Court. The Attorney General is the only person whom this Court 
 recognizes in such cases." And in another case Lord Cottenham refused 
 to hear the relator in person on behalf of the Attorney General, and said 
 he could not separate the information from the bill so as to hear him as 
 the plaintiff in the suit, Atty. Gen. v. Barker, 4 M. <fe C. 262. It some- 
 times happens that the relator has an interest in the matter in dispute, Of 
 the injury to which interest he is entitled to complain in, and such case 
 his personal complaint being joined to and incorporated with the informa- 
 tion given to the Court by the officer of the Crown, they form together an 
 information and bill, and are so termed. They are, however, in some re- 
 spects, considered as distinct proceedings ; and the Court will treat them 
 
ORDER 53. 139 
 
 as such, by dismissing the bill and retaining the information, even though 
 the relief to be granted is different from that prayed, Atty. Gen. 11. Vivian, 
 1 Russ. 226. Though it is usual to have a relator, yet it is not necessary, 
 and the Atljorney General may if he pleases proceed without one, Re 
 Bedford Charity, 2 Swanst. 520. 
 
 As the relator is liable for the costs, neither an infant, a married wo- 
 man, nor a lunatic, can be a relator, Atty. Gen. v. Tyler, 2 Eden. 230. 
 
 If there are several relators, the death of one of them will not affect the 
 suit, but if they all die, or if there be but one and he dies, though the suit 
 does not abate, the Court will not allow any further proceedings until an 
 order is obtained for liberty to insert the name of a new relator, Atty. 
 Gen. V. Haberdasliers' Co., 16 Jur. Ill; otherwise there would be no per- 
 son to pay the costs of the suit in case the information should be deemed 
 improper, or for any other reason should be dismissed. 
 
 The application to name a new relator must be made by the Attorney 
 General, not by the defendant, Jtly. Gen. a. Plumptree, 5 Madd. 452. 
 
 When informations are filed on behalf of idiots and lunatics, it seems 
 that not only must the lunatic be a party, but it is also requisite that there 
 should be a relator who may be responsible to the defendant for the costs 
 of the suit. 
 
 The object in requiring that there should be a relator in informations 
 exhibited on the part of the Attorney General, is, that there may be some 
 person answerable for the costs, in case they should have been improperly 
 filed. Thus, where the information was held to have been unnecessary, 
 and contrary to the right, the costs were ordered to be paid by the rela- 
 tor, Atty. Gen. v. Smart, 1 Ves. Sen. 12 ; but where the relator insisted 
 upon a particular construction of the will of the person by whom the 
 charity was founded, and in which there was considerable ambiguity 
 although he failed in satisfying the Court that his construction was the 
 right one, and the information was dismissed, the Court did not make him 
 liable for the costs of the defendant, Atty. Gen, v. Oglender, 1 Ves. 246- 
 And in general where an information prays a relief, which is not granted 
 but the Court thinks proper to make a decree according to the merits, so 
 that the information is shown to have had a foundation, although the 
 relief is not such as the relator prayed, the relator will not be ordered to 
 pay the costs, Atty. Gen. v. Bolton, 3 Anst. 820. 
 
 In general where relators conduct themselves properly, and their conduct 
 has been beneficial, they are allowed their costs, Atty. Gen. v. Brewers 
 Co. 1 P. Wms. 376. 
 
 In some cases the costs of the relators will be allowed as between 
 solicitor and client, on the principle that otherwise people would not 
 come forward to file informations, and in special cases they will be allowed 
 their charges and expenses in addition to the costs of the suit, Daniel's 
 Gh. Pr. 18 ; Atty. Gen. v. Kerr, 4 Beav. 297 ; Atty Gen. v. Ironmongers' 
 Co. 10 Beav. 194. 
 
140 ORDER 53. 
 
 If it be made to appear to the Court, after the information is iiled, that 
 the relator is not a responsible person, all further proceedings will be 
 suspended till a proper person shall be named as relator, Atty. Gen, o. 
 Tyler, 2 Eden. 230 ; and see Atty. Gen. v. Knight, 3 M. & 0. 154. 
 
 An information by 'the Attorney General cannot be dismissed for want 
 of prosecution, it is his privilege to proceed in what way he thinks proper ; 
 but an information in his name by a relator, is subject to be dismissed for 
 want of prosecution, with costs, Daniel's Ch. Pr, 18. 
 
 2. Foreign Governments. 
 
 It was regarded by Lord Thurlow as doubtful whether the Sovereigii 
 ot a foreign State could sue in the Municipal Courts of this country, and 
 whether the claims of such a person were not matter of application from 
 State to State, Barclay v. Russell, 3 Tes. 431 ; The Nabob of the Carnatic 
 V. Hast India Co., 1 Ves. 3Yl ; the point has now, however, been decided 
 in the afBrmative, The King of Spain v. Machado, 4 Russell, 225 ; City of 
 Berne v. Bank of Englana, 9 Ves. 347. 
 
 To entitle a foreign government to sue, it is necessary that it should 
 have been recognized by the English Government. This was first dis- ' 
 cussed in the City of Berne v. the Bank of England, when an application 
 to restrain the Bank of England and South Sea Company from permitting 
 the transfer of certain funds standing in the name of trustees under a pur- 
 chase by the old government of Berne before the revolution, was opposed 
 on the ground that the existing government of Switzerland had not been 
 acknowledged by the government of England, and could not be noticed 
 by the Court. Lord Eldon refused to make the order, observing that it 
 was extremely diflElcultto say that a judicial Court can take notice of a gov- 
 ernment never recognized by the government of the country in which the 
 Court sits ; and that whether the foreign government was recognized or 
 not, was matter of public notoriety. 
 
 The fact of the foreign government not having been acknowledged ig 
 matter of public notoriety, and must be taken judicial notice of by the 
 Court, even though there is an averment in the bill, that it has been re- 
 cognized, Taylor v. Barclay, 2 Sim. 213. 
 
 Where a foreign state comes for the aid of the Court, in the assertion of 
 its rights, it must sue in a form which makes it possible for the Court to do 
 justice to the defendants ; and it must sue in the name of some public 
 oficer entitled to represent the interests of the state, upon whom process 
 on the part of the defendant may be served, The Columbian Government 
 V. Bothschild, 1 Sim. 104 ; and see United States v. Wagner, 3 L. R. Eq 
 724. 
 
 3. Corporations. 
 Not only have persons in their natural capacities the right to sue, but 
 
ORDER 53. 141 
 
 the power to sue and be sued in their corporate name is a power insepar- 
 ably incident to every corporation, whether it be sole or aggregate. 
 
 As a corporation'must take and grant by their corporate name, so by 
 that name they must in general sue and be sued ; and they may sue by 
 their true name of foundation, though they be better known by another 
 name, Daniel's Ch. Pr., 22. 
 
 A suit by a corporation aggregate, to recover a thing due to them in 
 their corporate right, must not be brought in the name of their head alone, 
 but in their full corporate name, unless it appears that the Act of Parlia- 
 ment or charter by which they are constituted enables them to sue la 
 the name of their head. But though it appears that the head of the cor- 
 poration is enabled to sue in his own name for anything to which the 
 corporation is entitled, this will not preclude it from suing- by its name of 
 incorporation. 
 
 In the ease of a bill and information, in which the corporation of Leeds 
 was both plaintiff and relator, an objection was made that a corporation, 
 being a body whose identity is continuous, could not be heard to im- 
 peach transactions carried into effect in its own name by its former gov- 
 erning body ; but the objection was overruled by Lord Cottenham. He 
 observed " that the true way of viewing this is to consider the members 
 of the governing body of the corporation as its agents, bound to exercise 
 i ts functions for the purposes for which they were given, and to protect 
 its interests and property ; and if such agents exercise, those functions for 
 the purpose of injuring its interests and alienating its property, shall the 
 corporation be stopped in this Court from complaining, because the act 
 done was ostensibly an act of the corporation," Attorney General u,. Wil- 
 son, Cr. <SiPh. 1. 
 
 As a corporation cannot, unless specially authorized by their constitu. 
 tion, sue by their head alone, so neither can a corporation aggregate, which 
 has a head, sue or be sued without it, because without it the corporation 
 is incomplete. It is not, however, necessary to mention the name of the 
 head, 1 Kyd, 281 ; nor is it necessary in the case of corporations aggre- 
 gate to name any of the members by their proper christian and surnames ; 
 but if in a suit in Equity by the members of a corporation in the corporate 
 capacity, they are mentioned by their names, the suit will not become 
 defective by the death of some of the members, although it would have 
 abated if the suit had been by them in their individual characters. Black' 
 burn V. Jepson, 3 Swanst. 138. 
 
 A sole corporation suing for a corporate right, having two capacities, 
 a, natural and a corporate, must always shew in what right he sues. 
 
 In this respect it differs from a corporation aggregate, because the lat- 
 ter having only a corporate capacity, a suit in their corporate name can 
 be only in that capacity. It also differs from corporations aggregate, in 
 that by the death of a corporation sole, a suit by him, although instituted 
 
148 ORDER 53. 
 
 in his corporate capacity, becomes abated, which is not the case, as stated 
 aboTe, with respect to suits by corporations aggregate. 
 
 Although corporations aggregate are entitled to sue in their corporate 
 capacity, the Court will not allow parties to assume a corporate character 
 to which they are not entitled ; and where it appears on the bill that the 
 plaintiffs have assumed such a character without being entitled to it, a 
 demurrer will hold, Lloyd v. Loaring, 6 Ves. 773. 
 
 A foreign corporation may sue in this country in their corporate name 
 and capacity ; but it is not necessary in pleading that they should set forth 
 the proper names of the persons who form such corporation, or shew how 
 it was incorporated ; though if it be denied, they must prove that by the- 
 law of the foreign country they were effectually incorporated, Dutch West 
 India Company v. Vanmoyses, 2 Ld. Ray. 1635. 
 
 In the case ot Lloyd v. Loaring, above referred to. Lord Eldon gave the 
 plaintiffs leave to amend their bill by striking out their present style as- 
 plaintiffs, and suing as individuals on behalf of themselves, and the other- 
 persons interested. And ever since, it has been held, that where all parties- 
 stand in the same situation, and have one common right and one commoiL 
 interest, two or three, or more, may sue in their own name for the benefit 
 of all ; and on this principle large partnerships, or associations in the- 
 nature of joint-stock companies, though not incorporated are permitted to • 
 maintain suits instituted in the name of a few or more individuals inter- 
 ested on behalf of themselves and the other parties in the concern, Cock- 
 burn V. Thompson, 16 Tes. 321 ; Blain v. Agar, 1 Sim. 37. 
 
 4. Married Women. 
 
 As was formerly stated, one of the exceptions to the general rule thati- 
 every person may maintain a suit in Equity, was, that of persons labouring 
 under disabilities, and among such were said to be married women and 
 infants. 
 
 A married woman cannot, at law, sue except jointly with her husband • 
 for she is deemed to be under his protection, and a suit respecting her 
 ri§:hts or interests must be with the assent and co-operation of her hus- 
 band. In Equity, a suit respecting the rights of a married woman, other 
 than those in her separate estate, is brought by her and her husband; 
 jointly, and the bill is that of the husband, Pawlett v. Delaval, 2 Ves. Sen 
 663. 
 
 But when she has a separate interest as co-plaintiff with her husband 
 or being a defendant answers jointly with him, instead of suing by her- 
 next friend, or answering separately, the suit or defence is considered 
 that of the husband alone, and will not prejudice any future claim by the 
 wife, Hughes v. Evans, 1 S. & S. 185 ; Mole v Smith, 13.&W. 665. 
 
 Where the suit relates to her separate property, the bill must be filed 
 in the name of the wife, by her next friend, otherwise the defendant may 
 
ORDER 53. 143 
 
 ♦ 
 take an objection for misjoinder of plaintiff, pupon tlie ground, that she 
 
 may at any future time institute a new suit for the same matter ; and , 
 
 that upon such new suit being instituted, a decree in a cause over which 
 
 the husband had the exclusive control and authority, would not operate 
 
 as a valid bar against her subsequent claim, Wake v. Parker, 2 Keen, 59 
 
 and see Warren v. Buck, 4 Beav. 95, as to the time when the objection 
 
 can be taken by the defendant. In practice the husband is sometimes 
 
 made a co-plaintiff, but this is incorrect, and in all such oases the ^wife 
 
 should sue, as sole plaintiff, by her next friend, and the husband should be 
 
 made a party defendant, Story's Eq. PL, s. 63. 
 
 To authorize the filing of a bill by her next friend, her consent must be 
 obtained, and if it is filed without her consent, it will be dismissed upon 
 her afSdavit of the matter, Cooke v. Fryer, 4 Beav. 13; unless she is an 
 infant, when her consent ia not necessary, Wortham v. Pemberton, 9 
 
 Jur. 291. 
 
 Where the bill is filed without a next friend, the proper motion, in the 
 first instance, is that a next friend be appointed, and that in the mean- 
 time all proceedings in the suit be stayed, McPherson v. MoCabe, 1 
 Cham. E. 250. 
 
 When the next friend of a married woman dies pending the suit, she 
 may obtain an order to substitute a new one, and if she neglect to do so 
 the defendant may move upon notice for an order that she do within a 
 limited time name a next friend, or that the bill be dismissed with cost?, 
 Barhe v. Barlee, 1 S. & S. 100. 
 
 The next friend of a married woman must be a solvent person, capable 
 of answering costs, and if he is not the Court will order the plaintiff to 
 give security for costs, or appoint another next friend, Rann v. Lawless, 
 1 Cham. R. 333; VanviinUev. Chaplin, 2 Cham. R. 98. Scyi.ZfZ ^e^/i uJtz. . 
 
 As to the effect of Con. Stat. U. C, c. tS, respecting certain separate 
 rights of property of married women, see Royal Canadian Bank v. 
 Mitchell, 14 Gr. 412; Chamberlain v McDonald, 14 Gr. ii1.7A.^-iA>^'0 
 
 5. Infants. 
 
 Although for many purposes an infant is under legal incapacity and 
 disabilities, yet a suit may be maintained either at law or in equity, for 
 the assertion of his rights, or for the security of his property, and for 
 this purpose a child has been considered to have commenced its existence 
 as soon as it is conceived in the womb. Under such circumstances it is 
 termed in law an infant en ventre sa mere, and a suit may be sustained 
 on its behalf, and the Court will, upon application in such suit, grant an 
 injunction to restrain waste from being committed on its property, Mus- 
 grave v. Parry, 2 Tern. 710. 
 
 An infant may maintain a suit for the assertion of his rights, but he 
 can do nothing which can bind himself to the performance of any act 
 
144 ORDER 53. 
 
 » 
 
 therefore, where from the nature of the demand made by the infant it 
 ■would follow that, if the relief sought were granted, the rules of mutuality 
 would require something to be done on his part, such a suit cannot be 
 maintained. Thus an infant cannot maintain a suit for a speci6o per- 
 formance of a contract, because if a decree were to be made for a specific 
 performance as prayed, on the part of the infant, the Court has no power 
 to compel him to perform it on his part, either by paying the money or 
 executing a conveyance, Flight v. Solland, 4 Russ. 298. 
 
 Although an infant can in general maintain a suit, yet he is incapable 
 of doing so without the assistance of some other person who may be re- 
 sponsible to the Court for the propriety of the suit, and who may be liable 
 for the costs. Such person is called his next friend, and if a bill be filed 
 on behalf of an infant without a next friend, the defendant may move to 
 have it dismissed with costs, to be paid by the solicitor. It is not neces- 
 sary that the next friend should be a relation of the infant, and although 
 an infant has a guardian assigned him by the Court, or appointed by will, 
 yet where he is plaintiff, the course is not to call the guardian by that 
 name, but to call him the next friend. 
 
 Any person being at liberty to institute a suit on behalf of an infant, it 
 sometimes happens that two or more suits are instituted in his name , by 
 different persons, each acting as his next friend ; in such cases the Court 
 will direct an inquiry as to which suit is most for his bene^t, and upon that 
 being ascertained, will stay the proceedings in the other suit, and it is a 
 motion of course that such a reference should be made. If upon the 
 inquiry the second suit be deemed the more proper to be prosecuted, and 
 the consequence is that there is one bill filed which it will be beneficial to 
 prosecute, and a second bill filed which will be more beneficial, the 
 ordinary practice is to stop the first suit, and to give costs to the next 
 friend, Starten v. Bartholomew, 6 Beav. 143. 
 
 If it be represented that a cause preferred in the name of an infant is 
 not for his benefit, the Court will order an inquiry concerning the pro- 
 priety of the suit ; and if upon such inquiry it is reported that the suit is 
 not for the benefit of the infant, either the proceedings will be stayed, or 
 else, if there be no excuse for the fact of the suit having been instituted, 
 the bill will be dismissed with costs to be paid by the next friend, and 
 where it appeared upon affidavits that the suit was commenced by the 
 next friend, not for the benefit of the infant, but to jftomote his own views, 
 the Court summarily and without an inquiry made such an order. Sale v. 
 Sale. 1 Beav. 586 ; Nalder v. Hawkins, 2 U. & K. 243. 
 
 The reference as to the propriety of the suit will not be made on the 
 application of the next friend himself, because the Court considers that 
 in commencing a suit, the next friend undertakes on his own part, that 
 the suit is for the benefit of the infant, Jones v. Powell, 2 Mer. 141. 3ut 
 this rule applies only to cases where an application is made for such in- 
 quiry in the cause itself; if there be another cause pending by which the 
 
ORDER 53. 145 
 
 infant's property is subject to the control of the Court, such an inquiry 
 is not only permitted, but is highly proper, when fairly and 6071a fid 
 made, and may have the effect of entitling the next friend to repayment 
 of his costs out of the infant's estate, even though the suit should turn 
 out unfortunate, and the bill be dismissed with costs, Taner v. hie, 2 Ves. 
 Sen. 466. 
 
 Although an infant defendant,.where his inheritance is concerned, has 
 in general a day given him after attaining twenty-one, to show cause, if he 
 can, againstjthe decree, an infant plaintiff has no such privilege, but is as 
 much bound by a decree in a suit on his behalf, as one of full age, Mor- 
 rison V. Morrison, 4 M. & 0. 216 ; Lord Brook v. Lord Hertford, 2 P. 
 Wnas. 519. Set.aT hd day fffi tZ^fuJ^ tz sAt^ ea/the. Cactus ^i^, ^'i(j 
 
 A person having filed a bill as next friend of aa infant, cannot with- 
 draw himself and substitute another next friend without a reference to 
 enquire whether it is for the benefit of the infant that such substitution 
 should take place, Melting o. Melling, 4 j^ad. 261 ; in general a next 
 friend will not be allowed to retire without giving security for the costs 
 already incurred. 
 
 When the next friend of an infaat dies pending the suit, the prope 
 course of proceeding is for the solicitor of the plaintifi^ to apply to the 
 Court for leave to appoint a new next friend in his stead ; and after such 
 appointment, the name of the new next friend slionld be made use of in 
 all the subsequent proceedings. If the plaintiff's solicitor omits to take 
 the step within a reasonable time, the Court will, upon motion or peti. 
 tion, approve of a new next friend, and notice of the order will be directed 
 to be given to the plaintiff's solicitor, Lancaster v. Thornton, Amb. 398 ; 
 Bracey v. Sandiford, 3 Mad. 463 ; and the proper order to move for, is 
 that a new next friend may be appointed in Chambers or by the Master, 
 not that the infant do name one, or the bill be dismissed, Glover v. Wib 
 ber, 12 Sim. 351. 
 
 The next friend of any infant sole plaintiff, should not take any step 
 in the cause, in the name of the plaintiff after the infant attains twenty- 
 one, Brown v. Weatherhead, 4 Hare, 122 ; for the infant may on attaining 
 his majority, abandon the suit. But if the infant adopt thej proceedings 
 after he comes of age, he becomes liable for all the costs of the suit. 
 
 53. No suit is to be dismissed by reason only of the 
 misjoinder of persons as plaintiffs therein. (3rd June, 
 1853; Ord. 31.) 
 
 This and the two following orders are a copy of the Imp. Act 15 & 1, 
 Vic. c. 86, s. 49. 
 
 As to misjoinder before this order, see Lambert v. Bulchinsort, 1 Bear. 
 Ill:, Fades v. Harris, 1 Y. & C. 0. C. 230. 
 
146 ORDERS 64 — 65. 
 
 These orders apply to plaintiffs not named, as where a shareholder files 
 a bill on behalf of himself and others, Clement v. Bowes, 1 Drew. 684 ; 
 but not where full justice cannot be done to the defendant in the absence 
 of the shareholders, Williams v. Salmond, 2 K. & J. 463. 
 
 As to misjoinder in a suit impeaching a settlement of accounts of an 
 association, see Stupart v. Arrowsmith, 3 Sm. & G. 176. 
 
 Bill dismissed where one only of ftie plaintiffs had an interest to 
 maintain the suit, and that interest was not claimed by the bill, Bar- 
 ton V. Barton, 3 K, & J. 512. As to misjoinder in a suit by some share- 
 holders to recover money wrongfully paid to defendants and other 
 shareholders, see Williams v. Page, 24 Beav. 654; as to parties to suits 
 by shareholders generally, see Carlisle v. South Eastern Railway, 1 Mac. 
 & G. 689. 
 
 A bill by a wife suing by her next friend in respect of her separate 
 estate is not demurrable, because the husband, having no adverse interest, 
 joins as a co-plaintiif, Beardmore v. Gregory, 2 H. & M. 491 ; but see 
 Hope V. Fox, IJ. 4; H. 456; Smith v. Etches, 1 H. & M. 558. See also as 
 to misjoinder, Evans v. Coventry, i Drew. 15 ; on appeal, 5 D. M. & G. 
 911, 918 ; Beechingv. Lloyd, 3 Drew. 227 ; Carter v. Sanders, 2 Drew. 248. 
 
 54. Wherever it appears to the Court that notwith- 
 standing the conflict of interest in the co-plaintiffs, or the 
 want of interest in some of the plaintiffs, or the existence 
 of some ground of defence affecting some or one of the 
 plaintiffs, the plaintiffs, or some or one of them, are or 
 is entitled to relief, the Court may grant such relief, and 
 may modify the decree according to the special circum- 
 stances of the case ; and for that purpose is to direct 
 such amendments, if any, as may be necessary ; and at 
 the hearing, before such amendments are made, may 
 treat any one or more of the plaintiffs as if he or they 
 were defendant or defendants in the suit, and the remain- 
 ing or other plaintiffs was or were the only plaintiff or 
 plaintiffs on the record. (3rd June, 1853 ; Ord. 31.) 
 
 55. Where there is a misjoinder of plaintiffs, and the 
 plaintiff who has an interest has died, leavihg a plaintiff 
 on the record without any interest, the Court may, at 
 the hearing of the cause, order such an amendment of 
 the record as may appear just, and proceed to a decision 
 

ORDER 56. 147 
 
 of the cause, if it shall see fit ; and give such directions 
 as to costs or otherwise as may appear just and expedient. 
 (3rd June, 1853 ; Ord. 31.) 
 
 56. Where, in any suit or other proceeding, it is made 
 to appear that a deceased person who was interested in 
 the matters in question has no legal personal represen- 
 tative, the Court may either proceed in the absence of 
 any person representing the estate of the deceased per- 
 son, or may appoint some person to represent such estate 
 for all the purposes of the suit or other proceeding, on 
 such notice to such person or persons, if any, as the 
 Court may think fit, either specially, or by public ad- 
 vertisement ; and the order so made, and any orders 
 consequent thereon, shall bind the estate of the deceased 
 person in the same manner in every respect as if there 
 had been a duly constituted legal personal represen- 
 tative of such person, and such legal personal represen- 
 tative 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. (3rd June, 1853 ; Ord. 30.) 
 {Imp. ^cn 5 (^ 16 V.c. 86, s. 44.) 
 
 To induce the Court to act under this order, it is necessary that the 
 interest of the deceased defendant in the matters in question in the suit 
 should be of little consequence, and that there should be difficulty in ob- 
 taining representation to his estate, Daniel's Chan. Pr. 197. This 
 order does not apply where parties have a beneficial and substantial in- 
 terest, but applies only to cases of mere formal parties, Sherwood v. Free- 
 land, 6 Grant, 305 ; Toronto Savings Sank v. Canada Life Assurance 
 Company, 13 Grant, lYl. 6 7^la.tJz't^s^c^.^O, 
 
 Thus, creditors under a trust deed for their benefit, may proceed against 
 the trustees without a personal representative of the deceased debtor, the 
 author of the trust, where no. such representative exists bud the estate is 
 insolvent, Chaffers v. Headlam, 9 Hare, App. 46 ; Davis v. JBoulcott, 1 Drew. 
 & Sm. 23 ; and where one of the executors of the testatrix in the cause 
 had died intestate and insolvent, and ineffectual attempts had been made 
 to obtain representatives to him, the Court allowed an administration 
 suit to proceed in the absence of such representation, Band u. Randle,, 
 2 W. R. 331. 
 
148 ORDER 57. 
 
 As a general rule the Court will incline to act under this order, when 
 the next of kin expressly refuses to administer, Haw v. Vickers, 1 W. E. 
 242; Tarrelt v. Lloyd, 2 Jur. N. S. SVl ; or pays no attention to a 
 notice calling on him to administer, IVhiteaves v. MelvUU, 5 W. B, 676 ; 
 or where the interests of the deceased are identical with those of the 
 plaintiff, Cox v. Taylor, 23 L. J. Ch. 910 ; Lons v. Storie, Kay. App. 12. 
 
 This order does not apply when the personal representative would have 
 active duties to perform, FowUr v. Bayldon, 9 Hare, App. 78 ; nor when 
 he would represent interests adverse to the plaintiff, Headden v. Emmott, 
 22 L. T. 166 ; Deanof Ely v. Gayford, 16 Beav. 561 ; Gibson v. Wills, 21 
 Beav. 620 ; nor where the object of the suit is to administer the estate of 
 the intestate, Silver v. Stein, 1 Drew, 295 ; Grove v. Lane, 16 Jur. 1061 j 
 James v. Aston, 2 Jur. N. S. 224 ; Donald v. Bather, 16 Beav. 26; Mc- 
 Lean V. Dawson, 2t Beav. 21 ; but see Jones v. Foulk, 10 W. R. 55. 
 
 Where the entire adverse interest is unrepresented, the Court will not 
 appoint a person to represent that interest, Gibson v. Wills, 21 Beav. 620 ; 
 Cox V. Stephens, H W. R. 929 ; and it will not under this order appoint 
 a person to receive a sum of money in Court, payable to a deceased per- 
 son, though the amount be small, Rawlins v. McMuhon, 1 Drew. 225 ; 
 Williams v. Mien, 32 Beav. 650 ; and where a representative has been 
 appointed in the suit, the Court will not order payment to him, but carry 
 the money to a separate account, Byam, v. Sutton, 19 Beav. 646. 
 
 As to cases where a will has been proved abroad, see Hewitson v. Tod- 
 hunter, 22 L. J. Ch. 76 ; Sutherland v. De Virenne, 2 Jur. N. S. 301 ; a de- 
 fendant in an administration suit died abroad, his executors having proved 
 his will at the place of his death, refused to prove it in England, an order 
 was made for appointment of a representative of the deceased, Bliss v. 
 Putnam, 1 Jur. N. S. 12. A person cannot be appointed to represent an 
 estate under this order, without his consent, Prince of Wales Co. u. Palmer, 
 25 Beav. 605. 
 
 The proper person to be appointed is the person who would be ap- 
 pointed administrator ad litem, Dean of Ely v. Gayford, 16 Beav. 561 . 
 
 As to authority conferred by administration ad litem, see Williams on 
 Exors. 433. 
 
 For the form of order under this order, see Heley v. Lord Bexley, 15 
 Beav, 340 ; Whittington v. Gooding, 10 Hare, App. 29. 
 
 57. Where questions arise between parties, who are 
 some only of those interested in the property respecting 
 which the question arises ; or where the property in 
 question is comprised with other property in the same 
 settlement, will, or other instrument, or is the properly 
 of an intestate, the Court may adjudicate on the ques- 
 

ORDERS 57—58- i4f 
 
 tions arising between such parties, without making the • 
 other parties interested in the property respecting which- 
 the question arises, or interested under the settlement^ , 
 will, or other instrument, parties to the suit ; and without , 
 requiring the whole trusts.and purposes of the seJflpnaent,.,, 
 will, or instrument, or the whole estate of the intefel^lev 
 to be executed or administered under the direction of 
 the Court, and without taking the accounts of the trustees 
 or other accounting parties, or ascertaining the particu- 
 lars or amount of the property touching which the 
 question or questions have arisen or of the whole estate. 
 or assets ; but where the Court is of opinion that the 
 application is fraudulent, or collusive, or that for some 
 other reason the application ought not to be entertained, 
 it may refuse to make the order prayed. (3rd June, 
 1853; Ord. 29.) (Imp. Act 15 <^ 16 V. c. 86, s. 51.) 
 
 This order applies to a petition under the Trustee Act, presented by 
 some only of the persons beneficially interested in a, trust fund, Re 
 Sharpley, 1 W. R. 271 ; and to a special case, Re Browne, 29 Beav. 401. 
 
 This order applies only when some of the persons interested in the 
 question at issue, in every point of view, are before the Court, Swallow 
 V. Binns, 9 Hare, App. 47. 
 
 The Court may direct the administration of one or vaoxi specific trusts 
 created by an instrument, without directing the performance of all, Par' 
 nell V. Hingston, 3 Sm. & G. 337 ; Prentice v. Prentice, 10 Hare, App. 23 ; 
 but the Court cannot make a decree for foreclosure or sale in the absence 
 of a party entitled to one third of the equity of redemption, Caddich v. 
 Cook, 32 Bear. 70. 
 
 A party will not be allowed to proceed with a case under this section 
 by striking out of the record the names of some of the defendants (who . 
 are out of the jurisdiction,) and proceeding with them, Lanham v. Pirie, 
 2 Jur. N. S. 1201. 
 
 A decree made under this order does not bind the absent parties, as 
 Ord. 6, s. 2, does when notice of the decree has been served upon them, 
 Doody V. Higgins, 9 Hare, App. 32. 
 
 58. It shall not be competent to a defendant to take an 
 objection for want of parties in any case to which the 
 seifen rules next hereinafter set forth apply. (3rd June, 
 1853 ; Ord. 6, s, 2.) 
 
150 ORDER 58. 
 
 As to proceeding against soma of several persons jointly and severally 
 liable, see Ord. 62. 
 
 As to cases in whicii a decree may be made saving tbe rigbts of absent 
 parties, see Ord. 65. 
 
 Rule I. — A residuary legatee, or next of kin, may have 
 a decree for the administration of the personal estate of 
 a deceased person, without serving the remaining resi- 
 duary legatees or next of kin. {Imp. Act 15 (^ 16 V. 
 c. 86, s. 42, r. 1.) 
 
 Rule 2 — A legatee interested in a legacy charged upon 
 real estate ; or a person interested in the proceeds of real 
 estate directed to be sold, may have a decree for the ad- 
 ministration of the estate of a deceased person, without 
 serving any other legatee or person interested in the pro- 
 ceeds of the estate. (Imp. Act 15 fy 16 V. c. 86, s. 42, r. 2. 
 
 Rule 3. — A residuary devisee or heir, may have the 
 like decree, without serving any co-residuary devisee or 
 co-heir. 
 
 Where residuary devisees who had died abroad before the institution 
 of the suit, were made parties in ignorance of their death, the suit may 
 be proceeded with without making their real representatives parties 
 Bateman v. Cooke, 1 W. R. 242. 
 
 As to making several of a numerous class represent the class both as 
 f laintiffs and defendants, see Bromley v. Williams, 32 Beav. 177. 
 
 Rule 4. — One of several cestuis que trust, under a deed 
 
 ■or instrument, may have a decree for the execution of 
 
 , the trust of the deed or instrument, without serving any 
 
 other of such cestuis que trust. {Imp. Act 15 S/- 16 V., 
 
 c. 86, s. 42, r. 4.) 
 
 Decree for the appointment of new trustees and conveyance of the 
 trust estate, in a suit by some of the cesluia que inist, and a direction to 
 serve the others with notice of the decree, Jones a. James, 9 Hare, 
 App. 80. 
 
 Money recovered from a trustee in a suit by cestui que trust to repair 
 breach of trust as to one share of the trast estate, McLsod v. Annesley, 16 
 Beav., 600. If the whole fund be not forthcoming owing to a breach of 
 
ORDERS 33 — 60. 151 
 
 trust, a party entitled to a moiety, although ascertained, oanuot sue for 
 .payment without making the person entitled to the other moiety a party, 
 Lenaghan v. Smith, 2 Phill., 301; Munch v. Coekerill, 8 Sim., 219. 
 Where cestuis que trust by their conduct have made themselves trustees, 
 they ought to be parties, Jesse v. Bennett, 6 D. M. & G., 609. Stran- 
 .gers who have aided in misapplying funds, held to be properly made par- 
 ties, Lund V. Blanchard, 4 Hare, 9. 
 
 Rule 3. —In all cases of suits for the protection of pro- 
 perty pending litigation, and in all cases in the nature of 
 waste, one person may move on behalf of himself, and of 
 all persons having the same interest. {Imp. Act \5 S/- 
 16 v., c. 86, s. 42, r. 5.) 
 
 Rule 6. — An executor, administrator, or trustee, may 
 obtain a decree against any one legatee, next of kin, or 
 cestui que trust, for the administration of the estate, or 
 the execution of the trusts. (Imp. Act 15 £/■ 16 V., c. 
 86, s. 42, r. 6.) 
 
 Before this rule a trustee might file a bill against one of several cestuis 
 ■que trust, to recover the trust securities without making the other cestuis 
 que trust parties, Bridget v. Hames, 1 Coll. 72. 
 
 Rule 7. —An assignee of a chose in action may insti- 
 tute a suit in respect thereof without making the assignor 
 a party thereto. 
 
 59. In all the above cases the Court, if it sees fit, 
 'may require any other person to be made a party to 
 the suit, and may, if it sees fit, give the conduct of 
 the suit to such person as it deems proper ; and may 
 make such order in any particular case as it deems just 
 for placing the defendant on the record on the same foot- • 
 ing in regard to costs as other parties having a common 
 interest with him in the matter in question. (3rd June, 
 1853; Ord. 6, s. 2.) {Imp. Act 15 (^ 16 V., c. 86, s. 42, 
 
 T. 7.) 
 
 60. In all the above cases the persons who, according 
 ^to the practice of the Court, would be necessary parties 
 
152 ORDERS 60—61. 
 
 to the suit, are to be served with an cffice copy of the- 
 decree (unless the Court dispenses with such service) 
 endorsed with the notice set forth in schedule A, hereun- 
 der written, and after such service, they shall be bound 
 by the proceedings in the same manner as if they had 
 been originally made parties to the suit ; and upon ser- 
 vice of notice upon the plaintiff, they may attend the 
 proceedings under the decree. Any party so served 
 may apply to the Court to add to, vary, or set aside the 
 decree, within fourteen days from the date of such ser- 
 vice. (3rd June, 1853; Ord. 6, s. 2.) 
 
 This rule as to serving parties applies to infants, Clarke v. Clarke, 20 • 
 L. T. 88; and to parties out of the jurisdiction, Chalmers v. Lawrie, 10 
 Hare, App. 27; Mayberry v. Brooking, 1 D. M. & G. 673; Strong v. 
 Moore. 22 L. J. Ch. 917. 
 
 By the endorsement to be made on the office copy of the decree, the 
 person served is notified that he must attend, or proceedings may be 
 taken in his absence ; no order for leave to attend is necessary. 
 
 In an administration suit by a residuary legatee, other residuary lega- 
 tees, served with notice of the decree- and having liberty to attend the 
 proceedings, will not be allowed their costs of attending the taking of 
 the awards, unless the plaintiff and the accounting defendant employ the 
 same solicitor, and in that case will be allowed one set of costs between, 
 them, Daubney v. Leake, 1 L. R. Eq. 495, 
 
 Persons who at the date of the decree had no interest in the suit can- 
 not be brought before the Court under this order, Colyer v. Colyer, 11 W. 
 E. 355. 
 
 Where a party served with an oiBce copy of the decree feels aggrieved 
 thereby, he should move upon notice for leave to present a petition in 
 the nature of a bill of review, Kidd v. Cheyne, 18 Jur. 84S ; he may appeal . 
 against the decree, Ellison v. Thomas, 1 D. J. & S. 18. 
 
 61. -In all suits concerning real or personal estate which 
 is vested in trustees under a will, settlement, or other- 
 wise, the trustees shall represent the persons beneficially 
 interested under the trust, in the same manner and to the 
 same extent as executors or administrators, in suits con- 
 cerning personal estate, represent the persons beneficially 
 interested in such personal estate; and in, such case it 
 shall not be necessary to make the persons beneficially 
 
6U^ JU-^ "• ^-->'* "^^ ^-y- '^^"^ ^- 
 
ORDER 62. 153 
 
 interested under the trusts parties to the suit ; but, on the 
 hearing, the Court, if it think fit, may order such persons, 
 or any of them, to be made parties. (3rd June, 1853; 
 Ord. 6, r. 7.) 
 
 On an application by a creditor in an administi'ation suit, for the sale 
 of real estate of the testator, the executors, to whom part of the real 
 estate was deTised, were held sufficiently to represent the parties inter- 
 ested in the real estate, for the purposes of motion ; and the order was 
 granted, with a direction that an office copy should be seryed on each of 
 the parties interested in the real estate, Stewart v. Hunter, 14 Gr, 132. 
 
 The operation of this rule is not confined to administration suits, 
 Fowler v Bayldon, 9 Hare, App. "78. But in applying it generally, the 
 Court will exercise the discretion given by the concluding clause, Tudor 
 V. Morris, 22 L. J. Ch. 1051 ; and see Dickson v. Draper, 11 Gr. S62 ; 
 Cropper v. Mellersh, 24 L. J. Ch. 430 ; Wilkins v. Reeves, 3 W. E. 305- 
 As to the distinction between infant and adult cestui que trusts, vide 
 Goldsmid v Stonehewer, 11 Jur. 199 ; 9 Hare, App. 38 ; and see Siffken v- 
 Davis, Kay, App. 21 ; Sale v. Kitson, 3 D. M. & G. 119 ; Hanman v. Riley, 
 9 Hare, App. 40. The rule does not apply where the trustees baye dis- 
 claimed, Young V. Ward, 10 Hare, App. 58. 
 
 If the bill be filed to set aside a settlement, the trustees do not suffi- 
 ciently represent their cestui que trust, Reed v. Prest, 1 K. & J. 183 ; 
 Rogers v. Rogers, 2 Grant, 137 ; Thomas v. 'Torrance, 1 Cham. R. 46 ; or, 
 where bill is against trustees by parties claiming adversely to cestui que 
 trusts, Cleveland v McDonald, 1 Grant, 415 ; and see Payne v. Parker, l> 
 L. R. Ch. 321, 
 
 Executors with power of sale are within this section, Shaw «. Harding- 
 ham, 2 W. R. 657 ; and devisees on trust subject to payment of debts 
 Smith V. Andrews, 4 W. R. 353. Where there was only an implied power 
 of sale in the executrix, she was held not a trustee under this order, Bol- 
 ton V. Siannard, 6 W. R. 570. 
 
 In a suit to redeem, ces tuis que trust of the mortgage money required 
 to be parties, Stansfleld v Hobson, 16 Beav. 189. New trustees of a fund 
 in Court to whom it had been assigned, necessary parties to a suit by an 
 encumbrancer of it, Nelson v Seaman, 1 D. F. & J., 368. 
 
 A friendly society which had no treasurer or board to represent it, and 
 had become insolvent, and long since ceased to exist, was held to be suf- 
 ficiently represented on the record by the trustees, Pare v. Cle^, 29 
 Beav. 589. 
 
 62- Where the plaintiff has a joint and several demand 
 against several persons, either as principals or sureties, it 
 shall not be necessary to bring before the Court, as par- 
 
154 ORDER 62. 
 
 ties to a suit concerning such demand, all the persons 
 liable thereto ; but the plaintiff may proceed against one 
 or more of the persons severally liable. (3rd June, 
 1853; Ord. 6, r. 8.) (Eng. Con. Ord. t, r. 2.^ 
 
 As to parties to a su t against trustees of a creditors' deed, see Batewan 
 V. Margerieson, 6 Hare, 496. Where the owner of an equity of redemp- 
 tion assigns it in trust for the benefit of creditors, the creditors are not 
 necessary parties to a bill of foreclosure, SAato v. Liddell, 1 0. C. L. J. 
 57 ; but the decree usually directs the master to notify some of the cre- 
 ditors of the proceedings in his office. 
 
 On a bill for redemption of property vested in trustees under an absolute 
 deed intended as a mortgage, one of the trustees being beneficially inter- 
 ested ; held, that the cestui que trusts were sufficiently represented, Kerr 
 V. Murray, 6 Grant, 343 ; on a bill by trustees to foreclose a mortgage 
 made for the benefit of creditors, the creditors are not necessary partiesi 
 Fraser v. Sutherland, 2 Grant 442. A suit charging breach of trust cannot 
 proceed in the absence of representatives of one of the trustees liable to 
 contribute, Devaynes v. Eobinson, 24 Bear. 86 ; and see Shipton v. Raw- 
 hns, 4 Hare, 619. 
 
 See as to proceedingrs against some only of the parties to a breach of 
 trust. May v. Selby, 1 Y. & C. Ch. 235; Phillipson v. Gatty, 6 Hare, 26; 
 Simes v. Eyre, 6 Hare, 13t ; Horsley v. Fawcett, 11 Bear. 565 ; Fowler v. 
 Reynal, 2 DeG. k S. 749. 
 
 This order applies to breaches of trust, Kellaway n. Johnson, 5 Beav. 
 -319 ; Ferry v, Knott, 5 Beav. 293 ; and to an information against public 
 trustees, Mtorney- General v. Pearson, 2 Coll. 581; Attorney- General v. 
 Corporation of Leicester , 7 Beav. 176. 
 
 Where a surety files a bill to set aside a bond, the principal and co- 
 surety are both necessary parties, Allan v. Houlden, 6 Beav. 148 ; sureties 
 cannot be sued without their principals, Pierson v, Barclay, 2 DeG. & S. 
 746 ; Lloyd v.- Smith, 13 Sim. 457 ; Seidler v. Sheppard, 12 6r. 456 ; Cock- 
 burn V. Gilespie, 11 Gr. 465 ; but plaintiff may elect against which of two 
 principals or which of two sureties he will proceed, Lloyi v. Smith, 7 
 Jur. 460 ; see Wilson v, Goodman, 4 Hare, 63. 
 
 This order does not allow a partnership debt to be recovered against 
 one partner's representative without making a surviving partner a partyi 
 Hill%v. McRae, 9 Ha. 297 ; Cox v. Stephens, 2 N. R. 506 ; but see Haig v. 
 Grey, 3 DeG. & Sm. 741 ; Thorpe v. Jackson, 2 Y. & C. 553. 
 
 Where a bill, besides charging surviving executor with breach of trust, 
 seeks account of personal estate of testator, personal representatives of 
 deceased executor must be parties. Biggs v. Penn, 9 Jur. 368 ; see re- 
 marks on this case, Shipton v. Rawlins, 4 Hare, 619. In an administra- 
 
ORDERS 63 — 65. 155 
 
 tion suit all persons liable mast be parties, Hall v. Austin^ 10 Jur. 462 ; 
 but where two classes of trustees committed breach of trust cestuit que 
 trust may proceed against one class only, McGachen v. Dew, 15 Beav. 84. 
 
 After a bill is filed against all the trustees it cannot, at th? hearing( be 
 dismissed by plaintiff against one of them, Fussel v. Elwin, 13 Jur. 333 ; 
 •and see London Gas Co. v. Spottiswood, 14 Bear. 264. 
 
 As to parties in respect of joint and several demands, see further 
 Mayor of Berwick v. Murray, 5 W. R. 208 ; Colby v. Hawkins, 6 Jur. 162 ; 
 Mclntyre v. Connell, 1 Sim. N. S. 252. 
 
 63. Where a bill is filed against a Corporation aggre- 
 gate, no officer of the Corporation is to be made a 
 defendant for discovery only ; but any officer who might 
 by the former practice have been made a defendant for 
 the purpose of discovery may be examined by the plain- 
 tiff in the same way as a party, after the answer of the 
 Corporation is filed, or after the time for filing the s ame 
 has expired. (20th Dec. 1865 ; Ord. 5.)i'4i2^.^i-J/ 
 
 64. Where a bill is filed by a Corporation aggregate 
 the defendant may, after filing his answer, examine for 
 discovery such officer of the- Corporation as would under 
 the former practice have been made a party defendant to 
 a cross bill filed for discovery. 
 
 65. Where a defendant, at the hearing of a cause, 
 objects that a suit is defective for want of parties, the 
 Court, if it thinks fit, may make a decree saving the 
 rights of the absent parties. 20th Dec. 1865; Ord. 15.) 
 
 Decree in the absence of the assignees of a bankrupt, Mayberry v. Brook- 
 ing, 7 D. M. <t G. 6l3 ; of the heir at law of a surviying trustee, Faulkner 
 V. Daniel, 3 Ha. 199 ; of a mortgagee, Fulton v. Clark, 1 DeG. & Sm. 307 ; 
 of a person entitled upon a remote contingency, Daubuz v. Peel, 1 Coop, 
 temp. Cottenham, 365. 
 
 The husband of a female plaintiff or defendant is not within the rule. 
 Jiussell V. Lucy, 18 L. J. Oh. 464: 
 
 As to making a decree on appeal, in the absence of some of the parties^ 
 see Goulder v. Oamm, 29 L. J. Ch. 135. 
 
156 ORDERS 66—68. 
 
 v.— PLEADINGS, AND WRITTEN PROCEEDINGS 
 GENERALLY. 
 
 66. Pleadings and all other proceedings in a cause 
 may be written or printed, or partly written and partly 
 printed ; and where wholly printed, dates and sums oc- 
 curing therein are to be expressed by figures instead of 
 words. (6th Feb. 1865; Ord. 1 and 2.) 
 
 Where the office copy of the bill served upon a defendant was not 
 printed in accordance with these orders, the service was set aside with 
 costs, Cossey v. Ducklow, 2 Cham. R. 227 ; 4 U. C. L. J. N. S. 17 ; although 
 the Registrar may have filed a bill not printed in accordance with the 
 orders of Court,' a motion to take the bill off the files for such non-com- 
 pliance may be made. Ibid. 
 
 67. All pleadings and other proceedings are to be 
 written or printed neatly and legibly on good paper, of 
 the size and form heretofore in use ; and if printed, the 
 same are to be printed with pica type leaded, and the 
 solicitor is not to be entitled to the costs of any pleading 
 or other proceeding which is not in conformity with this 
 Order ; and the Clerk of Records and Writs or Deputy 
 Registrar is to refuse to file the same. (6th Feb. 1865; 
 Ord. 3.) 
 
 By two English orders of 1660 and 1666, no plea, answer or affidavit is 
 to be filed in which there is any knife erasure, or which is blotted so as to 
 obliterate any word, or which is improperly written, or so altered as to 
 cause any material disfigurement, or in which there is any interlineation 
 of any word or words, unless the person before whom the same is sworn 
 duly authenticate such interlineation with his initials, in such manner as 
 to show that the interlineation was made before the plea, answer or affi- 
 , davit was sworn, and so as to mark the extent of such i:iterlineation. 
 These orders are in force here. 
 
 AfBdavit containing unauthenticated interlineation of Christian names 
 allowed to be filed, Vorweig v. Barweiss, 3 W. R. 259 ; erasures in recital 
 of contents of exhibit held immaterial, Savage v. Hutchinson, 24 L. J. 
 Ch. 232. 
 
 68. Every bill, answer and petition filed, and every 
 affidavit to be used in any cause or matter, is to be 
 
ORDER 69. 157 
 
 divided into paragraphs, and every paragraph numbered 
 consecutively, and, as nearly as maybe, is to be confined 
 to a distinct portion of the subject. No costs are to be 
 allowed for any bill, answer, petition or affidavit, or part 
 of any bill, answer, petition or affidavit, substantially 
 violating this order ; nor shall any affidavit violating 
 this order be used in support of, or opposition to, any 
 motion, without the express permission of the Court. 
 (13th April, 1859; Ord. 4.) 
 
 69. If upon the hearing of a cause or matter the Court 
 is of opinion that any pleading, petition, or affidavit, 
 or any part of such pleading, petition, or affidavit is 
 scandalous, the Court may order such pleading, petition 
 or affidavit to be taken off the file, or may direct the 
 scandalous matter to be expunged, and is to give such 
 direction as to costs as it may think right. (23rd Dec. 
 1857 ; Ord. 3, s. 9.) 
 
 Nothing is scandalous that is relavant to the merits, Fenhoulet v. Passa- 
 vant, 2 Ves. Sen. 24; Lord St. John v. Lady St. John, 11 Ves. 526 ; Coffln 
 V. Cooper, 6 Ves. 514 ; Mnon, 1 M. & G. ITS ; Everett v. Prythergh, 12 
 Sim. 363 ; 6 Jur. 3. Bill containing scandalous matter ordered to be 
 taken oflf the file, by consent of all parties, Makepeace v. Romieux, 8 W. 
 R. 687 ; Clifton v. Bentall, 9 Beav. 105. Scandalous affidavit taken off 
 the file, Goddard v. Parr, 24 L. J. Ch. '783 ; scandalous matter expunged. 
 Pe Bailey's Settlement, 3 W. R. 133. ' 
 
 Costs of exceptions for scandal are in the discretion of the Court, but 
 usually follow the result ; and such costs are payable immediatly, Morgan 
 if Davey, 21; and as between solicitor and client, Ex parte Thorp, 1 Ves, 
 394 ; ex parte Porter, 2 M. 4r A. 220. 
 
 An afSdarit in bankruptcy taken off the files, as scandalous and im- 
 pertinent, with costs against the solicitor who made it, as between 
 solicitor and client. Ex parte Simpson, 15 Ves. 4'76 ; counsel and agent 
 held liable for costs on account of scandal and impertinence, Rattray v. 
 George, 16 Ves. 232; and see Bishop v. Willis, 5 Bear. 83. 
 
 As to what will be considered impertinence, see Davis v. Cripps, 2 Y. 
 & 0. C. C. 435; Tench v. Cheese, 1 Beav. 571; Byde v. Masterman, Or. <fe 
 Ph. 265; Langley V. Fisher, 10 Sim. 345; Attorney -General v. Foster, 2 
 Ha. 81 ; Devaynes a. Morris, 1 M. k C. 213 ; Woods v. Woods, 10 Sim. 
 
 197. Ci\ij^ P. fAfu-./u', /y'c<AL ^i^in, /i^-?/, ^. 
 
158 ORDERS 70 — 71. 
 
 Affidarits referred for impertinence, Keeling v. Hosking, 2 Ross. SIS^- 
 Bickford v. Skewes, 9 Sim. 428; Re Burton, 1 Ruse. 380. 
 
 70. A motion to have any pleading, petition, or affi- 
 davit taken off the file for scandal, or to have the scan- 
 dalous matter expunged, may be made at any time before 
 the hearing of the cause or matter. (23rd. Dec. 1857 ; 
 Ord. 3, s. 10.) 
 
 Where an answer is in the opinion of the Conrt prima facie scandalous 
 on its face, the onus rests with the party filing it to shew its relarancy to 
 the question raised by the bill, RutUm v. Smith, 1 Cham. R. 184 ; filing a 
 replication waives all irregularities in an answer, but does not waive 
 scandal therein, Ibid. 
 
 The plaintiff and his counsel ordered to pay costs for a scandalous 
 bill, Emerson v. Dallion, 1 Ch. Rep. 194. 
 
 71. If upon the hearing of a cause or matter, the Court 
 is of opinion that any pleading, petition, or affidavit is 
 of unnecessary length, the Court may either direct pay- 
 ment of a sum in gross or in lieu of taxed costs therefor, 
 or it may direct the taxing officer to look into such plead- 
 ing, petition, or affidavit, and to distinguish what part or 
 parts thereof is or are of unnecessary length, and to as- 
 certain the costs occasioned to any party by any unneces- 
 sary matter, and the Court is to make such order as it 
 thinks just, for the payment, set-off, or other allowance 
 of such costs, by the party or his solicitor. (23rd Dec. 
 1857; Ord. 3, s. 11.) 
 
 Under the common order to tax the taxing ofiBcer does not look into 
 pleadings to distinguish what parts are unnecessary, unless directed. Re 
 Farrington, 33 Beav. 346. For form of direction to taxing oflScer, see 
 Burchall v. Giles, 11 Beav. 34; Woods v. Woods, 5 Ha. 229 ; -Re Bedmin- 
 ister Charities, 12 Jur. 665 ; Hanslip v. Kitton, 8 Jur. N. S. 835. 
 
 The direction to the taxing officer is itself an intimation that the Court 
 considers the pleading or affidavit of unnecessary length, Re Skidmore, 
 1 Jur. N. S. 696. For instances of unnecessary length in pleadings, see 
 Bydev. Master-man, Cr. & Ph. 265 ; Tench v. Cheese, 1 Beav. 5Yl ; Norway 
 ■v.fiowe, 1 Mer. 347 ; Davis v. Cripps, 2 Y. & 0. C. C. 435 ; Jttorney-Gen- 
 eral v. Foster, 2 Ha. 81 ; Scottish Union Insurance Company v, Steele, 9 L. 
 T. N. S. 677 ; and in petitions. Re Manchester and Leeds Railway Com- 
 
ORDERS 72 — 74. 169 
 
 pany, 8 Ha. 31 ; Re Oourtois Will, 10 Ha. App, 64 ; Hyder v. Coleman 
 21 L. J. Ch. 592 ; Re Wills, 12 W. R. 91; Canning v. Bell, 13 L, J. Oh., 
 304; Moore V. Smith, 14 Beav. 396. 
 
 72. All the pleadings in any cause must be filed at the 
 same ofBee. (3rd June, 1853 ; Ord 44, s. 2.) 
 
 73. Every paper to be filed in the office of the Clerk 
 of Records and Writs is to be distinctly marked at or near 
 the top "or upper part thereof on the outside, with the 
 name of the City or Town in which the bill is filed. 
 And the Clerk of Records and Writs is not to file any 
 paper which is not so marked, (1st April, 1867 ; Ord. 1.) 
 
 VI.— BILLS. 
 
 74. A bill of complaint is to be in the form of a peti- 
 tion, addressed, " To the Honourable the Judges of the 
 Court of Chancery." It must contain : 
 
 1. The name and description of each party com- 
 
 plainant ; 
 
 2. The name of each party defendant ; 
 
 3. The name of the place at which witnesses are in- 
 
 intended to be examined ; 
 3. A statement of the plaintiff"'s case in clear and 
 concise language ; 
 4. A prayer for the specific relief to which the plaintiff 
 supposes himself entitled ; but the prayer for 
 general relief may be added. (3rd June, 1853 ; 
 Ord. 9, s. 1 ; 10th Jan. 1863 ; Ord. 5.) 
 
 Bills may be written or printed, or partly written and partly printed • 
 and where wholly printed dates and sums are to be expressed by figures 
 instead of words, Ord. 66. 
 
 As to the kind of type in which bills are to be printed, see Ord. 67. 
 
 They must be divided into paragraphs, each of which is to be confined 
 as nearly as may be, to a distinct portion of the subject ; the paragraphs 
 must be numbered consecutively, and no costs are to be allowed for any 
 bill which does not comply with these requirements, Ord. 68. 
 
160 ORDERS 75—77. 
 
 The plaintiff's abode and description must be stated accurately, that the 
 defendant may know where to resort to compel obedience to any order 
 of the Court, and to enforce payment of any costs awarded against the 
 plaintiff. 
 
 On a motion to take a bill off the files for irregularity, the description 
 of the plaintiff being omitted, leare was given to amend on payment of 
 costs, Hill V. Maguire, V. C. Esten, 7th Feb. 1862 ; on a motion for secu- 
 rity for costs, on the ground that plaintiff's address was omitted, leave 
 given to amend, Dick v. Munden, 13 W. E. 1013. 
 
 A plaintiff who gives a fictitious address, or whose residence cannot 
 be found will be ordered to give security for costs, Sandy v. Long, t Sim. 
 140; 2 M. & K. 487; and see Calvert v. Day, 2 Y. & C. Ex. 217. 
 
 The abode and description of the next friend of an infant or married 
 woman, must be stated in the bill. Major v. Amott, 2 Jur. N. S. 80. 
 
 The word " bill " includes information, Ord. T. 
 
 The Attorney-General must sign and sanction an information before it 
 is filed or amended, Attorney-General v Fellowes, 1 J. & W. 2'54 ; Attorney- 
 General V. The Toronto Street Railway Co. 2 Cham. R. 162. 
 
 A bill improperly filed without the client's sanction, will be ordered to 
 be taken off the files with costs to be paid by the solicitor, Jerdein v. 
 Bright, 10 W. R. 380 ; Re Thompson, 25 Beav. 245 ; as to bill filed in the 
 name of a company but without their sanction, see East Pant dc. Mining 
 Co. V. Merryweather, 13 W. R. 216. 
 
 75. In the cases enumerated in schedule B hereunder 
 written, the bill of complaint may be in the form, or to 
 the efi'ect, set forth in that schedule as applicable to the 
 particular case ; and, in cases not enumerated in that 
 schedule, forms of pleading similar in principle may be 
 adopted whenever a more detailed statement is not neces- 
 sary for the full development of the case. (3rd June, 
 1853; Ord. 9, s. 1.) 
 
 76. A bill of complaint is not to contain any interro- 
 gatories ; all merely formal parts, except the address and 
 conclusion, ar,e to be omitted ; and the signature of coun- 
 sel is unnecessary. (3rd June, 1853 ; Ord. 9, s. 1.) 
 
 77. A bill of complaint may be filed either with the 
 Clerk of Records and Writs or with a Deputy Registrar, 
 at the option of the plaintiff; and the filing of a bill of * 
 

OKDER 78. 161 
 
 complaint shall have the same effect as the filing of a bill 
 and the issuing of a subpoena to appear and answer for- 
 merly had. (3rd June, 1853; Ord. 9, s. 2.) 
 
 All the pleadings are to be filed in the same ofiice, Ord. 72 ; but all 
 affidavita in support of, or in opposition to any special motion or petition, 
 must be filed with the Clerk of Records and Writs, Ord. 260. 
 
 The name or firm and place of business of the solicitor or solicitors' 
 filing any bill must be endorsed thereon, and if the solicitor is acting as 
 agent only, then the name or firm and place of business of the principal 
 solicitpr must also be endorsed, Ord. 40. 
 
 The filing of a bill, or the taking of a proceeding, in which bill or pro- 
 ceeding any title or interest in land is brought in question, shall not be 
 deemed notice of the bill or proceeding to any person not a party thereto, 
 until a certificate by the Registrar or a Deputy Registrar of the Court has 
 been registered in the Registry Office of the County in which the land is 
 situated ; but no certificate is required to be registered of a suit or pro- 
 ceeding for the foreclosure of a registered mortgage, Con. Stat. U. C. 
 c. 12, s. 64. As to Us pendens, see Anon, 1 Veru. 318 ; Bishop of Win- 
 chester V. Payne, 11 Ves. 194; Bellamy v. Sabine, 1 D. & J. 566. To 
 affect a man with a lis pendens there ought to be a continued prosecution, 
 Preston v. Tubbin, 1 Tern. 286; Kinsman v. Kinsman, 9 L. J. Ch. 276. 
 
 As to effect of filing a bill in saving Statute of Limitations, see Coppin 
 i). Gray, 1 Y. <& Ci C. 0. 205 ; Foster v. Thompson, 4 Dru. & War. 303 ; 
 Boyd V. Higginson, F. & K. 603 ; Bampton v. Birchall, 5 Beav. 67 ; Dixon 
 0. Gay fere, 17 Beav. 421. 
 
 Where a certificate of lis pendens has been registered and the bill is 
 afterwards dismissed, it is not necessary to obtain an order discharging 
 the certificate of lis pendens from the registry ; the registration of the 
 decree dismissing the bill being sufficient for all purposes. Dexter v. Cos- 
 ford, 1 Cham. R. 22. 
 
 78. Orders of course to amend a bill of complaint may 
 be obtained at any time before answer, upon precipe. 
 (3rd June, 1853; Ord. 9, s. 2.)Sc^ S^^-c^^ 34,4., 34^8. 
 
 Where plaintiff amends not requiring further answer, that should be 
 stated in the order to amend, Boddington v. Woodley, 9 Sim. 380. 
 
 After the order is made and before service of it, the defendant may file 
 a demurrer, Price v. Webb, 2 Hare, 515. Plaintiff is not by omitting to 
 amend within the fourteen days, precluded from obtaining a fresh order, 
 Nicholson 1). Peile, 2 Beav. 497; and there may be any number of such 
 orders before answer, Wharton v Swann, 2 M. & K. 362. 
 
162 ORDERS 79—81. 
 
 79. Service upon a defendant of an order of course to 
 amend before answer, may be dispensed with upon an 
 application ex parte,-where the Court is satisfied that such 
 an order may be made without prejudice to the defeur 
 dant's rights ; and where service upon a defendant of an 
 order to amend is dispensed with, the cause as to such 
 defendant is to proceed as ii the bill had been originally 
 filed in the amended form. (3rd June, 1853; Ord. 9, 
 s. 10.) 
 
 80- An order to amend the bill, for the purpose of 
 rectifying a clerical error in names, dates, or sums only, 
 may be obtained at any time upon precipe. (3rd June, 
 1853; Ord. 9, s. 11.) 
 
 Leave given to amend a bill by striking out a, defendant's maiden 
 name without re-serving the bill, Barnes v. Ridgway, I Sfm. & G. 
 App. 18. 
 
 Amendments under this section render inoperative an order to take a 
 bill, ^ro confesso, Weighiman v. Powell, 2 DeG. & S. 570. 
 
 An order of course may be obtained after replication to amend by 
 adding parties where no new issue is thereby tendered, Brian v. Waisiell, 
 Kay, App. 4T ; Brattle v. Waterman, 4 Sim. 125 ; and see Johnson v. Cowan, 
 2 Cham. R. 13. 
 
 81. One order of course to amend the bill, as the plain- 
 tiff may be advised,- may be obtained by the plaintiff 
 upon precipe, at any time before filing the replication, 
 and within four weeks after the answer, or the last of 
 several answers, has been filed ; but no further order of 
 course for leave to amend the bill is to be granted after 
 an answer has been filed, except in the case provided 
 for by Order 80. (3rd June, 1853 ; Ord. 2, s. 12.) 
 
 Under the common order to amend the plaintiff cannot entirely change 
 the nature of the bill, Smith v. Smith, Geo Coop. 141; nor amend a bill for 
 discovery, by praying relief, Butterworih v. Bailey, 15 Ves. 358. Where 
 a bill was filed by a mortgagee to foreclose a mortgage, a motion to 
 amend by impeaching a conveyance made by the mortgagor to his son as 
 fraudulent and void was refused, Crawford v. Bradburn, 1 Cham. R. 280. 
 
 The name of a defendant cannot be struck out after he has answered 
 

ORDER 81. 163 
 
 ■except upon payment of costs. The common form of order giying defen- 
 dant leave to amend as lie may be advised, does not authorize a plaintiff 
 to strike out the name of a party on the rcfcord. 
 
 The name of a plaintiiF may be struck out before answer under an order 
 of course, but if any of the defendants have answered there must be a 
 special application for leave to do so, as the defendants' security for costs 
 is thereby lessened, Fellowes v. Deere, 3 Beav. 353. 
 
 If one of several defendants has put in his answer, the plaintiff cannot 
 have more than one order of course to amend, Buncombe v. Lswis, 10 
 Beav. 273 ; Bainbrigge v. Saddeley, 12 Beav. 152; Winthrop v. Murray, 1 
 Hare, 150. 
 
 Adding a defendant is an amendment within this order, and any fur- 
 ther order can be obtained only upon special application, Attorney-Gen- 
 eral V. Nethercoat, 2 M. & C. 604. Amendment by order of course, after 
 special order to amend irregular, Edge v. Duke, 10 Beav. 184. The 
 irregular amendment of a bill is not a ground for taking it off the file, if 
 it can be restored to its original state, Attorney- General v. Cooper, 3 M. 
 & C. 258. 
 
 The expression " the last of several answers," means the last of the 
 several answers filed by several defendants, Dalton v. Hayter, 1 Beav. 
 686; Lester v. Archdale, 9 Beav. 156 ; and not the last answer filed at the 
 time of applying for the order, Arnold u. Arnold, 9 Beav. 206 ; Collett v. 
 Preston, S .Mao. & G. 432. 
 
 An order to amend obtained, but not served, is no answer to a motion 
 to dismiss, Jones v. Lord Charlemont, 12 Jur. 389 ; but an order to amend 
 obtained and served after a defendant had given notice of motion to dis- 
 miss, held an answer to the motion, but plaintiff to pay the costs of the 
 motion, Peacock v. Sievier, 5 Sim. 653; Waller v. Pedlington, 4 Beav. 
 124. 
 
 An enlargement of the time, for taking out an order to amend may be 
 given, but solicitor's misconduct or inadvertence not a ground for allow- 
 ing further time, Clarke v. Mayor of Derby, 10 Jur. 978; setBowenv. Tur- 
 ner, 1 Cham. R. 268. 
 
 If an order be made at the hearing for the cause to stand over with 
 liberty to amend by adding proper parties, and apt words to charge them, 
 or to show that other persons are not necessary, the plaintiff cannot intro- 
 duce any charge against the original defendants which is not necessary 
 to explain the atnendments, Gibson v. Ingo, 5 Hare, 156 ; Chisholm. v. Shel- 
 don, 1 Grant, 294. And he is not allowed, in addition to adding parties 
 or co-plaintiffs, to introduce new statements and charges in the bill re- 
 lating to such co-plaintiffs, Hichens v. Congreve. 1 Sim. 500 ; Milligan v. 
 Mitchell, 1 M. & C. 433. 
 
 If the bill be amended by adding parties, after witnesses have been 
 examined, the depositions of such witnesses cannot be read against the 
 new parties, Pratt v. Barber, 1 Sim. 1. 
 
164 ORDERS 82 — 83. 
 
 A motion for an iDJanction held abandoned by amending the bill pend- 
 ing the motion, Gouthwaife v. Rippon, 1 Beav. 54 ; Monypenny v. Dering, 
 1 yr. E. 99 ; Macdonell v. Street, 13 Grant, 168 ; and see Davy v. Davy, 2 
 Cham. E. 81 ; where a motion for leave to amend without prejudice to a 
 pending motion for an injunction was refused, the amendments being 
 material. 
 
 And where a motion for injunction stood over, and before it was again 
 brought on the plaintiff amended the bill by adding parties necessary to 
 the suit for the purpose of obtaining the relief sought, and in the absence 
 of whom the relief would not have been granted, and again brought on 
 the motion without giving a fresh notice, the Court, on the objection be- 
 ing taken, refused to hear the motion, Westacott v. Cockerline, 13 Grant> 
 159. 
 
 An order to amend without prejudice to an injunction already obtained, 
 may be obtained on precipe when the plaintiff is otherwise entitled to an 
 order of course to amend, Evans u. Root, 1 Cham. R. 357 ; but see 
 Alton eg- General v. Marsh, 16 Sim. 572. 
 
 82. A plaintiff may move ex parte for leave to amend 
 the bill, without prejudice to an order to take the bill 
 pro confesso or to the entry of a note that the defendant 
 is in default for want of an answer ; and where the Court 
 is satisfied that the rights of the defendant will not be 
 prejudiced by such order, it may direct the same accord- 
 ingly. (3rd June, 1853 ; Ord. 13, s. 8.) 
 
 Unless leave to amend is asked for and obtainad under this section, the 
 order pro confesso is discharged by the amendment, even though it is only 
 to correct a clerical error, Weightman v. Powell, 12 Jur. 958; and see 
 Thrasher v, Connolly, 1 Grant, 422. 
 
 Where the plaintiff had obtained an order pro confesso against one of 
 the defendants, and afterwards applied to amend by adding parties with- 
 out prejudice, the motion was refused, Herchmerv. Benson, 1 Grant, 92. 
 
 Where an order to amend was taken out, but through inadvertence, not 
 without prejudice to an order pro confesso previously obtained, the Court 
 thinking the case a proper one in which to have granted the order to 
 amend without prejudice in the first instance, granted the order nunc pro 
 tunc, so as to revive the order pro confesso, Buttan v. Smith, 1 Cham. R. 
 296. . 
 
 83. A plaintiff having obtained an order to amend his 
 bill, is to amend within fourteen days from the date of 
 he order; otherwise the order to amend becomes void^ 
 
ORDERS 84 — 86. 165 
 
 and the case as to dismissal stands in the same situation 
 as if the order had not been made. (3rd June, 1853 ; 
 Ord. 9, s. 13.) 
 
 This section applies to an amendmeut effected by special leave, Crid- 
 land V. Lord De Mauley, 2 DeG. & S. 660; and includes cases where 
 liberty is given to amend upon the allowance of a demurrer, Bainbrigge- 
 V. Baddeley., 12 Beav. 152 ; Jlrmstead v. Durham, 11 Beav. 422. 
 
 The plaintiff having submitted to % demurrer, obtained an order to 
 amend, but did not do so within the time limited ; he then obtained a 
 second order of course to amend, and no answer being filed, a motion to 
 discharge the second order was refused, Nicholson v. Peile, 2 Beav. 49 T. 
 
 An order to amend avoids an order pro confesso previously obtained, 
 unless on an ex parte application, the Court gives leave to amend with- 
 out prejudice to the order pro confesso, Ord. 82 ; and it has this effect 
 ■even if the amendment be to correct a clerical error, Weightman v. Pow- 
 ell, 12 Jur. 958. 
 
 After an injunction had been obtained by a sole plaintiff, and the bill 
 amended by adding a co-plaintiff, it was held that the injunction was 
 gone by the amendment, Attorney-General v. Marsh, 16 Sim. 572; and 
 making an amendment pending a motion for an injunction, is an aban- 
 donment of the motion, Monypenny v. Bering, 1 W. R. 99 ; Gouthwaite v. 
 Rippon, 1 Beav. 54. 
 
 84. Where the case for relief made by a bill is a case 
 of actual fraud, and the evidence, though failing to estab- 
 lish the fraud charged, yet shews some other ground on 
 which the plainiifl is entitled to relief, the Court is, at 
 the hearing, to have the same discretion as in other cases 
 to allow an amendment, and to grant relief according to 
 the truth of the case. (20th Dec, 1865 ; Ord. 17.) 
 
 85. No bill is to be filed for discovery merely, except 
 in aid of the prosecution or defence of an action at law. 
 ,(3rd June, 1353; Ord. 9, s. 19.) 
 
 VII. SERVICE OF BILLS. 
 
 86- In lieu of serving a defendant with a subpoena to 
 appear and answer, an office copy of the bill of complaint 
 is to be served upon him, with an endorsement thereon 
 
166 ORDER 87. 
 
 in the form, or to -the effect set forth in schedulb C here^ 
 under written. (3rd June, 1853 ; Ord. 9, s. 3.) 
 
 87. Service upon a defendant of an office copy of the- 
 bill of complaint is to be effected in the same manner, 
 and shall have the same effect as the service of a writ of 
 subpoena to appear and answer under the former prac- 
 tice ; but it shall not be necessary to produce the original 
 bill. (3rd June, 1843 ; Ord. 9. ss. 2^& 4.) 
 
 It is not essential that the service should be personal, but it may be ef- 
 fected by leaying the office copy with a grown up person at the defend- 
 ant's place of abode. The person so served must be an inmate of the 
 house, Edgson v. Edgson, 3 DeG. ^ S. 629 ; Elliott v. Beard, 2 Cham. R- 
 80. 
 
 If the service is'not personal, the plaintiff cannot, in default of an an- 
 swer, take the bill pro confesso as of course, but must serve the defendant 
 personally with a notice of motion for such an order, Ord, 101. 
 
 A solicitor may accept service on behalf of the defendant, and in that 
 case it is not necessary to serve the defendant personally with a notice of" 
 motion for an order to take the bill pro confesso, but the usual two days 
 notice mast be served upon the solicitor, Roas v. Hayes, 6 Grant, 277 ; but 
 where the solicitor gave an undertaking to put in an answer, or in default 
 that the plaintiff might proceed to take the bill pro confesso without far- 
 ther notice being given, the order was made on an ex parte application. 
 Peterborough V. Conger, 1 Cham. R. 18. No order is now necessary, the 
 acceptance of service and undertaking to answer by a solicitor being 
 equivalent to personal service, Ord. 47 ; so a note may be entered under 
 Order 104. 
 
 For the mode of effecting service upon corporations, see Ords. 91 <fe 92, 
 
 Where the subpcena was enclosed in a letter which the defendant ad- 
 mitted he had received, it was held insufiSoient, Gathercole v. Wilkinton, 
 1 DeG. & Sm. 681 ; but service of a copy of the bill was held sufficient 
 where the defendant admitted he received it by post. Burton v . Shaw, 10 
 L. T. N. S. 292 ; and see Keachie v. Buchanan, 2 Cham. R. 42. 
 
 Service on the husband is good service on the wife, Holcombe v. Trotter, 
 9 Jur. 637 ; Gee v. Cottle, 3 M. & C. 180 ; Steele v. Plomer, 1 Mac. & G. 
 92 ; Bunn v. Barclay, 1 Cham. R. 264. 
 
 . The Court has refused to grant leave to substitute service on the med- 
 ical officer of an asylum, where a lunatic defendant is confined, Morgan 
 V. Jones, 4 W. R. 381 ; but see RePaton, 1 Cham. R. 192, where personal 
 service on the lunatic of the petition to have him declared a lunatic was 
 dispensed with, he beiag. suicidal.. 
 

^"ur^A^ fL-Lsvii—f] <Pxc.<^c* 6^-i^ ti v-rt . ^ J. Z o S- , 
 
ORDERS 88—90. 167 
 
 Service on the Deputy Governor of a gaol where the defendant is a 
 prisoner is good service, Newenham v. Pemherttm, 2 Coll. 54 ; service on 
 one of two partners is not good service on the other, Young ». Qoodaon^ - 
 2 Russ. 265. 
 
 88. A defendant who has been served with an office 
 copy of a bill of complaint within the jurisdiction of the 
 Court, is to answer or demur to an original bill, or bill 
 amended before answer, within one month after the ser- 
 vice of the office copy of the original or amended bill, as 
 the case may be. (3rd June, 1853 ; Ord. 12, s. 2.) 
 
 Th« word "month" means lunar month. 
 
 An application for further time to answer is not of course, but must be 
 supported by affidavit, Brown v. Zee, llBeav. 162 ; a,niseeJBi/ngv. Clarkl 
 13 Beav. 92 f Tark Sf Midland Railway Co. v. Hudion, 13 Bear. 69, 
 
 On an application for leave to answer after the bill has been taken pro 
 eonfeaio, the proposed answer must be produced duly sworn, Merril v. 
 Mlit, 1 Cham. B. 268 ; London v. London^i Cham. R. 40. 
 
 After service of a bill on a defendant, the plaintiff cannot dismiss his 
 bill on precipe without costs, even though no answer has been filed, 
 Ooole V. Macbeth, 1 Cham. R. 200. 
 
 89. Where a plaintiff amends his bill after answer, a 
 defendant desiring to answer the same is to put in his 
 answer thereto within seven days after service of the bill 
 as amended. (3rd June, 1853 ; Ord. 12, s. 2.) 
 
 90. The time within which a defendant served out 
 of the jurisdiction of the Court with an office copy of a 
 bill of complaint shall be required to answer the same, or 
 demur thereto, is as follows : 
 
 1. If the defendant is served in the United States of 
 America, in any city, town, or village within 
 ten miles from Lake Huron, the River St. Clair^ 
 Lake St. Clair, the River Detroit, Lake Erie, 
 the River Niagara, Lake Ontario, or the River 
 St. Lawrence, or in any part « f Lower Canada 
 not below Quebec, he is to answer or demur 
 within six weeks after such service. 
 
168 ORDER 91. 
 
 2. If served within any State of the United States of 
 
 America not within the limits above described, 
 other than Florida, Texas, or California, he is 
 to answer or demur within eight weeks after 
 such service. 
 
 3. If served within any part of Lower Canada below 
 
 Quebec, or in Nova Scotia, New Brunswick, or 
 Prince Edward Island, he is to answer or demur 
 within eight weeks after such service. 
 
 4. If served within any part of the United Kingdom, or 
 
 of the Island of Newfoundland, he is to answer 
 or demur within ten weeks after such service. 
 
 5. If served elsewhere than within the limits above de- 
 
 signated, he is to answer or demur within six 
 calendar months after such service. (10th Jan., 
 1863 ; Ord. 1.) 
 
 Where there was an inconsistency between the endorsement of the bill 
 and the order allowing foreign service, the Court refused to grant an or- 
 der pro confesso, James v. Wertheimer, 5 U. C. L. J. 163. 
 
 91. Service of a bill of complaint within the jurisdic- 
 tion of the Court upon a corporation aggregate, is to be 
 effected by personal service of an office copy thereof on 
 the warden, reeve, mayor or clerk, in case of a municipal 
 corporation, or on the president, manager or other head 
 officer, or the cashier, treasurer, or secretary, at the head 
 ofBce, or at any branch or agency in Ontario, or on any 
 other person discharging the like duties, in the case of 
 any other corporation. 
 
 The order permitting the service of the bill upon the agent of a corpo- 
 ration aggregate does not authorize service upon agents of corporations 
 within Upper Canada, Campbell v. Taylor, 1 Cham. R. 2 ; 11 the head office 
 of the corporation is situated within Upper Canada service must be 
 effected there ; if without, at any agency, Howland v. Orierson, 5 U. C, 
 L. J. 19. 
 

ORDERS 92—96. 169 
 
 92- Where a foreign corporation aggregate, defendant- 
 to a bill of complaint, has no branch or agency in Onta- 
 rio, service of the bill upon such corporation may be 
 effected, out of the jurisdiction by personal service of an 
 office copy thereof on the warden, reeve, mayor, clerk, 
 president, manager, or other head officer, or on the cashier, 
 treasurer, or secretary of such corporation, or other person 
 discharging the like duties, as in the case of service in 
 Ontario. 
 
 93. The service of a bill within the jurisdiction of the 
 Court is to be of no validity if not made within twelve 
 weeks after the filing of the bill. (6th Feb., 1865 ; Ord. 
 5.) 
 
 The Court will not grant an order extending the time for service ; the 
 plaintiff must use due diligence to effect service, and after it is effectedi 
 come to the Court to get it allowed, Munn v. Glass, 1 Cham, S. 337. 
 
 Where a bill had been filed, and a certificate of lis pendens registered, 
 but no office copy served within the twelve weeks, the bill was dismissed 
 with costs, SomervHh v. Kerr, 2 Cham. R. 154. 
 
 94- The service of an amended bill within the juris- 
 diction of the Court, upon a party added by amendment, 
 is to be of no validity if not made within twelve weeks 
 after the amendment. (6th Feb., 1865 ; Ord. 5.) 
 
 95- The service of a bill without the jurisdiction of the 
 Court is to be of no validity, if not made within a period 
 consisting of twelve weeks, and an additional time equal 
 to that limited by Order 90 for the answer of a defendant, 
 computed from the filing of the bill as to a party made 
 defendant by the original bill, and from the amendment 
 of the bill as to a party added by amendment. 
 
 96. Service may be allowed when made after the 
 periods above limited, upoii its being made to appear to 
 the satisfaction of the Court that due diligence has been 
 used in effecting service. (6th Feb., 1865 ; Ord. 5.) 
 
no ORDERS 97—99. 
 
 Service will be allowed where the delay is shown to have been acci- 
 dental, Bell V. Hastings, 1 Beav. 592 ; but not where the delay is unex- 
 plained, Horry v. Colder, 1 Beav. 685 ; and see Tugwell v. Hooper, 10 
 Beav. 19. 
 
 97. In case the application for the allowance of the 
 service is made within four weeks after the service, the 
 order need not be served, but the defendant is to have 
 four weeks to answer beyond the time allowed by the 
 foregoing Orders. (20 Dec, 1866 ; Ord. 3.) 
 
 98. In case the application is not made within four 
 weeks after service of the bill, the order for the allowance 
 of the service may be made on such terms as the Court 
 sees fit. (20th Dec, 1865 ; Ord. 4.) 
 
 9S. Orders for substitutional service of an office-copy 
 of a bill of complaint may be obtained in the same man- 
 ner, and in the same cases, as orders for substitutional 
 service of a subpoena to appear and answer might have 
 been obtained under the former practice. (3rd June, 
 1853 ; Ord. 9, s. 6.) 
 
 The principle on which orders for substitutional service are granted is, 
 that there is a reasonable ground to believe that the service will come to 
 the party's own knowledge ; Hope v. Hope, 19 Beav. 237 ; 4 D. M. & 6., 
 328; Huntv. Lever, 5 Ves. Hi ; Heald v. Hay, 9 W. R. 369 ; Dicker v. 
 Clarke, 11 W. R. 635. Thus, when a bill is filed to stay an action at 
 law, and the plaintiff at law is out of the jurisdiction, the plaintiff in 
 equity is entitled to an order for service on the attorney in the action at 
 law, Sergison v. Beavan, 22 L. J. Ch. 287 ; Hammond v. Walker, 3 Jur. 
 N. S. 686 ; Hurst v. Hurst, 1 DeG. & Sm. 694 ; Hawkins v. Bennett, 1 Gif- 
 215 ; and to obtain such an order an afSdavit of merits, or verifying the 
 allegations in the bill, is not now necessary, Smith's Ch. Pr. 366. 
 
 Substituted service may be allowed, though the defendant is not ab- 
 sconding, but is residing permanently abroad, Griffiths «. Cowper, 2 D. 
 F. & J. 208. 
 
 The application should be made ex parte, Danford v. Cameron, 8 Ha- 
 329 ; and a plaintiff moving upon notice may be ordered to payjcosts, 
 Reed v. Barton, 28 L. T. 36; 4 W. R. 793 ; and it should be shown that 
 every effort has been made to effect personal service, Hope v, Carnegie, 1 
 L. R. Bq. 126; Frith v. Bush, 11 W. R. 611; substitutional service will 
 
ORDER 99. 171 
 
 not be allowed under the 28th Vic. c. 17, s. 12, unless it is shown that it 
 would be very difficult and expensive to effect a seryice, Pearson v. Camp- 
 bell, 2 Cham. R. 25. ^'<- ^^lo-cAit^JPe/nT^jZ^^- 
 
 Where a defendant was out of the jurisdiction, but had himself com- 
 menced a suit in respect of the same property, to which the plaintiff was 
 not a party, the Court gave the plaintiff leave to substitute service on 
 the solicitor who was acting for the defendant in his own suit, Hawkins 
 V. Bennet, 6 Jur. N. S. 948 ; but the solicitor in a former suit is not the 
 client's agent for the purpose of substituted service in a fresh suit, though 
 relating to the same matter. Hurst v. Hurst, 1 DeG. & Sm. 694 ; nor in a 
 cross suit, Waterion v. Croft, 5 Sim. 502. 
 
 Service of proceedings in a supplemental suit may be substituted on 
 the defendant's solifcitor in the original suit, Seott ». Wheeler, 13 Beav. 
 239 ; Norton v. Hepworth, I Mac. & G. 54 ; and substitutional service on the 
 solicitor was ordered, though he^objected to accept it. Governors of Grey 
 Coat Hospital V. Westminister ^c, Commissioners, 4 Jur. N. S. 449. 
 
 It must be shewn that the person on whom service is to be effected is 
 the agent for the particular purposes of the suit. Bones v. Angier, 18 Jur. 
 1050 ; or at any rate for a purpose closely connected with the suit, Pass- 
 rrvyre ». Nicholls, 1 Grant, 130 ; Cupples v. Yerston, 2 Cham. E. 81 ; Mian 
 V, Pyper, 517. C.L. J. 118 ; his admission that he is agent is not suificient, 
 the fact must be proved, Legge v. Winstanley, 3 Grant, 106. 
 
 A solicitor who had merely written for a copy of the bill was held not 
 sufficiently an agent for the purpose, Asiatic Banking Co. v. Anderson, 13 
 L. T. N. S. 272 ; nor is the fact of a person being in communication with 
 the absent party sufficient. Watts v. Hughes, 8 W. R. 292. 
 
 It is not necessary to take out a new order for substitutional service on 
 an agent whenever the bill is amended, Rainey v. Dicksats, 5 U. C. L. J. 
 163. 
 
 An order obtained under this section does not authorise service on 
 the agent of a notice of motion to take the bill pro confess-t, as he may 
 in the meantime have ceased to be ag-ent, and a further order must be got ; 
 but in a proper case an order may be obtained allowing substituted 
 service not merely of the bill, bat of all fature proceedings, Christie v. 
 Cameron, 3 W. R. 146 ; Foster v. Mmzies, 16 Beav. 568. 
 
 The order allowing substitutional service, should be shewn to the person 
 served, Jones v. Brandon, 2 Jar. N. S. 437. 
 
 As to substituted service upon a company whose office is closed, see 
 Re Unity SfC, Jisociation, 11 W. R. 355 ; He Petroleumyo., 15 W. R. 29 ; 
 Geskell v. Chambers, 26 Beav. 252. 
 
 Substituted service was held good, though no order had been 
 previously obtained, Re ^Paragon ■& Spero Mining Co., 10 W. R. 76 ; 
 Fyeroft v. Williamt, 5 W. R. 464 ; but see Re Boger, 3 Jur. N. S. 930. 
 
172 ORDER 100. 
 
 100. In case it appears to the Court by sufficient 
 evidence that a defendant is absent, or cannot be found 
 after due diligence to be served with an office-copy of 
 the bill of complaint, the Court may order the defendant 
 to answer or demur within a time to be named in the 
 order, and may direct a copy of the order, together with 
 a notice to the effect set forth in schedule C hereunder 
 written, to be published in such manner as the Court 
 thinks fit ; and" in case the defendant does not answer 
 or demur within the time limited by such order, the 
 Court may order the bill to be taken pro confesso in 
 the manner hereafter provided. (3rd June, 185* ; Ord. 
 9, s. 8.) 
 
 It is not enough to state on affidavit that the defendant cannot, after 
 due djUigenoe, be found to be served, but the exertions made to find him 
 must be detailed, that the Court may judge whether due diligence has 
 been used, and whether he is absconding or not, Murney «. Knapp, 
 1 Cham. R. 26 ; but it is not necessary to shew that he has absconded 
 to avoid service in the particular suit. Barton v. Whitcomb, 16 Beav. 
 205. 
 
 When a defendant who cannot be found has any relatives in the country, 
 they should be examined before a special examiner or deputy master, as to 
 their knowledge of his residence, Perkins v. Pleb.i, 1 Cham. R. SOT ; Mc- 
 Murrich v. Hogan, Ibid ; and see Irving v. Strait, 1 Cham. R. 1S5. 
 
 The Court in some cases orders an oifice copy of the bill to be served 
 upon one of the defendant's relatives, in addition to the publication of an 
 advertisement. 
 
 The order usually directs the advertisement to ' be published once in 
 each week for the four weeks preceding the day appointed for defendant 
 to answer. In such an order the word "week " means any period of seven 
 consecutive days, and not the particular seven commencing with Sunday. 
 Where the last insertion of the advertisement was on a Tuesday, and the 
 day appointed for answering was the Thursday week following, this was 
 held not to be a sufficient compliance with the order, Bazalgette v. Lowe, 
 24 L. J. Oh. 368. 
 
 In moving- to take a bill^Ji-o confesso against a defendant who has been 
 advertised, it is necessary to shew by affidavit that he cannot be found 
 to be served with notice of the motion, Gilmour v. Matthew, 3 Grant, 3T6 ; 
 McCarty v. Wetsels, 1 Cham. R. 5. And to produce and shew to the 
 Judge the papers in which the advertisement has been inserted, Gaedfel- 
 low V. Hambly, I Cham. R. 62. 
 
OSDER 101, 173 
 
 Where the sole defendant in a foreclosure suit had been absent from 
 the jurisdiction for fourteen years, and had not been heard of during that 
 time, a motion for the service of the bill upon him by publication was 
 refused, Shaw v. Acker, 1 Cham. R. 395; Kelly v. Macklem, 1 Cham. R. 
 396, n. 
 
 101. Where the defendant is out of the jurisdiction of 
 the Court, then upon application supported by such evi- 
 dence as may satisfy the Court in what place or country 
 such defendant is or may probably be found, the Court, 
 instead of directing publication as provided for by Order 
 100, may order that an office-copy of the bill be served 
 on the defendant in such place or country, or within 
 such limits, as the Court thinks fit to- direct ; and the 
 order is in such case to limit a time (depending on the 
 place of service) within which the defendant is to answer 
 or demur, or obtain from the Court further time to make 
 his defence. (3rd June, 1853 ; Ord. 9, s. 5.) 
 
 The application for such an order is made in Chambers ex parte, and 
 must be supported by afBdavits shewing where the defendant resides. 
 The aiBdaTit should be made by some person who knows that the person 
 proposed to be served is the defendant, that he is residing at the place 
 alleged, from having recently seen him there, or received letters from him 
 dated at, and bearing the postmark of the place, and which shew that he is 
 resident there, If the defendant's residence be proved by letters it must 
 be shewn when the last communication was received from him, Farry v, 
 Davis, 1 Cham. R. 7 ; and if the affidavit merely states that letters have 
 been received from the defendant dated at a particular place, and does not 
 shew that he resides there, the order will be refused, Kingston v. Monger, 
 1 Cham. R 18. 
 
 It is usual to name in the order a particular place where service is to 
 be effected, but this is not necessary, as the Court may order service not 
 merely in a, particular place, but within certain limits ; as within the 
 Grand Duchy of Baden, Preston v. Dickenson, 9 Jur. 919 ; and see Blen- 
 kinsopp V. Blenkin»app, 8 Beav. 612 ; Whitmere v. Ryan, i Hare, 612. 
 
 In fixin"' the time, the Court has regard to the facilities for communi- 
 cating with the place where service is to be effected. 
 
 A copy of the order must be served along with the document, service 
 of which is thereby authorized ; and the person served must be identi- 
 fied with the defendant either by the affidavit of service or by a separate 
 affidavit. 
 
174 ORDERS r02— 104. 
 
 The Court is very strict in the proof of identity required. A state- 
 ment that the deponent served " the above named defendant," or that the 
 person served admitted himself to be the defendant, is insufficient ; there 
 must be clear and distinct proof of identity, and the deponent's means of 
 knowing the fact must appear by the affidavit. 
 
 102. The Court may provide for or order service in any 
 other manner that the Court under the circumstances of 
 the case deems conducive to the ends of justice. 
 
 The 2Sth Tic. c. 17, s. 12, gives the Court larger powers as to proceed- 
 ing against absent defendants whose residence is unknown, and the 
 Court wUl grant orders for substitutional service in cases where it would 
 not under the practice before the Act, dispensing with advertising where 
 it would be useless, Cooper v. Lane. 1 Cham. E. 363. 
 
 103- AiRdavits of the service of an office-copy of a bill 
 of complaint are to be in the forni or to the effect set forth 
 in schedule D hereunder written ; they are to state where, 
 when, and how such service was effected ; but no copy 
 of the bill is to be annexed. (3rd June, 1853 ; Ord. 9, 
 s. 4.) 
 
 Vm.— TAKING BILLS PRO CONFESSO. 
 
 104- Where a defendant, not appearing to be an in- 
 fant, or a person of weak or unsound mind, unable of 
 himself to defend the suit, has been personally served 
 within the jurisdiction of the Court, with an office-copy 
 of a bill of complaint, and has neglected to answer or 
 demur within one month from the time of such service, 
 no order is to issue for taking the bill pro confesso ; but 
 in lieu thereof the plaintiff is, after the expiration of one 
 month and within six months, to file the usual affidavit 
 of service of the bill, and a precipe requiring the Clerk 
 of Records and Writs, or the Deputy Registrar, to note 
 that the defendant is in default for want of answer, and 
 that the bill is to be taken pro confesso against him. 
 (3rd June, 1853; Ord. 13, s, 1; 6th Feb. 1865; Ord. 
 19.) 
 
ORDER 105. 175 
 
 An acceptance of service and undertaking to answer by a solicitor is 
 equivalent to personal service, Ord. 4Y. 
 
 Where more than six months have elapsed since service was effected, 
 notice of motion for an order pro ccnfesso must be served, Brown v. Bakert 
 1 Cham. R. 7. But where the defendant lived out of the jurisdiction the 
 order was granted ex parte, Kerr v. Clemow, 1 Cham. R. 14 ; and where 
 the defendant had absconded, Hare v. Smart, I Cham. R. 350 ; so also an 
 order was granted ex parte though more than six months had elapsed, the 
 long vacation having intervened, Crrange v. Oonroy, 1 Cham. R. 10. 
 
 The usual two-day notice of motion is sufficient, Reward v. Watson, 1 
 Cham. R. 203. 
 
 105. If the defendant is in default for want of answer, 
 the Clerk of Records and Writs, or the Deputy Regis- 
 trar, is to enter a note in the registry of pleadings, as re- 
 quired by the precipe, in the same manner as pleadings 
 are entered therein, and the entry is to have the same 
 effect as an order for taking the bill pro confesso. (6th 
 Feb. 1865 ; Ord. 19.) 
 
 Where the Attorney-General being a defendant neglected to appear, 
 the Court under the old practice refused to make an order compelling 
 him to do so, but took it as a nihil dicit, Barclay v. Russell, 2 Dick. 729. 
 The modern practice appears to be, that where the Attorney-General is a 
 . defendant and does not answer, the plaintiff should obtain an order that 
 he do answer within a week, or in default that the bill be taken pro con- 
 fesso, against him. Groom v. Attorney- General, 9 Sim. 325 ; Shea v. Fel- 
 lowes, 1 Charii. R. 30. 
 
 Before a bill can be taken pro confesso against a defendant a married 
 woman, ao order must be obtained for her to answer separate from her 
 husband. This order may be obtained in Chambers on the ex parte appli- 
 cation of the plaintiff, who must shew that the case is a proper one for 
 such separate answer, Wright v. Morrow, 1 Cham. R.' 286 ; but before 
 the order will be granted it must be shewn that she is in default for want 
 of answer, Anon, 1 Cham. R 9 ; it is not necessary to serve her with the 
 bill before obtaining an order for her to answer separately, service on the 
 husband alone is sufScient, Bunn v. Barclay, 1 Cham. R. 254. The hus- 
 band must be served before the wife will be ordered to answer separately, 
 Brandon v. Wheeler, 1 Cham. R. 262. Where a solicitor had accepted 
 service for the husband and wife, and had given a written consent that 
 in the event of no answer being filed, the bill might be taken pro con- 
 fesso ; held, that this did not dispense with an order for the wife to an- 
 swer separately, before proceeding to take the bill pro confesso as against 
 
176 ORDERS 106—107. 
 
 her, Sargeant v Sharps, 1 Cham. R. 63. The time within which she is 
 to answer must be expressed in the order, Miller v. Gordon, 5 Grant, 
 134. 
 
 Where a defendant refused to attend before Commissioners appointed 
 to take his evidence abroad, the usual order to set the cause down to be 
 taken pro confesso, was made, Prentiss v. Bunker, 4 Grant, 14T. 
 
 An order to amend even a clerical error renders an order pro confesso 
 inoperative, Weightmxn v. Powell, 2 DeG. & S. 570 ; 12 Jur, 958. 
 
 106. Where a defendant not appearing to be an infant 
 or a person of weak or unsound mind, unable of himself 
 to defend the suit, has been personally served with .an 
 office-copy of a bill out of the jurisdiction, and has neg- 
 lected to answer or demur within the time limited for 
 that purpose, the plaintiff may apply to the Court ex parte 
 for an order to take the bill pro confesso against such 
 defendant ; and the Court, on being satisfied by affidavit 
 that an office-copy of the bill was served personally, and 
 that no answer has been filed for such defendant, may, 
 if it thinks fit, order the same accordingly. (3rd June, 
 1853 ; Ord. 13, s. 2.) 
 
 107- Where an office-copy of a bill of complaint has 
 been duly served, but the service has not been personal, 
 and the defendant has neglected to answer or demur 
 within the time limited in that behalf, the plaintiif may 
 cause the defendant to be served personally, or by his 
 solicitor if he has one, with notice of a motion to be made 
 on some day, not less than seven days after the date of 
 such service, that the bill may be taken pro confesso 
 against the defendant ; and thereupon, unless the de- 
 fendant has in the meantime put in his answer, the 
 Court, if it thinks fit, may order the bill to be taken pro 
 confesso, either immediately, or at such time, and upon 
 such terms, and subject to such conditions, as the Court^ 
 under the circumstances of the case, thinks proper. (3rd 
 June, 1853; Ord. 13, s. 3.) 
 
 An acceptance of service and undertaking to answer by a solicitor is 
 equivalent to personal service, Ord. H. 
 
ORDERS 108—109. 177 
 
 Where a solicitor has accepted service of an office-copy bill for. the 
 defendant, a two days' notice of motion is sufficient, and the notice may 
 be served upon the solicitor, Boss v. JIayes, 6 Grant, 211 ; and see Shaw 
 V. Ziddell, i Grant, 352. 
 
 Where after notice of motion is served, and before the motion day, the 
 answer is filed, the plaintiff is entitled to his costs of the motion, Anon, 
 
 1 Grant, 423. 
 
 108. Where an office-copy of a bill of complaint has 
 been duly served, but the service has not been personal, 
 and the defendant has neglected to answer or demur 
 within the time limited in that behalf, then in case the 
 office-copy of the bill has been served upon the defendant 
 out of the jurisdiction, or the plaintiff has been unable 
 with due diligence to serve him personally with such 
 notice of motion as is provided by Order 107, the Court, 
 upon the ex parte application of the plaintiff, may direct 
 a notice of motion in the form or to the effect set forth in 
 schedule E hereunder written, to be published in such 
 manner as the Court thinks fit ; and upon the hearing of 
 the motion the Court, being satisfied of the due publica- 
 tion of the notice, and that no answer has been filed, may 
 order the bill to be takenpro confesso, either immediately, 
 or at such time, and upon such conditions, as the Court, 
 under the circumstances of the case, thinks proper. (3rd 
 June, 1853 ; Ord. 13, s. 4.) 
 
 To obtain leave to publish such an advertisement, the same kind of 
 evidence must be given as is required to obtain an order for advertising 
 an absent or absconding defendant, under Order 100. 
 
 On moTing for the order pro confesso, the papers in which the advertise- 
 ment was Inserted must be produced to the Judge, before the order will 
 be granted, Goodfdlow v. Hambly, 1 Cham. E. 62. 
 
 It is a fatal omission in the advertisement on which an application to 
 take the bill pro confesso is based, if the name of the particular defendant 
 against whom the application is directed be omitted, Janes v. Brandon, 
 
 2 Jur. N. S. 437. 
 
 109. Where the plaintiff has proceeded under Orders 
 100, 101, or 102, and the defendant has neglected to an- 
 
178 ORDERS 110—111. 
 
 swer or demur withia the time limited, the plaintiff may- 
 apply to the Court, ex parte, for an order to take the bill 
 pro confesso against the defendant ; and the Court, on 
 being satisfied of the due publication of the order and 
 notice in that behalf prescribed, or that service has been 
 effected in the prescribed manner, may direct the bill to 
 be taken pro confesso against the defendant, if it thinks 
 fit, either immediately or at such time, and upon sucl^ 
 terms, and subject to such conditions, as the Court, un- 
 der the circumstances of the case, thinks proper. (3rd 
 June, 1853 ; Ord. 13, s. 6.) 
 
 Upon the application under this section, the Judge must be satisfied 
 that the advertisement has been published in strict conformity with the 
 requirements of the order authorizing such publication, and that no an- 
 swer- has been filed, the newspapers containing the advertisement must 
 be produced, Qoodfellow v. Humbli/, I Cham. R. 62 ; and it is necessary to 
 shew that the defendant cannot be found to serve him with notice of 
 motion, Gilmour v. Matthew, 4 Grant, 3Y6 ; McCarty v . Weasels, 1 
 Cham. R. 5. 
 
 110. Where a corporation aggregate, served with an 
 office-copy of a bill of complaint, has neglected to an- 
 swer or demur within the time limited in that behalf, the 
 plaintiff may apply to the Court ex parte for an order to 
 take the bill pro confesso against the corporation, and 
 the Court, on being satisfied of the due service of the 
 bill, and that no answer has been filed for the corpora- 
 tion, may, if it thinks fit, order the same accordingly. 
 
 111. An order to take a bill pro confesso against a de- 
 fendant does not require to be served ; and all further 
 proceedings in the case may be ex parte as to such de- 
 fendant, unless the Court orders otherwise. (3rd June^ 
 1853; Ord. 13, s. 7.) 
 
 Where six years had elapsed after the order pro confesso was obtained 
 and no proceedings had be taken since, leave was given to the plaintiff 
 to set the cause down for heiring, giving the defendant notice forthwith 
 of the proceedings, Cryne v. Doyle, 1 Cham, R. 1. 
 
ORDERS 112—113. 179 
 
 Where after a bill has been taken pro eonfesso, but before any decree 
 is drawn up, the defendant intervenes and is a party to proceedings be- 
 tween the plaintiff and defendant, that is not such a case as is contem- 
 plated by the above section where all proceedings in the cause may be 
 taken ex parte, Strachan v, Mumey, 6 Grant, 284. 
 
 112. A defendant against whom an order to take a bill 
 pro eonfesso has been made, is at liberty to appear at the 
 hearing of the cause ; and if he waives all objection to 
 the order, but not otherwise, he may be heard to argue 
 the case upon the merits as stated in the bill. (3rd June, 
 1853 ; Ord. 14, s. 2.) {Eng. Con. Ord. 22, r. 7.) 
 
 A defendant appearing under this section must waive all objeetions, 
 Greaves v. Greaves, 12 Beav. 422 ; but he may shew that the bill is open 
 to demurrer for want of equity, (j-reig v. Green, 6 Grant, 240; 3 U. Oj 
 ' L. J. 218. Even though the defendant does not appear, the bill will be 
 dismissed, if the plaintiff appears to have no equity, Speidall v. Jervis, 2 
 Dick. 632 ; and the Court will not hear any affidavits against the bill as 
 confessed ; the order ^ro eonfesso must first be set aside, Manley v. Wil- 
 liams, 5 U. 0. L. J. 163. 
 
 113- Upon the hearing of a cause in which a bill has 
 been ordered to be taken pro eonfesso, such a decree is 
 to be rnade as the Court thinks just ; and the decree so 
 made is to be absolute in the following cases, viz.: 
 
 1. Where an office-copy of the bill has been served 
 
 personally, or where service has been accepted 
 by a solicitor under Order 47. 
 
 2. Where notice of a motion to take the bill pro eon^ 
 
 fesso has been served under Order 107. 
 
 3. Where the defendant has appeared at the hearing, 
 
 and waived all objection to the order to take 
 the bill pro eonfesso. (3rd June, 1853 ; Ord. 
 14, s. 3.) 
 
 The plaintiff to obtain a decree must establish his right to the relief 
 sought, Lloyd v. Lloyd, i Dr. <b War. 354; Stanley v. Bond, 6 Beav, 420 ; 
 Brierly v. Ward, 15 Jur. 277; plaintiff cannot take such a decree as he 
 
180 ORDER 114. 
 
 can abide by, but such ag shall be just, Collins v. Collyer, 3 Bea7. 600 ; 
 Eaynea v. Ball, i Bear. 101 ; and where the defendant made default, but 
 the plaintiflt appeared to have no equity, the bill was dismissed, Speidall 
 V. Jarvis, 2 Dick. 632. 
 
 In a suit to enforce a security and take accounts, the Court refused to 
 shorten the period of three years, after which, under Order 116, the de- 
 cree could be made absolute, though the plaintiflF contended that the 
 delay Would amount to a denial of justice, Darloui v, Simcock, 14 W, E. 
 664; but where the bill was ordered to be taken pro confesso against a 
 bare trustee, the decree was made absolute in the first instance, Leile v. 
 Vicini, 12"W. E. 897. 
 
 114. After a decree founded on a bill taken ^ro confesso 
 has been passed and entered, if the decree is not absolute 
 under Order 1 13, an office-copy thereof may be served on 
 the defendant against whom the order to take the hu. 
 pro confesso was made, or his solicitor, together with a 
 notice, to the effect that if the defendant desires permis- 
 sion to answer the plaintifl's bill and set aside the decree 
 application for that purpose must be made to the Court 
 within the time specified in the notice, or the defendant 
 will be absolutely excluded from making such applica- 
 tion. (3rd June, 1853; Ord. 14, s. 6.) {Eng. Con. Ord. 
 22, r. 11.) 
 
 The Court may dispense with service of decree, under special circum ■ 
 stances, Kemp v. Laiter, 16 Jur. 779 ; Thurgood v. Kane, 32 Bear. 156 
 Leite v. Vicini, 12 W. E. 897 ; Benbovi v. Davits, 12 Beav. 421. 
 
 The mere fact that service will be difficult or expensive will not induce 
 the Court to dispense with the service, Vaughan v. Rogers, 11 Beav. 165; 
 and see Brierly v. Ward, 20 L. J. Oh. 46. 
 
 An accounting defendant should be served not only with the decree 
 which directed the accounts, but with the warrants to proceed with the 
 accounts under the decree, Golden v. Newton, Johns. 720 ; King v. Bryant, 
 
 5 M. & C. 191. 
 
 The application to dispense with service ought not to be made till the 
 three years mentioned in Order 116 have elapsed, James v. Rice, 5 D. M. 
 
 6 G. 461. 
 
 Serviee on a defendant out of the jurisdiction, of the order limiting the 
 time-withiu which he may apply to set aside the decree ia a sufficient no- 
 tiee under this rule, Trilly v, Keefe, 16 Beav, 83 ; 16 Jur. 443. 
 
ORDERS 115—116. 181 
 
 115. If the notice is to be served within the jurisdiction 
 of the Court, the time therein specified for such applica- 
 tion to be made by the defendant, is to be three weeks 
 after service of the notice ; and if the notice is to be served 
 out of the jurisdiction, the time is to be specially appoint- 
 ed by the Court upon the ex parte application of the 
 plaintiff. (3rd June, 1853; Ord. 14, s. 5.) {Eng. Con. 
 Ord. 22, r. 13.) 
 
 116- Where a decree is not absolute under Order 113, 
 the Court may order the same to be made absolute, on 
 the motion of the plaintiff : 
 
 1. After the expiration of three weeks frQm the sfervice 
 
 of a copy of the decree on a defendant, where 
 the decree has been served within the jurisdic- 
 tion. 
 
 2. After the expiration of the time limited by the 
 
 notice provided by Order 115. 
 
 3. After the expiration of three years from the date of 
 
 the decree, where a defendant has not been 
 served with a copy thereof : and the order may 
 be made either on the first hearing of the motion, 
 or on the expiration of any further time which 
 the Court may allow to the defendant for pre- 
 senting a petition for leave to answer the bill. 
 (3rd June, 1853 ; Ord. 14, s. 6.) (Eng. Con. 
 Ord. 22, r. 15.) 7A.Z.^./2S. 
 
 Dispensing with service does not count as service so as to bring a case 
 within the first clause of this Order, Darlow v. Simcock, 14 W. R. 664. 
 
 Service of an order limiting the time yithin which defendant might 
 apply to set aside a decree pro confesso, held suflBcient notice for the pur- 
 pose of making the decree absolute, Trilly v Keefe, 16 Beav. 83 : 16 Jur. 
 442. If the plaintiff cannot serve the defendant, he must, at the end of 
 three years, when he applies to make the decree absolute, explain why it 
 has not been served ; a previous application to dispense with service is 
 premature, James v. Rice, 5 D. M. & G. 461. 
 
182 ORDERS 117—118. 
 
 The Court cannot dispense with service till the expiration of the three 
 years, Vaughan v. Rogers, 11 Beav. 165. 
 
 117. Where the decree is not absolute under Order 113, 
 and has not been made absolute under Order 116, and 
 the defendant has a case upon the merits not appearing 
 in the bill, he may apply to the Court by petition, stating 
 such case, and submitting to such terms with respect to 
 costs and otherwise as the Court may think reasonable, 
 for leave to answer the bill ; and the Court, on being sat- 
 isfied that the case is proper to be submitted to the judg- 
 ment of the Court, may, if it thinks fit, and upon such 
 terms as may seem just, vacate the enrolment (if any) of 
 the decree, and permit the defendant to answer the bill : 
 and if permission is given to the defendant to answer the 
 bill, leave may be given to file a separate replication to 
 such answer, and issue may be joined, and witnesses 
 examined, and such proceedings had, as if the decree had 
 not been made, and no proceedings against such defend- 
 ant had been had in the cause. (3rd June, 1853 ; Ord. 
 14. s 7.) {Eng. Con. Ord. 22, r. 16.) 
 
 Permission given under this rule in a foreclosure suit, on terms of pay- 
 ing plaintiff's costs of the application, and of the suit, Inglis v. Campbell, 
 2 W. R. 396. 
 
 118- In pronouncing the decree, the Court, either upon 
 the case stated in the bill, or upon that case and a peti- 
 tion presented by the plaintiff for the purpose, as the case 
 requires, may order a receiver of the real ^nd personal 
 estate of the defendant against whom the bill has been 
 ordered to be taken pro confessoio be appointed, with the 
 usual directions ; or may direct a sequestration of such 
 real and personal estate to be issued ; and may, if it ap- 
 pears to be just, direct payment to be made out of such 
 real and personal estate of such sum or sums of money 
 as at the hearing or any subsequent step in the cause the 
 plaintiff seems to be entitled to ; provided that, unless the 
 
ORDERS 119—120. 183 
 
 decree is absolute, such payment is not to be directed 
 without security being given by the plaintiff for restitu- 
 tion, if the Court afterward should think fit to order res- 
 titution to be made. (3rd June, 1853 ; Ord. 14, s, 9.) 
 (Eng. Con. Ord. 22, r. 9.) 
 
 The plaintiff's own bond held sufficient security for the restitution of 
 property talcen under a sequestration after bill taken pro confesso, Lett v. 
 Randall, 1 Jur. 1075 ; for form of decree in such a case, see Tcrrr ». Torr, 
 Johns. 660. 
 
 119. The rights and liabilities of a plaintiff or defend- 
 ant under a decree made upon a bill taken yro confesso 
 extend to the representatives of a deceased plaintiff ov 
 defendant at the time when the decree was pronounced ; 
 and, with reference to the altered state of parties and any 
 new interests acquired, the Court may, upon motion, 
 served in such manner and supported by such evidence 
 as under the circumstances of the case the Court deems 
 sufficient, permit any party, or the representative of any 
 party, to adopt such proceedings as the nature and cir- 
 cumstances of the case may require, folr the purpose of 
 having the decree (if absolute) duly executed, or for the 
 purpose of having the matter of the decree and the rights 
 of the parties duly ascertained and determined. (3rd 
 June, 1853 ; Ord. 14, s. 10.) {Eng. Con. Ord. 22, r. 17.) 
 
 IX.— DEMURRERS. 
 
 120. A defendant may demur to a bill of complaint 
 at any time within one month after service upon him of 
 an oiiice-copy of the bill. (3rd June, 1853 ; Ord. 11.) 
 
 A demurrer is the proper mode of raising a defence, the grounds of 
 ■which are apparent on the bill itself, either from matter contained in it, 
 or from defect in its frame, or in the case made by it. 
 
 A demurrer will lie to a bill, though called a cross bill, if it is not 
 really a cross bill, Moss v. Anglo-Egyptian Navigation Co., 1 L. R. Oh 
 108. On a demurrer ore tenus it was held that every material allegation 
 in a bill must be positive, Yarrington v. Lyon, 2 Cham. R. 22. 
 
184 ORDER 120. 
 
 The Court will not, on demurrer, decide a doubtful question on an 
 equitable title, notwithstanding the inclination of the Court is in favor 
 of the defendant, Cochrane a. Willis, 10 Jur. N. S. 162; nor whether a 
 suit can or cannot be talcen as supplemental to a former suit, Shrewsbury 
 V. North Staffordshire Hail. Co., 9 Jur. N. S. ISI ; 11 W. R. 742. 
 
 Where a demurrer is filed for want of parties aa well as for want of 
 equity, the question of parties must be disposed of, before the demurrer 
 for want of equity can be argued, Malcolm v. Malcolm, 2 Cham. R. 200. 
 
 Demurrer allowed to a bill filed by " The United States of America ' ' 
 as plaintiffs, on the ground that a foreign sovereign State is not entitled 
 to sue in the Courts of Equity in this country without putting forward 
 some public officer as representing their interests, upon whom process may 
 be served, and who can be called upon to give discovery upon a cross bill^ 
 United States v. Wagner, 3 L. R. Eq. 724. 
 
 If a partial demurrer be allowed it generally imposes on the plaintiff the 
 necessity of amending his bill ; thus upon the allowance of a demurrer 
 for want of parties, the Court allowed the plaintiff to amend by striking 
 out that part of the bill which rendered such parties necessary, Mtomey- 
 Ganeral v. Mayor ^c. of Poole, 4 M. & C. 17. 
 
 Where the Court sees that the frame of the bill is not such as entitles 
 the plaintiff to relief against the demurring party, it will refuse leave to 
 amend, Tyler v. Bell, 2 M. & C. 89. 
 
 If a demurrer be overruled the defendant cannot put in another with- 
 out leave, Bancroft v. Wardom, 2 Bro. C. C. 66 ; but overruling demurrer 
 to the original bill does not prevent the defendant demurring to an 
 amended bill, Bosanquet v. Marsham, 4 Sim. 573 ; Cresy v. Bevan, 13 Sim. 
 354. 
 
 After a demurrer has been overruled the defendant must ask for time 
 to answer. Trim v. Baker, 1 S. & S. 469 ; WiUeft<in v. Croft, 8 Sim. 
 438 ; if no application for time is made when the demurrer is overruled, 
 the defendant must put in his answer within the usual time, if it has 
 not expired, or make a special application on notice for further time, 1 
 Daniel's Pr. 551. By answering the defendant waives his right to appeal 
 against the order overruling the de.nurrer, Simpson u. Smith, 1 E. <fe A. 
 Rep. 1. 
 
 Where a demurrer on two grounds succeeds as to one, and fails as to 
 another, no costs are given on either side, Benson v. Hadfield, 6 Beav. 
 546 ; Mien v. Houlden, 6 Beav. 148 ; a demurrer having been held good 
 on one gpound, though overruled as to another, the defendant was allowed 
 to answer without costs, Paine v. Chapman, 6 Grant, 338. 
 
 But where a demurrer for multifariousness was overruled, and a 
 demurrer ore tenus for want of parties was allowed, the practice was held 
 to be that the demurrer for multifariousness should be overruled with 
 costs, and the demurrer ore tenus allowed without costs, Kelly v, Ardell 
 11 Grant, 579. 
 
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ORDERS 121—122. 185 
 
 Where a Judge has considered that the question raised by a bill ought 
 not to be decided on demurrer, the Conrt of Appeal will not ordinarily 
 overrule his decision, Sheffield Water Works o. Yeomans, 2 L. R. Ch. 8- 
 
 There is nothing in this order to prevent a demurrer being filed after 
 the expiry of the month, any more than an answer if the bill has not been 
 taken pro confeiso ; and a demurrer may be filed even after notice of a 
 motion to take the bill pro confesso has been served, White v. BaaktrvilU, 
 2 Cham. R. 40. 
 
 A defendant cannot obtain further time to demur ; and where further 
 time to answer has been given, a demurrer filed by the defendant will be 
 taken off the files with costs, BouUbee v, Cameron, 2 Cham. R. 41 ; Cham- 
 berlain V. McDonald, 2 Cham. B. 204. 
 
 A demurrer is not put in upon oath, but otherwise is filed in the same 
 manner as an answer ; the name or firm, and place of business of the 
 solicitor, by whom it is filed, must be endorsed, Ord. 40 ; and notice 
 of filing should be served the same day, Ord. 46. 
 
 The omission of any formal part in a demurrer (such as the heading), 
 is an irregularity, which entitles the plaintiff to have the demurrer taken 
 off the files, but an amendment may be allowed, 5e7ine<i«. OWeara, 2 
 Cham. R. 161 
 
 A demurrer prevents the plaintiff from moving for an injunction, or 
 to dismiss his bill until it is disposed of, but the pendency of a demurrer 
 does not prevent the plaintiff from serving the defendant with a notice of 
 motion, Wardle v. Claxton, 9 Sim. 412 ; in general the Court will not 
 advance a demurrer, Anon, 1 Mad. 299; in cases however of bills 
 for injunction, the Court will, upon application, where the matter is pres- 
 sing, order the demurrer to be argued immediately. Cousins v. Smith, 13 
 Ves. 167 ; Jones v. Taylor, 2 Mad. 181. 
 
 The plaintiff cannot obtain an order to produce, pending the argument 
 of a demurrer, Reid v. Baldwin, V. 0. Esten, 22 Aug. 1861. 
 
 121. Where a demurrer is not set down for argument 
 by the plaintiff, or the plaintiff does not obtain an order 
 to amend, within eight days after notice of filing the 
 demurrer is served, the defendant may set the same 
 down, and serve notice thereof. 
 
 X.— ANSWERS. 
 
 122. Answers may be in a form similar to the form 
 set out in schedule F to these Orders, and are to consist 
 of a clear and concise statement of such defences as the 
 
186 ORDERS 123—123. 
 
 defendant desires to make. The signature of counsel 
 is unnecessary ; the answer is to be verified by the oath 
 of the defendant ; and the jurat may be in the form set 
 forth ill schedule F. (3rd June, 1853 ; Ord. 12, s. 1.) 
 
 As to the rule that a distinct denial in an answer of statements made 
 in the bill, must be contradicted by two witnesses, or by one witness 
 corroborated by attendant circumstances, see BouUon o. Robinson, 4 Grant 
 109, 
 
 As to admissions in answer, see Ord. 124. 
 
 Filing a replication waives all irregularities in an answer preriously 
 filed, but does not waive the plaintiff's riglit to move against it for 
 scandal, Ruttan v. Smith, 1 Cham. R. 184. 
 
 The fact that an answer is sworn before a, commissioner who had 
 formerly been concerned as solicitor in the cause, is no ground for taking 
 it off the files, Gordon v. Johnson, 2 Cham. R. 205; Foster v. Harvey, 11 
 TV. R. 899. 
 
 123- The silence of the answer as to any statement of 
 the bill is not to be construed into an implied admission 
 of its truth ; and any allegation introduced into an 
 answer for the purpose of preventing such implied ad- 
 mission, is to be considered impertinent. (3rd June, 
 1853; Ord. 12, s. 1.) 
 
 124. A defendant is to admit in his answer such of 
 the allegations contained in the plaintiff's bill as are to 
 the knowledge of such defendant true, or as he can 
 readily ascertain to be tTue, or as he has reason to believe 
 and does believe to be true ; and it shall be sufficient if 
 such admissions are expressed to be only for the pur- 
 poses of the suit in which the same are made. (6th Feb., 
 1865 ; Ord. 6.) 
 
 125. Admissions are, in all cases where it is practic- 
 able, to be by reference to the numbers of the paragraphs 
 in the bill to which they relate, withf such qualifications 
 as may be necessary or proper for protecting the interests 
 of the party making such admissions ; and it shall not 
 be necessary ox proper, in any answer, to allege ignorance 
 
/2 3. Aic^ ^. J>^-v-2t^^ s -^ow^ ^"^ ^ - 
 

 Ckc^^y-^Jn^^ CfiiccUzc<^.^. 96-- 
 
ORDERS 126—127. 187 
 
 of any fact stated in the bill, or any other reason for 
 not admitting any fact therein alleged. (6th Feb., 1865 ; 
 Ord. 9.) 
 
 126. A defendant may claim, by answer, any relief 
 against the plaintiff which such defendant might claim 
 by a cross bill ; and for this purpose the facts necessary 
 to make out the defendant's right to relief are to be stated 
 in the answer as part of the defendant's case, and he is 
 to pray such relief as he may think himself entitled to. 
 And the Court, in all such cases, may either grant such 
 relief upon the answer, or it may direct or permit a 
 separate suit to be instituted. (3rd June, 1853 ; Ord. 12, 
 s. 4; 1st April, 1867 j Ord. 3.) 
 
 127- The Court may permit a supplemental answer to 
 be filed at any period of the suit, for the purpose of put- 
 ting new matter in issue, in furtherance of justice, 
 and upon such terms as may seem proper. (3rd June, 
 1853; Ord. 12, s. 5.) 
 
 AVhen a, defendant desires to correct, add to, or explain his answer 
 after it is filed, he will not be permitted to amend it, but he must apply 
 for liberty to file a supplemental answer, Jennings v. Merlon College, 8 
 Yes. 19 ; Phelps v. Prothero, 2 DeG. & S. 274, For the purpose of get- 
 ting such leave a notice of motion is Served, returnable in Chambers, and 
 supported by affidavit, Wells v. Wood, 10 Ves. 401; but see Churton v, 
 Frewev, 1 L. R. Eq. 238, where it was held that an application for leave 
 to file a supplemental answer to correct a mistake in the original answer, 
 must be made by motion in Court, and not by summons in Chambers. 
 The new facts intended to be introduced must be specified in the notice, 
 Haslar v. Hollu, 2 Beav. 236 ; Smith v. Hartley, 5 Beav. 432. 
 
 Leave to file a supplemental answer has been given even after replica- 
 tion filed and the cause set down for examination, Cherry v. Morton, 1 
 Cham. K. 25 ; Worts v. Sow, 2 Cham. R. Ill ; and to correct a date even 
 after the cause was in the paper for hearing, Fulton v. Qilmour, 1 Phill. 
 522. 
 
 Where new matter was dficovered after the examination of witnesses 
 and the hearing of a cause, leave was given to file a supplemental answer 
 on terms, McKinnon v. McDonald, 2 Cham. R. 23 ; and leave was given 
 after considerable delay, the plaintiff having allowed the suit to sleep for 
 five years. Worts v. How, 2 Cham. R. 111. 
 
188 OKDER 128. 
 
 The Court nny now permit a defendant to introduce new matter 'of 
 defence at the hearing by supplemental answer, under oath or otherwise, 
 Ord. 129. 
 
 128. Leave to file a supplemental answer is to be ap- 
 plied for by motion. The notice of motion is to set forth 
 the proposed answer, and state the grounds upon which 
 the indulgence is asked ; and it must be supported by 
 such evidence as satisfies the Court of the propriety of 
 permitting the supplemental answer to be filed, under all 
 the circumstances, having reference to the subject matter 
 of the answer, and to the stage of the cause in which 
 the application is made. (3rd June, 1853; Ord. 12, s. 5.) 
 
 The defendant is required to account for the mistake, to state the terms 
 on which it is intended the answer should be filed, and to verify the truth 
 of the proposed answer, Bell v. Dunmore, 1 Bear. 283 ; Fullon v. Oilmour, 
 8 Beav, 154 ; and the plaintiff has a right to see a full copy of the answer 
 proposed to be filed before it is filed, Fulton v. Gilmoxtr, 9 Jur. 1 . 
 
 A supplemental answer is permitted only with great caution. Curling 
 V. Marquis of Townshend, 19 Ves. 628 ; especially if the fact to be added 
 is prejudicial to the plaintiff, or if the cause is in such a state that the 
 other party may be prejudiced, but if it be beneficial to the plaintiff, leave 
 is readily granted, Greenwood v. Atkinson, 4 Sim. 54 ; Percival v. Ganeyy 
 14 Jur. 473. 
 
 A defendant has been permitted to file a supplemental answer to cor- 
 rect a mistake in the original answer as to a matter of fact, Fulton v, Gil- 
 more, 1 Phill. 522 ; where at the time of swearing to his answer he was 
 ignorant of a particular fact, Tidswell v. Bowyer, 1 Sim. 64 ; Frankland 
 0. Overend, 9 Sim. 366 ; Torrance v. Crooks, 1 Grant's E, & A. E. 230 ; or 
 where, by the mistaken advice of his solicitor, he did not state a particu- 
 lar fact which he wished to have stated, Nail v. Punter, 4 Sim . 474 •, 
 Cherry V. Morton, X Cham. U. 25 ; Worts v. Sow, 2 Cham. R. HI. Leave 
 to plead the Statute of Limitations by supplemental answer after issue, 
 refused, Percival v. Caney, 14 Jur. 473 ; but leave has been given to file a 
 supplemental answer for the purpose of pleading the Registry Act, Gra- 
 ham V. Chalmert, 23rd August, 1857. 
 
 The supplemental answer will be confined strictly to the mistake 
 clearly sworn to, and probable in itself, Strange v. Collins, 2V.& B. 
 163 ; leave will be refused unless a sufficient reason is given for not in- 
 serting it in the original answer, Scott v. Carter, 1 T. ife J. 452. 
 
ORDERS 129—132. 189 
 
 129. At the hearing of a cause the Court may permit 
 a defendant to introduce new matter of defence by sup- 
 plemental answer, under oath or otherwise, in the same 
 manner as the Court permits an amendment of the bill 
 at the hearing. 
 
 130- An answer or disclaimer, whether sworn within 
 the jurisdiction of tlie Court, or out of the jurisdiction 
 under a commission or otherwise, may be filed without 
 the oath of a messenger, and without any further or other 
 formality than is required in the swearing and filing of 
 an affidavit. 
 
 131. Alterations or interlineations in an answer or dis- 
 claimer, made therein previously to the taking thereof, 
 are to be authenticated according to the practice in use 
 with respect to affidavits. 
 
 132. It shall not be necessary to issue a commission to 
 take the answer or disclaimer of a defendant resident 
 out of the jurisdiction of the Court, but such answer or 
 disclaimer may be sworn or affirmed before any of the 
 persons named in the first and third sections of the Statute 
 passed in the 26th year of the reign of Her Majesty Queen 
 Victoria, and chaptered 41. 
 
 Before this order, an answer sworn abroad without a commission hav- 
 ing issued to take it, was irregular, and could not be filed, unless the 
 plaintiff consented to its being filed without oath, Crawford v. Policy 
 1 Cham. E. 8. 
 
 The order for a commission is obtained by motion upon notice, in 
 Chambers. As the plaintiff is entitled to join in the commission, to see 
 the answer sworn, two days' notice of striking commissioners' names, 
 with the names of those proposed, should be given him. If he do not 
 name any, the defendant may sue out the commission addressed to his 
 own commissioners, Baron de Feucheres v. Dawes, S Bear. 144. 
 
 Commissions to take answers are made returnable without delay; bu 
 this does not prevent the answer from being filed, although delay has 
 ocourred, Hughes v. William,!', 5 Hare, 211. Where the plaintiff joins, 
 in the commission he is entitled to six days' notice of executing it ; the 
 
190 ORDERS 133—134. 
 
 notice should bo signed by the defendant's commissioners, and then served 
 on those of the plaintiff. 
 
 133- An answer may be filed without oath or signa- 
 ture, by consent, without order. (3rd June, 1853; Ord. 
 12, s. 3.) 
 
 XI.— PRODUCTION OF DOCUMENTS. 
 
 134. The plaintiff or defendant may at any time after 
 answer, or, when the application is on behalf of the plain- 
 tiff, after the time for answering has expired, obtain an 
 order of course upon precipe, requiring the adverse party 
 to produce, within ten days after the service thereof, all 
 deeds, papers, writings, and documents in his custody or 
 power, relating to the matters in question in the cause, 
 under oath, and to deposit the same with the Clerk of 
 Records and Writs, or a Deputy Registrar of the Court, 
 for the usual purposes. (3rd June, 1853; Ord. 20, s. 1.) 
 
 An order obtained by a defendant before he has filed his answer, unless 
 by special leave of the Court, is irregular and will be discharged. When, 
 a demurrer has been filed, the plaintiff is not entitled to an order to pro- 
 duce pending the argument of the demurrer, Reidv. Baldwin, V. 0. Ea- 
 ten, 22nd August, 1861. 
 
 A note disputing the amount claimed as due, filed in a mortgage suit, 
 is not an answer and does not entitle the defendant to an order of course 
 for production by the plaintiff, Richardson v, Beaupre, 2 Cham, R. 64. 
 
 A defendant is not entitled to an order for the production of documents 
 by a co-defendant, Attorney-General v. Clapham, 10 Hare, App. 68 ; 
 Wtinne v. Humberslon, 5 Jur. N. S. 5 ; but after decree defendant can 
 compel production by a co-defendant. Hart v. Montefiore, 10 W. R, 97. 
 
 Persons not originally parties to the suit, but who will be bound by 
 the decree, may apply for production, Deni v. Dent, 1 L. R. Eq. 186; af- 
 ter a decree for administration, any creditor may apply for production of 
 documents relating to his claim, Re McVeagh, 1 D. J. & S. S99; and see 
 Forbes v. Tanner, 11 W. E. 414; Macrae v. Smith, 2 K. & J. 411; and 
 such parties are liable to be ordered to produce. 
 
 An arbitration which has been made a rule of Court, is not such a pro- 
 ceeding that the parties to it can take out a summons for production, Re- 
 Anglo-Amtrian Bank, 10 L. T. N, S. 869. 
 

 

OKDEK 134. 191 
 
 As to diacoTery of documents from a company or corporation, see Law 
 V. London Indisputable Policy Oompany, 10 Ha. App. 20 ; Attorney-Gen- 
 eral V. Mast Dereham Corn Exchange Oompany, 5 W. E 486 ; Ranger v. 
 Great Western Railway Company, 4 DeG. & J, T4; Attorney- General v. 
 Mercers' Company, 9 W. R. 83. 
 
 A secretary made a party for discovery cannot evade discovery by re. 
 signing his situation after the filing of the bill, Acomb v. Landed Estate 
 Company, 14 W. R. 387; Carew v. Davis, 21 Beav. 213. 
 
 If the party is required to produce or obtain information as to docu- 
 ments not in his possession, be is entitled to have the costs of so doicg 
 first tendered to him, Bethell v. Casson, 12 W, R. 200. 
 
 The documents are to be deposited at the ofSce of the Clerli of Records 
 and Writs, or of the Deputy Registrar, but the Court allows production 
 at the defendant's place of business, if he states that the documents are 
 in constant and necessary use in his business, Grane v. Cooper, 4 M. & C. 
 263; and see J/eriens u. Haigh, Johns. 735; but it is not sufficient to 
 shew that the books, &c., are in constant use, without also stating that 
 they cannot be removed without inconvenience, Hooper v. Gumm, 2 J. & 
 H. 602 ; and production is frequently ordered at the office of the solicitor 
 of the party ordered to produce, see Groves v. Groves, 2 W. R. 86 ; in such 
 case the solicitor may not charge the party inspecting, for attendances, 
 FlocUon V. Peake, 12 W. E. 1023. See also Macdonell v. McKay, 2 Cham. 
 R. 141. 
 
 A plaintiff obtaining an order for production, may inspect documents 
 which are ordinarily produced only on payment of customary fees, with- 
 out payment of such fees, Hoare v. Wilson, 4 L. R. Eq. 1. 
 
 The plaintiff's agent, for purposes of inspection, ought to be a legal 
 agent, or at least a generS,! agent, and not one appointed for the special 
 purpose, Draper v. Manchester, &c.. Railway Oompany, 3 D. P. & J. 23 ; 
 the order does not authorize inspection by a non-professional relation of 
 the plaintiff, Summerfield v. Pritckard, 17 Beav. 9 ; Williams v. Prince of 
 Wales Assurance Company, 23 Beav. 338 ; nor by a co-defendant, Bartley 
 V. Bartley, 1 Drew. 233 ; but on special application, and on a special case 
 being made out for it, an accountant may be allowed to inspect, Bonnar- 
 det V. Taylor, 1 J. & H. 333 ; but not an accountant who has any personal 
 interest in the case, Draper v. Manchester, dec. Rail. Co., 3 D. P. & J. 23 ; 
 and see Re Joint Stock Discount Oo , 15 W. R. 99 ; Swansea Vale Rail. 
 Co. V. Budi, 2 L. R. Eq. 274. 
 
 The party called upon to produce must make the affidavit, though he 
 insists that he cannot be compelled to produce any documents, for the 
 question of liability to production is distinct from the suffieienoy of the 
 affidavit, Rmnboldv. Farteath, 3 K. & J. 44; Lazarus v. Mozley, 6 Jur. 
 N. S. 1119 ; Nicholl v. Jones, 13 W. R. 451 ; see to Manby v. Beaiche, 27 
 L. T. 55 ; Quin v. Ratcliffe, 9 W. R. 65 ; Hanslip v. Kitton, 1 D. J. & 
 S. 440. 
 
 A plaintiff seeking to establish a partnership, is not bound by the de- 
 
192 ORDER 185. 
 
 fendant's view of the relevancy or otherwise, of papers which he seeks to 
 have produced, and although the defendant swears positively that they 
 have no bearing on the case made by the bill, the Court will order their 
 production, Saunders v, Furnival, 2 Cham. R. 49. 
 
 Where the affidavit filed is insufficient, the party requiring production 
 should not move to eomrcit, but should move for an order that the party 
 required to produce do file a farther and better affidavit; see Lazarus v. 
 Mosely, 5 Jur. N. S. 1119 ; Rumhold v. Forteath, 3 K. & J. 44 ; Harford 
 V. Lloyd, 2 W. R. 537 ; Jihodes v. Nield, 1 Cham. R. 131. 6 J'ltie/Zu, 
 
 135 Neither plaintiff nor defendant is to be bound to 
 produce, in pursuance of such order, any deed, paper, 
 writing or document, which a defendant admitting the 
 same by his answer to be in his custody or power would 
 not be bound to produce. (3rd June, 1853 ; Ord. 20, s. 1.) 
 
 Whatever discovery a defendant would have been bound to give by 
 answer, with respect to documents in his possession, must now be furn- 
 ished by the affidavit on production, and the ground upon which he relies 
 to excuse production must be stated with the same particularity, Nicholl 
 V. Elliott, 3 Grant, 536, ^ J'oa.e^U.'^A- 4^-, 
 
 Where a party admits documents to be in his possession, he is prima 
 facie bound to produce them, or assign a sufficient reason why he should 
 notj Green v. Aimey, 2 Cham. R. 138. 
 
 A party mast produce relevant documents in the possession of his 
 solicitor or agent, and cannot refuse because the solicitor says they are 
 irrelevant, Manby v. Bewicke, 8 D. M. & G. 476; Mcintosh v. Great Wes- 
 tern Mail. Co., 4 DeGr. & Sm. 544 ; nor can the solicitor refuse because he 
 claias his ordinary lien, Loekett v. Carey, 10 Jur. N. S. 144 ; Hope v. 
 Liddell, 7 D. M. & G. 331 ; Re Cameron's Coalbrook Rail. Go., 25 Bsav. 1 ; 
 but see Re Gregton, 26 Beav. 87 ; North v. Huber, 29 Beav. 437 ; if they 
 are the agent's private property they need not be produced, Colyer v. 
 Colyer, 9 W. R. 452 ; but see Bishop of Winchester v. Bowker, 9 W. R. 
 404. 
 
 Where the documents are in a foreign country, the party required to 
 produce must shew not only that it would be difficult to obtain them, but 
 that he has tried and failed, Mertens ». Haigh, 11 W. R. 792. 
 
 Documents in the possession of a stranger prior to the institution of 
 the suit, cannot be ordered to be produced in his absence, Burbridge «. 
 Robinson, 2 Mac. & G. 244 ; and see Bethell v. Cassgn, 1 H. & M. 806 ; so, 
 where a person not a party to the suit, has a joint interest in the docu- 
 ments, they will be protected, but full information must be given by the 
 affidavit, Edmonds v. Foley, 80 Beav. 282 ; Bayley v. Cass, 10 W. R. 370 ; 
 

ORDER 135. 193 
 
 Ford V. Dolphin, 1 Prew. 222 ; Lard Eglinton v. Lamb, 14 W. R. 170 ; Pen- 
 ney V, Goode, 1 Drew. Hi ; Beid v. Langlois, 1 Mac, & G. 627. 
 
 But where a party had in his possession letters written to him by a 
 person not a party to the suit, which were admitted to be material, he 
 was compelled to produce them, though they were marked '' private and 
 confidential," and the sender objected to their production, Hopkinson v. 
 Lord Burleigh, 2 L. R. Oh. 447 ; Wiman v. Bradslreet, 2 Cham. R. 77 ; and 
 see Penkethman v. White, 2 W. R. 380 ; Lee v. Hamerton, 12 W. E. 975. 
 In such a case an undertaking must be given, not to use the letters for 
 any collateral purpose, Richardson v. Hastings, 1 Beav. 354 ; Hopkinson v. 
 Lord Burleigh, 2 L. R, Oh. 447 ; and generally where a party obtains an 
 order for production and inspection of documents, he does so upon an 
 implied understanding not to make public any information so obtained, 
 or to communicate such information to persons- not parties in the suit, 
 Williams v. Prince of Wales Assarance Co., 23 Beav. 338. See too Rey- 
 nolds V. Godlee, 4 K. & J. 88 ; Enthoven v. Cobb, 5 DeG. & Sm. 595 ; 2 D. 
 M. & G. 632 ; Bowen v. Pearson, 11 W. R. 819. 
 
 Even if the Court should hold that there are grounds for not ordering 
 production of the documents, on account of a third person's interest 
 therein, still the party must give all the' information in his power as to 
 such documents as he has partial possession of, and make discovery of 
 their contents so far as they are material, l^aylor v. Rundell, Or. & Ph. 
 104 ; Bovill v. Cowan, 15 W. R. 608 ; Clinch v. Financial Corporation, 2 
 L. R. Eq. 271. ^ ^la-t^ct. X/. 4 i' 
 
 The general rules as to privilege are applicable to the protection of 
 documents from discovery, Wadeer v. East India Co., 2 Jur. N. S. 
 407 ; Clegg v. Edmonson, 22 Beav. 125. 
 
 A party cannot be compelled to produce communications between him- 
 self and his solicitor relating to the matter in litigation, though no 
 dispute had arisen at the time they were written, Ford v. Da Pontes, 7 
 W. R. 299 ; Lawrence v. Campbell, 4 Drew. 485 ; Simpson v. Brown, 33 
 Beav. 482 ; communications with a former solicitor, Marriott v. Anchor 
 Sfc. Company, 3 Giff. 304 ; Wilson v. Brunskill, 2 Cham. R. 147 ; but see 
 Patch V. Ward, 1 L. R. Eq. 436 ; and see McDonald v. Putman, 11 Grant, 
 258. S^ h*^ Prccllo^^c/,. iT0^.6,/../J,3-£.R. SC/>y.S6/- 
 
 Communications with a solicitor out of the jurisdiction, or the solici- 
 tor's clerk, or an accountant or skilled person employed by the solicitor, 
 are within the principle, Lawrence v. Campbell, 4 Drew. 485 ; Steele v. 
 Stewart, 1 Ph. 471 ; Churton v. Frewin, 2 Dr. & Sm, 390 ; Hooper v. 
 Gumm, 10 W. R. 644. The privilege does not extend to communications 
 made to the solicitor but not in his character of solicitor, Thomas v. 
 Rawlings, 27 Beav. 140 ; and see Hampson v. Hampson, 26 L. J. Ch. 612 ; 
 nor to letters passing between co-defendants, Betts v, Menzies, 26 L. J. 
 Ch. 528 ; nor to the information which the solicitor has derived from 
 collateral sources, not directly from the client, Marsh v. Keith, 1 Dr. & 
 
 13 
 
194 ORDER 135. 
 
 Sm. 342; Ford v. Tennant, 32 Beav. 162; iJe Land Credit Society, 15 W. 
 R. 703. 
 
 The solicitor cannot object to produce if his client does not object, 
 Jie Cameron's Coalbrook Rail. Co. 25 Beay. 1. 
 
 Professional opinions given partly for the benefit of the party requiring 
 production are not privileged, Reynolds v. Godlee, 4 K. <t J. 88 ; Talbot v. 
 Marshfield, 13 W. R. 885 ; Wynne v. Humberstone, 27 Beav. 421 ; 32 
 h. T. 306. 
 
 ■Where fraud is charged, no privilege^ can be claimed for documents 
 relating to the alleged fraud, Feaver v. Williams, 11 Jur. N. S. 902 ; 
 Phillips V. Holmer, 15 W. R. 578; but see Charlton v. Coombes, 4 Giff. 
 S72 ; MorntTigton v. Mornington, 2 J. & H. 697. 
 
 Documents tending to criminate are priYilegedj see Waters v. Earl of 
 Shaftsbury, 14 W, R. 259; Howe v. McKeman, 30 Beav. 647; but it is- 
 not the practice to allow either of the Statutes of Elizabeth to be an 
 excuse for resisting discovery, Bunn v. Bunn, 12 W. R. 561. 
 
 Documents which have manifestly no bearing on the issue to be tried 
 or which relate exclusively to the defendant's own title, er to the evidence 
 by which his case is to be established, need not be produced, Daw v. Eley 
 2 H. & M. 725 ; Ingilby v. Shafto, SZ Beav. 31; and see T^mey v. Bayley, 
 12 W. R. 633 ; Mansel v. Feeny, 2 J. & H. 323 ; De la Rue v. Dickenson^ 
 ! K. & J. 388; Crossley v. Stuart, 1 N. R. 426 ; Kay v. Hargreaves, 14 L. 
 T. N. S. 281; 
 
 The party refusing to produce must shew that the documents relate to 
 his title, and do not relate to that of the opposite party, Clegg v. Edmond- 
 sm, 3 Jur. N. S. 299 ; Lind v. Isle of Wight Ferry Co., 8 W. R. 540; 
 Bishop of Winchester v. Bowker, 29 Beav. 479 ; Felkin v. Lord Herbert, 
 9 W. R. 756 ; Bolton v. Corporation of Liverpool, 1. M. <fe K. 88 ; Jenhyn v. 
 Bushby, 14 W. R. 531. (> <P lOiltU^'^e./}. /9/. 
 
 But a defendant cannot refuse production, merelyly on the ground that if 
 the plaintiff's claim is unfounded, he has no interest in the documents, 
 Gresley v. Mousley, 2 K. & J. 288 ; and see Sumbold v. Forteath, 3 K. & 
 J. 44; Ferrierv. Atwool, 14 W. R. 597; Bugden v. South, 26 L. J. Oh- 
 425 ; Bates v. Master of Christ's College, Cambridge, 26 L. J. Oh. 449 ; 
 Quin V Ratcliffe, 9 W. R. 65 ; but see Robson v. Flight, 33 Beav. 268. 
 
 If a mortgagee denies the title of a mortgagor claiming to redeem,- 
 he must produce the mortgage deed, Patch v. Ward, 1 L. R. Eq. 436 . 
 Jones V.Jones, Kay. App. 6 ; Bridgewater v. DeWinton, 12 W. R. 40 ; but 
 not where he submits to be redeemed, Howard v. Robinson, 4 Drew. 522 ; 
 Weeks V. Stourton, 13 W. R. 489 ; see Freeman v. Butler, 33 Beav. 289 • 
 Smith V. Barnes, 1 L. R. Eq. 65. 
 
 A party need not produce documents relating only to his mode of 
 conducting his case, Ingilby v. Shafto, 33 Beav. 31 ; Gaudee v. Stansfteld, 
 4 DeG. & J. 1 ; Peile v. Stoddart, 1 Mac. & G. 1 92 ; Turner v. Burkenshaw„ 
 11 W. R. 861. 
 

 
ORDERS 136—138. 195 
 
 The party prodacing may seal up irrelevant parts, Mansd v. Ferny, 
 2 J. & H. 320 ; Talhot v. Marshfield, 1 L. R. Bq. 6 ; a party may make 
 copies of all parts of the document produced, not sealed up, Coleman 
 V. West Hartlepool Harbour Co., 5 L. T. N. S. 266. 
 
 A9 to where the parts of a document for which privilege is claimed 
 are so interspersed with the rest of the document that sealing up would 
 be impossible, see Churton v. Frewen, 2 Dr. & S. 390 ; Carew v. White, 5 
 Beav. 172. 
 
 136. The order shall not require personal service. If 
 the party required to obey the same has a solicitor, it is 
 to be sufficient to serve the same upon the solicitor. (3rd 
 June, 1853 ; Ord. 46, s. 9.) 
 
 If the party required to produce does not obey the order, the proper 
 course to enforce production is to serve him with a notice of motion to 
 commit. 
 
 This notice must be served four clear days, Kelly v. Smith, 1 Cham. R. 
 364 ; and may be served on the solicitor of the party, Ord. 296. 
 
 137. The affidavit to be made by the party who has 
 
 o the 
 
 (3rd^ 
 
 been served with the order may be in the form or to the y. 
 effect set forth in schedule G hereunder written. 
 June, 1853 ; Ord. 20, s. 2.) 
 
 XII.— EXAMINATION OF PARTIES. 
 
 138. Any party to a suit may be examined by the 
 party adverse in point of interest, without any special 
 order for that purpose ; and may be compelled to attend 
 and testify in the same manner, upon the same terms, 
 and subject to the same rules of examination, as any 
 witness, except as hereinafter provided. (3rd June," 1863 ; 
 Ord. 22, s. 1.) 
 
 The examination under this order may be had, in the case of the 
 plaintiff, at any time after answer, and before and at the hearing of the 
 cause, and in the case of defendant, at any time after answer, or the time 
 for answering has expired, Ord. 140. 
 
 The defendant may examine the plaintiff before a special examiner 
 under this order, though the cause has been set down and notice of 
 examination and hearing served, Clarke v. Hawke, 1 Cham. R. 346. 
 
196 ORDERS 139—140. 
 
 A defendant has a right to examine the plaiatifif as soon as his answer 
 is filed, though there are other defendants who have not answered, and 
 notice of the examination need not be served on such other defendants, 
 Fowler v. Boultan, 12 Gr. 48T ; service on the solicitor of a copy of the 
 Examiner's appointment for the examination of a party is snfBcient qotice, 
 and the appointment need not name the parties at length, Ibid; by 
 amending the Mil the defendant does not postpone his liability to be 
 examined till the time for answering the amended bill has expired, Ibid, 
 
 Where a party duly served with a subpoena, and the Examiner's 
 appointment, does not attend to be examined, a motion that he do 
 attend at his own expense or stand committed may be made ex parte^ 
 unless the Court sees fit to direct notice to be given, Ibid; but see Weir 
 V. Matheson, 1 Cham. K. 224. 
 
 Where the party refuses or neglects to attend, the Court may order the 
 bill to be taken pro confesso, or dismissed as the case may be, Ord. 144 ; 
 Prentiss v. Bunker, i Gr. 147. 
 
 A defendant may be examined viva voce in support of a motion, notice 
 of which has been given, although the time for answering has not ex- 
 pired, McClenneghan v. Buchanan, 1 Grant, 92. The examination of a 
 defendant under this order is a substitute for the discovery by answer ; 
 the depositions of the defendant, taken under this order may be read at 
 the hearing, and it is not necessary to call him as a witness at the exam- 
 ination of witnesses. Proctor v. Grant, 9 Grant, 31 ; and the examination 
 of a plaintiff by a defendant would be equally admissible at the hearing. 
 Ibid. Where a defendant has been examined on his answer ; the answer 
 and examination may be read in connection, and used as an affidavit in 
 support of a motion for decree, Mather v. Short, 1 4 Grant, 254. 
 
 A demurrer having been allowed, and leave given to amend, an appli- 
 cation for a commission to examine the defendant, before amending the 
 bill, was refused, Chance v. Henderson, 1 Cham. R. 30. 
 
 A party to the suit having received notice of being examined by the 
 opposite party, is not entitled to call for the production of papers in the 
 possession of his adversary, in order the better to enable him to give his 
 testimony, Howcutt v. Bees, 2 Gr. 268. 
 
 139- A person for whose immediate benefit a suit is 
 prosecuted or defended, is to be regarded as a party for 
 the purpose of Order 138. (3rd June, 1853 ; Ord. 22, 
 s. 1.) 
 
 140. A plaintiff may be so examined at any time after 
 answer, and before and at the hearing of the cause ; and 
 a defendant may be examined at any time after answer, 
 
ORDERS 141—146. 197 
 
 or after the time for answering has expired. (3rd June,, 
 1853 ; Ord. 22, s. 7.) 
 
 141. A party so examined may be further examined, 
 on his own behalf, in relation to any matter respecting 
 which he has been examined in chief. (3rd "June, 1853 ; 
 Ord. 22, s. 3.) 
 
 142. Where one of several plaintiffs or defendants, 
 who are joint contractors, or united in interest, has been 
 examined, any other plaintiif or defendant, united in 
 interest, may also be examined on his own behalf, or 
 on behalf of those united with him in interest, to the same 
 extent as the party actually examined, (3rd June, 1853 ; 
 Ord. 22, s. 3.) 
 
 143. Such explanatory examination must be proceeded 
 with immediately after the examination in chief, and not 
 at any future period, except by leave of the Court. (3rd 
 June, 1853 ; Ord. 22, s. 3.) 
 
 144. A person refusing or neglecting to attend at the 
 time and place appointed for his examination, or refusing 
 or neglecting to obey an order for production of docu- 
 ments, may be punished as for a contempt; and the 
 party who desires the examination, or production, in ad- 
 dition to any other remedy to which he may be entitled, 
 may apply to the Court, upon motion, either to have the 
 bill taken pro confesso, or to have it dismissed, according 
 to circumstances. (3rd June, 1853 ; Ord. 22, s. 5.) 
 
 145. The Court, upon isuch application, may, if it 
 thinks fit, order either that the bill be taken pro confesso,, 
 or that it be dismissed, as the case may be ; or make 
 such order as seems just. (3rd June, 1853; Ord. 22j 
 
 s. 5.) 
 
 146. Where the examining party uses any portion of 
 
198 OKDERs 14T— 149. 
 
 the examination so taken, it shall be competent for the 
 J)arty against whom it is used to put in the entire evi- 
 dence so taken, as well that given in chief as that in ex- 
 planation. (3rd June, 1853 ; Ord. 22, s. 6.) 
 
 147. A party to the record who admits, upon his ex- 
 amination, that he has in his custody or power any deed, 
 paper, writing, or document relating to the matters in 
 question in the cause, is to produce the same for the in- 
 spection of tile party examining him, upon the order of 
 the Court, or of the Master, or Examiner, before whom 
 he is examined, and for that purpose a reasonable time 
 is to be allowed. But no party shall be obliged to pro- 
 duce any deed, paper, writing, or document which would 
 have been protected under the former practice. (3rd 
 June, 1853 ; Ord. 22, s. 4.) 
 
 As to production of documents, see Orders 134 & 135, and notes. 
 
 148. Either party may appeal from the order of the 
 Master, or Examiner; and thereupon such Master, or 
 Examiner, is to certify under his hand the question raised 
 and the order made thereon ; and the costs of appeal are 
 to be in the discretion of the Court. (3rd June, 1853 ; 
 Ord. 22, s. 4.) 
 
 XIII.— REPLICATION— JOINING ISSUE. 
 
 149. One replication only is to be filed in a cause, un- 
 less the Court orders otherwise ; it is to be in the form 
 set forth in Schedule H hereunder written, or as near 
 thereto as circumstances admit and require ; and upon 
 the filing of the replication the cause is to be deemed at 
 issue. (3rd June, 1853; Ord. 18, s. 1.) (Eng. Con. 
 
 Ord. 17, r. 2.) 
 
 Where by error, plaintiff has filed replication before all the defendants 
 have answered, leave may be given (but only on notice of motion) to file 
 
<f,c4^ ^ AA«L<.4,t^,_tv^^^y'A. ^c(Ax^rc^c^^ i^^i...,A-jy/£yiUx : 
 
 d^ So Cj-i/ku^ A^^oUC,^ olc^i ^ ,P ' iUe:^'c4ty XltU^p^ SZ S'>o^S.i. 
 
ORDERS 150—132. 199 
 
 a fresh repUoatioQ, Stinton v. Taylor, 4 Hare, 608 ; and see Rogers v . 
 Hooper, 2 Drew. 97. After replication filed, an order of course to amend 
 is irregular, Hitchcock v. Jaques, 9 Bear. 192. 
 
 Where the plaintiff had set the cause down for examination and served 
 notice without a replication being filed, leave to file one nimc pro tune 
 was given on payment of costs, Beckett v. Bees, 1 Grant, 434. 
 
 Applications to withdraw , replication cannot be made after witnesses 
 have been examined, Oascoigne v. Chandler, 3 Swanst 420 ; Bousfield v. 
 Mould, 1 DeG. & Sm. 347 ; and see Horton u B rocklehurst, 29 Beav. 503. 
 
 A supplemental answer may be filed, by consent, after replication is 
 filed, without withdrawing it. Parsons v. Hardy, 21 L. J. Oh. 400. 
 
 An application for leave to withdraw replication and amend the bill 
 by adding parties where the cause had been set down for examination 
 and where the amendment would postpone the examination till the fol- 
 lowing term, was refused with costs, the plaintiffs having been guilty of 
 laches in making the application, Woodstock v. Niagara, 1 Cham. R. 166, 
 
 150. A plaintiff is to admit in his replication such 
 facts alleged by the answer as ai-e to the knowledge of 
 the plaintiff true ; or as he can readily ascertain to be 
 true, or as he has reason to believe and doth believe to 
 
 ■ be true; and it shall be sufficient if such admissions are 
 expressed to be only for the purposes of the suit in which 
 the same are made. (6th Feb., 1865 ; Ord. 7.) 
 
 151. Admissions are, in all cases where it is practica- 
 ble, to be by reference to the numbers of the paragraphs 
 in the answer to which they relate, with such qualifica- 
 tions as may be necessary or proper for protecting the 
 interesls of the party making the admissions ; and it 
 shall not be necessary or proper to allege ignorance of 
 any fact stated in the answer, or any other reason for not 
 admitting any fact therein alleged. (6th Feb., 1865; 
 Ord 9.) 
 
 152. ,Where the plaintiff has not obtained an order to 
 amend his bill, he is either to file his replication, or set 
 down the cause to be heard on bill and answer, within 
 one month after the filing of the last answer. (3rd June, 
 1853 ; Ord. 18, s. 2.) 
 
20O ORDERS 163—156. 
 
 The " last answer " means the last answer of all the defendants, Collett 
 V. Preston, 3 Mac. & G. 432 ; Arnold v. Arnold, 1 Phill. 805 ; Farman v. 
 Gray, 9 Beav. 200 ; Stinton v. Taylor, 4 Hare, 608. 
 
 The -time of the long vacation is not reckoned in the computation of 
 the time allowed for filing replications, or setting down causes under this 
 order, Ord. 408. 
 
 153. Where the plaintiff amends his bill, and no an- 
 swer is put in thereto, and no notice of an application 
 for further time to answer is served, within seven days 
 after service of the bill as amended, the plaintiff, after 
 the expiration of such seven days, but within fourteen 
 days from the time of the service of the bill, is either to 
 file his replication, or set down the cause to be heard 
 upon bill and answer, or serve notice of motion for a de- 
 cree. (3rd June, 1853 ; Ord. 18, s. 3.) 
 
 154. Where the plaintiff amends his bill after answer, 
 and a defendant, within seven days after the service of 
 the bill as amended, serves notice of an application for 
 further time to answer the amendments, but such appli- 
 cation is refused, the plaintiff is, within fourteen days 
 after such refusal, either to file his replication, or set 
 down the cause to be heard on bill and answer, or serve 
 notice of motion for a decree. (3rd June, 1853; Ord. 
 18, s. 3.) 
 
 155. Where a defendant puts in an answer to amend- 
 ments, the plaintiff must either file his replication, or set 
 down the cause to be heard on bill and answer, or serve 
 notice of motion for a decree, within fourteen days after 
 the filing of such answer, unless he obtains, in the mean- 
 time, an order for leave to amend the bill. (3rd June, 
 1853 ; Ord. 18, s. 3.) 
 
 XIV.— NOTICE TO ADMIT. 
 
 156- After replication is filed, any party may call on 
 the other by notice to admit any document, saving all 
 
ORDERS 157 — 158. 201 
 
 just exceptions; and in case of refusal or neglect to ad- 
 mit, the costs of proving the document shall be paid by 
 the party go neglecting or refusing, whatever the result 
 of the cause may be, unless at the hearing the Judge cer- 
 tifies that the neglect or refusal to admit was reasona- 
 ble ; and no costs of proving any document are to be 
 allowed, unless such notice is given, except in cases 
 where the omission to give the notice was in the opinion 
 of the taxing officer a saving of expense. (6th Feb. 
 1865 ; Ord. 16.) 
 
 This order is founded upon the Imp. Act 21 & 22 Vic c. 27, s. 1, which 
 is, however, limited to cases " in which all parties to the suit are compe- 
 tent to make admissions." 
 
 Admissions cannot be made on the part of an infant, unless perhaps 
 when the admissions are for his benefit, Daniel's Pr., 16T ; but assignees in 
 bankruptcy, and a married woman whose husband was a c6-defendant, 
 were held to be competent under the corresponding section of the Eng- 
 lish Act, Churchill v. Collier, 1 N. R. 82. 
 
 The order has been held to apply to all documents the party intends to 
 adduce in evidence, and is not confined to such only as are in his custody 
 or control, Rutter v. Chapman, 8 M. & W. 388, including foreign judg- 
 ments, Smith V. Bird, 3 Dowl. 641, and documents the validity of which 
 is directly in issue, Spencer v. Barough, 9 M. & W. 425. 
 
 The admission of handwriting of a bill of exchange did not preclude an 
 objection to admissibility for want of a stamp, nor admisoion of signature 
 suflScient to dispense with the production of the original document, Vane 
 V. Whittington, 2 Dowl. N S. T57. Nor did the admission of a copy, be- 
 ing a mere copy, allow that copy to be used in the unexplained absence 
 of the original, Sharpe v. Lamb, 11 A. & E. 805. 
 
 An unintentional admission, contrary to the fact, having occurred in an 
 answer, a supplemental answer was allowed to be filed on payment of 
 costs, Cooper v. XJUoxeter Burial Board, 1 H, & M. 680. 
 
 157. The notice may be in the form set forth in Sched- 
 ule I hereunder written, and is to be served not less than 
 two clear days before the day appointed for inspection. 
 (6th Feb. 1865; Ord. 17 and 18.) 
 
 XV.— SETTING DOWN AND HEARING. 
 
 158. Any party to the suit may apply to the Court 
 upon notice to all parties, to change the venue, and there- 
 
202 ORDERS 159—161. 
 
 upon the Court is to make such order as the circum- 
 stances of the case require, and the order is to be upon 
 such terms and conditions, as to costs and otherwise, 
 as the Court thinks right to impose. (23rd Dec. 1857 ; 
 Ord. 2, s. 2.) 
 
 The practice as to changing the venue is the same as the practice at 
 law, for changing the venue on special grounds. The application should 
 not be made until after issue joined, or until it can be clearly seen what 
 the issue will be, Begg v. Forbes, 23 L J. C. B. 222 ; Sodge v. Church- 
 ward, 5 0. B. 495 ; Dowler v. Collis, 4 M. <fe W. 531. 
 
 As the plaintiff has to elect before filing his bill at what place he will 
 bring his cause on, an application to change the venue is generally made 
 on behalf of the defendants. As to the circumstances necessary to be 
 shewn to obtain an order changing the venue, see ArcKbold's, Pr., 1352. 
 
 Where on an application to change the venue it was objected that 
 publication having passed, the motion should have been to open publica- 
 tion, and to amend the bill by introducing words, changing the venue, 
 a new motion was allowed to be made at once without notice, and the 
 application granted on terms, Baxter v. Campbell, 2 Cham. E. 39. 
 
 159. Where issue has been joined three weeks before 
 the commencement of the next ensuing hearing term at 
 the place where the venue is laid, publication is to pass 
 at the close of the term. (23rd Dec. 1857; Ord. 2, 
 s. 5.) 
 
 160. Where issue has been joined less than three 
 weeks before the commencement of the next ensuing 
 hearing term at the place where the venue is laid, pub- 
 lication is to pass at the close of the following term. 
 (23rd Dec. 1857 ; Ord. 2, s. 5.) 
 
 161. At any time after issue joined, the cause may be 
 set down for hearing by any party to the cause. (23rd 
 Dec. 1857 ; Ord. 2, s. 6.) 
 
 In England when the cause is set down for hearing by a defendant, it 
 is sufficient for him to serve notice thereof on the plaintiff; it is the duty 
 of the plaintiff to serve the other defendants, Clarke v. Dunn, 5 Mad . 
 ili; Smith v. Wells, 6 Mad. 193 ; but see Ord, 163, which requires the 
 

 
ORDERS 162—164. 203 
 
 ■defendant, where he sets down the cause, to serre notice of hearing on 
 the other parties to the cause. 
 
 162. If the plaintiff neglects to set down the cause for 
 hearing, at the next sitings at the place where the venue 
 is laid, in ease issue has been joined three weeks before 
 the commencement of such sittings, the defendant may 
 set the cause down for hearing at the next ensuing sit- 
 tings, or at Toronto on any Monday on which the Court 
 sits for hearing causes, and may serve notice of hearing 
 on the -other parties to the cause. (23rd Dec. 1857 ; 
 Ord. 3, s. 6.) 
 
 The old Order 3, of Dec, 1851, s. 6, allowed the defendant to set the 
 cause down for hearing, if the plaintiff neglected to set the same down 
 within one month after publication had passed. 
 
 Where the defendant set a cause down for hearing before the time 
 limited had expired, and the plaintiff moved to strike the cause out of the 
 list for irregularity, it was struck out with costs, although by the plain- 
 tiff's delay in giving notice of the irregularity, the defendant was unable 
 agaiu to set the cause down for the ensuing term, Oity of Toronto v. Mc- 
 Gill, 1 Cham. R. 16. 
 
 163- Causes set down for hearing are to be entered 
 with the Clerk of Records and Writs, or a Deputy Regis- 
 trar, at least fourteen days before the commencement of 
 the next ensuing term at the place where the venue has 
 been laid ; and notice is to be served by the party set- 
 ting the same down upon all parties at least fourteen 
 days before the commencement of the term, (,23rd Dec. 
 1857; Ord. 2, s. 7.) 
 
 See note to Order 161. 
 
 164. The Clerk of Records and Writs, or the Deputy 
 Registrar is to prepare a list of all causes entered- for 
 hearing, and each cause is to be entered in such list in 
 the order in which it has been set down, and causes are 
 to be called on according to the list. (23rd Dec, 1857; 
 Ord. 3, s. 4.) 
 
204 ORDERS 165—166. 
 
 165. Where the hearing is to be had in any town or 
 place, other than that in which the pleadings are filed, it 
 shall be the duty of the party setting down the cause to 
 deliver to the Clerk of Records and Writs, or the Deputy 
 Registrar with whom the pleadings are filed, a sufficient 
 time before the day fixed for the hearing, a, precipe re- 
 quiring him to transmit to the Registrar or Deputy Re- 
 gistrar, at the place where the hearing is to be had, the 
 pleadings and such other papers as may be specified in 
 the precipe ; and at the same time to deposit with him a 
 sufficient sum to cover the expense of transmitting and 
 re-transmitting such pleadings and papers ; and there- 
 upon it shall be the duty of the Clerk of Records and 
 Writs, or deputy Registrar, forthwith to transmit the 
 pleadings and such other papers as may be specified, ac- 
 cordingly. (10th Jan. 1863 ; Ord. 3.) 
 
 This order is an extension of the original order of January, 1863, which 
 provided for the transmission of the pleadings only. 
 
 166. No evidence to be used on the hearing of a cause 
 olher than the examination of a party under Order 138, i^ 
 to be taken before any Examiner or Officer of the Court, 
 unless by the order first had of the Court or a Judge 
 thereof, upon special grounds adduced for that purpose. 
 (10th Jan. 1863 ; Ord. 2.) 
 
 At the hearing of any cause, or of any further directions therein, 
 affidavits of particular witnesses, or affidavits as to particular facts and 
 circumstances may be used by consent, or by leave of the Court ; and 
 such consent may be given on behalf of persons under disability, with the 
 approbation of the Court, Ord. 176. 
 
 Formerly any exhibit which might have been proved viva voce at the 
 hearing, might be proved by the affidavit of a witness who would have 
 been competent to prove the same at the hearing, an order having been 
 taken out for that purpose. 
 
 It is presumed that under the present practice, deeds and other docu- 
 ments, which might have been proved by affidavit under an order obtained 
 for that purpose, will be permitted to be proved in a similar way, where 
 no injustice will be done to the opposite party by permitting such mode, 
 of proof. 
 
ORDERS 167—168. 205 
 
 Nothing could be proved viva voce under such an order, that required 
 more than the proof of handwriting, or that admitted of cross-examination 
 Lake V. Skinner, 1 J. & W. 15 ; Pom/ret v. Windsor, 2 Ves. Sen. 4^9 ; and a 
 will could not be proved at the hearing as a deed could, ffarris v. Ingle- 
 dew, 3 P. Wms. 93 ; nor a deed, when the defendant by his answer alleged 
 fraud in connection with the obtaining of it, Barfield v. Kelly, i Russ. 
 355. 
 
 Where the execution of a deed is not contradicted, but its validity only 
 is disputed, it may be proved viva voce at the hearing, Booth v. Creswick 
 8 Jur. 323. 
 
 When a cause is set down for hearing upon bill and answer, exhibits 
 may be proved at the " hearing by affidavit, Eillaly v. Graham, 2 Grant 
 281 ; Neville v. Fitzgerald, 2 Dr. &, W. 530 ; Chalk v. Maine, 13 Jur. 981. 
 
 Where an instrument is produced upon notice by an adverse party who 
 claims- an interest in the cause under such instrument, the party calling 
 for production is not bound to prove its execution, Ohisholm v. Sheldon, 
 2 Grant, 178. 
 
 167- Witnesses resident out of the jurisdiction may be 
 examined, as heretofore, upon commission. (23rd Dec. 
 1857 ; Ord. 2, s. 3.) 
 
 The costs of a foreign commission form part of the costs in the cause, 
 Oolborne v. I'homas, 4 Grant, 169. 
 
 Where a defendant refused to attend before commissioners appointed 
 to take his evidence abroad, the Usual order to set the cause down, to be 
 taken pro eonfesso, was made, Prentist v. Bunker, 4 Grant, 147. 
 
 As to opening publication and allowing the issue of a foreign commis. 
 sion, see Blain v. Terryberry, 1 Cham. E. 104. 
 
 After notice of motion served for an order to administer the estate of 
 an intestate, a commission may be obtained for the examination of wit- 
 nesses, with a view of establishing the fact that the party applying for the 
 order is one of the next of kin of the intestate, Farrell v. Cruikshank, 1 
 Cham. R. 12. 
 
 It is not necessary to obtain an order for leave to open a foreign com- 
 mission which has been duly returned ; the proper practice is to open it 
 without order in the presence of all parties, Chalmers v. Pigott, 1 Cham. 
 R. 285 ; but see Neale v. Withrow, 4 U. C. L. J. 88. 
 
 168. When a cause is called on to be heard, the wit- 
 nesees of all parties are to be examined, unless the Court, 
 upon a previous application, has postponed the exam- 
 ination ; or unless the Judge before whom the cause is 
 brought on sees fit to postpone the examination, or to 
 
206 ORDER 169—170- 
 
 allow time for the production of further evidence ; and 
 where the examination is postponed, or where time is 
 ' allowed for the production of further evidence, the order 
 is to be upon such terms, as to the costs or otherwise, as 
 the Court thinks right to impose. (23rd Dec, 1857 ; 
 Ord. 2, s. 10.) 
 
 The examination of a witness de bene esse is permitted where there is 
 danger of losing the testimony of an important witness from death, hj 
 reason of age, (as where the witness is seventy years old and upwards) or 
 dangerous illness, or where he is the only witness to an important fact. 
 
 Where the reason for the application is, that the witness ia dangerously 
 ill, or over 70 years of age, the order may be obtained ex parte, McKenna 
 V. Everitt, 2 Beav. 288 ; Oliver v. Dickey, 2 Cham. E. 87 ; but unless the 
 illness is dangerous, notice must be given, Anderson v. Anderson, 1 Cham- 
 B. 291. 
 
 So where the application wag made because the witness was about to 
 leave the jurisdiction, an car parte order was refused. Early v. MeGill, 1 
 Cham. R. 257. 
 
 On an application for an order to examine de bene esse on the ground that 
 the witness is the only one who can prove a fact, afldavits should be 
 produced shewing the particular facts as to which he can give evidence 
 and that he is the only witness, Pearson v. Ward, 1 Cox. 177 ; Hope v. 
 Hope, 3 Beav. 317. 
 
 The plaintiff may, in a proper case, obtain an order for the examination 
 of a witness de bene esse, as'soon as his bill is filed. Sew v. Clarke, 1 S. & 
 S.'IOS; but a defendant cannot obtain such an order till he hag answered^ 
 Williams v. Williams, 1 Dick, 92. 
 
 All parties are entitled to notice of the time and place of the examina- 
 Mo'a,,Loveden v. Milford, 4 Bro. C . 0. 540. 
 
 169. Causes are to be argued at the same time that 
 the witnesses are examined. (10th Jan. 1863 ; Ord. 2.) 
 
 no. A defendant may be examined as a witness with- 
 out an order for that purpose, on behalf either of the 
 plaintiff or of a co-defendant, upon points as td which 
 the party to be examined is. not interested. A plaintiff 
 may be examined, without an order, under similar cir- 
 cumstances, by a co-plaintiff or by a defendant. (3rd 
 June, 1853 ; Ord. 22, s. 2.) 
 
ORDERS 171—176. 207 
 
 171. Such examination is not to preclude the Court 
 from making a decree either for or against the party ex- 
 amined, and the evidence given on such examination 
 may be rebutted by adverse testimony. (3rd June, 1853 ; 
 Ord. 22, ss. 2 and S.) 
 
 172 . A witness may be recalled for further examina- 
 tion, as in trials at nisi prius, without any order of the 
 Court having been obtained for that purpose. (23rd Dec. 
 1857 ; Ord. 2, s. 12.) 
 
 173. Articles are not to be filed for the purpose of dis- 
 crediting a witness : but witnesses may be called for that 
 purpose, without the leave of the Court ; and they are to 
 be examined at the same time as the other witnesses, 
 unless the Court otherwise orders. (23rd Dec. 1857 ; 
 Ord. 2, s. 13.) 
 
 174. Any party is to be at liberty to make use of the 
 evidence of a witness adduced by another party to the 
 suit. (23rd Dec. 1857 ; Ord. 2, s. 15.) 
 
 175. A party shall be entitled, upon notice without 
 order, to use depositions taken in another suit, in cases 
 where under the former practice he was entitled, upon 
 obtaining the common order for that purpose, to use such 
 depositions. (28th April, 1862.) 
 
 176. At the hearing of any cause, or of any further di- 
 rections therein, affidavits of particular witnesses, or affi- 
 davits as to particular facts and circumstances, may be 
 used by consent, or by leave of the Court ; and such 
 consent may be given on behalf of persons under disa- 
 bility, with the approbation of the Court. (3rd June, 
 1853 ; Ord. 20, s. 4.) 
 
 Affidavits have been admitted at the hearing as evidence that no ap- 
 pointment of trust funds had been made by deceased persons, in support 
 of a suit by a party claiming in default of appointment, Devet/ v. Thornton, 
 
208 ORDERS 177—179. 
 
 9 Ha. 222, 233 ; and see Smith v. Leathart, 20 L. J. Ch, 202. So, where 
 a class of children was interested, the Court, instead of directing the 
 preliminary class inquiry, received the affidavits of the parents proving 
 the class, and then allowed the cause to be heard, Buth v. Watkinf, 14 
 Beav. 33 ; and see Bear v. Smith, 5 DeG. & S. 92 ; Fowler v. Beynell, 18 
 Jur. 1019. 
 
 Matters raising a new issue not noticed in the pleadings cannot be 
 proved under this order; Howard v. Chaffers, 11 W. R. 585; and see 
 Hoghton v. Hoghton, 15 Beav. 278. 
 
 An affidavit as to the conduct of the plaintiff cannot be received at the 
 hearing, after the Master's report is made, Bateman, v. Margerison, 2 W. 
 E. 60T ; Evani v. Lewis, 2 L. T. N. S. 659 ; where Fallows v. Lord Dillon, 
 2 W. R. 507, was not followed. 
 
 177. Exhibits put in at the hearing of a cause are to 
 be marked thus : " In Chancery, [short title] . This ex- 
 hibit (the property of ,) is produced by the 
 plaintiff {or defendant C, as the case may be,) this 
 
 day of 186 , A. B.," (Registrar or Deputy 
 
 Registrar.) (1st April, 1867 ; Ord. 4.) 
 
 178. Where a party or witness is examined at the 
 hearing of a cause, or a document is put in as evidence 
 and marked by the Registrar or the Deputy Registrar, 
 the deposition of the party or witness so examined, or the 
 document so put in, is not to be withdrawn as evidence 
 without the leave of the Court. (20th Dec. 1865 ; Ord, 16.) 
 
 179. Where judgment is reserved, the exhibits used 
 upon the hearing must be deposited with the Registrar, 
 or Deputy Registrar, for the use of the Court. All ex- 
 hibits deposited under this order must be described in a 
 schedule, to be prepared by the party depositing the 
 same. The schedule shall be in duplicate, one copy of 
 which, signed by the Registrar, or Deputy Registrar 
 shall be handed to the parly depositing the exhibits, and 
 the other retained for the use of the Court. Where this 
 Order has not been complied with, the case will not be 
 considered as standing for judgment. (13th April, 1859 ; 
 Ord. 3.) 
 
ORDERS 180—183. 209 
 
 180. Where it becomes necessary to adduce evidence, 
 or to incur expense otherwise, in order to. establish or 
 prove facts which, in the judgment of the Court upon the 
 hearing of the cause, ought to have been admitted, it 
 shall be competent to the Court to make such order in 
 respect to the costs occasioned by the proof of such facts, 
 as under all the circumstances appears to be just. (6th 
 Feb. 1865; Ord. 11.) 
 
 181- The solicitors for the several parties are to attend 
 in Court when a cause is appointed to be heard, and 
 during the hearing thereof. (13th April, 1859 ; Ord. 2.\ 
 (Eng. Con. Ord. 21, r. 11.) 
 
 182. Where, upon the hearing of a cause, it appears 
 that the same cannot conveniently proceed by reason of 
 the solicitor for any party having neglected to attend 
 personally or by some person in his behalf, or having 
 omitted to deliver any paper necessary for the use of the 
 Court, and which, according to its practice, ought to have 
 been delivered, such solicitor shall personally pay to the 
 parties such costs as the Court thinks fit to award. (13th 
 April, 1859 ; Ord. 2.) {Eng. Con. Ord. 21, r. 12.) 
 
 The solicitor is personally liable under this order, Cook v. Broamhead, 
 16 Ves. 133 ; Courtney v. Slock, 2 Dr. & W. 251 . 
 
 The client not relieved of the consequences of the solicitor's neglect 
 in ignorance of this rule without the consent of , the other party, Walms- 
 ley V. Froude, 1 R. & M. 331. 
 
 As to restoring causes struck out on account of the absence of the 
 counsel, see Harvey v. Reium, 12 Jur. 445 ; where, by accident, replication 
 wiis not duly filed, Atty.-Gen. v. Fellowes, 6 Mad. HI. 
 
 183. Where a defendant makes default at the hearing 
 of a cause, the Court is to make such decree as it thinks 
 fit. This decree is to be absolute in the first instance, 
 without giving the defendant a day to shew cause, and 
 is to have the same force and effect as if the same had 
 been a decree nisi in the first instance, and had been 
 
210 ORDER 184. 
 
 afteiwards madC: absolute in default of cause shewn by 
 the defendant, (23rd Dec., 1867; Ord. 3, s. 7.) (Eng. 
 Con. Ord. 23, r. 12.) 
 
 Under this rule the plaintiff takes such a decree as on the evidence, and 
 pleadings he is entitled to, Evans v. Williams, 6 Beav. 118 ; Hakewellt. 
 Webber, 9 Hare, 541 ; and see Hughes v. /ones, 26 Beav. 24 
 
 WJiere the aflSdavit of service of. the subpoana to hear, judgment is- 
 irregular, the cause must be set down again, Evans v. Evans, 2 Keen^ 
 604 ; a decree taken on production of an insafficient affidavit of 
 service, is irregular, Powc/i v. Mo,rtin, 1 J. & W. 292 ; Rigg p. Wall, 3 
 M. & C. 505. 
 
 184. If the plaintifT causes the bill to be dismissed, on 
 his own application, after it has been set down to be 
 heard; or if the cause is called on to be heard, and the 
 plaintiff makes default, and by reason thereof the bill is 
 dismissed ; in either case, the dismissal is to be equiva- 
 lent to a dismissal on the merits, unless the Court orders 
 otherwise, and may be set up in bar to another suit for 
 the same matter. (23rd Dec, 1857 ; Ord. 3, s. 8.) {Eng. 
 Con. Ord. 23, r. 13.) 
 
 As the plaintiff has the entire control of the suit, he may at any time 
 before the hearing, obtain an ordei dismissing the bill upun payment of 
 the d^'fendant's costs ; and it makes no difference whether the bill is 
 filed on his own behalf only, or on behalf of himself and all others of the 
 same class, Curtisa v. Lloyd, 4 M <fe C. 194; Manton v. Roe, 14 Sim 353. 
 Where, there are several plaintiffs they must all join in the application to 
 disuiiss. 
 
 After the cause has been heard and is standing for judgment, the plain- 
 tiff cannot dismiss his bill except on a special application. Smith v. Part 
 Hope Harbour Co, 6 U. C. L. J. 189i 
 
 After decree, a bill cannot be dismissed, except by consent, Cooper v. 
 Leiois, 2 Phill. 178; and even then only upon a leheariDg, Lashley v. 
 Hogg, \\ Ves. 602 ; whether instituted by the plaintiff on his own behalf,. 
 Bluck V. Colnaghi, 9 Sim. 411 ; or on behalf of himself and others of the 
 same class, Handford v. Stork, 2 S. & S. 196. 
 
 The proper course after decree, is to apply for an order to stay all pro- 
 ceedings, which order' will be made. by, consent, or upon a fit case being, 
 proved. Egg v. Dewey, 11 Beav. 221. 
 
lU. S<^6Aac^c^Jfyi.280. 
 
OHDER 185. 211 
 
 Where the defendant submits to the plaiAtiff's demand, and the only 
 question between the parties is the costs, pf the sujt, it ought not to 
 be proceeded in, but an application sbould b^ made, to the, Court, ^o 
 avoid the expense of further proceedings, Sivell v. Abraham, 8 Bear- 
 S98; if, however, there is any question in dispute to which the de- 
 fendant does not submit, tlie Court will not interfere summarily, and 
 stop the suit, Field v. Robinson, 7 Beav. 66 ; McNaughtan v. Hasher, 12 
 Jur. 956. 
 
 The defendant is not entitled to a dismissal on plaintiff's default to 
 appear, without producing a regular affidavit of service of the notice 
 of hearing, Riggv. Wall, 3 M. & C. 505 ; but see Charlton v. Mien, 9 Ha. 
 App. 67 ; £ell v. Hornby, 14 Beav. 439. 
 
 A plaintiff has been allowed to dismiss his bill without costs, under 
 the following circumstances: (1) If the bill was filed under a mistake 
 common to both parties, Broughton v. Lashmer, 5 M. <fe C. 136 ; and see 
 Hansard V. Hardy, 18 Yes. 460 ; (2) If the defendant has given the relief 
 sought by the suit, Wilde v. Wilde, 10 W. R. 868, 503 ; or if the bill has 
 become unnecessary, but was originally justified by the defendant's mis- 
 conduct or fraud, Elsey v. Adams, 2 D. J. & S. 147 ; Knox v. Brown, 2 
 Bro. 0. C. 186 ; Oooday v. Sleigh, 3 W. R. 87; but see Ventilation and 
 Sanitary Improvement Co. v. Edehten, II W. R. 613 ; (3) Where the plain- 
 tiff has been misled by a suggestion of the Court, Lister v. Leather, 1 
 DeG, & J. 361. 
 
 XVI.— DECREES AND ORDERS. 
 
 185. The evidence read upon the hearing is not to be 
 stated in the decree, but must be entered in the Regis- 
 trar's book at the time of the hearing. (3rd June, 1853 ; 
 Ord. 43, s. 10.) 
 
 The evidence read by each side must be stated distinctly by counsel, in 
 order that the same may be entered by the Registrar before the case is 
 closed, and a schedule of all the exhibits used upon the hearing must be 
 deposited with the Registrar, Ord. 63. 
 
 Where plaintiff reads part of a defendant's answer, the whole is to be 
 entered as read ; a defendant not called on for his defence may enter all 
 his evidence as read ; proceedings in former suits respecting the same 
 matters, may be entered as read, Manby v. Beii>icke,3 Jur. N. S. 685 ; and 
 on a motion for decree, wherein a plaintiff can read a defendant's answer 
 without notice, he is entitled to have it entered as read. Bright v. Leger- 
 ton, 29 Beav. 69 ; and all affidavits which have been filed, and which a. 
 
212 ORDERS 186—189. 
 
 party gives notice that he will read on the hearing of a motion, though 
 not mentioned at such hearing, should be entered as read, Catholic Pub- 
 lishing Ifc. Co. 0. Wyman, 1 K. R. 49. 
 
 Where the reception of evidence has been objected to at the hearing, 
 the manner of entering should be such as to shew what evidence has been 
 received, Watson v. Parker, 2 Phill. 5 ; Parker v. Morrell, Ibid, 453. 
 Evidence not to be entered as read de bene esse, Drake v. Drake, 25 Bear. 
 641. 
 
 Evidence entered as read saving just exceptions. Gee d. Gurney, 8 
 Beav. 315 ; but entry in that way stated by Registrar to be irregular, 
 Sherwood v. Beveridge, 2 Coll. 536 ; and see Handford v. Handford, 5 
 Hare, 212. 
 
 Evidence which does not appear by the Registrar's minutes to have 
 been read ought not to be ordered subsequently to be entered,. £&n w. 
 Earl of Bute, 1 Bro. P. C. 465. 
 
 186- It shall not be necessary in any order to reserve 
 liberty to apply, but any party may apply ,to the Court 
 from time to time as he may be advised ; and where any 
 order directs the payment of money out of Court, it shall 
 not be necessary to direct that a cheque be drawn for 
 the purpose. 
 
 187. Orders are to be divided into convenient para- 
 graphs, and such paragraphs are to be numbered con- 
 secutively ; and where accounts are directed to be taken, 
 or enquiries to be made, the order may be in the form set 
 forth in schedule J hereunder written, with such variation 
 as the circumstances of the case require. (1st April, 
 1867 ; Ord. 8; 3rd June, 1853; Ord. 43, s. 11.) 
 
 This order is similar to Evg. Con. Ord 23, r. 15. 
 
 188- In all orders, sums are to be stated in dollars and 
 cents. (6th Feb., 1865; Ord. 45.) 
 
 189. Decrees or decretal orders are not to be enrolled 
 until the final decree or order in the cause has been pro- 
 nounced. (3rd June, 1853; Ord. 43, s. 12.) 
 
ORDERS 190—193. 213 
 
 190. If no petition for re-hearing is filed, within thirty 
 days after the entry of the final decree or order, the Clerk 
 of Records and Writs, at the instance of any party to the 
 cause, is to attach together the bill, pleadings, and other 
 proceedings, and is to annex thereto a fair copy of the 
 decree or decretal order signed by a Judge, and counter-^ 
 signed by the Clerk of Records and Writs, and the pa- 
 pers and proceedings so annexed and signed are to 
 remain of record in his office, and such filing is to be 
 deemed and taken to be an enrollment of the decree for 
 all purposes. (3rd June, 1853; Ord. 43, s. 12.) 
 
 It is not necessary to petition to enrol a decree after any lapse of timer 
 Anon, 1 Gr. 168. 
 
 191. A decree fouoded on a bill taken pro confesso is 
 to be passed and entered as other decrees. (3rd June, 
 1853; Ord. 14, s. 4.) (Eng. Con. Ord. 22, r. 10.) 
 
 It is essentially requisite to the perfect completion of erery decree, 
 that it should be passed and entered, Drummond v. Anderson, 3 Grant, 
 150. 
 
 All proceedings under a decree or order before it is entered, are irregu- 
 lar, Tohon V. Jervis, 8 Beav. 364. 
 
 192. Where a Queen's Counsel has held a sitting of 
 the Court under the Statute in that behalf, he is to in- 
 close to the Registrar, as soon thereafter as may be, a 
 statement signed by him, of his decree in each case 
 heard by him, with the date and place of hearing, and is 
 to set forth the terms of his decree either at full length or 
 otherwise, as the case may require. His judgment con- 
 taining the reasons for his decree, if he thinks fit to state 
 the saime in writing, is also to be transmitted to the Re- 
 gistrar for the information of the Court and the parties. 
 (10th Sept. 1866 ; Ord. 9.) 
 
 193. A decree made by a Queen's Counsel is to be ex- 
 pressed in the body thereof to be the decree of the Court^ 
 
214 ORDERS 194—197. 
 
 but the name of the Queen's Counsel is to be given in 
 the margin. (10th S6pt. 1866; Ord. 10.) 
 
 194. Interlocutory orders are not to be enrolled. (3rd 
 June, 1853; Ord. 43, s. 12.) 
 
 195- No order of course, and no order obtained ex, 
 parte and not being of a special nature, is to be entered 
 unless the entry theireof shall be directed by the Court or a 
 Judge ; bijt this provision is not to be construed as ap- 
 plying to decrees or decretal orders, or to final orders for 
 sale or foreclosure. (6th Feb. 1865 ; Ord. 20.) 
 
 196. In all cases where a person or party obtains an 
 order from the Court, or from a Master, upon condition, 
 and fails to perform or comply with the condition, he is 
 to be considered to have waived or abandoned the ord^r, 
 as far as the same is beneficial to himself, and any other 
 party or person interested in the matter, on the breach or 
 non-performance of the condition, may either take such 
 proceedings as the order in such case may warrant, or 
 such proceedings as might have been taken if the order 
 had not been made. (3rd June, 1853 ; Ord. 34, s. 4.) 
 (Eng. Con. Ord. 23, r. 22.) 
 
 Xy II.— CHAMBERS. 
 
 197. The following business shall be disposed of in 
 Chambers, together with such other matters as the Court 
 from time to time thinks may be more conveniently d,is- 
 posed of there, than in full Court, viz. : — 
 
 1. For the sale of the estates of infants, under the 
 
 Consolidated Statutes of Upper Canada, chap- 
 ter 12, s. 50 ; 
 
 2. As to the guardianship, maintenance, and ad- 
 
 vancement of infants ; 
 

OHDER 197. 215 
 
 3. For the administration of estates upon motion, 
 
 without bill ; 
 
 4. For time to answer or demur ; 
 
 5. For leave to amend bills ; 
 
 V 
 
 6. For changing»the venue ; 
 
 7. To postpone the examination of witnesses, or to 
 
 allow the production of further evidence ; 
 
 8. For the production of documents; 
 
 9. Relating to the conduct of suits or matters ; 
 
 10. As to matters connected with the management 
 
 of property; 
 
 11. For the payment into Court of moneys, by par- 
 
 ties desiring on their own behalf to pay in the 
 same. (3rd June, 1853; Ord. 34, s. 1.) 
 
 In the absence of the Judge, the Judges' Secretary is to sit in Cham- 
 bers, and hear any applications which the parties may choose to bring 
 before him for this purpose, Ord. 17. / 
 
 Whatever application can under these orders be made in Ohalnbers, 
 must be so made, Moffatl v. Ruddle, 4 Grant, 44. 
 
 The Court refused to hear, otherwise than in Chambers, a motion to 
 extend the time for payment of mortgage money, Anon, 4 Grant, 61. 
 
 A commission de lunatico inquirendo will be granted in Chambers, lie 
 Stuart, 4 Grant, 44 ; and so may a writ of habeas corpus, Jie Paton, 4 
 Grant, 147. 
 
 Tor the mode of proceeding under Con. Stat. V. C. c. 12, s. 50, see 
 Ord. 527, et seq. 
 
 The provisions of the statute 22 Vic, c. 9'3, (Con. Stat. U. C. c. 74,) 
 have not the effect of excluding the jurisdiction of the Court of Chancery, 
 in respect to the appointment of guardians to infants. Re Stanard, 1 Cham. 
 R. 15. 
 
 The jurisdiction, where proceedings originate at Chambers, extends 
 only to simple cases. Rump v. Greenhill, 20 Beav. 512. 
 
 On the death of a receiver, an application for another may be made in 
 Chambers, Grote v. Ring, 9 Hare, App. 50 ; and the appointment of u. 
 jeceiver in the first instance, if by consent, may be made in Chambers, 
 Blackborou^h v. Ravenhill, 16 Jur. 1085. 
 
 Order for payment into Court of purchase money may be made in 
 Chambers, Davenport v. Davenport, 22 L. J. Ch, 11 ; and so should 
 a metion to open biddings. 
 
216 OHDEEs 198—201. 
 
 All applications in the nature of an appeal from a Master's judgment 
 should be made in Court and not in Chambers, Ledyafd t>. McLean, 1 
 Cham. E. 183; Fitzgerald v. Upper Canada Building Society, Ibid; Jay 
 V. Macdanell, 2 Cham. E. Yl. 
 
 198. The course of proceeding in Chambers is ordi- 
 narily to be the same as the coiurse of proceeding in 
 Court upon motion. Notice of the application (where 
 the proceeding is not ex parte) is to be served, in the 
 same manner as a notice of motion returnable in open 
 Court. In other cases, an appointment is to be obtained, 
 which may be in a form similar to the form set forth in 
 schedule K hereunder written, with such variation as 
 the circumstances of the case may require. (3rd June, 
 1853; Ord. 34, s. 4.) 
 
 199. Where it appears upon the hearing of any matter, 
 that, by reason of absence, or for any other sufficient 
 cause, the service of notice of the application, or of the 
 appointment, cannot be made, or ought to be dispensed 
 with, such service may be dispensed with, or any sub- 
 stituted service, or notice, by adyertisement, or other- 
 wise, may be ordered. (3rd June, 1853 ; Ord. 34, s. 5.) 
 (Eng. Con. Ord. 35, r. 18.) 
 
 200. Where an account is taken in Chambers, special 
 directions may be given, with respect to the mode in 
 which the account is to be taken and vouched ; and in 
 taking the account, the books of account in which the 
 accounts required to be taken have been kept, or any of 
 them, shall be taken as prima facie evidence of the truth 
 of the matters therein contained, with liberty to the par- 
 ties interested to take such objections thereto as they may 
 be advised. (3rd June, 1853 ; Ord. 35, s. I.) 
 
 Iq this order the word '' shall" is to be read as permisslye. 
 See notes to Order 228. 
 
 201. An accounting party is to bring in his account in 
 the form of debtor and creditor, and verify the same by 
 
OKDERS 202—205. 317 
 
 affidavit, unless otherwise directed. The items on each 
 side of the account are to be numbered cons< uutively, and 
 the account is to be referred to by the affidavit as an 
 exhibit, and not to be annexed thereto, and is to be left 
 at Chambers. (3rd June, 1853 ; Ord. 35, s. 3. (Eng. 
 Con. Ord. 35, r. 33.) 
 
 As to the practice ia Judges' Chambers in England with regard to 
 requiring verified copies of aceounts, see Cannan v. Evans, 10 Ha. App. 9. 
 
 202. A party seeking to charge an accounting party 
 beyond what he has by his account admitted to have re- 
 ceived, is to give notice thereof to the accounting party, 
 stating, as far as he is able, the amount sought to be 
 charged, and the particulars thereof, in a short and suc- 
 cinct manner. (3rd June, 1853 ; Ord. 35, s. 3.) {Eng. 
 Con. Ord. 35, r. 34.) 
 
 An accounting party who files an affidavit verifying his account, if he 
 is cross examined on such aflSdavit, is entitled to notice of the points on 
 which he is to be cross examined, Re Lord 2 L. R. Eq~. 605 ; Wormsley v. 
 Stmt, 22 Beav. 398. 
 
 203. No State of facts, charges, or discharges, are to 
 be brought into Chambers ; and where original deeds or 
 documents can be brought in, no copies are to be made 
 without special direction. (3rd June, 1853 ; Ord. 34, 
 s. 4.) 
 
 204. Where directed, copies, abstracts, or extracts of 
 or from accounts, deeds, or other documents, are to be 
 supplied. (3rd June, 1853 ; Ord. 34, s. 4.) 
 
 205. Where in the prosecution of any proceeding un- 
 der a decree, it appears that some persons, not already 
 parties, ought to be made parties, and ought to attend, or 
 be enabled to attend the proceedings, directions may be 
 given for serving an office-copy of the decree upon such , 
 parties, and upon due service thereof such persons are to 
 
■218 ORDERS 206—210. 
 
 be treated and named as parties to the suit, and shall be 
 bound by the decree in the same manner as if they bad 
 been originally made parties to the suit. .(3rd June, 
 1853; Ord. 34, s. 6.) 
 
 206. Every office-copy of a decree directed to be served 
 under Order 205, is to be indorsed with a notice to the 
 effect set forth in schedule L hereunder written, with such 
 variations as circumstances may require. (3rd June, 
 1853 ; Ord. 34, s. 6.) 
 
 207. A party served with an office-copy of a decree 
 under Order 205 may apply 'to the Court, at any time 
 within fourteen days from the date of such service, to 
 discharge the order, or to add to, set aside, or vary the 
 decree. (3rd June, 1853 ; Ord 34, s. 7.) 
 
 The time of vacation is not to be reckoned in the computation of the 
 fourteen days, Otd. 408. 
 
 208. The Court may adjourn for consideration in 
 Chambers any matter which, in the opinion of the Court 
 may be disposed of more conveniently in Chambers ; and 
 any matter pending in Chambers may be adjourned to 
 open Court ; and such matter may be so adjourned at the 
 request of either party, subject to such order as to costs 
 or otherwise, as the Court thinks right to impose. (3rd 
 June, 1853 ; Ord. 34, s. 3.) 
 
 209. Matters adjourned from Chambers are to be heard 
 in Court by one Judge, unless by special leave, which 
 may be granted ex parte ; and without such leave are 
 not to come before the full Court, except by way of 
 rehearing the order made in Court thereon. (20th Dec. 
 1865 ; Ord. 14.) 
 
 210. A Judge sitting in Chambers may exercise the 
 same power and jurisdiction, in respect of the business 
 brought before him, as is exercised by the Court ; all or- 
 
oRDEiis 211—212. 219 
 
 ders made by a Judge in Chambers are to have the force 
 aud effect of orders of the Court; and all or any of the 
 powers, authorities, and jurisdictions, given to the Mas- 
 ter by any act or acts now in force, or by any General 
 Order or Orders of the Court, may be exercised by the 
 Judge sitting in chambers. (3rd June, 1853; Ord. 34, 
 s. -2.) 
 
 XVIII.— MASTERS' OFFICE. 
 
 211. Every order referring any matter to the Master is 
 to te brought into his office within fourteen days after 
 the order is drawn up, orafterthe same should have been 
 drawn up, by the parly having the carriage of the same ; 
 otherwise any other party to the cause, or any pa,rty 
 having an interest in the reference, may assurrie the car- 
 riage of the order, and carry the same into the Master's 
 office. (3rd June, 1853 ; Ord. 42, s. l.) 
 
 Under Ord. 42, s. 1, of 3rd June, 1853, the party having the carriage 
 of the decree was required to cany it into the Master's offioe within four- 
 teen days after the decree was pronounced, otherwise any other party 
 might apply to the Court for the carriage of the reference. The time for 
 carrying in a decree has been extended, as it i3 sometimes impossible to 
 have the decree in a cause heard on circuit, drawn up and entered within 
 fourteen days. The latter part of the order which enables any party to 
 the cause, or any party interested in the reference, to assume the carriage 
 of the decree without applying to the Court, where the plaintiff is delay- 
 ing, TyiU it is hoped lead to greater promptness in carrying in decrees. 
 
 Where a depree has been carried into the Master's office, Order 213 
 provides, that, if the party prosecuting the decree does not proceed with 
 due diligence, the Master may give .tli'e conduct of the' reference to any 
 o.t,her person interested. 
 
 212. Where a party prosecuting a reference, does not 
 proceed before the Master with due diligence, the Master 
 ■ is at liberty, upon the application of any other party in- 
 terested, either as a party to the suit, or as one who has 
 come in and established his claim before the Master 
 ujider the order, to commit to him the prosecution of the 
 
220 . ORDERS 213—214. 
 
 order; and from thenceforth neither the party making 
 default nor his solicitor is to be at liberty to attend the 
 Master as the prosecutor of the order. (3rd June, 1853 - 
 Ord. 42, s. 10.) 
 
 This Order is a copy of English Order 56, of April, 1828. 
 
 Previous to that order, the practice of the Court was, especially in 
 creditor's suits, in case the party whose duty it was to prosecute a decree 
 neglected his duty, to allow a party interested as a creditor to obtain an 
 order to prosecute in his stead, Creuze v. Hunter, 2 Ves. 157 ; Sims v. 
 Ridge, 3 Mer. 458 ; Powell v. Walworth, 2 Mad. 183 ; Edmunds v. Adand , 
 5 Mad. 31 ; Cooh v. Bolton, 5 Rass. 282 ; and the Court may still exercise 
 its authority by taking the prosecution of a decree from the plaintiff and 
 entrusting it to another, and that even after the Master has exercised his 
 judgment upon it, and has refused the application, Wyatt v. Sadler, 5 
 Sim. 450. 
 
 This Order applies only to proceedings in the Master's office, therefore 
 a plaintiff from whom the Master has taken the conduct of the suit, is 
 not thereby precluded from afterwards making an application to the 
 Court in the suit, Whitehead v. North, Cr. cSi Ph. 78. 
 
 As to the right of the party substituted under this Order, to inspect and 
 take copies of the briefs, documents, &c., in the possession of the party 
 from whom the carriage of the decree has been taken, see Bennett v. 
 Baxter, 10 Sim. 417. 
 
 It is not irregular for the Master to act under this Order on the ex parte 
 application of the defendant, Stevemon v. Nicol, 14 Grant, 144. 
 
 An application to compel the party having the carriage of an order 
 made on an appeal from a Master's report to proceed with the enquiry in 
 the Master's office, should be made to the Master who has possession of 
 the case, and not in Chambers, Miller v. MacNaughten, 1 Cham R. 206. 
 
 213- Every reference is to be called on and proceeded 
 with at the day and time fixed, unless the Master in his 
 discretion thinks fit to postpone the same ; and in grant- 
 ing an application to postpone the hearing of a reference, 
 the Master may make such order, as to the costs conse- 
 quent upon such postponement, as he thinks just. (3rd 
 June, 1853; Ord. 42, s. 8.; 
 
 214. As soon as the Master has entered upon the hear- 
 ing of a reference, he is to proceed therewith to the con- 
 
ORDERS 215—217. 22 1 
 
 elusion without interruption, where that is practicable ; 
 and where any reference cannot be concluded in a single 
 day, the Master is to proceed de die in diem^ without a 
 fresh warrant, unless he is of opinion that an adjourn- 
 ment other than de die in diem would be proper, and con- 
 ducive to the ends of justice ; and when an adjournment 
 is ordered, the Master is to note in his book the time and 
 reason thereof. (3rd June, 1853 ; Ord. 42, s. 8.) 
 
 215. In no case is any matter to be discontinued or 
 adjourned for the mere purpose of proceeding with any 
 other matter, unless that course becomes necessary. 
 (3rd June, 1853 ; Ord. 42, s. 8.) 
 
 216. Upon the bringing in of an order, the solicitor 
 bringing in the same is to take out a warrant (unless the 
 Master dispenses therewith) appointing a time, which is 
 to be settled by the Master, for the purpose of taking into 
 consideration the matters referred by the order, and is 
 to serve the same upon the parties, or their solicitors, 
 unless the Master dispenses therewith. (3rd June, 1853 ; 
 Ord. 42, s. 3.) 
 
 217. Upon the return of the warrant to consider, or 
 upon the bringing in of the reference where the warrant 
 is dispensed with, the Master is to fix a time at which to 
 proceed to the hearing and determining of the reference, 
 and is to regulate in all other respects the manner of pro- 
 ceeding with the reference, and is to give any special 
 directions, he thinks fit, as to : — 
 
 1. The parties who are to attend on the several ac- 
 
 counts and enquiries ; 
 
 2. The time at which, or within which, each proceed- 
 
 ing is to be taken ; 
 
 3. The mode in which any accounts referred to him 
 
 are to be taken or vouched ; 
 
222 ORDEHS 218—219. 
 
 4. The evidence to be adduced in support thereof ; 
 
 5. The manner in which each of the accounts and 
 
 enquiries is to be prosecuted ; 
 
 And such directions may be afterwards varied or 
 added to, as may be fdund necessary-. (3rd June, 1853 ; 
 Ord. 42, s. 2.) 
 
 This Order does not wholly exclude the jurisdiction of the Court in 
 regulating what parties are to attend before the Master. The Master 
 having exolude'd trustees of a fund from attending before him on a ques- 
 tion of investinerit, the Court gave them' leave to attend, Davis v. Com- 
 bermere, 9 Jur, "76. 
 
 This Order applies as well to a reference upon motion, as to a decree, 
 Woodroffe v. Titterton, 8 Sim. 238. 
 
 218. Where, at any time during the prosecution of a 
 reference, it appears to the Master, with respect to the 
 whole or any portion of the proceedings, that the interests 
 of the parties can be classified, he may require the par- 
 ties constituting each or any class, to be represented by 
 the same solicitor ; and where the parties, constituting 
 such class, cannot agree upon the solicitor to represent 
 them, the Master may norninate such solicitor for the 
 purpose of the proceedings before him ; and where any 
 one of the parties, conktituting such class, insists on 
 being represented by a different solicitor, such party is 
 personally to pay the costs of his own solicitor, of, and 
 relating to, the proceedings before the Master, with 
 respect to which such nomination has been made, and 
 all such further costs as are occasioned to any of the 
 parties by his being represented by a different solicitor 
 from the solicitor so nominated. (20th Dec. 1865 ; 
 Ord. 35.) 
 
 219. To enable the Master to exercise all or any of 
 the powers conferred upon him by, or to take the accounts 
 and make the enquiries referred to, in the following 
 
ORDER 220. 223 
 
 Orders, it shall not be necessary that any of the matters 
 therein mentioned, shall have been stated in the plead- 
 ings, or that evidence thereof shall have been given before 
 the' order of reference, or that the order shall contain any 
 specific direction' in respect thereof/ 
 
 Thp Master has no power to relax any of the General Ordei-s of the- 
 Courti Smith v. Webster, 3 M. & C. 244 ;' Lloyd v. Wait, 4 M. & 0. 257 ; 
 Bertolacci v. Johnson, 2 Hare, 632. 
 
 220. Under an order of reference, the Master shall 
 have povi^er : 
 
 1. To take the accounts with rests or otherwise ; 
 
 2. To take account of rents and profits received, or 
 
 which, but for wilful neglect or default, might 
 have been received ; 
 
 3. To set occupation rent 5 
 
 4. To take into account necessary repairs, and last- 
 
 ing improvements, and costs and other expenses 
 properly incurred otherwise, or claimed to be 
 so ; 
 
 5. To make all just allowances; 
 
 6. To report special circumstances ; 
 
 7. And generally, in taking the accounts, to inquire 
 
 adjudge; and report as to all matters relating 
 thereto, as fully as if the same had been 
 specially referred. (3rd June, 1853; Ord. 42, 
 s. 13.) 
 
 This 'Section confers upon the Master much larger poiiTers, in many 
 respects, than- even a Judge in Chambers in England possesses. It has no 
 English original, and is confined to the practice of our own Court Order 
 142 of April, 18i3, ia the foundation upon which it rests, but altered by 
 the removal of certain restriction--. That order provided that the accounts 
 
224 ORDER 220. 
 
 to be taken by the Master, should be taken according to the laws and 
 practice of the Court of Chancery. This limitation in strictness of lan- 
 guage was perhaps, unnecessary, as all accounts mast have been, and 
 must be taken in that manner, but it was not an unmeaning safeguard and 
 was a plain intimation to the Master of his duty, and the mode of pur- 
 suing it. And there was a proviso that claims for improvements should 
 not be entertained unless a case was made upon the pleadings for them. 
 
 Upon all the matters of account mentioned in this section, a case must 
 be made before the Master, such as, under the former practice, required to 
 be made upon the pleadings, to authorize the Courttomakea decree upon 
 them. Reference to the cases which determine liability upon the plead- 
 ings is therefore necessary to ascertain the extent and the limits of the 
 Master's power. It is proposed to note them upon the several matters re- 
 ; ferred to in this section in the order in which they are mentioned. 
 
 I. As TO TAKING Accounts with Rests. 
 
 There is some ambiguity in the meaning of this phrase. Formerly it 
 seems to have been considered as nothing more than ascertaining the 
 amount due at specified times from an accounting party, but not neces- 
 sarily involving the amalgamation of principal with interest, or turning 
 the interest into capital, — in which sense it was little more than an en- 
 quiry to ascertain balances. But the technical meaning it has now 
 acquired may be expressed as a statement of the amount due at specified 
 times, including both principal and interest, and the sum so found due 
 forms the principal upon which interest is to be calculated, — or in other 
 words it charges the accounting party with compound interest, Raphael 
 ■V. Boehm, H Ves. 92 ; Bennett's Practice in the Master's Office, 136. 
 
 Rests most frequently occur in accounts against (1) executors and trus- 
 tees, and (2) in accounts against mortgagees. 
 
 (1) In accounts against executors and trustees. 
 
 The following rules appear to be the result of the cases, but it is impos- 
 sible to state any rules which will reconcile all the cases, and be consist- 
 ent with themselves, (a) Executors and trustees retaining balances in 
 their hands, in neglect merely of the duty imposed by law, will be charged 
 with simple interest only ; — (6) But if the instrument creating the trusts 
 direct an accumulation of the funds, the neglect to invest will be con- 
 sidered as a positive breach of trust, and rests ordered ; — (c) If the trustee 
 have employed the funds in trade or for his own benefit, whether there be 
 a direction for accumulation, or not, the cestui que trust has the option of 
 taking the profits of the employment of the fund, or of charging him with 
 interest and rests. In this class of cases great doubt still exists whether 
 rests will be directed as a, matter of course, or whether it does not re- 
 quire a special case of misconduct to charge more than simple interest 
 but the better opinion seems to be that where an account of profits migh' 
 be had, rests will be directed, and lastly (d) in cases of fraud rests will be 
 made. 
 
ORDER 220. 225 
 
 The Court in England is further in the habit of modifying the charge 
 ■against the accounting party, according to the various degrees ot culpa- 
 ■bility, by charging different rates of interests. In simple cases of neglect 
 4 per cent, is the usual rate, while if the neglect amount to a breach of 
 trust, or be accompanied with misconduct, 5 per cent, is imposed. In this 
 Province no such practice prevails, and when interest is calculated it is 
 the usual legal rate — 6 per cent. — whether the account be taken with rests 
 or not. These different rates in England require to be continually borne 
 in mind when reading the cases on the subject, as will be observed by the 
 frequent referrnce to them in the cases cited below. 
 
 (o) In cases of neglect merely of a legal duty, simple interest is charged. 
 
 If an executor keeps money in his hands without any necessity from the 
 circumstances of the estate or fund, he will be charged with interest, but 
 usually, in England, only at 4 per cent, unless it appears that more might 
 have been made of it, and then he will be charged with what might have 
 been made. Forbes v. Ross, 2 Cox. 116. In that case the trustees were 
 authorized to lay out the fund in lands or on personal securities at such , 
 rate of interest as they should deem reasonable. They exercised this 
 authority by lending to one of themselves, the security, was ample, and the 
 borrowing trustee used the money by lending at 5 per cent, but claimed 
 that from losses in loans he did not realize more than 4 per cent., but the 
 trustees admitted that five per cent, might have been made by investing iu 
 government securities or on mortgages, and Lord Thurlow charged them 
 5 per cent. 
 
 In Rocke v. Hart, 11 Ves. 58 ; where it only appeared that the executor 
 had not brough't the money into Court, as he ought to have done, but it 
 was not shewn that he had derived any benefit from it. Sir W. Grant 
 charged him with simple interest at 4 per cent. 
 
 The rule is stated iu the same way by Lord Eldon in Mosley v. Ward, 
 H Ves. 581. " The Court does not usually give more than four per cent, 
 where the money has been called in for the purposes of the will and the 
 balance only has been in his hands." 
 
 Sir Thomas Plumer, V. C'iu Tebbs v. Carpenter, 1 Mad 290, says " a 
 ■distinction has been taken, as in every moral point of view there ought 
 to be, between negligence and corruption in executors. A special case is 
 necessary to induce the Court to charge executors with more than four 
 per cent, upon the balance in their hands. If the executor has balances 
 which he ought to have laid out, either in compliance with the express 
 ■directions of the will, or from his general duty, even where the will is 
 silent on the subject, yet if there be nothing more proved in either case, 
 the omission to lay out amounts only to a case of negligence, and not of 
 misfeasance." This statement of the rule as it respects non-compliance 
 with the express directions of the will, has not been approved by later 
 judges, but as to the effect of non-compliance with the general duty »{ 
 the executor it is correct. 
 
126 ORDER 220. 
 
 And Sir J. Eomilly, M. E., in Jones v. Foxall, 15 Bear. 392, states the- 
 general rule thus; "If an executor has retained balances in his hands 
 which he ought to have invested, the Court ■will charge him with simple 
 interest at 4 per cent, on the balances ; if in addition to such retention he 
 has committed a direct breach of trust, or if the fund has been taken by 
 him from a proper state of investment in which it was producing five 
 per cent, he will be charged with interest after the rate of 5 per cent. 
 
 (6) If the instrument creating the trust direct an accumulation or invest. 
 
 ment or application of the fund, the neglect to comply with it will be 
 
 considered a positive breach of trust and rests ordered. 
 
 In Raphael v. Boehm, 11 Ves. 92, a testator gave to hia executors a 
 legacy to be in full for their trouble in performing the duties of his will, 
 and directed that they were not to derive any advantage from Iceeping 
 money in their hands, and that the surplus of his estate should be accu- 
 mulated for the benefit of legatees. At his death more than £39,000 came 
 to the hands of the executors, which for 13 years they retained. Lord 
 Loughborough charged them 5 per cent, from the time of receiving the 
 moneys, commencing at the death of the testator, and half-yearly rests- 
 The Master in taking the accounts under this decree, computed interest 
 upon each receipt from the day it was received, the balance of receipts, 
 with interest so calculated, and payments being struck at the end of each 
 half-year ; and that balance so composed of principal and interest being 
 carried forward as an item in the account, producing interest. Lord 
 Eldon thought the decree unusually severe, but under the facts of the case 
 would not refuse to give it effect. He says, (p. 107) " Where there is an 
 express trust to make improvement of the money, if he will not honestly 
 endeavour to improve it, there is nothing wrong in considering him, as 
 the principal, to have lent money to himself upon the same terms, upoa 
 which he could have lent it to others, and as often as he ought to have 
 lent it, if it be principal ; and as often as he ought to have received it, 
 and lent it to others, if the demand be interest, and interest upon interest. 
 The Court would shamefully desert its ^uty to infants by adopting a rule, 
 that an executor might keep money in his hands without being account- 
 able as if he had accumulated." 
 
 In Knott V. Cottee, 16 Beav. 77, the executor was directed to invest in 
 British stock or upon real security, and accumulate the surplus after main- 
 taining infants. He invested in foreign funds, — and was charged 4 per 
 cent, with annual rests. The M. R. saying, (p. 79) " The case must either 
 be treated as if these investments had not been made, or had been made 
 for his own benefit out of his own moneys, and that he had at the same 
 time retained moneys of the testator in his hands. The usual course is to 
 charge an executor with 4 per cent where he has simply retained balances ■ 
 but where he has acted improperly or has employed the trust money in 
 trade for his own benefit, or has been guilty of other acts of misconduct 
 the Court visits him with interest at 6 per cent. In this, case there does- 
 
ORDER 220. 227 
 
 not appear to me to have been any such misconduct as to make him an- 
 swerable at 5 per cent. It appears simply a case in which an executor 
 
 has retained moneys which he has not properly iuTested." 
 «» 
 In Jams v. Foxall, 1 5,Beav. 388, there was a trust to call in a sum of 
 money and invest in government or real securities. The trustee permit- 
 ted the fund to remain in the hands of a trading firm, of which he was a 
 member, for 16 years, and he was charged 5 per cent, with annual rents. 
 Here was not only a positive breach of trust in neglecting to comply with 
 the directions of the will, but also the employment of the funds for his 
 own benefit. 
 
 In Townend v. Townend, 1 Giff. 201, the same principle was acted on 
 by V. 0. Stuart, and he gave compound interest at 6 per cent., on an in 
 fant's legacy which the executors had not invested properly pursuant to 
 the directions of the will. See also Wilson v. Peake, 3 Jur. N. S. 155. 
 
 Considerable discussion has taken place as to the propriety of the rule 
 by which these varying rates of interest are charged. The additional 
 rates are sometimes said to be imposed by way of penalty, irrespective of 
 the fact whether they have been received or not, — to this it has been re- 
 plied, why not impose an additional sum of principa,l which has not been 
 received as well as interest which has not been received. And it is said 
 that the Court ought to charge the executor only with the interest which 
 he has received, or which it is justly entitled to say he ought to have 
 received, or which it is so fairly to be presumed that he did receive that 
 he is estopped from saying that he did not receive it; and acting upon 
 such reasoning, Lord Cranworth, in Attorney-General v. Alford, 4 D. M. 
 & G. 843, charged an executor with 4 per cent, simple interest only 
 although he had neglected to apply the fund as directed by the will. It 
 appearing that the executor had not in fact derived a benefit from the 
 money, although grossly neglecting his duty. But this case cannot be 
 considered as laying down a general rule of that kind, for although the 
 decree of the Vice-Chancellor was varied by the Chancellor from 5 per 
 cent, with annual rests to 4 per cent, simple interest, yet the defendant 
 was ordered to pay the costs, although not so charged by the decree, nor 
 was the decree appealed from on that ground. And in the Mayor, &e., 
 of Berwick v. Murray, 7 D. M. & G. 519, the same Chancellor disclaims 
 having intended to declare in Attorney- General v. Alford, that defaulting 
 trustees should in no case be charged more than 4 per cent., and there 
 charged the defendant 5 per cent. 
 
 (e) If the trustee has employed the trust funds in trade, or for his own 
 benefit, whether there be a direction for accumulation, or investment, or 
 not, the cestui que trust has the option of talcing interest and rests, or 
 the profits of the employment of the fund. 
 
 Where a trustee employs trust funds in trade, he renders himself liable 
 to be charged with ordinary trade intereit. It will be presumed that hia 
 
228 ORDER 220. 
 
 accounts have been taken in the ordinary way in wliich commercial 
 accounts are taken, tIz., 5 per cent, interest, made up annually, and there- 
 fore with rests, Penny v. Avison, 3 Jur. N. S. 62. 
 
 In Williams v. Powell, 15 Beav. 461, the executor had engaged in trade 
 and mixed the trust fund with his own money at his bankers, and he was 
 charged 5 per cent, compound interest. And in Heighington v. Grant, 1 
 Ph. 600, n. where the executor had employed the trust money in his 
 business as banker and shopkeeper, he was made to account with 5 per 
 cent, compound interest. 
 
 Many decrees hare no doubt been made formerly under such circum- 
 stances charging only simple interest, but the cases above cited, it is 
 believed, indicate the practice of the Court at present. Thus in HeathcoU 
 V. Hulme, 1 J, iSi W. 122, simple interest only, seems to have been charged. 
 In Walker u. Woodward, 1 Russ. lOY, compound interest at 5 per cent, 
 was given, but the order there is said to have been obtained by surprise, 
 per Mr. Sugden in Jttorney- Cfeneral v. Solley, 2 Sim. 518, and in the last 
 cited case simple interest only was given. 
 
 But besides the right of the cestui que trust to interest with rests in 
 these cases, he has also the option of taking the profits realized from the 
 employment of the flind, instead of interest, and this is an option he may 
 properly enough insist upon before the Master, under an ordinary decree, 
 and the very ^tensive language of this order. If he be entitled to rests, 
 he would seem entitled to take the substitute for them. 
 
 Docker v. Somes, 2 M. & K. 655, is the leading case upon this subject, 
 and the judgment of Lord Brougham contains an admirable exposition of 
 the principles on which it rests. The right may arise either upon the 
 ground of ownership, or of breach of trust ; it is placed on this latter 
 ground chiefly by Lord Brougham, " When a trustee or executor has used 
 the fund committed to his care in stock speculations, though the loss if 
 any must fall upon himself, yet for every farthing of profit he may make, 
 he shall be accountable to the trust estate. So it is also, where one not 
 expressly a trustee, has bought or traficked with another's money, the law 
 raises a trust by implication, clothing him though a stranger, with the 
 fiduciary character, for the purpose of making him accountable." And, 
 were it not for the inconvenience attending the working of such a decree, 
 it would seem the most reasonable way of taking the account. Fixing a 
 specific rate of interest, in lieu of profits, is obviously only guess work ; 
 all estates, in that way, must benefit equally, though the profit and the 
 risk may be infinitely varied. 
 
 In Palmer v. Mitchell, 2 M. (St K. 672, Sir W. Grant decreed an ac- 
 ■count of profits arising from the employment of the funds in trade, and in 
 McDonald v. Richardson, 1 Gifif. 81, a like decree was made. V. C. Stuart, 
 stating the rule to be, that where an executor employs assets in carrying 
 on a trade without authority, he is bound to account for, and pay over 
 
ORDER 220. 22 9 
 
 all the profits, or he may be charged with interest at the option of those 
 benefioially entitled. 
 
 In the simple case of an employment of trust funds in a separate and 
 distinct trade or adventure, there cannot be much difficulty in ascertain- 
 ing the profits, but when the executor or trustee employs them in his own 
 business, mixing them with his own money, or in a partnership of which 
 he is a member, the question becomes much more complicated. 
 
 There is no general rule, by which the proportion of the profits, that 
 the owners of the fund are entitled to, can be ascertained ; each case must 
 depend upon its own circumstances. 
 
 In Crawshay v. Collins, 15 Tes. 218; 1 J. & W. 267; 2 Russ. 325, a 
 partnership had been dissolved by the bankruptcy of one partner, who 
 was entitled to 3-8ths of the capital and profits of the business, and his 
 assignees were held to be entitled to a like share of the profits of the con- 
 tinuation of the business aftei; the bankruptcy, and of the money to be 
 produced by the sale of what remained in specie of the capital and stock, 
 and it was also held, in that case, that the assignees' share of the profits 
 was not to be lessened, in respect of a debt which bankrupt owed to the 
 partnership. But Lord Eldon (2 Russ. 344) guards himself from laying 
 down a rule to apply to all cases. He says, " After 'a very anxious con- 
 sideration of this subject, I believe that it will be found, that the rule 
 which is to be applied must be deduced in almost every case, from the 
 particular circumstances of that very case." 
 
 Another leading case upon this subject is Willett v. Bli^ford, 1 Hare, 
 253 ; Willett &-BIanford carried on the business of picture frame makers, 
 Willett being entitled to T-lOths of the profits and Blanford to 3-lOths. 
 They afterwards carried on another business in which they shared the 
 profits equally. Willett died and appointed Blanford one of his executors,, 
 who carried on the business without withdrawing from the concern the 
 share of Willett. On a bill filed by legatees of Willett, seeking to make 
 Blanford account for the profits in the same proportion as they had been 
 divisible during the life of the two paTtners, V. 0. Wigram says, " I de- 
 cided, at the conclusion of the argument, that the surviving partner, one 
 of the executors of the testator, having carried on the partnership trades 
 without withdrawing therefrom the testator's property, was liable in 
 equity to account to his estate for some portion of the profits made in 
 each of these trades since the testator's death. It was strongly urged 
 upon me that I ought at once to declare that the testator's estate was en- 
 titled to T-lOths of the profits made since his death, in the trade of pic- 
 ture-frame maker, and to a moiety of the profits of the other trade. I am 
 of opinion that there is no rule of this Court applicable alike to all cases, 
 and that there is no rule, which is so established or general in its appli- 
 cation, that it is to be taken to be the general rule until circumstances 
 are shown which displace it. The facts of each case must Tae fully 
 brought under the view of the Court before it can be in a position to 
 
230 ORDER 220. 
 
 state what justice to the party seeking its protection may require, with 
 ■due regard to the interests of other parties. The circumstances of some 
 cases would almost exclude the possibility of mailing a decree iu any 
 other form than that which the plaintiffs claim iu this case. Take for 
 example the case suggested by Lord Eldon, in Orawshay v. Collins, of the 
 mere conversion into money at a large profit, long after the testator's 
 ' death, of the very property which belonged to the partn ership at his 
 death, and np other circumstance to embarrass the question. Again, the 
 dissolution of a partnership) priina facie prevents new contracts being 
 made on the joint account of the partners, but it necessarily leaves the 
 old contracts of the partnership to be wound up. In the absence of cir- 
 cumstances to alter the case, it would be impossible to deny the right of 
 the estate of a deceased partner to participate iu the profits arising from 
 winding up the old concerns ; and if, in such a case, the surviving part- 
 ners should have so mixed up new dealings with the old, that the two 
 could not be separated, the right of the estate of the deceased partner to 
 share in the profits of the new dealings might unavoidably attach. Again 
 the whole or the substantial part, of a trade may consist in good will 
 leading to renewals of contracts with old connexions. In such a case, it 
 is the identical source of profit which operates both before and after dis- 
 soluution ; and this appears to me to be the ground-work of Lord Eldon's 
 reasoning in Gook v. GoUingridge. Circumstances may be suggested of a 
 very different kind. Take the case of a busiaess in which profit is made 
 by the personal activity and attention with which the use of the money 
 -capital is directed, and the case may require a different determination. 
 ■Or there may be the case of two persons being partners together in equal 
 shares ; one finding capital alone, and the other finding skill alone, and 
 suppose the latter, before his skill had established a connexion or good 
 ■will for the concern, should die, and the survivor, by the assistance of 
 other agents, should carry on the concern upon the partnership premises, 
 it could scarcely be contended after a lapse of years, that the estate of 
 the deceased partner was entitled as of course to a moiety of the profits 
 made during that lapse of time after his death ; and if his estate would 
 not be so entitled where the deceased partner had left no capital, it would 
 be difficult to establish a right to a moiety, only because he had some 
 small share of the capital and stock in trade engaged in the business at 
 his death, without reference to its amount and the circumstances of the 
 case." V. C. Wigram considered himself "bound by authority and rea- 
 son to hold that the nature of the trade, the manner of carrying it on, 
 the capital employed, the state of the account between the partnership 
 and the deceased partner, at the time of his death, and the conduct of 
 parties after his death, may materially affect the rights of the parties." 
 
 In Simpson v. Chapman, i D. M. & G. 154, a testator was a member 
 of a partnership at will in a bank, without any provision entitling the 
 executor of a deceased partner to an interest in the good will of the con- 
 
ORDER 220. 231 
 
 •cern. The credit in which the bank was, rendered capital unnecessary 
 and at the testator's death the property of the concern exceeded its lia- 
 bilities by a very small amount, the testator's share in which was far 
 exceeded by the balance due from him to the bank on his private account 
 as a customer. After his death the surviTing partners admitted into the 
 firm his son, who was his executor, but who was not admitted into the 
 firm in that character, and the business continued to be carried on with- 
 out any separatjpn or appropriation of the partnership assets as they ex- 
 isted at the testator's death. In a suit against the executor, for the 
 administration of the testator's estate, it was held that he was not ac- 
 countable for the profits which he had receiyed as a partner in the 
 bank. 
 
 Lord Justice Turner expressed his entire concurrence in the opinion 
 expressed by V. 0. Wigram in Willett v. Blanford. 
 
 Wedderburn v. Wedderburn. 22 Bear. 84, is one of the most receiit 
 cases in which this subject has been discussed, — Sir J. Romilly, M.. R., 
 acted upon the principles enunciated in Willett v. Blanford, and Simp- 
 son V. Chapman, and finding that, at the testator's death, the surplus was 
 merely nominal, that the business to wind up was insolvent, and that the 
 subsequent profits were attributable to good will, (which by agreement 
 belonged to the survivors,) and the personal exertions and capital of the 
 surviving partners, refused to give the representatives of the deceased a 
 participation in the profits, as far as those profits were attributable to the 
 good will and connexion in trade of the old firm, and that their share in 
 that portion of the profits in which they would be entitled to participate 
 could not be estimated higher than the interest which had been paid. , 
 
 Where an infant eealui que trust is interested, an enquiry will be made 
 whether it is for his advantage to take interest or profits, Burden v. Bur- 
 den, cited in Heathcote v. Hulme, 1 J. & W. 122. And this enquiry would 
 seem to be within the province of the Master under an ordinary decree. 
 
 (d) In casei of fraud rests will be made. 
 
 Only one case need be referred to, if so much be necessary, to show 
 that a person, who has fraudulently retained money in his hands, must 
 account for it with compound interest. 
 
 SiacpooU V. Stacpoole, 4 Dow, 209, administration was taken out in 
 1771, distribution to a 'certain extent made, but a large sum retained on 
 unfounded pretences. No effectual suit against the administrator til^ 
 1792, and that protracted, in a, great measure, by the administrator's 
 fault, in the Court below till 1810. It was held by the House of Lords 
 reversing, in that respect, decrees of the Irish Chancery, that, notwith- 
 standing the lapse of twenty years before effectual suit for account com- 
 menced, the administrator oug-ht to be charged with the full legal interest 
 on the sum remaining undistributed, during the whole period of reten- 
 tion ; and that the account should be taken with annual rests, and the 
 interest be charged on the annual balances. 
 
232 OBDER 220. 
 
 (2). As to rests in accounts against mortgagees in possession. 
 
 Iq this case where the receipts of the mortgagee are more than suffi- 
 cient to cover the interest, the annual surplus will be considered as ap- 
 plicable, in reduction of the principal money, which is called taking the 
 account with rests, Fisher on Mortgages, 894 ; applying the surplus in 
 reduction of the principal bearing interest, is obviously equivalent to 
 calculating interest on the surplus. 
 
 Accounts cannot be taken in this manner, in England,%rithout an ex- 
 press direction in thb decree, and a decree to t^at eflfect can only be 
 made upon allegations in the pleadings, Webber v. Hunt, I Madd. 13; 
 Neeson v. GlarTcson, 4 Hare, 97. The section of the order now under con- 
 sideration, however, authorizes the Master to make the restsjwithout a 
 direction in the decree and without a case being made upon the plead- 
 ings to justify them. 
 
 The principle upon which rests are made against mortgagees, is that 
 he is not bound to receive payment of his debt in dribblets, but he has 
 the rig-ht to do so if he thinks fit. If he enters into possession when no 
 arrear of interest is due, he evidences his intention so to receive payment 
 of the debt, and the account therefore goes with rests; but if the interest 
 is in arrear when he enters into possession, the fact of his taking posses- ' 
 sion affords no evidence of his intention to receive payment by dribblets, 
 as he is driven to take the possession by the nonpayment of the interest, 
 and the account therefore goes on till the whole debt has been satisfied . 
 Per Lord Justice Turner in Nelson v. Booth, 3 D. & J. 119. 
 
 If the interest be in arrear when possession is taken, rests are not 
 ma5e, Davis v. May, 19 Tes. 884; Coop. 238; Wilson v. Oluer, 3 Bear. 
 136; Goldvoell v. Hall, 9 Grant, 110; and if^not liable to account with. 
 rests when the possession is taken, the mortgagee does not become so 
 liable until the whole of the mortgage debt has been paid off, Wilson v- 
 Cluer ; Davis v. May, supra. He does not become so liable merely by • 
 the interest and arrears being paid, Finch v. Brown, 3 Beav. TO ; Latter 
 17. Dashwood, 6 Sim. 462. 
 
 Where the mortgagor had, before the mortgagees entered into posses- 
 sion, indorsed to them bills of exchange for the arrears of interest ; the 
 bills fell due after the possession was taken and were dishonored, and it 
 was held tha't the interest was in arrear when possession was taken, so 
 as to preclude the mortgagor from claiming to have the accounts taken 
 with rests, Dobson v. Land, 4 DeG. & S. 515. 
 
 If the mortgagee in the exercise of his legal right choose to go into 
 possession, when there is no interest in arrear, he must account with rests, 
 Robinson v. Gumming, 2 Atk. 410 ; Nelson v. Booth, supra, unless he have 
 been driven, by the acts of others, to take possession, and his own conduct 
 has been free from harshness or oppression, Horlock t). Smith, 1 Coll. 287.. 
 When a mortgagor stated an account with the mortgagee in possession,. 
 
ORDER 220. 233 
 
 by which it appeared either that no interest was due, or than any which 
 was due was satisfied as interest, by being converted into principal, and 
 the mortgagee continued in the receipt of rents of amount more than suf- 
 ficient to satisfy the interest of such principal ; the settlement was con- 
 tinued as a rest made by the parties themselves, and that the mortgagee 
 retaining the possession with no interest due to him, was to be dealt with 
 as a mortgagee who takes possession without interest being in arrear, 
 WiUon V. Oluer, S Bear. 136. 
 
 Rests will also be made where the title of the mortgagor is denied. For 
 when a creditor denies his character as such, and claims as owner, he will 
 not be allowed to fall back on his original character of creditor, as if he 
 had never departed from it, Incorporated Society/, Sfo., v. Richards, 1 Dr ■ 
 & W. 258, 33i. In Aitehison v. Ooombes, 6 Grant, 643, where the de- 
 fendant claimed to be a purchaser for value without notice, which was 
 disproved, the decree, unnecessarily perhaps, directed the account to be 
 taken with rests ; this point is not noticed in the report. In like manner 
 in Montgomery v. Oalland, 14 Sim. '79, the plaintiff sought to redeem 
 against a mortgagee in possession, who by his answer set up an un- 
 founded claim to the equity of redemption, and denied that the mortgage 
 had been satisfied, although a balance was due from him when he fyled 
 his answer, the mortgagee was ordered to pay interest on the balances in 
 Ms hands since" the time when the mortgage was satisfied, besides por- 
 tions of the costs. 
 
 Although the mortgagee when he took possession may not have been 
 liable to rests, y.et when, by the receipt of rents or otherwise, the whole 
 debt became satisfied, rests will be made from that time, Wilson v. Met- 
 calfe, 1 Euss. 530 ; Lloyd v. Jones, 12 Sim. 490 ; in this last case the 
 mortgagee was paid by tire receipt of rents find profits pending the pro- 
 ceedings in the Master's ofBce under a decree to redeem. 
 
 "When the mortgagee is himself in the occupation of the premises, and 
 is charged with an occupation rent more than sufficient to pay the in- 
 terest, he will be charged with rests, if possession were taken when no 
 interest in arrear, or if he is paid off by means of the occupatioQ rent, 
 Wilson V. Metcalfe, 1 Euss. 530 ; Binnington v Harwood, T. & R. 477. If 
 a mortgagee, receiving the rents of the mortgaged estate, after his debt 
 has been salasfied, does not immediately pay them over to the mortgagor, 
 but retains them to his own use, he is availing himself of another man's 
 money and ought to be charged with interest. Is his situation substan- 
 tially different when he is in the actual occupation of the mortgaged pre- 
 mises ? Though he is not in receipt of rent, he is in fact in receipt of 
 profits; and these he keeps in his pocket. Per Lord Gifford, M. R. 1 
 Euss. 535. 
 
 There seems to be some doubt as to the proper mode of making the 
 rests when sums have been received between th'e dates of the rests. In 
 Binnington v. Ilarwood, supra, sums so received were applied, when they 
 
234 ORDER 220. 
 
 exceeded the interest, to sink the principal. Mr. Fisher in his ■worli on 
 mortgages, appears to think that this depended on the usury laws, and 
 that since their repeal the rests would not be so made unless for special 
 reasons. Sir Thomas Plumer does not place the decision upon that 
 ground, and it -would appear to be only in conformity with plain justice- 
 that the rests should be made whenever the receipts exceeded the interest, 
 But whatever may be the technical mode of working a decree ordering 
 annual rests, it is apprehended that the Master under this order is fettered 
 by no such difficulty, and that the true mode of taking the accjunt is to 
 treat the time of every payment, which exceeds the interest, as the period 
 for making the rest. 
 
 II. The next authority in oeder by this bectiom conkerrbd dpok 
 
 THE master is "TO TAKff AOOOUNT OP RENTS AND PROFITS BKOEIVED, OE 
 WHICH, BUT FOR WILFUL NEGLECT OR DEFAULT, MISHT HAVE BEEN ES- 
 CEIVED." 
 
 It is obvious that this authority is in terms confined to accounts against 
 persons in the possession or occupation of real estate. 
 
 The cases which most frequently occur for considering the subject of 
 liability for wilful default, are those of mortgagees, trustees, snd wrong 
 doers. 
 
 In the case of a mortgagee in possession, it is a matter of course to 
 charge him, with rents and profits received, or which but for his wilful de- 
 fault mighthave been received. A mortgagee when he enters, enters under 
 a condition, imposed on him by the Court, of exercising the utmost dili- 
 gence for himself and the mortgagor, Sherwia v. Shakespear, 5 D. M. & 
 G. 531, 536. A mortgagee, when he enters into possession of the mort- 
 gaged estate, enters for the purpose of recoverSdg both his principal and 
 interest, and the estate being in the eye of the Court a security only for 
 the money, the Court requires him to be diligent in realizing the amount 
 which is due, in order that he may restore the estate to the mortgagor, 
 who in the view of the Court is entitled to it ; it is part of his contract 
 that he should do so, per L. J. Turner, in Kensington v. Bouverie, 7 D.M. 
 & G. 157. 
 
 The acts which amount to wilful default, to charge a mortgagee, must 
 be either fraudulent, or grossly negligent. Actual fraud is not necessary. 
 It is sufficient, if there i9 plain, obvious, and gross negligence, by, not 
 making use of facts within his knowledge ; so as to give the mortgagor 
 the full benefit, that the mortgagee in possession of the estate of the 
 mortgagor ought to give him. If, for instance, the mortgagee turns out 
 a sufficient tenant, and, having notice that the estate was underlet, takes 
 a new tenant ; another person offering more ; an offer, however, not to 
 be rashly accepted. Per Lord Erskine, in jSughei v. Williams, 12 Ves . 
 493. 
 
 The true doctrine of the Court is, that a mortgagee in possession of the 
 mortgagor's property, is bound to use it as carefully as if it was his own 
 
ORDER 220. 235 
 
 Per V. C. Stuart, in Cocks v. Gray, 1 GiflF. 77. But he is not required to 
 •do more, and tlierefore in the last case, where the defendant was mort- 
 gagee in possession of a livery stable, which he rented to a tenant from 
 year to year, and the rent being in arrear, he distrained several carriages 
 and horses, belonging to different noblemen and gentlemen, which were 
 standing at livery. But, upon receiving notice from the owners that, un- 
 less they were restored to their owners, proceedings would be taken 
 against him, he gave them up, and it was held that he was not chargea- 
 ble for wilful default, in declining to defend an action of replevin. That 
 the mortgagee was not bound to distrain, and that having distrained the 
 property of third persons upon the premises, he acted prudently in de- 
 clining to embark in^he litigation ; that the Courts of law gladly caught 
 at any distinction to escape from the harsh rule of law, which permits 
 landlords to seize the property of other persons found on their premises. 
 This decision apparently rests on the doubtfulness of the right to dis- 
 train horses and carriages standing at livery, and the apprehension that 
 the mortgagee might have had a verdict against him. For if the right 
 were perfectly clear, it is difiScult to understand why the mortgagee 
 should not have accounted for them, yet the right to distrain, in such 
 cases, seems to have been expressly sanctioned in Parsons v. Qingell, 4 
 0. B. 545. 
 
 No account of past rents will be taken against a mortgagor in posses- 
 sion, at the instance of a mortgagee, «« parte Wilson, 2 V. & B' 252 ; and 
 if a first mortgagee be in possession, without, notice from the second mort- 
 gagee, he may pay the rents over to the mortgagor ; and the second mort- 
 gagee, if he is so imprudent as not to give that notice, as he cannot have 
 an account of the by-gone rents from the mortgagor, so he cannot have 
 it from the other mortgagee. Per Lord Eldon, Bsrney v. Sewell, 1 J. & 
 W. 650. 
 
 Trustees, whether express or constructive, are not, like mortgagees in 
 possession, liable to account, as of course, for wilful default, — a special 
 .case of fraud, misconduct, or gross negligence, requires to be established 
 against them. 
 
 " In the case of vendor and purchaser, as by the contract the vendor 
 ■becomes trustee of the estate for the purchaser, if the vendor remain in 
 possession during the interval when the title is in dispute, he will, like 
 other trustees, be liable to account for the rents and profits, and upon a 
 proper case, be charged with wilful default. The vendor may call for 
 interest upon' his purchase money, although the vendor has suffered it to 
 lie dead. Then, to pursue that principle, must not the vendor, the legal 
 owner of the estate, by a parity of reasoning, take care of the purchased 
 estate? He must. If he has received rent, he must account for it; if he 
 has suffered tenants to run in arrear, he is responsible for the loss thereby 
 .occasioned If possession of the estate was given, or any tender of pos- 
 .session was made, or the purchaser exercised acts of ownership, over the 
 
236 ORDERS 220. 
 
 premises, that may make a difference.'' Per V. C. Plumer, Acland v. 
 Gaisford, 2 Madd. 28. 
 
 In Wilson v. Clapham, 1 J, & W. 36, a decree for specific performance 
 had been made with a direction for the vendor to account for rents and 
 profits ; and a motion was made to vary the minutes so as to charge him 
 further with what but for his wilful default he might have received, upon 
 a suggestion that they had been suffered to run in arrear. And Sir 
 Thomas Plumer, then M. R., directed enquiries to ascertain if the vendor 
 had been in default, observing, " The care of the estate must of necessity 
 belong to the vendor," the title being such that it was not safe, before the 
 decree, for the purchaser to take possession, he becomes trustee for the 
 purchaser, and what hardship is there in expectin^him to take the same 
 care of it as he would if it were his. own ? He must take the measures 
 that are adopted by every prudent landlord. If ultimately the estate is 
 determined to continue his own, he retains the rents ; if not, he hands 
 them over to the vendee. 
 
 Where the purchaser refuses to take possession when he might and 
 ought to have done so, he cannot make the vendor answerable for remain- 
 ing in the possession of the premises, DaJcin v. Cope, 2 Russ. 170. 
 
 L. J. Knight Bruce observed, in Sheruiin v. Shakspear, 5 D. M. & G. 
 61Y, 531, " My impression from the course of the Court (as far as I have 
 been acquainted with it) and upon principle, is, that a special case ought 
 to be made for the purpose of inserting those words (charging wilful de- 
 fault) in a decree for specific -performance, where the vendor has been in 
 possession during a time, in which he is to account for the rents/' and L. 
 J. Turner observes in the same case, p. 536, " There is a vast distinction 
 between the position of a vendor and that of a mortgagee who enters into 
 possession of the estate, — in the case of a vendor, the vendor dees not 
 take but remains in the possession of the estate. It may ultimately ap- 
 pear that the estate of which he is in possession may never become the 
 estate of the purchaser at all, and I think that if he continues in the due 
 and ordinary course of management, it is not the course of this Court to 
 charge him, upon the principle of his having been converted into the 
 position of a mortgagor for the purchase money." 
 
 In the case of Martin v. Norman, 2 Hare, 596, on a bill by the vendor 
 for specific performance, the decree charges the plaintiff with the rents 
 received, or which, but for his wilful default, he might have received. 
 The facts are not given at much length, and this point does not seem to 
 have been argued, as the report is confined to a discussion on the effect 
 of a " traversing note," but so far as the report does go, there seems no 
 ground for a decree of this nature, and it cannot be considered as an 
 authority, in opposition to the cases cited above. 
 
 In those cases in which a purchaser for value is evicted by a better 
 title, of which he had notice, he is considered as a trustee for the true 
 
ORDERS 220. 237 
 
 owner, and is not, in the absence of special circumstances, cliargeable for 
 ■wilful default, JHowell v. Howell, 2 M. & 0. 4Y8. 
 
 In that class of cases where deeds or contracts have been obtained by 
 fraud or misrepresentation, and possession taken under them, the same 
 rule applies, although the reason for it may not be apparent. Perhaps it 
 may be on the ground that the person in possession assumed to be owner, 
 but will, in the absence of evidence to the contrary, be considered as 
 dealing with the estate, as a provident owner would. 
 
 Whatever may be the reason, the authorities are numerous, that he can- 
 not be charged in this stringent mode without a special case, Murray v- 
 Palmer, 2 Sch. & L. 474; where a conveyance obtained from a woman 
 in ignorance of her rights, and upon misrepresentation of the circumstances 
 of the property, was set aside ; but Lord Redesdale refused to charge 
 him with what, but for wilful default, he might have made, Masters v, 
 Braban, Seton (2ml Ed.) 307 ; where Braban got into possession and 
 claimed under a forged declaration of trust, yet was only charged with 
 rents and profits received, Trevelyan v. Charter, 4 L. J. N. S. 209 ; 11 01. 
 cfe Fin. 714 ; 9 Beav. 140 ; where a purchase by a solicitor was set aside, 
 the decree only directed him to account for rents received, Seton (2nd Ed.) 
 302 ; Nevilh v. NevilU, 6 Grant, 121 ; a conveyance fraudulently obtained 
 by a son from his father was set aside, but the decree only ordered the 
 son to account for rents received. 
 
 The executor of a person who has obtained and held possession, under 
 an erroneous idea of title, is liable to account to the true owner, for the 
 rents and profits during the testator's possession, Monypenny v. Sriatow, 
 2 E.AM. 117. 
 
 A testamentary guardian, Mathew v. Brise, 14 Beav. 341 ; and a statu- 
 tory guardian, Duke of Beaufort v. Berty, 1 P. Wms. 704, are trustees and 
 must account in the ordinary way, and will not be liable for wilful de- 
 fault except upon a special case. 
 
 As to mere wrongrdoers there are not many cases in which they are 
 liable at all to a suit in Equity, the remedy against them being a. legal 
 one, but when a person enters upon an iafant's estate he is treated in 
 Equity as his bailiff, Jsfewburgh v. Bickerstaffe, \ Vera. 295 ; Bloomfield 
 V. Syre, 8 Beav. 250 ; Sicks v. SallUt, 3D. M. & G. 782 ; and it is ap- 
 prehended that the decree in such a case is only for the ordinary ac- 
 counts. 
 
 But to entitle the infant to an account he must have been in possession 
 by himself, his guardian, or agent, Growther v. Crowther, 23 Beav. 305. 
 
 As to the time for which an account of rents may be had, it is to be 
 noticed, that prior to this order, if the Statute of Limitations were in- 
 tended to be insisted on as a bar to the account, it required to be set up 
 in the pleadings ; but now the whole contest is transferred to the Mas- 
 ter's office. 
 
238 ORDER 220. 
 
 The 22 Vic. c. 88, s. 19; Con. Stat. U. C. p. 873; the same as the Imp 
 Act, 3 & 4 W. 4, c. 27, s. 42 ; enacts that no arrears of rent or of interest 
 in respect of any money charged upon, or payable out of any land or rent,. 
 &c., shall be recovered by any action or suit but within six years next 
 after the same shall have become due, or after an aclsnowledgment of the 
 same in writing shall hare been given to the person entitled thereto, or 
 his agent, signed by the person by whom the same is payable, or his 
 agent. 
 
 The statute, however, does not apply to casej of express trusts, until 
 the lands or rent shall have been conveyed to a purchaser for value, nor 
 in cases of concealed fraud. Con. Stat. XT. G. p. 876, s. 32, 33 ; Imp. Stat, 
 s. 25, 26. 
 
 In case of disability, ten years are allowed next after the cesser of it. 
 Con. Stat. TJ. C.p. 879, a. 45; Imp. Stat. ». 16. 
 
 - These provisions are considerably modified by the Dormant Equities 
 Act, Oon. Slat. U. C. p. 58, s». 59, 60 ; which enact that no title valid at 
 law shall be disturbed or affected in Equity by anything which arose be- 
 fore the 4th of March, 1837, unless in the case of actual and positive 
 fraud in the party whose title is sought to be disturbed, — and ia regard 
 to any other claim which arose before that date, the Court shall malce 
 such decree as may appear just and reasonable if the suit be brought 
 within 20 yesrs from the accrual of the right, and no farther time shall 
 be allowed for disability. This act has been held to apply to cases of 
 express ■ trust, 5fi<!/ve« j;. Wrarfg, 1 Grant, 220; Attorney-General v. G-ra- 
 »ett, 8 Grant, 130 ; but see Tiffany v. Thompson, 9 Grant, 244. 
 
 Where an infant six years after attaining his majority seelis an account 
 against his guardian for arrears of rent, it was at one time held that he 
 was barred by the statute 21 J. 1, c. 16, 3. 3 ; Lockey v. Lockey, Pre. in 
 Chy. 518 ; but in Mathew v. Brise, 14 Beav. 341, it was held otherwise^ 
 and in Hicks v. Sallitt, 3 D. M. <& G. 782, where the claim was made 
 against a purchaser for value with notice, it was held that a suit for such 
 an account was not within the 42nd sec. of the Imp. Act (19 Sec. Prov. 
 Act, supra) and an accou'nt was decreed for the whole period of the 
 wrongful possession, and see Grant v Mlia, 9 M. & W. 113. 
 
 III. The mext subject in this Seotion upon which the MASxEas arb 
 
 AUTHOBIZED TO ADJUDICATE, IS THAT OF SETTlliS AS OOOUPATIOS ReNT. 
 
 This is a sam to be fixed as an equivalent for having occupied lands, 
 &c., in respect of which there is no subsisting agreement, or none binding 
 upon the owner to pay a definite rent, and to which the occupant is not 
 entitled for his -own benefit, Bennett's Prac. 176. To charge a person 
 with an occupation rent he must have been in the occupation of the pro- 
 perty, and as it is equivalent to making him answerable as for wilful de- 
 fault, it is, under the practice in England, requisite to allege the occupa- 
 tion in the bill, and that a direction should be inserted in the decree 
 
ORDER 220. 239^ 
 
 before the Master or Chief Clerk can ao take the account. Mr. Bennett 
 says, " There are few questions more contested where such an one arises 
 before the Court as to the liability to be charged, and the contest is gen- 
 erally transferred to the Master's office as to the quantum of rent to be 
 assessed." By this not Tery lucid sentence, he probably meant that the 
 quantum of rent was usually the subject of great contest io the Master's 
 office ; for the liability to be so charged is not a question of much diffi- 
 culty. The mere fact of occupation is all that is necessary to be proved 
 in order to establish the liability of ^ mortgagee or trustee to be so 
 charged . 
 
 The cases' in which the subject of occupation rent usually arise are 
 those of mortgagees or trustees, but is not confined to these, and it may 
 be said generally that whenever a person is in the occupation of property 
 to the possession of which another is entitled, the occupant may become 
 liable to be charged with an occupation rent. 
 
 A mortgagee is charged with an occupation rent if he has been in 
 the actual occupation of the mortgaged property, but an occupation of a 
 part is not considered as occupation of the whole, and he will only be so 
 charged as to the part he has occupied, and account for the rents and 
 profits received, or which, without wilful default, he might have received, 
 of the remainder, Trulock v. Robey, 15 Sim. 265; York Buildings Co. v. 
 McKmsie, 8 Bro. P. C. 70. 
 
 A doweress is entitled to have an occupation rent charged against the 
 heir In occupation, but only for six years before the filing of the bill, Bam- 
 fordv. Bamford, 5 Hare, 203, 206. 
 
 A vendor in occupation under such circumstances as would have ren- 
 dered him liable to an account of rents, &c., had he been merely in pos- 
 session, will be so charged, but not if the purchaser might and ought to 
 have taken possession, Dakin v. Cope, 2 Russ. 170. 
 
 Express trustees or constructive trustees in occupation of property ac- 
 quired by fraudulent means, will be charged with an occupation rent, 
 Lamont v. Lament, 7 Grant, 258, 269 ; Mill v. Hill, 3 H. L. C. 828 ; JEx 
 parte James, 8 Ves. .fSl. 
 
 Where a person in occupation of property which he had conveyed ab- 
 solutely to one member of the firm, but which he alleged to be only by 
 way of security for a debt due to the firm, and after the institution of a 
 suit between the partners, obtained leases from the partner having the 
 legal estate, an occupation rent was ordered to be fixed, Prentiss v. Bren- 
 nan, 2 Grant, 18. 
 
 In a suit for partition, by one tenant in" common against another, who 
 had occupied the property, and excluded the plaintiff and denied his right, 
 the defendant was charged with an occupation rent for (the plaintiff's 
 share) one-third of the estate, Pascoe v. Swan, 27 Beav. 508. 
 
240 ORDER 220. 
 
 The chief difficulty in such cases is to ascertain what amount should 
 be assessed as the rent, and the evidence adduced requires to be very 
 carefully scrutinized. Architects, surreyors, and house and land agents, 
 it is well known, are very subject to a bias in favour of the person who 
 calls them as witnesses. So much is this the case that it has been said, 
 any value absurdly great, or as absurdly small, can be authenticated by 
 their evidence, though upon oath. Farmers or persons in the neighbour- 
 hood not uufrequently have a leaning to the occupant, and tend to place 
 as small a sum as possible as the value. The safest guide, no doubt, is 
 the rental value, if that can be ascertained, from actual offers, or the tes- 
 timony of disinterested witnesses. In many cases a view by the Master 
 is of importance, although his conclusion cannot rest upon his inspection, 
 yet it enables him to apply the evidence in a more satisfactory manner 
 than he can possibly do from the mere description of the witnesses. 
 
 IV. The Master is further authorized to take into aooodnt heoes- 
 
 SARY REPAIRS, AND LASTIHO IMPROVEMENTS, AND COSTS AND OTHER EXPENSES 
 PROPERLY INCURRED OTHERWISE, OR CLAIMED TO BE SO. 
 
 Mortgagees in possession are allowed sums laid out by them in necese 
 sary repairs and lasting improvements, with interest on them at the same 
 rate that the mortgage beats, Jloare v. Newland, Se ton (2nd Ed.) 188 i 
 Knowles ■». Chapman, lb. 225, and see lb. 200 ; Quarrell v. Beckford, 1 
 Mad. 213; Webb ». Borke, 2 Sch. & L. 675. But if the improvements 
 are not necessary to preserve, though they may increase the value of the 
 estate, the costs of them will not be allowed, as it might tend to clog the 
 right of redemption, Sandon v. Hooper, 6 Beav. 246 ; and in all such case- 
 where the works may amount to lasting improvements, the mortgagee 
 can scarcely be safe, without he get the consent or approval of the owners 
 of the equity of redemption, Sandon v. Hooper, supra; TrimlestonM. 
 Hamill, 1 B. & B. 385 ; Fisher, 888 ; Davey v. Durard, 1 DeG. & J. 535, 
 554 ; Constable v. Guest, 6 Grant, 510. 
 
 Where a person ag-reed to purchase a leasehold supposing the seller to 
 have an unincumbered title, and went into possession, and laid out large 
 sums in improvements, but not having made enquiry for the title deeds, 
 was filed with constructive notice of a prior sub-lease by way of mort- 
 gage, which he was compelled to pay off, and the seller having conveyed 
 the reversion to a third party, the purchaser was held not entitled to a 
 specific performance, but declared entitled to hold the estate as against 
 that third party, not only for the sum paid to the prior mortgagee, but 
 also for the money paid to the seller, and for any sums properly laid out 
 by him in permanent improvements in the character of a mortgagee ; ,V. 
 C. Stuart refusing to allow for all sums laid out in improvements made 
 under the impression that he was owner, Hipkins v. .Amery, 6 Jur. N. S. 
 1047, 1051. 
 
 Money paid by mortgagees in possession for taxes, for a renewal o 
 
OKDER 220. 241 
 
 leases for head rent, or in supporting the mortgagor's titl« to the estate, 
 or to make their title good against the mortgagor at law or in equity, or 
 in taking out administration to the mortgagor to secure himself in case 
 he were defeated at law, will be allowed, Fisher, 883, and cases there 
 «ited. 
 
 But by Ord. 465, a mortgagee who has proceeded at law shall not 
 be entitled to his costs in equity, unless the Court, under the circum- 
 stances, shall see fit to order otherwise. Under this order the Master has 
 no discretion. If the decree direct the costs in equity to be taxed he must 
 do so although it should appear for the first time in the progress of the 
 suit, before him, that proceedings had been taken at law. 
 
 If a mortgagor seek to deprive the mortgagee of his costs in equity, it 
 would therefore seem that the facts should appear upon the pleadings, 
 and a direction to that effect made in the decree, for it is apprehended it 
 would be too late to seek it on further directions. 
 
 In a case, however, where upon a bill being filed by a junior mortgagee 
 for redemption and foreclosure, the elder mortgagee discontinues proceed' 
 ings in a suit for foreclosure, the Master would seem to be antborized to- 
 tax him his costs of his own suit and add it to his debt, Lomax v. Hide, 
 2 Vern. 185. 
 
 But money paid for insuring the mortgaged property, in the absence of 
 any covenant for that purpose in the deed, will not be allowed. The 
 mortgagee is entitled to the benefit of the insurance money, and not being 
 liable to account to the mortgagor for it, he cannot charge him with the 
 premiums, Dobson u. Zand, 8 Hare, 216; 4 DeG. A S. 575; Ruisell »_ 
 Robertson, 1 Cham. R. 72. 
 
 A mortgagee in possession is so far a trusteee that he will not be al- 
 lowed to make any profit whatever out of the estate, e. g. allowances for 
 management, or commission on consignments, Leith v. Irvine, 1 M & E . 
 277 ; and if he have a power of sale he cannot, nor can a partnership of 
 which he may be a member, have a commission for conducting the sale 
 professionally, Mathenm v. Clarke, 3 Drew. 3. 
 
 In regard to trustees who have attempted to purchase the trust estate, 
 or guaai trustees, by reason of acquiring a title defeasible by reason of 
 fraud, &c , they will be allowed sums expended in permanent and lasting 
 improvements or such as have a tendency to bring the estate to a better 
 sale ; as in one case for a mansion house erected, plantations of shrubs, 
 Ac, York Buildings Co. v. McKenzie, 8 Bro. P. C. 42 ; ex parte Hughes, 6 
 Ves. 617 ; ex parte Bennett, 10 Ves. 400 ; and this proceeds, not upon the 
 principle, that the owner lying by and allowing improvements to be made 
 ought not to be allowed to recover the estate without paying for them ; 
 but that when a trustee expends his money, and thereby increases the 
 value of the estate, it would be inequitable to wrest it from him, without 
 repaying the expenditure, by which the estate has been substantially im~ 
 1 roved ; and he is therefore entitled to the improvements although the 
 
242 OHDER 220. 
 
 trae owner be an infant and incapable of consenting to or acquiescing in 
 them, Bevia v. Boulton, 1 Grant, 39 ; Mill v. Hill, 3 H. L. 0. 828. 
 
 In Nevilh V. Nevilh, 6 Grant, 121, 139, although tlie defendant had 
 fraudulently obtained title to the property he was allowed for improve- 
 ments. And in Pascoe v. Swan, 27 Bear. 508, the defendant denied the 
 title of the plaintiff but was allowed for lasting improvements. 
 
 Under the general language of this section the Master no doubt has 
 power to take into account "just allowances," which in England have 
 recently been authorized to be taken without direction in the decree, Sng. 
 Con. Ord. 23, r. 16. What are just allowances must depend upon the 
 circumstances of each case, and have in some manner been anticipated 
 by the remarks on what mortgagees and trustees are allowed in account 
 although a trustee can make no benefit from the estate, yet he is en- 
 titled to be held harmless from expense and loss. When necessary the 
 expense of a collector to receive rents, of bailiffs, surveyors, and account, 
 ants are allowed, and so are the necessary legal expenses of carrying the 
 trust into effect, Wilhinsmi v. Wilkinson, 2 S. & S. 237; Henderson v. 
 McTver, 3 Mad. 275 ; Macnamara v. Jones, 2 Dick, 587. A surviving 
 partner continuing the business and employing the deceased's capital; 
 may be allowed under this head for his trouble in managing it ; Cooke 
 V. Collingridge, Jac. 623 ; Brown v. DeTaslet, Ibid, 284. 
 
 And in an account of rents of estate received by superior title these 
 were directed, Howell v. Howell, 2 M. & C. 478, see Seton (2nd ed.) 38. 
 
 V. Finally, the Master is adthobizbd "Generally in the taking or 
 
 AOCOnNTS, TO ENQUIRE AND ADJUDGE AS TO ALL MATTERS RELATING THEEEAT 
 AS FOLLY AS IF THE SAME BAD BEEN EFEOIFICALLY REFERRED." 
 
 Down to a very recent period, a difference of opinion existed as to the 
 construction of this clause. It was agreed that, jurisdiction being given 
 to the Master by a previous clause of the order to take accounts of rents, 
 &c., which but for wilful default might have been received, indicated an 
 intention to confine his powers to cases of rents, &c., and not to apply 
 them to accounts of personal profit ; and that this intention was not to be 
 controlled by the general words of the last clause. That a decree simply 
 directing accounts to be taken, and a decree directing them to be taken with 
 a wilful default clause, were two entirely distinct things. The first was 
 obtained as a matter of course from an accounting party ; while the latter 
 could only be had on a bill charging specific instances of misconduct, and 
 established by evidence. And that these general words in the last clause 
 did not give the Master the power of converting one decree into the other, 
 Sleight v. Lawson, 3 K. <fe J. 292 ; Partington v. Reynolds, 4 Drew, 253. 
 And so strictly was this followed that where the original decree only di- 
 rected the ordinary accounts, enquiries as to wilful default would not be 
 granted on further directions, Goope v. Carter, 2 D. M. <fc G. 292. Bat 
 jn the case of Carpenter v. Wood, 10 Gr. 354, it has been held that these 
 

ORDERS 220—322. 243 
 
 general words authorize the Master, and make it his duty, to enquire as 
 to wilful neglect or default in taking any accounts that may be referred 
 to him. 
 
 From the large space deroted to this order, it will be inconvenient 
 to pursue it further by an investigation of the cases in which an 
 accounting party is chargeable in that stringent manner in his dealings 
 with personal property. The cases cited with reference to his liability 
 as to real estate, contain the principles upon which he is charged for 
 misconduct, or improper dealings, and a little attention will readily en- 
 able the practitioner to apply them to any case that may occur. 
 
 In concluding these remarks upon this section it may be observed that 
 the powers conferred on tlje Master do not exclude the right of the Court 
 to make a decree on the subjects embraced in at the original hearing. 
 In several of the cases cited, e. g , Larnont v. Lamont, Bevis v. Boulton, 
 and AitcJdaon v. Coombs, the decrees contained special directions on these 
 subjects. 
 
 221. Under an order of reference, witnesses may be 
 examined before any Examiner of the Court ; and foreign 
 commissions for the examination of witnesses without 
 the jurisdiction of the Court, may, on the certificate of 
 the Master, be issued by the Clerk of Records and Writs 
 upon precipe. (3rd June, 1853 ; Ord. 42, s. 14.) 
 
 A Master has jurisdiction to direct evidence to be used on an enquiry 
 before him, to be taken before any other Master, though not consented to. 
 Re Casey, 1 Cham. R. 198. 
 
 222. The Master may cause parties to be examined, 
 and to produce books, papers and writings, as he thinks 
 fit, and may determine what books, papers and writing.? 
 are to be produced, and when and how long they are to 
 be left in his office ; or in case he does not deem it ne- 
 cessary that such books and papers or writings should be 
 left or deposited in his office, he may give directions for 
 the inspection thereof, bj the parties requiring the same, 
 at such time and in such manner as he deems expedient. 
 (3rd June, 1853 ; Ord. 42, s. 14.) 
 
 An order to produce documents involves an order to leave them, if the 
 Master thinks fit so to direct, iSt(2f^n v, Liddiard, 1 Sim. 398; Shirley ii. 
 Earl Perrert, 1 M. & C. 304_ 
 
244 ORDERS 222—224. 
 
 The Court leaves it to the Master to decide whether the documents are 
 to be produced from time to time, or to be deposited, Henna v. Dimn, 6 
 Mad. 340. 
 
 As to the Master's certificate of default, see Harris v. DeTaaUt, 1 S. A 
 S. 263; Askew v. Peddle, 10 Sim. 182. 
 
 Where the Master directed the production of all books, Ac , connected 
 with one of the subjects of the reference, and nonj of them being produced, 
 a four day order obtained upon a certificate that the parties had been 
 duly summoned to produce all books, (tc, relating to the matters in ques- 
 tion in this suit, was discharged, Stubbs v. Molineux, 4 Beav. 545. 
 
 After decree, a defendant can compel production by a co-defendant, 
 Hart V. Mmtefiore, 10 W. E. 97. 
 
 As to form of Master's certificate of default, see Sutherland v. Rogers, 
 2 Cham. E. 191 ; Bennett's Ma: Off. app. 80. 
 
 223. The Master may cause advertisements for cred- 
 itors, and if he thinks it tiecessary, but not otherwise, for 
 heirs or next of kin, or other unascertained persons, and 
 the representatives of such as are dead, to be published 
 ■as the circumstances of the case require ; and in such 
 advertisements he is to appoint a time within which such 
 persons are to come in and prove their claims, and with- 
 in which time, unless they so come in, they are to be 
 excluded from the benefit of the decree. (3rd June, 
 1853 ; Ord. 42, s. 14.) 
 
 224. The Master is to proceed on the claims brought 
 in before him pursuant to such advertisement, without 
 further notice, and may examine witnesses in relation 
 thereto at the time appointed in the advertisement, or 
 thereafter, as he sees fit ; and he is to allow or disallow, 
 or adjourn the claims as to him seems just. (3rd June, 
 1853; Ord. 42, s. 11.) 
 
 In a creditor's suit the plaintiff' must prove his claim in the Master's 
 I office, and each creditor may dispute the claims of the othevs, Field v. 
 ■^Htmui, I Sim. N. S. 218 ; Owens v. Dickenson, Cr. & Ph. 48. 
 
 Although the time had elapsed, creditors were allowed to come in so 
 •long as the fund was in Couit, Iiashley v. Hogg, 11 Ves. 602; after de- 
 'ficient assets apportioned among creditors, and transferred to the account- 
 ant-general for payment to them, another creditor allowed to come in on 
 payment of consequent costs, Angellv. Haddon, 1 Madd. 529. 
 
ORDERS 224—227. 245. 
 
 lA creditor coining in after long delay every defence against his claims 
 allowed as on a new bill, and undistributed part of the assets liable only 
 proportionately, Qreig v. Somerville, 1 R. & M. S38; creditor coming in. 
 after some legatees paid, and fund carried to account of the rest, entitled 
 to a proportional pa'rt only of the latter, Gilespie v. Alexander, 3 Russ. 
 130. 
 
 Claim disallowed by chief clerk in one suit, is not barred in another, 
 Teed v. Beere, 5 Jur. N. S. 381 ; 1 W.E. 394. 
 
 A claimant in an administration suit, may be cross-examined upon his 
 affidavit in support of his claim, Cast v- Poyser, 3 Jur. N. S. 38 ; 26 L. J. 
 Ch. 353. 
 
 225. The, costs of proving such claims are, in the dis- 
 cretion of the Master, to be allowed to the creditors prov- 
 ing the same, and added to their debts respectively, or to 
 be disallowed. And in case of their being allowed, they 
 may be allowed in gross, in place of taxed costs. (3rd; 
 June, 1853; Ord. 42, s. 11.) 
 
 A creditor is entitled to the costs of establishing his debt ; and the 
 Court has jurisdictidn to order payment of costs, by a creditor failing to 
 prove his claim, Hatch v. Searles, 2 Sm. & G. 147 ; 2 W. R. 29T ; Yeoman 
 ■0. Haynes, 24 Beav. 127 ; Colycr v. Colyer, 10 W. R. 748. 
 
 The power given to the Master to allow a, gross sum in lieu of taxed 
 costs, does not affect the costs of the creditor who is plaintifiF in the suit, 
 Flintoffv. Haynes, 4 Hare, 309. 
 
 Where the fund is insufficient the costs are added to the debts and with 
 them apportioned, ilforsAcarf !;. Reynolds, 21 Beav. 638. 
 
 226. Under every order whereby the delivery of deeds 
 or execution of conveyances is directed, the Master is to- 
 give directions as to the delivery of such deeds, and to 
 settle conveyances where the parties differ, and to give 
 directions as to the parties to the conveyances, and as to 
 the execution thereof. (3rd June, 1853 ; Ord. 42, s. 14.) 
 
 227. Where any account is to be taken, the accounting 
 party is, unless the Master otherwise directs, to bring in 
 the same in the form of debtor and creditor, verified by 
 affidavit. The items on each side of the account are to 
 be numbered consecutively, and the account is to be re-- 
 
246 ORDERS 22T— 230. 
 
 -ferred to by the affidavit as an exhibit, and not to be an- 
 nexed thereto. (3rd June, 1853 ; Ord, 42, s. 6.) 
 
 Where accounts are brought in, in an improper form, a party who has 
 acquiesced therein cannot afterwards set them aside, Weale v. Rice, 0. P. 
 Cooper, 438. r 
 
 228. The Master, if he thinks fit, may direct that in 
 taking accounts, the books of account, in which the ac- 
 •counts required to be taken have been kept, or any of 
 them, be taken as prima facie evidence of the truth of 
 the matters therein contained, with liberty to the parties 
 interested to take such objection thereto as they may be 
 advised. (3rd June, 1853; Ord. 42, s. 2.) 
 
 This section applies only where the vouchers have been lost and the 
 accounts cannot be taken in the ordinary way ; such directions will not 
 be given merely to save expense, nor when ordinary evidence can be had. 
 Lodge V. Pritchard, 3D. M. & G. 906. 
 
 Accounts taken in a suit in Jamaica ordered to be taken as prima facie 
 evidence, Sleight v. Lawson, 3 K. & J. 292 ; and see Stainton v. Carron 
 Co., 24 Beav. 346. 
 
 Where the books of a manufactory, of which the plaintiff was manager, 
 were kept by the defendant, the Court held that the contents, though not 
 binding on the plaintiff, might, as he had free access thereto, be taken as 
 prima facie evidence against him, with liberty to him to surcharge and 
 falsify, Ogdens v. Battams, 1 Jur. N. S. 191 ; and see Banks v. Cartwright, 
 15 W. R. 417 ; Hardwicke v. Wright, 15 W. R. 953. 
 
 Where a solicitor was ordered to deliver a bill of costs, an agreement 
 for the payment of a fixed sum being- set aside, V. 0. Stuart refused to 
 direct that entries made by him several years before, and cotemporaneous 
 with the transactions, should be taken as prima facie evidence, Coleman 
 i>. Mellersh, 2 Mac. & G. 309. 
 
 229. No states of facts, charges, or discharges, are to 
 be brought into the Master's office ; and where original 
 deeds or documents can be brought in, no copies are to be 
 made without special direction. (3rd June, 1853 ; Ord. 
 42. s. 5.) 
 
 230. Where directed copies, abstracts of, or extracts 
 from accounts, deeds, or other documents and pedigrees. 
 
ORDERS 230—234. 247 
 
 and concise statements, are to be supplied ; and where 
 so directed, copies are to be delivered as the Master may 
 direct. (3rd June, 1853 ; Ord. 42, s. 5.) 
 
 231. A party directed by the Master to bring in any 
 account, or do any other act, is to be held bound to do the 
 same in pursuance of the direction of the Master, with- 
 out any warrant or written direction being served for that 
 purpose. (3rd June, 1853 ; Ord. 42, s. 2.) 
 
 ' 232. Before proceeding to the hearing and determining 
 of a reference,, the Master may appoint a day in the 
 meantime, if he thinks fit, for the purpose of entering 
 into the accounts and enquiries, with a view to ascer- 
 taining what is admitted and what is contested between 
 the parties. (3rd June, 1853 ; Ord. 42, s. 2.) 
 
 233. Where the Master has omitted to appoint a day 
 for the purposes mentioned in Order 232, he may grant 
 to the party bringing in accounts a warrant to proceed on 
 the same, for the purposes aforesaid ; such warrant to be 
 underwritten, as follows : " On leaving the accounts of, 
 &c. ; and take notice that you are required to admit the 
 same, or such parts thereof as you can properly admit." 
 (3rd June, 1853 ; Ord. 42, s. 3.) 
 
 234. Where it becomes necessary to adduce evidence, 
 or to incur expenses otherwise, in establishing or proving 
 items of account, or other matters which in the judgment 
 of the Master ought, under all the circumstances, to have 
 been adrnitted by the party sought to be charged there- 
 with, and which the party has refused to admit, the 
 Master, before making his report, is to proceed to tax 
 such costs, occasioned by such refusal, as shall appear 
 to him reasonable and just, and shall state in his report 
 the amount of such costs and how the same were occa- 
 sioned. (3rd June, 1853 ; Ord. 42, s. 3.) 
 
248 ORDERS 235—239. 
 
 235. The party to whom costs are payable under Order 
 234, is to be entitled, upon the Master's report becom- 
 ing absolute to the process of the Court to compel pay- 
 ment thereof as in other cases. (3rd June, 1853; Ord. 
 42, s. 3.) 
 
 236. Where the party entitled to receive the general 
 costs of the cause is the party ordered to pay costs under 
 Order 234, he is at liberty to deduct such costs from the 
 general costs, where the general costs and the interlocu- 
 tory costs, are between the same parties. (3rd June, 
 1853 ; Ord. 42, s. 3.) 
 
 237. A party seeking to charge an accounting party 
 beyond what he has in his account admitted to have re- 
 ceived, is to give notice thereof to the accounting party, 
 stating so far as he is able, the amount so sought to be 
 charged, and the particulars thereof in a short and suc- 
 cint manner. (3rd June, 1853; Ord. 42, s. 7.) {Eng. 
 Con. Ord. 35, r. 34.) 
 
 An accounting party who files an affidavit'; verifying his account, if he 
 is cross examined on such affidavit is entitled to notice of the points on 
 which he is to be cross-examined, Re Lord, 2 L. R. Eq.'605] Wormsley 
 Slurt, 22 Beav. 398. 
 
 238. The Master is to keep in his office a book, to be 
 called the " Master's Book," in which, upon the bringing 
 in of an order of reference, are to be entered, the style 
 of the cause, the name of the solicitor prosecuting the 
 reference, the date of the order being brought in, and the 
 proceedings then taken ; and the Master is also to enter 
 therein, from time to time, the proceedings taken before 
 him, and the directions which he gives in relation to the 
 prosecution of the reference, or otherwise, (^rd June,. 
 1853 ; Ord. 42, s. 4.); 
 
 239 Upon the application of any person, the Master 
 is to certify, as shortly as he conveniently can, the several 
 
ORDERS 239—243. 249 
 
 proceedings had in his office, in any caupe or matter, and 
 the dates thereof. (3rd June, 1853 ; Ord. 42, s. 9.) 
 
 This order Is somewhat different in its language from the order of 3rd 
 June, 1853. By the latter order the certificate could be obtained only, 
 upon any application being made to the Court, and then, only by the 
 person making the application. 
 
 As to form of certificate of default in not bringing accounts or documents 
 into the Master's office, see Sutherland u. Rogers, 2 Cham. R. 191 ; Ben- 
 nett's Mas. Off. App. 30. . 
 
 240. In giving directions, and in regulating the man- 
 ner of proceeding before him, the Master is to devise and 
 adopt the simplest, most speedy, and least expensive 
 method of prosecuting the reference, and every part 
 thereof; and with that view, to dispense with any pro- 
 ceedings ordinarily taken, but which he conceives lo be 
 unnecessary and to shorten the periods for taking any 
 proceedings ; or to substitute a different course of pro- 
 ceedings for that ordinarily taken. (3rd June, 1853 ; 
 Ord 42, s. %.^f?QatS}»U^ti>efn//ayif,/>ai-7lZ^^'i..6'^!>: 
 
 241. Where the Master directs parties not in attend- 
 ance before him, to be notified to attend at some future 
 day, or for different purposes at different future days, it 
 shall not be necessary to issue separate warrants, but the 
 parties shall be notified by one appointment, signed by the 
 Master, of the proceedings to be taken, and of the times 
 by him appointed for taking the same. {29th June, 1861.) 
 
 242- Where parties are notified by appointment from 
 the Master, of proceedings, to be taken before him, no 
 warrants are to be issued as to such parties, in relation 
 to the same proceedings. (29lh June, 1861.) 
 
 243- Parties making default upon such appointments^ 
 are td be subject to the same consequences as if warrants 
 had been served upon them. (29th June, 1861.) 
 
250 ORDERS 244—247. 
 
 244. Where in proceedings before the Master, it ap- 
 pears to him that some persons not already parties ought 
 to be made parties, and ought to attend, or be enabled to 
 attend the proceedings before him, he may direct an 
 office-copy of the decree to be served upon such parties j 
 and upon due service thereof, such parties are to be 
 treated and named as parties to the suit, and are tp be 
 bound by the decree in the same manner as if they had 
 been originally made parties. (3rd June, 1853 ; Ord. 
 42, s. Vo.)JU^/>*^ ,rJcWdim^,2Syz.2Z. 
 
 245- The office-copy of a decree directed to be served 
 under Order 244, is to be indorsed with a notice to the 
 effect set forth in schedule L to these Orders, with such 
 variations as circumstances require. (3rd June, 1853; 
 Ord. 42. s. 15.) 
 
 246. A party served with an office-copy of a decree 
 under Order 244, may apply to the Court, at any time 
 within fourteen days from the date of such service, to 
 discharge the order, or to add to, vary, or set aside the 
 decree, (3rd June, 1853 ; Ord. 34, s. 7.) 
 
 The time of vacation is not reckoned in the computation of the fourteen 
 fl ays, Ord. 408. 
 
 The Court has jurisdiction in a proper case to entertain an application, 
 after the expiration of the fourteen days, Stewart v. Hunter, 2 Cham, R. 
 265. 
 
 247. As soon as the hearing of any matter pending be- 
 fore the Master is completed, he shall so inform the parties 
 to the reference then in attendance, and make a note to 
 that effect in his book ; and after such entry no further 
 evidence is to be received, or proceedings had, without 
 the special permission of the Master ; and the Master 
 may proceed to prepare his report or certificate without 
 further warrant, except the warrant to settle, which is to 
 be served on the parties, as the Master directs. (3rd 
 June, 1853 ; Ord. 42, s. 16.) 
 
ORDERS 247—248. 261 
 
 ' A Master's report should bear date the day it is actually signed, and a 
 Local Master cannot sign his report until the costs are finally revised and 
 settled, Waddeli v. McColl, U Grant, 211. 
 
 248. Parties are to raise before the Master, in respect 
 of any matter presented in his office, for his decision, all 
 points which may afterwards be raised upon appeal ; and 
 in case an appeal is allowed on any ground not distinct- 
 ly taken before the Master, the Court may order the ap- 
 pellant to pay the costs of the appeal. (.6th Feb. 1865 ; 
 Ord. 36.) 
 
 Permitting appeals without objections being previously taken, was a 
 great injustice to the Masters of the Court, as on many occasions objec- 
 tions were taken and argued before the Court on the appeal, which had 
 they been brought under the notice of the Master, would have led him to 
 re-consider his decision and induced him to come to a dififerent conclusion 
 from that at which he did arrive. As objections are the foundation for 
 exceptions, and as the latter must strictly follow the objections, great 
 attention is required in framing them, so that the points may be properly 
 brought before the Court, Ballard v. White, 2 Hare, 158. 
 
 In England the practice was that there should be four days between the 
 issuing of the warrant " to sign the report" and the return, to allow the 
 opposing or other parties time to object to the draft of the report, if so 
 advised. Where parties were dissatisfied with the Master's finding, and 
 were advised to bring that finding more particularly before the Court, 
 they had then four days allowed them to bring in objections to the draft 
 of such report ; and unless those objections were carried in, the Court 
 would not afterwards allow a party to except to the report ; unless under 
 very special circumstances, Noel v. Ward, 1 Madd. 839 ; Pennington v. 
 Lord Muneaster, 1 Madd. 555 ; Wood v. Lambirth, 9 Sim. 195. Where 
 permission given to file exceptions, where no objections to the draft re- 
 port brought in before the Master, the party depending upon the chance 
 of his appeal to the Court seeking delay, though the objections are al- 
 lowed, yet the party, for the neglect and occasioning trouble to the Court, 
 shall pay such costs as the Court thinks reasonable, Bowher v. Nickson, 
 3 Madd, 439 ; leaving objections not mere form, but to enable the Master 
 to re-consider his opinion. Ibid. 
 
 Where, from the nature of the case, the Master considers it proper to 
 allow the party further time to prepare and bring in his objections, he 
 does so, on his being attended by the parties on a warrant taken out for 
 that purpose, by the party requiring time. As to objections generally, 
 see OtUy v. Fensam, 1 Hare, 322. 
 
252 ORDERS 249—253. 
 
 249. In the Master's reports no part of any account, 
 charge, affidavit, deposition, examination, or answer, 
 brought in or used in the Master's office, is to be stated 
 or recited, but, instead thereof, the same may be referred 
 to by date or otherwise, so as to inform the Court aS' to 
 the paper or document so brought in or used. (3rd June, 
 1853 ; Ord. 42, s. 12.) 
 
 250. Reports affecting money in Court, or to be paid 
 into Court, are to set forth in figures, in a schedule, a brief 
 summary of the sums found by the report, and which 
 may be paid or payable, into, or out of Court. (10th 
 Sept. 1866 ; Ord. 16.) 
 
 251- As soon as the Master's report or certificate is 
 prepared, it is to be delivered out to the party prosecuting 
 the reference, or in case he declines to take the same, 
 then, in the discretion of the Master, to any other party 
 applying therefor ; and a common attendance is to be al- 
 lowed to the party taking the same. (3rd June, 1853 ; 
 Ord. 42, s. 16.) 
 
 252. A report is to become absolute, without an order 
 confirming the same, at the expiration of fourteen days 
 after the filing thereof, unless previously appealed from. 
 (29th June, 1861.) 
 
 253. An appeal shall lie to the Court, upon motion, 
 at any time after the signing of the report until the expi- 
 ration of fourteen days from the filing of the same, in re- 
 spect of the finding of the Master upon any matter pre- 
 sented in his office for his decision, without written 
 objections or exceptions being previously taken. (29th 
 June, 1861.) 
 
 This order differs from the order of the 2l3t June, 1861, by providing 
 for an appeal without written objections being taken ; as to taking ob- 
 jections see Order 248. 
 

ORDER 253. 253 
 
 If any of the parlies are dissatisfied with the Master's report, an appeal 
 from it may be brought at any time within fourteen days after it is filed 
 and the service of a notice of motion by way of an appeal within the four- 
 teen days will prevent the report being confirmed, although the appeal 
 may not be heard till after the expiring of the fourteen days, Ctrimshawe 
 V. Parks, 6U. O.L.J. 142. 
 
 When the fourteen days have been allowed to pass without serving no- 
 tice of appeal, the Court may, under special circumstances, give leave to 
 appeal ; but such leave can be obtained only upon motion, notice of which 
 must be given, Cozens v. McDougal, 1 Cham. R. 29 ; Lai kin v. Armstrong, 
 1 Cham. R. 31 ; Cade v. Newhatl, 1 Cham. R. 200 ; and as to what should 
 be shewn on such an application, see Thompson v. Walker, 1 Cham. R- 
 266. ^v^i-a^c/ti^i^^'rt^^ Z6?.iX..^/Z2.f2.0/. 
 
 A party having delayed for one day beyond the time allowed for ap- 
 pealing, the other side, instead of moving to set aside the proceeding, 
 served notice of a cross appeal, it was held that the irregularity was 
 thereby waived, LarHn V.Armstrong, 1 Cham. E. 31. 
 
 Where the Master made a clerical error in his report, apparent on the 
 face of it, the Court made an order correcting the report on the ex part, 
 application of the plaintiflT, White v. Courtney, 1 Cham. R. 11 ; Watsrni v . 
 Moore, 1 Cham. R. 266 ; but where the Master, in proceeding to take an 
 account under a decree on further directions, finds he has made a mistake 
 in taking the accounts under the original decree, he is not at liberty to 
 correct such mistake by his subsequent report. The Master having, with- 
 out the order of the Court, reviewed his first report, and corrected by his 
 subsequent report an error found in the first, it was held that he had ex- 
 ceeded his jurisdiction, and that the objection being apparent on the face 
 of the report, the objecting party was not driven to appeal, Crooks v. 
 Street, 1 Cham. R. 18. 
 
 The Master's report is prima facie evidence of what it contains, unless 
 appealed from, and no motion founded on such report can be entertained 
 while the appeal is unheard, Nichols v. McDonald, 6 Gfant, 469. 
 
 All applications in the nature of an appeal from a Master's judgment 
 should be made in Court and not in Chambers, Ledyardv. McLean, 1 Cham. 
 R. 183; Jay v. Macdonell, 2 Cham. R 71; and see Could v. Burrilt, 1 
 Cham. R. 250. As to apportioning costs where some grounds of appeal 
 fail and others succeed, see Bank of Montreal v. Byan, 13 Grant, 204. 
 
 There may, in a proper case, be an appeal from the Master's ruling a^ 
 to the admissibility of evidence, before the Master makes his report, 
 McDonald v. Wright, 12 Grant, 552. 
 
 ^ Where an incumbrancer who objected to the order of priority in which he 
 was placed, appealed from the finding of the Master, the Court considered 
 
254 ORDERS 253—256. 
 
 this the more convenient form to adopt, although it was open to him, 
 to have moved to discharge the Master's order, McDonald v. Roger, 9 
 Grant, 75. 
 
 Where a party appealed from a report and some of the grpunds of ap- 
 peal were allowed, and the Report referred back to be reviewed, an appea 1 
 will not lie against the further report thereon, for matters disposed of bj 
 the first report, and not objected to on the appeal, Jlosi v. PeirauU, 13 
 Grant, 206. 
 
 Where a reference back to the Master to review his report is directed, 
 the Master is as of course at liberty to receive further evidence ; where 
 the Court does not mean that he shall take further evidence, the order 
 contains a direction to that effect, unless the reference back is expressed 
 to be for a purpose on which further evidence could not be material, 
 Morley v. Matthews, 12 Grant, 453. 
 
 254. Any party affected by a report may file the same, 
 or a duplicate thereof, and the filing of a duplicate shall 
 have the same effect as the filing of the report. (29th 
 June, 1861.) 
 
 255- Where the Master is directed to appoint money to 
 be paid at some time and place, he is to appoint the same 
 to be paid into some bank at its head office, or at some 
 branch or agency office of such Bank, to the joint credit of 
 the party to whom the same is made payable, and of the 
 Registrar of the Court ; the party to whom the same is 
 made payable to name the Bank into which he desires 
 the same to be paid, and the Master to name the place 
 for such payment. (29th June, 1861.) 
 
 This order is an extension of the order of 29th June, 1861, which pro- 
 vided for the payment of mortgage money only at a bank. 
 
 Where before the day for payment the agency of the bank was closed, 
 on motion to substitute another bank at the same place, it was held that 
 a new day for payment must be fixed, and the order served, King v. Con- 
 nor, 1 Cham. B. 274. 
 
 256. Where money is paid into a Bank, in pursuance 
 of such appointment, the party paying, may pay the same 
 either to the credit of the party to whom the same is made 
 payable, or to the joint credit of the party and the Regis- 
 
ORDERS 256—258. 255 
 
 trar ; and if the same be paid to the sole credit of the party, 
 such party shall be entitled to receive the same without 
 the order of the Court. (29th June, 1861.) 
 
 As to costs of obtaining an order for payment of the money, see Bernard 
 V. Alley, 2 Oliam. R. 91. 
 
 257- Where default is made in the payment of money 
 appointed to be paid into a Bank, the certificate of the 
 Cashier, Manager, or Agent of the Bank, where the same 
 is made payable, or of the like Bank officer, shall be suf- 
 ficient evidence of default. Where the affidavit of the 
 party entitled to receive the same is by the present prac- 
 tice required, the same shall still be necessary. (29th 
 June, 1861.) 
 
 The Bank certificate of non-payment should be made by the Cashier or 
 other like officer, the certificate of the accountant, as such, is not sufficient 
 Campbell v. Garrett, 1 Cham. R. 255. 
 
 XIX.— AFFIDAVITS. 
 
 258. All affidavits are to be taken and expressed in 
 the first person of the deponent, and his name at the 
 commencement of the affidavit is to be written in full, 
 and not designated' by any initial letter merely ; and the 
 jurat may be in the form or to the effect set forth in 
 schedule M hereunder written. No costs are to be 
 allowed in respect of an affidavit which has not been 
 drawn in conformity with this order. (3rd June, 1853 ; 
 Ord, 40, s. 5.) 
 
 Every alBdarit to be used in any cause or matter must be written in a 
 plain and legible manner, and must be divided into paragraphs, and every 
 paragraph must be numbered consecutively, and be confined as nearly as 
 may be to a distinct portion of the subject, and if any afSdavit violate 
 the above directions, no costs are to be allowed for it, nor can it be used 
 in support of, or in opposition to, any motion without the express per- 
 mission of the Court, Ord. 68. 
 
256 ORDER 258—259. 
 
 Every affidavit should be intituled in the cau^^'matter in which it 
 is made, and contain the true place of residence, description, and addi- 
 tion of the deponent, and great care should be taken that the names of 
 parties are accurately set forth, Salomon o. Stalman, 4 Beav. 243 ; May v. 
 Prinsep, 11 Jur. 1032; but see Hawes v. Samford, 9 Sim. 653; Pearson v 
 Wilcox, 10 Ha. App. 35, where affidavits erroneously entitled, were 
 allowed to be taken off the file, and sworn without a fresh stamp ; and see 
 Fisher v. Coffey, 1 Jur. N. S. 956. This order does not apply to parties in 
 the cause, who may describe themselves as the above mentioned plaintiff 
 or defendant, without specifying any residence, addition or other descrip- 
 tion, Crockett v. Bishton, 2 Madd. 446 ; see further, as to the title of affi- 
 davits, Re Harris, 8 Jur. N. S. 166 ; Re Barnes, 5 L. T. N. S. 787. If 
 made on a petition under an Act of Parliament, they must be entitled in 
 the Act, Mackenzie v. Mackenzie, 6 DeG. & S. 338. 
 
 An affidavit cannot be made in a suit until the bill is filed, Francome v. 
 Francome, 13 W. R. 355 ; Fennal v. Brown, 18 Jur. 1051 ; but where it is 
 necessary to have an affidavit annexed to a bill at the time of filing, it is 
 no objectio.n to the affidavit that it was sworn before the bill was filed. 
 Walker v. Fletcher, 12 Sim. 420. 
 
 Affidavits filed under a petition, the heading of which has been altered, 
 need not be resworn, but may be made evidence in the petition under the 
 new title by a short affidavit referring to them, Jie Varteg Iron Work*, 
 Wetleyan Chapel, 10 Ha. App. 37. 
 
 Affidavits filed in a cause may be read in support of a petition in the 
 cause, Jones v. Tumbull, 22 L. J. Ch. 1055 ; or by leave of the Court, of 
 a petition in the matter, Be Pickance, 10 Ha. App. 35. 
 
 Affidavits sworn abroad in the third person received as evidence, He 
 Husband, 12 L. T. N. S. 303; Drydenv. Frost, 8 Sim. 380; and trifling 
 irregularities have been overlooked, see Gates v. Beechland, 13 W. R. 67 • 
 Meek v. Ward, 10 Ha. App. 1 ; but the signature of the party cannot be 
 dispensed with, Anderson v. Slather, 9 Jnr. 1086 ; nor the words " make 
 oath," Phillipi v. Prentice, 2 Ha. 542 ; Re Newton, 2 D. P. 4 J. 3. 
 
 An affidavit containing scandalous and irrelevant matter may be 
 ordered to be taken off the file, Goddard v. Parr, 3 W. R. 633 ; Kemick 
 1). Kemick, 12 W. R. 335. 
 
 259. Each statement in an affidavit, which is to be 
 used as evidence on any proceeding before the Court, or 
 before a Judge, or before an officer of the Court, is to 
 shew the means of knowledge of the person making the 
 statement. (lOlh July, 1861.) 
 
 Where there is no personal knowledge, the words " I am informed,' 
 are the same as " I believe," Woodhateh v. Freeland, 11 W. R. 398. 
 
ORDERS 260—262. 257 
 
 260. Affidavits,, either in support of, or in opposition 
 to, any special motion or petition, are to be filed, with 
 -the Clerk of Records and Writs. This Order is npt to 
 be taken to warrant the taxation of the costs of obtain- 
 ing office-copies of affidavits, for use upon the hearing 
 of any matter, by the party on whose behalf they are 
 filed. (3rd Jane, 1853 ; Ord. 40,, s. 2 ; 29th June, 1861.) 
 
 261. All the affidavits upon which a notice of motion, 
 or petition is founded, must be filed before the service of 
 the notice of motion or petition ; and affidavits in answer 
 must be filed not later than the day before that appointed 
 for the hearing of the motion, or petition. (3rd June, 
 1853 ; Ord. 40, s. 2 ; 29th June, 1861.) 
 
 Affidavits of service must be filed at latest before the rising of the 
 Court on the day on which the application is made, Lord Miltown v. 
 Stuart, 8 Sim. 34- 
 
 In a very special case affidavits filed after the motion was opened 
 
 were admitted, East Lancashire Rail, Co. v. Hattersky, 8 Ha. 86; and see 
 
 Smith V. Swansea Dock Co., ^9 Ha. App. 20 ; and where an affidavit was 
 
 filed too late for the hearing of a petition, it has been admitted on appeal, 
 
 ' Re Gibraltar & Malta Banking Co., 13 L. T. N. S. 263. 
 
 In giving notice of motion, and that the party moving will read cer- 
 tain affidavits, if the same are filed at any time before the date of the 
 notice of motion, the notice must state the date of the filing thereof 
 •otherwise they cannot be used, Eraser v. Fraser, 13 Grant, 183 ; and see 
 Clement v. Griffith, Coop. 470. 
 
 XX.— MOTIONS AND PETITIONS. 
 
 262. A notice of motion by a .party to the suit, may be 
 served with the bill, or at anytime after the bill is served, 
 without the leave of the Court. (3rd June, 1853 ; Ord. 
 39, s. 1.) 
 
 This is a variation Irom the Order of 3rd Jane, 1S53, which per- 
 mitted a notice of motion to be served at any time after bill filed. 
 
 A notice of motion given for a day which is not a regular Court day 
 
 unless the leave of the Court has been obtained, is a void proceeding and 
 
 the party served need not appear thereon, Stevenson v. Huffman, 4 Grant, 
 
 ■318 ; Steedman v. Poole, 11 Jur, 555 ; and if leave is given to serve notice 
 
 17 
 
258 ORDER 262. 
 
 for such a day, or to give less than two clear days notice, it must be so 
 stated in the notice of motion, Hill v. Rimell, 8 Sim. 632 ; Harris v, Lewis, 
 8 Jur. 1063 ; but when an injunction is granted to a particular day, and 
 which is not a motion day, and the writ is served, together with a notice 
 of motion for that day to extend the injunction, the notice is not irresjular, 
 though it omits to mention that such notice is given by leave of the Court, 
 Johnson v. Oass, 11 Gr. 11 V. 
 
 The notice should set out the style of the cause correctly, Rowlait v. 
 Cattell, 2 Hare, 186 ; Pollard v, Doyle, 2 W. R. 509 ; and should express 
 shortly the object of the application, the person on whose behalf it is 
 made, and the day on which it is returnable. If it be intended to 
 ask for the costs of the application the notice should so express it. 
 otherwise if the respondent does not appear the costs of the motion 
 cannot be given, Pratt v. Walker, 19 ,Beav. 261 ; but if he do appear 
 costs may be given though not asked by the notice, Cla:rk v. Jaques, 
 11 Beav. 623 ; Sutler v. Gardener, 12 Bear. 525 ; Dawson v. Jay, 2 W. 
 R. 598. 
 
 Where a notice of motion was directed to the solicitor of the opposite 
 party by a wrong name, an order obtained upon an affidavit of service 
 thereof was set aside as irregular. Moody v. Hcbberd, 11 Jur. 941. 
 
 Affidavits upon which any notice of motion is founded must be filed at 
 the time of the service of such notice of motion, and affidavits in answer 
 must be filed not later than the day before that appointed for the hearing 
 of the motion, Ord. 261. 
 
 AfBdavits cannot be used on a motion, where no intention to read affi- 
 davits thereon is mentioned in the notice of motion, Parish v. Martin, 
 1 Grant, 300. 
 
 If a plaintiff gives notice of his intention to read an affidavit on the 
 hearing of a motion, but declines to do so, the defendant is nevertheless- 
 entitled to read it, Cauty v. Houlditch, 14 Sim. 16 ; Clarke v. Law, 2 K. 
 & J. 28. 
 
 " A party is not bound to search for affidavits further back than the date 
 of the notice of motion ; and if it be intended upon making the motion 
 to read any affidavits which have been previously filed in the cause, notice 
 of such intention should be given to the opposite party, Clement v. 
 Griffiths, Coop. 470 ; Praser v. Fraser, 13 Grant, 183. 
 
 The Court will at any time previous to the hearing postpone a motion, 
 in order to give time for filing affidavits in reply. Electric Telegraph Co 
 v.Nott, 11 Jur. 213. 
 
 Oral evidence may also be used upon any motion ; for the mode of pro- 
 curing the attendance of witnesses and of cross-examining parties who 
 have made affidavits, see Ord. 266. 
 
 When a notice of motion embraces two objects and the principal one 
 fails, the party moving must pay the costs, Sturch v. Young, 5 Bear. 557. 
 The plaintiff having given notice of motion for an injunction it was. 
 
ORDERS 262—264. 259 
 
 ordered to stand oyer a,t the request of the defendant ; before the motion 
 was heard the defendant filed a demurrer, which was allowed together 
 with the costs of the suit, held that the defendant was entitled to the 
 costs occasioned by the motion, Fenden v. Stephens,'12 Jur. 319. 
 
 A motion which has been opened cannot be afterwards treated by the 
 party moving, as an abandoned motion, but the parties opposing are 
 entitled to their costs as on a motion refused, Dugdale v. Johnson, 5 
 Hare, 92. 
 
 Where costs of an abandoned motion have been ordered to. be paid, a 
 second motion for the same purpose cannot be made until the costs of the 
 first have been paid, Bellchamber v. Giani, 3 Mad. 550 ; Killing v. Killing, 
 6 Madd. 68 ; OUfldd v. Cobbett, 12 Bear. 91 ; Denison v. Devlin, 11 
 Grant, 84 ; and see notes 23 Beav. 550. 
 
 "Where a motion is refused with costs, a second motion for the same 
 purpose cannot be made until the costs of the first are paid, Harvie v. 
 Fsrgusson, 1 Cham. R. 218. • 
 
 263- There must be at least two clear days between 
 the service of a notice of motion, and the day named in 
 the notice for hearing the motion, unless the Court or a 
 Judge, give special leave to the contrary ; and in the 
 computation, of such two- clear days, Sundays, and days 
 on which the offices are closed, are not to be reckoned. 
 (3rd June, 1853 ; Ord. 39, s. 2.) 
 
 264- Except in cases where it is otherwise provided, 
 there must be at least two clear days between the service 
 of a petition, and the day appointed for hearing the same ; 
 and in the computation of such two clear days, Sundays, 
 and days on which the offices are closed, are not to be 
 reckoned. (3rd June, 1853 ; Ord. 39, s. 2.) 
 
 When an application is of such a nature as to require a detailed state- 
 ment of the facts and circumstances upon which it is founded, the proper 
 course is to make it by petition. 
 
 And as a general rule where an application is made in a suit by any 
 person not a party to the suit, it should be made by petition ; but when 
 the notice of motion shews the title of the applicant, and no long state- 
 ment of facts is necessary for that purpose, a person not a party to the 
 record may apply by motion, Jones v. Moberts, 12 Sim. 189 ; Earl of Port 
 Darlington v. Darner, 2 Phil. 264. 
 
 Where a decree reserved further directions and cosfg, but the further 
 
260 ORDERS 264—266. 
 
 directions became unnecessary, tlie costs were disposed of upon petition, 
 Winthrop v. Winthrop, Coop. 201. 
 
 If presented by a person not a party to the suit, his name, residence 
 and description must be set forth, Glazhrook v. Gillatt, 9 Eeav. 492 ; Hun- 
 ter 11. Mountjoy, 2 Cham. R. 90. 
 
 A petition may be amended by consent, at the hearing, Matson v. Swift, 
 9 Jur. 521 ; or even after the order is drawn up, Hidop v. Wykeham, 
 3 "W. E. 286 ; Re Bunnett, 1 Jur. N. S. 921 ; but where a petition was 
 amended by stating facts which occurred after the leave to amend was 
 given, it was dismissed with costs, Doubtfire v. Elworthy, 15 Sim. 11. 
 
 Before any order made on a petition can be passed, the original petition 
 must be filed, and where the original was lost, the Court allowed a .copy 
 to be filed in its stead, Sanderson v. Walker, 1 M. <fc C. 359 ; Smith v. Har- 
 wooi, 1 Sm. & G. 137; and the same was allowed where the petitioner 
 refused to deliver the petition to the respondents to be filed, Andrews v. 
 Walton, 1 M. & 0. 360 ; Jte Hobler, 9 Jar. 419. 
 
 In general a party served with a petition will not be entitled to his 
 costs, if he appears merely for the purpose of claiming them. Barton v. 
 Latour, 18 Beav. 526; Day v. Croft, 19 Beav. 518. 
 
 265. It shall not be necessary to procure a Judge's 
 fiat to a petition appointing a time and place for the hear- 
 ing thereof, but in lieu of such fiat there is to be indorsed 
 on the petition a notice addressed to the parties concerned, 
 staling the time and place at which the petition is to be 
 heard, and informing them that if they do not appear on 
 the petitition at such time and place, the Court may 
 make such order, on the petitioner's own shewing, as 
 shall appear just. (6th Feb. 1865 ; Ord. 30.) 
 
 266. A party in any cause or matter may, by a writ 
 of subpcena ad testificandum, or duces tecum, require the 
 attendance of a witness before the Court, or before a 
 Master, or an Examiner, for the purpose of using his 
 evidence upon any motion, petition, or other proceeding 
 before the Court. (Srd June, 1853 ; Ord. 40, s. 7.) 
 
 On amotion for an injunction against one defendant, the cross-exami- 
 nation of another defendant on his answer, is inadmissible in reply to 
 affidavits filed in answer to the motion, where the defendant against 
 whom the plaintiff moves had no notice of the cross-examination, or of 
 the intention to read the deposition? on the motion, Curtis v. Dale, 12 
 Grant, 244. 
 
ORDER 266. 261 
 
 The examiner is not to judge what eyidence is releyant or adverse, 
 Buckley v. Cooke, 1 K. & J. 29. As to the powers and privileges of an 
 examiner in general, see Wright v. Wilkin, 6 W! R. 643. A defendant 
 may cross-examine another defendant's witnesses, Lord v. Colvin, 3 
 Drew, 222. 
 
 The Master is bound to allow a witness to be cross-examined on the 
 whole case, without regard to his examination in chief ; but in some cases 
 he may exercise his discretion as to who should pay the fees of the ex- 
 amination, Crandell v. Moon, 6 U. C. L. J. H3. 
 
 A defendant may cross-examine a co-defendant's witness, Lord v. 
 Colvin, 3 Drew. 222 ; all the evidence is common to all parties, Sturgis 
 V. Morse, 26 Beav. 562. 
 
 •Where defendant cross-examines plaintiff's witness it is convenient 
 that other defendants ■ in the same interest with plaintiff should cross- 
 examine him afterwards, and then the first defendant re-examine, Harri- 
 son V. Mayor of Southampton, 2 Jur. N. S. 435 ; where plaintiff and other 
 defendants wish to cross-examine, it is convenient that plaintiff cross- 
 examine first, Lord v. Colvin, 3 Drew. 222. 
 
 A solicitor cannot be compelled to produce his client for examina- 
 tion, Spicer v. Dawson, 22 Beav. 282 ; Winthrop v. Elderion, 1 W. R. 
 318. 
 
 A witness who is required to attend under this section is not entitled 
 to forty-eight hours, notice of such examination, but to such notice, 
 whether more or less, as under the circumstances may be reasonable, He 
 North Wheal Exmouth Mining Co., 8 Jur. N. S. 1168 ; 31 Beav. 628 ; 
 where a party to the suit, having no solicitor, is required to attend to be 
 examined, he should have forty-eight hours' notice given him, Watson ». 
 Ham, 1 Cham. R. 293. 
 
 A witness who has waited at the Examiner's office half an hour with- 
 out receiving any notice that it is intended to proceed with the examina- 
 tion, may leave with impunity, Perks v. Stottart, 1 N. R. 563. 
 
 Professional witnesses may require compensation before giving evi- 
 dence, Clarke v. Gill, 1 K. & J. 19 ; the scale of allowance in such a 
 case does not depend on a witness's valuation of his own time, but con- 
 sists of a fixed payment, corresponding with that allowed in Courts of 
 Common Law, Nokes v. Gibbmi, 3 Jur. N. S. 282 ; Turner v. Turner, 1 
 W. R. 513. A witness may demand to have his travelling expenses paid 
 before attending to be examined, Brocas v. Lloyd, 23 Beav. 129; and 
 when brought up to be examined he may insist, before giving evidence, 
 on being paid for his loss of time, Wiltshire v. Marshall, 1 W. N. (1866), 
 80 ; and the rule applies to parties to suits as well as other witnesses, 
 Davey v. Durant, 24 Beav. 493. 
 
 Documents used on the examination of witnesses before an examiner 
 must be properly marlied by the officer, and referred to in the evidence, 
 otherwise they cannot be read at the hearing, Hollywood v. Waters, 
 6 Grant, 829. 
 
262 ORDERS 266—269. 
 
 As to compelling the attendance of witnesses, see note to Order 188. 
 
 When a witness objects to answer because the examination is irregu- 
 lar, the partj examining him should move that the examination maj pro- 
 ceed. Rendu o. Metropolitan 4r Provincial Bank, 15 W. R. 1068 ; Leather 
 Cloth Co. I). Hirsch/eld, 1 H. & M. 295 ; but if he objects that he is pro- 
 hibited from making the discovery, the demurrer should be set down for 
 hearing, Daniel's Pr. 863 ; and where an examiner, notwithstanding the 
 demurrer of a witness, took upon himself to examine the witness, the 
 depositions were suppressed, even though the demurrer was held unten- 
 able, Goodalev. Gawthom, 4 DeG. <St Sm. 97. 
 
 A defendant may be examined viva voce in support of a motion, notice 
 of which has been given, although the time for answering has not ex- 
 pired, McClennaghan v. Buchanan, 1 Grant, 92. 
 
 267. Forty-eight hours notice of the examination is to 
 be given to the opposite party, or parties, and the cross- 
 examination, in such case, is to follow immediately upon 
 the examination, and is not to be deferred to any future 
 time. (3rd June, 1853 ; Ord. 40, s. 8.) 
 
 This order applies to the opposite party, not to the witness, who is 
 entitled to reasonable notice, according to circumstances, Re North 
 Wheal Exmouth Mining Co. 31 Beav. 628. 
 
 268. Any person having made an affidavit to be used, 
 or which shall be used on any motion, petition, or other 
 proceeding before the Court, shall be bound to attend for 
 the purpose of being cross-examined, on being served 
 with a writ of subpoena ad testificandum, but the Court 
 nevertheless, may act on the evidence before it at the 
 time, and may make such interim order, or otherwise, as 
 appears necessary to meet the justice of the case. (3rd 
 June, 1853 ; Ord. 40, s. 7.) 
 
 A witness, when cross-examined on his affidavit, has no right to insist 
 that the paragraph in his affidavit on which he is cross-examined should 
 be shown to him before he answers the questions, Guyynne v, Watney, 31 
 L. T. 231. 
 
 269- Forty-eight hours' notice of the cross-examination 
 is to be given to the party on whose behalf such affidavit 
 
ORDERS 269—271. 268 
 
 was filed, or to the party intending to use the same. (3rd 
 June, 1853 ; Ord. 40, s. 9.) 
 
 See note to Order 26 T. 
 
 M MOTION FOR DECREE. 
 
 270. The plaintiff, at any time after the period allowed 
 for answering has expired, but before replication, may 
 move the Court for such order as he thinks himself enti- 
 tled to, in the three following classes of cases : — 
 
 1. Where there is no evidence ; 
 
 %. Where the evidence consists only of documents 
 and such affidavits as are necessary to prove 
 their execution or identity, without the neces- 
 sity of any cross-examination ; • 
 
 3. Where infants are concerned, and evidence is 
 necessary only so far as they are concerned, for 
 the purpose of proving facts which are not dis- 
 puted. 
 
 This order is not to apply to cases in which the Court 
 gives leave to serve short notice of motion for decree. 
 (3rd June, 1853; Ord. 16, s. 1 ; 29th June, 1861.) 
 
 On a motion for decree, the plaintiff is asBumed, for the purposes of the 
 motion, to admit all the statements of the answer of which proof ■w;onld 
 he reoeirable at a hearing in term, Wilson v. Oassey, 14 Grant, 80. 
 
 A plaintiff having given notice of motion for a decree, cannot abandon 
 such proceeding and set the cause down for hearing in the usual way ; if 
 he desires to do so, he must apply to the Court for leave, McLcaighlan v. 
 Whitside, 1 Cham. R. 56. 
 
 A declaration of right may be made on a motion for decree, Semasconi 
 ■V. jitkineon, Seton on Decrees, lli; and the Court has power to dismiss 
 the bill, or to dismiss the motion with ■costs and leave the cause to come 
 on for hearing, Thomat v. Bernard, 6 Jur. N. S. 31 ; Warde v. Dickson 
 5 Jur. K. S. 698. 
 
 271. Where it is made to appear to the Court that it 
 
264 ORDERS 271—273. 
 
 will be conducive to the ends of justice to permit a no- 
 tice of motion for decree to be- served before the time for 
 answering has expired, the plaintiff may apply to the 
 Court or a Judge, ex parte, for that purpose, at any time- 
 afterj the bill has been filed, and the Court, if it thinks 
 fit, may order the same accordingly; and when such 
 permission is granted, the Court is to give directions, as 
 to the service of the notice of motion and filing of the 
 affidavits, as it deems expedient. (3rd June, 1853;, 
 Ord. 17.) 
 
 To induce the Court to act under this order some special ground must 
 be shewn, Davidson v. McKillop, 4 Grant, 146. 
 
 272- Upon the hearing of a motion for a decree, the 
 Court may, instead of either granting or refusing the ap- 
 plicaticji, give such directions for the examination of 
 either parties or witnesses, or for the making of further 
 enquiries, or with respect to the further prosecution of 
 the suit, as the circumstances of the case may require, 
 and upon such terms as to costs as it thinks right. (3rd 
 June, 1853 ; Ord. 17.) 
 
 MOTION TO DISMISS. 
 
 273. A defendant may move the Court, upon notice, 
 that the bill may be dismissed with costs for want of 
 prosecution, and the Court may order the same accord- 
 ingly, in the following cases : — 
 
 1 . If the plaintiff, not having obtained an order to 
 enlarge the time, does not obtain and serve an 
 order for leave to amend the bill, or does not 
 file replication, or set down the cause to be 
 heard on bill and answer, or serve notice of 
 motion for a decree, within one month after 
 the answer, or the last of the answers has been- 
 filed; 
 
ORDER 273. 265 
 
 2. If the plaintiff, not having obtained an order to 
 
 enlarge the time, does not amend the bill with- 
 in fourteen days after the date of the order for 
 leave to amend ; 
 
 3. If the plaintiff, not having obtained an order to 
 
 enlarge the time, does not set down the cause 
 to be heard, at the next sittings of the Court at 
 the place where the venue is laid, in case issue 
 has been joined three weeks before the com- 
 mencement of such sittings. (3rd June, 1853 ; 
 Ord, 24, s. 1.) 
 
 In computing the time, the plaintiff is entitled until 12 o'clock at night 
 of the last day, therefore a notice of motion served on that day is prema- 
 ture, and will be discharged with costs, Prcsfon ». Colleit, 20 L. J.Ch. 228 ; 
 and if notice be given too early the defect is not cured by an accidental 
 postponement of the motion, DeGeneve v. Hannam, 1 R. & M. 494. If the 
 defendant be in contempt he cannot move, Anon, 15 Ves. 1Y4. 
 
 The general rule is that each defendant is entitled to make the appli- 
 cation independently and without any reference to the state of the pro- 
 ceeding as between the other defendants and the plaintiff, Lester v. Arch- 
 dale, 9 Beav. 156 ; Earl of Momington u. Smith, 9 Beav. 250 ; Jones v. 
 Morgan, 12 Jur. 388. lu this order the words " last answer " mean, not 
 the answer of the last defendant, but the last answer of the particular 
 defendant moving to dismiss, Dalton v. Hayter, 1 Beav. 585 ; Sprye o. 
 Reynell, 10 Beav. 351. Thus one defendant may move though his co-de- 
 fendants may not have put in their answers, Lester v. Archdale, 9 Beav. 
 156, but the Court will not make the order if the plaintiff can shew that 
 he has used due diligence to get in the answers of the other defendants- 
 Where it appeared that a defendant who was in a position to move to 
 dismiss was aware of the residence of a co-defendant whom the plaintiff 
 could not (though using reasonable diligence, of which the defendant 
 moving was aware,) find to serve with the bill, a motion by such defend, 
 ant to dismiss for want of prosecution was refused with costs, Shaver v. 
 Alison, 1 Cham. K. 203. And it is not enough for the plaintiff to shew 
 that the answers of the other defendants had not been filed, he must also 
 shew that he has used due diligence to have them served, and to get in 
 their answers, Baldwin v. Damer, 1 1 Jur. 123; Stinton v. Taylor, 4 Hare 
 608 ; and see as to delay in prosecuting the suit, Davy v. Davy, 2 Cham. 
 R. 26. 
 
 Where the delay in prosecuting the suit was flagrant, the fact that the 
 defendant had pleaded the Statute of Limitations was held to be no argu- 
 
266 ORDER 273. 
 
 ment against dismissing the bill, bat ratlicr as an argument against tlie 
 plaintiff, MulhoUand v. Brent, 2 Cham. R. 31. 
 
 A defendant who is in a position to move to dismiss, cannot do so if a 
 co-defendant appearing by the same solicitor has not filed his answer, 
 Winihorp v. Murray, 1 Hare, 150 ; and see Rees v. Jacques, 1 Grant, 352 ■ 
 Cotton V. Cameron, 1 Cham. R. 122; Partington v. Bailie, 5 Sim. 667. 
 
 A motion to dismiss pending an order to amend is irregular, Emerson 
 II. Emerson, 12 Jur. 9Y3 ; but not where the order was that in default of 
 amendment the bill should ipso facto stand dismissed, Dobede v. Edwards, 
 1 1 Sim. 454 ; and where a motion to amend having been refused, the 
 plaintiff moved to discharge the order refusing leave to amend, a motioA 
 to dismiss, pending the motion to discharge the order, was held irregu- 
 lar, Cameron v. VanEvery, 1 Cham. R. 217. 
 
 The plaintiff upon being served with notice of motion to dismiss after 
 answer, and before the cause is at issue, should either file a replication 
 and tender to the defendant the costs, or apply specially for leave to 
 amend, Findlay v. Lawrence, 11 Jur. 705 ; or appear upon the motion and 
 ask for such terms as the state of the cause may justify. 
 
 The plaintiff having served an order to produce and the defendant 
 having filed his afSdavit on production, a copy was demanded, and the 
 demand never having been complied with, a motion by the defendant to 
 dismiss for want of prosecution was refused with costs, Proudfoot v. 
 Thompson, 1 Cham, R. 367 ; but see Gitespie v. Gilespie , 2 Cham. R. 267, 
 where it was held that defendant having failed to obey an order to pro- 
 duce was no obstacle to his moving to dismiss. 
 
 The death of one defendant is no bar to a co-defendant moving to 
 dismiss for want of prosecution, Williams v. Page, 24 Beav. 490 ; Hall ». 
 Green, 2 U. C. Jur. 42 ; Rice v. George, 2 Cham. R. 74 ; Kelly v. Macklem: 
 2 Cham. R. 132. 
 
 An order will not be granted to stay proceedings or dismiss the bill 
 in a suit merely because the subject matter of it has gon&, the, plaintiff 
 has a right to proceed to a hearing to shew himself entitled to costs 
 Wallace v. Ford, 1 Cham. R. 282. 
 
 Where the defendant serves a notice of motion to dismiss, but before 
 the return day, the plaintiff takes out on precipe, and serves an order to 
 dismiss his bill, the defendant cannot bring on his motion, but he is enti- 
 tled to tax his costs under the order to dismiss as costs in the cause, 
 Furdy v. Ferris, 1 Cham. R. 303. 
 
 Where the plaintiff files replication before the motion is heard, the only 
 order which the Court will make is that he pay the costs Of the motion, 
 Carry v. Curleviis, 8 Beav. 606 ; and if the plaintiff in addition to reply- 
 ing tenders the costs of preparing and serving the notice of motion, the 
 defendant should accept them, for if he bring on his motion he will be 
 ordered to pay the costs of it, less the amount properly tendered to him, 
 Wright V. Angle, 12 Jur. 34 ; Piper v. Gittens, 11 Sim. 282 ; but see now. 
 Ord. 276. 
 

 ii^ ^'^A^ <-■ -^-^^/^ v^^'^ ^■^'i'^^-c^ ^^'7t-Z?a-^ 
 
 
 

ORDERS 273—274 267 
 
 If liberty to amend be given on special application, after the notice to 
 dismiss is served but before it is heard, the defendant may bring on his 
 motion in respect of the costs, unless the plaintiff has tendered them, 
 FimUay v. Lawrence, 11 Jur. 705. A motion to amend is no answer to a 
 motion to dismiss for want of prosecution, McNab o. Choynne, 1 Grant," 
 127. 
 
 As a general rule the Court will not on a nlotion to dismiss for want 
 of prosecution, enter into the merits to determine whether the bill should 
 be dismissed without costs, but will consider only the conduct of the 
 parties to the cause in respect of its prosecution, Stagg «. Knowles, 3 
 Hare, 241. 
 
 But under special circumstances, where it appeared inequitable that 
 the defendant should either compel the plaintiff to proceed or submit to 
 his bill'being dismissed, the Court has entered into the question, and dis- 
 missed the bill without costs, Pinfold v. Pinfold, 16 Jur. 1081 ; Godday v. 
 Sleigh, 3 W. R. 87 ; Sutton Harbour Co. v. Hitcheus, 15 Beav. 161 ; Wright 
 V. Barlow, 5 DeG. & S. 43 ; and see Berrie v. Macklin, 1 Cham. R. 251. 
 
 After a bill has been dismissed against one of several defendants, it is 
 not necessary to omit from the style of the cause the name of the defend- 
 ant against whom the bill has been dismissed ; the retention of the name 
 is not irregular. Upper Canada Mining Co. v. Attorney-General, 2 Cham. 
 B. 186. 
 
 After an order dismissing a bill for want of prosecution had been 
 granted upon notice, the plaintiff applied to discharge the order, alleging 
 his intention of prosecuting the suit, and that he had not received any 
 personal notice of the motion to dismiss ; the application was granted 
 upon payment of costs, and the terms of paying into Court certain mo- 
 neys claimed to be due to the defendant, Campbell v. Ferris, 1 Cham. R. 
 50; and see Upper Canada Mining Co. v. Attorney-General, 2 Cham. E. 
 207; Kelly v. Macklem, 2 Cham. R. 132. 
 
 The Court refused to entertain a motion to reinstate a bill based on 
 grounds which might have been shewn on resisting the motion to dis- 
 miss. Bank of Montreal v. Wilson, 2 Cham. R. 117. 
 
 274. Where the plaintiff has amended his bill, after 
 answer, a defendant may move the Court upon notice, 
 that the bill may be dismissed with costs, for want of 
 prosecution ; if the plaintiff, not having obtained an or- 
 der to enlarge the time, does not file the replication, or 
 set down the cause to be heard on bill and answer, or 
 serve notice of molion for a decree, within the times fol- 
 lowing : — 
 
 1. Within fourteen days after the amendment of the 
 
268 ORDERS 274—275. 
 
 bill, where no answer has been filed, and the 
 defendant has not obtained or applied for time 
 to answer ; 
 
 2. Within fourteen days after the refusal of an ap- 
 
 plication for further time, in cases where the 
 defendant, desiring to answer, has not put in 
 his answer within seven days after the amend- 
 ment of the bill ; 
 
 3. Within fourteen days after the filing of the an- 
 
 swer, in cases where the defendant has put in 
 an answer to the amendments, unles the plain- 
 tiff, within such fourteen days, has obtained 
 leave to re-amend the bill. (3rd June, 1853 ; 
 Ord. 24, s. 2.) 
 
 275. In every other case, where the plaintiff" is delay- 
 ing the suit unnecessarily, any defendant may move the 
 Court, upon notice, that the bill may be dismissed with 
 costs, for want of prosecution, after the expiration of one 
 month from the time of filing his answer, in case the plain- 
 tiff", not having obtained an order to enlarge the time, does 
 not obtain and serve an order for leave to amend the 
 bill, or does not file the replication, or set down the cause 
 to be heard on bill and answer, or serve notice of motion 
 for a decree, within such month ; and upon the hearing 
 of the motion, the Court is to make such order for the 
 dismissal of the bill, or for the expediting of the suit, or 
 as to costs, as under the circumstances of the case seems 
 just. (3rd June, 1853 ; Ord. 24, s. 3.) 
 
 The fact that a replication has been filed, and that the defendant is 
 therefore in a position to set the cause down for examination and hearing, 
 is no bar to a motion to dismiss for want of prosecution, Spawn v. Nellea, 
 1 Cham. R. 270 ; Rice v. George, 2 Cham. R. 1i. 
 
 If the motion be made by one of several defendants, it is not enough 
 for the plaintiff to shew that he has not got in the answers of the other 
 defendants ; he must also shew that he has used due diligence to have 
 
• ORDERS 275—278. 269 
 
 them served and to get in the answers, or take the bill pro confesso, 
 against them, Sari of Mornington v. Smith, 9 Bear. 251 ; Baldwin v. Da- 
 rner, l\ Jur. 723; Stintonv. Taylor, 4 Hare, 608. 
 
 An injunction does not prevent a defendant from moving to dismiss for 
 ■want of prosecution, Day v. Snee, 3 V. & B. 170 ; Javiesv.Biou, SSwanst. 
 234. The Court may grant the plaintiff further time, but it is usual 
 to do so only on terms as to the future conduct of the suit. An 
 information by the Attorney-General cannot be dismissed for want 
 of prosecution; it is his privilege to proceed in what way he thinks 
 proper; but an information in his name by a relator is subject to 
 be dismissed with costs for want of prosecution, Daniel's Chan. Pr. 20. 
 
 On moving to dismiss, the Registrar's certificate must not merely shew 
 what proceedings have been taken ; it must state that no further pro- 
 ceedings have been had, Thompson v. Buchanan, 3 Grant, 652. 
 
 276. Where a defendant is entitled to give a notice to 
 dismiss, it is not to be sufficient answer to the motion, 
 for the plaintiff, after being served with the notice, to 
 take out and serve an order for amending the bill, or to 
 file a replication, or to undertake to speed the cause ; 
 but it shall be necessary for the plaintiff to shew that he 
 has prosecuted his suit with due diligence, or that under 
 all the circumstances the bill should not be dismissed. 
 (6th Feb. 1865; Ord. 21.) 
 
 Where a defendant had moved to dismiss, and the plaintiff asked for 
 time which was granted, the plaintiff having failed to proceed within the 
 time given, it was held that the defendant could move ex parte for the 
 order to dismiss. Burns v. Ohisholm, 2 Cham. R. 88. o J"iaetie<j Jte^. /i~6. 
 
 277- A notice of motion to set aside any proceeding 
 for irregularity, must specify clearly the irregularity com- 
 plained of. (9th May, 1862.) 
 
 A party complaining of an irregularity must come promptly and move 
 against it. Miller v. Miller ^"Q . C. L. J. 132; the rule in the Court of 
 Chancery is similar to that at law, that a party to a cause who takes a 
 fresh step in the cause after notice of an irregular proceeding on the part 
 of his opponent, thereby waives the irregularity. Manning v. Birely, 2 U. 
 0. L.J.N. S. 331. 
 
 XXI.— RECEIVERS. 
 278. The party prosecuting the order for a Receiver 
 
270 ORDERS 278—383. . 
 
 is to obtain an appointment or a warrant from the Judge 
 or Master, and to serve the same on all the necessary 
 parties, naming in the copy thereof served, the proposed 
 Receiver and his sureties. (3rd Jane, 1853; Ord. 38,, 
 s. 1.) 
 
 273. At the time appointed, the party prosecuting the 
 order is to bring into the Judge's Chambers or the Mas- 
 ter's Office, the recognizance or bond proposed as secu- 
 rity ; the bond or recognizance is to be to the Master. 
 (3rd June, 1853; Ord. 38, s. 1.) 
 
 280- Any other party desirous of proposing another 
 person as Receiver, is to serve notice of his intention so 
 to do upon the other parties, naming in such notice the 
 person proposed by him as Receiver, and his sureties, 
 and is then in like manner to bring into the Judge's 
 Chambers or Master's office the recognizance or bond 
 proposed by him as security. (3rd June, 1853 ; Ord. 
 38, s. 1.) 
 
 281- At the time named in the appointment or war- 
 rant the Judge or Master is, in the presence of the par- 
 ties, or those who attend, to consider of the appointment of 
 the Receiver, and to determine respecting the same ; and 
 to settle and approve of the proposed security. (3rd 
 June, 1853; Ord. 39, s. 1) 
 
 282. The Master is to make no report approying of or 
 appointing the Receiver ; but the Judge or Master is to 
 appoint such Receiver by signing a written appointment 
 to the following effect, viz.: "In Chancery, [style of 
 cause] — I hereby appoint [Receiver's name] Receiver in 
 this cause, [signature of Judge or Master] ;" which ap- 
 pointment is to be signed without any warrant or attend- 
 ance for that purpose. (3rd June, 1853; Ord. 38, s. 1.) 
 
 283. When signed, the appointment is to be filed by 
 
ORDER 283. ^71 
 
 the party who has procured the person named by him as 
 Receiver to be appointed, and is then to have the same 
 effect as the filing of the Master's report appointing a 
 Receiver under the former practice ; but the same is riot 
 to be filed until after the execution and filing of the 
 securities settled and approved by the Judge or Master. 
 (3rd June, 1853 ; Ord. 38, s. 1.) 
 
 A receiver is an indifferent person between the parties, appointed by 
 the Court to receive the rents, issues and profits of lands, or any other 
 thing in question pending the suit, where it does not appear reasonable 
 to the Court that either party should do it ; or where a party is incompe- 
 tent to do so, as in the case of an infant The appointment of a receiver 
 rests in the discretion of the Court, Skip v. Harwood, 3 Atk. 564; Owen v. 
 Soman, 3 Mac. & G. 3T8 ; and when appointed he is treated as the officer 
 and representative of the Court, and is subject to its orders. A receiver, 
 though an officer of the Court, stands in the position of trustee to all in- 
 terested in the estate or fund ; therefore in making the appointment the 
 Court will endeavour to select a person unexceptionable to all parties, 
 not only on the score of fitness aud competency, but also as regards the 
 feelings of friendship or dislike between the person proposed and those 
 with whom he, in the discharge of his duties, will be brought into fre- 
 quent communication, Simpson v. Ottawa and Prescott Rail. Co. 1 Cham. 
 R. 99. 
 
 For cases In which a receiver will be appointed see Berney v. Semell, 1 
 J. & W. 648 ; Owen v. Homan, 3 Mac. & G. 378 ; Silver v. Bishop ofNor- 
 wicli, SSwanst. 112; Smith v. Smith. 10 Hare, App. 71; in suits against 
 executors and trustees, Richards v. Perkins, 3 Y. & C. Ex. 299 ; Brodie v, 
 Barry, 3 Mer. 695 ; Wilson v. Wilson, 2 Keen, 249 ; Pritchard v. Fleet- 
 wood, 1 Mer. 54; Middleton v. Dodswell, 13i'Ve3. 266; but see Lord v. 
 Purchase, 17 Beav. 171 ; in cases of partnership, Const v. Hurris, T. & R. 
 496, 517 ; Ooodman v. Whitcomb, 1 J. iSi W. 589 ; Fairburn v. Pearson, 
 2 Mac. & G. 144 ; Baxter v. West, 28 L. J. Ch. 169 ; Clegg v. Fishwick, 
 1 Mac. & G. 294 ; of a railway, Simpson v. Oltawa and Prescott Rail. Co 
 1 Cham. R. 126. ' 
 
 A receiver may be appointed of the rents and profits of lands, houses, 
 &c , and of all personal estate which is capable of being reduced into pos- 
 session, Watkins v. Brent, 1 M. & C. 97; Richards v. Perkins, 3 Y. & C- 
 Ex. 299 ; Rendall v. Kendall, 1 Hare, 152 ; and in favour of an equitable 
 creditor, of all property against which a legal creditor can obtain execu- 
 tion, Davis V. Duke of Marlborough, 2 Swanst. 132 ; and of whatever 
 property is considered in equity as assets, Blanchard v. Cawthorne, 4 
 Sim. 566. 
 
272 ORDER 283. 
 
 A trustee may in some cases be receiver, if he will act without emolu- 
 ment, Sykes v. Hastings, 11 Tes. 363 ; but no one who is a party to the 
 suit, or s-.licitor, can be receiver with emolument, unless no one else can 
 
 be got to act, Crcirland v. Garland, 2 Ves. 137 ; v. Jolland, 8 Ves . 
 
 72 ; the next friend of an infant cannot be receiver, Stone v, Wishart, 2 
 Madd. 64. 
 
 A receiver is usually prayed for by the bill, but this is not absolutely 
 necessary, Hart v. Tulk, 6 Hare, 611; Rimsboltom v. Preeman, 4 Beav. 
 145 ; Dowling V. Hudson, 14 Beav. 423. 
 
 The application for a receiver is made to the Court upon motion, notice 
 of which must be served, and it is not necessary to wait until the defend- 
 ant's answer is filed, Aberdeen v. Chittt/.Z Y. & 0. Ex. 379; Meadenv 
 Sealey, 3 Hare, 620 ; but the Court will not, before answer, appoint a re- 
 ceiver, unless a strong case is made for it, Woodyatl v. Gresley, 8 Sim. 
 180 ; objections to the bill on the grounds of misjoinder, multifariousness 
 and want of parties, have been held no answer to a motion for a receiver, 
 Evans v. Ooventry, 5 D. M. & G, 911. 
 
 The defendant cannot defeat a motion for a receiver by a general affi- 
 davit that he has a good defence to the suit ; he must specify the defence 
 distinctly, to enable the plaintiff to meet it, and the Court to judge it, 
 Aikins v, Blain, 13 Grant, 646. 
 
 A receiver may be appointed after an interlocutory decree, Hiles v. 
 Moore, 15 Beav. 175; and even where the decree in not interlocutory, 
 Bowman v. Bell, 14 Sim. 392 ; Re Bywater, 1 Jur. N, S, 227. 
 
 Though the application for a receiver must in the first instance be 
 made to the Court, yet if an order appointing one has been made, vacan- 
 cies in the ofBce may be filled up in Chambers, Grote v. Bin^, 9 Hare, 
 App. 50. 
 
 Evidence must be produced before the Master as to the nature and 
 value of the property over which the receiver is to be appointed, in order 
 that the Master may fix the amount for which security is to be given. 
 
 A receiver having been appointed, it is the duty of the party to the 
 record in possession of the property to deliver up possession to him, and 
 if he refuses to do so, an order may be obtained upon motion that he do 
 by a given day deliver up possession to the receiver, Griffith v. Griffith, 2 
 Ves. Sen. 401. Where the property is in the possession of tenants the 
 order usually directs them to attorn and pay their rents in arrear, as 
 well as the growing rents, to the receiver, Simmons v. Ld. Kinnaird, 4 
 Ves. 747. The receiver should apply to the tenants to attorn, andaf any 
 of them refuse, the party obtaining the appointment of the receiver should 
 serve them with a copy of the order granting the receiver and of the cer- 
 tificate of his appointment, and with a notice of motion for an order that 
 they do attorn within four days after service of the order, or stand com- 
 mitted, Reid V. Middleton, T. & R. 455 ; and the Court will order the 
 
ORDER 283. 273 
 
 tenants to pay the costs of this motion, Sobson v. Sherwood, 19 Bear. 
 575; but see Hobhouse v. EolUombe, 2 DeG. & Sm. 208. 
 
 Any attempt to disturb the possession of the receiver, without the' leave 
 of the Court being first obtained, is a contempt on the part of the person 
 making it, Angel v. Smith, 9 Yes. 335 ; Russtll v. East Anglian Bail Co- 
 3 Mac. & 6. 104 ; and this rule extends to cases in which the receiver is 
 appointed without prejudice to the right of persons having prior estates ; 
 and sSe Bank of British North America v. Heaton, 1 Cham. E. 176. If 
 such persons wish to avail themselves of their right, they must apply to 
 the Court either for liberty to bring ejectment, or in the mode now sub- 
 stituted for the old examination pro intereese suo, Bryan v. Cormick, 1 Coxi 
 422; even though their right to possession is clear, ^noTs, 6 Ves. 287' 
 and even although the order appointing the receiver is erroneous, Ames 
 V. Birkenhead Dock Trustees, 20 Beav. 332. 
 
 The receiver's salary is generally fixed upon the passing of his first ac- 
 count, when he is allowed in his discharge a per centage upon his receipts 
 by way of salary for his care and trouble. The usual per centage 
 upon rents and profits of real estate is five per cent, on the gross rental ; 
 but this is the mqximum. He may be entitled to allowances beyond his 
 salary for any extraordinary trouble or expense he has been put to in the 
 performance of his duty. Potts v. Leighton, 15 Ves. 276 ; but the Court 
 will not sanction such allowances, if objected to, unless he has had the 
 previous approbation of the Court for what he has done, Be Ormsby, 1 B 
 & B. 189 ; Malcolm v. O'Callaghan, 3 M. & C. 52 ; Bristow v. Needham, 2 
 Phill. 190 ; and see Simpson v. Ottawa and Prescott Rail. Co. 1 Cham. 
 R. 337. 
 
 After tenants have attorned or paid rents to the receiver, he may dis- 
 train for rent in arrear ; and he may in the case of a tenant from year 
 to year, who has attorned, give notice to determine the tenancy. Doe v. 
 Read, 12 East, 69 ; but he cannot bring ejectment without the sanction 
 of the Court, Wynne v. Ld. Nemburgh, 1 Ves. 164. 
 
 Where a receiver finds it necessary to sue for debts due an estate, an 
 application for permission to do so must be made, supported by affidavits 
 shewing the expediency of such proceedings, Thomas v. Torrance, 1 
 Cham. R. 9. 
 
 It is the duty of a receiver to pass his accounts regularly in the manner 
 prescribed by the order under which he is appointed, and if he does not, 
 he may be deprived of his salary, and charged with interest on the bal- 
 ance in his hands. Ward v. Swift, 8 Hare, 139. 
 
 If a receiver does not bring in his accounts at the proper time, the 
 party desiring them to be brought in may claim a warrant for that pur- 
 pose, and upon default he mave have an attachment against the receiver. 
 When the receiver bring in his accounts, but does not proceed upon them, 
 the party prosecuting the decree takes out a warrant to proceed upon the 
 accounts and serves all necessary parties ; if the receiver does not attend 
 on the return of the warrant to support his accounts, the Master allows 
 
274 . OBDER 283—284. 
 
 all the sums with which he has charged himself, and disallows his pay- 
 ments for want of being vouched, Bertie v. Ld. Abingdon, 8 Beav. 53. 
 
 To enforce payment of the balance reported due, an order should be 
 obtained npon notice, for him to pay the amount within a given time, 
 Davies v. Gracraft, 14 Ves. 143 ; and if the order be not complied with, a 
 writ of _/?. fa. may be issued, and the recognizance or bond put in suit. 
 An order must be obtained for leave to sue upon the bond, and if the 
 sureties are to be proceeded against, notice of motion must be served 
 upon them, Zudgater v. Channell, 15 Sim. 479. 
 
 The sureties for a receiver cannot be discharged at their own request, 
 Orifflth V. Griffith, 2 Tes. Sen. 400; Gordon u.* Calvert, 2 Sim. 253; but 
 this rule will yield to bircumstances, as where underhand practice is 
 proved, and the person secured is shewn to be connected with it, Hamil- 
 ton V, Brewster, 2 Moll. 407. On moving to vacate a receiver's recogni- 
 zance, motion must be given to all parties, Brown v. Perry, 1 Cham. R. 
 253. With respect to the sureties' liability, it extends to all the receiver 
 would be liable to pay, Dawson v. Raynes, 2 Russ. 466. 
 
 Unless a receiver is expressly cjutinued by the decree, an appointment 
 previously made will be superseded by the decree, Gibson v. Ld. Mont- 
 fort, 1 Ves. Sen. 485. 
 
 Where a surety of a receiver dies pending the suit, the receiver may 
 obtain, ex parte, an order referring it to the Master to approve of a new 
 one, Balduiin v. Graw/ord, 1 Cham. R. 264. 
 
 Where a receiver made an investment unauthorized by the Court, by 
 which a profit was made, the amount realized fras directed to be allowed 
 to the principal, Baldwin v. Crawford, 2 Cham. R. 9, 
 
 XXII.— INJUNCTIONS. 
 
 284. No injunction to stay proceedings at law is to be 
 granted, for default of an answer to the bill ; but such 
 injunction may be granted upon an interlocutory appli- 
 cation, in like manner as other special injunctions are 
 granted. (3rd June, 1853; Ord. 27, s. 1.) 
 
 Under this section the plaintiff is to have an injunction, not as of 
 course, but only on an affidavit of merits, Senior v. Pritchard, 16 Beav. 
 473 ; Magnay v. Mines Boyal Co., 3 Drew. 130 ; and to entitle the plaintiff 
 to the injunction, he must himself depose to the facts within his own 
 knowledge, and that he believes the other statements on which he relies 
 to be true, Moilett v. Enequist, 25 Beav. 609 ; but where the plaintiff is 
 abroad, the affidavit may be made by his agent, Whitelegg v. W/iitelegg, 
 1 Bro. 0. C. 57 ; Lord Byron v. Johnston, 2 Mer. 29 Where plaintiff had 
 replied at law to equitable pleas, injunction was refused, Farebrother v - 
 
ORDER 284. 275 
 
 Welchman, 3 Drew. 122 ; and wliere a defendant in an action at law filed 
 a bill to restrain proceedings, alleging as grounds for relief, facts which, 
 if they had been properly pleaded, would have afforded a good defence 
 at law, the Court, without enquiring as to the merits of the case, dis- 
 missed the bill, Morrison, v. McLean, 1 Grant, 167. 
 
 A motion for injunction will be refused where the allegations and prayer 
 of the bill have been framed for relief on other grounds than those upon 
 which the application is founded, although the affidavits in support of the 
 motion, contain sufficient to warrant the Court in granting an injunction, 
 Ely V. Wilson, 1 Grant, 103, 
 
 A motion for injuction held abandoned by amending the bill pending 
 the motion, Monypenny v. Bering, 1 W. R. 99 ; Westacolt v. Cockerline, 
 13 Grant, 159 ; McDonell v. Street, 13 Grant, 168 ; but see Hawes v. Bam~ 
 ford, 9 Sim. 653. 
 
 If a plaintiff obtains an order to amend after obtaining an injunction, 
 such order will he prima facie without prejudice to the injunction. Ken. 
 nedy v. Lewis, 14 Jur. 166; Evans v. Root, 1 Cham. R. 357 ; and the order 
 need not contain the words "without prejudice," in order to save the 
 injunction, nor will the insertion of these words preclude the defendant 
 from moving to dissolve the injunction in a proper case, e. g. if the plain- 
 tiff by amendment has changed the record, Attorney-General v. Marsh, 
 16 Sim. 572 ; or broken the terms of an agreement, Clarke v. Clarke, 13 
 W. R. 133 ; and see Harding v. Tingey, 12 W. R. 703. 
 
 Amendments of a material character not allowed without prejudice to 
 a pending motion for injunction, Davy v. Davy, 2 Cham, R. 81. 
 
 Where motion for an injunction is refused, the proper course is not to 
 give the costs, as, if the suit fdils, the plaintiff must pay the costs, and 
 if it succeeds, the order at the hearing provides for the payment of them, 
 Carruthersv. Armour, 7 Grant, 34, 
 
 In a proper case, upon a petition by the defendant, the Court granted 
 an injunction against the plaintiff, Bartels v. Benson, 9 Grant, 486 ; but 
 the answer must pray an injunction, Brandon v. Elliott, 14 6r. 109; in 
 special cases a defendant may restrain a co-defenant, Edgecumhe v. Car- 
 penter, 1 Beav. 171; Kingham, v. Maisey, 2 Sim. 41. 
 
 Where in a foreclosure suit an injunction has been granted to restrain 
 the cutting of timber, the Registrar cannot issue a decree under order 
 435 or 436, continuing the injunction. King v. Freeman, 1 Ghana. E. 850. 
 After a decree of foreclosure, if the mortgagor commits waste, the Court 
 will enjoin him, though an injunction may not have been prayed for in the- 
 bill, Cawthra v. Maguire, 5 M. L. J. 142. 
 
 In cases of immediate urgency an ex parte injunction, or an interim 
 restraining order may be obtained ; but such an application must be 
 made without laches, delay in asking for injunctions being regarded by 
 the Court with moie than ordinary jealousy, Wintle o. Bristol Mail. Co., 
 10 W. R. 210. 
 
276 ORDER 284. 
 
 Generally a plaintiff obtaining an ex parte injunction or interim order, 
 is required to give an undertaking as to damages, jldamon v. Wilson, 10 
 L. T. N. S. 24 ; Chappell v. Davidson, 8 D. M. <fe G. 1 1 and see Wakefield 
 V. Duke of Buccleugh, 13 W. E. 856. 
 
 The plaintiff being abroad his counsel entered into the undertaking, 
 Hamilton v. Board, 1 N. R. 319 ; and a company being plaintiff, some re- 
 sponsible person was required to enter into the undertaking, ^nglo-Danu- 
 brian Co. v. Rogerson, 10 Jur. N. S. 87. 
 
 The dismissal of the bill does not affect the ultimate decision as to the 
 damages to be paid under an undertaking given when an interim injunc- 
 tion was obtained, Newby v. Harrison, S D. F. & J. 23T ; overruling S. 0. 
 1 J. & H. 678. But where a plaintiff had obtained |in ex parte injunction 
 on the usual undertaking to be answerable in damages, and after the 
 injunction had been dissolved, the defendant moved to dismiss the bill for 
 want of prosecution, and for an enquiry as to damages, the Court made 
 an order to file replication, or else that the bill should be dismissed, but 
 issued in that state of the proceedings to direct an enquiry as to damages, 
 Souihvoood v. Taylor, 28 Beav. 618. 
 
 The undertaking does not extend to damages which result not from the 
 injunction but collaterally from the suit, Bingley v. Marshall, 11 W- 
 R. 1018. 
 
 A plaintiff cannot obtain an injunction pending a demurrer, Cousins v. 
 Smith, 13 Yes, 164 ; or after a bill has been found to contain scandalous 
 matter, Davenport v. Davenport, 6 Had. 251. 
 
 A successful demurrer to the whole bill puts an end to an injunction 
 previously obtained, even though leave be given to amend, Schneider, 
 V. Lizardi, 9 Beav. 461, 
 
 A plaintiff's right to an injunction at the hearing, is not necessarily 
 prejudiced by his omitting to apply for it at an earlier stage of the cause, 
 Davey v. Marshall, 1 Dr. & Sm. 557 ; but see Belts v. Clifford, 1 J. (b H. 74. 
 
 The abatement of a suit does not of itself dissolve an injunction, Hill 
 V. Hoare, 2 Cox. 60 ; Stuart v. Jnsell, 1 Cox. 411. 
 
 If an injunction is improperly obtained, the party restrained should 
 wove to dissolve it, he cannot treat it as a nullity. Woodward v. Earl of 
 Lincoln, S Swanst, 626 ; Notter v. Smith, 1 Cham. R. 21. 
 
 An injunction operates from the date of the order, Rattray v. Bishop, 
 3 Ifad. 220 ; and in pressing cases the plaintiff may, before the order hag 
 been drawn up, give the defendant notice of the fact that it has been 
 obtained, and if there is no delay in getting the order drawn up, sealed, 
 and served, the defendant may be committed ftjr a breach after such 
 notice, Vansandau v. Rose, 2 J. <fe W. 264 ; Kimpton v. Eve, 2 V. & B. 349 ; 
 Lewes v, Morgan, 8 Price, 518. 
 
 The copy of the injunction must be personally served, Etlerton v. 
 Think, IJ. & W. 376. 
 
ORDERS 284—286. , 277 
 
 After a breach the plaintiff may move either that the defendant be at 
 once committed, or that he may be committed unless he shew cause to 
 the contrary. The service of the notice of motion to commit, or of the 
 order nisi must be personal, Anger'itein v. Hunt, 6 Yes. 488 ; Durant v. 
 Moore, 2 R & M. 33 ; unless it be satifactorily made out that the defendant 
 is purposely keeping out of the way, in which case substituted service 
 may be permitted, Pulteneyv. Shelton, 5 Ves. 147. 
 
 The order for committal must state the affidavit of service of the in- 
 junction, and either the afiBd^vit of the service of the notice of motion 
 for committal, or the appearance of counsel on the motion, Stephens v. 
 Workman, 1 N. R. 563. 
 
 The affidavit of seryice need not state that the writ was under the seal 
 of the Court, Farwell v. Wallbridge, 3 Grant, 62-8. 
 
 285. On a motion to obtain or dissolve a special in- 
 junction, affidavits may be used either to support or con- 
 tradict the answer. (3rd June, 1853 ; Ord. 27, s. 2.) 
 
 On a motion for au injunction against one defendant, the cross-ezamiQ> 
 ation of another defendant on his answer, was held inadmissable in reply 
 to the affidavits filed in answer to the motion, where the defendant agains t 
 whom the plaintiff moved had no notice of the cross-examination, or of 
 the plaintiff's intention to read the depositions, Curtis v. Dales, 12 Gr • 
 244. 
 
 On moving for an injunction ex parte, the affidavits, on which the 
 application is founded, mast set forth all the facts and circumstances 
 material for the Court to know, or the injunction will be dissolved : even 
 although the party moving did not consider the circumstance material, 
 McMaster v. Callaway, 6 Grant, 511 • Ley v. McDonald, 2 Grant, 398 ; 
 Hilton V. Sari Granville, 4 Beav. 130 ; or at any rate the plaintiff will 
 have to pay the costs, Fuller v. Taylor, 11 W. R. 532 ; Holdm v. Waterloo, 
 15 W. R. 139 ; and see Fitch v. Rotchpart, 1 8 L. J. Oh. 458. 
 
 XXIII.— STOP ORDERS. 
 
 286. Where any stock, debentures, funds, securities, 
 or moneys, are standing in Court to the credit of any 
 cause, or to the account of any class of persons, or are 
 invested in the name of the Registrar, or other officer of 
 the Court, and an order is made to prevent the transfer 
 or payment of such stock, debentures, funds, securities, 
 or moneys, or any part thereof, without notice to the as- 
 signee of any person entitled in expectancy or otherwise 
 
278 ORDERS 286—287. 
 
 to any share or portion of such stock, debentures, funds, 
 securities, or moneys, the person by whom any such order 
 shall be obtained, or the share of such stock, debentures, 
 funds, securities, or moneys affected by such order, shall 
 be liable at the discretion of the Court or a Judge, as the 
 case may be, to pay any costs charges and expenses, 
 which by reason of any such order having been obtained, 
 shall be occasioned to any party to the cause or matter, 
 or any person interested in any such stock, debentures, 
 jfunds, securities, or moneys. {Eng. Con. Ord. 26, r. 1.) 
 
 In cases where the assignor and assignee concur a stop order mnst be 
 taken at Chambers, Edmondson v. Harrison, 1 W. R. 140 ; and see Me 
 -Miller, 6 W. R. 238 ; iJe Nowell, 11 W. R. 896. 
 
 See generally as to the effect of a stop order, Tidd v. Lister, 15 W. R. 
 SY6 ; and as to its giving no priority over other charges, Warbartonv. 
 Hill, Ka.j ilO ; Greening v. Beckford, 5 Sim. 195; Swayne v. Suiayne, 11 
 Beav. 463 ; Htdkes v. Davy, 10 Sim. 41. By granting a stop order the 
 Court decides nothing as to the rights of the parties, Lucas v. Peacock, 9 
 Beav. 177 ; Hawkesley v. Gowan, 12 W. R. 1100. 
 
 The Court has no jurisdiction to grant a stop order on a fund in Court, 
 at the instance of a judgment creditor of the party entitled to the fund, 
 Lee V. Bell, 2 Cham. R, 114 ;. Purkiss v. Morrison, 2 Cham. 117. 
 
 A prospective stop order was granted by '^. C. Kindersley, in Re Duke 
 oj Cleveland's Harte Estates, 17th January, 1862, restraining the funds 
 hereafter to be paid into a particular account ; but where there was no 
 certainty that any fund would be brought into Court, a prospective order 
 would be referred, Wellesley v. Momington, 11 W. R. 17. 
 
 The order for payment out of a fund in Court of the claim of a person 
 who has obtained a stop order, should include the costs of obtaining a 
 stop order, otherwise they will be disallowed, Waddilove v. Taylor, 6 
 Ha. 307. 
 
 See further as to the costs of a stop order^ and the appearance of per- 
 sons who have obtained (ni^,Edwardsv. Grouc, 29 L. J. Ch. 839; Grimsby 
 V. Webster, 8 W. R. 726. 
 
 287. A person applying lor such order, shall not be 
 required to serve notice thereof upon the parties to the 
 cause, or upon the persons interested in such parts of the 
 stock, debentures, funds, securities or moneys, as are 
 not sought to be affected by the order. {Eng. Con. Ord. 
 26. r. 2.^ 
 
ORDERS 287—288. 279 
 
 This order does not dispense with the necessity of serving the assignor 
 though a party to the cause, Parsons v. Groom,!, 4 Beav. 621 ; but where 
 not only the assignor but the other parties to the cause were served, the 
 petitioner was ordered to pay the costs of the latter, Glazhrook v. 
 Gillatt, 9 Beav. 611. 
 
 As to the evidence necessary on an application under the order, see 
 Wood V. Vincent, i Beav. 419 ; Quarman v. Williams, 5 Beav. 133. 
 
 XXIV.— PROCESS. 
 
 288. If a party who is ordered, otherwise than by an 
 order of course, to do any act, other than to pay money, 
 in a limited time, refuses or neglects to obey the order 
 according to the exigency thereof, the party prosecuting 
 the order shall, at the expiration of the time limited, upon 
 filing [with the Registrar] an affidavit of the service of the 
 order, and of the non-performance thereof, be entitled, 
 upon precipe, to a writ or writs of attachment against 
 the disobedient party. (3rd June, 1853 ; Ord. 46, s. 2. 
 
 The words, " with the Registrar," are struck out by order 550. 
 
 This order differs from that of 3rd June, 1853, by being limited to dis- 
 obedience of special orders of the Court, and in being inapplicable to 
 cases where the act ordered to be done is payment of money. 
 
 A warrant to the Sheriff to commit a party is not irregular, though no 
 return day is mentioned in it, Prentiss v. Srennan, 1 Grant, 497. 
 
 On a motion to commit for breach of an injunction, it is not necessary 
 for the affidavit to state that the writ was under the seal of the Court 
 Farvnell v. Wallbridge, 3 Grant, 638. 
 
 A married woman, defendant, living with her husband, was ordered to 
 bring certain accounts, as administratrix, into the Master's office, and 
 having disobeyed the order, an application to commit her for contempt 
 was refused, the general rule being that the husband must answer for the 
 wife's default, unless he shews some ground of exemption, Maughan v. 
 Wilkes, 1 Cham. E. 91. 
 
 An attachment to commit a man for contempt will not be granted 
 merely for non-payment of the costs of the contempt, Dickson v. Cook, 1 
 Cham. E. 210 ; but where a party in contempt to an attachment for not 
 bringing accounts into the Master's office, filed the accounts, but did not 
 pay the costs of the proceedings to put him in contempt, a motion to take 
 the account off the files that the process of contempt might be proceeded 
 with was granted, Oorbett v. Meyers, \ Cham. R. 26. 
 
 The Court will not detain a person in gaol merely for the non-payment 
 of money, but in order to pnnish any one who has been guilty of a con- 
 
280 ORDERS 288—290. 
 
 tempt it may imprison him for a stated period, allowing him to be dis- 
 charged if he pays the costs of the contempt before the expiration of such 
 period, Harris v. Meyers, 1 Cham. R, 229. 
 
 It is improper to have recourse to an attachment when the object sought 
 can be attained without such process, Mason v. Seeney, 2 Cham. R. 220 . 
 
 A party in contempt cannot take any step in the cause until he has 
 cleared his contempt, but he may move to discharge an order made against 
 him adversely, Futvoye v. Eennard, 2 Giff. 110 ; or shew that subsequent 
 proceedings are irregular, King v. Bryant, 3 M. & 0. 191; Morrison u 
 Morrison, 4 Hare, 590. 
 
 As to the Sherifif's liability for an escape, see Harkin v. Rabidon, 1 
 Cham. B. 133. 
 
 289. In case the party shall be taken or detained in 
 custody under the writ of attachment, without obeying 
 the order, then upon the Sheriff's return that the party 
 has been so taken or detained, the party prosecuting the 
 order shall be entitled, upon precipe, to a commission of 
 sequestration against the estate and effects of the disobe- 
 dient party. (Srd June, 1853 ; Ord. 46, s. 2.) 
 
 Property seized under a writ of sequestration cannot be sold without 
 an order for that purpose previously obtained upon motion, Forbet v. Con- 
 nelly, 1 Cham. R. 6. Where property seized under a sequestration is 
 claimed by a third party, the Court may direct an enquiry as to the owner- 
 ship, Re Brennan, 2 Grant, 274. 
 
 The tenant of a party against whom the sequestration has issued, will 
 be ordered to pay to the Commissioner rent shewn to be due, and also to 
 attorn and pay the accruing rents, Jackson v. Jackson, 1 Cham. R. 115. 
 CTAs to when choses in action are bound by a sequestration, see McDow- 
 ell V. McDowell, 1 Cham. R. 140. 
 
 290. If an attachment cannot be executed against the 
 party refusing or neglecting to obey the order, by reason 
 of his being out of the jurisdiction of the Court, or of his 
 having absconded, or that with due diligence he cannot 
 be found, and the Court is satisfied by affidavit that such 
 is the case, the party prosecuting the order shall be entitled 
 to an order for a commission of sequestration against the 
 estate and effects of the disobedient party ; and it shall 
 not be necessary for that purpose to sue out an attach- 
 ment. (Srd June, 1853 ; Ord. 46, s. 3.) 
 

0^^^ A/tr '^'"--^ A.--ty u^^^^.^^ " ^ -.-ii-^ A^>«t^ 
 
ORDERS 291—295. 281 
 
 291. If a party who is ordered to pay money, neglects 
 to obey the order according to the exigency thereof, the 
 party prosecuting the order, may, at the expiration of 
 the time limited for the performance thereof, apply in 
 Chambers for a writ of sequestration against the default- 
 ing party, and upon proof of due service of a notice of the 
 motion, unless the Court thinks proper to dispense with 
 such service, and upon proof by affidavit of such other 
 matters, if any, as the Court requires, the Court may 
 order a writ of sequestration to issue . 
 
 292. Commissions of sequestration are to be directed 
 to the Sheriff, unless otherwise ordered. (3rd June, 1853 '■> 
 Ord. 46, s. 4.)ik^///<iu.,-^ ^ s^^ ^t.,,.^^^ /^ A-'f^ 
 
 293- Every order requiring a party to do an act, other 
 than the payment of money, shall state the time after ser- 
 vice of the order within which the act is to be done ; and 
 upon the copy of the order served, there shall be endorsed 
 a memorandum in the words, or to the effect set forth in 
 schedule N.^ (3rd June, 1853 ; Ord. 46, s. 6.) 
 
 294. It shall not be necessary to issue a writ of attach- 
 ment or injunction upon an order for delivery of possess- 
 ion, but the party prosecuting the order, upon filing with 
 the Clerk of Records and Writs an affidavit of service of 
 the same, and of non-compliance therewith, shall be en- 
 titled without further order to a writ of assistance. (3rd 
 June, 1853 ; Ord. 46, s. 8.) 
 
 The affidavit in support of an application for a writ of assistance need 
 not sliew an existing non-compliance, but only non-compliance with the 
 tenns and order to be enforced, Webtter v. laylor, 18 Jur. 869. 
 
 As to delivery of possession in mortgage cases, see Ord. 464. 
 
 295. In lieu of an order nisi, notice is to be given of 
 the motion for an order absolute. (6th Feb. 1865 ; Ord, 
 
 31.) 
 
282 ORDERS 295—298. 
 
 A notice of motion for an order absolute mnst be served fourteen days, 
 Kelly V. Smith, 1 Cham. R. 364 ; Chray v. Hatch, % Cham. R. 12 ; it is not 
 necessary to state in the notice of motion that a certificate of an officer of 
 the Court will be read ; such certificate can be read though no notice is 
 given, Malloehv. Plunkett, 1 Cham. R. 381 ; the certificate should bear 
 the latest possible date, Somervilley. Joyce, 1 Cham. R. 202. 
 
 Where the order is complied with after service of the notice of motion 
 to commit, and before the motion comes on, the order to commit will not 
 be granted, but the party will be required to pay the costs of the motion 
 within twenty-four hours after their amount bus been settled, Serrie v. 
 Moore, 1 Cham. R. 107; Mattock v. Plunkett, 1 Cham. R. 381. 
 
 The Court will not grant an order nisi against a person not a party to 
 the suit, Harris v. Meyeri, 1 Cham. R. 262. 
 
 296. Where the application for such order is made, by 
 reason of default in production of books and papers in the 
 Master's office, or in the office of the Clerk of Records 
 and Writs, or in carrying in accounts, 'service of the notice 
 of motion upon the solicitor of the party required to obey 
 the same, is to be sufficient service. 
 
 Before this order, service on the solicitor of a notice of motion to com- 
 mit for non-production in the Master's oflSce was good service, Qourlay v. 
 Itiddell, 2 Cham. R. 168 ; but notice of motion to commit for non-produc- 
 tion in the Registrar's office required personal service, Dickson v. Dicksoni 
 I Cham. R. 366. 
 
 297. Every person, not being a party in a cause, who 
 has obtained an order, or in whose favor an order has been 
 made, shall be entitled to enforce obedience to such order 
 by the same process as if he were a party to the cause ; 
 and every person not being a party in a cause, against 
 whom obedience to an order of the Court may be enforced, 
 shall be liable to the same process for enforcing obedience 
 to the order, as if he were a party to the cause. (3rd 
 June, 1853 ; Ord. 46, s. 10.) 
 
 298. On the taxation of costs, no fees are to be allowed 
 for the mileage or service of office-copies of bills, orders, 
 subpoenas, warrants, notices of motion, or other proceed- 
 ings,' unless served, and sworn in the affidavit of service 
 
< CCtXm^l.<_ 
 
 
ORDERS 298—302. 283 
 
 to have been served, by the Sheriff, his Deputy or Bailiff 
 being a literate person. 
 
 299. Upon the delivery of an office-copy of a bill, or- 
 der, subpoena, warrant, notice of motion, or other pro- 
 ceeding, at the office of any Sheriff, to be served by him, 
 he, his Deputy, or Clerk is to note the time it was so de 
 livered. 
 
 300. In case the office-copy of the bill, order, subpoena, 
 warrant, notice of motion, or other proceeding, is not 
 fully and completely served within fifteen days after such 
 delivery, the plaintiff or defendant, his solicitor or agent, 
 is to be entitled to receive the same back,and the Sheriff, 
 Deputy Sheriff, or Clerk shall therewith return a note of 
 the time when the same was received, and the time of 
 re-delivery, and on the taxation of costs, the costs of the 
 mileage and service of the office-copy of the bill, order, 
 subpoena, warrant, notice of motion, or other proceeding 
 by any literate person, are to be allowed, as if the same 
 had been served by the Sheriff or his officer. 
 
 301. If the Sheriff neglects or refuses to return any such 
 office-copy of a bill, order, subpoena, warrant, notice of 
 motion, or other proceeding, after the expiration of the 
 said fifteen days, the plaintiff or defendant may issue or 
 prepare another office-copy of the bill, order, subpoena, 
 warrant, notice of motion, or other proceeding, and the 
 costs thereof and occasioned by the default of the said 
 Sheriff, may be charged against, and recovered from the 
 Sheriff by the plaintiff or defendant, or his solicitor ; and 
 the Sheriff in whose office any such proceeding is received 
 ior service, is to receive it subject to this liability. 
 
 302. No mileage shall be taxed or allowed for the ser- 
 vice of any office-copy of a bill, order, subpoena, warrant, 
 notice of motion, or other proceeding, without an affida- 
 
284 ORDERS 302—304. 
 
 vit being produced to the Taxing Officer, stating the sum 
 actually disbursed and paid for such mileage, and the 
 name of the party to whom such payment has been made. 
 
 See as to Sheriff's poundage, Winters v. Kingston Pirmanent Building 
 Society, 1 Cham. R. 276 ; and as to Sheriff's liability for an escape, Har- 
 hin V. Babidon, 1 Cham. R. 133. 
 
 303. The preceding orders are not to apply to services 
 effected out of the jurisdiction, nor to services effected by 
 a solicitor upon the opposite solicitor. 
 
 XXV.— COSTS. 
 
 304. Where the Court deems it proper to award costs 
 to either party, it may by the order direct payment of a 
 sum in gross in lieu of taxed costs, and direct by and to 
 whom such sum in gross is to be paid. And the same 
 may likewise be done upon such proceedings before the 
 Court or in Chambers as have heretofore been matters of 
 reference to the Master. (3rd June, 1853 ; Ord. 45, s. 1.) 
 
 The power of the Court to award a gross sum In lieu of costs by the 
 order of June, 1853, limited to interlocutory applications. 
 
 The Court does not deal with the question of costs, where it does not 
 adjudicate upon the subject matter of the suit, Nicholls v, Elford, 5 Jur. 
 N. S. 264. 
 
 Where fraud is charged in the bill which the plaintiff fails to establish 
 he will not be allowed costs, though he succeeds in the suit, Hughson v. 
 Davis, 4 Grant, 588 ; Engerson v. Smith, 9 Grant, 16 ; and see Blest v 
 Brown, 10 W. R. 569. In Neal v. Winter, 9 Grant, 261, the Court ordered 
 the plaintiff to pay costs although he succeeded in the suit 
 
 As to costs of the Attorney-General and the Crown, see Attorney- Gen- 
 eral V. Earl of Ashbumham, 1 S. & S. 394 ; Perkins v. Bradley, 1 Hare, 
 219 I Kane v. Reynolds, 24 L. J. Ch. 321 ; Attorney- General v. Corporation 
 ofljyndon, 2 Mac. & G. 247 ; United Statu v. Denison, 2 Cham. R. 263. 
 
 Where no direction is given as to the costs of a motion ; (1) The party 
 making a successful motion is entitled to his costs, as costs in the cause ; 
 but the party opposing it is not entitled to his costs, as costs in the cause- 
 (2) The party making a motion which fails, is not entitled to his costs, 
 as costs in the cause ; but the party opposing it is entitled to his costs. 
 
ORDERS 3a4 — 306. 285 
 
 as costs in the cause. (3) Where a motion is made by one party, and not 
 opposed by the other, the costs of both parties are costs in the cause, 
 Mem. 1 S. & S. 357. 
 
 If the costs of the motion are reserved until the hearing, care should be 
 taken to ask for them then or they will not be allowed in taxation, 
 Gardner v. Marshall, 14 Sim. 588 | Jones v. Batten, 10 Hare, App. 11. 
 
 305. It shall also be competent for a Local Master, 
 upon disposing of applications made to him under Order 
 36, in like manner to direct payment of a sum in gross 
 in lieu of taxed costs, and to direct by and to whom such 
 sum in gross is to be paid. (3rd June, 1853 ; Ord. 45. 
 s. 1.) 
 
 The applications which a Local Master may dispose of under Order 36, 
 are, — To appoint guardians ad litem for infants, — For time to answer or 
 demur, — For leare to amend before replication, — To postpone the exam- 
 ination of witnesses, or to allow further time for the production of evi- 
 dence, — For security for costs. 
 
 306. If upon the taxation of costs it should appear to 
 the Master that any proceedings have been taken unne- 
 cessarily, and which were not calculated to advance the 
 interests of the party on whose behalf the same were taken, 
 it shall be the duty of the Master to disallow the costs of 
 such proceedings, as well on the taxation of costs between 
 solicitor and client, and as between solicitor and client, 
 as on a taxation between party and party, unless the Mas- 
 ter shall be of opinion that such proceedings were taken 
 by the solicitor because they were in his judgment, rea- 
 sonably exercised, conducive to the interest of his client. 
 It shall not be the duty of the Master, on a taxation of 
 costs between a solicitor and his client, to disallow to the 
 solicitor his costs of such proceedings where it is made 
 to appear that such proceedings were taken by the desire 
 of the client, after being informed by his solicitor that the 
 same were unnecessary, and not calculated to advance 
 the interests of the client ; but the costs of such proceed- 
 ings are not to be allowed in any case where, according 
 
286 oRDEis 306—309. 
 
 to the present practice and rules of taxation, the same 
 would not be allowed. (3rd June, 1853 ; Ord, 45, s. 2.) 
 
 As to the powers of the Taxing Officer generally, see Alaop v . Lord 
 Oxford, 1 M. & K. 564; Be Congrive, 4 Beav. 87; Re Hubbard, 23'Beav 
 481; Turner v. Turner, 1 W. R. 573. 
 
 307. Where costs are to be taxed as between party 
 and party, the Master may allow to the party entitled to 
 receive such costs, the like costs as are taxable where 
 costs are directed to be taxed as between solicitor and 
 client, in respect of the following matters : 
 
 1 . Advising with counsel on the pleadings, evidence, 
 
 and other proceedings in the cause ; 
 
 2. Procuring counsel to settle and sign such plead- 
 
 ings and petitions as may appear to have been 
 proper to be settled by counsel ; 
 
 3. Procuring and attending consultations of coun- 
 
 sel; 
 
 4. The amendment of bills ; 
 
 5. On proceedings in the Master's office ; 
 
 6. Supplying counsel with copies of or extracts from 
 
 necessary documents. (3rd June, 1853; Ord. 
 45, s. 3.) 
 
 308. In allowing such costs, the Master is not to allow 
 the party any costs which do not appear to have been 
 necessary or proper for the attainment of justice, or for 
 the defending his rights; or which appear to have been 
 incurred through over-caution, negligence or mistake, or 
 merely at the desire of the party. (3rd June, 1853 ; 
 Ord. 45, s. 3.) 
 
 309. The fees and disbursements set forth in the Tariff 
 

ORDERS 309—312. 287 
 
 annexed to these Orders, may be charged in respect of 
 the services therein enumerated. 
 
 310. No bill of costs where the amount claimed ex- 
 ceeds thirty dollars is hereafter to be taxed by the Ac- 
 countant, Registrar, or Judges' Secretary, but every bill 
 exceeding that sum is to be taxed by the Taxing Officer, 
 notwithstanding anything to the contrary contained in 
 the order. (1st April, 1867 ; Ord. 16.) 
 
 311. Every Local Master is forthwith, after taxing a 
 bill of costs, to transmit the same by mail to Toronto, 
 addressed " To the Taxing Officer of the Court of Chan- 
 cery, Toronto," and he is to allow in the bill the postage 
 for the transmission and return of the bill, and shall pre- 
 pay the same ; and is to allow in the bill the sum of one 
 dollar as a fee for the revision of the bill by th'e Taxing 
 Officer at Toronto, and a law stamp for that sum, with 
 postage stamps for the postage, is to be paid at the time 
 of taxation by the party procuring the bill to be taxed ; 
 and the Local Master is to transmit with the bill to the 
 Taxing Officer at Toronto, the law stamp, and the neces- 
 sary stamps for postage on the return of the bill to the 
 Local Master. (6th Feb. 1865; Ord. 37.) 
 
 '3/Z. ■ The Taxing Officer at Toronto, upon receiving 
 the bill of costs, is to examine the same, and to mark in 
 the margin such sums (if any) as may appear to him to 
 have been improperly allowed, or to be questionable ; 
 and he is to revise the taxation, either ex ■parte, or upon 
 notice to the Toronto agent (if any) of the solicitor whose 
 bill is in question, as in his discretion he may see fit ; 
 but notifying such agent (if any) in all cases where the 
 taxation is not clearly erroneous, or where the amount in 
 question is so large as in the judgment of the Taxing Of- 
 ficer, to make such notification proper. Such nolific,a- 
 tion may be by appointment mailed to the address of the 
 
288 ORDERS 312—315. 
 
 agent (if any). If upon the revision the sums disallowed 
 shall amount to one-twentieth of the amount allowed up- 
 on taxation, the Taxing Officer is to add to the amount 
 taxed off, the amount of postages, and the sum of one 
 dollar aforesaid, and is thereupon to re-transmit the bill 
 so revised to the Local Master. (6th Feb. 1865; Ord. 
 38.) 
 
 313. No sum is to be inserted in the report of a Local 
 Master as taxed and allowed for costs, until such revision 
 by the Taxing Officer ; but in a case of urgency, a writ 
 of execution may issue to leyy debt or costs, or both, up- 
 on the order of a Judge, subject to the future revision by 
 the Taxing Officer. (6th Feb. 1865 ; Ord. 39.) 
 
 A Local Master in making his report, is not at liberty to date it until 
 the costs taxed by himself hare been finally revised, and settled by the 
 Taxing officer, Waddell v. McColl, U Grant, 211', 
 
 314. Where a guardian ad litem is appointed on the 
 application of the plaintiff, to an infant, or to a person of 
 unsound mind, not so found by inquisition, no costs are 
 to be taxed to the guardian; but in lieu thereof, the 
 plaintiff is to pay to the guardian a fee of fifteen dollars, 
 and his actual disbursements out of pocket ; and the 
 plaintiff in case he is allowed the costs of the suit, is to 
 add to his own bill of costs the amount he so pays. But 
 the Court may, in special cases, direct the allowance of 
 taxed costs to a guardian od litem. (1st April, 1867; 
 Ord. 18.) 
 
 315. Where two or more defendants defend by different 
 solicitors under circumstances that, by the law of the 
 Court, entitle them to but one set of costs, the Taxing 
 Officer, without any special order from the Court, is to 
 allow but one set of costs ; and if two or more defendants 
 defending by the same solicitor separate unnecessarily in 
 their answers, or otherwise, the Taxing Officer is, with- 
 
ORDERS 316—318. 289 
 
 out any special order of the Court, to allow but one an- 
 swer and set of costs. (1st April, 1867; Ord. 17.) 
 
 316- Where costs are awarded to be paid, it shall be 
 competent to the Taxing Officer to tax the same, without 
 an express reference to him for that . purpose. (29th 
 June, 1861.) 
 
 317. Where in a suit for administration, or partition, 
 or partition and sale, the Master finds that the costs 
 amount to twenty-five per cent, of the value of the pro- 
 perty involved in the suit, he is to certify to the Court the 
 amount of the costs, and the special circumstances, if 
 any, connected therewith. 
 
 318. Where an order directs the plaintiff's costs to ba 
 taxed, and the Master finds that the suit is one within 
 the jurisdiction of the County Court, he is not to tax any 
 costs under the said direction, unless the order contains 
 a declaration that in the opinion of the Court, the cause 
 is a fit and proper cause to be brought in this Court in- 
 stead of the County CouxX.2i'^i-.^S. 
 
 li any suit or proceeding be commenced in the Court of Chancery for 
 any cause or claim which might have been entered in a County Court, 
 no costs shall be taxed against the defendant in such suit or proceeding, 
 and the defendant, if he succeeds in the suit, shall be entitled to a decree 
 against the plaintiff for his costs, as between attorney and client, unless 
 the Court of Chancery be of opinion that it was a fit cause or claim to be 
 withdrawn from a County Court and entered in the Court of Chancery, 
 Cm. Stat. V. C. c. 15, «. 63. 
 
 Before this order it was held that where the Master was directed by a 
 decree to tax the costs of the suit, he had no jurisdiction to decline tax- 
 ing them if he found that the suit might have been brought in the County 
 Court, McLeod v. Millar, 12 Gr. 194. 
 
 Where a plaintiff filed his bill in the Court of Chancery to foreclose a 
 mortgage within the jurisdiction of the County Court, he was refused his 
 costs, the fact that the defendant is resident in another County than that 
 in which the land is situate being no reason for resorting to the Court of 
 Chancery, Connell v. Gurran, 1 Cham. R. 11 j but the necessity for obtain- 
 ing an order for substitutional service is a sufficient reason for filing a 
 
290 ORDERS 319—321. 
 
 bill in Chancery, Seath v. Mcllroy, 2 Cliam. B. 93 ; or where the defend- 
 ant is a resident out of the jurisdiction, Lawrason v. Mtzgerald, 9 Grant, 
 371 ; or where the defendants live in different Counties, McLeod v, Mil- 
 lar, 12 Grant. 1 94. Where the bill is filed in respect of a demand exceed- 
 ing £50 the plaintiff should proceed in Chancery, if there is a subsequent 
 incumbrance exceeding that sum, Hyman v. Boots, 11 Grant, 202 ; Seath 
 V. Mcllroy, 2 Cham. R. 93. 
 
 319. Where the costs of one defendant ought to be 
 paid by another defendant, the Court may order payment 
 to be made by the one defendant to the other directly ; 
 and it is not to be necessary to order payment through 
 the plaintiff. (20th Dec. 1865 ; Ord. 18.) 
 
 320. In the case of an appeal from a Master's report, 
 the Court may give the costs of the appeal, or any part 
 thereof, to a successful appellant. (20th Dec. 1865; 
 Ord. 36.) 
 
 Where an appeal from a report failed on the main point, and succeeded 
 only in respect of a small sum, the Court gave the respondent the costs 
 of the appeal, Brovmlee v. Cunningham, 13 Grant, 586. Where in an ap- 
 peal some of the objections are allowed with costs, and some are disal- 
 lowed with costs, the appellants are entitled to all the costs of the appeal 
 that are exclusively applicable to the objections allowed, and to a share 
 of those costs common to all the objections according to, not the mere 
 number of the objections as stated in the notice, but to the really distinct 
 grounds of appeal, Bank of Montreal v. Ryan, 13 Grant, 204 ; the same 
 rule applies to the respondents' costs. Ibid. 
 
 Where it was considered that the finding of the Master was, under the 
 circumstances, a fit subject for discussion, the Court, although it dismissed 
 an appeal, from the finding of the Master, did so without costs, Secord v. 
 Terryberry, 14 Grant, 172. 
 
 321. Bonds executed upon an order for security for 
 costs are to be given to the Registrar, or Deputy Regis- 
 trar with whom the pleadings in the suit are filed ; aU 
 the defendants are to be included in the same bond ; and 
 the penal sum to be inserted therein is to be fixed upon 
 the application for security, by the Judge or Master who 
 makes the order. (S^rd June, 1853 ; Ord. 43, s. 6.) 
 
JA^ (^(f-uJiA. Cv-iXC ri^:t<A^ /CTV^^' /^~-at^ S-Ca.'-jC.y^ Jt-L- &rd2s h/ 
 e-i- /krriyiU^'CcC^i^,^^ S€c<^^,^ "^^^^ sLe-u^al^ /Ua-..*^^ 
 
ORDER 321. 291 
 
 If the plaintiff Be resident out of the jurisdiction, the Court will, on the 
 application of the defendant, order him to give security for the costs of 
 the suit ; but security will not be ordered unless the plaintiffs are out of 
 the jurisdiction, Walker v. JEasterby, 6 Yes. 612. 
 
 The mere circumstance of the plaintiff having gone abroad is not a 
 sufficient grojind for ordering security ; it must be shewn that he is resi- 
 dent abroad, or has gone abroad for the purpose of residing there, Hoby ■ 
 V. Hitchcock, 5 Ves. 699 ; nor will it be ordered where there is eyidenee of 
 his intention to return. White v, Greathead, 15 Ves. 2 ; Blakney v. Du- 
 faur, 2 D. M. ^ G. 111. 6 •Pia.itiu^ ^L/.^A/. 
 
 A plaintiff within the jurisdiction whose residence cannot be found, or 
 who gives a fictitious address, will be ordered to give security, Sandys v. 
 Long, 7 Sim. 140; 2 M. & K. 487; Oldak v. Wkitcher, 5 Jur. N. S. 84. 
 Somenille v. Kerr, 2 Cham. R. 163 ; a plaintiff fre(juently changing his 
 abode was ordered to give security. Player v. Anderson, 15 Sim. 104 ; and 
 security was ordered where plaintiff described himself as of a particular 
 place, but was proved to have no fixed residence, Calvert v. Day, 2 Y. A 
 0. Ex. 217; but the recent act, 22 Vice. 33, has effected a material 
 change in the practice of the Court, as to granting or refusing security 
 for costs. The fact that the plaintiff has not any fixed place of abode 
 within the Province, will not be suflScient to warrant an order for that 
 purpose, where it is shown that he has property within the jurisdiction ^ 
 White V. White, 1 Cham. R. 48 ; &auU v. Spencer, 2 Cham. R. 92. 
 
 A plaintiff believed to have gone abroad to avoid payment, was ordered 
 to give security, Busk v. Beetham, 2 Beav. 537; so a party only tempo- 
 rarily resident within the jurisdiction, Mnslie v. Sims, 17 Beav. 57 ; Per- 
 rott V. Novelli, 9 Jur. 770. 
 
 A British subject who has resided in the United States for several years^ 
 but had never taken any oath of naturalization, or exercised the rights of' 
 citizenship, returned to Canada, and after some mooths filed a bill ; al~ 
 though several persons swore it was his intention to leave immediately 
 on the decision of the case, yet a motion for security £6r costs was re~ 
 fused, the plaintiff swearing that it was his intention to remain in the' 
 country, O'Qrady v. Mimro, 1 Grant, 106; Harvay v. Smith, I Cham. R» 
 392 ; bat see Marsh v. Beard, 1 Cham. R. S90. 
 
 Security ordered where the plaintiff's solicitor refused all information 
 as to his residence, Bailey^ v. Gundry, 1 Keen. 53 ; but was not required: 
 where the plaintiff's address was a house unoccupied, but tenanted by 
 him, Manby «. Bewiclce, 1 Jur. N. S. 1015 ; nor, where he was not actually 
 resident at the address stated, but there was no intentional misdescrip- 
 tion. Hurst V. Padwick, 12 Jur. 21. 
 
 Mere intention to go abroad is no ground for reqniring security, Wyllie 
 V. Mlice, 11 Beav. 99. Security may be required where it appears upon 
 the bill that the plaintiff, an ofScer in the royali service,, is resident out oi 
 
292 ORDER 321. 
 
 the jurisdiction, unless it is distinctly stated in the bill that he is on ac- 
 tual service, Lillie v. Lillie, 4 M. <fe K. 404 ; or abroad in an official capa- 
 city, Evelyn v. Chippendale, 9 Sim. 497 ; Clark v. Fergusson, 5 Jur. N. S. 
 1155; 1 Gifif. 184; and see Dickenson v. Duffil, 1 Cham. R. 108; 8 U. C. 
 L. J. 326. 
 
 A plaintiff seeking to restrain an action at law to which he is a defend- 
 ant, cannot be compelled to give security, Watteeu v. Billam, 3 DeG. & S- 
 516; notwithstanding the bill may ask for relief other than the injunc- 
 tion, Manley v. Williams, 1 Cham. R. 48. 
 
 A defendant resident out of the jurisdiction presenting a bill in the 
 suit cannot be required to give security, Cochrane u. Fearon, 18 Jur. 568 ; 
 but a person not a party petitioning must give security, Atkins v. Cooke, 
 5 W. R. 381 ; Partington v. Reynolds, 6 W. R. 301 ; and so must a de- 
 fendant obtaining the conduct of the cause, Mynn v. Hart, 9 Jur. 860. 
 A creditor presenting a petition in an administration suit, was ordered to 
 give security, Drever v. Maudesley, 5 Euss. 1 1. 
 
 A client resident abroad applying to tax his solicitor's bill, must give 
 security for the costs of the proceeding-, Re Passmore, 1 Beav. 94 ; and for 
 ■what shall be found due. Anon, 12 Sim. 262. 
 
 An infant out of the jurisdiction petitioning for relief, must give secu- 
 rity for costs, Stinson v. Martin, 2 Cham. R. 86. 
 
 The application for security should be made before the defendant files 
 his answer. Filing an answer or asking further time to answer is a waiver i 
 of the right to security, Melioruchy v. Melioruchy, 2 Ves. Sen. 24 ; Anon, ' 
 10 Ves. 287 ; Chapin v. Clark, V. C. Esten, 28th June, 1859 ; but filing a 
 demurrer is not a waiver, Watteeu v. Billam, 3 DeG. & S. 516 ; nor is 
 filing afSdavits in opposition to a motion for an injunction, Murrow v. 
 Wilson, 12 Beav. 497 ; nor in opposition to a petition, Ex parte Seidler, 
 12 Sim. 106. 
 
 Filing an answer, or asking further time, is no waiver if the plaintiff'* 
 residence appears from the bill to be within the jurisdiction, and the de- 
 fendant is not aware that the address given is incorrect, Swanzy v. Swan- 
 zy, 4 K. & J. 237; but security was refused where the answer was filed 
 after the plaintiff had gone abroad, though sworn before he had gone, 
 Dyott V. Dyott, 1 Madd. 187. 
 
 If the plaintiff goes abroad after the suit is commenced, the application 
 for security should be made promptly upon the defendant becoming awara 
 of it, and before he takes any further active step ; but appeaaing on a 
 motion to pay money into Court, was held to be no waiver, Cooper v. 
 Purtoii, 8 W. R. 702. 
 
 The next friend of a married woman must be a person of substance, 
 otherwise an order will be made that a new next friend be appointed, or 
 security for costs given, Rann v. Lawless, 1 Cham. R. 333 ; Vanwinkle v 
 Chaplin, 2 Cham. R. 98 ; Leishman v. Eaitwood, 2 Cham. R. 83. iZs. fc 
 

ORDERS 321—322. 293 
 
 Where it appears upon the face of the bill that the plaintiff is resident 
 abroad, the order may be obtained as of course upon precipe from the 
 Registrar ; or from a Deputy Registrar, Ord. 36 ; or on an ex parte appli- 
 cation in Chambers. If it does not appear upon the bill, or if the applica- 
 tion is made on account of the plaintiff going abroad or changing his 
 residence, the order must be applied for in Chambers, upon notice sup- 
 ported by afBdavit. v^ia^^'cc~ •Mc^. /i~2-. 
 
 The order is of no effect until served. Where a precipe for an order 
 fot security was filed, and afterwards, on the same day, an order to take 
 the bill pro confesso was obtained, a motion to set aside the order pro con- 
 fesso was refnsed, Chapin v. Clark, V. C. Esten, 30th June, 1859. 
 
 The time usually allowed for giving security is the same as the plain- 
 tiff would, if a defendant resident abroad, have for answering. If the 
 security be not given within the time limited by the order, the defendant 
 may move in Chambers, upon notice, that the security be given within » 
 limited time, or in default the bail to be dismissed, Giddings v. Giddingt, 
 10 Beav. 29; and the time may be enlarged upon the plaintiff's applica- 
 tion, Woodv. Gray, V. 0. Esten, 2nd Dee. 1866. /^v^Qrf<S?^ •^4- S''6. 
 
 The amount for which the bond is given is $400, but the plaintiff may 
 pay money into Court instead of ^ving security, Cliffi v. Wilkinson, 4 
 Sim. 122; as to payment out of the money, see Luther v. Ward, 2 Cham- 
 R. 75. 
 
 The plaintiff is not bound to give two sureties, unless the defendant 
 requires him to do so, but it is always prudent to give two. If there be 
 only one surety, and he dies or becomes bankrupt, the Court, upon the. 
 application of the defendant, will stay proceedings until a new surety is 
 appointed, Lauiour v. Holcombe, 1 Phill. 263; Veitch v. Irving, 11 Sim. 
 122. If the defendant intends objecting to the bond, or to the sufficiency 
 of the surety, he must do so within two days after he is served with no- 
 tice of the filing of the band, Beaton v. Boomer, Vankoughnet, C. 14th 
 February, 1863. 
 
 The solicitor of the party cannot be his surety, Panton v. Labertouche, 
 1 Ph. 265 ; Beckett v. Wragg, 1 Cham. R. 5. 
 
 When the plaintiff is ordered to pay costs, the proper course is to serve 
 the surety with the order, and demand payment, and on his refusing to 
 pay, to move in Chambers for leave to sue on the bond, Roafv. Topping, 
 1 Cham. R. 14 ; Stokes v. Crysler, Ibid. 
 
 XXVI.— PROCEEDINGS TO REVERSE, ALTER OR 
 EXPLAIN DECREES AND ORDERS. 
 
 322. A re-hearing may be had, as well after as before 
 enrolment ; but no second re-hearing is to be had, with- 
 out leave of the Court granted upon special motion for 
 the purpose. (3rd June, 1853 ; Ord. 9, s. 17.) 
 
294 ORDERS 321—325. 
 
 In a suit for the administration of a debtor's estate, under an assignment 
 for the benefit of creditors, creditors who come in ^nder the decree may 
 le-hear the cause ; and this is the proper course where the alteration 
 •sought is such as might be effected in that way by a party to the causei 
 Mulholland v. Hamilton, 12 Grant, 413. 
 
 Where a cause is reheard by some of the defendants, and the decree 
 iaffirnied as against them, other defendants who did not re-hear, cannot 
 ■obtain any relief, although they appear at the re-hearing and ask for it, 
 BlacTc V. Black, 9 Grant, 403. 
 
 Proceedings in a Master's office under a decree are not stayed by a no- 
 Jtice of re-hearing, Campbell v. Campbell, 1 Cham. E. 30. 
 
 If a petition of re-hearing is dismissed with costs the respondent is en- 
 titled to taxed costs, Clarke v. Metcalf, 21st Oct. 1862 ; but see Price v. 
 Deichurst, 4 M. & C. 282 ; Phillips v. Phillips, 8 Jur. N. S. 146. 
 
 323. Re-hearings of causes, and applications in the 
 nature of re-hearings to discharge or vary orders made in 
 Court, or in Chambers by a Judge, are to be in re-hearing 
 term only, unless some special day be appointed by the 
 Judge for the purpose. (28th April, 1862.) 
 
 324. Re-hearings of causes are to be within six months 
 after the decree or decretal order has been passed and 
 entered ; and applications in the nature of re-hearings to 
 discharge or vary orders made in Court, not being decre- 
 tal orders, are to be within four months from the passing 
 and entering of the same ; or within such further time as 
 the Court or a Judge may allow upon special grounds 
 therefor, shewn to the satisfaction of the Court or Judge. 
 (10th May, 1863 ; Ord. \.^7CL.^.Z/il,Z/f9. 
 
 The Court will, in a proper case, grant leave upon terms to re-hear a 
 ■cause, though the usual time therefor has elapsed. Winters v. Kingston 
 Permanent Building Society, 1 Cham. R. 214 ; Stevenson v. Nichol, 2 Cham_ 
 E. 183. 
 
 325. Where a decree or order is not passed or entered, 
 within one month 'from the day judgment is pronounced, 
 the time allowed for re-hearing the cause, or varying or 
 discharging the order, is to begin to run at the expiration 
 of the month. (6th Feb. 1865; Ord. 26.) 
 

 
ORDERS 326—330. 295 
 
 326. No petition for re-hearing is to be presented, but a 
 party desiring to re-hear a cause, is, after paying into Court 
 a deposit of forty dollars, to set the cause down for re- 
 hearing, and serve notice thereof. 
 
 327. Where a party seeks to vary part only of an order, 
 he may, in the notice of re-hearing, state the part of the 
 order which he seeks to vary. (6th Feb. 1865 ; Ord 29.) 
 
 328- A defendant waiving all objection to the order to 
 take the bill pro confesso^ and submitting to pay such 
 costs as the Court directs, may have the cause re-heard 
 upon the merits stated in the bill- (3rd June, 1,853 ; Ord- 
 14, s. 8.) 
 
 329. Motions to discharge or vary orders made by the 
 Judges' Secretary under Order 17, are to be made within 
 fourteen days, and are to be to a single Judge upon no. 
 tice ; unless a Judge gives leave to bring the same before 
 the full Court in the first instance. 
 
 An appeal will not lie from an order made by the Judges' Secretary 
 until it is signed and entered, Gibb v. Murphy, 2 Cham. R. 132. A party 
 cannot use affidavits not used before the Judges' Secretary, or make a 
 new case on an appeal, SanJc of Montreal v. Wilson, 2 Cham. E. 117. 
 
 330. Any party entitled by the former practice to file 
 a bill of review, praying the variation or reversal of an 
 order, upon the ground of matter arising subsequent to 
 the order, or subsequently discovered, or a bill in the na- 
 ture of a bill of review, or a bill to impeach a decree on 
 the ground of fraud, or a bill to suspend the operation of 
 a decre^, or a bill to carry a decree into operation, is to 
 proceed by petition in the cause, praying the relief which 
 is sought, and stating the grounds upon which it is 
 claimed. (3rd June, 1853 ; Ord. 9, s. 18.) 
 
 It is not necessary to present a petition for leave to file a petition in 
 the nature of a bill of review, Duggan v, McKay, 1 Cham. E. 380. 
 
296 ORDER 331—333. 
 
 Bills of review were either bills for error of law apparent in the decree 
 (which might be filed without leave,) Trulock v. Robey, 2 Phill. 395 ; 
 (see observations on that case, Qree'n v. Jenkins, 29 L. J. 505 ; 6 Jur. N- 
 S. 515;) Perry u. PAi%», IT Ves. 173; Tommey v. White, 1 H. L. Ca" 
 160 ; Gould V. Tancred, 2 Atk. 533 ; or where material evidence or facts 
 were discovered which could not have been used when the decree passed, 
 in which case leave to file the bill was necessary. Young v. Keighly, 16 
 Ves. 318; Oook v. Banfield, 8 Swanst. eC? ; Bennett v. Lee, 2 Atk. 523 ! 
 Standish v. Radley, 2 Atk. 177 ; Hungate v. Gaacoyne, 2 Phill. 25. Such 
 evidence or facts must not have come to the knowledge of the solicitor of 
 the parties before the evidence closed in the former suit, Norris v. LeNeve< 
 3 Atk. 35. 
 
 To sustain a bill of review, the error must be specifically assigned ; it 
 must be an error conflicting with some legal, equitable or statutory rule, 
 not a mere error in judgment, Green v. Jenkins, 6 Jur. N. S. 615. On a 
 bill of review, the party could not assign for error that any matters were 
 decreed contrary to the proofs in the case, he could shew only, error ap- 
 pacent in the decree, or newly discovered matter, Mellish v. Williams^ 1 
 Vern. 166. 
 
 331. 'The petition is to be verified by affidavit, and 
 served upon the solicitors of all parties interested ; and in 
 case a party has no solicitor, then upon the party. (3rd 
 June, 1853 ; Ord. 9, s. 18.) 
 
 Sev^n days' notice of the hearing must be given, Ord. 418. 
 
 332. Upon the copy of the petition served is to be en- 
 dorsed the following memorandum or notice : " If you 
 do not appear on the petition the Court will make such 
 order on the petitioner's own shewing as shall appear just, 
 in your absence ; and if this petition is served personally 
 you will not receive any notice of the further proceedings 
 on the petition." (9th May, 1862.) 
 
 333. Upon the hearing of the petition, the Court may 
 either make a final order, or direct the petition to stand 
 over, with liberty to the parties interested in sustaining 
 the decree to file a special answer to the same ; and may 
 make such order as to the production of further proof, 
 and the manner thereof, and the further hearing of the 
 
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 C^i^fj^ ilj i^i'^atuu^^.4^U^ Ac^^Ct-^^^ci^ ^C<^- ^AttAet,^^ t>. 
 
 ,2/S^a^ 99. 
 
ORDERS 334—337. 297 
 
 petition, as the Court deems meet. (3rd June, 1853 ; 
 Ord. 9, s. 18.) ^ 
 
 334. Where the reversal or variation of an order is 
 sought upon new matter, such proof as would have been 
 requisite upon a motion to file a bill of review must be 
 supplied. (3rd June, 1853 ; Ord. 9, s. 18.) 
 
 335. An application to amend an order which has not 
 been drawn up in conformity with the judgment pro- 
 nounced, so as to make the same conformable thereto ; and 
 an application to correct, any other clerical mistake in an 
 order, or an error arising from an accidental slip or omis- 
 sion, may be made in Chambers on petition, and the Court 
 may grant the same, if under all the circumstances the 
 Court sees fit. (20th Dec. 1865 ; Ord. 19.) 
 
 Where a neces3ary direction is omitted in a decree, the Court will 
 amend it, though passed and entered, Moffatl v. Hyde, 6 U. 0. L. J. 94 ;. 
 the proper mode of proceeding is by petition, Ibid. 
 
 An application to correct a clerical error in a decree or order, must as 
 a general rule be made upon notice, Radmhurtt v. Reynolds, 1 1 Grant,, 
 521. 
 
 Where a decree erroneously made provision for the payment of certain 
 legacies in priority to the provision made by the testator's will for his 
 widow, an application by the widow to amend the decree was granted 
 without costs, she not having raised the questioh of priority before the 
 Court, and the plaintiff having taken out the decree without notice to 
 her, Hadie v. McEwen, 14 Grant, 404. 
 
 336. Where an order as drawn up requires amendment 
 in any other particular on which the Court did not adju- 
 dicate, the same may be amended in open Court on pe- 
 tition without a re-hearing, if under all the circumstances 
 the Court deems fit. (20th Dec. 1865 ; Ord. 20.) 
 
 XXVII.— REVIVOR AND SUPPLEMENT. 
 
 337. Upon a suit becoming abated by death, marriage, 
 or otherwise, or defective by reason of some change or 
 
•298 ORDER 337. 
 
 transmission of interest or liability, on the part of a plain- 
 tiff or defendant by devise, bequest, descent, or otherwise, 
 it shall not be necessary to exhibit a bill of revivor or 
 supplemental bill, to obtain an order to revive such suit 
 or an order to carry on the proceedings, but an order to 
 the effect of the order to revive, or of the usual supple- 
 mental decree under the former practice of the Court, 
 may be obtained upon precipe, upon an allegation con- 
 tained in the precipe, of the abatement of the suit, or of 
 the same having become defective, and of the change 
 or transmission of interest or liability. (6th June, 1863 ; 
 Ord. 3.) 
 
 This order applies to abatement either before or after decree, 10 Hare, 
 App. 12 ; but where a sole defendant dies before the bill is served npon 
 him, there is no suit in Court, the plaintiff, therefore, cannot revive, and 
 if he take out an order to revive under such circumstances it will be dis- 
 charged with costs, Watson v. Ham, 1 Cham. E. 295. 
 
 Where the abatement is before decree, only the plaintiff can obtain the 
 order ; and a defendant or the representatives of a deceased defendant, 
 can only move that the plaintiff do revive within a limited time, or in 
 default that the bill be dismissed. 
 
 A creditor who in a creditor's suit has proved a defendant on the estate 
 is considered a plaintiff for the purpose of reviving, English v. Hayman, 
 9 Hare, App. 88; Lowes v. Lowes, 2 D. M. & G. 784; even though the 
 report allowing his debt ia not signed, Inchley v. AlUop, 9 W. R. 649. 
 
 Where the suit abates after decree, any defendant who has an interest 
 therein may serve on the plaintiff's neglecting to do so ; but if a defendant 
 desires not only to revive, but also to get the conduct of the suit, he 
 must give notice of his motion, Noble v. Stow, 30 Beav. 512. 
 
 When the suit abates between the hearing and decree, judgment may 
 be given without reviving, Collinson v. Lister, 20 Beav, 355; Belsham v. 
 Percival, 8 Hare, 157; Boucicault v. Delafield, 12 W. R. 8. So a decree 
 may be drawn up though the suit has abated since it was pronounced, 
 Willimott V. Ogelby, Seton, 1139 ; and see Rucker v. SchoUfield, 1 N. E. 
 180; Beamish V. Pomeroy, 1 Cham. R. 32 ; Galbraith v. Armstrong, 1 Cham. 
 R. 33. 
 
 No abatement takes place when the deceased plaintiff has one of several 
 co-plaintiffs representing a class under order 58, Hiride v. Morton, 2 H. 
 & M. 368 ; where Hall v. Olive, 20 Beav. 575 ; Smith v. Horsfall, 24 Beav- 
 •331 ; Vre v. Lord, 2 Dr. & Sm. 263, were not followed. 
 

ORDER 337. 299 
 
 Where the plaintiff in an administration suit, who was beneficially en- 
 titled, died, and the estate was known to be insolvent, an order of revivor 
 was made, dispensing conditionally with the presence of the plaintiff's 
 representatives, Leycester v. Norris, 13 W. E. 201. 
 
 This order applies where the interest of a party to the suit is trans- 
 ferred by mere operation of law, as on the marriage of a female plaintiff 
 or defendant, see Rudge v. Weedon, 4 DeG. & J. 216 ; and a sole female 
 plaintiff entitled for her separate use, was allowed on her marriage the 
 common order to revive by her next friend against her husband, Treze- 
 vant V. Broughton, 5W.R.517; soon the death of any party to the suit, 
 and consequent transmission of his interest to his legal representative, 
 Ward V. Shakeshaft, 1 Dr. & Sm. 607 ; Flockion v. She, 1 W. B. 393 ; Fane 
 V. Richards, 11 W. R. 524. 
 
 Where the object of the party reviving the suit against executors is 
 not only to cure the abatement, but to get the benefit of any amounts 
 directed against the deceased party, and to continue them against his 
 representatives, an order will be made on motion that the executors do 
 admit assets, or in default that an account be taken, Edwards v. Bailey, 
 19 Beav. 457 ; Cartwright v. Shepherd, 20 Beav. 122 ; overruling Dean Sf 
 Chapter of Ely v. Edwards, 22 L. J. Ch. 629. 
 
 On the bankruptcy of any party to the suit, the common order to 
 revive against his assignee can be obtained, Macdonald v. Macfarlane, 6 
 W. R. 245; Lash v. Miller, 4 D. M. A G. 841 ; Jackson v. Riga Rail Co. 
 28 Beav. 75 ; and on the annulment of a bankruptcy, the suit can be 
 revived by common law against the late bankrupt, Mostyn v. Emmanuel 
 5 N. R. 464. 
 
 On the lunacy of a plaintiff, his committee may revive by a common 
 order, Dangar v. Stewart, 9 W. R. 266 ; Timpson v. London and North 
 Western Rail. Co., 11 W. R. 558. 
 
 To where a change of interest has taken place by, a necessary party 
 coming into existence during the pendency of the suit, Fullerton v. Mar- 
 tin, 1 Drew. 238 ; Phippenv. Brown, 1 Jur. N. S. 698 ; Pickford v. Brown, 
 1 E. <£[ J. 643 ; and see Jebb v. Tugwell, 20 Beav. 461, where a supple- 
 mental order was made pending the interest of an infant born before 
 decree, but by inadvertence, not made a party before decree, it appearing 
 that it would be for his benefit. 
 
 The common order may be refused in cases where the revivor will alter 
 the frame pf the suit, e. g. where a co-plaintiff is placed in such a position 
 that he ought to be a defendant, Jervoise v. Clark, 2 W. R. 337 ; where 
 one of two creditors, plaintiffs in a creditor's administration suit, upon 
 an abatement by the death of an executor of the testator, obtained letters 
 of administration, de bones non to the testator's estate, it was held 
 that the suit could not be revived against him under this order, Tate v. 
 Leiihead, 9 Hare, App. 51 ; but see Cresswell v. Bateman, 6 W. R. 220 ; 
 
300 ORDER 237. 
 
 and see also Pedder v. Pedder, 8 W. R. 15, where the defendant died, 
 having appointed the plaintiff his executor. At first it was held in 
 England that the corresponding section of the Statute (Imp. Act, 15 & 
 16 Vic. c. 86, s. 52,) did not apply where the interest of a sole plaintiff 
 wholly determined, bat latterly a more liberal construction has been put 
 upon the section, Eijre v. Brett, 34 Beav. 441 ; Colyer v. Colyer, 1 L. E. 
 Ch. 482 ; Mallock v. SHU, 15 W. B. 293 ; Hobfon v. Seawood, 15 W. R. 
 887 ; and see Geddes v. Allan, 1 Cham. R. 336. 
 
 Where the interest of a sole defendant determined by his death, the 
 common order was made to revive against his devisee, Earl of Durham 
 V. Legard, 34 Beav. 442. 
 
 Where in a mortgage suit the plaintiff died after being redeemed by a 
 subsequent incumbrancer, it was held unnecessary to revive the suit, but 
 that the incumbrancer might proceed to foreclose the mortgagor, Coidaori 
 V. Sheehey, 1 Cham. 216. 
 
 Where some proceedings have been taken in the suit in ignorance of 
 the abatement, an order can be obtained directing that future proceedings 
 shall be carried on against the new parties, see Freeman -u. Pennington, 
 8 D. F. & J. 296 ; and the Court in sach a case has jarisdiction to affirm 
 past proceedings where the new parties consent, Houston v. Briscoe, 7 
 W. R. 394 ; Smith v. Horsfall, 24 Beav. 831 ; but no such order can be 
 made except by consent, Graham v, Davis, 2 Cham. R. 187. 
 
 As a general rule there can be no revivor for costs after an abatement 
 by death, Morgan v. Scudamore, 2 Ves. Sl.S ; Andrews v. Zockwood, 15 
 Sim. 153 ; whether the abatement be caused by the death of the party to 
 pay or the party to receive the costs, Japp v, Oeering, 5 Mad. 375 ; nor 
 is this rule affected by the fact of the defendant being a corporate body, 
 Umpelhy v. Waveney Valley Bail. Co. 1 J. & H. 254 ; nor the fact that 
 the bill specially prays costs, Ibid ; nor that the party who has died 
 without paying costs was one of several defendants, Bowyer v. Beamish, 
 2 J. 4 L. 238. 
 
 Where the party to whom costs were payable died before taxation, the 
 Court (the suit not having been revived) refused with costs a motion that 
 the Master might proceed with the taxation, Robertson v. Southgate, 1 
 Hare, 109 ; but the survivors of several defendants, against whom a bill 
 has been dismissed with costs, to be taxed, and paid by the plaintiffs, are 
 entitled to proceed with the taxation of their costs, notwithstanding the 
 death of one of such defendants, without a revivor of the suit, and al- 
 though the surviving defendants and the deceased, in his life time, had 
 carried on a Court bill of costs for taxation. Hunter v. Daniel, 1 Hare , 
 281 ; but see Malins v. Oreenway, 7 Hare, 391. 
 
 The exceptions to this rule are : (1.) Where the costs have been taxed, 
 Lowten v. Mayor of Colchester, 2 Mer. 113 ; overruling Glenham v. Stut- 
 well, 1 Dick. 14; or the taxation has been postponed, on an undertaking 
 
ORDERS 337—339. 301 
 
 that the postpoiiement shall be without prejudice, Tucker v. Wilkins, 7 
 Sim. 349. (2.) Where some obligation imposed on the party liable for 
 costs remains to be executed, Bowyer v. BeamM, 2 J. & L . 240 ; John- 
 son (1. Peck, 2 Ves. Sen. 465. (3.) Where the costs are ordered to be paid 
 by the estate, Jenour v. Jenour, 10 Ves. 562 ; or out of a particular fund, 
 Kemp V. Mackrell, 2 Ves. Sen. 5'Z9. (4.) Where the costs are ordered to 
 be paid by an officer of the Court, e g., by a receiver, Betagh v. Ooncanon^ 
 LI. & G. temp. Plunket, 355. 
 
 338. An office-copy of the order is to be served upon 
 the party or parties who would be defendant or defend- 
 ants to a bill of revivor or supplemental bill according to 
 the former practice of the Court, and such order shall, 
 from the time of service, be binding upon such party or 
 parties, in the same manner in every respect as if the or- 
 der had been regularly obtained according to the former 
 practice of the Court, and the party or parties shall there- 
 upon become thenceforth a party or parties to the suit. 
 (6th June, 1862 ; Ord. 3.) 
 
 This order is a variation from the former order of 6th June, 1862, in 
 requiring the copy served to be an oflSce-copy. 
 
 The service should be on the defendants personally, but, wheh a de- 
 fendant is out of the jurisdiction, an order may be obtained to substitute 
 service on his solicttor, Foster v, Menziet, 10 Hare, App. 36 ; see Scott v. 
 Wheeler, 13 Beav. 239 ; Norton v. Hepvoorth, 1 Mac. & U. 54. 
 
 Where a defendant becomes insolvent after the service of the bill upon 
 him, but before the term for answering expires, and the suit is thereupon 
 revived against the assignee in insolvency, it is necessary to serve the 
 assignee with the bill as well as with the order to revive, or an order 
 pro confesso cannot be obtained, Smith v. Lines, 1 Cham. R. 398. 
 
 339. It shall be open to the party or parties so served, 
 to apply to the Court, wit^iin fourteen days after the ser- 
 vice of the order, by motion or petition, to discharge the 
 order on any ground which would have been open to him 
 or them on a bill of revivor or supplemental bill, stating 
 the previous proceedings in the suit, and the alleged 
 change or transmission ol interest or liability, and pray- 
 
302 ORDERS 339—344. 
 
 ing the usual relief consequent thereon. (6th June^ 
 1862; Ord. 3.) 
 
 The term of vacation ig not reckoned in the computation of the 14 days, 
 Ord. 408. The order being obtained ex parte, is liable to be objected to 
 by any parties to the suit, Jackson v. Ward, 1 Giff . 30 ; and if obtained 
 on a false statement of facts, will be discharged as irregular, Bagnall v. 
 Whitehead, 30 Beav. 229 ; and see Smith v. Crunn, 2 Cham. R. 230. 
 
 340. If a party so served shall be under any disability 
 other than coverture, the order shall be of no force or el- 
 fect as against such party, until a guardian ad litem has 
 been duly appointed for such party, and the period of 
 fourteen days has elapsed thereafter. (6th June, 1862 ; 
 Ord. 3.) 
 
 341. Upon every office-copy of an order of revivor 
 served, there is to be endorsed a memorandum in the 
 form or to the efiect set forth in schedule N. (1st April,. 
 1867; Ord. 14.) 
 
 342. Where an order to revive is served out of Onta- 
 rio, the party served is to have the same time to apply to 
 discharge the order, as a defendant has to answer a bill 
 of complaint ; but an application may be made for short- 
 ening the time, as in the case of answers to bills in like 
 cases. (20th Dec. 1865 ; Ord. 37.) 
 
 343. Where the Court authorizes publication instead 
 of service, the Court is at the same time to appoint such 
 time for applying to discharge the order to revive a» 
 seems proper. (20th Dec. 1865; Ord. 38.) 
 
 344. Where a suit is defective by means ol some im- 
 perfection in the bill, and not in consequence of an event 
 arising subsequent to its institution, the Court may at any 
 time permit an amendmeat of the bill in furtherance of 
 justice, and on such terms as it thinks proper, for the pur- 
 pose of altering the allegations in the bill, or putting new 
 
5/^/^. at t cM^.^r^ c.^ cJiru,.-^ ^c^lP?./, CAy. 7/ 
 
ORDERS 344 — 348. 303 
 
 matter in issue, as well as for the purpose of adding or 
 striking out the names of parties, or of varying the relief 
 prayed, or praying further relief. (3rd June, 1853 ; Ord. 
 9, s. 14.) Su o^cU^ IS-S/ a~^ 3/fS. 
 
 345. The order is to be applied for by motion, the 
 notice of which is to state the required amendment, and 
 to be served upon the parties, or their solicitors, unless- 
 dispensed with. (3rd June, 1853 ; Ord. 9, s. 14.) 
 
 346. Upon the motion the Court must be satisfied, by 
 affidavit or otherwise, of the truth of the proposed amend- 
 ment, and of the propriety of permitting it to be made 
 at the particular stage of the cause, under all the circum- 
 stances. (3rd June, 1853 ; Ord. 9, s. 14.) 
 
 347. Upon pronouncing such order for amendment the 
 Court is to give such order as to the future conduct of the 
 suit in relation to answering such amendments, as also- 
 with regard to the evidence taken, and in all other re- 
 spects, as the circumstances of the case may require. (3rd 
 June, 1853 ; Ord. 9, s. 14.) 
 
 348. Where, in a case not provided for by Order 344,, 
 a plaintiff desires to state, or put in issue, facts or circum- 
 stances occurring after the institution of the suit, if the 
 cause is otherwise in such a state as to allow of an amend- 
 ment being made in the bill, such facts or circumstances 
 may be introduced into the original bill of complaint by 
 
 way of amendment. (20th Dec. 1865 ; Ord. 6.) 
 
 S^'^'Um 78-S/ a^ 34'4- 
 
 Not only facts which hare occurred, but facts which have been dis- 
 covered since the institution of the suit, may be introduced by amend- 
 ment, Bollon V. Ridsdale, 2 W. R. 488. 
 
 A plaintiff whose title was defective at first, may not by amendment 
 introduce matter to cure such defect, AUarney-Omeral v. Portreeve Of 
 Avon 11 W. R. 1050 ; Godfrey v. TacUr, 33 Beav. 280 ; no rmay he add 
 or strike out a prayer for relief after answer, Butterworth v. Bailey, 15 
 
304 ORDERS 348—350. 
 
 Ves. 358; Lord Oholmondeley v. Lord Clinton, 2 V. & B. 113; but see 
 Severn v. Fletcher, 5 Sim. 457. 
 
 Nor can he introduce new charges or alter the nature of the suit by 
 axnenAmeni, Mollett V. Enequist, 26 Bia,v. 466; Deniaon v. Curtis, 11 L. 
 T. N. S. 6ll; Horton v. Brocklehursl, 29 Beav. 503; even though new- 
 parties are added by amendment, Milligan v. Mitchell, 1 M. & C. 433 • 
 Gibson, V. Ingo, 5 Hare, 156 ; Barlow v. McMurray, 2 L. R. Eq. 420. If a 
 plaintiff introduces such amendments he will have to pay such costs as 
 have been occasioned by his irregular proceedings, Muvur v. Dry, 2 S. & 
 S. 118 ; Parker v. Nickson, 4 Giff. 311 ; or the defendant may move that 
 the amended bill may be taken off the files, or the amendments struck outi 
 the plaintiff paying the costs of the application, Barlow v. McMurray, 2 
 L. R. Eq. 420. 
 
 This order does not apply for the purpose of making persons parties 
 Trho have become necessary parties in respect of new facts or charges of 
 interest; this must be done bys revivor, Commerell v. Hall, 2 Drew, 194 ; 
 Webb V. Wardle, 11 Jur. N. S. 278 ; Nicholson v. Gibb, 2 W. R. 337; but 
 a merely formal party, e. g., the personal representative of the testator 
 in the cause who has taken out administration since the bill was filed, 
 may be added by amendment, Beardmore v, Gregory, 2 H. & M. 491 . 
 Sfath V. lewis, 2 W. R. 641 ; Ealdane v. Eckford, 14 W. R. 308. 
 
 349. If the cause is not in such a state as to allow of 
 the bill being amended, the plaintiff may state and put in 
 issue such subsequently occurring facts and circumstan- 
 ces by filing a statement, either written or printed, to be 
 annexed to the bill. (20th Dec. 1865 ; Ord. 7.) 
 
 A supplemental statement is rarely filed, for the bill can generally be 
 amended before decree, and after decree Order 348 does not apply, Oom- 
 merel! V.Hall, 2 Drew. 194. 
 
 The same rules apply to a supplemental statement as to ordinary amend- 
 ments. Thus, a suit cannot be revived against new parties by a supple- 
 mental statement, but only by order of revivor, Heath v. Chapman, 1 W. 
 R. 244; Heath v. Jjewis, 18 Beav, 527. 
 
 A defendant cannot file a supplemental statement any more than he 
 can amend a plaintiff's bill, Langdale v. Gill, 1 Sm. & G., 24; even 
 though he has the conduct of the suit, Lee v. Lee, 9 Hare, App. 91. 
 
 350. No such statement is to be filed unless accom- 
 panied by an affidavit that the matter thereof arose within 
 two weeks next before the filing of such statement, or 
 unless the Court otherwise order. A copy of the affidavit 
 
36'2.. -^^-^ ^^4^ /s cL~Jv>.cJd>i,. ^ Ptc^.^'c^y^^^^tZt^ 266"^ 
 
ORDERS 350—355. 305 
 
 isto be served with a copy of the statement. (20th Dec. 
 1865; Ord. 7.) ' . 
 
 351. Proceedings byway of answer and otherwise, are 
 to be had and taken on the statement so filed, as if the 
 same were embodied in a bill ; but the Court may make 
 any order which it thinks fit for accelerating the proceed- 
 ings thereunder in any manner that is just and practicable. 
 (20th Dec. 1865 ; Ord. 8.; 
 
 XXVIII.— PAYMENT OF MONEY INTO AND OUT 
 OF COURT. 
 
 352- Money ordered to be paid into Court by any per- 
 son is to be paid into the Canadian Bank of Commerce, 
 at Toronto, with the privity of the Registrar, and in no 
 other manner. (10th Sept. 1866 ; Ord. 18.) 
 
 353. A person desiring to pay money into Court is to 
 produce to the Ledger Clerk the order, if any, under 
 which the same is payable, and is to file a precipe in 
 the form set out in schedulct).^ (10th Sept. 1866 ; Ord. 
 19.) 
 
 354- The Bank, on receiving money to the credit of 
 any cause or matter, i.« to prepare a receipt therefor in 
 duplicate ; and one copy is to be delivered to the party 
 making the deposit, and the other is to be posted or de- 
 livered the same day to the Ledger Clerk. (10th Sept. 
 1866 ; Ord. 20.) 
 
 355. Money is to be paid out of Court upon the joint 
 cheque of the Registrar and Ledger Clerk, countersigned 
 by one of the Judges, and not otherwise. (lOth Sept. 
 1866; Ord. 18.) 
 
306 ORDERS 356—359. 
 
 An order for payment of money out of Court will not be made ex parte, 
 the party who has paid it in must be served with notice, Sullea o. Ren- 
 wicl-, 1 Cham. R. 213. «» indiMl9 •Vc^><-U^ /SL-,^ ^c^*^^ 9-i^c.:^ 
 
 ff^iL^ Cin Acj^ gi^ C^cji/^i,^ c.-X^^'h. 
 
 356. The person entitled to a cheque is to produce and 
 leave with the Ledger Clerk the orders and reports en- 
 titling such person to the money, and is to file a precipe 
 in the form set out in schedule O.^ (10th Sept, 1866 j 
 Ord. 22.) 
 
 357. If the Ledger Clerk finds the party entitled as 
 mentioned in the precipe, he is to prepare and sign the 
 cheque ; and he is then to attend the Registrar with the 
 cheque and the necessary papers ; and the Registrar after 
 examining the papers, and verifying the party's right to 
 the cheque, is to add his signature after which the same 
 is to be countersigned by a Judge, (10th Sept. 1866; 
 Ord. 23.) 
 
 358. The orders and reports produced as aforesaid, are 
 to be re-delivered to the party entitled thereto, with the 
 cheque. (10th Sept. 1866 ; Ord. 25.) 
 
 359. The following Account Books are to be kept, re- 
 lating to money in Court, or invested under the authority 
 of the Court : 
 
 1. A Book of Directions to the Bank to receive 
 
 money ; 
 
 2. A Book of Cheques ; 
 
 3. A Money Journal ; 
 
 4. A Money Ledger ; 
 
 5. A Stock Journal ; 
 
 6. A Stock Ledger ; 
 
ORDERS 359—363. 307 
 
 7. A Balance Book ; 
 
 8. A Book as to the Mortgages and Investments, 
 
 other than Dominion Stock, made under the 
 authority of the Court. (10th Sept. 1866; Ord. 
 11.) 
 
 360. The Book of Directions and the Book of Cheques 
 are respectively to be in the same form as hitherto, or in 
 such form as the Judges from time to time direct or ap- 
 prove. 1 he cheques are to specify in the body thereof 
 the amount of interest, if any, payable therewith : and the 
 directions and cheques are respectively to be numbered 
 consecutively. (10th Sept. 1866; Ord. 12.) 
 
 361. The Money Journal is to shew the sums paid into 
 and out of Court from day to day ; and is to be so ar. 
 ranged and kept that at the foot of each page will appear 
 the total amount in the Bank, assuming all cheques to 
 have been presented. (10th Sept. 1866 ; Ord. 13.) 
 
 362. The Money Ledger is to contain a separate ao-. 
 count for every cause or matter in which there is money 
 in Court ; and also the Suitors' Fee Fund Account, and 
 the General Bank Interest account ; each of which ac- 
 counts is to shew correctly the state and condition thereof 
 for the time being. (10th Sept. 1866 ; Ord. 14.) 
 
 363. In each of the suitor's accounts there are, from 
 time to time, to be entered the date, purport, or short ma- 
 terial contents, of all orders and reports affecting the same ; 
 also, every sum paid into and out of Court, and by whom 
 paid, and for what paid, and under what authority. There 
 is also to be credited to the account, the Bank interest 
 computed or included in any order or report; and a cor- 
 responding transfer of interest is to be made at the Bank, 
 by cheque signed and countersigned as in other cases. 
 There is likewise to be entered in the account a statemen.t 
 
308 OEDER 363—367. 
 
 or memorandum of any other matters material for the 
 information of the Court or its oiScers, or of any of the 
 parties. (10th Sept. 1866; Ord. 15.) 
 
 364. In the Stock Journal and Stock Ledger are to be 
 entered all transactions relating to Dominion Stock, held 
 or purchased by the Court for suitors, and all orders, re- 
 ports, and other particul^s as to the said Slock, in such 
 manner as the Judges from time to time direct or approve. 
 
 365. The Balance Bookis to contain a statement entered 
 therein quarterly, of the balances at the credit of the 
 various accounts in the two ledgers at the date of such 
 statement, such balances are to be made up on the fif- 
 teenth of March, fifteenth of June, fifteenth of September, 
 and fifteenth of December, of every year. The balances 
 from the Money Ledger are to be so entered after a com- 
 parison of the accounts in ihe Ledger with the Bank's 
 accounts ; which comparison is to .be made by the Regis- 
 trar and Ledger Clerk jointly, and the list thereupon en- 
 tered in the Balance Book is to be signed therein by them. 
 <10th Sept. 1866 ; Ord. 26.) 
 
 366. In the Book of Mortgage Investments, are to be 
 entered, under the heading of the cause or matter in which 
 any mortgage or other security has been taken by the 
 order of the Court, the date and short material contents of 
 such mortgage or security, and of all subsequent orders 
 and proceedings in relation thereto, until such mortgage 
 or other security is discharged by order of the Court. 
 >(10th Sept. 1866 ; Ord. 27.) 
 
 367. A list, signed by the Registrar and Ledger Clerk, 
 of all the mortgages and securities, other than Dominion 
 Stock, outstanding on the 1st January and 1st July, in 
 «ach year is to be delivered to and left with the Judges 
 within ten days thereafter, and such list is to set forth in 
 •convenient form : 
 
ORDERS 367—370. 309 
 
 1. The short style of the cause or matter ; 
 
 2. Date of order under which mortgage or other se- 
 
 curity executed ; 
 
 3. Date thereof; 
 
 4. Amount ; 
 
 5. When payable ; 
 
 6. For whose benefit ; 
 
 7. What sums, if any, overdue for principal or in- 
 
 terest ; 
 
 8. Name of mortgagor or party giving security ; 
 
 9. Locality (not description) of mortgaged property ; 
 
 10. Remarks. (10th Sep. 1866 ; Ord. 28.) 
 
 368. The books kept under these Orders are to be open 
 to inspection ; and the Registrar is to give a certificate of 
 the state of any account, or an extract therefrom, at the 
 desire of any party interested, or his solicitor. (10th Sept. 
 1866 ; Ord. 29.) 
 
 369. Persons entitled to money in Court may have a 
 sufficient amount of the unappropriated Dominion Stock 
 standing in the Registrar's name, appropriated as an in- 
 vestment of such money, or of part thereof, at the current 
 rate, but at not less than par. 
 
 370. If all parties interested consent in writing, the 
 consent is to be filed Avith'the officer having charge of the 
 books, and he is to make the appropriation without an 
 order being drawn up for the purpose, and is to enter 
 the consent in the Stock Ledger, under the heading of 
 the cause or matter, with the material contents of all or- 
 
310 ORDERS 370—376. 
 
 ders necessary to shew who are interested in such account, 
 and the shares in which they are respectively interested 
 therein. 
 
 371. If there is no unappropriated stock applicable to 
 the purpose, a direction, signed and countersigned in the 
 same manner as a cheque, is to be delivered to the Bank, 
 for the purchase to be made in the name of the Registrar ; 
 and when the purchase is made, a cheque is to be drawn 
 for the amount, signed and countersigned as aforesaid, 
 and like entries are to be made in the Stock Ledger. 
 
 372. The interest on stock so appropriated or purchased, 
 is, each half-year, to be credited to the various accounts 
 entitled thereto ; and wherever interest is ordered to be 
 paid from time to time to any person, he is to be en- 
 titled to teceive a cheque therefor without further order. 
 
 373. Mortgages and other securities taken under an 
 order of the Court, are to be taken in the name of the Re- 
 gistrar, unless the order directs the security to be taken 
 in the name of some other officer of the Court. 
 
 XXIX.— SALES. 
 
 374. Where a sale is to take place rmder an order of 
 the Court, no copy of the order, or any part thereof, is to 
 be brought into Chambers, or the Master's office, but the 
 original order is to be used, unless the Judge or Master 
 requires a copy. (3rd June, 1853; Ord. 36, s. 1.) 
 
 375. An appointment or warrant in respect of the sale 
 is to be obtained from the Judge or Master, and served 
 upon all necessary parties. (3rd June, 1853 ; Ord. 36, 
 s. 2.) 
 
 376. At the time appointed thereby, the party having 
 the conduct of the sale, is to bring into Chambers, or the 
 
ORDERS 376—377. 311 
 
 Master's office, a draft advertisement, but no particulars 
 or conditions of the sale, or any draft or copy thereof. 
 .(3rd June, 1853 ; Ord. 36, s. 3.) 
 
 Usually the plaintiff has the conduct of the sale, Dale v. Hamilton, 10 
 Hare, App. T ; though the Court may give it to another, in a proper case, 
 as where plaintiff had liberty to bid, Dixon v. Pyner, 14 Jur. 218 ; see 
 Knott V. Cottee, 27 Bear. 33. 
 
 When a sale is asked by a defendant in a foreclosure suit, the Court 
 may require the party asking it to conduct the sale at his own expense, 
 Ord. 430 ; but see Taylor v. Walker, 8 Grant. 506. 
 
 Where property has been put up for sale under an order of the Court, 
 but the sale has proved abortive for want of bidders, the property may be 
 advertised, and put up for sale again without further order, Sherwood v . 
 Campbell, 1 Cham. R. 299. 
 
 377. The advertisement is to contain the following 
 particulars : — 
 
 1 . The short style of cause ; 
 
 &. That the sale is in pursuance of an order of the 
 Court ; 
 
 3. The time and place of sale ; 
 
 4. A short and true description of the property to be 
 
 sold ; 
 
 5. The manner in which the property is to be sold, 
 
 whether in one lot or several, and if in several, 
 in how many, and what lots ; 
 
 6. What proportion of the purchase money is to be 
 
 paid down by way of deposit, and at what time 
 or times, and whether the residue of such pur- 
 chase money is to be paid with or without in- 
 terest; 
 
 7. Any particulars in which the proposed conditions 
 
312 ORDERS 378—380. 
 
 of sale differ from the standing conditions. (3rd 
 June, 1853 ; Ord. 36, s. 4.) 
 
 Advertisements for sales under the direction of tlie Court should be as 
 short as possible ; the short style of the oa)use and a short description of 
 the property and improTements is sufficient, and no merely formal parts, 
 such as convey no information to intending purchasers, should be in- 
 serted, Baxter v. Finlay, 1 Cham. 230 ; Buchanv. Wilks, Ibid, 231, N. 
 An advertisement for the sale of property under a decree, should set out 
 all the improvements on the property, otherwise it will be referred back 
 to the Master to re-settle the advertisement, and appoint a new day for 
 the sale, Reward v. Bidout, 1 Cham. E. 244. 
 
 378. At the time named in the appointment or war- 
 rant, the Judge or Master is, to settle the advertisement %- 
 to fix the time and place of sale; to name an auctioneer, 
 where one is to be employed ; and to make every other 
 necessary arrangement preparatory to the sale, so that 
 nothing niay remain to be done but to insert the adver- 
 tisement ; and all the before-mentioned matters must be 
 done at one meeting, namely, upon the return of the ap- 
 pointment or warrant, where it is practicable ; and no 
 adjournment of such meeting is to take place, and no 
 new meeting is to be appointed for the aforesaid pur- 
 poses, unless it is unavoidable. (3rd June, 1853 ; Ord. 
 36, s. 5.) 
 
 319. The standing conditions of sale are to be those 
 set forth in schedule 'pt^-'Xsfd June, 1853 ; Ord. 36, s. 
 13.) 
 
 380. The Judge or Master may, without farther or- 
 der, fix an upset price or reserved bidding, where it is 
 thought expedient ; but this must be done at the meeting 
 before mentioned, and it must be notified in the condi- 
 tions of sale. (3wi June, 1853 ; Ord. 36, s. 7.) 
 
 Where the plaintiff on the settlement of the advertisement neglected 
 to ask for a reserved bidding, and the advertisement was issued, liberty 
 to have a ryserved bid was given in Chambers, and the advertisement 
 altered accordingly, Fraser v. Bens, 1 Cham. R. 71. 
 
ORDEEs 381—386. 313 
 
 381. All parties may bid, without taking out an order 
 for the purpose, except the party having the conduct of 
 the sale, and except any trustees, agents, and other per- 
 sons in a fiduciary situation ; and where any parties are 
 to be at liberty to bid, it must be notified in the conditions 
 of' sale. (3rd June, 1853 ; Ord. 36, s. 7.) 
 
 382. The advertisement is to be inserted by the party 
 conducting the sale, at such times and in such manner as 
 the Judge or Master appointed at the meeting before 
 mentioned. (3rd June, 1853 ; Ord. 36, s. 6.) 
 
 383. The Master or his Clerk is to conduct the sale 
 where no auctioneer is employed. (3rd June, 1853 ; Ord. 
 36, s. 7.) 
 
 384. Biddings need not be in writing, but a written 
 agreement is to be signed by the purchaser at the time 
 of sale. (3rd June, 1853 ; Ord. 36, s. 7.) 
 
 A solicitor having the conduct of a sale, cannot withdraw the property 
 offered after a bid has been made, McAlpine v. Toung, 2 Cham, E. 85. 
 
 385. The deposit is to be paid to the vendor, if present, 
 or if not, to his solicitor, at the lime of sale, and is to be 
 forthwith paid by him into Court. (3rd June, 1853 ; Ord. 
 36, s. 7.) 
 
 Where the party having the conduct of the sale, neglects to pay into 
 Court the deposit paid to him by the purchaser at the time of sale, the 
 Court will, on the application of the purchaser, order him to do so, Crooks 
 i>. Olenn, 1 Cham. R. 354. 
 
 386. After the sale is concluded, the auctioneer, where 
 one is employed, is to make the usual affidavit according 
 to the present practice ; and where no auctioneer is em- 
 ployed, the Master or his Clerk is to certify to the same 
 effect. (3rd June, 1853 ; Ord. 36, s. 7.) 
 
314 ORDERS 387^389. 
 
 387. The report on sale is to be in the form set forth 
 in schedule Q, or as near thereto as circumstances permit. 
 
 388. A sale must be objected to by motion to the 
 Court to set aside the same ; and notice of the motion 
 must be served upon the purchaser, and on the other 
 parties to the cause ; but the biddings are only to be 
 opened on special grounds, whether the application is 
 made before or after the report stands confirmed. (3rd 
 June, 1853 ; Ord. 36, s. 10 ; 20th Dec. 1865 ; Ord. 21.) 
 
 ■Where one of the testator's sons bid at a Chancery sale of his father's 
 property, such bidding being by those present supposed to be for himself, 
 but being in reality for another person, who had secretly employed the 
 son to bid under the ezpectalion that there would be less competition 
 against the son than against a stranger, and the property was knocked 
 down to the son, but the contract was signed by the principal, and it 
 appeared that the effect of the son's bidding, had been to deter others 
 from bidding, the Court holding this to be a surprise on the other bidders 
 and an unjust advantage to the purchaser, refused to enforce the pur- 
 chase, and directed n, re-sale at the risk and cost of the purchaser, 
 Sodgert v. Rodgert, 13 Grant, 143. 
 
 Biddings will not be opened and the sale set aside on the ground that 
 a party (the defendant) was prevented from bidding by promises made to 
 him by the purchaser, such fact, if established, would constitute the 
 purchaser a trustee for him, and would be subject for a suit. Brock v. 
 Saul, 2 Cham. R. 145. Si^S^U^c SuiL £Z Si^iJiZP. 
 
 A purchaser at a sale under a decree is not bound by any irregularity 
 in the proceedings so as to cause him to lose the benefit of his purchase, 
 Dickey u. Heron, 1 Cham. E. 149. 
 
 389- At any time after the confirmation of the sale the 
 purchaser may pay his purchase money and interest, if 
 any, or the balance thereof, into Court without further 
 order, upon notice to the party having the conduct of the 
 sale ; and when he is entitled to be let into possession 
 of the estate, he may, if possession is wrongfully with- 
 held from him, proceed at his own expense to obtain an 
 order against the party in possession for the delivery 
 thereof to him, or may call upon the vendor to canse 
 
6 ^'icct^c^ ./^.m^^J-Z-- 
 
 
 
ORDERS 389-392. • 315 
 
 possession to be delivered to him. (3rd June, 1853 ; Ord. 
 36, s. 11.) 
 
 Where money is ordered to be paid into Court, a payment to the 
 solicitor of the party entitled to it is not a good one, and therefore is no 
 ground for dispensing with payment into Cojrt, Blackburn v. Sheriff, 1 
 Cham. R. 208. 
 
 A purchaser of real estale, at a s:;Ie under a decree, will not be ordered 
 to pay the amount of his purchase money into Court until the title has 
 been accepted or approTcd of. Crooks v. Street, 1 Cham. R. 95 ; but see 
 Stewart v. Stewart, 1 Cham. 243. 
 
 If the purchaser neglect to pay in his purchase money, and no objec- 
 tion is made to the title, the Court will order him within a limited time 
 to pay in the amount with interest, and in default direct a re-sale of the 
 property, and that the purchaser pay costs of the motion and deficiency, 
 if any, on re-sale, Crooks v. Crooks, 4 Grant, 376 ; but if the purchaser 
 become insolvent, and unable to complete the contract he will be dis- 
 charged from it. Re Heely, 1 Cham. R. 54 ; and see Re Yaggie, Ibid, 52. 
 
 390. After a sale under an order is confirmed, the ven- 
 dor is, forthwith upon demand, to deliver an abstract of 
 title to the purchaser ; and if the purchaser does not 
 serve objections within seven days, he is to be deemed 
 to have accepted the abstract as sufficient. If objections 
 are served, the vendor is to answer them within lourteen 
 days ; and if the purchaser is still dissatisfied, and if 
 the parties cannot otherwise agree, either party may 
 obtain from the Master a warrant to consider the abstract. 
 
 On moving to make an Order nisi for not delivering an abstract of title 
 absolute, it is necessary to shew that it has not been delivered to either 
 party named in the order, Dick v.McNab, 1 Cham. R. 31. 
 
 391. The Master is to determine all questions upon the 
 abstract and the sufficiency thereof; and, if desired by 
 the purchaser, may require the vendor to make the same 
 as perfect as he can ; and if the vendor neglects or re- 
 fuses to do so, he may permit the purchaser to supply 
 defects therein, at the vendor's expense. 
 
 392. The Master is not to make a report on the abstract. 
 
316 * ORDERS 392—397. 
 
 but is to mark the objections as allowed or disallowed, 
 as the case may be ; and when he finds the abstract per- 
 fect, or as perfect as the vendor can make it, he is to 
 certify to that effect at the foot or on the back ; and such 
 finding is to be final unless appealed from within four- 
 teen days thereafter. 
 
 393- After an abstract is confirmed, or is accepted by 
 the purchaser as sufficient, no objection to the abstract is 
 to be allowed. 
 
 394. After acceptance or confirmation of the abstract, 
 the verification is to be proce eded with, and the vendor 
 is with all diligence to afford the purjhaser all the means 
 of verification in his power, in the manner, and accord- 
 ing to the practice usual with conveyancers ; and after 
 having done so, he may serve a notice on the purchaser 
 to make his objections or requisitions, if any, within 
 seven days, or that otherwise he will be deemed to have 
 accepted the title. 
 
 395. Upon being served with such notice, the purchaser 
 if dissatisfied, is to serve his objections, or requisitions 
 within the time thereby limited ; and the like course is 
 to be followed upon such objections or requisitions as is 
 prescribed by Orders 390, 391, and 392, in relation to the 
 abstract. 
 
 396. In case of the refusal or neglect of the vendor to 
 verify any portion of the abstract to the best of his ability, 
 or to furnish any necessary proof or documents in his 
 power, the Master may authorize the purchaser to do so 
 at the vendor's expense. 
 
 397. The foregoing Orders, 390, 391, 392, 393, 394, 
 395, and 396, are to apply to all cases of reference to the 
 Master as to title, as well as to sales by the Court. 
 

ORDERS 397—401. 317 
 
 XXX.— EXAMINATION PRO INTERE8SE SUO. 
 
 398. Any party who might under the former practice, 
 have moved to be examined pro interesse suo may apply 
 to the Coart, upon motion, for such relief as he may think 
 himself entitled to. (3rd June, 1853 ; Ord. 41, s. 2.) 
 
 Under the former practice the proper course for any person who claimed 
 title to any property sequestered, was to apply to the Court by motion 
 or petition, to-direct the plaintiff to exhibit interrogatories, in order that 
 the party applying might be examined as to his title to the property ; and 
 this mode of proceeding was followed where the property was in the 
 possession of a receiver, Brooks v. Greathead, 1 J. & W. 176 ; ^ngel v. 
 
 Smith, 9 Ves. 836. 
 
 • 
 
 An order for the examination of a party pro interesse suo could not be 
 granted until after the sequestrators had made a return, because, it could 
 not till then appear to the Court what had been sequestered, Lord Pelham 
 V. Duchess of Newcastle, 3 Swanst. 290. 
 
 399. Notice of the motion is to be served upon the de- 
 fendant or defendants at least three weeks before the day 
 fixed for the application. 
 
 400- Within ten days from the service of the notice 
 the aifidavits in answer must be filed. Within six days 
 after the expiration of such ten days, the affidavits in 
 reply are to be filed, and except so far as these affidavits 
 are in reply, they are not to be regarded by the Court, 
 unless upon the hearing of the motion the Court gives 
 leave to answer them ; and in that case the costs of such 
 affidavits, and of the further affidavits consequent upon 
 them, are to be paid by the party moving, unless the 
 Court orders otherwise. No further evidence, on either 
 side, is to be used upon the hearing of the motion, with- 
 out the leave of the Court. 
 
 401. On hearing the motion, the Court may, instead 
 of either granting or refusing the motion, give such 
 directions for the examination of parties or witnesses, 
 or for the making of further inquiries, or for the institu- 
 
318 ORDERS 401 — 404. 
 
 tion of any suit or action, as the circumstances of the 
 case may require. (3rd June, 1833 ; Ord. 41, s. 4.) 
 
 XXXI.— COPIES. 
 
 402. Office-copies of answers, affidavits, and other 
 proceedings are dispensed with ; and where service is 
 required, true copies, instead of office copies, are to be 
 served; but this order is not to apply to bills, decrees, or 
 orders, of which office-copies are by the practice of the 
 Court required to be served. (6th Feb. 1865 ; Ord. 12.) 
 
 A party requiring a copy of any pleading or afSdayit, is to make a. 
 written application for the same to the solicitor of the party by whom it 
 has been filed, or on whose behalf it is to be used ; and where the party 
 has no solicitor, then to the party himself, Ord. 548. Where an applica- 
 tion is made for a copy of any pleading or affidavit, it is to be delivered 
 within forty-eight hours from the time of the demand ; and any further 
 time which may elapse before the delivery is not to be computed against 
 the party demanding the same, Ord. 519. 
 
 This Order, to furnish a copy of a pleading, when demanded is impera- - 
 tive, and the Court will enforce compliance with it, ToUen v. Mac'mtyre, . 
 2 Cham. R. 80. 
 
 If office-copy- of affidavits are demanded, it is imperative on the party 
 filing the affidavits, to furnish them, and the costs of any delay occasioned 
 by his not doing so, falls on the party making default. Burrows v. Hainey, 
 2 Cham R. 186. 
 
 An irregularity in the endorsement on a pleading, of the name and 
 place of business of the solicitor filing it, is waived by demanding and 
 receiving a copy of such pleading, Bennett v. O'Meara, 2 Cham. E. 167. 
 
 403. No more than four copies of any pleading or 
 other proceeding are to be allowed to any party, in a 
 cause or matter, exclusive of the draft, but inclusive of 
 copies to file, copies to serve, briefs, and any other copies 
 that may be required or made in the progress of the 
 cause. (6th Feb. 1865; Ord. 13.) 
 
 404. If more than three copies, exclusive of the draft, 
 are required of any pleading or other proceeding, and 
 the party chooses to have the oleading or proceeding 
 
OHDEKS 404r-407. 319 
 
 printed for the purposes of the suit or matter, he is, in 
 lieu of all charges for copies, to be allowed thirty cents 
 per folio of the pleading or proceeding, and his reasonable 
 disbursements of procuring the same to be printed. (6th. 
 Feb. 1865; Ord. U.) 
 
 405. Every defendant, appearing by a different solici- 
 tor, is entitled to demand from the plaintiff two copies 
 of any printed bill, paying for each copy two cents per 
 folio. (6th Feb. 1865 ; Ord. 15.) 
 
 XXXII.— TIME. 
 
 406- Where any time limited from or after any date 
 or event is appointed or allowed for doing an act, or 
 taking a proceeding, the computation of such time is not 
 to include the day of such date, or of the happening of 
 such event, but is to commence at the beginning of the 
 next following day ; and the act or proceeding is to be 
 done or taken at the latest on the last day of such limited 
 time, according to such computation. (3rd June, 1853 ; 
 Ord. 5, s. 1.) {Eng. Con. Ord. 37, r. 9.) 
 
 If the time limited were a fortnight, commencing on a Monday, it 
 would include the second Monday following, Angell v. Wescombe, 1 M. 
 & C. 48. 
 
 407- Where the time for doing an act, or taking a 
 proceeding expires on a Sunday, or other day on which 
 the offices are closed, and by reason thereof such act or 
 proceeding cannot be done or taken on that day, such 
 act or proceeding is, so far as regards the time of doing 
 or taking the same, to be held to be duly done or taken, 
 if done or taken on the day on which the offices shall 
 next open. (3rd June, 1853 ; Ord. 5, s. 3.) 
 
 Where the day appointed by the master's report for the payment of 
 money fell upon a Sunday, the court refused the final order for foreclosure 
 
320 ORDERS 408—410. 
 
 though the plaintiff attended at the same place, and between the same 
 hours on the Saturday and Monday, Holcomb v. Leach, 3 Grant, 449. 
 
 408. The time of vacation is not to be reckoned in 
 the computation of the times appointed or allowed for 
 the following purposes : 
 
 1. Answering either an original or amended bill ; 
 
 2. Amending or obtaining orders for leave to amend 
 
 bills ; 
 
 3. Setting down demurrers ; 
 
 4. Filing replications, or setttng down causes under 
 
 the directions of Order 152, Order 153, Order 
 154, or Order 155 ; 
 
 5. Master's reports becoming absolute ; 
 
 6. Moving to discharge an order of revivor ; 
 
 7. Moving to add to, vary, or set aside a decree, by 
 
 any party served therewith. (3rd June, 1853 ; 
 Ord. 5, s. 4; 30th June, 1858.) 
 
 409. The day on which an order that the plaintiff do 
 give security for costs is served, and the time thencefor- 
 ward until and including the day on which such security 
 is given, is not to be reckoned in the computation of time 
 allowed a defendant to answer or demur. (3rd June, 
 1853; Ord. 5, s. 5.) 
 
 410. Service upon solicitors, of pleadings, notices, 
 orders, and other proceedings, is to be made between the 
 hours of ten o'clock in the forenoon, and four o'clock in 
 the afternoon, except on Saturdays, when it shall be made 
 between the hours of ten o'clock in the forenoon, and 
 two o'clock in the afternoon. (6th February, 1865 ; 
 Ord. 48.) 
 
ORDERS 411—416. 321 
 
 411. If service is made after four o'clock in the after- 
 noon on any day except Saturday, the service is to be 
 deemed as made on the following day, and if made after 
 two o'clock on Saturday, the service is to be deemed as 
 made on the following Monday. (6th February, 1865 ; 
 Ord. 48.) 
 
 412. The power of the Court, and of a Judge in 
 Chambers, to enlarge or abridge the time for doing an 
 act, or taking a proceeding in any cause or matter, upon 
 such (if any) terms as the facts of the case may require, 
 or to give any special directions as to the course of pro- 
 ceeding in any cause or matter, is unaffected by these 
 orders. (3rd June, 1853 ; Ord. 47.) 
 
 XXXIII.— SITTINGS OF THE COURT. 
 
 413. There are to be three re-hearing terms in each 
 year, commencing respectively as follows : 
 
 1. The third Thursday in February ; 
 
 2. The last Thursday in August ; 
 
 3. The first Thursday in December. 
 
 414. Terms for the hearing of causes (including ex- 
 amination of witnesses) are to be held twice a year, at 
 Toronto, and at such other places as the Court from time 
 to time appoints. 
 
 415- A Judge will sit daily in each week for the des- 
 patch of all business other than re-hearings and Chamber 
 business. 
 
 416. The business before the Judge will be taken as 
 follows : 
 
 Monday. — Causes and demurrers. 
 
322 ORDER 417—420. 
 
 Tuesday. — Motions. 
 
 Wednesday, 1 
 
 Thursday ^ — ^Hearings pro confesso; motions for 
 f- decree ; further directions ; appeals 
 from Master's reports ; petitions. 
 
 Friday, 
 Saturday. 
 
 417- A cause may be set down to be heard pro confesso ^ 
 at any time after the expiration of fourteen days from the 
 date of the order, or note ^jro confesso. (3rd June, 1853 ; 
 Ord. 14, s. 1.) 
 
 418. Causes set down by way of motion for decree, or 
 on bill and answer, or for hearing pro confesso, or for 
 argument of demurrer, or upon further directions, or on 
 appeal from Master's re^jort, or for re-hearing, or upon 
 petition under Order 330, or upon motion or petition to 
 discharge an order of revivor, or to add to, vary, or set 
 aside a decree, are to be entered with the Clerk of Records 
 and Writs at least seven days before the day for which 
 they are set down ; and seven days' notice of the hearing 
 or motion is to be served upon all parties entitled to notice 
 thereof. 
 
 419. Where further directions have been reserved, if 
 the party having the conduct of the cause does not set 
 the same down for hearing on further directions, and 
 serve notice thereof within fourteen days after the confir- 
 mation of the report, any other party affected by the 
 report may set the same down, and serve notice of the 
 hearing. 
 
 420. No cause set down for argument of demurrer, or 
 by way of motion for decree, or on bill and answer, or on 
 appeal from a Master's report, or on further directions, or 
 on any petition mentioned in Order 418, adjourned over 
 from the day for which such cause was originally set 
 
ORDEHs 421—425, 323 
 
 down, is to be brought on for argument during the month 
 of June ; and, except on circuit, no cause is to be heard 
 during the month of June unless counsel certify that no 
 point is involved in it on which it may be necessary for 
 the Court to reserve judgment. 
 
 XXXIV.— VACATIONS. 
 
 421. The long vacation is to commence on the 1st day 
 of July, and to terminate on the 21st day of August in 
 every year. (3rd June, 1853; Ord. 4.) 
 
 422. The Christmas vacation is to commence on the 
 24th day of December in every year, and terminate on 
 the 6th day of the following month of January. {Eng. 
 Con. Ord. 5, r. 4.) 
 
 423. The days of the commencement and termination 
 of each vacation, shall be included in and reckoned part 
 of the vacation. (Eng. Con. Ord. 5, r. 4.) 
 
 424- The offices of the Court shall be open on every 
 day in the year, except during vacation, and on Sundays, 
 New Year's Day, Good Friday, Easter Monday, Christ- 
 mas Day, the days appointed for the celebration of the 
 birthday of Her Majesty, and Her Royal Successors, and 
 any day appointed by Proclamation for a General Fast 
 or Thanksgiving. (Ontario Stat. 31 Vic, ch. 1, s.-6, 
 sub-sec. 13.) 
 
 425. During vacation, the Court will not sit, and the 
 offices thereof are respectively to be closed; but the 
 offices of the Registrar, and Clerk of Records and Writs, 
 are to be open for all purposes of making applications for 
 injunctions; and from ten o'clock in the forenoon till 
 twelve o'clock noon, each day, for such proceedings as do 
 not require the attendance of the opposite party. 
 
324 ORDERS 426—427. 
 
 As to the effect of the offices being closed on pending applications, *e« 
 Flower v. Bright, 2 J. 4 H. 590. 
 
 XXXV.— MORTGAGE SUITS. 
 
 426- Instead of foreclosure, the bill in any mortgage 
 suit, may pray a sale of the mortgaged premises, and that 
 any balance of the mortgage debt remaining due after 
 such sale may be paid by the mortgagor, and the same 
 may be decreed accordingly. (3rd June, 1853; Ord. 32, 
 s. 3.) 
 
 The Court will not make a personal order against the mortgagor under 
 this section, unless asked by the prayer of the bill. 
 
 Where in a bill praying foreclosure only, a decree for sale was drawn 
 up with a direction that the mortgagor should pay any deficiency, the 
 Court, at the instance of the mortgagor, four years afterwards, amended 
 the decree by striking out this direction, but ordered the mortgagor to 
 pay the costs of the proceedings which had been taken under the decree, 
 Cocheiiour v. Bullock, 12 Grant, 138. 
 
 The owner of land, after creating o, mortgage thereon, assigned his 
 equity of redemption to a third party, who covenanted to pay off the 
 mortgage debt, and afterwards became the purchaser of the mortgaged 
 premises, under a decree at the suit of the mortgagee ; the amount realized 
 at the sale not being sufficient to cover the amount due on the mortgage, 
 the mortgagee was held not entitled to any lien on the premises for the 
 deficiency, Forbes v. Adamson, 1 Cham. R. 117. 
 
 Where the decree directs foreclosure, the Court may, on default in pay- 
 ment, grant an order for sale without re-hearing the cause, Zaslett v. 
 Cliff e, 2 Sm. & G. 218 ; overruling, Oirdlealonev. Lavender, 9 Hare, App. 
 53 ; see also, Wayn v. Lewis, 22 L. J. Ch. 1051. But the Court will 
 not after a decree for sale, order a foreclosure without re-hearing the cause 
 and notice of the re-hearing must be served on the defendant, even al- 
 though the bill has been taken pro covfesso, McLellan v. Jacobs, 9 Grant, 
 50. 
 
 427. Where any person is surety for the payment of a 
 mortgage debt, such person may be made a party to a 
 suit for the sale of the mortgaged property, and the relief 
 specified in the last Order may be prayed against both 
 the mortgagor and his surely, and the same may be de- 
 creed accordingly. (3rd June, 1853 ; Ord. 32, s. 4.) 
 
ORDERS 428— 432. 325 
 
 428. The Court may direct a sale of the property, in- 
 stead of a foreclosure of the equity of redemption, on such 
 terms as the Court thinks fit ; and, if the Court thinks 
 fit, without previously determining the priorities of in- 
 cumbrancers, or giving the usual or any time to redeem. 
 (3rd June, 1853 ; Ord. 32, s. 2.) 
 
 Some special ground must be shewn to induce the Court to depart from 
 the ordinary rule of allowing six months for redemption, Rigney v. Fuller, 
 4 Grant, 198. ^tae/ric-Jc<./. C^ir^ . 6/>. ^Y. 
 
 429. If the request for a sale is made by a subsequent 
 incumbrancer, or by the mortgagor, or by any person 
 claiming under them respectively, the party making the 
 request is to deposit in Court a reasonable sum of money, 
 to be fixed by the Court, for the purpose of securing the 
 performance of snch terms as the Court thinks fit to im- 
 pose. (3rd June, 1853 ; Ord. 32, s. 2.) 
 
 430. If before, or upon the deposit to obtain a sale 
 being made, the plaintiff prefers that the sale be conducted 
 by the defendant desiring the sale, he may so elect ; and 
 he is thereupon to notify the defendant of such election. 
 The notice may be to the effect set forth in schedule R. 
 
 The defendant is not entitled to Insist upon a sale instead of a fore- 
 closure ag-aiust the consent of the mortgagee, without paying in the 
 usual deposit, upon his undertalsing the conduct of the sale, Taylor v. 
 Walker, 8 Grant, 506. 
 
 431. Upon the plaintiff's filing with the Registrar a 
 note of such election, and proof of service of such notice, 
 the defendant making the deposit is to be entitled to a 
 return thereof. (20th Dec. 1865 ; Ord. 10.) 
 
 432. Where the cause is heard upon an order to take 
 the bill •pro confesso, in a suit for foreclosure or sale, and 
 no reference as to incumbrances is required, the plaintiff 
 is to produce at the hearing : 
 
326 ORDERS 433—434. 
 
 1. The mortgage deed, and the assignments thereof, 
 
 if any ; 
 
 2. An affidavit which is to state the amount advanced 
 
 upon the security ; the amount paid, whether by 
 receipt of rent or otherwise ; and the amount 
 remaining due for principal and interest, distin- 
 guishing how much for principal and how much 
 for interest. The affidavit is to state whether 
 the mortgaged premises, or any part of them, 
 have been in the occupation of the mortgagee, 
 or of any one under whom he claims ; and, when 
 there has been any such occupation, the affida- 
 vit is to state its nature, the time it continued, 
 and the fair rentable value of the property. 
 (3rd June, 1853 ; Ord. 32, s. 7.) 
 
 433- Upon production of such proofs and documents, 
 the Court may at once determine the amount due, and 
 appoint the time and place for the payment of the mort- 
 gage money, by the decree, without a reference to the 
 Master, or any further enquiry. (3rd June, 1853 ; Ord. 
 32, s. 7.) 
 
 434. In an ordinary suit of foreclosure or sale against 
 an infant heir or devisee of the mortgagor, or of the as- 
 signee of the mortgagor, where no defence is set up in the 
 infant's answer, the cause is not to be set down to be heard 
 in Court by way of motion for a decree ; but after the in- 
 fant's answer is filed, or after the time for filing the same 
 has expired, the plaintiff is to file affidavits ot the due 
 execution of the mortgage, and of such other facts and 
 circumstances as entitle him to a decree, and is to apply 
 for the decree in Chambers, upon notice to the infant's 
 solicitor. (1st April, 1867 ; Ord. 2.) 
 
 In decrees of foreclosure against infant defendants, a day to shew cause 
 after attaining twenty-one, must be reserved to the defendants, Mair v. 
 

ORDERS 435—436. 327 
 
 Kerr, 2 Grant, 223 ; and the final order of foreclosure must also reserve a 
 •day to shew cause. Set. i>ic{t/i. $"3^^ 
 
 But where a decree for foreclosure Is made against the ancestor of the 
 infants, it is not necessary where the suit is revived against the infants, 
 to' insert in the final order a day for the infants to shew cause, Sutherland 
 V. Dickson, 2 Cham. E. 25. 
 
 Infants made parties by revivor, cannot set up a defence which their an- 
 cestor had not set up, unless he had been prevented by fraud or mistake 
 from pleading it, Burke v. Pijne, 2 Cham. R. 193. 
 
 Where the heirs of the mortgagor are infants, and a bill is filed against 
 %em for foreclosure, the rule of the Court is to grant a reference as of 
 course, to enquire whether a sale or foreclosure is more for the benefit of 
 the infants, but if atfidavits are filed to satisfy the Court as to the proper 
 decree, or if the guardian consents, the reference may be dispensed withi 
 Dudley v. Berczy, 13 Grant, 141 ; but see Graham v. Davis, 2 Cham. R. 
 24. 
 
 Where the decree directed an enquiry whether a sale or foreclosure 
 would be more beneficial for the infants, and the report made under the 
 decree did not find in favor of either sale or foreclosure, but was silent on 
 the subject, a final order for sale was refused, Mdwards v. Burling, 2 Cham. 
 R. 48. 
 
 435. Where the defendant answers the bill, admitting 
 the execution of the mortgage and other facts, if any, en- 
 titling the plaintiff to a decree, or where the defendant 
 disclaims any interest in the mortgaged premises, or where 
 no answer is put in to the bill, the plaintiff is, on pre- 
 cipe to the Registrar, to be entitled to such a decree as 
 would under the practice of the Court have been made 
 upon the hearing of the cause pro confesso. (20th Dec. 
 1865 ; Ord. 11. ■><^ ^tcUh. Jy^ G^ru^t^ ^%^./^j^A-^aa. 
 
 Where in a foreclosure suit, an injunction has been granted, the Regis- 
 trar cannot issue a decree on precipe continuing the injunction, but the 
 cause must be brought on for hearing, King v. Freeman, 1 Cham. R. 350. 
 
 Where proceedings are taken against an absent defendant by advertise- 
 ment, a decree cannot be granted upon precipe, McMiehael v. Thrnna), 14 
 Grant, 249. 
 
 436. Where no answer is filed, the decree is to be 
 drawn up upon production of an office-copy of the bill and 
 an affidavit of the service thereof, shewing the same to 
 
328 ORDERS 437—438; 
 
 have been endorsed with the notice set forth in schedule 
 S hereunder written. 
 
 s On taking the account in a foreclosure suit no more can be found due 
 than the amount claimed by the endorsement on the bill, Boyd v. Wilson^ 
 1 Cham. R. 258. 
 
 437. The notice under Order 436, is to specify whether 
 the plaintiff desires a foreclosure of the equity of redemp- 
 tion, or a sale of the mortgaged premises. (20th Dec, 
 1866 ; Ord. 9.) 
 
 Where the eudorsement did not specify whether sale or foreclosure of 
 the mortgaged premises wag sought, the service of the bill was set aside, 
 Drewryv. O'Neil, 2 Cham. R. 204. 
 
 438- Where it appears conducive to the ends of justice 
 that parties interested in the equity of redemption should 
 be allowed to be made parties in the Master's office, by 
 reason of the parties so interested being numerous or 
 otherwise, the Court rhay direct that parties so interested 
 be made parties in the Master's office, upon such terms 
 as to the Court seems fit ; such order to be made only 
 where one or more parlies interested in the equity of 
 redemption are already 'before the Court. (29th June, 
 1861.) 
 
 An order to make persons interested in the equity of redemption, par- 
 ties in the Master's office, will not be granted exparte ; notice should be 
 served on the owners of the equity of redemption already before the 
 Court, but not on those proposed to be added, Penner v. Oaniff, 1 Cham. 
 R. 351 ; but see, Cummina v. Harrison, 1 Cham. R. 369. 
 
 Where after a final order of foreclosure had been obtained, it was sought 
 to add, as a party, a person who had purchased part of the mortgaged 
 property, but who had not been made a party to the suit, either by bill or 
 in the Master's oflice, Vaukoughnet C, though granting a fiat on the pe- 
 tition, expressed a strong opinion that no order could be made thereoni 
 Orford v. Bailey, 1 Cham. R. 2t2. 
 
 See also, Portman v. Paul, 10 Grant, 458. 
 
 Where under an order in Chambers after decree, parties are added as 
 being Interested in the equity of redemption, an application to set aside 
 
ORDERS 439—443. 329 
 
 the order must be made to the Court and not in Chambers, Tyce v. Meyers, 
 3 U. C. L. J. N. S. 102. 
 
 439. Where the bill is filed by a subsequent incum- 
 brancer seeking relief against a prior mortgagee, such 
 mortgagee must be made a party previous to the hearing 
 of the cause. 
 
 440. Where the plaintiff prays a sale or foreclosure, 
 subject to a prior mortga^, the prior mortgagee is not to 
 be made a party either originally or in the Master's office, 
 except under special circumstances to be alleged in the 
 bill. (6th Feb. 1858.) 
 
 441. Decrees for foreclosure or sale, where a reference 
 is required, are, after the proper recitals hitherto in use^ 
 to direct, in general terms, that all necessary enquiries be 
 made, accounts taken, costs taxedj and proceedings had 
 for redemption or, foreclosure, (or for redemption or sale 
 as the case may be) and that for these purposes the cause 
 is referred to (naming the Master ;) and a decree so ex- 
 pressed is to be read and construed as if the same set 
 forth the particulars contained in the next thirteen Or- 
 ders. 
 
 Where a plaintiff in a suit for foreclosure or sale asks a reference to the 
 Master to enquire as to encumbrancers, he takes such a reference at the 
 peril of costs, if there are in reality no incumbrancers, Hamilton a, How- 
 ard, 4 Grant, 581. 
 
 442. Upon such reference the. Master is to inquire and 
 state, whether any person or persons, and who other than 
 the plaintifi^, has or have any lien, charge or incumbrance 
 upon the lands and premises embraced in the mortgage 
 security of the plaintiff, in the bill mentioned subsequent 
 thereto. 
 
 443- The plaintiff is to bring into the Master's office 
 certificates from the Registrar and Sheriff of the County 
 wherein the lands lie, setting forth all the incumbrances 
 
330 ORDERS 444—447. 
 
 which affect the property in the pleadings mentioned, and 
 such other evidence as he may be advised. 
 
 444. The Master is to direct all such persons as appear 
 
 to him to have any lien, charge, or incumbrance upon the 
 
 estate in question, to be made parties to the cause, and 
 
 to be served with a notice in the form set forth in 
 
 schedule T hereunder written. (6th Feb. 1858 ) 
 
 • 
 Persons so added are parties from the date of the Master's order, making 
 
 them so, Sterling v. Campbell, 1 Cham. R. 147. 
 
 When a mortgagee takes proceedings to foreclose against the mort- 
 gagor and the estate of a deceased mesne incumbrancer, the real repre- 
 sentatives of such deceased incumbrancer are not necessary parties, Tuyior 
 o. Stead, 1 Cham. E. 74 ; Grimshaw v. Parks, 6 U. C. L. J. 142. 
 
 445. Any party served with a notice under Order 444 
 may apply to the Court at any time within fourteen days 
 from the date of the service, to discharge the order 
 making him a party, or to add to, vary, or set aside the 
 decree. 
 
 The time of vacation is not to be reckoned in the computation of the 
 fourteen days, Ord. 408. 
 
 446. The Master, before he proceeds to hear and deter- 
 mine, is to require an appointment to the effect set forth 
 in schedule T to be served upon the incumbrancers made 
 parties before the hearing, whether the bill has been 
 taken pro confesso against such persons or not. (6th Feb. 
 1858.) 
 
 447- When any person who has been duly served with 
 a notice under Order 444, or with an appointment under 
 Order 446, neglects to attend at the time appointed, the 
 Master is to treat such non-attendance as a disclaimer by 
 the party so making default ; and the claim of such party 
 is to be thereby foreclosed, unless the Court order other- 
 wise, upon application duly made for that purpose. (6th 
 Feb, 1858.) 
 
ORDER 448. 331 
 
 When a person made a party in the Master's ofiSce appears and dis- 
 claims, he is not entitled to any costs, as by remaining inactive the same 
 end will be attained as by disclaiming, Halt v. Park, 6 Grant, 553 
 
 448. When all parties have been duly served, the 
 Master is to take an account of what is due to the plain- 
 tiff, and to such other incumbrancer or incumbrancers, 
 (if any), for principal money and interest ; and to tax to 
 them their costs and settle their priorities ; and also to 
 appoint a time and place, or times and places, for pay- 
 ment according to the practice of the Court. 
 
 "Where the Master's report, directing the payment of mortgage money 
 on a day being six months from the date thereof, was not dated, and the 
 decree gave six calendar months, a new day for payment had to be taken, 
 Scott V. McKeoum, 1 Cham. R. 186. 
 
 A final order cannot be granted where the Master's report is not con- 
 firmed before the day appointed for payment. Mountain v. Porter, 1 Cham. 
 R. 20*?; Mills V. Dicleson, 2 Cham. R. 53. 
 
 Where before the day for payment arrives, the agency of the Bank at 
 which the money is payable is closed, a new day for payment must be 
 appointed, and the order served. King v. Conner 1 Cham, R. 11i. 
 
 Where the plaintiff desires to dispense with service of an order appoint- 
 ing a new day, on the ground of the defendant being out of the jurisdic- 
 tion, the plaintiff's aflidavit is not sufficient evidence to justify dispensing 
 with service, Adams v. Earner, 1 Cham. R. 260. 
 
 Where there are several incumbrancers and one day is given to them 
 to redeem, or in default foreclosure, and the incumbrancer first in priority 
 redeems, a new account must be taken and a new day for payment ap- 
 pointed, giving the others an opportunity to redeem, Ardagh v. Wilson, 
 1 Cham. R. 389. 
 
 Even after the final order of foreclosure has been obtained the defendant 
 may apply for an extension of the time for the payment of the mortgage 
 money. 
 
 The order is not obtained as of course, and the application will be 
 refused when the excuse for dufault is not satisfactory and the security is 
 not ample. Eyre v. Hanson, 2 Beav. 4Y8 ; Nanny v. Edwards, 4 Russ. 
 124 ; and the Court will not interfere to open foreclosure in aid of a de- 
 fendant who has been guilty of laches and shewn no effort to save hi^ 
 etta,i&, Brothers V. Lloyd, 2 Cham. R. 119; an affidavit by the solicitor 
 that the defendant was exerting himself to raise the money was held in- 
 sufficient, Anon, 4 Grant, 61. 
 
332 ORDERS 449—450. 
 
 The enrolment of the final order is no objection to the application if 
 made promptly, and the Court has the means of giving the mortgagee 
 immediate payment, Tliornhill v. Manning, 1 Sim. N. S, 451. An en- 
 largement of the time may be given oftener than once. 
 
 On applying, the defendant should shew a reasonable excuse for non- 
 payment on the day appointed, a, probability of redeeming at the expiry 
 of the exteaded time, and that the property is ample security, Johnson v- 
 Ashbridge, 2 Cham. R. 251 ; and when the plaintiiF can be placed in the 
 same position he occupied before the default, and recompensed for any 
 damage he may have suffered, and when there appears a prospect of the 
 amount of the mortgage money being paid within the period asked for, 
 the Court will not refuse to open the foreclosure, Waddell v. McOoll, 2 
 Cham. E. 62 ; and see G. v. V. 2 Cham. R. 33. 
 
 Where it was shewn that the defendant was hindered in selling or 
 raising money on the lands in consequence of an advertisement signed 
 and circulated by the plaintiff's solicitor, the time for payment was ex- 
 tended without costs, Gilmour v. Meyers, 2 Cham. R.-1Y9. 
 
 At one period the terms on which an application was granted, appear 
 to have been to require payment of the interest and costs by an early dayi 
 and to extend for six months the period for payment of the principal 
 money, Whattonv. Craddoek, 1 Keen, 269 ; Brewen v. Austin, 2 Keen, 
 211 ; Geldard v. Hornby, 1 Hare, 251 ; and this rule seems still followed 
 where the security is not ample, Fisher on Mortgages, 994. 
 
 The course more generally followed now is to extend the time upon 
 payment of the costs of the application, charging defendant with interest 
 on the gross amount reported due, Holford v. Yale, 1 K. & 3. 611 ; 
 Whitfield V. Roberts, 7 Jur. N. S. 1268; and see Howard v. Macara, 
 I Cham. R. 27. 
 
 449. The Master's report must state the names of all 
 persons who have been made parties in his office, and 
 who have been served with the notice or appointment 
 hereinbefore provided, the names of such as have made 
 default, and must settle the priorities, &c., of such as 
 have attended, and these latter are to be certified as the 
 only incumbrancers upon the estate. (6th Feb. 1858 ; 
 Ord. 6.) 
 
 450. In case of payment by any party according to the 
 report, the party to whom payment is made, is to convey 
 the premises, free and clear of all incumbrances, done by 
 him, and deliver up all deeds and writings in his custody 
 
If**; 
 
 "^ «- ^%^»5^tfc. 
 
 
ORDER 451. 333 
 
 or power, relating thereto, upon oath, to the party making 
 the payment, or to whom he may appoint. 
 
 451. In default of payment being made according to 
 the report, the plaintiff is to be entitled, on an ex parte 
 application, to a final order of foreclosure against the 
 party making default. 
 
 Where co-mortgagees are made co-plaintiffs in a foreclosure suit, the 
 affidavit as to non-payment, on which to obtain the final order of fore- 
 closure, should be made by all of them, Annis v. Wilson, 1 Cham. R. 
 217 ; and the affidavit by the plaintiff should shew that he has not been 
 in possession of the mortgaged property, nor in the receipts of the rents 
 and profits, Scott v. MeDonnell, 1 Cham. R 193. 
 
 Where the mortgagee is in occupation of the mortgaged premises, the 
 Master should charge him with occupation rent up to the day appointed 
 for payment, and where it appeared that a mortgagee had been charged 
 with occupation rent to the d ate of the Master's report only, a final order 
 was refused. Pipe v. Shafer, 1 Cham. R. 251 ; and where the plaintiff's 
 affidavit shewed that he had been in occupation of the property, it was 
 referred back to the Master to take a new accou nt, set an occupation rent 
 and appoint a new day for payment, although the plaintiff swore that he 
 was in occupation merely as caretaker, and had not received any rentg 
 or profits, Cummer V. Tomlinson, 1 Cham. R. 235. 
 
 After the day appointed for the payment of the amount due in a fore- 
 closnre suit, the plaintiff having entered into possession of the mortgaged 
 property, he was held entitled to a final order of foreclosure without a 
 new account being taken, Greenshiell v. Blackwood, 1 Cham. R. 60 ; Con- 
 stable V. Howick, 5 Jur. N. S 831. 
 
 On an application for a final order of foreclosure, where the affidavit 
 of non-payment is made by the plaintiff's agent, it should state that he is 
 authorised to receive the money, Powers v. Merriman, 1 Cham. R. 225 ; 
 but the authority of the agent need not be produced, it is sufficient for 
 him to swear that he is the duly authorised agent, Raddyffe v. Dvffy, 1 
 Cham. R. 302 ; the affidavit must shew where the custody of the mort- 
 gage has been, Rae -o. Shaw, 1 Cham. R. 209. 
 
 Where the affidavit as to non-payment is made by the plaintiff's solici- 
 tor, it must be shewn that the plaintiff has no other agent within the 
 jurisdiction authorised to receive the money, Taylor v. Cuthbert, 1 Cham. 
 R. 240. 
 
 On an application by a company for a final order, the affidavit of the 
 officer of the company as to non-payment, should shew that he is the 
 proper officer to receive the money. Western Assurance Co. v. Capreol 
 1 Cham. R. 227. 
 
334 ORDEKs 452 — 455. 
 
 The certificate under Order 25 T from the Bank officer should shew that 
 the money has not been paid before, as well as on or since the day appoint- 
 ed, Farrell v. Stokes, 1 Cham. R. 201. 
 
 Where an order for sale was taken out ex parte by mistake instead of 
 an order for foreclosure, the Court on an ex parte application will vacate 
 the order for sale and grant an order for foreclosure, MeGUlivray v. 
 Cameron, 1 Cham. E. 197. 
 
 Where two years had elapsed from the day appointed for payment, an 
 ex parte application for a final order of foreclosure was refused, Kirchoffer 
 V. Stafford, 2 Cham. R. 52. 
 
 452. All subsequent accounts are, from time to time, 
 to be taken, subsequent costs taxed, and necessary pro- 
 ceedings had, for redemption by, or foreclosure of, the 
 other party or parties entitled to redeem the mortgaged 
 premises, as if specific directions for all these purposes 
 had been contained in the decree. 
 
 453. If the deoree directs a sale instead of foreclosure 
 on default in payment, then on default being made, and 
 an order for sale obtained, the premises are to be sold, 
 with the approbation of the Masler, and he is to settle 
 the conveyance to the purchaser in case the parties differ 
 about the same ; and the purchaser is to pay his purchase 
 money into Court, to the credit of the cause, subject to 
 the further order of the Court. 
 
 454. The purchase money, when so paid in, is to be 
 applied in payment of what has been found due to the 
 plaintiff and the other incumbrancer or incumbrancers, 
 (if any), according to their priorities, together with sub- 
 sequent interest, and subsequent costs, when computed 
 and taxed by the Master. 
 
 455. In the event of the purchase money beiag insuffi- 
 cient to pay what has been found due to the plaintiflFfor 
 principal interest and costs, subsequent interest and sub- 
 sequent costs, the plaintiff i.s to be entitled, (where the 
 mortgagor is a defendant and such relief is prayed by 
 
OBDERS 456—458. 335 
 
 the bill,) to an order ex parte for the payment of the 
 deficiency. 
 
 As to the order for the payment of any deficiency, see Cochenour v. 
 Bullock, 12 Grant, 138; Forbetv. Adamaon, 1 Cham, R. 117. 
 
 456. An incumbrancer made a party in the Master's 
 office, and entitled to, and desiring a sale of the mortgaged 
 premises, is to make the necessary deposit therefor before 
 the Master's report is settled, whereupon the Registrar 
 is to issue an order on precipe, directing a sale of the 
 mortgaged premises instead of a foreclosure, and there- 
 upon the Master is lo compute subsequent interest, and 
 appoint a time and place, or times and places, for pay- 
 ment ; and all subsequent proceedings are to be taken 
 and had as if the decree had been in the first instance a 
 decree for sale. 
 
 457. Where the state of the account ascertained by an 
 order, or by the report of the Master, is changed by 
 payment of money, by receipt of rents and profits, by 
 occupation rent, or otherwise, before the final order for 
 foreclosure or sale is obtained, the plaintiff", or other party 
 to whom the mortgage money is payable, may give notice 
 to the party by whom the same is payable, that he gives 
 him credit for a sum certain, to be named in the notice 
 and that he claims that there remains due in respect of 
 such mortgage money a sum certain, to be also named in 
 the notice. (29th June, 1861.) 
 
 The notice of credit must be given before the day for payment arriTes, 
 KnoUinger v. Barber, 1 Cham. R. 268. 
 
 458. Upon the final order for foreclosure or sale being 
 applied for, if the Judge thinks the sums named in such 
 notice proper to be allowed and paid under the circum- 
 stances, the order for final foreclosure is to go without 
 further notice, unless the Judge directs notice to be given. 
 (29th June, 1861.) 
 
336 ORDERS 459—462. 
 
 459. The party to whom the mortgage money is pay- 
 able, may apply in Chambers for a reference to a Master, 
 or for an appointment, to fix such sums respectively ; 
 and in the latter case either upon notice, or ex parte, as 
 the Judge thinks fit ; and the order to be made thereupon 
 is to be served, or service thereof dispensed with, as the 
 Judge directs. (29lh June, 1861.) 
 
 460" The party to whom such notice is given may 
 apply in Chambers for an appointment to ascertain and 
 fix the amounts proper to be allowed and paid, instead of 
 the amounts mentioned in such notice ; or for a reference 
 to a Master for the like purpose ; and in case the Judge 
 thinks a reference to a Master proper, the same may be 
 made ex parte unless the Judge otherwise directs. (29th 
 June, 1861.) 
 
 461. Where a suit has been instituted for the fore- 
 closure of the equity of redemption in any mortgaged 
 property, for default in the payment of interest, or of an 
 instalment of the principal, a defendant may move to dis- 
 miss the bill upon paying into Court the amount then due 
 for principal, interest, and costs. (3rd June, 1853 ; Ord. 
 32, s. 5.) 
 
 Upon default in payment of any instalment of principal or interest, the 
 mortgagee has a right to call in the whole amount secured by the mort- 
 gage, Sparks v. Redhead, S Grant, 311; Odmeron v. McRae, Ibid; but a 
 mortgagee who holds several mortgages in fee on the same land, one of 
 which is not due, cannot file a bill to foreclose that mortgage with the 
 others, Thibodo v. Collar, 1 Grant, 14Y. ' 
 
 When a defendant moves to stay proceedings under this section, th^ 
 interest is to be calculated up to the last gale day, and not up to the time 
 of making the application, Strachan v. Murney, 6 Grant, 378. 
 
 A mortgagee is not obliged to accept payment of the whole principal 
 and interest on a mortgage on which only a certain amount is over due, 
 on a bill filed for foreclosure. Green v. Adams, 2 Cham. R. 134. 
 
 462. Where a suit has been instituted for the purpose 
 and under the circumstances specified in the last Order, 
 
'lAAt^i,*, ■^J/'iy ^.u-L..^ ^ cU C\4^ u^ ^"Z^' ^y^»^ ^ir-!^ i£t»».«»_^ 
 
ORDERS 463-464. 337 
 
 a defendant may move to stay the proceedings in the 
 suit, after decree, but before sale or final foreclosure, upon 
 paying into Court the amount then due for principal^ 
 interest, and costs. (3rd June, 1853 ; Ord. 32, s. 6.) 
 
 463. Where an application is made to stay the proceed, 
 ings under Order 462, the decree may afterwards be en- 
 forced, by order of the Court, upon subsequent default 
 in the payment of a further instalment of the principal, 
 or of the interest. (3rd June, 1853; Old. 32, s. 6.) 
 
 After payment under this section of what is due, it is irregular to take any 
 further proceedings in the cause until another instalment falls due, 
 Carroll V. Hopkins, 4 Grant, 431 ; as to the period up to which interest is to 
 be computed, see note to preceding Order. 
 
 Where a stay of proceedings has been ordered and default is made in 
 payment of another instalment of interest, an order will be granted direct- 
 ing payment of the whole sum secured, with liberty to the defendant to 
 pay the sum now actually payable, and directing a stay of proceedings 
 on such payment being made, Straehan v. Devlin, 1 Cham. R. 8. 
 
 464. In a suit for foreclosure or for redemption, the 
 mortgagor or other person entitled to the equity of re- 
 demption, being in possession of the premises foreclosed, 
 may be ordered to deliver up possession of the same upon 
 or after final order of foreclosure, or for the dismissal of 
 the bill, as the case may be. (29th June, 1861.) 
 
 Gi C fHuJ^uU^ tf^U, iff c~m^ /fc. t^ Sc^ n c/U_ 2 9/- 
 
 This section refers only to mortgage cases, and does not apply where 
 the bill in a suit for specific performance is dismissed at the hearing. 
 Mavety v. Montgomery, 1 Cham. E. 21. 
 
 The Court will not make such an order against the tenants of the mort- 
 gagor or owner of the equity of redemption, although such tenancy may 
 have begun afcer the mortgage was made. Bank of Montreal v. KUchum 
 1 Cham. R. nV ; an order for delivery of possession is only made against 
 persons not parties, when they acquired possession pendente lite from a, 
 party to the suit, and have no pretence of having a paramount title 
 though the rule may be somewhat broader in the case of receivers and 
 sequestrators, 5anfc 0/ Upper Canada v. Wallace, 13 Grant, 184. <>v^'?<ic?5 
 
 An order for delivery of possession will not be granted rajoaWe, but 
 notice of motion must be served ; even though the bill has been taken 
 pro confesso; Hodkinsonv. French, 1 Cham. R. 201. 
 
338 ORDERS 465—467. 
 
 After the final order for foreclosure an order for delirery of possession 
 will be granted, although not asked for when the final order was obtained. 
 Lazier v. Ranney, 6 Grant, 323 ; and see Mason v. Seney, 2 Cham. R. 30, 
 
 On moving to commit for contempt in not obeying such an order, it 
 must he shewn that possession was demanded, Nevieux v. Zabadie, 1 
 Cham. R. 13. 
 
 Where more than three years have elapsed between the final order, and 
 the application for delivery of possession, an affidavit is required to shew 
 the circumstances of the possession and the final order, and that the de- 
 fendant has never relinquished possession, Irving v. Munn, 1 Cham. E. 
 240. 
 
 The fact that an ejectment suit has been brought by the mortgagee, 
 and is pending, is no bar lo obtaining the usual order for possession, after 
 final order f6r foreclosure, but in such a case the order will be granted 
 only on the terms of discontinuing the action at law, and paying the costs 
 of it, Moffalt V. White, 1 Cham. R. 227. 
 
 465. Where a mortgagee has proceeded at law upon 
 his security, he shall not be entitled to his costs both at 
 law and in equity, unless the Court sees fit to order other- 
 wise. (6th Feb. 1868; Ord. 7.) 
 
 Where a mortgagee proceeds both at law and in equity, he cannot, in 
 the absence of special circumstances to justify the proceedings, elect to 
 take the Chancery costs instead of those at law, if the defendant objects 
 thereto. Weir v. Taylor, 1 Cham. R 311. 
 
 466. In a redemption suit, if the plaintiff does not re- 
 deem the defendants, or such of them as he is ordered to 
 redeem, the bill need not be dismissed ; but where there 
 are other defendants, in lieu of the bill being dismissed 
 the plaintiff" may be declared foreclosed, and directions 
 may be given, either by the decree or by subsequent 
 orders, as to the relative rights and liabilities of the de- 
 fendants as amongst themselves ; and such proceedings 
 are in such case to be thereupon had, and with the same 
 
 effect, as in a foreclosure suit. (6th Feb. 1865 ; Ord. 24.) 
 ^ V/ii.~r^- o.OHiictJan. X Vl/I, S^MvC-, 68/,. 
 
 XXXVI.— ADMINISTRATION SUITS. 
 
 467. Any person claiming to be a creditor, or a spe- 
 cific, pecuniary, or residuary legatee, or the next of kin,. 
 
/f b/, ^ IzXstri. oLtyi^e-eC /&k l€.A-£ ^^e,/u, ^TuS-e /^cs^'^'^ *^ ^^ e^x.^\s. 
 
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ORDER 467. 
 
 or one of the next of kin, or the heir, or a devisee inter- 
 ested under the will of a deceased person, may apply to 
 the Court upon motion, without bill filed, or any other 
 preliminary proceeding, for . an order for the administra- 
 tion of the estate, real or personal, of such deceased per- 
 son. (3rd June, 1853; Ord. 15, s. 1.) 
 
 The proceedings under this order are intended for simple cases only, 
 ■Acaster v. Jnderson, 19 Beav. 161 ; Rump v. Greenhill, 20 Beav. 512 ; and 
 see, Nudel v. Elliott, 1 Cham. R. 326 ; and where executors are charged 
 with misconduct, a bill must be filed, Re Babcock, S Grant, 409. 
 
 Executor is not chargeable with breach of trust in a suit by adminis- 
 tration summons, but enquiries may be directed as to value of the prop- 
 erty in question, Re Belmante, 6 Jur. N. S. 118 ; and an executor cannot 
 be charged on admission of assets, Re Wiltshire, 8 W. R. 133. 
 
 After an order made upon summons the Court will stay an action at 
 law against the executor, ag after a decree 'obtained upon a bill, Gardner 
 V. Garrett, 20 Beav. 469. 
 
 Administration may be ordered on summons, of effects bequeathed by 
 a married woman under a power, Seviell v. Ashley, 3 D. M. & G. 933. 
 
 .Executors having objected to pay into Court a sum of money, on the 
 ground that it had been paid to their solicitor for watching and protect- 
 ing the interest of the estate upon claims of creditors brought into the 
 Master's office ; held that they were entitled to do so ; as it is the duty of 
 the executors to protect and look after the interest of the estate upon these 
 enquiries, and this they do, not strictly as accounting parties, but in virtue 
 of their representative character, Re Babcock, 8 Grant, 409. 
 
 After notice of motion served for an order to administer the estate of 
 an intestate, a commission may be obtained for the examination of wit- 
 nesses, with a view of establishing the fact that the party applying for 
 the order, is one of the next of kin of the intestate, Farrell v. Cruikshank, 
 1 Cham. R. 12. 
 
 Notice of motion for an administration order having been served on the 
 widow of the intestate as administratrix, the application wag refused) there 
 being no evidence produced that letters of administration had been grant- 
 ed to her. Fowler v. Marshall, 1 Cham. R. 29. 
 
 A motion having been made, upon notice, for an administration order, 
 the order not having been drawn up and no steps having- been taken for 
 four years, an application in Chambers for a direction to the Registrar to 
 draw up the order, wag refused, and new notice required to be served, Re 
 Forrester, 1 Cham. R. 29. 
 
 Where several suits are instituted for administration of a testator's es- 
 tate, and a question arises as to their amalgamation, and the conduct ef 
 
340 ORDERS 468 — 469. 
 
 the cause, the preference will be given to a residuary legatee, or other 
 person who has an interest in the residue, in preference to a creditor, 
 Penny v. Francis, Woodhatch v. Francis, 1 Jur. N. S. 248. 
 
 468. The notice of motion is to be in the form or to 
 the effect set forth in schedule U hereunder written, and 
 must be served upon the executor or administrator. (3rd 
 June, 1853 ; Ord. 15, s. 1.) 
 
 It is no bar to the appointment of a guardian ad litem to an infant de- 
 fendant, in an administration suit, that the application for the guardian 
 is made before the return of the notice of mo 'ion for the administration 
 order, Sarry v, Brazil, 1 Cham. E. 23'7. 
 
 Next of kin are not necessary parties to an administration suit, but 
 should be served with an office-copy of the decree, English v. English, 12 
 Grant, 441. 
 
 469- Upon proof by affidavit of the due service of the 
 notice of motion, or on the appearance in person, or by 
 his solicitor or counsel, of the executor or administrator, 
 and upon proof by affidavit of such other matter, if any, 
 as the Court requires, the Court may make the usual or- 
 der for the administration of the estate of the deceased, 
 with such variations, if any, as the circumstances of the 
 case require ; and the order so made is to have the force 
 and effect of a decree to the like effect made on the hear- 
 ing of a cause between the same parties. (3rd June, 
 1853; Ord. 15, s. 1.) 
 
 Some evidence of the applicants having a right to call for administra- 
 tion of the estate must be furnished, jRe Clarke, 2 Cham. R. 67. 
 
 The facts that the estate is small, that no imputation is made against 
 the executors, and that it is unadviaable to incur legal expenses, are no 
 answer to a motion for administration by a legatee against the executors 
 Re Falconer, 1 Cham. R. 273. 
 
 Where in an administration suit the whole of the real and personal es- 
 tate of the intestate was insufficient to pay the creditors, the heir at law 
 and administratrix were allowed their costs as between solicitor and cli- 
 ent, Tardrew v. Howell, Perry v. Howell, 1 Jur. N. S. 937 ; 9 W. R. 296. 
 
 A party appealing from a decree in an administration suit successfully, 
 was allowed the costs of the appeal out of the estate, Menzies v. Ridley, 2 
 Grant, 544. 
 

<av«L-^ 
 
 
ORDERS 470—473. 341 
 
 Costs ought to be given out of the estate, for those proceedings only 
 which are commenced for the benefit of the estate, or which have in their 
 result been of benefit, Barthtt v. Wood, 9 W. R. SlV ; see also as to costs, 
 Maddison v. Chapman, 1 J. cSk H. 470 ; Barnewell v. Iremonger, 1 Dr. & Sm. 
 255 ; Sullivan v. Sevan, 20 Beav. 399 ; JVorris v. Bell, 9 Grant, 23 ; Millar 
 V. McNaughlen, 11 Grant, 808 ; Blain v. Terryherry, 12 Grant, 221. 
 
 470. The Court is to give any special directions touch- 
 ing the carriage or execution of the order, which it deen^s 
 expedient ; and in case of applications for any such order 
 by two or more persons, or classes of persons, the Court 
 may grant the same to such one or more of the claimants 
 as it thinks fit ; and the carriage of the order may be 
 stibsequently given to any party interested, and upon 
 such terms as the Court may direct. (3rd June, 1853 ; 
 Ord. 15, s. 1.) 
 
 Although proceedings in the Master's office may, under the general 
 order, be taken ex parte, against a defendant who has allowed a bill to be 
 taken pro confesso, that mode of proceeding is irregular under an admin- 
 istration order without bill, He Pattison, 12 Grant, it. 
 
 471. An order for the administration of the estate of a 
 deceased person may be obtained by his executor or ad- 
 ministratorj>and all the provisions of the foregoing Orders 
 are to extend to applications by an executor or adminis- 
 trator. (3rd June, 1853 ; Ord. 15, s. 2.) 
 
 472. No accounts or inquiries in respect of the real es- 
 tate are to be directed, unless notice of the applicaticm 
 has been given to the heirs and devisees interested there- 
 in, or one or more of them. (20th Dec. 1865 ; Ord. IS.) 
 
 473- After inquiries directed in respect of the personal 
 estate, the Court may, in a proper case, after notice given 
 to those interested in the real estate, or to one or more of 
 them, make a supplemental order in respect of the real 
 estate, upon such terms as the Court sees fit. (20th Dec. 
 1865 ; Ord. 13.^1 A ^ c^ ^ i^^-^ut^ iuj, '^w'Z^yivc^ /^ 
 
342 ORDERS 474—477. 
 
 474. In taking an account of a deceased's personal es- 
 tate under an order of reference, the Master is to enquire 
 and state to the Court what, if any, of the deceased's per- 
 sonal estate is outstanding or undisposed of; and is also 
 to compute interest on the deceased's debts from the date 
 of the decree, and on legacies from the end of one year 
 after the deceased's death, unless any other time of pay- 
 m'ent is directed by the will. ^3rd June, 1853 ; Ord. 42, 
 s. 14.) 
 
 475. Every advertisement for creditors affecting the es- 
 tate of a deceased person, which is issued pursuant to an 
 order, is to direct every creditor, by a time to be thereby 
 limited, to send to such other party as the Master directs, 
 or to his solicitoi", to be named and described in the ad- 
 vertisement, the name and address of such creditor, and 
 the full particulars of his claim, and a statement of his 
 account, and the nature of the security (if any) held by 
 him ; and such advertisement is to be in the form set out 
 in schedule V form No. 1, with such variations as the 
 circumstances of the case require ; and at the time of di- 
 recting such advertisement, a time is to be fixed for ad- 
 judicating on the claims. (20th Dec. 1866 ; Ord. 22.) 
 
 476. No such creditor need make an affidavit, or at- 
 tend in support of his claim (except to produce his secu- 
 rity, if any), unless he is served with a notice requiring 
 him so to do, as hereinafter provided. (20th Dec. 1865 ; 
 Ord. 23.) 
 
 477. Every such creditor is to produce before the Mas- 
 ter, the security (if any) held by him, at such time as is 
 specified in the advertisement for that purpose, being the 
 time appointed for adjudicating on the claims ; and every 
 creditor, if required by notice in writing, to be given by 
 the executor or administrator of the deceased, or by such 
 other party as the Master directs, in the form set forth in 
 
t)RDEKs 478—481. 343 
 
 •schedule V form No. 2, is to produce all other deeds and 
 documents necessary to substantiate his claim before the 
 Master, at such time as is specified in the notice. (20th 
 Dec. 1865 ; Ord. 24.) 
 
 478. In ease a creditor neglects or refuses to comply 
 ■with the next preceding Order, he is not to be allowed 
 any costs of proving his claim, unless the Master other- 
 wise directs. (20th Dec. 1865 ; Ord. 25.) 
 
 479. The executor or administrator of the deceased, or 
 such other party as the Master directs, is to examine the 
 claims sent in pursuant to the advertisement, and is to 
 ascertain, as far as he is able, to which of such claims the 
 estate of the deceased is justly liable. (20th Dec. 1865 ; 
 Ord. 26.) 
 
 480. The executor or administrator, or one of the ex- 
 ecutors or administrators, or such other party either alone 
 or jointly with his solicitor, or other competent person, or 
 otherwise, as the Master directs, is, at least seven clear 
 days before the day appointed for adjudication, to file an 
 affidavit which may be in the form No. 3, in schedule V, 
 verifying a list of the claims, the particulars of which 
 have been sent in pursuant to the advertisement, and stat- 
 ing to which of such claims, or parts thereof, respectively, 
 the estate of the deceased is, in the opinion of the depo- 
 nent, justly liable, and his belief that such claims, or parts 
 thereof respectively, are justly due, and proper to be al- 
 lowed, and the reasons for such belief. (20th Dec. 1865 ; 
 Ord. 26.) 
 
 481- In case the Master thinks fit so to direct, the mak- 
 ing of the affidavit referred to in the next preceding Order, 
 is to be postponed till after the day appointed for adjudi- 
 cation, and is then to be subject to such directions as the 
 Master may give. (.20th Dec. 1865 ; Ord. 27.) 
 
344 ORDERS 482—484. 
 
 482. At the time appointed for adjudicating upon the 
 claims, or at any adjournment thereof, the Master may 
 allow any of the claims, or any part thereof respectively, 
 without proof by the creditors, and may direct such in- 
 vestigation of all or any of the claims not allowed, and 
 require such further particulars, information, or evidence 
 relating thereto, as he thinks fit, and may, if he so thinks 
 fit, require any creditor to attend and prove his claim, or 
 any part thereof ; and the adjudication on such claims as 
 are not then allowed is to be adjourned to a time to be 
 
 then fixed. {20th Dec. 1865 ; Ord. 28.-)/^ a^^^^- ^ 
 Mn/,tay etc/,&,rs Z/f$t. S'6'6- ' 
 
 483. Notice is to be given by the executor or adminis- 
 trator, or such other party as the Master directs : 
 
 1. To every creditor whose claim, or any part there- 
 
 of, has been allowed without proof by the cred- 
 itor, of such allowance, and such notice may be 
 in the form No. 4 in schedule V. 
 
 2. And to every such creditor as the Master directs 
 
 to attend and prove his claim, or such part there- 
 of as is not allowed, by a time to be named in 
 such notice, (which may be in the form No. 5 in 
 schedule V,) 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 has been adjourned ; and 
 in case any creditor does not comply with such 
 notice, his claim, or such part thereof as afore- 
 said, is to be disallowed, unless the Master 
 Ihinks fit to give further time. (20th Dec. 1865 ; 
 Ord. 29.) 
 
 484- A creditor who has not before sent in particulars 
 of his claim pursuant to the advertisement, may do so- 
 seven clear days previous to any day to which the adju- 
 dication is adjourned. (20th Dec. 1865 ; Ord. 30.) 
 

ORDERS 485—488. 345 
 
 485. After the time fixed by the advertisement, no 
 claim is to be received (except as before provided in case 
 of an adjournment,) unless the Master thinks fit to give 
 special leave upon application, and then upon such terms 
 and conditions as to costs and otherwise as the Master 
 directs. (20th Dec. 1865; Ord. 31.) 
 
 486. Where an order is made for payment of money 
 out of Court to creditors, the party whose duty it is to 
 prosecute such order is to send to each creditor, or his so- 
 licitor (if any,) a notice that the cheques may be obtained 
 from the Registrar ; and such notice may be in form No. 
 6 in schedule V, and such party is, when required, to 
 produce any papers necessary to enable the creditors to 
 receive their cheques. (20th Dee. 1865 ; Ord. 32.) 
 
 487. Every notice by these Orders, required to be given: 
 is, unless the Master otherwise directs, to be deemed suffi- 
 ciently given and served if transmitted by post, prepaid, 
 to the creditor to be served, according to the address given 
 by the creditor in the claim sent in by him pursuant to 
 the advertisement, or, in case the creditor has employed' 
 a solicitor, to such solicitor, according to the address^ 
 given by him. (20th Dec. 1865 ; Ord, 33.) 
 
 XXXVIL— ALIMONY SUITS. 
 
 488- Where the plaintiff in an alimony suit requires^ 
 irtferim alimony, and costs, there is to be endorsed on the 
 office-copy of the bill served, or served therewith, a notice 
 to the following effect : " Take notice that the plaintiff 
 demands as interim alimony, until the hearing of this 
 cause, the monthly (or weekly) sum off to be paid to 
 her on the day of each month {or week) at , 
 
 and costs, according to the rules of the Court." 
 
 As to Alimony suits, see Con. Stat. TJ. C , c. 12, s. 29 and notes. 
 
346 ORDER 489—492. 
 
 489. No application for interim alimony, or costs, is to 
 be made until the time for answering has expired. 
 
 490. The defendant may, at any time before the answer 
 is due, give notice in writing that he submits to pay the 
 interim alimony, and costs, as demanded by the notice ; 
 and in that case no order is to be taken out until there 
 has been a default in payment ; and in case of default, 
 affidavits being filed verifying the two notices and the 
 default, the order is to be issued on precipe. 
 
 491. The interim costs to the serving of the bill and 
 notice inclusive, are to be $20 ; and thence to the hearing 
 inclusive, (in a contested suit,) the further sum of $40? 
 exclusive of mileage on serving papers and witnesses' 
 fees ; and if the defendant pays the former sum to the 
 plaintiff 's solicitor on or before the day his answer is due, 
 and the latter sum on or before the day for which the 
 cause is set down to be heard, and pays the mileage 
 and witnesses' fees when demanded of his solici or, no 
 order is to be made for interim costs, except of applica- 
 tions to the Court. 
 
 XXXVIII.— QUIETING TITLES. 
 
 492. Under the Act for Quieting Titles to Real Estate 
 in Upper Canada, the petition for an investigation of title 
 is not to include two or more properties dependant on 
 separate and distinct titles ; but mayjinclude any number 
 of lots or parcels belonging to the same person, and de- 
 pendant on one and the same chain of title. (31st Aug. 
 1867 ; Ord. 1.) 
 
 In the petition a loose indefinite description of the property as " part 
 of lot, — " not saying what part should be avoided. If the land has been 
 for some time in the occupation of any person, it may be proper to state, 
 
 " now and for some time occupied by ." So if it adjoins any well 
 
 known property, or property occupied Jby some public company, it may 
 be advisable to describe it as so adjoining. 
 

ORDERS 493—495. 347 
 
 In the body of the petition the description should be as certain as the 
 conveyance, to identify the land claimed with the Registrar's certificate, 
 and in order that the certificate of title may follow it. For the 
 same reasons the petition should properly describe the estate or interest 
 in the land claimed by the petitioner. 
 
 493. Where an applicatioa is made under the second 
 section of the Act, the Clerk of Records and Writs is to 
 attend one of the Judges with the petition for directions? 
 before the same is referred for investigation, (31st Aug. 
 1867; Ord. 2.) 
 
 The first section of the Act for Quieting Titles enables any owner of 
 an estate in fee simple in land in Upper Canada, or any trustee for the 
 sale of the fee simple to have his title judicially investigated. By the 
 second section a Judge is given a discretion to permit " any other person 
 who has any estate or interest, legal or equitable, in or out of land in 
 Upper Canada," to apply for the investigation of his title, and a declara- 
 tion of the validity thereof. 
 
 494- A petition under the Act may, at the option of 
 the petitioner, be referred to any of the officers of the 
 Court at Toronto, or to any conveyancing Counsel, who 
 may from time to time be designated by the Court for the 
 purpose ; or to any of the following Local Masters, viz, 
 the Masters at Barrie, Belleville, Brantford, Brockville, 
 Cobourg, Cornwall, Goderich, Guelph, Hamilton, King- 
 ston, Lindsay, London, Ottawa, Owen Sound, Peter- 
 borough, Sandwich, Sarnia, Simcoe, Stratford, St. Cath- 
 arines, Whitby, and Woodstock ; or to any other of the 
 Local Masters who shall hereafter be designated. (31st 
 Aug. 1867; Ord. 3.) 
 
 495. To facilitate the proceedings in cases referred to 
 the Local Masters, one or more Inspectors of Titles will 
 be named by the Court, for the purposes, and with the 
 powers mentioned in and provided for by the 25th and 
 26th sections of the said Act ; and on the petition are to 
 be endorsed the names of the Inspector, or one of the 
 Inspectors, as the case may be, and of the Local Master, 
 
348 ORDERS 496—499. 
 
 thus : " To be referred to the Master at , and 
 
 to Mr. , Inspector of Titles." (31st Aug. 
 
 1867; Ord. 4.) 
 
 496. Petitions filed unendorsed with the name of a 
 Referee, are to be referred to the Referee, in Toronto or 
 to one of the Referees in Toronto (if more than one) in 
 rotation or otherwise as the Court from time to time 
 directs ; but a petition indorsed with the name of any 
 Referee is to be referred to him accordingly, unless the 
 Court otherwise directs. (31st Aug. 1867 ; Ord. 5.) 
 
 497. Where the petitioner desires the reference to a 
 Local Master, the petition is to be entered with the In- 
 spector of Titles before being filed as required by the 
 Statute, and the Inspector is to note thereon the day of 
 entering the same, adding to such note his own initials, 
 and is thereupon to deliver the petition to the solicitor, 
 or, if duly stamped, to the Registrar, to be filed. (31st 
 Aug. 1867 ; Ord 6.) 
 
 498. The Local Master shall be entitled to confer or 
 correspond from time to time with the Inspector of Titles, 
 for advice and assistance on questions of practice or evi- 
 dence, or other questions arising under the Act or under 
 these Orders. (31st Aug. 1867 ; Ord. 7.) 
 
 499. The Clerk of Records and Wirits is to deliver to 
 the party filing a petition under the Act, a certificate of 
 the filing thereof, for registration in the proper County ; 
 and thereupon the petition is forthwith to be referred and 
 ■delivered or posted by the Clerk of Records and Writs to 
 the Referee named for that purpose. (31st Aug. 1867 ; 
 Ord. 8.) 
 
 Until the certificate of filing the petition is registered the particulars 
 required by sec. 5 of the Act cannot be delivered to the referee, as until 
 then certified copies of memorials " up to the time of the regis-tering of 
 
• ORDERS 500—504. 349 
 
 a certificate of the petition" as required by sec. 5, sub-sec. 2, cannot be 
 procured. 
 
 500. The particulars necessary under the fifth section 
 of the Act to support the petition are to be delivered or 
 sent by the petitioner or his solicitor to the Referee, and 
 are to be forthwith examined and considered by him. 
 (31st Aug. 1867 ; Ord. 9.) 
 
 See notes to 29 Vic. c. 25, 3. 5. 
 
 501- In every case of an investigation of the title to 
 property under the said Act, the petitioner is to shew, by 
 aflBdavit or otherwise, whether possession has always ac- 
 companied the title under which he claims the property, 
 or how otherwise, or is to shew some sufficient reason 
 for dispensing with such proof either wholly or in part. 
 (31st Aug. 1867; Ord. 10.) 
 
 502. Where there is no contest, the attendance of the 
 petitioner, or of any solicitor on his behalf, is not to be 
 required on the examination of the title, except where, 
 for any special reason, the Referee directs such attend- 
 ance. (31st Aug. 1867; Ord. 11.) 
 
 503. If, on such examination as aforesaid, the Referee 
 finds the proof of title defective, he is to deliver or 
 mail to the. petitioner, or to his solicitor or agent, a 
 memorandum of such finding, stating shortly therein what 
 the defects are. (31st Aug. 1867; Ord. 12.) 
 
 504- When the Referee finds that a good title is shewn, 
 he is to prepare the necessary advertisement, and the 
 same is to be published in the official Gazette and in any 
 other newspaper or newspapers in which the Referee 
 , thinks it proper to have the same inserted ; and a copy 
 of the advertisement is also to be put up on the door of 
 the Court House of the County where the land lies, and, 
 unless the ' nearest Post Office is in a city, in some 
 
350 ORDERS 505 — 507. 
 
 conspicuous place in the Post Office which is situate 
 nearest to the property the title of which is under 
 investigation ; and the Referee is to endorse on the ad- 
 vertisement so prepared by him, the liame or names of the 
 newspaper or newspapers in which the same is to be 
 published, and the number of insertions to be given therein 
 respectively, and the period (not less than four weeks) 
 for which the notice is to be continued at the Court 
 House and Post Office respectively. (31st Aug. 1867 ; 
 Ord. 13.) 
 
 One or at most two insertions in the Gazette will usually be sufficient. 
 
 505. Any notice of the application to be served or 
 mailed under the fourteenth section of the Act, is to be 
 prepared by the Referee ; and directions are in like man- 
 ner to be given by him as to the persons to be served with 
 such notice, and as to the mode of serving the same. 
 (31st Aug. 1867; Ord. 14.) 
 
 Sec. 14 req'.iires, in cases where there appears to exist any claim adverse 
 to or inconsistent with that of the petitioner to or in respect of any part 
 of the land, that the Judge shall direct such notice as he deems necessary 
 to be mailed to or served on the adverse claimant, his solicitor, attorney^ 
 or agent. 
 
 506. The Inspector, or Toronto Referee, is from time 
 to lime to confer with one of the Judges in respect of 
 matters before such Inspector or Toronto Referee, as there 
 shall be occasion. (31st Aug. 1867; Ord. 15.) 
 
 507. When any person has shewn himself, in the 
 opinion of a Local Master, to be entitled to a certificate 
 or conveyance under the Act, and has published and 
 given all the notices required, the Master is to write at 
 the foot of the petition, and sign, a memorandum to the 
 following effect : " I am of opinion that the petitioner is 
 entitled to a certificate of title {or conveyance) as prayed" 
 (or subject to the following incumbrances, &c., as the 
 
ORDERS 508—509. 351 
 
 case may be) ; and is to transmit the petition (if by mail, 
 the postage being prepaid,) with the deeds, evidence, and 
 other papers before him in reference thereto, to the In- 
 spector of Titles with whom the petition was entered ; 
 and the Inspector is to examine the same carefully, and 
 should he find any defect in the evidence of title, or in 
 the proceedings, he is, by correspondence or otherwise, to 
 point the same out to the petitioner, or his solicitor, or to 
 the Master, as the case may be, in order that the defect 
 may be remedied before a Judge is attended with the pe- 
 tition and papers for approval. (31st Aug. 1867; Ord. 
 16.) 
 
 508. When the Inspector, or other Referee (not being 
 a Local Master,) finds that the petitioner has shewn him- 
 self entitled to a certificate of title, or a conveyance under 
 the Act, and has published and given all the notices re- 
 quired, the Inspector, or Referee (not being a Local Mas. 
 ter,) is to write at the foot of the petition, and sign a 
 memorandum to the same effect as is required from a 
 Local Master, and is to prepare the certificate of title, or 
 conveyance, and is to engross the same in duplicate, one 
 being on parchment or parchment paper ; and is to sign 
 the same respectively at the foot or in the margin thereof ; 
 and is to attend one of the Judges therewith, and with 
 the deeds, evidence, and other papers before him in ref- 
 erence thereto ; and on the certificate or conveyance being 
 signed by the Judge, the Inspector or other Referee afore- 
 said, as the case may be, is to procure the same to be 
 signed by the Registrar, and registered ; and the Clerk 
 of Records and Writs is to deliver or transmit the same, 
 when so signed and registered, to the petitioner, his so- 
 licitor, or agent, for registration in the proper County. 
 (31st Aug. 1867; Ord. 17.) 
 
 509. When a certificate of title or conveyance under 
 the Act has been granted, the Inspector or Referee may> 
 
352 ORDERS 510—513. 
 
 without further order, deliver, on demand, to I lie party 
 entitled thereto, or his solicitor, all deeds and other evL 
 dances of title, not including affidavits made, and evidence 
 given in the matter of the title ; and is to take his receipt 
 therefor. (31st Aug. 1867; Ord. 18.) 
 
 510. Every Inspector and other Toronto Referee is to 
 keep a book, and to preserve therein a copy of all his let- 
 ters under these Orders, and is to prepare monthly, for the 
 information of the profession, a memorandum of poiats 
 of practice decided in matters under the Act. (31st Aug. 
 1867 ; Ord. 19.) 
 
 511. The fees of solicitors and counsel, and the fees 
 payable by stamps, for proceedings under the said Act, 
 are, respectively, to be the same as for like proceedings in 
 suits. (31st Aug. 1867.; Ord. 20.) Z/fSianZ-S-ZS. 
 
 512. The Referee is, in lieu of all other fees, to be en- 
 titled to a fee of fifty cents for every deed in the chain of 
 title, other than satisfied mortgages ; and Referees who 
 prepare the certificate or conveyance, are to have a fee of 
 four dollars, for drawing and engrossing the same in du. 
 plicate. Besides these fees, the Referee is to have the 
 same fees in respect of proceedings occasioned by any 
 defects in the proof of title, which shall be mentioned in 
 the Referee's memorandum referred to in Order 503, as 
 are payable to the Master in respect of similar proceed, 
 ings in suits. No further or other fee is to be payable to 
 the Referee in respect of any of the proceedings by or 
 before him under the said Act ir> an uncontested case, 
 (31st Aug. 1867; Ord. 21.) 
 
 513- In a contested case, the Referee is, in addition, to 
 be entitled, in respect of the proceedings occasioned by 
 the contest, to the same fees therefor as are payable to 
 him for the like proceedings in suits. (31st Aug. 1867 ; 
 Ord. 22.) 
 
ORDERS 514—518. 353 
 
 514. The fee of the Inspector of Titles on entering the 
 petition with him is eight dollars, and no further fee is to 
 be paid him for correspondence, examination of the title, 
 drawing and engrossing certificate or conveyance, or for 
 any other matter or thing done under the petition. (31st 
 Aug. 1867; Ord. 23.) 
 
 515. The applicant or his solicitor is to pay, or prepay, 
 as the case may be, all postages and other expenses of 
 transmitting letters or papers. (31st Aug. 1867; Ord. 
 
 24.) 
 
 516. Petitions under the thirty-fifth section of the Act 
 are to be filed and proceeded with in the same manner 
 (as nearly as may be) as petitions for an inSefeasible title 
 and the fees of officers, solicitors, and counsel, are to be 
 the same as in respect of the like proceedings in suits. 
 (31st Aug. 1867; Ord. 25.) 
 
 XXXIX.— INFANTS AND PERSONS OF UNSOUND 
 MIND. 
 
 517. In the case of an infant defendant, under the age 
 of ten years, a copy of the bill of complaint is not to be 
 served, on the* infant personally, but is to be delivered to 
 or left at the dwelling-house of, the person with whom, or 
 under whose care, the infant is residing at the time of the 
 service ; and if more defend&nts than one under the said 
 age live with, or under the care of, the same person, one 
 copy only is to be served for all such infant defendants. 
 (20th Dec. 1865; Ord. 1.) 
 
 518. An order to take a bill pro confesso, against a de- 
 fendant who at the time of the making of such order is an 
 infant, or person of weak or unsound mind, unable of 
 himself to defend the suit, is of no validity. (3rd June 
 1853 ; Ord. 13, s. 5.) . ' 
 
 as 
 
354 ORDER 519. 
 
 519. In caae it shall appear to the Court that any de- 
 fendant upon whom an office-copy of a bill has been 
 served is an infant, or a person of weak or unsound mind 
 not so found by inquisition, unable of himself to defend 
 the suit, the Court, upon the application of the plaintiff, 
 at any time after bill filed, may order that one of the so- 
 licitors of the Court be assigned guardian of such defen- 
 dant, by whom he may answer the bill and defend the 
 suit. (3rd June, 1853 ; Ord. 13, s. 5.) 
 
 Notice should be served on, or left at the dwelling house of the person, 
 under whose care the defendant is, Taylor v. Ansley, 9 Jur. 1055 ; and 
 where the father and mother of the infant were living apart, and the in- 
 fant had absconded and could not be found to be served, notice was 
 directed to be served at the residence of the mother, that being the last 
 place of residence of the infant, Bigger v. Beaty, 1 Cham. R. 236 ; service 
 on the head of a College of which the defendant was an under graduate, 
 held good service, Christie v. Cameron, 4 W. E. 689 ; Whilmarsh v. Fori 
 1 Cham. B. 357. Where the infant is a married woman a guardian mast 
 be appointed, Colman v. Northcote, 2 Hare, 141 
 
 Though the rule applies to infants residing abroad, O'Brien v. Mailland, 
 10 W. E. 275 ; Anderson v. Slather, 10 Jur. 383 ; yet where an infant de- 
 fendant, having no substantial interest in the suit, was abroad, service of 
 notice of the application was dispensed with, Lambert v. Turner, 1 9 W. 
 R. 335 1 Turner v. Sowden, 2 Dr. A Sm. 265 ; and see Chafers v. Baker, 5 
 D. M. & G. 482 ; Lingren v. Lingren, 1 Beav. 66. 
 
 Where an absent defendant is an infant the Court has lilce powers aa %a 
 granting an order for service by publication as in case of an adult, Duffg 
 V. O'Connor, 1 Cham. E. 393. 
 
 Where a guardian ad litem dies or leaves the Province, a new one will 
 be appointed without notice, Harper v. Harper, 1 Cham. E. 217 ; Weldon 
 ». Templeton, 1 Cham. E. 360. 
 
 The Court will not, even at the request of the infant defendants, in an 
 amicable suit, appoint the plaintiff's solicitor theii guardian, James vj 
 Robertson, I Cham. R. 197. 
 
 On moving to have a guardian ad litem appointed to a person of unsound 
 mind, it must be shewn that he has not been so found by inquisition, 
 Crawford v. Birdsall, 1 Cham. E. 70. 
 
 Where the lanatic has been so found by inquisition, the committee of 
 his estate generally applies to be appointed guardian, to answer and de- 
 fend th» suit which is ordered of ccurse, 1 DanieU's Chaa. Pr. 172 ; but if 
 
ORDERS 520—523, 355 
 
 'he lias no committee, oi the committee has an adverse interest; a guardian 
 will be appointed, Howhtt «. Wilbraham, 5 Mad. 423 ; Worth v. McKenzie^ 
 3 Mac. & G. 363. 
 
 520 Notice of the application must be served upon, or 
 left at the dwelling-house of, the person with whom, or 
 under whose care the defendant resides, at least one 
 week before the hearing of the application ; and where 
 the defendant is an infant, not residing with or under the 
 care of his father or guardian, notice of the application 
 must also be served upon, or left at the dwelling house of, 
 the father or guardian, unless the Court at the time of 
 hearing the application, thinks fit to dispense with such 
 service. (3rd June, 1853; Ord. 13, s. 5.) 
 
 See notes to preceding order. 
 
 521. Notice of application for the appointment of a 
 guardian ad litem to an infant defendant of the age of 
 fourteen years or upwards, is to be served upon such in- 
 fant personally, unless the Court otherwise directs, and 
 is also to be served as directed by the preceding Order. 
 (20th Dec. 1865 ; Ord. 2.) 
 
 522. When infants, or persons of unsound mind not so 
 found by inquisition, are made parties to suits after de» 
 cree, or are served with notice of motion under Order 467, 
 guardians ad litem are to be appointed for them in like 
 manner as they are now appointed at any time after bill 
 filed. (8th Nov. 1856.) 
 
 It is no bar to the appointment of a guardian ctd litem to an infant de^ 
 fendant, in an administration suit commenced by notice of motion, that 
 the application for a guardian is made before the return of the notice of 
 motion for administration, Sarry v. Brazil, 1 Cham. R. 237. 
 
 523. Where a person required to be served with an 
 ofRce-copy of a decree, pursuant to Order 60, is an infant 
 or a person of unsound mind not so found by inquisition, 
 the service is to be effected upon such person or persons. 
 
356 ORDERS 523—528. 
 
 and in such manner, as the Master before whom the ref- 
 erence under the order is being prosecuted directs. (1st 
 April, 1867 ; Ord. 10.) 
 
 524. At any time during the proceedings before a Mas- 
 ter under an order, the Master may, if he thinks fit, re- 
 quire a guardian ad litem to be appointed for any infant, 
 or person of unsound mind not so found by inquisition, 
 who has been served with an office-copy of the de3ree. 
 < 1st April, 1867; Ord. 11.) 
 
 525- Guardians ad litem for infants or persons of un- 
 sound mind not so found by inquisition, who shall be 
 served with an office-copy of a decree, are to be appointed 
 in like manner as guardians ad litem to answer and de- 
 fend, are appointed in suits on bill filed. (1st April, 
 1867; Ord. 12.) 
 
 526- A person desirous of appointing a guardian for 
 •him to defend a suit, may go before a Judge or Master 
 with the proposed guardian if he thinks fit to do so. But 
 be must satisfy the Judge or Master by affidavit that the 
 proposed guardian is a fit person and has no interest ad- 
 verse to t|jat of the person of whom he is to be the guar- 
 dian in the matter in question ; and if the affidavit is not 
 sufficient for this purpose, the Judge or Master may ex- 
 amine the proposed guardian, or the person making the 
 affidavit, viva voce, or require further evidence to be ad- 
 duced until he is satisfied of the propriety of the appoint- 
 ment. (6th June, 1853 ; Ord. 2.) 
 
 521. A petition lor the sale or other disposition of the 
 feal estate of an infant, is to be intituled in the matter of 
 She infant. (3rd June, 1853 ; Ord. 37, s. 1.) 
 
 See notes to Con. Stat. U. C, c. 12, bs. 50, 51, 62, 53, 54, and 55. 
 
 328. The petition is to be presented, in the name of the 
 amfant, by his guardiar, or by* a person applying by the 
 
ORDERS 629—532. 35!?, 
 
 same petition to be appointed guardian, as hereinafter 
 provided. (3rd June, 1853 ; Ord 37, s. 2.) 
 
 529. The petition is to state the nature and amount of 
 the personal property to which the infant is entitled — the 
 necessity of resorting to the real estate — its nature, value 
 and the annual profits thereof. It must also state cir- 
 cumstances sufficient to justify the sale or other dispo-" 
 sition of the estate, and the applicati on of the proceeds in; 
 the manner proposed. The prayer must state specifically 
 the relief that is desired ; it must designate the lands to. 
 be disposed of, and must propose a scheme for that pur- 
 pose, and for the appropriation of the proceeds. If an 
 allowance for the meintenance is desired, it must be so 
 prayed, and a case must be stated to justify such an or- 
 der, and to regulate the amount. 3rd June, 1853 ; Ord. 
 37, s. 3.) 
 
 530. The petition may pray for the appointment of a 
 guardian, as well as for the disposal of the Infant's estate.. 
 In that case a proper case must be made by the petition,, 
 and established by the evidence, for the appointment oi, 
 the person proposed. (3rd June, 1853 ; Ord. 37, s. 3. 
 
 531. Upon all petitions;for the sale of an infant's estate,, 
 the infant is to be produced before a Judge in Chambers,, 
 or before a Master. (3rd June, 1853 ; Ord. 37, s. 5.) 
 
 532 Wheye the infant is above the age of seven years 
 he is to be examined, apart, by the Judge or Master, upon 
 the matter of the petition, and as to his consent thereto, 
 as required by the Statute ; and his examination is to be 
 stated to have been taken under this Order, and is to be 
 annexed to and filed with the petition. Where the infant 
 is under the age of seven years, the fact is to be certified 
 by the Judge or Master before whom he is produced. (3rd 
 June, 1853; Ord. 37, s. 6.) 6j'mc^c<^Jf£,S./9Z. 
 
S58 ORDERS 533—538. 
 
 5S3. The witnesses to verify the petition are also to be 
 produced before the Judge, or Master, and are to be ex- 
 amined viva voce to the matter of the petition, and the 
 depositions so talien are to be slated to have been taken 
 under this Order. (3rd June, 1853 ; Ord. 37, s. 7.) 
 
 534. The Masters of the Court are authorized to ex- 
 amine infants and witnesses under the preceding Order, 
 without special order or reference. (3rd June, 1853 ; 
 
 ^Ord. 37, s. 8.) 
 
 535. Upon a petition so verified, the Court may either 
 grant the relief prayed at once, or make such order as to 
 further evidence, or othervirise, as the circumstances of 
 the case require. (3rd June, 1853 ; Ord. 37, s 9.) 
 
 536- Where, by an order, a day is reserved for an in- 
 ant defendant to shew cause, it shall not be necessary to 
 issue a subpcena to shew^ cause against the order, but the 
 plaintiff is to serve the defendant after he attains twenty- 
 one years of age, with an office-copy of the order, endorsed 
 •with a notice in the form set forth in schedule W. 
 
 See notes to Order 434. 
 
 537- Committees of the persons and estates of lunatics, 
 idiots, and persons of unsound mind, and guardians, ex- 
 cepting guardians ad litem, are to be appointed in the 
 same manner as Receivers, as nearly as circumstances 
 will permit. (Srd June, 1853 ; Ord. 38, s. 2.) 
 
 For the mode of appointing a Receiver, see Ord, 2T8 et seq. 
 
 XL.— MISCELLANEOUS. 
 
 538- No suit is to be open to objection on the ground ■ 
 that a merely declaratory decree or order is sought there- 
 by ; and the Court may make a binding declaration of 
 right without granting consequential relief. (3rd June, 
 1853 ; Ord. 28.) (Imp. Act, 15 <^ 16 V., c. 86, s. 50.) 
 
ORDERS 538-540 359 
 
 It has been held by L. J. Turner that the Oonrt has no power, under 
 this order, to declare future rights, Lady Langdale v. Briggs, 8 D. M. & G. 
 391 ; and the Court has refused to make declarations as to the intecesta 
 of parties entitled in reversion, GaHkk v. Lawson, 10 Hare, App. 14 '. 
 Greenwood v. Sutherland, Ibid, 12. Such declaration will not be made 
 except where necessary for the administration of an estate, or in order to 
 grant relief, Gosling v. Goslmg, 1 John, 265 ; Fyfe v. jTbulhnot, 1 DeG. 
 & J. 406 ; Bell v. Cade, 10 W K. 38. 
 
 Where some of the parties are infants, and therefore unable to bind 
 themselves, the Court has no power, even by consent, to decide a purely 
 legal quesiion, so as to bind the infants, Webb v. Byng, 8 D. M. & G. 633. 
 
 A plaintiff cannot have a prospective declaration guarding against a 
 claim which may never be made, Jackson v. Turnley, 1 Drew. 617 ; nor a 
 decree declaratory of a merely legal right, Trustees of BirJceTihead Docls 
 V. Laird, 18 Jur. 883. 
 
 This order does not apply unless the plaintiff would be entitled to con - 
 Beqaential relief if he chose to ask it, Mooke v Lord Kensington, 2 K & J- 
 753 ; Bristow v. WHtmore, 4 K. ife J. 743 ; Mackl-rm v. Cummings, 7 Grant 
 318 ; when a declaration is asked and also an injunction, snch injunction 
 is conseqnential relief, Marsh v. Kedh, 1 Dr. & Sm. 342; 9 W. R. 115. 
 
 539. Where, accordingto the former practice, the Court 
 was in the habit of refusing equitable relief until the par- 
 ty seeking such relief had established his legal title or 
 right in a proceeding at law, the Court will itself deter- 
 mine such title or right without requiring the party seek- 
 ing relief to proceed at law to establish the same ; but the 
 Court may require the right or title to be established at 
 law, whenever it considers that course expedient. (3rd 
 June, 1853 ; Ord. 26.) 
 
 Where the Court requires an action at law to be brought to establish 
 the right or title of the party seeking relief, an application for a new trial 
 must be made to the Court of Law in which the action is brought, and 
 not to the Court of Chancery, Hope v. Hope, 10 Beav. 581 . 
 
 Where the claim of a creditor is disputed in an administration suit, the 
 Court cannot direct an action at law, but must try the whole question. 
 Baylisv. Watkins, 8 Jur. N. S. 1165. 
 
 540. In all cases where, according to the present prac- 
 tice, a reference to the Master would be directed, the 
 Court may dispose of such matters itself, if it thinks fit, 
 
360 ORDERS 541—543. 
 
 and may direct the proceedings to be taken in full Court, 
 or in Chambers, as it finds expedient. (3rd June, 1853 ; 
 Ord. 33, s. 1.) 
 
 541- The Court may obtain the assistance of account- 
 ants, merchants, engineers, actuaries, or other scientific 
 persons, in such way as it thinks fit, the better to enable 
 it to determine any matter in evidence in any cause or 
 " proceeding, and may act on the certificate of such per- 
 sons. (3rd June, 1853; Ord. 33, s. 2.) {Imp. Act, 15 
 fy 16 v., c. 80, s. 42.)^u cui^Uy/n &>ti/ififtne4j.^&7c/eati 
 
 As to the eCfect of the powers given by this section in extending the 
 jurisJiction of Equity, see ilfcJn/osA w. Great Western Railway Co., 3 Sm- 
 (feG. 146; Mildinay V. Methuen, I Drew. 216; 16 Jur. 965. As to the 
 employment of accountants, i?e ioncfon, iJirmiiij'Aam §■ Bucks Rail. Co., 
 C W. R. 141 ; and they need not always be employed in the presence of 
 the parties, Ibid. 
 
 f ' 
 
 542. Where on a proceeding before an officer of the 
 Court, pleadings or other documents, filed with another 
 officer of the Court, are required, the officer with whom 
 
 he pleadings or other documents are filed, is, upon pro- 
 duction of a certificate signed by the officer requiring the 
 pleadings or other documents, that the same are required 
 for some proceeding before him, to transmit the pleadings 
 ^r other documents mentioned in the certificate. 
 
 Where pleadings or other documents are required at the hearing, their 
 transmission may be procured under Order 165. 
 
 "Where documents are required in another Court, the Court will not 
 order production of the original document unless satisfied that an office- 
 copy is insufficient, Jervis v. White, 8 Ves. 313 ; Attorney- General v. Hay, 
 6 Beav. 335 ; 2 Ha. 518 ; 3 Ha. 835 ; Anon, 13 Beav. 520 ; and the app;i- 
 '^ation for an order must be on notice, Lamb v. Dauby, 9 W. R. 165. 
 
 543. Where such documents are to be transmitted 
 from one officer of the Court in Toronto to another, they 
 are to be transmitted by delivering the same to the officer 
 requiring the same, or his clerk. 
 
OEDKHS 544 — 548 361 
 
 544. Where such documents are to be transmitted by 
 : an officer o£ the Court in Toronto to one in an outer Coun- 
 ty, or from an officer in an outer County to one in Toronto, 
 they are to be sent by parcel post, or by express, and, be- 
 fore they are sent, the paj-ty requiring their transmission 
 is to deposit a sufficient sum to cover the expense of 
 transmission, and of re-transmission to the office from 
 which they are sent. 
 
 545. As soon as the purpose for which any such docu- 
 ments are required is completed, the officer to whom 
 they have been sent is to re-transmit them to the office 
 from which they were sent. 
 
 546. All defences are to be presented to the Court by 
 demurrer or answer, or both, according to circumstances. 
 (3rd June, 1853 ; Ord. 10.) 6 P'ia.dAU, ^e^. 28^ 
 
 XLI.— SUPPLEMENTARY ORDERS. 
 
 547. Office copies of decrees to be served on persons 
 made parties in the Master's office, may be certified by 
 the Deputy Registrar at the place where the reference is 
 being prosecuted. (5th Oct. 1859.) 
 
 548- A party requiring a copy of any pleading or affi- 
 davit is to make a written application for the same to 
 the solicitor of the party by whom it has been filed, or on 
 whose behalf it is to be used ; and where the parly has 
 no solicitor, then to the party himself. (3rd. June, 1853 ; 
 Ord. 43, s. 4.) 
 
 Taking an oflSce-copy of an answer for want of which defendant is in 
 contempt is a waiver of the contempt, Hirntt v. Reynolds, 6 Jur. IS. Si 
 880. 
 
 An irregularity in the endorsement on a pleading of the name and 
 place of business of the solicitor filing it, is waived by demanding and re- 
 ceiving a copy of the pleading, Bennett \. O'Meara, 2 Cham. R. 16 T. 
 
362 ORDERS 549—551. 
 
 54S. Where an application is made for a copy of any 
 pleading or affidavit, it is to be delivered within forty- 
 eight hours from the time of the demand ; and any further 
 time which may elapse before the delivery is not to be 
 computed against the party demanding the same. (3rd 
 June, 1853 ; Ord. 43, s. 4.) 
 
 The order to furnish an office-copy of a pleading or affidavit, when de- 
 manded, is imperative, and the Court will enforce compliance with iti 
 Tolten V. Macintyre, 2 Cham. R. 80. If copied of affidavits are demanded 
 it is imperative on the pairty filing the affidavits to furnish them, and the 
 costs of any delay occasioned by his not doing so fall on the party making 
 default, Burrows v. Hainey, 2 Cham. R. 186. 
 
 DEOLARATORY ORDERS. 
 
 17th October, 1868. 
 
 5.50. In Orders 88 and 120, the word " month " is to 
 be read as luaar month ; in Order 200 the word " shall " 
 is to be read as permissive ; in Order 288 the words 
 " with the Registrar " are to be struck out ; and in 
 Schedules C. D. N. and S. the word " Registrar" is to 
 be struck out wherever the same occurs, and the words, 
 " Clerk of Records and Writs" inserted in lieu thereof 
 
 551. In accordance with the practice heretofore pre- 
 vailing in the office of the Registrar, the fee of $2, pay- 
 able on setting down a cause with the Clerk of Records 
 and Writs, is to be payable only on the setting down of 
 causes for examination and hearing, or motion for decree, 
 or on bill and answer ; in all other cases the fee on 
 setting down a cause is to be fifly cents. 
 
 The following fees, which before the naming of a Clerk 
 of Records and Writs, were payable to the Registrar, ar^ 
 
ORDER 552. 363 
 
 now to be payable in the office of the Clerk of Records 
 and Writs : — 
 
 Every Certificate for Registration 0.50 
 
 Enrolling Order 0.60 
 
 Drawing Order, per folio 0.20 
 
 Entering same when necessary, per folio 0. 10 
 
 Entering Certificate of Title or Conveyance, per fo. 0.10 
 
 552. A notice of motion under Order 467, is to be 
 served upon all proper parties at least fourteen days 
 before the day named for hearing the application. 
 
SCHEDULES. 
 
 SCHEDULE A. 
 
 Endorsement on Office-Copy of a Decree^ served under 
 Order 60. 
 
 " Take notice, that from the time of the service hereof, you (or, 
 as the case may be, the infant, or person of unsound mind) will be 
 bound by the proceedings in this cause in the same manner as if you 
 (or, the said infant, or person of unsound mind) had been originally 
 made a party to the suit : and that you (or, the said infant, or per- 
 son of unsound mind) may, upon service of notice upon the plaintiff, 
 attend the proceedings under the within decree ; and that you (or, 
 the said infant, or person of unsound mind) may, within fourteen 
 days after the service hereof, apply to the Court to add to, vary, or 
 set aside the said decree : A. B., of the City of Toronto, in the 
 County of York, Plaintiff's Solicitor. 
 
 SCHEDULE B. 
 Forms of Bills, referred to in Order 75. 
 
 1. By a legal or equitable mortgagee, or person entitled to a lien 
 as a security for a debt, seeking foreclosure or sale, or otherwise to 
 enforce his security. 
 la Chancery. 
 
 Between A. B. , Plaintiff, 
 
 and 
 
 C. D., Defendant. 
 
 City or Toronto. 
 
 To the Hdnourable the Judges of the Court of Chancery. 
 
 The BUI of Complaint of A. B., of the City of Toronto, in the 
 County of York, Merchant ; 
 Sheweth as follows : 
 
 1. Under and by virtue of an Indenture (or other document,) 
 dated, &c., and made, &c., (and a transfer thereof, made by inden- 
 
366 APPENDIX. 
 
 ture, dated, dec, and made, d)C.,) the plaintiff is a mortgagee (or, an 
 equitable mortgagee) of (or, is entitled to hold a lien upon) certain 
 freehold property (or leasehold, or other property, as the ease may be) 
 therein comprised, being (insert a general description of the property), 
 for securing the sum of $ and interest : 
 
 2. The time for payment has elapsed, and no sum has been paid 
 
 on account of principal or interest, (or, $ has been paid on 
 
 account of principal, and $ on account of interest). 
 
 3. There is now due under and by virtue of the said Indenture 
 
 of mortgage, for principal money the sum of $ , and for 
 
 interest the sum of $ . 
 
 4. The plaintiff has not been in occupation of the said mortgaged' 
 premises, or of any part thereof, (or, the plaintiff has been in tht 
 
 occupation of the premises, or of some part thereof, from the 
 
 day of — in the year to the day 
 
 qf — — — — — in the year ). 
 
 5. The defendant C. D., is entitled to the equity of redemption 
 in the said lands (or, the premises subject to such lien). 
 
 The plaintiff therefore prays : 
 
 That he may be paid the said sura 
 
 of $ , and interest thereon, 
 
 and the costs of this suit ; and in 
 default thereof, that the equity of 
 redemption in the said lands may 
 ba foreclosed. 
 
 (Or, that in default thereof the 
 said mortgaged premises may be sold 
 and the produce thereof applied in 
 or towards payment of the said debt 
 and costs). 
 
 (That the Defendant G. D. wwii/ be 
 ordered to pay tlie balance of the 
 said mortgage debt an3 costs after 
 dedticting the amount realized by 
 such sale). 
 
 That for the purposes aforesaid all 
 proper directions may be given and 
 accounts taken. 
 
368 APPENDIX. 
 
 upon payment of the principal money 
 and interest and costs due and owing 
 upon the said mortgage. 
 
 That for the purposes aforesaid all 
 proper directions may be given and 
 accounts taken. 
 
 That the plaintiff may have such 
 further or other relief as the nature 
 of the case may require. 
 
 ^ And the plaintiff will ever pray. 
 
 3. By a person entitled to an account of the dealings and 
 transactions of a partnership dissolved or expired, seeking such 
 account. 
 
 In Chanceky. 
 
 Between A. B., Plaintiff, 
 
 and 
 C. D., Defendant. 
 
 City of Toronto. 
 
 To the Honourable the Judges of the Court of Chancery. 
 
 The Bill of Complaint of A. B., (fee. 
 Shbweth as follows : 
 
 1. From the day of down to the 
 
 ^ay of the plaintiff and the defendant 0. D. , carried on 
 
 the business of in partnership under certain articles of co- 
 partnership dated, (fee, and made between 
 
 [parties], [or uiidcr a verbal agreement made between the plaintiff 
 and G. D., or through their respective agents S. F. and 0. H.] 
 
 2. The said co-partnership was dissolved (or expired) on the 
 day of . 
 
 The plaintiff therefore prays : 
 
 That an account of the partnership 
 dealings and transactions, between 
 the plaintiff and the said C. D. may 
 be taken, and the affairs and busL 
 ness of the said partnership wound 
 
APPENDIX. 
 
 369 
 
 up and settled under the direction 
 of this Honourable Court. 
 
 That for the purposes aforesaid all 
 . proper directions may be given and 
 accounts taken. 
 
 That the plaintiff may have such 
 further or other relief as the nature 
 of the case may require. 
 
 And the plaintiff will ever pray. 
 4. For dissolution of co-partnership. 
 
 In Chancebt. 
 
 Between A. B., Plaintiflf. 
 
 and 
 C. D., Defendant. 
 
 City op Tobonio. 
 
 To the Honourable the Judges of the Court of Chancery. 
 
 The Bill of Complaint of A. B., (fee. 
 Sheweth as follows : 
 
 1. The plaintiff and the defendant 0. D., are and have been 
 
 since the day of co-partners in the trade or business 
 
 of under articles of co-partnership dated, (fee, and made 
 
 between, &c., (or, under a verbal agreement made, <lcc.) which 
 
 partnership was to continue for-^ years (or for an indefinite 
 
 time.) 
 
 2. The said business was carried on under the said agreement 
 until without any difficulty warranting dissolution. 
 
 3. From the last mentioned day until the present time the said 
 C. D. has greatly misconducted himself in the said business, by re- 
 moving the books of the co-partnership from the shop or counting 
 house of the firm, and denying the plaintiff or debarring him from 
 access thereto, by discharging the clerks and servants of the said 
 firm and engaging others in his own interest in their room ; by 
 making false entries in the said books, or improperly keeping the 
 
370 APPENDIX. 
 
 4. The said defendant has also used the name of the firm for his 
 own private purposes, and has applied the moneys of the partnershid 
 to his own individual use. 
 
 5. There is nothing in the said articles or agreement of co-part, 
 nership to justify such conduct on the part of the defendant. 
 
 6. The plaintiff has made frequent applications to the said defen- 
 dant to desist from such conduct and to act in accordance with the 
 said agreement and with "his duty as a partner, but without effect. 
 
 7. The plaintiff, on the day of gave notice to the 
 
 said defendant that the said partnership would be dissolved from 
 the day of . 
 
 The plaintiff therefore prays : 
 
 That the said partnership may be 
 dissolved, and that the accounts of 
 the said business may be taken from 
 the commencement thereof, and the 
 affairs thereof wound up and ad- 
 justed. 
 
 That the plaintiff may have such 
 further or other relief as the nature 
 of the case may require. 
 
 And the plaintiff will ever pray, 
 
 5. BiU by a person entitled to specific performance of an agree 
 ment for the sale or purchase of any property, seeking such specific, 
 performance. 
 
 In Chancery. 
 
 Between A . B. , Plaintiff, 
 
 and 
 C. D., Defendant. 
 
 City of Toronto. 
 
 To the Honourable the Judges of the Court of Chancery. 
 
 The Bill of Complaint of A. B., (fee, 
 Sheweth as follows : 
 
 1. By an agreement dated the day of 
 
 End signed by the defendant C. D. , the said defendant contracted 
 
APPENDIX. 371 
 
 to buy of the plaintiflf (or to sell him) certain freehold (or leasehold) 
 property therein described or referred to, for the sum of | 
 
 2. The plaintiff has made or caused to be made to the said CD 
 application specifically to perform the said agreement on his part, 
 but he has not done so. 
 
 The plaintiff therefore prays : 
 
 That the said agreement may be 
 specificically performed, and for that 
 purpose that all proper directions 
 may be given, the plaintiff hereby 
 offering to perform the said agree- 
 ment on his part. 
 
 That the plaintiff may have such 
 further or other relief as the nature 
 of the case may require. 
 
 And, (fee, 
 
 6. Bill for the specific performance of a parol agreement partly 
 performed. 
 
 In ChancbrYi 
 
 Between A. B.,., Plaintiff, 
 
 and 
 0. D., Defendant. 
 
 City of ToROifio. 
 
 To the Honourable the Judges of the Court of Chancery. 
 
 The Bill of Complaint of A. B., &c. 
 ■Sheweth as foliow.s. 
 
 1. The defendant C. D. being or pretending to be seised in fee 
 simple in possession of lot No. — , in, &c., "the plaintiff and the said 
 
 C. D. on or about the day of entered into a verbal 
 
 agreement for the purchase by the plaintiff of the said lot of land 
 
 at or for the price or sum of payable, (fee, with interest, 
 
 and upon payment thereof a proper conveyance was to be executed 
 of the said premises free from incumbrances. 
 
 2. The plaintiff was accordingly admitted and entered into poasea- 
 
372 APPENDIX. 
 
 ion of the said lot and has continued in possession thereof ever since 
 and is still in possession thereof. 
 
 3. The plaintiff has made divers and considerable improvements 
 
 thereon and has paid the sum of , part of the said purchase 
 
 money. 
 
 4. The plaintiff submits that under the circumstances aforesaid 
 the said agreement has been partly performed so as to entitle the 
 plaintiff to a specific execution thereof. 
 
 5. The plaintiff made and caused to be made frequent applications 
 to the said C. D. for the purpose of obtayiing a specific execution 
 of the said agreement, but without effect. 
 
 The plaintiff therefore prays : 
 
 That the said contract may be spe- 
 cifically performed by the said CD., 
 the plaintiff being ready and will- 
 ing and hereby offering to perform 
 the same in aU respects upon his 
 part. 
 
 That the plaintiff may have such 
 further or other relief as the nature 
 of the case may require. 
 
 And, (fee. 
 
 7. BiU to stay waste. 
 
 In Chanceky. 
 
 Between A. B., Plaintiff. 
 
 and 
 C. D., Defendant. 
 
 City of Toeonto. 
 
 To the Honourable the Judges of the Court of Chancery. 
 
 The Bill of Complaint of A. B., &c. 
 
 Shewbth as follows : 
 
 1. The plaintiff is and has been from before the acts hereinafter 
 •complained of until the present time seised in fee simple (or, as the 
 case may be) under and by virtue of an Indenture, &c., bearing date 
 &c., and made between, &c., of lot No. — , <fec. 
 
APPENDIX. 373 
 
 2. The defendant C. D. is in possession of the said lot as tenant 
 for a term of years (or, as the case may he) of the plain- 
 tiff under and by virtue of an Indenture of demise, <fec. , bearing 
 date, (fee, and made between, <fec. 
 
 3. The said defendant has since the day of 
 
 committed waste upon the said lot by cutting down and removing 
 from off the said lot and applying to his own use a large number of 
 the timber and other trees standing, growing, and being thereon, 
 and also by quarrying a large quantity of stone being on and part of 
 the said lot and by pulling down, &c., houses, &o., 
 
 4. The defendant continues and threatens and intends to contin- 
 ue to commit such waste as aforesaid, and other waste and destruc. 
 tion of the said lot, although frequently requested by the plaintiff 
 to desist therefrom. 
 
 The plaintiff therefore prays : 
 
 That the said C. D., may be re- 
 strained by the order and injunction 
 of this Honourable Court from com- 
 mitting such waste as aforesaid, or 
 any other "waste, spoil, or destruction 
 on the said premises, and may ac- 
 count for the waste already commit- 
 ted. 
 
 That the plaintiff may have such 
 further or other relief as the nature 
 of the case may require. 
 
 And, <fec. 
 8. Bill to stay trespass in the nature of waste. 
 In Chancery. 
 
 Between A. B., Plaintiff, 
 
 and 
 C. D., Defendant. 
 
 City op Toeonto. 
 
 To the Honourable the Judges of the C jurt of Chancery, 
 
 The Bill of Complaint of A. B., &c. 
 
APPENDIX. 375 
 
 The Bill of Complaint of A. B. <fcc. 
 Sheweth as follows : 
 
 1. Under an Indenture dated, <fec., and made between, tkc, 
 plaintiff is entitled to an equitable estate or iuterest in certain 
 property therein described or referred to, and the defendant C. D., 
 is a trustee for the plaintiff of the said property. 
 
 2. The plaintiff being desirous to prosecute an action at law 
 
 against in respect of such property, has made, or caused 
 
 to be made, an application to the said defendant to allow the plain- 
 tiff to bring such action in his name and has offered to indemnify 
 the defendant against the costs of such action. 
 
 3. The said defendant refuses to allow his name to be used by the 
 plaintiff for the purpose of the said action. 
 
 The plaintiff therefore prays : 
 
 That he may be allowed to prose- 
 cute the said action in the name of 
 the said defendant CD., the plain- 
 tiff hereby offering to indemnify him 
 against the costs of such action. 
 
 That the plaintiff may have such 
 further or other relief as the nature 
 of the case may require. 
 
 And, (be. 
 
 10. BUI by a person entitled to have a new trustee appointed in 
 
 a case where there is no power in the instrument creating the trust 
 
 to appoint new trustees, or where the power cannot be exercised, 
 
 and seeking to appoint a new trustee. 
 
 • 
 In Chancery. 
 
 Between A. B., Plaintiff, 
 
 and 
 0. D., Defendant. 
 
 City of Tokonto. 
 To the Honourable the Judges of the Court of Chancery. 
 The Bill of Complaint of A. B., <fec. 
 
376 APPENDIX. 
 
 Shbweth as PoiLows : 
 
 1. Under an Indenture dated, &c., and made between, &c., (or 
 the will of,) the plaintiff is interested in certain trust property there, 
 in mentioned or referred to. 
 
 2. The defendant CD. is the present trustee (or the real or 
 personal representative of the last surviving trustee) of such pro- 
 perty. 
 
 3. There is no power in the said Indenture (or will, dsc.) to ap. 
 point new trustees (or the power in said wUl, ttc. , to appoint new 
 trustees cannot be exercised.) 
 
 The plaintiff therefore prays : 
 
 That new trustees of the said 
 trust property may be appointed in 
 the place of (or to act in conjunc- 
 tion with) the said 0. D. 
 
 That the plaintiff may have such 
 further or other relief as the nature 
 of the case may require. 
 
 And, &c. 
 
 SCHEDULE C. 
 
 Endorsement on a Bill of Complaint, re/erred to in 
 Order 86. 
 
 Your answer is to be filed at the office ot the * [Begistrar] at 
 Osgoode Hall, in the City of Toronto, (or, when the bill is filed in 
 an outer County, at the office of the Deputy Registrar at ). 
 
 You are to answer or demur within four weeks from the service 
 hereof, (or, when the defendant is served out of the jiirisdiction, 
 within the time limited by Order 90. ) 
 
 If you fail to answer or demur within the time above limited, you 
 are to be subject to have such decree or order made against you as- 
 
APPENDIX. 
 
 377 
 
 the Court may think just, upon the plaintiff's own shewing ; and if 
 this notice is served upon you personally, you will not be entitled 
 to any further notice of the future proceedings in the cause. 
 
 NoTS.— This Bill is filed by A. B., of the City of Toronto, in the 
 County of York, solicitor for the above named plaintiff ; (or where 
 
 {he party who fiks the billis agent, say agent of E. F., of —— 
 
 solicitor for the above named plaintiff.) 
 
 Notice in case of an absconding defendant, referred to in 
 Order 100. 
 
 To the order directing publication, the following notice is to be- 
 added : — 
 
 C. D. , take notice that if you do not answer or demur to the bUl 
 pursuant to the above order, the plaintiff may obtain an order to 
 take the bUl as confessed against you, and the Court may grant such 
 relief as he may be entitled to on his own shewing, and you will 
 not receive any further notice of the future proceedings in the 
 cause. 
 
 Your answer is to be filed at the office of the *[Registrar] at Osgoode 
 Hall, in the City of Toronto, {or, when the biU is filed in an ovier 
 
 county, at the office of the Deputy Registrar at — ■ . ) 
 
 * " Clerk of Records and Writs," see Ord. 550. 
 
 SCHEDULE D. 
 Affidavit of Servic", referred to in Order 103, 
 
 In Chancery. 
 
 Between A. B., Plaintiff, 
 
 and 
 C. D., Defendant. 
 
 I, , of , in the County of , 
 
 make oath and say : 
 
 I did on the day of personally serve the above 
 
 named defendant with a paper which purported to be 
 
378 APPENDIX. 
 
 an oflSce-copy of the bill filed in this cause, by delivering to and 
 leaving the said office-copy with the said defendant CD., (if served 
 otherwise than personally, say, with a grown-up person, or, as the 
 
 case may be, at the dwelling-house of the said C. D.,) at > 
 
 in the County of . 
 
 I further say, that the said office-copy purported to be authenti- 
 cated by the signature of the * [Begistrar] of this Court {or Deputy 
 
 Registrar at ) at the foot thereof ; and that each page o^ 
 
 the said office-copy was stamped with a stamp similar to the one 
 which I now look upon in the margin of this affidavit. 
 
 I further say, that upon the said office-copy, at the time of service 
 thereof there was endorsed the following memorandum : 
 
 "Your answer is to be filed at the office of the *lKegistrar] at 
 Osgoode Hall, in the City of Toronto, (or Deputy Registrar at 
 )• 
 
 ' ' You are to answer or demur within four weeks from the service 
 hereof. 
 
 " If you fail to answer or demur within the time limited, you are 
 to be subject to have such decree or order made against you as the 
 Court may think just upon the plaintifi"s own shewing ; and if this 
 notice is served upon you personally, you will not be entitled to any 
 further notice of the future proceedi'ngs in the cause. 
 
 "-Zv^oie— This bill is filed by A. B., of the City of Toronto, in the 
 County of York, Solicitor for the above named Plaintifi'." 
 
 And I further say, that to efiiect the said service, I necessarily 
 
 travelled miles. 
 
 * "Clerk of Records and Writs," see Ord. 550. 
 
 SCHEDULE E. 
 
 Notice in case of an Absent Defendant, referred to in 
 Order 108. 
 
 I>" Chancery. 
 
 Between A. B., Plaintifi^ 
 
 and 
 C. D., Defendant. 
 
APPENDIX. 379 
 
 To the Defendant C. D. 
 
 Take notice, that a motion will be made in Chambers, at Osgoode 
 
 Hall, in the City of Toronto, on the day of 
 
 (tlic time fixed by the order autliorb.mg puWcation,) that the bill in 
 this cause may be taken as confessed against you ; and such order 
 having been made, the Court may grant to the plaintiff such relief 
 us he may be entitled to on his own showing ; and you will not 
 receive any further notice of the future proceedings in the cause. 
 
 Dated the day of A. D. 
 
 X. Y. 
 Plaintiff's Solicitor. 
 
 SCHEDULE F. 
 Form of Answer, referred to in Order 122. 
 In Chajtoery. 
 
 Between A. B., Plaintiii, 
 
 and 
 C. D. andE. F., Defendants. 
 
 The answer of C. D., one of the above named defendants, to the 
 bill of complaint of A. B. , the above named plaintiff. 
 
 "In answer to the said bill I, C. D., says as follows : 
 
 1. "I admit {or, For the purposes of this suit I admit,) the truth 
 of the allegations contained in the plaintiff's bill, or the allegations 
 contained in the paragraph of or so much of the al- 
 legations contained in the as commence with the words ' ' 
 
 ,'' and end with the words " ," or I admit, 
 
 &c., save and except that I say, (stating qualifications of admissions, 
 if any.) 
 
 2. "I believe that the defendant E. F. does claim to have a 
 charge upon the farm and premises comprised in the iudentnre of 
 mortgage of the day of , in the plaintiff's bill men- 
 tioned. 
 
 3. " Such charge was created by an indenture dated, <fec., made 
 between myself of the one part, &c. 
 
380 APPENDIX. 
 
 4. " To the best of my knowledge, remembrance and belief, there 
 is not any other mortgage, charge, or incumbrance affecting the 
 aforesaid premises." 
 
 [Such statements as are considered necessary or material are to be 
 introduced with as much brevity as may consist with clearness ; and 
 where a defendant seeks relief under Order 126, the answer is to ask 
 the special relief to which he thinks himself entitled.] 
 
 Form of Jurat, referred to in Order 122. 
 
 Sworn before me at in the County of on the 
 
 - day of , A. D. 
 
 SCHEDULE G. 
 
 Affidavit on production, referred to in Order 137, 
 
 In Chancery. 
 
 Between A. B. , Plaintiff, 
 
 and 
 C. D., Defendant. 
 
 -of make oath and say :- 
 
 1. I have in my possession or power the documents relating to the 
 matters in question in this suit set forth in the first and second parts 
 of the first schedule hereto annexed. 
 
 2. I object to produce the said documents set forth in the second 
 part of the said first schedule. 
 
 3. {State upon what ground the objection is made, and verify the 
 fact as far as may he. ) 
 
 4. I- have had, but have not now, in my possession or power the 
 documents relating to the matters in question in this suit set forth 
 in the second schedule hereto annexed. 
 
 5. The last mentioned documents were last in my possession or 
 power on {state when.) 
 
 6. {State what has become of the last mentioned documents, and in 
 whose possession they now are. ) 
 
APPENDIX. 381 
 
 7. According to the best of my knowledge, remembrance, infor- 
 mation and belief, I have not now and never have had in my own 
 possession, custody or power, or in the possession, custody or power 
 of my solicitors or agents, solicitor or agent, or in the possession, 
 custody or power of any other person on my behalf, any deed, ac. 
 count, book of accounts, voucher, receipt, letter, memorandum, 
 paper or writing, or any copy of or extract from any such document 
 or other document whatever, relating to the matters in question in 
 this suit, or any of them, or wherein any entry has been made rela- 
 tive to such matters, or any of them, other than and except the doc- 
 uments set forth in the first and second schedules hereto annexed. 
 
 Sworn, &c 
 
 SCHEDULE H. 
 Replication, referred to in Order 149. 
 
 In Chancery. 
 
 Between A. B., Plaintiff, 
 
 and 
 
 C. D., E. F., and G. H., Defendants. 
 
 T admit, ifec. , and I join issue with the answer of the defendant, 
 CD., except in so far as I have herein made admissions in regard to 
 allegations contained in such answer, and I will hear the cause upon 
 bill and answer against the defendant, E. F., and pro confesso 
 against the defendant G. H. , (as the case may be .) 
 
 SCHEDULE I. 
 Notice to Admit, rferred to in Order 157. 
 
 In Ohancery. 
 
 Between A. B., ..Plaintiff, 
 
 and 
 CD., Defendant. 
 
S82 APPENDIX. 
 
 Take notice, that the Plaintiff (or defendant) proposes to adduce 
 in evidence the documents hereunder specified, and that the same 
 may be inspected by the defendant, (or plaintiff,) his solicitor or 
 
 agent, at , <fec., on , ifec, between the hours of , 
 
 dec. ; and the defendant (or plaintiff) is hereby required, within 
 four days from the said day, inclusive, to admit that such of th& 
 said documents as are specified to be originals, were respectively 
 written, signed or executed, as they 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 delivered, 
 were so served, sent or delivered, respectively ; saving all just ex- 
 ceptions to the admitting of such documents as evidence in this 
 
 Dated this day of 186 — . 
 
 Yours (fee. 
 
 To S. , <fec. 
 
 &c., &c. . 
 
 SCHEDULE J. 
 Fi,rm of Order, referred to in Order 18t. 
 
 The Court doth order that the following accounts and enquiries^ 
 be taken and made by the Master of this Court, that is to say : 
 
 1st. An account of the personal estate not specifically bequeathed 
 of A, B. deceased, the testator in the pleadings mentioned, come to 
 the hands of, &o. 
 
 2nd. An account of the said testator's debts. 
 
 prd. An account of the said testator's funeral expenses. 
 
 4th. An account of the said testator's legacies. 
 
 5th. An enquiry, what parts, if any, of the said testator's person- 
 al estate are outstanding or undisposed of. 
 
 And it is ordered that the said testator's personal estate, not spe- 
 cifically bequeathed, be applied in payment of his debts and funeral 
 expenses, in a due course of administration, and then in payment 
 of his legacies. 
 
 (// ordeieJ.) 
 
 And it is ordered that the following further accounts and ea<{ui' 
 ries be taken and made, that is to say : 
 
aJppendix. 383 
 
 6th. An enquiry what real estate the said testator was seised of 
 or entitled to at the time of his death. 
 
 7th. An enquiry what incumbrances afifect the said testator's real 
 estate. 
 
 8th. An account of the rents and profits of the said testator's real 
 estate received by, (fee. 
 
 {If Sak ordered.) 
 
 9th. An account of what is due to such of the incumbrancers as 
 shall consent to the sale hereinafter directed in respect of their in- 
 cumbrances . 
 
 10th. An inquiry what are the priorities of such last mentioned 
 incumbrances. 
 
 And it is ordered that the testator's real estate be sold, with the 
 approbation of s . 
 
 And it is ordered that further directions and costs be reserved, until 
 after the said Master shall have made his report. 
 
 SCHEDULE K. 
 Appointment, referred to in Order 198. 
 
 In Chancery. 
 
 Between A. B., Plaintiff, 
 
 and 
 C. D., Defendant. 
 
 The day of is hereby appointed to proceed {here state 
 
 the nature of the business for uMch the appointment is made) when 
 all parties are to attend at Chambers in Osgoode Hall, in the City 
 of Toronto, at the hour of . 
 
 {To be signed by Judge, or Judges' Secretary). 
 
 NoTB. — If you do not attend either in person or by your solicitor, 
 at the time and place above mentioned, such order will be made and 
 proceedings taken in your absence, as may seem just and expedient. 
 
 Gr. H., Solicitor for 
 
•384 APPENDIX. 
 
 SCHEDULE L. 
 
 Endorsement on Office-Copy Decree, referred to in Orders 
 206, and 245. 
 
 To A. B., (the person upon whom service has been directed. \ 
 (set out the order.) 
 
 If you wish to apply to discharge the foregoing order, or to add 
 to, vary, or set aside, the decree, you miist do so within fourteen 
 days from the service hereof. (When the order fixes a time for the 
 fiirther proceedings, add,) And if you fail to attend at the time and 
 place appointed, either in person or by your solicitor, such order will 
 be made and proceedings taken, in your absence, as may seem just 
 and expedient ; and you will be bound by the decree, and the fur- 
 ther proceedings in the cause, in the same manner as if you had 
 been originally made a party to the suit, without any further notice. 
 
 SCHEDULE M. 
 
 Jurat to Affidavit, referred to in Order 258. 
 
 Sworn before me at , in the County of , on the 
 
 day of , A.D. . 
 
 SCHEDULE N. 
 
 Endorsement on Order, served under Oi der 293. 
 
 " If you, the within named (here insert the name of the party,) 
 neglect to obey this order by the time therein limited, you wiU be 
 liable to be arrested by the Sheriff ; and you will also be liable to 
 have your estate sequestered for the purpose of compelling you to 
 obey this order, without further notice. If you wish to apply to 
 the Court to add to, vary, or set aside the said order, or to suspend 
 the operation thereof, you must do so before the expiration of the 
 time within limited." 
 
APPENDIX. 385 
 
 Endorsement on Order of Revivor ,servedunder Order 341. 
 
 "Take notice that if you desire to discharge this order, you must 
 apply to the Court, by motion or petition, for that purpose, within 
 fourteen days after the service hereof upon you. The original biU 
 in this cause is filed in the office of the *\Begisirar'] {or Deputy Regis- 
 trar, at ; " {and if the service is after a decree directing a 
 
 reference to a Master, add,) " and the reference imder the decree in 
 this cause is being prosecuted in the office of the Master at ." 
 
 « Clerk of Records and Writs, see Ord. 650. 
 
 SCHEDULE O. 
 
 Precipe for Direction to the Bank, referred to in Order 
 
 ■353. 
 
 In Chancery. 
 
 (Short Style of Cause. ) 
 
 Required, a direction to the Bank to receive from 
 
 ;^ , payable into Court to the credit of this cause, imder 
 
 dated , (or, as the case may he). 
 
 A. B., Defendant's Solicitor, 
 
 (Or as the case may he). 
 (Date), 
 
 Precipe for Cheque, referred to in Order 356. 
 
 -In Chancery. 
 
 (Short style of Cause). 
 
 Required a Cheque for $ [with $ interest thereon 
 
 from to {being the period, if any, for which interest is 
 
 payable under the Order, hut which has not been already taken into 
 
 account and computed) ], payable to ; and the following 
 
 papers are produced herewith {naming the Decrees, Beports, dbc, 
 .shewing the party's right to the Cheque, thus : 
 
 Decree dated . 
 
 Beport dated , <i:e. ) 
 
 {Date). 
 
 A. B., Plaintiflf's Solicitor, 
 
 (or as the case may he). 
 
386 APPENDI\. 
 
 SCHEDULE P. 
 Conditions of Sale, referred to in Order 379. 
 
 1. No person shall advance less than $10 at any bidding under 
 $500, nor less than $20 at any bidding over $500, and no person 
 shall retract his bidding. 
 
 2. The highest bidder shall be the purchaser ; and if any dispute 
 arise as to the last or highest bidder, the property shall be put up at 
 a former bidding. 
 
 3. The parties to the suit, with the exception of the vendor, (and,. 
 naming any parties, trustees, agents, or others, in a fiduciary situa- 
 tion,) are to be at liberty to bid. 
 
 4. The purchaser shall, at the time of sale, pay down a deposit, in, 
 the proportion of $10 for every $100 of his purchase money, to the 
 vendor, or his solicitor ; and shall pay the remainder of the purchase 
 
 money, , on the day of next ; and 
 
 upon such payment, the purchaser shall be entitled to the conveyance, 
 and to be let into possession ; the purchaser, at the time of sale, to 
 sign an agreement for the completion of the purchase. 
 
 5. The purchaser shall have the conveyance prepared at his own 
 expense, and tender the same for execution. 
 
 6. If the purchaser fails to comply with the conditions aforesaid^ 
 or any of them, the deposit and all other payments made thereon, 
 shall be forfeited, and [the premises may be re-sold ; and the defi- 
 ciency, if any, by such re-sale, together with all charges attending, 
 the same, or occasioned by the defaulter, are to be made good by 
 the defaulter. 
 
 SCHEDULE Q. 
 Report on Sale, referred to in Order 387. 
 
 In Chancery. 
 
 Between A. B., Plaintiff, 
 
 and 
 CD., Defendant. 
 
dUC.,>TjU.,.^ 'uL C^^^rv-*-^o6*^"i ^nxt^<U/i\_. A(:^/^ a^ij^^ ».,^«i^^ 
 
APPENDIX. 387 
 
 Pursuant to the decree (or order) of this Honourable Court, 
 
 bearing date the day of , and made in this cause, 
 
 I have, under the General Orders of this Court, in the presence of 
 {or, after notke to) all parties concerned, settled an advertiseraent 
 and particulars and conditions of sale, for the sale of the lands men- 
 tioned or referred to in the said decree (or order), and such adver- 
 tisement having, according to my directions, been published in the 
 {naming the newspaper or newspapers), once in each week for the 
 ■^— ^ weeks immediately preceding the said sale (or as the case may 
 he), and bill^ of the said sale having been also, as directed by me, 
 published in different parts of the township {town or city) of ^—^ 
 and the adjacent country and villages, {or as the case may he), the 
 said lands were offered for sale by public auction, according to my 
 
 appointment, on the day of , by me (or hy Mr. — — 
 
 of , appointed by me for that purpose, aucUhneer, ) and such 
 
 sale was conducted in a fair, open, and proper manner, when , 
 
 of , was declared the highest bidder for, and became the pur- 
 chaser of the same, at the price or sum of $ , payable as 
 
 fellows' (se< out shortly the condition of sale as to payment of the pur- 
 chase money). 
 
 AH which having been proved to my satisfaction by proper and 
 sufficient evidence, I humbly certify to this Honourable Court. 
 
 Dated ■ 
 
 SCHEDULE R. 
 Notice, referred to in Order 430. 
 
 In Chancery. 
 
 (ShoH Title). 
 To , Defendant. 
 
 Take notice that the plaintiff elects that the sale of the mortgaged' 
 premises be conducted by you instead of by the plaintiff, and you 
 are at liberty to withdraw the deposit made by you in this cause for- 
 the purpose of such sale. 
 
388 APPENDIX. 
 
 SCHEDULE S. 
 
 Endorsement on Office-copy Bill for foreclosure or Sale, 
 under Order 436. 
 
 Your answer is to be filed at the office of the *[liegistrar] 
 
 at , in the of . 
 
 You are to answer or demur within weeks from the service 
 
 hereof. 
 
 If you fail to answer or demur within the time above limited, or 
 if you answer admitting the execution of the mortgage and other 
 facts stated in the biU as entitling the plaintiff to a decree, you are 
 to be subject to have a decree or order made against you forthwith 
 thereafter ; and if this notice is served upon you personally, you 
 will not be entitled to any further notice of the future proceedings 
 in the cause. 
 
 Note. — This bill is filed by , of , in the county 
 
 of , solicitor for the above named plaintiff. 
 
 " And take notice, that the plaintiff claims that there is now due 
 
 by you, for principal money and interest, the sum of , and 
 
 that you are liable to be charged with this sum, with subsequent 
 interest and costs, in and by the decree to be drawn up ; and that 
 in default of payment thereof within six calendar months from the 
 time of drawing up the decree, your interest in the property may be 
 foreclosed (or, sold) unless before the time allowed you as by this 
 notice for answering, you file in the office above named, a memo, 
 randum in writing, signed by yourself or your solicitor to the fol- 
 lowing effect : dispute the amount claimed by the plaintiff 
 
 in this cause ; in which case you wiU be notified of the time fixed 
 for settling the amount due by you, at least four days before the 
 time to be so fixed. {In case foreclosure is prayed by the plaintiff, 
 add ; ) If you desire a sale of the mortgaged premises instead of a 
 foreclosure, you must, within the time allowed you to answer, file 
 in tha office above named a note or memorandum in writing, signed 
 by yourself or your solicitor, to the following effect : — " I desire a 
 sale of the mortgaged premises in the plaintiff's bill mentioned, or 
 a competent part thereof, instead of a foreclosuie ;" and deposit the 
 sum of $80 to meet the expenses of such sale. 
 
 * Clerk of Eecords and Writs see Ord. 650. 
 
APPENDIX. S89 
 
 SCHEDULE T. 
 Notice, served under Order 444. 
 In Chancery. 
 
 Between A. B., Plaintiff, 
 
 and 
 C. D., Defendaat. 
 
 Whereas a suit has been instituted by the above named plaintiff 
 for the foreclosure (or sale) of certain lands, being (insert description 
 of lands) and I have been directed by the decree made in this cause, 
 
 and dated the — day of , to enquire whether any 
 
 person, other than the plaintiff, has any charge, lien, or incumbrance 
 upon the said estate. And whereas it has been made to appear be 
 fore me that you have each some lien, charge or incumbrance upon 
 the said estate, and I have therefore caused you each to be made a 
 
 party to this suit, and appointed the —^— day of , at 
 
 o'clock in the noon, for you to appear before me, at my Cham- 
 bers at , either in person, or by your solicitor, to prove 
 
 your claims. 
 
 Now you are hereby required to take notice : 1st. That if you 
 wish to apply to discharge my order making you a party, or to add 
 to, vary, or set aside the decree, you must do so within fourteen 
 days from the service hereof ; and if you fail to do so, you will be 
 bound by the decree, and the further proceedings in this cause as if 
 you were originally made a party to the suit. 2nd. That if you fail 
 to attend at the time and place appointed, you wiU be treated as. 
 disclaiming all interest in the land in question, and it will be dealt 
 with as if you had no claim thereon, and your claim will be in fact, 
 foreclosed. 
 
 W. L., Master. 
 To 
 
 Appointment, served under Order 446. 
 In Chancery. 
 
 Between A. B., Plaintiff, 
 
 and 
 C. D., Defendant. 
 
 Having been directed by the decree in this cause, dated the 
 
 day of , to enquire whether any person other than the plain- 
 
390 APPENDIX. 
 
 tiff has any lien, charge or incumbrance npoij the lands in the plead- 
 ings mentioned, being, {insert descriptiun of land), I do hereby 
 
 appoint the day of next, at o'clock in the 
 
 noon, at my Chambers at , to proceed with the said 
 
 enquiries. 
 
 And you are hereby required to take notice : 
 
 That if you fail to attend at the time and place appointed, you 
 wiU be treated as disclaiming aU interest in the land in question, 
 and it will be dealt with as if you had no claim thereon, and your 
 claim will be in fact foreclosed. 
 
 W. L., Master, 
 
 SCHEDULE U. 
 
 Notice of Motion. for Administration Order, under 
 Order 468. 
 
 In the matter of the estate of E. F., late of the Township of 
 Vaughan, in the County of V ork, deceased. 
 A. B. against C. D. 
 
 To C. D., Executor of E. F., deceased. 
 
 Take notice that A. B., of the City of Toronto, in the County of 
 York, Esquire, (or other proper description of the party), who claims 
 to be a creditor upon the estate of the above named B. F., wiU ap. 
 ply to the Court of Chancery, in Chambers, at Osgoode Hall, in the 
 
 City of Toronto, on the day of , at the hour of , 
 
 for an order for the administration of the estate, real and personal, 
 of the said E. F., by the Court of Chancery ; and upon such appli- 
 cation wUl be read the affidavits of (state the materials upon which the 
 application is founded) this day filed. 
 
 If you do not attend either in person or by your solicitor at the 
 time and place above mentioned, such order wUl be made in your 
 absence as may seem just and expedient. 
 
 Dated, &o. 
 
 G. H., 
 
 Of the City of Toronto, Solicitor for the above named A. B. 
 
APPENDIX. 891 
 
 SCHEDULE V. 
 
 No. 1. — Advertisement for Creditors, under Order 475. 
 
 Pursuant to a decree [or an order] of the Court of Chancery, 
 made in [the matter of the estate of A. B. , and in] a cause, 8. against 
 
 P. [s/iori title], the ci'editors of A. B ., late of , in the county of 
 
 , who died in or about the month of , 18 — , are, on or be- 
 fore the day of , 18 — , to send, by post, prepaid to E. P., 
 
 of , the solicitor of the defendant C. D. , the executor [or ad- 
 ministrator] of the deceased [or as may be directed], their Christian 
 and sur-names, addresses and description, the full particulars of 
 their claims, a statement of their accounts, and the nature of the 
 securities (if any) held by them ; or in default thereof, they will be 
 peremptorily excluded from the benefit of the said decree [or order] 
 Every creditor holding any security is to produce the same before 
 
 me, at my Chambers, at, (fee, on the day of , 18 — , at 
 
 o'clock in the noon, being the time appointed for adjudica 
 
 tion on the claims. 
 
 Dated tliis day of , 18 — . 
 
 Q. H., Master. 
 
 No. 2. — Notice to Creditor to produce Documents, under 
 Order 477. 
 
 {Short Title). 
 
 You are hereby required to produce, in support of the claim sent 
 in by you, against the estate of A. B., deceased [describe any docu- 
 ment required], before me at my Chambers, at, (fee, on the day 
 
 •of , 18 — , at o'clock in the noon. 
 
 Dated this day of , 18 — . 
 
 G. R., of, &c., Solicitor fer the plaintiff, 
 [or, defendant, or as may be]. 
 To Mr. S. T. 
 
392 APPENDIX. 
 
 No. 3. — Affidavit of Executor or Administrator as, to 
 Claims, under Order 480. 
 
 In Chancery. 
 
 (Title). 
 
 We, CD., of, (fee, the above named plaintiff [or defendant, or 
 
 as may he], the executors [or administrators], of A. B., late of , 
 
 in the County of , deceased, and E. F., of, &c., solicitor, seve- 
 rally make oath, and say as foUows : — 
 
 I, the said E. F., [solicitor] for myself, say as follows : 
 
 1. I have, in the paper writing now produced and shewn to me, 
 and marked A., set forth a list of all the claims the particulars of 
 which have been sent in to me by persons claiming to be creditors- 
 of the said A. B., deceased, pursuant to the advertisement issued. 
 in that behalf, dated day of , 18 — . 
 
 And I, the said C. D., for myself, say as follows : 
 
 2. I have examined the several claims mentioned in the paper 
 writing now produced and shewn to me, and marked A., and I 
 have compared the same with the books, accounts, and documents- 
 of the said A. B., [or as may be, and state any other inquiries or in- 
 vestigations made], in order to ascertain, as far as I am able, to- 
 which of such claims the estate of the said A. B., is justly liable. 
 
 3. Prom such examination [and state any other reasons}, I am of 
 opinion, and verily believe, that the estate of the said A. B. is justly 
 liable to the amounts set forth in the sixth column of the first par*- 
 of the said paper writing marked A. ; and to the best of my know- 
 ledge and belief, such several amounts are justly due from the estate 
 of the said A. B., and proper to be allowed to the respective claim- 
 ants named in the said schedule. 
 
 4. I am of opinion that the estate of the said A. B. is not justly 
 liable to the claims set forth in the second part of the said paper- 
 writing marked A., and that the same ought not to be allowed with- 
 out proof by the respective claimants, [or, I am not able to stat^ 
 whether the estate of the said A. B., is justly liable to the claims, 
 set forth in the second part of the said paper writing marked A., or 
 whether such claims, or any parts thereof, are proper to be allowed. 
 without further evidence]. 
 
 Sworn, &c. 
 
APPENDIX. 
 
 393 
 
 Exhibit re/erred to in Affidavit, No. 3. 
 
 {Short Title). 
 
 List of claima the particulars of wMoh have been sent in to E. F., 
 the solicitor of the plaintiff, [or, defendant, or as may he], by per- 
 sons claiming to be creditors of A. B., deceased, pursuant to the 
 
 advertisement issued in that behalf, dated the day of — — 
 
 18—. 
 
 This paper writing, marked A., was produced and 
 
 shewn to , and is the same as is referred to 
 
 in his affidavit, sworn before me this day of 
 
 , 18-, 
 
 W. B., &c. 
 
 First Part. — Claims proper to be allowed without 
 further evidence. 
 
 1 
 
 •3 
 1 
 
 Names of 
 Claimants. 
 
 Addresses 
 
 and 
 
 Descriptions. 
 
 Nature 
 
 of 
 Claim. 
 
 Amount 
 claimed. 
 
 Amount 
 
 proper 
 
 to be 
 
 allowed 
 
 
 
 
 
 $. c. 
 
 $. c. 
 
 Second Port. -^Claims which ought to be proved by the 
 Claimants. 
 
 is 
 
 Names 
 
 of 
 
 Claimants. 
 
 Addresses 
 
 and 
 
 Descriptions. 
 
 Nature 
 
 of 
 Claim. 
 
 Amount 
 claimed. 
 
 
 
 
 $ 0. 
 
394 APPENDIX. 
 
 No. 4. — Notice to Creditor that claim allowed, under 
 Order 483. 
 
 (Short Titte). 
 
 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 , 18 — , and 
 
 $ for costs, or as the case may bej. 
 
 If part only allowed, add. — If you claim to have a larger sum 
 allowed, you are hereby required to prove such further claim, and 
 you are to file [<fec., as in Form No. 5,] 
 
 Dated this day of , 18 — , 
 
 Gr. R., of, &c.. Solicitor for the plaintiff 
 
 lor defendant, or as may he. ] 
 To Mr. P. E. 
 
 No. 5. — Notice to Creditor to prove his claim, under 
 Order 483. 
 
 (Short Titk). 
 
 Ton are hereby required to prove the claim sent in by you against 
 the estate of A. B ., deceased. You are to file such affidavit as you 
 may be advised in support of your claim, and give notice thereof to 
 
 , Master in Chancery [or as the case may 6e], on or before the 
 
 day of , 18 — ; and to attend personally or by your solici- 
 tor, at his Chambers, on the day of , 18 — , at o'clock 
 
 in the noon, being the time appointed for adjudicating on the 
 
 ■claim. 
 
 Dated this day of — •-, 18 — . 
 
 G. R., of, &c., Solicitor for the plaintiff. 
 [or defendant, or as may he]. 
 To Mr. S. T. 
 
 No. 6. — Notice that Cheques may be received, under 
 Order 486. 
 
 (Short Title). 
 
 The cheques for the amounts directed to be paid to the creditors 
 of A. B., deceased, by an order made in this [matter or] cause dated 
 
APPENDIX. 395 
 
 the day of , 18 — , may be received at the Registrar's OflBoe, 
 
 in Osgoode Hall, Toronto, on and after the day of , 18 — . 
 
 G. B., of, <kc., solicitor for the plaintiff, 
 [or, defendant, or as may 6e.] 
 To Mr. W. S., 
 (fee. 
 
 SCHEDULE W. 
 
 Endorsement on Office-copy Order, served under 
 Order 536. 
 
 Take notice that unless you within days after the service 
 
 hereof upon you, shew unto the Court of Chancery for Upper 
 Canada, good cause why the within decree (or order) should not be 
 binding upon you} you wdU be bound by the said decree (or order^, 
 and the same will stand and be absolute against you. 
 
 Dated, <fec., 
 
 G. R., 
 
 SoUcitor for the plaintiff. 
 
 TARIFF. 
 
 {Referred to in Order 309.) 
 
 Instructions for suit $2 00 
 
 Insti^uctions to defend 2 00 
 
 Instructions for petition where no biU is filed 2 00 
 
 Letter of notice before instituting suit 50 
 
 Drafting bill not.exceeding 20 folios, including copy to keep 4 00 
 For every additional folio above 20, (to be allowed in the dis- 
 cretion of the Master) including copy to keep, per foUo. 20 
 
 [No greater sum than $6, to be taxed by the Master for drawing any 
 bill, without the special direction of one of the Judges of the Ooui t, upon 
 the application of the solicitor requiring the same, for which application 
 no charge is to be made.] 
 
 Drafting answer or other pleading, petition or special affidavit 
 per folio $0 
 
396 APPENDIX. 
 
 [No greater sum than $6, to be taxed for drawing any answer, petition, 
 or afBdavit, without the special direction of one of the Judges of the 
 Court, as'provided for in the case of bills ; and no greater sum is to be 
 allowed for drawing an answer, petition, or affidavit, than would have 
 been taxed irrespective of this order.] 
 
 Engrossed copies to file, copies to serve (other than copies 
 on which a fee is to be paid to the Master, Clerk of 
 Records and Writs, or Deputy Registrar, for reading 
 
 over or authenticating the same), per folio §0 10 
 
 Copies of orders or other papers or documents, required to 
 
 be served, per folio 10 
 
 Office-copies authenticated by the Clerk of Records and 
 
 Writs, or Deputy Registrar, per folio 08 
 
 Affidavits of service of bill, including attendance to swear 1 00 
 
 Affidavits of service, including attendance to swear 40 
 
 Precipe for any process, incluiling attendance 50 
 
 Special attendance on Master's warrant or appointment, or 
 on examination of witnesses, or on hearing of cause or 
 demurrer or special motion $1 00 
 
 [No such fee or any other costs of, and incidental to an appointment is 
 or are, to be allowed by the Master to any party, either by consent or on 
 any ground whatever, as part of the costs of the cause, when the appoint- 
 ment was adjourned without being proceeded on, or where no substantial 
 progress with the reference was made thereon. But the Master may 
 order the payment of such costs as provided for by Order 213.] 
 
 When the hearing shaU exceed one hour, then for every addi- 
 tional hour which shall be occupied by such hearing, and 
 at which the solicitor shall be present in Court, provided 
 the same be noted in the Registrar's book, or be proved 
 by affidavit (such affidavit to be without charge,) the 
 same not to exceed $4 |1 00 
 
 For every additional hour beyond one hour in the Master's 
 
 Office 1 00 
 
 [For attendance in the Master's office upon a warrant or appointment 
 to hear and determine, the Master may increase the fee for such attendance 
 to any sum not exceeding two dollars per hour, where, in the judgment 
 of the Master, the matters to be heard and determined are of such special 
 nature as to have required previous preparation, and where the Master 
 finds that previous preparation has been bestowed thereupon, and that in 
 his judgment such increase of fee is reasonable and proper under the cir- 
 cumstances; but no such allowance is to be made for more than one day 
 
APPENDIX. 397 
 
 unless the hearing is proceeded with de die in diem to the conclusion 
 thereof ; or unless such proceedings be prevented by a party other than 
 the one claiming the increased allowance ; and the increased allowance 
 is not to be made unless the eame is noted at the time in the Master's 
 book.] 
 
 For every additional hour in the examination of witnesses 
 
 where no coxinsel employed $1 00 
 
 •. 
 [The fee on the attendance of a solicitor, where the solicitor attends 
 
 in person, and no counsel is employed, may in special cases be increased 
 
 in the discretion of the Judge, or Officer before whom the examination is 
 
 had, to two dollars, and where the examination occupies more than ong 
 
 hour, then two dollars, for every additional hour which is so occupied, and 
 
 during which the solicitor is present in attendance thereupon, provided 
 
 the same is noted at the time in the Begistrar's book, or in the book of 
 
 the Master, or other Officer, as the case may be.] 
 
 Attending consvdtationa of counsel, per hour $1 00 
 
 [No special attendance to be allowed to a solicitor on proceedings 
 upon which he appears also as counsel.] 
 
 Appointment to settle minutes, or to pass decree or order, 
 
 copy and service $0 80 
 
 For every hour's attendance before the Registrar by his 
 appointment, on settling minutes, the same being noted 
 by the Registrar 1 00 
 
 For every hour's attendance befor the Registrar by his 
 appointment, on passing decree or special order, the 
 same being noted by the Registrar 100 
 
 [The fee on settling minutes and on passing Decrees or Orders may be 
 increased in the disiretion of the Eegistrar, in special cases, to two dol- 
 lars, where the solicitor attends personally on such settling or passing.] 
 
 Where minutes settled, or decrees or special order approved 
 of or passed between the Solicitors after -appointment 
 issue by the Registrar |1 00 
 
 [In such case no fee to be allowed to either party as for attendance 
 before the Registrar in respect of the same settling or passing.] 
 
 Fee on all writs and orders of Court to the party obtaining 
 
 the same , $1 
 
 Instructions for brief 1 00 
 
 Brief, per folio, including briefing and fair copy, subject to 
 be reduced by the Master, if the same contain super- 
 fluous matter, or be of unnecesssary length 10 
 
S98 APPENDIX. 
 
 bbgervations or other original matter in brief, per folio 20 
 
 [A brief of depositions or special afSdavits to be allowed only There 
 fee and brief for second counsel is taxed.] 
 
 Drawing special minutes, when prepared by the solicitor, 
 
 per folio $0 20 
 
 Advertisments for sale of real or personal estate, under the 
 directiontof the Court, including all copies, except for 
 
 printing 1 00 
 
 Copies for printing — per folio 10 
 
 Fee on conducting sale — ^including arrangements with 
 auctioneer, correcting proof-sheets Cif any) and at- 
 tending sale 6 00 
 
 For every hour beyond three occupied at such sale 1 00 
 
 Drawing biU of costs and attending taxation 1 00 
 
 Drawing Judge's appointment, and attending for his signa- 
 ture, andtoserve 1 00 
 
 Every necessary attendance 50 
 
 Necessary agency letters in the course of a cause or matter, 
 to be allowed on taxation between party and party, as 
 attendances 
 Postages — ^the amount actually disbursed. 
 
 [The sum allowed for copying and briefing shall be ten cents per folio, 
 except where authenticated by the Clerk of Records and Writs, or read 
 over by the Master ; but the same shall not in any case exceed one half 
 of the amount allowed for drawing what shall be so copied or briefed.] 
 
 COUNSEL 
 
 On argument in Chamber in cases proper for the attendance 
 of counsel, to be increased at the discretion of the 
 Judge |2 00 
 
 On settling and signing pleadings and petitions respectively, 
 where from their special nature the Master shall think 
 the pleading or petition a proper one to be settled by 
 counsel , 2 00 
 
 On consultations 5 00 
 
 On special applications to the Court, arguing demurrer or 
 
 other special argument, or at the hearing of a cause 10 00 
 
 [To be increased, in the discretion of the Master, to a sum not exceed 
 ing $40 to senior connsel, and $20 to junior counsel, in suits of a special 
 and important nature ; but more than one counsel fee is not to be allowed 
 in any case not of a special and important nature. Where two counsel 
 
APPENDIX. 399 
 
 feea or an increaeed fee is allowed by a Local Matter, he is to forward to 
 the Taxing. Officer with the bill, upon transmitting it for reTiaion, such 
 information as may enable the Taxing Officer to judge of the propriety 
 of the fee or fees allowed.] 
 
 MASTER. 
 
 Every summons or warrant $0 30 
 
 Administering oath, or taking affirmation 20 
 
 Marking every exhibit '. 20 
 
 Drawing depositions, reports or orders, per folio 20 
 
 One fair copy when necessary, per folio 10 
 
 Copy of papers given out when required, per folio 10 
 
 Every attendance upon a reference 1 00 
 
 For each additional hour 1 00 
 
 Every certificate , 50 
 
 Filing each paper 10 
 
 Taxing costs, including attendance 1 00 
 
 Making up and forwarding answers and depositions 30 
 
 Every special attendance out of office, within two mUes 1 00 
 
 Every additional mUe above two 20 
 
 Reading affidavit — ^per folio 02 
 
 Matter added — per folio 20 
 
 Searching files in office.....'. , 20 
 
 REGISTRAR. 
 
 Drawing minutes of decree or special order — per folio 20 
 
 Drawing decree or order — per folio 20 
 
 Entering same — perfolio , 10 
 
 Fee on payment of money into Court 30 
 
 Fee on payment of money out of Court 30 
 
 Fee on admission of Solicitor 1 00 
 
 Commssion appointing Local Master or. Deputy Registrar... 2 00 
 
 Attendance on appointment of guardian , 50 
 
 JUDGES' SECRETARY. 
 
 On every application in Chambers (including the order there- 
 on, if made), for a decree against infants, for the admini- 
 stration of an estate, for the sale of an infant's estate, to 
 declare a person a lunatic, for interim alimony, for a vest- 
 ing order, for final order of forclosure or sale, for 
 forclosure after abortive sale, to extend time for payment 
 
 of mortgage money, or for taxation 1 00 
 
400 APPENDIX. 
 
 On every other application (including the order thereon, if 
 
 made; 50 
 
 For other services, the like fees as are payable to the Master. 
 
 SPECIAL EXAMINERS. 
 
 Every summons or warrant $0 30 
 
 Administering oath, or taking affirmation 20 
 
 Marking each exhibit 20 
 
 Drawing depositions — per folio 20 
 
 Copy for Solicitor, when required — per folio 10 
 
 Every attendance out of office, when within two mUes 1 00 
 
 Every attendance 'out of office above two miles, extra per 
 
 mile 20 
 
 Everyjcertificate 50 
 
 Making'up and forwarding answers and depositions 30 
 
 Every[attendance upon an appointment, when Solicitor or 
 
 witnesses do not attend, and Examiner not notified 1 00 
 
 CKERK OP RECORDS AND WRITS, AND DEPUTY REGISTRAR. 
 
 Entering parties' names, and filing bill, answer or demurrer. |0 60 
 Entering and filing all other pleadings, interrogatories and 
 
 depositions, or other evidence , 20 
 
 Filing and registering affidavits, exhibits, or other papers... 10 
 
 Entering note jjro com/esso 50 
 
 Subpoena, including filing precipe 50 
 
 Special writ, writ of commission 1 00 
 
 Office-copy of papers required to be given out — per folio 10 
 
 Examining and authenticating same, when office-copy pre- 
 pared by Solicitor — every three folios 05 
 
 Amendment of record, when re-engrossment not necessary — 
 
 perfoUo 20 
 
 Making up, and forwarding interrogatories 30 
 
 Setting down cause, other than for hearing pro confesso 2 00 
 
 [The fee payable to a Deputy Registrar on setting down a cause for 
 hearing to be |8.] 
 
 Setting down cause pM confesso $0 50 
 
 Certificate of pleadings being filed 40 
 
 Certificate of state of cause 50 
 
 Searching files in office 20 
 
 SHERIFFS. 
 
 Receiving, filing, entering and endorsing every paper $0 25 
 
APPENDIX. 401 
 
 IReturn of all process and writs except subpoenas 50 
 
 "Warrant to bailiff, on writ not executed by Sheriff or Deputy 60 
 Serving each oflSca-copy biU indluding afiSdavit of service... 1 00 
 Serving each warrant, notice, certificate, subpoena, or other 
 
 paper 50 
 
 Writ of Arrrest — arrest on, when amount endorsed under 
 
 |200 1 00 
 
 $200, and under pOO 2 00 
 
 $400, and over 4 00 
 
 Attachment — arrest on 2 00 
 
 Sequestration — upon seizure of estate and effects under writ 
 
 of sequestration 2 00 
 
 Schedule of goods taken in execution, including copy for 
 
 defendant, if not exceeding 5 folios 1 00 
 
 Each folio above5 10 
 
 Eemoving or retaining property, reasonable and neces- 
 sary disbursements, and allowances to be made by the 
 Master or by order of the Court or Judge . 
 Poundage upon sequestration, followed by sale. 
 
 Where amount made under $400, at 5 per cent. 
 
 $400, but under $4,000, 5 per cent, for the first $400 
 2^ per cent for the residue. $4,000 and over, IJ per 
 cent, on whatever exceeds $4,000, in addition to the 
 poundage allowed up to $4,000, in lieu of all fees and 
 charges for services and disbursements, except mileage in 
 going to seize, and disbursements necessarily incurred in 
 the care and removal of property to be allowed by the 
 Master in his discretion 
 IFor services not specified — The like charges as are allowed at 
 Common Law for analogous services. 
 
402 APPENDIX. 
 
 AN ACT RESPECTING THE COUET OP ERROR AND 
 APPEAL. 
 
 CONSOLIDATED STATUTES OP UPPER CANADA, CAP. XIII. 
 
 Her Majesty, by and with the ad-vice and consent of the Legisla- 
 tive Council and Assembly of Canada, enacts as follows : 
 
 I. The " Court of Error and Appeal," at present existing in Upper 
 Canada, is hereby continued, and shall be called the Court of Error 
 and Appeal. 12 V., c. 63, s. 38. 
 
 II. The Judges for the time being of the Courts of Queen's Bench, 
 Chancery, and Common Pleas in Upper Canada, shall be ex officio, 
 members of the Court of Appeal. 20 V., c. 6, s. 2. 
 
 III. The Governor may, by commission under the Gr eat Seal 
 from time to time, appoint any retired Judge of any of the said 
 Superior Courts as an additional Judge of the Court of Error and 
 Appeal. 20 V., c. 5, s. 2. 
 
 IV. Every person so appointed shall take such rank and prece- 
 dence, after the Chief Justice of Upper Canada, the Chancellor of 
 Upper Canada, and the Chief Justice of the Court of Common Pleas 
 as may be designated in his commission. 20 V., o. 5, s. 2. 
 
 [V. Repealed by 24 Vic, c. 36. 
 
 By 24 Vic. c. 36, the following is substituted for section 5. "The 
 Governor may, by commission under the Great Seal, from time to 
 time, appoint any retired Judge of any of the Superior Courts of 
 Upper Canada, to be the presiding Judge of the said Court of Error 
 and Appeal, and failing suchjappointment^ the Chief Justice of the 
 Court of Queen's Bench for the time being, and in his absence the 
 Judge entitled to precedure over all the other Judges present shall 
 preside. 
 
 By 25 Vic, c. 18, sec. 1, the presiding Judge so appointed is to 
 have rank and precedence over all the other Judges of Her Majesty's 
 Courts of Law and Equity in Upper Canada. 
 
 By sec. 2, he is, within six months after his appointment, to take 
 the prescribed oath before the Governor in CounciL 
 
 By sec. 3, he is entitled if enjoying a pension for an annuity of 
 !wo-thirds of tho salary annexed to the office from which he retired, 
 to receive in addition a sum equal to one-third of the amount of his 
 salary at the time of his retirement. ] 
 
APPENDIX. 
 
 403 
 
 VI. Seven members of the Court shall be necessary to constitute 
 a quorum. 20 V., c. 5, s. 4. 
 
 VII. The Registrar of the Court of Chancery shall ex officio be 
 Clerk of the Court of Error and Appeal. 12 V., c. 63, s. 43. 
 
 [VIII. Repealed by 25 Vic, o. 18, s. 4. 
 
 By 25 Vic. , c. 18, s. 4, the following is substituted for section 8. 
 The Court of Error and Appeal shall hold its sittings at the City of 
 - Toronto, on the fourth Thursday next after the several terms of 
 Hilary, Easter, and Michaelmas, and may adjourn from time to 
 time, and meet again at the time fixed on the adjournment, for the 
 transaction of business.] 
 
 IX. The Court shall have an appellate Civil and Criminal Juris- 
 diction throughout Upper Canada, and an appeal shall lie thereto 
 from all judgments of the Courts of Queen's Bench and Common 
 Pleas, and from all judgments, orders and decrees of the Court of 
 Chancery. 12 V., c. 63, s. 40. 
 
 X. The Court shaU have power to quash proceedings in cases 
 brought before it, in which Error or Appeal does not he, or where 
 such proceedings are taken against good faith, or in jwhich proceed 
 ings might heretofore have been quashed in the Court, according to 
 the law and practice in England. 20 V., c. 6., s. 6. 
 
 XI. The Court shall have power to dismiss an Appeal, or to give 
 the Judgment or Decree and to award the process or other proceed- 
 ings which the Court whose decision is appealed against ought to 
 have given, without regard to the party alleging Error, and may also 
 award restitution and payment of costs. 20 V., o. 5, s. 7. 
 
 XII. The Judgment, Decree or award shall be certified by the 
 Clerk of the Court of Error and Appeal to the proper officer of the 
 Court below, who shall thereupon make all proper and necessary 
 entries thereof, and all subsequent proceedings may be taken there- 
 upon, as if the Judgment, Decree or Award had been given in the 
 Court below. 20 V., c. 5, s. 7. 
 
 XIII. An appellant may discontinue his proceedings by giving to 
 the respondent a notice headed in the Court and cause, and signed 
 by the appellant or his Attorney, stating that he discontinues such 
 proceedings ; and thereiipon the respondent shall be at once entitled 
 to the costs of and occasioned by the proceedings in Appeal, and may 
 either sign judgment for such costs or obtain an Order for their pay- 
 
404 APPENDIX. 
 
 ment in the Court below, and mayftake all further proceedings in 
 that CoTirt, as if no appeal had been brought. 20 V., c. 6, s. 8. 
 
 XIV. A respondent may consent to the reversal of the judgment, 
 decree or proceeding appealed against, by giving to the appellant a 
 notice headed in the Court and cause, and signed by the respondent 
 or his Attorney, stating that he consents to the reversal of the judg- 
 ment, decree or other proceeding, and thereupon the Court shall 
 pronounce judgment of reversal as of course. 20 V., c. 5, s. 9. 
 
 XV. No appeal shall be allowed until the appellant has given 
 proper security to the extent of four hundred dollars, to the satis- 
 faction of the Court from whose order, decree or judgment he ia 
 about to appeal, that he wiU eflfectually prosecute his appeal, and 
 pay such costs and damages as may be awarded in case the judg- 
 ment or decree appealed from be affirmed. 12 V., c. 63, s. 40. TJm 
 Proviso and see Post, ss. 17, 35, 69, & 60. 
 
 XVI. Upon the perfecting of such security, execution shall be 
 stayed in the original cause, except in the following cases : 12 V., c. 
 63, s. 40. 
 
 1. If the judgment or decree appealed from directs the assignment 
 or delivery of documents or personal property, the execution of the 
 judgment or decree shall not be stayed until the things directed to 
 be assigned or delivered are brought into Court or placed in the 
 custody of|such Officer or receiver, as the Court appoints, nor until 
 security has been given to the satisfaction of the Court appealed 
 from, and in such sum as that Court directs, that the appellant will 
 obey the Order of the Appellate Court ; 12 V., c. 63, s. 40, No. 2. 
 
 2. If the judgment or decree appealed from directs the execution 
 of a conveyance or any other instrument, the execution of the judg- 
 ment or decree shall not be stayed until the instrument has been ex- 
 ecuted and deposited with the proper officer of the Court appealed 
 from, to abide the judgment of the Appellate Court ; 12 V., c. 63, 
 s. 40, No. 3. 
 
 3. If the judgment or decree appealed from directs the sale or de- 
 livery of possession of real property or chattels real, the execution 
 of the judgment or decree shall not be stayed until security has been 
 entered into to the satisfaction of the Court appealed from, and in 
 such sum as that Court directs, that during the possession of the 
 property by the Appellant, he will not commit or suffer to be com- 
 mitted any waste on the property, and that if the judgment be af. 
 firmed, he will pay the value of the use and occupation of the prop- 
 

APPENDIX. 
 
 405 
 
 erty from the time of the appeal untU the delivery of possession 
 thereof, and also, in case the judgment or decree is for the sale of 
 property and the payment of a deficiency arising upon the sale, that 
 the Appellant will pay the deiioienoy ; 12 V., o. 63, a. 40, Nos. 4 
 and 5. 
 
 4. If the judgment, order or decree appealed from directs the 
 payment of money, the execution of the judgment or decree shall not 
 be stayed untU the appellant has given security, to the satisfaction 
 of the Court appealed from, that if the judgment, order or decree) 
 or any part thereof, be affirmed, the appellant will pay the amount 
 thereby directed to be paid, or the part thereof as to which the judg- 
 ment may be affirmed if it be affirmed only as to part, and aU dam- 
 ages awarded against the appellant on the appeal. 12 V., c. 63, s. 
 40, No. 1. 
 
 XVII. When the security has been perfected and allowed, any 
 Judge of the Court appealed from may issue his fiat to the Sheriff 
 to whom any execution on the judgment or decree has issued, to stay 
 the execution, and the execution shall be thereby stayed whether -a 
 levy has been made under it or not. 18 V., c. 123, s. 1. 
 
 XYIII. If at the time of the receipt by the Sheriff of the fiat, or 
 of a copy thereof, the money has been made or received by him but 
 not paid over to the party who issued the execution, the party ap- 
 pealing may demand back from the Sheriff the amount made or re- 
 ceived under the execution, or so much thereof as is in his hands not 
 paid over, and in default of payment by the Sheriff upon such de- 
 mand, the appellant may recover the same from him in an action 
 for money had and received. 18 V., c. 123, s. 2. 
 
 XIX. The death of the appellant after the security has been per- 
 fected and allowed shall not cause the appeal to abate. 20 V., c. 5, 
 s. 10. 
 
 XX. The death of the respondent shall not cause the appeal to 
 abate. 20 V., o. 5, s. 11. 
 
 XXI. The marriage of a woman appellant or respondent shall 
 not abate the appeal, but the proceedings in error and appeal shall 
 go on as if no such marriage had taken place, and the decision of 
 the Court shall be certified as in other cases. 20 V. , c. 5, s. 12. 
 
 XXII. An appeal shall lie from a judgment upon a special casein 
 the same manner as from a judgment upon a special verdict, unless 
 the parties agree to the contrary ; and the proceedings for bringing 
 
406 APPENDIX, 
 
 a special case before the Court of Error and Appeal shall, as nearly 
 as possible, be the same as in the case of a special verdict, and that 
 Court shall draw any inferences of fact from the facts stated in the 
 special case, which the Court by which the case was originally de- 
 cided ought to have drawn. 20 V., c. 5, s. 13. 
 
 XXIII. An appeal shall lie in the case of a rule to enter a verdict 
 or non-suit upon a point reserved at the trial whether a rule to shew 
 ■cause has been refused or granted, or has been discharged or made 
 absolute. 20 V., c. 5, s. 14 ^t /&* h^^ i^/cU. ■•-^i.'i, jTcu.7t^^ 
 
 XXIV. In all cases of motion for a new trial upon the ground 
 that the Judge has not ruled according to law, if the rule to shew 
 cause be refused, or if granted, be afterwards discharged or made 
 absolute, the party decided against may appeal, provided any one of 
 tho JudgoD diopont from the rule being rc f ubed, ur when g r anted, 
 bniTig r1i ~ rhT)rr rrl n r nniirlr ^b i inlnt n ^ n n t 1i r I' lV i ' mj' b r^ nr prn T Jilnd 
 the Ouui ' ti in ito diccrotion think fit that an appeal sh o uld be allow 
 
 -e*. 20 v., c. 5, s. 15. 
 
 XXV. No appeal shall be allowed under the three preceding sec- 
 tions, unless notice thereof be given in writing to the opposite party 
 or his attorney and to the Clerk of the Crown of the proper Court, 
 within fourteen days after the decision complained of, or within 
 such further time as the Court appealed from, or a Judge may al- 
 low. 20 V., c. 5,8. 16. 
 
 XXVI. Where the application for a new trial is upon matter of 
 discretion only, as on the ground that the verdict is against the 
 weight of evidence, or otherwise, no appeal shall be allowed. 20 V., 
 c. 5, s. 15. 
 
 XXVII. An appeal shall lie in ejectment in the same manner 
 and to the same extent as in any other case. 20 V., c. 5, s. 17. 
 
 XXVIII. -A n npp rn l vh-^W lir i n nil nninnn i n ir h i rh n. T^ y biw nf n, 
 ■S lunioipal Cmrporitinn h«c boon quachcd by rule of Court after ar-- 
 -gament 20 V., c. 5, s. 18. 
 
 XXIX. A person convicted of treason, felony, or misdemeanor, 
 before any Court of Oyer and Terminer or Gaol Delivery, whose con- 
 viction has been affirmed by either of the Superior Courts of Com- 
 mon Law, may appeal against the affirmation, and the Court of 
 Error and Appeal shall make such rule or order therein, either in 
 affirmance of the conviction or for granting a new trial, or other- 
 
'-' - /f 
 
 *"V- /CA/X /**-^ 'i^M.* ■^'^Ct.^uCS^iy 3^ Ai . <ra^ y^. st:c./_ 
 
 
 fvx^c. 
 
 
APPENDIX. 407 
 
 ■wise, as the justice of the case requires, and shall make all other ne- 
 cessary rules and orders for carrying ^uoh rule or order into effect ; 
 but no such appeal shall be made unless allowed by the Superior 
 Court appealed from, or by two of the Judges thereof, in term or 
 vacation ; nor unless such allowance has been granted and the appeal 
 been heard, within six months after the conviction was affirmed, 
 unless otherwise ordered by the Court of Error and Appeal ; and 
 any rule or order of the Court of Error and Appeal shall be final- 
 20 v., c. 61, s. 4. 
 
 XXX. No other appeal from a decision of the Court of Queen's 
 Bench or Common Pleas shall be allowed, unless the judgment, de- 
 cision, or other matter appealed against, appears of record. 20 V.j 
 c. 5, s. 16. 
 
 XXXI. In cases not otherwise provided for, an appeal against any 
 judgment or decision shall be commenced and prosecuted with effect 
 witliin four years after the judgment or decision has been entered of 
 record, given or completed, unless with respect to any person enti- 
 tled to appeal, and who is, at the time such title accrues, within the 
 age of twenty-one years, feme covert, non compos mentis, or without 
 the limits of this Province, and then syoh person shall have for 
 commencing his appeal and prosecuting the same with effect, six 
 years after becoming of full age, discovert, of sound memory, or re- 
 turning to the Province ; and if the opposite party, at the time the 
 title to appeal accrues, be out of the Province, then the party desi- 
 rous of appealing shall have for commencing his appeal and prose- 
 cuting the same with effect, six years after the return of such party 
 to this Province. 19 V., c. 43, ss. 293, 294. 
 
 XXXII. A Writ of Error and Appeal shall not be used in any 
 civil case, and the proceeding to appeal against a judgment shall be 
 a step in the cause. 20 V., c. 5, s. 20. 
 
 XXXIII. Either party alleging error in law may deliver to the 
 ■Clerk of the Crown of the Court wherein the suit was instituted, a 
 memorandum in writing, entitled in the Court and cause, and 
 signed by the party or his Attorney, alleging that there is error in 
 law in the record and proceedings. 20 V., c. 5, s. 21. 
 
 XXXIV. The Clerk shaU file the memorandum, and deliver to 
 the party lodging the same a note of the receipt thereof, and the 
 latter shall serve on the opposite party, or his attorney, a copy of 
 the note, together with a statement of the grounds of error intended 
 to be argued. 
 
408 APPENDIX. 
 
 The memorandum may be to the effect following : 
 
 "In the (Q.B. or C. P.) 
 " The day of , in the year of our Lord, 18 
 
 (The day of lodging Note of Error.) 
 
 "A. B. andC. D. 
 
 " The plaintiff (or defendant) says that there is error in law in 
 " the record and proceedings in this action, and the defendant (or- 
 " plaintiff) says that there is no error therein, 
 "A. B., Plaintiff, 
 "(orO. D., Defendant,) 
 
 " (or E. P., Attorney for Plaintiff or Defendant) ; " 
 20 v., 0. 5, Soh. A 1. 
 
 XXXV. Proceedings in an appeal from a decision in a Court of 
 Law sliaU be deemed a supersedeas of execution from the time of 
 the allowance of the security ; but if the grounds of error or appeal 
 appear to be frivolous, the Court whose judgment is appealed from, 
 or a Judge upon summons, may order execution to issue or to be- 
 proceeded with. 20 V., c. 5, s- 22. 
 
 XXXVI. The assignment of, and joinder in error in law shall 
 not be used, and instead thereof a suggestion to the effect that error 
 is alleged by the one party and denied by the other, may be entered 
 on the judgment-roll. 20 V., c. 5, s. 23. 
 
 XXXVII. The suggestion shall be to the effect following ; 
 
 " The day of , in the year of our Lord, 18 . 
 
 (The day of making the entry on the Boll.) 
 
 " The plaintiff (or defendant) says that there is error in the above 
 "record and proceedings, and the defendant (or plaintiff) says 
 " there is no error therein." 20 V., c. 5, Sch. A. 2. 
 
 XXXVIII. In case the respondent intends to rely upon the pro- 
 ceeding in error being barred by lapse of time or by release of error 
 or other matter of fact, he shall give four days' notice in writing to 
 the appellant, to file and serve a copy of his grounds of error and 
 appeal instead of entering the suggestion, and the respondent shall 
 within eight days plead thereto jthe bar by lapse of time, or 
 release of error or other matter of fact, and thereupon further pro- 
 ceedings may be had according to the law and practice in England. 
 20 v., c, 5, s. 23. 
 
APPENDIX. 409 
 
 XXXIX. The roll shall be made up, and the suggestion entered 
 by the appellant, within ten days after the service of the note of the 
 receipt of the memorandum alleging error, or within such other 
 time as the Court appealed from or a Judge orders ; and in default 
 thereof or of an assignment of error in a case where an assignment 
 is required, the respondent, his executors or administrators, may 
 sign judgment of non pros. 20 V., c. 5, s. 24. 
 
 XL. In case of an appeal on a judgment against several persons 
 in which some only appeal, the memorandum alleging error and the 
 note of the receipt of such memorandum shall state the names of the 
 persons who appeal, and in case the other persons against whom 
 judgment has been given decline to join in the appeal, the same 
 may be con,tinued and the suggestion entered, stating the persons 
 who appeal, without a summons and severance, or if such other parties 
 afterwards elect to join, then the suggestion shall state them to be, 
 and they shall be deemed appellants although not mentioned as such 
 in previous proceedings. 20 V., c. 5, s. 25. 
 
 XLI. Upon such suggestion being entered, and after the security 
 required to be given by the appellant has been duly allowed, the 
 Clerk of the Court appealed from shall, on payment of his fefes, pre- 
 pare a full transcript of the judgment appealed against, and certify 
 the same under the seal of the Court, and shall forthwith transmit 
 the same to the Clerk of the Court of Error and Appeal, and the 
 cause may then be set down for argument in that Court. 20 V., c. 
 5, s. 26. 
 
 XLII. In case of an appeal upon a motion or rule for a new trial, 
 or to enter a verdict or non-suit, or upon a rule whereby a By-law 
 ha,s been quashed, the appeal shall be upon a case to be stated by 
 the parties, or in the event of difference to be settled by the Court or 
 a Judge of the Court appealed from. 20 V., c. 5, s. 27. 
 
 XLIII. The case shall set forth so much of the pleadings, evidence, 
 affidavits, documents, and the ruling or judgment objected to, as 
 may be necessary to raise the question for the decision of the Court 
 of Error and Appeal. 20 V., c. 5, s. 27 
 
 XLIV. When the case has been so stated and settled, the same 
 shall be forthwith delivered by the Appellant to the Clerk of the 
 Court of Error and Appeal, and the cause may, after the security 
 required to be given by the appellant has been duly allowed, be set 
 down forargumunt. 20 V., c. 5, s. 27. 
 
410 APPENDIX. 
 
 XLV. The appellant shall, at least f oui* clear days before the day 
 appointed for hearing the argument, deliver to the Clerk a copy for 
 each of the Judges, of the transcript of the Judgment or Case, or 
 in default, the appeal may be dismissed with costs. 20 V., c. 5, s. 
 28. 
 
 XL VI. In case of the death of one of several appellants, a sugges- 
 tion may be made of his death, and the proceedings may thereupon be 
 continued at the suit of and against the surviving appellant, as i^ 
 he were the sole appellant ; and such suggestion shall not be travers 
 able, but if untrue may be set aside on motion. 20 V., c. 5, s. 29. 
 
 XL VII. In case of the death of a sole appellant, or of all the 
 appellants, the legal representative of the sole appellant, or of the 
 last surviving appellant may, by leave of the Court or a Judge, enter 
 a suggestion of the death, and that he is such legal representative, 
 and the proceedings may thereupon be continued at the suit of and 
 against such legal representative as the appellant, and if no such 
 suggestion be made, the respondent may proceed to an affirmance 
 of the Judgment according to the practice of the Court, or take 
 such other proceedings as he may be entitled to : and such sugges- 
 tion, if made, shall not be traversable, but if untrue may be set 
 aside on motion. 20 V., e. 5, s. 30. 
 
 XL VIII. In case of the death of one of several respondents, a 
 suggestion may be made of such death, and the proceedings may be 
 continued against the surviving respondent ; and such suggestion 
 shall not be traversable; but if untrue may be set aside on motion. 
 20 v., c. 5, 3. 31. 
 
 XLIX. In case of the death of a sole respondent or of all the 
 respondents, the appellant may proceed upon giving one month's 
 notice of the appeal, and of his intention to continue the same to 
 the representative of the deceased, or if no such notice can be given 
 then upon giving the notice to the parties interested as the Court or 
 a Judge may direct. 20 V., u. 5, s. 32. 
 
 L. When on an appeal against a Judgment in any action per- 
 sonal, the Court of Error and Appeal gives Judgment for the 
 Defendant in error, interest shall be allowed by the Court for such 
 time as execution has been delayed by the appeal. 7 W. 4, c. 3, 
 s. 22. 
 
 LI. If a woman, being an appellent or respondent, marries pend- 
 ing the appeal, and Judgment be given for her, execution may 
 
APPENDIX. 411 
 
 thereupon be issued in the Court below, by the authority of the 
 husband, without any suggestion or Writ of Revivor, and if judg- 
 ment be given against her, such judgment may be executed in the 
 wife alone, or by suggestion or Writ of Revivor pursuant to the 
 Common Law Procedure Act, judgment may be obtained against 
 the husband and wife, and execution issued thereon. 20 V., o. 5, 
 s. 33. 
 
 LII. A party desirous of appealing from any Decree or Order in 
 Chancery, shall file a petition of appeal with the Clerk of the Court 
 of Error and Appeal, and shall serve a copy thereof, together with a 
 notice of the hearing of the appeal, on the respondent, his Solicitor 
 or Agent, at least two months before the time mentioned in such 
 notice for the hearing of the appeal. 20 V., c. 5, s. 34. 
 
 LIII. Such petition shall not be answered, but proceedings shall 
 go on as if the petition had been answered and as if the time named 
 in the notice had been appointed by the Court for hearing the 
 appeal. 
 
 LIV. The petition shall be in the following form : 
 
 "IN" THE COURT OP EEEOR AND APPEAi. 
 
 "Between A, B., Appellant, and C. D., Respondent. 
 " To the Honorable the Judges of the said Court. 
 " The petition of the said A. B., sheweth ; 
 
 " That a Decree {or Order) was on. pronounced by Her 
 
 " Majesty's Court of Chancery for Upper Canada, in a certain cause 
 " depending in the said Court, wherein your petitioner was plaintiff 
 " ("or defendant^ and [the above named C. D. was defendant (or 
 "plaintiff), which said Decree (or Order) has been duly entered 
 " and enrolled. 
 
 " That your petitioner hereby appeals from the said Decree (or 
 "Order), and prays that the same may be reversed or varied, 
 "or that such other Decree (or Order) in the premises may be made 
 " as to your Honorable Court seems meet. 
 
 " And your petitioner will ever pray, &o." 
 
412 APPENDIX. 
 
 (Certificate of Counsel to be added.) 
 20 V. c. 6, Sch. A. 3. 
 
 LV. In case of an appeal from the Court of Chancery, the appel- 
 lant shall bring the same to a hearing if the appeal is from a 
 Decree or Decretal Order, within one year from the pronouncing 
 thereof ; and if the appeal is from an Interlocutory Order, not being 
 a Decretal Order, then irithin six months from the pronouncing 
 the same, or within such further time in either case as may be allow- 
 ed for the purpose by the Court of Error and Appeal, or by the 
 Court of Chancery or a Judge thereof, upon special grounds shewn 
 to the satisfaction of the Court or Judge granting the same . 20. V. , 
 c. 5, s. 35. 
 
 LVI, As to a Decree or Order which, under any General Orders 
 of the Court of Chancery, does not become absolute upon the same 
 being pronounced, the time limited for appealing theref orm shall be 
 computed from the time when the same does become absolute. 20 
 v., c. 5, s. 35. 
 
 LVII. The judgment of the Court of Error and Appeal shall be 
 final where the matter in controversy does not exceed the sum or 
 value of four thousand dollars. 20 V., c. 63, s. 46. 
 
 LVIII. In a case exceeding that amount, as well as in a case 
 where the matter in question relates to the taking of any annual Or 
 other rent, customary or other duty, or fee, or any like demand of a' 
 general and public nature affecting future rights, of what value or 
 amount soever the same may be, an Appeal shall lie to Her Majesty 
 in Her Privy Council. 12 V., c, 63, s. 46. 
 
 LIX. But no such Appeal shall be allowed until the appellant has 
 given security in two thousand dollars, to the satisfaction of the 
 Court appealed from, that he wiU effectually prosecute the appeal^ 
 and pay such costs and damages as may be awarded in case the 
 Judgment or Decree appealed from be afiB.nned. 12 V., c. 63, s. 
 46. 
 
 LX. Upon the perfecting of such security, execution wUl be stay- 
 ed in the original cause. 12 V., c. 63, s. 64, and see ante ss. 16, 17, 
 35. 
 
 LXI. But the provision of the sixteenth section of this Act shall 
 apply to such Appeal, and the completion of the security hereby re- 
 quired shall not have the effect of staying execution in the cause, in 
 

APPENDIX. 
 
 413 
 
 the different cases to which the said section relates, unless the pro- 
 visions in the said section be complied with. 12 V., c. 63, s. 46. 
 
 LXIl. Every Judge of the Court of Error and Appeal shall have 
 authority to approve of and allow the security to be given by a party 
 who intends to appeal to Her Majesty in Her Privy Council, whether 
 the application for such allowance be made during the sitting of the 
 said Court, or at auy other time. 20 V., c. 5, s. 36. 
 
 LXIII. Costs awarded by Her Majesty in Her Privy Council, 
 upon an appeal, shall be recoverable by the same process as costs 
 awarded by the Court of Error and Appeal. 20 V., c. 5, s. 37. 
 
 liXIV. The Judges of the Court of Error and Appeal, or any five 
 or more of them, of whom the Chief Justice' of Upper Canada and 
 the Chancellor shall be two, may from time to time make such gen- 
 eral rules and orders for the effectual execution of this Act, and of 
 the intention and object hereof, and for fixing the costs to be allow- 
 ed in respect of proceedings in the Court, and for regulating the 
 different proceedings in appeal, as to them may seem expedient ; 
 and may also from time to time alter and amend any of the existing 
 rules, or any rules made under the authority of this Act, and make 
 other rules instead thereof ; and until such rules be made, the 
 present rules and existing practice and mode of proceeding in the 
 Court shall continue in force. 20 V., c. 5, s. 38. 
 
 LXV. The Clerk of the Court of Appeal shall not take for his own 
 use or benefit, directly or indirectly, any fee or emolument whatever 
 except the salary to which he is entitled as Registrar of the Court 
 of Chancery, and all fees, received by or on account of the Registrar, 
 as Clerk of the Court of Appeal, shall form part of the Consolidated 
 Revenue Fund of the Province. 12 V., c. 63, s. 43. 
 
 LXVT. The Clerk of the Court of Error and Appeal shall, on the 
 first day of January, April, July and October in every year, render to 
 the Minister of Finance, a true Account in writing, of all the fees re- 
 ceived by or on account of the office of Clerk, in such form and with 
 such particulars as the Minister of Finance from time to time 
 requires ; and such Accounts shall be signed by the Clerk, and the 
 correctness thereof shall be by him declared before one of the 
 Judges of the Court ; and the Clerk shall, within ten days after the 
 rendering of the Account, pay over the amount of the fees to the 
 Receiver General, and in case of default, the amount due by the 
 Clerk shall be deemed a special debt to Her Majesty. 12 V., c. 63, 
 s. 44. 
 
414 APPENDIX. 
 
 ORDERS OF THE COURT OP ERROR A]!TD APPEAL. 
 3bd July, 1850. 
 
 1. That the first process in appeal from judgments of the Court of 
 Queen's Bench or Common Pleas, shall be by a writ of appeal, 
 which may be in the following form : — 
 
 UPPER CANADA. 
 
 [L. S.] Victoria, <fec, 
 
 To the Honourable Chief Justice of the Court of , greet- 
 ing : 
 
 Whereas, in the record and proceedings, and also in the giving of 
 Judgment in a certain sxiit in our Court of our Bench for Upper 
 Canada (or in the Court of Common Pleas) between A. B. and 0. 
 D., in a plea of trespass on the case (or as the case may be) as it is 
 said manifest error hath intervened, as by the said (appellant) we are 
 informed : we therefore, being willing that the error, if any there 
 be, should, according to the laws of Upper Canada, be duly correct- 
 ed, do command you that without delay you send under the seal of 
 the said Court the record and proceedings aforesaid, with all things 
 concerning the same, to our Court of Error and Appeal, that the 
 said Court of Error and Appeal (the record and proceedings afore- 
 said being seen and examined) may further cause to be done there- 
 upon what of right and according to the laws aforesaid ought to be, 
 done. 
 
 Witness the Honourable , Chief Justice, <&c. 
 
 2. That such writ may issue in all cases where by law an appeal 
 lies to this Court from the Judgment of either of the Courts of 
 Qneen's Bench or Common Pleas, upon security being perfected as re- 
 quired by the statute in that behalf, and upon a certificate thereof 
 signed by the chief clerk of the Court appealed from, together with a 
 prcecipe for such writ being filed wibh the clerk of this Court ; such 
 writ to be issued under the seal of this Court and signed by the clerk 
 thereof, and to be tested in the name of the Chief Justice or senior 
 Judge thereof for the time being on the day of the same issuing, and 
 to be made returnable on the fifteenth day after the day on which 
 the same shall issue. 
 
 3. That, unless otherwise specially ordered, such security shall be 
 personal and by bond, and may be in the form prescribed in rule 
 number five, and shall be filed in the principal office of the Court 
 appealed from. 
 
APPENDIX. 415 
 
 4. That the security for costs reqvdred by the statute 12 Vic, c. 
 63, sec. 40, shall be given by bond to the respondent or respondents 
 in the sum of one hundred pounds, being the sum named in the 
 statute, which bond shall be executed by the appellant or appellants, 
 or one of them, and by two sufficient securities, (or if the appellant 
 or appellants be absent from or do not reside in Upper Canada, then 
 by three sufficient securities,) and the conditions thereof Shall be to 
 the effect that the appellant or appellants shall and will effectually ■ 
 prosecute his or their appeal, and pay such costs or damages as shall 
 be awarded in case the judgment appealed from shall be affirmed- or 
 in part affirmed. The bond and conditions may be in the form 
 given by rule number five. 
 
 5. That the bond for securing costs shall be in the following 
 form.: 
 
 Know all men by these presents that we A. B. of , 0. D. of 
 
 , and E. F. of , are jointly and severally held and 
 
 bound unto G, H. of in the penal sum of lawful money of 
 
 Canada, for which payment well and truly to be made we bind our, 
 selves and each of us by himself, our, and each of our heirs, execu- 
 tors, and administrators respectively, firmly by these presents. 
 
 Witness our hands and seals respectively, the day of , in the 
 
 year of our Lord . 
 
 Whereas the (appellant) alleges and complains that in the giving 
 of Judgment in a certain suit in her Majesty's Court of Queen's 
 Bench, (or the Court of Common Pleas, as the case may be) in Upper 
 Canada, between (the defendant) and (the appellant)': in a plea of 
 
 , manifest error hath intervened, wherefore the said (appellant) 
 
 desires to appeal from the said judgment to the Court of Error and 
 Appeal. 
 
 Now the condition of this obligation is such, that if the said 
 (appellant) do and shall effectually prosecute such appeal and pay 
 such costs and damages as shall be awarded in case the judgment 
 aforesaid to be appealed from shall be affirmed, then this obligation 
 shall be void, otherwise shall remain in full force. 
 
 6. That when the judgment to be appealed from directs the pay- 
 ment of money, and the appellant desires to stay the execution 
 thereof, then the bond or secxxrity aforesaid shall be double the 
 amount of such judgment, unless the same shall be in debt or bond 
 for a penal sum or upon a warrant of attorney or Cognovit Actionem 
 
416 APPENDIX. 
 
 or otherwise, exceeding in amount the sum really due, in which case 
 the bond shall be in double the true or real debt and costs only ; 
 and the amount so recovered, and of such true and real debt and 
 costs shall be stated in the condition or recital to the condition of 
 the bond or security, immediately after the statement of the nature 
 of the action, and the condition shall be to the efTeet that the said 
 
 (appellant) shall effectually prosecute such appeal, and if the said 
 judgment so to be appealed from or any part thereof shall be affirm- 
 ed, shall pay the amount directed to be paid by the said judgment) 
 or the part of such amount as to which the said judgment shall be 
 affirmed (if it be affirmed only in part) and aU damages which shall 
 be awarded against the said appellant in the appeal : provided always, 
 that in cases where the security to be given shall be in a sum above 
 five hundred pounds, it shall be in the discretion of the Court 
 appealed from, or of a Judge thereof in vacation, to allow security to 
 be given by a large number of obligors, apportioning the , amount 
 
 among them as shall appear reasonable. 
 
 7. That when the judgment appealed from shall be in an action 
 of ejectment, the security required by the last preceding rule shall 
 be taken in double the yearly value of the property in question ; 
 and in cases where the matter in question shall relate to the taking 
 of any annual or other rent, customary or other duty or fee, or any 
 other such Hke demand of a general and public nature, affecting 
 future rights, the amount in which security shall be takeu in 
 addition to the security required for costs shall be fixed by order of 
 a Judge of the Court appealed from. 
 
 8. That the security required by the two last preceding rules 
 shall be given by bond, and the recitals and conditions of such bond 
 shall be such as wiU conform to the provisions of the said two rules, 
 with such further or other conditions, in cases where the judgment 
 is not for the payment of a sum of money only, as the Judge 
 approving such security may think fit to order. 
 
 9. That the parties to such bond, as sureties, shall by affidavit re- 
 spectively, make oath that they are resident householders or free- 
 holders in Upper Canada, and severally worth the sum mentioned in 
 such bond, over and above what wiU pay and satisfy all their debts ; 
 which affidavit may be in the following form : — 
 
 In the (style of Court.) 
 
 A. B., plaintifi; ) E. F. of , and G. H. of , severally 
 
 V. > make oath and say : and first this dependent 
 
 C. D., defendant. ) B. F. for himself saith, that he is a resident 
 
APPENDIX. 417 
 
 inhabitant of Upper Canada, and is a householder in (or a free- 
 holder in) , and that he is worth the sum of (the sum in which 
 
 he stands bound by the penalty) over and above what will pay all 
 his debts ; and this deponent, Gr. H ., for himself saith, that he is 
 a resident inhabitant of Upper Canada, and is a householder in (or 
 
 freeholder in) , and that he is worth the sum of (as the case 
 
 inay be) over and above what wUl pay all his debts. 
 
 (Signed,) E. F. 
 
 G. H, 
 
 Sworn by the above named deponents, B. F. and G. H., at , 
 
 in the county of , the day of , 18 — , before me, 
 
 X. T., 4 Commissioner, dbc. 
 
 10. That fourteen day's notice shall be given of the time and place 
 ^t which application wiU be made to the Court from whose judg- 
 ment it is intended to appeal, or to a Judge thereof in vacation for 
 the allowance of such security ; which notice shall contain the nameg 
 and additions of the obligors. 
 
 11. That the allowance of such security may be opposed by affi- 
 davit ; but in the absence of any such opposition, the affidavit above 
 mentioned shall be sufficient, in the discretion of the Judge, to 
 warrant the allowance thereof. 
 
 12. That, if allowed, the officer of the Court shall endorse on such 
 bond the word " allowed," prefixing the date and signing his name 
 thereto ; upon which, such security shall be deemed perfected. 
 
 13. That cases coming within the twelfth Victoria, chapter sixty- 
 three, section forty, numbers two and four, shall be disposed of by 
 special order, as the occasion may require ; except that the security 
 thereunder shall be personal and by bond as aforesaid. 
 
 14. That if in any case judgment shall be hereafter given in any 
 of the said Courts upon a question of law not appearing upon the 
 record, but which judgment iwould be subject to be reviewed in 
 error, if the question thereby determined were presented to the 
 Court on a special verdict, or by biU of exceptions or demurrer 
 to evidence, that in every such case the judgment so given may be 
 appealed from, notwithstanding the question shall not appear on 
 record. 
 
 Provided, 1st. — That before the expiration of three calendar 
 months from the day on which the decision shall be pronounced, the 
 party intending to appeal shall, by his attorney, file in the office of 
 27 
 
418 APPENDIX. 
 
 the clerk of the Court in which the caiiae shall be or shall have been 
 depending, and shall serve upon the opposite party, his attorney or 
 agent, a notice to the following effect : 
 
 "The plaintiff (or defendant as the case may be) intends to 
 appeal from the judgment of the Court upon the rule nisi for non- 
 suit or for new trial" (or as the case may be.) 
 
 2nd. — That the execution be not stayed unless security be given 
 as in other cases of appeal. 
 
 3rd. — That in case of any appeal under this rule, the party ap- 
 pealing shall prepare a written statement of the case, and of the 
 question determined, and of the judgment and decision thereon from 
 which he appeals ; which, being signed by both parties or their re- 
 spective attorney or attorneys, and approved of by one of the Judges 
 of the Court appealed from, shall be transmitted with the transcript 
 of record certified by the clerk. 
 
 4th. — That in case the parties or their attorneys shall not agree in 
 such statement, then the appellant may, on summons to the 
 opposite party apply to a Judge of the Court appealed from to 
 approve of the statement to be submitted to him ; which Judge, on 
 hearing the other party, or in case of his non-attendance, on hear- 
 ing the appellant, may approve or modify the statement, as to 
 him shall appear proper. 
 
 5th. — That the Court of Appeal may, in its discretion, remit such 
 statement to be amended as may appear necessary for more correctly 
 exhibiting the point or points which have been determined in the 
 Court below. 
 
 6th. — That when the Court of Appeal shall have determined the 
 matters brought before them under this rule, they shall certify their 
 decision, and send the same to the Court below, with such order as 
 to entering judgment for either party or otherwise, as the case shall 
 appear to them to require. 
 
 15. That the writ of appeal from either of the said Co)nmon Law 
 Courts, upon being presented to the chief clerk of the Court appeal- 
 ed from, shall by endorsement thereon, be allowed by him if the 
 appellant has given the requisite security, such allowance to be aa. 
 follows : 
 
 Allowed the day of , 18 — . 
 
 (Signature of the Clerk.) 
 
APPENDIX. 419 
 
 And that when allowed, the said clerk, on payment of legal fees, shall 
 proceed to comply with the order of the writ, and the Cliief Justice 
 or some other Judge of the Court appealed from, shall endorse a 
 return thereon as follows : 
 
 By Tirtue of the within writ, the record and proceedings therein 
 
 mentioned, are sent under the seal of the Court of , as within 
 
 it is commanded ; such record and proceedings being contained in 
 the transcript thereof hereunto annexed and signed by (officer's 
 n^me), clerk of the said Court. 
 
 (Signed,) 
 
 Chief Justice (or Judge.) 
 
 16. That the clerk of the Court shall, in order to such return, 
 cause a fair and full transcript of the judgment appealed from, cer- 
 tified under the seal of the Court and signed by him, to be affixed to 
 the writ of appeal ; which transcript, so certified and transmitted, 
 with such further certificate as may be required in cases under the 
 fourteenth rule, shall be deemed a sufficient compliance with the 
 writ. 
 
 17. That if any writ of appeal be not duly returned, a rule to re- 
 turn the same may be obtained at any time as of course, on filing a 
 motion paper therefor, with an affidavit of the allowance of the writ 
 and the delivery thereof to the clerk of the Court appealed from, at 
 least fourteen days previous to such application and of its non- 
 return. 
 
 18. That if not returned within four days after service of such rule 
 on the Chief Justice or some other Judge, and on the chief clerk of 
 the Court appealed from, special apphcation for further proceedings 
 must be made to the Court of Error and Appeal, upon a special affi- 
 davit of the circumstances. 
 
 19. The further time to return such writ may be had upon appli- 
 cation to the said Court of Error and Appeal, or to any Judge 
 thereof. 
 
 20. No rule to allege diminution, nor rule to assign causes of ap- 
 peal, nor scire facias quare eocecutionem non, shall be necessary, in 
 order to compel an assignment of errors. 
 
 21. No rule to certify or transcribe the record shall be necessary ; 
 and if the appellant does not, in eight days after the filing of the re- 
 turn of the writ of appeal, file and serve a copy of his grounds of 
 appeal, the respondent may, by notice in writing, demand the same ; 
 
420 
 
 APPENDIX. 
 
 and if the grounds of appeal are not filed within eight days after 
 rervice thereof on the appellant, his attorney or agent, the appeal, 
 on proof thereof by afB^davit, shall be dismissed with costs. 
 
 22. That within eight days after the grounds of appeal shall be 
 filed and served, the respondent shall file and serve hia answer or 
 joinder thereto ; which, unless it shall be necessary to plead specially 
 shall be the common plea or joinder of "in nulla est erratum ;'' or 
 if he neglects to do so, the appellant may in writing demand the 
 same; and unless the respondent file his answer or joinder in ap- 
 peal within eight days after service of such demand, the respondent, 
 his attorney, or agent, shall be precluded from filing the same, with- 
 out the leave of the Court or a Judge thereof first had and obtained 
 upon a rule nisi or summons ; and the Court will proceed ex parte 
 to hear the cause on the part of the appellant, and to give judgment 
 therein without the intervention of the respondent. 
 
 Provided always, that either party respectively may obtain further 
 "time to file the grounds of appeal, or the answer or joinder there- 
 to, by the order of the Court or of any Judge thereof, upon the re- 
 turn of a rule nisi or summons to be issued and served in that be- 
 half. 
 
 Provided also, that if the respondent does not intend to resist the 
 appeal, he may give notice thereof to the appellant ; and on proof 
 of such notice, judgment of reversal shall be given for the appellant 
 as of course. 
 
 Provided also, that in case the grounds of appeal are not filed and 
 served eight days next before the first day of July in any year, then 
 the respondent shall be allowed as many days after the twenty-first 
 day of August next following as will be suflioient to complete such, 
 number of eight days within which to file his answer or joinder 
 thereto. 
 
 23. That when the grounds of appeal and answer thereto are filed 
 ithe cause shall, on application of either party, be set down for argu- 
 ment by the Clerk of this Court, for a day to be fixed, of -^hich no- 
 tice shall be duly given to the opposite party, his attorney or agent, 
 at least four days before the day appointed for the hearing of such 
 appeal. 
 
 24. Four clear days before the day appointed for argument, the 
 appellant shall deliver to the Clerk of the Court of Error and Ap- 
 peal, for the use of the Judges thereof, two copies of the judgment 
 
APPENDIX. 421 
 
 of the Court below, and of the reasons of appeal, and of the plead- 
 ings or answers thereto ; and in default thereof the appeal may be 
 dismissed with costs. 
 
 25. That the result of the appeal in this Court shall be certified to 
 the Court appealed from by the Clerk under the seal of this Court, 
 which certificate shaU briefly state that the judgment has been 
 affirmed, reversed or modified (as the case may be,) with or without 
 costs ; and when with costs, to be paid by either party, adding the 
 amount thereof when the same shall have been taxed, as taxed ; 
 and that upon such certificate being filed in the Court below, any 
 entry thereof may be suggested on the roU, and further proceedings 
 in that Court be had, according to the course and practice of such 
 Court ; and in case of any new question arising, according to the 
 course and practice of the Court of Queen's Bench in England. 
 
 Provided that the respondent, if the successful party, may proceed 
 upon the judgment by execution, and upon the bond or security re- 
 quired to be given under the statute and the foregoing rule in that 
 behalf ; or he may adopt either course separately, without prejudice 
 to his other remedy by waiver, delay or otherwise. 
 
 26. That all writs and all rules and orders of this Court in cases 
 appealed shall be tested or bear date the day of their issuing, and be 
 signed by the Clerk of the Court. 
 
 27. That no writ of appeal shall be a supersedeas of execution 
 until service of the notice of the allowance thereof, containing a 
 statement of some particular ground of appeal intended to be argued. 
 Provided, that if the error stated in such notice shall appear to be 
 frivolous, the Court or a Judge, upon summons and proof of the 
 service thereof by affidavit, may order execution to issue. 
 
 28. That in appeals from the Court of Chancery, all securities 
 under the fortieth section of the said Act of the Provincial Parlia- 
 ment, passed in the twelfth year of the reign of her present Majesty, 
 chapter sixty-three, shall be in the form of a bond, which, together 
 with the affidavit of justification, shall be filed with the Eegiatrar of 
 the said Court, and notice thereof served on the respondent, his so- 
 licitor or agent ; and the same shall stand allowed, unless the re- 
 spondent shall within fourteen days after service of such notice 
 move the said Court to dissallow the same. A special application 
 shall be necessary to stay proceedings under any of the exceptions in 
 the said section of the said act. 
 
422 APPENDIX. 
 
 29. That the petition of appeal shall be in the form set forth in 
 the schedule to this order. The petition of appeal shall be filed with 
 the Clerk of the Court, and a copy thereof, together with a notice 
 of the hearing of the appeal shall be served on the respondent, his 
 solicitor or agent, at least two months before the time named in 
 such notice for the hearing of the appeal. Such petition shall not 
 be answered, but at the time named in such notice the parties must 
 attend to argue the appeal ; and upon the filing of the petition, and 
 service of a copy thereof and of such notice, the appeal shall stand 
 in the same plight as if the petition had been answered, and such 
 time appointed by this Court for the hearing thereef. 
 
 The Schedule to the foregoing Order. 
 
 IN THE COUET Or BREOR AND APPEAL. 
 
 Between , appellant, and respondent. 
 
 To the Honourable the Judges of the said Court. 
 
 The humble petition of the said (appellant) sheweth : 
 
 That a (decree or an order) was lately and on pronounced by 
 
 her Majesty's Court of Chancery for Upper Canada, in a certain 
 
 cause depending in the said Court wherein your petitioner was 
 
 and the above named was ; which said (decree or order) 
 
 has since been duly entered and enrolled. 
 
 That your petitioner feels himself aggrieved by the said (decree or 
 order), and he hereby appeals therefrom, and humbly prays that the 
 same may be reversed or varied, or that your lordships wUl make 
 such other order or decree in the premises as to your Lordships 
 shall seem meet. 
 
 And your petitioner will ever pray, (fee. 
 (Certificate of Counsel.) 
 
 30. That the printed cases shall be and are hereby abolished, but 
 copies of the pleadings and evidence shall be printed, as is at present 
 done in the appendix to the case, to which the reasons of appeal, 
 and for supporting the decree or order, shall be appended ; and the 
 same rule shall apply to such printed copies and reasons as now ap- 
 ply to the printed cases, and the same shall for all purposes be con- 
 sidered th9 printed cases of the appellant and respondent respective- 
 ly. Provided always, that nothing herein contained shall prevent 
 the parties from joining in printing such copies as they now do in 
 printing the appendix, if they shall be so disposed. Such printed 
 
APPENDIX. 433 
 
 e&aes must be deposited with the clerk of the Court for the use of 
 the Judges, at least four days before the hearing of the appeal. 
 
 31. That when it shall be intended to appeal to Her Majesty in 
 the Privy Council, the securities required by the statute twelfth 
 Victoria, chapter sixty-three, section forty-six, shall be personal and 
 by bond to the respondent or respondents — such bond to be execu- 
 ted by the appellant or appellants, or one of them, and two sufficien 
 sureties (or if the appellant or appellants be absent from or do not 
 reside in Upper Canada, then by three sufficient sureties) in the 
 penal sum of five hundred pounds, in cases coming within the first 
 part of the said section forty-six ; the condition of which bond shall 
 be to the effect that the appellant (or appellants) shall and wUl ef- 
 fectually prosecute his (or their) appeal, and pay such costs and dam- 
 ages as shall be awarded in case the judgment (or decree) appealed 
 from shall be affirmed, or in part affirmed, and that execution shall 
 not be stayed in the original cause until security shall fur'iher be 
 given by bond, in conformity to the sixth, seventh and eighth rules, 
 when from the nature of the case such further security shall be re- 
 quisite : and in cases from Chancery, application to the Court of 
 Appeal to stay proceedings shall be by motion or notice ; which mo- 
 tion, if granted, shall be upon such terms as to security under the 
 statute or otherwise, as the circumstances and nature of the case 
 require. 
 
 32. That the bond or security referred to in the last rule shall be 
 in the following form : 
 
 Know all men by these presents, that we A. B., of , C. D., 
 
 of , and E. F., of , are jointly and severally held and firm> 
 
 ly bound unto G. H., of , in the penal sum of of lawful 
 
 money of Canada, for which payment well and truly to be made, we 
 bind ourselves, and each of us by himself, our and each of our heirs, 
 executors and administrators respectively, firmly by these presents. 
 
 Witness our hands and seals respectively, the day of , in 
 
 the year of our Lord . 
 
 , Whereas, [the appellant) alleges and complains, that in the giving 
 of judgment in a certain suit in her Majesty's Court of Error and 
 Appeal in Upper Canada, between (the respondent) and (the appel- 
 
 Jp,nt) manifest error hath intervened : wherefore the said 
 
 (appellant) desires to appeal from the said judgment to Her Majesty 
 in Her Majesty's Privy Council : 
 
 Now the condition of this oibligation is such, that if the said ap- 
 
424 APPENDIX. 
 
 pellant do and shall effectually prosecute such appeal and (or) pay 
 such costs and damages as shall be awarded, in case the judgment 
 aforesaid to be appealed from shall be aflS.rmed, or in part affirmed, 
 then this obligation shall be void otherwise shaU remain in fuU force. 
 
 33. That in every case of appeal to Her Majesty in Council, the 
 obligors, parties to any bond as sureties, shall justify their sufficiency 
 by affidavit, in the manner and to the same effect as is required by 
 rule number nine of this Court. 
 
 34. In cases appealed from either of the Courts of Common Law, 
 or from the Court of Chancery, the same fees and allowances shall 
 be taxed in appeal by the clerk of the Court of Error and Appeal for 
 attorneys and solicitors, or any officer of the said Court, as are al- 
 lowed for similar services in the Court from which the appeal shall 
 have been brought ; and that counsel's fees shall be taxed in the 
 discretion of the clerk, provided that no fee to counsel exceeding 
 ten pounds shall be taxed without an order of the Judge who presi- 
 ded on the argument, or in his absence of the next senior Judge. 
 
 35. That the regular and appointed days or times of sitting of 
 this Court shall be the second Thursday after the several terms of 
 Hilary, Easter, and Michaelmas, as appointed by the statute 12 
 Vic, ch. 63, sec. 13, at eleven o'clock in the forenoon : provided 
 however, that the said Court may adjourn from time to time, and 
 meet at such other periods as shall be appointed for the hearing and 
 disposing of any business brought before it. 
 
 ORDER 27th JUNE, 1856. 
 
 Ordered that copies of the pleadings and evidence shall be printed 
 in all cases appealed, together with the reasons of appeal, and the 
 reasons relied upon for supporting the judgment, decree or order ; 
 and the opinions of the Judges in the Court below, when not pub- 
 lished in the Reports ; which copies shall, for all purposes, be con- 
 sidered the printed cases of the appellant and respondent respec- 
 tively, and a copy must be deposited with the Clerk of the Court for 
 the use of each of the J udges at least four days before the hearing 
 of the appeal. 
 
 ORDERS 21sT DECEMBER, 1858. ^ 
 
 It is ordered that, after the present sittings of this Court, the 
 Clerk shall receive no appeal books unless they be printed, on one- 
 side only, on good paper, in demi quarto form, with small pica type 
 
APPEWDIX. 425 
 
 It is ordered that in all cases in ■which the case for appeal is re- 
 quired to be settled by any Judge of either of the Courts ; the ap- 
 pellant shall serve on the opposite party a copy of the case he in- 
 tends to submit for the Judges' approval, at least four days before 
 the application to have the case settled. 
 
427 
 
 APPENDIX OF FORMS. ^'" 
 
 APPENDIX OF FORMS. 
 
 I. — Dbmureees. 
 
 1. For want of parties. 
 (Style of cause..) 
 
 The Demurrer of the defendant C. D. to the Bill of Complaint 
 of A. B., the above named plaintiff. 
 
 The defendant by protestation not confessing all or any of the 
 matters or things in the plaintiff's bill of complaint contained to be 
 true in such manner and form as the same are therein set forth and 
 alleged doth demur to the said bUl ; and for cause of demurrer 
 sheweth that it appears by the said bill that there are not proper 
 parties thereto, inasmuch as it appears upon the face of the said 
 bin that the creditors of the said F. 0. other than the said plaintiff, 
 who executed the instrument or document in the bill mentioned, 
 are necessary parties to the said bill by name, but yet the plaintiff, 
 has not made the said creditors parties to the said bill by name ; 
 whereupon, and for divers other good causes of demurrer appear- 
 ing in the said bill, the defendant doth demur thereto and humbly 
 denmnds the judgment of this honourable court whether he shall 
 be compelled to make any further or other answer to the said bill, 
 and prays to be dismissed with his costs and charges in this behalf 
 most wrongfully sustained. 
 
 2. For want of Equity. 
 (Style of cause.) 
 
 This defendant by protestation, <fec. (as in No. 1) ; and for cause 
 of demurrer sheweth that the plaintiff hath not in and by his said 
 bill made and stated such a case as entitles, him in a Court of Equity 
 to any relief against this defendant as to the matters contained in 
 the said bill or any of such matters ; whereupon and for divers other 
 good causes of demurrer appearing in the said bill the defendant 
 doth demur thereto and demands the judgment of this Court whether 
 he shall be compelled to make any further or other answer to the 
 said biU, and prays to be hence dismissed with his costs in this 
 behalf most wrongfully sustained. 
 
428 APPENDIX OF FORMS. 
 
 3. For want of Egidiy and ivant of parties. 
 {Style of cause.) 
 
 These defendants by protestation, &c., (as in No ].), do demur 
 thereto, and for causes of demurrer shew : That the said bill doth 
 not contain sufficient matter of equity whereupon this Honourable 
 Court can ground any decree in favor of the said complainant or 
 give the complainant any relief as against these defendants, and 
 furthe^ that, it appears by the plaintiff's own shewing in the said 
 bin. that a personal representative (as the case may be) of Gr. H., 
 deceased, in the said bill mentioned, is a necessary party to the 
 said bill ; but yet the said complainant hath not made any such 
 personal representative of the said G. H., deceased, a party to his 
 said bUl, and thereupon and for divers other good causes of demurrer 
 in the said bill contained, these defendants do demand the judgment 
 of this Honourable Court, whether they shall be compelled to make 
 any further or other answer to the said bill, and they pray to be 
 hence dismissed with their reasonable costs in this behalf most 
 ■wrongfully sustained. 
 
 II. — Petitions. 
 
 4. Petition to have a person declared a Imiattc and a committee 
 appointed over his person and property. 
 
 In Chancery. 
 
 In the matter of R. B., of the 
 City of Toronto, in the County of 
 York, baker, a supposed lunatic. 
 To the Honourable, <fec. 
 
 The humble petition of T. L. B., of the City of Toronto, in the 
 County of York, carpenter, sheweth : — 
 
 1. The above named R. B., who is your petitioner's father, on 
 or about the day of , became a lunatic as your peti- 
 tioner is advised aild doth verily believe, and he hath since the 
 
 day of , been an inmate of the Provincial Lunatic Asylum 
 
 at Toronto. 
 
 2. Before the said day of , the said R. B. car- 
 ried on the business of a baker, in the City of Toronto. 
 
 3. The said R. B. was on the said day of '-, and still 
 
 is seized of or entitled to certain real estate, consisting of — — . 
 
APPENDIX OF FORMS. 429 
 
 4. The said R. B. was not possessed of 9,ny personal property ex- 
 cept the household furniture in his dwelling house on Street, 
 
 and the same is stUl in the said house and used by his wife and the 
 other members of the family. 
 
 5. The said R. B. was not indebted to any person in any amount 
 whatever, and there is no charge or incumbrance upon his real es. 
 tate or any part thereof. 
 
 6. The rents of the said houses amounting to the sum of ■ 
 
 per annum, have since the said ■ day of ', been ap- 
 plied in payment of the simi of $ , charged for maintenance of 
 
 the said R. B., in the said Asylum, and the remainder has been ex. 
 pended in the maintenance of his wife, and in the maintenance and 
 education of his infant children. 
 
 7. The family of the said R. B. consists of his wife, H. B ., and 
 his chUdren, your petitioner, &c. 
 
 8. The said R. B. is wholly incapable of transacting any business 
 or of managing his affairs and property, and your petitioner, and the 
 other members of the family, are desirous that a commission of lu- 
 nacy should issue out of this Honourable Court, to enquire as to the 
 alleged lunacy of the said R. B., or that he may be declared by the 
 order of this Honourable Court to be a lunatic, and that some fit 
 and proper person may be appointed committee of the person and 
 estate of the said B. B. 
 
 9. Your petitioner therefore prays ; — 
 
 1. That a commission of lunacy 
 may issue under the seal of this 
 Honourable Court to enquire as 
 to the alleged lunacy of the said 
 B. B., or 
 
 2. That the said B. B. may be de- 
 clared by the order of this Hono- 
 rable Court to be a lunatic. 
 
 3. That some proper person may be 
 appointed committee of the person 
 and estate of the said R. B. 
 
 4. That such other order may be 
 made as may to this Honourable 
 Court seem proper. 
 
 And your petitioner will ei er pray. 
 
430 
 
 APPENDIX OF FORMS. 
 
 5. Petition by Solicitors for taxation of BUI of Costa. 
 In Chancery. 
 
 In the matter of A. B., and E . B. ^ 
 
 Solicitors of this Honourable Court. 
 
 To the Honourable the Judges of the Court of Chancery. 
 
 The petition of A. B., of the City of Toronto, gentleman, and of 
 E. B., of the same place, gentleman, solicitors of this Honourable 
 Court, 
 
 Sheweth, 
 
 1. That your petitioners were employed by X. Y., as his solici- 
 tors in a certain suit, wherein the said X. Y. was plaintiff, and C. 
 D. and E. F. were defendants. 
 
 2. On the day of , last your petitioners 
 
 delivered, as by affidavit appears, a bUl of their fees, charges and 
 disbursements in the said suit, which said bill was subscribed by 
 your petitioners according to the statute in stich case made and pro- 
 vided. 
 
 3. The said X. Y. has made no application to have the said bill 
 taxed, although more than one month has elapsed since the said biU. 
 was so delivered. 
 
 4. No action at law has been brought by your petitioners in re- 
 spect of their said bill, and the same remains unpaid. 
 
 5. The only parties interested in the costs and disbursements in 
 the said suit are your petitioners. 
 
 Your petitioners therefore pray, 
 
 1. That it may be referred to the 
 Master of this Court to tax to them 
 the said fees, charges and dis- 
 bursements, and that the said 
 X. Y. may be ordered to pay the 
 same to your petitioners imme- 
 diately after such taxation and 
 that the order to be made herein 
 may contain all usual directions 
 
APPENDIX OF FORMS. 431 
 
 and that . your petitioners may 
 have such further or other relief 
 as may seem meet. 
 
 And your petitioners will ever 
 pray. 
 
 6. Petition for delivery and taxation of Solicitor's Bill. 
 
 In Chancery. 
 
 In the matter of X. Y., a solicitor 
 of this Court. 
 
 To the Honourable the Judges of the Court of Chancery. 
 
 The petition of A. B., of the township of London, in the County 
 of Middlesex, Yeoman. 
 
 Sheweth, 
 
 1. Your petitioner employed the above named X. Y. to take and 
 prosecute certain proceedings in this Court against one C. D., at 
 the suit of your petitioner. 
 
 2. Certain proceedings were taken by the said X. Y., in your pe- 
 titioner's behalf. 
 
 3. The said X. Y. hath not rendered to your petitioner a bUl of 
 his fees, charges and disbursements incurred and disbursed by him 
 in carrying on the said suit, nor has he delivered over to your peti. 
 tioner the papers and documents in his possession relating to the 
 said suit. 
 
 4. Your petitioner is desirohs that the said X. Y. should deliver 
 to him a bill of his costs, and that the same may be taxed by the 
 proper officer of this Court, your petitioner submitting to pay what 
 upon such taxation shall be found due to the said X. Y. 
 
 Your petitioner therefore prays, 
 
 1. That the said X. Y. may be or- 
 dered to deliver to your petitioner 
 a bill of his costs, charges and dis- 
 bursements incurred and disbursed 
 by him in the said suit, and that ' 
 the same may be referred to the 
 
432 APPENDIX OF rORMS. 
 
 Master of this Court for taxation, 
 and upon payment by your peti- 
 tioner of what may be found to 
 be due to the said X. Y. upon 
 such taxation, or if it shall appear 
 upon such taxation that the said 
 bin is overpaid, that the said X. 
 T. may be ordered to deliver to 
 your petitioner or to whom he may 
 appoint, all papers, writings, and 
 documents in his possession or 
 power relating to the said suit, and 
 that the said X. Y. may be order- 
 ed to refund and repay to your 
 petitioner what shall appear to be 
 due to him upon such taxation 
 and that the said order may con- 
 tain all other necessary directions 
 
 And your petitioner will ever 
 pray. 
 
 III. AFFIDAVITS 
 
 7. To prove mortgage debt. 
 (Style of cause.) ■ 
 
 I. A. B. of <fec. 
 
 1. Under and by virtue of an indenture bearing date <fec. , and 
 made between <fec. , I am mortgagee of the lands and premises there- 
 in comprised for securing payment of the sum of , together 
 
 with interest thereon. 
 
 2. I have not, nor hath nor have any other person or persons by 
 my order, or to my knowledge or belief for my use received the 
 
 said principal sum of or any part thereof, or the interest 
 
 which accrued due thereon since the day of or any 
 
 part thereof, or any security or satisfaction for the same respectively 
 or any part thereof, save and except the said mortgage. 
 
 3. The whole of the said sum of together with interest 
 
 thereon, from the said day of , still remains 
 
 justly due and owing to me under and by virtue of the said mort- 
 gage. 
 
Co''^\ 
 
 A^ 
 
 
 ^ l^^i^iJ^^ C^'4Zk^^ ^ii-^i^-u-^ 
 
 
APPENDIX OF FORMS. 433 
 
 4. The whole of the said sum of was actually advanced 
 
 Ijy me to the defendant, upon the security of the^Saad^mort^k^e. 
 
 5. I am not now, and never have been since the date of the said 
 mortgage, nor hath nor have any other person or persons by my 
 order or to my knowledge or belief for my use, been in the occupa- 
 tion of the said mortgaged premises or of any part thereof, nor in 
 receipt of the rents, issues or profits of the same or any part 
 thereof. 
 
 8. Of plaintiff for final order of Foreclosure. 
 
 1. I have not nor hath nor have any person or persons by my 
 order, or to the best of my knowledge, information or belief for my 
 
 use, received the sum of being the amount found due to 
 
 me by the report of the Master at in this cause,'or any part 
 
 thereof, or any security or satisfaction for the same or for any part 
 
 thereof, but the whole of the sum of remains justly due and 
 
 owing to me under the mortgage security in question in this cause 
 
 2. I am not now, and since the date of the said mortgage, never 
 have been, nor hath nor have any person or persons by my order or 
 for my use, been in possession of the lands and premises comprised 
 in the said mortgage, or of any part thereof, nor in receipt of the 
 rents, issues and profits of the same or of any part thereof. 
 
 9. Of Execution. 
 
 1. On the day of I was present and did «ee A. B., 
 
 manager of the Branch or Agency of the Bank at , 
 
 sign the certificate hereunto annexed at , in the county of 
 
 2. The name "A. B." subscribed thereto is the proper handwrit- 
 ing of the said A. B., and the name " 0. D." subscribed as witness 
 is my handwriting. 
 
 10. Verifying account of personal estate. 
 (Style of cause.) 
 
 We, A. B., of (fee, and C. D., of &c., and E. F. of (fee, severally 
 make oath and say as follows : 
 
 1. We have according to the best of our knowledge, remembrance 
 jaformation and belief, set forth in the first schedule hereunder 
 written a full, true and particular account and inventory of the 
 
 28 
 
434 APPENDIX or FORMS. 
 
 personal estate of or to which the testator in the decree 
 
 dated made in this cause named or referred to, and who 
 
 died on the day of , was possessed or entitled at the 
 
 time of his death, {and not by him specifically bequeathed.) 
 
 2. Save what is set forth in the said first schedule, (and what is 
 by the said testator specifically bequeathed,) the said testator was not 
 to the best of our knowledge, information, or belief at the time of 
 his death possessed of or entitled to any debt or sum of money due 
 to him from us, or any or either of us, on any account whatsoever 
 nor to any leasehold or other personal estate, goods, chattels, or effects, 
 in possession or reversion, absolutely or contingently, or otherwise 
 howsoever. 
 
 3. The said testator's funeral expenses have been paid and the 
 
 same consist of the items of disbursement numbered and 
 
 in the account hereinafter referred to. 
 
 4. We have in the account marked A., now produced and shown 
 to us, according to the best of our knowledge, information and 
 belief set forth a full, true and particular account of the personal 
 estate of the said testator (not by him specifically bequeathed) which 
 has come to our hands or to the hands of any other person or per- 
 sons by our or any or either of our order, or for our or any or either 
 of our use, with the times when the names of the persons from 
 whom, and on what account the same has been received, and also a 
 like account of the disbursements, allowances, and payments made 
 by us, or any or either of us in respect of or on account of the said 
 testator's funeral expenses, debts and personal estate, together with 
 the times when, the names of the persons to whom, and the purposes 
 for which, the same were disbursed, allowed or paid. 
 
 5. And we each speaking positively for himself, and to the best of 
 his knowledge and belief as to other persons, further say, that save 
 and except as appears iu the said account marked A., we have not 
 nor hath any or either of us, nor have nor hath any other person or 
 persons by our or any or either of otir order, or for our or any or 
 either of our use, possessed, received or got in any part of the said 
 testator's personal estate, nor any money in respect thereof, and 
 that'the said account marked A., does not contain any item of dis- 
 bursement, allowance, or payment, other than such as has actually 
 been disbursed, allowed or paid on the account aforesaid. 
 
 6. We further say, that to the best of our knowledge, information 
 and belief the personal estate of the said testator now outstanding or 
 
APPENDIX OF FORMS. 435 
 
 undisposed of consists of the particulars set forth in the second 
 schedule hereunder written. 
 
 7. Save what is set forth in the said second schedule there is not, 
 to the best of our knowledge, information or belief, any part of the 
 said testator's personal estate now outstanding or undisposed of. 
 
 Sworn (fee. 
 
 The first schedule above referred to. 
 
 $100 cash in the house. 
 $440 in the Bank of Toronto. 
 
 I debt due from R. O'Brien. 
 ) promissory note of John Smith. 
 I due from R. Moore on bond. 
 $90 debt due from David Kerr. 
 
 The second schedule above referred to (set out particulars in same 
 manner as above. 
 
 [For account see next page.] 
 
436 
 
 APPENDIX OF FORMS. 
 
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APPENDIX OP FORMS. 437 
 
 10. Verifying account of Heal Estate. 
 {StyU of cause.) 
 
 1. We have, according to the best of our knowledge, remem- 
 brance and belief, set forth in the schedule hereunder written, the 
 particidars of aU the real estate which the testator in the decree, 
 dated <bc., made in this cause named or referred to, and who died 
 
 on the day of was seized of or entitled to at 
 
 the date of his wiU and at the time of his death. 
 
 2. Save what is set forth in the said schedule the testator wa» 
 not to the best of our knowledge, information or belief, at the date 
 of his wiU or at the time of his death seized of or entitled to any 
 real estate in possession, remainder or reversion absolutely, contin- 
 gently or otherwise howsoever. 
 
 3. We have, according to the best of our knowledge, information 
 and belief, set forth in the schedule hereunder written, the particu- 
 lars of all the incumbrances affecting the said testator's real estate, 
 and what part thereof such incumbrances respectively affect. 
 
 4. We have in the account marked B., now produced and shown 
 to us, according to the best of our knowledge, information and be- 
 Kef, set forth a full, true and particular account of all the rents and 
 profits of the said testator's real estate which have come to our 
 hands or to the hands of any or either of us, or to the hands of any 
 person or persons by our or any or either of our order, or for our 
 or any or either of our use, and the time when, the names of the 
 persons from whom, on what account, in respect of what part of 
 such estate the same have been received, and the times when the 
 same became due, and also a like account of the disbuAements, al- 
 lowances, and payments made by us or any or either of us in respect 
 of the said testator's real estate, or the rents and profits thereof, and 
 the times when, the names of the persons to whom, and the pur- 
 poses for which the same were made. 
 
 5. We each speaking positively for himself, and to the best of 
 his knowledge and belief as to other persons, say that save and 
 except as appears in the said account marked B. , we have not nor hath 
 any or either of us, nor hath nor have any other person or persons 
 by our or any or either of our order or for our or any or either of 
 our use, possessed, received or got in any rents or profits of the 
 said testator's real estate nor any money in respect thereof, and that 
 the said account marked B . does not contain any item of disburse- 
 
438 apphndix of foems. 
 
 ment, payment or allowance other thau such as has actually been 
 disbursed, paid or allowed as above stated. 
 
 Sworn &c. 
 
 11. Verifying Receiver's Accourd. 
 
 I of the Receiver appointed in this cause 
 
 make oath and say 
 
 1. I say that the account now produced and shown to me marked 
 with the letter A., purporting to be my account of (the rents and 
 profits of the real estate and of the outstanding personal estate of A.B. 
 
 the testator in this cause) from the day of 
 
 186 to the day of 186 
 
 both inclusive, contains a true account of all and every sum and 
 sums of money received by me or by any other person or persons by 
 my order, or to my knowleiJge and belief to my use, on account or 
 in respect of (the said rents and profits accrued due on or^ before the 
 last mentioned day or in respect of the personal estate) other than and 
 except what is included as receiveJi in my former accounts sworn to 
 by me. 
 
 2. The several sums mentioned in the said account hereby veri- 
 fied to have been paid and allowed, have been actually and truly so 
 paid and allowed in the manner and for the purposes specified in the 
 said account. 
 
 3. And I say that to the best of my knowledge and belief, the 
 said account is just and true in all and every the items and particu- 
 lars therein contained, 
 
 12. Of publication of advertisement. 
 
 1. The advertisement hereunto annexed marked A. , appeared in 
 the issues of the newspaper called the Globe published in the City of 
 
 Toronto of the days of the month of ——last and 
 
 of the days of the present month, being once in each week 
 
 of the /our weelcs preceding the day of . 
 
 (If the affidavit is made by the printer and publisher this 
 affidavit ought to be preceded by a clause stating that fact, if by 
 another person, by a clause stating that he has searched the files of 
 the paper.) 
 
APPENDIX OF FORMS. 439 
 
 13. Of Auctioneer — sale ^mder decree. 
 
 1. At the time and place mentioned and under the conditions of 
 sale specified in the annexed particulars and conditions of sale in 
 this cause, I offered for sale by public auction the lands and pre- 
 mises described in the said annexed particulars of sale. 
 
 2. At the said sale, J. A. bid for the said lands the sum of- 
 
 and being the highest bidder therefor, became and was declared to 
 be the purchaser thereof at the price or sum of . 
 
 3. The said sale was conducted by me in a fair open and candid 
 manner and according to the best of my skill and judgment. 
 
 4. The paper hereunto annexed marked exhibit B., is the contract 
 of sale signed by the said J. A. 
 
 14. For Guardian. 
 
 1. I knew the late J. U. of the City of Toronto, carpenter, in the 
 bill of complaint in this cause named, and am acquainted with his 
 family. 
 
 2. The said J. U. departed this life sometime in the month of 
 186 — , leaving him surviving the above named defendant 
 
 M. U., his widow, and the defendants J. U., L. TJ., and S. U., his 
 children and heirs-at-law. 
 
 3. The said J. U. , L. U. , and S. U. , are all infants within the age 
 of 21 years, and of the ages of six, four, and one years respectively, 
 and are at present residing with and under the care of their mother, 
 the said defendant M. U. at . 
 
 15. For Commission. 
 
 1. I am the plaintiff in this cause. 
 
 2. A. B. now residing at the City of Glasgow in that part of the 
 United Kingdom of Great Britain and Ireland called Scotland, is a 
 necessary and material witness for me in this cause, and it would be 
 unsafe for me to go down to hearing without his evidence. 
 
 3. Tliis application for a commission to take the evidence of the 
 said A, B. is made in good faith and not for the purpose of delay. 
 
440 APPENDIX OF FORMS. 
 
 IV. — Notices of Motion. 
 16. For Decree. 
 
 In Chancery, 
 
 Between A. B.... Plaintiff. 
 
 and 
 0. D Defendant. 
 
 Take notice that this Honorable Court will be moved on behalf of 
 
 the plaintiflF on , the day of , at ten o'clock, 
 
 in the forenoon,, or so soon thereafter as Counsel can be heard for a 
 decree or decretal order, in accordance with the prayer of the 
 plaintiff's bill, or that such other decree or order may be made as to 
 this Honourable Court shall seem meet. And take notice that in 
 support of such motion will be read the plaintiff's bUl, (the answer 
 of the said defendant, or such part thereof as the plaintiff shall be 
 advised to read) and the affidavits mentioned below, this day filed, 
 and the exhibits therein referred to. 
 
 Dated this day of . 
 
 To 
 
 , 1861. 
 Yours, &c., 
 
 E. F., 
 
 X. Y., 
 
 Deft's Sol. 
 
 Plff's Sol 
 
 The following affidavits will be read : 
 
 
 Affidavit of 
 
 
 Affidavit of 
 
 
 17. For Injunction. 
 (Style of cause.) 
 
 Take notice, <fec. , (as in No. 16) that an iujunction may be awarded 
 against the said defendant restraining him (state so much of the 
 prayer of the bill as prays an injunction.) 
 
 And take notice that upon and in support of such motion wiR be 
 read the plaintiff's bUl filed in this cause, and the affidavits of <fec. , 
 this day filed. 
 
 Dated, <fec. 
 
 18. To dissolve injunction. 
 (Style of cause.) 
 
 Take notice, ifec, (as in No. 16) for an order that the injunction 
 
 awarded in this cause to the above named plaintiff, on the 
 
 day of , may be dissolved, or that the terms of the said injunc- 
 
APPENDIX OF FOEMS. 441 
 
 tion may be varied, or that such other order may be made as. to this 
 Honourable Court may seem meet. 
 
 And take notice, &c., (as in No. 17.) 
 
 19. For Seeeiver. 
 (Style of cause.) 
 
 Take notice, <fec., (as in No. 16) that it may be referred to the 
 Master to appoint a fit and proper person to receive the rents and 
 profits of the estate in the pleadings mentioned, and to allow him a 
 salary for his care and pains, the person to be appointed first giving 
 security to be approved of by the Master, duly to account for and 
 to pay what he shall receive, and that the tenants may attorn and 
 pay their rents in arrear and their growing rents, to such receiver ; 
 and that he may be at liberty to manage, as well as set or let the 
 said estate with the approbation of the said Master, and that he may 
 pass his accounts, and pay in his balances from time to time as the 
 said Master shall direct. 
 
 And take notice, &c., (as in No. 17.) 
 Dated, &c. 
 
 20. Appeal from Master's Report. 
 {Style of cause.') 
 
 Take notice, &c., (as in No 16) by way of appeal from the report 
 
 of the Master made in this cause on the day of for 
 
 the following amongst other reasons : 
 
 1. For that the said Master, in and by his said report, <fec., (set 
 out clearly and concisely the grounds of appeal. ) 
 
 And taie notice that upon and in support of such motion will be 
 read the pleadings, decree, master's report, aflSdavits, depositions, 
 and other proceedings filed and taken in the office of the said 
 Master, upon the reference to him in this cause. 
 Dated, <fec.. 
 
 21. For order pro confesso. 
 (Style of cause.) 
 
 Take notice that a motion will be made on behalf of the.plaintifi', 
 in Chancery Chambers, at Osgoode Hall, in the City of Toronto, on 
 
 the day of , at ten o'clock in the forenoon, or 
 
 so soon thereafter as the motion can be made for an order that the 
 
442 APPENDIX OF FORMS. 
 
 plaintiff may be at liberty forthwith to set this cause down to be 
 heard, in order that the bill may be taken 'pro confesso against you. 
 
 And take notice that upon such motion will be read the affidavit of 
 service of an office-copy of the said bill upon you, and the certificate 
 of no answer being filed. 
 Dated (fee. 
 
 22. For guardian ad litem. 
 i 
 (Style of cause.) 
 
 Take notice, (as in No. 21) for an order that one of the solicitors 
 of this Honourable Court may be assigned as guardian to the above 
 named defendant C. D., by whom he may answer the plaintiff's 
 bill of complaint, and defend this suit. 
 
 And take notice that upon such motion will be read the plaintiff's 
 bin of complaint and affidavit of service thereof, and the affidavits of 
 A. B. and C. D., this day filed. 
 Dated, &o. 
 
 23. To dismiss for want of prosecution. 
 (Style of cause.) 
 
 Take notice, (as in No. 21) on behalf of the defendant E. F., for 
 an order that the plaintiff's bill may be dismissed out of this Court, 
 as against the above defendant E. P., for want of prosecution, with 
 costs to be taxed by the Master of this Court. 
 
 And take notice that upon such motion will be read the notice of 
 filing the answer of the said defendant, an admission of the service 
 thereof, and the Registrar's certificate of the state of the cause. 
 Dated, (fee. 
 
 24. For leave to amend. 
 (Style of cause.) 
 
 Take notice, (fee, (as in No. 21) for an order that the plaintiff may 
 be at liberty to amend his bUl of complaint in this cause by (set out 
 proposed amendments or refer to them as annexed.) 
 
 And take notice that upon and in support of such motion will be 
 read the bill of complaint in this cause, the proposed amendment 
 and the affidavit of A. B. , this day filed. 
 Dated, (fee. 
 
APPENDIX OF FORMS. 443 
 
 25. For a commission to examine witnesses: 
 (Style of cause. 
 
 Take notice (as in No. 21) on behalf of the plaintiff, for an order 
 that a commission may issue in this cause for the examination of A. 
 
 B. and C. D ., at in , as witnesses in this cause on 
 
 behalf of the above named plaintiff. 
 
 And take notice that in sxipport of such motion will be read the 
 affidavits of E. F., and G. H., this day>£led. 
 Dated, <fec. 
 
 26. For vesting order. 
 (Style of cause. ) 
 
 Take notice, (as in No. 21) on behalf of , for an order 
 
 vesting in the said the lands and premises purchased by 
 
 him at the sale in this cause, on the day of , being 
 
 the lands described as Lot , in the particulars of sale in this 
 
 cause. 
 
 And take notice that on such motion will be read the report of 
 the Master, confirming the said sale filed on the day of 
 
 Dated, (fee. 
 
 27. For delivery of Possession. 
 (Style of cause. ) 
 
 Take notice, <fec., (as in No. 21), for an order that the defendant 
 C. D. may deliver up possession of the lands and premises in ques- 
 tion in tliis cause, being (fee. , within fourteen days after service, or 
 within such other time as may be directed, and may be ordered to pay 
 the costs of this motion. 
 
 And take notice that upon and in support of such motion will be 
 raad the final order of foreclosure in this cause, and the affidavit of 
 &c., this day filed. 
 Dated, <fec. 
 
 28. To compel payment of purchase money into Court by purchaser 
 
 under decree, and resale on defa,ult. 
 
 (Style of cause. ) 
 
 Take notice (as in No. 21), for an order that A. B. do, within a 
 time to be limited by the presiding Judge, pay into this Court' to 
 
444 APPENDIX OF FORMS. 
 
 the credit of this cause, the sum of $■ , being the balance of 
 
 purchase money due from him for lands purchased by him at the sale 
 
 of lands in this cause on the • — — day of , and also in • 
 
 terest on the said sum from the time when the said purchase money 
 was payable by the conditions of sale in this cause, and that in de" 
 fault of the said A . B. paying such balance of purchase money and 
 interest, by the time appointed by the said Judge, that the lands 
 purchased by the said A. B. may be re-sold, and the said A. B., or- 
 dered to pay the costs of such re -sale, the deficiency if any thereon 
 and also the costs of this motion. 
 
 And take notice that upon such motion will be read the report of 
 the Master of this Court at London confirming the said sale, dated 
 
 the day of , and filed the day of , and 
 
 the certificate of non-payment by the said A. B. 
 
 Dated <fec. 
 
 V. — Notices. 
 29. Of filing answer or demurrer. 
 (Short style of cause. ) 
 
 Take notice that the answer (or demurrer) of the defendant C. D. 
 has this day been filed. 
 
 Dated, <fec. 
 
 To E. P. Plaintiflf's Solicitor. S. T. Defendants' Solicitor. 
 
 30. Of filing re2}lication. 
 (Short style of cause) 
 
 Take notice that the plaintiif has this day filed the replication in 
 this cause. 
 Dated, (fee. 
 
 31. Of production. 
 (Short style of cause.) 
 
 Take notice that the plaintiff (or defendant) has this day filed his 
 affidavit on production of books and papers, and has deposited the 
 documents therein mentioned in the office of the Clerk of Records 
 and Writs (or Deputy Registrar.) 
 
 Dated <fec. 
 
APPENDIX OF FORMS. 445 
 
 32. To in sped papers produced. 
 
 (Short style of cause.) 
 
 Take notice that I will attend at the office of the Clerk of Records 
 
 and Writs on next, at o'clock, to examine the books 
 
 and papers produced by the defendant (or plaiiitiff.) Dated (fee. 
 
 33. Of examination and hearing. 
 
 (Style of cause.) 
 
 To the above named defendant C. D. 
 Take notiee that this cause has been set down for the examination 
 
 of witnesses at on the day of 
 
 , at which time and place the witnesses for aU parties 
 
 must be examined, and the cause heard, and unless you attend at 
 the time and place appointed a decree may be pronounced in your 
 absence. Dated, &c. 
 
 34. Of hearing on further Directions. 
 
 (Style of cause.) 
 
 To the above named defendants. 
 
 Take notice that this cause has been set down to be heard on 
 
 further directions (and as to the matter of costs) on the 
 
 day of , and unless you attend at the 
 
 time and place appointed, a decree may be pronounced in your 
 absence. 
 
 Dated (fee. 
 
 VI. MlSCELLAJSrEOUS. 
 
 35. Bond for security for Costs. 
 
 In Chanceky, 
 
 (Style of Cause.) 
 
 Know all men by these presents that I, J. Y., of , farmer, 
 
 am held and firmly bound to A. G. , Esquire, Registrar of the Court 
 
 of Chancery for Upper Canada, in the penal sum of $ of good 
 
 and lawful money of Canada, to be paid to the said A. Gr. , his cer- 
 tain attorney, executors, administrators or assigns, for which pay- 
 ment to be well and faithfully made I bind myself, my heirs, execu 
 tors and administrators firmly by these presents, sealed with my seal 
 
446 APPENDIX OF FORMS. 
 
 and dated this day of in thp ^year of the 
 
 reign of Our Sovereign Lady Queen Victoria, and in the year of our 
 Lord 186— . 
 
 Whereas, A. B. and C. D. have lately exhibited their bill of com- 
 plaint in the said Court of Chancery against E. F. and G. H., de- 
 fendants, touching the matters therein contained. 
 
 Now the condition of the above written obligation is such, that if 
 the above bounden J. Y., his executors or administrators, do and 
 shall well and truly pay or cause to he paid to the said (if the bond be 
 given to all the defendants, "to the defendants in the said cause"), 
 all such costs as the said Court shall think fit to award to the said 
 defendant (or, " to any or either of them") in the said cause, then 
 the above written obligation to be void, &c. 
 
 36. Bond by Receiver. 
 
 Know all men by these presents that we, A. B., of , C. D. 
 
 of , and E. F. of , are jointly and severally held 
 
 and firmly bound unto A. N. B., Esquire, Master of the Court of 
 
 Chancery, in the penal sum of , lawful money of Canada, 
 
 for which payment well and truly to be made, we bind ourselves, 
 and each of us by himself, our, and each of our heirs, executors and 
 administrators respectively, firmly by these presents. 
 
 Witness our hands and seals respectively, the day of 
 
 in the year of our Lord . 
 
 Whereas, by an order of the Court of Chancery for Upper Canada, 
 made in a cause wherein are plaintiffs, and defend- 
 ants, and bearing date the day of . It was ordered 
 
 that it should be referred to the Master of this Coiirt to appoint a 
 proper person to receive, (or, upon the above bounden A. B., first 
 giving security to the satisfaction of the said Master, he should be 
 appointed receiver of) the rents and profits of the real estate, and to 
 
 collect and get in the outstanding personal estate of , in the 
 
 gaid order named. And whereas, the said Master hath appointed 
 and approved of the above bounden C. D. and E. F., as 
 sureties for the said A. B., and hath also approved of the above 
 written obligation with the underwritten condition as a proper 
 security to be entered into by the said A. B. and C. D. and E. F. . 
 pursuant to the said order and the general orders of the said Court 
 jn that behalf, and in testimony of such approbation, hath signed an 
 allowance in the margin hereof. 
 
APPENDIX OF FORMS. 447 
 
 Now the condition of the ahove written obligation is such, that if 
 the said 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 estate, and in respect of the personal estate 
 of the said X. Y., and do and shall duly pay the balances which 
 shall from time to time be certified to be due from him at such pe- 
 riods as may be directed, theti the above obligation shall be void and 
 of none efiect, otherwise the same is to be and remain in full force 
 and virtue. 
 
448 
 
 APPENDIX OF FORMS. 
 
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450 /APPENDIX OF FORMS, 
 
 38. Condition of hand hy the guardian or the persons and property 
 or male atid remale infants. 
 
 Obligation and recital as in receiver's hond ante, mutatis mutandis. 
 
 Now the condition of this obligation is snoh, that if the above 
 bounden A. B. do and shall according to the practice of the said 
 Court, as often as he shall be.required, make a just and true ac- 
 count o* the personal estate and the rents and profits of the real es- 
 tate of the said G. F. and M. F., or of either of them as now are, 
 or shall hereafter come to the hands, custody or possession of the 
 said A. B. , and which he may receive out of or concerning the said 
 estate, and shall carefully observe, perform and keep the orders and 
 directions of the said Court, touching or concerning the said G. F 
 and M. F. , or either of them, or their, his or her estate, and touch' 
 ing all such moneys as shall remain due upon the foot of his account 
 duly taken by the said Master, and shall be careful to see the houseg 
 buildings and structures of the said G. F. and M. F., and of each 
 of them to be well and sufficiently repaired, and so kept and main- 
 tained, during the continuance of the said wardship, and shall care- 
 fully preserve and keep all the deeds, evidences and writings touch 
 ing the lands and estate of them the said Gr. F. and M. F., or either 
 of them as now are, or hereafter shall come to his hands, custody or 
 possessson, and shall provide for the persona of the said Gr. F. and 
 M. F., and for their safety, and shall not sell or alienate his interest 
 in the said custody or wardship, to any person or persons whomso- 
 ever without the order of this Court having been first obtained in 
 that behalf, and do and shall not permit or suffer the said G. F. o' 
 M. F., or either of them, during the said wardship, to marry with" 
 out the consent of the Court, but shall in all things demean himself 
 as a careful and faithful guardian of the person and estates respec- 
 tively of them the said G, F. and M, F., then the above obligation 
 shall be void, &c. 
 
Il^DEX. 
 
 A. 
 
 ABANDONMENT 
 
 Of conditional order, 214 
 Of motion, costs op 259, 
 
 ABATEMENT, Does not dissolve injunetion 276 ; proceedings and 
 orders in cases of 297 ; practice and decisions thereon, 298 
 to 301 ; none, in Court of Error and Appeal, 410. 
 
 ABSCONDING DEFENDANT, 
 
 ABSENT DEFENDANT, rights of reserved, 155, 189 ; services of 
 38, 172, 173 ; Enactment respecting, 76. 
 
 ABROGATION, of former order 118 ; effect of, 118, 119. 
 
 ABSTRACTS, solicitors liabilities on furnishing of title, 106 ; deli- 
 very of and objections to after sale, 315; proceedings upon 
 and, verification of, 315, 316 ; (see Quieting Titles Act) ; to be 
 brought into Chambers, 217 ; Master's office, 246. 
 
 ACCEPTANCE, of service', need not be verified by affidavit, 315 ; of 
 bills, 166 ; equivalent to personal service, 175. 
 
 ACCESS of parents to infants, 61 — 63. 
 
 ACCOUNTANT, appointment of, 4 ; order of Court as to, 124 ; to be 
 paid by fees, 124; assistance of, and other scientific persons, 
 360. 
 
 ACCOUNTS, of the Court of Chancery, 305 ; what books of account 
 to be kept, and the duties of the officers having charge of 
 same, 306 to 310 ; to Government, to be rendered by Master 
 and Registrar, 5 ; of trustees of religious institutions, 60 ; 
 summary proceeding to ascertain, 60 ; form of, broxight into 
 Chambers, 216 ; into Master's office, 245 ; directions to be 
 given by Master as to 221 ; vphen taken vifith rests &c., 223, 
 — 241 ; books of to be prima facie evidence, 216, 246 ; proper 
 admissions as to, to be made 247 ; costs of failure to do so 
 by whom to be paid, 248 ; notice of surcharge 248 ; party 
 to be examined as to, entitled to notice as to points on 
 which the examination required, 248 ; receivers accounts, 
 273 ; in mortgage suits where state of changed 335, 336 ; 
 and see mortgage suits 325 ; and see in administration suits , 
 341—343. 
 
452 moEx. 
 
 ACTION, at law, not to be brought on bill of costs pending taxation, 
 49 — 51 ; costs of, not given in mortgage suits, without special 
 reason, 338 ; limitation of, action executors 112, 113 ; defence 
 to when answer to motion for injunction, 273 ; time within 
 which, must be brought against personal representation, 112 
 —113. 
 
 ACTUAKY, Court may require assistance of, 3G0, 
 
 ADDEESS, for service to be endorsed on papers 131 — 133. [See So- 
 licitor,] of plaintiff requires to be stated 160 ; in petitions 
 258 ; of solicitors to be entered in Clerk of Records and 
 Writs book 127; in office of Deputy Registrars, 129. 
 
 ADMINISTRATION, jurisdiction of court in cases of contested, 38. 
 
 ADMINISTRATION, enaotmejit as to setting apart fund in, to pro- 
 vide for lease 109 — 110; distribution of estate in 110; stat- 
 ntary notices by executors before distribution, 111; course to 
 be pursued where deficiency of assets, 112; time within 
 which action must be brought when executor disputes claim, 
 112 ; application by executor to judge for advice in, 113 — 114 ; 
 decree may be granted to residuary legatee, next of kin or 
 legatee with legacy charged on realty 150, 338 ; or person 
 interested in proceeds of, 150, 138, 441 ; or devisee heir or 
 executor &c., 151 as to parties to administration suits gen- 
 erally, ]47 — 155; Order as to administration suits, 339; 
 ■what parties eatitled to obtain, 339 ; practice and decisions, 
 340 ; notice of motion to be served on executor, &c., 340 ; 14 
 ■days notice to be given, 363 ; order to have the effect of de- 
 cree, 340; costs of successful appeal against may be paid out 
 of estate, 340 ; special directions as to carriage of, 941 ; exe- 
 cutor &c., may obtain, 341 ; heirs or devisee to be served 
 with summons in proceedings against realty, 841 ; what 
 enquiries to be made and accounts taken by Master under, 
 S41, 342, S43 ; contents of advertisment for creditors, 342 ; 
 proceedings to be taken on creditors claims, 242, 343 ; what 
 affidavits regarding to be made by executor, &c , 343 ; pay- 
 ment cf money out of Court in, 345 ; service of notices un- 
 der, by post or on solicitor, sufficient, 345 ; rule as to costs 
 of, 239, and see. 339, 343, 345 ; service of office-copy decree in, 
 152 ; business connected with, to be conducted in Chambers, 
 205, 338. 
 
 ADMISSION, silence in answer as to statement in bill no admission 
 of truth thereof, 186 ; what answer to contain, 186 ; to refer 
 to paragraphs of bill, 186 ; effect of as to production of doc- 
 uments, 192 ; in replications to refer to paragraphs in answer, 
 199 ; see Notice to Admit, 200 ; costs of not making proper, 
 209 ; and in Master's office, 248. 
 
INDEX.. 45S 
 
 ADULTERT, of mother, bav to order for access to infants,. 62. 
 
 ADVERTISEMENTS, of sales of land by religious institutions, 59 ; 
 of sales by the Court, 311 ; in administration suits, 342, 
 344; under Quieting Titles orders,.349i 350; of defendants 
 to bills of complaint, 1 72. 
 
 ADVICE, application by executors or administrators to court for, 
 113. 
 
 AFFIDAVITS, made out of the province,. enactment respecting, 63 ; 
 includes affirmation, 120 ; when filed with Registrar or in 
 Chambers to be transmitted to clerk of R. & W., 128 ; rules as 
 to erasures jin, 156, 189 ; to be divided into paragraphs and 
 numbered, 156 ; order as to, of service of bills, 174 ; form of, 
 877; of service of injunction, 277; may be used at hearing 
 by leave of the court, 207 ; order as to 255 ; to be expressed 
 iu first person, name in full, description and address to be 
 given, 255 ; no costs of irregular, 255 ; decisions and prac- 
 tice as to, 255 — •-'56 ; not to be made till bill filed, 256; 
 expressed in third person allowed to be used when 
 made abroad, 256; scandalous taken oif the file, 256; must 
 shew means of kno-vledge, 256 ; to be filed with clerk of R. 
 and W., 257 ; before service of notice of motion, 257 ; when 
 irregularly filed maybe read, 257 ; notice of intention to read 
 upon motion must be given, 259 ; party making may be cross 
 examined on, 262 ; 48 hours notice to be given to other side, 
 263 ; on production, ! 90 ; form of, 380 ; jurat to, 255 ; form 
 of, 384 ; demand of copies of, 361 ; what irregularities waived 
 by so doing, 261, 362; consequences of non-delivery, 362, 
 
 AFFIRMATIONS, act respecting, made out of Province, 63 ; see 
 affidavits. 
 
 AGENT, liable to action for concealment and falsification of title,. 
 
 106; service on solicitors, 132; see Solioitob, Sekviobs. 
 AGREEMENT, on sale to be signed by purchaser, 314. 
 
 ALIMONT, jurisdiction of Court in, 12; writ of arrest,. 12,. 41;;. 
 amount and terms of bail iu, 12, 41 ; desertion as a ground 
 for, 12; or violence, 12: interim, how obtained, 13, 345; 
 costs in, 13, 346 ; registration of decree in, 7S ; order as to,. 
 endorsements on office copy bill,, 346; no application, for 
 interim or costs till time for answering expired, 346'; defend^ 
 ant may submit to demand, 346 ; what costs allowed there^- 
 upon, 346. 
 
 ALLOWANCE, of service of bill of complaint after time limited, 
 169 ; when order allowing requires to be served, ] 70 ; receiv- 
 ers allowances, 273 j to executors, &c., see Master's office.. 
 
454 INDEX. 
 
 AMENDMENT, of bill where plaintiff's intercBt conflict, 146; after 
 demurrer allowed, 183 — 184; where suit defective, 302; of 
 decree or order in Chambers, 297 ; in Court if new adjudica- 
 tion required, 297. 
 
 AMEND, orders to obtained on precipe before answer. 161 ; when 
 service of dispensed with, 162 ; to correct clerical error ob- 
 tained at any time, 162; effect of, 172; by adding parties 
 after replication, 162; one, allowed after answer filed, 162; 
 what amendments allowed on 162, 163, 164 ; effect of an 
 injunction, 164 ; when, without prejudice to order pro con, 
 164 ; to be acted on within 14 days otherwise void, 164 — 165 ; 
 vacation not reckoned in time for, 250 ; at hearing in cases 
 of hand, 165 ; service of, after answer, 167 ; filing replica- 
 tion after, 200. 
 
 AMOTION, of Judge 2 
 
 ANNUITY, to retired Judge, 3 ; word legacy included in, 120. 
 
 ANSWER, name of solicitor filing to be endorsed on, 131, 133; no- 
 tice of filing to be served, 133 ; consequences of failure to 
 do so, 134 ; one order to amend after filing, 162 ; what amend- 
 ments plaintiff fallowed to make, 152, 163, 164; meaning 
 of "last of several answers," 154; application for leave to 
 answer, 167; time within which answers to be filed; 167, 
 168, 320 ; taking bill ^ro con for want of 174; et. seq. ; effect 
 of filing, pending motion pro con, 177; time to, must b e 
 asked when demurrer overruled, 184; in Chambers 215; order 
 respecting, 185; what to contain, 185, 186; silence of, no 
 admission of truth of statements in bill, 186 ; what admis- 
 sions defendants are to make by, 186 ; admissions to refer to 
 paragraphs of bill, 186; what relief defendants may claim 
 by, 187; injunction against plaintiff granted to defendant 
 where prayer for in answer, 275 ; supplemental, when allowed 
 to be filed, 187 ; leave given on motion, 288 ; at hearing, 189 
 alterations and interlineations in, how authenticated, 189 
 commission to take, out of jurisdiction unnecessary, 189 
 may be filed by consent without oath or signature, 190; how 
 long after filing, replication to be filed, 199, 200 ; vacation 
 not included in time to, 320 ; form of given in schedules 
 with jurat, 379; office copies not to be served, 319; copies 
 when demanded to be furnished, 861 ; within 48 hours, 362 ; 
 defendant may submit before, in alimony suits and pay costs 
 in gross, 346. 
 
 APPEAL, to Privy Council by Judge, allowed, 2 ; to Court of Chan- 
 cery from County Court, SO ; Commissioner of Crown Lands, 
 31 ; Surrogate Courts, 138 ; in lunacy, 75 ; from Judge's Sec- 
 
INEEX. 455 
 
 APPEAL, {Continued,) 
 
 retary, 124 ; new case not to be made on, 124; to be made 
 within 14 days, 295 ; not tilL order signed and entered, 295 ; 
 from Master's ruling, 198 ; to be to Court, 216 ; from Master's 
 Beport, 260 ; points to be raised before Master on settling 
 report, 251 ; costs of, 290 ; to be to Court, 253; when heard, 
 S22 ; to be set down and notice served at least seven days 
 before hearing of, 822 ; not be argued in June unless certified 
 as short by counsel, 323 ; see Error and Appeal, Court of 
 act and orders, 402^-414. 
 
 APPOINTMENT, Masters, sufficient without warrant being issued, 
 247, 249 ; consequences of default the same as on warrant, 
 249, 255 ; of receivers, 270 ; execution of power of, what 
 sufBlcient, 102. 
 
 APPOETIONMENT, of rent under Property and Trusts Act, 100— 
 101. 
 
 ARGUMENT, of cause, to take place at same time as examination of 
 witnesses, 206 ; no, except of short causes in June, 332. 
 
 AEEEST, writ of, in alimony suits, 12 ; what requisite to obtain order 
 for, 41 ; conditions of bail in alimony. suits, 41 ; discharge of, 
 42 ; for non-payment of costs, Ac, abolished, 42 ; proceeding 
 by writ of attachment instead, 42. 
 
 ASSIGNEE, can bring action for amount of bill of costs, 48 ; of 
 chose in action can institute suit, 151. 
 
 ASSIGNMENT, effect of Property and Trusts Act on, 98 ; of policy 
 of insurance, 101 ; power of, of chattels, 106 ; of lease la^ 
 executor, 109 ; when his liability on to cease, 111. 
 
 ASSISTANCE, writ of, when to issue, 273, 281, 316, 317. 
 
 ATTACHMENT, writ of, when to be used, 42. 
 
 ATTORNEY, act respecting, 48 ; power of what requisite to, by mar- 
 ried women, 108 ; general, how far acts under to be valid, 
 108, 109. 
 General, sanction of, required to action for concealment or 
 falsification of title, 107 ; must sign and sanction informa- 
 tion, 138, 160 ; rule as to costs of, 284 ; practice as to noting 
 pro con, against, 175. 
 
 AUCTION public, sale of lands of religious institutions by, 69 ; un- 
 der direction of Court, 310 ei aeq. 
 
 AUTHENTICATION of judgments &c., of Court, by seal, 1. 
 
 AWABDS, jurisdiction of Court in cases of, 11. 
 
 B. 
 BAIL, in alimony suits, 41 ; how discharged, 41. 
 BAEEISTEB, of ten years standing, Judge to be, 1. 
 
456 INDEX. 
 
 BIDDING, need not te in writing, 313; reserved, may be fixed, 322 j 
 motion to open to be in Chambers, 215, 314 ; when, will be 
 opened, 314. 
 
 BILLS OP COSTS, act respecting, 48 ; action upon, 48 ; cases decided 
 and practice as to necessary contents of, and delivery of bill, 
 48,49; who are parties chargeable with, 50; security for 
 costs of taxation may be granted, 50 ; when special applica- 
 tion for, necessary, 50 ; reference of bill after verdict, or 
 year after delivery, 5 1 ; what constitutes special circumstan- 
 ces, 52; taxation of costs of reference, 52, et seq, Special cir- 
 cumstances as to costs of 54 ; order for delivery of deeds &c., 
 upon, 64 ; what covered by lien for, 54 ; Judge may permit 
 taxation without waiting a month, 55 ; taxation, by third 
 party, 55 ; what special circumstances to warrant,- 56 — 57 ; 
 delivery of bill to, 56 ; re-taxation by, 56 ; giving security 
 when equivalent to payment, 51 ; fraud in relation to taxa- 
 tion, 57 — 58 ; taxing officer may have assistance of ofScers of 
 other courts, 63 ; his certificate final, 58 ; style of matter, 58 • 
 see COSTS. 
 
 BILL OF COMPLAINT, word "bill'' includes information, 120; 
 with whom to be filed, 5 ; in alimony suits, 12, 345 ; Deputy 
 Registrars 'to have the powers of Master [and CI erk of E. & 
 W. when, filed in their offices, 130 ; name of solicitor filing 
 to be endorsed on, 131 — 161 ; order as to parties to, 13, et seq ; 
 practice where crown, 138; foreign -governments, 140; cor- 
 porations, 140; married women, 142; infants, 143; rules as 
 to parties to, 151 — 155; and see administration, parties, coe- 
 poration; may be printed or written, 156 ; when printed, dates 
 and sums to be in figures, 156 ; may be taken off the files or 
 service of set aside for non compliance, 156 ; cost of, disal- 
 lowed when improperly filed, scandalous or impertinent, 
 157 ; general order as to, 158 ; what, to contain, 159. Prac- 
 tice where irregularly filed, 160; may be in forms given in 
 schedule, 1 60, .'565, to 375; not to contain interrogatories, 
 need not be signed by counsel, may be filed with either 
 Clerk of E. & "W., or a Deputy Registrar, 160; effect 
 of filing, 161; as to statute of limitations, 32, 161; 
 orders to amend, when obtained on precipe, 161 ; when 
 service of dispensed with, 162 ; to amend clerical error ob- 
 tained at any time, 162 ; in other cases, 162 to 165 ; vacation 
 not included in time for, 320 ; not to be filed for discovery 
 solely, 165 ; endorsement of, 165 ; in alimony. 345 ; see forms 
 in schedule, 365, 376, 388 ; service of, order as to, 165 ; out 
 of jurisdiction, 167. 168 ; on corporations, 168 ; of amended 
 
INDEX. 457 
 
 BILL OF COMPLAINT, (Continued.) 
 
 ■bill, 169 ; -within -what time to be effected, 169 ; when, al- 
 lowed afterwards, 169, 1'70 ; substitutional service of, 170, 
 171, 111; by publication, M2, 113, 111; by publication 
 and service, 173— iTT ; under other circumstances, 174—177 
 377 ; form of affidavits of, 174, 376 ; taking, pro con when 
 served within jurisdiction, 174 ; when out of, 176 ; when ser- 
 vice not personal, 176 ; when notice published, 177 ; under 
 other circumstances, 177 — 1 78; against corporations, 178 i 
 service on infants and persons of unsound mind, 353 ; no- 
 tices of motion may be served with or after filing of bill, 
 257 ; no injunction for default of answer to, 274 ; admis- 
 sions in answer, to refer to paragraphs of bill, 186; motion 
 to dismiss, 264 ; does not succeed when no notice of filing 
 answer served, 134; after amendment, 267; where plaintiff 
 delaying suit, 288 ; not dismissed for misjoinder of plaintiffs, 
 145 ; dismissed for non production or non attendance to be 
 examined, 197; dismissal of, discharges lis pendens, 161 ; 
 damages may be awarded upon, 73 ; amendment of, when suit 
 defective, 302; where supplemental statement, maybe filed, 
 304; printing, when more than four copies required, 318 ; de- 
 fendant entitled to copies on payment, 319. 
 
 BILL AND ANSWER, when cause to be set down on, 200, 322, 
 323, and notice of hearing to be served, 322 ; when heard, 
 321, 323. 
 
 BILLS OF EEVIEW, petition to be presented instead of, 295. 
 
 BONDS, in Court of Error and Appeal, 404, 412,414; on appeal 
 from Court of Chancery, 421 — 422 ; form of, 415 ; allowance 
 of, 404, 417, 421 ; sureties to, 416 ; affidavit of justification 
 to be made by, 416 ; when execution std,yed upon, 404, 420 
 for security for costs, 290 ei seg ; from receivers, 270. 
 
 BOOKS OF ACCOUNT, taken as prima facie evidence in Chambers, 
 216 ; in Master's office, 246. 
 
 BREACH, of contract damages may he, awarded for, 72 ; of condition, 
 effect of Property and Trusts Act as to license in lease, 88 — 
 99 ; waver of, 99 ; condition to insure, 100 ; endorsement of 
 relief against breach of, 100. 
 
 BRIEFS, to be left with Registrar within 7 days after hearing, 122 ; 
 
 BUSINESS, order of, 9, 321. 
 
 C. 
 
 CARRIAGE, of orders in Master's office, to whom granted, and how 
 changed, 219. 
 
458 INDEX. 
 
 CASE, special, enactment regarding, 69. 
 
 CAUSE, decree absolute on default of plaintiff at hearing, 210 ; of 
 defendant, 209 ; heard On Mondays, 321; see Dbckee, Heabing. 
 
 CEETIFICATE, registration of, in alimony suits and effect of, 73 ; 
 under Quieting Titles Act, 79 ; Clerk of Records and Writs 
 to issue, 348 ; any one entitled to obtain, from Master of pro- 
 ceedings in his office, 248 ; of taxing officer in suits for ad- 
 ministrator or partition as to costs, 289 ; by Deputy Registrar, 
 6 ; of decision of Court of Error and Appeal, 421. 
 
 CHAMBERS, if order not bespoken within 1 days, to be spoken to in 
 Chambers before issuing, 122 ; order as to, 214 ; what busi- 
 ness disposed of in, 214, 351, 358, 360 ; course of proceedings 
 in, 216 ; service of notices for, allowed to be by advertise- 
 ment if necessary, 216 ; rules of evidence in, 216, 211 ; form 
 of accounts for, 216; state of facts not to be brought into, 
 217 ; copies of deeds, abstracts, &c., to be furnished for, 217 ; 
 parties may be added in, 217 ; office-copies of decrees to be 
 served, 217, 218; matters adjourned from Chambers to 
 Court, et vice versa, 218 ; power of Judge in Chambers, 218, 
 320 ; Receivers when appointed in, 270 ; decree or order 
 when amended in, 297 ; time for proceeding in, may be al- 
 tered, 320 ; decree in mortgage suits against infants made in, 
 326 ; administration decretal order, granted in, 338 ; guar- 
 dians to infants and lunatics appointed in, 355, 366 ; orders 
 regarding infant's estate in, 357, 358 ; re-hearing of orders 
 made in, 294; motions to discharge or vary orders made in, 
 295. 
 
 CHANCELLOK, must be a barrister of ten year's standing, 1 ; his 
 precedence, 1 ; pension, 3. 
 
 CHANCERY, Court of, act respecting, 1 ; to sit at Toronto, 3 ; make 
 circuits, 9, 10 ; rules of decision in, 10 ; jurisdiction of, 10 to 
 37 ; judges of, to have power to make general orders, 37 ; 
 sanction of, how given to sale of land of religious institutions, 
 59 ; may enforce production of accounts of such bodies, 60 ; 
 to sanction sales, 4:c.. of settled estates, 73 ; relieve against 
 certain forfeitures, 100. 
 
 CHANGE, of interest, where suits defective, what proceedings neces- 
 sary, 297 ; office copies [of order to be served, 301 ; and 
 parties to move against within 14 days, 301 ; endorsement 
 on order, 302 ; how order discharged, 322 ; of account in 
 mortgage suits, 333, 336. 
 
 CHARGE, of debts on realty, sale of by executors, &c., for, 103, 104 ; 
 of funds in court, see Stop Orders, 278. 
 
INDEX. 
 
 459 
 
 CHATTELS, power of assignment of, 106 ; vendor of, liable to action 
 for concealment of title, 106, lOT. 
 
 CHRISTMAS, vacation, 322. 
 
 CIRCUITS, for examination and hearing, 9, 10. 
 
 CLIENTS, commnnicatiou of, with solicitor, when privileged, • 190 to 
 195. 
 
 CLERICAL, error, order to amend, obtained on precipe, 162 ; renders 
 order pro con. inoperative, 176, amendment made in Cham- 
 bers, 303. 
 
 CLERK, Registrar's appointment of, 4 ; salary, 6 ; additional, 
 how appointed, 1 ; Surrogate, an officer of the Court, 39. 
 
 CLERK OF RECORDS AND WRITS, order as to, 125; duties of de- 
 fined 125,126, 127 ; to keep Solicitor's and Agent's book, 127 ; 
 draw up orders of course 127 ; transmit list of causes set down 
 for hearing to Registrar, 127, 203 ; to pay in moneys received 
 from Suitors, Fee fund quarterly, 127 ; to pay in amounts 
 received from Deputy Registrars, 128 ; affidavits filed in 
 Chambers, and with Registrar to be transmitted to, 128 5 
 papers for service to be posted up in office of, in certain 
 cases, 132 to 134 ; not to file improperly printed or written 
 proceedings, 156 ; papers filed with, to have place of filing 
 original bill marked near the top, 159; bill maybe filed 
 with, 160; what proceedings to be taken to note bill pro 
 confesso in office of, 174 etseq. ; cause lists to be prepared by , 
 203 ; and causes set down with, 322 ; documents to be used 
 at hearing to be transmitted by, 204 ; to issue commission 
 for examination of witnesses out of jurisdiction on Master's 
 certificate, 243 ; affidavits to be used on motions to be filed 
 with, 257 ; notice of motion for non production in office of, 
 to be served on solicitor, 282 ; causes to be set down in of- 
 fice of, at least 7 days before hearing, 322 ; office of, to be 
 open during vacation for certain purposes, 323 ; to give cer- 
 tificate for registration under Quieting Titles Act, 348 ; to 
 attend Judge with petitions under second section, 347. 
 
 COMMISSIONERS, to administer oaths, appointment and powers of, 
 
 out of Province, 63. 
 COMMISSION, of sequestration, 8 ; 2S1. 
 COMMTSSIONEE, of Crown Lands, appeals from, 31. 
 COMMITTAL, of judgment debtor, 47. 
 COMMITTEE, in lunacy, 18 ; how appointed, 358 | proceedings to 
 
 be taken by, 18 ; may concur in special case, 70. 
 COMMUNICATIONS, see PBOnnOTiON, 190. 
 
460 INDEX. 
 
 COMMON LAW, Procedure act, certain provisions of, applied to 
 
 Court, 146. 
 CONCEALMENT, of title, action against vendor, solicitor, &c. for, 
 
 106. 
 
 CONDITION, of re-entry, effect of. Property and Trusts Act on, 98, 
 99, and as to non-insurance, 100 ; of sale, 312 ; see Sales. 
 
 CONDITIONAL, order, abandonment of, 214. 
 
 CONGEEGATION, notification of, before deed of land of leligious 
 institutions executed, 59. 
 
 CONSUL, afadavits, &c., sworn before, 64, 65. 
 
 CONTEMPT, process of for costs abolished, 42; for non-attendance 
 under Custody of Infants Act, 61 ; see process; 279 ; for non- 
 delivevy of possession, 281, 315, 338. 
 
 CONTESTING, claims, see Quieting Titles Act, 79 et seq. 
 
 CONTEACT, damages may be awarded for breach ol, 72; to be signed 
 by purchasevsat sales, 313. 
 
 CONVEYANCE, master to settle, 245, 334 ; under Quieting Titles, 
 orders, 351. 
 
 COPIES, order as to 318 ; office copies of certain proceedings dispen- 
 sed with, 318 ; irregulariiy waived by taking, 318, 361 ; only 
 four of proceeding-sallowed on taxation, 319; if more re- 
 quired to be printed, 319 ; defendant entitled to, of printed 
 bill on payment, 319 ; dcmandof, generally, 361 ; to be fur- 
 nished within 48 hours, 362. 
 
 COEPORATION, practice where suits instituted by, 140, et ceq.; who 
 are necessary parties to suits by or against, 155 ; wheie bill 
 filed without sanction of, 160 ; service on, 166, 167, 169 ; 
 taking bill ^ro con. against, l'?8. 
 
 COSTS, in alimony suits, 13, 345 ; of accounts of religious institutions, 
 60 ; on amendment, 163 ; where answer filed, pending motion 
 pro con., lV7 ; of not making admissions, 209, 247 ; of appeals 
 from Master's Beport, 251, 290 ; none of irregular affidavits, 
 255 ; no attachment for non-payment of, 279 ; of suc- 
 cessful appeal from administration order, 340 ; of credi- 
 tors in administration suits, 343, 345 ; of Attorney-General, 
 284 ; of bill filed without sanction of client, 160, on demurers, 
 184, offailure to give notice of filing pleadings, 134; when_^./a. 
 unreasonably issued, 44 ; none of fraud, not proved, 284 ; in 
 garnishee cases, 44 ; of solicitors not attending hearing, 209 ; 
 of issue, 34 ; not given on refusal of injunctions, 275 ; in 
 
INDEX. 461 
 
 COSTS, (Continued.) . 
 
 lunacy, 21, 15 ; oruEettling minutes, 123, 125 ; of claims in 
 Master's office, 245 ; of motions, 258, 259, 284, of abandoned 
 motion, and motion refused, 25* ; second motion cannot be 
 made till costs paid, 259 | of mileage untaxable unless done 
 by Sheriff, 282 : of mortgagees proceedings, both at law and 
 in equity, 338 ; of proceedings improperly filed, 157 ; scandal- 
 ous or impertinent, 157 ; proceedings unnecessarily long, 158 ; 
 of irregular affidavits, 255 ; of relators, 139 ; receivers, 2'73, 
 274 ; no revivor for as a rule, 300 ; of rehearing, 294 ; of 
 stop orders, 278 ; Surrogate matters, 40 ; see SoLioiTOa's Act, 
 generally 48 to 58, as to delivery and taxation of solicitor's 
 costs, and Bill of Costs, ante ; of special cases, 70. Orders 
 as to 284 ; may be awarded in gross, 284 ; what, to be 
 allowed by local master, 285 ; what, to be taxed, 286 ; taxing 
 officer to tax all bills above $30 ; and revise bills sent by 
 local masters, 287 ; of guardians ad litem, 288 ; of defendants 
 unnecessarily separating in defences 288j to be taxed by officer 
 without special direction to him, 289 ,; rule as to allowing in 
 administration and partition suits, 289 ; where case ought to 
 have been in C. C, 289 ; of one defendant may be ordered to 
 be paid by another, 290 ; security for, bonds for 290 ; practice 
 and decisions as to giving, 290 to 293 ; proceedings stayed 
 from service of order for, 3'20. 
 
 COUNTY CO0KT, appeals from 30 ; injunctions, when granted by, 
 Judge of, 30 ; removal from, 30 ; jurisdiction of, 31 ; trial of 
 issue in, 33 ; no costs, when suit ought to have been brought 
 in, 289. 
 
 COVENANT, to insure, when Court will relieve for breach of, 100 i 
 benefit of, given to party beneficially entitled, 101 ; assignee 
 of leaseholds when relieved from, 101. 
 
 CREDIT, notice of, in mortgage suits, 335. 
 
 CKEDITOR'S, suits, carriage of decree in, 219, 220 ; claims how dis- 
 posed of, 244 ; rehearing of admisistration order by, 294 ; see 
 Abminist RATION suits, 3:i8. 
 
 CROSS EXAMINATION, see examination SOo, 260 ; injunction, 277 ; 
 
 CEOWN, proceedings where, a party to suit, 138 et seq. rule as to 
 costs of, 284. 
 
 CRUELTY, as a ground for alimony, 13. 
 
 CUSTODY, of Infants, Act respecting, 61 . 
 
 D. 
 
 DAMAGES, in cases of breach of contract, how ascertained 72 ; form 
 of undertaking as to, in injuction matters, 75, 276 ; for con- 
 cealment or falsification of title, 106.| 
 
463 INDEX. 
 
 DATE, when printed to te in figures, 156 ; order to amend clerical 
 etror in, obtained at any time, 162 ; day of, not inclusive, 
 819. 
 
 DAY, to show cause, see Infant, 358 ; of date not inclusive, 819. 
 
 DEATH, see Eevivor. 
 
 DEBTS, of lunatic, proceedings to be taken by committee, 19 ; 
 charged on realty, executor's rights as to, 103, 104 ; advertise- 
 ment for by executors of deceased, 111. 
 
 DECLARATIONS, made out of Province Act respecting, 63. 
 
 DECLAEATOEY, decree may be made, 358 ; orders, 362. 
 
 DECREE, in alimony suits, registration of, 13 ; in other cases 33 ; for 
 payment of money, a judgment, 43 ; when passed and 
 entered can only be varied on rehearing, 130 ; adminis- 
 tration, see Administration, 160 ; effect of, 340 ; for execution 
 of trust, who may have a, 160, iSl; office copies of to be served 
 on necessary parties, not parties to bill, 151, 152, 217, 218 ; 
 rights of absent parties, reserved by, 165 ; pro confesso, to 
 be passed and entered, 213 ; when absolute, 179 ; when 
 not, effect of service of office copy of, on defendant 180, 
 181 ; when not absolute, 181 ; petition to reopen, 182 , 
 what may be ordered on and interests bound by, 182 ; 
 on default of plaintiff or defendant at hearing, 209, 210. 
 And Order, orders as to 211 ; evidence read at hearing not to be 
 stated in, 211 ; nor liberty to apply reserved by, 212 ; to be 
 divided into paragraphs, 212 ; sums in to be in dollars and 
 cents, 212 ; not to be enrolled till after final order, 213 ; 
 made by Queens Counsel proceedings on, 213 j interlocutory 
 orders not to be enrolled, 214 ; those of course not to be enter- 
 ed, 214 ; motion for decree, order as to, 263 ; in three cases 
 before replication, 253 ; short notice of motion for, in special 
 cases, 264 ; directions what, may be contained in 264 ; on 
 what day motions for to be made, 322 ; to be set down, and 
 notice served at least seven days before hearing, 322 j but 
 not in June unless certified as short, 323. Precipe, 
 may be issued by Deputy Registrar's, 130 ; and see 
 Mortgage Suits, 827, et seq.; on further directions, rules as to 
 322 ; rehearing proceedings for, 295 ; proceedings to reverse, 
 alter, or explain, 293 ; rehearing allowed before or after enroll- 
 ment 293; who may rehear, 294 ; costs of, 294; may be reheard in 
 term, within 6 months after decree, and 4 months after order 
 entered, 294 ; or else time to run one month after judgment 
 given, 294 ; notice of motion for, to be served, and which 
 may be limited, to part, 295 j petition instead of bill for re- 
 
y INDEX. 463 
 
 DECEEE, (^Continued.') 
 
 view, 295 to 29T ; administration order, effect of, 840 ; de- 
 claratory, no objection, 358 ; foreclosure, stayed on payment 
 of amount due, 336,337; but may be prosecuted on sub- 
 sequent default, 337 ; vacation not to count in time to move 
 against, 320. 
 
 DEEDS, form of, under Quieting Titles Act, 97 ; execution of power 
 of appointment by, what sufficient, 102 j action against ven- 
 dor for concealment of, 106. 
 
 DEFENCE, to be raised by answer or demurrer, S61 ; at law, when 
 answer to motion for injunction, 27S. 
 
 •DEFENDANT, service on attorney of, 35 ; when out of jurisdiction, 
 85 ; or residence unknown, 76 ; proceeding in absence of re- 
 presentative of deceased, 147 ; practice as to striking out or 
 adding under order to amend, 163 ; service of bill of complaint 
 on, 165, et seg ; may appear on hearing pro con and argue case, 
 179 ; effect of service of office copy pro con decree on, 180 ; 
 silence of answer no admission of truth of plaintiff's bill, 
 186 ; what admissions to be made by answer, 186; what he may 
 claim by, 187 ; when may set down cause for hearing, 202 — 
 203 ; practice as to examination of as witness, 208 ; effect 
 of non-attendance, 197 ; effect of default of, at hearing, 209 
 210 ; one may be ordered to pay costs to another, 290 ; 
 security for costs from, when obtained, 291 ;may demand two 
 copies of printed bill, 319. 
 DEFICIENCY of assets, mode of distribution of estate, in case 
 
 112 ; order for payment after sale in mortgage suits, 324. 
 DELIVERY, of bill of costs, 48 ; solicitor bound by, 53; when he is 
 allowed to amend, 53 ; when action on allowed at once, 55 ; 
 to third parties, 56 ; of custody of infants under twelve to 
 mothers, 61 ; of deeds, Master may order, 245 ; of possession, 
 no attachment required but writ of assistance granted, 281 ; 
 order for in foreclosure and redemption suits, 337 ; on sales, 
 314; of possession to or from receiver, 173. 
 DEMUEEEK, endorsement on necessary, 131 — 133 ; notice of filing 
 and effect of omission to give notice, 134 ; order respecting, 
 183 to 185 ; when to be set down for argument, 185 ; what 
 defence raised by, 183 ; practice and decisions as to, 183 ; heard 
 on Mondays, 321 ; to be set down and notice served at least 
 seven days before hearing, 322 ; but not in June unless cer- 
 tified short, 323 ; vacation not to count in time for setting 
 down, 320 ; effect of filing on order to produce, 185 ; on exam- 
 ination of party, 196 ; puts an end to injunction when suc- 
 cessful, 276, 
 
464 INDEX. 
 
 DELAY, motion to dismiss bill for, 268 ; fetal, on motions to set 
 aside for irregularity, 263. 
 
 DEPOSIT, for rehearing, 295 ; for sale instead of foreclosure, 326 ; 
 instead of bond for security for costs, 293. 
 
 DEPOSITIONS, of witnesses cannot be read against new parties, 163 ; 
 in another suit may be used at hearing, 207 ; see Evidence, 
 
 EXAMIHATION, WrTNESSES, &C. 
 
 DEPUTY EEGISTEAKS, order respecting, 129; to keep solicitor 
 and agents book, 129, 132, 130 ; issue certain decrees on pre- 
 cipe, 130 ; to make returns 131 ; service of papers by 
 posting in office of, ' 134 ; not to file improperly printed 
 proceedings, 156 ; bill of complaint may be filed with, 160; 
 to make out cause lists, 204 ; transmit documents to other 
 officers, 204 ; see Local Master, Heqistkab and Mastbu. 
 
 DESERTION, effect of, in alimony suits, 12. 
 
 DEVISEES, when to have power to convey realty, 103 — 104 ; may 
 obtain administration order, 150, 338. 
 
 DILIGENCE, what to be shown on motions to dismiss, 269i 
 
 DIRECTIONS FURTHER, when hearing on, 322; cause to be set 
 down and notice served seven days before, 322 ; if plaintiff 
 do not set down 14 days after confirmation of report, other 
 party may do so, 322 ; not to be heard in June unless certi- 
 fied short, 323. 
 
 DISCLAIMER, 189 ; see Answer. 
 
 DISCHARGE, of lis pendens, how, 32. 
 
 DISCOVERY, who are necessary parties to bill for, against corpora- 
 tion, 155 ; no bill to be filed for, only, 165 ; see PaoDOOTloN, 
 190. 
 
 DISMISSAL, of bill, damages may be awarded upon, '73 ; none where 
 no notice of filing answer has been given, 134 ; nor for 
 misjoinder of plaintiffs, 145 ; for non production and non 
 attendance to be examined, 19?; for default at hearing, 209, 
 210 ; order as to motions to dismiss, 264, 265, 266 ; when bill 
 amended, 267 ; when plaintifi' delaying suit, 268 ; what suffi- 
 cient answer to motion for, 266, 269 ; where tender of amount 
 due in mortgage suit, 336 ; in redemption suits, foreclosure 
 and delivery of possession ordered upon, 337. 
 
 DISTRIBUTION, of estate subject to lease, 110 ; rent charge, 111; 
 after publication of executors notice to creditors, 111, 112; 
 on deficiency of assets, 112. 
 
INDEX. 465 
 
 DOCUMENTS, see PKODno|roN, 190 ; Heaeinq, 204, 360 ; Decrees 
 263 ; inspection of by party receiving conduct of decree from 
 Master, 220 ; transmission, 360, 361 ; MASTEa's Office, MoTioKg, 
 259. 
 
 DOMINION, stock, 306, et seq. 
 
 DOBMANT equities, jurisdiction of court respecting, 21, 28. 
 
 DOWEK in Infants estate, power of court as to, 26. 
 
 B. 
 
 ENDOESEMENT, of relief from consequences of breach of cove- 
 nants under Property and Trusts Act, 100 ; of name of soli- 
 citor issuing vrrits, &c., 131 ; bow irregularity in failing to 
 do so waived, 132 ; of address for service by parties acting in 
 person, 133 ; practice on failure to endorse as required, 143 ; 
 of office copy bills, 165; of the same in mortgage suits, 328 ; 
 forms of, 376, 388 ; in alimony suits, 345 ; of office copy de- 
 crees served on interested parties, 152 ; in Chamber proceed- 
 ings, 218; in Master's office, 250; form, 384; of office copy 
 order served on infant attaining 21, 358 : form of, 395 ; on 
 office copy order of revivor, 302 ; form, 385 ; of order requi- 
 ring party to do &c., any act, 281. 
 
 ENTERING CLEEK, order respecting, 128. 
 
 ENEOLLMENT, when to be made, 211, 212 ; none of interlocutory 
 orders, 214; rehearing may be had either before or after, 293 
 
 SEASUEES, when permitted in affidavits, 156. 
 
 EEROE AND APPEAL, Court of, Act respecting, 402 to 413 ; no 
 abatement in, after security allowed, 405, 410 ; appeal to may 
 be discontinued or dismissed, 403; Registrar of Court of 
 Chancery, clerk of, 403 ; when, execution stayed by proceed- 
 ings in, 405 ; who are .Tudges of, their duties and sittings, 
 402, 403 ; judgment of, bow certified to court below, 403 ; 
 orders of court of, 414 to 425 ; form of writ of appeal, 414 ; 
 bond for security for costs, 414, 415; what necessary to stay 
 execution, 414, 415, 416 ; appeals from Court of Chancery, 
 422 ; from, to Privy Council, 423, 424. 
 
 ESTATES, act respecting, settled, 69 ; real and personal, rules as to 
 parties in suits regarding, 151 to 153. 
 
 EVIDENCE, tendering documents with false seal &c., in, to be felony, 
 65 ; in partition matters, decrees and orders under seal of 
 Court to be, 22, 23; affidavits &c., sworn out of jurisdiction 
 65 ; under Quieting Titles act, 81 et seq ; what, may be used 
 at hearing, 204 ; once put in not to be withdrawn without 
 leave,"208 ; at hearing to be left with Eegistrar, 208; not to 
 
 30 
 
466 INDEX. 
 
 EVIDENCE, (Continued.) 
 
 be stated in decree, 211 ; further, applications for to be made 
 Iq Chambers, 215 ; books of accoun,t prima facie evidence in 
 Chambers, 216; in Master's ojEce, 246; costs of not making 
 proper admissions of, 209, 247 ; required on motions and pe- 
 titions, 258, 260; on motions for decree before replication, 
 263 ; what necessary to obtain stop order, 279 ; in support of 
 creditors claims in administration suits, 342 ; see Examina- 
 tion, Hearing, Pkoduotion, Motions. 
 
 EXAMINATION, of parties order as to, 195; practice and decisions 
 as to, 195, 196 ; who considered a party under this order, 196 ; 
 when, can be had, 196; further, on party's own behalf, 197 ; 
 neglect to attend on, how punished, 197 ; effect of, 
 using part of evidence taken on, 197, 198 ; appeal from mas- 
 ters or examiners ruling on, 198 ; evidence taken at, may be 
 used at hearing, 204 ; of witnesses, see Heaeino, 205 to 207 . 
 exhibits put in at, how marked, 208 ; motion as to, to be in 
 Chambers, 215 ; of witnesses on motions and petitions, 260 ; 
 forty-eight hours, notice of, to be given opposite party, 262 ; 
 pro interesse suo order as to, 317 ; notice of motion required for 
 and consequent proceedings on, 317, 318 ; of infants on appli- 
 cations for sales, &c., of their estate, 357. 
 
 EXCHEQUER, Court of Chancery has jurisdiction of Court of, in Eng- 
 land, 71. 
 
 EXECUTORS, to have power to mortgage or sell reality, 104, 105, 
 and to assign lease, 109 ; when liability of, on assigned lease 
 to determine, 100 ; and powers as to rent charge, 110, 111 ; 
 notices by, to creditors. 111 ; distribution of estate by, when 
 deficiency of assets, 112 ; limitation of actions against, 112, 
 113 ; application of, to judge for advice, 113, 114 ; limitation 
 of liability of, 115 ; accounts of, see Master's Office, 223, et 
 seq.; service of, in administration suits, 338 ; may have ad- 
 ministration decree, 339 ; duties of, in administration suits, 
 342, 343. 
 
 EXECUTION, sanction of court required to, deed of land of religious 
 institutions, 59 ; of power of appointment, what sufficient, . 
 102 ; see Error and Appeal. 
 
 EXHIBITS, at hearing, how marked, 208; to be left with Registrar 
 for use of Court, 208. 
 
 EXTENSION, of time, 32 ; by Deputy Registrars, 13 ; in Chambers, 
 315 ; for payment of mortgage maney, 331, 332. 
 
 F. 
 
 FACTS, state of, not to be brought into Chambers, 217 ; or Master's 
 office, 246. 
 
INDEX. , 467 
 
 FALSIFICATICW, of pedigrees, &o., action for, 106. 
 
 FATHEK, see Custody of Infants, 61. 
 
 FEES, tariff of, 395 to 401 ; Suitor's Fee fund, 121, 131 ; returns of, 51 
 
 28; to be paid in stamps, 66 ; Accountant to receive, 125; 
 
 Judges Secretary, 125, 399 ; Deputy Registrars, 129, 400. 
 
 FELONY, tendering documents, witli false seal or signature to be, 
 65. 
 
 FEME COVERT, see Mabried Woman, Wife. 
 
 FIERI FACIAS, payment to be enforced by writ of, 43 ; set aside 
 wben unreasonably issued, 44 ; return to, amended, 44. 
 
 FIGURES, dates and sums in printed proceedings to be in, 156. 
 
 FILING, of bill in outer County, 5 ; lists of, to be returned, 6 ; not 
 notice until lis pendens registered, 31 ; of master's report, 252 ; 
 any party to proceeding may do so, 254 ; report absolute four- 
 teenldays after, 252 ; decisions and practice upon, 252 to 264. 
 
 FILES, taking bill off, for not being properly printed, 156 ; or divided 
 into numbered paragraphs, 157 ; or for being scandalous or 
 impertinent, 157, 158 ; all pleadings to be filed in same office, 
 169 ; marked witb place of filing near the top, 159 ; may be 
 taken off the files where plaintiff's address omitted in bill, 
 160; where filed without sanction, 160; affidavits may be 
 taken off, when scandalous, &c., 256. 
 
 FIRE, relief from breach of covenant against, 100. 
 
 FORECLOSURE, when personal service of bills for, dispensed with, 
 86 ; what necessary to obtain final order for, 333, 335 ; when 
 Court will re-open, 331, 332 ; proceedings in suits for, where 
 state of account changed, 386 ; dismissal of bill for, on pay- 
 ment of amount due, 336 ; decree for, stayed on payment of 
 amount due, 336 ; order for delivery of possession in, 337 ; 
 may be granted in redemption suits, 339 ; notice to be served 
 on infants attaining majority in, 358, 395 ; forms of bills for, 
 given in schedules, 365 ; affidavits of service of, in, 388 ; see 
 MoRTGAQE Suits, 324, et seq. 
 
 FOREIGN GOVERNMENTS, practice where suit instituted by, 140; 
 or by foreign corporations, 142. 
 
 FORFEITURE, controlled by Property and Trusts Act, as to leases, 
 &o., 98, 99 ; as to non-insurance, 100. 
 
 FORMS, of un4ertaking as to damages in injunction cases, 73 ; under 
 Quieting Titles Act, 95 to 98 ; given in schedules to orders, 
 of mortgage bill, 865 ; of redemption bill, 367 ; of bill for 
 partnership accounts, S68 ; of bill for dissolution of partner- 
 
468 • INDEX. 
 
 FOKMS, {Continued.') 
 
 ship, 369 ; of till for specific performance, 3*70 ; of bill for 
 specific performance of parol agreement, 371 ; of bill to stay 
 waste, 3'72 ; of bill to stay trespass in the nature of waste^ 
 372 ; of bill to use trustee's name, 374; of bill to have new 
 trustee appointed, 375 ; endorsement on office-copy of bill of 
 complaint, 376 ; notice to absconding defendant, 377 ; affida- 
 vit of service of office-copy of bill, 377 ; notice in cases of 
 absconding defendant, 378 ; of answer, 379 ; of jurat, 380, 
 384; of affidavit on production, 880; of replication, 381; 
 of notice to admit, 381; of administration order, 382; of 
 notice of motion for, 397 ; of appointment for Chambers, 383 ; 
 endorsement on office-copy decree under order 60, 365 ; on 
 office-copy decree under orders 206 & 245, 384 ; endorsement 
 on order to do an act, 384 ; endorsement on order of revivor, 
 385 ; precipe to pay in money, 385 ; for cheque, 385 ; con- 
 ditions of sale, 386 ; report on sale, 386 ; notice by plaintiff 
 of conducting sale, 387 ; endorsement on bill in mortgage 
 suits, 368; notices to incumbrancers by Master, 389 ; admin- 
 istration notice of motion, 390 ; advertisement for creditors 
 in administration, 391 ; notice to creditor to produce docu- 
 ments, 391 ; affidavit of executor in administration 392, 393 ; 
 notice to creditor that claim allowed, 394 ; to creditor to prove 
 his claim, 894 ; notice to creditor that cheques are ready, 395 ; 
 endorsement on order served on infant on attaining majority, 
 895 ; tariff of fees, solicitor, 395 ; counsel, 393 ; Master, 399 ; 
 Eegistrar, 899 ; Judges' Secretary, 899 ; Special Examiners, 
 400 ; Clerk of Records and Writs, and Deputy Registrars, 400 ; 
 Sheriffs, 400 ; of bond for security for costs in Error and Ap- 
 peal, 415 ; of oath of sureties to, 416 ; of petition of appeal to 
 Court of Error and Api)eal, 422 ; of bond on appeal to Privy ■ 
 Council, 433 ; Appendix of, 426, 
 
 PEAUD, jurisdiction of Court as to, 11; shewing, on application for 
 taxation of costs, 57. 
 
 FRIDAY, Good, see Holidays, 319, 323. 
 
 FRIEND, next, married woman must apply for taxation of costs by, 
 50; see Pakties, 142, 146; address of, to be stated in pro- 
 ceedings, 160; must be solvent, 143, 291; proceedings in 
 cases of death of, 143 ; not necessary in applications by mar- 
 ried women, under Custody of Infants' Act, 62; or for infants 
 on application for guardian under Settled Estates Act, 71. 
 
 FURTHER DIRECTIONS, hearing on, 822 ; see Directions F0ethee. 
 
 G. 
 
 CABNISHMENT of debts, examination for, 44 ; see Stop Oedees, 278. 
 
INDEX. 469 
 
 GAOLS, prisons of Court, St ; transfer of persons arrested, to and 
 from different, 48. 
 
 GAOLEES, to assist and obey Judges, 81. 
 
 GENERAL ORDERS, statute regarding, 36, St; for what purposes 
 Court may alter, 37 ; effect of consolidated, upon former or- 
 ders and usages, 1!8, 119. 
 
 GOOD FRIDAY, see Holidays, 819, 323. 
 
 GUARDIAN, may concur in special case, TO, how appointed in order 
 to do so, 70 ; appointed in Chambers, 214; may be appointed 
 by Local Masters, 130 ; appointment of, generally, mode 
 of, to infants and persons of unsound mind, 354, et seq ; in 
 proceeding before Master, 356 ; to parties added by order of 
 revivor, 302 ; to person at his own request, 356; other than 
 guardian ad litem, 358 ; petitions for sale of infants estate, 
 to be in name of, 357 ; costs of guardian ad litem, 288. 
 
 HEARING, amendment at, in case of fraud, 165, 189; pro confesso 
 defendant may argue cause at, 189 ; on bill and answer, 200 ; 
 order as to 201; change of venue, 201, 202; when publica- 
 tion to pass 202 ; publication, either party may set down 
 tor, 202; when defendant may serve notice of, 203; docu- 
 ments to be used at, transmission of, 204, 306, 361 ; evidence 
 to be used at, 204; evidence of witnesses out of jurisdiction 
 how obtained, 205; all witnesses to be examined and cause 
 argued at, 205, 206 ; parties may be examined at, 206 ; and 
 witness recalled or impeached at, 207; depositions and affi- 
 davits may be used by leave at, 207 ; how exhibits to be 
 marked, 208 ; evidence put in at, not to be withdrawn without 
 leave, 208 ; to be left with Registrar for the use of Court, 
 208; supplemental answer may be filed at,. 189; Court may 
 make decree at,, saving rights of absent parties, 155, 189 ; 
 scandalous and impertinent proceedings, taken off the files 
 at, 157 ; costs of evidence which ought to have been admitted, 
 209 ; Solicitors to attend or pay costs of neglect, 209 ; default 
 of parties at, equivalent to dismissal on the merits, 209, 210; 
 on further directions, 322 ; on motion for decree, 263 ; special, 
 on motion for decree by leave, 264; days for, 322; what 
 setting down and notice required, 322; only short causes to 
 be argued in June, 323. 
 
 HEIR, may have administration decree, 150. 
 
 HOIilDATS, orders as to 319, 323. 
 
 HUSBAND may concur in special case as to wife's settled estate,. Tl j 
 when infants will be removed from custody of, 62 etseq; 
 must join in power of attorney to wife's realty, 108 ;. service 
 of, with bill of complaint for wife, 166. . 
 
470 INDEX. 
 
 IDENTITY, of Defendant, served out of jurisdiction, to be strictly 
 
 proved, 174. 
 IDIOT, see lunatic. 
 IMPEKTINENGE exceptions for, abolished, 120 ; pleading maj' be 
 
 taken of files for, ] 57 ; when motion to take off files for, to 
 
 be made, 158 ; costs of, 158. 
 
 IMPEI80NMENT for debt, Act regarding, 40 et seq. 
 INGUMBEANCE, action against vendor &c., for concealment of, 106, 
 INCUlVtBRANCEKS, priority of, need not be determined before sale, 
 325, 326 ; prior, when to be made parties, 329 ; subsequent, 
 to be added by Master, 329 ; evidence on which Master to 
 act, 329 ; may have decree for sale, 325, 335 ; effect of failing 
 to appear, 330 ; forms of notices to, 387, 389. 
 
 INFANTS, jurisdiction of Court over, 23, 61 ; custody of, 23, 61 ; 
 sales or leases of estate of, 33, 356 ; bills of costs against, 
 50 ; act respecting custody of, 61 ; when under twelve, cus- 
 tody to be given to mother, 61 ; adultery a bar to, 62 ; main- 
 tenance of, 61 ; process of contempt against witnesses not 
 attending on petition for, 62; decisions upon Act, 62, 63 ; settle- 
 ment of estates of, 68 ; orders regarding, to be made in Cham- 
 bers, 214, 356 to 358 ; practice as to suits instituted by, 143, 
 145 et seq ; see PARTIES; necessary parties to be served with 
 of&ce decree, J 52 ; form of endorsement, 365 ; when to have 
 a day to shew cause, 145 ; order to be served on, on attaining 
 twenty-one, 358 ; form of, 3i) 5 ; motion for decree against, 
 263 ; costs of guardian ad litem of, 288 ; in mortgage cases 
 decree against, to be made in Chambers, 326 ; and persons of 
 unsound mind, order as to, 353 ; bill of complaint, not to 
 be served on infant under ten, and one copy for a class to 
 be served on person under whose care they reside, 353 ; 
 order pro con. against invalid, 353 ; guardian ad litem to, how 
 appointed, 214, 130, 354; notice of motion to be served forj 
 355 ; practice as to appointing in proceedings before Master, 
 356 ; appointment of, at persons request, 356 ; and parties 
 examined viva voce, on application for, 357, 358. 
 
 INPKINGEMENT of patent, damages in cases of, 72. 
 
 INF OEMATION, practice as to, 188, ei seq; when dismissed, 140; 
 by Corporations, 141 ; must be signed by Attorney General, 
 160. 
 
 INJUNCTION, to stay waste, 11 ; by Judge of County Court, 30; 
 damages may be awarded in cases of, 72, 276 ; form of under- 
 taking required, 73; how affected bymotion to amend, 164; ' 
 by filing demurrer, 184 ; order as to, 273 ; only granted on 
 
INDEX. 4T1 
 
 INJUNCTION, (Continued.) 
 
 an affidavit of merits by plaintiff or his ageirt, 273 ; none 
 where defence at law, 274; nor where bill makes a differ- 
 ent, case for relief, 274; abandoned by amending bill, 
 pending notice, 275 ; but not necessarily prejudiced by order 
 to amend after, 275 ; costs not given on refusal of, 275 ; may 
 be against plaintiff, where prayer in answer for, 275 ; in 
 foreclosure suits, when granted, 275 ; interim, when granted, 
 275 j undertaking as to [damages, required on, 72, 276; how 
 affected by dismissal of bill, 275 ; abatement does not dis- 
 solve, 277; operates from date, 277; proper motions on 
 breach of, 277 ; affidavits may be used on motions regard- 
 ing, Sll ; offices of Registrar and Clerk of E. & W., to be open 
 for, during vacation, 323. 
 
 INSPECTOR, see Quieting Titles Orders, 346 to 353, 
 INSTITUTIONS, Religious, lands o^ 59. 
 
 INSUKANCE, relief, when given for non, 100 ; endorsement of 
 relief on lease, 100 ; benefit of, given to persons beneficially 
 entitled, 101. 
 INTEEEST, proceeding where certain, not represented, 147, 148 ; 
 
 Account, regulation as to, 310. 
 INTERIM, alimony, what necessary to obtain, 13, 345 ; effect of not 
 
 applying for, 13. 
 INTERLINEATIONS, what permitted, 156. 
 INTEELOCTJTORT, orders not to be enrolled, 214. 
 INTERPRETATION, clause in Property and Trust Act, 107; in Pre- 
 liminary Orders, 120. 
 INTEREOG-ATORIES, bill not to contain, 160. 
 
 lEREGULARITZ, notice of motion to set aside for, must specify, 
 269 ; delay in moving against fatal, 269 ; taking a step 
 waives, 269; taking copies waives, 318. 
 ISSUES, trial o^ 33 ; by Court itself, 33 ; see EEPHCAHoif, 198 ; hear- 
 ing, 202. 
 
 J. 
 
 JOINT AND SEVEEAL DEMAND, rule as to parties in suit re- 
 garding, 153. 
 
 JOINING, issue, 198; see Replication. 
 
 JUDGES, number of, appointment and precedence, 1 ; tenure of 
 office, removal and salaries, 2 ; pensions, 3 ; oath, 4 ; to sit 
 together, 8 ; separately in first instance, 9 ; Queen's Counsel 
 to hold sittings for, 117 ; and have power of, 117; fiat of to 
 petition unnecessary, 259. 
 
472 INDEX. 
 
 JUDGES' SECKETAKY, order respecting, 124; to git in Chambers, 
 124; dispose of references, sign, settle, and pass Chamber 
 orders, 125 ; receive fees, 125 ; appeal from, 295. 
 
 JUDGMENTS OP COUET, how authenticated, 1 ; at law, decree or 
 order to have effect of, 43 ; examination of parties under, 
 44 to 41. 
 
 JUNE, only causes certified short, to be set down for argument in, 
 323. 
 
 JURAT, order as to, 255 ; form, 380, 384. 
 
 JURISDICTION OF COURT, 11, 12; in lunacy, 18; partition, 21 ; 
 infants and their estates, 23; dormant equities, 21 ; appeals 
 from County Court, 30 ; Surrogate Court, 38 ; Commissioner 
 of Crown Lands, 31 ; to make vesting orders, 31 ; as to writs 
 of arrest, 41 ; attachment, 42 ; fieri facias, and ven. ex., 48 ! 
 sequestration, 45; under Common Law Procedure Act as to 
 costs, 48; settled estates, minors settlements and special cases, 
 69 ; in matters of revenue, 7l ; quieting titles, '77. 
 Seevioe on Dependant, out of, 35, 167, 168, 173 ; of orders of re- 
 vivor, out of, 302 ; taking bills pro. con. when served out 
 of, 176, 177 ; answer when sworn out of, what required, 
 189; communications out of, 193; see Production; evi- 
 dence of witnesses out of, 204 ; cost of service out of, 284. 
 
 JURY, trial of issue by, 33,34; from Surrogate Court, 39; of Lunacy, 
 
 14, 75. 
 
 E. 
 
 KNOWLEDGE, statements in affidavits, to shew means of, 256. 
 
 L. 
 
 LANDS, of Religious Institutions, Act respecting, 59; interpretation 
 of, in Property and Trusts Act, 107 ; mortgage on, to be paid 
 by devisee, 118 ; vesting order, may be made of, 31, 
 
 LAST ANSWER, meaning of, 200. 
 
 LAW STAMPS ACT, 66. 
 
 LAW, costs of proceedings at and in equity m mortgage suits, 338. 
 
 LEASE, of infants estate, 22, 69, 366 ; of lands of religious institu- 
 tions, 60; of settled estates, 69; breach of condition in, 
 effect of Property and Trust Act on, 98 ; waiver, 99 ; covenant 
 • to insure in, 100 ; endorsement of, relief for failure to, 100 ; 
 bei^eficial interest of covenant to insure in, 101 ; receipt 
 for rent sufficient to relieve from breach of condition to 
 insure, 101 ; assignment of, by executor 109 ; when his 
 liability on lease determined after 110. 
 
 LEDGER KEEPER, his duties as to payment and receipt of money, 
 305, 306. 
 
INDEX. 473 
 
 LEGACIES, includes annuity, specific or pecuniary legacy, 120. 
 
 LEGATEE, interpretation of, 121 ; may have administration decree, 
 150. 
 
 LESSOR, rights of, against lessee's estate, 110. 
 
 LICEjSfSE, effect of, under property and trusts Act, 98. 
 
 LIMITATION, see dormant equity 27. 
 
 Statute of, proceedings by another party does not stay opera- 
 tion, T9 ; effect of filing bill of complaint, 161; on actions 
 against executors, 112, 113; on liability of executors, 115. 
 
 .LIS PENDENS, filing and form of, 32 ; alterations in, by Registra- 
 tion Act, 32 ; how discharged, 32, 161 ; not reqiiired in cases 
 of registered mortgages, 32 ; must be continued prosecution 
 under, 161. 
 
 LUNATIC, meaning of word, 14 ; jurisdiction of Court over, how 
 person may be declared a, 14, 16, 73 ; traverse by, 15,73; 
 new trial by, 74; production of, at trial, 75; property of, 
 how protected, 16 ; committee of, how appointed, 18, 19, 
 358; payment of debts of, 19; realization of estate of, 19 I 
 et. seq., 69, 70 ; costs in case of a, 76, 76 ; rule as to parties 
 to bill where one a, 139 ; practice as to service of bill on, 
 166; order pro. con. against invalid, 353; mode of appoint- 
 ing guardian ad. litem, to, 353 ; where made a party in the 
 Master's office, 356 ; appointment of committee to person 
 and estate, 358. 
 
 M. 
 
 MAINTENANCE of Infants, Act respecting, 61. 
 
 MAESIAGE, proof of, in alimony suits, 13; settlement of infants' 
 estates upon, 69. 
 
 MAEEIED WOMEN, bill of costs against, 50; as to access to chil- 
 dren, see Act, 61 ; practice in relation to settled estates, 70 ; 
 requisites of power of attorney by, 108 ; practice where suits 
 instituted by, 142, 146; service of bill on husband for, 166; 
 taking ^ro con against, 176; no committal of, for contempt, 
 279. 
 
 MASCULINE, includes Feminine, 120. 
 
 MASTER, in Ordinary, jappointment of 4; Clerk, 4; not to receive 
 fees, 4; accounts to be rendered by, 5 ; salary, 6 ;„word in- 
 - eludes Accountant and Local Master, 121 ; appeal from, 198 
 . may conduct sale, 313. 
 
 MASTERS, Local, appointment of, 5; their duties and pbwers, 6 
 may retain fees, 7 ; may direct payment of costs in certain 
 cases, 285 ; to transmit bills of costs to taxing-officer, 287 
 to insert no costs until revised, 288 ; office-copies decree 
 certified by, 861. 
 
474 INDEX. 
 
 MASTER'S OFFICE, orders as to 219 ; orders to be brought into with- 
 in 14 days, 219; Master may give conduct of to party, 219, 
 220 ; proceedings on references, 220, 221 ; warrantto be given' 
 221 ; Master to give directions as to proceedings, 221, 222 
 may direct one solicitor to represent class, 222 ; powers o 
 Master as to accounts 223 to 24S ; may issue certificate for 
 examination of witnesses out of jurisdiction, 248 ; cause pa- 
 pers, &c , to be produced, 243 ; may cause advertisements 
 for creditors to be issued, 244 ; may allow creditors costs of 
 proving claims, 245 ; order delivery of deeds and setfie con- 
 veyances, 245 ; form of accoimts in, 245 ; may direct books 
 of account to he prima facie evidence, 246 ; state of facts not 
 to be brought into, 246 ; copies of deeds, &c., to be, 246 ; Mas- 
 ter's direction sufficient without warrant, 247 ; may ascertain 
 what is admitted, 247 ; ascertain costs of failing to admit, 
 247; such costs payable when Report absolute, 248 ; costs when 
 deducted from general costs, 248 ; notice of surcharge, 248 ; 
 Master's book to be kept, and contents of, 248 ; any person 
 entitled to Master's certificate of proceedings, 288 ; Master to 
 shorten proceedings, and only give one appointment, 249 ; 
 consequences of default same as on warrant, 249 ; add parties 
 in his office, 250 ; and mode of doing so, 250 ; parties to move 
 against within 14 days, 250 ; warrant to settle report, 260 ; 
 objections to Master's report to be raised on settling, 250 ; 
 documents not to be recited in Master's report, 252 ; report 
 to be delivered to party prosecuting reference, 252 ; to be ab- 
 solute in fourteen days after filing, 252 ; any party may file, 
 254 ; rules as to directing of payment of money, 254, 255 ; 
 practice as to appointing Receiver in, 270 ; notice of motion, 
 to commit for non-production in, to be served on solicitor, 
 282 ; proceedings in mortgage suits, 329 to 335 ; report on 
 sale, 313 ; to determine questions on abstract of title, 315 ; 
 not to make report on, 315 ; accounts to be taken in admin- 
 istration suits, 341, 342 ; appointment of guardian adlitem in 
 proceedings in, 354, 355, 356 ; to person at his own request, 
 356 ; examination of witnesses and infants in, on petition for 
 sale of infants' estate, 357, 358 ; reference to, may be dispensed 
 with, 360. 
 
 MILEAGE, onl^ taxable when done by Sheriff, and on affidavit, 283. 
 
 MINORS' ESTATES, Act respecting, 69. 
 
 MINUTES, to be settled and passed by Registrar, 121 ; notice of, not 
 to be given unless by direction of, 121 ; of Chamber orders 
 to be settled and passed by Judges' Secretary, 125. 
 
 MISDEMEANOR, concealment or falsification of title a, 106. 
 
INDEX. 475 
 
 MISJOINDEE, bill not to be dismissed for, 145, 146, 14T. 
 MONET IN COURT, control of, 36 ; rules as to payment of, 254, 255. ^^i' 
 MONTH, application for taxation of costs within, 48 et seq, ; none 
 after twelve months, 51 ; action before expiry of, 55. 
 Means calendar mouth, 121 ; lunar month, 161, 362. 
 MORTGAGE, registered, no lis pendens required, 32 ; when trustees 
 or executors, &c., to have power to make, 102, 104, 105 ; in- 
 terpretation of, in Property and Trust Act, 103; devisee- of 
 land subject to, to pay same, 116 ; see Mastbk's OmOB. 
 MORTGAGE INYESTMENTS, regulations as to, DOS, 310. 
 MORTGAGE SUITS, order as to, 324 ; sale and personal order for de- 
 ficiency against mortgagor may be had in, 325 ; surety may be 
 made a partyto, 325 ; Court may direct immediate sale, 325; if 
 any but plaintiff ask sale, deposit required, 325 ; plaintiff may 
 elect that defendant conduct sale, in which case deposit to 
 be returned, 325 ; what plaintiff to produce at hearing pro 
 con, 325, 326 ; Court may take immediate account, 326 ; decree 
 against infants in Chambers, 326 ; when Registrar to issue 
 precipe decree, 327, 328 ; parties interested in equity of 
 redemption may be added in Master's office, 328 ; prior mort- 
 gagee not to be party to suit of subsequent mortgagee 
 unless relief prayed against him,- 329 ; what clauses to be 
 considered inserted in short forms of decrees, 329 to 335 j 
 Master to enquire as to incumbrancers — plaintiff to bring 
 Registrar's and Sheriff's certificates, 329 ; Master to issue 
 notices, 330 ; party added may move to discharge — non 
 attendance to amount to disclaimer, 330 ; Master to take 
 account, tax costs and settle priorities, 331 ; practice as to 
 extending time or re-opening foreclosure, 331, 332 ; Master's 
 report what to contain, 332 ; what necessary to obtain final 
 order foreclosure, 333 ; all necessary subsequent accounts to 
 be taken by Master, 334 ; Master to settle conveyance in 
 case ol sale, 334; order for deficiency when granted, 334, 
 335 ; incumbrancers may have sale instead of foreclosure 
 decree, 335 ; notice of credit may be given when state of 
 account changed, 335 ; or may have reference to Master to 
 ascertain, 336 ; defendant may move to dismiss bill on pay- 
 ment of amount due, 336 ; or to stay proceedings after 
 decree, 336 ; proceeding on, upon subsequent default, 337 ; 
 delivery of possession in foreclosure and redemption suits, 
 337 ; effect of proceeding both at law and in equity, 338 ; in 
 redemption suits where plaintiff does not redeem, 338 ; 
 costs of, where suit should have been brought in County 
 Court, 289; see Sales, 310; (see Master's Office.) 
 t^«. ^ a^. ^/evM^ ^i^g^j^ %^}i-. 4 3Z. 
 
476 INDEX. 
 
 MORTGAGEES, when relieved from enquiring as to due execution of' 
 powers, 105 ; action by, for concealment, &c., of title, 166; 
 interpretation of, 108 ; (see Master's OrFiCB.) 
 
 MORTGAGOES, power of Court as to dormant equities of, 27; fore- 
 closure in County Courts, 31 ; benefit of insurance by, given 
 to mortgagee, 101 ; liable to action for concealment, &c.,106 ; 
 interpretation of, in Property and Trusts Act, 107. 
 
 MOTHER, access to infants, 61 ; act relating to, 61 ; adultery of, bar 
 to order in favour of, 62: 
 
 MOTIONS, when afadavits to be used on, must be filed, 257. 
 
 And petitions. Order as to, 257 ; notice to be served with or after 
 bill, 257 ; two days notice required, 259 ; same with pe- 
 titions, 259 ; Judge's fiat on petition unnecessary, 260 ; 
 witness may be examined on, 260 ; practice and decision 
 on, 260,261, 262; forty-eight hours notice to be given, 262; 
 any person who has made an affidavit may be examined on 
 262 ; but forty-eight hours notice to be given to other side, 
 262, 263. 
 Foe decree order as to, (see Decbeb), 263; when heard, 322. 
 To dismiss, order as to, 264, 265 ; when bill amended, 267 ; 
 where p!aintiff delaying suit, 268 ; what necessary to an- 
 swer, 269 ; to set aside for irregularity, must specify irregu- 
 larity, 269; party must move promptly, 269 ; for receiver, 
 270 ; for injunction, 274; practice as to, 275 ; for order abso- 
 lute, 281 ; to committ for non-production to be served on 
 Solicitor, 282 ; rule as to costs of, 284 ; heard on Tuesdays, 
 322 ; to discharge order of revivor, 301 ; instead of bill of 
 review, &c., 295, ei seq. ; for examination pro interesse suo, 
 317. 
 
 N. 
 
 NAME, order to amend clerical error in, obtained at any time, 162. 
 
 NEW TRIAL of issue, how obtained, 34 ; in cases of lunacy, 74. 
 
 NEXT FRIEND, see Friend. 
 
 NEXT OP KIN, may have administration decree, 150. 
 
 NOTARY PUBLIC, Affidavits, &c., sworn out of jurisdiction, may be 
 taken before, 64. 
 
 NOTICE, filing bills, none until Us pendens registered, 32 ; of 
 settling minutes, when to be given, 122; practice on, &c., 
 in cases of default, 123 ; of filing pleading, to be given same 
 day, 134 ; effect of neglect, 134 ; of order to change solicitor, 
 135 ; of motion for leave to file supplemental answer, 188 ; 
 to admit, order regarding, 200 ; consequences of neglect or 
 refusal to, 200, 209 ; order as to, 201 ; forms of, 379, 380 ; of 
 hearing by defendant, 202 ; of points on which cross exami- 
 
INDEX. 477 
 
 NOTICE, {Continued.) 
 
 nation ia required, 248 ; of motioA, two clear days notice 
 required, 259.; endorsed on petition, 260 ; forty-eight hours 
 to be given to opposite party, 262 ; of motion for decree, 
 263 ; in special cases, 264 ; of motion to dismiss for want of 
 prosecution, 264 ; where bill amended, 267 ; where plaintiffs 
 delaying suit, 268 ; what sufficient answer to, 269 ; of motion 
 to set aside for irregularity must specify it, 269 ; party must 
 move promptly, 269 ; taking a step waives it, 269 ; of appli- 
 cation for stop order not required, 278 ; of application to 
 commit, for not obeying mandatory orders, 281 ; of motion 
 for order absolute, 281 ; in cases of non-production to be 
 served on solicitor, 282 ; of hearing, 7 days required, 322 ; 
 of credit in mortgage suits, 335 ; of motion for rehearing, 
 may be limited to part of decree, &c., 295 ; of motion for 
 amendment where suit defective, 302, 303 ; of motion pro 
 interesse mo, 317 ; of motion for administration decree, 339 ; 
 fourteen days notice required, 363 ; for appointment of 
 guardian to infant or lunatic, 354. 
 
 O. 
 
 OATH of Judges, 4 ; officers of Court, 8 ; see Jueat. 
 
 OATHS, Commissioners to administer, appoifiited by Judges, 5 ; by 
 Governor in Council to administer, out of Province, 63 ; 
 et seq 
 
 OFFICERS of Court, appointed by Governor in Council, 'i ; oaths of, 
 8 ; order as to, 121 ; Registrar, 121 ; Accountant, 123 ; Judge's 
 Secretary, 124; Clerk of Records and "Writs, 125; Registrars 
 Clerk, 128; Entering Clerk, 128. 
 
 OFFICE COPIES of affidavits, not to be taxed to party filing, 257 ; 
 of bills, to be served, 165 ; effect of service of, 166 ; notes 
 and decisions as to, 166 ; of amended bills, 167 ; substitu- 
 tional service of, 170 ; of decrees, to be served on interested 
 parties, 151, 152; in chamber proceedings, 217, 218; i^ 
 Master's office, 250, 361 ; may be made by Deputy Registrar, 
 361; of certain proceedings dispensed with, 318; of pro con 
 decree, 180; of decrees on parties added, 151, 217, 250; 
 of order of revivor, 301 ; endorsement on bills in alimony 
 suits, 345 ; in ordinary suits, 376 ; in mortgage suits, 388 ; 
 of decrees, 284 ; of order served on infant attaining twenty- 
 one, 358. 
 
 OPINIONS of scientific persons may be obtained, 360 . 
 
 ORAL EXAMINATION of judgment debtor, 46 ; evidence may be 
 used on motion, 258. 
 
478 
 
 INDEX. 
 
 ORDEES, what made by Deputy JBegistrars, 6; to remove cases from 
 Surrogate Court,, 39 ; terms imposed, 39 ; to have the force of 
 judgment, 43 ; for taxation.of costs, 48 et seq. ; for delivery of 
 deeds on do, 54 ; abrogated, 118; word " order " includes decree 
 and decretal order, 121; to be settled and passed by Eegis- 
 trar, 121 ; entered by clerk, 121 ; to be bespoken within seven 
 days, 122 ; settled and passed, 123 ; made by Judges' Secre- 
 tary, 124; how varied or discharged, 124; how appealed 
 from, 124, 295 : of course to be drawn by Clerk of Eecords and 
 Writs, 127; Deputy Registrar, 130; what to be issued by 
 Deputy Registrar, 130 ; to change solicitor, 135 ; notice of 
 to be given, and eifect of omission, 135 ; to amend, 161, 162, 
 163, 104, 165; see Deohee, 211; Revivor, 29'7, et seq. ; inter- 
 locutory, not to be enrolled, 214 ; of course not to be entered, 
 214 ; stop, 278 ; to do an act to state time, 281. 
 OUTER COUNTY, bill filed in, powers of Deputy Registrars, 6. 
 OVEE CHAEGE, as ground for taxation of bill, £1, 57. 
 
 P. 
 PARLIAMENT, address of, for removal of Judge, 2. 
 PARTIES, all chargeable by bill of costs, may apply for taxation, 
 50 ; acting in person, order as to, 131 ; to endorse addresses 
 for service &c., 133 ; practice on neglect, 134. 
 Okder as to, 138 ; practice where Grown a party, 138 ; foreign gov- 
 ernments, 140 ; corporations, 140 ; married women , 142; in- 
 fants, 143 ; bill not to be dismissed for misjoinder of, 145 ; 
 rule as to proceeding in absence ofcertain, 146, 147, 148, 149; 
 defendant unable to take objection for want of, in certain 
 cases, 149 ; rules as to parties in administration suits, for 
 execution of trusts and to stay waste, 150i; assignee of chose 
 in action may institute suit, 151 ; necessary to be served 
 with oflice-copy decree, 162; rules as to trustees, 151, 152, 153; 
 joint and several demand, 153; partnership, 154; corpora- 
 tions as plaintiff or defendant, 155 ; decree saving rights 
 ,of absent, 155 ; what, bound by pro con. decree, 183 ; order 
 of course to amend by adding, obtained after replication, 
 162; see Examination of, 196, any of, may set down cause 
 202; added in Chambers, 217; to move against orders 
 within fourteen days, 218 ; having carriage of order in Mas- 
 ters oflice to proceed within fourteen days, 219; Master may 
 give conduct to other party, 219 ; Master to direct what, to 
 attend on reference , 222; may direct one solicitor to repre- 
 sent class, 222 ; added in Master's office to be served with 
 office-copy decree, 250 ; to object within fourteen days, 280 ; 
 added in mortgage cases, see Moetoa&e Sdits, 328, et. aeq. 
 
iifDEX. 479 
 
 PAETITION, jmisdiotion in, 21 ; effect of decrees Sec, in, 22, 28; 
 rules to costs in suits for, 289. 
 
 PARTNEESHIP, necessary parties to suit regarding, 154; service of 
 bill on member of, 167. 
 
 PARTY, interpretation of word, 120. 
 
 PATENT, damages in cases of, 'i2. 
 
 PAYMENT OP MONEY, decree or order for, deemed a judgment, 
 4S; by what writs enforced, 43; effect of payment of bills 
 of costs, on application for taxation, 57 ; into Court of pro- 
 ceeds of sales of timber where tenant for life, 103. 
 What direction necessary for, 212 ; directions as to made in Cham- 
 bers, 215; directions as to in Master's report, 254,255; 
 see Stop Oedees, 2V8 ; no contempt fornon, 279; in adminis- 
 tration orders, 345 ; into and out of Court, 305 ; practice and 
 orders, 305, 306; sale of real estate for, by Trustees, "i03; 
 .of debts, 104. 
 
 PEDIGREE, action of falsification for 106-; to be broughtinto Cham- 
 bers, 217 ; Master's office, 245. 
 
 PENSION, Judges, 3. 
 
 PERSON, interpretation of word, 120. 
 
 PERSONAL PROPERTY, power of assignment of, 106 ; vendor of, 
 liable to action for concealment, &c., of title, 106, 107. 
 
 PERSONAL SERVICE, when dispensed with by statute, 35, 
 
 PETITION, for custody of infants, 61 ; may be without next friend, 
 62 ; decisions upon Act respecting infants, . 62 ; necessary 
 under Settled Estates Act, 71 ; under Quieting Titles Act, 79 • 
 (see QuiETiNO Titles Act) filing of under Quieting Titles Act 
 not a proceeding for contestant, 79 ; to re-open pro eonfesso 
 decree, 182 ; to re-hear 295 ; what notice of hearing to 
 add &c,, to decree, 322 ; when heard, 322, 323 ; what setting 
 down required, 323, 
 
 PETITIONS AND MOTIONS, order as to, 237 ; (see Motions,) when 
 petition should be served instead of notice of motion, 259; 
 two clear days notice required, 259 ; practice and decisions 
 as to, 260 ; Judge's fiat not necessary, 260 ; notice instead of, 
 260 ; witnesses may be examined on, 260 ; or persons making 
 affidavits may be cross-examined, 282; forty-eight- hours 
 notice to be given to opposite party in either case, 262 ; 
 reasonable notice to witness, 262 ; when heard in Court, 
 322 ; instead of bill of review, 295 ; for sale of infants 
 estate, 356. 
 
 PLAINTIFF, includes iuformantj 120; (see Bill of Complaint and 
 Pasties.) 
 
480 INDEX. 
 
 PLEADINGS, order as to, 156; may be written or printed, 1 56 • 
 dates and sums to be in figures, 156 ; what paper and type 
 to be used for printing, 156; to be divided into numbered 
 paragraphs, 156, L5T; rules as to scandal or impertinence, 
 costs of when unnecessarily long, 158! 
 
 PLEADINGS, to be filed in same office, 159 ; to have name of place 
 of filing marked, 159. 
 
 POSTNUPTIAL SETTLEMENTS, act regarding settled estates, ex- 
 tends to, 10. 
 
 POWERS, of Court, 11; et. seq , 117 ; (see Jumsdictioh.) 
 
 Of appointment, what sufficient execution of, 102 ; of sale con- 
 ferred on trustees, devisees and executors of, 104, 105 ; of 
 assignment of Chattels, 106 ; of Attorney by married women 
 requisite of 108 ; general, how far to be exercised, 108 ; 
 acts done under, how far valid, 109 ; of Master, 223 to 243. 
 
 POSSESSION, order for after sale, 314 ; after foreclosure or in re- 
 demption suit, 337. 
 
 PEECEDENOE, of Judges, 1, 2; of Accountant, 124. 
 
 PEELIMINARY ORDER, abrogation of former orders, 118,119; 
 abolition of certain writs, &c , 119; interpretation clause 
 120. 
 
 PRESERVATION, of property pending litigation, rules as to parties, 
 151. 
 
 PRESSURE, as ground for taxation, 51, 57. 
 
 PRINCIPALS, rules as to parties, 153, 154. 
 
 PRINTING, order as to, 138, 139. 
 
 PEIYILEGE, (see Peoduction op Documents,) 
 
 PRIV'T COUNCIL, appeal to by Judge, 2. 
 
 PROBATE, Jurisdiction in cases of contested, 38. 
 
 PROCESS, of contempt for non-payment of costs abolished, 41 ; order 
 as to, 279 ; writ of attachment, when to issue, 27& : none 
 against married women, nor for costs or non-payment of 
 money, 279 ; when sequestration granted, 280, 281 ; a time 
 for closing act to be specified in order, 281 ; none required 
 for possessors, 281 ; notice of motion for order absolute to 
 be given, 281 ; to commit for non-production to be served on 
 Solicitor, 282; on party entitled to enforce obedience, 282 ; 
 for non-delivery of possession, 336. 
 
 PRO CONFESSO, motion for, on service on Attorney, 35 ; order to 
 amend without prejudice to, 164, 165 ; order as to taking 
 bills served within Jurisdiction, 174 ; within what periods, 
 174 ; entering note for, 175; how obtained against Attorney. 
 
INDEX. 481 
 
 PBO CONFESSO, (Continued.) 
 
 Cteneral, married women, 175; when defendant abroad 
 refused to attend to give evidence, 116 ; taking, when 
 served out of jurisdiction, 176; when service not per- 
 sonal, 176 ; when notice of motion puhlished, 177 ; 
 against corporations, 178 ; defendant may argue case 
 on hearing, 179 ; when decree absolute, 179 ; when not, effect 
 of service of, 180 ; time allowed defendant on, 181 ; when 
 decree not absolute, 181 ; petition tore-open, 182 ; re-hearing 
 of, 295; what decree may be made, 182; what interests 
 bound by, 183 ; bill taken, for non-production or non-attend- 
 ance to be examined, 197 ; hearing on Wednesday and follow- 
 ing days, 322 ; to be set down seven days before, with Clerk 
 of Kecords and "Writs, 322 ; what Plaintiff to produce at, 325, 
 326 ; order against infant or lunatic invalid, 353. 
 
 PBODUCTION of documents, effect of demurrer on order for, 185 ; 
 order as -to, 190 ; practice and decisions as to, 190, 191, 192, 
 193, 194, 195 ; what privileged, 192 ; service on Solicitor 
 sufficient, 195 ; order as to form of afEdavit on, 195 ; neglect 
 of order, how punished, 197 ; on examination of parties, 198 ; 
 appeal from Master's ruling, 198 ; applications as to, to be in 
 Chambers, 215 ; in Master's office, 243. 
 
 PEOPEETY AND TEUSTS ACT, 98 ; forfeiture under lease, 98, 
 99 ; waiver of condition in lease, 99 ; right of reversioner 
 to rent, 98. 
 
 PUBLICATION, what necessary, under Quieting Titles Act, 85, 86- 
 (See QuiBTiNQ Titles Act), when passes, 202; service by, 172, 
 173, 302 ; of advertisement for sale, 313. 
 
 PUECHASEE from trustees, executors, &c., relievedfrom enquirer as 
 to due execution of powers in certain cases, 105 ; action by, 
 for concealment of falsification of title, 106. 
 
 Q. 
 
 QUEEN'S COUNSEL, may hold sittings, ] 17 ; have power of Judge, 
 117 ; appeal from decision of, 117 ; orders on decrees by, 213, 
 214. 
 
 QUIETING TITLES ACT, 11 ; who may apply under, 77 ; objects 
 of Act, 77, 78 ; when title not fee simple, 79, 847 ; applica- 
 tion to be by petition, 79, 90 ; Solicitor's duty, 79; not a pro- 
 ceeding on behalf of contest, 79 ; certificate to be registered, 
 79 ; what particulars necessary in support of petition, 79, 80, 
 91 ; practice under, 81 ; affidavit of petitioner, contents of, 
 82, 90 ; may be dispensed with, 83 ; certificate of counsel 
 what to shew, 84 ;wnat evidence necessary, 83, 84 ; as to Statuta 
 31 
 
482 INEEX. 
 
 QUIETING TITLES ACT, {Continued.) 
 
 of Limitations, 84 ; tax titles, 84 ; deBtruction of title deeds 
 how proved, 84; allowance of time further evidence, 85; publi- 
 cation, what necessary; 85 ; inconsistent claims, 85 ; further 
 puhlication, 86 ; payment of taxes to he proved, 86 ; excep- 
 tions to which claims proveed subject, 86 ; adverse claims, 
 86 ; proceedings contested practice, 87 ; security for costs to 
 be given, 87 ; costs between party and party solicitor and 
 client, 87; withdrawal of petition on payment of costs, 88 ; 
 reference of case to Master, Deputy Master or counsel, 88 ; 
 Judge may give one or separate certificates, 88 ; directions as 
 to execution and registry of certificate, 88, 89 ; Begistrar's 
 certificate to be endorsed, 89 ; title to be absolute from date 
 of certificate, 89, 90 ; certified copies to be admissible evi- 
 dence of certificates, 89 ; proceedings in case of Chancery 
 Sale, 90 ; form of conveyance, 90 ; case of specific perfor- 
 mance, 90 ; case of establishment of legitimacy or marriage, 
 91 ; persons under disability, 91 ; petition to re-open 92 ; 
 bona fide purchasers, subsequent to, certificate not affected by, 
 92; no abatement by death, &c., 92 ; informatity not to in- 
 validate proceedings, 92, 93 ; appeal to lie, 93 ; punishment 
 in case of fraud or concealment, 92 ; case of forgery, 93 ; 
 conviction not to affect remedies of parties aggrieved, 94; 
 case of refusal to answer questions, &c., 94 ; powers of referee 
 94, 95 ; forms, 95, 96, 97. 
 Oedbes as to, only one claim of title to be included in one 
 petition, 346 ; in cases under 2nd section, Clerk of Re- 
 cords and Writs to attend Judge befcfre reference, 347, to 
 whom petitions may be referred, 347 ; Inspectors appointed, 
 and their duties defined, 347, 348, 350, 352 ; Clerk of 
 Records and Writs to deliver certificate for registration, and 
 forward petitions to referee, 348 ; what evidence in support 
 of title required, 349 ; where advertisements to be posted, 
 349, 350|; Local Masters' duties, 347, 348, 350 ; certificate of 
 conveyance, how prepared and signed, 361 ; fees of solicitor 
 and referee, 352 ; of inspector, 353. 
 
 REAL CHATTELS, assignment of, 106 ; vendor liable for conceal- 
 ment of title, 8, 106, 107. 
 
 REAL ESTATE, Power of Attorney to convey by married women, 
 108; legatee having charge on, may have administration or- 
 der, 150. 
 
 RECEIPT, for rent, when to relieve from forfeiture, 101. 
 
 RECEIVER, on pro con decree, 182 ; appointed in Chambers on death 
 of former Receiver, 215; orders as to, 269; how appointed, 
 
INDEX. 483 
 
 EECEIEEE, {Continued.) 
 
 269, et seq. ; sureties to be proposed, 210 ; opposite party may 
 propose another person, 270 ; no report on appointment of, 
 260 ; appointment to be filed, 271 ; practice and decisions ag 
 to, 271, 274. 
 
 RECOGNIZANCE, order as to, 270. 
 
 EEDEMPTION, cestui que trust of mortgage money should be party, 
 133 ; as to other parties, 154 ; delivery of possession may be 
 ordered, 337; and foreclosure, 338. 
 
 EEFEEEE OP TITLES, see Quietms Titles Act, 77 ; and Oedeks, 
 846. 
 
 EEFEEENCE TO MASTEE, proceedings on, 220, 221, 247, 249. 
 
 EEGISTRAE, appointment of, 4 ; Clerk, 4 ; to receive no fees, 4 ; 
 tg render accounts, 5 ; orders as to, 121 ; to settle orders, 121 ; 
 to issue decrees, 121 ; briefs to be left with, 151, 208 ; evi- 
 dence and exhibits, 208 ; cheques to be signed by, 305 ; office 
 to be open in vacation, 32S ; to issue precipe decrees, 327 ; 
 Deputy Eegistrars, appointment of, 5;; duties of, 6. 
 
 EEGISTEAE'S CLEEK, duties of, 128. 
 
 EEGISTEATION, of decree in alimony suits, 13, 73; oi lis pendens, 
 32 ; of certificate under Quieting Titles Act, 79. 
 
 EE-HEAEING, in lunacy, 75 ; terms for, 321 ; setting down for, and 
 notice of, 322 ; may be before or after enrolment, 293 ; who 
 may re-hear, 294, 840 ; costs of, 294, 340 ; must be within six 
 mouths, 294; of interlocutory orders within four months, 
 294 ; from what period time to be reckoned, 294 ; no petition 
 of re-hearing, 295 ; deposit on, 295 ; may be limited to part 
 of decree, 295 ; pro confesso decree may be re-heard, 295 ; re- 
 hearing of order of Judges' Secretary, 295. 
 
 RELATOE, where necessary, 138, 139; <?osts of, 139; change on 
 death of, 189 ; in case of a corporation, 141. 
 
 EELEASE, of part of, premies from rent charge, effect of, 102. 
 
 EELIEP, from breach of covenant, 98, 99, 100 ; endorsement of on 
 lease, 100. 
 
 EELIGIOUS INSTITUTIONS, Act respecting, 59 ; sale of lands of, 
 69 ; to be by public auction, 59 ; private sale after, offer by 
 69 ; execution of deed, 59 ; when notice to be given to con- 
 gregation, 69 ; account of trustees, 60 ; summary jurisdiction 
 over, 60. 
 
 EEPLICATION, name of solicitor or party filing to be endorsed, 
 131, 183 ; notice of filing to be given, 134 ; amendment of 
 bill after, 162 ; order as to, 198 ; practice and decisions on, 
 199 ; admissions to be made by, 199 ; when to be filed, 199 ; 
 after amendment, 200 ; motion for decree to be before, 263 ; 
 vacation not reckoned in time for filing, 320. 
 
484 INDEX. 
 
 EEPOBT, Masters warranted to settle, 260 ; date of, 261 ,- objections 
 to, to be raised before Master, 261 ; costs of appeal from, 
 261 ; documents not to be recited in, 262 ; absolute in four- 
 teen days from filing 262 ; time of vacation not to be reckon- 
 ed, 320 ; duplicate may be.issued, 262 ; how appealed against, 
 262. 
 
 KENT, effect of Property and Trusts Act on reversioner's right to, 
 99, 100 ; receipt for, to relieve against breach of covenant, 
 when, 101. 
 
 KENT CHARGE, effect of releasing part of premises from, 102. 
 
 BESTS, taking accounts with, 223, 224. 
 
 EE-TAXATION, of costs, application for, B6. 
 
 REVENUE, Jurisdiction in cases of, 11. 
 
 REVIEW, petition to be presented instead of, bill of, 29S | et. seq. 
 
 REVIVOR, orders as to, 2^9 ; practice and decisions on, 298, 300 ; 
 office copy of order of| to be served, 801 ; endorsement on, 
 302; to be moved against within fourteen days, 301; petition 
 on motion to discharge to be set down and notice served, 
 822 ; time of vacation not reckoned, 220 ; amendment of 
 bill when suit defective, 302 ; notice of motion for, 304 ; 
 filing supplemental statement, 804. 
 
 REVISION of taxation by Local Master, 228. 
 
 RULES OF DBGISION, 10. 
 
 S. 
 
 SALARIES, of Judges, 2; of Officers of the Court, 4, 6. 
 
 SALE, of infants' estate, 23, et. seq, ; tO, 366, et. seq. ; petition for to 
 be in the matter of the infant, seV; to propose scheme, 857; 
 infants to be produced, ^eT ; witnesses to be examined viva 
 voce, 358; of lands of religious institutioQS, 59; of settled 
 estates, 69 ; of timber when tenant for life, 103 ; by trustees, 
 when, 103, 104; orders as to, 310; mode of proceedings on, 
 311; advertisement and conditions, 312; upset price, 312; 
 who may bid, at 313 ; publication of advertisement, 818; 
 Master or his Clerk may conduct sale, 313 ; report on sale, 
 314 ; opening biddings, 814 ; delivery of possession, 314 ; 
 delivery of abstract and proceedings therein, 316 ; no report 
 on title, .S15 ; sale decree in;mortgage suits, 324 ; immediate 
 sale may be ordered, 324 ; deposit to obtain, 326 ; defendant 
 taking conduct of sale, deposit to be returned, 326. 
 
 SANCTION, of Court necessary to sale of property of religious in- 
 stitutions, 59; of Attorney-General to action for falsification 
 of title, lot. 
 
INDEX. 485 
 
 SCANDAL, taking pleadings off files for, 157 ; wlien motion to be 
 made, 158 ; costs of, 158. 
 
 SCHEDULES, to orders, 365; of exhibits at hearing, 208 . 
 SCIENTIFIC PERSONS, Court may obtain assistance of, 366. 
 SCINTILLA JUEIS, see Pboperty and Trust Act, 105,106. 
 SECEETAEY, see Judges'' Seceetaby, 124. 
 
 SECURITY FOR COSTS, on removal of case from Surrogate Court, 39; 
 on taxation of costs, 60 ; when plaintiff out of Jurisdiction 
 291; or plaintiffs address omitted, 160,291; time for an- 
 swering does not lun till security given, 220 ; bond to be 
 to Registrar or Deputy Registrar, 290; when ordered, 291, 
 292, 293. 
 
 SELLER, of land or chattels liable for concealing title, 106. 
 
 SEQUESTRATION, Court may order, 46; when granted, 280,281; 
 to be addressed to Sheriff, 281, on pro con decree, 182 ; ex- 
 amination pro interesse tuo, 317. 
 
 SEEGEANT-AT-ARMS, appointment of, 4 ; warrant to unnecessary* 
 120. 
 
 SERVICE OF BILLS, orders as to, 162 ; may be on grown up person 
 at dwelling house, 166 ; on partners ; 167 ; after service 
 dismissal only with costs, 167 ; amendment after, 167 ; time 
 for answering after, 167, 168; on corporations, 168,169; 
 time within which to be effected, 169; allowance of service 
 after the time, 169 when order to be served, 170 ; practice as 
 to substitutional service, 170, 171 ; by publication, 172, 173 ; 
 proof of identity required on service abroad, 174; form of 
 affidavit of service, 174; taking ^ra con after service, 174, 
 176; when service not personal, 176; of office-copy decree 
 in pro con case, 180 ; of order to produce, 196 : of notice 
 to commit, 196, 282 ; of proceedings in Chambers, 216 ; in Mas- 
 ter's office, 243, 250; of notice of motion or petition, 257; prac- 
 tice and decisions as to ; 267, 268, 259 ; of notice of hearing, 
 322; of order of revivor, 301, 302; of order to amend, 162; 
 may be dispensed with, 162; of supplemental statement, 
 304 ; of office-copy decree on party added in Chambers, 217, 
 218 ; in Master's offlcBj 250; on parties to be bound thereby, 
 151, 162; hours for effecting service, 220, 221 ; order as to, 
 131; upon town and country agents, 132, 133; where 
 solicitor has absconded, 133; address for to be endorsed, 
 133; acceptance of, 135; need not be verified by affidavit, 
 135 ; of warrants, 221, 249 ; on incumberances in mortgage 
 suits, 330; of notice where state of account changed, 336. 
 
486 INDEX. 
 
 SETTLED ESTATES, Act respecting, 69 ; what are, 10. 
 
 SETTING DOWN, see Hearing, 201. 
 
 SHAEEHOLDER, practice as to filing Wll, by one on tehalf of all, 
 lifS. 
 
 SHERIFF, to assist and obey Judge's, 8; not to execute process un- 
 less stamped, 61 ; process to be served by, 282, 283 ; seques- 
 tration to be addressed to, 281 ; liability for escape, 280 ; to 
 serve all process, &c., 283. 
 
 SINGULAR, includes plural, 120. 
 
 SILENCE, of answer do admission, 186. , 
 
 SITTINGS OF THE COURT, order as to, 321 ; rehearing terms, 
 321 ; weekly sittings, 321 ; order of business at, 321, 322 ; 
 causes to be set down for, 322. , 
 
 SOLICITOR, taxation of costs, 48 et. seg., : by client, 50 ; see Bills of 
 Costs, lien for costs, 54; orders as to affidarvits &c., under 
 Quieting Titles Act, 79 ; liable for concealment of title, 
 106, 107. 
 Obdees relating to, 131; name and address to be endorsed on 
 writ &c., 131; when irregularity in not doing so waived, 
 132; not necessary except on first proceeding, 132; ser- 
 vice on, 132; acceptance of service by, 135 ; acceptance of 
 bill equivalent to personal service, 175 ; order for changing, 
 135 ; striking off the roll, 187 ; liable for costs of scandalous 
 or impertinent pleadings, 157, 158; filing bill without 
 client's sanction, 160; misconduct of ^ground for indul- 
 gence to client, 163; order to produce to be served on, 
 190 ; notice to commit to be served on, 280 ; to attend hear, 
 ing, 209 ; to pay costs occasioned by neglect, 209 ; Master 
 may appoint one for a class, 222 ; service of petition of re- 
 view on, 296; in administration suits, 343. 
 
 SOLICITOR AND AGENTS' BOOK, to be kept by Clerk of Records 
 
 and Writs, 127 ; by Deputy Registrar, 129. 
 SPECIAL CASES, act respecting, 69 ; may be amended, 70 ; practice 
 
 respecting, 72. 
 SPECIAL CIRCUMSTANCESj necessary for taxation, when, 60, 52 ; 
 
 certificate of by Taxing Master, 54 ; on application by third 
 
 parties for taxation, 56, 57 ; for retaxation, 56; Master may 
 
 report, 223. 
 SPECIFIC PERFORMANCE, Court may award damages, 72. 
 STAMPS, Act respecting, 66, et seq. 
 STATE OF FACTS, not to be brought into Chambers, 217; or 
 
 Master's office, 246. ' 
 
INDEX. 487 
 
 STOP ORDERS, -when granted, 278. 
 
 SUITORS' ACCOUNTS, how to be kept, 807, et seq. 
 
 SUITORS' FEE FUND, amount payable for on each pleading, 86 ; 
 for what purpose applicable, 36 ; Clerk of Records and "Writs 
 to pay in and make returns, 127, 128 ; Deputy Registrars 
 to remit, 131. 
 
 SUMMARY APPLICATION, from Surrogate Courts, 40. 
 
 SUMS, in printed bills to be in figures, 156; clerical error in may be 
 amended, 162 ; to be stated in dollars and cents, 212. 
 
 SUPPLEMENTAL ANSWER, when permitted, 187 to 189, 303, 305. 
 
 SURCHARGE, in Chambers, 217; in Master's office, 248. 
 
 SURETIES, of committee of lunatic, 18 ; of receiver, 280 ; rule as 
 to parties, 153, 154; maybe made parties in mortgage suits, 
 824 ;*ou bond for security for costs, 290, 293. 
 
 SURROGATE COURTS, Act respecting, 37 ; appeal from, 88 ; re- 
 moval of cause, 38, 39 ; Surrogate Clerk to be an officer of 
 Court of Chancery, 39 ; duties of, 40. 
 
 TARIFF, of fees and disbursements to be allowed to solicitor, 395 ; 
 counsel, S98 ; Master, 399 ; Registrar, 399 ; Judges' Secretary, 
 399; Clerk of Records and Writs and Deputy Registrars, 400 ; 
 special examiners, 400 ; Sheriffs, 401. 
 
 TAXATION OF COSTS, Act regarding, 48 et seq. ; by third parties, 
 55 ; of pleadings, &c., unnecessarily long, 158 ; as to revivor 
 for, 306 ; (see Costs, and Taxins Officbk.) 
 
 TAXING OFFICER, (see Bin of Costs, 48, et seq.); may require 
 assistance from those of other Courts, 58 ; may dis-allow 
 unnecessary costs, 285 ; what costs between party and party, 
 286; to tax all bills above S30, 287; Local Masters to 
 transmit bills to, 287 ; to allow only one set of costs to 
 same class of defendants, 288 ; to tax costs without express 
 reference, 289. 
 
 TAXES, payment of to be proved under Quieting Titles Act. 86. 
 
 TAX TITLES, evidence necessary in proceedings under Quieting 
 Titles Act, 84- 
 
 TENANTS, (see Reoeivbr, 273); for life, of proceeds of sale of tim- 
 ber in cases of, 103. 
 TERMS, (see Sittings of Coubt,) 321, 323 ; re-hearing terms, 321 322; 
 
 hearing terms, 321. 
 TIME, within which to answer bill, 167, 168; within which bill;, 
 must be served, 169 ; extending time for payment of mort-. 
 gage money or re-opening foreclosure, 321, 322 ; order as to,, 
 319 ; day of date not inclusive, 319 ; when last day is holi- 
 day proceeding proper if done on next day office is open, 319 ^ 
 
488 INDEX. 
 
 for what purposes time in vacation not to be reckoned, 820; 
 time to answer or demur stayed after service of order for 
 security for costs, 320 ; hours of service on solicitors, 320, 
 321 ; Court has power to abridge, &c., 521 . 
 
 TIMBER, sale of, right of tenant for life, 103. 
 
 TITLE DEEDS, proof of loss of necessary, S4. 
 
 TITLE, action against parties for concealment as to, 106 ; proceed- 
 ings to prove, 814 to 316 ; one claim of, only to be included 
 under petition to quiet, 846 ; determined without reference 
 to Court of Law, S59. 
 
 TRANSMISSION, of pleadings, 10, 204,"36O, 
 
 TRAVERSE, in lunacy, 15. 
 
 TRIAL, new in lunacy, IT, li; see. 
 
 TRUSTS, Property and, Act, 97 ; decree for execution of, 150. 
 
 TRUSTEES, of laud of Religious Institutions, 69 ; sale by; 69 ; ac- 
 counts of, 60; may apply to Judge for advice, 118 to 165 
 limitation of liability of, 116 ; and see Master's OfpiCb, 240 
 accounts of, 223,e« seq.; rules as to parties to suit, 161 to 158 
 power of to sell realty, 103, 104. 
 
 TRUSTEE ACT, proceeding under, 149. 
 
 UNDERLEASE, effect of Property and Trusts Act on condition re- 
 garding, 98. 
 
 UNDERTAKING, as to damages in injunction cases, 73. 
 
 UNSOUND mind, persons, of, see Lunatic Infants, 853, 
 
 UPSET price, order regarding, 812. 
 
 USHER, appointment of, 5. 
 
 USES, how to take effect under Property and Trusts Act, 105. 
 
 "VACATION, not to be reckoned in time for moving against Master's 
 order, 260 ; order regarding, 323 ; duration of. Long and Christ- 
 mas respectively, 328 ; what holidays offices to be shut on 
 823 ; Clerk of Records and Writs, and Registrar's offlces to 
 be open during, for certain purposes, 323. 
 
 VARIATION, of decree or order, petition for, 296 to 291. 
 
 VENDITIONI EXPONAS, payment to be enforced by means of Writ 
 0^48. 
 
 VENDOR, liable to action for concealment of defect in title, 106 ; 
 
 delivery of abstract by, after sale by Court and proceedings 
 
 thereon, 814 to 316. 
 VENUE, change of, 201 ; who may apply for, 202 ; to be in Chambers, 
 
 215 J practice as to laying, 202. 
 
INDEX. 489 
 
 VERDICT, bill of costs not referred to taxation after, unless under 
 special circumstances, 51. 
 
 VERIFICATION of abstract proceedings for, 815, 316. 
 
 VESTING, orders jurisdiction to make, 81 ; decisions as to, 32. 
 
 VIOLENCE of husband, see Alimont, 18. 
 
 VIVA VOCE, witnesses to be examined, 10, 84. 
 
 VOID, proceedings not duly stamped to be, 68. 
 
 WAIVER, of condition in lease, effect of, 99 ; of irregularity, 132, 
 186, 861 ; of conditional order, 214. 
 
 WARRANT, to sergeant-at-arms unnecessary, 120 ; to be given by 
 Master onproceeding,221 ; Master's directions sufficient with- 
 out, 247, 249; to settle report, 260, to appoint Receiver, 
 270; to commit, see Pbochss, 279. 
 
 WASTE, injunction to stay, 11 ; suit in nature of, who may institute, 
 161. 
 
 WIFE, service of bill on husband for, 166 ; practice as to taking 
 pro. con. against, 195, see Mabbied Women. 
 
 WILLS, jurisdiction of Court as to, 12; enactment as to powers of 
 trustees or devises under, 108; action against vendors &c. 
 for concealment of, 106 ; effect of devise of land in subject 
 to mortgage, 116. 
 
 WITNESSES, examination of, 10; on circuits, W;vivavoce, 10;outof 
 jurisdiction, 205 ; commission to examine to issue on Mas- 
 ter's certificate, 243 ; generally, see Heabiho, 205 to 207 ; may 
 be examined under order of reference, 248 ; may be examin- 
 ed on notice of motion or petition, 260 ; decisions and prac- 
 tice as to, 260 to 262; reasonable notice to be given to, 262 ; 
 two sufficient, to execution of power of appointment, 102. 
 
 WORDS, interpretation of, 120, 121. 
 
 WRIT, of Arrest Act, 40 ; of attachment, 42 ; of fien facias and 
 
 venditioni exponas, 43 to 45 ; of sequestration when to issue, 
 
 45; of injunction, 274; of assistance, 281. 
 WRITTEN AND PRINTED PLEADINGS, order regarding. 156' 
 
INDEX OF FOEMS. 
 
 AFFIDAVITS. ' 
 
 To prove mortgage debts 432 
 
 For final order 434. 
 
 Of execution 433 
 
 Verifying account of personal estate 433 
 
 Verifying account of real estate 437 
 
 Verifying receiver's account 438 
 
 Of publication of advertisement 438 
 
 Of auctioneer 439 
 
 For appointment of guardian 439 
 
 For commission 839 
 
 DEMUEKEES. 
 
 For want of parties 427 
 
 For want of equity 427 
 
 For want of equity and want of parties 428 
 
 MISCELLANEOUS. 
 
 Bond for security for costs 445 
 
 Bond for guardian of infant 460 
 
 Eeceivers' accounts 448, 449 
 
 NOTICES OF MOTIONS. 
 
 For decree 440 
 
 For injunction 440 
 
 To dissolve injunction 440 
 
 For receiver 441 
 
 Appeal from Master's Eeport 441 
 
 For order ^0 con 441 
 
 For guardian ad litem • 442 
 
 To dismiss bill 442 
 
 For leave to amend 442 
 
 For commission 443 
 
 For vesting order 443 
 
 For delivery of possession 443 
 
 To compel payment of purchase money 443 
 
 NOTICES. 
 
 Of filing answer 444 
 
 Of filing replication 444 
 
 Of [production 444 
 
 To inspect papers 445 
 
 Of examination and hearing.. 445 
 
 Ofhearing on further directions 445